"alleged codicil was not procured by undue in- | tain that it is incumbent on the proponents of the fluence, etc.,' on the third issue. The pleadings should follow the terms of the precept. Ingersoll v. Bradford, 4 Yeates, 175. The issues should be so framed that the questions of fact shall be clearly and accurately defined. Thompson's Appeal, 12 Casey, 418. "If more than one fact be in dispute all may be certified at the same time, but each one constitutes the subject of a separate issue, though all the issues, if not too numerous and complex, may be tried together before the same jury. If tried together there must be a distinct finding upon each issue." Cobb v. Burns, 11 P. F. S., 282. will to take the laboring oar, and establish by satisfactory proof, not only due execution of the codicil, but the possession by the testator, at the time of execution, of a sound and disposing mind and memory, and that the codicil was not procured by undue influence or fraud. In the case of Boyd v. Boyd (16 P. F. S. 283), the rule laid down is, that the burden of proof is determined by the specialties of each case. Upon proof of the fact of due execution, the law presumes the possession of testamentary capacity. The plaintiff, as a general rule, is, in the first instance, required to establish no more than a prima facie case. Proof by two witnesses that the signature at the end of the instrument is the true and genuine signature of the alleged testator authorizes the submission of the paper to the In Bitner v. Bitner (15 P. F. S. 36), Judge jury, with instruction that, nothing appearing in AGNEW said: "The Register's precept in this the testimony raising a question as to the integcase sent two issues of fact to be tried, to wit:rity of the instrument, or of the testamentary the insanity of the testator and the undue influ- capacity of the party whose last will and testaence of the three sons. The defendants should ment it purports to be, they should find in favor have replied to the plaintiff's declaration so as to of the plaintiffs. raise the direct issues of fact sent to be tried." The opinion of the Supreme Court in the present case, placing the burden of proof on the proponents, necessitates the setting up of the affirmative of all the issues in the narr., and the case is not within the dictum. Robert N. Willson, for plaintiffs. The Court cannot go behind the precept of the Orphans' Court in order to frame the pleadings according to the facts of the case of which they know nothing. Does not the decision of the [THE COURT. Supreme Court come to us?] No; the testimony may be different when the case comes to trial here. The precept is formal only, as in all cases. The burden may be shifted afterward, but the proponents are not bound to do more in the pleadings than aver the execution of the will. If it does not appear in the course of the trial that the testator's mind was impaired, the burden will not be upon the proponents. This rule is clearly stated in the charge of the Court in Frew v. Clark (30 P. F. S. 175). But when, on the presentation by the plaintiffs of their own case, doubt is cast on the genuine character of the instrument, which may appear on the face of the proposed will, as if there are unattested and material interlineations or alterations; these may be in the handwriting of a stranger, and not of the draftsman of the will; they may have been made by one to his own benefit; or if it appear that the will was prepared by a party who takes a large interest under it, and that the testator was aged, feeble in body and mind at the time of execution, suffering under an attack of disease calculated to weaken or destroy testamentary capacity, or that undue influence controlled the mind and purpose of the testator in such case, as was said in Boyd v. Boyd, proof of formal execution of the will is not sufficient. The proponents of the will must go further, and the presumptions which are thus raised C. A. V. against the integrity and legality of the instruApril 8, 1882. THE COURT. The present ment must be overcome by evidence. It must contention is over the form of the issues which be shown to be the will of the alleged testator, the Orphans' Court have sent to the Court of and not the will of some other person who has Common Pleas to be tried by a jury. The first made it for him (Dean v. Negley, 5 Wright, 312). question is, whether the codicil of December 2, The same principle is recognized in Frew v. 1876, is a true and valid codicil to the will of Clark. The Court say, if the mental capacity of John L. Neill, deceased. The plaintiffs admit the testator had been impaired, if he had become that it is incumbent on them to prove the due weak from age or bodily infirmity, although not and formal execution of the instrument, but to such an extent as to destroy testamentary contend that when this shall have been done, capacity, it might have shifted the burden of they will have made out their case and that the proof, and required the proponents of the will onus of proof as to the second and third ques- to negative, by evidence, a presumption of undue tions rests on the defendants. influence. The will in that case was sustained; This is denied by the defendants, who main-the Court below and the Court above each hold ing that there was no evidence of the want of testamentary capacity in the testator. It was upon the clearest recognition of the application of these principles to this case that the Supreme Court, upon appeal from the decision of the Orphans' Court, refusing the application for an issue, sent the case back for trial, upon the several grounds on which the will is contested. The Court say, "had the only question been on the testamentary capacity of John L. Neill, there would be reason to hold that there is not sufficient evidence to justify a jury in setting aside the codicil. Had it been drawn by Neill himself, without advice and suggestion, as was the original will, it must have stood. But it cannot be disputed that there was evidence, we think enough to carry the case to a jury, that the testator was not the same man physically and intellectually when he executed the codicil, as when he made the original will. A jury might reasonably so conclude from the evidence. The onus was thrown on Yardley to prove that Neill fully understood the value of his property and the probable residue after paying all his legacies.' If there was nothing more bearing on the pending question in the case than this decision of the Supreme Court (Cuthbertson's Appeal, 1 Outerbridge, 163; S. C. 10 WEEKLY NOTES, 69); if we were not, as we think we are, controlled by the principles settled in Boyd v. Boyd and in Frew v. Clark, we should feel ourselves bound to conform to the decision of the Supreme Court as we understand it, and so frame the questions as to require the plaintiffs to maintain by evidence the affirmative of each one of these issues. It was upon an examination of the testimony that the Supreme Court have said, it is not enough that the plaintiffs rest content with proving the signature of Neill to the codicil, and hold that more must be proved by them, showing that the codicil expressed the true mind of the testator, freely exercised, and with sufficient comprehension of the value of his property and the probable residue. Without this being shown, there is no virtue inhering in the instrument. We do not feel ourselves required to conform to the view of the present question, urged upon us by the plaintiffs, that we are to look at nothing but the precept of the Orphans' Court in giving form and direction to the issues. On the contrary, we feel ourselves required to adopt the decision of the Supreme Court in this case as our rule of action; and if there had been no such instruction laid down to guide us, we think we should in some way be required to obtain such light as would enable us to act so as to determine upon whom, under the testimony taken in the cause, the onus of proof ought to rest, as to each one or all of the questions which have been sent to the Common Pleas for trial. Since this case was argued before us, and since the foregoing portion of this opinion was written, the Supreme Court, in the case of Wilson's Appeal (11 WEEKLY NOTES, 333), have again affirmed the rule laid down, as we understand it, for our direction in Cuthbertson's Appeal, supra, holding that, where the chief beneficiary was the confidential adviser of the testator, and was the main instrument in procuring the preparation and execution of the testamentary paper, he will be required to prove affirmatively the circumstances connected with the drawing and execution of it, and that the testator was laboring under no mistaken apprehension of the value of his property and the amount he was giving to his confidential adviser, and that the gift was his free and intelligent act. All this, in cases like the present one, must be first shown by proponents to entitle them to a verdict in their favor. The order as to form of the issues to be made in accordance with views herein expressed. Opinion by ALLISON, P. J. C. P. No. 2. April 22, 1882. Coxe v. Camden and Atlantic R. R. Co. Pennypacker v. The Same. Practice-Foreign corporation-Service of process-A foreign corporation may be served by leaving a true and attested copy of the summons at the dwelling house of the president with an adult member of his family. Rule to strike off service of writ. The sheriff made return upon the summons covenant as follows: Served the Camden and Atlantic Railroad Company by leaving, March 25th, 1882, a true and attested copy of the within writ at the dwelling house of Charles D. Freeman, president of said company, residing at southeast corner of Twenty-first and Chestnut streets, with an adult member of his family. Defendant filed an affidavit of C. D. Freeman, setting forth that the defendant is a corporation incorporated by the Legislature of the State of New Jersey. Dale (with him Dickson), for the rule. The Act of March 21, 1849, contemplates service upon an officer of a foreign corporation by giving him a copy in person, or by leaving a copy at the place of business. Coxe and Pennypacker, contra, cited— Grub v. Lancaster Manufacturing Co., I WEEKLY Lehigh Coal and Nav. Co. v. Lehigh Boom Co., 6 Retterly v. Howe Machine Co., 4 Id. 525. Cochran v. Library Co., 6 Phila. 492. The argument urged in Eby v. Railroad (6 | said profit, viz., $804.21; that the accountant WEEKLY NOTES, 386) would overturn the act be allowed no commissions nor counsel fees; itself. Kennard The Railroad, 1 Phila. 41. Winship, for the sheriff. THE COURT. Rule discharged. C. P. No. 3. March 13, 1882. In re Estate of Amelia G. Johnson, a Lunatic. Committee of lunatic-Measure of accountability where the committee mingles the trust funds with his own-Profits and interest thereonCommissions and counsel fees. Sur exceptions to Auditor's report. The Auditor, Samuel M. Hyneman, Esq., appointed to audit and adjust the final account of James Trimble, committee of the person and estate of Amelia G. Johnson, a lunatic, found the following facts: In 1868, Amelia G. Johnson was found to be a lunatic, and her brother, James Trimble, the accountant, was appointed committee of her person and estate. She was afterwards, by decree of March 20, 188c, restored to her full and legal rights. The first money received by the accountant was in August, 1868. In stating the final account, the accountant charged himself with interest at six per cent. per annum on the entire amount of funds coming into his hands, from the date of its receipt to the date of filing the account. The funds of the estate were never placed in legal investments, but were kept with his own. He used these funds together with his own in discounting negotiable paper, covering a period of four years from August, 1868, to August, 1872, and resulting in a profit of $4249.61, being $1537.24 in excess of the legal rate of interest, for which excess no credit was given the estate. that he be charged with one-half the expenses of the audit; and that he be surcharged with interest to May 18, 1881, on the entire amount of moneys received by him, viz., $144.08, because they were not in a condition to be paid over until that time, when they were deposited in a separate account. To these findings of the Auditor the accountant filed exceptions, assigning as error the abovementioned surcharges, and the refusal to allow commissions and counsel fees. D. W. Sellers and Wm. S. Lane, for exceptants, cited :— McElhenny's Appeal, 10 Wr. 348. John H. Colton and W. W. Weigley, contra, cited: Norris's Appeal, 21 P. F. Sm. 106. March 18, 1882. THE COURT. With one exception, we agree with the conclusions reached by the Auditor in this case, and for the reasons so well stated by him. The whole income of the estate, on September 1, 1872, was $216.92 less than the expenses-the accountant had not only sustained the lunatic, but advanced money for her support. We cannot understand why the accountant should be charged interest to the amount of $804.21 at the very time he was expending money for the support of the lunatic. that this charge is manifestly wrong, and we sustain the first exception, and direct the item of $804.21 to be stricken out of the items of surcharge. With this exception, we sustain the report. We concur with the counsel for the accountant Opinion by LUDLOW, P. J. In 1872 and 1873, these funds, together with his own, were invested in real estate in his own name, in a furnace in Mercer County, Penna., C. P. No. 4. and which proved to be an almost entire loss; and in a dwelling house on Arch Street, in which he resided and which had depreciated in value; and small amounts of the income of the estate were used in his business. The Auditor held that the accountant should be surcharged with the profit of the negotiable paper purchased with the funds of the estate over and above the six per cent. interest credited to the estate in the account filed, viz.: $1537.24; that the profits made by discounts should be added to the principal of the estate, forming a new principal for the computation of interest, and that the accountant be surcharged with interest on Fritsche v. Kerns. March 13, 1882. Case-Trespass committed colore officii-United States Marshal-Certificate of probable cause -Act of 24 February, 1807, Revised Statutes, § 970-Not a defence in case of abuse of authority. Sur demurrer to plea. Case, for damages suffered by the plaintiff in consequence of the alleged improper conduct of the defendant, who, as Marshal of the United States for this district, in the execution of a writ of attachment issued out of the District Court of the United States for the Eastern District of Pennsylvania against certain goods belonging to the plaintiff, alleged to have been imported in violation of the revenue laws, seized and took possession of the plaintiff's place of business at No. 1320 Chestnut, and instead of removing the goods impounded them upon the premises, dispossessed the plaintiff, and kept him out of possession of the store, in consequence of which he was for a long time deprived of the use and enjoyment of the premises. The defendant pleaded that the acts complained of were done under and by virtue of the authority contained in the writ of attachment, that on the trial of the attachment the jury found a verdict for the United States, and that the Judge certified that there was probable cause for the suit. To this plea the plaintiff demurred. The Act of Congress under which the certificate was given provides that "when in any prosecution commenced on account of the seizure of any vessel, goods, wares, or merchandise made by any collector or other officer under any Act of Congress authorizing such seizure, judgment is rendered for the claimant, but it appears to the Court that there was reasonable cause of seizure, the Court shall cause a proper certificate thereof to be entered, and the claimants shall not in such case be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution." (Acts of 24 Feb. 1807, c. 19, 1, and 2 March, 1799, c. 22, § 89. Revised Statutes, § 970.) much entitled to the benefit of the Act as the collector or prosecutor. But the plea is unquestionably bad because the injury of which the plaintiff complains in his declaration is, not the seizure of the goods, but an abuse of the authority, conferred by the writ, in depriving the plaintiff of his store, turning it into a pound and keeping the plaintiff out of the possession of his premises. The Marshal was protected from any suit for the seizure of the goods by his writ of attachment and by the verdict and judgment for the United States rendered in the District Court. Nor do we see why any certificate was necessary for his protection in making a seizure in a case where the United States and not the claimant of the goods were successful in the suit. The Act of Congress directs a certificate "of reasonable cause" to be given only in cases where the claimant is successful. In all cases where the United States are successful and the attachment is sustained, all who were concerned in the seizure of the goods are protected by the general law of the land, the seizure having been justified by the finding of the jury and the decree of the Court. For that reason no certificate is directed to be given in cases where the United States are successful, and the claimant is defeated, but only where the claimant is successful. But, as was before observed, the cause of action set out in the plaintiff's declaration is not the seizure of the goods, but a trespass, for the commission of which the writ of attachment furnishes no justification. Neither the writ of attachment nor the certificate of the Judge is an answer to an action for a trespass committed colore officii, nor were they intended to be so. As well might the defendant attempt to justify a battery or imprisonment of the defendant under the authority contained in his writ as to justify the seizure of property of a different kind from that mentioned in the writ and withholding it from the plaintiff. A ministerial officer is always protected by his process where he acts in obedience to it, but the process is no protection to him against the consequences of acts which are not justified by it. The object of the Act of Congress was to protect the officers of the United States from suits for seizures made in obedience to the laws of the United States and the process under which they act where there is probable cause for the seizure, The form of action is wrong, and should be even although it might appear in the sequel that trespass vi et armis and not case. the property seized was not liable to seizure. It C. A. V. never was intended, and cannot operate as a April 29, 1882. THE COURT. (After stat-protection against the consequences of acts which ing the facts.) We do not agree with the plain- are not authorized by any law of the United tiff's counsel in the proposition that a Marshal of States, and for the commission of which the prothe United States is not an officer within the cess under which they act furnishes no warrant protection of this Act where he is entitled to or justification. claim that protection. On the contrary, he is plainly within the words of the Act, for he is "the person who made the seizure," and is as Henry G. Ward, for the demurrer. The certificate of probable cause is intended to protect a collector of the revenue and not a United States Marshal. But the plaintiff complains not of the seizure by the Marshal but of the trespass committed by him in consequence of which the plaintiff was dispossessed of his property. Hood Gilpin, Assistant United States District Attorney (with whom was Jno. K. Valentine, United States District Attorney), contra. The certificate of probable cause is a bar to the action. Gelston v. Hoyt, 3 Wheat. 314. Averill v. Smith, 17 Wall. 82. Judgment for the plaintiff on the demurrer. WEEKLY NOTES OF CASES. the Court should be of opinion that such agreement if made and carried out would be a bar to any action on the note in suit, the jury might then find a verdict for the plaintiff for the amount VOL. XI.] THURSDAY, MAY 18, 1882. [No. 24. of the three notes sent with the cash, to wit, for Error to the Common Pleas No. 3, of Philadelphia County. Assumpsit, by the Mechanics' Bank of Harrisburg against Robert Huston, upon a promissory note, dated July 20, 1877, made by defendant to the order of George W. Parker for $1265, payable ninety days from date. The note was indorsed by Parker to the plaintiff, and bore upon it a receipt signed by plaintiff for $508. On the trial, before YERKES, J., the defendant testified that after the maturity of said note and the protest thereof, plaintiff agreed to compromise før 75 per cent. in full, $508 to be paid in cash, and the balance ($442) to be paid in his three notes, at eight, sixteen, and twenty-four months respectively, which notes were not to bear interest, and on receipt of which plaintiff undertook to restore the protested note. He then further testified that he had paid the cash and made and delivered the three notes as agreed, that said cash and notes had been retained by plaintiff, and that plaintiff had failed to restore to him the protested note, although requested so to do. The president of the bank plaintiff, being called as a witness, admitted the receipt of the cash and notes as testified to by defendant, but denied that any agreement had ever been made to compromise the original debt. He further testified that defendant had agreed to give three interest bearing notes, whereas those forwarded by him were noninterest bearing. Counsel agreed that if the jury should find that the parties had compromised in the manner testified to by the defendant, and that the delivery | of the three notes and cash by defendant to the plaintiff was a full performance on the part of the defendant of his share of the agreement; and if $442. The Court charged as follows: "What was the agreement, 75 per cent. without interest or with interest, and was that to be in full of the existing debt when cash and notes were delivered? As you determine that question the rest depends. If the defendant has not carried out that agreement he fails, for he will not have proved accord and satisfaction. As to the other legal questions [I charge you that if defendant sent the cash and notes as agreed on, and they were received and not returned within a reasonable time, or not returned at all, the accord and satisfaction is proved, and your verdict will be only for the three notes sent at eight, sixteen, and twenty-four months, but for nothing more.] Verdict and judgment for the plaintiff in the sum of $442; whereupon plaintiff took this writ, assigning for error the portion of the charge of the Court included in brackets. D. Holsman (with whom was G. T. Bispham), for the plaintiff in error. The acceptance by a creditor from his debtor of the latter's unindorsed promissory notes for an aggregate amount smaller than that of the debt cannot operate as a discharge of the debt; for there is no consideration for the relinquishment of the residue; and, therefore, as to it the agreement is nudum pactum. Cumber 7. Wane, 1 Sm. Lead. Cases, 439. It is true that the common law rule was temporarily overthrown in Pennsylvania. Milliken v. Brown, 1 Rawle, 391. But Milliken v. Brown was decided by a divided Court, and its principle has since been denied to be the law. Diller v. Brubaker, 2 Smith, 498. Savage v. Everman, 20 Id. 315. This question was squarely presented to the Court, and decided in 1872. D'Olier v. The Bank, 4 Leg. Gaz. 66. Since then we may assume that the doctrine in Cumber v. Wane (supra) is law in Pennsylvania. Any consideration, no matter how slight, will suffice to support an accord and satisfaction, that is to say, the Court will not inquire into the adequacy of the consideration. But in the present case the three notes of the defendant, whether negotiable or not, could in no event be worth more than the amount of their face value; therefore the plaintiff could not be benefited by them to a greater degree than if he had received the same amount in cash. |