dence as would have been proper had the plaintiff entered without right and made the repairs against the will of the defendant. In other words the defendant was allowed to prove the entire extent of the interference with his business by the repairs, and the entire loss sustained by him, instead of confining the inquiry to the damages caused by the delay. This was calculated to mislead the jury, and even if cured to some extent by the charge of the court, yet the whole matter was so hopelessly blended together by the evidence that it would require a jury of more than average intelligence to arrive at an accurate conclusion. Indeed, if it be conceded that there was needless delay, and a defense to that extent, it is not too much to say that there is not sufficient evidence in the case to base an intelligent verdict upon. The testimony in regard to the delay is extremely vague and unsatisfactory. Two or three witnesses do speak of the repairs being unnecessarily delayed. Their opinion, however, was based upon the fact that there were days when no workmen were at the building. But they were not experts, not even mechanics, and they do not even venture to say whether the delay was for a week or for a month. No competent builder who had inspected the buiding when the repairs were going on or after it was completed, was called to testify that the work was unreasonably delayed.

The third and fourth assignments are also sustained. The learned judge refused to admit the evidence referred to in these specifications, for the purpose of varying the written contract. Thus far he was right, as there was neither allegation nor proof of fraud, accident or mistake. But he did admit it as evidence of the time necessary to complete the repairs. In this he was as clearly wrong. The evidence did not come up to the measure of such proof. It was merely the opinion of the plaintiff that the repairs could be completed within three weeks. But being a mere opinion he refused to bind himself to complete them within that time. The evidence shows that the opinion was a mistaken one. The repairs were found to be more extended than was anticipated. The building was in a dangerous condition; it had swayed laterally; it was necessary to take out the old girders and columns and replace them with new ones of iron, and to take out several floors more than was contemplated, and replace them with new ones. If it had been important to show that at the time of the agreement the plaintiff believed the repairs could be done in three weeks, the evidence would have been proper. But it was not important to do so nor would it have been relevant. It would have

thrown no light upon the question of unnecessary delay.

The affidavit referred to in the fifth specification was properly admitted. That it was not made by the plaintiff, but by his agent, may weaken the effect of it with the jury. But it was made for the plaintiff presumably with his knowledge, and he has had the benefit of it. If it served him a good turn there I see no reason why it should not be used against him here. It was not the mere affidavit of one who could be called as a witness; it was a defense set up by the plaintiff to a suit against him by the contractor for these very repairs. Judgment reversed and a venire facias de novo awarded.

WINGERD v. FALLON.

A husband confessed judgment to a trustee in favor of his own wife, for money borrowed of her father, and which, after the father's death, had been assigned to her by his administrator on account af her distributive share. Included within the amount of the judg ment was a note which had not been so assigned, but payment of which had been assumed by the wife, she agreeing with the other distributees that it should be deducted from her share.

Held, that as respects other creditors of the husband, her claim was good to the full amount of the judgment.

Error to the Court of Common Pleas of Franklin county.

The narr. was in assumpsit in the usual form on a wager, and tendered three issues: First, whether, on the 24th day of February, 1879, when Adam B. Wingerd confessed this judgment to John Stewart, Esq., in trust for his wife, Virginia C. Wingerd, for $10,000, entered to No. 1 April Term, 1879, of the Court of Common Pleas of Franklin county, he was in fact indebted to the said Virginia in the sum of $10,000. Second, whether the said judgment was confessed by the said Adam B. Wingerd, and was accepted and entered in the Court of Common Pleas aforesaid, by the said Virginia C. Wingerd by collusion, with intent to delay, hinder or defraud the creditors of the said A. B. Wingerd of their just and lawful debts, and actions. Third, whether the said judgment was held, kept on foot and used by the said Virginia C. Wingerd, in collusion with said Adam B. Wingerd, with intent to hinder, delay and defraud the creditors of the said Adam B. Wingerd of their just and lawful debts and actions. The jury found for the plaintiff on all the issues, and on the first issue, they found specially that "the said A. B. Wingerd was indebted to the said Virginia C. Wingerd in the sum of $7,700 at the time of the giving of the said judgment."

Judgment was entered on the verdict against

the defendant, whereupon this appeal was taken, counsel assigning for error:

1. Refusing to affirm the defendant's second point. "Even if the jury should believe that the receipt of the $2,300 on the 25th of June, 1869, by Mr. Wingerd from Mr. Motter was a loan to him, and not an advancement to his wife; still, if the jury further believe, that subsequent to the death of Mr. Motter, at a meeting in November, 1878, for settlement of the distribution on the final administration account, the widow and all the children of the deceased were pesent, and that they were all at the time of full age, and that it was there agreed by the widow and all the children, that the note of $2,300 should not be collected from Mr. Wingerd, but that it should be treated as an advancement to his wife, and deducted from her share of the real estate when sold, and that Mr. and Mrs. Wingerd both acquiessed in and assented to this arrangement, such a family arrangement would be good in law, and operate to convert the note into an advancement."

2. Refusing to affirm the defendant's fourth point: "If the jury believe from the evidence that Mr. Wingerd actually received the $2,300 from Mr. Motter on the 25th of June, 1869, and used it for his own purpose, and it was understood at the time between Mr. Motter and Mr. Wingerd and his wife, that it was to be an advancement to her, in anticipation of her share of her father's estate, or if, by the family arrangement, referred to in the second point, (if | the jury believe such family arrangement was in fact made), the note was converted into an advancement, then Mr. Wingerd could lawfully embrace this sum in the judgment, together | with interest thereon from the 25th of June, 1869, if the jury believe he at that time agreed to pay his wife interest on the money."

3. Refusing to affirm the defendant's fifth point: "Even if the note of $2,300 is to be treated as a debt of Mr. Wingerd, and not an advancement to his wife, yet if the jury believe from the evidence that at the meeting of the widow and children in November, 1878, on the occa

sion of the settlement of the final distribution of the personal estate, Mrs. Wingerd assumed the payment of the $2,300, and agreed that it should be taken off her share of the real estate, and the widow and all the children assented to this arrangement, and, in consequence thereof, the matter was permitted to rest in that way until the present time, and no steps were taken by the administrator of Mr. Motter to collect the note from Mr. Wingerd, such arrangement by Mrs Wingerd, if her husband actually received the money, and the claim was an honest one, would create a moral obligation on her part to

pay it, and the amount might be legally embraced in the judgment given to her by her husband. Her coverture is a personal privilege, which she may waive. She is not bound to avail herself of it for the benefit of her husband's creditors."

4. Charging the jury: "If it was a debt at the death of Mr. Motter, I see nothing in the evidence to make it anything else, or to make Mrs. Wingerd entitled to it now as creditor. The agreement of the heirs that it should stand over and be deducted from the realty could not have that effect, nor would such arrangement by the administrator."

5. Refusing to affirm the defendant's eighth point: "There is no evidence at all to sustain the second and third issues made up by the pleadings."

6. Charging the jury: "The other two issues raise the question of collusion and fraud. If Mrs. Wingerd took this judgment with intent to delay or fraud creditors, or if she used it by issuing execution on it, with the same intent, you ought to find the fact. But if this judgment is upon a full consideration, if Mr. Wingerd actually and honestly owed his wife the sum of $10,000, then I see no evidence at all of fraud. If there are some elements of her claim not established by the clear and satisfactory evidence which the law demands that she shall produce, so that you find her judgment must be reduced in amount, as for instance, the $445 note, or the $300.44, or both, but if you are, nevertheless, of opinion that she was actuated by no fraudulent purpose in taking it for the sum she did, then you would not find the fraud. But if she took it for a much larger sum than was just, for $2,300, or interest, $1,300, or both, and under such circumstances as that she must have so known, that it self, or in connection with the haste in execution would show the fraud, and in such case you ought to find that issue for plaintiff."

For plaintiff in error, defendant below Messrs. Kennedy & Stewart, J. McD. Sharpe. Contra, Messrs. Stenger & McKnight, Brewer & Winger.

Opinion by PAXSON, J. Filed June 23, 1880.

This was a feigned issue to test the validity of a judgment of $10,000 confessed by Adam B. Wingerd in favor of John Stewart, Esq., as trustee for Virginia C. Wingerd, wife of the said Adam B. Wingerd, and the defendant in the feigned issue. The jury found for the plaintiff upon all the issues, with this special finding, however, as to the first: "That the said A. B. Wingerd was indebted to the said Virginia C. Wingerd in the sum of $7,700 at the time of the giving of the said judgment.”

ware, horses, wagons, etc., including the property involved in the issue now trying; a sale was made of these goods levied on, on the 31st day of December, 1877, by the sheriff, and the bulk thereof was purchased by David Kline, the plaintiff in the said execution, for about $1,337.69.

That after Kline thus became the purchaser of said property he did not remove the same from the possession of the said defendants (Miller Brothers) in the execution, but entered into the following agreement, to wit:

Opinion by PAXSON, J. Filed June 8, 1880. The single assignment of error here is, that the court below erred in entering judgment for the defendant upon the special verdict.

It is not disputed that the sheriff's sale passed a good title to the personal property in controversy to Kline, the purchaser at said sale. His right to leave it with the defendants in the execution is equally clear: Myers v. Harvey, 2 P. & W., 478; Craig's Appeal, 27 P. F. S., 448, and Maynes v. Atwater, 7 Norris, 496. The judgment upon which the property was sold was confessed to Kline to secure his own debt and sundry other debts due by the Miller Brothers, the defendants in said judgment. Kline bought the property to protect himself and the others. As to them he was a trustee. After sell

That afterwards ware came down some, and they (the mother and wives) agreed with the Miller Brothers to take the rest in property, if it was sold for gain, it was their gain, and if there was a loss it was their loss.

6. That the Miller Brothers did thus retain the property, used it and did sell sufficient in amount to pay Kline between $600 and $700, or in the neighborhood of $600 or $700, so that Kline is not yet paid in full.

No money has been paid to Myers, and none has been paid to Horting.

7. That the property in dispute is a part of the property sold under the Kline judgment and execution, bought by Kline, and left with the defendants in the writ, the Miller Brothers, under the agreement, terms and conditions, specified in section 5 of this verdict, and was levied on by the defendant on his execution, No. 37 October Term, 1878.

8. We find that the debts claimed by Kline, Myers, Horting, Frank, the mother and the wives of the Miller Brothers, were just, due and owing.

9. That under these facts we are ignorant whether the arrangements made between Kline, the purchaser of the property, and the Miller Brothers, as set out in section 5 of this verdict, | was in law a bailment, which would protect the same from levy and sale on a subsequent execution, or a sale which reinvested the Miller Brothers with the title thereto, and thus make it liable to subsequent levy and sale; if a bailment, we find for the plaintiff'; and if a sale, we find for the defendant.

county and left the remainder in the hands of the Miller Brothers under an agreement that they should sell the same and apply the proceeds first, to the payment of Kline's claim; second, to the claim of Horting; and lastly, to the claim of the mother and the wives of the Miller Brothers. The special verdict finds the further fact: "That afterwards ware came down some, and they (the mother and wives) agreed with the Miller Brothers to take the rest in property; if it was sold for gain, it was their gain, and if there was a loss it was their loss."

The effect of this arrangement was to make Miller Brothers the agent of Kline, the trustee, to sell the property and apply the proceeds in accordance with the trust. It passed no title to Miller Brothers. They could sell and deliver, and in doing so make good title, but it was the title of Kline, the trustee, for whom they acted as agent. There was no interest or profit reserved to them in the transaction, in which respect the case differs essentially from Dick v. Cooper, 12 Harris, 217, relied upon by the court below. Nor is Hertzman v. Divil, 1 Jones, 264, in point. There property of a perishable character was left with the defendant in the execution for his consumption, to be returned in kind, and not the same property. Here no portion of the property was to be retained by the Miller Brothers. They had no interest in it whatever. The balance, after paying the claim of Kline and Horting, was to go to the mother and wives. We need not discuss the position assumed by the court below, that Miller Brothers could not sell the property to their wives, for the reason that such a transaction would be against public policy. No such point is involved in the case.

Contra, W. A. Sponsler, Esq.

them, but to Kline, the trustee. As his agent, Miller Brothers had the right to turn over the

We are of opinion that the agreement between Kline and Miller Brothers was a bailment, and that it was error to enter judgment below for the defendant.

The judgment is reversed, and judgment is now entered for the plaintiff upon the special verdict.

HARNER'S APPEAL.

Where an assignment of a judgment is not marked upon the record, it is not a person's duty to make inquiries about secret equities of which he has no knowledge.

fell into the error of supposing it to be Harner's duty to make inquiry of the First National Bank, the appellee, as to its claims to the old judgment; but as that bank had, in fact, no assignment of that judgment marked on the record, it was certainly not Harner's duty to make inquiries about secret equities of which he had no knowledge. There was the satisfaction regularly marked upon the docket, and so marked by the authority one, who prima facie, had full power so to do. This was all Harner was required to look to; it was not his business to inquire about rights and equities to which he was not a party, and of which he had no knowledge;

Opinion by GORDON, J. Fled June 21, 1880. The original Lykens Valley Bank, to which Bickel executed the judgment, which forms the subject of the present controversy, as collateral security for certain notes which it discounted for him, was a partnership, and of this partnership Brubacker was not only a member, but President. Prima facie, therefore, he, as agent of this association, had full power either to assign or satisfy this judgment: Dubois' Appeal, 2 Wr., 231. Harner's judgment, in amount $3,000, was entered on the 30th of August, 1875, and had been executed in September, 1874. The consideration therefor was an account owing by Bickel to Harner, amounting to $560, and Harner's note for $2,250, payable as soon as payment might be required after the Lykens Valley Bank judgment should be satisfied, but not before. This note, as appears from the auditor's report, was fully paid according to the agreement of the parties, though not until after the 11th of September, 1875, the date of the entry of the appellee's judgment. This latter circumstance, however, is of no account, since Harner's note and previous account were sufficient consideration for his judgment: Moroney's Appeal, 12 Harris, 372. Now, as soon as the judgment of the Lykens Valley Bank was satisfied, that of Harner stood first, and the appellee, finding the lien if its jugment thus out ranked, made application to have the satisfaction, just spoken of, taken off, on the ground that that judgment belonged to it as the successor to the rights and obligations of the former Lykens Valley organization. To this proceeding Harner could not lawfully object; that was a matter for the parties themselves; they without the court's intervention, could have taken off this satisfaction; but whether taken off by themselves or by the court, the status of Bickel's judgment was not affected thereby. As to him, the satisfaction remained, and it should so have been treated by

Appeal, (not yet reported). If the appellee desired to give notice of its rights, and put the old judgment beyond the power of the partners of the original association, it should have taken an assignment and put that assignment on the docket. The duty rested with it to see to its own judgment; that it was properly presented on the record, and failing in this, it must bear the consequences of its own neglect; it cannot cast them upon one who is in no default : Ridgway, Budd & Co.'s Appeal, 3 Harris, 177. It is clear, therefore, that Harner's right to the money, now in the court below for distributiou, is superior to that of the appellee, and that the decree of the court below was erroneous.

The decree of the court below is now reversed and vacated, at the costs of the appellee, and a re-distribution is ordered according to the principles stated in the above opinion.

For appellants, Messrs. Fleming & McCarrell. For appellee, J. W. Simonton, Esq. APPEAL OF HENRY W. PATTERSON, Administrator, etc.-APPEAL OF W. W. PATRICK. Where a judgment is entered on the same day, but after the death of defendant debtor, the legal fiction of a relation does not apply, and it gains no priority of lien over the claims of general creditors.

Appeal from the decree of the Orphans' Court of Allegheny county, in re. estate of S. M. Kier. For a statement of the facts of this case and the opinion of the court below, HAWKINS, P. J., see 27 PITTSBURGH LEGAL JOURNAL, 21.

PER CURIAM. Filed November 15, 1880. We adopt the opinion of the learned judge of the court below, and affirm the decree for the reasons he has so well stated.

Decree affirmed and appeals dismissed at the the costs of the appellants.

For appellants, T. C. Lazear, Esq.

Contra, (representing exceptants), Messrs. Robb & McClung, Brown & Lambie, J. & E. L. Barton, S. W. Cuningham.