Avery v. Layton

• Decision Date: 16 April 1888
• Docket Number: 139
• Citation: 13 A. 528,119 Pa. 604
• Parties: E. F. AVERY v. A. J. LAYTON, ET AL
• Court: Pennsylvania Supreme Court

13 A. 528

119 Pa. 604

E. F. AVERY v. A. J. LAYTON, ET AL

No. 139

Supreme Court of Pennsylvania

April 16, 1888

Argued February 24, 1888

ERROR TO THE COURT OF COMMON PLEAS OF WYOMING COUNTY.

No. 139 January Term 1888, Sup. Ct.; court below, No. 183 April Term 1878, C.P.

On February 23, 1878, judgment had been entered in the Court of Common Pleas of Wyoming county in favor of C. L. Lafferty The First National Bank of Towanda, Samuel Howard, Charles Hawley and A. J. Layton, the latter being the sheriff of Bradford county, Pa., against E. F. Avery, upon a penal bond executed by said Avery in the sum of $1,500, dated February 22, 1878, reciting that upon certain executions issued out of the Court of Common Pleas of Bradford county the said sheriff had levied upon certain personal property alleged to be the property of Cyrus Avery and sold the same, on being indemnified by the other obligees, and that one A. R. Brown and said E. F. Avery claimed said property at the said sale thereof, and conditioned that the said E. F. Avery would well and truly indemnify and save harmless the obligees, etc from every and all manner of suits, actions, costs, charges claims and demands of said A. R. Brown and E. F. Avery or either of them for or by reason of said levy and sale.

On August 13, 1883, a scire facias having issued to revive the foregoing judgment, proceedings were begun to open it to enable a defence to be made, which resulted in the awarding of an issue on August 14, 1884, the bond to stand for a declaration, the defendant to plead the general issue and payment with leave, etc.

At the trial on November 16, 1885, before ELWELL, P.J., 26th district, holding special term, the testimony showed that in March, 1877, one J. P. Kirby issued execution upon a judgment he held against Cyrus Avery, a merchant in Bradford county, father of E. F. Avery, a dentist of Wyoming county. This judgment and execution were assigned by the plaintiff therein to E. F. Avery and his uncle, A. R. Brown. There was another execution in the sheriff's hands, and also two writs of testatum fieri facias from the Court of Common Pleas of Wyoming county, in favor of E. F. Avery against Cyrus Avery. The personal property of Cyrus Avery was all sold upon these writs, purchased by E. F. Avery and A. R. Brown, and the proceeds applied to the said executions. Subsequently, C. S. Lafferty, The First National Bank of Tamaqua, Samuel Howard and Charles Hawley issued executions upon judgments in their favor against Cyrus Avery, levied upon and sold the same property previously sold to E. F. Avery and A. R. Brown, who attended the sale and gave notice of their claim of ownership.

On August 7, 1877, after the foregoing sales, proceedings were begun in Bradford county against Cyrus Avery by warrant of arrest under the act of 1842, eventually resulting in his discharge by the court upon his giving bond to proceed to apply for the benefit of the insolvent laws. While these proceedings under the act of 1842 were pending against Cyrus Avery, both Cyrus Avery and E. F. Avery were arrested and jointly indicted in the Quarter Sessions of Bradford county, charged with a conspiracy to defraud the creditors of Cyrus Avery. On February 9, 1878, the defendants were tried and found guilty upon said indictment, but sentence was postponed till February 23, 1878. On the morning of said date the bond in controversy, dated the day before, was executed by E. F. Avery.

The defendant in the issue introduced evidence claimed to establish, that after said conviction the plaintiffs agreed with him that upon payment by the latter of the plaintiffs' unsecured claims against Cyrus Avery and the giving of a release to plaintiffs of all damages they might be liable to by reason of the second sheriff's sale of said personal property, the plaintiffs would appear in court and secure a nominal sentence upon the indictment; that the release was drawn up, but Brown refused to sign it; that the defendant, however, paid or secured all the unsecured claims of the plaintiffs against Cyrus Avery, took assignments of a portion of them, and paid $200 to the plaintiff's counsel for services rendered in the prosecution of the indictment; that, on the morning of February 23, 1878, the day of sentence, the plaintiffs presented to defendant the bond in controversy, dated and drawn the day before, and said that A. R. Brown might cause them trouble and they would not make any statement to secure a nominal sentence unless the defendant would sign the bond; that when the defendant refused, the plaintiffs said the law would then have to take its course, and when the defendant asked what that was, the plaintiffs replied that it was a penitentiary offence; that immediately thereafter the defendant under excitement and duress signed the bond, and went into court with his father Charles Avery when they were sentenced upon the indictment, each to a fine of $5 and costs; wherefore it was claimed that said bond was void.

On the part of the plaintiffs it was claimed from the testimony that the negotiations resulting in the giving of the bond were first suggested by the defendant, that the release referred to was to be the basis of a recommendation to clemency, and that when Brown refused to sign the release, the bond of indemnity was given in lieu thereof.

E. F. Avery, the defendant, having testified, as before stated, in his own behalf, on his cross-examination the plaintiffs offered:

The plaintiffs' counsel now propose to ask the witness whether he has not brought a suit against the sheriff of Bradford county for the sale of the property.

The defendant's counsel object: (1) that in chief they only examined the witness as to what took place at the time the bond was signed and the question proposed is not an inquiry about anything to which the attention of the witness was called in chief and therefore is not cross-examination; (2) the defence to the bond in suit is that the consideration was illegal and it makes no difference whether the witness had brought a suit against the sheriff of Bradford county or whether he has not; the proposed evidence is therefore immaterial and irrelevant.

By the court: I do not think this would be evidence in any other respect than as showing the situation of the witness, that he has brought suit against one of the plaintiffs or is in litigation with him. He is making a claim, has a suit, he is witness and you may ask him his relation to the parties. The evidence is admitted.

Under this admission the defendant testified that suit had been brought in the Court of Common Pleas in Bradford county against Sheriff Layton in the name of Brown and Avery, and that the suit was pending untried.

In the plaintiffs' rebuttal case:

The plaintiffs' counsel offer in evidence judgment in Wyoming Common Pleas, No. 408 April term, 1877, E. F. Avery against Cyrus Avery, together with the testatum fieri facias and the return. Also, judgment No. 409, with the note, testatum fieri facias from Wyoming county, and the return of the sheriff upon it showing most of the goods were sold to E. F. Avery and A. R. Brown: For the purpose of showing that these are the two notes and judgments alleged in the indictment as being fraudulent and made in conspiracy between Cyrus Avery and Edward F. Avery for the purpose of defrauding the creditors of Cyrus Avery; to identify these judgments and notes as the ones named in the indictment.

The defendant's counsel object to the evidence offered: (1) that it is immaterial and irrelevant; (2) that it is not rebutting to any testimony given by the defendant to the defence to this bond.

By the court: We will admit this evidence. It is not for the purpose of going back and showing a conspiracy, but relating to matter cited in the indictment and in the bond also. I think it is admissible for the purpose of showing that there was something to indemnify against, and whether the indemnity was a valid one or not is another question. The evidence is admitted.

The court, ELWELL, P.J., instructed the jury and answered the points presented as follows:

As the case stands to-day the only object is to ascertain whether the bond when given was a valid obligation, and the verdict which this jury is to render is upon that point. You have nothing to say in regard to any amount which may be recovered upon the bond, if the plaintiffs are entitled to recover, but to pass upon the subject simply whether these plaintiffs have a right to hold that bond in order to be indemnified against any suit which may be brought against them in trespass. Therefore, the verdict will simply be in favor of the plaintiffs if the jury find it was a valid one, and in favor of the defendant if they find it was invalid.

The history of the case, as we learn from the evidence, is that at April term, 1877, E. F. Avery entered two judgments against his father, Cyrus Avery, for the amounts which you have heard mentioned here; one judgment for fifteen hundred dollars, and one for two thousand dollars with some payments indorsed upon it. On the judgments entered upon those notes writs were issued from this court to Bradford county and placed in the hands of the sheriff to levy upon the property, a list of which has been read in your hearing, and which was sold some time in the spring of 1877. [These plaintiffs, being creditors of Cyrus Avery, alleged that those judgments were given for a fraudulent purpose; that they were not bona fide; that it was a transaction between father and son; and that the father having become embarrassed in his business transactions, in order to make a feather bed to rest himself upon, got his son to agree to cover up the property so that the creditors could not reach it.] Under that allegation ...