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    Hill versus Frazier.
    1. The ninth section of the Act of 7th April, 1849, to encourage manufacturing operations, renders stockholders liable to a certain extent for the debts of the company; and the 14th section renders directors liable who make dividends which impair the capital stock; and the 23d section authorizes the plaintiff in the suit to include as defendants any one or more stockholders of the company claimed to be liable, and gives to the stockholder, who pays, the right of subrogation to the extent of the payment: It was Held that the 23d section does not prescribe the form of action or otherwise apply to a suit against a director, for a violation of the provisions of the 14th section.
    2. A director, from whom a recovery is had under the 14th section of the Act as a wrongdoer, has no right of subrogation as against the company.
    3. The company is not to be joined as a defendant in a suit against a director under the 14th section.
    4. But a plaintiff who has no claim against the company, has none against a director under the provisions of the 14th section.
    5. A treasurer of a corporation cannot maintain a suit against the company on a claim against it, which he has purchased. A confidential agent cannot create relations which place him in hostility to his principal. Such a purchase of a debt was an extinguishment of it against the corporation.
    6. The director, sued under the provisions of the 14th section, having no recourse to the company, stockholders were not competent witnesses for the plaintiff in a suit against such director, as their testimony tended to relieve the company from the burden of the debt, and to throw it upon the defendant.
    Error to the District Court of Allegheny county.

    This was an. action of debt founded upon the 14th section of the General Manufacturing Act of 7th April, 1849. It was brought in the name of I. N. Erazier, for the use of M. Eldred, Jr., v. William A. Hill.
    On the trial, it was proved, on the part of the plaintiff, that the claims in question had been assigned to Eldred before the suit was commenced; that it was commenced by Eldred and was being prosecuted by him and for his own use.
    At the time the claim was assigned to Eldred, at the time the suit was brought, and when it was tried, Eldred was the secretary and treasurer of the Eayette Manufacturing Company; and as such had the custody, possession, and control of all the books, papers, property, and effects of the company, and, in subordination to the board of directors, the management of its affairs.
    The plaintiff set out in his declaration that, on the 10th of December, 1850, the Eayette Manufacturing Company declared a dividend of the profits of said company, and paid the same to the stockholders; that William A. Hill, at the time the dividend was declared, was a director of the Company; that the said dividend was not of actual profits, but that it impaired the capital stock of the company, contrary to the provisions of the 14th section of the said .Act; that William A. _ Hill did, as a director, consent to the declaring of such dividend, or, if absent at the time the same was declared, did not file and record his dissent in writing agreeably to the provisions of said section; and that, therefore, he became liable under the provisions of said Act to .pay all the debts which the company owed at the time the said dividend was declared, and which it afterwards contracted as long. as he remained a director; that such company, by two notes, one dated the 29th of July, 1851, for $649.38, and the other on the 25th of September, 1851, for $500, while Hill remained a director, became indebted, to Frazier; which amounts he claimed to recover against Hill. The defendant pleaded in abatement that the plaintiff had not joined the Fayette Manufacturing Company in the suit as a co-defendant (agreeably to the 22d section). To this plea the plaintiff demurred. The Court sustained the demurrer, and ordered the defendant to answer over.
    The defendant then by pleas in bar traversed all the allegations in the plaintiff’s declaration, and set up matters in avoidance as follows:
    1st. That the plaintiff had not joined the Fayette Manufacturing Company as a defendant.
    2d. That he had not obtained judgment against the Fayette Manufacturing Company before bringing this suit.
    3d. That the claim was purchased by M. Eldred, Jr., for a sum greatly below its actual amount, while 'he was treasurer of and acting for the company; that he held the same wrongfully against the company, and was prosecuting the suit for his own use, when in fact the claim belonged to the company.
    4th. That the action -was brought against the defendant for the purpose of extortion and fraud.
    5th. That Eldred, while he was treasurer of the company, paid the claim with the funds of the company, and fraudulently took an assignment of it to himself.
    6th. That Eldred, in consideration of a loan of $2500 made by Hill to him, agreed not to bring suit against Hill.
    7th. That there was no consideration for the notes.
    The plaintiff informally demurred to the first two - of these pleas, and traversed the others, and on these issues the case was tried. o
    Verdict was rendered for the plaintiff for $1258.79, on which judgment was rendered on 13th June, 1853.
    See the opinion in this case for the points deemed by the Court material in the case.

      Skinn and Stanton, for the plaintiff in error.
    It was said, inter alia, that a director is liable only for the wrongful direction of a dividend made in such a way as to bind the company. That the liability of the corporation to the plaintiff must be established before a director is made liable for an alleged debt of the corporation ; and that, under the Act of Assembly, no action can be sustained against a director without joining the company in the action. That the 23d section gives the right of enforcing the remedy given by the 14th.

      Williams, for defendant in error.
    He said that one question made, was, whether a director .consenting to a dividend was liable when the action of the directors was not put on the minutes, but was kept concealed. Hill was president of the board when the dividend was made. If a director wishes to go away, he should resign his trust. It was said, that the 14th section permitted suits against directors jointly or severally.

   The opinion of the Court was delivered by

Black, C. J.

The act “to encourage manufacturing operations in this Commonwealth,” passed April 7, 1849, authorizes persons, who choose to become stockholders in a manufacturing company, to incorporate themselves by filing a certificate of certain facts in the recorder’s office of the proper county, and transmitting a copy to the secretary of the Commonwealth. The 9th section declares that the stockholders shall be jointly and severally liable in their individual capacities, to the amount unpaid on their respective shares for all debts of the company. In the 14th section it is enacted that the directors consenting to a dividend, greater than the net profits of the company, shall be liable, as individuals, for all the debts of the company contracted while they are in office, or existing at the time of the dividend: saving, however, any director who shall file a certificate within ten days, that he objected to the dividend, or was absent when it was declared. By the 23d section it is provided, that in any action brought to enforce any liability under this act, one or more stockholders may be included as defendants: and execution shall go first against the company, and if its property be insufficient, then against the stockholder; and, in case the stockholder pays the debt, he shall be subrogated to the rights of the creditor against the company.

The present defendant was a director of the Fayette Manufacturing Company; and during the period for which he was elected, a dividend was declared largely exceeding the profits of the company and impairing its capital. This suit is brought, upon the 14th section of the act, to compel him to pay one of the debts which the company owed at the time the unlawful dividend was made.

He objects that the action is wrong in form, because not brought against the company as well as himself, agreeably to the 23d section. The words any liability in this section, clearly mean no more than would have been expressed by the words any debt of the company. Every word that follows, implies an action against the company, in which the stockholder may or ma.y not be joined as a defendant. For the purpose of saving trouble, expense, and time, the plaintiff is authorized (not compelled) to include a delinquent stockholder with the company, and the judgment fastens the former if the execution fails to get the money out of the latter. We are not now to say whether a stockholder can be sued alone. It does not seem to us that such a suit would be objectionable, especially if the company had been first pursued and its property exhausted : for the liability is distinctly created in the-9th section, from which the common law remedy to enforce it follows of course; and the form of action mentioned in the 23d, is merely permissive. But -the plaintiff in error did not become liable as a stockholder, but as a director. It would be carrying construction altogether too far, to say that because a stockholder may be joined in a suit against the company, therefore the company must be joined in a suit against a director. The act says that directors, in a case like this, shall be jointly and severally liable for the debts of the company; which simply means that a creditor may sue them separately or together; and if he proves an illegal dividend he may recover from them instead of the company. There is nothing in any other part of the statute which at all contravenes or changes or modifies this, or which requires the creditor to adopt any remedy other than that which is necessarily implied by the words from which the liability arises.

Believing, as we do, that the 23d section does not prescribe the form in which the action must be brought to enforce the liability of a director, and that there is nothing whatever in that section which refers to directors who are sued for violating the 14th section, it follows that the. defendant in the suit has no right of subrogation. He is sued as a wrongdoer, and wrongdoers have no recourse over, either against those who are in pari delicio, or against anybody else. If this debt be paid by the defendant, the company is for ever clear of it. The stockholders, therefore, were not competent witnesses in favor of the plaintiff; for their testimony relieved themselves from the burden of the debt and threw it upon the defendant.

If the plaintiff has no legal or equitable claim against the company, he cannot recover in this action. The evidence he produced of the company’s original indebtedness was two notes, payable to Frazier, and by Frazier assigned to Eldred, who brought this suit and has prosecuted it for his own use in the name of Frazier. The assignment was after the unlawful dividend. Eldred was at the time, and has been ever since, the treasurer of the company. We see nothing in the nature of the'claim itself which prevented the holder from assigning it. It was not, as the defendant insists, a mere penalty. It was a debt due from the company to Erazier, which he might transfer like any other debt, and the assignee was entitled to all the remedies for its recovery which the original creditor would have had. But could the treasurer buy up claims against the company and maintain suits upon them? On this question our opinion is in the negative. He could not. It was a violation of the duty which he owed to the creditors, to the stockholder, and to the officers of the corporation—to the defendant himself among others. He was their confidential agent and trustee. It is a universal rule that one to whom the management of any business is confided, cannot create other relations which will put him in an attitude of hostility to his principal, or cestui que trust. Thus an attorney cannot buy a title upon which he was consulted, and set it up against his client: (8 Watts 93.) If a guardian renew a lease with his own money, and in his own name, he holds it for his ward: (1 Vernon 484.) When one of two joint tenants or tenants in common holding under an imperfect title, buys in a better one, the purchase is for the benefit of both: (5 Johns. Ch. R. 407.) When an assignee for the benefit of creditors takes an assignment of a judgment against his assignor, it is a payment of the debt, not a purchase (1 Penna. Rep. 223); and so of executors, administrators, and every other class of trustees, and agents: (1 P. C. C. R. 373.) One who is charged with the duty of paying debts cannot make a speculation by buying them for his own use, whether he does it with his own money or not. That the officers of a corporation are held to the same rules of good faith which govern other agents, is proved by the Turnpike v. Watson (1 Rawle, 330), and Kimmel v. Greeting, decided at the present term. The treasurer’s purchase, therefore, of Erazier’s debt against the company, was an extinguishment of it. Whatever profit he made by it enured to the benefit of the company, and he could be reimbursed what he paid for it, only by a credit in the settlement of his accounts, or by an action against the Company.

These points being decisive of the cause, it is not thought necessary to examine the others.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: Black, C. J.

license: Public Domain

text:
    Wills’ Appeal.
    1. Where an administrator is permitted by the guardians of minor children of the intestate, to receive the rents of the real estate, whether expressly authorized to do so or not, the guardians are liable to account for the same to the wards.
    2. Where guardians permit an indebtedness by the administrator of the estate, who is publicly known to be embarrassed, to. continue for several years, without making proper efforts to secure it, and the debt is consequently lost, they are liable.
    3. The finding of the jury, in an issue directed by the Orphans’ Court to settle disputed facts, should be treated in this Court as conclusive, unless it was produced by the admission of illegal or the rejection of legal evidence; or if the facts found by the jury be immaterial to the controversy, or the jury were misled by misinstruction on matters of law, or the verdict be palpably founded on insufficient evidence.
    4. The guardians were not excused by showing that one of their wards, who was of full age, acting for himself and professing to act as attorney for the other ward, who was yet in his minority, agreed to the guardians accepting from the administrator a conveyance of real estate in payment of his indebtedness ; the ward of full age is bound by his acceptance of the conveyance from, the administrator, hut the minor ward, having no power to appoint an attorney, was not bound by the agreement.
    5. The guardians will not be relieved by mere declarations of the ward, made within about a month after he came of age, to a third person, approving of the taking of the lot for the indebtedness, but accompanied by no evidence that the ward had then seen the lot or knew its value, he not having received a deed, or any of the rents, or taken possession, or executed a release.
    6. Such is the ease, though the ward received a portion of the money which had been received by the guardians from the administrator in addition to the lot. Having a right to receive what he did, his acceptance of it was no confirmation of the transaction. His refusal to take the lot was not inconsistent with his receipt of the money.
    7. Evidence on the part of the ward, that the lot was of no value at the time at which he was alleged to have accepted it, was proper evidence on the trial of the feigned issue, as tending to elucidate the transaction.
    8. On the trial of the issue, a conveyance by the guardians to a third person, for a nominal consideration, of the lot in question (made to relieve them, from the ground-rent to which it was subject, the buildings having been destroyed by fire), was pertinent and material evidence on the part of the ward; it not being shown that the guardians had tendered to him a conveyance of the property.
    9. The decree of the Orphans’ Court in the case in favor of the guardians was reversed, and the report of the auditor in favor of the ward was confirmed.
    Appeal from the decree of the Orphans’ Court of Allegheny county, setting aside an auditor’s report, and confirming the account of the guardians.
    William J. Wills, the appellant, was a son of John Wills, late of the city of Pittsburgh, deceased, who died in the year 1822, leaving a widow and three minor children, viz., John, Lawson, and William, and leaving considerable real and personal estate. The widow was appointed the guardian of William, and continued to act as such until her decease, in 1831. In the fall of 1833, Jokn Hannen and Hugh Davis were appointed the guardians of the said William J. Wills, and continued to act as such until he became of age, on the 22d November, 1843. The said Hannen and Davis were also the guardians of John and Lawson.
    Alexander Brackenridge was the administrator of the estate of the said John Wills, deceased, and settled his final account, to March Term, 1832, showing a balance in favor of the estate of $406.
    The said Brackenridge also collected rents of a portion of the real estate of the said John Wills, deceased, and also collected other moneys, belonging to said estate, viz.:
    For rent, as stated in guardians’ account, as settled in Orphans’ Court, in 1833, July 1, and interest thereori, ........ $512.30
    For rents received since that time quarterly, up to January 1841, ....... 1283.13
    for net proceeds of farm called Cooper’s Place, and interest thereon, received by Brackenridge, between 1834 and 1837,....... 458.03
    For amount of a judgment against Kneider, No. 9, April Term, 1829, paid to Brackenridge, and interest, ........ 162.23
    $2415.75
    On which Brackenridge paid to John Hannen, on 18th December, 1835, $100, -which with interest allowed them, made the sum of $135.25; leaving in his hands due to the guardians on 1st November, 1841, $2280.50; also, the balance in his administration account, $406.
    The guardians permitted this money to remain in the hands of A. Brackenridge, from the time of its receipt by him, until the 20th day of April, 1841, without calling him to an account, or taking any measures to secure the money in his hands. It was alleged that the latter was, during the greater part of the time, engaged in a hazardous business, and that his real estate was encumbered to a large amount; one encumbrance was in favor of Hugh Davis, one of the guardians.
    Brackenridge being considerably involved, the guardians on 20th April, 1841, procured from him a cautionary judgment in $3000, to stand as security for whatever amount might be found due to the heirs on settlement, with stay of execution for twelve months.

      On the 8th of February; 1841, this judgment was liquidated at $2922.95.
    Brackenridge, being unable to discharge this judgment, offered to John A. Wills, who had then become of age, to convey as part payment thereof, a house and lot, at the corner of Front and Market streets, in the city of Pittsburgh, at the sum of $2300. Wills said he would consult the guardians. The offer was accepted, and Brackenridge accordingly made a deed for the same on the 13th day of February, 1843, to John A. Wills, in] his own right (he being interested to the extent of one-half by the death of his brother Lawson), and to “ John Hannen and Hugh Davis, guardians of the surviving minor heirs of John Wills, deceased,” subject to an annual ground-rent of $160, payable semi-annually to the heirs of Samuel E wait; to have and to hold, &c. unto the party of the second part, their heirs and assigns, to and for the only proper use, &c., of the said party of the second part, their heirs and assigns for ever.
    This property never yielded anything to the estate of Wills.
    William J. Wills became of age on the 22d November, 1843. It was alleged on his part that prior to his majority, being informed of the purchase, he disapproved of it. It was also alleged on his part that the property was never tendered to him by his guardians, and that he was never called upon by them to accept or refuse it.
    On the 19th July, 1845, the petition of William J. Wills was presented to the Orphans’ Court, in which a citation was asked against the guardians, and requiring them to appear and settle their accounts.
    A citation issued, returnable on the 23d August, 1845.
    After hearing, on the 25th April, 1847, at the instance of the defendants the Court granted a rule to show cause why the citation should not be dismissed; and on the 27th of April, 1847, the Court dismissed the proceedings, and directed the applicant to enter his application to the Register for a' citation.
    An appeal from this decree was taken to the Supreme Court, to September Term, 1848, in which the decree of the Orphans’ Court, dismissing the citation, was reversed; and it was ordered that the record be remitted to the Orphans’ Court, with directions to proceed to the determination of the said cause, according to due course of law: 9 Barr 106, Wills’s Appeal.
    The record being remanded, the Orphans’ Court, on the 16th December, 1848, ordered a citation to issue to the said guardians to settle in the register’s office their final account, as guardians of William J. Wills.
    On the 31st January, 1849, the guardians exhibited an account, as guardians of the minor heirs of John Wills, deceased, in which they charged themselves with the balance due on the settlement of their last account, on file, No. 24, June Term, 1841, in the Orphans’ Court, &c., $168.11, and claiming credits to the amount of $184.50; resulting in a balance in favor of the accountants, of $16.39.
    March 26, 1849. Confirmed nisi.

    April 5,1849. Exceptions to the report were filed. An auditor was appointed; in whose report the guardians were charged with the judgment against Brackenridge, and resulting in a balance against the guardians, on June 7, 1850, of $2179.55. In the report it was stated that it was alleged, on part of the guardians, that they had taken a house and lot in payment of the judgment, “ with the consent of William J. Wills, and with his approval, expressed by himself and Ms attorney John A. Wills, since the said William J. Wills came of age.” The auditor stated that no evidence was produced satisfactory to him as to the truth of these allegations,—that he was of opinion that the guardians had no authority to invest the money of their wards in real estate, and that by due diligence the money due on the judgment might have been collected.
    Exceptions on part of the guardians were filed. On May 29, 1851, the petition of the guardians was presented, praying for the direction of an issue to ascertain certain facts referred to, and tendering an issue on facts suggested.
    On the part of William J. Wills exceptions were tendered to the issues suggested, and it was suggested: 1st. That the loss of the Brackenridge judgment was not the question at issue, but that the controversy related to a period prior to that judgment—that the questions were, whether the guardians had "made themselves liable for the rent's represented by that judgment;—and whether they could lawfully convert personalty into real estate. Other objections were added, and issues were suggested. In the issue tried, William J. Wills was plaintiff and John Hannen and Hugh .Davis were defendants. Bee the opinion in this case as to the matters supposed by the Court to be found by the jury.
    After the verdict, the record being certified to the Orphans’ Court, that. Court decreed that the exceptions to the auditor’s report were sustained, and the account of the guardians was confirmed absolutely.

    From this decree an appeal, by William J. Wills, was taken.
    Exceptions were filed, to the effect that the Court erred: 1. Ir£ sustaining the exceptions to the auditor’s report and in confirming the account of the guardians. 2. In crediting them for money paid by them to their own counsel. 3. In refusing to charge the guardians for the money lost by them through the employment of A. Brackenridge, and their own negligence, in compelling him to account for and secure the same, while he was able to do so; and 4. In calling the aid of a jury in determining questions of law.

      Hepburn and Williams, for the appellant.

      Stanton and Hampton, for the guardians.
   The opinion of the Court was delivered by

Black, C. J.

Alexander Braekenridge was administrator of John Wills, deceased, and John Hannen and Hugh . Davis were guardians of the minor children, John and William. The guardians permitted the administrator to receive the rents of the real estate from 1833, when they were first appointed, up to 1841, when they made a settlement with, and took a'judgment from him, for the amount of those rents, and a balance due on his administration account, confirmed in 1832, In ,1843, the guardians took from Braekenridge a conveyance of certain real property for the debt, and entered satisfaction of the judgment. This was done with the entire consent of their eldest ward, who was of full age, hut without the knowledge of the present appellant,' who was still in his minority. The property thus taken in lieu of the judgment turned out to be wholly worthless, being encumbered by a ground-rent greater than any annual profit it could be made to yield, even with the buildings upon it; and the buildings were destroyed by the fire of 1845. Brackenridge’s deed was to John A. Wills and to the guardians nomindtim, not in trust for their ward, but for. their own use. Being personally liable for the ground-rents and taxes, and the lot not producing them, they sold it in 1851 to Jacob Weaver for one dollar. The guardians now insist that they are not liable for this debt. They filed an account, showing a balance in their favor of $16.39. It was referred to an auditor, and he, charging them with the Braekenridge debt, reported a balance against them of $2179.55. They excepted to this. An issue was directed to the Common Pleas; the questions submitted were found by the jury in favor of the guardians; and the Orphans’ Court made a final decree reversing the auditor’s report, and confirming the account as at first filed. From that decree this appeal is taken by the ward.

The principal part of the debt due from Brackenridge was for rents which he received from 1833 to 1841, as agent of the guardians. He could have received them in no other way. Whether he was expressly appointed to collect them for the guardians or not, makes no difference. Their tacit permission was as good as a written power of attorney. A payment to him was a payment to them, and they were as absolutely bound for all he received as if they themselves had received it in their own hands. No matter^ what they did afterwards, or what they omitted to do. Subsequent negligence could not put them in a worse, nor diligence in a better condition. When a guardian puts another in his place to do what he might and should have done in his proper person, he takes the whole peril on himself. If the agent becomes insolvent, the ward cannot be turned over to him. The defence, therefore, of the guardians, that Brackenridge was not able to pay, and that they took the best measures to make him pay, will not avail them.

Buf suppose this to have been what a part of it was, a debt due from Brackenridge to the estate of the ward, for which the guardians were not originally liable. The question then arises, did they make such timely and faithful efforts to secure it as the law requires of a guardian ? Certainly they did not. Mr. Bracken-ridge owed part of the claim in 1833, when they were first appointed. lie was deeply in debt, and following a hazardous business. Ilis embarrassed circumstances were publicly known as early as 1837, and might have been discovered earlier with a little inquiry. Yet they suffered the debt to grow until 1841 before they even took a judgment. When a guardian lends the money of his ward on mere personal security, and loses it, he is responsible, no matter how cautiously he may have acted. Tn principle and reason the case is the same when money is left in the hands of a debtor on similar security for an unreasonable time, during which it might easily be collected, or better security taken for it. I do not say that a guardian is bound to sue all the debtors of his ward immediately. But he is utterly inexcusable if he suffers a large debt to remain unsecured year after year, when it might be put beyond the reach of accidents by an hour’s attention. Certainly it cannot be denied that the guardian makes himself liable if he looks on in supine negligence, while the debtor is gradually and perceptibly sinking in his circumstances for four years before he becomes insolvent. All that has been said in argument about the impossibility of collecting this debt from Brackenridge in 1841 or afterwards is beside .the purpose. There had been plenty of time to collect it long before. The appellee’s previous negligence had fixed them. The recovery of it from Brackenridge had become a matter of their own, and his failure to pay it was their own loss.

But the issue was found in favor of the guardians. When, in the progress of an investigation like this, it becomes material to settle a doubtful fact, and an issue is made up for that purpose and tried, the verdict of the jury ought to be treated as conclusive, unless it was produced by the admission of illegal or the rejection of legal evidence. But the verdict is not entitled to rule the decree, if the facts found be immaterial to the controversy in the Orphans’ Court; if the jury was influenced by an erroneous ruling of evidence in or out, or by misinstruction on matters of law; or if the -verdict was palpably founded on insufficient evidence. We think the verdict in this case is open to all these objections, and we must do what the Orphans’ Court ought to have done; that is, disregard it.

Four propositions or statements of fact were sent by the Orphans’ Court into the Common Pleas to be tried. To these a fifth was added by the latter Court immediately before the trial. There does not appear to have been any declaration filed, averring the truth of these statements on one side, or any plea denying it on the other. This being the case, there was no issue at all. The material of an issue was submitted to the jury in its raw state. But we gather from the response of the jurors that they meant to affirm the following propositions, which we will suppose to be facts legally found: 1. That the loss of the Brackenbridge judgment was not by the default of the guardians; 2. That they were guilty of no laches or negligence by which it was lost; 3. That in taking the property in place of the judgment, they pursued the best course; 4. That John A. Wills, attorney of the guardians and heirs, put the claim in jeopardy, if it was in jeopardy, at all, and by his fault absolved the guardians; 5. That William J. Wills, the appellant, after he came of age and fully understood the subject, confirmed the acts of his guardians with respect to this claim.

I take it for granted that the three first propositions were intended by the jury to be confined strictly to the judgment, and refer only to the conduct of the guardians after it was obtained. They surely did not mean to say that it was not negligence to wait eight years before they took a judgment, or that the guardians were doing their duty when they permitted another person to receive and appropriate to his own use rents which they ought to have collected and applied to the purposes of the trust. That being their meaning, these propositions are wholly immaterial, or rather they make in favor of the ward. If the guardians pursued the best course with the judgment, were guilty of no default, and still could get nothing for it but a lot which was not worth as much as the paper on which the deed was written, it shows that the debt was very desperate before the date of the judgment. And how did it become so ? No one will say that a trustee who sleeps upon his duty for eight years can retrieve himself by making a sudden effort when it is too late to do any good.

The next point is a curious one. It asserts that John A. Wills, one of the heirs, and attorney of the guardians and heirs, put the claim in jeopardy by his act, if it was put in jeopardy ; and thus the guardians were absolved from charge. John A. Wills was of full age, assented to the purchase of the property, advised it, thought the lot worth as much as the price it was taken at, and accepted a conveyance in satisfaction of his share. He has borne his own loss. But how could his concurrence absolve the guardians ? Because he was the attorney of their ward ? That could not be, for the ward had no power to make an attorney, or even to interfere with the matter in person. Because he was their attorney ? Then they were responsible for his acts as well as their own. The fact that they acted for William in conjunction with John, who had an equal interest, shows that they acted in good faith; but faith could not save them at that stage of the business.

The fifth fact found by the jury was material. t It is that the appellee confirmed the acts of his guardians with respect to this claim after he came of age, and was fully informed. If there is any tolerably clear evidence of such a confirmation, the decree of the Orphans’ Court was right enough. John A. Wills testifies that his brother knew nothing of the property until after he came of age some time; that then he went to look at it, and expressed his disapprobation, and his determination to hold the guardians responsible. Another witness swears that, very soon (within a month) after he came of age, he spoke of his guardians having settled with Brackenridge and taken a house and lot on Eront street; said he thought the money was secured by it; and bragged about it. But there is no proof that he had ever seen the property or knew anything about its value, or that his guardians or anybody else had ever explained the transaction to him. Eor aught that appears, he was wholly ignorant both of his rights and his wrongs. It is upon this testimony that the appellees rely. A written release directly to the guardians, executed with all due solemnity by the ward soon after he comes of age and without a perfect knowledge of his affairs, will not stand a moment in any court of equity, unless it can he proved that the consideration he received was a full equivalent for the right he gave up. Here is a young man, twenty-one years and one month old, and destitute of all' information about his estate, who makes a loose and idle declaration to a third person by which his guardians assert .that he surrendered to them about twelve hundred dollars for the consideration of a house and lot of no value whatever. Such evidence amounts to nothing.

The evidence discloses no indirect recognition of the transaction by the appellant. He has done no act which estops him from setting up the claim which he now makes against his guardians. He never accepted a deed for the lot, nor received rents nor took possession. But the property was taken from Brackenridge at f2300, and the whole debt was nearly $3000. The balance was paid in cash, and the appellant, through his brother, received a portion. Assuming that he knew whence it came, and giving to his receipt the whole force which equity would give to such an act in any conceivable case, it was no confirmation. He had a right to take it —a right which did not depend upon or spring from the contract which they allege he confirmed. His acceptance of what he conld get did not weaken his claim to the rest. His refusal to take land for one part of' Ms debt is not inconsistent with Ms receipt of another part in money.

There is another reason why this verdict is not to be regarded in making the decree. The Court of Common Pleas, on the trial of the issue, rejected two important matters of legal evidence, which, if they had been admitted, might and ought to have changed the result.

The first was an offer to prove that the property was- of no value at the time when the appellant was said to have accepted it in lieu of his claim. This was as strong a circumstance as could have been produced to show that he never confirmed the purchase, or that if he did, it was under the influence of some mistake. When you show a fact to be improbable, you increase the difficulty of believing it; and nothing can be more improbable than that a sane person would knowingly give up a clear right to a large sum of money without receiving anything in return. Deeds and releases from young heirs have often been set aside without any evidence but the mere disparity between what they got and what they gave.

Again: the deed made by Hannen and Davis to Weaver for the property in question, was read to the jury, but afterwards withdrawn by the Court. This deed was not only proper and pertinent evidence, but it was absolutely conclusive against the appellees. The appellant demands certain moneys of his which his guardians owe him. They answer that they have converted his money into land. They took the deed for it in their own names. They not only fail to prove that they ever tendered Mm a conveyance, but it is made to appear that they have conveyed to another person. This last fact cuts their defence up by the roots.

The written points submitted to the Court are not before us, and the charge cannot be properly understood without them.

On the whole, our view of this case differs entirely from that of the Court below; and while we see no reason to believe that the appellees meant any positive wrong to their ward, we cannot relieve them from the payment of what he claims without violating the law.

It is now here considered and adjudged that the decree of the Orphans’ Court of Allegheny county in this cause be reversed, and that the report made to the said Court by its auditor be confirmed — that the accountants, John Hannen and Hugh Davis, guardians of William J. Wills, be charged with the sum of $2,179.55, as reported against them by said auditor, with interest from June 7, 1850. And furthermore, it is ordered, that the said Hannen and Davis pay all the costs of this cause, including those of the feigned issue.


text:
    Wills versus Hannen and Davis.
    Where both an appeal and writ of error were taken in the matter of a proceeding in the Orphans' Court by a person against his former guardians, in which an issue was directed to the Common Pleas, and the decree of the Orphans' Court was reversed on the appeal, this Court, on the writ of error, simply set aside the proceedings in the Common Pleas.

    Error to the Common Pleas of Allegheny county.

    This was a writ of error taken in the case of the feigned issue directed by the Common Pleas in the matter mentioned in Wills’s Appeal, antea, page 325, &c., the issue being between William J. Wills as plaintiff and John Hannen and Hugh Davis as defendants.
   The opinion of the Court was delivered by

Black, C. J.

All the points of this case which needed any attention have been considered in Wills’s Appeal. In fact this record is hut a part of that. We have already done what we conceive to be justice on the whole matter; and we find it somewhat difficult to do more. In reversing the decree of the Orphans’ Court we reversed the only judgment which was or could be rendered on this verdict. The Act of Assembly authorizing writs of error in feigned issues, has answered no purpose hut to make our practice anomalous; and we advise counsel, when they desire to review a case like this, to come here with an appeal only. Nevertheless the law which gives the writ implies it to be our duty to give a judgment. This issue was mistried below; but shall we reverse the judgment ? That was before us on appeal from another Court, and stands reversed now. It sounds oddly in the ear of a lawyer to speak of reversing a verdict. But since something must be done, we will simply set aside the whole proceedings in the Common Pleas.

Proceedings set aside.


author: Knox, J.

text:
    Fritts versus Doe.
    The oath to the petition of an applicant for the benefit of the insolvent laws was made before the prothonotary, without it appearing to have been made in open Court. Affidavits that it was made in open Court were submitted, the petitioner was again sworn in open Court, the case was continued, new notice directed, and the applicant was finally discharged: Held, that the discharge of the petitioner was conclusive, that he had complied with the requirements of the Act, which entitled him to a discharge.
    Error to the Common Pleas of Erie county.

    This was an action of debt by Sidney Doe v. Reuben, Peter, and John Fritts. It was brought on the insolvent bond of Reuben Fritts, in which the other defendants were sureties. The bond was dated January 16, 1851, and was conditioned for the application by Reuben Fritts for the benefit of the insolvent laws under the Act of 12th July, 1842. His petition was filed on the 4th February, 1851, and the 4th Monday of April was fixed for the hearing. Objection was made that the oath to the petition had been made before the prothonotary without it appearing to have been made in open Court. The hearing was continued till the 2d of May, and again till the 9th of May. On that day the affidavits of two persons were filed, and were to the effect that the affidavit of the petitioner had been made in open Court; and an affidavit by the prothonotary was to the same effect.
    On 4th August, 1851, a per curiam opinion, by Church, P. J., was filed. It was as follows :
    Per Curiam.—On the 9th of May the Court refused to discharge the petitioner because of defect in form of petition, and this defect was corrected with leave of the Court, and the hearing on the merits continued to this term and new notice required. Now, no sufficient cause being shown, I cannot perceive why the Court should withhold the discharge. * * * * The whole matter being in fieri as it were, although the same be defective, it is time to have it put in form, and which is ordered accordingly. The petitioner, therefore, is not deprived of his right to a discharge by means of any cause shown, -and is therefore to be discharged on making the required assignment and taking the requisite oath.
    Signed Gr. Church, P. J.
    Entry on back of petition: “And now, to wit, August 4, 1851, the petitioner sworn in open Court agreeably to law and discharged. By the Court.”

      The pleas to the action were nil debet, payment, and payment with leave, &c.
    The material point for decision was the legal effect of the proceeding upon the petition. Galbraith, P. J., considered the decision in the case of Detwiler v. Casselberry, 5 W. & Ser., to be conclusive in this case, and instructed the jury to find a verdict for the plaintiff.

    This charge was excepted to, and the direction to the jury, inter alia, was assigned for error. .

      Marshall, with whom was Vincent, for plaintiff in error.

      Thompson, contrâ.
   The opinion of the Court was delivered by

Knox, J.

This case differs from Detwiler v. Casselberry, 5 W. & Ser. 179, in this: There the Court dismissed the application for the benefit of the insolvent laws, for the reason that the oath was taken before the próthonotary; and this was held to be a forfeiture of the bond. Here the affidavit to the petition, as originally filed, was taken before the same officer, and for this the Court was about to dismiss the petition; but, upon being satisfied that the oath was in fact taken in open Court, a new affidavit, properly administered, was permitted to be appended to the petition, and the hearing continued'until the next term, when the applicant was duly discharged.

It would perhaps have been better to have amended the jurat nunc pro tunc: but the proceeding was directed by the Court, and the defendant’s right should not be prejudiced by any defect as to form. The result was, the continuation of the hearing and final discharge upon the application, which, under the authority of Sheets v. Hawk, 14 Ser. & R. 173, is conclusive that the applicant had complied with all things required by law to entitle him to a discharge.

Upon the undisputed facts of the case, the defendants were entitled to a verdict.

Judgment reversed and venire de novo awarded.


author: Lowrie, J.

text:
    Knox versus Flack.
    1. A warrant of attorney by a minor to confess a judgment is void, no matter under what circumstances it was given; and the judgment should be vacated on motion, on the infancy being shown.
    2. If the Court below refuse to vacate it, it can be sot aside or reversed on error, where the fact of infancy appears on the record. If it does not there appear, this Court may direct an issue to determine its existence or otherwise.
    Error to the Common Pleas of Washington county.

    On the 23d October, 1849, there was filed in the prothonotary’s office a bond, dated 8th October, 1849, signed by John Knox, junior, promising to pay to Samuel Flack, or order, $1200 for value received, with an authority to the prothonotary to enter judgment for the same.
    On the 19th May, 1851, on part of the defendant, was obtained a rule to show cause why the judgment should not be stricken from the record, or opened, and a feigned issue formed to try its validity. In the petition or bill filed it was, inter alia, stated that the defendant was a minor at the time the bond in question was executed, and the circumstances under which he alleged the bond was executed were stated. It was alleged that $900 of the amount had been given to the defendant by the plaintiff, his father-in-law, to aid him in the purchase of a farm; and that the petitioner had received from the plaintiff a note for $100. That the money was advanced in pursuance of a proposition by the plaintiff to the father of the defendant, that each of them' should advance $1000 to buy a farm for the petitioner.
    In the answer it was alleged that the amount of the bond was composed of $900, advanced by the plaintiff for his daughter to aid in the purchase of a farm; of the note for $100, and of $200, the estimated value of certain personal property given to his daughter. It was alleged that the daughter was in delicate health when the bond was given; and that the bond was received in trust for the defendant’s children. The belief was expressed that the defendant was not twenty-one years of age when the bond was executed.
    It was stated in the opinion of the president judge of the Court below, that the wife died within ten days after the bond was signed.
    On the 18th May, 1852, the Court discharged the rule at the costs of the defendant, upon the plaintiff marking the judgment for the use of the defendant’s children, the issue of his late wife, and entering credit for $100; the interest of the judgment to commence from the 18th October, 1849.

      It was assigned for error that the Court erred in not making the rule absolute, and granting relief to the petitioner. 2. In not striking the judgment from the record.

      Watson, with whom were Acheson and Wilson, for plaintiff in error.
    That the judgment should be vacated, reference was made to 4 Watts 80; 1 Sto. Eq. sec. 241; 9 Barr 14; 7 Id. 21; Reeve's Dom. Rel. 251; 1 H. Bl. 75; 4 Moore & Scott 719; 30 Eng. C. L. 362; 4 M. & W. 650-654; 6 Cowen 393; 3 Harrington 403; 1 Dallas 165; 5 Ser. & R. 373, Moore v. McEwen.

      Montgomery and McKennan, for defendant in error.
    It was contended that according to American cases, a judgment confessed by an infant is not void, but only voidable on showing equitable circumstances which entitled him, to relief; and that the affording relief or refusing it was within the discretion of the[Court, and that the decision was not subject to revision in this Court. Reference was made to 13 Vermont 330; 1 Metcalf 559; 17 Wend. 419; 3 B. Monroe 72; 22 Pick. 550; 1 Hill 121; 17 Wend. 119; 5 Yerger 41; 8 Watts 78; 4 W. & Ser. 150.
    The opinion was expressed that the evidence showed an intent to advance the money for the separate use of the husband and wife. But whether that was so or not, it was said, was not material, as the principal part of the money was advanced by the plaintiff since the passage of the Act of 11th April, 1848; and that under the circumstances the husband held what he received on the account of his wife, as her trustee.
   The opinion of the Court was delivered by

Lowrie, J.

This is a judgment entered on a warrant of attorney against a minor, and the Court below refused to set it aside, and hence this writ. It is of no manner of importance what were the circumstances under which the bond was given, for the warrant is clearly void, and the judgment ought to have been vacated on the infancy being shown: 1 H. Bl. 75; 18 Eng. C. L. R. 209, n.; 30 Id. 362; 4 Mees. & W. 650; 2 W. Bl. 1133; 6 Cowen 393; just as the warrant of attorney of a married woman is void; 9 State Rep. 14; 18 Id. 79; 3 Whart. 309; 2 Camp. 272; 4 T. R. 362.

But can the judgment be reversed on error for this cause ? This Court has already twice decided that it can: 1 Dall. 165; 5 Ser. & R. 373. Here the error assigned is the fact of infancy, as it was in the cases just referred to, and so an error of fact was assigned in the case of Martin v. Ives, 17 Ser. & R. 364. Suppose it be denied, is the progress of this Court stopped ? Ho; for its jurisdiction does not depend on the plea which the defendant chooses to enter. We can, if necessary, order an issue to the Court below to try the fact. But in this case the assignment is not traversed. The plea is that the fact does not appear of record, but it does clearly appear in the proceedings, and is admitted in the argument set out in our paper-book. No issue of fact is therefore necessary.

But it is argued that the opening of a judgment is matter of discretion. True; but we lay aside all the proceedings in the Court below subsequent to the judgment, and look at the judgment itself; and if that was entered on a void warrant, it must be set aside: this is matter of right, not discretion. In the older, but now unusual practice, the parties might have audita querela, error eoram nobis, or bill in equity to vacate such a judgment, and error or appeal here, if he failed in those below. With us, a motion to vacate is the usual substitute for those old remedies. And as the bill in equity is not general with us, and the others not commonly used, it is proper to give redress on error. In the language of Ch. J. Gibson, 9 State Rep. 16, “ as the equity side of our courts of law is not broad enough to admit relief by bill, we are compelled to give effect to the principle by pleading or evidence, as the Court below ought to have done.”

Errors of this kind were formerly corrected only by audita querela, or on writ of error in the same court (coram nobis or vdbis), or they were, by reason of the illiberal formalism of the courts of law, making the machinery of justice more important than justice itself, thrown into chancery. But these remedies are little used with us, though they are recognised as still existing; 1 W. & Ser. 438; 17 Ser. & R. 344; 11 Id. 274, 290; 1 Browne 82; 1 Miles 46: and generally we arrive at the same result on motion; 8 Ser. & R. 235; 1 Rawle 323. There can be no doubt that either of these remedies would reach this case, and that if they were improperly administered, the error would be corrected here. The usual substitute for them has been tried and failed, and the party is equally entitled to correction.

Judgment reversed.


author: Knox, J. Black, C. J.,

text:
    Patterson versus Ross.
    1. A warrant must be judged of by what appears on its face when compared with the locality; and whether it locates precisely the lands in question can be determined by testimony ascertaining the situation of the lands and of the natural or artificial boundaries mentioned in the warrant.
    2. Where by any reasonable inferences which may be drawn from the evidence, the matters of description mentioned in the warrant can be so applied as to fix the identity of the land, it is for the jury to determine whether the warrant is sufficiently descriptive to cover the land in question; but if there be no evidence by which the descriptive parts of the warrant can be applied to the land in controversy, it would be error in the Court to refer it to the jury to say whether the description was vague or precise.
    3. -A warrant, dated 3d April, 1792, issued for 400 acres of land lying “north and west of the rivers Ohio and Allegheny and Conewango creek, on the west bank of Big Beaver creek, and to include the walnut bottom lying on the run that falls into said creek, nearly opposite an island between the Big and Little Balls, by estimation one mile above the Block House:” It being found from the evidence impossible to locate the “ walnut bottom” so as to be included in an extent of 400 acres, the land which might have answered that description equally well being large enough to contain several tracts of that size, it was Held, that the warrant was not descriptive.

    4. The jury were directed that if they found that a settlement had been commenced in 1792, on land north and west of the Ohio and Allegheny and Conewango creek, they might inquire whether it was perfected within a reasonable time by an actual residence upon the land; and that in determining this they might take into consideration the state of the country as to danger or otherwise from the Indians, the fact (if sufficiently proved) that the settler was in the service of his country, and the state of his health between the date of his first entry and of his actual residence in 1796: Held, that the instruction was proper.
    5. It having been decided that until the ratification, in December, 1795, of the treaty between General Wayne and the Indians in August, 1795, it was dangerous to settle lands under the Act of 3d April, 1792, in pursuance of a warrant: Held, that this rule was applicable to the ease of an actual settler, who claimed as such and who began an improvement in 1792; and that his return to the land, for the purpose of residence, in February, 1796 was within a reasonable time.
    Error to the Common Pleas of Beaver county.

    This was an ejectment instituted on 24th May, 1837, by James Patterson v. Thomas Ross, Samuel Ross and others, for 150 acres of land or thereabouts, situate in Brighton township, Beaver county.
    The plaintiff claimed the land in dispute, under a warrant to Joseph Williams, dated 3d April, 1792, “for 400 acres of land north and west of the rivers Ohio and Allegheny and Conewango creek, on the west bank of Big Beaver creek, and to include the Walnut Bottom lying on the run that falls into said creek nearly opposite an island between the Big and Little. Falls, by estimation one mile above the Block House.”

      The survey under this warrant was dated 3d April, 1794, and was returned on 10th August, 1795.
    Extract from the return of the survey.—“ The above is a draught of a tract of land surveyed on the 3d April, 1794, in pursuance of a warrant granted to Joseph Williams for 400 acres of land, dated the 3d day of April, 1792, situate north and west of the river Ohio, on the west bank of Big Beaver creek, including the Walnut Bottom lying on the run that falls into said creek, opposite a small island between the Big and Little Falls, by estimation one mile above the Block House, in District No. 10, in Allegheny county, called Walnut Bottom, containing 410 acres,” &c.
    On part of the plaintiff was further given in evidence a deed poll from Joseph Williams to Daniel Brodhead, dated 12th April, 1792; and it was further proved that James Patterson, the plaintiff, for a valuable consideration, became, by sundry conveyances, the owner of the title under the Joseph Williams warrant, and was, and, for a number of years, had been in possession of all the land included in the survey, except the land in controversy. There was also given in evidence the record of an ejectment—William Barker v. Samuel Ross, John Ross, et al., No. 22 of April Term, 1851, in the Court of Common Pleas of Beaver county, for 440 acres in Beaver county, and verdict for plaintiff and judgment thereon on 18th November, 1836.
    On part of the defendants it was contended, first, that they were not within the lines of the said survey, and witnesses were called to show that the south-east corner of that warrant was about 59 perches north of the place where the plaintiff claimed it to be; that if the location conténded for by the defendants was correct, then only about 30 acres of the land in dispute would be within the claim of the plaintiff.
    But, in the second place, it was contended that the said warrant in the name of Joseph Williams was not sufficiently descriptive to give title from its date; and that if title existed under it, it did not commence till the survey under it in April, 1794, before which time, it was alleged on their part, the title under which they claimed commenced.
    The defendants claimed under William Williams, who, it was alleged on their part, began an improvement on the land in dispute, in November, 1792.
    On their part, Thomas Williams was examined. He said that William Williams was his brother; that William Williams was in possession of the land in 1796. His first improvement .was in 1792, and he fetched his family down in 1796. A smart piece of ground fenced but not cleared. When I came down in May, he had commenced a new piece. * * * We came past where he made the first improvement; I heard the-report of guns and felt timid. I saw a good part of ground fenced in. He had a good, comfortable house, &c. * * * He was drafted. I knew he was absent before General Wayne came to Legionville with his army. It was ’94 or ’95 he was drafted in; not certain which. I can’t say how long he was away. He was drafted as a spy, and served his time.” * * * Sold to Thomas Ross and Samuel Jackson. * * * He said “ four or five acres fenced in on the first improvement, but not all cleared. The improvement he showed—four or five logs high; two or three years cut and put up. -They must have been cut in 1792.”
    It would have been a cabin if built out. He said he went lower down in 1796, to make the clearing, on the south side of Walnut run. He afterwards said “ I believe it was three months he was drafted—a general draft.”
    Another witness, John Gordon, said he came to the neighborhood in October, 1795. That he observed an improvement on the right as he came down—about seven or eight acres cleared; that he was at the raising of the house in 1796.
    He further said, he took notice of the improvement in 1795. That “ it appeared to be about a year old—the rest at the foot of the hill a great deal older. The last had been cut more than a year. William Williams claimed the ground, and also the house I helped him to raise.”
    Another witness, Geo. Harvey, in his deposition, stated that he knew William Williams; that he built early in 1796, and cleared and cultivated land; saw it first in 1795; saw no improvement, except a small cabin partly built; saw marks of improvement in 1795. He said, “ Williams was in bad health for two years before he moved on the land. No improvement could be made on account of Indians.”
    On 21st May, 1804, an application was made by Ross and Jackson, vendees of William Williams, for a vacating warrant “for 400 acres of land, on the falls of Big Beaver creek,” &c. The application stated, that “said tract (or the upper half thereof) was surveyed in pursuance of a warrant granted to Joseph Williams, dated 3d April, 1792, and which said tract (or the lower half thereof) was surveyed in pursuance of a warrant granted to William Barker, being dated the 3d April, 1792, who hath not complied with the conditions of the said warrant, and the 9th section of the act of 3d April, 1792, whereof default has occurred.” This application was accompanied by an affidavit by Wm. Williams, that he, in November, 1792, made some improvement on the land by deadening some trees, and laying the foundation of a cabin; and that, in February, 1796, he built a cabin on it, and moved his family there on the 14th March following, &c.

      Thomas Williams, in an affidavit accompanying the application, stated that William Williams moved his family on the land in March, 1796, and has resided on it with his family since; that he built a cabin thereon; cleared about 16 acres; fenced and cultivated the same; and has raised grain every year, from the first year of his settlement., The year 1792 was not mentioned in it.
    In another affidavit, by John Hill, the improvement in 1792 was not mentioned, but only that Williams settled on the tract in March, 1796.
    On 4th April, 1807, a warrant issued to Ross and Jackson, in pursuance of said application, for 400 acres—surveyed 2d September, 1807, 400 acres and allowance, and returned 20th October, 1809. 19th February, 1811, patent to Ross and Jackson. The defendants also produced testimony in order to prove the alleged improvement in November, 1792, and a resident settlement on the tract, in the spring of 1796. But there was no evidence of any designation by William Williams in 1792, or at any time before 1796, of the bounds of his claim, by marks upon the ground. Also the defendants produced the testimony of surveyors and others, in order to show that the land in controversy was not included in the survey of the plaintiff, but that the plaintiff’s survey had been shifted from the land called for in the Joseph Williams warrant; and also as to the locality of the island, of the Walnut Bottom run, of the Walnut Bottom, and of Patterson’s and Pugh’s dams; which dams, the plaintiff alleged, designated the Big and Little Falls.

    The plaintiff gave rebutting testimony, by surveyors and other witnesses, for the purpose of showing that the land included in the survey of the Joseph Williams warrant, answered the calls in the warrant; that the warrant was not shifted, and that there were falls on the Beaver called the Big and Little Falls, and their locality—also the locality of the Walnut Bottom run, and of the Walnut Bottom, and of the island. Other testimony was given on both sides, as to the surveys, courses of the streams of water through the tract, &c. There was in evidence the books of the deputy-surveyor of Beaver county, containing a draft of a survey made for Robert McKinley, on the 24th November, 1793, for a tract adjoining the William Barker tract, and also of a survey made on the William Barker tract, on 4th April, 1794, which tract adjoined the tract of Joseph Williams, and also of a tract surveyed for Thomas Straten, on the 5th June, 1795, also adjoining the Joseph Williams tract, in order to prove that, between 1792 and 1796, no danger was apprehended in that part of the country from the Indians. The testimony of plaintiff and defendants conflicted.
    On the trial, the plaintiff contended that the Joseph Williams warrant was sufficiently descriptive of the land it called for, to give title from its date. On the part of defendants, it was contendéd that the Joseph Williams warrant was indescriptive, loose, and vague, and only gave title from the date of survey. The Court charged the jury, as matter of law, that the said warrant was indescriptive, loose, or vague, and only gave title from the 3d of April, 1794, the date of the survey—thereby, it was said, taking that part of the case from the consideration of the jury. This instruction was the subject of the first assignment of error.
    The plaintiff further contended that if the jury should find that the Joseph Williams warrant was not descriptive of the land, but was loose or vague, the title by survey under it, on the 3d April, 1794, had priority over that of defendants, because their application and accompanying affidavits showed that there was in fact no connexion, and that none was claimed at the time, between what was called the improvement of 1792, the girdling a few trees, as it was said, and putting up a few logs for a cabin, and the personal resident settlement of 1796. That the application of itself showed that it was not upon the improvement of 1792, but the settlement of 1796. That the improvement of 1792 was only mentioned in the application for designation of the land, not for title. That the application recognised title by virtue of the Williams warrant and survey, but alleged it was forfeited or lost because the warrant-holder had not complied with the provisions of the 9th section of Act of 3d April, 1792, which required the holder of a warrant, “ within the space of two years next after the date of the same, to make or cause to be made an actual settlement therein, by clearing, fencing, and cultivating at least two acres for every hundred acres contained in one survey; erecting thereon a messuage for the habitation of man, and residing or causing a family to reside thereon, for the space of five years next following his first settling of the same.”
    The Court were requested, on part of the plaintiff, to charge as matter of law that William Williams’s settlement was not made until after the date of the plaintiff’s survey. The Court charged that, “ Whether there is sufficient evidence to satisfy the jury that William Williams entered in 1792, with the present intention of making an immediate personal resident settlement; and if so, whether he perfected his settlement by actual residence within a reasonable time, we cannot say; but it would, in our opinion, be error for the Court to assume the negative of these propositions as matters of law.” This answer was the subject of the second assignment of error.
    On part of the plaintiffs it was also contended that if William Williams began to improve the tract in November, 1792, by girdling a few trees, and putting up three or four logs of a cabin, and did no more to indicate an intention to make upon it a personal resident settlement, but left it, and did not return till February, or in the spring of 1796, his return in view of all the testimony was not within a reasonable time, and was, in law, an abandonment of his alleged improvement in 1792, and he could derive no title under it. But the Court instructed the jury, “that, in determining the question whether or not the original entry was followed within a reasonable time by an actual residence, they might take into consideration the state of the country as to danger or otherwise from the Indians; the fact (if sufficiently proven) that the settler was in the service of his country, and> the state of his health, between the date of his first entry and that of his actual residence in 1796.” This was the subject of the third assignment of error.
    The verdict of the jury was for the defendants.

      Cunningham and Fetterman, for plaintiff in error.
    It was contended that the warrant to Joseph Williams was a descriptive warrant, and that the question as to its character should have been submitted to the jury: cited 2 Yeates 244; 4 W. C. C. R. 74; 4 Bin. 58. That whether or not it was descriptive was a question of fact for the jury: 3 Bin. 18; 7 Ser. & R. 187; 3 Watts 469; 2 Yeates 315; 2 Id. 149; 15 Ser. & R. 226; 6 Id. 134; 2 Bin. 66; 2 Penna. Rep. 401.
    As to the second assignment. It was contended that the appfiication of Boss and Jackson was made under an impression that the title under the Joseph Williams warrant was forfeited by the warrant-holder not having fulfilled the condition.prescribed in the 9th section of the Act of 1792, and that the tract was thereby open to settlement; also, that it was evident, from the application and the affidavits submitted with it, that the settlement relied on was begun in 1796, and that the improvement in 1792 was referred to for the mere purpose of designation, and not for title. It was not stated in the application that the improvement of 1792 was begun with the view of acquiring title. It was contended that applications and warrants must be judged of from what appears on their face: 1 Yeates 284; 2 Id. 244; 6 Barr 370; Id. 2L In the application it was not stated that Williams does not state that his first improvement was continued. The evidence vras, that it was abandoned, as in 1796 he began an improvement at a different place, on another part of the tract: 6 Barr 21. As to what constitutes a settlement, reference was made to 4 Dallas 162; Id. 366. If he was drafted, it was said it was but for three months, and did not excuse a delay of nearly four years. Also, that the two witnesses, w'hose affidavits accompanied the application, do not refer to the improvement in 1792; and it was said that the law required that the settlement be proved by two witnesses. It was said that the Court should have charged that the settlement was made in 1796; and that deadening some trees, and laying the foundation of a cabin, was not' sufficient to give title. An improvement must not be abandoned: 2 Watts 410; 5 Id. 13; Id. 174.
    Fear of the Indians did not prevent the deputy-surveyor from making a survey of the tract in dispute. Ill health did not account for it, as Harvey testified that Williams was in ill health for two years, whereas it was contended that there was a neglect of four years. It was said, that it was held that, by the terms of the Act of 1786, nothing will excuse a settler from continuing his residence on the land, except the public enemy, or being called into military service: 2 Watts 410; 5 Watts 13. In the Act of 1792, the exceptions are, prevention by the public enemy or by death; entering into the military service is there omitted. It was therefore contended that, if there was an abandonment by William Williams of his improvement of 1792, then his settlement was made in 1796, which was subsequent to the survey under the Joseph Williams warrant; from which time, it was alleged, if that warrant was not descriptive, the title under it vested.

      Purviance and Sullivan, with whom were Shannon and Chamberlin, contrá.
    The defendants below, by the evidence of settlement, have fixed the time when William Williams made the entry, and his intent in making it; and it was said that, the settlement being in advance of the survey on the warrant, the title attached, unless by the absence of the settler it was lost: 3 Yeates 280; 2 Id. 430; 1 Bin. 166. It was said that William Williams was on the land in 1792; and, it was’contended, also in 1794 and 1796. It was said that the jury have found that he was on the land from 1792 to 1794. That his brother testified that he was drafted in 1794; and it was said that the improvement he made before he left was evidence of his having been upon the land between 1792 and 1794. Absence may be accounted for: 2 Harris 253; 4 Id. 315; 1 Id. 468; 2 Watts 409; 1 Watts 46; 4 Yeates 330. Why should not a settler have the length of time allowed to a warrant-holder before abandonment is to be presumed ? (Two years after the pacification of Wayne’s treaty, which was made at Meadville on. 3d August, 1795 and ratified on 23d December following, is a reasonable time for making a settlement which has been prevented by the enemy: Hazard’s Lessee v. Lowry, 1 Bin. 166.)
    The title by improvement commences with the girdling of the first tree; and if a delay ensues, it may be accounted for in a reasonable manner: 4 Yeates 562; 2 Bin. 127. It was said that, in the case of Hazard’s Lessee v. Lowry, 1 Bin. 171; Judge Tilghman said, “It is notorious that for more than two years from 13th April, 1792, there was open war with the Indians, which rendered it dangerous to attempt a settlement of the land in dispute.”
    It was further contended that the warrant of Joseph Williams was not descriptive, so as to give title from its date. It was said that at that date Walnut Bottom run was unknown except to the surveyor. That if the run were fixed, it was necessary to find the bottom. The bottom extends for miles along the run. If the whole bottom were included, what shape would it give the survey, and where would it start on Big Beaver creek ? It was said that one tract after another above this warrant includes Walnut Bottom, on the run. It was said that this warrant might have been located ten miles above where it was located, if, by extending it back, Walnut Bottom could have been included; for that stream runs, to some extent, in nearly the same direction with the Big Beaver; and it might not thus interfere with the description, nor with the fact of Walnut Bottom run falling into Big Beaver opposite an island, between Big and Little Falls, by estimation a mile from the Block House. It was said that by beginning at any point at the head or foot of the island, and embracing land on the run so as to include 400 acres, the vague character of the description was unquestionable. That there is Walnut Bottom land extending far up this run. There is no starting point fixed in the warrant. That the Falls extend perhaps three miles up Beaver creek.
   The opinion of the Court was delivered by

Knox, J.

The Joseph Williams warrant, upon which the plaintiff’s title was based, bears date the 3d April, A. D. 1792, and is for four hundred acres of land north and west of the rivers Ohio and Allegheny, and Conewango creek, on the west bank of Big Beaver creek, and to include the walnut bottom lying on the run that falls into said creek nearly opposite an island between the Big and Little Falls, by estimation one mile above the Block House.

It was contended, upon the trial, that this was a descriptive warrant, and that the title commenced from its date. The Court instructed the jury that the description was a loose or vague one; and that the title dated from the survey, which was on the 3d of April, 1794, two years subsequent to the date of the warrant.

This instruction as to the character of the warrant is assigned for error, upon the ground that it was for the jury to say whether the warrant was precisely descriptive or not.

A warrant must must be judged by what appears upon its face, when compared with the locality; and whether it locates- precisely the lands in question, can only be determined by testimony ascertaining the situation of the lands and of the natural or artificial boundaries mentioned in the warrant: Norris v. Monen, 3 Watts 465. Where by any reasonable inferences which may be drawn from the evidence, the matters of description mentioned in the warrant can be so applied as to fix the identity of the land, it is for the jury to determine whether the warrant is sufficiently descriptive to cover the land in question; but if there is no evidence by -which the descriptive parts of the warrant can be applied to the land in controversy, it would be error in the Court to refer it to the jury to say whether the description was vague or precise.

Where there is no evidence in a cause from which a jury would be authorized to find the existence of a fact, the Court. must presume its non-existence.

The matters of description embraced in the Williams warrant, are, 1st. That the 400 acres of land should lie upon the west bank of the Big Beaver creek.

2d. That the walnut bottom lying on the run that falls into said creek opposite a small island between the Big and Little Ealls, by estimation one mile above the Block House, should be included.

Upon an examination of the ground upon the west bank of the Big Beaver creek, a run is found falling into the creek near the point mentioned in the warrant; and along the run for some miles up the creek is found bottom land, but no portion of it more than any other designated as “ Walnut Bottom.” The run is laid down upon the original survey as “ Buck run;” when its name was changed to “ Walnut Bottom run,” was not shown. It was impossible from the evidence to locate the “ Walnut Bottom” which the warrant called for; and without this it was in vain to call the warrant a descriptive one. Several warrants of four hundred acres each might have been located upon ground that would have answered the description equally as well as the land embraced in the Joseph Williams survey.

In the absence of evidence tending to connect the description in the warrant with the land actually surveyed upon it, the judge was right in saying that, in point of time, the title commenced with the survey.

The defendants claimed under an actual settlement made by one William Williams, and which they alleged was commenced as early as November, a. d. 1792.

This was denied by the plaintiff, and the Court was requested to instruct the jury that there was no evidence that the settlement began anterior to the survey. The refusal to charge as requested is the second error assigned.

Thomas Williams, the brother of William, testified that the improvement was commenced in 1792, and that after it was so commenced his brother was drafted as an Indian spy and served his time. That he returned to the land with his family in 1796, continued his improvements, and remained there until he sold to Ross and Jackson.

John-Gordon saiv the improvement in 1795, and says that it appeared to be about a year old, and that at the foot of the hill a great deal older.

George Harvey in his deposition stated, that in 1795, he saw a small cabin partly built on the land, and marks of an improvement; and that in 1796 Williams built a cabin, cleared and cultivated land, and remained on it until the witness left the country. He also stated that Williams was in bad health for two years before he moved on the land, and that no improvement could be 'made on account of the Indians.

To the ápplication made by Ross and Jackson for a vacating warrant, given in evidence by the plaintiffs, an affidavit of Wm. Williams is appended, made on the 21st day of May, 1804, which stated “that he, this deponent, in the month of November, 1792, and not before, made some improvement on the above described tract of land applied for, by deadening some trees and laying the foundation of a cabin, and that in the month of February,. 1796, he built a cabin on said tract, twenty by twenty, and moved his family there on the 14th of March following, and that he has resided on said tract from that time until the present date; and further, that he has cleared at least sixteen acres of land, fenced and cultivated the same on said tract, and that no other settlement has ever been made by Jos. Williams or Barker, or by any person for them, and further saith not.”

Upon this and the accompanying affidavits the land office, in issuing a warrant to Ross and Jackson, charged interest on the purchase-money from 1792.

Whether this evidence was sufficient to justify'the jury, in finding “ that Williams entered in 1792 with the present intention of making an immediate, actual resident settlement, and that he gave evidence of such intention by some notorious act of dominion upon the land,” is not for us to determine. Clearly there was evidence for the jury, and there is no complaint that it was not submitted under proper terms, and with the necessary restrictions and qualifications.

If the jury found that Williams had commenced a settlement in 1792, they were directed to inquire whether it was perfected within a reasonable timé by an actual residence upon the land; and were told, that in' determining this “they might take into consideration the state of the country as to danger, or otherwise, from the Indians, the fact (if sufficiently proved) that the settler was in the service of his country, and the state of his health between the date of his first entry and that of his actual residence in 1796.”

The complaint against this portion of the charge is not sustained by previous adjudications of this Court. The rule laid down by Chief Justice Tilghman at an early day, has never been departed from'. In Wright v. Small, 4 Teates 562, it is stated thus: “If an improvement is begun with an intent to make an immediate settlement, and prosecuted with due diligence till a settlement Í3 completed, the title relates to the commencement of the improvement. It is essential that there should be an intention of immediate settlement.

“ If a small improvement is commenced, and considerable delay takes place before there is any residence, it lies on the improver to account for it in a reasonable manner. Much will depend on the situation of the country with respect to danger from an enemy, the difficulty or facility of procuring provisions, the health of the improver and his family, and a variety of circumstances which must be judged of as they are brought forward.”

Again, in Cosby v. The Lessee of Brown, 2 Bin. 127, the same distinguished and eminent jurist says, “A liberal allowance is made for a man who has evinced a bond fide intention to settle. Danger from an enemy, the death or sickness of the party or his family, the difficulty of procuring provisions, and a variety of other circumstances, are to be taken into consideration.”

The absence of Williams from the land was at the furthest but a little more than three years, and this was accounted for, if the defendant’s witnesses wrnre believed, by showing that a portion of the time he was in the service of his country as an Indian spy; also was in bad health, and that there was danger to be apprehended from the Indians on the frontier. The treaty made between General Wayne and the Indians at Fort Greenville, in August, 1795, was not ratified by the President and Senate of the United States until the 22d day of December, 1795. Up to this period, it has been judicially determined that it was unsafe and dangerous to settle lands under the Act of 3d of April, 1792: 2 Yeates 450; 1 Binn. 170. This rule was applied in favor of a warrant-holder, to excuse an actual settlement within the two years required by the statute. I can see no good reason why it should not be applied to the case of one who had commenced an actual settlement which he was compelled for a while to postpone. An actual settler should be placed at least upon a footing of equality with one who purchases for the profit to be made by a resale.

If then the law fixed the 22d of December, 1795, as the earliest day when Williams’s settlement could have been renewed with safety, there was little room for the jury to say that February 1796 was.not a reasonable time for his return to the land with his family.

The errors assigned are not sustained.

Judgment affirmed.

Black, C. J.,

dissented, considering that the warrant in the name of Joseph Williams was descriptive, and that its character should have been submitted to the jury.

Woodward, J., concurred in the dissent of Black, C. J.


text:
      Girts versus The Commonwealth.
    1. The admission of evidence on an indictment in the Quarter Sessions, is not the subject of revision in this Court.
    2. It was not assignable .for error that one of the associate judges, who was the prosecutor in an indictment, sat upon the bench during the trial of the case, the names of the judges not being stated on the record, and it not there appearing that the prosecutor was one of them. Such fact, stated in the opinion of the judge in overruling a motion for a new trial, was not properly before this Court.
    3. A verdict recorded of guilty of the four last counts in the indictment, is in substance a finding upon all of the counts, and is in effect a finding of guilty upon the four last counts, and of not guilty as to the others.
    4. A paper returned by the jurors stating their verdict, though filed, is no part of the record, and cannot be used to contradict the record. _
    _ 5. The verdict entered was “guilty of thp four last counts in the indictment.” After the discharge of the jury, but during the same week of the term, the record was amended so as to read, “ guilty upon the four last counts in the indictment.” Held, that the amendment was merely formal.

    Error to the Court of Quarter Sessions of Elk county.

    This was the case of a conviction of J. Girts, on an indictment against him, at October Sessions, 1852, for passing counterfeit money. On the docket was stated “ George Dickinson, Prosecutor.”
    The indictment contained eight counts.
    October 5, 1852, the grand jury’found a true hill. On 31st May, 1853, the defendant pleaded not guilty. On 1st June, 1853, the jury returned a verdict as follows: “We find the defendant guilty of the four last allegations of the indictment.” The verdict was entered as finding the defendant guilty of the four last counts in the indictment.

    On the same day a motion was made for a new trial; and on 2d June, one was made in arrest of judgment, on the alleged ground that the jury found the defendant guilty of the four last counts of the indictment, without any finding as to the first four counts. On 3d June both motions were overruled, and on the same day the Court directed the verdict to be so amended as to read, “We find the defendant guilty upon the four last counts in the indictment.” On the same day the defendant was sentenced.
    It was said in the paper-book, on part of the plaintiff in error, that this amendment was made after the jury were discharged, and one day after the whole panel had been discharged.
    In the opinion of the Court overruling the motion for a new trial, it was stated that “Judge Dickinson, who is an associate judge of this Court, was marked as prosecutor on the bill of indictment, and was sworn and examined as a witness on the trial,” and proved the uttering to him of the bill which is set out in the several counts in the indictment. That “he sat on the bench during the trial of the cause, but did not advise with the other members of the Court, or take any part in the trial in his official capacity.”
    See the opinion of Knox, J., as to the first five assignments. The sixth was, The Court erred in pronouncing judgment on the verdict as amended, because, even if the Court possessed the power to amend, the verdict as amended is substantially defective in this, that it does not find the defendant guilty upon the last four counts in the indictment, in manner and form as he stands indicted, nor does it make any disposition of the first four counts.

      Lucas, for the plaintiff in error.
    It was, inter alia, contended, that the term “allegations” should not be construed to mean counts. It was said that the last count of the indictment contained ten distinct allegations. But if it were so construed, the finding was defective, as the defendant was not found guilty in manner and form, &c.; and that there was no finding as to the first four counts. Further, that the verdict was not amendable after the jury was discharged.

      Johnson, contà.
   The opinion of the Court was delivered by

Knox, J.

The plaintiff in error was indicted, tried, convicted, and sentenced in the Court of Quarter Sessions of Elk county for passing' counterfeit money. The record is' brought into this Court for review, and six errors are assigned to the proceedings below.

The first relates to the reception of evidence, and is not examinable here.

It is alleged that Judge Dickinson, one of the associate judges of Elk county, was the prosecutor, and occupied his seat upon the bench during the trial. This is the second error assigned.

It does not appear by the record that the prosecutor was one of the judges before whom the case was tried. The names of the judges are not given. What is said upon this subject by the President of the Sessions, in refusing the motion for a new trial, is not properly before us, and cannot be noticed. We examine the record only, and it does not sustain the assignment.

A motion was made in arrest of judgment, founded upon the following reason, which was filed.

The jury found the defendant guilty of the four last counts of the indictment, without any finding as to the first four counts.

This motion was overruled, and properly so. The finding is in substance, though not in form, upon all the counts, and is in effect a verdict of not guilty as to those not mentioned. This disposes of the 3d and 6th assignments of error.

The 4th and 5th relate to the verdict and its amendment by the Court.

There is a paper filed in the case, purporting to be signed by the jurors, which roads: “We find the defendant guilty of the four last allegations in the indictment.”

This paper is no part of the record, and cannot be used for the purpose of contradicting the docket entry. Jurors often, in returning written verdicts, use inappropriate words to express their finding. This is corrected by the Court before the verdict is entered of record, after which it is read to the jury as entered, and the entry thus made cannot he controverted by the original paper returned and filed.

The docket entry in the case under consideration is as follows:

“ May 31, 1853, jury called and sworn, viz., &e., &c., &c., twelve good and lawful men of Elk county, who find the defendant guilty of the four last counts in the indictment.
“ Andmow, June 3, 1853, the Court direct the alteration of the entry of the verdict of the jury, so that it will read upon the four last counts in the indictment.”

It will be seen that the only amendment made by the Court in the verdict after it was originally entered, was to substitute the word “upon,” for “of.” This was mere matter of form, and entirely unnecessary, as the sentence .might well have been pronounced upon the verdict as first entered. Guilty “ of the four last counts in the indictment,” means guilty of the offence therein, charged. Upon the whole ease, we see nothing that calls for our interference.

Judgment affirmed*


text:
    Clarke versus Benford.
    1. Regularly the return to a commission should he addressed' to the prothonotary; but where the deposition, though received by the plaintiff, was submitted to and first examined by the defendant’s attorney, and was after-wards filed, the irregularity in the return was not a sufficient reason for excluding it.
    2. It is not necessary that the interrogatories should be incorporated into the body of the deposition. It is sufficient that they have been severally answered.
    3. Where, in the caption of a deposition taken under a commission, it was stated that the witness was duly sworn in the case; and in the certificate at the end of the deposition it was stated that -the witness was first duly sworn to testify the truth: Held, that the qualification was not irregular.
    Error to the Common Pleas of Somerset county.

    This was an action of covenant by David Benford v. George A. Clarke, on an. article of agreement dated 2d February, 1848, by which the plaintiff agreed to manage a tannery, &c. The breach assigned was the non-payment of $500. Plea, payment, set-off, and that plaintiff mismanaged the tannery, &c.
    On 30th July, 1852, on part of the plaintiff, a rule was entered to take depositions on a commission, and interrogatories were filed. On 16th August, 1852, a commission was issued to William Small, of Madison county, Ohio.
    It was said, on the part of the plaintiff in error, the defendant below, that on the 8th February, 1853, the return to the commission was handed to the prothonotary by the plaintiff’s counsel, not under sealed cover. It was stated, in the certificate of the commissioner, that Martin B. Loy, the witness, was first duly sworn to testify the truth. The reading of the deposition was objected to on the trial of the cause, but it was admitted, and exception was taken. See the opinion in this case for a statement of the objections made to the reading of the deposition.
    The deposition was in the form of answers, viz.: Answer to- 1st question; answer to 2d; answer to 3d, &c.; the interrogatories not being written in the deposition.
    February 12, 1853, verdict for plaintiff for $398.17.
    The same objections which were made to the reading of the deposition, were assigned as error. The third, however, was not insisted upon on the argument.

      Edie, for plaintiff in error.
    It was contended that the witness should have been sworn to make true answers to the interrogatories, and not sworn in chief; and that the commission should have been directed to the prothonotary, and not to the plaintiff or his counsel: 7 Ser. & R. 16, Withers v. Gillespy.

      A. H. Coffroth, for defendant in error.
    It is not a sufficient reason to exclude a deposition taken on commission, that the commissioner, by mistake, directed it to the party or his counsel: New York State Bank v. Western Bank, 2 Miles 16. It was said that in th§ present case, though the deposition was directed to the plaintiff, it was not opened by Mm and by his counsel only so as to see what it was, and that it was handed by him to the defendant’s counsel, who was the first to take it from the cover and examine it.
    2. If all the interrogatories are substantially, if not formally answered, it is sufficient: 2 Miles 16; 2 Whar. Dig. Practice 635.
    3. It was said that the oath taken must be considered to have been to testify the truth in relation to the interrogatories, the presumption being that the oath was properly administered. That the certificate showed that the witness was sworn, and that he made the answers subscribed by him; which, it was said, could not have been otherwise than to the interrogatories. Reference was made to case of Hastings’ Administrator v. Eckley’s Administrator, 8 Barr 194.
   The opinion of the Court was delivered by

Knox, J.

Four objections were made in the Court below to the admission of the deposition of Martin B. Loy.

1. That the deposition was directed to the plaintiff or his counsel, and not to the prothonotary.

2. That the answers do not appear to be answers to the interrogatories ; and that the interrogatories should be written down at length before each answer.

3. That no notice of the interrogatories filed was'given to the defendant or his attorney.

4. Because the witness was sworn in chief,, and not specially, to answer the interrogatories.

The objections were overruled, the deposition admitted; and this is the error assigned.

It is true that the commissioner directed his return to the plaintiff or his attorney. The evidence, however, shows that the deposition when first opened was exhibited to the defendant’s attorney, by him examined and immediately filed in the prothonotary’s office where it remained up to the trial. Regularly, the return should have been addressed to the clerk of the Court; but where it clearly appears that no one could possibly be injured by the mistake of the commissioner in this respect, where the deposition was, first actually examined by the objecting party, and where it was at once filed among the records, the irregularity in the return is not a sufficient reason for excluding it.

As to the second objection, it appears that the interrogatories were severally answered, and this is all that is required. It is not necéssary that the interrogatories should be incorporated in the body of the deposition.

The third objection is not relied on. The evidence proves that proper notice was given.

4. The commissioner in the caption states that the witness was duly sworn; and in his certificate, “ that the above-named Martin B. Loy was by me first duly sworn to testify the truth.”

Surely it cannot be inferred from this that there was any irregularity in administering the oath. The addition, “ to testify the truth,” does not impair the force of the certificate that he was “duly sworn.”

There was no error in admitting this deposition.

Judgment affirmed.