Pennsylvania. Supreme Court.

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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county. It was also understood by the board of commissioners
convened on the first Monday of November, that Jacob Derr, in
whose place Mr. Weiss was elected, should continue to act as com-
missioner until the 30th of November instant. All that deponent
can say positively of his own knowledge, is, that there is no copy
of the oath of office filed in the commissioners' office, and that he
has not acted as commissioner to my knowledge. After I learned
*ao-] that the *summons had been served upon Mr. Weiss, I told
J Mr. Person, one of the other commissioners, that it was well
he was not sworn in. On the 2d of November instanb, the board
of commissioners adjourned till the 30th of November, at which
time it was understood Mr. Weiss is to be sworn into office. Mr.
Timothy Weiss has not acted as commissioner of Lehigh county,
as yet, nor has he sworn or subscribed his official oath, to the best
of my knowledge and belief. Had Mr. Weiss been sworn in I
must have known it, for I am commissioners' clerk.

" Charles S. Bush, being duly sworn, saith that he is the clerk
of the Court of Quarter Sessions of Lehigh County, and has been
such for more than one year last past. That Timothy Weiss, the
commissioner-elect of said county, has not filed in the deponent's
office, nor has any one for him, filed the oath or affirmation pre-
scribed by law to be administered to the said Timothy before enter-
ing upon the duties of his office as county commissioner of said
county." Cross-examined. " Timothy Weiss was duly elected a
commissioner of Lehigh county on the second Tuesday of October
1840, in the place of Jacob Derr, whose term of office then ex-
pired."

The court, Banks (President), ordered the rule to be made abso-
lute, and delivered the following opinion.

" This motion is made to set aside the service of the writ as not
having been legal. The summons was served upon Mr. Person on
the 19th of September 1840. It is admitted that Mr. Person was,
at the time of said service, one of the commissioners of the county.
It was served on the 3d of November 1840, on Weiss, who had
been elected one of the commissioners of the county, but who had
not taken the oath of office, nor entered upon the duties of his
office. Was the service upon Weiss a legal service, and such as to



1840.] OF PENNSYLVANIA. 68

[Kleckner . County of Lehigh.]

bring the corporation into court? The law declares that every
county commissioner, before he enters upon his office, shall take an
oath of office. The county now moves to set aside the service
because Weiss was not sworn, and had not entered upon his office.
Was he either a commissioner de jure or de facto f If he was not,
the county was not to be brought into court by a service on him.
He was not de jure a commissioner, for he had not conformed to
the requirements of the law. He was not an officer de facto, for
he has not acted at all. The acts of an officer de facto are valid
as far as regards the public and strangers who have an interest in
the acts done. In such case it is sufficient that the officer came into
office under color of right, and is in the actual discharge of its
duties. Here Weiss was a commissioner elect, but was not an
officer either in law or fact. The law requires the oath of office as
a prerequisite to his doing any act ; and the county have a right to
refuse to be bound, or in any way affected by the service of the
*writ upon him. This is the proper time to take advantage r*aa
of this irregularity. I think the objection is a valid one, -
and that the service on Weiss must be set aside. Was the service
upon one commissioner a legal service ? The law provides that
process against a county shall be served upon the commissioners
thereof. The words used in the law indicate a service as necessary
upon more than one commissioner. They would indeed compre-
hend all three commissioners. I do not, however, hold a service
upon all as essential to its validity. Two form a quorum, and may
do all things which the law enjoins. The act of two binds the
county. Therefore, a service upon two, in my opinion, would be
sufficient. Two might conduct the defence. One commissioner
cannot do any act to bind the county. He could not give a bond
or judgment that would have binding efficacy against the corpora-
tion. If one could not confess judgment, it would appear to fol-
low, that a party could not obtain a valid judgment against the
county, by a service upon one, when it was taken by default.
Every judgment by default is taken as if by confession. It would,
however, in all cases of a service upon one, be prudent on the part
of the county, to move to have the service set aside. I think the
words of the act of assembly require the service of a summons to
be made on more than one commissioner. The whole scope of
authority is committed to not less than two in number. Indeed,
one cannot bind the county either directly or indirectly in anything.
I do not think that a party can get any obligation against a county
by anything that he may do with one commissioner. I think this
holds equally good as to the service of process as it does to direct
negotiation. It does not appear that Mr. Weiss did anything that
was either dishonest or dishonorable in this matter. The commission-
ers had met but once between the election and the time of the ser-



69 SUPREME COURT \I)ec. Term,

[Kleckner v. County of Lehigh.]

vice. On that day a near relative of his was buried, and Mr. Weiss
attended the funeral. Surely, neither law nor decency could cast
censure upon this conduct. It was in accordance with his own feel-
ings that he attended the funeral, and it was in accordance with the
sense of propriety of the whole community that he should. There
is nothing in the case that satisfies me that Mr. Weiss delayed tak-
ing the necessary qualification, with a view either to evade or make
void the service of this process. There is nothing in his conduct
that would subject him to penalty or the county to liability. The
service was not sufficient to bring the county into court if it
objected to it as irregular. That objection has been made, and in
my opinion sustained. The service of the summons is therefore
set aside."

The plaintiff took a writ of error upon the judgment.

Mr. Porter for the plaintiff in error, cited, Warden v. Tainter,
v. Watts 274; Blythev. Richards, 10 S. & R. 266: Ciller v. Roberts,
* 7m 13 Id. 66 ; Riddle v. Bedford Co., 2 *Id. 392 ; Keyset
v. Commonwealth, 2 Rawle 139 ; The People v. Collins, 7
Johns. Rep. 554 ; Fowler v. Beebe, 9 Mass. Rep. 235 ; Mclnstry
v. Tanner, 9 Johns. Rep. 135 ; Commonwealth v. Fowler, 10
Mass. Rep. 301 ; Bucknam v. Ruggles, 15 Id. 181.

Mr. Jones and Mr. Gibom for the defendant in error, referred to
the acts of the 15th of April 1834, and the 13th of June 1836 ;
and argued that the service of the writ ought to have been made
on all three of the commissioners ; and at all events that Weiss was
not a commissioner at the time the process was served.

The opinion of the court was delivered by

ROGERS, J. The legality of the service of the writ, as it ap-
pears in the sheriff's return, is not noticed in the opinion of the
court, although it is the point mainly relied on in the argument
here. Strike out the words "said to be " from the return, and the
service is absolute and positive on two commissioners ; and in that
case the court cannot discharge the county on motion, but will
leave them to their remedy by action against the sheriff; or possi-
bly relief may be had by a plea that they, or one of them, was not
the qualified commissioner of the county at the time the writ was
served. In Mentz v. Hamman, 5 Whart. 150, words of similar
import were stricken out as surplusage, and the return held to be
conclusive so as to preclude evidence to contradict or explain it.
It cannot be endured that a sheriff can shield himself from respon-
sibility by the use of words of an indefinite character, such as
" said to be," or " as he understands," or " as he has been informed."



1840.] OF PENNSYLVANIA. 70

[Kleckner p. County of Lehigh.]

The sheriff cannot complain of this, as in a proper case he can
claim an indemnity so as to protect himself from any loss that may
arise in the discharge of his official duty. As the return must be con-
sidered absolute and conclusive between the parties to the action,
the court erred in setting aside the service of the writ by the intro-
duction of extraneous proofs. This view of the case would answer
the purpose of the plaintiff in error, but some points have been
raised which are important in practice, and which I shall briefly
notice.

It is said the return is defective, because the sheriff omitted to
leave a copy with one of the commissioners. There is nothing in
this objection. A writ of summons may be executed by reading it
in the hearing of the defendant, as was done here. A copy is
required to be left with him only, when, instead of reading it to him,
he gives him notice of the contents, or where the defendant cannot
be conveniently found. The disjunctive conjunction, or, plainly
shows that this is the true reading of the act.

The act of the 15th of April 1834, which gives to counties and
townships the capacity of bodies politic, directs, that in all suits
against them, process shall be served upon and defence made by
*the commissioners and supervisors. Although the plural r*T\
commissioners is used in the act, yet it would not be too
liberal a construction to hold, that a service on one is good, red-
dendo singula singulis, and in analogy to the practice as to execu-
tors and trustees, where service on one is good as to all. It is not
without precedent that the same words in an act have received dif-
ferent constructions when applied to a different subject-matter. It
is difficult to perceive any very good reason why the legislature
should require the service of process on more than one, where the
only object is to bring the county into court. But be this as it may,
yet the service on two is good, and is so held by the Court of Com-
mon Pleas, although, be it remarked, as much against the letter of
the act as the service on one, because, as they justly say, it is
within the scope of legislative intention. We are also of the opinion
that the service of process on a commissioner who has been elected,
but not sworn, is sufficient; and that such a service cannot be
defeated by a delay to take the oath directed by the constitution.
The acceptance of the office is presumed. He is commissioner,
whether de facto or de jure is immaterial, from the time of the
election ; unlike some other cases which might be named, where
the incumbent holds over until his successor is duly elected and
qualified. So far as the officer himself is personally concerned, the
oath is required ; but it is not so as to third persons, who may not
be cognisant of the fact that he has omitted to do what the law
directs. And this is the reason of the distinction taken in all the
cases cited. The legal presumption is strengthened by the fact,



71 SUPREME COURT \JDec. Term,

[Kleckner . County of Lehigh.J

that, since the action of the court, the commissioner has been duly
sworn, and has entered on the duties of his office ; and this may be
regarded as a practical illustration of the propriety of this construc-
tion of the act.

We intimate no opinion whether a county or township is amen-
able to the jurisdiction of courts held in other counties. 1

Judgment reversed, and the cause remanded for
further proceedings.

|| ' Actions against municipal corporations must be brought where they are
located: Oil City . McAboy, 24 Smith 249. ||

Cited by counsel, 7 W. & S. 66 ; 4 P. F. Smith 92. || 30 Id. 160. ||
Cited by the court, 4 Barr 501 : 2 Parsons 288. ||As to the practice to
move to set aside a sheriff's return where the service was defective, Fillman's
Appeal, 3 Out. 289, s. c. 11 W. N". C. 196 ; when the return, on its face, is
according to law, it is conclusive between the parties : Benwood v. Hutchin-
son, 12 W. N. C. 497-H



*72] *[PHILADELPHIA, JANUARY 11, 1840.]

Campbell against Gilbert.

IN ERROR.

A testator made the following provision : " And it is also my will that G.
L. shall pay $755.56 to my wife E. ; it being her dower in the plantation
that I sold to G. L." And then after certain other bequests and devises, he
added, '' My executors shall take so much money out of the estate that I
have not disposed of, and loan it on interest, so that the interest accruing
from said money, and the interest of my wife's dower, will make the yearly
income of $100, which my executors shall pay to my wife in two equal half-
yearly payments." The testator held a bond of G. L. with condition to pay
to him, his executors, &c., the sum of $45.33, yearly during the life of his
(the testator's) wife E., and at her decease the further sum of $755.56.
Held, that the widow E. was entitled to the sum of $755.56 absolutely, and
not merely to the interest of it.

THIS was a writ of error to the Court of Common Pleas of
Montgomery.

In the court below an action was brought by Joseph Campbell,
executor of the last will and testament of Elizabeth Fisher, deceased,
against Israel Gilbert, administrator cum testamento annexo of
Christian Fisher, deceased, and a case was stated for the opinion
of the court as follows :

Christian Fisher, late of the township of Springfield, in the
county of Montgomery, by his last will and testament, dated the
13th day of May, A. D. 1824, duly proved on the 23d day of July,
A. D. 1825, and recorded in the register's office at Norristown, in
said county, appointed Henry Scheetz, Jr., and Christian Fisher,



1840.] OF PENNSYLVANIA. 72

[Campbell . Gilbert.]

(his son) executors thereof, who took upon themselves the burden
of its execution. The said Christian Fisher, the executor, is now
dead ; and the said Henry Scheetz, Jr., was bj a decree of the
Orphans' Court of Montgomery county, on the 23d day of May,
A. D. 1839, dismissed from his trust; and on the 1st day of July,
A. D. 1839, *Israel Gilbert was appointed by the register of r^yo
wills of said county, administrator, &c., with the will an- L
nexed, of the said Christian Fisher the testator. By his said will,
the said Christian Fisher, among other things bequeathed and
directed as follows, to wit: "And it is also my will that George
Lindenberger shall pay seven hundred and fifty-five dollars and
fifty-six cents to my beloved wife Elizabeth, it being her dower in
the plantation that I sold to said George Lindenberger ;" and " My
executors hereinafter named shall take so much money out of my
estate that I have not disposed of and loan it on interest ; take suf-
ficient security for the same, so that the interest accruing from said
money, and the interest of my wife Elizabeth's dower will make
the yearly income of one hundred dollars, which my executors
hereinafter named shall pay unto my wife Elizabeth in two equal
half yearly payments," as by the said will, a copy whereof is here-
unto annexed, more fully appears. Elizabeth Fisher, the widow of
said testator, died, leaving a will, dated on the 22d day of July,
A. D. 1838, which was duly proven and recorded in the office of
the register of wills of the city and county of Philadelphia, wherein
she appointed Joseph Campbell, sole executor thereof, who took
upon himself the burden of the execution of the trust. George
Lindenberger made his last will and testament on the 23d day of
April, 1836, which was duly proven on the 21st day of November,
in the same year, whereby he appointed his wife Ann, and Dr.
George Martin, and Charles P. Fenton his executors, who also took
upon themselves the execution of the will. The said George Lin-
denberger in his lifetime gave to the said Christian Fisher a bond
dated the 13th day of March, A. D. 1813, in the penalty of fifteen
hundred and eleven dollars and twelve cents, the condition of which
is as follows, to wit : " That if the above bounden George Linden-
berger, his heirs, executors, administrators, or any of them, shall
and do well and truly pay or cause to be paid unto the above named
Christian Fisher, or to his certain attorney, executors, administra-
tors, or assigns, the just sum of forty-five dollars and thirty-three
cents, lawful money as aforesaid, yearly and every year, on the first
day of April, from and after the first day of April next, for and
during the natural life of his present wife Elizabeth Fisher, the
first annual or yearly payments thereof, to begin and be made on
the first day of April, in the year one thousand eight hundred and
fourteen, and at her decease the further sum of seven hundred and



73 SUPREME COURT [Dec. Term,

[Campbell v. Gilbert.]

fifty-five dollars, and fifty-six cents, lawful money as aforesaid, and
that without any fraud or further delay, then," &c.

The said Israel Gilbert, administrator with the will annexed of
the said Christian Fisher, claims to be paid by the executors of the
said George Lindenberger, the amount of the said bond, to wit, the
sum of seven hundred and fifty-five dollars and fifty-six cents ; and
the said Joseph Campbell, executor, &c., of the said Elizabeth
Fisher, also claims to be paid by the same executors the amount of
*74-i the said *bond. Now, in order to determine the whole diffi-
J culty, and to relieve the executors of the said George Lin-
denberger, the question for the decision of the court is, whether
under the circumstances the said Elizabeth Fisher was entitled to
the said sum of seven hundred and fifty-five dollars and fifty-six
cents absolutely, or only to the interest thereof during her natural
life.

If the court should be of opinion that she was entitled to it abso-
lutely, then judgment to be entered for the plaintiffs ; but if not,
then judgment to be for the defendant. The judgment is to be in
the nature of a special verdict, from which either party shall have
the right to a writ of error from the Supreme Court.

And it is hereby agreed by the said executors of George Linden-
berger, that the said judgment of the court in this case shall bind
them in the same manner as if a judgment had been recorded
against them in the said court upon the said bond, by the party in
whose favor this judgment shall be given.

It is further agreed, that there are endorsed upon the said bond,
receipts of interest due thereon, signed by Henry Scheetz, Jr., exe-
cutor of Christian Fisher, from April 1, 1824, to April 1, 1839."

The will of Christian Fisher, which was appended to the case,
was as follows :

"In the name of God, Amen: I, Christian Fisher, of the town -
ship of Springfield, in the county of Montgomery, and state of
Pennsylvania, though reduced to a low state of bodily strength, yet
being of sound mind, memory, and understanding, and considering
the uncertainty of this transitory life, have thought fit to make this
my last will and testament, in manner following : that is to say
first, I recommend my soul into the hands of God, and my body I
recommend to the earth ; and respecting the wordly estate and
effects, wherewith it hath pleased God to bless me, I dispose of
them in the following manner, that is to say, it is my will, that my
just debts and funeral expenses be paid by my executor hereinafter
named, as soon after my decease as conveniently may be ; and that
as soon as possible a true inventory and appraisement may be taken
of all my movables and effects, outstanding debts and further per-
sonal property : Item, I give and bequeath to my beloved wife Eliz-
abeth, the house and lot I now occupy, and all the apples of three



1840.J OF PENNSYLVANIA. 74

[Campbell . Gilbert.]

apple trees for her own use, the one standing adjoining to said lot,
and the other two are white doctor apples standing in the orchard
on my plantation, adjoining said lot ; and all my household goods
and kitchen furniture, during her natural life, if she shall so long
remain my widow ; and after her death or marriage, which should
so first happen, then the house and lot, apples and apple trees. I
give and bequeath unto my daughter, Ann, during her natural life ;
and after her death, to my grandson, Christian Fisher, and to his
heirs and *assigns forever ; and it is also my will that George rayc
Lindenberger shall pay seven hundred and fifty-five dollars '-
and fifty-six cents, to my beloved wife Elizabeth, it being her dower
in the plantation that I sold to the said George Lindenberger. I
give and bequeath unto .my daughter Mary the house and lot she
now occupies, during her natural life ; which said lot she shall keep
in reasonable repair, and after her death or marriage, which shall
so first happen, then in either case, I give and bequeath said lot to
her lawful heirs and assigns forever. I give and bequeath unto my
son, Christian Fisher, all the remainder of my land and houses
during his natural life, except three acres of land in Germantowu
township, Philadelphia county, and such other houses and lands I
have already disposed of. And the said Christian Fisher shall sow
but six acres of winter grain, and shall neither sell nor move hay,
straw, nor manure off the said premises ; the manure not to be
taken out of the barn yard from seeding time till the first of April,
in every year ; and shall keep the buildings and fences in reason-
able repair ; he shall neither cut nor move any wood off said pre-
mises : my son, Christian Fisher, shall have my winnowing mill,
cutting box, and heavy traces, during his natural life, and shall
lend said mill to Mary Lindenberger whenever she shall have use
for a mill to clean her grain : and after the decease of the said
Christian Fisher, I do give and bequeath said remainder of land,
and house with the three acres of land in Germantown township,
and my winnowing mill, cutting box, and heavy traces, unto my
grandson, Christian Fisher, to his heirs and assigns forever. And
I give and bequeath unto my daughter Mary the interest of four
hundred dollars during her natural life, and after her death the
said four hundred dollars to be equally divided among my grand-
children, share and share alike, to them, their heirs and assigns
forever. I do give and bequeath unto my daughter Ann the interest
of six hundred dollars during her natural life, and after her death
the said six hundred dollars to be equally divided among my grand-
children, share and share alike, to them their heirs and assigns
forever. My executor, hereinafter named, shall take so much
money out of my estate, that I have not disposed of, and loan it on
interest ; take sufficient security for the same, so that the interest
accruing from said money, and the interest of my wife Elizabeth's



75 SUPREME COURT [Dec. Term,

[Campbell v. Gilbert.]

dower, will make the yearly income of one hundred dollars, which
my executor, hereinafter named, shall pay unto my wife Elizabeth,
in two equal half-yearly payments. And my executors hereinafter
named, shall loan all my money on interest that I have not disposed
of, he taking sufficient security for the same, till the youngest of
my grandchildren arrives at the age of twenty-one years ; then to
be equally divided between my grandchildren, share and share
alike, to them, their heirs and assigns forever. It is also my will
that if any of my children shall be dissatisfied, and not willing to
abide by my will, then and in that case they shall not receive any
*7fn P art f m J eg tate ; *and I do hereby nominate, constitute, and
J appoint my friend Henry Scheetz, Jr., Christian Fisher, Jr.,
executor of my last will and testament. In witness whereof, I, Chris-
tian Fisher, the testator, have hereunto set my hand and seal, the
13th day of May, in the year of our Lord one thousand eight hun-
dred and twenty-four."

The Court of Common Pleas, on the 2d of October, 1840, ordered
judgment to be entered upon this case for the plaintiff.

A writ of error was then taken.

Mr. Powell, for the plaintiff in error. For some reason one-
third of the purchase-money of the property sold to Lindenberger
was reserved by a bond. It may be inferred that she refused to
sign the deed, and that is the reason why he calls it " dower."
The bond throws light on the meaning of the testator. Though the
first clause seems to give the principal, yet the last clearly shows
that it was not his meaning to give more than the interest for life.
The word "dower" used in the first bequest is explained in the
latter part. The injunction on the executors to take other money
to make up the annuity is strong to show it. Evans v. Davis, 1



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 8 of 75)