In the matter of the accounting of J. C. Hill, trustee under the will of F. R. Weed, deceased. Appeal by certain creditors from the allowance of his accounts. Affirmed.

C. La Rue Munson, Addison Candor, Rodney A. Mercur, and W. D. Crocker, for appellants. John J. Reardon and John G. Reading, Jr., for appellee.

MCCOLLUM, J. The learned auditor thought, and so held, that he was not at liberty to set aside or qualify the order of the court of common pleas fixing the compensation of counsel for services rendered in the interest of the estate, and authorizing the payment of the same by the trustee. He also held that no sufficient reason appeared for relieving the creditors whose action made necessary the litigation in which the services were rendered from paying in proportion of the allowance. In these rulings he was sustained by the learned court below, and the question on this appeal is whether he erred in making them.

amount of property to be used and applied, in accordance with the trust, for the benefit of all the creditors. Why should not the expenses incurred in achieving this result be paid out of the common fund, without discrimination between the parties entitled to it? What equity have the parties who were baffled in their effort to obtain more than their share of the estate to demand discrimination in their favor? We have failed to discover any. It was their greed for more than they were entitled to under the trust that made the expenses necessary, and it seems to us that under the circumstances they ought not to complain that the burden of paying them is laid on the common fund. It is argued, however, that they were losers by the litigation, and therefore they are not within the rule recognized and enforced in Trustees v. Greenough, 105 U. S. 527, and kindred cases. But in what sense were they losers? In the same that he is a loser who fails to acquire what he has no rights to, or who, having unlawfully obtained possession of the property of another, is com

ments and decrees of the court that appointed him is somewhat novel, and we are not therefore surprised that the learned counsel for the appellants have failed to bring to our notice any authority for it. They have referred us to article 5 of the amendment of the constitution of the United States, and to section 11 of article 1 of the constitution of Pennsylvania, but these do not throw light upon or define the powers of the auditor in the case before us. His powers were derived from and measured by his appointment, and we think he evidenced a proper understanding and appreciation of them, in declining to receive evidence offered for the purpose of modifying or setting aside the decree under which the accountant made the payment excepted to.

The services for which the allowance was made were rendered in a litigation instituted by the general or unsecured creditors to set aside a certain conveyance made and certain judgments confessed by the trustee for the purpose of giving a preference to certain other creditors of the estate. When the attempt was made to prefer some creditors to the exclusion of others having equal rights and equities, the estate and the trustee were insolvent. The creditors for whose benefit the transaction was intended, having knowledge of the purpose of it, accepted the conveyance and judgments, and stubbornly resisted the efforts of the unsecured or excluded creditors to have them annulled. For more specific information in regard to the nature and details of the transaction, and the circumstances surrounding it, we refer to Woddrop v. Weed, 154 Pa. St. 307, 26 Atl. 375, and Young v. Weed, 154 Pa. St. 316, 26 Atl. 420. It will there be seen that the litigation resulted in a victory for the unsecured creditors, which restored to the estate a large v.30A.no.6-18

ty which the wrongdoer has in consequence of such a loss is not easily discoverable. If the allowance in this case was for services in a suit to recover the trust property from a stranger who had unlawfully taken it into his possession, there could be no doubt that equity would require that it should be paid from the trust fund. The fact that the wrongdoers were creditors of the estate ought not to shift the burden from the trust fund to that portion of it which the creditors were entitled to receive on pro rata distribution of it. In either case the services were for the benefit of the estate, and it should pay for them. The specifications of error are overruled. Decree affirmed and appeal dismissed at the costs of the appellants.

PAINE v. KINDRED. (Supreme Court of Pennsylvania. Oct. 1, 1894.)

RULE FOR JUDGMENT-DISCHARGE-REVIEW.

Where the facts set forth in an affidavit of defense present a doubtful case, an order discharging a rule for judgment, for want of a sufficient affidavit of defense, will not be disturbed on appeal.

Appeal from court of common pleas, Philadelphia county.

Action by Paine against Kindred. Plaintiff obtained a rule for judgment for want of a sufficient affidavit of defense, and, from an order discharging the rule, appeals. firmed.

A. H. Wintersteen and Geo. Tucker Bispham, for appellant. C. Oscar Beasley, for appellee.

GREEN, J. In this case judgment was refused in the court below, on a motion for

judgment, for want of a sufficient affidavit of defense. Upon the facts set forth in the affidavits, a very close case is presented, which is altogether too doubtful in its character to justify us in interfering with the court below in its action. In Insurance Co. v. Confer, 158 Pa. St. 604, 28 Atl. 153, we said: "It must be a very plain case of error in law if we sustain appeals in such cases as this from the decree of the common pleas discharging the rule. The decree being interlocutory, no injury can result to the complaining suitor other than delay of final judgment. Besides, it is doubtful whether the act of assembly authorizing these appeals has not on the whole aggravated delay. The observations of this court in Griffith v. Sitgreaves, 81 Pa. St. 378, and Radcliffe v. Herbst, 135 Pa. St. 568, 19 Atl. 1029, are pointedly applicable in the case before us." These remarks are very pertinent in the consideration of the present case. Whether the case will ultimately present a question of accord and satisfaction, or a mere question of a verbal contract for the sale of lands, without the payment of any purchase money, or taking possession, or making improvements, or of a trust of the title in the defendant at the instance of the plaintiff, may depend upon nice shades of testimony, upon the credibility of witnesses, or upon facts and circumstances which cannot now be foreseen, and which may be quite potential in determining the result. Such possibilities are entirely within the scope of the facts set out in the affidavits of defense. We do not mean to interfere, where rules for judgment have been discharged in the lower courts, in doubtful and uncertain cases, but only in such as are very clear and free of doubt, as we have frequently said: Judgment affirmed.

ENSIGN et al. v. KINDRED. (Supreme Court of Pennsylvania. Oct. 1, 1894.)

FOREIGN JUDGMENT-CERTIFICATE OF DEPUTY. The certificate of the clerk of the court in which a foreign judgment was rendered is defective if made by a deputy.

Appeal from court of common pleas, Philadelphia county.

Assumpsit by Ensign & Cash, for the use of Paine, against Kindred. Plaintiffs obtained a rule for judgment, for want of a sufficient affidavit of defense, and, from an order discharging the rule, appeal. Affirmed.

A. H. Wintersteen and Geo. Tucker Bispham, for appellants. C. Oscar Beasley, for appellee.

GREEN, J. This was an action of assumpsit upon a foreign judgment. The copy of the record annexed to the plaintiff's claim discloses that the certificate of the clerk of the court in which the judgment was obtained was made, not by the clerk, but by his

deputy; and it is contended this is not a proper certificate. In the case of Lothrop v. Blake, 3 Pa. St. 483, we held that such a certificate is invalid, and will not entitle the record to admission in evidence. Rogers, J., in delivering the opinion, said: "The clerk, also, who certifies the record, must be the clerk himself or his successor. The certificate of his underclerk, in his absence, or of the clerk of any other tribunal, office, or body, is held incompetent for the purpose. See Sampson v. Overton, 4 Bibb, 409, and Greenl. Ev. 506, and the authorities there cited." As this defect appears on the face of the plaintiffs' statement, and prima facie defeats the record of the foreign judgment as the basis of an action, it follows that the judgment of the court below must be sustained. Judgment affirmed.

JURY COMMISSION-OATH-JURY WHEEL-QUASHING THE ARRAY.

1. Though Act April 10, 1867, regulating the drawing of juries, provides that the oath of the jury commissioners shall be the one required of the sheriff and county commissioners under Act 1834, § 87, the fact that the oath by the commissioners was merely to faithfully fill the jury wheel, in performance of their official duties, is not ground for reversal, where appellant knew of the irregularity at the time of the application for a continuance, but did not file his motion to quash the array until four months later, when the case was called for trial. 2. Under Act April 10, 1867, regulating the drawing of jurors, the president judge need not take an additional oath, in writing, before entering on his duties under the act.

3. Under Act April 10, 1867, providing that the jury wheel shall be kept in the custody of the commissioners, the array will not be quashed because one of the commissioners, resident some miles from the county seat, by agreement between them, took the wheel, and kept it at his home.

Appeal from court of common pleas, Berks county; G. A. Endlich and James N. Ermentrout, Judges.

Action by Francis P. Klemmer against the Mt. Penn Gravity Railroad Company for personal injuries. There was a judgment for plaintiff, from which defendant appeals. Affirmed.

Baer & Snyder and Henry A. Muhlenberg, for appellant. Rieser & Schaffer, for appellee.

DEAN, J. Francis P. Klemmer, the plaintiff, on the 5th of November, 1891, while a passenger on the Mt. Penn Gravity Railroad, near Reading, was very seriously and probably permanently injured. The train, consisting of two cars, was running down the incline by gravity, when, from some cause, the brakeman lost control of the brakes. The consequence was the cars jumped the track, and were wrecked. Klemmer, aver

ring negligence on part of the company, brought suit for damages. The issue was tried before Judge Endlich, who, in a brief but very clear and impartial charge, submitted the evidence bearing on the questions of negligence and the measure of damages to the jury. There was a verdict for plaintiff in the sum of $4,000. Although defendant submitted four written prayers to the court for instructions, three of which were denied, no exceptions were taken to the charge, and there is no assignment of error to any of the rulings of the court after the jury was sworn. Before the jury was sworn, however, defendant's counsel challenged the array of jurors, and moved to quash the same, because of alleged gross irregularities in filling the wheel, under the act of 1867 and its supplements. The motion to quash failed, because of an equally divided court, divided in opinion on some questions of law, but, irreconcilably, on some of the most material facts to which the law applied; and, to make the questions of fact impossible of decision here, the two most important of them rest on the personal knowledge of the two judges, as set forth in their respective antagonistic opinions. After the motion was overruled, Judge Endlich first filed an opinion, giving his reasons why the motion ought to have prevailed, and in this he states, as within his knowledge, facts on which his opinion is largely based. Then Judge Ermentrout filed an opinion, overruling the motion to quash, in which he makes a statement of facts within his knowledge in direct conflict with those stated by Judge Endlich. Then Judge Endlich filed another opinion, in reply; and Judge Ermentrout another brief one, in reply to this. These opinions, in some of their features, would hardly be called "judicial," for both contain, at least, imputations of unseemly conduct by each against the other in the performance of judicial functions. Harmony between members of the same court, and cordial co-operation in a dignified judicial administration of justice, are highly desirable; but the personal bearing of members of a court towards each other is not a question which concerns us in a judicial review of their judgments. That is a matter which more nearly concerns the bar, and the people of their own district, unless, indeed, as to some extent in this case, personal asperity in the court below has so beclouded fact as to render judgment impossible or doubtful.

Our conclusions as to the law applicable to the facts would present no serious difficulty if the learned judges concurred as to the facts; but they radically differ. For example, the first reason in the motion to quash is that under the act of 1874 (a supplement to the act of 1867) no list containing the name, occupation, and residence of each juror, etc., was filed in the office of the prothonotary. Judge Endlich states no such list was filed as required by law. Judge Ermentrout states

this list, substantially, in all particulars, as required by the act, was made out and certified, and, although not formally marked "Filed" by the prothonotary before the motion to quash, it had been deposited in, and the seal of the court affixed in, the prothonotary's office; was used by the sheriff and the court as a document of the court, and as the list intended by the act for the prothonotary's office. This list ought to be formally filed in the office of the prothonotary, and ought to remain there; but if made out according to the requirements of the act, and put in possession of the prothonotary, although afterwards taken to the sheriff's office, and for most of the time kept there, this is not such a gross irregularity as calls for quashing the array; especially if the court and all parties interested had access to it. If no list as required was made out at all, it would be sufficient ground to quash. Judge Endlich states this list referred to by Judge Ermentrout was nothing but the sheriff's book of names, which the act of 1834 required him to keep, and in no sense the list of names placed in the wheel, which the judge and jury commissioners were required to certify under the supplement to the act of 1867. Judge Ermentrout states, as within his knowledge, it was made out and certified by himself and the jury commissioners; the seal of the court attached in the prothonotary's office, and repeatedly laid before the court, when required in conducting the business of the court. What purports to be a copy of this list, with heading and certificates, and 22 names of the 1,200 put in the wheel for 1893, is printed in appellee's paper book. If such list as this was made out and deposited in the prothonotary's office, that was a substantial compliance with the requirements of section 3 of act of 1874; and although it ought to have been marked "Filed of record," and ought to have been kept at all times thereafter as one of the records of the prothonotary's office, still, as there is no intimation that it was ever tampered with or concealed, the irregularity is not of that gravity as, at this stage of the trial, warrants this court in sustaining the motion to quash.

Again, the seventh reason on which the motion is grounded is that the jury commissioners and president judge did not select alternately, from the whole qualified electors of the county, such number of sober, intelligent, and judicious persons for the year as the court at the preceding term had designated. We decidedly concur with Judge Endlich that this is by far the gravest of all the objections urged in the motion to quash. The primary object of the act of 1867 in taking from the sheriff and county commissioners the duty of filling the jury wheel, and providing for the election of jury commissioners, who, with the president or additional law judge, should perform that duty, was to guard against unjust political

prejudice in the selection of jurors. Before the adoption of the constitution of 1873, the board of county commissioners and sheriff in any one county, generally, all belonged to the same political party. Complaints were made by the minority party in many of the counties of political partiality in filling the wheel. The legislature, on the assumption that this evil existed, created the office of jury commissioners, and provided for representation of the minority, and, further, prescribed a method of filling the wheel, which was intended to remedy the evil complained of under the act of 1834. The importance of this office to the people of the commonwealth can scarcely be exaggerated; nor can there be any difference of opinion as to the absolute necessity of requiring strict fidelity to duty in those who hold it. As to the manner in which the commissioners and president judge performed this duty, Judge Endlich says: "When the board met, each member had a list prepared in advance, partly from his own knowledge, but largely from suggestions received from others. Some of these suggestions were voluntarily offered by friends or acquaintances,-persons who desired to do jury service, or whose friends desired to do so. Many of them, however, were procured by a system of inviting persons of acknowledged prominence, politically or otherwise, in the various wards, boroughs, and townships of the county, to hand in the names of a certain number of persons living in their districts for the purpose of filling the jury wheel. From the names thus handed in, the lists referred to were largely compiled. From these lists, the several members of the board alternated in calling off the names, which were placed in the wheel. The list of the 'whole qualified electors' of the county, though readily obtainable, was never before the board, or before any member of it." As to the facts thus stated, of such controlling importance in the disposition of this motion, notice the statement of Judge Ermentrout in his opinion: "Where, I ask, are any such facts of record in this case? They could not have been admitted last May or June, because the record was not filed until October 16, 1893. These facts are neither admitted nor proven, nor capable of being proven. At no time did the jury commissioners have a prepared list from which all the jurors were selected. Each jury commissioner, for himself, without dictation or suggestion from his fellow commissioner or the president judge, invariably made his own selection. No jurors were selected concurrently. Each of the three, acting independently of the other, made his own selection of each individual juror alternately; that is, one after another. None knew, or permitted each other to know, of the selection each one made, until publicly announced and placed in the jury wheel. All were thus honestly selected in the interest of no one, in the interest of neither clique nor faction, politi

cal or social, but with the sole desire to place in the jury wheel sober, honest, intelligent jurors, who, in a community composed largely of German-speaking people and other mixed nationalities, could understand the English language."

The duty of the jury commissioners and president judge was to "select alternately from the whole qualified electors of the county" the names of 1,200 "sober, intelligent, and judicious persons," and place these names in the jury wheel. At the last presidential election very nearly 29,000 qualified electors voted in Berks county. It is not improbable there are in the county 30,000. As 1,200 names were ordered to be put in the wheel, about one man was wanted out of every 25 for jury service. Any one will readily understand the duty of the board in such a populous county was no light one. To eliminate the aged, decrepit, ignorant, intemperate, and those who did not understand the English language, and then select from the large number of competent persons remaining 1,200, could only be done by careful inquiry, thought, and preparation beforehand. There is not probably in the county a single person qualified from his own knowledge to do this. His ability to select must, in large degree, come from information derived from others. That the members of the board made private lists, prepared by themselves beforehand, of "sober, intelligent, and judicious persons," proves nothing more than that they sought, by inquiry, to qualify themselves for a proper performance of their duty. If they had taken up the lists of the voters in the different districts, and at once made selections from nearly 30,000 names thereon, unless they were men thoroughly acquainted with the voters of every precinct, and of phenomenal memory, they would have been wholly incapable of performing the duty as the law enjoined. If they filled the wheel from lists prepared by others, no matter by whom, it was a gross violation of duty; but if they made up lists of sober, intelligent, and judicious persons themselves, on their own judgment, although on information obtained from others, this was the only way, in very many cases, that they could intelligently perform their duty. The act does not require that they shall take up the list of the whole qualified electors, and alternately select therefrom, but that the selection shall be made "from the whole qualified electors;" that is, the selection shall not be made from a part, such as one political party, the members of one church or one faction, but from the whole, without distinction of party, creed, race, social or family relation. The fact as stated by Judge Endlich is that the lists were made up by political and personal favor, from the selection of others. As stated by Judge Ermentrout, they were selections honestly made, on the judgment of the commissioners. We take the record before us, as it stood on the 16th of October, 1893, when

the motion to quash was overruled, and the facts as gathered from the opinions of the judges filed on the motion to quash. After the final decree, and after the writ out of this court was served, further evidence was taken; but we must review judgments in the light of the evidence on which they are founded, and not on evidence adduced afterwards. The time to try a cause is when it is at issue, and for trial, and not after the issue has been closed by final decree or judgment. If the facts were clear that this jury wheel had been filled by selections made by political and personal friends of the board, we would not hesitate a minute in sustaining the motion to quash and in reversing the judgment. We would do this even though, as to irregularities of less gravity, appellant might be treated as having waived them. One of this character no consent or waiver of parties could cure. It effectually undermines the foundation of the administration of justice. That sworn officers, intrusted with the performance of the highest duty, one on which hinge the life, liberty, and property of the citizen, should to any extent surrender their functions to personal and political friends, as stated by Judge Endlich, could not be tolerated for a moment in any court, even though the parties affected by it were willing to condone the wrong. But here we are met by a flat contradiction as to the fact, with no other means of determining it than by passing on the truthfulness of two judges, with nothing but their antagonistic attitude on this record to affect the credibility of either; and their imputations are not unevenly balanced. As the appellant did not. see proper to take testimony prior to his motion to quash, to sustain it, or to have placed on record any agreement as to the facts, it is not our duty to supply the facts from contradictory statements of members of the court who passed on the motion, and we can only treat the first and seventh reasons as based on facts alleged, denied, and not proven.

The second and third reasons, which allege the oath was not reduced to writing and filed as required by law, in substance raise the same question referred to in the first. The oath was attached to and formed part of the same book or paper containing the list of names placed in the wheel; so these reasons require no further notice.

The fourth alleges the form of the oath was not that required by the statute. The oath taken was as follows: "We, J. A. Spangler and David Brown, jury commissioners in and for the said county of Berks, do severally swear that we will faithfully fill the jury wheel, in performance of our duties of our office, pursuant to the provisions of the act of assembly of the tenth day of April, 1867, entitled 'An act for the better and more impartial selection of persons to serve as jurors in each of the counties of the commonwealth.'" The oath prescribed by the act of

1867 is the one enjoined by section 87 of the act of 1834 to be taken by the sheriff and county commissioners. The form of that oath, as given in the act, is: "You and each of you do swear that you will use your utmost endeavors and diligence in making an impartial selection of competent persons for jurors during the ensuing year, and that you will not suffer partiality, favor, affection, hatred, malice or ill-will in any case or respect whatever, to influence you in the selecting, drawing or returning of jurors; but that you will in all respects honestly conform to the true intent and meaning of the acts of assembly in such case made and provided." It is clear, as held by Judge Endlich, that this is the oath the jury commissioners should take before proceeding to fill the wheel, and the one, with some modification, the sheriff should take before drawing from the wheel. This was, in effect, decided in Campbell v. Com., 84 Pa. St. 187. That the words "make an impartial selection of competent persons" cannot, under the duty imposed on the sheriff by the act of 1867, apply to him, as now he has nothing to do with the selection, is not important. In the oath taken by him, that part having no, reference to his duties can be eliminated. Both the jury commissioners and sheriff, when they entered upon the duties of their respective offices, had taken the oath prescribed for county officers by the constitution of 1874; that is, to discharge the duties of their offices with fidelity. Then each took an oath to faithfully fill the jury wheel in performance of the duties of their office pursuant to the provisions of the act of 1867. As the act of 1867 referred to the act of 1834, and as the duties of the commissioners, as specified in that act, were in the form of an oath, it might fairly be implied the commissioners were sworn to perform these duties, and so understood it; and while the oath written out and filed should have been that prescribed in the act of 1834, so modified in the case of the sheriff as to cover his duties under the act of 1867, the irregularity is not of that character, in view of all that occurred at this trial, as warrants us in holding it fatal. We do not desire to be understood, however, as in the remotest degree approving the omission to take and subscribe the oath enjoined by the act of 1867, the form of which is given in the act of 1834. While such an irregularity as is set out in the seventh is sufficient reason for quashing at any time whenever the fact of it is established to the satisfaction of the court, that set out in the fourth reason, while serious enough to move the court to quash when the objection is promptly urged, is not of that character which would warrant this court in reversing a judgment, if it were not made promptly when the party was informed of it. The appellant's counsel knew of this irregularity January 7, 1893, but, without objecting to it then, made a successful application for a continuance; then, on the 1st of