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unless reduced by way of set-off or de alcation, filed; and we are not prepared to say that, unthe plaintiff cannot recover."

der the circumstances, there was any error in 5. In answering defendant's fourth point, permitting plaintiff to amend by adding a count which was as follows: “That under the special charging defendant with having distrained for order of court, the plaintiff having shown no more rent than was due. The right of amenddamage by reason of the amount of the claim ment was neither waived nor abridged by the distrained for being excessive, he cannot re- agreement to dispense with trial by jury and cover." Answered as follows: “The evidence submit the decision of the case to the court of damage sustained was all taken before the under the provisions of the Act of 1874. By alorder of court referred to, and it has no refer- lowing the amendment the plaintiff below was ence thereto; for this reason this point is :in permitted to present for consideration and deswered in the negative."

cision the only important question raised by the 6. In negativing defendant's fifth point, evidence, viz: Whether the defendant, as his which was as follows: “Under the law and landlord, did distrain for more rent than was the evidence in this case plaintiff cannot re- due. Under the evidence that became a mixed cover."

question of law and fact. If the landlord, in 7. The court erred in its opinion as follows: determining the amount of rent due at the time "3. If the landlord desired to exercise the power he issued his warrant, was legally bound to deto summarily seize the property of the tenant, duct from the rent in arrear, according to the he was bound to know the precise sum due and terms of the lease, not only actual as well as owing, and if he issued his warrant for more he constructive payments on account, but also the does so at his peril. In this case he issued his unliquidated claim for damages which the tenwarrant for double the amount the tenant bon- ant appears to have had against him, it would estly owed him, and under the testimony it is follow that the distress was made for more rent fair to presume that had he claimed only the than was due. On the other hand, if he was amount actually due the tenant would have not required to deduct the tenant's claim for paid him or given satisfactory security. The unliquidated damages, the conclusion would be defendant conteuds that if the amount of rent that he did not distrain for more rent than he claimed and for which the distress was levied was then entitled to collect by distress. was not larger than was actually due, unless It appears that after deducting the tenant's reduced by way of set-off or defalcation, the bill for carpenter work, the balance of rent in distraint was not illegal. To this we cannot arrear was about $160, for which amount the asent. It would be in effect holding, that po landlord issued his warrant and distrained. matter how much has been paid, the amount | The tenant thereupon commenced proceedings was still remaining due."

before a justice of the peace under the 20th sec8. The court erred throughout its whole tion of the Act of 1810, Purd., 849, pl. 33, to comcharge in confounding “defalcation" with pel the landlord to defalcate or set off, against * payment," and basing its opinion upon the the rent distrained for, the claim of the former latter term. At common law, defalcation was for unliquidated damages. The suit thus comnot allowed, but was allowed by a special Act menced was so proceeded in, first before the of Assembly, of which the plaintiff had the justice, afterwards before arbitrators, and finally benefit in the trial of the former case between in court, that a special verdict was rendered, the parties, in which the amount admitted to finding for the landlord “defendant the sum of be due was $160, and the same reduced by de- eighty dollars, that being the amount, balance falcation to $80. The court should have held of rent due after deducting defalcation." that the verdict of the jury in the former case | The sum that was equitably due from the tenhaving settled that the direct claim of the land- / ant to his landlord at that time was, of course, lord was correct, the fact that the same jury re-settled by the special verdict, but did it determduced it by way of defalcation did not warrantine the amount for which the latter had a right damages under the common law.

to distrain when he issued his warrant? He For plaintiff' in error, Jas. D. Hancock, Esq. contended that it did not; and, for the purpose Contra, J. W. Lee, Esq.

of obtaining the opinion of the court on that

question, he submitted several propositions, the Opinion by STERRETT, J. Filed November | refusal of which has been assigned for error. 20, 1882.

In the first point, the learned judge was reIn view of the evidence the learned judge quested to say that, “under the evidence and was clearly right in holding that there could be admissions in this case, the claim made by no recovery under the declaration as originally Spencer for rent, for which distress was levied,

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LIVRE

was not larger than the amount actually due, distrained for more rent than he then had a
unless the amount claimed by way of set-off right to collect in that form of proceeding.
or defalcation is deducted therefrom.” This It is contended, however, that the court found
proposition, according to the undisputed testi- there was only "eighty dollars rent due and
mony, was correct, and should have been af-owing" when the distress was made; and that
firmed without any qualification. And as we this, as a finding of fact, is conclusive. We
understand the second point it should have been do not think so. It is evidently an inference
affirmed also. The third point was, “That if drawn from the special verdict in the defalca-
the amount claimed by Spencer, and for which tion proceeding. The learned judge reached
distress was levied, was not larger than was that conclusion by substantially holding, as he
actually due, unless reduced by way of set-off or erroneously did in refusing to affirm defend-
defalcation the plaintiff' cannot recover." This, ant's first and third points, that the landlord
together with the fourth and fifth points, which was bound to deduct the unliquidated claim for
are merely deductions from the preceding propo- damages from the rent in arrear. It manifestly
sitions, should have been affirmed. The undis- | resulted from an error of law; and in effect it is
puted evidence was that after deducting the practically the same as a verdict based on er-
tenant's bill for carpenter work, there remained, roneous instructions. If the defendant's first
independently of the claim for unliquidated and third propositions had been affirined with-
damages, at least $160 rent due; and it is only out qualification, and adhered to, no such infer-
by liquidating that claim at not more than $80ence could have been legitimately drawn. On
and deducting it from the amount for which the contrary, the irresistable conclusion would
the warrant was issued that the special verdict, have been that there was at least $160 due at
above quoted, could be made up. Indeed it is the time the warrant issued, and that plaintiff
expressly stated therein that the $80, found in in error had a right to distrain for that amount;
favor of the landlord, is “the balance of rent and therefore under the pleadings there could
due after deducting defalcation," that is, the be no recovery.
amount allowed for damages theretofore un- From what has already been said it follows
liquidated. While the $80, thus found, is the that the seventh and eight assignments of error
balance equitably owing by the tenant to his should also be sustained.
landlord at that date, it is not the amount of

Judgment reversed.
rent due, and for which the latter was entitled
to distrain, when he issued his warrant. He

FINK'S APPEAL. was not then required to credit, on the rent in arrear, anything except actual payments, and A., an only child, sought by suit to recover from the such sums as the parties had agreed to treat as trustees of her grandfather's estate, her share, together payment on account of rent. He was under no

with interest thereon for upwards of thirty years,

which said share had been paid to her father as her legal obligation whatever to deduct the tenant's

guardian during her infancy. She admitted the payclaim for unliquidated damages. If, at the risk ment but denied the right of the guardianship of her of being compelled to pay damages for excessive

father upon the ground that no record could be found distress, a landlord is bound to deduct from the

of his appointment as such. Evidence was deduced to

show that the father had been recognized as her guardrent in arrear every conceivable claim or de

ian and the said trustees ordered to pay him the money mand his tenant may have against him, the by the court below. It was also shown that many of remedy by distress will soon become practically the records of the Orphans' Court were lost or missing. useless. But such is not the case. In ascer

Held, that as the Orphans' Court had recognized the

father as her guardian, and that fact happening more taining the amount of rent due, he is not re

than thirty years ago, the appellant was not entitled to quired to credit the tenant with anything ex

recover. cept payments on account, actual or construct

Appeal from the decreee of the Orphans' Court ive. Other matters of claim or account, which the parties do not agree to treat as payment,

of Luzerne county. must be enforced by the tenant in some other Opinion by GREEN, J. Filed May 1, 1882. way, either under the Defalcation Act before a There is no question in this case that the apjustice of the peace or by separate suit.

pellees did pay the whole amount of the share We think, therefore, that the learned judge of the appellant in the fund arising from the erred in not affirming the propositions of the sale of Daniel Walp's real estate. It was paid defendant below, and in not holding that the to Aaron Spade, her father, during her infancy. claim for unliquidated damages, wbich was set- | The appellant alleges that this was a mispaytled in the defalcation proceeding, had nothing ment, and now seeks to compel the appellees to to do with the question whether the landlord pay her the money, together with interest for upwards of thirty years. The appellees allege fied that they did not discover that they had a that Aaron Spade was the guardian of the ap- claim until in 1869. It seems that they brought pellant, and that her share of the fund was paid a common law action against the trustees in to him as such. The fact of guardianship is 1873. In addition to the recitals of the guarddenied by the appellant, and this disputed ques- ianship contained in the petition and order of tion of fact constitutes the contention of the sale above mentioned, a deed was given in eviparties. The denial of the guardianship is based dence dated March 12, 1849, in which five of the upon the fact that no record of the appointment parties interested, conveyed to the other two, a can be found. If there were a legal require-tract of land of the decedent in Hollenbach ment that the appointment of a guardian could township. Among the grantors was "Aaron only be proved by the production of the original Spade, guardian of Mary Ann Spade." John petition, and the record entry on the minutes, Weiss, one of the appellees, testified: “Jacob the contention of the appellant would be sus- Wealer was the attorney who carried through tained. But we do not understand that there the whole proceedings. * * I acted under bis is any such rule. Mr. Bogert, an assistant clerk, advice." *** "Aaron Spade was appointed as was examined, and testifies that he had searched guardian in settling up the estate. I treated the files of the Orphans' Court and found no with him as to her share." * * I paid Mary appointment. He also examined the indices. Ann Spade (Fink's) share of the money to He adds, however, that he did not examine Aaron Spade." By the foregoing facts and tegeither the docket or the minutes, and says also: timony it appears that the petition for the order "It has been found in reindexing the Orphans' of sale was prepared by an attorney, who, of Court docket there are many things that were course, knew the necessity of the minor appearnot indexed. I also find there are many of the ing by a guardian in the proceedings; that an old files not to be found in the office.” It is order of sale was granted by the Orphans' Court obvious after such a statement as this that there upon the faith of the petition, and that the title would be no propriety in the conclusion that the passed to, and was accepted by, the purchaser, appointment was never made. The examina- upon the assumption that Aaron Spade was at tion was not complete in any sense and simply that time the guardian of his daughter; that developed that an imperfect search failed to the title to another part of the decedent's real discover the entry of an appointment. On the estate was conveyed to two of the heirs, upon other hand, in support of the allegation of the the same assumption; and finally, that the trusappointment very considerable testimony was tees who received the proceeds of the sale paid given. The fund was derived from the sale of the appellant's share to her father as her guarda decedent's real estate under an order of the ian. It is difficult, indeed impossible, to believe Orphans' Court. The petition was presented on that all these transactions could have taken August 20, 1819. It purported to be presented place and yet that Aaron Spade in reality was and signed by all parties in interest, and in re- not his daughter's guardian. The personal inciting the names of the parties describes one of terests of those who dealt with him in that charthem thus: “And Aaron Spade, who is the acter would necessarily have prompted them guardian of Mary Ann Spade, and who inter- to ascertain with certainty his title to his office, married with Mary Ann Walp." The appel- | before joining with him in a petition to the lant, Mary Ann Fink (formerly Spade), was at Orphans' Court, or in a conveyance of real estate, that time between four and five years of age, or before receiving the title to land from him, or and, of course, could only act by a guardian. paying him money which, if wrongly paid, On this petition the Orphans' Court, on the would subject them to a liability to pay it again. same day, granted an order of sale to the appel- | It is much more easy to believe either that the lees as trustees. The order also recites Aaron clerk made an imperfect search for the record of Spade as the guardian of Mary Ann Spade. the appointment, or that the original petition Under this order the real estate was sold and the was lost or the entry not made. The auditor proceeds were subsequently distributed among has found as a fact that the appointment was all the parties entitled, without an account. No made and no bond given. And the court below complaint was ever made by any of the other has found that from all the facts in evidence parties interested. In the year 1877, twenty- they were bound to conclude that the appointseven years after the confirmation of the sale, ment had been made. We fail to discover anythe appellant filed a petition for a citation to thing in the case to impair the correctness of compel the trustee to settle an account. The these findings. The maxim omnia praesumappellant attained her majority in the year 1866, unter esse rite acta is clearly applicable in such having married John Fink in 1865. They testi- I a case, and when to this is added the positive

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of the trust and in fraud of the rights of the cestui que

testimony of a living witness, and strongly cor- I am of opinion that the case is not within roborative circumstances concurring with, and the purview of the probibition. It is not prohappening in consequence of, the principal fact posed to interfere with the rightful authority of in question, and that fact occurring more than the State court in any proper sense. The conthirty years ago, the judicial mind may well test here relates to the ownership of the judgrest satisfied with the sufficiency of the proof. ments. It is alleged, and for the purpose of

Decree affirmed and appeal dismissed at the this motion it inay be assumed to be satisfactocosts of the appellant.

rily shown, that they belong to Mrs. Linton ;

and, if so, the defendants have no right to interCircuit Court, United States. meddle with them. Western District of Pennsylvania,

If these judgments appertain to the trust, IN EQUITY.

which is the foundation of this suit, they are

an inherent part of the controversy and must LINTON et ux. v. MOSGROVE et al.

enter into our final decree if complete justice is Section 720 of the Revised Statutes, which forbids United to be done. And strange, indeed, would it be States Courts to grant injunctions to stay proceedings were this court impotent to restrain a trustee in a State Court, does not restrain the Circuit Court

subject to our general equitable jurisdiction from from enjoining an equitable use of a trust judgment in a State Court by executions and levies in violation

making a fraudulent use of a trust judgment

standing in á State Court. Surely there can be trust.

no such defect in our judicial system. Sur motion for preliininary injunction.

Under the admissions in the defendants' affiOpinion by ACHESON, D. J. Filed December davits I think the present motion should be 18, 1882.

allowed without requiring security. By virtue The subject-matter of this suit is a trust of real of the judgments of revival and the execution and personal property evidenced by an instru- | attachments, every possible lien against the enment of writing executed by the trustee, James tire estate, real and personal of the late Mrs. E. Brown, defendant's testator. The surviving Finley, has been acquired. Should the controcestui que trust is Mrs. Linton, one of the plain versy not terminate within five years from the tiffs, in whose behalf the suit is prosecuted. Be- date of the revival of the judgments, we will yond question the case presented by the bill is allow alias writs of scire facias to issue. of equitable cognizance, and it is equally clear. The injunction prayed for is allowed, the same that in virtue of the citizenship of the parties to remain in force until further order. this court has jurisdiction of the controversy. For plaintiffs, Messrs. Hill Burgwin, Geo. W.

It is alleged that the judgments in the State | Guthrie and Jas. P. Colter. Court recited in the bill belong to the trust, and Contra, Messrs. E. S. Golden and John Gilpin. that Mrs. Linton is now the owner thereof under the terms of the trust; and one of the -In Willett v. People, a murder case, in the prayers of the bill is to have the trust in respect forthcoming volume of Hun's Reports, two curito said judgments judicially declared, and en- ous points of evidence were passed upon. Upon forced in favor of Mrs. Linton, and the judg- the prisoner's arrest letters were found in his ments assigned to her. To this relief, it would trunk from the deceased and from his sister and seem, she will be entitled if the allegations of daughter, hinting at improper relations between the bill are sustained. We are now asked to re- | the prisoner and the daughter. No letter from strain the defendants, until further order, from the prisoner calling forth or answering these exercising any acts of ownership over the said | letters was proved. Held, that the court erred judgments or in any wise interfering with the in admitting the letters against the prisoner. same. If the plaintiffs' allegations are true, On the coroner's inquiry a witness recognized the defendants—the personal representations of the prisoner by his voice out of a number of perJames E. Brown, deceased, -are making a most sons passing behind and speaking the same inequitable and unwarrantable use of the judg words, which she testified had been spoken in ments by means of executions and levies in her hearing by a person whom she believed to violation of the trust, and in fraud of the rights be the prisoner, and who called on her on the of Mrs. Linton.

night of the murder. Proof of this experiment Is this court powerless to arrest such wrong was admitted on the trial. On neither occasion by reason of the statutory provision which for- did the prisoner deny that he was that person. bids the courts of the United States to grant in- | Held, that it was error to admit this evidence junctions, to stay proceedings in a State Court? on the theory of an admission by the prisoner's [R. S., Sec. 720.]

silence.-Alb. L. J.

Pittsburgh Legal Journal.

Supreme Court, Penn'a.

defendant. The cause then proceeded to judg

ment against unknown owner, and the lots ESTABLISHED 1853.

were sold on a levari facias issued thereon, on E. Y. BRECK, : : : : Editor. the 8th day of October, 1875, to Jacob W. ZahnN.S., Vol. XIII. I

iser, for $1,100. By deed dated and acknowl0. S., Vol. XXX.

No. 22.

edged on the 25th day of October, 1875, Zabniser PITTSBURGH, PA., JANUARY 10, 1883. conveyed them to Edmund Bostwick. He on

the 19th of November, 1875, his wife, Mary Elizabeth Bostwick, the devisee for life, joining

therein, executed a mortgage thereon in favor APPEAL OF GEORGE S. BRYAN.

of Isaac M. Pennock to secure the payment of

$7,000 in three years from the date thereof. Mr. A sheriff's sale on a municipal lien filed under the Act | Pennock on the 24th day of November, 1875, of January 6, 186-4, relating to streets, etc., in the city assigned this mortgage to George S. Bryan. of Pittsburgh, divests a prior fixed lien on the property |

Mr. Bryan foreclosed this mortgage and pursold. The lien was filed against a party as the owner, who had chased the property on the 15th day of Septemno title to the premises, more than six months after ber, 1877, and is now in possession of it. the completion of the work for which it was filed; it was

Frederick Bentz lived twelve years with Joel aniended by making unknown owner the defendant. Held, that the amendment was authorized by the act.

Skellin, administrator c. t. a. of the testator's The lien was not indexed against unknown owner as

estate, who filed a petition, alleging that Bentz required by the act. Held, that the omission to index was unable by reason, both of mental and bodily did not affect the purchaser at the sheriff's sale.

| infirmity, to work sufficient to support himself, The sale on the lien was procured to be made by E., the husband of the devisee for life of the property, for the

and that there was due the petitioner for his purpose of divesting a charge thereon for the support support $1,650, and praying for an order for the of F., an imbecile, and the property was bid in by Z. sale of the premises for the payment thereof. for E. Z. afterwards conveyed it to E. Held, that the

In answer to this petition George S. Bryan, property in E.'s hands was not subject to the lien of the charge for the support of E.

the respondent, claimed that the charge on these Municipal liens for grading and paving streets are a lots for the support of Bentz was divested by

species of taxation binding the entire estate in the the sale on the niunicipal lien. land, except where the Act of Assembly directs other The court below decreed that the premises wise, and no charge created by the owner of the prop

described in the petition owned by Bryan were erty can avail as against them. E. executed a mortgage thereon to P., who assigned it to held by him charged with the support and

B. B. foreclosed the mortgage and purchased the prop maintenance of Bentz, and that Bryan pay $750 erty at sheriff's sale, Held, that there was not suffi.

already due, and thereafter $150 per annum. cient notice from the records to put B, on inquiry as to the character of the sale on the municipal lien, and

For opinion of the court below, OVER, J., see that he held the property free of the charge for the sup 30 PITTSBURGH LEGAL JOURNAL, 47. Bryan port of F.

took this appeal. Appeal from the decree of the Orphans' Court! For appellant, Messrs. Geo. Shiras, Jr., and C. of Allegheny county.

C. Dickey. Mary A. Garber in her last will and testa- | Contra, Messrs. Barton & Son. ment, probated the 22d day of May, 1867, devised three lots of ground in the city of Pitts- Opinion by Paxson, J. Filed November 20, 1882. burgh to her daughter, Mary E. Bostwick, for We are of opinion that the learned judge of life, with remainder to her six children, and the Orphans' Court was correct in holding that charged the premises with the support and the charge upon the real estate in controversy, maintenance of Frederick Bentz, a son of the for the support of Frederick Bentz, was distestatrix, if by reason of sickness, bodily or charged by the judicial sale. It was in the mental infirmity, he should at any time be un- | nature of a fixed lien, and may be said to come able to work.

within the exceptions pointed out in Heister v. The city of Pittsburgh, on the 22d of March, | Green, 12 Wright, 96, and as such binding be1875, filed a lien against these lots for $203.16, tween parties and privies. The property, howthe amount assessed thereon for the grading, ever, was sold upon a municipal claim filed by etc., of Bates alley, the work having been com- the city of Pittsburgh for grading and paving a pleted on the 27th day of September, 1874. street abutting thereon. The Act of May 16, This lien was filed against E. Bostwick, the 1857, section 4, P. L., 542, provides that “all husband of the devisee for life, as the owner. taxes, rates and levies which may hereafter be On the 17th of July, 1875, the record was lawfully imposed or assessed by authority of amended by making unknown owners parties said city (Pittsburgb) on any real estate therein,

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