Neff, the defendant in said judgment; ment, to him with interest from the date and that he honestly and truly paid as a of said note. The defendant, Charles consideration for said judgment, the sum Neff, says that he has no defence whatof $2.000.00 to the said Charles Neff, in ever to said judgment. cash in the office and in the presence of Frank Geise, E-q; that he has a legal, just and valid claim and demand against the said Charles Neff, defendant, in the full amount set forth in said judgment, to wit, the sum of $2 000.00, with inter est thereon from the date of the execution of said judgment, and be therefor prays your Honorable Court to dismiss the said rule in order that he may proceed in a legal manner to recover the amount of money so as aforesaid paid and set forth as a consideration for said judgment.

WILLIAM H. TAYLOR.

E. W. Spangler and H. L. & G. G. Fisher for rule.

Geise & Strawbridge, contra.

June 18, 1895. BITTENGER, J.-This rule was granted, by the court on the pe tition of Matilda Neff, the wife of the defendant, in which it is alleged that said judgment for $2.000, against Charles Neff, her husband, is without valid legal and bona fide consideration, and collusive and a fraudulent scheme to deprive the petitioner of her dower in the lands of her husband, should she survive him. The prayer is for a rule to show cause why the judgment should not be opened or set aside and she be permitted to make defence to the same; to stay the fi. fa. and grant her such other and further relief as the circumstances of the case shall require.

The testimony shows that the petitioner and her husband have had differences and have been separated some thirteen years; that divorce proceedings were instituted against his wife, by the husband on August 24, 1885, which are still pending and undetermined; that several efforts have been made by the husband and defendant in the judgment, to have the persons desiring to purchase lands of the petitioner to join with her husband, Chas, Neff, in the conveyance of the farm levied on by plaintiff's fi. fa., which she refused to do;that said Charles Neff before the execution of the note and warrant of attorney, threatened that if his wife did not sign off, and grant him a divorce, that he would have his real estate disposed of by the Sheriff. The evidence also strongly tends to establish the fact that the payment of the $2,000.00 by Wm. H. Taylor to Charles Neff, and the execution and delivery of the judgment note, and the issuing of the execution thereon, were for the purpose of vesting the said real estate levied on, in said Wm. H. Taylor, divested of any right of dower in the petitioner, Matilda Neff.

This is not allowed by the law. A wife is without power to prevent by legal process, or impeach, the disposition of personal property by her husband during his lifetime; Pringle v. Pringle, 59 Pa. 281; Lines v. Lines, 142 Pa. 149. In the opinion of the court below in the last Both the plaintiff and defendant in the cited case, however, the case of Thayer v. judgment, have filed answers avering the Thayer, 14 Vt. 107, is cited, which is repayment by the plaintiff to the defendant, marked upon by the learned Judge Alon the day of the date of the judgment bright, substantially as follows: "In that note, March 14th, 1895, of the sum of case the husband, shortly before his death, $2,000.00 named in said note. The de-in anticipation of an early death, confendant states more fully that said $2,000.- | veyed all his real and personal estate to oo is part of the consideration of the real his son, in trust for said son, and other estate sold by said Charles Neff, to said Wm. H. Taylor, in September, 1894, for which a deed was to be delivered on April 1, 1895; that the judgment was given for said purpose, in good faith, and not with any view, as alleged in the petition, of depriving the petitioner of any right of dower in the said husband's lands. Wm. H. Taylor, in his answer, set up a valid "As to the lands and tenements the and bona fide indebtedness of said sum, wife is protected to the extent of her on the part of the defendant in said judg-dower, against any transfer or disposition

children of a former marriage, for the purpose of disfranchising his wife of her right of dower and share in his estate. It seems that the rights of a widow in said State, at the time in question, 1842, were substantially the same they now are in this State. The conveyance was set aside at the instance of the widow.”

of her husband, by act inter vivos, or last will and testament without her consent;" Pringle v. Pringle, supra.

"The law will lay its hand upon a fraudulent scheme to deprive the wife of her dower or the husband of his estate by the curtesy, and will open or stay pro ceedings upon a judgment confessed, without a full bona fide consideration, to be used to carry such scheme into effect; Wells v. Bunnell, 160 Pa. 460.

The cases cited, to which many more might be added, show that this issue should be framed to determine whether or not the judgment in question was collusively confessed by the defendant and the fi fa. issued by the plaintiff to deprive the petitioner, the wife of the defendant, of her right of dower in the land levied upon on said fi. fa.

It follows that this rule can not be made absolute. There could, on the trial, This rule is to open the judgmen tand be but one result, a verdict for the plainlet the defendant into a defence. The tiff, because the judgment is valid bedefendant has nothing to defend upon. tween the plaintiff and defendant, and He confessedly owes the plaintiff two therefore enforcible by the plaintiff. thousand dollars, with interest from the The petitioner alleges a clerical error, date of the note. While the judgment by the Prothonotary, in entering the rule may be void as against the dower right of contrary to the prayer of the petitioner, Matilda Neff it is valid and binding and asks leave to amend by making it a against Charles Neff. A judgment given rule to show cause why the petitioner by collusion, between the debtor and should not be allowed to appear and deplaintiff in the judgment, for the purpose fend in the trial upon the judgment, on of hindering and defrauding creditors is its being opened by the court. void as to such creditors, "But they can This proposed amendment can not be only have it set aside as to themselves, allowed, because it is out of time, after they cannot impair it as between the the taking of the depositions and arguparties;" Appeal of the Second National ment of the rule. The counsel for the Bank of Titusville, 85 Pa. 531. There respondents, with much force says his need be no multiplication of citation of conduct of the case of his clients would decisions to show that all such judgments have been materially different had the given by collusion between the parties to the same, are valid between themselves, and will be enforced.

The proper practice in proceedings to set aside collusive and fraudulent judgments, is not to open them and let the defendant into a defence, but to direct an issue to determine the validity of the judgment as against those injuriously affected by the fraud. In Gates v. Johnston, 3 Pa. 55, Chief Justice Gibson says: "It redounds greatly to the credit of the judge, however, that he did not follow the old, clumsy, unprofessional and barbarous practice of opening the judgment between the original parties, who must be bound by it, between themselves, whatever may be the event between the plaintiff and the creditors, but awarded a collateral issue to try, not indeed, expressly, whether it was collusion as it ought to have been, but whether it was good for any part of the debt, against the creditors." As the plaintiff in that case was not prejudiced by the informality of the issue he was not allowed to assign it for error. See also Clark v. Douglass, 62 Pa. 416.

rule been as it is now sought to make it, by the amendment. Besides, it does not appear to us that the rule, as it is proposed to amend it, is in accordance with the correct practice in attacking collusive and fraudulent judgments, as held in the cases cited herein and many other well established cases. The matter at issue could not be legally and satisfactorily determined in the trial demanded in the prayer for the amended rule, and the judgment left valid as between the plaintiff and the defendant.

All the petitioner has a right to do is or have the judgment in question declared collusive and fraudulent, as against the right of dower in her husband's lands, leaving the judgment to stand valid between the immediate parties thereto.

While we must refuse to allow the amendment, and discharge the rule, we feel impelled to grant a rule, upon the original petition for relief, against the paintiff and defendant in the judgment, to show cause why an issue shall not be framed between them and the petitioner to determine whether or not the judgment in question was collusively confessed by

the defendant, and the fi. fa. issued there- the land by virtue of a parol agreement on by the plaintiff, to deprive the peti- entered into with Small at the time of the tioner of the right of dower in the tract dissolution, part of the consideration being of land levied upon on said writ; return- the payment of a certain indebtedness able on the first Monday in July, 1895, owing by Ehrgood to Small, and part a at 10 o'clock a. m., and to order proceed- general settlement of their affairs and that ings to stay on said judgment, as to the he was in possession in pursuance thereof. lands of the defendant, in judgment, until The court gave binding instructions to the the determination of said rule. jury directing a verdict for the plaintiff, charging them as follows:

Parol Sale of Land-Proof of Verbal that is, a contract by word of mouth with

wards v. Morgan, 100 Pa. 330; Hart v. Carroll, 85 Pa. 508. All this must be established moreover by proof that is at the same time both clear and convincing; measured by these standards the defendant has no case.

By Mr. Wells-Q. Just what you heard them say? A. I understood Mr. Ehrgood gave his note for a thousand dollars.

By Mr. Watson-The counsel for plaintiffs object to the answer and asks that it be stricken out.

By the Court-Strike that answer out. By the Court-Q. How much was to be paid for this land? A. I had a conversation with Mr. Small one time

The proof of an agreement by Small to convey the land to Ehrgood depends upon the testimony of Elias Pickering. This, instead of being such in character as the law requires is rambling and confused. By Mr. Watson-You needn't give that. The most that can be made out of it is By the Court-Q. At that time when that Small promised if Ehrgood would you said they met together and had a pay him what he owed him, in certain glass of wine, how much did they agree installments so that it should be liquidated that Mr. Ehrgood should pay Mr. Small by a specified time, he-Small-would for this land in dispute? A. They didn't throw off a part of the indebtedness and say; it was not this land in dispute, no deed him this property. This indebted-more than the mill. ness had originally been about $4000, but By Mr. Wells-Q. It was for the whole had been reduced before this time by thing? A. Yes sir, it was the whole the application of rent due from Small to indebtedness. I understood $1,500-no Ehrgood, while he occupied the mill as he was to pay $1,500; it was above that; Ehrgood's tenant. There is some evi- he threw off some. dence also by which we might under- Cross-examination by Mr. Watsonstand that a part of the amount thus Q. Mr. Pickering, they did not say anyspoken of was made up of what Small thing especially about this piece of land had invested in the business in which he at that time did they? A. There was was engaged at the mill, including the nothing said in particular about that, any amount paid to Gaige on the purchase of more than he gave a deed for it: That this lot. The promise of Small, however, was not made as supposed by defendant's counsel at the time that Small and Ehrgood dissolved partnership. There may have been some arrangement with regard to the lot at the time, and probably was, because we find Small speaking about having sold the property to Ehrgood and endeavoring through Pickering to buy it back for one Lewis, who was working for him. But this, by Pickering's own statement, was prior to the final arrangement, when according to his evidence the two parties got together to settle their affairs, and it was at this final settlement that the conditional offer of Small to deed the property to Ehrgood was made.

It is also a mistake to suppose that there was any definite price fixed for the land. The idea probably grows out of what was said by Pickering in the first part of the following colloquy:

"By the Court-Q. How much was to be paid for this part of the property, that is, this where the race was? A. The disputed part? Q. Yes. A. This was, as I understood it-I can't tell where it was from-but I understood he took Mr. Ehrgood's note for a thousand dollars.

is all."

It is useless to argue upon this that the consideration was $1,000, or any other sum; even if the first part of the testimony quoted be allowed to stand, it is entirely overcome by that which follows, and we have there the distinct averment that nothing was said as to how much should be paid for the land, nor anything specially stated with regard to it, except that in the general settlement Small was to give Ehrgood a deed. We are left to seek therefore, for a consideration in the general arrangement made with regard to their affairs. In this, as it seems to me, we shall experience considerable difficulty. If the promise which is set up was to convey in consideration of any existing indebtedness, what is there to make it binding? Ehrgood would be simply agreeing to pay his own debt and the promise of a reduction and a deed of property by Small would be mere gratuities held out as an inducement to get him to do that to which he was already obligated. This would not be the case, it is true, if the arrangement included a reimbursement to Small of all that he had in the business, but that this was the

nature of the transaction is not made at all clear.

But, however, that may be, and treating the matter as favorably for the defendant as we can, the case is still lacking in several particulars. If the agreement of Ehrgood, which is supposed to furnish the consideration of the contract relied on, was to pay Small his indebtedness, there is no proof that it was either paid in the manner or by the time specified. A part payment or compliance it is manifest, would not do. Where the consideration is a past indebtedness the manner of payment proposed is certainly of the essence of it, if it is to furnish a consideration at all. Nor is there satisfactory proof that the indebtedness was ever fully paid. It is true we have evidence of the subsequent liquidation of certain judgments held by Small against Ehrgood, but what is there to show that this comprised the whole of it, and how without this would the conditions be met, which would entitle the defendant to the land? If, however, the agreement relied on provided for the reimbursement to Small of all that he had in the business, Ehrgood's indebtedness and the purchase money of the land being included in the arrangement, the indebtedness could not be regarded as the consideration of the promise to convey, and Ehrgood, to prove payment of any part of the consideration, could not therefore stop with proof of payment of his indebtedness, but must show a compliance with some of the rest of the bargain, which he has not done.

through the lot; this was the extent of
Ehrgood's possession when he himself
ran the mill before that, and Small as
tenant would merely succeed thereto.
When Ehrgood therefore took possession
again it would be, to say the least, doubt-
ful whether to ascribe it to the contract or
to the former possession surrendered to
him. There could be, under the circum-
stances, no such taking of possession in
assertion of the contract as is held requis-
ite. "An unequivocal and substantial
change of occupancy," says Strong J. in
Hill v. Meyers, 43 Pa. 170, "must be part
of the evidence of the contract, a fact
attesting that the parties have bargained,
and therefore the possession must be de-
livered under the parol agreement." This
certainly can not be said to be the case
here. Without further discussion, we can
merely say, that under the best consider-
ation which we have been able to give to
the matter we see no chance for sustain-
ing a verdict in favor of the defendant
and the rule for a new trial must there-
fore be discharged.
Rule discharged.

Costs of Prosecution-Prerogative of Juries
-Non-interference of Court.

Where the Grand Jury ignored a bill and directed the prosecutor to pay the costs, the court will not interfere with such disposition, notwithstanding a prior commitment of the defendant, on the same charge.

Rule to remit costs.

The facts appear in the opinion.
J. Elliott Ross, E. H. Shurtleff for rule.
John R. Jones, District Attorney, and
H. A. Knapp, County Solicitor, contra.

Again, while the evidence shows that Ehrgood had possession of the property, it does ot show that it was taken in pursuance of the contract, or in reliance upon it. If we accept the theory of his counsel that the promise to convey was made when the parties dissolved their business relations there was at that time May 20, 1895. GUNSTER, J.-Upon a joint possession, and the possession of Ehrgood which followed would be merely a continuation of that which he had before, which would not be sufficient; Aitkin v. Young, 12 Pa. 15. The same is true if the agreement was made when Small was running the mill, as Ehrgood's tenant, the time to which Pickerings' testimony seems to assign it: Small at the time, as tenant, must be regarded as tenant of the whole mill property, including as an essential part of it the race which ran

the hearing of the petition of Michael Gilgallon for the benefit of the insolvent laws, Peter Estreuth appeared in person and by counsel and actively opposed his discharge, alleging that Gilgallon had conveyed some of his property to another for the use of himself and with the expectation of receiving future benefit to himself and with intent to defraud his creditors. The court took this view of the matter and committed Gilgallon for trial. At the March session of the grand