text:
    Odd Fellows Mutual Life Insurance Company versus Rohkopp.
    1. A clause of a life insurance policy provided that the company should not he liable if the insured should become so far intemperate as to seriously or permanently impair his health. In an action upon the policy, it was proposed to show that deceased was an habitual drunkard prior to the date of the policy, and that he had created an appetite which had become fixed upon him, but which had not seriously injured his health at that date, to be followed by the testimony of experts to show that the quantity he drank before that date, together with what he drank afterwards, was sufficient to seriously impair a man’s health ; Held, that this evidence was inadmissible as immaterial and irrelevant.
    2. It was further proposed to show the appearance of the deceased after the date of the insurance, to be followed by the evidence of an expert that such were the symptoms of hard drinking : Held, that this was inadmissible and as there was no offer to prove that it.affected the health of the deceased, there was nothing in the offer sufficient to constitute a defence.
    March 17th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Susquehanna county: Of July Term 1879, No. 73.
    Debt by Louisa Rohkopp against the Odd Fellows Mutual Life Insurance Company, to recover the amount of a policy of insurance upon the life of Ernest Rohkopp, husband of the plaintiff, and the amount of which policy was payable to her.
    The policy was dated September 16th 1872, and contained the following clause: “ It is further agreed and understood, that if he (the assured) shall become so far intemperate as to seriously or permanently impair his health, or induce delirium tremens, then this company shall not be liable.”
    Plaintiff put in evidence the policy, and proved the death of her husband, and closed.
    The defendant then made the following offers:—
    1. To show by the witness that Ernest Rohkopp was an habitual drunkard for a number of years up to 1872; that he had created an appetite which had become fixed upon him, but that it had not seriously injured his health at that dare; to be followed by the testimony of experts that the amount he had drank before and the amount he drank afterwards was sufficient to seriously impair a man’s health.
    ■ 2. To show that from 1872 down to the time of his death, the deceased grew fleshy, his face and nose became red, that he was bloated, and that he had all the appearance of a drinking man; to be followed by the evidence of an expert that such are the symptoms of hard drinking.
    3. To prove that the witness had a conversation with Ernest Rohkopp in 1874 respecting his drinking, and what Rohkopp said in reply.
    The plaintiff objected to these offers as incompetent, irrelevant and immaterial, and the court sustained the objections.
    The court, Waller, P. J., alluded to the above condition of the policy, and charged: “You have heard the evidence upon these points, and we propose to submit this question to you as the only one in the case. If the evidence satisfies you that Ernest Rohkopp, after the issuing of this policy and the making of this contract, became so far intemperate as to seriously or permanently impair his health, then the plaintiff -would not be entitled to recover in this action.”
    Verdict for plaintiff for $2066.40, and after judgment thereon, defendant took this writ, alleging that the court erred in rejecting the above offers.

      Littles, Blakeslee Allen, for plaintiff in error.
    The length of time which the deceased had been intemperate before his insurance had an important bearing on his intemperance afterwards. Continued drinking for many years certainly impairs the health. We should have been permitted to show the symptoms of his intemperance. It was as competent to show the effects and signs as the act of drinking. The admissions of the deceased that he drank excessively after his insurance were certainly the best possible evidence.

      McQollum & Watson, for defendant in error.
    It was not material for the defendant to show that the health of Rohkopp had not been injured at the date of the policy, September 16th 1872. If any part of an offer is immaterial it is not error to reject the whole: Sennott v. Johnson, 9 Barr 337 ; Wharton v. Douglass, 26 P. F. Smith 273. The best evidence for the defendant below was proof of the fact that Rohkopp did drink so as to seriously impair his health. It was a question of fact to be determined by the jury, not by experts from appearances testified to by other witnesses : Bliss on Life Ins. 645-6.
    The third offer was to prove a conversation and declaration of one who was not a party to the record, and was not admissible: Mulliner v. Guardian Mutual Life Ins. Co., 1 N. Y. (S. C.) 448; Sansman’s Digest of the Laws of Insurance 513; Bliss on Life Insurance 631; Fraternal Mutual Life Ins. Co. v. Applegate, 7 Ohio 292.

      May 3d 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

_ This suit was on a policy of insurance on the life of Ernest Rohkopp, payable to his wife, Louisa Rohkopp. All the alleged errors are to the rejection of evidence.

The whole defence arises under this clause in the policy, “ It is further agreed and understood, that if he shall become so far intemperate, as to seriously or permanently impair his health or induce delirium tremens, then this company shall not be liable.” Thus no degree of intemperance was sufficient to defeat a recovery unless it had the effect “ to seriously or permanently impair his health or induce delirium tremens.” Any less effect was insufficient. No offer to prove that Rohkopp’s intemperance produced any such effect ivas rejected. The rejected offer, covered by the first assignment, clearly shows that the company did not consider habitual intemperance anjr ground for refusing a risk. It was to prove that Rohkopp was an habitual drunkard for many years prior to and at the time the insurance was taken ; that he had created an appetite which had become fixed upon him ; but that it had not seriously impaired his health at that time. The offer did not propose to show that he thereafter became so intemperate as to either “seriously or permanently impair his health.” It was to show by “ experts that the amount he had drank before, and the amount he had drank afterwards, was sufficient to seriously impair a man’s health.” The capacity of persons to drink liquor is so unequal, and the effect is so different on different individuals, it by no means follows that a quantity sufficient to affect some other man’s health, had the same effect on the health of Rohkopp. The question in issue was, did his intemperance so affect him. The court opened the door wide, and permitted the plaintiff in error to give all the evidence offered of Rohkopp’s intemperate habits, and of the effect on him. That he was habitually intemperate, was not denied or controverted. It was clearly proved. The contention was, whether its effect was such as to bring him within the clause of the policy which would prevent a recovery. Possessing a constitution and health, which habitual intemperance for so many years had been unable to seriously injure, showed a capacity to withstand its action, that justly confined the evidence to the effect the liquor had on him, and not what effect it might have on some other person.

The second assignment is to the rejection of evidence of his appearance as a drinking man, to be supplemented “ by the evidence of an expert that such were the symptoms of hard drinking.” There was no offer to prove that it affected his health. Everything contained in the offer was insufficient to constitute a defence. The truth, however, is, that all evidence legitimately calculated to establish the defence was received, and fairly and fully submitted to the jury in a charge to which there is no exception.

As the offer covered by the-third assignment fails to inform us what the conversation was, which the court excluded, we cannot say the plaintiff in error sustained any injury by its rejection.

Judgment affirmed.

Chief Justice Sharswood, and Justices Gordon and Trunkey, dissented.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Horton’s Appeal.
    1. While relationship, either by consanguinity or affinity, except in the case of parent and child, does not of itself rebut the presumption which the law raises, that a promise to pay is intended where personal services are rendered, yet it tends to rebut such presumption and if accompanied by other evidence is sufficient.
    2. A ward was the niece of the wife of her guardian and lived with him as one of his family, worked therein, and was boarded, clothed and schooled as one of his own children. The guardian frequently declared to the ward and others that he regarded her as one of his children, and would do by helas his own. He never applied to the court for an allowance for her support, nor did it appear that he made any charge in his books for her maintenance : Held, that the guardian had placed himself in loco parentis to his ward, and was not entitled to a credit in his final account for her maintenance.
    March 17th 1880.
    Before Sharsayood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Susquehanna county: Of January Term 1880, No. 267.
    Appeal of Harriet Horton from the decree of the court in the matter of the guardianship account of Henry W. Wheaton.
    Wheaton was the guardian of the appellant, and filed his final account February 26th 1874. Among the exceptions of the Avard was ohe to an item of credit for $825 claimed by Wheaton for the hoard of his Avard for two hundred and sixty weeks. The account was referred to an auditor, A. W. Bertholf, Esq., from whose report it appeared that the appellant was a niece of Wheaton’s wife, and went to live with him in August 1864, when she was about eight years of age; that in the fall of said year her mother and her father, who was a soldier .in the army, both died, and Wheaton was appointed her guardian; that she lived with her guardian until 1871, resided in his family, worked for him, and was boarded, clothed and schooled by him the same as his oato children ; that Wheaton never applied nor obtained an order of court for an allowance for his ward; that she was legally eligible to attend the soldiers’ orphan school without expense for maintenance and tuition during the time she resided Avith her guardian, and that he never sent her nor made application for her admission; that he frequently told his ward that he had taken her as one of his own children ; that he had often said to his neighbors that he had taken her as his ' own child and would treat her as such, and that he did not want any one else to school her; that the expenses of said guardian in' maintaining his ward in excess of what she earned was $231, but that said guardian had never made any charge for maintenance in his books.
    May 3d 1880.
    The auditor was of opinion that under these circumstances Wheaton could not charge said ward for her board, clothing, &c., and refused to allow any.part thereof, and surcharged him with $325, the amount claimed by him in his account.
    The court, Jessup, P. J., was of opinion that the guardian was entitled to the amount expended in the maintenance of the ward in excess of her earnings, and allowed him a credit of $234 as that amount. From this decree this appeal was taken.

      Littles, BlaJceslee and Allen, for appellant.
    The auditor found the undisputed fact that Hattie Horton was a niece of the guardian’s wife, and lived with them as one of the family. This was sufficient to rebut the presumption that the guardian had a right to charge for maintenance. We admit no mere relationship but that of parent and child would rebut such presumption. But any relationship of consanguinity or affinity is evidence and tends to rebut it: Smith v. Milligan, 7 Wright 108; Duffy et al. v. Duffy, 8 Wright 403; Lantz v. Frey and Wife, 2 Harris 202; Defrance v. Austin, 9 Barr 309; Douglas’s Appeal, 1 Norris 169. The other circumstances, and the declaration of the guardian show conclusively that he stood in loco parentis. A guardian has no right to use the principal fund of his ward without the sanction of the court.

      McQollum and Watson, for appellee.
    The fact that Wheaton took his ward to his home and treated her as one of his family instead of entrusting her to a stranger certainly imposes no duty upon him to maintain her at his own expense. She was the niece of his wife, and was entitled to a reasonable sum for her maintenance. This case differs materially from those cited by appellant, -where a closer relationship existed.
   Mr. Justice Paxson

delivered the opinion of the court,

The auditor found that the appellant is a relative by marriage of her guardian, the appellee, being a niece by blood of his wife, and that she lived with her said guardian as one of his family ; that she worked therein, and was boarded, clothed and schooled as one of his own children; that she was generally strong and healthy, and able to perform a reasonable amount of labor; that the guardian never applied for and obtained an order of court for an allowance for the support of the ward, nor does the evidence show that the guardian made any charge on his books for the support of his ward during the time she resided in his family. All this is consistent with the allegation, abundantly sustained by the evidence, that the guardian had placed himself in loco parentis to his ward. We have the further fact found by the master, that the orphan was eligible to admission to the school for soldiers’ orphans at Harford, where she could have been schooled and maintained without expense. Her guardian was under no legal duty to place her there, but it is a circumstance to be considered when he attempts to charge her with the cost of her board and maintenance during the years that she was a member of his family, and if the evidence is to be believed, doing his chores, milking his cows and feeding his pigs.

The learned auditor rejected the claim of th.e guardian for the support and maintenance of his ward. In doing so he was clearly right. While relationship, either by .consanguinity or affinity, except in the case of parent and child, does not of itself rebut the presumption which the law raises, that a promise to pay is intended when personal services are rendered, yet as was said in Smith v. Milligan, 7 Wright 107, it tends to rebut such presumption, and if accompanied by other evidence is sufficient. In Douglas’s Appeal, 1 Norris 169, the decision is directly to the point, that when a step-father takes his step-child to live with him as one of his family, he is not entitled to be repaid for expenditures made for her during her minority. Duffy v. Duffy, 8 Wright 399, is equally in point. See also Ruckman’s Appeal, 11 P. F. Smith 251.

We are of opinion that the court below erred in sustaining the exceptions filed by the guardian to the report of the auditor. They should have been dismissed and the report confirmed.

The decree is reversed at the costs of the appellee, and it is ordered that distribution be made as reported by the auditor.


author: Mr. Justice Trunkey

text:
    Winton, President, &c., versus Little.
    1 Mere forbearance, however prejudicial to a surety, will not discharge him, The failure of a creditor to revive a judgment does not discharge a surety unless there was an express agreement at the time of giving the judgment that it should be kept revived for the benefit of the surety. United States v. Simpson, 3 P. & W. 437, followed.
    2. Real estate security taken by a national bank for present or future advances is valid. Union National Bank of St. Louis v. Matthews, 8 Otto 264, followed, under the authority of which all the decisions of this court, in conflict therewith, are overruled.
    3. In 1872, a bank made a loan and received therefor a note and confession of judgment signed also by sureties. The note was taken by W,, the president of the hank, and was made payable to “ W., president or bearer." In order that the principal debtor might sell a portion of the lands in 1874,. W. gave a release of liens signed “ W., president.” . In 1876, the note not being paid, execution was issued against the sureties. At their instance, th® execution was enjoined and an issue framed between “W., president of the-bank," and the-sureties. This issue was tried in 1879. W. had negotiated the-loan, and done all the business respecting it, and the judgment stood in his name: Held, that the long acquiescence of the bank in the acts of W. was a ratification of them, and it was bound by the release given by him'.
    4. Depositions were taken in obedience to a rule of court in the presence of the parties, and the witnesses were cross-examined. The justice of the peace certified “that the above witnesses were duly qualified and examined at the time and place stated in the caption before me.” It was objected that they were not admissible, on the ground that the certificate was improper, inasmuch as it did not»recite that they were reduced to writing, nor that they were subscribed in the presence of the justice by the parties :: Held, that it is to be presumed that the depositions were properly reduced to. writing and subscribed by the witnesses, until the contrary was shown, and it was not error to admit them : Held, further, that not having made objection to the absence of the signature in the court below, no elaim, by reason of such-defect, could be made in this court.
    March 18th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Susquehanna county : Of July Term 1879, No. 118J.
    This was an issue framed upon a judgment which had been opened, wherein J. S. Little and II. P. Little, executors of Mary Little, were plaintiffs, and W. W. Winton, president of the- Second' National Bank of Scranton, defendant.
    At the .trial, before Waller, P. J., it appeared that on the 2d of December 1872, J. S. Little being indebted to- the Second National Bank of Scranton in the sum of $2955.17, applied to W. W. Winton, president, at the- Bank, for a loan of $4000, to pay this and other indebtedness-. The president agreed to loan the amount for one year at 10 per cent, interest, if' Little would get his brother, H. P. Little, and his mother, Mary Little, to sign a judgment note for the amount. The same- day the note in question was signed by these parties for $4400, at one year, the interest being included in the note. When the note was received at the bank, on the 3d, the amount of $4000 was passed to the credit of J. S. Little. Judgment was- entered on this note December 4th 1872, in Susquehanna county, where H. P. Little- and Mary Little resided, and an exemplification of the record filed' in Wyoming county, where J. S. Little resided; the lands which-the judgment bound being situated in those counties.
    The note not being paid at matui’ity, a writ of fieri facias was-issued March 3d 1876, and levied on the lands, whereupon H. P. Little and Mary Little made affidavit that they were sureties for J. S. Little, and that plaintiff had released land from- the lien- of
    the judgment without their consent, of sufficient value to pay the judgment. The sheriff was thereupon enjoined from selling; and a rule to open the judgment granted November 21st 1876. An additional affidavit was filed by leave of court, which set forth that there was some $800 in the hands of the assignee in bankruptcy' of J. S. Little, which should be applied in payment of this judgment; that Little had other real estate of the value of $3000; that he had paid $640 on the judgment for which no credit had been given, and that he had, without the knowledge or consent of the defendants in the judgment, made an agreement with the principal debtor, upon consideration, to extend the time of payment for one year.
    In January J877, the rule to open the judgment was made absolute, and on November 17th 1877, the death of Mary Little was suggested, and II. P. Little, her executor, substituted.
    On April 27th 1878, a new affidavit was filed, setting forth that defendant had permitted the lien of the judgment to expire against land of J. S. Little, and that the United States- District Court had authorized the sale of J. S. Little’s property,- discharged of the lien of this judgment, but bound by the lien of other and subsequent judgments, and leave was granted to enlarge the issue made by the other affidavits, if the court, on the trial, should be of opinion that the facts set forth constituted a defence.
    The issue came on for trial at April Term 1879, when the filing of this supplemental affidavit enlarging the issue was objected to, on the grounds: 1. That the facts set forth constituted no defence to the action. 2. That a new cause of action could not be set up after the death of one of the parties, which had changed the rules of evidence and would jeopardize the rights of plaintiffs.
    The objections were overruled. (First assignment of error.)
    The plaintiffs proposed to 'prove that an arrangement was made between Mr. Winton, acting for the bank, and Mr. J. S. Little, to release certain real estate owned by the latter from the lien of the judgment, and that in pursuance of that arrangement a written release was secured of certain property, and was filed and is of record in this case.
    'T'hey also stated that they did not propose to show that the directors passed a written resolution authorizing this release, but that upon the faith of the release a portion of the property was sold, and that it was procured for the purpose of enabling said Little to sell, and that he did sell and used this release for the purpose of showing that there was no judgment upon the property; that it ivas put upon the records of this court and stood there for five years; that no act was done in any manner by the directors affecting or repudiating it.
    The release was signed “W. W. Winton, president.” There was nothing in the offer to show that the bank or any of its officers knew of the release, nor was there any note of it made on the judgment docket.

      Objected to; especially that it does not purport to be a release by the Second National Bank of Scranton; that it purports to be a sealed release and is not sealed by the corporation; that there is no authority shown, or proposed to be shown, from the directors to W. W. Winton to sign or seal this paper release, or any other release ; or to give any release to J. S. Little releasing the lien of the judgment. Objections overruled. (Second assignment.)
    The plaintiffs then proposed to réad depositions of Mary Little and H. P. Little taken before a justice of the peace upon rule and notice during the lifetime of Mary .Little. Objected to on the ground that there is no proper certificate; it does not recite that they were reduced to writing by the justice, nor that they were subscribed to in his presence by the parties. Objection overruled, because they were taken in the presence of both parties and have been on file. (Third assignment.)
    The plaintifls presented the following points, to which are appended the answers of the court :
    1. If the jury believe that the judgment in this case was given to secure future advances to be made to the principal debtor, J. S. Little, by the Second National Bank of Scranton, the judgment was absolutely void, and the plaintiff therein cannot recover.
    2. If the judgment in this case was given in part to secure future advances to be made to J. S. Little, and in part to secure the payment of a debt already due the bank by J. S. Little, the judgment is void as to the part given to secure such future advances, and as to that part the plaintiff therein cannot recover.
    Ans. “You will perceive that this presents questions of fact which we have already submitted to you, and we have virtually answered these two points in our general charge. We now, however, affirm these propositions, with the qualification that it is for you to ascertain from the evidence whether these facts are established.” (Ninth and tenth assignments.)
    The following were among the points of defendant, with the answers of the court thereto :
    5. That the sureties having shown no authority in W. W. Win-ton to execute the release of the lien of this judgment, the same is not valid and binding upon the plaintiff in the judgment and does not operate to release' the sureties unless the act was. ratified by the plaintiff subsequently.
    Ans. “We decline this proposition, and leave it- with such suggestions and instructions as we have already given you upon that point.” (Eleventh assignment.)
    6. That there can be no ratification of an act of an agent of which the principal has no knowledge, and the mere fact of filing a paper purporting to be a release in the Common Pleas docket of a county distant from the place of business of a bank, is no evidence of notice to the bank.

      Ans. “ This proposition we cannot affirm. The bank is the plaintiff in the judgment, and is bound to understand the situation of its own record and its own claims. It would be a natural presumption that bankers are pretty sharp ordinarily in attending to their business, and would hardly allow a record to stand with a release of land which would be subject to the lien of the judgment for a period of four or five years filed in the case in which they had their judgment. Besides that, we have the evidence of the fact that the release was executed at the bank by Mr. Winton, and was done in the same manner and between the same persons that the original loan was negotiated, and the note given was signed in the same manner and made payable to W. W. Winton, president, or ‘pres’t,’ which signified president, and that the lease was filed as executed by the parties under these circumstances.” (Twelfth assignment.)
    8. That the release in evidence is not the release of the defendants in the issue, and they are not bound by it.
    Ans. “ We will have to decline that proposition. We have left it to you as a question of fact under the evidence whether it is the act of the defendants or ratified or approved by them.”' (Thirteenth assignment.)
    9. That the failure of a creditor to revive a judgment does not discharge a surety unless there has been an express agreement at the time of signing the note or giving the judgment that the same should be kept revived for the benefit of such surety, and there is no evidence of such agreement on the part of the defendants in the issue with the sureties or either of them, and upon this point the verdict must be for the defendants in the issue.
    Ans. “We decline that proposition, with the qualification that a creditor could not release property that was bound by the judgment without releasing the sureties. If he could not do it by a direct act, he certainly could not do it by so negligently looking after the security of the principal as to let his property slip out from the lien of the judgment and then look to the security for it.” (Fourteenth assignment.)
    11. That upon the whole evidence the defendants in this issue are entitled to recover-the amount of the judgment, less the two payments of $400 each and the sum of $869.60 received from W. T. Moxley, assignee.
    Ans. “We cannot, of course, affirm that proposition under the instructions which we have given in the general charge.” (Fifteenth assignment.)
    In the general charge, the court, inter alia, said: “ But it is alleged that this judgment wa3 given to a national bank for the security of money to be advanced. We propose to submit to you as a question of fact whether it was given as security for advances to be made. When, if you find that it was a national bank (and we shall have to take the party itself as it stands upon the record, and put itself into this court, claiming to be such), and if you further find that this judgment was given as security for money to be advanced or loaned in the future to J. S. Little, then the judgment would be void as against the sureties,' and there would be no recovery in this case in favor of the plaintiff in the judgment. If, however, it was given part for debt accrued and due from Little to the bank, and in part for loans to be advanced to him afterwards, then you will ascertain how much was due from Little to the bank at the time the judgment-note was given, to wit: the 2d of December 1872, because that part which was - actually due from Little to the bank at that time was a proper subject-matter to be secured by a mortgage or judgment-note, under the laws of the United States authorizing the organization and management of national banks, under the law which is particularly known as the National Bank Law. The law makes a difference between debts accrued and debts to be created, or loans to be effected afterwards. That distinction is attempted to be made here as between a mortgage and a judgment. A judgment, it is said, might have accrued and not been entered up. But Ave will leave to you as a question of fact, under all the evidence, whether it was in contemplation of the parties at the time to give that judgment for money already loaned and for money to be loaned, or for the security that the judgment would afford the bank by reason of the lien it Avould have upon the real estate. If that Avas the ground or basis of the contract, and the foundation of that transaction, then it was taking security upon real estate for loans to be made afterwards; that is, if you find the fact to be that Little did not owe them the actual amount of $4000: and the law does not permit the taking of security upon real estate by a national bank as regards advanees to be made subsequently. If you arrive at the conclusion that this note Avas given in part for money due and in part for money to be loaned afterwards, it will be necessary for you to determine the amount that Avas actually due to the bank when that note Avas given, and take that part and compute the interest on it up to the time these various payments were made, deduct the payments from the-amount of the principal Avith interest added, and ascertain Avhether there is any balance due, and if so, how much to the plaintiff in the judgment.” * * * (Fourth and fifth assignments.)
    “You have heard the evidence in regard to the release which has been referred to, and we propose to submit to you as a question of fact Avhether that release was executed properly. That is, whether it was made properly by W. W. Winton, as president of the bank, with the approval of or subsequent ratification by the bank itself.” * * * (Sixth assignment.)
    “ You will consider them all, and ascertain whether there is in the evidence sufficient to warrant you in the conclusion that W. W. Winton acted as the president of that bank by the authority or appi’oval or consent of the bank in that matter, and in connection with that you will take into consideration -the fact that they had a judgment upon the records of this court, placed there by themselves, and they could be reasonably expected in law to know the condition of their own judgment as it showed upon the record.” * * * (Seventh assignment.)
    “If you find that this release was made by Winton with proper authority, or proper approval, then you will deduct from this judgment the value of so much land as was released, as established by the evidence.” (Eighth assignment.)
    “ We have instructed you that you will ascertain whether the ■ judgment was valid under the Act of Congress, and whether it was in whole or in part a security for loans to be effected thereafter ; and to the extent that it was given for debts of J. S. Little to the bank, existing at the time, it was a good and valid judgment up to the time the release was executed; and at that time you will ascertain the value of the property released and deduct it from the amount of the judgment and interest up to that time, deducting the payments that ar.e specified here — two $400 payments and one of $869.60 — and so make your computation in regard to the amount.” (Sixteenth assignment.)
    Verdict for the plaintiffs in the issue; when Winton, the defendant in the issue, took this writ, and alleged that the court erred as set forth in the above assignments of error.
    W. H. # H. C. Jessup, for plaintiff in error.
    The sureties neither paid the debt, nor took any steps to quicken the creditor to collect it. So,long as the surety remained quiet the creditor might rest, and no act of mere quiescence can 'ever affect his remedy against the surety: United States v. Simpson, 3 P. & W. 437; Mundorff v. Singer, 5 Watts 172; Schoonover v. Pierce, 7 W. N. O. 93.
    The president of the bank exceeded his authority and his acts were void: Wharton on Agency, sects. 687, 595, 683 ; Patterson v. Moore, 10 Casey 505; Wilson v. Jennings, 3 Ohio 528; Moulton v. Bowker,'115 Mass. 36; lloetv. Bacon, 25 Id. 36; Green’s Brice’s Ultra Vires, 427 n.
    It is only when inquiry becomes a duty that a party is bound to inquire of the state of a record, and in such case only he is bound to know what the record discloses. In this case there was no obligation upon the plaintiff after it had entered its judgments properly in the proper court to make any inquiry whatever as to any unauthorized or unknown acts of its agents or others, and the docket was no notice of any such acts. A debtor is bound to seek out and pay his creditor, but when a judgment is entered on his note he may still pay his creditor wherever he finds him without regard to any number of assignments of the judgment duly filed on the record of which he has not received actual notice : Henry v. Brothers, 12 Wright 72; Bury v. Hartman, 4 S. & R. 178.
    May 3d 1880.
    H. P. Little’s deposition was not even signed by him. In such shape it certainly was not admissible.
    A national bank may take real estate security for present or future advances. The case of the Union National Bank v. Matthews, 8 Otto 61, has overruled the cases of this court which sustain an opposite view.

      D. cf H. M. Hannah and 'McCollum Watson, for defendants in error.
    It is a well-settled rule of law that if a creditor, by any contract which can be enforced at law or in equity, gives time to his debtor, or by any arrangement ties up his hands so that he cannot immediately proceed against the principal the surety is discharged : Clippenger v. Creps, 2 Watts 45; Miller v. Stem, 2 Jones 388; Sawyer v. Hicks, 6 Watts 76; Henderson v. Ardery, 12 Casey 449; Boschert v. Brown, 22 P. F. Smith 372.
    The bank is not a party of record to this cause. The control of a judgment is vested in the person who is shown by the record to be the oiyner of it. If Winton was their agent, it was negligence in the officers of the bank to permit the record to show a false ownership of the judgment. If Winton transcended his authority the bank should have promptly disowned his act, and by its acquiescence it made his act its own: Kelsey v. National Bank of Crawford Co., 19 P. F. Smith 426: Bredin v. Dubarry, 14 S. & R. 30.
    In Fowler v. Scully, 22 P. F. Smith 456, and in Wood v. Peoples’ National Bank, 2 Norris 57, it was distinctly declared by this court that a national bank could not recover upon a judgment or mortgage given for money loaned at the time and on the faith of this kind of security. It is claimed that these cases have been overruled by the United States Supreme Court in the case of National Bank v. Matthews, supra. But that case differs materially from the cases above referred to, and from the case now before the court. In the Bank v. Matthews there was a note given in the usual way constituting a “personal security,” and a trust-deed was made as a collateral security. The Act of Congress was not infringed by this arrangement, and the decision of the court was put upon this ground.
   Mr. Justice Trunkey

delivered the opinion of the court,

WThether error was committed in any ruling against the defendants is a question they have not brought here, and cannot now be considered.

It can scarcely be said that the court did not fairly and properly treat the cáse as if it were conceded by the parties that the judgment was owned by the Second Notional Bank of Scranton, incorporated and doing business under the laws of the United States. If this was error, we fail to see any reason why the bank should complain. The judgment was confessed by virtue of a warrant of attorney on a note payable to “ W. W. Winton, president, or bearer,” and he stands as plaintiff with the words, “ President of the Second National Bank of Scranton” appended to his name. If they mean nothing, he alone is the plaintiff in interest, and they may be treated as surplusage. Putting them on the record did not impose the burden of proving what they meant upon the defendants. In absence of evidence or concession of a corporation, the judgment was Winton’s, and inquiry respecting his authority to release its lien on real estate, or of the right of a national bank to take a judgment to secure future advances, would be impertinent. A glance at the case as presented, show's that, in fact, it was tried on the theory that the note was given for money of the bank of which Winton was president, and, therefore, the assignments will be considered as if the bank has a right to be heard in their support, notwithstanding its point that there is no evidence of its incorporation.

This judgment was entered in favor of Winton on a note taken in his name in 1872. An execution was issued in 1876, and on defendant’s application, the writ was stayed and judgment opened. The trial was in April 1879. During all that time 'the directors of the bank knew, or ought to have known, that the judgment appeared in favor of Winton, and not the bank, and no move was made to put it in the bank’s name. In 1874 Winton gave a release of lien to enable the principal debtor to sell and convey a part of his land. Winton negotiated the loan and did all business respecting it. Why did the directors suffer the judgment to stand in his name, if they had not given him authority to take it ? If no such authority was given, what was the long acquiescence but a ratification ? Though the appended words be sufficient notice of the claim of the bank, it would be commonly understood that it was put in Winton’s name for the very purpose that he could control it as his own. The bank had a legal existence, and was capable of acting, suing and receipting in its own name. If it chose to put the judgment in name of another, it ought to be bound by his acts with others in dealing with it. There was no conspiracy to defraud the bank between Winton and the purchaser of the land, and if by the agent’s mistaken judgment any mast suffer, the loss should fall on the one that gave him power to act. It may be true, as alleged, that the release does not purport to be the release of the bank ; but it purports to be the release of the party to whom the note was payable and who held the judgment. We are not convinced that error was committed in the rulings and instructions set forth in the second, sixth, seventh, eighth, eleventh, twelfth and thirteenth assignments.

The depositions of Mary Little and H. P. Little stood as if they had just been taken and offered in evidence, no notice having been given, as provided by the rule of court, of the filing. When offered, the plaintiff objected “on the ground that there is no proper certificate; it does not recite that they were reduced to writing by the justice, nor that they were subscribed in his presence by the parties.” Here he is confined to the objection taken in the court below. The depositions were taken in obedience to a rule of court, in presence'of the parties, the witnesses cross-examined, and we do not think the certificate fatally defective. In such case, it is presumed that the depositions were properly reduced to writing and subscribed by the witnesses in presence of the justice until the contrary is shown. No objection was made that H. P. Little had not signed his deposition. The third assignment is not sustained.

As a proposition the plaintiffs’ ninth point should have been affirmed, unless refused on the ground that there was no evidence of the fact on which it was based. The answer indicates that the fact was submitted. Mere forbearance, however prejudicial to the surety, will not discharge him. This rule applies where a creditor suffers a judgment to lose its lien for want of revival against the principal debtor, and thereby subsequent creditors are enabled to take the land: United States v. Simpson, 3 P. & W. 437. The fourteenth assignment is well taken.

On the authority of the Union Nat. Bank of St. Louis v. Matthews, 8 Otto 621, the instructions complained of in the fourth, fifth, ninth, tenth and sixteenth assignments, were erroneous. That case has settled that real estate security taken by a national bank for present or future advances is valid, and all conflicting decisions in the state courts must give way. It is there said, “ Our attention has been called to but a single point which requires consideration, and that is whether the deed of trust can be enforced for the benefit of the bank.” After noting that the Supreme Court of Missouri held the deed of trust to be the same thing as a mortgage, and that the loan was made on real estate security, it is held, “ These things render it proper to consider the case in that aspect, and conceding them to be as claimed, the consequences insisted on by no means necessarily follow. The statute does not declare such security void ; it is silent upon the subject. If Congress so meant it would have been easy to say so, and it is hardly to be believed that this would not have been done instead of leaving the question to be settled by the uncertain result of litigation and judicial decision. * * * The impending danger of a judgment of ouster and dissolution was, we think, the check, and none other, contemplated by Congress. That has been always the punishment prescribed for the wanton violation of a charter, and it may be made to follow whenever the proper public authority shall see fit to invoke its application. A private person cannot, directly or indirectly usurp this function of the government.” Justice Miller dissented, on the ground that the Act of Congress forbade national banks to take real estate security for money loaned at the time of the transaction, and that such security is void in the hands of the bank.

The point arises under a statute of the United States, and having been decided by the United States Supreme Court, the prior rulings of this court, so far as 'in conflict, fall.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    Kepner’s Appeal.
    The refusal of the Court of Common Pleas to grant a rule to show cause why their decree of divorce should not be revoked, is not the subj ect of review by appeal to the Supreme Court.
    March 18th 1880.
    Before Suarswood, C. J., Mercur, Gordon, Paxson, Trunkey, Stbrrbtt and Green, JJ.
    Appeal from the Court of Common Pleas of Schuylkill county: Of January Term 1880, No. 327.
    Libel in divorce by Sophia Kepner, by her next friend, Levi Huber, against S. K. M. Kepner.
    On the 25th of January 1869, Sophia Kepner filed her libel in the Court of Common Pleas of Schuylkill county, upon which the court awarded a subpoena, which was returned non est inventus, and thereupon, on the 1st of March 1869, the court, upon motion, awarded an alias subpoena to June Term 1869. This alias subpoena was also returned non est inventus by the sheriff, and publication was made for four weeks in July 1869,' notifying the respondent to appear at September Term 1869. On the 7th of June 1869, the court appointed an examiner to take depositions ex parte libellant and report the same to the court to September Term 1869. On the 30th of June 1869, depositions of the petitioner were taken, which were filed in court on the 6th of September 1869, and on the same day the court decreed that libellant be divorced.
    On the 5th of May 1879, the respondent presented his petition, praying for a rule on the libellant to appear and show cause why the decree should not be revoked. The court took the papers, and on the 19th of May 1879, filed-them, together with an order refusing the rule, with the verbal announcement that the respondent had waited too long to make his application. On the 25th of August 1879, the respondent presented an additional petition alleging the time of his first knowledge of the decree of divorce to he September 1878; and on the 16th of February 1880, the court again refused a rule, and the petitioner excepted to the order of the court. When these petitions were presented and the rule prayed for, the counsel for the respondent claimed that the decree of divorce was void for want of jurisdiction; that it was not justified by the depositions ex parte libellant, she not having proved that she was a citizen of Pennsylvania or had resided therein for one year previous to filing her libel.
    The court refused the rule, when the respondent took this AVrit, alleging that the court erred in refusing to grant the rule; in the appointment of the examiner and decreeing a divorce upon the depositions ex parte libellant; in the decree of divorce before notice of publication had been returned, and in not dismissing the libel for Avant of jurisdiction.
    When the case came on for argument in the Supreme Court, the appellee’s counsel moved to quash the writ on the ground that the refusal of the court to grant a rule to show cause why the decree should not be revoked was a discretionary act, and Avas not the subject of review.

      JB. Bryson McGool, for appellants.
    The right to a re-hearing was demanded on the ground of after-discovered facts, and the refusal of the court was the subject of review; Keim’s Appeal, 3 Casey 44. The appointment of the examiner Avas premature, and without authority. No further proceedings could be had until the time to which the order of publication Avas returnable: Act of March 13th 1855, sect. 3; Hoffman v. Hoffman, 6 Casey 417.
    Here the parties moved to NeAv York in 1859, and the wife ten years later, during the temporary absence of her husband in California, came to Pennsylvania, leaving her parents and children in NeAv York, and while visiting her sister filed her libel in divorce. Surely there Avas no jurisdiction in this'case: McDermott’s Appeal, 8 W. & S. 256; Steel v. Smith, 7 Id. 447; Hollister v. Hollister, 6 Barr 451; Colvin v. Reed, 5 P. F. Smith 375; Reel v. Elder, 12 Id. 308. A bona fide domicile, in the strictest sense of the word, is essential to give jurisdiction; and this is the doctrine now firmly established in America: Story’s Conflict of Laws, 5th ed., 352.

      S. H. Kaereher and Gr. B. Kaercher, for appellee.
    By the provisions of the Act of 1815, Purd. Dig. vol. 1, page 510, sect. 12, the court was expressly authorized to decide the case “ in the presence of the parties, or if either of them will not attend, then ex parte, by the examination of witnesses, or interrogatories, exhibits or other legal proofs had either before or at the hearing.” The court having jurisdiction, the proceedings being regular, the decree of the court was final and conclusive. The Act of 8th February 1819, sect. 1 Purd. Dig. page 511, sect. 17, expressly declares that “no appeal shall lie from the final sentence or decree of the court of common pleas or other court having competent jurisdiction in cases of divorce after the expiration of one year from the time of pronouncing the said final sentence or decree.” The action of the court below in refusing to vacate its orders, decrees or judgments is not reviewable in this court: White v. Leeds, 1 P. F. Smith 189; Kalbach v. Fisher, 1 Rawle 323; Kellogg v. Krauser, 14 S. & R., 144; Skidmore v. Bradford, 4 Barr 296; Nice v. Bowman, 6 Watts 26; McKee v. Sanford, 1 Casey 105: Bunee et al. v. Wightman, 5 Id. 335; Breden v. Gilliland, 17 P. F. Smith 34; Gamble v. Woods, 3 Id. 160.
    March 31st 1880,
   The judgment of the Supreme Court was entered

Per Curiam.

The decree below was entered September 6th 1869. The appeal is clearly barred by lapse of time. The refusal of the court, May 19th 1879, and .again, February 14th 1880, to grant a rule to show cause why the decree should not be revoked, was clearly not the subject of review by appeal to this court. We cannot in this way decide whether this court had jurisdiction to enter the original decree or did so upon sufficient evidence.

Appeal quashed.


author: Mr. Justice Mercur

text:
    Dando’s Appeal.
    A married woman owned certain stock as her separate property. She and her husband jointly executed a promissory note, and for a loan obtained thereon deposited the certificate of stock as collateral security for the payment. The stock was delivered at the time the note was given and the money paid. It was accompanied by a written authority to sell, without reference or notice to the pledgors, on non-payment of the note. The lender advanced the money in the presence of both husband and wife, without knowledge of what disposition was to be made of it, and in consideration of the transfer and delivery to him of the stock as collateral security. The money was not paid for necessaries, nor for the improvement of the wife’s separate estate. She filed a bill to restrain the sale of the collateral, and to compel its return to her: Held, that the contract was executed, and. that the pledgee might retain the stock to answer the purpose for which, in good faith, it was received.
    March 18th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Schuylkill county. Of January Term 1880, No. 331. In Equity.
    Bill in equity filed by Margaret Dando, by her next friend, Harrison A. Kerr, against George Batten.

      The bill alleged that Margaret Dando is a married woman, and has been for the last twenty years living with her husband in charge of his family, and as such was well known to the defendant. That she was seised in her own right, and not acquired from or in any way by or under her husband, of twenty shares of the capital stock of The First National Bank of Minersville, and the certificate was issued to her and was held by her. That on or about the 4th of May 1874, she, with her husband, made a joint and several promissory note in form what is generally called a collateral security note, and was (as near as she is able to say, having applied to the defendant for a copy of the same, which was refused), as follows:—
    “Minersville, May 4th 1874.
    “$1035.00.
    “ Six months after date we or either of us promise to pay to the order of George Batten, one thousand and thirty-five dollars, for value received, without defalcation. Along with the foregoing obligation we have delivered to said George Batten certificate No. 65, for twenty shares of the capital stock of The First National Bank of Minersville, as collateral security for the payment of the same on the day it becomes due, which -collaterals we hereby authorize and empower the holder of this promissory note (provided the same be not paid at maturity) to sell and transfer at public or private sale, without further reference or notice to us, and to apply the proceeds in payment thereof, together with interest and charges incurred thereon ; thereafter should any deficiency remain unpaid, we further promise and agree to pay the same to the holder hereof on demand.
    Stephen Dando.
    No. Due. Margaret Dando.”
    That with said note said certificate of stock was deposited with George Batten, the defendant. That no part of the proceeds of said note was paid to her, nor were they used by her for necessaries for her family, nor for the improvement of her real estate, and believing said transaction was illegal and void, she notified the said bank not to transfer said shares of stock to said Batten, nor to allow the same to be done upon the books of the bank, and said Batten was also duly notified that she claimed said shares of stock, and she demanded of him to return the certificate to her, but he neglected and refused to return the same to her. That said Batten disregarded her rights, refused to return to her the certificate, and had advertised the same to be sold at public sale on the 5th day of April 1879.
    The bill prayed that the defendant be enjoined from selling said stock, and that he be directed to deliver said stock to the complainant.

      The answer admitted that the complainant was a married woman. That she had in her own name twenty shares of the capital stock of said bank, and that the certificate was issued to her therefor, but averred that of the mode of her acquiring it defendant had no knowledge. The answer then set forth a copy of .the original paper similar to that contained in the bill, with the exception that the words “Along with the foregoing obligation we have delivered twenty shares of the stock of” were substituted for the words “Along with the foregoing obligation we have delivered to said George Batten cer-' 'tsficate No. 65, for twenty shares of the capital stock of.” The answer further averred that at the time said note was executed, and the certificate for- twenty shares of stock and the note were delivered to defendant, he advanced and paid upon said securities the sum of $1000, the sum of $35 being for interest thereon until maturity of the note. That both the said Margaret and her husband were present at the time the money was paid by the defendant — as to whether the said sum of money was received by and ■for the sole use of the said Margaret, or for the separate and sole use of the said Stephen, or for their joint use, the defendant was not informed; but that said sum was paid to them at the time for and in consideration of the said shares of stock being so transferred and delivered as the security for the re-payment of said sum of money. That the note was not paid at maturity nor since (except $180 interest), but that the full amount of the note, with interest since maturity, is due and unpaid and owned by the defendant. That he has no knowledge whether the money was used for complainant’s benefit or not, and admits the notice to the bank not to transfer, &c., and to himself the claim of ownership, the demand of the return of the certificate of stock, and that he had advertised and was about to sell the same at public sale.
    An amendment of the bill -was allowed, setting out that the bank was organized under the Acts of Congress, and was not a corporation created under or by the laws of Pennsylvania, with a copy of the certificate of stock, which showed that the certificate was only transferrible on the books of the bank by complainant or her attorney on return of this certificate.
    The case was heard on bill .and answer, and the court refused the injunction and dismissed the hill, in an opinion, inter alia, saying:
    “ In so far as the writing, thus signed, promises to pay to the defendant the sum of $1035, it is, as against her, worthless. But this instrument contains much more than a promise to pay money. It is her written authority to the defendant, or the holder thereof, to sell or transfer at public or private sale her twenty shares of stock, and it is accompanied with the actual delivery of the certificate of stock itself. The property in question is’ personalty, and the method of its transfer is not prescribed by the Act of 1848. In Hinney v. Phillips, 14 Wright 382, Justice Agnbw said, ‘before the passage of the Act of 1848, securing the separate estate of married women, it was well settled that a wife might dispose of such estate (personally) by gift or loan. * * * Since the passage of that act, her power over her own estate is not less, in this respect, than it was" before.’ The provision that her estate shall' not he sold, conveyed, mortgaged or encumbered by her husband without her written consent, given in the mode provided by the act, is not a restriction upon her own power of disposing of her money or other property capable of transfer by delivery, but was intended to protect her from his unauthorized acts.. Ruling of like character is found in Haffey v. Carey, 23 P. F. Smith 431, and Bond v. Bunting, 28 Id. 210, in the latter of which, her assignment of a portion of a life insurance policy upon the life of her husband, for the benefit of his children by a former marriage, without transfer of the possession of the policy to the transferees, without consideration and without acknowledgment, was held good as against her after the death of her husband, he having joined in the transfer or assignment thereof. There is no allegation of fraud or coercion in obtaining her signature to the writing in question. It is true 'she did not acknowledge this instrument ‘separate and apart from her husband’ though he joined her in its execution. But that a married woman may assign or transfer property like that in question, without an acknowledgment, was decided in Bond v. Bunting, supra, and other cases there cited. In addition to these authorities, we find recent legislation upon this subject. By the Acts of April 1st 1874, Pamph. L. 49, and May 14th 1874, Pamph. L. 158, additional powers seem to have been conferred upon her. And for the purpose of selling and transferring much of her personal property she is enabled to act as though she were unmarried. The certificate of stock was delivered to the defendant at the time of the delivery of the writing and the receipt of the money. The property in question was capable of no other delivery. The writing contains the power to transfer, the money remains unpaid, and the transaction assumes the character of an executed contract, no act of hers being required to its completion. Under the ruling in Fryer v. Rishell, 3 Norris 521, we think her right to equitable relief is, to say the least, doubtful, and to doubt the legal right of an applicant to an injunction is to refuse it.”
    The court subsequently said: “After final hearing and a reexamination of the entire case, we fail to find any reason for changing the conclusion at wdiich we arrived upon the hearing for a preliminary injunction. Our conclusions were then reduced to writing, and filed of record. The authorities therein referred to, we think, determine the questions before us, hence we .can but dismiss the-bill.”

      The complainant took this writ, and alleged that the court erred in refusing the injunction and dismissing the bill.

      Seth W. Geer, for appellant.
    A married woman is incompetent to execute a writing obligatory, or other personal obligation, that will bind her: Husbands on Married Women, sect. 54: Mahon v. Gormley, 12 Harris 80; Imhoff v. Brown, 6 Casey 504. The certificate was in the name of the wife, and defendant knew it was her property and not her husband’s. The note was made by her and her husband, while together, they wrnre together when the money was paid, and in law it was his note and not hers; he received the money, not she. If the debt had been contracted for necessaries for'the use of herself and family, it would have been his debt, and her estate could not have been charged with its payment. And if she could not give a note or a bond for a debt contracted by her for necessaries, can she give a note for money taken or borrowed by her husband and her together for his own use ?
    The contract was not a- perfect one. The instrument contained no form of attorney authorizing the transfer of the stock. In Bond v. Bunting, 28 P. F. Smith 210, there was an absolute assignment of the stock. This stock is not within the Act of April 1st 1874, as it is stock in a national bank, and, therefore, not in one created under the laws of the Commonwealth as the act provides. This was not an executed.contract on the part of Mrs. Dando, but was merely placing her property as security for her husband’s debt. It was done in such a manner and under such circumstances as in the law would be presumed to be done by her under the duress of her husband. The note, being void as to her promise to pay the money, was void as to the subsequent clauses pledging her property for its payment, and authorizing its sale if the note were not paid.

      David A. Jones and Din Bartholomew, for appellee.
    The provision in the Act of 1848, that a married woman’s estate should not be conveyed, mortgaged or encumbered without her written consent given in the mode provided in the said act, was not intended as a restriction placed upon her to prevent her from exercising absolute authority over her own personal estate in possession, but a protection to her estate as against the unauthorized acts of her husband. The power and control of a married woman over her money or other property capable of transfer by delivery, is no less now than prior to the passage of the Act of 1848.
    There is no allegation of duress on the part of the husband over the wife. The ruling was an absolute direction to make public or private sale of the stock “ without further reference or notice to us.” It certainly must have been the conviction of Mrs. Dando, that she parted with all title to and dominion over the stock for ever. Where the delivery of merchandise and the payment of the price thereof by a married woman out of her own funds are simultaneous acts, the transaction is an executed and completed contract. Here the contract was in a like manner completed.
    May 3d 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

This bill prayed the appellee should be restrained from selling certain bank stock, and be ordered to deliver the certificate thereof to the appellant. The case was heard on bill and answer. The grounds on which relief was asked are that she was a married woman, that the stock was her separate property, and that she and her husband deposited the certificate of stock with the appellee as collateral security for the payment of money; but the money for which the samé was pledged was not used by her for necessaries, nor for the improvement of her real estate. The bill contains no averment of fraud, deception or undue influence in procuring the certificate. It further appears, both by bill and answer, that it was delivered at the time the loan of money was made; that a note to secure the payment thereof, signed by her and her husband, was then executed and delivered by them to the appellee. After language usually contained in a promissory note, it proceeds to declare: “ Along with the foregoing obligation, we have delivered twenty shares of the stock of the First National Bank of Miners-ville as collateral security for the payment of the same on the day it becomes due, which collateral we hereby authorize and empower the holder of this promissory note, provided the same be not paid at maturity, to- sell or transfer at public or private sale, without further reference or notice to us, and to apply the proceeds in payment thereof, together with interest and charges incurred thereon.” In his answer the appellee avers that both she and her husband were pi’esent when he advanced the money, but “as to whether the Said sum of money was received by and for the sole use of the said Margaret, or for the sole and separate use of the said Stephen Dando, or for their joint úse, this defendant is not informed and has no knowledge, but that the said sum was paid to them at’ the time for and in consideration of the said shares of stock, being so as aforesaid-transferred and delivered as the security for the repayment of said sum of money,” and that said note had become due, and was unpaid and held and owned by him.

Thus, it appears the property in contention is personal estate. It was transferred by husband and wife jointly. It was delivered at the time the consideration therefor was received. It was accompanied by a written authority to sell, that contained no right of revocation. Nothing remained to be done by either husband or wife to pass the title. Prior to the Act of 1848, a married woman-might sell or give,’ where accompanied by a transfer of possession, her separate personal estate to her husband or to a stranger: Towers v. Hagner, 3 Whart. 57; Naglee v. Ingersoll, 7 Barr 185; Hinney v. Phillips, 14 Wright 382. A married woman may transfer her separate property to pay a present or future indebtedness of her husband. Her power over her property is not lessened by that act: Hinney v. Phillips, supra. She may transfer it in the same manner that she could have done before : Haffey v. Carey, 23 P. F. Smith 431. It was, therefore, held in Bond v. Bunting, 28 Id. 210, that she may assign her cboses in action, her husband joining in the act of disposition, without acknowledgment of any kind. When she cannot restore the consideration, equity will not permit her to repudiate the assignment on the ground that she had not acknowledged it: Eryer v. Rishell et ux., 3 Norris 521.

Under the facts shown, it would be a fraud on the appellee, which equity will not tolerate, to now permit her to take from him the substantial security on which he parted with his money. He, therefore, may retain it to answer the purpose for which, in good faith, it was received: Selden v. Merchants’ National Bank of Meadville, 19 P. F. Smith 424, The learned judge committed no error in dismissing the bill.

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

Gordon, Trunkey and Sterrett, JJ., dissented.


author: Mr. Justice Green

text:
    Stichler versus Malley.
    1. Where miners and laborers make claim for wages, under the Act of April 9th 1872 and its supplements, notice in writing of the claims and the amounts thereof must be given to the sheriff, before the sale of the property, as required by the second section of said act.
    2. The duty of proving that there was notice rests with the claimants, as it is a statutory pre-requisite to the enforcement of their claims.
    3. Judgment in an amicable action for such wages and execution thereon are not such notice as is contemplated by the act.
    March 18th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal to the Court of Common Pleas of Schuylkill county: Of January Term 1880, No. 314.
    Amicable action in debt and confession of judgment, wherein H. P. Stichler, trustee, was plaintiff, and Peter G. Mailey defendant.
    Mailey was the owner of a leasehold estate with the right to mine coal and erect a breaker. He employed in August 1878, and thereafter in the same year, various mechanics and material-men to furnish him with lumber, machinery, &c., for the erection of the breaker. About the 1st of January 1879, he was in default in the payment of wages to his miners and laborers for the months of November and December 1878, as well as the amounts due on the mechanics’ liens. In the same month Malley confessed this judgment to Stichler, as trustee for the laborers and miners. On this judgment an execution issued, and the lease and fixtures were sold and the proceeds paid into court and referred to an auditor, John A. Sullivan, Esq., for distribution. Before him the mechanics' lien-creditors appeared, as well as the laborers and miners; the former contending that they were entitled to the fund in preference to the latter. The auditor sustained this contention in his opinion, inter alia, saying:
    “ The auditor from the evidence adduced before him, and after a careful consideration of the Mechanics’ Lien Law of 1836 and its supplements, and the law of 1872 and its supplement of 1874, giving a preference to the miners and laborers employed-around the mines, and after a full examination of all the authorities submitted, is of the opinion that the wages of miners and laborers as represented by judgment to No. 164, March Term 1879, should be postponed until after the mechanics’ liens are satisfied. Had the miners and laborers given the proper notice to the sheriff before the sale in accordance with sect. 2, of the Act of 9th April 1872, it could not avail anything, inasmuch as the liens of the mechanics had attached to the leasehold estate and improvements from the commencement of the building, and therefore could not be prejudiced by subsequent liens or judgments.”
    Stichter excepted, but the court overruled the exceptions, whence this writ.

      JD. B. &reen, M. M. L’ Belle and S. B. Fisher, for appellants.—
    The Act of 1859, Pamph. L. 318, gave miners and laborers a preference over all other claims. The Act of April 9th 1872, 2 Purd. Dig. 1464, confirmed the preference which had been given by previous laws. It is true that under the 4th section of the Act of 1872, no lien by mortgage or judgment shall be effected by this preference: but this question cannot arise here, as the mechanics had acquired no such lien. They were not recorded liens, and therefore not notice to any one of their existence or extent. The judgment and execution were sufficient notice under the Act of 1872.
    The fund in court,arose from the sale of the leasehold estate, not from any separate sale of the improvements and fixtures entered upon the demised premises. The mechanics and material-men claimed a lien not only against the improvements, but also against the leasehold. It is submitted that under the decision of this court in St. Clair Coal Co. v. Martz, 2 Leg. Chron. 89, they are entitled to no lien against the whole leasehold estate.

      May 3d 1880.

      D. C. Henning, for appellees.
    Notice of these mechanics’ claims was given at the sheriff’s sale of the property, -which occurred within six months from the time when the materials were furnished and the work done, as claimed by the mechanics’ lien-creditors ; and as the lien is created by the statute to take effect from the time the improvements are made, and as the filing or entering of the claim is but a means of continuing the lien already acquired, it must follow that if actual notice of the lien be given at the time of sale so as to have creditors and purchasers informed, the status of the lien-creditor must be just the same as if his lien .had been filed and recorded: Yearsley v. Flanigan, 10 Harris 491. By the 2d section of the Act 9th April 1872, it is provided that, “ In all cases of executions * * * and writs of a similar nature hereafter to be issued against any person * * * it shall be lawful for such miners * * * to give notice in writing of their claim or claims and the amount thereof; to the officers executing either of such writs at any time before the actual sale of the property levied on’’ * * * &c.: 2 Purd. Dig. p. 1464; First National Bank v. L. & M. Childs, 2 Foster’s Leg. Chron. 199. No such notice was given.
   Mr. Justice Green

delivered the opinion of the court,

It does not appear that any notice in writing of the claims of the appellants, and of the amount thereof, was given to the sheriff at any time before the sale of the property levied on, as is required by the second section of the Act of 9th April 1872. The auditor practically finds that no such notice was given, and there is nothing on the record to show that he was in error in that finding. The duty of proving that there ivas such notice rests upon the appellants, as it is a statutory pre-requisite to the enforcement of their claims. The notice contained in the amicable action upon which the judgment was entered, is no notice to the officer executing the writ. That paper Avould be lodged in the prothonotary’s office, where it would remain, and there Avould be neither certainty nor probability of its being seen by the sheriff. There is no proof that in point of fact he ever did see it. The appellants have therefore failed to establish the validity of their claims as liens upon the fund for wages of labor due them, under the act. As a mere judgment their claim is subsequent to the mechanics’ liens, to Avhich the fund was distributed, and the levy and sale by execution under that judgment does not help the claim as against those liens. The objection to the latter that they are filed against the leasehold as well as the improvements, we can not determine because there is no evidence on the record upon that subject. We can not say, therefore, that they are not entitled to the money which has been awarded to them by the auditor.

Decree affirmed, and appeal dismissed at the cost of the appellant.


text:
    Commonwealth versus Luberg.
    1. A fcel’er of a national bank may be eonvieted in a state court, upon an indictment charging him with fraudulently making false entries, reports and statements of the bank, with intent to injure and defraud said bank. The offence thus charged was forgery at common law.
    2. Per Paxson, J. — The indictment here is laid under the statute and does not charge the offence of forgery in the technical manner required by the striot rulés of the common law, but it is good under our Criminal Procedure Act. That the act does not call it forgery makes no difference. It is the same offence.
    March 18th 1880.
    Before Sharswood, C. J., Mercur, Gor-
    don, Paxson, Trunkby, Sterrett and Green, JJ.
    Error to the Court of Quarter Sessions of Schuylkill county: Of January Term 1880, No. 278.
    Two indictments against Charles E. Luberg. The first, No. 268, May term 1878, charged him as receiving teller of the First National Bank of Mahony City, with receiving the moneys, &c., therein named, and unlawfully, maliciously, wilfully and fraudulently embezzling, abstracting and misapplying the same, with intent to injure and defraud, in the first count, the bank, and in the second count, the individual stockholders.
    The second indictment, No. 269, May term 1878, charged him with having, as the receiving teller of the said bank, unlawfully, maliciously, wilfully and fraudulently made false entries in the books, reports and statements of said bank, with intent thereby to injure and defraud said bank.
    The bank was incorporated as a national bank under the laws of the United States.
    Defendant pleaded “ Not Guilty,” and was found guilty under both indictments. On the first he was sentenced to an imprisonment of one year, and on the second to another year’s imprisonment, to take effect immediately on the expiration of the first. Defendant took this writ, and alleged for error that the court had no jurisdiction over the offence charged in either indictment.

      James Hyon, for plaintiff in error.
    There was no common-law offence, such as the one charged: 2 Russell on Crimes 163-4; 4 Black. Com. 230. The jurisdiction is exclusively in the United States courts, unless otherwise provided: Houston v. Moore, 5 Whart. 1; 1 Kent’s Com. 398; Curtis’s Com. 176. The National Banking Act of June 3d 1864 contains no such proviso, and hence the jurisdiction over the offence here charged against a national bank is exclusively in the United States courts: Commonwealth v. Felton, 101 Mass. 204; Commonwealth v. Fuller, 34 Conn. 270; Commonwealth v. Barry, 116 Mass. 1. If it is claimed that the state court had jurisdiction under our state acts, we answer that the Act of Assembly of 12th June 1878, Pamph. L. 1878, p. 196, repealed the 116th, 117th, 119th and 112th sections of the Crimes Act of 1860, and the 86th section of the Act of 1861 of the Free Banking Act; and consequently even if the court below had jurisdiction of the particular offence charged, the prisoner was not liable to prosecution, and his conviction and sentence were erroneous. And growing out of this second proposition is the question whether the 36th section of the Free Banking Act of 1861, Pamph. L. 1861, p. 515, is not a special law[ and applies only to offences committed by -officers of banks created under that act. This case is ruled by the recent decision in Commonwealth ex rel. Torrey v. Kentner, 11 Norris 372.
    May 3d 1880.

      A. W. Sehaleh, District Attorney, Geo. R. Kaercher, and Lin Bartholomew, for the Commonwealth.
    Unlike the Torrey case the offence here charged, to wit: fraudulently making false entries in the books, reports and statements of his employers with intent to cheat and defraud them, was an offence at common law, and needed no statute to create it: 4 Blackstone 247; 2 East 852; Roscoe’s Crim. Ev., 6 Am. ed., 576; Commonwealth v. Biles, 3 Phila. 350; Brightly’s Dig., sect. 726-9.
    Offences against the United States may be punished in the state courts unless Congress has expressly made the federal jurisdiction exclusive: Com. v. Schaefer, 4 Dallas 26; White v. Com., 4 Binn. 418; Buckwalter v. United States, 11 S. & R. 196. See also United States v. Hutchinson, 4 Clark 211; Bletz v. Columbia Nat. Bank, 6 Norris 91; Claffin v. Houseman, 3 Otto 130; Jett v. Com., 7 Am. Law Reg. (N. S.) 260; United States v. Cary, Id. 267; Coleman v. State of Tennessee, 7 Otto 309. It is the nature of the offence and not the party offended which determines the question of jurisdiction. This offence was punishable under the Crimes Act of 1863, and if said act was repealed by the Act of 1878, this indictment was found before the last act was passed. The question whether the jurisdiction was rightfully exercised could only be determined on exception taken in the court below. It was too late to make the exception here: Titusville B. & L. Asso. v. McCombs, 8 W. N. C. 12; Wetherill v. Hillman, 15 P. F. Smith 105, 115; Spade v. Bruner, 22 Id. 57, 59; Miltimore v. Miltimore, 4 Wright 155.
   Mr. Justice Paxson

delivered the opinion of the court,

The second assignment denies the jurisdiction. The plaintiff in error was convicted upon an indictment charging him as receiving teller of the First National Bank of Mahony City, with fraudulently making false entries in the books, reports and statements of said bank, with intent to injure and defraud the said bank, and we are asked to reverse the judgment upon the ground that the offence charged having been committed by an officer of a national bank, it is not the subject of indictment in a state court. Commonwenlth ex rel. William Torrey, decided at the last term, was relied upon to sustain this position. Torrv was indicted as cashier of a national bank with embezzling the funds of the bank, and he was discharged upon habeas corpus for .the reason that the offence was not indictable at common law, and our statutes defining and punishing the offence do not apply to national banks. Here the indictment charges an offence which was a crime at common law. In Commonwealth v. Beamish, 31 P. F. Smith 339, it was d.ecided that the fraudulent alteration of a book, known as a tax duplicate, was forgery at common law. It is plain under this authority the plaintiff in error could have been indicted for forgery. The indictment here is laid under the statute, and does not charge the offence of forgery in the technical manner required by the strict rules of the common law, but, as in Commonwealth v. Beamish, is good under our Criminal Procedure Act. That the Act of Assembly does not call it forgery makes no difference. It is the same offence.

The first assignment alleges error in another ease in which the plaintiff in error was convicted and sentenced. We cannot upon this writ of error, reverse a judgment in another case though against the same party. Nor is it material as the record shows the plaintiff has served out the term of imprisonment imposed by the court.

Judgment affirmed.