author: Mr. Justice Mercur

text:
    Stephens, et al., Administrators, versus Cotterell.
    1. In an action by an administrator to recover the price of goods belonging to his intestate which he in his official capacity has sold, the defendant cannot set off a debt due him by the intestate.
    2. In an action by an administrator the plaintiff is competent to give evidence as to facts existing and acts occurring subsequent to the death of his intestate, even though the evidence may in its effect tend to prove that the same facts existed prior to the death of such intestate.
    3. A. died intestate owning a number of mules. Letters of administration were granted upon his estate ; the mules were included in the inventory and appraisement, and were afterwards sold at public sale by the administrators. In an action by said administrators against B., the purchaser of the mules at said sale, for the price bid by him, B. defended on the ground that he held a note of A. exceeding in amount the price so bid by him, that he had agreed with A. in his lifetime that the mules in question should be put into the possession of the persons who were after-wards A.’s administrators with instructions to sell them and apply the price on account of said note; that in pursuance of said agreement the mules were put into the possession of those persons prior to A’s death and so continued; that they remained unsold until after letters of administration were granted on A.’s estate; that when B. purchased them at the sale he did so under the belief that he was buying under the agreement made with A.; and finally that after the sale the administrators agreed that the sum bid by B. should be credited and indorsed on the note. Plaintiffs, in order to contradict this evidence, offered to show that they did not take possession of the mules until about the time of the appraisement. Held, that this evidence was competent and relevant, and should have been admitted.
    4. In the above case, nothing less than clear and specific evidence was admissible on the part of the defendant in support of his contention.
    5. Administrators have not the power, in distributing the estate of their intestate, to give one creditor priority over another.
    6. In the case above mentioned, it was held error to submit to the jury the question as to what the defendant’s belief was at the time of sale as to the terms thereof, there being no reason shown for such belief other than that the mules were unsold at the time of A.’s death, and the question of the plaintiff’s belief at the time of the sale being wholly irrelevant.
    7. A widow may testify as against the interest of the estate of her deceased husband in relation to facts which came to her knowledge otherwise than through the confidential relations existing between them.
    November lYth 1881.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Greene county: October and November Term, 1881, No. 112.
    Assumpsit, byAzariah Stephens and Barzilla Stephens, administrators of Israel Stephens, deceased, to recover the price bid by the defendant, at a sale by the plaintiffs for certain horses and mules belonging to the estate of the plaintiff’s intestate. The defendant obtained possession of the horses, &c., and refused to pay for them.
    On the trial, before Willson, P. J., the defendant gave evidence, under objection and exception, that Israel Stephens, in his lifetime, being indebted to the defendant, agreed that the said horses and mules should be taken possession of and sold by bis brothers, Azariah and Barzilla Stephens, the plaintiffs in this case, for the purpose of paying said indebtedness; that plaintiffs did take possession, but that before a sale could be had, Israel Stephens died and letters of administration on his estate were granted to the plaintiffs; and that defendant bought the property at the sale, under an arrangement with the plaintiffs, that the price was to be applied to said indebtedness.
    The plaintiffs denied that they took possession of the property during the lifetime of Israel Stephens, and that any such arrangement existed at the sale; further, that as the estate of Israel Stephens was insolvent they had no power to make any such arrangement.

      It appeared that shortly after Israel Stephens’ death, Azariah Stephens, one of tlio administrators, wrote to the defendant the following letter:
    “ Gabard’s Fobt, August 4th, 1874.
    “John Cotterell. — Dear Sir: If you want two horse mules, and will give three hundred dollars for them, you may have it on your note, and they must be cried off at the sale, if anybody gives more than you will give, let them go, and we will give you the three hundred dollars on the note, and we will take them back sale. Come and see me at the sale before they are sold. “ Yours,
    “ Azariah Stephens.”
    The admission of this letter was objected to on tbe ground that it does not amount to such an arrangement as is alleged by the defendant, and if it does, it was an excess of power and a nullity. Objection overruled; exception.
    Barzilla Stephens, being called as a witness, the plaintiffs offered to prove by him that he took possession of the property on or about the date of the appraisement, and had no custody or control of the property before that. Defendants object to tbe evidence offered, upon tbe ground that it tends to prove a fact occurring prior to the death of Israel Stephens ; and, second, because, so far as it tends merely to prove that they got possession after the death of Israel Stephens, it is irrelevant, that fact not being material. Plaintiffs offer to prove by this witness where lie found the property after letters of administration had been granted to. him and Azariah Stephens, and in whose possession it was. This for the purpose of showing that the property was not in his custody or control prior to the death of Israel Stephens. Defendant objects to the evidence offered, on the ground that the tendency and object of the evidence is to prove a fact occurring before the death of Mr. Stephens, and that, so far as it tends to prove possession, after the death of Israel Stephens, it is irrelevant. Objection sustained; exception. (Third assignment of error.)
    The defendant having called Mrs. Stephens, widow of Israel Stephens, the plaintiffs objected to her as incompetent to testify against the interest of her deceased husband’s estate. Objection overruled ; exception.
    The defendant requested the court to charge (3) that if the jury found that the arrangement between Israel Stephens and the defendant existed, as alleged by defendant, and “ that the defendant, at the vendue, purchased the horse, mules and heifer, believing, from what he had heard from the administrators, that he was purchasing in pursuance of said agreement, that the property so purchased was delivered to him by the said Barzilla and Azariah, and that with their acquiescence he entered a credit on the note for the amount of his bid, they cannot recover.” Affirmed. (Seventh assignment of error.)
    Yerdict and judgment for the defendant. The plaintiffs took this writ of error, assigning for error, inter alia, the admission of any evidence on the part of the defendant in support of his alleged arrangement with Israel Stephens in his lifetime ; the admission of Mrs. Stephens, widow of Israel Stephens, as a witness on behalf of the defendant; the admission of the letter of Azariah Stephens; the rejection of the plaintiff’s offers of testimony as above stated; and the affirmance of the defendant’s third point.

      Purman (Borb with him), for the plaintiffs in error. —
    The alleged arrangement between the defendant and Israel Stephens was executory only, and, not having been consummated during Israel Stephen’s lifetime, expired. The administrators were trustees and this property was trust property. The defendant’s alleged contract with the decedent is no answer to the plaintiff’s demand that the defendant shall comply with the new contract made by him with them. All evidence relating to the alleged contract with the decedent was, therefore, irrelevant and should have been excluded: McCandless’s Estate, 11 P. F. Smith 12.

      Buchanan ( Wyly and Walton with him), for the defendant in error.
   Mr. Justice Mercur

delivered tbe opinion of the court, January 3d 1882.

Tins suit was to recover the sum bid by tbe defendant on his purchase of personal property at a sale made by the plaintiffs as administrators of Israel Stephens. The defendant held a note against the decedent, and claims to have paid his bid by indorsing the amount thereof on the note.

It is settled law that in a,n action by an administrator to recover a debt for goods of the intestate, which he as administrator sold to the defendant, the latter cannot set off a debt duo from the intestate to him. After the administrator has reduced the goods to his possession and sold them, he may sue for such debt in his own right. It is for the enforcement of a contract made with him. Naming himself as administrator is surplus-sage. Wolfersberger et al. v. Bucher, 10 S. & R. 10; Beale et al. v. Coon, 2 Watts 183; Steel v. Steel, 2 Jones 64.

To avoid the application of this rule of law and to strengthen his position, the defendant gave evidence that there was an agreement between him and Israel Stephens, by which the property, afterwards bought by him, should be put into the possession of Barzilla Stephens and Azariah Stephens with instructions to sell it, and apply the proceeds thereof on said note ; that in pursuance of the agreement the property was put into their possession and so continued; that it remained unsold until after letters of administration on the estate of Israel issued to them ; that he purchased at the administrator's sale with the belief that he was buying under the agreement made with Israel; and that, after his purchase, the administrators consented that the sum bid, be indorsed on the note. The plaintiff's strenuously denied having taken any possession of the property, in the life of Israel, or that they consented to an indorsement on the note of the sum bid.

The facts are unquestioned that the estate of Israel Stephens is insolvent, and that the property in question was duly inventoried and appraised as the property of the estate after the plaintiffs were appointed administrators thereof.

In the rejected evidence covered by the third assignment there wras an offer to prove by Barzilla Stephens, one of the plaintiffs, substantially that he first took possession of the property on or about the time of the appraisement, and also, where the property was found after letters of administration were granted to the plaintiffs. The defendant objected thereto, first, as it tended to prove a fact prior to the death of Israel, and second, that where they found it, when they took possession after his death "was irrelevant. The objections were sustained. In this we think there was error. It is not concealed that one purpose of this evidence was to create a presumption that the present plaintiffs had not taken possession of the property before the death of Israel. Nevertheless the offer was to prove facts existing and acts occurring after his death. Although the evidence may, in its effect, tend to prove the same fact existed prior to his death that is no cause for its exclusion : Rothrock v. Gallaher, 10 Norris 108. It was entirely competent to prove, as bearing on both positions contended for by the defendant, where the property was found, and in whose possession, at the time the administrators, as such, took possession thereof.

As no sale of the property was made during the life of Israel, and it was inventoried, appraised, and sold, after his death, as the property of his estate, nothing less than clear and. specific evidence should be permitted to divert the money for which it sold, from a distribution among all the creditors. Having been sold as the property of the estate, it is the interest or property of the estate only, which is presumed to have passed by the sale, and for this alone, the defendant bid. There is no evidence of any notice given at the sale, that the exclusive and unquestioned right of property was not in Israel at the time of his death. The plaintiffs, as administrators, held all the personal estate of the decedent, in trust for his creditors. Acting as such they sold the property. They had no power to prefer a creditor whom the law did not prefer. They could not by agreement change the due course of distribution to the prejudice of any of the creditors. It was held in Fritz v. Thomas, 1 Wh. 66, that an administrator sued in his representative character for a debt due by the decedent, may plead the statute of limitations as a. bar to the action, although such administrator may have made such an acknowledgment of the debt as in the case of a person sued for his own debt, would be sufficient to take the case out of the statute. The administrator cannot be compelled to adhere to an agreement made by him with one creditor in fraud of other creditors : Steel v. Steel, supra.

In affirming the point covered by the seventh assignment undue weight was given to the belief of the defendant, if when he bought at the vendue, he believed from what he had heard from the administrators that he was purchasing in pursuance of said agreement ” made with Israel. Whether the administrators or any other person so believed or understood at the time of the sale is wholly ignored in the point. Nor is any fact stated therein showing why he then believed it, other than that the property was unsold at the time of Israel’s death.

The mere fact that Mrs. Stephens was called to testify against the interest of the estate of her deceased husband, did not make her incompetent. She is competent to testify to facts which came to her knowledge otherwise than through the confidential relations existing between her and her husband. Such were the facts here, and she was therefore competent. "We discover no error in the second and fourth specifications. In so far as the others are in conflict with this opinion they are sustained.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Wise’s Appeal.
    Proceedings in bankruptcy wore instituted against A. under the provisions of the United States Bankrupt Act, and were so proceeded in that a discharge was eventually granted to the bankrupt. Pending those proceedings a judgment was enlered against A. by virtue of a warrant of attorney accompanying a judgment note given by him before the institution of the proceedings in bankruptcy. A. had no knowledge of the entry of this judgment until the service upon him, long subsequent to his discharge, of a scire facias to revive the same. He thereupon at once made application to have said judgment opened and to be let into a defence. Held, that the judgment ought to be opened so that a trial might be had upon the merits, and that the defendant might plead his discharge in bar.
    November 17th 1881.
    Before Sharswood, C. J., Meecur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas, of Greene eenmty: Of October and November Term 1881, No. 317.
    Tills was an appeal by Morgan R. Wise from a decree of the said court, discharging a rule to show cause why a certain judgment should not be opened and the said Wise be let into a defence.
    The facts, as set forth in the petition of W ise for the rule to show cause, and which were undisputed, wore these: On October 27th 1875 Peter Brown and Morgan R. Wise gave to Flenniken & Co. their judgment note for $1,000, for borrowed money, payable three months after date, with warrant of attorney to confess judgment. Judgment was entered by virtue of said warrant of attorney against Peter Brown and Morgan R. Wise, January 21st 1876. A scire facias post annum et diem to revive the lien of the judgment was issued January 14th 1881, and duly served on the defendants. The defendant, Morgan R. Wise, thereupon presented his petition, setting forth that on December 21st 1875 (after the date of said note but before the entry of judgment thereon), he was adjudicated an involuntary bankrupt by the U. S. District Court, and was discharged July 17th 1879; that the said note was a debt provable in banlmiptcy; and that he bad no knowledge or notice of the entry of said judgment on the note by virtue of the warrant of attorney, until the service upon him of the scire facias to revive, etc.
    The court granted a rule to show cause why the said original judgment should not be opened as to the defendant Wise, and he be let into a defence; subsequently, after argument, the court entered a decree, discharging the said rule, from which decree the said Morgan E. Wise took this appeal.

      Downey (Garrison, with him), for the appellant. —
    The bankruptcy of Wise before entry oi judgment on the note was an undoubted defence to a suit on the note, it l^eing a debt provable in bankruptcy. The judgment having been entered upon warrant of attorney after the adjudication in bankruptcy, the court should have opened it to permit the bankrupt to plead such defence: Commonwealth v. Huber, 3 Clark 332; Savings Bank v. Webster, 48 N. H. 21; Lee v. Phillips, 6 Hill 246.
    This defence cannot be made in the scire facias to revive the judgment, for in such action, the defendant is confined to matters arising subsequently to the judgment; the original validity cannot be impeached: Hopkins v. West, 2 Norris 109 ; Cordesa v. Hume, 6 S. & E. 55; Lysle v. Williams, 15 S. & E. 135 ; Dowling 'o. McGregor, 10 Norris 410; Bradford v. Eice, 102 Mass. 472; Thompson v. Hewitt, 6 Hill 255.

      O. A. Blade, for the appellee,
    presented no paper book. He argued that the refusal of the court below to open the judgment was a matter resting within the sound discretion of the court, the exercise of which will not be reversed: Wernet’s Appeal, 8 W. N. C. 39; Earley’s Appeal, 9 Norris 321; Hickernell’s Appeal, Ibid. 328.
   Mr. Justice Trunkey

delivered the opinion of the court, November 25th 1881.

No creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law, or in equity therefor against the bankrupt, until the question of the debtor’s discharge shall have been determined; and such suit shall be stayed upon application of the bankrupt to await the determination of the court in bankruptcy on the question of discharge, but if the amount be in dispute, by leave of said court, the suit may proceed to judgment for the purpose of ascertaining the amount due, and execution shall be stayed: E. S. U. S. § 5106. A discharge in bankruptcy, subject to certain exceptions named in the statute, shall release the bankrupt from all debts, claims, liabilities and demands which were, or might have been proved against his estate in bankruptcy: Id. § 5119.

In an action upon a judgment which was obtained against a defendant, after he was adjudicated a bankrupt, and before his discharge, upon a debt provable under the bankrupt laws, the original debt is merged, and the certificate of discharge granted subsequently is no defence: Bradford v. Rice, 102 Mass. 472. The original debt is merged in and extinguished by the judgment, and the judgment is a new debt which is not affected by the discharge: Thompson v. Hewitt, 6 Hill 255. In New York the practice has been to permit one cast in judgment to avail himself of a bankrupt or insolvent discharge by motion and order for a perpetual stay of execution thereon. This is allowed in eases where he had no opportunity to plead his discharge. If fraud be alleged, as ground for impeaching the discharge, the court would open the case so that that question could be tried. Where a trial had determined the amount due before the petition was filed and the defendant adjudicated a bankrupt, and the judgment entered after the commencement of proceedings in bankruptcy, it was held that a stay of proceedings would not have availed to enable the defendant to plead his discharge, and that he was entitled to an order for perpetual stay of execution : Monroe v. Upton, 50 N. Y. 593.

In a procedure in bankruptcy, on July 17th 1879, Wise was discharged of and from all debts and claims provable under the bankrupt laws of the Hnited States, and which existed on December 31st 1875, on whicli day the petition for adjudication was filed by his creditors, excepting such debts, if any, as are by said laws excepted from the operation of a discharge in bankruptcy. On January 21st 1876, judgment was entered, by confession, against Wise and Brown, on a note dated October 27th, 1875, by virtue of a warrant of attorney embodied in said note. The first knowledge Wise had of the entry of this judgment was when the writ of scire facias for its revival was served on him January 17th 1881, and he applied for the rule to open the judgment at the term to which said writ was returnable.

Judgments confessed by virtue of wai’rants of attorney, whether entered in term or vacation, are without the actual knowledge of the court, and without notice to the defendant. While such a judgment stands, there is no difference, in legal effect, between it and a judgment on the verdict of a jury ; but the court in which the judgment is confessed will open it and let the defendant into a defence upon his showing cause : Hopkins v. West, 2 Nor. 109. In the trial of a scire facias oil a judgment no inquiry into the merits of the original judgment can be had, and the only defence is some matter arising since the judgment: Dowling v. McGregor, 10 Nor. 410. The original judgment is as conclusive in a scire facias to revive, as in an action of debt upon it. In Pennsylvania it is the right of a defendant in a judgment confessed against Mm by virtue of a warrant of attorney, to have it opened when he promptly applies and shows a legal or equitable defence which existed at and before the time it was entered. ITe need not resoi’t to a court of equity for an injunction against its collection. The appeal to open the judgment is to the equitable powers of the court, and the court, in the exercise of a sound discretion, grants or refuses the prayer as a chancellor would : Kneedler’s Appeal, 11 Nor. 428.

This judgment ought to be opened, that a trial may be had upon the merits. It was entered after the commencement of proceedings in bankruptcy against Wise, and before he obtained his discharge. He had no opportunity to ask stay of proceedings until the question of his discharge should be determined. He applied for relief directly after he received notice or knowledge of the judgment, and laches cannot be justly imputed to him. He cannot plead the discharge in bar to the scire facias, but may to the original debt, if the judgment be opened.

The order and decree is reversed, and the rule to show cause why the judgment, as against Morgan R. Wise, should not be opened, is made absolute; the record to be remitted for further proceedings. Appellees to pay costs of appeal.


author: Chief Justice Sharswood

text:
    Hannah Allen’s Appeal.
    1. The mere fact that a woman has committed fornication before marriage and fails to tell her intended husband of it does not constitute such a fraud upon him in procuring the marriage as to entitle him to a divorce under the provisions of the Act of May 8th 1854, Pamph. L. 644.
    2. Where, however, she is actually pregnant in consequence of such fornication at the time of the marriage, and is afterwards delivered of a child, and has failed to inform her intended husband of such pregnancy, it is for the jury, under the instructions of the court, to say whether this constitutes such a fraud in procuring the marriage as to entitle the husband to a divorce.
    3. Whether or not a person shall be permitted to testify as an expert is very much in the sound discretion of the court. The Supreme Court will never reverse for the admission of such testimony unless the discretion has been grossly abused.
    4. A woman who had borne four children was called as an expert, and permitted to testify that in her opinion a certain child was fully developed at its birth. Held, that the court would not reverse for the admission of this testimony.

      November 17th 1881.
    Before Sharswood, O. J., Mekour, Gordon, Paxson, Tkunkey, Sterkett and Green, JJ.
    Appeal from the Court of Common Pleas of Fayette county: Of October and November Term 1881, No. 313.
    Libel for divorce a vinculo matrimonii, by William Allen, against Hannah Allen, formerly Hannab Duvall, averring as follows: —
    “ That on the 25th day of July 1878 an alleged marriage was celebrated between your petitioner and Hannah Duvall; that said marriage wras procured by fraud on the part of the said Hannah, in this, that prior to the said marriage and to the time the same was celebrated the said Hannah represented and presented herself to your petitioner as a chaste and virtuous female, and your petitioner, relying upon and giving full faith to said representation and pretensions, and not suspecting anything to the contrary, entered into a marriage contract with the said Hannah on or about the 28th day of April 1878, which was consummated as aforesaid on the 25th day of July 1878. Your petitioner further represents that still believing in the virtue and chastity of the said Hannah, he lived and cohabited with her as his wife until the 10th day of February 1879, when she gave birth to a fully matured and developed female child. Your petitioner further represents that he never had sexual intercourse with the said Hannah prior to the 25th day of July 1878, and is not the father of the child born on the 10th day of February 1879. Your petitioner further alleges that he has cause to believe, and does believe, from facts only known to him since the birth of the child, and expects to bo able to prove, that the said Hannah had committed fornication with a certain Samuel Williams, and others to your petitioner unknown, prior to her marriage, and was at the time of the marriage aforesaid, pregnant with the child born on the 10th day of February 1879, a fact not known to your petitioner at the time of this marriage, and that said marriage has not been confirmed by your petitioner in any way since the birth of said child and the discovery of the fraud practiced upon him. Wherefore,” &c.
    The respondent in her answer denied that the marriage was procured by fraud on her part, and averred that the libellant wras the father of the child; that she had not had sexual intercourse prior to said marriage with any man other than the libellant; and that she at no time, prior to the said marriage made any false representations to the libellant in regard to her chastity and virtue.
    A replication having been filed, the issue was tried before Willson, P. J., and a jury. The evidence was to the following effect: — Upon the birth of the child, less than seven months after marriage, the libellant ceased to cohabit or live in the marriage relation with respondent. Two physicians and a Mrs. Johnston, the mother of four children, testified that the child was at birth fully developed. Mrs. Johnston’s testimony was objected to, on the ground that she was not an expert and had no technical knowledge on the subject except what would be possessed by any woman of similar experience. Objection overruled; exception. About ten days after the marriage, the respondent admitted to the libellant that one Samuel Williams was the father of the child, and she then also made information before a justice of the peace to the same effect. The respondent testified, however, that she made such information, not voluntarily, but induced thereto, because the libellant promised, if she would do so, he would live with her again, and that the confession was not true in fact. The libellant denied that he so promised. There was some conflicting evidence, that about the time the child was probably begotten, the respondent was in company with said Williams late at night, which was claimed to be corroborative of respondent’s confession. The respondent testified that the libellant had sexual intercourse with her prior to the marriage, in May 1878. This the libellant denied. He swore that he had no knowledge or suspicion at the time of the marriage that any person had had intercourse with her, or that she was pregnant. There was no evidence of any affirmative misrepresentations by the respondent, prior to the marriage, in relation to her chastity, other that the inference to be drawn from her conduct.
    In March 1879 William Allen filed a libel in divorce, and on June 2d following he discontinued the case, because, as ho testified, his counsel told him it would cost about $5,000, and he could not pay the expenses. The following day, June 3d, acting under advise of counsel, he went to respondent and asked her to come home with him. She replied: “Not to-day.” He then published in the newspapers a notice of desertion, in the usual form, warning all persons not to trust her on his account. Subsequently, on July 29th 1879, he filed the present libel in divorce.
    The respondent presented the following points :—
    1. The court is requested to instruct the jury that to enable them to find for the libellant they must be satisfied from the evidence adduced on the trial that the marriage was procured by fraud practiced or perpetrated upon the libellant by the respondent. Answer. Affirmed.
    2. That the word “ procured ” used in the Act implies that there must have been some active measure or measures, words or representations employed by the respondent to induce the libellant to enter into the marriage contract with her. Answer. Affirmed.

      8. That inasmuch as the libellant charges in his libel that the respondent “ represented and presented herself to him as a chaste and virtuous female,” whereby “ he entered into a marriage contract with her,” he must satisfy the jury by evidence that she did so represent and present herself to him, else the verdict cannot be for the libellant. Answer. Affirmed.
    4. If the jury believe that the marriage of the libellant and the respondent was contracted by the parties without anything having been said between them as to her previously having had carnal connection with other men, the verdict must be for the defendant. Answer. Refused.
    The court submitted the evidence to the jury, in a lengthy charge containing full instructions as to the law applicable to the case.
    Verdict for the libellant, and judgment thereon. The respondent took this appeal, assigning for error the admission of Airs. J olmston to testify as to the development of the child at birth ; the refusal of respondent’s fourth point; and, generally, that “ the charge of the court below is in direct contradiction of the first three points presented by the respondent and affirmed by the court; the said charge misled and confused the jury and distracted attention from the real points at issue.”

      T. B. Seabright and Edward Campbell, for the appellant,
    cited: Bishop on Alarriage and Divorce, §§ 167, 168, 180, 190; Crehore v. Crehore, 97 Mass. 330; Foss v. Foss, 12 Allen, 26 ; Baker v. Baker, 13 Cal. 87; Benton v. Benton, 1 Day 111; Winter v. Winter, 7 Piula. 8G9; Stevenson v. Stevenson, Ibid. 8S6 ; Matchin v. Matchin, 6 Barr 332.

      Bogle & Mestrezat and IF. IT. Playford, for the appellee.
    If any mistake was made by the court below, it was in affirming the respondent’s second point: Donovan v. Donovan, 9 Allen 140.
   Chief Justice Sharswood

delivered the opinion of the court, January 2d 1882.

By the first section of the Act of Afay 8th 1854, Pamph. L. 614, it is provided that “ it shall be lawful for the courts of common pleas of this Commonwealth to grant divorce where the alleged marriage was procured by fraud, force or coercion.” By this language must of course be understood such fraud as would at common law render a marriage void. It is settled beyond all controversy, that fraud which, would vitiate any other contract — even an executory contract to marry — will not have that effect when the marriage has actually been solemnized and consummated. “ It is well understood,” says Chancellor Kent, “ that error and even disingenuous representation, in respect to the qualities of one of the contracting parties in his condition, rank, fortune, manners and character, would be insufficient. The law makes no provision for the relief of a blind credulity, however it may have been produced:” 2 Kent’s Comm. 77. It assumes that the party in entering into so solemn a contract — involving the most important duties and responsibilities for life, and upon which his happiness so much depends — has made all proper inquiries or is willing to take the other party upon trust without inquiry. According to the form of the marriage service of the Church of England, each party takes the other “ for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish till death them do part according to Cod’s holy ordinance.” The fraud must be in what has been sometimes termed the essentialia of the contract. False personation by one of another person would undoubtedly be such a case. As to any other it will be found difficult, after looking through all the authorities, to lay down any rule which can sharply define and distinguish what are and what are not essentials. Every case must, to some extent, depend on its own circumstances. Thus it is well settled that want of chastity on the part of the woman — ante-nuptial incontinence — even though she may have expressly represented herself as virtuous — forms no ground for avoiding the contract. Mr. Bishop, who has studied the subject with great care and research, in his valuable treatise on Marriage and Divorce, § 179, considers, that on well-established principles, if the woman has even been a common prostitute, and has reformed her life, yet conceals her former misconduct, the man-iage would still be good. The marriage contract is an express renunciation by her of all unlawful intercourse with others than her husband; and he makes a similar renunciation. According to the marriage service before referred to, they both solemnly promise, “ forsaking all others,” to keep themselves solely to each other. I consider this marriage service as good evidence of the ancient common law of England. This seems to be also the dictate of humanity and in conformity to the gospel which so strongly throughout inculcates the rule of mutual forgiveness. For otherwise, one of strong passions, led astray by them or seduced by the wicked arts of others, could have no hopes from reform. In such cases it is best for society that the past should be entirely buried in oblivion, and that the poor, erring creature should have the chance of a new life of respectability and honor. It is best that the other party should know, when the sin is afterward revealed to him, that it can do no good, but unmixed evil, to make it public by applying for a divorce. They must learn to submit to the inevitable. In tliis country — certainly in this state — -adultery is a ground for divorce a vinculo matritnonnii; so that if there should be a relapse after marriage, the marriage can be annulled. The only practical result, therefore, of declaring the marriage absolutely void, ab initio, for simple ante-nuptial incontinence — ■ whether in one instance or many — would be to render innocent children ■illegitimate. And if anto-mrptial incontinence be a sufficient ground of nullity as against the woman, it is not easy to see why it should not be so likewise against the man, and the consequences of such a doctrine it is not difficult to predict.

Actual pregnancy at the time of the marriage presents an entirely different question. It introduces a different element. The marriage status of the parties is changed. The man is then necessarily put to the alternative of either publishing his wife’s shame or submitting to have the child of a stranger, an alien to his blood, introduced, recognized and educated as his own legitimate offspring. If a man, indeed, mandes a woman knowing her to be pregnant, even though he may believe that he is the father, he cannot set up the fraud, if afterwards discovered ; for no man would do such a thing unless conscious of having had bimself previous connection with her ; and though she may have falsely assured him that the child was his, if he chooses to rely on that assurance he must bear it as a misfortune. In one very strong case, where, the parties being white, the child born after the marriage proved to bo a mulatto, yet the woman simply concealed from the man the fact of having received a negro’s embraces about the time she did his, the marriage was adjudged valid : Scroggins v. Scroggins, 3 Dev. 535. In support of these general views it will be sufficient to refer besides to Reynolds v. Reynolds, 3 Allen 605; Leavitt v. Leavitt, 13 Mich. 452; Hedden v. Hedden, 6 C. E. Green 61; Faw v. Faw, 2 McArth. 35; Foss v. Foss, 12 Allen 26; Crehore v. Crehore, 97 Mass. 330: Baker v. Baker, 13 Cal. 87; and our own case of Hoffman v. Hoffman, 6 Casey 417. “ There is no absolute rule,” says Mr. Bishop, § 180, “that; pregnancy will entitle him (the lmsband) on discovering the fact to have the marriage declared void. In some circumstances it will, in others it will not; depending on the extent and nature of the fraud in the particular instance, as appearing in the facts special to the individual case.”

Applying these principles to the facts of this case, we think that under the evidence it was submitted to the jury with proper instructions. There was no sufficient evidence that the libellant bad ever had sexual intercourse with the respondent before marriage. He positively denied it. The respondent indeed swore that it was his child. She admitted that she had said that it was the child of Samuel Williams, but that it was at Alleifs request upon a promise tliat if she would, lie would live with her. This again lie utterly denied. It was a strange story, but the jury were the judges of the credibility of the witnesses. The child ivas born about seven months after the marriage, so that there could have been nothing in her appearance at that time to indicate her condition. It was certainly not necessary that she should have expressly denied her pregnancy before the marriage. No man would think of asking such a question of a woman he was about to make liis wife. Jt would be regarded by her as an insult, if she was, as lie then must have supposed, a virtuous woman. Upon the question of whether Mrs. Johnston was an expert, it was very, much in the sound discretion of the court, and we never reverse in such cases unless the discretion has been grossly abused, which it certainly was not in this instance.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Mr. Justice Sterbett

text:
    Miller versus Pollock et al.
    1. Where negotiable notes are indorsed over ns collateral security for other notes then and there discounted by the indorsee for the indorser on the faith and credit of the notes indorsed as collateral, the indorsee of said notes is to be regarded as a purchaser for value. Hence no prior indorser can set up as against such indorsee the fact that he is an accommodation indorser only.
    2. In a suit by such indorsee, against such prior indorser, no evidence is admissible on behalf of the defendant which does not prove or go to-prove actual payment of the notes to the indorsee.
    O. Where a suit is instituted by one person to the use of another, and subsequently on the trial it appears that the use plaintiff is both the legal and equitable owner of the security sued upon, it is competent for the court to allow the record to be amended so as to correspond to the facts of the case. •
    November 17th, 1881.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Butler county: Of October and November Term, 1881, No. 304. •
    Assumpsit, by the Kittanning Insurance Company, for use of William Pollock and James Musgrave, administrators of James E. Brown, deceased, against Adam Miller, upon two promissory notes, drawn by Frederic Miller to the order of defendant, and by him indorsed. Subsequently, on the trial of tlio cause, it appearing that Pollock and Musgrave, administrators, were both the legal and equitable owners of the notes, the record was, by leave of court, and under objection of defendant, so amended as to insert their names as sole plaintiffs. (First and second assignments of error.)
    On the trial the following facts appeared: On March 7th 1877, Frederic Miller, having purchased of Samuel W. G. Brown the interest of said Brown in the firm of Brown & Ivory, gave him, in payment therefor, the notes in suit, indorsed by defendant. On March 19th 1877, before said notes had reached maturity, they were indorsed over by Samuel G. W. Brown to James E. Brown, as collateral security for certain other notes that day given by said Samuel G. W. Brown to said J ames E. Brown. These last-mentioned notes were, on maturity, taken up by and merged in notes for larger amounts, with which new collateral was given. These renewal notes were never paid. James E. Brown having afterwards died, the plaintiffs, his administrators, presented the notes in suit at maturity to the maker. Payment thereof being refused, the present suit was then instituted.
    Defendant offered to prove that he was a mere accommodation indorser; that Frederic Miller, the maker of the notes in suit, had, after the date thereof, sold out all his interest in the firm of Brown & Ivory to Ivory, the said Ivory agreeing to assume all debts of the said firm; that said Ivory afterwards sold all the property of said firm, and purchased with the proceeds thereof a certain leasehold estate in an oil well, and had given a mortgage on said leasehold to Samuel W. G. Brown in full payment and satisfaction of the notes in suit, which mortgage said Samuel W. G. Brown afterwards assigned to James E. Brown, plaintiff’s decedent, said James E. Brown being notified that the mortgage was given in payment of the notes. Offer objected to by plaintiffs as irrelevant. Objection sustained; evidence excluded. (Fifth assignment of error.)
    Defendant requested the court to charge as follows :
    “ 1. The plaintiffs having shown and admitted that the notes in suit were held as collateral security merely, and were not transferred as payment, the plaintiff is not a bona fide holder, and the notes are subject to the equities existing between the original parties. Answer. We refuse this, there being no evidence that the notes taken were held as collateral security for an antecedent debt, but for money advanced on the day that the collateral security was taken on another note. (Third assignment of error.)

      “ 2. It having been shown by the plaintiffs that the notes of Samuel G. W. Brown, for which the notes in suit were transferred as collateral security, were paid by the substitution of new notes, with other collaterals ; that it relieved Adam Miller, who was but an accommodation indorser or surety, and that the plaintiffs cannot recover without showing what has been done with the collaterals, and the burden of proof is on them to show what has been done with them.” Answer. We refuse this also. We have not seen any evidence in the case that would go to show that these notes in suit were paid by the substitution of new notes or other collaterals. The evidence, as we understand it, is, that when these notes matured they were merged or included in other and larger notes, and additional collateral security taken; that when tiie additional collateral was taken the notes had grown larger, and then the collateral grew larger. Now, if at any time it was shown that these notes were reduced below the original amount of $2,000, it was a payment by collaterals, and the defendant would bo entitled to credit for whatever amount it is shown they were reduced below $2,000. But, if we understand the proof, the indebtedness never was reduced, but it kept increasing all the time, and new collaterals were taken when the notes were increased. The notes were given for $2,000 originally. As they were not paid, the debt due James E. Brown never was reduced below $2,000, and there is no foundation for saying that the proof shows that he should have given credit on these particular notes for the amount that he received on other collateral securities. We understand Mr. Pollock to say that neither of these notes of Frederic Miller, indorsed by Adam Miller, nor the notes of Samuel G-. W. Brown, have been paid by the'payment of this collateral or otherwise. That is what, we understand, he swore to on the witness stand; that the note of S. G-. W. Brown remains unpaid, and the collaterals taken, as appear by the list, remain unpaid. According to that, then, S. G-. W. Brown owed the estate of James E. Brown largely in excess of the $2,000 taken as collateral or part collateral. We believe that is all that is necessary to say to the jury. If the testimony of Mr. Pollock is relied on we do not see how there can be anything in this case but a verdict for the plaintiffs for the amount of the notes and interest. (Fourth assignment of error.)
    The court instructed the jury to render a verdict for the plaintiffs. (Sixth assignment of error.)
    Yerdict and judgment accordingly.
    Defendant thereupon took this writ, assigning for error the action of the court, in permitting the amendment in the names of the plaintiffs, the rejection of defendant’s offers of testimony, the answers to defendant’s points, and the instruction to find for plaintiffs. The assignments of error with regard to the answers to defendant’s points were not sec. reg. in that they did not set out at length the points and answers.

      II. II. Goueher and L. MeQmstion, for the plaintiff in error. —
    The amendment should not have been permitted. The Act of Assembly contemplates the correction only of a mistake in the name and not in the title of a party: Freeland v. Penn. Bailroad, 2 Pearson 73 ; Ward v. Stevenson, et ah, 3 Harris 21; Commonwealth ex rel. v. Dillon, et al., 32 P. F. Smith 45; Young v. Young, 7 Norris 422.
    The transfer of mercantile paper as collateral security does not constitute the transferee a holder for a valuable consideration : Petrie v. Clark, 11 8. & B. 377; Walker v. Gfeisse, 4 Wharton 258 ; Depean v. Waddington, 6 Wharton 220; Hartman v. Dowdel, 1 Bawle 279; Trotter v. Shippen, 2 Barr 358; Oakford v. Johnson, 2 Miles 203; Jackson v. Polack, 2 Miles 362 ; Lord v. Ocean Bank, 8 Harris 384; Sitgreaves v. Bank, 13 Wright 359 ; Lenheim v. Wilmarding, 5 P. F. Smith 73 ; Ash-ton’s Appeal, 23 P. F. Smith 153; Boyer v. The Keystone National Bank, 4 W. N. C. 86; Muirhead v. Kirkpatrick, 9 Harris 240.
    Defendant could therefore set up the fact that he was a mere accommodation indorser as against plaintiffs.

      8. F. Bowser and L. Z. Mitchell, for defendant in error.—
    The amendment was clearly proper: Bangler v. Ilummell, 1 Wright 132; Commonwealth ex rel. v. Dillon, et al., 32 P. F. Smith 44.
    The notes were indorsed to plaintiff’s decedent as collateral, not for an antecedent debt but for a new and distinct consideration. Plantiffs were therefore in the position of purchasers for value: Kirkpatrick v. Muirhead, 4 Harris 123.
   Mr. Justice Sterbett

delivered the opinion of the court, January 2d 1882.

The real difficulty in the way of a successful defence in the court below was the fact, established by uncontradicted evidence, that the negotiable notes in suit had passed before maturity for a valuable consideration into the hands of a bona fide holder, since deceased, whose personal representatives were the plaintiffs of record. This presented an obstacle that the defendant below could not overcome by the aid of any evidence in the cause, or any testimony, which lie proposed to introduce. The notes, made by Frederic Miller to the order of and indorsed by defendant below, were delivered to Samuel Gr. W. Brown in consideration of the sale and transfer of his interest in the firm of Brown & Ivory, to Frederic Miller, the maker. Having thus originated in a regular business transaction, the notes were undoubtedly valid in the hands of the first indorsee, who before maturity and for a valuable consideration, passing to him at the time, indorsed and delivered them to James E. Brown, whose personal representatives are the plaintiffs below. Each of the notes was separately taken by James E. Brown, as collateral to a larger note made by Samuel G-. W. Brown and simultaneously discounted for him on the faith of the collateral, and the .proceeds drawn by him. The larger notes were renewed, but neither of them was ever paid or reduced. It is, therefore, a mistake to suppose that J ames E. Brown did not thus become a bona fide holder of the notes in suit for value. It is true, they were indorsed and delivered to him as collateral security, but not as collateral for a pre-existing indebtedness. The discounting of the larger notes, on the faith and credit of the note that accompanied each respectively, was a new and valuable consideration passing between the parties at the time; and the principal notes not having been paid, either in whole or in part, the collaterals were outstanding and valid in the hands of James E. Brown for their full face, and according to well settled principles the plaintiffs were entitled to recover: Munn v. McDonald, 10 Watts 270; Spering’s Appeal, 10 Barr 235; 2 American Leading Cases 231, and numerous authorities there cited. In several of these cases the distinction between a merely collateral security and a security given as an inducement to an act, which is performed, is clearly recognized.

Such of the facts above stated as were not admitted by the defendant in the court below were clearly proved by competent and uncontradicted evidence, and there was, therefore, no error in giving the jury binding instructions as to its legal effect. There was not a particle of evidence in the ease, on which they could have based any other conclusion.

While the third' and fourth assignments are not according to rule, and, therefore, not entitled to notice, it is very evident, from what has been said, that the points therein referred to were rightly refused, for the reasons given at length by the learned judge in his answers thereto.

The fifth and sixth assignments of error are not sustained. The offers of evidence embraced in the former were rightly refused, for the reasons given by the court below. There was no offer to show payment, either legal or equitable, to the holder of the notes.

As to the amendment complained of in the first and second assignments, we are of opinion that it was fully authorized by the letter, as well as the spirit, of our statutes on that subject. The cause of action was unchanged. In its inception the suit was against the payee and first indorser of the notes by a party supposed to be the legal holder thereof. But it'clearly appeared, during the progress of the trial, that this was a mistake; that, instead of the Kittanning Insurance Company being the legal, and James E. Brown the equitable, owner, at tbo time suit was brought, the latter was both legal and beneficial owner of the notes; and hence the amendment was properly allowed, in order that the case might be tried on its merits. The act of May 4th 1852, expressly authorizes the court, at any stage of the proceedings, to permit amendments, by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear that a mistake or omission has been made in the name or names of any such party.” Our statutes of amendments have been liberally construed, and it has been repeatedly held that parties might be stricken out or added whenever, by so doing, the canse can be tried on its merits ; and the right to so amend is not confined to a more mistake of fact in the name of the party. As is said in Commonwealth ex rel. v. Dillon, 32 P. F. Smith, 44: “ An action may be commenced in the name of a wrong party by mistake of law, and the legislature meant the power of amendment to extend to that case.” If the defendant below was surprised by the amendment he had a right to ask a continuance, but instead of doing so his counsel informed the court that he did not claim surprise nor ask a continuance.

We discover nothing in the record of which the plaintiff in error has just reason to complain. The insuperable difficulty was, as stated in the outset, that he had no available defence to the payment of the notes in the hands of a bona fide holder for value.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Lacock versus Commonwealth to use, etc.
    1. A. brought suit against B. and C. respectively the principal and surety upon a bond. Both defendants were served and both appeared. B. subsequently died, whereupon his name was, on motion of A., stricken from the record and the suit continued as against O. alone. On the trial of tile cause the plaintiff, under objection, testified to certain facts that had occurred prior to the death of B. Held, that it was error to admit this evidence. B. having been a party to and having bad notice of the suit, a judgment recovered therein against O. would constitute conclusive evidence in a suit brought by C. against B.’s administrator on the implied contract of indemnity. Hence the s,uit was substantially against the estate of B., notwithstanding the striking off of his name from the record. The plaintiff was, therefore, B. being dead, an incompetent witness.
    2. Tlio fact that subsequently in the above case a deposition of B., taken after suit brought and before bis death, was read in evidence by tlio defendant, did not affect the competency of the plaintiff as a witness.

      November 17th, 1881.
    Before Sharswood, O. J., Mercur,' Gordon, Paxson, Trunkev, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Washington county: Of October and November Term, 1881, No. 310.
    Debt, by the Commonwealth of Pennsylvania, to the use of A. J. Eiggle against Samuel L. Hughes and Oliver Lacock, upon the official bond of said Hughes, as administrator d. b. n. c. t. a. of Samuel Eiggle, deceased, in which bond the said Lacock was surety. Service was had upon both defendants, and both appeared by counsel. After suit brought the defendant, Hughes, died, whereupon the court, on motion, amended the record by striking out the name of the deceased defendant, so that the action should proceed against defendant, Lacock, alone. !
    On the trial, before Hart, P. J., the facts of the case appeared to be as follows : Samuel Eiggle died in 1844, leaving a widow and five children, whereof the plaintiff in the present case was one. By his will Eiggle directed a certain farm, whereof he had died seised, to be sold after the death or remarriage of his wife, and the proceeds to be divided among his children. He nominated one George Eiggle as his executor. Said George Eiggle afterwards died, whereupon letters of administration d. b. n. c. t. a., on the estate of Samuel Eiggle, were granted to Samuel L. Hughes. Hughes filed the official bond in suit.
    On October 14th 1861 the widow of Samuel Eiggle having x’emarried, Hughes obtained from the Orphans’ Court an order authorizing him to sell the farm. The sale was accordingly made, and on November 19th 1861, was confirmed by the court.
    On June 17th 1863, Hughes filed his account as administrator, which was the same day confirmed. Among his vouchers was a receipt in full for the proceeds of the farm, signed, or purporting to be signed, by all the children of the deceased, including the plaintiff.
    Subsequently, on August 4th 1879, the plaintiff, averring that he had never received his distributive share of said proceeds, instituted this suit.
    Plaintiff was offered as a witness on.his own behalf to prove that his signature to the receipt for the proceeds of the farm, was not genuine. Offer objected to, on the ground that the witness was incompetent to testify. Objection overruled, and evidénce admitted; exception. 0
    Subsequently, in the course of the trial, the deposition of Hughes, taken after suit brought, and before his death, relative to the circumstances attending the signing of- the receipt, was put in evidence by defendant.

      Verdict and judgment for the plaintiff, whereupon defendant took tills writ of error, assigning for error the admission of the plaintiff’s evidence.

      Me Crociten (with -whom were Mollwaine and Gow), for the plaintiff in error. —
    -Had the suit, at time of trial, been against Lacock and the administrators of Hughes, the plaintiff would have been incompetent, beyond .all question, as he would then have been excluded by both the spirit and letter of the law: Earns v. Tanner, 16 P. F. Smith 297; Hanna v. Wray, 27 P. F. Smith 27; Evans v. Heed, 28 P. F. Smith 415; Pratt v. Patterson, 31 P. F. Smith 114; Evans <o. Heed, 3 Nor. 254; Brady v. Heed, 6 Nor. I'll; Hess v. Gourley, 8 Nor. 195.
    If, by striking the name of Hughes, who was principal on the bond on which the action was brought, from the record, and allowing the action to stand against the surety alone, the plaintiff is enabled to recover a judgment against him on testimony which would be inadmissible in an action against the estate of the deceased principal, or in an action in which the administrators of the principal were joined with the surety, then the law is evaded; and the estate of Samuel L. Hughes, deceased, is thus indirectly charged with what could not be recovered in a direct action; because, in an action by Lacock against the administrators of Hughes, upon the contract of indemnity which the law will imply as made the moment the surety’s obligation is entered into (Ward v. Henry, 5 Conn. 595) the judgment recovered against him, would be evidence against them: Clark v. Carrington, 7 Crancli 322; Drummond v. Prestmau, 12 Wheat. 516; WLart. on Ev. § 770; and conclusive evidence, if notice has been given to defend the action: Greenleaf on Ev. §188; Biglow on Estoppel, 65; Dufiield v. Scott, 3 Term H. 374; Lloyd v. Barr, 1 Jones 42 ; Hanna v. Wray, 27 P. F. Smi+h 27; Barr v. Greenawalt, 12 P. F. Smith 175.'
    It will not do to say that the plaintiff was a competent witness under the Act of 1869, because Hughes’s deposition was taken and read in evidence. The plaintiff was not put on the stand to rebut or deny anything Hughes had testified to, but to make out his own case before it could be known whether the deposition would be read or not.
    Even if the deposition of Samuel L. Hughes had been read in evidence before the plaintiff offered himself as a witness, he still would have been incompetent. The third section of the Act of April 15th 1869, authorizes the testimony of all witnesses made competent by that act to be taken “ by deposition or commission issued as the case may require.” If the plaintiff wished to perpetuate his own testimony, his only way was to follow the provisions of that act by having his deposition taken, while all the parties were living, and there was a chance for cross-examination: Pratt v. Patterson, 31 P. F. Smith 114; Evans v. Reed, 3 Norris 254.
    Defendant in error did not appear, and presented no paper book.
   Mr. Justice Paxson

delivered the opinion of the court, January 3rd 1882.

This record presents the single question of the competency of the plaintiff below as a witness. The suit was an action of debt upon a bond given by Samuel L. Hughes, who was administrator of Samuel Riggle, deceased, and Oliver Lacock, who joined in the bond as surety of Hughes. The bond was conditioned for the proper application of the proceeds of certain real' estate sold by the administrator in pursuance of an order of the Orphans’ Court. Hughes, the administrator, was served and appeared by counsel. His deposition was subsequently taken, after which, and before the trial of the case, he died, and upon motion his name was stricken from the record, leaving the suit to stand against Lacock, the surety, alone. Upon the trial the plaintiff was admitted as a witness -to prove that he had never received his distributive share of the estate, and that a receipt for such share purporting to be signed by him, was not in fact so signed, nor was it signed for him by any one with his authority.

It is very clear that if the death of Hughes had been suggested upon the record and his administrator substituted, the plaintiff would have been incompetent. It has been repeatedly held that if there be an executor or administrator properly upon the record at the time of trial, the competency of witnesses remains as before the passage of the Act of 1869 : Brady v. Reed, 6 Norris 111. Does the fact that the name of Hughes was stricken from the record make any essential difference? The effect of this was, as before observed, to charge the surety alone. Yet the recovery here was a substantial recovery against the estate of Hughes. The judgment against the surety would be conclusive evidence in a suit by him against Hughes’s admin istrator, for the reason that Hughes had notice. He was an original party and appeared by counsel. He would be liable upon the contract of indemnity which the law implies the moment the surety’s obligation is entered into. A judgment recovered against a surety is always evidence in an action by him against his principal: Clark’s Executors v. Carrington, 7 Cranch 308: Drummond v. Prestman, 12 Wheaton 515; Wharton on Evidence, § 770 ; and it is conclusive evidence where notice has been given to defend the action: Lloyd v. Barr, 1 Jones 41; Hanna v. Wray, 27 P. F. Smith 27; Greenleaf on Evidence, § 188.

The fact that the deposition of Hughes was read in evidence by the defendant does not affect the competency of the plaintiff. The latter was examined before the deposition was offered. Besides, Hughes was a competent witness when his deposition was taken, and his subsequent death did not render his testimony taken before his death incompetent. This has been ruled in several recent cases. It is sufficient to refer to Evans v. Reed, 28 P. F. Smith 415, and 3 Norris 254.

We are of opinion that the plaintiff was incompetent to testify as to any matters which occurred prior to the death of Mr. Hughes. This sweeps away all of his evidence that is of any value, which, in view of the whole case, and of his laches in bringing this suit, is not much to be regretted.

Judgment reversed, and venire facias de novo awarded.


author: Chief Justice Shabswood

text:
    Craighead versus McLoney.
    1. Wherever a promissory note is altered after the execution thereof, in such manner as to impose upon the promisor any burden or peril ■which he would not otherwise have incurred, this is such a material alteration as will avoid the note as to him.
    3. Any alteration imposing such burden or peril will be held material and will avoid the note, even though the pecuniary liability be not increased or ihe time of payment changed thereby, and even though the same be entirely honest and made with no fraudulent intent.
    3. Where a promissory note is executed by two or more parties, any subsequent material alteration thereof without the consent of all the parties will avoid the note as against those parties who have not consented to such alteration.
    4. A joint and several promissory note was executed and delivered by two co-promisors payable one day after date. Subsequently, with the consent of one of the makers, but without the knowledge or consent of the other, the payee inserted into the note the words “at eight per cent, interest.” Suit being afterwards brought upon said note by tlio payee against the maker who had not consented to the alteration, Held, that the alteration was a material one and avoided the note as to the defendant.
    5. Where in such case the maker who had consented to the alteration of the note had died before the bringing of the suit, Held, that the plaintiff was incompetent to testify as to the fact of such consent being given. Held, further, that such evidence was wholly immaterial as against the defendant.
    November 37th 1881.
    Before Stiarswood, O. J., Mercuh, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.

      Error to the Court of Common Pleas of Washington county: Of October and November Term-1881, No. 62.
    Debt, by James McLoney against James Craighead, upon the following note under seal:
    $1,080. March 31st 1868.
    One day after date we, or either of us, promise to pay to James McLoney, or order, $1,080, without defalcation, for value received.
    Witness our hands and seals, at eight per cent, interest.

    Jqhn Haines, [seal.]
    James Craighead, [seal.]
    Defendant filed a special' plea, setting out, “ that the said supposed writing obligatory was not his deed.”
    Upon the trial, before Hart, P. J., after proof of the defendant’s signature, a note, in form as above given, was offered in evidence. It was objected to, for the reason that it showed upon its face that it had been altered by the addition of the words “at eight per cent, interest,” which were in a different handwriting from the body of the note.
    This alteration, the plaintiff admitted, had been made by him after the execution and delivery of the note, without the knowledge or consent of the defendant, Craighead; but he claimed that it was made under an agreement with John Haines, the co-promisor, who, as stated in the narr., died sometime before the bringing of this suit.
    For the purpose of showing the circumstances under which the alteration had been irfade, the plaintiff was offered as a witness in his own behalf to prove an agreement made with John Haines, deceased, by which eight per cent, interest was to be paid. He was objected to as incompetent in the action against Craighead to testify to any transaction between himself and the deceased co-promisor. This ' objection was overruled, and the testimony admitted.
    The court, in answer to the defendant’s points, charged, substantially, that the addition of the words, “ at eight per cent, interest,” was not a material alteration, and did not avoid the note as to defendant, unless the jury should find that the plaintiff had an actual design to defraud the defendant by inserting them. If they did not find that he had entertained such a design, the court instructed them to find for the plaintiff for the amount of the note, with interest at the rate of six per cent.
    Yerdict and judgment for the plaintiff for the full amount claimed. Defendant thereupon took this writ of error, assigning for error the admission of the plaintiff’s evidence and the charge of the court.

      A. Donncm (with whom was J. W. Dormcm), for the plaintiff in error. —
    Whether the alteration was, or was not, material was a question of law for the court: Stephens v. Graham, 7 S. & B. 508; Wood«. Steele, 6 Wallace 82; and does not depend, in any respect, upon the intent with which it was made, for if material, whether there was design to defraud or not, however the act might be done, “in ignorance and in innocence,” the policy of the law makes the instrument void without relation to the motive: Marshall v. Gougler, 10 S. & B. 169; Getty v. Shearer, 8'Harris 15; Beary v. Haines, 4 Wh. 20; Fay v. Smith, 1 Allen 477 ; 2 Daniel on Neg. Inst. 349; Fulmer v. Seitz, 18 P. F. S. 237.
    The true test as to whether an alteration is, or is not, material, is, whether the written instrument speaks identically the same language after the alteration as it did before : Heffner v. Wenrieh, t^Casey 423 ; Miller v. Gilleland, 7 Hams 119; Gardner v. Walsli, 5 E. & B. 82; Me Yean v. Scott, 46 Barb. 379; Wallace v. Jewell, 21 Ohio St. 163 ; Booth v. Powers, 56 N. Y. 22; Simpson v. Stackhouse, 9 Barr 186 ; Hill v. Cooley, 10 Wr. 250 ; Portage County Bank v. Lane, 8 Ohio St. 405 ; Wade v. Withington, 1 Allen 562; Blair <o. Bank of Tenn., li Humph. 84; Hewins v. Cargill. 67 Me. 555.
    In the present case the alteration was clearly material:
    1st. It changed the contract from one bearing interest from maturity to one bearing interest from date, which, by all the authorities, is held to he such a material alteration as avoids a note: Neff v. Horner, 13 P. F. S. 327 ; Fulmer v. Seitz, 18 P. F. S. 237; Fay v. Smith, 1 Allen 477; McGrath v. Clark, 56 N. Y. 34.
    2nd. It changed the contract as to the rate-of interest. This was clearly a material alteration: Draper v. Wood, 112 Mass. 315; Hart v. Clouser, 30 Ind. 210; Whitmer v. Frye, 10 Mo. 348 ; Lee v. Starbird, 55 Me. 491 ; Warrington v. Early, 2 Ell. & Bl. 763 ; Iiarsh v. Klepper, 28 Ohio St. 200.
    Plaintiff was clearly an incompetent witness. Had the plaintiff brought a joint action against the administrators of llames and J ames Craighead, as he might have done (Dingman v. Amsink, 27 P. F. S. 114), it would not admit of a doubt, but that he would have been incompetent; the spirit and letter of the law would then unite in excluding Mm (Brady v. Beed, 6 Nor. Ill), or had he brought an action against Haines’ administrators alone, he would have been incompetent. But a judgment in this case is evidence in any action brought by defendant against the representatives of Ms co-promisor for contribution : Clark v. Carrington, 7 Cranch 332; Drummond v. Preston, 12 Wheat. 516. This is substantially, therefore, an action in which the estate of Haines is a party defendant, and must be governed by the rules which would apply were such actually the case: Barr v. Greenawalt, 12 P. F. S. 172 ; Hanna v. Wray, 27 P. F. S. 27; Ewing v. Ewing, 9 W. N. C. 491; Standbrid'ge v. Catanach, 4 W. Ñ. C. 176; Hess v. Gourley, 8 Norris 195.
    The testimony of plaintiff was, at any rate, wholly irrelevant as against defendant.: Fulmer v. Seitz, 18 P. F. S. 237.

      Freeman Brady, Jr. (with whom were Braden and Milled), for the defendant in error. —
    The rigor of the ancient law on the subject of innocent alterations in instruments of writing no’ longer prevails in this state, nor yet in this country, so far as we know: Beary v. Haines, 4 Whar. 20: Kountz v. Kennedy, 13 P. F. Smith 187.
    We admit that the law is, that the voluntary alteration of a sealed note by the holder, in a material part, to the prejudice of the party who has it to pay, will avoid it. This doctrine is sustained by such cases as Marshall <v. Gougler, 10 S. & R. 169 ; Neff v. Horner, 13 P. F. Smith 327, and others of like import. On the contrary, if the alteration is immaterial and not to the prejudice of the maker, and not fraudulent, it will not avoid the instrument: Gardinier v. Sisk, 3 Barr 326; Burkholder v. Lapps’ Executor, 7 Casey 322; Struthers v. Kendall & Son, 5 Wr. 229; Hooker v. Jamison, 2 W. & S. 438; Kountz v. Kennedy, 13 P. F. Smith 187; Robertson v. Hay, 10 Norris 242; Smith v. Croker, 5 Mass. 538; Baehellor v. Priest, 12 Pick 399-405.
    The administrator of Haines was not a party to the suit. Plaintiff was therefore a competent witness.
   Chief Justice Shabswood

delivered the opinion of the court, January 2d 1882.

There is a wilderness of cases in the books on the subject of the alterations of notes and other instruments of writing, through which it would require much time and labor, and great ingenuity, for any one to thread his way. Of course they are not all consistent and easily reconciled. Fortunately, it is not required of us to attempt this task in the present case. Perhaps a key to this variety and want of harmony may be found in the remark of Mr. Chief Justice Thompson, in Kountz v. Kennedy, 13 P. F. Smith 190: “ There is no subject in the books which has

occupied a much larger share of attention than questions of the alteration of writings, but, after all that has been said, each case must stand much more on its own facts than upon the rules announced in any given case.” My own opinion is, that the courts have gone far enough in permitting writings to be- tampered with.

It appears to be settled, however, that an alteration entirely immaterial, which places no responsibility on the parties, to which they were not subject before the change, does not vitiate the instrument. Its identity remains. The difficulty has been always in determining what is or what is not material. It is evident, that any tampering with the instrument which imposes upon the party a burden or a peril, which he would not else have incurred, is an injury to him, and therefore material. It is a mistake to infer that whether the pecuniary liability is increased or the time of payment changed is the test. In these respects the party may be no worse, yet his rights and remedies on the instrument may be seriously affected. Wherever this is so, it does not matter that the alteration was entirely honest, and with no fraudulent intent. This will be often found to be the case, where the note or instrument has been executed by several parties. But it may be in other instances, as where attesting witnesses have been added to an instrument after execution : Marshall v. Gougler, 10 S. & R. 164. An alteration of the date of a promissory note by the payee, whereby the time of payment is retarded, avoids the note: Stephens v. Graham, 7 S. & R. 505. We might multiply eases of this type, where the amount of the pecuniary responsibility remained unchanged. Wherever, therefore, a note or instrument is executed by two or more parties, any alteration in it, without the consent of all, renders the recourse of the party who has not assented more difficult and expensive. In the case in hand, when Craighead, if compelled to pay the note, comes to pursue his remedy against his copromisor, either for indemnity or contribution, as the case may warrant, it will not be enough to produce and prove the note. Lie must account for the alteration apparent on its face. He must show that it was made with Haines’s consent. It is clear then that the alteration was material to him. So, if Craighead had been sued in some other state, he would have to show that the note was executed in Pennsylvania, and that by the law of this state only six per cent, could be recovered upon it. In short, as Mr. Parsons has briefly and well stated it in his treatise on Promissory Notes, p. 582: “ Any alteration which changes the evidence or mode of proof is material.”

These considerations are sufficient to dispose of this case without adverting to the fact, that by the alteration one day’s additional interest was actually imposed on the defendant. It is no answer to say that this day’s interest was not demanded or received, or to plead the maxim de minimis non curat lex. In Stephen v. Graham, supra, and in Kennedy v. Lancaster County Bank, 6 Harris 347, the payment of the note was retarded by the alteration of the date only a single day.

We think, therefore, the learned court below erred in holding the alteration in this case immaterial and in so instructing the 3l«T-

It appears to us also, that McLoney was incompetent as a witness for the purpose for which he was offered. It is true the representatives of Haines were not parties, but still it is clear that his estate would ultimately be answerable, either for the whole amount if Craighead was a surety, or for his contributory share if he was only a co-promisor. McLoney cannot be a witness to fasten this responsibility on the estate of the dead man by his testimony, either directly or indirectly. Under the view we have taken of the materiality of the alteration, however, the evidence of this witness as to- the assent of Haines and the honesty of the alteration is not important.

Judgment reversed.


text:
    Johnson versus The Hoosier Drill Company.
    A. entered into articles of agreement with B. -whereby he was constituted the agent for the sale of certain drills manufactured by B. in a specified district. He agreed to canvass the region thoroughly, guarantee all sales of drills, take written orders from all purchasers and to sell no other drill than those of B.’s manufacture. In pursuance of this contract A. did canvass the region and effected sales of twenty drills, for which, however, he failed to take written orders from the purchasers. B. was able to furnish only five of the drills so sold, and wrote to A. apologizing for his failure to forward the other fifteen and assigning as his reason the fact that he was unable to manufacture the drills speedily enough to meet the demand. Subsequently, in an action by B. against A. to recover the value of the five drills delivered, defendant set up as a defence the damages sustained by him by reason of the plaintiff’s failure to deliver the other fifteen. Held, that he was entitled to avail himself of that defence.
    November 17th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of" Fayette cowivt/y: Of October and November Term 1881, No. 20J.
    Debt, by the Hoosier Drill Company against John C. Johnson to recover the price of five drills sold by defendant as their agent.
    On the trial, before Willson, P. J., the following facts appeared. On December 13th 1878, plaintiff entered into articles of agreement with defendant, whereby the latter was constituted plaintiff’s sole agent for the sale of the agricultural implements made by them in certain townships of Fayette county. These articles contained, inter alia, the following clauses:

      “In consideration of the said agency the said J. C. Johnson & Co. hereby agrees to make every reasonable effort to sell as many of said implements in said territory as the trade therein will demand, by thoroughly and diligently canvassing the territory herein mentioned, during the season, and also agrees to guarantee the sale of all the following described implements and all others ordered by them during the season, and further agrees not to sell (directly or indirectly) any other grain drill except the Hoosier while this agency exists. . . . The said party of the second part (J. C. Johnson & Co.) further agrees to indorse and guarantee payment of all notes taken in payment for said implements, and be ready for final settlement by the first day of October 1879, and the said party of the second part also further agrees to take a written order for every drill sold by them.”
    The evidence showed that in pursuance of these articles defendant diligently canvassed the district for about two months, employing during a portion of that time an assistant, and that he hail expended a considerable sum of money in prosecuting said canvass. He succeeded in selling a number of plaintiff’s implements, among others twenty drills, for which, however, he did not take written orders from the purchaser’s. He at once requested plaintiff to forward the twenty drills for delivery. Plaintiff was, however, unable to furnish more than five of said drills, and wrote to defendant as follows, on September 30th 1879 :
    “Mr. John C. Johnson, Uniontown, Pa. — Dr. Sr.; — In answer to yours of 26th inst., in regard to an allowance account not filling your orders, have to say that it was not from lack of any desire on our part, but was because we were entirely unable to fill your orders at time received. It was not in our power to meet the demand in full for our drills this season. We did all that could be done, but the odds were too heavy against us. You no doubt feel very bad because you did not get drills to fill your orders, and we can assure you that we feel very bad about it. At time your order was received, we had many unfilled orders ahead that were received long before yours, that were justly entitled to precedence. We will also direct your attention to the fact that we supplied yon with all the drills you bought. It being from lack of ability and not from lack of desire that we did not supply you, or, in other words, it not being in our power to do it, we will suffer unjustly by allowing any commissions or by payment for time account of your unfilled orders. As a reasonable and just man, we are sure you will not press a claim that is not sustained by justice. If you will reconsider the matter in the light of reason, we are sure you will see the wrong that we would sustain by allowing a claim of this kind, and we cannot believe you want us to suffer unjustly.
    “ Respectfully, Hoosier Drill Co.”
    Subsequently, defendant declining to account to plaintiff for the price of the five drills which had been furnished, plaintiff brought this suit.
    Defendant requested the court to charge:
    That if the defendant, under the contract of' December 13th 1878, performed services, and made sales of drills, &c., which he was authorized to sell, and ordered the same from the company, and the company failed or refused to furnish the drills so sold and ordered, the defendant may set off against plaintiff’s claim the value of his services in making such sales, or the amount he would have realized by said sales if the drills had been furnished. Refused.

    The court charged, inter alia, as follows : “ While we think there is merit in the defence set up by Mr. Johnson, in regard to his having employed his time in endeavoring to make sales of these implements, yet at present, under our impression of the construction to be put upon the contract, we think he cannot avail himself of it as a defence to the claim that this suit is brought to recover, and we therefore have to instruct you that the plaintiff is entitled to recover the price of the four plain drills and the one drill with fertilizing attachment, amounting to $282.50, with interest.”
    Yerdict and judgment for the plaintiff, accordingly, in the sum of $305.10. Defendant, thereupon, took this writ of error, assigning for error the answer of the court to his point, and the portion of the charge above cited.

      Boyle and Mestrezat, for the plaintiff in error,
    cited Shaw v. Badger, 12 S. & R. 275; Hubler v. Tamney, 5 Watts 51; Hunt v. Gilmore, 9 P. F. Smith 450 ; Patterson v. Hidings, 10 Barr 508.

      W. 3. Pla/yford, for the defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court, January 3d 1882.

The Hoosier Drill Company, plaintiffs below, appointed the defendant their agent to make sale of their agricultural implements in certain townships of Fayette county. The article of agreement between the parties, after having in express terms created such agency, contains this further provision : “In consideration of the said agency, the said J. C. Johnson & Co. hereby agrees to make every reasonable effort to sell as many of said implements, in said territory, as the trade therein will demand, by thoroughly and diligently canvassing the territory herein mentioned during the season, and also agrees to guarantee the sale of all the following described implements, and all others ordered by them during the season, and further agrees not to sell (directly or indirectly) any other grain drill, except the Hoosier, while this agency exists.”

The evidence, on the part of the defendant, shows that he was engaged for about two months in canvassing the district,'a portion of the time with an assistant, and expended a considerable amount of money in prosecuting said canvass. lie succeeded in making sales of a number of plaintiffs articles, among others, upwards of twenty drills. He was able to deliver only five drills, the plaintiffs having declined to furnish more, upon the ground of their inability to do so, the demand for their implements having greatly exceeded the capacity of their works. The plaintiffs having brought suit to recover the value of the five drills delivered, the defendant attempted to set off, by way of defence, the damages sustained by him by reason of plaintiff’s refusal to deliver the drills as ordered. By the defendant’s point the learned judge was requested to instruct the jury: “ That if defendant, under the contract of December 13th 1878, performed services, and made sales of drills, &c., which he was authorized to sell, and ordered the same from the company, and the company refused, or failed, to furnish the drills, &c., so sold and ordered, the defendant may set off against plaintiff’s claim the value of his services in making such sales, or the amount he would have realized by said sales if the drills had been furnished.”

This instruction was refused, the learned judge conceding the merit of the defence, yet holding under the language of the contract the defendant could not avail himself of it, and gave the jury a binding instruction to find for the plaintiffs.

No reason was given for this ruling. In the argument at bar, however, the learned counsel for the plaintiffs relied principally upon the following: 1st. That the defendant had not taken written orders from the purchasers as required by the agreement; and 2d. That the company did not agree to furnish the drills.

It is sufficient to say, in regard to the first proposition, that the company did not decline to furnish the drills because the defendant did not send written orders from the purchasers. On the contrary, it distinctly appears from the plaintiff’s letters of August 25tli aud September 30th 1879, that the refusal was not from any lack of desire on our part, but because we were entirely unable to fill your orders at time received. It was not in our power to meet the demand in full for our drills this season.” The reason now set up, that the orders were not in writing, is manifestly an after-thought, and an attempt to avoid the consequences of their failure to deliver the drills.

An agreement to deliver such implements as the defendant sliotild succeed in selling is necessarily implied from the express terms of the contract. The defendant was not only authorized to sell, but he was required to exert himself to do so. He was to canvass the territory specified in the agreement, and he was, moreover, bound not to. sell any other grain drill'than the one made by plaintiffs. Where an agent sells an article with the authority of the principal, I know of no rule of law which would justify a refusal to deliver it on the part of such principal, and, at the same time, deny all compensation for the breach.

The defendant’s point should have been affirmed. The right, under our defalcation act, to set off the damages arising from such breach of contract, has been settled by Shaw v. Badger, 12 S. & R. 275; Huber v. Tamney, 5 Watts, 51; Patterson v. Hulings, 10 Barr 506; Hunt v. Gilmore, 9 P. F. S. 150, and numerous later cases.

The judgment is reversed, and a venire facias de novo awarded.