Loxley estate under his control, applied to him | fically; but so far as they were in proper form Geiger v. Welsh, I Rawle, 349. Act The Act of March 24, 1877, had been passed only eleven days before the trial, and this Court will not be astute in seeing grounds for reversal on account of non-compliance with an unknown The Act of 1877 is identical with the Act of April 17, 1856 (P. L. 396), and it has been held that the latter is only directory, and that, under it, it is not necessary that the Court should answer the points separately, if they are substantially answered in the charge. Patterson v. Kountz, supra. It was contended by each party that at the time of the misappropriation Bonsall was acting as attorney for the other, and the Court, in the charge, left this, with the questions of the actual amount used for the benefit of Scheuing, and of Yard's participation in the breach of trust as to the balance, to the jury. The defendant's counsel presented a number of points relative to the agency of Bonsall, which were not answered by the Court otherwise than in the general charge. Verdict for plaintiff for $15,000, and judgment thereon. The defendant took this writ, assigning as error, inter alia, the omission of the Court to affirm or disapprove, or take specific notice of, his points. The points and the remaining assignments of error are not material to this report. E. Spencer Miller (with whom was W. G. Foulke), for the plaintiff in error. Under the Act of March 24, 1877 (P. L. 38),* it was error in the Court not to specifically answer the points presented. We were entitled to ground for reversal the act is of no utility, and becomes a mere dead letter. A remedy by impeachment is practically no remedy; it would be a penalty never to be resorted to. a simple and direct answer. Unless this error beger v. Hackenberg, 13 S. & R. 26; Patterson v. Kountz, 13 P. F. Smith, 246.) It is sufficient therefore in the review of the judgment in this Court if the points are substantially answered in the charge. (Patterson v. Kountz, 13 P. F. Smith, 250, and cases there cited.) We think the points of the defendant below were substan tially answered, and the charge was in all respects as favorable to him as he could ask. He stated in his own testimony that he had directed Yard to pay the money to Bonsall. Yard could then not be responsible for the misappropriation of the money by Bonsall, unless he was in some way a party to such a misappropriation. There was no evidence in the cause that Bonsall acted as the agent of both parties in the receipt and disbursement of the money. Scheuing said expressly: "It was agreed that the judgments should be paid off by Mr. Yard giving the money to Mr. Bonsali." That is, Scheuing constituted Bonsall his attorney to receive and disburse the money which he thereby authorized Yard to pay John G. Johnson (with whom was Henry S. January 27, 1879. THE COURT. While the Act of March 24, 1877 (Pamph. L. 38), undoubtedly makes it the duty of a Judge to reduce his answers to the several points presented to writing, and read them to the jury before they retire to consider of their verdict, it does not declare that the omission to do so shall be error for which the judgment shall be reversed. The neglect or omission then cannot avail the plaintiff. Such has been the uniform ruling of this Court in the construction of Acts of this character. (Morber This Act provides: 4. Whenever in the trial of a cause before any of the judges of the several courts of Common Pleas within this Commonwealth, if any of the parties or their counsel shall request the Court to charge the jury on particular points of law drawn up in writing and handed to the Court before the close of the argument to the jury, the Judge who charges the jury shall reduce the answers to the points to writing, and read them to the jury before they retire from the bar to consider the verdict; and the said points and answers thereto shall be filed immediately by the Court or Judge, and become part of the records of the case for the purposes of error. 5. The charge and answers of the Court to points in all cases when filed shall be part of the record for the purposes of assignment of errors. him. There was nothing then on which to July, '78, 89. Court on the ground that he had paid over the balance before the husband's claim was made known, and on February 4, 1878, the decree of the Orphans' Court was reversed, and the record remitted for a further hearing to determine whether the money awarded to the husband had been actually paid over to Mrs. Conrad in accordance with the decree of May 6, 1876, beIfore notice of the application for a review. Jan. 28, 1879. (See Stewart's Appeal, 5 WEEKLY NOTES, 456.) Accordingly on February 16, 1878, the Orphans' Court appointed a Master and Examiner (Franklin Swayne) to take testimony on this point. On March 26 the Master filed his report, finding the facts substantially as they are here stated, and on June 1 the Orphans' Court vacated the order of April 27, 1876, opening the audit and adjudication; dismissed Charlton's exceptions of that date; and set aside the supplemental and corrected adjudication filed December 8, 1876. Charlton thereupon took this appeal, assigning for error the decree of the Orphans' Court. P. Archer, Jr., for the appellant. Act of Oct. 13, 1840, Purd. Dig. 1109, pl. 49. Charlton's Appeal. Decedent's estates—Administrators, accounts of -Review of final decree-Not allowed when it will work hardship to an innocent administrator-Act of October 13, 1840. An administrator who has paid over money to a distributee in accordance with a decree of the Orphans' Court, will be protected against loss by reason of a subsequent opening and change of the decree. Stewart's Appeal, 5 WEEKLY NOTES, 135, affirmed. Voluntary payments by an administrator are protected by a subsequent decree in favor of the person to whom they have been made. Appeal from the Orphans' Court of Philadelphia County. This case came up in the Court below on exceptions filed by W. M. Charlton to the report of the Master and Examiner appointed to take testimony as to certain payments of T. Stewart, administrator of the estate of Mary Ann Charlton. The material facts are briefly as follows: Mary Ann Charlton died on January 27, 1875, and on February 5, 1876, T. Stewart, the administrator of her estate, filed his account, showing a balance for distribution of $2351.56. On April 3, 1876, this account was confirmed nisi, and the balance in the administrator's hands was awarded to Mary Ann Conrad, the decedent's only daughter. On April 24, no exceptions being on file, this confirmation became absolute, sec. reg. Stewart had already advanced $1850 to Mrs. Conrad at various times in the year 1875, and on May 9, under an ex parte decree of the Orphans' Court made May 6, he paid her $488.16. These sums with $13.50, the Orphans' Court costs, made up the amount with which he charged himself in the account. On April 27, three days after the account was confirmed absolutely, W. M. Charlton filed exceptions thereto, and the audit and adjudication were opened, but the administrator had no notice of these proceedings when he made the payment of May 9. Nevertheless on December 8 of the same year a corrected adjudication was filed, directing the administrator to pay W. M. Charl-phans' Court for verity, and we see no reason ton, as husband of Mary Ann Charlton, $1175.83, why we should not do so, neither the administraone-half of the balance for distribution. From tor nor his counsel had notice of the filing of the this decree Stewart appealed to the Supreme exceptions of April 27, 1876, until after the February 17, 1879. THE COURT. If we are to adopt the decision of this Court made one year ago in Stewart's Appeal (5 WEEKLY NOTES, 135), we cannot convict the Court below of error. In that case our brother the present Chief Justice said: "If the sum or any part of it was actually paid over according to the decree before notice of the application for a review, both the express provisions of the Act of 1840 and the plain dictates of justice and equity require that the appellant should be protected." Now, if we are to take the finding of the Or H. F. Hepburn, contra, was not present and presented no paper-book. entire balance had been paid over to the dis- | should not be made directing the administrator tributee in accordance with the decree of the to pay over the balance of the estate in his Court. Such being the case the former decision hands to Jane Woods; and it was ordered that governs, and the present ruling of the Orphans' notice of the rule should be given by publication Court must be affirmed. It was urged that that once a week for two weeks in the Legal Intelpart of the money of the estate which the ad-ligencer, the Philadelphia Inquirer, and the New ministrator paid to Mrs. Conrad before the date York Herald. On Sep. 21, 1878, on proof of of the decree, he paid at his own risk. This is publication, an order to pay over was entered true, but only at the risk of a decree in favor of in accordance with the notice. The administrathe person to whom he paid it; when, however, tor took this appeal, assigning for error the that decree was made, his risk was at an end, granting of the rule to pay over while the adjudisince that decree covered not only the balance cation was open, in pursuance of the order of remaining in his hands, but all previous pay- June 15, 1878, and while the claim of the ments. In other words, the decree of the 3d of alleged heir was still undetermined. After the April, 1876, determined definitely that Mrs. appeal was taken, the record was amended by Conrad was entitled to the whole sum of rescinding the order of June 15, 1878, opening $2351.56, and so it was not merely an order to the adjudication. pay over to her the balance, but it was an approval also of the payments previously made. It was a final adjudication that she was the scle distributee, and when her claims were met and satisfied, that was an end of the matter. Decree affirmed, appellant to pay costs. Jan. '79, 33. H. C. Titus (with him B. L. Temple), for the appellant. The order to pay over was made before final settlement of the administrator's account, for the order opening the adjudication was still in force. The Act of Assembly provides for such proceeding after final settlement. [MERCUR, J. How is the administrator interested in the distribution of this fund?] He has been notified that he will be held personally liable, if he pays the fund over. The Jan. 31, 1879. Act only protects him where the Court had jurisdiction; in this case it had not jurisdiction, because the decree was made before final settlement. Gallagher's Appeal. Decedents' estates-Errors and appeals-Administrator-Right of to appeal. An administrator, whose account has been confirmed and who has been ordered to pay over the balance in his hands to the parties entitled thereto, has no such interest in the estate as administrator as will entitle him to appeal on behalf of creditors or others claiming to be entitled to a distributive share. Appeal from the Orphans' Court of Philadelphia County. This was an appeal by Wm. J. Gallagher, administrator of the estate of George Woods, deceased, from a decree of the Orphans' Court, ordering him to pay over the balance of the estate in his hands to Jane Woods, the widow.of decedent. The administrator's account was confirmed absolutely in the Court below on May 25, 1878, and on the same day exceptions filed by an attorney, J. C. Redheffer, claiming to represent as attorney parties interested in the estate, were dismissed. On June 15, 1878, the account was indorsed by one of the judges of the Orphans' Court, "Adjudication opened-W. N. ASHMAN." On July 13, 1878, on petition of the widow claiming the benefit of the Act of 6th April, 1833 (P. L. 207, Purd. Dig. 809, § 29), a rule was granted on all heirs, etc., to appear on Sept. 21, 1878, and show cause why an order Chas. Davis, for appellee. The order opening the adjudication was rescinded while the record was still in the Orphans' Court. The administrator has no such interest as will entitle him to appeal. February 10, 1879. THE COURT. This is an appeal by the administrator of the estate of George Woods, from the decree of the Orphans' Court awarding the residue of the estate of the decedent to his widow. His account having been confirmed, he has no interest, as such administrator, in any decree of distribution the Court may make of the fund. He is not so far the representative of creditors as to authorize him to interfere in the distribution. His full duty therein will be discharged by paying over the fund, in pursuance of the decree of the Court. He, therefore, has no standing which will permit him to change or delay the execution of the decree distributing the fund. The appeal is therefore quashed. PER CURIAM. July '71, 155. a Feb. 16, 1872. would apply to the department of highways for the contract. Upon application, the department declined to enter into the contract with Peters, and a mandamus was accordingly issued to the highway department. The defendants made return denying that Peters had been selected by majority of the owners of property on Orthodox Street, and averring that the surveyor of the district had certified to them that a majority of such owners had selected Johnson and Faunce, and evidence of such fact was attached to the return. The replication traversed the return, and a trial resulted in a verdict for Peters. A writ of error, entitled of July T., 1871, No. 13, was taken to the refusal of the Court to charge : "That if there was not an exclusive selection of the relator, the defendants were vested with a discretion, and the verdict should be for the defendants." The Court having charged that "the selection of Peters made by the owners exhausted their power under the ordinance, and if the selection was acted upon by Peters, they were estopped from making any other selection after that with "" out cause.' Dickinson et al. v. Peters.* Highway department - Mandamus-Paving Resolutions of Councils, partial repeal of one resolution by another-Power of Councils to repeal, pending litigation-Power of Councils to award contract for paving without choice of property owners-What constitutes a new proceeding.. The Councils of the city of Philadelphia may, by resolution, award a contract for paving to a person not the choice of the majority of the owners of the property liable for the paving, or without giving them the opportunity to select a paver. After passage of a resolution for paving, which provided for the mode of selection of a paver, and pending litigation concerning choice of the same, the Councils of the city of Philadelphia have the power, by subsequent resolution, to award the contract to a person therein named. The Councils of Philadelphia by resolution directed the department of highways "to enter into a contract with a competent paver to be selected by a majority of owners of property on Orthodox Street, etc., for the paving thereof." A majority of the owners made choice of a paver, and before the award of the contract to him, a second choice. On petition of the first nominee, a mandamus was issued commanding the highway department to enter into the contract with him, and, pending decision of the Supreme Court on a writ of error thereto, the City Councils, by resolution, awarded him the contract to pave Orthodox Street in ac cordance with the prior resolution. A second mandamus was issued upon petition of the first nominee : Held, sustaining the Court below, that the latter resolu-Resolution to authorize the paving of Orthodox and other tion repealed the former in the mode of the choice of pavers, and in the direction to enter into a contract with the petitioner, and that the second mandamus was a new proceeding. "Resolved, etc., that the commissioners of highways be directed to forthwith award and enter into a contract with Emanuel Peters, for paving Orthodox Street, from Frankford Street to Tacony Street, Twenty-third Ward, in accordance with resolution of November 13, 1869, entitled streets. Under this resolution, a majority of the owners selected Emanuel Peters as paver, whereupon Peters gave notice by advertisement, that he Pending this writ* Councils passed the resolution of May 5, 1871, as follows: *This case, decided in 1872, has not heretofore been reported. : Upon demand, the department of highways again refused to award the contract to Peters, and he filed a second petition for an alternative into the contract with him, or show cause why mandamus commanding them to forthwith enter they should not do so. "Resolved, etc., that the department of highways be and is hereby authorized and directed to enter into a contract with a competent paver or pavers, who shall be selected by a majority of the owners of property fronting on Orthodox Street, from Frankford Street to Tacony Road (in the Twenty-third Ward), for the paving thereof; the conditions of which contract shall be, that the contractor or contractors collect the cost of said paving from the property owners respectively, and will also enter into an obligation Upon demurrer to this return, the Court ordered the peremptory mandamus, and subse with the city to keep the said street in good order for threequently an attachment, to issue: and under pain years after the paving is finished." of punishment for contempt, the contract was awarded to the relator. The return of the defendants averred their willingness to award the contract to the relator when they could do so in accordance with the resolution of November 13, 1869; that they had not done so as yet because they believed he was not selected in accordance with the terms thereof; and that in consequence of their refusal, they had already been impleaded in a suit now pending in the Supreme Court, which suit would finally adjudicate the rights of the relator, and until which time they could not be peremptorily commanded in the present action. The defendants took this writ, assigning as error the sustaining of the demurrer, and the issuing of the attachment. * See note at end of case. David W. Sellers, for the plaintiffs in error. nance of November 13, 1869, was therefore not The resolution of 1869 was not repealed by in the way, and the answer of the Commissioners the resolution of 1871; the latter directed the of Highways was consequently evasive. Under department to perform a duty in accordance with the ordinance of May 5, 1871, no discretion was the terms of the former. No other return could left, but it becomes the duty of the Commissionhave been made in view of the facts that the re-ers forthwith to enter into a contract with Peters. lator was not the choice of the majority of the owners, and that they had been prevented from carrying out the first resolution by the ruling of the Court which was before the Supreme Court for review. [The errors assigned to the issuing of the first mandamus were argued in the Supreme Court a few days before the argument of the principal case; and the Supreme by the majority of the owners was revocable before the Court held, reversing the Court below, that the selection award of the contract, and that a discretion was vested exclusively in the department of highways to determine the competency of the paver selected. (Vide Dickinson et al. v. Peters, 21 Sm. 53.) The first branch of this decision Philadelphia County, to a revocation by a sufficient numwas subsequently applied in the Common Pleas No. 4, of ber of owners to leave their former choice in the minority but without their making any subsequent selection; not withstanding notice of revocation and protest to the high The issuing of the attachment was inconside-way department, the contract was awarded to their former rate. The provision in the Act of June 14, 1836, nominee. The Court, following Dickinson v. Peters $32, that the Court may carry their judgment (supra), held that the highway department had exceeded into execution, notwithstanding the writ of error, Phila, and Reading R. R. Co., 4 WEEKLY NOTES, 226.] their power in awarding the contract. See O'Rourke v. means that special cause must be assigned therefor before it shall be done. Woodward and Hopple, for the defendant in If the two resolutions can stand together, the suggestion in the return that the relator cannot have two suits for a mandamus in the same cause of action, was sufficient. The question in both suits is whether or not the relator was entitled to the contract under the resolution of 1869, and the pendency of the other suit is a sufficient answer to this one. Baxley v. Linah, 4 H. 241. Wetherill v. Stilleman, 15 Sm. 115. error. We see no error in the record, and the judgment is affirmed. PER CURIAM. The present suit is based exclusively upon the refusal of the highway department to comply with the directions contained in the resolution of 1871. The Court has the express power to compel obedience by attachment to a writ of peremptory mandamus, notwithstanding a writ of error may have issued. Its action in that relation is a matter of discretion, and not reviewable here. February 26, 1872. THE COURT. The ordinance of May 5, 1871, repealed that of November 13, 1869, only so far as it related to the selection of the paver. The latter ordinance stood as the authority for paving the street, the collection of the expenses of paving from the owners of property, and the obligation of the paver to maintain the street in good repair for three years after finishing the work. But the repeal of the mode of selecting the paver, and the order to enter into a contract with Emanuel Peters to pave Orthodox Street, made the present petition for a mandamus a new proceeding. The pendency of the former writ of error to the proceedings founded on the ordi July '78, 100. Lingg v. Blumner. The Councils, by the resolution of 1871, explicitly directed the award of the contract to Peters. reference to the resolution of 1869 was essential, Bills and notes-Rights of holder-Affidavit of and means simply that the terms of the contract and the manner of paving should be in accordance with its terms. defence, insufficiency of. Jan. 31, 1879. The omission of a note broker to pay over to the maker the proceeds of a note placed with him for discount, is no the maker, the affidavit of defence set out that the plaintiff In a suit upon a promissory note by the indorsee against had informed the indorser that he did not buy the note with his money, and further averred information and belief that the suit was brought by plaintiff in his name in order to prevent defendant from defeating payment in the hands of a note broker, with whom the note had been deposited for sale, but who had retained it as security for a debt owing him by the indorser: Held (affirming the Court below), not to be sufficient. Error to the Common Pleas No. 1, of Philadelphia County. Assumpsit by Blumner against Lingg & Bro., upon a promissory note drawn by defendants to the order of J. F. Stokes, and by him indorsed. The plaintiff having filed a copy of the note, an affidavit of defence was filed, setting forth that the defendants had given the note in suit to one Elliott, a note broker, to sell and pay over the proceeds to them; that Elliott had held the note as security for a debt owing him by Stokes, and refused to return the note to defendants, or |
