Judgment for want of plea-Laches of defendant. Rule to strike off judgment for want of a plea. A Narr. was filed in March but not served upon the defendant's attorney on account of his absence. In October a Narr. was served upon defendant personally with a rule to plead in ten days, etc. Manderson, for the rule, stated that the defendant sent the Narr. to him, but he, finding that some other attorney had entered an appearance, did not file a plea until he ascertained that the attorney had with drawn from the cause. A plea was then filed, but judgment had been previously entered. For a defence on the merits the Court were referred to the affidavit of defence. D. C. The bill of particulars contained simply a claim for the amount of the judgment against the corpo ration J. G. Johnson, for the rule, argued that the bill of particulars should show how and why the defeudant was indebted to the plaintiff. McCabe, contra. Rule absolute. WIGHTMAN V. HENRY. Nov. 16. D. C. Attachment under act of 1869-Fraudulent sale by defendant of his whole stock. Rule to dissolve attachment under the act of March 17, 1869. The affidavit upon which the attachment issued contained general allegations of fraud on the part of defendant. Depositions on part of defendant showed that the defendant, a feme sole trader, was indebted to many persons, and determined to make a sale of her business in order to pay her debts. The sale was advertised in a daily newspaper, but no special notice was given to the plaintiff. After determining upon the sale defendant continued to make small purchases of goods from the plaintiff, and to make payments on account, and immediately before the sale wrote to him in reference to payment, saying, "you will hear from me next week." Before that time the sale had taken place. The sale was of the whole stock, and payment was made on the purchaser's notes. fendant paid from the proceeds several of her debts in whole or in part, and offered plaintiff the purchaser's note of $150 for his debt of $230, which was alleged to be something more than a fair proportion of the assets. This offer was rejected, and the present suit brought. W. L. Hirst for the rule, cited Ferris v. Carlton, 28 Leg. Intel. p. 269. Beresford, contra. De THE COURT were of the opinion that the deposi FIRE ASSOCIATION V. JOHNS. Nov. 16. tions did not show such fraud on the part of defend ant as would justify the continuance of the attachment, but ordered a re-tender of the note previously offered. The tender being made and accepted, the rule was made absolute. Sheriff's sale-Handbills-Misdescription. Rule to set aside sheriff's sale of real estate. The depositions of defendant alleged, 1. That the property worth $4200 was sold for $2250. 2. That the defendant's wife did not see any handbills posted on the premises. 3. That the two properties were sold as one. 4. That the description was incorrect, both houses being described as fronting on Somerset Street, whereas one was on Huston Street. The deposition of the bill poster not having been taken, the second point was disregarded. W. D. O'Brien, for the rule. J. D. O'Brien, contra. THE COURT made the rule absolute, on condition that within 48 hours the defendant gi-e security that a resale would cover the costs and bring an increased price; otherwise, rule discl arged. PAYNE'S ADMX. v. PATTERSON'S ADMRS. Statute of frauds-Parol agreement by vendee to convey land to third party on payment by him of purchase-money and interest. Haines v. O'Conner, 10 Watts, 320. Nov. 16, 1874. Judgment affirmed, THE COURT saying, that the alleged agreement, being in parol, could not be enforced as a contract of sale between Payne and Patterson, and that, as McLain acquired an absolute title under the sheriff's deed, it could not be treated as a mortgage, Patterson having no interest in the land. A mortgage being a defeasible deed, the duty to return the land is a necessary incident, and there can be no return to one who has no interest in the land. Insurance Co. v. Austin, 6 Wright, 257; Houser v. Lamont, 5 P. F. Smith, 311; and Maffitt's Admr. v. Rynd et al., 19 P. F. Smith, 380, distinguished. Error to Common Pleas of Alleghany Co. Payne's land having been sold at sheriff's sale and purchased by one Samuel McLain, an arrangement was made between Payne, Patterson, and McLain, that Patterson should advance for Payne some $2000, the amount necessary to purchase the land from McLain, and that the title should be conveyed to Patterson in order to secure repayment of the loan; it was further agreed, that Payne should remain on the land, paying interest on the amount advanced, and that Patterson should convey the land to him whenever he repaid the loan with interest, or in case he should sell the land, Patterson was to convey it to the purchaser and pay him the balance of the purchase money, after deducting his debt and interest. It was suggested that the agreement should be re- O. & N. '74, 44. duced to writing, but Payne said it was not necessary, as he knew Patterson. In pursuance of this agreement Patterson advanced the money, McLain conveyed the land to him, and Payne remained thereon for several years, paying interest to the amount of about $200, when the land was sold for $3500, and the purchase-money paid to Patterson. Upon the trial of this action brought to recover the balance according to the foregoing agreement, the jury found for the plaintiff the sum of $2347.50, subject to the opinion of the Court on the question of law reserved. The Court entered judgment for the defendant, non obstanti veredicto. John Glenn and S. A. McClung, for plaintiff, cited Harper's Appeal, 14 P. F. Smith, 315. ouser v. Lamont, 5 P. F. Smith, 311. Maffitt's Admr. v. Rynd. 19 P. F. Smith, 380. Sweetzer's Appeal, 21 P. F. Smith, 264. Danzeisen's Appeal, 23 P. F. Smith, 65. Haires v. Thompson, 20 P. F. Smith, 434. Todd v. Campbell, 8 Casey, 250. J. M. Storm and J. F. Edmundson, for defendant, cited Jackman v. Ringland, 4 W. & S. 150. De France v. De France, 10 Casey, 385. Opinion by MERCUR, J. Oct. 10. PITTSBURGH PETROLEUM Co. v. ČLARK. Use and occupation-Practice-Evidence necessary to explain errors assigned, not brought up with record. Error to Common Pleas of Alleghany County. This was an action to recover for the use and occupation of an oil-tank belonging to Clark, situate on the grounds of the Standard Oil Company. In the fall of 1867 the Pittsburgh Petroleum Company delivered to the Standard Oil Company, for storage, a large quantity of oil, which at first was stored in the Company's own tanks; but in December, this tank showing signs of weakness, one Charles Lockhart, who was a director in the Standard Oil Company (an incorporated company) and a member of the Pittsburgh Petroleum Company (a partnership concern), directed the oil to be run into Clark's tank, where part of it remained until the bringing of this action. It also appeared that before the oil was run into the tank, Clark told Charles Lockhart and William Freed, who were members of both companies, that they might use his tank, but no rental value was agreed upon. The defendants showed that they had demanded their oil from the Standard Oil Company, and they delivered all but about 1500 barrels, which they left in Clark's tank, and refused to deliver, and asked the Court to charge that, in view of this refusal, Clark could not recover after that date, which was refused (second assignment). They also asked the Court to charge that, under all the circumstances of the case, Clark must look to the Standard Oil Company, and could not recover from them, which the Court refused, and instructed the jury that a person taking and using the property of another is liable for the use and occu- | O. & N. 74, 103. pation of it (first, third, and fourth assignments). John Burton, for plaintiff in error, cited (first, third, and fourth assignments) Kline v. Jacobs, 18 P. F. Smith, 57. Henwood v. Cheeseman, 3 S. & R. 500. 2 Jones, 172. M. W. Acheson, for defendant in error, cited (first, third, and fourth assignments)— 1 Chitty on Pleadings, 11, 344, 345. Henwood v. Cheeseman, 3 S. & R. 500. November 16, 1874. The errors assigned being dependent on the facts in evidence, and none of the testimony being set forth, judgment affirmed. Per Curiam. MCELHINNEY et al. v. HOPE et al. JOHN BIGLEY V. REED & GILCHRIST, for use of O. & N. '74, 102. N. J. BIGLEY V. REED & GILCHRIST, for use of Partnership-Dissolution-Notice. Error to District Court of Alleghany County. Action against N. J. Bigley and John Bigley to recover price of certain coal which plaintiffs in affidavit of claim alleged had been sold to defendant by the firm of Reed & Gilchrist, composed of J. W. Reed and J. M. Gilchrist. Defendant did not in his affida vit of defence deny the partnership, but relied upon an alleged payment to Reed, one of the partners. Upon the trial, plaintiffs, after proving sale and delivery of coal, gave in evidence an agreement for dissolution of the firm cf Reed & Gilchrist, by which these claims were assigned to Gilchrist, following it by evidence that, before the payment to Reed, the Oct. 10. defendants were notified thereof and not to pay any one but Gilchrist. O. & N. '74, 45. Thomas McElhinney, Sr., died between the years 1840 and 1843 (more than thirty years before the institution of this suit), seized of the land in controversy, leaving a son, John McElhinney, who had three sons living at that time, who were the defend ants below, and six grandchildren, children of a deceased daughter, Esther Hope, three of whom were the plaintiffs below. Prior to the death of Thomas McElhinney, John and his three sons were living on the farm with him, and continued there after his death, using it as their own, and making valuable improvements thereon; but there was no evidence showing when these improvements were commenced. Upon the trial the defendants proved these facts, and that all the children of Esther Hope attained full age more than ten years before the commencement of this action, and also introduced evidence tending to prove a parol gift by their grandfather to John McElhinney for life, with remainder in fee to his three sons, the said defendants. In rebuttal, the plaintiffs proved, as showing a recognition of their title, that in the year 1851, John McElhinney purchased the interest of their brother, Robert Hope, in the farm, for $100. The Court charged the jury that the evidence of a parol gift was not sufficient to take the case out of the statute of frauds, and that on the death of Thomas McElhinney the title to the farm descended to his son John, and the children of his deceased daughter, Esther Hope, instructing them that the only question for them to decide was as to whether or not defendants had proved a possession adverse to the defendants for twenty-one years prior to the institution of the suit, to all of which defendants excepted. Verdict and judgment for plaintiffs. Nov. 16, 1874. Judgment affirmed. Per Curiam. Trunick was a member of the firm and part owner The defendants offered to prove that one David of the coal, and that the agreement of dissolution had not been signed by him; this the Court refused to receive, because the partnership, not being denied by the affidavit of defence, must, under the rule of court, be taken as admitted. The defendants then offered to prove that the agreement of dissolution was obtained by Gilchrist by refusing to advance the money necessary to carry on the business, and by misrepresentations. This was also refused. The defendants asked the Court to charge that the assignment of these claims without the debtor's consent was not binding on them, and that, even if binding, verbal notice unaccompanied by a copy of the agreement was not sufficient. This was also refused. R. & S. Woods and John R. Large, for plaintiff in error. Nov. 16, 1874. Judgment affirmed. Per Curiam. O. & N. '74, 226. GILMORE V. ADAMS, deft., and CARNAHAN, garnishee. Attachment execution-Note held by garnishee in trust to apply proceeds to certain debts of defendant. Error to District Court of Alleghany County. Attachment execution sur judgment against Calvin Adams. Adams & Co. was dissolved, Calvin Adams, the deIn December, 1872, the firm of Moorehead, fendant, selling his interest to the other partners. By the articles of dissolution it was agreed, that, as soon as the accounts could be settled, the purchasers should give their notes for the balance ascertained to be due Adams, which should be placed in the hands of a trustee, to be mutually agreed upon, and the proceeds thereof applied to the payment of commercial paper on which Adams had used the firm name for his own accommodation. Calvin Adams, and indorsed by him, with the firm Gilmore being the holder of a note made by name, brought suit thereon, and recovered judgment against the maker, on which he issued this attachment, attaching all moneys and notes in the hands of R. B. Carnahan, who had been chosen trustee, and to whom had been delivered notes for about $16,000, the balance ascertained to be due Adams. An attachment was also served on the remaining partners and makers of the notes attached, but discontinued at the trial. When the agreement above set forth was made, the partners thought that Adams's interest in the firm would be more than sufficient to pay all the fraudulent paper, but upon examination it was ascertained that there was outstanding about $96,000 of such paper. Plaintiff contended that this was a voluntary assignment for benefit of creditors, and void, because not recorded according to law. The Court, being of opinion that it was not a voluntary assignment for creditors, instructed the jury to find for the garnishee. Verdict and judgment for garnishee. Aughinbaugh & Duffand and D. T. Watson, for plaintiff in error, cited Lucas v. R. R. Co, 8 Casey, 458. Watson v. Bagley, 2 Jones, 164. Miners' Nat. Bank Appeal, 7 P. F. Smith, 193. R. B. Carnahan, M. W. Acheson, and John H. Hampton, for defendant. November 16, 1874. Judgment affirmed, THE COURT saying that the giving of the notes under the agreement set forth was not a voluntary assignment for the benefit of creditors, and that one holding a chose in action is not liable to attachment; the proper person to attach is the one who is to pay the money. Per Curiam. Certiorari to Quarter Sessions of Alleghany County. Certain parties owning property fronting on the Ohio River, over which one Robert Phillips had, in conjunction with the owners thereof, a private right of way along the river bank, petitioned the Court of Quarter Sessions, setting forth that they were under great inconvenience from the want of a private road to lead from the end of the aforesaid private road to the river, on the land of Robert Phillips. Viewers were appointed by the Court, as prayed for, who laid out a private road leading from the private road above mentioned to the Ohio River. A review and a re-review having been had, the Court confirmed the road, and directed the same to be opened as laid out by the re-reviewers, 33 feet wide, notwithstanding the fact that the re-reviewers. while reporting that a private road was necessary. expressly stated that ample accommodation had been made for the petitioners. It also appeared that, it pursuance of an act of assembly requiring it, the Court appointed the county surveyor, Geo. W. Bow-i man, one of the re-reviewers, while the report was signed by Jas. D. Hilands, deputy surveyor. R. & S. Woods and J. Whitesell, for appellant. J. R. Large, for appellee. November 16, 1874. Proceedings of the Quarter Sessions set aside, THE COURT saying that a private road could not be laid out unless one of its termini was the dwelling or plantation of the petitioner (Sandy Lick Creek Road, 1 P. F. Smith, 94), and could not exceed 25 feet in width. The substitution of the deputy surveyor was not error. (Act of Feb. 24, 1873, Ph. L. 155.) Opinion by GORDON, J. O. & N. 74, 23. KENNEY V. ALTVATER & Co., for use. Partnership-Dissolution-Notice by mail- Error to District Court of Alleghany County. Assumpsit. The firm of Altvater & Co. sold certain goods to Kenney, agreeing to receive payment in stone. Before the delivery of the stone the firm was dissolved and all outstanding claims assigned to Marks one of the partners, for whose use the suit was brought, and notice thereof sent to Kenney by mail, but there was no proof of receipt of the notice, except that the letter was not returned through the dead letter office. Marks was also appointed to settle the firm business. Afterwards Kenney delivered the stone to Altvater, and claimed that he had discharged the debt thereby. The defendant below asked the Court to charge that if the stone was delivered to Altvater, without notice, it was a discharge of the debt, and that a notice of the dissolution of the firm sent by mail was not sufficient without proof of its receipt, which was refused, the Court saying, however, that a delivery of the stone to Altwater & Co. would have been sufficient. Verdict and judgment for plaintiffs. Whitesell and Burton, for plaintiff in error, cited Watkinson v. The Bank, 4 Wharton, 482. A. M. Brown, for defendant in error. November 16, 1874. Judgment reversed, THE COURT saying that the distinction made between a delivery to Altvater and one to Altvater & Co. was unusual under the evidence, and the proof of mailing notice of dissolution to a customer of the firm is insufficient without some evidence of its receipt. Story on Part. 3 161. Watkinson et al. v. Bank, 4 Whart. 482. Tamon v. Hughes, 3 P. F. Smith, 289. Bank v. McManigle, 19 P. F. Smith, 156 Opinion by MERCUR, J. SHARSWOOD, J., dissents from the part of the opinion as to notice of dissolution. O. & N. '74, 73. Oct. 10. O. & N. '74, 83. Oct. 10. MIDDLETON V. BEARDALL. Vendor and vendee of land-Tender-Revision of contract. Error to District Court of Alleghany County. This was an equitable action of ejectment to enforce performance of a written contract for the sale of a lot. ADAMS V. PITTSBURGH INSURANCE CO. Evidence-Alleged custom derogatory of common law rights- What degree of proof necessary to submis question as to custom to jury. Error to Common Pleas of Alleghany County. This was an action of assumpsit to recover the amount of a note signed “For Steamer Glasgow and owners, G. W. Johnston, Captain," given in pay- Beardall, being the owner of the lot, entered into ment of the premium for an insurance effected on the a contract to sell the same to Middleton, part of the said steamer Glasgow by the master, without express purchase-money to be paid in cash, and the balance authority of the owners, Adams being one. by assuming payment of a mortgage already on the The plaintiffs below proved the note, and intro-em ses and giving a bond and mortgage therefor. duced evidence to show that it is the custom for the Middleton having found the title to be perfect, called Master to insure his boat for the benefit of the o one C H. Love, who had acted as Beardall's owners, giving notes for the premium, to which de- agcnt in making the sale, and left in his possession fendant excepted (1st and 2d assignments). the amount of the cash payment, and a bond and mortgage executed according to the contract, but instructed him to retain from the cash payment $20, for one month's rent of the property, he claiming that he had agreed to let the premises to Beardall for $20 per month. Beardall, having been notified by Middleton to go to Love, deliver his deed, and receive the purchase-money and mortgage, tendered to Love a deed for the premises, duly executed, and demanded the money and mortgage. Love having refused to pay the money without first deducting the $20, Beardall rescinded the contract. The testimony of the plaintiff's witnesses was not consistent, and was contradicted by the testimony on the part of the defendant. The defendant asked the Court to charge that the plaintiff was not entitled to recover, having failed to produce evidence of a custom sufficient to render him liable on the note, which was refused (3d, 4th, and 5th assignments). M. W. Acheson, for plaintiff in error, cited- Knox v. Campbell, 1 Barr, 366. Turner v. Burrows, 8 Ward, 144. As to proof of custom The Court below, being of opinion that Love acted as Middleton's agent in refusing to pay the money without making the deduction, instructed the juny that Beardall had a right to rescind, even though he Burger v. Farmers' Ins. Co., 21 P. F. Smith, 422. had agreed to rent the premises, as there was no Coxe v. Heisley, 7 Harris, 243. Jones v. Wagner, 16 P. F. Smith, 430. Cope v. Dodd, 1 Harris, 33. Dean v. Swoop, 2 Binney, 72. A. M. Brown, for defendant in error, cited McMasters v. Penna. R. R., 19 P. F. Smith 374. Collins v. Hope, 3 Wash. C. C. 149. Snowden v. Warder, 3 Rawle, 101. Gordon et al. v. Little, 8 S. & R. 533. Helme v. Ins. Co., 11 P. F. Smith, 107. Act of Assembly April 20, 1858 (Ph. L. 363). Nov. 16, 1874. Judgment reversed, and a venire facias de novo awarded, THE COURT saying that the alleged custom, being derogatory of the rights of owners, must be so clearly proven as to leave no doubt as to its existence. As the evidence in this case was contradictory, it should not have been submitted to the jury. Õpinion by GORDON, J. Practice-Striking off decree pro confesso- This was a motion to strike off a decree against the defendant taken pro confesso for want of an ap pearance. The bill in the case was filed in August, but through inadvertence no appearance was entered for the defendant. Before the entering of the decree, defendant's counsel had appeared in open court on three occasions in connection with the case, and had been recognized as counsel by the plaintiff's attorney. A cross-bill had been filed by the defendant, and an agreement in the principal case for the appointment of a receiver had been filed containing the expression "by consent of defendant's counsel." Vanderslice, for motion, stated the above facts. Croasdale, contra. Motion granted. |