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to prejudice the minds of the jurors, the error been disregarded, and it was error to admit the
in the receiving of it would not have been cured duplicates described in the second and third
by ruling it out after the arguments had closed : specifications of error.
Railroad Co. v. Decker, 82 Pa. St., 119. All The lease vested in the lessees and their as-
though such reservations as those set out in the signs the exclusive possession of the land for
fourth and fifth specifications seem useless, yet the purpose of searching for, producing, storing
there is no error; they did not interfere with and transporting oil. They had the right to
the hearing and considering of the evidence by possession of so much of the land as was neces-
the jury. Nor did they mislead the counsel, for sary for said purpose, and were in the actual
he took his exceptions when his objections were possession of a considerable part, if not the
overruled and before the testimony was heard. whole. Their right was not a mere license.

"It shall be lawful for the overseers of the The rulings of the court, in the charge and
poor of any township, having first obtained the answers to points, were not erroneous as re-
approbation of any two justices of the peace of spects the defendants. Their sixth point was
the county, to lay a rate or assessment, not ex- | rightly refused.
ceeding one cent on the dollar at one time, upon None of the other questions raised by the
all real and personal estate within such town- specifications of error need remark, except the
ship: " Act of April 15, 1831, Sec. 26, P. L., 515. right of the lessees to conduct away the gas
Approbation of two justices of the peace lies at without liability to account. It is said that the
the foundation of the power of the overseers to offer to prove that the plaintiffs had so taken
lay a rate or assessment. And if not obtained, the gas and consumed it on other property was
their act in laying a tax is unauthorized by the overruled upon the authority of Kier v. Peter-
statute. So the law is written, and neither the son, 41 Pa. St., 357. The defendants' claim for
overseers of the poor nor the courts can treat it the gas is not under the contract; it is not with-
as obsolete. Section 29 of the same act provides, in the term of the Defalcation Act, and if they
that the overseers of the poor of every township have a right to recover for it, they cannot avail
shall cause the rates or assessments laid by them it as set-off. Speaking for myself, I exclude the
to be entered in books, which they shall sign inference that I agree that the lessees have the
and deposit with the town clerk; but if there absolute right of property in the gas. I think
be no town clerk, the book shall remain with the dissenting opinion by WOODWARD, J., in
the overseer, and the town clerk or overseer, Kier v. Peterson, supra, is sustained by his
as the case may be, shall permit any person reasoning and the authorities therein cited.
charged with township rates and levies to in- Gas often escapes in large quantities from oil
spect the same, at all reasonable times, without wells, and is of great value for fuel. It is con-
any fee or reward. This section is directory of ducted to towns, and extensively used in mills
things to follow the lawful laying of rates or and dwelling houses. Its value may greatly
assessments, and the validity of the tax does exceed the value of the oil produced. That a
not rest upon them. If overseers neglect to per- tenant, who has only the right to take oil or
form the duties directed by this section, they salt, may conduct away the gas and appropriate
may incur severe penalties, although the rates it to his own use seems to me an arbitrary con-
or assessments laid by them, after having first clusion.
obtained the approval of two justices of the Judgment reversed and venire facias de novo
peace, are valid and collectible.

| awarded. Part of the plaintiffs' claim was for poor taxes, For plaintiffs in error, Messrs. Wilson & Jenks. levied by the overseers of the poor of Beaver | Contra. Messrs. Mafft & Ross and B. J. & A. township. I. H. Alh, one of the overseers for B. Reid. 1877, called to prove the laying of the rates, in

BRUCK V. MAULSBURY. cross-examination, testified, that the overseers did not have the approbation of two justices of In a suit for the erection and construction of a saw mill,

the defense being that the plaintiff had not completed the peace; also, that they made no entry in

• the mill, the jury rendered a verdict in favor of the any book but the duplicate, And George Sny

plaintiff for $246," and the plaintiff to complete the der, one of the overseers for 1878, called for like job according to contract. purpose, testified, that the rates for that year Held, that such a verdict would be set aside. were not laid with the approval of two justices / Error to the Court of Common Pleas of Somof the peace. The testimony, instead of show- erset county. ing that the laying of the rates of assessments Opinion by STERRETT, J. Filed December was legal, affirmatively showed that the pro- 30, 1882. visions of the 26th section of the Act of 1831 had The claim of plaintiff below, for work done in

the erection and construction of a water power Glass v. Blair et al., 4 Barr, 196, in which the saw mill, was resisted on the ground that he verdict was " for the defendant, and that the had not performed his contract, in that he had plaintiff' receive back the machine." In reversnot completed and put the mill in good running ing the judgment in that case this court said: order; "that the roof was not completed, pipes / “It is an insurmountable objection to the vernot laid, and other important things, necessary | dict that there is no means of compelling its perto the completion of the mill, were left undone." | formance; for if the defendant refuses to deliver There was some conflict of testimony as to the the machine, which is an essential part of the terms of the verbal agreement under which the verdict, there is no means to compel him. The work was done, but the main question for the only remedy would be by suit, on the ground of jury was whether the contract had been substan- | rescission of the contract, and thus the verdict, tially performed by the plaintiff, and if not, which was intended to end the controversy, whether the defendant was responsible for the would be but the commencement or foundation non-completion of the work. Their verdict was) of another action." “in favor of the plaintiff for two hundred and It is no answer to say that, after rendition of forty-six dollars, and the plaintiff to complete the verdict, the plaintiff completed the work, the job according to the contract." Several as the jury determined he should, and that fact months after the rendition of the verdict, the has been so found. The court had no right to plaintiff, representing that he had “completed pass upon that question, nor could they do so the mill according to contract," asked the court without virtually retryiug the case for the pur“ to remove the stay of execution and permit pose of ascertaining what the contract was, and him to have judgment and execution for the to what extent it was performed by the respecamount of the verdict.” Ex parte affidavits tive parties thereto. The plaintiff in error has a were presented by both parties, and after argu- right to have all questions of fact, involved in the ment the motion was granted, judgment en- issue, submitted to and passed upon by a jury. tered and execution issued for the amount found Judgment reversed and venire facias de novo by the jury. The action of the court in thus awarded. entering judgment, etc., is the subject of com For plaintiffs in error, Messrs. Coffroth & Rupplaint in the several specifications of error. pel and l'alentine Hay.

If that clause of the verdict which provides Contra, H. L. Baer, Esq. for the completion of "the job according to contract,” could be treated as surplusage the judg

McNAUGHTON'S APPEAL. might be sustained; but it cannot be so regarded.

While one of several partners may justly subjeet the The jury evidently considered it a matter of partnership property to levy and sale in discharge of substance, something to be done by the plaintiff partnership indebtedness by giving a judgment note in fulfillment of his contract, and as part con- |

therefor in the name of the firm, he has no right to

thus undertake to pay his individual debt without the sideration, at least, of the sum found in his favor.

knowledge of his copartner, even though the money The only inference that can be fairly drawn for which the judgment note was given was used for from the language of the jury is, that they were firm purposes.

Such a judgment is a fraud upon creditors of the firm, satisfied plaintiff had not fulfilled his contract,

and may be set aside as to them in a collateral proand that he was still bound to complete it.

ceeding. Hence, it could not be treated as surplusage | An auditor appointed to distribute the proceeds of a without disregarding the intention of the jury sheriff's sale of the partnership property has a right and thereby doing injustice to the defendant, to inquire into the validity of such judgment. To avoid that result the court undertook to in Appeal of William McNaughton and others, quire whether the plaintiff, after the rendition execution creditors of the firm of Kingsland & of the verdict, had completed the mill according Reynolds, from a decree of the Court of Comto contract. That was a question of fact, in- mon Pleas of Crawford county, distributing the volved in the issue, and should have been settled proceeds of a sheriff's sale of certain property of by the verdict. The defendant had a right to said firm. have it determined by the jury and not by the | Before the auditor appointed to report districourt. The issue presented by the pleadings bution of the fund the following facts appeared: called for a general verdict, which would have | About March 1, 1881, J. S. Reynolds and W. been conclusive of every question of fact in- W. Kingsland formed a copartnership for the volved therein, and, after judgment, a bar to all purpose of carrying on a grocery business, it future controversy. The verdict was not re- being understood that Reynolds was to furnish sponsive to the issue and should not have been the necessary capital. They shortly afterwards received. A similar principle is recognized in purchased the business of one Besanson for $780, which was paid him by Reynolds. It appears, “I have said the judgments confessed by however, that on March 1, 1881, Reynolds had Kingsland are in the same category as the one procured from the Second National Bank of confessed by Reynolds. That is hardly true, inTitusville, without the knowledge of his co-deed, if they were confessed by Kingsland, for partner, the discount of a note for $1,200 in he seems to have had very little in the firm or sixty days, drawn by himself to the order of firm property." one A. P. Bennett, an accommodation iudorser, A decree was accordingly entered, awarding and with a portion of the proceeds had made the fund to the bank. Whereupon the executhe above purchase. The note was renewed on tion creditors took this appeal, assigning for its maturity, but on May 18, 1881, Reynolds error the decree of the court. gave to the bank a judgment note therefor, For appellants, Messrs. Neill & Heywang. signed “Kingsland & Reynolds, J.S. Reynolds," Contra, Messrs. F. B. Guthrie and Julius Byles. on which judgment was entered and execution was issued against the partnership property. Opinion by STERRETT, J. Filed December Kingsland made application to the court to | 30, 1882. have the judgment opened as to him, which The fund in controversy is the proceeds of was refused. On May 20, 1881, he confessed partnership property sold on executions against judgments to the various appellants, creditors the firm of Kingsland & Reynolds. It is conof the firm, for the respective amounts of the ceded that the execution creditors of the firm firm's indebtedness to them. On these judg- are entitled to participate in the distribution in ments executions were issued, under which the the order of their respeective writs; but it is property of the firm was sold for $916, which contended that the claim of the Second National was paid into court. The bank claimed before Bank of Titusville, for which it obtained judgthe auditor that it was entitled to the whole ment and issued the first execution, never was fund to the exclusion of the other execution a debt of the firm. In this the appellants are creditors. The auditor reported, however, that sustained by the report of the learned auditor, the fund should be paid to the latter as firm who, upon evidence of the most satisfactory creditors, inasmuch as the judgment of the bank character, found that the claim of the bank was for the individual debt of J. S. Reynolds. originated in a note for $1,200, made by ReynExceptions filed by the bank were sustained by olds, one of the partners to the order of and the court, CHURCH, P. J., saying:

| indorsed by Bennett, at whose instance the "An examination of the testimony taken in same was discounted by the bank for the indithis case brings me directly to an opposite con- vidual benefit of the maker. When the note clusion from that reached by the auditor.

matured, it was renewed for sixty days; but "I find from the testimony that the debt of about two weeks thereafter the bank, through the Second National Bank of Titusville was a the intervention of the indorser, procured a firm debt of the copartnership of Kingsland & judgment note from Reynolds, for same amount, Reynolds, or of the firm by whatever name it signed by him in the firm name and by himself may have been called, whose stocks of goods | individually. On that note judgment was imwere sold, and the proceeds of which were the mediately entered, and the execution in quessubject of the present distribution. The bank's tion issued. money went to pay for the original stock, with It is unnecessary to refer particularly to the sundry additions made thereafter. This all ap- testimony upon which the auditor based his pears from the evidence.

conclusion that the claim of the bank was origi"Judgment was confessed, it is true, by one nally the personal debt of Reynolds, and never member of the firm. So were the judgments of became the debt of tlre firm. The presumption the other execution creditors, and thus they | is, that the finding of the auditor is correct; stand in precisely the same category as regards but, even if we were to reverse the well-estabregularity.

lished rule on that subject, the decided prepon* When the application was made to open the derance of the evidence would constrain us to judgment of the bank against the firm of Kings- say his conclusion was clearly right, and that land & Reynolds, by Kingsland, the court dis- the bank must have known that the debt was charged the rule and refused the application, one for which the firm was not liable. Why, and expressly allowed execution to go against then, should the individual creditor of Reynthe firm property.

olds be permitted to take the firm assets to the “This adjudication stands to-day unreversed exclusion of partnership creditors? It is sugand in full force, and it must be considered as gested that the money of the bank was used in couchusive so far as the same is material here. paying for the original stock of merchandise with which the firm commenced business, and execution of the bank cannot be questioned in in replenishing the same from time to time; this collateral proceeding, especially since the and therefore, by some species of equity, the court refused, on the application of Kingsland, firm should be liable for the money loaned to to open it as to him. one of the partners on the individual credit Undoubtedly the general and well-established of himself and his indorser. It is a mistake to rule is, that an auditor, in the distribution of suppose that any such ground of liability is money in court, cannot inquire into the validity tenable under the facts of this case. The agree- of a judgment regular on its face; but it is ment between the partners as found by the equally well settled that a collusive judgment auditor was, that Reynolds should furnish the may be attacked collaterally by judgment or capital necessary to commence business, and execution creditors who would otherwise be dereceive interest on so much thereof as might be frauded thereby. Whenever such a judgment, in excess of his own share; and the testimony or the execution issued thereon, thus comes in shows that the money was borrowed by Reyn- conflict with the claims of creditors, they may olds from the bank for the purpose of providing avoid its effect by showing that, as to them, it his portion of the capital. It was neither loaned ) is a nullity: Dougherty's Estate, 9 W. & S., to the firm nor upon its credit. On the con- | 196; Lewis v. Rodgers, 4 Harris, 18; Thomptrary, it clearly appears that the note was dis- son'Appeal, 7 P. F. Smith, 175, 178; Second counted for the individual benefit of Reynolds National Bank's Appeal, 4 Norris, 528. The and on the credit of himself and Bennett, his facts of the case before us bring it fairly within accommodation indorser; and hence the bank | the principle recognized in the cases above cited, had no valid claim on the firm. If authority and we are therefore of opinion that the learned for so plain a principle be necessary, it may be judge erred in sustaining the exceptions to the found in Donnally v. Ryan, 5 Wright, 506, in auditor's report and awarding the money to the which Mr. Justice WOODWARD says: “Where appellee's execution. no credit is given to a firm, which in law is a Decree reversed, and it is now adjudged and distant person from the members who compose decreed that the auditor's report be confirmed, it, why should redress be sought against the aid the fund, distributed in accordance therefirm? As well might a creditor who had loaned with; and it is further ordered that the Second his money on the credit of an individual attempt National Bank of Titusville forthwith pay into to pursue it into the business or property of third the court below the money erroneously awarded parties, and hold them responsible to himself." to and received by it, together with the costs of In view of the fact which must have been this appeal. known to all parties concerned, that Reynolds individually, and not the firm, was the bank's

FRICK'S APPEAL. debtor, the taking of the judgment note signed

| After a contract for the sale of land had been executed, by Reynolds in the firm name without the and before any money had become due thereunder, the knowledge or consent of his partner, for the land in question was seized and sold by the sheriff, purpose of subjecting the partnership property

upon a judgment obtained against the vendor prior to

the contract of sale. The amount realized at the sher. to seizure and sale on execution, was a fraud

iff's sale was more than sufficient to pay all judgments upon the creditors of the firm as well as the against the vendor, and more than the whole sum the nonconsenting partner: Purdy v. Powers, 6 vendee had agreed to pay for the land. Both the ven

dor and vendee claimed the excess. Held, that the exBarr, 492, and cases there cited. One of the

cess was rightly awarded to the vendee by the court general incidents of the partnership relation is

below. the right of each partner to apply the firm assets to the payment of its liabilities, and following

Appeal from the decree of the Court of Comout that principle it has been held that one of

mon Pleas of Fayette county. several partners may justly subject the jointl Opinion by MERCUR, J. Filed December 30, property to levy and sale in discharge of part- | 1882. nership indebtedness, by giving a judgment | This contention arises in the distribution of a note therefor in the pame of the firm, as was fund produced by a sheriff's sale of real estate. done by Kingsland in this case: Grier & Co. The correctness of the decree is determined by v. Hood, 1 Casey, 430; Ross v. Howell, 3 Norris, the extent of the appellee's interest in the prop129. But it is a very different thing, in a legal erty sold. The facts necessary to understand as well as moral point of view, for a partner to the case are these: The appellant owned the thus undertake to pay his individual debt with- land bound by the lien of judgments. On the out the knowledge of his copartner.

| 16th of December, 1880, a written agreement, It is also contended that the judgment and under seal, was entered into between him and the appellee. The appellant, inter alia, thereby of bis unpaid purchase money. When that is proposed to sell to the appellee, the offer to re- fully paid his claim on the property, and in the main open for forty days thereafter, all the coal proceeds thereof, is discharged. He is no more underlying certain lands therein described, at entitled to the excess than if the equitable owner the rate of $23.75 an acre, if the purchase money had sold his interest at private sale, for a sum should all be paid down in one payment; but equal to that excess, to one who took it charged if in two different annual payments, then to with the payment of the amount due for the be $25 per acre; the first payment to be made legal title. In either case such excess is the within three months from the date of acceptance measure of the value of the vendee's interest in of the proposal; a deed with general warranty the land: Kerr et al. v. Day, 2 Harris, 112; to be made when the last payment should be Siter et al.'s Appeal, supra; Corson v. Mulvany, secured by judgment note or mortgage on the 13 Wright, 88; Smith & Fleek's Appeal, 19 P. property. On the 22d of January, 1881, and F. Smith, 474. again on the 24th, the appellee gave to the ap- It is true, specific performance would not be pellant written notice that he accepted the pro- enforced if there were such superior equities in position contained in the optional agreement, the appellant as to make it unjust to him to enand would comply with all its requirements. force the contract; but we discover no such

On the 9th of April, 1881, and before any pay- equities in this case. The fact that, after acment became due from the appellee, according ceptance of the offer, and before the vendee was to the agreement, the property was sold on a in any default, the coal advanced in value, does judgment recovered against the appellant prior not enlarge the equities of the vendor, nor deto the 16th of December, 1880. The sale pro- prive the vendee of the benefit of his bargain. duced a sum more than sufficient to pay all If it had depreciated in value he must have judgments against the appellant which were borne the loss. As it was enhanced he is enliens on the property, and more than the whole titled to the gain. The contract was certain, sum which the appellee had agreed to pay there fair and just between the parties. The learned for. That excess was claimed by each party to judge committed no error in decreeing the fund this appeal, but was ordered to be paid to the to be paid to the appellee. appellee. This appeal is from that decree. l Decree affirmed and appeal dismissed at costs

The auditor found as a fact, and on sufficient of the appellant. evidence, that the appellee was not guilty of For appellant, W. H. Playford, Esq. any fraud in procuring the agreement. The Contra, Messrs. Nathaniel Ewing and C. E. court confirmed the finding. The appellant | Boyle. entered into the agreement with sufficient opportunity to fairly understand all its terms and

KELSO'S APPEAL. conditions. No unate means were practiced. A sale of the land of a bankrupt, in pursuance of a decree The agreement contains nothing unlawful or in bankruptcy, does not divest the dower of the bankinequitable. It gave the appellee forty days rupt's wife: Lazear v. Porter, 6 Norris, 513, followed. within which to gecept the proposition He Where there are strong equities in a case in favor of the

appellants the costs will be divided between the parties, accepted it, and gave to the appellant notice

SHARSWOOD, C. J., dissents. thereof within the time specified. By this ac

Appeal from the decree of the Court of Comceptance and notice the contract became bind

mon Pleas of Erie county. ing on both parties thereto. Thenceforth there" was no want of mutuality. It became a binding

Opinion by MERCUR, J. Filed December 30, agreement for the sale and the purchase of the 1882. real estate. In equity the vendee became the The main question in this case was ruled in owner thereof, subject to the payment of the Lazear v. Porter, 6 Norris, 513. That being so price stipulated. His right of property therein recently decided we do not now think it necesflows from the contract, and exists before any sary to travel over the same ground again. We purchase money may have been made: Siter et there held that a sale of the land of a bankrupt, al.'s Appeal, 2 Casey, 178. Hence a sheriff's in pursuance of a decree in bankruptcy, did not sale on a judgment entered against the vendor divest the dower of the bankrupt's wife. The before his agreement to sell and convey, cannot authorities there cited show under a general asgive him the proceeds of the equitable estate of signment for the benefit of creditors by an inbis vendee. As against his vendor the vendee solvent, his widow's right of dower does not is entitled to the sum produced by the sale in pass. It was therefore held that such effect excess of the amount which he agreed to pay. should be given to the deed of a bankrupt, conThe vendor's interest is limited by the amount ) veying his real estate to an assignee. His wife's

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