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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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that they obtained the bill of sale on promising Sprenger the clerk-
ship, &c., as stated. The only foundation for this point is the alle-
gation of counsel, that the assignment of the 13th, and the lease
arid hiring of the 14th, were both on the same day ; and that one
was the consideration of the other ; but of this there is no evidence.

The defendant's counsel took a bill of exceptions to the charge ;
and the jury having found for the plaintiff, the case was removed
to this court by writ of error.

Mr. Ihrie, for the plaintiffs in error, cited Clow v. Woods, 5 S.
& II. 275, 287 ; Babb v. Clemson, 10 Id. 419 ; Streeper v. Eckart,
2 Whart. 302 ; Roscoe on Evidence 484 ; McBride v. Duncan, 1
Whan. 273; Van Brunt v. Schenck, 11 Johns. Rep. 385.

Mr. Hepburn, contra, was stopped.

The opinion of the court was delivered by

SERGEANT, J. The charge of the court is so full and explicit,
as to render it necessary to do little more than refer to it for the
principles applicable to the case.

The questions asked by the defendant as to the consideration
which passed from Cope to Kreider and Hanse. for the bill of sale,
were properly overruled. It was immaterial what that considera-
tion was, or whether there was any consideration at all. A mere
gift would convey to Cope the interest of Kreider and Hanse ; and
the only question was, what was the title of Kreider and Hanse,
thus conveyed, as against Hoofsmith, who alleged the conveyance to
them by Sprenger to be fraudulent and void against his creditors.
*0n that subject the court properly instructed the jury, that r*~n
if Cope, under the transfer to him by Kreider and Hanse, *-
took actual possession before the execution issued by Hoofsmith, he
could recover : if he had not taken actual possession, he could not
recover: and whether he had or not, was properly left to the



But it is contended that Sprenger had, by virtue of his contract
with Kreider and Hanse, such an interest in and control over the
property and possession, that the possession could not be taken by
Cope against the will and without the consent of Sprenger. It
would seem, however, that by the contract, as proved, Sprenger was
merely employed by Kreider and Hanse as a clerk, at a salary of four
hundred dollars a year, to sell the goods for Kreider and Hanse,
and close the business : the lease of the store being taken by
Kreider and Hanse, and the property in the goods vested in



59 SUPREME COURT [Dec. Term,

[Hoofsraith r. Cope.]

them by the bill of sale. Under these circumstances, as is stated
in the charge of the court, Sprenger was no more than the servant
of Kreider and Hanse, bound to comply with their directions, and
he could not resist either their entry on the premises, or their tak-
ing actual possession of all the property contained in the bill of
sale. The master may discharge the servant at any time, and take
actual possession of his own goods, remaining responsible for any
violation of contract. Here it was deemed necessary for the mas-
ter to do so ; otherwise Sprenger, though as to Kreider and Hanse
a servant, yet as to third persons, being the assignor, continuing in
possession, his possession might not perhaps be so clearly the pos-
session of Kreider and Hanse, that Cope might not run the risk
of losing the property, if he did not reduce it to possession before
execution issued by a judgment creditor.

As to the assignment to Kreider and Hanse, it seems they were
bona fide creditors of Sprenger, and if so, he had a right to prefer
them by a bill of sale ; it being incumbent on them or their assignee
to see that possession was taken in time ; otherwise it might
come within the decided cases which make such assignment fraudu-
lent and void, if not accompanied with possession. On this point
the charge of the court was as favorable to the defendants as they
could claim on the evidence.

We see no error in the principles laid down by the court in its
charge ; or in any of the points raised by the bills of exceptions.

Judgment affirmed.

Cited by counsel, 2 W. & S. 150 ; 3 Barr 226 ; 6 Id. 122 ; 4 Harris 218 ;
12 Id. 523 ; 2 Casey 62; 5 Id. 291 : 3 Grant 239 : 7 Wright 105 ; 4 P. F.
517; 5 Id. 395. || 32 Id. 233. ||

Cited by the court, 3 Barr 329, 443 ; 12 Harris 11 ; 3 P. F. Smith 257.

See also, 2 Wharton 306.

|| In trespass d. b. a. against a constable for levying on plaintiff 's goods as
of another's, a return of part of the goods in reasonable time is evidence 'ju
the question of damages : Worman v. Kramer, 23 Smith 378. ||



1840.] OF PENNSYLVANIA. 60

*[ PHILADELPHIA JANUARY 4, 1841.] [*60

Stecher and Another against The Commonwealth.

IN ERROR.

1. An action of debt was brought in 1S37, in the name of the Common-
wealth to the use of A., upon a bond given by an administrator with surety,
with the condition to account for the proceeds of real estate sold under an
order of the Orphans' Court. The defendants pleaded in abatement the pen-
dency of two other suits brought before the passage of the act of 1836. in the
name of the Commonwealth, upon the same bond. Held, that as those suits
were for the use of other heirs of the intestate, the plea was bad.

2. Evidence is not admissible to explain an ambiguity in a report of audi-
tors which has been duly confirmed by the Orphans' Court.

3. It is not necessary to tender a refunding bond before bringing an action
for a distributive share of the proceeds of real estate sold by order of the Or-
phans' Court, on a bond given by an administrator with condition for the
faithful payment of the proceeds of such real estate

ERROR to the Court of Common Pleas of Northampton County.

This was an action of debt brought to November Term, 1837, in
the name of the Commonwealth of Pennsylvania, to the use of John
Stecher against George Stecher and Philip Messinger, upon a bond
dated the 20th day of January A. D. 1832, executed by George
Stecher, with Philip Messinger as his surety, in the penal sum of
$16,300, with the following condition :

" Whereas, at an Orphans' Court held at Easton, in the said
county, on the 26th day of November 1831, the said court did order
and decree that the said George Stecher and one Andrew Stecher,
administrators, etc., of George Stecher, late of Forks township,
should make sale of the real estate of the said George Stecher :
Now the condition of this bond is, that if the said George Stecher,
administrator as aforesaid, shall and will faithfully execute the
power committed *to him in making such sale, and thereby r*a-t
account for, and pay over the proceeds thereof according to
his duty, or as the said court should legally decree, then this obli-
gation to be void," &c.

The plaintiff averred in his declaration that the said George
Stecber did not faithfully execute the power thus committed to
him ; and that there was in the hands of the said George, the sum
of $2234 arising from said sale, and due to him as one of the heirs
of the said George Stecher, deceased.

A plea in abatement was filed by the defendant in substance as
follows :

"And the said Philip Messinger, by Peter Ihrie, his attorney,
comes and defends the wrong and injury, when, etc., etc., and
prays judgment of the said writ, because, he says, that before the
exhibiting of said writ, to wit, of April Term, 1836, in the said



61 SUPREME COURT [Dec. Term-,

[Stecher v. Commonwealth.]

Court of Common Pleas of Northampton County, before the judges
of the said court, then and still being holden at Easton, in the
county of Northampton, the said Commonwealth impleaded the ?aid
George Stecher and Philip Messinger, and on the 14th day of April
1836, exhibited a certain writ against him, the said George Stecher,
in a plea of debt, that he render unto said Commonwealth $16,300,
and upon the same identical writing obligatory in the declaration in
the present suit mentioned and likewise of the same term ; and on
the same 14th day of April 1836, exhibited a certain writ against the
said Philip Messinger, in a plea of debt, that he render unto the said
Commonwealth $16,300, also, on the same identical writing obliga-
tory, mentioned in the declaration in the present suit; and which
said last- mentioned suit was afterwards, to wit, on the 28th day of
July 1836, submitted to the arbitration of Samuel Moore, Robert
Innes and Charles L. Eberle, as arbitrators of said action, by the
said Commonwealth, before whom the suit is yet depending and
undetermined, as by the record and proceedings thereof in said
court fully appears.

"And the said Philip Messinger further says, that the said Com-
monwealth of Pennsylvania, and the said George Stecher and Philip
Messinger, in this and the former suit, are the same, and not differ-
ent, or other parties, and that the said former suits so brought and
prosecuted against them, the said George Stecher and Philip Mes-
singer, by the said Commonwealth, are still pending, viz., the
former in the said Court of Common PleaS, and the latter before
the said arbitrators chosen to decide all matters between the said
Commonwealth and the said Philip Messinger, etc.

"And the said Philip Messinger also prays judgment of said writ,
because, he says, that before the issuing of said writ, viz., of August
Term 1836, in the said Court of Common Pleas, the said Common-
wealth, at the instance and for the use of the said John Stecher,
*ftn-t *impleaded the said George Stecher and Philip Messinger,
I and on the 16th day of May 1836, exhibited a certain writ
against him, the said George Stecher, in plea that he render to the
said Commonwealth, $16,300, and upon the same identical writing
obligatory, mentioned in the declaration of the present suit.

"And likewise, on the 16th of May 1836. issued a certain writ
against him, the said Philip Messinger, in a plea that he render to
the said Commonwealth $16,300, and on the same identical writing
obligatory declared upon in the present suit. And the said Philip
Messinger further declares that the parties in this, and the said
former suits so brought and prosecuted by, and for the use of the
said John Stecher, are still depending in said court and undeter-
mined, and prays judgment of the said writ, and that it may be
quashed."



1840.] OF PENNSYLVANIA. 62

[ Stecher 0. Commonwealth.]

After argument, the opinion of the court, Banks (President), was
delivered as follows :

" The defendant, Messinger, pleads in abatement, the pendency
of four suits in said county, brought in the name of the Common-
wealth against the same defendants, on the same administration
bond, two brought to April Term 1836, and two brought to August
Term 1836. It appears that the two first suits were brought for
two of the heirs of old Mr. Stecher ; one for Henry Stecher, the
son of John George Stecher ; and one for Mary, the daughter of
old Mr. Stecher. The other two suits were brought for and by
Andrew Stecher. No one of the suits was brought by or for John
Stecher, for whose use this suit was brought. Can those suits, or
any of them be pleaded in abatement of this suit ? By the act of
1832, suits are to be brought on administration bonds, in the same
manner as suits are brought on sheriff's bonds. By the act of 1803,
each person aggrieved, may bring suit on the sheriff's bond or recog-
nisance, in the name of the commonwealth, for his use, and recover
judgments for the damages he may have sustained. Under the act
of 1832, until its repeal in 1836, each individual interested might
bring suit on an administration bond and recover the amount of
money due him in the name -of the commonwealth, for his use.
The name of the individual must be placed on the record. An
action is given to each one separately, adapted to the particular cir-
cumstances of his case. The actions which are pleaded in abate-
ment, stood in the name of the commonwealth alone. John had
not caused them, or any of them to be brought. He was not a
party to any of them, nor could he have been legally made a party
to any one of the suits. Nor had he any control over them, nor
could he have discontinued them. He could not have recovered his
money in any of those suits. This being the case. I cannot see
why they should *stand in his way, either to impede or inter- r*pq
rupt his action, properly brought, for the recovery of his
share of his father's estate. Prior to the act of 1832, the law
authorized the bringing of one suit on an administration bond, and
if judgment was obtained, it stood for the benefit of all concerned.
On this judgment each had a separate remedy for the recovery of
his individual claim. This is entirely changed by the act of 1832,
by which each party interested may at once bring a suit in the
name of the commonwealth, for his use, and thus recover his own
debt. If this is correct, as I think it is, the plea of abatement is
cut up by the roots. The court decides against the defendant on
the plea of abatement, and gives judgment of respondeat ouster."

The defendants then pleaded payment with leave to give the
special matters in evidence; and upon this issue the cause came on
for trial before Judge Banks, on the 28th of November 1839;
when the plaintiff having proved the execution of the bond, gave



63 SUPREME COURT [Dec. Term,

[Stecher . Commonwealth.]

in evidence a report of auditors upon the estate of George Stecher,
deceased, dated the 13th of January 1835, and confirmed nisi on
the 22d of the same, by which it appeared that there was a balance
in the hands of the administrator of $6472.01 for distribution.

The plaintiff's counsel then tendered a refunding bond with
surety, and asked leave of the court to file the same, which was
allowed.

The defendants' counsel, in the course of the trial, offered in
evidence

1. Three administration accounts of the estate; one dated the
20th of January 1832, settled by Andrew Stecher, administrator ;
another dated the 27th of January 1833, by the same ; and the
third dated the 24th of November 1831, by George Stecher, admin-
istrator.

2. A report or return of the sale by the admin istrator of a part
of the real estate of George Stecher, deceased, situated in Bushkill
township, dated the 26th of November 1831.

3. A report of auditors upon the estate of George Stecher,
deceased, dated the 21st day of March 1833.

Which were severally objected to by the counsel for the plaintiff,
and rejected by the court.

The learned judge charged the jury as follows:
" The defendants' counsel have requested the court to charge the
jury, that the plaintiff cannot recover, because he did not, before
suit brought, give a refunding bond, according to the provisions
of the act of the 24th of February 1834. The 39th section of
xft4-t that *act provides for distribution under the direction of
the Orphans' Court. The 41st section directs the security
which shall be given by the person entitled to receive any share in
the said distribution. This security must be given before he shall
be entitled to receive his share. This is when distribution is made
in the Orphans' Court, or by agreement, and does not apply to
suits in a court of law. The 45th section also applies to distribu-
tion in the Orphans' Court; and then the security must be given,
before the person is entitled to receive his share. The act does not
appear to provide for a suit brought in a court of law. The same
act provides that no action shall be brought for the recovery of a
legacy, until reasonable demand shall have been made of the exec-
utor : nor shall such legatee be entitled to execution in such actions
until security shall have been given, in the manner directed in the
sections I have referred to. The legislature, no doubt, supposed
that the remedy given in the Orphans' Court was ample, and that
a distributee would not find it necessary to resort to a suit or action
at law. But if the distributee does not resort to the Orphans'
Court for redress, but brings his suit as is provided in case of a
legacy, why may not the security be given before execution, as if



1840.J OF PENNSYLVANIA. 64

[Stecher v. Commonwealth.]

it was a legacy. Security to creditors is the object in both cases.

1 therefore do not see any reason why the security may not be
given in this case, before execution, in the same manner as is pro-
vided in case of a suit for the recovery of a legacy. I therefore do
not think that it was not necessary that the security should have
been given before suit brought : and the court refuses to charge you
as the defendants' counsel have requested."

A bill of exceptions was tendered to this charge; and the jury
having found for the plaintiffs, this writ of error was taken, and the
following- errors assigned.

1. The court erred in giving judgment of respondeat ouster.

2. The court erred in overruling the evidence mentioned in the
first bill of exceptions.

3. The court erred in rejecting the evidence mentioned in the
second bill of exceptions.

4. The court erred in rejecting the evidence mentioned in the
third bill of exceptions.

5. The court likewise erred in charging the jury that it was not
necessary that the refunding bond should be given or tendered
before suit brought.

6. The court also erred in refusing to charge the jury that the
plaintiffs cannot recover, according to the defendant's request.

Mr. Ihrie, for the plaintiff" in error

1. The court ought to have sustained the plea in abatement.
*Stephens on Pleading 65 ; Chitty PI. 443. George Stecher r*fic
died before the act of 1832. The act of 1836 provides for

only one suit.

2. The evidence rejected by the court was offered to explain an
ambiguity in the auditor's report, and ought to have been admitted.

3. The act of 1834, as to refunding bonds, does not apply to a
case where a party died before the passing of the act. The prior
acts required the refunding bond to be tendered before suit brought.
Patterson v. Nicholl, 6 Watts 379; Wood v. Davidson, 2 Rawle 52.

Mr. Brodhead, contra.

1. The plea in abatement was too late, because not put in until
after four days from the filing of the declaration. But it was pro-
perly overruled, because the former suits were not between the
same parties. The act of 1836 did not apply to this case. The
administrator might have escaped costs by depositing the money in
court.

2. The auditor's report was free from ambiguity; and having
been confirmed by the Orphans' Court, it was conclusive upon the
parties. McFadden v. Geddes, 17 S. & R. 339; App t>. Dreisbach,

2 Rawle 301 ; Thompson v. McGaw, 2 Watts 164.
6 WHAKTON 5



65 SUPREME COURT [Dec. Term,

[Stecher . Commonwealth.]

3. The refunding bond was tendered in time. Bixler v. Blan-
kenbiller, 8 Watts 64 ; Baughman v. Kunkle, 3 Id. 483.

The opinion of the court was delivered by

ROGERS, J. The suits which formed the subject-matter of the
plea in abatement, were brought under the act of 1832. By that
act, suits may be brought in the same manner as on sheriff's bonds
and recognisances. In this, reference is made to the act of the
28th of March 1803, by which each person who may be aggrieved
by the misconduct of the sheriff, is authorized to bring suits on the
bond and recognisance, and to recover judgment for the injury he
may have sustained. The pendency of a suit by one, in general
cannot be pleaded in abatement by another. And in another par-
ticular the plea is bad, because it is not for the same cause of action.
The plaintiff, John Stecher, was no party to those suits, had no
control over them, and cannot therefore be affected by them in any
way whatever. The act of 1836, which took effect in October of
the same year, does not touch this case, as the original actions were
instituted during the existence of the former act ; which, although
it repeals it, contains a saving clause, so far as may be necessary to
finish proceedings commenced before that time. The act of 1832
made an entire change in the practice; for previously suits were
brought on the administration bond in the name of the common-
wealth, and judgment, when rendered, remained, for the benefit of
all indebted ; the remedy for each being had by scire facias on the
continuing judgment. The act of 1832 alters this, by enabling
**-] each *party, in the first instance, to bring an action in the
J name of the commonwealth for his use, and to recover his
own debt.

The evidence contained in the bills of exception was offered to
explain an alleged ambiguity in the report of the auditors. But
we are not convinced that any ambiguity exists ; and if it did, it
would be improper to admit parol evidence to explain it : the report
is final and conclusive. The evidence was properly overruled.

The cases of Bixler v. Blankenbiller, 8 Watts 64, and Baugh-
man v. Kunkle, 8 Id. 484, particularly the latter, are an answer
to the objection that it was necessary to tender a refunding bond
before suit brought. In construing the acts of 1794 and 1792, a
distinction has been taken between a suit for a distributive share
and an action to recover a legacy. In the former, the act requires
the bond to be filed before the distribution made of the estate by
the administrator, whereas the latter orders a refunding bond
before suit brought.

Judgment affirmed.



1840.] OF PENNSYLVANIA. 66

[PHILADELPHIA, JANUARY 4, 1841.]

Kleckner against County of Lehigh.

IN ERROR.

1. In an action against a county, the sheriff returned that he had served
the summons on A. and B. who " are said to be two of the commissioners of
the county." Held, that the words "said to 6e," ought to be struck out
of the return ; and that the return was to be read as if the service had been
made on two of the commissioners.

2. Service of a writ of summons against a county upon two of the commis-
sioners is good ; and it seems that service upon one would be sufficient.

3. Service of process upon a commissioner who has been elected, but who
has not taken the oath of office, is good.

4. If the sheriff reads a writ of summons in the hearing of the defendant,
it is sufficient without leaving a copy of the writ with him.

5. Qvere. Whether a county or township is amenable to the jurisdiction
of a Court of Common Pleas of another county ?

ERROR to the Court of Common Pleas of Northampton County,
*to remove the record of an action brought in that court by r*7
Daniel Kleckner against the county of Lehigh.

The plaintiff, on the 19th day of September 1840 sued out of the
Court of Common Pleas of Northampton County, a writ of summons
against the defendant, returnable the third Monday of November
thereafter, on which day the writ was duly returned by the sheriff,
thus endorsed : " September 19 1840, summoned Philip Person,
personally, this day, by reading the within to him. November 3
1840, summoned Timothy Weiss, by reading the within to him, and
also handed him a copy of the same the said Person and Weiss
are said to be two of the commissioners of Lehigh county. So
answers Hiram Yard, sheriff."

On the 17th of November 1840, upon the motion of Mr. Jones,
as counsel for the defendant, and upon reading and filing the fol-
lowing affidavit of Timothy Weiss, to wit : " Timothy Weiss being
duly sworn according to law, deposes and says that he was not, on
the 4th of November 1840, a commissioner of the county of Lehigh,
not having sworn or subscribed an official oath required by law,
nor having acted or officiated as county commissioner," the court
granted a rule on the plaintiff, to show cause why the service of
the writ should not be set aside.

The argument upon this rule came on to be heard on the 26th
of November 1840, when the following depositions, in support of
the motion, were read and heard by the court :

" Josiah Rhodes, being duly sworn, saith that he is clerk of the
commissioners of Lehigh county, and has been such for more than
three years last past. It is customary, in Lehigh county, to admin-
ister the oath of office to the commissioners-elect on the first Monday



67 SUPREME COURT [Dec. Term,

[Kleckner v. County of Lehigh.]

in November ; and the board met on that day, but Mr. Weiss was
not present ; nor has he, as yet, taken the oath of office, nor in
any way acted as county commissioner. Rev. P. Weiss, of Bethle-
hem, an uncle to the said Timothy Weiss, was buried on the first
Monday of November, which was said to have been the reason of
the absence of Timothy Weiss at the meeting of the board of com
missioners on that day. The board then adjourned, and fixed the
30th of November instant, as the day on which Mr. Weiss should
be qualified, and commence acting as commissioner of Lehigh



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