text:
    Lindsley versus Malone.
    1. The refusal of the Court below to quash a writ of foreign attachment, moved for on account of residence in the state, is not the subject of review in the Supreme Court.
    2. Whether, in a proceeding by foreign attachment, the question of residence can be raised by plea in abatement, not decided; but it cannot be pleaded in bar after an ineffectual motion to quash the writ for that cause, and after appearance to the suit.
    3. In a suit by the remaining partners on a contract by the defendant with the ■ partnership, one of the partners, who, after the institution of the suit on the contract, sold out his interest in the firm to another of the partners, with the assent of the third partner, is not a competent witness for the plaintiffs.
    4. A witness, who ivas a factor of the defendant to receive his lumber, wrote to the defendant that he had paid freight on certain lumber to the carriel-, and that the same had been refunded to him by the plaintiffs who had sawed the lumber under contract with the defendant; but there was no evidence that the letter had been received by the defendant:

      Held, that it was proper to submit such evidence to the jury with instructions that from it a ratification by the defendant of the payment of the freight might be inferred.
    Error to the District Court, Philadelphia.

    This was a proceeding by writ of foreign attachment, issued on 28th December, 1850, by W. Malone and E. Buckman v. Edward Lindsley. The writ was served on Henry Oroskey of Philadelphia, as garnishee. The defendant appeared d. l>. e. to the writ. On 4th March, 1851, he obtained a rule to show cause why the writ should not be quashed, on the ground that he was a resident and inhabitant of the state of Pennsylvania when the writ issued. In support of the rule depositions were read to the Court by the respective parties, but the Court discharged the rule and permitted the action to proceed.
    The Court, inter alia, observed that residence is a question made up of fact and intention. The defendant was an unmarried man, whose original residence was in New Jersey. “He has been engaged in the lumber business in Luzerne county, and has boarded and lodged near the scene of his operations. He has also paid taxes and military fines there. In general, the place where an unmarried man has his business, and exercises his political rights, is his domicile; but not conclusively so. His declarations may unequivocally evince that his absence from his original home is but temporary, and that his intention never was to change it. This appears to us to be the case upon the depositions.”

      The plaintiffs filed a declaration in assumpsit containing the common counts, and furnished a bill of particulars setting forth the items of their claim. The defendant pleaded non assumpsit, payment and set-off, with leave, &c., and also the following special plea:—
    “And for a further plea in this behalf, by leave of the Court, the defendant saith that the plaintiffs ought not to have or maintain their aforesaid action of foreign attachment ■ against him, because he says, that at the date of the issuing of the said writ of foreign attachment he resided within the Commonwealth of Pennsylvania.”
    The plaintiff moved the Court to strike off this plea, which the Court accordingly did. The opinion was to the following effect, viz. By the appearance of the defendant to a foreign attachment, under the 64th section of the Act of 13th June, 1836, and taking defence in the action, the case proceeds in all respects as if commenced by summons. It is not competent for the defendant to raise by plea any question affecting the regularity of the process. He admits it by his appearing and taking defence. As well might a freeholder, sued by capias, plead his privilege in bar; or a defendant in any case, that he was not served. These questions are collateral to the merits, and the defendant has no more right to a jury trial to determine the fact which may be involved in them, than he has to a jury trial upon other collateral question of notice, &c., occurring in a suit at law.
    On the trial, certain depositions of Stull and others were offered on part of the defendant, to show his residence in this state when the writ issued, and that he was then within this state. The testimony was objected to on the ground that the matter had been previously disposed of by the Court on the motion to quash the. writ. The testimony was overruled.
    The defendant was engaged in cutting and sawing lumber in Luzerne county. Part of the plaintiffs’ lumber sawéd there or elsewhere, was sent for sale to Philadelphia, to H. Croslcey, his factor. On the trial, the plaintiffs claimed to recover the price of certain store goods and money, alleged to have been sold or advanced to or for him, and other sums of money claimed by the plaintiffs, for sawing lumber, &c., under a written contract, dated December 13,1849, between Malone and Buckman, of the one part, and the defendant on the other.
    A defence was set up against the claim of the plaintiffs under said contract, and the defendant, on grounds stated in a notice, claimed above $>1000 to be certified in his favor by the jury.
    On part of the plaintiffs, Dr. B. Malone was offered as a witness, and he was objected to on the ground of interest. He said he was interested as a partner in the firm, when the contract with the defendant was made; he was to participate in the profits, if any. He was interested up to January, 1851, and he sold his interest in the real and personal estate of the partnership, to W. Malone, in January, 1851, and took his bond. He said ■ he had no interest in this suit, and no claim against Lindsley in this matter. , He was admitted.
    On part of the plaintiffs, it was offered to prove by Henry Croskey, that he, as agent of Malone and Buckman, paid on behalf of Lindsley the defendant, above $50 to the captain of a canal boat, for the carriage of lumber. He was objected to, but was admitted, and he testified that he paid f 51.92 to the captain of the boat, and wrote to Lindsley to inform him of the payment. He said he could not say that Lindsley ever received his letter. The letter was not answered.
    The Court charged the jury that there was evidence from which they might find a ratification by the defendant of the act of Croskey in paying .the freight.
    January 31, 1853, verdict for plaintiffs.
    It was assigned for error, — 1. The Court erred in discharging the rule to show cause why the writ should not be quashed. 2. In striking off the plea. 3. In rejecting the depositions of Stull and others, as to the matter of the residence of the defendant. 4. In admitting the testimony of Dr. Malone. 5. In admitting the portion of the testimony of Croskey relating to the contents of the letter alleged to have been written by him to the defendant. 6. In charging that there was evidence from which ratification by the defendant, of the payment by Croskey might be inferred.

      Porter, for plaintiff in error.
    It was contended that the residence of the defendant was in fact in Luzerne county, Pa., and that the declarations of the defendant testified to, if made, could not change the fact. But if the Court had the right to decide the question, it was contended that their decision was not final, and that this Court had the right to review it. As to the question of domicile reference was made to Story on Con. of Laws, sec. 44-47. If a man is unmarried (as the defendant was) that is generally deemed the place of his domicile where he transacts his business, exercises his profession, or assumes or exercises municipal duties or privileges. On the subject of domicile were further cited, 2 Peters’ Adm. Dec. 450; 7 Leg. Int. 180; Reed v. Ketch, 1 Dallas 153; Id. 480 ; 3 Yeates 55.

    The special plea as to residence was filed on the day on which the narr. was filed. A plea can be struck off only when it is out of time or irregular. It was contended that, where there is any evidence of a fact it should be submitted to the jury: 10 Watts 402; 6 W. & Ser. 60; 3 Peters 433.
    4th. Dr. Malone was incompetent: 5 W. & Ser. 509, Post v. Avery; 10 Barr 428; 1 Harris 46. All the members of a firm are liable for goods sold to either for the use of the firm, although the existence of the partnership was not known to the vendor: 5 W. & Ser. 333. The witness was liable to the plaintiffs on the record to contribute his proportion of any amount which may be recovered by the defendant under his plea of set-off. There was no paper shown discharging him from liability to his copartners.
    5th & 6th. It was alleged that there was no evidence of the receipt of the letter of Croskey, and it was contended that the evidence of ratification was insufficient. The defendant alleged that he had settled with the captain of the boat for the freight in question.

      Glay and Jones, for defendant.
    The motion to quash the attachment looked only to summary relief, and the judgment was interlocutory. Error will not lie to such judgment: 10 Barr 42, Brown v. Ridgway. No bill of exceptions lies to such evidence. Also cited 3 Ser. & R. 410; 2 Yeates 162; 1 Bin. 222.
    2d. The plea was properly stricken off, both on account of its form and the time it was pleaded. In form it was a plea in bar, alleging matter which, if established, was ground for quashing the writ. Such matter can only be pleaded in abatement. It was not supported by affidavit.
    As to the time of pleading, treating it as a plea in abatement, it was filed with other pleas in bar, which is not allowable, and was ground for striking it off: Bae. Ah. 11 Abatement," a. It was filed after appearance to the action, which is a waiver of objection to the regularity of the process. The object of the attachment is to secure the plaintiff, in case of recovery, to the extent of the property attached. The defendant may either move to quash for cause; or, 2dly, Dissolve the attachment by giving absolute bail under the 62d see. of the Act of 13th June, 1836, and 2d sec. of Act of 20th March, 1845; or, 3dly, He may cause an appearance to be entered, and take defence under the 22d sec. of the Act of 13th June, 1836, when the cause proceeds as if commenced by summons, and the attachment stands as security. No other course is afforded by the Act.
    III. For the same reasons for striking off the plea, the evidence as to domicile was inadmissible. There was no issue joined to which it was applicable; and if admitted it could not have affected the verdict. It formed no ground for dissolving the attachment after appearance and defence.
    IV. It was contended that Dr. Malone was admissible. He had made an absolute sale of his interest. It was also said that his testimony was limited to the topography of the boom and pool of the plaintiffs for logs, and the method by which the logs composing the boom were secured; also to the stage of water in the Le-high at certain seasons, and as to the condition of one of the cribs; and it was alleged that these facts were only material as matter of description, and that the latter fact was to the advantage of the defendant.
    Y. The testimony of Croskey was properly referred to the jury for their consideration.
   The opinion of the Court was delivered by

Knox, J.

Here are six specifications of error. The 1st, 2d, and 3d relate to the refusal of the Court below to quash the attachment or to permit the question of residence to be put in issue before the jury. The defendant moved the Court to quash the attachment upon the ground that when it issued he was a resident of Pennsylvania, and consequently not subject to a foreign attachment. Upon a rule to show cause, the Court heard the parties and their evidence, and refused to-quash the writ. Upon the trial, evidence was again offered to ¡orove the defendant’s residence in Pennsylvania when the writ issued, which was rejected, the counsel having previously stricken off a special plea to the same effect.

As there is no bill of exceptions to evidence on a motion for summary relief, the refusal of the District Court to quash the writ cannot be reviewed here: Miller v. Spreeher, 2 Yeates 162; Shortz v. Quigley, 1 Binney 222; Brown v. Ridgway, 10 Barr 42.

It is unnecessary to determine whether one against whom a foreign attachment has issued may not by a plea in abatement raise the question of residence, for clearly this cannot be done (after an ineffectual motion to the Court to quash the writ for the same cause) by a special plea accompanying other pleas in bar. There was neither error in striking off the plea, nor in rejecting the evidence offered to the jury.

The admission of Dr. Benjamin Malone as a witness for the plaintiffs is the 4th error assigned.

From the time of the execution of the contract out of which at least a portion of the plaintiffs’ claim originated, until after the suit was commenced, Dr. Malone was a dormant partner of the plaintiffs’ firm. After the commencement of this suit, the witness sold his interest to his brother, Watson Malone, one of the plaintiffs. Under the principle which was first enunciated in Post v. Avery, 5 W. & Ser. 609, and afterwards followed by Lieper v. Pierce, Patterson v. Reed, Phinney v. Tracey, and other kindred cases, this witness was incompetent and should have been rejected.

That the course of decision in this respect since Post v. Avery has not been entirely uniform cannot be denied, arising probably from the fact that in some of the cases the rule was extended beyond its proper limits. That one who was interested in a chose in action at the time of its origin, cannot, by assigning his interest to a mere volunteer, become a witness on behalf of the assignee as to matters which preceded the assignment, may now be considered as settled. Two cases may be found in our last volume of reports to this effect: Graves v. Griffin, 7 Harris 176; Bailey v. Krapp, Id. 192. Had these cases been reported at the trial below, they would doubtless 'have led to the exclusion of the witness.

The _ fifth and sixth exceptions are not sustained, but for the reception of the evidence of Dr. Malone, the case must be reversed.

Judgment reversed and venire de novo awarded.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    Faries’ Appeal.
    1. In a devise of real and personal property to a married woman for her sole and separate use, a provision that it shall not be liable for her husband’s debts, nor subject to curtesy or any life estate or marital rights, does not exclude the husband, on his wife’s death without will, from claiming her personal estate absolutely under the intestate laws.
    2. The law of descents cannot be set aside by any declaration of an intention to exclude the statutory order of descents, unless a different order be also provided.
    Appeal by William Faries, administrator of the estate of his deceased wife’Elizabeth, from the decree of the Orphans’ Court of Philadelphia making distribution of the estate in his hands.
    Grace Brannan, by will dated May 21,1838, had appointed Mrs. Faries her executrix and residuary devisee and legatee, leaving the property to her, “ and to her heirs, executors, administrators, and assigns, for her own sole and separate use, as fully and freely to all intents and purposes as if she were a feme sole, and so that the same shall not be liable for any contracts of her present or any future husband, or subject to curtesy or any life estate, or of any marital rights whatever of any such husband, unless she shall see proper to give him benefit or advantage therein by will or writing in the nature of a last will.”
    In May, 1840, Mrs. Faries settled her account as executrix, showing $11,410 in her hands; and it was confirmed in June. She and her husband annexed to it a note, claiming the whole amount in her right under her sister’s will, and agreeing to its confirmation. In 1850, Mrs. Faries died without issue and intestate, and her husband, William Faries, administered on her estate, and on the settlement of his account claimed all the personal estate of his late wife. Thomas Reath became administrator de bonis non of Grace Brannan, and claimed the estate for the next of kin of Grace Brannan. The Orphans’ Court decided that the husband was entitled to all except such as his wife received under the will of Grace Brannan, and which yet remained in specie, consisting principally of stock, amounting to $6597; and from this decree both parties appealed.

      Potts and Mallery, for Earies.

      O. Fallon, for the administrator of Grace Brannan.
   The opinion of the Court was delivered by

Lowrie, J.

This is nothing like a devise or bequest of a remainder or residue to the next of kin on the death of the first taker without having made an appointment, and cases of that character (3 Ves. Jr. 244; 15 Id. 537; 18 Id. 49) cannot aid us here. Setting aside all the words that are appropriate to the real estate alone, the language as to the personal property constitutes a bequest of it all to Mrs. Earies and her executors and administrators for her separate use, as if she were unmarried. All tho words beyond this are mere redundancy.

Assuming, then, that such restrictions on the title are good without a trustee, then by this bequest Mrs. Earies became the absolute owner of the property; for a gift to her and her executors and administrators is full title. The separate use clause was only intended to make this absolute title more secure, by guarding it against her husband. It can have no tendency to turn her title into a life estate with a power of appointment. And, when she died, her title passed to her administrator; and, as she died without issue, her husband is her sole distributee. The attempt to set aside the statutory order of descents, without also providing a different order, is necessarily ineffectual.

With us it makes no difference as to the distribution, whether her right was legal or equitable. Within certain limits, a testator may declare the law of descents as to property willed; but' that law ends when the absolute title takes effect, and then the general law of the land takes its place. There being in this case no creditors of Grace Brannan, the testatrix, Mrs. Earies, was entitled to the personal estate absolutely. And, as the latter left no creditors and no issue, her husband is entitled to her personal estate absolutely.

Decree. — This cause came on for hearing on appeals by William Earies, and by Thomas Reath, severally, from the decree of the Orphans’ Court of Philadelphia county, making distribution of the personal estate of Elizabeth Faries, deceased, and was argued by counsel ; and now, on consideration thereof, it is decreed that the decree of the said Orphans’ Court be reversed, and instead thereof it is now here declared and decreed that the balance in the hands of the said William Faries, as administrator of his late wife Elizabeth, belongs to him the said William absolutely in his own right, and without liability to account to any one; and that the said Thomas Heath do pay to the said William Faries his costs herein expended; and the record is remitted to the said Orphans’ Court, where this decree shall be carried into execution.


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    Manderson versus Lukens.
    1. Words of limitation, will not be deemed an executory devise'if they can be treated as a remainder, nor as a contingent remainder if they can be construed as a vested one, nor as giving a defeasible estate if they can be construed as giving an absolute one.
    2. The vested or contingent character of an estate is not to be tested by the certainty or uncertainty of obtaining the possession, for that would make its character depend, not upon the terms of its creation, but on the form of the result; nor by the defeasibility or indefeasibility of the right of possession, for many estates are vested without possession as well as with it, and are yet defeasible.
    3. If there be a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. An unpossessed estate is vested if it is certain to take effect in possession by enduring longer than the precedent estate.
    4. The word whenever and its synonymes, referring to the time when property is to be enjoyed, are among the mdst ordinary words used in creating a vested remainder, and cannot be relied on as a test of a contingent one.
    5. A devise to the testator’s widow during life or widowhood, and then providing that, whenever her death or marriage should take place, the land should be equally divided among his children which may be then alive or who may have left legitimate heirs, gives to the children a vested remainder in fee.
    Error to the District Court, Philadelphia.

    This was an action of assumpsit, in which Andrew, Thomas, and James Manderson, executors of the will of Peter Browne, deceased, were plaintiffs, and Charles Lukens was defendant. The following facts were agreed upon, and stated for the opinion of the Court.
    John C. Browne, late of the county of Philadelphia, being seised of the real estate in question, made his last will and testament, dated on the 22d day of September, 1819, and the codicils thereto dated March 2, 1825, and August 4, 1832, made a part of this case.

      He thereby devised the use, income, and profits of all his estate, real and personal, to his wife Hannah Browne, during her natural life, provided that she should so long remain his widow; but if she should marry, she should only Have what the law would allow her out of his estate.
    That upon her death, or intermarriage, he directed his estate to be equally divided between all his children, “ which may then be alive, or who may have left legitimate heirs, share and share alike,” &c.
    The said John .0- Browne died seised of said estate, leaving a wfidow, the said Hannah, and issue, three children, two of whom afterwards died without issue, leaving Peter Browne the survivor of the three children, to whom and his heirs, his mother, Hannah Browne, afterwards, viz. on the 30th day of August, 1837, by indenture of that date, sold and conveyed all her interest in said estate under the said will; afterwards the said survivor Peter Browne, by his will dated January 16, 1840, made part of this case stated, authorized his executors therein named to sell and convey all or any part of his estate; and he afterwards died seised of that estate, leaving issue one child. Under this power the executors, by indenture dated the 22d day of December, 1840, sold and convoyed to the plaintiffs all the estate or interest in a lot or piece of ground of which the said Peter Browne so died seised.
    Afterwards, viz. on the 1st day of February, 1853, the plaintiffs in writing made part of this case, agreed to sell, and the defendant agreed to buy, the whole of said lot of ground before referred to. The plaintiffs tendered to the defendant a deed for said premises, and demanded payment in accordance with the agreement; but the defendant refused to comply, alleging that the plaintiff could not convey to him a good and sufficient title in fee simple to said premises.
    If under the above facts the Court should be of the opinion that the plaintiffs had a right to sell and convey an indefeasible estate in fee simple in said premises, then judgment to be entered for the plaintiffs, damages to be settled by counsel; but if in the opinion of the Court they had not a right to sell and convey such a title, then judgment to be entered for the defendant, with the right in either party to bring a writ of error.

      Campbell, for plaintiff's in error.
    Harding, for defendant.
   The opinion of the Court was delivered by

Lowrie, J.

The plaintiffs’ right .of action depends upon the will of John C. Browne. He devised all his real estate to his wife during her life or widowhood, and “whenever her death or marriage should take pláce,” it was to be equally divided among his children “which may be then alive, or who may have left legitimate heirs.” Two of the children died intestate and without issue, and then the widow sold her interest to her only remaining son Peter, who afterwards died leaving issue, his mother being then still alive. If Peter thus acquired a full title, then the plaintiffs claiming under him have a good one; and it appears that there is no one to dispute it except the children of Peter. The defendant, having made a contract of purchase from the plaintiffs, refused to perform it, fearing that a claim by Peter’s children would be available.

Analyze the claim in question, and what have we ? A devise to the testator’s children, that is, his heirs, and impliedly to their heirs, after the death of his widow. In other words, a devise of a life estate, with remainder to his heirs at law, which is necessarily a vested remainder, or rather a reversion. .And Peter, having become the heir of the two who died, takes the whole.

It is argued that the remainder is contingent until the death of the widow. Suppose it so, if you can. Then the estate, until then vested under the will, would vest in the children themselves as an inheritance, and thus they would have both the vested and the contingent estates, that is, the whole estate, and both would descend in the same way to their heirs, which is an absolute estate.

But lest this may be doubted as a rather summary solution of the case, we shall treat it more in detail and under the guidance of other principles.

We cannot treat the expression “legitimate heirs” as meaning “issue” in the technical sense; for we are sure that the testator had no thought of creating an estate tail. Nor can we substitute the word “ children” in the English sense, which is never equivalent to “heirs,” if by so doing we should give to the first takers only a life estate, with an executory devise to their unborn children ; for nothing was further from the intention of the testator than such an artificial devise as this. Besides, the rule that no limitation will be deemed an executory devise if it can be treated as a remainder, is too peremptory and too valuable to allow this. We cannot allow the word “whenever,” referring to the time when the property is to be divided, to make the devise to children contingent ; for that word, or its synonymes, almost always appears where a vested remainder is created: 1 Dall. 175; 5 Watts 435. Moreover, the rule, that an estate will not be construed as contingent if it is at all practicable to construe it as vested, is quite as valuable and inflexible as the one just cited.

The question of vested or contingent is not to be tested by the certainty or uncertainty of obtaining the actual enjoyment; for that would make the character of the estate depend, not upon the terms of its creation, but on the form of the result. Neither does it depend upon the defeasibility or indefeasibility of the right of possession; for many estates are vested without possession, as well as with, which are yet defeasible. If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. An unpossessed estate is vested, if it is certain to take effect in possession, by enduring longer than the precedent estate. Any additional contingency destroys its vested character; but in this case there is no other.

The title having become vested immediately on the death of the testator, we cannot construe the words “who should have left legitimate heirs” so as to divest it; for the rule that, in doubtful cases, requires an estate to be construed, if possible, as absolute rather than defeasible, is quite as important as any that we have cited. Resides this, it is plain that the very object of the clause was to prevent the estate of the devisees from being defeated by their death during the precedent estate.

What then becomes of the shares of the two who died first ? The clause intending to provide for this is absurd in its literal sense, because it gives the land to them even though they should be dead. The testator did not mean this, but something that is reasonable. It is manifest that he was thinking that some of his children might die before his wife, and that, if they should have children, these children ought not to be excluded by the will, and he unnecessarily inserts a clause expressive of this thought. When the two children died without issue, their brother Peter inherited their shares, and thus, with the devise to himself, he became entitled to the whole in fee simple.

Judgment reversed, and judgment for the plaintiffs; sum due to be liquidated under the direction of' the District Court'.


text:
    Evans & Watson versus Jayne.
    The decision of the Surveyor of the City- of Philadelphia directing the removal of a party-wall is conclusive, no appeal therefrom lying to the Common Pleas; and under the Act of 5th April, 1849, tho Common Pleas may cause the wall to he forthwith removed.
    Certiorari to the Common Pleas, Philadelphia.

    This was a certiorari issued out of the Supreme Court to the Court of Common Pleas in the case of David Evans and Johannes Watson v. David Jayne, in the matter of the condemnation of the party-wall between certain premises fronting upon Dock street, in the city of Philadelphia.

      David Jayne, being about to erect a large building upon Dock street, adjoining the premises of Evans & Watson, became desirous of removing the party-wall in question; and in order to accomplish it called upon the city surveyor, to examine the wall and report as to its sufficiency for his purposes.
    The surveyor informed Evans & Watson of his intention to hold a survey of the wall; and upon the 29th day of July, 1858, notified them that he had condemned the same, and directed them to remove it within thirty days. The latter entered an appeal to the Court of Common Pleas. After the entering of the appeal and while the same remained in Court undetermined, Jayne, by his attorney, obtained from one of the associate judges of the Common Pleas, a rule to show cause why a writ should not issue out of the Common Pleas, directed to the sheriff, commanding him forthwith to remove the party-wall. The rule was returnable on the next day.
    Upon the hearing of the rule, the counsel for Evans & Watson contended that an appeal lay; and further offered to prove that the wall was a good and sufficient party-wall: but the judge decided that the report of the surveyor was conclusive, and he refused to hear any testimony as to the sufficiency of the wall. The writ of certiorari was then obtained, and it was filed- in the Common Pleas; but afterwards, on application to the judge of the Common Pleas, he ordered the writ for the removal of the wall to issue.
    By the Act of 5th April, 1849, it is provided that in every ease where a party-wall or walls shall be and may heretofore have been condemned, &c., it shall be the duty of the owner or occupant of the premises whereon said party-wall,is situate, within thirty days after notice of condemnation given, to cause the same to be removed, but at the proper charge of the person or persons upon whose application the party-wall may have been condemned; and upon his or her failure to remove the same within said time, and upon the representation thereof, upon oath or affirmation, to the Court of Common Pleas for the city and county of Philadelphia, the Court shall grant a rule to show cause why a writ shall not be directed to the sheriff commanding him, at the proper charge of the applicant, forthwith to remove the wall, &e.; and if upon the return of the rule no sufficient cause be shown to the contrary, it shall be the duty of the Court forthwith to direct the writ to issue.
    It was assigned for error: 1. That the Court erred in deciding that the report of the surveyor was conclusive, and that no appeal would lie from it. 2. In refusing to hear any testimony upon the hearing of the rule. 8. In making the rule absolute; and 4. In directing the writ to issue after the writ of certiorari was brought to the prothonotary’s office.

      Alsop and Perlcins, for plaintiffs in error.
    It was said that under the Act of 24th February, 1721, and of 15th April, 1782, an appeal to the Common Pleas was authorized. By the 7th section of the Act of 21st June, 1839, proceedings as to party-walls are subject to the provisions of the Act of 1721 and its supplements. It was alleged that express words were necessary to take away an appeal: 3 D. & R. 306.
    But if an appeal did not lie, it was alleged that it was illegal in the Court below to cause any process to issue after the writ of certiorari had been issued, as in contemplation of law the record was removed thereby: 5 Barr 125; 3 Whar. 588; 2 Ser. & R. 363; 3 Yeates 479. Where a statute provides that “a matter shall be finally determined by the Quarter Sessions, and that no other Court shall intermeddle,” certiorari lies notwithstanding these negative words: 2 Burr. 1042; 3 Bl. Com. 42.

      S. Lewis and Gerhard, contrá.
   The opinion of the Court was delivered by

Lowrie, J.

There can be no available objection to the principle upon which our law as to party-walls is based. The law as to partition fences involves the same principle. It exists partially in London: St. 14 Geo. 3, c. 78. It has constituted part of the law of France for ages, and is fully carried out in the Code Napoleon, ss. 653-673. In that law (s. 659) we find the very provision on which this case proceeds, that the builder of a new house may take down a party-wall that is insufficient for his purposes, and rebuild it at his own expense; and this expense is the best protection against an abuse of the right, the exercise of which cannot be of frequent occurrence. See also Pothier’s Traité de Société, app. du Voisinage, s. 247, &c.; Pothier’s Coutumes, Des Servitudes, art. 235, &c., Voet ad Pand. 8, 2, 15-17; Pothier ad Band. L. 10, s. 67.

The principle is no invasion of the absolute right of property, for that absolute involves a relative, in that it implies the right of each adjoiner, as against the other, to insist on a separation by a boundary more substantial than a mathematical line. This imaginary line is common, and so ought the real one to be, and it is only in the character of this, that the difficulty lies which requires legislation. When it is constructed, the regulation of its enjoyment and repair is as plain as that belonging to any other property held in common. And there is nothing more severe in submitting the question of the sufficiency of walls in a city to the city surveyor, than there is in submitting the sufficiency of fences in the country to fence viewers. The principle is the same, and if the interests involved in the one case are greater than in the other, it is only because of the nature of city property, that it requires more expensive partition walls or fences than are required in the country. The provisions of the law are substantially the same in both cases.

Taking these suggestions in connexion with the facts that the wall in question was a party-wall, built half on each side of the line of the lots, and that the Acts of Assembly of 1839 and 1849 apply only to such walls, we can see in those acts no such invasion of private rights as requires us to regard their provisions with suspicion. This proceeding was under the act of 5th April, 1849, P. L. 411, and the process there provided is complete in itself without any appeal, and we cannot imply that any was intended; and herein too it resembles the fence laws.

Proceedings affirmed.


author: Knox, J.

text:
    Nolen’s Appeal.
    A husband converted to Ms own use money belonging to Ms wife which had been deposited in bank with the view to its being for her separate use: Held, that the wife was not entitled as a creditor to a dividend of his estate to the prejudice of his creditors. Ilis expressions of regret at having used the money did not alter the case.
    Appeal from the decree of the Orphans’ Court, Philadelfhia.

    This was an appeal by Nancy Nolen, from a decree of distribution of the balance of her account, as administratrix of the estate of Spencer Nolen, her late husband.
    An auditor had been appointed to report distribution, and a claim of the accountant herself for $1610 was submitted to the auditor. Her claim arose as follows:—
    In 1839, the father of the appellant, living in Boston, died, having devised his real estate to his wife for life, and, upon her decease, to his nine children, as tenants in common. In 1847, the widow died, and the real estate being sold, Mrs. Nolen’s share of it amounted to $1617.68. A draft for that amount upon the Commercial Bank, Philadelphia, was drawn, payable to the order of Spencer Nolen, the husband, and it was testified that the letter containing the draft was addressed to her. The letter was received on 18th January, 1847. Nolen told his wife the money was hers. It was stated that he endorsed the draft, and that Mrs. Nolen handed it to her son to draw the money. He drew the amount and handed it to her. Her son testified that she requested him to put the money, except a small part of it, into the Farmers’ and Mechanics’ Bank for her, for safe keeping; and that he deposited it. He further said it was the understanding of his father that the money was to be kept for the separate use of his mother.

      It appeared that the husband used the money, and afterwards said it was her money, and expressed regret that he had used it. It did not appear that he had given to his wife any note or other written engagement for its payment. The claim of the wife was opposed by creditors of the husband.
    The auditor disallowed the wife’s claim, and his report was confirmed.
    The opinion of Thompson, J., was, inter alia, as follows:— “ The possession and use by a husband of his wife’s money is very strong evidence of the conversion of it to his own use, and with the intent that her right to it shall be divested. This presumption arises in every case where the wife’s chose in action is reduced into the possession of the husband; but it may be repelled by sufficient proof of a different intention. It may be shown even by parol proof, that the husband has the use of his wife’s money for a limited or special purpose and with the intent to hold it in trust for her: Hinds’ Estate, 5 Wh. 142. The evidence of the intent so to hold the wife’s property, must be clear and unquestionable. Subsequent admissions of the fact are entitled to but little weight; 'and the evidence of such admissions, to have any effect, must be clear, positive, and consistent: Gray’s Estate, 1 Barr, 329. * * *
    “ There certainly was no loan made to him (the husband) which he promised to repay, and the fact that he used the money several years prior to his death, without any question in regard to it by his wife, seems rather to indicate that it was taken into his possession with the hope of being able at some future time to return it, than any clear intent not to use it as his own. It is probable that when the money was received, the intestate had no intention of making use of it, but having it in his power he did apply it to his own use, and by so doing we think divested the right of his wife; and though Courts are always disposed to favor the claims of a wife to her choses in action, they cannot do so at the expense of creditors, unless her rights are more clearly established than they are in the present case. The report of the auditor is therefore confirmed.”
    Exception was taken on the part of the wife, to the decree against her claim.

      Quyler, for the appellant.
    It was contended that the wife should be considered as a creditor, and allowed a dividend of the estate. A disclaimer by a husband of conversion to his own use may be established by the husband’s admissions. His reduction of her property into his possession is but evidence of his exercise of ownership. To defeat his wife’s right of survivorship, he must do some act, in reference to her chose in action, which is of a possessory character, and with the design of asserting his right of possession: 1 Barr 328; 2 Id. 71.

      The money was the proceeds of real estate, over which, if the property had been sold by order of Orphans’ Court, the husband could not, by the law of Pennsylvania, have exercised eontrol without a separate acknowledgment by the wife.

      Q-. M. Wharton and McIntyre, for appellees.
    It was said that whether the draft arose from real or personal estate was not material. The husband did not borrow the money. He had a right to use it: 2 Barr 73; 10 Barr 376.
   The opinion of the Court was delivered by

Knox, J.

In 1847, Mrs. Nolen received from the estate of her father the sum of $1617.68, which she gave to her husband to deposit in bank for her use. He deposited it in the bank to his own eredit, and used it.

Upon the death of the husband, his estate proved to be insolvent, and his widow claims to be a creditor to the extent of the money received by him from her, as above stated.

In converting the money to his own use, the husband was in the exercise of a legal right, which cannot now be questioned at the expense of his creditors. His subsequent expressions of regret at having used the money, makes him neither the debtor nor trustee -of his wife.

The opinion of Judge Thompson contains a correct exposition of the law of the case; and for the reason given therein,

The decree is affirmed. •


text:
    Hart versus Homiller’s Executor.
    1. Where land is devised at a valuation or a price to be paid by the devisee, the title passes subject to the charge or lien for the price, if the devise be accepted.
    2. Where the devisee’s title to the land is sold at sheriff’s sale, and in all the proceedings the title is described as taken and sold subject to the unpaid valuation charged upon it, the sheriff’s vendee takes the land so charged.
    3. If after this there should be funds in the hands of the executors of the said testator, and the said devisee’s share thereof should be sufficient to pay the charge on the land thus devised, this would not of itself operate as an extinguishment of the charge, for that would be the application of the devisee’s funds in order to discharge the duty of the sheriff’s vendee.
    4. When afterwards the title of the sheriff’s vendee is sold at sheriff’s sale subject to the same charge, the second vendee takes the title thus burdened.
    5. A petition of the executor of the will by which the charge was made having been presented to the Orphans' Court, in pursuance of the 59th section of the Act of 24th February, 1834, relating to executors and administrators, this Court decreed that the said second purchaser pay to the said executor the valuation money, with interest and costs, within a time designated ; and in default thereof, the payment to be enforced by a writ of levari facias against the land charged.

      Certiorari to the Orphans’ Court for the city and county of Philadelphia.

    On the petition of Jacob Martin, as surviving executor of the will of Henry Homiller, deceased, to the Orphans’ Court, on the 18th February, 1853, a citation was issued to James H. Hart, to show cause why a decree should not be made against him “ for the valuation money and the interest due thereon,” alleged to be charged on a lot of ground having buildings erected thereon, situate on the east side of Delaware Third street, in the Northern liberties. The said Hart had purchased the premises at sheriff’s sale, when sold as the property of Jacob Martin, who had purchased them at sheriff’s sale under a judgment against Samuel Homiller, to whom certain buildings had been devised by his father, Henry Homiller, during the life or widowhood of the testator’s wife, he (Samuel) paying therefor unto her the yearly rent of fifty dollars; and after the decease or intermarriage of his said wife, the lot on which the buildings were erected was to be divided, and the premises in question, now claimed by Hart, the said testator gave and devised to his said son Samuel, his heirs and assigns, “ at such valuation as shall be made thereof by six respectable bricklayers and carpenters.”
    When the premises in question were sold at sheriff’s sale as the property of Samuel Homiller, they were sold subject to the valuation to be made as aforesaid. The premises were purchased by Martin in 1827, before the death of the widow. Samuel died in or about 1835. The widow died in 1844. After her death, the premises were valued, in August, 1845, at $2250. After the valuation, the right, title, and interest of Jacob Martin in the premises was sold at sheriff’s sale, in April, 1847, and were purchased by the said James H. Hart.
    In the sheriff’s advertisement it was stated that the sale would be subject to a yearly rent, &e., and also “subject to a valuation to be made of said building and lot after the decease or marriage of the said Catharine Homiller, agreeably to the last will and testament, &c., of Henry Homiller deceased.” Previous to the sale notice was given that the sale would be subject to the valuation made under the direction of the will, viz. $2250; and also to the approval of the devisees and legatees claiming by virtue of the will. In the sheriff’s deed to Hart, dated 10th April, 1847, the sale was stated to have been subject to a valuation to be made as aforesaid.
    See the facts of the case more fully stated in a report of the case in 8 Harris 248.
    The petition in question was under the provisions of the 59th section of the Act of 24th February, 1834, relating to executors and administrators.
    In the answer it was alleged that, at the time of the valuation in August, 1845, the said Jacob Martin was the surviving executor of the will of Henry Homiller; that he was the sheriff’s vendee of the said premises devised to Samuel Homiller, and, as vendee, was subject to the duty of paying the valuation. Further, that at the time of the valuation the said Martin was indebted to Hart and others, by judgment, under which the premises were sold; and it was alleged that they passed to Hart discharged of the lien of the valuation. Also that a mortgage existed on the premises given by Martin, in December, 1838, for $1600. It was further alleged that Hart “did not bargain, bid, or in any wise agree” with the sheriff to pay to Homiller’s estate, to Samuel, or to the sheriff the said valuation or any other sum than his bid of $60; and that he bid believing the absolute fee was in Samuel.
    It was further alleged that the accounts of Martin, as executor, ought to be settled, and the amount of Samuel’s share in the estate ascertained; and that the gift of the lot to Samuel operated as payment of his share of the residue of the testator’s estate, &c.
    The respondent asked that a decree be made in his favor.
    By the will of Henry Homiller, the rest, residue, and remainder of his estate, real and personal, not disposed of by the will, after the death or marriage of his widow, was devised to his six children, of whom Samuel was one, in proportions stated in the will.
    The proceeding had in this case was taken in consequence of the suggestion in the opinion of Lowrie, J. See 8 Harris, 252.
    Allison, J., remarked that in the opinion delivered by Lowrie; J., it was held that the valuation was a lien upon the land bought by Hart; that he bought subject to it, and that the fund belonged to the residuary estate, and must be paid to the executors or administrators. He decreed the payment by Hart of the valuation of $2250, with interest, to the executor.
    It was assigned for error, that the Court erred in granting the prayer of the petitioner, and in not decreeing the account asked for in the answer. It was alleged that the executor was not the proper party to institute this proceeding; and it was objected that the personal representatives of Samuel Homiller were not parties defendant or notified.

      Horn and Kennedy, for plaintiff in error.
    It was contended that the devise “at such a valuation as shall be made,” &c., did not create a testamentary charge upon the premises. It was said that to create a testamentary charge upon land, the testator must express his intention to that effect in direct terms, or by plain implication: 8 Watts 198; 4 W. Ser. 414-423; 7 Barr 241; 3 W. & Ser. 370; 1 Jones 86, Hackadorn’s Appeal; 3 Barr 72.
    2. It was contended that if the valuation money was a charge upon the land, the judicial sale to Hart divested it: 6 Watts 167; 4 Rawle 440; 1 Penn. Rep. 112; 9 Barr 132; 1 W. & Ser. 235.
    The valuation had been made before the sale to ITart. Jacob Martin having before been the owner by virtue of the sale to him, and he being the person to receive and pay out the valuation money, it was said that it should be treated as paid.
    It was further alleged that the Court below should have decreed a settlement of the account of Martin, as executor, and the account of Samuel with the estate of Homiller, to show how far the valuation was discharged either by debiting Samuel in the residuary fund or the executor with the amount of the valuation. That Samuel was entitled to retain his share of it as a residuary legatee, and would not be liable for more than the balance.
    The proceeding was instituted under the 59th section of the Act of 24th February, 1834, and it was contended that the legatees and not the executors, were the proper persons to institute it.
    The representatives of Samuel Somiller should have been joined as defendants or notified. Reference was made to the 59th section of the said Act.

      Wilkinson and Arundel, contó.
   The opinion of the Court was delivered by

Lowrie, J.

When this cause was up here before in another form, we were compelled to reverse the proceedings for formal reasons, while we were deciding all the material points in favor of the claimants. We have now, therefore, little more to do than to repeat the propositions then affirmed.

1. Where land is devised “at a valuation” or a price to be paid by the devisee, the title passes subject to the charge or lien for the price, if the devise be accepted.

This proposition is so plainly a mere repetition and application of the principle of all transfers of title, that it is hard to see how a different view could be thought of, except where the search after analogous precedents has diverted the mind from the direct principle of the case.

2. Where the devisee’s title to the same land is sold by the sheriff, and in all the proceedings the title is described as taken and sold subject to the unpaid valuation charged upon it, the sheriff’s vendee takes the land so charged.

3. If, after this, there should be funds in the hands of the executors of the estate, and the said devisee’s share thereof should be sufficient to pay the charge on the land thus devised, this would not of itself operate as an extinguishment of the charge: for that would be the application of the devisee’s funds in order to discharge the duty of the sheriff’s vendee.

4. It is of the plainest logical consequence that, when afterwards the title of the sheriff’s vendee was taken and sold subject to the same charge, the second vendee of the sheriff takes the title thus burdened.

Possibly a different result might be arrived at by a process of induction from analogous cases alone; but such process can never be relied on, except when it is conducted under the constant supervision of the fundamental principles of law. We know of no precedent that, under such supervision, could favor the defendant’s case. He bought this property for little more than a nominal price, and subject to this charge, and he cannot find law that will enable him to evade this liability.

These principles would affirm this decree if it were not so loose in form as scarcely to deserve to be called a decree. We cannot even say that it is a decree in rem, when clearly it ought to be. We must therefore reform it, and declare how it should be executed. How shall this be?

The decree must be that the defendant pay the charge with interest, and that in default thereof the land be sold for the payment thereof. How sold ? Levari facias is made by law the ordinary writ for collecting charges upon land, as in the cases of mortgages, mechanics’ liens, and municipal charges. It is the proper process in equity (see 8th Equity rule), and this is really an equity case in the Orphans’ Court. Similar common law forms of execution are recognised in that Court, by the Supplementary Act of Assembly relating to executions — 21st April, 1846. It is a well known form of writ, which even inexperienced clerks can issue without blundering; it requires no special order of the Court to obtain it, and it therefore accords best with the decree, for that gives the plaintiff a right to his money. Ubi est eadem ratio, ibi debet esse idem jus.

Decree. — March 20, 1854. This cause came on to be heard at the last December Term of this Court, on appeal from the Orphans’ Court of Philadelphia county, and was argued by counsel; and now, on full consideration thereof, it is ordered, adjudged, and decreed that the decree of the said Orphans’ Court be reversed, annulled, and held for nought, and this Court now proceeding to make such decree in the premises as the said Orphans’ Court ought to have made, do further order, adjudge, and decree that the said defendant, James H. Hart, do pay unto the said plaintiff, Jacob Martin, executor of Henry Homiller deceased, the sum of ($3398.40) three thousand three hundred and ninety-eight dollars and forty cents, with costs, and in case the same shall not be paid within one month after the entry of this decree in the said Orphans’ Court, that then the payment thereof shall be enforced by a writ of levari facias against the land of the said defendant, which is described in the bill or petition of the plaintiff, and the cause is remanded to the said Orphans’ Court in order that this decree may be there carried into effect.


text:
    Worrell’s Appeal.
    1. Au investment by a guardian or other trustee, unless authorized by the deed of trust or by law, in the stock of an incorporated company, is at his own risk, even though persons generally considered men of prudence have made similar investments.
    2. Though a guardian who made an unauthorized investment in stock may be relieved by the adoption of his act by the party interested if competent to act in the matter, yet a guardian who had invested in the stock of the Schuylkill Navigation Company, which subsequently depreciated, and in other canal and bank stock, was not relieved from responsibility by the mere enumeration or recital of such stocks in a deed of settlement made, in contemplation of the marriage of the minor ward, by the intended husband and the ward to a trustee for the use of the ward, it not appearing that the trustee then knew when or by whom the stocks were purchased, and no account of the guardian being then filed, and which, when filed, was immediately excepted to.
    3. The guardian is not entitled to be allowed fees paid by him to counsel employed in sustaining his claim to allowance for such depreciated stock.
    4. The commissions of the guardian upon the sums received should be deducted at the time the money is received by him, and .interest is chargeable only on the residue.
    5. Ordinarily, six months is allowed to make investments.
    6. A guardian is chargeable with interest on the balance due by him during the proceeding on his account under exceptions filed at his instance.
    Appeal from the decree of the Orphans’ Court, Philadelphia.

    This was an appeal by John R. Worrell, guardian of Mary E. Dayton, formerly Mary E. Jennings, from the decree upon his account. The main question .was whether he was liable for investment in stock of the Schuylkill Navigation Company.
    See the report, in 9 Barr 508, &c., in the case of a former appeal of the same appellant.
    John Jennings, of Philadelphia, died in 1832, leaving five children. At the instance of the widow, who was one of the executors of the will of the decedent, John R. Worrell accepted the guardianship of the five minor children. He was appointed in December, 1832.
    Mary Dayton, one of the children, came of age on 29th August, 1847. On 10th September, 1847, John R. Worrell’s account was filed. On 11th September, 1847, exceptions to it by the former trustee of Mrs. Dayton, were filed. The accounts were afterwards referred to an auditor.
    • The guardian, in addition to investing in stock of the Delaware and Hudson Canal Co., and in the stock of certain banks in Pittsburgh, also purchased stock in the Schuylkill Navigation Company. The first purchase of the latter stock was made in 1884, and was purchased at a price considerably above par. He also purchased some of the said stock on his own account, and the widow also purchased some. When the elder children came of' age, thgy received their portion of the said stock, and it was sold at a profit. It was alleged that the other stocks purchased by the guardian would bring more than was paid for them by the guardian. It was stated that the guardian settled with the other children, without any charge for his services. It was also alleged that the Board of Brokers invested in the Schuylkill Navigation Company’s stock, about the same time, in order to form a fund for the relief of the indigent widows and children of deceased brokers. Previous to 25th September, 1845, the elder children of John Jennings had received their shares of the stock, and the remaining stocks belonged to John R. Jennings and to Mary, afterwards Mary Dayton. On that day, a deed or ante-nuptial settlement was executed by B. B. Dayton, of the first part, Mary F. Jennings, of the second part, and Joseph T. Thomas, of the other part, in which was recited the intended marriage of the two first parties, and there was conveyed to the third party, in trust for the said Mary and her children, the one undivided half part, being her share of certain stocks then in the name of John R. Worrell as guardian, including in the enumeration about 91 shares of stock in the Schuylkill Navigation Company. The trustee accepted the trust. Subsequent to the marriage, the Schuylkill Navigation Company made no dividends.
    In addition to exception being taken to the investments in the stock of the Schuylkill Navigation Company, exception was also taken to credits asked for investments to the extent of ten shares of the stock and scrip of the Delaware and Hudson Canal Company ; sixty-eight shares of the stock of the Merchants’ and Manufacturers’ Bank of Pittsburgh, on the ground that the same was unauthorized by any order or decree of the Court.
    The auditor reported in favor of the exceptant. He expressed .the opinion, that, being a minor at the execution of the deed of trust, the ward was not bound by any admissions contained in it. He cited Cumming’s Appeal, American Law Journal of September, 1849; and observed that the guardian was not a party to the deed, and no consideration passed to her for her alleged acquiescence ; and that it did not appear that the conduct of the guardian was influenced by the deed.
    As to compensation to counsel, it was observed that there was no evidence of any professional services rendered to the accountant on behalf of his ward, but that those services appeared to have been adverse to her interests and for the protection of the accountant. The auditor reported in favor of the exceptant, the guardian to retain the stocks and dividends thereon, and charging him with the principal moneys and interest thereon, allowing one month after the receipt of each item for investment. 'A commission of five per cent, on all principal sums collected was allowed.
    Exceptions to the report were dismissed in the Orphans’ Court, and the report was confirmed, and the balance and interest thereon, stated in all at $9097.08, was directed to be paid to the trustee.
    Exceptions to the decree were, — 1. In not allowing the investments in the stock of the Schuylkill Navigation Company, the Merchants’ and Manufacturers’ Bank of Pittsburgh, and in the Delaware and Hudson Canal Company. 3. Because the Court decided that the execution of the ante-nuptial settlement was not a ratification of the purchases of the said stock. 4. Because the Court decided that the trustee was not bound on accepting the trust immediately to disavow the said investments. 6. Because the Court allowed the accountant a commission only on $6629.46, instead of on the amount exceeding $9000, with which he is charged. 7. The commissions should have been deducted when the moneys were received, and not on 1st March, 1850. 9. Because the ward was allowed an excessive rate of interest. 10. Because but one month from the receipt of each sum, was allowed for making investments. 11. To the disallowance of any compensation to counsel.
    Randall, for the appellant.
    In England, until the year 1746, the rule was that a trustee was not liable for investments made in good faith and with the same judgment that prudent persons exercised in similar cases. At that period, from motives of state policy, the Chancellor made an important change, and required every trustee to apply to the Court of Chancery for an order for the investment of the fund in government securities: 7 Ves. J. 150; and the authorities in 9 Barr 509—10; 8 W. & Ser. 143. But it was contended that the old rule prevailed in the American Courts: 9 Pick. 446; 20 Pick. 119; 4 John. Ch. 519 ; Story’s Eq. § 465; Id. 1269-1271-2-3; 1 Penn. Rep. 207; 6 Watts 188; 8 Id. 19-21; 7 W. & Ser. 48; 8 Id. 143; 5 Barr 15; 5 W. & Ser. 254; 1 Harris 222, Duhring’s Appeal; 2 Jones 375, Rush’s Estate, wherein an investment in the loan of the Lehigh Coal and Navigation Company was sustained.
    It was further contended that the execution of the marriage settlement, dated Sept. 25, 1845, by which the stocks in question were transferred, was a confirmation and ratification of such investments, even though the ward was an infant. That as the ward was of sufficient age to contract marriage, she was competent to execute a settlement: Atherly on Mar. Set. 24-25. The trustee was liable for instalments on the stock: 3 Whar. 198; 6 Barr
      421. The trustee did not disavow the transfer'of the stocks till 11th Sept. 1847, nearly two years afterwards. The trustee and parties permitted the guardian to retain the investment for nearly two years, during which the stock was falling in price. It was contended that the investment should have been promptly disavowed: 14 Ser. & R. 27; 8 Eng. C. L. 80; 1 Barn. & Cr. 186; 2 Bults. 69; 1 Greenleaf 11; 15 Mass. 220; 1 Pick. 23; 2 Southard 460.
    It was further contended that the marriage of the ward terminated the guardianship, and that from that time the authority of the guardian was vested in the trustee, or her husband: 1 Jones 272, Cumming’s Appeal. It was said that an infant, by agreement or settlement before marriage, may bind her personal estate, because otherwise at law it would become the property of the husband ; that, he being a party to it, it is in equity binding on him: Atherly 24-5, 27 Law Lib. 13; 67 Law Lib. 29 Batten on Spe. Per.; 5 Bevan 56; 3 Hen. & Mun. 422; 2 Leigh 276; 2 Har. Gill 34; 4 Dallas 305; 4 Barr 99. But if it did not bind the wife, it was said that no one could object to it during the husband’s lifetime, except a purchaser without notice: 27 Law Lib. 22.
    As to the commission, it was contended that the accountant was entitled to a commission on what he was charged with. The auditor charged him with above $17,000, and allowed a commission on above $6000. The commissions are allowed at the conclusion of the account, whereas they should have been allowed as the amounts from time to time were received: 1 Ser. & R. 241.
    8. The Court charged $398.11 for interest whilst the exceptions were pending. It was said that this was irregular: 8 Watts 78; 5 Barr 87; 9 Id. 509.
    It was testified that 6 per cent, could not have been obtained during all the time in question; yet it was charged. 10. The guardian should have been allowed six months to invest: 5 Barr 91.
    XI. Counsel fees should have been allowed. It was in evidence that counsel had been employed as early as the application for the appointment of a guardian, and the accountant has since been obliged to employ counsel in relation to this proceeding: Oakford’s Appeal, 1 Whar. Dig. 850.

      Ingraham and Thomas, for appellees.
    It was contended, in relation to the investments, that the question was not whether the guardian acted in good faith, or according to the best of his judgment, but that the object of the law was a secure investment, and that this could be attained only by investment in real security or in the public loans. It was alleged that this has long been the rule in England: 1 P. Wms. 140, decided in 1711; Id. 648, in 1720; 2 Id. 85-168; 1 Atk. 480; 3 Id. 440; Lewin, 74 Law

      Lib. 156, 7 Ves. 150 ; 1 Cox 67; Willis on Trustees, 10 Law Lib. 86; opinion in 6 Harris 305, Hemphill’s Appeal. The investment should be in the public debts of the United States, or of Pennsylvania, or the city of Philadelphia, or in real security, as provided by Acts of Assembly.
    As to the marriage settlement. A person when of full age may waive acts done during his minority: 2 Bl. Com. 292; Co. Litt. 171 c; 172 a; 51 b; 52 a; 3 Burr. 1806. A trustee cannot by his acceptance bind his cestui que trust to the injury of the latter: Willis on Trustees 168; Id. 122. 4. In Lukens’s Appeal, 7 W. & Ser. 48, a guardian was held liable after settlement with the ward, and after lapse of six years: Lewin on Trusts 643. The husband here legally has no interest. 5. The recital in the marriage settlement is not a confirmation, but a description. The investments being illegal are not confirmed by it: 2 D. & R. 716; 2 Harr. Dig. 5426. 6. The opinion was expressed that the Court allowed commissions on all sums received by the guardian. 7. The accountant did not charge commissions from time to time. 8. The guardian was chargeable with interest during the litigation, as the money was in use; and if it were not, and the litigation were delayed, he should have asked the Court for leave to invest it. By Act of 29th March, 1832, sect. 17, an executor or administrator is liable for interest for the balance in his hands when his accounts are or ought to be settled, or where he has made use of the funds : also cited 1 Bin. 194; 2 W. & Ser. 557-565. As to the case of Hoopes v. Brinton, 8 Watts 73, that executors are not liable for interest on funds in their hands during the pendency of their account in the Orphans’ Court, on exceptions not by themselves, it was said that that case is to be understood as applicable only where the money was ready for distribution, and not in use by the accountant, or the distribution delayed by his unsuccessful exceptions. 11. It was said that counsel were never employed by the guardian except to sustain the investments: cited Hiester’s Appeal, 7 Barr 455.
    March 20, 1854,
   The opinion of the Court was delivered, by

Knox, J.

In Worrell’s Appeal, 9 Barr 508, it was held that this appellant was liable for an investment in the stock of the Schuylkill Navigation Company of moneys received by him for his ward. The decision was in accordance with former adjudicated cases, and has been followed by others of,, like import. It may now be considered as settled law, that in Pennsylvania an investment by a guardian or other trustee, unless authorized by the deed of trust, in the stock of an incorporated company, whether a bank, railroad, canal, manufacturing, or mining corporation, cannot be made at the risk of a ward or other cestui que trust. It is unnecessary to repeat the reasons which are the foundation of this rule. In England and in this country the adoption of the rule has been found essentially necessary for the protection of those who could not protect themselves. It will not do to say that because prudent men sometimes invest their own money in such stocks, guardians may legally invest the estate of their wards in like manner.

One who is entitled to the appellation of a prudent man, incited by the hope of a large return, may make an investment understood to be of a speculative or experimental character. He calculates the chances and takes the risk. If fortunate he pockets the profits; if not he must stand the loss. But with trust funds no such hazard can be permitted. Investments which are entirely safe, and which yield a fair return, in this country can readily be obtained, and a strict compliance in this respect should be required from those intrusted with the estates of minors and others similarly situated. Neither Duhring’s Appeal, 1 Harris 222, nor Rush’s Estate, 2 Jones 375, bear upon the question here presented. In the one the effort was to make trustees of an insolvent liable for not proceeding-to avoid certain assignments; and in the other the investment was held to be within the terms of the will; and the language used as to what is required of trustees, is applicable to the facts then under consideration.

It is alleged that the recognition contained in the ante-nuptial settlement affirms the purchase of the stocks in question, and protects the trustee from liability. The reasons given by the auditor in negativing the proposition are unanswerable. At the time the deed of marriage settlement was executed, the ward was in her minority, and was not of full age for nearly two years thereafter. There is no evidence that the trustee under the deed, when he became a party to it was informed how, when, or by whom the stocks were purchased, or that such information was given to him at any time before the appellant’s account was filed, and which was immediately excepted to.

It is possible that the election of the trustee under the settlement to take the stocks with the consent of the husband, would have bound the ward; but it is clear that a mere recital in the deed cannot be construed into an election. Where a guardian makes an unauthorized purchase, an adoption of his act would relieve him from responsibility; but the adoption must be by one competent to act, and made under a full knowledge of all the facts connected with the transaction.

What has been said as to the effect of the trustee’s conduct, may be applied, if possible, with still greater force to the husband’s. By becoming a party to the deed, he is prevented from disputing the title of the trustee; but how his act can be said to work a release of the guardian, is not, and, it is believed, cannot be shown. The same answer may be given to the allegation of acquiescence; which, like election, is not valid in the absence of notice. It was the duty of the guardian upon the marriage of the ward to render an account, the objection to which could not be made before it was rendered. It was made as soon as the account was filed, and there is no room left for complaint, upon behalf of the guardian, that he was not earlier notified that the stocks would not be received.

We have disposed of the main questions raised upon this appeal. There are, however, some minor points to be noticed.

The auditor was right in disallowing the charge for counsel fees, which appear to have been incurred in contesting the demand of the appellees, and must be paid by the contestant.

Commissions were calculated upon the sums received, excluding the interest, and this was correct; but such commissions should have been deducted at the time of the reception, and interest only chargeable upon the residue. There is still another error in making up the account. Only one month was allowed from the time of the reception of the money, to reinvest. Ve have, in several recent cases, held that ordinarily six months should be allowed for this purpose; and there is nothing in the case before us to take it out of the general rule. It only remains to add that the accountant is to be charged with interest during the pendency of the account.

The decree of the Court below is reversed, and the account is referred to the auditor of this Court to report an account in accordance with the principles herein stated, when a final decree will be entered in this Court.


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    Howard Fire Insurance Company versus Bruner.
    1. Though it was provided in a policy of fire insurance that the conditions annexed were “to be used and resorted to to explain the rights and obligations of the parties” in cases not specially provided for; yet in an action by the assured on such a policy it was Held that the assured might show tho knowledge of the agents of the insurance company of the character of the property; that the description was as prepared by such agent; and'that the omissions in the policy complained of by the Company were made by him because he considered them immaterial; therefore the validity of the policy did not depend on the completeness of the written description.
    2. One of the questions propounded to the applicant for insurance on a woollen factory was what kind of lamps are used and are they all covered: if any open lights are used state in what rooms: Held, that this question referred to the lamps which were habitually used and not to the hand-lamp used to light up with.
    3. One of the inquiries made was whether the property proposed for insurance was mortgaged; and if so, the amount. In the reply the encumbrances by ground-rent and mortgage were stated. Afterwards another mortgage was executed .and an existing policy was assigned as collateral security for it: Ileld, that tho execution of the second mortgage, -without notice to tho Company, did not avoid the policy.

      This case came up from the Nisi Prius, PMladvlphia.

    It was an action by James P. Bruner, to the use of Paul Thur-lo, v. The Howard Fire Insurance Company. The narr. was in asmmpsit. The action was on a policy of insurance, executed' by the defendant on a stone building used as a woollen and cotton mill, and on the machinery contained therein. The insurance was to the amount of $6000, viz., $3000 on the building and on fixed machinery; and $3000 on movable machinery therein; and was for one year from 17th July, 1851. The mill and machinery were injured by fire on the 12th November, 1851.
    The company was an incorporated company in the state of Massachusetts, having their office at Lowell. H. Coggshall and A. S. Gillette were their agents at Philadelphia for taking risks and obtaining insurances. The application of Bruner was made to the office of the agents in Philadelphia/and the answers to the questions propounded were signed by him there on the 17th July, 1851. The application was forwarded to the company, as alleged on the part of the company for its approval; the policy purported to have been signed at Lowell; and it was stated to have been countersigned on the 25th of the same month by Gillette and Coggshall, at Philadelphia, and afterwards delivered to Bruner.
    In the policy, reference was made to the survey and description No. 3931, on which the policy was based. It was also declared in the policy that it was “made and accepted in reference to the conditions thereto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties in all cases not otherwise provided for.”
    Among the conditions annexed to the policy and referred to as above, are the following: — •
    “ If, after insurance is effected on any building or goods in this office, the risk shall be increased by any means within the control of the assured, or if such building or premises shall, with the assent of the assured, be occupied in any way so as to render the risk more hazardous than at, the time of insuring, such insurance shall be void and of no effect.”
    “A false description by the assured of a building insured, or of its contents; or in a valued policy an over valuation, shall render absolutely void the policy issuing upon such description or valuation; but the office will be responsible for the accuracy of surveys and valuations made by its agents.”
    “When a policy is made and issued upon a survey and description of certain property, such survey and description shall be taken and deemed to be part and portion of such policy and warranty on the part of the assured.”
    At the trial the plaintiff put in evidence the policy No. 3931, proved the title to the property, its destruction by fire on the 12th of November, 1851, the amount of loss, and notice thereof to the defendants, and rested.
    The case of the defendants was then opened, and there was given in evidence the application for insurance, in which the following answers, among others, are given by the plaintiff to the following questions: The answers were subscribed by him in writing.

      Question. — What kind of goods are made, and of what materials are they made ? Answer. — Woollen yarn, and some weaving of woollen and cotton goods.

      Question. — What kind of lamps are used, and are they all covered ? If any open lights are used state particularly in what rooms ? Answer. — Closed lights.

      Question. — How are the several stories occupied ? Answer.— Basement for machine shop and for purposes of manufacturingwoollen yarn, as above.

      Question. — Are the building and machinery both owned by the applicant for this insurance ? If not, state by whom, and the nature of your interest ? Answer. — Yes.

      Question. — Are the works operated on account of the proprietor, or are they rented, or are they let to run by the yard ? Answer. —Yes, by the proprietor.

      Question. — Is the property mortgaged, and if so, state the amount ? Answer. — $2000 ground-rent, and $6000 mortgage on the building.

      Question. — IIow many hands are employed in the factory, and what proportion are men ? Answer. — Twenty-nine or less.
    The defendants then gave in evidence the statement of the plaintiff, sworn to January 1, 1852, by way of preliminary proof of loss. The record of agency of A. S. Gillette, with authority “to bind the company to take risks in the city of Philadelphia.” Also the record of two mortgages, one to Paul Thurlo, for $5000, and one to Christopher Bockius, for $1100. Also testimony by a number of witnesses who had been engaged about the buildings in various capacities, to the effect that the building, from the time of the insurance being effected till the fire, was occupied by the plaintiff and others who rented from him, he furnishing the steam-power. Two persons had a machine-shop in the first story; another person occupied the third, story, being engaged in the weaving of woollen and cotton goods; the plaintiff occupied the fourth story in the spinning of woollen yarn; and D. & J. Donnelly occupied the second story for spinning woollen and cotton yarn. They used raw cotton; they had a picker-room and picker, and were picking cotton o.n the day of the fire. The building took fire on the 12th of November, 1851, about 6 o’clock in the evening, before the hands had ceased work. It originated in the picker-room of the Donnelly’s, and a few minutes before the fire was discovered, an open light was seen placed on a stool opposite and close to the cloor of their picker-room. The picker-room had a door-way, hut-no door.
    Besides the mortgage for $6000, reported in the application of July 17, another for $5000, in favor of Paul Thurlo, was executed on July 25,1852 ; and one for $1100 in favor of O. Bockius, on the 25th of October of the same year; of neither of which was notice given to the company. The plaintiff was in the habit of visiting the factory daily; was there on the 12th of November, and had left but a short time before the fire commenced. The number of hands employed about the factory during the whole time was about seventy. An open light was generally used in the building to light up with. Since the fire, they use a covered light to light up with.
    On part of the plaintiff, testimony was given by B. F. Clark, who stated that, aeting for Gillette & Coggshall, he solicited Bruner to insure; That, on the 17th July, 1851, he surveyed the building of Bruner — he went through it, and knew how it was occupied— Bruner was with him — Bruner signed an application in blank; That he (Clark) took it home and filled it up, and gave it to Gillette & Coggshall. The paper was a blank of the Howard Insurance Company. He said he wrote down Bruner’s answers from recollection. He wrote them down correctly. He filled up the blank from his own knowledge of the building and from what Bruner had said to him. He added that Bruner did not, to his knowledge, see the application after it was filled up.
    Coggshall testified that he had visited the premises with a view to the risk, and knew by whom the defendant’s rooms were occupied, and by whom the machinery was owned. He was absent from the city when the application was filled up and the policy countersigned.
    Gillette testified, that he had not visited the building before the risk was taken — Clark brought to the office the application signed by Bruner in blank — it was not the proper form, and the witness prepared another; That they had in the mean time received other blanks. He had some knowledge of the building from risks they had taken for other companies. He said that Bruner said that Falkner and Lewis and himself occupied the first story, the Donnellys the second story, and McNutt the third. He said that at the time the question was put to Bruner as to the number of hands, he thought that Bruner gave him the number of his own hands. The question was asked more in reference to his own hands. In relation to the question whether the buildings and machinery were both owned by Bruner, the witness said that he told Bruner that this question referred more particularly to his own interest; and that he told him that the question as to whether the works were operated on account of the proprietor, or rented, referred more particularly to his own operations.

      Gillette further testified that he knew of the subsequent mortgage to Thurlo from the fact of a policy probably of the Hudson River Company having been brought to the office for transfer, as collateral security for that mortgage. This was before the fire. Bruner’s application was on the 17th July. The policy issued on the 25th. He did not think that the application brought to- the office by Clark was before him when he drew the last application. He said that, at the time he wrote the application, Bruner communicated fully the state of the building.
    Coggshall was recalled, and testified that he would not have charged Bruner any lower rate if the building ha.d been occupied exclusively by himself; also, that he would not have charged any more if others were in the building with many more operatives, if they carried on the same business, and he superintended it himself. Where there are more hands; they can put out a fire quicker. He further said they considered Bruner’s the most hazardous risk in the building.
    The case was tried before Gibson, J. He charged that the party would be hound to disclose everything material to the risk, and he referred to the jury to judge whether there had been any misdescription. Pie observed that the question in regard to the lamps referred to the lamps habitually used, and did not refer to the hand-lamp to light up. The answer to the question how the several stories were occupied, he referred to the jury. He charged that the machinery, the ownership of which was inquired of, was the machinery intended to be insured; That the works referred to in the next question were Brwner’s works — Bruner’s part of the factory. Also, that the answer as to the mortgage was correct at the time; that he did not see how the subsequent mortgages could affect the policy; that they did not affect the risk; that he considered that the answer as to the number of hands employed, meant the number of hands employed in Bruner’s part of the factorp. Pie further charged that, if it should seem to the jury that these answers were taken down correctly by the agent, and that Bruner kept back anything that was material to the risk, which would increase the risk, then the plaintiff could not recover; but if' he disclosed everything fully and fairly, and the fault or error, if any, was on the part of the defendants’ agent who undertook to reduce to writing the plaintiff’s answers, then the verdict ought to be in favor of the plaintiff.
    March 16, 1853, verdict for plaintiff for $6375.
    It was assigned for error, 1. That the Court erred in admitting parol evidence to explain, vary, or contradict the written contract ascertained in the policy and application; 2. In admitting the testimony of B. E. Clark; 3. In admitting the testimony of Coggshall; 4. In admitting the testimony of Gillette.

      Tschudy and H. M. Phillips, for plaintiffs in error.
    It was said that there were in the application several material misrepresentations, viz.: — 1. In regard to the kind of goods, and the materials from which they were made. 2. In regard to the number of hands employed. 8. In regard to the kind'of lights used. 4. In regard to the tenancy and the manner of occupation of the different stories. 5. In regard to the amount of mortgage on the building. It was contended that it was not competent to receive evidence with the view of showing that such misrepresentations occurred in consequence of erroneous instructions given by the agent of the company as to the meaning and application of the questions. That the writing itself should be the evidence of ,the intention of the parties: 1 Greenleaf Ev., § 275, 305; Id. p. 554, 573; 1 Ph. Ev., ch. 10; Starkie Ev., part 4, p. 996-1015. The same rule is administered in a Court of Equity: 7 Ves. 211. Such representations were unwarranted and beyond the scope of the agent’s authority: Story on Ag., § 73-6, 105, 114, 115, 165-6.
    Statements in the application, when that is made part of the policy, of the purposes for which the property insured is to be occupied, and of its situation as to other buildings, are warranties, although the variance is not material to the risk; and parol evidence that the assured truly informed the agent of the insurance company, who prepared the application, as to such particulars, is not admissible: 2 Denio 75; 8 Met. 348; 10 Id. 211; 6 Wend. 488; 3 Comst. 122; 5 Hill 188; 12 Wend. 456; 10 Barbour 285; 8 Howard 235; 6 Hump. 176; 6 Cushing 42.
    As to the subsequent mortgages, it was said that the incidental knowledge acquired by Gillette of the mortgage to Thurlo, did not amount to notice of it. The company was not informed of it. That it was not material that they were executed after the delivery of the policy. That the execution of one for $5000, on the day of the delivery of the policy, and only seven days after the answer,- was a legal fraud: 2 W. & Ser. 506; 2 Duer on Ins. § 25; 1 Marshall 450; 1 Phil. on Ins. 524-534.
    In cases of warranties, the materiality of the facts warranted is of no consequence: 1 Term Rep. 343. Even if the plaintiff did make a full disclosure to the agent, he should not have signed the misstatement or accepted the policy.

      Campbell, for defendant in error.
    It was contended that the evidence as to the correctness of the statements made by the assured was admissible. Reference was made to 5 Rawle 342; 7 W. & Ser., Susquehanna Insurance Company v. Perrine.
    As the company gave the agents the seeming authority, and the power to mislead, it would be a fraud to let them take advantage of the inaccuracy in question. It was alleged that the whole contract was made through the agents, whose countersign was necessary after the approval of the company.
    As to the mortgages, it was observed that neither the policy or the condition required the insured to give -notice of a subsequent mortgage; also when the $5000 mortgage was given, Bruner assigned a policy of insurance on the same building, as collateral security for it, and it could not increase the risk if an existing policy or the same one was assigned and no other insurance made.

    If, upon a proposal and agreement for a life insurance, a policy be drawn up by the insurance officer, in a form which differs from the terms of the agreement, and varies the rights of the parties assured, equity will interfere and deal with the case on the footing of the agreement, and not on that of the policy: 12 Eng. L. & Eq. 171; 2 Duer, § 12.
   The opinion of the Court was delivered by

Lowrie, J.

There can be no doubt that there are important errors and omissions in the written description on which this policy purports to be founded: but the plaintiff has explained all this by the testimony of the defendants’ agents, who prove that they knew all about the property from the verbal description of the plaintiff to them, and from having surveyed it with a view to this insurance, and'that the description was made out under their advice and counsel, and then signed by the plaintiff. This raises the main question, was this legitimate evidence ?

It is very apparent from all the evidence, that this policy was not entered into by the defendants on the faith of the plaintiff’s answers contained in the written application and description; for many of the questions which are very material are only partly answered or not at all; and the whole treaty for the insurance and its terms were completed by the defendants’ agents, who knew all about the property. There is, therefore, no merit in this defence on the ground of the defects of the description; and the law can have no object in sustaining it, except in order to preserve some valuable rule of its own from violation.

It is not unworthy of notice that this is plainly an insurance on a woollen and cotton mill in operation, though not as described; yet in one of the clauses of the policy it is provided that if, after the making of the policy, the building should be used for the purpose of carrying on any trade specified in the memorandum of special rates (and it specifies both woollen and cotton mills), then the policy should be void. We mention this as one of those instances that show that, when a business becomes common and general, we have often to look more to the general character of the transaction than at the special form which it seems to assume in the filling up of printed blanks, prepared to fit the most common class of cases, and not in every instance properly altered to suit the special case.

It is objected that the evidence given is in violation of the rule that protects written contracts from being varied by oral testimony. Is it so ?

Strictly speaking, the description of the property is part of the contract only so far as it defines the subject-matter of the insurance. The description of it, which is made for the purpose of fixing the character of the risk, is only one of the steps leading to the contract.

But it is said that the parties have made it part of the contract, by declaring that the conditions annexed to the policy “ are to be used and resorted to, in order to explain the rights and obligations of the parties.” Now one of those conditions is that a false description by the agents of the assured shall avoid the policy, but not so of description by the agents of the insurers. Another is that a description shall be taken as a part of the policy, and as a warranty on the part of the assured. If, therefore, this description is by the assured, then the contract of insurance is conditioned on its truth and accuracy.

Is it so ? We think it is not, though he signed it. It was all written by the defendants’ agent. The plaintiff informed him of all that is now insisted on as material omissions, and they were omitted by the agent because he deemed them immaterial. It is therefore a description by the agent of. the insurers, and the con ditions of the policy referring to a description by the assured have nothing to do with the case. Any other interpretation of this transaction would allow insurers to make a fraudulent use of the confidence which is always placed in them at a treaty for insurance, and which they always invite. It follows that all the evidence tending to show the knowledge of the defendants’ agents of the character of the property, and their acts in relation to the description, were properly admitted, and that the validity of the policy does not depend upon the completeness of the written description.

We think the learned judge was also right in what he said about the lamps used for lighting, and about the Thurlo mortgage. He neglected to charge as to the effect of any increase in the risk with the assent of the plaintiff, after the making of the policy, but we do not discover any evidence to sustain the point.

Judgment affirmed.


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    Curry versus Spink.
    1. By the Act of 10th April, 1848 (Acts 449), exclusive jurisdiction is conferred upon the District Court, Philadelphia, of a claim for materials existing against several buildings and apportioned among them, notwithstanding the apportioned claims are severally less than the sum to which the jurisdiction of the said Court is limited — the whole claim being within the jurisdiction of the said Court.
    2. The Common Pleas having no jurisdiction of such claim, it was properly stricken from the record.
    Error to the Common Pleas, Philadelphia.

    A claim for materials was filed in, the Common Pleas, in December, 1849, in favor of Robert Curry, for. $190.50, against six houses and lots; and the same was apportioned among them equally, being $31.75 to each. The 'claim was filed against William Spink, contractor, and others, as owners.
    Writs of scire facias were issued against the houses and lots numbered 1 and 2, and judgments were obtained for the amount claimed, with interest.
    On 22d October, 1853, the Common Pleas, on motion of the counsel for a purchaser of the properties described in the other four cases, granted a rule to show cause why the claim should not he stricken off; which rule the Court subsequently made absolute.
    It was assigned for error: That the Court erred in striking off the claim after judgment in the sci. fas. No. 1 and 2; and, secondly, in striking off the claim on the ground of want of jurisdiction.
    In the 5th section of the Act of 10th April, 1848 {Acts, p. 449), it is provided, that the District Courts of the counties of Philadelphia, Lancaster, and Allegheny, shall have jurisdiction of all joint claims against two or more buildings owned by the same person or persons, now filed, or that may be filed in said respective counties, in accordance with the provisions of an Act entitled “An Act relating to the lien of mechanics and others upon buildings,” passed June 16, 1836, wherein such mechanics and others claim a sum equal to that of which said Courts have respectively jurisdiction, according to several Acts heretofore passed, constituting and regulating them, notwithstanding the several apportioned claims therein be less than the sum of which said Courts have jurisdiction as aforesaid: Provided, That nothing herein contained shall prevent or impair the issuing and executing of separate writs of execution, as heretofore, against all or’any of such several apportionments.

      Longstreth, for plaintiff in error.
    It Vías alleged that, under the 12th section of the Act of 16th June, 1836, the jurisdiction depende! on the sum in. controversy; also cited Act of 30tb March, 1811, secs. 1 and 2. The Mechanics’ Lien Act of 16th June, 1836, in the 11th section, provides that the claim shall be filed in the Common Pleas ; and the proviso to the 27th section preserves the relative jurisdiction of the Common Pleas and District Court of Philadelphia. The Act of 1848 gave a new jurisdiction, but it did not divest the jurisdiction before existing in the Common Pleas; and it is a principle in the construction of statutes, that affirmative words do not take away the common law, a former custom, or a former statute: Dwarris on Statutes 712; 3 Black. Com. 90; 3 Penn. L. J. 464; 9 Ser. & R. 298 ; 3 Yeates 479; 1 Burrow's Rep. 1041; 1 Mod. 45; 11 Coke 63; 1 Bladestone Rep. 231; 9 Price 301; 10 Id. 138.

      Johnston, contó.
    March 20,
   The opinion of the Court was delivered, oy

Knox, J.

In Woodruff et al. v. Chambers, 1 Harris 132, this Court decided that where a claim was filed under the Mechanics’ Lien Law, for a sum exceeding $100, but so apportioned amongst several buildings as to make the lien against each less than $100, in determining the question of jurisdiction of the Court the claim was to be considered as an entirety. In that case, the jurisdiction of the District Court for Philadelphia city and county was sustained. For the same reason, and upon the authority of the case, we must deny jurisdiction to the Common Pleas in the case before us. Where a claim is filed in a Court having no jurisdiction, the proper course is to order it to be stricken from the record, as it is a nullity.

Proceedings affirmed.