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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 8) online

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appears that it has been destroyed by fraud. From the great
anxiety which testators frequently feel to conceal the disposition
of their estates, it would, in a majority of cases, be impossible to
prove their exact contents.

In conclusion, I have to remark that I have examined the seve-
ral bills of exception, and it seems to me that in every case the
evidence ought to have been received. The evidence rejected by
the court has a bearing more or less direct on the factutn of the
revoking will, as well as the imputed fraud in its destruction. On
the whole case we are of the opinion the facts were improperly
withdrawn from the jury, and that the judgment must be reversed
and a venire de novo awarded.

Judgment reversed, and venire de novo awarded.



Caldcleugh against Hollingsworth.

The owner of a chattel in the possession of a tenant which has been distrained
for rent and sold, cannot maintain trover for it against the landlord, where notice
of the distress was given to the tenant.

ERROR to the District Court for the city and county of Phila-
delphia.

This was an action of trover brought by Mark Hollingsworth,
who survived Edmund Tiliston, late copartners under the firm of
Tiliston and Hollingsworth, against Robert A. Caldcleugh, to re-
cover the value of a paper machine or roller. It appeared that the
machine in question was consigned by the plaintiffs, living in Bos-
ton, to a firm in Philadelphia, by whom it was sent in 1840 to
M'Ewen, a machinist, in whose shop it remained a year and a
half or two years without undergoing any repairs, no instructions
having been given for that purpose. While there, it was distrained
for rent on the 10th June 1842 by the defendant. Notice of the
distress was given to the tenant M'Ewen. Five days after this
notice the property was appraised, and afterwards advertised for
public sale on the 22d June, on which day the sale was adjourned



Dec. 1844.] OF PENNSYLVANIA. 303

[Caldcleugh v. Hollingsworth.]

to the 28th. Notice of the first day of sale and adjournment was
advertised in the Daily Chronicle, and notices were posted on the
premises. No one attended at the sale to point out the machine,
nor was any notice given in respect to it. No claim was made
for it till upwards of a year after the sale.

The court below charged the jury that trover lay. Goods left
to be repaired were privileged from distress, and their owner could
maintain this action against the landlord to recover their value.

To this charge the defendant excepted.

Hazlehurst for the plaintiff in error.
Oakford, contra.

The opinion of the Court was delivered by

GIBSON, C. J. Walter v. Rumball is in point that the notice
may be given to the tenant or the owner, at the landlord's discre-
tion ; and that when it has been given to the latter, he cannot
maintain trover. The principal object of notice is to enable, and
indeed compel the proper party to contest the legality of the dis-
tress before the property is sold, and thus to prevent the landlord
from being involved in unforeseen difficulties. By the letter of the
English statute, he is directed to give it to the tenant ; yet in the
case cited, it was held to be well given to the owners : our statute
requires no interpretation whatever, for the letter allows it to be
given either to the tenant or the owner. In the case at bar, it
was given to the tenant, whose business it was to transmit it to
the owner, whose agent, for that purpose, he may properly be
considered. The facts of the case illustrate the propriety of this
decision. The machine in question was left with the tenant to be
repaired, but for want of specific instructions, was suffered to lie
on the premises till it was distrained, after a lapse of two years
and five months. How was the landlord to know it was privileged
from distress, or who was the owner of it? Had he known all the
circumstances, he would not have been bound to send notice to
Boston, where it is conceded the plaintiffs lived. Nor is it clear
that the machine, having been suffered to remain on the premises
unclaimed for so long a time, by reason of the negligence of the
owners or their agents, was in truth privileged. However that
may be, it is part of the case that the requisitions of the statute
had been complied with, and the owners were bound to proceed
by replevin or not at all.

Judgment reversed, and venire de novo awarded.



304 SUPREME COURT [Philadelphia



Mechanics' Bank against Gorman.

An assignment in trust for creditors is good, although it excludes unreleasing
creditors and reserves a trust of the surplus for the debtor.

To affect land in the hands of a purchaser, a judgment must have been not
merely simultaneous with but anterior to the conveyance ; and the precise time
at which the judgment was entered must be shown by less than record proof.

ERROR to the District Court for the city and county of Phila-
delphia.

The Mechanics' Bank of the city and county of Philadelphia
against William T. Gorman. This was an amicable action of
ejectment, in which the following case was stated in the nature of
a special verdict, and subject to a writ of error.

Jacob Gill Jams and wife, on the 21st day of September 1839,
executed and delivered to John M. Odenheimer a general assign-
ment, in due form, of all his estate, including the premises for
which this ejectment is brought, in trust for creditors as set forth
therein. The said assignment was duly acknowledged before an
alderman of the city of Philadelphia by the proper parties, at a
quarter after ten o'clock in the forenoon of said day. Said assign-
ment was duly recorded on the 4th day of October 1839, which
assignment is in words and figures following (prout assignment).
Security was regularly given by the said assignee, who under said
assignment sold the said premises in this writ mentioned to Wil-
liam T. Gorman, defendant, and conveyed the same to him by deed
in due form of law, on the 31st day of August 1840. The defend-
ant took possession thereof under said conveyance (which had been
duly recorded), and still holds the same. The said plaintiffs, cre-
ditors of said Jacob Gilliams, the assignor, issued process against
him in this court to September Term 1839, No. 241, returnable to
the first Monday of September 1839; and a copy of the instrument
of writing sued upon having been duly filed, judgment was duly
entered thereon on the regular judgment day of that month, viz.,
the 21st day of September (the date of said assignment), between
the hours of eleven and twelve o'clock A. M. of that day, for want
of an affidavit of defence, and the damages were assessed on the
1st day of October 1839, at $758.76. Writs of fieri facias and
venditioni exponas were afterwards duly issued upon said judgment
by the said plaintiffs, who, after regular condemnation under the
said fieri facias, subsequently purchased the said premises at she-
riff's sale under said venditioni exponas, paid the purchase money,
and received a sheriffs deed duly acknowledged, and recorded the
same.

If upon this case the court shall be of opinion either



Dec. 1844.] OF PENNSYLVANIA. 305

[Mechanics' Bank v. Gorman.]

1. That the judgment so obtained by the plaintiffs against Jacob
Gilliams after eleven o'clock of the 21st day of September 1839,
took precedence and secured a lien on said premises, in preference
to the said general assignment by Jacob Gilliams, executed and
acknowledged before eleven o'clock on the same day, or,

2. That the said assignment is void in respect to the above-
named plaintiffs, by reason of the terms of a provision for a release,
and the resulting trust for the assignor as contained and expressed
therein,

Then judgment to be entered in favour of the plaintiffs, to be
released, however, on payment of their said judgment and costs.
If otherwise, then judgment in this case is to be entered for the
defendants, subject as above stated to a writ of error.



ASSIGNMENT.



This Indenture, made the 21st day of September 1839, between
Jacob Gilliams of the city of Philadelphia, dentist, and Ann his
wife, of the first part, and John M. Odenheimer of the same city,
of the second part. Whereas, the said Jacob Gilliams is entitled
to and possessed of certain estate, but owing to his misfortunes in
business is unable to pay his various creditors, but is desirous of
distributing said estate among them according to their several
equities: Now this Indenture witnesseth, that the said Gilliams,
as well for and in consideration of the premises as of the sum of
one dollar to him in hand well and truly paid by the said John M.
Odenheimer, at and before the sealing and delivery of these pre-
sents, the receipt whereof is hereby acknowledged, hath granted,
bargained, sold, assigned, transferred and set over, and by these
presents doth grant, bargain, sell, assign, transfer and set over
unto the said John M. Odenheimer, his heirs, executors, adminis-
trators and assigns, all the estate real and personal of him the said
Jacob Gilliams, and his rights, credits and expectancies of whatso-
ever nature or kind, and whether situate, lying, and being due and
owing in the State of Pennsylvania, or elsewhere, to have and to
hold the same with the appurtenances unto the said John M. Oden-
heimer, his heirs, executors, administrators and assigns, to his and
their only use and behoof for ever, in trust, nevertheless, and to,
for and upon the trusts, intents and purposes hereinafter set forth,
viz. : That the said party of the second part shall, by public or
private sale, at discretion, and by collections, suits or compromises,
likewise at his discretion, convert all the assigned property, as
speedily as may be, into cash, and as the proceeds are from time
to time realized (after paying all the expenses of this trust, includ-
ing the cost of this instrument), pay the creditors of the said party
of the first part their respective demands, in the order of classes
hereinafter enumerated, without preference as between individuals
of the same class. Said classes to be paid according to their se-
viii. 39 2 A *



306 SUPREME COURT [Philadelphia

[Mechanics' Bank v. Gorman.]

quence, so that no subsequent class shall receive anything until
all those prior to it are paid in full.

First Class. All those creditors of the said Jacob Gilliams whose
respective claims do not now without abatement exceed the sum
of $700. Also all sums due or to grow due for professional ser-
vices rendered and to be rendered to the assignor. Also the debt
due to Lewis Gilliams, amounting to $2000 or thereabouts.

Second Class and lastly. All the residue of the creditors of the
said party of the first part indiscriminately.

And should any part or portion of said trust and property or
funds remain after fully complying with the trusts aforesaid, then
the said party of the second part shall deliver over and reconvey
the same unto the party of the first part, his heirs, executors, ad-
ministrators and assigns. Provided, that no creditor of the said
second class shall be entitled to participate in the said estate, who
shall not, on or before twelve o'clock, noon, of the 25th day of
October 1839, execute and deliver to the said Jacob Gilliams a full
and entire release from all demands.

And the more effectually to enable the said party of the second
part to accomplish and perform the trusts aforesaid, the said party
of the first part doth hereby nominate, constitute and appoint the
said party of the second part his true and lawful attorney, for him
and in his name to ask, demand, sue for, recover and receive all
such sum and sums of money, debts, goods, wares, dues, accompts
and other demands whatsoever, which are now due and payable
to him, or which are now due and may hereafter become payable.
Giving and granting unto his said attorney by these presents, his
full and entire power, strength and authority in and about the
premises, to have, use and take all lawful ways and means for the
purposes aforesaid, and upon the receipt of any such debts, dues,
and sums of money, acquittances and other sufficient discharges
to make, seal and deliver.

In testimony whereof, &c.

City of Philadelphia, ss.

This 2lst day of September 1839, personally appeared before
me (one of the aldermen of the city of Philadelphia), the within
named Jacob Gilliams and Ann his wife, and John M. Odenheimer,
and severally acknowledged the within written indenture to be
their act and deed, and desired that the same might be recorded
as such, the said Ann Gilliams being of full age and by me pri-
vately examined apart from her said husband, the contents thereof
being made known to her, declaring that she freely executed the
same without any compulsion from her said husband.

In testimony whereof, I have hereunto set my hand and seal
the day and year last above written. Acknowledged at a quarter
past ten o'clock, A. M.

P. CHRISTIAN.



Dec. 1844.] OF PENNSYLVANIA. 307

[Mechanics' Bank v. Gorman.]

The court below gave judgment for the defendant on the case
stated.

1. The court below erred in deciding that, the judgment ob-
tained by the plaintiff against Jacob Gilliams, as aforesaid, did not
take preference and secure a lien on the premises for which the
ejectment was brought, in preference to the general assignment
by Jacob Gilliams, executed and acknowledged as aforesaid.

2. In deciding that the assignment made by Jacob Gilliams
was not void in respect to the plaintiff, by reason of the terms of
a provision for a release, and the resulting trust for the assignor,
as contained and expressed in said assignment.

3. In giving judgment on the case stated in favour of the de-
fendant.

V. L. Bradford, for the plaintiff in error.
Haly, contra, was confined to the first error.

The opinion of the Court was delivered by

GIBSON, C. J. The rule of the common law, which rejects frac-
tions of a day in determining the priority of liens, was restricted
in Metzler v. Kilgore to judgments ; and the reasons given for it
show that it could not be otherwise. Judgments of the same date
were held to start from the same point of time, not only because
the common law principle of relation to the first day of the term
had been altered no further than to let in record proof of the true
day of rendition and not of the hour and minute, but because the
date of a judgment being matter of record and triable only by
itself, could not in general be established, falsified or explained by
inferior evidence. Judgments of the same date were therefore
admitted to come in together by force of a necessity, which did no
injustice in putting them on a footing as to mere technical advan-
tages resting on no principle of actual justice, but on an accidental
interpretation of the statute of Westminster the second. But the
precise time of delivering a conveyance, like the precise time of
delivering a fieri facias, being provable by evidence in pais, it fol-
lows that the necessities of justice, like the necessities of the law
( which required us to exclude inferior evidence in Metzler v. Kil-
gore, require us in this instance to admit it. The principle, in
that case, brought in the judgments together; but in this, would
exclude the assignment entirely. It is unnecessary to say that such
a result would be contrary to natural right. It would be impos-
sible to put a judgment and a conveyance on a footing of equality,
not only because it would be impracticable to determine the rela-
tive proportions coming to each, but because they are inconsistent
and irreconcilable. The one is a security which incumbers the
property in exclusion of everything subsequent to it : the other, a
conveyance excluding everything to which it is anterior ; and
they are therefore incapable of standing together. To affect land



308 SUPREME COURT [Philadelphia

[Mechanics' Bank v. Gorman.]

in the hands of a purchaser, a judgment must have been not merely
simultaneous with, but anterior to the conveyance ; and as an
indispensable measure of justice, the precise time at which the
judgment was entered must be shown by less than record proof.

The argument that a judgment whose date in contemplation
of law covers the whole day, is necessarily anterior to a convey-
ance at an intermediate point of the same day, is too subtle to be
solid. The conclusion attempted would not be borne out by the
most fanciful effect of the legal fiction ; for it might be possible
to deliver a conveyance so exactly at the stroke of twelve as to
leave no room for an intervening lapse of any appreciable portion
of time. But justice is not to be dispensed on principles so artificial,
where it can be avoided. When judgments bear the same date,
they must necessarily come in together; but between a judgment
and a conveyance, actual priority must be shown like any other
fact.

The remaining point was agreed in Livingston v. Bell, (3 Watts
198) by sustaining an assignment in trust to pay debts, though it
included unreleasing creditors, and reserved a trust of the surplus
for the debtor. The reason is that the property is not less acces-
sible to those creditors when a second time in the hands of the
debtor, than it was before he parted with it. It is enough, how-
ever, that the point is no longer open.

Judgment affirmed.



Russell against Shuster.

In trespass against a constable for arresting the plaintiff and imprisoning him,
the declaration stated it to have been done without reasonable or probable cause.
Held, 1. That the defendant might under the general issue give evidence of the
contents of the plaintiff's trunk for the purpose of showing he was addicted to
burglary. 2. That the character of the plaintiff could not be given in evidence
in mitigation of damages.

ERROR to the District Court for the city and county of Phi-
ladelphia.

This was an action of trespass vi et armis, brought by Jacob
Shuster against William Russell and Charles Downer. The decla-
ration charged the defendants with arresting the plaintiff and
taking him to the mayor's office and imprisoning and keeping and
detaining him in prison there, without any reasonable or probable
cause, for four days, &c. The defendants pleaded not guilty with
leave.

On the trial the plaintiff called the mayor of the city, who tes-



Dec. 1844.] OF PENNSYLVANIA. 309

[Russell v. Shuster.]

tified that the plaintiff, Shuster, alias Hand, was brought to his
office by the defendants on the 13th March 1842. That he com-
mitted him for a further hearing. He thought the proof authorized
the belief that he had been committing an offence elsewhere. The
evidence was such as to make it proper to hold him. They had
no process. The plaintiff was discharged by him from Moya-
mensing prison, after three days, because no offence was charged
against him. There was an examination of Shuster's baggage
with his own consent. That the greater part of the evidence was
from the trunk and its contents, and from Shuster's past habit of
life.

The defendants then asked the witness to state the contents of
the trunk, for the purpose of showing that the plaintiff was ad-
dicted to burglary. The plaintiff objected ; the court rejected the
evidence, and the defendants excepted.

The defendants then offered to give in evidence the character
of the plaintiff in mitigation of damages. This evidence was re-
jected by the court, and the defendants excepted.

The two bills of exception were the subject of the errors as-
signed.

M'Call and C. Gilpin, for the plaintiff in error, cited 6 Binn.
316; 5 Vin. Ab. 436, pi. 19, "Constable;" Burns' Justice, "Ar-
rest ;" 1 Williams's Justice 194-5 ; Dousl. 359 ; 6 Barn, fy Cres.
635; 2 Car. $ Payne 361 ; 1 Carr. $ Marsh. 513, (41 E. C. L.
280) ; 2 Stark. N. P. 69 ; 1 Alabama R. 407 ; 1 Saund. P. $ E.
121 ; 2 Ibid. 15 ; 2 Esp. 721 ; 2 Phil. Ev. 258 ; 1 Carr. $ Marsh.
414, (41 E. C. L. 228).

H. Hubbell, contra, referred to 1 Chitt. PI. 492 ; Rose. Ev. 38,
298, 304, 372; 3 Stark. Ev. 1360.

The opinion of the Court was delivered by

GIBSON, C. J. A constable may justify an arrest for reasonable
cause of suspicion alone ; and in this respect he stands on more
favourable ground than a private person, who must show, in addi-
tion to such cause, that a felony was actually committed. The
difficulty in regard to the first bill of exceptions before us, is to
determine whether circumstances of suspicion which might have
been pleaded in justification, as it is said the circumstances which
would have been disclosed by the rejected evidence might have
been, were competent to go to the jury under the general issue in
mitigation of damages. The objection rests on the rule which
requires matter of justification to be pleaded specially. At the
first blush, one would not perceive a reason to preclude a party
who had waived the benefit of a full defence, from showing the
purity of his motives to shield him from exemplary damages ; and
there is in truth none except that the plaintiff is not apprized by



310 SUPREME COURT [Philadelphia

[Russell v. Shuster.]

the pleadings of the defendant's intention. Yet where the defend-
ant is not at liberty to apprize him by pleading in justification, the
matter is for that very reason allowed to be given in evidence.
But whatever inconsistency there may seem to be in point of prin-
ciple, it is certain that where the plaintiff had charged want of
probable cause in his declaration, and thus evinced a readiness to
meet the defendant on that ground, it was ruled in Rowcliffe v.
Murray, (1 Car. 4* Marshm. 513), that the charge may be rebutted;
and the point was not ruled on the 21 Jac. 1, c. 12, which allows
special matter in certain cases to be given in evidence under the
general issue, but on the principles of the common law. That
case is in point ; for the declaration before us charges the arrest
to have been without probable cause ; and if, as it is asserted, the
plaintiff's trunk contained the instruments of a burglar, the defend-
ants should have been allowed to show it. It is not the business
of the officers to handle these people with gloves ; and where they
have, in strictness, transcended the authority of the law, they
should be allowed to show that they had not molested them wan-
tonly or inconsiderately.

But proof of the plaintiff's character was properly excluded.
There are undoubtedly analogous cases in which the law has been
held differently ; for instance, Leicester v. Walter, (2 Camp. N. P.
C. 251) ; Williams v. Callender, (Holts N. P. 307) ; Mies v. Spen-
cer, (Ibid. 534) ; and v. Moor, (1 M. fy S. 284; all but the

last, decided at Nisi Prius. But the doctrine was fully considered,
and the incompetency of such evidence deliberately settled in
Jones v. Stevens, (11 Price 283). The ground taken in the con-
current opinions of the barons of the exchequer, trite, but not the
less true, is that a party whose character is not put in issue, is not
bound to hold himself in perpetual readiness to defend it; other-
wise, it was said, " any man might fall a victim to a combination
made to ruin his reputation and good name, even by means of the
very action he should bring to free himself from the effects of ma-
licious slander." The second bill of exceptions, therefore, is not
sustained.

Judgment reversed, and venire de novo awarded.



Dec. 1844.] OF PENNSYLVANIA. 311



Northampton Bank against Balliet.

Payment into court or tender in notes of a bank, as between the bank itself and
its debtors, is equivalent to payment in specie.

If the obligor of a bond to a bank holds the notes of the bank at the time he re-
ceives notice of the assignment of the bond, the assignee is bound to receive them
as cash in payment of it; but if he obtained them after notice, they would be no
defence either as payment or set-off in a suit on the bond by the assignee in the
name of the bank.

In such suit, evidence of transactions between the defendant and the bank is
admissible for the defendant, where such transactions commenced before he re-
ceived notice of the assignment, though the liability of the bank was not complete
at the time of such notice.

Evidence that the defendant in the suit was a man of business and in the habit
of taking notes of that bank, is no proof of the time when the defendant received
the notes set up as a defence.

ERROR to the Common Pleas of Lehigh county.

This was an action of debt brought by the Northampton Bank
for the use of John Swander, against Stephen Balliet, Jun., who
was impleaded with Jacob Huntzinger (who was not summoned),
on a bond given by the defendants to the bank, dated in January



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