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Orphans' Court.

it does not appear that the amount of rent received by him was less than if he had paid

taxes, etc. In Re Estate of RACHEL HALL, a Minor.

Opinion by HAWKINS, P. J. Filed June 20,

1883. (1.) F. was discharged as guardian, being insolvent, and

filed his account, showing a balance due by him. In (1.) The fee taxed to John S. Ferguson, Esq., a subsequent proceeding in partition, in which he was as attorney for petitioner in the partition of the attorney for petitioner and his successor a party, he

estate of Robert Hall, deceased, was part of the was allowed a fee. Held, that his successor should have retained his ward's proportion of the fee.

costs of the case payable to the clerk of the Or(2.) A judgment against a guardian may be inquired

phans' Court in the first instance, and was thereinto as between guardian and ward on settlement of fore not attachable: Act 27th April, 1861, Purd. the guardian's account.

Dig., 437, pl. 157; Hutchinson & Co. v. Gormley, (3.) The measure of the liability of a guardian for failure

48 Pa. St. 270. But there is no apparent reason to pay taxes, make repairs, etc., on real estate of his ward, is the loss resulting.

why Mr. McCreery should not have retained

his ward's proportion of the fee on account of John S. Ferguson was appointed guardian of the balance due from Mr. Ferguson as late a small estate of three of the five children (of

| guardian: Sollidey v. Biner, 12 Pa. St., 347. whom Rachel was one) of John S. Hall, in 1873. | Certainly no court of equity would under the In 1876 John S. Hall died hopelessly insolvent, circumstances have enforced its payment. leaving a widow and these five children surviv

(2.) A judgment against a guardian is not ing him. His estate consisted of valuable im- conclusive as respects the ward, but may be proved property in Allegheny City. In 1877 | inquired into on the settlement of the account John S. Ferguson was discharged from his between the guardian and ward, and if found to guardianship, and the present accountant, J. | be erroneous, be disregarded: Morris v. GarH. McCreery, appointed his successor.

rison, 3 Casey, 226. The credit claimed by ac(1.) On his discharge Mr. Ferguson filed an countant for the judgment obtained by him as account showing a balance due Rachel. He attorney for Dr. Taylor against John S. Ferguwas then, and has been since, insolvent, and son as guardian is therefore a proper subject of nothing could have been made by execution. | inquiry. After his discharge a fee of $300 in a proceeding. It will be admitted that the primary liability in partition, in which he was attorney for peti- for the support and education of Rachel Hall tioner and Mr. McCreery as guardian of Rachel was on her father, John S. Hall; and that her Hall et al. was a party, was allowed by the estate could only be made to bear the burthen court. Mr. McCreery paid Mr. Ferguson his on the production of evidence satisfactory to proportion of the fee, although there was then this court of the inability of her father and of more than that amount due from Mr. Fergu- | the sufficiency of her estate. There is not only son as guardian. It was claimed that account- no evidence of the inability of John S. Hall to ant could and should have secured this fee educate his daughter, but positive evidence of on account of the balance due from Mr. Fergu- his ability. But had it been shown that he son.

could not afford the expense, there is not satis(2.) During his guardianship Mr. Ferguson, factory evidence to justify throwing it on her at the instance of and through Mr. Hall, sent estate.. Rachel to Dr. Taylor's boarding school, and (3.) When all the circumstances of this case agreed with Mr. Hall that the expenses should have been taken into consideration it will apbe paid out of Rachel's estate. He made no pear that the loss resulting from the conduct of contract with Dr. Taylor. He believed Mr. the guardian, with reference to his ward's real Hall at that time to be worth $50,000. Dr. Tay- estate, is not in the amount of rents with which lor's bill not having been paid, Mr. McCreery he charges himself, but in the depreciation of as his attorney brought suit against Mr. Fer- the real estate itself. There was no hope from guson as guardian and obtained judgment for the first, and there is now no allegation that the $314.14. Mr. McCreery now claims credit for real estate could have been preserved for the the payment of this item, and exception is ward; and consequently there was no loss suftaken thereto.

fered by her by reason of the conduct of her (3.) From the time of the death of Mr. Hall guardian. Had the estate been solvent the reuntil his real estate was under, and threatened sult must have been different. with, execution, Mr. McCreery did not pay For accountant, W. C. Erskine, Esq. the taxes nor keep the property in repair; but For exceptant, J. M. Swearingen, Esq.

Pittsburgh Legal Journal.

Supreme Court, Penn'a.

they might in order that they might show how

promptly they would pay. Garner accordingly ESTABLISHED 1853.

accepted the position and among other applicaE. Y. BRECK, : : : : Editor.

Editor. tions for insurance procured one from the deN.S., Vol. XIII. I

fendant. Garner subsequently discovered that

No. 47. 0. S., Vol. xxå. }

the statements as to the solvency were grossly PITTSBURGH, PA., JULY 4, 1883.

untrue, and he immediately placed the insurances obtained by him into other companies and returned the “Sunbury” policies to them for cancellation. Whether Humble's policy was

so returned was one of the facts in dispute. The SUNBURY INSURANCE CO. V. HUMBLE. defendant offered to prove that the representa

| tions made by Price to Garner were made with Where the generalagentofan insurance company fraudulently misrepresents to a local agent the solvency of

the assent of the company. Offer objected to the company, and the latter, in the honest belief that by plaintiffs. Objection overruled. Evidence the statements made to him are true, procures an in- I admitted. Exception. (First assignment of surance by stating again the representations made to

error.) him, the insured may defend against an action by the company upon his premium note upon the ground of

Plaintiffs requested the court to charge, inter such misrepresentations.

alia, as follows: In such a case the extent of the powers of the local agent First.-If the statements made by John C. is immaterial.

Garner to the defendant were believed by him Error to the Court of Common Pleas of Schuyl- and he made them in good faith, it would not kill county.

be a fraud on his part, and if it is true, as said Assumpsit, by the Sunbury Fire Insurance Garner testified, that the defendant took the Co., by its receivers, against Thomas Humble insurance and gave his premium note on the to recover for an assessment alleged to be due belief expressed by Garner that the company by the defendant as a member of the Mutual was good, and if the defendant made his appliInsurance Company plaintiff.

cation and gave his premium note on the faith Plea, non-assumpsit.

of the opinion expressed by Garner, then the On the trial before GREEN, J., the following representations made by Garner as to the condifacts appeared:

tion of the company, would be immaterial and The Sunbury Insurance Company was origi- the plaintiff would be entitled to recover. Annally incorporated as “The Sunbury Cattle In- / swer.-It is true as a general principle, that if surance Company,” for the purpose of insuring the party relied upon mere opinion, and not cattle on the mutual plan.

upon the false representations made, he cannot Two years later the Legislature granted an set up the falsity of the opinion in order to avoid amendment to the charter authorizing the direc- the contract, and to that extent we affirm this tors to take risks on losses by fire on the mutual point. But, if the jury find that false statements plan. This amendment was subsequently fol. as to material matters were made by the comlowed by a change of name, which was granted pany to Garner, as to the condition of the comon condition that the capital be increased to pany, with the design of making him believe $200,000, which should be invested in real estate that it was a good company, and so that, as upon which the stockholders should have the agent of the company, he should express that first lien. On March 6, 1876, the Common Pleas belief to others, and thereby induce them to of Dauphin county, at the suggestion of the at- take policies in the company, this would be such torney-general, dissolved the corporation on the a fraud upon the defendant as would avoid the ground of insolvency and appointed receivers. policy, if this was the inducing cause of the

The defense showed a large extravagance in taking of the policy, and particularly if the false the management of the company both before statements communicated to the agent were by and after the decree dissolving the corporation, him communicated to the defendant. and the following facts:

Second.That the statement made by GarJohn C. Garner testified that one Hiram Price, ner that the company had a paid-up capital of an agent of the company, called upon him and $200,000 could not and did not mislead or defraud requested him to act as agent for the company, the defendant, because the Act of 1870, creating representing to him that the company had a capital stock for this company provided it a paid-up capital of $200,000, and had assets sbould be exclusively invested in real estate, amounting to between $20,000 or $30,000 more, and that the stockholders should have the first that they had never had a loss, and wished | lien upon the sameand hence this real estate

was not applicable to payment of fire losses. In this connection it is proper to say that it Refused.

| matters little what were the powers of the agent, In the general charge the court said: * * * who made the fraudulent representations, by

As a matter of law, we say to you, that if means of which the defendant was induced to you find that false statements as to material take his policy, nor whether the agent himself matters were made by the company to Mr. Gar- | believed them to be true. The company having ner, as to the condition of the company, with a accepted the policy is affected with any fraud design of making him believe that it was a good on the part of the person in obtaining it. In company, so that, as an agent of the company, other words, it cannot repudiate the fraud and he would express that belief to others, and yet retain the benefit of the contract. It takes thereby induce them to take policies in the it cum onere. This is familiar law. See Jones company, then it would be such a fraud on the v. The National Building Association, 13 Norris, defendant as would vitiate the policy if such 215, and authorities there cited. statements made to the agent were by bim com- The remaining question in the case need not municated to the defendant, and they were the be discussed at length. The court could not inducing cause of his taking the policy. If the properly say to the jury, as requested by the agent himself was deceived by the company, or plaintiff's second point, that Garner's stateits authorized agent, so that he himself might, ment that the company had a paid-up capital in turn, deceive others, and they appoint him of $200,000 could not have deceived or injured agent so that he might add the weight of his the defendant. This was not a question of law, character or opinion in the attempt to deceive but a question of fact and was properly subothers, if this was the design of the company inmitted to the jury. The reason given by the making this appointment and these representa-company in support of its position is so remarktions, then we think that, where the agent, on able that I insert it here without comment. It the strength of those false statements made to | is “because the Act of 1870, creating a capital him, represented to the insured and gave it as stock for this company, provided it should be his opinion, based upon those false representa- exclusively invested in real estate, and that the tions so made to him, that it was a sound com stockholders should have the first lien upon the pany, the insured would have a right to take same—and hence this real estate was not appliadvantage of such false representations to avoid cable to the payment of fire losses." the policy, even though he were to swear that it No errors are perceived either in the answers was the opinion of the agent as to the character to points or in the general charge, and the ques. and solvency of the company that induced him tions of the cancellation of the policy and the to take his policy."

legality of the assessments were submitted to Verdict and judgment for defendant. Plain- | the jury under proper instructions. tiff's thereupon took this writ, assigning for

Judgment affirmed. error, inter alia, the admission of the testimony above cited, the answers to his points, and the KITTANNING INSURANCE CO. v. SCOTT et al. portion of the charge above quoted.

KITTANNING INSURANCE CO.'S APPEAL. For plaintiffs in error, Messrs. James Ryon and William A. Marr.

The lien of a judgment is neither destroyed nor affected

by an order of court opening the judgment for the purContra, Messrs. John W. Ryon and M. R.

pose of letting the defendant into a defense. Kaercher.

Where, pending proceedings under a rule of court to

open a judgment for the purpose of letting the defendant Opinion by PaxSON, J. Filed October 2, 1882.

into a defense, the judgment is transferred to another The evidence referred to in the first assign

county by exemplification of the record, the lien of the ment of error was offered for the purpose of

judgment is not lost or affected by the proceedings to

open it in the original court in which it is entered. showing that the representations made by Mr.

| Where a court has made absolute a rule to strike off a Price in the preceding January were made by judgment from the judgment docket, the proper mode and with the authority of the plaintiff company of removing the case for revision to the Supreme Court and assented to by it as correct. We think the is by writ of error, and not by appeal. learned judge was right in admitting it. There Error to the Court of Common Pleas of Butler was abundant evidence to show that the com-county and appeal from a decree of said court. pany was a fraud from its inception, and there On March 24, 1877, judgment was entered in was ample evidence to submit to the jury that the Common Pleas of Armstrong county upon it deceived its agents as to its financial condition a judgment note given by John Scott et al. to in order that they in turn might deceive inno- the Kittanning Insurance Company. On May cent parties who desired to insure their property. 18, 1877, Scott obtained a rule to show cause why said judgment should not be opened and he be of Common Pleas of Butler county. When the let into a defense. Depositions were taken on certified copy of the record was filed in that this rule, and finally, on February 18, 1878, the court, it was the duty of the prothonotary to same was made absolute.

enter it as he did. The act declares that a judgOn April 28, 1878, an exemplification of the ment thus transferred and docketed, shall have record of the above case was transferred to But the same force and effect as to lien, revival, exeler county, and the name of John Scott was duly cution, etc., as if it had been entered in the entered in the judgment docket in said county, court to which it is transferred. By virtue of thus indicating that the judgment in said case the transfer, the judgment, originally obtained constituted a lien upon certain real estate of and continuing in force against both defendScott, situated in Butler county.

ants in Armstrong county, became a judgment Scott then obtained a rule to show cause why I against them in Butler county, and the court said entry in the judgment docket should not be was clearly wrong in making the order comstricken off, alleging that the judgment in ques- plained of. tion, having been opened, constituted no lien The order of court, making absolute the rule upon his real estate.

| to show cause why the entry made by the proThe court, in an opinion by MCJUNKIN, P. J., thonotary in the judgment or lien docket, should subsequently made the rule absolute. Plaintiff not be stricken off as to John Scott,is reversed thereupon took the present writ of error and and set aside, and it is now ordered that the rule appeal, assigning for error the making of the be discharged. rule absolute.

| Opinion by STERRETT, J. Filed December For plaintiff in error, Messrs. E. S. Golden

| 11, 1882. and L. Z. Mitchell. Contra, R. P. Scott, Esq.

The only subject of complaint in this appeal

is, that the court below erred in ordering the • Opinion by STERRETT, J. Filed December entry of appellant's judgment, entered on ex11, 1882.

emplification of record from the Court of ComOne of the incidents of every judgment is a mon Pleas of Armstrong county, to be stricken lien, for five years from the date of its entry, on from the judgment docket as to one of the deall the real estate then owned by the defendant | fendants therein. and situated within the proper county; and! The appropriate remedy was a writ of error, that incident is neither destroyed nor affected and of that the company appellant has availed by an order opening the judgment for the pur- | itself. An appeal in such cases is unauthorized. pose of letting the defendant into a defense:

Appeal quashed. Steinbridge's Appeal, 1 P. & W., 481; Cope's Appeal, 15 Norris, 294. In such cases a special

CRAWFORD V. DAVIS. order is sometimes made ex majore cautela that the judgment shall stana as security, but | A change of location of the property is not essentially that is wholly unnecessary. Without any such necessary. If the purchase was in good faith and for a order, it continues to be a judgment with all its valuable consideration, followed by acts intended to incidents and for all purposes, except execution.

transfer the possession as well as the title, and the

vendee assumed such control of the property as to reaPending the defense to a judgment opened for

sonably indicate a change of ownership, the delivery of that purpose, it may be revived and the lien possession cannot, as matter of law, be held insufficient. thereof continued by issuing a scire facias

Error to the Court of Common Pleas of Chester thereon. If the issue is undetermined, and the plaintiff wishes to continue the lien of his judg

county. ment, he must proceed by scire facias within Opinion by MERCUR, J. Filed October 2, 1882. the five years, as in other cases: Cope's Appeal, The general rule is that a sale of personal supra. It follows, therefore, that the order of property is not good against the creditors of the court in Armstrong county, opening the original vendor, unless possession be delivered by the judgment as to Scott, one of the defendants, did vendor in accordance with the sale. In deternot disturb the judgment as to either of them | mining the kind of possession necessary to be any further than was necessary for the purpose given, regard must be had not only to the charof making the defense. For all purposes, except acter of the property, but also to the nature of execution against Scott, it remained a valid judg- the transaction, the position of the parties, and ment against both defendants in that county, the intended use of the property. No such and pursuant to the provisions of the Act of 1840, change of possession as will defeat the fair and Purd., 821, pl.14, it was transferred to the Court honest object of the parties is required.

Thus, where two brothers engaged in the busi- find whether the sale was in good faith or merely ness of manufacturing coaches, became embar- colorable. rassed, and sold their stock in trade to a third In view of the language of the first point subbrother who had been about the establishment mitted by the plaintiff, we cannot say the learned before the sale, and who went into possession, judge erred in not affirming it. The remaining continued the business at the same place, assignments are sustained. changed the sign to his own name, procured Judgment reversed and venire facias de novo another book-keeper, and opened new books, awarded. but both the vendors remained in his employ, For plaintiff in error, Messrs. Sidwell & Johneach of them superintending a particular de- son. partment of the work at stipulated wages, it was contra, Charles H. Pennypacker, Esq. held there was not such a want of corresponding change of possession, as matter of law, to make LUKENS v. CITY OF PHILADELPHIA, to use. the sale void against creditors of the vendor:

Where on a scire facias on a municipal claim for paving Dunlap v. Bournonville, 2 Casey, 72. The same

in the city of Philadelphia, the defense is set up that principle is recognized in Born et al. v. Shaw, | the charge has been made according to the frontage 5 Id., 288; McKibben v. Martin, 14 P. F. Smith, rule of assessment, whereas the property in front of 352; Evans v. Scott, 8 Norris, 136; Pearson v.

which the paving has been laid is rural, the classifica.

tion of the property by the Board of Revision of Taxes Carter, 13 Id., 156.

for purposes of taxation is not conclusive evidence as Evidence was given in the present case tend to its rural character. It is for the jury to decide from ing to prove the vendor to have been an aged all the evidence in the case whether the property is and infirm man, residing on a farm under a

rural or not. parol lease, and his son, the plaintiff, resided Error to the Court of Common Pleas, No. 4, with him. By reason of infirmities and poverty | of Philadelphia county. the father was unable to carry on the farm; be Scire facias sur municipal claim by the city therefore sold and transferred the property now of Phiadelphia to the use of Emanuel Peters. in contention to his son, the plaintiff, in con- against Charles Lukens and Eliza, his wife, for sideration of the latter agreeing to support his the amount due to the use plaintiff for paving father and mother and pay the rent of the farm; Orthodox street in front of certain premises that in pursuance of the agreement plaintiff owned by Eliza Lukens, defendant. Plea, that took charge of the farm, bought and put addi- the labor performed and work done were charged tional stock on it, using the whole, paid the for according to the frontage rule of assessment, rent, put a man in the farm house to work the whereas the ground in front of which said pavfarm for him while he was at work on the railing and curving were done is and was at the road, but he returned home nights, employed time of doing said work rural property, and asand paid for the labor on the farm, supported sessed as such. his father and mother until the death of the On the trial it appeared that the work was former, and still supports his mother; that after done by the use plaintiff in pursuance of an his purchase his father gave no attention to the ordinance of councils, and of a contract regufarm, but it was worked, managed and con- larly entered into by bim with the city. The trolled exclusively by the plaintiff. As the evidence was conflicting as to whether the propfather and son continued to live after the trans- | erty in question was rural or not. Defendants fer of the property in the same house in which showed that at the time the paving was done they had previously resided, and the property said property was classified by the Board of Rein question remained on the farm, the learned vision as “suburban," and so appeared on the judge charged, as matter of law, that there was / tax books, being assessed as such. not such a change of possession as the law re- Defendats requested the court to charge, inter quired to protect the property from sale by a alia, as follows: creditor of the vendor. In this he erred. A “The fact that the Board of Revision of Taxes change of location of the property is not essen-had classified the premises in question as rural tially necessary. If the purchase was in good or suburban in 1873 for the purposes of taxation, faith and for a valuable consideration, followed is conclusive evidence in this action that they by acts intended to transfer the possession as were rural or suburban." Refused. well as the title, and the vendor assumed such. The court charged, inter alia, as follows: control of the property as to reasonably indicate "The defense' made in this case is that the a change of ownership, the delivery of posses- property was so situated, relatively, to the city sion cannot, as matter of law, be held insuffi- | that this rule or method of taxation could not be cient. The case should be sent to the jury to constitutionally or legally applied to it. That

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