Bonesteel v. Sullivan

• Decision Date: 08 October 1883
• Citation: 104 Pa. 9
• Parties: Bonesteel <I>versus</I> Sullivan.
• Court: Pennsylvania Supreme Court

104 Pa. 9

Bonesteel versus Sullivan.

Supreme Court of Pennsylvania.

May 23, 1883.

October 8, 1883.

May 23d 1883.

Before MERCUR, C. J., GORDON, PAXSON, STERRETT, GREEN and CLARK, JJ. TRUNKEY, J., absent

ERROR to the Court of Common Pleas of Warren county: Of January Term 1883, No. 39.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

D. L. Ball (with him C. C. Thompson), for the plaintiff in error.—A deed or mortgage given to hinder or defraud creditors is void only as to those parties intended to be defrauded. It is valid between the parties. The mutual fraud is a good consideration. The plaintiff did not require to bring in the alleged fraudulent transaction in order to make out his case, and the defendant cannot set up his own fraud as a defence: Williams v. Williams, 10 Cas. 312; Gill v. Henry, 14 Nor. 388; Sherk v. Endress, 3 W. & S. 255; Evans v. Dravo, 12 Harris 62; Hendrickson v. Evans, 1 Cas. 441.

Brown & Stone, for the defendant in error.—No exceptions having been filed to the charge in the court below, and no request made to file it, and the charge not having been filed until after the removal of the record to this court, and then not by the judge, but by counsel, it is no part of the record, and cannot be assigned for error. The 4th section of the Act May 8th 1876, relates only to the notes of testimony, and contains no reference to the charge. The method of getting the charge on the record for the purpose of assigning error thereto remains as regulated by the Acts of 1806 and 1856, and is only by exception or request of a party, promptly made: Meese v. Levis, 1 Harris 385; Bratton v. Mitchell, 5 Watts 69; Holden v. Cole, 1 Barr 303; Alexander v. Weidner, 1 Norris 452; Lehigh Valley R. R. Co. v. Hall, 11 P. F. S. 361; Lancaster v. De Normandie, 1 Whart. 49. There is no error in the rulings or charge. The court followed the well settled principle that whenever the plaintiff requires the aid of a decree of the court to enforce a contract tainted with fraud or founded on an illegal consideration, he cannot recover. The plaintiff must show that he stands on fair ground when he calls on a court of justice to administer relief to him: Booth et al. v. Hodgson et al., 6 T. R. 409; Mitchell v. Smith, 1 Binney 119; Swan v. Scott, 11 S. & R. 163; Miller's Appeal, 6 Casey 492.

The mortgagee on his sci. fa. requires the aid of a judgment or decree of the court, as much as if he was suing on the bond or on a note. On the bond or a note given for an illegal consideration he could not recover. If the consideration would not support a parol promise, it would not support a specialty: Lestapies v. Ingraham, 5 Barr. 71; Morris Run Coal Co. v. Barclay Co., 18 P. F. S. 174.

Ball, in reply. — The charge of the court was filed in accordance with the provisions of the Act of May 8th 1876, § 4, P. L. 140 and became part of the record. In such case exceptions to the charge are not necessary, but assignments may be made of any error apparent in the record: Act of March 24th 1877, § 2 P. L. 39; Chase v. Vandergrift, 7 Nor. 217; Wheeler v. Winn, 3 Sm. 122; Brown v. Caldwell, 10 S. & R. 114. Since the appointment of official stenographers, the reasons given in Meese v. Lewis, 1 Harris 384, have ceased to exist.

Mr. Justice GORDON delivered the opinion of the court, October 8th 1883.

We think the court below erred in not admitting in evidence, as offered on part of the plaintiff, the exemplification of the records of the District Court of the United States for the northern district of New York. It is true that the certificate of the clerk does not state in terms, that the exemplification thus offered contains the whole record of the case therein stated, but this is not essential, for, as said, in the case of Edmiston v. Schwartz, 13 S. & R. 135, the court will not pronounce such evidence secondary, where it does not appear on the face of it that better remains to be produced. Hence, where the certificate stated that it was "truly copied from the records of the Court of Common Pleas of Cumberland county," it was held sufficient on which to admit the exemplification. The case also of Ferguson v. Harwood, 7 Cranch 408, was cited as authority in point, in which it was held that it was sufficient to admit a paper in evidence that the officer had certified that "it was truly taken from the records of the proceedings of Prince George's county court." We may also refer to Voris v. Smith, 13 S. & R. 334, as a case somewhat similar to those already cited. When we compare the certificate now before us with those just referred to, we certainly find it quite as full...