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Bradley v. Dusenberry. Affidavit of defence law-Striking off judgment Book entries-Judgment against a firm when the copy filed charged one of them individuallyCopy filed charging a partner individually, followed by an alias summons to bring in the other partner-Practice.

Rule to strike off judgment.

Assumpsit for goods sold and delivered.

On May 6, 1878, a copy of the plaintiff's book of original entries was filed, in which it appeared the goods were charged to the defendant, Dusenberry, individually. An affidavit of defence was filed by Dusenberry, setting forth that the goods had been bought by the firm of Dusenberry & Murphey. At the argument of a rule for judgment, the plaintiff amended the record, by leave of Court, by adding the name of Murphey.

The Court made the rule for judgment absolute, upon which a writ of error was taken, and the Supreme Court reversed the judgment of the Court below, and awarded a procedendo. On Feb. 28, 1879, an alias summons was issued by plaintiff's counsel against Murphey, and on the copy of plaintiff's book entries as originally filed in May, 1878 (supra), the Court gave judgment for want of an affidavit of defence. A. S. L. Shields, for the rule.

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Sargent v. Bedford. Practice-Setting aside sheriff's sale-Lumping sale of several properties-Irredeemable ground rent and mortgage covering the whole. Rule to show cause why sheriff's sale should not be set aside.

Sci. fa. sur mortgage. The property sold in this case consisted of one house on Hamilton Street, three on Biddle Street, and seven on Quarry Court, and had been mortgaged as one property. It was subject as a whole to an irredeemable ground rent of $250. It was sold in a lump by the sheriff, and bought in for $4000. This rule was taken by the defendant, and his deposition in support of the rule averred that no notice had been given him of the sale. The deposition of an expert-a real estate agent-on behalf of plaintiff, averred that the price for which the property sold was a fair market price. D. C. Harrington, for the rule.

No notice was given to the defendant of the sale, as required by the Act of 1705. Purd. Dig. 484, note a.

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Moelling, Administrator etc., v. Lehigh Coal and Navigation Co.

Evidence-Secondary evidence-Burden of proof -Plaintiff by putting in evidence what purports to be a copy of a power of attorney, authorizing defendants to transfer the stock of plaintiff, admits it to be a true copy of a genuine power. Rule to take off a non-suit.

The narr. contained two counts: (1) That defendants, without plaintiff's authority, cancelled a certificate, No. 410, of loan, of $9000, of plaintiff, and transferred the loan away from plaintiff. (2) Trover and conversion by defendants of said certificate.

Plaintiff obtained an order under the Act of 27 Feb. 1798 (Purd. Dig. 621, pl. 1), on defendants to produce their papers, and at the trial upon call the defendants produced the certificate of loan, cancelled and marked transferred, and also a copy of a power of attorney from plaintiff's intestate to Charles Vezin, giving him a general power to transfer stocks and loans. The latter was certified by a notary public of Pennsylvania to be a true and correct copy of the original, sealed, signed, and acknowledged before a United States consul at Bremen. Plaintiff put said certificate in evidence, and called the treasurer of the company, who testified that when the transfer was made the company had not, to the best of his knowledge, any other authority than the copy of the power so produced.

Plaintiff then gave the copy in evidence, and closed his case. The Court held that by putting the copy in evidence, the plaintiff thereby admitted it to be a true copy of a genuine power, and ordered a non-suit.

The ruling and order of the Court were assigned as the reasons for taking off the non-suit.

R. C. McMurtrie and Chas. Gibbons showed


We can come to no other conclusion than that plaintiff's counsel knew that the victory in this case

This is simply a question of primary and sec-depended not upon the merits, but upon a sucondary evidence, and plaintiff having put in evidence the copy of the power of attorney cannot now deny the existence of the original, nor require proof of the very document that has been read to the jury without objection.

John Samuel and Gustavus Remak, for the rule.

This is not a question of primary and secondary evidence, but of onus probandi, and having put the copy in evidence simply by way of anticipation to prove the invalidity of opponent's title, the plaintiff is not bound by it. An invalid instrument may be given in evidence for the purpose of showing its invalidity.

Smart v. Nokes, 6 Mann. & Granger, 911.
Doe et al. v. Bluck, 3 Campbell, *450.

C. A. V.

March 29, 1879. THE COURT. The plaintiff in this case saw fit at the trial of this cause to call upon the defendants for the production, among other things, of "an alleged power of attorney from Gildemeister to Charles Vezin,

purporting to be certified to as a correct copy by E. H. Bailey, notary public, on the 27th of November, 1870." In answer to this call the defendants produced the copy signed by Gildemeister; annexed to it was a consular and notarial certificate. Had the defendants offered this testimony, the plaintiff would have objected to it as being imperfect and legally defective. What was the effect of its production by the defendants on the call of the plaintiff, and its introduction into the evidence by him? In our judgment the copy then became secondary evidence of the power of attorney, under which the transfer of the loan had been made. As a power of attorney the paper was perfect. It was signed by Gildemeister, at the end thereof, and it was presumptive evidence that a valid instrument, of which

it was a copy, existed. Moreover, under Withers v. Gillespy (7 S. & R. 12), the papers produced became evidence for both sides, after having been read to the jury by the plaintiff.

In Summers v. McKim (12 S. & R. 411), the same principle is adopted, although the case turned upon another point. The only witness examined merely testified that he did not know that any other instrument of writing existed upon which the transfer was permitted. It was a surprise to the Court when this evidence alone was produced, and the case closed, and as, if we are right, it would seem to be unjust, because of the oversight of counsel, to permit this non-suit to stand upon the record, we would be ready to remove it, but for the fact that at the trial the plaintiff was warned to produce other evidence, intended to prove that the signature was a forgery, which was not even attempted.

cessful effort to throw the burden of proof upon the other side. In such a contest as this the defendants demand their legal rights; years have elapsed, death has intervened, the parties stand at arms' length, and we think it would be unjust not to determine this cause upon the evidence as produced by the plaintiff himself. Rule discharged.

Opinion by LUDLOW, P. J.

Orphans' Court.

March 18, 1879.

Williamson's Estate.

Claims for board upon implied contract-Evidence necessary to support-Claim by husband and wife in right of wife-Declarations by wifeSubstitution of husband's name as claimant, instead of wife, not allowed, where the wife, although not a feme sole trader, has an interest separate from the husband.

Sur exceptions to adjudication.

dent's administrator, Edward Manley, the followFrom the adjudication of the account of deceing facts appeared: George R. Williamson, the decedent, died intestate. He was a widower, ministration were taken out more than a year Letters of adand left two minor daughters. afterwards by the accountant. There was little or no personalty, and the balance in the accountant's hands arose from the sale of real estate, 905 Cherry Street, where the decedent and his daughters had lived with one Ryan, who was decedent's ters had lived with one Ryan, who was decedent's

tenant, and took boarders.

his wife, in right of the wife, claimed payment Before the auditing Judge the said Ryan and for board of the decedent and his family, for four years at $20 a week, but gave credit for rent of dence was offered in support of this claim by Mrs. the premises at the rate of $600 a year. Evithe best rooms by decedent and his daughters, Ryan in her own right, as to the occupation of her good treatment of them and kind offices performed. One Louisa Dutton testified as to declarations of Mrs. Ryan to her that her charge against decedent for board was $10 per week.

On the other side, it was urged that although the children were treated with kindness, they did not occupy the position of other boarders, for

No presumption should arise against this claim, as there was no relationship.

H. M. Dechert, contra.

March 29, 1879. THE COURT. The exceptions filed all relate to the disallowance by the auditing Judge of a claim for boarding the decedent, and two minor daughters, from August 1, 1870, to December 12, 1874, at the rate of twenty dollars a week, and which, if allowed, would absorb the entire balance of the estate. As may readily be observed, the claim was of such a char

its genuineness, and fully justified the most searching scrutiny; for the protection of the orphan children of the decedent demanded that it should be sustained only by competent and satisfactory evidence.

they took care of their own rooms, and the younger performed occasionally menial services. That the decedent never was asked to pay anything, although the other boarders paid regularly. A motion was made on the part of Ryan at the close of all the testimony to strike out the name of Mrs. Ryan, and to allow that of her husband to stand as sole claimant, and consequently that the testimony of Mrs. Dutton should be stricken out as irrelevant, as to statements made by Mrs. Ryan not in the presence of her husband. The auditing Judge held as follows: "No ap-acter as naturally gave rise to grave suspicion of plication has been made on the theory that apart from the acts relating to feme sole traders the earnings of the wife were the exclusive property of the husband. As a general proposition this is true, but it is well settled that when the wife carries on a business with property of her own, its The decedent was a widower, and died Decemprofits, though in part due to her own services, ber 12, 1874, intestate, leaving two minor daughare even as against her hushand's creditors, and ters. He was the owner of the dwelling-house a fortiori as against him, her own. (Weman v. No. 905 Cherry Street, in this city, in which he Anderman, 6 Wright, 311; Silveus v. Porter, 24 resided, retaining two rooms for the use of himself Smith, 488; Seeds v. Kahlee, 26 Smith, 262.) and children, while the remaining apartments The claim was presented as one due to Mrs. Ryan, were occupied by claimant and his wife, for the which implied an assertion assented to and par- purposes of a boarding house. Here the decedent ticipated in by the husband, that the facts were lived until his death, during a period of over four such as to entitle her to make it, viz., that the years. There was no evidence of any contract property out of which it arose was hers, in other between the claimant and the decedent, either words, that she was the owner of the term. for the payment of board, or of rent for the preIn the absence of proof of mistake in this respect, mises. Nor was there any evidence that the parand none such was offered, it may well be doubted ties ever made any demand upon each other for whether this amendment should be permitted, compensation or for rent, or that any money but treating it as made, and the evidence of Mrs. was ever paid by one to the other in settlement Ryan and Louisa Dutton ruled out, the claim for of any indebtedness. They lived upon the most rent must be rejected, as all the circumstances of friendly relations, and the wife of the claimant the case give rise to the opinion, that there is a treated the children with motherly kindness, strong presumption of an agreement, and under- while they in return assisted her in the care of the standing of the parties, that the rent of the house, household, took charge of their own rooms, and and the services of the children, should be ac-performed many not laborious but useful domestic cepted as full compensation for board; such duties. Sufficient evidence appeared to show arrangements being quite common, and present- that the decedent with his family did not occupy, ing advantages to both landlord and tenant." the position of ordinary boarders, who were re-To this finding exceptions were filed in behalf quired to pay weekly and sometimes in advance.. of Isaac Ryan (1) because the learned Judge He was a skilful mechanic, working industriouslyerred in not allowing amendment as to name of until his health failed, and earning twenty-five: claimant, (2) and in finding that there was a pre-dollars as weekly wages. The auditing Judge, in sumption against the claim of Isaac Ryan. view of the evidence presented, reached the con-clusion that the decedent permitted the claimant

E. C. Shapley, for the exceptions.

The amendment as to striking out the name of to occupy the greater portion of his dwelling, and the claimant should have been allowed.

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Snyder v. Snyder, 6 Binn. 488.

Steele v. Thompson, 3 P. & W. 34.

Peck v. Ward, 6 H. 508.

Hannay v. Stewart, 6 W. 489.

The testimony of Louisa Dutton, as to declara-
tions of Mrs. Ryan, should have been ruled out.
Devling v. Williamson, 9 Watts, 311.
Armstrong v. Graham, 4 Barr, 144.
The Dictator v. Heath, 6 Sm. 290.
Railroad Co. v. Butler, 7 Sm. 335.
Coal Co. v. Decker, 1 Norris, 119.

VOL. VI.-37

take boarders therein free of all rent in consideration of furnishing boarding to himself and children, and it was the understanding and agreement of the parties that one was to be the equivalent of the other. The claim was therefore rejected.

As originally presented, the claim was in the name of the claimant and his wife in her right, but, after the testimony had closed, from which it was proved that the wife had made declarations as to the rate of board she was charging

On the 9th of October a bill of exceptions was signed, and this was appended to the authenticated transcript of the record.

decedent, and that being one-half of the rate | Sewing Machine Company, against Jones et al., for which the claim had been made, then the to June Term, 1873. The case was tried before counsel for the claimant asked leave to amend a jury in June, 1875, and on the 26th of June a the record by striking out the name of the wife, verdict rendered for the plaintiff for $5775.20. leaving her husband as sole claimant, and also Judgment was entered upon the verdict July 1, requested the auditing Judge to disregard the 1875. On the 16th of July, 1875, a writ of error testimony as to the declarations referred to. Al- was issued. The sureties were approved and the though it does not appear upon the record that citation was served on the same day. An authe amendment was formally made by the audit-thenticated transcript of the record was made ing Judge or the testimony stricken out, yet it October 7, 1875, and annexed to and returned does appear that the amendment was in effect with the writ of error. made, and the testimony disregarded, and that the claim was determined upon its merits, irrespective of the declarations of the wife, which would not be admissible as against the claim of the husband, unless made as his agent, and as if THE COURT. In Müller v. Ehlers (91 U. S. R. he stood alone as the party claimant. The va- 249), after reviewing the earlier cases, we decided lidity of the claim was purely a question of fact, that, save under very extraordinary circumstances, and dependent wholly upon the evidence pre-a bill of exceptions, signed after the term at which sented. We therefore can but apply the rule set- the judgment was rendered without the consent tled by numerous decisions, and unless clear of parties, or an express order of the Court to error be made to appear in the findings of fact by that effect during the term, could not be considthe auditing Judge his conclusions are to be sus-ered part of the record in a cause. This rule tained. After a careful consideration of the tes-excludes from this record the bill of exceptions timony we think the claim was properly rejected, signed October 9, 1875. The judgment was and therefore dismiss the exceptions. Opinion by HANNA, P. J.

Supreme Court of the
United States.

Oct. 1877, 231.

Jones et al. v. The Grover & Baker
Sewing Machine Company.*

Bill of exceptions in U. S. Courts-Time within
which such bill must be signed.

A bill of exceptions signed after the term at which the judgment was rendered (save under very extraordinary circumstances), without the consent of the parties, or an express order of the Court to that effect made during the term, will not be considered part of the record in the Supreme Court of the United States on writ of error.

rendered at the June term of that year, the writ of error sued out July 16, and the citation served the same day. The authentication of the transcript of the record annexed to and returned with the writ, as required by sec. 997 Rev. Stat., bears date October 7, 1875, and the Bill of Exceptions, signed as it was after that time, is simply appended to what was thus authenticated. There is nothing to show that it was ever filed in the office of the clerk of the Court. Certainly such a paper cannot be considered here.

The note of exception which does appear in the record, and upon which the only error insisted upon in the argument is assigned, contains neither a copy of the rejected agreement nor any statement of its contents. We can only reverse a judgment for error actually appearing. Every presumption is in favor of the correctness of the ruling below, and until we know from the record what the paper offered in evidence was, we cannot say that the Court improperly excluded it. Judgment affirmed.

Opinion by WAITE, C. J.

[In Müller v. Ehlers, cited in the above opinion, it was said that "the power to reduce exceptions taken at the trial to form, and to have them signed and filed, was, under ordinary circumstances, confined to a time not later than the term at which the judgment was rendered. This is the true rule, and one to which there should be no exceptions without an express order of the Court during the term, or consent of the parties, save under very extraordi nary circumstances." See the decisions cited in that case. This was an action of debt brought in the The bill must therefore be filed, as well as signed, at the United States Circuit Court for the Western Dis-term of judgment, otherwise it forms no part of the record, trict of Pennsylvania, by the Grover & Baker in the absence of consent, or of a special order for extension of time made during the judgment term.]

Error to the Circuit Court of the United States for the Western District of Pennsylvania.

*Not reported in Otto's Reports.

§ 4, Purd. Dig. 499), for an interpleader between

U.S. Circuit Court-Healy, the plaintiff, and one Grayson M. Prevost;


Healy v. Prevost.

who, the petition averred, had, before the action of assumpsit was brought, begun a suit in equity against the Jefferson Oil Company in the Circuit Court of the United States for the Eastern District of Pennsylvania, in respect to the sum of $1375.90, forming the first item of alleged indebtedness in April 2, 1879. this action of assumpsit; and who, the petition alleged, was about to bring an action against them, the Jefferson Oil Company, in respect to the other item of $215.45; the said Prevost claiming to be the owner of both of these sums. The petition further alleged that in respect to the sum of $1375.90 an order of Court had been made in the

Removal of causes-Amount in controversy, how determined Act of Congress of March 3, 1875-Interpleader Act of Assembly of March 11, 1836, § 4 (P. L. 78)—Parties-Controversy between citizens of different States aris-equity suit in the C. C. U. S. ordering the Jeffering by change in parties to suit.

Where the declaration consists of the common counts only, the amount in controversy, to give jurisdiction to the United States Circuit Court, is the amount claimed in the bill of particulars.

The party substituted on the record under the Act of

son Oil Company to pay that sum into the registry of that Court, which the petition alleged had been done, leaving in the petitioner's hands at the date of the petition only the sum of $215.45 out of the original sum of $1591.35 claimed by Healy in the common law action. The petition

Assembly of March 11, 1836, 8 4, regulating interplead-concluded by praying that the Jefferson Oil Coming, is, after such substitution, a party within the meaning of the Act of Congress of March 3, 1875 (Removal of Causes), and if, after such substitution, the right of removal exists, the cause may be removed, even though as between the original parties to the suit the United States Court would not have had jurisdiction.

If the parties substituted on the record by involuntary process are entitled to remove the cause to the federal Court, they may do so, though the original parties in the suit were not so entitled.*

Rule to show cause why the suit should not be remanded to the State Court.

The certified copy of the record filed in the United States Circuit Court showed the following facts:

pany should be allowed to withdraw their appearance in the suit in Common Pleas No. 2; that Prevost should be substituted as defendant, that Healy should be ordered to interplead with Prevost, and that the company should be allowed to pay the sum of $215.45, which alone remained in their hands, into Court.

Upon this petition a rule was granted in Common Pleas No. 2 to show cause why the prayers of the petition should not be granted; and notice thereof having been given both to Prevost and to Healy, neither of whom opposed, the rule was made absolute.

Prevost, the substituted defendant, thereupon immediately filed a petition and bond, as required by the Act of Congress, averring that he was a citizen of the State of New Jersey, and that Healy, the plaintiff, was a citizen of the State of Pennsylvania, and that the amount in controversy exceeded $500, etc. The same day Prevost removed the suit into this Court, whereupon the plaintiff took this rule.

This was an action of assumpsit originally brought in the Common Pleas No. 2, of Philadelphia County by Healy against the Jefferson Oil Company of Clarion County, both citizens of Pennsylvania. The declaration consisted of the common counts, the sum of $5000 being named in each count as the plaintiff's damages: but the bill of particulars filed therewith averred that A. Sydney Biddle showed cause. There are the action was brought for $1591.35, which sum two questions in this case: (1) whether the amount was alleged to have been duly collected by the in controversy exceeds $500. The amount in defendants, the Jefferson Oil Company, as the controversy is not merely the sum of $215.45, plaintiff's agent, and wrongfully retained by which at the time of the removal of this suit was them. The bill of particulars further stated, all that remained of the original sum claimed in that this sum consisted of two separate items, the hands of the original defendant, but the sum one of $1375.90, the other of $215.45, each in-named in the bill of particulars. It has frequently debtedness arising out of a wholly different transaction.

Before plea pleaded the original defendants, the Jefferson Oil Company, petitioned the Common Pleas No. 2 (under the Act of 11 March, 1836,

* See note at end of case.

been decided that the amount in controversy, under the clause of the Act of Congress giving jurisdiction to the United States Circuit Court, is the amount claimed by the plaintiff in the declaration, and that this cannot be disputed by the defendant. (See Gordon v. Longest, 16 Peters, 97; Sherman v. Clark, 3 McLean, 91; Post.

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