April 14, 1877. Marberry v. Freno. "All registered taxes, as aforesaid, shall cease to C. P. No. 4 It follows, from these Acts of Assembly, that the same time is given the plaintiff to obtain judgment upon his writ of alias scire facias, as is given to prosecute to judgment a like writ to continue the lien of a judgment, and this, by the very terms of the Act of the twenty-sixth of March, 1827 (Bright. Dig. 820), and the adjudications thereupon, is limited to five years from the time of issuing the scire facias. (In re Fulton's Estate, 1 P. F. Sm. 204; Meason's Estate, 4 Watts, 344; Silverthorn v. Townsend, 1 Wright, 263; Ward v. Patterson, 10 Wright, 372; Hershey v. Shenk, 8 P. F. Sm. 384; Hunter v. Lanning, 26 P. F. Sin. 25.) It therefore follows that the plaintiff's scire facias has not, in the language of the Act of the eleventh of March, 1846, been "duly proceeded in to judgment." And this notwithstanding the plaintiff caused a scire facias to revive the lien to be issued October 31st, 1876. It is not pretended that this writ was a pluries. Indeed, it could not be; for, as the alias was duly served, there was no legal requirement in the case which a pluries could answer. Regarding it, then, as an independent writ, as it was held under like circumstances in Meason's Estate (4 W. 341), it was an abandonment of the scire facias previously issued, and in this view there was no lien to revive, as the lien had already expired on the sixteenth of March preceding. Viewed in either aspect, the presentment is alike fatal to the plaintiff's case. We therefore order that the rule for a new trial be discharged, and that judgment on the verdict be arrested. Judgment arrested. This was an action of trespass. The writ was returned "served," but no appearance was entered by the defendant. The plaintiff after the returnday filed a declaration and a rule to plead, and served the same personally on the defendant. Eleven days after the filing of the narr. judgment was entered against the defendant for want of a plea. Subsequently writs of fi. fa. and ca. sa. were taken out. John Cadwalader, Jr., for the rule. No declaration having been filed before the return-day, no judgment could have been taken for want of appearance. Foreman v. Schricon, 8 W. & S. 43. Black v. Johns, 18 Sm. 83. No appearance having been entered, the defendant was not in Court, and could not be ruled to plead, and therefore a judgment against him for want of a plea was irregular. The facts set forth in the affidavit on which the rule was granted show a good defence. G. F. B. Collins, contra. THE COURT was of opinion that the judgment. was not irregular, but, on consideration of the affidavit as to merits, made the rule absolute, on condition that the defendant immediately appear and plead issuably. C. P. No. 4. Stokes v. Harrison. Mar. 17, 1877. Legal tender-Ground-rent payable in "current silver money of the United States"— Coinage under Act of Congress of Jan. 18, 1837— Tender made in silver coin of the denomination of five and ten cents each coined before the 21st of Feb. 1853. Rule for judgment for want of a sufficient affidavit of defence. Covenant on a ground-rent deed created in 1806, covenanting for payment in current silver money of the United States. The affidavit set forth a tender of "current silver money of the United States, in silver coins of the denomination of five and ten cents cach, all coined at the mint of the United States before the 21st day of February, 1853." A. L. Wilson (with whom was John G. Johnson), for the rule, cited— Maule v. Stokes, 3 WEEKLY NOTES, 373. N. II. Sharpless, contra, contended that the tender was a good one, that the coins under Act of Congress of January 18, 1837, were legal tender of payment according to their nominal The Orphans' Court docket showed the followvalue for any sums whatever, that they were still ing entries: in circulation as current silver money of the Nov. 11, 1876. Sur petition, citation awarded, diUnited States," and that they were not demone-rected to William Duane, executor, to file account. tized by subsequent Acts of Congress of 1853 and 1873. Answer filed. Dec. 2. Sur supplemental petition, citation awarded, directed to William Duane, trustee, to file an account, returnable Dec. 16. Answer filed. Dec. 23. Rule entered to take depositions on behalf of petitioner on eight days' notice. The counsel for the trustee applied to the Court, upon the exhibition of the above record, to vacate the rule entered to take depositions on behalf of petitioner, and appoint an examiner to take proofs on petition, answer, and replication. Chas. Henry Hart, for trustee. Rule XII., Sec. 5, of the Orphans' Court. The proceedings before the Orphans' Court are upon petition, answer, and replication, by analogy to the practice in equity, this Court being, within the limits of its jurisdiction, a Court of equity, proceeding substantially according to the forms and rules of chancery practice. Dundas's Appeal, 14 Sm. 332. Depositions are but secondary evidence, and can be used only when witness cannot be pro duced. 1 Greenleaf's Evidence, 321, 324. Stiles et al. v. Bradford, 4 Rawle, 400. not be part of the record. Brown v. School Directors, 6 H. 78. The Act of March 29, 1832 (Purd. Dig. 1106, pl. 27, and 1109, pl. 48), provides how testimony shall be taken in the Orphans' Court in support of petitions, and Carbart's Estate (1 WEEKLY NOTES, 85) is a decision of this Court upon the practice in such cases. J. J. Ward, contra. March 31. THE COURT vacated the rule entered to take depositions, and appointed an ex Jan. 18, 1877. aminer. Orphans' Court practice-Depositions-Evidence before examiner-Testimony will not be received upon depositions where it could be taken before an examiner-Rule XII. of Orphans' Court. Sur exception of trustee to rule entered by petitioner to take depositions. (No opinion. Testamentary trustees-Removal of Incompatibility of dispositions sufficient ground for removal when the interests of a cestui que trust may suffer-Petitioning trustee removed as well as respondent. Seyfert's Estate. Feb. 20, 1877. interests of the estate demand a careful consider- Sur petition of Louisa E. Seyfert, widow of the decedent, and co-executrix and co-trustee of above estate with Henry Knauff, in which petition Theodore H. Seyfert, Emma G. Seyfert, and Maria L. Seyfert, also joined, they being all the parties in interest in said estate. The petition set forth that the decedent's entire estate was devised in trust for the afore-mentioned petitioners, but that the said Henry Knauff is in no manner interested in the said estate, except in his fiduciary capacity as executor and trustee, and is an entire stranger to the blood of the decedent, and that during the past ten years there has been a want of congeniality and concert of action between himself and his co-trustee, which has led to expense and litigation. The petition further set forth that the said Henry Knauff has in his possession certain ground-rents of above estate, nearly all of which are prompt paying, also $4500 in coupon bonds; that the payments of income to the cestuis que trustent are very irregularly made, and often in the individual checks of Knauff. The petition also alleged a disregard of an order of Court for a reinvestment; and that a balance due the petitioners under an adjudication of this Court of his account to Jan. 1, 1876, made in July, 1876, has only recently been paid and settled, which was only done in pursuance of a rule granted to show cause why an attachment should not issue to compel him to obey the order of this Court. The petition also averred general mismanagement and wasting of the estate, and prayed for the appointment of Wm. H. Peters and Theodore H. Seyfert (one of the cestuis que trustent), in the place and stead of Louisa E. Seyfert and Henry Knauff. The answer set forth that the respondent had for many years enjoyed the confidence and intimacy of the decedent, denied the charges of the petitioners in toto, and referred to the opinion of the late Orphans' Court, quoted below, in which LUDLOW, J., said that the same argument which would oblige "the Court to remove the one, would also compel the discharge of the other." Jerome Carty, for the petitioners. W. H. Staake, contra. of John II. Seyfert, deceased, and it is ordered that they each file thefr account before the 24th day of March next, and that in default of the nomination by petition on the part of the cestuis que trustent, on or before March 24, 1877, an appointment of a new trustee be made by the moved from their offices as trustees of the estate Court. Opinion by DWIGHT, J. U. S. District Court― April 20, 1877. The Court adopted the following Rule of practice. In all cases in Admiralty in which depositions. have been taken, each party shall furnish to the Court, at or before the commencement of the hearing, a printed or written statement of facts and points of law; and in case of appeal, such statement shall be certified to the Court of Appeal. March 16, 1877. Sheppard v. Philadelphia Butchers' Ice Co. damages in the nature of demurrage. The cargoes had been shipped in Maine consigned to the Ice Company, as owners, at Philadelphia. The bills of lading stipulated for the delivery of the ice to the company at the Christian St. wharf, on the river Schuylkill in said city, the consignee to pay freight. No demurrage clause was inserted. March 3. THE COURT. The opinion of LUDLow, J., reported in 9 Phila. Rep. 320, thus concludes: "The difficulty in this case we conceive does not arise from any want of honesty or capacity, but from peculiarities of character upon one side, and a rather hasty and suspicious temper upon the other. Would it not be well to attempt The libels alleged that the Curtis Tilton to modify the one and control the other? The arrived at Philadelphia on May 29th, 1876, at ་ Christian St. wharf, with her cargo aboard; that payment, even if he accept the cargo. (Giage v. the company accepted the cargo and commenced to receive the ice, but detained the vessel till the 15th day of June, by reason of which the libellants suffered damages, etc. The answer alleged that there was no improper delay in unloading; that when libellants' vessel arrived, there were other vessels occupying the wharf, which compelled the libellants' vessels to await their turn, which they did, and that the masters well knew when they shipped the cargo, that this would probably be the case; that there was no liability on the part of respondents, because the bill of lading stipulated only for the payment of freight and nothing more. At the hearing of the cause, on January 12, 1877, the Court (CADWALADER, J.) said: In these cases the impression of the Court, after the reading of the papers and proof, is that the respective libellants are entitled to decrees in their favor. But if so, it will be necessary to ascertain the damages in every case by a commissioner; .. therefore, Edward F. Pugh, Esq., is commissioned to inquire and report what damages in every one of the cases ought to be assessed if the libellant is entitled to recover, and to report specifically any proposition of law or fact which may be material on the question of the right to recover. On February 23, 1877, the commissioner reported as follows: (1) The actions were properly brought in the Court of Admiralty; no authorities requiring them to be brought at law. Morse, 12 Allen, 410; see also Young v. Moeller, 5 El. & B. 755; Chappel v. Comfort, 10 C. B. N. S. 802.) Nor is he liable when the delay was not from his own default. (Smith v. Siveking, 30 Eng. L. & Eq. 389, affirmed 5 El. & B. 945; Rodgers v. Forresters, 2 Campbell, 483.) The consignee, merely as such, is not liable for damages for detention where no demurrage or lay days are mentioned or referred to in the bill of lading. (Abbott on Ship. 221; Sprague v. West, 1 Abbott's Adm. R. 554; Gage v. Morse, 12 Allen, 410; Donaldson v. McDowell, 1 Holmes, 292.) But when the consignee is the owner of the cargo, there is an implied agreement that he will provide for its discharge within a reasonable time, and he must explain delay. (Cross v. Beard, 26 New York, 85.) Especially if he be in reality (though not in name) the freighter. (Sprague v. West, supra; Donaldson v. McDowell, 1 Holmes, 292; The Hyperion, 7 Amer. L. Rev. 457; Clendaniel v. Tuckerman, 17 Barbour, 190; Cross v. Beard, 26 New York, 85; The Woodbine, 1 Law Times, N. S. 200; Falkenburg v. Clark, 16 Amer. L. Regis. N. S. 90.) The burden of proof that the detention was reasonable lies upon the respondents, and being the real freighters and owners, and having detained the vessels a longer time than was reasonable, they should be held responsible. (5) The proper measure of damages is the gross freight which the vessels would have earned, under ordinary circumstances and in their usual course of employment, from the time when they (2) While it is true that demurrage eo nomine ought to have been discharged to the time when is never payable unless expressly stipulated the discharge was actually completed; deducting (Robertson v. Bethune, 3 Johus. Rep. 342); yet the amount which would have been expended in damages for detention, in the nature of demur-earning the freight. (The Steamer Narragansett, rage, may be recovered (Horn v. Bensusan, 9 Carr. & Payne, 709). (3) The libels were properly filed in the names of the owners of the vessels, and not in those of the masters (Evans v. Foster, 1 Barn. & Ald. 118; Brounker v. Scott, 4 Taunton, 1); but the authority of the master to use the owners' names will be implied. (4) When the bill of lading has in it a demurrage clause, the consignee accepting the cargo is responsible for the payment of the demurrage, according to the terms of the bill of lading; or if the charter party stipulates for demurrage and the stipulation is referred to in the bill of lading, he is responsible. (Jesson v. Solly, 4 Taunt. 52; Wagener v. Smith, 28 Eng. L. & Eq. 356; Falkenburg v. Clark, 16 Amer. L. Regis. N. S. 90); even if he had no actual notice of the ar rival of the vessel (Harmon v. Clark, 4 Campbell, 159). But he is not liable for demurrage eo nomine if the bill of lading contain no provision for its | Olcott, 395; Sprague v. West, 1 Abbott's Adm. R. 554; Vantine v. The Lake, 2 Wall. Jr. 58; Swift v. Brownell, 1 Holmes, 467; Williamson v. Barrett, 13 Howard, 110; Jolly v. Terre Haute Bridge Co., 6 McLean, 248; The Cayuga, 2 Benedict C. C. 125; The Corier Maritim, 1 Cht. Rob. 287; The Gazelle, 2 W. Rob. 279; Talbot v. Janson, 3 Dallas, 133; The Apollon, 9 Wheat. 363.) In the present cases, where the crews were discharged, the wages which would have been paid them and the amount of their board are deducted. In all the cases, the port charges. and the amounts which would have been paid for discharging a cargo are also deducted. ject to these deductions the libellants are allowed the gross freight which they would have earned in the carriage of a cargo of coal from Philadelphia to Boston, that being their usual employment. Sub To this report the respondents filed exceptions. March 16. THE COURT (CADWALADER, J.). | suit is brought are for the payment of money at Exceptions dismissed and decree for libellants a future time, the consideration being executory, according to the above report. Affidavit of defence law-Averment filed with copy of instrument-Function and scope of averment in such case- -Semble, that the twoterm rule, based upon the old Pennsylvania practice, may be acted upon in a case not within the affidavit of defence law-Practice. (NOTE.-Origin and development of affidavit of defence law). Motion to set aside judgment. and the demand is for damages for the breach of Montgomery v. Johnson, 1 Miles, 324. Commonwealth, etc., v. Hoffman, 24 Sm. 105. THE COURT. Judgment would be granted upon the copies as filed, if it were not for the fact that the copies of the book entries, filed to assist the assessment of damages, tend to extend and not to limit the claim, as shown by the copies of the instruments of writing. Such a purpose is not within the rule allowing averments to be filed with copies of instruments. Judgment in each case vacated without prejudice to the right of the plaintiff to move for judgment, in accordance with the practice under the old second term rule, for default of affidavits alleging defence, and the amount thereof; but defendants have leave to file such affidavit in each case Oral opinion by CADWALADER, J. State." The following order was entered of record :— Judgment in this case had been entered by de"And now, to wit, this 15th day of November, fault, for want of an affidavit of defence, upon A. D. 1876, the Court orders the judgments to copy filed of an agreement in writing, whereby be vacated as having been unadvisedly entered, the company defendant agreed to ship and con- but without prejudice to any right of the plainsign to plaintiffs, within a specified time, a cer- tiffs to move for judgment for want of an affidavit tain quantity of coal to be sold by them at a cer- of defence under the rule and practice which is in tain commission. The plaintiff's were to make that behalf independent of the statute law of the advances on such shipments, a bond of indemnity being given to secure them against loss, of which a copy was also filed. With these copies plaintiffs filed an averment that the agreement had not been performed, whereby the plaintiffs were entitled to judgment for the amount of commissions upon the sales of the coal which should have been shipped; and also for a balance due on account of advances, as shown by a copy of book entries filed therewith. An affidavit was filed by defendant denying breach of the agreement, and averring that the copies filed, with the averments, were not such as to entitle plaintiffs to judgment under the affidavit of defence law. Dallas, for the plaintiffs. Judgment is asked upon the copies of the agreement and the bond of suretyship, and not upon the copy of book account, which latter is filed with the above instruments merely as an averment to liquidate the plaintiffs' claim, and to assist the clerk in assessing the damages. Frank v. Maguire, 6 Wright, 81. want of an affidavit of defence originated in the Su[The practice of taking judgment by default for preme Court, in 1795, under an agreement signed by all the attorneys except two, and entered among the records of said Court. As it is believed that this document is not to be found in print, it is here inserted, viz. : "It is agreed by the attorneys practising in the Supreme Court of Pennsylvania, that, in all actions now the same Court, either by original process or by redepending or which shall hereafter be instituted in moval from any inferior Courts, the defendant's attorney shall confess judgment to the plaintiff at the third Court [here follow certain provisions as to stay of execution] unless the defendant, or some person for him or her, shall make affidavit, at or before the second term, that, to the best of his knowledge and belief, there is a just defence, in whole or in part, in the same canse, and if the defence is to part only, then the defendant's attorney shall confess judgment to the plaintiff (if the plaintiff's attorney will accept the same in full satisfaction of his demand) for so much as shall be acknowledged to be due to the plaintiff in the said cause. Witness our hands this eleventh day of September, |