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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 5) online

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witness infers or conceives in his own mind. He may often form
conclusions founded on misconception. It is for the jury to make
v. 43 2D



338 SUPREME COURT [Harrisburg

[Given v. Albert.]

the inference, and to that end the premises must be laid before
them, and not the inference or understanding of the witness.

The second, third, fourth and fifth errors are in admitting evi-
dence of statements and letters by James Given, in relation to
dealings with other persons than the plaintiffs, in the years 1829,
1830 and 1832, tending, as is alleged, to show a partnership
between him and Samuel in the carpet factory and hardware store.
If they were any, even the slightest evidence to that effect, they
were admissible, and the jury, under the direction of the court,
were to judge of their effect. Some expressions are to be found
in them of that nature, though by themselves they would seem to
amount to but little. They were, therefore, properly admitted.

I pass over the sixth bill for the present, and come to the seventh.
The defendants offered a promissory note drawn by Samuel Given,
dated Baltimore, 9th November, 1829 to show that Samuel Given
was on that day in Baltimore, and thus impair the evidence given
by the plaintiff, that James Given on that day made the present
purchase in Baltimore. We do not think this is evidence of the
fact. It might be better proved otherwise, and the note might be
dated in Baltimore, though actually drawn elsewhere. There was
no error in this rejection.

Samuel Given, one of the defendants, in his own right, and also
as executor of James Given, was offered as a witness on his own
behalf, evidence being first tendered of his final discharge under
the Bankrupt Act, and the offer was renewed after the plea of
discharge as a bankrupt. He was rejected, and we think properly.
No authority has been cited that goes so far as to say, that a
defendant while a party on the record, litigating the case, was
ever admitted as a witness in his own behalf, when objected to by
the plaintiff. Could the defendants have had his name struck off
from the record on the plea of bankrupty, the end might have been
attained so far as respects the suit against him in his individual
right; but this was not asked for, perhaps for sufficient reasons,
and therefore he still remained a party to the suit and liable to
the costs accrued from the time of his discharge. As executor
also, the same state of things continued : nor is it easy to see any
ground on which his name as executor could be struck off, without
the plaintiffs' consent, even though he became a bankrupt during
the trial : for his office of executor still continued, and as such, the
case must proceed against him, and he must continue a party.
There was no error we think in this.

The transfer of the goods was evidence as part of the res gestce
on the question whether or not the defendants were partners. It is
true, circumstances subject it to the charge of being fraudulently
concocted by the parties after its date, and after claims were fore-
seen. But this is matter of comment to the jury, bearing on the
good faith and honesty of the instrument, not on its competency.
As to its proof, as the witness, Robert Given, became interested



May 1843.] OF PENNSYLVANIA.

[Given v. Albert.]

after its date and ostensible execution, the defendants ought not
thereby to lose the evidence. Proof of his handwriting and that
of the parties would be sufficient prima facie for its being read in
evidence, and circumstances of suspicion to the contrary, are mat-
ters of evidence or argument for the plaintiff.

It is apparent, however, to any one who peruses this record,
that the turning point of the case was the evidence given by Worde-
baugh, going to show the circumstances of the sale of the goods
by the plaintiff. Without that, the other evidence to make out the
partnership would, perhaps, not have availed. Now the defend-
ants would be liable as partners, if a partnership really existed at
the time of this sale, though unknown to the plaintiffs or if the
plaintiffs at the time of the sale were induced to believe such a part-
nership existed, and they sold the goods on the faith of such asser-
tions and conduct, although, in fact, there was no such partnership.
The first question is merely a matter of fact for the jury on the
evidence. The second is a distinct question ; and we are of
opinion, that the conversation of James Given, as proved by Worde-
baugh, contains nothing that could justify the plaintiffs in believ-
ing a partnership existed ; on the contrary, when he told them to
charge them either to himself or Samuel, he gave them the option
to charge one or the other, and the plaintiffs making their choice
to charge Samuel, were bound by it. There is nothing amount-
ing to an assertion of partnership, but rather the reverse. We
think the court erred in their charge in those parts of it in which
they told the jury, that the defendants were liable as partners if
the jury believed the testimony of Wordebaugh, whether a part-
nership actually existed or not.

The only remaining question is, as to the right of the plaintiffs
to proceed against Samuel Given, the survivor of the alleged part-
ners and the executors of James Given, in a joint suit. Whatever
a court of equity might be able to do in such a case, yet it seems
to us, the difficulties attending a common lawsuit render it im-
practicable to carry the doctrine of Lang v. Keppele to this extent.
A joint judgment cannot be rendered because the executors are
not personally liable, although Samuel Given is. Two separate
judgments against defendants in a joint action of assumpsit are
unknown, and would be too questionable an innovation. The
voluntary appearance of the executors is no more than a waiver
of a scire facias: it cannot be considered as an agreement to be
liable out of the usual mode. It seems to us, that the executors
could be reached, on this ground, only by a new suit against
them, founded on the insolvency of the surviving partner : and
that the difficulty founded on the lapse of time would be relieved,
for one year, by the second section of the limitation Act of 1785.

Judgment reversed.



340 SUPREME COURT [Harrisburg



Manifold's Estate.

A father being surety for his son, died intestate leaving real estate, which was
sold by his administrators for the payment of debts ; upon a question of distribu-
tion of the balance after payment of debts, it was held that a judgment creditor
of the son was not entitled to any part of the fund by reason of his lien on the
land ; the liability of the intestate for his son being greater than his distributive
share.

THIS was an appeal from the decree of the Orphans' Court of
York county. John Manifold in his lifetime became the surety
in a note of his son Henry to Robert Smith, upon which a judg-
ment was entered against both. He then died intestate, leaving
his son Henry and several other children. On the 6th of February
1838, Robert M'Donald and wife obtained a judgment against
Henry Manifold for $200 : after which, the administrators of John
Manifold sold the real estate of the intestate by an order of the
Orphans' Court for the payment of debts. Out of the proceeds of
this sale the administrators paid the debt of Robert Smith : and
after the payment of all the debts of the intestate there was a
balance in their hands for distribution among the heirs. M'Do-
nald and wife claimed by virtue of their lien upon the interest of
Henry in his father's land to receive the amount of their judgment
out of his distributive share. This was resisted by the other
parties in interest, on the ground that the liability of the father for
his son, which was discharged by the administrators, exceeded the
amount of his distributive share. The court below (DURKEE,
President) decreed that M'Donald and wife were not entitled to
any part of the fund.

Fisher, for the appellant, argued that M'Donald and wife's judg-
ment was a lien upon the share of the real estate which descended
to the son upon the death of the father; and that the administra-
tors were bound to discharge liens, that the purchaser might have
a clear title. 1 Watts 309 ; 8 Serg. $ Rawle 315 ; 3 Watts 320.

Mayer, contra, contended that M'Donald could not be in any
better situation than the son himself; he stood but in the nature
of an assignee of his interest in his father's estate, and that interest
was subject to all the equities which existed between the estate
and the heir. 2 Yeates 324.

The opinion of the Court was delivered by
ROGERS, J. John Manifold died intestate. In his lifetime he
became his son Henry's surety in an amount exceeding Henry's



May 1843.] OF PENNSYLVANIA. 341

[Manifold's Estate.]

purpart of the estate, and this the administrators since the death
of the intestate, have been compelled to pay. The real estate was
sold by order of the Orphans' Court for the payment of debts, and
the surplus is now in court for distribution. Before the sale, a
judgment was rendered against Henry, which the appellant con-
tends should be paid out of his share of the estate. If the contest
was between the other distributees and Henry, it would not admit
of a reasonable doubt, that the latter was entitled only to what
remained after deducting the amount paid by the administrators
on his account, which in the case in hand is nothing at all. But
the appellant can be in no better situation than his debtor ; for a
creditor, although he pursues his debt to judgment, cannot, as
against the other distributees, better his condition. He succeeds
to the rights of his debtor, and nothing more; and as the adminis-
trators may retain against Henry, for the same reason they may
set off the debt they have been compelled to pay against his creditor.
A judgment creditor is not a purchaser; but aside of this objec-
tion, which would be conclusive against the appellant, a purchaser
of the real estate would be liable to the same equity in favour
of the other distributees ; for it would be his duiy to inquire into
the debts of the deceased, and he must purchase at the risk of
discharging all liens arising in favour as well as against the estate.
It matters not, that the debt was paid since the death of the intes-
tate, as it was a contingent liability of his, and on payment of the
debt by the administrators an equity arises, which relates back
to the time of the death of the intestate, and this equity cannot be
disturbed by any act of the distributees, nor can it be displaced
by a subsequent judgment obtained by his creditors. A purchaser
can acquire only the interest of the heir, whatever that may be
ascertained to be after final settlement of the estate, deducting
contingent as well as immediate liabilities. In conclusion, I must
remark, that there is no reason to doubt that the intestate was but
surety for the debt. From this it results, that it is but common
justice that Henry's creditor should not be permitted to partici-
pate in the fund to the injury of the other heirs or of the creditors
of the intestate.

Decree affirmed.



v. 2o*



342 SUPREME COURT [Harrisburg



Deckert's Appeal.

Money, for the amount of which a judgment was recovered by a proceeding in
court, being claimed by different persons, the defendant, without any rule or order
of court, paid it to the Prothonotary, to be disposed of by the court. Held, that
such payment was to the officer in his official capacity, and the sureties in his
official bond were liable for the faithful application of it.

THIS was an appeal by Elijah Deckert from the decree of the
Orphans' Court of Berks county. The opinion of the court con-
tains a full statement of the case.

Strong, for the plaintiff in error, argued that the proceedings of
the court did not exhibit any controversy about the fund ; hence
there was no necessity for an order or rule by which it was brought
into court, nor was any such made. The defendants in the judg-
ment, who were a corporation, were willing to pay the money and
let the parties contend for it between themselves, and for this pur-
pose they selected Mr Addams, the prothonotary, and paid it to
him, as a mere stakeholder, without either the consent of the liti-
gant parties or the court. We say, therefore, that Mr Addams
had no power to involve the court as a depository of the fund,
when they had nothing pending before them by which they could
make a disposition of it ; and therefore he received it in his private
capacity, and is not liable on his official bond.

Smith and Hoffman, contra. The recovery of the money was by
a proceeding in court, and in all cases, the court have the control
over the judgment recovered, so as that it shall be made available
to the person entitled to it, who is not always the party plaintiff.
Here the money was paid in discharge of the judgment ; it was
paid into court, and noted upon the record of the court, which is
notice to the world of its entire efficacy to discharge the debt.
What, then, is the value of the official bond of the officer, if it do
not protect parties under such circumstances ?

The opinion of the Court was delivered by

ROGERS, J. James Lewis made his last will and testament, and
among other things, devised in fee-simple to his sons James and
Curtis a tract of land in the county of Berks, charged with the
payment of certain legacies, to which the present claimants are
entitled. James conveyed his moiety of the tract to his brother
Curtis, and Curtis filed a petition in the Court of Common Pleas
of Berks county, claiming damages from the Schuylkill Naviga-



May 1843.] OF PENNSYLVANIA. 343

[Deckert's Appeal.]

tion Company for an injury done by the company to the land. An
inquisition was had, and the inquest assessed the damages at $2500.
An appeal was entered, and the parties compromised for $2000,
which was paid by the company, as appears on the record, in the
following manner : " January 10th 1825, the sum of $2000 paid by
Samuel Baird and Charles Evans, Esq., counsel for the defendants,
to John Addams, prothonotary, to be disposed of as the court
directs." The reason this money was so paid was, that the lega-
tees claimed the whole or the right to participate in the fund, and
because it would be unsafe to permit it to be paid to the owner
of the land, who was insolvent. Nothing can be plainer than that
the money was paid into court by the counsel, and received by
Addams in his official capacity, as the legal organ of the court.
The entry on the record clearly shows this, and such seems to
have been the understanding of all engaged in the transaction.
Nor would there have been any doubt of this fact, if the present
state of things could have been anticipated ; for there is no motive
for the conduct of those who were intrusted with the management
of this business, nor can it be explained on any natural principles,
or any other supposition. The money is subject to the disposition
of the court, which is inconsistent with the idea that it was depo-
sited with the prothonotary as a common stakeholder ; as, on that
hypothesis, it would not be under their control.

Two objections have been urged against the decree by which
the legatees are permitted a pro rata share of the assets as spe-
cialty creditors. 1. That the court had no power to order the
money to be paid into the court : and 2. That the money was paid
without a rule or any authority from the court. It must be admit-
ted that the business has been conducted with very little regard to
form ; and were it not from the circumstances attending the case,
both objections would be decisive. But, let it be observed, this
case does not come within the class of cases at common law,
which regulate the practice of bringing money into court. Those
are cases of contract, and do not apply to damages for injuries in
the nature of a nuisance or a trespass. Tidd's Prac. 672. This
case has a much wider base, for it takes its rise from the equitable
power of the court, and is indispensable, to prevent injustice.
The owner of the land, who was insolvent, had the legal right to
receive the money from the company, and payment to him would
have been a good payment without notice of the equitable inte-
rest. But although he was the owner of the land, yet in respect
to the legacies charged on the land, he was a trustee for others
who had an equitable lien on the money. Their rights would have
been destroyed if the money had been suffered to pass into his
hands. It therefore comes under the head of preventive justice;
a beneficent and highly useful branch of chancery jurisprudence.
As a Court of Chancery would restrain the company from paying
the money over to the insolvent owner of the land, so, upon the



344 SUPREME COURT [Harrisburg

[Deckert's Appeal.]

same principles, and for the same reason, our court, clothed with
chancery powers, exercised without scruple this necessary autho-
rity. It does not certainly appear that the money was paid to the
prothonotary in pursuance of a rule of court. It is very likely no
rule was obtained, or no motion made; but if a party does volun-
tarily what he may be compelled to do, it is good. This procedure
was intended for the benefit of all parties. All have acquiesced
in it, at least we have no complaint from any quarter. The money
is at the disposal of the court, which it would not be if the protho-
notary is to be considered a common stakeholder. The claimants
of the money have been diligently pursuing it ever since it was
paid to the prothonotary, and have been anxious to prevent it
from going into the hands of Curtis Lewis or his assignees. Reese
v. Addams, (16 Serg. fy Rawle 40).

It remains to be observed, that money so paid must, from the
necessity of the case, be received by the prothonotary, who is the
officer of the court, and who alone can be its depository. Unless
he receives it, it must be received by the court itself, which cannot
be tolerated. And, in accordance with this, is the invariable
practice. In some counties, where it is convenient and safe, the
custody of money paid is regulated by rules of court, which re-
quire that the money be deposited in the name of the prothonotary,
in some designated bank, subject to his order, countersigned by
the court and allowed by them. But this practice, it is very
obvious, cannot prevail in all the counties, for want of a convenient
place to keep the money ; and hence it follows that the prothono-
tary must be the depository in his official capacity. It is one of
the duties of his office, for which he and his bail must be liable ;
for the condition of the bond is, that he will well and truly, and
in all things execute and perform the duties of his office. The
appellees, therefore, to whom the money was adjudged, having a
remedy on the official bond of the prothonotary, must be viewed
in the light of specialty creditors, and, as such, they are entitled
to a pro rata dividend of the fund.

Decree affirmed.



May 1843.] OF PENNSYLVANIA. 345



Commonwealth against Parr.

Upon the trial of a defendant charged with a criminal offence, he may demur
to the evidence, but the Commonwealth will not be compelled to join in the
demurrer.

In an indictment for fornication and bastardy, the witness testified, " He forced
me ; he worked himself under me, and in that way forced me : I did not give my
consent." Upon a demurrer to this evidence it was held, that it was not such
as would merge the offence charged in the crime of rape, but that the defendant
might be legally convicted.

WRIT OF ERROR to the Quarter Sessions of York county.

The Commonwealth against Rufus Parr. This was an indict-
ment for fornication and bastardy, in which the mother of the child
thus testified : " Rufus Parr is the father of my child ; it is a girl ;
it was at Polly Parr's where the child was begotten, in this county;
it was born there. He forced me ; he worked himself under me,
and in that way forced me : I did not give my consent. On the
chair he did it to me ; on that chair he penetrated me." To this
evidence the defendant demurred, and the Commonwealth joined
in the demurrer. The court below was of opinion that the lesser
offence charged was merged in the crime of rape, and that the
defendant could not be convicted.

Campbell, for the Commonwealth, argued, that in an indictment
the Commonwealth was not bound to join in a demurrer to evi-
dence, but that the true course was for the jury to find the facts
specially, upon which the court might render such judgment as
they would justify. 1 Stark. Ev. 434. But here the case was
perfectly made out, and the defendant could not, afterwards, by a
cross-examination, make out for himself a higher offence, and merge
the effect of the case proved. 7 Conn. Rep. 54 ; 16 Serg. fy Rawle
77 ; 2 Watts $ Serg. 506 ; 2 Caines's Rep. 178.

Ramsay, for defendant in error. A writ of error will not lie to
review the decision of the Quarter Sessions upon a demurrer, no
more than it would to their decision upon the admissibility of evi-
dence. 3 Salk. 155; 2 Barn. # Cress. 434; 1 Chit. Crim. Law
623. But the commission of a felony merges the misdemeanor.
3 Black. Com. 119; 1 Russ. on Crimes 563; 1 Chit. Crim. Law
816, note.

The opinion of the Court was delivered by
KENNEDY, J. The defendant was indicted under our Act of
Assembly for fornication and bastardy, committed with Rebecca
v. 44



346 SUPREME COURT [Harrisburg

[Commonwealth v. Parr.]

Trone. On the trial, upon an issue joined on the plea of not
guilty, the defendant, after the Commonwealth had given all her
evidence to support the issue on her part, demurred thereto, and
the counsel for the Commonwealth joined in the demurrer; upon
which the court discharged the jury, and, after hearing the counsel
on both sides, rendered a judgment in favour of the defendant. It
was no doubt competent for the defendant to demur, as he did, to
the evidence ; but it was not in his power to compel the Common-
wealth to join in the demurrer. Her counsel might have exercised
his own discretion in this respect, and joined or not as he pleased.
Baker's Case, (5 Co. 204) ; S. C. Cro. Eliz. 753. In cases, how-
ever, where the Commonwealth is not a party, the law is different.
There, if a matter of record or other matter in writing be offered
in evidence in support of an issue joined between the parties, the
adverse party may insist upon the jury being discharged from giv-
ing a verdict, by demurring to the evidence, and obliging the party
offering the evidence to join in the demurrer. The latter cannot
refuse to join in demurrer ; he must join, or waive the evidence.
So if the evidence given be parol and certain, he must join in the
demurrer, because there cannot be any variance in it more than
there can in that which is in writing, which seems to be the reason
given in Baker's Case, for the party, who has given the evidence,
being obliged to join in the demurrer. Cro. Eliz. 753 ; Gibson v.
Hunter, (2 H. Bl. Rep. 206). But where the parol evidence offered
is loose and indeterminate or circumstantial, the party offering it
is not bound to join in a demurrer to it, unless the party who
demurs will first admit the evidence of the fact to be true, where
the evidence offered to prove the fact is loose and indeterminate,
or will admit the existence of the fact itself, where the evidence
offered to prove it is circumstantial. Gibson v. Hunter, (2 H. BL
Rep. 206-7), and Baker's Case before cited. From these authori-
ties it will also be seen that the court may, if they think fit, over-
rule the demurrer at once, and direct that the evidence shall be
submitted to the jury for them to pass on the fact. In the case,
however, under consideration, the court sanctioned the demurrer,
and the Commonwealth joined in it, without any distinct admis-
sion being required from the defendant to be placed on the record
of the fact, which the evidence demurred to conduced to prove.

This would seem to make it proper to inquire, first, whether the
evidence given was sufficiently certain in and of itself to enable
the court to discharge the jury, and to render a judgment, either
for the plaintiff or the defendant, without the intervention of the
jury. We are inclined to think that the evidence was not alto-
gether so loose and indeterminate as to make it necessary to require
from the defendant any admission of the truth of the evidence, or
of the fact which it tended to prove, other than is implied in his
demurrer, to enable the court, without the aid of the jury, to pass
upon the guilt or innocence of the defendant in respect to the



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 5) → online text (page 40 of 69)