text:
    Suker, Appellant, v. Conner.

      Equity — Trusts and trustees — Specific performance.

    On a bill in equity for specific performance it appeared from the bill that the principal defendant therein, a contractor, had agreed with the plaintiff, a subcontractor, in writing, to convey a particular property to a trustee as security for a deferred payment to become due to plaintiff as a subcontractor. The defendant conveyed the property to a person who was named as a codefendant, without any consideration passing, to hold the same as trustee for plaintiff. The trustee took with full knowledge of the terms of the agreement. The trustee with another person as cotrustee, held a mortgage on the property in question, and without notice to plaintiff, entered judgment on the bond accompanying the mortgage, sold the property at sheriff’s sale, and had his own attorneys bid it in. Before acknowledgment of the sheriff’s deed, plaintiff tendered the amount of the mortgage, with interest and costs, to the mortgagees. The principal defendant defaulted on his contract with the plaintiff. Held, (1) that it was error to sustain a demurrer to the bill; (2) that the plaintiff had a right to the protection of a court of equity against the fraud of the trustee; (3) that the case was within the proviso of the fourth section of the Act of April 22, 1856, P. L. 532; (4) that the plaintiff having an equity in the property had the same standing as the defendant in the execution to tender the amount of .the execution and costs before acknowledgment and delivery of the sheriff’s deed; (5) that the case was not within the Act of June 8,1881, P. L. 84, which declares that a defeasance to an absolute deed must be in writing and be recorded; and (6) that the plaintiff had no adequate remedy at law.
    Argued Dec. 19, 1908.
    Appeal, No. 206, Oct. T., 1908, by plaintiff, from decree of C. P. No. 1, Phila. Co., March T., 1908, No. 5,859, sustaining demurrer to bill in equity in case of Gustavus W. F. Sulzer, trading as Sulzer & Company, v. James H. Conner, David R. Carson, The Central Trust & Savings Company and W. Moseley Swain, substituted trustees of the Estate of William J. Swain, deceased, The Central Trust & Savings Company, Wilson H. Brown, sheriff of Philadelphia County, and Mary B. Irwin.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Bill in equity for specific performance and for a conveyance.
    Demurrer to bill.
    The principal averments of the bill and the grounds of demurrer are set forth in the opinion of the Superior Court.

      Error assigned was in sustaining the demurrer.

      G. Von Phul Jones, for appellant.
    In the bill is a distinct averment of fraud which is sufficient to set aside the sale and also to give a remedy in equity, aside from any other branch of the case: Evans v. Maury, 112 Pa. 300; McHenry’s App., 61 Pa. 432; Enyard v. Enyard, 190 Pa. 114; Miller v. Baker, 160 Pa. 172; Latch v. West End Trust Co., 32 Pa. Superior Ct. 472; Columbia Bank’s Est., 147 Pa. 422; Johnston v. Laflin, 103 U. S. 800.
    If one received a conveyance of lands or other property, absolute in form, but really as security for a debt, he will hold the legal title in trust for the grantor.
    Conner is the only person entitled to plead the statute of frauds and he has admitted the trust: Hauser v. Lamont, 55 Pa. 311.
    There was no duty on the part of the plaintiff to pay the mortgage interest or see that it was paid: Eshbach v. Zimmerman, 2 Pa. 313.
    The plaintiff had no adequate and complete remedy at law: Filbert v. Philadelphia, 181 Pa. 530; Hawley v. Hampton, 160 Pa. 18.

      December 13, 1909:
    Plaintiff is entitled to specific performance: Patterson v. Wilson, 19 Pa. 380; Conover v. Wright, 9 Pa. Dist. Rep. 688; Larison v. Burt, 4 W. & S. 27; Long v. Perdue, 83 Pa. 214.
    This transaction is not within the act of June 8, 1881, requiring defeasances to be in writing: Moran v. Munhall, 204 Pa. 242; Goodwin v. McMinn, 193 Pa. 646; Bank v. Peace, 27 Pa. Superior Ct. 643; Whelen v. Whelen, 11 Pa. Dist. Rep. 14.

      Wayne P. Rambo, with him Ormond Rambó, for appellees.
    The claimant has a full, adequate and complete remedy at law: Van Sciver v. Churchill, 215 Pa. 53; Drake v. Brown, 68 Pa. 223; 1 Troubat & Haly’s Practice, sec. 1003, 576; Davis v. Michener, 106 Pa. 395.
    Appellant is not entitled to specific performance.
    The plaintiff’s bill does not set forth any facts upon which defendants should be decreed to hold the property as trustees: Sankey v. Hawley, 118 Pa. 30; Molly v. Ulrich, 133 Pa. 41; Grove v. Kase, 195 Pa. 325; Crotzer v. Bittendender, 199 Pa. 504; Lohrer v. Russell, 207 Pa. 105; Guaranty Co. v. Linton, 213 Pa. 105; Sterck v. Germantown Homestead Co., 27 Pa. Superior Ct. 336.
    The mortgage on the real estate in question was held by the trustees of the Swain estate, who sold the property for default in payment of over one year’s interest, and the rights of the mortgage holder are superior to those of plaintiff.
   Opinion by

Henderson, J.,

This case comes before us on an appeal from the judgment of the court below sustaining a demurrer to the plaintiff’s bill. The averments of the bill are therefore taken to be admitted in the present consideration of the case. What, then, are the material facts alleged?

The defendant, Conner, was engaged in a building operation in the city of Philadelphia, which involved the erection of 157 houses. While that work was in progress he entered into, a contract in writing with the plaintiff to furnish and attach the gas fixtures called for by the plans of the houses, as a consideration for which material and work he was to receive $4,000, $3,000 of which was to be paid in weekly installments as the material was delivered and the work progressed, and the remaining $1,000 at the completion of the buildings. The contract also provided that a certain house and lot known as No. 12 on the plan, and particularly described in the bill, should be conveyed to a trustee, that conveyance to be accepted as collateral to secure the payment of the $1,000 payable when the houses were completed. Pursuant to this agreement Conner conveyed the designated house and lot to David R. Carson, one of the defendants, who was an employee of the Central Trust & Savings Company, another defendant, Carson acting as the agent of that company in accepting and holding title to the lot in trust according to the terms of the contract referred to. All of the provisions of the contract, and the rights and equities of the plaintiff thereunder, with reference to this property, were known to and approved by the trust company, and a triplicate copy of the contract remained with it from the time of its execution, and the said company received and accepted title to the premises in the name of its agent, Carson, without paying any consideration therefor and solely for the purpose of securing the plaintiff in the payment of the $1,000. At the time of this conveyance there was an outstanding mortgage of $2,800 on the lot and the conveyance was made subject thereto. This mortgage was executed May 1, 1906, and on November 12, 1906, the title thereto became vested in the Central Trust & Savings Company and W. Moseley Swain, trustees of the estate of William J. Swain. Interest on this mortgage was to be paid by Conner, and funds were set aside in the hands of the trust company for that purpose. The money was not so applied and on January 21, 1908, the trustees of the Swain estate above named, with a knowledge of the plaintiff’s rights in the premises, caused a judgment to be entered on the bond accompanying the mortgage referred to and issued an execution thereon, upon which the property was sold and bid in by the attorneys for the said trustees at the bid of $50.00, of which levy and sale the plaintiff had neither notice or knowledge until some time thereafter. And it is averred that the proceedings on the mortgage were carried on secretly with the intention of depriving the plaintiff of his security under his contract with Conner and his equity in the mortgaged premises. The gas fixtures for part of the houses were not delivered by the plaintiff but were specially manufactured by him and were ready to be attached and were tendered to Connor, but he declined to receive them. The plaintiff thereupon brought suit on the contract for the amount due thereunder and obtained judgment in the sum of $2,846.89, which was the whole amount due the plaintiff under the contract, less $1,181.29 theretofore paid.

In order to protect the title to the lot conveyed to Carson the plaintiff offered to pay off the judgment, interest and costs due on said mortgage, and by the said attorneys was referred to the Central Trust & Savings Company, one of the trustees of the Swain estate, as the party with whom the business should be transacted, and on May 26, 1909, a tender was made by the plaintiff to the trust company of the amount of the judgment, interest and costs due on the mortgage, and at the same time he requested that company to mark the mortgagees’ bid at the sheriff’s sale to the use of the plaintiff, which offer was not accepted. The plaintiff thereupon filed his bill praying that the defendants be ordered to specifically perform the contract with the plaintiff in relation to the lot conveyed; that the trustees of the Swain estate be enjoined from demanding a deed to the premises from the sheriff to themselves or any other person; that Carson and the trust company be decreed to hold the property in accordance with the terms of the contract as trustees thereunder; that upon payment to the mortgagees of the amount of their claim, Carson be decreed to convey the property to the plaintiff in part payment of the amount due him on his claim; that upon the payment of the sum due on the mortgage the trustee of the Swain estate be directed to tender a deed of the lot conveying the same to the plaintiff, and that upon the payment of the sum due to the mortgagees the sheriff be directed to execute and acknowledge and deliver to the plaintiff a deed conveying the property to him.

Defendant Conner filed an answer admitting the contract with the plaintiff and the conveyance of the lot to Carson for the purpose set forth in the bill; that the contract price was due to the plaintiff and that judgment had been recovered against him for the full amount thereof. The demurrer was filed several days after the answer by Conner and must- be understood to be a demurrer of the other defendants, for the answer of Conner covers the whole bill and the demurrer has the same scope. The answer therefore overrides the demurrer as to Conner. Numerous grounds of demurrer are assigned which may be sufficiently considered without special reference to each. The contentions in support of the demurrer are:

(a) That the plaintiff has an adequate remedy at law.

(b) That the appellant is not entitled to a specific performance of the contract.

(c) That the bill does not exhibit facts upon which the defendants should be declared to hold the property as trustees.

(id) That the rights of the holder of the mortgage are superior to those of the plaintiff.

The position of the appellant is that Carson as the representative of the trust company holds the property as trustee for the plaintiff, and that the latter has standing in equity to protect his interest in the property so conveyed by paying the prior mortgage and becoming subrogated to the rights of the mortgagees. It is declared by the plaintiff and admitted by the grantor in the deed to Carson, that the conveyance to the latter was without consideration from Carson or from the trust company, and for the purpose of securing to the plaintiff the payment of the $1,000 on account of which the conveyance to Carson was made, and the contrary is not asserted by anyone; under the pleadings as has been observed Carson and the trust company admit as much. What, then, is to prevent the plaintiff from insisting that the arrangement entered into be carried out according to the understanding and agreement of the parties?

It is argued in support of the demurrer that the Act of April 22, 1856, P. L. 532, which requires all declarations of trust of any lands to be manifested in writing, prevents the complainant from asserting any interest in the property in the hands of Carson. This is equivalent to saying that Carson may dispose of the property without regard to the rights either of the plaintiff or Conner, for the latter having conveyed it for the purpose of paying the plaintiff has parted with his whole title; and this, too, notwithstanding the fact that Carson procured the title because of confidence reposed in him and the trust company that it should be held in accordance with the agreement between the plaintiff and Conner. It is manifest that except for this confidence he would not have received the conveyance. He had no control over the property, and there was no reason why it should have been conveyed to him, except to secure the result which the plaintiff now insists should be brought about. If the plaintiff has no grip on the property it is gone beyond his reach or that of the grantor. As the conveyance was without consideration and the circumstances show that it was not intended that the grantee should take beneficially, the law does not permit a consequence so inequitable to occur. A denial of the plaintiff’s rights by Carson would be a breach of the confidence imposed in him and therefore an act of bad faith and fraudulent. This would bring the case within the proviso of the fourth section of the act of 1856, which provides that where any conveyance shall be made of lands or tenements by which a trust or confidence shall arise by implication or construction of law, such trust or confidence will have like force and effect as if the act had not been passed: Seichrist’s App., 66 Pa. 237; Squires’s App., 70 Pa. 266; Roth v. Humrich, 76 Pa. 128; Goodwin v. McMinn, 193 Pa. 646; Bisph. Eq. (5th ed.), secs. 79, 80. Moreover, the plaintiff paid a valuable consideration for the title placed in the hands of Carson. The presumption is that he was unwilling to furnish the material and do the work which Conner required without the security provided for. Material to the value of $1,000 was advanced to Conner on the faith of this title. The case presents something more than a mere agreement that Carson should take the title.

If, then, the plaintiff has an interest in the property in question he has standing to apply for subrogation to the rights of the mortgagees. Their interest in the property is that their debt may be paid. The exigency of the plaintiff’s situation is that unless he pay the mortgage the property will be swept away from him. It is true, as contended by the appellee, that the rights of the mortgagees are superior to those of the appellant, but this is only to the extent that their debt be first paid. When they receive the amount due to them and the costs of the proceedings, they have no other claim on the property than that secured by the bid at the sheriff’s sale. A legal tender of the whole amount of their debt, with interest and costs, has been made to them as set forth in the bill, and when they receive this they ought not to be permitted to contend that they have any further interest in the property, in view of the allegations in the bill, one of which charges a secret combination of the defendants in prosecuting the suit on the mortgage with the intention to deprive the plaintiff of his interest in the premises. While a purchaser at sheriff’s sale may have what has been called an “inceptive” interest, his contract with the sheriff is imperfect and the proceeding is subject to the control of the court. But as between the sheriff’s vendee and the debtor he is without title or interest until acknowledgment and delivery of the deed, and up to that time the debtor tendering the amount of the execution and costs may avoid the sale, if he was without other fault than a failure to make prompt payment of the claim, in which case the court would probably decline to take an acknowledgment of the deed: Collins v. Assurance Corp., 165 Pa. 298; Hall v. Benner, 1 P. & W. 402; Garrett v. Dewart, 43 Pa. 342; Scheerer v. Stanley, 2 Rawle, 276.

The plaintiff now having the equity in the property is in the place of the debtor with reference to the right to discharge the obligation.

It is argued in behalf of the appellee that the deferred payment of $1,000 never became due; that the plaintiff’s claim was for a breach of contract and that the conveyance to Carson was not made nor agreed to be made to secure the plaintiff for damages arising from a breach of contract, but it is specially averred in the amendment to the bill that the plaintiff brought an action on the contract and recovered judgment for the amount due him on the contract. This is a sufficiently broad averment to cover proof of either complete or substantial performance, and as that averment of the bill is admitted by the defendant Conner, the other defendants have no interest in the subject and should not be permitted to set up that defense,

It is further contended that the conveyance to Carson is within the Act of June 8, 1881, P. L. 84, which declares that a defeasance to an absolute deed must be in writing and must be recorded, but we do not consider this statute applicable to the facts here set up. The deed was absolute and was so intended. It put the title out of Conner for the purpose of enabling the plaintiff to realize on the security. The evident intention was that the property should be sold and the proceeds applied to the discharge of the obligation. There was no provision for the return of the property to the grantor. If any of the purchase money remained after payment of the plaintiff, Conner could only claim that surplus.

Has the plaintiff an adequate remedy at law? His action on the contract is not the limit of his remedies. One thousand dollars became due under his contract when the building operation was completed. The provision for security for this payment is not inconsistent with the general obligation of Conner under the contract. An action against the debtor is not a bar to a proceeding to secure payment from collateral security: Hawley v. Hampton, 160 Pa. 18.

An action at law would be wholly inadequate to reach the property which has been set apart as the plaintiff’s security. If the sheriff’s deed is delivered to the purchaser nothing remains for the plaintiff. It is not the case of VanSciver v. Churchill, 215 Pa. 53. There the property had been.sold and converted into money by the trustee who had a right to make the sale. The prayer of the bill was that a portion of the purchase money be set aside or paid into court. On this state of facts the court held that the plaintiff’s remedy was an action at law for money had and received for his use. In that case, too, there were inconsistent averments in the bill and if the averment of the sixth paragraph was true no trust was created.

Taking the case as it is now presented to us, all of the averments of the bill being assumed to be true, we are of the opinion that a trust has been shown as to the property in question, in David R. Carson, in favor of the plaintiff; that the latter is entitled to protect his interest therein by payment of the mortgage, and the interest and costs due thereon, in which event he should be subrogated to the rights of the mortgagees, and that the only adequate relief is by injunction and a decree enforcing the trust.

The decree is therefore reversed and the bill reinstated, and it is directed that the record be remitted to the court below for further proceedings according to equity practice, and it is further ordered that the costs of this appeal be paid by the appellee.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Commonwealth v. Williams, Appellant.

      Criminal law — Perjury — Improper remarks of district attorney— Record óf magistrate — Withdrawal of juror.

    1. On the trial of an indictment for perjury for swearing falsely before a magistrate, as the record of the magistrate is admissible as inducement though not'to prove the falsity of the prisoner’s testimony, it is not reversible error for the trial judge to refuse to withdraw a juror because the district attorney stated in his opening that he would prove that the magistrate dismissed the proceeding.
    2. In such a case a remark made by the district attorney in the presence of the jury that the prisoner’s turn had come to go to jail, is highly objectionable, but the refusal of the trial judge to withdraw a juror because of the remark is not ground for reversing the judgment, if' it appears that the trial judge condemned the remark as soon as it was made.

      Criminal law — Perjury—Evidence—Cross-examination.
    3. On the trial of an indictment for perjury where the prisoner has been properly cross-examined as to matters developed in her examination in chief, it is reversible error for the trial court to permit the district attorney to continue the cross-examination so as to inject into the case wholly foreign and irrelevant matter, manifestly tending to mislead the jury to the prisoner's prejudice. Thus where the prisoner had been properly cross-examined as to a part that she had taken in a criminal prosecution of certain persons, it is error to permit the district attorney, on further cross-examination to ask the prisoner whether the judge at the trial of the other case had not characterized her as an abandoned, depraved and untruthful woman.

      Criminal law — Perjury—Stenographer’s notes — Exception to testimony.

    4. On the trial of an indictment for perjury it appeared that a stenographer took stenographic notes of the testimony of the prisoner before a magistrate, on which testimony the charge of perjury was based. The stenographer testified that he had dictated his notes to a typewriter, and subsequently destroyed them as they were not official. He testified that the transcript was correct, and the district attorney offered it in evidence. The prisoner's counsel objected that the notes and transcript had not been properly compared, and that the witness had no knowledge outside the notes. The court overruled the objection and the prisoner excepted. The transcript was then read to the jury without any further objection or exception being taken. Held, on appeal, that the prisoner could not assign as error various portions of the cross-examination included in the transcript, and as to which no exception had been taken.
    5. Such a case is a proper one for the application of the general rule, that when a party opposing the admission of evidence enumerates his objections, all that are not enumerated are waived.

      Appeals — Paper-books—Evidence.
    6. An order of court permitting an appellant to print in her paper-book only such portions of the transcript of testimony as in the judgment of her counsel are material in the consideration of the exceptions a,nd the assignments of error, does not relieve her from the duty of printing such portions of the testimony as manifestly are absolutely essential in such consideration.
    7. Thus where the appellant alleges as error the refusal of the admission of the notes of testimony of a witness given in a prior judicial proceeding, she is bound to print in her paper-book the preliminary proof that at the time of the trial the witness was beyond the jurisdiction of the court, or for other reasons could not be produced. If she fails to print such proof her assignments of error to the action of the court in this particular, will be dismissed.

      Criminal law — Perjury—Evidence—Letters.
    8. Where on the trial of an indictment for perjury the prisoner exhibits for the purpose of identification of a witness, certain letters purporting to bear the signature of the witness, and before they are offered in evidence the court impounds them at the request of the district attorney, so that they may be examined by the commonwealth’s expert,' such action of the court is not ground for reversal if it appears that it was the intention of the prisoner to offer the letters in evidence at the proper time, and that she actually did so. The action of the court was in no way harmful to the prisoner’s case.

      Criminal law — Perjury—Evidence—Convictions {or other crime— Cross-examination.

    9. Where a prisoner takes the stand on his own behalf he may be asked on cross-examination, in order to test his credibility, whether he had not been convicted and sent to prison for other criminal offenses.
    10. The limits of cross-examination of a defendant in a criminal case who offers himself as a witness are largely within the discretion of the trial judge, and unless that discretion is so abused that substantial injury has resulted to the accused, the judgment will not be reversed.
    Argued Oct. 4, 1909.
    Appeal, No. 117, Oct. T., 1909, by defendant, from judgment of Q. S. Phila. Co., June T., 1907, No. 524, on verdict of guilty in case of Commonwealth v. Helen Williams, alias Helen V. Abrams.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for perjury. Before Carr, J.
    At the trial it appeared that the defendant was indicted for perjury in swearing before Magistrate Eisenbrown in the case of Commonwealth v. Samuel Abrams charged with desertion and nonsupport, that she was married to him on September 4, 1906, by the Rev. George Lewis Wolfe at Wilmington, Delaware, and also for perjury in then and there swearing that a certain man then and there produced was not Elwood Williams, her first husband.
    The assistant district attorney in his opening made the following remark: "I will show you that the magistrate dismissed the proceedings wherein she (the defendant) had Abrams arrested for desertion.”
    The defendant asked .that a juror be withdrawn. Motion overruled. Exception. [1]
    When the prisoner was on the stand she was asked this question:
    “Q. You came out of prison in 1901?”
    Mr. Wain: I admit she was in prison.
    “A. It is everbody’s turn to get there.”
    Mr. Gray: Your turn is coming now.
    Mr. Wain: I object to that remark of the district attorney and I ask for the withdrawal of a juror. I except to the remark.
    The Court: I will grant you the exception.
    Mr. Wain: Your honor will not withdraw a juror?
    The Court: No; it was an improper remark and should not have come now. I grant you an exception. [2]
    “Q. Do you recall him (Judge Penny?acker) saying this to the jury, ‘This case has been a marvelous exhibition-’ ”
    Objected to. Objection overruled. Exception noted for defendant by direction of the court.
    “Q. Do you remember him saying this to the jury: ‘This case (Commonwealth v. Bass & O’Neill) has been a marvelous exhibition of wickedness and depravity and falsity, but, fortunately for you and for the cause of justice, the questions which arise here are very simple.
    “ ‘The prosecutrix here (the defendant herein) is an abandoned, depraved and untruthful woman. She was living apart from her husband. She was living in a house with the husband of another woman. The house was being used for an unlawful business, by means of which disappointed and unhappy women were deceived into expending their money. She presented the man who was living with her as her husband and she did it so formally as to make that presentation in the shape of sworn papers filed in a case in court, and when she came upon this stand she did not hesitate to deny that this was what she had done. When she discharged from that house the man who had been living upon her bounty for years, they (the defendants) did not hesitate, as his friends, to go to her to persuade her to take him back upon the same terms.’ ”
    The Witness: When did you have that printed?
    Objected to by defendant’s counsel.
    The Witness: I don’t know where it ever came from.
    Mr. Gray: I will tell you where it came from. It came from one of the papers of March 1, 1900.
    Mr. Wain: I object to the question. Objection overruled. Exception noted for defendant by direction of the court. [3]
    The Court: This witness is entitled, if she remembers, to say what was said at that trial. The question is whether you remember or do not remember what the judge did say.
    Mr. Gray: “Q. I show you the record, February 28, 1900, ' Verdict of not guilty as to Bass & O’Neill.’ State whether or not that verdict was not rendered under the instructions from Judge Pennypacker, when he instructed them, as I have read, that you were not to be believed under any circumstances and a verdict of not guilty should be rendered.
    Objected to. Objection overruled. Exception noted for defendant by direction of the court. [4]
    Magistrate Eisenbrown was asked this question:
    “ Q. That was the reason you discharged the defendant, • because she was a nonresident, and so stated at that time, didn’t you?”
    Objected to. Objection sustained. Exception noted for defendant by direction of the coui*t. [5]
    The stenographer, Mr. Clift, was asked this question:
    ”Q. Answer the first question I put to you by reading it off.”
    Mr. Wain: I object. Objection overruled. Exception noted for defendant by direction of the court. [6-17]
    The Court: (Magistrate Eisenbrown.)
    “Q. Did you have him (Prader) arrested? A. With this man’s consent. No, he was not arrested. He came down to the magistrate with him. Before the child was born, that I have denied to protect this man, and that I will bring doctors in the house that will prove he is my child, and I am willing to serve twenty years’ imprisonment for denying it to save the man I have saved for twenty years. After his wife Fannie Abrahams came to the house and said she was going to have me arrested for fornication and bastardy, him and me together, he came on his knees to me and said, ‘The only way you can save me is I have a friend in the same club I am in. He will come and say he is the man who is putting up for you and you are after him for support. Will you come down to a friend of mine by the name of Scott. He will send you there. He has the case now. You go down and meet him. There is $50.00. You give it to Prader and he will give it back to you and say you will settle for him, sign your name, and I will show my wife. You will save me for everything. For God’s sake will you do it?’ I hesitated a long time. At last I did it. Q. You brought suit against the traction company once, did you not? A. I certainly did. Q. Charles Williams brought suit as your husband at the time? A. Never to my knowledge. Q. You swore to the statement of claim in that case, did you not? A. I certainly did swear to a statement of claim that I was injured. Q. And that this man was your husband? A. Never. I was lying sometimes unconscious and not able to speak and had hemorrhages. I never swore to any such thing. Q. Do you remember going before Judge Finletteb in 1888 and testifying that your son Alfred was Roach’s son? A. No, sir. Q. Did you not plead guilty on March 4, 1902, to a bill of indictment, No. 837, September Sessions, 1901, charging you with keeping a disorderly house and keeping a bawdy house? A. Never. I will sue you for everything you are worth in the world. Q. Were you charged, February Sessions, 1900, No. 131, as Helen Williams, alias Madam June, with fortune telling? A. No, I was not. They indicted me certainly, but not that I ever was Madam June. They said I told fortunes. That is the traction company, yes. Q. Please read that transcript and say whether that is the testimony taken-”
    The Court: Read it aloud?
    Mr. Wain: Yes.

      Objected to by the district attorney. Objection sustained. Exception for defendant noted by direction of the court. [18]
    : “A. He did testify on the subject of the identity. Q. State whether or not he identified a person then present as the man he married on September 4, 1906, to this defendant in Wilmington, Delaware.”
    Objected to by the district attorney. Objection sustained. Exception for defendant noted by direction of the court. [19]
    Mr. Wain: I want to make a formal offer of the typewritten notes.
    The Court: Identified by the witness?
    Mr. Wain: Yes, of the testimony of Rev. George Louis Wolfe, pages 69 to 80, inclusive.
    Objected to by the district attorney. Objection sustained. Exception for defendant noted by direction of the court. [20]
    The learned judge erred in sustaining the commonwealth’s objection to the following question by defendant:
    Mr. Wain: I also ask the witness if he cannot, by reading these notes and refreshing his memory from these notes, state exactly what the testimony of George Louis Wolfe was on examination in chief and cross-examination, after he was sworn in that case of Commonwealth against Abrams, before Magistrate Eisenbrown.
    Objected to by the district attorney. Objection sustained. . Exception for defendant noted by direction of the court. [21]
    Certain letters of Samuel Abrams were presented by defendant.
    The district attorney: Inasmuch as this is a matter of some importance, I ask that the paper, the signature to which the witness has identified as his, and the paper as to which he says the signature is not his, be impounded by the court, in order that'the commonwealth’s expert may examine them tonight.
    The Court: Is there any objection to that?
    Mr. Wain: I do not want them to go out of my possession. I will show them to any expert in the world. They are not offered in evidence. They will be offered in evidence at the proper time.
    The request of the district attorney that the letters be impounded is granted by the court.
    An exception for defendant to this ruling of the court is noted by direction of the court. [22]
    The prisoner on the stand:
    “ Q. Were you not tried on May 24, 1900, under the name of Helen Williams, alias Madam Drayton, charged with fortune telling, convicted and sentenced to one year in the county prison, which you duly served?”
    Mr. Wain: I object. Objection overruled. Exception noted for defendant by direction of the court. [23]
    “Q. Is it not a fact that you were, under the name of Helen Williams, arrested and convicted under a bill of indictment of September Sessions, 1901, No. 837, on which you were tried on April 4, 1902, for keeping a disorderly house? A. Your honor, I beg you to make Gray prove it. I beg you to make him prove the house that I lived in.”
    Mr. Wain: I object to the question. Objection overruled. Exception noted for defendant by direction of the court. [24]
    Verdict of guilty, upon which the defendant was sentenced to two years’ imprisonment.

      Errors assigned among others were (1-33) rulings on evidence, quoting the bill of exceptions, either set forth above, or stated in the opinion of the Superior Court.

      S. Morris Wain, with him Joseph W. Shannon, William B. Crawford and John W. Wescott, for appellant.
    The district attorney had no right to express his opinion to the jury that defendant was guilty or that she was “going to jail now:” Com. v. Bubnis, 197 Pa. 550; Com. v. Nicely, 130 Pa. 261.
    The district attorney had no right to state to the jury that the issue before them had been decided by the magistrate adversely to the defendant: Hyslop v. Crozier, 1 Miles, 267; Fisher v. Penna. Co., 34 Pa. Superior Ct. 500; Holden v. Penna. R. R. Co., 169 Pa. 1; Wagner v. Hazle Twp., 215 Pa. 219.

      December 13, 1909:
    The remarks of the district attorney as to a charge in another case was of irreparable injury to appellant: Butler v. Slam, 50 Pa. 456; Wagner v. Hazle Twp., 215 Pa. 219.
    The testimony of an absent or deceased witness given at a former trial between the same parties touching the same subject-matter is admissible: Com. v. Cleary, 148 Pa. 26; Com. v. Keck, 148 Pa. 639; United States v. Macomb, 5 McLean, 286; Summons v. Ohio, 5 Ohio St. 325; Rhine v. Robinson, 27 Pa. 30; P. & R. R. R. Co. v. Spearen, 47 Pa. 300.

      William, A. Gray, assistant district attorney, with him Samuel P. Rotan, district attorney,’ for appellee.
   Opinion by

Rice, P. J.,

The defendant was indicted for perjury in swearing before a magistrate of Philadelphia, in the case of Commonwealth v. Samuel Abrams, charged by her with desertion and nonsupport, first, that she was married to Abrams on September 4, 1906, by the Rev. George Lewis Wolfe at Wilmington, Delaware, second, that a certain man then and there produced was not Ellwood Wilson, her first husband.

As the record of that-proceeding was admissible as inducement, though not to prove the falsity of the testimony assigned as perjury, it is not apparent that there was reversible error in refusing to withdraw a juror because the assistant district attorney stated in his opening that he would prove that the magistrate dismissed the proceeding. The case differs substantially from Fisher v. Penna. Co., 34 Pa. Superior Ct. 500, for there the objectionable remark of counsel related to action of the magistrate that could not be proved for any purpose. Of course, the record could not be used legitimately for the purpose of showing the opinion of the magistrate as to the truthfulness of the testimony in order to influence their judgment upon that question, but it does not satisfactorily appear that it was permitted to be used for that purpose. Therefore, the first and fifth assignments are overruled.

The remark of the assistant district attorney, made in the presence of the jury, to the defendant when under cross-examination, to the effect that her turn to go to jail had come, was highly objectionable for more than one reason and he frankly admits that it ought not to have been made. It was an invasion of that right which every witness has when testifying to protection against degrading or humiliating accusations directly made by the cross-examiner. The remarks of Rogers, J., in Morss v. Palmer, 15 Pa. 51, and of Paxson, J., in Buck v. Com., 107 Pa. 486, relating to the right of witnesses to such protection, are pertinent. Moreover, it is proper to say in this connection, as was said in Com. v. Bubnis, 197 Pa. 550, that “ in his official capacity, clothed with the greatest responsibilities, and exercising functions in a measure judicial, the district attorney should ever be cautious in expressing to a jury his belief in the guilt of the accused.” See also Com. v. Swartz, 37 Pa. Superior Ct. 507. If that is ever permissible or excusable, it is not so when the accused is under cross-examination. If the trial judge had seen fit to withdraw a juror because of the remark, the commonwealth would have had no just cause to complain. We cannot say, however, that his immediate condemnation of the remark was not sufficient to counteract any prejudicial effect it might have had otherwise, and therefore the second assignment is overruled. See Cook v. Erie Electric Motor Company, 225 Pa. 91.

The defendant was cross-examined as to a criminal case or cases she had instituted against persons named Bass and' O’Neil, and several questions were asked her as to the testimony she had given in those cases and as to the statements she had made to the assistant district attorney at the time of the trial. The evident purpose of this cross-examination was to lay ground for contradicting her testimony in the present case by the testimony she had given and the statements she had made in'the trial of the cases she had referred to. After having been cross-examined at some length as to these matters, she was interrogated as to her recollection as to what happened at the trial, and replied that in some things her recollection was good but that she could not recollect everything. Thus far there is no objection raised to the cross-examination. But then, she having been interrogated as to who presided at the trial and having stated that it was Judge Pennypacker, the assistant district attorney was permitted under objection and exception to put the following question to her, reading from a newspaper clipping: “Do you remember him saying this to the jury: ‘This case has been a marvelous exhibition of wickedness and depravity and falsity, but, fortunately, for you and for the cause of justice, the questions which arise here are very simple. The prosecutrix here is an abandoned, depraved and untruthful woman. She was living apart from her husband. She was living in a house with the husband of another woman. The house was being used for an unlawful business, by means of which disappointed and unhappy women were deceived into expending their money. She presented the man who was living with her as her husband and she did it so formally as to make that presentation in the shape of sworn papers filed in a case in court, and when she came upon this stand she did not hesitate to deny that this was what she had done. When she discharged from that house the man who had been living upon her bounty for years, they (the defendants) did not hesitate, as his friends, to go to her to persuade her to take him back upon the same terms.’ ” This was not legitimate cross-examination. The door was not opened for its admission by anything that she had testified to in chief. This being so, what could have been more irrelevant and more prejudicial to the defendant than to prove or compel her to admit that in the trial of another case she had been characterized by the eminent presiding judge as an abandoned, depraved and untruthful woman. But it may be said that as she did not admit that she had been so characterized, no harm was done. This is not a satisfactory answer to the assignment. Ordinarily, it is true, it is not sufficient to show that an improper question, either in form or in substance, has been put to a witness, or that an offer of irrelevant evidence has been made in the hearing of the jury; it must appear that the answer given to the question or the evidence received under the offer tended to prejudice the appellant’s case. This is the general rule, but it is not so fixed and unvarying as to prevent the appellant from assigning for error and the appellate court from reviewing a ruling against his objection and exception whereby wholly foreign and irrelevant matter, manifestly tending to mislead the jury to his prejudice, was got before them under the guise of cross-examination or an offer of evidence. In the recent case of Wagner v. Hazle Township, 215 Pa. 219, an offer of testimony was made with the intention to bring before the jury an irrelevant fact. In reversing the judgment Justice Mestrezat said: “When an attorney in the trial of a cause willfully and intentionally makes an offer of wholly irrelevant and incompetent evidence, or makes improper statements as to the facts in his address to the jury, clearly unsupported by any evidence, which are prejudicial and harmful to the opposite party, it is the plain duty of the trial judge, of his own motion, to act promptly and effectively by reprimanding counsel and withdrawing a juror and continuing the cause at the costs of the client. In no other way can justice be administered and the rights of the injured party be protected.” This ruling was followed and applied, in Saxton v. Pittsburg Railways Co., 219 Pa. 492, and the principle is applicable here. As plainly as actions could, the assistant district , attorney conveyed the impression that he was reading, no doubt correctly, from the charge of Judge Pennypacker in the case of Com. v. Bass and O’Neil. This is brought out very clearly in the fourth assignment of error, wherein it appears that under objection and exception he was permitted to ask the following question: “I show you the record, February 28th, 1900, 'Verdict of not guilty as to Bass and O’Neil.’ State whether or not that verdict was not rendered under the instructions from Judge Pennypacker, when he instructed them, as I have read, that you were not to be believed under any circumstances and a verdict of not guilty should be rendered.” The harm was done as soon as the questions were asked with the sanction of the court. The prejudicial error consists in this, not that the counsel did not read correctly from, the charge in the Bass and O’Neil case, but that the commonwealth was permitted by this mode of cross-examination to bring before the jury in an indirect way the animadversions on the defendant’s character and conduct made by another judge in his charge to the jury in another case. The error is not technical but substantial, and requires a reversal of the judgment. The third and fourth assignments are sustained.

Under assignments six to seventeen, inclusive, the appellant’s counsel argues the question of the admissibility, in the presentation of the commonwealth’s case in chief, of certain portions of the testimony given by the appellant when under cross-examination at the hearing before the magistrate of the desertion and nonsupport proceeding against Abrams. Neither the disconnected extracts from the official report of the trial printed in the appellant’s paper-book nor the record sent up to this court, shows that this specific question was distinctly raised in the court below. Going to the original record, we find that one of the court stenographers was present at the hearing before the magistrate and took stenographically the testimony the appellant gave at that hearing; that he had his stenographic notes transcribed by typewriting in longhand, he dictating to the typewriter from his notes and carefully comparing them with the copy; that some months afterwards he destroyed his stenographic notes, they not having been taken officially; and that he was able to testify and did testify, having the typewritten transcript of the testimony before him, as follows: “ Q. Does the testimony that you have identified represent actually what she swore to under oath and all that she swore to? Q. The words that came from her mouth? A. Yes, sir.” He further testified that independently of his transcribed notes, he had a recollection of some of the matters testified to but not as to all. Having laid these grounds, the assistant district attorney proposed, for the purpose of saving time, that the transcript be admitted and incorporated in the official report of the trial, without reading it at length, as the witness’s answer to this question: “Will you kindly tell me, refreshing your recollection by the notes of testimony that you took and transcribed, what this woman swore to at the hearing?” At first this was assented to by the defendant’s counsel, but after some further cross-examination he withdrew his assent and objected upon the ground that the notes and the transcript had not been properly compared and that the witness had no knowledge outside the notes. Thereupon, the assistant district attorney renewed his question and directed the witness to answer by reading from the transcript. To this the defendant objected without giving any other reasons than those above mentioned. The court overruled the objection, and the defendant excepted. This is the only exception taken to the ruling permitting the witness to testify in the manner he did. No exception was taken, and no objection was raised when he came to the testimony given on cross-examination. The trial judgé was warranted in assuming that the defendant raised no specific objection to that part of the testimony which would not apply to the whole of the testimony. In short, the objections that were made were not valid, and the objection now urged was not raised at the proper time, namely, when the particular parts of the cross-examination assigned for error were read. It is a proper case, for the application of the general rule that when a party, opposing the admission of evidence, enumerates his objections, all that are not enumerated are waived: Lovett v. Mathews, 24 Pa. 330; Messmore v. Morrison, 172 Pa. 300; Danley v. Danley, 179 Pa. 170; O'Toole v. Post Printing, etc., Co., 179 Pa. 271; Gorman v. Bigler, 8 Pa. Superior Ct. 440; United Fruit Co. v. Bisese, 25 Pa. Superior Ct. 170. The case is very much like the offer of a deposition, concerning which it has been frequently held, that if any part of the deposition is legal evidence, the party opposing its admission ought to point out the objectionable parts so that the other party may withdraw them or the court may exclude them, and that if he does not point them out the admission of the deposition over a general objection is not reversible error: Anderson v. Neff, 11 S. & R. 208; Martin v. Kline, 157 Pa. 473. These, like other general rules, may be liable to exceptions. There may be cases where the matter objected to will be so directly and manifestly opposed to every principle of justice that the waiver of particular objections would not be implied, Anderson v. Porter, supra, but this is not such a case. In addition to the foregoing reasons, it should be stated that the assignments of error one to seventeen do not conform to our rules. They are all overruled.

In order to prove the testimony a witness gave in the hearing before the magistrate of the case of Com. v. Abrams, there should have been preliminary proof that he was beyond the jurisdiction of the court or for other reasons could not be produced. It is stated, in appellant’s brief of argument, that such preliminary proof was given, but it is not printed in connection with the assignments eighteen to twenty-one, or anywhere else in the paper-book. The order of court, permitting the appellant to print in her paper-book only such portions of the transcript of testimony as in the judgment of her counsel were material in the consideration of the exceptions and the assignments of error, did not relieve her from the duty of printing such portions of the testimony as manifestly were absolutely essential in such consideration. There is no room for difference of opinion upon the proposition that in determining the question whether there was reversible error in the rulings complained of in these four assignments, it is absolutely essential that the appellate court have before it the preliminary testimony above referred to, and at least the substance of the testimony proposed to be given. It is not supposable that the learned counsel for the appellant judged otherwise. We therefore dismiss these assignments without discussing the question argued by counsel.

In the twenty-second'assignment complaint is made of the following action of the court: The defendant’s counsel, for the purpose of identification, exhibited to Abrams, when under cross-examination, certain letters purporting to bear his signature, and before they had been offered in evidence, the court, at the request of the assistant district attorney and against the protest and objection of the defendant’s counsel, impounded them in order that the commonwealth’s expert might examine them. Whether or not this action of the court before the letters had been offered in evidence was strictly regular, particularly in view of the offer of the defendant’s counsel to show them to any expert and his undertaking to offer them in evidence at the proper time, need not be discussed. Be that as it may, it has not been made clear that the action was harmful to the defendant’s case. It was not as if the. commonwealth, had obtained the letters in this mode and then offered them in evidence against her. It was her intention to offer them in evidence at the proper time, and she did so. The suggestion that the constitutional right of the defendant not to be required to give evidence against herself, is without foundation. The assignment is overruled.

In the recent case of Com. v. Racco, 225 Pa. 113, it was held that where the accused takes the stand on his own behalf, he may be asked on cross-examination, in order to test his credibility, whether he had not been convicted and sent to prison for other criminal offenses; and if he answers no, it may be shown by other witnesses, for the purpose of contradicting him and impeaching his credibility, that he had made declarations to the effect that he had been convicted and sentenced for such crimes. In the same case the court said: “ In Buck v. Com., 107 Pa. 486, the question asked the witness was held to have been improper because if he had been convicted of embezzlement, the proper evidence of that fact was the printed record. We do not now approve what was there said, and, if it is to be regarded as an expression of the law, it is overruled.” It follows that there was no error in permitting the defendant to be asked on cross-examination as to her prior conviction of other criminal offenses. The twenty-third and twenty-fourth assignments are overruled.

It is not easy to see how the mere prior arrest of a witness upon a criminal charge can affect his credibility; and in Stout v. Rassel, 2 Yeates, 334, it was held that the credit of the witness is not to be impeached by charges of particular offenses of which he has not been convicted. The questions put to the defendant upon cross-examination, which are quoted in the twenty-seventh, twenty-eight, twenty-ninth and thirty-second assignments, were all doubtful of propriety, but as it does not appear that any evidence was adduced in answer thereto which was prejudicial to her, the assignments are not sustained.

The limits of cross-examination of a defendant, in a criminal case, who offers himself as a witness are largely within the discretion of the trial judge, and unless that discretion was so abused that substantial injury has resulted to the accused, the judgment will not be reversed: Com. v. Racco, supra. As already pointed out, we are of opinion that the limits of proper cross-examination were transgressed to the injury of the defendant in the matters complained of in the third and fourth assignments, but viewing in the light of the above principle the questions propounded to the defendant, which are quoted in the twenty-fifth, twenty-sixth, thirtieth, thirty-first and thirty-third assignments, we cannot say that there was reversible error in overruling the objections.

It is admitted that the learned judge was mistaken in saying in that portion of his charge, which is the subject of the thirty-fourth assignment, that the statement in the action against the traction company was sworn to, but the error was probably cured by the remark of the assistant district attorney to the learned trial judge in the presence of the jury with regard to that matter. If the instructions in the first part of this assignment of error were all that had been given, they would have had a tendency to mislead as to the true nature of the issue, the burden of proof and the quality of proof required of the commonwealth. But taken in connection with other portions of the charge, we cannot say that they were misleading.

The remaining assignments of error do not require particular discussion. We are of opinion that the answers of the learned judge to the question propounded by the jury, and to the first and eighth points presented by the defendant’s counsel, were proper.

The judgment is reversed, and venire facias de novo awarded.


author: Beaver, J.,

text:
    Simpson v. Carroll, Appellant.

      Appeals — Assignments of error — Points and answers.

    1. When an assignment of error is to an answer to a point both the point and the answer must be set forth in the assignment.
    2. An assignment of error relating to the charge of the court is improper if it assigns a portion of the charge relating to a distinct subject, but does not give the entire portion of the charge relating to that subject.
    Argued Oct. 8, 1909.
    Appeal, No. 4, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1903, No. 2,176, on verdict for plaintiffs in case of J. Wallace Simpson, who survives the late Lewis P. Simpson, and J. Wallace Simpson, trading as L. P. Simpson & Son, v. William H. Carroll.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover broker’s commissions. Before Will-son, P. J.
    Verdict and judgment for plaintiffs for $712.88. Defendant appealed.

      Errors assigned were in the following form:
    1. The learned judge in the court below erred in not affirming the defendant’s fourth point.
    2. The learned judge in the court below erred in not affirming the defendant’s fifth point.
    3. The learned judge in the court below erred when he said to the jury in his charge (p. 61): “It does not make any difference, in my judgment, whether there was any good reason why the defendant should have been willing to give a bond and not a mortgage. There might have been some reason arising out of his own experience, or perhaps out of some false impression as to what the advantage or disadvantage of a bond, as compared with a mortgage, would be. That for some reason or other the trust company did not want to take a bond and preferred a mortgage appears evidently from the evidence. There might have been an equally good reason why the defendant did not want to give a mortgage and preferred to give a bond. I do not know whether there was or not; but that does not make any difference in my judgment.”
    December 13, 1909:

      William H. R. Lukens, for appellant.

      John Weaver, for appellees.
   Opinion by

Beaver, J.,

The plaintiffs sought to recover from the defendant a broker’s commission of two per cent for securing a loan upon certain mortgages which were to be given as security therefor. The evidence showed that the plaintiffs secured an agreement on the part of the Tradesmen’s Trust Company to make the loan desired, provided additional security were given therefor. It was claimed on the part of the plaintiffs that that additional security was a mortgage upon certain property in Atlantic City. The defendant claimed that the additional security which he agreed to give was a general bond. This seemed to be the material question of difference between the parties.

There are three assignments of error. The first is: “The learned judge in the court below erred in not affirming the defendant’s fourth point.” The second: “The learned judge in the court below erred in not affirming the defendant’s fifth point.” These assignments are not in accordance with our fifteenth rule, which requires that: “When the error assigned is to the charge of the court, or to answers to points, or to findings of fact or law, the part of the charge, or the points and answers, or findings referred to must be quoted totidem verbis in the assignment.” We have neither the points nor the answers quoted in these assignments, which are, therefore, fatally defective. They are, therefore, as required in our sixteenth rule, disregarded.

The third assignment relates to the charge of the court. It assigns a portion of the charge relating to a distinct subjeet but does not give the entire portion of the charge relating to that subject. Indeed the portion of the charge assigned stops at a point therein which fails to give all that the judge said upon the subject. What was said subsequently was a practical and satisfactory explanation of what is objected to by the defendant.

The judge said, as assigned for error in the defendant’s third assignment: “It does not make any difference, in my judgment, whether there was any good reason why the defendant should have been willing to give a bond and not a mortgage. There might have been some reason arising out of his own experience, or perhaps out of some false impression as to what the advantage or disadvantage of a bond as compared with a mortgage would be. That for some reason or other the trust company did not want to take a bond, and preferred a mortgage appears evidently from the evidence. There might have been an equally good reason why the defendant did not want to give a mortgage and preferred to give a bond. I do know whether there was or not. But that does not make any difference in my judgment.” Here the assignment ends. The court in its charge goes on to say: “If, in point of fact, the arrangement between the two men was that the defendant should give what has been called a general bond, and he refused and declined or did not agree to give a mortgage, and the plaintiff was not able to arrange to borrow the money by the giving of a bond, then the plaintiff is not entitled to a verdict. But,, if you determine that he did agree to give a mortgage, if the plaintiff was authorized to state that to the Tradesmen’s Trust Company as a part of the arrangement under which they were to lend the money, and they agreed to lend the money, and the defendant had agreed to pay the two per cent commission, then the plaintiff is entitled to a verdict in his favor, and just as you settle that question your verdict should be.”

This makes it clear that what the court said to the jury, taking it as a whole, was entirely proper, and that the only question submitted to them was whether the defendant agreed to give a mortgage, as requested by the party secured by the plaintiffs to make a loan on the defendant’s securities, or the defendant offered instead of a mortgage a general bond and refused to give the mortgage required, and further that the defendant had agreed to pay the two per cent commission, as claimed by the plaintiffs. This was a fair and full submission of the entire point at issue to the jury, and, in view of what followed, the part of the charge contained in the third assignment of error was entirely proper. The reasons which may have influenced the plaintiffs or the trust company with which they negotiated in requiring a mortgage and those which influenced the defendant in refusing to give a mortgage but agreeing to give a general bond, as the court intimated, made no real difference. We are not, nor was the court below, concerned with the mental states or the' reasons influencing the parties negotiating for this loan. The real question was, Did the defendant agree to give a mortgage, as required by the trust company with which the plaintiffs negotiated? If he did, he was bound to carry out the agreement, and the commission claimed by the plaintiffs was earned.

The third assignment of error might also be well disregarded, because it assigns but a portion of the charge relating to the subject under discussion and omits what is essential to an understanding of what the court actually submitted to the jury. We prefer, however, to supplement the assignment by what the court did say in regard to the subject, and to affirm the judgment because the charge was full, clear and adequate and in no way unfairly affected the defendant.

Judgment affirmed.


text:
    Simpson v. Kerkeslager, Appellant.

      Bankruptcy — Receiver—Insurance—Payment of premiums — Mistake as to title — Personal liability of receiver.

    Where a receiver of a bankrupt firm is orally directed by the referee at a creditors’ meeting to insure certain real estate, and he complies with this request by placing the insurance with an insurance agent who is personally present at the meeting, and it turns out after the expiration of some time, and after the agent had paid over the premiums out of his own pocket to his company, that the building insured was not the property of the bankrupt, the receiver will be personally responsible to the insurance agent for the premiums paid by the latter.
    Argued Oct. 13, 1909.
    Appeal, No. 140, Oct. T. 1909, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1908, No. 2,445, making absolute rule for judgment for want of a sufficient affidavit of defense in case of B. Mitchell Simpson et al., trading as William A. Simpson & Son, v. Milton W. Kerkeslager.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit against a receiver in bankruptcy to hold him personally liable for premiums paid for insurance of real estate. Before Ferguson, J.
    The affidavit of defense averred that on October 20, 1907, he was appointed receiver of the bankrupt firm of Isaac Wilde and George Daymon, trading as Robert Wilde’s Son.
    That at the time of the first meeting of said creditors as aforesaid, and until July, 1908, the building and machinery contained therein and insured by said.plaintiff was commonly believed to be the property of the bankrupt estate, such belief having been based upon the following statement, as it appeared in the books of the said bankrupt estate:
    “May 1, 1905.
    “Isaac Wilde and George C. Daymon, trading as Robert Wilde’s Son, commenced business this day for the manufacture and sale of Carpet Yarns at Leverington avenue and Wilde St., Manayunk, Philadelphia.
    “All profits and losses to be equally divided between them.

      “Inventory at the commencement of business as follows:
    Cash as per Cash Book.................... $ 673.37
    Real Estate as per Ledger................. 21,000.00
    Machinery — Personal Property............ 10,000.00
    Merchandise on Hand.................... 8,685.55
    Book Accounts.......................... 2,665.09
    Mortgages............................... 21,500.00
    Book Accounts......-.................... 47,786.99”
    It also appeared by “Schedule B, Statement of all Property of the Bankrupt,” forming part of debtors’ schedule, which was signed and sworn to by said George C. Daymon, and filed in the district court aforesaid, the said real estate and machinery contained therein was declared to be the property of said bankrupt estate. A true copy of said schedule, marked exhibit “A,” is hereto annexed and made part hereof.
    That after several meetings of the creditors of said bankrupt estate, at all of which considerable testimony was presented for the purpose of ascertaining the ownership of the real estate in question, the learned referee, Honorable Alfred Driver, on February 8, 1908, decided that said real estate was owned by Isaac Wilde individually and not by said bankrupt estate. Upon a petition to review the findings of said referee, filed by Brown Brothers, a creditor of said bankrupt estate, the district court in an opinion filed by Honorable Judge Holland on July 8,1908, confirmed the referee’s order in the following:
    Your petitioner is advised and believes and therefore avers that, in view of the aforesaid entry or statement made in the books of said- bankrupt estate and of the sworn statement appearing in schedule B hereinbefore mentioned, it was his duty as receiver as aforesaid, to regard said real estate as the property of the bankrupt estate, until the ownership -thereof had been judicially determined, and it was his duty in the exercise of his sound judgment to protect said real estate from loss by fire for the benefit of the creditors of said bankrupt estate.
    Defendant denies that the bankrupt estate of Isaac Wilde and George C. Daymon, trading as Robert Wilde’s Son, for which estate the said defendant was and is receiver, was devoid of assets with which to pay the claim for which the suit was brought, but on the contrary, he received the sum of $900 from the sale of a lot of carpet waste, and on November 7, 1908, he filed his account of said sum in the said district court of the United States, which account is and has, since that time, been before the said referee, Alfred Driver, for audit.
    Deponent avers that William M. Simpson, one of the above-named plaintiffs, was present at the first meeting of the creditors of Isaac Wilde and George C. Daymon, trading as Robert Wilde’s Son, bankrupt, above particularly mentioned, and subsequently, about a week thereafter, called upon the said receiver to solicit an order for the fire insurance that was required, and to ascertain the manner in- which said policies should be written, so that he had full knowledge of the fact that Milton W. Kerkeslager was appointed receiver and trustee of the said bankrupt’s estate.
    That as receiver of said bankrupt estate, your deponent, believing it to be his duty to preserve the said bankrupt estate and protect the interests of the creditors thereof, and acting under the express oral direction of the referee, Honorable Alfred Driver, ordered and requested said plaintiff to place fire insurance upon the building and the machinery contained therein, situate on the southwest corner of Leverington avenue and Wilde street, as aforesaid, said insurance policies to be in the name of “Milton W. Kerkeslager, Receiver, Owner.”
    That pursuant to said order and request, all the policies mentioned in said plaintiff’s statement of claim were written and delivered by said plaintiff to said receiver in the name of said “Milton W. Kerkeslager, Receiver, Owner,” and the premiums therefor were charged to said receiver.
    The court made absolute-rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      December 13, 1909:

      Daniel A, Stewart, for appellant.
    The doctrine of principal and agent has no application. A receiver is the agent of no one. He is an officer of the court appointing him, and is clothed with all the power and responsibility fitting such an appointment: Schwartz v. Oil Co., 153 Pa. 283; Walker v. Morris, 14 Ga. 323; Henry v. Kaufman, 24 Md. 1; Com. v. Young, 11 Phila. 606.
    If the lower, court is sustained, it is submitted that the risk of anyone acting in a fiduciary capacity would be extremely great, as his individual liability would be subject to attack upon the slightest provocation, and especially so where the estate of the decedent, ward, debtor, etc., ultimately proved to be insolvent.

      Frederick A. Sobernheimer, for appellees.
    The doctrine of “Principal and Agent” need not be “assumed” to be applicable to this case;, it is applicable: Kroeger v. Pitcairn, 101 Pa. 311; Wolff v. Wilson, 28 Pa. Superior Ct. 511.
    A receiver is liable to any person who sustains loss by reason of the receiver’s negligence or misconduct with reference to the receivership property: McCay v. Black, 14 Phila. 635.
   Opinion by

Beaver, J.,

Assuming as facts the allegations of the defendant’s affidavit of defense, the referee in bankruptcy directed the defendant, the receiver and trustee of the bankrupt estate of Isaac Wilde and George Daymon, copartners, trading as Robert Wilde’s Son, to secure fire insurance upon certain real estate described in the schedule of the bankrupt estate, and' that,.in pursuance of said direction, the defendant, as receiver of the said bankrupt estate, ordered and requested the plaintiffs to place fire insurance upon the building and the machinery contained therein, situate on the southwest corner of Leverington avenue and Wilde street as aforesaid, said insurance policies to be in the name of Milton W. Kerkeslager, receiver, owner. That, at the meeting of the creditors of the bankrupt firm, one of the plaintiffs was present and “had full knowledge of the fact that Milton W. Kerkeslager was appointed receiver and trustee of the said bankrupt’s. estate.” "That, pursuant to said order and request, all the policies mentioned in said plaintiff’s statement of claim were written and delivered by said plaintiff to said receiver in the name of the said 'Milton W. Kerkeslager, receiver, owner,’ and the premiums therefor were charged to said receiver, as appears by statement received by said receiver from said plaintiff.” “That, at the time said fire insurance policies were written, placed or delivered, he (the receiver) had no insurable interest in the said building and the machinery contained therein, situate on the southwest corner of Leverington avenue and Wilde street, as aforesaid, nor did he acquire any insurable interest in said insured premises during the life of said several policies.”

The claim is, therefore, made that the plaintiffs’ claim, as set forth in said statement of claim, is upon Milton Kerkeslager, receiver of the bankrupt estate of Robert Wilde’s Son as aforesaid, and not upon the defendant as an individual.

Assuming that the referee in bankruptcy, the trustee and receiver of the bankrupt estate, and the plaintiffs were all in error as to the ownership of the property insured, it is clearly apparent from the affidavit of defense that the defendant allowed the policies to remain in full force during the period for which they were written. It does not appear from the affidavit of defense when the defendant discovered that he had no insurable interest in the property insured; in other words, that the title to the said property had not been in the bankrupt estate prior to the adjudication in bankruptcy. It would seem, however, from the absence of- any allegation to the contrary, that he had not apprised the plaintiffs of his lack of insurable interest prior to the bringing of this suit, or at least until after the policies of insurance had expired, nor is there any denial on his part that the plaintiffs, as alleged in their statement, had paid over the amount of the insurance, less their commissions, to the companies entitled to receive the same, in accordance with the bills rendered. The practical question, therefore, is, Upon whom shall the loss for the payment of the insurance fall — upon the plaintiffs who were ordered and directed to place said insurance by the defendant, or upon the defendant who gave the direction?

In Kroeger v. Pitcairn, 101 Pa. 311, Mr. Justice Sterrett, after stating the facts of the case, in which the plaintiff who had received a policy of insurance from the defendant, as agent, representing an insurance company, in and by which the plaintiff was allowed to keep in stock a certain amount of carbon oil and after the loss of his property it was discovered that such permission was not given by the policy or allowed by the company and an attempt was made to recover the amount of the insurance from the agent, says: “Why should not the defendant be personally responsible, in like manner, for the consequences, if he, assuming to act for the company, overstepped the boundary of his authority and thereby misled the plaintiff to his injury, whether intentionally or not? The only difference is that in the latter the authority is self-assumed, while in the former (that is in the case of a president or other officer of the company) it is actual; but that cannot be urged as a sufficient reason why plaintiff, who is blameless in both cases, should bear the loss in one and not in the other. As a general rule, 'whenever a party undertakes to do any act as the agent of another, if he does not possess any authority from the principal therefor, or if he exceeds the authority delegated to him, he will be personally liable to the person with whom he is dealing for or on account of his principalStory on Agency, 264. The same principle is recognized in Evans on Agency, *301; Whart. on Agency, 524; 2 Smith’s Lead. Cases, 380, note; 1 Pars, on Cont. 67, and in numerous adjudicated cases, among which are: Hampton v. Speckenagle, 9 S. & R. 212, 222; Layng v. Stewart, 1 W. & S. 222, 226; McConn v. Lady, 10 W. N. C. 493; Jefts v. York, 64 Mass. 392; Baltzen v. Nicolay, 53 N. Y. 467. In the latter case, it is said, the reason why an agent is liable in damages to the person with whom he contracts, when he exceeds the authority, is that the party dealing with him is deprived of any remedy upon the contract against the principal. The contract, though in form that of the principal, is not his in fact, and it is but just that the loss, occasioned by there being no valid contract with him, should be borne by the agent who contracted for him without authority. In Layng v. Stewart, 1 W. & S. 222, Mr. Justice Huston says:' It is not worth while to be learned on very plain matters. The cases cited show that, if an agent goes beyond his authority and employs a person, his principal is not bound, and in such case the agent is bound.’ The plaintiff in error, in McConn v. Lady, 10 W. N. C. 493, made a contract, believing he had authority to do so, and not intending to bind himself personally. The jury found he had no authority to make the contract as agent, and this court, in affirming the judgment, said: ‘It was a question of- fact submitted to the jury, whether the plaintiff in error had authority from the school board to make the contract as their agent. They found he had not. He was personally liable whether he made the contract in his own name or in the name of his alleged principal. It is a mistake-to suppose that the only remedy was an action against him for the wrong. The party can elect to treat the agent as a principal in the contract.’ ”

Applying the principles here sot forth, it seems to us that the defendant was liable to the plaintiffs. He believed that he had the authority to make the contract for insurance, as receiver of the bankrupt firm. He had no authority, because, as appears in his affidavit, he had no insurable interest, that is, as we understand it, the bankrupt firm for which he was receiver had no title to the property. It was doubtless his duty to ascertain just what he had to insure. He cannot visit the effects of his failure to do so upon the plaintiffs, upon whom no such obligation rested. To the same effect is Wolff v. Wilson, 28 Pa. Superior Ct. 511. See also Hopkins v. Everly, 150 Pa. 117.

The defendant seeks to shelter himself behind the direction of the referee in bankruptcy, but we cannot assent to the proposition that the plaintiffs are to suffer loss because the receiver failed to discharge his duty in ascertaining whether or not there was an insurable interest in the bankrupt estate which had been transferred to him, which he was under obligation to protect.

As between the plaintiffs and the defendant, the loss, if any, should fall upon the defendant, who, although guilty of no fraud or intentional misrepresentation, has, nevertheless, by his failure to ascertain what his rights and duties were, caused it.

Judgment affirmed.


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    Rementer v. Philadelphia, Appellant
    (No. 1).

      Negligence — Municipalities—Sewer inlet — Contributory negligence— Pushing baby carriage in street.

    In an action by a woman against a city to recover damages for personal injuries occasioned by a break in the corner of a sewer inlet into which she fell while crossing a street, the plaintiff cannot be charged with contributory negligence as a matter of law, because, at the time of the accident, she was pushing before her a baby carriage with a canopy, which obstructed her view of the break in the street.
    Argued Oct. 19, 1909.
    Appeal, No. 89, Oct. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1906, No. 572, on verdict for plaintiffs in case of John D. Rementer and Elizabeth S., his wife, v. City of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Brégy, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for John D. Rementer for $500, and for Elizabeth S. Rementer for $300. Defendant appealed.

      Errors assigned were (1) refusal of binding instructions for defendant, and (2) dismissing motion for judgment non obstante veredicto.

      Harry T. Kingston, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellant.
    The plaintiffs were guilty of contributory negligence and the same should have been so decided by the court as a question of law: Robb v. Connellsville Boro., 137 Pa. 42; Easton v. Philadelphia, 26 Pa. Superior Ct. 517; Lerner v. Philadelphia, 221 Pa. 294.
    December 20, 1909:

      Francis G. Gallagher, for appellees.
   Opinion by

Beaver, J.,

In the court below, two verdicts and. two judgments thereon were entered in the same suit, one in behalf of the husband of the wife who was injured, as claimed, by the negligence of the defendant, and the other in behalf of the wife. An appeal was taken from each of these judgments, but they were argued together.

The plaintiffs claimed damages for an injury occasioned by a defect or break in the cover of a sewer inlet. The court refused the defendant’s point that “Under all the evidence in the case, the verdict must be for the defendant,” and also refused judgment non obstante veredicto upon motion, after the jury had returned verdicts for the plaintiffs. The court’s refusal of the defendant’s request for binding instructions, and the denial of the motion for judgment non obstante veredicto constitute the only assignments of error.

The point was based upon the contributory negligence, as a matter of law, of the plaintiff’s wife. The court left the question, under plain and clear instructions, to the jury. These instructions were very simple and were so full and clear that the jury could not have been misled in regard to them. The testimony was somewhat conflicting and was of such a character that we think the court was entirely justified in submitting the question to the jury for their finding. The negligence of the defendant is not to be presumed in the trial of a case such as this, no more is the plaintiff to presume negligence on the part of the defendant, when using the streets of the city. It is true that she was to observe ordinary care in the use of the street, but such care does not prevent her from using the customary appliances for the care of a child. It is not alleged, as we un-' derstand it, that there was anything unusual in the form, fashion or make-up of the baby carriage in which her child was conveyed. When she reached the curb, the carriage with her infant in it was successfully lifted upon the sidewalk, and she, in attempting to follow, stepped into the opening, said by the plaintiffs’ witnesses to be ten inches across, and was injured. The defendant claims that the use of the baby carriage, having a canopy which protected the child from the sun, was such an obstruction the use of which constituted in itself contributory negligence. We do not think so. We think the trial judge fairly covered the attitude incumbent upon the plaintiff, when he said:

“A man must exercise the care that a person off ordinary prudence would under like circumstances. And when you come to a woman pushing a baby coach, that is the test that you must measure her by. She must remember that she is not walking without anything in front of her. In other words, she must remember that she is pushing a baby coach, that to an extent obscures her view. A woman has a perfect right to use the streets in running a baby coach, and it would be ridiculous to say that persons must look underneath the baby coach or keep their eyes down all the time when they are pushing a baby coach. You must apply your common sense to that proposition and say how would a person of ordinary prudence push a baby coach? They ought to keep an eye in front of them, taking in their scope of vision a certain distance in front of them and a certain distance each side, keeping their eye on it as they go along. That is what they ought to do. They ought to make a closer inspection than the man or woman who does not have a baby coach in front of them, because a baby coach does obscure your view. Taking that, did this woman do that? If she did not, then she is guilty of contributory negligence. As I understand her, that is what she says she did do.”

In Strader v. Monroe, 202 Pa. 626, the plaintiff was injured in crossing a bridge upon a bicycle behind her son, whose person and bicycle prevented her from seeing a misplaced plank against which her bicycle struck, causing her to fall over the side of the bridge. The situation and testimony were somewhat as they are here and, in the opinion disposing of the case, Mr. Justice Dean says: “As to her alleged contributory negligence, there was some evidence to sustain the charge, but it was not of that undisputed character, as appellant argues, to warrant the court in withdrawing it from the jury.”

The cases upon which the appellant relies, Robb v. Connellsville Borough, 137 Pa. 42; Easton v. Philadelphia, 26 Pa. Superior Ct. 517, and Lerner v. City of Philadelphia, 221 Pa. 294, do not seem to us to be strictly in point, because of the fact that they all relate to conditions which were not present here. They do not have in them the presence of the baby coach or anything similar thereto. In the case last mentioned, Mr. Justice Stewart says: “When the accident occurs in broad daylight, in consequence of an open and exposed defect in the sidewalk, the burden rests upon the party complaining to show conditions outside of himself which prevented him seeing the defect, or which would excuse his failure to observe it. If such conditions exist, there is excuse for walking by faith. When they do not exist, the law charges the party with failure to do what was required of him.”

As already intimated, the plaintiff had the right to presume, in crossing the street, that it was in good condition, or, as Mr. Justice Stewart expresses it, having her baby coach in front of her, she could walk by faith, at least to the extent that faith must necessarily, by reason of the presence of her baby ‘ carriage, have taken, to some extent, the place of sight.

As we read the evidence, under all the authorities as we understand them, the case was for the jury. As to the manner in which it was submitted, there is not, as there could not well be, any exception.

Judgment affirmed.

Morrison and Porter, JJ., dissent.


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    Rementer v. Philadelphia, Appellant
    (No. 2).
    December 20, 1909:
   Opinion by

Beaver, J.,

The judgment in this case was entered upon a verdict rendered by the jury in the same case in which a verdict was rendered and judgment entered for the husband. In that case an opinion has this day been filed (ante, p. 354) and, for the reasons therein stated, the judgment here is likewise affirmed.

Judgment affirmed.

Morrison and Porter, JJ., dissent.


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    Pennsylvania Company for Insurance on Lives and Granting Annuities, Appellant, v. Bruner.

      Exemption — Debtor’s exemption — Appeal bond — Mortgage—Act of April 9, 1849, P. L. 533.
    1. An appeal bond is subsidiary to the judgment appealed from, and the question whether or not the exemption allowed by the Act of April 9,1849, sec. 1, P. L. 533, can be claimed on an execution upon the judgment in an action upon the bond is to be decided with regard to the nature of the original action.
    2. If the original action sounded in tort and the defendant was not entitled to his exemption therein, then he and his surety cannot claim the exemption in an action on the appeal bond; whereas if the original action sounded in contract and the defendant would have been entitled to claim the exemption therein, that right still remains in an action on the appeal bond, unless such right has been lost through fraud, deception or other reasons recognized as sufficient in law, and even then the right of the surety would not be affected, unless he were a party to the fault.
    3. Where the original suit is upon a mortgage the surety upon the appeal bond is not entitled to the debtor's exemption.
    Argued Oct. 15, 1909.
    Appeal, No. 180, Oct. T., 1909, by plaintiff, from order of C. P. No. 2, Phila. Co., June T,, 1875, No. 1,030, making absolute rule for allowance of debtor’s exemption in case of The Pennsylvania Company for Insurance on Lives and Granting Annuities, Trustee under the Will of William H. Gregg, deceased, v. Henry Naglee Bruner et al., Heirs at Law of Henry Naglee Bruner, deceased.
    December 20, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit upon an appeal bond.
    Rule for debtor’s exemption out of a fund raised by a sale under a judgment on an appeal bond.
    The opinion of the Superior Court states the case.

      Error assigned was in making absolute the rule allowing the exemption.

      E. Spencer Miller, with him Maurise G. Belknap, J. Gran-ville Leach, for appellant.

    A recognizance of bail in error, is not a contract within the terms of the act of April 9, 1849: Com. v. Whiteside, 1 Lanc. Bar, 17; Com. v. Dougherty, 8 Phila. 366; Edwards v. Withrow, 6 Pa. C. C. Rep. 13; Pierce v. Lewis, 9 Pa. C. C. Rep. 250; Ellsworth v. Barstow, 7 Watts, 314; Katch v. Coal Co., 19 Pa. Superior Ct. 476; Com. to use v. Savage, 30 Pa. Superior Ct. 364.
    Since the heirs of H. Naglee Bruner were neither debtors nor defendants, they were not entitled to exemption: Eberhart’s App., 39 Pa. 509.

      A. J. H. Frank, for appellees.
   Opinion by

Beaver, J.,

The original suit, from the judgment in which an appeal was taken, and the recognizance upon which the present suit is founded was given, was a sci. fa. sur mortgage. Upon an appeal to the Supreme Court a recognizance was given, upon which the defendants in this case, or those whom they legally represent, were the- sureties. A judgment upon the Recognizance was duly obtained against the defendants and, upon an execution thereon, an application was made to the court below for the benefit of the Act of April 9, 1849, P. L. 533, claiming the exemption of $300 for each of the recognizors or. the representatives of one deceased. Appraisers were duly-appointed who reported in the case of each application that the property levied upon, by virtue of the writ of fieri facias then in the hands of the sheriff, could not “be divided, without injury to or spoiling the whole, and therefore determining against a division of the said real estate, and valuing the same at the sum of forty-seven thousand dollars.” Upon the sale of the property, the court allowed the exemption of $300 to each .of the living recognizors and $100 each to three of the heirs of the third who was deceased, the final decree being “And now, to wit, July 6, Í909, the court order and direct the rule to show cause why the claimants should not be allowed exemption claims out of the proceeds of the sheriff’s sale, be made absolute.”

It was held in Ramsdell v. Seybert, 14 Pa. D. R. 247, in a carefully considered opinion by Judge Von Moschzisker that, “An appeal bond is subsidiary to the judgment appealed from, and the question whether or not the exemption allowed by the Act of April 9, 1849, sec. 1, P. L. 533, can be claimed on an execution upon the judgment in an action upon the bond is to be decided with regard to the nature of the original action.

“If the original action sounded in tort and the defendant was not entitled to his exemption therein, then he and his surety cannot claim the exemption in an action on the appeal bond; whereas, if the original action sounded in contract and the defendant would have been entitled to claim the exemption therein, that right still remains in an action on the appeal bond, unless such right has been lost through fraud, deception or other reasons recognized as sufficient in law, and even then the right of the surety would not be affected, unless he were a party to the fault.”

Applying the principle here set forth, which seems to us to be founded in reason as well as upon authority, the question for inquiry is, Were the defendants in the original judgment from which the appeal was taken to the Supreme Court and for which the recognizance or bond signed by the defendants was given, entitled to the exemption under the act? It is to be remembered that the original action was a scire facias upon a mortgage.

In Gang were’s App., 36 Pa. 466, it was definitely determined, settling what was theretofore a somewhat vexed question, that:

“The exemption law of 1849 does not apply to a debt secured by mortgage, so as to exempt any part of the mortgaged premises from sale, under proceedings on the mortgage, or the bond accompanying it, as against the mortgagee.

“That act is a limitation of the remedy given by the law against a debtor’s property; but does not interfere with such as arise out of the express contract of the parties. A mortgage is, in its nature, a contract waiver of the rights of exemption.”

In the opinion in this case, in which Mr. Justice Woodward speaks for the court, it is said: “The exemption law of 1849 is, by its own terms, inapplicable to mortgages given for purchase money of lands, and after several judicial intimations that it was not to be applied to any mortgage'debt however it arose, we declared in McAuley’s App., 35 Pa. 209, that such was the proper interpretation of the statute. The proceeding in that case was upon the bond accompanying the mortgage, and it was not, I believe, a mortgage for purchase money. The point ruled was, that the debt, because secured by mortgage, was not within the purview of the exemption statute. The opinion of the learned judge, in the case now before us, was in accordance with that ruling, and our duty would be performed by simply affirming the distribution he decreed.

“But counsel having addressed to us a very earnest argument to prove that the received construction of the statute is wrong, we will state more at large than has been done heretofore the reasons on which that construction rests.” Then follows an exhaustive discussion of the subject, upon which the conclusion is reached, “that no mortgages, neither purchase money mortgages nor others, were within the purview of the statute.” See also Peebles’s Est., Peebles’s App, 157 Pa. 605.

The defendants in the original suit upon the mortgage being, therefore, denied the benefits of the exemption laws, we are of the opinion that the bail upon the bond for the appeal to .the Supreme Court from the judgment entered therein were likewise not entitled to the benefit of the said act.

Inasmuch as this conclusion is fundamental and includes the entire question, it is unnecessary to consider the other grounds upon which the appellants claim that the decree of the court below was erroneous.

The decree making absolute the rule to show cause why the claimants should not be allowed the exemption claims out of the proceeds of the sheriff’s sale, is reversed and the record remitted to the court below, so that distribution of the funds in the hands of the sheriff may be made in accordance with this opinion. The costs of this appeal to be paid by the appellees.