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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 6) online

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bridges, either as to place or number, provided they are approved
of in the manner pointed out in the 35th section of the act of
13th June 1836. As to vacating the former county bridge, I see
nothing in the petition or proceedings that has an eye to that. The
old county bridge, or what is left of it, remains in statu quo un-
affected by these proceedings.



1841.] OF PENNSYLVANIA. 368

[Bridge over Smithfield Creek.]

2. The second objection has been satisfactorily answered by
the counsel for the petitioners. The order and proceedings of the
viewers seem to be merely on the first petition, (which is placed
last in the paper-book), the one headed by George Walter. The
presence of another petition in the record, not acted on, must be
considered *as irrelevant and not affecting the validity of the r*qcq
proceedings, if otherwise right.

3. The third objection is however fatal. The act of 13th June
1836, section 35, directs that the court shall " order a view in the
manner provided for in the case of roads." And the 3d section
enacts in the case of roads, that the viewers " shall make report at
the next term of the said court." It is impossible, we think, to
give any other interpretation to the 35th section than that the
viewers of bridges also shall make their report at the next term
of the court. It cannot be, as has been contended, that the man-
ner here referred to, embraces merely the mode of appointing the
viewers, and has no reference to their duties. Under such a con-
struction there would be no rule at all in the case of bridges, as to
the duties of the viewers, the time of making their report, and
other matters of great importance, and concerning which it would
be inconvenient to leave them ad libitum without any direction or
control. The legislature seems to have deemed it expedient that
there should be a delay in the report till the succeeding term, as
well that the viewers might have time to weigh and deliberate
without hurry or precipitation, as that parties interested should
have opportunity to learn the doings of the jury, and act with pre-
paration in regard to them. These reasons apply as strongly to
bridges to be erected, as to roads to be laid out; indeed frequently
they are connected together. See sec. 37. It is true, it may hap-
pen that an extraordinary occasions a freshet may sweep away
bridges, and make immediate action desirable. This is a cose
however for which the act does not provide.

The 4th, 5th, and 6th, have been passed over, and are indeed
included in the former.

7. This \ve think forms no objection. The legislature had com-
petent power to authorize the erection of bridges over streams
declared public highways, either by a special act or a general one ;
and the act of 13th June 1836, gives authority as to all rivers,
creeks and rivulets, without exception.

But on the 3d objection, these proceedings must be reversed.

Proceedings reversed.

|| Cited by counsel, 16 Smith 186.||

Cited by the court, 11 Wright 538. || Also in Bedford Bridge, 22 Smith
46, as to the report of bridge viewers being governed, as to the time of its
return, by the road law ; such report must, like a road report, lie over to
the next term for exception and review : Ibid. Cited in a dissenting opinion:



369 SUPREME COURT

[Bridge over Smithfleld Creek.]

In re Kensington Tpk. Co., 10 W. N. C. 185, as to road viewers' reports
being returnable to term succeeding appointment. If either the court,
grand jury, or county commissioners disapprove of the report of the viewers,
that proceeding falls: Pequea Bridge, 18 Smith 428. ||



*370] *[PHILADELPHIA, APRIL 3, 1841.]

Daniel King's Estate.

APPEAL.

1. Questions of advancement depend upon the intention of the parent;
and of this, the declarations of the parent at the time, or the admissions of
the child || against itself || at the time or afterwards, would seem to be
evidence.

2. If there be no evidence at all on the subject, then whether it was a
present or an advancement, may be judged of by its amount and character.

3. Where a father, whose estate appeared on the settlement of the accounts
of the administrators, after his death, to have amounted to upwards of
$120,000, and who had four children^ bought furniture for a daughter, on
her marriage, to the amount of $1132, and there was evidence of his decla-
rations that he had given them to her as a present and a gift ; it was held,
that she was not to be charged with this as an advancement; but that it was
to be considered as a present to her.

THIS was an appeal from a decree of the Orphans' Court for
the county of Philadelphia, in the matter of the settlement of the
accounts of the administrators of the goods, &c., of Daniel King,
late of the city of Philadelphia, deceased.

The only item in these accounts which formed the subject of
controversy, was the following.

" 1836,

December. To amount of furniture advanced Maria

S. Smith, and omitted in appraisement, $1132.03."

The auditor reported on this item as follows :

"It was contended on the part of Mr. William H. Smith, that
the amount of the advancement made to his wife was improperly
*q7-i-i introduced on the debtor side of the account ; and two wit-
' nesses were *produced, to wit, Mrs. Margaret Keemle' and
Mrs. Elizabeth Flick, (whose testimony is hereto annexed, as per
exhibit D.) who, in their examination, declared that the amount
paid for furnishing his daughter's house, had, in their presence by
Mr. Daniel King, been declared to be a gift to her of her furniture
and her plate. The auditor is of opinion that the amount of the
said advancement is properly introduced on the debtor side of the
account: all advancements being gifts."



1841. J OF PENNSYLVANIA. 371

[Daniel King's Estate.]
Exhibit D.

Mrs. Margaret Keemle* being duly affirmed, declares and says,
that she is aged seventy years and upwards; and that she was
acquainted with Mr. Daniel King better than ten years previously
to his death ; and that she was also acquainted with his daughter
Maria. Mr. Daniel King told me he gave the furniture of the
house in which she lived to his daughter Maria as a present and a
gift; he said he gave it to her because she married to please her-
self and her parents. This was said to me in the month of Octo-
ber, before she was married. He was about furnishing at the same
time. In answer to a question by the auditor. " She was mar-
ried a little better than two years ago. I think Mr. King died
in December 1836."

" Mrs. Elizabeth Flick being duly affirmed, declares and says, that
she was acquainted with the deceased, Mr. Daniel King, and his
daughter Maria. She thinks she knew them for about fifteen or
sixteen years. Mr. King told me himself, in the presence of Mrs.
King, that he was making his daughter a present of her furni-
ture and her plate ; this was in the front parlor of his own
house. They were not married at this time. It was the latter
end of October, and he was then about furnishing the house. I
believe they were married the next month ; within a week or two
after that. Mr. and Mrs. King both told me they were going to
be married. The gentleman to whom she was married was Mr.
William II. Smith.

Exceptions were filed in the Orphans' Court, to the auditor's
report, as follows :

1. Because the auditor has charged William H. Smith and wife
with the sum of $1132.03 as an advancement, when, in fact,
the said sum was a present by the intestate to his daughter in his
lifetime.

2. Because the auditor has decided that the sum of $1 132.03
aforesaid was properly charged on the debtor side of the adminis-
tration account.

3. Because the auditor has decided that all advancements are
gifts.

* After argument, the Orphans' Court made the following I-^OTO
decree :

"And now, November 23d, 1839, the court sustain the said
exceptions, and do order and decree that the said report be amended
by striking out of the account the item or sum of $1132.03, charged
on the debtor side thereof as an advancement to Maria Smith ; and
direct that distribution be made accordingly, and the report thus
amended be confirmed absolutely. The court being of opinion that
the furniture composing said item was a pure gift by the intestate to
his daughter, and not intended by him as an advancement, and
therefore improperly charged by the auditor."



372 SUPREME COURT [March Term,

[Daniel King's Estate.]

From this decree the administrators appealed, and filed the follow-
ing specification of errors :

1. The court below directed the item or sum of $1132 03
charged on the debtor side of the account, reported by the auditor
as an advancement to Maria Smith, to be struck out of the ac-
count, and the report of the auditor to be amended accordingly.
To this order and direction of the court, exception is hereby
taken.

2. The appellants except to the aforesaid direction of the
Orphans' Court, both on its intrinsic demerits, and on the ground
that although the furniture composing said item may have been
a pure gift by the intestate, it may, nevertheless, operate as an
advancement.

Mr. O. J. Ingersoll, for the appellants.

The depositions don't alter the case. It was, in fact, an ad-
vancement though the intestate chose to call it a gift or present.
He must have used this language, though he meant an advance-
ment. He was not selling the furniture to her. "Advancement"
is a technical word, not commonly used or understood. In Oyster
v. Oyster, 1 S. & R. 425, it is called a gift. Hoke v. Hoke, 5
Watts 82 ; Watson v. Watson, 6 Id. 257. Act of the 8th of
April 1833. The object is to equalize distribution ; whereas,
if the child had been advanced to one half of the estate, the
case would be the same as at present.. All would go as a gift
according to the opposite construction, to the injury of the other
children. Pratt v. Pratt, Fitzgibbon 285. The Massachusetts
acts throw the burden of proof on the party alleging an advance-
ment ; but, as we have no such acts, the burden is thrown on the
other party. Here it is to be presumed an advancement until the
contrary is shown.

Mr. J. H. Campbell, contra.

The estate is shown by the accounts to have exceeded $120,000.
There were four children. Maria was the only daughter. It would
be strange if a father under such circumstances could not make a
present to a daughter. There was a book of the intestate produced
* 070-1 *o n the hearing below, containing entries of expenditures for
I the other children; but no entry of this. The rule in Penn-
sylvania has been that the party averring an advancement must
prove it. It is a question of intention. Surely a man may yet dis-
pose of his property as he pleases, if he has no creditors. The
depositions show that he intended a pure gift.

Mr. J. R. Ingersoll, in reply.

Advancement is the correlative of debt, not of gift. If the estate



1841.] OF PENNSYLVANIA. 373

[Daniel King's Estate.]

had been small, the injury might have been great to the other
children ; and they have a right to say that this shall be an advance-
ment on the death of their parent, intestate, whatever it might
be as a gift in his lifetime. Here we show an advancement from
the nature of the transaction. The amount is large and the occa-
sion was the marriage or fitting out of a child. If not an advance-
ment, it must be a debt.

The opinion of the court was delivered by

SERGEANT, J. The evidence in this case shows that the gift
of the father to his daughter of furniture, at the time of her mar-
rying, was intended as a present, and not as an advancement. It
can be treated as the latter only on the principle contended for by
the appellants, that every such gift by a father to his daughter
must be deemed an advancement, in case of his dying intestate.
No authority, however, has been produced in support of this prin-
ciple ; nor does there seem any reason for saying that it never shall
be in the power of such parent to make a present to his child dur-
ing his lifetime, unless it falls within that class of small donations,
which the law holds to be presents and not advancements. Surely
such a parent has the right of giving his property to his child as
well as to a third person, if he choses, provided he does nothing
thereby to delay or hinder creditors. A daughter who leaves a
parent, at her marriage frequently relieves him from the burden
of maintaining her, while the other children may remain with the
parent for years, and become far more expensive to him ; and it
might be unjust that the children who remain should deduct the
daughter's provision of furniture, when they are not charged with
maintenance. All such questions must depend on the intention
of the parent in making the gift: and of this, the declarations of
the parent at the time would seem to be evidence, or the admissions
of the children against themselves at the time, or afterwards. And
in Hengst's Case, 6 Watts 86, entries in the father's books, made
at his request, and signed by him, were held evidence against the
child to show an advancement. If there be no evidence at all on
the subject, then whether it was a present or an advancement may
be judged of by its amount and character ; of which there have
been many cases in chancery, that *are referred to in 1 r*q74
Madd. Ch. 512, and other books. But when the intention '
of the father is clearly proved, as here, it supersedes this inquiry,
and settles definitely the character of the gift. In fact, nothing
is more usual than for the father, on the marriage of his daughter,
to provide her with furniture for housekeeping: and whether he
will charge it to her as an advancement, or make it a free and
absolute gift, to be her's without accountability in any event, is
within his own breast, where he is in a solvent state. If there be
6 WHARTON 24



374 SUPREME COURT [March Term,

[Daniel King's Estate.]

no evidence, it must be judged of according to the rules on the
subject to which I have adverted. Here, it seems, the daughter
married with the approbation of the father, and he chose, probably
as a testimony of his satisfaction, to give the furniture as a present,
which he had a right to do.

Decree affirmed.

Cited by counsel, 6 W. & S. 208 ; 5 Casey 210; 4 Wright 59 ; 6 Id. 352;
7 P. F. Smith 464.

Cited by the court, 7 Harris 433 ; 11 Id. 87 ; 1 Grant 371 ; 2 Id. 305 ; 2
Wright 127 ; IP. F. Smith 498 ; || Weaver's Appeal, 13 Id. 311, where it is
said that the question is always one of intention ; if there be no direct evi-
dence of this, the question becomes one of presumption from the amount
and character and other circumstances of the transfer ; some of these pre-
sumptions stated : the evidence to rebut such presumption should be clear
and satisfactory : Ibid. In Storey's Appeal, 2 Norris 98, a grandfather trans-
ferred to his grandson a sum, equal to nearly two-thirds of his distributive
share, to establish him in business ; held, an advancement, though there was
evidence of a declaration (not cotemporaneous,) that he had " given " this
sum to his grandson. The declarations of a parent, cotemporaneous with
his entries in a " family book," are evidence to show an advancement: Oiler
. Bonebrake, 15 Smith 344 ; declarations made subsequently and in absence
of child, cannot turn what was prima facie a debt, into an advancement ;
cases cited, Ibid ; and see Merkei's Appeal, 8 Norris 340. ||

See, also, 4 Wharton 137.



*375] [PHILADELPHIA, APRIL. 3, 1841.]

Commercial Bank of Cincinnati against Pleasants.

IN ERROR.

In the month of January 1836, the Commercial Bank of Cincinnati sent
by A., their agent, a large sum of money, in bank notes, to Philadelphia.
On the arrival of A. in Philadelphia, he called upon B., and asked him to
take charge of it. B. declined this, but told him that he might have the use
of his fire-proof for the purpose. A. accordingly went to the fire-proof and
deposited certain packages, and at the request of B. locked the door of th.e
fire-proof and took away the key with him. Afterwards he returned to B.'s
office ; and in the course of the same day a package containing $100,000 in
post notes of the Bank of the U. S., which had been brought on by him was
missing. Search was made in the fire-proof without success. The Com-
mercial Bank of Cincinnati, on hearing of the fact, offered by public adver-
tisement a reward of $10,000 for the recovery of the package. The adver-
tisement stated that the package " was lost at" Wheeling, or between that
place and Philadelphia, or possibly on the arrival of the bearer of it in
Philadelphia ; and that the reward would be paid on the delivery of the
package to B. at Philadelphia, or to other persons at other places named ;
and added that if inconvenient to the finder to deliver the money, he might
deduct the reward and remit the balance by mail to the bank. In the month
of August following, C., who was the principal person in the office of B.,
discovered the missing package on the floor of the fire-proof, and delivered
it to the cashier of the Girard Bank in Philadelphia, where it was deposited



1841.] OF PENNSYLVANIA. 375

[Commercial Bank of Cincinnati P. Pleasants.]

to the credit of the Commercial Bank of Cincinnati. Held, that the package
was not lost or recovered in the sense of the advertisement ; and at all events
that as it had not been delivered to either of the persons named in the adver-
tisement, C. was not entitled to the reward.

THIS was a writ of error to the District Court for the City and
County of Philadelphia, to remove the record of an action on the
case brought by William Pleasants against the President, Directors
and Company of the Commercial Bank of Cincinnati, to recover
the sum of $10,000, which had been offered by the defendants as
a reward for the recovery of a package containing 100,000,
belonging to the defendants, and supposed to be lost.

The action was commenced by a foreign attachment, to which
the defendants put in bail.

*The first count of the declaration recited that, " whereas r*^yg
heretofore, to wit, on the eighteenth day of April, in the year *-
of our Lord one thousand eight hundred and thirty-six, at the
county aforesaid, the said " The President, Directors and Company
of the Commercial Bank of Cincinnati, caused to be printed and
published in a certain public newspaper commonly called The
Pennsylvanian, a certain advertisement, dated Commercial Bank
of Cincinnati, the seventeenth day of March, in the year one
thousand eight hundred and thirty-six, and by the said advertise-
ment they the said defendants did then and there, to wit, on the
day and year last aforesaid, at the city aforesaid, promise and
undertake to pay a reward of ten thousand dollars on the recovery
of a package containing one hundred thousand dollars in post notes
of the Bank of the United States, of the denomination of five
hundred and one thousand dollars lost by the said defendants."
The plaintiff then averred, that he, " confiding in the promise and
undertaking of the said defendants, so by them in manner and
form aforesaid made, did afterwards, to wit, on the twentieth day
of August, in the year aforesaid, at the county aforesaid, recover
and find the said package, and did restore the same to the said
defendants, by reason whereof, the said defendants then and there
became liable to pay, and ought to have paid to the said plaintiff,
the aforesaid reward of ten thousand dollars, to wit, at the county
aforesaid ; and being so liable they the said defendants in consid-
eration thereof, afterwards, to wit, on the day and year last afore-
said, at the county aforesaid, undertook, and then and there promised
the said plaintiff to pay him the said sum of money when they the
said defendants should be thereunto afterwards requested."

The second count recited, "and whereas also afterwards, and
before the making of the promise and undertaking of the said
defendants hereinafter next mentioned, to wit, on the 17th day of
March, in the year aforesaid, at the county aforesaid, a certain
package belonging to the said defendants containing one hundred



376 SUPREME COURT

[Commercial Bank of Cincinnati v. Pleasants.]

thousand dollars in post notes of the bank of the United States,
of the denominations of five hundred dollars and one thousand
dollars had been lost, to wit, at the county aforesaid; and thereupon
heretofore to wit, on the day and year last aforesaid, at the county
aforesaid, the said defendants had caused to be printed and pub-
lished a certain advertisement, and therein in consideration of the
premises had undertaken and promised to pay the sum of ten
thousand dollars on the recovery of the said package; and the
said plaintiff confiding in the promise and undertaking of the said
defendants, afterwards, to wit, on the twentieth day of August, in
the year aforesaid, at the county aforesaid, found the said package,
and did then and there deliver the same to the said defendants;
and the said defendants by means of the premises then and there
*3771 recovere( i the same ; of all which matters and things, the de-
-* fendants on the day and year last *aforesaid, at the county
aforesaid had notice whereby the said defendants then and there
became liable to pay the said plaintiff the said sum of ten thous-
and dollars, when they the said defendants should be thereunto
afterwards requested ; and being so liable they the said defendants
in consideration thereof, afterwards, to wit, on the day and year
last aforesaid, at the county aforesaid, undertook, and then and
there promised the said plaintiff to pay him the said sum of money,
when they the said defendants should be thereunto afterwards
requested."

There was also a count for money had and received.

The defendants pleaded non assumpsit, and payment with leave,
&c.

The cause came on for trial before Stroud, J., on the 31st of
October 1839 ; when the counsel for the plaintiff opened that this
was an action to recover $10,000 reward offered by the defendants
for the recovery of $100,000 in post notes, lost by the defendants
and found and restored by the plaintiff. That on or about the 29th
of January 1836, Charles Cist left Cincinnati with a large amount
of money, among the rest $100,000 in 500 and $1000 notes. He
came to Charles Macalester, who was general agent then of the
bank, and put the packages in his fire proof, taking the key.
About three o'clock he went to the Schuylkill Bank to deposit
the money; on getting there he found he had not this package of
$100,000; and that on the 20th of August 1836, the plaintiff
found this money, and took it to the Girard Bank, and there
deposited it to the credit of the defendants.

The plaintiff then gave in evidence the following advertisement :

" $10,000 Reward.

"The above reward will be paid on the recovery of a package
containing one hundred thousand dollars, in post notes of the



1841.] OF PENNSYLVANIA. 377

[Commercial Bank of Cincinnati v. Pleasants.]

Bank of the United States, of the denominations of $500 and
$1000, which was lost at Wheeling, or between that place and Phil-
adelphia, between the 29th of January and the 3d of February.
The package was made up at St. Louis, and addressed on the out-
side to Wm. S. Hatch, Esq., cashier of the Commercial Bank
of Cincinnati, and was forwarded without being opened from the
Commercial Bank to Philadelphia. The bearer proceeded to
Wheeling by the mail stage, and thence by Washington, Pa., to
Pittsburgh, in the Good Intent Line of Stages, by Greensburgh
and Bedford to Philadelphia. The loss is supposed to have taken
place after the arrival of the bearer at Wheeling, and before he
reached Philadelphia ; but may possibly have occurred on his
arrival at the latter city.

"The above reward will be paid on the delivery of the said pack-
age *to Charles Macalester, Esq., Philadelphia; to John r*oqo
Snyder, Esq., cashier of the Bank of Pittsburgh ; to John "-
List, Esq., cashier of the N. W. Bank of Virginia, at Wheeling;
or to the cashier of the Commercial Bank of Cincinnati, and no
questions will be asked.

" Measures have been adopted to stop the payment of the notes :
the description of them has been extensively circulated they will
be of no value except to the owners.

" If inconvenient to the finder to deliver the money, he is author-
ized to deduct the reward, and remit the balance by mail to the bank.

J. S. ARMSTRONG, President.

Commercial Bank of Cincinnati, March 17th 1836."

The following parol evidence was then given on the part of the
plaintiff.

W. D. Lewis, sworn. "The plaintiff called on me one morning



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 42 of 75)