clean hands. The petitioner, by her own letters, C. A. V. Dec. 28, 1878. THE COURT. In June, 1863, James V. Peterson filed his libel in divorce, alleging desertion on the part of his wife, Sarah Peterson. May 25, 1865, an Examiner was appointed, and in June of the same year a divorce was decreed. of Smith v. Smith (3 Phila. 489, also reported as Boyd's Appeal, 2 Wright, 241) is authority here. The ground of divorce there was desertion. The depositions taken on behalf of the petitioner showed, as they do here, that there was no wilful and malicious desertion. Here, in addition, we have the resumption of the marital relation. It was argued here that in that case the year for an appeal had not elapsed, but that does not appear to have been considered material by the Supreme Court in that case, nor in the earlier case of Allen v. McClellan (2 Jones, 328). Ordinarily control of a judgment expires with the current term, but this rule does not hold where a judgment has been obtained surreptitiously or fraudulently. Nor does there seem to be any reason why it should where there is no one interested except the parties to it and their heirs. Both before Is there anything to conclude her? Ordinary knowledge, notice of any kind, ought to conclude parties after decree. But even if it is granted that she had actual knowledge, we think there was enough in this case to convince her that the proceedings had been abandoned. From his letters we find he made her several visits in 1865, and at least two other visits in that year are established by oral testimony. and after the divorce his visits were those of a man to his wife. How complete their reconciliation was at this time, before the divorce, is shown by the fact that soon afterwards she left her parents to go to him, notwithstanding his recognition of their great need of her, and his almost persuasion of her to remain with them. What else could she think but that all their difficulties were at an end? There is no evidence or pre This decree she now seeks to have vacated, on the grounds that, although she had notice of the institution of proceedings, she was led to believe that they had been discontinued, and she and her husband had resumed the marital relation before the decree, and continued in it for about two years after decree, and that there was no wilful and malicious desertion within the mean-tence that she knew more of the divorce than is ing of the Act of Assembly. Much of the testimony produced is that of the wife. We think that in this matter she should not be heard. Her husband being dead she is certainly within the spirit of the exceptions of the Act of 1869, and again, as at that time she was not a competent witness, she cannot be heard now to impeach the propriety of a divorce granted when her evidence would not have been received. We look therefore at the record. the evidence of other witnesses, of the letters of the libellant, and those of the respondent, produced on call. [The Court here recited the facts and correspondence at length.] Can this decree be vacated? The case is clear of certain elements which have embarrassed the consideration of others. Here there was no subsequent marriage, and the offer of the petitioner made in open court, to release her interest in all properties conveyed by her husband without her joining relieves it of all solicitude for purchasers, whether for value or not. The case contained in the correspondence. In the light of his intercourse with her, his frequent visits, their reunion and living together as man and wife, we must say that we believe that he led her to believe that the divorce suit, if she even knew of it, had been utterly abandoned, and that the decree obtained was a fraud upon her. Upon filing in this Court an agreement to release all grantees of property conveyed by her husband during coverture and after said decree, without her joining, from all claim of dower, and recording such a release in general terms as to such grantees in this county, the decree will be vacated. The above condition is made because of the offer of petitioner. Opinion by YERKES, J. C. P. No. 3. Appel v. Stein. Sept. 12, 1878. | attorney, dated August 23, 1873, for $326, payable in three years, with interest half-yearly. The Affidavit of defence law-Book entries-Lumping writ was issued returnable to first Monday of Aucharges for "mdse.” insufficient. Rule for judgment for want of a sufficient affidavit of defence. Assumpsit upon a book account. A copy of the plaintiff's book entries was filed as follows:LOUIS STEIN, Phila., Pa. 1878, March 15. To mdse. 66 April 5. To mdse. Credit mdse. ret'd, etc., $51.36. $49.55 gust, 1878. The affidavit of defence set forth, inter alia, that for several months previous to the execution of the bond and warrant of attorney on which the judgment in this case was obtained, G. W. Slemmer, a son of the deponent, was employed by the corporation plaintiff as ticket-agent at one of the stations on the line of its road; that while there he embezzled certain moneys belonging to the plaintiff, was arrested therefor, put under bail, and a criminal prosecution instituted. At this time the corporation plaintiff agreed with the deponent that if the latter would execute a bond and warrant of attorney, conditioned for the payment of an amount equal to the sum em There were other entries in the same form. The affidavit of defence averred, inter alia, that the copy filed was not such as to entitle plaintiff to judgment for want of a sufficient affidavit of defence, inasmuch as the items for each date are lumped under the single charge of mer-bezzled by the said G. W. Slemmer, the plaintiff chandise. George L. Crawford, for the rule, cited- Rule discharged. C. P. No. 3. C. A. V. Dec. 21, 1878. Lewis, Guardian, etc. v. Eddy. Ejectment by a guardian-Costs of defendant who secured the verdict-Attachment against the guardian refused. Rule to show cause why an attachment should not issue against the plaintiff for costs. This was an action of ejectment brought by John D. Lewis, as guardian of Clara E. Eddy, against the defendant, Joshua B. Eddy. The verdict was for defendant. The plaintiff having refused to pay the costs of the suit, amounting to $42, the defendant took his rule. J. A. Burton, for the rule. An attachment is the only means of compelling payment of these costs. Bigger v. Westby, 13 S. & R. 347. J. D. Lewis, contra, cited Callender's Admrs. v. Life Ins. Co., 11 Har. 471. C. A. V. would refrain from prosecuting him, and would Edward H. Weil, for the rule, relied upon- Act of March 31, 1860, regulating Criminal Proced- Rule absolute. C. P. No. 3. C. A. V. Jan. 11, 1879. Banking Co. to use, &c. v. Widdifield. New trial-Practice-Cause tried and verdict taken by default in the absence of defendant's counsel Circumstances sufficient in the discretion of the Court to excuse such absence. Rule to open judgment and set aside verdict. The deposition of defendant's counsel, in support of the rule, set forth that he had been in court on the day his case was set down for trial, before the calling of the list was begun; that not Sept. 12, 1878. seeing the counsel of record on the opposite side in the room, he went to look for him; that he believed he had seen him in No. 2 or No. 4; and Affidavit of defence-Bond-Consideration-that he had been misled by such absence of plainAgreement by plaintiff to refrain from prosecuting criminally the son of defendant-Whether illegal. Dec. 28, 1878. Rule discharged. C. P. No. 3. Railroad Co. v. Slemmer. Rule for judgment for want of a sufficient affidavit of defence. This was a sci. fa. to revive judgment entered upon a bond and warrant of tiff's attorney, and did not know until some time afterwards that the case had been called and a verdict had been taken against him. It further set forth a defence on the merits. Counsel against this rule was also called by defendant, and deposed that he was not counsel of record in the case and had not appeared in it before; that he R. R. Croasdale, for the rule. Loewenstien v. Biernbaum. Commission, taking testimony under-Effect of A commission had been issued to take testimony on the part of the defendant in New Mexico, but owing to various reasons its execution was delayed, and a final order was made to close the testimony on January 15, 1879. his widow, who died in 1869, leaving a will, whereby she directed that her estate should be held for the support of her children until the youngest should come of age, and appointed John H. Weeks executor. The eldest child died July 4, 1878, intestate, unmarried, and without issue. Of the survivors two are minors, of whom W. E. Mason is the guardian. In 1873 one of the daughters and her husband in her right petitioned the Court for a citation to the executor of her mother to file the administratrix's account of decedent's estate, which account was filed and audited. A credit was asked for the payment of $244.53, which money the decedent held at the time of his death, as treasurer of a certain society; this was refused on the ground that the money presumably was funds in kind in the hands of the deceased treasurer. A credit was asked for several payments of decedent's debts. Receipts were found, but the signers thereof had died or removed from the juris diction of the Court. This claim was disallowed because no sufficient proof was made of the debts having been paid by decedent. A credit was asked for the widow's claim of $300, which was disallowed on the ground that this claim could not be made after the widow's death. A credit was also asked for the payment of $89.60, paid to a creditor of decedent, and And a credit was claimed for the whole amount proved by the creditor's book, but was disallowed. The defendant alleged that one of the plain-used by her for the maintenance and support of received by the deceased administratrix for money tiff's attorneys had been present during the examination of witnesses, and that therefore the commission was vitiated, and a new one must be On January 20, 1879, the commission was duly returned. issued. herself and children, from the time of decedent's death to her own, which was disallowed. The whole value of the estate of the decedent which came into her hands as administratrix was above $5000. Exceptions were filed by the executor of the administratrix to all the rulings of the auditing judge. E. C. Mitchell, for the exceptant. The receipts of the creditors of decedent should have been received as prima facie evidence of payment. Romig's Appeal, 3 Norris, 235. It has been held that where the rights of third parties were not affected by the delay a widow might claim her $300 at the audit of the administration account. Kirkpatrick's Estate, 5 Phila. 98. Under the circumstances of the case the widow should have been allowed her claim for the maintenance and support of the children out of the decedent's estate. Strawbridge's Appeal, 5 Wh. 568. J. B. Devine (with whom was A. Thompson), WEEKLY NOTES OF CASES. The fund in controversy is claimed by the plaintiffs as the assignees of the policies and of the bonds and mortgages which the policies were assigned to secure; by Mary L. Rafsnyder VOL. VI.] THURSDAY, MARCH 13, 1879. [No. 31. as the purchaser of the premises covered by the Supreme Court. Jan. '79, 31. Jan. 23, 1879. insurance; and finally by the Spring Garden Insurance Company, who, while alleging that her right is better than the plaintiffs', ask to set off a demand against her growing out of an independent transaction. It results, from what has been said, that the controversy turns on the following point:-Is a mortgagee, to whom a permanent insurance has been assigned as a security, entitled to the pre Rafsnyder's Appeal. Insurance Premium on perpetual policy, who entitled to return of-Debtor and creditor-mium, on a sale being made of the mortgaged Collateral security-Mortgagee, rights of. A mortgagee to whom a perpetual policy of insurance has been assigned as collateral is entitled to the return premium upon a foreclosure of the mortgage and sale of the mortgaged premises for an amount insufficient to satisfy the debt. Appeal from the Common Pleas No. 2, of Philadelphia County. Bill in equity, by Hollis against the Spring Garden Insurance Company and Mary L. Raf snyder, praying that the company defendant be decreed to pay to the plaintiff the deposited premiums, less ten per cent., on certain perpetual policies of insurance, which policies the plaintiff offered to surrender to the company upon the payment of the money. An answer was filed, setting up, inter alia, that the policies contained the following conditions: premises which puts an end to his insurable interest and to that of the mortgagor? There can be little doubt that the inquiry should receive an affirmative reply. It is well settled that an assignment carries with it every incident or accessory which is essential to the use or enjoyment of the thing transferred, or that will conduce to the attainment of the end which the parties have in view; but the case before us hardly stands in need of this principle, because the right to rescind a contract and recover back the consideration is as much a part of the contract as the right to the amount which will be due if the contract goes into effect, and may equally well be exercised by one to whom the contract is assigned. The soundness of this reasoning was virtually conceded during the argument, but it was alleged to be inapplicable to the case in hand. Agreeably to the view taken for the defence, the assign"In all cases of sale of the property insured, where the ment under which the plaintiffs claim, was depolicy is not transferred, the deposit money may be with signed to indemnify them as mortgagees against drawn by the depositor or his legal representatives, if ap-loss by fire, and their right under it ceased when plied for within sixty days after such sale, subject to a deduction of ten per centum; but if not applied for within that time, the said deposit-money shall be considered as sunk for the benefit of the company." "Mortgagees and others to whom any policy shall have been transferred as collateral security, cannot withdraw the deposit-money on such policy." After argument upon bill and answer, the Court, HARE, P. J., delivered the following opinion, which contains a statement of all material facts: the lien of the mortgage was divested by the sheriff's sale. This argument might be entirely just if the insurance were of their interest as mortgagees, or if an insurance effected by a mortgagor became an insurance of the mortgage on being transferred to the mortgagee. It is, however, clear on authority and principle, that such a transfer does not alter the effect or nature of the policy, which remains as it was at first an insurance of the mortgagor's estate as the equitable Reinstein insured certain houses which had owner of the premises, and that what the mortbeen mortgaged to Altemus, and transferred the gagee acquires is not an interest in the insurance policies to the mortgagee as a collateral security. as such, but a right to appropriate the amount He then conveyed the houses to Mary L. Rafsny- which may become due under the contract, to der, and she also received from him an assign- the payment of the mortgage debt. (See The ment of the policies. The mortgages and policies State Insurance Company v. Roberts, 7 Casey, were subsequently assigned by Altemus to the 438; Carpenter v. The Washington Insurance plaintiffs, who issued writs of scire facias which Company, 16 Peters, 495, 512; Grosvenor v. The were prosecuted to judgment, and the mortgaged Atlantic Insurance Company, 17 New York, 391; premises sold by the sheriff for an amount which Macomber v. The Insurance Company, 8 Cushdid not satisfy the debt. The question before using, 133; Hale v. The Mechanics' Insurance is, who is entitled to the premium or deposit Company, 6 Gray, 169.) In other words the which was the consideration for the insurance? transfer is made to him as creditor as well as divested by the sheriff's sale, his interest in the Buckley v. Garrett, 10 Sm. 333. mortgagee, and the effect is nearly if not quite the same as if he were merely an obligee, and had no specific lien. Hence an assignment of a policy of insurance as collateral security for a bond and mortgage will not be invalidated by the discharge of the mortgage lien, so long as the bond remains and is unpaid; and if this is true as between the assignor and assignee it must be equally so of one claiming by virtue of a sub-mortgage, was to secure the payment of the debt. sequent assignment. It is no small argument in favor of the conclusion above indicated that it does exact justice among all the parties who have any right or title to the fund in dispute. The money is not only paid to the plaintiffs on account of the amount confessedly due to them on the bond, but it will go to discharge the liability which Reinstein and Mary L. Rafsnyder incurred by buying "under and subject to" the mortgage. Parties who deal with each other on a common basis, or in a matter in which all are interested, may reasonably be supposed to intend that the fruits of the transaction shall be appropriated in a way to be mutually beneficial, rather than to a purpose in The assignment of the policy, as well as the The object of the provision in the policy was to prevent the holder of the collateral from withdrawing the deposit-money, and leaving the houses uninsured. When the insurable interest has ceased, the condition also ceases. Getting the premium now from the company, and applying it to the payment of the debt secured by it, is not "withdrawing" it within the meaning of this provision in the policy. The owner, who is bound to pay the whole debt, and who has assigned the policies to secure the payment of the debt, cannot derive any benefit from the policies thus assigned, till he has paid the debt. A. D. Campbell appeared for the Insurance Company. and upon which one or more of them are not concerned : and when there is no countervailing reason a February 17, 1879. THE COURT. Nothing court of equity will be guided by this presump-can be added to the opinion of the learned Prestion in distributing the fund. Such is the prin-ident Judge, HARE, in the Court below, ciple on which securities in the hands of the that opinion we affirm the decree. creditor are used to exonerate the surety, and Decree affirmed and appeal dismissed at the those held by the surety to pay the debt; costs of the appellant. PER CURIAM and it applies a fortiori in the present instance where the motive for depositing the premium was to secure the mortgagee, as well as to indemnify the owner of the premises, and here both Jan. '78, 9. objects are accomplished by awarding the money to the plaintiffs. The defendants appealed, and assigned for error the decree of the Court. C. H. Hart, for the appellant. One condition of the policy was that "mortgagees and others to whom any policy shall have been transferred as collateral security, cannot withdraw the deposit money on such policy." This bound the mortgagee, who took the policy subject to all the stipulations contained in it. State Insurance Co. v. Roberts, 7 Casey, 443. Fire Association v. Williamson, 2 Casey, 196. The plaintiffs, in fact, only took the policies as collateral security against fire; besides, the law would conclude this from the transaction. As soon, therefore, as the mortgagee's interest was Scheuing v. Yard. Jan. 8, 1879. Practice-Points Specific answers to Construction of Act of March 24, 1877-Assignment of error— Omission to answer points specifically not ground for reversal. Under the Act of March 24, 1877, it is the duty of the Judge to reduce to writing his answers to the several points presented, and read them to the jury; but the Act does not declare that the omission so to do shall of itself be error for which the judgment shall be reversed. It is sufficient, in the review of the judgment, if the points are substantially answered in the charge. Error to the Common Pleas No. 2, of Philadelphia County. Sci. fa. sur mortgage executed by Conrad Scheuing to Charles Yard, executor of Mary P. Loxley, deceased, dated May 15, 1872. Upon the trial, before MITCHELL, J., it appeared that in 1872 the defendant, being in financial embarrassment, applied to C. T. Bonsall, who had been his attorney since 1869, to assist him through his troubles; that Yard had an office in the same building with Bonsall, and the latter, knowing that Yard had moneys of the |
