no mention is made of them at the time of execu- July, '74, 32. Wikoff's Appeal, 3 Harris, 281. The witness, William Carpenter, showed clearly that everything necessary to validate the alterations had been done. If the alterations are not proven, then the will must stand as originally made. [AGNEW, C. J. The jury was sworn to say whether this was his will or not. They say, not. What then is his will? I am not sure that you might not then resort to this paper to find that out.] [SHARSWOOD, J. The jury could have said that is the will, with such and such alterations.] [GORDON, J. The finding of the jury under this issue goes to the whole will, not to the erasures.] This case is ruled by Dixon's Appeal, 5 Smith, 424. See, also, as to erasures Short v. Smith, 4 East, 419. Locke v. James, 11 M. & W. 901. If, therefore, the interlineations were not sufficiently proven, the Court, nevertheless, erred in their instructions to the jury to find for the defendants. Ellmaker and Dickey, for defendants in error. 1. What the original will was cannot be discovered. The erasure is complete, and Mr. Carpenter's testimony on this point is uncertain. The necessary proof of republication was wanting. It must be proved by two witnesses. Jonés v. Hartley, 2 Wharton, 103. We rely on Hock v. Hock, 6 S. & R. 47. Proof of execution must be made by two witnesses each of whom must separately depose to all necessary facts. Derr v. Greenawalt, 31 Legal Intell. 276. Lessee of Musser v. Curry, 3 Wash. C. C. R. 481. Therefore, as we cannot discover the will as originally made, and as the whole disposition of the estate depends upon the valuation set upon the lands devised to his sons, the whole will must fall. ROUNDS v. STEVENSON. March 10. Practice Writ of error on case stated-Paper-books should contain case stuted in full. Error to Common Pleas of Wayne County. Before argument, it appearing that the judgment of the Court below was entered on a case stated, and that the case stated was not contained in the paperbook of the plaintiff in error THE COURT entered judgment of non pros. May 22. DITTENHOEFER v. Mendelsohn. This was assumpsit on a book account. May 17. THE COURT. The paper admitted to pro. C. P. No. 2. bate was the altered will. It was proved by two witnesses only. When one of the subscribing witnesses testified, on the trial of the issue devisavit vel non, that the paper thus admitted on the prima facie proof was altered after he subscribed the will, he contradicted the prima facie evidence of the probate, which left the altered paper unproved and standing on the testimony of the other subscribing witness only, who was dead. The altered will was, therefore, without proof. The will, as it stood before alteration, was not proved, for the deceased subscribing witness had not proved the will as it had originally stood. but proved it only in its altered state, which left the original text proved by a single witness only. Then the alteration being proved by a single witness only, the paper in neither form was legally proved. The consequence is that the paper fell as a will. Judgment affirmed. PER CURIAM. [Opinion in full.] The affidavit set forth that the goods had been should call and take back all that remained unsold purchased with the understanding that plaintiff at a given time. That he never has done so, and that defendant is ready and willing to return such portion, and pay for the rest. Russell, for the rule. May 1. C. P. No. 3. BECKER V. LOUCHEIM. This was an action on the case. The copy filed was in the following form: The following is a copy of book account upon which the above suit is brought March 9th. Making 46 pantaloons, No. 522, @ 25 c. $11.50" The affidavit set forth that the copy filed was not stated to be a copy of any book of original entries, and that the plaintiff repeatedly failed to fulfil his contract with them as to time of returning garments he took to make up, so that they suffered at least thirty-six dollars damages. Dittman, for rule. The affidavit is insufficient in not setting out distinctly how and when the defendants suffered damage. Diehl, contra. The copy filed is not within the Act, being insufficiently headed, and no one charged by it. Burnil v. Burgin, Whart. Dig. Practice, 186. Dist. Ct., March, 1848. Rule discharged. C. P. No. 3. BANK V. ADAMS. Term, 1874, in which suit an affidavit of defence was filed, of which the following is a copy: "The writ of error in which this bond was given was to a judgment of the late District Court; that on the first Monday in January, 1875, the writ was non prossed, a remittitur taken, and the record duly filed in this Court January 11, 1875. On the same day a fi. fa. issued against the defendant Orwig, which was levied on personal property belonging to the defendant, amounting to from $600 to $800. "That the summons in this case, having issued January 29, was improperly issued, the fi. fa. being still pending. That on the 23d of February, 1875, the property of the defendant was sold by the sheriff, whose return simply set forth the levy and subsequent sale for the sum of $108.14; and that the deponent should be credited for that amount." The plaintiff having taken a rule for judgment for want of a sufficient affidavit of defence, the same was May 1. discharged, and subsequently the suit in No. 2 was Promissory note negotiated in fraud of maker-discontinued, and afterwards an amended return Endorsee for value-Affidavit of defence. Rule for judgment for want of a sufficient affidavit of defence. This was an action on a promissory note, of which the following is a copy. $500. Philadelphia, Dec. 10, 1874. Three months after date, I promise to pay to the order of J. C. Thompson, five hundred dollars, without defalcation, value received. made by the sheriff without notice to the present deponent, and the present suit instituted, and this deponent now alleges that he is not bound by the. said return. The amended return was: "I certify, that in obedience to the withiu writ, I levied on personal property of defendant, and afterwards sold the same for the sum of $108.14, which I applied and distributed as follows: The circulation of the note by the broker without accounting for the proceeds, it having been placed C. P. No. 3. in his hands for discount, was fraudulent. May 15. WRIGHT V. VICKER'S ADMINISTRATORS et al. Tenancy in common-Mortgage—An order of sale in proceedings in partition divests the lien of a mortgage given by a co-tenant-The mortgage is thrown upon the share belonging to the co-tenant mortgagor. Rule for judgment for want of a sufficient affidavit of defence. This was a sci. fa. sur mortgage brought by Wright, the mortgagee, against the administrator of the mortgagor, with notice to the terre tenants. The facts of the case are as follows: One of several tenants in common mortgaged his undivided interest in an estate. Before the execu tion of said mortgage proceedings in partition for the division of the property had been commenced. These proceedings were subsequently perfected, and as the estate could not be divided it was sold by the sheriff, under an order of sale, to the present terre tenants. The question is, did the purchasers at the sale take the land divested of the lien of the mortgage? the sale having taken place previous to the issue of the sci. fa. on the mortgage. The share of the co-tenant who had mortgaged amounted after the sale to about $2200. There were two mortgages for $4000 each. Miller, for rule. Under the law, as it was prior to 1867, a sale in partition discharged the mortgage. The act of 1867, Purd. Dig. 479, § 111, and § 112, Act of 1870, changed this as to first mortgages. Girard Insurance Co. v. Bank, 7 Smith, 388. Diermond v. Robinson et al., 2 Y. 324. 111 and The writ of partition is similar to a Bill in Equity. 279. McMurtrie, contra, with whom were Gerhard and A. J. Dixon. A tenant in common cannot prevent partition by over-mortgaging his share. The mortgage is, in fact, a second lien. To rescue this statute from a construction which will lead to such results is not only our object, but our duty. Tenants in common hold by unity of possession; each, however, has a separate estate which may be incumbered or sold. Keeping in view the object of a partition which is the equitable division of an estate amongst those entitled to it, we must remember the distinction. pointed out by GIBSON, C. J., in Com. v. Pool, 6 Watts, 33, when he said that "a sale in partition works a conversion of form without a transmutation of essence, and this distinguishes it from a sale for payment of debts, of which transmutation is the primary and entire intent." If this distinction be a sound one, then the sale in partition did not work an equitable conversion, for that conversion is dependent upon the particular object to be attained by it, and the practical and legal effect of the partition was to designate the precise value of the estate, subject to the lien of the mortgage and to which it attached. What difficulty is there then in holding, that the share of money belonging to this mortgage, or under these proceedings in partition, is, in point of law, as much land, though changed in form, as though an allotment had been made, and as such is bound by the lien of this mortgage? Whatever estate the mortgagor had in this land is now gone, but the money made by the sale under the proceedings in partition represents the share of the mortgagor in the land and its value, and for the The proceedings in partition culminating in a sale purposes of this lien is to be treated as land divest the mortgage. Smith v. Brown, 1 Y. 515. Berger v. Hiester, 6 Wh. 210. Lodge v. Simonton, 2 Pa. 449. 1 Johus. Ch. 565. 2 Dr. & W. 356. 156. The estate in the land having gone, the mortgagee is turned over to his share in the purchase-money which represents the estate. 2 Coke, 168. Bavington v. Clarke, 2 Penna. 115. Diermond v. Robinson et al., 2 Yeates, 324. Miller, in reply. The Orphans' Court decided as to the effect of a sale under mortgage according to Act of 1830. The case of Berger v. Hiester, 5 Wh., does not apply. THE COURT (LUDLOW, P. J.), after stating the facts of the case, proceeded as follows: At the first reading, the Act of Assembly of 26th March, 1867, 1 Purd. Dig. p. 479, seems to be very sweeping and decisive of the controversy against the purchasers. If the lien of the mortgage, the subject of this controversy, shall not be destroyed or in any way affected by any judicial or other sale whatsoever, whether such judicial sale shall be made by virtue or authority of any order or decree of any Orphans' Court or other Court, or of any writ of execution or otherwise howsoever, then an element of confusion has been introduced into our law, which will render it impracticable, if not impossible, to partition an incumbered estate, and will work the grossest injustice to those who are entitled to the protection of the Courts. We thus reach a conclusion which, while it does not disturb the lien of the mortgage, accomplishes the object of the Act of Assembly, and an estate held in common and incumbered may be partitioned according to the true intent and meaning of the law. We do not consider, in the determination of this case, the fact mentioned at the argument that the share in money made by the sale, and belonging to the mortgagor, will not pay the mortgage debt, and for the reason, that the sale measured the value of the estate held by the mortgagor in common with his co-tenants, and certainly the mortgagee is entitled to nothing more. Rule discharged. The answers of the garnishee had denied any amount thereof, on the first day of January of each indebtedness to defendant. May 22. C. P. No. 3. MCMULLIN'S ESTATE. Rule on auditor to certify evidence into Court. [For previous report of this case, see WEEKLY NOTES, p. 415.] The affidavit of the accounting assignee as amended set forth that the auditor reported against him, by disallowing commissions for services, and by charging him with interest for balance on hand though attachment executions were pending; that the auditor also disallowed commissions on a large sum of money shown by the account to have been diligently col lected and distributed; that the testimony of the deponent was important to show the Court that the auditor was not justified in the said findings; and that the testimony as to the attachment executions was also important, for the consideration of the exceptions as to the charging of interest. Hunsicker, for rule. Notes-Time of payment. Rule for judgment for want of sufficient affidavit of defence. This was an action on a promissory note, payable on demand. The affidavit alleged that on June 17, 1873, the defendant entered into a partnership with the plaintiff and others. That the promissory note sued upon was the one referred to in the articles of partnership, annexed to and made a portion of the affidavit, by the third of which articles it was agreed that the payment of said note should be assumed by the firm, and discharged in portions of one-fourth of the That year, until fully discharged, should the firm so long continue; but in case of the dissolution of the firm or the death or withdrawal of the defendant before the payment of the note, that then any balance due thereon shall become immediately payable that the partnership was dissolved January 1, 1875, by the withdrawal of the defendant; that a large balance was due from plaintiff to said defendant, as would appear on a settlement of the firm accounts. the plaintiff and other members of the firm had violated the fourth article of partnership (which provided that in case of any dissatisfaction, the defendant should withdraw from the firm and his interest be ascertained by taking an account of stock and preparing a balance sheet), by preventing the amount of defendant's interest from being ascer tained agreeably thereto; that the plaintiff and other members of the firm had taken possession of all the partnership property, d bts, etc., that the firm had refused to refer the differences between it and the defendant to arbitration as provided in the articles of partnership, and that the defendant had filed a bill in equity in Court of Common Pleas No. 3, praying for an account and the appointment of a receiver. Otterson, for the rule. McGrath and Samuel, contra. The note was a partnership transaction, the payment was assumed by the firm. On defendant's withdrawal, the remaining parties made a new firm. The plaintiff cannot recover against his former copartner until the accounts of the old firm are settled. Ferguson v. Wright, 11 P. F. Smith, 261. Leidy v. Messinger, 21 P. F. Smith, 177. Rule absolute. C. P. No. 4. May 1. CUMMINGS et al. v. BLEIM et al. Affidavit of defence-Mechanic's lien— Want of definiteness in allegation of payment. Rule for judgment for want of a sufficient affidavit of defence. This was an action of scire facias on a mechanic's lien filed against twenty-two houses. The affidavit was as follows: "Deponent (Bleim) has paid on account of the claim the sum of two hundred and thirty-nine dollars, leaving only the sum of four hundred and seventy-eight dollars and 25 due and unpaid thereon. Patrick Smith, for the rule, argued that the affidavit should state upon what particular houses included in the lien the money was paid. A. Thompson, contra. THE COURT ordered a supplemental affidavit. C. P. No. 4. MIDDLETON v. MORRIS. May 1. Affidavit of defence-Sufficiency of charge in book entries. Rule for judgment for want of a sufficient affidavit of defence." This was an action of assumpsit on a promissory note and on a book account. There was nothing in the affidavit regarding the note. The book account was as follows: YERKES V. MOONEY. C. P. No. 4. May 22. Practice-Lost note - Indemnity required before issue of execution on judgment in a suit founded thereon. Rule to restrain the plaintiff from issuing execution, etc. This suit was brought on a promissory note for $245, made by the defendant to the order of the plaintiff. Upon the trial it was proved that the note, not having been indorsed, had been lost before maturity. There was a verdict for the plaintiff upon which fudgment was afterwards entered. tiff should be compelled to give a bond of indemnity W. D. Gregory, for the rule, asked that the plainbefore issuing execution. and cited This was an action of scire facias on a mechanic's lien. In this case a supplemental affidavit had been ordered. The original affidavit made by the owner of the premises set forth the fact of the ownership; that deponent had employed Doyle to erect messuage on the deponent's lot, under an agreement providing that Doyle should furnish the materials for which the lien was filed; that Doyle was to be paid in cellar digging and stonemason work, the deponent being by trade a cellar digger and stonemason; "no money was to be paid, but the entire job was a trade operation;" that at the time the work was begun Doyle was indebted to the deponent; that deponent, at the time of filing the affidavit, was indebted to Doyle in the sum of not more than $150, payable as aforesaid; that he had always been, and was then, ready to pay in said work; that the market cost of the work and materials for which compensa Q. S. tion was claimed by the plaintiffs, who were sub-contractors, was but $353 15, less 5 per cent. The supplemental affidavit set forth that the plaintiffs had made au overcharge of $43.24, and that the deponent could readily have obtained the same work and material at that reduction, with a further reduction of 5 per cent. for cash. Ridings, for rule. A. Thompson, contra. Judgment for the amount claimed, less $43.24. Keyes's Appeal, 15 P. F. Smith, 198. had not been indorsed the plaintiff should not be THE COURT ordered the plaintiff to give a bond in the sum of $300. TENTH STREET. Road Law-Consequential damages. May 8. Street, and awarded damages 'o one Dyer as follows. The jury had found in favor of opening Tenth (Dyer's house and lot were situated above the level of the street.) 1. For a small piece of ground actually taken 2. For the damage to the remainder of $300 00 300 00 1900 00 3. For damage arising from the removal Green v. Borough of Reading, 9 W. 382. E Penna. R. R. Co. v. Hiester, 4 Wr. 53. C. A. V. May 22. THE COURT said there was doubt under the evidence whether Dyer built his house before or after the grade was changed; but even in the former case he had his proper remedy by proceeding for |
