author: Knox, J. Lewis, J.,

text:
    Porter versus Seiler.
    1. A case will not be reversed on account of an expression of opinion by the Court as to which of certain witnesses are most entitled to credit, or upon evidence in the case which, however, is submitted to the jury for its decision.
    2. In an action of trespass for injury inflicted by the defendant upon the plaintiff in an attempt by the plaintiff to take a horse and carriage from the possession of the defendant and another, it was competent and material for the plaintiff to show that he was authorized by the owner of the horse to take it from the possession of the defendant.
    3. Where the injury for which the action was brought was inflicted with a knife, it was not error in the Court to instruct the jury that if the attack was wanton and unprovoked and with a deadly wjpapon, they might give exemplary or even vindictive damages if necessary to repress the practice of carrying deadly or dangerous weapons, even though there was no proof of any such practice in the community. The direction was right without the reason, and the jury might infer that unless it were necessary to repress such practice vindictive damages should not be given.
    4. In an action of trespass for an injury inflicted with a knife evidence of his general good, peaceable character was not admissible on part of defendant for the purpose of rebutting malice. Evidence of character is not admissible in civil suits except where it is directly in issue, and where from, the nature of the issue such evidence is of special importance in the suit trying._ Whether the act charged or complained of be indictable or not is not material.
    5. In such an action there was offered on part of the defendant, without qualification but generally, the record of an indictment against him containing three counts, two of which were for assault and wounding with intent to kill and murder, and the third for assault and wounding, being the same occurrence as was the subject-matter of the suit trying, and in which proceeding the defendant was acquitted on the first two counts, and convicted upon the third and sentenced, it being stated by the judge to have been offered for the purpose of showing the punishment already received and of disproving an intention to kill: — ■
    It was Held not to have been error in the Oourt to charge that the record was strong evidence that an assault and battery had been committed, but that it was not conclusive that the defendant did not stab the plaintiff, as if the knife were not drawn and used till after the fight commenced and the blood became heated the killing would not have amounted to mwder; yet that the absence of an intention to kill did not shelter the defendant from civil responsibility to the party injured.
    Error to the Common Pleas of Dauphin county.

    This was an action of trespass vi et armis, by Dr. Christian Seiler v. Henry Porter, for a personal injury inflicted by the defendant upon the plaintiff. The declaration contained two counts, one for an assault on the plaintiff with a knife, with which he stabbed the plaintiff in his right side; and the other for an assault and battery. The plea at first was not guilty; but after the testimony was closed the plea of son assault demesne was added.
    On the evening of September 8th, 1850, H. Seiler took his father’s horse and carriage, and with H. Porter, the defendant, proceeded from Harrisburg up the river. Dr. Seiler, with another person, pursued the young men and passed them above town, and on reaching them on their return an affray took place, when the plaintiff was stabbed and seriously injured.
    It was proposed to prove, on part of plaintiff, that the horse and buggy was hitched up by II. Seiler, and that the defendant was then present — that it was taken without the consent of the owner, and that at his request the plaintiff- went to bring it back.
    This was objected to as irrelevant, but was received to show that the plaintiff had authority to stop the defendant in the road, and ■take possession of the property, he being interested therein, and it being illegally taken. Exception taken. — First bill.
    Testimony was given to the effect stated — the' owner of the horse and wagon stating that the plaintiff used the horse and wagon when he chose — that he told the plaintiff to go and bring the horse and wagon back and make the boys walk. He said the Doctor used the horse when he pleased. He said he first knew that the horse was gone when he went to feed him in the evening.
    J. Knepley testified, inter alia, that when the plaintiff caught the horse by the bridle, he told the defendant and the other ono with him that they must get out and walk, and that he was sent for the horse and wagon.
    In the course of the defence it was offered to prove the general character of the defendant — that it was uniformly good — that he was reported peaceable and orderly. This was offered for the purpose of rebutting any inference of malice. Objected to and overruled on the ground that the defendant’s character was not in issue.
    The record of the indictment of defendant and H. Seiler for the assault and injury in question, tried at January Sessions, 1851, was read on part of the defendant. The indictment contained three counts, the two first for an assault and battery with intent to kill and murder, and the third for an assault. The defendants were acquitted on the two first counts, and convicted upon the third, and were fined $100 and the costs.
    On part of the plaintiff, Knepley, the person who had gone with the plaintiff in the carriage and was present when the occurrence in question took' place, was examined; and, on the part of the defendant a witness, Tracey, was examined as to declarations of Dr. Seiler on the same evening after the occurrence. Other evidence was given.
    Pearson, President Judge, in the course of his charge, observed to the jury that they were the sole judges both of the credibility and correctness of the witnesses, but that he deemed it his duty to say that, supposing the two witnesses in question were equally worthy of credit, Knepley’s testimony was entitled to more.weight, as he was an eye-witness to the whole transaction, so far as the darkness nermitted him to observe it, whilst Tracey merely give the statement of the plaintiff, made in great haste, and in few words, and under excitement, and when in fear from the effect of his wound. Eor- other parts of the charge excepted to, see the assignment of errors.
    Yerdict was rendered for plaintiff for $2000 damages.
    It was assigned for error, — 1. That the Court erred in admitting the testimony stated in the first bill of exceptions. 2. In rejecting evidence of good character in defendant. 3. In charging as to the degree of credit of the two witnesses referred to. 4. In directing the jury to determine to what extent the defendant was injured in the affair, or whether he feigned greater suffering than he endured. 5. In charging that the record of the indictment and proceedings therein was “ strong evidence that an assault and battery was committed; that he did not consider it conclusive that defendant did not stab the plaintiff; and that it did not shelter the defendant from civil responsibility for the injury done.” 6. In charging that if the jury believed the attack on plaintiff was wanton and unprovoked, and with a deadly weapon, they could give exemplary or even vindictive damages, if they believed the same necessary to repress the practice of carrying and using deadly or dangerous weapons. (The Judge added, the question as to the amount of damages, or whether any should be given, was for the jury exclusively.)

      Porter, for plaintiff in error.
    That evidence of defendant’s general character was admissible, reference was made to 5 Cushing 295; 5 Porter 382; 3 Strobhart 517. It is admissible in mitigation of damages: 12 Modern 384; 9 Pick. 551; 1 Wil. Saunders 46 d; 7 Porter 106. Its admission may be restrained not only to charges of a malicious intention to kill, but to doubtful cases: 3 Greenleaf’s Ev. 25; Swift on Ev. 140; 5 Taunton 326; 1 Marsh. 168; Best on Pres. 286. The law of England distinguishes between cases where the character of the parties must necessarily be in issue, and where it is not. It is admissible where from the nature of the proceeding it is material: Best 244; 2 Starkie 304; 1 Strobhart 372: 3 Bibb 192; 1 Devereux 345; 3 Caine 120; 3 Espinasse Rep. 284; 1 Greenleaf, § 54; Buller N. P. 296; 2 Atkins 339; Best 214. The case of Nash v. Gilkeson, 5 Ser. & R. 352, was an action of assumpsit.

    In relation to the 4th assignment, it was said that there was no evidence that the defendant feigned greater suffering than he endured, and it was error to submit such a proposition to the jury.
    5th assignment. The record was evidence in mitigation of damages, (8 Barr 456,) but by the charge it was deprived of its value for that purpose. When it was offered the plea of not guilty was the only plea, and the record was admissible. 6th. There being no evidence of a practice in the community of carrying deadly weapons, it was error to submit such a view to the jury: 5 Watts 275; 6 Id. 74; 8 Id. 385; 10 Barr 363.

      McAllister and Bawn, for defendant in error.
    In civil eases evidence of defendant’s general character is not admissible, unless it is put in issue by the nature of the proceeding: 1 Starkie 303; 5 Ser. & R. 352, Nash v. Gilkeson; 10 Ser. & R. 55, Anderson’s Executors v. Long; 5 Watts 344; 3 Blackf. 155; 3 Penna. Rep. 49; 1 Camp. 460; 3 Id. 519; 2 Saunders Pl. 785; 1 Selwyn N. P. 35, note a; 5 Porter 382; 6 Harrison’s Dig. 2787; 8 W. & Ser. 376; 9 Barr 137; 2 B. & P. 532; 1 Greenleaf’s Ev. § 54, 55. This kind of evidence is inadmissible, where the general character is involved by the plea only, and not by the nahcre of the action. It is not admissible in actions for assault and battery, nor in assumpsit, nor in case for malicious prosecution, &c.
    In the narr. in this case there is no charge of an intention to hill. Good character is no shield against a claim for damages. The nature of the action determines whether evidence of character is admissible; and where from its nature, as in libel or slander, or by husband for the seduction of his wife, character is involved, it is admissible; otherwise not. In this case the defendant’s character was not directly involved, and a good character on his part would not restore strength to the plaintiff.
    Whether evidence of intention is admissible to affect the amount of damages, will depend on its materiality to the issue. In actions of trespass vi et armis, the secret intention of the defendant is immaterial.
    3d assignment. The degree of weight to be given by a judge in directing the jury to particular evidence' must be left to his discretion, which is not the subject of revision: McClel. & Y. 286; 4 Ch. Gen. Prac. 42; 11 Wendell 18; 10 Pick. 252; 8 Conn. 431; 8 Greenleaf 42; 1 Rep. Con. Ch. 216, Kinlock v. Palmer; 7 Ser. & R. 230.
    As to 5th assignment was cited 3 Whar. 274; 3 Rawle 172. In an indictment for assault and battery with intent to murder, where the killing would have amounted to manslaughter only, the defendant must be acquitted: Whar. C. L. 316; Lewis 98; 1 Russel 585. When the charge was given the plea of son assault demesne was in, and the case of Frederick v. Gilbert, 8 Barr 456, was applicable. That the record was not admissible in mitigation of damages was cited 4 Bibb 400. It was also said that the record was .not offered in mitigation of damages.
    As to the 6th assignment, reference was made to 4 Ser. & R. 27, Sommer v. Wilt; 5 W. 376, damages may be given not only to compensate but to punish; or for example: Id. 377. Also cited 1 Barr 197; 8 Id. 65; Sedgwick on the Law of Damages 39; 5 Day 144; 6 Conn. 508; 11 M. & W. 625; 1 Gall. 483.
   The opinion of the Court was delivered by

Knox, J.

This was an action of trespass vi et armis, brought by Christian Seiler v. Henry Porter, to recover damages for an alleged assault and battery. The declaration charges the assault and battery to have been committed by injuries inflicted with a knife of the defendant upon the person of the plaintiff. The plea was “not guilty,” to which was added after the evidence had closed, “ son assault demesne.” The verdict was for two thousand dollars, upon which judgment was rendered in the Common Pleas of Dauphin county.

In this Court six errors, are assigned. One to the admission of evidence offered by the plaintiff; one to the rejection of evidence offered by the defendant; and four to the instructions given by the Court to the jury in the general charge.

But little need be said as to the first, third, fourth, and sixth assignments of error.

Nothing can be clearer than that it was not only competent, but important for the plaintiff to show that he was authorized by the owner of the horse to take it from the possession of the owner’s son and the defendant, otherwise he would have occupied the very unfavorable position of being injured in attempting, by force and without right, to take possession of a horse and carriage then in the actual custody of others.

The remark as to which of the witnesses were entitled to the most credit, preceded and followed as it was by the explicit declaration that the jury were'the sole judges alike of the correctness and credibility of the witnesses, calls for no interference from us. The same may be said as to that part of the charge in which the jury were told that it was for them to determine to what extent the defendant was injured, or whether he feigned greater suffering than he endured. Surely it requires no argument to prove that we cannot reverse an important cause upon such grounds as these.

As to the damages, the jury were instructed that if they believed the attack was wanton and unprovoked, and with a deadly weapon, they could give exemplary, or even vindictive damages, if necessary to repress the practice of carrying and using deadly or dangerous weapons. The objection urged against this part of the charge is, that there was no evidence that any such practice existed in the community where the injury was inflicted and the cause tried. Grant it. Yet the direction was correct without the reason. If the attack was wanton and unprovoked, and with a deadly weapon, it was a case for vindictive damages, whether there was such a practice or not, and whether it would repress it or not. The addition could not injure the defendant, but might benefit him, for the jury might infer that unless it was necessary to repress the practice spoken of, vindictive damages should not be given. So far the case is free from- difficulty. There remain, however, to be noticed, somewhat more in detail, the second and fifth assignments of error.

The defendant offered upon the trial to show his general character, that it was uniformly good, and that he was reputed to .be a peaceable and orderly person, for the purpose of rebutting any inference of malice. This was objected to and rejected. The question thus presented is by no means a new one. , Many cases in which the principle is involved are to be found in the English reports, and in those of the different states of this Union. The decisions have not been in entire conformity with each other, but the weight of authority is largely in favor of the rule as pronounced by the Court below. The Attorney-General v. Bowman, 2 Bosanquet & Puller 532, note A, is the leading English case. This was an information against the defendant for keeping false weights. It was proposed to give evidence of his general good character, but it was held to be inadmissible, Chief Baron Eyre observing that “ the offence imputed is not in the shape of a crime.” It would be contrary to the true line of distinction to admit it, which is this, that, in a direct prosecution for a crime, such evidence is admissible, but where the prosecution is not directly for the crime but for the penalty, it is not. In Goodright v. Hicks, cited in Buller’s N. P. 296, which was an action of ejectment by an heir at law, to set aside a will for fraud and imposition committed by the defendant, it was held that witnesses could not be examined as to defendant’s good character. Humphreys v. Humphreys, 7 Conn. Rep., was an issue upon the adultery of the wife, and the proof, merely presumptive evidence of her good character, was refused: Woodruff v. Whittelsey, 1 Kirby 60. Trover for goods, where fraud upon creditors by a colorable bill of sale was in question, and the evidence circumstantial, the general character of the parties to the bill for honesty was refused. In Fowler v. Etna Fire Insurance Co., 6 Cowen 473, a fraudulent valuation of loss at a fire was imputed to plaintiffs, which involved moral perjury at least, it was ruled that evidence of his good character was improperly received.

Gough v. St. John, 16 Wendell 646, was an action on the . case for a false and fraudulent representation as to the solvency of another. Upon the trial evidence was received that the defendant sustained a good character for honesty and fair dealing. The judges of -the Supreme Court were unanimously of opinion that this evidence was inadmissible; admitting that the contrary had been decided in Ruan v. Perry, 3. Caines 120, but overruling it in terms. In Givens v. Bradley, 3 Bibb 195, evidence of the plaintiff’s character was refused, although the action was assault and battery; and in Rogers v. Lamb, 3 Blackford 155, which was case for malicious prosecution, it was held that the defendant’s character was not in issue, and that he could not call witnesses to support it. In our own state evidence of the defendant’s good character was rejected in Nash v. Gilkeson, 5 Ser. & R. 352, although fraud was imputed to him by the evidence given by the plaintiffs. And in Anderson v. Long, 10 Ser. & R. 55, the plaintiff was refused permission to show his good character for honesty, although the defence ivas that he had fraudulently obtained the bond upon which the suit was brought.

The principles upon which these decisions rest, are 1st, That in civil suits evidence of the character of the parties, except where the character is directly in issue, is not admissible.

2d. That putting character in issue is a technical expression, which does not mean simply that the character may be affected by the result, but that it is of particular importance in the suit itself, as the character of the plaintiff in an action of slander, or that of a woman in an action on the case for seduction. The remark of Professor Greenleaf, in his Treatise on Evidence, vol. 1st, sect. 54, that “ generally in actions of tort, wherever the defendant is charged with fraud from mere circumstances, evidence of his general good character is admissible to repel- it,” is not sustained by any authority which I can find, save Ruan v. Perry, 3 Caines, and this is expressly overruled in 16 Wendell, before referred to.

It is admitted that the defendant’s good character would have been legitimate evidence in his favor, upon the trial of an indictment for the assault and battery with which he was charged, and it is somewhat difficult to perceive why it should be received in the one case and excluded in the other; but such, as we have shown, is the well settled rule of law, and, unless it is manifestly wrong, ought not to be disturbed. It does not follow because it is not in consonance with the rule in criminal evidence, that it is therefore clearly wrong. To exclude evidence of character in all civil actions where character is not directly in issue, makes the result depend rather upon the character of the circumstances attendant upon the transaction than upon that of the parties, or either of them.

In the very able argument made by the counsel for the plaintiff in error, it is contended that where the action is to recover damages for an injury committed against the person by force, alleging a malicious intention upon the part of the defendant, and where the evidence is conflicting, character should be received. There is no such distinction or exception as this to be found in any of the authoritative cases. It is not the consequences to be apprehended from the result that puts the character in issue, but the nature of the issue itself. To use the language of Justice Daggett, in Humphrey v. Humphrey, (7 Conn. 116), “ Causes charging cruelty, and even forgery, are often agitated in suits by individuals; and the result not unfrequently affects the property and reputation of the party deeply; yet no individual has been permitted to attempt to repel the proof by showing a good reputation.” It would be no rule at all if it were to be enforced or set aside according to the extent of the disaster to be apprehended from an unfavorable result. Again: were we to determine that whenever the evidence imputed a criminal act to the defendant for which he might be indicted, he should have the advantage of his good character, we should be utterly disregarding the rule of stare decisis; which ought never to be done, except where an adherence to the beaten track is certain to produce the most mischievous results. There was no error committed in rejecting evidence of the defendant’s good character.

An indictment was preferred in the Quarter Sessions of Dauphin county against the defendant, for an assault and battery with intent to commit murder, and for an assault and battery. He was found guilty upon the charge of assault and battery, but not guilty of the intent to kill. The sentence "was to pay a fine of one hundred dollars and costs. This record was offered in evidence by the defendant, and received without objection. The learned judge instructed the jury “ that this record, when given in evidence by the defendant, was strong evidence that an assault and battery was committed,” and further, that he “ did not consider it by any means conclusive that Porter did not stab Seiler, for it would be the duty of the jury to acquit on the two first counts, if they believed the knife was drawn and used after the fight commenced and the blood became heated, as killing in such cases would not have amounted to murder, but would at most have been manslaughter. Yet that by no means shelters the defendant from his civil responsibility for the injury done.” It is assigned for error that the Court erred in charging that the record was strong evidence “ that an assault and battery was committed.” That “ it was not conclusive that Porter did not stab Seiler,” and in further charging “ yet that by no means shelters the defendant from his civil responsibility for the injury done.”

It must be remembered that this record was offered by the defendant, and, as appears from what was said by the judge, for the double purpose of showing the punishment already received, and of disproving the intention to kill. It certainly could not have been offered by the plaintiff for any purpose; but when voluntarily given by the defendant, and admitted without objection by the plaintiff, and without its effect being restricted in any manner, was it not evidence that the assault and battery had been committed ? It was offered and received generally, and it contained the verdict of guilty of an assault and battery, with the sentence of the Court thereupon; and if evidence to disprove the intention to kill, it was evidence to verify the assault. Had it been offered specially in mitigation of damages by the defendant, I will not say that it should have been allowed any other effect; but, from the course pursued, it would seem that both parties were willing that it should

be received, for all that appeared upon its face, — the plaintiff, because it affirmed the assault, and the defendant, because it negatived the intent to kill. In Moses v. Bradly, 3 Wharton 274, a similar record, when offered by the defendant, was permitted to be used as evidence that an assault had been committed; and in Weckerly v. The Lutheran Congregation, 3 Rawle 172, a plaintiff who produced a record between himself and another party as the foundation of his action, was held to be bound by all that appeared upon the record. The judge was right in saying that an acquittal upon the two first counts in the indictment did not conclusively disprove the stabbing, for the reason given in the charge. A misconstruction is placed upon the last clause in the assignment of error. Its true meaning is simply that the absence of the intention to kill by no means shelters the defendant from his civil responsibility for the injury done.

Upon a somewhat careful examination of this case, we are satisfied that it was fairly and legally' tried; that no evidence was received which should have been rejected, and none rejected which should have been received; and that the charge to the jury contained a correct exposition of the law, and a fair statement of the facts.

Judgment affirmed.

Lewis, J.,

dissented as to the effect allowed to be given to the record of conviction and sentence, alleging that such a record was not legal evidence for the defendant, ivhere the plaintiff claims no more than compensation for the injury sustained; but where he claims vindictive or exemplary damages,.it is proper evidence for the purpose of showing how much the defendant has already suffered for punishment, and as an example to others; and that giving it in evidence, on the part of the defendant, for such purpose was not an admission of the justice of the conviction.

Brack, C. J.,' concurred with Lewis, J.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Martin’s Appeal, also Bare’s Appeal, or Meixel’s Estate.
    1. An executor, authorized to rent real estate, during the lives of persons designated, on such leases as will prevent the estate from being exhausted, and to divide the clear rents and profits among them, should confine his expenditures, charges, and payments within the income of the estate.
    2. A testator directed his executors, after the payment of debts, costs, and charges, and the erection of a house, &o., for his wife, to rent the remainder of his real estate upon such leases as will prevent the estate from being exhausted and ruined, during the life of his wife and children and during the life of the survivor of them, and one-third part of the clear yearly rents and profits, taxes and reasonable repairs and charges being first deducted therefrom, to pay to his wife during her lifetime. lie further directed the executors to apply the two-thirds of the clear rents and profits in equal parts towards the maintenance and support of his children during their joint lives or entirely to the survivor of them; and he directed that if any of the rents and profits be left unapplied such portion to he placed at interest until his estate he finally distributed, and after his wife’s death the whole of the clear rents were to be applied to the children in equal parts. The rents, &c., were to be applied as the executors might think prudent.
    lie further directed that within a year after the death of the survivor of his wife and children his executors sell the remainder of his estate real, personal, and mixed, and the money arising therefrom, with all other of his estate left, to be equally divided amongst the children of two of his sons and of a daughter, and of a grandson, and their heirs and assigns in equal shares.
    Several accounts were filed, and after the death of the widow and of some of the children and grandchildren interested, the surviving executor exhibited a sixth trust account, containing a balance in his favor exceeding $1500. After its exhibition, an act was passed at his instance, authorizing the surviving executor and trustee to sell a part of the real estate for the purpose of paying the debts ou the premises and to raise a sufficient sum of money to erect a suitable barn for the residue of the estate, “which barn,” it provided, “he is authorized to erect.”
    It was Held, that advances to those entitled for life beyond the clear yearly rents and profits were not authorized by the will and that the balance in favor of the accountant was no charge upon the interests of those entitled to distribution after the death of the widow and children, and that no part of the proceeds of sale under the Act of Assembly was applicable to the payment of the said balance, it being no debt on the premises.
    3. As to the erection of a barn, see the opinion in this case.
    4. Residuary legatees who had no vested rights in the annual profits had no right to question the account of the executor. If they have acquired rights to any portion of the rents and profits since the decree in the Court below, they will not be affected by the confirmation of such decree.
    5. _ The accountant having failed in sustaining a claim to have the balance in his favor paid out of the corpus of the estate is chargeable with the costs of the audit. The costs since the decree in the Orphans’ Court to be paid by the appellants who have failed in procuring a reversal of the decree.
    Appeals from the decree of the Orphans’ Court of Lancaster county, on the account of Adam Bare, surviving executor or trustee under the will of John Meixel, deceased.
    There were two appeals in this matter, one by John L. Martin, for his wife and John Strohm, claiming as residuary legatees under the will of John Meixel, Senior; and another by Adam Bare, the surviving executor.
    John Meixel died in May, 1822, leaving both real and personal estate. His will was dated the 5th May, 1822. The will, inter alia, provided as stated in the opinion of Lewis, J., in this case.
    In January, 1824, an account by the executors, as such, was exhibited, claiming a balance of about $150 in their favor. Three trust accounts were exhibited by them during the life of the widow. She died in June, 1831. Another trust account was filed, and then Samuel Gerber, one of the executors, died, and another trust account was exhibited- by Bare, as surviving executor and trustee. In all of these accounts the balances were severally small. After the last of these accounts was filed, one of the grandchildren interested died, and in February, 1842, Adam Bare exhibited a sixth trust account, claiming a balance in his favor of above $1500. This account was referred to an auditor, who reported that the duties of the executor were troublesome; that the improvements which he had made were indispensable to the property, and the amount for compensation reasonable. His report was confirmed. After this one of the grandchildren died.
    A considerable amount of the credits asked for in this account were for materials and work for repairs.
    On 10th May, 1849, a citation was awarded to Adam Bare to settle a trust account, and in May, 1849, he exhibited an account, claiming a balance in his favor of above $2200. The balance on the last preceding account formed a part of this account.
    To this account exceptions were filed on the part of a number of residuary legatees. Auditors were appointed who refused to investigate any of the former accounts, but reported in favour of the accountant on the last account, and exceptions were filed on each side. In March, 1850, the Orphans’ Court, after argument, confirmed the report, upon the ground that the parties excepting to the account had no interest in the question as it was decreed that the balance on the account in favor of the accountant was no charge upon the reversionary interest of the exceptors. From this decree the appeals were taken.
    An Act of Assembly, at the instance of Adam Bare, the surviving executor, was passed on 27th February, 1849, providing that the said Adam Bare, as surviving executor and trustee, or his successor, is authorized to sell at public sale, after public notice, a part or parts of certain of the lands of the estate of John Meixel, for the purpose of paying the debts on the premises, and to raise a sufficient su.m of money to erect a suitable and convenient barn for the residue of the said real estate; “ which barn he is hereby authorized to erect.”
    An application was made, to the Common Pleas, on the part of persons claiming as being interested in the estate in remainder or residuary legatees, to restrain the executor from selling any part of the real estate. Lewis, President Judge, in his opinion on the apapplication observed, inter alia, that the Act merely authorizes the ex’ercise of the power to sell at an earlier period of time than that prescribed by the testator; that it was manifest from the terms of thé Act that the legislature believed that there were debts legally or equitably chargeable on the premises, and referring to the case of Norris v. Clymer, 2 Barr, and to the remark of the Chief Justice on p. 286, expressed the opinion that the Act was constitutional, and that the title of the purchaser would be valid, but that the application of the proceeds would rest on another ground, other than the Act of Assembly. If the executor had misapplied the rents and profits, and claimed to sell the estate in order to indemnify himself for advances which he was not authorized to make, the Act would be no justification. He added that the Orphans’ Court was the proper forum for the adjustment of the accounts of the executor, where they were then pending.
    No barn was built on the premises.
    It was stated that the last survivor of the primary legatees died in October, 1853.
    To the decree of the Orphans’ Court upon the account, various exceptions were filed. 1. To the opinion that the parties who excepted had no interest in the question; it being alleged that they were entitled to portions of the rents and profits which may be left after the support of the widow and children; 2. That the Court erred in saying that the balance claimed by the accountant may be a charge upon the clear income during the lives of the children; 3. In not reversing the report of the auditors, who refused to investigate the former accounts; 4 and 5 respected the amount of rent; 6. The claims for commissions; 7. To the allowance of any credit beyond the annual rents and profits; that the expenditure of more w7as unauthorized by the will.
    Exceptions were also filed on part of the accountant. One of them was in effect that the Coiu’t erred in the opinion that he had no claim to the corpus of the estate for the balance claimed by him; and another was that the Court erred in directing the accountant to pay the costs of the audit.

      Landis and Frazer, with whom was Black, on the part of residuary legatees.
    That the Act of Assembly in question was contrary to the provision in the 9th Article of the Constitution of Pennsylvania, reference was made to 6 Barr 91; 5 W. & Ser. 173; 9 Barr 108; 2 Cowen 350; 9 Id. 669; 4 Johnson 79; 1 Yeates 260; 5 Barr 149; 2 Dallas 311; 4 Harris 256, Irvin’s Appeal.

      Baker and Barite, for the accountant.
    As to the constitutionality of the Act, the material question is, what would a Chan-cellar do upon application for a sale and disposition of part of the trust estate, in order to save the remainder from dilapidation and carry out the desire of the testator, reference was made to Powell on Devises 718, n. 5; 7 Harris 371; 2 Story’s Equity 1064—and note; 1 Powel 234; 2 Ves. & Beame 76-7; 1 Mad. Ch. 483-5; 2 Atkyns 105.
   The opinion of the Court was delivered by

Lewis, J.

This is an appeal from the decree of the Orphans'. Court of Lancaster county, of the 17th March, 1851, on exceptions filed to the auditor’s report on the sixth supplementary account of Adam Bare, surviving executor and trastee under the last will and testament of John Meixel, Sen. The will is dated the 5th May, 1822, and was admitted to probate on the 1st June, 1822. .After several provisions not material to the questions before us, the testator directs his executors, or the survivor of them, “ to rent out all the residue of my real estate which shall be left after my just debts, costs and charges shall be fully paid and satisfied, and the dwelling-house and place finished for my beloved wife, upon such lease or leases as will prevent the estate from being exhausted and ruined, and the best care being taken of the timber, for and during the natural lifetime of my beloved wife and my children, and during the lifetime of the survivors of them, and the one-third part of the clear yearly rents, incomes, and profits of the remainder of my estate, after taxes and reasonable repairs and charges will be first deducted therefrom, I direct my said executors, &c. to pay unto my beloved wife annually during her natural'lifetime; and until such rents, incomes, and profits will accrue, and direct that my beloved wife shall be allowed a comfortable living and maintenance out of my estate, and my beloved wife’s funeral expenses shall be paid out of the goods sold at her death which I allowed her to keep during her lifetime if it will reach, otherwise out of the incomes of my estate.” I direct my executors to “ apply the two-third parts of the clear yearly ■rents, incomes, and profits of the remainder of my estate to be leased out as aforesaid, for and towards the maintenance and support of life of my children, in equal shares and parts, annually, during their joint lives, and in equal shares and parts during the joint lives of the survivors of them, and entirely towards the support and maintenance of the survivor of them, and if any of the clear rents, incomes, and profits shall be left unoccupied as aforesaid, such unapplied portion shall be placed at interest on the best security until my estate shall be finally distributed; and after my wife’s death the whole of the clear rents, incomes, and profits of my estate may be applied towards the support and maintenance of my children, as aforesaid in equal parts.”

“ I order and direct that my executors may pay the clear yearly incomes and profits of my estate unto my children in equal shares as aforesaid, as they may think prudent and right to do, always keeping in view that the same may he applied towards their support, clothing and maintenance of life, so as not to let them suffer, as far as funds will reach to accomplish the same.” “ I order and direct that within one year, or as soon as can he conveniently done, after the death of the survivor of my beloved wife and children, my executors, or the survivor of them, shall sell all that the residue and remainder of my estate, real, personal and mixed, together, or in pieces, &c., for the use of my estate. And the money arising from such sale, together with all other the estate then in the hands of my executors, or the survivor or survivors of them, from the incomes of the land, if any, or otherwise, shall be equally divided to and amongst the children of my sons Jacob and John, and daughter Polly, and the children of my grandson Qonrad Breneiser, and their heirs and assigns for ever in equal shares and parts.” The testator’s widow died in the year 1831. Two of the testator’s children, to wit, Jacob and John, were living at the time of the decree. So that the time prescribed by the testator for the sale of the real estate and the distribution of the proceeds had not arrived. But on the 27th February, 1849, the legislature passed an Act authorizing Adam Bare, surviving executor and trustee under the will of John Meixel, deceased, to sell a part or parts of the 106 acres of land remaining of the deceased, “ for the purpose of paying the debts 'on said premises, and to raise a sufficient sum of money to erect a suitable and convenient barn on and for the residue of said real estate; which barn he is authorized to erect.”

An application was made to the Court of Common Pleas for an injunction to restrain the executor from selling any part of the real estate under the Act of Assembly. But that Court, for the reasons stated in an opinion filed on the 25th September, 1849, held that the Act of Assembly, so far as it authorized the conversion of the estate into money, before the time designated by the testator, was not a violation of the rights of those in remainder, who had no interest in the property as land, and who were only entitled to their distributive share of the value when converted into money. At the same time it was intimated that the application of the proceeds of the sale must be according to the right of the parties under the will, and “must stand upon other foundations than the Act of Assembly.”

Two purposes appear to have influenced the legislature in authorizing the sale. The first is the payment of “ debts on the premises.” The second, the “erection of a suitable barn on the residue of the estate.” The first purpose is the only one brought before us on the present occasion. The parties excepting to the accounts and to the auditor’s report, and now assigning errors in this Court, are the persons entitled to distribution after the death of the two surviving children of the testator. The latter did not file exceptions. If, upon examination, the balance reported by the auditors appears to be no charge upon the interests of the parties excepting, they have no further right to be heard in respect to the items of charge and discharge.

The debts of the testator are all paid. The rents and profits of the estate appear abundantly sufficient to defray all the expenses necessarily incurred in the execution of the trust. The large balance appearing to be due to the’accountant is composed of advances made to the eestuis que trust for life, beyond the “ clear yearly rents, incomes, and profits” of the estate. These advances were not authorized by the will. The executors had a discretion to apply less than the clear incomes, but they had no authority to apply more, to the uses of the children. As a prudent man, a trustee should confine the maintenance of his Avard AA'ithin his income: Teague v. Dendy, 2 McCord’s Ch. R. 211. As a general rule trustees of an estate should not exceed in expenditure the income, so as to charge the capital: Hargood v. Wells, 1 Hill 60; 3 Am. Chan. Dig. 434. If this be the general rule in cases AA’here the money is applied to one entitled to the whole estate, it should be enforced with the more rigor, to restrain the application of the capital to persons not entitled, under any circumstances, to anything but the clear income for life: 11 Paige 185; 11 Pick. 124. Such an application of the capital is a violation of the trust, and is against the plain rights of the parties entitled in remainder. The balance due to the accountant is no charge upon the interests of those entitled to distribution upon the death of the children; and no part of the sum raised by the sale under the Act of Assembly can be applied to the payment of the balance thus due. It is clearly no debt on the premises” which can authorize the appropriation of any part of the capital to its discharge.

The right to apply any part of the proceeds of the land sold to the erection of a barn, does not necessarily arise on the report and decree now before us, although referred to in the report of the auditor, and in the opinion of the Orphans’ Court. That Court desired to guard the trustee from erroneously supposing that it recognised the power of the legislature to make any such application of the money, and, for that purpose, declared that the right to appropriate the capital to this purpose must depend, not upon the Act of Assembly of 1849, but upon the rights of the parties, as they existed before that enactment. In some states, persons in possession are allowed compensation for their improvements against the legal owner, who recovers in ejectment; but the Supreme Court of the United States held, in Green v. Biddle, 8 Wheat. 1, that Acts of Assembly authorizing such alloAvances were invalid: 5 Peters’ Con. R. 378. And the Supreme Court of our own state has decided that “ such an act would be the exercise of an arbitrary discretion, the jus vagum, the most miserable of servitudes:” Collins v. Rush, 7 Ser. & R. 155. The Lord Chancellor of England, in 1789, decided that a tenant for life, with remainder over, could not lay out a sum of money on the estate for improvements, and charge it on the reversion, although the estate itself would he benefited : Bostock v. Blakeney, 2 Br. Ch. R. 559. And in 1827, Lord Chancellor Eldon stated, that even “ if the master should report that it would be for the benefit of all parties interested, that improvements should be made on the mansion-house, he would not confirm the report: Nairn v. Majoribanks, 3 Russell 582. In many cases where a party is compelled to ask the aid of a Court of equity, and in others where he is seeking an account of the rents and profits, deductions have been made for improvements. But these cases stand upon principles peculiar to themselves. In the case before us there appears to have been no necessity to appropriate the capital to any such purpose. The property was expressly directed to be rented out “ upon such leases as will prevent the estate from being exhausted and ruined.” If this direction had been observed, the barn would have been kept in repair, or been rebuilt out of the rents and profits during the twenty years in which it has been under the management of the accountant. By the terms of the trust, all taxes and reasonable repairs and charges were to be defrayed out of the yearly rents, incomes, and profits, before any portion of them was to be paid even to the testator’s beloved wife; and the children, who were only entitled to “ two-thirds of the clear yearly rents, incomes, and profits of the remainder” of his estate, were limited by the same rule. But the barn has not been built; and it is intimated to us, in the argument here, that the surviving children have both died since the decree below. The trust can therefore be closed without any necessity whatever for the erection of that structure.

If the views we have expressed be correct, it is clear that the balance claimed by the accountant is not a charge upon the corpus of the estate. If so, the parties excepting have no such interest as entitles them to question the accuracy of the charges, unless they can show a vested right in the annual profits. The whole of these were expressly appropriated towards the maintenance and support of the testator’s wife and children. It is true, the testator directed that if any of the clear profits should be left unoccupied, such unapplied portion should be placed at interest, on the best security, until the estate should be finally distributed. And the money arising from the annual incomes of the land, if any should be in the hands of his executors at the end of one year after the death of the survivor of his wife and children, was to be equally divided among the grandchildren designated. But this was a contingent, not a vested interest. At the time of the decree, two of the children of the testator were in full life, and entitled to the whole animal income, subject only to the discretion of the executor. 'If the parties entitled to receive, and the trustee who was empowered to pay, committed an error in the application of the proceeds, strangers have no right to find fault with it. A misapplication, with the assent of the parties entitled, where there is no fraudulent intent, furnishes no foundation to claims which depend upon a contingency which has never happened. When the case was determined below-, the exceptants had no interests which were affected by the decision. If they have acquired any since, they arise from the subsequent death of the children, and the accident of a portion of the income remaining unapplied in the hands of the accountant. In the exercise of our appellate authority, ive do not generally inquire into matters not submitted to the Court of original jurisdiction. In affirming the decree, we do not interfere with any rights which may have since accrued to the ex-ceptants.

As the contest on behalf of the accountant was for the advancement of his own interest, and as he failed in his main object, which was to charge the corpus of the estate with his claim, it is just that he should pay the costs of the audit.

The decree of the Orphans’ Court, as specially expressed and explained, is confirmed. The costs since the decree to be paid by John L. Martin, and John Strohm, the appellants.


author: Woodward, J.

text:
    Wilson versus McCullough.
    1. To affect a bank, to which application is made for a loan on mortgage security, (a mode of business out of the usual course of bank accommodation), with notice of an unrecorded deed, actual notice should be brought home to the president and directors or to some other officer to whom such matters have been specially given in charge. Yague rumor to the cashier of the bank of such a deed was not notice to the bank or sufficient in law to put it to inquiry.
    2. Marriage articles relating to one-half of the female’s real estate, executed previous to the marriage, were not recorded, and subsequently the husband and wife executed a mortgage of her real estate to a bank for the purpose of procuring a loan. Though the cashier testified that he heard the marriage articles frequently talked of in and out of the bank, whilst the loan was negotiating — that they were spoken of before the board of directors, but whether in session or individually he could not say — but that he never heard whether they regarded real or personal estate and did not know who were the trustees, and did not certainly know from whom he acquired the knowledge and had never informed the counsel of the bank, applied to in the- negotiation of the loan, of the existence of the marriage articles.
    , It was Held, that the Court might have charged that this did not amount to notice to the bank of the unrecorded articles, instead of referring the evidence to the-jury to decide whether such notice to the bank had been proved or not.
    3. It was not a leading question to ask a witness whether it was or was npt made known to the Board of Directors of a bank (of whom he was one) that certain property proposed to be mortgaged to the bank bad been previously conveyed; or whether he as a director had or had not any knowledge of such conveyance. .
    4. The statement of the witness that the existence or otherwise of the articles in question vras referred to the president of the bank (who it appeared was a lawyer) and that at the next discount day it was made known to the board that the property was clear of encumbrances, was pertinent and competent evidence on the part of those claiming under the mortgage to the bank.
    Error to the Common Pleas of Cumberland county.

    Ejectment by Thomas S. Wilson and others v. D. W. McCullough and others, for 2050 acres of land, called the Cumberland Furnace Estate. This is the same case, reports of which exist in 7 Harris 77, &c., and in 9 Harris 436, &c.
    The plaintiffs below claimed one undivided half of the property in question under a marriage settlement between James Wilson and Thomas Duncan and Thomas Carothers, guardians of Eliza Ege, dated the 21st of July, 1817, and recorded on the 22d July, 1823 ; and the whole of the property as heirs at law of Eliza Wilson, formerly Eliza Ege. The marriage articles applied to but half of the estate of Eliza Ege, the female then about to be married to James Wilson.
    The defendants claimed under a mortgage given by James Wilson and wife to the Harrisburg Bank for $5484, dated the 12th December, 1821, and recorded 21st December, 1821; the various proceedings had upon said mortgage, and the subsequent sale thereon and conveyance of the' property to them. The mortgage was intended to apply to the whole estate of Eliza Wilson, late Eliza Ege. The mortgage was assigned to Jacob Albert, on 18th July, 1833, viz., nearly ten years after the marriage articles were recorded.
    In the decision in 1852 (see report in 7 Harris), it was held that the sale under the mortgage conferred no title, on account of want of description of the land in the precipe for a scire facias on the mortgage, no such writ having actually issued; and that the marriage articles were binding on those having actual notice of them before they were recorded.
    In the opinion in 9 Harris 441, it was considered as having been shown that the property mortgaged to the bank was the subject-matter of the scire facias and judgment, and that it was sufficiently described in the writs of levari facias; and that after these writs were issued, the ancestors of the plaintiff procured Jacob Albert, under whom the defendants claimed, to buy the judgment, and it was decided that the plaintiffs were estopped from contesting the proceeding. The decision to that extent affected only the half of the premises in dispute.
    Lowrie, J., in his opinion, 9 Harris 441, observed that, “ To our mind it is clear that the mortgage in question and the proceedings under it, have not at all affected the title.to the half of this land that was included in the marriage settlement, and this the plaintiffs below have properly recovered.” But it was considered that for the reasons before stated (viz., the proceedings on the mortgage, &c.), the defendants had made good their defence to the half of the land not included in the marriage articles.
    On the trial of the present case, the validity of the marriage settlement having been affirmed by this Court, the remaining material question was, whether the Harrisburg Bank had actual notice of the marriage articles in December, 1821, at the time they received from Wilson and wife the mortgage of her whole estate in the premises, the said mortgage, as before stated, not being recorded till 22d July,'1823.
    In relation to the matter of notice to the bank of the marriage articles, the then cashier of the bank, General Forster, and J. M. Haldeman, a director, were examined, and the deposition of Peter Keller, a director at the time of the loan to Wilson, was taken. For a part of the testimony of General Forster, see opinion of Woodward, J. The other witness said, inter alia, that he did not recollect of anything being made known to the board of directors of a marriage settlement between Wilson and his intended wife. That he heard of it seven or eight years afterwards at Carlisle. General Forster was then present.
    The deposition of Peter Keller was taken on part of the defendants. He was asked, Was it or was it not made known to the board of directors at any time, by James Wilson or any one else, that the property which James Wilson offered to mortgage had been previously deeded by him and his wife to any one else ? The question was objected to, generally, at the time. On the trial it was objected-to as leading ; and the statement as to the report by the president was objected to as incompetent, being but his declaration. The witness, inter alia, said: We left it to Mr. Elder, the president, to inquire into it, and at the next discount day it was made known to the board of directors that the property was clear of encumbrance.
    He was asked: Had you or not, as a director, any knowledge that Wilson and wife had made a- deed for the property to any one before he mortgaged it to the bank ? The question was objected to, generally, and on the trial as leading. The answer was, No, I had not.
    Graham, President Judge, observing that the cases of Miller v. Cresson, 5 W. & Ser. 307, and cases therein referred to, were not altogether reconcilable with the cases of Jacques v. Weeks, Barns v. Clinton, Lewis v. Bradford, and Sergeant v. Ingersoll, 7 Barr and 3 Harris, instructed the jury: — “ That whatever is sufficient to put a party on inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty, as in cases of purchasers and creditors, and would lead to the knowledge of tíre requisite fact by the exercise of ordinary diligence and prudence. Notice of a deed is notice of its contents. Had the bank such notice in this case of the existence of a prior settlement between Wilson and wife as ought to have put a prudent, discreet person upon inquiry, and would such an inquiry have resulted in the discovery of the truth ? If so, then their mortgage cannot prevail against the plaintiffs, who claim under the marriage settlement. But notice of a mere rumor of such settlement would not be sufficient to affect the bank, or the present defendants who claim title through a sale upon their mortgage.”
    He instructed them that if the bank had notice of the marriage settlement, it being recorded before the assignment of the mortgage to Albert, was notice to him and those claiming under him.
    The fifth point submitted on part of defendants, was, that it is a settled principle “ that the vague reports of strangers, or information given by a person not interested, respecting a defective title to land, will not have the effect of notice to the purchaser. Hence, if the jury should believe the testimony of Mr. Forster, it afforded no such notice to the bank as would affect their title under the mortgage.”
    The judge declined to instruct to that effect, but referred his testimony to the jury to determine whether the notice to the bank was vague rumor, or such as ought to have induced proper inquiry which would have resulted in ascertaining the truth.
    Verdict was rendered generally for the defendants.
    Error was assigned to the answers to various points: inter alia, io the answer to the fifth point submitted on part of defendants; and to the charge and submission as to notice. Also to the admission of the deposition of Peter Keller.

      Bonham, and Williamson, with whom were Hepburn and Moore, for plaintiffs in error.

      Biddle and Watts, with whom uTas Miller, contrá.
   The opinion of the Court was delivered by

Woodward, J.

The validity of the marriage articles having been established, when the case was here in 1852 (7 Harris 77), the great question on the last trial of the cause was, whether the*bank had notice of them when the mortgage of 12th December, 1821, was taken. The bank was a mortgagee without constructive notice, for the articles were not recorded until some months after the mortgage was duly executed and recorded. Had the bank actual notice ? The plaintiffs held the affirmative of this question, and the burden of proof was on them. The evidence produced and relied on by them was that of General Forster, the cashier of the bank in 1821. He described the negotiations which led to the loan to Wilson and wife, and proved the letters addressed by him to Mr. Clark, as attorney of the bank, and then added, “ I heard articles of marriage settlement, between James Wilson and wife, talked of very frequently in bank and out of bank. It was before the mortgage was taken, and while they were negotiating for the loan. When spoken of in bank, it was before" the board of directors, but whether in session or individually I cannot say. I did not know the terms — it was spoken of as such a thing existing. The board did not seem to regard it as of much importance in the transaction with Wilson and wife.” On his cross-examination he stated, “ I never heard whether it was in regard to real or personal estate, or anything about it, and did not know Avho the trustees were. I merely heard there was such a thing. I cannot tell how I acquired the knowledge — it must have been from some of the directors or before the board. I, perhaps, said, on a former trial, I got the information from Jacob M. Haldeman. I say now from him or the president of the bank. Mr. Elder, the president of the bank, was a lawyer......I had no written communication with Clark and Wilson other than what is contained in the letter-book. I never mentioned to Mr. Clark the existence of the marriage settlement. I never spoke of it, that I recollect, either to him or James Wilson.”

The defendents then proved, by Peter Keller and Jacob M. Haldeman, the only two surviving directors of 1821, that they had no knowledge of the marriage settlement when the loan was made to Wilson and wife, and Mr. Haldeman fixed the time when he first heard of it — seven or eight years afterward when he went to Carlisle to attend the sale of this property on the mortgage. Mr. Foster was then along — no sale was made at that time. I cannot say what year that was — that was the first I ever heard of this thing. I heard General Alexander speak of it at that time. General Foster was present.” General Foster being recalled by the plaintiffs, stated, “ I heard of this marriage settlement before and after the mortgage ivas executed. I got my information at Harrisburg, all that I got. I did attend sheriff’s sale of this property with Mr. Haldeman. I don’t remember anything about the conversation with Mr. Alexander spoken of by Mr. Haldeman.”

The Court was called on to say that if the jury believed General Forster, the bank and all claiming under it were affected with notice of the marriage articles; but the learned judge laid down, with commendable brevity and precision, the law as to notice of an unrecorded deed, and referred all the evidence to the jury for them to decide Avhether such notice had been proved or not.

Herein there Avas no error of which the plaintiffs have reason to complain. We are of opinion that the Court might have assumed higher ground, and ruled that General Forster’s testimony, taken without any allowances on account of age, infirmities of memory, or of conflicting proofs, failed to prove such notice to the. bank of the marriage settlement as would entitle that instrument to preference over the mortgage.

The mortgagee here was a bank, governed by a president and directors, and to affect the corporation with ■ notice it must be brought home to them, for it is the president and directors in the aggregate, with whom strangers have to do, and by whom all corporate acts are to be performed. Hence notice to a single corporator, is not notice to the corporation unless communicated to the board: Bank of Pittsburgh v. Whitehead, 10 Watts 402; Custer v. Tomkins County Bank, 9 Barr 27. Where a by-law, or the course and usage of business, have devolved certain duties on a particular officer of the bank, notice to him of matters relating to the routine of business intrusted to his charge, is notice to the bank, for the law presumes the directors to have employed a faithful agent, who will communicate to them what is communicated to him, and if he do not, the responsibility is on his employers.

But in the negotiation of a loan of a character and upon a security so much out of the course of ordinary bank accommodations, as that made to Wilson and wife, and especially when an attorney has been employed to act for the bank, notice of an unrecorded deed communicated to the cashier could scarcely be considered notice to the bank. The correspondence of Mr. Forster shows that the board was deliberating and acting in regard to this loan, and that he sent such instructions, and such only, to the attorney, as the board directed. The transaction did not fall within the circle of his ordinary duties as cashier, but was peculiar and extraordinary, and he did not communicate to the board what he says he heard about the marriage articles. Under these circumstances, had he received full and explicit notice of the articles, it might be well doubted whether it could, in reason or law, be treated- as notice to the bank. But he never received such notice. He heard a marriage settlement spoken of, but who were the trustees, what was settled, whether real or personal estate, and on what terms, and Avhen made, he did not hear. Was this notice of the. conveyance, AA’hich had been made of the particular premises, described in the mortgage ? Obviously it was not. Nor was it sufficient to put the bank on inquiry. For, of whom could they inquire ? If of the grantors, the conveyance was denied, for the mortgage made by them Avas a solemn assertion of their ownership of the premises. Indeed it is a fair presumption from the transaction, especially from Mrs. Wilson’s joining in the mortgage, that all proper inquiries were made in that quarter, and that the title AAras represented as in her. Of the trustees, the bank could not inquire, for even Mr. Forster had not heard them mentioned. Nor was any person in possession of the premises under a title inconsistent with that of the mortgagors. The public register was searched in vain, and no clue whatever was furnished to Mr. Eorster, by which he or the directors could come to a knowlege of the truth. Whatever puts a party on inquiry, amounts to notice, provided it would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding; but evidence that it was generally reported in the neighborhood that a person had sold land to another, and that the report was communicated to the defendant, is not sufficient: Jacques v. Weeks, 7 Watts 267; Epley v. Witherow, Id. 167; Hood v. Fahnestock, 1 Barr 470. And an intimation by one not interested in land that another title is outstanding, is not notice to a purchaser: Miller v. Cresson, 5 W. & Ser. It is a settled principle, said Chief Justice Gibson, in Koons v. Swope, 2 Watts 78, that the vague reports of strangers, or information given by a person not interested in the property, are insufficient to affect a purchaser with notice. Now, a mortgagee, as well as a purchaser, is within the recording Acts, and equally entitled to notice of previous conveyances ; and if these rules be applied, it is evident from the testimony of General Foster that no person in interest ever gave him notice of the marriage articles, and that vague rumor, which was all he had, never furnished him with such facts as would have enabled the hank, with the use of ordinary diligence and understanding, to discover their relation to this land.

In equity a purchase with notice of a secret trust is regarded as a fraud, and therefore it must be made out by clear proof of actual notice. My opinion is, said Duncan, J., in Peebles v. Reading, 8 Ser. & R. 496, that in such a case “the notice should he actual, circumstantial in the transaction,” and “ by the party in interest.” “ It must be proved that he knew exactly the state of the party having the equity, and knowing that acquired the legal estate. Nothing short of this, which is actual fraud, will postpone his legal title; and the fraud must be very clearly proved.”

This is a pretty strong statement of the rule, and must be taken with the modification settled in subsequent cases, already referred to, that what is sufficient to lead to the fact, is notice of the fact; hut where, as in this case, neither the special agent and attorney of the corporation, nor any officer of it having the business in charge, ever heard an intimation of the secret trust, and the cashier heard only such vague rumors as General Foster describes, there is not the least difficulty in saying that there was neither actual notice, nor its equivalent, and the Court might very properly have taken the case from the jury and ruled it against the plaintiffs on this .point. Of course they were not injured when, instead of doing this, the Court submitted the question to the jury.

The four propositions of the plaintiffs in regard to the validity of the judgment on the mortgage, are in direct conflict with the ruling of this Court, when the cause was last here, and therefore they were all properly negatived.

It is not necessary to notice the answer of the Court to the defendants’ first point. As the decisive point in the cause might have been ruled by the Court, and was found by the jury against the plaintiffs, this alleged error is wholly unimportant.

In the other answers of the Court, and in admitting the deposition of Peter Keller, there was no error.

The judgment is affirmed.


text:
    Gray and Wife versus McCune.
    1. Dower at common law was the right of the wife to the third part of the lands of which the husband was seised at any time during the coverture; and not merely in those of which he was seised at his death.
    2. A release, in Pennsylvania, need not he in technical form: it is sufficient if it be in substance a release. Words of inheritance are not necessary in a release of dower.
    3. An instrument of writing was executed in 1835 by a widow under seal and having two witnesses, addressed “ To all to whom these presents shall come/'’ in which it was recited that under the the will of her husband, dated in 1834, provision was made for her in lieu of her right of dower, whereby she agreed to take under the provisions of the will and accept of the bequests therein to her, in lieu and full satisfaction of right of dower at common law. It also appeared that she declared that she had desired her husband to leave her the property she had in possession — that she desired him to leave her property separate from that of the son, and that he should have his separate from her —that though she had not signed the conveyances to the son she had signed an agreement of release to the same effect:
    It was Held, that this instrument was not limited to lands of which the husband died seised, but operated as a release of her right of dower in lands conveyed by her husband to his son by a former wife, in the conveyance of which she had not joined; and that the son, though not a party to it, yet being in possession of the property conveyed to him and interested in the estate or property received and enjoyed by the widow under the will, was not a stranger to the release and could plead it in bar of her claim of dower in the lands so conveyed to him.
    This was an action of dower, by James Gray and Mary Ann his wife v. William C. McCune, brought on 23d June, 1853, to recover dower in two tracts of land, formerly the property of John McCune, the first husband of the said Mary.
    John McCune aforesaid was seised of three tracts of land, one, on which he lived, containing about 190 acres, and another of 75 acres, chiefly timber land, and the third containing about 200 acres. By a first wife he had five children, William McCune, the defendant, being one of them. So owning the said lands, he became married to the said Mary Ann about 1824. By deed, dated 13th September, 1832, he conveyed to his son William, the defendant, 45 acres of the timber tract, including a small tenant house and four acres of clear land, $1000 being mentioned as the consideration of the deed. And by another deed, dated 11th March, 1883, he conveyed to the defendant about 70 acres, being part of the tract on which he lived, $1500 being stated as the consideration. His wife Mary Ann, plaintiff, did not join in either of these conveyances. Both deeds contained a covenant of special warranty against him and his heirs.
    By his will, dated 27th December, 1834, he devised to his wife Mary Ann certain personal property; and he devised to her and her five children, “to them, their heirs and assigns for ever,” the plantation he then lived on, to enjoy the same for their use and support, viz., to his wife Mary Ann, the one-third part of the rents and profits during her natural life, and her five children to enjoy the remainder of the rents and profits; and after the death of their mother, and after the youngest child came of age, they might sell the land. He also gave to her said five children a piece of woodland, containing above 15 acres. He devised to his other daughters certain real estate. He died in June, 1835. The will was proved on 26th June, 1835. On the trial it was proposed, on part of the plaintiffs, to prove the annual value of the land, in which dower was claimed, since the death of John McCune. The evidence was allowed so far as respected the value of the lands since the suit was brought. Exception on part of plaintiffs.
    On part of defendant was offered an instrument of writing, signed by Mary Ann McCune, the widow, under seal,-and having two witnesses; to be followed by proof that she procured the will to be made by which the devises to her and her children were made in consideration of the conveyances made to William McCune; and that she since the death of her husband declared that she had executed the release for the purpose of confirming the title to him clear of claim of dower on her part.
    The instrument was addressed “ To all to whom these presents shall come.” In it was stated- that by the will of her husband, bearing date, &c., provision was made for her in lieu of her right of dower : and it proceeded, “ now know ye that I, the said Mary Ann McOune, do hereby agree to take under the provisions of said will and testament, and accept of the bequests therein to me, in lieu and full satisfaction of right of dower, at common law. In witness,” &c.; dated 3d July, 1835. It was under seal, and had to it two witnesses.
    The paper was objected to, — first, as not being a release. 2. Because neither the defendant nor any one. under whom he claims, nor the land in question, is referred to in the paper. 3. Because no benefit or consideration passed to her from the defendant.
    By consent the offer of the defendant was to be put into the form of a special plea, and the plaintiffs to reply.
    It was further objected that the paper was nothing more than an offer to take under the will; and further, that it was not competent to prove by parol the meaning of the paper. The evidence was admitted, and exception was taken.
    A witness testified that Mrs. Gray, in September, 1849, said to him that she had desired her husband to leave her the property she had in possession — that she desired him to leave her property separate from that of William, and he should hav'e his property separate from her — that she was satisfied; — that she said she had not signed the deed, but had signed an agreement of release to the same effect.
    Another witness was examined, who testified that he was the executor of the will of John McCune — that it was reported that the widow was not satisfied, and that he got the release drawn, supposing it would bind her, and that she signed it in his presence. He said that the widow got the property which had been bequeathed to her. He said further that the property given to her and her children wras more valuable than all the rest of the estate left by the testator.
    Graham, P. J., inter alia, charged that the paper alone would not defeat the plaintiffs’ claim, but that he considered parol evidence admissible to ascertain the object and intention of the parties in its execution; and he instructed the jury that if they were satisfied that the paper was intended by Mrs. Gray, at the time it was executed, as a release of dower in the lands sold to the son, in consideration that her husband had yielded to her request in making his will and had devised to her the most valuable part of his estate, their verdict should be for the defendant.
    Verdict for defendant.
    Error was assigned to the rejection of evidence of the value of the land before suit brought, and the value of the timber cut by defendant in the last year; to the admission of the paper signed by the widow, and parol evidence in relation to it; and to the part of the charge referred to.
    The case was submitted.

      Oolwell and MeOlure were for plaintiffs in error.

      Sharpe, Watts, and Parlcer, for defendant in error.
   The opinion of the Court was delivered by

Lewis, J.

In Leineweaver v. Stoever, 1 W. & Ser. 160, it was held that the acceptance by the wife of her distributive share of her husband’s estate under the intestate law, did not bar her action of dower in lands which her husband had conveyed to a stranger, and which formed no part of his estate at his death. In Borland v. Nichols, 2 Jones 43, the same principle was applied to the acceptance by a wife of a devise under her husband’s will. The first was a decision under the Act of 1794, and the other under that of 1797. Both statutes had relation exclusively to the estates of which the husband died seised or possessed. They could operate on no other. And the last, which is the only one material to be considered here, is express in its direction that the acceptance of a devise of any portion of his estate “ shall be deemed and taken to be in lieu and bar of her dower out of the estate of her deceased husband, in like manner as if the same were so expressed.” It was held that the statute could not be carried beyond its letter, and that as its general provisions related to the estate which belonged to the husband at the time of his death, and the particular effect of acceptance was confined by the statute to that estate, the Courts could not, by construction, enlarge it. The decisions referred to were constructions of law, given to the single act of accepting a distributive share or a devise. But the case before us demands a decision upon an instrument of writing, sealed and delivered by the party in whose right this action is brought. A release under seal is good without a consideration; and where, as here, it enures by way of mitter le /droit, words of inheritance are not necessary. It would be well to make use of the most appropriate words, such as remisisse, relaxasse, et quietam clamasse, but these are not indispensable. The words renunciare, acquietare, &e., will answer as well. If one acknowledge himself satisfied, and discharge a debt, this is a good release: Shepherd’s Touchstone 327. The paper in question is duly executed under the hand and seal of Mary Ann McCune, in the presence of two witnesses. It bears date the 3d July, 1835, when she was under no disability of coverture or otherwise. It is addressed, “ To all to whom these presents shall come.” It has come to the hands of the defendant below, and he gives it in evidence, and claims the benefit of it. He is not a stranger, but had possession of the property in dispute at the time of the execution of this instrument, and claimed to hold the land in fee simple under a conveyance from the first husband of Mary Ann McCune, dated the 11th March, 1833. It would be a reproach to the law if this instrument under seal, thus fairly executed by the present Mrs. Gray, were held to be null and void. It cannot be pretended by any one that it should be so regarded. It must, therefore, have effect according to its true intent and meaning. It is Mrs. Gray’s own language, and therefore, in case of ambiguity or doubt, it is to be construed most strongly against herself. It was her business to express herself so as to be understood. If she intended merely to accept the provisions of her husband’s will “ in lieu of her dower in the estate of her husband,” under the statute of 1833, it was her duty to say so. If the object was merely to acknowledge satisfaction of all right of dower out of tko estate which belonged to her husband at his death, it was easy to say so ; and it was her duty to say so in such language as could be readily understood. William C. McCune, in addition to his title as vendee under his conveyance from his father, was a son and .an heir, and had an interest in knowing the extent of the satisfaction acknowledged. If he had not understood it as extinguishing all claims upon the land in his possession, it may be that he would have resorted to other measures for his protection. He might have raised a question in regard to the large provision made by the will for the widow, and the meagre one provided by the same instrument for' himself. But the paper distinctly declared that the said Mary Ann McCune agrees to take under the provisions of the will, and accepts the bequests therein, to her, in lieu and full satisfaction of right of “ dower at common law.” What is right of dower at eommon law ? It is something more than right of dower out of the estate of whieh her husband died seised. Dower at common law is the one-third part of all the lands and tenements whereof her husband was seised, at any time during coverture. This is precisely the right which she released, and she has thereby discharged the land in controversy from her present claim. After making the declaration that although she had not signed the deed to William O. McCune, she “ had signed an agreement of release to the same effect;” after receiving for herself and her children property more valuable than all the rest of the estate, including what was sold to William; and after an acquiescence of nearly twenty years in the settlement thus made, she comes with a bad grace to ask a recovery contrary to the plain meaning of her own deed. The cause is put upon the effect and true meaning of that' instrument as expressed upon its face. In Pennsylvania it is not necessary that a release should be dressed up in legal and technical form. It is sufficient if it be in substance a release. The intention of the parties will be carried out in a Court of law, as fully as if they were before a Chancellor, and governed by the principles of equity. The instrument of writing signed by the demandant, in connexion with the other facts in the case, sustains all that is material in the plea.

It is true that a conveyance of her right of dower to a stranger, for a consideration moving from him to her, could not sustain the plea of a release to the defendant who had no privity with such stranger. The suit might, notwithstanding such conveyance to a stranger, be carried on for her use in the name of the demandant. This is all that was decided in Pixley v. Bennett, 11 Mass. 298. In Massachusetts, a conveyance to a party out of possession passes no estate, and is therefore not evidence under the general issue in a writ of entry: Wolcot et al. v. Knight et al., 6 Mass. 420. And in an action of dower the tenant, who does not claim under such conveyance, and who is an entire stranger to the consideration, cannot set it up as a defence. If it passed no right, it was clearly no- defence. If it did pass a right, the action might well be maintained for the benefit of the grantee or his assigns. In either case the defendant, being a stranger to it, had nothing to do with it. This is all that has any relevancy to this case in Robinson v. Bates, 3 Metcalf 40. It is clear that these decisions, although cited by the plaintiffs in error to invalidate the defence under the release relied on in the case before us, do not sustain their positions. William C. McCune was neither a stranger to the consideration, nor to the instrument itself. It was not a transaction between strangers. The provisions in the will, which the widow accepted in satisfaction of her claim, were drawn from estates which, but for tbe will and the acceptance by the widow, would have descended or fallen upon William McCune himself; and the language of the instrument, as well as its object, shows that it was intended to operate in favor of the party who relied upon it at the trial.

This disposes of the whole case, and renders it unnecessary to discuss the other questions raised in the assignment of errors.

Judgment affirmed;


text:
    Zacharias versus Zacharias.
    1. Trusts not to be reached or affected by the statute of limitations are those technical and continuing trusts which are not cognisable at law, but over which Chancery has exclusive jurisdiction.
    2. The statute of limitations begins- to run whenever the right of action accrues.
    3. It was testified that the defendant, within a year before-the institution of the suit, said that his father had charge of money of the plaintiff’s- testator, and that he had received it of his father and given his bonds for it; but that he promised his father before his death, above twenty years previous, that he would take care of the testator as long as he lived, and of his money, and his father then gave him back his bonds: and' further, that the defendant told the witness to keep the matter secret and he would satisfy the plaintiff. It also- appeared that about eighteen years previous to suit brought the defendant had received for the testator above $300 from the executors of his father’s will. In assumpsit by the executor of the creditor it was Held, that the defendant was liable to suit any time after the receipt of the money — that the statute was applicable to the claim — and that his declarations as testified to were not sufficiently specific to amount to an acknowledgment of indebtedness, or consistent with a promise to pay.
    Error to the Common Pleas of' Berks county.

    Action of assumpsit, brought January 3, 1851, by Daniel Zacharias, executor of the will of Matthias Zacharias, deceased, v. George Zacharias. The declaration was for money had and received, with the common fnoney cotints. Pleas, non assumpsit and non assumpsit infra sei annos.

    Matthias Zacharias, the plaintiff's testator, came from Germany to this country, many years ago, and lived with and worked for Daniel Zacharias, the father of the defendant. He saved some money which he placed in the hands of Daniel Zacharias, last mentioned, to take care of it for him, and lend it out upon interest, which he did. He lent some of it to Adam Barnhard; and it was alleged, on part of the plaintiff, that some of it was lent to the defendant, and his bends taken therefor.
    Matthias Zacharias continued to live with Daniel Zacharias until shortly before Daniel’s death, when he went to live with Oeorge Zacharias, the defendant, where he died in June, 1850.
    Shortly before his death, Daniel made a will, in which he directed that if Adam Barnhard did not pay the one hundred pounds, that the same should be paid by his executors and deducted from his daughter “ Catharine’s inheritance.” Daniel Zacharias, the father of defendant, died in 1827.
    It appeared that the amount of the principal of the bond of Adam Barnhard, with seven years’ interest, viz., $378.67, was, on 31st December, 1832, paid to the defendant by o.ne of the executors of his father’s will; and in the receipt it was stated that the amount was “received for Matthias Zacharias.”
    It was testified that the defendant and his wife took good care of Matthias.
    Edmund Zacharias, a son of the plaintiff, testified that in 1850 he told the defendant that he knew he had received seven or eight hundred dollars of the testator’s money — that the defendant said he had, but nobody could prove it. He said his father put the money of Matthias out on interest, and he got the money from his father and gave him bonds for it; and that when his father came to die, he (the defendant) promised him that he would take care of Matthias as long as he lived, and would also take care of 'his money, and then his father gave him back his bonds. He said that when Matthias came to him he paid him wages, and after he could not earn wages, he worked for his board — that he asked the witness to say nothing about the last will of the decedent, and said he would “ satisfy my father.”
    Jones, President Judge, charged that it is only when a trust is of the kind exclusively cognisable in equity, that it is beyond the operation of the statute of limitations. The defendant received the money from the executor in 1832; at any time after that he was liable to be called on for it by Matthias Zacharias, and the statute began to run from the time the money was received. He further charged that acknowledgment, to take the case out of the statute, should be sufficiently definite to found an action upon as a distinct contract; and if so, if made to a stranger, it will -not avail.
    Verdict for defendant.
    The charge, with respect to the statute and the acknowledgment, was assigned for error; and also that the Court induced the jury to believe that $378.67 was all the money the defendant received.

      Davis, for plaintiff in error.
    The distinction as to trusts, to which the statute does or does not apply, is between express and implied trusts — that implied trusts are within the operation of the statute, whilst express trusts are not: 3 John Ch. 190; 7 Id. 90; 14 Ser. & R. 394. In this case the promise was express that defendant promised to take care of Matthias as long as he lived, and would also take care of his money. It was contended that the statute does not begin to run till after the relation between the parties is dissolved by demand or otherwise; and in this case no demand was made till after the death of Matthias: cited 10 Barr 462; 4 Watts 340; 5 Iredell 597; 2 U. S. Dig., pl. 230; 9 New Hamp. 359; 1 Am. Leading Cases 520; 23 Wend. 528, 530; 6 Hill 541; 8 Metcalf 217; 1 Harrington 117; 1 Hill Ch. 62-67; 2 Id. 158, 164; 1 Bailey's Eq. Rep. 226.
    As to the acknowledgment, was cited 2 Watts 104; 5 Barr 162.

      Strong and Banks, for defendant.
    The money was received above 18 years before suit. To remove the bar of the statute by a new promise, that promise, as a new cause of action, should be in terms unequivocal and determinate, not vague or uncertain: 5 Harris 280; Id. 303; 2 Id. 481-2, 3.
    It is not sufficient that a trust existed. It is only trusts which are not cognisable at law, but which fall within the exclusive jurisdiction of Courts of equity, that are beyond the statute of limitations : 1 Watts 2tl; 1 W. & Ser. 118; 2 Rawle 302, App v. Dreisbach; 7 John Ch. 110; 8 Harris 299, Harrison v. Brolaskey.
    A demand is not necessary before suit or to prevent the running of the statute. (See 10 Harris 21, Drexel v. Raimond.)
   The opinion of the Court was delivered by

Woodward, J.

Can it be doubted that from the time George received the money for Matthias, whether from his father on his death-bed, or through the heirs by Daniel, one of the executors, he was subject.to an action for money had and received ? Assumpsit with us lies upon a promise made to the plaintiff, or to another for him, or where money has been received to his use; and in the latter case gives effect to the same principles that are administered through a bill in equity. That George received the money for the use of Matthias is shown by the testimony of Edmund Zacharias, and very expressly by the terms of the paper signed for $378.67, on the 8lst December, 1832; and if subject to an action therefor from the time he received it, which it seems to me is beyond doubt, the statute of limitations would commence running in his favor from that time. Statutes of limitation do not act on the right, but on the remedy. A debt is not extinguished by six years’ delay to sue for it, but as against a plea of the statute the action for its recovery is gone. From the moment the right of action accrues, the statute begins to run, and unless arrested by a renewed promise, or by a distinct and express acknowledgment of the specific debt as a subsisting liability, becomes, after six years, an absolute bar to the action. Here more than 18 years elapsed from the last receipt of money before institution of the action, and no such promise or acknowledgment was proved as would take the case out of the statute. What was said at the funeral, as proved by Edmund Zacharias, was neither specific enough for an acknowledgment nor consistent with a promise to pay. What then is there to exempt this stale claim from the operation of the statute of limitations ?

In the first place it is insisted that the statute did not begin to run until after demand made, and for this Krause v. Dorrance, 10 Barr 462, and Foster v. Jack, 4 Watts 340, are relied on. Both these cases proceeded on the peculiarity of the relation between counsel and client, in the first of which there was no question upon the statute of limitations, and in the other it was held that the statute did not run against counsel fees, whilst the professional relation continued with the client.

The relation of counsel and client is necessarily one of great confidence, and often embraces more than a single transaction. If either could harass the other with actions before demand made, or dissolution of the relation, it would prove destructive of the confidence which it is the policy of the law to promote. For different hut equally satisfactory reasons we have held that a county is not suable by its creditor until after demand made, but these are to be regarded as exceptions to the general rule, which gives a man his action for moneys presently due him in the hands of another. There was nothing in the relation between the plaintiff’s testator and the defendant to prevent an action for this money at any time after it came into the hands of the latter, and therefore the doctrine of the cases cited is not applicable.

But it is further urged, that the relation between them was that of trustee and cestui que trust, and that as long as there is a continuing and subsisting trust acknowledged or acted on by the parties, the statute of limitations does not apply.

That this was a direct trust may be admitted without its following necessarily that the statute is inapplicable. Some trusts are exclusively cognisable in Courts of equity, and over others Courts of law and equity exercise concurrent jurisdiction, and the rule is well settled, in regard to the latter, that the statute is equally a bar in both jurisdictions, because otherwise a creditor might always elude the statute by electing to pursue his remedy in equity. The sound rule established on the solid foundations of authority and policy is, that the trusts not to be reached or affected by the statute of limitations, are those technical and continuing trusts which are not at all cognisable at law, but fall within the proper, peculiar, and exclusive jurisdiction of Chancery: Lockey v. Lockey, Prec. in Chanc. 518 ; Sturt v. Mellish, 2 Atkyns 610; Kane v. Bloodgood, 7 Johns. C. R. 116; Lausatt’s note to Fonblanque’s Equity, 1 vol. 246; Lyon v. Marclay, 1 Watts 271.

The plaintiff’s argument, to have force, must proceed on the ground that the trust in this case belongs exclusively to an equity jurisdiction, and yet he has instituted an action at law upon it. If his argument be good, his action cannot lie. But I think his action is well brought. Whether he could have sued the defendant on the equity side of our Courts, he was not mistaken in supposing he had a remedy at law, but the statute of limitations applicable to such a trust in a Court of equity is, a fortiori, applicable to it in a Court of law.

The case of Johnson v. Humphreys, 14 Ser. & R. 394, is distinguishable from this case in its facts. In that case, there was. nobody in the country who had a right to demand payment until Humphreys took letters of administration, in 1819, and within two years thereafter he brought suit. Besides, there was an acknowledgment of the debt by the trustee, to which the Court gave effect as continuing the trust. If what was said by Judge Rogers, in that case, may seem inconsistent with our ruling here, his subsequent opinion in Lyon v. Marclay fully justifies the position we have assumed.

The judgment is affirmed.