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C. P. of

of these methods was followed, and hence real estate as the property of John Miller, we conclude ; first, that the admission of and that a creditor whose judgment was the defendant, implied from his claim of entered against John T. Miller had no the exemption, could not conclude, nor standing in the distribution without showalone warrant judgment against the gar- ing that both judgments were in fact ennishee; second, that such judgment was tered against the same party, which would not warranted by the failure of the gar- amount to a parol variation of the record. nishee to state specifically for whom the

Testimony was offered on behalf of defendant was agent, the interrogatories, Buckwalter, under objection by King, to as served upon him, not requiring such show that John T. Miller is the same paranswer ; third, that his verbal statement, ty whose land was sold under the execumade after his answers had been delivered tion from which this fund is produced.to the magistrate, and when not under the auditor found the facts as follows: oath, and which were not in themselves "There are a number of John Millers in irreconcilable with his former answers, the neighborhood of the defendant. For did not authorize the alderman to disre- the purpose of preventing his mail matter gard his former answers, and to enter from falling into the hands of another judgment against him. The judgment is John Miller, he assumed the name of John reversed.

T. Miller. There was no other John T. Chester County

Miller in the neighborhood. Generally, King v. King and Miller.

in signing his name to obligations, he

signed 'John Miller.' In the case of the In the absence of actual notice of a judgment; the defective entry on the records by the introduction of an initial judgment bond of Buckwalter, he signed letter is not recorded notice, and a judgment thus defectively entered will be postponed to a judgment properly

or inserted the 'T' immediately after he entered.

had signed 'John Miller,' and before the B. held a judgment, entered against J. T. M. in 1871; K recovered a judgment against L. M. in 1872, both. in fact, delivery of the bond, because in the body against the same defendant. The defendant's name was J. M. He took his title in this name, and so signed all of the bond it was written ‘John T Miller.' legal papers, excepting the bond to B. edge of B's judgment. In a distribution of the fund pro- His name on the books of several busiduced by the sale of the real estate of J. M., Held, that the judgment of K. is entitled to the proceeds to the ex- ness men in Springville, was John T. Milclusion of that of K.

PER BOTLER, P. 1:–Had K. been aware of the judg- ler, and he appears to have been known in ment by B. he would have been postpoved.

in the village by the latter name. The Exceptions to the report of the auditor property is assessed to John T. Miller.to distribute money in court produced the records show the deed for the propupon a sale under Vend. Ex. No. 64 to erty to be to John Miller. All the variAug. T. 1872, against Jesse King and ous suits upon notes, &c., show his signaJohn Miller.

ture as John Miller, except in the judgThe fund in court for distribution

ment bond to Buckwalter. That bond is amounted to $1,968.82.

After an appro

entered against John T. Miller, of Springpriation of a part of the fund to prior lien ville. The property was sold as the propcreditors, the balance was claimed on the erty of John Miller. following judgments: Wm. Buckwalter The auditor awarded the balance of the v. John T. Miller, of Springville, entered sund to the judgment of Albert T. King. August 14, 1871, for $300; and Albert F. King v. John Miller, by default, obtained Exceptions thereto were filed by BuckJan. 30, 1872, for $205.60, the latter walter. being the judgment through which the

A. P. Reid, for exceptions. sale was made.

On behalf of King, it was contended Testimony is admissible to show who that the fund was produced on a sale of are entitled to the fund, and to identify

a

K. had no knowl

VOL. IV.

No. 14.

YORK LEGAL RECORD.

initial. As the court said he had a perfect

right thus to contract his Christian name;' THURSDAY, JUNE 7, 1883.

and as no one was mislead by his so doMiller as the party against whom the judging, the judgment was well docketed.ment was given :

Much more like the case in hand is Wood Wood v. Reynolds, 7 W. & S. 406.

v. Reynolds, 7 W. & S. 406, where a judgRidgeway, Budd & Co.'s Appeal, 3 Har. 177.

ment was postponed because the defenJones' Estate, 3 Cas. 336. The York Bank's Appeal. 12 Cas. 458.

dant's name was changed by the omission

of the middle letter. Wm: B. Waddell, contra

For these reasons the exceptions are Creditors are entitled to rely on the re- dismissed, and the distribution reported cord, and parol evidence cannot be intro- by the auditor, confirmed. duced to make such an amendment of the record as would prejudice a creditor who

SUPREME COURT. has relied thereon. A judgment entered against John T. Miller is no notice to the creditor of John Miller :

Sprenkle's Appeal, No. 2. Zimmerman v. Briggaus. 5 Watts 186.

Administrators---Joint Account-Joint Crutcher v. Com., 6 Wh. 340.

Liability. July 3, 1873. BUTLER, P. J.--The

G. S. and S. G. jointly administered upon the estate of J. name of the defendant was John Miller.

G., and under proceedings in partition sold the real estate

upon which a charge had been created, which operated as He took the title to his real estate in this

a lien in the title, and which could not be discharged by an Orphan's Court sale. The purchasers, however, paid the

amount charged upon the land to the administrators who name, and so signed himself to all legal

filed a joint account, in which they took credit for the sum

of money so received and for the unexpended interest on papers, saving the bond to Mr. Buckwalt

the lien, due from the intestate. The interest passed into er. To avoid miscarriage of his mail mat

the hands of G. S., the principal into the hand of S. G..

C. S. for whose benefit the charge had been created, was ter he added a “T” to his name, and was

living at that time, and continued to live until 1861, five years after the filing of the account. In 1857, G. S. died,

S. G. continued to administer the estate, and was the cusknown generally in his neighborhood as todian of the principal sum received by him. He subseJohn T. Miller. He had no authority to

quently became insolvent, and died, without having paid

over said principal to the heirs of C. S., who were entitled make this addition, and it did not change

to it upon her death. When the account of the adminis

trators d.b.n.c.t.a, of G. S. was filed, and before the Audihis name.

tor appointed to distribute the balance thereon, the prinHad Mr. King been aware of cipal sum was claimed by the heirs aforesaid. the judgment held by Mr. Buckwalter, he

(affirming the Court below) That the estate of G. S. was

liable for the said amount retained by S. G. would have been postponed. But at the A second appeal by three of the parties in interest, after

the failure of the first, is practically a motion for a reimportant moment when called upon to

argument. act with a view to save himself, he knew

Appeal from the Decree of the Orpnothing of it. He was guided by the re

hans' Court of York County; and Mocord, and it did not exhibit this judgment. tion for re-argument. He had no knowledge even of Mr. Miller's The facts in this case are given in use of a middle letter ; but had he known Sprenkle's Appeal, 3 YORK LEGAL REall the circumstances connected with this, CORD 67. The grounds for the re-arguit would not have put him on his guard ; ment were that owing to the illness of one because, as we have seen, Mr. Miller ex- of the counsel the paper book was hurcluded the letter in the execution of legal riedly prepared, and the case not clearly papers. He added it to Mr. Buckwalter's stated ; that some of the parties in interest bond after signing, simply because the had been unable to join in the first appeal scrivener had so designed it.

and that the decision of the Supreme Jones' Estate, 3 Cas. 336, relied upon by Court in another case (and which was unthe exceptor, bears very little resemblance published at the time of preparing the first to this case. There the name was not

paper book) ruled this case. changed ; it was the defendant's proper James Kell and Wm. Hay for Appelname, the first part of it expressed by the lant.

as

HELD,

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In addition to the authorities cited in Decree affirmed and appeal dismissed the first paper book the following were at the costs of the appellants. referred to; The filing of a joint account is an ad

Wagner v. Kline. mission of joint liability, but it by no

Affidavit of defencePromissory note. means follows that such liability is a con

An affidavit of defence alleged that the promissory note tinuing obligation :

on which suit was brought had been obiained from the

defendant under misrepresentation, and that the considYoung's Appeal, 39 Legal Intellingencer 238.

eration had failed; that the plaintiff was present in a con

versation between defendant's attorney and the holder of Where an administrator dies before the

the note, when the attorney said to the holder that the

note was a fraud and would not be paid ; and that the act of misappropriation by his co-adminis- original payee of the note was a person engaged in dis

honest practices, and whose character should have been trator, his estate will not be held liable: sufficient to put the plaintiff on his guard. HELD, to be

sufficient to send the case to the jury. Williams on Exec. 1160. Perry on Trusts 421.

Error to the court of Common Pleas of Nor will he be held any further than he York County. is shown to have participated in the act

The action in the Court below was on of misappropriation:

a promissory note which matured on the McNair's Appeal, 4 Rawle 157. Sterret's Appeal, 2 Penna. R. 419.

22nd of April, 1882. On the 13th of

. The Orphan's Court could not discharge April, 1882, the plaintiff in error purthe lien of the fund charged on the land : chased said note from Granville Hartman, Dewalts's Appeal, 8 Harris 239.

paying him therefor the sum of $495.The appellees were guilty of laches : The note being unpaid at maturity was Hassler v. Bitting, 4 Wright 68.

duly protested for non-payment, and reCalhan's Appeal, 3 Wright 325.

maining unpaid after protest, this action E. W. Spangler and V. K. Keesey for

was instituted for the recovery of the appellees.

money. The note was for $500, payable Young's Appeal had been decided but with interest six months after date. The four weeks before the first argument of plaintiff filed his declaration in the action, this case. It is fair to presume that the together with a copy of note and protest Supreme Court had not forgotten the The defendant, within the time prescribed principle there decided.

by law, filed his affidavit of defence.The appellees claim as creditors, not as The plaintiff entered a rule for judgment legatees, and there are many cases where for want of a sufficient affidavit of defence accountants would be discharged as and the Court below, after argument, filed against the latter, though not as against its opinion refusing to enter judgment in the former :

favor of the plaiutiff. The opinion of the McNair's Appeal, 4 Rawle 148.

Court below was filed on the 16th of Appellees then repeat the authorities October, 1882, (see 3 YORK LEGAL REgiven on the first argument.

CORD 150,) and to the decision of the Court May 23, 1883. PER CURIAM.—The therein expressed, the plaintiff excepted. alleged errors in this decree were fully Blackford and Stewart for plaintiff in argued, and the correctness of the error. decree affirmed when the case was here Nothing, says this Court, but clear evilast year.

That appeal was by two of dence of knowledge or notice, fraud or the heirs. This appeal is by the re- mala fides, can impeach the prima facie maining three. It is

therefore now

title of a holder of negotiable paper taken practically a re-argument. A review before maturity; of the opinion of the learned judge, on Morehead v. Gilmore, 27 Smi. 118-24.

Phelan v. Moses, 17 Smi. 59. which we then affirmed the decree, has Battles v. Laudenslager, 3 Norris 446. failed to detect any error therein sufficient Nor is the rule less stringent although to induce us to change our conclusion. the holder may have taken the note under

)

circumstances which ought to excite the

Thompson v. Ward. suspicions of a prudent man:

A devise to testator's son and son's wife for life, with

"remainder in fee simple to his heirs at law in case he Phelan v. Moss, supra.

should have issue, but in case he should die without issue,

then the said tract of land to revert to the heirs at law of Heist et al. v. Hart 23 Smi. 286.

my three daughters, A, B and c, in fee simple," gives only

joint life estate to the son and his wife. The failure of This Court has also said, that when

issue meant is not an indefinite failure of issue, and the

rule in Shelly's Case does not apply. As soon as the son fraud is set up as a defence the affidavit

has a child, the remainder in fee vests in that child, open

ing to let in afterborn children. When once vested in must show in what it consisted :

such children the fee is absolute. Sterling v. The Mercantile, &c., Insurance Company,

Error to Court of Common Pleas of 8 Casey 75 Matthews v. Long, 3 W. N. C. 512.

Washington county. A general allegation of fraud is insuf

Case stated in the court below by Ward

et ux. against Thompson et al. in coveficient :

nant, on contract to purchase realty. Matthews v. Long, supra.

The premises in question were devised Stett v. Garrett, 3 Whar. 281.

to Ward et ux. by the will of D. Ward, viz: An affidavit of defence which fails to

"Item.-I give devise and bequeath to set forth such a state of facts as warrants my son, Henry Ward, and his wife, that the legal inference of a full defence to the portion of the farm known as the Mowl plaintiff's cause of action is insufficient to farm, which lies, &c., &c., to have and to

hold the same during the term of their prevent judgment for the plaintiff:

natural lives: remainder in fee simple to his Bryau v. Harrison. I Wr. 233.

heirs at law in case he should have issue, Blackburn v. Ormsby, 5 Wr. 97.

butin case heshould die without issue, then Anspach v. Bast, 2 Smi. 356. Bright v. Hewitt, 2 W. N. C. 626.

the said tract of land to revert to the heirs Nothing should be left for inference:

at law of my three daughters, Catharine,

Susannah and Virginia, in fee simple." Peck et al. v. Joues, 20 Smi. 83. Dewey v. Dupay, 2 W. & S. 553.

Thompson et al. contracted to purchase Marsh v. Marshall, 2 Smi. 396.

the same, and the question below was, In the case before this Court, the affi- whether, under this limitation, the plaindavit of defence we submit, discloses no The court below held that they could, and

tiffs could convey a title in fee simple.— such state of facts as would warrant the entered judgment for the plaintiffs for the Court below in submitting the case to a purchase money. jury:

December 30th, 1882. SHARSWOOD, Heist et al. v. Hart, 23 Smi. supra.

C. J. It is undoubtedly one of the best Reeser v. Wambaugh, 2 W. N. C. 145.

settled rules of construction that when Lingg & Bro. v. Blummer, 7 Norris 518.

land is devised to a man for life with reH. H. McClune for defendant in error. mainder over on his death without issue, A mere general notice that there was

such dying without issue means an inde

finite failure of issue unless there is somesome defence, and that the note would thing in the will which shows the intennot be paid was enough to put Wagner tion to have been a definite failure as at on inquiry :

the death of the life tenant. In case of an Hiest v. Hart, 23 Smith, 286.

indefinite failure the rule in Shelly's Case Filed May 25, 1883. PER CURIAM.

enlarged the estate for life to an estate

tail. But we do not think that this rule We think the facts averred in the affida- has any application to the case before us. vit, if unexplained, sufficient to send the It falls within the principle of Luddington case to the jury. This justifies the Court v. Kene, Raym. 203, and the train of dein refusing judgment for want of a suffi- cisions which follow in the wake of that cient affidavit of defence. The jury is the seized in fee of the manor to Evers Armyn

case. There Sir Michael Armyn, being proper tribunal to pass on the alleged for life without impeachment of waste ; facts.

and in case at he should have any issue Writ of error dismissed at the costs of male, then to such issue maleand his heirs, the plaintiff, without prejudice to his right then to Sir Thomas Barnardistor and his

and if he should die without issue male, to trial by jury, and a second writ of er- heirs forever. It was held that Evers ror after final judgment.

Armyn took only an estate of life. Now,

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the language of Daniel Ward's will means phia, living with the woman with whom that Henry Ward and his wife should have the alleged adultery had been committed. a joint estate during their natural life ; re- An agreement was then made between mainder to his children in fee if he should them that, in consideration of a sum of have any; but if he should die without money to be paid to her, she should conissue, then remainder in fee to his three sent to a divorce.

In pursuance of this daughters. As soon as Henry should arrangement, the money was paid and a have a child, the remainder in fee would libel filed by the husband, praying for a vest in that child, subject to open and let divorce on the ground of desertion. In in other children, if any should afterwards the course of the depositions the husband be born, such fee would be absolute. After swore that his wife had deserted him a limitation in fee once vests, no limitation seven years before, to the great astonishover can take effect. Theremainder to the ment of the wife, who had understood daughters would fall to the ground, and if that every thing was to be done by conat any time afterwards the issue of Henry sent, and no charge made against her. should fail, the daughters or their heirs She, however, made no attempt to rebut could only take by descent from the chil- , this testimony. A decree of divorce a dren of Henry, and not by purchase, un- vinculo matrimonii was, entered in due der the remainder limited in the will.

1

course, and she soon after departed for It is the case of a devise in fee, with a | England. In 1883 she came back, and proviso that if that fee fails to vest, another on an affidavit embodying the above facts, estate in fee shall be substituted for it : obtained this rule. It appeared that after McCullough v. Fenton, 15 P.F.Smith 418. the divorce, the husband had married the

woman who had come over with him, COMMON PLEAS.

and had had by her three children. The

marriage took place in New York. Philadelphia

June 5, 1883. HARE, P.J. There is no Firmin v. Firmin.

question that this decree would have been A decree of divorce obtained by fraud and collusion will vacated if application had been made always be vacated if brought to the notice of the court promptly, and before the rights of others have intervened; promptly.

promptly. The divorce was clearly colbut when many years have been allowed to elapse, during which a second inarriage had been contracted by the

lusive—a thing which public policy forguilty party, and children have been born to him who bids, and the decision of Lord Penzance would be bastardized by the annulling of the divorce, it will not be disturbed, unless the record shows that there

is conclusive upon this court upon the

question of the husband's adultery. But Rule to show cause why decree of di- | there is another public policy which forvorce should not be vacated and libel bids that this decree should be opened dismissed.

after so long a delay, and children have This rule was taken by the wife, who been born subsequently to the divorce, was the respondent, to obtain the vaca- who have some rights, and who, indeed, tion of a decree of divorce a .v.m. entered might not have been born if there had in 1871. The facts stated below are her been no divorce. own version of her case; they are par- If this divorce was actually void, a diftially disputed by the libelant, but the ferent case would be presented, but the rule was discharged without calling upon record shows that there was a valid cause him to argue.

of action, and hence it can be considered The parties were married in London in only a voidable decree. 1847. In 1866 the wife began proceedings The respondent has had the benefit of in an English court for the purpose of her agreement for nine years, and thereobtaining a separation on the ground of fore cannot claim any favors of this kind adultery; and, on April 22, 1869, after full from the court. As far as her own conhearing, the husband having notice and venience or advantage is concerned, she

1 defending, the prayer of her petition was · has no case. The question then is simply granted. During this suit no attempt | whether public policy demands that this was made by him to show that she had divorce should be vacated. ever deserted him. He soon afterward point it is our opinion that, after such a left England and came to the United lapse of time and the intervening rights States. In 1871, his wife, upon default of children have arisen, the public interest being made in payment of alimony, fol- ' would be best subserved by leaving the lowed him, and found him in Philadel- parties as they are.

was 110 cause of action.

Upon this

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