habeas corpus by a judge in vacation or at chambers in his discretion will subject him to the statutory penalty; but there is authority for the proposition that the chancellor and judges may refuse a proper application for the writ if applied for in term time, and the penalty will not attach: See Rez v. Hobhouse, supra; Yates v. Lansing, 5 Johns. 282; Matter of Ferguson, 9 Id. 239; Ex parte Ellis, 11 Cal. 226. The subject of this note will be found discussed in Church on Habeas Corpus, secs. 92 96.

BOWERS v. BOWERS.

[26 PENNSYLVANIA-STATE, 74.]

ADMINISTRATION OF DECEDENT'S ESTATE RESEMBLES OFFICE; but if it be not an office, it is strictly a trust, and as such is not to be purchased for a price which creates in the trustee an interest adverse to that of the cestui que trust.

CONTRACT TO PURCHASE OFFICE OF ADMINISTRATOR, from one who has a lawful right to such trust, is against public policy and void. The law will not support such a consideration for an agreement.

ASSUMPSIT by George Bowers against William Bowers. Romulus J. Bowers died in 1851 intestate, and was indebted to plaintiff, his father, on two promissory notes. Defendant agreed if plaintiff would renounce his right to letters of administration on decedent's estate, and permit and procure the same to be issued to defendant, that he would assume and pay the amount of the notes plaintiff held against the estate. Plaintiff complied. Verdict for plaintiff, and defendant moved for a new trial and in arrest of judgment. Rule for new trial was discharged and judgment arrested. Defendant appealed.

F. C. Brewster, for the plaintiff in error.

W. S. Price and G. W. Thorn, for the defendant in error. By Court, WOODWARD, J. The consideration of the contract sued on was the purchase of the office of administrator from him upon whom the law devolved the right to it, and the only question in the record is, whether that is such a consideration as the law will support. I call it an office, not because it is so strictly, but because it very much resembles one, and is frequently so called in the books. An office is a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging. An administrator is appointed by a public officer, under his seal of office, to exercise a trust and perform duties which are carefully defined by law, and which affect both public and private interests, and his compensation is measured by legal standards, though not

defined in the fee-bill. In Beck v. Stitzel, 21 Pa. St. 522, it was held that the words were actionable without proof of special damage, which imputed to an administrator "a positive and fraudulent breach of his official oath." If public policy forbids traffic in the office of postmaster, as was decided in Filson v. Himes, 5 Id. 456 [47 Am. Dec. 422], it will, for superior reasons, interdict barter in respect to the more sacred trust of administration.

But if administration of a decedent's estate be not an office, it is strictly a trust, and as such is not to be purchased for a price which creates in the trustee an interest adverse to the cestui que trust. On this point we cannot do better than adopt the reasoning of the learned judge who tried the cause.

It is true, a creditor may administer his debtor's estate, and if William made himself a creditor by assuming the debts which George held against the estate, that was not the disqualifying circumstance. The administration would nevertheless be effectual and valid. But by agreeing to pay George the full amount of his debts, without regard to the sufficiency of the assets, William made a contract that was prejudicial to other creditors, for he bound himself so to administer the estate so as to indemnify himself. If all the debts could not be fully paid, he had a separate or peculiar interest that this one should be, and thus he placed himself in possible antagonism to those whose interests he was bound to represent and guard. A mere creditor administrator has an interest that his debt should be fully paid, but he has contracted for no preference over others. His interest is common with them, and the nearer he can bring the assets to full payment the better for them.

The question here is not upon the legality of the administration, but upon the sufficiency of the consideration for the defendant's promise; and as that in its very nature endangered the purity of the trust, the law will not sanction it.

The case of Hind v. Holdship, 2 Watts, 104 [26 Am. Dec. 107], much relied on in the argument, is in no respect analogous. An assignee promised his assignor that he would pay certain creditors, not as a means of obtaining the assignment, but because the assignor wished to prefer them. The assignment, without any expression in it of the desired preferences, was held to be a sufficient consideration of the promise. The point ruled here did not arise, and was not decided in that case.

On the whole, we are of opinion that the court did right in arresting the judgment, and their order is affirmed.

CONTRACTS FOR SALE OF OFFICE ARE VOID, AS AGAINST PUBLIC POLICY: Outon v. Rodes, 13 Am. Dec. 193; Salling v. McKinney, 19 Id. 722; Groton v. Waldoborough, 26 Id. 530, and note 532.

CONTRACTS TO PROCURE OFFICIAL APPOINTMENT ARE VOID, AS AGAINST PUBLIC POLICY: Filson v. Himes, 47 Am. Dec. 422; Faurie v. Morin, 6 Id. 701.

SMITH V. GRIM.

[26 PENNSYLVANIA STATE, 95.]

OWNER'S FRAUDULENT CONVEYANCE OF LAND IS GOOD AS AGAINST HIM AND HIS HEIRS, and bad only as against creditors.

IF OWNER CONVEYS LAND IN FRAUD OF HIS CREDITORS, AND DIES, HIS HEIRS ARE NOT NECESSARY PARTIES to a judgment against his personal representatives, in order to charge the land with decedent's debts. SHERIFF'S DEED IS COMPETENT EVIDENCE FOR Defendant IN EJECTMENT, although acknowledged after suit was brought, if the sale was prior to the commencement of the action.

TENANT OF SHERIFF'S VENDEE, TAKING POSSESSION OF PREMISES BETWEEN DATE OF SALE and acknowledgment of deed, cannot be treated as an intruder, where the true owner comes in and defends his possession. EJECTMENT, brought by Daniel Smith and wife against Joshua Grim and Andrew Giltner, to recover a tract of land, of which John Notestein was the owner, and who, on March 9, 1844, conveyed it by deed to Catharine Fry, who was married to Smith in 1847. The consideration named in the deed was five hundred dollars, but no money was paid. Catharine's services for many years in Notestein's family were alleged to be the real consideration for the conveyance. On March 11, 1844, Notestein made a general assignment for the benefit of his creditors, but the proceeds of the property assigned were only sufficient to discharge the liens against his real estate and pay the expenses of the trust. Notestein lived on the premises until he died in 1846. At the time of the conveyance to Catharine, Notestein was indebted to Grim, one of the defendants, for which he brought suit against his administrator and recovered judgment. Grim had the premises in dispute levied on, condemned, and sold at sheriff's sale on March 18, 1850. He bought them himself, and a deed was duly acknowledged to him by the sheriff on May 2, 1850. On March 21, 1850, Giltner, one of the defendants, entered upon the premises under a lease from Grim. This action was instituted on May 1, 1850. Verdict for defendants, on the ground that the conveyance was fraudulent as to creditors. The admission of the judgment in favor of Grim against Notestein's ad

ministrator, and of the sheriff's deed to Grim under it, were assigned as error.

Stiles and R. E. Wright, for the plaintiff in error.

King and Longenecker, contra.

By Court, LOWRIE, J. The court left to the jury the question of the fraudulency of the conveyance of Notestein to Mrs. Smith, in the very terms of the fourth point put by his counsel, and they found the fact against her. We therefore assume this fact as settled, in considering the other points.

The conveyance is good as against Notestein and his heirs, and bad only as against creditors. His heirs have and can have no interest in the process by which the creditors seek to recover it or its value from the fraudulent vendee, and therefore, they were not necessary parties to the suit against the vendor's administrators, so far as it could be used to reach this land. The record of the judgment, and the sheriff's sale and deed made under it, were therefore competent evidence. And the competency of the deed is not affected by the fact that it was not acknowledged until the next day after this suit was brought, for the sale was before. The tenant cannot be treated as an intruder where the true owner comes in and defends his possession. Judgment affirmed, and record remitted.

CONVEYANCES, FRAUDULENT AS TO CREDITORS: Hutchison v. Kelly, 39 Am. Dec. 250, and note 263; Trimble v. Turner, 53 Id. 90, and notes 94; Forsyth v. Matthews, Id. 522; Lisloff v. Hart, 57 Id. 203; Oriental Bank v. Haskins, 37 Id. 140; Feigley v. Feigley, 61 Id. 375; Fowler v. Stoneum, 62 Id. 490, and numerous citations in note thereto 505; Snodgrass v. Andrews, 64 Id. 169; Clark v. Depew, Id. 717.

FRAUDULENT SALE AS TO CREDITORS DOES NOT BIND THEM, BUT DOES BIND PARTIES to such contract, and the heirs of the debtor or grantor, and cannot be avoided or set aside by them: See note to Stewart v. Kearney, 31 Am. Dec. 484; McGee v. Campbell, 32 Id. 783; Boyd v. Barclay, 34 Id. 762, and note thereto 765, discussing at length the rights of parties to illegal or fraudulent transactions: Scott v. Purcell, 39 Id. 453, and numerous other cases cited in the note to Fowler v. Stoneum, 62 Id. 505.

THE PRINCIPAL CASE WAS CITED in Drum v. Painter, 27 Pa. St. 149, to the point that a conveyance of land made with the intent to hinder, delay, and defraud creditors is good against every interest except that intended to be hindered, delayed, or defrauded. Neither the grantor nor his heirs or devisees can gainsay the deed. Where a creditor seeks to recover the estate from a fraudulent grantee, he may levy upon and sell it, if his judgment is against the personal representative, without notice to the widow and heirs, for they are strangers to the contest. And in Soles v. Hickman, 29 Id. 346, it was cited to the point that if the ancestor parted with his title in fraud of creditors, his heirs cannot inherit; and on a remedy sought against it, they are not entitled to notice.

AM. DEC. VOL. LXVII-26

ALBRIGHT V. LAPP.

(26 PENNSYLVANIA STATE, 99.]

JUSTICES OF PEACE DERIVE ALL THEIR JUDICIAL POWERS FROM LEGISLA

TION. They exercise no common-law powers.

JUSTICE OF PEACE, IN PENNSYLVANIA, HAS NO POWER TO SUMMARILY PUNISH PERSON FOR CONTEMPT committed before him.

REMEDY OF JUSTICE OF PEACE FOR CONTEMPT COMMITTED IN HIS PRES ENCE is to bind the contumacious party over to answer at court, and to be of good behavior meanwhile.

TRESPASS vi et armis by Ralph Lapp against Henry Albright, a justice of the peace. Lapp was committed to jail for contempt in using alleged insulting and contemptuous language during some proceedings before the justice. Plaintiff on the trial proved the imprisonment, and gave in evidence the warrant of commitment charging him with abusive language, etc. He then offered to prove the conversation, and all matters that took place, for the purpose of showing that no contempt was committed. This was admitted by the court under defendant's exception. The court charged that a justice of the peace had no power to-commit for contempt. Plaintiff got a verdict for fifty dollars, and defendant removed the record by writ of error, in which the admission of the evidence above stated was objected to.

Lear, for the plaintiff in error.

Dubois, for the defendant in error.

By Court, WOODWARD, J. In England, where the office of justice of the peace is invested with more dignity and a larger jurisdiction than with us, the power of punishing contempts by attachment and summary conviction seems not to belong to it. Even the sessions, which is a court of record, held by two or more justices, one of whom must be of the quorum, has not power to punish disobedience of an order of court by attachment: King v. Bartlett, 2 Sess. Cas. 291.

Blackstone, in his commentaries, limits this power to what he styles the "superior courts of justice," and thinks it was derived to them through the medium of courts of equity, the whole of whose proceedings were, till the introduction of sequestrations, in the nature of process of contempt acting only in personam, and not in rem.

In Pennsylvania there has been no legislative grant of this power to justices of the peace. The act of June 16, 1836, like that