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Vol. VII.

Work Legal Record. S. Ruth and this deponent to A. Smith,

the above plaintiff, on the 4th day of THURSDAY, MAY 10, 1894. No. 48. August, A. D. 1883.

That at signing of the above note this well as other matters involved in a con- deponent was a minor, being under the flict of testimony, will be for the jury.

age of twenty-one years. We think enough has been proven to That deponent became twenty-one entitle the petitioner to a trial by jury, years of age on the 26th day of October, and therefore it is our duty to open the A. D. 1883, more than two months after judgment and let the defendant into a the signing of the above note. defence.

That by reason of having been a minor The rule to open the judgment and let

at the time of the signing of said note this the defendant into a defence is made ab

deponent is advised and believes he is solute.

not liable upon the same, all of which he

avers and expects to be able to prove at Smith y. Ruth and Welsh.

the trial of the cause. Infant-Note of Judgment on-Revi

Stewart, Niles & Neff, contra. val of

Charles M. Wolff for motion.

February 26, 1894. BITTENGER, J.On a scire facias to revive a judgment de- The affidavit of defence of the defendant, fendent filed his affidavit of defence, setting T. S. Welsh, is that the above judgment forth that the judgment sought to be revived was obtained before a Justice of the Peace on was recovered before L. D. Sell, Esq., a a promissory note signed by the defendant Justice of the Peace, and revived before while a minor. Held, on a motion for judg-|C. W. Forney, Esq., also a Justice of the ment for want of a sufficient affidavit of de- Peace, on a promissory note of the defence, to be a sufficient defence.

The Justice had no jurisdiction of the per- fendants to the plaintiff, of August 4, son of the defendant. Of this he may take 1883, and that at the time he signed said advantage now, and it is a legal defence to the note he was a minor under the age of scire facias.

twenty-one years.

Said judgment was Motion for judgment for want of a filed on a transcript, and entered in this sufficient affidavit of defence.

The plaintiff having issued a scire fa- The general rule is that the contract or cias to revive a judgment founded on a obligation of one, executed or made durtranscript from a Justice of the Peace, ing his minority, is not binding upon one of the defendants filed the following him, unless he confirms it after araffidavit of defence:

riving at the age of twenty-one years, I

Chitty on Contracts 194. York County, S. S.:

A judgment entered on a note and T. S. Welsh, one of the defendants, be- warrant of an infant in the Common ing duly sworn according to law, deposes Pleas, will be stricken off on application

being made, and the infancy being That he has a just, true and legal de- shown, Knox v. Flack, 22 Pa. 337. "It fence to the whole of the plaintiff's de- was in that case, want of jurisdiction of mand in the above suit, the nature and the party"; McMilland vs. Pomeroy, 75 character of which is as follows:

Pa. 410; Allen v. Krips, 119 Pa. 1. The That the judgment entered to No. 383, appearance of an infant in a suit brought August Term, 1891, and sought to be re- against him is not a judicial act, and a vived by the above scire facias, is found- judgment against an infant in a contract ed upon a Transcript taken from the made during his minority, may be redocket of C. W. Forney, Esq., a Justice versed after full age; Silver v. Shellback, of the Peace in said County.

i Dal. 165. That the above judgment was a scire In an action of debt, founded upon a facias to revive the judgment entered judgment confessed before a justice of upon the docket of Lewis D. Sell, Esq., the peace, the defendant may plead that who was also a Justice of the Peace of he was an infant when the judgment was said County.

obtained, and avail himself of it, as a deThat the said judgment was founde:1 fence; Etter v. Curtis, 7 W. & S. 170. upon a promissory note, given by Isaac This last case is quoted with approval in


and says:

Weaver v. Brenner, 145 Pa. 299. In the proven should have controlled the verdict opinion, on page 306, it is said "As there in his favor. The point is as follows: could be no remedy afforded, and neither

1. "If the jury believe from the evithe Court of Common Pleas nor the mag-dence in the case, that Edward Burtch istrate had power to open the judgment drew pension money, and applied it to the defence was permitted as an excep- the purchase of the real estate described tion to, if not a violation of a settled rule, in the writ, taking the title in the name on the ground of necessity, and to pre- of his wife, said real estate was not liable vent a failure of justice."

to seizure and sale for the husband's debts In the case under consideration, the then and the verdict of the jury must be Justice had no jurisdiction of the person for the plaintiff.” of the defendant. Of this he may take advantage now.

This point raised the controlling quesIt is a legal defence, under the authorities cited. The affidaviť tion in the case. And, as the evidence in is ample to prevent the entry of judg- this regard was not contradicted, but cor

roborated by the defendant's evidence, ment, upon this rule.

The motion is overruled, and the rule its affirmation by the court would have is discharged.

settled the main question in dispute in

favor of the plaintiff. Was the court C. P. of

Monroe ('o. right? The plaintiff proved that he was Burtch v. Burtch.

a pensioner of the United States ; that as Ejectment -- Pensions -- United States such he received back pension money, in Statute, Sec. 47-47.

the sum of seven hundred and fifty dol

lars; that he bargained with Melchior A pensioner, drawing his pension money, Heller for the land in dispute, for the and applying it to the purchase of real estate, taking the title in the name of his wise, makes consideration of six hundred and thirtysuch real estate liable to seizure and sale for three dollars; that the back pension the payment of his debts.

money came to him in the shape of a Motion for a new trial.

draft on the Treasurer of the United

States, which he carried around on his The facts appear in full in the opinion person for a period not exceeding a of the court.

month, and then had it cashed by the C. Burnett, for motion.

Stroudsburg Bank; that he then paid five S. Holmes, contra.

hundred dollars of the consideration of February 26, 1894. . CRAIG, P. J.- deed made to his wife, Elizabeth Burtch,

the land out of this money, and had the This was an action in ejectment. It was tried before the late Judge Dreher, on

on the 22nd day of November, 1880. the 2nd of March, 1893, and a verdict The remaining consideration of one was rendered in favor of the defendant. hundred and thirty-three dollars was paid It does not appear that Judge Dreher's as follows: Sixty-two dollars was paid by charge to the jury was ever reduced to Edward Burtch after the delivery of the writing and filed. If it was it does not Jeed, and before the sheriff's sale; and seem to be in existence now. We are the balance of seventy-one dollars was therefore left at considerable disadvan- paid by William Burtch after the sheriff's tage in passing on the present motion sale. This one hundred and thirty-three Reasons for a new trial were filed on the dollars was not paid out of the pension 4th day of March, 1894, by the plaintiff, money. For the purpose of this rule we

, . · and on the 6th of the same month a rule will treat the consideration money as if it was entered to show cause why a new was wholly paid out of the pension money trial should not be granted. This is the realized by Edward Burtch on the draft. rule now before us.

The plaintiff, to maintain his contenOn the trial the plaintiff presented two tion, refers us to $ 4747 of the Revised points for affirmation by the court. They minutes of the United States, which were both negatived in this language: reads as follows: "both points negativel, see general charge “No sum of money due, or to become March 20, 1893." The plaintiff insists due to any pensioner, shall be liable to that his first point should have been af- attachment, levy, or seizure, by or under firmed by the court, and under the facts any legal or equitable process whatever,

he pen

whether the same remain with the pen- Burtch. He drew it from the bank and sion office, or any office, or agent thereof, had it in keeping for some time. He made but shall enure wholly to the benefit of the bargain of purchase with Heller, and such pensioner."

paid five hundred dollars of the considerAnd he contends that this Act of Con- ation money out of the pension money gress protects the property in dispute realized on the craft. Having purchased from seizure and sale upon the ground the property in this way, it would be that it was purchased with money re- liable to execution for his debts. This ceived on the pension draft.

view we have taken is in accord with the To this proposition, we cannot assent. law as stated in the American and EngThe precise question has not been passed lish Encyclopedia of Law, Vol. 18, page upon by our supreme court, but the de- 294. It is there said: cisions, so far as they go, in our opinion

"The object of this statute (Act of are against the contention of the plaintiff. Congress) is to insure the actual recepWe are

tion of the pension money by the person v. "Tallada, 125 Pa. 133, as ruling this entitled to it, and the protection extends

. , point in favor of the plaintiff

. The facts sion office or its agencies, or is in the

so long as the money remains iii of the case show that the pensioner endorsed his check, "and gave it to his

course of transmission to the pensioner. wife, who drew the money and applied it session of the pensioner the protection is

When the money is actually in the posto the purchase of the real estate in question, taking the title in her own name.

gone." The pension money had not reached the

In Jardain v. Fairton Saving Funil hands of the pensioner. In the shape of Ass'n, 44 N. J. L. 376, it is said: “The a draft it was still in transit from the fund is not placed in the hands of a pengovernment when he gave it to his wife. sioner as a trust, but it is to enure wholly During this transit it was protected by to his benefit. When it comes to him in the Act of Congress. And whilst under hand, or personal control, it is his money this protection in the course of transition, as effectually and for all purposes as the Paxson, C. J., holds that the pensioner proceeds of his work or labor would be, had a right to make a gift of it to his and whether he expends it in new conwife, without committing a fraud on his tracts, or it be taken to pay the considercreditors. This was the precise question ation due from him for those of the past, in the case.

And the Chief Justice was it equally enures to his benefit." very careful in his opinion to say:

In Hadsall v. Clark, 2 Chester Co. “We need not discuss the question Repts., 492, Judge Seely says: "No case whether property purchased by a pen- has proposed to so far extend the operasioner with the pension money, and held tion of the Act of Congress as to make it in his own name, would be liable to exe- protect from seizure property, real or cution for his debts. No such question is personal, upon the ground that such before us."

property has been purchased with money

received for pension. And he is also careful not to overrule

And he therefore holds that personal Rozelle v. Rhodes, 116 Pa. 129, where pension money left with a bailee by the property purchased by the pensioner, and pensioner was held to be attachable.

paid for out of moneys received by him

as pension from the United States, is liaIf Edward Burtch, the plaintiff, had ble to seizure under execution issued given his pension draft to his wife, and against him. she had then bought the property then

In Rozelle v. Rhodes, 116 Pa. 129, it in dispute from Melchior Heller with the is held, “that the identical money receivproceeds, and had taken the deed in her ed by a pensioner from the United States own name, we hold that she took a title government, and by him placed in the unassailable by her husband's creditors. hands of a bailee, to be returned in inUnder such circumstances the case of dividuo was attached by a creditor." Holmes v. Talada, supra, would rule our Mr. Justice Clark, at page 134, says: decision. But in this case the pension “It is money which sometime previous money was no longer in the course of to the attachment had been paid to the transmission to the pensioner, Edward pensioner, and which when paid to him

enured wholly to his benefit; it was his before the justice, and any attack upon it money; he could dispose of it as he plea3- must be made there." In that case we ed. The exemption provided by the sta- know the principle was not applied, betutes, upon any fair and reasonable con- cause it was a judgment against a married struction, will only protect the fund, woman, and the record did not show afwhilst in the course of transmission to firmatively that the requisite of the stathe pensioner; after that it is liable to tute with reference to actions against marseizure as other money."

ried women were complied with. It was, To the same effect is McCalla v. Bran- therefore, considered a void judgment. nan, 14 W. N. C. 513; Minnich v. Mc- In the suit under the rule before us we Donald, 3 Lan. Law Review, 65; Spel- can not say that the judgment recovered man v. Aldrich, 126 Mass. 113; Clark v. before the alderman is a void one. We Ingraham, 15 Phila. Repts. 646; Lancas- would not be justified, in our opinion, to ter Poor Directors v. Hartman, 9 C. C. go any further than to say, that the magRepts. 177; Berry v. Berry, 24 Atlantic istrate erred in his admission of the testiRep. 957

mony produced before him on the part of Hence we hold that the property de- the plaintiff. It does not appear by the scribed in the writ was not protected from record that the sole proof of plaintiff's Edward Burtch's creditors by Act of Con-demand was the sworn affidavit of plaingress, and we think that Judge Dreher tiff, and being exparte, deprived the was correct in negativing the point. defendant of his right and benefit of a

At the argument for a new trial the cross-examination. The proper remedy second point of the plaintiff was abandon- in such cases is an appeal, but when flaed; and, as our ruling of the first point grant violations of the rules of evidence disposes of all the reasons for a new trial, are shown by the record, the court, if we are constrained to discharge the rule. there was any misconduct shown debars The rule for a new trial is discharged. the record, would give relief by proceed

ings in certiorari; and we would have C. P. of

Lancaster Co. (one so in this case upon certiorari of the Johns v. Humphreville.

proceedings within time, had it appeared Judgment of Alderman - Transcript - upon the record that the defendant ob

When court will not set aside judgment. Ijected to the mode of proof. We cannot, The court will not strike off a judgment en

however, afford the relief prayed for in tered on a transcript from an alderman's dock this motion. et, on the ground that the record showed that Rule discharged. the plaintiff had not personally appeared and testified before the alderman, but had merely

C. P. of

Luzerne Co. sent his affidavit, and the alderman had refused to allow a continuance to enable the de

Cannon v. Mears et al. fendant to employ counsel, the defendant not Master and Servant-Negligence. having taken an appeal or certiorari in time, because he misunderstood his counsel as to the doing, or about to do, a negligent act, or fail

If a master stands by and sees a servant time within which it must be done.

ing to exercise ordinary care in the performRule to strike off judgment, etc. ance of a duty, in consequence of which a fel

J. W. & W. N. Appel and Brown & low servant may be injured, and does nothing Hensel for rule.

to restrain him, he may fairly be presumed to

have given his assent, and be justly held liable A. S. Johns, contra.

for the consequences, although he may not January 13th, 1894. BRUBAKER, J.- have given express orders. This case comes before us on petition to But in order to imply assent from his mere strike off the judgment entered against presence, and to impute negligence to him it the defendant has mistaken liis remedy. I must be shown that he knew, or ought to have man David L. Deen, of Lancaster. It is known, the facts which made the act negligent. an unusual proceedling. The usual method Rule to take off compulsory non-suit. of testing the validity of a judgment be- E. A. Lynch, J. T. Lenahan for plainfore a magistrate is either by an appeal tiff. or by certiorari. We feel satisfied that Hon. H. W. Palmer, J. A. Davis for the defenrlant has mistaken his remedy. c!efendants. As was said in McKinney v. Brown, 130 January 29, 1894. Rice, P. J.- The Pa. 365. "the judgment is still in force immediate cause of the plaintiff's injury



No. VII.

NO. 49.

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Xork Legal Record. have happene 1. It was not the plaintiff's

fault that they were not carried out, and THURSDAY, MAY 17, 1894.

we are not to be understood as putting

the decision upon the ground of his com was the grossly negligent act of a fellow tributory negligence. Nevertheless, the servant, and it was frankly conceded by orders having been given, the superinhis counsel on the trial that if their em- tendent, who was also on the locomɔtive, ployer and the superintendent had not had a right to presume that they had beer been present-riding on the locomotive obeyed, and hence that the irack was than ran into the car which the plaintiff clear. This is an important fact, in view was unloading-there could be no

re- of the evidence as to the general orders covery against the employer. But the which the superintendent lid 1 given the cases which hold that he is liable for the paintiff. consequences of a wilful or negligent act

After a very careful reconsideration of his servant done in his presence, of the case we can find no evidence of whereby a fellow servant is injured, do negligence on the part of William S. so upon the ground of his power to direct Mears, the defendant, who was present at the actions of his servant, and his implied the time of the accident, which contributassent to the act complained of, or in ed to the plaintiff's injury. The case theremore general terms, upon the ground of fore, is within the general rule regarding his negligence. If a master stands by liability of the master for injuries caused and sees his servant doing or about to do by the negligence of a fellow servant. a negligent act, or failing to exercise ordinary care in the performance of a duty,

Benedick v. Fake. ir consequence of which a fellow servant Vages-Attachment of-Noie for. inay be injured, and does nothing to re- Plaintiff issued an attachment execution on strain him, he may fairly be presumed to Justice of the Peace, attaching money in the

a transcript of a judgment recovered before have given his assent, and be justly held hands of the garnishee. The garnishee in his liable for the consequences. But we answer admitted his indebtedness to the destill think, as we held at the trial, that, in fendant, but claimed that it was for wages due order to imply assent from his mere pres

him. Field, that the attachment must be dis

solved. ence, and to impute negligence to him, it

Even if a note had been given for these must be shown that he knew or ouglit to wages, it could not be attached. have known the facts which made the act

Rule to show cause why attachment negligent. If, under all the facts klown should not be dissolved. to Mr. Mears, or which he ought to have

The petition of William Fake respectknown, the manner in which the engine fully represents : was run or the failure to give p:cper The above writ of attachment execuwarning of its approach to the place ton was issued out of your Honorable where the plaintiff was at work, or the Court, upon judgment entered therein rate of speed, constituted negligence then against the above defendant, to No. 340 perhaps he would be liable, althougli he ci April Term, 1893, for $225.00, and indid not direct how the engirie should be terest from April 1, 1893, to levy and atrun or what warnings or signals should tach the goods and chattels, debts, rights, be given. To be more explicit, if he bal credits and moneys, and deposits and divknown that the plaintiff was or imight be idends whatsoever belonging to Henry engaged at his work on the trestle, his Fake, said defendant, in the hands or failure to keep a lookout, or to direct how possession of your petitioner by the sherthe engine should be run, or what warn- iff of York county ; that your petitioner is ings of its approach should be given, indebted to said Henry Fake, defendant, might have been evidence of negligence in the sum of Two Hundred and Ninety on his part which ought to have been Dollars ($290.00) for wages of manual submitted to the jury. But he did no! labor; that your petitioner is advised and know this fact; on the contrary, if the or- believes that wages of manual labor can ders which had been given to the en- not be attached and that the sanie are exgineer through the plaintiff had been car- empted from attachment by the laws of ried out, the plaintiff would not have been this Commonwealth. on the trestle, and the accident would not He therefore prays your Honors to

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