author: by Agnew, J.

text:
    Drake versus Brown. Drake’s Appeal.
    1. All possible titles vested or contingent in real estate may be taken in execution, provided there be a real interest in the defendant, legal or equitable.
    2. Devise to the wife “ all my real and personal estate to manage as she thinks best until my youngest child becomes of age, for the purpose of keeping my family together, and after she becomes of age, if my boys should both live, then that Daniel and Charles shall have all the real and personal estate at that time by paying to my three girls, Nancy, Sarah and. Mary, each of them $300, making $900, and then it is my will that my wife Rachel shall have her living off of my estate as long as she remains my widow. * * * If either of my boys should die leaving no issue, I wish my other son to have all the real and personal estate.” Daniel having survived Charles was entitled to the estate, both in possession and remainder.
    3. Before the youngest daughter came of age, the sheriff sold Daniel’s estate in the land. Held, that the purchaser became entitled to it.
    4. A purchaser at sheriff’s sale to recover possession from the defendant in the execution, need not show more than his deed and the proceedings under which it was made.
    5. The $900 to the daughters was a charge on the land, and they were entitled to receive their legacies from the proceeds of the sheriff’s sale.
    6. Daniel’s title being extinguished by the sale, he had no standing to object to the payment of the legacies.
    7. He should have objected to the sale of his interest before, not in the distribution of the proceeds.
    March 20th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Pike county, No. 418, to January Term 1870, distributing the proceeds of the sheriff’s sale of the real estate of Daniel Y. Drake.
    Error to the Court of Common Pleas of same county, No. 117, to January Term 117, to the judgment of that court in an action of ejectment, commenced September 2d 1869, by William Brown, against Daniel V. Drake and Rachel Drake.

      The land in controversy had been the estate of Ephraim Drake, deceased, who died September 5th 1853, having made his will, proved September 24th 1853. The provisions were as follows: “■I give unto my present wife Rachel all my real and personal estate, so long as she remains my widow, to manage as she thinks best until my youngest child becomes of age, for the purpose of keeping my family together, and after she.becomes of age, if my boys should both live, it is my will then that Daniel Y. Drake and Charles Drake shall have all the real and personal estate at that time by paying to my three girls, Nancy Eliza, Sarah Ellen and Mary Ann Drake, each of them three hundred dollars, making nine hundred dollars, and then it is my will that my wife Rachel shall have her living off of my estate as long as she remains my widow. N. B. It is my will that if either of my girls should die, leaving no issue, then three hundred dollars to be equally divided between the other two girls. It is my will that my girls should have $900. And if either of my boys should die, leaving no issue, I wish my other son to have all the real and personal estate as above. Lastly, I hereby appoint my wife Rachel executor,” &c. Letters testamentary were granted to Rachel Drake. Charles Drake died April 7th 1862, unmarried and without issue.
    To February Term 1865, a judgment for $800 was recovered by Daniel M. Yan Auken against Daniel Y. Drake and Rachel Drake. On the 6th of February 1866, Daniel, claiming to own the land, and he and the widow being in possession, by articles agreed to sell it to Brown, the plaintiff: — this contract Drake refused to carry out. On the 16th of May 1868, the land devised was sold by the sheriff under executions upon the Yan Auken judgment, and was purchased by the plaintiff for $2505.
    Mary Ann Drake, the youngest child of Ephraim Drake, attained the age of twenty one-years, October 16th 1868. The widow is living, never having married, and is one of the defendants in this case. She and Daniel live on the premises.
    On the trial of the ejectment, the court (Barrett, P. J.) charged: — * * *
    “ At the time of the sale, the widow had in the land only an estate for years to terminate at a fixed period. After its termination, she was to have a living off of it, but would not be entitled to the possession. She is now entitled to the possession. Daniel Y. Drake had an estate under the will; an estate in remainder. It was a vested remainder, and was the subject of a levy and sale under the judgment against him. The sheriff’s deed conveyed that right to the plaintiffs. After the 16th. of October 1868, Daniel Y. Drake was entitled to the land in fee simple: true there were conditions that required his acceptance, but can his intention to accept be doubted ? He was in the actual possession with his mother. He claimed the land and tried to make sale of it. He was in possession-when the suit was commenced, and is defending under his title obtained through the will of his father. It is not a contest with creditors, but between himself and the sheriff’s vendee. The plaintiff has by means of a judicial sale the title of Daniel V. Drake, and as Rachel Drake is not entitled to the possession, the verdict of the jury should be for the plaintiff for the premises in dispute.” The verdict was for the plaintiff.
    March 30th 1871,
    The proceeds of the sheriff’s sale were brought into court and an auditor, September 21st 1868, reported
    ‘‘To Nancy_ElizaJDrake| daughters and legatees r - — - - To Sarah Ellen Drake To Mary Ann Drake J Ephraim Drake, deceased 0f f $300 01 < 300 ( 300
    the remainder to other judgments.
    The report was confirmed by the Court of Common Pleas, and from the decree of confirmation Daniel Y. Drake appealed. The errors assigned were confirming the report of the auditor and the charge of the court.

      jS. E. Eimmieh (with whom was G. G. Waller), for plaintiff in error and appellant,
    cited Baker’s Appeal, 9 P. F. Smith 316; McLanahan v. McLanahan, 1 Penna. R. 96.

      G. R. Eox, for defendant in error and appellee.
    “ The lien of a legacy charged upon land is discharged by a judicial sale of the land, though the legacy is payable by instalments, some of which are not due at the time of the sale: Hellman v. Hellman, 4 Rawle 440; Nichols v. Postlethwaite, 2 Dallas 131; Tower’s Appropriation, 9 W. & S. 104; Barnet v. Washebaugh, 16 S. & R. 410; Randolph’s Appeal, 5 Barr 245; McLanahan v. Wyant, 1 Penna. R. 112; Lobach’s Appeal, 6 Watts 167. The purchaser takes the land with the charge for the widow: Hamilton v. Overseers, 2 Jones 147.
    Daniel took the remainder in fee: Lapsley v. Lapsley, 9 Barr 180; De Haas v. Bunn, 2 Barr 335.
   The opinion of the court was delivered,

by Agnew, J.

These cases- were heard together, and may be embraced in one opinion. It is the settled doctrine in this state that all possible titles, vested or contingent, in real estate, may be taken in execution and sold, provided there he a real interest in the defendant in the execution, legal or equitable: Rickert v. Madeira, 1 Rawle 329; Humphreys v. Humphreys, 1 Yeates 427; Hunt v. Lithgow, Id. 24; De Haas v. Bunn, 2 Barr 337. The fact, therefore, that Daniel Y. Drake’s estate was not to take effect until his youngest sister became of age, and that the levy and sale were made a few months before that time, will not render' the sale void. Under his father’s will, Daniel having survived Charles, was clearly entitled to the estate when it fell in to him, both in possession and in remainder. It is immaterial whether his interest in the property was vested or contingent, it was liable to his debts, and by the. sale of it William Brown, the purchaser at the sheriff’s sale, became entitled to it. It is also well settled, that a purchaser at sheriff’s sale is not bound to show more than his deed, and the proceedings under which it was made, to recover the pos session from the defendant in the execution: Green v. Watrous, 17 S. & R. 393, 398; Eisenhart v. Slaymaker, 14 Id. 153, 157; Little v. Delancey, 5 Binn. 270; Act of 16th June 1836,. §§ 106, 109, Purd. 450, pi. 129-132; It is evident, therefore, that Daniel Y. Drake, who was in possession of the land at the time of the levy and sale, and also when the ejectment was brought, had no defence to that action. He must yield up the possession to Brown, the purchaser at sheriff’s sale.

Judgment is therefore affirmed.

The sum of nine hundred dollars, directed to be paid by Daniel and Charles Drake to their sisters Nancy, Sarah and Mary, was evidently intended by the testator to be charged upon the land devised to Daniel and Charles, or the survivor. They were to have the land by paying this sum, and this sum was the share set apart for the girls out of the land, whether all lived or some died. This being the case, the sisters are entitled to receive their legacies out of the proceeds of the sheriff’s sale. Clearly Daniel V. Drake, the appellant, has no right to object to this. His title was extinguished by the sale, and the money necessarily must be applied to the encumbrances. If he had any objection to the sale of his interest in the land, it should have been made before, and not in the distribution of the proceeds.

Decree affirmed, with costs.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Loew’s Administrator versus Stocker.
    1. A joint and several bond of indemnity for selling under an execution was given to a sheriff, it was not executed by the principal. A recovery could be had against one of a number of sureties who signed the bond.
    2. When the defendant signed, the names of all the co-obligors mentioned in the bond were to it, the name of one of them having been put there without his authority. The others were liable notwithstanding.
    3. In such case there is no implied condition that all named as obligors should sign to make it binding on any.
    4. If either signer wished to protect himself he should deliver it as an escrow.
    5. The acceptance of the bond by the obligee did not imply an affirmance to either obligor that it had been executed by the others.
    March 20th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J.„ at Nisi Prius.

      Error to the Court of Common Pleas of Oarhon county: No. 297, to January Term 1871.
    This was an action of debt, commenced August 29th 1867, by Francis Stocker, late sheriff of Carbon county, against Jonathan Brock, O. H. Wheeler, E. W. Harlan and Conrad Loew, who survived Amos Lentz.
    The declaration was against the defendants jointly, on a bond given by them to indemnify the plaintiff for selling .goods under an execution at the suit of Maria Brock against Almira Knowles and William Reed.
    The bond was joint and several in the penalty of $8000, and was signed, “ Jonathan Brock, per his authorized attorney, O. H. Wheeler,” and by the other obligors.
    On the first trial of the case it appeared that the bond had not been executed by Brock or by his authority; a special verdict was found for the plaintiff. The court below afterwards allowed the plaintiff to amend by striking out the name of Brock, and then entered judgment against the other defendants on the verdict. The Supreme Court reversed this judgment, set the verdict aside and awarded a venire facias de novo (11 P. F. Smith S47).
    On the second trial the names of all the defendants except Loew were stricken from the record. Loew afterwards died, and Thomas Kemerer, his administrator, was substituted.
    The facts appear in the charge of Dreher, P. J., which was referred to and approved by the Supreme Court.
    Both parties presented points to the court, all raising the question whether Loew alone could be held liable on the bond.
    The court charged: * * *
    “ Counsel for plaintiff and defendant agree that there are no disputed facts to go to the jury, and that the case is to be determined by the rulings of the court upon the legal points presented. Tracey Beadel, on the 18th day of August 1857, obtained judgment in this court against William Reed and Almira Knowles, administrators of L. D. Knowles, deceased, for the sum of $1562.75. On the 7th day of December 1857, Beadle assigned the judgment to Maria B. Brock, then and stil] a married woman, wife of Jonathan Brock, of Philadelphia. On the 11th day of March 1858, an alias fieri facias was issued upon said judgment by the use plaintiff Maria B. Brock directed to Francis Stocker, the present plaintiff, then sheriff of Carbon county, who at the request of the plaintiff levied on personal property, some of which was claimed by William Reed and Almira Knowles, as their individual property. The sheriff demanded indemnity, and the bond now in suit was drawn up by plaintiff’s attorney, and was executed in the name of 1 Jonathan Brock, per his attorney O. H. Wheeler,’ and was also signed by O. H. Wheeler, E. W. Harlan, Amos Lentz and Conrad Loew. The bond was signed by all the obligors originally named in the body of the bond, excepting J. K. Leavitt, in the office of the plaintiff’s attorney, O. H. Wheeler, Esq., in the absence of the sheriff. The sheriff came into the office soon after and saw the bond, and objected to its sufficiency, and wanted some other name than Leavitt, who though named in the body of the bond had not signed it. The sheriff went out of the office, and Mr. Wheeler soon if not immediately afterwards stepped out and met Mr. Loew, and brought him into the office. The name of Leavitt was then or before erased in the body of the bond, and Loew’s name being interlined he signed it. Loew’s signature is the last in point of time and in the order named in the body of the bond and of the signatures. The sheriff returned to the office very soon after Leow had left, and Mr. Wheeler then handed him the bond, and the sheriff took it. The obligors all signed the bond during the same day or evening. After the delivery of the bond to the sheriff, he proceeded in the execution of the writ, and sold the property levied on, being the same property mentioned in the bond of indemnity. William Reed afterwards brought suit against Stocker the sheriff, 0. H. Wheeler, Jonathan Brock and Maria B. Brock, to October Term 1858, in trespass for seizing and selling that part of the property claimed as his individual property, and recovered judgment January 3d 1862, for $2071 against all the defendants named in his writ, excepting Maria B. Brock, who was not summoned. The sheriff, plaintiff in the present suit, seeks to recover from the defendants the amount of the Reed judgment, with its interest and costs. The bond of indemnity is joint and several. Wheeler had no authority from Jonathan Brock to sign his name. Brock was not present at the signing, nor has he since ratified Wheeler’s act by any writing under seal, or any writing at all. Under these facts the bond is not the bond of Jonathan Brock, and it is therefore contended that it is not the bond of Conrad Loew, and that there cannot be a recovery against the defendant in the present suit. * * *
    “ In the course of the argument it has been contended by counsel of defendant that Wheeler was the agent of Stocker, the sheriff, in procuring the signature of Loew, because the sheriff objected to the sufficiency of the bond, and required some other name in place of Leavitt, and Wheeler then got Loew to sign. We think this position is not tenable. Wheeler was acting as the attorney of Mrs. Brock, the plaintiff in the fi. fa., whose duty it was to give the sheriff a sufficient bond of indemnity. The sheriff did not ask Loew to sign nor is it shown that he was present when he did sign. Indeed, the evidence is that he was not present and had no knowledge of who was going to sign in place of Leavitt until the bond was delivered to him with Loew’s name affixed. The question presented in the present case is, whether one of the obligors in a joint and several bond, given to indemnify a sheriff in selling property on an execution at tbe suit of a party not joining in the bond can avoid the bond as to himself by showing want of authority in a person signing, before he did, as attorney for one of the obligors, in the absence of evidence that he signed conditionally or upon the strength of the signature thus signed without authority, and where he did not sign at the request, nor in the presence of the sheriff, and it not appearing that the sheriff had knowledge of the want of authority of the attorney.
    “ Why should he be relieved from his obligation ? He must be presumed to know that by signing a joint and several bond he became liable to a several suit upon the bond. He is presumed to know that the sheriff had the right to demand the bond, and that he could look to all or either of the obligors, as he might elect, for indemnity, in case he suffered damage for doing the act that the bond was intended to induce him to do. Is the sheriff, when a bond of indemnity is presented to him by a party or attorney in a cause, to inquire whether all the signatures are genuine ? * * * The surety is supposed to be the friend of the party whose duty it is to indemnify, and he signs his name as an inducement to the sheriff to act, and we think it more reasonable to hold that, where a party signs a bond of indemnity to a sheriff he thereby asserts the genuineness of all the signatures preceding his own, and that if they are not genuine he will be individually responsible. * * *
    “ Entertaining the views before stated, we hold that the bond in the present suit is good and binding as against Conrad Loew and that the plaintiff is entitled to recover against the defendant’s administrator ** h»
    The jury found for the plaintiff $3000. The defendant took a writ of error and in a number of specifications assigned the charge of the court for error.

      S. Green (with whom was G. Albright), for plaintiff in error.—
    As Leow was a surety, it is essential there should be a valid principal obligation, and if such is not the case the obligation of the surety is gone: Theobald on Prin. and Surety, 1 Law Lib. 1, 2; Wood v. Washburn, 2 Pick. 24; Bean v. Parker, 17 Mass. 591. Unless this instrument was, as it purports to be, the valid obligation of all the parties to it, it is not the bond of Conrad Leow : Barrington v. Bank, 14 S. & R. 423; Underhill v. Horwood, 10 Ves. 226; Fertig v. Bucher, 3 Barr 308. The question is, what was the real contract of the parties, and when we have discovered that, we enforce it: Keyser v. Keen, 5 Harris 327; Grim v. School Directors, 1 P. F. Smith 219; Sharp v. U. S., 4 Watts 21; Mears v. Commonwealth, 8 Id. 225; Biery v. Haines, 5 Whart. 563; Seaton v. Henson, 2 Show. 28; Smith v. Weld, 2 Barr 54; Pepper v. State, 22 Ind. 399 ; Sacramento v. Dunlap, 14 Cal. 421; Swanson v. Ball, 1 Hemp. 39: Brown v. Johnson, 13 Gratt. 644.

      March 30th 1871,
    Loew bad a right to presume that Brock had executed the bond, and the law will presume that when Loew signed, he did so with the expectation that Brock was bound along with himself, and that the contract was therefore the joint contract of all. There was no negligence in Loew: Railroad v. Hummell, 8 Wright 379; Swan v. The N. Br. Aust. Co., 2 Hurlst. & C. 175; Freeman v. Cork, 2 Exch. 654; Grubb v. Cottrell, 12 P. F. Smith 28.

      M. M. Dimmick, for defendant in error.
    The bond is the single obligation of Conrad Loew: 1 Chitty on Contracts 499 ; Adams’ Equity 422 note, 426 note, 441 note; Hobbs v. Parker, 31 Maine 143; Yeates v. Pryor, 6 Eng. (Ark.) 68; Hall v. Thompson, 1 Sm. & Marsh. 443. Stocker stood in no fiduciary relationship with Loew: Perkins v. McGavock, Cooke 415 ; Wason v. Wareing, 15 Beav. 151; Fulton v. Hood, 10 Casey 371. A surety cannot interpose as a defence against paying for the defaults of his principal, that the name of another surety upon the same bond was obtained by fraud, unless the signature of the latter was a condition by which to obtain that of the former: Franklin Bank v. Stephens, 39 Maine 533; Selser v. Brook, 3 Ohio 302 ; 1 Parsons on Notes & Bills 235 ; Loomis v. Fay, 24 Vermont 240 ; Deardorff v. Foresman, 24 Ind. 418; Webb v. Baird, 27 Id. 368; Blackwell v. The State, 26 Id. 204; State v. Pepper, 8 Am. Law Register, New Series, 665; Carr v. Moore, 2 Id. 602; Middleton v. Sandford, 4 Campbell 34; 1 Chitty’s Pleadings 43; Jones v. Cothwaite, 17 Iowa 393; Aimes v. McClay, 14 Id. 281; Parsons on Notes & Bills 244; Chitty on Contracts 499; Keyser v. Keen, 5 Harris 327; Wood v. Ogden, 1 Harrison (N. J.) 453; Cutter v. Whittemore, 10 Mass. 443; Adams v. Bean, 12 Id. 137; Girard v. Boss, 1 Dallas 119; Ohio v. Bowman, 10 Ohio 455.
   The opinion of the court was delivered,

by

Sharswood, J.

This action was against the defendant below as the administrator of one of the obligors of a joint and several bond of indemnity to the obligee, who was the sheriff of Carbon county when it was executed. Its object was to save him harmless in the seizure and sale of certain goods under an execution in his hands. No question was made as to the signing and sealing by the decedent, and that it was delivered by one of the obligors to the sheriff, it is not pretended that there was any actual fraud or false representation upon the faith of which the instrument was executed. It is contended, however, that because the name of one of the co-obligors was affixed by a person who assumed without authority to seal and deliver the bond as his attorney in fact, therefore the decedent was not bound. In the view we take of the case it is entirely immaterial whether the co-obligors were sureties or principals, and we dismiss therefore the 2d assignment of error. All the other assignments depend upon the same question, and may be considered together.

Had the bond not been executed at all in the name of Jonathan Brock, although he was mentioned as one of the obligors in the body of the instrument, it is clear that Loew could not have availed himself of that fact as any defence. Keyser v. Keen, 5 Harris 327, and Grim v. The School Directors, 1 P. F. Smith 219, are authorities directly in point. It was held in those cases that no condition could be implied to the execution by each several obligor that the bond should be executed by all the persons named in it, before it became binding upon any. Being a several as well as a joint bond, it was the several obligation of each as soon as it was unconditionally delivered. If any party executing it meant otherwise it was his business to protect himself by delivering it as an escrow only, as was done in Fertig v. Bucher, 3 Barr 308. If in these eases no condition was implied, fortiori it would seem there can be none here. It is sought to imply a contract by the obligee with each obligor that the signatures of all the others are genuine or affixed by their authority. It was Loew’s interest and duty to satisfy himself on that point, as the means of assuring himself of contribution. Suppose each bond had been a separate instrument. The same right of contribution would have existed. Yet it surely could not be maintained that if one of the bonds for any reason was invalid, all the others would fall. There was no evidence that the obligee, Sheriff Stocker, had anything to do with procuring Loew to join in the bond. He was not even present when it was executed. It was tendered and delivered to him by the attorney of the plaintiff whose writ he was required to execute. There could therefore be no implied affirmation by him that the bond had been duly executed by the others. The able and lucid charge of the learned judge below renders any further elaboration unnecessary.

Judgment affirmed.


text:
    Mack and Person’s Appeal.
    1. A mother to whom two of her children were indebted by notes barred by the statute, for the purpose of equalizing her estate amongst all her children, cancelled the notes and executed to each of the others notes under seal of like amount with interest, with this clause, il the amount thereof, principal and interest, is not due or payable until after my death.” Held, that these were valid obligations.
    2. No consideration was necessary, the seal imported a consideration.
    3. An agreement under seal to make a gift inter vivos may be enforced as a legal obligation.
    4. The notes were not testamentary; revoeability is of the essence of a testament.
    5. A present bond to pay a sum of money at the obligor's death, and delivery renders it perfect as a present obligation and is irrevocable.

      March 30th 1871,
    March 20th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Lehigh county: No. 417, to January Term 1871.
    This case originated in the distribution of the estate of Catharine Lerch, deceased, who died June 7th 1870.
    On the 17th of August 1861, William Person, the husband of her daughter Mary, was indebted to the decedent $219.57, for principal and interest of a note which was then barred by the Statute of Limitations. At the same date, Peter Mack, the husband of her daughter Catharine, was indebted to the decedent $221.91 on two notes in like condition. About the same day, at the suggestion of one of her sons, for the purpose of equalizing these two sons-in-law with her seven other children, she cancelled the indebtedness of Mack and Person, and executed to each of the other seven a note under seal for $206.90 with interest, containing this clause: “ This note or the amount thereof, principal and interest, is not due or payable until after my death.” The notes were given to Peter Lerch, one of the sons, who shortly after-wards delivered them to the respective payees.
    Before the auditor appointed to distribute the estate, there was testimony for the purpose of showing incapacity, undue influence, &c. The auditor, however, found entire capacity, and that the instruments were executed without any unfair means.
    He reported the facts as above stated, and allowed to each of the seven children the principal and interest of the notes, $2194.22 in all; and distributed the remainder, $1218.45, amongst all the children.
    The Orphans’ Court, after exceptions by Mack and Person to the auditor’s report, confirmed it. They appealed to the Supreme Court and assigned the confirmation for error.

      P. Albright, for appellants.
    These instruments are valid, if at all, only as testamentary papers, and they were not such as could have been admitted to probate for want of two witnesses : Turner v. Scott, 1 P. F. Smith 126; Habergham v. Vincent, 2 Vesey, Jr. 204; Frederick’s Appeal, 2 P. F. Smith 338. The notes are to be treated as advancements: High’s Appeal, 9 Harris 283; Levering v. Rittenhouse, 4 Whart. 130; Yundt’s Appeal, 1 Harris 579; Seagrist’s Appeal, 10 Barr 424.

      P. Gf. Schwartz, for appellees,
    cited Yard v. Patton, 1 Harris 282; Delamater’s Estate, 1 Whart. 374; Bowers v. Hurd, 10 Mass. 427; Dennison v. Goehring, 7 Barr 175; Byles on Bills 189 ; Cooke v. Colehan, 2 Str. 1217.
   The opinion of the court was delivered,

by Sharswood, J.

So much as relates to the questions of fact which have been raised in this case may be dismissed with the observation that the findings of the auditor below are fully sustained by the testimony as reported by him. There was no evidence of fraud or mistake in the execution of the notes which were allowed in the account.

Mrs. Lerch perfectly understood what she had done, and although not very good at accounts and figures, was entirely competent to make such an arrangement as she did. It was in all respects a just and reasonable arrangement. Two of her sons-in-law were indebted to her, and her claims against them were barred by the Statute of Limitations. She was anxious to make all her children equal. She might have provided for this by will. But it was equally competent for her to do the same thing by act executed in her lifetime. She cancelled the notes upon which her sons-in-law, Mack and Person, were indebted to her, and executed notes under seal to all her other children severally for similar amounts, payable principal and interest upon her death. That these were valid obligations is very clear. No consideration was necessary. The seal imported it. “ A voluntary bond,” as is said by Chief Justice Gibson, “is both in equity and at law, a gift of the money:” Sherk v. Endress, 3 W. & S. 256. “It is not now to be doubted,” says Mr. Justice Bell, “ that though a parol unexecuted promise to make a gift inter vivos without consideration is void, an agreement under seal to do so may be enforced as a legal obligation:” Yard v. Patton, 1 Harris 285. This being so, these sealed notes can in no sense be regarded as testamentary, for revocability is of the essence of a testament. This is a very different case from that of a grant or conveyance of property by a man in trust or for purposes not to take effect until after his death, such grants being without any consideration moving from the grantee. It is unnecessary to refer particularly to Turner v. Scott, 1 P. F. Smith 126, and Frederick’s Appeal, 2 Id. 338. The first was a conveyance by a father to his son, reserving the land to the grantor during his life, the conveyance in no way to take effect until after his decease; it was held to be a testamentary instrument and therefore revocable. The second was a deed by an old and feeble man to trustees to pay his debts and necessary expenses, support him for life, and after his death, to divide what remained among his children. This was also held to be testamentary and therefore revocable. But the case before us bears no resemblance to these. A man may give a present bond to pay a sum of money at his death, and a delivery of it to the obligee, renders it perfect as a present obligation though payable at a subsequent whether a fixed or an uncertain period to be after-wards ascertained and made certain. It is strictly debitum in presentí solvendum in futuro, and is as irrevocable as any other obligation under seal, which in law imports consideration.

Decree affirmed, and appeal dismissed at the costs of the appellants.


text:
    Rauch versus Scholl and Miller.
    May 8th 1871,
    1. Rauch, owning quarries, agreed with Scholl to take out stone for him; Rauch alleged he was to pay ¡$1.75 per yard and Scholl alleged $2. Evidence of the value of stone unquarried was relevant.
    2. To justify a reversal on the ground that evidence admitted was irrelevant, it should appear clearly that it tended to draw away the minds of the jurors from the point in issue, to excite prejudice or to mislead them.
    March 20th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 179, to July Term 1870.
    Charles W. Rauch, on the 5th of June 1868, brought an action of assumpsit against Henry Miller and William Scholl, and declared in the common counts. The pleas were non assumpsit and set-off.
    The plaintiff owned building-stone quarries, and entered into a contract with John Biglin to furnish stone for the erection of a bridge; the price the plaintiff received for the stone from Biglin was $2.15 per yard. He contracted with the defendants to quarry and deliver the stone from his quarries. He had paid the defendants considerable sums of money from time to time during the progress of the work. He alleged that he had overpaid them, and this suit was brought to recover the overpayment.
    The plaintiff testified that he was to pay the defendants $1.75 per yard. He examined a number of witnesses in support of his case. Miller, one of the defendants, testified that Rauch offered them $1.75 per yard; that they refused to do the work for less than $2; that Rauch told them to go on and he would make it all right; he also testified that they quarried and d&livered coping stone at a higher rate. f

    The defendants proposed to ask one of their witnesses: “ What was the value of stone in the ground in this quarry in 1866 ?” The question was objected to by the plaintiff, admitted by the court, and a bill of exceptions sealed.
    The defendants gave much evidence to sustain their case.
    The jury found for the defendants $376.91. The plaintiff took out a writ of error, and assigned the admission of the offer objected to for error.

      P. J$. Wright, Jr., and Wright, for plaintiff in error.

      L. J. Moore and J. I). Stiles, for defendants in error.
   The opinion of the court was delivered,

by Sharswood, J.

The plaintiff in error, who was the plaintiff below, furnished to John Biglin, the contractor for building a bridge, stone from a quarry owned by him at $2.15 per cubic yard. He made a contract with the defendants to quarry and haul these stones to the bridge, and alleged that he had overpaid them. He testified that they had undertaken to do this work at $1.75 per cubic yard. They alleged, on the other hand, that the contract price was $2 per cubic yard. The defendants were examined, and their testimony certainly sustained their allegation, if it was believed. The only assignment of error is, that the court admitted evidence to show what the value of the stone was in the ground unquarried. This evidence was objected to as irrelevant. If it had any bearing upon the matter in controversy it was admissible. Now, surely if the stone in the quarry was only worth fifteen cents, and its value at the bridge was two dollars more, it went very far to show that the services of the defendants were worth that much to the plaintiff. He argues that he was entitled to the benefit of the contract he had made, and that it would not be just to deprive him of that advantage and transfer it to the defendants, and that this would be the consequence of admitting this evidence. But surely it is not an unfair presumption that he was to receive no more than the market value of the stone under his contract at the bridge, and if in point of fact it was more, it was incumbent on him' to rebut this evidence by showing it. When in a court of errors a judgment is asked to be reversed on the ground merely- of the admission of irrelevant testimony, it ought to appear clearly that such evidence tended to draw away the minds of the jurors from the point in issue, to excite prejudice or to mislead them: 1 Grreenl. on Ev. § 52. We do not see that any such effect could have been produced in this case.

Judgment affirmed.


text:
    Milligan versus Wehinger.
    1. Adjoining landowners agreed not to make any common division fence; each was liable to the other for trespass from his cattle.
    2. Keeping up the partition fence being a common duty, the parties might waive it.
    3. Gregg v. Gregg, 5 P. F. Smith 227, distinguished.
    March 21st 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Pike county, No. 283, to January Term 1871.
    ' This was an action of trespass, brought before a justice of the peace by Frederick Wehinger against John Milligan; there was a judgment in favor of the plaintiff, from which the defendant appealed to the Court of Common Pleas.

      May 8th 1871,
    On the trial, December 22d 1870, before Dreher, P. J., the plaintiff testified that he and the defendant owned adjoining lands :— “I proposed to build a fence; defendant did not want to build and was not going to turn any cattle in, nor I, and we agreed not to put up any division fence; I put no cattle on mine.” He then testified that the defendant’s colts got on to his corn and oats and did him injury, to the value of $60. The defendant gave evidence in answer to the plaintiff’s case.
    The court charged: * * * “ That if adjoining owners agree to occupy and use their respective lands without a division fence, they are each bound so to occupy and use their respective properties that the one shall not injure the crops of the other. If you believe there was such an arrangement between these parties, then we charge you- that the plaintiff may recover in this suit whatever damage he may have suffered in his crops by the trespasses of defendant’s colts, and this would be the case if nothing was said about the defendant’s not turning his colts out, if the parties agreed to each occupy and use his own land without a division fence.”
    The verdict was for the plaintiff for $40.
    The defendant took out a writ of error and assigned the charge for error.

      W- 3. Jessup, for plaintiff in error,
    cited: Gregg v. Gregg, 5 P. F. Smith 227.

      8. 3- Pimmiak, for defendant in error.
   The opinion of the court was delivered,

by Agnew, J.

Owing to the legislation in this state in relation to fences, it has been held that an owner of improved land, who leaves it without a fence, cannot recover for the inadvertent trespass of a neighbor’s cattle: ■ Gregg v. Gregg, 5 P. F. Smith 227. But this rule, which flows solely from the breach of a statute duty, is not applicable to a case like this, where the duty to fence was not only common to both parties, but was waived by mutual consent. This is the case of adjoining improved lands governed by the Act of 11th March 1842, Pamph. L. 62, where each owner, if he would escape the burthen of fencing his whole land within his line, must pay for the one-half of the cost of a partition-fence, the expense of which is to be assessed by the township auditors. The keeping up of the partition-fence being a common duty, it was in the power of both to waive it; and they would clearly be liable to each other for trespasses upon each other’s fields. After an agreement not to fence between themselves, it does not lie in the mouth of either party to set up the statute duty to fence under the Act of 1700 as a bar to a recovery for the trespasses of his cattle. Having waived the duty on part of his neighbor in consideration of his neighbor’s waiver of his duty, he is estopped from denying his own duty of keeping up his cattle. Gregg v. Gregg was not a case between the owners of adjoining improved lands, and is therefore no authority for this case.

The judgment must therefore be affirmed.


text:
    Fulmer versus Seitz et al.

    1. F. agreed to lend §4000 to S. at 12 per cent, interest, S. paying $240 in advance. S. delivered to F. a note signed by himself and others as his sureties. Afterwards F., discovering that nothing appeared in the note about interest, told S., who directed F. to insert that it was with interest. F. did so in S.'s presence. This avoided the note as to the sureties.
    2. F. sued for the note, principal and interest. Held, that the refusal to allow him at the trial to strike out the addition as to interest was proper.
    3. One who makes a voluntary and unauthorized alteration in an instrument and insists upon it by going to trial on it, has no locuspeenitentice, by which on his failure to establish his right to recover, he can undo the wrong.
    4. Neffu. Horner, 13 P. F. Smith 327, approved; Kountz v. Kennedy, Id. 187, decided doubtingly, distinguished.
    March 21st 1871. Before Thompson, C. J., Bead, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northampton cownty: No. 399 to January Term 1871.
    Henry Fulmer, in the court below, brought an action of assumpsit against George Seitz, Henry A. Sage, John A. Seitz and George H. Bender. The writ was issued March 27th 1869.
    The 1st count of the declaration was for $4000 money had and received: 2d. $4000 money lent and advanced: 3d. On a note of defendants for $4000, payable one year after date to the order of the plaintiff: 4th. For $4000 money lent and advanced by the plaintiff to George Seitz, at the special instance and request of the defendants.
    The case was tried, January 27th 1871, before Longaker, P. J. The plaintiff gave evidence that George Seitz had called on a broker to procure a loan of $4000 for him, he was to give the other defendants on the note with him; he offered to pay 12 per cent, interest. The plaintiff, Fulmer, told the broker that George Seitz could have the loan. The broker had no communication with the other defendants.
    The plaintiff testified that the broker had called on him for the loan; he then saw George Seitz; plaintiff gave his note, which was discounted and $4000 realized from it; two or three weeks after-wards, George Seitz paid the plaintiff $240 bonus, and received the note in suit. About two months after the note was signed, he told George Seitz that the note was “ a non-interest bearing note, and he said you just add the words ‘Int. payable, semiannually,’ and that it would all be right. I did so in his presence.” George Seitz had parted with the note previously to its becoming due. After it was due, the plaintiff met with the other three signers to arrange the note; a calculation was made, which Sage, in the presence of the other two, said was correct; each of the parties agreed to pay one-third. John Seitz offered to give his father’s check for his third; the father was there with the check ; Sage and Bender were to give their joint note for their two shares; the interest was calculated and added in. “ We were about passing the notes when I handed the original note to Bender; he said it was not worth anything, and I should bring suit: this ended the conference.” On cross-examination, he said, “ Bender asked me to let him see the note: he asked who put ‘ Int. payable semi-annually’ there ? I said I had: that was the time Bender said the note was not worth anything. All the other conversation had taken place before the note was produced.”
    The plaintiff was asked to state what George Seitz said when he brought the note, as to the capacity in which he borrowed the money, and for whose use. This was objected to by the defendant, except as to George Seitz. The objection was sustained and a bill of exceptions sealed.
    John A. Seitz was called by plaintiff as for cross-examination. In the course of the examination he was asked :
    “ Did you not understand at the time the money was loaned that it was to bear interest ?” This was objected to by the defendants, the objection sustained, and a bill of plaintiff’s exception sealed. Witness said: “ George Seitz did not tell me we were to pay interest on that note.”
    His testimony did not materially differ from the plaintiff’s as to the conversation when they met to arrange about the note. He also said that at the time of the conversation before the note was produced they did not know that it had been altered. Neither Sage nor Bender agreed to pay after the alteration had been discovered.
    George Seitz testified that he had borrowed the money for himself, and the others were his sureties.
    The plaintiff then offered the note in evidence as follows: — ■
    “$4000. Easton, February 11th 1868.
    “ One year after date we or either of us promise to pay to the order of Henry Fulmer four thousand dollars without defalcation for value received. ’ Int. payable semi-annually.
    “ George Seitz,
    “ Henry A. Sage,
    “ John A. Seitz,
    “ Geo. H. Bender.”

      The offer was objected to by defendants, rejected by the court, and a bill 'of exceptions sealed.
    The plaintiff then asked the leave of the court to strike out of the note the words “ Int. payable semi-annually,” and the same words from the narr., on the ground that there was no fraud upon the part of the plaintiff, to which the defendants objected, and the objection was sustained by the court, and a bill of exceptions sealed.
    The plaintiff then offered to prove by himself that at the time he received the note he did not observe that it was payable without interest, and that he only discovered it about two months after he had received it; this was objected to by the defendants, the objection was sustained by the court, and a bill of exceptions sealed.
    Both parties submitted points, found in the assignments of error.
    The court charged : “ In the absence of testimony showing the defendants were original promissors, there can be no recovery had in this case, and your verdict must be for the defendants.”
    The verdict was for the defendants. The plaintiff took a writ of error, and assigned for error :—
    1. “Not permitting the plaintiff to prove the declarations made by George Seitz when he obtained the loan, in what capacity he borrowed the money.”
    2. “ Refusing to permit the plaintiff to ask John A. Seitz the following question, viz.: ‘ Did you not understand at the time the money was loaned, that it was to bear interest ?’ ”
    3. “ Refusing to permit the plaintiff to give the note sued upon in evidence.”
    4. “Refusing to permit the plaintiff to strike from the note sued upon and from the narr. the following words, ‘ Int. payable semi-annually.’ ”

    6. “ Giving a negative answer to the plaintiff’s 1st point, which was as follows:
    “ ‘ That if the jury believe that before the time or at the time the money was loaned, the defendants agreed to be responsible for its payment, the plaintiff is entitled to recover.’ ”
    7. “ Giving a negative answer to the plaintiff’s 2d point, which was as follows:
    “ ‘ That if the jury believe that before the time or at the time the money was loaned by the plaintiff, the defendants agreed to be responsible for its payment, the plaintiff is entitled to recover the balance of the money loaned, after deducting the amount received by the plaintiff in part payment under the counts in the narr. for money had and received, and money lent and advanced.’ ”
    8. “Answering affirmatively the defendants’ point, which was as follows:

      “ ‘ There is no evidence in the cause that will authorize a recovery on the counts of the narr. for money had and received, and for money lent and advanced, and therefore the verdict must he for the defendants.’ ”

      0. B. Meyers and P. J. Pox, for plaintiff in error.
    An alteration, leaving the effect of the instrument as it was before, is not material: Miller v. Gilleland, 7 Harris 122. “ Int. payable semiannually” does not necessarily imply interest, payable from the date of the note: 2 Phillips’s Ev. 429; Edwards on Bills 708, 712, 718; Byles on Bills 227; Addison on Contracts 1154; 2 Parsons on Contracts 14; Potter v. Gardner, 5 Peters 718; Doman v. Dibden, Ryan & Moody 381; Richards v. Richards, 2 Barn. & Ad. 446; Roffey v. Greenwell, 10 Ad. & Ellis 222; Powell v. Guy, 3 Dev. & Batt. 70; Kilgrove v. Powers, 5 Blatchford 22; Billingsby v. Cahoon, 7 Ind. 184; Cooley v. Rose, 3 Mass. 221; Kennerly v. Nash, 1 Stark. R. 453. The alteration being in accordance with the original agreement of the parties, their consent might reasonably be implied thereto, and such an alteration would not make the note void: 2 Parsons on Notes 570; Clute & Bailey v. Small, 17 Wend. 238; Boyd v. Brotherson, 10 Id. 93; Jacob v. Hood, 6 Maule & Selw. 142; Chitty on Bills 206-209; Kershaw v. Cox, 3 Esp. 246; Brutt v. Picard, Ry. & Moo. 37; Arnold v. Stedman, 9 Wright 189; Kountz v. Kennedy, 13 P. F. Smith 187.

      B. Q-reen (with whom was W. W. Schuyler), for defendants in error.
    The alteration of an instrument avoids it, without regard to the motive: Marshall v. Gougler, 10 S. & R. 164; Beary v. Haines, 4 Whart. 20; Henning v. Werkheiser, 8 Barr 518. The onus of showing a lawful alteration is on the holder: Simpson v. Stackhouse, 9 Barr 186; Kennedy v. Lancaster Co. Bank, 6 Harris 347; Miller v. Gilleland, 7 Id. 119; Paine v. Edsell, Id. 178; Southwark Bank v. Gross, 11 Casey 80; Hill v. Cooley, 10 Wright 259; Neff v. Horner, 13 P. F. Smith 327; Warrington v. Early, 2 Ell. & Black. 763; Dewey v. Reed, 40 Barb. 16; Woodworth v. Bank, 19 Johns. 391; Sutton v. Toomer, 7 B. & C. 461; 2 Pars. on Bills 549. Unless expressed otherwise in the note, interest commences from maturity: Kennerly v. Nash, 1 Stark. 452; 2 Pars. on Bills 392; Daggett v. Pratt, 15 Mass. 177 ; Ludwick v. Huntzinger, 5 W. & S. 51; Warrington v. Early, supra; Miller v. Gilleland, supra. It is immaterial what kind of understanding the defendants may have had as to what their contract was. The only question is what was the contract: Kennedy v. Lancaster Co. Bank, supra; Perring v. Hone, 4 Bingh. 28; Clute v. Small, 17 Wend. 238. The change having been made without the consent of the sureties, they are discharged: Theob. on Principal and Surety, §§ 152-166; Hibbs v. Rue, 4 Barr 350; Uhler v. Applegate, 2 Casey 140. As to the refusal to strike out the altered words: Neff v. Horner, supra.

    May 8th 1871,
   The opinion of the court was delivered,

by Agnew, J.

The first error assigned embraces the subject of three bills of exception, and is not assigned according to rule. We may remark, however, that the court did not refuse to hear the declarations of George Seitz, the principal on the note, as against himself, but only as to his co-defendants. Clearly, there was no error in this, as they could not be affected by his declarations without showing a partnership relation, of which there was no proof. The impropriety of receiving these declarations against the other defendants is shown by the very testimony itself of George Seitz, given by the plaintiff afterwards, in which the fact offered to be proved by his declarations is explicitly contradicted. The second assignment of error is liable to the same objection. The question was general, and if answered as put, would have affected the co-defendants; while the witness was permitted to state that George Seitz did not tell him they were to pay interest on the note. The evidence is clear that George Seitz was the principal, and the other defendants sureties, and that the sureties were not actors, the whole transaction being between the plaintiff and George Seitz; the others merely signing the note to secure repayment of the loan. There is no evidence that they were parties to the making of the loan, or participated in the slightest degree, until they signed the note. The transaction depends wholly on the note as it regards them. They could not be affected, therefore, by the understanding of the plaintiff with George Seitz, or even with John A. Seitz, one of their number.

The third and fourth assignments involve the principal question in the cause. According to the plaintiff’s testimony, about two months after the note in suit was delivered to him, George Seitz came to his house. He mentioned to Seitz that the note was non-interest bearing, and Seitz said, “You just add the words ‘Int., payable semi-annually,’ and it will be all right.” He did so, in Seitz’s presence. He also states that the agreement between him and Seitz, at the time of making the loan, was, that Seitz should pay him 12 per cent, interest, and that in two or three weeks after the note was given, Seitz handed him $240, the bonus part of the interest or six per cent, on $4000, the principal of the loan. The alteration of the note by the addition of interest was a conceded voluntary act on part of the plaintiff, though not fraudulent or wrongful as to George Seitz, the principal, and the question is, whether this act avoided the note as to, the sureties. The case is, we think, ruled by Neff v. Horner, 1.3 B. F., Smith 327, which is in turn supported by the additional authorities cited by the defendants in error in this case. There is no difference between this case and that, excepting that, if anything, this is stronger against the plaintiff than that. There, the alteration was made by the principal defendant himself, stating, at the same time, that he was authorized to make the alteration by the defendants; while here, the alteration was made by the plaintiff himself, and the principal defendant merely said it would be right, but did not say he was authorized to have it done. The grounds for the decision in Neff v. Horner are stated in the opinion, and need not be repeated here. But it is supposed that the case of Kountz v. Kennedy, 13 P. F. Smith 187, is opposed to this view, and it is cited as authority against it. That case is a very close one, and was decided doubtingly on its peculiar circumstances. One of our number expressly dissented, and I gave my own assent with hesitation. The case differs from Neff v. Horner and this case in several material respects. There, the plaintiff did not sue for or claim the interest under the alteration. Here, and in Neff v. Horner, he did. In Kountz v. Kennedy, the evidence showed that the alteration was evidently the result of a misapprehension, and as soon as the plaintiff discovered that the endorser had not authorized it, he had it taken out so as not to deface the note. As between him and Hunt, the drawer of the note, there was no difference of understanding, the latter having agreed to pay interest, and the note being altered to that effect by his clerk, when the plaintiff discovered that it did not correspond with their understanding. The plaintiff never made any claim of interest against the endorser, and had acted without a suspicion even of intended fraud. It was therefore held that the endorser was not affected by anything which had been done, the alteration being innocent and the correction being made immediately, as soon as it was discovered that he had not assented to the change. In the present case the parties to the note were all drawers, and stood in the .same precise relation to it, so that the alteration as to the principal was an alteration of the direct contract to pay the note of each and every one who signed it; and on this 'contract the plaintiff brought his suit and insisted on his right to recover interest against all. Failing to show his right to recover against them, because of his failure to prove their assent to the alteration, he fell directly within the rule of policy which forbids the recovery of anything upon the altered instrument. These reasons furnish an answer also to the alleged error in refusing the plaintiff permission to strike out of the note and out of the narr. the added words, “Int., payable semi-annually.” One who makes a voluntary and unauthorized alteration of a written contract, and insists upon it by going to trial to recover upon the altered •state of the instrument, has no locus poenitentics, which, on his .failure to establish his right to recover, will enable him to undo the wrong at the trial, and to stand as one who has wade an innocent mistake, and never has insisted upon his right to enforce it.

The sixth, seventh and eighth errors may be considered together. There is no evidence that the loan itself was made to all the drawers of the note directly either as principals or sureties, or that any undertaking was assumed by the sureties, other than the promise contained in the note itself. Nor did they receive any of the money lent by the plaintiff. Their liability arose, therefore, wholly upon the note, and not upon any express or implied promise, outside of it, to repay the money lent. It is evident, therefore, there was no ground upon which the court could submit to the jury the right of the plaintiff to recover jointly from all of the defendants the money lent, independently of the instrument by which the sureties bound themselves to pay it, and on that, as an altered writing, we have seen there can be no recovery. Upon the whole case we discover no error, and the judgment is therefore

Affirmed.


text:
    Eilbert versus Finkbeiner.
    1. When one puts his name on the back of negotiable paper before the payee has endorsed, he means to pledge his responsibility for its payment.
    2. Such endorser, in absence of a different contract, assumes the position of a second endorser, and to make him liable to any holder the implied condition that the payee shall endorse before him must be complied with to give him recourse against the payee.
    3. A memorandum in writing signed by the second endorser is admissible to show that the agreement on which the endorsement was made, was a guaranty that the note should be paid to the payee, and not that the payee should stand between the endorser and ultimate liability.
    4. The contents of a letter mailed by a party cannot be given in evidence without notice to produce the letter.
    5. A case was heard before arbitrators. On the trial in court after the death of the defendant, the plaintiff was an incompetent witness.
    March 21st 1871. Before Thompson, C. J., Bead, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northampton county: No. 405 to January Terrqi 1871.
    This was an action of assumpsit commenced, November 4th 1868, by Gottlieb Eilbert against Michael Finkbeiner on the following note:—
    “$100. “Philadelphia, July 19th 1867.
    “ Six months after date I promise to pay to the order of Gottlieb Eilbert one hundred dollars, value received, with eight per cent, interest. Henry Finkbeiner,
    No. 1340 Girard Ave. Phila. Pa.” (Endorsed) Michael Finkbeiner.

      The plaintiff declared on the common counts.
    Also that Henry Einkbeiner drew the note, and that it was endorsed by defendant in consideration of a loan of $100 to Henry as therein specified and he guarantied to Eilbert its payment according to its tenor and effect.
    Also, in consideration that Eilbert would lend to Henry on the note of Henry then made and endorsed by defendant, the defendant would guaranty the payment of the note to the plaintiff according to its tenor and effect.
    . Also, for money lent to Henry by the plaintiff, with the advice and at the instance of the defendant, Henry delivered the note, endorsed and guarantied by the defendant; but neither paid the note and it was protested, &c.
    Also, the note being protested, after notice to the defendant, he, by his “promise, guaranty and undertaking in writing, upon himself did assume, on consideration that the plaintiff would forbear until the 1st of April 1868, to pay the note.”
    Also, the note being dishonored, &c., by the defendant, he, after the dishonor, did promise in writing to pay the note after bringing suit.
    Also, in consideration that the plaintiff would forbear bringing suit, the defendant promised in writing to pay the note, and the plaintiff did forbear to bring suit.
    Also, that the defendant made his memorandum and.note in writing “ signed by him,” by which he promises to answer for the debt and default of Henry and to pay the note.
    A rule of reference was taken out. The arbitrators found for the plaintiff $114.28. The defendant appealed and pleaded non assumpsit. He afterwards died, and John Einkbeiner, as administrator, was substituted.
    On the trial, January 26th 1871, the plaintiff made the following offers of evidence, all of which were rejected and several bills of exception sealed.
    1. The note.
    2. Letter dated January 30th 1868 from defendant to plaintiff, viz. :—
    “Mr. Gottlieb Eilber: These lines are to inform you that I have just received a notice from Julius Wolff concerning those hundred dollars which my son Henry borrowed from you on 19 1867. Don’t be afraid about it; the money is safe; if Henry does not pay I shall pay it. I only pray you not to cause any costs. Please answer immediately.”
    3. Letter. Same to Same, March 20th 1868:—
    “ I have just received your letter of the 13th of this month. The second letter from your notary I did not receive. I pray you not to cause any further costs. I can and will pay you the money honestly. I thought it was paid, because I received no answer for such a long while. To-morrow I would have gone to Philadelphia, hut circumstances do not permit, &c. * * * I am going to write to Henry immediately, and if he does not pay you the money until the 1st of April, please write to me immediately. I shall then immediately make settlement, &c., and if not, I shall send you the money by express. * * * I pray you, again, don’t cause any further costs. If Henry does not, I shall settle everything. Henry never wrote to me anything about the money, and I thought everything was settled until I received a notice from your notary, whereupon I wrote to you immediately, and since that time I have heard nothing until to-day.”
    4. Same to Same, April 5th 1868:—
    “ The letter from Notary J. Wolff, of the 24th of March last, I have received on the 27th, and I would have answered him immediately, because the letter informed me that I must pay the money. But not having the money together, and money being very scarce in the country, in April time, I could not appoint a certain time until yesterday, Saturday, April 4th; the money was promised to me until the 10th of this month, and until the 11th and 13th of this month I shall send this money or bring it myself, and you may rest assured of it. I pray you only not to cause any further costs.
    “ Be so kind to let Henry know that I shall pay the money and take up the note until the 11th or 13th; maybe that he has something to pay on it.”
    5. Same to Same, April 10th 1868:—
    “ I notify you by these lines that last evening I got that money together for you; hundred dollars. I believe this is the amount of the note; and this morning I intended to start for Philadelphia to pay you the money, but I was prevented by the snow storm, and would have to travel twelve miles to Easton with horse and wagon, only on account of such a bad speculation. I therefore hasten to inform you that the money is here ready for you. Now I have thought how to arrange it so that you may get the money and I may get the note; therefore, on receipt of this letter, please go to Henry and read it to him. I hope he will at least pay the interest, or perhaps something more, and then send the note to Easton by express, and let me know it immediately by letter. I shall then go to Easton and pay. the note, because I have resolved not to pay the note until I see my name before my eyes.”
    6. To prove by Julius Wolff, the notary, that after he had received the note from plaintiff for protest, he gave notice to defendant, who called upon witness in Philadelphia, and desired that he should send the note to Easton by express, which was done, and that plaintiff, after receiving some of the letters from defendant, desired Wolff to forbear from making costs; and that witness wrote defendant a letter, stating the assent of plaintiff to the propositions contained in the letters of defendant.
    7. To prove by plaintiff, as a witness, that the letters were received from the mail in Philadelphia, addressed to him.
    8. To prove by Julius Wolff, that defendant, subsequently to the writing of the letters, called on witness in Philadelphia, and offered to pay Mr. Wolff, as the agent of plaintiff, the note in suit, in pursuance of his written undertaking, set forth in the letter; and also that defendant before arbitrators, admitted his liability to pay the note, pursuant to his written undertaking.
    The court directed a verdict for the defendant.
    The jury found for the defendant, and the plaintiff took out a writ of error.
    He assigned for error the rejection of his offers of evidence and the charge of the court.

      JR. I. Jones (with whom was IT. Gf-. Bartranft), for plaintiff in error.
    It is not material that the party who makes the promise in consideration of forbearance should have a direct interest in the suit to be forborne or be directly benefited by the delay: 1 Parsons on Contracts 443; Shively v. Black, 9 Wright 347; Jones v. Ashburnham, 4 East 455; Wade v. Simeon, 2 M., G. & S. 343; Hume v. Hinton, Style 305; s. c. T. Ray. 32: Giles v. Ackles, 9 Barr 147; Silvis v. Ely, 3 W. & S. 428; Kean v. McKinsey, 2 Barr 31. The note was sent to Easton at defendant’s request; this was sufficient: Train v. Gold, 5 Pick. (Mass.) R. 384; Stewart v. McGuire, 1 Cow. 99. Granting that some evidence tended to show that defendant supposed he was liable, it was for the jury to find for whom he requested forbearance: McKean v. Wagonblast, 2 Grant 466; Reynolds v. Richards, 2 Harris 208; Watson v. Blaine, 12 S. & R. 136; Overton v. Tracey, 14 S. & R. 330; Beatty v. The Lycoming Fire Insurance Co., 2 P. F. Smith 456; Smith v. Thompson, 8 M., G. & S. 44. An acceptance is complete as soon as the letter accepting leaves the office or is beyond the reach of the writer: Taylor v. The Merchants’ Fire Insurance Co., 9 How. 390 ; Dunlap v. Higgins, 1 H. of L. Cas. 381; Tanner v. Hughes, 3 P. F. Smith 290; Jones v. Lewis, 8 W. & S. 14.

      F. J. Fox, for defendant in error.
    Michael Einkbeiner was an irregular endorser and not liable: Schafer v. The Bank, 9 P. F. Smith 144. The construction of written instruments is for the court: Welsh v. Dusar, 3 Binn. 337; Denison v. Wertz, 7 S. & R. 376. It is error to leave to the jury the construction of writings: Roth v. Miller, 15 S. & R. 100; Reaney v. Culbertson, 9 Harris 507; Miller v. Fichthorn, 7 Casey 252. There being no legal liability on the part of Michael Einkbeiner, the forbearanee to sue him was not a sufficient consideration for a promise: 1 Parsons on Contracts 366; Hamaker v. Eberley, 2 Binn. 509. The verbal promise by Michael Finkbeiner in Philadelphia to pay, and the admission before the arbitrators that he was liable, being without consideration was a nudum factum, and void, because not in writing: Parker v. Carter, 4 Mumford 273; Bixler v. Ream, 3 Penna. R. 285; Snevily v. Read, 9 Watts 396; Logan v. Matthews, 6 Barr 417.
    March 30th 1871,
   The opinion of the court was delivered,

by Sharswood, J.

Nobody ever doubted that when a man puts his name on the back of negotiable paper before the payee has endorsed it, he means to pledge, in some shape, his responsibility for the payment of it: Kyner v. Shower, 1 Harris 446. This court finally settled that in the absence of legal evidence of any different contract, he assumes the position of a second endorser; and that to render his engagement binding as to any holder of the note the implied condition that the payee shall endorse'before him must be complied with so as to give him recourse against such payee: Schafer v. The Farmers’ and Mechanics’ Bank, 9 P. F. Smith 144. Prior to January 1st 1856, when the Act of April 26th 1855, Pamph. L. 308, went into effect, it could have been shown by parol evidence that the intention of the irregular endorser was to guarantee the payment of the note to the payee: Leech v. Hill, 4 Watts 448 ; Taylor v. McCune, 1 Jones 460. The Act of 1855, by providing that no action shall be brought “ whereby to charge the defendant upon any special promise to answer for the debt or default of another, unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person by him authorized,” made parol evidence of such a guaranty unlawful: Jack v. Morrison, 12 Wright 113. But surely under the statute a memorandum in writing signed by the party is admissible to show that the agree- • ment upon which the endorsement was made was a guaranty that the note should be paid to the'payee; and not that the payee should stand between the endorser and ultimate responsibility. Now the letters which were offered in evidence and rejected by the court were clearly of this character. They were addressed to Eilbert the payee, and acknowledged the writer’s liability to him on the loan which he had made to his son Henry, the maker of the note, on July 19th 1867, which is its date; so that the identity of the transaction referred to with the note in suit is beyond all doubt. He promises to pay if Henry does not. Had these letters been addressed to a subsequent holder, it might have been supposed that the acknowledgment of liability was a mistake in law, since without Eilbert’s endorsement he would not be liable to such subsequent holder. But the acknowledgment here being to Eilbert, the payee, there could have been no mistake. He admits a liability to Eilbert, the payee, himself, which is entirely inconsistent with the notion that he had put his name on the back of the note upon condition that Eilbert should take the position of first endorser. Moreover these letters contain a promise to pay upon the consideration of forbearance — not to cause any further costs; and as an independent original contract would have been admissible under the special declaration, and would have entitled the plaintiff to a verdict unless some defence were made out.

There is nothing in the 2d assignment of error. The plaintiff could not give evidence of the contents of a letter mailed by him to the defendant, without having first given him notice to produce it. As to the 3d error assigned; the plaintiff was clearly an incompetent witness against the administrator defendant; nor was the evidence at all material, for surely the possession and production by the plaintiff of the letters was quite enough to show that they had been received. The offers referred to in the 4th and 5th assignments were of parol evidence to prove what was clearly a promise to pay the debt of another, and therefore inadmissible under the Act of 1855.

Judgment reversed, and venire facias de novo awarded.


text:
    Richards versus Rote.
    1. In proceedings in partition in the Orphans’ Court, in order to divest the interest of any person, it is necessary that such person should be named in the petition, decree and notices.
    2. The 2d section of Act of April 14th 1835, makes this necessary to invest the court with jurisdiction over the person and his interest in the land.
    3. When in proceedings in partition in the Orphans’ Court the name of a party in interest does not appear in the petition, decree and notices, unless it appear by affidavit that his name was unknown and publication made accordingly, his share or estate will remain undivided or undivested unless by some subsequent act of such party it has been ratified.
    4. When the name does appear, it will be conclusively presumed that due notice has been given, even though not affirmatively shown in the record.
    5. In’ proceedings in the Orphans’ Court, although it appear that a party is incompetent to manage his affairs, that court has no jurisdiction to appoint a trustee for him in the estate proceeded in.
    6. The Orphans’ Court appointed a trustee for a party of “ weak intellect the notices, &c., in partition were served on the trustee for the party. An Act of Assembly was passed to validate the proceedings. Held, that the act was void.
    7. When property has been attempted to be taken by a judicial proceeding which is void for want of jurisdiction, the legislature cannot validate it.
    8. A law for that purpose would be essentially a judicial act.

      March 30th 1871. Before Thompson, 0. J., Read and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of GUnton county: Of January Term 1871.
    This was an action of ejectment by Griffin Rote against Lewis Richards: the writ issued April 18th 1870.
    Casper Richards, the father of the plaintiff, died in November 1832, having made his will, in which was the following provision : “ And whereas, my son Lewis Richards is incapable of managing property for himself, I will that he shall be paid one thousand dollars, which shall remain in the hands of my sons William and Daniel during his natural life, and that he be paid the interest of that sum each and every year after my decease by my sons William and Daniel, the interest and principal to be paid by them in the same proportion each as the payments before mentioned.”
    William Richards (above named) died, July 20th 1850, intestate, unmarried and without issue, seised of the tract of land in dispute, and leaving to survive him four brothers, Lewis the defendant, Daniel, Joseph and James.
    At February term 1852, Daniel Richards, a brother and the surviving trustee, petitioned the Orphans’ Court, setting forth the foregoing clause in the father’s will, the death of William, that Lewis would be entitled to one-fourth of William’s estate, real and personal; that no one had been appointed trustee of the fund devised to the said Lewis Richards by his said father to supply the vacancy occasioned by the death of the said William Richards, nor to take charge of his interest in the estate of the said William Richards, deceased: and praying the court to appoint a trustee for that purpose.
    Upon this petition the court made the following order: “ February 18th 1852, the within petition being read, the court appoint Saul McCormick trustee of the estate of Lewis Richards, agreeably to the prayer of the petitioner.”
    Saul McCormick and Daniel Richards having died, Samuel Richards, administrator, &c., of William Richards, May 11th 1857, petitioned the court, setting forth the facts in the petition of Daniel; the death of Daniel and McCormick, and praying the court to appoint a trustee in the place of McCormick. Griffin Rote, the plaintiff, was appointed trustee.
    On the 18th of December 1857, Samuel Richards having become the owner of all the interests in the land in dispute, except that of Lewis, petitioned in the Orphans’ Court for an inquest for partition of the estate of William Richards, deceased, setting out amongst other things, that “ Lewis, on account of the weakness of his intellect, is under charge of the Orphans’ Court of this county, the said court having appointed Griffin Rote as a trustee to take charge of the estate of the said Lewis Richards,” &c.

      On the same day, “ Inquisition awarded, returnable first day of next term, twenty days’ notice to be given -to Griffin Rote, trustee, &c.” Appended to the sheriff’s return was the following: “I hereby acknowledge to have received from the sheriff due and legal notice of the meeting of the jury of inquest to be held in pursuance of the within order, &c. * * * Griffin Rode,
    Trustee of Lewis Richards.”
    •The inquest returned that the estate could not be divided, and valued it at $9813.12. The inquisition was confirmed, June 18th 1858, and rule upon heirs awarded. To this rule’the sheriff returned as follows: “February 25th 1858. Served the within rule on Samuel Richards by reading the same in his hearing. •March 1st 1858. Served on G. Rote, committee of Lewis Richards, by reading the same in his hearing.
    So ans. Thos. McGhee, Shff.”
    On the 18th of September 1858, Samuel Richards elected to take the estate at the valuation, and it was on that day adjudged' ■to him. On the 21st of March 1864, Samuel Richards conveyed to the plaintiff. On the 6th of April 1870, this Act of Assembly (Pamphlet Laws 960) waspassed :—
    “An Act to validate certain proceedings in partition.
    “ Whereas, Proceedings in partition of the real estate of William Richards were had in the Orphans’ Court of Clinton county between Samuel Richards and Lewis Richards, upon the petition of the said Samuel Richards, the writ, notice and rules in which were served upon Griffin Rote, a trustee of the estate of Lewis Richards, appointed by the said Orphans’ Court, therefore:
    “ Sect. 1. Be it enacted, &c., That the said proceedings in partition and the title of the said Samuel Richards, his heirs and ■ assigns 'thereunder, shall be valid, to all intents and purposes, as if regular in all respects, and the writs, rules and notices had •been served personally upon Lewis Richards or some person legally qualified.”
    After giving in evidence the foregoing matters, the plaintiff closed his ease. The defendant demurred to the evidence and requested the court to'instruét the jury to find a verdict for the defendant, on the ground that the proceedings in partition, so far as it concerned the-interest of Lewis Richards in the-real estate of William Richards, were void and were not cured'by the Act of Assembly, as it'was unconstitutional. The court (Williams, J., of 4th district) declined to pass upon the question of the constitu- • tionality of the Act of- Assembly, considering -that it was the province of the Supreme Court‘to determine that question, overruled the demurrer arid directed the jury to Pender a verdict for the plaintiff. The verdict was for the plaintiff, and the defendant ‘ sued out a writ of -error, assigning for error the overruling his demurrer and directing a verdict for the plaintiff.

      May 18th 1871,

      J. Chatham (with whom was C. S. MoCormielc), for plaintiff in error.
    The judgment of any court can be binding only when it appears that the person or property over which it assumes control was within its jurisdiction: The Mary, 9 Cranch 126; Ragan’s Estate, 7 Watts 438; Ege v. Sidle, 3 Barr 115; McKee v. McKee, 2 Harris 231; McNeal v. Holbrook, 1 Casey 189; Delaney v. Gault, 6 Id. 63; Kennedy v. Wachsmuth, 12 S. & R. 171; Dicks v. Hatch, 10 Iowa 380 ; State v. Culler, 18 Md. 418; McMinn v. Whelan, 27 Cal. 300; Evans v. Ashby, 22 Ind. 15; Torrance v. Torrance, 3 P. F. Smith 510; Act of March 29th 1832, § 2, Pamph. L. 190, Purd. 764, pl. 4.
    The Act of April 6th 1870 is in violation of the 8th section of the 11th Article of the Constitution, Amendment of 1864, in that the title of the act does not clearly express the subject contained in it: Walker v. Caldwell, 4 L. Ann. R. 298; People v. Mahaney, 13 Mich. 494; Sun Mutual Insurance Co. v. Mayor, &c., of New York, 8 N. Y. 253; State v. County Judge, 2 Iowa 282; Blood v. Mercelliott, 3 P. F. Smith 395; Brewster v. City of Syracuse, 19 N. Y. 116.
    The act is in violation of the Bill of Rights, which declares that no man can be deprived of his property unless by the judgment of his peers and the law of the land, and that all courts shall he open, and every man, for an injury done him in his lands or goods, shall have remedy by the due course of law, and right and justice administered without sale, denial or delay: Brown v. Hummel, 6 Barr 86; Ervine’s Appeal, 4 Harris 257; Grenawalt’s Appeal, I Wright 99; Cooley on the Constitution 107; Newland v. Marsh, 11 Ill. 382; Norman v. Hiest, 5 W. & S. 171; Menges v. Dentler, 9 Casey 495; Grim v. Weissenburg School District, 7 P. F. Smith 437; Baggs’s Appeal, 7 Wright 512; Burns v. Clarion County, 12 P. F. Smith 425; Alter’s Estate, 17 Id. 341; Denny v. Mattoon, 2 Allen 361; McDaniell v. Correll, 19 Ill. 226.
    - Oorss (with whom was C- W. Seeker), for defendant in error.
    The want of a guardian does not render the proceedings void if it appears that the infant was represented in fact at the time of the valuation: Elliott v. Elliott, 5 Binn. 1.
    It is not necessary to establish lunacy by inquisition of lunacy. If done in any way to satisfy the court it is sufficient. Inquisition of lunacy is only persuasive evidence: Tazier v. Saturlee, 3 Grant’s Cases 162; Rex v. Rex, 3 S. & R. 533; Taggart v. McGinn, 2 Harris 157; Lycoming v. Union, 3 Id. 166.
   The opinion of the court was delivered,

by

Sharswood, J.

However it may have been before April 14th 1835, the 2d section of the Act of Assembly of that date, Pamph. L. 275, made it essential in order to divest the interest of a child or other person, by proceedings in partition in the Orphans’ Court, that each child or person should be named in the petition, decree and notices. It provides that “in the proceedings for the partition and valuation of an intestate’s real estate, the parties in interest shall be named in the petition, decree and notices when known, but if it shall appear on oath or affirmation that the names or residences of any of the parties are unknown to the applicant for the partition, the Orphans’ Court shall have power to direct such notices to be given to such parties, by publication in public newspapers, describing the parties as far as practicable, as shall appear to the court to be reasonable and proper; and the proceedings shall be as effectual to all intents and purposes, as if all the parties had been named in the proceedings.” It is very clear that this provision is not merely directory, but is made necessary to invest the court with jurisdiction over the person and the interest which may be in him in the land. It has been so held by this court in a case entirely parallel. By the 15th section of the Act of February 24th 1834, Pamph. L. 75, giving jurisdiction to the Orphans’ Court to decree the specific performance of the written contract of a decedent for the sale of real estate, upon the application either of the purchaser or of the executors or administrators of the decedent, it was enacted that “ after due notice of such bill or petition to the purchaser or to the executors or administrators and heirs of the decedent or devisees of such estate, as the case may require to appear, in such court, on a day certain, and answer such bill or petition if there be cause, such court shall have power * * * to decree specific performance.” It was held in McKee v. McKee, 2 Harris 237, that if it appear from the record that such notice was not given, the proceedings are void. This determination was not based upon the mere order of collocation of words in the law, which it might have been argued made the power of decree to be “ after,” and therefore dependent upon the fact of notice, but upon the broad general principle, that before the rights of an individual can be bound by a judicial sentence or decree, he shall have notice of the proceeding against him, or an opportunity to be heard. At all events when the law makes provisions by which such opportunity may be afforded, it must not appear to have been wholly disregarded. “ Such notice,” said Mr. Justice Bell, “is indispensably necessary to give jurisdiction over the person of the party, and it has been truly said, that without citation and an opportunity of being heard, the judgment of a court, whether ecclesiastical or civil, is absolutely void:” Com. v. Green, 4 Whart. 568. He adds: “The power to divest men of their estates and transfer them to others is a momentous one to be exercised with great care and caution. Before it can be made effective, the court must possess itself not only of tbe subject, but of the person whose interests are to be dealt with-.** In McKee v. McKee, as well as in Ragan’s Estate, 7 Watts 441, the case of Jackson v. Brown, 3 Johns. 459, is referred to with approbation. It was there held that when one of several tenants in common had aliened his share, and the plaintiff in an action of partition proceeded as if no such alienation had been made, by giving notice to the original co-tenant, without taking notice of the grantee, the judgment was void. The Acts of Assembly of New York, on which that decision was based, are in their terms like that of 1835, merely directory. There are no doubt many proceedings in the Orphans’ Court which are not adversary, and where the absence of notice, though an error and an irregularity, will not render the decree void, so as to be impeachable collaterally. In Elliott v. Elliott, 3 Binn. 1, it was held that a proceeding for partition in the Orphans’ Court was not like an adversary suit at common law, where an infant defendant must appear by guardian or it is error. But neither of the Intestate Acts of 1705 or 1764, under which it appears that the proceedings in that case had taken place, directed that a guardian should be appointed for minors interested in a partition or appraisement of real estate in the Orphans’ Court. So in Rex v. Rex, 3 S. & R. 533, it was held that under the practice of the Orphans’ Court, it was not an objection to an award of an inquest for partition of an intestate’s estate, made on the petition of one of the heirs, that it was done without notice to the widow or other children. But the law under which that proceeding was had did not require notice. Nor, as stated by Mr. Justice Duncan, could any injustice be done; for any objection which would have been available to prevent the award of the inquest, might be made to the confirmation of the inquisition when returned. It is evident that notice at some stage of tbe proceeding before final decree was regarded as necessary, though- not mentioned in the Act of April 19th 1794, 3 Smith 143, nor any supplement thereto. The Act of 1835 was evidently passed for the. very purpose of supplying what was a glaring defect in the existing law. We hold then that when the name of a party in interest does not appear in the petition, decree and notices, unless it appears by affidavit that his name was unknown, and publication made accordingly, his share or estate will remain undivided or undivested, if’ there is a sale ordered, unless by some subsequent act or conduct of such party or those claiming under him, it has been ratified. When the name does appear, it will be conclusively presumed in favor of the regularity of the proceedings of a court of justice, that due and regular notice has been given, even though it is not affirmatively shown in the record, but when his name is not there, or that of a stranger who has no right to represent him is in his place, there is no room for any such presumption.

We are of opinion, therefore, that, fer anything that appeared in the evidence, the interest of Lewis Richards in the premises in suit was not divested by the proceedings in partition. He was not named as a party in the petition, decree or notices, but Griffin Rote as a trustee for him. Griffin Rote was not a trustee of Lewis Richards, so far as the land mentioned in the partition was concerned. Casper Richards, the father-of Lewis, by his last will had bequeathed to him the sum, one thousand dollars, which was to remain in the hands of his brothers, William and Daniel, the interest to be paid to him for life. William subsequently died intestate, leaving real and- personal property, of which Lewis was entitled to one-fourth part. Thereupon Daniel applied by petition to the Orphans’ Court, praying for the appointment of a trustee, “ to supply the vacancy occasioned by the death of the said William Richards, and to' take charge of his (Lewis’s) interest in the estate of the said William Richards, deceased.” Whereupon the court appointed Saul McCormick “ trustee of the estate of Lewis Richards, agreeably to the prayer of the petition.” This, of course, was an oversight in the court, or they would have confined the appointment to the trust created by the will of the father. Afterwards, Griffin Rote was appointed trustee in the place of Saul McCormick, deceased.

Admitting all that is contended for on the part of the defendant in error, that Lewis Richards was a man incompetent to manage his own affairs, of which there was no legal evidence, that certainly gave the Orphans’ Court no jurisdiction or authority to"appoint a trustee for him for the estate which had devolved upon him under the intestate laws from his brother William. Griffin Rote as to that property was a mere stranger — he had neither title, interest nor authority .to represent Lewis Richards. The sheriff returned to the rule on the heirs to accept or refuse, “ Served on G. Rote, committee of Lewis Richards, by reading the same in his hearing.” He was not, however, his committee, as the petition for the inquest itself showed, for it recited that “Lewis, on account of the weakness of his intellect, is under charge of the Orphans’ Court of this county, the said court having appointed Griffin Rote as a trustee to take charge of the estate of the said Lewis Richards.” But there is no law or semblance of a law to authorize the Orphans’ Court to take charge of persons of weak intellects and appoint trustees of their estates. Griffin Rote had not even color of authority to represent Lewis Richards. His estate or interest in the premises remained therefore entirely undivested by the sale, which took place upon the. refusal of the other heirs or their grantee to accept the estate at the valuation. Lewis, though a known party, had no notice; no opportunity to object; no opportunity to accept.

Nor can the Act of Assembly of April 6th 1870, Pamph L. 960, entitled “ An Act to validate certain proceedings in partition,” have any effect upon the title of Lewis Richards. Without pausing to inquire into the soundness of the objection which has been made to the title, as not being in accordance with the constitutional provision which requires that “the subject shall be clearly expressed in the title,” (first amendment of 1864), we hold that the act itself is unconstitutional and void, as an infringement of the inhibition contained in the 9th section of the declaration of rights, art. ix. of the Constitution, that no person “ can be deprived of his life, liberty and property, unless by the judgment of his peers or the law of the land.” What is this act but a mere bald attempt to take the property of A., and give it to B. ? At the date of the passage of the act, Lewis Richards had an undivided share — a fourth part of the land in.question — and by the legislative fiat validating these proceedings in partition, which the law then pronounced a nullity as far as his estate was concerned, this undivided share is divested from Lewis Richards and vested in Griffin Rote, who figured as a trustee in the partition. The preamble to the act shows indeed, that the legislature was deceived; for it recites that the writ, notices and rules in the proceeding were served on Griffin Rote, “ a trustee of the estate appointed by the said Orphans’ Court.” Literally this was perhaps true, but doubtless the legislature inferred, as they naturally might, that the estate of Lewis Richards was in trust, and Griffin Rote a lawfully appointed trustee. Nor do they appear to have been informed that it was the title of Griffin Rote, the trustee, which they were asked to validate; if they had been, probably they would have inquired more particularly into the circumstances. The act declared valid the title of Samuel Richards, the purchaser at the Orphans’ Court sale, and his heirs and assigns. But had the title of the act been full and particular; had the preamble recited the true difficulty, the entire want of authority in Griffin Rote to represent Lewis Richards; and had the enacting clause confirmed the title of Griffin Rote, derived under the proceedings, the act would still have been ineffectual for the purpose for which it was designed. It was not a case in which the mere irregularity of a judgment or a formal defect in the acknowledgment of a deed was cured, where the equity of the party is complete and all that is wanting is legal form. Such were Underwood v. Lilly, 10 S. & R. 97; Tate v. Stooltzfoos, 16 S. & R. 35; Satterlee v. Matthewson, 16 S. & R. 191; and Mercer v. Watson, 1 Watts 330. On the contrary it is very clearly within the principle of Norman v. Heist, 5 W. & S. 171; Greenough v. Greenough, 1 Jones 489; De Chastellux v. Fairchild, 3 Harris 18; Menges v. Dentler, 9 Casey 495; Baggs’s Appeal, 7 Wright 512; Schafer v. Eneu, 4 P. F. Smith 304; Shonk v. Brown, 11 P. F. Smith 320. These cases abundantly sustain the position that an act of the legislature cannot take the property of one man and give it to another, and that when it has been attempted to be taken by a judicial proceeding, as a sheriff’s sale, which is void for want of jurisdiction, it is not in the power of the legislature to infuse life into that which is dead, to give effect to a mere nullity. That would be essentially a judicial act, — to pronounce judgment — to usurp the province of the judiciary — to forestall or reverse their decision.

Upon the conclusion of the testimony of the plaintiff below, the defendant demurred to the evidence, the court overruled the demurrer and directed the jury to find a verdict for the plaintiff. He had undoubtedly shown a good primfi facie title to three-fourths of the tract which he might enforce by ejectment if there had been an ouster by the defendant. No point has been made upon this view of the case. We deem it best, therefore, to enter no judgment upon the demurrer, but to reverse the judgment and award a venire facias de novo.

Judgment reversed, and a venire facias de novo awarded.