Jan. '77, 70. Jan. 7, 1879. Ashland Banking Co. v. Wolf. Promissory notes-Notice of non-payment, when defective as against indorsers. A promissory note fell due on July 18, 1875. That day being Sunday, on the 17th, the following notice, dated by mistake, July 15, 1875, was sent to the indorsers: "Payment of W. P.'s note, dated May 15, 1875, being this day due, demanded and refused, it has been delivered to me for protest," etc. The letter containing this notice was postmarked July 19, and received the same day. Suit having been brought against the indorsers, they suggested by their affidavit of defence, alleging the above facts, that they were not liable, and the Court discharged a rule for judgment for want of a sufficient affidavit of defence. Held, affirming the Court below, that as the indorsers might have been misled by the notice, the protest was in sufficient. Error to the Common Pleas No. 1, of Philadelphia County. Assumpsit on a promissory note, brought by the Ashland Banking Co. against A. and B. Wolf, trading as A. Wolf & Son. The note was drawn by Peiffer, on May 15, 1875, was payable two months after date to the order of the defendants, and by them indorsed. The affidavit of defence suggested that there was no liability on the part of the defendants, for the reason that the note was not properly protested; that the note fell due on July 18, 1875, and that on July 19 the defendants received the following letter, postmarked the same day :"Ashland, Pa., July 15, 1875. Payment of Wm. Peiffer's note in favor of yourselves, and by you indorsed, for one hundred dollars, dated May 15, 1875, being this day due, demanded and refused, it has been delivered to me for protest by the Ashland Banking Co., in the county of Schuylkill, the holder; and I have this day protested it accordingly, and you will he looked to for the payment of the same; of all which you hereby have notice. W. A. KENTZLE, Notary Public. To A. WOLF & SON." The defendants averred that no other notice had been sent to, or received by, them. The plaintiffs obtained a rule for judgment for want of a sufficient affidavit of defence, which was written July 15, through a clerical error. The error was made more apparent by the postmark, July 19. On this day the letter was received, and it could not have been received earlier. A mistake in the notice by which an indorser could not have been misled is immaterial. Tobey v. Lennig, 2 Harris, 484. H. Budd, Jr. (with him R. Ingram), contra. An indorser becomes liable only after demand on the maker, on the day of maturity, default by him, and due notice sent on the same day. The plaintiff in error contends that the indorsers were bound to know the day of the maturity of this note. They did know it was payable on July 17, consequently notice that it was due, and that payment was demanded and refused on July 15, led them to believe that the notary had acted prematurely-non constat, that the note was not paid at maturity. A postmark is evidence of nothing but the date of mailing the letter. The letter may have been delayed. This case is governed by— Etting v. The Bank, 2 Barr, 355. Carr, in reply. Etting v. The Bank belongs to that class of cases where the defect in the notice is not cured by any matter therein appearing. Here a manifest error is corrected by the date of the maturity of the note. January 20, 1879. THE COURT. The mistake of the notary in the notice of non-payment may have misled the defendant. The note was due July 17, and he was informed that payment was demanded and refused July 15. The fact that the notice was mailed July 19 had no tendency to correct the error, he might reasonably have concluded that there had been a premature demand, and neglect in mailing the letter, or a mistake in the post-office. Etting v. The Bank (2 Barr, 355) rules this case. Writ of error dismissed at the costs of the plaintiff, and record remitted. PER CURIAM. the court discharged, whereupon they took this Jan. '78, 158. writ, assigning that order for error. W. W. Carr (with him G. M. Dallas), for the plaintiffs in error. The last day of grace falling, as the calendar shows, on Sunday, July 18, the 17th was the proper day for demand of payment. That the demand and refusal occurred on the 17th, and that notice was sent on that day, appears from the face of the notice. The note being this day due," the notice was sent after demand and refusal. The indorsers were presumed to know the date of the maturity of the note. The date Decedents' estates. Powers of the Orphans' Court-Assignment of legacy-Attaching creditor of legatee-When the judgment of the Orphans' Court is conclusive-Res adjudicata -Estoppel. The Orphans' Court, as an incident to the power of distribution, being competent to decide all questions in the tees, etc., its judgment is conclusive upon parties submitof distribution as against creditors, assignees of legating themselves to its decree. way While an attaching creditor of a legatee may not be compelled to present his claim in the Orphans' Court, yet if he submit himself, an adjudication against him, unappealed from, is final, and estops him from proceeding upon an attachment in the Common Pleas. Error to the Common Pleas No. 2, of Philadelphia County. This was an attachment execution in which A. J. Gallagher was plaintiff, S. S. Norcross defendant, and Otterson et al. executors of E. P. Middleton, garnishees. Upon the trial the following facts appeared: have been held to refer only to legatees, next of kin, heirs, etc. Kittera's Estate (supra). Hammett's Appeal, 2 Norris, 392. And do not include an attaching creditor. No argument can be predicated upon our having appeared in the Orphans' Court, for consent will not give jurisdiction. Willard's Appeal, 15 Sm. 265. Livingston's Appeal, 6 WEEKLY NOTES, 310. E. P. Middleton, by his last will, bequeathed March 3, 1879. THE COURT. This record to his sister Hannah Norcross the interest of presents but a single question. The plaintiffs $10,000 during her life, and, at her decease, he in error were the garnishees below in an attachdirected the principal sum to be divided equally ment sur judgment, in which A. J. Gallagher, among such of her children as should survive the defendant in error, was plaintiff, and one her. Mrs. Norcross died April 4, 1877, leaving Samuel S. Norcross, defendant. The subject of four children. Upon the audit of the account of the attachment was a legacy in the hands of the the executors in the Orphans' Court, the share of garnishees as executors of the last will and testaSamuel S. Norcross, one of the children, was ment of Edward P. Middleton, deceased. Upon claimed by John Graham, by virtue of a general the trial of the attachment, the garnishees offered assignment, duly executed for a valuable consid-in evidence the record of the Orphans' Court, eration, bearing date April 2, 1877, and by A. showing the settlement of their accounts as exeJ. Gallagher, a judgment creditor, upon whose cutors, and the adjudication by that Court of the judgment an attachment had been issued April question of the right of the attaching creditors to 10, 1877. The auditing Judge (HANNA, J.) the legacy. The Court below excluded the reawarded the legacy to Graham, the assignee. cord, and this ruling is assigned for error. Upon the trial of the attachment suit in the Common Pleas, before FELL, J., the garnishees offered in evidence the record of the Orphans' Court, which was rejected by the Court, and an exception taken. Verdict and judgment for plaintiff; the garnishees took this writ, assigning for error the re fusal of the Court to admit their evidence. F. Carroll Brewster (R. H. Hinckley and F. E. Brewster with him), for plaintiffs in error. The identical question raised by the pleadings in the Court below had been ruled against the plaintiff below by the Orphans' Court, and he was estopped from bringing another action. Duchess of Kingston's Case, 20 How. St. Tr. 538. Act of 1832, Sec. 37, Br. Purd. 1106, pl. 18. An examination of said record shows that the defendant in error appeared, by his counsel, before the auditing Judge of the Orphans' Court, as distributee of a portion of the fund in the hands an attaching creditor of Samuel S. Norcross, a of accountants; that "the sole question before the Court was as to who was entitled to the dis tributive share of Samuel S. Norcross in the legacy which formed the corpus of the trust estate." amount of the share of Norcross should be directed judgments issued by creditors of Norcross against the accountants as garnishees. The Court proceeded to hear the case, the counsel for defendant in error being present, and participating in the examination of the witnesses, and finally decided it adversely to the attaching creditors, upon the ground that the legacy to Norcross had been bona fide assigned prior to the attachments. A formal decree was entered in the Orphans' Court, awarding the legacy to Graham, the assignee of Norcross, from which decree no appeal has ever been taken by the defendant in error. It is, therefore, a conclusive adjudication, so far as the plaintiffs in error are concerned, that they have in their hands as executors a certain sum of money The general words of the Act of 1832 (supra) | belonging to John Graham. Being mere stake McMurray v. Davis, 5 WEEKLY NOTES, 305. If the ruling of the Court below be correct, the plaintiffs in error find themselves in the awkward position of having two judgments against them for the same sum of money in favor of different parties. If the Orphans' Court were in error, it lay upon the defendant in error to show wherein that error lay; the plaintiffs in error could not have appealed from the adjudication. Theo. F. Jenkins, for defendant in error. holders, they had no appeal from a decree of dis- | the assignee of the legatee. The attaching credittribution. Was the decree of the Orphans' Court ors claimed it by virtue of their attachments. binding upon the attaching creditors? If not, the plaintiffs in error are in the awkward predicament of having two judgments against them for the same matter in two courts, each of competent jurisdiction. There must be error somewhere to produce such a result. Under the authorities cited, it is very clear that the Orphans' Court being clothed with the power of distribution was competent to decide all questions in the way of distribution. The rights of legatees, next of kin, claims of creditors, the validity of assignments of such claims and quesWe do not think it necessary to discuss at length sions of priority of lien, are within the recognized the powers and jurisdiction of the Orphans' Court. powers of the Orphans' Court. In distribution The whole subject has been gone over so recently proceedings it has been decided that the Court as Lippincott's Appeal in Dundas's Estate (23 P. has authority to determine the title of contesting F. S. 474). Most of the cases, as well as Acts of claimants to the same fund as an incident of the Assembly, bearing upon this branch of the law, distribution. (Souder's Appeal, 7 P. F. S. 498.) will be found there cited, either in the opinion The parties to this contention claimed the same of the Court, or the arguments of counsel. It fund, the one by assignment, the other by virtue was said by the learned Judge, in delivering the of his attachment, which is a species of statutory opinion of the Court: "It is very clear, there-assignment. fore, that the Orphans' Court in a proceeding to distribute an estate among legatees, next of kin, and heirs, has ample power to inquire into and determine all questions standing directly in the way of a distribution to these parties." This was but a repetition of the doctrine previously announced in Whiteside v. Whiteside (8 Harris, 473); Schollenberger's Appeal (9 Harris, 341); Ashford v. Ewing (1 Casey 213); Black v. Black (10 Casey, 354); Kittera's Estate (5 Harris, 416); Bull's Appeal (12 Id. 286). In Dundas's Estate, a residuary legatee, before the value of his share had been ascertained, assigned it to the wife of an executor for a sum much less than it was ascertained to have been worth. He petitioned the Orphans' Court to have the share paid over to him, and the assignment thereof set aside on the ground of fraud. There can be no doubt of the power of the Orphans' Court to decide between the conflicting claims. We need not discuss the question how far an attaching creditor is compelled to go into the Orphans' Court with his case. The defendant in error went into that Court voluntarily and submitted his claim to that tribunal. A decree was made against him, from which he took no appeal. We are of opinion that he is concluded thereby, and that the Court below erred in excluding the record in that proceeding. Judgment reversed and a venire facias de novo awarded. Opinion by PAXSON, J. Common Pleas Law. In deciding that case, this Court said, referring to the petition to vacate the assignment: "These facts give jurisdiction to the Orphans' Court to compel distribution by the executors, and payment of the petitioner's share to him. Had the petition set forth nothing more, the consequence would have been plain. The executors, to protect themselves, would have set forth the assign-C. P. of Bucks Co. ment in their answer, and cited the assignee to defend pro interesse suo. This would have brought from the petitioner a replication of fraud and deceit in procuring the assignment. The paper thus standing in the way of distribution, there being two claimants to the same legacy or share of it, the jurisdiction of the Orphans' Court necessarily attaches in order to remove the barrier to the payment of the legacy. The language of Judge LEWIS in the Kittera Estate directly applies, that each one must be heard in support of his claim, and in opposition to every claimant who interferes with it, and the power to decide all questions essential to distribution follows the power to distribute." In the case in hand, the legacy was claimed by Nov. 1878. Geisinger v. Applebach. Practice-Execution-Exemption-Jury of inquisition, and appraisers of exemption-Respective duties of- When the inquisitions set aside by the Court, the sheriff may summon another jury, and hold a second inquest under the same writ-After an appraisement under the exemption law, the sheriff may not hold a second appraisement, the first not having been set aside by the Court. Sur exceptions to report of second jury of inquest under fi. fa. The plaintiff having recovered a judgment against the defendant, issued a writ of fi. fa. to April term, 1878, under which the defendant's real and personal property was levied on. He necessary the holding of a new inquest to perclaimed the benefit of the exemption law, and form the duty they had omitted. The second appraisers were appointed who set apart to him appraisement, therefore, amounted to nothing, personal property to the amount of $63.62, and and the second jury did right in disregarding it. certified that his real estate could not be divided without injury to or spoiling the whole, and that it was of the value of $900. This real estate consists of a life estate in a messuage and lot of land in Applebachsville. The jury of condemnation, on April 24, 1878, valued the defend ant's interest therein at $150, and refused to condemn it, for the reason, as stated in their report, that he had claimed it under the exemp-J., that where the inquisition has been set aside tion law, and it was not sufficient in value to make up the $300 exemption to which he was entitled. To this finding exceptions were filed by the plaintiff, and, after argument, were sustained by the Court, and the report of the jury of inquest set aside. Thereupon the case was submitted, under the same writ, to another inquest, at September term, 1878. In the meantime appraisers were again summoned by the sheriff, under the defendant's claim to exemption-not all of them the same persons who had served before and another appraisement was made, the personal property amounting to $69.23, and the defendant's interest in the real estate levied on, valued at $125. The second jury of inquisition under the fi. fa., found that the premises were not of sufficient value to satisfy the debt, etc., within seven years, and appraised the defendant's interest therein at $315. To this finding the defendant excepted on the grounds, inter alia, (1) that the premises levied on had been set apart to the defendant before condemnation under his claim to exemption. (2) That the sheriff's power under the fi. fa. was exhausted at the April term, and he could not proceed to hold a second inquisition under the same writ at September term. Geo. Ross and L. L. James, for the except ant. Alfred Fackenthall, contra. C. A. V. Dec. 2, 1878. THE COURT. (After stating the facts, ut supra). As to the first ground of exception. We are unable to see that the sheriff had any authority to summon new appraisers, and have a second appraisement made. The appraisement had been completed by the men first summoned; they had performed their work, and the result had been returned to the Court. If their proceedings were irregular or productive of injustice, if they had made a mistake, exceptions should have been filed, and the error corrected. Until this was done their appraisement must stand. The jury of condemnation had nothing to do with the exemption; the effect of setting aside their report was only to render As to the second ground of exception. In 1788 it was decided by the Common Pleas of Philadelphia that when an inquisition under a fi. fa. has been quashed for an irregularity, the sheriff may proceed to hold a new inquest after the return of the fi. fa. without a new writ. (Weaver v. Lawrence, 1 Dal. 167.) In Miller v. Milford (2 S. & R. 35) it is said by YEATES, it is competent for the sheriff to hold a new inquisition without a new writ; that the issuing of an alias writ would be irregular, and it would be set aside on motion, as subjecting the defendant to unnecessary costs. The exceptions are dismissed, and the report of the inquest is approved. Opinion by WATSON, P. J. The plaintiff having a demand against the trust estate known as the Fisher Land Trust, the parties by an agreement in writing referred the matter to a referee, with a stipulation that the award of the said referee should be final and conclusive on the parties, without appeal. The referee having awarded the plaintiff the sum of $4129.58 as damages, with costs of suit, he brought this action of debt, and filed a copy of the award. The affidavit of defence set forth that there was no personal liability on the part of the defendants found by the award, but the sum found must be recovered from the trust estate; and that the plaintiff was not entitled to judgment for want of an affidavit of defence. Staake, for the rule, cited and relied on- Clay, contra. An award like the present, made neither under a rule of Court, nor an Act of Assembly, nor in an action pending in Court, and containing no covenant by either party to pay the amount found by the referee, is not such an instrument as will Kingston, for the rule. L. R. Fletcher, contra, cited C. A. V. March 8, 1879. THE COURT. The submission The proper writ in this case was retorno hato the referee in this case was for the purpose of bendo, or else he might have proceeded under finding, as a matter of fact, the amount of the the Act of 21 March, 1772, § 10 (Purd. Dig. indebtedness of the defendants to the plaintiff. 1265). The statute of 17 Car. II. c. 7, is not in While, perhaps, his award under the submission force in Pennsylvania; but even if it is, it is is conclusive upon them in that particular, yet doubtful whether this fi. fa. issued under it. The the question raised here is, whether it constitutes statute is not reported as in force in Roberts's an instrument of writing for the payment of Digest. None of the cases cited in Morris on money, upon which judgment can be taken for Replevin arose under the execution. want of an affidavit of defence. The instrument Quinn v. Wallace, 6 Whar. 458. of writing to effect this object must not only show Tidd's Practice, 1038. a liability, but also a direct promise to pay it. In the case of the Fidelity Co. v. Miller, decided a few days since in the Supreme Court (ante, 553), the Court held that a mortgage which recited in C. A. V. the usual way an indebtedness, was not an instruMarch 8, 1879. THE COURT. The above case ment of writing for the payment of money, thus was replevin for goods levied on as a distress for affirming the early decision of Scott v. Fields (7 rent. There was a verdict for defendant, finding W. 360), that, without an express covenant to the amount of rent in arrear and the value of the pay, no action could be maintained on a mort- goods distrained. On this verdict judgment was entered for defendant, and a fi. fa. issued for the amount of rent in arrear. The plaintiff moves to set aside the fi. fa., on the ground that the judgment should have been retorno habendo, and the defendant should have proceeded on the bond, and that the statute of 17 Charles II. c. 7, is not in force in Pennsylvania, on which statute only the rent in arrear and the value of the goods can be found, and a fi. fa. issued. This, to some extent, has been a vexed question in Pennsylvania. gage. We think this an analogous case, and therefore discharge the rule. Rule discharged. Oral opinion by BIDDLE, J. C. P. No. I. Dec. 17, 1878. Rosenthal v. Lehman et al. Landlord and tenant-Distress-Replevin-Proper writ of execution where the verdict and judgment are for the defendant-Whether the statute of 17 Car. II. c. 7, is in force in Pennsylvania or not, its provisions are recognized as part of the common law of the State. "In case the plaintiff shall be non-suit after cognizance or avowry made and issue joined, or if the verdict shall be given against the plaintiff then the jurors that are empanelled to inquire of such issue, shall at the prayer of defendant inquire concerning the sum in arrear, and the value of the goods or cattle distrained. And thereupon the avowant, or he that maketh cognizance shall have judgment to recover against the plaintiff the arrearages of rent, in case the goods or cattle distrained shall amount unto that value, and in case they shall not amount to that value then so much as the value of the goods or cattle dis A note to this statute, in Roberts's Digest, says that "in the case of Williams v. Smith and others (10 S. & R. 205), Chief Justice DUNCAN treats the Act of 1772 as if it were a transcript of 17 C. II. c. 7. But our act contains no such provisions. There can be but little doubt but that it is in force, though not included in the report of the judges in Roberts's Digest." Mr. Morris, in his work on Replevin, page in Quinn v. Wallace (6 Wharton, 458) that this 221, says: "We are told by KENNEDY, Justice, statute has never been in force in Pennsylvania, either by adoption or otherwise. The dicta of GIBSON, C. J., in Kimmel v. Kint (2 Watts, 431), and of DUNCAN, J., in Williams v. Smith (10 S. & R. 206), would seem to imply the contrary. The statute has not been reported by the judges. Ever since the decision in Albright v. Pickle (4 Yeates, 264), however, the jury has been allowed, in an issue of no rent in arrear, to find the amount of rent in arrear, and also to value the goods. This is the prevailing practice in the city and county of Philadelphia. Whether |
