Collyer v. Collyer , 38 Pa. 257 ( 1861 )

The opinion of the court was delivered,

by Lowrie, C. J.

— This case was evidently tried improperly, and therefore it comes up before us in a shape that does not entitle it to decision by us. The preliminary question of the cause, the defendant’s liability to account, was not distinguished from the question how much would be due on the account, and therefore there was no preliminary decree for or against the right to an account, and the bill, answers, and testimony contain an indiscriminate mixture of allegations and evidence on both these questions, and we have nothing to show which of them was decided against the plaintiff.

Tbe preliminary question ought to have been decided first, and on the pleadings it would have been decided in favour of the plaintiff, but for the defendants’ allegation that the plaintiff had assigned to the defendant Collyer all his interest. The fact of the assignment thus became the preliminary question, and the evidence ought all to have been directed to it. The parties have made that a very complicated question, and we think the decision of if ought to have been referred to a jury, unless the parties prefer a master or referee. We are quite unwilling to decide it. If the part of assignment be proved as alleged, whether made bond fide or with the fraudulent purpose of both parties to make use of it as a means of defrauding the railroad company, then the bill ought to be dismissed; but if not made at all, there ought to be a decree for an account, and then the case ought to go to a master to take the account. That this course may be pursued, we must reverse this decree.

Decree. — This cause came on for hearing on an appeal from the decree of the Court of Common Pleas of Philadelphia dismissing the plaintiff’s bill, and was argued by counsel, and now, after due deliberation had thereon, it is ordered and decreed that the said decree of the Common Pleas be reversed, and that the cause be remitted to the said court to be further proceeded in according to the course of equity practice. And it is further ordered that on the trial of the issue relative to the assignment, the parties have leave to read in evidence the testimony already taken by the examiner, so far as the same is relevant to said issue.