Loxley estate under his control, applied to him | fically; but so far as they were in proper form for the loan; that Yard had business relations to be answered, they were sufficiently answered with Bonsall in slate quarrying, etc., placed con- in the general charge. They were worked into fidence in him, agreed to advance the money, and took Bonsall as his counsel in making the investment; that two mortgages for $30,000 were executed, and the money, or a portion of it, was handed over at different times to Bonsall; that Scheuing did not get the benefit of all the money, but that much of it had been misapplied by Bonsall. It further appeared that a portion of the amount advanced was to be used by Bonsall in the release of existing liens on the mortgaged property before any payments should be made to Scheuing.

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.

the body of the charge in connection with the
evidence relating to them, and thus more clearly
presented to the minds of the jury. The inten-
tion on the part of the Court to do this was an-
nounced, no objection was made, and it has
repeatedly been held proper so to do.
Geiger v. Welsh, 1 Rawle, 349.
Stewart v. Shoenfelt, 13 S. & R. 368.
Coates v. Roberts, 4 Rawle, 100.
Lynch v. Welsh, 3 Barr, 297.
McCoy v. Hance, 4 Casey, 149.
Groft v. Weakland, 10 Id. 304.
Deaker v. Temple, 5 Wr. 242.

Patterson v. Kountz, 13 Sm. 250.

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 of April 17, 1856 (P. L. 396), and it has been Act The Act of 1877 is identical with the Act 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.

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

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 a simple and direct answer. Unless this error beger v. Hackenberg, 13 S. & R. 26; Patterson v. ground for reversal the act is of no utility, and becomes a mere dead letter. A remedy by im peachment is practically no remedy; it would be a penalty never to be resorted to.

John G. Johnson (with whom was Henry S. Hagert), for the defendant in error.

The Court declined to affirm the points speci

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.

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 substantially 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


There was nothing then on which to ground the defendant's seventh point. The questions in the cause were essentially questions of fact, and were properly submitted to the jury. Judgment affirmed. PER CURIAM.

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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, before 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.

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.

P. Archer, Jr., for the appellant. Although the payment of $488.16, if made in Appeal from the Orphans' Court of Philadel-good faith without notice of the filing of Charlphia County.

ton's exceptions and the opening of the adjudi-
cation, is perhaps protected by the decree of
May 6, the administrator is nevertheless liable
for the $1850 which he voluntarily paid to Mrs.
Conrad at various times during the year 1875.
These payments are protected by no order of
Court, and the amount they involve is more than
sufficient to satisfy the appellant's claim.

Act of Oct. 13, 1840, Purd. Dig. 1109, pl. 49.
Whelen's Appeal, 20 Sm. 428.
Kinter's Appeal, 12 Id. 322.
Russell's Appeal, 10 Cas. 261.
Moorhead's Appeal, 8 Id. 298.
Dougherty v. Snyder, 15 S. & R. 89.
Swearingen v. Pendleton, 4 Id. 394.
Costen's Appeal, 1 Har. 292.

H. F. Hepburn, contra, was not present and presented no paper-book.

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 February 17, 1879. THE COURT. If we are decree of the Orphans' Court made May 6, he to adopt the decision of this Court made one paid her $488.16. These sums with $13.50, the year ago in Stewart's Appeal (5 WEEKLY NOTES, Orphans' Court costs, made up the amount with 135), we cannot convict the Court below of which he charged himself in the account. error. In that case our brother the present April 27, three days after the account was con- Chief Justice said: "If the sum or any part of firmed absolutely, W. M. Charlton filed excep- it was actually paid over according to the decree tions thereto, and the audit and adjudication before notice of the application for a review, were opened, but the administrator had no notice both the express provisions of the Act of 1840 of these proceedings when he made the payment and the plain dictates of justice and equity reof May 9. Nevertheless on December 8 of the quire that the appellant should be protected." same year a corrected adjudication was filed, Now, if we are to take the finding of the Ordirecting 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


should not be made directing the administrator to pay over the balance of the estate in his hands to Jane Woods; and it was ordered that notice of the rule should be given by publication once a week for two weeks in the Legal Intel

entire balance had been paid over to the distributee in accordance with the decree of the Court. Such being the case the former decision governs, and the present ruling of the Orphans' Court must be affirmed. It was urged that that part of the money of the estate which the ad-ligencer, the Philadelphia Inquirer, and the New ministrator paid to Mrs. Conrad before the date of the decree, he paid at his own risk. This is true, but only at the risk of a decree in favor of the person to whom he paid it; when, however, that decree was made, his risk was at an end, since that decree covered not only the balance remaining in his hands, but all previous payments. In other words, the decree of the 3d of April, 1876, determined definitely that Mrs. Conrad was entitled to the whole sum of $2351.56, and so it was not merely an order to 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.
Opinion by GORDON, J.

Jan. '79, 33.

York Herald. On Sep. 21, 1878, on proof of publication, an order to pay over was entered in accordance with the notice. The administrator took this appeal, assigning for error the granting of the rule to pay over while the adjudication was open, in pursuance of the order of June 15, 1878, and while the claim of the alleged heir was still undetermined. After the appeal was taken, the record was amended by rescinding the order of June 15, 1878, opening the adjudication.

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.


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.

July '71, 155.

Dickinson et al. v. Peters.*

Highway department - Mandamus-PavingResolutions 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..

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 a 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: 66 'That if there was not an exclusive selection of

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 resolution 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.

Error to the old Common Pleas of Philadelphia County.

A petition for a mandamus was filed by Emanuel Peters against the highway department of the city of Philadelphia upon the following state of


On November 13, 1869, the Select and Common Councils of the city of Philadelphia passed a resolution in these words:

"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 with the city to keep the said street in good order for three years after the paving is finished."

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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 without cause."

Pending this writ* Councils passed the resolution of May 5, 1871, as follows:

"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 'Resolution to authorize the paving of Orthodox and other


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.

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 selected in accordance with the terms thereof; not done so as yet because they believed he was 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.

Upon demurrer to this return, the Court ordered the peremptory mandamus, and subsequently an attachment, to issue and under pain of punishment for contempt, the contract was awarded to the relator.

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. The resolution of 1869 was not repealed by the resolution of 1871; the latter directed the department to perform a duty in accordance with the terms of the former. No other return could have been made in view of the facts that the relator 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.

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.

nance of November 13, 1869, was therefore not in the way, and the answer of the Commissioners of Highways was consequently evasive. Under the ordinance of May 5, 1871, no discretion was left, but it becomes the duty of the Commissioners forthwith to enter into a contract with Peters. We see no error in the record, and the judgment is affirmed.


[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 was subsequently applied in the Common Pleas No. 4, of Philadelphia County, to a revocation by a sufficient number 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

nominee. The Court, following Dickinson v. Peters (supra), held that the highway department had exceeded Phila, and Reading R. R. Co., 4 WEEKLY NOTES, 226.] their power in awarding the contract. See O'Rourke v.

The issuing of the attachment was inconside-way department, the contract was awarded to their former The provision in the Act of June 14, 1836, $32, that the Court may carry their judgment into execution, notwithstanding the writ of error, means that special cause must be assigned therefor before it shall be done.

Woodward and Hopple, for the defendant in



July '78, 100.

Lingg v. Blumner.

Jan. 31, 1879.

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 accord ance with its terms.

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

defence, insufficiency of.

The omission of a note broker to pay over to the maker the proceeds of a note placed with him for discount, is no defence to a suit brought by a subsequent holder of the is not a holder for value. note, unless there is a distinct averment that the plaintiff

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

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