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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) online

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stances, as show a ground of suspicion, not amounting to actual
proof of the plaintiff's guilt. If a person truly believes, although
mistaken in point of fact, that he has a good cause, and in a
moment of irritation and passion makes a criminal charge against
another, he is surely not as culpable as where the accusation is
made without any reason, either actual or supposed. The malice
is much greater in the one case than the other, and the party is
liable to be mulcted in damages to a much greater extent; for the

1 I) If the evidence forms a link in the chain of the proof of the truth of the
charge, it is inadmissible under the general issue : Porter v. Botkins, 9 Smith
484. ||

326



1836.] OF PENNSYLVANIA. 826

[Beehler v. Steever.]

actual injury which the plaintiff's character has suffered, is not the
only criterion of damages, but the jury may take into their esti-
mate the wickedness of the plaintiff in making an accusation against
his neighbor without any cause for suspicion. On the same prin-
ciple it has been decided, that a person may give in evidence that
another told what he related ; and this even when the slander is
spoken without reference to the informer. Kennedy v. Gregory, 1
Binn. 90. And in Morris v. Duane, in a note to 1 Binn. 90,
Chief Justice Tilghman, at Nisi Prius, permitted the defendant to
prove in an action for a libel, a writing purporting to be the copy
of an anonymous letter, which from certain marks on the back of it,
was inferred to have been in the possession of B. F. Bache, and
*upon his death to have come to the defendant, who sue- 0097
ceeded him as editor of the Aurora, in which the libel was -
published. " The effect (says the chief justice) of any evidence
which a defendant may offer is with the jury, the competency with
the court. The question in this case is, whether the defendant is
entitled to offer to the jury this letter, with the explanations for any
legal purpose connected with the cause. It certainly cannot be
offered to prove the plea of not guilty, and it is no legal justifica-
tion. But still is it not material ? Can it be that like damages
should be given against two defendants, one of whom received his
information from such sources as were entitled to a certain degree
of credit, while the other devised it of his own wicked imagina-
tion ? I think it cannot. Such evidence certainly goes to the
degree of malice, and must weigh with the jury according to the
circumstances which attended it. Whether these circumstances
are such as ought in reason to mitigate the damages, they will
determine." This was not a hasty decision of the chief justice,
and has been repeatedly recognised in subsequent cases. Its bear-
ing on this case is most obvious. The evidence was offered in
mitigation of damages, by showing the degree and extent of the
defendant's malice ; for it is some extenuation of his conduct when
we consider the occasion of his speaking the slanderous words, the
transaction to which he alluded, and of which he had so much
reason to complain ; the connection which Steever had with the
parties to it, and the share he had in the transaction ; the influence
he exerted in procuring the accommodation of Beehler for
McCaraher, and in acting in some measure as his general agent in
procuring accommodations for him. Nor can the same blame be
attached to him as if he had devised the charge without cause or
shadow of suspicion. Although there is no proof of the actual par-
ticipation of Steever in procuring the assignment, or of his agency
in inducing McCaraher, over whom Beehler naturally thought he
had some influence, to prefer his uncle and employer, for a debt
which was not particularly meritorious, in exclusion of Beehler

327



327 SUPREME CO CRT [Lee. Trrm,

fBeehler r. Steeyer.J

who was an endorser, and as such, usually preferred in such assign-
ment; yet there were circumstances connected with the transaction
which might have caused suspicion of some extraordinary influence
in producing such a state of things, in a mind even more enlight-
ened than the defendant's appears to have been.

But it is said that forty-eight hours had intervened between
the conversation and the speaking of the slanderous words, and
this is a sufficient reason for excluding this testimony, and for
this position the plaintiff relies on Avery v. Ray, 1 Mass. Rep.
12; Lee v. Woolsey, 19 Johns. 329; Cushman v. Waddell, 1
Baldw. f>7. But these were all cases of actions for assault and
battery, which depend on different principles. If the defendant
had cause to believe in the truth of the charge he made against
the defendant, of what consequence is it so far as affects the
^ 0.70-1 competency of his testimony, *whether he heard the facts,
' which were the grounds of his belief, forty- eight hours
before, or at the very moment of speaking the slanderous words ?
This objection was not thought of either in Kennedy v. Gregory,
or in Morris v. Duane ; nor has it ever been alleged as a reason
for excluding such testimony, that the information on which the
defendant relied, was communicated to him some time before the
speaking of the offensive words. In actions for an assault and
battery, it may be conceded that the defendant in mitigation of
damages, is confined to provocations which immediately precede
the assault. It must be so recent, as to afford a fair presumption
that the violence was committed under the influence, and during
the continuance of excited feeling and passion, and this on a
principle of policy which should repress, and not countenance
revengeful feeling, nor in any way encourage an appeal to force
and violence. But it is said, that this doctrine as to time was
applied to slander in Beardsley v. Maynard, 4 Wendell 337.
In that case it was decided, that in an action for a libel, the
defendant cannot give in evidence other libels published of him by
the plaintiff, not distinctly relating to the same subject ; and that
the publication of a libel three days previous to the publication
of the defendant's libel against the plaintiff will not be received
in evidence, in palliation of the offence, on the ground of pro-
vocation. When the passions have had time to cool, redress can
only be had by a resort to the legal tribunals of the country ; for
no man whose rights are protected by the law, should be the
avenger of his own wrong. And where the previous publication
has no relation to the libel, it should not be received to mitigate
the damages. Nor is there any excuse for a libeller, that the
other party has before libelled him. But the evidence here was

1 See 1 Harris 621 ; 10 Casey 116 ; 3 Wright 442.
328



1836.] OF PENNSYLVANIA. 32S

[Beehler v. Steever.]

not offered on the ground of provocation, but to show that Beehlor
had some reason to believe in the truth of the epithets he applied
.to the plaintiff, as affecting the degree of malice in uttering the
slanderous words, so as to explain the transaction to which he
alluded. In no case that I have seen, has it been thought mate-
rial, on the question of the competency of the testimony, that the
party has received his erroneous impression, either recently, or at
a remote period from the time the charge is made. In Beardsley
v. Lathrop, the principle is recognised, that if a connection can be
traced between the publication of the one as an answer to the other,
the former publication is evidence. The testimony was excluded,
expressly because no such connection had been discovered. And
in Hotchkiss y. Lathrop, in an action for a libel, it was permitted
to give in evidence a former publication by the plaintiff, to which
the libel was an answer, to explain the subject-matter, occasion,
and intent of the defendant's publication. And for the same
reason, we think this should have been received, as it seems to
explain the transaction, the occasion and reason of the offensive
charge. It is also a circumstance of some weight, that the conduct
of which the plaintiff complains, occurred *at an accidental r*ooq
meeting, and that immediately after Beehler being con- ^
vinced of the impropriety of his conduct, he acknowledged his
error, and tendered all the amends in his power.

In answer to the errors assigned to the charge : We have exam-
ined the charge in connection with the errors, and we can discover
nothing, of which the defendant can justly complain ; nor is there
anything which has been alleged as error, which requires particular
notice, except the answer of the court to one of the defendant's
points. The court was requested to charge the jury, that if they
believe that the words spoken were, " I believe you are conspiring
with others to cheat me out of my money," they are not actionable;
and that there is a variance between the words laid and proved, and
that the verdict ought to be in favor of the defendant.

It cannot be urged, with any prospect of success, that the words,
" I believe you are conspiring with others to cheat me out of my
money," are not actionable. The question has been too often
settled, now to admit of doubt. Nor was this point pressed, but
the latter branch of the proposition was insisted on. This is a
point, not without plausibility, but yet it seems to be settled by
authority. In actions of slander, it is only necessary to prove,
in substance, the words laid in the declaration ; and for the
defendant to say, " I believe you are conspiring with others to
cheat me," amounts, in substance, to a positive charge, that you
are conspiring with others to cheat me. It is equal to a positive
averment of guilt; for a man only avers a thing because he is
cognisant of it. And this point was so decided in Miller v. Miller

329



329 SUPREME COURT [Dec. Term,

[Beebler v. Steever.]

8 Johns. Rep. 74. The words laid in the declaration were,
" Tina Miller has stole my watoh, and Polly Miller has concealed
it for her." The proof at the trial was, that the defendant said
that his watch had been stolen from him in the plaintiffs bar-room,
and that he had reason to believe that Tina Miller took it, and that
her mother concealed it. It was held by the court that the words,
in substance, were the same, and supported the declaration. The
court say, " the defendant made a positive charge that his watch
had been stolen in the bar of the plaintiff, and he added, that he
had reason to believe that Tina Miller had taken it, and that her
mother had concealed it. The assertion that he had reason to
believe that the one took and the other concealed it, is equivalent
to the charge that the one stole and the other concealed it."
Oldham v. Peck, 2 Bl. Rep. 961, is to the same point, where the
court held, that to say, " I am thoroughly convinced that you are
guilty," is equal to a positive averment of guilt. Besides, so much
depends upon the nanner in which the words are spoken, that the
court were right in saying to the jury, that it was not for them to
pronounce peremptorily that there was such a variance as to require
a verdict for the defendant.

Judgment reversed, and a venire de novo awarded.

Cited by Counsel, 5 W. & S. 365 ; 10 Barr 371 ; 8 Casey 96 ; 10 Id. 117 ;

9 P. F. Smith 486 ; 2 Miles 105 ; || 30 Smith 514 ; 1 W. N. C. 69. ||

Cited by the Court, 9 Barr 313 ; 2 Harris 370 ; 4 Id. 209 ; H Under the

cneral issue rumors of the truth of the charge are inadmissible : Pease v.
hippen, 30 Smith 515 ||

Followed, as to admissibility of evidence of the state of the plaintiff's
family : Klumph v. Dunn, 16 Smith 147.



*330] *[PHILADILPHIA, FEBRUARY 18, 1837.]

Ex parte Hussey.
Ex parte Morton.

1. The Supreme Court had no power under the acts passed previously to
the 16th of June 1836, to compel a trustee to pay over trust moneys in his
hands, and in default of such payment, to dismiss him from the trust.

2. Proceedings to obtain relief under the 13th section of the act of the 16th
of June 1836, conferring upon the Supreme Court the jurisdiction and pow-
ers of a Court of Chancery in certain cases, must be by bill and subpoena :
The court will not grunt relief upon petition.

ON the 4th of February Mr. Earle presented a petition from
Phoebe Ilussey. administratrix of the goods, &c., of Ann Eliza-
beth Johnson, deceased, setting forth that Isaac Norris, Esq., who
was trustee for the said Aim Elizabeth Johnson in her lifetime, had
330



1836.] OF PENNSYLVANIA. 330

[Ex parte Hussey Ex parte Morton.]

in his hands, as appears by a settlement of his accounts, acquiesced
in by her, the sum of $885, with interest from the llth of Novem-
ber 1836 ; that the said fund is due and payable to the petitioner,
but payment was refused by the trustee ; and praying the court to
take such measures as it may deem most fit, to compel the trustee
to pay over the money, or to dismiss him from the trust.

On the same day, a petition was presented on behalf of Joseph
McKenzie Morton, alias Joseph Moulton McKenzie, setting forth
that Isaac Norris, Esq., had in his hands a portion of the estate
of Joseph Morton, of Charleston, S. C., deceased ; placed in the
hands of the said Isaac Norris, to be disposed of in conformity
with the last will of the said Joseph ; that by the terms of the
said will, the greater portion of the same is payable, and has
been, for more than four years, due and payable ; that according
to the admission of the said Isaac Norris, Esq., the sum of
$1414.20 is in his hands, with interest; and $1223.29 of the
same is payable to the petitioner, with interest ; and that he had
neglected and refused to pay, &c. ; and praying the court to take
the proper measures to compel him to pay, or to dismiss him from
the trust.

Rules to show cause were granted in these cases ; and now,
on the return thereof, Mr. Earle endeavored to sustain the pro-
ceeding.

*Mr. Kennedy, for Mr. Norris, stated, that he was
ready to pay over the fund in both cases, after due allow-
ance for costs and expenses ; provided the proper mode of proceed-
ing was resorted to.

The opinion of the court was delivered by

SERGEANT, J. [After stating the circumstances] : No act of
assembly has been pointed out, nor am I able to discover any,
which authorizes this court, on petition, to compel a trustee to pay
over money, or to dismiss him from his trust. The first act on the
subject is that of the 24th of March 1818 ; and that applies only
to voluntary assignments for the benefit of creditors, and to trus-
tees of insolvent debtors, and gives the jurisdiction to the Common
Pleas. The act of the 29th of March 1819, confers jurisdiction on
the District Court. The act of the 29th of March 1823, extends
the fourth section of the act of the 24th of March 1818, to con-
veyances in trust for femes covert, minors and others, and gives
power to the Common Pleas to dismiss trustees, and appoint
others. The act of the 14th of April 1828, prescribes the mode
of proceeding by the Common Pleas and District Courts, in
voluntary assignments, or those by insolvents. The act of the

331



331 SUPREME COURT [Dec. Term,

[Ex parte Hussey Ex parte Morton.]

22d of March 1825, is the first that relates to the Supreme
Court, and empowers it to grant relief in equity, as far as respects
the appointment of trustees, in case of death, infancy, lunacy, or
other inability ; or where a trustee in a will renounces, or refuses
to act ; or where one or more trustees are dead, or non compos
mentis ; and also to compel the trustee, when the trust is expired,
to convey the legal estate. The 2d section authorizes the court to
proceed on petition of the cestui que use. The 3d section gives
the trustee authority, after having executed the trust, to file his
accounts in the Supreme Court, or District Court, or Common
Pleas, on oath, and empowers the court to grant him a discharge,
after citation and hearing. By the act of the 14th of April 1828,
the Circuit Court, District Court and Common Pleas, have the
same power as that given to the Supreme Court by the act of 1825.
The act of the 21st of March 1831, relates to voluntary assignments
for creditors, and to the Common Pleas of Philadelphia County.
The act of the 14th of June 1836, extends only to the Courts of
Common Pleas.

The 13th section of the act of 16th of June 1836, confers upon
the Supreme Court and the several courts of Common Pleas, the
jurisdiction and powers of a court of chancery, so far as relates to
" the control, removal and discharge of trustees, and the appoint-
ment of trustees, and the settlement of their accounts ;" and also,
" the care of trust-moneys and property, and other moneys and
property, made liable to the control of the said courts," and repeats
the latter provision when afterwards speaking of the Supreme
*3321 *Court, sitting in bane in the city of Philadelphia, and the
-* Court of Common Pleas for the same city and county.

Supposing these clauses to give this court power to proceed
against trustees by original process, in other cases than those em-
braced by the act of the 22d of March 1825, yet as it is a chancery
jurisdiction, and no other mode is pointed out, it can only be done
by subpoena and bill, and not upon petition. The power to pro-
ceed by petition, given by the act of the 22d of March 1825, is not
repealed ; that act is confined to cases, limited in their nature, and
admitting a summary proceeding, without inconvenience. But
without express power to proceed in other cases by petition, the
ordinary mode of proceeding in chancery must be pursued, and is
to be regulated, until altered, by the practice prescribed or adopted
by the Supreme Court of the United States. The prayer of these
petitioners, therefore, cannot be granted.

Cited by Counsel, 6 Barr 403 ; 7 Harris 51.
332




1836.] OF PENNSYLVANIA. 332



[PHILADELPHIA. FEB. 18, 1837.]

Shewell against Keen and Another.



IN ERROR.



A legacy cannot be attached in the hands of an executor, for the debt of
the legatee, by process of foreign attachment.

ON a writ of error to the District Court for the City and County
of Philadelphia, the case was as follows :

To December Term, 1832, Thomas Shewell issued a writ of for-
eign attachment, in case, against Standish Forde and John B.
Forde ; bail, $19,000. The writ issued on the 1st of October,
1832, and was endorsed as follows:

" Attach all and singular the messuages, lands, tenements and
hereditaments, goods, chattels, rights, credits, effects and estate,
*real and personal, whatsoever, and wheresoever lying and r*oqo
being, in your bailiwick, of the defendants, and especially I
those which are devised to the said defendants by Sarah Forde,
late of the city of Philadelphia, deceased, widow, as appears by her
last will and testament, dated July the 10th 1832, duly proved on
the 14th of September 1832, and remaining on file in the office of
the Register of Wills at Philadelphia ; and summon as garnishees
Charles Keen and Aaron Kille, executors of said last will and tes-
tament, or any other person or persons in whose hands the same
you shall find."

The sheriff returned as follows :

" October 1st 1832, attached as within commanded all and singu-
lar the lands, messuages and tenements of the defendants in the
county of Philadelphia, and left a copy of attachment at the office
of the Recorder of Deeds for the city and county of Philadelphia,
and further attached all the goods, chattels, rights, estate, credit
and effects of the defendants in the hands of Charles Keen and
Aaron Kille, executors of the last will and testament of Sarah
Forde, deceased, and summoned them as garnishees.''

On the 22d of June 1833, the plaintiff's declaration having been
filed, judgment was entered against the defendant.

A writ of inquiry issued to September Term 1833, to which
the sheriff returned, that the inquest had assessed the damages at
$11,573.39.

The plaintiff then issued a scire facias against the garnishees
on the 26th of September 1833, returnable to December Term
1833; and in March 1834, filed the following interrogatories to be
put to the defendants, according to the act of assembly.

ooo



333 SUPREME COURT [Dec. Term,

[Shcwell c. Keen.]

" Interrogatory 1. Do you know the above named John B.
Forde and Standish Forde ? How long have you known them, or
either of them ?

" Interrogatory 2. Had you or either of you, on the 1st day of
October A. D. 1832, the date of the service of the foreign attach-
ment in this case, or have you or either of you since that time, had
in your possession, keeping, care, control, management or direction,
any goods, wares, merchandise, moneys, property, credits, rights
or effects of any kind or description, or any legacies, moneys,
property or things devised, belonging, coming or appertaining to
the said John B. Forde and Standish Forde, or either of them, or
to which they are or were in any manner entitled, and which of
them ? If yea, how much ; annex a proper account or exhibit to
your answer hereto, and answer fully and at large.
*3S41 "* Interrogatory 3. Had you, or either of you, on the
J said 1st of October A. D. 1832, or have you or either of you
since, as executors of Sarah Forde, deceased, received or had pos-
session of any property, moneys, effects or things, or had any con-
trol over the same, which by virtue of the last will and testament
of said Sarah Forde, deceased, belonged to the said John B. Forde
and Standish Forde, or either of them, and which of them, or to
which they were in any manner entitled, or had any interest
therein ? Answer fully and at large ; and if affirmatively, annex
statements or exhibits of amounts and facts in full.

u Interrogatory 4. Are all the debts due by the estate of Sarah
Forde, deceased, of whose last will and testament you are the
executors, fully paid and discharged? Has the general account
of your administration of said estate been duly settled and
confirmed ? Annex copies of the same, and answer fully and at large.

" Interrogatory 5. Do you know of any other matter or thing
material to the plaintiff in this case ?" &c.

On the 7th of April, 1834, the following answers were filed.

1. To the first interrogatory they answer and say : That they
have been partially acquainted with John B. Forde and Standish
Forde for several years, but the precise period they are unable to
state.

2. To the second interrogatory they answer and say : That in
their individual capacities they had not, nor had either of them any,
either on the 1st of October or since.

3. To the third interrogatory they answer and say : Yea, that
they, as executors of Sarah Forae, deceased, had, on the 1st day of
October 1832, and since, the possession and control of the pro-
perty and effects left by her, in which the said John B. Forde and
Standish Forde were interested ; they being each entitled under
the will to one-sixth part of the residue and the remainder of the
estate, after the payment of debts and funeral expenses, and certain

334



1836.] OF PENNSYLVANIA. 334

[Shewell v. Keen.]

legacies ; two notes due by Standish Forde to the estate, amount-
ing to $1406.23, with interest on them, to be deducted from
Standish Forde's share. The statement annexed, marked A M
shows the property belonging to said estate, on hand on the 1st of
January, 1834, when distribution was made to the other legatees;
and the following property and effects were retained in their hands
as executors, as and for the shares of the said John B. Forde and
Standish Forde, viz. : A bond and mortgage given by Samuel
Stevenson to the said executors for $1000 ; a bond and mortgage
given by Adam Hoffman to the said executors for $400 ; seven
shares of Commercial Bank stock ; four shares of Farmers' and
Mechanics' Bank stock ; two shares of Mechanics' Bank stock, and
$1165.62 in money.

4. To the fourth interrogatory they answer : Yea ; that all the
*debts due by the estate, so far as they have come to their r*ooc
knowledge, are paid and discharged. That their accounts, -

as executors of said estate, have been duly settled and confirmed.
Copies of said accounts are annexed, marked B.

5. To the fifth interrogatory they answer: That they know
nothing further material to the plaintiff in this cause, except that
in December 1832, they received from F. W. Hubbell, Esq., as
attorney of Robert Sthreshley, a notice that the said John B.
Forde did, on the 12th day of December 1832, assign all his
interest in the estate of the said Sarah Forde to Robert B.
Sthreshley."

By the account marked A., referred to in the answer to the third
interrogatory, it appeared that the amount in the hands of the
executors on the 1st of January 1834, to be divided among the lega-



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