text:
    Beates versus Retallick.
    1. In an action against a clergyman to recover the penalty for marrying a minor a mistake in the declaration as to the time of the marriage was amendable.
    2. The minority of the plaintiff's son whose marriage was the cause of the suit was of course a proper subject of proof.
    3. The declarations of the son that the amount recovered was to be divided between his father and himself were not evidence against his father, the plaintiff in the suit.
    . 4. A verdict in such an action finding the “ defendant guilty in manner and form as he stands indicted'' was amendable or liable to be put into form with the assent of the jury or the Court had the power to send the jury out for further deliberation.
    Error to the Common Pleas of Lancaster county.

    John Retallic brought an action of debt against the Rev. William Beates, to recover the penalty of ¿650, prescribed by Act of Assembly for marrying á minor without the consent of the parents. In the declaration it was charged that the plaintiff’s son, alleged to be a minor, was married by the defendant on the twentieth of June, 1852. At the trial it was offered to prove that the marriage took place on the 27th June. This was objected to, and by leave of the Court the declaration was amended by changing the date.
    Notice was given to the defendant to produce the marriage records, but they were not produced. To prove the minority of the son the certificate of a physician was received, it having been agreed that it was to be received as if the doctor were examined personally. The “subject-matter” of the deposition was objected to.

      It was testified that the defendant was told that both the parties married were of age, and that the parents had assented to the marriage. No written consent of the parents was asked for by the clergyman.
    The marriage was proved by two witnesses, one of whom was the female married, and the time oí it was testified to by her.
    On part of the defendant evidence was offered of declarations of the plaintiff’s son, whose marriage was the cause of the suit, that his father was to bring suit against the defendant for performing the marriage ceremony, and was to give the son the one-half of the amount recovered. This was rejected.
    The Court charged the jury generally, and also in answer to points ; and the jury first rendered a verdict finding the “ defendant guilty in manner and form as he stands indictedbut having been sent out again, found for the plaintiff £50 debt, with six cents damages and six cents costs. Judgment was rendered thereon. .
    It was, inter alia, assigned for error — 1. That the Court erred in permitting the amendment of the narr. 2. In admitting the certificate of the physician as to the birth of the plaintiff’s son. 8. In rejecting the declarations of the plaintiff’s son as to the suit against the defendant, and the division of the amount recovered. 4. In charging that to avoid the penalty prescribed for marrying a minor, publication of the banns was necessary. 8. In charging that the jury might take into consideration the non-production of a record of the marriage. 10. In sending out the jury to make up a second verdict.

      Fllmaker, for plaintiff in error.

      Fraser, for defendant in error, the Court declined to hear.
   The opinion of the Court was delivered by'

Woodward, J.

This was an action against the plaintiff in error, a German Lutheran clergyman in the city of Lancaster, to recover the statutory penalty for marrying-the minor son of the plaintiff below, to one Ellen Williams, also a minor, without a prior publication of banns. When issue was joined the declaration charged the marriage to have been celebrated on the 20th June, 1852. On the trial the plaintiff offered to prove a marriage on the 27th June, 1852, which being objected to, the Court permitted the plaintiff to amend his narr. by substituting the 27th for the 20th, and this is the subject of the first error assigned.

At common law there seems to be no distinction in permitting amendments to be made, whether the action be civil or penal, as is shown by the authorities cited by Mr. Justice Kennedy in Griffith v. Eshleman, 4 Watts 55. The qui tam action on the usury statutes is penal, and yet in Mace v. Lovett, 5 Burr. 2833, the sum sued for was permitted to he changed after the issue had been made up from 100 pounds to 88 pounds. See also Jones v. Ross, 2 Dal. 143. Our Act of Assembly of 21st March, 1806, is applicable to penal as well as civil actions, yet it is confined to amendments permitted at common law, which consist in matters of form and not in matters of substance. Por Kennedy, J., in Griffith v. Eshleman.

The inclination of the Courts has always been to a liberal construction of the right of amendment, whether at common law or under the statute. Though a new and different cause of action may not be introduced by way of amendment, whatever is a mere variation of the mode of charging that which is already on the record is generally admissible. And it is well that substantial justice should be unfettered as far as possible from the restraints of formal technicalities. The Act of Assembly on which this action is founded, is penal; and, like all such statutes which act on the offender, is-to be strictly construed; but as the offence consists in the fact, of marrying a minor, and the suit is for that,-the date becomes a mere circumstance of description, and, like a misspelled name or any other erroneous incident, may be amended. If the defendant was surprised,, he indemnified himself by taking a continuance for a term.

The second eiror relates to the admission in evidence of the certificate of Dr. Atlee to establish the minority of the plaintiff’s son, as follows:

“ This is to certify that I attended the wife of Mr. John Retallick, of this city, on the 7th of February, 1834, at which time she was delivered of a son, who is now living, and I believe is called John. Jno. L. At:lee, M. D.

Lancaster, Aug. 22d, 1853.”

It was agreed that this should be received in the same manner as if the Doctor was present to be examined, but the “subject-matter,” says the bill of exception, was objected to. There could be no objection to the subject-matter, the medium of proof being agreed to, for it tended to fix the birth-day of the plaintiff’s son, and, in connexion with other proof on the same point, was properly submitted to the jury.

Not a plausible pretext, much less an argument, can be set up in support of the third error. The declarations of John Retallick, Jr., were no more competent to be given against his father than those of any other man.

We have carefully considered the charge and the answers of the Court to the defendant’s points, and we perceive no error in them.

This disposes of all the errors assigned, except the 10th and last, which is that the Court sent out the jury to make up another verdict after one in writing had been given in. The verdict signed by the jury, as first offered to the Court, was in these words: “ This jury find the defendant guilty in manner and form as he stands indietedwhich the Court might have moulded into form in the presence and with the consent of the jury, for it was a substantial finding for the plaintiff. They refused, however, to receive the verdict, and sfent the jury out to deliberate again. There was no error in this, and the course pursued was more favorable to the defendant than that which might have been adopted.

The judgment is affirmed.,


source: Caselaw Access Project

author: Woodward, J.

license: Public Domain

text:
    Messner versus Lancaster County.
    1. A bond was conditioned for the payment to the county of the one-third part of the expense of erecting a bridge “ when the superstructure shall be completed,” it being stated in the bond that the contribution induced the commissioners to agree to the building of the bridge. In the agreement with the contractor of the same date, it was stipulated that the county pay a specified sum for the erection of the bridge, retaining a definite amount “until the completion of the work, that is to say, until the same shall be approved and passed by men to be appointed by the Court according to law.”

      Held, that the superstructure was to be considered as complete when approved of by the viewers, notwithstanding some portions of the contract, sucli as whitewashing of a portion of the bridge, and some of the filling remained unfinished. For such deficiency the obligor might have been entitled to a deduction from the amount unpaid on the bond.
    2. Any error in the admission of parol evidence of the price of the bridge was cured by the production of the written contract.
    Error to the Common Pleas of Lancaster county.

    The county of Lancaster brought suit to November Term, 1852, against Isaac Messner, on a bond, dated 22d April, 1851, executed by him and Richard Davis to the county of Lancaster in the penal sum of $>716.66, conditioned for the payment to the said county of the one-third part of the expense of erecting a bridge over Muddy creek in said county, “ when the superstructure shall be completed.” It was stated in the bond that the “proffered contribution” was the inducement which moved the county commissioners to agree to the building of the bridge.
    In the agreement between the contractor and the county for the building of the bridge, of the same date as the bond in suit, there were specifications as to the character of the bridge to be built; the timber was to be of good quality, and the whole of the bridge to be whitewashed; the abutments were to be well grouted with strong lime, and the rest of the walling to be well mortared, &c. the joints to be pointed from the surface of the ground to the top of the walls, to be filled in with earth or gravel so as to make it easy of ascent or descent. The bridge was to be subject at all times to such alterations as the commissioners of Lancaster county might from time to time direct.
    On the part of the county it was agreed that the county pay tc the contractor $1075 in monthly payments, retaining $350 of the last payment “ until the completion of the work, that is to say, until the same shall be approved and passed by men to be appointed by the Court_ according to law.”
    Three persons appointed by the Court reported that they had viewed the bridge, and considered that the same had been erected of good and substantial material, in a proper and workmanlike manner, and therefore they approved of it. Their report was dated the 14th November, 1851.
    Partial payments had been made on the bond.
    On the trial, after the bond was read, it was offered on the part of the plaintiff, to prove the contract price for building the bridge. It was objected that the contract was in writing. The evidence was admitted. The contract was afterwards read.
    It was proved that the superstructure was finished in November, 1851; that the sides were whitewashed, but the gable ends were not. The witness said the matter was settled with the contractor so far as he knew.
    On the part of the defendant, it was offered to prove that the superstructure was not finished according to the contract, and that when the viewers examined it, the bridge could not be driven over. Objected to, but admitted. It was testified that the filling was not done when the viewers examined it. "That the ends of the bridge were not whitewashed, and the gable ends not plastered, &c. The superstructure was finished when the viewers were present, but the filling was commenced in the week following.
    Another witness stated that the contractor did not finish the abutments; that though the bridge had been used since November, 1851, the last filling was not put in till November, 1853, and that it was not done by the contractor.
    Long, J., charged that the bond did not warrant the conclusion that the bridge was to be erected according to the contract between the county and the contractor; and if it did, that there was a clause in the contract authorizing the commissioners to make alterations ; and if the bridge were not built according to contract, the jury, after the report had been approved by the Court and the money paid by the commissioners, would be justified in supposing that if any alteration was made, it was done by consent of the commissioners. He further said that if there were defects in the bridge, the defendants might be allowed a deduction on their account, as he considered that the commissioners were bound to have erected a bridge suitable to the place.
    May 24, 1853, verdict for .plaintiff for $96.90.

      Error was assigned to the admission of the parol evidence, as to the contract price for erecting the bridge; and secondly, to the portion of the charge before specified.

      AmwaJce, for plaintiff in error.
    Ns helman, for the eounty, the Court declined to hear.
   The opinion of the Court was delivered by

Woodward, J.

The obligation of the defendant was to pay to the county of Lancaster one-third part of the whole expense of erecting a bridge across Muddy creek, “ when the superstructure shall he completed” The contract between the county and the builder of the bridge, of the same date with the obligation of the defendant, stipulated for a bridge of specified dimensions and workmanship, with the right of the county to make alterations from time to time, and for the payment of $1075 as the full consideration, retaining in their hands $350 “ until the completion of the work, that is to say, until the same shall be approved and passed by men to be appointed by the Court according to law.” The bond of the defendant, and this contract between the commissioners and Shaffer, the builder, though distinct instruments, were dependent, for the bond recites that the proffered contribution of the defendant was the inducement which moved the commissioners to agree to build the bridge.

Now when can it be said that the superstructure of a bridge built under such agreements is complete? Manifestly when viewers appointed by the Court pronounce it finished, which viewers so appointed did do on the 14th day of November, 1851. On that day then the defendant’s liability attached, which can be discharged ■only by his paying what remains due on his bond. Notwithstanding some whitewashing, pointing of walls, and filling in of embankments remained to be done when the viewers were there, the evidence proved what the certificate of the viewers verified, that the structure was complete, and we think the Court put the case to the jury quite as favorably for the defendant as he deserved. When a man induces a county to undertake the erection of a bridge, by promising to pay one-third of its cost on completion of its superstructure, and its completion is ascertained in the manner stipulated in the contract which he induced the eounty to make, he is as nearly destitute of a defence as it is possible for a litigant to be. There is no lack of consideration for his promise, and I see not how he can expect to escape performance of it.

If there was any error in admitting the testimony of Peter G. Eberman as to the price of the bridge, it was cured by the subsequent production in evidence of the contract itself.

The judgment is affirmed.


text:
    Cottrell’s Appeal—Bowers’ Estate.
    1. Subrogation being founded on principles of equity may be enforced where there is no contract for a transfer of the security.
    2. To prevent a sale upon execution the defendant in the judgment gave to the judgment-creditor a promissory note with an endorser for the amount of his claim and received the single bill on which the judgment was founded. The note having been discounted was ultimately paid to the bank by the endorser thereon, and he afterwards procured from the creditor an assignment of the judgment on which satisfaction had not been entered. Held, that the endorser was entitled to payment of the judgment in preference to a subsequent judgment entered previous to the giving of the note.
    Appeal by J. W. Cottrell from the decree of the Common Pleas of Lancaster county, directing distribution of proceeds of sale of real estate of A. Bowers.
    Ephraim Hershey had a judgment v. Bowers, entered to January Term 1850; and Cottrell had a judgment against the same defendant to January Term 1852. In December, 1852, the property of Bowers was advertised for sale under execution issued on Hershey’s judgment; and Hershey agreed to stop the sale if Bowers gave him security for the amount of his judgment. Bowers proposed Isaac Pusey as “ security.” Bowers, in that month, gave to Hershey a negotiable note which was endorsed by Isaac Pusey. It was payable at sixty days, and was for an amount exceeding $700. Hershey stated his impression to be that on receiving the note he handed to Bowers the single bill on which his judgment was founded. On, inquiry of Bowers as to entering satisfaction of the judgment, the latter suggested that it remain as it was. Hershey stated that he took the note as a payment of his claim. Nothing was said at the time about his transferring the judgment to Pusey. The note was discounted at bank, and the proceeds received by Hershey. The note not being paid was protested, but was subsequently paid by Pusey. Afterwards, viz. on 19th May, 1858, Pusey procured from Hershey an assignment of the judgment, and claimed payment out of the proceeds of sale of Bowers’ real estate. This was opposed by Cottrell. The auditor appointed reported in favor of Pusey, and exception being taken, the report was confirmed.
    It was excepted that the Court erred in treating the judgment of Hershey as a valid judgment after it had been paid; and in not directing the payment of Cottrell’s judgment.

      Ellmaker, for plaintiff in error.
    Hershey and Bowers settled with each other, and the judgment debt was extinguished. It did not appear that Pusey endorsed the note under any agreement for the assignment of the judgment. There was no evidence that Pusey was a surety — and there may have been such dealing between Pusey and Bowers as induced Pusey to put his name on the note; and if he lost by so doing, he could not resuscitate a debt extinguished previously.
    Stevens, contó.
    The right of substitution does not depend on contract between the parties, but is founded in equity: 6 Watts 221, Kyner v. Kyner. It applies where one, not a mere volunteer, pays the debt of another: 5 Barr 103, Wallace’s Appeal; 2 U. S. Dig. of 1848. Though actual payment discharges a judgment or other encumbrance at law, it may subsist in equity when justice requires it: 2 Rawle 128, Fleming v. Beaver; 9 Barr 498, Morris v. Oakford; 1 Barr 512; 1 Jones 531; 1 Pa. Rep. 395.
   The opinion of the Court was delivered by

Woodward, J.

Subrogation is founded on principles of equity and benevolence, and may be decreed where no contract or privity of any kind exists between the parties. Wherever one not a mere volunteer discharges the debt of another, he is entitled to all the remedies which the creditor possessed against the debtor. Actual payment discharges a judgment or other encumbrance at law, but where justice requires it we keep it afoot in equity for the safety of the paying surety. These principles, settled in numerous cases, which will be found collected in 2 Wharton’s Digest 612, are decisive against this appellant.

There is nothing in the argument that Hershey’s judgment had been extinguished. It was paid to be sure, and this was necessary to entitle the surety to subrogation, for substitution of a surety is never allowed where anything remains due to the principal; Keyner v. Keyner, 6 Watts 221; Bank of Pennsylvania v. Potius, 10 Watts 148; but it was not satisfied on record, and was finally assigned voluntarily by Hershey to Pusey, who acquired, thus, a legal title as well as an equitable right to it as a means of indemnity.

We are of opinion the Court were right in confirming the distribution made by the auditor, and the decree is accordingly affirmed.

Lewis, J., dissented.


author: Lowrie, J.

text:
    Malone versus Dobbins.
    1. Where a testator gave to his son John $500 as an advancement and afterwards made his will devising all his estate equally among his seven children, in which he refers to the fact of the advancement and then says, “ further I will that, if my estate amounts to more than seven times five hundred dollars, my son John is to have a proportional part of it.” Held, that John was entitled to nothing until the other children received $500 each, and that in all beyond that he was entitled to share equally with them.
    2. Where the meaning of a will is doubtful, the rule of equality among children may be taken as a guide of the interpretation.
    Error, to the Common Pleas of Blair county.

    Debt on recognisance given in the Orphans’ Court to pay to tho plaintiff, Isabella Dobbins, the amount due her on the partition of the real estate of her father, Charles Malone, who died leaving seven children. The defendant below, John Malone, is one of them, and he took the land at the valuation, and the only question in the cause relates to the interest of the several children under their father’s will, which defines the interest of each in the recognisance. The will, dated June 4, 1832, gives all his property to his seven children equally, and adds, “whereas I promised my son John $500 shortly after he was married, and for which sum he holds my note or obligation, and $472 of which I have paid; the residue being $28 will be one of my just debts. And further, I will that if my estate amounts to more than seven times $500, my son John is to have a proportional part of it.”
    The plaintiff also produced in evidence a receipt of John to his father, dated February 5,1818, for $500, which contained a release of all his right as heir of his father’s property. The estate of the testator not amounting to seven times $500, the plaintiff contended that John was fully advanced, and therefore had no interest in the recognisance, and that she ivas entitled to one-sixth of it, and so the Court below decided, and the defendant sued out this writ of error.

      T. Banks, for plaintiff in error.

      Blair, contrd.
   The opinion of the Court was delivered by

Lowrie, J.

This will is certainly not very clear; but the reference to John’s' advancement must have a purpose in it, and it must indicate some qualifying intention concerning John’s share. , It is very plain that it does not increase the share granted to him in the general devising clause, and this inclines us to suppose that it is intended to reduce the apparent effect of that clause; and the form of the qualification rather tends to confirm this supposition, for he says that John shall have a proportional share of his estate, if it exceeds seven times $500, which involves the thought that otherwise his advancement was to stand for his share. The intention seems to he that all his children are to share his estate equally, the amount advanced to John being considered as so much on his share. And the very obscurity of this will would incline us to this construction, on the principle that, in doubtful cases, the heir has the advantage, or those claiming equality among children.

It is manifest that this will in its principal part pursues some book of forms, and all the difficulty arises in the attempt to frame and fit in the special clause about John’s advancement. It is an ill contrived patch, but we think that we see the defect it was intended to cover.

This interpretation excludes John from any share of the estate under the will, because it was not large enough to give the other children shares equal to his advancement; yet he was a party to the partition of the real estate. We do not see that this subsequent fact can be regarded in interpreting the intention of the testator.

Judgment affirmed.


author: Lewis, J.

text:
    Long’s Appeal.
    There is no priority as to payment between several writs of foreign attachment served or levied on the same day on personal or real estate.
    Appeal from the decree of the Common Pleas of Huntingdon county, directing distribution of the proceeds of sale of real and personal property of E. F. Shoenberger.
    E. E. Shoenberger was in failing circumstances on the 28th January, 1850. Judgments had been obtained against him, and some writs of ft. fa. were issued. On that day eight writs of foreign attachment were issued against him, numbered from 4 to 11, inclusive, of April Term, 1850. They were all delivered to the sheriff in the afternoon and evening of the 28th January, before any 'service had been made of either of them. They were delivered in the order in which they were respectively numbered. The places where service was to be made were some miles in the country. The sheriff returned them, except Nos. 9 and 11, as served and executed in the order in which they were numbered. Thus, No. 4 was endorsed as served on the 28th January, 1850, at 12 o’clock and 30 minutes; No. 5 at 12 o’clock and 57 minutes; No. 6 at 1 o’clock and 5 minutes; No. 9 at 12 o’clock and 30 minutes; No. 10 at 1 o clock and 12 minutes; No. 11 on 29th January, 1850, without stating any fraction of a day. In a schedule to one of the writs, the property attached was stated as located at different places, viz., a carriage at Huntingdon; 1200 cords of wood (in two jobs); a lot of wheat at James Myton’s; and the service was stated to have been made on the 29th January, at 1 o’clock and 8 minutes, &c.
    The auditor appointed reported a distribution of the proceeds of sale amongst the several attachments pro rata in proportion to the amounts of the judgments obtained in each case. Ilis report was confirmed.
    Appeal was taken by Long, the plaintiff in writ No. 6.
    It was, inter alia, excepted — 1. That the Court erred in directing distribution pro rata, in opposition to the sheriff’s return; 2. In directing distribution of the fund arising from the sale of the real and personal property in the same manner; 3. That as to land attached by several creditors simultaneously, each one acquires a lien on one undivided moiety thereof.
    In the 43d section of the Act of 13th June, 1836, the form of a writ of foreign attachment is prescribed. In the 44th section it is provided that such a writ may be issued against the real or personal estate of any person not residing within this Commonwealth, and not being within the county in which such writ shall issue at the time of the issuing thereof. Sec. 50. “ The goods and effects of the defendant in the attachment, in the hands of the garnishee, shall, “ after such service, be bound by such writ, and be in the officer’s power,” &c. Sec. 51. Every writ of attachment executed upon real estate shall bind the same, as against purchasers and mortgagees, from the time of the execution thereof; and it shall be the duty of the sheriff to file in the office of the prothonotary of the Court a description of the property attached, &c.
    A writ of foreign attachment executed upon real estate binds it against judgments subsequently obtained: 2 Harris 326, Schacklett and Glyde’s Appeal.

      Hofius, Coffee, Cresswell, Thompson, and Petrilcen, were concerned for different creditors.
    As to the first exception, the 50th and 51st sections of the Act of June, 1836, before referred to, were cited. Also, 1 Kent 247; 8 Conn. 332; 7 Id. 271; 3 Id. 168; 4 Day 81; 2 Kent 403, in note; 13 Mass. 128; 16 Id. 181; 13 Id. 114; 2 Amer. Law Reg. 253. It was alleged that the rule of the common law which rejects fractions of a day, was restricted to judgments: 3 Pa. Rep. 245; 8 W. & Ser. 307; 2 Metcalf 510.
    As to the 2d exception were cited the 50th and 51st sections of the Act of 13th June, 1850.
    As to the 3d exception were cited 19 Pick. 544; 14 Id. 413; 13 Mass 529; Co. Litt. 21, note 126; 5 Coke 25; Plowden’s Com. 541.

      Miles, contó.
    It was alleged that all the writs were executed at the same time. But if they were served at different times on the same day, there was no priority between them as to payment. There are no fractions of a day unless to prevent great mischief or inconvenience: 2 Brown 19; 2 Wh. Dig. 660; or in case of necessity: 1 Ser. & R. 412, 14. In regard to judgments entered on the same day there is no priority of lien. By the common law there is wnity in respect to the day as a point of time: 3 Pa. Rep. 248. The statute does not sanction memorandums on the docket as to the time of entry, which it does not enjoin: Gibson, J., Id. 246; and the entries may lead to difficulty: 3 Pa. Rep. 347.
    If priority existed as to personal property which was capable of seizure, the principle is inapplicable to land, and a portion of the proceeds for distribution arose from the sale of -land.
    3. The cases in Pickering and Massachusetts Reports are inapplicable to our system of attachments. In Massachusetts and Connecticut foreign attachment process is in the nature of an execution. In Pennsylvania it is designed to compel the appearance of the non-resident debtor.
   The opinion of the Court was delivered by

Lewis, J.

It is a principle of the common law, that in judicial and other public proceedings there are no fractions of a day, and that all transactions of the same day are, in general, regarded as occurring at the same instant of time. This principle has been established from necessity and from a regard to public convenience. In most cases it is a matter of indifference at what particular instant of time an event took place. The day of its occurrence is an approximation to exactness, which, in general, answers all necessary purposes in administering justice. It frequently happens that the circumstances of a ease take place at points distant from each other, and so ■ near the same instant of time, that neither timepieces nor human memory can be relied on to determine the exact order of their occurrence. For this reason the law does not permit the inquiry unless under the pressure of absolute necessity. To prevent gross injustice, the order of events will always be investigated. But neither necessity nor justice requires that one creditor should be aided in seizing all the assets of his debtor, to the entire exclusion of others equally meritorious. For this reason, where judgments are entered on the same day, the law will not inquire into the order of their entry, but all will be regarded as having been entered at the same time, and the money raised by the sale of the debtor’s property will be divided pro rata between them: Lord Porchester’s case, cited in Pugh v. Robinson, 1 T. R. 118; Steele v. Taggart, P. A. Brown’s Rep. 20; Emerick v. Garwood, Id.; Metzler v. Kilgore, 3 Penna. Rep. 247. In the last case cited it was held that it would be “ attended with infinite danger to fix the instant of the rendition of a. judgment by parol proof, a recourse to which can be justified only by an overruling necessity.”

It is true that writs of fieri facias are paid out of the personal estate of the debtor, in the order in which they are delivered to the sheriff. But this is a departure from the principle already indicated, and rests upon usage, sanctioned by Act of Assembly, and not upon principle: 3 Penna. Rep. 247, Act 16 June, 1836. That the practice of inquiring into the exact moment of delivering writs to the sheriff, was contrary to the true construction of the statute of “frauds and perjuries,” is evident from the words of the statute itself. Its directions in regard to the delivery of writs to the sheriff are precisely similar to those given relative to the entry of judgments. In both cases it is enjoined that “ the day of the month and year” shall be noted. As this was all that the statute required^ phe act of the officer in noting the minute or hour being unauthorized, would be nugatory, and is evidence of nothing. As the plain object of the statute was to exclude the dangers of parol evidence, and the “frauds and perjuries” to which it might lead, the practice which permitted such evidence was founded on a palpable misconstruction of the statute. This is the more glaring when it is compared with the settled construction of the same language in the same statute, taken when used in relation to the entry of judgments. When it is considered that in Philadelphia there are five different Courts, in Pittsburgh four, and in Williamsport three, it is clear that in every close race for priority in the entry of judgments, there is so much difference in the instruments for measuring time as to render it absolutely impossible to do justice upon the fractional principle. If this difficulty has been regarded as insurmountable in the case of judgments, which, with the exceptions noticed, can be entered at one place only in the county, and where the means exist of noting the instant of time at which each entry was made, what shall be said of the difficulties in ascertaining the moment of executing writs of foreign attachments ? Those writs may be placed in the hands of different deputies, each of whom may be actively engaged in seizing different parcels of the debtor’s property, in different parts of the county. With ill-regulated time-pieces, set by different standards, and without convenient means for recording with accuracy the instant of executing each writ, or of seizing each portion of property, it is not at all probable that, in the hurry and excitement of this peculiar duty, the time would be noted with such accuracy as to enable the Courts to give to each attachment its priority on the fractional principle. The difficulties in the application of that principle to foreign attachments, are much, greater than could flow from its operation upon judgments. For what great and necessary purpose shall these insurmountable obstacles be encountered ? What paramount object of public utility can be promoted which shall counterpoise the dangers of fraud and perjury to which we should be exposed by adopting the fractional principle ? Where all the competitors arrive at the goal within a few minutes of each other, the race is too close to concede to either any merit on the ground of superior vigilance. The presumption is that the debts are all equally-just, and if so, the principle of equity requires that they should all participate equally in the remnant of their debtor’s property. So that the introduction of the fractional principle, so far from being justified by unavoidable necessity for the purpose of doing justice, would be productive of the gross injustice of giving a monopoly of the assets to one creditor, to the total exclusion of other claims equally just. Thus the wholesome principle of the common law wmuld be departed from for a purpose which a chancellor would never lend his aid to accomplish.

In this case the exact minute of service is noted on all the writs except me. If we adopt the rule of priority, what place shall be assigned to the writ last mentioned ? Shall it come in first, or last, or at some intermediate position ? It is evident that an order placing it upon any other footing than the common and just one of perfect equality, would be merely arbitrary. In domestic attachments the rule of equality prevails, and this is the reason why the Courts, in a doubtful conflict between a foreign and domestic attachment, always sustain the latter. It is not clear, however, that the legislature intended to make the distinction which prevails in foreign attachments, in the distribution of the debtor’s assets. The language of the statute would seem to give to these attachments priority over “ subsequent purchasers and mortgagees only.” There is reason and justice in this preference. Any one who advances his money upon property which he knows is already encumbered, ought to be postponed. On the other hand, if one purchases and pays his money for an estate which is unencumbered at the time, it would be injustice too monstrous to be thought of for a moment, to allow an encumbrance created afterwards to destroy his rights. Between a judgment and a conveyance there can be no pro rata distribution. Justice absolutely requires an investigation into the order of these transactions, and it is always done: Mechanics’ Bank v. Gorman, 2 Harris 308. In this there is no violation whatever of the rule stated by Chief Justice Tilgiiman in Sims v. Hampton, 1 Ser. & R. 412, that “ there shall be no fractions of a day except in a case of necessity.” In all cases where necessity requires it, the rule is dispensed with, in order that injustice may not be done. No such necessity exists in the present case, and the rule of the common law must therefore prevail.

The judgment in Case v. Case, noticed in 2 American Law Register 253, is supposed to stand in conflict with the doctrine of the present decision. There is no such case. There was an appeal by Yelverton and Fellows from the decree distributing the proceeds arising from the sale of Isaac H. Case’s personal estate. The decision was made in October, 1851. We have caused the records to be searched for the opinion, but it cannot be found. We do not know the grounds of the decision; but as it was never reported, there has been no practice under it which, ought to prevent the correction of a clear mistake in the law.

The decree distributing the money among the attachments pro rata is affirmed.

Decree of distribution affirmed.

Knox, J., dissented as to the money raised from the sale of the personal property attached.


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    Beigh’s Road.
    1. If the statement on the draft of a road of the names of the owners of the land through which it passes be not a sufficient noting of the improvements, the remedy was an application for the recommitment of the report to the viewers for correction.
    2. A mere clerical error in the order as to the number of viewers necessary to concur in the report is not material.
    3. Viewers, under a special Act applicable to Peny county only, having fixed the width of a road at twenty-five feet, and their report having been confirmed generally, the report was not disturbed by this Court on account of its width.
    4. The viewers having power to fix the width of the road no direction by the Court in regard to its width was necessary.
    5. No confirmation nisi is necessary, where, at the Term to which the report is made, reviewers were appointed.
    6. The confirmation of the report was in effect an order that the road be opened; and the width being fixed in the report it was proper in the clerk to certify it, in the order, as being the act and judgment of the Court.
    7. Though the Court erred in supposing that the road reported by the first viewers and the re-reviewers was identical, their decree confirming the road reported by the viewers was not on that account invalid. The Court had no power to alter either report — but were to confirm one or the other, or to reject both.
    Certiorari to the Quarter Sessions of Perry county.

    ■ At October Sessions, 1852, a petition was presented relative to a road to lead from a point at John Beigh’s barn, on the road from Harrisburg to Northumberland, to a point at John Low’s, &c.
    By Act of 17th April, 1846, it was enacted that thereafter the number of viewers appointed by the Court of Quarter . Sessions of the county of Perry shall be three, all of whom are to view, but a majority may report; and by the 2d section it was provided that “ The viewers so appointed shall have power to decide upon and fix the width of the road viewed or reviewed by them, and shall report the same” to the Court: Acts of 1846, p. 363. Though in the order to the viewers it was directed that if any four of the viewers concur, they shall make report, yet only three viewers were appointed; and they reported that all of them had viewed and laid out a road, beginning at the barn of John Beigh, &c., stating courses and distances to the public road near John Low, a draft whereof was annexed.
    Road to be twenty-five feet wide.
    The report was filed on 3d January, 1853. At January Sessions reviewers were appointed who reported a road having other courses and distances than the road reported by the viewers. This report was filed on 7th April, 1853, and was on 9th April, 1853, approved nisi. At August Sessions re-reviewers were appointed, whose report was filed on 31st October, 1853. They reported in favor of a road, and to their report a draft was annexed, and they fixed the road at thirty-three feet in width.
    On the back of the order to the re-reviewers was endorsed, “ 3 November, 1853, the first report confirmed.”
    On the inside of the report of the viewers it was marked, “ 3 November, 1853, reviewers and re-reviewers having been appointed, and the first and last view having placed the road on the same ground, this report is confirmed.”
    There were seven errors assigned, none of which it was alleged in the counter statement were assigned as exceptions in the Court below. The first was, that in the report there was no allusion to improvements, nor were they specially mentioned in the draft. It was alleged that the names of the owners of land are stated, but it was not stated whether the land was improved or not. The second had mainly reference to the allegation in the order that four viewers were required to concur in the report. In the third it was alleged that the viewers had not properly fixed and reported the width of the road; and it was afterwards intimated that the width of the road should have been embodied in the report, and not added as supplementary or as an appendix to it. In the fourth it was objected that the Court had not, at the Term to which the report was made, approved of the width of the road as returned. In the fifth it was excepted that the Court had not made an order or decree that the road be opened. Sixth, That without such a decree the clerk could not issue an order to the supervisors to open the road. And the seventh referred to a mistake of the Court in supposing that the roads reported by the viewers and re-reviewers were located on the same ground; and in confirming the report of the viewers at the same term to which the re-reviewers reported.

      Hepburn, in support of the exceptions.

      Watts, contrá.
   The opinion of the Court was delivered by

Woodward, J.

We shall be sure to hit all the points in the appellant’s argument by noticing seriatim and in their order the several errors assigned.

1. The draft accompanying the report of the viewers contains the names of the owners through whose lands the road passes, and if this be not a sufficient “ noting briefly of the improvements,” the remedy was to apply to the Quarter Sessions to recommit the report and draft to the viewers for the purpose of having it perfected in this regard. In the case of the New Hanover Road, 6 Harris 224, this was said to be the universal and proper practice, and had not the Court conformed to it on demand or exception filed, that might have been assigned for error'; but without either an exception to the report, or a request of recommitment, there is no ground for the first error.

2. There is nothing in this assignment except a clerical error, amendable at any time, and wholly unimportant amended or not, for the law required but three viewers; but three were appointed, and they all viewed and reported.

3. The viewers fixed the width of the road at twenty-five feet in their report; and though it is usual to order roads to be laid out somewhat narrower where digging and bridging are required than in other places, yet where the general width is not more than twenty-five feet, a distinction is not necessary, for this is narrow enough even for places where digging and bridging are required.

4. The objection that there was no confirmation nisi at the Term to which the report of the viewers was filed, is answered by the fact that a review was awarded at that Term. That suspended any judgment on the report. The object of a nisi approval at the first Term is to give parties in interest an opportunity to apply for a review, and when at the same Term they have applied for and obtained the review, it is of no importance that the qualified approval was not entered of record. Where an- Act of Assembly authorizes the viewers to fix the width, as in Perry county, and they have done so in their report, no endorsement by the Court in regard to width is necessary.

5 and 6. These errors are answered by the record, which shows that the Court confirmed the report of the viewers, which they had a right to do, and which it often becomes expedient to do after review and re-review. That was in effect an order that the road should be opened according to the report of the viewers. But the objection that the order recites the width of the road as fixed by the Court, is too sharp. It was fixed by the viewers as their report proves. When that report had been confirmed by the Court, there was no inaccuracy in the clerk’s reciting it as the act and judgment of the Court.

7. The Court may have been mistaken in supposing that the viewers and re-reviewers had laid out precisely the same ground; or the thing meant may have been that the two sets had adopted very nearly and substantially the same ground, which is the ascertained fact. But what if the Court were under a misapprehension as to the identity of the routes ? This would not invalidate their decree in establishing that first laid out. The Court had no power to alter either report so as to make the two routes coincide absolutely. They were to confirm one or the other or reject both, and they proceeded regularly, and we are bound to presume on adequate reason, in confirming the first report.

None of the errors assigned having' been sustained, the decree of the Court is affirmed.


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    Hitner versus Ege.
    1. A husband cannot be tenant by the curtesy of his wife’s estate in reversion or remainder expectant on an estate of freehold unless the particular estate be ended during the coverture. '
    2. The wife having died during the lifetime of her mother, the widow of the intestate, her husband had no estate by curtesy in the third to which the widow was entitled during life; and on the death of the latter such third part descended to the heirs of the intestate unencumbered by any claim'on the part of the husband or his creditors.
    3. A tenant from year to year had authority to lay a pavement required by a borough ordinance to be made by the owner or occupier, and the expense thereof was chargeable against the tenant for life.
    4. But a tenant for years, if there be no agreement or statutory enactment in support of it, cannot charge ordinary repairs to his landlord by deducting them from his rent.
    Error to tbe Common Pleas of Cumberland county.

    This was an amicable action in which George W. Hitner was plaintiff, and George Ege was defendant.
    Elizabeth Ege, the wife of George Ege, the defendant, was the heir in fee to a lot of ground in Carlisle, subject to the dower of her mother, Sarah Miller. On the 11th May, 1830, George Ege executed a mortgage to secure to B. & W. Craighead the payment of $2000 with interest from date. The mortgage was sued to April Term, 1836, and a judgment was obtained thereon, for which a lev. fac. was issued to January Term, 1851. A levy being made upon the life estate of George Ege, George W. Hitner, in June, 1831, was appointed sequestrator. He leased the stone house to the said George Ege for the residue of that year and for the next two years. There were fire other tenements on the premises, all of which were leased by the sequestrator to different tenants who paid rents therefor, and two-thirds of all the rents were made payable to the said Hitner, and one-third to Sarah Miller, the widow. All the taxes assessed upon the premises for the year 1851 amounted to $52.17, and in 1852 to $50.49, and in 1853 to $24.75, in all to $127.41. These were paid by George Ege. Elizabeth Ege died on 6th December, 1848. Mrs. Sarah Miller died on the 1st of June, 1853. She received during her life, her share of the rents. During the term of the said leases, an ordinance' of the borough of Carlisle was • passed, requiring all persons, owners or occupiers of property, to pave the sidewalks in front of their houses with brick; and a notice of the ordinance was served on George Ege by the high constable, in obedience to which he had a pavement made in front of the said lot, which cost $77.61, which he paid. The said Ege also paid nineteen dollars and two cents for repairs to different buildings on the premises during the term.
    The defendant claimed to defalk the whole amount paid by him for the pavement and for the repairs, and resisted the plaintiff’s right to recover the whole amount of rent after the death of Mr. Sarah Miller.
    . Graham, J., in his opinion observed that though the widow of an intestate in Pennsylvania, before assignment of dower, is neither joint tenant or tenant in common, and cannot maintain partition or ejectment, yet her interest in her husband’s real estate is considered under our Acts of Assembly as realty: 3 W. & Ser. 558, Miller v. Leidig. In this case there having been no sale, the widow had the estate given by the intestate Acts: an estate for life in the one-third of the estate of which her husband died seised. The parties interested may waive an assignment of dower by metes and bonds, and may make an assignment of an undivided third part: 5 Bos. & Pul. 33, Rowe v. Power. A rent issuing out of land whereof a woman is dowable may be assigned for dower: 1 Cruise. 198.
    In this case the estate for life, or freehold estate in the widow, prevented the seisin of Mrs. Ege in the third, to which the widow was entitled; and on the death of the wife before the termination of the life estate, it descended to her children free of any curtesy estate. There can be no estate by the curtesy of a reversion or remainder expectant on an estate of freehold, unless the particular estate be determined during coverture: 1 Cruise 170; 4 Kent 29; 2 W. & Ser. 556, Shoemaker v. Walker.
    As to the payment for the pavement, he held that tenants in common must contribute for all necessary repairs, in proportion to their interest. He directed that the taxes and repairs, and the amount for paving, be deducted from the rent, and that judgment be entered for the plaintiff for two-thirds of the balance.

      It was assigned for error, — 1. That the Court erred in deciding that the plaintiff was not entitled to the whole amount of the rent after the death of Mrs. Miller. 2. In deciding that the defendant, had a right to defalk the price of the pavement made. 8. In deciding that the defendant had a right to defalk the amount of the other repairs.
    The case was submitted.
    Watts, with whom was Parker, for the plaintiff in error.
    In the printed argument it was contended that in Pennsylvania the heir was seised in fee of the whole of an intestate estate, subject to the interest of the widow: 5 Ser. & R. 536; 7 Watts 115; 2 Wharton 188. That the estate of the widow was not distiuct from that of the heir at law.
    Biddle, with whom was Gf-allagher, were for the defendant in error.
    By the Intestate Acts of 1794 and 1833, the widow, where children are left, is entitled to one-third of her husband’s real estate during her life. This estate may be afterwards converted by proceeding under the Intestate Acts: 3 Barr 70. In proceedings to make partition, the widow is entitled to her ’portion, to be laid off by metes and bounds, if it can be done by the inquest without prejudice: 7 W. & Ser. 251. The widow and children can dispense with formal ’partition. Mrs. Miller received during her life her share of the rents of the house and lot, with the consent of Ege and wife, and the sequestrator, and this was equivalent to a a partition, or assignment of dower at common law, as. stated in the case of 5 Bos. & Pul. 33.
   The opinion of the Court was delivered by

Lewis, J.

The husband cannot be tenant by the curtesy of the wife’s estate in reversion or remainder, unless thé particular estate be ended during coverture. The particular estate of Mrs. Miller was not ended during the lifetime of Mrs. Ege. The husband of Mrs. Ege was therefore not entitled to curtesy. The estate descended to the heirs unencumbered by any claim on the part of her husband or his creditors.

By the borough ordinance it is made .the duty of the “owner or occupier” to “pave the sidewalk, with brick, within three months” after the enactment. This duty may be enforced by a penalty. As Ege, the tenant, was thus bound to pave the sidewalk, it was not necessary that he should await the pleasure of his landlord in this respect. As a tenant from year to year, his term was too brief to justify the Court in charging him with the expense of the improvement, while the temporary character of the work, requiring repeated renewals during a lifetime, indicated the injustice of charging it upon the remaindermen or the reversioners. Such a structure is properly chargeable upon the tenant for life. Where the life estate is in the hands of a sequestrator, it is the duty of the latter to defray these charges out of the profits in the first place; but, as he is entitled to hold possession until “ all liens, and all charges for taxes, repairs, and expenses” are satisfied, the result is to charge the whole in the end upon the tenant for life.

A tenant for years, if there be no agreement or statute to the contrary, is bound for ordinary repairs, and cannot charge his landlord with them unless made at his request. If tenants were permitted to make such repairs as they pleased, and to deduct the Charges out of the rent, the estate of the landlord would be in the power of the tenant. The Court of Common Pleas was in error in deducting the sum of $19.02 from the rent. The other two assignments of error are not sustained.

The judgment below was for the sum of $110.17. There should be added to this sum the $19.02 which the Court deducted for repairs. •

Judgment reversed and judgment for plaintiff in error for $129.19, with costs.


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    Fisher versus Seltzer.
    1. A bidder at sheriff’s sale has a right to retract his bid before the property is struck down to him, and the sheriff has no right to prescribe conditions which deprive him of such right.. '
    2. The bid having been withdrawn, the bidder was not liable even for the costs and charges of a future sale, though one of the conditions was to that effect. ’
    Error to the Common Pleas of Lebanon county.

    This was a suit in the name of Philip Fisher, late sheriff of Lebanon county, for the use of the Lancaster Bank, v. John C. Seltzer. It was brought to recover from the defendant the difference between the amount of his bid, when the real estate of Jonathan Wright was up for sale, and the price it sold for at a future Sale, and for costs, &c., of the sale.
    The real estate was subject to a mortgage for $6000, dated March 9, 1850, and recorded subsequently, viz., on 30th April, 1850. Martin Wingert obtained a judgment against Wright for above $3000, and judgments were afterward obtained by the Lancaster Bank and D. Moulfair. A fi. fa. was issued to April Term, 1852, which was levied on the mortgaged premises, and they were condemned. A vend. exp. was issued to November Term, 1852, on the judgment of Moulfair, and the sheriff returned that the property had been “ knocked down to John C. Seltzer” for the sum of $7000, but that he refused to sign the conditions of sale, and that the property remained unsold.
    An alias vend. exp. was issued to January Term, 1853, and the sheriff returned a sale to Martin Wingert for $1500.
    In the second condition of sale, at the time the bid was made by Seltzer, it was prescribed that “ no person shall retraet his or her bid.”
    In the sixth it was prescribed, that if the purchaser should neglect or fail to comply with the conditions, “ he shall pay all costs and charges.”
    A special verdict was rendered, in which it was stated, that previous to bidding Seltzer had been informed of the existence of the mortgage, but that he believed the property would be sold discharged of the mortgage; that on being informed by the crier that the land would be sold subject to the mortgage, he publicly retracted his bid. Notwithstanding the retraction, the property was struck down on his bid.
    The verdict was conditional, depending on the.question whether Seltzer could lawfully withdraw his bid.
    Pearson, J., expressed the opinion that, conditions may be annexed to sales at auction: Babington on Auctions 30. That one of the conditions in this case being the payment of “all costs and charges” in case of neglect or failure to comply, tiffs was the penalty prescribed in case of failure, — that by this was meant the legal costs and expenses of a second sale , and he directed judgment to be entered for the plaintiff for $40. "
    It was assigned for error that the Court erred in the construction of the sixth clause of the conditions of the sale by restricting the meaning of the words “ eosts and charges” to the mere costs and expenses of a second sale.
    The case was submitted.
    In the argument on part of the defendant in error, it was alleged that a sheriff has no right to impose any other conditions at a sale than the law imposes: 5 Barr 242, Randolph’s Appeal. That ordinarily a bidder has a right to retract his bid before the property is struck down: 3 Term Rep. 148. If the conditions were valid, they were binding on both parties: 19 Law Lib., Babington on Auctions 18; 6 Barr 486. In this case the obligation was not mutual and was void: 3 Term Rep. 653. By the terms “ costs, charges, and expenses” are meant such costs, &c., as Courts take notice of by their officer : 2 Wilson 268, referred to in 13 Ser. &. R. 79; 1 Ashmead 110.
   The opinion of the Court was delivered by,

Lewis, J.

Mutuality is so essential to the validity of contracts not under seal, that they cannot exist without it. A bid at auction, before the hammer falls, is like an offer before acceptance. In such a case there is no contract, and the bid may be withdrawn without liability or injury to any one. The brief interval between the bid and its acceptance is the reasonable time which the law allows for inquiry, consideration, correction of mistakes, and retraction. This privilege is of vital importance in sheriffs’ sales, where the rule of caveat emptor operates with all its vigor. It is necessary, in order that bidders may not be entrapped into liabilities never intended. Without it, prudent persons would be discouraged from attending these sales. It is the policy of the law to promote competition, and thus to produce the highest and best price which can be obtained. The interests of debtors and creditors are thus promoted. By the opposite course a creditor might occasionally gain an advantage, but an innocent man would suffer unjustly, and the general result would be disastrous. A bidder at sheriff’s sale has a right to withdraw his bid at any time before the property is struck down to him, and the sheriff has no authority to prescribe conditions which deprive Mm of that right. Where the bid is thus withdrawn before acceptance, there is no contract, and such a bidder cannot, in any sense, be regarded as a “purchaser.” He is, therefore, not liable for “the costs and charges” of a second sale. Where there has been no sale, there can be no re-sale. The judgment ought not to have been in favor of the plaintiff, even for “the costs and charges” of the second sale; but as the defendant does not complain, we do not disturb it.

Judgment affirmed.


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    Smith’s Appeal.
    A debtor’s real estate, sold at sheriff’s sale for above $900, was bound by judgments for debts contracted after and before the Exemption Act of 1849 took effect; and also by one the greater portion of which was for a debt contracted before such Act took effect:

      Held, that the portion of the fund exceeding $300 was to be applied to the judgments in their order of lien, or when entered on the same day and exceeding the amount of the fund beyond the $300, pro rata. As to the $300, the portion of the judgments which were for debts contracted before said Act took effect were entitled to payment out of it, and to the residue of the $300 the debtor was entitled in preference to the portion of the judgments for debts contracted after the Act took effect.
    Appeal from the decree of the Common Pleas of Mifflin county.

    This case was argued before, but no judgment was pronounced. Tbe real estate of Reuben Smith was levied upon, and was subsequently, viz., in January, 1851, sold on vend. exp. for $961— after deducting costs, there remained for distribution $941.50.
    After the levy was made, inquiry was made, at request of the defendant, whether the real estate could properly be divided according to the provisions of the Exemption Act of 9 th April, 1849, and it was determined that it could not be so divided. The Act of 1849, allowing a debtor to retain, exempt from execution, property to the amount of $300, or money from the sales to that amount, was not to take effect until the 4th July, 1849, and was to apply “only to debts contracted on and after that date.” Property to the amount of $300 not having been set apart to the defendant, the question was, whether he was entitled to a part of the proceeds of sale to the amount of $300, or a less amount. Before the auditor appointed, $300 was claimed for the debtor. The claim was resisted by creditors.
    At the time of the sale of the property, in January, 1851, it was bound by several judgments. The first two were entered on the same day, viz., judgment of George Guthrie, for Elder, v. Reuben Smith—entered November 30, 1849, for $257.60. Interest from November, 1849. David Candor v. Same—entered November 30,1849, for $400. Interest from day of entry. Next, judgment of R. C. Hale v. Same—entered August 4, 1850, for $146.53. Interest from 7th August, 1850. Another judgment followed, viz., judgment of Henry Smith — entered to November Term, 1850, for $200. Interest from October 12, 1850. Time of entry not stated.
    The judgment of Guthrie appeared to be for a debt contracted after 4th July, 1849. A part of Candor’s judgment, viz. $288.11, was for debts contracted before 4th July, 1849. All of Hale’s judgment was for a debt contracted before that day. The judgment of Henry Smith was for a debt contracted after that day.

    Thus: one of the two oldest judgments, viz., that of Guthrie, was for a debt contracted since the 4th July, 1849 ; and the subsequent judgment of Hale, the third in order, was for a debt contracted before that day.
    The auditor, in his report of distribution, entirely excluded the claim of the debtor.
    Exception was taken on the part of the debtor, that his claim for $300 had not been allowed. Wilson, J., was of opinion that Candor, so far as his claim was for a debt contracted before 4th July, 1849, viz., for $288.11, and the costs, amounting to $26.11, had a claim on the whole fund; and that, as Guthrie had no claim against the amount claimed by the debtor as exempted, that he (Guthrie) had a right to compel Candor to claim against the defendant out of the $300, and obtain payment of the portion of his claim against which the debtor had no exemption; or that Candor should claim so far as would leave a fund on which both Candor and Guthrie had liens sufficient to pay them two claims in full.

      Thus, the fund for distribution being - $941.50
    From this deduct the portion of Candor’s judgment contracted subsequent to 4th July, 1849, viz., $138.09; costs $26.11; in all - - $164.20
    Guthrie’s judgment, interest and costs - - 290.18
    $454.38
    Candor’s judgment for debt contracted before 4th July, 1849, viz. - - $288.11
    Hale’s judgment and costs - - 166.04
    In all....... $454.15
    --$908/58
    Leaving for the debtor only - - - - $ 32.97
    He decreed accordingly.
    It was excepted that the Court erred in not allowing the $300 claimed by the defendant, Reuben Smith.
    Woods, for appellant.
    It was contended that Candor, by mingling in one judgment his claim for debts contracted before and after the 4th July, 1849, was debarred from contesting the defendant’s claim to $300. The Court decided that Candor must first resort to the $300, which Guthrie could not, and by this means Guthrie will get his whole debt. This is in effect deciding that Guthrie, whose debt arose after the 4th July, 1849, has more equity than the debtor has under the Exemption Act. No process of subrogation should be resorted to to deprive him of such - right. In this case all of the debts contracted before the Act of 1849 took effect, can be paid, and $300 be left for the debtor. (Thus: Candor’s, $288.11; costs, $26.11; Hale’s, $166.04 — $480.26.)

      Qandor, contrá.
    The giving of the judgment to Candor was Smith’s voluntary act. The time of contracting the debts was shown by his four promissory notes: 2 Pa. Rep. 75; 2 Miles 18; 7 Barr 65; 3 W.& Ser. 233. The burden should lie on tho debtor to show w'hen the debt was contracted. By giving one judgment for all the debts, he waived his right to exemption: 4 Dallas 107.
    Black, C. J., was of opinion that the claim of the debtor should be entirely excluded; referring to the cases of Wilcox v. Waln, 10 Ser. & R. 380; Merchants’ and Manufacturers’ Bank v. Bank of Pennsylvania, 7 W. & Ser. 261; and to Bowyer’s Appeal, 9 Harris 210; but in order to determine the case he concurred in the decree delivered by Lewis, J.

      Knox, J., was of opinion that the debtor should be allowed his whole claim of $300, and the residue be distributed among the liens according to their priority of entry; but conceiving the opinion by Lewis, J., to be the least objectionable, he concurred in the decree proposed therein.
    Woodward, J., was of opinion that from .the fund of $941.50 for distribution, should first be taken the claims for debts contracted before 4th July, 1849, viz., part of Candor’s $288.11, and all of Hale’s $166.04, amounting together to $454.15. This amount being deducted from -the fund, would leave $487.35. From this he considered that the claim of the debtor to $300 should be taken, and the balance, of $187.35, be distributed pro rata between the judgment of Guthrie and the residue of that of Candor. He however acquiesced in the decree hereafter stated.
   The opinion of Lewis, J., under which the decree was entered, was as follows :—

Lewis, J.

The sum of $941.50 has been raised by the sheriff’s sale of Reuben Smith’s real estate and is in court for distribution. The difficulty in the case grows out of his claim to the sum of $300 ■under the exemption law. Setting that sum apart for the present, we have the residue — $641.50—to dispose of among the parties entitled; and it seems to require no argument to show that it ought to be appropriated to the judgment-creditors in the order of their liens upon the estate which produced it. As the judgments in favor of Candor and Guthrie are the two oldest liens, they are entitled to this money. As they were both entered on the same day, and amount to sufficient to exhaust this fund, it must be distributed between them pro rata. Thus far the case seems entirely clear of doubt or difficulty.

We come now to the $300 claimed by the debtor, under the exemption law. If the Act of 1849 is to be carried into effect, it is certain that the judgments entered upon debts contracted after the 4th July, 1849, cannot dispute the debtor’s right to this portion of the fund, no matter what may be the order of their liens. Their claims to this money are therefore out of question. The only judgments which can contest the debtor’s right, with any show of plausibility, are those founded on debts contracted before the 4th July, 1849. Those debts, according to the express provisions of the exemption law, are not in any manner affected by it. The two judgments in favor'of Candor and Hale, respectively, so far as they are founded on debts of this character, have a claim to the money superior of that of the debtor. Rut it appears that only a portion of the Candor judgment is founded on a debt of this grade. After crediting the money to be received under the pro rata distribution, already directed, there will be but a small sum due to Candor on that part of his judgment. That sum, together with the amount of the judgment in favor of Hale, must therefore be paid out of the three hundred dollars claimed by the debtor, and the residue of the fund is decreed to the latter.

In accordance with these principles, it is ordered and decreed that the sum of $941.50 in Court be distributed as follows:

To the judgment of George Guthrie, for the use of George W. Elder, No. 21, Janr., 1850, the sum of ..... $250.62

To the judgment of David Candor, No. 24, Janr., 1850, To judgment generally $390.88 To residue of debt contracted before 4 July, 1849, and costs 34.90 425.78

To the judgment of R. C. Hale, No. 148, April, 1850 ■ ...... 166.04

To Reuben Smith, the debtor, under the exemption law ...... 99.06

941.50


text:
    Ely versus Karmany.
    1. A paper under seal by which the obligor promised to pay to another a specified sum of money and confessed “judgment on the above sum with costs of suit,” was in construction of law a power to the prothonotary to enter judgment thereon under the provisions of the Act of 24th February, 1806.
    2. The entry of a judgment thereon in the Common Pleas of Lancaster county exhausted the power, and the entry of a second judgment thereon in Lebanon county was illegal and was properly vacated by the Court.
    Appeal from the decree of the Common Pleas of Lebanon county.

    Appeal by John Ely from the judgment of the Common Pleas of Lebanon county, directing the entry of a judgment to be stricken from the record.
    Henry G. Clark gave a note, as follows:—
    $2030.69. Mt. Joy Tp., Lancaster Co., Dec. 20, 1851.
    One day after date, for value received, I promise to pay John Ely, or bearer, two thousand thirty dollars and sixty-nine cents, with interest, without defalcation, and I do hereby confess judgment on the above sum with costs of suit, a release of all errors, and stay of execution until the day of payment. Witness my hand and seal, at Mount Joy Township, this 20th day of December, Anno Domini 1851.
    Attest: Moses Bowman. Henry G. Clark, [l. s.]
    At the time the note was executed, Henry G. Clark owned real estate, part of it lying in Lancaster county, and part in Lebanon county. On 27th December, 1851, judgment was entered on this note in Lancaster county — and on 29th December, 1851, another judgment on it was entered in Lebanon county ; in each case by the prothonotary or his deputy.
    On 6th January, 1852, Clark executed^. deed of trust to David M. Karmany, for the benefit of his creditors.
    Clark died on 5th February, 1853, and letters of administration on his estate were granted to the said David M. Karmany on 26th September, 1853. It was stated on the part of the appellee that for most of the time between the date of the note and his death, Clai’k was a resident of the borough of Lebanon, and it was alleged had not questioned the validity of the judgment entered in Lebanon county.
    On 26 th September, 1853, a petition of Karmany, the administrator, was presented to the Court for a rule to show cause why the judgment entered in Lebanon county should not be stricken from the records; and on November 15, 1853, the rule was made absolute.
    Appeal was taken on the part of John Ely, and exception was taken to the vacating of the judgment.

      Weidman and Punch, for appellant.
    It was, inter alia, said that the obligpr had a right to confess two judgments for the same debt, and that this instrument was not one containing a warrant to a prothonotary to enter judgment, though by the Act of 1806 it is made the duty of the prothonotary to enter judgments on such instruments. If the entry of the second judgment were irregular, it was said that Clark himself had not instituted any proceeding to have it set aside, and that the administrator of his estate was estopped. Clark’s estate is insolvent, and it was intimated that his assignee, under the deed of trust, was the proper person to institute proceedings to have it set aside, if erroneously entered.

      Kline and Boughter, for appellee.
    By the 28th section of the Act of 24th February, 1806, it is made the duty of the prothonotary of any Court, &c., on the application of any person, being the original holder (or assignee of such holder) of a note, bond, or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney-at-law or other person to confess judgment, to enter judgment against the person or persons who executed the same, &c. A judgment on warrant of attorney is, in contemplation of law, a judgment rendered by the Court: Gibson, J., 1 Penna. Rep. 251. The instrument became merged in the first judgment entered upon it. There was no proof made that Clark knew that the second judgment was entered. The administrator of his estate has the right to ask that the judgment be vacated: Lowber’s Appeal, 8 W. & Ser. 389
   The opinion of the Court was delivered by

Lewis, J.

The instrument on which the judgments were entered is, in construction of law, a power given to the prothonotary. He has no better right than an attorney-at-law to enter two judgments under a single warrant. The entry of the first judgment exhausts the power, and in this case the Court committed' no error in vacating the second.

Judgment affirmed.


text:
    Bland’s Administrator versus Umstead.
    1. All contracts are interpreted with reference to their subject-matter; and therefore a contract to perform certain duties growing out of an existing relation ceases to be binding when the relation ceases.
    2. Where adjoining land-owners make an agreement relative to the duty of each in maintaining a partition fence, and one of them dies, his administrator is not bound by the contract for any future repairs.
    Error to the Common Pleas of Berks county.

    This suit was commenced by Umstead against the administrator of Eland before a justice of the peace, and carried by appeal into Court, where the plaintiff got a judgment for $7.28, and the defendant brought this writ of error.
    Bland and Umstead were adjoining owners of land, and in 1844 they entered into a written agreement under seal, for the maintenance of a partition fence, each agreeing to maintain a specified half. In 1851 the part which Bland had contracted to keep up was swept away by a flood in the river Schuylkill, and, he being dead, Umstead gave notice to his administrators to restore it, which they neglected to do, and Umstead did it himself, and claimed to charge them for the expense.
    The defendants offered to prove that before the repairs became necessary, Bland had died, and his land had been sold and conveyed to others, and that his estate had been fully settled up and distributed. The overruling of this offer involved the whole principle of the case.

      Banks, for the plaintiff in errror,
    argued that the contract was intended only to settle the duties of the parties while they were conterminous proprietors, and referred to 7 Harris 227; 1 Devereux 16.

      Strong, contó,
    argued' that the contract- was personal and abso-. lute and survived against the administrators: 1 M. & W. 419 ; 10 Ad. & E. 42; Cro. Jac. 523; Cro. Eliz. 552; Comyn on L. & T. 270, 275.
   The opinion of the Court was delivered by

Lowrie, J.

We think that the principles which governed in the cases of Dickinson v. Callahan, 19 State Rep. 227, and Quain’s Appeal, 22 Id. 510, rule this case in favor of the defendant below. Neither of the parties binds his executor or administrator in the covenant; and if he had attempted it, we do not see very well how he could have succeeded. If the administrator is bound now, he must be hound in all time to come; but the law does not profess to keep up the representation of a dead man’s estate longer than is necessary to settle it.

Besides this, all contracts must he construed with reference to their subject-matter, and a contract defining an existing relation can have no operation when that relation ceases, for its foundation is gone. This is a contract intended to regulate the relation of adjoining owners, and it is involved in its very nature that it cannot last longer than the relation. We see no word indicating that it was for any other purpose, and we should misapply it entirely if we should treat it as a rule of duty for persons not standing in the contemplated relation.

Judgment reversed and a new trial awarded.


text:
    McIntyre versus Ramsey.
    1. After giving a life estate, the testator allowed the plantation, after the end of the life estate, to come to the next male heir nearest in kindred and relation to himself, “according to law, and so on in succession on that line.” Held, that the person who became seised of the remainder at the testator’s death was seised in fee simple.

    2. By the words according to law was meant that the estate should descend in the same manner the law would have given it to the heir of the testator; and the words “and so on in succession on that line” do not necessarily mean that the estate shall go to heirs of the body of the devisee, but simply to his heirs as contradistinguished from the heirs of the tenant of the life estate previously given.
    Error to the Common Pleas of Lancaster county.

    This was an amicable action in ejectment for a tract of 200 acres more or less, in which Milton McIntyre, a minor, was plaintiff, and William B. Bamsey was defendant. A case was stated for the opinion of the Court.
    William McIntyre, who was seised of the land in question, by his will dated 17th June, 1803, devised to his grandson William M. McCoy, the profits of the land to school and clothe him till he arrived at the age of 20 years: then, when he came to the age of 20 years, the testator gave the said land to his said grandson during his natural life ; and he further declared that, “ at the end of his life, I give and allow the plantation to come to the nixt mail heair neerest in kindred and relation to mee, according to law, and so on in sucksession on that line.”
    W. M. McCoy, the tenant for life, died in May, 1850, above the age of 21 years, leaving a daughter, but no male issue.
    The testator had issue five children; two sons, viz., Samuel, who died after the testator and before W. M. McCoy; and Hugh, and three daughters.
    Samuel, the first son, had issue — 1. William, who died about three months after his father, leaving his eldest son Samuel McIntyre, who died in 1851, leaving his eldest son Milton McIntyre, the plaintiff; 2. John, deceased; 3. Samuel, deceased; 4. Hugh, living; 5. Alexander, still living; and some daughters.
    II. Hugh McIntyre, the second son of testator, died before the testator, leaving issue one son, Elijah McIntyre, who died in 1852, leaving issue; and also three daughters.
    The three daughters of the testator were all dead, leaving issue.
    .The question submitted to the Court was, “what interest the parties had in the said tract of land, under the above-recited clause of testator’s will ? The plaintiff claims the whole, as heir in tail male of Samuel McIntyre, the oldest son of the testator. If, the plaintiff were entitled to the whole, then judgment to be entered in his favor accordingly; otherwise judgment for the defendant.”
    Long, J., expressed the opinion that a tenancy in special tail male was created, and he directed judgment to be entered for the plaintiff.
    Error was assigned to the judgment.

      Stevens, for plaintiff in error.
    The estate given to testator’s “next male heir,” nearest in kindred and relation to the testator and so on in succession in that line, vested in the person who answered the description at the time of the testator’s death: 2 Jarman 52-3; Powell on Dev. (21 Law Lib.) 166-7; 282-3-4. As to the meaning of the terms “next of kin” or “nearest of kindred,” reference was made to 2 Jarman 30-39. In this case Samuel answered all the requisites of the description; the property, therefore, vested in him. What estate had he? The words “next male heir” and “nearest of kin to me,” were intended evidently to indicate the first taker, and not to qualify the estate. If a female, equally, near of kin with Samuel, had succeeded him, she was to be excluded. The subsequent words show that it was to go to the heirs of the male line — not to the male heirs of that line, as contended for by the defendant in error. The usual words of inheritance are not here; nevertheless, apt words to convey a fee simple are used. If. the testator had said, I give it to the “male heir nearest of kin” at the time of my death, and to the heirs of that line, it would have meant the same as the present will, and would have given a fee simple to the first taker. The meaning of the words succession or successors must control this estate. The testator in effect says: “ I give and allow the plantation to whomsoever may be my next male heir at the time of my death, and to his successors.” Successors is the same as heirs, and creates a fee simple: 8 Viner 206; Id. 209. The whole scope and words of the will show that the estate was to vest in the person answering the description of next male heir, and then to descend to his heirs. It is therefore a fee simple, and judgment should be entered for the defendant below.

      Eranlclin, for defendant in error.
    It was admitted that the estate vested in the person answering the description at the time of the testator’s death, viz., his eldest and only surviving son, Samuel: Doe v. Spratt, 5 B. & Ald. 731; 27 E. C. L. 163; 3 East 288. Heir male is in such case a designatio personae, pointing to the special heir under the statute de donis, and not to the heir or heirs general: 1 Coke 66, Arthur’s Case; 2 Vernon 729; 5 Burr. 2617.
    It was further contended that the estate in remainder which vested in Samuel, was an estate in tail male, which became vested in Milton McIntyre, the plaintiff below, as heir in tail male of Samuel McIntyre. The intention of the testator is the cardinal point of inquiry: 4 Cruise 157; 2 Bin. 149; 7 Barr 16. All of the words of the devise are to be considered: 2 Williams on Exec. 931; 3 Yeates 187; 1 East 263. Successors means heirs: Swinburne 145-159. If successors means heirs, the words “ on that line” are to be disregarded in order to make the estate devised a fee simple. They can apply only to a fee tail: 8 W. & Ser. 38; 3 Bin. 374; 7 Taunton 85; 1 Ves. Sen. 521.
    Words of procreation are not necessary to limit an estate in tail. Any words indicating the testator’s intention to that effect are sufficient: Swinburne 166; 4 Cruise 268; 8 Viner 212; 1 Burr. 38. It is difficult to give a more correct description of an estate tail than by speaking of it as vesting iu the male heir, and passing on in succession on that line. The expression “ on that line” is a phrase of restraining import; used to impose a precise limit to the previous general expression of male heir. It was in conclusion intimated that an intention was manifested in the devise to limit the estate to the issue of the first taker.
   The opinion of the Court was delivered by

Lewis, J.

After giving a life estate to McCoy, the testator allows “the plantation to come to the nixt mail heair neerest in kindred and relation to mee, according to law, and so on in such- cession on that line.” The person who filled the description here given, at the time of the testator’s death, became seised of the estate in remainder. Was he seised in fee simple or fee tail male ?

The rule in England is that the heir at law is not to be disinherited except by express direction or necessary implication. That rule should be observed with more strictness here than in England, .because our laws of inheritance are more equal: 2 Bin. 20. “Entailments are recommended in monarchical governments as a protection to the power and influence of the landed aristocracy ; but such a policy has no application to republican establishments, where wealth does not form a permanent distinction, and under which every individual of every family has his equal rights and is equally invited by the genius of the institutions to depend upon his own merit and exertions4 Kent 20. As the rules of descent established by law are presumed to be founded on w'isdom, and as the policy of the law stands opposed to entailments, the remainderman must be deemed seised in fee simple, unless we are forced by the clear language of the will to give it some other construction. Words of procreation are as necessary to the creation of an estate tail as words of inheritance are to a fee simple: 2 Bl. Com. 114. Rut we have no words of procreation here. Even the. words which designate the first taker after the life estate, do not necessarily import that he must be one of the heirs of the testator’s body. He may be his “next male heir nearest in kindred” without being lineally descended from him. The words “ so on- in succession on that line” do not therefore necessarily mean that the estate shall go to the heirs of the body of the devisee. The words “according to law” are not to be rejected in the construction of this will. It is true that the testator may have meant that the law is to be regarded in ascertaining who is his next male heir nearest in kindred and relation to him; but he may also have meant that the estate shall come to him, in the same manner that the law would Lave given it to the heirs of the testator. We adopt this as the true meaning.. The words “ on that line” do not necessarily mean the male issue of the devisee, but simply his heirs as contradistinguished from the heirs of the tenant of the life estate previously given. If we created an estate tail by construction in this case, we must do it not only without words of procreation, but without any words which can supply their place. If the succession is not to be regulated according to law, but must be governed by the description given to designate the first taker after the life estate, the result would be inconvenient, and, as we think, contrary to the testator’s intent. Upon the death of every tenant it would be necessary to ascertain, not only his male heir, but the malé heir nearest in kindred and relation to the testator. This, in process of time, would become impossible. And yet this is the line we should be compelled to seek for if we departed from the rules of descent established by law. An estate tail is so readily docked, that we are not willing to suppose the testator had such an unimportant object in view, where his will does not clearly express it. We are of opinion that Samuel McIntyre, the son of the testator, was seised in fee simple of the remainder, and that the plaintiff in error is therefore entitled to judgment on the case stated.

Judgment reversed and judgment for the plaintiff in error.