| note was, in fact, the note of the Safeguard Insurance Company of Pennsylvania, and bears upon the back of it the seal of said company, which plaintiff well knew when he took said note.'

A. S. Biddle and McMurtrie, for rule. 1. The affidavit does not aver that plaintiff knew that the amount loaned was less than the face of the note. 2. The note was endorsed by the company for the accommodation of Hilt, the maker. It is of no consequence that the endorsement was under seal, being made by a corporation, or that it was placed above Jan. 5. that of the payee, Rand.

C. P. No. 2.

Jan. 9.

ration of no set-off anticipates a defence, and is not affidavit, and directed the taking of deposition, with within the affidavit of defence law. It may be in- notice to the respondent. ferred from the affidavit, which states that the two instruments were signed contemporaneously, that plaintiff knew of the attempt to evade the usury laws, and this is a presumption which must be disproved by plaintiff. As the transaction was originally usurious, and there has been no failure to pay the interest really due, there has been really no breach for which a sci. fa. could issue.

Weaver v. Lynch, 1 C. 449.

Ashton's Appeal, 23 P. F. Smith, 162.
Fitzsimons v. Baum, 8 Wr. 40.

Seidenbender v. Charles' Adm, 4 S. & R. 160.
Duquesne Bank's App., 24 P. F. Smith, 426.
Wall v. Dovey, 10 P. F. Smith, 212.
Commonwealth v. Hoffman, 24 P. F. Smith, 111.
Philanthropic Building Association v. McKnight,
11 C. 470.

Heath v. Page, 12 Wr. 130.

Bossler v. Rheem, 29 Leg. Intel. 196.

KENT V. PATTISON.
Affidavit of defence-Copy filed out of time.
Rule to strike off judgment.

man for want of affidavit of defence. The appeal
Judgment was entered in an appeal from an alder-
was entered April 17th. Copy filed September 18th,
and proof of service of copy and judgment for want
of affidavit entered October 24th.

Davis & Simpson, for rule.
Rule absolute.

Amounting altogether to the sum of $529 26 which macadamizing had been done upon petition under Act of 24 March, 1870, the contract therefor having been made between the superintendents of highways of the 22d ward, and Sharp, the equitable Jan. 9. plaintiff.

Rule for judgment for want of a plea. Plaintiff ruled defendant to plead, but the latter demanded oyer of certain writings, whereupon the

present rule was entered.

Osborn, for rule, proceeded to argue that the demand for oyer was erroneous for certain reasons. Sloan, contra.

THE COURT. The proper practice is to enter judgment in the regular manner, and the defendant may then move to strike off the judgment, on the ground that he was entitled to oyer.

Rule withdrawn.

The defendant, in his affidavit of defence, alleged1. That the alleged contract was not made by deponent. nor by the legally constituted highway department of the city, nor by virtue of any city

ordinance.

front of Peale Street, laid out on the plan of the
2. That part of the space macadamized was the
city, but not yet opened, and deponent was advised
the intersection of said street.
that he was not liable for the work done in front of

measuring and percentage (supra) were illegal.
3. That deponent was advised that the charges for

4. That the said Mill Street was a public highway of the city, and had been thoroughly macadamized several years before. That the present claim was for repairs to the macadamizing previously done, and deponent was advised that he was not liable, etc. [It was not alleged that the previous macadamizing had been done by the city at the expense of the owners.]

C. E. Morris, for the rule.
Vail, contra, cited—

Moyamensing v. Irwin (Ins), cited in II Purdon,
p. 1088.
Rule discharged.

Parol mortgage-Evidence-Notice.
Error to the Common Pleas of Clarion County.
Ejectment for the recovery of several tracts of
land in Clarion County.

Guthrie, the defendant, was the owner of the land in dispute until the 8th of May, 1857, when his title was legally divested by a sheriff's sale. Samuel L. Lane was one of the purchasers of the land sold, and having subsequently acquired the title of his co-tenants, conveyed the whole tract to Arnold Plummer. Nearly seven years after this conveyance Guthrie leased the property from Plummer, for the term of one year, under an agreement for the payment of a stipulated rent. Arnold Plummer is now dead, and Guthrie, being still in possession, refuses to surrender the property to the plaintiff, who is the said Plummer's sole devisee.

for

U. S. v. Mertz, 2 Watts, 406.
Blight v. Schenk, 10 Barr, 292.
Porter v. Mayfield, 9 Harris. 263.
Boyer v. Sinith, 3 Watts, 449.
Bennett v. Fulmer, 13 Wright, 156.
Rhines v. Baird, 5 Wright, 262.

Odenbaugh v. Bradford. 17 P. F. Smith, 96.
Reitenbaugh v. Ludwick, 7 Casey, 131.
Kerr v. Gilmore, 6 Watts, 405.

Guthrie v. Kahle, 10 Wright, 331.
Hamett v. Dundas, 4 Barr, 178.
Kunkle v. Wolfersberger, 6 Watts, 126.
Todd v. Campbell, 8 Casey, 250.
DeFrance v. DeFrance, 10 Casey, 385.
McGinity v. McGinity, 13 P. F. Smith, 38.
Haines v. Thompson, 20 P. F. Smith, 434.
Reichart v. Castator, 5 Binney, 112.
Evans v. Drair, 12 Harris, 162.
Leshy v. Gardner, 3 W. & S. 314.
Douglass v. Lucas, 13 P. F. Smith, 9.
Rankin v. Simpson. 7 Harris, 471.
Young v. Algeo, 3 Watts, 223.

Wm. L. Corbett, T. S. Wilson, and Geo. A. Jenks, defendant in error, cited-

County v. Leidy, 10 Barr, 45.

Doe v. Maisey, 8 Barn. & Cress. 767.
Horn v. Pattison, 1 Grant, 304.
Harper's Appeal, 14 Smith, 315.
Spering's Appeal, 10 Smith, 210.

Jan. 4, 1875. Judgment reversed, and a venire facias de novo awarded.

stances which would not move a chancellor to decree a conveyance; and that a knowledge of the facts and circumstances must in all cases be brought home to the holder of the legal title in order to charge him therewith.

The Court below, under objection, admitted the THE COURT said, that a parol defeasance to deed deposition of Samuel L. Lane, stating certain nego- required the clear and unequivocal proof of an agreetiations which had taken place between the deponent ment substantially contemporaneous with the execuand defendant, some ten months prior to the convey- tion and delivery of the deed; that such an agree ance to Plummer, and in relation thereto. The latter.ment would not be inferred from facts and circumhowever, was not present at any of these conversations, nor was it shown that they had ever been communicated to him. The defendant testified that, owing to certain business transactions which had never been settled, Plummer was his debtor, at the time the conveyance was made, for an amount exceeding the value of the land conveyed. There was also testimony showing that Plummer had declared. some time prior to the conveyance, that Guthrie was desirous that he should purchase and hold the property for the latter's benefit. And there was also evidence that after Plummer had become possessed of the title, he had expressed his willingness to reconvey to Guthrie at some future time.

The charge of the Court below was partially to the effect that if the jury believed from the evidence that the transaction was substantially a mortgage, a conclusion which the existence of the subsequent lease need not prevent, their verdict would then depend upon the fact as to whether the debt, which had been thus secured, still remained unpaid or not. The Court further instructed that the conclusion of the jury as to the indebtedness of the defendant would be determined by an investigation and balancing of the unsettled accounts between Plummer, plaintiff's devisor, and the defendant.

Opinion by MERCUR, J.

Jan. '72, 167.

Jan. 2.

HEBREW EDUCATION SOCIETY v. BUSSIER. Covenant to perform on contingency which does not arise-Performance of useless thing covenanted excused-Resulting trust barred by Act of 1856— Uninterrupted possession for forty years.

In 1854 the plaintiffs in error bought of Sarah Harris, defendant's testatrix, a property in Philadel phia, known as the Seventh Street Baptist Church, for $10,500. The property above named was devised to Sarah Harris by her husband, Theophilus Harris, who derived his title under three deeds. The last was made to him by Benjamin Lee and others named, as the Trustees of the Seventh Street Baptist Church and Congregation," in fee. conveying to Harris all the estate, title, etc., of the said trustees to the preVerdict and judgment for plaintiff to be released mises in question. Some doubt as to the validity upon the payment of $4.00 in four quarterly pay-of Harris's title having arisen in consequence of

ments.

this deed, it was agreed that the purchase money should remain unpaid as a mortgage on the premises, and Sarah Harris covenanted with the Hebrew Education Society, after reciting the above facts, that she would, as early as practicable, at her own cost and

"expense. commence, prosecute, and have com"pleted such proceeding in equity, or otherwise, as "may, by counsel learned in the law, be deemed pro"per, to perfect the title of the before-named corpora"tion, to the said described premises, so as to debar "and estop the before named Trustees of the Seventh "Street Baptist Church and Congregation, and all "persons claiming, as members of said church and "congregation, or under them, as well as the cor"poration of the said Baptist Church and Congregation from having, asserting, or claiming any estate, "right, title or interest, either at law or in equity, of, "in, and to the said premises, with the appurtenances." And she further agreed not to demand payment of any part of the principal of the said mortgage debt till "good and sufficient marketable "title to the premises in question shall be made and "perfected in the said Hebrew Education Society." In 1870 a sci. fa. sur mortgage issued, pleas were filed, and the verdict of the jury, in answer to questions put by the Court (MITCHELL, J.), was substantially as follows:

66

Theophilus Harris purchased the premises from the executors of Maule, in 1833, and received a conveyance from them; he paid the purchase-money out of his own moneys; the Seventh Street Baptist Church and Congregation did not contribute any funds towards the purchase of the premises or the erection of the building thereon; Harris entered into possession about the time of the deed to him, and continued in possession till his death in 1841. He expended money subsequent to the purchase on the erection and repairs of the building. The church and congregation were aware of the purchase in 1833, and acquiesced, and there was no claim to possession by the church and congregation. The church organization was abandoned a few months after Harris's death. The premises were in the exclusive possession of Harris's devisee after his death, and since 1854 in that of the plaintiffs in error to the time of the issuing of the sci. fa. in 1870, without entry or suit brought by the church or congregation; defendants in error consulted counsel with a view to institute proceedings to bar any claim of title by said church and congregation, and were advised that further proceedings were unnecessary. All the papers, etc., given in evidence were in the knowledge of the parties at the time the covenant was made, and the said covenant was part of the consideration for the purchase. The defendants in error never commenced any proceedings to perfect the title of the Hebrew Education Society. The jury referred the question to the Court, on which side the verdict should be entered upon the foregoing facts. Judgment was entered for the defendants in error, and a writ of error taken. The assignments of error were the admission of the evidence on which the jury found their verdict, and the Judge's charge, that, if the plaintiffs below consulted counsel and were advised that no proceedings were necessary, they were thereby excused from performance.

Dropsie, for plaintiff's in error.

I. Plaintiff below should have shown performance of the covenant or an excuse for not performing it. The plaintiff was estopped from denying a defect in the title. A material fact recited in a deed cannot be denied.

Carver v. Jackson, Pet. 1.

Jackson v. Parkhurst, 9 Wend. 209.

Shelley v. Wright, Willes' R. 9.
Simdon v. Eckstein, 22 Cal. 580.
Jones v. Williams, 2 Stark, 52.
Harrison v. Vallence, 8 E. C L. R. 239.
Brown v. M'Cormick, 6 Watts, 60.

The question of defect should not be determined by evidence of a lawyer's opinion. The plaintiffs in error had a right to choose the counsel whose opinion was to be taken.

Allen v. Wedgewood, 3 Bulst. 168.
M'Sherry v. Askew, 1 Y. 79.
Lamb's Case, Coke, Part V., 23, b.
Baker v. Bulstrode, 1 Mod. 104.

The opinion of counsel should have been communicated before suit brought.

II. Lee and others conveyed to Harris as trustee; Harris therefore took the land subject to the trust. No power is given to the trustees by the charter of the church to convey.

It is sufficient that the vendee has notice that the
vendor is a trustee to affect him with the trust.
Maples v. Medlin, 1 Murph. (N. C.) 219.
Walsh v. Still, 2 Pars. Eq. Ca. 21.

The cestui que trust need not know of the trust to affect purchaser with notice.

Cory v. Eyre, 1 DeG. J. & S. 149.

Act of Apr. 22, 1856, 8 6 (Purd. Dig. 930, pl. 14), applies to resulting but not to express trusts. Harper's App., 64 Pa. St. R. 315.

John G. Johnson (with him Wharton), contra. The premises have been held in the uninterrupted possession of plaintiffs in error and their predeces sors for forty years. Defendants can do nothing more now to perfect the title. The contingency on which the covenant was to take effect has never occurred. There never was a title in the church ad verse to that of Harris. If there was a trust it was resulting, and is barred by the Act of 1856, supra

Jan. 11th. PER CURIAM. It may be noticed that the mortgage in suit was not made on a condition as to the payment. The instrument set up in defence is a separate covenant on the part of M13. Harris, the executrix, to commence and prosecute proceedings in equity or otherwise to perfect the title of the Hebrew Education Society to the prem ises conveyed, and not to demand payment of the mortgage until a good and sufficient marketable title should be made and perfected in the Society, their successors and assigns. It is evident, therefore, that the true intent of the covenant was to provide for a good title being vested in the Society. If such a title became vested in the Society, it is evident this was the utmost the covenant could or was intended to accomplish. Now the maxim of the law is that no one shall be required to do a vain or useless thing. According to the facts found the Society became vested with a perfect title under the general statute of limitations, if it were ever questionable that it had not existed before time ripened it into an indefeasible title. This in effect disposes of all of the objections to the evidence. The evidence objected to was pertinent to some of the legal requi sites of the statute to show that the possession was taken and held adversely to all others, and for the benefit of the grantees of the estate, and that they were in continuous peaceable possession, claiming title in themselves and in their own right, and not in that of another. Time having thus perfected the title of the Society, the covenant to perfect it was

satisfied in equity, and its use being a condition in the mortgage itself, suspending the payment, the defence was untenable. Finding no error in the record, the judgment is affirmed.

Jan. 4.

Jan. 73, 81. PALETHORP V. WHITAKER.
Attorney's lien on client's money for services rendered
-Improper language in counsel's paper-book-
"Estoppel by deeds."

of a writ of error. Those that may be said to be questions of law are not sustained by the bill of ex ceptions. The deed from Michael Schoenhut to Henry Brentz was not returned with the record, and formed no part of the bill of exceptions, whether in fact, or by reference and setting it forth in the paperbook; we discover no error in the record as returned, and the judgment is therefore affirmed.

Jan. '73, 153.

Jan 8.

CALDWELL v. KLOTZ & ARMSTRONG, Defendants, and
COATES BROS., Garnishees.

to account to creditors by garnishees who have had possession of and then surrendered property of a debtor.

Writ of error to the District Court of the City and County of Philadelphia. Attachment sur judgment to which was filed by the garnishees a plea of nulla bona.

The plaintiff in error, who was also plaintiff below, proved in the court below that Klotz & Armstrong, trading as Paul Klotz, having become insolvent, assigned, May 30, 1864, their woollen mill, with machinery, stock, etc., to three of their largest creditors, one of whom was the Coates Brothers, garnishees in this case: The three creditors were to run the mill: First, to pay the expenses of carrying it on; secondly, to pay the debts of Klotz & Armstrong to them; and thirdly, if any surplus remained to pay it over to Klotz & Armstrong.

Error to the District Court of Philadelphia. This was an action by Whitaker to recover money retained by Palethorp as a fee for professional services from money belonging to the former, and col- Attachment-execution-Burden of proof-Liability lected by Palethorp. The latter had sold certain houses for Whitaker, who expressed himself satisfied with the sale, and executed deeds for the premises. The Court below (THAYER, J.) charged the jury that "there was a balance of $199, from which the jury are to determine on the defendant's claim for professional services. . . If Mr. Palethorp acted in good faith, and I see no evidence to show that he acted otherwise, he is entitled to receive from the plaintiff a reasonable compensation for his professional services." Verdict for $300 The charge of the Court below was assigned for error. In Palethorp's paper-book the following language was used: "As a man, and with due regard to his rights and interests. he informed defendant in error that the money was retained for unpaid professional services, honestly, faithfully, and successfully rendered, and that he had no right to ask for it, let alone receive it; also, as he did not intend to pay him his fees, he would decline to further act as his counsel, and will thank him never to show his face in his office again. When almost six years had passed from this interview, and when he supposed that receipts and other evidences would be lost, so that a defence to his most illegal and unjust claim could not be made, he brings this suit; and the jury, to their eternal disgrace, rendered a verdict in his favor, and any three of the Judges in the Court below, contrary to the opinion and expectation of any member of the bar who had a knowledge of this case, except the counsel for the plaintiff below, refused to set this most shameful and outrageous verdict aside, compelling the plaintiff in error, whose respectability and fidelity to his clients is unquestioned and unquestionable, and who can, with pride and pleasure, proclaim what his clients will testify, that his uniform practice is to pay money over to clients immediately, to appeal to this honorable Court for redress for the most monstrous wrong done him."

AGNEW, C. J., when the paper-book was handed up, said that the above language was highly improper, reflecting, as it did, on the opposite side, counsel, and the Court, and added that if anything of the kind occurred in future the paper-book would be suppressed.

Palethorp, for plaintiff in error.

Defendant in error is estopped by his deeds from denying that the services were rendered. Attorneys have a lien on client's money and papers for professional services.

The other side was not called on.

Jan. 11th. PER CURIAM. Most of the assign ments of error in this are to matters not the subject

In furtherance of this agreement two mortgages were made June 4, 1864, by Klotz & Armstrong, of the mill premises spoken of, to the three creditors, to secure the then indebtedness of the former to the latter, and to secure advances to be made by the latter, and the possible liabilities to be incurred by them in running the mill. September 29, 1864, the other two of the three creditors, spoken of above, assigned all their interest to the third creditor, Coates Brothers, the garnishees in this case. On November 26, 1864, the attachment in this case was levied, and the question. for determination was whether at this time the garnishees had money, etc., belonging to Klotz & Armstrong, sufficient to pay the latter's debt to Caldwell, the plaintiff.

The plaintiff proved that in accordance with the agreement, Coates Brothers took possession of the mill and of property therein worth $30,000; that Coates Brothers held possession of the assigned property nearly a year, and then surrendered the mill, but no part of the personal property, to Klotz & Armstrong; that no account was ever rendered to Klotz & Armstrong, as required by the agree ment; by the testimony of Klotz, that the assignees were fully paid, and Armstrong's evidence was that they were paid in about four months; that the mortgages were satisfied. The garnishees offered no testimony, and the plaintiff took the position that he had made out a prima facie case, and that the burden to account for the personal property put into their hands was transferred to the garnishees. The Court instructed the jury, that the burden was upon the plaintiff to show that the assigned property had produced more than enough to pay the gar nishees' claims, and that, if the plaintiff had uot