Gratz v. Philips

Supreme Court of Pennsylvania

Gratz v. Philips

2 Pen. & W. 410

DecidedMay 15, 1831

StatusPublished

This text of 2 Pen. & W. 410 (Gratz v. Philips) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gratz v. Philips, 2 Pen. & W. 410 (Pa. 1831).

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Opinion

The following opinion was delivered by

G-ibsoN, C. J.

—Concurring with the judge who tried the cause' as to the merits, it is necessary, but to consider how far the verdict is affected by Mrs. Philips’ coverture; and on this point, I understand my brother Kennedy joins in the opinion I expressed when the case was here before. But taking for granted what it seems to me cannot well be controverted, that the verdict cannot be sustained against all the defendants, on the foundation of the general and inherent powers of the jury, may it not be sustained against all who had capacity to bind themselves on the foundation of the agreement “to take no advantage as to, the form of suit, or the liability of the parties in it?” The object of this clause was manifestly.to preclude objection for want of general and uniform liability; and we are to interpret it so as to give it its greatest effect. Such was the exposition of it on another occasion, 14 Serg. & Rawle, 152, when it was held that a general report of referees would have been good against Mrs. Cohen, by force of the agreement, though it was admitted that she had received no part of the trust fund. And the present verdict would unquestionably be good against Mrs. Philips,--were she, like Mrs, Cohen, capable of making an agreement. The other defendants, however, being indisputably bound, are entitled to no advantage from her disability; and what remains is to settle the mode of giving entire effect to the agreement. This, it seems to me, may be done by entering a nol-le proseqid, as to Mrs. Philips, and signing judgment against the other. The usual objection to this as a remedy for error in joinder of action, cannot be made in a case like the present, where the do-1 fendants are estopped by their agreement from asserting that Mrs. Philips, was not originally liable, or that her coverture does not operate a subsequent personal exemption. Tire powers of the jury [412]*412under the agreement, are as' extensive as were those of the arbitra», tors who might unquestionably have awarded in her favor, and against all the rest; and if a jury might dispose of her case separately, it would be useless to incur the expense of another trial in obtaining a result that may be had without it.

KENNEDY, J. — Concurred with the Chief Justice. Ross, J. and Huston, J. thought that a nolle prosequi, was not necessary. Rogers, J. — Having been of counsel in the cause, took no part

The plaintiff then entered a nolle prosequi, as to Mrs. Philips, and the court affirmed the judgment on the verdict against the other defendants.

Judgment affirmed.

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The following opinion was delivered by

G-ibsoN, C. J.

—Concurring with the judge who tried the cause' as to the merits, it is necessary, but to consider how far the verdict is affected by Mrs. Philips’ coverture; and on this point, I understand my brother Kennedy joins in the opinion I expressed when the case was here before. But taking for granted what it seems to me cannot well be controverted, that the verdict cannot be sustained against all the defendants, on the foundation of the general and inherent powers of the jury, may it not be sustained against all who had capacity to bind themselves on the foundation of the agreement “to take no advantage as to, the form of suit, or the liability of the parties in it?” The object of this clause was manifestly.to preclude objection for want of general and uniform liability; and we are to interpret it so as to give it its greatest effect. Such was the exposition of it on another occasion, 14 Serg. & Rawle, 152, when it was held that a general report of referees would have been good against Mrs. Cohen, by force of the agreement, though it was admitted that she had received no part of the trust fund. And the present verdict would unquestionably be good against Mrs. Philips,--were she, like Mrs, Cohen, capable of making an agreement. The other defendants, however, being indisputably bound, are entitled to no advantage from her disability; and what remains is to settle the mode of giving entire effect to the agreement. This, it seems to me, may be done by entering a nol-le proseqid, as to Mrs. Philips, and signing judgment against the other. The usual objection to this as a remedy for error in joinder of action, cannot be made in a case like the present, where the do-1 fendants are estopped by their agreement from asserting that Mrs. Philips, was not originally liable, or that her coverture does not operate a subsequent personal exemption. Tire powers of the jury [412]*412under the agreement, are as' extensive as were those of the arbitra», tors who might unquestionably have awarded in her favor, and against all the rest; and if a jury might dispose of her case separately, it would be useless to incur the expense of another trial in obtaining a result that may be had without it.

KENNEDY, J. — Concurred with the Chief Justice. Ross, J. and Huston, J. thought that a nolle prosequi, was not necessary. Rogers, J. — Having been of counsel in the cause, took no part

The plaintiff then entered a nolle prosequi, as to Mrs. Philips, and the court affirmed the judgment on the verdict against the other defendants.

Judgment affirmed.

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2 Pen. & W. 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gratz-v-philips-pa-1831.

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