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testimony that he was active in the ar- Whatever was just and right in the rangement which resulted in the convey- original transaction and whatever was

of the land by the plaintiff then designed in good faith must be mainto the adult and minor children, tained. If there was any unlawful act on and no advantage must be permitted the part of David Lingg, that led to the to ensue to the grantees from this con- execution of the conveyance by the plainveyance without the performance of any tiff to the children, the children must not just obligation which induced the exe- profit by it. Neither on the other hand cution and delivery of that conveyance. must they suffer by it, but the principal The judgment of John F. Kuhn No. 185 parties should be relegated to their origof January T. 1872 was not a lien upon inal position. I would remark further that the life estate of David Lingg, if the fee in a matter of such consequence as this, to the land was in his wife, as she was Joseph F. Lingg, the absent defendant living at the date of that judgment. The should either appear in person or be repAct of 1 April, 1863, 2 Purd. Dig. 1009, resented upon a power of attorney expl. 33, deprived that judgment of any pressly for the purpose intended. We such effect.

have a solemn record of a regular judgThen if the levy of the fi. fa. after the

ment against the three adult children. wife's death created a lien upon the hus

The petitioners have no other parol testi

They band's life estate, it would appear doubt- mony than that of themselves. ful whether the proceedings of sale were

have no other witnesses to testify in their regular and legal, no evidence being to the material statements of the petition,

behalf. The sworn answer is responsive offered of an order of Court for the issuing and

if the latter is to prevail, the answer application for the writ being given to the should be overcome by the testimony of

two witnesses or one witness corroborattenant for life. It may be that it was the life estate that was sold by the Sheriff, Burks' Appeal, 38 Leg. Int. 314.

ed by other circumstances and facts; the sale was void and conferred no title on the purchaser; Kintz v. Long, 30 Penn. v

The petition expressly sets out that the vide last proviso to sect. 4 Act 24 January original judgment to No. 56 Aug. T. 1876, 1849, 1 Purd. Dig. 652, 653, pl. 90.

was taken against the petitioners, as a

purchase money judgment and as part But there was a judgment in favor of payment of the consideration money of Wm. Haeffer v. John Lingg and David the conveyance.

It is said however that Lingg, to No. 80 of November Term 1875 Francina C. Lingg one of the three adult for $676, which was a lien upon the in- defendants was a married woman at the terest of John Lingg in real estate and time of the issuing of the Sci. Fa. and also upon the life estate of David Lingg that her husband was not joined in the assuming that the fee had been in the wife writ, and the disposition of this woman is of the latter. And it may be very reason- offered and read, in which she swears ably conjectured as alleged in the sworn that she was born in 1856, which if true answer of the plaintiff, that the indebted- would also show that she was a minor at ness of John and the father to the plain- the time of the original confession of judgtiff were readjusted in the conveyance by ment in 1876, although it was admitted the plaintiff to the children. In the light before me, upon the hearing at chambers of the testimony to Mr. Woods, it is cer- that she was an adult at that time, the tainly very proper, and needful perhaps, date of the deed from the plaintiff, which as was suggested by the plaintiff's coun- is even date with the confession of judgsel upon the argument, that the testimony ment. This party in cross-examination of David Lingg should be taken. I am swears “I know I was born in 1856, beunwilling to open the original judgment cause it is down in the Bible. I have a v. John Lingg, Joseph, Francina and the recollection of my birth. I always recolguardian, to No. 46 of August Term 1876, lect that, I recollect that I was born on under the testimony presented. Accord- the 28th of Sept. I state that from my ing to the deposition of Mr. Woods, David recollection and that is the only source. Lingg was the party who procured the Of course some of this testimony is simply amicable confession in that case. The act absurd. No Bible record is offered and of David Lingg and the testimony of his there is no corroboration of this defenson John are in conflict.

dant's statement by any other witness.

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got at it."

And there is no allegation in the petition was given the plaintiff. See also Shnyder of her infancy, and consequently no such v. Noble, 9 W. N. C. 183. question was in issue, and the testimony

So in this case, no attempt has been on the subject is therefore irrelevant. It made to charge Francina Wise personally may be that the testimony is true, and if with the judgment, but she cannot be perthe issue is made and proper proof be ad- mitted to retain her interest in the produced, ground will be constituted for perty, and at the same time refuse to pay opening the judgment as to her. Eliza- her share of the consideration money. Of beth Fleming gave better testimony as to

course the judgment can only be levied her age, but speaks also of the record of upon her estate in this land and the exeher birth in the family Bible, and swears cution must be restricted accordingly. that it is at home in her father's house.

If the plaintiff desires to treat Elisabeth David swears “I was born 23rd of Feb

as an adult at the time of issuing of the ruary 1863, I think, no 1862.

I saw my

sci. fa. the judgment thereon can be age in the family Bible, that is the way I

opened as far as she is concerned, and a

pluries sci. fa. be issued against her and Such kind of testimony demands the her husband. As to the minors, it is said production of the primary Evidence. In in Wilhelm v. Folmer, 9 Barr 300, "it is looking over the depositions it also occurs perhaps also true that where a trustee to me, that it would be well to know, if from the nature of it, cannot properly disany further testimony should be taken on

charge his trust, without the exercise of the subject of the time of birth of any of power over the subject intrusted to him the defendants, and the declaration of the the law conceeds to him the necessary father are given in evidence whether such authority and discretion, so far as is esdeclarations were made post litem motem sential to effectuate the object of the or not. 2 Starkie on evidence 606. This trust.” suggests itself, as it may be that David

In the case at bar, the Orphan's Court Lingg the father discerns, that if the rule of Adams county, upon the petitions of in this case were made absolute, and the Elizabeth R. Lingg and David Lingg, adult defendants as well as the guardian, both being over 14 years of age, and on relieved from liability under the judgment the petition of the father as the procheim he as well as John might escape the pay- ami of the other three minors, appoint ment of their former indebtedness to the Jacob H. McMaster guardian for the displaintiff, and his children hold an absolute tinct and express purpose to secure an title to the land, without any equivalent undisputed title to real estate in which for the life estate, to which the children they conceive they had an interest, and in their petition say the land was subject. to take care of their interests in the preA rule will be granted on David Lingg mises. It is quite manifest that the conto show cause why he should not be made fession of judgment by the guardian was a party to this proceeding and to answer, in execution of the object of his appointif the plaintiff desires and moves for such

ment See also Miller v. Ege, 8 Barr 352. a rule. It further suggests itself that If Jacob H. McMaster, the guardian, bewhilst manifest care was exercised in having a guardian appointed for all the be permitted, if he was so disposed, to

comes party to this proceeding, should he minors, it is somewhat remarkable that an effort is now made to show that Fran- defeat the very purpose for which he was

wrest the judgment from Mr. Heaffer or cina was also a minor at the time of the

appointed ? appointment of the guardian for the

And now to wit, June 25, 1883. The others.

stay of execution is continued, with leave In Glass v. Warwick, 4 Wr. 140, a scire to any of the parties to move to the court facias sur mortgage which was given for

to take any further action that may be purchase money of real estate was sustain appropriate, just and necessary, such leave ed against a married woman without her to terminate on the 20th day of August husband being joined with her.

next, and such stay and leave are granted In Patterson v. Robinson, i Casey 81, particularly for the purpose of enabling a married woman gave her own judg- the parties in the meantime to honestly, ment bond for balance of purchase money calmly, fairly and amicably adjust the of land. The judgment was opened, the equities between them and terminate the coverture was admitted, but judgment litigation, the lien of the levy to continue.

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VOL. IV.

No. 18.

bail money,

YORK LEGAL RECORD. two judgment notes with interest there

on, being then due from said Henry to his THURSDAY, JULY 5, 1883.

said wife Margaret; all which the said COMMON PLEAS—IN EQUITY.

Samuel Laird then and there well knew, and as your orators believe, the said Ed

ward D. Bentzel, Esq., also knew. Bierbower et ux. v. Laird and Bentzel.

3. That Samuel Laird, before the payEquity--Action at Law—- Specific per- ment by him of the money as bail for formance.

Henry C. Bierbower, prevailed upon A., as surety for B., paid a judgment recovered against Margaret to consent and agree to make them.

B.'s wife, to indemnity A., assigned two judgments which she held against B. Opon the distribution of

an assignment of her two judgment notes B.'s assigned estate, A. received a dividend on the two to him as collateral security for the injudgments and also on his claim against B, by reason of his payment of the debt on which he was surety. After- debtedness of her husband to Laird, growwards, E., as assignee of A., attached B.'s legacy under D.'s will and received a sum much larger than the original ing out of a liability of Laird to pay the debt. B. and wife then filed a bill in equity, alleging that the assignment of the judgments by the wife to A. was

and that all monies that fraudulent; or if not, that she was entitled to receive from A. and E., or either of them, the amount received by them should be realized by him on said two over and above the original sum of money paid by A. as surety for B. and praying that the whole of the moneys judgment notes, over and above theamount

by A. of the amount paid by A. as aforesaid, be decreed to be of said bail money, should be paid over paid to the wife of B. HELD, ou demurrer, that a bill in equity will not be in this case.

by him to her. All the facts necessary to a complete remedy at law are known in this case, and the whole matter relates to

4. That on the 12th day of March, 1879 a single trausaction. It is clear that an adequate remedy exists at law, and therefore equity will not entertain

the said Samuel Laird came to the resijurisdiction.

dence of the Bierbowers and produced a Under such a state of affairs, the filing by plaintiff's counsel of a certificate setting forth that in his opinion the

paper writing as follows : case is of such a nature that no adequate remedy can be obtained at law, will not avail to save the proceedings.

“Know all men'by these presents that Demurrer to bill in equity.

I, Margaret Bierbower, in consideration

of the sum of money due on the within The bill in equity substantially sets judgment note, have granted, bargained, forth the following facts :

transferred, assigned and made over unto That the administrators of Jacob Samuel Laird, his heirs, executors, adminMyers, deceased, brought suit against istrators and assigns, the within judgment Henry C. Bierbower and Samuel Laird note, together with all the benefits and

, (surety on a note for $625,) and recovered advantages that may be obtained thereby. judgment, and that Samuel Laird, on Witness my hand and seal this 12th day April 5, 1879, paid counsel of said ad- of March, 1879. ministrators $457-77 in full of the balance MARGARET BIER BOWER." due on said note with interest and costs.

This assignment was written on the 2. That at the time said Samuel Laird back of each of the judgment notes. so paid said bail money for said Henry C. 5. Judgment was entered on these Bierbower, the latter was in embarrassed notes against Bierbower, and the assigncircumstances and insolvent. That at the ment to Laird marked on the docket. same time, his wife, the said Margaret, 6. Bierbower executed a deed of assignheld in her own right and as her own sep- ment to Laird for the benefit of creditors, arate property, two several judgment excepting the wife's separate estate. notes, each for the payment of five hun- 7. Before the Auditor distributing dred dollars with interest from date, against Bierbower's estate, Laird presented a claim her husband, the said Henry C. Bierbow- for $790, paid by him as surety for Bierer; first of said judgment notes being bower: and the two judgment notes asdated April 1, 1875, payable one year af- signed to him as above-mentioned. He ter date ; and the whole amount of said received a dividend of $116.87, on the

I.

II.

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claim and notes. The Bierbowers were end pray Honors to order and decree that not present at the audit, and the Auditor's the said defendants account to your orators report was confirmed.

for the use aforesaid, for all monies re8. On March 2, 1881, the legacy of ceived by them or either of them on the Bierbower, under the will of Englehart said two judgment notes, the judgments Melchinger, deceased, was attached on the and attachments thereon, and to pay the said judgments. The attachment was same over to your orators for the use never served on Bierbower, no appear- aforesaid, with interest thereon. ance was entered, and no judgment was

14. Or that your honors may order and taken against the garnishees.

decree the said defendants and each of 9. On September 25, 1882, these judg- them to account and pay over to your ments were assigned to E. D. Bentzel, Esq. orators for the use aforesaid, all monies re

10. The Auditor in the Melchinger es- ceived by them or either of them on said tate awarded to E. D. Bentzel, Esq., $1,- collaterals, with interest over and above 454.37, of which $39.84 was for costs.

the true balance of the said indebtedness E. D. Bentzel, Esq., received said of the said Henry C. Bierbower to the amount from the executors of Melchinger. said Samuel Laird, after deducting and This was $724.08 over and above the true crediting the sum of $116.87, dividends balance of the indebtedness of Bierbower received as aforesaid by the said Laird out to Laird as surety aforesaid.

of the assigned estate of H. C. Bierbower;

and that your orators may have such 12. Alleges the retention by Bentzel

other and further relief in the premises as and Laird, or either of them of said sum of

to your Honors shall seem meet and the $724.08 in fraud of the rights of Bierbower and wife, and charges :

nature of the case may require, and to That the said assignments by the award a writ of subpæna, &c.

that end may it please your Honors to said Margaret Bierbower of her said two judgment notes, to the said Samuel Laird,. To this bill the defendants filed the folin manner and form as stated in the fourth

lowing demurrer : paragraph of this bill, were null and void The defendants demur to the whole bill in law.

of complaint of said plaintiffs, and for b. That the said assignments were ob

cause of demurrer show: tained fraudulently, and conferred no legal First—The defendants have not by rights whatever upon the said Samuel their said bill made or stated such a case Laird.

as doth or ought to entitle them to such c. That even though the said assign- relief as is therein sought or prayed for ment of the said two judgment notes by from or against the defendants. the said Margaret to the said Laird were SecondThere is a complete and adenot fraudulent and void as to said Mar- quate remedy at law for the plaintiffs garet Bierbower, yet the same were held against the defendants, to redress the by him as collaterals as stated in this, and said alleged grieviences set out in the plainall and every use the said Laird has made tiff's bill of complaint; and their remedy of said collaterals, or the monies realized for said alleged greviences is not in equity. thereon, in violation of said agreement to Wherefore the defendants do demur to hold and use them as collateral, are fraudu- said bill of complaint, and pray the judglent and void as to the equitable rights of ment of the Court whether they shall be the said Margaret Bierbower.

compelled to make any other or further 13. Wherefore, your orators, having no answer to said bill, and pray to be hence adequate remedy at law, pray your honor- dismissed with their reasonable costs, in able court for relief in equity, and to this their behalf sustained.

a.

any

Plaintiff's counsel on the argument filed sary for a full and equitable adjustment of the following paper :

the controversy.” But all this would be I, H. L. Fisher, counsel filing the bill in an idle ceremony in this case, in which all this case, hereby certify that, in my opin- the facts necessary to a complete remedy ion, the case is of such a nature that no at law are already known, and where the adequate remedy can be obtained at law, whole matter relates to a single transacand that the remedy at law will be attended tion. 3 P. & W. 297; 6 Wh 625; 5 Wr. with great additional trouble, inconveni

II2. Mrs. Bierbower assigned two judgence and delay; and I hereby respectfully ment notes to Laird one of the defendants, ask leave of the Court to be allowed to out of which to reimburse himself for file this certificate as amendatory of the loss he might sustain by reason of his bill in this case.

suretyship for her husband. The precise

amount he received, and the amount necesJohn W. Bittinger, for demurrer.

sary to make him whole, have already H. L. Fisher, contra.

been ascertained, and are specifically set July 2, 1883. WICKES, P.J. The cer- forth in the bill. tificate filed by plaintiff's counsel after the It is said, first—That the assignment of argument of the demurrer, will not avail to the judgment notes were fraudulent and save the proceeding. It is clear that an void. And, secondly—If not fraudulent adequate remedy exists at law, and it is and void, that under an express agreement conceded that when such a remedy is the plaintiff is entitled to recover whatopen, equity will not entertain jurisdic- ever balance remains in Laird's hands. tion.

There would seem to be no difficulty about This is really in the nature of a proceed sustaining a common law action about

Said the Court in ing to compel the specific performance of such circumstances. a contract, although not placed upon that Lee v. Gibbons, 14 S. & R. III, “a man footing, nor could it be, as it is not sought may disaffirm the act ab initio by reason to have the property assigned returned in

of the fraud and bring his specific action specie, nor is there any uncertainty as to

and recover his actual damages, or affirm the measure and calculation of damages. it and demand the money—he may make (Brightley's Equity 184-5.) But it is his election." Why may they not in this said an action of account render would

case, do the same? I am of the opinion have lain on the common law side of the that the demurrer be sustained, and the bill Court, and that therefore after filing the dismissed at the costs of the plaintiff. certificate above referred to under the provisions of the Act of 1880; (Purdon 591,

COMMON PLEAS. pl. 4.,) the plaintiff has a right to proceed by bill in equity. Account render Spangler v. Keystone Mutual Benefit Assohowever would be a most inappropriate remedy under the facts set forth in the

ciation. bill.

Life Insurance----Suit against Mutual The first judgment in such an action is

Company--- Forum.

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A was insured in York in the defendant company, which properly quod computet, and then either

has its office in Lehigh county. Afterward, she assigned by Auditors or by a jury in the sound there. B. brought suit against the defendant company discretion of the court, an account is set

in York county, the writ being directed to the Sheriff of

Lehigh county, and by him served on the defendant.tled and a balance ascertained.

HELD, that the service must be set aside.

The Act of 1857 permits suit to be brought in the county

where the property insured is located; this is tantamount The acts 1840 and 1831, provide for the to saying where the property insured is destroyed. The compulsory production of "books, docu

place where the loss occurs determines the jurisdiction, ior then only does the right of action accrue.

insurance, the place of death is the place of loss, and the ments or papers as may appear to be neces- suit must be brought in that forum.

the insurance to B., then moved to Baltimore, and died

So in life

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