text:
    Falls versus Reis.
    1. An owner laid out streets through his land adjoining a city; he opened Falls street east and west through his land parallel with the city streets and extended other streets through his land north to Falls street. He devised lots north of Falls street, describing them as bounded by the streets extended to Falls, but not opened through the devised part of his land. Held, that the devisees took to the middle of the streets although not extended or opened.
    2. When a street is called for as a boundary, the middle is intended, unless the contrary plainly appear.
    November 18th 1873.
    Before Read, 0. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Lawrence county : No. 173, to October and November Term 1873.
    This was an action of ejectment, brought October 26th 1871, by Thomas H. Falls, for a strip of land 292 feet long, in the city of New Castle. Both parties claimed under Thomas Falls, deceased.
    The decedent for many years before his death was the owner of a piece of land adjoining New Castle on the north and afterwards included in it. In his lifetime he had opened Falls street, running east and west through his land, parallel with the streets of the town, and about 100 feet north from the north line of the town, and had extended to Falls street, all the streets of the town running north and south. Some of these had been opened through his property in his lifetime, but Mill street and East street, at the time of his death, extended no further north than Falls street. North of Falls street was the “ Homestead ” lot, and east of that lot was the “ Hill” property.
    By his will dated April 8th 1864, and proved October 21st 1865, he devised his lands in lots to his children and grandchildren, describing them as bounded by streets and alleys, some of which were and some were not opened. Amongst other clauses in the will were the following:—
    Item 2 — “ I give and bequeath unto my beloved wife Sarah Falls, during her natural life, the homestead where I now live, being-about two acres of land in the borough of New Castle aforesaid, together with all the buildings and improvements thereon, bounded by Mill street, East street and Falls street. Also I give unto my said wife, her heirs and assigns for ever, the north half of a lot in said New Castle, bounded on the west by Mill street, north by John Horner, east by an alley, and south by part of same lot with the buildings and appertenances.
    Item 10 — “ I give and bequeath to my son Thomas H. Falls, his heirs and assigns, my homestead property in New Castle, containing about two acres, with the buildings and improvements thereon, being the same property herein bequeathed to my wife during her natural life, he to get possession of the same at the death of my said wife. Also a corn crib and wagon-house on the street leading from Mercer street to my residence, together with the land on which they stand.
    “ And I hereby direct and order that my executors hereinafter named, do sell, at public or private sale, as they may deem best, my real property, known as the Hill property, in said borough of New Castle, bounded east by George Henderson, north by Joseph Palls, west by my homestead, and south by road, containing about one and a half acres, and divide the proceeds of the sale thereof equally among my following-named grandchildren,” &c.
    The Homestead and Hill property were used together by the testator in his lifetime. There was a fence along part of the division.
    Neither the part of Mill street, nor the alley described as bounding the half lot devised to his wife, was opened, nor was the street mentioned in the devise to the plaintiff as leading from Mercer street ftp the corn-crib.
    The strip claimed in this ejectment is the western half of East street, if it were extended north of' Palls street.
    The following sketch may elucidate the case:

    Under the power in the will the executors sold the Hill property; the defendant claims under the purchaser. The widow of the testator died in 1870.
    ■The case was tried April 3d 1873, before Lowrie, P. J., of the Thirtieth District, when the plaintiff gave the foregoing facts in evidence ; and also an extended plot of the property of the testator as laid out by him, and a map of the city of New Castle.
    Upon this evidence the court directed a nonsuit. This was assigned for error by tbe plaintiff on tbe removal of tbe record to tbe Supreme Court by writ of error.

      J. MoMichael and Dana ¿- Long, for plaintiff in error. —
    When a street is called for as a boundary tbe middle thread is always intended : 2 Wash, on Real Property 680; Cox v. Freedly, 9 Casey 124; Paul v. Carver, 12 Harris 207. The testator intended that East street should be extended as a street.

      J). B. $ JS. T. Kurtz, for defendant in error.
   The opinion of the court was delivered, January 10th 1874, by

Agnew, J. —

The question in this case is upon the interpretation of the will of Thomas Falls, and depends on his intention to make his devises conform to the extension of certain streets of the city of New Castle into his property adjoining the city. The plaintiff, one of the devisees, brought ejectment for th$ western half of East street, as extended in a right line through the testator’s property, claiming under the will to the middle line of East street as the boundary line of the Homestead lot devised to him. That Thomas Falls intended to adopt the streets of New Castle when extended into his property, and make them the boundaries of many of the devised properties, is very plain. He owned a long piece of ground about four hundred and forty feet wide, and extending nearly the entire length of New Castle from east to west, on part of which he had laid out lots corresponding to the streets of New Castle, and extended them into this part. A portion of the map given in evidence is set out in the paper-book, and from it we discover that beside the Homestead four other parcels are bounded in the will by streets by name which have not been extended in fact into the property. These are devised to H. E. Falls, I. S. Falls, S. Dana and Fanny Falls. There are other devised lots bounded by streets by name, and standing evidently in a similar relation to the town plat, but which, from the want of the full map, we cannot identify so readily as those mentioned. Twenty-one parcels are so described, making the presumption a violent one that Thomas Falls, in making his will, intended that the divisions of his property should correspond to the streets of New Castle, when they should be extended, believing what was evident to the mind of every one, that his property must necessarily fall into the town, and that it was better he should make it conform at once in its division, to the town plat.

The Homestead lot devised to his wife'for life, and then to the plaintiff in fee, he bounds expressly by Mill street, East street and Falls street. The defendant claims the lot known as the Hill lot, sold by the executors under a power in the will. This Hill lot is bounded expressly by the Homestead on the west. Its western boundary depends therefore on the line where the eastern boundary of the Homestead lot shall be found to be. The testator bounds the Homestead by East street, so that the middle line of East street becomes the western boundary of the Hill lot, according to the well-known rule that when a street is called for as a boundary, the middle line of the street is always intended, unless the contrary plainly appear. It was an error to direct a nonsuit.

Judgment reversed, and a procedendo awarded.


source: Caselaw Access Project

author: Sharswood, J. —

license: Public Domain

text:
    Antram versus Thorndell.
    1. Moore having a subscription list of scholars to a Normal School gave it to Antram to collect, and drew an order on Antram in favor of Thorndell, which Antram accepted payable “out of the firstmoney collected.” Antram left the list with Moore who collected the money. In a suit by the payee against Antram, Held, the mere leaving the list was not authority to Moore to collect and discharge the subscribers.
    2. There was evidence that Antram was to hold the list, the subscribers come to him and pay : that he did not know he had authority to collect nor that he was accountable on the list. The court charged that Antram was liable for Moore’s default. Held to be error, the question was for the jury.
    3. Evidence that when the list was left with Antram by Moore, it was understood between them, that Antram was not to collect the money, but it was to be paid to him by the subscribers, was admissible.
    4. Antram was treasurer of the school; for mere neglect in not collecting the subscriptions he was liable to the association and not the payee.
    November 18th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 61, to October and November Term 1874.
    This was an action of assumpsit, brought February 4th 1870, by William Thorndell against Caleb Antram. The cause of action was the following paper:—
    “ Mr. Caleb Antram, Treasurer of the Fayette County Normal School — Sir: Please pay to Wm. Thorndell the sum of two hundred and sixty-eight dollars, out of the money collected from the students of the above school, and deduct the same from my account. B. M. Moore.
    Uniontown, April 1st 1867.”
    “ I will pay the above bill out of the first money collected.
    Caleb Antram,
    Treasurer of Fayette County Normal School.”
    The case was tried March 25th 1873, before Gilmore, P. J.
    After giving the paper in evidence, the plaintiff testified: The consideration of the order was to pay Moore’s boarding account with plaintiff; all the payments from students were made soon after the order was given; plaintiff received but $13 or $14; Moore was about commencing to teach.
    The plaintiff called defendant, who said:—
    “ I never collected any money from the students; I never tried to collect any, and did not know that I had authority to collect; two dollars were paid into my hands by one of the subscribers; the subscribers were to come to my house and pay it; all I had to do was to receive it; I had the subscription list; one-half of the subscription was to be paid in advance; one-half of the list would have paid Mr. Thorndell’s bill; I accepted the order before the advance-money was paid; I suppose most of the subscribers were able to pay; I believe that I destroyed the subscription list when I supposed it was all paid; the subscription paper was in my hands from the beginning of the school; before any of the subscribers had paid; I destroyed the subscription paper after the school was closed; I did not know that it had all been paid, but supposed it had; I did not know that I was accountable in any way; it was two years, perhaps more, after the school closed that I destroyed the subscription list; I never agreed to collect the subscription, but only to receive it and pay out; the list of subscribers handed to me was a list copied by Moore; it purported to be a copy of the original; I accepted the order before the subscription list was given to me ; he, Moore, gave me this in order that the subscribers might pay into my hands.” .
    The plaintiff having closed, defendant by his counsel offered to prove that at the time he accepted Moore’s order that it was understood between defendant and Moore that defendant was not to collect the money, but that it was to be paid to him by the subscribers.
    The offer was objected to by the plaintiff, rejected by the court and a bill of exceptions sealed.
    The following are points of defendant with the answers:—
    1. The acceptance by defendant of Moore’s order in favor of the plaintiff, operates 0 only as an equitable transfer of funds belonging to Moore, that came into defendant’s hands after the acceptance by him of said order.
    Answer: “ This is the primá, facie effect of the obligation created by the acceptance, but- if the defendant might have received the money from the subscribers, and did not because he allowed the obligation of the subscribers to remain in the hands of Moore, who Antram says he believes received the subscription money, it would be otherwise.”
    4. The legal effect of defendant’s endorsement on Moore’s order is that of an acceptance “ when in funds,” and it is incumbent on the plaintiff to show that funds came to defendant’s hands which were not paid to plaintiff before there can be a recovery in this action.

      Answered in the general charge.
    The court charged the jury that “ the defendant will be bound to pay the full amount of his acceptance if the jury are satisfied that the subscription paper was sufficient to pay the same. If Antram left the original subscription paper in the hands of Moore, who received the money on the same, it was the fault and neglect of Antram. He should have procured the possession of the original subscription — this would have authorized him alone to receipt; but he committed this power to the hands of Moore, and if there has been a loss he must look to Moore. If the evidence is believed it is plain that it was through the act or omission of the defendant that the money was not paid to him.”
    The verdict was for the plaintiff for $304.82.
    The defendant took out a writ of error.
    He assigned for error, the rejection of his offer of evidence, the answers to his points and the charge of the court.
    A. D. Boyd and T. B. SearigTit, for plaintiff in error. —
    The defendant was not bound by his acceptance to pay at all events, but only when in funds from the subscriptions; that he was, plaintiff was bound to show: Story on Bills, sect. 74; Davis v. McGrath, 10 Barr 171; Atkinson v. Manks, 1 Gowen 707; Maber v. Massias, 2 Wm. Blacks. 1072.
    6r. W. K. Minor, for defendant in error.
   The opinion of the court was delivered, January 5th 1874, by

Sharswood, J. —

We think that this case was erroneously taken from the jury. The order was drawn upon a fund and was to be paid out of the moneys collected from the students of the Eayette County Normal School, and the acceptance was special to pay the bill out of the first money collected. It was agreed that no money had actually come to the hands of the defendant below except a very small amount which had been paid to the plaintiff. The contention was, however, that the defendant had authorized Moore to make the collection for him, and that whatever money had been received by him was to be considered as in the hands of Antram. So the learned judge charged the jury, instructing them that “ if Antram left the original subscription paper in the hands of Moore, who received the money on the same, it was the fault and neglect of Antram. He should have procured the possession of the original subscription — this would have authorized him alone to receipt; but he committed this power to the hands of Moore, and if there has been a loss he must look to Moore.” The mere leaving of the original subscription paper in the hands of Moore was not of itself an authority to collect the money and discharge the "subscribers. It would be evidence but for the jury. Antram testified: “ The subscribers were to come to my house and pay it; all I had to do was to receive it. The list of subscribers handed to me was a list copied by Moore; it purported to be a copy of the original.” Whatever inference of authority might be drawn from Antram’s leaving the original list in the hands of Moore would seem to be rebutted by this statement. For the same re.ason that the question in the cause was purely one of fact, the evidence offered by the defendant ought to have been received. It was that at the time he accepted Moore’s order it was understood between him and Moore that he (Antram) was not to collect the money, but that it was to be paid to him by the subscribers. This certainly bore directly upon Moore’s authority to receive the money for the defendant. It tended to sustain the position that Moore was to send the subscribers to Antram, and this was the design of having the original list in his hands. It would undoubtedly have been safer and more regular for Moore to have kept the copy and handed Antram the original. Moore seems to have been the teacher of the school and may have been instrumental in procuring the subscriptions. The list may therefore have been left with him to procure other subscribers. But all this was for the jury. It is too clear for argument that for mere neglect of his duty as treasurer, if thereby the money due upon the subscriptions was lost to the 'school, the defendant was not liable to Thorndell, but to the association which had resolved to establish “ The Fayette County Normal School,” and elected the defendant their treasurer.

Judgment reversed, and a venire facias de novo awarded.


author: Williams, J. —

text:
    Sterling versus Stewart.
    1. Stewart lent to Sterling and Cooper $250 each and took their joint note for $500. Sterling was liable for half the note as principal and half as surety.
    2. Stewart told Sterling that if he would pay half the note he would give him a receipt in full for his halfSterling paid the half and the receipt was given. Held, that this did not release him from the other half.
    November 18th 1873.
    Before Bead, C. J., Askew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Gfreene county: Of October and November Term 1873, No. 87.
    This was an action of debt, brought by A. P. Stewart against Abraham Sterling and J. C. Cooper. Sterling only appeared and pleaded.
    The cause of action was the following note, which the plaintiff gave in evidence and rested:—

      “ One day after date with seven per cent, interest we or either of us promise to pay to the order of A. P. Stewart the sum of Five Hundred Dollars. For value received as witness our hands and seals Nov. 9, 1866.
    “ Signed, J. C. Cooper. [seal.]
    Abraham Sterling, [seal.]”
    There was evidence for the defendant that when the money for which this note was given was borrowed, it was understood by all the parties that Cooper was borrowing $250 and Sterling $250, and that they were to be individually bound each for $250 and no more. Cooper went first to Mr. Stewart and drew the money and signed his name to the note as drawn up by Stewart. A few days after this, Sterling went to Stewart and told him he had come to give his note for the $250 he had borrowed; that Stewart produced the note which he had drawn up and which Cooper had signed, but Sterling, seeing it was a joint note, refused to sign it, telling Stewart that he and Cooper were each liable for the one-half of the money and no more, and saying that he did not want to enter into a note that would bind him for more than the amount borrowed by him. He refused to sign the note until Stewart assured him that he intended to hold each of them only in that way, and promised to give him a receipt in full of his share and in discharge of his liability of the note, when he had paid the one-half of it. Sterling afterwards paid one-half of the note and interest, and Stewart gav.e him a receipt; that it was “ in full of his share of the note that Stewart on several occasions told the defendant, in presence of other parties, and told other parties, that he only held him for the one-half of the note; that Sterling told Stewart, at the time he paid his half of the note, and at other times, that he had better make the other half of the note from Cooper, to which Stewart replied that he would take Cooper for it, and that he, Sterling, need not trouble himself about it.
    In rebuttal Stewart testified that he had given Mr. Sterling a receipt, but that it was in other words than those testified to by the defendant’s witnesses, and also denied having entered into any agreement to release Sterling.
    The defendant submitted these points:—
    1. If the jury believe that Stewart, immediately before and at the time of signing the note, told Sterling that if he would sign the note he would not hold him for more than the one-half of it, and that in pursuance of this promise he signed the note, it is a fraud to seek to recover the whole of this note from Sterling, and Sterling having paid the one-half of the note before this suit, the plaintiff is entitled to recover.
    2. If the jury believe that Stewart told Sterling that if he could pay his half of the note that he (Stewart) would give him a receipt in full for his half of the note, and that Sterling then paid him the one-half the note and interest', and Stewart gave him a receipt therefor, in which he stated “ that it was in full for his half of the note given by Cooper and Sterling to A. P. Stewart,” the plaintiff is not entitled to recover.
    The court (Gilmore, P. J.) answered:—
    “ The first point is correct, and if you have evidence sufficient to satisfy you that the note was signed under the circumstances detailed in the point, the plaintiff cannot recover.
    “ Second point refused.”
    The verdict was for the plaintiff for $347.50.
    The defendant took a writ of error, and assigned for error the answer to his second point.

      Downey $ Son, for plaintiff in error.

      Wyly $ Buchanan, for defendant in error.
   The opinion of the court was delivered, March 2d 1874, by

Williams, J. —

The plaintiff below — the defendant in error— lent to Cooper & Sterling $500 — $250 to each — and took from them a joint and several note or obligation, under seal, for the whole amount, payable one day after date, upon which this suit was brought. Under the instructions of the court, the jury found that the defendant, Sterling, did not sign the note, as alleged, in pursuance of a promise on the part of the plaintiff that if he would sign it he would not hold him for more than the half of it. He was therefore clearly liable for one-half of the note as principal debtor, and for the remaining half as the surety of Cooper, his copromissor. He paid, as is admitted, the one-half of the note, and he insists that he is discharged from his liability for the residue because the plaintiff agreed that if he would pay it, he would give him a receipt in full for his half of the note; and when ho paid it, the plaintiff gave him such a receipt. Was this a release or discharge of his liability as surety for the residue of the note ? Why should it be, if the plaintiff did not promise or agree to acquit or release him from his liability? No such promise or undertaking is suggested in the 'point submitted by the defendant, the refusal of which is assigned as error; nor can it be inferred or implied from the facts of which it is predicated. The court was asked to charge “ that, if the jury believe that Stewart told Sterling that if he could pay his half of the note that he would give him a receipt in full for his half of .the note; and that Sterling then paid him the one-half of the note and interest, - and Stewart gave him a receipt therefor, in which he stated ‘ that it was in full for his half of the note given by Cooper and Sterling to A. P. Stewart,’ the plaintiff is not entitled to recover.” What, then, did the plaintiff promise and what did he do — taking all the facts set out in the point to be true ? He agreed that if Sterling “ could pay his half of the note that he would give him a receipt in full for his half of the note,” and he kept his promise to the letter. There is no suggestion in the point of a promise by the plaintiff to release Sterling, on the payment of his half of the note, from his liability as the surety of Cooper for the remaining half. How, then, can any such promise or undertaking be inferred or implied ? A promise without any consideration is void ; and the law will not infer or imply a promise if there is no consideration or moral obligation to support it. Here there was neither. The defendant in paying the one-half of the note only discharged the obligation resting upon him as principal debtor; and the plaintiff in receiving it, was under no obligation, legal or moral, to release him from his liability for the residue as the surety of Cooper. The vexed question, whether an express promise or undertaking by the creditor to release the debtor from liability for the whole debt, on payment of a part, is valid and binding; or whether it is to be regarded as a naked promise and void for want of consideration, does not arise here, and therefore it is not necessary to discuss it. It is manifest that the defendant’s point is not predicated of an express promise to release him from all liability for the note on the payment of the half thereof, nor can such a promise be inferred from the facts on which it is based. And it is equally clear that the receipt in full for his half of the note is not in itself a release of his liability as surety for the remaining half. There was therefore no error in refusing to charge as requested.

Judgment affirmed.


author: Mercur, J. —

text:
    Silveus’s Executors versus Porter et uxor.

    1. A wife owned a tavern; she entered into partnership, her partner to divide with her the profits of the bar and stable; she to have all the profits of boarding and lodging; the partner sold furniture to the wife to be paid for from her share of the profits of the bar and stable ; it was so paid for. Held, that it was the property of the wife and not liable for the husband’s debts.
    2. Property purchased by a wife on the credit of her separate estate or of her earnings in its management is not liable for the debts of the husband.
    3. Brown v. Pendleton, 10 P. P. Smith 419; Rush v. Vought, 5 Id. 437, followed.
    November 18th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Greene county: Of October and November Term 1873, No. 188.
    This was an action of trespass d. b. a., brought by William A. Porter and Elizabeth his wife, for her use, against Henry B. Silveus; the defendant having died, A. A. Purman and D. M. Silveus, his executors, were substituted.
    The action was against the defendant as sheriff, for selling, under an execution against Porter the husband, goods which Mrs. Porter alleged belonged to her.
    The case was tried September 19th 1873, before Campbell, P. J.
    Mrs. Porter was the owner of a hotel called the “ Greene House.” On the 22d of January 1868, she entered into an agreement with James P. Cosgray, by which she was to give a room in the house and fit it for a bar-room, and the stable, on her lot for the use of the parties jointly; Cosgray “ to give his time and labor as an equivalent for the rent of the bar-room, and have entire control of the bar and bar-room.” He was to give the stable on a lot belonging to him as an equivalent for Mrs. Porter’s. stable, both stables to be used for stabling horses for the joint benefit of the parties; each to furnish one-half the capital to buy liquors, oats, hay, corn and other things necessary for the bar and stable, the profits and losses of the bar and stable to be borne equally by the parties; each to pay half the wages of the hostlers, but Mrs. Porter to bear two-thirds of the expénse of their boarding; settlements and division of the profits of the bar and stable to be made weekly, but Cosgray not to receive any of the profits for boarding and lodging travellers, nor to be responsible for any loss ; the partnership to commence from the succeeding April Term of the Court of Quarter Sessions, when a tavern license was to be procured, and continue for one year.
    The parties went into possession on April 1st 1858, and continued nnder the agreement until October 1st, when Mrs. Porter took the stable, and Cosgray took the bar, for which he was to pay §15 a week. Cosgray bought chairs, range, tables, bedsteads, &c., for the house, and Mrs. Porter paid for them out of her share of the profits of the bar and stable; they were paid for when the parties settled in October.
    To December Term 1870, James Allen recovered a judgment against William A. Porter for $215, on which an execution was issued on the 7th of November 1870, the furniture above mentioned levied on and sold by the defendant as sheriff; to recover damages for this, the present action was brought.
    The defendant submitted the following points, all of which were overruled:—
    1. If the jury believe that Mrs. Porter and James P. Cosgray entered into partnership to keep a hotel in the Greene House, which belonged to Mrs. Porter, and that by the agreement between them Mrs. Porter was to keep up the table and chambers, and Cosgray was to keep the bar and stable, and that the table and chambers produced no profit, and that the bar and stable were profitable, which profits were to be equally divided between them— that Cosgray furnished the bar with liquors and the stable with feed, &c., and that with the proceeds of Mrs. Porter’s share of the profits Cosgray bought and paid for the property sold by the sheriff, then the said property was not her separate property and could be sold to satisfy the debts of her husband, and the plaintiffs are not entitled to recover.
    2. If the jury believe that Mrs. Porter bought the goods sold by the sheriff, from James P. Cosgray, on her own credit, then they were not her separate property within the meaning and spirit of the Act of 1848, and were liable to be sold for the debts of her husband, and the plaintiffs are not entitled to recover.
    3. If the jury disbelieve all the evidence of the plaintiff, the plaintiff cannot recover.
    4. If the 'jury disbelieve part of the evidence of the plaintiff and believe the residue, she is not entitled to recover.
    5. If the jury believe all the evidence of the plaintiff, the plaintiff cannot recover.
    The court charged:—
    “We charge you that it is conceded here that the property known as the Greene House belonged to Mrs. Porter as her separate property. If you find that the bar-room and stable were the separate property of Mrs. Porter, and that Cosgray furnished the personal property involved in this suit to her upon the credit of her said property, and that it was afterwards paid for out of the proceeds of the venture of Cosgray and Mrs. Porter, concerning the bar and stable, your verdict must be for the plaintiff.”
    The verdict was for the plaintiff for $343.83.
    The defendants sued out a writ of error, and assigned for error the answers to their first, second and third points, and the charge to the jury.

      Gf. W. Gf. Waddell and Downey Son, for plaintiffs-in error.— •
    What arises from a wife’s earnings or is bought on her credit, belongs to the husband: Raybold v. Raybold, 8 Harris 311; Bradford’s Appeal, 5 Casey 515; Keeney v. Good, 9 Harris 355; Gault v. Saffin, 8 Wright 307; Hallowell v. Horter, 11 Casey 375; Robinson v. Wallace, 3 Wright 129; Hoffman v. Toner, 13 Id. 233.

      P. M. Sayers, for defendants in error,
    cited Manderbach v. Mock, 5 Casey 43; Brown v. Pendleton, 10 P. F. Smith 419; Bucher v. Ream, 18 Id. 426.
   The opinion of the court was delivered, January 5th 1874, by

Mercur, J. —

Since the Act of 11th of April 1848, it has been settled by numerous decisions of this court that the proceeds of the wife’s separate property cannot be seized for the husband’s debt: Manderbach v. Mock, 5 Casey 48; Rush v. Voight, 5 P. F. Smith 437; Brown v. Pendleton et al., 10 Id. 419; Musser v. Gardner, 16 Id. 242. If her property be real estate, the fact that her husband’s labor assisted in creating the products derived therefrom, does not make them liable for his debt: Rush v. Voight, supra.

Property purchased by a wife on the credit of her separate estate, or by her earnings, derived from the management of it, is protected from her husband’s creditors: Brown v. Pendleton et al., supra. The jury has found that the property in question was acquired by Mrs. Porter upon the credit of her separate estate, and that it was afterwards paid for out of the proceeds which she derived from Cosgray’s occupancy of the same. The evidence clearly justified this finding. There is no error in the charge. The first and fourth assignments are not sustained. Under the evidence the court was correct in refusing to affirm the point covered by the second assignment. There was no testimony that Mrs. Porter acquired the property otherwise than as her share of the profits under her agreement with Cosgray. It is error to submit a question of fact to the jury of which there is no evidence: Sartwell v. Wilcox, 8 Harris 117; Lower et al. v. Clement, 1 Casey 63.

The manner in which the point covered by the third assignment was presented, is so unusual we at first supposed the word disbelieve” had been inadvertently used for “ believe,” and that the court must have so understood it. An examination of the original written point, however, as well as the fact that in the fifth point presented by the defendant below, the language is changed to “believe,” leaving the point otherwise the same, satisfied us it was designed as written. The plaintiff below could not recover without evidence. Evidence is such proof of the fact alleged as satisfies the mind. If all the testimony given in support of the allegation -is disbelieved, it necessarily follows that the mind would be unsatisfied ; the evidence would be insufficient, and the plaintiff could not recover. As the credibility of witnesses is a proper question for the jury to pass upon, and the point submitted clearly raised that question, it should have been affirmed. The affirmance, however, should have been accompanied by proper explanations and instructions, as to weighing the testimony and testing the credibility of witnesses. The third assignment is therefore sustained.

Judgment reversed, and a venire facias de novo awarded.

Asnbw, J., dissented.


text:
    Harris’s Estate. Smith and Vance’s Appeal.
    1. When a testator gives to his next of kin in classes, leaving the proportions doubtful, the several classes will take according to the Statute of Distributions.
    2. Artificial'rules must yield to the intention of the testator, expressed or implied.
    3. A bequest was “ unto my brother, William Harris and my sister Anna Vance's heirs the balance of my goods and chattels and credits and lands equally except Rev. John A. Vance, he must have all he owes me at this time over and above the said heirs of William and Anna’s heirs.” At the date of the will William was dead leaving three children, and Anna dead leaving six. Held, that the “ balance” was to be divided amongst the nine children.
    4. Baskin’s Appeal, 3 Barr 304; Risk’s Appeal, 2 P. E. Smith 269; Witmer v. Ebersole, 5 Barr 458, remarked on.
    November 19th 1873.
    Before Read, C. J., Ag-new, Sharswood, Williams and Mercur, JJ.
    Appeal from the Orphans’ Court of Lawrence county: No. 154, to October and November Term 1873.
    This was a proceeding in the Orphans’ Court for the partition of the real estate of which Samuel Harris died seised, commenced January 9th 1872, by the petition of William J. Smith, guardian of Nancy J. Smith and others, minor children of Eliza A. Smith (formerly Yance), deceased. The question in the case was the construction of the residuary clause of the will of Samuel Harris, deceased, viz.:—
    “I give and bequeath unto my brother, William Harris, and sister, Anna Yance’s heirs, the balance of my goods and chattels and credits and lands, equally, except Rev. John A. Yance, he must have all that he owes me at this time over and above the said heirs of William Harris and Anna Yance’s heirs.”
    At the making of the will William Harris and Anna Yance were both dead; William Harris left three children, Cynthia Murphy, Sarah B. Hope and Charlotte Hood; Anna Yance left six children, Rev. John A. Yance, William Yance, Nancy Yance, Lydia McClimond, Eliza A. Smith and Jane Gardner. Mrs. Smith afterwards died, leaving four minor children, of whom William J. Smith, the petitioner, is guardian. Jane Gardner also afterwards died leaving five children.
    The petition prayed for partition of the real estate into equal purparts amongst all the nephews and nieces of the testator. The daughters of William Harris answered the petition, averring that they were together entitled to one-half the real estate, and the children (and their descendants) of Anna Yance were together entitled only to one-half.
    The Orphans’ Court decreed that the real estate should be partitioned, “ giving to .the heirs of William Harris, deceased, the one equal half thereof, and to the heirs of Anna Vance, deceased, the one equal half thereof according to the will of Samuel Harris, deceased.”
    Smith, the guardian, and the other heirs of Anna Vance appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.

      J. McMichael (with whom were B. B. B. B. Kurtz), for appellants. —
    Under the intestate laws the nephews and nieces of the testator would take per capita: Miller’s Appeal, 4 Wright 387; Krout’s Appeal, 10 P. F. Smith 380; and assuming that the construction here is doubtful the presumption is that the testator intended to leave the land to be distributed according to the intestate laws: Witmer v. Ebersole, 5 Barr 458; Bender’s Appeal, 3 Grant 210.

      Bana Long, for appellees. —
    The Statutes of Distribution fix who are intended by “heirs” of the brother and sister, but nothing more: McNeilledge v. Galbraith, 8 S. & R. 45. The “heirs ” were to take in classes: Miller’s Appeal, 11 Casey 323; Minter’s Appeal, 4 Wright 111; Gring’s Appeal, 7 Casey 292; Risk’s Appeal, 2 P. F.
   The opinion of the court was delivered, January 5th 1874, by

Sharswood, J. —

The cases cited in the opinion of the learned court below undoubtedly sustain the position that as a principle of construction wheretó a testator gives to his next of kin in classes, leaving it doubtful in what proportions they are to take, he will be presumed to have had the familiar rule of the Statute of Distributions in his mind, and the several classes will take not per capita but per stirpes. But all artificial rules of this kind must yield to the intention of the testator, whether expressed or implied. A comparison of Baskin’s Appeal, 3 Barr 304; Witmer v. Ebersole, 5 Id. 458; and Risk’s Appeal, 2 P. F. Smith 269, will evince this very clearly. Now whatever might have been the case had this residuary bequest been “ unto my brother William Harris and sister Anna Vance’s heirs, the balance of my goods and chattels and credits and lands equally,” we think the exception which follows indicates unmistakably that the testator had not in his mind two classes of legatees. “ Except Rev. John A. Vance, he must have all that he owes me at this time over and above the said heirs of William Harris and Anna Vance’s heirs.” Now the Rev. John, A. Vance, being one of the children of Anna Vance, stood in that class, and had the testator regarded these next of kin in. two classes, it is most reasonable to presume that the preference given to him would have been over the other heirs of that class, and not as it is over both classes. The exception seems to give a construction to the word “equally ” immediately preceding, “ equally, except Rev. John A. Yance,” so as to preclude the interpretation which may be considered as sanctioned by Risk’s Appeal, — that equally was to be applied only to the members of each class.

Decree reversed at the costs of the appellee, and record remitted to the Orphans’ Court of Lawrence county, that a decree may be there entered conformably to this opinion.


author: Agnew, J. —

text:
    German Township School District versus Sangston.
    1. Tire building-tax of a school district cannot be diverted to ordinary purposes.
    2. A mandamus execution to collect a judgment against a school district for building, cannot divert the ordinary taxes from appropriation to debts contracted before it was issued, for the schools during the period for which the directors have authorized them to be kept open, although that be more than five months, and although the taxes may have been paid into the treasury after the mandamus was served.
    3. The surplus of the annual school-tax may be appropriated for the payment of buildings if it does not prevent the schools from being kept open for five months in the subsequent year.
    4. If the directors contract debts for building so as to interfere with exercise of their discretion to keep the schools open more than five months, it is a determination against the exercise of such discretion.
    November 19th. 1878.
    Before Read, C. J., A&new, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1873, No. 131.
    The matters brought up for review by this writ of error, were proceedings in the nature of an execution by Isaac 0. Sangston against the School District of German Township.
    On the 4th of March 1873, Sangston recovered a judgment for $3150.51 against the school district for building a school-house. The judgment being unpaid, on the 24th of March he petitioned the Court of Common Pleas to direct a writ to issue commanding the directors and treasurer of the district to cause the amount of the judgment to be paid to him out of any moneys of the district unappropriated, or if there be no such moneys, out of the first moneys that shall be received for the use of the district.
    On the same day the court (Gilmore, P. J.) directed a writ to issue according to the Act of Assembly.
    The command of the writ was in the words of the prayer of the petition.
    The sheriff made this return:—
    “March 25th 1873, made known to the directors and treasurer of said school district the decree of the court in the premises and commanded as within set forth. To which command they made answer that there were no moneys of said district in their hands unappropriated, and that the tax for building purposes levied by the board of school directors, who organized in June 1873, would be the first money applicable to the payment of this writ.”
    On the 3d of June, Sangston presented a petition to the court, setting forth : “ That at the date of the service of this writ on the directors and treasurer of German township, to wit, March 25th 1873, there were moneys in the treasury of said district, subject to the command of said writ unappropriated, and that since the date of said service, a large sum of money has come into the hands of said treasurer, for the use of said district, and applicable to this writbut that the directors and' treasurer refused to pay, &c. He prayed for an attachment to enforce obedience to the writ.
    On the same day the court granted a rule on the defendants to show cause why an attachment should not issue.
    On the 25th of June, the defendant filed an answer to the petition : “ That a small amount of money, if any, of any kind, was in the hands of the school treasurer of said district at the time, viz, March 25th 1873, said fi. fa. was served on him or the directors, and that since that date, up to June 21st 1873, when the said treasurer settled his account with the directors, some eight or nine hundred dollars have been collected on his duplicate, out of which he paid orders issued by the directors, to the amount of $209.84. That there are some $300 on his duplicate uncollected. That all of said money in the treasurer’s hands on the 25th of March 1873, or that has come in since that day, was collected for school purposes and was originally levied and appropriated for school purposes, and orders to the amount of over $500 still unpaid, have been drawn on the same, and none of such money was part of the building tax levied at any time by said directors, the whole of said building tax having been paid out before said date. And said directors and treasurer are unable therefore to pay any money on said fi. fa., but intend to levy a building tax before July 1st 1873, and collect the same and apply it as far as it will reach towards the payment of said judgment.”
    After hearing testimony and argument, the court (Campbell, P. J.) made the following order:—
    “ And now, June 26th 1873, the rule to show cause,” &c., “came on to be heard, when it appeared, 1. That the debt for which the judgment was obtained was for the erection of a schoolhouse in Masontown, in said township of German. 2. That for the year ending May 31st 1873, the directors had levied both a school and building tax, the latter of which had been exhausted for building purposes before the service of the execution. 3. That at the time of the service of the execution there "was no money in the treasury, except a small sum raised from the levy for school purposes, and that an additional sum, amounting to several hundred dollars, and raised from the same source, has since been paid in, a part of which yet remains, the residue having been paid out on orders for school purposes. ' 4. That no taxes of any kind have as yet been levied for the school year commencing June 1st 1873. Whereupon the court make the rule for an attachment absolute, and direct the defendants to appropriate to the payment of the plaintiff’s writ so much of the money so in their hands as may not be necessary to defray expenses of continuing the schools in German township five months during the year ending May 31st 1873.”
    The defendants took a writ of error and assigned the foregoing order for error.

      A. Sowell (with whom was O. B. Boyle), for plaintiff in error.—
    Referred to Act of May 8th 1854, sect. 28, 30, 33, Pamph. L. 623. Warrants drawn before the service of the mandamus would be entitled to all the money on hand when drawn and what should thereafter come in until they were satisfied: Pollock v. Lawrence Co., 2 Pittsburg Rep. 137; Commonwealth v. Floyd, Id. 342. The general school-tax by the Act of 1854, is limited to what is necessary to keep the schools in operation: Blair v. Boggs School District, 7 Casey 274. Taxes levied for a specified purpose are not unappropriated unless there be an excess beyond answering the purpose: Larimer v. Pitt Township, 2 Pittsburg Rep. 352; Evans v. Pittsburg, Id. 405.

      T. B. Searight, for defendant in error,
    cited Monaghan v. Philadelphia,, 4 Casey 209.
   The opinion of the court was delivered, January 5th 1874, by

Agnew, J. —

The principal question in this case is whether any of the ordinary school taxes can be required to be applied to a debt contracted for building purposes. There is a noticeable difference between the provision in the Act of 8th May 1854, for collecting the tax for ordinary school purposes, and that for collecting the tax for building purposes. The thirty-third section, providing for the latter, declares that it shall not exceed the amount of the regular annual tax for such year, and shall be applied solely to the purpose of purchasing and paying for the ground and the buildings or erection of buildings thereon. The sections relating to the ordinary annual tax have no restriction, except that to be inferred from the duty of keeping the schools open for at least five months in the year. The building tax cannot be diverted to ordinary purposes; but it is not a consequence that none of the ordinary taxes shall be appropriated to the payment of debts for building. The schools must be kept open for five months every year, and may be longer in the discretion of the directors. So far as debts have been contracted for the schools during the discretionary period, before the mandamus execution shall have been issued, it would be improper to give the mandamus the effect to divert the ordinary taxes from the past expenses for the schools. The law having made the appropriation for the past year, it would be unjust to deprive teachers of their salaries, or to omit to pay the necessary expenses, whether the money was in the treasury before or came in after the service of the mandamus. So far, therefore, as the court ordered the mandamus to take up the money in the treasury, or to come in from the ordinary taxes, which ought to be applied to the debts contracted for the' schools during the year gone by, we think they erred. To apply the limit of five months to the past expenses would interfere with a discretion already exercised by the board — a discretion exercised under the law. It would be a harsh rule to give the mandamus a retroactive effect. But we cannot perceive the justice or legal rule which would exempt the surplus of the annual taxes from the payment of debts contracted for buildings; provided it does not prevent the schools from being kept open for five months in the subsequent year. There must be school-houses, while the building tax cannot exceed the amount of the ordinary taxes. It would be just, therefore, that a deficiency of the building-tax should be made up from the ordinary revenue, so far as it will not interfere with the' legal limit of time the schools must be kept open. The future is always within the power of the board, and if they have contracted debts for buildings, so as to interfere with the exercise of their discretion beyond... the five months in the coming or present year, it is in effect their own determination against the exercise of the discretionary power. The current year (1873) was within their power, and the order of the court could properly direct the application of all moneys to the execution not required to pay the necessary expenses of maintaining the schools for five months in that year. So much of the order as diverted the money in, or to come into the treasury, from the payment of the debts contracted for the schools before the notice of the mandamus given to the board, was erroneous. The order of the court of June 26th 1873, making the rule for the attachment absolute, is now directed to be modified according to the views above stated, and it is ordered that the record be remanded to the court below for the purpose of making a final decree according to the principles we have stated; and the costs of this appeal are ordered to be paid by the defendant in error in this case.


author: Asnew, J. —

text:
    Staup versus The Commonwealth.
    1. A juror called in a capital case said : “ I have formed and expressed an opinion as to guilt or innocence of prisoner ; read evidence of former trial; still entertain that opinion, which it would take some evidence to remove; this opinion would not bias or influence my judgment if I were sworn as a juror; this opinion was formed from reading evidence of former trial. If sworn as a juror I could and would make up my verdict exclusively upon the evidence given here, uninfluenced and unbiassed by my present opinion.” Held, the juror was incompetent.
    2. The opinion which should exclude a juror must be of a fixed and determined character, deliberately formed and still entertained, which in an undue measure shuts out a different belief.
    3. When the opinion of the juror has been formed upon the evidence given in a former trial or has been so deliberately formed as to become a fixed belief of the prisoner’s guilt, he should be excluded.
    4. Where impressions are formed on rumor or newspaper statements which the juror feels conscious he can dismiss, or has no fixed belief or prejudice, and can say he can fairly try the prisoner on the evidence freed from the influence of the impressions, he is competent.
    5. On the separate trial for murder of one jointly indicted with another: the other is not a competent witness for the defendant.
    6. The Supreme Court will not review the facts on the question of guilt or innocence, but only determine whether the ingredients of murder in the first degree exist.
    7. Commonwealth v. Flanagan, 7 W. & S. 420; McCauslandu. McCausland, 1 Yeates 378; Shay v. Commonwealth, 12 Casey 305, approved; Grant v. Commonwealth, 21 P. F. Smith 495, followed.
    November 19th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Oyer and Terminer of Fayette county : No. 64, to October and November Term 1873.
    At September Term 1872, Jacob Staup and Henry Staup were jointly indicted for the murder of Alpheus Glover. The indictment was continued until December Term 1872. At December Term Jacob Staup was separately arraigned and pleaded “ Not guilty.” He was tried at that term and found guilty of murder in the first degree.
    A rule to show cause why a new trial should not be granted was made absolute and a new trial ordered.
    On the 4th of March 1873 he was again tried before Gilmore, P. J., and his associates.
    A number of the jurors when called said that they had formed opinions as to the guilt or innocence of the prisoner, from hearing or reading the testimony on the former trial, which opinions still rested on their minds. They were all challenged for cause, hut the challenges were overruled.
    Amo'ngst others was J.' Evans Einley, who, in answer to the question put to him, said: — ■
    “ Have formed and expressed an opinion as to the guilt or innocence of the prisoner; read evidence of former trial; still entertain that opinion, which it would take some evidence to remove; this opinion would not bias or influence my judgment, if I were sworn as a juror; this opinion was formed from reading evidence of former trial.”
    Prisoner challenged him for cause. He further said:—
    “If sworn as a juror, I could and would make up my verdict exclusively upon the evidence given here, uninfluenced and unbiassed by my present opinion.”
    The challenge was- overruled and the juror sworn. At the request of the prisoner, a bill of exceptions was sealed.
    After the Commonwealth had closed her ’ease, the prisoner offered to call Henry Sta-up, who was jointly indicted with him, to prove that Henry, and not the prisoner, had shot the deceased.
    The Commonwealth objected to the competency of the witness, because he was a co-defendant with the prisoner, and was in the same position as to competency as if on trial himself.
    The witness was rejected on the ground that he was jointly indicted with the prisoner, and the court sealed a bill of exceptions.
    Upon the cross-examination of Elizabeth Glover, a witness for the prisoner, the Commonwealth offered to ask her “ if she did not say to A1 Bowie, in the presence of your father, on the evening of the murder, that this thing didn’t surprise me a bit; that I had been expecting it a long time,” for the purpose of affecting her credibility.
    The prisoner objected, that the opinion of this witness or any other, or any want of surprise, or any expectation she may have had, wherever expressed, is not material to the issue trying. The prisoner cannot be affected by it. ■
    Per Curiam: — “We think the evidence competent, as it might have some bearing upon her veracity. We think it would he but slight, if any; but on this account it is received, and a bill of exceptions sealed.”
    After the evidence had been closed, the prisoner made the following offer:—
    “And now, March 10th 1873, the counsel for prisoner offers to recall Andrew Boyd (who testified as to a pistol, said to be in possession of prisoner some two or three years ago), and to produce said pistol, and to prove by him that it is the same, and then to show that it will not carry the rifle-ball; and that they were not aware that this could be proved until after the adjournment of the court Saturday evening.”
    Commonwealth objects, “that the case having been closed and all their witnesses gone home, it is too late to admit the evidence. Also that the prisoner and his counsel verbally admit that they had the pistol in possession all the week, and should have produced it; that the Commonwealth anticipated the production of a pistol and had its witnesses present to meet it, which witnesses are not present, having been discharged by the court two days since.”
    Per Curiam“ This case was closed on Saturday about five o’clock, when the witnesses on the part of the Commonwealth were publicly discharged. The offer to open the case is now made on Monday morning, to which time the court stood adjourned, to hear the arguments of counsel and give the case to the jury. This evidence would be opening the case on a material point. We think it would not be proper to hear this evidence now overruled.”
    The offer was rejected, and a bill of exceptions sealed.
    The evidence, both of the Commonwealth and the prisoner, was very voluminous. To understand the questions considered and decided by the Supreme Court, does not require that even a synopsis of it should be given.
    The prisoner on this trial was convicted of murder in the first degree.
    He removed the record to the Supreme Court by writ of error, and there assigned fourteen errors. The first ten were to the overruling of the prisoner’s challenges of jurors — the tenth relating to the challenge of J. Evans Finley.
    11. The refusal to allow Henry Staup to testify.
    12. Allowing the question to Elizabeth Glover.
    13. The refusal to allow Andrew Boyd to be recalled.
    14. The ingredients necessary to constitute murder in the first degree were not proved to exist.

      O. JE. Boyle (with whom were W. S. Playford, T. B. Searight and Qollins Baily), for plaintiff in error.

      A. B. Boyd, District Attorney (with whom were Cf. W. K. Minor and B. H. Lindsey), for the Commonwealth.
   The opinion of the court was delivered, January 5th 1874, by

Asnew, J. —

We think there was error in the refusal of the court to sustain a number of the prisoner’s challenges for cause. How far an opinion formed by a juror upon the guilt or innocence of the prisoner is sufficient to sustain a challenge is not well settled. A half a century ago, when jurors were easily obtained, who had heard nothing of the cause, or so little as to have no fixed opinions upon-the guilt of the prisoners, the rule was held strictly to exclude all who had in any manner formed and expressed an opinion.

At the present day, when newspapers, railroads and telegraphs have made intercommunication easy, and where reporters are alive to every occurrence, and the daily press eager to serve up the details of crime, the difficulty of obtaining jurors free from these wide-spread influences, has made courts less ready to listen to this cause of challenge. In the contrariety of opinions prevailing, it is needless to look abroad for precedents, but rather to be guided by the reasons lying at the bottom of the right of challenge. The great purpose of this right is to secure a fair and impartial trial. Chief Justice Marshall said, in the trial of Aaron, Burr for treason, that “ the court has considered those who have deliberately formed and delivered an opinion on the guilt of the prisoner, as not being in a frame of mind to weigh the testimony, and, therefore, as being disqualified to sit as jurors in the case:” 1 Burr’s Trial 367. Chief Justice Taney laid down the following test, says Mr. Wharton in his Crim. Law, § 2981: “If the juror has formed an opinion .that the prisoners are guilty, and entertains that opinion now, without waiting to hear the testimony, then he is incompetent. But if from reading newspapers or hearing reports, he has impressions on his mind unfavorable to the prisoners, but has no opinion or prejudice which will prevent him' from doing impartial justice when he hears the testimony, then he is competent.” It is evident that in the view of these eminent jurists, the opinion which should exclude a juror must be one of a fixed and determined character, one that has been deliberately formed, and is still entertained, and, therefore, in an undue measure shuts out a different belief. This is a prejudgment of the case, and constitutes a bias too strong to make the juror a fair and impartial judge. “ But pre-judgment and giving an opinion on the statement of certain facts are very different things.” “ The first (it was said in McCausland v. McCausland, 1 Yeates 378) implies a strong disposition to favoi one side or the other — a determination to find in one way^let the ■evidence be what it may. The last involves the truth of certain facts and propositions in the sentiments delivered, and impressions thus made may be effaced by the production of evidence.”

Justice Rogers said of' this distinction that its good sense is its best recommendation: Commonwealth v. Flanagan, 7 W. & S. 420. His approval lends strength to it, and we may by use of it, find the middle ground upon which this ease can be determined. Whenever,-therefore, the opinion of the juror has been formed upon the evidence given in the trial at a former time, or has been so deliberately entertained that it has become a fixed belief of the prisoner’s guilt, it would be wrong to receive him. In such a case the bias must be too strong to be easily shaken off, and the prisoner ought not to be subjected to the chance of conviction it necessarily begets.

But where the opinions or impressions of the juror are founded on rumor or reports, or even newspaper statements, which the juror feels conscious he can dismiss; where he has no fixed belief or prejudice, and is able to say he can fairly try the prisoner on the evidence, freed from the influence of such opinions or impressions, he ought to not to be excluded. If exclusion should follow from such unsettled convictions, it would often be difficult to obtain a jury. These principles would have excluded all those jurors who had formed opinions still resting on their minds from hearing or reading the testimony given on the former trial; hut it is sufficient for the purpose of reversing the sentence to say, that the tenth error is sustained. These principles, it is hoped, will be a guide for the next trial.

On the 11th assignment of error to the rejection of Henry Staup as a witness, we'may say that Shay v. The Commonwealth, 12 Casey 305, is a case in point. Defendants jointly indicted for murder, though severing in their defence cannot testify for each other. The love of life is too strong to be placed in the balance against truth, and the result might often be, that both defendants would be acquitted when both were guilty.

It is conceded that if the testimony of the Commonwealth be accepted as true, all the ingredients to constitute murder in the first degree were proved to exist, and the 14th assignment of error must therefore fail. But, as in the argument, we listened to a discussion of the facts stated as though we were jurors, sitting to decide upon the guilt or innocence of the prisoner, it is proper to repeat what we have heretofore decided, to wit: That the Act of' 15th February 1870, 1 Brightly’s Dig. 610, does not make it our duty to review the facts on the question of the guilt or innocence of the prisoner, but only for the purpose of determining whether the ingredients necessary to constitute murder in the first degree, shall have been proved to exist. This has been so ably and clearly stated by Thompson, C. J., in the recent case of Grant v. Commonwealth, from Chester county, 21 P. F. Smith 495, it needs no further development.

As this case must go hack for a new trial, the refusal to recall Andrew Boyd becomes unimportant. At most, it was a matter of discretion in the then attitude of the case. The 12th assignment needs no notice. We discover no error in it.

The sentence of the Court of Oyer and Terminer is reversed, and the record is ordered to he remanded to the court below, together with a copy of this opinion, setting forth the causes of reversal, for further proceeding in the said court, and a venire faeias de novo is awarded.


text:
    Briceland versus The Commonwealth.
    1. A jury on a triál for murder was charged and retired on the last day of the term; and not agreeing the court was adjourned from day to day for three days beyond the end of the term, when a verdict of guilty was rendered. Held, that the jurisdiction of the court did not end with the term.
    2. The Act of April 14th 1834 enables the judges to hold jury trials at any time between terms by precept, as they were formerly accustomed to do.
    3. This includes the power to adjourn from day to day, which needs no precept in a ease already begun, if necessity require.
    4. When a defence is alibi, the proof must cover the time when the offence was committed, so as to preclude the possibility of the prisoner’s presence at the place of the crime.
    5. The prisoner’s failure to prove an alibi when set up by him, does not relieve the Commonwealth from proving that he committed the crime.
    6. Mills v. Commonwealth, 1 Harris 627; Williams v. Commonwealth, 5 Casey 102, remarked on.
    November 20th 1873.
    Before Bead, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Oyer and Terminer of Washington county: No. 73, to October and November Term 1873.
    Henry Briceland was indicted and tried for murder at the February Term of the Court of Oyer and Terminer of Washington county, on the 17th day of February 1873, before Acheson, P. J., and both his associates.
    The February Term of the court ended on Saturday., March 1st.
    Thé leading facts as to the murder were these: About midnight of the 4th of December 1872, John Allingham, living in Eldersville, Washington county, was killed whilst in bed and asleep in his own dwelling-house. His death was caused by the discharge of a piece of iron water-pipe, loaded with powder and slugs, placed on the top rail of the porch and the window-sill, near the head of his bed, and fired by a fuse communicating with the pipe. The prisoner was arrested next day on the charge of having committed the murder.
    The evidence, as is usual in such cases, was circumstantial, and was made up of the testimony of very many witnesses. The questions decided by the Supreme Court will require no other statement of it but that relating to the defence of alibi, as contained in part of the charge of Judge Acheson.
    The prisoner gave evidence for the purpose of showing that he was at the house of a man named Chap. Truáx at the time the murder was committed. This house was about two and a quarter miles from the residence of the deceased.
    Mrs. Truax testified that on the night of the murder the prisoner came to their house and went to bed shortly after nine o’clock, in a room adjoining her chamber, into which there was a door from the prisoner’s room, which was not closed. “ I waked about one o’clock, and saw Brieeland’s coat on the chair, and heard him snore and grit his teeth.” Prisoner was waked in the morning by her husband about five and a half o’clock, and came into the kitchen and ate his breakfast before six o’clock.
    Chap.-Truax, the husband, testified substantially as his wife had done.
    On the question of alibi the court charged :—
    “‘We will now turn your attention to an important ground of defence. The prisoner relies upon evidence in the nature of an alibi ; that is to say, that he was at another place at the time the crime was committed. This is a defence which, when satisfactorily made out, necessarily overturns the strongest circumstantial evidence, and it is sometimes the only available defence to an innocent man. But in every case where the defence of alibi is resorted to, it should be very closely scrutinized, for the reason so forcibly expressed by an eminent judge: ‘ It is a defence often attempted by contrivance, subornation or perjury. The proof, therefore, offered to sustain it is to be subjected to a rigid scrutiny; because, without attempting to contest or rebut the evidence of facts sustaining the charge, it attempts to prove affirmatively another fact wholly inconsistent with it; and this defence is equally available, if satisfactorily established, to avoid the force of- positive as of circumstantial evidence. In the conflict of evidence, whatever tends to support the one tends in the same degree to rebut and overthrow the other, and it is for the jury to decide where the truth lies.’ The prisoner having undertaken to prove that he could not have been present when the murder was committed, or the means were used to effect it, your attention is directed to the time at which the witnesses for the defence testify they saw the prisoner, and to the particular circumstances they detail. Keeping in mind, then, the other proofs in the case showing the hour of the night when the murder took place, let us proceed to consider the evidence on which the defence relies to show the absence of the prisoner from the fatal spot.”
    After reading to the jury the evidence of Mr. and Mrs. Truax, the court said:—
    “Admitting the testimony of Chap. Truax and his wife to be true, and making allowance for any variation of time which the evidence would warrant, had the prisoner still the opportunity of making his preparations and being at Eldersville at midnight of Wednesday, the 4th of December? The proof is that he was at Eldersville from Friday until Tuesday morning before the murder, at the house of Ruth Howard. When he left or under what circumstances does not appear, nor is there anything in the testimony, so far as we recollect, to prove his first arrival at the station on Tuesday, the day before the murder. He was back in the neighborhood on that day and at the station, as well as on Wednesday. He accounts for his time on the afternoon of that day from three to four o’clock p. M. till nine o’clock at night, when he went to bed at Truax’s. From nine P. M. to one o’clock A. M. of Thursday, a period of about four hours, his time is not accounted for. Could he within this time have gone to Eldersville, committed the deed and returned to the Truax house? The distance by the road is about two miles and a quarter’; Mr. Gardner says two miles by the most direct route, pursuing that indicated by the tracks through the fields, coming out on the Steubenville road near the locust tree, and that the divergence to and from that tree would be about four rods.
    “ The concurring evidence is that the explosion took place about twelve o’clock. Mrs. Noah says the clock struck twelve just after she heard it, and immediately before she heard a person running down the Steubenville road, which would be in the direction of the station. This would make about an interval of three hours from the time the prisoner went to bed at Truax’s, and allow about an hour’s interval between the explosion and the time when Mrs. Truax awoke" and roused her husband for the purpose of putting coal on the fire. Would this afford a sufficient time for the prisoner’s return from Eldersville, supposing he were the person Mrs. Noah heard running down the road about the time the clock struck twelve ? It is for you to determine how far this evidence is in conflict with the other testimony in the case. Does it cover the time so as to preclude the possibility of the prisoner’s presence at the place of the murder ? The burden is on the prisoner to make it out to your satisfaction; but his failure so to do does not relieve the Commonwealth from the duty of proving that he was the perpetrator of the crime.”
    In concluding the charge the court Said:—
    “ You will consider all the circumstances proven to your satisfaction which point to the prisoner' as the guilty agent, and say whether they all concur to show that he committed the crime, and are inconsistent with any other rational conclusion.
    “ The prisoner’s guilt must be made out by evidence sufficiently conclusive to exclude any reasonable supposition of innocence. Upon the whole case, and every material part of it, you are to give him the benefit of any reasonable doubt, arising out of the evidence. If the evidence convinces your understanding and satisfies your reason and judgment, you can safely act upon it. A doubt such as the law recognises is not a mere speculation whether a matter established to your satisfaction may not be otherwise. It must fairly arise out of the evidence, and not be merely fancied or conjured up to escape the consequences of an unpleasant verdict. [It must be an honest doubt — such a difficulty as fairly strikes a conscientious mind and clouds the judgment. If the mind be fairly satisfied of a fact on the evidence, as much so as would induce a man of reasonable firmness and judgment to take the fact as true and act upon it in a matter of importance to himself, it would be sufficient to rest a verdict upon it.]
    “We have thus endeavored to explain to you the law and bring before you the evidence on both sides. If we have omitted anything material, you must ascribe it to inadvertence, and you will recall it in your searching examination of the whole case. Allowing the prisoner the benefit of the presumption of innocence and of every rational doubt, you will give the evidence your calm, deliberate and solemn consideration. If you should reach the conclusion that the prisoner caused the death of John Allingham, by the means and in the manner proven by the Commonwealth, he would be guilty of murder of the first degree; but, as we have explained, it devolves upon you, as a jury, in case of conviction, to ascertain in your verdict the degree of the crime. We now commit the case to your hands. Be governed entirely by the law and the evidence, and follow your own conscientious convictions. Let nothing turn you aside from yoto sworn duty to yourselves, the Commonwealth and the prisoner, and may an'infinitely-wise God preside over your deliberations and guide you to a just conclusion.”
    The jury retired at seven o’clock P. M. on Saturday, March 1st, the last day of the February Term; the court informing them that the court would meet at any time that night or on Sunday, to take their verdict, if they should have agreed ; the court then adjourned to meet upon the ringing of the court-house bell, at any time before twelve o’clock or on Sunday ; otherwise to meet on Monday at nine A. M. On Monday March 3d, the court met at nine o’clock A. M. The jury came into court and announced that they were unable to agree, and asked to be discharged. The request was declined by the court, the court was adjourned and met at ten A. M., when thejury again came in and asked further instruction, which being given, they retired. On March 4th the jury came in and rendered a verdict that the prisoner was “ Guilty of murder in the first degree.”
    A motion was made for a new trial which, after argument, was overruled and on the 4th of April 1873, the prisoner was sentenced to be hanged.
    The prisoner removed the record to the Supreme Court, and there assigned twenty-one errors.
    The second was the charge of the court on the question of alibi.

    The twenty-first was that the court erred in entering judgment on the verdict.

      Orumrine Patterson (with whom was G-. 0. Jones), for plaintiff in error. —
    The evidence referred to in the charge as designed to prove an alibi, was to prove such exculpatory circumstances as would, when weighed / with the circumstances against him, produce a reasonable doubt of his guilt. The court therefore erred in putting upon him the burden of establishing a specific defence. As long as the criminal agency is in doubt, the burden is on the Commonwealth: Commonwealth v. Drum, 8 P. F. Smith 9; Burrill on Circumstantial Evidence 49 and notes; 1 Bishop Crim. Procedure 534 and notes; Cathcart v. Commonwealth, 1 Wright 108.
    Under the 21st assignment, the counsel discussed the question of the power of the Court of Oyer and Terminer to adjourn beyond the term. Begular terms of Oyer and Terminer were unknown until. Act of April 14th 1834, sect. 58, Pamph. L. 532. Previously to that act they were held only by special precepts for that purpose, first from the judges of the Supreme Court under the Act of May 12th 1722, and afterwards by the judges of the Common Pleas, under the Constitution of 1790 and the Act of April 13th 1791. The power to hold adjourned Courts of Quarter Sessions cannot be drawn from the power to hold adjourned Courts of Common Pleas under the Act of 1806: Mills v. Commonwealth, 1 Harris 627. Adjourned sessions are not fixed by law but are called from time to time by the judges to meet emergencies. The terms are times fixed by law for holding courts: Horton v. Miller, 2 Wright 270; Kroemer v. Commonwealth, 3 Binney 577. The Acts of Assembly limit the terms in Washington county to two weeks. They referred at large to Act of April 14th 1834, supra.

      T. H. Baird, District Attorney, for the Comonwealth. —
    Evidence of alibi should be heard with great caution: Foster’s Crim. L. 368, and should be such as to cover the whole time .or as least so much as to render the commission of the act by the prisoner impossible : and if the time is not exactly fixed and the place not far off, it becomes one of probabilities: Wills on Circumstantial Ev. 16‘7, 139. The burden is on the prisoner: Commonwealth v. Fife, 5 Casey 429. On the 21st assignment he referred to and discussed the Act of 1834 and Williams v. Commonwealth, 5 Casey 102.
   The opinion of the court was delivered, January 5th 1874, by

Agnew, J. —

The only serious error alleged in this record is the continuation of the trial of the prisoner after the expiration of the regular term of the Court of Oyer and Terminer. The jury received their charge on Saturday, the last day of the term, and being unable to agree, did not deliver their verdict until the following Tuesday. It is argued, that, though the trial was continued without intermission from the 18th of February, and the testimony closed only Saturday the 1st of March, the end of the term should have ended the trial without a verdict. If this be so, an extraordinary casus omissus has existed from the foundation of the state, for doubtless many murder trials have outlasted the fixed terms of the courts, which in many counties have been for a single week. The argument rests on the want of an express statute to prolong the term, in such a case of necessity, and on the fact that such a provision exists in reference to the Quarter Sessions: Act 14th April 1834, § 49. But the organization and powers of these courts do not stand on a precisely similar footing; and the argument from analogy has no real bearing. The organization and powers of the Quarter Sessions were discussed by Justice Coulter in Mills v. Commonwealth, 1 Harris 627. I shall not refer to them myself. So far as that case is cited as authority for this, I need only say it has no relevancy, the trial there having been commenced as well as finished at an adjourned court, contrary to the terms of the Act of 14th April 1834, § 51, forbidding the transaction of business requiring the intervention of a grand or petit jury. This has been remedied by the Act of 22d April 1850.

Before the Act of 1834 the Oyer and Terminer was not held at fixed periods, but only when the business required, and the only authority for fixing the time was a precept under the hands and private seals of the judges. Emergencies may arise, says G. J. Tilghman, requiring such courts to be held on a sudden. These points are all determined in White v. The Commonwealth, 6 Binney 184-5, and were recognised by the Commissioners of Revision in their report upon the Act of 14th April 1834, 2 Park & Johns. Dig. 797. They therefore provided that the Courts of Oyer and Terminer should be held statedly at the several times appointed for holding the Courts of Quarter Sessions, although no special precept shall have been issued for that purpose: § 58. The power of the judges to issue special precepts for Courts of Oyer and Terminer, to be held from time to time, as emergencies might require, was ' continued, “ in the manner hitherto practised and allowed in this Commonwealth§ 59. This power enables the judges to hold jury trials at any time between terms, by precepts, as they were formerly accustomed to do. It is clearly a greater power than that of adjournment from day to day, which needs no precept to continue that which is already lawfully begun, and includes the inferior power to continue from day to day when required by the necessity of the case. Omne majus continet in se minus. This acquires greater 'force from the express power conferred on all the courts in the sixty-third section: “ In case of the non-attendance of a competent number of judges to hold any of the courts aforesaid, at the day and place appointed by law for holding the same, also in case of the subsequent interruption of any court by the sickness, death or absence of any of the said judges, orly any other cause, any judge shall have power to adjourn the court from day to day until a quorum be present, or otherwise, as he shall deem expedient.” If one judge has this power of continuance in a case of emergency, it is certainly quite as reasonable that all the judges should have power to continue from day to day when a case of necessity outlasts the term. These inferences arise naturally from the acknowledged powers of the judges of the Oyer and Terminer. The power to continue has the authority of analogous cases. Thus in Williams v. Commonwealth, 5 Casey 102, where a prisoner was tried at the stated term, it was held that he was lawfully sentenced to death at an adjourned court. In that case the adjournment w(as on the simple order of adjournment and not by precept. In effect the order of adjournment in open court is a precept; and this case is stronger, for here the adjournment was from one day to the next; while there the adjournment was over to a distant day; and the power to continue in trial is more warranted than to adjourn to%a distant day to sentence. Necessity also is a just ground of continuance : Clark v. Commonwealth, 5 Casey 129; McCreary v. Commonwealth, Id. 323. In the latter case it was said the constitutional provision that no one shall be put twice in jeopardy “is not so inexorable as to shut out a practical construction demanded by necessity and the safety of the community.” In Commonwealth v. Jailer of Allegheny County, 7 Watts 366, it was also said that there is no doubt that necessity, either moral or physical, may raise an available exception to the letter of the Habeas Corpus Act; and see Commonwealth v. Sheriff, 16 S. & R. 304, and Ex parte Walton, 2 Whart. 501. The decision in the Election Cases, 15 P. F. Smith 34, is also in point. There by the act the contest is to be determined at the next term; but it was held that the expiration of the term while the case was in progress did not strike down the jurisdiction of the court.

We are of opinion, therefore, that the jurisdiction of the Court of Oyer and Terminer in the case before us did not end with the term, but continued by the adjournment from day to day until the trial closed and the verdict was delivered, and, if necessary, sentence passed.

Complaint is made of that portion of the charge relating to the defence of alibi, but without just ground. When a defence rests on proof of an alibi, it must cover the time when the offence is shown to have been committed, so as to preclude the possibility of the prisoner’s presence at the place of the murder. Although the prisoner makes no admission of guilt by setting up an alibi, yet clearly the value of the defence consists in its showing that he was absent from the place where the deed was done, at the very time the evidence of the Commonwealth tends to fix its commission upon him; for if it be possible that he could have been at both places, the proof of the alibi is valueless. The court treated the evidence of the prisoner’s being in bed at Truax’s as an alibi defence, which in truth it was; and in this view the portion of the charge complained of was correct. It is argued now that, though the prisoner’s evidence of an alibi was not conclusive as to time, yet it tended to raise a doubt of his presence at the house of John Allingbam. But the court said nothing to the contrary; and when charging- on the alibi as a defence, said expressly that the prisoner’s failure to prove it did not relieve the Commonwealth from the duty of proving that he was the perpetrator of the crime. At the close of the charge, when speaking of the doubt which should avail the prisoner, the judge said: “ The prisoner’s guilt must be made out by evidence sufficiently conclusive to exclude any reasonable supposition of innocence. Upon the whole ease and every material part of it, you are to give him the benefit of any reasonable doubt arising out of the evidence.” And again: “Allowing the prisoner the benefit o$ the presumption of innocence and of every rational doubt, you will give the evidence your calm, deliberate and solemn consideration.” These were nearly the closing words -of the charge, leaving the last and most vivid impression upon the minds of the jurors. The excellent judge who presided at the trial did the prisoner full justice.

The remaining assignments need no notice, not possessing sufficient merit to reverse the judgment.

The sentence of the Court of Oyer and Terminer is therefore affirmed, and the record ordered to be remitted to the court below for execution according to law.