UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty library FOREWORD This volume is an exact photo-reproduction of an original copy of S. M. Harrington's DELAWARE REPORTS VOLUME I As a copy of the original is practically unobtainable, this volume is offered to enable law libraries to complete their collection of Delaware Reports. The edition has a limited printing. Buffalo, N.Y. DENNIS & CO., INC. August, 1952 EEPOETS OF CASES ARGUED AND ADJUDGED IN THE SUPERIOR COURT AND COURT OF ERRORS AND APPEALS OP THE STATE OF DELAWARE FROM THE ORGANIZATION' OF THOSE COURTS UNDER THE AMENDED CONSTITUTION, WITH REFERENCES TO SOME OF THE EARLIER CASES. PUBLISHED AT THE REQUEST OP THE GENERAL ASSEMBLY. BY SAMUEL M. HAERINGTON, ONE OF THE JUDGES OF THE SAID COURTS. Stare deems. LEG. MAX. VOL. I. WILMINGTON, DEL.: MERCANTILE PRINTING CO., .LAW BOOK PUBLISHERS. 1901. , 45 \1 TABLE OF CASES. A. Page. Abbot's use v. Stockley 134 Adams' admr. v. Burton, shff ... 188 Allen & Co. f. Babcock 348 Adams et ux, Cor dry v 439 Alice, Parson's admr. v 71 Ashton, Wagstaff v 503 B. Baily u. Seal 232, 367 Baily i;. M'Dowell 346 Baily v. Capelle 449 Bank v. Cooper's exr 10 Bank v. Gilpin et al 561 Bank v. Simmons 331 Bank r. Houston 225 Banner qui tarn v. Gregg 523 Bauduy v. Bradun 182 Beeson's exr. !/. Beeson's admr. . 106 Beeson's admr. 348 Bailey, Hukill v 448 Bainton et al., Milner v 144 Bennington, Parkins' admr. v. . . 209 Bank, M'Dowell v 27, 369 Beckley, State v 142 Bernard's admx., Tunnel v. ..... 497 Beeson's admr., Beeson's exr. v. . 106 Beeson's exr., Beeson's admr. v. . 394 Biddle, Fiddeman v 500 Biddle, Templeman v 522 Bishop, Wild's admr. v 87 Blackstock, Cazier v 362 Bradun, Bauduy v 182 Breen, Sipple v 16 Brindley et al., Elliott v 364 Broom et al., Roberts v 57 Brown, Bank V. 330 Bush, Turnpike Co. v 44 Busti et al., Budd et al. v 69 Burton, shff., Adams' admr. v, . . 188 Bull's adnif., Polk v. . . 43? I* Page. Cannon's use v. Cannon 324 Carlisle et al. t>. Fleming et al . . . 421 Cazier v 475 G. Gibbons r. Mason 452 Goslin v. Cannon 3 Greer> -v. Lockwood's admr 331 Griffith et ux. t\ Johnson's admr., 136 Griffin v. Reece et ux 50R Groves v. Hickman 33 Grubb t\ Grubb 516 Guthrie v. Morrison 368 Guthrie v. Hyatt 446 Gilpin et al.. Farmers* Bank t?. . . 661 Gregg, Banner v 523 Green, Crawford's lessee v 464 Green's gam., Johnson v 442 Green's earn.. Houston v 442 Griffin, Ringold v 224 H. Hardcastle v. Com. Bank 374 Harris' exr. v. Vickers 6 Hartwell v. MacBeth 363 Hwthorne v. Maguire 530 Hcarn v. Hearn 498 Herdman's use r. Houston 230 Houston v. Green's gam 442 Huggins t;. M'Gregor 447 Huey v. Hcndrixen et al 145 Humphries r. Webster 34 Hunter v. Lank 10 Hukill v. Bailey 448 Hall, Ray v. . .* 106 Harper, Shrewder* v 444 Hannan, Waples' lessee v 223 Hays et al., Ford's lessee v 48 Page. Heather, Scott v 330 Hedges, Ferguson's lessee v 524 Hedges, M'Knight's lessee v 524 Hendrixen, Huey v 145 Hickman, Groves v 33 Hill, Clark v 335 Horsey et al., Bank v 514 Houston, Townsend v 532 Houston, Bank v 225 Houston, State v 230 Houston's admr., M'Clay v 529 Hukill, Wilson's admr. t; 347 Hyatt, Guthrie v 446 Hyndman, Potter v 123 Hynson, Woodlin v 224 J. Jacobs v. Walton 496 Jaques v. Rice 33 Jeyell's use v. Porter 126 Johnson v. Green's garnishee. . . . 442 Johnson v. Farmers' Bank 117 Jones v. Wootten 77 Jaquett, Tatlow v 333 Johnson's admr., Griffith v . . 136 Jones, Easton v 433 K. Killen's use v. Carter 325 Kizer v. Downey 530 Kennedy, M'Dermot 1' 143 King, Eaves' admr. v 141 L. Lambden's exr. v. Morris 22 Lolley v. Needham's exr 86 Lamborn, Erwin v 125 Lank, Hunter v ; 10 Layton, Coulter 494 Larkins' exr., State v. 120 T.ockwood's admr.. Green v 331 Lcgan, Simmons' lessee v 110 Logan, Egbers v 342 M. Maberry & Co. v. Shisler 349 M'Caulley v. M'Caulley 137 M'Call r. Reybold . 146 M'Clay v. Houston's admr 529 M'Dermott v. Kennedy 143 M'Dawell n. Bank 27, 369 M'Glensy & Co. v. M'Lear 466 M'Knight's lessee v. Hedges.... 524 Martin's lessee v. Roach 477 Milner v. Bainton & Co 144 Minus v. Stant ct al 445 Moon's use v. Hall 106 Morris v. Cannon 220 Morris v. Turnpike Co 366 Murphy v. Countiss 143 M'Betlis, Hartwell v 363 TABLE OF CASES. vii Page. M'Clay et al. State v 520 M'Dowell, Samuel's exr. v 108 M'Dowell, Bailey v 346 M'Gregor, Huggins v v 447 M'Guire, Hawthorne v 530 M'Grann ct al., Donelly v 453 M'Lear, M'Glensy & Co. V 466 Massey, Bank v 186 Mason, Gibbons v 452 May, Cooper et ux. v 18 Miller et al., Burton's admr v. . . 7 Miller's admr., Worknot v 139 Mitchell & Quinn, Robinson v. . . 365 Monges, Stevens -v 127 Moore, Rice v 452 Morgan, Brooks v 123 Morrison, Guthrie v 368 N. Newbold v. Polk 335 Newbold v. Ridgway et al 55 Newbold et al. v. Wilkins 43 Newlin v. Duncan 204 Needham's exr., Lolly t' 86 Newbold, Ridgway et al. v 385 Newlin, Duncan v 109 NorriB, Lambden's exr. v 22 P. Parkins' admx. v. Bennington . . . 209 Parson's admr. v. Alee 7 Polk, assignee, v. Bull's admr... 433 Porter v. Sawyer 517 Potter v. Hyndman 123 Prichard'a admr. v. Culver 76 Paine et al., Vannini et al. V 65 Parkins' admx., Bennington v. . . 128 Polk, Newbold v 335 Porter, State v 126 R. Rambo v. Turnpike Co 116 Randel v. Canal Co 151, 233 P Randel v. Wright 34 Randel v. Shoemaker 565 Ray, use Moon v Hall 106 Reading's heirs v. The State.... 190 Reed v. Todd 138 Redden v. Stewart et al 495 Reybold v. Dodd's admr 401 Rice v. Moore 452 Richardson v. Carr 142 Ridgway et al. v. Newbold 385 Ringgold v. Griffin 224 Rhodes v. Silvers 127 Roberts et al. v. Broom et al . . . . 57 Robinson v. Mitchell . Collins .... 216 State, use Cannon v. Cannon's admx 324 State, use Herdman r. Houston, 230 State, use Killen v. Carter's exr., 325 State, use Vickery v. Vickery. . 193 State, use Woods v. Beekley.... 142 State, use Graham v. Wild 499 Stevens v. Monges 127 Stewart r. Cleaver 337 Sawver, Porter v. 517 Scotten. Sipple v 107 Renl. Bailv 232, 367 Shisler. Maberry A Co. t> 349 Shoemaker. Randel r 565 Short et al., Crawford v 356 Silvers, Rhodes v 127 Simmons. Bank 1' 331 Slack. Crawford & Co. V 122 Slack, Whiteman r 144 State. Reading's heirs v 190 Stant et al.. Minus v 445 Stewart et al.. Redden V 495 Stilley et al.. Bird v 339 Stockley's admr.. State V 134 Stoops, Colesberry V 448 Stockton's exr., Booth's exr. v. . 51 T. Tatlow v. Jaquett 333 Templeman v. Biddle 522 Townsend v. Houston 532 Tunnel's use v. Bernard's admr. . 497 Thompson, Broom's lessee v. . . . 343 Thompson, Vandyke's lessee v. . 109 Todd, Reed v 138 Till TABLE OF CASES. V. Page. Vandyke's lessee v. Thompson . . 109 Vannini et al. v. Paine et al . . . . 65 Vickers, Harris's exr. v 6 Vickery, State v 193 W. Waples v. Derrickson 134 Waples v. Clarke's admr 135 Waples v. Waples 474 Waples's admx. v. Waples et al., 392 Waples's lessee v. Harman 223 Waggstaff v. Ashton 503 Washington's exr. v. Richardson, 338 Whiteman v. Slack 144 Wild's admr. v. Bishop 87 Wit. & Phil. Turnpike Co. v. Bush, 44 Wilson's admr. r. Hukill 347 Page. Woodlin et al. v. Hynson 224 Wood's use v. Beckley 142 Worknot v. Millen 139 Wright v. Richardson's admr . . . 323 Walton, Jacobs v 496 Waples, Fooks v 131 Waples, Coleman -v 196 Webster, Humphries v 34 Wild, State V. . '. 499 Wild's admr., Bishop v 87 Wil. & Phil. Turnpike Co., Rambo v 116 Wil. & Kennet Turnpike Co., Morrison v 366 Wilkins, Newbold & Co. v 43 Wootten, Jones v 77 Wright, Randel v 34 REPORTS. THE AMENDED CONSTITUTION, so far as it relates to the Judicial Department, went into operation on the third Tuesday of January, in the year of our Lord one thousand eight hundred and thirty-two; and the courts were filled up by the appointment of KENSEY JOHNS, JR., of Newcastle county, Chancellor. THOMAS CLAYTON, of Newcastle county, Chief Justice. JAMES R. BLACK, of Newcastle county, } PETER ROBINSON, of Sussex county, > Associates. SAMUEL M. HARRINGTON, of Kent county, ) ROBERT FRAME, Attorney General. THE SUPERIOR COURT held its first session at Georgetown, in Sus- sex county, on Monday the ninth of April, 1832. SUPERIOR COURT. 1832. JOHN GOSLIN vs. ISAAC CANNON. A deposition to a leading interrogatory will not be suppressed at the trial if full opportunity has been given to object to it before. Words spoken to a magistrate, though slanderous and malicious, are not actionable: but, if the slander be proved aliunde, they may be given in evi- dence to aggravate the damages. CAPIAS case. Plea, Not guilty. Special Jury. This was an action on the case for slanderous words spoken by deft, of the plff., imputing to him the crime of burning a house and barn. The declaration contained twenty-five counts laying the words spoken in various forms; one of them thus: After the inducement and colloquium. " I would give $500, if J could believe that John Goslin did not do it," meaning, &c. Frame for plff. offered in evidence the deposition of William To- bin, taken under a commission out of this court to a commissioner in Baltimore. It was objected to by Mr. Bayard for deft.: 1st, on the ground of surprise, there being no entry on the docket of the return of this deposition; and 2ndly, because the interrogatories were leading. The second interrogatory, particularly objected to, was as follows: " Second. Had Isaac Cannon the brother of Jacob Cannon any conversation with you, or any other person or persons in your pre- sence, relative to a house and barn which had been burned down? If yea, state the time of that conversation, or whether it was before the - day of 1829; and whether in that conversation the said Isaac Cannon stated that he did believe that John Goslin set fire to said houses or one of them, and which ; whether he stated that John Goslin was the cause of said houses being burned down ; whether he stated that he would give $500 if he could think otherwise, and every other matter or thing that you heard said Isaac Cannon say relative to the burning of said houses, and as to the said John Goslin's being by him charged or accused therewith according to the best of your knowledge, remembrance and belief, fully and at large." Frame for plff. The deposition was regularly returned and filed more than one year ago, and published. So far as the party could possibly get it filed, it was filed. The envelope is marked "filed" 4 GOSLIN vs. CANNON. by the Prothonotary, though the entry of such filing is not made upon the record. The docket entry is not the filing, it is a mere memorandum of the filing, which is the placing the paper on the iiles. As to the other point, the interrogatory is not a leading one; and, if it were, the objection is both too late and informally taken. It ought to have been made in writing at the earliest possible stage of the cause; if allowed now, it will operate as a trap. The jury are sworn, the trial progressing, and there is now no possibility of pro- curing another deposition, which might have been done if this had been objected to in due time. The other side had full notice of the time of filing these interrogatories and opportunity to file cross inter- rogatories. This is admitted. Rogers for deft. I had no knowledge of this deposition until this morning. We could have no notice of the return of the commission but from the record, and there is no entry of it on the record. We are therefore not too late. But, if we had notice, this is the regular time of objecting to the testimony. An objection to testimony was never made in any of our courts of law at any other time or in any other manner. The practice is different in Chancery, where, upon objection made to leading interrogatories, the matter is referred to a master for his report, Kefers to a case in the Com. Pleas where a deposition was objected to at the trial becaiise' the commission was directed to Joseph Douglass and returned by Joseph S. Douglass, and the deposition was rejected. Depositions will be suppressed if too particular or leading; so where the answer yes or no would be conclusive. 1 Ear, Chy. 320; I Starkie Ev. 124. Per C. J. CLAYTON. That remark of Lord Ellenborough is not always true. Vide Nicholls vs. Dowding, 1 Stark. N. P. C. 81. Frame asked leave to reply to the authorities cited. The objection is not to a defective deposition as of heresay matters, nor to a commission defectively executed or returned, as where it is addressed to one person and returned by another; but the objection is to the interrogatory alone, and seeks to exclude a competent depo- sition properly taken and returned, on thfe ground of an irregular in- terrogatory. Now this interrogatory was filed, and notice of it given to the other side a year ago. Even in Chancery, if you omit to ob- ject to interrogatories in due time, you are precluded at the trial. Every good interrogatory must direct the mind of the witness to the subject matter of inquiry, and it is difficult to say precisely, what is a leading question. 1 Stark. 124. Equity Draftsman. Bayard. You may direct a witness' mind to the point, but not ask particulars, or suggest to him an answer. This is undoubtedly a leading interrogatory. I had no knowledge of the deposition until this morning. It would be a good practice to require exceptions to bo filed to interrogatories before commission issued, but there is no srch practice. In our practice, a party frames his interrogatory at hit peril just as he puts a question to a witness at the trial. By the Court. We are of opinion that this deposition ought not to be suppressed. We incline to think the interrogatory is a leading one, but it is a very different question whether the deposition should now be suppressed on this account. GOSLIN vs. CANNON. 5 This deposition has been returned for twelve months. The party has submitted to it, taken no exceptions, but permits the jury to be drawn. If this course prevail, there is an end of reading depositions before a jury. The party might protest against an interrogatory and then the other side would take it at his peril. The question must be objected to at the time; therefore, if in taking the deposition of a witness a leading question be put and answered, it cannot afterwards be excepted to at the trial. Sheeler vs. Speer, 3 Binn. 130. Where depositions have been taken in an ancient suit to perpetuate testimo- ny, it cannot be objected that the answers were given to leading in- terrogatories, since the party to the proceedings might have objected to them, and have had them expunged, instead of which he allowed publication to pass, and the evidence to be exemplified. 1 Stark. Ev. 270. The deposition was admitted. In the course of the examination of witnesses, the plff. called Dr. John Gibbons, a justice of the peace, to prove certain declarations made to him by the deft, on the occasion of swearing articles of the peace against the plff. It was objected that this testimony if at all admissible, was only evidence to show express malice, and could not be the foundation of an action it being a privileged communication. The direction of the Court was asked on this point. 1 Vin. Ab. 390; 4 Co. R. 14; 3 Esp. R. 33; 5 Esp. R. 109; 4 Yeates, 507; 5 Johns, 509. The case was very fully argued by Lay ton and Frame for the plff., and Cullen, Rogers and Bayard, for the deft, and The Court, by the Ch. Jus., charged the jury as follows: CLAYTON, C. J. " The words declared upon in this case impute a crime to the plff., and are in themselves actionable. The law in such case presumes malice, and it is not necessary to prove express malice to entitle the plff. to a verdict, for the law implies that he has received some damage. As the law is now settled, it may be laid down as a general rule, that wherever words are calculated to impress upon the minds of the hearers a suspicion of the plff's. having committed a criminal act, such an inference may and ought to be drawn whatever form of ex- pression may have been adopted, whether the words spoken impute such criminal act directly or indirectly. And it is not necessary to prove the precise words alledged in the declaration; but it is suffi- cient to prove the substance of them. The substance of the slander imputed here is, that the plff. burned down the house and bam in question, or caused it to be done. The words must be spoken in the same manner; for instance, interrogative words proved, will not support words alledged affirmatively; or words alledged to have been spoken to the plff. are not supported by words proved to have been spoken to a third person of the plff. It is objected to the evidence of Mr. Wright, that it does not certainly appear that the conversa- tion detailed by him, took place before the commencement of the action. In order to prove the slander, it ought to appear that the words were spoken before the action brought. This is a matter of which you are to judge from the testimony of this witness. We may t; HARRIS' EX'R. vs. VICKERS. be allowed to say, if the words spoken to Mr. Wright were spoken before the action brought, they in substance do support the allegation iu some of the counts of the declaration. If they were not spoken before the action brought, then they can be only used in proof of express malice, and to aggravate the damages on the ground, that every repetition of a slander is evidence of malice, and may be used to aggravate damages. Words spoken in the course of a judicial trial, or in a legal pro- ceeding before a justice of the peace, either in a civil or criminal cnse, are not in themselves actionable; and, therefore, the only use that can be made of the testimony of Dr. Gibbons, will be to increase the damages, in case you should be of opinion that the slander has been proved by any other witness. Even if the deft, instituted this proceeding before the justice from the most malicious motives, it would not itself be the foundation of an action of slander; but, if the slander is proved by other testimony, then what he said to Dr. Gib- bons, if you believe he was actuated by malice or a design to injure the plff. may be used in this action to show the design and intention of the words spoken to other witnesses. You alone are to j udge of the credit to be attached to the witnesses. Tf you give credit to Jacob Wright or William Tobin, the slanderous words imputed to the deft, or those in some of the counts in the dec- laration have been proved; and, consequently, the plff. is entitled to your verdict for damages. ' What those damages ought to be it is not for us to say. The law has made you exclusively the judges; and you, exercising a sound discretion, are to say what redress the plff. ought to receive for the wrong which has been done him. We have already told you that the words imputed to the deft, are in them- selves actionable; that wherever one man uses towards his neighbour such words as these, the law implies malice, and it presumes that the party thus slandered is injured, and is entitled to damages. If, in addition to the speaking of. the words, the deft, be actuated by ex- press malice, then you may give exemplary or vindictive damages. If Cannon uttered these words designedly to prejudice or injure the plff., that is what the law calls express malice. You will therefore in considering all the testimony in this case, ascertain whether the deft, did design in uttering the words to injure the plff. ; and, if he did, you will be warranted in giving vindictive damages. What shall be the amount of the damages you are to judge from all the evi- dence." The jury gave a verdict for the plff. Damages $2,009. JAMES HAKRIS Executor of BENTOX HARRIS vs. NATHAN VICKERS. Indebitatus assumpsit will not lie by the administrator of tenant for life for an apportionment of the rent. Plff. must declare specially. CAPIAS case for use and occupation. Plea non assumpsit. Issue. Layton for plff. exhibited the letters testamentary and proved BURTON'S ADM'R. vs. DERRICKSON'S ADM'R. 7 the leasing by testator to deft, at $100 per year, from January to Jan- nary. B. Harris died in June 1830. He here rested, when Cullen for deft, moved a nonsuit. Eent follows the reversion. If lessee die before rent due, the rent goes to the heir with the in- heritance. Toller Ex. 177. The proof shows that Benton Harris was the owner of this property; on his death it descended to the heir ; the heir, therefore, and not the ex'r., is entitled to the. rent. The action is assumpsit for use and occupation, to recover a reason- able sum for the occupation of the house of plff. But when the rent fell due, the house belonged to the heir of Benton Harris, and not to plff. his personal representative. Layton. Benton Harris was tenant for life, and the suit is to re- cover that portion of the rent which fell due in his life time. We go for an apportionment. By the Court. CLAYTON, C, J. If Benton Harris were tenant for life, his ex'r. could not maintain a general indebitatus assumpsit for an apportionment. He must count in a special action on the case under the act of assembly. It was so decided in the case of Joseph Parsons, adm'r. vs. Allee, in Kent, at the Nov. Term, 1831. (a). On the other point, we are of opinion that an ex'r. cannot recover accruing rents after the death of the testator; and, therefore, there must be a Judgment of nonsuit EBE WALTER, Adm'r. of PBMBEBTON BURTON vs. JAMES F. MILLER and NANCY DERRICKSON. Trover will lie against an administrator personally for a conversion by him, though the property came to him with the estate of his intestate. CAPIAS Trover. Pleas, Not guilty, and Act of limitations. Issues. This was an action of trover brought for four negro slaves. The (a) " Joseph Parsons, being tenant for life, in his lifetime, let to Abraham Allee a tract of land by parol, from year to year, rendering rent one-third of the corn, and two-fifths of the wheat. The letting was from the 1st of March. Parsons died on the 20th of October. To recover under the Stat. 1 1 Geo. 2 Ch. 19., a proportion of the rent the adm'r. after the expiration of the year, brought his action, and filed his riarr in. general indebitatus assumpsit alleclging that Allee was indebted to Parsons in his lifetime for the use and occupation of the premises for a long time then elapsed, in consideration whereof, he promised to pay the said Parsons in his lifetime, &c. It was objected that general indebitatus assumpsit will not lie. Second, that it should have been al- ledged that deft, being liable to the ex'r., undertook and promised to pay him as ex'r. Accruing rent being neither debitum nor solvendum, a release of all actions does not release such rent. Litt. Sect. 513 ; Co. Litt. 292-6. There being no debt or duty at the death of Parsons, it would seem that in an action brought by his adm'r. after liis death the declaration ought to have stated the facts specially, to wit : the use and 8 BURTON'S ADM'E. vs. DERRICKSON'S ADM'R. first count laid the property in P. Burton, and the conversion in his life time. The second count laid the property in Burton, and the conversion by defts. since his death; and the third count laid the property in the adra'r. Walter, and the conversion since the death of Burton. The proof established that Pemberton Burton married the daughter of Capt. Win. Derrickson, who gave these negroes to the wife of Burton. The negroes went into the possession of Burton and re- mained in his possession after the death of his wife and during all his life. After his death, they were taken back by Capt. Derrick- son. Defts. are his adm'rs. and have refused on the application of plff. to give them up; but have sold them as a part of the estate of Derrickson. On this evidence, Cullen for defts. moved for a nonsuit. The declaration in all the counts states the conversion by defts. The proof establishes a conversion by Capt. Derrickson in his lifetime. Can the action be sustained ? It is a tort dies with the wrong-doer. The defts. found the property in the possession of their intestate. and appraised it as such. Can they be made liable as wrong-doers for this? The plff. has his remedy in another form of action for money had and received, to recover the value. Trover does not lie against an ex'r. for a conversion in the testator's lifetime. 1 Cowp. 371. We admit that the cause of action survives under our act of As- sembly, but the conversion is here charged upon the defts. and not a conversion by the testator. The plffs. might bring an action for the conversion by the intestate, and a recovery here could not be a bar to that action. Saund. Ev. 886, 855. Frame for plff. We have not charged a trover and conversion by Derrickson, and we did not mean to do it. Every man is answer- able for his own torts, and we mean to make these defts. answerable for their tort. We care not whether they be adm'rs. or not, they are wrong-doers, and we hold them answerable for the tort indi- vidually. We do not charge them as adm'rs., but personally; and the fact of their being the adm'rs. of a man who has committed a tort, shall not excuse their own tort. The case in Cowper is very different. The question there, was whether the adm'r. could be held answerable for the torts of his intestate, and we recognize the law of that case, at least until our act of Assembly altered it, and prevented the abatement of the action. But there is in this cise, not only a constructive, but an actual conversion. It is the law that if a person gets possession of the property of another, and uses it riot only as his own, but as the property of another, it is a conversion. 2 Saund. PI. and Ev. 881. occupation by permission of Parsons in his life time; the death of Parsons; the legal liability of the tenant to pay to the adm'r., and his undertaking to pay. ( See form of declaration for ex'rs. Rent due from deft. 25th March, 1789, to 25th June, 1789. The testator died in the middle of the quar- ter. In a suit by ex'r. of a termor for rent which became due after the death of the testator, &c." Impeys. Plead. 360 ; 1 Chitty PL 11, 38-9.) BURTON'S ADM'R. vs. DERRICKSOX'S ADM'];. 9 Rogers for defts. in reply. The question is, whether an action can be brought against an adm'r. for a conversion in the lifetime of his intestate. Never was there such an action sustained. How came it to be decided in Cowper, that an action would not lie for the tort of the intestate, if a suit could be brought against the- adm'r. so as to charge him personally? The claim is essentially against the estate of Derrickson. There can be but one conversion of the property. Xo suit can be brought to charge a man personally, where the prop- erty comes to him as an adm'r. ; otherwise, the case in Cowper could not have arisen. How is an adm'r. to be protected? He is bound to appraise all the estate of his intestate, and a recovery against him personally, would not relieve him from his liability to the estate. And suppose a recovery in such a suit ; it vests the prop- erty in them individually. The action proceeds on the ground of an individual claim of property in their own right, which is not so. It would change the whole course of the law in relation to the admin- istration of estates. Under our act of Assembly, the remedy was a plain one; an action against the adm'rs. for a conversion by their intestate. This could not be done at common law, according to the oase in Cowper; but it may under our act of Assembly. The record of a recovery here, could afford no evidence to discharge the adm'rs. of their liability to the estate, nor would it prevent another recovery for a conversion by the intestate. BY THE COURT. The question is a very plain one : whether a man, being an adm'r., getting possession of the property of another, and refusing to give it up, can be sued for this individually. There ?nay be more than one conversion. Before our act of Assembly you could not sue the adm'r. for a conversion by the intestate; and, if such an action as this would not lie, the party would have been reme- diless. At all times a conversion by the adm'r. was ground for an action against him. It is probable, that in the case in Cowper, the desire was to come at the intestate's estate; perhaps the adm'r. was not solvent. Wherever a man finds his property in th? hands of another, who refuses to give it up, he may sue him in this form of action. Whether the deft, claims the property as his own or as another's, it is a conversion. Saund. PI. and Ev. 475. If Der- rickson had changed the property into money, an action for money had and received would lie. A recovery here, would prevent an- other recovery against Derrickson for a conversion in his lifetime, for it could be pleaded to such an action; and as to the relief of the adm'rs. on a recovery in this action, it would only be necess-irv to show the Register that the property had been recovered, and he vould credit them with it. The conversion of property by an in- testate in his lifetime, might exhaust it; hence th^ necessity of coming at his estate after his death, which occasioned the struggle to get such an action allowed, which was refused by the case in Cowper. The property coTiies to deft's. hands in specie, and they refuse to give it up: they claim it in right of another, but this makes them guilty of a conversion individually, as the property is in specie in their hands. There is no express proof of a conversion by Capt. Derrickson. The proof is. that the negroes went into his possession 10 BANK OF W. & BRANDYWINE vs. COOPER'S ADM'R. after the death of Mr. Burton ; no demand is proved, and for aught appearing, he may have been in the possession by permission of Bur- ton's adm'r. The nonsuit was refused, and eventually the plff. obtained a ver- dict and judgment for $175 damages. Frame, Attorney General, for plff.; Cullen and Rogers for defts. EGBERT HUNTER vs. THOMAS LANK. In a mixed possession, the law adjudges it to him who has the legal title. The boundaries in a deed are to be first regarded ; the courses and distances next. TRESPASS, quare clausum fregit. Plea, Not guilty. This action was brought to try the title to certain lands claimed by both parties. It was chiefly a question of location and of holding, and the only points embraced in it are noticed by the following Charge of the Court to the jury. Trespass is an injury to the plff's. possession; he must therefore show himself in possession, though this need not always be an actual exclusive possession. Where woodland lies between two persons, both claiming it, it is a mixed possession, and the law adjudges it to him who has the legal title. The plff. in this case contends that he, and those under whom he claims, have had the uninterrupted posses- sion of this land for 20 years. If this is proved it is a good title in ejectment. Where a deed calls for natural and known bound- aries, you are to go to these boundaries, disregarding courses and dis- tances. If the deed gives courses and distances, and not known boundaries, you are to go by courses and distances, disregarding the quantity of acres. Boundaries first, and courses and distances next, without so much respecting the quantity of acres. The deft's. title (Scudders) is the oldest, and he is entitled to take his courses and distances go where they may. The deft, claims as a tenant by the curtesy. If Mrs. Lank was not actually seized in her lifetime, he can have no title bv the cur- tesy, unless indeed, the testimony goes so far as to prove him in the undisturbed possession for 20 years. The plff. had a verdict, six cents damages. Frame and Cullen for plff. Lay ton and Rodney for deft. THE PRES., DIRECTORS AND CO. of the Bank of WILMING- TON and BRANDYWINE vs. WILLIAM B. COOPER, Adm'r of THOMAS COOPER, Deceased. If a note is payable at a certain place, demand at the place must be averred. The want of funds of the drawer at the bank will excuse the demand there, but this must be averred. The notarial book of a deceased notary, is evidence of the facts it states in relation to his having notified the indorser. BANK OF W. & BKAXDYWINE vs. COOPER'S ADM'R. 11 SUMMONS case. Narr. Pleas. Non assumpsit; payment and dis- count, and the Act of Limitations. Reps, and issues. This was an action brought by the Bank of W. and B. as the holder of a note dated 18th Jan. 1819, for $2,000: against W. B. Cooper, adiivr. of Thos. Cooper, who was the indorser of said note. The note was as follows : " 18 January, 1819. For $2,000. Sixty days after date I promise to pay to Thomas Cooper, Esq., or order, two thousand dollars, without defalcation, for value received; negotiable and payable at the Bank of Wilmington and Brandywine. 0. HORSEY. Credit the draAver, Thomas Cooper. To be done for eighteen hundred dollars. 0. H." The note was indorsed " Thomas Cooper/*' Noted Mar. 21. Pro't. Mar. 23. Cr. Dec. 13, 1828, $1,020 44 in full of in't. The declaration alledged the making and indorsement of a note of $2,000, and averred " that afterwards when the said note became due and payable according to the tenor and effect thereof, to wit: on ihe 22nd of March, in the year afs'd. at Wilmington, in the county cf Newcastle and state afsd. to wit: at Sussex county afsd. the said note so indorsed as afsd. was duly presented for payment to the taid 0. Horsey and the said 0. Horsey then and there had notice of the said indorsement made thereon as afsd. was then and there re- quested to pay the said sum of money in the said note specified ac- cording to the tenor and effect of the said note and of the said in- dorsement so made thereon as afsd. but that the said 0. Horsey did not nor would, at the said time when the said note was so presented 10 him for payment thereof as afsd., or at any time afterwards, pay ihe said sum of money therein specified, or any part thereof, but wholly neglected, &c. of all of which said several premises, the said Thomas Cooper afterwards, &c. had notice." The second count declared on a note made by 0. Horsey, and indorsed by Thos. Cooper 1o plffs. for $1,800, and then averred a presentment to 0. Horsey and non-payment as in the first count. The execution of the note and the indorsement were admitted; also, the probate by the cashier. The Notary Public being dead, his handwriting was admitted and the protest read, subject to all legal ob- jections. The protest was dated 20th March 1829, and stated a pre- sentment at the house of the drawer, 0. Horsey, who was not at home " and the said. 0. Horsey not appearing at the said bank, nor any person or persons on his behalf, to pay off the sum dua on the said note, and the indorser being duly notified of the non-payment 1 hereof " the protest was thereupon made. The notary's book was also produced, in which was the following memorandum: " B. W. & B., March 20, 1819." (Copy of the note and indorsement.) " Noted, protest sent to bank." Thomas M'Dowell, Esq. sworn. Proves the handwriting of Ed- ward Roche, the Notary Public, by whom this protest and memoran- 12 BANK OF W. & BKANDYWINE vs. COOPER'S ADM'R. dum were made. He is now dead. This is his notarial book, and the official registry of the demand and protest of this note. The book came to me with the records and dockets of Mr. Roche, who was a magistrate, and whom I succeeded in office. I am also a Notary Public. The mails have usually left Wilmington for Georgetown on Mondays, Wednesdays and Fridays. Mr. Roche was in the habit of notifying the indorser on the last day of grace. If the drawer or indorser lived in town, he called; if out of town, he mailed a letter on the last day of grace. Thomas Cooper lived in Georgetown. The note became due on the 19th March 1819, payable on t the 22d. The date at the top of the register, is the time the notary received the note from the bank. Bayard for deft., moved a nonsuit. 1st. We could have demurred to this declaration and had judg- ment, because there is no allegation of presentment and demand on the last day of grace, at the place where the note is made payable. If this was matter the plff. was bound to alledge in his narr, he can- not prove it without such allegation; it is like, indeed it is, a condi- tion precedent. But the proof is, that the note was delivered to Roche the notary, on the 20th; it was therefore not at the place of payment when it became due. 2nd. The note has been altered so as to discharge the indorser. It was drawn for $2,000, and under the signature of the drawer is written " to be done for $1,800." Now unless this can be shown to have been done with the assent of the indorser he is discharged; a contrary doctrine would enable the holder and drawer materially to change the contract of the indorser. The alteration is the same as if the $2,000 had been stricken out, and $1,800 inssrted, which would undoubtedly, discharge the indorser. The indorser can only be held according to his contract, and you cannot in any manner, vary that contract without his consent, without discharging him. Dimin- ishing a note may equally injure an indorser as increasing it. Sup- pose an agreement between the drawer and. indorser for a division of the money raised on the note, the very inducement to the indorser's signing it might be defeated by lessening the sum. The general prin- ciple is always the same and invariable. This note is declared on as a note of $2,000. The words " to be done for $1,800 " makes it a note for $1,800, which is a variance. The count charging it to be an indorsement of a note of $1,800, must make it an indorsement of an altered note, and then the assent of the indorser to the alteration must be proved. 3rd. The presentment and demand must be made at the place on the last day of grace. The protest of the notary is no evidence in cases of inland bills and promissory notes. It is only evidence of the demand and refusal in case of foreign bills ; 2 Sound. PL 303. But, supposing it to be evidence, it proves the demand on the 64th day, the day after the last day of grace. He noted it for protest on the 21st, and protested it on the 23d, which was one day too late, as the note was due on the 19th and payable the 22nd. But how is the notice proved? Not by the protest. I admit that the note or memorandum of the notary may, after his death, be admitted to prove notice, if the note itself contains such proof, which this does not. BANK or W. & BRAXDYWINE vs. COOPER'S ADM'R. 13 But as to the legal liability of the indorscr: the contract of Mr. Cooper was, that if the note was presented at the bank on the hist day of grace and not paid, and, if thereupon, reasonable notice was given to him, he would be liable. The party here having neglected to set forth a demand at the bank, he could not give it in evidence if he had the proof ready. 14 East 500. And there is no proof of notice; the memorandum is nothing unless it set forth the time and manner of the notic3. Nor is the want of funds of the drawer at the bank an answer, unless the pre- sentment at the bank be alledged. This position does not contro- vert the case in Wheaton. Ch. on Bills, 282-7; 1 Saund. PI. 358; 16 East, 110-12; 5 Taunt. 30; 6 Com. L. R. 53, 72, 82, 95, 87, 96, 94. Opinions of Eldon, Redesdale, Burrow, Parke, Bailey and Wood. Wood was considered, in his day, as the first special pleader in England. Layton for plff. 1st. As to the alteration in the amount of the note. It is not ma- terial; not in the body of the note; a memorandum under the names of the drawer and indorser, limiting the responsibility of each. 2nd. As to the demand. The demand was made on the proper person; and the fact that Horsey had no funds in bank excuses a de- mand there. An inspection of the bank-books is a sufficient demand. Ch. on Bills, 333-4; 2 Burr. 669. 3rdly. As to notice. The notice must be given by a third person for the sake of the proof; the notary acts as the agent of the bank; he is a public officer acting under oath, and entitled to credit. He has here made a memorandum of his having given due notice. He states that on the 23d notice had been given, and it must have been by mail; this was his practice. Notice by the next mail is sufficient, and this note was pa3^able on the 22nd. An inland bill of exchange is not to be protested until the day after the last day of grace. Chitty on Bills, 365. Wales for plff. This is a question of pleading; whether it is neces- sary to aver in a declaration, the presentment at the place where the note was made payable. If the deft, was willing to put his case on this issue he should have demurred; then, if the declaration were defective, the court would allow an amendment. By pleading to the declaration and moving a nonsuit, the deft, cuts off this privilege. The court, therefore, will not allow this practice. But the present- ment is substantially alledged as contended ; the allegation is, that it was presented for payment according to the tenor and effect of the note. It has been decided by the House of Lords, that a particular averment of presentment at the place was unnecessary, it being suffi- cient to aver generally, that presentment was duly made according to the tenor of the note. That case was on a qualified acceptance. 6 C. L. R. 53. Roe vs. Young. Best, Garrow, Richardson, Graham, as well as Mansfield, Ellenborough, Buller, Heath and Rook, all con- cur in this opinion. This is the settled practice in the courts of this state, and of the United States. 2nd. As to the variance. What, is the contract. A note for $2,000. The memorandum to be done for $1,800, is no part of the contract 14 BANK OF W. & BBANDYWINE vs. COOPER'S ADM'R. The drawer probably paid off $200 on the renewal of the note, which made it unnecessary to discount more than $1,800. This in- dorsement is simply a credit of $200 to a note of $2,000. As to the mode of presentment and of notice, these being matters properly for the court and jury, I do not think it necessary to answer them on this motion. Rogers, for deft, in reply. Notice is a question of law, not for the jury, but for the court. So also is the demand; and we call on the court to decide, whether there has been a legal demand in this case or an equivalent to it. Where is the testimony ? Is it the bank state- ment? This is not evidence; and no evidence can be admitted on this point, as the demand at the bank is not laid in the declaration. There is no pretence that such a demand was in fact made as a differ- ent one, a demand at the house of Horsey, is alledged. There is no evidence of notice to the indorser. The protest is no evidence in the case of an inland bill or promissory note. On a foreign bill it is the only evidence. A note may be recovered on as well without a protest as with it. If a protest be made, the notary must be pro- duced to prove it as any other witness; the time, manner, &c. His only business is in relation to the presentment and demand, and not to give notice. If he does this he must prove it. If the indorser reside in town, he must be notified personally; if out of town, by letter put in the post office in time to go by the next mail, and di- rected to the post-office nearest the indorser's residence. In the case of Sappington vs. Caldwell, in Newcastle county, the plff. was nonsuited because the notice was sent to Wilmington, when New- port was the nearest post-office. The manner of the notice must therefore be proved to enable the court to judge whether it is legal notice. The memorandum of the notary shows nothing; the protest alone, states that notice had been given. 2ndly. Is the presentment at the bank a condition precedent which plff. must aver in his narr? The case in 14 East, is directly on this point: and advantage may be taken of it by motion for a nonsuit as well as on demurrer. 14 East, 500; 5 Taunt. 6 T. R. 710; Dougl. G79. 3dly. The first count is on a note for $1,800. The deft, never indorsed such a note. The second count is on a note for $2,000, which the bank never discounted. As to the indorsement "to be done for $1,800," the question is not whether it injures the deft, but whether it varies his contract. Is it the contract he entered into ? If it be not, he is discharged. Darley vs. English. Mr. Wales referred to the case of the Bank of W. and Brandy- wine vs. Bradun, and produced the following note of that case, in the handwriting of C. Justice Johns. "BankofW.&B. )T / In the Supreme Court. Tried at Nov. Term, 1826. Thomas Bradun. ) The register of Edward Roche, which contained a copy of the note on which this suit was founded, the deft, being an indorser, on which was the following entry: "10th of October, 1818. (Here was the BANK OF W. & BRANDY WINE vs. COOPER'S ADM'R. 15 copy of the note) noted, protested and returned to bank," being of- fered in evidence, after proof of the handwriting and death of Ed- ward Roche was objected to, and decided by the court to be admissi- ble evidence. The above appears from the notes of KEXSEY JOHNS." The Court being about to deliver their opinion, the plff's. counsel moved for leave to amend the narr, which was refused, the court stat- ing that they had never allowed an amendment in a material point after the jury were sworn. G. J. CLAYTON, now delivered the opinion of the court as follows : " The engagement of the deft, in this case to the holder was, that he would pay the amount of this note to him in case it was presented at the Bank of Wilmington and Brand}nvine, when it became due for payment, and a failure to pay it there, with due notice of non- payment. The proof of these facts constitutes the liability of the deft. The declaration should have averred that the note was presented at the bank for payment ; that it was not paid, and that the indorser had notice of such demand and non-payment. This is the form of declaring, as established by the books of precedents as far as we have looked into them. The declaration alledges a personal demand on 0. Horsey. We consider that it is in this respect substantially defective ; that this de- fect appears on the face of the declaration itself, the note being set out in the declaration, the place where the demand ought to have been made appears on the pleadings, and we apprehend that this is such a substantial defect in pleading as that the deft, may avail him- self of it on demurrer, or on motion in arrest of judgment. Instead of averring that a demand was made at the bank, the plff. alledges that it was made on 0. Horsey personally; and the question now is, whether under this allegation the plff. shall be permitted to prove a demand essentially different from his own allegation to support his action. The proofs and allegations ought to correspond. The plff. insists that there were no funds at the bank at the time when this note became aue; and, therefore, he was excused for not presenting it for payment. Whenever a party is bound to alledge any matter to be done by him to entitle him to an action, if he has any matter of excuse for not doing the act, he is bound to alledge this matter of excuse, or he will not be permitted to give it in evi- dence, if it is objected to at the time. Here, before the plff. could entitle himself to an action he should have presented the note at bank for payment; or, if he meant to excuse himself for not present- ing it according to this legal obligation, he should set out the matter in his declaration, which he relies on as an excuse, that the court may judge of its sufficiency. When this note became due, had it been presented at the bank for payment, and there had been a failure to pay, and due notice had been given to Mr. Cooper, he would have been liable to the plff. But in an action founded on these facts, it is necessary to state the facts as they exist. So if 0. Horsey had no 16 JOHN SIPPLE vs. PHILIP BREEN. funds in the bank at the time the note became due, as the bank was the holder of the note, it might not be necessary to make a formal presentment and demand, and the mere circumstances of its appearing from the books of the institution, that there were no funds there to meet the note, would in law excuse the formal presentment and de- mand; but when this matter is intended to be relied on as an excuse, such matter should appear on the face of the declaration, or the plfL is not at liberty to 'prove it. As the plff. has not, averred, either a demand at the bank, or any matter in excuse for not making such de- mand, but has relied in his declaration on a personal demand on 0. Horsey, we consider that he is not at liberty, under this declaration, to prove any other species of demand or excuse than that which he has chosen to rely upon himself, and of course a nonsuit must be en- tered." The Chief Justice also added : It is not necessary therefore, to give any opinion on the other points started by the deft, although there is one on which I have a strong opinion, and that is, that it appears from the proof, that de- mand was made either on the day before or on the day after the last day of grace. The note of the notary on the back of the note is "noted on 21st." on the certificate, he says demand was made on the *23d. Now the last day of grace was the 22nd. We, however, give no opinion on this point. I must be permitted to say a word as to the case of Nicholls vs. Webb, in 5th Wheaton, so far as it is considered an authority to establish the point that the entry on the record of a deceased notary's book " that due notice was given to the indorser " is to be taken as proof that legal notice was given. The book I would hold as evi- dence of all the facts it gives as to the time, manner, &c., of notice, by reason of his death. If we go further, we make the notary the judge of what is legal notice to fix the indorser. Now what is, legal notice is a question of law for the court, and not for the notary. He should note the facts ; when he gave notice ; to whom ; the mode, &c. These are facts, and his record would be sufficient to prove them; but the conclusion of law, whether it is due notice or not, is for us to decide, and not him. If the case in Wheaton goes as far as it ap- pears it did go, it has not my approbation as sound law. The plff. was nonsuited. Layton and Wales for plff. Bayard and Rogers, for deft. JOHN SIPPLE vs. PHILIP BEEEN. In an action on the warranty of a horse, proof that the deft., pending the nepociation, said to a third person, I will warrant the horse to be sound, will not sustain the action. And such a warranty tho' made to an agent of both parties appointed to ef- fect an exchange between them, will not support the action if the exchange be not made by the agent. ASSCMPSIT on a warranty in the exchange of horses. Plea, non assumpsit. Issue. WILLIAM H. DAVIS' CASE. 17 The narr contained two counts; one on an executed, the other on an executory contract, but both on the warranty. The proof was, that, on a conversation between the plff. and deft, about the exchange of horses, they agreed to refer it to one Cullen to name the terms. Cullen and Breen went out together to examine deft's. horse, when Breen said to Cullen, (Sipple not being present,) that the horse was only seven years old, and " he would warrant him as sound as a silver dollar." Cullen not liking the appearance of the horse, declined to name the terms of the exchange, and the parties afterwards agreed upon the terms themselves, without the agency of Cullen. The horse was at the time unsound and worthless, having been affected by a chest founder, which is a secret disease. He very shortly died. Bates and Frame for deft, moved a nonsuit, on the ground that the proof of the warranty had failed. The suit was on the warranty, and not for deceit or fraud in misrepresenting the qualities or condition of the horse. The warranty must be proved to have entered into the contract, which it did not, as the expression relied on was made to a third person. Eidgely and Huffington contra, contended that this third person was the agent of both parties, and that the exchange was finally made on the faith of the warranty made through him to the plff. To this it was replied, that though Cullen was the agent of both parties at the time the expression was used, he ceased to be such; that warranty was never acted upon, nor is there any proof that it was communicated to the plff. And the special guaranty to Cullen should have been averred in the narr. The motion prevailed. Judgment of nonsuit. WILLIAM H. DAVIS' CASE. Indentures of apprenticeship will not be vacated merely because the master is compelled to take the benefit of the insolvent laws. WM. H. Davis applied to be released from his indentures of appren- ticeship to John W. Clift, on the ground that his said master had at the present term, been discharged from prison as an insolvent debtor. The court refused to discharge the indentures merely on this ground. If the master do not continue his business so that the peti- tioner may obtain a. competent knowledge of his trade, he may here- after apply for relief. The fact of the master's insolvency, is not conclusive that he may not yet perform his covenant to teach the petitioner, or cause him to be taught the art, trade and mystery, of carriage making. There was no objection taken to the form of the binding; and, though the indentures were defective in this respect, the court would not notice such defects, (a). Petition dismissed. (a) So many cases have occurred before the Eeporter, in another ca- pacitv, of objection to the form of indentures of apprenticeship, and in which it became necessary to discharge the petitioner merely on the 3 18 COOPER AND WIFE vs. MAY. DAVID D. COOPER and Wife vs. THOMAS MAY. A fi. fa. cannot issue on a judgment before a justice of the peace, after the death of deft, without a sci. fa. It seems that a judgment may be kept alive by a fi. fa., issued within the year and day, and by regular continuances by vice comes afterwards, as against the original party. And on the deft's. death a fi. fa. may issue, if by relation it can be tested previous to the death. But after deft's. death and one term elapsed, no execution can issue without a previous act. fa. CERTIORAKI. Judgment before a justice of the peace in an action at the suit of Thomas May vs. Nathaniel D. Masten. An execution ground of the invalidity of the binding, that he thinks proper to ap- pend (though somewhat out of place) a few forms of binding, which it may be useful for justices of the peace and trustees of the poor to con- sult. No. 1. Form of Indenture by the father; or (if the father do not re- side in the state, or if there be no father,) by the guardian; or (if there be also no guardian,) by the mother. This Indenture made this day of A. D. 18 . Witness- cth : That A. B. father of Y. Z. a minor, hath, in the presence and with the approbation of C. D. a justice of the peace for county, in the state of Delaware, and in consideration of the sum of dollars, lawful money of the said state, advanced and paid to the said A. B. by G. H. of said county, put and bound, and by these presents doth put and bind the said Y. Z., a white boy, who is now of the age of years months and days, as nearly as can be ascertained, as an apprentice to the said G. H. his executors, administrators and as- signs, for and during the term of years months and days, from the day of the date hereof, the said Y. Z. to serve the said 0. H., his executors, administrators and assigns, as an apprentice, for the term aforesaid, or until he shall arrive at the age of twenty-one years, if that shall happen sooner than the expiration of the term aforesaid, and no longer. And the said G. H. for himself, his execu- tors and administrators, doth hereby covenant and contract to teach, or cause the said Y. Z. to be taught the art, trade and business of to the best of his skill, knowledge and ability; to give to the said Y. Z. reasonable education in reading and writing, to wit : years and months schooling during his said apprenticeship ; to well support and clothe the said Y. Z. during the said term, and at the regular expiration of his apprenticeship, to furnish him with two suits of clothes suitable to his condition. In witness whereof, the said A. B. and G. II. have hereunto set their hands and seals respectively the day and year aforesaid. A. B. [seal] G. H. [seal] Signed, sealed and delivered j in the presence of > J. K. and L. M. ) County, SB. This indenture was executed in the presence, and with the approbation of the subscriber, a justice of the peace fop county aforesaid, this day of < 18 C. D. Jus. P. COOPER AND WIFE vs. MAY. 19 issued in 1826, on which a sale was made, but no part applied to that execution. Hasten died in 1826, and his widow administered, and No. 2. Form of Indenture by the apprentice himself. This Indenture, made this day of - - A. D. 18 . Witness- eth : That Y. Z. a minor, of the age of fourteen years and upwards, to wit : of the age of years months and - days, as nearly as can be ascertained, and who has no father or guardian within this state, hath, in the presence, and with the approbation of C. D. and E. F. two of the justices of the peace, of the county of - , put and bound, and by these presents doth put and bind himself as an apprentice to G. H. of the said county of , his executors, administrators and as- signs, for and during the term, &c. &c. (as in the former precedent.) In witness, &c. &c. County, ss. This indenture was executed in the presence, and with the approbation of the subscribers, two of the justices of the peace for - - county aforesaid, (acting together and signing this certificate in the presence of each other,) this day of , 18 . No. 3. Form of Indenture of a coloured boy. This Indenture, made the day of A. D. 18 . Witness- eth : That A. B. father of Y. Z. a minor, in consideration of the sum of dollars, lawful money of the state of Delaware, advanced and paid to the said A. B. by G. H. of county, in the said state, hath, in the presence, and with the approbation of E. F. a justice of the peace for the said county of , put and bound, and by these presents doth put and bind the said Y. Z. a negro (or mulatto) boy, who is now of the age of years months and days, as nearly as can be ascertained, as a servant to the said G. H. his ex- ecutors, administrators and assigns, for and during the term of years months and days, from the day of the date hereof ; the said Y. Z. to serve the said G. H. his executors, administrators and assigns, as a servant, for the term aforesaid, or until he shall arrive at the age of twenty-one years, if that shall happen sooner than the ex- piration of the term aforesaid, and no longer. And the said G. H., for himself, his executors and administrators, doth hereby covenant and contract to teach, or cause the said Y. Z. to be taught the art, trade and business of to the best of his skill, knowledge and abil- ity ; to well support and clothe the said Y. Z. and at the regular expira- tion of his servitude, to furnish him with two suits of clothes suitable to his condition, and also to pay to the said Y. Z. the sum of dollars in lieu of schooling, it being inexpedient to stipulate for edu- cation in reading and writing. In witness whereof, &c. &c., (attestation and certificate as in form No. 1.) No. 4. Form of Indenture of a poor coloured boy under ten years old, by two justices of the peace; or two trustees of the poor; or a justice and trustee. This Indenture, made this day of A. D. 18 , between C. D. and E. F. two of the justices of the peace for county, in the state of Delaware, of the one part, and G. H. of the said county and state, of the other part : Whereas, the said C. D. and E. F., justices as aforesaid, having re- ceived infonnation of a certain male negro (or mulatto) child, named 20 COOPER AND WIFE vs. MAY. afterwards intermarried with Cooper. An alias fi. fa. was issued in 1829. This was the error assigned, that the alias fi. fa. issued several years after the defendant's death, and without any sci. fa. The case was argued by Frame for the plff. in error, and Johnson for deft, in error. After consideration, the Chief Justice delivered the following opinion : CLAYTON C. J. " On the 13th May, 1826, judgment was ob- tained against Nathaniel D. Mason, by default, for the sum of $50. On the same day execution issued, returnable 13th Nov. 1826, and was delivered to a constable; who, on the 22d May, 1827, returned the same with an inventory of the goods and chattels levied on and appraised to $75 84, subject to prior executions, and indorsed ' goods sold by D. Mason, constable, for $122 37, and applied to prior exe- Y. Z. within the said county, who has not parents able to maintain him and bring him up to industry, and in suitable employment, did issue process under their hands and seals, directed to J. K., a constable of said county, commanding him to bring before them at a time and place therein appointed, the said Y. Z. and also his parents; and the said justices, upon the parties, or such of them as could be found, being brought pursuant to said process, having inquired into their condition and circumstances; and it appearing to be a proper case for binding the said Y. Z. according to the second section of the Act concerning apprentices and servants : Now, therefore, this indenture witnesseth : That the said C. D. and E. F. justices as aforesaid, in pursuance of the power to them given in the said act, and in consideration of the sum of dollars, lawful money of the state of Delaware, advanced and paid to A. B., father of the said Y. Z. by the said G. H., have ] ut and bound, and by these presents do put and bind the said Y. Z. a poor negro (or mulatto) boy, who is now of the age of years. months and days, as nearly as can be ascertained, as a servant to the said G. H. his execu- tors, administrators and assigns, for and during the term, &c. &c., (as in form No. 3.) Tn witness whereof, the said C. D. and E. F. justices as aforesaid, (being together, and executing this indenture in the presence of each other,) and the said G. H., have hereunto set their hands and seals respectively, the day and year, first herein written. C. D. E. F. G. H. seal seal seal Signed, scaled and delivered, in the presence of L. M. and N. 0. No. 5. Form of Indenture of a poor coloured boy, over ten years old. Adopt form No. 4, merely adding to the recital these words : " the said justices did, upon the application of the parents of the said Y. Z., postpone the said binding for five davs, to enable the said parents, to give sufficient security for indemnifying the county against the maintenance of the said Y. Z., which security has not been given, al- though the time aforesaid, has expired." COOPER AND WIFE vs. MAY. 21 cutions/ Cooper intermarried with the widow and admr'x. of N. D. Hasten, who died on the 28th May, 1826. On the 13th Oct. 1828, an alias execution issued. The exception taken in this case is, that the judgment ought to have been revived by scire facias against the adm'rx., before issuing the alias ft. fa., to take the goods in the hands of the adm'rx. After judgment, if no execution be issued within the year and day, it is necessary to revive the judgment by scire facias, and it is irreg- ular to issue a ft. fa. or other execution without such proceeding, unless a stay be given, or the plff. be delayed by writ of error or in- junction. The reason why the plff. is put to his sci. fa. after the year, is because where he lies by so long after his judgment, it shall be presumed that the judgment is executed, or that the plff. has re- leased the execution; and, therefore, the deft, is not to be disturbed without being called upon, and having an opportunity of pleading that the judgment is executed, or the release, or showing other cause, if he can, why execution should not be issued against him. It has been said that execution may be sued out, after the year, without a sci. fa. merely upon awarding the writ upon the roll within the year, and continuing it down by vice comes non misit breve to the time of serving the writ. Carth. 283. However, it seems question- able, whether the writ of execution ought not to be sued out within the year, and returned and filed, to warrant the entry of continu- ances; for in a subsequent case, it was adjudged that an execution cannot be continued on the roll unless it be returned and filed. 2 Wils. 82. Even actually suing out an execution and continuing it by vice comes non misit breve, is stigmatized by Lord Holt as a usurer's trick. 2 Lord Raymond, 208; 2 Sautids. 72; 1 Stra. 100; 1 Crompt. Prac. 344. But it is not necessary in this case to decide the question, whether it is necessary to sue out a fi. fa. and have it returned and filed, in order to have the continuances entered so as to entitle the plff. to his execution at any time afterwards without a sci. fa.; because, in 1his case, a totally different question presents itself; not whether by surtig out execution and having it regularly continued down upon 1he roll, or by merely awarding the writ, and continuing it in the same manner, plff. may, at any time after the year, take out execu- tion against the deft., but whether in such case, it is regular to take out an execution against a deceased person where a term has inter- vened since his death. All that these continuances can effect, is to prevent the judgment from expiring, so as to obviate the necessity of a scire facias against a party to the judgment. If judgment is recovered, and the deft, dies in one month afterwards, if a term is suffered to elapse, so that the execution must be tested after his death, ?,uch execution would be irregular; for the rule is, that when a new person, who was not a party to a judgment, derives benefit by, or be- comes chargeable to, the execution, there must be a set. fa. to make him a party. 2 Sound. 6, n. 1; 1 Lord Raymond, 245; 1 Salk. :?19-20; 2 Lord Raymond, 7G8; 2 Inst. 471. So when the deft, dies in term time and execution is taken out immediately after the term, yet as it is necessary to test the execution as of the last day of the term, a day posterior to the death of deft., a scire facias is neces- 22 LAMBDEN'S EX'R. .vs. NOHRIS. sary to revive the judgment against the administrator. 6 T. Rep. 368. Lord Kenyon in this case says ' great injustice may be done to cred- itors if we permit the execution to stand/ The plff. should have sued out a scire facias to revive the judgment against the deft's. ex- ecutor. The moment a party is dead, the rights of his creditors are- fixed. An execution once begun should proceed. I understand by this, that where chattels or other property are seized in execution,, you may proceed to complete the execution at any time after, and that the death of neither plff. nor deft, will stop the execution. But 1 have met with no case where you can take out execution which must be tested after the death of the plff. or deft. A scire facias is necessary in every such case. But the case under consideration is free from all difficulty. An execution was issued in the lifetime of Hasten and completed. No benefit it is true, was derived from that execution. About two years and a half after his death, and proba- bly after the goods were all administered, an alias fi. fa. issued against the dead man, commanding the constable to levy the debt of his goods and chattels, and for want of such goods and chattels to take his body, and commit him to the common jail of the county. Justices of the peace have no stated terms; all their process is con- tinued by adjournment to a special day ; the fiction of ' continuances upon the roll ' cannot exist, because it is not possible. The law will not suppose any thing which is not possible. There had been there- fore, in this case, no continuance of the execution for more than two- years after the death of Hasten, nor could there in the nature of things, be such a continuance. Every execution from a justice takes effect from its date; it has no relation to a prior time; and in no case can ail execution issue against a deft, after his death. This is contemplated by the Act of Assembly, (Digest 347). A judgment does not expire under three years, unless the deft, dies within that time; and in such case, a sci fa. is necessary. Tf execution be sued oxit after a year and a day without a scire facias, it is not void, but voidable only by writ of error. 2 Saund. 6, n. ; 3 Lev. 404; 1 Salk. 261. A certiorari is more extensively remedied than a writ of error. The alias fi. fa. is irregular, and the proceedings must be re- versed." BLACK and ROBINSON, Justices, concurring. Judgment of reversal. Frame for plff. in error. Johnson for deft, in error. MATTHEW B. BOYER, Ex'r. of THOS. LAHBDEN, deceased vs. RICHARD NORRIS. The proper proof of a sealed instrument is by the attesting witness, or by proof of his handwriting if he be dead, &c. Proof of the handwriting of the obligor is not sufficient. DEBT on single bill. Pleas, non est factum, payment and set off. Replications generally and specially, and issue. STATE USE, &c. vs. TEUKE-TENAXTS OF P. READING. 23 The plff. not being able to prove the handwriting of the subscrib- ing witness, offered to prove the handwriting of the obligor; which the defendant objected to. Per Curiam. This evidence is not competent. You must first prove the handwriting of the subscribing witness if he be dead, or insane, or infamous. It is not sufficient to prove the handwriting of the obligor. This is permitted only where the witness does not recol- lect being present at the time, or did not attest the execution of the instrument. The plff. was nonsuited. Bates for plff. Huffington for deft. THE STATE, use of ELIZA READING'S Adm'r. vs. The terre- tenants of PHILIP READING, deceased. Proof of facts amounting to a payment or discharge in law, does not support a plea of actual payment. Evidence of a bond to Sarah Eliza R. does not support the averment of a bond to Eliza R. The admissions of a party having a community of interest with the other defts. are evidence against all. SCIEE facias on a recognizance in the Orphans' Court. This was an action of scire facias on a recognizance entered into in the Orphans' Court of Newcastle county, by Philip Reading, on the If-th Sept. 1813, in $28,770 36, conditioned to pay to the other children of Philip Reading, deceased, or their legal representatives their respective shares of $14,385 18, the appraised value of the lands of said Philip Reading, deceased, with interest from 25th June, 1813, in instalments. The defts. pleaded First plea. (Payment.) Executio non "because (protesting that the said writ of scire facias is not directed nor issued against the heirs nor representatives of the said P. R., the recognizor, nor hath any writ of sci. fa. issued or been sued on said recognizance, against the heirs or representatives of the said P. R., and that the return made by the sheriff to the said writ of sci. fa. is ill, and of no effect against the defts., the said sheriff not having returned that they, or either of them are seized, possessed, or are terre-tenants of any or what lands within his bailiwick, or in the county of Newcastle, which were of the said P. R. on the said 16th Sept. 1813, or at any time since, nor that they are tenants of all the lands in his bailiwick, or in the county of Newcastle, which were of the said P. R. on the said IC'th of Sept. or at any time since;) they say, that the said P. R., after the said 16th Sept. A. D. 1813, and after the times of payment in the said condition mentioned, and before the commencement of this suit, to wit: on the day of , A. D. 18 , at New- castle county aforesaid, paid to the other children of P. R. deceased, their equal and proper shares of $14,385 18 in the said condition mentioned, together with all interest then due thereon, according to the form and effect of the said condition of the said recognizance; and this they are ready to verify, wherefore they pray judgment." 24 STATE USE, &c. vs. TERRE-TENANTS OF P. READING. Second plea. (Accord and satisfaction.) And for a further plea in this behalf, executio non, &c., " because (protesting as afore- said,) they say that the said P. Reading, the recognizer, after the said 16th Sept. A. D. 1813, and after the days and times of payment in the said condition mentioned, and before the commencement of this suit, to wit : on the 3d of April, A. D. 1819, at Newcastle county afs'd. made and sealed, and as his act and deed delivered to the said Eliza Reading then in full life, one of the other children of P. Reading, deceased, and for the use of whose adm'r. this suit is brought, his, the said P. Reading, the recognizers, certain writing obligatory in the penal sum of $6,000, of lawful money of the U. States; conditioned for the payment of $3,000 of like lawful money, and interest for the same, by the said P. Reading to the said Eliza, at a certain time therein mentioned and now elapsed, with warrant of attorney to confess judgment thereon, and which said writing oblig- atory the said I*. R. then and there delivered to the said Eliza, who caused judgment to be entered on said bond against the said Philip, in the Court of Common Pleas of the state of Delaware, at Newcastle in said county, on the 5th of April, A. D. 1819, as of the term of the said court, in the same year last afs'd., for the real debt of $3,000 with interest from the 3d day of April, in the same year as afs'd., with stay of execution until the 3d day of May, A. D. 1819, as by the record and proceedings thereof, still remaining in the said Court of Common Pleas, more fully and at large appears ; which said judgment still remains in full force and effect; and the said Eliza then and there accepted and received as afs'd., said bond and warrant of attorney from the said Philip, and entered judgment thereon as afs'd., in full satisfaction and discharge of her, the said Eliza's pro- portionable share of the said recognizance, and of all damages and sums of money thereupon due and owing, or accrued; and this they are ready to verify, wherefore they pray judgment." Wales pro deft. The following plea was added, by leave of the court. Third plea. (A special plea of payment out of a particular fund.) Executio non "because they say that after the 16th of Sept. A. D. 1813, in the said recognizance mentioned, and before the commencement of this suit, the amount due to the said state of Delaware for the use of the said , by virtue of the said recognizance, was paid and satisfied by the said , out of the sales of the real estate of the said William Price, one of the recognizers afs'd., made by the sheriff of Newcastle county, by vir- tue of a writ of levari facias, No. , to the March term of the Su- perior Court of Newcastle county, in the year 1819, issued at the suit of - ; and also by virtue of a writ of vinditioni exponas, No. , to Nov. term of the said court for the year last af'sd., is- sued at the suit of the said ; and this the said , are ready to verify; wherefore, they pray judgment, &c." Rogers pro deft. Replications and issues. The plff. exhibited the letters of administration on the estate of Eliza Reading; the recognizance of Philip Reading; the. valuation STATE USE, &c. vs. TERRE-TENANTS OF P. BEADING. 25 of the real estate of Philip Reading, deceased; the share of Eliza Heading $2,877 03, and he rested. Wales for defts. Eliza Beading was the youngest child. She came of age in 1818. In 1819, a family arrangement was entered into by which Phijip Heading gave his judgment bond to each of the heirs in discharge of their shares, and in full satisfaction of the recognizance. During all her life Eliza Beading rested satisfied with this arrangement, and set up no claim on the recognizance. The land of William Price, one of the recognizors, was sold by the sheriff; and, we contend, that this sale was in law a satisfaction of the recognizance; the sheriff being bound by law to apply the proceeds of the sale to it. Exhibits n judgment, Sarah Eliza Beading vs. Philip Beading, for the real debt of $3,000, interest from 3d April, 1819 ; entered 5th April 1819. Offers in evidence a bond from Philip Beading to Sarah Eliza Reading, on which this judgment was entered. Objected to. Depo- sition of the attesting witness read. Objection. The plea alledges a bond to Eliza Beading; the bond offered in evidence is a bond to Sarah Eliza Beading, and does not support the plea. Mr. Rogers for defts. The averment in the plea is nothing more than that Philip Beading delivered a bond to Eliza Beading, and not that the bond was to Eliza Beading by that name. Mr. Wales for defts. The gist of the plea is, that a certain bond executed by Philip Beading, was accepted by Eliza Beading in satis- faction of her share of the recognizance. We offer this bond to sup- port this plea, and it matters not to whom it was given, so that it was delivered to, and accepted by, Eliza Beading in satisfaction of the recognizance. The Court. This plea purports to set out an obligation from Philip Beading to Eliza Beading. Such a description was necessary, because an obligation from Philip Beading to nobody, would be a nullity. The bond offered in evidence is to Sarah Eliza Beading, which is a fatal variance. Where an instrument is set out in a narr or plea, it must be accurately described, and the proof support it ac- curately. 3 Stark. Ev. 1588. Strange 787. Bond rejected. The deft, then offered in evidence, a statement of judgments against William Price, a surety in this recognizance, and the process upon them, and the sales of Price's lands, to support his third plea. Ob- jected to. Mr. J. A. Bayard. Under this plea the deft, can show nothing but an actual payment, or application of the proceeds of the sales to the recognizance. The plea is, that we were actually paid out of this fund, and the fact that the sales were sufficient and legally applicable to this recognizance, is not sufficient without showing the application of them. Mr. Rogers. We don't intend to prove any thing more by this paper than the existence of the judgments and writs, and. the sale by the sheriff. fr> STATE USE, c. vs. TERRE-TENANTS OF P. HEADING. This was not objected to, and they were admitted for the purpose of raising the question whether they supported the plea. The amount of sales of Price's land applicable to this recognizance was $1,634 50. Bayard. The plea is a plea of payment, actual payment. The proof is of a legal payment; a payment by operation of law, and is not admissible under this plea. The Court. This is a general plea of payment; out of a particu- lar fund it is true, but that does not vary the case. It does not state the facts so that the court may say whether in law they amount to a payment. A plea of actual payment is not supported by evidence of a legal payment. This is the case of a debt discharged by opera- tion of law according to the proof, rather than of a payment as alledged by the plea. We therefore think the evidence inadmis- sible. The plff. in reply, offered in evidence the answer of Peterson Reading, one of the terre-tenants in this case, to a bill in Chancery. Objected to. Rogers. Peterson Reading is only a terre-tenant. His connec- tion as one of the heirs of Philip Reading does not appear. He may not be at all interested here, yet his admission is offered in evidence to bind all the defts. Bayard. By this reasoning we might have the separate admis- sion of each deft, and yet could produce no evidence against any. They can't take advantage of their mode of pleading jointly, so as to exclude the separate admissions of each. Wales. The difficulty arises from the improper service of the original process. This is a proceeding against the land, and yet the defts. are summoned personally. T can't see how they could plead non tenure. The Court. The rule is clear that the admissions of a party are evidence against him ; and can the mode of the def t's. pleading in this case, deprive the plff. of his right to this testimony? The English rule is, that you must make the heir a party ; but the practice is dif- ferent here. We always issue our sci. fa. against the terre-tenants. Note. The inclination at first was to confine the effect of this answer to the deft. Peterson Reading; at present, the court directed it to be read, leaving any opinion as to its application for charge to- the jury. Upon examination of this question the opinion of all the court was, that the answer of Peterson Reading is evidence against all the terre-tenants, on the principle of the admission of a party having a community of interest with the other parties. 2 Starkie Ev. 44. Mr. Booth for plff., to the jury, stated his claim to be $6,135 70 principal and interest. Charge of the court to the jury. CLAYTON, C. J. This is an action of scire facias on a recog- nizance in the Orphans' Court, on the acceptance of intestate lands. The record of the recognizance is sufficient evidence of the plff's. claim, unless it has been discharp,d. The pleas are pa3Tnent, ac- M'DOWELL vs. BANK OF W. & BRANDYWIM:. 27 cord and satisfaction, and payment out of the sales of lands of Wil- liam Price, one of the sureties in the recognizance. No evidence has been offered under the first plea. The second plea is, that <: Philip Eeading executed and delivered his bond to Eliza Reading, which was received in full satisfaction and discharge of the recog- nizance." The evidence is of a bond to Sarah Eliza Reading, which does not support this plea. We are not aware that there is any evi- dence that this bond was accepted in satisfaction of the recognizance ; and there must be both accord and satisfaction to support this plea. The other plea is of a payment out of the sales of William Price's lands. The evidence is, that the lands of Price, bound by this recog- nizance, were, sold by the sheriff, the proceeds of which sale, or a part of them, the defts. contend, were legally applicable to this recog- nizance, and ought to have been applied to it. This is not a pay- ment. If the facts had been stated in a special plea, it might have been a discharge of the recognizance pro tanto; but under this plea they are inadmissible. Verdict for plff. for $6,135 70. Booth and J. A. Bayard for plff. Wales and Rogers for defts. (Note. The facts relied on in support of this last plea if properly I leaded, would have brought up the question decided in the High Court of Errors and Appeals in the case of Vickery vs. Vickery. The decision there was that a sale, by the sheriff, of lands bound by a recognizance in the Orphans' Court, operated as a discharge of the recognizance, pro tanto.) SAMUEL M'DOWELL vs. THE PRES. D. & CO. of the BANK of WILMINGTON and BRANDYWINE. A By-LaW giving the bank a lien on stock for the debts of the holder is valid. The discharge of an indorser by the acts of the holder cannot be set up at low after judgment. SUMMONS case. Plea, Not guilty, with leave, &c. Reps, and Issue. This was an action of trespass on the case against the bank, for re- fusing to permit the plff. to transfer bank stock on the books of the bank. Narr. Plff. complains, &c. " For that whereas the said Samuel M'Dowell before, and at the times of committing the grievances in the first, second and third counts of this declaration, mentioned was possessed of, and lawfully entitled to, a certain share or interest, to wit : thirty-six shares in the capital or joint stock of the Bank of Wil- mington and Brandywine, of the value of $1,080, then standing in the name of the said S. M'Dowell, and transferable by him in per- son or by his attorney, legally appointed, at the banking-house of the said defts., on the 'books of the said defts., by them kept for that purpose, to wit: at the county af s'd. ; and, thereupon, by reason of the premises in this count mentioned, it became and was the duty 28 M'DOWELL vs. BANK OF W. & BEANDYWINE. of the said defts., to permit the said S. M'Dowell, in his proper per- son, or by his attorney legally appointed, to transfer his said share or interest in the said capital or joint stock in the said books of the said defts. to any person or persons whatsoever: And whereas also, just before and at the time of committing the grievances hereinafter next mentioned, the said S. M'Dowell did sell and dispose of his said interest or share, to wit: thirty-six shares in the said capital or joint stock to one Robert Porter, of the county afs'd., and after the said sale, to wit: on the 24th Jan. A. D. 1829, at the county afs'd., did appear in his proper person, and present himself at the banking house of the said defts., for the purpose of then and there transferring his said interest or share in the said capital or joint stock to the said R. Porter, in the books of the said defts., by them kept for that purpose, and the said S. M'Dowell did then and there re- quest the said defts. to permit him to transfer his said interest or share in the said capital or joint stock to the said R. Porter; yet the said defts. well knowing the premises, but contriving and intending wrongfully and unjustly to injure and damnify the said S. M'Dowell, did, to wit : on &c. at &c., contrary to their duty, wrongfully and un- justly refuse to permit the said S. M'Dowell in his proper person, to transfer his share or interest in the said capital or joint stock to the said R. Porter, at their said banking-house; by means of which said several premises, the said S. M'Dowell was unable to complete and was obliged to rescind the said sale of his said interest or share in said capital or joint stock, to the said R. Porter, and lost and was deprived of the interest, gains, profit, benefit and advantage, which he would otherwise have derived and acquired, from the sale of the said capital or joint stock to the said R. Porter, and from the pur- chase money which he would have received therefor, to wit: at &c." The second count stated an agreement to sell to R. Porter, instead of an actual sale, and then the request to transfer, and refusal. Third count. That plff. being possessed, &c., and being desirous to transfer the said stock, applied to the bank, &c., and the refusal, &c. Damages at $1,000. J. A. Bayard, pro quer. The proof established ihat plff. was the owner of thirty-six shares of the stock ; that he became the indorser of a note drawn by Thomas M'Dowell and discounted by the bank, which is still unpaid. Th<^ bank has obtained judgment on this note against both the drawer and indorser. The request of plff. to be permitted to transfer his stock, and the refusal of the bank were proved. It was also proved, that the bank had entered into an arrangement with Thomas M'Dowell, the drawer of the note, who is a Notary Public, that he should do the protesting of the bank, and that a portion of his fees should be at stated times, applied towards the note. The sum so paid, has not been sufficient to keep down the interest. Thomas M'Dowell has had extensive deposits in bank since the note fell due, and the bank has permitted him from time to time, to check them out. Wales, for deft. By the showing of the plff. it now appears that this is the case of a creditor refusing to allow his debtor to take out of his hands a fund which he had a right, according to the principles of justice, to retain M'DOWELL vs. BAXK OF W. & BRANDYWINE. 29 in part, satisfaction of his debt. The plff. as holder of this stock, was a member of an association which had delegated to a certain body of directors, the power of making laws for the government of that asso- ciation. The directors have made a by-law that no stockholder should transfer his stock while he was a debtor to the bank. The question then is, is this by-law valid ? Is it reasonable ; is it conform- able to the constitution of the state and the laws thereof? Art. 5. Directors authorized to make by-laws. Art. 7. The shares of stock to be transferable as the directors by by-law shall direct. In Feb. 1826, the board passed a by-law, that no stockholder indebted to the bank, should sell or transfer his stock while so indebted. Judgment of the bank against plff., April 7, 1819, for $541 16, which is still due and unsatisfied. Bayard for the plff. to the jury. The bank suffered the maker of this note, Thomas M'Dowell, to draw out of its hands funds sufficient to pay off the note, which we shall contend, under the direction of the court, is a discharge of the indorser. 4 Vesey, 824. Law vs. East India Co. Payment of money by a creditor to the principal debtor after the debt is due, is a. discharge of the surety. Where the principal has left a sufficient fund in the hands of the creditor and he pays it over, it discharges the surety. These deposits, what were they ? A debt due from the bank to Thomas M'Dowell. In an action for them their own note could have been set off; and if they could set it off, they could re- tain it and were bound to do so, or the surety is discharged. 15 Vesey, 577. The cash deposits are much larger than the note and interest. Second. The bank entered into a new engagement with the drawer for the payment of this note, and this discharged the indorser or surety. But we contend, that the bank had no right to prevent the transfer of this stock, even if S. M'Dowell was indebted to them. The bank has no more right to establish a rule that they will hold on 1,o the stock of their debtors, than they would have to pass a by-law that execution should issue at once against their debtors without judgment. This by-law is repugnant to the laws of the state. The general law gives no lien except by contract as by hypothecation. This by-law undertakes to give the lien without contract. Growing liens, are always to be discouraged. 7 East, 224-8. Eogers, for deft. The plff. contends that there was an agreement between the bank and the drawer, which discharged the indorser. I have never heard such a parcl agreement set up to discharge a written obligation. But this is not the case of drawer and indorser. Judgment has been ob- tained against both the M'Dowells, and they stand as principals. Even in- a joint and several bond all are principals. But such an f greement as this would not even discharge an indorser. The same r.nswer applies to the other objection, that deft, permitted Thomas M'Dowell to check out his deposits; and in addition, that if they ?u stained the relation- of drawer and indorser, the indorser has no right to require the holder to retain general deposits. I admit the right of the bank to do so, but not its duty. 30 M'DOWELL vs. BANK OF W. & BRANDYWINE. The Court stopped the deft's. counsel on this point. We under- stand the question to be, whether this judgment can be discharged in a court of law by matter in pais. Supposing that the agreement here made with Thomas M'Dowcll, or the conduct of the bank in permitting him to withdraw deposits would, as between principal and surety, or drawer and nulorser, discharge the surety or indorser, (and we incline to the opinion that they would, especially the first,) can this be matter of defence in a court of law ? We are clearly of opinion that it cannot be set up at law. It cannot be pleaded in dis- charge of the judgment, but can avail only as an equitable defence in a court of equity. See the case of Butler vs. Jarrold, recognized in the case of Bradun and Rice, in the Court of Errors and Appeals, but distinguished from that case. We will, of course, hear the other side on this question. 3 Stark. Ev. 1389; 8 Price, 469; 5 Barn, and Aid. 187. Rogers, proceeds. The by-law is a valid one. It is made in con- formity with the articles of association by which the plff. as one of the corporators, agreed to submit to such regulations as the directors should make in relation to this matter. It is authorized by the char- ter, and not repugnant to the laws of the state, 'nor the constitution. Wales, on the same side. The power of making by-laws is incident to a corporation without express grant, and it may be delegated. This is a reasonable by-law ; highly beneficial to the corporation, and a safeguard to the corpora- tors. The liability to such a by-law was one of the terms of the ori- ginal subscription; a part of the agreement; and the present holder takes the stock, subject to the terms of the original subscription. It is a principle of all partnerships, that the partnership funds shall be first applicable to the partnership debts, and this banking institution i? nothing more than a partnership for banking purposes. In some acts of incorporation this rule is expressly contained; in the Bank of Maryland and Bank of Alexandria, it is so. It is, there- fore, not repugnant to the constitution. Nor is it repugnant to the laws of the state; there is nothing in it either against public policy, or oppressive or unreasonable; nothing that deprives any one of a legal right which may not be controlled by his contract. It is not necessary that these by-laws should be published to bind the corpo- rators, for they have access to the books, and are presumed to know them. I submit then that this by-law is reasonable; useful, both to the corporators and the corporation; necessary, indeed, for the secu^ rity of the partnership ; and that it is not repugnant either to the con- stitution or laws of the state. It is moreover, for the public benefit, as it facilitates the making of loans by increasing the security. Read, Jr., for plff. in reply. First, as to the discharge. Can it be set up at law? The judg- ment in this case is not directly in controversy, it comes incidentally in question. This is an action on the case; the plea, not guilty. The judgment against an indorser does not change the relation, the relation of principal and surety as between him and the drawer still subsists. If he pays off the judgment, he is entitled to an assign- ment. (Hardcastle vs. The Commercial Bank, post. ) Altering M'DOWELL vs. BANK OF W. & BKANDYWINE. 31 tlie mode of payment is a discharge of the indorser, and can the judg- ment alter this ? Second, the by-law. This must be supported, if at all, on the ground of lien. Liens are by custom or agreement. It is not known to the law as a customary lien, and it must rest on the footing of agreement. With regard to all such liens the rule is, that the know- ledge of the lien- must be brought home to the party. I refer to a case in 6 Term. Rep. (The linen bleacher's case.) These by- laws are private; not printed or published, as those of other banks are ; the Farmers' Bank for instance. It could not be known to the plff. It is a peculiar one; not known in any other bank of this state. It is repugnant to the laws of the state. What was the law in rela- tion to bank stock when this charter was granted ? That it could not be taken in execution, attached or affected by legal process. A law has since been passed, making the stock liable to be taken in payment of debts. Now if it required an act of assembly to do this, is it pos- sible that this, and more than this, could be done by a private rule of a petty corporation? It is repugnant also, because it is a summary remedy, unknown to the law, subjecting the owner of stock to what is equivalent to execution process, without suit or judgment. It is against policy, because it stops the transfer of personal property, and locks up this species of property, which should be the most transfer- rable; and it is partial, unjust and arbitrary; leaving a discretion to directors to transfer, to enforce, or suspend it at pleasure. By the Court. The first question in this case is, was Samuel M'Dowell, in Jan. 1819, indebted to the bank? This includes a question of law. The plff. indorsed a note to deft's. on failure to pay which, he became liable as the indorser. Suit has been brought and judgment obtained against him on this responsibility. It is not contended that this judgment has been actually paid, but that it has been discharged by an agreement between the bank and the drawer. The actual payments under this agreement must, of course, be ap- plied. But it is also said that this judgment has been discharged by the bank permitting the drawer to check out funds which they might have applied to it. If this question were on the note simply, it might be a discharge; but here is a judgment, and you cannot dis- charge a judgment by matter of a less grade. This is the rule at law. Nothing but actual payment, or release, will discharge at law. The indebtedness therefore, of the plff. is established. Second. Whether, under the by-law, the bank has a lien on this stock, and could lawfully prevent "its transfer. We would like more time to examine this question, but must now decide it on the best consideration we have been able to give it. This bank commenced under certain articles of agreement, one of which gives the board of directors authority to make rules concerning the transfer of stock. It invests them with a general power to regulate this matter. A by- law was made in 1826, prohibiting any member of the corporation f *om transferring his stock whilst indebted to the bank. The char- tor, 1 D. L. 328, confirms these articles and also gives the power to make by-laws. These by-laws must be reasonable and consistent with the laws of the state. We see nothing in this one unreasonable 32 FFBNON, INDORSEE OF LYNCH vs. FARMER'S ADM'R. or repugnant. It does not affect other than members of the corpora- tion whose privilege and duty it is, before they become such, to ac- quaint themselves with the rules of the institution, so far as they would affect their interests. In reference to the institution it is a very salutary rule ; greatly to the security and advantage of the stock- holders, and to the public, by facilitating loans. It is, therefore, in our opinion a valid by-law, and binding on all the corporators. In this opinion we are supported by the decision of a very able man, reported in 2 Peere Wms., 207, in the case of Child vs. Hudson's Bay Co., where it was decided that the company could take the stock of a member for his debts, under a by-law similar to this. The legal interest in all the stock is in the corporation for its benefit. We therefore think that, under the circumstances of this case, sup- posing the indebtedness of plff. to the bank proved, they were autho- rized to refuse him permission to transfer his stock. The plff. being called, was non pros'd. J. A. Bayard and Read, Jr., for plff. Rogers and Wales, for deft. On motion, rule to show cause why the judgment of non pros, should not be set aside, and a venire facias de novo awarded, on the ground of a misdirection. This motion was not prosecuted, and the rule was, of course, discharged. THOMAS FERNON, Indorsee of JNO. LYNCH vs. THOMAS FARMER'S Administrator. The words " or order " or words tantamount, necessary to make a note negociable. ASSUMPSIT on promissory note. Indorser vs. Maker. Pleas. Non assumpsit; payment and discount; Act of Limitations and plene administravit. Reps, and issues. Plff. proved the execution of the note and the indorsement to him, and a promise, by the deff s. intestate, after the indorsement, to pay the note to plff. Hamilton, for deft, moved a nonsuit. The note declared on is a note payable to Thomas Lynch, or order. The note proved, is payable to Thomas Lynch, but not to his order. This is a fatal variance. Bayard suggested that the words " or order," might be stricken out without affecting the instrument; if so, it is mere surplusage. Wales replied, that is was of substance and material. Chitty on Bills, 140. Tbe question was, whether the words " or order " were necessary to make the note negociable, and the court being of that opinion, Nonsuited the plff. J. A. Bayard, for plff. Hamilton and Wales, for deft. BRADLEYS' EXR'S. vs. READ. 33 BOOT. GIDEON JAQUES vs. JOHN RICE. The adjournment of a cause by a justice of the peace must be to a certain day, and not indefinitely. CEUTIORARI. First, Exception. That the cause was adjourned by the justice, at the request of the referees, without fixing any time: e>r place of adjournment. Judgment reversed^ BENJAMIN GROVES vs. CHARLES HICKMAN. A constable's return of " served by copy " is not sufficient. CERTIORARI. This was a judgment by default. The constable returns, " Feb. 17th, 1829, served by copy. H. Bruner." The court reversed the judgment on the ground, that this return did not specify whether the service was on the deft, personally or by leaving a copy at his house. Judgment reversed. THE CASE OF ELI CROZIER. If constable takes the body to prison, he must leave a certified copy of the execution to authorize the prisoner's detention. HABEAS CORPUS. The petitioner was committed on execution process from a justice of the peace. The objection was to the form of the mittimus. The Act of Assembly authorizes the detention of a prisoner on a certified copy of the writ of execution. The process upon which deft, was detained, was a printed blank warrant, filled up by the constable, and indorsed "committed May, 7, 1832, by Jno. Rudolph, cons't." The court discharged the prisoner on the ground, that this was not a certificate that it was a copy of the original execution. ANDREW BRADLEY and T. C. BRADLEY, Exr>s. vs. GEORGE READ, Esq., Plff., b. CERTIORAEI. Exceptions. 1st, But one of the executor was sum- moned, and judgment is given against both. 2nd, The judgment is against the executors personally, and it ought to have been of assets. 3rd, The execution is against the executors personally, whereas, it ought to have been de bonis testatoris. The Court reversed the judgment. 5 34 RANDEL vs. WRIGHT. HARRINGTON, J., thought the judgment good, and the execution bad. The summons was regularly served on one of the executors. He appeared and went into a trial. The referees reported generally for plff., and the justice entered judgment for plff. without designa- ting what kind of judgment, whether of assets or not. The 10th section of the Act of Assembly, (Dig. 336.) makes every judgment rendered by a justice against an executor as such, a judgment of as- sets. 1 take this then to be a judgment of assets, rendered against the estate of the deceased, which was represented by one of the ex- ocutors, whose acts bind the estate as fully as if both had been sum- moned and were present. The execution does not pursue the judg- ment, and is vitious. PETER A. HUMPHRIES, Constable vs. CLARK WEBSTER, in- dorsee, &c. An action against a constable for neglecting to return an execution would not lie before a justice of the peace, prior to the Act of 1833. CERTIORARI. This was an action brought by Webster against Humphries, the constable, for the amount of an execution, at the suit of the said Webster against Andrew Alston, which the said constable had not returned agreeably to the command thereof; and thus ren- dered himself liable. Dig. 341. The question was, whether the justice had jurisdiction. The Court said that an action for neglect to return an execution by which the constable becomes liable, ought to be a special action on the case founded on the statute. It must be in tort. An action for money had and received, could not be sustained. Though the Act makes the constable equally liable as if the money had been re- ceived, it cannot affect the form of the remedy, which must show the special matter on which the constable's liability arises, and must therefore, be a special action on the case, founded on the neglect of duty, and the statutory liability. Such an action is not within the jurisdiction of a justice of the peace. Judgment reversed. Wales, for plff. Rodney, for deft. (But see Act of 1833, (8 v. 265), since passed, giving jurisdiction in s-uch case.) JOHN RANDEL, Jr. vs. BENJAMIN WRIGHT. A variance between a contract alledged and one offered in evidence, is fatal; and this, whether the action be upon the contract or in tort arising out of it. Distinction between allegation of an instrument by its tenor and by its sub- stance. The court will not reserve a clear point for argument before all the judges however important the point may be, in the particular case. TRESPASS on the case. Pleas, Not guilty and Act Limitations. Issues. RANDEL vs. WRIGHT. 35 This was an action on the case by John Randel, Jr., a contractor on the line of the Chesapeake and Delaware Canal against Benjamin Wright, the chief engineer of that Company, for a series of injuries nlledged to have been done maliciously and intentionally, by the deft, upon the plff. The contract between the plff. and the Canal Company, constituted the deft, in certain matters, an umpire be- tween the parties, and gave to him extensive powers in the general ,?uperintendeiice, direction and management of the work. The de- claration charged that the deft, instead of acting impartially, and in j^ood faith between the parties, was actuated throughout by the ma- licious motive of ruining the plff., who was a rival engineer; and, tinder the influence of this motive, that he intentionally and mali- ciously did sundry acts, specified in the declaration, to harass and embarrass the plff. in the execution of the work, and finally by mis- representation, induced the Company to declare their contract with plff. abandoned, and his contract forfeited. The damages were laid at one hundred thousand dollars. The plff. offered in evidence the contract between him and the Ca- nal Company. (See this contract set out in Randel vs. Chesapeake and Delaware Canal Company, post .) It was objected to. Frame, for deft. We object to the reading of this contract in evidence, because it is totally different from the contract set forth in the declaration. It is all important to the plff's. cause of action, and any material variance will be fatal. I will point out some of the most prominent variances between this contract, and the one declared on. 1st. The contract is for excavating the Chesapeake and Delaware Canal; the contract declared on is for excavating the Delaware and Chesapeake Canal. 2nd. The contract in fixing the pay, refers to an estimate made by Randel; and agrees to give him such pay as is set down in said esti- mate; the narr sets out an agreement to pay as set down in an esti- mate made by Randel. This is too indefinite and general; it is at least different from the real contract. 3rd. The contract authorizes a change of the rate of payment. The narr has it " a charge of the rate of payment." 4th. In relation to a revision of the rates and a difference between the parties, the contract declares, that the esti- mate of Wright when certified, should be conclusive. The narr sets out that the estimate of Wright should be conclusive, without noticing the certificate. This is a substantial and material part of the contract omitted in the narr. 5th. The certificate and determi- nation that the work is abandoned, avoids the contract according to its terms " except to pay as aforesaid, for work already done." This exception is entirely omitted in the narr. 6th. Contract. In case Randel should be prevented " from entering upon or flooding lands." IS"aiT. In case he should be prevented " from entering upon flooding lands." 7th. In the same clause, the words " that in case " contained in the contract, are omitted in the narr. 8th. The sched- ule of prices. The narr professes to set out this in words and figures. In the third line the narr omits the word yard, stating it 10 cents per cubic, for excavation. The word " section " is used for station; " plan " for place; " drains " for back-drains; " station No. 166 " for station. No. 116. The contract offered in evidence, fixes the 36 RANDEL vs. WRIGHT. price from 70 feet and downwards at 61 1-10 cents; the contract de- clared on fixes it for the same excavation, at 61 1-20 cents. The former allows 13 cents per yard, where there is a deficiency of excava- tion to form the towing path ; the latter allows the 13 cents per yard, where there is a " deepening " of the excavation, &c. It may be said that this contract is set out only by way of induce- ment, and in an action sounding in tort, and not upon the contract. This is not so if it were material to make the distinction, for with- out this contract there is no ground of action. Without it there ex- ists no kind of privity or connection between either Randel and the Canal Co., or Randel and Wright. But, suppose it be only an aver- ment by way of inducement, still the parly is bound to prove its substance and legal effect: and that notwithstanding this is an action on the case sounding in tort. You need not set out the whole of an instrument but only its legal effect : but if you do set out unnecessary parts, you must prove them. 2 Doug. 665; Bristow vs. Wright.. Irrelevant matter, that which may be struck out on motion without affecting the ground of action, need not be proved. The distinction is between irrelevant and immaterial averments. Immaterial aver- ments are such as though they need not have been set out, are so- connected with the ground of action, that they cannot be struck out without destroying it, and must be proved. 2 East, 452, William- son vs. Allison. The contract is an entire thing, and if you fail to prove it as laid, you fail to identify it. The whole contract here is one averment; not divisible into branches: unless the whole of this averment may be stricken out it must be proved. The proof must correspond with the statement. A material averment, though laid as inducement, must be proved; and the form of the action makes no difference. 12 East, 452; 2 Stark. Evid. 352-3-4; 3 do. 1548, 7 Cranch, 208. This is the proper mode of making the objection. Vide also, 12 Com. L. R. 223. 6 T. R. 771 ; 1 do. 235 ; 5 Com. L. R. 180. Read, Jr., for plff. This is an action of tort between two persons; having no origin in- contract between them, but in which, as the merest matter of induce- ment, it became proper to set out a contract between one of them and a third party, in order to show the relative situation of plff. and deft. Xo cause of action is founded on this contract, or grows out of it, either as against the Company or the deft. It is for the torts of the engineer totally distinguishable from any matter of contract. In what manner therefore, is the relation of the parties affected by the clerical errors pointed out. Examines these to show that they are unimportant. 1st. The name of the Canal Co. It follows a correct statement of the name, and is immaterial. 2nd. The reference to the estimate is the same with the said estimate. No other estimate is spoken of. 3rd. " Charge " for change; it is doubtful in fact, which word is used. 4th. In relation to a revision of the contract; "when certified" left out in the narr. How is this material. It was a stipulation between Randel and the company, and can have no bearing as between these parties. 5th. Contract avoided " except to pay as aforesaid, for work already done." These words omitted. It was only necessary EANDEL vs. WRIGHT. 37 for us to set out so much of this part of the contract as shows that the Canal Co., had the power to declare the work abandoned. The consequences of this act of the company as between these parties, are irrelevant and immaterial. For if the company had the power to put an end to this contract, and did put an end to it on the fraudu- lent certificate of deft., it is enough for the purposes of this action, whatever may have been the consequence of the abandonment as be- tween the plff. and the Canal Co. Being therefore, immaterial in this cause, it need not have been set out. 6th. The use of the word " or " for and. Does not alter the meaning. 8th. The omission of the word yard after cubic. The sense supplies it. The subject spoken of is yards per cubic measure, and the narr gives the price at so much per cubic. 9th. " Section " for station. It is precisely the same thing as here used. Up to station No. is the termination of the section, and either form of expression designates the same ex- tent of the canal. ] Oth. " Planed " for placed. The sense makes it plain. llth. " Drains " for back- drains. There are no other drains than back-drains, and the repetition of the word back, is un- necessary. 12th. The variance in the price between 61 1-10 and 61 1-20 is wholly immaterial, as between these parties; and as the sum for the whole section is fixed, it could make no difference in the final calculation. 14th. " Deepening " for deficiency; an insensible word, which may be struck out without affecting the contract, and immaterial as between these parties. But as to the general principles. These actions on the case may be divided into three classes ; 1st, where the plff. seeks his remedy on the contract, as against the person who is a party to that contract. This is the strictest class in regard to proof of averments. Here the law insists on the utmost strictness, but not the strictness of the criminal law. 2nd. Where the action assumes more the aspect of a tort, yet is founded entirely on the contract, as in actions for warranty. Here though the action is for the tort, it is essentially grounded on the con- tract; and this is the class of cases cited on the other side. 3 Burr. K. 1586; 1 T. E. 447. Third class embraces cases like the present. When the complaint is for a tort unmixed with contract, and not founded in any shape on contract, where there is no privity through the contract between plff. and deft., but where the contract is alluded to only by way of inducement, to inform the court out of what cir- cumstances the tort arose. The contract here, is totally immaterial to the issue joined ; the deft, is not a party to it, nor bound by any one of its stipulations; and it is alluded to only to show a relative position of these parties, out of which the wrong arose. StarTcie, in p. 1548, is speaking of torts founded on the contract. See the note a reference to Mass. Eep. The doctrine in Bristow vs. Wright, (Douglass, 665J must be confined to contracts. 3 T. Rep. 643. Rogers, for plff. The argument on the other side and the authorities go upon the supposition, that we have assumed to set out this contract by its tenor. We have assumed to set it out only according to its sub- stance and legal effect. The cases are very different. A party need 38 RANDKL vs. WRIGHT. not set out the whole of a contract; even in actions on the contract. 3 Moore, 214; 4 C. L. R. 431 ; 1 Stark. 294; 2 C. L. R. 396. The most, and the most material variances alledged here, are nothing more than omissions. The others are mere verbal criticisms not affecting the sense. In 5 T. Rep. 497, Pippin vs. Solomons, Buller says he is aware that the doctrine in Bristow vs Wright, has been doubted. He again qualifies the decision there in Gwinnet vs. Philips. Bond averred in substance to " Lord Viscount Gave." Variance, " Ld. V. Gave." Held good enough. Debt on bond " to pay to att'y." Variance, "to pay to the party." Held good. 2 titr. 909, King vs. Morris. Judgment against " Urghart." Proof of a judgment against (blank.) Held good. The objections urged here would seem rather to apply to cases of criminal proceeding: and, even in these cases, the omission of words has been held not to vitiate ; as in the omission of the word " de- spaired; " whereby his life was greatly (despaired) of; the use of the word " undertood " for understood, &c. Phil. Ev. 166, note 6. A narr stating that differences existed between six persons, may be proved by a bond reciting differences between the three first, and three last. 5 C. L. R. 312, Cockrel vs. Gray; 7 Com. L. R. 403. Debt on bond to pay in twelve calendar months. The narr omitted the word " calendar " and held good though the law means lunar, and not calendar months, when months are spoken of generally. J. M. Clayton, for plff., stated, that though not regularly the counsel of plff. in this cause, he was counsel in another cause nearly allied to it, and now on the list. Without designing to enter at large into the points that have been debated, he would ask leave to sug- gest another matter for consideration, and to submit a motion in rela- tion to this case. Under the old constitution, the courts have in some cases, allowed amendments at this stage of the proceedings; in other cases they have refused it. We think it a proper occasion for finally settling the doctrine of amendments, and we submit that the best form in which it can be settled, is upon argument in the court in bank. This is an exceedingly important case, in reference both to the parties and to the principles in dispute, relative to the pleadings. In any event of a decision certainly if against the plff., there will be a bill of exceptions; and, in that case, we should go to a Court of Appeals, consisting of the Chancellor (Johns) and resident Judge (Black,) both of whom have been of counsel in this case on opposite sides, and who have therefore, prejudged it, and one of the judges here who must have prejudged it. From these circumstances and from a wish to have the important points here contested, fully argued before all the judges, we move the court to save the point in relation to the admissibility of this contract in evidence for hearing in the court in bank. Bayard, for deft., opposes the reservation of this question for a court in bank. I deny that there is any question of law in this case doubtful, or deserving of more than a moment's consideration by any lawyer. If there be any doubt, it is in the application of a plain question of law, rather than the decision of a doubtful question. But the exercise of this discretion by the court in saving points could in KANDEL vs. WIIIGHT. 39 no event do the other side any good. It is not possible for the court ever to render a judgment on this narr. It is a narr that would shame a tyro; and I take the liberty of saying so, because it was not filed by my friends on the other side. There is no allegation of special damage throughout this narr. Not a syllable in it that affirms that Kandel ever stuck a spade in the canal, or did an hour's work upon it. It is not even set forth that the company have declared the con- tract forfeited. He must therefore be nonsuited in any event, whether the contract be admitted or excluded. But we stand in this situation. We find a cause here which, upon the pleadings, we see it is impossible for the plff. to succeed with, and we tell our client, as we have told him, not to go to the expense of summoning wit- nesses ; that he needed no other defence to such a declaration than the poor abilities of his counsel; and thus, with a plain case before the court, they are asked to save a point and send us to a jury unprepared as it regards facts, because we relied, as we had a right to do, on the law. But the good of the community forbids the reservation of this point. There are thirty or forty causes now waiting for trial, and we are asked to consume another week in the trial of a cause the final determination of which, against the plff., is absolutely certain. The question of amendment at this stage of the proceedings I shall not argue, and this court refused to hear it argued at its late session in Sussex. I proceed then to the cause. The principles of pleading are founded on sound reason, justice and expediency. They are approved by sound policy, and tend to the more speedy and certain administration of justice. It has been the reproach of Lord Mansfield, thai he was too much of a civilian; too apt to look beyond the technical rules in the confused and uncer- tain search after the justice of the particular case. Yet we will place this cause on Lord Manfield's opinion. Wherever you set out a contract you must set it out truly, in sub- stance at least, and prove it as stated; and this, whether the action be upon the contract, or for a tort arising out of it. If a party does not choose to set out a contract in substance, he may plead it by the tenor, and it then becomes matter of description, and must be proved strictly as laid. The matters set forth may be material, immaterial or irrelevant. The first must be set out; the second need not be; but, if set out, it must be proved as stated: the third need not be pleaded; and, if pleaded, need not be proved. It may be struck out on motion. And in either of the first cases the question of variance may be raised on an objection to the evidence. If a contract be set out by the tenor, the party is held to half a letter. The reason is, he thus makes it matter of description, and the slightest variance destroys the identity. The amount of the cases is, that any vari- ance where the party sets out by the tenor is fatal; and neither the form of action, nor the materiality of the part set out makes and dif- ference. A part, at least, of this contract, the schedule, is set out, and so professes to be, in haec verba, by its tenor. 12 East, 452; Stark. 1548; 6 T. R. 771; 2 Doug. 665; 2 B. & Pul. 463; 12 C. L. R. 223; 4 T. R. 611; Gordon vs. Austin; Hoare vs. Mill; 4 M . & 8ci.iv. If this be a case of the third class stated by Mr. Read, so entirely 40 KANDEL vs. WEIGHT. distinct from contract, and where none need be alledged to found the action upon : if it be for a mere tort unconnected with contract, why urge the admission of this contract in evidence? I dismiss, there- fore, this class, stating generally that in any action where it is neces- sary to set out a contract either by way of inducement or otherwise, it must be proved as stated. Mr. Bayard then went into a particular examination of the vari- ances in this case, applying to them the above general principles, and concluding that many of them were actually material as to the result of this case as affecting the question of damages; and that some of those occurring in the schedule, which was set out by the tenor, would be fatal if it had only been set out in substance and legal effect. He also reviewed the cases cited on the other side. In answer to some remarks of Mr. Bayard, on the application to reserve the point, the counsel for the plff. now put in an application in writing to that effect. The Court said the provision of the constitution on this subject, re- lates to questions of difficulty and importance where the law is doubt- ful, and the object is to settle a vexed question before all the judges. In other cases, the party is left to his appeal. We entertain no doubts in this case, nor do we think it presents any question which, from its doubtful character, " ought to be decided before *11 the judges." The object of the constitution in vesting a discretion in the court as to saving points, was to confine them to cases where the law is unsettled. The Chief Justice proceeded : " We regret that this objection has been made, and we should have been glad if the case could have gone to the jury entirely on its merits; but the deft, had a right to make the objection, and we are bound to consider and decide it. This is an action on the case in tort, in which the plff. seeks to re- cover of the deft, damages for certain malicious and wrongful acts; and to sustain the action, it becomes necessary to set out, by. way of inducement, a certain contract between the plff. and the Chesapeake and Delaware Canal Company. This contract, it is true, is not the cause of action in the present case, but it is the foundation of the action, or that through which alone it can be sustained; for without setting this instrument out in his declaration, the plff. could not en- title himself to damages against the deft. This, therefore, was a material and necessary averment, without which the plff's. declaration would be bad, it could not be struck out and leave a right of action remaining. It is essential to the existence of the right of action. With respect to what averments are necessary to be proved, the rule is, that if the whole of an averment may be struck out without de- stroying the plff's right of action, it is not necessary to prove it, for it is mere surplusage; but it is otherwise, if the whole cannot be struck out without getting rid of a part, essential to the cause of action ; for then, though the averment be more particular than it need have been, the whole must be proved as laid, or the plff. cannot recover. 2 East, 452 ; 12 do. 452. A distinction is now established between allegations of substance EANDEL us. WRIGHT. 41 and allegations of matter of description. The former require to be substantially, the latter must be literally proved; and if in the action on the case a contract, written instrument, or other entire sub- ject matter, be alledged, it must be proved in the same manner as if ihe action were founded on it; the thing being entire and indivisible, ihe proof ought to support the allegation. And where a written in- strument is not described by its tenor, but merely according to its substance and effect, if it be not what the legal construction of the instrument warrants, the variance will be fatal, although the allega- tion on which the variance arises is immaterial. 3 Bos. & Pul. 463. And the law is the same whether the allegation be merely matter of inducement, or be the immediate cause of the action; or whether 1he action be debt, assumpsit or in tort. Many variances have been pointed out by the deft's. counsel be- tween the instrument of writing alledged in the declaration, and that offered in evidence. Among those pointed out, it may not be neces- sary to take notice of any others than those which occur in the fol- lowing clauses : "And to prevent misunderstandings and disputes it is hereby agreed, that Benjamin Wright, Esq. or some other com- petent engineer, to be selected by the party of the second part, shall }>e the inspector of the said works, and shall estimate the number of cubic yards of excavation, and also of embankment, and his esti- mate thereof when certified to the party of the second part, shall be final and conclusive between the parties;" "And it is further figreed, that if the opinion of the engineer-in-chief for the time being, in the employ of the party of the second part shall be, that the party of the first part refuses, or unreasonably neglects to prosecute this contract, such engineer may certify the same to the said party of the second part, and on his certificate the said party of the second part shall have the power of determining that he has abandoned it, and such determination shall altogether exonerate the said party of the second part, from every obligation imposed on them by the said con- 1ract except to pay as aforesaid for work already done." Two essential parts of this part of the contract have been omitted in the declaration, to wit : in the first clause the words " and his estimate thereof, when certified to the party of the second part," for with- out this certificate, the Company never could have declared the con- tract abandoned. It is an essential part of the agreement without which, the residue of the clause is materially and substantially altered. In the second clause, the words " except to pay as aforesaid, for work already done," are omitted in the declaration, and these words form a most material and important part of the contract, for without them, the plff. could not have demanded payment for the work he had accomplished. The declaration, therefore, sets out a contract substantially different from that offered in evidence. They are in fact different instruments, and not as they should be, identically the same. There are other variances between the instrument set out and that produced, equally fatal, but of which it is not necessary for the court to take notice. It is true, as has been urged by the plffs. counsel, that it is not necessary to set out the whole contract, when you profess only to 6 42 HANDEL vs. WRIGHT. set out in substance; but, when you attempt to set out any part of a contract according to its substance and legal effect, you must set it truly; and, if the sense or meaning of that part of the contract be altered, then it cannot be the same as that alledged to have been made. The proof does not support the allegation; there is a vari- ance, because the sense and meaning are different. It is enough to set out as inducement to the action, so much of a contract as will en- able the plff. to sustain his case : yet he must set out what he under- takes to alledge truly. No one can doubt but that the sense and meaning of the two clauses referred to the court, are substantially variant from the clauses set out in the declaration. They are not the same, and the variance between them we think fatal. The declaration purports to set out the schedule of prices in haec verba. Here the plaintiff has bound himself by his own allegation, to strict proof of the instrument. A mere variance in the spelling of a word, if the word be changed into one of a different meaning, will be fatal. But in this case substantial and material variances occur. In this contract, the parties attach very different meanings to the terms " section " and " station," and yet the declaration purport- ing to set out the schedule by words and figures, uses one for the other. The contract makes a distinction between " back-drains " and other drains, whereas, the declaration confounds them; the prices of the work as set out in the declaration, vary from the instru- ment produced ; and the words " deepening of excavation "' are used for " deficiency of excavation." Even if this schedule had been set out according to its substance and legal import, and not by its tenor, these variances would be fatal; because, the schedule is substantially different from that alledged in the declaration. Section cannot here mean station; deepening cannot be deficiency, nor one price mean another. The identity of this instrument is thus destroyed : it is not the same as that described in the declaration; and we are of opinion that, as the allegations and proofs should correspond in this case as in other cases, the instrument offered in evidence does not support the declaration. Whenever we discover a variance we must stop. We cannot in- quire whether it be a small or an important variance, or whether they be numerous, or few, it is sufficient that there is a variance, that it is a departure in the allegation of the instrument, from the instru- ment itself. If small and unimportant variations are permitted to pass unnoticed, where are you to stop? What will be considered as important variances? We know no better rule than to say where there is a variance, great or small, it is fatal. We are therefore of opinion that the contract offered in evidence is not admissible." The plff. offered another contract in evidence in support of the second count in his narr, which was objected to on the same grounds, and rejected without argument. The rejection of these contracts terminated the cause, and a non- suit was entered. Judgment of nonsuit. Read, Jr., and Rogers, for plff. Frame and J. A. Bayard, for deft. NEWBOLD & CRAVEN vs. WILKINS. 43 Note. The plfF. took a bill of exceptions to the opinion of the court rejecting this evidence, and carried the case to the Court of Appeals. At the June Term, 1832, that court affirmed the decision. The case was not much argued, if at all, in the Court of Appeals. WILLIAM L. NEWBOLD and THOMAS CRAVEN vs. THOMAS W. WILKINS. In an action on the warranty of a vessel at the suit of the owner, the master is not a competent witness to prove that the vessel was lost through unsound- ness and not from negligence. RULE to show cause why an inquisition should not be set aside. The deft, sold a vessel to pltf. for $1,003, and warranted her sound. She proved to be unsound and not sea worthy. Plffs. had been compelled to pay several sums on account of goods being dam- aged, and the vessel finally sunk. An action was brought on the warranty and judgment went by default. The plffs. issued a writ of inquiry, and the inquest found $20 damages. This was an appli- cation to set aside this inquisition. The principal ground relied on by plffs. was, that the jury rejected the testimony of the master of the vessel as to the unseaworthiness of the vessel, being the cause of her loss. It was proved that the vessel was lost in a gale. The master was called to prove that she did not sink from stress of weather or negligence, but on account of her unseaworthiness. The jury thought him interested by reason of his liability to the owners, if the vessel was lost by his default, and therefore rejected his testimony. The question here was whether this testimony ought to have been admitted. Plff's. counsel cited 1 Ph. Ev. 38; 2 Esp. N. P. 347; Petersdorf 15, p. 305, ref. 1 T. R. 601; do. 60; 3 do. 27. The interest which disqualifies a witness, must be an interest in the event of the suit, or in the record; where it will be evidence for or against him in another action. An interest in the question merely, will not render him incompetent. The deft's. counsel insisted that the master of the vessel, being liable over to the owners for negligence,, had such an interest in the matter, as rendered him incompetent. The result of this suit, in one way, would place him in a state of security; while, in the other, he would be made liable. He cited Peake N. P. Cases, 84, Rothe- *oe vs. Elton; 8 Taunt. 455; Morish vs. Foote; 11 C. L. R. 510; Kerrison vs. Coatesworth; 1 Esp. Cases, 339, Thompson vs. Bird* '.} Gallison, 48 ; 2 Stark. Evid. 769. And see 3 Stark. Ev. 1730, where all the cases are referred to. The Court, after taking time to consider the case, discharged the rule. Rogers, for plff. Rodney, for deft. 44 W. & PHILADELPHIA TURNPIKE Co. vs. BUSH. WILMINGTON and PHILADELPHIA TURNPIKE COMPANY, Appellants vs. SAMUEL BUSH, Respondent, p. b. A purchaser of stock need only look to the title of his vendor on the books of the company, and is not affected by previous irregularity in the transfers. APPEAL from the judgment of a justice of the peace. Narr. As- sumpsit for dividends. Plea, non-assumpsit. Issue. This was an action by Bush, for the dividends on nine shares of stock in this turnpike, standing in his name on the books of the company. This stock originally belonged to James Eaves. He placed the scrip in the hands of John Platt, as an indemnity against some suretyship; for which, however, John Platt never suffered any loss. John Platt holding the stock thus, assigned it (irregularly,) to James Platt. There was never any transfer on the books of the company, from Eaves to Platt. James Platt assigned the stock and transferred it regularly, on the books of the company to Potter, and Potter transferred it regularly in like manner, to Bush, the plff. below. The company has paid previous dividends on this stock to Bush. The stock was attached and sold as the property of James Eaves, who had never transferred it to any one on the books of the company. After this the company refused to pay the dividends to Bush; and this action was brought to recover them. The regularity of the transfer from Potter to Bush, by Edward Tatnall, the treasurer of the company, a special agent for that purpose, was proved. Verdict for plff. subject to the opinion of the court on these facts. J. A. Bayard, for respondent plff. below. This stock is regularly transferred to Bush on the books of the company, and we can look no further back. He is legally the owner of it. 9 Com. Law Rep., 444, Davis vs. Bank of England, (450.) Bank stock transferred on a forged power of attorney, the purchaser is entitled to recover the dividends from the bank. It is not neces- sary to look beyond the title of the seller on the books of the bank. Hamilton, for appl'ts. The Company is not bound by the acts of its officer out of the scope of his powers. An agent must act within his authority. Angel and Ames on Corp. 332-3; 7 Cranch, 299, 305. This transfer by Mr. Tatnall, was not within his authority, and the company are not bound by it. John Platt was never a member of this corporation, and he could not legally transfer the stock. A corporation can only act in pursuance of its charter. 2 Cranch, 166; D. L. 630-3. Wales, on the same side. No person can acquire a title to stock except under a regular trans- fer on the books of the Company. The person who buys the stock, and not the company, is bound to look into the title. 3 Day's R. 544; 2 Day's R. 579, 583; 3 Wheat. 390; 2 8. & Rawle, 77; 17 do. 15; 2 Wms. 77; 2 Atkyns. 121. Bayard, in reply. The cases cited on the other side are in relation to the first assignee. But this is the case of subsequent purchasers under regular trans- fers, in the books of the company. Those cases would apply to W. & PHILADELPHIA TURNPIKE Co. vs. BUSH. 45 Platt but not to Bush, who derives title under Potter by a regular assignment. Potter also had a regular title from James Platt. The ease in 9 Com. Law Rep. 444, lays down the principle as we have contend for it, in relation to subsequent assignees. We have only to look to the assignment to ourselves, and not to previous owners of the stock. There is no individuality in the shares of stock; and it cannot be traced back beyond the assignor and assignee. Cur. ad. vult. Nov. Term, 1832. HARRINGTON, Judge, now delivered the opinion of the court. This is an action for dividends on stock standing on the books of this company in the name of the plff. below. His title to the stock is derived, under a regular assignment on the books of the Company, from Elijah Potter the former holder, who also derived it, by regu- lar assignment, from James Platt. The Company has paid previous dividends to the plff. below ; but they refuse to pay any further divi- dends on account of a defect in the title of James Platt, a former liolder of the stock. It appears, in tracing back the title to this particular stock, that it formerly belonged to a certain James Eaves, who placed the scrip in the hands of John Platt, without any transfer on the Company's oooks, as an indemnity against some suretyship. While it was thus held by John Platt, he transferred it irregularly to James Platt, who subsequently passed the title by regular transfer to Potter, from -vhom the plff. derived by regular assignment. It appears that the liability in contemplation of which the scrip was placed in the hands of John Platt never arose ; and this stock has now been attached and sold as the .property of James Eaves. The defts. contend that the title has never been divested out of Eaves by any of these transfers. He never made or authorized any transfer on the books of the Company, and no holder of the scrip, not deriving title by regular transfer from Eaves, could himself make such an assignment as would divest Eaves' title. That not- withstanding the transfers from James Platt to Potter, and from Pot- ter to plff., were made in due form in the Company's books, the previous irregular assignments had not divested the title of Eaves, nor constituted them legal members of the corporation; and, conse- quently, that their transfers can have no operation in passing the title to this stock. It is further contended, that the acts of the treasurer of this company, in making these transfers, are not binding upon the Company, because they were without the scope of his authority. This is not a question between Eaves, the former holder of this stock, who still claims title to it, and the Company; nor is it be- tween Eaves and the plff. It may be, that these irregular transfers permitted by the Company, have not had the effect to divest the title of Eaves, but it does not follow that they have not invested the plff. with a legal claim both to the stock and the dividends. The former question was considered in the case of Davis vs. The Bank of England, 9 Com. L. E. 444, where it was decided, that property in stock is not transferred from the owner by being placed under a i'orged power of attorney, to the name of another person on the books of the bank; but the second proposition is not decided, that the as- 46 W. & PHILADELPHIA TURNPIKE Co. vs. BUSH. signee on the books of the bank, under a forged power of attorney, does not acquire the legal property in the stock; and the court go out of their way in order to prevent public alarm to express an opin- ion, that the bank cannot refuse to pay the dividends to subsequent purchasers of such stock. The principle of that opinion, is the gist of this case. The charter of this Company, authorizes transfers to be made only on their books. They keep a book for this purpose, and an officer to attend to this duty. The entry on their books of an assignment of stock to any individual, is evidence of that individual being the legal owner of that particular stock. And shall a subse- quent purchaser, buying on the faith of this evidence, be told by the Company, that their books are wrong; and that, though they exhibit his vendor as the legal owner of the stock he has purchased, the pro- perty is in fact in another person? The assignable nature of this kind of property constitutes its chief value; it would go far to des- troy this character if the purchaser is bound to look any further back than to the title of his vendor. And what better evidence can he have of this, than the books of the corporation, which declare him to be the owner, and recognize him as a member of the corporation. If this will not secure a purchaser it is difficult to say how he can be secured. In most cases, it will be impossible for him to trace indi- vidual stock back to the first proprietor, for in the frequent changes of this property, it becomes commingled and united in so many dif- ferent forms, that it is impossible to trace the course of its aliena- tion. The best and most reasonable principle, therefore, is that ex- pressed in the opinion of the court in the case cited, that it is not necessary for the purchaser of stock to look further for the title of his vendor, than the books of the Company. Nor is tb.is imposing any unreasonable responsibility on the Company. In all transfers they have the right and the power, to inquire fully into the title of the person proposing to make the transfer, and it is their duty to do so. In this case, ordinary prudence on the part of the turnpike company, would have prevented the present difficulty. No regular transfer was ever made on their books from Eaves to John Platt, nor from John Platt to James Platt. It was apparent to them therefore, for their own books showed it, that at the time they permitted James Platt to transfer to Potter, he had no authority to do so. Had the matter rested here, no liability on the part of the Company to sub- sequent purchasers could have arisen; but, instead of inquiring into the title of James Platt, thus appearing from their own books to be defective, as in ordinary prudence they ought to have done, they permitted him to make a regular transfer to Potter, and allowed Pot- ter to assign to plff., whom they have recognized as the legal proprie- tor, by the payment of the dividends. Shall they now dispute his right? We think not. We confine our opinion strictly to the case of a subsequent purcha- ser, which is the present case. Whether Potter would stand on the same ground we do not decide, and there is a clear distinction be- tween that case and this. Potter's vendor had no regular assign- ment; and, though it was the duty of the Company to look into his title, it was also the duty of Potter. In a question, therefore, be- tween Potter and the Company, both being guilty of negligence, and W. & PHILADELPHIA TURNPIKE Co. vs. BUSH. 47 the former being especially bound to know the title of his vendor, we do not say that the Company would be bound. The contrary is decided in 2 P. Wms. 77, Hilyard vs. South Sea Co. & Keaie, as to the effect of a forged letter of attorne)' to transfer stock ; but this decision does not appear to have been followed for Ashly vs. Black- well, (Ambler, 503) is contra. On the whole, we think the plff. entitled to recover these divi- dends, and that the verdict ought to stand. Judgment for plff. below. Hamilton and Wales, for appl't. J. A. Bayard, for respd't., p. b. JUNE TERM, 1832. The Lessee of MARTIN FORD vs. JOHN HAYS and MARGARET SUTTON, Tenants in possession. The lineal warranty of tenant in tail, in possession, descending with assets of equal value to the heir in tail, bars him from claiming the lands warranted. WRIT of Error to the justices of the Supreme Court. This was an ejectment for acres of land in Kent county, call- ed " Jones' fancy/' William Ford the grandfather of the lessor of the plff., being seized of the lands in question, by his will duly executed, bearing date the 15th August, 1771, devised the same to his son Daniel Ford, " to him and his heirs of his body lawfully begotten, or assigns." William Ford died seized, and Daniel Ford entered under this devise; and,, on the 25th Nov. 1784, conveyed the land by deed of bargain and sale'to John Harrington, his heirs and assigns forever, with the usual covenant of warranty against himself and his heirs, and all persons claiming through or under him or them. This deed was made before the passing of an act of assembly for docking estates tail. The deed was made to Harrington for a money consideration, but it effected an exchange of Jones' fancy by Daniel Ford, with the heirs of William Ford, Jr., his brother, for certain other property of equal value, de- vised by old William Ford, to his son William Ford, Jr., who died intestate and without issue. The exchange was thus effected. Da- niel Ford conveyed to Harrington, who paid the consideration, ac- cording to the recital of the deed, to the heirs of William Ford, Jr. ; and these heirs, to wit: Thomas Ford and wife, Martin Ford and wife, and William Downs and wife, in consideration thereof, con- veyed to Daniel Ford the lands so devised by William Ford, Sen., to William Ford, Jr., which had by his death descended to them. Martin Ford, the lessor of the plff., is the oldest son of Daniel Ford and is now the owner, by descent, of the lands so conveyed to his father. Margaret Sutton, one of the defts., was the daughter of Re- becca, one of the children of old William Ford; but she showed no title in herself except the presumption arising from a possession of more than thirty years. The other deft, was her tenant, or in by her permission. At the trial she proved that the lands acquired by Daniel Ford of the heirs of William Ford, Jr., in exchange for Jones* FORD'S LESSEE vs. HAYS & SUTTON. 49 fancy, were of equal value with that tract; that he died intestate and that lands of equal value descended from him to the lessor of the pi IV. Exceptions were taken to the charge of the court below; and the case came up and was argued here by Bates for plff. in error and Ridgely for deft., in error. All the judges were present, but Har- rington did not sit, having, as Chief Justice of the late Supreme Court, delivered the charge excepted to. JOHNS, JR., Chancellor, delivered the opinion of this court. Af- ter stating the case, he said: " In this cause, which has been fully argued and discussed by the counsel at bar, although several questions have been presented, the court do not intend to express any opinion except as to the point embraced in the ?th and 8th exceptions: this course we adopt be- cause we consider this the only question material to the determina- tion of the cause, and as we have all come to one conclusion on this point, the others are in consequence thereof, rendered immaterial. The seventh exception is to that part of the charge of the court below, which declared to the jurors that the lineal warranty of te- nant in tail in possession, descending with assets of equal value to the heir in tail, bars and estops such heir from claiming the land so warranted by his ancestor. The eighth exception is, ' for that the said justices charged the said jurors in such manner and by such words, as to convey to the said jurors, the opinion that the said war- ranty contained in the aforesaid deed from Daniel Ford to John Har- rington, was the lineal warranty of tenant in tail in possession, de- scending to the heir in tail, and left the said jury under that impres- sion; whereas, the said justices should have charged the said jurors as to the character and effect of that particular warranty/ }: That part of the charge referred to in the seventh and eighth ex- ceptions, was in the following words : " The only remaining point in the defence which the court have to consider, is the effect of the warranty contained in the deed from Daniel Ford to John Harrington. The defts. counsel contend that this covenant of warranty, descending on Martin Ford the plff., with lands of equal value descended from the warranting ancestor, shall bar him from claiming these lands in opposition to the deed of his father. The court have no doubt that at common law, if tenant in tail in possession conveyed his 'estate .tail, with warranty, this war- ranty shall bind his heir in tail, provided assets descend to that heir from the warranting ancestor of equal value, but not otherwise. But it is contended on the part of the plff. that this law is only applicable to feoffments and other conveyances at common law, and not to con- veyances operating under the statute of uses, such as a deed of bar- gain and sale.* In reply to this the deft's. counsel refer to our Act of Assembly, 1 Del. Laws, 221, sec. 4, under which they contend that a deed of bargain and sale has in all respects, the same operation in this state as a feoffment in England. This question has hereto- *Sed vide. Co. Litt. H. & But. notes, note 284. A bargain and sale with warranty may work a discontinuance. So a release, covenant tc stand seized, &c. See also, Littleton, sections 598-9, 600 and 601. 7 50 FORD'S LESSEE vs. HAYS & BUTTON. fore been agitated in the courts of this state, and the same distinction has been taken, but we are not aware that there has ever been a de- cision of it. The language of our Act of Assembly in regard to the operation of deeds of bargain and sale is very comprehensive. It declares that all deeds and conveyances made, &c., ' shall be of the same force and effect here, for the giving possession and seizen, and make good the title and assurance of the lands, tenements and here- ditaments, as deeds of feoffment with livery of seizin, or deeds en- rolled in any of the king's Courts of Record at Westminster, are or shall be in that part of Great Britain called England.' In 2 Yeates, 509, there is a case of ejectment in which one of the defences set up was the warranty of the plff's. ancestor, contained in a deed of bar- gain and sale, with assets descended to the heir, which was insisted upon as a bar to the plff's. claim ; to which he replied this same dis- tinction between conveyances at common law, and those taking ef- fect under the statute of uses. But the court decided that the plff. was barred. The question in the case of the Lessee of Fisher and Caton vs. Raymond, et al., which has been referred to, was very different from the question here. That was a case of the alienation of tenant for life with warranty of herself and husband ; and the ques- tion was, whether the remainderman was bound by the warranty of tenant for life; and this depended upon the question, whether the statute of 4t1t, and 5th Ann, cli. 16, was in force in this state. That statute declares that no such warranty shall bind the remainderman, and the court having decided that that statute was in force in this state, the defence was of course abandoned. (This was a decision of the Supreme Court, Ch. Jus. Johns presiding. The provisions of 4 and 5 Ann, ch. 16, have since been expressly enacted by Stat. Dig. 53.) Upon the whole, the court are of opinion that the lineal warranty of a tenant in tail in possession, descending with assets of equal value to the heir in tail, bars and estops such heir from claim- ing the lands so warranted by his ancestor/ ' ; If the deed of bargain and sale from Daniel Ford to John Harring- ton, dated November 25th, 1784, containing a special warranty upon his death leaving assets of equal value to descend to his heir, bars the estate tail, or estops the heir in tail, then the title of the lessor of the plff. is destroyed, and there is an end to the present action. In considering this question the court recognize the law to be as laid down in 2 Blac. Com. 301, that a lineal warranty by tenant in tail descending with assets is a bar to the issue in tail : and that tenant in tail in possession, without the forms of a fine arid recovery may in some cases, make a good conveyance in fee simple by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue. We therefore do consider that the deed of bargain and sale with warranty, dated the 25th Xov., 1784, executed by Daniel Ford, the tenant in tail in possession, conveying the land and premi- ses to John Harrington, his heirs and assigns, (the same having been acknowledged and recorded) did, by reason of the heir in tail having by descent from the grantor his ancestor real assets of equal value, bar and estop the heir, whose right of entry being thereby taken away, he cannot upon any principle maintain his action of ejectment. We, therefore, are of opinion the court below did not err in their BOOTH'S EX'R. vs. STOCKTON'S Ex'u. 51 charge to the jury, upon the point as stated in the appellant's seventh nnd eighth exceptions ; and that the judgment in the court below must ])e affirmed with costs." 2 Blac. Com. 11G, 203; Shep. Touch. L88; 4 Cruise 435, tit. 32, cli. 24, s. 25; 1 ditto 110; 4 do. 439; Litt. 712; 2 Co. Litt. 373; 2 //arr. < JTtf. 418 441 Pink. Arg't.; 2 Burr. 704, 715; 3 Co. Lilt. 333 a; 1 Del. Laws, 221; Digest 53. Judgment affirmed. Bates, for plif. in error. Ridgely, for defts. in error. JAMES BOOTH'S Ex'r. vs. JOHN STOCKTON'S Ex'r. Construction of the term " settlement under the hand of the party " in the Act of Limitations of 1793. What "mutual and running accounts" are not barred 'by the statute. WRIT of error to the Supreme Court, in and for Newcastle county. Johns, Jr., Chancellor, did not sit on account of his connexion with ;he respondent. This was an action of assumpsit brought by James Booth, now de- ceased, against John Stockton, also deceased. The declaration con- zained the usual counts, and also a count on the following instrument of writing. " We mutually promise to settle the subsisting accounts .and claims between us, and to pay the balance that may be due upon such settlement. Nov. 5, 1807. (Signed) James Booth, John Stockton." The deft, pleaded non-assumpsit, &c., and the Act of Limitations. The plff. replied generally, and took issue. On the trial, the jury found for the deft, under the charge of the court, upon :he plea of the Act of Limitations. Mr. Bayard, for plff. in error. The material questions are, 1st. Was this action barred by limi- tation? We have declared on this written agreement and mutual promise, which is in our view a promissory note, at least so far as regards limitation. It is true, the amount is to be ascertained on a settlement, but this does not affect the case. The distinction is be- tween an uncertain amount, and an unliquidated amount. The lat- ter is good as a promissory note. Before our late act of assembly, there was no limitation to a promissory note. The act don't bar in an .action on the case against a sheriff for money levied, &c., because the action is founded on a record: don't bar in an action of debt: and there is no difference whether you declare in case or in debt upon the record. Any agreement under hand takes the case out of the act. This was the only object of the agreement signed by Mr. Booth and Mr. Stockton. Second. This paper is an acknowledgment 01 an open and mutual account, and comes within the exception of merchants' accounts; which, according to the decisions, embraces any running and mutual accounts between persons not merchants. Peake N. P. 121; 3 Bac. .4&. 508; Bull. N. P. 149, 150. 52 BOOTH'S EX'E. vs. STOCKTON'S EX'R. Mr. Frame, for respondent. There is no count except the first that has any pretension to being founded on this agreement... They are the usual counts for money had and received, &c., and, with regard to them, the effect of this writing can be nothing more than a common acknowledgment, to take a case out of the Act of Limitations. But the invariable rule is, that this acknowledgment must be within three years before suit brought, i. e., within the time at which the statute would run, whe- ther that be three or six years. The promise is not relied on as a cause of action, but only as sufficient to stop the running of the stat. and it must be within the period of limitation. (Admitted by Mr. Bayard.) This instrument was dated in 18D7, and the action brought in 1827 twenty years, less seven days. The case in 3d Bacon was an action of debt on a record, which the statute expressely ex- cepts. In the action of debt the record must be set out. But the statute may be pleaded in assumpsit even for the same sclaim. The act of assembly speaks of actions founded on promissory notes, &c. where the note is the foundation of the action ; and not as in assump- sit where the general liability is the foundation, and the writing merely evidence. Bal. on Lim. 30, 83. Second. Are these mutual open and running accounts to prevent the statiite from running. I don't controvert the doctrine that this exception extends to others than merchants; but it only applies to open and running accounts, and accounts running too on both sides up to some period within three years of the commencement of the suit. 6 T. Rep. 189. In this case there arc no items within nine- teen years. This agreement is not within the saving clause of our act. It is not a settlement, nor is it a promissory note. The requisites of a promissory note are 1st. that it must be payable at all events and not on a contingency ; and secondly, that it must be for the payment of money only. Chitty on Bills, 55, 581 This writing is not for the payment of any certain sum, nor certainly for the payment of any sum; and it is for the doing of another act, a settlement, which cannot even be enforced. It is therefore contingent and executory. Executory agreements are always within the statute. With regard to the first count. It is said to be founded on this agreement. The first branch of this agreement is to settle accounts; the second, to pay any sum which may be found due. Now the first branch is undoubtedly an executory contract, and nothing in the na- ture of a promissory note, and this is the only part of the agreement declared on in the first count, for the breach there assigned is, that Stockton never did or would settle; and the failure to pay a sum of money that he had promised to pay on settlement could not be the foundation of an action in which the breach assigned is, that there never was a settlement. Third. As to the broad question, whether a promissory note was not barred by our Acts of Limitation, even before the passage of the late act, which expressly bars them. The question has been treat- ed as settled ; and I would not revive it but for its extreme clearness. It depends solely upon the principle, that if a statute which repeals another be itself repealed, it operates as a revival of the first law. 1 BOOTH'S EX'K. vs. STOCKTON'S I^X'R. 53 Blac. Com. 90; 12 Co. R. 7; 1 Del. L, 229; Id. 523, 2 vol. 1031; Id. 1133. If this be law, the decision which is said to have been made by our Court of Appeals, and which was made without argu- ment or much consideration, is certainly erroneous. Bayard, in reply. I understand the case in Ball, on Lim., differently. In debt, the act cannot be pleaded; in case the act may be pleaded, but it is no bar if the plff. reply matter not within the statute. The objection that this instrument is not declared on is too late. No such objec- tion was made below, and the paper was given in evidence. There is a promise to settle and to pay; the averment is of a refusal to set- tle and that a sum was due ; thence arises an implied assumpsit, for which the action is sustainable. The count is strictly on the agree- ment averring facts sufficient to sustain the action. The question whether the Act of Limitations would bar a promis- sory note is not open. It has been long since decided by the Court of Appeals, and acted on as the law. There is no contingency to vitiate this note; it is merely an unas- certained amount; at all events, it is an agreement within the equity of the statute. A promissory note to pay out of a particular fund is not a negotiable note, but it is not barred by the statute; and on the equity of the statute any agreement or promise in writing to pay mo- ney, though not strictly a promissory note, is not barred by limita- tions. CLAYTON Ch. Jus. of the Superior Court, delivered the following opinion of this Court : " This is an action of assumpsit brought by James Booth, dec'd., against John Stockton, dec'd. The first count in the declaration is upon the following promise in writing: "We mutually promise to settle the subsisting accounts and claims between us, and to pay the balance that may be due upon such settlement. Nov. 5, 1807. (Sign- ed) James Booth, John Stockton." The other counts are the com- mon counts for work and labor, &c. To this declaration the deft, pleaded the stat. limitation and the plff. replied generally. The suit was brought 29th Oct. 1827. This general replication was proper enough to all the counts but the first, but if it was intended to rely upon the objection to the plea of the stat. lim. that this was one of the exceptions out of the statute, or in other words, that the stat. was no bar to a suit upon this written promise, the plff. should not have re- plied to the plea to this count ; but, if he intended to raise the question of law, he ought to have demurred. By replying he joined issue upon a more question of fact: the deflt. insisting on the one hand that he had not promised within three years, and the plff. affirming that he had. No advantage was taken of this in the argument either in the court below or here ; and we are willing to decide the case upon the grounds upon which it was placed in argument before us. We shall not attempt to shake the authority of the case of Wil- liams vs. Pritcliard's adm'r-., decided in the late High Court of Errors and Appeals, in which it was determined that we have no stat. of limitations in this State extending to promissory notes, or set- tlements under the hands of the parties; and, altho' that decision may not have been entirely satisfactory to the bar, yet we consider 54 BOOTH'S EX'R. vs. STOCKTON'S EX'R. it not so indefensible as to call upon us, were we of a different opi- nion, to over-rule it if the case were again before us. But that case, or one like it, is not before us. The present is clearly distinguisha- ble from that. No one can seriously think that the instrument de- clared on here is either a promissory note, or a settlement under the hnnd of the party. It has no one quality of a promissory note; it is not a settlement under the hand of the party, as we understand those terms. It is a mere engagement to settle. It is declared on and treated as such by the plff. The breach assigned is for not settling. It is not for not paying a balance found due on settlement. It is not pretended that a settlement had taken place between the parties so as to authorize a suit upon this engagement for the non-payment of the balance found due. We confess that we cannot see the policy at this time of day of placing promissory notes, or any other engagements in writing for the payment of money, upon a different footing, as it regards the limitation of suits, from bonds and bills obligatory. They are equally free from all danger arising from the loss of the evidence of payment; for no prudent man would discharge a bond, or other en- gagement in writing for the payment of money, without getting possession of the evidence of his indebtedness; and thus, being in possession of that evidence, it is in his power to cancel it or to do with it as he pleases. It is no longer in the possession of his adver- sary to found a suit upon; and, therefore, one may be as safely left to the legal presumption of payment after a lapse of twenty years as the other. But when you come to apply this reasoning to every written acknowledgment of a subsisting antecedent debt, it would clearly be within the mischiefs intended to be obviated by the statutes of limitations. We will take the case before us as an illustration of our reasoning. Suppose that soon after the date of this writing Mr. Booth and Mr. Stockton had come to a settlement of all their ac- counts and one of them had been found indebted to the other; and suppose him to discharge the balance; what would have been the conduct of the parties in relation to the matter ? He against whom the balance was found due, upon paying it, would have taken a re- ceipt upon the accounts as settled. But would he ever have thought of asking for this written promise to settle? We apprehend not; and he never would have dreamed that he would be liable to a suit on it for twenty years afterwards. Or, to state a case which must be of almost daily occurrence. A merchant draws off his account and sends it to his customer for payment; the latter receives it and writes a letter saying that he has received the account, that it is not then convenient to pay it, but that he will do so in a short time. In a few days he goes and discharges the account and takes a recaipt upon it. No one under these circumstances would think of asking for the letter to be delivered up, or that it might be evidence in future against him. Yet if the principle contended for in this case be correct the merchant at any time afterwards, within twenty years, when his cus- tomer might be dead, his receipt lost or mislaid, and no one remain- ing acquainted with the circumstance and capable of explaining it, might bring his action, produce his books and exhibit this written acknowledgment of the debt, and what would prevent his recovery? XEWBOLD vs. RIDGEWAY & NEAVBOLU. 55 The case before us is certainly not within the letter of the exception to the statute, for it is neither a promissory note nor a settlement under the hand of the party; nor is it within the equity of the ex- ception, that is, within the policy and scope of the law. We would not confine ourselves strictly within the letter of the statute, but any case coming clearly within its spirit might be recognized as one not barred. The rule which we would lav down would be this: any en- gagement in writing for the payment of money which of itself would be the foundation of an action without needing proof aliunde to support it, would be an exception to the operation of the statute; but wherever such proof is needed; wherever you must support your action by oral proof, it is as much within the mischief designed to be remedied by the act as if the whole case depended on oral testi- mony and no writing existed. We are not disposed to comprehend within this rule any written engagements for the performance or non- performance of acts collateral to the payment of money, because such cases would evidently fall within the same mischief. The only operation of a written acknowledgment of an antecedent debt is, for the time, like any other acknowledgment, to take the case out of the statute; but the operation of the statute again imme- cl iately commences and will be a bar in three years. With regard to the other ground taken by the plfF s. counsel, that this is the case of mutual and running accounts between the parties, v r e admit that this writing does prove that there Avcre such mutual and running accounts between the parties at the time; and we ac- knowledge that mutual and running accounts are not barred by the stat. so long as they continue open and current. In this case the I'.irtios had no dealings or transactions between them after the 5th of Xov. 1807; there is no item of account occurring after that time; it was therefore no longer an open or current account, and is barred iifter the lapse of three years. We are therefore all of opinion that the judgment below ought to be affirmed. Judgment affirmed. J. A. Bayard, for plff. Frame, for resp't. EUPHEMIA XEWBOLD vs. RIDGEWAY & XEWBOLD. Damages for arrears of dower can be recovered against a purchaser only from the time of his title accrued. APPEAL from Chancery. Newcastle County. Black, A. J. did not sit, he having been of counsel below. This was a bill filed by Euphemia Newbold, against Anthony T. Xewbold the heir, and Jacob Ridgeway, a purchaser, for an assign- ment of dower, and for damages from the death of her husband. Barzilla Xewbold, the husband, died seized of the land in Feb. 1815, and devised it by will to his two sons Anthony T. and Daniel swbold. The heirs entered; and, by deed dated 4 June, 1822, made 56 XEWBOLD vs. RIDGEWAY & XEWBOLD. partition. On the 27 Jan. 1825, Anthony T. Newbold executed a mortgage of the premises to Jacob Ridgeway for $6,000. In Dec. ]s-J7, the property was sold by proceedings under this mortgage and purchased by. Ridge way. The bill claims dower and damages to the amount of one-third of the rents and profits from the death of Barzillu Xewbold, in 1815. The decree is for an account of the rents and profits of the land from the 25th March, 1827, the com- mencement of the year in which Ridgeway's title accrued. The ap- peal is from this decree. Mr. Rogers, for appellant. The single question is, whether the complainant is entitled to the rents from the death of her husband, or only from the time deft'l. title accrued. At common law, the widow was not entitled to any damages. By the statute of Merton 20 Hen. 3rd, damages were given to the value of the whole dower from the death of the hus- band ; and this whether against the heir or his alienee, if the husband died seized. If the husband does not die seized, damages can only be recovered against his alienee from the demand. Parke's Law of Dower, 301, 330-1 ; Bull. N. P. 116 ; Co. Litt. 33 a; 2 Bro. Ch. R. 62 0. The law gives dower out of the estate of the husband and the mcsne profits from his death. 1 Mad. ch. 242; 6 Johns R. 290, Hitchcock and wife vs. Harrington. A sale by the heir will not prevent the widow from recovering damages from the death of the ancestor. 5 Johns C. R. 482. Mr. Wales, for Ridgeway, one of the respondents. We contest the right of Euphemia Xewbold, to recover any dama- ges as against us. Barzilla and John Xewbold, were tenants in com- mon of 800 acres of land. Barzilla died and left his undivided moiety to his two sons, Anthony T., and Daniel Newbold, making a provision for his wife. She renounced and thus became entitled to dower in one-third of the moiety of this land held in common and undivided. Xo subsequent partition can affect her. After her re- nunciation, John Xewbold and Anthony T. and Daniel Xewbold, the heirs of Barzilla made an amicable partition of the lands so held in common. The widow now goes for dower in that part only of the land laid off to Anthony T., whereas she ought to have sought dower out of the whole estate of her husband Barzilla, being an un- divided moiety of the lands held in common. 2 Bac. Ab. B. Tit. Dower, s. 3, p. 127, (366;) Mitfd. 148, 158. This is clearly a bill for a part only of dower; and dower must be laid off out of the whole of an estate held in common: dower out of a part gives no certain estate. So decided in the cas3 of Waples and Waples, in Sussex, per Chancellor Ridgely. But as we are not appellants, this defence can avail us only so far as to get an affirmance of the present decree. Second. We contend that damages can only be given against Ridge- way from the time of his title accrued : that they must be apportioned among the several holders of the land according to the time of th-ir enjoyment. 4 John. C. C. 694; 3 Atk. 131; 3 Brown 264; 1 Paige C. R. 192, Russel vs. Austin. Arrears of dower against the pur- chaser of the premises in which dower is claimed, can only be *.:- EGBERTS ET AL. vs. BROOM ET AL. r>7 covered from the time of the purchase. Per Ckr. Wai worth. Bill for dower and damages against a purchaser. Decree for daina-i - confined to the date of deft's. purchase. Dick vs. Doughten, post. Mr. Rogers, in reply. An objection has been made for want of proper parties, John Xew- bold the other tenant in common, not being included. This ques- tion was settled in the court below on demurrer. This proceeding is only for dower out of that particular part of the land of Barzilla Xewbold, that was assigned to Anthony T. ^Xcwbold. The general principles of the doctrine I have advanced are not denied as applicable at law, and equity follows the law. The decree of the Court of Chancery was affirmed. Rogers, for appellant. Wales, for respondent. THOMAS EGBERTS, et al. vs. JAMES M. BROOM, et al. Can trust money be followed into land upon evidence, as against judgment creditors ? Quere. When the conveyance is to the trustee without noticing the trust, the applica- tion of the trust fund should be clearly proved. APPEAL from the Court of Chancery for ]STewcastle county. " Jacob Broom by his will, ordered his executors to sell his real estate, and from the proceeds, together with the balance of his per- sonal estate after payment of debts and specific legacies, to create a fund to be applied and distributed as follows : 1st. To invest so much thereof as the executors should think necessary to yield $600 per annum, to be paid by them to his wife ; the residue of the said fund to be applied and distributed as follows : one-seventh to J. M. Broom his son; one-seventh to his daughter Ann Littler, and five-sevenths to trustees, to liold one-seventh for the use of his daughter Hetty W. Lyon, thje proceeds to be paid to her separate use during her life; and after her death, to be paid to her children or legal repivs -iitn- tives; one-seventh for the use of his daughter Sarah Roberts, the proceeds to be paid in the same manner; one-seventh for the use of John and Rachel Roberts, the children of his deceased daughter Eli- sabeth, to be paid to them when they severally arrive at age, and in -he mean time, the proceeds to be paid to their maintenance and education; one-seventh for the use of his son Jacob P. Broom, the proceeds to be paid to him during his life, and after his death the sai'! one-seventh to be paid to his children or representatives, and 'he remaining one-seventh for the use of his daughter Livinia R. Tiroom, to be paid in the same manner. He constituted the said James M. Broom sole executor and trus- tee. The testator died in 1810. J. M. Broom took out letters; ard, in execution of the will, sold all the real estate so directed to be sold. He passed sundry administration accounts, the last of which is on the 7th May, 1816^ and shows a balance in his hands of 8 58 ROBERTS ET AL. vs. BROOM ET AL. $52,925 48; and also a trustee account on the 29th Nov. 181G, show- ing a balance of $ The said James M. Broom purchased sundry tracts of land and other real property in Pennsylvania, Delaware, Maryland and Ohio, to a very large amount, and he re-purchased the estate " Tusculum " which had been sold under the will of his father to John Lowber, which estate he improved at a considerable expense, for his own resi- dence. The deeds for all the property were taken to himself without any mention of the trust. J. M. Broom becoming embarrassed in his circumstances, and there being sundry judgments against him at the suit of defts., on the 31st May, 1826, executed a deed of assignment of all his prop- erty in Delaware, Maryland, Ohio or elsewhere, (except in Penn- sylvania) to John Lowber, in trust to pay off the said legatees of Jacob Broom, the several sums to which they were entitled under the will afs'd., they executing a release. This deed recited that certain sums of money came to the hands of the said J. M. Broom, as fcx- ecutor and trustee under the will afs'd. of Jacob Broom " which have not been paid over to the persons entitled to the same, or invested in any separate and distinct investment by him as trustee; but the said J. M. Broom with the said moneys hath purchassd sundry par- cels of real estate, intending that the same should be holden for the use and security of the persons so entitled to the said moneys." It further recited, that, from the depreciation of real estate " and the loss of rents and inadequacy of the same, to meet the payment of in- terest received by the said devisees, and made by the said J. M. Broom since the year 18 JO," and from other causes, he is unable to satisfy the demands of said legatees, but being desirous of doing ttem all the justice in his power, by appropriating these estates " which wen- intended for their use and benefit, to the satisfaction of their claims " he therefore made the said assignment. This as- signment was acknowledged before the Mayor of Philadelphia, on the day of its date. (31st May, 1826,) and recorded in Newcastle, Sept. 9, 1826. The dates of the several judgments claimed by defts. are as fol- lows: Bank of Delaware, judgment entered 31st Oct. 1818, princi- pal, interest and cost $1,824 58. Jeffries' ex'rs. judgment entered 18th Oct. 1825; bal. of prin., int. and costs $1,196 94. Monro's adm'r. judgment entered 1st March, 1821; bal. of prin., int. and costs $929 22. Bank of W. & Brandy wine, two judgments, 3rd June, 1826, and loth Dec. 1827, for $769 72. Under these circumstances the complainants', legatees under the will of Jacob Broom, filed their bill for the purpose of socuring these estates so piirchased as they contended with the trust funds and in the execution of the trusts, which gives them the equitable title to the lands, not to be effected by the debts or incumbrances of the trustee James M. Broom. The Chancellor decreed, at the June Term, 1831, against the complainants, and directed payment, out of the proceeds of the sales of James M. Broom's real estate, (which had been brought into court) of the afs'd. judgments of defts. respectively against J. M. Broopi. EGBERTS ET AL. rs. BROOM ET AL. 59 Whereupon, an appeal was prayed and granted. Mr. Bayard, for eomplt's. applt's. The lien of cestui que trust is good against the trustee and per- sons claiming under him ; and against all persons except purchasers, and quasi purchasers for valuable consideration without notice. As it relates to the trustee, the lien of cestui qui trust is apparent wher- ever the trust fund can be traced; and the mode of tracing it, without express evidence on the deeds, may be by parol evidence or the decla- rations of the trustee, particularly his declarations in writing. A trust fund traced into other property attaches the lien of the trust on that property, even at law. If a trustee purchase land and take the deeds in his own name, the trust is still good if it can be traced. In equity the land is the land of cestui qui trust. Parol evidence may be admitted to establish the trust. Willes R. 432; I Salk. 161; 1 T. Rep. 619; 5 Vczeij 169; 10 Johns. 63; Sugd. Vend. 454, (427) ; 3 Johns. 216; Ami I or 409; 1 Dallas 193; 2 Washington 441; 3 Blnney 302; 8 Vezey 150; 17 do. 49. The exceptions are a mort- gagee, who -is a quasi purchaser, and a purchaser for valuable con- sideration without notice, and no others. The rights of the judg- ment creditor are subject to this equity. It is not a specific pledge of this land, but a general security against the person, property and land. The judgment binds the land generally and not specially; and is subject to the equitable lines of others. It may be objected that this is a secret lien; impolitic and improper, but would it not be more impolitic to unsettle established law, to break into a great system and mar its features. Xor can we readily perceive the ulti- mate effects of such a deviation from established principles. The moment you establish that a judgment, creditor is on the same foot- ing with a mortgagee, it runs into an infinite range of effects which may at some time startle. 1 Paige Rep. 125, 283; 1 P. Wms. 277-8; 2 do. 491. Explains the difference between a judgment credi- tor and a mortgagee. But even in the case of a purchaser for valu- able consideration without notice, it is a mere defence, and not a ground of suit; and a defence to be set up in a very special manner. The deft, to establish a protective equity must show he has becm imposed on : he must deny notice on oath, &c. If the circumstances of our people should require a modification of this rule, it would be that the complainant when this lien is set up, should be entitled to make defence, stating that the deft, in the judgment was in posses- sion of the land ; that he loaned the money on the credit of the land, and declare on oath that he had no notice of the lien. Jacob Broom's will gives nearly all his property in trust with privi- lege to the trustee to invest. The will is matter of public record which the public are bound to take notice of if it affects them. J. M. Broom admits that he bought this land with the trust money for the purpose of the trust; the principle of the cases only requires proof of this fact by the admission of the trustee. Mr. La timer, for respondents. There is in all the cases cited, a redeeming feature distinguishing them from the present; the investment of the trust money is fully proved. We contend, 1st. That the purchase of the land in this case with the trust money is not sufficiently proved, and 2d. That 60 ROBEHTS ET AL. VS. BttOOM ET AL. the length of time will deprive complainants of their remedy, for their own laches. Where there is no direction to lay out trust money in a particular way, no presumption can arise in its favor and much stronger evi- dence of the investment is required. There is no direction jn the will of Jacob Broom, that this money should be invested in land. He directs a conversion of all his lands into money. The only proof we have is the declaration of J. M. Broom in the deed to Lowber, and this is far from being explicit. Tt is made sixteen years after the testator's death. He had uniformly used the land as his own; occu- pied and improved Tusculum; always charges himself with money, and when he becomes insolvent, endeavours to secure the legatees to the injury of his creditors. The property claimed exceeds the amount of the trust money. All the heirs paid off but two. Broom made purchases to the amount of $39,000. Complainants have been paid about $3,000, leaving a small balance of $ , fop which the whole of this property is said to be held in trust. It is impossible. The mingling of money destroys the trust. Second. Complainants are barred by their own laches. Secret liens are against the policy of law; and cestuis que trust standing by and seeing the rights of others prejudiced by their secret liens be- come accessaries to the fraud, and cannot in a Court of Equity, set up their lien. He cited 2 Fonb. Eq. 119, note C; 4 Vezey 108, 118; 10 do. 511, 516; Finch Pr. 88; Ami. 413; 2 8. & Rawle 521; 2 Atk. 72; 10 Johns 65; 7 Wheat. 56-7; 2 Wash. R. 441. Mr. Wales, for respondents. The extent to which the doctrine is contended for is new and dan- gerous new as regards the English law; more objectionable here. It is not pretended that these judgments were taken with notice of the trust. They bind all the lands of J. M. Broom. They are en- titled to sell all the estate of J. M. Broom in the land, and however the question might be as between purchasers, and those claiming to have the equitable title, the bill is misconceived as against judgment creditors. If a decree was had against the purchasers, they would have no remedy against the judgment creditors, to recover back the purchase money. But as to the trust. It must arise from the will of Jacob Broom ; or from the declaration of truSt ; or by operation of law. The will does not direct such an investment ; the fair inference is the contrary. The recital in the deed to Lowber does not amount to a declaration of trust; and, if it did, it is contradicted by the evi- dence. The very conveyance in that deed is upon terms which shows that it was not considered trust property. But the acts of J. M. Broom in relation to this property, and his charging himself with the money, payment of interest, &c., are conclusive. Neither can the trust arise from operation of law, for this cannot be except where the identical money is traced, and in no case where the lien of another is affected. The question is always between trustee and cestui que trust. Willes 402; 1 Salk. 161; 5 Vezey 169; 10 Johns. 63. With regard to the policy of this doctrine here; it is against the whole spirit of our laws. Credit here is always given on the posses- sion of land; and a doctrine giving effect to secret and invisible EGBERTS ET AL. vs. BROOM ET AL. 61 liens, would spread consternation in the community. Our defeazance laws; stat. frauds, &c., make careful provision against them. Mr. Read, Jr., for respondents. Denies the trust. Every confidence is not a trust. An executor is not a trustee. To make a trust both the object must be declared and the instrument named. J. M. Broom has made no declaration of his trust. He purchased land very extensively; no distinction in his purchases and who can say what land was bought with this money. But suppose he had made a full declaration of trust, would i>t be evidence as against judgment creditors. Surely not. No prin- ciple of evidence better settled. The admission is evidence as be- tween the trustee and cestui que trust, but not as against third oersons. Complainants are barred by their laches. The law is for the vigi- lant, and not for the sleeping; and their claim is tainted with fraud. There has been a delay of sixteen years. There is a strict resemblance between the estate Segely in the case in Washington's Pep. and Tusculum in this case. Arnb. 633; 10 Vezey 511 ; 2 Wash. Rep. 441. Mr. Rogers, for appellants in reply. To Mr. Wales' first point. That this question is between cestui que trust and purchasers of the land, and not between them and, [judgment creditors. This bill was filed against the judgment credi- tors before the sale, which was made under the order of court, and ihe proceeds are in court. Second. I assume it as a principle admitted, that trust lands are not subject to the debts of the trustee; and that trust money in- vested in land, gives the equitable title to cestui que trust, not to be affected by the debts of the trustee. I concede that as it regards the tracing of the money, it lies on us to prove the investment. But as to the evidence, the cases cited furnish no general rule. It appears from the declaration of J. M. Broom, that this land was purchased with trust mone} r . Can there be any doubt that this evi- dence is good between him and the complainants; and does it make any difference as it regards third persons. Is it evidence against judgment creditors? All their demands on this fund are deduced through J. M. Broom, and is not evidence against him equally evi- dence against all persons who derive their interest through him? Cur. adv. vult. June Term, 1833. HARRINGTON, J., delivered the opinion of the court. After stating the case ut ante. "It has been long established in England, that upon sufficient nroof of trust money having been laid out in the purchase of land, a trust would result to those entitled to the money; and the later cases es- tablish that the fact of such purchase may be proved by parol evi- dence. Sugd. 455. Miich greater strictness was formerly required i n the proof of the application of the trust money to the specific pur- chase. It is still held, that when the conveyance is taken in the rame of the trustee without the trust appearing on the face of the deeds, the estate will not be liable to the trust unless the application of the purchase money can be clearly proved. Sugd. 427. 62 ROBERTS ET AL. vs. BROOM ET AL. Upon a review of the cases, it will appear that the doubt has been rather upon the proof than as to the application of principles of equity. In come cases the court has resorted to implications in sup- port of the lien arising from the inability of the trustee to purchase with his own funds, and from his being under an obligation to make such un investment of the trust money. On the other hand it has been held, that where the trustee was not under an obligation to make the specific investment, or where he considered himself entitled lo the trust money, no presumption could be raised, in opposition to this fact, that he intended any lands he may have bought with the trust money, to be subject to the trust. In Perry vs. Philips, 4 Vezey 117, the Lord Chancellor (Lough- borough,) says ' I can find no case, no authority or principle, that enables me where there is not a ground of presumption, where in point of fact I must be satisfied the party did not mean to execute the trust, or conceive himself to be under a trust, to hold that the es- tate he purchased is subject to the trust.' And Fonblanque (Fonb. Eq. 120,) in remarking on this opinion says ' That from this observation of Lord Loughborough, it may be collected that in his lordship's opinion, it is not only necessary that the trustee be under an obligation to purchase land, but that he be apprised of such obligation, and that nothing appears to rebut the presumption of his intention to discharge it.' In investigating the fact of the purchase of these lands by James M. Broom the trustee, with the trust money, and for the purposes of the trust, the first remark upon the evidence, suggested by the principle of the cases referred to, is, that he was under no obligation to invest this trust money in the purchase of land; and that. he was perfectly competent from other sources, to buy these lands for his own use. The will of Jacob Broom so far from directing the pro- ceeds of his property to be invested in real estate, orders all his real estate to be converted into money, to create a fund to be applied and distributed according to the directions of his will: and that part of this fund bequeathed to complainants, is directed to be paid ' to trus- tees to hold ' for the use of complainants in specified proportions ' the proceeds thereof to be paid to them ' as directed by the said will. And that it was so held by James M. Broom, without reference to and specific investment in real estate, appears from his administra- tion and trustee accounts charging himself with the money ; and from the payment of interest to the legatees which he alledges in the deed of assignment to Lowber, to have been a principal cause of his embar- rassment. There is, therefore, from these facts, no ground of pre- sumption that Broom conceived himself to be under an obligation in the execution of his trust, to invest this money in land, nor that in the purchase of this property, his object and intention were to dis- charge such obligation. And, connected with the fact of the con- veyance being taken in his name without any mention of the trust, it is a case where the complainants will be held to strict proof of the application of the purchase mone)*. What is the proof relied on? It consists in the declaration of trust made by J. M. Broom, in the deed of assignment to Lowber. Jacob Broom the testator, died in 1810. From that time until the date EGBERTS ET AL. vs. BROOM ET AL. G3 of this assignment in 1826, James M. Broom purchased and held a large real estate in Pennsylvania, Delaware, Maryland and Ohio, iar exceeding the amount of money due from Mm to the com- plainants. The conveyances were all made to him personally with- out any mention of a trust; and he occupied, improved, sold, mort- gaged and otherwise charged them with his own responsibilities ;i- his own property. He held himself out to the world as the proprietor; * ; .nd upon the general security of these lands he obtained credit. At the same time he treated his liability to complainants as a debt due from him to them personally, not charged upon, or invested in any particular portion of his estate. In his trustee account he charged liimself with money; he received the rents and profits of the lands LS his own, and, though these, were inadequate, as he alleges, to keep down the interest of the sum due the legatees under his father's will, he still considered himself liable to the amount of that in- terest. Under these circumstances, being embarrassed by this debt and by judgments and mortgages standing against him at the suit of respondents, he executed a deed in 1826, to John Lowber, conveying him all his land in Delaware, Maryland, Ohio or else- where, except in Pennsylvania, in trust to pay off these legacies to such of the legatees as should execute a release. The recital to this deed contains the declaration of trust upon which it is designed to establish that these lands were bought with the trust money in execution of the trust, and that the equitable title thereto, had always 1 eeri in the cestuis que trust and not in Broom. This deed recites that certain sums of money had come to the hands of J. M. Broom as (xecutor and trustee under the will of his father ' which have not l-een paid over to the persons entitled to the same or invested in any separate and distinct investment by him as trustee; but that the i-aid J. M. Broom with the said moneys, hat purchased sundry par- cels of real estate, intending that the same shoiild be holden for the v.se and security of the persons so entitled to the said moneys.' This declaration, if disconnected from the facts in the cause could not be considered as very unequivocal: it sets out with the distinct avowal that the money had not been invested in any separate and distinct in- vestment by him as trustee. But considered in connection with the evidence it amounts to nothing more than this, that Mr. Broom 1 eing indebted to certain legatees, holding in his hands a fund which he was directed by the will of his father to hold and to pay over the proceeds to the legatees, made frequent purchases of lands and real estate without any reference to his trust, but which he regarded with all the rest of his property, as a security for the debt due to these legatees. The idea of an investment of their money in real estate for their use so as to give them a title to the land is totally inconsist- ent with all his conduct in relation to the land that he purchased and held. The expensive improvements of Tusculum made by Mr. Broom, and his mortgage of the Hazlitt farm to Mrs. Delaplaine, conclusively show that this idea of their being trust estates, had its origin at a period long subsequent, perhaps at the time when in the deed of assignment to Lowber, he declares, that having become em- barrassed by the payment of interest to these legatees, he is desirous o. 'appropriating' these estates to the payment of their claim. 64 ROBERTS ET AL. vs. BHOOM ET AL. From this view of the case we cannot say that the investment 01 this trust money in these lauds has been proved either clearly or satisfactorily to us so as to induce us to recognize an equitable lien of these legatees upon the land discharged from the claims of the judg- ment creditors: and we design to rest our judgment on this ground without deciding several other questions of importance raised in this cause, particularly that which relates to the application of this gene- ral doctrine of the equitable lien of cestui que trust as established in England to our own country. In liailey vs. Greenleaf et al. (7 Wheat. 57.) Ch. Jus. Marshall says ' tn the United States the claims of creditors stand on high ground. There is not perhaps a state in the union the laws of which do not make all conveyances not recorded and all secret trusts void as to creditors as well as subse- quent purchasers without notice.' On this occasion, however, we waive a decision of the general question which is unnecessary as the proof does not satisfy us of the investment ; and we are all of opinion that the decree of the Court of Chancery ought to be affirmed. (Xote.) It was contended in the argument that the decree was erroneous, so far as regarded the proceeds of sale of the house in Wilmington, bought by Mr. Wales, because it was sold as the prop- erty of Jacob Broom, and was never the property of J. M. Broom either as trustee or otherwise. The same objection was made in re- lation to two tracts sold to the Morrissons, one for $155: and the other for $425 : and also a piece of marsh sold to J. Wales for $200. It was also contended that the decree could not embrace the whole proceeds of the Bohemia Manor farm, as a part thereof, about forty acres, is in Maryland, and not bound by these judgments. The same objection was made to the decree so far as it applies the pro- ceeds of the Logue farm to these judgments. This farm lies alto- gether in Maryland, and sold for $305. The only evidence in the cause in relation to the lot bought by J. Morrison, and the tract bought by T. Morrison is furnished by the complainant's bill which sets forth these tracts as a part of the land bought by James M. Broom with the trust funds. There is therefore no reason for ex- cepting these particular tracts from the operation of the decree. The proceeds of the sales of the other property, exclusive of the house in Wilmington sold to Mr. Wales, and also exclusive of the Logue farm in Maryland, and of that part of the Bohemia Manor farm that lies in Maryland, are amply sufficient to cover the amount ordered by the decree to be paid to the judgment creditors, and leave a large sum unappropriated. Without inquiring then whether the creditors are entitled to the proceeds of this property, there being a sufficient fund for the payment of their claims without it, the decree must stand. The sales of the property were as follows : The Clement's creek marsh sold to Mr. Wales for " Stable lot to J. Morrisson for " Grave yard lot to Lowber for t: Woodland on Kennet road to J. Martin for '* Holland's creek marsh to J. Morrison for The Oldham farm on the manor, 450a.. (40 a. in Mary- land,) sold to Smith for $1900 ; deduct $200 for the 40 a. in Maryland 1700 YATES & M'!NTYEE vs. PAINE, BURGESS, ET AL. 65 Tusculum sold by the shff. to Doct. Martin for $5700; and the Hazlitt farm sold to Higgins for $3035; These tracts were sold on TatnalFs judgment, and Delaplaine's mortgage, and the sheriff paid into Coiirt (after deducting these claims, as I suppose) this balance 503G 8260 House in Wilmington sold to Wales, which complain- ants contend is not bound by the judgments vs. J. M. Broom 3250 Logue farm,' in Maryland, sold to Wales for 305 $11,815 Sums ordered to be paid by the Decree: Bank of Delaware $1824 58 Executors of Jeffries 1196 94 Administrators of Monro 929 22 Bank of Wilmington and Brandy wine 769 71 4,720 45 Surplus of sales $7,094 55 Or $3,539 55, exclusive of the house in Wilmington; the Logue farm and part of the Bohemia Manor farm. Decree affirmed with costs. J. A. Bayard and Rogers for appellants. Latimer, Wales and Reed, Jr. for judg't. creditors. JOSEPH VANNINI, AKCHIBALD M'INTYKE & JOHN B. YATES vs. JOHN PAINE, and DANIEL BUEGESS et al. Jurisdiction of State Courts in Patent Cases. Persons undertaking to draw a lottery must comply with all the requirements of the grant. Bill dismissed because complainants failed to set out that they had given bonds as required by the act authorizing them to draw a lottery. APPEAL from Chancery. New-Castle County. Joseph Vannini was the inventor and patentee of a mode of draw- ing lotteries and making schemes for lotteries on the combination and permutation principle, which has been adopted and used by Yates and M'Intyre, by authority from him. Yates & M'Intyre having purchased some lottery privileges in the State of Delaware, proceeded to drawing in a series of classes. Paine & Burgess the respts. also lottery brokers, purchased the privilege of drawing a lottery under the act for the benefit of the Trappe School, and issued their scheme upon the plan of Yates & M'Intyre or Vannini's patent. Yates & M'Intyre applied for an Injunction, which was ordered by Chr. Ridgely; afterwards the case came up before Johns, Jr. Chr., and the bill was dismissed. From this decree the appeal was taken. 9 66 YATES & M'!NTYRE vs. PAINE, BURGESS, ET AL. Rogers for appl'ts. The principal questions in the discussion before Chr. Ridgely were 1st. That the State court had no jurisdiction, it being a ques- tion on a patent and cognizable in the Circuit Court only. 3d. That the tfcts of Assembly authorizing the drawing of these lotteries did not afford ground for relief; and 3d. That Vannini's patent was not original: that the same plan was to be found in Dobson's Encyclo- paedia, tit. Lottery. As to Jurisdiction. The original act of Congress, 1793, February, gives jurisdiction to the Circuit Court, and " any other courts " &c. In the act of 15 Feb. 1819, the words " any other courts " &c., are 'omitted whence it was contended that the Circuit Court had exclu- sive jurisdiction. We contest this principle; and again, we say that if the jurisdiction is exclusive as to the mere question of patent, we have a distinct ground of action arising under our laws and the ques- tion of patent right coming incidentally up, will not deprive us of relief in the State Court. We admit that the Circuit Court has jurisdiction; but we say that it is not exclusive. Congress may ex- clude the State Courts, but they have not done it. An express ex- clusion of the State Courts is necessary or they retain their jurisdic- tion. The Circuit Court has no jurisdiction where the parties are citizens of the same State. In such case there is no remedy if the State Courts are excluded. If neither party reside in the State where suit is brought the Court has no jurisdiction. Congress has the exclusive power of granting patents. Marshalls bond may be sued in the State Courts and also in the Circuit Court. In certain cases suit must be brought in the State Courts. In relation to the validity of the patent: the specification. A mere method or prin- ciple may be patented. He cited Fessenden, 402; 5 Wheat. 25-6-7; 5 Cranch, 85; Cox Dig. 433 ; Const. Art. 3, sec. 2 ; 5 vol. L, U. 8. 268 ; Serg. C. Law, 109; 1 Mason 520; 9 Johns. 581; 12 Wheat. 129; 5 Cranch 51; 3 Wheat, appx. 20; Bui. N. P. 77; 2 H. Blac, 463. Latimer, for respondents. The application is to restrain defts. from using an invention claim- ed by Vannini, of which Yates & M'Intyre have bought the right for this State. Yates & M'Intyre bought the lottery privileges gran- ted by three acts of Assembly in favor of Immanuel Church, 6 Del. L. 74. Middletown Academy, 6 Del. L. 537, and the Newark Aca- demy 5 Del. L. 378, 6 Id. 555. Defts. bought the grant in favor of the Trappe School. 4 Del. L. 35. This purchase is said to be illegal. It is denied that the trustees of the Trappe School could assign the grant. The application therefore is to restrain defts. from drawing an unauthorized lottery which is an illegal act. Digest 138. The Court will not restrain a man from doing an illegal act, for it will not presume that he will violate the law. Peters' Rep. Chero- kee Nation vs. Georgia, Feb. Term, 1831, of the Sup. Court. (See Mr. Jus. Johnson's opinion.) For such an act the defts. would be liable to a criminal prosecution. This is not a subject for a patent and the specification does not sus- tain it. It is a patent for an improvement for a mere method. A patent cannot be for a principle, though it may be for the applica- YATES & M'INTYRE vs. PAINE, BURGESS ET AL. 67 rion of a principle to machinery. 2 H. Black. 482, 485, 495; 1 Peters C. R. 341-2; 2 G. L. E. 424; 3 Washg. R. 196. Vannini's improvement is not connected with any construction of matter or application to machinery. It is a mere abstraction. The invention s not new. It is simply the common arithmetical rules of combi- nation and permutation. The invention must be useful not mis- chievous or immoral. Lotteries are declared immoral. The patent is for an invention and the specification is of an improvement. This makes it void. 4 Washg. 12; 1 Del. L. ; 3 Wheat. 476; Fess. 145, 149 ; 2 C. L. R. 354. Second. The State Courts have no jurisdiction of questions under ;he patent laws. Complainants seek relief chiefly on the ground of a violation of their patent right. 1 Kent. Com. 306; 9 Johns. R. .375, 7 Id. 144; 4 Washg. 109; 1 Kent C. 383. Rogers, for appellant in reply. A distinct ground of our going into Chancery was the violation of our rights under our contracts made by authority of the laws of this State. Complainants have purchased under three acts of Assembly. They agreed to give the Newark Academy $50,000; the Middle- town Academy $9,000; and Immanuel Church $15,000, for the pri- vilege of drawing under their grants. The defts. coine in to draw a lottery unauthorized by the law, and the effect is to deprive com- plainants of the benefit "of their contract. Have we not a right to enjoin them? The Cherokee case has been cited. The distinction is this : we have a vested interest an acquired right, which is to be violated. We ask the interference of the court in reference to our interests and not in vindication of the public law. Is it not strange that we cannot be protected against a civil injury because it involves a crime. Does the public injury merge our private wrong; or the vindication of the crime redress our injury? The same objection would apply in the Circuit Court of the IT. S., and we would be remediless. The illegality of deft's. lottery is apparent. The law (6 D. L. 35,) grants to the trustees of the Trappe School power to draw a lottery to raise $600. The grant to them is personal and is confined to them or a majority of them. They are required to give bond, &c. Yet no bond has been given the trust has been assigned without authority, and under this void authority defts. have undertaken to draw, in classes, $30,000. As to the jurisdiction: the omission in the act of 1800, of the words in the act of 1793, does not exclude the State Courts, and unless Congress expressly excludes the State Courts, the jurisdiction remains. 5 Cranch. R. 84. Curia advisare vult. June Term, 1833. Judge Rol)inson delivered the following opinion of the Court: " This cause came before the Court by an appeal from the decree of the Chancellor, made on the 24th of February, 1832, in the Court of Chancery, held at Newcastle, by which the Bill filed in that Court was dismissed and the Injunction, which had been issued to restrain Paine & Burgess from the infringement of a patent right, was dissolved. The Bill states that Vannini is the original inventor of a plan for constructing and drawing lotteries, and that he had 68 YATES & M'!NTYRE vs. FAINE, BURGESS ET AL. obtained a patent therefor. That a contract was made between the plffs., by which Yates & M'Intyre acquired the exclusive right of constructing and drawing lotteries within the State of Delaware, ac- cording to said invention, in which Vannini has an interest. That Yates & M'Intyre in 1825, entered into contracts with the managers of the Newark College lottery, and with the Wardens and Vestry of Jmmanuel Church lottery, and with the trustees of the Academy of Middletown, by which they agreed to pay to each of those institu- tions the sums they were respectively authorized by the Legislature of this State to raise by way of Lottery. That they gave bonds with sufficient and approved security for, the due performance of their afsd. contracts, and had in progress lotteries founded on s,aid. patent and in part on the afsd. acts of assembly. Paine & Burgess are charged with having issued notices and schemes for drawing lot- teries in this State, and with having adopted and designing to use the plan invented by Vannini in violation of his patent, and pretending to derive the power under an act of the General Assembly of this State to enable the trustees of the Trappe School to raise a sum of money by a lottery. But it is alledged that this act of assembly had not been complied with by the Trustees, by giving the bond to the trea- surer of the State of Delaware, which the act required to be given,, previous to their entering upon their duties; wherefore the said Paine & Burgess did not obtain any authority to draw said lottery.. And it is charged that if Paine & Burgess are permitted to draw said, lottery, they, Yates & M'lntyre, will sustain loss and injury irre- parable. Paine & Burgess admit the most important facts set forth in the bill but deny that Vannini is the original inventor of the plan for which he obtained his patent; and that his description of the invention is such as the act of Congress required ; and they insist that the patent is null and void: and that the matters and things set forth in the bill exclusively belong to the Courts of the United States. The case was ably debated on both sides at the last term as to the jurisdiction of the State Courts, in causes arising under the patent laws of the United States ; and as to the validity of the patent right to Vinnini ; but the court deem it unnecessary to express any opinion on these questions. At the time Yates & M'Intyre made contracts for the lottery privileges set forth in their bill we had in force an act of assembly prohibiting lotteries, the preamble of which declares- that they are pernicious and destructive to frugality and industry and introductive of idleness and immorality, and against the common good and general welfare. It therefore cannot be admitted that the plffs. have a right to use an invention for drawing lotteries in this State, merely because they have a patent for it under the United States. A person might with as much propriety claim a right to commit murder with an instrument because he held a patent for it as a new and useful invention. But the plffs. say they have in progress lotteries founded on their patent, and in part on three acts of the General Assembly. One of these declares that the managers or a majority of them before entering upon the duties required shall give bonds for the faithful discharge of the trust reposed in them; and further, that those only shall be managers who shall give bonds. One of said acts required that the managers before they proceeded BUDD ET AL. VS. BUSTI & VAXDEKEMP. 69 to draw the lottery should certify to the Governor the time and place of drawing, and that previously to selling any tickets they should give bond for the due and faithful performance of their duty in the sales of the tickets, drawing the lottery,, paying the prizes, and managing all the business of said lottery; and of this lottery Yates & M'lntyre state that they were appointed the managers. And the other act required that the managers, before entering upon the duties required, should give bond for the faithful discharge of the trust re- posed in ihem. The plffs. in their bill state that they, Yates & Mlntire, entered into certain contracts with the Managers, Vestry and Wardens and Trustees before mentioned, by which they engaged to pay certain sums of money authorized by the legislature of the State, to be raised for them by way of lottery, and that they gave bonds for the due performance of their said contracts; but not one word is said in the bill of any bonds having been given to secure the payment of prizes, or refunding sums paid for tickets in case the lotteries should not be drawn, and which bonds by the said acts of assembly were required to be given before the said lotteries could be drawn or tickets could be sold under them*. The plffs. therefore ha- ving failed to shew any interest or right in them to draw these lot- teries they were not entitled to relief, and the decree of the Chan- cellor must be affirmed with costs. Taking all the facts stated in the bill to be true, the plffs. by not shewing a compliance with the conditions imposed by the acts of assembly granting these lottery privileges, on which the power to draw the lotteries was to be exer- cised, appear more justly deserving punishment by way of a crimi- nal prosecution, than protection from the extraordinary powers of a Court of Equity. Decree of Chancery affirmed with costs. WESLEY BUDD and others vs. PAUL BUSTI & JOHN J. VAN- DEKEMP. How far a vendor has a lien on the land for his purchase money, and against whom. Is the English law on this subject to be recognized here ? Quere. APPEAL from the Court of Chancer}', Newcastle County. The court consisted of Johns, Jr. Chancellor, (the appeal being from the decree of the late Chancellor) Clayton, Chief Justice, Harrington, Associate. Judges Black and Robinson did not sit. Frame, for applts. defts. below: Arthur Milby owned a tract of land in Sussex County and sold it in 1817, to Budd & Tuft; one- third to Budd and two-thirds to Tuft, for $26,000. Tuft conveyed his part to Budd soon after the deed from Milby. Shortly after this Budd executed a deed of bargain and sale of the premises to Jones. This deed is alledged to be fraudulent; but the fraud is de- nied in Milby's answer. After this Budd conveyed the same lands to complainants, Busti & Vandekemp, in trust for the Holland Land Company, to pay a prior debt or mortgage it as the defts. contend. A large part of the consideration money on the original sale of Mil- by to Budd & Tuft ($7835 47) still remains due and unpaid to Mil- 70 BCDD ET AL. VS. BUSTI & VAXDEKEMP. by. Milby has always continued in possession of the land, and after the sale from Budd to Busti & Vandekemp, he bought in the title of Jones with a knowledge of the fact that there was a deed (informal, not being acknowledged) from Budd to Busti & Vandekemp, but without any knowledge of the consideration of that deed. The question is whether Milby has a lien for his consideration money, and whether the Chancellor erred in deciding against this lien. The rule of Equity is that the vendor of lands has a lien for his purchase money or any balance thereof as against the vendee or his heirs and against purchasers from the vendee with notice. And I am free to admit that the purchaser bona fide without notice does not take land subject to this equitable lien. 2 Mad. Ch. 129, Sugd. 386, ch. 12, 733, ch. 13, s. 5, 10; 4 Brown, 420; 3 Eq. Ca. Ab. 682, n.; 2 Vez. sen. 622; 3 Bos. & Pull. 183; 15 Vez. jr. 329, 37, &c. I apply the cases 1st. as if Busti & Vandekemp had no notice and here I take this distinction, which is well settled, that this principle that the party is a bona fide purchaser without notice is strictly a defence to be set up in resistance of a claims against him, but not a ground for relief against another. It is a shield and not a sword- a safeguard against attack, but not a means of assailing others. Mitfd. PL 215; 1 Mad. ch. 207; 2 do. 322-3-4; 16 Vez. 252; 1 Atk. 603; 1 Fern. 246; 4 Russcl 515; 2 Simon & Stewart 472. If this distinction exists, it settles the case. Busti & Vandekemp are the complainants below asking relief against Milby. This de- fence can only be taken by plea and a plea most specially guarded. It must aver entire want of notice, positively and not evasively must aver the want of notice, up to the execution of the deed and payment of the purchase money it must always aver that the vendor was in possession of the land, or it will not avail: And the plea must be verified by oath. All this shews that it is a defence very specially restricted: to be used only in a particular form. The want of notice is a negative and cant be proved: it must therefore be sworn to. Suppose it set forth in a bill for relief : it makes a case without evidence. On general principles this is merely a defence : it is a countervailing Equity to prevent the operation of another Equity. It may prevent the court from enforcing an Equity, but it cannot procure the action of the court to destroy that equity. To entitle to relief, complainants equity must be stronger than the respondents. The principle is not uncommon in Equity where the condition of the party as complainant or deft, will affect his right to relief: a man may have a good defence which is not the ground of suit. Though a purchaser for valuable consideration without notice shall not be prejudiced he shall not be assisted. 2 Fonb. 147 n.; 1 do. 321, 50; 9 Vez. 33; 3 Atlc. 517; 2 Merivale 427: 2 Fonb. 147, n.; Sugd. 557; Ambler 292; 3 Vez. jr. 225; 18 Johns P. 544, &c. 564- 5-6-7-9. There is nothing in the case that can affect this question. It exists independently of anv other ground of action. Complain- ants may be in court properly, on the ground of fraud in Jones' deed, and may be entitled to a docree for the land : but they cannot get it discharged of this equitable lien. The relief sought against this Equitv is entirely distinct from the relief against Jones' deed, as where the bill is to redeem a mortgage, the court will not afford relief if the mortgagor owes other sums to the mortgagee but upon BUDD ET AL. VS. BUSTI & VANDEKEMP. 71 payment of these. In relation to this deed of Jones the court will not scrutinize the manner of obtaining a legal advantage to protect an undoubted equity. Courts have gone a great way in recognizing such titles. Francis Max. 72; 2 Vez., sen. 573; 2 Vern. 158-9. There is no proof here to taint Milby with fraud in procuring this deed. Second. We deny that Busti and Vandekemp were purchasers without notice. There is not one word in the bill denying notice; nor is it averred that Budd was in possession. It is distinctly aver- red in Milby's answer, that he was never out of possession of these lands, and there is no evidence to controvert this. This is construc- tive notice; sufficient to put the buyer upon inquiry into the title, and especially in this country, where the land always passes with the title. What is sufficient to put a man on inquiry is good notice ; and there is no difference between actual and constructive notice. No- tice that the title deeds are in another's possession is notice of his lien; much more is the possession of the land itself notice of a lien. Notice of possession by a tenant is notice of the lease. Possession is sufficient to put the party on inquiry, and what is sufficient for this purpose is notice. Sugd. 532, 533, 542; 13 Vez.; 2 Vez. jr. 441; 1 Atk. 567; 9 Vez. 32; 3 do. 226. Our positions then are 1st. That the matter of want of notice is only a defence. 2nd. If it could avail them as complainants, they must present all the requisites of which possession of their vendor is one. 3rd. That actual, or what is the same, constructive notice is proved. Mr. Bayard, on the same side, cited for future reference Sugd. Vendors, 399; Paige R. 128; A.mb. 724; 7 Wheat. 46. Mr. Rogers, for respdt's. compts. Sugden is not supported by the cases cited ; neither is Paige. ISTor is he supported by Ambler, nor Brown. 7th Wheaton settles that whole matter and overrules Sugden and his authorities. Second. I submit that this question of equitable lien is now started for the first time in this state, and that it is now within the province of this court to settle to what extent it is conformable to the state of things here, and how far it ought to be adopted. It is a branch of equity law to be adopted, and not merely recognized. Is it consis- tent with our alienation and lien laws ? Our custom is to sell land on credit, and take bonds or mortgages. It is not settled in England what kind of security taken, will waive the equitable lien; and it would be monstrous to say that the securities usually taken here still left the land subject to the lien in the hands of the purchaser. The whole law of mortgages is different here from that in England. The laws alienating lands for debt are different; in England land can only be affected by elegit Adopting the principles of equitable liens here would greatly trammel the alienation of lands. The establish- ing the doctrine in England has been the subject of regret: and I trust the courts here will not adopt it. Assuming that we are pur- chasers without notice, can we avail ourselves of it. The case has been argued as if we were using this principle as a sword and not as a shield 'How are the facts ? Our bill goes upon no such ground. We come into court with a deed from Budd's wife ; with the legal title ; not 72 BUDD ET AL. VS. BUSTI & VANDEKEMP. as a mortgagee, but as the legal owner of the fee simple, seeking relief against a fraudulent deed from Budd and wife to Jones, and an aliena- tion from Jones and wife to Milby. This brought us into Chancery. We could not resist this deed at law, fraudulent as it is, and we had to resort to Chancery. So far from going into court to be relieved against Milby's equitable lien for purchase money the circumstances negative any knowledge on our part that such a lien existed or was pretended. The case therefore, in 18 Johnson and the other autho- rities are beside the question. That was the case of a purchaser with- out notice going into court solely to avoid the equitable lien. A good deal of refinement has been elaborated about the form of this defence and the mode of setting it up. But it is to be remembered that this is not what brought us into court. It is a matter coming up collate- rally, and not any part of the relief sought; the lien is set up on the other side, and to this we are entitled to reply the want of notice, to avoid it. We act here as defts. and not as complainants. Where the claim is against a purchaser I admit he is to set up this defence by way of plea with the requisites contended for on the other side. Their argument on this subject rests on the assumed fact that Milby has been in possession, which we deny. From the date of Milby's deed the land was in possession of tenants, who became the tenants of Budd and Tuft. The attornment is the act of the law. Mr. Hazzard says in his deposition, that he understood Budd took the rents of one of the farms. It is alleged that Milby has an equity which the court will protect; and, as we come into court asking its aid in relation to another matter, they will enforce that equally against us. I admit that in some cases, the court will do it, but not in such a case as this. The rule is only applicable to mere equities. We don't stand here on a mere equitable title; we have a legal title, and an equity that entitles us to inquire into a transaction affecting our legal title. The equity in favor of a purchaser without notice is pe- culiarly strong. He is more favoured than the holder of dormant liens. JVnd. 321, 50; Sugd. 722-3-4; 1 Mad. Oh. 526. We deny that Milby has any equitable lien. It was divested by his sale to complainants. The rule is that an alienation removes the lien un- less the notice appears affirmatively. Notice must be brought home to the alienee. Where is the evidence? One of the cases cited is that a knowledge of the lien by an agent, is constructive notice to the principal ; the other cases amount to this, that a knowledge of a fact which necessarily leads to a knowledge of the lien is notice. They say Milby was in possession ; but the testimony contradicts this, and his answer is not evidence. The- question in the cause comes down to this, whether we are purchasers with notice of the lien, and whether that notice has been proved to the satisfaction of the court. 3 Russel 488; 2 Vern. 636: 1 T. R. 763; Co. L. 2906, 513; 4 Wheat. 292, n.; 3 do. 449, 50; 1 Peters 241; 1 Vern. 445. Mr. Bauard, for appellants, in reply. We can't agree that the case comes down to the single question stated in the conclusion of Mr. Rogers' remarks. First. The lien of the von dor for his purchase money is general; the case of a purchaser without notice is an exception. Even here it exists, but there is a counter equity that prevents its operation. BUDD ET AL. VS. BUSTI & VANDEKEMP. 73 The vendee is a trustee to the vendor as to unpaid purchase money. Examines 4 Wheat., and doubts it. The judges of the Supreme Court are constitutional lawyers. Their authority is high and unequalled in constitutional questions; but coming from different states where the common law has been adopted in greater or less ex- tent, and more or less modified, they are not of such authority as the English decisions. The case itself shows looseness; omits notices of the cases cited in Ami).,, cites 1 Br. Ch. Rep. incorrectly. The doctrine of equitable liens is founded on the doctrine of trusts. The court must always look to the conscience of the matter. The rules on the subject are well established in England, and under the consti- tutional provision this court will conform itself to these rules. It may be that this question of equitable lien is new; but the doctrines of trust are fully adopted, and this is a branch of them. A vendor sells his land and gives a deed with a receipt on it without receiving the purchase money; the vendee is his trustee until it is paid. And it is the very case for Chancery. Without its aid to affect the con- science of the vendee, he might hold the land without payment of the purchase money. There can be no doubt that as between ven- dor and vendee the Court of Chancery must enforce this lien; and, if }'ou once establish the lien, it must affect all subsequent purchasers with notice. It is so with all trusts affecting third persons with notice. Implied notice, on all the principles of equity, is as avail- able as express notice ; and whatever is sufficient to put a man on his guard in relation to a lien, is sufficient to charge him with implied notice. Without the adoption of this rule the court cannot prevent fraud, and execute the rights of vendors against fraudulent vendees. The English rule is that all persons are affected by this lien except purchasers for valuable consideration without notice, and mortgagees who have loaned money on the faith of the land. Perhaps it ought to be extended here to judgment creditors who have loaned money on the faith of the land ; but not to general creditors obtaining judg- ment. Purchase for valuable consideration without notice, is a posi- tive bar to the lien. It must be pleaded with certain formalities, some of which grow out of his position; his oath, to disprove actual notice ; and the averment that his vendor was in possession, to nega- tive constructive notice. These are necessary to establish his inno- cence, and entitle him to protection. Without now inquiring whe- ther this defence can be set up by a complainant, we may assume that as such he is not released from any of the obligations that would be incumbent on him in making defence as a deft. The complain- ants here have complied with none of these requisites: not even aver- red that Budd was in possession. They might have amended their bill, or replied specially to the answer. These omissions would be fatal to them as defts. But they are not purchasers for valuable consideration. They are either trustees to Budd and stand in the same condition with him, or they are his mortgagees. The form of a mortgage is not material if it be substantially one. As a mortgage the deed is void by our law, it not being recorded ; and if they are assignees to pav debts, they are mere voluntary purchasers, and bound by the lien without notice. 74 BUDD ET AL. VS. BUSTI & VANDEKEMP. But as to the notice. Milby swears he was never out of possession, and we take the principle to be that it is notice of a lien to a purcha- ser if his vendor is not in possession, for possession is prima facie evidence of title, and the want of it is sufficient to put the party on inquiry as to the title. The depositions of the tenants show that they rented of Milby and paid him the rents ; they do not even know the other parties. Milby distrained for rent; built houses; was as- sessed with the property and paid the taxes. The whole, case P-. ^ the decree show that Milby was in possession; and he is directed by the decree to account for the rents and profits. Complainants come into court for a legal title, not with one; they cannot recover at law until they avoid Jones' deed. They pray therefore, to be relieved against this deed, which Milby resists on the ground that he purchased from Jones for a valuable consideration, and, having a prior equity, (his lien) they are not entitled to relief against him without satisfying this equity. 1 T. R. 763. Milby swears that Jones told him he gave a valuable consideration for this deed, admit- ting at the same time, that he knew there was a subsequent deed from Budd to Busti and Vandekemp, but which he knew was not recorded. He therefore bought in Jones' title to protect his previous equity. He gave a valuable consideration for this purchase. Solemnly denies that he knew there was no consideration for the deed from Budd to Jones. As to the policy of recognizing these liens in this country. The objection of secret liens does not apply. This is not a secret lien. As between vendor and vendee the lien can be no secret, for he must know whether the purchase money is paid: and complainants stand charged here with notice of the lien. As purchasers with no- tice they have no equity as against Milby. Curia advisare vult. At the June Term, 1833, a majority of the court reversed the de- cree of the Chancellor, so far as to declare that Milby was entitled to receive the balance of the consideration money still due on the sale of the land. The court did not deliver any opinion at length, but it was understood that the question of equitable lien was not fully decided. Ch. Jos. Clayton went on the ground, that the deed from Jones to Milby was not proved to his satisfaction to be fraudulent. Harrington J .went more on the ground of the equitable lien, Milby having never been out of possession. He thought it a strong case of negligence on the part of complainants the subsequent purchasers of this land : there being other circumstances in the case, besides the possession of Milby, that ought to have put them on their guard as to title. The Chancellor and Chief Justice were both disinclined to adopt this doctrine of liens : but Harrinaton thought the court bound to recognize it. It has been the established doctrine of the courts of equity in England ever since the adoption of our constitu- tion, and our courts of equity are organized on the same principles with theirs: it results too from the general doctrine of trusts, which is fullv established in our courts. It mav be that these liens are im- politic in this country: but he thought the legislature should change the law if it was thought newssarv to adopt a different rule. The Chancellor was for affirming the decree. SUPERIOR COURT, FALL SESSIONS, 1832. ANTHONY SPENCEK, free negro, vs. JACOB D. DUTTOX, Ad- ministrator, &c. [f a plea in abatement conclude in bar, the plff. may treat it as a plea in bar, and the judgment will be final. PLEA in abatement. Demurrer and joinder. The declaration was in trespass quare clausum fregit against Jo- seph Button. His death was suggested and Jacob Button, his ad- ministrator, admitted a party deft. Plea in abatement and general demurrer. Mr. Frame for plff. The act of assembly, (Dig. 224,) saves the abatement of the suit. All personal actions except assault and bat- tery, -&c., survive. The conclusion of this plea in abatement is a prayer of general judgment; consequently, if the action don't abate the judgment on that plea must be general, quod recuperet and not of respondeat ouster. Tf a plea in abatement conclude in bar, it is a plea in bar, and the judgment shall be general. 1 Ch. P. 446; 1 Sell Pr. 274. Mr. Layton, contra. This is not a general plea in abatement, but of matter arising since the last continuance. If the cause of ac- tion survive, the judgment can only be one of respondeat ouster. !For injuries to real property the action don't survive. 1 Ch. PI. 83. By the Court. The rule is that if a plea in abatement conclude in bar, the other side may treat it as a plea in bar; and, if he do so, the judgment will be final, quod recuperet. Gould's PI. 299. In ihis case the demurrer concludes with a prayer of judgment respon- deat ouster, thus treating it as a plea in abatement only: the- judg- ment therefore, in this case, will be that the defendant answer over. There is no doubt about the surviving of the action under our act of assembly. Judgment, quod respondeat ouster. Frame for plff. Layton for deft. 76 PRICHAED'S ADM'R. vs. CULVER. WILLIAM ELLIS Adm'r. of KACHEL PRICHAKD vs. MOSES CULVER. Replevin will not lie by the part owner of a chattel for his undivided share. If the narr contains a sufficient cause of action with matter not actionable, it will be intended after verdict that damages were given only for the action- able part; and this though there be but one count. REPLEVIN. Narr. Pleas, non cepit and property. Replication and issues. The declaration contained but one count, which was for taking sundry goods of plff., to wit: beds and furniture; table; chest; hogs; sheep; cow; colt and one-third of four and a half stacks of fodder. The plff. had a verdict for $91 50, the value of the property claimed; whereupon, Frame moved in arrest of judgment. Frame for deft. This is an action of replevin. The plea is non cepit. The property claimed is (inter alia,) one-third of four and a half stacks of fodder. Replevin will not lie for the part of an un- divided chattel. This action is for the talcing a chattel ; for a wrong to the possession. It goes for a restoration of the chattel in specie ; to recover the lost possession. It follows from the nature of the remedy that it cannot lie for an undivided part of a chattel, for specific possession cannot be had of such a share ; nor can any delivery of it be made. The sheriff is commanded to deliver possession of the thing; he cannot divide it, for his functions are ministerial merely, and not judicial ; neither can he deliver the whole, for that would be a wrong to another. No judgment therefore can be rendered on this verdict. Layton for plff. The deft, should have demurred if this objection be good. But it is not good. He has pleaded property, as well as non cepit. By this plea the parties agree what property is intended. We do not go for a return, but for damages on account of the taking and detention. Detinue is the only action .wherein the specific chattel can be recovered. 2 Saund; 1 CJiitty 162. After verdict judgment shall not be arrested for error in the form of action. 8 D. L. 48. Frame in reply. We do not object to the uncertainty of the de- scription of the property, but that the action is brought for a species of property that cannot be recovered in this form of action. Cur. adv. vult. (a) The Court at the April term following refused to arrest the judg- ment. Judgment for plff. . Layton, for plff. Frame, for deft. (a) in actions ex delicto, if a party who ought to be joined, be omitted, the objection can only be taken by plea in abatement, or by apportionment of damages at the trial ; and deft, cannot as in actions ex contractu give in evidence the non-joinder as a ground of nonsuit on the plea of the general issue, or demur, or move in arrest of judgment or support a writ of error, though the non-joinder appear on the face of the declaration. 1 Ch. PL 57. note 2. But in an action of replevin brought by one part owner of a chattel after verdict for plff., the judgment was arrested. Cites Hart vs. Fitzgerald. 2 Mass. Rep. 589. Replevin 2 counts. 1. for A's undivided right in 450 spruce logs. 2nd. for the undivided half of 450 spruce legs. Deft, avows the taking JONES vs. WOOTTEN. 77 NEGRO BEN. JONES vs. EDWARD WOOTTEN. The issue of manumitted slaves born after the manumission but before the period of its taking full effect were slaves for life before the act of 1810. That act not to have a retroactive effect, though declaratory in its terms. It is not competent to the Legislature to declare what the law has been, or is ; that belongs to the courts. Statutes are to be construed consistently with the fundamental principles of justice; and the court will not give an interpretation which takes away vested rights if the act is susceptible of any other; nor will the court infer an intention of making an act retrospective. The issue follows the condition of the mother. PETITION" for freedom. The mother of the petitioner was a slave, and by the will of her master, dated 12 May 1797, was manumitted in these words: "I give to my daughter Betsy my negro girl Rhoda until she arrives at the age of 30 years, then to have her freedom from slavery/' The peitioner was born in 1805, before the mother attained the age of 30 years. Mr. Thos. Robinson, for petitioner, cited the act of 1810. Dig. 409. Bayard, for respondent. The common law of the State recog- nizes slavery: it is a condition existing among us previous to any statutory provisions. The presumption is that negroes are slaves, and until the act of 1797, the law recognized no means of emanci- and that the logs were the property of A., B. and C. as tenants in com- mon, and that he had attached B's right or ^. Verd. for plff. Judgment ar- rested. Parsons Ch. Jus. In contracts where one sues where the contract was with two, the deft, may take advantage of it on the general issue with- out pleading it; a fortiori if it appears from the plff's own shewing. In tort for injury to a chattel where there are several joint owners and one sues it cannot be taken advantage of on the general issue, but must be pleaded in abatement even if it appears on the plff's own shewing, for defts. may waive it. 6 Term. R. 766. Here the writ claims an undivided moiety. In trespass or case damages are given. In replevin the chattel is to be de- livered as well as damages recovered. This chattel is not capable of sev- erance and the whole or none must be delivered. If the whole, he gets a part in which he claims no property. There is no case where a part owner has brought replevin for his undivided part only. There is a strong distinction between trespass where damages are sought, and re- plevin where possession is claimed. Judgment arrested. 9 Mass. R. 427. Gardner vs. Dutch. Replevin for 76 bags of coffee shipped and stored with other bags, none being marked or numbered. A receipt had been given for 76 bags, weighing 8991 Ibs. They were not marked or separated from the other bags. Verdict for plff. Per Cur. If the plff. was tenant in common with W. and R, he could not maintain replevin for his undivided share. But he was not a tenant in common. He might have had the number of bags and quantity of coffee though the bags were not marked. It appears therefore that replevin will not lie by the part owner of an un- divided chattel ; and, although not pleaded in abatement, advantage mny be taken of it on motion in arrest of judgment, where the defect appears on record. Sed quere if a count in a narr contains a sufficient cause of action connected with matter not actionable if it will not be intended, 78 JONES vs. WOOTTEN. pating them from slavery. The mother of this boy was a slave. Her offspring follows that condition. She was a slave at his birth and continued so until she attained 30 years, when by the operation of the will she became free. What was she in the mean time ? Her natural condition % was slavery; this condition was altered only by the will and not by that until a certain time. In the mean time she was a slave and her issues slaves. The right to the issue is the same with the right to the labor of the slave. Upon what principle therefore will a manumission to take effect at a future day, destroy the right to the issue in the mean time, any more than to the services of the mother in the mean time. Does the act of 1810 vary this. It is said to be declaratory. No legislature has, in this country, a right to pass a declaratory law. It may be in England, but under our written con- stitutions it must be different. We have distinct branches Legisla- tive, Judicial and Executive. The legislature may pass laws but after verdict, that the damages were given only for the part that is ac- tionable and the judgment will not be arrested. Gould. 195. A declaration, though only of a single count, may be good as to part and ill for the residue; and, if the whole be demurred to, the pin*, may have judgment for the part good. In slander where any of the words are actionable judgment will not be arrested though the other words are not. It will be intended that the damages were given for the actionable words. Cro.'-Eliz. 328, 788; Arclib. PI. 196; 1 Chitty PI. 384; 2 Sound. 171. a. After verdict the court will intend that damages were only given for the actionable part of the decla- ration. This was an action for cutting a canal through the plfFs. land and overflowing the same by leaks, &c. and stopping water courses. The cutting was authorized by law. General damages were given and the verdict was sustained. There was only one count in the narr. 2 Johns. E. 283, Steele vs. Western Lock Navigation Comp. With respect to actions of tort such as trespass quare clausum, or for taking goods, trover, case for malfeasance, or misfeasance arid such like actions of tort, it seems fully and clearly established that if one only of two or more joint-tenants, parceners, tenants in common, partners, executors, assignors of bankrupt and others who regularly ought to join, bring any such actions, the deft, must plead the omission in abatement and cannot give it in evidence on the general issue, or in any other way, or by pleading in bar or in arrest of judgment or though the matter be found specially or appear on the face of the declaration or any other pleading of the plff. 1 Saund. R. 42G [219, b. 291. a. n. 4.] 6 T. R. 766, Addison vs. Overends. If divers considerations be mentioned in one assumpsit and one is void and the others good, and damages given ratione premissorum, it shall be intended damages were given only for those that are good. 1 Ld. R. 146, 239. In a single count with two allegations of damage, one actionable and the other not, the court will intend that damages were given for the ac- tionable part. 2 Johns. 286-7. Courts of justice will not encourage a man to lay by and take advan- tage of the mistakes of his adversary after verdict, when the same result would have taken place at an earlier stage. 2 Johns. 571; Cro.Jac. 664; 2 Strange 1094; 1 Salk. 129, 364; 1 Days Cases in error 30. JONES vs. WOOTTEN. 79 can't expound them; that belongs to the judiciary. If they don't like the construction, legislatures may change it futurely; but not retrospectively. This boy was born before 1810, and it was not for the legislature of that year to say what was the law affecting his condition. Nor has their declaration weight as authority. Our legis- latures are not competent to expound laws. Rodney, for petitioner: The mother of petitioner was a manumitted slave. He was born after the manumission but before the time when the mother was in fact free. By the manumission an inchoate or reversionary right of freedom attached to the condition of the mother; her condition was changed and she became free, subject only to the masters temporary and limited right to her services. Her issue is favorably affected by this change in her condition they are free. The act of 1810 makes them slaves for a limited time beyond which time the petitioner has advanced. Cur. adv. vult. April term 1833. THE COURT, Harrington, J. dissenting, dis- missed the petition. BLACK, J. George Vincent by his last will, dated May 12th, 1 797, bequeathed as follows : " I give to my daughter Betsy my negro girl Ehoda, until she arrives to the age of thirty years, then to have her freedom from slavery." The petitioner Benjamin (now of the age of twenty-seven years,) is a son of Ehoda and was born in 1805, after the death of George Vincent and before his mother attained the age of thirty years, and claims to be free under the act of 1810. Whether the 2nd section of the act of 1810 should be construed as embracing children who were living when that law was passed and had been born of female slaves manumitted to be free at a fu- ture day, or whether it was the design of the legislature, that that sec- tion should be applied to such children, are points not free from difficulty. Tn construing statutes the following rules may be consid- ered as well established by judicial decisions, fully entitled to respect. If a court can give a construction to a statute, consistent with the fundamental principles of justice and reason, it is their duty to do so. 1 Bay's Rep. 93. A court is not to presume that the legislature designed to take away a vested right, nor ought their act to be so construed. 4 Burr. 2460 ; 6 Johns. R. 101 ; 1 Bay's Rep. 199. They ought not to give to a law a retrospective operation or action if it be susceptible of any other, unless it be plainly so provided iH the act. 7 Johns. 497, 503. Is it a question free from doubt that the legislature of 1810, de- signed that the 2nd section should apply to children then in exis- tence of such manumitted female slaves, or cannot the act be con- strued consistently with its provisions, without giving it such a re- trospective operation, and if it can, should it not be so construed ? The first section provides that if by any deed of manumission or last will any slave hath been or thereafter shall be declared to be free after serving a limited time, he or she shall in the monntime. until the term for which he or she shall be held to service (has ox- S'j JONES vs. WOOTTEN. pired,) be deemed to be a slave. This was designed to remove the doubts that were or might be entertained as to the character or con- dition of those who had been or should be thus manumitted. It did not alter or change the deed of manumission or its terms, or the rights either of the master or the slave, or any law existing in rela- tion to negroes so circumstanced: but enacted as the law, neither more nor less than what the deed of manumission itself declared, that they were not free until the term had expired, and till then re- mained slaves, whether the writing by which their freedom was secu- red, was executed before or after that act passed. This section intro- duced no new rule, but recognized what must before its passage have been considered as the law, and which- the deed or will plainly pointed out, viz : that on a certain future day they should be free ; of course, till that day arrived they were not free; their condition was not changed, but remained as it had been, that of slavery. The second section provides that the children of any such female negro born within the said term of service, shall be in like manner deemed and taken to be slaves; the males, until they arrive to the age of twenty-five, and the females to twenty-one. We may with- out straining the language of this section, construe it to embrace children born before its passage. It does not plainly and unequi- vocally exclude, nor does it plainly and unequivocally include chil- dren previously born. It does not say as well those heretofore, as those hereafter born. This would have been unequivocal language; but merely those born within the said term of service. Now if we construe those words to mean those born within the term of service to whom such a provision could according to the fundamental prin- ciples of legislation apply, that is, to those born after the passage of the law within the term of service, we give it a construction that makes the act consistent with the principles of reason and justice, and such a one as the legislature had the power constitutionally to pass ; a prospective and not a retrospective act ; an act which respects, not one that violates vested rights or the rights of property. It is not expressly provided that this act shall be retrospective It is susceptible of being construed merely as a prospective act without doing violence to its terms or language. 'Are we not then, according to the rules for construing statutes to which I have referred, bound to give it such a construction, and thus relieve the legislature from the imputation of transcending their legitimate powers ? Do not the provisions of the 7th section afford some evidence that it was not designed to embrace children then born, within the act? That section requires a register of the name, age and sex, to be made within twelve months after its birth, of every child of such manu- mitted female, born after the passage of that act. What was the ob- ject of this provision, but to secure to those for whose benefit the act was passed, a record of their ages, that they might have this record evidence of. their right to freedom when thev attained the age fixed by the law. Now if it was intended to give children then born, freedom at twenty-five or twenty one, why were not their names also directed to be registered, that record evidence of their time of freedom might also be secured to them. There however, is no such provision for them, and yet there existed the same reason for the re- JOXES VS. WOOTTEX. 81 gister in the one case as in the other. May we not then from a con- sideration of the whole act reasonably infer, that the issue of such slaves then born were not designed to be embraced within it, and is not this construction warranted by the rules established for the construction of statutes, and at the same time the most respectful to the legislature, as it makes their act a valid act when an opposite construction would compel us to hold it to be an invalid one ? Supposing, however, that this view cannot be sustained, and that the act of 1810, embraced the issue of such females then born, as well as those thereafter to be born, the validity and bearing of such an act on children then born, and on the rights of the owners of such children must be considered. If that act is to be considered as an act declaratory of what the law was before its passage, it cannot as such have any weight with the court. Each department of our government must operate and be confined within its constitutional limits. The power that makes, is not the power to construe a law. The legislature may declare what the law shall be, but not what it is or has been. That power be- longs to the judicial department alone, and they in discharging their duty are to form their own opinion and are not to be the mere organ of the legislature and declare its opinion of what the law is or has been. This proposition is one so clear that the Supreme Court of the II. States, in the case of Ogden vs. Blacklidge, 2 C ranch 977, declined hearing an argument in its support, and stopped the counsel who was about to sustain it. If it cannot then avail as a declaratory, but is to be considered as a positive and enacting law, adopting a new rule as to property, can it according to the nature of society and of government and of those general principles which are common to our free institutions (inde- pendent of constitutional provisions,) operate upon and alter rights of property which by the laws of the land were fixed and vested at and prior to its passage ? In relation to contracts or property is an act valid and obligatory which by a retrospective action is to change the contract, or divest or abridge the rights of property ? Ts it competent for a legislature to enact that a title to property, which at the time the property was acquired was absolute and un- qualified under the existing laws, shall thenceforth be a qualified or limited title and not an absolute one ? Such positions would seem to be in direct hostility to the sound and established principles of justice and reason, and entirely incon- sistent with the spirit of a free and republican government. If they are to prevail they would leave the rights of property unsecured by fixed principles or a firm tenure; and at the will, pleasure or caprice of each succeeding legislature. A retrospective act, so far as it chan- ges or divests the vested rights of property, and takes away that property or declares the title to it, or tenure of it, to be less valid than by the enacting law it antecedently was, violates fundamental principles, and cannot be considered a valid or binding one. 1 Kent 448, 454; 7 Johns. 477; 1 Bays Rep. 98, 252; 2 Bay's Eep. 5 2 Dallas 310. By the constitution of our state the rijrht to acquire and protect property is declared to be a right essential to and inherent in every 82 JONES rs. WOOTTEX. man. This right cannot be fettered, restrained or abridged, except so far as authority so to do has been granted in the same instrument; unless the power be there found it does not exist. The only provi- sion which we there find for -taking the property of an individual from him is in the 8th section of the 1st article, and in these words: " nor shall any man's property be taken or applied to public use without the consent of his representatives, and without compensa- tion being made." The legislature cannot take from an individual his property even for public use, without making him compensation. To take property from one and grant it to another, even if com- pensation be made, or to take it for the public use, without compen- sation, is a power expressly denied to our legislature, and every such act is directly in violation of that constitution and of course void. In this state slaves are the subjects of property. If the legislature can constitutionally enact that a person who by the existing laws has a perfect title to the time and services of a slave for his life shall only hold that slave and have the benefit of his services till the slave attains twenty-five, why may they not also enact a law that lands which are held by a man under a devise to him and his heirs for- ever shall only be enjoyed by the devisee tfntil he attains twenty-five, and that all his right therein should then cease ? Where would be the difference in principle ? If they can abridge or alter the existing ten- ure or title of the one species of property, why can they not alter the other. The land and the slave are equally property, and why are the rights of the one species of property to be held less sacred and inviolable than those of the other. The constitution guarantees protection to property of every kind without any exception: estab- lish the position that it is property that is to be touched, and you find the power of the legislature is limited by broad constitutional lines beyond which it cannot pass. As long as this unfortunate class of beings are recognized by our laws as the subject of property, the general rules of property, and of the rights to property must attach, and protection be extended according to the settled princi- ples of law. If therefore the petitioner was, before the act of 1810, a slave for life, that slavery cannot be reduced to the term of twenty-five years by that act, the master had a property in him beyond these twenty- five years, which could not be taken even for public use without his being compensated no such compensation is provided by the act, and it is therefore unnecessary to examine whether such a taking would be for public use or private benefit. Whether a law predicated on principles of public policy and safety designed to attain an important and general public good, by relieving the community from a great and acknowledged evil, operating alike upon all this class of property, and all the holders of this class of property, might not be passed by our legislature, consistently with those principles which shold regulate the exorcise of their powers, by which slavery should be altogether abolished, is not a question now before us and it will be time enough to pass on such a case when it is presented. I mav however remark that in the state of Pennsyl- vania where for more than fifty years, the attention of their legislature JONES vs. WOOTTEN. 83 has been directed to the abolition of slavery; they have not in any in- stance, according to my research, passed a law giving or securing freedom to a slave in being when the law passed. Their legisla- tion has been prospective and not retrospective. The rights of pro- perty in slaves have invariably been respected, and the law bv its terms made to bear upon and secure freedom to those only who should be born after its passage. The provision of the constitution of that state in relation to the security of property, is, with the ex- ception of a single word, the same with that in ours. With us com- pensation is to be made with them it is just compensation. The act of 1810, therefore, whether it be considered as a decla- ratory act, or an act establishing a new rule of law, cannot govern this case. This petitioner was born in 1805. The rights of the master existed and were fixed five years before this act passed. What those rights were, must be ascertained from the then existing law and must prevail. If he then held the petitioner as a slave for life, the act of 1810 cannot reduce his title to a slavery for twenty-five years. The present case must be decided as though that statute had never been passed. In 1805 there existed no provision in our statutes regulating or declaring the condition or character of the issue of female slaves who were manumitted to be free at a future day. The condition of the mother at the birth of the petitioner must regulate his condition. The rule Partus sequitur rentrem must prevail if she was free then he was free if she was then a slave, he also was a slave, for there was no intermediate grade of servitude prescribed by the lair. which could apply to his case, nor was any limited or qualified pe- riod of service secured to him by the will of Mr. Vincent. That will guaranteed to the mother a certain right, but none to her issue. When Rhoda attained the age of thirty she was to have " free- dom from slavery " not before till that period arrived she was not to be free from slavery, nor from her legal condition as a slave, but all the disabilities and incidents of slavery remained with and were attached to her : till she attained thirty there was to be no change if that period arrived, then, and not till then, her character and con- dition of a slave ceased her condition was not one of modified ser- vitude, but by the express terms of the act that of a slave. By the will of Mr. V. a right was secured to her that when she reached the age of thirty she should be free, but if she had died before that age no change in her condition would have taken place, but she would have died a slave. Rhoda had not attained the age of thirty when the petitioner was born, but remained a slave. Tis true, that sla- very was to cease as to her at thirty; but this was, by the terms of the will. There was, 'as I have said, no such provision in the will in favor of her issue nor did there then exist any law removing from such issue the chains or incidents of slavery for life. Would it not be an arbitrary act for this court to say that the petitioner was entitled to his freedom at twenty-one twenty-five or thirty, or at any other period which they might think proper to assume, when in their judgment the act of 1810 does not apply to his case when no law existed at his birth which made such a provision, and when the will of Mr. Vincent does not secure it to him? Upon what 84 JONES vs. WOOTTEN. grounds other than the arbitrary discretion of the court could such a period of service be assumed, and such a decision be founded: a sound discretion based upon the law of the land I am willing to ex- ercise : but I cannot go further I will not legislate. The petitioner at the time of his birth, was, as the law then stood and by which his condition was fixed and is now to be governed, either unconditionally free or a slave for life .he was not born free for his mother was then a slave of course therefore he was born a slave, and that slavery was and is for life, as it is not limited to a shorter period by any valid law which applies to his case, or by the will of Mr. Vincent the master of the mother. It is therefore my opinion that the petition be dismissed, (a) CLAYTON, C. J., concurred in opinion that the petition should be dismissed; and it was so ordered. HARRINGTON, J. It was argued in this case that the condition of slavery was recognized by the common law of this State. That it conferred on the master an unlimited right to the services of the slave and subjected the issue to the same liability. A practice has grown up, recognized and authorized by law, of changing the con- dition of this species of property by manumission to be free at a future day: and an important question arises as to the condition of the offspring of female slaves thus manumitted, born between the act of manumission and the period of its taking full effect. By the act of manumission the mother acquires a vested right: the master has no longer an unlimited control over her services, and it would seem to follow, that he had no longer an unlimited control over the services of her offspring. The child follows the condition of the mother. At its birth the mother is not in the condition of absolute slavery, but only of limited slaver} r , owing services for a limited period; if the child be in the same condition it is that of limited slavery, measured by the term of its mother's servitude. This is the view I take of the question as it stood before the act of 1810. The principle is no doubt prejudicial to the master and imposes a great hardship on him of maintaining the infant children of his ma- numitted slaves; but it follows from the principles assumed, and is a consequence of his own act of manumission. The injustice of such a case as it regards the master was probably the origin of the act of 1810. That act neither recognizes the unlimited right of the master to the services of the issue of his manumitted slave, nor con- fines his right to the period of the mother's servitude, but assumes a reasonable medium based on the ground of the limited right of the master, and compensation to him for the expense of raising the slave. It makes the males slaves until 25 ; and the females until 21 years old. This act was passed on the recommendation of Governor Truitt; and it seems probable, from the terms he uses in bringing the subject to their notice, that the legislature proceeded rather on the ground of extending the time of service as a compensation to the master than on any idea of restricting any rights that he pos- (a) See the case of M'Cutchen et al. vs. Marshall, 8 Peters 221, de- cided by the Supreme court in January 1834, sustaining the last ground in the foregoing opinion. JONES vs. WOOTTEX. 85 messed. Gov. Truitt says (Journal H. R. 1810, vol. 3, p. 9J ' It has become a frequent practice for masters to execute deeds of manumission to their slaves by which they are permitted to go at liberty at a future period, and in the mean time their services are retained. So many negroes are now in this situation that it is a matter of great importance to ascertain what their condition is; for if it is slavery the issue of female parents are necessarily all slaves: on the contrary, if it is freedom, the issue at the moment of their birth are free and owe no service to the master. And is the master, 1 laving no right to command their services for a single moment, bound to maintain them in their infancy? the mother cannot; and must the public be burdened with the expense? The courts, fore- seeing the inconveniences which would, arise from a determination of this question in either way by them, have avoided, as far as I can learn, making any decision; but whenever it shall come directly be- i'ore them they will be bound to decide let the inconveniences flow- ng from that decision be what they may; and the legislature being The only proper authority competent to make the necessary provi- sions to meet the exigency of the case, I have' considered it my duty to recommend it to your notice." The report of the commit- tee of the House of Representatives on this part of the message de- clares : 1st. That manumitted slaves are entitled to all the benefits of bound servants and not slaves; 2nd. That the issue shall be con- ddered as bound servants until the age of - , and not as slaves provided the master keeps and raises them. It is true that slavery is tolerated by our laws ; but it is going too far to say that this kind of property in slaves is precisely like every other species of property. The spirit of the age and the principles of liberty and personal rights as held in this country are equally op- posed to a doctrine drawn from the ages and the countries of despot- ism, and founded either proximately or remotely in oppression. Sir William Blackstone remarks that pure and proper slavery is con- trary to reason, and the principles of natural law ; and he shows con- clusively that the grounds on which slavery is placed by the civil law all rest on unsound foundations. 1 Black. Com. 450; 2 Kent C. 247. Accordingly it has long since been abolished in England; and in many, perhaps in most, of these United States it has either been done away or provision has been made for its prospective abolishment. In the state of Xew-York, an act of assembly declared all children born of slaves after the 4th July, 1799, should be born free, though liable to be held until 28 and 25 years of age; and a subsequent act' declared that all negroes, c., born before the 4th July, 1799, should be free after the 4th July, 1827, at which time slavery became extinct in that state. In Pennsylva- nia, by the act of 1780, masters were required to register their slaves and the issue of such slaves born after the acts were subjected to a servitude of onlv 28 years. Vide 1 Dal. R. 467. These provi- sions have been further extended in favor of liberty, so that there now remain in that state, as appears from a statement latelv made bv a committee of their legislature, less than one hundred slaves with a certaintv of the speedy extinction of slavery there. These acts (and similar ones exist in many other states, our own included) deny 86 LOLLEY rs. XEEDHAM'S EX'RS. to the master that unqualified ownership over his slave and her issue that he possesses over other property; and continuing unrepeaied if not uncontroverted, upheld by the undoubted sentiment of the times and the extended spirit of liberty, they establish a right in the go- vernment to regulate this species of property in conformity with the acknowledged principles of reason and justice as well as the require- ments of public policy. It was on this principle that our legislature in the act of 1810, declared that the children of manumitted slaves should not be considered slaves for life, and regulated the period of their slavery upon principles of justice as well to the master as the slave. On the best consideration I have been able to give the case, I re- gret that I have not been able to bring my judgment into coincidence with that of the other members of the Court. I thing the petitioner, being now 25 years of age, is entitled to his freedom. Petition dismissed. Robinson and Rodney, for petitioner. J. A. Bayard, for respondent. SARAH LOLLEY, negro vs. EZEKIEL XEEDHAM'S Ex'rs. A probate must disclose all the credits within the plff's. knowledge. It is not sufficient to make a general reference to the defendant's books for credits. CASE for work and labor, &c. Common counts. Pleas, non-as- sumpsit; payment, and act of limitations. Plff. proved the service, and admitted that she had at different times received sundry sums of money from deft's. testator; at one time $50 00 at another $10, at another $5, &c. She presented the following probate: Doct. Ez. Xeedham To Sarah Lolley, Dr. To 23 years and 4 months services from 1st October, 1803,* to 1st February, 1829, as house-keeper, at $3 per month. $840 00 The above named Sarah Lolley maketh oath that nothing has been paid or delivered toward satisfaction of her above stated debt, other than such payment as may have been made by the said Ezekiel Xeedham in his lifetime, for the amount whereof she refers to the books of the said deceased, not knowing the amount herself; and that the sum demanded, after deducting such payments, is justly and truly due. (Signed) Sarah Lolley. Sworn and subscribed before ) VVm. A. Budd, J. P. j Clayton for deft's. moved a nonsuit, for want of sufficient pro- bate. PER CUR. The probate is not sufficient. A probate is for the security of the estate, and the law requires that the person making it should disclose all credits within his knowledge. A general ref- erence to the deft's. books without this, might in many cases evade BISHOP vs. WILD'S Ami'it. 87 the check which the law designed to impose upon all claims made upon a deceased person's estate. The demand here is of $H40, with a general reference to the deft's books for credits, without specify- ing a single credit, though it is proved that the plff. has on other occasions, admitted the receipt of specific sums, as being within her n collection and knowledge. Judgment of nonsuit. Ridgely for plff. Clayton and Bates for defts. WILLIAM S. BISHOP vs. JOHX WILD'S Adm'r. The proviso (sec. 10,) in the act of limitations, which allows one year for re- commencing actions in which the judgments have been reversed, &c., applies to suits pending at the date of said law, and on the 1st Sept., when its re- pealing clause took effect. A law which enlarges the time for bringing suit beyond the time allowed by the law existing when the contract was made is not a law impairing the obligation of the contract. Quere. Would a law limiting the right to sue to a less time than was allowed by the law existing when the contract was made be unconstitutional, as impairing the obligation of the contract? In an action on a guardian bond', the plff. must show a sufficient breach in his replication or other pleading, or by suggestion on the record. SUMMONS debt on guardian bond, with the usual condition. Xarr assigning breaches. Plea, the several statutes of limitation. 1'eplication that suit was brought within three years after plff. came of age, and recovery and judgment had thereon ; that the High Court of Errors and Appeals reversed the judgment, and that this suit was I rought on the same bond within one year from the date of the re- versal. Deft, rejoins that plff. came of age on the 29th of August, 1824, and was twenty-four three years after, and that this suit was not brought until July 1831. Plff. surre joins that he brought suit on said bond to October Term 1827, on which there was judgment, and afterwards a reversal as aforesaid, and new suit within a year niter; and that the first suit was pending when the limitation act of 1829 was passed. General demurrer to this surrejoinder, and joinder in demurrer. Plff. came of age 29th August, 1824. The first suit was brought 8th August, 1827, and judgment for plff. in the Supreme Court, which judgment was reversed by the High Court of Errors and Ap- peals, at the June Term, 1831, (a) and the present suit brought with- in one year thereafter. Act of 1766, (1 vol. 424,) sec. 14, pro- fa) THOMAS WALLACE, Adm'r. of JOHN WILDS, d. b. appln't vs. WILLIAM S. BISHOP, Plff. b. respondent. HIGH Court of Errors and Appeals, June Term, 1831. Writ of Error to the Justices of the Supreme Court of the state of Dela- ware, in and for Kent county. CORAM Harrington, Ch. Jus. Supreme Court; Clayton, Ch. Jus. Com. Pleas; Cooper and Stout Justices. The Chancellor did not sit, he having been Chief Justice of the Supreme Court when the cause was tried below. This was an action on a guardian bond against Thomas Wallace, the administrator of John Wilds, who was one of the sureties of Lewis Wil- liams, in his guardianship of William S. Bishop. 88 BISHOP vs. WILDS' AD.M'U. vides that all actions on guardian bonds shall be commenced within FIX years after the passing of said bonds, saving the rights of per- Narr. The iiarr was filed generally, without setting forth the condition of the bond or assigning breaches. The deft, craved oyer, and pleaded perf ormance ; stat. limitations ; plene administravit and payment. Repli- cation to the plea of the statute; infancy and suit brought within three years after full age; rejoinder and issue. To the plea of plene adminis- travit, replication denying the plea and tendering issue; similiter and issue. The plea of payment was withdrawn. Plea. The case turned upon the first plea of performance, and the repli- cation thereto. The plea of performance, after noticing the prayer and grant of oyer sets forth the bond and condition. The bond was executed by Lewis Williams, John Wilds, Maskline Clarke and James Spear, to William S. Bishop, minor, in the sum of $3,000, with condition that if the said Lewis Williams should faithfully discharge his trust as guardian of the said Wm. S. Bishop, " and shall and do well and truly pay and de- liver, or cause to be paid and delivered unto the above named William S. Bishop, his heirs, executors, administrators, or assigns, all such sum or sums of money and other estate that shall come to his hands or possession as guardian of the said Wm. S. Bishop, deducting thereout such reason- able sum as the Register for the probate of wills and granting letters of administration for the county of Kent aforesaid should allow for the said guardian's care and trouble in managing the estate of the said Wm. S. Bishop," then the bond to be void. The plea then stated, in the words of the bond, that Lewis Williams did discharge the- trust in him reposed as guardian, and " did well and truly pay and deliver, or cause to be paid and delivered unto the above named Wm. S. Bishop, all sum and sums of money and other estate that did come to his hands or possession, as guar_- dian of the said Wm. S. Bishop, after deducting thereout, such reason- able sum as the Register for the probate of wills and granting letters of administration, for the county of Kent aforesaid, did allow for the said guardian's care and trouble in managing the estate of the said Wm. S. Bishop, according to the tenor and effect, true intent and meaning of the condition " of the bond aforesaid; and the plea concluded with a verifica- tion. Replication to this plea: precludi non, because he saith that the said Lewis Williams did not discharge his trust as guardian, &c., " and did not well and truly pay and deliver, or cause to be paid and delivered unto the said Wm. S. Bishop, all such sum and sums of money and other estate, that did come to the hands or possession of the said Lewis Wil- liams, as guardian of the said Win. S. Bishop, after deducting thereout such reasonable sum as the Register for the probate of wills and granting letters of administration, for the county of Kent aforesaid, did allow for the said guardian's care and trouble, in managing the estate of the said Wm. S. Bishop, according to the tenor and effect, true intent and mean- ing of the said writing obligatory, to wit, at &c. ; l)ut that the said Lewis Williams, the said guardian as aforesaid, from the said date of the said writing obligatory as aforesaid, and on divers other days and times, from the date of said writing obligatory, until the day of the date of suing out and exhibiting the writ aforesaid in this behalf, against the said Thomas Wallace, administrator as aforesaid, to wit, at, &c., by the said Wm. S. Bishop, had and received as guardian of the said Wm. S. Bishop, and for and on account of the said Wm. S. Bishop, divers sums of money and other estate, amounting in the whole, to a large sum of money, to wit, to BisHor vs. WILDS' ADM'R. 89 sons within the age of twenty-one years, &c., of bringing suit within three years, after coming of full age. $3,000, lawful money, &c. Yet the said Thomas Wallace, although often requested as administrator as aforesaid, so to do, hath not yet accounted for, or paid over, or delivered to the said Wm. S. Bishop, the said sum of $3,000, or any part thereof, but hath therein wholly failed and made de- fault; and the said sum of money so had and received by the said Lewis Williams, as aforesaid, is still wholly unpaid and unsatisfied to the said Wm. S. Bishop, contrary to the form and effect of the said condition of the said writing- obligatory, to wit, at, &c., and this he the said Wm. S. Bishop, prays may be inquired of by the country, &c." Demurrer. To this replication the deft, demurred, generally and spe- cially ; and assigned for cause of demurrer, " that the said replication does not contain any sufficient averment of time when moneys belonging to him, the said Wm. S. Bishop, came- to the hands and possession of the said Lewis Williams; and for that the said W"m. S. Bishop, in his repli- cation aforesaid, doth not aver that the said L. Williams did not in his lifetime, pay and deliver to the said Wm. S. Bishop, all the moneys and estate which came to his hands, as guardian of the said Wm. S. Bishop." The plff. joined in demurrer. On argument, demurrer overruled; and it was ordered by the court, that the deft, join issue to this replication to the plea of performance. Issue; trial, and verdict for plff. for $79109 damages assessed on occasion of the breaches assigned in the replication. Assignment of errors. 1st. For that there is no sufficient assignment of a breach in the replication or other pleadings, or by way of suggestion on the record. 2nd. For that no time is set forth at which the said sum of $3,000, was received by the said Lewis Williams. 3rd. It is not averred that L. Williams did not in his lifetime, pay the said Wm. S. Bishop, the said sum of $3,000, but only that Thomas Wallace did not pay it. 4th. It is not averred that L. Williams received the sum of $3,000, during the minority of the said Wm. S. Bishop. 5th. For that the replication afore- said does not show what .part of the said $3,000 was money, and what part other estate of Wm. S. Bishop. 6th. It is no where averred that any sum of money or other estate of Wm. S. Bishop, remained in the hand and possession of the said L. Williams, which had come to his hands as guar- dian aforesaid, after deducting such reasonable sum as the Register did allow the said L. Williams, as guardian as aforesaid, for his care and trouble in managing the estate. 7th. For that there is error in this, to \vit : That the court below, after overruling the demurrer, ordered the deft, to join issue, instead of giving judgment against him on the demurrer. There were other errors assigned, but these are the principal ones, and embrace the whole matter of the argument. J. W. Ruth, for plff. in error. There is no sufficient assignment of a breach of the condition of this- guardian bond, in any part of these pleadings. The only attempt at as- signing a breach is in the conclusion of the replication, where after a general denial of the plea of performance, the plff. below specifies the re- ceipt of $3,000 by Williams the guardian, which he says Wallace, the ad- ministrator of Wilds, did not pay over. Is this a breach? If it be not, ~he pleadings are fatally defective. The assignment of breaches is absolutely necessary. The act of assem- bly declares, that judgment shall not be rendered for the penalty of the bond, but for damages on occasion of the breaches assigned. Digest, 76. 90 BISHOP vs. WILDS' ADM'R. The Act of 1829, (7 vol. 260,) provides (sec. 3,) that no action shall be brought on a guardian bond after three years from the deter- Wherever a party pleads performance, the replication to that plea must suggest a breach : and if it do not assign a breach, or assign it badly, it is bad on demurrer either general or special. 1 Chiity, P. 613-4; Archb. 261, 2; Willes R. 12; 1 Saund. R. 103; 2 Taunt. 140-45; 2 New R. 362- 4; 5 Comyn, 352-3-4; C. 47, 48, 49. It is not averred in this replication, that the guardian received any sum of money over and above what the Register had allowed him for care, &c. ; nor that he had not paid all over and above. It is not even alledged that he did not pay the whole sum of $3,000. There was no cause of action arising to Bishop, from the fact that his guardian received $3,000, but it is from the fact of his not paying over such part of that sum as remained after deducting all allowances made by the Register. Yet the breach must disclose a cause of action, for it is upon this that the jury are to as- sess damages. 1 Salk. 138; 1 Show. 144; Hoi. 198, 233. Is the averment that L. Williams received $3,000, which Wallace, the administrator of Wilds, Williams' surety, had not paid over, a breach of this condition? In no part of the replication nor of the record, is it averred that L. Wil- liams did not pay over the money received by him, nor even that John Wilds in his lifetime, did not pay it. The guardian was only bound to pay over the balance of such sum as he received, after deducting allow- ances by the Register; we have pleaded that he did pay over this balance; the replication slips over this matter, and avers that he received $3,000, which we have not paid; and it is a rule in pleading, that where a ma- terial averment is not traversed, it is admitted. 1 Chitty, 667; 1 Salk. 91 ; 19 Johns. 95 ; 3 Caines C. 164. It might well be according to the finding of the jury that L. Williams received $791 09, of the estate of his ward; but did he receive that much over and above what was allowed him by the Register ; and it may also be true that this sum was not paid over by Thos. Wallace, administrator of J. W T ilds, but does this exclude the presumption of its having been paid by L. Williams or by John Wilds, in his lifetime, and this against a plea that it was paid by Williams, which is not even denied in the replication. The issue presented by these plead- ings was an immaterial one; and the damages are assessed upon this is- sue. 5 Taunt. 386. There being no sufficient breach assigned, the court below, ought to have rendered judgment on the demurrer, that the plff.take nothing by his writ; and we ask this court to render that judgment. Const. Art. 7, Sec. 2. The conclusion of this replication is wrong ; it ought to have been with a verification, giving us an opportunity to answer the new matter al- ledged. 1 Chitty P. 614; 1 Saund. 101, 102-3, notes. The court stopped Mr. Ruth on this point. The conclusion is undoubtedly wrong, but it is not assigned as a cause of error. The point was not insisted upon, but it was said that the conclusion was originally with a verification, and it was" changed after' the demurrer was overruled, and the deft, ordered to join issue. Huffington, for deft, in error. If a breach is assigned according to the words of the covenant, it is good. If a breach be good for any part it is sufficient. As it regards the time of the receipt of the money by L. Williams, the averment that it was received " on divers days and times " is sufficient. Where pleading tends to prolixity, general terms are allowed. More certainty is required in BISHOP vs. WILDS' ADM'R. 91 initiation or ceasing of the guardianship; saving (sec. 6,) to infants three years after coming to full age; and provided also, (sec. 10,) That if in any action judgment should be rendered for the plff. and resigning an affirmative breach than a negative. Lutw. 115; 2 Burr. 772; 3 T. Rep. 374; 5 B. & Aid. 712; 8 T. R. 459; 8 East, 80; 1 Bos. & Pul. 641 ; 1 Saund. PL & Evid. 162. [134.] 3 Taunt. 423. It is contended that we have not averred that this money was received by Williams, during the minority of Bishop. We have averred that it was received by Williams as guardian, which could only be during the minority of the ward. After that, he was not the guardian. The allow- ance of the Kegister for care and trouble, belongs to the guardian, and is no part of the estate of the ward. We have averred that Williams re- ceived $3,000 of the ward's estate, and the common sense meaning of the thing is, that he received so much estate due the ward, that which was coming to him, and consequently, over and above all allowances, for care and trouble. The law prohibits the Eegister from allowing more than the income of the ward's estate for his maintenance; it is absurd, there- fore, to suppose that the whole of this estate was sunk by such allowance. The case of Cornwallis vs. Suvery, 2 Burr. 772, is like this. There were deductions as here. It is therefore sufficiently averred that this money was received during the minority of Bishop, and that it was over and j bove the allowances made by the Register; and it is expressly alledged that this money is still wholly due and unpaid to the ward. Here then is a complete breach. The demurrer only goes to the replication and is sustained, the judg- ment would only have been that we should reply over; and not that we take nothing by our writ. 6 Taunt. 45; 13 Johns. 485; 9 do. 290; Digest, 27. If the court ought to have awarded a repleader, or given leave to amend, this court will make the same order. Where the court consider a demurrer frivolous, they will overrule it, and order the party to join issue. The consenting to join issue was a waiver of the demurrer. They might have refused to join issue, and suf- fered judgment to go upon the demurrer ; but they waived it and went to the jury. It is insufferable to let a deft, take his chance upon the issue, and still retain his objection to the overruling of the demurrer. Saund. PI. 514; 1 Tidd, 405-6; 2 do. 826. The conduct of the party here, there- fore, deprives him of all objections which are aided by a verdict ; and the informality here, if any, is cured by the verdict. H. M. Ridgely, continues for deft, in error. We don't deny that it was necessary for us to alledge a breach in some part of the pleadings; in the replication, as they have pleaded perform- ance; but we contend that we have assigned a sufficient breach; a breach which would be held good by any of the English courts. Reads the con- dition of the bond; the plea of performance. This plea admits and sup- poses the receipt of the money, the passing the accounts, ascertaining the balance; which balance it alledges L. Williams paid over. The repli- cation denies this payment of the balance, and makes a complete issue. ]f the pleading had stopped here, it would have been sufficient. But the replication does go on to state the receipt of a specific sum which is still wholly unpaid and unsatisfied. Here is a perfect breach. The breach should be assigned in the words of the contract or accord- ing to their legal effect. And it was not necessary to state particularly, the time of the receipt of the money; it is alledged that L. Williams re- 92 BISHOP vs. WILDS' ADM'R. afterwards reversed, a new action may be brought upon the same cause of action at any time within one year after such reversal. " This ceived it as guardian which could only be during the minority of Bishop. 1 Chitty PL 326; 3 Burr. 1718; Lutw. Did the court err in ordering the deft, to join issue after overruling his demurrer? It is the uniform practice to order the party to answer over after his demurrer fails. And where the plff's. pleading presents the issue he may, if he please, add the common similiter ; which the deft, is at lib- erty to strike out, if he do not consent to it. The order of the court did no more here. If the deft, wished the full advantage of his demurrer on appeal, he ought to have refused the issue. The consent to go to trial is a waiver of all objections to the pleadings, except such as may be fatal on special demurrer, after verdict. The verdict here cures all the defects, which at most, are merely formal. Willes R. 10; 1 Sellon's Pr. 388; 1 H. Blac. 254; Imp. Prac. 318; Lord Hardw. 67; 3 Burr. 1728; Chitty PL 331-2. If the court should be of opinion that there is error; and error not cured by the verdict ; what will this court do with the cause ? If the de- murrer had been decided against us below, the court would have permit- ted us to amend. Won't this court do the same? Bates, in reply, for plff. in error. There is nothing in the pleadings down to the allegation in the replica- tion of the receipt of $3,000, which bears any resemblance to a breach. It is a mere general denial of the plea of performance ; and yet the counsel says this is sufficient ; here is an issue, an affirmative and a negative. But an issue on a general plea of performance cannot be taken ; it tries noth- ing; it is immaterial; a specific breach or breaches must be assigned and issue taken thereupon. It is the want of this breach that makes the plead- ings here radically defective defective on general as well as on special demurrer ; as well after verdict as before verdict ; for the pleadings show no cause of action. The only attempt at a breach begins with the word but in the replication. The receipt of estate of the ward amounting to $3,000, is here alledged, a receipt by L. Williams, the guardian, between the date of the guardian, bond and the commencement of this suit, which sum to wit, the $3,000: the replication further states, Wallace, the ad- ministrator of Wilds, has not paid over to Wm. S. Bishop the minor, and the same is still wholly unpaid and unsatisfied. Is this a breach well as- signed ? If it be not, there is no breach in these pleadings. Is there any thing in it inconsistent with the plea? Wallace pleads that Williams paid over the balance of the estate, after deducting allowances. The replication states that Williams received $3,000, which Wallace had not paid over. Suppose he had denied that Williams paid over the $3,000, still the breach would have been too large, for he was not bound to pay it over, but only a balance of it after deducting all reasonable allowances. A breach too large is defective. But here it is not even alledged that Williams did not pay this money; nor that John Wilds did not pay it. But again. The time of the receipt of this money by the guardian, is not sufficiently specific. Here again, the breach is too large. The money was received on divers days and times, between the date of the guardian bond, and the commeneement of the suit. Now the replication to the plea of the statute in this case alledges that the suit was brought within three years after Bishop came of age. How then can it appear that the money or a part of it, was not received within the period which elapsed BISHOP vs. WILDS' ADM'R. 93 proviso however shall not avail if the first action at the time of bringing it, were barred by this act." The 13th or repealing section of the act of 1829 repeals the 14th section of the act of 1766, from and after the first day of September 1329, except so far as shall concern any action, cause of action, or matter which now is or on or before the first of September, shall be barred according to the form or effect of said section; and to any action or proceeding upon any such bond, which action or proceed- ing now is or on or before the first day of September shall be ac- cording to the form and effect of said section barred, the said section shall remain a bar and may be pleaded and shall avail in the same manner and as fully and effectually as if this act had not been passed. Bates, in support of demurrer. First. The statute of 1829 does not apply to suits previously brought and pending. Plff. was above twenty-four when that act was passed. His action was barred by the old Irw (1766,) before the passing of this act, and it remains barred according to the pro- viso of the 13th section. This act could not be pleaded to suits brought before it passed; its exception (sec. 10,) cannot go further back than the act itself. Second. The construction of the other side would make it a re- trospective law, varying the rights of the parties and unconstitu- tional. The law of the land as it exists enters into and forms a part of every contract. By that law the obligation of this contract a fter Bishop came of age. If so received, undoubtedly the sureties in the guardian bond are not liable for it. " On divers days and times " may be sufficiently precise, to avoid prolixity, but this must all be within the time when the sureties were liable; and it must so appear. Second. Our obedience to the order of the court cannot prejudice us here. We joined issue under their order, as we were bound to do. As to amendments, it is not usual for the court to allow them after a demur- rer is argued and the opinion of the court known. 1 Tidd, 657. CLAYTON, Chief Justice of the Common Pleas, delivered the opinion of the court reversing the judgment of the court below on the ground that there was not, in the replication or other pleading, or by way of sugges- tion on the record, any sufficient assignment of a breach of the condition of this guardian bond; and this court rendered judgment that the plff. below take nothing by his writ ; and judgment for costs. The plff. must assign a breach in some part of his pleading or suggest it on the record, and the breach must show a cause of action. A general de- nial of a plea of performance is not good. The breach here is manifestly too large both as to time, and the amount of the liability; H is larger than the condition ; and it is defective, because it is not alledged with sufficient certainty that the money, &c., received by Williams the guardian was not paid over by him, nor by John Wilds, the deft's. intestate, in his lifetime. The conclusion of the replication that " the money is still wholly unpaid, &c." must in legal construction, be applied to the previous denial of its having been paid by Wallace, the administrator of Wilds. The replication ought to have averred the receipt by L. Williams, on divers days and times between the date of the bond, and the time when the minor came of age, of money and estate of the ward, amounting to a certain sum over and above such reasonable sum as the Register had allowed, &<;., and then expressly negatived the payment of this balance, by Williams, the guardian, by John Wilds in his lifetime, or by the deft., his administrator, since his death. 04 BISHOP vs. WILDS' ADM'R. remained in force for three years after the plff. came of age, and no longer. If not sued upon within that time there is a perpetual bar which cannot be removed by a subsequent law. 4 Wheaton 122, Sturges vs. Crowning shield 199, 20G-7, 209, 578; 12 do. 213, 259. The same law as to remedies as rights. 12 Wheaton 262, 286-7, 295. No law is good which takes away a vested right. 5 Halls L. J. 502, 303, 317, 27. The act of 1829 enlarges and extends the responsibility of Wilds under his contract, which no legislature has the power to do. 1 Serg. & Rawle 236; Cox Digest 181; 3 Washing- ton's Rep. 313. Third. On this demurrer we may go back to any error in sub- stance. The breach in the narr is defective. There is no allega- tion that the administrator of Lewis Williams (the guardian,) did not pay the balance due; the only allegation is that Lewis Williams did not pay, and that it remains due. Cites 5 Com. Dig. 352, c. 47-8; 1 Chitiy 328-9; 6 Johns. 105; 1 Lord Raymond 284; 4 Hen. & Mumf. 277. Huffington and Ridgely, for plff. The act of 1829 repeals all limitation laws. Cases not then bar- red are regulated by that act. Unless you give it a retrospective effect as to such cases they can never be barred. Not being barred by the acts repealed when the repeal took place, they must be held within the retrospective operation of the act of 1829, or there is no act of limitation which can apply to them. A retrospective law that goes to the remedy and not to the right is good. 3 Dallas 386, 396. A law cannot be passed to impair a contract, but it may to enlarge a remedy. The cases cited by Mr. Bates refer to impairing the rights of the creditor to sue ; limiting his remedy to a shorter time. This act impairs no right; it lessens no remedy but enlarges this without affecting the right. You can- not lessen the limitation, for that would impair the contract ; but you may enlarge the remedy. Acts of limitation are passed for the ge- neral good; they fix limits to remedies with a view to prevent stale demands; but they do not impair the rights or affect the obligation of the contract. 4 Wheaton 206-7; I Kent Com. 413 to 420; 2 Peters 380, 413. Third. If there were any defect in the breach it should have been specially alledged; it cannot be urged on general demurrer. The narr however is good and the breach sufficient. If there be any de- fect it is in the plea of performance, which is too general. It should set out specially the acts of performance. 2 Johns. 413. Clayton for deft. 2 Johns, don't apply to this case for the de- murrer only opens those parts of the pleadings that refer to limitation. A repleader is never awarded except against the party who makes the bad plea. Never after demurrer, except on a demurrer to a plea in abatement. The judgment of the court below, ought to have been against the plff., that he take nothing by his writ; but according to their own decision they should have given judgment on the demurrer against the demur- rant. Their not doing so, and ordering the party to join issue was error. Judgment reversed. Ruth and Bates, for plff. in error. Huffington and Ridgely, for deft, error. BISHOP vs. WILDS' ADM'R. 95 The general object of this statute was to reduce the period of limi- tation. (Journal, of Senate of 1829, page 18, Judge Hall's re- marks.) The construction of the other side violates this object; for it would increase the surety's liability as to time. The plff. had no time by the old law in which to bring a new suit after reversal. The proviso (sec. 10,) is in a subsequent law and cannot apply to t;ie case. Under the old law, the deft, had a right to protect him- self from all suits brought on this bond after Bishop was twenty-four years old, by a plea of the statute. Right and obligation are corre- lative terms. It was an obligation of the plff. to sue within that time. (. ould the legislature repeal all limitation acts and leave all past cases without bar ? ]S T o more can they enlarge the time for one year as to past contracts, it equally impairs the obligation of the contract. The obligation of the contract is something more than the contract itself; ii; comprises the law as existing at the time, and which relates to the enforcing the contract; to impair this law is to impair the obligation. Prospective limitation laws do not do this. 12 Wheat. 326, 379. Cur. adv. rult. Mr. Justice Black delivered the opinion of the court. BLACK, J. " In August, 1808, Lewis Williams was appointed by tie Orphans' Court of Kent county guardian of William S. Bishop, tiie plff. in this action. He gave bond in the sum of $3000, with the usual condition, in which John Wilds, Maskiine Clark and James Spear were his sureties. This action is to recover from the administrator of John Wilds the balance due from Lewis Williams the guardian, which the guardian owed at his death to his ward. There is no controversy as to the amount of that balance, the parties having agreed upon the sum for which judgment shall be entered, provided the court should be with t ; ie plff. on the questions of law presented for their decision. The plff. attained the age of twenty-one on the 29th day of August, 1824. On the 8th day of August, 1827, he instituted an action against tie above deft, on the above guardian bond, in the Supreme Court for Kent county, which was within three years after his coming of age. He obtained judgment in this action at the March Term, 1830, which j udgment was reversed by the late High Court of Errors and Appeals, on a writ of error at the June Term, 1831. The present action was brought on the day of July, 1831, and is upon the same guar- dian bond upon which the former suit was instituted. The pleadings are drawn out at length and are brought to a close by a demurrer on the part of the deft., to the surreioinder of the nlff.. in which demurrer there is a joinder bv the plff. The great and leading question to be decided by the court is whether the plff's. action on this guardian bond is barred by any statute of limitation of this state. It is contended on the part of the deft., that inasmuch as the pre- sent action was not brought within three years after the plff. came of asre, he is barred by the 14th section of the act of 1766, (1 Del. L. 424.) To this the plff. answers that he did commence an action on this bond within three vears after he attained twenty-one, which action was pending in the Sum-erne Court on the 29th of January, 1829, Avhen the prespnt act of limitation passed ; that in the latter action he obtained a judgrmpnt in March, 1830, which iudorment upon a writ of was reversed by the late High Court of Errors and Appeals in 96 BISHOP vs. WILDS' ADM'R. June, 1831; and that the present action was brought upon the same bond within a year after that reversal, and that according to the pro- vision of the 10th section of the act of 1829, his present action is not barred. The deft, in reply to this contends first, that the act of 1829, (7 Del. Laws, 267,) and more particularly the 10th section of it, does not apply to suits brought prior to its passage ; and secondly, that that act cannot apply to, or operate upon, guardian bonds executed before it was passed, because it gives a right to renew actions on such bonds, which did not exist under our laws when these bonds were given, and that the granting such a right in relation to such bonds then and ante- cedently in existence would conflict with that part of the 10th section of the 1st article of the constitution of the United States, which re- stricts the states from passing any law impairing the obligation of contracts. These are substantially the positions presented for consideration. The 14th section of the act of 1766, provides " That all actions upon administration or guardian bonds hereafter executed, shall be com- menced within six years after the passing the said bonds, and all ac- tions to be commenced on any such bonds already given, shall be brought within six years after the publication of this act, and not after/' saving the right of those who may be under twenty-one years of age, femes covert, &c., &c., of bringing their actions within three years after the disability is removed. The act of 1829, provides " That no action shall be brought upon any guardian bond either against the principal or sureties, after the expiration of three years from the determination or ceasing of the guardianship." A saving of three years to infants and some others, is also provided by this act, after the removal of the disability. This act is by its terms extended to all the causes of action enumerated in it, " as well those that have been taken, executed, or settled heretofore, as those that shall be taken, executed, or settled hereafter." The 13th or repealing section of the act of 1829, declares that the 14th section of the act of 1766, together with various other sections nnd acts shall be and are thereby repealed from and after the first day of September, 1829, " except so far as shall concern any action, cause of action or matter which now is or on or before the first day of Sep- tember next, shall be barred according to the form or effect of the aforesaid act or sections, or either of them; and to any action or pro- ceeding upon any recognizance, bond, cause of action, account or mat- ter, which action or proceeding now is or on or before the first day of September next, shall be according to the form and effect of said acts or sections, or either of them barred, shall remain a bar and mav be pleaded, and shall avail in the same manner and as fully and effect- uallv as if this act had not been passed." This question then arises on a consideration of the foregoing sec- tions. Was the action or right of action of William S. Bishop on this bond barred on September 1st. 1829. "according to the form and ef- fect " of the 14th section of the act of 1766 ? If it was, that act avails and must continue a bar. The plff. attained the age of twentv-one on the 29th rlav of August, 1824. On the 8th dav of August, 1827, (in less than three vears after he came of age.) he brought an action on this bond against the present defendant in the Supreme Court. On the 29th day of January, 1829, BISHOP vs. "WILDS' AD.M'U. 1)7 the day on which our present act of limitation was passed, and also on the first day of September, in the same year when the repealing clause in it took effect, that action was pending in the Supreme Court, and undecided. On the 8th day of August, 1827, the day on which the writ was issued, the plff' s. action on this bond was not barred, as three 3 ears had not elapsed after his attaining age, and as that suit re- mained in the Supreme Court undecided on September 1, 1829, the plff s. action or cause of action was not barred on that day. His ac- tion had been commenced within three years, and according to the ' form and effect" of the act of 1760, was not barred. It was still in court undecided on the 1st of September, 1829. Then if his action or cause of action was not barred on that day, the 14th section of the act of 1766 is no bar to this action, inasmuch as that section stands re- pealed by the act of 1829, except so far as concerns any action or cause of action which by the form and effect of that section was barred on the first day of September, 1829. To such actions and causes of ac- tion and to such only, can the 14th section of the act of 1766 be held a bar. Its principle of operation or existence is retained for those cases nlone, in relation to which it was a bar on the 1st of September, 1829. As to all other cases it is extinct. If then you show that by that sec- tion the plff's. action or cause of action was not barred, when that sec- Uon was to stand repealed, then by the express terms of the repealing section in the act of 1829, the 14th section of the act of 1766 was as to such a case repealed, and could no longer operate upon it. The plead- ings in this case show, and the fact is not controverted, that on the 1st lay of September, 1829, an action was pending in the Supreme Court Between these same parties on this very guardian bond, which was not ihen barred by the 14th section of the act of 1766, because that action had been brought within the time limited in the saving in that sec- tion. The action therefore, of the plff. on this bond not having been bar- red on September 1, 1829, is not within the exception in the repealing clause of the act of 1829, and the 14th section of the act of 1766, as to his action or right of action is entirely repealed, and can no longer operate or apply to this bond. The next question to be considered is whether the act of 1829, or the 10th section of that act can be applied to actions pending in court when that act was passed. If such actions or causes of action were barred on the 1st of September, 1829, and they are to be held as not within the act of 1829, because actions were pending when that act passed, then it would follow that to such actions or causes of action, there is no limi- tation by our statute. If they were not barred on September 1, 1829, according to the provisions of the limitation acts which were on that day to stand repealed, and are not within the act of 1829 which on that day was to go into full operation, and are not within the exception contained in the repealing clause of that act, where is there any act of limitation to bear upon them, or that can now be used as a bar to actions that were pending on 29th January, 1829, which were not barred on 1st September, 1829, and which may be again in consequence of a non pros, discontinuance or otherwise, brought by a renewed suit before this court. Is there any thing in 1he act of 1829 which expressly excludes pending actions from the 13 08 BISHOP vs. WILDS' ADM'H. operation of this 10th section? If there is not, then upon what prin- ciple or for what sufficient reason should they be excluded? The design of our acts of limitation is to close our courts against those who sleep on their rights, and neglect to prosecute them in a reasonable time; this neglect is to be taken as evidence of the debt being paid or released. If, however, the party does not allow his claim to sleep, but prosecutes it within tho time prescribed, this pre- sumption does not arise; he may fail in his suit, but his conduct has rebutted the legal presumption. The general design of the legisla- ture in enacting the 10th section of the act of 1829, was to protect the rights of all those who had prosecuted their actions within the time limited for bringing such actions, and upon a reversal of a judg- ment in any action, to give the patty a right to renew it within a year from such reversal. The words are general and without excep- tion, where the first action was not barred by that act at the time of bringing it. We think the present case is within the letter of the statute ; but if we should be mistaken in this, it is clearly within its spirit and equity. Suppose on January 1, 1828, A. to have made a sale of goods to B. on the same day he also makes a sale of goods to C. On the 1st of January 1829, he brings suit for the price of the goods against B., and on the 1st of February or 2nd September, 1829, he brings suit against C. for the value of the goods sold him. In each case he ob- tains a judgment, which judgments are reversed in 1831. Three years have elapsed. According to the argument he may renew his action against C. because no suit was pending, when the act of 1829 was passed, but not against B. ; because a suit was then pending. One claim stands barred and the other is free from all bar, although both accounts accrued on the same day. Where is the reason for such a distinction. If the law however, creates it, the court must yield to it, but the rule must appear to be clearly fixed to lead us to give ef- fect to it, when we cannot perceive any good reason for the rule. It will be observed that there are in the act no words expressly excluding from the operation of the 10th section, pending actions. Their exclusion is a matter of argument from some of the provisions of the law. By comparing this act with former acts relating to the game matter, it is believed that aid as to its true construction may be obtained. By comparing the 10th section of the act of 1829, with the British statute of limitation passed in the twenty-first vear of the reign of James the first, chapter 16, and with our act of limitation passed in 1742, in the fifteenth year of George second, (1 Del. Laws 229,) it will be perceived that in the act of 1829, there is a change of phra- seology, from what had been used in the acts referred to, touching the same subject matter, which it cannot be believed was accidental or undersigned, as but little if any doubt can be entertained that our statute, and also the British, must have been before the drafter of this 10th section; or in fact, that that section was prepared from those two statutes. The 3rd section of the statute of James provides, that all actions of trespass, replevin, detinue, of account and upon the case, &c., &c., which shall be sued or brought at any time after the end of this pre- BISHOP vs. WILDS' Ami'it. 99 tent session of Parliament, shall be sued within years, &c., we. The 4th section provides for the renewal of the suit in the event of reversal or arrest of judgment, as was the design of the 10th section of our act of 1829. Its language is if in any of the said ac- tions or suits judgment be given tor the plff., and the same be re- v ersed by error, &c. &c., the plff. may commence a new action within a year. The right of renewing was thus confined to the said actions; to those actions enumerated and designated in the preceed- ing section, which were those actions which should be brought after the end of the session of that Parliament which enacted the law. Pending actions were therefore clearly excluded by the terms of the statute of James from this privilege of renewing within a year after reversal. It may not be amiss to remark, that this section has in England received not a rigid or merely literal construction, but a Jiberal one; and that cases not within the words of the section, (as the termination of a suit by death or marriage,) have by an equita- ble construction of that section been held within it. 'The inclina- tion of the courts in England has not been to circumscribe the ope- ration of this section, but rather to enlarge its limits and to- embrace within it those cases which equitably ought to be covered by it. Should this court, in giving a construction for the first time to a section similar in its design, be inclined to adapt one less equitable and liberal than has been adopted in England unless they are plainly required by the law in question so to do? In our own statute passed in 1742 (1 D. L. 229,) a feature similar :o that in the statute of James is to be found. The 2nd section provides that all actions of trespass, replevin, on the case, &c. &c. " which shall be sued at any time after the publi- cation of that act, shall be commenced within it, &c/' Section 3rd which follows, provides " that if in any of the said actions or suits judgment be given for the plff., and the same be re- versed by error, &c." " That in all such cases the plff. may com- nence a new action within a year." This act did not give the right of renewal within a year after re- versal to actions pending at its passage, but confined this privilege to the said actions that is, causes of action which should be sued after the publication of that act, and necessarily excluded all brought prior thereto. Had the legislature of 1829 intended to have confined the 10th section of the act of limitation passed by them, to actions futurely to be brought, why not retain the phraseology of the act of James or that of our own statute of 1742. Can we suppose otherwise, than that they designed to vary the provision when they have in a very material point changed the phraseology? They do not use the words ; 'if in any action to be brought after the publication of this act;" nor "if in any action hereafter to be brought;" nor "if in any of the said actions " judgment be rendered for the plff. and the same be reversed for error, &c., thus confining the section, to actions " to be brought " according to the language of the sections preceding, but they use these comprehensive words "that if in any action, judg- ment shall be rendered for the plff. and the said judgment be after- waic's reversed, &c., a new action may be brought upon the same 100 BISHOP vs. WILDS' ADM'R. cause of action at any time within a year after said reversal.'' Had it been their intention to confine this provision to suits thereafter to be brotight and to exclude pending actions, why abandon those guards in language which had been used in previous acts to effect this very object. When we find them using the words "if in any action judgment be rendered," are we to infer that they meant to say " if in any action hereafter to be brought " judgment be rendered, and this too when we find that they cautiously abstain from using those words, which had been used in the section they were repealing, and which words excluded from the operation of a similar section, pen- ding actions. Such an inference in our judgment would be directly contrary to that which ought under these circumstances to be drawn. It has been urged with much earnestness by one of the counsel for the deft., that the act of 1829 cannot be pleaded to actions brought before it passed, and that the words of the proviso at the close of the 1 Oth section, that " this proviso shall not avail if the first action at the time of bringing it were barred by this act; but if this act were pleaded in the first action and verdict thereupon found for the plff., such verdict shall be conclusive evidence that the first action was not at the time of bringing it barred by this act" show that future ac- tions alone were intended to be embraced by this section. In considering this section the repealing section must be lost sight of. Suits that were pending on 29th January 1829, if barred at all were barred by acts passed antecedent thereto, and those acts by the terms of the repealing clause, were continued as a bar and were pleadable as such. To all actions not barred on the 1st of Septem- ber 1829, the act of 1829 is the only one that can be pleaded. True it cannot avail per se as a bar to actions pending at its passage ; but for this reason. They were not barred by the previous!}' existing acts which were then repealed. If they had been thus barred, such acts were continued a bar; the act of 1829 did not create but conti- nued this bar and made it perpetual, might it not then be argued with plausibility, that such actions were barred by the act of 1829, because that act continued that bar which had been fixed by antece- dent acts. The repealing clause makes perpetual the bar which existed ac- cording to the old acts on September 1st 1829. In relation to such demands therefore as were then barred, there could be no renewed actions, for that clause declared them forever debarred of a right of suit. A renewed action is therefore necessarily forbidden by this section as to all claims barred on September 1st 1829. The proviso in the 10th section then proceeds to exclude from a new action (not those cases which were barred by the former acts, as they were in fact excluded by the 13th section, ) but those cases which were not barred on 1st September 1829, and which could alone be barred by the act of 1829; and to prescribe what should be a conclusive rule of evidence, that the first action was not barred. This rule is confined to those actions which were not barred on 1st of September 1829, and is to govern in all such cases. But no rule is prescribed as to what shall be evidence of a bar under the old acts on or prior to the 1st of September 1829. That is left to depend upon the terms of the old limitation acts and the proof in the particular case. BISHOP vs. WILDS' ADM'K. 101 The language in the latter part of the proviso that the ri^ht given " shall not avail if the first action at the time of bringing it were bar- red by that act," cannot according to our judgment be held as exclu- ding from the operation of the 10th section pending actions, when you consider the comprehensive language used in it as contrasted with the guarded phraseology of the statute of James, and the act of 1712. This proviso became necessary to guard against certain actions or causes of action standing revived by the language used in the first part of the section, which were in fact barred by that act. One pro- vision of that section is that " if the plff. or deft, die after writ sued and before the deft's. appearance, a new action may be brought at any time within a year after such death." Xow if an action had been brought on an account of more than three years' standing, and Ihe plff. and deft, died after writ sued and before appearance, a new action might be brought within the year, although by the 5th section the action was barred. To prevent such a conclusion, or the right to sue where the action was barred by other parts of that act would seem to have been the design, in saying that such right to a new action should not exist if the claim was barred bv that act. If that act bar- red the claim a right to renew the action was not given by the 10th section. If the former acts barred the claim, the bar was perpetua- ted in the repealing clause, and by that clause those acts could al- ways be pleaded to an original or renewed action. The plff/8 first action was brought in 1827 within three years after he came of age. It remained in court on the 1st September 1829. He afterwards obtained judgment in that action that judg- ment was reversed by the late High Court of Errors and Appeals in 1831, and the present suit instituted on the same cause of action in less than a year after that reversal. The plff.'s cause of action was not barred on September 1st 1829, according to the 14th section of the act of 1766, a suit having been brought in time and then pending; as to his claim then the 14th section of the act of 1766 is repealed. It is not barred by the act of 1829 the 10th section of which in our judgment embraces all actions, as well those then pending as those thereafter to be brought because his action was renewed within the time, and on one of the events provided for in that section; he is therefore entitled to judgment for his debt unless the act of 1829 does as is contended for by the deft., violate that part of the 10th section of the first article of the constitution of the U. States, which restricts the several states from passing " any law impairing the obligation of contracts." When the guardian bond on which this suit is founded was exe- cuted, suits upon such bonds were by the then laws of this state limited to six years after the passing of the bonds, with a saving of three years after they came of age to those under age. The 3rd section of the act of 1742 heretofore referred to, giving a right to renew the action in certain ca^ did not embrace guardian bonds. In relation to such bonds therefore, there did not exist any provision for renewing an action upon it within a vear after reversal or arrest of judgment, as was provided in the 10th section of the act of 1829, and which section clearly embraced guardian bonds. This 102 BISHOP vs. WILDS' ADM'R. right thus granted to renew the action within the year it is contended, is a violation of the obligation of the contract made by John Wilds with the plff., because the laws existing when he entered into the bond, did not give such a right. On an examination of the various acts of limitation that have been from time to time passed by the legislature of this state, it does not appear to have been their impression that such laws were to operate only on those contracts that should thereafter be entered into nor that an elargement or diminution of the time for bringing actions, would in relation to matters of contract or rights of action existing when such laws were passed, be a violation of this clause of the con- stitution of the U. States. An opinion directly the reverse seems to have been held. Nor are we aware of any decision that would show that such a principle has been recognized by the courts of this state. These points are mentioned only as evidence that such has not been the view taken by the legislature, courts and bar of this state, as to the validity of such laws. The counsel for the deft, have referred to the case of Sturges vs. Crowningshield, 4 Wheaton 122, and to the case of Ogden vs. Saunders, 12 Wheaton 213, to show the opinions held by the judges of the Supreme Court of the U. States, in relation to this question. In those cases the validity of acts of limitation in refer- ence to antecedent contracts, was not the point debated before or to be decided by the Supreme Court. The judges referred to acts of limitation to illustrate their arguments and as analogous to the ques- tion they were considering, and each assumed the principle to be what they supposed in such a case it would be, and reasoned upon that assumption. No little difference of opinion seems to have been entertained by the judges in those cases (particularly in the latter,) as to the nature, effect and validitv of such laws, arising no doubt from the fact that this question had not been debated before them or considered by them with a view to a decision upon it. In the case of Jackson vs. Lampshire, 3 Peters 280, the right of a state to pass registering and recording acts, and also acts of limi- tation, and to prescribe their effect is expressly recognized, and in Hawkins vs. Barney's lessee, 5 Peters 467, where the question of constitutionality of an act of limitation of Kentucky was discussed, its validity was sustained. Does an act of limitation which mav exist at the time a contract is made enter into or become a part of that contract or does it pertain to the remedy only? A contract is an an agreement bv which a partv enerages to do or abstain from doing a particular thin?: The law binds him to re- form his undertaking this is the obligation of his contract: The obligation of the contract has been styled " the chain of the law " which applies to and enforces performance or the pavment of an equivalent for non performance. The contract is the act of the par- ties the law imposes the obligation or duty of performance, but the remedy by which that performance is to be enforced or an equivalent in money obtained belongs to government and is granted on such terms and to such extent as to their discretion may seem proper. BISHOP vs. WILDS' ADM'R. 103 Whether an act of limitation which takes away a creditor's right to sue or limits it to a less timo than it was limited by the law ex- isting when the contract was made impairs the obligation of his con- tract and is a violation of the constitution, is not the question pre- sented to the court; and, according to our view if the case, is not one that it is necessary for us to decide. If it was we should have no difficulty on the point. The question before us is, according to our apprehension, a very different one It is whether a law which enlar- ges the time for bringing a suit, and thus keeps the cause of action alive or in a condition to be sued upon fox a longer period than it would have been by the law in force when the contract was entered into, is a law impairing the obligation of a contract? Does the keeping the contract from annihilation the preserving it in force when not against its terms or stipulations, import the same as impairing annulling or destroying it? To continue a con- tract and to impair or destroy it are matters essentially different. How can a law which gives life or action to a lifeless dead or inef- fective contract be said to impair its obligation unless that death or ineffectiveness was produced by the terms of the contract? In this case, the contract and obligation of the obligors in this bond was that Williams should faithfully discharge his trust as guardian, and pay and deliver to the plff. all such sums of money and other estate as should come to his hands as guardian, after deducting the allowances that might be made by the register, and upon this event and on this alone, that obligation "should be void or else should be and remain in full force and virtue." Performance of this engagement and performance alone according to the terms of the contract is to annul or satisfy it. This bond contains no stipulation that the obligors shall be released if they are not sued upon it within three or six or any other number of years. Time is not made a part of this contract in relation to it there is no contract nor stipulation. In the absence of any contract on this point how can we say that the obligation of the defendant's contract is impaired by a law which allows the plff. a further time to compel the defendant to execute his contract than was given by the law which was in force when the contract originated, when according to the terms of the contract performance alone was to discharge the defendant from this obliga- tion. The CONTRACT is one thing that the legislature cannot alter the remedy for a violation of the contract is another and may he altered, modified enlarged or limited according to the discretion of the legis- lature, who alone gives it. They may fix a period within which if no action be brought, their courts shall be closed, and establish as the rule for the government of their courts, that th^ effect of such acquiescence shall be evidence that the contract has been performed or satisfied. This presumption or evidence of performance is not a part of the contract and they may in their discretion change or alter it. How does a change of such a rule of presurrmtion, or evidence of performance, which rule is created by the legislature and not by the parties, impair the obligation of the contract. In this state the lands of a debtor (except under a mortgage) can- not be sold by execution process, if the rents and profits will in 104: BISHOP vs. WILDS' seven years pay all liens. If this restriction were repealed and the lands of a debtor sold under a judgment existing prior to the repeal, which would in seven years pay all liens, could he establish the po- sition that such sale was illegal and the repealing law void because a more prompt and enlarged remedy was afforded the creditor, than was given him by the law in force when the debt arose. Would the obligation of his contract be violated or impaired by the repeal, when that repeal merely enlarges the remedy ? In Virginia lands cannot be sold to pay debts, but as in England, a moiety is delivered by elegit to the creditor. If that state should adopt our system, would this change of the remedy impair the ob- ligation of contracts existing at the time of the change and prevent the sale of lands to satisfy debts which originated before the change, because lands could not be seized and sold for the payment of debts when these debts were created? Such a modification of the remedy could not it is apprehended be deemed an impairing of existing con- tracts or of their obligation. Such acts would partake of the char- acter of acts of limitation, and would all be held as relating to the remedy and not interfering with the contract or its obligation, as the right of a state to regulate the remedy and modes of proceeding in its own courts, and to prescribe the evidence which their courts shall receive and the effect of that evidence cannot be questioned. This is a right which the states have not parted with. It does not belong to a debtor to complain that a legislative act impairs the obligation of his contract, unless the terms or effect of that contract be altered by such law. He cannot complain that the obligation of his contract, which is performance of his agreement according to its stipulations, is im- paired, because the legislature grants to his creditor further time means or remedies to coerce or compel the debtor to execute an agreement or contract which he has contracted to execute or perform without limitation as to time. The debtor is not for upholding, or "sustaining or continuing the existence or remedies of the contract, but for holding it at an end and as no longer of any obligation not because he has performed what 'he engaged to do, but because his creditor has not forced him to that performance by a suit within a given time, which time was not provided for by the contract and he contends that the obligation of his contract is impaired because an act of limitation extends to the person with whom he contracted further time for suit than was given by the law when the contract was made. That the extending or enlarging the remedy to compel the defaulter to comply with his con- tract the holding the contract as not extinct annihilated or without a remedy to enforce it, impairs the obligation of that contract. Such in our judgment is not the construction to be put on the clause of the constitution of the United States, and we cannot consider the 10th section of the act of 1829 regulating the remedy on contracts and making a most equitable provision for the renewal of actions, where a party had not slept upon his rights beyond the time fixed by law, but asserted them by an action within time, which for some error has been reversed, can be held in relation to a debtor as impair- ing the obligation of his contract. BONWILL vs. DICKSOX. 105 There remains one point to be noticed which was urged by tin. 1 counsel for the defendant. The declaration avers that Lewis Williams did not in his liiVliinc pay to the plff. the $3,000 the penalty of the bond but wholly iv- lused so to do, and that the same remained at his death and still remains due and unpaid to the plff. It further avers that neither John Wilds in his lifetime or Thomas Wallace his administrator after his disease though often requested ever paid William S. Bishop any part of that sum; but there is not an express averment that the administrator of Lewis Williams did not pay the amount of the bond. For the want of this latter averment it is contended the declaration is defective and that as the demurrer reaches back through the whole record and attaches ultimately upon the first substantial defect, this error in the declaration of the plff. must be fatal to his action. The answer to this is a very plain and conclusive one. Xo part of this record shows that there ever existed any administrator to the estate of Lewis Williams. If there was no administration on the estate of Williams, there could not with any propriety, certainlv there was no necessity, for such an averment as is contended there should have been. De non apparentibus et non existentibus eadem cst lex. This declaration negatives payment by each and every person < onnected with the guardian or this surety or their estates whose du- ties and rights it was (so far as appears from the record) to pay this bond or comply with its condition. It avers that Williams did not pay in his lifetime that the money remained due and unpaid at his death and still remains due and unpaid. More than this the law does not require. The opinion of the court therefore is that the demurrer must be overruled and that judgment be entered for the plff. for the penalty of the bond to be released on payment of the sum ascertained ,by the agreement of the parties to be due and the costs. Judgment for plaintiff. Huffington and Ridgely, for plff. Bates and Clayton, for deft. WILLIAM M. BOXWILL vs. SAMUEL DICKSON. The court will not permit a party to demur after issue joined and jury sworn. Affirmative pleadings do not always give the right to conclude; this depends on the onus probandi and is in the discretion of the court. TRESPASS, assault and battery. Plea, justification. The plea of non cul. had also been put in; but before trial deft.'s counsel asked and obtained of the court leave to withdraw it. The plff.'s counsel, though in court when the motion was made, were not annrised of the plea being withdrawn until after the jury was sworn. They then wished to demur, but the court would not permit them as they had buffered the jury to be sworn without objection. 14 106 BEESOX'S EX'R vs. BEESON. The defendant offered no evidence of justification but merely in mitigation of damages. A question then arose as to the order of addressing the jury, the deft, claiming the right to conclude as his only plea was affirmative. Per curium; The question is one upon which the court in their discretion pass, and it depends more upon the state of the proof than of the pleadings. Affirmative pleadings usually impose the onus probandi hut not always. In this case the deft, has offered no evi- dence whatever to sustain his plea of justification ; but only in mi- tigation of damages. It is not the case of a contrariety of testimony on the point; but of no testimony. The plea of justification, there- fore, without any effort to support it, does not give the deft, the re- ply. It is essential to enable the jury to give a verdict that the plff. shall proceed to show his damages. He therefore is entitled o the reply. Roscoe Ev. 132; 2 Stark. Rep. 487; 14 Com. Law Rep. 176'; Stark. Ev. Ch. 3 p. 384-5; 3 Campb. 366. Chandler et.al. vs. Ferris, post. The plaintiff had a verdict. Clayton and Bates, for plff. Ridaehj, for deft. RAY, for the use of MOON vs. WINLOCK HALL. Justices of the peace must certify in the record to the qualification of referees. CERTIORARI to justice. Trial by referees, report and judgment thereon. Exception. That it does not appear that the referees were duly sworn. The record did not otherwise allude to the qualification of the ref- erees than by the usual expression in the report " we the referees after having been duly qualified," &c. Per Cur. The proceedings must be reversed. It should appear from the record of the justice that he had sworn the referees, and should not be left to interference from their report. Sec. 6, Dig. 333. Judgment reversed. JOHN ELLIOTT, Ex'r. of REBECCA BEESON vs. JOSEPH BEESON and THOMAS BEESOX, adm'r. of THOMAS BEE- SON, deceased. Interest may be recovered on the arrears of an annuity given in lieu of dower. A probate may be produced in any stage of a cause. SUMMONS DEBT. Pleas, nil debet; payment and the act of limi- tations. Reps, and issues to first and second pleas. Demurrer to the third plea. This was an action for the arrears of an annuity of forty pounds granted by the will of Thomas Beeson to his wife Rebecca Beeson and charged upon the real estate devised to his two sons Jonathan SlPPLE VS. SCOTTOX. 107 and Thomas Beeson. The amount claimed to be in arrear at the ueath of Mrs. Beeson was $382 92 which sum plff. claimed, with in- terest by way of damages. In the progress of the cause and after the plff. had closed his case the deft.'s counsel moved a nonsuit for want of probate. The plff. produced a probate which he had inadvertently neglected to offer while laying his case before the jury. The deft, insisted it was too late; but the court received the probate and refused the nonsuit. A probate is no part of the evidence and if produced when demanded in any stage of the cause it is sufficient. The principal question in the case was whether interest was allow- able at all on arrears of an annuity; and, if allowable in any case, whether it could be recovered as damages in the action of debt, Tew vs. Lord Winterton, 3 Bro. Ch. Rep. 490. It was contended that in debt the damages were always nominal, and that even if interest might be recovered in the action of assumpsit or on a proceeding in (hancery it could not in this action. This question was reserved for hearing and decision by the court, and the jury found a verdict for S249 90 inclusive of interest. The case was stirred at a subsequent term but not much argued on ihis point. The court however said that the law in this countrv on 1he subject of interest was in many respects different from the Eng- lish law. It has been decided in this state that interest is allowable on the arrears of an annuity given in lieu of dower. Buckmaster vs. Buckmaster; Chancery; Kent. (See note to Waples, ex'r. vs. Waples et al. post.) Judgment for plaintiff. Hamilton and Booth, for plff. J. A. Bayard, for deft. CALEB H. SIPPLE vs. JOHN B. SCOTTEX. The inventory and appraisement of goods is the levy. Notices of sale should specify the most prominent and valuable articles. An unexpired term ought to be specified in the advertisement. Fi. FA. Sale made, inter alia, of the unexpired term of a lease of land from 1st January 1832 for one year. Sale made 1st August 1832. Kule to show cause why the sale of the term should not be set aside. First, Because it was not entered in the inventory and ap- praisement until after the sale ; and ; and, Second, Because it was not advertised in the notices of sale ; which being proved The court said the sale must be set aside. The property was not levied on until the day of sale. The act of assembly, (Dig. 240,,) provides that goods shall not be sold until thirty days after levy and notice. In England seizure and possession is the only levy, but here the practice is not to take the goods into actual possession. Is not therefore an inventory and appraisement the substitute for the levy? It would seem reasonable. But the lease was not advertised. 108 SAMUEL'S EX'R. vs. M'DOWELL. Every article need not be scpcified in the notice of sale, but the most prominent and valuable should be. An unexpired term in a farm is of this description and ought to have been noticed. It sold in this case for $17, and is proved to have been worth $150. Rule absolute. Frame, for plff. NICHOLAS SAMUEL'S Ex'r. vs. SAMUEL M'DOWELL. A public agent giving a due bill in his own name held liable personally. CAPIAS CASE. Pleas, Ne unques executor, non assumpsit, pay- ment and discount, and act limitations. Replications and issues. This action was brought for the amount of a due bill ($65,) given by M'Dowell to Nicholas Samuel for services on board of a light boat belonging to the United Stares. The evidence was that M'Dow- ell was a deputy of the collector of the port of Wilmington, and re- ceived money to pay the wages of the hands employed in the light boats of whom Samuel was one. These hands were in the employ- ment of the United States. The due bill was produced. It was as follows: February 8, 1828, Samuel M'Dowell acknowledges to owe Nicholas Samuel $65, being the balance due for his services on board of light boat No. 2. (Signed) Samuel M'Dowell. Bayard and Read, Jr., for deft, moved a nonsuit on the ground that an action would not lie against a public officer for a breach of official duty. 7 Com. L. Rep. 434; 3 Bos. & Pul. 235. Hamilton for plff. contended that a deputy collector was not an officer known to the law, and that the deft, had made himself person- ally responsible by a promise in his individual capacity. It is not merely an implied liability but an express undertaking. The court refused the nonsuit. We recognize the general principle that an officer of the govern- ment is not individually bound for its responsibilities ; but this is not that case. Col. Whitely was the collector in this case and received money of the government to pay these men. He paid the money for this purpose to the deft, here who was his deputy, clerk, or agent. We dc not say that even under these circumstances there arises an implied assumpsit and consequent liability on the part of the agent; but here he has given a due bill for the amount, acknowl- edging himself to be personally indebted to the plff.'s testator. We think that neither public policy nor private justice will require or allow that he should not be considered personally responsible. The case went on, but the deft, having proved an actual payment, had a verdict. Hamilton for plff. J. A. Bayard and Bead, Jr., for deft. DUNCAN vs. NEWLIN. 10 ( J The Lessee of JOHN S. VANDYKE vs. THOMPSON, KEYBOLD and others. A witness to a deed who has proved it in court may be impeached though he be not a witness in the cause. EJECTMENT. This ejectment was founded on a deed from A. Jamison, a former owner of the property, to John S. Vandyke in trust for his son, which deed the defts. alledged to be a forgery. It had not been recorded until about the time of bringing this suit though dated several years previous. Before recording, the deed was proved in open court by Henry Sinex one of the subscribing witnesses, the other being dead. The defts. now called testimony to impeach the character of Sinex; which Bayard for plff. objected to on the ground that Sinex had not been examined as a witness in this cause. Not having been sum- moned or examined as a witness they were not prepared on their side to meet such an attack, nor was the other side entitled to make it. The witness also should Lave an opportunity to sustain his own character, and the administration of justice was concerned that the characters of testamentary or instrumental witnesses should not be thus attacked without opportunity of defence whenever the instru- ment itself was called in question. To this it was answered by J. M. Clayton for deft, that the oath of Sinex gave to this deed its only consequence; without that oath the deed could not be read in evidence, and would be of no validity. The testimony therefore of Sinex is important to the plff. in this cause; and the defts. have a right to attack that testimony by show- ing that it is not of such character as can sustain this deed. By the Court. We think the defts. have a right to impeach the character of the witness who proved this deed. That probate is an ex parte proceeding. The doctrine contended for by plff. would lead to the worst of consequences. A felon convict, or insane man might go before the prothonotarv and prove a deed which 'though forged, might not be invalidated unless you could attack the wit- ness' character. "In the progress of the cause Mr. Bayard submitted to a nonsuit; and Vandvke was arrested during the term and imprisoned on a charge of forgery. J. A. Bayard fo*r plff. J. M. Clayton and Rogers for defts. JOHN DUNCAN vs. THOMAS S. NEWLIN, surviving partner of NEWLIN & WOLLASTON. A parol promise revives a debt due by promissory note for six years. ASSUMPSIT. Pleas, non assumpsit and act of limitations. Issues. This was an action on a promissory note drawn by Newlin & 110 SIMMONS vs. LOGAN. Woollaston iu favor of Duncan, and dated 13th October 1823, for $404. On the books of Newlin & Woollaston were the following credits; July 3, 1826, credit by $100 or account of this note ; 7th May 1827 interest up to date, and 31st December 1827, interest to date. Bayard for defts. raised this question: whether if a promise, or what is equivalent to a promise, be proved and relied on to take a promissory note out of the a<"+ ~ f limitations, that promise must not be within three years of the bringing suit. And he argued that the promise being by parol could have no greater effect in reviving an- other cause of action than if itself had been the cause of action. A parol acknowledgment, therefore, of a debt due by note would sus- tain that note no longer than for three years. But the court decided that such an acknowledgment revived the debt in its original efficacy. The admission of a debt existing in the shape of a promissory note, therefore, revives the debt for the whole period applicable to such a form of security. The effect of the ad- mission depends not upon its character whether by parol or in writ- ing, but upon the nature of the original cause of action. The argu- ment however would fail in this case if it were otherwise. The proof is that the credit of July 3, 1826 of $100 is in the handwrit- ing of Woolaston, one of the partners. This was within six years of the bringing this suit and being an acknowledgment under the hand of the party of a subsisting demand, the limitation applicable to it would be six years even if this were the ground of action. The acknowledgment is in the books of the partnership and therefore stronger than if written in a letter or other form. A verdict was taken for plff. for $388 80, and the court being re- quested reserved this question for the court in bank. C3P 3 Vide post page. Hamilton for plff. J. A. Bayard for deft. The Lessee of GEORGE SIMMONS vs. JOHN LOGAN, tenant in possession. A. being seized in fee of an estate, joins in a deed of partition of the estate at his wife's father, and takes this estate, inter alia, as his wife's share of her father's estate held that the heirs of A. are estopped from claiming A.'s original title. A deed of partition operates as an estoppel to the parties and all claiming tinder them. EJECTMENT, Verdict taken subject to the opinion of the court on a case stated. The case stated set forth that William Woodcock and others by deed dated 12th March 1792, conveyed the land in question to Pat- rick O'Flinn, his heirs and assigns. That Patrick O'Flinn died intestate in July 1818, leaving a widow Sarah, and one child Eliza- beth, the wife of Alexander Reynolds. After O'Flinn's death Rey- nolds and wife went into possession of the land, and built a house on it and lived there till their death. Upon their death Sarah O'Flinn took possession of the land claiming the same under a deed of parti- SIMMONS vs. LOGAN. Ill tion executed by a certain Mary Muggins of the one part, and by Patrick O'Flinn and the said Sarah of the other part, bearing date the 13th September 1811. Sarah O'Flinn continued to receive the rents and profits of the land in dispute, and acted as the owner there- of until her death in December 1829. On the 26th June 1819 Alex- ander Reynolds and wife executed a mortgage of this land to George Simmons and Eli Sharpe. On this mortgage the land was sold by the sheriff and purchased by the said George Simmons the plff.'s lessor, to whom a deed has been made by the sheriff. Logan the deft, is in possession, claiming under Sarah O'Flinn's title derived as aforesaid through the said deed of partition. Extracts from the deed: Indenture made 13th September 1811 between Patrick O'Flinn and Sarah his wife of the one part, and Mary Huggins, widow, of the other part. Here follows a recital that William Marshall deceased, was in his lifetime seized in fee of the several tracts and pieces of land mentioned in this deed except the premises now in dispute, designated in that deed as No. 7 : that being so seized the said Wm. Marshall died having made a will ; that by virtue of the said will the said Mary Huggins and Sarah O'Flinn, became seized of all the real ostate of their father the said Wm. Marshall, " as co-parceners in fee simple." Then follows this recital : " And whereas during the ex- istence of the said co-parcenary the said Patrick O'Flinn, by virtue of an indenture of bargain arid sale duly executed under the hands and seals of Wm. Woodcock and Letitia W T oodcock, Samuel Cars- well and Margaret Carswell, for the consideration therein mentioned became lawfully seized as of fee, of and in a certain plantation or tract of land situate, &c." (described as No. 7, being the land in question,) "which said tract of land called herein No. 7, hath ever -s-mce the purchase thereof as aforesaid, been held, considered and enjoyed by the aforesaid co-parceners as and for a part of the es- tate so as aforesaid held by them in co-parcenary. And whereas, the aforesaid co-parceners have concluded and agreed to have, hold and enjoy their respective parts and shares of and in the before mentioned lands, tenements and hereditaments, with the appurtenan- ces thenceforth in, seVeralty; it is therefore covenanted, granted and agreed by and between the said Mary Huggins and Patrick O'Flinn and Sarah his wife for themselves, their heirs, executors and administrators respectively; and they do hereby covenant, grant and agree to and with each other, their heirs and assigns respectively, that a partition and division of the same shall be and is hereby made and determined in manner and form following, to wit : Firstly, -hat the said Mary Huggins, her heirs and assigns shall and may henceforth forever hold and enjoy in severalty, all that the follow- ing described parts or shares of the estates so as aforesaid held in co- parcenary which are hereby divided off, partitioned and allotted to her the said Mary Huggins, her heirs and assigns/' (Here follows a description of the premises allotted to M. Hug- gins,) " and the said Patrick O'Flinn and Sarah his wife have granted' released and confirmed, and by these presents do grant, release and confirm all the aforesaid four" several lots, tracts or pieces of land and hereditaments with their appurtenances to the said Mary Hug- 112 SIMMONS vs. LOGAN. gins, her heirs and assigns, as and for her the said Mary Huggins' lull share, part and proportion of in and to the estate so as aforesaid heretofore held in co-parcenary. (Then follow the habendum and tenendum in the usual form with a covenant by O'Flinn and wife of special warranty against them- selves and their heirs, &c.) " Secondly. That the said Patrick O'Flinn and Sarah his wife, their heirs and assigns shall and may from henceforth have, hold, possess and enjoy in severally all the following described shares or parts of the real estates so as aforesaid held in co-parcenary which are hereby divided, partitioned and allotted to the said Patrick O'Flinn and Sarah his wife, their heirs and assigns." (Here follows a description of the premises allotted to Patrick O'Flinn and Sarah his wife, in which is included the whole of the tract No. 7, being the premises in dispute, and the same which were conveyed to Patrick O'Flinn by the aforesaid indenture of Wood- cock and others bearing date March 12, 1792.) " And the said Mary Huggins hath granted, released and confirmed, and by these presents doth grant, release and confirm unto the said Patrick O'Flinn and Sarah his wife, their heirs and assigns, the above four several lots, tracts or pieces of land, tenements and here- ditaments with their appurtenances, as and for the said Patrick O'Flinn and Sarah his wife's full. share, part and proportion of in and to all the real estate late of William Marshall, deceased, and so as aforesaid held in co-parcenary. To have and to .hold the same with every the hereditaments and appurtenances, to them the said Patrick O'Flinn and Sarah his wife, their heirs and assigns, to his, her and their only use, benefit and behoof forever." (Then follows a covenant by Mary Huggins of special warranty, &c.) This deed was executed and acknowledged in due form. The certificate df acknowledgment bears date 21st April 1812. The deed was recorded September 2, 1812. Rogers for the plff. Stated the question to be whether the legal title of Patrick O'Flinn was divested by this deed of partition. Booth for deft. The land was conveyed to Patrick O'Flinn bv Woodcock and others, but for the use of the heirs of Wm. Marshall, Mary Huggins and Sarah O'Flinn. It was always held in co-parcenary as a part of the state of Marshall by his heirs until the deed of partition. It is probable that it was bought out of the funds of that estate. In the division of 1811 it is expressly included, and was held under that division until the death of Capt. O'Flinn. He was a party to this deed. Simmons took the mortgage and subsequently bought the land with full notice of these facts, for the deed of partition was recorded. Mrs. Reynolds was the only child of O'Flinn and wife. The plff. takes title under the mortgage; hf therefore takes the in- terest of Reynolds and wife. But Reynolds and wife could not claim against this deed of partition. The property having always been held in common, recognized as such under the hand and seal of O'Flinn, would not the court after such a lapse of time presume a SIMMONS vs. LOGAN. 113 declaration of use by O'Flinn. Or does not this deed of partition itself amount to a declaration of use? Any words showing the in- tention will amount to a covenant to stand seized to a use. The consideration of a covenant to stand seized, as for natural love, &c., need not be expressed, if the court can collect it from the con- nexion of the parties, &c. 4 Cruise 134-5; 7 Coke R. 40; 4 Cruise 189 ; 2 Black. R. 1211. The effect of such a construction would be to give an estate to Patrick O'Flinn and wife, and the longest liver, per tout and not per my and to their heirs, by force of the statute of uses. An estate being to husband and wife and the longer liver and the heirs of such survivor, the husband cannot alien. 2 Cruise 508-9-10. Wales, on the same side. First. A deed of partition is binding as relates to the lands of hus- band and wife without the intervention of a trustee, differing in this respect from other deeds where a trustee must be interposed in con- veyances between husband and wife. The wife may contract in re- spect of her separate property. Fitzherb. 62; Dig. 89. Second. Where lands are held in trust, they are subject to the trust in the hands of the heirs of the trustee. The legal title to this land was not in Capt. O'Flinn after the deed of partition: that deed amounts to a declaration of use on his part. By our act of assemblv the legal estate is made to accompany the use and pass with it. This decla- ration divested O'Flinn's legal title. The admission that this land was the separate property of Mrs. O'Flinn together with Mary Huggins as heirs of Wm. Marshall, makes O'Flinn in respect to it a -tenant only in right of his wife. Third. The heirs of Patrick O'Flinn cannot recover the land against the deed of their ancestor. This deed covenants that the land shall be to O'Flinn and wife and their heirs. Yet the plff. is claiming under the heirs of O'Flinn in opposition to this deed. Coivp. 473; do. 201; 4 Burr. 2208; 8 T. Rep. 118, &c.; Reeves Dorn. Rel. 89; 3 East 15. What estate did the husband and wife take here ? We consider it the estate of the wife, Mrs. O'Flinn ; or it was an estate to O'Flinn and wife by entirety, going to the longest liver. Rogers, for plff. in reply. The rules and cases don't apply. No. 7, was no part of the es- tate of William Marshall. This is clear. It was conveyed to O'Flinn by Woodcock and others. The idea of a trust estate in this case is founded on the assumption that this property was bought with the funds of Marshall's estate, which does not appear, and which we deny. But if it had, the personal estate of Marshall, his wife's part of it, belonged to the husband absolutely, and the land purchased with it would equally belong to him. And in regard to Mrs. Hug- gins, if she could have any interest in the land so purchased, it is only an equity and is merged in the legal estate conveyed by her in the deed of partition. As to covenants in this deed, Patrick O'Flinn makes no covenant in relation to No. 7, for that part is in fact conveyed by Mrs. Huggins. Here is no partition of lands be- tween husband and wife. We submit then that the legal estate has 15 114 SIMMONS vs. LOGAN. not been divested out of Patrick O'Flinn by this deed; and that the plff. is entitled to recover. This case was argued at the conclusion of the term and held under advisement by the court. Mr. Justice Robinson delivered the opinion of the court. ROBINSON, J. Mary Huggins and Sarah O'Flinn, being entitled to a fee simple estate in several tracts or parcels of land as devisees of "VYm. Marshall their father, Patrick O'Flinn, the husband of Sarah, purchased a tract of land adjoining the same as conveyed to him in fee by deed dated the 12th day of March 1792. On the 13th day of September 1811, Patrick O'Flinn and Sarah his wife of the one part, and Mary Huggins of the other part, executed and acknowledged a deed of partition, called an indenture, to which the said Sarah was privately examined before the Chief Justice of the Supreme Court in proper form. In this deed it was recited that Mary Huggins and Sarah O'Flinn were seized of all the real estate of their father, as co- parceners in fee, and that the tract of land purchased by Patrick O'Flinn as aforesaid, had ever since the purchase thereof been held, considered and enjoyed by the said co-parceners as and for a part of the estate so as aforesaid held by them in co-parcenary. That the said co-parceners had concluded and agreed to have and hold their re- spective parts of the before mentioned lands and tenements in sev- eral ty: and it was therefore covenanted, granted and agreed by and between the said Mary Huggins and Patrick O'Flinn and Sarah his wife, for themselves and their heirs respectively, to and with each other, their heirs and assigns respectively, that a partition and division of the same should be, and was thereby made and determined in man- ner and form following, to wit: First. That the said Mary Huggins, her heirs and assigns, should and mi^ht thenceforth forever have and enjoy in several ty, the land and premises allotted to her and, after de- scribing the same, Patrick O'Flinn and Sarah his wife granted, re- leased and confirmed the same to the said Mary Huggins, her heirs and assigns, as and for her full share and proportion of the estate so as aforesaid held in co-parcenary, with a covenant of special warranty against themselves, their heirs and assigns. Secondly. That Patrick O'Flinn and Sarah his wife, their heirs and assigns, should and might from thenceforth have, hold, possess and enjoy in severalty the lands and premises allotted to them; and, after describing the same, Mary Huggins granted, released and confirmed the same to them, their heirs and assigns, as and for their full share and proportion of the real es- tate late of Wm. Marshall deceased, and so as aforesaid held in co- parcenary, with a covenant of special warranty against her and her heirs. The tract of land in dispute, was purchased by Patrick O'Flinn as before stated, and was included in the shore allotted and conveyed to him and his wife -as aforesaid. Patrick O'Flinn died intestate in the month of July 1818, leaving to survive him Sarah his wife, and one child named Elizabeth, then the wife of Alexander Reynolds. After his death Reynolds and wife entered on this tract of land ; and, being in possession, on the 26th day of June 1819, executed and ac- knowledged a mortgage deed for the same to George Simmons and others, which was recorded in time. Reynolds build a dwelling house SIMMONS vs. LOGAN. 115 on the same, and he and his wife continued to reside thereon until they died. After which Sarah O'Flinn claiming under the partition deed received the rents and profits, and acted as the owner thereof until her death, about the 8th December 1829. It was sold under the mortgage' deed of Eeynolds and wife by the sheriff of Newcastle county, and purchased by George Simmons the plff., and conveyed to him by the said sheriff. It was insisted on behalf of the deft, that this deed of partition created a covenant by Patrick O'Flinn, to stand seized of the land in dispute to the use of his wife and Mary Huggins, and that the grant *rom Mary Huggins to Patrick O'Flinn and his wife passed her moiety in fee, and that the other moiety vested in Sarah O'Flinn by i;he covenant to stand seized. It is true that if Patrick O'Flinn was seized in fee, he was the only party to this deed who could pass the es- tate or interest in this land by such a mode of conveyance. But neither in the recital of this deed, nor any other part of it, are there any words of covenant or any that can be construed to be such on the part of O'Flinn. Neither does it appear that it was his intention to convey by deed any estate from himself. In all deeds of partition, it is said to be necessary that the parties should mutually convey to each other the several estates which they are to take in severalty under the partition. That was done by the parties to this deed, and the con- sideration was the mutual recompense each took in their respective shares of the estate divided, which cannot, consistently with the re- cital in the deed of this land, having been held as part of the co-par- cenary estate of Mary and Sarah, be averred as a consideration for a covenant to stand seized contrary to the plain intention of the parties. As a covenant to stand seized, as insisted upon, it would have vested one moiety in Mary Huggins in fee, and the other in Sarah O'Flinn, and as Mary Huggins conveyed all her interest to Patrick O'Flinn and Sarah his wife in fee, then Patrick O'Flinn and Sarah his wife would have taken one moiety by entireties, which in the event of the death of Sarah before her husband would have belonged to him, whilst the other moiety would have belonged to the heirs of Sarah. This never could have been the intention of the parties. But this deed is the in- denture of all the parties, by which Mary Huggins granted the land in dispute to Patrick O'Flinn and Sarah his wife, and their heirs and assigns : to have and to hold the same to them, their heirs and assigns, to his, her and their only use, benefit and behoof forever. Patrick O'Flinn and his wife accepted this grant, and they also accepted this tract of land as a portion of their share of the lands divided. No in- terest passed in this land from Mary Huggins by her conveyance, but it operates as an estoppel against all persons claiming under Patrick O'Flinn and his heirs. They are concluded by it from claiming the lands under the deed to him of the 12th of March 1792. This view of the case is strengthened by the recital, which admits that Patrick O'Flinn had purchased this land and had become seized thereof in fee by that deed. Thus if a man takes a lease by indenture of his own land, whereof he is in actual possession, this estops him to say the lessor hath nothing in the land, for by acceptance thereof by indenture he is as perfect a lessee as if the lessor had an absolute fee. 4 Bac. Ab. 116 EAMBO vs. WIL. & PHILAD'A. TURNPIKE Co. 187. So if the disseizor by deed indented make a feoff ment in fee whereunto livery of seizin is requisite, yet the indented deed shall not suffer the livery made to work a remitter to the disseizee, but shall estop him to claim his former estate ; and the reason is, that the deed indented is the deed of both parties, and therefore the taker .as well as the giver is concluded. Co. Litt. 3G3-6. And if two make partition in a court of record, where one of them have no right, be thereby shall gain a moiety by estoppel. Id. 170 b. note (Z.) In 3 Johns. Rep. 331, it was decided in New-York, that a partition deed operates as an es- toppel as to the parties and all claiming under them. Previous to the statute of frauds in England, partition between co-parceners might be made by parol, and the acceptance of an estate under such parti- tion made an estoppel. Thus if J. S. seized of land in fee had issue two daughters, Eose a bastard, and Ann born in wedlock, and J. S. died: Rose and Ann both entered and made partition: Ann and her hcjjp were concluded forever. Co. Litt. 170, 6. If such was the ef- fect of a partition by parol, a partition made by a solemn deed makes the case much stronger. Patrick O'Flinn and Sarah his wife being but one person in law, they did not take separate estates in this land but each the entirety; after his denth the same so continued to belong to her, she being seized of the whole by estoppel. For as was said by the court in the case of Trevivan against Lawrence, 1 Salic. 276, that where an estoppel works on the interest of the land it runs with it into whose hands soever the land comes and an ejectment is maintain- able on the estoppel : it must of course be sufficient to defend in a case where the plff. must recover on the strength of his own title. Judgment must therefore be entered for the defendant. Rogers for plff. Booth and Wales for deft. RICHARD RAMBO vs. THE WTLMTNOTfW & PHILADELPHIA TURNPIKE COMPANY. Commutation not allowable for a part of this road only. CASE for not permitting plff. to commute for travelling on a part of the turnpike road. The question in this case was, whether under the 27th section of the act incorporating this turnpike company, an individual had a right to commute for the use of a part only of the road. 4 Del. L. 644 ; 5 do. 170. The plff. contended that the law allows a commutation for any one, two, or more miles of the road, at one dollar per mile; and the deft, insisted that commutation was allowable only for the use of the whole road, the amount however to be determined by the extent as well as the frequency of the travelling. The plff. had tendered the company the necessary advance on a commutation for the privilege of travelling two miles of the road at the rate of two dollars per year, which the company refused, and required three dollars for the priv- ilege of the whole road. This was proved to have been the uniform mode of commuting. JOHNSON vs. FARMERS' BANK. 117 The Court were of opinion on a construction of the acts of assembly in relation to this turnpike company, that an individual had no right to commute for the use of a part only of the road. The act of incorpo- ration provides for " an annual contract for the use of the said road," and entitles the commutant " to all the benefits of the same " for one dollar per mile ; and if this sum is considered unreasonable or dispro- portionate to the number of the commutant's family " and their use of the said road," ample provision is made for reducing the rate to a sum proportioned to the use of the road as woll in extent as the fre- quency of the travelling. No injustice, therefore, can be done to a commutant who ordinarily uses but a small portion of the road, by squiring him to contract for the privilege of the whole road ; and such seems to be the proper meaning of the law. Plaintiff nonsuited. J. A. Bayard for plff. Hamilton for deft. SAMUEL JOHXSOX vs. The FARMERS' BAXK of the STATE of DELAWARE. The cashier of a bank is a competent witness to prove the amount of a deposit in an action against the bank for it, if he be released; or perhaps without a release. The deposite book or scratcher is evidence against a dealer. When an attorney is privileged from giving evidence. A depositor must make an actual demand for his deposit before suit brought. ASSTJMPSIT. Pleas, non-assumpsit, payment, discount and the act of limitations. Issues. This was an action brought against the bank to recover the amount of a deposit alledged to have been made by plff. He had made, as he contended, a deposit in the bank of $600, and he had an entry of that amount in his bank book, which the bank alledged was a mistake. The Bank's books credited him with $400 only. The plff. produced and proved his bank book. It contained a credit under date of April 14, 1830, of a deposit in notes $600, altered to $400. He also produced a letter from Doct. Cooper the cashier, stat- ing that he had made the alteration, being convinced there was a mis- take in the original entry which was $600. The credit was in the handwriting of the cashier. The plff. here rested his case. The deft, called Doct. Cooper the cashier. Objected to. He would be liable to the bank for his negligence if there should be u recovery here, and the amount of the recovery would fix the amount of his liability. Therefore interested. The defts. then produced a release under the seal of the corporation. To this it was objected that the local board of this branch of the Far- mers' Bank could not execute a release, and could not use the corpo- rate seal for such a purpose, without a resolution of the general board of directors. No such authority was proved. The court said they oould only look to the. seal, which carried with it the sanction of the corporation, but they intimated an opinion that the cashier would be 118 JOHNSON vs. FARMERS' BANK. a competent witness without a release, from the necessity of the case. A servant of a tradesman may prove the delivery of goods and pay- ment of money without a release, and so in many other cases persons similarly situated are admitted ex necessitate. 1 Ph. Ev. 95 ; 2 Stark. 753; 4 Term Rep. 590; 1 Sir. 547. Doct. Cooper sworn. Produced the book of original entries. Ob- jected to. Bayard. The books of a corporation though evidence as against corporators, are not evidence against strangers. Rogers. A depositor or dealer is not a stranger to the corporation : and the books must be admitted from necessity. Bayard. The checks are the best evidence until given up, which is not until the book is settled. Until then the entries on the books are but secondary evidence. The court admitted the book with the oath of Doct. Cooper, proving it the book of original entries. We have admitted the cashier ex necessitate. The entries made by him as the agent or servant of the bank fall under the same rule. If he proves the book to have been regularly kept, and the entries there made correct, such entries are evi- dence. This is the scratcher or original account book of the bank. The corporation books alluded to are strictly the books containing the re- solves and acts of the board of directors or other corporate authority. Doct. Cooper. Johnson made the deposit. I entered it on the books of the bank and on his book. The entry in our book was $400 : in his $600. He brought a check of Andrew C. Gray for $406 84, and mentioned to me the amount of his intended deposit. I then sent him to the teller's side to get the check changed, and his deposit with me was in notes. If his deposit had been more than the check, I should have taken it with the money, and entered it as a deposit of checks and notes, which is our invariable rule. I infer from my sending him to the teller, that the deposit was of a part only of the check. On a set- tlement made every two days we found our books correct. On the monthly balance it was also correct. He produced a letter from plff. stating that his deposit was $600, in a check from Mr. Gray of $400, and $200 in cash. Andrew C. Gray, Esq., called. Objected to by plff. and also by himself, stating that he had been the attorney of Johnson, and that any thing he knew in relation to the matter must have been derived from this relation. Read, Jr., for deft, insisted on his examination. The privilege is that of the client and not of the attorney, and the court are to decide whether the disclosure was confidential, whether it was made to the witness as an attorney. If not, it is not protected. And the books confine it to disclosures made to an attorney in the cause. It depends upon the nature and time of the disclosure, and the fact to be proved. The object here is to prove the amount of a check given by Mr. Gray to Johnson, for money which he had collected, and also to prove that when the check was given, Johnson said be had not money enough to go to Philadelphia. This communication had no relation to any cause. JOHNSON vs. FARMERS' BANK. 119 It was a fact stated not as between attorney and client, nor in any confidence, and is not protected because the gentleman to whom it was stated happened to be an attorney. 10 Mad. 40. Bayard. Any knowledge that a man acquires from his client be- cause he is the attorney is confidential, and cannot be disclosed. At- torneys in England are on a different footing from attorneys here. There is no distinction in this state between attorneys and counsel. The characters are united. The Court required Mr. Gray to be sworn. 2 Stark. 397 ; 2 Saund. 5<36; 4 Term. Rep. 753. Andrew C. Gray, sworn. Produces the check dated 13th April 1830, for $406 84. It was for money collected by me for Johnson. Be told me he was without funds. Johnson returned to Philadelphia the 17th. Howell J. Terry sworn Is the teller of the bank. This check was presented to me on the 14th April 1830, and I cashed it. It was pre- sented by and paid to Johnson personally. Independently of this claim there is a balance now due John of $8 75. Bayard, counsel for plff. sworn at his own request. I made a demand on the president of the bank for the balance due Johnson, before suit brought. This testimony was objected to as not competent to be given in reply. The Court. A demand in the case of a claim on an individual is not necessary. The bringing a suit is a demand. But with regard to deposits in a bank the rule must be different. If a deposit be made to-day, a suit could not be immediately brought for it without demand. A demand being necessary, the proof of it constitutes a part of the plff's. case, and must be made in the opening. Testimony rejected. Mr. Bayard, to the jury on the facts. He contended that the evidence was sufficient to establish the de- posit of $600 ; and he relied upon the entry made by the cashier at tiie time of the deposit in the dealers bank book. This was the dealer's only evidence and the only security he had for the repayment of his money. He contended that on grounds of public policy and for the protection of individual rights, much exposed as they were to the power of these institutions, such an entry ought to be considered as conclusive upon the book and not be enquired into or contradicted by the testimony of the bank's officers, and he cited 4 Johnson's Reports 377, where judge Spencer said, that particular errors in a balanced account may be enquired into, but he adds, in my mind there is this exception, if an entry is made in a customer's bank book at the time of the deposit, the entry is conclusive. This distinction is a sound one and ought to be recognized. Rogers for defts. The question is not what the law ought to be but what the law is. The case in 4 Johnson does not decide the rule contended for. That v/as not the point in the cause : it was a mere obiter dictum or sug- gestion of the judge. The phrase is, "in my mind," there is this distinction. In 19 Johns, it is settled that the entrv in the dealer's 120 ST. PETER'S CHURCH rs. LARKIN'S EX'RS. book is not conclusive as against him. Why should it be conclusive against the bank ? The general principle is well settled as between in- dividuals that mistakes of this kind in the settlement of accounts may be corrected. Even if a receipt be given it is not conclusive. Further, a bond is open to inquiry on fraud or mistake; and a mistake in an award is inquirable into. A judgment on the award may be opened under particular circumstances. The rule contended for would form an exeception to all the cases. In 19 Com. L. R. it is decided that the entry on the bank books is not conclusive. 19 Johns. 115; 14 Com. L. R. 25; Angel and Ames on Corp. 133; 19 C. L. Rep. 412. As to the facts the jury cannot doubt that the deposit in this case was only $400. Read, jr. On the same side. Nothing has been advanced on the other side, but an extra-judicial opinion of judge Spencer which has been contradicted by an adjudged case in 19 Johnson's Reports. The entry on the customer's book, what it it? An acknowledgment or receipt that he is entitled to so much money from the bank. But a receipt is inquirable into and there is no reason for distinguishing this from other receipts. Bayard, in reply. This entry is an original entry and on principles of public policy ought to be conclusive. Spencer's decision is not a mere dictum but an adjudged point. It was necessary to be announced in stating the law applicable to that case. The court here suggested that this being a new question of great public importance it would be well to reserve it for the court in bank. The counsel acquiesced, but went on to the jury on the facts, and the plff. had a verdict. Whereupon a motion was made for a new trial, on the ground that the verdict was against law and evidence. The case was not brought up to the court in bank, nor was the motion for a new trial further prosecuted; the bank considering it impolitic in reference to their business generally to defend the claim further. J. A. Bayard, for plff. Rogers and Reed, Jr., for defts. THE STATE, for the use of ST. PETER'S CHURCH in Wilming- ton vs. JOHN ROGERS and THOMAS H. LABKIX, Ex'rs of WILLIAM LARKIN, deceased. What will make one liable as administrator de son tort when there is a right- ful executor. Debt on a bond. Thomas H. Larkin one of the defts., summoned. Non est inven- tus, as to Rogers. The pleas were nc unqucs executor and performance. Replica- tions and issues. ST. PETER'S CHURCH vs. LARKIN'S EX'RS. 121 This action was on a bond given by William Larkin as manager of a lottery for the benefit of St. Peter's church conditioned to ac- count for and pay over moneys received, &c. In relation to the first plea the will of William Larkin was exhibited vhich nominated Thomas H. Larkin, his son, and John Rogers, his executors. The will being proved letters testamentary were granted to Kogers alone. Rogers filed the inventory and list of debts and made a settlement before the Register showing a balance of $6,920 31. Thomas H. Larkin executed to Rogers a release for this balance. Plff. now produced evidence to charge Thomas H. Larkin as ad- ministrator de son tort; and he read the record of a suit brought on this bond against William Larkin in his lifetime. After his death a seire facias issued against Rogers and Thomas H. Larkin as his exe- cutors to make them parties. They appeared and moved to quash the writ, which was done. An alias issued against the same defts. This also was quashed. This evidence was objected to; and the Court were of opinion that it was not evidence to charge Thomas H. Larkin as an adminis- trator de son tort, as he did not take defence to the action, nor had any occasion of pleading that he was not an executor, (a) The plffs. went on to lay other testimony on this point before the jury, but the case was finally referred. Wales, Booth and Rogers, for plfL J. A. Bayard, Read, jr. and Hamilton, for deft. (a) If one sues for and receives money as executor he is chargeable as administrator de son tort. 3 Bal. 21; Went. 176; 1 Com. D. 377; Toller 37; 2 T. Rep. 97. Or pays money into court in another action. If there be a lawful executor and an executor de son tort, a creditor may sue them jointly or severally. Went. 178. If previously to action brought he pay over the money to the rightful executor that will be a good defence. If he plead ne unques executor and it be found against him as it is a false plea he shall be charged with the whole debt de bonus propriis. If he plead plene administravit he shall only be charged with the assets that come to his hands. 2 T. R. 97, 1()0; 3 Id. 587; 1 Salk. 313; Went. 180; 3 Bac. 25; 1 Com. 379. What acts make a person liable is a question of law; whether proved or not is for the consideration of the jury. 2 Term. Rep. 97. Regularly there cannot be an administrator de son tort when there is a rightful executor or administrator; but although there be a rightful ex- ecutor who administered, yet if a stranger take the deceased's goods and claiming to be the executor, pays or receives debts or pays legacies he becomes administrator de son tort. 3 Bac. 22; 1 Stark Rep. 31. The agent of an executor proved a debt before the commissioners of bankrupt as executor. He was held liable as administrator de son tort. 4 Maule & Selw. 177. If one as agent of an executor take possession of the goods of the de- ceased he is not chargeable as executor de son tort. Peake N. P. Ca. 86; 4 M. & 8. 175; 1 Stark. 31. (Doubtful in the extent laid down.) See also 12 Modern 441. 16 122 CRAWFORD & Co. vs. SLACK. WILLIAM B. CRAWFORD & Co. vs. LEWIS SLACK. A deed takes effect by the delivery. COVENANT. Pleas. First. That deft, made no covenant with plff. Second. That the supposed covenant in the narr. mentioned was made with Thomas Whiteman the constable. Third. That said Whiteman seized in execution certain goods of JST. Coggins and that deft, under- took to be surety to said Whiteman for the forth-coming of said goods and that he had performed his undertaking with said Whiteman. Reps, and issues. The case was this. Constable Whiteman having in his hands seve- ral executions against Nathan Coggins at the suit of William B. Craw- ford & Co., and being about to seize the goods of Coggins, an arrange- ment was entered into that the deft. Slack should be security for their production at a future day in order to be levied on. The deft, thereupon executed the following paper. The agreement was made and the paper executed in the presence of Crawford the plff., but it did not distinctly appear whether the agreement was made with Craw- ford or with the constable. The paper was delivered to the constable. It was as follows : " This is to certify that I am security for the forth-coming of all the. goods and chattels of Nathan Coggins, on Monday the 27th of June next 1831 ; as witness my hand and seal this 24th of June 1831. Lewis Slack [Seal.] Witness A. Bradley." Endorsed "Demanded the within goods of Lewis Slack this 27 June 1831, and were not produced. Thomas Whiteman. Before A. Bradley. Wm. B. Crawford & Co." On this instrument this suit was brought and the narr. counted on a covenant with plff. The deft, objected to the reading of this paper in evidence as it did not support the narr. being a covenant with the constable. The plff. contended it was a covenant with him. By the Court. The constable was entitled to the possession of the goods if any one: they must have been delivered to him if pro- duced, and not to the plff. The endorsement shows that he made the demand and the plff. is a witness to it. From these circumstances it would seem that the covenant was in fact with the constable. It is doubtful whether we can go put of the deed at all to show to whom it was given; but, if we can, it must be governed by the delivery which was to the constable. Theobald on Principal and Surety 20. Paper rejected and plff. nonsuited. Rogers, for plff. Booth, for deft. BROOKS vs. MORGAN. 123 JOHN POTTER, sen., vs. JOHN HYNDMAN. Indentures executed by the Orphans' Court of Maryland not sufficient evidence without the law authorizing such court to bind. ACTION on the case for harboring an apprentice. Plea. Not guilty. Issue. To prove the plff's. right to the service of the apprentice the plff. gave in evidence an indenture of apprenticeship executed by the Orphans' Court of the state of Maryland for the city of Baltimore, binding the boy to plff. as a poor child. Bayard, for plff. moved a nonsuit. The action is for harboring an apprentice. The plea puts in issue the whole declaration, of course denies the plff's right to the servi- ces of the boy. He produces an indenture by the Orphans' Court of Maryland. By what authority did this court bind him? Plff. must either show a common law right; or, if he goes upon a statutory right, he must show the statute. The foreign law on this subject is matter of evidence. The authority to bind a boy must depend on statutory pro- visions. It is not a common law right; at common law the father is entitled to the services of the boy. I don't say the record is not evi- dence, but that the law authorizing the binding must be shewn. Hamilton, for the plff. insisted that the action of the court in Maryland on this subject was entitled to full credit and their juris- diction would be implied. By the Court. This is not the common case of a judgment re- covered in the courts of another state. It is a binding by the Or- phans' Court acting under a peculiar jurisdiction given by statute. That statute ought to be given in evidence that the court may see it warrants the proceeding. 1 Ch. PI. 223; Stark. 569. (Bed Quere.) Judgment of nonsuit. Hamilton, for plff. Bayard, for deft. CHRISTOPHER BROOKS vs. DAVID MORGAN. The words " value received " sufficient statement of a consideration in a prom- ise to pay the debt of another. When the guarantor of a note is entitled' to notice of his principal's default. CASE. Plea. Non assumpst. Issue. Narr. The first count was on a promissory note from David Mor- gan to Christopher Brooks for $71, payable in six months and dated 11 February 1827. Second count, indebitatus assumpsit for $71, the price of a horse and saddle. Third count. On a note, Thomas Stevens to Christopher Brooks for $71, and the guarantee of David Morgan in consideration of the sale of a horse and saddle by Brooks to Morgan. Fourth count. That Morgan being indebted to Brooks procured Stevens to give his note to Brooks and in consideration of his indebtedness guaranteed the payment of this note. 124 BROOKS vs. MORGAN. The note was as follows: " Sixty days after date I promise to pay Christopher Brooks $71, for value received, with interest from the date hereof. February 14, 1827. (Signed) Thomas Stevens." Endorsed thus: " Six months after date I do hereby guarantee and secure to Chris- topher Brooks the payment of the within note, for value received. (Signed) David Morgan." The plff. proved the admission of Morgan that he had brought a horse and saddle of Brooks for $71. He also produced the record of the discharge of Thomas Stevens as an insolvent debtor on the 30 March 1827, on which occasion Morgan was returned as a creditor. Rodney, for the deft, contended That the plff. ought to have proved a demand on Stevens and notice to the deft. That the insolvency of Stevens was not an excuse for the want of notice. That this guarantee was within the statute of frauds and without consideration. In a promise to pay the debt of another the consideration of the agreement must be expressed in writing. The legal meaning of the word " agreement " embraces the considera- tion as well as the promise. The words " value received " do not con- stitute a statement of the consideration of the agreement. 2 H. Bl. 609; 1 Barn. & Ores. 11; 8 Com. Law Eep. 8; 9 Mass. Rep. 316; 2 Doug. 516 ; Digest 89 ; 5 East 110. Rogers for plff. The real nature of this transaction is that Stevens was not indebted to Brooks but was indebted to Morgan, and Morgan being indebted to Brooks, Stevens gives his note to Brooks in payment of his debt to Morgan, which note Morgan guarantees. The evidence shows that Morgan bought a horse and saddle of Brooks for the sum embraced in this note. It is therefore not an agreement to pay the debt of an- other. But, if treated as such, the agreement is in writing and the consideration of it is sufficiently expressed. " For value .received." Moreover it is a promissory note, which legally imports a considera- tion. The demand and notice was not necessary. It is not the case of an indorser whose undertaking is merely a conditional one. This is a general and absolute undertaking. Chief Justice Clayton charged the jury. First. It is contended that this is a guarantee by the defendant of a note from Stevens to plff. Generally speaking, the guarantor has a right to require that payment should be demanded of the principal and to be notified of such demand. An exception is where there is an insolvency of the original promissor. Morgan had notice of the insolvency of Stevens which was before the note was due. Second. Is this a collateral undertaking? In a promise to pay the debt of another, the consideration of the promise as well as the agree- ment itself, must be in writing. The case cited from East is right. But here it is stated that this guarantee was for " value received " and this is a sufficient statement of the consideration, at least to throw the proof of want of consideration on the other side. Parol evidence ERWIN vs. LAMBORN. 125 might be admitted of the nature of this consideration. Theobald on Prin. & Surety 8. The plff. had a verdict for $95 70. Rogers, for plff. Rodney, for deft. JOHX EKWIX vs. CYRUS LAMBORN. The guarantor of a note is entitled to notice of his principal's default to pay it. Insolvency of the principal, excuses the notice. The party may write over a blank indorsement any promise consistent with the nature of the transaction. CASE. Pleas, non assumpsit; payment and discount; replications and issues. The action was brought on the following note and indorsement. Wilmington., 26th April 1825. $462 75 Sixty days after date, I promise to pay to John Erwin or order $462 75 without defalcation, for value received. (Signed) ELI LAMBORN. This note was indorsed in blank by Cyrus Lamborn, and plff. wrote over this blank indorsement these words : " In case the debt within mentioned is not paid by Eli Lamborn within named, at the time it is payable, I promise to pay the same to John Erwin. 26th April 1825." The proof in the cause established that Eli Lamborn being indebted to Erwin, drew his note dated 24th Feb. 1825, at sixty days in favor of Cyrus Lamborn, which Cyrus indorsed to Erwin. At the maturity of this note it was cancelled, and the present note given. It was also proved that Eli Lamborn died about September 1825, and that his estate was insolvent. Hamilton for the plff. contended. That the alteration in the form of the seciirity when this note was substituted for the first was a fraud on Erwin. That being made payable to Erwin and indorsed by Cyrus Lamborn it was not nego- ciable, nor did Cyrus stand in the character of an indorser, but in that of a general guarantor. This is the effect of the indorsement, and where a person puts his name on the back of a note not nego- ciable or payable to bearer, the holder may write over this blank in- dorsement a guarantee or promise to pay, and the guarantor is equal- ly bound with the maker, being a joint promissor. This may be done either before or at the trial. 13 Johns. Rep. 175; 11 Mass. Rep. 436, 440; 9 ditto 316; 2 Doug. 516. He also cited the case of Henry and Marim vs. Joseph Shallcross, where this point was decided in our Court of Appeals on appeal from the Supreme Court, 1799. Here the note was drawn by Thomas Shallcross to plffs., and indorsed in blank by deft. And the court said it amounted to a general engagement to be Responsible in case of non- payment by the maker. 126 STATE USE OF JEWELL vs. PORTER. Latimer and Read, Jr., for deft., insisted that this was only a con- ditional engagement, and did not warrant the agreement which plff. had written over deft's. signature. A negociable note was given in the first place from E. Lamborn to C. Lamborn, and by him indorsed to Erwin. The renewal of the note was the same transaction, but it was made payable to Erwin probably by mistake. No evidence that the parties intended to change the nature of the security, or that C. Lam- born consented to change his responsibility as an indorser for that of a guarantor generally. As an indorser he was entitled to demand and notice, for the want of which he is discharged. The privilege of writ- ing over a blank indorsement is confined to negociable paper, and the engagement overwritten must always be consistent with the nature of the transaction. This is a violation of the original contract. 14 Mass. Rep. 279 ; 5 Serg. & Rawle 363 ; 3 Bin. 126 ; 8 Com. Law Rep. 8. But admitting deft, to stand in the condition of a guarantor, the plff. should have proved a demand on Eli and notice to him. If in- solvency excuses the demand and notice it must be proved. It is not here proved. The proof of an insolvency in September 1825 does not establish an insolvency in June 1825, when this note fell due. Hamilton, for plff. replied, that even an indorser was not entitled to notice when the drawer was insolvent; and it was not necessary to prove an actual insolvency. The privilege of writing over a blank in- dorsement is not confined to negociable paper. 8 Com. Law Rep. 8 Chief Justice Clayton charged the jury to this effect : That if they thought this note a continuation of the old transaction, and the parties did not intend to change the nature of the security, but that the note was made payable to Erwin by mistake, the plff. could not recover, as no demand and notice were proved. That if the jury should think the parties intended to change the nature of the security, the effect of this note and indorsement would be. to make. Cyrus Lamborn a general surety or guarantor, and the plff. would be entitled to write over his blank indorsement a promise consistent with this new form of obligation. But as a guarantor deft, was entitled to notice of Eli Lamborn's default to pay unless an insolvency is proved, which will excuse the want of notice. Brooks vs. Morgan, ante 123. The deft, had a verdict. Hamilton for plff. Latimer and Read, Jr., for deft. STATE, use of K. JEWELL vs. ROBERT PORTER. A constable is bound to use reasonable diligence in the execution of process. What is due diligence in making a levy. DEBT on constable's bond. This was an action against the deft, as surety in a constable's bond for the negligence of the constable. The plff. had obtained a judg- EHODES vs. SILVERS. 127 inent against J. F. Clement for $50, and he issued an execution on the 9th October 1829, and delivered it to J. C. Allen constable, who neglected to levy it until the 3rd of November. On the 2nd Nov. an execution issued against Clement at the suit of John Gordon, which took all his property, and Jewell lost his debt. The only question was, whether the constable had used due dili- gence in levying this execution. The Court charged the jury, That it was the duty of the constable to levy on execution process placed in his hands as speedily as he reasonably can do so: and if from his neglect the debt is lost, he and he sureties are liable. What would constitute reasonable diligence must depend on the circum- stances of each case. That the jury must apply the proof to this rule, and say if the constable in this case did " well and diligently " execute this process. The jury found a verdict for the defendant ; but the court, without hesitation, set it aside and granted a new trial. Bayard for plff. Wales for deft. SAMUEL STEVENS vs. JOHN A. MONGES. Assumpsit will lie for a fee due to counsel. ASSUMPSIT for a counsel fee. Plea, non-assumpsit ; issue. The question was raised in this case whether an action would lie for a fee due to counsel. The Court said they had no doubt that counsel could in this state sue for and recover their fees. It has been the invariable practice to treat them as legal demands, though no case has occurred in which the question has been expressly decided. We recognize the payment of such fees by executors, administrators and guardians, whenever they come up incidentally: and the Chancellor frequently makes a direct allowance of them. In England physicians stand on the same ground with counsel, their fees being treated as honoraria, yet phy- sicians' bills have always been sued on here even before the passage of our act of assembly which recognizes them as legal demands. The counsel mentioned a case lately decided by Judge Hall in the District Court of this district, where Mr. Wirt sued for a fee and re- covered. Verdict for plff. Bayard for plff. Read, Jr., for deft. GEOEGE EHODES vs. WILLIAM SILVEES. malicious prosecution plff. must prove the prosecuti want of probable cause and malice of deft. CASE, for malicious prosecution. Plea, non cul ; issue. la case for malicious prosecution plff. must prove the prosecution, acquittal, want of probable cause and malice of deft. 128 BENNINGTON vs. PARKIN'S ADM'R. This was an action for a malicious prosecution instituted by the deft, against the plff. before justice Faris, for a violation of the Sab- bath day. Upon this charge the deft, obtained a state's process- against Rhodes, and had him arrested \mder circumstances of great outrage. The charge was founded upon the act of assembly of this state. Digest 483. Harrington Justice, charged the jury that it was incumbent on the plff. to prove the prosecution commenced and conducted at the instiga- tion of the deft. ; the termination of that prosecution in favor of the accused; the want of probable cause for the prosecution, and the malicious motive of the deft. That the damages were in the discretion of the jury, and should be proportioned to the damage the plff. had sustained, and the aggrava- tion of the case by the very violent means made use of in the arrest and detention of the accused. Some legal damage must be made out ; but the arrest of the person, or his detention however short, and the expense incurred by the accused in consequence of the accusation,, should be considered in fixing the amount of the damages. The jury gave a verdict for $122 00 JOHN BENNINGTON vs JOHN PARKIN'S Adm'r. A promise by an administrator wilt revive a debt barred by limitation. Surety in an administration bond is a witness in an action against the ad- ministrator, where there is no suggestion of a devastavit. CASE. Pleas, non-assumpsit, payment and discount, and the act of limitations ; issues. Bennington and Parkin were both Englishmen. Bennington emi- grated to this country in 1819, and Parkin accompanied him to Liver- pool, from which port he sailed. He had a sum of 400 deposited in. the Burlington banking house, drawing an interest of 5 per cent. On embarking he placed the certificate of deposit in Parkin's hands, to- be delivered to a certain Wm. Robson, with directions to let the money remain in bank until he should write to Robson for it. He also sent by Parkin a check to enable Robson to draw the money when he should write to him for it. Parkin, instead of delivering the certificate and check to Robson, drew the money out of bank. He also afterwards, came to this country and died, leaving a widow the present deft., wha is administratrix. After the death of her husband Mrs. Parkin re- turned to England, where the plff. followed her, and obtained from Parkin's executors in England, payment of 100 in part of his claim. Mrs. Parkin returned to America; the plff . followed shortly after, and now brought this suit for the balance. There had been repeated ac- knowledgments of the debt in Parkin's lifetime, and he always prom- ised payment. In 1820 Parkin gave Bennington a letter to .Richard Lovel in England, directing Lovel to deliver Bennington the money and securities which were left in his hands to pay the 400, as per ac- count sent from Liverpool by his brother Wm. Parkin. He died" BENNIN&TON vs. PARKIN'S ADM'R. 129 in April 1826. After his death Mrs. Parkin wrote to the executors in England to pay Bennington, but they had not funds beyond the 100, which they paid. In May 1830, Mrs. Parkin entered into a refe- rence with Bennington. She agreed before the referees to pay the balance of 300, but refused to pay any interest. The referees could not agree on a report. This suit was brought in May 1830. Bayard for deft, moved a nonsuit, on the ground that the plff. had himself shown a case barred by the act of limitations. The old limitation act of 1792, 2 Del. Laws 1033, and not that of 1829, applies to this case. The latter repeals the former law " ex- cept so far as shall concern any action, cause of action or matter which now is or on or before the 1st day of September next shall be barred according to the form or effect of the aforesaid acts or sections, or either of them:" 7 Del. Laws 271; Digest 397. Before September 1829 this action was barred; and it cannot be revived by the promise of the administratrix. It was decided in the case of Sykes vs. Cooper's Ex'r. in Kent county, that the admission of an administrator, could not take a case out of the statute, and such has been the uniform de- cisions of our courts. Rogers for plff. This is purely a case of trust to which the act of limitations does not apply. The check was placed in Parkin's hands in trust, to be delivered to Wm. Robson. It is a case too of express trust admitted by Parkin. But the law of 1829 and not that of 1792, applies to this case. This suit was commenced in 1830. The rule that a promise by an administrator would not take a case out of the act of limitations was founded in the peculiar wording of the act of 1792. It is different from the English law, and contrary to what was understood to be the law here before the passing of that act. But' the act of 1829 is dif- ferent, and as we contend restores the law to what it was before. The effect of the old act in this respect was only incidental; its repeal must leave the law as it stood before. Bayard, in reply. Where a party sues in a court of law he must be bound by the rules of law. Courts of law know nothing about trusts as such. If this be a case of trust the remedy is in equity and not here. Denies the ap- plication of the law of 1829. By the Court. It has heretofore been decided, under the existing laws of the state, that the promise of an administrator would not take a case out of the statute of limitations. This decision was founded on a construction of the 5th section of the act of 1792, which prohibits an administrator from paving a debt barred by limitation, the courts held that it would be an evasion of this section to allow the promise of an administrator, to revive a debt which he could not legally pav. That law is repealed ; and we apprehend that as the law now stands, the promise of an administrator may take a case out of the statute. A promise of this administratrix has been proved since the repeal of that act, and the question is what is the effect of that promise at the time it is made ? It is of the same force as i'f made by the intestate 17 130 BENNINGTON vs. PARKIN'S ADM'R. himself. Thus, whether the act of 1792 or of 1829 applies to this case as it rewards the limitation of action it is totally immaterial, if the general law gives to the promise of an administratrix the effect of reviving a debt. Being of opinion that it has this effect we refuse the nonsuit. Whereupon an exception was prayed and granted. The deft, then went on with his case and called Christopher Bain- ton; who was objected to, he being the surety of the deft, in her ad- ministration bond. Rogers. There is no plea of plene administravit, and if there be a recovery in this case, this witness is personally responsible as su- rety whether there be assets or not. If the assets have been wasted he will undoubtedly be liable. Phil. Evid. 49; 3 Com. Law Rep. 139, 235. Bayard. The administratrix herself would be liable for any re- covery in this action, whether there be assets or not, but not so the surety, unless a devastavit be shown. The court will not presume a devastavit. This is not like the case of special bail the witness cannot be affected by the result of this suit. 7 Term Rep. 6. The Court. The witness must be sworn. He is not directly in- terested in the event of this suit, nor will a decision here against the deft, fix any liability on the part of the surety. He is only bound for the application of the assets received. Whether they be applied to this claim or that, is of no importance to him. The question of a devastavit is not to be decided in this case. It is true, that the ver- dict in this cause for plff. would fix the administratrix to the amount, whether there be assets or not, there being no plea of plene adminis- travit. It amounts to an admission of assets on her part; but it does not preclude the surety ; and, in an action on the administration bond, he may dispute the assets. The rule is that the witness must be in- terested in the event of the suit or in the record; that is, where the record may be given in evidence in another suit either for or against him. Otherwise he is a competent witness. Judge Robinson charged the jury: First. That the plff.'s action was not barred by limitation. Sec- ond. That if the certificate of deposit was placed in Parkin's hands to deliver to Robson and he failed to do so, it was a breach of trust; and, if he drew the money, he was liable to the plff. in this action. Third. That the delay or negligence of Bennington to present the order given to him in 1820 by Parkin on Richard Lovel, was not a bar to this suit as there were no funds in Lovel's hands, and the claim had been ratified by subseqiient promises. That was not a bill of exchange, nor partook of any of the qualities of a bill of exchange. It was a mere letter of advice, but available as an acknowledgment of the debt. Fourth. That the interest and damages were in the discretion of the jury. The plff. had a verdict for $2,645 16. Rogers, for plff. J. A. Bayard, for deft. tdSf~Ftde post, page. SUPERIOR COURT, SPK1NG SESSIONS, 1833. BENJAMIN FOOKS vs. WILLIAM D. WAPLES. in an action on the case for recommending a person as fit to be trusted when in fact he was insolvent, the knowledge of his insolvency as well as the fraudulent intent, must be proved. CAPIAS CASE. Narr. Plea, Not guilty. Issue. This action was brought against Wm. D. Waples for recommend- ing a certain Thomas E. Waggoman to plff., as a person fit to be trusted when in fact he was insolvent. Plff. on this recommenda- tion trusted him for a gig and harness, the price of which he lost. The plff. is a gig and harness maker in Sussex county. In May 1830, a stranger presented himself with the following letter of intro- duction : Millsl orough, Del., May 13, 1830. Mr. Benjamin Fooks. Dear Sir, Allow me to introduce to you Mr. Waggoman, of the city of Washington, as a gentleman in whom you may rely. I do not hesitate to say that Mr. Waggoman will promptly comply with any engagements that he may enter into with you. He will explain to you the nature of his calling on you, &c. Any attention you can give him will be thankfully received by your friend, &c. WM. D. WAPLES. On this recommendation Fooks sold Waggoman a gig and harness on a credit, and took his note for the price. The testimony showed that Thomas E. Waggoman was insolvent in 1830, and generally known about Washington to be so, though he had formerly been a man of fortune and made a great show. He is now dead and Fooks has made sundry ineffectual attempts to collect the note. The plff. closed; and J. M. Clayton for deft., moved a nonsuit on these grounds: First. That plff. had not proved any recommendation of Thomas E. Wag- goman. The identity between the Thomas E. Waggoman who is proved to have been insolvent, and the Mr. Waggoman mentioned in the letter, is not established. It may be that the person recom- mended was the present senator in congress, Mr. Waggoman, who 132 FOOKS vs. WAPLES. is the brother of Thomas E. Waggoman. Second. The plff. has not shown the fraudulent intention of Waples, which is the gist of this action. Every count alledges the fact " falsely and fraudulently " and must so alledge, for without a fraudulent intent there is no cause of action. 2 East 92, Haycraft vs. Creasy. There is no proof in the case whatever of such intent; and this must appear. E. D. Cullen, in support of the motion : Fraud cannot be presumed, but must be proved. 2 East 92. Grose J. There must be evidence of fraud. A misrepresentation without interest or fraud will not support an action. 7 Cranch 69, 96. The narr alledges that Waples recommended Waggoman knowing him to be insolvent; there is no evidence here whatever of the scienter, and the plff. must fail for want of it. Mr. Attorney General Frame: What is the plff. bound to prove? First, that deft, recommended Thos. E. Waggoman to the plff. as a man fit to be trusted; secondly, with a fraudulent intent, and thirdly, with a knowledge that the recommendation was false. On this assumption the declaration states that he recommended Thos. E. Waggoman; the letter introduces and recommends a Mr. Waggoman, and there is no evidence to con- nect them. It is very true that the plff. was not bound to set out the recommendation by its tenor, but this is matter of fact, and however set out, it must be proved that the deft, recommended the person al- ledged. Second. The fraudulent intent must be proved, and thirdly, the scienter must also be proved. The deft, must know the falsity of his statement and make it with a view to defraud. Fraud is the gist of the action. 1 Selw. N. P. 483; Salk. 211; 2 Chitty Plead. 317; 2 Saund. Plead, and Evid. 527. Prior to the case of Pasley and Freeman, the courts never charged any one not a party to the contract. In that case, it was extended to the fraudulent misrepresentations of a third person know- ing the falsity of his statement. 3 Term Rep. 56. It is necessary to establish both falsity and fraud, i. e., the knowledge of the falsity; it must appear that deft, intended to impose on the plff. 1 Harrison's Digest 297. There is not a particle of proof here that Waples designed to cheat Fooks or knew of the insolvency of Wag- goman. E. Wootten and J. A. Bayard, for plff. Questions of fact, are for the jury : of law, for the court. This is a question of fact. The declaration sets out the letter bv substance and not by its tenor. That a certain individual named Thomas E. Waggoman was introduced, &c. The letter speaks of Mr. Waggo- man, and the identity may be proved aliunde. It is for the jury to gay on the evidence if this has been proved. Second. The fraud and the scienter are also to be established by evidence, and found by the jury. It is fraud in fact, not legal fraud ; and it is for the jurv to say whether we have proved it. In Haycraft and Creasy, 2 East 92, the court left the casf to the jurv solely in the falsity of the rep- resentations. It was on this ground that the judgment was arrested. The case in Craned was in equity, and can't prove that a court of FOOKS vs. WAPLES. 133 law and not the jury, are to try the facts of the case. Here was a man whose circumstances were notoriously insolvent; known person- ally to Waples but not to the plff. Waples introduces and recom- mends him as a person entitled to credit. Is not this evidence of fraud? In the cases cited, the apparent circumstances of the party recommended supported the recommendation, and there was reason in requiring proof that he knew his real circumstances were differ- ent. A man who recommends another is presumed to know at least his ostensible circumstances; if these are in fact bad it is evidence of fraud, which the jury ought to try. The recommendation supposes a personal knowledge; and a personal knowledge involves a knowl- edge of apparent circumstances and standing. Fraud has been pre- sumed from the suppression of a fact within the knowledge of the party. And it can only be made out by circumstances which the jury ought to weigh. We therefore resist the motion. 4 East 318. J. M. Clayton, for deft, in reply. IThe plff. must prove fraud in fact : both the falsity and the scien- ter. The fraud is a conclusion of law on the facts. 2 Starkie 468. First. The narr only sets out substance; true, but that substance is that Waples recommended Thos. E. Waggoman. Is this proved? That's the question. We don't deny that the Mr. Waggoman of the letter may be connected with the Thos. E. Waggoman of the narr by evidence, but where is that evidence. If there be no evi- dence of their identity, we are entitled to a nonsuit. Second. Is the scienter proved? The fraud is founded upon the scienter but does not necessarily arise out of it; therefore both must be shown. What evidence has been offered for this purpose? The gentleman says the letter itself proves the knowledge. That is to say, you prove the knowledge of insolvency from a representation of solvency. If this be true, all the law requiring proof of a scienter is folly. In the case from Cranch, the recommendation is very like this, yet it did not occur to Chief Justice Marshall, that the letter proved the knowl- edge. And the scienter of the real as well as the ostensible circum- stances must be brought home to the deft. Here was a man resid- ing in Washington city ; a public officer ; who had been as it is proved not only apparently but really in affluent circumstances; known as such by Col. Waples; he becomes insolvent and here at a distance from home, where a knowledge of his reverse of fortune had not reached, he applies to Col. Waples to introduce him to a coachmaker. The doing so may have been incautious, imprudent; but are you to infer that Waples was guilty of a fraud ; and to make out this fraudu- lent intent, to infer also, that he knew of the changed fortunes of this man whom he no doubt innocently, though perhaps imprudently, recommended ? Such is not the doctrine of the .books. The fraud must be proved and the knowledge must be proved. The case in East goes on the same principle : fraud was proved in that case, and gross fraud. The deft, stated that the person recommended, had a large credit in a certain house, without stating the fact, which he knew, that this credit was founded on a previous deposit of goods to treble the amount. Mr. .Bayard argues from the case in 2 East, because the court said they would arrest the judgment, and send the case to another 134 WAPLES vs. DERRICKSON. jury ; that they would not have granted a nonsuit. How could they do otherwise ? After verdict, the case must- go to another trial if the judgment is arrested ; but it does not follow that the court would not order a nonsuit in the second trial, on the same state of facts. It is like every other case of a nonsuit for not proving a material point, if there be no proof of it the court will interfere. By the Court. In this case it was incumbent on the plff. to prove that the deft, made a false representation of the solvency of Waggo- man, knowing it to be false, and with the intent to deceive and de- fraud the plff. The knowledge must be proved. It has been argued that the fact of the recommendation proves a knowledge of the cir- cumstances. We can't agree to this conclusion. It is at best but a mere inference and too unsubstantial as a foundation for the fraud that is to be built upon it. The scienter ought to be proved aliunde. The evidence in the cause is that Waples lived in this county and Waggoman in Washington city. Some of the depositions of wit- nesses residing in Washington hesitate about Waggoman's insolvency in 1830, though the proof does establish this; yet there is not a tittle of evidence produced to show that Waples knew Waggoman's circumstances either real or apparent. It being incumbent on the plff. to prove this knowledge he must be nonsuited. Judgment of nonsuit. Wootten and Bayard, for plff. Cullen, Frame and Clayton, for deft. STATE use of JOHN ABBOTT and WIFE vs. LEVIN STUART, administrator of JEHU STOCKLEY. Infancy must be specially replied to a plea of the act of limitations. DEBT on a testamentary bond. Pleas " Plene administravit ; performance, and the act of limita- tions." Eeplications and issues. The plff. offered to prove the infancy of Mrs. Abbott to rebut the plea of the statute of limitations, but it was objected to and insisted that he ought to have replied the infancy. The Court said that where a party relied on infancy to prevent the operation of the statute, he must reply it so as to give the other side notice. The plff. suffered nonsuit. Layton, for plff. Cullen, for deft. WILLIAM P. WAPLES vs. EPHRAIM DERRICKSON. To declare in a different form of action from that in which the bail is taken- releases the bail. FOREIGN attachment case. A rule was obtained in this case to show cause why an exoneretur WAPLES' vs. CLARK'S ADM'K. 135 should not be entered on the bail piece on the ground that the plff. had declared in a different form of action from that in which bail was entered. ,The bail was taken in an attachment case; the declaration was in debt. The plff.'s counsel referred to our act of assembly requiring the deft, in an attachment to put in bail to answer any action that the plff. might bring against him ; and insisted that this act controlled the English rule, if such a rule existed in the English practice. On the other side it was said that the attachment was merely a substitute for personal services with process, and the rights of bail the same as at common law. The court directed the exoneretur to be entered. Lawton and Frame, for plff. Cullen and Bayard, for deft. ISAAC WAPLES, surviving obligee of THOMAS C. WAPLES and ISAAC WAPLES use of WILLIAM D. WAPLES vs. ISAAC CLOWS and THOMAS DRAPER, adm'rs. of ALETTA CLARK, deceased. An attorney is not competent to contradict his own entry of satisfaction on a judgment; and deny that the money was paid. JUDGMENT opened. Isaac Clows became the guardian of John M. Wolfe and Eliza R. Wolfe and gave bond with Thomas .C. Waples and John Waples (the plffs.) as his sureties. Isaac Clows with Aletta Clark gave to the said Thomas C. Waples and Isaac Waples sureties as afsd. a bond with warrant of attorney to confess judgment in the sum of $8,000 ; to in- demnify the said sureties against their said suretyship. Judgment was confessed on this bond 11 October 1814, for $8,000; John M. Wolfe sued the guardian bond afsd. and recovered judgment against the said sureties on 11 Oct. 1827 for $688 90. On 21 Jan. 1828, this judgment was entered "satisfied" by Edward L. Wells, attor- ney for J. M. Wolfe. Thomas C. Waples and Isaac Waples sued out a scire facias on this judgment of $8,000, entered as afsd. on the bond of indemnity and on the 21 January 1830 recovered judgment by default which they endorsed for $792 93 and they now claim that sum with interest. This judgment was opened on the applica- tion of the def ts. and the question on this trial was to what extent the said sureties had been damnified. The defts counsel now called Edward L. Wells the attorney of John M. Wolfe to prove that he had not received the whole amount of Wolfe's judgment for which he had so entered satisfaction. This was objected to, and the court said they would not allow Mr. Wells the attorney, to contradict his entry on the record; but they said i the deft, could prove aliunde that the Waples' did not pay the whole amount of that judgment to John M. Wolfe they might do it and by parol. The question here is to what extent have plffs. been damni- fied, that is how much money have they been compelled to pay on 136 GRIFFITH A.ND WIFE vs. JOHNSON'S ADM'R. account of their suretyship. The entry of satisfaction on this judg- ment shows prima facie that plffs. paid the amount of it; this may be rebutted but not by Wolfe's attorney who entered the satisfac- tion. The plff. had a verdict for $926 12. WILLIAM C. GRIFFITH and WIFE vs. WILLIAM JOHNSON, administrator of JAMES JOHNSON, deceased. Books of assessment are not evidence to prove property or value, except as between the county and the assessed. ISSUE from Orphans' Court. The issue was to enquire and ascertain whether the sum of $438 64 Mrs. Griffith's share of the balance due from Joseph Sudler the ex- ecutor of Nathan Willey to the said James Johnson as guardian of the said Elizabeth Griffith " was lost by the wilful default or negli- gence of James Johnson the late guardian of the said Elizabeth" or whether any part, &c., was so lost. In order to prove Sudler's ability to pay at a certain period, Lay- ton, for plff., offered in evidence the record of the assessment of Sudler's real and personal estate. This was objected to on the ground that the assessment was res inter alias acta and not binding on Johnson; and also because it proved nothing. The public assess- ment is only valid as between the county and the person assessed. It can't prove property, nor value. A life estate is assessed as high as a fee simple ; lands held in trust are assessed to the trustee ; and fre- quently lands owned and held by one person will stand for years assessed in the name of another, a former owner. 2 Stark. 1330. The record was not admitted. The plff also offered a list of judgments for and against Joseph Sudler, made out and certified by the prothonotary. Objected to. Not the copy of a record; does not profess to be any such thing. Mere minutes or extracts from the records containing the names of the parties; amounts, &c. The Court rejected the evidence, but remarked if these abstracts were objected to it would be productive of much unnecessary ex- pense in furnishing copies. This was admitted but it was said that it must be left as heretofore to the agreement of the parties. Cases might occur where great injustice would be done by the production of these short memorandums if as a general rule they were regarded as competent evidence. The case went on to the jury who finally found a verdict in the negative of the issue. Layton, for plff. Clayton, Bayard and Frame, for deft. M'CAULLEY vs. M'CAULLEY. 137 PKISCILLA M'CAULLEY vs. ROBERT M. M'CAULLEY. The court will entertain a suit for divorce though the defendant appears and does not deny the petition. PETITION for divorce. The petition stated that the parties were married in February 18 1G. That the petitioner at the time of her marriage owned about 500 acres of land and had about $500 in cash. That the respondent has for fourteen years past treated the petitioner with extreme cruelty, frequently beating her so as to endanger her life. That he has in- troduced into his house an abandoned woman with whom he lives in open adultery; that he had taken her to his bed in the presence of the petitioner and of her children, compelling her and them to lie on the floor; that he has finally driven petitioner from her home and she is now dependent on charity; and that he is doing his best to waste and destroy her property. Prays the benefit of the act of assembly of 3rd February 1832. 8 vol. 148. Petition sworn to; copy served and proved; summons issued and served. The respondent appears by Thomas Robinson his attorney nnd refuses to deny the facts stated in the petition. This course was supposed to be taken with a view to oust the court of jurisdiction. See the peculiar wording of section second of the act. " If the deft, shall not appear, or appearing shall deny the facts stated, &c., the <;ourt shall thereupon proceed to hear and determine, &c." The Court proceeded notwithstanding to hear the case and the facts being fully establshed they made the following decree: " And now, to wit, this thirteenth day of April in the year of our Lord one thousand eight hundred and thirty-three, upon the hearing of this cause, it appearing to the court that the said Robert M. M'Caulley and Priscilla M'Caulley were lawfully married at the iime in the petition set forth, and were and are lawful husband and mfe, and as such have been commonly held, reputed and taken to T>e; and it further appearing to the said court, that the said Robert M'Caulley, after the solemnization of the said marriage, being alto- gether unmindful of his conjugal vow, did commit the crime of adul- tery, and that he did also treat the said Priscilla M'Caulley his wife with extreme cruelty : it is therefore considered, adjudged and de- creed by the court that the marriage between thp said Robert M. M'Caulley and Priscilla M'Caulley ought to be dissolved; and the marriage aforesaid between the said Robert M. M'Caulley and Pris- cilla M'Caulley is (according to the statute in such case made and provided) pronounced and declared to be dissolved, and the said par- ties to be divorced and separated accordingly ; and that all and every the duties, rights and claims accruing to either of the said parties by reason of the said marriage shall henceforth cease and determine. And it is further considered, adjudged and decreed that the said Priscilla M'Caulley shall be restored to all her lands and tenements : and that she shall be further allowed out of the real and personal estate of the said Robert M. M'Caullev the sum of one hundred dollars : and it is also ordered, adjudged and decreed that the said Robert M. MTaul- ley pay the costs in this cause." 18 138 ADAMS' ADM'R vs. BURTON, SHERIFF. JOHN REED vs. HENRY TODD. A tenant will not be permitted to dispute his landlord's title. It is for the court to say whether a tenancy is proved. ACTION on the case for use and occupation. Plea, non assump- Bit. Issue. The deft, rented the house in June 1828 of one Shrowders. In January 1829 it was sold by virtue of a judgment and execution pro- cess as the property of Shrowders and purchased by Reed. Plff. proved his title and repeated recognitions by deft, as having repairs done on Reed's account, &c. The deft, offered a paper with a view to controvert Reed's title. Pur. cur. The tenant cannot be permitted to dispute his land- lord's title. The court has to decide whether a tenancy be proved; and we are satisfied from the evidence in this case that the defendant held by permission of the plaintiff. If the paper is offered for the purpose of disputing Reed's title, it is not competent, as in our judg- ment the tenancy is proved. The plaintiff had a verdict. Frame and Clayton, for plff. Huffington, for deft. WILLIAM E. LOCKWOOD, administrator d. b. n. of JOSEPH B. ADAMS vs. WILLIAM BURTON, Sheriff of Kent County. Goods of the deceased remaining in specie are liable to be taken in execu- tion unless they have been administered in whole or in part by the payment of debts. REPLEVIN for a negro boy. The deft, pleaded " property in Levin H. Adams as administrator d. b. n. of William Brincklce, deceased, and that he levied on the boy by virtue of an execution against Levin H. Adams administrator de bonis non of William Brincklce, at the suit of the Commercial Bank, for the use &c." Joseph B. Adams was the first administrator of William Brincklce,. John Adams administered on his estate, on whose death William K. Lockwood took out letters de bonis non on the estate of Joseph; while Levin H. Adams became the administrator d. b. n. of the estate of William Brincklce. The property in question, a slave valued at $200 belonged to William Brincklce^ and on his death, went yito the possession, of first Doctor John Adams, and afterwards, when Joseph B. Adams administered, into his possession. On the death of Joseph the boy remained in Doctor Adams' family. An administra- tion account of Joseph B. Adams administrator of William Brincklo? settled by John Adams his administrator, was offered in evidence and rejected as not relevant, no proof having been made that the boy was included in the -inventory. The deft, had a verdict under the charge of the court that as there was no proof that Joseph B. Adams the first administrator of William Brincklce ever paid debts to the amount of the boy or any WORKNOT USE OF EARLE VS. MlLLEX's ADM'R. 139 part of his value, he therefore was not administered, but remained in specie as the property of William Brincklce and liable to the execution at the suit of the Commercial Bank. Ridgely and Huffington, for plaintiff. Bates and Frame, for defendant. CONKAD WOKKNOT use of CLAYTON EAKLE vs. DAVID MILLEN'S Administrator. Facts admitted on one sci. fa. cannot be controverted on an alias sci. fa. Quere whether the " Register for the probate of wills and granting letters of administration " is a judge, and as such authorized by law to administer oaths, &c., generally. ALIAS scire facias d. s. b. The defendant pleaded First, Payment. Second, N"ul tiel record. Third, 'that a fi. fa. issued, was levied on lands which were found sufficient to pay the judgment, and that to complete the execution of the judgment an elegit issued and was afterwards countermanded by the plff. Fourth, Levied by fi. fa. Fifth. Levied by fi. fa. and elegit. Sixth, Levied by elegit, with leave to give the special matter in evidence. The plff. tendered an issue to the first and second pleas; and re- plied to the four last by way of estoppel that since the happening of the matters therein alledged and set forth, to wit, on the 19 March 1821 a scire facias issued on said judgment to which the defendant appeared; and at the March Term 1822, judgment was rendered in favor of the said plff. To this the deft, rejoined that the judgment on the said scire fa- cias was a judgment "amount to be ascertained by the cleric" and that no amount was ever ascertained. Demurrer and joinder. Frame for plff. contended that although the amount had never been ascertained, the judgment on the scire facias estopped the deft, from pleading any matters that took place prior and which might have been pleaded to that judgment. 2 Tidd. 1046; 2 Saund. 72; ] Do. 219. The object of a sci.. fa. is to get execution; the cause shown in the fourth, fifth and sixth pleas is that the debt has been made, they deny that anything is due. But by confessing judg- ment on the sci. fa. the deft, admits that something is due and he is estopped from now controverting his own admission. It does not alter the case that the amount has not been ascertained. The judg- ment admits something due and this raises the estoppel. The third plea does not alledge that the debt was satisfied either by the fi. fa. or the elegit; the facts stated therefore amount to no defence. Tak- ing out execution is no satisfaction; and, unless the elegit was exe- cuted, this is no defence. The plea here negatives the payment as it states that the elegit was stayed. Johnson for deft. I admit the principle stated in Tidd that you cannot plead to a scire facias what occurred before the original judg- ment, but deny that this prevents us from pleading any thing that 140 WORKNOT, USE OF EARLE VS. MlLLEN's occurred after the original judgment though before the first sci. fa. on which a judgment was obtained. This principle refers to the orig- inal judgment. An estoppel must be pleaded with the greatest cer- tainty. Coke Litt. 352, a. If the plff. goes back beyond the judg- ment on the sci. fa. on the same principle we may go back and plead matters prior to that judgment. And this judgment is in itself of no consequence as no amount has ever been ascertained. It is a judg- ment for nothing. 1 Yeates 254. Judgment by way of security admits nothing, but the plff. must take out what is due. 2 Saund. 7, note 2. Frame. It is not essential to the validity of an estoppel that the suit should be founded on it ; an admission will estop though the suit is not founded on the admission. An alias sci. fa. is not predicated on the first sci. fa. but on the original judgment. If the matter now alledged as a defence is true then the judgment on the sci. fa. was false. Is he not therefore estopped by his admission from falsi- fying that judgment." The Court sustained the demurrer, Mr. Justice Black delivering the opinion. BLACK, J. On the first scire facias the administrator of Millen confessed a judgment and by this admitted that the debt of the plff. or the original judgment had not been paid or discharged at the time of such confession this admission stands on the record. To the present scire facias the administrator pleads that prior to the ren- dition of the judgment on the first sci. fa. this original judgment had been fully satisfied by process of execution, and that nothing remained due on it when the judgment on the first scire facias was rendered thus denying what by the record was formerly admitted. The entry " that the amount shall be ascertained " does not vary the case, for it admits that the judgment has not been satisfied, but provides a mode for ascertaining, not whether any thing is due, but -how much. If the present pleas be true, then the admission made on the record on the first sci. fa. was not true. These pleas aver in effect that the admission was not true. If a point has been once litigated or at issue between the parties and be settled by a verdict or admission of a party, in any subsequent proceeding between the same parties, this point cannot be contro- verted. The judgment on the scire facias was not as was intimated by the cleft's counsel, an interlocutory judgment. It was an absolute and final judgment that execution should go for the amount of the pen- alty of the judgment : the provision " that the amount should be ascertained " had reference to the sum that should be endorsed on that execution as the real debt that should be levied under the exe- cution. The deft, in consequence of the admission on the record by the confession of judgment on the scire facias is estopped from denying the truth of that admission or of pleading the matters set forth in the third, fourth, fifth and sixth pleas. The demurrer therefore must be sustained. EAVES' ADM'K. vs. KING. 141 Clayton, C. J. having been counsel for the plff. on the first sci fa. declined sitting on this cause but concurred in the opinion. The case came on for trial at the next term on the plea of pay- ment. The probate offered was taken before Evan H. Thomas, "'Register for the probate of wills and granting letters of adminis- tration in and for Newcastle county," and it was objected to on the ground that such an officer had no authority to take it. On the other side it was contended that the Register had power ex officio to admin- ister oaths in any case where it is proper that an oath should be taken. He is a judicial officer; has judicial power and is recognized as such by the constitution. Art. 6, sec. 1. " The judicial power of this State shall be vested in a court of Errors and Appeals, Superior Court, &c. " a Registers Court" Justices of the Peace, &c. &c." Dig. 419. " The Chancellor, each of the Judges, every Justice of the Peace and every Notary Public in this State shall have authority in every case in which an oath or affirmation is necessary, or proper, to administer such oath or affirmation." The Court (the Chief Justice not sitting) was divided on this question; Black, J. for sustaining the probate, and Robinson, J. against it. The plff. then produced a probate sworn before the Mayor of Philadelphia, and properly certified, which was admitted, and The plaintiff had a verdict. Frame and Huffington, for plaintiff. Johnson, for defendant. SAMUEL EAVES Adm'r. of ABRAHAM S. EAVES vs. MICHAEL KING. The plea of non cepit in replevin admits the property. A plea of property in a negro slave is not supported by evidence of her freedom. REPLEVIN for a negro woman and two children. Pleas, non cepit ; property in deft. ; and property in a stranger ; issues. The deft, offered evidence of the freedom of the negroes, but it was rejected by the court. The plea of non cepit admits the property in the plff., and this evidence is not admissible to contradict that plea. It does not go to establish either of the other pleas; it does not show property in the deft., nor in a stranger; in truth it contradicts both of these pleas as well as the express admission of the first plea. Moreover the free- dom of the negroes cannot be tried in this proceeding. The plaintiff had a verdict $30 damages. Gray, for plaintiff. Wales, for defendant. 142 RICHARDSON vs. CARR. The State, use of WOODS & QUIGG vs. NATHANIEL BECKLEY. In debt on an administration bond, the plaintiff must show assets. A statement filed with the Register that there are no goods, is equivalent to filing an inventory. DEBT on an administration bond. Pleas, plene administravit ; re- tainer, and debts of superior dignity. Replications and issues. Beckley was the administrator of Thomas Kearns. The breach assigned on the bond was that he had filed no inventory of the goods of Kearns, nor any account of his administration. The plffs. then showed a judgment at their suit against Kearns for $268 69, and a judgment of assets on a sci. fa. on this judgment against Beckley the administrator. And they rested their case. Wales, for the deft, offered in evidence a statement made by Beck- ley the administrator, and filed before the register, setting forth that Kearns had no property whatever. This statement was filed after the issue joined in this case. It was objected to by the plff's. coun- sel on the ground that it was evidence manufactured by the deft, for himself ; but The Court admitted it, suggesting that it was similar to and in lieu of the passing an account. Indeed it was the only account Beck- ley could pass. But the court said it was not the duty of the deft, to show he had no assets, but of the plff's. to show he had. If assets be shown, the deft, must prove that he has administered them. The plaintiff was nonsuited. Gray and Hamilton, for plaintiff. Wales, for defendant. THOMAS RICHARDSON, Appellant, d. b. vs. JOHN CARR, Respondent, plaintiff below. Injuries to cattle, though trespassing, are actionable. APPEAL from the decision of a justice of the peace. This was an action of trespass for worrying a cow with dogs so that she died. It appeared by the evidence, that the plff's. cow had been trespassing in the deft's. close, and that he stoned her, and set dogs upon her; but there was some doubt whether her death was occasioned by this conduct of the deft., or from a surfeit in eating corn. The Court charged the jury That if a cow be found trespassing on another's property, the owner of the property may impound her, or sue for damages, or drive her out; but in driving her out he must use only necessary violence, or he becomes himself a trespasser and liable in damages to the owner of the cow. If the deft, in this case beat the plff's. cow and mangled her with dogs as he is charged, he is a trespasser though the cow was in his corn field, and the plff. ought to have damages, to the value of the cow, if her death was occasioned by his MURPHY vs. COUNTISS. 143 act; and, if not, to the amount of the injury. If however, in turn- ing her out of his field, he used only the necessary force, and her death arose from other cause the deft, ought to have a verdict. Verdict for appellant, defendant below. Hamilton, for appellant. Wales, for respondent. JAMES M'DERMOTT vs. JAMES KENNEDY. The defence of possession, how far an excuse in an action of assault and battery. If one orders another -out of his house he is bound to go; and, if he refuses, the necessary force may be lawfully used to put him out. TRESPASS, assault and battery. Pleas, Not guilty and justifica- tion. The case was this. Kennedy being in the plff's. store and a dis- pute arising, the plff. ordered him out, when he refused to go. Plff. then took hold of him to put him out; and, in the struggle, they both fell down the steps and the plff. was badly injured. The case was submitted to the jury, The Court charging: That if a man orders another out of his house, he is bound to go ; and, if he refuses, the owner or occupant of ihe house has a right to put him out, and to use the force necessary for that purpose. That though in a criminal proceeding a party is :not answerable for a mere accident, yet a trespasser is liable in a <;ivil action, for accidents arising from his improper conduct, except such as are inevitable. Verdict for plaintiff $35 44. Booth, for plaintiff. Rogers, for defendant. MOSES MURPHY vs. PETER COUNTISS. A false imprisonment does not necessarily include an assault and battery. If an officer illegally imprisons a person he is liable not only for the time he is in the officer's custody, but for all the time of his imprisonment. TRESPASS,, assault and battery, and false imprisonment. Pleas, ZSTot guilty and justification. The plff. was claimed as a servant by one Stephen Townsend, and the deft, being a constable, arrested and put him in prison as such servant. Upon investigation, it turned out that Townsend had no valid claim to the plff. Whereupon he brought this suit. His counsel contended that every imprisonment necessarily in- duded an assault and battery; which was denied, and the deft, in- sisted that, if liable at all, he was only liable while plff. was in his cus- iody and not for the whole period of his imprisonment. The Court said the older authorities sustained the position of the plff's. attorney. In the time of Lord Kenyon and since, however, 144 WHITEMAN vs. SLACK. the decisions have been that a false imprisonment does not necessa- rily include a battery. But it makes no difference here; the false imprisonment, if proved, will entitle the plff. to recover; and not merely for the time the constable was bringing him to jail, but for the whole period of his imprisonment. The plaintiff had a verdict. Gilpin, for plaintiff. Latimer, for defendant. THOMAS MILNER vs. BAINTQN & BANCROFT. " We certify that we are bound to pay " is a promise to pay. ASSUMPSIT. Pleas, non-assumpsit ; payment, discount and act of limitations. The narr contained two counts on a special promise in writing, to- pay Milner $80, &c., and the common money counts. The plff. gave in evidence this paper: " 8th December 1830. This is to certify that we are bound to Thos. Milner, in the sum of eighty dollars on account of money included in John Simpson's bond to us. As witness our hands this 8th Dec. 1830. BAINTON & BANCROFT." The deft, moved a nonsuit on the ground that this paper did not support the declaration. The declaration states a promise to pay; this paper contains no such promise. The Court refused the nonsuit. The paper is set out merely ac- cording to substance and legal effect. The acknowledgment of defts. that they were bound to pay, is equivalent to a promise to pay. Verdict for plaintiff. Wales, for plaintiff. Hamilton, for defendant. THOMAS WHITEMAN vs. LEWIS SLACK. A covenant for the forthcoming of goods to be levied on at the suit of A. is- broken by causing them to be levied on in the mean time at the suit of the covenantor. See a full statement of the case in William B. Crawford & Co. vs. Lewis Slack, ante p. 122. This suit was brought on the same instrument. Narr in covenant. Plea, " That deft, did cause the goods and chattels of Nathan Coggins to be forthcoming according to the form and effect of the deed, &c." On the 24th June 1831, Whiteman, being a constable of Newcastle county, held sundry executions in his hands against Nathan Coggins at the suit of Win. B. Crawford & Co. to the amount of about $30 0, and being about to levy on Coggins' property the deft. Slack, with HUEY vs. HENDRIXEN, ET AL. 145 a view to stop this proceeding, entered into an engagement for their forthcoming on the following Monday the 27th June; and executed the paper on which this suit was brought. Very early the next morn- ing Slack and Coggins went before justice Eussel, and Coggins con- fessed ten several judgments to Slack to the amount of $470. Exe- cutions were issued immediately on these judgments, and delivered to constable Adair, who forthwith seized and took in execution all the goods of Coggins. Adair afterwards sold the goods and applied the proceeds to Slack's executions. Harrington, J ., stated the issue to the jury, and charged them that Slack having by his own act put it out of his power to perform his covenant with the plff., was 'liable to him. The arrangement entered into on the 24th June, between Slack and Whiteman, was professedly to save Coggins' credit. The extent of his engagement, with Whiteman was to place him in the same condition in relation 10 these goods on Monday as he then stood in; the causing them to- be levied on immediately afterwards at his own suit, was in violation of the agreement. By that levy constable Adair obtained the legal custody of the goods, and Slack had it no longer in his power to de- liver them to Whiteman according to his engagement. Constable Whiteman being liable to Crawford & Co., for the amount of their tixecutions, ought to be indemnified by this verdict. Verdict for the plaintiff $323 94. Rogers, for plaintiff. Booth, for defendant. JOHN HUEY vs. PETER HENDRIXEN, and others. In laying out a road under an order of court, the order must be followed, or the party is guilty of a trespass. The deviation may be proved without pretensions being regularly laid down. TRESPASS quare clausum fregit. Plea, Not guilty; justification and a license. Three of the defts. were the road commissioners of Brandywine hundred, and the others their agents. On an application to the Court of General Sessions, an order had been regularly made to lay out a road through the plff's premises, according to a certain return of freeholders. The defts. acting under this order went upon plff's. land and laid out a road essentially different, as he contends, from that authorized by the order; and that the deviation was wilful and designed, and much to his prejudice. The plff. called Joseph Taylor, a surveyor who had laid down his pretensions. He proved the plots and they were offered in evi- dence. Objected to. Hamilton. The rule to lay down pretensions under which these plots were made, was laid between other parties than those in the case now trying. They are therefore, not pretensions authorized by any warrant in this cause and are not evidence. 19 M'CALL vs. REYBOLD. Bayard. These plots would be evidence without any rule. We could have made a survey ex parte of the lines pointed out by the record of the Court of General Sessions authorizing a road, and prove by the surveyor that the road cut by these def ts. is not laid down ac- cording to that order. We might prove this by any other witness, and much more so by a surveyor who has run and plotted the ground. The objection here arises fjrom an accidental mistake of the clerk in making out the rule to lay down pretensions; some of the def ts. were omitted. The truth is, the rule was obtained in this cause and be- tween these parties. Rogers, in reply. The doctrine is new that a party in an action of trespass, can lay down his pretensions without warrant. This is a cause between Huey and nine defts. The plff. offers pretensions laid dawn in a cause between Huey and five defts. The sheriff could not give notice to other persons than those named in the rule. All the defts. are entitled to notice, and are not bound without no- tice. The Court. This is a case of trespass for damages in cutting a road through plff's. land. The defence is a justification by an order of court authorizing the road to be laid out. The defts. must show that the road is laid out according to the order, to make out their justification. As a mere execution of a warrant to lay down preten- sions this plot is not evidence. But the witness may be asked if he has run the land; if the road as opened corresponds with the order; in what respects it varies; and he may use this plot to refresh his memory. Verdict for the plaintiff $525 00. Booth and R. H. Bayard, for plaintiff. Hamilton and Rogers, for defendants. JOHN M'CALL vs. PHILIP REYBOLD. One tenant in common cannot maintain trespass against a co-tenant unless there has been a destruction of the thing held in common, or after recovery in ejectment, &c. A partition may be presumed from a long several holding by heirs of land descended to them from a common ancestor. When a partition may be presumed. TRESPASS quare clausum fregit. Pleas, Not guilty; justification and liberum tenementum. Plff. proved the trespass, and that the locus in quo being a certain marsh in Redlion hundred, had descended from Patrick Porter, and had been in the several and undisturbed possession of plff. and those under whom he claimed from 1801-2 or 3 to 1821, since which time the possession had been disturbed by Reybold by repeated claims of ownership. The marsh was divided by a natural sluice; that part on the north part of the sluice was in possession of Jones in 1801-2 or 3,. at the witness' earliest recollection, and never claimed by Rice, who held the part on the south side. The Jones lot passed through several conveyances to Reybold: the Rice lot descended to plff's. wife. M'CALL vs. REYBOLD. 14? The deft, set up a tenacy in common in the locus in quo; went into a history of the Porter family, and gave in evidence sundry deeds forming a chain of title in him to one-half the land which he insisted had never been divided. These deeds all spoke of it as undi- vided property. He exhibited a deed from David Porter to Evan 3ice, reciting Patrick Porter's will, and conveying an undivided one-third of a moiety of land and marsh, 22d December 1802. Deed :!rom Eice and wife to Purnel Yeach for one-third of a moiety, 1st July 1809. Proceedings and deed of sheriff to Archibald Alexander ~or one-half of a moiety the share of John Jones, 20th December 1811; deed of Alexander to Yeach, 9th June.lSl-i; from Veach ;o Thos. M. Forman and from Formaii to Reybold, 1st Jan. 1820. In reply the plff. gave in evidence the record of certain articles of agreement between Purnel Yeach of the one part, and Evan Rice on the other part, dividing as he contended these lands, 1st July 1809. The articles fixed on certain lines as the division between the upland, and bound the parties to execute mutual deeds of release according to those lines. They agreed to divide the marsh, but no lines were mentioned. The terms were " The said Evan Rice and Purnel Yeach, each agrees to release to each other " the marsh lots, so that each shall hold their parts in severally; and they bound them- selves in a penalty to execute such releases. In answer to this the deft, called William P. Yeach, the son of Purnel Veach, who proved that he never knew of any actual division of the marsh in conformity with this agreement. Richard H. Bayard, to the jury, for plaintiff. Trespass quare clausum fregit. The deft, claims the land and has put us on showing title. Patrick Porter died seized of a farm and twenty-one acres of marsh in Redlion hundred. His estate went under this will to his daughters Janet and Mary Porter. Janet mar- ried Robert Porter; Mary married Whitehead Jones. Porter and wife and Jones and wife were each, therefore, entitled to one-half of this marsh. Robert Porter and Whitehead Jones divided the marsh, as we contend, some thirty } r ears ago or more, Jones taking that part which lay to the north of the sluice, and which has always been called the Jones lot ; Porter taking the south side, which shortly went into the possession of Evan Rice, and has since been known as the Rice lot. Whitehead Jones and wife had issue, John Jones and Mary Jones. Mary Jones married Evan Rice. Rice and wife therefore, had one-half of the Jones lot. Robert Porter and wife had issue Mary Porter and David Porter, who were each entitled to one-half of the south or Rice lot. Evan Rice's second wife was Mary Porter, and he thus became entitled to Mary's one-half of the Rice lot, having before one-half of the Jones lot in right of his first wife Mary Jones : which last he conveyed to Purnel Yeach, and from him it came to Revbold. Evan Rice bought David Porter's one-h?lf of the Rice lot, which gave to him the whole of this lot ; and Revbold becoming possessed of John Jones' share and the remaining half of the Jones' lot, is the owner of the whole of that lot. The title to the Rice lot, or locus in quo, descended from Rice and wife to plff's. wife, their only surviving child. From the long several holding of this marsh, we have a right to 148 M'CALL vs. REYBOLD. conclude that Whitehead Jones and Robert Porter made a division; which, at that day, could have been done as well by parol and livery of seizin as by writing. But there is a subsequent actual partition by deed between Purnel Yeach and Evan Rice. We contend that this is an actual division, and not merely an agreement to divide. They mutually contract and agree to release to each other by a line " which it is agreed shall be the dividing line between the parties." 1 agree to release is the same as I release, and the same form of lan- guage is used in introducing the penalty. In confirmation whereof, we agree to bind ourselves, &c. The last clause is only a covenant for further assurance. Deeds must be construed according to the in- tention of the parties, and here they were in the contemporaneous holding and enjoyment of the property as released to each othe,r. AVashington Rice proves that his brother held in severalty from 18D1-2 or 3. This deed was in 1809. Why was this instrument .recorded if not a conveyance ? The parties thus showed their intent : a mere agreement to convey is not entitled to be recorded. Doctor Alexanders deed to Veach, bounds the Jones lot to the south by Rice's land, which shows the holding at that time; and moreover this is an estoppel, for deft, claims through Veach and Alexander. If this were a tenancy in common, Evan Rice would have been en- titled to a share of the Jones marsh which he never claimed, and which Jones and his successors held without disturbance. That being held in severalty, is strong proof that this was so held. And if there were any doubt about a severance of this tenancy in com- mon, the jury would presume it after such a lapse of time. We have proved an actual several holding by Evan Rice nineteen or twenty years ago, and he no doubt so held long previously. 3 Bac. Ab. 7D9 ; Noy's Rep. 14; Cowper 217. Actual ouster what? Rogers, for defendant, to the jury. Th? deed of David Porter to Evan Rice conveys only a third of a moiety of this land. He was entitled to one-half of the moiety, and therefore he is a tenant in common with the plff. for a portion of the Rice lot supposing a division was made, and he ought as such tenant in common to have been joined in this action, for such tenant can't sue separately for a trespass to their common property. But was this marsh even divided ? A plot of all the Redlion marsh made undr>r an act of assembly in 1805 lays down this marsh as the un- divided property of Jones and Rice. The testimony in relation to what is now assumed as the dividing line is, that about twenty-five or twenty-six years ago the Redlion bank broke, and made this sluice. As a dividing line it could not have existed more than twenty- five or twenty-six years. lAnd for ten years past, it is admitted that the possession has been disturbed. Xext the deed of Rice and wife to Veach shows that no division had been made. It conveys " an undivided third part of the moiety." John Jones' share was exe- cuted and sold as "two-thirds of an undivided part of the land." Finally, the agreement between Evan Rice and Purnel Veach, which has been so much relied on by the plff. shows that there had been no division theretofore. It agrees upon a dividing line for the upland but no line is fixed on as a division of the marsh. They bind them- selves to release to each other their shares of marsh, so that each M/CALL vs. REYEOLD. 149 should hold in several ty: does not this prove that it was then held in common? Then does this article effect that partition? No, it was merely an agreement to divide; an executory contract. Who -were the parties to this instrument? Evan Rice was then the hus- band of Mary Jones. Mary Porter his first wife was dead leaving issue; that issue, and not Rice, were entitled to one-fourth. David Porter had and interest still in it, and Rice had only one-third of a moiety, and that as a tenant by the curtesy. How then could Evan Itice make a partition with Veach? As to its being a conveyance because it is recorded, any deed in relation to lands may be recorded, whether it conveys land or not. It has been called a release, and has been said to sever the tenancy in common by way of release, but one tenant in common cannot release to his co-tenant. Whatever may be its effect it is not a release. J. M. Clayton, on the same side. The plff. claims that there has been a partition of this marsh. Look on the plot and see what is the equal division which they say has been made. Coming down to the sluice, their dividing line, it will be seen that we have got about four or five acres of the marsh, and they twenty-ones acres and one hundred and ten perches. We say it is conclusive, that no such division ever was made. But what is the testimony in relation to the holding. All ihe deeds state this to be undivided property. Rice's deed. Alexander's nnd Forman's. Mr. Bayard was mistaken in relation to Alexander's deed. No such boundary as he supposed, is mentioned in that deed. But this part of the case is shut up by the articles of agreement be- tween Rice and Veach. Here the tenancy in common is expressly ad- mitted ; and the question is whether that deed had the effect to sever it in relation to the marsh. As to the upland, we have no objection to jidmit that it did; it distinctly fixes and describes a dividing line, and the holding has been in accordance with that division; but we deny that the parties intended or did any thing more by that deed than to agree to divide. In relation to the marsh, the deed says " The said Evan Rice and Purnel Veach, each agrees to release to each other the marsh lots, so that each shall hold their parts in severalty ; " and they bound themselves in a penalty, to execute such releases. Nothing is clearer than that this is but an executory agreement to provide, with covenants to convey or release. And if Rice and Yeach had actually released, it would not have severed the tenancy. Tenants in common cannot release to each other. Then if this tenancy has not been sev- ered plff. must fail. Bac. Ab. 694, v. 3, Wils. Edit. Co. Litt. 193, &. Cruise tit. 20. One tenant in common cannot bring trespass against another, for both are seized per my et per tout. 2 Selw. N. P. 1023. An ouster cannot be presumed in this case. No such presumption has ever been allowed in less than thirty-six years. The case in Cow per narrows it down to that time. An actual ouster cannot be pretended ; for the plff. has himself proved that he continues in possession. If two tenants in common be, and one destroy the property held in com- mon, the other shall have an action of trespass. Co. Litt. s. 323, 199 &. This proceeds on the destruction of the thing, and it explains the case cited from Noy. (Note.) See 1 Chit Plead. 182; 2 Saund. Evid. 458, (896.) 150 M'CALL vs. REYBOLD. Cites Co. Lilt. 1996; 3 Wils. 119, and 12 Mod. 517. The references do not appear to sustain the text. Read, jun., in reply. Went into the whole ground, but his remarks are in substance re- ported in his colleague's argument. He noticed Mr. Rogers' objec- tion that David Porter was shown to be a co-ter.ant with the plff. and ought to have been joined, but the court stopt him on this point,, and said that this matter ought to have been pleaded in abatement. Mr. Read admitted that the deed or agreement between Rice and Veach could not operate as a release, but he insisted that it was matter of evidence confirmatory of the previous several holding, which he in- sisted was proved. We have proved that the marsh was in two lots; the Rice lot and the Jones lot, then belonging to Veach. They had been so held for at least nineteen years. In 1809 Rice and Veach executed a deed dividing the upland and fixing on the dividing line, and agreeing to release to each other' the marsh lots, evidently referring- to the lots as they had theretofore been held. There was no necessity for inserting in the deed a more particular description of the dividing line, for it referred to two distinct lots, long held and known as such, and they agree mutually to release to each other all interest in these lots. And it is not important whether this shall operate by way of release, confirmation or otherwise, so that it effect a severance, or ac- knowledges a previous several holding of the land. The Chief Justice (CLAYTON,) in charging the jury. Traced the descent minutely from Patrick Porter and the inter- mediate conveyances, and showed that the title to one-half of the marsh was in the plff., and to the residue in deft. He then stated! the question to be whether there had ever been a partition, either actual, or such a holding as would amount in law to a partition. It has been thrown out in the debate that a partition by parol might even now be sufficient, but we apprehend that since the statute of frauds a parti- tion to be valid must be in writing. The construction that the court put upon the deed between Rice and Veach is that it did effect a par- tition in relation to the upland, for it marked and defined the hold- ings; but there is nothing in the deed itself from which you could collect what portion or part of the marsh either of the contracting parties was thenceforth to hold in severalty, nor did it distinctly refer to previous holdings, so as to fix which lot should be Rice's and which Veach's. The terms too seem to imply the contemplation of a subse- quent division. We are therefore of opinion that this deed amounts only to an agreement to divide the marsh, and is not an actual di- vision. The jury will perceive the importance of this point; for, if the possession has not been severed, the plff. and deft, are tenants in common, and this action cannot be sustained; for one tenant in com- mon cannot maintain trespass against his co-tenant, except under peculiar circumstances, as where there has been a destruction of the thing held in common, or after a recovery in ejectment, &c. But the plff. considers that he has proved a several holding long enough back to satisfy you that there was a partition between Por- ter and Jones, and he has proved a several holding by Evan Rice RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 151 and his descendants for eighteen, nineteen or twenty years, and for ten years since, a disturbed possession. We leave the evidence on this subject with the jury, remarking that where land descending from a common ancestor is held a part by one, and another part by aivjtluT heir, without either interfering with the other for so long a period as twenty years, it would be strong evidence of a partition. Verdict for plaintiff. R. H. Bayard and Read, jun., for plaintiff. Rogers and J. M. Clayton, for defendant. JOHN EANDEL, jun'r. vs. The PKESIDEXT, DIRECTORS and COMPANY of the CHESAPEAKE and DELAWARE CANAL. Any agreement under seal is a covenant. The language of a covenant in a contract between several, is to be applied to the party to which it reasonably belongs. The whole contract is to be taken together. That construction is to be prefered which will make the whole instrument operative. If there be ambiguity, the words of a covenant are to be taken most strongly against the covenantor. In covenant, the breach may be assigned in the words of the covenant, where such general assignment amounts to a breach. Less particularity is required where the matter rests in the knowledge of the other party. Enough must be placed on the record to show that the covenant is broken, and that the plaintiff has a cause of action. After argument on general demurrer, and the opinion of the court delivered, leave to withdraw the demurrer and plead over refused. COVENANT. Demurrers to the seventh and eighth counts of the narr. These demurrers were argued at the present term by Frame, At- torney General, and Walter Jones, for the def ts., the demurrant ; and 7. M. Clayton, C. J. Ingersoll, Rogers and Read, jun., for the plaintiff. The narr set out the following contract between Randel and the Canal Company, the whole of which is inserted here for future re- ference, though a part only, two clauses thereof, were immediately involved in the present argument. " Articles of agreement made and concluded the twenty-sixth day of March, in the year 1824, between John Randel, junior, of the state of New-York, civil engineer, of the first .part, and the Chesapeake and Delaware Canal Company of the second part. The party of the first part for himself, his executors, administrators and assigns, covenants and agrees to and with the party of the second part, to excavate, embank and construct in a good substantial and workmanlike manner, all that part of the Chesapeake and Delaware canal included in sections number one, two, three, four and that part of section number five, which extends from station number two hun- dred and ninety-eight, to number three hundred seventy-three, as the same are protracted and defined on a certain map and estimate pre- pared by the party of the first part, and now in the possession of the party of the second part, together with the proposed harbor on the 152 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. river Delaware. The canal and banks to be so constructed, that the water may be in all places at least sixty feet at the surface or top water line, and thirty-six feet at the bottom in width, and eight feet deep. Each bank to be raised one foot above the top line of the high- est tide heretofore known, except on the summit level, where it shall be from two to seven feet above the water line : and such a slope shall be preserved on the inner side both above and below the water line (not exceeding two feet base to one foot perpendicular elevation,) as the engineer of the company for the time being, shall direct. The towing path shall be on the north side of the canal : its upper surface twelve feet wide: the upper surface of the bank on the opposite side of the canal from the towing path, six feet wide. Both banks shall be constructed of the best earth which the adjoining excavation will give, in a workmanlike manner with a slope on their outer sides, not less than that hereinbefore prescribed for their inner sides. (Covenant to pay.) And the party of the second part agrees to the party of the first part his executors, administrators and assigns for completely performing this contract the sums which are stated as the cost thereof in the said estimate of the party of the first part, under the conditions and provisions expressed in the annexed schedule (semi monthly.) payment to be made every fortnight according to the said schedule for the work which the engineer of the Company shall certify to have been actually done by the party of the first part. (Ten per cent, for contingencies.) Provided however that no part of the amount of ten per cent specified in the estimate aforesaid to be for contingencies on the whole contract shall be payable to the party of the first part until the final and absolute completion on his part of the whole of this contract. (In case of Handel's death.) And in case of the death of the party of the first part pending this contract, and be- fore default or delinquency on his part, and this contract is thereby determined, such portion of the said ten per cent, shall be paid to his representatives, as upon consideration of all circumstances of difficul- ties overcome by him and future security of the company for the com- pletion of the unfinished residue at the cost specified in the said esti- mate shall be just and reasonable. The certificate of the principal engineer of the company for the time being on this point to be final and conclusive between the parties. (Revision of prices.) The ob- ject of the parties being to fix such a rate of payment as to secure the company against future delinquency and at the same time enable the contractor to make progress in his work; it is further agreed, that it shall be competent to the parties at any time between the first and seventh of June next to revise and remodel the schedule annexed and change the rate of payment; in case of difference of opinion between the parties as to the proper revised prices the engineer of the com- pany for the time being shall be an iimpire, and his certificate on the matter final and conclusive. If the schedule is not so revised the prices therein stated shall be final and established. (Inspection covenant.) And the said works during their progress shall be carefully examined and inspected, and to prevent misunder- standing and disputes it is hereby agreed that Benjamin Wright, es- HANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 153 quire, or some other competent engineer to be selected by the party of the second part, shall be the inspector of the said works (Estimates &e.) and shall estimate the number of cubic yards of excavation and also of embankment, and his estimate thereof when certified to the party of the second part shall be final and conclusive between the par- ties. (Abandonment.) And it is further agreed that if the opinion of the engineer in chief for the time being in the employ of the party of the second part shall be that the party of the first part refuses or unreasonably neglects to prosecute this contract, such engineer may certify the same to the said party of the second part, and on his certifi- cate, the said party of the second part shall have the power of deter- mining that he has abandoned it; and such determination shall alto- gether exonerate the said party of the second part from every obliga- tion imposed on them by the said contract, except to pay as aforesaid for work already done; and they may immediately thereafter proceed to dispose of the subject matter of this contract in the same manner as if this contract had never been made; (Deviations.) and the party of the first part further agrees that during the progress of the work he will from time to time conform to such deviations from the present line of canal, and to such alterations in the form, slope and dimen- sions of the banks, towing paths or any other of the said works, as the said party of the second part or their engineer shall direct; provided that the said party of the second part shall pay to the said party of the first part such additional sum as the engineer of the party of the sec- ond part for the time being shall certify to be a fair compensation for any additional expense incurred by the said party of the first part by reason of such deviations or alterations. And it is further agreed be- tween the said parties that whenever this contract in the opinion of the inspector hereinbefore described is completely performed in every respect by the said party of the first part the said inspector shall certify the same in writing" under his hand together with his estimate of the number of cubic yards of excavation and also of embankment: and the said party of the second part shall within thirty days after notice of such certificate pay to the said party of the first part the sum which according to this contract and the said estimate shall be due to him in- cluding therein the ten per cent, reserved for contingencies as afore- said. (Prevention. R-W Breach of this clause assigned in the 8th count.) And it is further agreed as aforesaid that in case the party of the first part shall, from the default of the party of the second part in any, particular be prevented from pursuing the due and best mode of ex- ecuting this contract, or from entering upon or flooding lands for that purpose, the pecuniary damages sustained bv him in consequence thereof shall be certified by the engineer of the partv of the second part for the time being; and, on his certificate, which shall be final and conclusive between the parties, the party of the second part shall make to the party of the first part such reasonable compensation and allow- ance as by the said certificate may be ascertained and fixed. (Time covenant. U3F" Breach of this clause assigned in the 7th count.) And it is further understood and agreed as aforesaid that the time within which it shall be incumbent on the said party of the first 154 HANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. part fully to perform and complete the said contract shall not be taken, to be less than four years from and after the first day of May next ensuing,, and that upon the completion of the same he shall deliver over the work and canal into the exclusive charge of the said party of the second part free from 'all incumbrance whatsoever. (Umpirage.) And lastly to prevent and avoid all litigation be- tween the parties it is agreed and stipulated that in case of dispute or difference of opinion between the said parties as to any point whatso- ever connected with or in any manner affecting this contract or the execution thereof, the engineer in chief for the time being in the em- ploy of the party of the second part shall be the umpire and judge between the parties, and his certificate in writing shall be a final and conclusive determination of the matter." Schedule of prices referred to in the preceding contract. For section No. 1. from the river Delaware to station No. 8, twenty- nine chains in length price for the section twelve and a half cents per cubic yard ten cents only per cubic yard for all excavation to within two feet of bottom, and the 'balance when the section is com- pleted. If the contractor shall remove the surplus earth of excavation and place it in proper form to construct a harbor according to the plan proposed by him, for such earth so removed and placed he shall re- ceive three cents additional per cubic yard, and when the same shall be secured by stone he shall receive for every cubic yard so placed and secured one cent further additional. For section No. 2, from station No. 8, to station No. 24 thirty- two chains in length price for the section fifteen cents per cubic yard; fourteen cents only per cubic yard for all excavation to within two feet of bottom and the balance when the section is completed. All the surplus earth of excavation of this section shall be deposited in such places as shall be directed to form a harbor as mentioned in section No. 1. For every cubic yard of earth so deposited he shall re- ceive four cents additional, and when secured with stone he shall re- ceive the further sum of one cent additional. For section No. 3. From station No. 24 to station No. 166, at St. George's milldam, two hundred and eighty-four chains in length price for the section twelve and a half cents. For all earth excavated and placed in bank as required to within two feet of bottom, eight cents, and when any half mile is completed the balance is to be paid. Note. The contractor shall at all times excavate to the bottom if in the opinion of the committee of works it can be done with good economy. For all drains, extra embankment according to the project of Mr. Eandel, the prices to be paid from time to time to be those estimated and reported by him it being understood that the work on back drains is to be paid only for the part finished, and on embankment as it is made allowing reasonably for settling fully and becoming more solid and permanent. For section No. 4. from station No. 166 to station No. 298. chains in length, price for the section fourteen cents per cubic yard. All earth excavated and removed so as to form part of towing path BANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 155 through the millpond, fourteen cents per cubic yard and all other earth excavated, but not so removed for the constructing of the towing path unless excavated from within two feet of th& bottom, eleven cents per cubic yard and the balance on the completion of the section ; if excavated from within two feet of the bottom though not used for towing paths, fourteen cents per cubic yard. For section No. 5, from station Xo. 298 to station Xo. 273, - chains in length price for the section - - cents per cubic yard. For all earth removed from surface to ten feet deep sixteen and seven- tenths cents per cubic yard. below 10 not exceeding 20 feet deep 22 ") 20 " 30 " 28 30 " 40 " 33 40 50 " 39 per cubic yard 60 " 60 " 60 " 70 " 50 70 and downwards 61 1-10 J It is understood that this graduation of price is made expressly to conform to the difference in labor and to be so estimated when done as that the whole excavation of this section shall not exceed twenty- five cents per cubic yard for the whole section. In order to induce the contractor to remove the earth as much as possible by dirt boats so as to form from the excavated earth a good towing path on St. George's mill- pond twelve feet wide on top and with proper slopes it is agreed that in addition to the prices above stated for excavation there shall be al- lowed for the first ten feet thirteen cents per cubic yard of earth so deposited where there is a deficiency of excavations to form the towing path; and for the earth between ten and twenty fee^t five cents for every cubic yard of earth so removed and deposited : provided that in no case shall any earth be so estimated as to make the whole excava- tion when done to exceed twenty-five cents per cubic yard, including all deposited in the millpond/' The seventh count of the narr after setting out the contract, as- signed a breach of the following clause : " And it is further understood and agreed as aforesaid, that the time within which it shall be incumbent on the said party of the first part, fully to perform and complete the said contract, shall not be taken to be less than four years from and after the first day of May next ensuing." (7tk Breach.} The breach was assigned in the following words: " Nevertheless the said, The Chesapeake and Delaware Canal Com- pany did on the first day of October, A. D. 1825, to wit: at, &c., and on the fifth dav of June A. D. 1824, and on divers other days and times between the day of the date of the said articles of agreement, and the day of bringing this suit, to wit, at. &c., take the time within which it should bp incumbent on the said John Eandel, jun., fully to perform ard complete the said contract, to be less than four years from ind after the first dav of Mav next ensuing the date of the said articles of agrepp^nt : and so the s^id John Eandel, jun., in fact saith, that :he said The Chesapeake and Delaware Canal Company, have not kept "heir said covenant so by them made as aforesaid, but have broken the ;?ame, and to keep the same with the said John Eandel, jun., have 156 BANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. hitherto wholly neglected and refused, and still do neglect and refuse, to the damage of the said John Eandel, jun., of four hundred thou- sand dollars lawful money, &c." (Demurrer.) To this hreach the defts. demurred ; after setting out the deed on oyer : " which being read and heard, they the said defts. say that the said seventh count of the said declaration as amended, and the matters therein contained, are not sufficient in law for the said John Eandel, jun., to have or maintain his aforesaid action thereof against them the said defts., and that they the said defts. are not bound by law to answer the same, and this they are ready to verify ; wherefore, by reason of the insufficiency of the said seventh count of the said declaration as amended in this behalf, the said defts. pray judgment, and that the said John Eandel, jun., may be barred from having or maintaining his aforesaid action thereof against them, &c. And the said defts. according, &c., state and show to the court here, the following causes of demurrer, that is to say, " that there is no is- suable fact presented by the said plff. in and by his said supposed breach of covenant assigned in his said seventh count, and that it is not stated or set forth how or in what manner or particular, or by what act or matter, the said defts. did take the time within which it should be incumbent on the said John, fully to perform and complete his said contract to be less than four years, from and after the first day of May next ensuing the date of the said articles of agreement; and also the said seventh count is further in other respects bad, uncertain, informal and insufficient," &c. Joinder in demurrer in the usual form. The eighth count of the narr assigned a breach of the following clause : " And it is further agreed as aforesaid, that in case the party of the first part shall from the default of the party of the second part, in any particular, be prevented from pursuing the due and best mode of executing this contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof, shall be certified by the engineer of the party of the second part for the time being, and on his certificate, which shall be final and conclusive between the parties, the party of the second part shall make to the party of the first part, such reasonable compensation and al- lowances as by the said certificate may be ascertained and fixed." (Sth Breach.) The breach was : " Nevertheless, although the said John Eandel, jun., was from the default of the said The Chesapeake and Delaware Canal Company, prevented from pursuing the due and best mode of executing the said contract, to wit, on the first day of October, A. D. 1825, and on divers other days and times between the date of the said articles of agree- ment, and the day of bringing this suit, to Wit, at Newcastle county aforesaid, the pecuniary damage sustained by the said John Eandel, jun., in consequence thereof, hath not been certified by the engineer of the said The Chesapeake and Delaware Canal Company for the time being, to wit, at, &c. And so the said John Eandel, jun., in fact saith," &c. (as in the last breach.) RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 157 (Demurrer.) The demurrer to this count, after setting out the deed on oyer, proceeds : " which being read and heard, they the said def ts., say that the said eighth count of the said declaration as amended, and the matters therein contained, are not sufficient in law, for the said John Eandel, jun., to have or maintain his aforesaid action thereof against them the said defts., and that they the said defts. are not bound by law to answer the same, and this they are ready to verify; wherefore, by reason of the insufficiency of the said eighth count of the said declaration as amended, in this behalf the said defts. pray judg- ment, and that the said John Randel, jun., may be barred from hav- ing or maintaining his aforesaid action thereof, against them," &c. And the said defts. according, &c., state and show to the court here, the following causes of demurrer, that is to say, " that it is not stated in the said supposed breach of covenant assigned in the said eighth count of the said declaration, in what particular matters or things the alledged default of the said defts. consisted, took place and existed ; or how or in what manner, or by what act of the said defts. the said John was prevented from pursuing the due and best mode of executing the said contract ; and also further, the said eighth count is uncertain, informal, insufficient," &c. Joinder in demurrer. These pleadings presented the two issues now before the court. ' The other pleadings in the cause were not considered or adverted to, except so far as they bore incidentally on the present discussion. Frame, Attorney General, opened for the defendants. The argument now arises on the demurrers to the seventh and eighth counts of the narr, being the fourth and fifth additional counts. The first, after setting out the contract by its substance, alledges that the time of completing the contract, should not be less than four years, and assigns as a breach, that the defts. the canal company, did take the time to be less than four years. To this there is a general and special demurrer. We contend that the plff. has mistaken the nature of this contract. The argument, therefore, involves a construction of the instrument. The language of the clause is that " it is further understood and agreed as aforesaid, that the time within which it shall be incumbent on the said party of the first part fully to perform and complete the said contract, shall not be taken to be less than four years, from and after the first day of May." We say that according to the true mean- ing of this clause, it cannot constitute the foundation of an action at the suit of the plff. It cannot, according to its inherent principles. It might constitute a defence, supposing Randel was sued for not completing the canal in a shorter period, but it cannot be the ground of action. The term, take the time, or ( ' the time shall not be taken " means that the time shall not be deemed or understood to be less than four years ; and in this connection it implies that Randel should have at least four years to do the work ; that he should not be obliged to do it in a shorter period. Now how is this to form the basis of an action at his suit? A freedom from obligation on his part; a negative ab- stract right securing him against any attempt to compel an earlier completion of the work; but not susceptible either of violation or abridgment. Suppose Randel actually prevented from proceeding in 158 EANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. the work, such interruption might be a wrong, and might on other grounds be the foundation of an action, but what relation could it have to this clause of the contract? How would this deem or take the time to be less than four years ? There is no sequence as of cause and effect, nor any connection or relation between them. There are many clauses of contracts that will not bear a suit, being in their nature unsusceptible of actual violation. Such may be said generally are those of a mere precautionary nature, prescribing the limits to the party's own obligation ; protecting him from the doing of any act, or the doing it in a particular manner or time; such, in short, as the party upon whom an obligation rests introduces to explain or limit that obligation, and which being in their own nature a shield and defence, cannot be the ground of active suit. They cannot be violated, and they execute themselves. Let -us see by what acts they charge this company with taking the time to be less than four years. In one of the breaches the declaration of abandonment is the matter. The other side will contend that this provision is intimately connected with the power of abandonment, and prevents the exercise of that power within the four years. This we deny. The power of abandonment relates to the prose- cution of the work; this clause to the completion. The language in the one case is, if he refuses or unreasonably neglects to prosecute the work ; in the other it is that the time within which he shall be obliged fully to perform and complete the work, shall not be less, &c. If their construction prevails, it prevents the company from declaring the contract abandoned within the four years, however negligent Eandel might have been in the prosecution of the work, and it thus repeals an important clause of the contract, and makes the company commit this immense work into the hands of the contractor, without any power to urge him to its completion. But is the putting an end to the contract under the abandonment power, taking the time to be less than four years ? Is the one a con- sequence of the other? The time remains and exists to the plff. and though the company might prevent his doing the work, and might render themselves liable in damages therefor, the plff. still had the time, and could not be compelled to do the work in less time. The argument is that because the company declared the contract aban- doned; this act of dissolving the contract, compelled the plff. to do the work in a less period than that stipulated for. Again, they say the company unlaivfully abandoned this contract, and thus took the time to be less, &c. Now if this abandonment was unlawful, it was merely void and not binding: it neither prevented the progress of the work nor took the time ; but whether lawful or unlawful, it took not the time, nor had any relation to the time. The same may be said of the allegation that the companv prevented the plff. from en- tering upon lands, &c., and thus took the time to be less, &c. It thus appears that this clause cannot be the ground of an action, for in its own nature it works out its own enjoyment bv the party for whose security it was introduced. It is an exemption from obligation on the part of Randel. The law would imnlv that he should do the work in a reasonable time : this clause explains that such reasonable time shall not be considered less than four years. It is difficult to con- BANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 159 oeive how this explanation can be the subject of an action on the part of Kandel. So of the allegation that the company contracted with Olement, Blackstock and Vanslyke, and so took the time to be less, &c. How ? Does a contract with other persons force Kandel to execute his m a shorter period than that stipulated for? And even supposing the .subsequent contract to conflict with the former, and that Clement & Co., in the prosecution of theirs interrupted or hindered Randel, such interruption might be a wrong and actionable, but upon no principle of construction could it be made a violation of this clause in relation co time. As to the special causes of demurrer. There is no issuable fact stated by which the defts. took the time to be less than four years. The breach contains only conclusions and not facts, and conclusions cannot be pleaded. Suppose we had traversed; what would the plff. aave proved in support of his breach? If he made out the abandon- ment we should insist that it did not prove the issue ; and so of the oontract with Clement & Co. The .breach should state premises, not conclusions ; facts which may be met by proof. In The State for the use of Bishop vs. Wilds' Adm'r. ante 87, it was decided that the aver- ment in the narr that the guardian did not perform his duty as guar- dian, and did not well and truly pay and deliver, &c. (in the words of the bond,) was too general, and did not constitute a sufficient breach. Second. The demurrer to the eighth, (or fifth additional) count. This breach also is a mere general denial of the terms of the con- tract, and is not sufficient. It does not set out any damage, and the breach is in this respect defective; for if no damage were sustained, then no damage could be certified. The contract is that if Eandel should be prevented from pursuing the due and best mode of executing his contract, the pecuniary damage sustained by him in consequence thereof, should be paid by the company on the certificate of their en- gineer. The consequential damage only was to be certified. How then could there be a breach without damage actually sustained; and must not that damage be averred ? The breach sets out that though the plff. was prevented from pursuing the due and best mode, &c., the engineer did not certify the pecuniary damage, without averring that any damage was the consequence of such prevention. Again. The plff. was prevented from pursuing the due and best mode of executing his contract. Is not this a conclusion ? And should not the means of prevention be stated ? Should we not have notice : and if it be matter of law let it go to the court. The jury could not decide such ques- tions; if it arise upon facts for their consideration, why are not the facts stated ? So much for the special causes of demurrer to the eighth count, which, however, we contend would be fatal in general demurrer. But as to the general demurrer, or construction of this part of the oontract. The count supposes that the company engage and guarantee that the engineer should certify the damages ; and that they are liable for his neglect in this particular. We deny that this is the contract. It is merely a mutual siibmission of this matter to the engineer as an umpire f6r whose conduct neither party is peculiarly responsible. It is contrary to the letter as well as the spirit of the contract that 160 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. the company should be bound for the acts or responsible for the negli- gence 01 the engineer. " It is further agreed between the said par- ties," not that the canal company covenants and agrees with Randel. It is a mutual reference of the matter to an umpire ; not a contract by one party that such umpire shall do certain acts. Again : if the com- pany guaranteed this service to be done by the engineer, the word would have been will and not " shall " as it is. Is Handel a covenantor in this clause or not ? If he be, then the company cannot be liable to this suit. He is equally bound with them for the acts of the umpire, and equally liable for his negligence. Establishing this, that there is a mutual binding and a common umpire, can it alter the case that such a reference or umpire is the engineer of the company. This was no part of the engineer's duty as such ; quoad hoc he was not the agent of the company, but of both parties. And the company had no legal power to compel him to this duty. Why ? Because there was no obli- gation on him as engineer, to certify these damages ; and he was under no obligation to the company by reason of the reference, which he was not equally under to Eandel. The one had no more control over him than the other. I exclude now all idea of private influence which the company might be supposed to have over him, for this is not the legal power I speak of. Then I say that the court will not in a doubtful case, suppose that this company had compelled themselves to guaran- tee an act which they had no power to compel. But this suit itself proves that this construction is not correct ; for if the amount of dam- ages be referred to the engineer, the question of what damage, and whether any, was submitted to him. If he has not certified any dam- age it cannot judicially appear to this court that there was any damage, for he is the only judge. If we are to infer any thing from the want of a certificate, we should presume that the engineer had done his duty, and determined that there was no damage. In relation to deviations, prices, compensation, prosecution of the work, and finally all matters of dispute, the engineer was made the umpire. This shows the object of the parties in relation to this clause also. J. M. Clayton, for the plaintiff. First. The clause of the contract declared on in the seventh count does amount to a covenant, and a covenant that may be sued on. Second. The clause in the eighth count is not a mere reference, nor a covenant binding equally on Randel as the company; but a covenant peculiarly obligatory on the company. If this be not so what is the meaning of that clause of the contract where the company recognizes an obligation for other purposes than to pay for work already done. " And such determination shall alto- gether exonerate the said party of the second part, from every obli- gation imposed on them by the said contract, except to pay as afore- said for work already done." Now take up the whole contract and construe it upon the principles laid down by the other side, and no such obligation can be found. But here is a distinct recognition of other obligations, which must arise from the clause now in dispute, or they cannot be found. Ingenuity can't change the record; so- EANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 161 phistry cannot expunge words; and if the construction on the other side can't stand with the whole instrument it must fall. Now as to the seventh count and the general demurrer. The Attorney General defines " take " to be to hold, agree to, deem or fix upon. We are satisfied with this definition. He admits that ac- cording to this definition, the meaning of the clause is that Eandel should have four years to complete the work in ; and that the company should not hold or deem the time for that purpose to be less : we as- sign a breach that the company did deem or hold the time to be less, and did not allow him the four years, and yet they call this a legal abstraction and no covenant. I do not contend that this covenant al- lowed Eandel the four years whether he was progressing towards its completion or not, but only that it allowed him that time, unless the contract was abandoned by them in due and legal form. If they un- dertook to judge of the progress of the work, they were to do so on the legal evidence ; and that was only upon the certificate of the engineer. Covenants must be construed so as to support each other, not to de- stroy each other. Upon this principle we can reconcile the abandon- ment clause with the clause in question. The company were author- ized to nullify or abandon the contract for the negligence of the con- tractor. This negligence was to be ascertained in a certain way, and the rule of evidence was prescribed. They were constituted the judge of this matter according to a fixed rule which must be followed. If they dissolve the contract on this evidence, it avoids all the covenants as well that of not taking the time to be less than four years as the others, except only the covenant to pay for work already done : but if they undertake to drive off the contractor and prevent his proceeding in the work without following this rule, they arbitrarily take the time to be less than four years, and thus break their covenant. With this construction both the clauses stand ; without it, the power of abandon- ment swallows the other; or it merges this. We do not then, as the counsel supposed, contend that the company could not take the time to be less than four years, even though Eandel were not doing any thing; but we do contend that they have but one process, and that is by abandoning the contract as stipulated in the contract. Negligence of the contractor only authorizes their interfering to stop him; no such negligence can be set up unless it has been certified by the en- gineer ; and any interference on their part to prevent the execution of his contract within the four years, unless justified by this certificate, is unauthorized on the part of the company ; is taking the time to be less than four years, violating the contractor's right to carry on the work during all that period, and a breach of their covenant to allow him that time. The counsel savs this is damnum absque injuria: that if they drove Eandel off, it was not taking the time to be less, &c. Surprising! One covenants, even according to the gentleman's own admission, to give another four years to do a piece of work, and kicks him off the next day, it is no breach of his covenant but a mere ab- straction. The causes of special demurrer to this count. They complain that it is not shown in what manner they took the 21 162 RANDEL, Jux. vs. CUES. & DEL. CANAL COMPANY. time to be less, &c. I answer we are not bound to show it. Nothing is better established thaii that you need only negative the words of an affirmative covenant ; and vice versa, where the facts rest in the knowl- edge of the other party. Where the matter lies more properly in the knowledge of the other party, the breach may be assigned generally in the words of the cov- enant. And here the acts by which they took the time, &c., are in their knowledge. 8 East 81, 4; Step. Plead. 414; 9 Co. Rep. 60, Bradshaw's case. 1 Wheat. Selw. 375, where all the cases are collected. There are but three exceptions to this rule, where the breach may not be assigned in the words of the covenant. These are first, where the plff. counts on a covenant for quiet enjoyment. He must show that he was evicted by lawful title, and a mere general assignment would be bad ; second, in covenants against incumbrances, the breach must show that the incumbrances were lawful; and, thirdly, the co- venantee in covenants of warranty, must show by what title he was evicted. These are the only cases in which the breach may not and ought not to be assigned in the words of the covenant. Com. Dig. Plead, c. 45, 47; 1 Lord Raymond 107; 1 Lutw. 329; 3 Mod. 69; 2 Show. 472 ; ditto 442 ; 1 Chit. Plead. 326. The case in 2 Cro. Jac. 486, Mills vs. Astel, is not law ; it has been overruled again and again. See 8 East 81; 2 Show. 472. 442. So. the case in Douglass 214, Jones vs. Williams, has been repeatedly over- ruled, and is not regarded as law. 8 East 81 ; 1 Bos. & Pul. 642. Less particularity is required where the facts lie especially in the knowledge of the opposite party. Steph. Plead. 414; Com. Dig. Plead, c. 26; 2 Mass. Rep. 433; Marston.vs. Hobbs. Parsons, Chief Justice, notices the three cases already mentioned, as exceptions out of the general rule. As to Bishop's case, that was an action of debt on a bond with a collateral condition. The statute of William and our own statute re- quired the assignment in such actions to be very special. These are governed by the requirements of the statute, and are distinguished from actions of covenant. 8 Johns. Rep. Ill ; 1 Lord Raymond 478 ; Douglass 215; 1 Wheat. Selw. 376; Lord Raymond 107, (Bed vide 1 Chit. Plead. 329J I come now to the demurrer on the eighth count. The question is whose covenant is that contained in this clause? Is it a covenant at all ; or merely a reference ? In the first place I say that the construc- tion given it on the other side destroys a material part of the contract as noticed under the last head. My idea of this clause is that it is a covenant that the company's engineer shall certify the amount of dam- ages, and that this is as much their covenant as the agreement to pay the amount so certified. The engineer is the company's agent ; his cer- tificate is necessary to enable the contractor to get one cent, and yet they contend that the company have not engaged that he shall make this certificate, and that his refusal to do so is only the refusal of an arbi- trator and the subject of no action as against his principal. In other parts of the same contract where the parties submit any matter to the engineer as a common umpire, they do it expressly by that name, but RANDEL, JUN. vs. CHES. & DEL. CAJS T AL COMPANY. 163 nere, different language is used, and it is agreed that the company's ^ngineer shall certify the damage. Again, if this be a reference, what .s to be done with the express and sweeping reference at the end of the contract of all matters in dispute to the engineer in chief. Now the engineer in chief was a different person from the engineer for the time being, or resident inspector, and if the first be a reference, there is a reference of the same thing to two several umpires. And if they were the same person it would be a double reference of the same sub- ject matter. This cannot be so; the first is not a reference merely, but a covenant by the company. It is not to be supposed that Randel or any man of ordinary prudence, would refer such immense interests to the mere creature of the other party, a petty surveyor, not even the engineer in chief, an agent appointed by them and removable at their pleasure, without some security that he would act, if not with im- partiality, yet so that he might derive some remuneration for his labor. That security he had in the obligation of the company that their officer should grant some certificate whenever damage accrued. Feeble to be sure was the security, but the very weakness of this protection shows that he was not willing wholly to abandon himself to their tender mercies. However much the contractor might have been in- terrupted and delayed by the company from the causes specified ; and however great the damage that might thus have accrued, he could obtain absolutely no redress without this certificate ; and with it only such as that officer should please to consider a compensation. To sup- pose that the company did not engage for his making the certificate, would be not only to do violence to the contract itself, but to the plain- est principles of common sense and the most ordinary exercise of human prudence. For many years the courts have been leaning in favor of a liberal construction of covenants, (1 Bos. & Pull. 565, 574;) here the court is called on to shut up a covenant and turn it into a reference upon principles of technicality that would have astonished a black-letter judge. As to the special causes of demurrer. It was not necessary to al- ledge the pecuniary damage. The contract is not that when damage should arise the engineer should certify ; but that when Randel should be prevented from pursuing the due and best mode, &c., the certifi- cate should be made of the damage. Obstruction could not take place without damage, and the contract proceeds on that admission. 8 Johns. 86, (111,) Smith et. al. vs. Janson. As to all that part of the Attorney General's argument which insisted on the necessity of our setting out the acts by which the company prevented Randel from pursuing the due and best mode of executing his contract, I shall not reply further than by referring to the authorities heretofore cited in relation to the assignment of breaches in the words of the covenant. Before the plaintiff's counsel proceeded, Mr. Jones, for the defts., asked leave to cite some additional au- thorities on the subject of assigning breaches. The facts charged as constituting the breach must be plain; they must appear to the court to be such that if true, they undoubtedly 164 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. constitute a breach. We shall contend that there are no special ex- ceptions to the rule of assigning breaches. Every case must depend on its own circumstances. The breach must state so much as to give the other party notice of what is relied on as a breach; the acts, or facts; not conclusions; and such as shall appear to amount to a breach of the covenant. The three cases mentioned are not exceptions because they are cases of warranty, &c., but because they are such where the nature of the covenant requires a particu- lar specification of the breach. So in all cases where the covenant is of this character. The old distinction between setting out breaches in actions in bonds with a collateral condition, and breaches of cove- nants, is abolished. There never was any distinction in reason, and there is now none in authority. It must in the nature of things be that it will depend on the nature of the covenant itself, whether a breach merely in the words of the covenant will be sufficient. 1 Chit. Plead. 329-30; 5 Bac. Ab. 18; Pleas. & Plead. 7 Price 550; 9 do. 43; 13 Petersdorf Abridg. 368, (257;) Comyn's Rep. 228; 7 Petersdorf 347. C. J. Ingersoll, for the plaintiff. From Bradshaw's case down to the cases in 8 Johns, and Mass. Rep., the general rule has been that if the covenant be general, the breach may be general. If this be an exception to that rule it is for the deft, to show it. The breach may be general, especially where the knowledge of the manner of it is in the other party. To the cases cited by Mr. Jones we answer that the matter pleaded was peculiarly in the knowledge of the party pleading. There was a necessary fact be stated; and the principal case was a covenant for quiet enjoyment, and comes within the excepted cases. What are the standards of a good breach? First. Notice to the party of the matter relied on ; not of the evidence to prove that mat- ter. Second. Notce to the court. Enough must be placed on the record to bar another suit for the same cause. The causes of demurrer are first, that there is no issuable fact pleaded. We say "you did take the time to be less than four years : " and " you did not furnish a certificate of damage " are not these issuable facts? But the,y inquire, how did we take the time? Mr. Frame's explanation of taking the time to be less, is deeming it to be less," &c. I agree to the definition and say you deemed the time to be less than four years, contrary to your covenant. We can't tell them how ; if it be a corporal act, they did it ; if a mental operation, they conceived it; one or the other, it is a damage to us, a breach of their covenant, and the manner in which it was effected being in their knowledge, we are not bound to state the evidence by which we intend to prove it. And as to the certificate of damage. The pivot of this matter is the obstruction. If Randel was prevented by the company from pursuing the due and best mode of doing the work, the damage is inevitable it results of course and need not be stated. The certificate was the thing covenanted for, and the neglect to grive the certificate is the breach. In deciding upon the general demurrers, it is only necessary to ascertain the meaning of the contract ; that is, the intention of the RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 165 parties as expressed by the contract. It may properly be divided into twelve clauses: 1st. Randel is to do the work. Here he is the covenantor. 2nd. The company is to pay for it. Here they are the covenantors. 3d. The agreement for revising prices ; which is a mutual covenant. 4th. The covenant for inspection of work. 5th. The ten per cent damages. 6th. A covenant in case of Randel's death in relation to ten per ct. 7th. The abandonment clause. 8th. In relation to altering the plan of the canal and conforming thereto. 9th. Covenant in relation to payment in full for the work when finished. 10th. The prevention clause now in issue. llth. The clause relating to the time allowed for doing the work: also in issue. 12th. The clause of umpirage. In all the clauses except the 9th and llth, Randel is more or less placed in the power of the company's engineer. It is to be remarked that the company acts through this agent: that for these purposes they are identical the engineer is the company. We regard the company, then, in stipulating for these acts of their engineer as en- gaging that they will do such acts by their engineer. What were the respective duties of the parties. Randel was to dig a canal. The company were to furnish the ground and prevent intrusion or in- terruption. By whatever means then Randel was interrupted or de- layed, damage was the necessary consequence, and the only question was as to the mode of ascertaining the amount of that damage. What was the contract ? The company kept the power in their own hands ; they resolved that these damages should be fixed only by their own officer, and in the nature of things as well as in the language of the contract they engaged he should certify some damage whenever dam- age accrued. If he certified only one dollar for a hundred Randel vas remediless, but they were bound to have the certificate made. They call it a reference, and thus set up a new tribunal of judgment. If so they must show it. If Randel has relinquished his right to go to a jury to ascertain his damages; and committed his interests to the keeping of the agent of the company, it is but reasonable the com- pany should be bound that their agent should do that without which the plff. could have no remedv. If it be not so, they ought to show it clearly. To suppose that Randel should give to this engineer the power of fixing the amount of damage, and bind himself to seek no redress but on the certificate of the engineer, without anv obligation on the company to cause such certificate to be made, would be to suppose he was insane. But how can this be a reference? when the same subject is afterwards expressly referred to umpirage ; and when this referee cannot but report against the company. The truth is the company made themselves, through their agent, the judge of the damage and were bound to certify it. Then as to the clause in respect to the time. This must be con- strued in connexion with the clause authorizing the companv to avoid the contract. By the latter the company or their engineer is made 166 RAXDEL, JUN. v*. CHES. & DEL. CANAL COMPANY. the judge of Handel's diligence in prosecuting the work; by the for- mer that diligence is referred to time and the company agrees not to take the time to be less than four years. While then Handel is pro- ceeding with reasonable diligence in reference to this period the con- tract cannot be abandoned or the company violates the covenant not to take the time to be less, &c. The word take must have a sensi- ble construction referrible to the subject matter of the contract and the connexion in which it is used. No word has a greater variety of significations. Webster has four columns of interpretations. It means here to ascertain, consider, judsre of, or deem the time. George Read, jr., for the plaintiff. The first question to be settled is, is this a covenant in relation to the time? There is no magic in the word. Nothing is required to make a covenant but a seal. Any thing under seal evidencing an agreement to do or not to do a thing is a covenant. The word cove- nant need not appear. Even a recital to an article of agreement has been construed into a covenant when the intention of the parties ap- pears to have been such. 1 Saund. 320; Levinz. 274; 1 Sidf. 223; 6 Finer 381 ; 2 Mod. 87 ; 8 Com. Law Rep. 373 ; Saltoun et al. vs. Houstoun et al. The inquiry is " what was the object of the par- ties." If this amounts to a covenant, whether it be expressed as a proviso, exception or otherwise, it will be construed as such. An agreement on the part of the plff. may be construed into a covenant on the part of the deft, if such was the intention. 1 Leonard 324. This court will therefore look into the whole agreement, consider the relation of the parties, and the subject matter of the compact, and having discovered their intention will construe the clause in ref- erence to such intention. What then is this clause in relation to time ? Is it a stipulation, an agreement ; does it confer any right, or impose any obligation ? Has it in fact any meaning ; or is it a sense- less confusion of words ; an abstraction ; a mere nothing. The court cannot so construe it ; they can't fail to consider it an agreement ; and if an agreement it is a covenant. The law makes it so, and regards not whether it be more appropriately called a reservation, stipula- tion, proviso or agreement. The company promise, engage, agree that they will not take the time to be less than four years. They had the power of determining the contract in a certain manner ; this was to be done by a discretionary act ; they had to interpose an agent in the exercise of this discretion. Append to this, as the only protection Handel had, they stipulated not to take the time to be less than four years that is, they agreed to give him four years, preserv- ing at the same time the privilege of abandoning in case of his neg- ligence. Their engineer could thus measure his diligence only in reference to the time allowed. This then is an important clause; a covenant on their part. The legality of the abandonment is not now in dispute nor is it to be considered; it goes to a jury upon other issues. Without setting up that power as an excuse the question now is whether the driving Handel off within the four vears is a violation of this covenant to allow him four years. But it is contended that here is no covenant because third persons were interposed. Third per- sons ! The agents and servants of the company, identified fully with the company ; stipulated for by the company, and responsible to the RAXDEL, Jux. m. CUES. & DEL. CANAL COMPANY. 167 company. In relation to these covenants the company acts necessa- rily by its agents, measuring work, certifying damage, certifying negligence &c. and the agent stands in place of the company. He is identified with them, and they responsible for him. As to the special demurrers. Sir James Mansfield says in relation to these points, that they are not much to the credit of the law as a science. The breach here is stated in the very words of the cove- nant; which, according to the general rule on the subject, is suffici- ent. We have shown the only exceptions to this rule. If there be other exceptions the defts. ought to show them. The present case falls as well within the reason as the letter of the rule, for the facts constituting the breach are within the defts. own knowledge. This rule, with the specified exceptions, has been recognized in the Su- preme Court of this country so late as 1817. 4 Dallas 436; 2 Whea- ton, 46, 62. Eighth^ count. Is this a covenant; stipulation or agreement? Is not this it; that upon a ministerial act to be done by their agent, and which they stipulate shall be done, the company covenant to pay Handel the amount of damages to be certified by that agent. I say ministerial act; within the line of his duty as engineer. He was not at liberty to decide but in a certain way ; nor could he decline the duty. What was the occasion of this stipulation ? It was not en- tered into in view of a dissolution between them and Randel, and the hostile attitude subsequently assumed. At the time of the con- tract difficulties and embarrassments existed between the company and the owners of lands through which the canal was to pass which threatened to impede the progress of the work. Randel foresaw that such impediment might be a serious evil to him, and being un- able to obviate it himself he protected himself under the agreement of the company that if he should be obstructed by their disputes with others they would pay him the pecuniary damages thereby sus- tained by him to be certified by their officer. By what officer? Not by any individual fixed on between them, but by whomsoever the company might have on the canal for the time being as resident en- gineer. Is it not ridiculous to call this a reference to umpirage where each party, selecting and agreeing upon an umpire, reposing confi- dence in the umpire, agree mutually to repose on his good faith and be bound for his proper action. And that too in a contract providing in another part for precisely such a reference in case of dispute. Rogers, for plaintiff. Important results depend on tho decision of these demurrers; for it mav be that if against a plff. it will be impossible for him to proceed. T therefore crave the indulgence of the court while I review some of the aiithorities and perhaps go ovor some of the ground heretofore occupied by my colleagues. 1 shall first consider the special de- murrers : And the question on them "is whether a general assignment nffirming an act stipulated against in a negative covenant is a suffici- ent breach. In assigning a breach you are not obliged to do so in the words of the covenant ; but may do it according to the legal effect : in which case it must be observed that the breach be consist- ent and according to the legal import of the covenant: and that it be not too large. Secondly. You may assign the breach in the words 168 HANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. of the covenant, and the only exception to the rule is where the denying or affirming the words of the covenant does not necessarily amount to a breach. The other side undertakes to extend these ex- ceptions, and they contend that the law is the same with respect to actions on bonds with a collateral condition and actions of covenant. The cases undoubtedly establish a distinction; but, if this distinction has been abolished, the rule in relation to covenants has been extended to bonds and not restricted, so that now it would seem a general assignment in either action would be sufficient. They say that a more particular assignment is necessary for the purpose of notice to them and to show the court that it amounts to a breach. The same objections would lie in every case and were taken in the case of Gale vs. Reed, 8 East. 81. The answer is that notice is unnecessary when the facts are in the knowledge of the other side. How is it on the authorities? All of them cited on the other side either fall within the general rule or are embraced by the exceptions which we have stated. The case in Comyn was on a covenant for quiet en- joyment; and so was the case in Pvtersdorf. 7 Price was a cove- nant for quiet enjoyment and to do other acts for the better secur- ing an annuity. In 9 Price there was a specification of an act of hindrance which the court decided did not amount to a hindrance. It does not therefore reach the general principle. Swift's dig. 664; 1 Salk. 139; Wils. Bac. Ab. cov't. I. p. 84; 1 Bos^ & Pul. 642; Comyn' s Rep. 228 ; 7 Petersd. 347 ; 7 Price 550 ; 9 lust. 43 ; 2 Saund. 178. The general demurrer. Do these clauses raise an agreement ? This they deny by their demurrer. They admit the fact stated and deny the law. Notice the clause " and such determination shall exone- rate the company from every obligation except to pay as afsd. for work already done.'* Now on the construction contended for, where are these other obligations? There is here a distinct recognition of other obligations besides the payment of money and we contend that these other obligations arise from the clauses we have declared on. Now suppose this contract had been unlawfully abandoned by the company will it be denied that Handel might have had an action against them ; and, if he could, upon what parts of the contract could he have sued except on the clauses now demurred to. And as to the ten per cent, reserved, amounting to near thirty thousand dollars, upon what could be found an action for that but on these clauses ? If he had finished the work, the certificate of the engineer was to de- termine the price; was there no obligation on their part that their officer should make this certificate, and had he no redress against the company in case of his refusal to do so. If he had anv it was on these clauses which are now demurred to as creating no legal liability. 8 Mod. 190; Doug. 518. Covenant by members of an association construed an individual covenant. 17 Com. Law Rep. 241 (6 Moore 199); Construed a covenant because the party could other- wise defeat the bond. 2 Mod. 266. So here if this be not a covenant of the companv in relation to their engineer's certificate, thev might deprive Handel of all his rights under the instrument, and escape from obligations directly assumed by that instrument. The rule is that whero the interpretation of a covenant is doubtful it shall be RAXDEL, Jux. vs. CUES. & DEL. (.'ANAL COMPANY. 1U9 construed most strongly against the covenantor. 1 New Rep. 78; 1 Selw. 370. Mr. Jones, for the defendants. The objects to be obtained in alledgiug a breach are, to satisfy the court that if the statement of the plff . be true, he has beyond doubt a cause of action: to confine the jury to a certain issue and not permit them to wander in the mazes of prejudice or opinion, or be lost in the mist of uncertainty, confused by the multiplicity of subjects brought to their view; and, thirdly, to furnish the party deft, with reason- able notice of what he is called upon to defend. ' I think the other side have made some mistake in their division of the subject into causes of general and of special demurrer. The ob- jections we have taken to these counts are all sustainable as grounds of general demurrer and I shall so treat them. I divide them into objections going to the foundation of the action, denying that the contract is susceptible of founding an action upon; and into objec- tions to the present mode of proceeding, equally fatal however to this present action. Let us first ascertain the precise legal effect of these clauses of the contract. I admit with the other side, that any agree- ment under seal is a covenant. We shall not contend about words, as we go upon a view of the spirit and intent of the whole contract in denying that these clauses constitute any ground for an action. The plff. in this case is the principal contractor. He was to do a great work; the company were to pay him, and to pay him in a par- ticular manner. Much of the argument has proceeded on the idea that the company were the principal contractors, when the reverse is true, Randel being not only " the party of the first part " but the prin- cipal party contracting. This only way in which the company is bound to pay is specified ; it is the law of the parties. In the 8th count it is agreed that the payment shall be on a certificate of the engineer. This Mr. Randel agrees to be the law of his contract and in no other way can he recover. Neither in a court of law or equity. The breach implies a neglect of duty in the engineer ; and it may be that an action would lie against Kim, or equity would compel him to do his duty; but it is not possible for them to get behind the engi- neer and bring an action to recover damages from the company in any other way than on a certificate of the engineer. No court can possess jurisdiction to make them pav in any other way. (Notices Andrews vs. Ellison et al. 17 Com. Law Pep. 24, cited on the other side; and Alcorn vs. Sarage, reported in the note to that case. Cites the case of Taylor et al. vs. Brewer et al. 1 Maule & 8 el. 290, as establishing the principle contended for. This case was not read by Mr. Jones, but he stated it to be a covenant to pay on the award of a committee and decided that it could not be recov- ered otherwise. Is it competent for the plff. to take these several clauses of one contract and mnke them separate covenants? Reads the "Prevention clause" Construes it a covenant to pay what the engineer awards. He is the umpire or arbitrator. Randel agrees to take his damaees in that wav and not otherwise; and they each agree and contract that the damages shall be certified in this 22 170 RANDEL, JUN. vs. Cims. & DEL. CANAL COMPANY. manner and that such certificate shall be final and conclusive. If it be the duty of either party to cause the certificate to be made it was equally the duty of both; the stipulation is mutual. Does the fact of this person being the engineer of the company affect this relation ? In a certain sense he is the agent of the company. He is their en- gineer appointed to do the duties of an engineer; but in reference to the matter now in controversy, he is equally the agent of both parties. If it be impossible to make the person who in his general duties is the agent of one of the parties an umpire in a particular matter between the parties what is to be done with the last clause of the contract which expressly appoints him such umpire by name? To take a proper view of the contract this individual must be regarded in two characters; as the agent of the company in some respects, and an independent, impartial judge and arbitrator in other respects. This additional character, this superadded entity, arises from the combined action of the canal company and Handel. He is the mutual agent of the parties, and each is equally bound for his conduct as they are alike bound by the result of that conduct. Randel indeed having, the greatest interest in the action of this umpire in relation to this certificate was peculiarly bound to see that such certificate was made. Yet they call him the agent of the company, and quote upon us the maxim qui facit per alium facit per se. This makes it a re- ference by both parties to one; and that, as they say, to prevent dis- putes between them. Strange indeed would it have been for these parties to enter into an important and narrowly guarded contract and to provide for the settlement of disputed and doubtful matters by a reference to one of the parties themselves. Logicians regard this argumehtum ad absurdum as conclusive; and the argument on the other side involves no less an absurdity. The truth is, here the umpire is not the agent of either party but of both. But it is said that this cannot be a reference to the engineer, because there is a subsequent reference. If this be so, where is the absurdity ? It would only follow that their were several persons appointed to make the same adjudica- tion; or, if the persons be the same, that the matter would be cov- ered by the last clause of reference. But the matters referred in the two clauses are not the same : and if they were, whether the first clause made the reference certain or not it is covered by the last and is thereby referred. There are many instances of covenants on which a breach cannot, in the nature of things, be assigned. Here is a covenant to pay the amount of the certificate and that the certificate itself shall be con- clusive. The last is as much a covenant as the first ; a mutual cove- nant ; but it is an executed and not an executory contract, and cannot be sued on. A breach cannot be predicated of it; it executes itself. The general rule in relation to assigning breaches is the same in every contract whether under seal or not; and in tort as well as in contract. What is the breach of this prevention clause? although he was prevented from pursuing, &c. Prevented, how? It is not so good as a general allegation that the deft, had not performed. They not only do not tell us the particular of the neglect but do not even inform us its nature. Take the case of a clerk who had given bond not to commit default ; would it be a good breach that he did commit KANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 171 default without stating the nature of the default ? And the gist of the breach is that the engineer had not certified the pecuniary damage when they have not even averred that any damage was sustained. But they say that damage necessarily arose from the prevention ; that it is inferable. This is making the breach argue, which it cannot. The facts must be stated and not inferred. In a declaration of tres- pass stating the most grievous injury you must aver damage ; and the reason is that facts must be stated and not left to inference however palpable. " Damages have not been certified " Non constat that damages have been sustained. The other side have laid down a general rule in relation to assign- ing breaches and have specified three exceptions. I deny the rule and I deny the specific exceptions; at least I deny that they are ex- ceptions because they fall within a certain enumerated class. They are exceptions on more general grounds of pleading, more general than their rule. All facts, however particular, which are necessary to constitute the breach must be stated; not the evidence to prove the facts but the facts themselves. The deft, must be notified by the breach with what he is charged. What notice is it to say, you have prevented me from pursuing the due and best mode of executing my contract ? Prevented, how ? By what act ; by what neglect ; by what manner of conduct ? The facts stated must be such that taking them to be true, the party has, necessarily, a cause of action; and they should present a certain issue. True, I find in the books limitations and exceptions ; but* not exceptions confined to particular cases but embracing particular principles applicable to all cases. One excep- tion is that where the statement of facts would lead to great prolix- ity a more general form may be used, but still the party must state the nature of the breach : after all, the latitude which may be allowed must depend on the circumstances of each case referable to the general principles of pleading before stated. They answer the case from Price by saying it falls within the class of exceptions being a covenant for quiet enjoyment. It does not relate to lands at all; and proceeds on the general principles stated. The same principles are well stated by Mr. Stephens in his very valu- able work on pleading. Stephens on pleading 381. Seventh count. In relation to taking the time : Here was a contract for doing a very large work. No time was fixed for its completion; a reasonable time would have been implied by the law ; instead of leaving Randel at the mercy of the other side in determining that reasonable time, since it is admitted the aban- donment power would have authorized them to do so, the parties agree to fix on a minimum or shortest period for that time. How can this be a covenant ; the foundation of an action ? It is a protec- tion and executes its own. purposes. It is a credit given to him of time, and can't be taken from him. Suppose an attempt to compel the completion within the four years; it must fail, for he holds up the contract. It is not a thing that can be taken from him. The breach is that the defts. " took the time to be less," &c., not specifying in what manner nor even explaining the meaning of the phrase, which is not very clear. Johnson gives one hundred and eigh- teen definitions to the word " take ; " Webster, we have been informed 172 RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. has four columns of interpretations. For my own part I cannot raise in my mind any distinct idea of taking time as the foundation of an action for the breach of a contract. The 47th definition of Johnson is to suppose; to understand or conceive in the mind; to conceive in thought or entertain in opinion. How can this be a breach of contract? Actus non mcns facit reum is the universal rule of law. But supposing this taking the time to be a breach of contract can there be a stronger instance of the uncertainty of a breach which is assigned in words that do not necessarily imply a breach but which in themselves as applied to a contract are almost unintelligible. If the phrase has a meaning that would apply to the contract so as to make a breach the party ought at least to have explained that mean- ing. If it alludes to a corporal act then that act should have been set out. If words be equivocal, having a meaning innocent as well as otherwise, they shall be taken most strongly against the pleader. The Court took time to consider the case, and intimated that they would express their opinion during the approaching session of the Court of Errors and Appeals; when The following opinion of the court was delivered by Mr. Justice Harrington : HARRINGTON, J. The questions on these demurrers involve a con- struction of two clauses of the contract entered into between Randel and the canal company, and also several points in relation to the manner of setting forth the breaches on these parts of the contract. The clause declared on in the seventh count is the following : (Time.) " And it is further understood and agreed as aforesaid that the time within which it shall be incumbent on the said party of the first part fully to perform and complete the said contract shall not be taken to be less than four years from and after the first day of May next ensuing." The meaning of this clause is the subject of present inquiry; the object with which it was introduced, the purpose it was intended to subserve, and the obligations which, according to the intention of the parties contracting to be gained from the whole instrument, it imposed. (Meaning it must have; an agreement it expressly pro- fesses to be : it must therefore receive a sensible interpretation giving it validity and force, if force it can have consistently with the other parts of the contract. At the first reading of this clause it is apparent that it was designed to afford a protection to the person who was about doing the work; and, though the expression is "the time shall not be taken," the meaning is clear that the canal company shall not take the time, &c. for it would be idle to make Randel stipulate against doing an act to his own prejudice. The word " agree " in a deed will make a covenant; and, though in the connexion it is applicable to both parties, it may be referred to that party upon whom the doing or not doing the thing agreed upon devolves. Thus in Holder vs. Taylor 4 Cruise 448. If a lessee for years covenants to repair, &c. provided always, and it is agreed, that the lessor shall find great timber, this is a covenant on the part of the lessor to find the timber, and not KANDEL, Jux. vs. CUES. & DEL. CANAL COMPANY. 173 merely a qualification of the lessee's covenant. 1 Roll. Abr. 518; 6 Viner 381, Tit. Cov't. C. 22, 23, &c. Upon the same principle the agreement here, referred, as it must be to the canal company, is a covenant on their part that they will not take the time within which it shall be incumbent on Handel to complete his contract to be less than four years; or, in other words, that they will allow him four years for the completion of the work. Thus far tin-re is no difficulty in attaching a sensible meaning to this part of the contract : but it is said that this cannot be the true construction since the canal company an- by another part of the con- tract expressly authorized, on a certain event, to declare the whole contract to be abandoned, and thus virtually to shorten the time al- lowed by this construction for the completion of the work, and, as the power to put an end to the work within the four years is expressly given, it is forcibly argued that the clause in question cannot be con- strued into a covenant to allow the four years. If it be true that these parts cannot stand together we must look for some other mean- ing to that one which is the subject of construction; but let us see if they cannot be construed together so as to harmonize and each have force, ut res magis valeat quam pereat. The clause in the contract that authorizes the canal company to annul it precedes the clause now under consideration; and the latter appears to be rather a qualification or restriction of the former. That is as follows : And it is further agreed that if the opinion of the en- gineer in chief for the time being, in the employ of the party of the second part (the canal company) shall be that of the party of the first part refuses or unreasonably neglects to prosecute this contract, such engineer may certify the same to the said party of the second part, and, on his certificate, the said party of the second part shall have the power of determining that he has abandoned it ; and such determina- tion shall altogether exonerate the said party of the second part from every obligation imposed on them by the said contract, except to pay as aforesaid for work already done. This affords a key to the phrase " shall not take the time " &c. about which there has been so much refining. The company were author- ized to judge of the diligence of the contractor, and by necessary consequence to determine the time necessary for him to complete the work. In reference to this powtr they add a covenant that they will not take the time for this purpose to be less than four years. And a very reasonable stipulation is was, even though the company still retained the power to judge of the diligence of the contractor, and to turn him off for unreasonable; negligence. Time enters ma- terially into this question of diligence, and without restriction in point of time the company might have required of Randel such ex- traordinary diligence as to complete the work in a much shorter pe- riod than four years. The provisions stand well together. The plff. undertook to make and complete a certain stipulated portion of the canal, and the defts. undertook to compensate him for the work in a specified manner. It was a work of great labor on the part of the plff., and it was all important to the defts. that it should be com- pleted in a reasonable time ; and therefore they introduced the clause in the contract, that if the engineer in chief should be of opinion that Randel unreasonably neglected to prosecute the work, and 174 RANDEL, Jux. vs. CHES. & DEL. CANAL COMPANY. should certify that opinion, they, the canal company, should have the power to declare the contract abandoned, and thus to annul it. And, on the other hand, as the work which the plff. had undertaken to perform was one of great labor, requiring large expenditures of money and the necessary consumption of considerable time, it was deemed proper for his security to insert the understanding and agree- ment " that the time within which it shall be incumbent on the plff. fully to perform and complete the said contract, should not be taken to be less than four years from and after," &c. This is obviously not a mere covenant on the part of Randel, that he would complete the work within the time. If that only had been the intention of the parties, a different form of expression would have been used. The defts. say it is not a covenant on their part which binds them to any thing. Why was it introduced, forming as it does a distinct clause in the contract, if it were not intended to be binding on the party using the language to some efficient purpose ? It is obviously not the language of Randel to the canal company. If it was designed merely as his covenant to the company to complete the canal within four years, other words would necessarily have been used, such perhaps as these: it is agreed that the said John Randel shall complete the work within four years. On the contrary, the words employed in the instrument are, it is agreed that the time within which it shall be incumbent on him fully to perform and com- plete the said contract, shall not be taken to be less than four years. Who speaks this? The canal company. Then for what purpose is it spoken? In a solemn contract under seal, we are not to reject these words as senseless and having no meaning, as a mere abstrac- tion as it has been called at the bar, not binding upon the party using them to any efficient purpose, or to any beneficial end to the party to whom they are addressed. In no case shall words be rejected as senseless, if a meaning can be attached to them consistently with the intention of the parties. This is a distinct, separate and inde- pendent clause of the contract. We may therefore infer that it was deemed important by the parties for some end or purpose. They had some design and intention; and it is our business to ascertain this intention, not from this isolated clause only, but if necessary from the whole instrument, and according to the reasonable sense of the words. If there be any ambiguity then such construction shall be made as is most strong against the covenantor, for he might have expressed himself more clearly. The meaning of this clause we con- ceive to be simply this, that the canal company undertook not to do any act by which this contract should be taken out of the hands of the plff. nor would declare the contract abandoned, nor compel him to leave the work short of the stipulated time, unless the engineer should be of opinion and certify that he refused or unreasonably ne- glected to prosecute the work. In that event, and in that event only, could they declare the contract abandoned and annulled, and proceed to dispose of the subject matter, (to use the language of the instrument,) in the same manner as if the contract had never existed. When the plff. undertook to perform this work, and the defts. agreed to pay him the stipulated price, he acquired certain rights which the canal company could not violate with impunity. From the perform- KANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 175 ance of this contract he might have acquired great profits. That he believed the contract to be advantageous is evident, or he would not have entered into it. Without this stipulation as to time, the law would have given him a reasonable time to execute his contract; but he did not choose to rely upon this, but stipulated for a given time. The time therefore, became the agreement of the parties, and every agreement under seal is a covenant, for the breach of which this ac- tion will lie, and all other remedies are extinguished. For where a party agrees under seal to do or forbear to do a thing, the action of covenant is the only remedy for a violation of the agreement where damages are unliquidated, and depend in amount on the opinion of a jury, and all other remedies are excluded. With this understanding of the contract the breach sets forth that the said company did, &c., " take the time within which it should be incumbent on the said John Kandel, jun., fully to perform and complete the said contract to be less than four years," &c., and to this the defts. not relying on any certificate of negligence and con- sequent abandonment of the contract admitting the facts demur in law, and present the question to the court whether the plff. on the present state of the pleadings has shown a legal cause of action. Ac- cording to our construction of the contract he has. We have seen that the canal company covenanted not to take the time within which Eandel should finish the work, to be less than four }'ears; that is, according to our construction, to give him four years to do it in; he at the same time agreeing to use the necessary diligence for that pur- pose, and that the engineer of the company might certify the want of such diligence, and upon his certificate the company might avoid the contract. Without such certificate and avoidance the company were not authorized to abridge the time, or take it to be less than the time specified, and the doing so is a breach of their contract, ac- tionable in law. We are next to consider whether the breach of this covenant is set out with sufficient certainty. The special causes of demurrer are " that there is no issuable fact presented by the said seventh count, and that it is not stated or set forth how or in what manner or par- ticular, or by what act or matter the said defts. did take the time within which it should be incumbent on the said John fully to per- form and complete his said contract to be less than four years," &c. The general rule on this subject is that the breach may be assigned in the words of the covenant, if such general assignment necessa- rily amounts to a breach. This qualification, which however i$ not usually appended to the rule as laid down in the books, embraces all those cases which are admitted to be exceptions to the general rule; that is, they are cases where a general negation of the words of the covenant would not necessarily constitute a breach. 1 Wheat. Selw. 375; 8 East 81-4. And there is another important rule equally violated by the excepted cases, that more particularity is required in assigning the breach where the matter rests peculiarly in the knowledge of the party pleading. Thus in covenants for quiet en- joyment, and of warranty, the general assignment is insufficient, for it doth not appear that the party was disturbed or evicted by lawful title; and it lies peculiarly in the knowledge of the party alledging 176 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. the eviction to show by what title he was evicted. So in covenants against incumbrances. The assignment should place sufficient on the record to show the court that, if true, it amounts to a breach of the covenant; and to give the other party reasonable notice of the matter relied on, not of the proof of that matter, but of the thing to be proved. The first is done whenever a general negation or affirmance of the words of the covenants amount to a breach; particularity in the last is excused where the matter lies properly in the knowledge of the other party, or where it tends to great prolixity. Recurring to the construction we have given to this part of the agreement, it will appear that the covenant of the company in effect is to allow Randel four years for the completion of this canal, with a certain qualification not now necessary to mention. The breach of this covenant is that the company did not allow him the four years, and this presents an issue proper for the consideration of a jury. At all events it amounts, if true, to a breach of the covenant, and as the facts constituting the breach are entirely within the knowledge of the defts., the purposes of notice to them do not require a more par- ticular statement. We here leave the words of the contract and of the breach, and substitute what we understand to be their meaning; but it differs not whether the assignment is that the company did not allow four years, or did take the time to be less than four years. (Prevention.) That part of the contract declared on in the eighth count is as follows: " And it is further agreed as aforesaid that in case the party of the first part shall, from the defatilt of the party of the second part in any particular, be prevented from pursuing the due and best mode of executing this contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof shall be certified by the engineer of the party of the seteond part for the time being; and, on his certificate which shall be final and conclusive between the parties, the party of the second part shall make to the party of the first part such reasonable compensation and allowance as by the said certificate may be ascertained and fixed." The breach assigned on this clause is, that, although Randel was from the default of the company prevented from pursuing the due and best mode of executing the said contract, the pecuniary damage sus- tained by him in consequence thereof hath not been certified by the engineer of the said company for the time being: and the sufficiency of this breach, in a general point of view, depends on the question whether the above clause amounts to a covenant on the part of the company that their engineer should certify this damage whenever it should arise, or whether it is a reference by both parties to a com- mon umpire. In looking through this whole contract it is to be ob- served that the canal company have generally shielded themselves by confining their responsibilities to the adjudication of their own engineer, who is frequently made the sole arbitrator and umpire eo nomine; and in this instance also, they have limited the amount of their liability to the certificate of that officer. But the question here is whether, in a given case arising from their own default, and where Handel's redress was confined in amount to the certificate of their KANDEL, Juisr. vs. CHES. & DEL. CAXAL COMPANY. 177 officer, they have not covenanted that such officer should do that without which Raiidel could have no redress. The damage to the plff. arises from the default of the company. The amount of that damage is to be ascertained by their own officer; appointed by them, responsible to them, and removable at their pleasure. Handel agrees to be bound by this; it is his contract and, prudent or imprudent, he must abide by it; but is it to be conceived, is it a sensible construc- tion of the contract, that he relied on this remedy, thus restricted, without any obligation on the part of the company that their agent should certify at all. Unless the words of the contract clearly con- vey this meaning, the absurdity of the arrangement would prohibit such a construction. Those words certainly do not require such a construction; if indeed they do not directly favor the opposite posi- tion. It is agreed that in case Eandel shall from the default of the company be prevented from proceeding in the best manner, the pe- cuniary damage shall be certified by the engineer of the company for the time being, &c. The effect of the certificate is afterwards defined; but on these words either on a fair reading of the single sentence, or connected as it should be with the context in a reason- able construction of the whole contract, it does amount, in our view, to an agreement on the part of the company that their engineer should certify the damage in case any such arose from their default. This construction moreover derives force from the clause almost im- mediately following, wherein a reference to arbitration is expressly made of all matters of dispute or difference in opinion in relation to the contract or arising under it. The subject matter of this clause was not suitable for reference; a dispute in relation to it could not have been anticipated; it was agreed by both parties that in case of damage from certain specified causes, the amount thereof should be ascertained by certificate; and as EandeL agreed that ,the agent of the other party might make that certificate, and that he would be bound thereby, it reasonably if not necessarily followed that the company engaged the certificate should be made. If this be the meaning of the contract, the breach thereof is well assigned in the words of the covenant according to the principles be- fore stated, and which are fully recognized in the case of Gale vs. Reed. 8 East 80. The breach in that case is strikingly similar to this. The deft, covenanted to employ exclusively the plff. to make cordage for his friends, and not to employ any other person, nor to carry on the business of rope-maker, &c. The breach was that the deft, did carry on the business of rope-maker, &c., and made cordage for divers persons, &c., and did not nor would employ the plff. to make such cordage but neglected so to do, and employed divers other persons, &c. The deft, demurred, assigning for cause " that plff. had not shown any and what particular person or persons for whom the deft, made cordage ; or any and what particular quantities or kinds of cordage the deft, so made 5 nor in what manner or &?/ what acts he carried on the business of rope-maker, &c. Lord Ellenbo- rough said the answer was that as the facts alledged in the breaches lie more particularly in the knowledge of the deft, than of the plff. there was no occasion to state them more particularly. So in this 23 178 HANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. case the causes assigned for demurrer are that it is not stated in what particular matters or things the alledged default of the said defts. consisted, took place or existed; or how or in what manner or by what act of the said defts. the said John was prevented from pur- suing the due and best mode of executing his contract. The answer isi, that these facts lie more properly in the knowledge of the defts. 1 han of the plff ., and need not be stated with more particularity. Another ground was taken in the argument, though not assigned in the demurrer, against the sufficiency of this breach; that there is no averment that Kandel had sustained any damage by being thus prevented from pursuing the due and best mode of executing his con- tract. To this it was replied that the damage was a necessary con- sequence upon the prevention, and was to be inferred. But this is deducing from the facts stated, another fact material to the breach, and without which the breach is not perfect. It is true that the failure to certify and not the failure to pay, is the gist of the com- plaint; but how does it appear from the facts here stated on this re- cord that there was any damage sustained, or any to certify? The covenant is, as we have construed it, that in case Randel should, from the default of the canal company, be prevented from pursuing the clue and best mode of executing his contract, &c., their engineer should certify the pecuniary damage sustained by him in conse- quence thereof. Now how does the allegation that he was so pre- vented, and that the company's engineer did not certify, cover the whole ground without an averment that damage was sustained. The engineer was not by the contract, to certify damage as the neces- sary result of the prevention, but only " the pecuniary damage sus- tained in consequence thereof; " and though it may be true that the plff. was prevented as he alledges in his breach; and though damage may be the probable consequence of such prevention, yet it should have been stated that such damage was the consequence of and did arise from the prevention to bring the assignment within that rule l>efore alluded to, which requires that so much should be placed on record as that if true, there must have been a breach of the cove- nant, and the plff. must have a cause of action. An important' fact is here left to be inferred, and the breach is consequently not well assigned. That fact is essential to the plff' s. cause of action, and the failure to aver it is bad on general demurrer. Judgment must be rendered against the demurrant on the seventh count, and in his favor on the eighth. And let these judgments stand-; as both sides have heretofore been allowed to amend repeatedly; and they have come down to the argument and to juderment on these demurrers with their eyes open. There will never be an end to this cause if the parties are to demur when they please, and amend as often as the demurrers shall be ruled against them. The counsel for the canal company moved for leave to withdraw their demurrers and to plead over, which was refused by a majority the court without argument, (a) (a) Tidd lays down the rule to have been formerly that after a demur- rer the court would not permit an amendment without the consent of the adverse party. But he says that rule is relaxed, and it is now settled KANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 179 (Judgment.) The judgment on the demurrers was entered in the following form: " This cause having been set down for argument at the May term 1833, on the demurrers to the fourth and fifth additional counts in the plffs. declaration, being the two last counts in the said declara- that after demurrer and joinder, either party may amend of course; and even where the proceedings are entered on record and the demurrer has been argued, the court will give leave to amend where the justice of the case requires it, and there is any thing to amend by. But this is alto- gether discretionary in the court, and it is not usual to amend after de- murrer argued, and the opinion of the court is known. 1 Tidd's Prac- tice 656 ; Hardwick 171 ; 1 Lord Raymond 668 ; 2 Strange 734, 954, 976 ; Hardwick cases, &c. &c., vid. infra. Jordan vs. Twells, Cases Temp. HardwicTc, 171, where the plff. has lost a trial the deft, will never be admitted to amend his plea. Crockett vs. Jones, 2 Strange 734. After argument on demurrer the plff. was allowed to amend his replication by entering continuances. Hales vs. Hales was cited where such an amendment was refused by C. B. Bed Per Cur. The authorities of our own court warrant it, and let the replication be amended on payment of costs. Bishop vs. Stacy, 2 Strange 734. " After a special demurrer and joinder and argument, the plff. had leave to amend the bill upon the file. And this was granted upon debate." Rex vs. Ellames, 2 Strange, 976; more full in Cases Temp. Hardwick 42. In formation in the nature of a quo warranto against the deft, as mayor of Chester. He justified under a charter by which the mayor is to be chosen by the citizens of Chester and suburbs; and laid his election by a majority of the citizens of Chester. Demurrer and joinder: and when the case came into the paper, deft's. counsel moved to amend by inserting t\\& suburbs, and showed by affidavit that the prosecutor had not lost a trial, &c., " and after long debate and many cases cited, the court gave leave to amend and chiefly for reasons peculiar to this case." Robinson vs. Rayley, 1 Burrows 321. In this case, which is also cited by Tidd, the court refused the leave to amend. Douglass 330 and 620 are both cases of special demurrer merely. Solomons vs. Lyon, 1 East 372. Deft, pleaded a sham plea; plff. re- plied and deft, demurred specially. The court here allowed plff. to amend because the plea was a sham one, and in Pierce vs. Blake, Salk. 515, they threatened to fine an attorney for false pleading. After argument on demurrer, plff. moved to amend his narr, which was granted, the merits of the case not coming in question on the argu- ment, only the form of the pleading. Secus, after argument on the mer- its and nothing to amend by. Barnes 9 ; Impey 297. Sayer's Rep. 117. In an action against bail the court refused to give leave to withdraw a demurrer and amend, after the demurrer had been argued and the opinion of the court known. Giddins vs. Giddins, Sayer's Rep. 316, cited in Tidd, and mentioned in Burrows' Rep. as a case of amendment after the opinion delivered; was after argument only. It was on a special demurrer; the court had given no opinion and the rule was made absolute without defence. Abercrombie vs. Parkhurst, 2 Bos. & Pul. 480. On general demurrer, the court gave their opinion against the demurrer and refused leave to amend. 180 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. tion, on the day assigned for argument thereof, to wit: on the Satur- day of the first week of the said term here conies as well the said John as the said The Chesapeake and Delaware Canal Company, by their attorneys aforesaid, and on motion of the attorney of the said company desiring further time, a day further is given to the par- ties aforesaid here until the Saturday next after the said day so as- signed for argument as aforesaid, and during the said term ; on whioh day here comes as well the said John as the said The Chesapeake and Delaware Canal Company by their attorneys aforesaid, and here- upon the premises being seen and by the judges here fully under- stood, and the said demurrers being fully argued on bith sides by the said attorneys on the said day, and also on Monday, Tuesday and Wednesday of the succeeding week; and because the said judges here will advise themselves further of and upon the premises before they give judgment thereon, a day is further given to the parties aforesaid here until the ninth day of June next after to hear their judgment thereon, because the same judges here, thereof, not yet, &c., to which said last mentioned day the said court is for this purpose adjourned: on which day here comes again as well the said John as the said The Chesapeake and Delaware Canal Company by their attorneys aforesaid, to hear the said judgment: and hereupon the said premises being again seen and considered, and it appearing Hosier, &c. Ex'rs. vs. Lord Arundel, 3 Bos. & Pul. 11, 12. Special demurrer. The court expressed their opinion in favor of the demurrer. Shepherd then applied for leave to amend, " But the court said, this was not a case in which they ought to depart from a general rule that after argument amendments are not allowed" &c. Hamilton vs. Wilson et al, 1 East 391. General demurrer. The court expressed their opinion against the demurrer. " Holroyd then asked leave to amend, which (it being after argument on the demurrer,) was denied. And judgment for the deft." Cooke vs. Birt, 5 Taunt. 765; 1 Marsh. 333. After demurrer argued the court would not permit the plff., in an action against the sheriff, to amend. And where a plea was held bad on argument on a special demur- rer, the court of Common Pleas refused amendment although it was stated that the matter of the plea was a bona fide statement. 7 Moore 244; 1 Harrison's Digest 50. Fisher vs. Cowgill Ex'r. of Allston. Debt on testamentary bond sug- gesting breaches. Deft, demurred to the narr. After joinder but before argument Clayton asked leave to amend his narr, which the Supreme Court (Johns, C. 7.) refused. Kent, October term, 1830. Easton use Russell vs. Jones, post page Supreme Court, Newcastle, March term, 1831. After demurrer argued, and the court (by Harring- ton Chief Justice,) had pronounced their opinion, the deft's counsel moved for leave to plead over, which was refused. The demurrers in this case were general and special. Cubbage vs. York. Common Pleas, Kent, November term, 1829. The deft, demurred specially to the plffs. declaration; and, after argument, the court granted the plff. leave to amend because the defect was matter of form only, and judgment had not been pronounced. They said expressly that it was because the declaration was ill only on special demurrer. See the case of State use of Godwin vs. Collins, post. RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 181 to the said judges that the demurrer of the said company to the said fourth additional count, being the seventh count in the amended dec- laration aforesaid contained, which confesses the matters in the said count mentioned, to wit, the said contract or articles of agreement so set out on over as aforesaid, and the fact that the said The Chesa- peake and Delaware Canal Company did on the first day of October, A. D. 1825, to wit, at Newcastle county afsd. and on the oth day of June, A. D. 1824, and on divers other days and times between the day of the date of the said articles of agreement and the day of bringing this suit, to wit, at Newcastle county aforesaid, take the time within which it should be incumbent on the said John Randel, jun., fully to perform and complete the said contract to be less than four years from and after the first day of May next ensuing the date of the said articles of agreement, as the plff. in the said last men- tioned count hath declared; it seems to the said judges that the said fourth additional count of the said declaration as amended, being the seventh count of the said declaration and the matters therein con- tained are sufficient in law, for the said John to have and maintain his aforesaid action thereof, against them the said defts., as the said John hath above thereof alledged; wherefore the said John ought to recover, and the court doth hereby order and adjudge that he do recover his damages by reason of the premises and of the non-per- formance of the said breach in the said fourth additional count men- tioned against the said The Chesapeake and Delaware Canal Company, together with such costs as the law by reason of the premises will allow: but because it is unknown what damages the said John hath sustained on that occasion the judges who give this interlocutory judgment do, at the motion of the plff' s. attorney in this action, make an order in the nature of a writ of inquiry to charge the jury attending at the next court after the said judgment is given to inquire of the damages and costs sustained by the plff. in this action by rea- son of the premises; which inquiry shall be made and evidence given in open court and after the inquest have considered thereof they shall forthwith return their inquisition under their hands and seals to the end that the court may proceed to judgment as upon inquisition of that kind returned by the sheriffs, agreeably to the act of the general assembly in such case made and provided. And because the said plff. in the said fifth additional count in the said declaration, being the eighth count in the said declaration con- tained, hath not set forth or shown any sum or amount of pecuniary damage by him sustained by reason of the premises in the said count mentioned, it seems to the court here that the said last count of the said declaration and the matters therein contained are not sufficient in law for the said John to have or maintain his afsd. action thereof against them the said defts., and that they the said defts. are net bound in law to answer the same; wherefore by reason of the insuffi- ciency of the said eighth count of the said declaration the demurrer of the said defendants to the said count is allowed by the court here and of the said last count the said defendants have judgment." Clayton, Ingersoll, Rogers and Read, for plaintiff. Frame and Jones, for defendants. COURT OF ERRORS AND APPEALS. JUNE TERM, 1833. PETER BAUDUY vs. THOMAS BRADUN, use of the BANK OF WILMINGTON AND BRANDYWINE. Judgments by confession are not within the 8th and 9th statutes William re- quiring a suggestion of breaches. Execution may issue on such a judgment entered on a bond with a collateral condition. Two returns of nihil on two consecutive sci. fa's, are equal to scire fed; and it is not a fatal error if the last do not refer to the first. After the second return the plff. has a day in court to sign judgment and he may do it within the year and day. WRIT of error to the Supreme Court in and for Newcastle county. Extracts from the record: Thomas Bradun vs. Peter Bauduy, Judgment D. S. B. confessed, April 3d, 1815, as of April term, 1815. Penalty or sum in narr. $40,000: Real debt $ , interest from . On this judgment a sci fa. issued against Peter Bauduy on the 27th October 1827, returnable to the October term, 1827, on which the sheriff returned " non est inventus." Another sci. fa. issued on the llth March, 1828, returnable to the March term, 1828, against Peter Bauduy and terre-tenants ; on which the sheriff returned " non est inventus " as to Peter Bauduy, made known to John Peter Garesche and others the terre-tenants. This sci. fa. did not recite the former one, nor refer to it. November llth 1828, on motion, judgment. Real debt $6,996 91. Fi. fa. No. 93, to Nov. term, 1829. Levied Rule Inquiry, &c. Vend. Exponas No. 20 to Nov. term 1830. Sale made, &c. Assignment of errors : First. For that the said judgment upon the said writ of scire facias is erroneous in this, to wit, that it was rendered by default upon one return of nihil against the said plff. in error. Second. For that the said judgment upon the said sci fa. appears to have been rendered by default at a different term from that at which the said scire facias was made returnable, and without any continuance of the said sci. fa. Third. For that final judgment was rendered against the said plff. in error instead of an interlocutory judgment on the writ of sci. fa. Fourth. For that the fi. fa. Is erroneous being issued against the said plff. in error without the amount due the defendant in error be- B AUDIT Y vs. BKADUX, USE BANK WIL. & BKAX. 183 ing ascertained by a writ of inquiry. Fifth. For that the execution process issued against the plfL in error is erroneous and void in this, to wit, that it issued upon an interlocutory judgment. Sixth. That judgment was rendered by default against the deft, on a return of nihil upon a set. fa. which was not an alias and has no reference to the set. fa. upon which non est was returned, and is also awarded against other persons as well as the deft. J. A. Bayard, for plaintiff in error. At the return term of the second sci. fa., there being no appearance and no judgment taken then, the cause was out of court, and judg- ment could not be taken the next term. There could be no continu- ance. The party taking judgment by default must be technically cor- rect. He should have either taken judgment at the March term 1828, or have taken out a third sci. fa. returnable to the November term. If there be no appearance there can be no continuance. Second. Where a party chooses to substitute two nihils for a service the sci. fa's, must be connected, an original and an alias, the second referring to the first. Here is no such reference. Moreover the first sci. fa. is against Peter Bauduy alone, the second is against Peter Bauduy and terre- lenants. The first therefore will not support the second. An alias must be sued out commanding the shefriff to summon the deft, as he has heretofore been commanded. Two nihils are equal to a scire feci. 2 Wms. Saund. 72, s.; Yelv. 88; 2 Tidd 1038, See Tidd's forms. There being no connection between these writs of sci. fa. they do not warrant the judgment. Third. After taking judgment on the second soi. fa. the party showed upon the record that this was not a money bond, but a bond with a collateral condition; and he undertook to ascertain the amount on the sci. fa. without a writ of inquiry. We hold that this is totally irregular, even if the judgment was right, as the amount could not be ascertained by the party himself, but only by a jury on a writ of inquiry. Wales, for the Bank. The mistake on the other side arises from taking an erroneous view of this judgment. What was the nature of the original judgment? Is it a final judgment in debt ? or a judgment sounding only in dam- ages, of an unascertained amount on which a writ of inquiry is neces- sary ? Undoubtedly it is a final judgment ; for a sum certain ; a judg- ment in debt. The judgment on the sci. fa. follows its nature it is merely that execution issue, &c. Judgment confessed on a warrant of attorney is a final judgment; 1 Sellon's Pr. 381. not within the statute 8 & 9 Wm. requiring a sug- gestion of breaches. 1 Tidd 508, 511. Excepted out of our own stat- ute. (Dig. 78, sec. 3..) On a judgment confessed on bond with col- lateral condition an execution may issue. 3 Taunt 94. It doe's not appear by the record that this judgment was on a bond with a col- lateral condition; and where the objections are strictly technical the court will not make such an inference. Irregularity in the process cannot be taken advantage of on writ of error. There was full remedy below by a motion to the court. 8 Johns. Rep. 61. No case can be found whereon a judgment by confession the defendant could insist on a writ of inquiry. There are cases, as these in 2nd Saund. 187, 184 BAUDUY vs. BRADUX, USE BANK WIL. & BRAN. where the plff. may, at his option, sue out execution on a writ of in- quiry where he goes for interest by way of damages de incremento; but there is no case establishing that the deft, can compel him to take the writ of inquiry. He is entitled to execution if he choose it. 7 Durnford & East 446.. Second. The next question is whether the judgment on the sci. fa. is regular. The rule of the English courts is correctly stated that two nihils are equal to a scire feci. 2 Saund. 72, s. Yet this rule is not uniform ; in the common pleas one nihil is sufficient ; and the practice in both courts is not to take out either of the writs but merely to make formal entries of the returns of nihil. 2 Sellon 196. Does the fact that the second writ included the terre-tenants with the deft, make any difference ? As relates to Bauduy there are two returns of nihil, and he can set up no objection to the proceedings against the terre-tenants. But it is contended that this second writ is not an alias. The books speak indifferently of an alias sci. fa. and of a second sci. fa. The word alias simply means another; the insertion of it is not absolutely necessary, and if omitted it was amendable at common law; (1 Bac. Abr. 146) by the statute of jeo-fails, (Id. 153) and un- doubtedly by our own act of assembly (8 vol. 43.) it is sufficient if the records of the court show that there are two consecutive sci. fa's, to following terms, whether they be entitled alias or not. If there be an omission it is clearly a misprision of the clerk and amendable by the statute jeo-fails : 32 Hen. 8 : which will also cover the objection that judgment was not taken at the return term of the sci. fa. The plff. is in court, and has a day to sign judgment and he may do it within the year and day. J. M. Clayton, on the same side. If this judgment is now to be reversed at the instance of the deft, he will take advantage of his own wrong. He might have moved the court below to set it aside ; but he has chosen to lay by, let execution go, the land be sold, money distributed and rights vested. The court will not now regard mere technical objections with favor. Even the want of a writ of inquiry is aided by statute jeo-fails. 2 Strange 878 ; 1 Tidd. 525. Nothing is clearer than that the want of a continuance is aided by our act of assembly. 8 vol. 43. It has never been known in the practice of this state for a writ of inquiry to issue on a judgment confessed on a warrant of attorney. The nature of the action is debt. The judgment is in debt; and the sci. fa. is merely a continuance of the same action. In the case of Green and Millechop in this state the question arose whether execution could issue on a judgment upon a b\>nd with a collateral condition. The court refused to set aside the execution. It was not contended in that case that a writ of inquiry was necessary; but that a sci. fa. should have issued suggesting breaches. The statute Wm. does not extend to a judgment on confes- sion. The English books say " it seems; " but here there is no doubt, for it is so settled by our act of assembly. Dig. 78. Then why should we assign breaches? The sci. fa. cannot assign breaches without de- parting from the original judgment ; it is merely a continuation of that judgment, and must follow it. But this point has not been urged here, though relied on in the case referred to. As to the continuances ; they are cured in our act of assembly. After default the continuance BAUDUY vs. BRADUN, USE BANK WIL. & BRAN. 185 is only by dies datus to the plff. for the deft, is not in court. The plff. may take judgment at any time within the year and day. 5 Com. Dig. Pleader v. 1. 2. The court may amend a sci. fa. when before them; being a judicial writ it is amendable. 8 Del. L. 43. 6 Bac. 120. We have a judgment on two nihils against Bauduy, and a judgment against the terre-tenants. We shall not now consider the effect of the latter judgment; though, if it were necessary, we should contend that it would warrant the svibsequent proceedings ; but there is no error in relation to the judgment against Bauduy, and we need not examine the effect of the other. Frame, in reply, for plaintiff in error. First. Is the entry of a judgment at a different term from that to which the sci. fa. was returnable regular ? We don't say that there has been a discontinuance; strictly speaking that could not be where the deft, is not in court. But the question is whether the process is fol- lowed up ; whether the judgment is on the process. The sci. fa. is re- turnable to March term. Now we don't complain that the case was not continued until the November term, but that no judgment was taken at the March term. After that the plff. was not entitled to a judg- ment, for even he was not in court. What kept him in court until an- other term ? There could be no continuance for want of parties. His process entitled him to judgment at March term but not after. Then how can this judgment be cured by the statute of jeo-fails, or our act of assembly ? This is not mere form but substance. It goes to the existence of the judgment. The objection is that the judgment was rendered on a state of proceedings not authorizing any judgment ; it is a judgment without any party in court either plff. or deft.; without any cause or proceedings on which a judgment could be rendered. There is nothing to amend such a judgment by. It seems by the au- thorities cited that there is a difference in the practice on this subject in the King's Bench and Common Pleas. The practice of the King's Bench has been more generally adopted in this state ; and, in reference to this question, the practice of that court is reasonable. If then two sci. f a.'s be necessary, they must be connected ; they must relate to each other, the second following up the first : and they must surely be each against the same defendant. Here the second sci. fa. not only does not allude to the first ; but is against other persons as well as the deft in the first. We have not contended that a bond conditioned for the payment of money with a warrant of attorney to confess judgment falls within the statute of Wm. requiring a suggestion of breaches. The cases in 8 Johnson and in Taunton are cases of bonds conditioned for the payment of a sum certain. But the position taken on the other side is general, that in no case of a warrant of attorney can the judg- ment fall within the statute Wm. or our own act of assembly; going even to the case where the condition is to perform a collateral act; to indemnify or to pay uncertain damages. Surely such a case must be within the statute. Mr. Wales now cited 2 Bos. & Pul. 445-6. that final judgment may be signed on a bail bond without a writ of inquiry; to which, Mr. Bayard replied, that the judgment on a bail bond was for a sum certain. 24 186 FARMERS' BANK ET AL. vs. SARAH H. MASSE Y. The Court entered the following decree: " And now, to wit, this eighth day of June, in the year of our Lord one thousand eight hundred and thirty-three, this cause coming on to be heard in the presence of counsel on both sides, learned in the law ; and the record and proceedings of the court below, and the errors as- signed, having been seen and considered, It is ordered, adjudged and decreed by the court here that the judgment of the late Supreme Court be in all things affirmed ; and that the plaintiff in Error pay the costs of this appeal, and that the record be remanded to the court below." THE FARMERS' BANK et al. respondents below, appellants vs. SA- RAH H. MASSEY, complainant below. The lien of a levy under a fi. fa. is limited to the property ascertained by the inventory and appraisement. A leasehold interest in a house and lot is not bound by a return of " levied x on goods and on lands as per inquisition annexed; " no inventory being made specifying the leasehold. Quere? If the Sheriff neglect to return an inventory and appraisement, can the plaintiff have further execution process against the defendanlf APPEAL from the Court of Chancery for Newcastle county. All the judges sat except Mr. Black; this appeal being from a de- cree of the late Chancellor. (Johns.) From the bill, answer, exhibits and proofs in the cause it appeared, that George Rieynolds Massey, the husband of the complainant, was in his lifetime possessed under a lease for the term of .999 years of a two-story brick house, stable and outhouses and seven acres of land situate in Newcastle county ; that being possessed of the said premises as afsd. he died intestate in the year 1816; that letters of administra- tion were granted on his estate to N. G. Williamson and Victor Du- pont ; that the personal estate being insufficient to pay the debts of the intestate, the administrators at an Orphans' Court held at Newcastle, April 12th, 1817, preferred their petition and obtained an order of the said court for the sale of the land and real estate of the intestate ; that at the time of the said order and prior thereto, to wit, on the llth of July, 1815, a judgment was entered in the court of Common Pleas for Newcastle county as of the May term in -the year afsd. at the suit of the President, Directors and Company of the Farmers' Bank of the State of Delaware against the said George R. Massey, the real debt being $2,528, with interest from the 4th November in the same year ; that a writ of fi. fa. was issued thereon April 22d 1816, returnable to the May term of that year; that by virtue of the said writ the sheriff levied on the goods of the intestate then in the hands of the adminis- trators, which by an inventory and appraisement returned by the ad- ministrators into the register's office for the said county, amounted to the sum of $1,300 ; that the said fi. fa. was in the hands of the sheriff at the time the said order of 'the Orphans' Court as afsd. was obtained ; that the said administrators having obtained the order of the Orphans' Court as afsd. proceeded to advertise and publicly sold the afsd. two- FARMERS' BANK ET AL. vs. SARAH H. MASSEY. 187 story brick house, stable, outhouses and seven acres of land on the day of in the year 1817 ; that the said Sarah H. Massey was the purchaser, and the consideration money, being the amount of her bid, viz. $1,175, was paid by her to the said administrators; that the return of the said sale was made, read, approved and confirmed by the said Orphans' Court in the month of April 1818, and in August of the same year a deed was executed in the usual form by the administrators, conveying the afsd. two-story brick house, stable, outhouses and seven acres of land with their appurtenances to the said Sarah H. Massey, her heirs and assigns ; that Nicholas Gr. Williamson, one of the admin- istrators, made a payment to Francis Haughey, sheriff, amounting to the sum of $975. By the sheriff's return of the fi. fa. No. 81, to May term 1816 issued at the suit of the bank as afsd. which is in the fol- lowing words : " levied on goods in the hands of the administrators amounting to $ , and on land as per inquisition annexed, subject " it does not appear that any inventory or appraisement was made and returned by the sheriff, nor was any sale made by him prior to the return of the said writ. It further appeared that in the year 1818 the Farmers' Bank afsd. caused to be issued a writ of venditioni exponas No. 99, to December term, 1818, under which the sheriff returned " sale made 12th deer. 1818, of Nos. 1 and 2, to James E. Black, at the price of $5,580; the sale of No. 3 (the house and lot afsd.) " countermanded by plff.'s att'y." No further proceedings were taken by the Farmers' Bank afsd. until the day of , 1819, when the said bank caused to be issued an alias venditioni exponas No. 51, to December term 1819, for the sale of No. 3, which was stopped and the proceedings thereon restrained by the writ of injunction awarded on behalf of Sarah H. Massey the complainant below, which injunction was made perpetual by the decree of the chancellor at the hearing of the cause in the court below. From this decree an appeal was taken and the appellants assigned the following causes of appeal: First. For that the said decree is er- roneous in this, to wit, that the chancellor decreed a perpetual injunc- tion restraining the defts. from proceeding at law upon the judgment and execution against George E. Massey mentioned in the bill of com- plaint, whereas the chancellor ought to have decreed that the bill of the said Sarah H. Massey the complainant below should be dismissed. Second. For that the said decree is erroneous in this, to wit, that the said decree is against the evidence and facts in the cause. Third. For that the said decree is erroneous in this, to wit, that the said decree is against the law and equity of the case. Booth, for appellants. The complainant applied for the aid of chancery on the ground of an agreement between Williamson the administrator of Massey and sheriff Haughey with the assent of the directors and attorney of the bank, that Williamson should sell the property of Massey instead of the sheriff, and that the amount of complainant's purchase was actu- ally paid to the sheriff, and by him applied to the bank's execution. The ground then is fraud or something very like it. The answer of the bank denies the agreement totally. All the parties considered that this house and lot, which turned out to be but a leasehold, was a free- hold and a fee simple. Upon this idea the application to the Orphans' 188 FARMEKS' BANK ET AL. vs. SABAH H. MASSEY. court for power to sell it was predicated, for if it was only a leasehold, the administrators had power to sell it without applying to the court. Any agreement or understanding between the sheriff and the admin- istrators must therefore have had reference merely to the personal property, not including this house and lot which was considered and treated as realty. The execution of the bank was issued two days after Massey's death, and levied on all his personal and real property in- cluding this house and lot, which was bound by that levy whether it be considered freehold or leasehold. Being so bound the sale by the ad- ministrators could not discharge it and the bank has still a right to follow out its process to a sale, unless indeed it could be tainted with the supposed fraud of which there is no evidence. Wales, for the respondent; Mrs. Massey stands in the condition of a purchaser of a chattel from a person being in possession and having power to sell it. This prop- erty was not at that time levied on as personal property by this fi. fa. of the bank. What then was to prevent her purchasing it ? She did purchase and pay for it and received the best evidence of her purchase, a deed. But supposing it had been levied on as personal property it was left in the hands as the administrators and they being in possession had a right to make sale of it, at least the title would pass by such a sale. The principle is that a levy does not divest the property if it be left in the hands of the party. At the time of the purchase by Mrs. Massey the sheriff had made no return of his levy and she could have no notice of a lien arising from such levy. She is therefore an inno- cent purchaser without notice. The return of the sheriff is levied on property in the hands of the administrators. After such a return the bank could not proceed further until they showed that this levy was not a satisfaction of the debt. It is a levy to an uncertain amount, and there is no inventory or appraisement. Before they could proceed against the land they must show a disposition of the goods levied on. A levy to an uncertain amount is a satisfaction of the executiqji until the amount appear to be insufficient. Then even considering this as real property, there is an end to the bank's claim, until the property levied on shall have been disposed of. Plff. cannot take out a second execution until the first fails to be satisfied; and this although the sheriff has not sold the goods nor returned the writ. 2 Wils. Bac. Ab. 717, 720. Execution, D. If goods be levied on and not taken out of the party's hands they may be legally sold and the purchaser without notice is protected. 9 Johns. Rep. 131. A levy without a seizure does not divest the property. 4 East 523. But here the fi. fa. was not re- turned to the proper term nor for two years after. The bank lay by and did not procure a return. This is evidence of their acquiescence in the arrangement between the administrators and the sheriff. The next step which they did take in execution of their judgment was di- rected against Nos. 1 and 2, other property of Massey leaving this leasehold untouched. Then as to the levy. A levy on freehold will not bind leasehold property, the one being realty and the other per- sonalty. Even if the bank had a lien on this property by virtue of their unreturned writ the countermand of the venditioni exponas re- moved that lien. This is the smallest effect of such a countermand ; FARMERS' BANK ET AL. vs. SARAH H. MASSEY. 189 it would probably amount to a satisfaction ; at all events it would re- move the lien as regards a bona fide purchaser without notice. A levy made after the fi. fa. was returnable would not bind the return two years after is evidence that the levy was made too late. Either on legal principles, then, or equitable, we are entitled to the protection afforded us by the chancellor's decree. Booth, for appellants, in reply. How can Mrs. Massey be regarded as a purchaser with notice ? The house and lot were considered by all as real property and were sold as such by proceedings in the Orphans' Court. Mrs. Massey, taking her title under those proceedings, had notice of them and of all the ac- companying circumstances. The judgments and liens were produced there. She thus had notice of and purchased subject to them. The property was levied on as freehold ; inquired on as such. How can this be a less binding as a levy if the interest of the defts. turn out to be less than that supposed ? Whatever that interest is it covers, especially where the levy is upon a greater interest than that possessed. The greater includes that less ; and a levy on a freehold is a good levy on a leasehold. The English rules of seizing property on execution, and the consequences of leaving it with the deft, do not apply here. Our practice is different. JOHNS, JR., Chancellor, delivered the opinion 6f the court. After a full statement of the case, he said " The only question necessary to be considered in this cause is as to the extent and effect of the lien and levy under the writ of fi. fa. which was issued April 22d, 1816, and returned by the sheriff in the year 1818. The act of assembly relative to execution process renders it the duty of the sheriff on receiving the writ of fi. fa. to make the levy, and describes in a very special manner how he is to perform his duty, and requires that he should particularly specify each article of personal property and return an inventory and appraisement of the same at the court to which the said writ is made returnable; and in case of failure so to do, by the said act, the officer is made liable to the execution creditor for the whole amount of his debt. Dig. 207. Upon a proper construction of the provisions of this act the sheriff in this case having returned his writ and made no inventory and ap- praisement as therein is prescribed the right of the plff . to any further proceedings under the said writ may be questioned. Independent however of this ground it is well settled that when a levy has been made under a fi. fa. and the same is returned with an inventory and appraisement the lien of the execution is limited and confined to the personal property actually taken, and by the inventory and appraise- ment ascertained. This being the established law relative to execu- tion process the subsequent proceedings must be restricted to the prop- erty levied upon by the fi. fa. on which they are founded; and hence the venditioni exponas cannot give authority to the sheriff, or legally authorize the sale of personal property not embraced by the levy. If then we apply this rule of law to the case before the court, the special return made by the sheriff under the fi. fa. decides the question. The return made by Francis Haughey, sheriff, is in the following words: * Fi. fa. No. 81. May term 1816, levied on goods in the hands of the 190 HEIRS OF P. HEADING vs. THE STATE. administrators amounting to $ and on lands as per inquisition annexed, subject.' From the peculiar phraseology of this return it is manifest the sheriff had not levied upon any chattel interest, and that the leasehold interest in the lands and premises mentioned in the bill of complaint cannot be affected ; it is evidently omitted ; and from the bill and answer it does not appear that at the time of the levy made, the parties complainant and defendant had any knowledge of its exist- ence. The extent of the lien under the fi. fa. being thus ascertained and defined by the levy and return, the venditioni exponas could not operate further than to authorize a sale of the goods of the intestate ; and the additional words " and on land as per inquisition annexed subject " are from their import restricted to the freehold interest, and cannot include the leasehold interest. The alias venditioni exponas which issued could have no larger or greater operation than the first. The leasehold interest not being embraced by the inventory and ap- praisement, and the fi. fa. having been returned at the May term, 1818, the administrators of Massey, the intestate, were lawfully in possession of the leasehold interest; and in the year 1817, when they made sale of the two-story brick house and premises the same was not subject to or affected by any lien under the fi. fa. No. 81, issued by the bank in April 1816; and as administrators they had power to sell the same. The Court therefore are of opinion that the decree below be af- firmed." Booth, for appellants. Wales, for appellee. THE HEIRS AND TERRE-TENANTS OF PHILIP READING vs. THE STATE, for the use of MARIA WARD late MARIA READING. Matter amounting to a discharge or legal payment of a recognizance cannot be given in evidence under the plea of payment, but should be pleaded specially. Semble. If lands bound by a recognizance in the Orphans' Court be sold under a younger judgment, the money is applicable to the recognizance and the lien is discharged. But in an action against one of the recognizers such a defence can not be set up under a plea of payment. In deT)t on a bond, or sci. fa. on a recognizance, every thing in avoidance or discharge of the bond or recognizance must be specially pleaded. The object of pleading is notice to the other side, as well as the simplifying the issues. Matters which amount to the general issue cannot be specially pleaded. WRIT of error to the late Court of Common Pleas, Newcastle county. This was a scire facias upon a recognizance in the Orphans' Court acknowledged by Philip Reading on the 16th September 1813 in the sum of $28,770 36, on the acceptance of the real estate of Philip Reading deceased, and conditioned in the usual form for the payment to the other children of Philip Reading deceased, of their proportions of $14,385 18, the appraised value of said lands. The defts. below pleaded (inter alia) " that the said state of Dela- ware, the now plaintiff, for the use of Maria Ward late Maria Read- ing, ought not to have execution against them nor of their lands for the debt aforesaid by virtue of the said recognizance because, protest- ing" &c. "they say that the said Philip Reading after the said 16th HEIRS OF P. BEADING vs. THE STATE. 191 September, 1813, and after the times of payment in the said condition mentioned, and before the commencement of this suit, to wit, on the day of , A. D. 18 , at Newcastle county afsd. paid to the other children of Philip Beading, deceased, their equal and propor- tionable shares of $14,385 18 in the said condition mentioned, to- gether with all interest then due thereon according to the form and effect of the said condition of the said recognizance; and this they are ready to verify; wherefore they pray judgment" &c. On this plea, and another, issue was joined. " The counsel for the defts. to maintain and prove the said issues on their part offered in evidence a judgment at the suit of - against William Pryce, one of the recognizers in the afsd. recogni- zance; an execution on that judgment, and the return of the sheriff thereon showing the amount of the sales of the lands of the said William Pryce ; and did insist before the said court that although no part of the money arising from the said sales of the said lands had in fact been applied in satisfaction of the said recognizance, yet, that as in law the money so arising ought to have been applied in satis- faction of the said recognizance, the said judgment, execution and return ought to be received in evidence under the plea of payment. But to this the counsel for the said plff. did object and insist before the said court, that the matters so offered in evidence could not be ad- mitted as evidence under the plea of payment filed in the said cause, but should have been specially pleaded by the defts., to have enti- tled the said defts. to give the said matters in evidence. And the said justices did thereupon declare and pronounce it to be their opi- nion that the said judgment, execution and return could not be ad- mitted or given in evidence under the aforesaid pleas, and the same were accordingly rejected and not to be allowed to be given in evi- dence." Whereupon the counsel for the said defts. did except to the afsd. opinion of the said justices. The plff. had a verdict and judg- ment for $1,284 17. (Judges Clayton, Cooper and Stout on the bench. ) In the assignment of errors the second and only one relied on was the following : " 2. For that the said justices refused to permit or ad- mit the counsel for the defts. in the said scire facias to give or exhibit in evidence to the said jury a judgment at the suit of against William Pryce, one of the recognizers in said recognizance, an execution on that judgment and the sale of his lands on that exe- cution; whereas the said justices ought to have permitted the said defts. to have given the said evidence to the said jury under the plea 'A payment/' In the Court of Errors and Appeals the cause was submitted with- out argument, and that court affirmed the judgment of the Court of Common Pleas. Wales. and. Rogers, for plaintiff in error. J. A. Bayard, for defendant in error. The following opinion was drawn up but not pronounced. The case having been submitted without argument, this court affirmed the judgment without going particularly into the grounds; it was under- stood, however, that they concurred in the views here presented : 192 HEIRS OF P. READING vs. THE STATE. " This is a scire facias on a recognizance taken in the Orphans'. Court. The plea relied on is payment; and according to the terms of the plea a direct and absolute payment by the party pleading. The evidence offered to maintain this plea was a judgment against Wil- liam Pryce, one of the sureties in this recognizance, an execution and the sale of his lands. It was not insisted or pretended that any part of the money arising from this sale had in fact been applied in pay- ment of this recognizance, but it was contended that, in law, the sum arising from this sale was applicable to this recognizance; and, there- fore, that these proceedings should be admitted in evidence to prove payment under this plea. The Court of Common Pleas thought other- wise and rejected the evidence. Two questions might have been raised by the plaintiff's counsel, viz: First. Supposing the facts relied on by the deft, to have been specially pleaded, then did this matter amount in law to payment; or, in other words, did the sale of the surety's land of itself amount to a satisfaction of this recognizance? Second. Could this matter be received in evidence under this plea of absolute payment? The latter question was the only one before the Court of Common Pleas. Both are now open to this court; but we shall confine ourselves to the latter, (a) Pleadings are designed not only to put in issue single points, but to apprise the parties of what they are to come prepared to try. It is true that in actions of debt on simple contract, in actions of as- sumpsit, and in actions of trespass on the case, under the general issue, which puts the whole declaration in issue, almost every thing may be given in evidence which shows that the plff. at the time of commencing suit had no cause of action. But in an action of debt on a bond, or a scire facias on a recognizance, every thing in avoi- dance of discharge of the bond or recognizance must be specially pleaded. What is or what is not matter in discharge of a bond or recognizance is a question of law and must be shown to the court by the plea that they may see why the action does not lie; and being a question of law the judges are to determine whether it discharges or bars the plff/s action: although such bar or matter produced by the deft, may be traversed by the plff. whether it be true or not, which subsequently draws it to the determination of the jury. But the plff. is not bound to traverse ; for if the fact be true he may admit it and demur; and thus the sufficiency of the matter alledged in the plea is submitted to the court. We hardly think it necessary to mention here, and yet it may be, that there is this distinction in the books on pleading, that the mat- ters which are put in issue by the general issue are issues of fact, and, therefore, matters of evidence to be tried by the jury, and not to be referred to the court. For this reason, it is an invariable rule in pleading, that matters which amount to the general issue cannot be specially pleaded. But matters which ought to be specially pleaded in bar are matters of law and fit only for the determination of the court, unless the plff. by his traverse denies them and thus draws the determination of them to the jury. Ought not therefore the facts relied upon to be shown by the plea to the court that they may judge whether they be in law a bar to the action? Was the matter relied HEIRS OF P. HEADING vs. THE STATE. 193 on as a defence in this case so stated that the court could form any judgment upon it? Had the plff. any opportunity of traversing or demurring to these facts? On this general plea of an absolute pay- ment he was obliged to reply that no such payment had been made. He was driven to this, for to this plea he could not demur, the mat- ter contained in it being sufficient in law, for payment is a good plea. The judgment and execution against Pryce and the sale of his lands were not matters necessarily within the knowledge of the plff. They were transactions inter olios. And as it was not alledged in this case that any part of the proceeds of this sale was in fact applied in discharge of the recognizance, but that it was applicable only in law to the payment of it, the plea ought in justice to have apprised the plff. that the defts. meant to rely on this matter as a defence. Otherwise the plff. might have been surprised. Having no notice of the matter of defence she could not be supposed to come to the trial prepared to meet it. It might be that there were other judgments or incumbrances prior to this recognizance more than sufficient to have absorbed the whole proceeds of the sale; and yet it could not be sup- posed that the plff. would be prepared to show them. We have not been able to meet with any direct authority on this (a) State, use of Thomas Vickory vs. John Vickory and terre-tenants. In the late High Court of Errors and Appeals, June term, 1828. Error to the Court of Common Please for Kent county. This was a sci. fa. on a recognizance for Thomas Vickory's share of the value of lands ($264 56) entered into by John Vickory and others. The terre-tenants appeared and pleaded that the lands bound by this recogni- zance had been sold by the sheriff on judgment and execution, and pay- ment by the sheriff. A part of this land was purchased at the sheriff's sale by William Mas- ten : and, as to that part, the question was " whether the land should be held by him under this sale discharged of the recognizance." Masten piirchased with a knowledge of Thomas Vickory's claim. J. M. Clayton for defts. contended that the sale of the land by the sheriff was a legal payment or discharge of the recognizance; that the money arising from such sale was applicable to it, and if the sheriff had misapplied it he was liable. He showed that younger judgment liens had been paid by the sale. He contended that this was in accordance with the whole system of our law which favors the alienation of property, and shuns secret liens. That it imposed no improper responsibility on the sheriff. He is a public officer; has ready access to the records; is paid for his official responsibilities, and may protect himself by the payment of the money into court. Suppose the land to be sold subject to the recog- nizance, this absurdity will arise. The land is valued at $1,580: and is not worth half the sum; if sold subject it will not bring a cent and the first cognizee who proceeds loses his debt. When lands are assigned under an order of the Orphans' Court the assignee takes a complete title both legal and equitable. 1 Del L. 291 ; 2 Yeates 326. It is not like the title of a mortgagor, his interest is merely an equitable one, and when his land is sold it is sold subject to the mortgage, because in fact nothing more is sold than the mortgager's equity of redemption. The purchaser under a venditioni exponas takes a title clear of all liens. The payment of prior judgments by the sheriff has always been the practice; why 194 HEIRS OF P. READING vs. THE STATE. very point; but the analogies of other cases, the precedents and prac- tice, and the general principles of pleading, all show, that the view should he not be bound to pay prior recognizances? The supreme court has several times decided that he was so bound in The State use Mor- gan vs. Turner; State use of Stroud vs. Springer and State use of White vs. Broadie. 1 Del Laws 114; 2 do. 1105; 6 do. 657; 7 do. 86; 4 Dallas 321. Ridgely, on the other hand, contended that a sale of the land by the sheriff did not discharge the recognizance but the purchaser took subject to it. The sheriff was not bound to apply the proceeds to the recogni- zance, nor had he ever in the practice of this state. At, common law none of these liens not even judgments were discharged by a sale under a younger judgment. Those having older liens could not have their rights affected by a proceeding to which they were not parties. A. obtains judg- ment against B. and secures it by a lien on 1 his real estate, and goes abroad. C. gets a judgment against B. and sells the land. The money goes into the hands of the sheriff; and, if A's prior lien is hereby dis- charged, he has for his security in future to rely on the sheriff, whose bond may shortly be barred. Our own act of assembly changes the law as to judgments, but only as to judgments, a recognizance is a security of a very different nature, and you must extend a construction, itself con- trary to a common law principle, far beyond the act, to include recogni- zances. Establish the principle contended for on the other side and in what condition do you place your sheriffs? What your sureties? It would be impossible for the sheriff to pay over the proceeds of any sale without the utmost danger; he would therefore throw it into court and let the parties fight for it. Again, John Vickory, the cognizor, sold off a part of this land to Willoughby; the residue only has been sold by the sheriff. Now if the proceeds of this sale be applicable to the recogni- zance Willoughby's land will be discharged and Vickory's judgment creditors get nothing. Again. If the sheriff is bound to pay this money to the recognizance, how is he to ascertain the shares of each cognizee? Some of them may be infants who may thus be deprived of all remedy for the sheriff's bond must be sued in six years. 1 Johns. C. R. 512; 13 Johns. R. 463, 533; 12 Wheat 177; 3 Yeates 561; 1 Del. Laws 110. The Court of Common Pleas, judges Booth and Stout, decided that the purchaser took the land subject to the recognizance, and gave judg- ment for the plaintiff; but The High Court of Errors and Appeals, (Ridgely, Chancellor, being absent; Clayton, Chief Justice of the Common Pleas, declining to sit, having been of counsel; and Cooper, J. dissenting) reversed the judg- ment of the court below. JOHNS, Chief Justice of the Supreme Court delivered the opinion. The question is whether a sale by the sheriff, under a junior judgment, does discharge the land sold from the lien of a prior recognizance; or is the land bound by such recognizance in the hands of the purchaser. The law is settled by practice and by a decision of the Court of Appeals, that if a sheriff sell land under a junior judgment, he is bound to pay off the older judgments; the lien of these judgments is lifted; the land is discharged from them. Is there any difference between a recognizance and a judg- ment in this respect; is there any reason that a different rule should apply to the former. They are both general liens, and the court cannot make a distinction. We are of opinion that the sale of this land by the sheriff, under a junior judgment, did in its legal operation discharge the land from HEIRS or P. READING vs. THE STATE. 195 by the court below was right. If there be two or more obligors, a release to one is a release to all, whether the bond be joint, or joint and several. If A. and B. be bound by a bond, and A. be released and B. be sued, he must plead it not as a release to him, but he must plead the fact as it exists, the release to A., and this fact being shown to the court they are bound to draw the legal conclusion that a release to A. is a release to his joint obligor B. So it is whether the release be by deed or by operation of law; for where the obligee in a joint and several bond makes one of the two obligors his execu- tor, who administers and dies, the surviving obligor is discharged. Yet in an action against him he must specially plead all the fact? constituting his defence. If a feme obligee take the obligor to hus- band, this is a release in law. Yet if the husband should die and the widow should sue his executor, he must plead the facts of marriage, and the court are to judge whether this be not a release in law. The whole difficulty in this case arises from the loose and negligent manner of pleading in this state. The word " payment " is put upon the record, and that is generally supposed to embrace all manner of payment, although we think erroneously, for it can mean nothing more than a general absolute payment. And yet in these cases of the short plea of payment it is most frequently attended with leave to give the special matter in evidence where any special matter is relied on. But in this case the plea is formally drawn up it pre- sents the case of an absolute payment and nothing more. The Com- mon Pleas, thought that the facts relied on as constituting a pay- ment, or rather a discharge, for it is no payment, ought to have been set out in the plea, that the court might judge of their suffi- ciency; that it might see whether they amounted to a legal discharge. They surely do not amount to a payment either in the legal or the ordinary sense of that term. If any thing, they amount to a legal discharge. But suppose these facts for a moment can be imagined to -constitute a payment: they are not mere matters of evidence but facts which should have been specially set out in the plea. The Court of Common Pleas therefore properly rejected the evidence on the ground that the matter relied on was no payment, but if any defence merely a legal discharge, and as such ought to have been pleaded. 5 Bac. Air. 371; Pleas. G. 3 ; 1 Chitty 481; 1 Tidd. 596; 5 Comyn. 401; Pleader E. 15; 2 Lord Raymond 1072; Lill. Ent. 394, 6; 2 do 422, 480. Where judgment is recovered against one and an execution is is- sued and delivered to the sheriff who levies it on the goods of the deft, this matter may be afterwards pleaded in bar to a scire facias on this judgment, but the facts must be specially set forth in a plea." the recognizance, and the sheriff was bound to pay off the recognizance from the proceeds of the sale. The judgment of the Court of Common Pleas must therefore be reversed ; and the deft, in error pay the costs, &c. Cooper, Jus. dresented, and gave his reasons at length. Recognizances differ from judgments in this, they cannot be executed without resort to a court of law and suit brought. He regarded the act of assembly as not giving to the acceptor of lands in the Orphans' Court, any thing more than an equitable title until payment, the legal title remaining in the heirs at law. Hence he concluded that the land should always be sold subject to the claims of the cognizees. 196 COLEMAN VS. WAPLES. THOMAS COLEMAN, appellant complt b. vs. PETER WAPLES, appellee, respt. b. Husband takes the wife's property by force of the marital right and not as a purchaser. He therefore takes the rights of the wife subject to all equities, Ac. APPEAL from Chancery, Sussex. Thomas Coleman being the administrator of William Coleman, sold to Rhoda Coleman, the widow of the said William, or permitted her to take, at the appraised value, sundry articles of personal property belonging to the estate of the said William, to the amount of $551 28 ; and, at the bottom of the list of the said articles, the said Rhoda Cole- man executed and delivered to the said Thomas the following receipt and pledge : " Received April 9, 1829, of Thomas Coleman, administrator of William Coleman, deceased, the sum of $551 38, it being in full for my one third part of the personal estate of the afsd. William Cole- man, deceased; and I do hereby promise, agree and. oblige myself and my heirs, executors and administrators that whatever sum there may be overpaid to me by the said Thomas Coleman, over and above my one third part of the personal estate of the afsd. William Coleman, deceased, that I will refund and pay back to him the said Thomas Coleman, or to his heirs or assigns, on demand, with interest from this date. And I do further agree, and it is understood (by the par- ties) that the property in the within inventory mentioned shall be and remain bound and liable for the payment of such sum of money so overpaid to me by the said Thomas Coleman as administrator as afsd., and that the right and property of all the said goods and ar- ticles is and shall remain in the said Thomas Coleman until such sum of money is fully paid and discharged. Witness my hand the dav and year above written. (Signed.) RHODA COLEMAN. Witness present Comfort Hudson." On a settlement of the estate of William Coleman there appeared to be a balance due the said estate of $1017 12, the one third whereof $339 04 was the share of the said Rhoda, making the sum overpaid her as afsd. $212 34. William Coleman died in March 1829. In August 1829, Rhoda Coleman, his widow, married Peter Waples, into whose possession the said property went, and in February 1830, the said Rhoda died. Coleman filed his bill charging that the said receipt and agreement created a lien in his favor on all the said property in the nature of a pledge or mortgage for the sum so overpaid to Rhoda Coleman; and insisting that the said property was subject to such lien in the hands of Waples whom he treated as a trustee. Waples in his answer admit- ted all the material facts in the bill; but insisted that he took the said goods under no lien or trust whatever; that on a change of the possession of the goods the receipt and agreement could operate only to establish a debt due from Rhoda Coleman, his late wife, for which he was not now answerable. On the hearing below the Chan- cellor dismissed the complainant's bill, and from this decree an ap- peal was taken. COLEMAN vs. WAPLES. 197 Frame for the appellant. The principal question in the cause is, whether these goods^traced as they are to the hands of Peter Waples, the respondent, are bound specifically by the agreement of his late wife : or whether they are discharged in his hands from any such lien. The chancellor de- cided they were not liable, but the cause was not debated. First. What was the effect of this agreement as between the original par- ties? Were the goods bound in the hands of Khoda Coleman, before her marriage with Waples? The chancellor considered it in the na- ture of a pledge or pawn, which, the pawnor keeping possession, created no lien. But viewing it in that light it would not be void as against the pawnor, but only against bona fide purchasers and cred- itors. It would be binding as between the original parties although the possession was retained by the pawnor. Where there is a writ- ten contract of pledge, the pledger, though retaining possession is bound by it. I agree to the general principle, that a pawn is void without delivering possession, because the keeping possession is a badge of fraud. But this fraud can only relate to third persons; and, as the reason of avoiding the contract does not apply to the original parties, the contract is not void as relates to them. The authority of Kent/ must be so understood. 2 Kent Com. 581. But this is not a mere pawning ; it is distinguishable in at least one of the most striking particulars, the property namely, being vested in the pawnee. This is a mortgage, and the distinction between a pledge and a mortgage is that in the former the general property re- mains in the pawnor and the pawnee has merely a special property; in a mortgage the general property vests in the mortgagee and a special property only in the mortgagor, to wit: the right to redeem. A mortgage of goods may be good without delivery. In this case the parties expressly agree and contract that the general property shall remain and be in Coleman the mortgagee. This contract is therefore a mortgage. 1 It would require no precise form of words even in a court of law to make a mortgage much less in equity where the intent of the parties will be sought and executed. If the terms implied an absolute contract of sale, this court would make it a mortgage if the parties so designed it. 2 Kent Com. 577 ; 2 Caine's Cases in Error 202; Whitaker's law of liens 128; 5 Bac. Abr. 6. tit. Mortgage B. Ehoda Coleman being bound by this agreement; the mortgage being valid as between Coleman and her; the next question is, whether her husband is also bound. This proceeding is not to charge the husband of a deceased wife with her debt, we contend for no such principle: but the question is whether these specific goods,. traced as they are into his possession, bound at the time of going into it by a mortgage, are not still bound, or are they discharged ? Upon what principle are they discharged ? We have shown that Mrs. Coleman transferred the general property in these goods to the complainant. Peter Waples married her and took her rights and no more. Upon what principle of law or equity could he obtain a right in this property which she had not? The proposition thus stated shows its absurdity. It is against all the principles of law applicable to husband and wife. How should the marriage enlarge her property, or divest the complainant's lien? Is it the possession of 198 COLEMAN vs. WAPLES. the wife, or the want of notice to the husband? That possession is not incompatible with the mortgage, or even with a naked pledge as relates to the wife; and the husband, taking merely by force of the marriage, stands precisely in the same condition. The chancellor's error was in treating the husband as a purchaser, coming in on a con- sideration. I admit that marriage is frequently a valuable consid- eration, but it must be in a case where a consideration applies; as in marriage articles, settlement, jointure, &c. The consideration is always connected with a contract: but there is no such thing here: the husband takes the wife's rights by force of law, and he takes them subject to all the equities connected with them. He can take no interest larger or other than that of the wife. A husband taking by marital right is not esteemed a purchaser for a valuable considera- tion. He takes the right of the wife. And notice is immaterial. The husband cannot be defrauded in this respect, and is not entitled to notice. It is not pretended that this thing was done on the eve of marriage to defraud the husband. This does not fall within that class of cases. Clancy on married women 1. 2; 2 Blac. Com. 433; 7 Vezey, jr. 184; Dig. 75; 2 Kent Com. 515. If 1 have shown that there is no difference between the wife and the husband in relation to the lien on this property, the decree is er- roneous and must be reversed. And this though it should turn out on an account taken that nothing is due to complainant. The proof on the other side does not go to the fact that there has been an over- payment by the administrator, but only that he has not fully admin- istered. The chancellor then should have retained the bill and or- dered an account. Mr. Layton, for appellee. The counsel is mistaken with regard to the ground on which the chancellor decided this cause. He regarded this as a sale of the ar- ticles, and referred to the act of assembly avoiding bills of sale un- accompanied by possession. This agreement is on the part of Rhoda Coleman, an acknowledg- ment of a debt upon a contingency; that if on a settlement of William Coleman's estate it should be found that the $551 29 was more than one third of the estate, she would repay the excess. The complainant has not made a final settlement of the estate of William Coleman, nor has he filed in the register's office a list of debts, &c. The agreement is binding merely as a debt due from the wife, for which the husband would be liable if sued during his wife's life, but not after. 3 P. Wms. 410; 1 Sch. & Lef. 263; 1 P. Wms. 462. The complainant having omitted to pursue the only remedy to which he was entitled while the husband was liable must now abide the legal consequence of his neglect. We don't contend that this agreement is a pledge merely of the property. Yet there is a distinction between mortgages of real and of personal estate. The possession of personal property is evidence of title. Thomas Coleman suffered Rhoda to appear to the world as the owner of this property. It was a fraud on the public; a fraud on the appellee. The property thus in her possession might have been the consideration of his marriage. The agreement is analogous to a bill of sale, and void by our statute. (Digest 75J In this COLEMAX vs. WAPLES. 199 case the husband will be considered a purchaser for a valuable con- sideration. Whit, on Liens 65; Robts. on Fraud, conv. 103, 4. If a person advances money on the credit of a pledge of goods not delivered, it is a mere personal credit and not a specific lien. 1 Atkins. 194 (165.) Mortgagees of goods permitting a bankrupt to remain in possession have no specific lien against general creditors. 1 Ves. sen. 348. J.-M. Clayton, for the appellee. The first consideration is the distinction between real and personal property; between conveyances, mortgages and conditional sales of real and personal property. In the case of conditional sales of lands, annuities, grants on land, &c. the third party affected by the condition or lien is bound to look at the title. Precisely the reverse is the law of personal estate. The possession is always evidence of title. In case of an annuity charged on a leasehold the marriage will not avoid the mortgage, but all conditional sales of goods where the party remains in possession are within the statutes of Jac. and Eliz. And in all cases where the marital rights come into collision with claims under conditional sales of personal property within those statutes, the husband will be regarded as a purchaser and take on the idea of a consideration. The statutes of fraud are declaratory of the common law. A mortgage equally with a sale of goods is fraudu- lent and void if possession be not given: void as against purchasers without notice. That is this case. Waples is a purchaser without notice. The arrangement held out a fictitious credit to the world and operated as a fraud. Complainant sold the goods to Ehoda Cole- man and gave her possession; took from her on the same day a re- ceipt contradicting the sale and attempting to keep the title to the propert) r . Ehoda Coleman continued in possession and seemed the owner to the world. Waples married her and the complainant now seeks to charge him on this def eazance. Does not this come within the danger of fraud; does it not actually operate a fraud on Waples? If he was merely liable to be defrauded he is protected by the com- mon law of which the statutes of frauds are only declaratory. The case in 7 Vezey is an annuity on a rent charge, charged on a chattel real and registered. We don't contend that marriage would remove such a lien. There the husband is bound to look to the title. 1 Burr. 467; Fitzgiblon 207, 212; Rob. Fraud. 557, 101. 5-6; 2 Kent Com. 515, 523-4. If this be a mortgage of the goods it car- ried the legal title in them to Thomas Coleman, and is void for want of possession. It is of no importance whether it be considered a pawn, mortgage or absolute bill of sale; it is equally void. The ef- fect of it is a surrender on the part of Ehoda Coleman of the title to the property while she retains possession. This is fraudulent and void. Again. The right to recover back is by the terms of the instrument to accrue upon ascertaining an overpayment by a settlement of the estate. It is in proof that the estate is not settled. How then can there be a recovery until it appears that something is due. Frame in reply. Was directed to confine himself to the question whether the hus- band was to be considered in this case a purchaser for a valuable con- sideration. 200 COCHRAN vs. EVANS' ADM'R. The idea of a purchaser for valuable consideration implies a con- tract. Purchase has a specific legal meaning; it implies a sale and a vendor. The statute frauds applies to such purchasers and to cred- itors. It does so with reason, because such might be defrauded by the simulative ownership attendant on the possession, but this rea- son fails in the case of a husband. How can he be defrauded? He may be disappointed, but he takes the legal result of his marriage, the* rights simply of his wife. The possession of property by the wife cannot be called a consideration for the marriage though it may form an inducement to it. The proposition that a husband by force of the marriage becomes a purchaser of the wife's property is absurd. I agree that where a sale is made, or other contract, in consideration of marriage, it is a valuable consideration, but this is not that case. The husband here takes no title from the act of the wife, but alto- gether from the act of the law; by operation of law. The case in Vezey is express, " The husband taking by marital right is not es- teemed a purchaser for valuable consideration. How can the charac- ter in which the husband takes be varied by the kind of property whether real or personal? It may vary as to the effect of the convey- ance but not as to the character of the taker. Roberts relates to conveyances, and Kent to purchasers and creditors. 1 Black. Com. 461; 1 Vezey, sen. 348; 1 Aik. (165) 194. The court reversed the decree of the chancellor and decreed an account to be taken. FRANCES L. COCHRAN vs. DR. JAMES COUPER, Adminis- trator d. b. n. c. t. a. of DR. THOMAS EVANS, deceased. If a material fact stated in the bill be neither admitted nor denied in the answer, the complainant must prove it at the trial. What is admitted need not be proved; but what is not denied is not therefore admitted. A private act of assembly must be pleaded and proved. APPEAL from the decree of the chancellor in and for Newcastle county. The bill stated that Doctor Evans by his will bequeathed to Fran- ces L. Evans, the complainant, the interest on 400 to be paid to her annually during her life. That letters of administration d. b. n. c. t. a. were granted on the estate of Dr. Thomas Evans to the respond- ent, Dr. James Couper. That Mrs. Evans afterwards married with Joseph W. Cochran; that the said annuity was paid up to the vear 1816; "that by an act of the general assembly of the state of Dela- ware, passed at Dover on the - - day of - - 182 , upon the ap- plication of the said Frances L. Cochran, and on the ground of mis- con d act of the said Joseph W. Cochran, the bonds of matrimony theretofore existing between the said Frances L. and Joseph W. Cochran were dissolved and declared and made null and void to all intents, as by the said act which the complainant has ready to pro- duce at the hearing of this cause will more fully appear." The bill then set forth that the said annuity had not been paid to complain- COCHRAN vs. EVANS' ADM'H. 201 ant since the divorce, and prays an account and a decree for payment of the same, &c. Doctor Couper in his answer admitted the bequest; his adminis- tration and settlement of the estate of Doctor Evans, and that there was a balance in his hands of $456 03. He admitted the marriage of complainant with Joseph \V. Cochran " but deft, docs not know whether the bonds of matrimony were dissolved in the manner set forth in the bill; this deft, cannot further answer than that he has heard that an act of the general assembly was passed in relation to the premises; this deft, cannot therefore answer whether or not the said complainant become entitled to demand and receive the yearly interest afsd. after the passage of the said act of assembly." The complainant replies and defendant rejoins gratis. On the hearing the Chancellor decreed " that the bill be dismissed because of the want of proof of a material allegation, to wit: the di- vorce of the said complainant." Whereupon an appeal was prayed and granted. Wales, for appellant. Frances L. Cochran was entitled to this money as the widow of Doctor Evans. Her right to it was not put in issue by the answer of the deft, and therefore it was not necessary to be proved. The fact of the divorce was not denied. The decree must be founded on the matters contested; those facts put in issue by the deft's. denial. Etjuity like the law must decide according to the allegations and proofs; the matters in issue. We say that the divorce was not put in issue in this cause. The respondent, as far as he does answer ad- mits the divorce; at least he does not deny it, and therefore does not put it in issue. 19 Johns. R. 496 ; 6 Johns. R. 543. Read, jr. for appellee : We were prepared to go into the merits of the case and thought our- selves safe on them. But the chancellor chose to confine the case to this point. Here was a married woman sueing; the bill shows that she was a married woman, and without establishing a divorce she had no right to sue. The bill alleges that she is divorced, but this allega- tion is not admitted in the answer, and the issue made up is on all points not admitted. The divorce is a private act, not in the knowl- edge of the deft, and it must be shown affirmatively. For want of proof of this material fact the decree went against the complainant. Again. Is an appeal the proper remedy? Should it not have been by motion to the court to amend? The bill was dismissed for want of proper parties. The cases from Johns. Rep. do not apply. Wales, in reply : The bill states the marriage and the divorce; neither of them is de- nied. If the respondent objects to the bill for want of proper parties he ought to have demurred for that cause. We were no more bound to prove the divorce than we were bound to prove that the complain- ant was the widow of Doctor Evans. Unless the point be raised by the issue made up the party is not bound nor would be admitted to prove it. The replication in chancery puts in issue all the facts 26 202 COCHRAN vs. EVANS' ADM'R. stated in the answer, but the answer only puts in issue those facts stated in the bill which are denied in the answer. What the re- spondent does not deny he admits; and it is not true that the com- plainant is bound to prove all that is not expressly admitted, he is only bound to prove what is denied. Curia advisare vult. Mr. Justice Harrington delivered the opinion of the court. HARRINGTON, J. " The bill in this case was filed for the arrears of an annuity, being the interest on 400, bequeathed by the will of Doct. Evans to his widow Frances L" Evans. The bill states that Mrs. Evans was subsequently married to Joseph W. Cochran, and then sets out that ' by an act of the General Assembly of the state of Delaware passed at Dover on the day of 182 , upon the application of the said Frances L. Cochran and on the ground of mis- conduct of the said Joseph W. Cochran, the bonds of matrimony theretofore existing between the said Frances L. and Joseph W. Coch- ran, were dissolved and declared and made null and void to all in- tents; as by the said act, which the complainant has ready to pro- duce at the hearing of this cause, will more fully appear.' The answer of Doct. Couper admits the marriage of Mrs. Evans with Joseph W. Cochran; and, in relation to the divorce, it states * that the deft, does not know whether the bonds of matrimony were dissolved in the manner set forth in the bill ' and that he ' cannot further answer than that he has heard that an act of the General As- sembly was passed in relation to the premises,' he ' cannot therefore answer whether or not the said complainant become entitled to de- mand and receive the yearly interest aforesaid, after the passage of the said act of assembly.' The question below and in the Court of Appeals was, whether this answer, with the replication and rejoinder which were general, put in issue the fact of the divorce, and rendered the proof of that fact nec- essary. It was contended on the part of the appellant that the di- vorce was not put in issue by the answer; that whatever was not de- nied was admitted, and that, unless an issue was made up by the ex- press denial of a fact stated in the bill, the complainant was not bound to produce any evidence of that fact since it could form no part of the matters in controversy on which the decree was to be rendered. The rule in equity is, that what a deft, admits by his answer, the plff. need not prove; Coop. Eq. 445; but the question in this case is whether the extension of this rule is also true, that what the deft. does not deny, he admits. An answer usually begins by a reserva- tion to the deft, of all advantage which may be taken of exception to the bill, a form which Maddock says, was probably intended to prevent a conclusion that the deft, having submitted to answer the bill, admitted every thing which by his answer he did not expressly controvert. 2 Mad. Chy. 333. If this be the principle of the re- servation it is inconsistent with the rule contended for in this case. The practice of excepting to answers for insufficiency also contro- verts the position assumed by appellant's counsel. If the operation COCHRAX vs. EVANS' ADM'R. 203 of an insufficient answer be to dispense with the proof of the fact as- serted, why should the plff. except to it? He has all by that insuffi- ciency that he could hope for by full answer admitting the fact. The complainant is authorized in equity to make the deft, a witness to a certain extent against himself. He may call on him to answer as to certain facts which he alledges to be true. If the deft, evades an answer, the plff. may either except and make him answer directly, or he may go to issue relying on other evidence to prove the fact. If a party has a right to relief he has a right to an answer from the deft, to every allegation in his bill the admission of the truth of which is necessary to entitle him to that relief. The plff. may re- quire this discovery either because he cannot prove the facts, or in aid of proof, or to avoid expense, &c. 2 Mad. Cliy. 337; 6 Vezey 37-8; 2 Atk. 241. If therefore the answer neither admits nor de- nies, and the plff. replies and goes to issue without excepting to it, he dispenses with the benefit of a better answer and relies on his proof. For after replication he cannot except to the answer. Coop. Eg. 328. The cases cited from 6th and 19th Johnson's Reports are entirely consistent with this view. The principle of those cases is that the court will not hear evidence of matters not set out in the bill or al- ledged in the answer by way of defence. The court cannot afford re- lief not sought for by the bill; nor allow a defence to be set up by the evidence which is not stated in the answer, nor raised by the plea. The case must be tried on the allegations and proofs; the decree is upon the issues made up; but the replication cannot put in issue a matter of defence not relied on in the answer, neither can the answer raise an issue on matter not contained in the bill. These cases are therefore undoubtedly right, but they do not touch the question in the cause whether matters alledged in the bill and neither admitted nor denied in the answer are put in issue and to be proved by the party affirming them. The answer of Doct. Couper in this case by no means implies an admission of the fact of divorce, and it is as full as he could have been required to make. Even if excepted to, it must have been deemed sufficient. He says that he does not know whether the bonds of mat- rimony were dissolved as set forth in the bill, and insists that he can- not answer further than that he has heard that an act of assembly was passed in relation to the premises. He was not bound to know the contents and effect of that act. It was a private act and in the knowl- edge of the complainant. The answer was all that an administrator could be supposed to know; and, as he swears it was all he did know, he could not make a further answer. He was not bound positively to deny a fact which might for ought he knew be true, nor could he ad- mit it consistently with his duty, as its truth was not within his knowledge. The deft, bv his replication takes the answer as it is. To the extent of its admissions it proves his case; any thing beyond this it was obligatory on him to make out by evidence. This answer certainly does not admit the divorce; and the complainant, having given no evidence of it below, failed in an important part of his case. It is not denied that the establishing of this fact was essential to the complainant's suit. The bill showed her to be a married woman; and 204 NEWLIN vs. DUNCAN. unless the divorce was made out, she was not entitled to maintain her action. We are therefore of opinion that the decree of the Chancellor dis- missing the bill was right; and we affirm that decree with costs/ " Decree affirmed. Wales, for appellant. Read, jr., for appellee. THOMAS S. NEWLIN, surviving partner of NEWLIN & WOOL- LASTON, d. b. vs. JOHN DUNCAN, p. b. The acknowledgment of a debt barred by limitation revives the old debt and does not create a new obligation. Payment of a part of a debt, or any recognition of a debt existing or acknowl- edgment of a subsisting demand, is evidence of a promise to pay it and pre- vents the operation of the act of limitations. The principle of that act is a presumption of payment which a slight acknowl- edgment may rebut. QUESTIONS of law reserved by the Superior Court in Newcastle county to be heard in the Court of Errors and Appeals. |2f~'See the case, ante page 109. First. Whether entries in partnership books, as set forth in this case, (page 110 ante) made by a deceased partner, are acknowledg- ments of a subsisting demand under the hand of the party, within the meaning of the fifth section of the act of limitations (Digest 397,) so as to charge a surviving partner in an action against him upon a promissory note commenced more than six years after it is due, and to which the act of limitations is pleaded in bar. Second. Whether such entries being made more than three years before action brought will prevent the operation of the act as a bar to the plff's. recovery when pleaded. Bayard, for defendant below. Action brought 1st May 1832, on a promissory note dated 13th Oc- tober 1823 payable at sixty days, to wit, 15th December 1823. Pleas, non-assumpsit and the act of limitations. Verdict for plff. On the books of Newlin & Woollaston were the following entries : July 3rd 1826, credit by $1DO, and interest on this note; 7th May 1827, inter- est up to date, and 31st December 1827, interest to date. The entry of 3rd July 1826, vas in the handwriting of Woollaston, one of the partners. The first question is whether this entry comes within the exception in the fifth section of the act of limitations, as " an acknowledgment under the hand of the party of a subsisting demand." The principle of the act of limitations is the interest of the public that there should be an end to litigation; a period beyond which a man should not be called to answer stale demands. The time for this purpose is regulated by the nature of the security; bills; notes, acknowledgments under the hand of the party of a subsisting demand. Classed thus the meaning must he an instrument delivered by one to another under his signature acknowledging the demand, and for the express purpose of evidencing that demand. This takes it out of NEWLIN vs. DUNCAN. 205 the reason of the act, for there is no need of protection against a claim thus admitted. An entry by a man on his books is not an ac- knowledgment of this kind, it is within all the mischief which the statute was designed to remedy, it is not signed by the party, nor made for the purpose of evidence. I don't contend that such an en- try may not operate to take a case out of the act of limitations; but I distinguish it from the kind of acknowledgment intended by the act. It is not such an acknowledgment of a debt as is protected by the six year limitation. It is evidence of a payment towards the note at the date of the entry; but, not being an acknowledgment under the hand of the party, it is merely a parol admission of the debt and prevents the statute from running not for six years, but for three. And this on the principle that wherever a promise is relied on as taking a case out of the act of limitations that promise and not the original cause of action is the foundation of the suit, and is af- fected by the rules of limitation applicable to it. I think I can show this by analogy, though of course not by direct authority as the question could not arise in the English court, the six year limitation being applicable to either kind of admission. The acknowledgment is a new promise and does not draw down the old promise. The new promise is the substantive cause of action. The plff. ought to have been compelled to declare on the new promise. 1 B. & Aid. 92; 1 B. & Cress. 248; 11 Com. Law Rep. 124; 13 do. 85, 273. These decisions by the unanimous opinion of the courts in England, overlooking all the old decisions, establish the more rational doc- trine that there must be an express promise, and not merely an ac- knowledgment, to take a case out of the statute and that the promise and not the original cause of action is the matter to be relied on. If therefore it be by parol, suit must be brought within three years, whatever the nature of the original cause of action. An acknowl- edgment does not revive the old debt but is evidence of a new pro- mise for which the old debt is a sufficient consideration. 11 Johns. Rep. (146,) 161; 22 Com. Law Rep. 400, 401. The entry in this case is more than five years before the suit brought, which is consequently barred. Hamilton, for the plaintiff below contended, That the payment of the 3rd July 1826 of $100, on account of the note, the same being made by way of a credit to Duncan, entered in the handwriting of one of the partners in the .books of the firm, pre- vented the operation of the act of limitations, and revived the orig- inal cause of action. This note is dated in 1823. There was no limitation to promis- sory notes until 1829. The payments on account of the note are brought up to 1827. The note then never was barred. We don't go for a debt revived by a new promise. The cases cited might possibly apply to an action on the new promise, but our action is on the note, to which the act has never applied by reason of these ac- knowledgments. It is like the payment on a bond which prevents it being barred by lapse of time. It is an acknowledgment of a sub- sisting demand by note; not a new promise to revive a debt already barred. It is admitted that the entry or promise by one partner will revive a debt against both. Douglass 652; 2 H. Blac. 340; 6 206 NKULIX vs. DUNCAN". Johns. Rep. 268. The entry in the party's book in the shape of an account, is equivalent to a statement made for the other party, and is equally good as evidence of a subsisting debt. Suppose Woollas- tpn had written a letter to Duncan, stating that the firm had credited his account with $100, by way of payment towards their note, would this not take the case out of the act? And is not the entry by the party himself in his own book stronger evidence? Mr. Bayard insists that our suit is substantially on the new prom- ise, the acknowledgment of 3rd July 1826. This we deny. It is on the note, the old cause of action which has been kept in full vigor by the acknowledgment. The acknowledgment of a debt barred takes the case out of the act, and revives the original cause of action. A. recital in a deed is good evidence to take a case out of the act of limitations. 8 C ranch 72; Cox's Digest 465, s. 48, 72, 74; 7 Cranch 168. The admis, sion therefore of a debt due by promissory note within six years of action brought is sufficient. Bayard, in reply. Don't controvert the authorities cited on the other side except a dictum of Judge Marshall's in the case in Cranch. There is no au- thority for that position that the promise revives the original cause of action. The answer to the case of an admission of a debt due by bond is this. The twenty year bar to a bond is on a presumption of payment which any admission rebuts. The statute of limitations though sometimes incorrectly placed on this ground proceeds on a different principle, that of safety to the community against stale de- mands depending on loose evidence, and on the principle of sit finis litium. The plff's. action is certainly brought on the old promise, the note; but our plea of the statute is a sufficient answer to that, and in his replication he sets up the new promise. He relies then chiefly on the latter; and, if that is barred, his suit fails. And on the other ground the entry itself is not such an acknowledgment un- der the hand of the party as is protected by the six year limitation. Curia advisare vult. Chief Justice Clayton delivered the opinion of the court. CLAYTON, C. J. " This action was commenced on the 1st May 1832, on a promissory note dated 13th October 1823, for $404. On the 3rd of July, 1826, the deft's. paid in part satisfaction of this note $100, and on the 31st December 1827, the interest remaining due upon the note was paid. The deft, pleads and relies on the statute of limitations as a bar because the last of these payments was made more than three years before the commencement of the action; that three years is the period of limitation from the time of the last pay- ment and not six; the old cause of action (the promissory note,) not being revived by the subsequent acknowledgment, the plff. should have proceeded on the new promise, the old cause of action being the consideration only of the new promise. It is not disputed in this case that a payment of a part of the debt is evidence of a promise to pay the remainder, so as to prevent the operation of the statute as a bar. Indeed it is now well settled, and has been for more than one hundred years past, that an acknowledg- XEWLIX vs. DUXCAX. 207 ment of a subsisting demand, or any recognition of an existing debt, is evidence of a promise to pay it. The courts in England from the decision in Ueyling vs. Hastings in 1698, to the case of Acourt vs. Cross in 1825, have maintained that (the ground on which the statute proceeds is, that after a certain time it shall be presumed that a debt has been discharged. An acknowledgment rebuts that presumption, and then the plff. recovers not on the ground of having a new right of action, but that the statute does not apply to bar the old one. This is the language of the judges in Thornton vs. Illingsworth, (2 Barn. & Cresw. 224,) decided in the year 182-1. So in the case of Perham vs. Eaynall and others (2 Bing. 305.) Chief Justice Best says 'the presumption certainly is that the debt if any has been paid. But the presumption may be rebutted, and is rebutted by a subsequent acknowledgment. From the decision of Heyling vs. Hastings (1698,) down to the present time (1824,) it has always been holden that a new promise revives the old debt, but does not create a new one/ It is true this same judge in the year following (1825,) seems to have changed his opini- on in this respect, and says ' It seems to me that the plff. should have been required to declare specially on the new promise, and ought not to have been permitted to revive his original cause of ac- tion. Acourt vs. Cross, 3 Bing. 329. In the case of Tanner vs. Smart, 6 Barn. & Cresw. 603, decided in 1827, it is to be collect- ed from the whole case that this latter opinion of Chief Justice Best is not recognized to be law; for there the original cause of action was declared on, and the only doubt in the case was whether the acknowledgment was such a one as amounted to a promise to pay the debt. In addition to this we have the uniform decisions of the courts of this state as far back as the memory of the oldest lawyer extends. They have considered the subsequent acknowledgment as reviving the old debt, and not creating a new one. They have in effect treat- ed it as many of the English decisions do, as a waiver of the state. It has often been decided here as well as in England, that an acknow- ledgment made after action brought prevented the bar, and this evi- dence could only have been received on the ground that the old debt was revived; the new promise which is spoken of being subsequent to the commencement of the action could not sustain it. So it has been decided that an acknowledgment by parol, is sufficient evidence to revive the deft's. liability on a contract reduced to writing in pur- suance of the statute of frauds; the court saying that a written ac- knowledgment was not necessary in such a case, because the deft's. liability was fixed by the original promise in writing, and the ac- knowledgment within six years, was only to show that such liability had not been discharged. 1 Barn. & Aid. 690. The practice of declaring by an executor upon a promise to him as such, to pay the debt of the testator was much urged at the bar. In that case no doubt you must declare on the new promise, for every promise to be binding must be made by a person competent to make it, and to a person in existence to receive it. 6 Taunt. 310; 13 Com. Law Rep. 88. Besides, if the executor were to declare on the original promise to the testator, and to the plea of the statute of limitations 208 NEWLIN vs. DUNCAN. were to reply the promise made to himself, it would be a manifest departure in pleading, and a good ground for a demurrer. But who ever saw, as between the original parties, a declaration on the new promise? Has such a case occurred either in England or in this state ? We are not aware of such case. It is not to be denied that the later decisions in England on the statute of limitations have left the law in a confused and unsettled state. Indeed it is difficult to say what is the law at this time on the subject. It is certainly not settled, and seems to vary according to the caprice of the judge who tries the cause. If the old debt is extinguished and you must proceed on the new promise, what is the consideration of that promise ? Certainly there is no legal obligation to pay a debt extinguished by statute. Chief Justice Best who seems to have taken the lead on this subject, in Acourt vs. Cross, takes occasion to say that it is unchristian to compel a man to pay a debt barred by the statute, and he repeats the observation in another case. If it is unchristian to compel one to pay such a debt, there cannot be even a moral obligation to pay it. And yet this latter is the only ground on which the consideration for the new promise is attempted to be supported by those who say that the old debt is not revived by the subsequent acknowledgment. But it has never yet been determined that a mere moral obligation is a sufficient conside- ration to raise an implied promise. 1 Wheat. Selw. 42. In such case there must be an express promise to be binding on the party. Such is the case of one who contracts a debt during infancy and pro- mises after his arrival at full age to pay it. So in the case of bank- ruptcy and insolvency. In such cases the law will not imply a pro- mise from the mere acknowledgment of the debt, there must be an express promise to pay. And if the statute of limitations extinguish- es the debt, and the subsequent acknowledgment does not revive it, there would be no legal consideration; it would at most be a mere moral obligation from which the law would not imply a promise to pay, and would not compel one to pay unless he had expressly pro- mised. No one doubts that the naked acknowledgment of a subsis- ting demand takes the case out of the statute. This has never been denied. If it be so, and no express promise be necessary, you are not to proceed on the new promise but upon the old debt, the reme- dy which was suspended being restored by the acknowledgment. Since the late decisions in England to which we have referred, our statutes of limitation have all been revised, and none of the new principles attempted to be established by those decisions are intro- duced into our statute. Taking the law to be thus that the acknowl- edgment of a subsisting demand revives the old debt and does not create a new obligation, it follows in this case, where the demand is on a promissory note, that the period of limitation is six years and not three ; therefore that the plff. is not barred. It is not necessary to decide the other question presented to the court; the decision of this question being conclusive against the de- fendant/ ' The Court directed this entry : And now, to wit: this thirty-first day of October A. D. 1833, this cause having been heard at the last term of this court, and the same PARKIN'S ADM'RX. vs. BENXINGTON. 209 having been debated by counsel on both sides; and the court having held the same under consideration until this time, it is thereupon considered and adjudged by the court that the claim of the said John Duncan the plff. is not barred by the act of limitations aforesaid, and that the entries aforesaid in the books of Newlin and "Woollaston, being all made more than three and within six years before the bringing of this action, had the effect in law of preventing the said act of assembly from being a bar to the recovery of the said promis- sory note declared on in this action. And it is further considered and adjudged by the court that the said John Duncan the plff. ought to recover in his said action; and it is further considered, adjudged and ordered by the court that the record be remanded to the court below, and that the said Thomas S. Newlin the deft, pay the costs in this court. J. A. Bayard, for defendant below. Hamilton, for plaintiff below. JOHN" PAKKINS' ADM'EX. vs. JOHN BENNINGTON. Construction of the term " settlements under the hands of the parties " in the old act of limitations of 1793. Under the act of 1792 an executor or administrator being prohibited from paying accounts against the estate of his testator or intestate of more than three years standing, it was held that he could not by his promise revive a debt thus barred by limitation. But if the debt were not barred by limitation at the decedent's death, a prom- ise of the executor or administrator would pervent the act from running. WRIT of error to the Superior Court in and for Newcastle county. The Court of Appeals in this case consisted of the Chancellor and. Judges Black and Harrington. l^gr* See a statement of the case ante page 128. Mr. J. A. Bayard, for appellant. First. The implied promise of Mrs. Parkin the administratrix, does not prevent the act of limitations from being a bar to the plff's. claim. The distinct admission of an administrator is not sufficient to take a case out of the operation of the act according to the late de- cisions in England, but it requires a promise, and a promise of all the administrators. It was admitted below that from a necessary construction of the fifth section of the act of 1792, (2 Del. Laws 1033,) the promise of an administrator would not revive a debt barred by limitation. In the act of 1829 the provision which compelled this construction is omitted, and the question here is which law applies to this case. And here I cannot but regret the omission. According to the proper relations an administrator bears to the estate of his intestate he ought to be prevented from reviving the liabilities of the intestate. Being, as he frequently is, unconnected with the parties entitled to the estate, unacquainted with the facts and having no interest to prevent incautious admissions in relation to debts not justly due, the policy of giving him the power to do so is doubtful. It gives him too the power of a partial and arbitrary administration 210 PARKIN'S ADM'RX. vs. BENNINOTON. of the estate, reviving the claim of one and declining to do so for another, without, in either case, such personal knowledge of facts as can enable him to decide correctly. A uniform rule of conduct for administrators is certainly better than one subject to their own pleasure. Does the old act of limitations apply to this case? This act is re- pealed by that of 1829, but the repealing clause expressly saves any action, cause or matter, which should be barred before September 1829, according to the original law. No promise of John Parkin is proved. The debt was barred as against him at the time this last act passed. It was barred as early as 1823 or 4. No promise of his is proved after the passing of that act, for he was then dead. And no promise by the administratrix could revive it, for it is one of the cases excepted out of the repealing clause of the act of 1829, and still left to the operation of the old law. But if the latter act did apply, it would not avail in this case. It requires the express promise of an administrator to remove the bar; and a promise also by all the administrators. The courts in. Eng- land, proceeding on notions of particular equity, have by judicial leg- islation, almost repealed the statutes of limitation; they are now coming back to a more rational construction by requiring an express promise. The ground of limitation is the peace of society. Inter- est reipublicse sit finis litium. They do not proceed on the ground of payment. 8 Com. Law Rep. 68. The promise must be to the party. Mrs. Parkin's direction to the English executors is not a promise of this kind. 13 Com. Law Rep. 273. Promise to pay when able, not binding until able. Here they cannot rely on the promise of Mrs. Parkin to pay the principal alone, as a promise to pay principal and interest. It was conditional and not binding as it was not accepted. The order to the English executors if it could be relied on as the promise of Mrs. P. would not be binding without the assent of the other executors. 21 Com. Law Rep. 478. Neither an acknowledgment by all the executors, nor a promise by one, will take a case out of the act of limitations. Mr. Booth, for respondent: Relies on the promise made by Mrs. Parkin before the referees. She is the only representative of the estate of her husband in the United States, and the only person who could be sued here. There is no plea of plene administravit; it is therefore admitted there are sufficient assets in this country to pay. Whether the act of '92 or that of '29, applies to this case the claim is not barred. It is supported by a species of evidence that takes it out of the mischief which those acts were intended to pro- vide against and out of the acts themselves. The act of '92 has ref- erence to actions on open and unsettled accounts, unascertained and unacknowledged liabilities. And therefore the supplement of 1793 excepts from its operation bills, notes, &c., and settlements under the hands of the parties. This is not an open and unliquidated ac- count. Here is the written acknowledgment of John Parkin, dated in 1820, admitting his indebtedness to Bennington, ascertaining the amount, and ordering payment. PARKIN'S ADM'RX. vs. BENNINGTON. 211 The acts of limitation operate on the remedy and not on the cause of action. Their object is to prevent the suing on stale demands when papers are lost or witnesses dead. They were not designed to bar claims susceptible of clear proof from the parties own written acknowledgment. According to the other side the new promise does not draw down to it the original cause of action, but is itself a, new cause of action supported by the original liability as a consid- eration for the new promise. In this view the act of '92 cannot ap- ply to the new promise in this case, for it was not in existence, and under the act of '29 the promise of Mrs. Parkin is sufficient to re- vive the debt. And the repeated acknowledgments of Mrs. P. would be equally effectual, for by the law as established in this state by repeated decisions a clear acknowledgment of a debt removes the statutes as effectually as a promise. Then as to the promise of all the executors being necessary. It might be if all were sued. In the case cited by Mr. Bayard, all the executors were sued and a promise of but one proved. The pi It. was therefore nonsuited. It would be singular if a man should die here leaving property here and in England, and administration taken out in both countries by different persons, a debt cannot be collected here until the promise of the English executor was obtained. Mrs. Parkin however did promise here, and the English executors assented to that promise and paid a part of the debt in pursuance of it. 3/?\ Bayard, in reply. The same principle that prevents an administrator from volun- tarily paying a debt barred by limitation, prevents him from reviving such debt by his own promise. This was the construction of the act of '92. John Parkin died in 1826. This action was barred in 1828. It is agreed that no promise of the administrator would avail before the act of '29, the repealing clause of which saves from its operation such claims as were already barred. The old acts as to the cases to which they apply are as much in force as ever. Did they affect this case in September '29? If so, they continue a bar to this day. On this point I rely for a reversal. It is impossible to construe this letter of Parkin to Lovel of October 1820, a settlement under the hands of the parties, such as is excepted by the act of '93 out of the operation of the act of '92. It may be as Mr. Booth sug- gested, such an acknowledgment under the hand of the party of a subsisting demand as is excepted out of the act of 1829, but that does not affect the case, for whether barred or not by the act of '29, it is barred by the old act, which is the only one applicable to it. The construction now to be put on the act of 1829, in relation to the effect of an administrator's promise is new, and it is a proper oc- casion for the court to consider whether the old or the later English decisions on this subject are founded in the best reason. I have en- deavoured to show that the policy of permitting an administrator to revive debts barred, even by an express promise, was at least doubt- ful to extend it to the admissions of an administrator would be far more objectionable. Curia advisare vult. 212 PARKIN'S ADM'RX. vs. BEXNIXGTON. Mr. Justice Black delivered the opinion of the court. BLACK, J. " This case comes before the court on a writ of error to the Superior Court of Newcastle county, to which is annexed the bill of exceptions containing the evidence in the cause. The narr contains the usual money counts and also a count on an account stated by John Parkin in his lifetime. There is also a count on a promise by the administratrix to pay the money lent or ad- vanced to, or received by the testator, and a count on an account stated between the plff. below and Mary Parkin the administratrix. It appears from the bill of exceptions, that Bennington had depos- ited in the Burlington Bank in Yorkshire, 400 sterling, for which he received a check or certificate of deposit. That on the 21st A^pril 1819, the day before he sailed for the TJ. States, he handed this check to John Parkin to be delivered by him to one William Rob- son, to be kept by the latter until Bennington should send from America for the money. This bank paid an interest on the deposits of four and a half or five per cent. Parkin did not deliver the check to Robson, but some short time after he received it, drew the money out of the bank: Parkin came to the U. States in September 1820; and, on the 3rd of October 1820, on being called on by Bennington, he addressed a communication to Richard Lovel his agent in Eng- land, which he handed to Bennington, and which is in the following words; to wit: " Philadelphia, October 3, 1829. Mr. Richard Lovell. Dear Sir, The bearer hereof, John Ben- nington, will wait upon you (with Christopher Morris of Harpham, in order to prevent any imposition, being personally known to him) to receive from you the money or securities which I left to pay him the sum of 400, as by the account sent from Liverpool, by my brother Wm. Parkin. (Signed) JNO. PARKIN." John Parkin died in April 1826. In May 1828 Mary Parkin, who had administered on his estate in the state of Delaware, directed the executors named in the will, who resided in England, to pay Bennington the principal sum of 400, but no interest, admitting that that sum was at the death of her husband John Parkin due from him to Bennington, and further instructed these executors that if they were short of funds, she would pay the balance in America. In October 1829, the executors in England paid to Bennington 100. In May 1830, Mary Parkin, the administratrix, admitted that 400 was due from her husband at his death to the plff. below, and agreed to pay 300 the balance of principal remaining due after crediting the payment made by the executors in England, but contested the interest. This action was instituted on May 27, 1830. The plaintiff in error insists that this claim is barred by the act of limitations passed on the 4th day of February, 1792. (2 Del. Laws 1031.J That it was barred by that act in April, 1826, when John Parkin died, and that being so barred at the decease of Parkin, no acknowledgment or promise made by the administratrix afterwards can take the case out of that act or revive the debt or cause of action so as to render the estate of John Parkin liable for it. PARKIN'S ADM'RX. vs. BENNINGTON. 213 Under the act of 1792, the voluntary payment by executors or ad- ministrators of accounts or demands .against the estate of a deceased person of any longer standing than three years next before the death of the deceased is prohibited; and our courts have held, prior to the passage of the act of 1829, and as we think correctly, that an ac- knowledgment or promise by an administrator or executor to pay an account or demand thus barred would not revive such claim so as to render the estate of the deceased liable for its payment. If it could be thus revived the executor or administrator might do in an indirect mode what by that law he was expressly prohibited from doing. If however the debt was not barred at the death of the intestate there is nothing in the act of 1792 preventing the administrator from keep- ing the cause of action alive or the act of limitations from affecting or barring it by his promise or acknowledgment. The important question in this cause is whether the cause of action on which the present suit is founded, is of that description, or of that class to which three years is a bar by the act of 1792, and there- fore barred by that act. The act of the iBth June 1793, (Supplementary to the act of 1792 2 Del. Laws 1133) declares That nothing contained in the act of 1792 shall extend to any demands founded on mortgages, bonds, bills, promissory notes or settlements under the hands of the par- ties concerned. Bonds, bills, notes and settlements under the hand of the parties are placed on the same footing as to time; exempted from all operation of the act of 1782; and, according to the decisions of the courts in this state, were not affected by any of the acts of limitations of the state until the act of 1829 was passed. The count upon the account stated by John Parkin, in his lifetime is the important count in the declaration. Such a count is supported by evidence of an acknowledgment on the part of the deft, of money due the plff . upon an account between them or by a promissory note or written acknowledgment of indebtedness by the defendant; (2 StarTcie 123 ;) and it is unnecessary to set forth in the narr, or to prove, the items of which the account consists or is the subject of the original debt. (2 Starkie 123; 1 Chitty's PI 344-5; I Term Rep. 42, n.) On the 3rd October, 1820, John Parkin delivers to Bennington a communication to Richard Lovell in which he states " Bennington will wait on you to receive from you the money or se- curities which I left to pay him the sum of 400 as by the account sent from Liverpool by my brother William Parkin." Whether the account referred to as having been sent by his brother was an account of the "money or securities left" or an account between him and Bennington is not clear, nor perhaps is it very material. Here however is the written admission and acknowledgment of Par- kin, that he then stood indebted to the plff. below in the sum of 400 ; that he had made provisions for its payment by placing funds, money or securities in Lovell's hands for this specific purpose; and that an account, either of the transactions or dealings between him and Bennington, or of the funds and securities deposited, had been forwarded by his brother; and instructing the agent with whom this deposit had been made that Bennington would proceed from the 214 PARKIN'S ADM'RX. vs. BENNINGTON. United States to England,' to receive from him the money or securi- ties which he, Parkin, had left in his hands to pay him. Had an account current been drawn out at length and signed by both the parties, could it more strongly have evidenced a debt, or had a more solemn or binding character, than the writing on which this action is founded? It not only admits the debt which he owes, but specifies the provision made for its payment, and directs the payment according to the provision made. Was it not the design of the act of 1793, to exempt from the operation of the act of limitation ot 1792, to which it was a supplement, those claims which were spe- cially adjusted and settled by the parties, and which were sanctioned by the signature of the party indebted. Here the party who is to pay, on payment being demanded, promises to give a check for it, and signs the acknowledgment of his indebtedness and provides in it the means of payment, places this written evidence of the debt in the hands of the other party to enable him to receive the money due and as evidencing the exact amount he owes. What greater solemnity or obligation could attach to a promissory note, or to an account settled under the hands of the parties, than to this written paper? Is not such an acknowledgment of indebtedness at least within the equity of the act of 1793? This court in 1832, in the case of James Booth's executor vs. John Stockton's executor (ante 51,) when considering a question depending on this same act of 1793 said " the3 r would not confine themselves strictly within the letter of the statute, but that any case coming clearly within its spirit might be recognized as not barred"; and they laid down the rule " that any engagement which of itself would be the foundation of an action, without needing proof aliunde to support it would be an exception to the operation of the statute." We consider the paper signed by Parkin and handed to Benning- ton as of this character, and within the principle established in that case. It is the foundation of the action; no proof of the account, items, or matters for which it was given was necessary; under the account stated it was evidence of a specific indebtedness; we there- fore consider that it is clearly within the spirit of the exception of the act of 1793, as showing a settlement between the parties sanc- tioned by the signature of the party on Avhom the obligation of pay- ment rests, and that therefore it was not barred by the act of 1792. As the debt was not barred by the act of 1792, it was not barred at the death of John Parkin, as that was the act of limitation which was in force at his death ; and as it was not then barred it was clearly competent for his administratrix by her promise or acknowledgment to keep the claim alive and free from the operation of the act. In May 1828 she directed the executors in England to pav Bennington 400, and they, conforming to this order, paid 100, the amount of funds in their hands. In Mav 1830 she admitted her husband owed Bennington 400 at his death. At the time when these acknowl- edgments were made, the claim of the plff. was not barred, as it was not within the act of 1792. The claim is not barred by the act of 1829, for this suit was instituted in the court below on May 27th 1830, and the 12th section of that act declares that its provisions shall not extend to any acknowledgment under the hand of the party PARKIN'S ADM'RX. vs. BENNINGTON. 215 of a subsisting demand, if an action be brought thereon before the first day of September, 1830. \Ve are therefore unanimously of opinion that the judgment of the court below be affirmed/' J. A. Bayard, for appellant. Booth, for respondent. SUPERIOR COURT. FALL SESSIONS. 1833. THE STATE for the use of DANIEL GODWIN et al. vs. JOHN COLLINS, Sheriff, et al. Pleadings are amendable, in the discretion of the court, at any time before judgment. The distinction between pleadings in paper and of record not applicable to our practice. The object of pleadings is to present clearly the points in dispute, and to give notice of what is to be tried, so that justice may be done. And where this object cannot be effected without altering the pleadings, amendments are at all times allowable in the discretion of the court. DEBT on Sheriff's bond. Narr. Pleas. Replications. Demur- rers and joinder. The defendant's counsel moved for leave to amend their pleadings and for a continuance of the cause, which after full argument the court granted on payment of costs. (Note. The Chief Justice did not sit.) Frame, J. M. Clayton and Layton, for plaintiff. Cullen, Rogers and Bayard, for defendant. Mr. Justice Black delivered the following opinion of the court: " At the last term, on the motion of the plffs., the pleadings in this case were withdrawn and an order made that pleadings should be filed at length. In the vacation pleas at length were filed, to the most of which the plffs have demurred, and the defts have joined in demurrer. The defts. finding that some of their pleas are defective, ask leave generally to amend. This leave is resisted by the plffs. who insist that some of the pleas are sham and dilatory, put in for the object of delay, and that the parties shall stand or fall by the position in which these pleadings have respectively placed them, more especially as the effect of granting the motion will be to delay the plffs. one term more in the trial of their cause. The object of pleading is to reduce the controversy to certain and precise issues of law or fact, on which, as containing the pretensions or claims of the parties, the opinion of the court or jury may be taken, and a decision had in accordance with the principles of justice. To obtain a decision according to the justice of the case it often happens that amendments become necessary. The granting or refus- STATE USE OF GODWIN vs. COLLINS ET AL. 217 ing to grant the application rests in the sound discretion of the court a discretion to be regulated by the circumstances of the case and the principles of law settled in relation to like points. There is much difficulty in understanding from the English books when the pleadings are to be considered as out of paper; but it ap- pears from numerous authorities that whatever may be the technical difference between proceedings in paper and proceedings of record, the pleadings were amendable at common law, in the discretion of the court, at any time before judgment. 1 Petersdorf 504; 1 Salk. 47; 3 do. 31; Co. Lit. 260, a; Tidd 656; Steph. PL 106. No such distinction as to paper and record pleadings can be recognized in this state. We hold them to be of record as soon as filed; are we to hold then that our pleadings are not amendable because they are of record? If so, no narr, plea or replication can be amended after it is filed if we adopt the English rule because from that moment it is a record. The only rule therefore by which we can be governed is that furnished by our constitution of allowing amendments before judgment in order to obtain a determination of causes on their real merits. In England the courts have in modern times been liberal in allow- ing amendments to get rid of errors and mistakes and to prevent causes from being decided apart from their merits, when they are asked for in good faith, when no improper delay has been used, and when such amendments are essential to obtain a just decision of the cause on its true merits. In England amendments have been permitted in a great variety of cases after the issue has been made up and the case ready for trial, when in the judgment of the court it was deemed necessary to effect justice between the parties or a fair trial. So too after demurrer and joinder in demurrer. And in some cases even after argument and an opinion pronounced the party has been allowed to amend where the court deemed such leave proper under the pe- culiar circumstances of the case. In some cases it has been refused, the court saying that they would not allow a party to amend when he was so hardy as to stand out, go to the argument, and wait for the opinion of the court before he made his request. In general the leave to amend, according to the books, is almost a matter of course if applied for before trial or argument, and at the earliest period at which it could be made, if it be necessary to do justice between the parties, and no arts practiced for delay. 1 Pe- tersdorf 504, 529, 533 ; Steph. Plead. 106 ; 2 Caines 139, ~173, 369, 375; 2 Johns. 209; 3 do. 44, 140, 243; 8 Term. Rep. 300; Tidd 656; 1 Burr. 32-1; Barnes 9; Impey 297; Sayers Rep. 117; 2 Bos. & Pull. 480; 3 do. 11, 12; 1 East. 491; 5 Taunt. 765; 7 Moore 244. See also Randel vs. The Canal Company, ante 178. The constitution of this state provides that this court " shall have the power before judgment of directing upon such terms as they shall deem reasonable amendments in pleadings and legal proceedings, so that by error in any of them, the determination' of causes accord- ing to their real merits shall not be hindered." Under this clause of our constitution the courts of this state, ac- cording to our recollection of their decisions, have adopted a liberal- 218 STATE USE OF GODWIN vs. COLLINS ET AL. ity in amendments similar to that which now prevails in England, allowing them after issue joined in law or fact before argument al- most as a matter of course in fair cases when the rights of the ad- verse party would not be prejudiced; and in one case in this county, in the late Court of Common Pleas, of Huffington vs. Cannon, per- mitting it, from the peculiar circumstances of the case, after the opinion was delivered on the demurrer. We think this liberality regulated by a sound discretion well cal- culated to attain, in the language of the constitution, a determination of causes according to their real merits. Is it conducive to justice to hold a party who is free from suspicion in the management of his cause, and who has not used arts of delay and who may from inad- vertence, hurry, error in copying, or by putting forward as a matter of defence what on reflection he becomes satisfied will not avail or be tenable in law, when he sees his mistake, bound to abide the conse- quences of that mistake, and to prevent him from placing his cause on its true points and procuring its determination according to its real merits? We think not, unless the rights of the opposite party be prejudiced. When we speak of rights we do not mean legal ad- vantages given him by the pleadings, for of these it is the very object of the amendment to get rid, and procure a trial on the) true mer- its, but of those rights which intrinsically belong to his case. Lib- erality in amendments in fair cases and for legitimate objects will, in our judgment, best subserve the great and important object of all trials justice between the parties to the suit. In this case one error in the pleadings of the deft, is, that two dis- tinct substantive matters of defence have been through inadvertence placed in one plea, when they should have been set out in separate pleas. Another is, that through inadvertence and hurry they have applied their pleas or some of them to what in the plea is termed a count, when it should have said a breach. If these errors, which certainly have no bearing on the facts or merits of the cause, be not corrected the case must be decided against the defendants. This would not be effecting a " determina- tion of the cause " in the language of the constitution " according to its real merits," which the defendants ask to get at by being allowed to amend. The argument of the plffs. that leave to amend should not be allowed, because they will lose a trial, cannot, we think, avail, organized as the terms of this court now are; the second term is now our trial term, and if this argument is to have the effect con- tended for there will be but few cases in which amendments can be allowed by the court : The narr is not filed until after the first term ; the deft, pleads, and the plff. demurs; and, at the second term, the cause is set down on the argument list, and not on the trial list. The deft, cannot therefore at the term procure leave to withdraw or amend his plea, because no trial before a jury can take place at that term, and the plff.' will have lost a trial. So too if the deft, demurs and the plff. should wish to amend. This rule therefore cannot be admitted with the present arrangement of our terms. Every application to amend is addressed to the sound discretion of the court, and its determination is to rest on that discretion. If they believe a party is by his course of pleading trifling with the STATE USE OF GODWIN rs. COLLINS ET AL. 219 court by pleading sham or dilatory pleas, or is striving by his pleas to prevent the cause being brought to an earJy decision on its true points, the sound exercise of that discretion would deny to the party the leave to amend. If on the other hand nothing of this kind ex- ists, and the amendment be necessary to a just decision of the case, and the rights of the opposite party be not prejudiced by granting the leave, the court would grant it in order that a " determination on the real merits should not be hindered/' The court can see nothing in this cause to induce a 'belief that the pleadings of the defts. had for their object delay, or that they de- signed to plead what they did not believe to be tenable. Pleading specially to actions on the recognizances of sheriffs has not been usual in this state; we have no knowledge of any case in which it has been done. They have usually been tried on the short plea of per- formance perhaps "generally and specially'' added to the plea; under this plea the matters of defence have been given in evidence. Pleading at length being now for the first time used in these actions the defts. have introduced certain pleas which they contend are good pleas to the action while on the other hand the plffs. deny that they can be used or sustained in this action. Whether they are proper pleas is not noAv a question before us but we cannot and do not suppose that they have been pleaded with any other view than a fair one, to obtain the opinion of the court as to their -sufficiency in a new case. On inspecting the record we cannot see any thing to induce us to believe that efforts have been used by the defts. to prevent the plffs. from obtaining an early trial of their action. One continuance of this cause has been had at the instance of the defts. and the plffs. have procured its continuance four terms; at March and October terms 1831, it was continued on the affidavit of the plffs. At April term 1832, the plffs. obtained leave to amend their narr and the amendments were not filed until after the coiirt rose; this continu- ance we presume was at the instance of the plffs. as leave to amend was obtained although it is not so stated ; at the last term it was con- tinued by reason of the absence of the plffs. witnesses; at October term 1832, it was continued at the instance of the defts. the only continuance which it appears they obtained. The record therefore does not show that the defts. have kept off the trial of this cause more than a single term. We therefore grant the defts. leave to amend their pleadings on the payment of the costs of the term, and on payment also of any costs that have accrued for office copies of the pleadings filed since the last term." (a) (a) 1 Petersd. 504. The court may amend at common law in all cases whilst the proceedings are in paper, that is, until judgments signed, and during the term in which it is signed. Amendments are in the discretion of the court for the furtherance of justice; and it is no ground for refusing an amendment that an advan- tage is taken from one party which he before possessed, since that is the case in every amendment. When are the pleadings in England considered as out of paper? Some of the books speak of them as being of record when the issue is made up ; 220 MORRIS vs. CANNON. MARGARET MORRIS late HUDSON vs. WINGATE CANNON. Replevin will not lie at the suit of a master to recover an apprentice. It seems that replevin will not lie for a free man. REPLEVIN for a negro boy; an apprentice. Pleas non cepit and property in the executor of William Morris the late husband of plff. Case stated. " The negro boy in the declaration mentioned was, on the 2nd of April 1830, bound as an apprentice to Margaret Hudson, her heirs but the cases are numerous of amendments at common law after issue joined both of fact and law. Hardy vs. Gilding. Pledges inserted in narr after joinder in demurrer. Davie vs. Atkinson. Narr amended after joinder in demurrer and one argument. Brown vs. Crump. New counts added after demurrer. Bishop vs. Stacey. Amendment allowed after special demurrer and argument. Mace vs. Lovell. Narr amended after issue joined and the record made up ready for trial, the proceedings being in paper and not considered as being of record 'till verdict. This amendment was at common law. 3 Salk. 31; 1 do. 47; 1 Petersd. 504. Whilst the narr is in paper, amendments allowed; but when it comes in parchment no amendment allowed except by statute, " for 'tis then a record." Co. Litt. 260, a. Record is a memorial in rolls of parchment of the proceedings and acts of a court of justice, &c. During the term wherein any judicial act is done the record remaineth in the breast of the judges of the court, and the roll is alterable during the term as the judges shall direct ; but after the term is past, then the record is in the roll, and ad- mitteth no alteration. Steph. PL 106. Until the judgment is signed either party is in general at liberty to amend his pleading as at common law. 1 Tidd Pr. 656. It is now settled that after a demurrer or joinder in demurrer either party is at liberty to amend, as a matter of course, whilst the proceedings are in paper. It appears from these and numerous other authorities that, whatever may be the technical difference between proceedings in paper and of rec- ord, the pleadings were amendable at common law, in the discretion of the court, at any time before judgment. And the constitution gives to this court the same power of aKowing amendments. Sec. 16, Art. 6. If the court possess the power, in what cases shall it be exercised? Is it to be confined to such defects as are bad only on special demurrer, or is it to be extended to all formal defects whatever, whether bad on general or special demurrer. If amendments are to be restricted to the former, the power is of little use ; both the reason for its exercise and the authority of adjudged cases extend it beyond this narrow construction. The object of amendments is the attainment of justice; the correction of errors and mistakes in preparing causes for trial so that they may be determined " according to their real merits." The system of pleading though excellent in itself and conducive to the ends of justice, is obnox- ious to the objection that it sometimes places the decision of causes upon points apart from their merits. The modern practice of the courts in al- lowing amendments liberally has been with a view to correct this tend- ency. With respect to defects merely formal, and such as would be bad MORRIS vs. CANNON. 221 and assigns; at the time and before the binding he was a free negro; Margaret Hudson afterwards, became the wife of William M. Mor- ris, who took possession of the said negro apprentice and held him until his death. After his death his executor took possession of the boy and hired him to th'e deft. The negro boy was duly inventoried and appraised in the estate of William M. Morris. On this replevin the sheriff delivered the said apprentice to the plff. in whose posses- sion he still remains." Layton, for plaintiff. The first question is as to the propriety of the action Will re- plevin lie for a free boy? Negroes are recognized by our laws as property, and there can be no difference in this respect between a slave and a servant for a limited period. The master is equally en- titled to the services of either, and has a qualified property in the servant. The services of the apprentice being a subject of property the master is entitled to the custody of the apprentice and to all such remedies as are needful for obtaining or keeping the possession or custody of his servant. The writ of replevin is the proper remedy wherever property is wrongfully detained. Com. Dig. Second. Mrs. Morris as the survivor of her husband is entitled to the unexpired term of this boy. Dig. 37. He was bound to her be- fore her marriage with Morris, during that marriage her rights and liabilities under the indenture of course devolved on the husband, but at his death she again became liable to the performance of her covenant to the boy and entitled to his services. There was no ac- tual assignment of the indenture to the husband; it is therefore like a debt due to the wife dum sola, not collected during marriage, and which survives to the widow. In relation to the unexpired time of the boy, Morris never obtained a legal right to it in possession as he might by taking a transfer of the indenture and thus placing himself in the character of an assignee. The binding was to Margaret Hud- son, her heirs and assigns not to executors or administrators the boy therefore is not transmissible to the executor of the husband nor is such executor bound by any of the stipulations in the indenture. Dig. 42. A different construction violates the contract of the parties which was for service to be rendered to Mrs. Hudson, her heirs and assigns, and not to the executor of her husband, nor even to her own executor or administrator, unless the administrator is named he can- not take as a legal assignee the word assigns means actual assignee. only on special demurrer, amendments are allowed of course ; and for de- fects in substance, or such as would be fatal on general demurrer a dis- tinction is well taken where such defects are inherent in the case itself and where they arise only from the manner of statement. In the latter case they may be amended though bad on general demurrer. Steph. P. 503, 5. If the pleading be insufficient in form the pleader is to consider whether it is worth while to take the objection, recollecting the indul- gence which the law allows in the way of amendment. On the other hand, supposing an insufficiency in substance, he is to consider whether that insufficiency be in the case itself or in the manner of statement, for on the latter supposition it might be removed by an amendment, and it may be therefore not worth while to demur. Idem 182-3. From these authorities it is obvious that the power of allowing amend- ments is not confined to such defects only as are bad on special demurrer. MOHRIS rs. CAXXOX. And if Mrs. Hudson's administrator would not be entitled under this indenture, much less will the executor of her husband who never placed himself in the character of an actual assignee. Cullcn, for defendant. Replevin will not lie for a free man; it lies only for goods and chattels, for articles which may be the subject of property. All the right the master possesses even to the services of the apprentice is derived from the act of assembly, and that act gives a specific rem- edy for the violation of that right, for depriving him of those ser- vices by inticing away or harboring his servant. Dig. 41, sec. 16. There is also a common law remedy for harboring an apprentice. If there was nothing in the thing itself inconsistent with the idea of property the specific remedy for the violation of the master's right to the services of his apprentice would distinguish it from other kinds of property and exclude the remedy \>y action of replevin. Second. Who is entitled to the services of this boy on the death of his master? He must go either to the executor of that mas- ter or he is free. On the marriage of Mrs. Hudson all her right to the boy and interest under the indenture passed to William M. Mor- ris, her husband; passed by operation of law. She had no control over him or the indenture she could not have assigned them even to her husband, for her separate character was merged in his. No act of his could give him a more perfect right to the boy than he ac- quired by thfe marriage and the actual possession of the boy which he had. It is not therefore like a chose in action not reduced to pos- session during the husband's life. Layton, in reply Contended that the remedy under the act of assembly for enticing away or harboring an apprentice was not exclusive, but only cumu- lative. It refers not to a disputed claim to the property in the ap- prentice, but to acts of wanton violation of the admitted rights of the master. The 8th section of the act of assembly, (Dig. 38 ,) expressly rec- ognizes the master's right to the services of the apprentice, and to the " custody and keeping of the apprentice," and to " take and hold him or her," &c. Having the power to take and hold and keep the servant for the purpose of obtaining the benefit of his services to which the act acknowledges his right, the mode of executing this power is not by brute force but by those ordinary remedies of the law provided for the recovery of property to which a man is enti- tled and by which through the peaceful instrumentality of legal pro- cess he takes his property from another who has illegally deprived him of it. The remedy furnished by the act of assembly is not ade- quate for this purpose it gives him compensation in damages for enticing away or harboring his apprentice, but it does not restore that apprentice to his custody. Judgment of non suit, on the first ground taken by deft's. counsel ; the court intimating an opinion that the plff. was neverthe- less entitled to the unexpired time of the apprentice. Layton, for plaintiff. Cullen, for defendant. WAPLES' LESSEE vs. HARMAX. 223 LESSEE of BURTOX WAPLES vs. EPHKAIM HARMAX, tenant. Devise to A. " to be holden of him, his heirs and assigns forever. But in case A. should decease without lawful issue, then the lands given unto him shall go and descend unto B. him and his heirs lawfully begotten of his body forever " gives A. but an estate tail. EJECTMENT. Case stated. " Burton Waples being seized of the lands, &c. in the declaration mentioned, on the 16th of August, A. D. 1796, duly made and pub- lished his last will and testament in writing, attested signed-, as by law is required to pass real estate in the state of Delaware. The testator by his said will devised the said lands, &c. to Woolsey Wa- ples by the following words " I give and bequeath unto my grandson Woolsey Waples, the remainder of the tract of land whereon I now dwell called ' Batchelors lot/ being the eastmost part of the tract which I bought of my brother Peter Waples, afsd. adjoining the In- dian river; also ten acres of land which I bought of Catharine God- win, adjoining the land afsd.; and also seventy-five acres of land which I bought of Stockley Waples, and being part of the land called " Batchelor's lot,' and part of the land called ' Cheat,' with the ap- ourteuances thereunto belonging, and to be holden of him, his heirs and assigns forever. But in case my grandson, Woolsey Waples should decease without lawful issue, then the lands given unto him shall go and descend unto my grandson Wallace Waples, him and his aeirs lawfully begotten of his body forever." The said Wallace \Vaples to whom the said lands are limited and devised over in the event of the death of the said W r oolsey without issue, was a near Delation of, and capable of being collateral heir to, the said Woolsey. The said Woolsey and Wallace survived the said testator. The said V\ r oolsey was lawfully married to a certain Xancy Waples, who has survived him, and by whom he had issue five children, of whom :he plff., the said Burton Waples is the first and eldest son, and who aas brought this ejectment to recover the possession of the lands, &c., devised to the said Woolsey as afsd. The deft. Ephraim Har- >nan is in possession as the tenant of the said Xancy W r aples. The ijlff. claims all the lands devised as afsd. to Woolsey Waples, -except such part thereof as has been assigned to the said Xancy for dower. The question was whether Woolsey W r aples took a fee simple or an estate tail under the will of his grandfather. The court were of opinion that the said will passed but an estate tail; and directed judg- ment to be entered for the plff. for such part of the land devised as was not included in the widow's dower. 16 Johns. Rep. 382. An- derson vs. Jackson. Cullen, for plaintiff. Layton, for defendant. 224 WOODLIN & BLACKISTON vs. HYNSONS. HANNAH KINGGOLD vs. JACOB R. GRIFFIN. If a trial be granted after judgment entered on a judgment note it vacates that judgment, unless there has been a levy. And in such case there is no appeal from a subsequent judgment under five dollars and thirty-three cents. APPEAL from the judgment of a justice of the peace. A judgment had been entered by the justice at the suit of Ring- gold vs. Griffin on a judgment note. The deft, made affidavit as required by the act of assembly (Dig. 337, sec. 12) and the jus- tice appointed referees to try the cause, who reported; and the jus- tice afterwards set aside and vacated their report and gave judg- ment against the defendant for four dollars and sixteen cents, costs; from which an appeal was taken. Frame, of counsel for Griffin, moved to dismiss the appeal on the ground that the judgment was for a sum under five dollars and thir- ty-three cents, and that no appeal lay from the original judgment. Per curiam! In this case there being no execution, no lien, and a trial ordered by the justice, it is as if an original action had been brought on the note without entering judgment under the power of attorney, the opening of the judgment in such case doing no harm to any one. But if there had been an execution levied the vacating the judgment would necessarily have destroyed the execution and with it the lien of the party; therefore the act provides in such case that the judgment and execution shall stand unless the deft, gives security. By ordering a trial in this case the judgment entered on the war- rant of attorney was vacated; and the proceedings were to be had as if an action had been regularly commenced on the obligation; con- sequently the only judgment now remaining of record on the record of the justice is the judgment for four dollars and sixteen cents, the amount of the costs which being under five dollars and thirty-three cents is final and no appeal lies therefrom. (Dig. 342, sec. 22.) s Appeal dismissed. PETER WOODLIN and EBEN. BLACKISTON vs. MARTHA HYNSON and WILLIAM HYNSON. After depositions are published and read further testimony cannot be taken. If the competency of a deposing witness is to be attacked, exceptions should be filed to notify the other side. PETITION for freedom. In this case the court said in relation to the taking of depositions; That after depositions had been returned and published and read by the opposite party or his counsel, it was not competent for such party to file interrogatories and take further testimony. He must file his interrogatories before publication of the depositions on the other side; or if published, before reading them; otherwise the testimony will be rejected. ANK OF WIL. & BRANDYWINE vs. HOUSTON. 225 If the competency of a witness is to be attacked it must be done by filing exceptions, that the other party may have notice and pre- pare to support his witness. ISAAC DAVIS vs. JOHN DENNING, THOMAS DUHADAWAY, and JOHN M. DENNING. If referees report against a person not regularly a party in the cause the report as to him is a nullity and no judgment can be rendered upon it; but it will not vitiate the report as to other parties. CERTIORA.RI to justice. Thomas Duhadaway and John M. Denning had been duly sum- moned by the constable and non est inventus returned as to John Denning. J. M. Denning and Duhadaway appeared and claimed a trial by freeholders who were appointed. John Denning did not ap- pear. The referees reported no cause of action against Duhadaway and J. M. Denning and that $35 29 was due from John Denning to plff. whereupon the justice gave judgment against Davis for costs. Per curiam. In this case Duhadaway and J. M. Denning were the only parties before the justice. They submitted the matters in controversy to referees, who decided that they were not indebted to the plff., and on this part of their award the justice properly gave judgment against Davis for costs. They further reported that John Denning was indebted to the plff. in the sum of $35 29. They might with equal propriety have reported that any other person not a party to the record was so indebted. John Denning was not be- fore them and they had no authority to pass upon his rights. The award therefore against John Denning being against a person not a party to the record is a nullity and void; the justice could not have given any judgment against him upon that award; and therefore the judgment against Davis for costs was a proper judgment and the pro- ceedings below must be affirmed with costs. Judgment affirmed. THE PRESIDENT, DIEECTOES AND CO. of the BANK OF WIL- MINGTON AND BEANDYWINE vs. GEOEGE HOUSTON. To charge a party as indorser there must be an indorsement either in person or by procuration. A collateral agreement to be bound as indorser does not make the partv an indorser. The liability is on the agreement, but a count upon it ma*y be joined in an action on the note. To recover on the money counts the plff. must, show that money has been actu- ally received by defendant to his use. CASE. Pleas non assumpsit; payment; discount and the act of limitations. The plffs. declared against Houston as the indorser of three sev- eral promissory notes dated the 8th of March, 1832, drawn by 226 BANK OF WIL. & BRANDYWINE vs. HOUSTON. Joseph Roberts in favor of Margaret Booth, Peter B. Dulany and Evan H. Thomas respectively, and amounting together to $1400, and indorsed by these persons respectively, to the plff. Similar notes had been drawn by .Roberts in favor of the same persons for the same amounts dated 30 June, .which had been indorsed by the payees and also by this deft. These were renewed on the 8th March, by the notes declared on in this action, which were indorsed as afsd. by the payees respectively, but not actually indorsed by Houston, except through the medium of the following agreement, which was offered in evidence with the notes to charge him as an indorser. " Prom'y notes Jos. Roberts to Margaret Booth for $600; dated 30 June, '31, at 60 days. Same to Peter B. Dulany for 600; " Same to E. H. Thomas for 400; To Jos. P. Woollaston, cashier of the Bank of W. & Brandywine: " Sir, As I live at a distance from the bank, and being an indorser on the above mentioned notes in your bank, I wish to inform the board of directors through you, that in case it should be found con- venient or expedient to renew said notes for the whole sum or any part thereof, I would not wish the drawer to be put to the trouble of finding another indorser, but the directors aforesaid may hereby con- sider me as bound in any or every renewal of said notes for the whole amount or any part thereof whenever the same may fall due as much so as if I were personally present, and my sign manual in- dorsed on the said notes, it being understood that the several in- dorsee, to wit: Margaret Booth, Peter B. Dulany and Evan H. Thomas are also to renew their indorsements on the several notes. Dated July 18th, 1831. (Signed) GEO. HOUSTON. Witness, J. Wales." Under this agreement the notes were several times renewed, the last renewal being on the 8th March, 1832, when the notes were given, on which the present suit is founded. The declaration was against Houston as an indorser and not on the guarantee. Plaintiff offered the notes in evidence Objected to. Booth, for defendant. This action is founded on three notes drawn by Roberts and in- dorsed to the bank by Margaret Booth, Peter B. Dulany and Evan H. Thomas. The declaration is in the usual form setting out the indorsement, and also an indorsement by Geo. Houston. The notes offered in evidence do not sustain this declaration; on none of them does the name of George Houston appear. "But it is alledged that Houston by a certain agreement made himself liable as an indorser. He may be liable on that agreement to the same extent as if he had indorsed the notes, but he cannot be made liable in the character of an indorser. He cannot be sued on the notes. He is no party to them. Whatever may be his liability on the separate agreement he is clearly not liable as an indorser. To make a man liable on a bill or note he must become a party to it: his name must appear on it either by his own signature or that of an authorized agent subscrib- BANK or WIL. & BRANDYWINE vs. HOUSTON. 227 ing for him. Chitty on bills 30; 2 Campb. 308; 15 East. 7, 10; Chitty on Bills 115, 6; 1 Campb. 442. Houston here is not an indorser, either by himself or any author- ized agent. The agreement does not authorize another to indorse for him; and even if it did, the. general indorsement declared on would not be supported by evidence of such special indorsement. If the indorsement be by procuration it must be so declared on. 12 Com. Law Rep. 223-4.' If there be no indorsement then, the variance between the narr and the evidence offered is obvious. No authorities need be cited on that subject. Read, jr. on the same side. There can be no doubt on this subject since the decision of this court in Erwin & Lamborn. (ante 125.) In that case the court distinguished between the characters of indorser and guarantor, by reasoning applicable also to this case. Where the right of action is given by statute, as this is, every thing must be conformable to the statute or the action will not lie. This action is founded on the notes. The liability according to this suit is by reason of Houston's indorsement of certain notes which when produced have no such indorsement on them. They then set up a separate agreement by Houston, that he will be considered as an indorser. What is the effect of this? Suppose it broken an ac- tion lies upon it, not upon the notes. The plff. might have joined a count on the agreement with the other counts in this narr as they all sound in damages. The most that can be said of this letter is that it is an agreement to indorse, but it is not an indorsement ; and any action against this deft, must be founded on the special agreement. J. A. Bayard, for plaintiffs. It is not denied that this agreement relates to the notes in ques- tion, nor that they were discounted on the faith of the agreement. That the design and intention of that 'agreement was to place Hous- ton precisely in the relation of an indorser to these notes is equally clear. The arrangement was made to accommodate the drawer and the deft, to save him the trouble of an actual indorsement at every renewal of the notes. The question then arises whether a person designing to charge himself as an indorser can do so without an in- dorsement actually made by himself or by another regularly author- ized by him to indorse. We contend also that this agreement does authorize the bank to indorse these notes for Houston, and that such indorsement can be made at any time, even at the trial. We treat it as an indorsement by procuration, and insist that the cashier of the bank has now the right to put Houston's name on the back of these notes by virtue of his agreement. It does not require a letter of attorney to authorize such an indorsement; any agreement showing that the deft, in- tended the plff. should place him in the condition of an indorser au- thorizes him to use the deft's name for that purpose. And the actual indorsement being but a matter of form to comply with the usages of mercantile transactions may, in the execution of the agreement, be made at any time, even at the trial. As in the case of a blank in- #28 BANK OF WIL. & BRANDYWINE vs. HOUSTON. dorsement the party has right to write over it, at any time, any thing consistent with the nature of the agreement." We do not, therefore, contend that a man can be made a party to a bill without his name appearing on the bill; but that if a party has by his own agreement placed himself in the condition of an indorser he gives authority to the plff. to supply the matter of form by actu- ally indorsing his name. The authority for this purpose is irrevoca- ble after the note is negotiated on the faith of it. I admit that where the indorsement is laid to have been made by the deft. " his own handwriting being thereunto subscribed " you cannot prove an indorsement by procuration, for the narr is descrip- tive of the mode of indorsement; but where the plff. charges the deft, generally as an indorser without making it matter of descrip- tion, he may prove an indorsement by procuration. Chitty's Plead- ing is to that effect. You need not state an indorsement by procura- tion, but if you do you must prove it. If the indorsement be stated generally it will be supported by proof of an indorsement by an agent, for qui facit per alium facit per se. The narr in this case does not confine us to the proof of an indorsement by Houston in person. Have we then by the agreement ,the authority we contend for to indorse these notes for Houston? This is an equitable action ; relating to parol matter; not under seal and subject to liberal construction in reference to the intention of the parties, the facilities of trade, &c. Wales on the same side, cites Cliiiiy 187; Strange 648; 3 Burr. 1674; 15 Johns. 6; Story Am. Prac. 59; 11 Mass. Rep. 436. In this case the agreement and notes are all one transaction accom- panying each other, and the agreement is a part of the notes. It is therefore in legal effect an indorsment and we have declared on the whole transaction according to its legal effect. The Court stopt the other side. CLAYTON, C. J. This action is against Houston as an indorser, and the notes offered in evidence do not themselves show any con- nection or liability of the deft. It appears by other evidence that three notes were drawn by Jos. Koberts in favor of certain persons and indorsed by them, and also by Houston to the bank. Houston afterwards made an agreement with the bank in relation to the re- newal of these notes. This is an undertaking to indorse, or an agreement to hold himself responsible as an indorser; in either case he is liable, but liable on the agreement. The action should have been on this agreement specially setting it out; it might have been done in this case by adding a count to that effect. It has been con- tended that this was an authority given to the bank to indorse these notes for the deft. We admit that this authority may be made out by inference by the course of trade, as where a wife was accus- tomed to indorse for her husband but here is a written agreement and we cannot go beyond it. It gives no such authority. The party agrees to be bound as much as if he had indorsed the notes, but he does not indorse them nor aiithorize another to indorse for him. He is not then an indorser though liable as much as an indorser; but how liable? ~Not on the notes, for this would make him an actual in- dorser, but on the agreement. A distinction is taken in the books be- BANK OF WIL. & BRANDYWINE vs. HOUSTON. 229 tween the acceptance of a bill drawn and one to be drawn; in the former case it may be by collateral writing, but in the latter, not. Here, this agreement is in relation to notes to be drawn in future: and the case is stronger than that of an acceptor, for the indorser is quasi a new drawer. We are therefore of opinion that the evi- dence offered is inadmissible in this action. The plffs. then proved the notes of the 30th June 1831, and the indorsement by Houston of those notes. That these notes were run- ning when the agreement aforesaid was made, that the notes in question were discounted on the faith of that agreement and were but renewals of the old notes. That the old notes were cancelled, but they were not paid otherwise than by the new notes. They also gave in evidence the official bond of Jos. Eoberts as prothonotary of the late court of Common Pleas; certain proceedings showing that money to which the plff. was entitled was paid into court, and for which Eoberts was responsible; and they further proved that Hous- ton was the surety of Koberts in his official bond, and that these notes were discounted to enable him to pay this money to plffs. for which he was then responsible as prothonotary. The plff. now offered all the notes and the agreement as evidence under the money counts. Objected to. Rogers. In order to support an action for money had and re- ceived, the plff. now resorts to the original notes of June 1831, which have been paid off and discharged. When a note is declared on and also money counts added, the only way the money counts can be sustained is by the production of the notes. You may some- times be unable to prove all the requisites to charge an indorser as such, and may yet recover on the money counts, but it can only be by giving the notes in evidence and connecting them with a consid- eration. The notes of March 1832, have no bearing upon Hous- ton: he is not a party to them; they are not evidence in this cause, and the original notes have been paid. They bear the bank's stamp of discharge. Bayard. In the money counts we are not bound by the special contract. If we can show value received, money advanced, or con- sideration existing between the parties we can recover. We here show a consideration. The liability of Houston as surety for Eob- erts in his official bond. Money paid into court and ordered to be paid to plffs. The notes discounted on account of this liability. The money was advanced then for the benefit of Houston the surety as well as for Eoberts, and by his consent and agreement. " The Court thought the evidence not sufficient for the plffs. to recover under tbe money counts. Houston was the surety, together with Price, of Eoberts in his official bond. Any liability which He had incurred on that bond was divided by Price. His condition was in no wise bettered, but rendered worse by the discounting of these notes. No consideration of advantage therefore passed to him. To hold him liable on the money counts would be to dispense wjth the provision that was made in his agreement that Margaret Booth, P. B. Dulany and E. H. Thomas, should also indorse, which be made a condition precedent. He is liable on his agreement and not otherwise." 230 STATE USE OF HERDMAN vs. HOUSTON. It is now settled that the plff. can in no case recover under the count for money had and received unless money has actually been received, and for the use of the plff. 1 East 434; 1 Camp. 175; Chitty 366. If the drawer has been discharged from liability upon the bill by the laches of the holder, the latter cannot recover on a count for money had and received. Chitty 364. The plaintiffs suffered a nonsuit. Bayard and Wales, for plaintiff. Booth, Read, jun. and Rogers, for defendant. The State for the use of WILLIAM HERDMAN vs. GEORGE HOUSTON. Nul tiel record is not a good plea in an action on the official bond of the pro- thonotary or other public officer, though such bond is directed to be recorded. Quere: Whether non est factum can be pleaded to a public bond without affi- davit denying the execution? So much only of an -instrument need be set out as entitles the plaintiff to his action ; but he must set it out truly. DEBT on bond. This was an action on the official bond of the prothonotary of the late court of Common Pleas for Newcastle county. The declaration set out that a certain Joseph Eoberts being the prothonotary, &c., executed, together with the said George Houston and a certain Price, his sureties, a joint and several bond to the state of Delaware in the penalty of $3,000: conditioned in substance that the said Joseph Roberts should well and diligently execute his office of protho- notary aforesaid, and duly and faithfully fulfil and perform all the trusts and duties to the said office appertaining; and then alledged a breach that a large sum of money to wit: the sum of $1,711, had been paid into court and delivered to the said prothonotary, under the rules and orders of the said court; and that the said court did on, &c., order and direct the said prothonotary to pay the said sum to the plff. which he neglected to do, &c. &c. The defendant pleaded First. The act of limitations. Second. That the said sum of $1,711, was not paid into court and delivered to the said J. Roberts, prothonotary, &c., nccordinsr to the rules and orders of the said court as set forth, &c. Third. That the said J. R. did well and diligently execute his office, &c. Fourth. Nul tiel record. Bayard moved to strike out the plea of nut tiel record as inappli- cable to the action. Rogers, for defendant. The suit is on the official bond of the prothonotarv of the late court of Common Pleas, which bond is by law directed to be re- corded. It is therefore a record and the plea of mil tiel record is applicable and proper. Bayard. The direction to record the bond is an incident to its validity and is a fact to be tried by the jury. A mortgage is by law STATE USE OF HERDMAN vs. HOUSTON. 231 required to be recorded, yet this court in Gilpin's case decided that nul tiel record could not be pleaded to it. If you would deny the bond or mortgage, you must plead non est factum. The court directed the plea of nul tiel record to be stricken out. Rogers then moved for leave to amend by putting in the plea of non est factum, which was objected to unless the deft, would file an affidavit denying the execution of the bond. A majority of the court allowed the plea to be put in with leave to the plff. to amend his narr if he thought fit, on the ground that the deft, had been deprived of a defence which he expected to avail himself of on his plea of nul tiel record. The Chief Justice thought that as this was a public bond, a party to it should not be permitted to plead non est factum without an affidavit denying its execution. The plaintiff declined amending his narr. Bond offered in evidence. Objected to for variance. Read, jr. There are many and material variances between the bond declared on and that now offered in evidence. The latter clause of the .condition that the prothonotary shall truly and without delay deliver over to his successor the^ books, records, papers, &c., is entirely omitted from the narr. Where the action is on a written instrument the whole of it must be set out. If a material part be omitted it is fatal. This bond is under a statute and must therefore follow the statute strictly. Digest 456. Eefers to Randel vs. Wright on the subject of variance, ante 34. The Court stopt Mr. Bayard. The plff. has declared on this bond according to its legal effect, and does not profess to set it out according to its tenor. He has set it out substantially. A party need not set out the whole of a con- tract, but only so much as he founds his action upon, and if that part be set out substantially when he professes to do no more, it is suffi- cient. If there be any thing omitted which controls, or qualifies or restrains the part declared on it will be fatal, for then the substance and legal effect of the contract will not have been expressed. The objection here is, not that the plff. has not truly set forth that part of the bond on which he alledges a breach, nor that the same is in any degree restrained or affected by the part omitted, but that he has omitted to state a further obligation of the deft, that the officer for whom he was surety, should deliver over to his successor the books and papers of his office. With this part of the bond the plff. in this action has nothing to do. He has set out truly so much of the bond as entitles him to his present action, and that is sufficient, where a party undertakes to set out an instrument by its tenor in liaec verba it becomes descriptive of the instrument itself, and any omission or a slight discrepancy, destroys the identity of the instruments pleaded and proveu The plff. then made out his case by proof of the bond, the pay- ment of money into court, and an order of court dated llth Decem- ber 1832, on the prothonotary, to pay the sum of $1,128 91 to the plff. Herdman. Read, jr. Eemarks on the plea of the act of limitation. Digest 397. Sk) action shall be brought upon the official obligation of any 232 BAILEY vs. SEAL. prothonotary, &c., after the expiration of three years from the accru- ing of the cause of such action. When did this cause of action arise? The money was brought into court on the 16th December 1828, more than three years before the bringing of this suit. The Court decided that the cause of action in this case did not ac- crue until the money was directed to be paid out to the plff. on the llth December 1832. Verdict for plaintiff for $1,194 34. J. A. Bayard, for plaintiff. Read, jr. and Rogers, for defendant. JOHN BAILEY vs. JOSHUA T. SEAL. It seems that a promise by indorser with knowledge of the facts is a waiver of notice and also of the demand on drawer. Seven per cent interest allowed here on a note drawn in New York. CASE. Pleas, non-assumpsit, payment and set off. * The action was on a promissory note for $409 04, dated llth November 1829, at ninety days, and drawn in New- York by, J. B. Norris in favor of indorsed by the deft. The plff. proved the indorsement of deft, and gave in evidence a letter from deft, to plff. dated 13th February 1830, the day after the note be- came due, expressing his regret that the drawer had not paid it, and inclosing a new note for the amount of the old one with interest and charges of protest, &c. He also produced two other letters from the deft, dated 22nd February and 4th March 1830, both containing promises to pay the note : and he here rested his case. Bayard, for deft, moved a nonsuit. In an action against the indorser a demand on the drawer and no- tice to the indorser must be proved. A waiver of the notice .by the indorser will not excuse the want of demand on the drawer. With- out such demand his promise to pay is a nullity ; it is without consid- eration because without liability. The obligation of the indorser is wholly on the note; and according to mercantile usage it is, that he will pay the note if a demand be made on the maker on the last day of grace, and on failure of payment that notice be given to him. He may waive this notice as he has done in this case, but that does not obviate the necessity of a demand. Hamilton, for plaintiff. The letters in evidence not only dispense with the note but prove the demand. The day after the note became due the indorser wrote that he was sorry Norris had not pay it and himself promises pay- ment. He also incloses a new note in the way of payment which includes interest and protest. This admits the demand, for without it there would have been no protest. The laches of the holder re- leases the indorser, but he may waive that release by a promise, &c. Chitty on Bills 301, 3, n. Bayard. The authority cited relates only to a waiver of notice ; RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 233 such waiver does not supply a demand. (Sed vide 2 Stark. 272; Chitty on Bills 303 ; 2 Campb., &c.) The plff. had a verdict subject to the opinion of court: and judg- ment was afterwards rendered for him by consent, and a rule granted on the application of Seal's special bail to show cause why an exone- retur should not be entered on the bail piece. Vide post 367. Hamilton, for plaintiff. J. A. Bayard, for defendant. JOHN EANDEL, jun'r. vs. The PRESIDENT, DIRECTORS and COMPANY of the CHESAPEAKE and DELAWARE CANAL. Construction of the contract between John Randel, jun., and the Chesapeake and Delaware Canal Company. A contract is to be construed with reference to the whole instrument. No form of words necessary to make a covenant; but any expression in a sealed instrument which manifests an intention to bind either party to do or omit any act, possible in itself and not immoral or unlawful, will make a covenant. If there be any doubt on the words of an agreement they are to be referred to the proper party. If the language used be the language of both parties, it may be taken distrib- utively, and used as the words of either, according to the true intent and meaning of the contract: And, even where the language is that of the covenantee, it will be applied to the other party, if the intent so require it. An agreement on the part of A. to pay B. every fortnight for the work which A's. engineer shall certify to have been done by B. is a covenant on the part of A. that his engineer shall make the certificates. An agreement that the plff's work shall during its progress be carefully exam- ined and inspected; and to prevent misunderstandings and disputes, it is agreed that B., W. or some other competent engineer, to be selected by the defendant, shall be the inspector of the works, and shall estimate the exca- vation and embankment, and his estimate thereof, when certified to the defendant, shall be final and conclusive between the parties construed a covenant by defendants to select an engineer, and that their engineer should inspect and estimate the work; and a covenant on the part of the plaintiff, that he would be bound by the result of such estimate. An agreement that in case the plaintiff shall, from, the default of the defend- ant, be prevented from pursuing the best mode of executing his contract, the pecuniary damages sustained by him in consequence thereof, shall be certi- fied by the defendants' engineer, and. on his certificate, which shall be final and conclusive between the parties, the defendant shall make to the plaintiff such reasonable compensation as by said certificate may be fixed con- strued a covenant on the part of the defendant, that in case of prevention, their engineer should make a certificate of damage. An agreement that the time within which it shall be incumbent on the plaintiff to complete his contract shall not be taken to be less than four years, is a covenant by the defendant that he will allow the plaintiff four years to com- plete it in: and the unlawfully driving him away from the work within that time is a breach of the covenant. An agreement that if the opinion of the defts'. engineer shall be that the plff. refuses or unreasonablv neelects to prosecute his contract such engineer may certify the same to the defts. and on his certificate the defts. shall have the power of determining that he has abandoned it: is a covenant on the part of the plff., and gives to the deft, the power, upon the certificate beinp made, to put an end to the contract. "Such certificate does not make the contract void but only voidable; and the power of avoiding it may be icaircd. Any discretionary power may be waived. And though this power of annulling the contract i derived from a deed, or in- strument under seal, it may be waived by parol. 30 ' 234 HANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. The party having the power of establishing the forfeiture, or of avoiding a voidable contract, must do it within a reasonable time, and in a lawful man- ner, or it is a waiver. Any act legally inconsistent with the exercise of the power will amount to a waiver. A prospective agreement to refer all matters in dispute which may hereafter arise will not oust the jurisdiction of the courts over such matters. And even in the case of a submission of existing disputes either party has the right to revoke the submission and prevent the award: though he would be liable on his agreement to refer. A contract may be declared on by setting out a counterpart executed by only one of the parties. In a plea of confession and avoidance the plea admits all the material and tra- versable facts averred in the breach; they need not, therefore, be proved; but it does not admit the damage, which must be proved. Judgment by default, or on demurrer, admits the cause of action, and estab- lishes the plff's. right to recover ; and, where the contract declared on is for a sum certain, as in debt, and the declaration either ascertains the amount or sets out an instrument from which the amount can be certainly ascer- tained by calculation, the judgment is also conclusive as to the amount. But where the matter sued for sounds in damages, or is in its nature uncer- tain, such a judgment establishes no amount of damages, but it fixes the right to recover, and the, cause of action need not afterwards be proved. In covenant the damages are merely compensatory or remunerative, and can not be exemplary. And. though the violation of a covenant be with intent to injure the other partv, the intent cannot be considered in estimating damages. The rule of assessing damages is, that whatever loss or damage naturally and immediately results from the wrong complained 1 of, the wrong doer is bound to compensate. Interest on damages is discretionary with the jury. In an action of covenant against a corporation a contract made and executed by a committee of the board of directors, but not under the corporate seal, is not evidence; though the authority of the committee be proved, and the contract actually recognized and acted upon by the company. Tlw answer of a corporation is evidence against them, though made in a different cause, and without oath. The directions of an agent of a company in relation to their business, and hia declarations at the time of giving such orders in relation thereto, or to their business generally, being part of the res gcsta, are evidence against the com- pany but his general declarations, conversations or letters not immedi- ately connected with or growing out of the discharge of his agency, are not evidence. And the nature of his agency, and its extent, may be inferred from facts, and the. connexion of his acts with the business in which he is employed. A partv calling for papers from the other side makes them evidence if he in- spects them. A director of a company, not being a stockholder nor a party of record, is a competent witness for the company. Depositions taken on leading interrogatories will be suppressed at the trial if exceptions have been filed, and the partv not taken bv surprise. f^rvice of interrogatories by copy left at the office of the attorney of the oppo- site party, is sufficient notice of the taking out a commission. A witness allowed to write out his answers to interrogatories where he was unable, through sickness, to deliver them orally to the commissioners; and the denosit'ons. t^iis tnV^n. admitted in evidence. The protect of an inland biM is not proved bv the notarial seal, hut the notary must be called: and this though it appear from the bill that it has been in- dorsed to a foreigner. COVENANT. Xarr. Pleas. Replications. Demurrers. Friday, November 29/ft 1833. This case came up for argument on the demurrers to the second and third counts of the declaration; the demurrers to the serenth and eight counts having heen argued RANDEL, JUN. m. CHES. & DEL. CANAL COMPANY. 235 at the last term. (See ante 151J The argument was conducted by Frame, Attorney General; Bayard and Jones for defts., the demurrants; and Clayton, Rogers, Read, jr., and Ingersoll, for the plff. It occupied six days. The contract declared on is set out at length in the report of the former argument, ante 151, &c. The declaration contained eight counts. First count: On the lock contract, (unimportant.) On this count issue was joined on the plea of non est faction. Second count: General plea of non est factum and issue. (First breach.) The first breach assigned in the secound count was on that clause of the contract which provides for the inspection and examination of the works during their progress, (page 152.) It was assigned in these words : And protesting, &c. " the said John Randel, jun., in fact saith that the said works by the said John Randel, jun., in and by the said articles of agreement covenanted to be performed as afsd. were not during their progress carefully ex- amined and inspected by the said Benjamin Wright, esquire, nor by any other competent engineer selected by the said party of the sec- ond part, to wit: at Newcastle county aforesaid. (Plea.) To this breach the defts. pleaded plea Xo. 3, as follows : Actio non, &c., " Because they say that heretofore, to wit : on the 30th day of July, A. D. 1825, and long before and since, one Ben- jamin Wright (being the same person mentioned in the said articles of agreement by the name of Benjamin Wright, esquire, was the en- gineer in chief for the time then being in the employ of the said defts., to wit: at Newcastle county afsd., and that on the day and year last afsd. at the county afsd. the opinion of the said Benjamin Wright then and there so being such engineer in chief for the time then being in the employ of the said defts., as afsd., was that the said John Randel, jun., did unreasonably neglect to prosecute the said contract in the said articles of agreement made and contained, and that afterwards, to wit: on the day and year last afsd. at, &c., the said Benjamin Wright then and there so being such engineer in chief for the time then being, in the employ of the said defts. as afsd., did in and by his certificate certify his said opinion to the said defts.; and that afterwards, to wit: on the 30th day of Sept'r. in the year last afsd., they the said defts. did thereupon on said certificate determine the saidj contract to be by him the said John Randel, jun. abandoned, of which said certificate and determination the said John Randel, jun., afterwards, to wit: on the first day of October in the year last afsd.;, at the county afsd. had notice; by means' whereof and by force of the premises the said defts. became and then and there were entirely exonerated from every obligation imposed on them by the said articles of agreement, except to pay for work then already done by the said John Randel, jun." (Replication J. The replication to this plea was as follows: Precludi non. &c. " Because he says that shortly after the making and executing the said articles of agreement, to wit : on or about the loth day of April, A. I). 1824, to wit: at, &c., the said John Ran- del, jun. entered upon the performance of the work so by him con- tracted and covenanted to be performed in and by the said articles of agreement, and at great expense and labor progressed in the per- 236 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. formance of the said works from day to day until the 1st day of Oct., A. D. 1825 inclusive, 'to wit: at, &c., during which time, that is to say, from the said 15th day of April until the said 1st day of Octo- ber inclusive, the said John Randel, jun., did not abandon his said contract, nor did he refuse or unreasonably neglect to prosecute the same, and that from the 30th day of July, A. D. 1825, until the said 1st day of October inclusive, in the year last afsd., on which said last mentioned day, the said John Randel, jun., had notice of the said certificate of the said Benjamin Wright, and of the said deter- mination of the said company in the said plea mentioned as is al- ledged in the said plea, the said John Randel, jun., without refusing or unreasonably neglecting to prosecute the contract in the said dec- laration mentioned, did with great expense and labor prosecute the said contract under the inspection, by and with the permission and by and under the direction of the said company, to wit: at, &c. : fr between the said 30th day of July, A. D. 1825, and the said 30th day of September in the year last afsd., the said the Chesapeake and Dela- ware Canal Company did pay to him the said John Randel, jun., for work done under and by virtue of his said contract after the said 30th day of July and before the said 30th day of September, divers sums of money amounting to a large sum, to wit: the sum of thirty thou- sand dollars, to wit: at, &c., and did then and there, therein and thereby acknowledge the said contract to be in full force and effect: and the said John Randel, jun., further in fact says, that although he did not at any time after the making of the said certificate refuse or unreasonably neglect to prosecute his said contract, to wit : at, &c. yet the said work by him the said John Randel, jun., performed as afsd. in prosecution of the said contract between the said 30th day of July and the 1st day of October inclusive, in the year las't afsd., was that portion of the work he had so covenanted to perform as afsd., which was less profitable and more disadvantageous to him the said John Randel, jun., than the work remaining to be done and performed by him the said John Randel, jun., in pursuance of the said contract after notice was given to him that the said the Chesa- peake and Delaware Canal Company, had determined his said con- tract to be by him abandoned as is alledged in the said plea, to wit: at, &c. afsd., and that the work remaining to be done and performed by him the said John Randel, jun., in pursuance of the said contract after the said the Chesapeake and Delaware Canal Company, had as is alledged in the said plea determined his said contract to be by him abandoned, and after the said 1st day of October in the year last afsd., to wit: at, &c., was that portion of the whole work so by him covenanted to be performed in and by the said articles of agreement which was most profitable and advantageous to him the^said* John Randel, jun., and so the said John Randel, jun., in fact says that the said the Chesapeake and Delaware Canal Company did before the said 30th day of September in the year last afsd. at, &c. afsd. waive the said certificate of the said Benjamin Wright, and the Dower of determining on the said certificate that the said contract of the said John Randel, jun., had been by him abandoned, and so did ap- prove, ratify and confirm the said contract, to wit: after the said 30th day of July, and before the said alledged determination of the said company that the said John Randel, junr's. said contract was by him abandoned, to wit: at Newcastle county aforesaid." RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 237 (Demurrer and Joinder.) To this replication the defts. demurred generally, and the plff. joined in demurrer. (Plea No. 5.) To the first breach assigned in the second count the defts. also pleaded as follows : Actio non, &c. " Because they say that heretofore, to wit : on the twenty-fifth day of March, A. D. 1824, at the county afsd., they the said defts. did appoint one Benjamin Wright, being the same person mentioned in the said articles of agreement by the name of Benjamin Wright, esquire, their engineer in chief, and did after- wards, to wit: on the twenty-sixth day of March in the same year at the county afsd., select him as their inspector of the said works covenanted to be performed by the said John Randel, jun., in and by the said articles of agreement, and the said defts. aver that the said Benjamin Wright remained in their employ, and was their en- gineer in chief, and remained and was the inspector of the said works selected by them as afsd., during their progress and until and after the said John ceased working upon the said Chesapeake and Delaware Canal, to wit: at the county aforesaid." (Replication.) Precludi non, &c. " Because he says that the said defts. did not appoint the said Benjamin Wright, esquire, in the said articles of agreement mentioned their engineer in chief at the time and in manner and form as is alledged in the said plea, and did not select him the said Benjamin Wright, as the inspector of the said works covenanted to be performed by the said John Ran- del, jun., in and by the said articles of agreement at the time and in manner and form as is alledged in the said plea, nor did the said Benjamin remain in the employ of the said defts., nor was he their engineer in chief, nor did he remain nor was he the inspector of the said works selected by them as afsd., during their progress, and until and after the said John Randel, jun., ceased working upon the said Chesapeake and Delaware Canal, to wit: at Newcastle county afsd., and this he prays may be inquired of by the country, &c." (Demurrer and Joinder.) The defts. demurred generally and specially to this replication, assigning for cause that the time of ap- pointing the inspector was not traversable. Plff. joined in de- murrer. (Second breach.) The second breach assigned in the second count was on that clause of the contract which provides that the in- spector of the works should estimate the number of cubic yards of excavation and embankment. The substance of the breach was " That the said Benjamin Wright nor any other competent engi- neer selected, &c., did not estimate the number of cubic yards of excavation and also of embankment," &c. (Plea.) To this breach the same plea of abandonment (No. 3,) was pleaded. (Replication.) The same replication of waiver, ut ante. Demurrer and Joinder. (Plea.) Also the same plea of appointment of inspector (No. 5,) was pleaded. (Replication.) The same as before traversing the time of appoint- ment. 238 HANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. Demurrer, general and special as before, and Joinder. (3rd breach.) The third breach in the second count was assigned on the prevention clause of the contract, (ante 153J " That llandel was from the default of the canal company pre- vented from pursuing the due and best mode of executing his con- tract, &c., that the pecuniary damage sustained by him, &c., was, &c., yet that the said damage has not been certified by the engineer," &c. Plea. The abandonment. Replication, Waiver. Demurrer and Joinder as before. (4th breach.) On the same " prevention clause." "That from the default, &c., plff. was prevented from entering upon lands for the purpose of executing his contract, that the pe- cuniary damage was, &c., yet said damage was not certified by the engineer, &c., although he well knew the premises and was fuh aware of the extent of the damage," &c. Plea. The abandonment. .Replication. Waiver. Demurrer and Joinder. (5th breach.) On the same " prevention clause." " That from the default, &c., plff. was prevented from flooding lands for the purpose of executing his contract; that the pecuniary damage amounted, &c. yet said damage has not been certified by the engineer, &c., although he well knew," &c. Plea. The abandonment. Replication. Waiver. Demurrer and Joinder. (6th breach.) The sixth breach in the second count was assigned on that clause of the contract which relates to the time in which it should be incumbent on Kandel to complete the canal. The substance of the breach was as follows : " That the canal company on the 30th September 1825, did un- lawfully and unjustly assume the power of determining and unlaw- fully and unjustly did determine that the said John Randel had aban- doned his contract, and said company did on the 20th October 1825, prevent the said J. Randel from entering upon the lands of the said company for the purpose of executing the said contract; and so the said J. Randel saith that the said company did, &c., take the time, &c. (in the words of the contract.) Plea. The abandonment. Replication. Waiver. Demurrer and Joinder. Third count. 1st breach. On the afsd. " prevention clause." " That plff. was prevented from pursuing the due and best mode, &c., by the default of the company in these particulars; that thev prevented him from entering upon lands for the purpose, &c., and unlawfully, &c., declared the abandonment; and did take the time within which, &c. That the pecuniary damage amounted, &c., yet said damage hath not been certified by the engineer, &c., although he well knew the premises, &c. Plea. The abandonment. Replication. Waiver. Demurrer and Joinder. (2d breach.) On the " prevention clause." " That the company did take the time, &c. that the pecuniary dam- ages amounted, &c. Yet the said engineer did not and would not certify, &c. RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 239 Plea. The abandonment. Eeplication. Waiver. Demurrer and Joinder. (3d breach.) " On the prevention clause." " That the company unlawfully declared the abandonment and pre- vented plff. from pursuing the due and best mode, &c. and from en- tering upon lands, &c. to wit : the lands on which the canal is located, and thereby took the time, &c. that the pecuniary damages amount- ed, &c. Yet that the said engineer although he well knew, &c. and was fully aware, &c. did not and would not certify, &c. Plea. The abatement. Rep. Waiver. Demurrer and Joinder. (4:th breach.) On the " prevention clause.'"' " That the company prevented plff. from entering upon lands nec- essary to be occupied by him for executing the work and so took the time, &c. that the damage was, &c. Yet the engineer, &c. altho' he well knew and was fully aware of the damage, &c. did not and would not certify, &c. Plea. The abandonment. Rep. Waiver. Demurrer and Joinder. (5th breach.) On the covenant to pay for work done. (152.) " That on the 15th December, 1825, Benjamin Wright, the engi- neer, afsd. certified the amount of work done at $224,291 51. Yet the company have not paid said sum," &c. Pleas (No. 7 and 8. which weye withdrawn.) Plea. (No. 9.) Payment on the 15th December, 1825, of $221,428 43, and as to the balance a set off of a bond for $15,000 due from plff. to defts. setting out the bond, &c., particularly. Replication, traversing payment of the $221,428 43 at the time and in the manner pleaded; denying that plff. is indebted to defts. in said sum of $15,000 on the bond afsd. made at the time and in the manner pleaded, and denying that said bond is due and unpaid. Demurrer general and special to this replication, because it tra- verses the time of payment of the said sum of $221,428 43. Joinder. (6th breach.) On the same covenant to pay for work done. "That the company, on the 30th September, 1825, declared the abandonment; that on the 10th June, 1826, there was due to John Randel. for work done, $350,000: yet the company have not paid," &c. Plea (No. 10.) "That between the first and seventh of June, 1824, the company revised the schedule of prices ; that a difference of opin- ion thereupon arose between the parties, and that Benjamin Wright, the engineer aforesaid, on the same day adopted and awarded the said revised schedule; that the work at the revised prices amounted to the sum of $224,291 51, which they have paid to plaintiff, to wit: on the 15th December, 1825. Replication. Denying the revision at the time, &c. the award, &c. Demurrer, general and special, because plaintiff has traversed the time of the revision, &c. Joinder in demurrer. There were also other pleas (Nos. 11 and 12) to this breach, which were withdrawn. (7th breach.) On the seventh breach of the third court issue was joined to the jury on the facts. See post. (8th breach.) On the "prevention clause." 240 HANDEL, JUN. js. CHES. & DEL. CANAL COMPANY. " That on the 19th of October, 1825, the company disposed of Handel's contract and relet it to Clement, Blackstock and Vanslyke, by reason whereof Randel was obstructed in the execution of the work, and was prevented from pursuing the due and best mode, &c., and from entering upon lands, &c., that the damage amounted, &c., yet the engineer did not and would not certify," &c. Plea. The abandonment. Hep. Waiver. Demurrer and Joinder. (9th breach.) On the " prevention clause." " That the company on the 1st October, 1825, (although Randel was duly progressing, &c.) did unlawfully declare the abandonment; and did prevent him from pursuing the due and best mode, &c. and from entering upon lands, &c. to wit: the lands on which the canal was located ; that by the default aforesaid, the damage was, &c. ; yet the engineer, although, &c., did not and would not certify, &c." Plea. The abandonment. Rep. Waiver. Demurrer and Joinder. (IQth breach.) On the " time covenant." " That Randel was duly progressing, &c. Yet the company on, &c., proceeded to dispose of the contract, and contracted with Cle- ment, Blackstock and Vanslyke; Robinson, Carr and Dexter, and did prevent him from pursuing the due and best mode, &c., and so took the time to be less/' &c. Plea. The abandonment. Rep. Waiver. Demurrer and Joinder. (llth breach.) On the "time covenant." " That Randel duly progressed, &c. ; yet the company did pro- ceed to dispose of the contract, and did contract with Clement, Blackstock and Vanslyke, and did prevent him from pursuing the due and best mode, &c., and so took the time," &c. Plea. The abandonment. Rep. Waiver. Demurrer and Joinder. (12th breach.) On the " time covenant." "That Randel was duly progressing, &c.; yet the company dis- posed of the contract, &c., and prevented him from pursuing, &c., and so took the time," &c. (13th breach.) On the " time covenant." Plea. The abandonment. Rep. Waiver. Demurrer and Joinder. " That Randel was duly progressing, &c., absque hoc that he neg- lected, &c. ; yet the company disposed of the contract and prevented him from pursuing, &c., absque hoc that the company lawfully de- clared the contract abandoned, &c., and so took the time," &c. Plea. The abandonment. Rep. Waiver. Demurrer and Joinder. (14th breach.) On the " time covenant." " That the company did take the time, &c., to be less," &c. Plea. The abandonment. Rep. Waiver. Demurrer and Joinder. Fourth count. ) mv n ,1 , P. f,-, . ( The issues on all these counts were issues of r iftti count. r t .T o j Sixth count. } *<* to the jury. See post. Seventh count. .Demurrer and judgment for plaintiff last term, ante 151, 172. Eight count. Demurrer and judgment for defendant last term, Id. Frame. Attorney General, for the defendants the demurrants: T regret the rarge the dismission of these demurrers must take, hut the intricacy of the pleadings and the great length of the record RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 241 in this cause, open up a course of argument which it will be our duty to pursue, though it may consume much of the time of this court. The questions which are to be presented in this argument arise on the pleadings belonging to the second and third counts of the declara- tion. The second count contains six breaches, the third, fourteen; all of which will be reached by these demurrers except the seventh breach of the third count, upon which issue is joined to the jury. I shall class them in five classes or five clauses of the contract. 1st. The inspection of the work. 2d. Estimating the work done. 3d. Certifying of damages by the engineer. 4th. Taking the time. 5th. Payment for work done. First. On the clause in relation to inspecting the work and esti- mating the amount : the first and second breaches in the second count. I remark in the first place that though these demurrers are to the re- plications they run back according to established rules on the whole pleadings, and open defects in the narr, as well as in the replication. Gould's Plead. 404. What is the breach? Not that the canal company did not select an engineer and inspector, but that the work was not in fact inspect- ed and estimated by the engineer. There is a clear distinction be- tween a breach that the company did not select, and a breach that their engineer did not inspect; which last is the plain meaning of the breach. And if this is doubted, and we are driven to construc- tion it must be so considered, the rule being that the construction shall be made most strongly against the pleader. 1 Chitty's Plead. 522, 241. This being the breach the question is whether the com- pany is liable for those acts or omissions of the engineer that are al- ledged as the breach. * Does the contract bind the company not onty to appoint an engineer and select an inspector but to see that the person so selected does actually inspect and certify the work? We say no. The canal company are not liable to Eandel for any omis- sion in this respect of the inspector appointed by them. There need be no difficulty about this. The contract is in writing. The inten- tion of the parties to be collected from the words of their contract is to govern; the plain meaning of the words is to be taken. Looking to this rule, the first remark to be made is that the company did not so bind themselves by a plain and direct obligation. If it be there it is at least not there plainly and directly set out. Then how is it inferred? Have they bound themselves indirectly, by inference or necessary construction. How was this inspection to be made? Not by the company, but by another. Under the contract it could not be done by the defendants themselves, but must be done by a third person. Much force is derived from this circumstance to our posi- tion, that the company were not bound for the actual inspection of the work. Would it not be singular that they should bind them- selves to the performance of an act, and at the same time put it out of their power to do it personally? What power had they to do it through another? They might appoint an inspector, but they could not make him inspect. The law holds no man to impossibilities; 31 242 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. and the court will not infer such an engagement from a contract without a plain and direct stipulation, or an obvious and necessary construction. Another reason why the canal company did not undertake that this inspector should perform the duty assigned him. It involved the ex- ercise of reason, science, skill and discretion. The parties showed they intended to commit it only to a person of skill and judgment, and they necessarily gave him a discretion in its exercise. Would it not be absurd to suppose that the company bound themselves to com- pel the action of this agent having a discretion which they could not control? Again; it is clear that this agent was to be indifferent between the parties; not the agent of either party, but of both; it is therefore a reference to a mutual umpire, for whose action neither of the con- tracting parties was bound to the other. The intervention of this ngent was to "prevent disputes," &c., was it likely to prevent dis- putes if the inspector was the agent, and under the control of one party? The reference might as well have been directly to the com- pany. But the contract shows that neither of the parties designed to trust the other in this important matter ; they looked out for some third person an indifferent judge, to whom they both referred their rights. Eandel so far yielded to the company as to give them the se- lection of the agent; there the yielding ceases; when selected he is the inspector and agent of both parties, and answerable equally to both. The other side will contend that this is the covenant of the com- pany, and not equally the covenant of John Randel; and indeed we must come to that if we are to hold the company answerable for his acts. Now is this true or is it not? First, How does the engineer get his authority to decide, and what makes his decision binding on both parties? The contract; the stipulation of both. Without this stipulation the engineer, as the mere agent of the company, might measure and estimate, but his report would have no obligatory force upon Randel. His power, in this respect, arises from the mutual covenant of both parties. Would it not be strange then to suppose that either party was bound to the other for the faithful performance of his duty, when that duty arises from the joint covenant of both and derives all its force from the stipulation of both? Again: For whose benefit was this inspection to be made? For the benefit of both, but chiefly for the company. They were chiefly interested in it. It was of the utmost consequence to them that the work should be carefully inspected. And yet it is contended that they have espe- cially covenanted and bound themselves to the other party for the performance of an act which was chiefly for their own benefit. I conclude then that the canal company are not bound by this contract further than to appoint an engineer and select him as the inspector of works; in the performance of that duty he was the agent of both parties. Third. Having considered the two clauses of inspecting the work and estimating the amount together, I come now to those breaches assigned on what has been called the prevention covenant. They are the third, fourth, and fifth breaches of the second count; and the RANDEL, JUN. vs. CHES. & DEL. CAN*AL COMPANY. 243 first, second, third, fourth, eighth and ninth breaches of the third count; and are assigned on this clause of the contract. "And it is further agreed as aforesaid, that in case the party of the first part shall from the default of the party of the second part in any particular, be prevented from pursuing the due and best mode of executing this contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof, shall be certified by the engineer of the party of the second part, for the time being, and on his certificate, which shall be final and conclusive between the parties, the party of the second part shall make to the party of the first part, such reasonable compensation and allowance, as by the said certificate may be ascertained and fixed." This clause was considered on the former argument, but the deci- sion of the court went on a different ground, the defect of the count in not averring actual damage ; we therefore do not design to contro- vert any decision of the court by making it again the subject of argu- ment. Most of the remarks made under the last head, are equally applicable to this; the question here being whether the company were bound to see that, the engineer certified damages arising from prevention, whenever they were sustained. We contend as before, that this is the covenant of both parties; a joint stipulation, and mu- tual reference to an agent deriving his power from both, responsible to both, and for whose acts or neglect, neither of the contracting par- ties is answerable to the other. It may be urged as it was urged, that this cannot be a reference because there is a general reference at the end of the contract, and this would make two references of the same subject matter. But this argument goes too far, for it would apply to other provisions of the contract, which are too plain to admit of a doubt. For instance, in the matter of revising prices the engineer is appointed umpire eo nomine, and the clause at the end referring all matters is no more inconsistent with a reference in this clause than in the revision of prices. The truth is, that these clauses make special matters of reference, and the last clause is general on all subjects of difference, and does not exclude the prior particular references. This occurs frequently : the slopes of the canal ; the contingent reservation of ten per cent.; the revision of prices; the abandonment clause; the clause in relation to deviations; in relation to all these matters and others, a reference is made to the engineer as an umpire, referee or arbitrator, and the concluding general reference is no more incon- sistent with the matter in hand than with all these clauses. It was urged on the former agreement that this construction would cut off all obligations on the part of the company, other than to pay for work done; and the abandonment clause was pointed out as recogniz- ing other obligations than those to pay for work: so there are; there is one in this very clause to pay the damages certified. There is also an obligation to pay the amount certified in case of deviation. These are sufficient to satisfy the allusion in the abandonment clause to other obligations than to pay for work done, and they destroy the force of the argument drawn from it. "We therefore conclude that this is not a covenant on the part of the company; that the engineer shall certify damages, but a mutual covenant and reference to an umpire for whose neglect in this particular neither party is answer- 244 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. able to the other. It was not a part of the duty of the engineer, as such, to certify these damages; his duty and his authority in this re- spect, grow out of the mutual agreement and contract of the parties, Fourth. The next question is, that important one which arises on the clause which has been called the time covenant, and on which" several breaches are assigned; the sixth of the second count, and the tenth, eleventh, twelfth, thirteenth and fourteenth breaches of the third count. "And it is further understood and agreed as aforesaid, that the time within which it shall be incumbent on the said party of the first part, fully to perform and complete the said contract, shall. not be taken to be less than four years from and after the first day of May next ensuing." It may be contended, on the other side, that this question has al- ready been decided on the former demurrers; but it is not so. We don't mean to question that decision. It amounted only to this, that the clause in question contained a covenant capable of violation, and that a breach thereof was sufficiently assigned in the seventh count. It decided nothing as to what constituted a taking the time; the breach set out no acts of taking time. The question now is what acts constitute a taking of the time within the meaning of the cove- nant, or rather, whether the acts set out in these breaches amount to a violation of that covenant. The fourteenth breach is similar to the one already decided in the seventh count, and on that the plaintiff will be entitled to judgment; but this will not entitle him to judgment on the defective breaches. 3 Saund. Rep. 380. Do the acts set forth in the remaining breaches constitute a viola- tion of this covenant? They may be arranged in two classes: First, That the company unlawfully declared the contract to be abandoned, and relet it to other persons: Second, That they prevented Handel from pursuing the due and best mode of executing his contract, &c. Do these acts constitute a breach of this covenant? It would seem to me that argument must come from the other side on this subject the statement of the question shows that no such legal conclusion fol- lows from these acts, as that the company took the time within which. Randel should be required to complete his contract to be less than four years. Does the unlawful determination of the company, that Randel had abandoned his contract, amount to a taking the time? &c. It is a non sequitur. The declaration of abandonment, suppose it unlawful, and the demurrer admits it, is not that Randel should not have four years, but that he had abandoned his contract. Then, as to the next act : that Handel was prevented from entering upon lands for the purpose of executing his contract; what kind of connection is there between the clause said to be violated and the act relied on as the violation of it? How does the preventing him from going on the land to do the work, necessarily amount to taking the time within which he shall do it to be less than four years? And if the acts do not separately amount, in law, to a violation of the contract they cannot together. The question is not here whether the party so pre- vented has not a remedy for such prevention (and if he had none, it EANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 245 would not control a construction of the contract) but it is whether this wrong is a violation of the particular covenant; whether they have such a connection and relation as that one can constitute a vio- lation of the other. Take the strong case stated on the record of an actual hindrance or prevention; and unlawful stoppage of the work by the company, is this taking the time within which it shall be in- cumbent on Eandel to complete the work to be less than four years? It is not a taking time to be less of diminishing time ; but of put- ting and end to a contract and dismissing a contractor. A wrong it might be ; and a remedy he would have ; but not on this clause of which it is no violation. It is a plain and familiar principle of law, that in any contract for executing work, the party employing enters into an implied contract with the employed to permit him to do the work and if he prevents him or even obstructs him, he has his action for damages Powell on Cont. 251, 2. And such is John Eandel's remedy on general principles applicable to all contracts not upon any covenant expressly contained in this contract: unless it be under the prevention covenant, where a special mode of redress and of ascer- taining damages is agreed upon. And this sufficiently embraces the case; but to say that he is entitled to damages for such a wrong un- der the clause in relation to time, is to avoid his express stipulation, that for such a wrong he will seek damages only on the certificate of the engineer. Such a construction would do violence to the contract. I come now to the question of waiver which grows out of the repli- cation. The defendant has pleaded to all the breaches in the second count, and all in the third, except the fifth, six and seventh, the declaration of abandonment; to which the plaintiff has replied certain acts or facts which he relies upon as being a waiver of the right to de- clare this contract to be abandoned. The matter relied upon as a waiver is, that after the making the agreement, Eandel went to work and duly progressed with his work until the first of October, 1825; that from the 30th of July to the first of October, 1825, he prosecuted the work under the inspection, with the permission, and by and under the direction of the company; that the company paid him for work done, in that interval, thirty thousand dollars, thereby acknowledging the contract to be in full force and effect : that the work thus done by him, was less profitable than that remaining to be done, &c. &c. The first allegation is that Eandel was duly progressing and did not neglect the work. Now I take it in the first place, that upon this question, it is of no importance how that fact is as the right to declare the contract abandoned, depended not on the fact of neglect, but on the engineer's certificate of neglect. The certificate is the only evidence of the fact, and Eandel is estopped and concluded from denying it. You can't go beyond that certificate and enquire into its propriety; it is to be take as conclusive of the fact of neglect, at least for all the purposes of this argument. That the certificate was given is admitted by the replication. I now ask whether the law would allow the company any time for consideration before they abandoned this contract; or must they act instantly on the certificate or give up the power. Can it be pretended that it was reasonable much less legal, that this company should act on this momentous 246 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. question without deliberation, without reflection ? Yet the other side are driven to this position in contending for the waiver. The lan- guage of the contract shows that on the receipt of the certificate the company were to have the discretion to abandon or not may de- clare the contract abandoned; and this discretion necessarily implies the allowance of such time for consideration as might be proper for its prudent use. They were not called on to act instantly, but reason- able time proportioned to the discretion and the magnitude of the question, was to be allowed. Then is the time here taken too long? Two months. Upon what principle can the court decide that it was too long? Looking at the nature of the work, the magnitude of the question, and the importance of its results, we submit that two months was not an unreasonable time for deliberation. And if the company were authorized to take this time for consideration, then all the acts complained of are justifiable and proper, the necessary consequences of this state of deliberation. Until actual abandonment declared the contract continued in force ; Randel was bound to go on with the work and the company to pay so that all orders given and payments made, are perfectly consistent with a subsisting power to declare the con- tract abandoned on the old certificate, if the time allowed for con- sidering that certificate was not unreasonably extended. The want of notice to Randel, and the unprofitableness of the work, do not vary the case. The one did not change the powers or the discretion of the company, and the other was a necessary consequence of the contract. It returns to the question of reasonable time. Will they say the con- duct of the company was fraudulent? No fraud is alledged on the record, and the court will not, as the law does not, presume fraud. It is unnnecessary for me to anticipate authorities but I have exam- ined the books and find little on the subject of waiver except cases of landlord and tenant which are peculiar in themselves and stand on their own ground. They can have no analogy to this case. The contract of landlord and tenant is governed by principles applicable only to that relation. For instance, though a lease be expresslv for five years and no longer, the tenant may hold longer, unless the land- lord gives him three months notice to quit. Take the case of a co- venant by a tenant not to assign the term ; the assignment itself cre- ates a forfeiture ; but if the landlord with notice of the forfeiture ac- cept rent it is a waiver; it re-establishes the relation of landlord and tenant. The assignment creates the forfeiture, the subsequent con- duct of the landlord dispenses with it. Here the certificate of Wright neither put an end to this contract, nor created any forfei- ture of it ; the parties remained in statu quo ; until an actual declara- tion of abandonment the contract was not forfeited. There is there- fore no parallel or similarity between the cases. If after this certi- ficate was followed up by the declaration the company had employed Randel, given him orders, and paid him as usual, it might, with some force, be relied on as a waiver of the forfeiture, but before such abandonment, all these acts are the necessarv and proper results of a continuing contract, and can afford no evidence of a waiver. 3 Co. Rep. 64, 5. Pennant's case. 10 East, 13. It remains only for me to notice the special demurrers joined on HANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 247 the pleadings to the first and second breaches of the second count; and I shall do so briefly, merely calling the attention of the court to them. The breaches are assigned on that clause of the contract which provides for the inspecting and estimating the work. The plea al- ] edges that the company appointed Benjamin Wright engineer, and selected him as the inspector of works, and that he continued to be tmch engineer and inspector. The replication traverses the facts and especially traverses the time of the appointment of Wright as engi- neer and inspector, and for this cause we have demurred. The pre- cise time of the appointment is immaterial, it is alledged under a videlicet; neither material in itself, nor made so by the manner of pleading it. The proof of the appointment at any time before would support the allegation; yet we could not take issue on a replication putting the precise time in issue, and we had to demur. The party is not entitled to traverse immaterial matter. If the traverse includes time when not material it is ill. 1 C kitty's Plead. 42G : 3 Saund. Rep. 318, 19 : Note 6. Gould's Plead. 405. Mr. Clayton, for plaintiff. The contract between these parties may be divided into two classes of covenants; first, covenants to pay for work done; and second, other covenants than those to pay for work done. This is not an arbitrary division, but such as the contract itself makes. In the abandonment clause the language is, that such determination " shall altogether exonerate the said party of the second part, from every obligation imposed on them by the said contract, except to pay, as aforesaid, for work already done." There are then other obligations in this contract besides those to pay for work done: and obligation arisirg from a sealed instrument means covenant. 1 Co. Litt. 172, a; 1 Binn. 254; State use of Jenkins vs. Hamilton's adm'r. C. C. P. Kent county: 2 Mod. 87. The clause declared on in the second count, sets out the agreement of the company to pay Kandel certain specified sums for work done. This is a covenant to pay. The residue of the paragraph provides for retaining ten per cent, until the work is done, which is then to be paid over. This also is a covenant of the same class. So of the third and fourth clauses of the contract. It con- tains six covenants to pay for work. What are the covenants other than for the payment of work. There are to in the clause declared on in the first and second breaches of the second count, being the covenants for inspecting the works during their progress and estimat- ing the amount done. The counsel considered these together, and I will pursue the same course. The prevention covenant, covenants for semi-monthly and final certificates, and the covenant to allow Eandel four years to do the work in, are other examples of these obligations other than to pay for work done. Our learned opponents argue all these covenants into matters of reference, and otherwise get around them, but I ask, on their princi- ples, where are these other obligations besides those to pay for work done? I point them to the covenant that on the completion of the work, the company's engineer shall grant to Randel a final certifi- cate of the amount of work done, and I ask if it will be gravely con- tended that this also is a reference ? that Randel after doing work to 248 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. the amount of millions has referred it to an agent of the company to decide whether he shall have one cent. Without the certificate he can get nothing, and the company are not bound that their agent shall give a certificate for any thing. This is the result of the argu- ment; and if this be not the covenant of the company that a cer- tificate shall be given it rests in the power of the company to pay or not to pay even after the work is finished. Mr. Frame, pressed by the necessity of finding other covenants than those to pay for work done, attempted to point out two, both of which are manifestly to pay for work. But the broad terms of this clause are not to be sa- tisfied by hunting up a possible obligation in some corner of the con- tract ; the expression is broad and general, all obligations. In taking up the contract and looking for these other obligations, the first one that occurs is the provision, that in case Randel should, from the default of the company, be prevented from pursuing the due and best mode of executing his contract, &c., the pecuniary damage shall be certified by the engineer of the company. How is this clause introduced? It is agreed as aforesaid. What is the agreement immediately preceding? A covenant by the company to pay the ten per cent., and also a covenant by the company that the engineer should give a final certificate. If there be any doubt on the words of an agreement they are always referred to the proper party. Powell on Cont. 241, 2, 3, 4. Even where the language is that of the covenantee, they will be thrown upon the other party, if he as- sents and the intent so requires; much more where both parties join in the words. The law looks, .not to who speaks the words, but to the intent of the parties, and if the party who ought to be bound, assents to the words, it shall be construed his covenant. In con- tracts it is not material which party speaks the words if the other agrees. Words spoken by one may enure as if spoken by the other. Chitty Cont. 22; 1 Plowd. 141; Browning vs. Beston; Johns. Cases in error, 327. How stands this covenant ? Do you, from the language, gather that the company agreed that their engineer should certify? If so it is a covenant. The terms of a contract are to be used in their ordinary and popular sense. The rules is to do justice between the parties by carrying into effect their meaning and intent. 4 East 136; 1 Cliitty Cont. 19. Is justice to be effected by the construction of the other side? Was it, or not, the understanding that Randel should do the work and the company pay him for it: if so, it is idle to contend that Randel re- ferred it to Wright, or any one else, to say whether he should be paid or not. Do you doubt that it was the understanding that he should be permitted to go on with the work without molestation or hindrance for four years, he exercising due diligence in the mean time ; if such was the understanding, they have covenanted to this effect, and broken their covenant by driving him off within the four years. The books show numerous cases in which the principle of con- struction to carry into effect the intent and meaning of the parties has been adopted in its fullest extent. As where the father signs the ar- ticles of apprenticeship of his son though the covenants are all those of the son and master, the obligations proceed from the son and the RANDEL, JUN. vs, CHES. & DEL: CANAL COMPANY. 249 words are his yet looking at the intent of the parties they have been held also to be the covenants of the father. Dougl. 518; 5 Cowen 170; 8 Mod. 190. An agreement that B. should pay A. a sum of money for his land is a covenant by A. to convey the land. Agreed is the word of both, and the court looks to the intent and does justice. A cove- nant to supply lime at the season of burning construed to be a cove- nant to burn and supply burnt lime, for such the intent. 1 Saund. 320; 1 Leving. 274; 1 Sidf. 423; 3 B. & Aid. 487; 1 Wh. Selw. 387; 6 Bing. 644; 9 B. & Ores. 505; 2 Mod. 266; Otway & Holdip. In Otway vs. Holdips the court raised a covenant by construction because otherwise the party bound could avoid all liability. Here, if this be not a covenant by the company they cpuld deprive Randel of all remedy. Mr. Frame contended that this engineer was an in- different person. Look at the contract and see what manner of in- different person this is. He is called the engineer of the company: the engineer employed by the company; their engineer. They could not speak of their servant in terms more strongly showing his obli- gation and subservience to them. He is their man ; under their pow- er, and responsible to them. And yet he is called an indifferent person. The duty was not even assigned to their engineer in chief who must be a man of science, and might be a man of character and responsibility, but it is the engineer for the time being, or resident engineer, frequently a common surveyor or subordinate engineer, who is put in and out at the pleasure of the company. Are they not, according to reasonable principles of construction, answerable; under their covenant, for this hireling servant? The narr alledges that Randel did work to the amount of $250,000, which the engi- neer well knew but would not certify for; yet it is contended that the company are not liable for this neglect of their servant though otherwise Randel is wholly without relief, and though it is agreed in the contract that this servant shall inspect the works and estimate and certify the amount. It was intimated last term that there might be a remedy for Randel in equity, though not at law. The rules of construction of covenants are the same at law as in equity. If then it be admitted that we have a remedy on this clause in equity we have it here. 1 Saund. Rep. 233, n. 1; 14 Vin. Ab. Tit. Intent. Fearne on Rem. 220, 4/ft Ed.; 8 Eng. Com. Law Rep. 368 ; Frazer, &c. vs. Houston, &c.; 1 Sidf. 266; 2 Modern 292; Ctiitty Cont. 18, 19; 1 Fonb. Eg. 65; 3 Ves. sen. 692; 2 Burr 1108; 3 Blac. Com. 438; 1 Leon 324; 2 do. 122. I crave attention to the distinction in this contract between the language of covenant and of arbitration. The contract is very ar- fully drawn. It cannot be denied that the draftsman knew perfectly well how to appoint an arbitrator as is done expressly in the conclud- ing clause referring disputes to the engineer in chief, as a judge and umpire between the parties. And also in another clause where they wish to refer a matter to the engineer for the time being it is done so expressly, to him as umpire. They knew then how to make 32 250 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. an arbitrator; they have done it rightly where they intended to do it ; yet where they have not done it the court is called upon to infer a reference which shall deprive one party of all the remedy he has un- der the contract and absolve the other from all liability, even the liability to pay for the work actually done. The language of the reference is that the engineer may do thus and so; he may certify the neglect of Handel ; it is left to his discretion ; the language of the covenants is that he shall be the inspector and shall estimate the work, and shall certify damages for deviations and prevention, &c. Again, the argument that this is a reference and not a covenant makes a double reference of the same subject matter for if it was in- tended to refer these matters to the engineer it is covered by the last cause of the contract. What wrong can be done to the company by construing this to be a covenant? If a covenant the company have still an immense advantage over Randel. They are bound to appoint an engineer and inspector, and to make him inspect and es- timate and certify ; but here their obligation ceases. Eandel is bound by the certificate, however unjust; and it would be monstrous in- justice to say, by construing this a reference, that the company were not even bound to give him that. On general principles the master is liable civiliter for the acts and conduct of his servant within the scope of his authority. The construction we contend for would hold the company responsible only as the general law considers them re- sponsible. Bac. Ab. Master & Servant. R. Establishing then that there is a covenant on the part of the com- pany that their engineer should inspect the works during their pro- gress and estimate and certify the amount done; and that there is also a covenant by the company that, in case Randel should be pre- vented by any default of theirs from pursuing the due and best mode of executing his contract, their engineer should certify the dama- ges arising from such prevention, I proceed to the breaches : The third breach, second count, alledges that Randel was preven- ted, &c. on divers days and times ; that ihe pecuniary damage amoun- ted to $256,000 (all of which is confessed by the plea and demurrer) yet that the said damage has not been certified, (which is also con- fessed.) The fourth breach of the second count is similar, with the additional averment that the engineer knew of the damages. (This also is confessed by the pleadings.) The other breaches are similar varying only as to time. How stand we then on the demurrers? The prevention, and dam- age and neglect to certify, all admitted; a wrong confessed; a duty omitted ; a covenant broken. So also is the covenant to inspect the works and estimate the amount of excavation and embankment clearly broken, and all the facts necessary to establish the breach confessed by the pleadings. I recur to the principle that the law refers the obligation to him who is bound to do the act. It was the duty of the company to have the work inspected and measured. Mr. Frame argued that this clause was chiefly or entirely for the benefit of the company. Wonderful ! Without the inspection Randel could not receive one cent for his work; the provision was wholly for the purpose of ar- RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 251 riving at data for his payment; yet he has no interest in it! The contract might also be declared abandoned for his neglect; was he not interested in the measurement ? When able counsel resort to such ar- guments it manifests the difficulty of their case. The learned gen- tleman argued also from the words " to prevent misunderstandings and disputes " that this was a reference. Look at the language of the last clause which we agree is a reference; it is to prevent litiga- tion in case of misunderstandings and disputes that an arbitrator is appointed; and this is the business of an arbitrator to settle, not to prevent, disputes. I seize on these words to show that it cannot be a reference. How were disputes to be prevented? Not by appoint- ing an arbitrator, but by obliging the company to make their agent do his duty in specting and measuring and binding Randel to abide by this measurement. Here no dispute could arise. Randel might be wronged by the certificate, but his mouth was closed. A plea that the company's agent had estimated and certified this work would con- clude the whole matter forever. I now come to the covenant not to take the time within which Randel should be compelled to do this work to be less than four years. A contract must be so constructed as to give it some mean- ing. CJiitty C. 19, 20. The construction is to be on the whole in- strument. The company are authorized to declare the contract aban- doned for negligence of the contractor: negligence, what is it? The want of due diligence ; and this diligence must be taken in reference to time. Without any stipulation on the subject Randel would have been allowed a reasonable time to finish the work, but here the con- tract ascertains the time and stipulates for the allowance of four years. The company covenant not to take the time to be less than four years, that is, to allow four years. But say they, that is inconsistent with the power of declaring the contract abandoned within the four years. Construe the whole instrument together and they both stand. The company were bound to allow four years, unless, judging in reference to that time, the engineer should certify to them that the contractor unreasonably neglected his contract upon which certificate they might declare an abandonment within four years. We show a breach of this time covenant whenever we show that Randel was progressing with ;5uch diligence as to complete the canal in four years and that the company unlawfully drove him off. There is also compatability between the clause allowing four years to complete the work and the prevention clause. A prevention may not amount to a total exclusion, and remark it is only prevention from pursuing the due and best mode : the one regards interruptions in the progress of the work the other a total suspension of the work itself. There might be many violations of the prevention clause with- out amounting to a breach of the time covenant. It may be insisted, as it was last term, that this clause was design- ed merely as a defence to Randel in case the company should sue him for not completing the work earlier. Sue him, where ? They con- iemplated no suits; they withdrew these matters from courts and juries, shunned the tribunals of the country as they still seek to ehun them, and took the power of decision into their own hands. 252 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. If Randel did not progress diligently he was not to be sued, but Wright or some other tool of the company was to step in and certify the neglect and he was to be driven off at their will. It was not then meant as a defence to any suit but a measure of time in reference to his diligence and a covenant to allow time. Are the breaches of this covenant well assigned r* They are the sixth of the second count, and the tenth, eleventh, twelfth, thirteenth and four- teenth breaches of the third count. The fourteenth is admitted by Mr. Frame to be well assigned ; it is like the seventh count on which judg- ment has been given for plff. The other breaches recite the facts from which it is concluded that the covenant is broken. The first breach contains two averments; that the company unlawfully abandoned the contract and prevented Randel from entering upon lands to execute his contract, and so took the time, &c. Mr. Frame seemed to treat the declaration of abandonment as another abstraction !not affecting Randel nor having any relation to the taking the time; but the con- sequences of that declaration, which are stated, did affect Randel; it stopt his pay; drove him off; prevented him from going on with the work. The breach does not stop at the mere declaration; it relies on the driving him off and states the declaration of abandonment as the means. And this is a breach of the covenant. The tenth breach adds the reletting the contract to Clement, Blackstock, Vanslyke and Dexter; the eleventh to Clement, Blackstock and Vanslyke; the twelfth states a reletting generally, and the thirteenth traverses the abandonment generally and states the reletting. I submit that a violation of this covenant is well assigned in all these breaches. I come now to consider the plea of abandonment and the replica- tion of waiver. It is the third plea and applies to seventeen breaches. The plea is that Benjamin Wright, the engineer of the company, being of opinion th-it Randel unreasonably neglected to prosecute the work, did, on the 30th July, 1825, certify that opinion to the com- pany, and that afterwards, to wit: on the 30th September, 1825, the company did, on said certificate, declare the contract abandoned, of which Randel had notice on the first of October, by means whereof the said company were exonerated from every obligation imposed by said contract, except, &c. The plea is a plea of confession and avoidance. Whatever is ma- terially alledged in the breach, and not denied by the plea, is ad- mitted. This plea admits that Randel was duly progressing, and did not neglect it in the interval between the 30th July and 1st Oc- tober; no notice to Randel of the certificate is averred in the plea until sixty-two days after it was given, one-twenty-fourth of the whole time he was allowed to do the work: the question then is was the abandonment legal? The certificate they say is not to be ques- tioned, but the abandonment on it must be legal or the whole is void. This certificate, as was well said by Mr. Frame, made the contract not void, but voidable only. The contract is, that on the certificate being given, the company may declare an abandonment, not that they shall; it is then after certificate, a voidable and not a void con- tract. Such a contract may be affirmed and the power to avoid it waived. Mr. Frame said there were some cases of leases, copy- RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 253 holds, &c., where a forfeited contract might be waived or re-estab- lished, but he said it was very different with a contract not actually forfeited.; Precisely the reverse it true; and I trust we shall show a few other cases than those depending on the relation of landlord and tenant, or on any peculiar principles. A lease may be set up by waiver while it is voidable, but not after it is avoided. If there be a clause of forfeiture for non-payment of rent, if the rent be not paid the contract becomes voidable, but not void until entry. Before entry the contract may be set up and the forfeiture waived by slight acts, because the law leans against forfeit- ures. If feoffor brings assize after condition broken, it is a waiver of the forfeiture. Acceptance, of rent after notice to quit, is a waiver of the notice. Acceptance of rent, after the lease is avoided^ will not set it up, but it will where the lease is voidable only. 1 Saund. 22; a note 3; 1 do. 1042; 2 Stran. 297; 1 Saund. 287, ~b. n. 16; Co. Litt. 201, &; 202, a; Harg. n. 3; Co. Litt. sec. 341, p. 211, b; 6 T. Rep. 219; Co. Litt. 215, a and note 1; 2 T. Rep. 430; 1 H. Bl. 311; 4 B. & Cres. 606. The replication shows that Randel worked to the amount of thirty thousand dollars, after the certificate, one -twenty-fourth of the whole time, that they paid him and treated with him all that time, ds if no certificate had been given; they thereby acknowledged the contract to be in full force. The demurrer admits these facts and they amount to a waiver. The payment under the contract, and the acknowledg- ment of its being in full force, is not a conclusion or inference, but a traversable fact. Acceptance of rent, with notice, after condition broken, and be- fore entry, is a waiver of the forfeiture. In case of a continuing breach acceptance of rent is no waiver. If it appeared on the record that Eandel continued to neglect after the certificate there might be no waiver, but the contrary is stated and admitted. Do the deci- sions, in the cases cited, go upon any reason peculiar to leases? The analogy is perfect throughout, and there can be no reason why a waiver in the one case, should not be in the other. The parties agree in those cases that in a certain event the lessor shall have it in his power to declare the lease forfeited, or to forfeit it by entry, &c., is it not so in this contract? If the forfeiture can be waived in the one case, why not in the other? 16 East. 53; 3 Salic. 3; Cowp. 804; 1 Leon. 262; Cro. Jac. 398; 7 Petersd. Ill, tit. covt. waiver; 9 B. & Crest. 396. But the law on this subject is not confined to leases: it is in the very nature of a voidable contract that it may be reaffirmed as well as avoided. The debt of an infant, though voidable, may be set up; a debt barred by limitation may be reaffirmed; a forfeiture created by the statute of frauds may be waived by payment or part pay- ment. And if once reaffirmed it is not then to be avoided at the will of the party who waives the forfeiture. Any irregularity creating a forfeiture or loss of a man's rights, may be waived, as appearance to an irregular writ, payment or admission of a debt, &c. 8 Com. Law Rep. 270. So in cases of insurance the insured must abandon and give notice to the underwriter or he waives his right to abandon. The insured must elect whether he will abandon as soon as he re- 254 HANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. ceives notice of the loss and notify the insurer within a reasonable time. " This is a rule not peculiar to commercial law, but is in analog}' to the principles of the common law." Marshall on In- surance, 509. We say here that on the certificate being given, the company were to elect whether they would forfeit the contract by a declaration and notice to Kandel within a reasonable time. Was two months a reasonable time? Was it reasonable that they should keep him at work at reduced prices long enough to do one-twenty- i'ourth of the whole work. What would be reasonable time? Could they put this certificate up until Randel had nearly completed the work, and then spring upon him with a declaration of abandonment? Again : What is the principle in relation to the non-presentment of a bill or note? Its consequences may be waived' by part payment, or promise with notice of the default. So neglect to give notice to the indorser releases him, but it may be waived. So in case of mort- gage forfeited the mortgagee waives the forfeiture, by accepting pay- ment of part. So in case of a bail bond forfeited, acceptance of ap- pearance is a release of the bail. To all instruments known to the law, on which a forfeiture may arise a waiver may occur. Chitty on bills, 319, 302, 309; Strange; 6 East; Powell on Mortgages, 1077, 8, 18, 19, 421, 422; 3 Taunt. 78. This is not a case of merely lying by and doing no act to waive this right of abandoning the contract, the whole conduct of the com- pany towards Randel after the certificate reaffirmed the contract. The contract is that the company shall have the power to declare on abandonment on the certificate ; that is, on occasion of the certificate, when it is given or within a reasonable time after. Can an abandon- ment sixty-two days after the certificate, be said to be on the cer- tificate? If this plea be bad to any one of the seventeen breaches it is bad to all. (Admitted by defendants counsel.) As to the special demurrers: I admit that where time is immaterial, it need not be traversed, and cannot be. The question is whether the time is material. They were bound to show when the inspector was appointed, for they were bound tp have one all the time. The time of the appointment then is material. But I pass by this. The demurrer runs back on the first faulty pleading, and there plea is bad. The breach is that the company did not appoint an inspector, and that the work was not inspected and measured, the plea merely sets out the appointment of the inspector. It is therefore bad and settles the question as to the demurrers to the fifth plea. The case cited from 10 East, was a conditional promise that the tenant might remain unless the landlord sold. He did sell and it was held no waiver of the previous notice to quit. It does not, in the least, impugn the authority of our cases. Pennant's case is law, and the other side may have the full advantage of it.- I intended to cite it, and would still, but for the lateness of the hour. It is preg- nant with instruction on the subject of waiver. Charles J. Ingersoll, for plaintiff. In former days, before the light of liberty had shed its influence to the extent of establishing independent judiciaries and juries to try RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 255 the rights of parties, the world was ruled and over-ruled by the des- potic sway of the nobility, a privileged class of which the only rep- resentative that has come down to these enlightened times, is the existence of certain irresponsible bodies called corporations. Ten years ago, a period longer than the usual computation of human life, an artificial being of this character, called the Chesapeake and Dela- ware Canal Company, entered into an arrangement with John Ran- del, jun., in relation to digging a canal; and, in the foolish confidence of an honest man, our unfortunate client signed a contract with this company that gave them almost unlimited powers over him. He agreed to put his work and himself under the supervision and in- spection of an agent of the company; to be paid according to his certificates for work done, and to be remunerated in damages by the same rule for preventions, and deviations, extra labour and all the impediments which might arise in the course of the work or which might be thrown in his way by the company themselves; and finally, he agreed that whenever the aforesaid agent of the company should certify that he unreasonably neglected to prosecute his work, the company might, on that certificate, declare his contract abandon- ed, and drive him off without appeal and without redress. It is true that something like a fixed rate of payment was agreed upon; some certainty of remuneration was delusively held out to his view; a schedule of prices was inserted in the contract; but it was accom- panied by a cruel clause of revision which, in less than three months, they cruelly and unjustly enforced against him. Crippled though. he was, he went on, for he had no choice. He called around him his friends; to a handsome private fortune he added the resources with which their friendship and confidence supplied him, and with a per- severing industry absolutely astonishing he was about to overcome every difficulty, when this corporation, duped by their faithless and malicious engineer, sprung upon him an abandonment founded on a secret and false certificate. It was then that the true character of this artificial being developed itself. Our client petitioned for a just and fair investigation, but he was disregarded. He talked about his rights and was told that he had none : he spoke of the contract, but they denied that it contained any obligations for them. Exercising omnipotent power over others, this King Corporation claims the pro- tection of infancy for itself; it can't contract. He points to a cove- nant to allow him four years to complete the work, but this, wrapt in the obscurity of intentional mystification, means nothing; it is a mere abstraction. He seeks redress at law; but he is told he sha'nt aro to a jury; they demur. The court decides against them, and they demur again. At every step we are met with the stubborn determi- nation not to try the merits of this cause; with the avowed and joasted purpose never to face our wronged client before a jury of his T>eers. This case presents then the interesting question, novel to be -ure in this country, whether the forms of law can bring this great corporation to submit its controversy with an humble citizen to the investigation of the appointed tribunals of the country; whether justice can be administered to John Eandel as against this infant Hercules through the medium of a jury of twelve honest men. We ask but a trial; we rely on the law of the land and the facts of our 256 HANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. case; we rely on a learned court and an intelligent jury for justice; and if we get it not here we know from long experience that we can never get it from any sense of justice residing in this soulless cor- poration. The case as it is now before the court on the demurrers, presents the inquiry whether the clauses in relation to inspection, prevention and the allowance of time are covenants of the company ; and whether our replication of waiver to their plea df abandonment is good in law. The contract throughout shows a dependence or subordina- tion of the contractor on the engineer, and of the engineer on the company. In no less than five instances the engineer is expressly made the agent of the company; and throughout he is spoken of as their engineer, their servant. The company then are the principals. They were to provide the contractor with land to dig, and protection from interruption whilst digging. But this land belonged to others, and was to be bought by the company. Handel was proceeding with his force; could he wait and keep his men idle; purchase the land himself; or resort to a suit with the company for damages? The con- tract proceeds on a more sensible plan. The company agreed to protect Eandel in the course of his work, or if he was prevented by their default from pursuing the due and best mode of prosecuting the work, their engineer should assess the damage, which Randel agreed to take. They call this a reference to arbitration. Did you ever hear of an arbitrator who was not at liberty to decide for either party? It is essential to the character of an arbitrator. Here the engineer is bound at all events to certify damage for Handel the amount of which he is constituted the assessor. Even this was not to be conclusive, but dependent on a final measurement or computa- tion, it was a mere temporary rule of damage to facilitate the pay- ments. As to the waiver. The law on this subject is as well settled as the definition of a fee-simple. The principle is that every subse- quent ratification amounts to a command; omnis ratihabitio, &c. It is a principle of the common law; the civil law; in the law of in- fants; insurances, agents, leases; of all the law of presentment and notice in relation to bills and notes; a familiar principle pervading the whole law. Comyn on landlord and tenant 330 ; 4 Barn & Cress. 606; Roscoe on Evid.; 341; 6 Cranch 268, 273; 5 Serg. & Kawle 113, 115. The principle then being universal that a party may waive his right to avoid a voidable contract let us apply it to this case. The plea sets forth that Wright certified on the 30th July, and the com- pany declared the abandonment on the 30th September. The repli- cation states a course of conduct in the company during this interval wholly inconsistent with any intention of abandonment; amounting to a giving up or yielding the right which on the 30th July they had to avoid this contract. Is this a waiver? What is a waiver? There is no magic in the word. Chief Justice Tilghman says it is to be collected from the conduct of the party; Mr. Webster, who has fur- nished us with a very good law book, gives as the definition of the verb waive " to omit to pursue." It is putting aside what a party is otherwise entitled to; the omission to take advantage of a right, and EANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 257 the doing acts which are inconsistent with the having taken advan- tage of it. And courts of justice say that a man may readily waive a forfeiture for the law leans against forfeitures. The plea does not state that Eandel did neglect, only that the engineer certified that he neglected. Is this the contract? I deny it. There must by a faithful bona fide judgment of the company, that Eandel did neglect. I don't say that such judgment must be right, but it must be bona fide. I contend that the contract is not that there may be an arbitrary and false certificate but a bona fide certi- ficate. The word is certify. Webster. " To make known, or es- tablish a fact." Can a certificate establish a fact which does not exist? There must be the honest judgment of the engineer on the subject, or it is no such certificate as the contract contemplated. But, say the gentlemen, he was only to certify an opinion. What is an opinion ? Webster. " The judgment which the mind forms upon any matter or event/' The judgment here was to be formed on the fact of unreasonable neglect, and I submit that this plea should have stated the existence of such neglect as the basis of the engineer's opinion and certificate. Was not this the meaning and intention of the parties? Surely it was. Certify the same; what does the same refer to? opinion or neglect; the latter evidently. Now it does not appear that such a certificate was ever made. The grammatical con- struction certainly refers " same " to the neglect of Eandel, and not to the opinion which Wright might entertain of that neglect. But granted that I am wrong here, I come to the question of abandon- ment and waiver as it appears on the pleadings. On the 30th July the engineer certified the neglect, and on 30th September the com- pany did, on said certificate, determine the contract to be abandoned. Is this the contract? It gives the company the power of declaring that Eandel has abandoned. I stick not to the grammatical con- struction, but I look at the facts. Is it the same thing to say that Eandel has abandoned his contract on the 30th July, and to deter- mine the contract to be abandoned on the 30th September? To be, is future or at least present; it can't be past. Again: The declara- tion was to be on the certificate. On always means proximity; nearness. Webster. Here was an interval of two months; and what was the state of things in the mean time? Eandel digging and working; Wright twice a month certifying the work to the company; the company accepting the certificates and paying the contractor; and yet they plead in effect, at least they must sustain the position, that on the certificate they determined that Eandel had abandoned his contract on the 30th July. Eandel must have been amazed to learn that ne had abandoned the work in July when he knew that all August and September he had been delving in the mud, '.in the midst of autumnal fevers, paying five hundred men their daily wages, exhausting his funds and draining his friends; and submit- ting himself twice a month to the inspection of the "committee of works," who, armed with champaign and Cook's pills, ventured in this unhealthy region to see how fast a man could complete a work that he had abandoned. Surely he must have been in a trance all this time, or the abandonment is false and its operation fraudulent. 33 258 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. But they say they were to have a reasonable time. It is not so said in the contract The contract says the abandonment may be on the certificate; that the company may immediately after relet the contract, &c. But if the law does give a reasonable time it must be in reference to the subject matter. Here was a great work requiring a large force and an immense daily expenditure ; promptitude in exer- cising a right to dissolve such a contract was necessary; any delay would be unreasonable because destructive to Randel. In cases of insurance the law requires instant action; in all cases, promptitude and diligence. Can it be possible that two months can be consid- ered prompt action or due diligence in reference to taking advantage of a forfeiture of such a contract as this. J. A. Bayard, for defendants. There are three leading questions in this case: First. The con- struction of the contract in relation to the certifying of work done, damages sustained, &c. The principle I start with is, that in con- struing contracts the object is to do justice between the parties ac- cording to the intention they mutually entertained at the time the contract was entered into. Chitty on Con. 19; 1 Saund. 61, n. 1. 1 agree that every covenant is an obligation; but not that every obli- gation is a covenant. Covenants can only be by deed; obligations may be without deed. I do not agree, either, to Mr. Clayton's di- vision of this contract into covenants to pay for work done and cove- nants other than to pay for work done. The contract makes no such division. The contract is to be construed from the whole and not a part. There are but two general covenants in it, the one to per- form the work and the other to pay for it when fully completed. The others are all dependent on these, growing out of them, explain- ing, modifying or regulating details. This work was beyond the means of any individual to perform without being paid as it prog- ressed, hence arose the provision for stated semi-monthly payments according to certain certificates. Kandel was the claimant. The company had to guard against excessive advances and keep the pay- ments within the work. Under these circumstances they made a mutual agreement that a scientific man should stand in the relation of an umpire or judge to certify the amount of work done, &c. He was invested with a discretionary power in the business: and made the judge between the parties. The covenant of the company was not to pay semi-monthly on the work being done, but on its being certified. The certificate is a condition precedent; and, without it, no pay was due. If no certificate was given, the contractor was es- topped to say that any work had been done. The certificate was to be equally binding on the parties which created the mutuality of the reference. So of the clause referring it to the engineer to divide the ten per cent, reserved in case of Randel's death; his administra- tors could never have recovered any part of this ten per cent, with- out the certificate of the engineer: unless indeed there was collusion between the engineer and the company, the other party might in such case go into chancery and compel a certificate. So in the pre- vention clause. To prevent misunderstandings and disputes the par- ties agreed to repose in the judgment of the engineer and to refer it to him to assess the damages. The company were equally bound RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. with the contractor; and if the company was bound to pay $10,000 on a certificate though there might be but $5,000 amount of work done, where is the mutuality or justice, to say that the other side was not equally bound to take whatever was certified, and to take nothing but on a certificate ? Wherever the skill and discretion of an- other is reposed on in a contract between two parties it makes a ref- erence, and I defy the counsel to show a case where the decision of such an arbitrator has been overhauled except on the ground of fraud or irregularity; not on any ground affecting his judgment or discre- tion for this is reposed on by the parties. It has been contended that this prevention clause was chiefly for the benefit of Randel. It is not so. What was the implied covenant of the law in case of pre- vention? That they should pay damages without restriction; the law even goes so far as to entitle the party to damages without executing his part of the contract. 1 Saund, 60, n. 2. The design of this clause was evidently to restrain the general implied covenant. It was of vital importance to take the decision of this question of dam- age from the loose judgment of unscientific men and refer it to that of a man of skill and knowledge. And if this was the intention of the parties can the deft, be called on to pay according to any other assessment? The contract secures them the protection of the en- gineer's judgment: the parties mutually agreed to rely upon his opin- ion as to the amount of damages, and without that opinion the plff. cannot recover. If the engineer has not certified any damage it is conclusive evidence that no damage has been sustained. It is con- clusive or the mutuality of the contract is destroyed. It is admitted that the power to abandon the contract on the engi- neer's certificate of neglect is in the nature of a reference. Why more so than in the other clauses? Because the neglect is to be as- certained by the opinion of the engineer? So is the amount of work and of damage to be ascertained by his opinion. The deviation clause is still stronger. Can it be that the parties ever intended to have the damage arising from deviations valued by any other than a scientific man who alone from his skill in the business was competent to assess the actual damage? on his certificate only then can the plff. recover. If he refused to certify on proper grounds the plff. had no remedy; if on improper grounds, his remedy was only in equity, or against the engineer himself. I care not if this engineer be the agent of the company. The agreement was to abide by his certificate. I can establish the posi- tion that if Eandel had agreed to take what the company themselves should certify he could not recover otherwise than on the certificate. 1 Maul & Selw. 290, 2. The provision of semi-monthly payments is a qualification of the general covenant to pay on the completion of the work, and being a concession to the contractor it must be taken with its condition; the opinion of the engineer and his certificate. It would have been impossible for this company to have succeeded on any other principle than that the contractor should be in the power of their engineer. If in the various disputes that must arise in such a work there be no one to decide promptly and finally no company could execute it. No express words are requisite to make a reference; and in con- 260 RANDEL, JDN. vs. CUES. & DEL. CANAL COMPANY. Btruing contracts the court will look to the condition of things in reference to which they are made. 1 Maule & Selw. 105; Chitty on Cont. 21. If the reference had been to an engineer mutually to be selected could there be a. doubt? And does it alter the matter that it is referred to the company's engineer? If you refer a matter to the other party's servant, brother or father, it is still a reference, and binding. Apart from this contract Benjamin Wright was the agent and engineer of this company. Knowing this, John Handel agreed to take this person to act between him and the company on tKis sub- ject. As engineer merely he held no power to do these things. He derives his power from the contract. He drops his character of agent of one party and becomes the appointed agent of both. And a refer- ence would be valid to an arbitrator appointed by. one of the parties. (Examines the cases cited on the other side, and admits them to be right in the construction of the covenants on which they arise, but denies that they can vary his construction of this contract.) I don't deny that there may be implied covenants, nor that the language of a covenant may be referred to the party who, according to the inten- tion of the parties, was to be bound; but the implication must be a necessary and apparent one, and the intention must be manifest. I admit also, that the rules of construction of covenants are the same in courts of law and equity, but I deny that both courts afford the same remedies. It has been argued that the person who drafted this con- tract knew well how to appoint an umpire, and it is thence inferred that in these clauses it was not so designed. Judging from the in- strument itself 1 should say a lawyer did not draft it. The term umpire is used improperly; an umpire is a third person appointed to decide between two other judges or referees who differ in opinion. It is not so used here. The only peculiar force that the word shall has in this contract, has been imparted to it by the emphasis of coun- sel. In the umpirage clause the term is shall. It is of no more force than will, unconnected with the intent of the parties. There is nothing in the term itself to make a covenant. I have no hesitation in admitting several of the positions taken by the other side. A master is liable for the acts of his servant within the scope of his authority : these acts are not within the scope of the engineer's authority as the agent of the company. They grow out of contract and appertain to him as the agent of both parties. The ar- gument drawn from the words "to prevent disputes," namely, that an arbitration is to settle, and not prevent disputes, is fallacious. It is founded on the technical meaning of arbitration, a reference of existing disputes. But is it not competent to refer contemplated disputes; to appoint a referee to prevent disputes? It is done in all policies of insurance. An arbitrator must have the power to bind both parties. And so he has. The company was as much bound by the certificate of "this engineer as Randel was. The demurrer ad- mits all the facts well and sufficiently pleaded, and no more. If our construction of the contract be right, it is fatal to all the breaches of the third count, except the fifth, sixth, seventh and fourteenth. The next question I shall consider is the inquiry what acts amount to taking the time to be less than four years within the meaning of that clause of the contract. The court have already decided this to be EANDEL, JUN. vs. Cur.s. & DEL. CANAL COMPANY. 261 a covenant capable of being broken, but not what acts will constitute a breach. The sixth breach of the second count alledges that the company unlawfully declared the contract abandoned, and prevented Randel from executing the work. I can't understand how this was a taking of the time, unless it appeared that it was done with that view. He may have been driven off for disobedience or neglect of orders: how can the court say without an averment of intention, that it was a taking of the time. The quo animo must direct the act to the intention for it is consistent with other objects than that of taking time. Keletting the contract is not a breach of this covenant; nor is the preventing Randel from pursuing the due and best mode of executing the contract. This last is a restriction of the general cove- nant; what would constitute a breach of it would not be a breach of the other, or they amount to the same thing. The act stated in the breach applies to the prevention clause. I admit that a general covenant is not necessarily restricted by a subsequent special cove- nant, but only where, the reasonable construction requires such a qualification. 3 Bos. & Pul. 574, 5, 6. Here is a special covenant that in -case of prevention the company shall pay on the certificate of the engineer. Suppose a prevention, is it a violation merely of the prevention clause, or does it pass by it and constitute a breach of the time covenant? That would make the time covenant ride over and expunge all the particular covenants. That covenant is indefinite in its terms. It points out not what shall be a taking of the time; and I contend that no act embraced within the special covenants can be applied to it. If it can, those special provisions are nugatory; and by resorting to the general you evade all the restrictions of the spe- cial clauses. The waiver. Are the matters contained in the repli- cation of waiver a sufficient answer to the plea of abandonment? I notice first, some of the minor objections to the plea. The force of the word on. Mr. Webster may be good authority elsewhere, and even that is doubted, but here I might reply to the gentleman as Lord Ellenborough once did to an attorney who cited Walker's dictionary. Mr. Walker, sir; I never heard of him! On, he says, always means proximity, nearness. Why the argument the learned gentleman made yesterday was on a contract made ten years ago. Neither in the one case nor the other has the word any relation to time. The declaration was to be on the certificate as a foundation; and the company did proceed on the certificate after investigation to exercise the power. Do the matters replied avoid the plea? What are they? That Rand el without neglecting, &c., went on to work in the interval between the 30th July and 30th September, under the orders of the company; that they paid large sums of money for work thus done : that this work was less valuable to him than the work to be done; that he had no notice of the certificate, &c. At common law I contend that the principles of waiver are dif- ferent in case of instruments under seal and without seal. If the for- feiture or right of forfeiture arises on a sealed instrument it cannot be waived or dispensed with by parol agreement. The only way you can waive such a right is by release, or by an act legally incon- sistent with the forfeiture or right of forfeiture, and this after notice. The affirmance of a voidable lease by parol, though on consideration, 262 HANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. does not dispense with the forfeiture. Mere forbearance and lying by is not a waiver. Acceptance of rent after notice to quit affirms the tenancy. It is because the party can't stand in the relation of tenant and trespasser at the same time. The waiver of rights under process of courts can have no application, for these depend on the rules and practice of the courts, and proceed on equitable principles. Insurance cases are founded on the law merchant in reference to the convenience of trade; and arise upon instruments not under seal. So of bills and notes. As to the waiver of a forfeited mortgage, which was spoken of, I deny the case altogether, and deny that any waiver can take place by parol of a forfeiture arising on a sealed instrument. 3 Co. Rep. 64; Pennant's case; 1 Saund. 287, n. 16; 3 Taunt. 78; 3 Salk. 3; 6 Term Rep. 219. Parties cannot by parol vary a sealed in- strument. 2 Eng. Com. Law Rep. 237 ; 4 do. 216. The waiver must be by an act that creates a legal dispensation. The right to forfeit accrued from the certificate. The company were not bound to disaffirm ; had a discretion. The mere forbearance was no waiver; whilst they forebore Randel had a right to go on and work, and the company to pay him, for the contract continued until actual declaration of abandonment. The forbearance, therefore, and all the acts alledged in the replication, were consistent with either the forfeiture or the waiver. If the company had given a written dec- laration to Eandel, dispensing with the forfeiture and setting up the contract it would not be a waiver; for the books say you can't waive a forfeiture by deed by parol. Neither declarations nor acts then have waived. The payment for work was all proper, and legally consistent with the right to forfeit; they were bound to pay whether they declared the forfeiture or not. The contract continued. Ac- cording to the argument of the other side the company had no right to let Eandel work one day after the certificate ; yet they admit that the certificate itself worked no forfeiture; and that after it the com- pany have a discretion to forfeit or not. If they have the discre- tion they must have the means of exercising it prudently, and this requires investigation, deliberation and time. They took suitable time for this, and did no act in the interval that showed a determina- tion not to take advantage o'f the forfeiture; nor any act legally in- consistent with their right of declaring the contract abandoned. The certificate gave the right to abandon without reference to time; and the only remedy for an abuse of it was in chancery. All considera- tion of injury to Randel, or abuse of the power of abandonment by the company, belongs to a court of equity and not of law, for equity can impose terms. 6 Com. Law Rep. 462, 466. The special demurrers depend on the construction which the court may give to the inspection clause. We submit that the time of the appointment of the inspector is not material nor traversable. George Read, junior, for plaintiff. The case is an unparalleled one in this state. It presents an ac- knowledgment on the record of every matter of claim on the part of the plaintiff, and yet a resistance to the recovery of any thing. The defendants admit that they have not measured or estimated the work ; that they have not certified either the work or the damages arising for prevention; they admit that they unlawfully drove the plaintiff from the work and forfeited his contract ; that they retained and still RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 263 keep ten per cent, on all the work done; and yet they say he is not entitled to recover any thing; that there is nothing in the contract to bind them; in short, that there is no law to be found in the land to bring them to a proper accountability. We shall see! The contract gave to this company the power under given circum- stances to declare the contract abandoned. It bestows power and not mere right. This implies discretion; the legal and proper use of the power. 2 Bac. Ab. 77, cov't. L.; 2 Johns. Rep. 395. It strikes at once that as this was a j>ower full to prostrate and ruin the contractor, its exercise was to be strictly within its limits, and in con- formity with the law. The doctrine of waiver does most materially connect itself with the exercise of such power; any illegal use of it is inconsistent with its existence and is a waiver. The principle was entirely mistaken by Mr. Bayard or confounded with a distinct prin- ciple. We hold that any power derived from the acts or omissions of another to avoid or forfeit a contract may be dispensed with or waived in any manner, either by word or act; and may further be destroyed by the very attempt to exercise it in an illegal manner. Mr. Bay- ard's principle is an entirely distinct one; that a sealed instrument can't be destroyed or waived but by an instrument under seal. True, but what would his sealed discharge be? Not a waiver but a release. They are entirely different. A release destroys the contract; a waiver of a forfeiture affirms it. The covenant can't be destroyed but by an instrument of like dignity; but a collateral power to de- stroy it may be waived, and the covenant set up, in any manner by word or deed. Keeping in view then that this power was to be exer- cised strictly and that it might be waived ; inquire what are the facts of the waiver. The certificate was made clandestinely: no notice of it was given to Randel. Could any one suppose from the relation which subsisted between these parties in the interval between the cer- tificate and declaration, that the company entertained any idea of abandoning? It was the state of things at the time of the certificate that authorized the abandonment. The present neglect. All the work done after was changing this state of things and rendering a new certificate necessary, if the certificate was designed as any evi- dence of the actual neglect. And who can say the parties did not so mean it? Delay therefore was inconsistent with the power. An altered state of -things in relation to the work destroyed the certifi- cate, for it became no evidence of existing neglect, and of course de- stroyed the power. Randel was sinking money for the benefit .of the company, doing the unprofitable part of the contract. They, by their acts, induce him to go on as if no power of abandonment existed, i. e. as if no certificate had been given; they conceal it from him, induce him to work; derive benefit from that deception; produce injury and loss to him: this is a waiver. The ten per cent, reserved on work done was an actual gain for this was forfeited on abandonment. How long were they authorized thus to tamper with his rights in the illegal exercise of a power of forfeiture which they were bound strictly to pursue? The truth of the certificate might at any time have been ascertained in three hours. And shall they take two months? How much longer? Where will you stop? The correct- ness of a proposition is frequently tested by carrying it out; and this 264 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. brings you to a case of such monstrous injustice that it cannot be true. If prompt action be not required by the contract there is no rule of action; and manifest injustice will arise. I come now to the prevention clause. Does it contain a covenant? The word shall is a term of obligation. Who ever used this word in reference to the acts of another without covenanting for those acts? And further, it proves the control of the party contracting over the person whose acts are contracted for; it shows in this case that the engineer was the agent and under the control of the company, and they are bound for his acts. The covenant was for the mutual bene- fit of the parties. Randel was benefitted by the prompt payment which he was to get by means of these certificates; and it was greatly to the advantage of the company to have not only the work done, but the damages sustained, fixed by the certificate of their own officer dependant on and responsible to them, and of course having every inducement to take care of their interest. The amount of damage, &c. was referred to a person under the control of the company, to be fixed by his certificate; would it not avoid the whole intent of this arrangement to say that the company were not bound to compel this agent to make certificates? What advantage did Randel gain by referring the amount to the other party's servant if he did not ob- tain a security that the certificates should be made? The object of the concession was prompt payment; the means, certificates; if he did not secure these he yielded his rights for no corresponding bene- fit. And this is not the case of one covenanting for the acts of a third person; it is the case of a corporation which can act only by agents covenanting for the acts of one of those agents; it is a cove- nant to do the act itself through a particular agent for whom it is bound both on the principles of law and of the contract. This ser- vant of the company has been dignified in the argument by the title of Judge. If this grave cause would allow of such pleasantry, we would suppose the application of such a title to such a person was de- signed to turn it into ridicule. One might think from the terms of respect paid to him that this distinguished individual carried in his pockel a commission from the Governor of your state, who only makes Judges, constituting him a high officer permanent in his func- tions and independent in his action, instead of the pitiful creature alluded to in this contract, dependent on the corporation for his ex- istence and character as well as his bread, living only on their ap- proving smiles and dreading their frowns as destruction. He was wholly under their control; they might say of him as Petruchio says of his gentle spouse " he is my house, my household stuff, my ox, my ass, my any thing." IS'o such wild and forced construction can be piit on this contract as would clothe this individual with a character so utterly inconsistent with 'his real nature as the making him an um- pire and judge would be. (Repeat? and enforces his colleagues arguments on the time cove- nant. Cites 3 Bos. & Pul. 575. Replies to the authorities from 1 Maule & Selwyn. If a certificate had been given in this case to any amount, it would then be similar to Price vs. Hollis. If pleaded it would be conclusive. In Taylor vs. Brewer (290) the resolution did not bind the committee to any thing. It was merely an engage- KANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 265 ment of honor. Cites 1 Saund. 33, n. 2, and 2 ditto 118, 119, 123, n. 4, to show that no special request of a certificate need be stated. Rogers, for plaintiff. The inspection clause. Mr. Bayard admits that this clause con- tains a covenant so far as that the company shall appoint an inspector ; the pleadings admit it. By what reasoning does it appear to be the covenant of the company to provide an inspector any more than to secure an inspection and certificate. It was these that Kandel was- seeking to obtain as the means of payment, and for which he was yielding important rights. The argument on the other side gives him nothing ; and it expunges from the contract all the covenants but two, including that on which the court has already given judgment. If the certificate is a condition precedent to the payment for work done, and the company are not bound to furnish certificates, then the covenant for semi-monthly payments is destroyed, and the company had it in their power to stop the work and drive 'off the contractor without abandonment. They might first compel him to neglect, and then compel him to abandon. He could not proceed without funds; and these semi-monthly estimates and certificates were -the means by which he was to procure funds. If the contract secured him these, he knew that while he worked he must be paid; but the construction of the other side secures him nothing, and destroys the most impor- tant provisions of the contract. The idea of reference is equally in- consistent with the covenant for a final certificate, and with the con- cluding clause of umpirage. Was there to be a semi-monthly set- tlement of disputes between these parties before this arbitrator; or was it not rather a rule of payment according to estimates and certi- ficates to be made by the company's agent. The operation which is supposed to have involved so much science and skill, consisted in taking the depth and width of the excavation with a rod, and making a few plain calculations. The damage on the prevention clause might easily be estimated by the number of days the contractor was delay- ed, and the force he had idle. Suppose the contract had been that the company should pay semi-monthly, according to their own esti- mates and certificates; would not this be a covenant on their part to makes the certificates? The defendants being a corporation can act only by agents; and the provision here is substantially that they shall inspect and certify. It has been said these matters were without the scope of the engineer's authority- Why, what else was he to do? They were the very things for which an engineer was needed. Cites on the construction of covenants. J3ac. Ab. 77; 2 Johns. 395; 1 Saund; 8 Com. Low Rep. 368, 71; Vin. Ab.; 2 Mod. 266. An agreement to pay for a tract of land, is an implied cove- nant to convey the land. It was stated in a recital that a fine should be levied, and it was held a covenant to levy the fine. Ot- way vs. Holdip. Covenant to pay an award by a person to be ap- pointed by the parties. Plaintiff declares that the defendant would not appoint. Construed a covenant, otherwise the defendant might defeat it. Applies that authority to this case. 266 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. The abandonment and waiver. What was to be waived here? The right of the company on a given state of facts, to be ascertained by a certificate, to complete a forfeiture. If the condition of things is changed the certificate can be no longer the basis of an abandonment, or if the company do anv act after the certificate, inconsistent with taking advantage of it, it is a waiver. Like a condition of re-entry and forfeiture on non-payment of rent. The non-payment gives the right of re-entry ; the act com- pletes the forfeiture. Any thing inconsistent with the intention to take advantage of the forfeiture, waives it. On the certificate being given I lay it down that the company was bound by law to act upon it or not, to elect within a reasonable time. The nature of the con- tract; the rights of the parties, and the continually changing state of the work, rendered this necessary. The doctrine of compelling the exercise of a power in a reasonable time, runs all through the law, and attaches with peculiar strictness to forfeitures, which the law dis- courages. There is a class of cases which peculiarly regard the injury done the other party in the mode of executing a power. I cite 10 Com. Law Rep. 417. Holroyds opinion. I hold then that where the party having the power to take advan- tage of a forfeiture, delays or does any act in reference to the power which would injure the other party and benefit himself it is inconsis- tent with the legal exercise of the power, and dispenses with the for- feiture. The injury to Randel by delay was manifest. From the moment of the certificate he was working ten per cent, below the contract price ; for the ten per cent, retained is forfeited by the aban- donment. The replication also states, and the demurrer admits that the work done in the interval was that portion of the ^vhole work which was most disadvantageotis and unprofitable to the contractor. The company therefore gained a great advantage in lying by with a secret and concealed certificate until the contractor got through this unprofitable work, and then cutting him off by the abandonment from that which would have been profitable to him. In addition the whole conduct of the company towards him after the certificate recognized and set up the contract, and was wholly inconsistent with any inten- tion on their part to declare the contract abandoned. We submit then, on the whole, that the canal company had not the power on the 30th of September, to .declare on the faith and foundation of a certificate granted the 30th July previous, that John Randel had abandoned his contract. Mr. Jones, for defendants, in reply. Much has been said about our admissions under the demurrers as establishing fraud and hardship, and it has even been argued that the admissions necessary to be made in order to raise the legal questions are to be taken as so many confessions of fact, and operate to take away that very defence which they were made to set up. Admis- sions! How? Why they are mere hypothetical concessions, argu- menti gratia, depending in truth on the decision of the demurrers for their force. Thus a party may be estopped by his deed to set up a defence which his plea shows to be a very good defence, but for the EANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 267 estoppel, yet his demurrer, according to the argument on the other side, admits the sufficiency of the dei'ence notwithstanding the estop- pel, and in fact destroys that defence which it was the very object of the admission to set up. The plaintiff's counsel give an undue weight to these admissions. They establish nothing. They present simply a question of law to the court, whether on certain facts which are admitted only for the purpose of stating the question, the plain- tiff has set out a proper claim or the defendant a sufficient defence. The contract may be divided into two great provisions, all the rest are subsidiary, affirmatory, restrictive or explanatory: First, to do the work: Second, to pay for it. The great purpose and object of the other clauses are to enforce the faithful performance of these two covenants. Was it competent for these parties to stipulate not only that one should do and the other pay, but for an exclusive and con- clusive rule by which the rights of both might be ascertained and definitively fixed without further redress ? If there be any principle settled this is settled. The question then is not what it was compe- tent for the parties to agree upon, but have they contracted to this effect. Otway and Holdip, 2 Modern 266, has been cited. The ground of that decision is that the party prevented the execution of his covenant by not naming an attorney. Here it is not that the company prevented the inspection and ascertainment of the work, damages, &c., but that another person did not certify, or more gener- ally still, that no certificate has been made. Taylor and Brewer, 1 Maul. & Selw. has been explained by supposing that it was not a legal obligation to pay but a mere promise referable to the honor or discretion of the party. It does not so appear from the case. The quantum of remuneration is left to the liberality of the committee, but there was a legal obligation to make some remuneration. Yet an action could not be sustained without an award fixing the compensa- tion which was a condition precedent. Breaches are assigned on five clauses of this contract. To all seven- teen of the breaches the defendants have pleaded in bar the certi- ficate of neglect and subsequent declaration of abandonment. The questions then are, first, on the construction of the contract, and, secondly, whether the breaches are well assigned. I shall consider the three clauses of inspection, prevention and deviation together. Do these clauses make the company responsible for the conduct of the engineer in doing acts which he is authorized to do by the mu- tual agreement of the parties, and for their common benefit? The averments are that the engineer did not do these acts, or that they were not done. In no part of the pleading is it intimated that this default of the engineer was occasioned by the defendants. The broad question therefore is whether the company are bound for his acts. They call him our engineer, our servant, our agent. Admitted. But is he exclusively our agent in reference to these matters? Our servant may be the mutual agent of John Randel and ourselves if the contract between us makes him so. If he is our agent, exclusively, it follows that what he was to do as our agent we could do without him. The rule is universal ; what a man can do by his agent he may clo himself. It would follow, therefore, that the defendants in this 268 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. case were authorized to inspect and estimate and certify, which is contrary to the terms of the contract It is agreed that the works shall be inspected; the agreement of both, a mutual covenant equally binding on both. How can it be that either party is peculiarly bound? It may be, as in Otway and Holdip, that there is an im- plied covenant that neither party shall do any act to prevent the mu- tual agent from doing his duty ; but in such case the pleadings should aver a prevention. The breach assigned on the prevention covenant is an attempt to have the damages ascertained, in a mode different from the contract; without certificate. It avers that R'andel was prevented, and that damages arose, which were not certified. Was the engineer ever called on for a certificate? He was not bound to give a certificate but on a claim of damage. If he was called on and refused would the breach be good? I say not; for he is the judge of the claim ; and his refusal to certify is a judgment in the case that nothing is due. Prima facie the absence of the certificate is fatal to the claim of damage. But if it is contended that the engineer has not refused, but merely neglected to certify, then Eandel breaks his covenant by coming into court instead of looking to the engineer for redress in the mode agreed upon. I conclude then that these breaches are founded on a plain misconstruction of the contract, and are bad. What acts amount to a violation of the clause which the court have considered, a covenant in relation to time ? I can easily imagine a breach of that covenant, but not by the acts here relied on. If the company had asserted the right to make the contractor complete the work in less than four years, and without any certificate turned him off, at a shorter period it would be a breach. But an abandonment on a certificate can have no such effect. It has no relation to 'the time clause. It is admitted that the plea is good if well pleaded ; that is, if the declaration of abandonment was regular on the certificate, it is a good answer to all the breaches to which it is pleaded. But it is ob- jected that the plea itself shows the abandonment to have been irregu- lar, by reason of the delay and the conduct of the company after certificate. In point of law and on principles of special pleading that interval does not appear. The time stated in the plea does not tie the defendants down, on the trial they might prove an abandonment on the 31st of July or any other time. It does not therefore legally and conclusively appear from the plea that the abandonment was on the 30th of September. The time is laid under a videlicet. We are not even bound to prove that the certificate was on the 30th of July. But the replication does not state an interval of two months between the certificate and abandonment, and this- opens a consideration of what we are authorized by the contract to do ; whether this power of abandonment is restricted as the plaintiff contends, and if, by the terms or meaning of the contract, the abandonment must necessarily be an act following immediately on the certificate ; an act of instan- taneous and continuous succession. Have we, in short, exercised this power as by the contract we were authorized to use it, or so irregu- larly and illegally as to destroy the right to exercise it at all ? Has the word on the force attributed to it by the argument on the other side. On, simply means in reference to the certificate; foun- HANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 269 ded upon it as a basis or authority. Suppose the determination is to be in a reasonable time ; What is a reasonable time ? How settled. It must be governed by the contract and the character of the work. Not like cases arising on bills or notes or policies of insurance. But there are terms in this contract which show that this immediate action was not necessary. It gives the power of abandoning an abiding, continuing power not to be divested but at the will of the company. To say that this power must be exercised instantly is to take it away in the very breath in which it is given, and to destroy that discretion which the contract confessedly gives to the company. That discretion cannot be exercised without allowing time to deliberate and decide prudently. Our construction of the contract is more liberal to the contractor than theirs According to their construction the company was obliged to destroy Handel the moment the certificate was given. The certificate was as an accusation or charge of negligence made Jigainst the contractor by the engineer before the company; the inter- val between it and the abandonment was properly occupied with in- vestigating its truth and into the necessity of putting an end to the contract, in hearing the contractor's defence. Whilst this investiga- tion was going on the contract ex necessitate continued ; working un- der it and paying for the work necessarily followed, and there was every inducement for Randel to work more diligently, whilst the com- pany were deliberating on his conduct as contractor ; yet by a solecism in argument these acts are assigned as a waiver of the power on the part of the company to declare the abandonment. Of what is this a waiver? Of the contract, the certificate, or the power to abandon. I can readily understand how a party can waive a right on consideration or for an equivalent. No such thing here. Why is the receipt of rent by landlord a waiver of notice to quit? Because it treats the party as a tenant, and not as a trespasser. Have we accepted or done any thing here inconsistent with full power to abandon? We have accepted his services and he payment for his work, but how ? In execution of a subsisting contract. The certificate here did not create any forfeiture. In the case of leases, the non-pay- ment of rent or other conditions broken constitute the forfeiture. The entry or ejectment are mere remedies for the forfeiture. The t6n- ant becomes a trespasser from the moment of condition broken, and the acts which dispense with the forfeiture operate as an estoppel in pais, because they treat him not as a trespasser, but as a tenant. The question of waiver is a matter of law for the court, and is not to be left to the jury. If there be a doubt in relation to the facts, the jury may find them under the direction of the court, and the court will pronounce whether they amount to a waiver ; so a dictum of Jus- time Mansfield in Taunton can by no means be admitted as law. (The argument on these demurrers occupied six days.) Chief Justice Clayton delivered the following opinion of the court. CLAYTON, CH. J. To put the true oonstruqtion on the contract be- tween John Randel and the Chesapeake and Delaware Canal Com- pany, it will be necessary to look through the whole instrument, to see its general, nature and design, in order to discover what was the real 270 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. meaning and intention of the parties; and when we have gathered from it that intention, it must be the rule of our decision. No settled form of words is necessary to create a covenant. Any words in a sealed instrument by which a party manifests an intention to become bound to another to do or not to do an act, either by himself or a third person, if the act be possible, and not immoral or unlawful, will make a covenant, and the law will hold him to his undertaking, however in- artificial the words may be which he has used, and covenant will lie. (Inspection clause.) The plaintiff on his part covenants to con- struct and make a certain portion of the Chesapeake and Delaware Canal, and the defendants on their part covenant to pay him the stip- ulated prices. This is a work of great magnitude, requiring great labor, the employment of vast numbers of men, and great capital. It is an undertaking which no contractor in this country, with our limited fortunes, could hope to accomplish, relying on his own funds. Hence the necessity of the stipulation in the contract for speedy and frequent payments during the progress of the work, and hence the necessity of fixing upon some mode by which the amount of these stipulated payments should be ascertained. The very existence of the plff. as a contractor depended on the fulfillment of this part of the contract. Delay was ruin: it would necessarily in its consequences work a forfeiture of the contract. It may not be needless to remark that the plaintiff did not hold himself out to the defendants as a man capable of accomplishing the task which he had undertaken upon his own capital. The contract shows that they were aware -of his inabi- lity in this respect, and they were aware of the necessity of furnish- ing him with money as the work proceeded. It is readily seen from this, how important it was to the plaintiff that the defendants should agree with him to select a person who should examine and inspect the work during its progress, and estimate the number of cubic yards of excavation and embankment, and certify such estimate, upon which only could the plff. demand his semi-monthly payments for work done. It is true that the two clauses connected with this sub- ject, and which seem naturally to belong to and form a part of each other are disjoined, having interposed between them the proviso in relation to the ten per cent, and the clause relating to the revision of prices. Connect these two clauses relating to the same matter of contract, and they read thus : " And the party of the second part (the defts.) agrees to pay the party of the first part, his executors, admrs. and assigns, for completely performing this contract, the sums which are stated as the cost thereof in the said estimate of the party of the first part, under the conditions and provisions expressed in the annexed schedule, payments to be made every fortnight ac- cording to the said schedule for the work which the engineer of the company shall certify to have been actually done by the party of the first part." " And the said works, during their progress, shall be carefully examined and inspected; and to prevent misunderstanding and disputes it is hereby agreed that Benjamin Wright, Esquire, or some other competent engineer, to be selected by the party of the second part, shall be the inspector of the said works, and shall esti- mate the number of cubic yards of excavation, and also of embank- tANDEL, JUN. VS. CllES. & DEL. CANAL COMPANY. ment, and his estimate thereof, when certified to the party of the second part, shall be final and conclusive between the parties." It was said in the argument by the counsel for the defendants, that this latter clause was introduced into the contract for the pecu- liar benefit of the canal company; but we think that no sufficient reason was assigned for arriving at this result. The canal company, being a corporation, cannot act of itself, but must act through its agents. The plaintiff having undertaken to execute a work for them upon their own lands, any agent whom they might appoint for that purpose, had a right to go upon the lands to inspect the work, esti- mate the number of cubic yards of excavation and embankment, and certify such estimate to his employer. No agreement of the parties was necessary to legalize such acts or to give any such power. It existed independently of any contract. So far at least no contract was necessary; so far it was not beneficial to the company. It is true the assent of Randel was necessary to make the certificate oblig- atory and conclusive upon him. But if this had been an express covenant on the part of the defendants, drawn in as strong language as could have been used to make it their covenant only, by which they engaged to appoint an inspector who should examine and in- spect the works, should estimate the number of cubic yars of exca- vation and embankment; should certify that estimate, and that the certificate should be conclusive on the parties, by sealing the instru- ment he would have given his assent as strongly as if he haH in ex- press terms agreed to it. We have shown how infinitely important it was to the plaintiff that his work should be inspected in its prog- ress, and its amount estimated and certified. We have already seen by the first clause of the contract, just quoted, that the company, in express terms, covenant to pay every fortnight for work which the engineer of the company shall certify to have been actually done. We do not lay much stress on the words " which the engineer of the company shall certify ; " but we do attach must importance to the positive and sole covenant of the company that they will pay every fortnight for work which their engineer shall certify to be done. If there was nothing else in this contract, an ordinary man in forming his opinion of this clause, and not choosing to exercise his subtlety and ingenuity, would not hesitate to say that as the company had engaged to pay every fortnight for work actually done, and as the delay of payment would not be honest, would be contrary to good faith, and might be ruinous in its consequences to the other party, they at the same time meant to engage that their own engineer should perform this service. For we deny that the engineer, or any other servant of the company, in the outset, and before he had taken upon himself this especial duty of inspecting, estimating and certifying, would be liable to the plff. for not performing this duty. At the same time we do not wish to be understood as denying the position, that where one gratuitously undertakes a trust, he is responsible for the faithful execution of It. Besides, it does not appear on this rec- ord that Wright, or any other person, ever assumed this trust; of course no one could be responsible. Here is a wrong without a rem- edy, unless the company is responsible. But Benjamin Wright, or some other competent engineer, to be selected by the company, is to 272 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. be the inspector. One may be a very competent engineer, and yet not be very competent to respond in damages to a party aggrieved. The next clause commences with a positive and express engage- ment that the works shall, during their progress, be carefully exam- ined and inspected. It has been admitted in the argument that the company were bound to select an inspector. Who makes the under- taking here that the works, during their progress, shall be carefully examined and inspected? Not Randel, for the other side has the se- lection, and they may not choose to select. So far, these covenants are all on the part of the company. Then come the words " and to prevent misunderstanding and disputes, it is hereby agreed that Ben- jamin Wright, or some. other competent engineer to be selected by the party of the second part, shall be the inspector of the said works, and shall estimate the number of cubic yards of excavation and of em- bankment, and his estimate thereof, when certified to the party of the second part, shall be final and conclusive between the parties." It was admitted in the argument at the bar, that by virtue of this clause the company did covenant to select an inspector. It is ob- vious, however, that the words "and to prevent all misunderstand- ing and disputes it is agreed" which it is contended in relation to other matters in the clause, constitute a mutual and reciprocal agree- ment between the parties in relation to the same thing, affording no right of action to either against the other, under any circumstances, equally apply to the selection of an inspector as to the other matters in the clause; and if it can be fairly collected from the words used, that it was the intention of the company to covenant for the selection of an inspector, it may be as fairly collected that they intended to bind themselves for his performance of his duty. Suppose the words to be the words of both parties, still they may be taken distribu- tively, and used as the words of each as far as the sense of the par- ties and the true meaning of the contract shows that each meant to bind himself to the other, either to abide its terms or to perform its stipulations. For what purpose did the company bind themselves to appoint an inspector? They had the power to do so independently of the contract; why covenant to do it? Does this not show that it was intended for the benefit of Randel? Why else should fie insist upon it as a matter of contract? It was all-important to him. His existence as a contractor depended on the inspector's examining the works, estimating the number of cubic yards and certifying the amount; for without his certificate he could not demand a cent for work done, and upon frequent and punctual payments depended the execution of his work, and his continuance as a contractor. If the words in this clause are to be considered as the words of both par- ties, we think we have a right to distribute them to each as the na- ture of the undertaking, and the intention of the parties show that each meant to bind himself to the other. The intention of the par- ties fairly collected from this contract seems to us to be this:. the canal company, on their part, agreed with Randel that they would appoint an inspector, that he should examine the works, that he should, at least once a fortnight, estimate the number of cubic yards of work, and that he should certify the amount ; and Randel, on his part, agreed that the certificates of this agent of the company should BANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 273 be conclusive evidence against him. To the canal company this was a most favorable agreement. They had the selection of the person; and the only restriction upon them, in this respect, was that he should be a competent engineer. He was the creature of their will, removable at pleasure, and dependent upon them for his compensa- tion. Their undertaking was not much, the risk was nothing; they only engaged that this agent of their own creation should perform the duty assigned him by this agreement. To Eandel this was of essen- tial importance. It is true when this agent once undertook the trust confided to him, when he assumed and attempted to perform the duty of inspecting, estimating and certifying, he was responsible to the plaintiff for the faithful and honest execution of the task. The cer- tificate when given, however false, dishonest or malicious, the plain- tiff had agreed should be conclusive evidence against him, and, per- haps, his only remedy for this wrong would be a suit against the in- spector. Still if the inspector would not or did not perform this duty in some way, the company were liable to the plaintiff on their covenant. (Prevention clause.) The next clause to be considered is in the following words: "And it is further agreed as aforesaid, that in case the party of the first part shall, from the default of the party of the second part, in any particular be prevented from pursuing the due and best mode of executing this contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof, shall be certified by the engineer of the party of the second part for the time being, and on his certificate, which shall be final and conclusive between the parties, the party of the second part shall make to the party of the first part such reason- able compensation and allowance as by the said certificate may be ascertained and fixed." It was remarked upon with much earnestness by the counsel for the defendants, that the words, "and it is further agreed as afore- said" refer to the next immediately preceding clause in the con- tract which commences " and it is further agreed between the par- ties;" and they contend that this clause should be construed in the same manner as if the words, "between the parties/' were added to the word "aforesaid." Granted; and what is gained by it? Every covenant is an agreement between the parties to the instrument, for there can be no covenant or agreement except between two or more persons ; one undertaking that a thing shall or shall not be done, and the other assenting that it shall or shall not be done. Most of the remarks which we made on the clauses already con- sidered are equally applicable to the one now under consideration. The present is more strongly marked. It is so clearly a covenant that we cannot see how any one can doubt it. The persons who framed this clause, who assented to it, and who affixed to it the seal of the corporation, must have meant something by it, and if they were reasonable men they must have intended that that something was a reasonable thing. What is it as their counsel now contend? It is that if John Eandel, from the default of the canal company, shall be prevented from pursuing the due and best mode of executing his contract, or from entering upon or flooding lands for that purpose, 35 274 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. the pecuniary damage sustained by him in consequence thereof (assuming damage to be sustained by their default) they will make reasonable compensation and allowance for, if their engineer for the time being will certify. This is the construction given to this con- tract by the defts. Is it a reasonable construction? Can such have been the intention of the parties? Can such intention be collected from the language used? If from the default of the company the pltf. receives injury, the pecuniary damage sustained by him will be paid by them, if their engineer will certify ! Now what is the real language of the parties? That in case the plff. shall from the default of the defts. in any particular be prevented from pursuing the due and best mode of executing the contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof shall be certified by their engineer for the time being, and on his certificate, which shall be final and con- clusive between the parties, the defts. shall make to the plff. such reasonable compensation and allowance as by the said certificate may be ascertained and fixed. No language can be stronger or more clearly show the intention of the parties than this. The company undertook for the engineer, that he should ascertain and fix, and cer- tify, the pecuniary damage sustained by the plaintiff in consequence of their default, and when thus ascertained they would pay it. Any other construction renders the clause nugatory. It assumes that pe- cuniary damage has been sustained by their default, but it is not to be paid unless upon the certificate of their engineer, and hence the neces- sity of engaging that the engineer should ascertain and certify the dam- age. Without this the plff. would confessedly be wronged without a remedy. This ought not to be allowed unless the clear and manifest intention of the parties, to be collected from the language of the con- tract, forces this construction. The language used does not; on the contrary, it forbids it. Common sense forbids it. Any other con- struction leaves the plff. aggrieved without remedy; for we must re- peat that he had no redress against the engineer for refusing to take upon himself the office of ascertaining and certifying the damages. Besides, what persons, when entering into an instrument of writing, ever think of looking to any other than the parties to it for redress in case of its violation. It is scarcely necessary to show the high importance of this provi- sion to the plff. ; one without which he could not get along with his undertaking; one without which he was remediless, however great and serious his loss; one without which his entire operations may have been suspended; with five hundred or a thousand laborers, and as many carts and horses in his employment, all thrown idle on his hands; and yet he is to knock in vain at the doors of this corporation for compensation, unless he comes with the certificate of their engi- neer in his pocket, when no one was under any obligation to him to make this certificate. We forbear making any further remarks on this clause, because we did decide at the last term that this was the covenant of the defts. and that they were answerable to the plff. for a violation of it, if such violation has occurred; and we think that the counsel ought not again to have brought it in question. (Ante 153.) The next clause is that in which it is agreed that the time within KANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 275 which it shall be incumbent on the plff. fully to perform and complete the said contract shall not be taken to be less than four years from and after the first day of May next ensuing the date of the articles of agreement. This cla\ise was fully considered at the last term, and the court, in giving judgment upon it, assigned their reasons at some length for the determination to which they had come. It will not be necessary, therefore, now to repeat those reasons. We will merely state the conclusion to which we came: that this was a covenant on the part of the canal company to allow the plff. four years from the first of May fully to complete his contract ; and that consequently any positive act of disturbance (we do not mean acts of non-feazance, but some effective application of power) by which the plff. might unlaw- fully or unjustly be driven off by the defts. or obstructed in carrying on the work for any length of time, would be taking the time to be less than four years. They covenant to allow him four years from the first of May to complete the work; and he, on his part, impliedly covenants to finish the work in that time. If a suit were brought against him on this implied covenant for not finishing the work with- in the stipulated time, it would be a good defence to the action if he could show that he was prevented from doing it by the acts of the company; and if they unlawfully interrupt him, so that he cannot and does not complete the work within the time, they do not allow him the time agreed on, but take it to be less than four years. The other clause, which provides against the plff's. being prevented from pursu- ing the best mode of executing his contract by the default of the com- pany, looks to rather a different state of things. It is more general and comprehensive in its terms, and seems to have intended to provide in a more especial manner against the acts of third persons, although the words " if he shall be prevented in any particular " might seem to comprehend most of the cases that might arise. The acts of third persons to which we allude are such as these : where persons through whose lands the canal might pass, and from whom no title or license had been obtained by the company, might obstruct and resist the plff. from entering upon their lands to execute the work; this would be such a prevention through the default of the company as would make them liable on this covenant. So any positive act of obstruction of their own would be a breach of it, for it would be by their default. It has been said that these are not covenants upon which an action would lie, but mere submissions to arbitration. We think other- wise; for it has scarcely a feature of a submission to arbitration. Without noticing the strangeness of the notion that one party should agree to submit all his rights to the determination of a person to be selected at pleasure by the adverse party, it is sufficient to say that at the time this contract was entered into, no differences or disputes had or could have arisen; the most that could be contended for by the defts. is, that it is a prospective agreement to submit future dif- ferences as they might arise. And we understand the law to be set- tled, that a prospective agreement to refer all matters in dispute which may hereafter arise cannot be shown as a defence to an action lor the recovery of such disputed matter, for the superior courts will not suffer themselves to be ousted of their jurisdiction by the private agreement of the parties. 1 Wils. 129; 8 T. Rep. 139*; 2 Ves. Jr. 276 RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 129; Mitchel vs. Harris; 2 Bos. & Pul 131; 2 Atk. 569; 2 Bro. ch. cases 336; 1 Saund. PL & Ev. 177, 179. This is not the case of a reference actually depending, or of a reference made and deter- mined. Even in the case of a clear submission of existing disputes either party has a right to revoke the submission. It is true he is answerable on his agreement to submit; but after the revocation this would be no defence in an action to recover the disputed matter. His only liability is on his agreement to abide by the reference; if he violates that agreement it is not a defence to an action for the thing disputed. We agree so far that if the engineer or inspector had given his certificate, that that certificate, by the agreement of the parties, was conclusive evidence on both ; and that in regard to work done, or for other matters within his competency to certify it was the only species of proof substituted by the agreement of the parties for all other; but if he neglected or refused to certify, then the company be- came responsible to the plaintiff for all the damage which he had sus- tained by this neglect or refusal, .or for want of this certificate. (The waiver.) To the plaintiff's replication to the defendants' third plea they have put in a general demurrer; and the question sub- mitted to the court is whether the facts stated in this replication are sufficient in law. It is not necessary now to state these facts, because they are sufficiently understood. The plea to which this is an answer alledges that Benjamin Wright, on the 30th of July, 1825, and before and since was the engineer in chief for the time being of the defend- ants, and that on that day he was of opinion that the plaintiff did un- reasonably neglect to prosecute his contract, and that afterwards, on the same day, he did in and by his certificate certify his said opinion to the defendants, and that on the 30th of September following the defendants did, thereupon, on the said certificate, determine the said contract to be abandoned by the plaintiff, of which said certificate and determination the plaintiff had notice on the first of October, by means where of the defendants were entirely exonerated from every obligation imposed on them by the said articles of agreement, except to pay for work already done. The replication in answer to this con- fesses these facts, but attempts to avoid them by the matters which it discloses, and concludes by alledging a waiver of the certificate and a ratification of the contract. The question then is, did the company waive the certificate and ratify and confirm the contract? It was insisted at the bar, that as the power to declare the abandon- ment on the certificate of the engineer was founded on or derived from a deed, it could only be dispensed with or waived by matter of as high a nature as that which gave or secured the power, that is to say, by an instrument under seal, or by some act of the defts. legally inconsistent with the power secured. With regard to the first prop- osition, we think it untenable on principle. It is true that when a duty accrues by the deed, and is ascertained at the time of the mak- ing of the writing, as by covenant or bond to pay a sum of money, in that case the duty, which is certain, takes its essence and operation originally and solely by the writing, and therefore it must be avoid- ed by matter of as high a nature. But where no certain duty accrues by the deed, but a wrong or subsequent default, together with the KANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 277 deed, gives an action to recover damages for such wrong or default, such wrong or default may be discharged by parol, and accord with fcatisfaction would be a good plea. As if a tenant covenants to repair a house, and an action is brought against him for not repairing, the covenant does not give the plff. at the time of making it any cause of action; but the wrong or default in not repairing the house, to- gether with the deed, give an action to recover damages for want of reparation. The action is not merely founded on the deed, but on the deed and the subsequent wrong, which wrong is the cause of action, and for which damages shall be recovered ; and in every action where compensation is demanded by way of damages, such right of action may be discharged by parol. So here the power claimed is not founded on or derived solely from the deed. It arises from matter subsequent to the deed, the neglect of the plff. to prosecute the work, and the con- sequent certificate of the engineer. The deed originally and of itself does not give the power to declare the abandonment; but the certifi- cate, coupled with the deed, does. This certificate then may be waived, or dispensed with by parol, and there is no unbending rule of law to forbid it. The first proposition having been shown to be incorrect, we think the second is equally fallacious and unwarranted by authority. According to the counsel's idea of legal inconsistency, what act of the company would be legally inconsistent with the power to declare the abandonment after certificate, short of lying by and witnessing the entire completion of the work? That surely would be a waiver of the certificate, because the power derived from it never after that could be exercised. Whether waiver be the most appropriate term that can be used for the occasion is a matter of but little importance, so that we understand the notion intended to be conveyed by it. It mat- ters not whether the thing in controversy be said to be yielded, aban- doned, resigned, foregone, waived, or lost; we are equally understood when using either of the terms. The books use the word waiver when speaking of subjects like the present. The principle runs through the law, and is applicable to a variety of cases in addition to those men- tioned at the bar. It may not be necessary to mention them here, be- cause it would lead to much prolixity. It is manifest that whenever a discretionary power is given, as in this case, from the nature of the thing itself, it may be waived, or not exercised at all, for otherwise it would not be a discretionary power, to be exercised or not, as the party might think best, but an obligation which he could not dispense with. This certificate, then, or the power to take advantage of it, might be waived. What acts will amount to a waiver? Whenever one person has an election to do or not to do, an act in which the rights and in- terests of another are concerned, he is bound to make his election so as to be least prejudicial to the rights and interests of that other ; and if by his unreasonable delay the rights of that other become impli- cated and he receives injury, who ought, in justice, in good faith, and in law, to bear the burthen or sustain the loss the party injured, or he who has caused the injury by his own negligence ? Common sense and the law, which is founded on the highest good sense, say the de- faulter ; that he who is innocent and in no fault shall not be prejudiced by the negligence of the other ; that whenever the right of election is 278 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. attempted to be so negligently exercised that a manifest and irrepar- able injury must follow, the law interposes and says you have waived your right to elect; you cannot now exercise it without manifest injus- tice; you are therefore concluded, and shall not exercise it at all. What is the state of the case here? The facts upon which we are called on to give our opinion on this demurrer are to be found in the replication to the defts. third plea. On the 30th of July the engineer certified his opinion to be, that the plff. had unreasonably neglected to prosecute his contract; that on the 30th of September following the defts. declared the contract to be abandoned, and that on the first of October they gave notice to the plff. of this declaration of abandon- ment. The other facts stated in the replication, material to be here considered, are these: that during all the time between the 30th of July and the 1st of October the plff. was diligently prosecuting his contract, and did with great expense and labor prosecute the said con- tract, under the inspection, by and with the permission, and by and under the direction of the said company ; and that during that period the defts. paid for such work divers sums of money; that the work thus performed was less profitable and more disadvantageous than the work remaining to be done; and that the work remaining to be done after the 1st of October was th^t portion of the whole work to be per- formed which was most profitable and advantageous to him. These facts are admitted to be true by the demurrer. This is the naked con- duct of the defts. not explained or excused by their pleading. With the certificate of the engineer in their possession from the 30th of July to the 30th of September, not a word of it is whispered to the plff. while he is laboring on the canal during these two months at re- duced prices, prosecuting his contract at great expense, and, as he al- ledges in his replication, under the immediate inspection of the com- pany, they never inform him of the certificate till the first of October, when notice is given him that they have declared his contract to be abandoned. What evidence the defts. may have it in their power to produce is not for us to inquire on this demurrer. We can only look to the record and gather the facts from it. It may be observed also, that by the agreement of the parties, ten per cent, was reserved for contingencies, no part of which was to be paid to the plaintiff till the entire completion of the work ; and in case of the forfeiture of the con- tract he was never to get any part of it ; so that upon all the work per- formed during those two months ten per cent, is gained by the defts. and is consequently lost by the plff. ; or at least his claim to it is for- feited. We have said that the defts. might waive the benefit of this certifi- cate. What acts of theirs will amount to a waiver? If thev had kept the certificate in their possession till within a short time of the entire completion of the work, no one would say that thev had not waived it : the injustice in that case would be too grlaring not to strike every one. We are not to measure the extent of the injurv, nor to enquire whether it be great or small. And what is the injustice on the other side ? If the plff. still continued unreasonably to neerlpct his work, and so often as he did neglect the work, the engineer was at hand to certify the fact. But it may be that on the 30th July the plff. did unreasonably neglect to prosecute his contract; and yet on RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 279 the 30th of September might have been prosecuting it with vigour; so that the engineer would not then have given his certificate. The defendants after getting the certificate were entitled to a rea- sonable time to determine whether they would take advantage of it or not. Yet we think that a delay of two months, when that delay is not explained or excused, was not a reasonable time. We are therefore of opinion that the certificate and the consequent power of declaring the abandonment, have been waived." Harrington, J ., applied the principles of this opinion to the plead- ings in the case, and gave judgment for the plaintiff overruling the demurrers to the first, second, third, fourth, fifth and sixth breaches of the second count; and the fourth, eighth and fourteenth breaches of the third count : And judgment for the demurrers, the defendants, on the first, second, third, fifth, sixth, ninth, tenth, eleventh, twelfth and thir- teenth breaches of the third count. MONDAY, December Stli, 1833. The demurrers having been disposed of, the cause proceeded be- fore a jury; who were empanneled and sworn to try the issues joined, and to assess the damages on the seventh count, on which judgment was given at the last term, and an order made in the nature of a writ of inquiry for a jury attending at this court, to inquire and re- turn the damages, costs, &c. The jury were John Clark, James Roberts, Baymon Deakyne, Thomas Morrison, George B. Meteer, Israel Garretson, Thomas Rob- inson, Jacob Whiteman, John W. Evans, Arthur J. "Whiteley, James C. Mansfield and George Foote. The issues in fact, which were numerous, may be ascertained from the following synopsis; referring to the pleadings as stated more at length, ante, &c. First count. On the lock contract. Plea, non est factum; issue. Second count. General plea to the count, non est factum; issue. First breach. On the inspection covenant. Plea No. 4, (same as 3.) The abandonment. Rep. Waiver. Issue. Second breach. On the covenant for estimating the work done. Plea 4. The abandonment. Rep. Waiver. Issue. Third Breach. On the prevention covenant. Plea 4. The abandonment. Rep. Waiver. Issue. Fourth and fifth breaches. On the same covenant; varied. Same plea, replication and issue. Sixth breach. On the time covenant. Same issue. Third Count. General plea to the count, non est factum. Issue. Fourth breach. On the prevention covenant. Plea 4. The abandonment. Rep. Waiver. Issue. Fifth breach. Non-payment of work certified. Plea 7. Payment. Rep. and Issue. Seventh breach. Non-payment of work certified. 280 HANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. Plea 13. The revision of prices and payment according to the revision schedule. Rep. That the revision was obtained by fraud and covin. Rejoinder and Issue. Eighth breach. On the prevention covenant. Plea 4. The abandonment. Rep. The waiver. Issue. Fourteenth breach. On the time covenant. Same issue. Fourth count. Single breach on the inspection clause. Plea 16. The appointment of an inspector. General traverse and issue. Plea 20. Ditto with averment that he did inspect, &c. General traverse and issue. Plea 21. The abandonment. General traverse and issue. " 22. The abandonment. Rep. The fraud and covin. Re- joinder and issue. Fifth count. Single breach, that no estimate of the work was made, &c. Plea 17 like plea No. 16 to fourth count and same issue. " 20, 21, 22. Same as to the last count and same issues. Sixth Count. On the inspection clause. Plea 18. Non est factum. Issue. " 19. Same as No. 16 to fourth count and same issue. " 20, 21, 22, same ut ante. To prove the execution of the contract, plff. gave in evidence the deposition of John Fritz, one of the subscribing witnesses. He also offered in evidence the deposition of Paul Beck, jr., who was not a subscribing witness, but at the time of its execution, a member and director of the canal company. The evidence was objected to. Mr. Frame. The testimony of Paul Beck is irregular, for he is examined to the execution of the contract which ought to be proved by the subscribing witnesses, and also to the effect or contents of the contract which must be proved by the contract itself. The execu- tion of the commission is irregular. No commissioner named on our part. The interrogatories are leading and have been excepted to for that reason. Third interrogatory. Did or did not the company say so and so? It suggests the answer; inquiries not for facts but conver- sations. Did you not understand the director by such language to mean so and so? The inquiry should be for the words and the jury are to construe them. The interrogatories not only leading and in- quire for conclusions, but they go into matters not relative to the cause, the private feelings of Wright towards Randel. This is purely a civil suit; an action of covenant; it is not a case for vindictive or exemplary damages; nor is it a case with which the ill-feelings or malice of the parties, and especially of Benjamin Wright, has any thing to do. Question. Whether witness ever heard Benjamin Wright or the directors say the prices were revised for a particular purpose? Now, what purpose is this for but to insinuate a fraudulent motive, either in the company or in Wright, and to aggravate the damages by showing malice. It can possibly have no reference to any issue but that on the seventh breach, third count, which is whether the certificate of revision was obtained from Wright by any EANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 281 fraud practiced on him by the company. Now this inquiry does not tend to prove that issue, but that Wright was connected with the company in defrauding Eandel; a particeps fraudis. J. M. Clayton. The commission issued in this case on the 28th of May, 18 to Charles J. Ingersoll, Thomas Janvier and Thomas J. Wharton. The record shows that on the 24th of May the de- fendants named Thomas J. Wharton as their general commissioner in Philadelphia. Beck's evidence proves that he was a member and director of the company. He can prove the seal and the execution of the contract from his knowledge as a member of the board, and his testimony is the admission of a party. 1 Stark. Ev. 123. The interrogatories are not leading further than is necessary to direct the mind of the witness to the subject of inquiry, and this is proper. Then as to the relevancy of the testimony. The inquiry on the seventh count is what damage we have sustained by reason of their having taken the time, &c. ; any act exhibiting a settled purpose on the part of the company to drive Eandel off is important in ascer- taining the damage. The revision of prices was the first great step tending to this object; and the object itself is essential to be dis- closed. The issues on the fourth, fifth and sixth counts. Plea twenty-one alledges that Wright was of the opinion that Eandel neglected, &c., and did certify that opinion. The replication flatly traverses the whole of the plea. The opinion is an essential part of it; and any thing that proves it was not bona fide his opinion proves the issue. On the replication of waiver the jury are, under the direc- tion of the court, to try the question of unreasonable neglect. Is it not material in the proof of this issue to show that the company and their agents embarrassed the contractor in every way in their power, with the view of making him abandon the work? The revision ac- cording to the contract was to be made, if at all, for the purpose of conforming the prices to the labor; now, if this testimony shows that it was not made for this purpose, but to ruin Eandel and drive him off, is it not relevant? But on general principles I contend that all the acts and declarations of this company and its agents, in ref- erence to the subject matter of this suit, are evidence against them. Ingersoll. This is an action of covenant broken; we are to prove the breach. If in doing so a malicious motive is developed, we can't help it ; we are not to be prevented from proving a breach of contract because malice is mixed with it, nor from proving their conduct and acts because they are fraudulent. The opinion of Wright in giving the certificate of neglect is in issue; the bona fide opinion: malice dis- proves that opinion., As to the 7th count, the jury sets as an in- quest of damages merely; the court act merely as moderators, as the sheriff in England in executing a writ of inquiry. I doubt, then, in relation to that part of the case, whether the defts. have the right to object to this testimony. Bayard, in reply. These interrogatories show an intention to lead the witness; to put in his mouth the very words he is desired to de- pose to. They further call for the understanding of the witness, his conclusions and inferences. As to the certificate, it is admitted that Wright acted as an umpire or arbitrator in giving it; and the courts of law cannot investigate the conduct of an arbitrator in reference to 282 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. an award of matters in pais. The opinion of the engineer is of no importance, for it is not traversable; the certifying the opinion bound the parties, whether it was so or not. The certificate of neglect is the proof of the fact agreed upon by the parties, and neither it nor the opinion is enquirable into. We do not contend that an act con- stituting a breach cannot be proved because it is malicious, but only that declarations, or even acts not amounting to a breach, cannot ; be given in evidence for the purpose of inferring a malicious intention to break the covenant. On examining the interrogatories, the court were of opinion that many of them were leading, and suppressed the deposition on this ground, without deciding, at present, the other questions raised in arguing the objections. Written exceptions had been filed to these interrogatories, and the plff. had full notice of the objection. The plff. now offered the contract in evidence, as sufficiently proved by Fritz's deposition. It was objected to, not on this ground, but for a variance from the contract declared on. Frame. The contract declared on purports to be a contract be- tween two parties: John Randel of the first part, and the Chesapeake and Delaware Canal Company of the second part, entered into by both, executed by both, that is to say, under the hand and seal of R. and under the corporate seal of the company and hand of its presi- dent. The contract offered in evidence is not signed or sealed by Randel; it is an unexecuted, incomplete contract. The conclusion of the paper itself shows that it is incomplete. " In witness whereof the parties have," &c. showing that the contractor was designed to be executed by both parties. J. M. Clayton. We have not professed to set out the original con- tract; that is in the defts. possession, and we could not get hold of it. But we had a copy, and more than . copy, a counterpart, executed by the canal company, under its corporate seal and the hand of its president. And we have not even assumed to set this out by its tenor, but only in substance. We have declared on certain articles of agreement concluded and agreed upon by and between John Randel, Jr. of the first part and the Chesapeake and Delaware Canal Company of the second part, " the counterpart of which said articles of agree- ment, sealed with the corporate seal of the said the Chesapeake and Delaware Canal Company, and signed by the president thereof, the said John Randel, Jr. now brings into court, the date whereof is the same day and year aforesaid." The court overruled the objection and admitted the contract in evidence; whereupon an exception was prayed and granted. Plff.'s counsel offered in evidence an answer in chancery of the canal company to the bill of Clement, Blackstock & Co. They pro- duced the bill to lay a foundation for the admission of the answer. Objected to. Bayard. This answer is in another case and between other par- ties. It is not on oath, and does not fall within the rule of evidence which applies only to a statement of a party on oath. The answer of a corporation is like a bill the mere statement of counsel. 2 Stark 29; Roscoe 25; 1 Mad. ch. 212. RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 283 Clayton. This is the first time I have heard that an answer of a corporation was not a statement of the truth, but the suggestion of counsel. It avails' them as the answer of an individual on oath; is sufficient to dissolve an injunction when it denies the equity of the bill. The answer of a peer is not on oath, but on honor; yet it is evidence against him as if on oath. Its admissibility as evidence does not depend on its being sworn to, but as the admission of the party. A bill is evidence when the party is connected with it by proof. It is treated as the suggestion of counsel, unless the complain- ant's privity is shown, and then it is evidence against him as his ad- mission. So an answer is evidence as the admission of the party, whether sworn to or not. 4 Wash. Rep. 601 ; 2 Bay. R. 10 ; Angel & Ames 396; 1 Gilb.- 4; Peake 53; 1 Stark 285, 8; 1 Phil. Ev. 283; Cowp. 591; 2 Com. Dig. 307; 1 Vernon 117. " A bill filed against a corporation to discover writings. The defts. answer under their common seal, and so, not being sworn, will an- swer nothing in their own prejudice. Ordered that the clerk of the company and such principal members as the plff. shall think fit an- swer on oath, and that a master settle the oath." This explains the meaning of Mad. 213. Bayard. Notwithstanding the authority of Gilbert, it is now the established doctrine that the bill is the mere allegation of counsel, and not evidence. The answer of a corporation stands on the same ground. The members or officers cannot be supposed to have indi- vidual knowledge of all the matters to which their answer may neces- sarily extend; it does not therefore imply the certainty of an indi- vidual answer. It is this knowledge of the party, confirmed his oath, which makes such an answer evidence. At all events, an express privity of the company ought to be shown; that is, that they exam- ined and adopted the answer. Jones objects to the evidence on general principles; it is res inter alias acta and irrelevant to this cause. It is remarkable that an in- stance of the admission of such an answer cannot be shown. The case in Cowper depends on the relation of mother and child. The Court. The objection that it is res inter alias, &c. is not avail- able; the authorities on that subject are conclusive, for that applies to all the cases. An answer is evidence, not because it is on oath, thougli this may give it greater weight, but as an admission of the party. The answer of a peer is evidence against him, though not on oath. The honor of a peer and the seal of a corporation are substi- tutes for the oath. Their answer thus filed gives them all the bene- fits of an answer on oath, and should subject them to its liabilities. It is true that where the answer is under seal it may not be sufficient evidence in case of a bill for a discovery, for there is no obligation on them to make the discovery, and therefore a clerk or individual member is allowed to be sworn. This appears to be the meaning of Haddock; if it goes further we cannot give that authority our sanc- tion. Whether a bill is evidence is still a mooted question. Gil- bert and Starkie are for it, and Peake and Phillips are against it. The opinion of Phillips is founded on a case in 7 Term Reports, 3 which is little more than a dictum of Lord Kenyon. The answer was admitted and read. 284 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. The plff's counsel called on defts. to produce certain papers which they had been notified to produce. The defts. counsel offered the papers as evidence, but not merely for the inspection of the plff. The court said that if the plff. inspected the papers called for it would make them evidence; but not if he merely called for them without using or inspecting them. 1 Stark. Ev. 360; Roscoe 6. Certificates for work done prior to 30th July, 1825, produced and read: 1884, for $17,727 80 signed by B. Wright. " 16,583 09 ditto. " 6,865 78 ditto. " 8,496 58 signed by Henry Wright. No. 1, 28th May, 2, 23d June, 8, 3d July 4, 17th July, 5, 31st July, 6, 16th Aug. 7, 28th Aug. 8, 18th Sept. 9, 9th Oct. 10, 28d Oct. 11, 6th Nov. 12, 20th Nov. 18, 4th Dec. 14, 18th Dec. " 15, 1st Jan. 1825, 16, 15th Jan. " 17, 29th Jan. " 18, 12th Feb. " 19, 26th Feb. " 20, 12th Mar. " 21, lost, 22, 8th April, " 28, 23d April, " 24, 7th May, " 25, 21st May, " 26, 4th June, " 27, 18th June, " 28, 2d July, 29, 16th July, " 80, 80th July, " 81, 18th Aug. " 82, 27th Aug. " 83, 19th Sept. " 6,303 22 B. Wright. 9,924 51 ditto. 10,782 81 ditto. 8,883 65* ditto. 7,175 15 H. Wright. 6,397 28* ditto. 8,12781 ditto. 2,636 57 ditto. 2,543 80 ditto. 8,12882 B.Wright. 8,226 16* H. Wright. 3,778 83 ditto. 8,882 86* ditto. 2,948 51* ditto. Force stated equivalent to 450 men. 8,818 91* ditto. 415 men, 91 teams : equal to 688 men. 4,065 55 H. Wright. 90 teams. 5,643 73 4,781 75* B. Wright. 6,837 88 H. Wright. Force, 581 men, 141 teams, &c. 5,697 04 * H. Wright. 416 men, 139 teams, equal to 851 men. 7,821 88* H. Wright. 437 men, 174 teams. 8,598 02* H. Wright. 159 teams equal to 900 men. 5,852 00 H. Wright. 5,518 04 D. Livermore. 842 men, 92 teams. 4,549 60* H. Wright. 855 men, 117 teams, equals 600 men. 959 52* H. Wright. 7,818 22 D. Livermore. 385 men, 110 teams. 7,928 70 D. Livermore. 403 men, 109 teams. 2,259 02 B. Wright. EANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 285 No. 84, 24th Sept. 1825, 5,295 68 H.Wright. 838 men, 71 teams, equal to 551 men. Whole amount of work certified, $214,681 20|, to Sept. 24th, 1825. To 30th July, 1825, $183,764 58 ) Difference> |40>520 93. To 15th December, 224,291 51 ) The final certificate for work done was called for, produced and read. Final certificate, dated 15th December, 1825, $224,291 51. B. Wright. The plff. offered in evidence the lock contract declared on in the first count of the narr. The contract was executed by E. Wharton and E. M. Lewis, a committee on behalf of the company; but not under the seal of the company. He also offered proof of the execu- tion by the committee, of their authority, and of its acceptance and adoption by the company. He called on defts. to produce the au- thority of the committee under the notice to produce papers. The authority being produced, appeared to be a resolution of the board, but not under seal. The whole evidence was objected to and rejected; the instrument offered not being under seal. Deposition of William S. Eandel offered and objected to. As a foundation for the objection, defts. offered in evidence the depositions of Absolem Townsend, S. Dewit Bloodgood, Stephen Fondre and Win. M. Cushman, taken upon a commission which was issued for the purpose of impeaching the deposition of Wm. S. Eandel. Defts. depositions read by consent, saving all just exceptions. The commission on which Eandel's deposition was taken was issued to Absolem Townsend and S. Dewit Bloodgood of the state of Xew York, or either of them, commissioners for plff. and Ebenezer Baldwin, commissioner on the part of defts. The answers to all the original and most of the cross interrogatories were authenticated by the signature of all three commissioners ; the residue, and most of the documents referred to were signed only by Townsend and Blood- good, some by Townsend, Bloodgood, and Isaac Hamilton, who Jiad been substituted for Baldwin by agreement. The commissioners employed a clerk. It appeared from the defts. depositions that the commissioners commenced taking Eandel's deposition by propound- ing the interrogatories to him, and their clerk wrote down his an- swers. He was sick of a pulmonary consumption, and it soon became apparent that he could not bear the exertion of speaking so much. Baldwin, the defts/ commissioner, said that if this mode was continued Eandel would sink under it, and proposed to permit him to write down his answers at his leisure as his strength would permit. Townsend and Bloodgood insisted on going on as they had commenced whatever might be the consequences; but Baldwin ap- prehending they would be fatal to the deponent, refused to go on. Plff.'s commissioners then assented to the plan proposed by Baldwin. After the answers were written they were read over to Eandel, who was too weak to read them aloud, and he corrected them. In the course of the examination Baldwin became sick, was seized with mania a potu, and his friends carried him off. Hamilton was substi- tuted in his place. Bayard. The commission is personal to the commissioners, and 286 RANDEL, JUN. vs. OHES. & DEL. CANAL COMPANY. does not authorize them to employ a clerk to write down the answers; it is a power that cannot be delegated. Much depends on the man- ner of putting down the witnesses reply; and we can't guard this, at best, defective mode of taking evidence too strictly. Second. The witness was permitted to give depositions prepared and written by himself. This is entirely irregular and inadmissible especially in such a case as this. The witness here is the plaintiff's own brother; had been his sub-engineer; may have been at the time in the habit of constant intercourse with him. It is no answer to us that the commissioner named by us proposed this plan; he is not our agent but the agent of the court. Any irregularity in him is as fatal to the execution of the commission as the- irregularities of the other commissioners. He is like an arbitrator named by the party, but appointed by the court. The commissioner cannot receive a depo- sition prepared by the witness. Depositions will be suppressed if prepared by plaintiff's attorney, and not taken down by the commis- sioner from the witness. The execution of this commission obvi- ously took many days, and yet it does not appear that there was any adjournment. If the commissioners separate without an adjournment the commission is lost. This commission is a joint one to Townsend and Bloodgood, or either of them, for plaintiff, and Baldwin for de- fendants. Such a commission must be executed by all the commis- sioners or it will be suppressed. This was never returned by Bald- win; and only in part executed by him. Peters' C. C. Rep. 88; 3 Wash. C. C. Rep. 109; Bcame's orders in ch'y. 187; 1 Newland's Ch. Pr. 275; Ambler, 252; 15 Vesey 380; Gilbert's Forum 127, 9; Newlin Ch. Prac. 265; 3 Wash. Rep. 31; 1 do. 43, 144; 4 do. 187. Clayton. William S. Randel's deposition has been returned near three years; opened, published, and a copy actually taken by the defendants. During the life of the witness no objection was made to the execution of this commission, and no exceptions have been filed since. Now if we are to be bound here by the rules of chan- cery practice, let us have all of them. In that court no objection can be taken to depositions unless exceptions are filed to apprise the other side. And there is good reason for this rule. If, even after pub- lication in this case, exceptions had been filed objecting to the execu- tion of this commission, we might have taken out another and pro- cured this important testimony. But here they lie by with copies of our depositions in their possession; make no objection to theni until the principal witness is dead and the trial comes on, when they spring upon us the depositions of Cushman, a discarded clerk of Randel's, and others in order to destroy this testimony. Let us look a little at the execution of their own commission. It has been read reserving objections. The chief man employed in its execution is Henry D. Gilpin, the solicitor of the company, their agent and in their pay. This is fatal to their own commission and the foundation of their objections fails. 2 Mad. 413. I don't deny that a joint commission must be executed jointly. How is the case here? A commission to A and B for plaintiff, and to C for defendants. The three commissioners go on together and nearly complete the com- mission, when C gets drunk and goes off, and the defendants agree KANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 287 to substitute another person, who finishes the taking the deposition, if plaintiff's commissioners attend they may proceed ex parte if the defendants' commissioners wont come. 1 har. Chy. 32-1. The mode of taking the deposition was at the suggestion of the de- fendant's commissioner, and it was justified by the circumstances of the case. There can be no rule of evidence that will entirely pre- vent the taking of testimony, or require the violation of every prin- ciple of humanity, as would have been done by compelling the wit- ness here to deliver his testimony orally. The rule is that where the witness prepares his answer it will be suppressed unless he die, or it becomes otherwise impossible to get his testimony. In such case the rule is dispensed with, and it would be equally dispensed with if this was the only mode of procuring the testimony originally. In 15 Ves. the deposition was prepared by the agent of the party, and suppressed on this ground chiefly. That and Mad. also were before publication. As to the deposition being taken by a clerk. So are all depositions taken in New York where they practice on the Eng- lish rules. Defendants' commission impeaching this was executed by a clerk. To say that a clerk shall not be employed would be to pre- vent the execution of such commissions as this; for professional men would not do the labor; or if they would, the expense would pre- vent their being employed. The commissioners have certified the oath of the clerk; they certify also their own qualification, including the oath of the substituted commissioner. Though strict in relation to depositions, the courts have gone far to sustain them in case of the death of a witness. Where a witness died after his examination in chief, and before cross examination, the court refused to suppress his deposition. 2 Mad. 413; 2 Sch. & Lef. 158. Rogers. There was no rule in the Court of Common Pleas in re- lation to the manner of executing commissions to take depositions. This commission was issued out of that court from whence the cause has been transferred to this. If then, in the absence of any rule in that court, we are to refer ourselves to the English rules in chancery, we should take them all. Is this matter of objection according to these rules properly before this court? Should not the defendants have filed exceptions, or articles of impeachment? If they would im- peach a witness they must file articles before publication. So if they object to the mode of executing the commission, they were bound to file exceptions to give us notice. Irregularity in the taking of depo- sitions cannot be objected to at the trial. Even in the English courts the same strictness is not observed in relation to commissions exe- cuted out of England. The rules yield to the necessity of the case. There is no certain rule how far evidence may be taken from notes. 13 Ves. 511; 2 Atk. 190; 1 Eq. Ca. Ab. 102; 2 Coxe 205; Har. Ch'y.; Ami. 252. Ingersoll. The foundation of all their objections is the commis- sion issued 21st July, 1831, to H. D. Gilpin and others. If this foundation fails the objections fail. It was executed by their attor- ney and agent, and is not admissible. It is not before the court. But what is the paper attacked? A deposition returned, published, copied three years ago. The deposition of a man in consumption who lived twelve months or more after it was taken, but is now dead. 288 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. During all his life no exceptions filed. A commission was taken out it is true, to inquire into the mode of taking this deposition, but we knew not whether it was executed. It was kept by defendants in their pockets until yesterday. The witness was dying; he had to be indulged with writing out his answer. The absolute necessity of the case is sworn to by the commissioners. And we know that in this terrible disease the patient may have a sound mind and considerable bodily energy, without being able to talk much. What did Chief Justice Marshall say in the case of a ship which went out of her way to save a man's life and forfeited her insurance? That the law of hu- manity was above the law merchant or commercial law, and it should not work a forfeiture. To this law the rules of courts ought to yield. States a fact in relation to one of the cases cited by Mr. Bayard from Washington's Reports. He was of counsel in that case and well recollected that the Dutch brokers, after the interrogatories were read to them, had leave to go to their books for the prices of teas, and to make calculations on these statements. Frame, in reply. Are we too late? I defy the counsel on the other side to show a case in this State where exceptions have ever been filed in a court of law to depositions, or articles of impeach- ment exhibited. The practice of chancery in this respect does not and cannot apply to the courts of law. Were they surprised? No. A commission was issued in July, 1831, to investigate the manner of taking these depositions; our interrogatories then gave them no- tice of the matters we considered exceptionable; and they filed cross interrogatories. Jones, on the same side. Is our commission irregular? If H. D. Gilpin was our secretary and his appointment as a commissioner wrong, their own argument proves that it is too late to make the objection. Where are their ex- ceptions? But I distinguish between personal and other objections to commissioners. After joining in a commission without objection it is too late to object to the commissioner on personal grounds. I deny, however, that the fact of the commissioner being our secretary is a good objection. Second. There is no authority given to the commissioners in this commission to appoint a clerk. The appointment was void and his acts void. Delegatus non potest delegare. The taking of deposi- tions in England is under very restricted rules. There is a publica- tion day after all the testimony is closed. Eight days are allowed for excepting; the exceptions are referred to a master and heard. These are all preliminary to the trial; and can't apply to courts of law. They do not even apply to those courts of chancery with which I am acquainted. At law a deposition is a substitute for a witness at the bar; and entitled to no greater favour. All exceptions that can be taken to the one, may to the other. W. S. Randel was examined in October, 1829; he died in October, 1830. It was not until April, 1831, that his deposition was opened. How could we take exceptions to it before? Our commission which issued shortly after May term, 1831, was notice to the other side of our intention to attack this deposition. A witness is not allowed to speak from writ- RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 289 ten statements made by himself or another; can the court extend to this defective substitute for an oral examination a privilege not allow- ed to a witness at the bar? Will it dispense with a rule in the one case that would be enforced in the other? And the worst of all mem- oranda is a former deposition given by the same witness, as was the case here, for this deposition is little other than that given by the same witness in the case of Eandel vs. Wright. By the Court. The leaning of courts for years past has been in favor of the admissibility of evidence leaving its credibility and weight to the jury, unless there exists some flat and insuperable ob- jection to its competency. If there be matters either extrinsic or intrinsic to throw suspicion over it or detract from its weight, it is better that the jury should consider the testimony with the objections than entirely to exclude the former. Our courts have no settled rules on the subject of executing com- missions to take depositions; we have usually referred to the rules of chancery as a guide, so far as those rules could apply in common to both courts, and so far as they were applicable to the case in hand. But neither in this court nor in chancery are these rules of practice of such an unbending nature as not to yield to circumstances. The practice of taking depositions itself is a departure from the rules of the common law : it was introduced by necessity, and only adopted in cases where you cannot procure or compel the oral evidence of wit- nesses, either by reason of age, sickness, or being out of the jurisdic- tion of the courts. In such eases, ex necessitate, the next best kind of evidence has to be taken, or the whole lost. And if the whole system of evidence can be changed by necessity, and written evi- dence substituted for oral testimony, why may not the same necessity authorize the taking a deposition written out by the witness himself, when it is impossible for him to speak it, that the commissioners or their clerk may write it down? Take the case of a man deaf and dumb; such a man as Mr. Howell, of Kent, a gentleman of intelli- gence and great shrewdness, who is employed in the active concerns of life, and can read and write, but has never spoken; entirely deaf and dumb: suppose his testimony to be important in a cause, can there be any rule of evidence that would prevent a resort to the only means by which it can be procured? We think the good sense of the matter will dictate such an application of rules of evidence as shall effect and not defeat their object. Let testimony be guarded by proper rules; but when those rules would destroy that which they were designed to preserve and protect, bend or modify them so as to get the testimony. And if it comes subject to the objection of not having been taken with the usual checks, let it be considered with the objection, and let it detract from the weight or importance of the testimony. The general rule is that a witness shall not be permitted to bring his deposition ready prepared : like all general rules, it must have its exceptions. The subsequent death of a witness has even been con- sidered a good reason for reading depositions thus irregularly -taken. If ever there was a case in which a prepared deposition would be allowed, this is such a case. The witness was languishing in a dread- 37 290 HANDEL, JUN. vs. CUES 4 DEL. CANAL COMPANY. ful disease, which would certainly prove fatal, and whose violence would be greatly excited by conversation; indeed the depositions prove a case of absolute inability to speak to the extent required by the length of the answers; the attempt was made, and was only aban- doned when it became apparent that the witness would sink under it, and then at the urgent request of the defts.' commissioner. The deposition consists, moreover, of many and long mathematical calcu- lations, which could not possibly be made orally, or thus communi- cated from the witness to the commissioners. We think, also, that the other objections urged against this deposi- tion are not sufficient to authorize its suppression, and we direct gen- erally that it be read, reserving the right to exclude hereafter such portions of it as may appear improper. That part of the deposition which related to the lock contract was objected to and struck out. So of all those parts relating to, damage arising from deviations from the original line of the canal, and alter- ations in the form, slope and dimensions of the banks, towing paths, &c. The court doubted whether this was a covenant on the part of the company that the engineer should certify the damage arising from deviations. Unconnected with the other parts of the contract they would say it was not. The language is very different from that used in the inspection and prevention clauses. But there being no breach assigned on this deviation clause, the testimony relating to it was rejected without giving a positive construction to this part of the contract. The defts. objected to certain orders, verbal and written, given by Wright, the engineer, to Randel, in relation to the work, and proved by this deposition. The court said that any orders given by the agent of the company to Randel in relation to the work were evi- dence, and also any declarations made by him at the time of giving such orders in relation thereto, or to the work; but that any other declarations of this agent, or his letters to the company, were not evidence, not being a part of the res gesta, or connected immediately with the discharge of his duty as engineer. On this principle the deposition was purged of improper matter and a part admitted. A great many of the answers were entirely rejected as containing improper testimony, either wholly or to such an extent that it could not be disconnected from that part which might have been admissi- ble; some of the answers were corrected and partially admitted, and others entirely admitted. In this way the deposition, consisting of twelve hundred pages was argued, examined, and marked for admis- sion or rejection. In admitting the answer to the 68th interrogatory, the court took a distinction between deviations and orders of the engineer to the contractor to make the banks of particular materials, or in a particu- lar manner; such as scalping or mucking under the bank, ordering upland earth from a distance, &c. Randel covenanted to conform to such deviations from the line of the canal, and alterations in the form, slofle, &c. of the banks, &c. The canal company covenanted not to prevent him from using the due and best mode of executing the work. He was therefore to be allowed to use the best mode of executing as well that part of the work on which deviations should EANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 291 be made as the other parts which remained as originally located. In either case, if he was prevented by the default of the company, they were liable under the prevention covenant. The contract specifies that the banks shall be made of the adjoining excavation, and we have not been able to discover any clause which authorized the engi- neer to order the earth for this purpose to be brought from the dis- tant upland. The answer to the 113th interrogatory was objected to, because it did not appear that the directions mentioned in that answer by Henry Wright to Eandel, to pay Woodbridge certain sums of money for building a sluice, were within the scope of Wright's authority as first assistant engineer. The court admitted the evidence. We do not know certainly the extent of this engineer's authority. It is general in its nature, and may be inferred from facts, and the connexion of his acts with the business in which he was employed. It is proved here that Wright undertook the making of a sluice at the mouth of Extine's drain, and that he employed Wooc? bridge to work on it. It is further proved that the committee of works were present and inspected the work without objection. These are facts from which the jury may decide whether Wright's orders on Eandel to pay Woodbridge for the work were within the scope of his authority. Adam Diehl, sworn. The St. George's marshes were embanked in 1797 8. Section No. 3 of the canal line passes through Higgins' and Newbold's marsh. It was all mowable land, not obstructed by water; dry, except in time of freshets. It was all enclosed within the general embank- ment. The back water was discharged by means of four sluices, which were all but one near the mouth of St. George's creek. The sluices were sufficient to discharge the water, except in time of fresh- ets. After the canal was commenced this marsh was inundated. To get rid of the water they cut Extine's drain and put in it a sluice, which, instead of answering the purpose designed, let the water in from the river. It was put in the wrong place, and blowed out. The whole of the cranberry marshes were inundated in the fall of 1824, by water let in through Extine's drain. The canal could not have been cut through section 3 in the fall of 1824. It would have cost more to pump out the water than to cut the canal. Daniel Newbold, sworn. The marshes on section No. 3 were usually dry. The guard bank being thrown on the south side of the canal, cut off the usual vent through the sluices at the mouth of St. George's creek. Extine's drain was cut as 'a substitute but failed; it let in more water than it let out. An aqueduct under the canal was attempted, but this also failed. Eandel could not have excavated No. 3 in the fall of '24 at four times the cost under other circumstances, in consequence of its being inundated for want of a drain. The company did not get pos- session of the ground for sections one and two until late in 1825. Deposition of Jeremiah Brainard read, in part. The plff. offered in evidence certain depositions taken under a commission to Thomas Janvier and others. Objected to for want of notice of the taking out the commission. The plff. called Benjamin Janvier and proved that a copy of the interrogatories had been left at 292 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. the office of Mr. Bayard, but not handed to him personally. The court held this sufficient. In consequence of the death of Mrs. Robinson, the mother of one of the jurors, and of the approach of Christmas, the court adjourned over for one week. THURSDAY, December 26, 1833. The plff. gave in evidence an account rendered by the canal com- pany to Randel for work done, dated 10th January, 1826; also cer- tain contracts entered into between Randel and his sub-contractors, Timothy Grindley; Reybold and Clarke; Joseph Cragg; David John- son; Jared Leavenworth; Clarks, &c. ; Woodward; M'Martin and others; Tripp; Blackstock & Co.; Eaves & Co.; Caulk & Co.; Clark & Co.; Daily & Co.; Sexton & Co.; Brooman; Sutton; Fisher & Co.; &c., &c. Paul Beck, Jr., whose deposition was rejected at an earlier stage of the cause, now appeared and was sworn. Proves the seal of the company and the execution of the contract. Was formerly a director of the company; resigned. Question. Why did you resign ? I resigned because from the acts of the board toward Randel, it was manifest to me his ruin was inevitable; and I did not choose to be accessary to it. Question. What acts do you allude to? I specify the allowance on one occasion of $600 for work amounting to $3000: I speak, however, of the tendency of their whole conduct. I believed that the board was governed by Wright, and that he had determined to ruin Randel. Hugh Lee, sworn. Livennore, Dexter and myself measured the work on which Wright's final certificate was given; Wright meas- ured no part of it. Our mode of measurement was not calculated to produce a correct result. I did not know how to do it scientifi- cally, nor do I believe the others did. Our orders were to keep the company on the safe side. (Cross examined.) I carried the rod; not the level. The plff. having offered evidence to prove that Benjamin Wright, the engineer in chief, had caused false measurements to be made of the work done by plaintiff and had given false certificates of the amount of labour and materials, the objection was made to the admis- sion of such evidence, that by the express terms of the agreement declared on, the measurements and estimates and certificates of the engineer were final and conclusive, and that the plff. was now estopped to aver the fact that they were false. Clayton for the plff. argued that the second count of the declara- tion contained breaches assigned on the covenant " carefully to ex- amine and inspect the work," which breaches of course averred that the work was " not carefully examined and inspected ; " that the defts. had not traversed these breaches, but had pleaded only the general issue of non est factum and the plea of abandonment which was a special plea in bar, confessing and avoiding the matters alledged in these and all the other breaches in this count; and that the plff., of course, could not be estopped to show the very fact which the defts. by their own pleadings had admitted. Bayard for deits. said there was a plea traversing the breach that the work was not carefully examined and inspected. EANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 293 Clayton replied that the plea referred to was a plea to the fourth and sixth counts only, and that the defts. had, in pleading, entirely overlooked the second count in this particular. There being no plea traversing these breaches in the second count of the declaration, the evidence was admitted. The plff. further gave in evidence parts of the deposition of Elisha Putnam and Jeremiah Brainard; the other part having been ruled out. Also, the record of sundry proceedings in the nature of writs of ad quod damnum on the part of the company against sundry persons, the owners of land through which the canal passe'd, for the condem- nation of those lands. And he here closed his case. Mr. Bayard opened for the defendants by a general statement of the character and tendency of the testimony which would be offered. He then gave in evidence Eandel's estimate of the costs of the canal and a statement of the actual cost, the former being $788,464 28, and the latter $1,100,303 35: also the report of the engineers Tot- ten, Bernard, White, Wright, Eandel and Strickland, recommend- ing this route. The canal was commenced on the 15th April, 1824. He produced sundry receipts for payments to Rand el on account of work done, and compared them with the certificates, showing a balance due on the certificates, as admitted, of $794 05. Benjamin Wright's certificate that Eandel unreasonably neglected the work, dated 30th July, 1825. Minutes of the board of directors at a meeting held first August. Adjourned to the afternoon. Wright's communication was referred to a special committee to con- sult counsel. On the 5th of August this committee made a report. On the 12th of September Eandel, by letter, acknowledges that he received notice of the certificate of Wright on the 10th of September. And asks a copy of the specifications and reasons. On the 13th of September the board refused this request by a resolution communi- cated to Eandel. The defts. here offered in evidence a report of a committee of the board, on which this resolution was founded, set- ting forth the facts and reasoning on which the board went. The court rejected the report, unless the facts stated in it were proved aliunde. The statement of the committee is no evidence of those facts, and the reasoning of the committee on such assumed facts is inadmissible. This opinion was excepted to. On the 19th of Sep- tember the board again met. Eandel appeared and asked for time to prepare his defence. On the 30th of September the resolution de- claring the contract abandoned was adopted, and notice was given to Eandel on the first of October. The defts. offered this resolution in evidence, together with a preamble setting forth the facts and reasons on which it was founded. The court admitted the resolution and rejected the preamble, unless the facts were proved aliunde. Ex- ception taken. Defts.' counsel read an agreement between the canal company and Henry Wright as first assistant engineer, and Daniel Livermore as second assistant engineer; the former at $4 50, and the latter at $3 50 per day. 294 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. Judgment on bond of Randel and Sutton to the defts. for $15,000. Sundry credits endorsed. Proved proceedings in relation to Daniel Newbold's land, sections No. 1 and 2. The habere facias on which the company obtained possession was issued 21st April, 1825. Caleb Newbold, jr. sworn. Was a director of the company from 1823. Was a member of the committee of works. Verbal orders were frequently given to Mr. Randel, in the summer of 1824, to proceed with the work, which he did not comply with. He promised, but did not comply to the ex- tent promised. Has no recollection of Randel's proposing to put brush under the bank: the bank made of the light horse dung mud was good for nothing;, burnt up. Randel made a bank to Wilson's point, designed as a temporary embankment, for which he received a specific sum; it broke when the water was raised in it. No. 1 was not excavated to bottom when R. left it. The bottoms of sections 1, 2 and 3 had to go about four feet below low water. Don't see what advantage section 2 could have been to Randel as a drain for section 3. He must have had a sluice in at the lock. The water was finally pumped out of section 3 and discharged by St. George's creek. Thinks the excavation on section 5 could not have been done at 25 cents per yard. The revised prices were fairer than the original scale to both parties. (Cross-examined.) Is not an engineer. Can't say as to what precise extent Randel failed to obey the orders of the committee of works. He promised to put on and keep on 120 men; did not keep that number on. The resolutions of November, 1824, ordering him to go to bottom, &c. were in consequence of these failures. The defts.' counsel now offered in evidence a contract of Messrs. Reybold & Clark with the canal company for the excavation of sec- tions 2 and 3, a part of Randel's contract, to show that the work finally cost more than Randel's estimate, and more than he had con- tracted to do it for. Objected to. J. M. Clayton. The evidence is inadmissible, whether it be true or not that the canal cost more than Randel's estimate. He was not to be paid by that estimate in the aggregate, but by the cubic yard. If the amount of excavation exceeded the estimate, the price neces- sarily exceeded it. The report of the board shows that the banks sunk on section 3 to the depth of 100 feet, filling up and raising the chamber of the canal by the lateral pressure of the sinking tow path, so that this part of the canal was in fact excavated several times. For this additional labour Randel must have been paid as well as Reybold & Clarke, and the final cost of the canal by no means proves or dis- proves the issue here, the amount of Randel's damages. Again the increased cost of the work arose from deviation; it was in fact an- other route, a different canal from that on which the estimate of Randel was founded. Reybold & Clark stipulated also to do the work from one to two years earlier than Randel was bound to perform it in. If the time be materially shortened, we know that the price must be materially increased. J. A. Bayard. I agree that Randel was to be paid by the cubic HANDEL, ,JUN. vs. CUES. & DEL. CANAL COMPANY. 295 yard, and that the cost of the work would be increased by increasing the amount of excavation; but our object now is to prove that he could not have done it at the contract rate per yard, whether the quantity be more or less. If the cost of the work was increased by a different mode of execution, it is a matter proper to be considered. The evidence tends to show that the cost per cubic yard of the work done by Eeybold & Clark was more than Handel's estimate and con- tract, and that he did not sustain any damage by the abandonment of his contract. Clayton. The defts. may show that practical men could not do the work at the rate Eandel contracted to do it for; but they cannot show it by a contract with, others for a canal differently located, more expensively constructed, and to be completed in half the time. You might as well inquire the cost of the great wall of China to prove that Kandel could not have dug this canal at his contract rates. The Court. The contract of Keybold and Clark is offered in evi- dence with a view to show that Kandel could not have made money if he had been permitted to go on to the completion of his contract. The contract offered is confessedly in some respects in relation to a deviated or different work, and its stipulations are essentially differ- ent from the plaintiff's contract; how then can one prove, with any certainty, any thing in relation to the other? If the contract offered was for the same work it would not itself, in an action between other parties, be proper evidence to prove that such sum was or was not compensation for the work, nor how much could be lost or gained by it, but the parties themselves to such contract should be brought to testify as to the actual cost. Evidence rejected; and excepted to. On the same ground the court rejected contracts with Dexter, Hur- lock, Flannagan & Carr, and others. John K. Kane, sworn on the voire dire. Is a director of the canal company, but not a stockholder. Was a small stockholder until within a short time. Sold out his stock with a view to giving testimony 'n this cause. Objected to. Clayton. He is a party on the record. Bayard. He is not interested in the event of the suit; not even liable for costs, as he is not a member of the corporation. In truth he is not a party of record. The title of the suit and of the company is " The Chesapeake and Delaware Canal Company ; " i. e. the mem- bers of the company, the corporators, and not the officers of the cor- poration. A secretary of a company, who is not a stockholder, may be examined on the ground of no interest; so may a director, if he stand in the same disinterested condition. The court admitted him. The general rule which incapacitates a witness regards his interest in the event of the suit, or his liability for costs, rather than his character or connexion with the parties. Thus a trustee, if a party on the record though not interested in the suit, is no witness because he is liable for costs. So of a next friend, &c. Here the witness has no interest; he is not even a party to the record, and if he were, he would not in this case be liable, for he is not a member of the corporation. It is a new question, started per- haps for the first time in this State, and it can seldom occur any 296 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. where, for the directors in these companies are almost always stock- holders also. As at present advised we do not see that any rule of evidence prevents this director from giving testimony. Angel & Ames on corporations, 393. John K. Kane, sworn. Gives a history of the revision of prices, and of the certificate of negligence and resolution of abandonment. Was at the canal in the summer of 1825. It had been a subject of frequent complaint to Randel that he did the work irregularly and on parts most convenient and profitable. This was the cause of the order to go to bottom. After the company received Wright's certificate of the 30th July it was referred to a committee with directions to consult counsel. They did so, and reported on the fifth of September. The board then directed Randel to be notified of the certificate. About the twelfth they received a letter from Eandel asking a specification of charges. This letter was referred to a committee with directions to consult counsel. In pursuance of advice received from counsel the board notified Mr. Randel that they would proceed on the 19th Sep- tember to determine what they would do in relation to the certifi- cate, and that they would then inform him of the points to which he might direct his answer. On the nineteenth Randel attended. The chairman stated to him the objections of the board to his conduct as a contractor. He took notes; asked for time to prepare his reply; named thirty days, four weeks; the board fixed ten days. Randel again met them on the twenty-ninth and presented his defence in writing. They adjourned to the next day; and then adopted the resolution of abandonment. (Cross examined.) Mr. Smith came before the board on the nineteenth, and desired to read Randel's defence. He represented Randel as being much indisposed and unable to attend; But we did not think his appearance indicated such a state of ill-health. He was languid. Mr. Gilpin read a part of his defence for him. Nathan Boulden, sworn. Knew Wm. S. Randel. His habits were irregular. Saw him once lying in the office asleep or drunk with a quantity of bank notes in the crown of his hat. John Randel was sometimes dilatory in his payments; his credit not always good. Mr. Bayard read in evidence the original estimates of the cost of the canal; and also the award of Benjamin Wright on the revised schedule of prices. Daniel Livermore, sworn. Is an engineer; commenced in 1819; came to this canal in 1824. I measured a part; about one-half of section four, and all of section five that was embraced in Mr. Randel's contract. The semi-monthly statements of work done were made by counting the number of men and teams while at work. The check rolls would probably show a larger number; and the count might be a little below the number actually employed, for if any were acci- dentally absent they would be omitted. The counts, though perhaps a few short, were sufficiently accurate for general purposes. De- scribes at length his mode of measuring. Thinks it as accurate as any that could have been used. Had to be governed frequently by the eye, as it was impracticable to measure. RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 297 (Cross examined.) Boating would have been cheapest on sec- tion four, but it was not practicable to any extent. The slips would have prevented. Philip Reybold, sworn. We offered Carr eighteen cents per yard for doing section three, and calculate water as mud. We continued the work during winter. Costs something more, but men could be got. All the water on this section was thrown over the bank and not drained through sections one and two. Section two could not have been excavated at fifteen cents; our contract was twenty cents, and I think we lost money at it. The springs were abundant and it had to be bottomed under water. Sections one and three could not have been done at twelve and a half cents. Section two was of no use as a drain for section three. I did not think that Eandel's workmen managed well; they were too much in mud and water. (Cross examined.) Eeybold and Clark have still a small claim against the company for an aqueduct, some four or five thousand dol- lars. The material of the tow-path was brought three or four hun- dred yards, and not of the adjoining excavation. We were never paid for our work by the yard; it was impossible to estimate it thus. Henry Wright was not a dormant partner with us. Joseph Carr, sworn. Section five could not have been done for twenty-five cents per yard. (Cross examined.) We cleared about 27,000 dollars on our con- tract. William J. Hurlock, sworn. Worked on section fou/. It could not have been done at fourteen cents. Got twenty cents from two points, and sixteen cents from another point. Can't say whether I made 12,000 dollars by my contract; don't think I made fifteen thousand. Henry Cazier, sworn. The first season Randel let out the work to contractors; he afterwards worked it himself. His contractors were good. On some parts his workmen were dilatory. The plan was not a good one. Mr. Bayard read a letter from Randel to the canal company, stat- ing his claim at 54,000 dollars, dated January 2, 1826. He stated, however, that this did not cover his whole demand. The defendants closed their testimony. Plaintiff, in reply, called Hugh Lee, sworn. Has calculated the original surface levels of the canal. Describes at length his mode of measuring and calcu- lating. Livermore's plan is not correct. Has frequently heard Liv- ermore speak very disrespectfully of Randel whilst engaged in the measurement. Clayton for plff. offered in evidence two drafts for $1000 and $4000, respectively, drawn by John Randel in favour of Sutton, en- dorsed and discounted at the Philadelphia Bank; and protested on the ninth July. Objected to as irrelevant. J. M. Clayton. The evidence is in reply to Boulden and others who swore that Randel was dilatory in his payments, and neglected his work for want of means. We here show the reason. That he 38 298 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. was crippled in his resources by the negligence of the company; by their not paying him promptly. The certificates already in evidence show that on the second of July there was due Handel $5518, which was not paid, as the receipts show, until the eleventh. In the mean time these drafts were protested and Randel's credit injured. Doctor Sutton was called to prove the dishonour of these drafts. He admitted on the voire dire that he held certain obligations of Randel payable on the determination of this suit. The court, on in- specting the papers, held him a competent witness, saying that he was not interested in the event of the suit, as the obligations were payable at all events, whether the suit resulted one way or the other. The admissibility of the drafts finally turned on the question whether they were inland or foreign bills. If foreign the protest is proved by the notarial seal. Mr. Ingersoll said it is now settled by the supreme court that bills from one state to another were foreign bills. After the matter was considerably debated, it was found that these drafts were dated in Philadelphia, and made payable there ; the court therefore rejected them without actual proof of the protest. It appeared that after the endorsement these drafts had been in the hands of S. H. Hodson, cashier of the Bank of Smyrna; but the court said this did not change their character as inland bills. Dr. Sutton, sworn. Had a sub-contract from Randel on section 3 for 12 1-2 cents; about three-fifths of that section. Could make money at it. I was prevented by Wright from doing the work properly. Robert Keddy, sworn. Livermore measured my work of eight rods. I was dissatisfied, and complained to Wright. We agreed that it should be re-meas- ured by J. Fairlamb. He made it 4040 yards more than Livermore. Dr. Gemmel, sworn. Question. Did you at any time hear Benjamin Wright give Henry Wright orders to make false certificates of Randel's work? State precisely what the orders were. Objected to and argued at length. The court permitted the question to be put. Here is a controversy between Livermore and Lee, two engineers, as to the correctness of the measurement of Randel's work. He proposes to prove that it was intentionally wrong; wrong by the direction of the company, given by their chief engineer to his subordinates. The testimony is not admissible to show malice in the engineer; his malice or fraud is no ground of damage as against the company ; but it is admitted to show the incorrectness of the measurements, the falsehood of the certifi- cates, and the consequent damage to the plff. Witness. I did hear Benjamin Wright give directions to Henry Wright to make short and false estimates and certificates of Randel's work. He said he would ruin Randel's credit and break him up. Question. Did Henry Wright or Benjamin Wright at the same time say that if Randel was treated as other contractors, or permitted to go on, he would make over $200,000 by his contract? Objected to and rejected by the court as a mere opinion of Wright, not on oath. Witness. I also saw a letter from a director of the company to H. Wright, approving of his conduct in relation to Randel, and request- RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 299 ing him to persevere in it. Wright showed me the letter, and imme- diately burned it. He said it was from Mr. - , and it was signed , and with two initials, I think . Have never seen him write, and don't know positively that it was his hand writing. Question. State precisely the contents of that letter. Objected to, and rejected by the court. Afterwards, the director being present, the witness was, by consent, permitted to state the contents of the letter. Witness. He advised Henry Wright to continue the course he had been pursuing towards Randel, and he would eventually break him up. The letter was short and sweet. I do not know Mr. - 's Christian name. The signature was individual, and not as secretary or director. I heard Philip Reybold and Henry Wright talking about taking away Randel's contract and giving it to Reybold, four or five weeks before it was abandoned. The Director, sworn. I never wrote the letter spoken of by Dr. Gemmel, or any such letter. I never by word or writing authorized any one to believe that I wished any thing done towards Mr. Randel that was not strictly just and legal. I never wrote confidentially to H. Wright during Randel's contract. I wrote him one or two letters afterwards of friendly caution in relation to his own habits and the estimates for Clement. I swear positively that I never wrote the letter; because, had I been capable of such an outrage of every prin- ciple of honesty and fairness, it must have made an impression on my mind that time could not erase. I neither had motive nor feeling towards Mr. Randel which could have prompted such an act of in- justice. John Kizier, sworn. Was acquainted with the cutting on No. 5, the deep cut. The sub-contractors made money at 25 cents. De- scribes the manner of boating the earth from section 5 to section 4. The excavation, boating and depositing on the tow path cost about 15 cents. Plff. gave in evidence a resolution of the board dated 23d Septem- ber, 1825, appointing Messrs. Gillaspie and Jones to go to the canal and ascertain the state of the work. He then offered a paper in the handwriting of Dr. Gillaspie, and signed by him, purporting to be notes of their examination, or a rough draft of a report. Gillaspie is dead. Bayard. This is a private memorandum of Dr. Gillaspie, not communicated to his colleague, nor to the board. Clayton. They are the notes of the committee; a journal of their joint proceedings. A report was not made to the board, because they abandoned the contract without waiting for a report. They ap- pointed a committee to test the truth of Wright's certificate of negli- gence, and decided without hearing the evidence. Ingersoll. Admitting that this is the individual act of Doctor Gil- laspie, it is an act in the discharge of his duty as agent of the com- pany, acting under a resolution of the board. The notes were made in the capacity of committee-man, a part of the res jesta, and are evi- dence. 1 Stark. Ev. 52. Bayard. The duty was assigned to two. The separate notes of 300 RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. one are not in conformity with the authority; and if it appeared that they both concurred in them, as they were never communicated to the company they cannot affect it. The fact that no report was ever made is conclusive. The testimony was rejected. John Button, sworn. Counted Handel's force on the 13th July, 1825. On section No. 3 there was an average force of 267 men, 50 horses; on No. 5, 301 men, 186 horses. Plff. produced a model of the monument erected by the company at Summit Bridge, and proved the inscriptions, which were as fol- lows : South front" This tablet is erected by the proprietors of the Chesapeake and Delaware canal, to commemorate its completion, on the 17th of October, 1829, and to stand as a testimonial of their grati- tude to James C. Fisher, president, and Thomas P. Cope, John K. Kane, Robert M. Lewis. Isaac C. Jones, Robert Wharton, Thomas Fassit, John Hemphill, Ambrose White, and William Platt, directors of the company. Secretary and treasurer, Henry D. Gilpin; engi- neer in chief, Benjamin Wright; engineer resident, Daniel Liver- more; superintendent, Caleb Newbold, jun." East end. " The construction of this canal was begun on the 15th of April, 1824, by Sila^ E. Weir, the chairman of the first committee of works, whose zealous and efficient services to the company termi- nated, with his life, on the 14th day of May, 1828. He was suc- ceeded by Robert M. Lewis, under whose active supervision the work was continued and finished. In its progress though the eastern level large sections of embankment sunk 100 feet below the adjoin- ing surface, and the bottom of the excavation rose 40 feet above its natural position. On the deep cut more than 375,000 cubic yards of earth slipped from the regulated slopes of the sides, and passed into the chamber of the canal. These and many other difficulties having been overcome, the water was introduced on the 4th of July, 1829, and the final accomplishment of this great national work was cele- brated on the 17th of October of the same year, at which time the navigation was opened." West end. " Length of canal, 13f miles. Width at water line, 66 feet. Width at bottom, 36 feet. Depth of water, 10 feet. Depth of excavation at summit, 76 1-2 feet. Extreme width of section at sur- face, 366 feet. Excavation from deep cut, 3,500,000 cubic yards. Length of locks, 100 feet. Width of locks, 22 feet. Length of summit bridge, 247 feet. Height above bottom of canal, 90 feet. Total cost, 2,250,000 dollars, of which 450,000 was paid by the United States, $100,000 by the state of Pennsylvania, $50,000 by the state of Maryland, $25,000 by the state of Delaware, and the resi- due by citizens of Pennsylvania, Maryland and Delaware." Plff. also produced models of the tide lock, with guard gates, &c. and of the hopper boats used in boating the earth. The depositions of Townsend and Dewit were offered to sustain the character of Wm. S. Randel, and admitted, and the deposition of Josiah F. Clement was rejected. George W. Smith, Esq. sworn. Gives a history of the proceed- RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 301 ings of the board previous to the declaration of abandonment. I called as the friend of Mr. Eandel, and requested to read his defence and comment on it. They refused. They also refused to permit me to read it without comment. I stated that Eandel was ill, had been cupped on his head and neck; that he was then attacked with coma. He was unable to appear and make his defence. They still refused to let me appear for him. I remarked that they treated him with neither justice nor common decency. Mr. - came round and said in a violent manner, you will please remember that remark, Mr. Smith! I told him I should remember it, and that I held myself responsible to him for it. He said, no, sir, not to me, but the board. I replied, to him or any member of the board. I heard no more of it. Be- fore it was known that Wright had given the certificate, I heard vari- ous rumors at the canal that the contract was about to be taken from Eandel; there was quite a riot, and the work suffered much hin- drance in consequence of these rumors. I called on some of the members of the board and represented this state of things, and from conversations with them I became satisfied the rumors were un- founded. This was after the certificate was given. I returned to the canal and endeavored to quiet the apprehensions of the workmen and others, and I unfortunately subjected Mr. Sutton to loss. I am confident that John Eandel did not know of the certificate until it was officially communicated to him. Mr. Smith was asked if he did not think his mind was under some degree of bias from the influence of ardent feelings in favor of his friend the plaintiff. Answer. If a thorough abhorrence of the unjust and cruel conduct of this company towards John Eandel, and a perfect conviction of his wrongs, be a bias, I have it. As his friend I have labored for years, and shall still labor, to bring this company to justice. I ~3.esire, and Eandel need want, nothing more. I have devoted much of my life to the study of engineering, and in visiting the principal canals in this country and in Europe. I am not a practical engineer, but have studied the subject for my pleasure; it is my hobby. Describes the construction of the Caledonian canal, the use of hopper boats and dams, the banks in Holland to keep off the water of the Zuyder Zee. They are made of a light, spongy substance, slightly mixed with earth, similar to our horse dung mud, laid upon brush. Sand will not do. A mountain of sand would not keep out water. Has exam- ined the horse dung mud of the St. George's marsh; it will make a bank, and a good bank; it is the proper material. The height of the guard banks as increased by Wright has been the subject of much ridicule among scientific men; it is perfectly absurd. It was de- stroyed by its own weight. The 01 'ginal height would have kept the water in the canal. The testimony on both sides closed January 3d, 1834. The case was argued at great length before the jury by Read, jr., Rogers, Ingersoll and Clayton, for the plff. and by Bayard and Jones, for the defts. In the course of the argument the court was requested to charge the jury on a great number of points, among whicn the most im- portant were the following: 302 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. On the part of the plaintiff: First. That there are five covenants on which the plff. has sued; the covenant to pay for work as certified by the engineer of the com- pany for the time being; that the works during their progress should be carefully examined and inspected; that the number of cubic yards of excavation and embankment should be faithfully estimated by a competent engineer; that if by the default of the company Randel should be prevented from pursuing the due and best mode of exe- cuting his contract in any particular, or should be prevented from entering upon or flooding lands, the engineer of the company should certify the damage: and, that the time allowed to Randel to do the work should not be less than four years from the first May, 1824. Second. That the defts. by their demurrer to the seventh count have confessed that they did not allow R&ndel four years to do the work, and the jury are bound to assess the damages for the breach of that covenant whether he did or did not unreasonably neglect the work because the defts, have not pleaded the abandonment to that count. Third. That the true standard of damages to be recovered on that seventh count is not the mere profit that Randel would have made on the whole contract had he been allowed to finish it; but the loss he incurred by being illegally driven from it: that in order to ascer- tain the loss the jury must estimate the profit on the work remain- in y to be done after the first October, 1825, and add to it all the loss fairly arising from the illegal dismissal of Randel; and particularly his loss of time, the derangement of his affairs and business, the ten per cent, on the $224,000, earned by him before the first of Octo- ber, 1825, and ten per cent, on the work remaining to be done, and the injury to his professional reputation if any necessarily occurred from the manner of his dismissal. Fourth. That it stands confessed of record by the defts. plea of abandonment to the five first breaches in the second count, and to the fourth and eighth breaches in the third count; first, that the works during their progress were not carefully examined and in- spected; second, that neither Benjamin Wright nor any other com- petent engineer selected by the company did estimate the number of cubic yards of excavation and embankment; and that the jury are bound to consider these confessions on the trial of the replication of waiver to the plea of abandonment. Third, that the defts. have con- fessed, by this plea, all the material allegations in the third, fourth and fifth breaches of the second count, and the fourth and eighth breaches of the third count, and especially the following: that Ran- del " was from default of the company, on divers days and times be- tween the 26th of March, 1824, and the 20th of October, 1825, pre- vented from pursuing the due and best mode of executing his con- tract, and that the pecuniary damage sustained by him in consequence thereof, was the sum of $256,000; and that the said pecuniary dam- age was not certified by the engineer of the company for the time then being: " that from the default of the company the plaintiff was " on or about the third day of October, 1825, prevented from enter- ing upon lands" &c. ; that the pecuniary damage was $256,000, and that said damage was not certified by the engineer although he RANDEL, JUN. vs. CUES. & DEL. CANAL COMPANY. 303 well knew the premises: that Randel was prevented from flooding lands, &c., and that the damage amounted to $256,000, which was not certified, &c. : that the said company on the 19th of October, 3825, did prevent Randel from entering upon lands which were neces- sary to be occupied by him for the use of the work, and so took the time to be less than four years, &c.: the pecuniary damage re- sulting from which default was the sum of $256,000, which was not certified, &c. : and that the company did, on the 19th October, 1825, dispose of the contract to Clement, Blackstock and Vanslyke, and thus obstructed Randel in the performance of the work and pre- vented him from pursuing the due and best mode of executing it; that the damage arising from this prevention was $256,000, which the engineer of the company did not certify, e satisfies you that the company have waived this power of aban- donment. If you are of opinion on the law and evidence that the defts. have not waived this power, there is of course an end to this part of the case, and you can assess no damages on this covenant, nor indeed upon any of the covenants in the contract, except the cove- nant to pay for work done. If, however, you should be of opinion that the company did so waive their power to declare the contract abandoned, you are then to inquire whether these covenants to inspect the work and estimate the amount have been broken; and, if they have, what damage resulted to the plff. from such violation of the covenant. And here we are required by the plff.'s counsel to charge you that the state of the pleadings implies certain admissions by the defts. that these covenants have been broken. You observe, gentlemen, that the plff. alledges in his breach that the works were not inspected by Wright, nor by any other competent engineer ap- pointed by the company, and that neither Wright nor any other com- petent engineer appointed, &c. did estimate the number of cubic yards of excavation and embankment. The defts. instead of denying these allegations, rest their defence on the plea of "abandonment;" of course, if that plea fails them, as it will if the jury sustain the " waiver," the pleadings on this part of the case do admit that the company have not caused the works to be inspected, nor the amount thereof to be estimated; and the only question that remains for you to consider is, whether this failure on the part of the company was injurious to Mr. Eandel, and what amount of damage he sustained from such injury. For that damage you must refer yourselves to the proof which the plff. has laid before you, as it is incumbent on him to satisfy you on that subject by proof of the amount of his loss or of facts from which you may fairly estimate the amount. But you are not confined on this breach to the mere value of excavation and embankment proved to have been done, nor are the certificates of 40 314 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. Benjamin Wright, Henry Wright and Daniel Livermore conclusive of the amount of work done. To give these certificates such an opera- tion would be to contradict the record admissions of the defts. and to set up certificates not pleaded as conclusive evidence of estimates which they admit were not made. By another part of the contract it was provided that payments should be made to Mr. Randel semi- monthly for his work, according to these certificates and estimates ; if therefore estimates were withheld, it was a wrong to Mr. Randel, and the company are liable to him for all the injurious consequences necessarily resulting from their not inspecting and estimating the work according to the terms of the contract; and if one of those con- sequences was that Bandel was not paid for all the work he did semi- monthly, the defts. are liable for the amount of that work, and for the non-payment of the value at the time it was done;, and when it ought to have been estimated, and certified, and paid. (4th, 5th and 6th counts.) There are three other counts assign- ing breaches on this covenant which it is not necessary for the court particularly to explain; as, if found for the plff., any damage result- ing from them would fall also within the breaches already considered ; and if found for the defts. they would not diminish the amount of that damage. The particular issues on these counts, as distinct from the two breaches before mentioned, have not been presented in the argument as essentially varying the case ; and a further examination of them might distract the attention of the jury, without leading to any beneficial result. Indeed the plff.'s counsel who last addressed the jury distinctly abandoned these three counts, and presented no claim for damages as resulting from them. The jury may therefore find for the defts. on the 4th, 5th and 6th counts. Fourth. The next covenant declared on is what has been called the " prevention clause," which is a contract of the company, that in case Randel, from their default in any particular, should be prevented from pursuing the due and best mode of executing his contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof should be certified b}' their engineer for the time being, and that on his certificate they would pay Randel such reasonable compensation and allowance as should be fixed by the certificate. The plff. has assigned five breaches of this covenant in different forms, alledging, in substance, that, he was prevented by the default of the company from pursuing the due and best mode of executing his contract; that he was prevented from entering upon lands for the purpose of executing his contract; that he was prevented from flood- ing lands ; that the company disposed of his contract to other persons, and thus prevented him from executing it in the due and best manner ; that he sustained great pecuniary damage from these defaults of the company; and that their engineer has not certified the damage, although he well knew the premises and was aware of the extent of the damage. To all of these breaches the defts. have pleaded the '* abandonment " simply, and the plff. replied the "waiver," as has before been explained to you at large. The issue, therefore, on all the breaches of the prevention clause is, whether the defts. have waived the power to declare the contract abandoned on Wright's EANDEL, JUN. rs. CUES. & DEL. CANAL COMPANY. 315 certificates of the 30th of July, 1825. If the jury are of opinion that the waiver has not been made out, there is an end, of course, to all claim for damages on this prevention covenant; but if you should think otherwise, you will then give the plft'. such amount of damage as you are satisfied by the evidence he has sustained by reason of the acts stated in these breaches, and which the pleadings admit. We have been further requested by the plff/s counsel to charge you that these pleadings admit the amount of damage stated in the breaches to have resulted from these defaults of the company, but we decline the expression of such an opinion. In our view the law is otherwise. The plea of abandonment, being a plea of confession and avoidance, necessarily admits all the material and traversable facts averred in the breach; it admits the prevention, the subsequent disposition of the contract, that damage to Eandel was the consequence, and that the engineer did not certify the damage; but it admits no amount of damage, and the jury must resort to the evidence in the cause for the foundation of any other than nominal damages. .For actual damages, therefore, and the amount thereof, we refer the jury to the proof, to decide according to their best judgment on all the facts that have been laid before them. There is, however, one matter of evidence con- nected with this subject that requires a passing remark. The plff. has offered some testimony to show that the possession of section No. 2, which he alledges would have been useful to him as a drain for section 3, was withheld from him by the default of the company. It appears that before the canal was commenced, the defts. had made a contract with Daniel Newbold, the owner of the land through which section 2 ran, for the purchase of that land. A dispute arose between them in relation to their contract, which was finally settled by arbitration; but, whatever may have been the merits of that con- troversy, it appears that the company did not get actual possession of the land until it was obtained under a writ of habere facias posses- sionem, issued out of the supreme court of this county, in April 1825. The jury must judge whether Mr. Randel suffered damage, or was obstructed in the prosecution of his work by the failure of the com- pany to give him earlier possession of section 2, and remunerate him by such amount of compensation as the evidence enables them to as- certain. We refer to this matter only because we have been requested to charge that the covenant of Daniel ISTewbold of the 4th August, 1823, did not entitle the defts. to possession of this land, and we think it did not. It was a covenant to convey his land on condition that the company should execute and deliver to him an obligation under their corporate seal for the payment of one dollar per acre for the land, and also on the condition that the canal should pass through it. At all events, the issuing of the writ of habere facias shows that they did not get actual possession before that time, which they were bound to do if such possession was necessary or useful to Mr. Eandel. Fifth. The remaining clause of the contract for an alledged viola- tion of which the plff. complains is a covenant on the part of the canal companv to allow him four years from the date of his contract to complete the canal, with a qualification, which you understand, that under circumstances they might in a particular manner put an end to the contract at an earlier day for negligence on his part. 316 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. The breaches assigned on this covenant are, that the company un- lawfully put an end to the contract, and prevented Mr. Randel from proceeding, and thus deprived him of the time which by the contract he was to be allowed for executing the work. The plea to these breaches is the " abandonment," and the replication, " waiver." The issue therefore is the same as explained under the! last head; and the question whether any damage is to be assessed on this issue or not depends, in the first instance, on the decision of the jury on the waiver. If the jury sustain the waiver, the breach is proved ; that is, it establishes the fact that the company illegally deprived Mr. Randel of his contract and stopt his work contrary to their covenant to allow him four years to complete the canal. The question will then be, what damage has the plff. sustained by reason of this act of the com- pany? The only guide that the court can give you on this subject is the legal rule, that whatever loss or damage naturally and immedi- ately results from the wrong complained of, the wrong-doer is bound to compensate. What was the loss which Mr. Randel incurred in consequence of being illegally deprived of his contract ? He lost the ten per cent, on the $224,291 51, the amount of work done by him before the first October, 1825, or such other amount of work as you may be satisfied he had done before that time ; he lost any profit that the jury may be of opinion he could have made on the work remain- ing to be done after the first of October, 1825, which profit must be ascertained by estimating the cost of the work and deducting it from the sum to be allowed to Randel therefor by his contract with the company ; that is, by the revised schedule of prices, together with the ten per cent, for contingencies. The jury should add this ten per cent, to the revised price, and compare it with what they believe would have been the actual cost of the work; and the result, if in favor of the plff. will show the amount of profit he could have made on the work remaining to be done. If, on the other hand, the jury are of opinion, from such comparison of the cost and price, that the plff. had he been permitted to proceed in his work would not have realized from it any profit, the damages on account of the work remaining to be done will be merely nominal. These are specifica- tions which the court feel at liberty to make ; and we say to you, generally, that any loss fairly resulting to Mr. Randel from such illegal dismission should be considered in ascertaining the amount of damages. But such damage must be the immediate and natural result of the wrong, and not any remote or fancied injury that might be referred to that wrong as a probable cause. In estimating the work remaining to bo done after the first of Octo- ber, 1825, the jury will bear in mind that payment for this, as indeed for all the work, was to be made bv the cubic yard; and if the amount of excavation was increased by slips from the regulated slopes of the canal, or by earth pressed up in the chamber of the ca- nal by the sinking of the canal banks, the contractor must have been paid for the removal of this accumulated earth, as for all other exca- vation, by the cubic yard. The average price per cubic yard of the whole of section No. 5 is not to exceed 25 cents. One part of this section was let to Dexter, and the residue of it was let to Randel. Whatever may be ascertain- HANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 317 ed by you, on a proper calculation, to be fair average of this part of the section, you ought to allow him. You have seen the map of this canal; you have, seen how this part of section 5 is denned and protracted. You will compare its greater elevation, or rather, per- haps its greater depth, when contrasted with the residue of that sec- tion. It is declared by the contract, after making a graduation of prices in proportion to the depth of cutting, that it is understood that this graduation of prices is made expressly to conform to the differ- ence in labor, and to be so estimated when done as that the whole excavation of this section shall not exceed 25 cents per cubic yard for the whole section; not for that part only included in the plff/s con- tract, but expressly for the whole section. Whatever, then, may be the fair average price of this part of section 5, you ought to allow the plff., although it may exceed 25 cents per cubic yard on that part of the section, being careful at the same time not to average the whole section higher than 25 cents per cubic yard. We think any other construction of the contract would be absurd. The parties graduate the prices expressly to conform to the difference in labor, and if Ran- del has to go much deeper upon his part of section 5 than is necessa- ry on the part not let to him, justice and the spirit and terms of the contract require that he should receive a greater average in propor- tion to the difference in labor. There remains, gentlemen, one other breach on this covenant, be- ing the breach assigned in the seventh count of the declaration, and upon which the plff. has, as you have been informed, obtained a judg- ment and on order in the nature of a writ of inquiry for you to assess the damage. In relation to this part of the case, the matter of aban- donment and waiver is not a subject of consideration. The effect of a judgment by default, or on demurrer, is to admit that the plff. has a cause of action; it establishes his right to recover: and where the contract declared on is for a sum certain, as in debt, and the declara- tion either ascertains the amount or sets out an instrument from which the amount can be certainly ascertained by calculation, the judgment is also conclusive as to the amount. Where the matter sued for sounds in damages, or is in its nature uncertain, the judg- ment, though it establishes no amount of damages, fixes the right to recover. In! either case no proof need be offered, or would be allowed, of the cause of action, nor will the deft, be permitted to set up any defence denying the cause of action. Thus in an action on a contract the deft, will not be allowed even in miti- gation of damages, to give evidence of fraud, or of any other matter which would render the contract void. (East India Company vs. Glover, Strange, 612. 1 Bos. & Pul. 363. 2 Saund. PL & Ev. 103. 2 Strange 1149. Bevis vs. Lindsell Doug. 315, n. 2.) The judgment on the seventh count in this case admits that the canal company, contrary to their covenant, did take! the time within which it should be incumbent on Mr. Randel to perform his contract to be less than four years from the date of that contract. Is it competent then for the defts, to set up, contrary to this admission, that they legally deprived him of his contract within the four years, and thus did not violate their contract, which is, in effect, the plea of abandonment? According to principles before stated and well esta- 318 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. blished, it is not competent for them to make such a defence. And the matter of abandonment and waiver being out of the way in rela- tion to this count, whatever may be your opinion on that subject, it will be your duty to assess, on this writ of inquiry, such amount of damages as the proof satisfies you the plff. has sustained by reason of this breach of covenant, whether he did in fact unreasonably neglect the work or not. The measure of those damages, and the rule which is to govern you in assessing them, are the same as has been already stated to you in explaining the last breach on this covenant. The plff. will also be entitled to damages, by way of increase, for the de- tention of any sums that the jury may be of opinion he ought to have received from the'defts., either for work done or injury and loss sus- tained; and a suitable rule for increasing such damages would be the rate of interest from the time such sums were due and ought to have been paid. The jury will exercise a sound discretion on this subject. " In the course of the argument of this cause the rules and princi- ples by which this contract is to be construed, have been stated so variously that it is difficult for us to know, as to some of the points, upon what grounds the defence is intended to rest. The counsel who opened this case, on the part of the defendants, took up the position that the plff. was dismissed from the contract, not because he had not a sufficient force on the work to complete it within the time limited by his contract, but because he would not put this force at such place as the company directed; thus contending that the company had a right to order the plff. to work where and as they should direct. But in the argument to you upon the evidence it has been contended that under the contract Randel had the right to execute the work as he saw best; that any orders given him by the company to execute the work according to their directions were illegal, not binding on Randel, and if he obeyed such orders it was a thing assented to by himself; that if any damage or loss was sustained by him in conse- quence of those orders it was his own folly; and that in this action, which is founded on the contract, he could not recover any thing for the injury thus sustained. Another of the defendant's counsel repu- diates this construction ; and contends that the cotemporaneous expo- sition given by the parties to this contract, as far as it has been exe- cuted, is that which binds them ; and whether it be the true or false construction, as it was communis error both are bound by it. In this diversity of construction it is difficult for us to present to you the precise view taken by both sides of this contract. All you and the court can do, however, is to look to the contract itself, and ga- ther from that what its stipulations are, and when these are ascer- tained they must govern us. The plff. undertook to perform a great work for the defendants. He had the right to perform, generally, this work as might seem best to him, without any control to be exer- cised, over him, either by the company or their engineers ; he had the right to begin the work where he pleased and to prosecute the work as he pleased, (with the exception of the third section) so that he did not unreasonably neglect to prosecute it; and the company stipulated that if in any particular by their default he should be pre- vented from using the due and best mode of prosecuting his contract, their engineer should certify the damage and they would pay it. RANDEL, JUN. vs. CUES. & DEL. CANAL COJIPAXY. 319 This precludes all idea of their right to interfere with him in the progress of the work. A'ot a word in the contract conveys such an idea; and he had a right to place his force oil any part of the canal which he had contracted to make, and the company had no right to order him to do otherwise. They could not say to him put such a force here or there; and if they did he was not bound to obey. It is true that if the plff. voluntarily adopted and executed these or- ders he has no right to complain, nor do they afford any ground of damage. We have excepted the third section from these general remarks, and it becomes necessary that we should show you in what respects his right to work as he pleased on this section differed from his rights when working upon other parts of the canal. These are the provisions of the contract in respect to this section: " Price per cubic yard twelve and a half cents. For all earth exca- vated and placed in bank as required, to within two feet of bottom, eight cents, and when any half mile is completed the balance is to be paid. The contractor shall at all times excavate to the bottom, if in the opinion of the committee of works it can be done with good economy." This expression, shall at all times go to bottom when in the opinion of the committee of works it can be done with good economy, does not mean that the committee of works shall have power to compel Eandel to complete this section in a day or a week or any limited time short of the four years, which the contract gave him to complete it in; nor did it give them the power to direct what number of men he should employ upon it, nor with what machines or means he should execute the work, nor at what times or periods he should work upon it. These were all discretionary with the plff. But as we understand this clause it means this: that whenever Ran- del chose to work on this section of the canal, the committee of work, if they deemed that it could be done with good economy, might direct him to go to bottom. But no order of this description accompanied by a resolution that he should receive no pay till he did go to bottom was binding on him; for the contract expressly stipu- lates that when he shall have gone to within two feet of bottom he shall receive eight cents per cubic yard, and when a half mile shall be excavated to bottom the remaining four and a half cents is to be paid. Perhaps when the parties made this contract they had it in contemplation that when any half mile should be excavated to with- in two feet of bottom then the committee of works might direct him to finish that half mile, without proceeding further until that was accomplished. But they had no right to direct what force he should employ upon it. We have been required by both sides to give you our opinion on this clause of the contract. " Both banks (that is the towing path and the bank on the opposite side of the canal) shall be constructed of the best earth which the adjoining excavation will give, in a workman-like manner." It is contended on the one side that Ran- del was not obliged by his contract to go beyond the adjoining exca- vation for the material of which the banks were to be constructed; the adjoining excavation being the canal on the one side and the back drains upon the other. On the other hand it is contended that this 320 RANDEL, JUN. vs. CHES. & DEL. L'ANAL COMPANY. comes within the scope and meaning of the clause in relation to alte- rations and deviations. That clause provides that during the pro- gress of the work the plff. will at all times conform to such devia- tions from the present line of the canal, and to such alterations in the form, slope, and dimensions of the banks, towing paths, or any other of the said works as the company or their engineer shall direct. These other works were the harbor, back-drains, &c. in the form, slope or dimensions of any of these alterations might be directed, and the plff. was bound to conform; and damages for any such deviations or alterations cannot be recovered in this action. But it is no where stipulated that the material of-' which the banks or other works were to be constructed may be changed. The plff. had a right to use the mud from the adjoining excavation to construct the banks, and if he made them in a workmanlike manner, and as well as the material provided would allow, he did every thing that his contract required of him/' We have been further requested by the defts. counsel to say to you, as we do, that the stipulation entered into in the sub-contracts of the plff. with his sub-contractors by which he directed them to obey the orders of the engineer-in-chief of the defts. did not impose on the said engineer a duty to give orders to the sub-contractors to go to bottom on section three, so as to constitute a default of defts. by reason of the omission to give such orders; and we add, that, according to our construction of the contract, the omission to order either Randel or his sub-contractors to go to bottom on section three, was not a default of the company or of their engineer, nor can it be a ground of damage; for Randel had the right to go to bottom, and to order his sub-contractors to go to bottom, if he chose so to do, without any orders from the company. We have now, gentlemen of the jury, gone through those promis- nent and important points in this cause that particularly required from us a notice. The case is one of such magnitude, and embraces so many topics of consideration and remark, that it has been impos- sible for us to take any other than a very general view of it. Our only object has been to direct your attention to the proper points of inquiry; and to give you certain general and comprehensive rules as a guide in the investigation which you will have to make. The case now rests with you. Examine it, gentlemen. Investigate it with that patience which has hitherto, in the course of this tedious trial, so laudably distinguished you ; and for which you are entitled to the thanks of the parties, the court and the public. Persevere in this laudable spirit; go to bottom; and let this cause, distinguished as it has been in many of its features, above all others heretofore tried in this State, be still more signally distinguished by the propriety and justice of its determination. The jury retired on Tuesday evening, January 21st, and returned into court the following Saturday, at noon, with the following ver- dict: And now to wit, this ninth day of December, in the year of our Lord one thousand eight hundred and thirty-three, thirty jurors having been, by the sheriff of this county, duly summoned, returned RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. 321 and impannelled, out of which number a jury, to wit: John Clark, James Roberts, Baymon Deakyne, Thomas Morrison, George B. Meteer, Israel Garretson, Thomas Robinson, Jacob Whiteman, John W. Evans, Arthur J. "Whitely, James C. Mansfield and George Foote, being duly drawn, who, after all causes of challenge allowed did appear at the bar, and were duly sworn and affirmed, well and truly to inquire and true inquisition make and return of the damages and costs sustained by the plaintiff on occasion of the breach of cove- nant in the seventh count of the declaration in the said cause men- tioned and set forth, and well and truly to try the issues joined in this cause wherein the said John Randel, junior, is plaintiff, and the Chesapeake aiid Delaware Canal Company are defendants, and to speak the truth of and upon the premises, and a true verdict render according to the evidence. And the said cause and the inquiry afore- said, and the trial of the issues aforesaid progressing from day to day, afterwards, to wit: on the twenty-fifth day of January, in the year of our Lord one thousand eight hundred and thirty- four, the jurors aforesaid, upon their oaths and affirmations, respectively, do return an inquisition, under their hands and seals, in the words following, to wit: In the matter of the seventh count of the plaintiff's declaration, as amended in the above cause, and the judgment for the said plaintiff thereon. Inquisition made, indented, taken and returned in open court of the Superior Court of the State of Delaware, held at Newcastle in and for the county of Newcastle, on the twenty-fifth day of January in the year of our Lord one thousand eight hundred and thirty-four. Prout the said declaration the proceedings and the judgment thereon. Whereas, in and by the said judgment, it appears that the demur- rer of the said the Chesapeake and Delaware Canal Company to the seventh count of the said declaration, being the fourth additional count of the said declaration contained, confesses the said contract or articles of agreement so set out on over as aforesaid, and the fact that the said the Chesapeake and Delaware Canal Company did take the time within which it should be incumbent on the said John Randel, junior, fully to perform and complete his contract to be less than four years, from and after the first day of May next ensuing the date of the said articles of agreement, and the matters and things aforesaid being also in full proof before this inquest: And whereas, hereto- fore, to wit : on the twenty-first day of November, in the year of our Lord one thousand eight hundred and thirty-three, the justices who gave the interlocutory judgment on the said seventh count of the said declaration did (at the motion of the plaintiff in the action wherein the said judgment was given) make their order in the nature of a writ of inquiry to charge the jury attending at this court being the next court after the said judgment was given, to inquire of the damages and costs sustained by the plaintiff by reason of the breach of covenant in the said count mentioned: And whereas, at this court afterwards, to Avit: on the ninth day of December, in the year last aforesaid, came a jury to the bar, to wit: John Clark, James Roberts, 322 RANDEL, JUN. vs. CHES. & DEL. CANAL COMPANY. Baymon Deakyne, Thomas Morrison, George B. Meteer, Israel Garretson, Thomas Robinson, Jacob Whiteman, John W. Evans, Arthur J. Whitely, James C. Mansfield and George Foote, discreet, judicious and lawful men, being a jury attending at the next court after said interlocutory judgment was given, who were duly sworn and affirmed as the law requires, well and truly to inquire and true inquisition make and return of the damages and costs sustained by the plaintiff on occasion of the breach of covenant in the said seventh count of the declaration in the said cause mentioned and set forth, and the said jury being charged to inquire of the said damages and costs, and the said inquiry being made and evidence given in open court, and the inquest having considered thereof until this day, they do now forthwith return this their inquisition under their hands and seals, and they the said jurors do find upon their oaths and affirma- tions, respectively, that John Randel, junior, has sustained damages by reason of the premises and on occasion of the said breach of cove- nant in the sum of two hundred and four thousand seven 4 hundred and sixteen dollars and thirty-six cents, lawful money of the United States of America, and they also find that the said plaintiff has sus- tained costs by reason and on occasion of the premises in the sum of five hundred dollars of like lawful money. In witness whereof, we have hereunto, respectively, set our hands and seals the day and year aforesaid. And the jurors aforesaid, on the day and year last aforesaid, upon their oaths and affirmations, respectively, do further say, that they find for the plaintiff and assess the damages sustained by him on oc- casion of the first and second breaches of covenant in the second count of the declaration mentioned and set forth, at the sum of thir- teen thousand dollars, lawful money of the United States of Ame- rica ; on occasion of the third, fourth and fifth breaches in the second count, and the fourth and eighth breaches in the third count of the said declaration mentioned, at the sum of four thousand three hun- dred and fifty-eight dollars and seventy-nine cents, of like lawful money; and on occasion of the fifth breach in the third count of the declaration mentioned at the sum of four thousand three-hundred and ten dollars and sixty-nine cents, of like lawful money, making in all, besides the damages assessed in the inquisition aforesaid, the sum of twenty-one thousand six hundred and sixty-nine dollars and forty- eight cents, with six cents costs besides the costs expended; and as to the other breaches of covenant in the said declaration mentioned, the jurors aforesaid find for the defendants. Judgment nisi at fifty-five minutes past one o'clock, P. M. J. M. Clayton, Rogers, Read, jr. and Ingersoll for plaintiff. J. A. Bayard, Frame and Jones for defendants. SUPERIOR COURT, SPRING SESSIONS, 1834. TUKPm, JACOB AND CHAELES WEIGHT vs. WILLIAM N. POLK, adm'r. d. b. n. of WILLIAM EICHAEDS, deceased. A statement in writing made by a person, though not on oath, admitted to contradict his deposition. CASE. Pleas ; non assumpsit ; payment and discount, and act limi- tations. This was an action for goods sold and delivered, money paid for the use of deft., and for the non-performance of a contract for the delivery of a quantity of bark. The declaration contained six counts ; the first three on the following contract: "5 May, 1831. Eeceived of T. J. & C. Wright $1, in part payment of fifty cords of Spanish bark at $9 25 per cord., $80, to be paid in goods, and the balance in money on delivery." The fourth count was a special one for money paid the Farmers' Bank by plffs. for the use of deft.; and the other two were general for goods sold and money paid, &c. The plffs. were drawers of a promissory note for $350, dated 10 May, 1831, in favor of Eichards, which was endorsed by him and negotiated at the Farmers' Bank, and the money paid to him. This note was paid on 20 September, 1831, by the drawers. The plffs. offered in evidence an acknowledgment under seal, by Eichards, that the note was discounted for his use and promising to pay the discount. It was objected to; because, being under seal, it changed the character of the transaction and of the remedy. The court admitted it saying that no action could be framed upon it ex- cept for the discount. Plffs. also gave in evidence a receipt dated May 21, 1831, for $371, and signed by Eichards, on account of bark contract. They claimed, therefore, damages for the non-performance of the contract to deliver the bark; repayment of this sum of $371, paid in advance on account of the bark; and also the $350, the amount of the note discounted by the bank for deft's. use, and paid by plffs. at maturity. The defts. contended that the receipt and note referred to each other and were all one transaction; that the $371, included a repayment of the note discounted in bank. This was the principal matter in dispute, and it was very much contested before the jury. On the subject of dam- ages for the non-delivery of the bark, plffs. offered the deposition of Samuel Xeall a commission merchant in Philadelphia, to prove the price of bark there at the time stated. It was objected to and ad- mitted. The jury can estimate the value of the article at Seaford 324 STATE vs. ADMRS. OF WINOATE CANNON, DEC'D. from the price at Philadelphia or other usual market. The measure of damages for non-delivery of goods is the difference between the contract price and the price at the time in the market. The deft, offered in evidence a statement made by Samuel Neall, of bark sold by him in September, 1831. It was signed by him and his signature proved. Objected to, as not being upon oath; but the court admitted it on the ground that the previous declarations of a witness are always admitted to contradict his testimony. The plffs. had a verdict and judgment for damages, $887 21. Cullen and Frame for plaintiffs. Rodney and Robinson for defendant. THE STATE for the use of DAVID CANNON vs. CLEMENT LAYTON and SALLY, his wife, late SALLY CANNON, admin- istratrix of WINGATE CANNON, deceased. A natural guardian account no evidence. The mother allowed for maintenance of her child out of his distributive share of his father's estate. SUMMONS debt. Pleas, performance; payment; set-off; plene ad- ministravit, and the act of limitations. Replication, infancy. This was an action on an administration bond againgt a surety for the distributive balance of David Cannon in the estate of his father, William N. Cannon. The plff. was entitled to one-third of two- thirds of $306 47, or about $34 05 at two years old. The defts. offered in evidence an account passed before the register of this county by Sally Cannon, the mother and natural guardian of the plff., for necessary food and clothing furnished him during his infancy. Objected to. Wootten. The register had no authority to pass such an account. The minor had no power to except to it. If it had been a regular guardian account the minor might have excepted, and according to the settled rule of law the guardian would not have been allowed to any greater extent than the income. This paper is nothing more than a statement of the mother, who is a party to this cause. The Court said the account was not evidence per se, as it was passed without authority; but they would permit the defts. to prove the facts for the consideration of the jury. William S. Cannon left a widow in moderate- circumstances, and six children, the plff. being but two years old. If his mother maintained and kept him tfntil he was old enough to bo put out for his victuals and clothes, the jury ought to make her a reasonable allowance out of what was coming to him from his father. If it were otherwise, what would be the condition of children left in similar circumstances. They must go to the poor house; and the trustees could recover for their maintenance. The old orphans' court would not allow the guardian to exceed the income after 7 years: b\it under that age it always made a reasonable allow- ance for "board and clothing. Verdict for defts. Wootten for plaintiff. Layton for defendants. EMORY vs. COLLINGS. 325 THE STATE for the use of JOHN M. KILLEN and wife vs. PETER L. COOPER, Executor of GEORGE CARTER, deceased. Infancy must be specially replied to a plea of the statute of limitations. DEBT on an administration bond. Narr suggesting breaches. Pleas payment, non est factum, plene adrainistravit and act of lim- itations. To repel the plea of the statute of limitations the plff. was about to prove the infancy of Mrs. Killen; but it was objected to, and The court stopt him. There is no replication of infancy to the plea of the statute, and unless infancy be specially replied it cannot be relied on or proved at the trial. The plff. suffered a nonsuit. Frame for plaintiff. Bates and Huffing ton for defendant. CHARLES C. EMORY vs. ROBERT COLLINGS. Trespass lies for throwing from the public road dead animals into plaintiff's well. In trespass the locus in quo must be proved to be in the hundred laid. The declarations of the deft, at the time are evidence to show the quo animo, and admissible as a part of the res gesta. The question of jurisdiction of this state over the bay and river Delaware considered. TRESPASS quare clausum fregit " and threw divers dead geese into the well of said plff. and choked and filled up the same, and destroyed the water thereof, and prevented the plff. from having the use and benefit thereof in as ample manner," &c. &c. The locus in quo was stated to be a certain close in Dover hundred, Kent county. The proof was, that the deft, stood in the public road and threw the geese (which were his own geese and had been shot by plff. for trespassing) over into the plff/s well. Whereupon Frame, for deft, moved a nonsuit. First. Because there was no proof of an entry on the plff.'s close, and the action should have been in case, as case for erecting water spouts and throwing the water over on another's premises. Second. Because there was no proof that the trespass was commit- ted in Dover hundred, as laid in the narr ; nor even proof that it was committed within the county. (2 Saund. PI. & Ev. 855. ) But on looking into the authorities he gave up the first point as not tenable, and The court ordered a nonsuit on the other point, (a) Judgment of nonsuit. Bates and Ridgely for plaintiff. Frame for defendant. (a) In a subsequent case the locus in quo was laid in " Sussex county/' and proved to have been at Lewis Town. The court said they would offi- cially take notice that Lewis Town was in Sussex county. A more im- portant and difficult question has arisen as to the limits of Sussex county, or the extent of the state's jurisdiction over the bay and river Delaware. It was considered by the late court of oyer and terminer, in the case of the State vs. Morris, which was an indictment for the mur- der of the captain of a brig lying off Lewis Town, near the breakwater, 326 EMORY vs. COLLINGS. The case was renewed, in the same form of action, and came on for trial at the April term, 1835. The deft, offered to prove that at the time he threw the geese in the well he was very much excited; that it was not done from pre- and within the pitch of the capes. In the charge delivered to the jury on that occasion, the court expressed the following opinion. Harrington, chief justice: " The question of jurisdiction in this cause has excited the serious attention and consideration of the court. It is in some respects a novel question, involving facts in relation to territorial limits heretofore in some degree uncertain and not easily defined with precise accuracy. The exact line of demarcation between the high seas and the bay of Delaware which distinguishes between the jurisdiction of the United States and that of a particular state is necessarily a subject of doubtful locality; but the precise line of division between the states of New Jersey and Delaware having never been determined by any conventional arrange- ment between the states or the final adjudication of a court of competent authority is still more uncertain and doubtful. It may not be necessary for the court, on this occasion, to determine the full extent of this state's jurisdiction over the Delaware bay so as precisely to locate its eastern boundary ; but it will be necessary for us to inquire whether the state has jurisdiction over that part of the bay which was the scene of this al- ledged murder. The courts of the United States have jurisdiction of offences of this nature committed " upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any par- ticular state." They have also a specially delegated jurisdiction over a particular point near the mouth of the Delaware bay by virtue of the ces- sion of this state of " so much of the shore, bed and waters of the Dela- ware bay as are necessary for the erection of a breakwater or other har- bor, and for the construction of such defences as may be thought proper at. or near the mouth of said bay." The term " high seas," as used in the act of congress, means, in its ordinary sense, the open ocean, as distin- guished from a " river, haven, basin, or bay." Upon this clause, there- fore, the courts of the United States have not jurisdiction over an offence committed in the Delaware bay, within the 'pitch of the capes. But the act goes on further to extend the jurisdiction of these courts over offences committed " in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state." The term " out of the jurisdiction of any particular state " means out of any one of the United States; and the intention of congress was to confine the United States' courts to offences committed in bays, rivers, or arms of the sea not embraced within the territorial or jurisdictional limits of any particular state, and over which the process of the courts of such individ- ual state did not run. If, therefore, the Delaware bay, from the pitch of the capes upwards, lies within the territorial limits either of the state of Delaware or New Jersey, and is under the jurisdiction of either or both of these states, the courts of the United States can take no cognizance of offences committed on the bay, but such offences are to be inquired of and punished by the particular state within whose jurisdictional limits they are committed. EMORY vs. COLLINGS. 327 conceived malice, but on the moment, and that he complained much of the plaintiff having killed his geese. This testimony was objected to, and insisted on. Frame. The plaintiff goes for vindictive or exemplary damages; the evidence explains the quo animo and the provocation. J. M. Clayton. We don't object to competent proof of the state The state of Delaware has uniformly claimed the sole and exclusive jurisdiction over the whole of the Delaware bay to low water mark on the Jersey shore, and it has to a certain extent used and exercised jurisdiction over the bay and river by grants of territory, acts of restrictive legisla- tion, and service of process. On the part of the United States there has been no resistance of this claim ; but, on the contrary, such acknowledge- ment of the state's jurisdiction as can be inferred from the acceptance on several occasions of cessions by this state of certain parts of the bay and river for the purpose of erecting forts, piers and breakwaters, for defence against the enemy, or for the protection of commerce. On the part, also, of the state of New Jersey, this claim, though resisted in its full extent, has been partially acceded to and acknowledged, that state having lim- ited her claim of jurisdiction to the main ship channel of the bay. There have been several efforts made by New Jersey to settle this question of boundary between us, and it is to be regretted that our legislature has not acceded to the proposition for a conventional arrangement, or adopted some other course to establish the validity of our claim. So long back as 1782, John Dickinson, in a message to the general assembly of this state, informed that body that a resolution had been adopted by the legislature of New Jersey appointing commissioners " for settling and establishing the line of jurisdiction between that state, Pennsylvania and this state ; " that commissioners had also been appointed by the state of Pennsylvania; and he gave it as his opinion that such a measure was " proper to be taken on our part for settling the line of jurisdiction in the bay and river Delaware." The recommendation was not acted upon by the assembly, and though similar propositions have since been made by New Jersey, they have never been acceded to. The convention went on between New Jersey and Pennsylvania, and resulted in an amicable division of the islands, &c. within the river, and an agreement that each state should enjoy and exercise, under certain restrictions, a concurrent jurisdiction upon the waters of the river ; but that all capital and other offences com- mitted on the river, the juridical investigation and determination thereof should be exclusively vested in the state wherein the offender should be first apprehended, arrested or prosecuted. In November, 1820, the legislature of New-Jersey passed a law author- izing the governor to appoint commissioners to meet commissioners to be appointed by this state for the purpose of settling the boundary line be- tween the states and defining the jurisdiction of each. The subject was laid before our legislature and referred to a committee, who reported that it was inexpedient at that time to appoint commissioners for this purpose. According to the original law defining the boundaries of the several counties in New Jersey, passed in 1709-10, the counties lying upon the bay were bounded by the bay shore, which, so far as it goes, countenances the claim set up by this state to the whole of the Delaware ; but in 1821, after a failure of their proposition made the year previous for the mutual appointment of commissioners, the legislature of that state enacted and declared that the boundary lines of the counties of Salem, Cumberland 328 EMORY vs. L'OLLINOS. of feeling under which the deft, did the act; but we object to his dec- larations as any evidence of the quo animo. Frame. They are admissible as a part of the res gesta. Per cur. The evidence may go to the jury. The plaintiff seeks to recover not merely compensatory damages, but to make an exam- ple of the deft. If Collings was under the impression that Emory had and Cape May were the main ship channel in the river and bay of Dela- ware adjoining those counties, and they appropriated money for trying the right of the state to this extent, and again made an overture for the arrangement of the dispute by commissioners. The subject was again brought before our legislature for consideration, and the house of repre- sentatives resolved " that the jurisdiction and sovereignty of this state extends over the bay or river Delaware to low water mark on the Jersey shore," and again refused to appoint commissioners. The subject was not acted upon in the senate. Thus stands the case at present. The state of Delaware claiming the sole and exclusive jurisdiction and title to the Delaware Bay, as well by virtue of ancient charters as constant occupation, enjoyment and usage to a time running back previously to, and at the declaration of indepen- dence a claim not controverted, or denied, but rather admitted, by the United States a claim at one time admitted on the part of the state of New Jersey, so far as the fixing the boundaries of her counties in accord- ance with it, may fairly be construed an admission, and now" 1 only denied by that state so far as regards one half of the bay, from the main ship channel eastwardly to the Jersey shore. We speak of the claim of this state because we apprehend that from continual claim, or rather from the undisturbed and undisputed use, occupancy and enjoyment of terri- tory extending back beyond the declaration of independence, the right and title to such territory is established better and more certainly than by reference to chartered limits. Since that great event the states of this Union hold their territory not under charters from the British crown, but under the charter which was sealed with the blood and establishep by the persevering valour of our revolutionary fathers; from that time each state became itself a proprietor ; holding of no other ; absolutely seized of the independent sovereignty and uncontrolled jurisdiction within and over the territory then actually in its occupation and enjoyment; with this territory, thus defined, and only thus limited, she entered the confed- eracy and still holds to the same extent, unless she has granted any of her territory to the United States as most of the states have done for par- ticular objects. At the date of our independence, then, the Delaware Bay was claimed by and in the occupation and enjoyment of the state of Dela- ware. From the Delaware shore out so far as the main ship channel or middle of the bay the state of New Jersey did not then and has not since asserted any title or set up any claim of jurisdiction; to this extent, therefore this state has always been in the undisputed and undisturbed occupation and use of the bay, claiming title and exercising jurisdiction over its bed and waters. Without deciding, then, to the extent of the resolution of our house of representatives, " that the jurisdiction and sov- ereignty of this state extends over the bay or river Delaware to low water mark on the Jersey shore," which is unnecessary in this case, we are unanimously of the opinion that the sovereignty and jurisdiction of this state does extend over the bay and river, at least so far as the main ship channel or middle thereof; and in this opinion we are confirmed by the EMOKY vs. COLLIXGS. 329 lis geese, and on this impression, being excited, threw the geese down the well, whether this impression was well founded or not, it would go to disprove malice; and his declarations to that effect made at the time, being part of the res gesta, may be given in evidence. Roscoe on Evidence 22, &c. 1 Phillip's Ev. 218. The plaintiff had a verdict. Bates and Clayton for plaintiff. Frame for defendant. general doctrine recognized by the supreme court of the United States in the case of Handly's lessee, vs. Anthony et al. where chief justice liar- shall lays it down, that " when a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in (that) case, one state is the original proprietor, and grants the territory on one side only, it retains the river within its domain, and the newly created state extends to the river only." The state of Delaware here claims to be the original proprietor of the whole bay, which is dis- puted by New- Jersey only as it regards half of it; either, then, according to the principles of general law, supposing the original property of the bay to be in neither of the states, or according to the constant occupancy of this state undisputed by New- Jersey, our jurisdiction to the middle of the stream or main ship channel, is established. All the testimony in this cause goes to show that the offence charged in this indictment was com- mitted on the west side of the main ship channel or middle of the bay, and we are therefore of opinion that it is within the jurisdiction of this state, and consequently that this court has competent authority to in- quire into it. The United States has jurisdiction over a particular part of the Dela- ware bay by virtue of a cession from this state. The terms of that cession are, " that all the jurisdiction and title of the state of Delaware over and to so much of the shore, bed and waters of the Delaware bay as are neces- sary for the erection of a breakwater or other harbor, and for the con- struction of such defences as may be thought proper at or near the mouth of said bay, be and the same is hereby ceded to the United States of Am- erica." The extent of this cession is indefinite so much as is necessary for the erection of a breakwater and the act points out no means of de- termining what portion of the shore, bed and waters is necessary for this purpose; and we are unable to measure its extent, except by reference to what is actually used, to wit, the line of the breakwater as made or con- templated to be made, its length, breadth and depth. This must be the fair construction of the act ; for no more land can be necessary for a par- ticular purpose than is used in effecting that purpose, and it reduces the extent of the state's grant in this instance to a very narrow compass. Yet, if the offence charged in this indictment had been committed on the breakwater, or at any place now used or intended to be used in the course of its erection, we are of opinion that such offence would be cognizable in the United States courts only, notwithstanding the partial reservation of jurisdiction subsequently contained in the act. The testimony in this cause leaves us no ground to doubt upon this point. At the time the of- fence is alledged to have been committed, the brig lay wholly without the present or contemplated line of the breakwater, and not in any portion of the bay which is or will be used or can be necessary for its erection and completion. The jurisdiction therefore still remains in the state. 330 FARMERS' BANK vs. STIDHAM'S GARNISHEE. CLEMENT SCOTT vs. WILLIAM HEATHER. If a bailee surrenders the pledge to bailor hia lien is gone. An agent, if he has authority, may transfer the right of his principal without declaring his agency. REPLEVIN for a horse; value sixty dollars. Pleas rion cepit and property. Issues. It appeared from the evidence that plaintiff had bought the horse in question from one Ezekiel Simpson, and that he was to belong to plff.'s brother, Jesse Scott," when (or if) he paid for him." The two brothers executed a note to Simpson for the price of the horse, Jesse as principal and Clement as surety, but " Clement was to hold on till Jesse paid for him." Some time after Jesse rode the horse from his brothers and traded him for a worthless one with a Mr. Marvel who sold him to the deft. It was proved that Clement had said he gave Jesse liberty to take the horse and trade him for a pair of steers, or a gentler horse. The Court by the Chief Justice, charged : First. That if a bailee surrenders possession of the pledge to the bailor his lien is gone. Second. That an agent may transfer all the right of his principal, if he has authority, without declaring that he is acting as such agent. Ex. gr. The case of a factor selling flour, &c. &c. Verdict for plaintiff, $40. FARMERS' BANK of the STATE OF DELAWARE vs. JOSEPH BROWN, garnishee of CHARLES STIDHAM. If money be placed in A.'s hands by B. to pay his debt to C., he is liable to C. in assumpsit, but cannot be attached as the garnishee of B. ATTACHMENT. Plea nulla bona. Frame for plff. proposed to prove by John Manlove, Esq., cashier of the Bank, an admission of Brown that Stidham had placed money in his hands to pay this debt due the Bank. Bates for the garnishee objected. Brown is not the debtor of Stidham. The debt (if any) is due from him to the Bank, for money had and received to their use, and for which assumpsit would lie at the suit of the Bank. A recovery had here could not be pleaded in bar to such an action. Per curiam. This evidence is not applicable to the case. The proof offered is not that Brown owes Stidham, but that he owes the Bank; and his liability to the Bank cannot be enforced in this way. Frame, for plaintiff. Bates, for Brown. BANK OF WIL. AND BRANDYWINE vs. SIMMONS. 33: DANIEL GREEN vs. JOHN LOCKWOOD'S adm'r. Evidence of discharge by parol of a sealed instrument is inadmissible under the plea of payment. Eleven years can never raise a presumption of payment from lapse of time. DEBT on a single bill given by John Lockwood and Thomas Green for $343 94, dated 1 Jan. 1814, with sundry credits up to 1822. Pleas, non est factum; payment, discount. Defts. counsel asked a witness if he had not heard the plaintiff say he had made arrangements with Thomas Green for the payment of this note and was to look to him alone. Objected to. Per curiam. The plea is payment. Under it you cannot dis- charge this sealed instrument by proof of any parol understanding. Proof of any such agreement to release or discharge the obligation of Lockwood is therefore inadmissible. The case was argued on the presumption of payment from lapse of time; but The Court said It was but eleven years from the last payment to the commence- ment of the action; and this length of time can never afford a pre- sumption of payment. Verdict for plaintiff. Bates and Frame for plaintiff. Ridgely and Huffington for defendant. THE PRESIDENT, DIRECTORS and COMPANY of the BANK of WILMINGTON and BRANDYWINE vs. WILLIAM SIMMONS. Variance in the date of an instrument declared on is fatal ; the date being matter of description. Where a note is made payable at a certain place demand at the place must be proved. Demand must be on the last day of grace. The indorsement of the notary taken as evidence of the time of demand. though the protest bore a different date, on a proof of his usage. If the holder of a note takes a higher security from the drawer it discharges the indorser, though time be not given. CAPIAS case. Narr; pleas; reps.; issues. The declaration set out two notes; one dated 22d March, 1822, for $160, at two months, drawn by Joseph and Thomas Gilpin, in levor of deft., and endorsed to plffs. ; the other dated 28 July, 1817, for $800, at six months, drawn by William Walker, in favour of F. Leonard, by him endorsed to deft., and from deft, to the Bank. The pleas were non assumpsit. 2d. Payment; 3d. That plffs. had made an arrangement with, and given time to the makers and thereby re- leased the deft. 4th. Accord and satisfaction by the makers. Plffs. gave in evidence a note drawn by the Gilpins, dated 21st March, 1822; and a note drawn by W r alk'er, dated 28th 7th month, IS 17. They proved the endorsement, protest and notice in regard to the first note by the notary; and the protest of the second note by the register of a deceased notary. The protest was dated 30th Septem- BANK OF WIL. AND BRANDYWINE vs. SIMMONS. her, and the notary had endorsed " noted 29th September, 1817. It was proved to have been his custom to draw out and date the protest the day after it was made. The Gilpins had no funds in Bank when their note became due. The deft, gave in evidence the record of a judgment at the suit of plffs. against William Walker, dated 21 April, 1818, for $3,357 31, but he could not connect it with the vote by any proof. Hamilton and Read, junior, for deft. First, as to the Gilpin note. There is a fatal'variance between the note declared on and the note proved : the date of the former is stated as the 22d March, and the latter bears date March 21st. The date is matter of description and important. There is no identity between the two. Again. This note is made payable at the Bank of Wilmington and Brandy wine, and there was no demand at the Bank, nor is the want of funds al- ledged in the narr as an excuse for such demand. According to the case of Bank of Wilmington and Brandywine vs. Cooper's ad- ministrator, this also is fatal. (ante 10.) Second. The Walker note. After this note became due the plffs. took Walker's bond and entered judgment upon it with a stay of three months. This discharged the indorsers. Again. The protest is ir- regular. It is established that the demand must be made on the last day of grace, in this case, on the 63d day. The jury will determine whether this demand was made on the 63d or the 64th day. If the latter, it is too late. What is the evidence? The notarial register of Roche the deceased notary. But that is against them as it shows that the demand was made on the 30th of September or 64th day. They seek to explain this by evidence of Roche's usage. They first bring the book to prove the demand; and then contradict the book by at- tempting to disprove the date. Wales and Rogers for plaintiffs. The note declared on is dated 22d March, the note proved bears date March 21st, but is for the same sum, same parties, &c. The jury must be satisfied that they are identical and that is sufficient. We admit that the demand should be made on the last day of grace ; that is, in the case of Walker's note, on the 29th of September. Have we not proved it? The nota- rial register states the demand to have been made on the 29th. It was then noted for protest; and it is proved to have been the custom of the notary to draw out the protest on the next day. And this is the use of noting. It fixes the time of demand and refusal. As to the other defence, it has not been supported by any proof that the bond and judgment have any connection with this note. If the bond had included the note it would certainly have been taken up by Walker when the bond was given. The possession of the note by the Bank is conclusive that the judgment is an entirely different transaction. 2 Stark. 264; 2 Term Rep. 714; 4 do. 179. By the Court. 'Both the first and second objections to the note drawn by the Messrs. Gilpins are equally fatal to the plaintiffs recov- ery. The variance in the date is conclusive; and the court decided in the Bank of Wilmington and Brandywine vs. Cooper's adminis- trator, that where a note is made payable at a certain place, demand at that place must be averred and proved; and though the want of funds may excuse the demand, the excuse must be set out. TATLOW vs. JAQUETT. 333 As to the other note; whenever a man indorses he undertakes to pay the bill provided a demand shall be made on the drawer on the last day of grace and reasonable notice be given him of the non-pay- ment. The demand here should have been made on the 29th of Sep- tember, 1817. Was it made then? The note has an indorsement in the hand writing of Roche the notary, " noted 29th September," and his general custom is proved to have been to draw out the protest the day after the demand. The protest here is dated the 30th. If the demand was on that day it is too late and the deft, the indorser is dis- charged, but if the jury take the indorsement made by the notary with the proof of his practice as the evidence of the demand it was in time. On the other ground; if the bond and judgment include this note the indorser is discharged whether time was given or not, for the security is of a higher nature and merges the note. But the deft, must have proved to the satisfaction of the jury that this note was included in the bond of which no evidence has been offered. (The court said nothing about the misdescription of this note in the date 28th July for 28th of seventh month, not being clear on the subject, and a decision on that point not being urged.) Verdict for plaintiff, $1,598 00. Wales and Rogers for plaintiffs. Hamilton and Read, Jr. for defendant. TATLOW vs. JAQUETT. One may justify the repetition of slanderous words if he merely repeats what he has heard, and gives his author at the time. If other slanders be proved to show malice the deft, may justify without plead- ing, as to them. Deft, cannot plead the general issue and also matter amounting to the gen- eral issue. CAPIAS case. This was an action of slander. The declaration charged the speak- ing these words concerning the plff: "He (innuendo Tatlow) stole wheat from his Jaquett's barn; and he (Tatlow) stole plank from the Wilmington Bridge to mend his (Tatlow's) barn floor; and he (Jaquett) could prove it; and he (Jaquett could prove more than that," in the presence and hearing of Lewis Ashton, Robert M'Far- lane and others. Second. And these words, in the presence and hearing of John Wiley and others: "He (Tatlow) had stolen four bushels of wheat and also plank to lay or mend a floo.r in a barn or stable; and that he (Tatlpw) had stolen a calf." Third. In the pres- ence and hearing of T. M. Pennington and others: "He (Tatlow) stole wheat from Thomas Stewart's house, and gave* him (T. S.) fifty cents not to say any thing about it." The deft, pleaded; first, not guilty. Second. That before speaking and publishing the words the said Peter Jaquett had heard from and been told, by Adam Shivery and George Shivery, that the said Tatlow had stolen plank from the Wilmington Bridge; and had heard from and been told by the said Adam Shivery, that the said Tatlow had stolen wheat from his (Ja- quett's) farm; and had heard, &c., from George Shivery that Tatlow 334 TATLOW vs. JAQUETT. had stolen a calf of Thomas Jaquett; and that at the time of stating these words he gave the names of the persons of whom he had heard them. Third. That the declarations in relation to the wheat and calf, were made with an explanation of the circumstances that showed the deft, meant merely to charge the plff. with a trespass. Issue on the plea of not guilty. Replication generally and issue on the second plea; and demurrer to the third plea for these causes: first, that the deft, has therein pleaded matter of evidence; second, that the plea amounts to the general issue; third, that it is a plea of justification without admitting the words laid in the narr; fourth, it sets forth the alledged effect of the words spoken and not the words themselves. The plff. proved the slanderous words laid in the declaration; and also, by way of showing malice, that the deft, had said of plff. " that he had found a bolt of cloth along the road and secreted it, which was as good as stealing." The deft, proved by the Messrs. Shivery, that they had communi- cated to him the several charges laid in the narr ; and also that they had told him about the cloth, and were about to detail the circum- stances in relation to the cloth; when plff.'s counsel objected to the testimony. Bayard. There is nothing in the declaration about this cloth, and it is not now proved as a distinct ground of damage, but only to show the malice with which the deft, was actuated in slandering the plff. The deft, cannot justify in relation to this matter by proving that he heard it but only by proof of the truth of the words. The Court. The matter in relation to the cloth does not amount to a charge of larceny. The witness proves the charge to have been that Tatlow found the goods along the road and secreted them. The proof on this subject comes on the deft, by surprise. Not being laid in the declaration he had no opportunity of justifying, nor of plead- ing that he merely repeated words spoken by another; and, as they are now given in evidence to aggravate the damages by showing mal- ice, the deft, may rebut the imputation of malice by proof either of the truth of the words or of the innocent manner of his speaking them, as that he repeated what he heard from another, and gave his authority. Where a man hears a slander he may repeat it if he does so in the same words and gives his author at the time. 2 Stark. 879, 875. This is the settled rule of law whether reasonable or not, and we do not here pretend to defend its reasonableness; but it is for the jury to say whether Jaquett gave the Shiverys as his authors on all occa- sions when he repeated and gave circulation to the slanderous charges laid in the declaration; and whether he confined himself on all such occasions precisely to what he had heard from them. It is not enough that others told facts or circumstances to Jaquett from which he might infer larceny; he must prove that another told him the same thing which he has repeated. It is not now denied that the words were spoken; and, if the plea of justification has failed, as in our opinion it has, the plaintiff is entitled to recover. If he has really been injured in his reputation or character by these slanders; or the deft, circulated them maliciously and wantonly, for the purpose of CLARK vs. HILL. 335 so injuring him, the jury are at liberty to give exemplary damages for the sake of public example and warning to others. The plff. had a verdict for $67*0. Bayard, Rogers and Read, junior, for plaintiff. Wales and Booth for defendant. On the demurrer to third plea Booth said, the question is not whether the matter in this plea might not have been given in evidence under the general issue; but whether it may be pleaded specially. And he cited Gould. 328. 1 Saund. 131, n; 1 Chitty PL 488; 4 Coke 14, 12. Bayard. The party here has pleaded the general issue: he can- not also plead it specially. There are cases where a man may plead a matter specially, or give it in evidence under the general issue, but he can never do both. In all cases of justification the party must justify the words and not the effect of the words. 7 Cowen, 38. 11 Johns. Rep.; 10 Johns Rep. 291. The court sustained the demurrer. DANIEL NEWBOLD vs. EGBERT POLK. A justice cannot refer a cause but on the application of a party. CEKTIORARI. The record showed that the parties appeared and after opening the matter "the justice deemed it necessary to have the case tried by referees" and referred it, without application from either of the parties. Court. The justice was bound to try the cause himself, unless one of the parties claimed a trial by freeholders. Dig. 335. Judgment reversed. R. H. Bayard for defendant. LEVI CLARK vs. SARAH HILL. To maintain trespass the plff. must be in the actual possession. A seizin in law is not sufficient; nor will a tortious or clandestine entry give the possession. TRESPASS before Justice Cornwell removed to this court on a plea of freehold. Narr. Pleas. First. That the record upon which the action is founded does not contain any statement of the plff.'s demand before the justice, and is therefore imperfect and defective. Dig. 360. Second. Not guilty. The court directed the jury to be sworn on the second plea, reserv- ing the first for their own decision on inspection of the record. Rogers, for plaintiff: Claimed title in the locus in quo under patent as far back as 1754, and he traced the title by sundry mesne conveyances to the plff., whose deed bore date 17 November, 1829. 336 CLARK vs. HILL. He proved that the place in which' the trespass was committed was within the lines of the plff.'s title deeds, but it also appeared that the land had been in dispute as far back as 1814, and the possession was doubtful. The only act of ownership which the plff. had exercised over it was the cutting of five or six cords of wood in the sprin'g of 1832. The defendant objected to the cutting at the time; said it was over her lines, and took away a part of the wood. She had frequent- ly cut on the land before that, large quantities of wood and rails. Mr. Rodney for deft, moved a nonsuit. There is no principle better settled than that the plaintiff in an action of trespass must show himself to have been in possession at the time of the trespass commit- ted. There is no such proof here. Mrs. Hill has always been in pos- session. The locus in quo is sufficiently distinct. She claims and is in possession of all the land on the north side of a certain branch which divides her farm from that of the plaintiff. It is not enough that the old deeds under which plff. claims title would include this land since it is apparent that the deft, has held adversely and the plff. was never in actual possession. He attempted to get the possession in 1832, by ordering his tenant to cut and carry away a portion of the wood, an attempt which was resisted at the time. On that occasion she asserted her right by apprising the tenant that he was cutting on her premises and by actually carrying off a part of the wood so cut. This clandestine and irregular entry would not give the plff. posses- sion so as to enable him to maintain trespass. There must be an actual bona fide possession. Rogers. The court will leave it to the jury if there be any proof of possession. The land in question is undoubtedly covered by the plff.'s title papers. The deed from Lowber to him conveyed him the legal title to the premises, and this is prima facie evidence of pos- session. It is peculiarly so in relation to woodland, of which there can be but little other evidence of actual occupancy. And in the case of a mixed possession, the law adjudges it to him who has the legal title. It was so decided by this court in the case of Hunter vs. Lank, ante 10. We show here some acts of actual possession and ownership; a general title to the whole farm and the use and enjoy- ment of this particular part. I admit that we must prove possession in this action, but it may be established by slight acts where the plff. has the legal title. Rodney, in reply. A seisin in law is not a sufficient possession to maintain trespass. Roscoe Ev. 380. And shall such a seisin derived from the deed of a third party not himself proved to have been in possession put the plff. in possession of land held and claimed by us, and thus throw us into the condition of plff.'s in an ejectment instead of defts. I deny that there is any proof here of a mixed possession; the possession was always in the Hills, and never in the plff. except on one occasion, when he invaded our possession clandestinely for the very purpose of getting up this action of trespass. This is the only pretence of actual occupancy on the part of the plff., though it is proved that there has been some controversy or dispute about the premises ever since 1814. This is not therefore a mixed possession, and the court will not refer so bald a case to the jury, but will non- STEWART vs. CLEAVER. 337 suit the plff., there being a total failure of proof in relation to his having been in possession. By the court. It appears from the evidence in this case that Mr. Clark is in possession of a farm, lying chiefly, if not altogether, on the south side of a certain branch called the Green Spring branch,, and that Mrs. Hill is the owner of a farm on the north side of the same branch. To a small strip of woodland intervening, but also on the north side, both parties claim title; but it does not appear that the plff. was ever in the actual possession of this woodland, or exercised any act of ownership over it, but on one occasion, when his tenant entered by his orders and cut some five or six cords of wood, appar- ently with the sole purpose of placing himself in a condition to treat the deft, as a trespasser. We are of opinion that this one act did not give him such a possession as will enable him to maintain trespass. The deft, was in possession; had exercised frequent and unequivocal acts of occupancy and OAvnership; her possession could not be divest- ed in this manner, even though the plff. had the legal title. Such an act would not of itself establish even a joint occupancy of the plff. with the deft. We agree to and repeat the decision in Hunter and Lank; but this is not the case of a mixed ownership or common pos- session. It is, as the proof now stands, the case of the legal title, un- accompanied by any actual possession on the one side, and an ex- clusive occupancy on the other. The plff. in such a case cannot maintain trespass against the party in possession, but must resort to his action of ejectment. We therefore order a nonsuit. Rogers for plaintiff. Rodney for defendant. JOHN STEWART vs. ISAAC CLEAVER. Words are not actionable in themselves unless they impute a legal crime. CASE. Narr. Pleas, non cul and the act of limitations. This was an action on the case for words. The declaration stated the colloquium to be in relation to the matters proved in a certain suit theretofore depending before a justice of the peace between Cleaver, the present deft, and Stewart the plff.; and the words laid were "He (meaning Stewart) proved it by hiring captain Bready to swear to a lie for $5 he gave him." And again " He (meaning Stewart) did prove it, but it was by getting Captain Bready to swear to a lie for five dollars." The plff. gave in evidence the record of a suit before justice between Cleaver and Stewart, and the name of William Bready ap- peared on the record as a witness, but it did not otherwise appear that he was sworn in the cause. He proved the words clearly; and that they were spoken in relation to this suit. He here rested. The only defence set up was that it did not sufficiently appear that the swearing alluded to by the deft, was in the course of a judicial 43 338 WASHINGTON vs. RICHARDSON. proceeding. Mr. Wales laid it down that this was necessary, other- wise the words were not actionable. If A assert that B had hired C to go before a justice, and swear to a lie, it would not be actionable. The swearing alluded to must be under such circumstances as would make false swearing perjury; it must be a charge of subornation of perjury in the course of a judicial proceeding. The court assented lo all this, and so charged the jury; but the case was made out even to this extent, and the plff. had a verdict. It appeared that the words were spoken in a passion and without express malice, and the jury gave nominal damages. J. A. Bayard for plaintiff. Wales for defendant. ELIZABETH WASHINGTON, executrix of JOHN WASHING- TON, appellant defendant below vs. JOSEPH RICHARDSON, appellee plff. b. An action of trespass before a justice does not abate by the death of the deft. APPEAL. Trespass for shooting a cow. An action of trespass was instituted by Richardson against the defts.'s testator, John Washington, before a justice of the peace. The trespass complained of was the shooting plff.'s cow. Plff. had a report and judgment in his favor before the justice, and deft, ap- pealed. After judgment, deft, died, and letters testamentary were duly granted to Elizabeth Washington, his executrix. Hamilton, for appellant, contended that the action was abated by the death of the original deft. Actio personalis moritur cum persona is the general principle; and it is expressly so by our act of assembly in relation to this very matter. Dig. 359, 60, (and Dig. 224 contra.) " In such actions (to wit : ' actions of trespass for direct and immedi- ate injuries in carrying away or taking, destroying or damaging goods or chattels ' ") the cause shall not continue or survive against execu- tors or administrators. It is true that another act of assembly saves the abatement in general ; but the act I have referred to fixes the law in this particular case, in all actions of trespass cognizable before jus- tices of the peace. Bayard, for the appellee. The death of the deft, in this case hap- pened after the judgment was rendered before the justice, and if there is any abatement about it, it is an abatement of the appeal. But there can be no abatement after judgment. The judgment before the justice fixes the debt. The court. The act on page 224 of the Digest, though prior in the order of arrangement, is in fact subsequent in point of time to the act on page 359. It gives the general rule on this subject, and saves the abatement " in all personal actions, except actions for assault and bat- tery, defamation, malicious prosecution, or an injury to the person, or upon penal statutes/' These two laws are unquestionably contra- dictory, but that on page 224 being a general law on the subject of survivency of actions, and being also subsequent in date, repeals the other. Leges posteriores priores contrarias abrogant. BIRD vs. STILLEY AND RUDOLPH. 339 On the law applicable to the facts of the case the court referred to the case of Richardson vs. Carr, (ante 142,) and repeated that deci- sion. The plff. had a verdict for $28. /. A. Bayard, for plaintiff. Hamilton, for defendant. MARIA BIRD vs. SUSANNA STILLEY and JOHN RUDOLPH. If rent be charged on land and the grantee release any part of the land, it is a release of the whole. A woman divorced a mensa et thoro entitled under the provisions of the act to execute a release. REPLEVIN. The deft.. Rudolph, made cognizance as bailiff for Susanna Stilley, who avows the taking as a distress for rent in arrear. Pleas First, a release; second, rien in arrear. Replication to the plea of release, non est factum and issue. Issue also on the other plea. Gilpin, for plff. Thomas Cartmell died in 1804, and by his last will and testament he bequeathed an annuity of $40 per annum to his wife, Susanna Cartmell, (now Susanna Stilley, the deft.) which he charged on lands devised to his four sons. One of the sons, William, afterwards conveyed the land so devised to him, and charged as afore- said with the said annuity or rent charge, to Empson Bird, and in 1818 Susanna Stilley executed to Bird a paper writing, releasing to him one fourth part of the said annuity charged as afs'd. on the lands so conveyed to him. From Empson Bird this land passed to the plff. in replevin. Release offered in evidence, and objected to as not be- ing under seal. Bayard. This is no release ; it is not a deed at all ; and if it were, it is made by a married woman. Wales. The annuity does not arise by deed, and it is not necessary that the discharge should be by deed. As to the coverture, there is no evidence of it, and none could be admitted on the issue of non est factum. If relied on, it should have been pleaded specially. The court. The question is not whether this annuity or rent charge could be discharged without deed ; but it is whether the paper offered is the deed of the party. The plea sets up a release; the rep- lication denies that it is the deed of the party, and the rejoinder af- firms that it is her deed. This is the issue, and it is not supported by the paper offered. There is, however, another issue on the plea of rien in arrear to which the paper offered in evidence applies, and under which it is admissible. Plff. gave in evidence a paper dated in 18,18, releasing all demands on Empson Bird, or on his part of the land devised by Thomas Cart- mell for the payment of any part of the said annuity of $40. Also, a release under seal, dated April 10th, 1833, from Susanna Stilley to William M'Sordley, who held by conveyance from Bird a part of the land devised to Mr. Cartmell, charged as aforesaid. Plff. then offered in evidence the deed of Thomas Cartmell, Jr. 340 BIRD vs. STILLEY AND RUDOLPH. and Susanna Stilley to Henry Guest, conveying one-fourth of the land devised by Thomas Cartmell, to wit : the share of Thomas Cart- inell, Jr. anU releasing to the said Guest all demands on him, or on the land HO conveyed to him, on account of the said annuity. This deed was objected to. Bayard. This deed was executed by Mrs. Stilley during cover- ture, and this is pleaded in the case next on the docket wherein Guest is the plff. in replevin. There are four cases all depending on the same state of facts. To the plea of coverture there is a replica- tion of divorce and a demurrer. Wales produced an exemplified copy of the act of assembly divorc- ing and separating Susanna Stilley, from the bed and board of her husband, 'John Stilley, and enacting that she should, from thence- forth, " enjoy, have and receive all the rights, liberties; immunities- and privileges of a free, single and unmarried woman," provided that it should not be lawful for her to carry again during the life time of the said John Stilley; and further enacting that it should be lawful for her " to hold and retain all such personal property as is now in her possession, and may ask, demand, sue for and recover and receive, in her own name and for her own separate use, all such yearly dt other rents, annuities, debts or sums of money as may be now due her or shall hereafter grow and become due to her, and all other real and personal estate whatsoever to which the said Susanna now is, or here- after may become entitled to in her own right," &c. He relied that this act of assembly gave to Mrs. Stilley full power to execute the deed in question releasing her annuity. R. H. Bayard, insisted that it gave no such power. It is but a partial divorce a divorce a mensa et thoro. In so restraining it the legislature designed that it should be subject to all those restrictions to which such a limited divorce is liable. It is a mere separation of the parties and a restoration to the wife of those personal rights and immunities from the control of her husband, which would follow a divorce of a similar nature in the Ecclesiastical Courts of England; and additionally the granting to her certain personal property, and the right to recover certain rents or the proceeds of annuities as they should fall due for her separate use and maintenance and in lieu of alimony. This was necessary. The Ecclesiastical Court', on a decree of separation, would also decree alimony; our legislature, by law, enacts precisely such a separation, subject to all the incidents of such a divorce, but as there is no court to make the additional provision for alimony, the act proceeds to vest in her for her separate use the proceeds of certain annuities. Does this enable her to destroy such annuity? In the first place it gives her no power to execute a deed; and again she has no power over the annuity itself, but only over the proceeds. Suppose there are lands held by her husband in her right ; the act gives her the rents, but does it give her the power to defeat his interest as tenant by the curtesy initiate? Can she convey these lands under the authority to collect rents? The whole of this act must be taken together and so construed as to give the whole meaning. The words of the divorce are to be taken in their legal sense, a separation from bed and board, and the words which follow, that she " shall enjoy, have and receive all the rights, BIRD vs. STILLEY AND RUDOLPH. 341 liberties, immunities and privileges of a free, single and unmarried woman/' refer only to her personal rights and immunities from her husband's control. It is evident they do not refer to any rights of property, otherwise the subsequent specific and particular grant of the right to receive certain species of property essential to her sup- port would be useless and nugatory. We insist then that Mrs. Stil- ley had not the power to release this annuity, and that her joining in the deed to Guest as it was in point of fact, without consideration, is also in point of law, null and void, as the act of a feme covert. J. A. Bayard, for plaintiff. The objection to the evidence is a technical one founded on the supposed restrictive force in the words "from bed and board." The question is whether the act so far re- moves the disability of coverture as to enable Mrs. Stilley to release an annuity granted to her in her own name, and due to her in her own right. The act is in its terms a divorce a mensa et ihoro, but it also grants to the wife certain rights and privileges which it it said would not follow a sentence of partial divorce in the Ecclesiastical Courts. It is not denied that the legislature has entire control of the subject; that their act is operative in whatever form and to whatever extent they choose to pass it. Call it, therefore, what you will, what- ever rights, powers, exemptions or privileges they have granted to Mrs. Stilley, she possesses, whether they would follow a partial di- vorce in the Ecclesiastical Courts or not. The inquiry then is only what has the legislature granted? That she shall enjoy and have all ihe rights, liberties and immunities of a free, single and unmarried woman, with but one single exception, that of marrying again during Stilley's life. To all other purposes she is completely a divorced wo- man. Now if one of the rights of a free unmarried woman is to dis- pose of her own property, and to release debts due to her, the deft, in this case has that right, and this is the right she has exercised in making the deed now offered in evidence. And as if to put it beyond a cavil the act goes on to grant, in express terms, the right and power to sue for, collect and receive, in her own name and to her own use, all kinds of property, real or personal, to which she then was or might become entitled, particularly specifying annuities and rents. The right to sue includes the right to release. The Court. This woman is divorced to all purposes, but that of marrying again during the lifetime of John Stilley. She had the power to release this annuity. Deed admitted. The plff. then proved a release from Mrs. Stilley to the holders of two other parts of the land charged; and, after hearing the defts/ counsel, the COUET stopped Wales from replying for plff. They stated to the jury that there was one point which settled the case. This suit arose out of a distress by Mrs. Stilley for twenty-nine years arrears of an annuity or rent charge bequeathed to her by her former husband, Thomas Cartmell, and charged upon lands devised to his four sons, William, Thomas, George and Joseph. The plff. in replevin has given in evidence a deed from Thomas Cartmell, jr. and Susanna Stilley (the deft.) to Henry Guest, for one fourth of the land charged with this annuity, to wit: the share of Thomas Cartmell, the younger, one of the devisees. This deed bears date 342 EGBERS vs. LOGAN. the 12th April, 1812; and, after reciting the rent charge of $40, on the whole tract it conveys the one-fourth part of that tract to Guest,, and releases to him, generally, all rents issuing out of it, and particu- larly discharges and releases it from the one fourth part of this an- nuity. This release of a part operates in law as a release of the whole; and it will riot be necessary for the jury to examine the ques- tion which has been principally considered in the argument, whether Mrs. Stilley has not, in point of fact, released the whole of this an- nuity, for it is a well established principle, that if rent be charged upon a tract of land and the grantee release any portion of the land charged, it is a release of the whole; (5 Bac. Ab'dg. 694.) and on this principle the deft, has released the whole of these lands, and the plff. in replevin must have a verdict. Wales, Oilpin and J. A. Bayard, for plaintiff. R. H. Bayard, for defendants. Quere. Was this a rent charge such as could be distrained for un- der the act of assembly? (8 vol. 218.) If so, all annuities charged on land must be the subject of distress though no clause of distress be added to the grant. The court was not called on to decide this question, it was therefore not examined. CHRISTIAN EGBERS vs. FRANCIS LOGAN. Quere. Can one tenant in common of a vessel maintain trover against his co- tenant without a destruction of the thing held in common? What is the legal evidence of property in a vessel? CASE. Trover by one tenant in common of a vessel against his co-tenant. Read, jr., for plaintiff. This was an action of trover brought under the following circumstances. Egbers and Logan purchased together a schooner called the Ohio ; and sailed her on their joint ac- count for some time. Logan afterwards entered the vessel at the cus- tom house in his own name, took out a license as sole owner, and then sold her without the knowledge or consent of his partner Egbers. He offered the license in evidence, and it was objected to. Bayard. The license is no evidence of ownership. The ships husband is the proper person to take out license and give bond; nor is it necessary, by any means, that the names of all the owners should appear in the license. The bill of sale is the only evidence of property. 2 U. 8. L. 171, 4, of act of 1793; Abbot on Ship. Old. p. 94, 86; Th. Raymond 15; Graves vs. Saucer, 2 Johns. Rep. 468 ; St. John vs. Standring; Roscoe Ev. 408, 6. Read, jr. The evidence is offered to show, not that the property was actually vested in the person named in this license, but to prove the fact that he took out such a license; that is, that he, in the most public manner, took exclusive possession of the vessel and claimed to be the sole owner. It is evidence to establish a conversion. LESSEE OF BROOM vs. THOMPSON AND YOUNG. 343 Hamilton. The question before the court is one of property as well as conversion. Proof of one must precede the other. Can the property in this vessel be proved by such evidence as this? More- over the paper itself is not authentic. It turned out that the paper had no seal to it, and not being duly authenticated, it was rejected on this ground, and the plff. suffered a nonsuit. The question which he designed to raise in this case was whether one tenant in common of a vessel could be guilty of such a conver- sion as that trover would lie against him, without an actual destruc- tion of the thing. The older cases are against the action ; but a doubt is expressed in 2 Johns. Rep., and very strong in 7 Com. Law Rep. 148 ; Barton et al. vs. Williams et al. Read, jr., for plaintiff. J. A. Bayard and Hamilton, for defendant. DOE, on the demise of ABRAHAM BROOM vs. ROE, Gas. Ejector and WILLIAM THOMPSON and THOMAS YOUNG, tenants in possession. A devise to A, B and C and all the other children of D that shall hereafter be born with directions that D should keep the property until the youngest child be then had, or shall hereafter have, shall arrive at age, does not give D a right to the possession during the possibility of issue, but only during the minority of any child actually in existence. EJECTMENT. Case stated. The case stated set forth; that James Broom, late of Newcastle county, being seized of certain lands, &c., in said county, duly made and executed his last will and testament, in writing, in and by which, among other things, he devised and bequeathed as follows : " Also I give and devise all the residue and remainder of my lands, houses, tenements, rents, hereditaments and real estate whatsoever, unto James Broom, Hetty Willis Broom, Eliza Broom, Harriet Rum- sey Broom and all the other children of my said son, Abraham Broom, that shall hereafter be born, the said four children being the son and daughters of my said son Abraham, and their heirs forever, equally to be divided, to be held by them and their heirs forever, as tenants in common. Also, all the rest and residue of my personal estate, I give and devise to the said James, Hetty Willis, Eliza and Harriet Rumsey Broom, daughters and son of my said son Abraham, and all the future children of my said son Abraham, forever; and it is my will and pleasure, and I do direct and devise, that my said son Abraham Broom, take into his possession all the real and personal estate devised to his said children, and out of the rents and profits thereof, educate and maintain his said children, and also any future children he may have, and the same so keep until the youngest child he now hath, and hereafter shall have, shall arrive and come to the age of twenty-one years. And I do nominate and appoint the said Abraham Broom guardian to all his children aforesaid, begotten or to be begotten, until they all, respectively, arrive to the age of twen- 344 LESSEE OF BROOM vs. THOMPSON AND YOUNG. ty-one years; and if my said son, Abraham Broom, should die lea- ving my daughter-in-law, Elizabeth Broom, and before the youngest of said children shall come of the age aforesaid, then it is my will and pleasure, and I do devise that my said daughter-in-law, Eliza- beth Broom, take into her possession the real and personal estate herein devised unto the children of Abraham Broom, and out of the rents and profits thereof, educate and maintain the said children and all future children by him, until the youngest child they now have or hereafter shall have, respectively, arrive to the age of twenty- one years ; and I do also, in such case, nominate and appoint the said Elizabeth Broom guardian to the said children, until they arrive to the age of twenty-one years/' James Broom left to survive him the said Abraham Broom the lessee of plff., and also his wife Elizabeth Broom and all the said children mentioned in the will. He has since had other children by the said wife, some of whom are deceased, but all of whom were or would have been of age at the commence- ment of this suit. The said Elizabeth is now dead. Defts. are in possession under the children of Abraham Broom the devisees. Wales for the plff. contended that the testator designed to give to Abraham Broom a life estate in the land; or what would be equiva- lent thereto, an estate during the possibility of issue. When was his right to the possession of these lands to cease ? Not until there was an impossibility of his having other children. He was to hold it du- ring the minority of all his children, born or to be born. This, we contend, entitles him to hold the possession still, he being still in full life, and capable of having issue. Bayard for defts. In the construction of a will the court will sometimes call to its aid the situation of the testator's family as illus- trating his intentions. In this case the son, Abraham Broom, was married to a woman who possessed the confidence and affection of the father. This appears from the face of the will. In connection with this fact it may be fairly collected from the will that the testator did not look to the issue by any other wife, but only meant to provide for the issue of that wife. All the children by this wife are of age : the father has not married again; and though it is still possible for him to marry and to have issue, shall this bare possibility deprive the real objects of the testator's bounty of the possession of these lands during all the lifetime of their father? I say the real objects of his bounty, for the profits of the land only were devised to Abraham Broom for the purpose of educating and maintaining these children. Additionally, the Court will have to say whether any legal estate whatever in the land is given to Abraham Broom that will enable him to sustain ejectment. Wales in reply: There is nothing in the will to restrain the pos- session, of this land in the hands of Abraham Broom to the minority of issue by his then wife. It is a forced construction. Abraham Broom was probably a son whom, for want of thrift or other cause, James Broom, the father, could not trust with an absolute devise of his property for life; he therefore, designing to give him a support in such manner as that his creditors could not take it from him, de- vises the land to the children, but the profits to the father. He could LESSEE OF BROOM vs. THOMPSON AND YOUNG. 345 not give him a life estate without subjecting it to his debts. It is admitted by Mr. Bayard that the words are large enough to include future children; nor is there any thing to exclude children by any future wife; as long therefore as there was a possibility of issue by any wife which he had or might have, Abraham Broom was entitled to the possession of this land. Harrington, Judge " The question in this case is whether Abraham Broom became en- titled under the will of his father to the possession of the lands, &c. devised to his children, and to receive the rents and profits, during the possibility of issue, i. e., during life ; or only during the minority of the youngest child who should be in actual existence. It is not probable that in making the devise the contingency of Abraham Broom living until the majority of his youngest child occurred to the testator; the probabilities were all against such an event taking place; but we are to look into the will and see if the terms indicate any plain intent of the testator to give to his son in this indirect way what would be equivalent to a life estate in lands actually devised to other persons. We speak of intent because, if this construction is to prevail, we must go beyond the words of the will and adopt it as necessarily arising from some design of the testator manifestly ap- pearing on the whole will. The words of the devise will not them- selves effect this object. The lands are devised, not to Abraham Broom, but to his children; to those who were living by name, and to such others as should be born, generally; they, therefore, and not he, were the especial objects of the testator's bounty; the possession of the land so devised was given to him for a specific purpose, to edu- cate and maintain the children until the youngest should arrive at lawful age; a purpose which might be accomplished, and has been accomplished, during the lifetime of Abraham Broom. It is true that Abraham Broom was benefitted by this devise, as it furnished a fund for the maintenance and education of children he was otherwise bound to maintain; and this appears to have been the object of the testator, to relieve him of this burthen; or, at least, to give him the profits of his children's property whilst he was at the charge of edu- cating or maintaining any of them, and this was reasonable that the avails of the children's property should be applied to their support. But beyond this no intention appears from the will, and no motive can be inferred, without going into loose conjecture, for giving the rents and profits of this property to Abraham Broom after the charge of his children had ceased, and diverting it from the primary and prin- cipal objects of the testator's bounty. It may be that he designed in this indirect manner to give a life estate to his son in the land devised to his grand children, but he has not expressed that intention apart from the words of the devise, nor do these words effect it. By that devise he is authorized to keep the property " until the youngest child he now hath, and hereafter shall have, shall arrive and come to the age of twenty-one years." It refers to the minority of a child or children in existence and not to the possibility of such children being born, as is evident from the expressed design of giving the cus- tody of the property to the father, that " out of the rents and profits 44 346 BAILEY vs. MCDOWELL. thereof " he should "maintain and educate his said children, (i. e. those then living named in the will,) and also any future children he may have." So long as the charge lasted, the possession of the pro- perty was to continue with the father as a means of discharging- it ; and it ceased on the youngest child in existence arriving at twenty-one/' The other judges concurred. Judgment for the defendants. Wales, for plaintiff. J. A. Bayard, for defendants. EDWARD T. BAILEY vs. SAMUEL McDOWELL. Lottery tickets are regarded as an article of merchandize, and properly charge- able in a book account. Cash not so chargeable. CASE. Narr. Common counts, goods sold, &c. &c. Pleas, non assump- sit, act of limitations and set off. Replications and issues. This was an action for lottery tickets sold to the deft, by plff. who is a lottery broker. The pltf. produced and proved his books, which were objected to on the ground that lottery tickets are not matters properly chargeable in account. The court required proof that the lottery office was licensed, and also that these lotteries wera authorized by law, and these being shown, a majority of the court admitted the book in evidence. The act of assembly authorizes the sale of these tickets, recognizes it " as a trade or business" to be carried on at a particular stand or place, and requires such stand to be licensed; the tickets, therefore, are a matter of merchandize. The book verified by the oath of the party is evidence to prove the sale and delivery of goods, wares and mer- chandizes, and other matters properly chargeable in an account. 8 Del Laws 243. Dig. 89. Judge Robinson dissented. A lottery ticket is but a promise to pay such prize as may be drawn opposite to its number ; it has no va- lue in itself, but merely the evidence of value, and in this respect it may be likened to cash, which, according to established decisions, is not a matter properly chargeable in a book account. Smith & Brown vs. McBeath, administrator of Lowber. Common Pleas, Kent, November T., 1811. It is perhaps more like a promissory note, the sale of which could not be established by an entry in the party's book of accounts. I cannot therefore regard lottery tickets as an article of trade and merchandize, but would require proof of the actual sale and delivery. It afterwards appeared that the tickets sold were in latteries autho- rized by this state, consolidated or united with lotteries granted by other states. The court required proof of the authority for all the lotteries so consolidated together. If any one of them is not duly WALKER vs. HUKILL. 347 authorized by a special grant, the tickets would all be illegal. The plff. failed to produce this proof, and was nonsuited. Wales, for plaintiff. J. A. Bayard, for defendant. IN THE CASE OF JOSHUA T. SEAL. A petitioner cannot have the benefit of the insolvent laws unless he be actually in prison. If the sheriff permit a voluntary escape, he cannot retake the prisoner. APPLICATION to be discharged under the insolvent laws. The petitioner set forth that he was imprisoned in the common jail of New-Castle county, on execution process, for debt; that he was insolvent; and prayed to be discharged on assigning his property for the benefit of his creditors. He returned debts to a large amount. When the case came up for hearing on the return of the summons, it appeared to the court that the petitioner was at large, walking the streets and attending the court as a spectator. He stated that he was at large by the permission of the sheriff. The court refused to go further into the case, and dismissed the petition. Dig. 306. The petitioner is not in prison, and cannot be there again, legally, on this process. The sheriff has permitted a voluntary escape, and cannot retake him. The chief justice mentioned Crocker's case, in Kent, and Mr. Hamilton that of John Low'ber, in New-Castle, where the same decision was made. Petition dismissed. J. A. Bayard, for petitioner. Wales and Hamilton, for creditors. HENRY WALKER, administrator of THOMPSON WILSON, vs. WILLIAM HUKILL. Lands cannot be inquired on before a sale of the goods. The inquisition must be objected to at the first term. RULE to show cause why the sale of deft's. lands should not be set aside. The objection was to the regularity of the proceedings. A fi. fa. had issued and was returned levied on goods per inventory, and also on lands: Inquiry held and not sufficient. A venditioni exponas then issued for the sale of the goods, and afterwards an alias venditi- oni exponas, upon which these lands were sold. It was stated that such had been the practice in New-Castle coun- ty ; but the court said it was different in the other counties, and ought to be different. The land should not be inquired on whilst the goods 348 ALLEN & Co. vs. BABCOCK. were unsold. The proceeds of the sales of goods might save the land from condemnation. Nor can any inconvenience arise from requiring the goods to be sold before an inquisition is held on the land, for the party can obtain his rule inquisition in vacation to be executed in thirty days, (Dig. 210 J and the interval between terms is generally about five months. The practice in this county is dangerous and illegal. It appearing also that this was the first term in which the deft, had an opportunity of objecting to the inquiry, the rule was made abso- lute. And the plff. then asked that the inquisition should also be set aside, which was granted. KICHAED F. ALLEN" & CO. vs. ELIZABETH BABCOCK. A lunatic may defend by next friend without having a commission. Lunacy may be set up against a note at least as between the original parties or against the first indorser. KULE to show cause why a judgment should not be set aside and the deft, let into a trial. The rule in this case was founded on an affidavit of Joseph K. Eyre, the brother and next friend of the deft., setting forth: That the above-mentioned judgment was obtained at the present term of this court, by default, in a suit of foreign attachment ; that the cause of action in said suit was two supposed promissory notes, for one thousand dollars each, drawn by Benjamin Ashburner to the order of Elizabeth Babcock, at four months, and purporting to be endorsed by her ; that at the time of the supposed indorsement, and for a long time before, the said Elizabeth Babcock was, and yet is, afflicted with mental derangement, and so far deprived of her reason as to be inca- pable of doing any business; that she is now confined in the Frank- ford hospital; and that the said supposed indorsements were made without any good or valuable consideration as far as regards the said Elizabeth Babcock. Bayard objected that the deft, or any one for her had no right to controvert this judgment without taking out a commission of lunacy. The court said there were two questions: whether a party could be permitted to stultify himself, and secondly, whether a lunatic can institute proceedings by next friend. There is some doubt whether a man can stultify himself by plea, but no doubt he can do so on evi- dence under the general issue. It might be impolitic to permit the defence of lunacy to an indorsed note after it is put in circulation; but this note is in the hands of the first indorser, and it was his duty to inquire not only into the solvency of the indorser, but into the lega- lity of the indorsement. This is a case also of foreign attachment, where the judgment is without appearance, or, so far as appears, without notice, it is a case therefore of a judgment without trial, and the motion commends itself to the favorable consideration of the court. As to the other question, a late author, the only one we have had an opportunity of examining, lays it down that a lunatic can sue MABEKRY & POLLARD vs. SHISLER. 349 or defend by next friend. Shelf 'ord on Lunacy, 395. 2 Law Library, 250. Rule absolute, (a) Judgment to remain as security. Booth, for defendant. J. A. Bayard, for plaintiff. MABERRY and POLLARD vs. GODFREY SHISLER, garnishee of BOWERS & GLASBY. A voluntary assignment in contemplation of insolvency and preferring cred- itors, made in Pennsylvania, will not be sustained by our courts as against a subsequent attachment by a citizen of this state of the insolvent's effects here. If by such assignment a benefit is reserved to the assignor to the prejudice of his creditors, it vitiates the deed. ATTACHMENT case. Case stated. Bowers & Glasby, merchants of the city of Philadelphia, being in insolvent circumstances, and in contemplation of insolvency, exe- cuted an assignment of all their goods and chattels, rights and cre- dits, to John B. Stryker, of said city, for his sole benefit, to secure the payment of the sum of $20,471 71 due and owing from the said Bowers & Glasby to the said Stryker; with power to sell, dispose of, assign, transfer-, &c., sue for, collect, &c. ; and as soon as sufficient money should be collected or realized from the said sales, &c. to pay the said debt and all charges, and also a commission of five per cent, for collection, the balance, if any, should revert and become payable to the said assignors, or be applied in any other manner they might direct. This assignment was dated 28th January, 1832, and at that time Bowers & Glasby were indebted to Maberry & Pollard, mer- chants of the same city, in the sum of $ . Maberry & Pollard prosecuted a writ of foreign attachment out of this court against Bow- ers and Glasby, returnable to the May term, 1832, under which writ the sheriff attached a debt due from Godfrey Shisler, a citizen of this state, to the said Bowers and Glasby. The attachment was laid in the hands of Shisler on the third of February, A. D. 1832. The question was Between the attaching creditors and the assignee, Stryker. Gilpin, for plff., contended That this was not such an assign- ment as our courts would recognize and enforce; an assignment pre- ferring creditors which by our law was regarded as not only fraudu- lent but criminal. Dig. 139. Precisely such an assignment, if executed in this state, would be the subject of an indictment. Shall then our courts lend their aid to execute and enforce an assignment which they would punish their own citizens criminally for making? (a) On a trial at the following term, when the jury returned into the box, the plff.'s were called and refused to answer. The court doubted whether, standing as this case did on the record, the plff. could choose to be non pros'd. ; they therefore took the verdict for the deft, and laid a rule to show cause why this verdict should not be set aside and judgment of non pros, entered. This rule was made absolute without argument. Judgment of non pros. 350 MABEERY & POLLARD vs. SHISLER. I need not be told that such an assignment is no offence against our laws because it is executed out of our jurisdiction; the party comes here to enforce it; he asks the aid of our law to carry out a transac- tion which with us is deemed fraudulent and criminal ; and he neces- sarily discloses the nature of the transaction in calling upon our courts to aid him. If an assignment out of our state be no offence against the laws of our state, so also such an assignment has no operation within our state, except by courtesy; a courtesy which will not be extended to a transaction not only against the general policy of our own law, but against the express letter of our statute law. As well might I be told that bigamy or polygamy would be tolerated here, and legalized by our courts, provided such marriages were contracted in a kingdom or country where it is lawful to have more wives than one. The contract is against our laws, and that is a sufficient reason for refusing in any way to give it any operation within our borders. But this assignment is fraudulent on the face of it. It not only pre- fers creditors, but it actually gives all the property of Bowers and Glasby to one creditor for his sole benefit. It is moreover a volun- tary assignment, not made in the course of a judicial proceeding under the insolvent laws, and is not, so far as we know, such an as- signment as would be sustained by the court and under the laws of Pennsylvania. Their decisions as to the effect of a discharge under their insolvent laws do not apply to this case. I submit, then, that the debt due from Shisler, being within this state and subject to the laws of this state, was not transferred by this fraudulent and illegal assignment to Stryker, and that the same is now subject to the at- tachment of the plff. 13 Mass. R. 146. Hamilton and Bayard, contra. There is no doctrine in the law better settled than that the lex loci contractus shall govern ; the law of the place in which the contract is made, and not that of the place where it is to be enforced, shall bind the parties, unless the contract itself has a special reference to the latter place. We are not prepared to say that an assignment or transfer of land here by a contract or instrument executed out of the state would be carried into effect here if made either against the letter or the general policy of our laws; but there is a manifest distinction between the two cases. Personal property has no situs, no location ; it always follows the person, and is therefore immediately affected by his personal contracts, wherever made. Here the parties live in Pennsylvania; the contract was made in Pennsylvania; the assignment executed there; it is a Penn- sylvania transaction altogether. By the law of that state such an as- signment is valid; by their law it passes all the goods and chattels, rights and credits of the assignor ; and if one of these rights happens to be a debt due from a citizen of our own state, our courts will recognize the validity of such an assignment in the transfer of such a debt If good there, it is good everywhere. Does our act of assembly prohibiting such assignments as prefer creditors affect the question ? It is made in reference to assignments here ; it is not pos- sible that it can extend to a transaction happening out of the state; that it can make an act criminal in Pennsylvania which is legal there. Such an assignment cannot be a breach of our laws ; and if it is in pursuance of their laws and valid there it ought to be sustained MABERRY & POLLARD vs. SHISLER. 351 wherever the parties go to have it executed. There is but one ex- ception to this rule: where the party goes out of the state with a view to evade the law and makes a contract for this purpose. Such a contract would be in fraudem legis, and ought not to be sustained. Curia advisare vult. Mr. 'Justice Robinson delivered the opinion of the court. Robinson, Justice. On the 28th of January, 1832, John Bowers and Alban H. Glasby and John B. Striker, all of the state of Penn- sylvania, executed a deed called an indenture, John Bowers and Al- ban H. Glasby of the one part, and John B. Striker of the other part, by which Bowers and Glasby (after reciting that by their account of the same date of the deed they stood justly indebted to Striker in $20,471 71, and that, in order to secure payment of a part thereof, they had executed to him two mortgages, with bonds and warrants of attorney, for $3,700, and to secure the balance of $16,771 71, exe- cuted a bond payable on demand, on which judgment had been entered and an execution issued, and that it was doubtful whether the mortgaged premises and the goods, wares and merchandizes in their possession were adequate to pay the full demand owing to Striker, or that if the same should be exposed to sale by the sheriff, it would be attended not only with additional expenses, but also probably, with a sacrifice of the property) bargain, sell and convey to the said Striker all the goods, wares and merchandizes in their store and pos- session, or elsewhere, and all debts due and owing and to become due to them, by bond, bills, notes, book accounts, or otherwise, as also the debts due and owing and to become due to them individually ; and they agree that Striker shall hold all the property granted, bar- gained and sold to his only use forever, being then put into the abso- lute possession of the same by the delivery of one piece of broad cloth in the name of the whole; and they give and grant to Striker full power and authority to dispose of all the goods, wares and mer- chandizes, at public or private sale, as soon as he might think proper, an inventory having been taken thereof; and they constitute and ap- point Striker their attorney to demand, sue for and receive all sums of money due and owing, and to become due, and on receipt thereof, sufficient discharges to give, and to compound and agree, by taking less than the whole in any case, as their said attorney might think proper; and it was agreed that so soon as a sufficient sum of money should be realized from the sale of the effects or the collection of the debts or moneys to enable Striker to liquidate the debt owing to him as aforesaid and pay all charges attending the disposal of the effects and the collection of the debts, and also a commission of five per cent, on the amount realized, then the balance, if any, should revert and become payable to the said Bowers and Glasby, or should be applied in any other manner they might thereafter direct, provided the same should not be inconsistent with the interest of the said Striker, or against the spirit and intention of the indenture, it being agreed that Striker should be entitled to receive interest on the whole of the debt due and owing to him from the date thereof, until his debt was liqui- dated. On the third of February, 1832, six days after this deed was executed, Maberry and Pollard, creditors of Bowers & Glasby, 352 MABERRY & POLLARD vs. SHISLER. and also citizens of Pennsylvania, sued out the above writ of attach- ment, and thereupon Godfrey Shisler, a debtor of Bowers & Glasby, was summoned as a garnishee, who pleaded nulla bona. Upon these facts, it has been agreed by the counsel for the plffs. and for the gar- nishee, that if the court shall decide that Striker is not entitled to collect and receive the debt due from Shisler, the garnishee, by vir- tue of the aforesaid deed, then judgment shall be rendered against said garnishee; but if the court shall decide that Striker is entitled as aforesaid by virtue of said deed, then judgment shall be rendered in favor of Shisler, the said garnishee. The counsel for the attach- ing creditors insisted, that as the deed preferred Striker to all other creditors, that it was void, by the act passed by the legislature of this state, in 1826, for the punishment of certain crimes and misde- meanors, in which is contained the following provision, relied on to support the objection : " If any person or persons, in contemplation of insolvency, shall make an assignment of their estate or effects, for the benefit of their creditors, and in and by such assignment shall prefer any one or more creditors, that every such assignment shall be deemed fraudulent and absolutely void, and the estate, goods, chat- tels, or effects, contained in such assignment shall be liable to be taken in execution or attached for the payment of the debts of such assignors, in the same manner and to as full an effect as if no such assignment had been made." This contract was made in Pennsylva- nia, and between citizens of that state, who entered into it expecting it to stand or fall according to the laws there. Generally speaking, the validity of a contract is to be decided by the laws of the place where it is made, but to this rule there are said to be exceptions. No people are bound to enforce in their courts of justice any contract which is injurious to their public rights, their morals, their policy, or that violates a public law. We do not consider the contract in this case as liable to any portion of these exceptions. Chief Justice Ellenborough, in 5 East. Rep. 131, is reported to have said that "We always import together with their persons, the existing rela- tions of foreigners as between themselves, according to the laws of their respective countries, except indeed when those laws clash with the rights of our own subjects here, and one or the other of the laws must necessarily give way, in which case our own is entitled to the preference/' One of the strongest cases to illustrate this rule is that in relation to the interest of money arising on contracts made in foreign countries. Thus in England the statue of Ann prohibited in positive terms taking more than five per cent, for the loan of money, and although it has been held that a breach of that law subjected the offender of it (when the offence was completed in England) to an indictment, yet it has been decided there that where interest arises by force of a contract made in America, agreeable to the laws here, the courts in England have been obliged to follow the American law on the subject. So it has been decided there that though the debt was contracted in England, but the bond taken for it in Ireland, to be paid at seven per cent, interest, it should carry Irish interest. This rule, however, is not adopted because the laws of the country where the contract is made have any binding force beyond the limits MABERRY & POLLARD vs. SHISLER. 353 of such country, but their authority in other states is admitted from policy and comity. The judges in Pennsylvania recognize the same influence of foreign laws in relation to contracts made in foreign states, as will be found in 4 Dallas, 325, 419, and it has been there decided that a debtor in failing circumstances may, by an assignment of his estate, prefer one or more creditors, provided that in all other respects it be untainted with fraud. 1 Binney, 502 . As the deed in question was made in Pennsylvania, between citizens of that state, we cannot decide that it is fraudulent and void, because it has preferred one creditor, and thereby seems contrary to the recited act of as- sembly. It would unquestionably be otherwise if it should be brought forward against any of our citizens as creditors, claiming by attachment or otherwise. There is an objection to this deed, which has not been noticed in the argument, although it appears on the face of the deed itself. After having provided for the payment of only one creditor, it is agreed "that the balance, if any, shall revert and become payable to Bowers and Glasby, the assignors, or applied in any other manner they might thereafter direct." The same rule which is applied to the validity of contracts applies vice versa to their invalidity; they are generally held void and illegal everywhere, if so where made. Those provisions of the thirteenth of Elizabeth, chap. 5th, that have any bearing on cases of this kind, have been admitted as declaratory of the common law, and held in force in Pennsylvania, and most, if not all, the original states of our union. By those pro- visions, all conveyances to delay, hinder or defraud creditors of their remedies, are declared to be clearly and utterly void, frustrate, and of none effect, any pretence, color, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding. It is manifest from the recital in the deed, that Bowers and Glasby, at the time of executing it, contemplated an approaching insolvency, because it is there admitted, that " it was doubtful whether the mort- gaged premises, and the goods, wares and merchandizes in their pos- session were adequate to pay the full demand owing to Striker;" and yet they, through the agency of their greatly favored creditor, under- take to deprive their other creditors of what should have been assign- ed to them, by securing to themselves the balance. Suppose this court were to decide in favor of the deed and dismiss the attachment, and there should remain a balance. To whom would Striker pay it? Certainly to Bowers and Glasby; or he would apply it to some of their relations, perhaps, as they might direct and would have the right to do according to the deed. His motive to perform what would be a duty under the deed, as a legal obligation, would be ex- cited by feelings of gratitude. That a debtor in such an assignment cannot make a reservation, at the expense of his creditors, of any part of his property or income, for his own benefit, is clearly established by numerous authorities. Chancellor Kent says, that "it has been supposed that such a reservation, if not made intentionally to delay, hinder and defraud creditors, would not affect the validity of the residue, or main purpose of the assignment, and that if the part of the estate assigned to the creditors should prove insufficient, they might resort to the part reserved by the aid of a court of equity; but later authorities have given to such reservations the more decided effect of rendering fraudulent and void the whole assignment ; and no 45 354 MABEREY & POLLARD vs. SHISLER. favored creditor or creditors can be permitted to avail himself of any advantage over other creditors under an assignment which by means of such a reservation is fraudulent on its face." From these views of this case we decide that the deed in question is in law fraudulent and void, and that Striker is not entitled to collect and receive the debt due from Shisler, the garnishee, by virtue of the said deed, and therefore render judgment against said garnishee. Story's Conflict of Laws, 201, 203 ; 3d Bacon, Abt. by Wilson, 294, 308 ; 2 Chitty, ch. 5.49, note (f); 1 Vez. sen. 428; 2 Atk. 382; 2 Kent Com. 457, 535; 1 Hopkins' Ch. Rep. 373, &c.; 6 Binney Rep. 338; 14 John. Rep. 465. Judgment for plffs. (a) Oilpin, for plaintiffs. Hamilton and J. A. Bayard, for Stryker. V Note by the reporter, (a) A contract shall be governed by the law of the place where it is made; if good there, it is good everywhere; and if illegal or void there, it cannot have effect anywhere. Within themselves, however, contracts have no force or efficacy out of the jurisdiction of the place where they are made ; nor can the law of that place give them effect elsewhere : hence, whatever force is given to them in the courts of other countries arises from comity, and is not a matter of right. Every nation may place what limitation it pleases on the exercise of this comity, and it is by most nations held a reasonable limitation to restrict its exercise to cases where it can be extended without prejudice to its own citizens. The rule is stated by Judge Story, from the English authorities, thus " The effects of a contract entered into at any place will be allowed ac- cording to the law of that place, in other countries, if no inconvenience will result therefrom to the citizens of that other country, with respect to the right which they demand." (Story's Com. 320.,) It is also true that personal property has no situs, but is by a legal fic- tion deemed to be with the owner, and affected by his contracts wherever it may in fact be found. Yet this is so only by a legal fiction, which yields whenever it is necessary for the purposes of justice to regard the actual location of the property. This general rule, therefore, is subject, in the present case, to precisely the same modification with the other: " if no inconvenience will result to the citizens of this state with respect to rights which they may demand," the property here in controversy ought to be regarded according to the legal fiction, as being attached to the domicil of Bowers & Glasby; but otherwise it should be treated ac- cording to its real location in this state. The reason is the same as in the former case. The laws of Pennsylvania, under which the assignee of Bowers and Glasby claims this property, can have no operation here ; the judgments or decrees of their courts cannot reach it. On the contrary, it is entirely under the jurisdiction, ancf subject to the disposition and control of our laws and tribunals. When a foreigner sends his property from the place of his own residence, he voluntarily subjects it to the laws of the country where he so places it ; and by his own consent, as well as on other principles, it becomes peculiarly subject to that jurisdiction. What the law protects it has the right to regulate ; and in so regulating it, if our courts recognize and give effect either to the lex loci contractus or the lex domicilii, it is on a principle of comity, and subject to such restrictions as the rights and interests of our own citizens require. CRAWFORD ET AL. vs. SHORT ET AL. 355 ALEXANDER CRAWFORD et al. vs. ANN SHORT, JAMES SHORT et. al. Sec. 3 of ch. 106, 8 v. D. L. 92 is constitutional. An appeal from the orphans' court cannot be heard without a statement of the points decided. It is the duty of the party to apply for such statement. Effect of the dismissal of an appeal without prejudice. The superior court cannot send a mandamus to the orphans' court to compel the signing of a bill of exceptions. APPEAL from the orphans' court of Newcastle county. Record. In the case of the return of partition and valuation of the real estate of Abraham Short, deceased. July term, 1830. Decree The effect of assignments of property by operation of law, as in trans- fers under bankrupt and insolvent laws, has been much discussed in the courts of England and of this country, and the result seems to be a dif- ferent doctrine on this subject in the two countries. In England it is held that assignments under the bankrupt laws transfer moveable prop- erty, wherever it may be situate, applying the principle that personal property has no locality, that the assignment under the bankrupt laws transfers all the bankrupt's title as fully as he might do by a voluntary assignment or sale, and that the assignees become the lawful owners of it, to be administered for the benefit of the creditors. And they give the same effect to assignments made under the bankrupt laws of other coun- tries, without any distinction as to citizens and foreigners. Thus an at- tachment of the property of a foreign bankrupt by an English creditor, after bankruptcy, will not be sustained against the assignment, with or without notice. (Story's Com. 345. ) And this principle is not without support in this country, (Goodwin vs. Jones, 3 Mass. R. 517; Holmes vs. Remsen, 4 John C. R. 460,) but the weight of authority is the other way. And although it was sustained by Chancellor Kent, in the case of Holmes vs. Remsen, he admits, in the second volume of his Commentaries, page 406, that " it may now be considered as a part of the settled jurisprudence of this country, that personal property as against creditors has locality, and the lex loci rei sitae prevails over the law of the domicil with regard to the rule of preferences in the case of insolvents' estates." A prior as- signment in bankruptcy, under a foreign law, will not be permitted to prevail against a subsequent attachment by an American creditor of the bankrupt's effects found here ; and our courts will not subject our citizens to the inconvenience of seeking their dividends abroad when they have the means to satisfy them under their own control. It was so decided in Maryland in BurTc vs. McLean, 1 Harr. & McHenry, 236, and Wallace vs. Patterson, 2 Harr. & McH. 463; in Pennsylvania, in Milne vs. Moreton, 6. Binn Rep. 353, and Mulliken vs. Aughinbaugh, 1 Penn. Rep. 117; in North Carolina, (2 Haywood's Rep. 24',) South Carolina, (4 McCord's Rep. 519;^ Connecticut, (Birby's Rep. 313 ;) and also in the supreme court of Jjie United States, in Ogden vs. Saunders, 12 Wheaion R. 213. The case of Holmes vs. Remsen has also been ably questioned in the su- preme court of N'ew York, in a case at law between the same parties. 20 Johns. Rep. 254. The law, therefore, is fully settled, in this country, against the ad- mitted doctrine of the English courts, that an assignment under the bankmpt or insolvent laws of a foreign country will not transfer the bankrupt's property, including choses in action, in this country so as to prevent a subsequent attachment by the bankrupt's creditors here. 356 CRAWFORD ET AL. vs. SHORT ET AL. in relation to costs. Appeal prayed and granted. 25th September, 1832. Decree approving and confirming the return of freeholders. Appeal prayed and granted. In superior court, November term, 1832. Appeal from the aforesaid decrees received and filed. "And But in the case before the court both the attaching creditors and the assignees were citizens of Pennsylvania. It was altogether a transaction between foreigners. Supposing such an assignment to be valid according to the laws of that state, and that its effect there would be to transfer all the property of Bowers & Glasby to Stryker, the question would arise whether there was any reason why our courts should not, in the usual comity of nations, give it the same effect here as between citizens of that state. This point was not decided, it being rendered unnecessary by the terms of the assignment; and it may be considered as still open and worthy of grave consideration, notwithstanding the intimation which the court gave of the inclination of their opinion. A distinction has been taken in some of the cases on this subject be- tween voluntary conveyances and conveyances in inviium, by the mere operation of law, as in cases of bankruptcy and insolvency. (Kaims on Equity, b. 3 ch. 8, s. 6 ; Story 6 Com. 346.J But it does not appear to be established. Chaiicellor Kent, in Holmes vs. Remsen, thought himself bound to give effect to the assignment, " because it is equivalent to a vol- untary act of the party over his own property." " Every man's assent is presumed to a statute." And Chief Justice Parsons, in Goodwin vs. Jones, " considered the assignment under the bankrupt laws as the party's own act, since it was in the execution of laws by which he was bound, and since he voluntarily committed the act which authorized the making it." The distinction is not between a bona fide sale for a valuable consid- eration (which would certainly be good against a subsequent attaching creditor) and a statutory transfer; but it is between a voluntary assign- ment in contemplation of insolvency and a compulsory assignment under the operation of the insolvent laws; and no such distinction appears to be sustainable on principle or sustained by authority. On the contrary, the supreme court of Massachusetts decided, in Ingraham vs. Geyer, (13 Mass. Rep. 146 ) that a voluntary assignment by a debtor of all his prop- erty, made in Pennsylvania, for the benefit of creditors generally, should not prevail over a subsequent attachment, because such assignment would be void by the laws of Massachusetts, if made there, as being in fraud of creditors. And Fox vs. Adams, 5 Greenleaf's Rep. 245; Oliveir vs. Townes, 14 Martin's Louis. Rep. 93; and Norris vs. Mumford, 4 Martin's Louis, R. 20, are to the same effect. The principal case was much stronger. It was not the case of an as- signment for the benefit of other creditors than a single preferred one; and any assignment preferring creditors is, by the express terms of our act of assembly, declared to be fraudulent and void, and the property in- tended to be transferred thereby remains liable to be taken in execution or attached for the payment of the assignor's debts, in the same manner as if no such assignment had been made. (Dig. 140.,) Can our courts in any manner give effect to such an assignment ? It is not pretended that our laws can make this transaction illegal where it was executed, if by the laws of that place it is authorized ; but if the aid of our courts is in- voked to give it effect within our jurisdiction and over property which it cannot reach unless our courts recognize its validity here, could they da so consistently- with a just regard to our own laws ? In Forbes vs. Coch- CRAWFORD ET AL. vs. SHORT ET AL. 35? now, to wit, this eleventh day of December, 1832, upon opening the above cases to the court, it appearing to the court that no instrument in the nature of a bill of exceptions presenting fairly and fully the point or points decided, for which said exceptions were taken, had been signed and sealed by the said orphans' court, or one of the judges thereof: It is ordered by the court that the appeals be therefore dis- missed without prejudice, and the record remanded to the court be- low." In the orphans court, March 7, 1833. "And now, to wit, this first day of March. A. D. 1833, an appeal is prayed by Alexander Crawford, in right of his wife, Kebecca, and by Jacob Moore, in right of his wife, Margaret, from the order and decree of this court of Sep- tember 25th, 1832, approving and confirming the return in this cause, which is refused by the said court; and the said parties so appealing also pray the said court to sign and seal an instrument in the nature of a bill of exceptions, presenting fairly and fully the points decided for which the said parties except to the said order and decree, which is refused by the said court, on the ground that a former appeal has been taken in the cause and dismissed by the superior court." Bayard, for appellants. This case again comes up before the court under very peculiar circumstances. The appeal was dismissed last term, without prejudice, for an informality in the record. We went down to the orphans' court to get the record completed, but the pre- siding judge, who sat alone, refused to sign a bill of exceptions, and has placed that refusal and the reasons for it on the record. Having done what was in our power to comply with the act of assembly in this behalf, and failed to procure the necessary document, we return to this court for remedy. We insist that the right of appeal is se- cured to us by the constitution; we have not had that right in this case: and if the forms of proceeding as prescribed either by the prac- tice of the court or the act of assembly prevent our enjoying this right to its full extent, they ought to be disregarded or changed. I shall enquire, therefore, first, whether the third section of the act to carry into effect the amended constitution, (8 vol. 92) making it necessary for a party to procure from the judges of the orphans' court a paper in the nature of a bill of exceptions as the foundation of an appeal, be itself constitutional; and second, what was the effect of the dis- missal of the first appeal by this court. On the constitutional question : Power is inherent in the body of the people: all bodies, whether legislative, judicial or executive, act by a delegated power, and have none other than such as are delegated or essential to the exercise of those that are granted. The judiciary rane, 2 Barn & Creswell 448, 471, Mr. Justice Best says that in cases turning on the comity of nations it is a maxim, that the comity cannot prevail in cases where it violates the law of our own country, the law of nature, or the law of God. And all the authorities sustain the position of Chancellor Kent, (2 Com. 461) " that when the lex domicilii and the lex fori come in -direct collision, the comity of nations must yield to the positive law of the land. In tali conflictu magis est ut jus nostrum quam jus alienum servemus." And the supreme court of Louisiana has adopted the rule, that whenever, in a conflict of laws, it is a matter of doubt which should prevail, the court which decides will prefer the law of its own country to that of the stranger. (\1 Martin's Rep. 596.) 358 CRAWFORD ET AL. vs. SHORT ET AL. has the right to construe these delegations of power, and to say wheth- er the legislature has exceeded those which properly belong to it. The constitution gives the right of appeal in this case. The legisla- ture cannot qualify or restrict this right by imposing any terms on a party which it is not in his power to execute. I admit that the legis- lature may limit the exercise of this right to a certain time, or pre- scribe the form of its enjoyment, but they must still leave to the party the full power of appeal. Section 3d of the act under consideration restricts the right of appeal to points of law : the constitution gives an unlimited right of appeal. The orphans' court decides as well on the facts as the law, and so must the court of appeal. The lw com- pels a party to procure a bill of exceptions: the constitution has no- such pre-requisite. The signing such bill is a matter in the discre- tion of the judge, which the party cannot control. This constitu- tional right therefore is made to be dependant on the will of the judge. The legislature has no more power to impose this restriction than wholly to take away the right of appeal. Cannot a meaning be given to this act which will not conflict with the constitution? If it can, the court will so construe it ; if not, they will nullify it. The meaning I would give to it, then, is, that it is the privilege of a party to obtain a bill of exceptions stating the points of his case, but not his duty. It may frequently be convenient to do so, and in further- ance of his right of appeal, but not obligatory in all cases. The law imposes an obligation on the judge, when the party desires a state- ment, to give it; and not on the party to obtain it, or lose his right of appeal. The question, then, is, whether the refusal of the judge to sign the exceptions can deprive the party of his appeal ; and, if the refusal ap- pear on the record, whether this court will not hear the appeal with- out a bill of exceptions. The praying an appeal below is merely formal; the court above has the decision of the right of appeal; and if this court differs from the orphans' court, where the appeal has been refused, what is to be the result? It must of necessity go on to hear the case; for it has no power to send a mandamus to the court below, either to grant the appeal or to sign the bill of exceptions. In determining the right of appeal in this case, we are to consider, Secondly, whether the dismissal of the former appeal in the man- ner it was dismissed by this court did prevent another appeal. There is a limitation of the right of appeal to one year after the decree, (Dig. 422) and I admit the right of the legislature to make such a limitation, but our second application here was within the year. What was the former dismissal? A dismissal "without prejudice" for an informality in the record, which prevented a full hearing of the cause. What is the meaning of " without prejudice? " Certainly without prejudice to some right the party then had. Now the only right he had was that of appeal, for the decree below was final as to the suit, unless reversed; the dismissal then was qualified expressly to save the right of appeal. Wales, for appellee. The constitution establishes the general right of appeal, subject, as all its general principles are, to be carried out, and the mode of its enjoyment prescribed, by legislative provisions. The counsel admits that in many respects the legislature can limit and control this right. But he has argued here as if the appeal had CRAWFORD ET AL. vs. SHORT ET AL. 359 been denied; as if the appellants have never had an opportunity offered them of enjoying this their right of appeal. Now they have had one appeal fully granted, brought up and dismissed by the appel- late court. The ground of that dismissal could not be inquired into by the orphans' court. That court saw the case of an appeal prayed, granted, had and ended by dismissal. It heard an application for a second appeal, and decided, as it was bound to do, that the party had no right to a second appeal, and that the case was now at an end. The question then is, whether the orphans' court erred in this deci- sion; and again, whether the decision on such a matter of practice, the right of appeal, is itself the subject of appeal. Rogers, on the same side. First. Is the party here entitled to a second appeal? The constitution gives him a right to an appeal. Has he not enjoyed that right? If he neglected to prosecute his ap- peal, or brought it forward in an improper manner, it does not follow that he must have another opportunity to do so. The other appeal was dismissed because a bill of exceptions stating the points decided had not been signed. Has it yet been signed? Is the party in any better condition now? Where is his bill of exceptions? And does not the case fall within the authority from 3 Term Rep. 776-7, cited by the president of the orphans' court on refusing the second appeal. That was the case of an appeal defectively taken, or not properly prosecuted; yet it was held to be conclusive. Second. Is the act of 1832 constitutional? The constitution con- sists merely of fundamental principles, which depend on legislative enactments to carry them out. Thus fhe seventh section of sixt< article. The superior court has power to reserve questions to be heard in the court of appeals. But the legislature has prescribed, and the courts have recognized, the form of reserving these ques- tions. So in the exercise of appellate jurisdiction from chancery; the whole form of taking up the appeal is regulated by act of assem- bly; and if it were not so regulated it would be competent for this court by its general rules to prescribe these forms. If this court is to exercise an appellate jurisdiction from the or- phans' court, it must exercise that jurisdiction upon the matters de- cided below. The appeal is not given except as to matters decided in the court below. Now is it not essential to prescribe some form of ascertaining what this decision was; what matters were adjudicated in the orphans' court ; and was it not competent for the legislature to prescribe such forms as would put this court in possession of the points decided there? The act does not take away any right of ap- peal, but it enables the party to exercise that right in the only man- ner he can properly bring his case before the appellate court. If he has neglected to pursue this course, it is not the fault of the law, nor of the constitution, one of which has secured to him the right, and the other the means of enjoying the right, of appeal. Read; jr., in reply. In a case in the orphans' court relating to real estate, and where the president sat alone, a decision was made from which we appealed. The right of appeal in such a case is not ques- tioned. The appeal was taken, and the moment it was opened in the appellate court that court dismissed it, though without prejudice, because no paper stating the points decided below had been signed and sent up. We -returned to the orphans' court and asked it to 360 CRAWFORD ET AL. vs. SHORT ET AL. supply this deficiency, which was refused because a former appeal had been taken and dismissed. The question then is, will not this court hear the appeal without such a paper? If we have not once had an appeal in this case, we are entitled to it. What is an appeal? An opportunity of having a case reheard on all the matters disclosed in the court below, and in relation to which that court decided. Has there ever been such an appeal here? No. The informality of the record, an informality of the court as well as of the counsel, pre- vented even a hearing on that appeal. And to avoid any prejudice to the party appellant from the action of the appellate court it expressly dismissed the appeal without prejudice. These words are nugatory and idle if the dismissal concluded this case. The meaning of such a qualified dismissal is well ascertained in chancery. It decides noth- ing, prejudges nothing, asserts or denies nothing, but leaves the parties in the full enjoyment of all their rights. Standing thus as if no action on the case had taken place in this court, we applied to the orphans' court to perfect the record. That court considered it an ap- plication for a second appeal, and refused it. From that decision we have the right of appeal; and having the decision and the ground of it on the record, we ask this court to reverse it, and to proceed in the hearing of the case at large without the bill of exceptions which it now appears we cannot procure. The case cited from Term Reports was a general dismissal of the first appeal on hearing. The applica- tion was actually for a second appeal. The opinion of Mr. Justice Buller proves this. Curia advisare vult. Harrington, J. The preliminary question in this cause is, whether the third section of the " act to carry into effect the amended constitution and for other purposes " is constitutional. If it be so, this case is at an end, for the appellants are now in no better condition than they were when last in court, and when their appeal was dis- missed for want of such a statement of the points decided by the or- phans' court as is required by that law. And here we are met, in lim- ine, with the inquiry, how is it possible for this court to set in appeal to revise the decisions of the orphans' court without knowing, and with- out the means of knowing, what those decisions are? It is very true that the constitution secures to the party a right of appeal to this court from the decisions of the judges of the orphans' court " in all matters involving a right to real estate, or the appraised value or other value thereof," and in all cases, from the decisions of either one of the judges of that court sitting alone : but it is obvious that for the enjoyment of this right some provision was necessary to be made to put the court of appeal in possession of the decisions which were appealed from. The appeal is not in the nature of a new trial or general rehearing of the case before a new tribunal ; but it is sim- ply the right of having the decisions below examined by another court on precisely the same state of facts as was presented to that court. This necessarily requires a statement to be made to this court of the points decided by the orphans' court, and the constitution be- ing silent on the subject, it is necessarily left to the legislature to make such arrangements as may be requisite for the perfect enjoyment of this right of appeal. The section of the law under consideration is an attempt to effect this object; it may be imperfect, and thus have CRAWFORD ET AL. vs. SHORT ET AL. 361 failed to procure in every case the means of enjoying this constitutional right; but this only proves that further legislation is necessary, and not that the attempt already made is unconstitutional because it may be imperfect. It stands upon the same footing with the " act concern- ing bills of exception, cases stated, and verdicts,'' which regulates the practice in writs of error sent to the court, and which must neces- sarily be unconstitutional if the section now under consideration is so. I think they are both in affirmance and in furtherance of the consti- tution, and that the legislature had the right, and it is their duty, to make suitable, and, if necessary, further provision for securing the enjoyment of this right of appeal. The constitution furnishes, and can furnish, but a general outline of rights and duties and powers, leaving matters in detail to be regulated by legislative provision. And wherever a right is secured by the constitution, but the means of its enjoyment are not pointed out, it is left to the legislature to furnish them. In this case it has done so. It has made it expressly the duty of the judge, " at the request of the party appealing," to sign and seal an instrument, in the nature of a bill of exceptions, presenting fairly and fully the point or points decided, for which the exception is taken. An appeal was taken from the original decision of the chancellor, but no statement of the points decided was signed by him, nor was any application made to him for this purpose. It was his duty to sign it only at the request of the party appealing, and if he is now deprived of his appeal, it is from his own neglect. We come now to consider the second decision of the orphans' court, refusing an appeal, and refusing to sign an instrument in the nature of a bill of exceptions after this court had dismissed the first appeal. We have still no statement of the matters involved in the first decision, and no such statement of the point finally decided as is required by the act of assembly; but we have it stated on the record that the refusal by the orphans' court of the second application for an appeal, and of the only application that was made for a statement of the points decided, was on the ground that a former appeal had been taken in the cause and dismissed by this court. The question then arises, whether this court would take up an appeal without the state- ment required by the act of assembly in a case where the record otherwise shows the points decided, and where it appears that the judges of the orphans' court had refused to sign a statement of the points. I should say without hesitation that it would ; for the failure to get the legal and proper statement does not in such a case arise from the laches of the appellant, and this court is enabled from the record otherwise to ascertain the matters actually decided below. But not so where the record does not show the points decided, or where the failure to get the legal and proper evidence of the decision is entirely owing to the neglect of the appellant. In tlfe case of Barns vs. Murray and wife, in Sussex county, last term, the ap- pellant had his appeal dismissed for the want of a sufficient statement of the points, though a statement was signed and sent up; and this court afterwards refused to receive another statement which the judge had signed to amend the defects of the first. The party lost the benefit of his appeal by his own laches. So in this case it was the neglect of the party in not procuring a statement at the time he took his appeal, and we have not the means of ascertaining what was 46 362 CAZIER vs. BLACKSTOCK. decided below, or what is appealed from. We cannot try such an appeal. We could rehear his case, but it would not be a review of a previous decision, but a new trial of the case. This is not what was designed by the right of appeal granted by the constitution. Whether the last decision of the orphans' court is correct or not, the appellants are not here in a condition to have their appeal from the original decision tried, which is their object. I have looked some- what into that question, and though I do not think it necessary to- decide it, I will say that the case cited from 3 Term Rep. is a strong authority in favor of the chancellor's decision. It was an application for a mandamus to the quarter sessions to try an appeal against a conviction by a justice of the peace. The statute gave the right to appeal within six months, on giving notice of the intention to appeal and giving security, within four days after the notice, to prosecute the appeal. Notice of the appeal was given, and also security; but, it appearing that the security was not entered into within the four days, the appeal was disallowed. The appellants within the six months gave a second notice and entered into security in due form; but the sessions refused to try the appeal, being of opinion that the appellants were concluded. The court refused the mandamus. Lord Kenyon said that after the appeal was lodged and adjudged by the justices to be informal they were functi officio and could not take cognizance of a second appeal. Ashurst went on the ground of the neglect of the appellant, and Buller thought that even the first notice without the dismissal precluded a further appeal. Grose, J. concurred. Now, whatever may be the effect of this court having dismissed the first appeal without prejudice, it was a decision that the appeal was informal, and goes the full length of the authority cited. I am of the opinion that this court ought not to entertain the ap- peal. The other judges concurred generally. Appeal dismissed. Mr. Bayard moved to reinstate the appeal, and for a rule to show cause why a mandamus should not issue to the president judge of the orphans' court, commanding him to sign and seal an instrument in the nature of a bill of exceptions, presenting fairly and fully the" points decided; which was refused, without argument. The court referred to the case of Worknot, use of Earle, vs. Mitten, in the late high court of errors and appeals, in which that court decided that it had not the power to send a mandamus to the supreme court. So Mr. Bayard took nothing by his motion. J. A. Bayard and Read, jr. for appellants. Wales and Rogers, for appellees. JOHN CAZIER vs. ROBERT BLACKSTOCK. Notice to the counsel on record of meeting of arbitrators held sufficient under circumstances. As a general rule, notice must be given to the party. RULE to show cause why an award should not be set aside for want of notice. HAKTWELL vs. MCBETH. 363 Notice of the meeting of the arbitrators had been given to the deft.'s counsel, but not to the deft, himself. Mr. Booth, the counsel of record for Blackstock, admitted that notice had been served upon him, but he contended that notice to the party was necessary, and such had been the uniform practice. The plff. filed an affidavit that the deft, was out of the state, and has been for a long time, and that he could not ascertain where he resided. The suit was docketed by the counsel of Blackstock and referred by consent. This reference was afterwards, on motion and by consent, stricken out, and the case again referred to the present arbitrators. In all these proceedings the deft., Blackstock, had acted by his counsel, without personal appearance, and he ought not now to be permitted to make this objection to the award. Under the circumstances the court discharged the rule, stating at the same time, that as a general rule of practice, notice to counsel would not be considered sufficient. See Simian vs. Bernard's admx. post. Eule discharged. Read, jr. for plaintiff. Hamilton and Booth, for defendant. JOHN HAETWELL, for the use of HENEY HAETWELL vs. WILLIAM H. McBETH and ALEXANDEE McBETH. A blank indorsement does not absolutely transfer the property in a note. Either indorsee or indorser may sue upon it. The indorser may turn it into a special indorsement, and then he only can sue. The want or failure of consideration may be given in evidence as between the original parties to the note. CASE. JSTarr. Pleas, non assumpsit, payment, set-off and act of limitations. Issues. The plff. counted on the following note: " Philadelphia, February ISth, 1832. "$425 33-100. " Three months after date we promise to pay to the order of John Hartwell, four hundred and twenty-five 32-100 dollars, without de- falcation, for value received. (Signed) WM. H . McBETH, ALEX. McBETH/' The note, when produced, had the following indorsements : " J. Hartwell, T. E. Hartwell, II. Wright, W. Van Amringe." Bayard moved a nonsuit. By the indorsement of a note both the equitable and legal interest pass to the indorsee. This note having been indorsed by John Hartwell, he has no longer any interest in it, and cannot sue upon it, nor can Henry Hartwell, the indorsee and present holder, turn himself into a cestui que use. The suit should be brought in his name, as the party having the legal title to the instrument. Hamilton. The indorsee of a note is not bound to sue in that character, but may use the name of his indorser. In the case of the 364 ELLIOTT vs. BBINDI.LY AND CHANDLER. assignment of a bond, the assignee may sue in the name of the obligee for his own use, without stating the assignment. It was so decided by the court of common pleas in Broom vs. The Female Benevolent Society. Bayard* The case of a bond with warrant of attorney to confess judgment stands on different ground. The warrant is usually to ex- ecutors and administrators seldom extends to assigns. The party, therefore, would have to use the assignor's name to avail himself of the warrant. A majority of the court refused the nonsuit, the chief justice dis- senting. The majority agreed that a blank indorsement was sullicient to transfer the right of action to the indorsee, but while it remains in blank he may consider himself as a cestui que use, or servant, and the action may still be brought in the name of the indorser. If the indorser turns the blank indorsement into a special one, as he may do, the property in the note is then transferred to him, and he only could bring the action. Chitty on Bills, 174; Salk. 130; 12 Mod. 193 ; Selw. N. P. 331-2, Treating this as an action between the original parties to the note, the court permitted evidence to be given of a want or failure of the consideration, and the plff. finally submitted to a nonsuit. Chitty on Bills, 91. Hamilton, for plaintiff. J. A. Bayard, for defendants. JOHN G. ELLIOTT vs. JAMES J. BRIXDLEY and WILLIAM F. CHANDLER. Referees may try the grade of a debt claimed against a decedent's estate, am report its order of preference in the application of assets. DEBT on administration bond. Narr, suggesting a devastavit. Pleas, nil debet, plene adminis- travit, debts outstanding of superior dignity, and no assets ultra. Bayard. Elliott brought a suit against the present defts. as admin- istrators of Caleb Kirk, for wages as a laborer on a farm; that suit was referred, and the referees reported " that there is a balance due John G. Elliott from the estate of Caleb Kirk of $191 57, accruing from hire and claiming a preference under the law of this state, being a less sum than one year's wages." Dig. 225. Judgment was ren- dered on this award, and the administrators having refused to pay, the present action is brought suggesting a devastavit. The fact that this claim is of a character preferred by the act of assembly to other debts is established by the award itself. It is apparent that they had this subject before them and examined into the nature of the claim with a view to determine its grade. They were competent to decide this question, and the award is conclusive as to it. Wales. The first question is whether the character or grade of the debt or the order of preference was submitted to the referees; if not ROBINSON vs. MITCHELL & QUINN. 365 so submitted, they could not try it. The rule of reference is to ascertain an amount claimed to be due, and not to try the character of the demand. In the next place, it is not certain that they did in point of fact ascertain the nature of this claim. The note appended to the report, that it was claimed as a preferred debt, does not show that it was so decided. Bayard. The rule of reference submits " all matters in controversy between the parties." The referees have expressly the power to find assets. They may therefore find the nature of the debt in order to show what assets are applicable to it. The expression is not that the pltf 1 . claimed a preference, but that the tcages claimed a prefer- ence by law. The court were of opinion that the referees meant to decide this question, and that they were competent to decide it. They might find a sum due on bond, or for rent, or for wages; and if the party meant to controvert the fact, or to object to the award for stating ex- traneous matter, he should have done so before the confirmation. Verdict for plaintiff. J. A. Bayard, for plaintiff. Wales, for defendants. LEWIS H. ROBINSON vs. JAMES MITCHELL and EDWARD QUIXN, trading under the name and firm of MITCHELL & QUINN. The prayer of a note cannot indorse it over after it lias been attached in the drawers' hands. CASE. This was an action on a promissory note made by Mitchell & Quinn in favor of Edward Marshall, and endorsed by him to the plff. Robinson. The note was payable on demand. The pleas were first, non assumpsit; second, payment; third, " that the amount of said note was attached in the def t.'s hands by virtue of a writ of fi. fa. attachment at the suit of the Farmers' Bank against the said Edward Marshall, the indorser, before the said note was indorsed to plff. : and that they had paid over the amount to the said Farmers' Bank according to the judgment of the court, on said attachment, against them as the garnishees of the said Edward Marshall." To this third plea there was a general demurrer and joinder. Judgment for defts. Gilpin, for plaintiff. J. A. Bayard, for defendants. 366 MORRISON vs. W. & K. TURNPIKE Co. JAMES MORRISON vs. THE WILMINGTON AND KENNET TURNPIKE COMPANY. Justices have not the power to take confessions of judgment without previous proceedings; except in the case of a judgment note. CERTIORARI. Record. " Action for tolls. Demand, $31 81. November 5, 1828. The deft, appears and confesses judgment for debt, thirty-one 81-100 dues and costs. $3181." Exception. That the justice had no power to record a confession of judgment without process. Wales. This is a special jurisdiction, limited to the grant. We must look to the law, therefore, for the justice's authority. The act gives to justices of the peace jurisdiction in certain claims, and pre- scribes the form of exercising that jurisdiction on suits regularly in- stituted either by capias or summons, and so proceeding to judgment. In the course of such proceedings the justice has authority to render judgment either by default or on confession. These preliminary forms are all useful checks on the magistrate. If he may enter a judg- ment without previous process, such judgment depends altogether on the truth of his own statement. No previous proceedings; no cause of action filed ; nothing spread upon the record by which you can test either his jurisdiction or the correctness of his judgment. He says that the deft, authorized him to record such a judgment, and there ia an end to all further inquiry. If the legislature meant to confer this power, they would undoubtedly have provided that the party confess- ing the judgment should sign it. The special authority given to the justice to enter judgment without process, on notes containing a war- rant authorizing an entry of such judgment, proves my position. 1 Binney R. 105; Allworthy vs. Dawson; Dig. 337. If this power, nay, the much greater power of entering judgments not only on notes and other written instruments, but on verbal confession, had ex- isted before, there would have been no necessity for this special pro- vision in the case of judgment notes. And the grant of authority even in this case is specially guarded; the note shall be filed with the justice, and the deft, is permitted, on denying it by affidavit or set- ting forth any just defence, to have the judgment set aside and be let into a trial of the whole case. Hamilton. The objection made here is to the truth of the record, which can only be taken in a different proceeding: an action against the justice for a false return. The exception is nothing else than a denial of what the justice has certified to; namely, that the deft, did appear before him in person and confess a judgment for this amount. Which will the court take? The deft.'s denial or the justice's cer- tificate. And it is not competent for the party himself to set up this objection. He cannot controvert his confession; he is concluded by his own act. It was simply the case of parties appearing before a justice, to save expense waiving all previous proceedings, and the deft, confessing a judgment for the amount actually due. Consensus tollit errorem, if there was any error in the case; and he ought not now to be permitted to retract that consent. BAILEY vs. SEAL'S SPECIAL BAIL. 367 The court. If a party could appear and confess judgment before a justice in person, he could also appear by attorney, which, before the late act of assembly, we all agree he could not. That act does not extend beyond the case of a written warrant authorizing the entry of judgment, and does not give power to enter judgment otherwise. It is also specially guarded to afford relief where the warrant is denied. The question is important in principle, considering the nature of this jurisdiction. It cannot be derived from the agreement of the parties. Consent cannot give jurisdiction. If it is to be derived from the law, it ought to be expressly given. The grant of jurisdiction to these inferior tribunals should be taken strictly. In our opinion, the power to take confessions of judgments without previous proceedings is not given, except in case of note and warrant, and we think it would be a dangerous power. Judgment reversed. Wales, for Morrison. Hamilton, for the turnpike company. JOHN BAILEY vs. JOSHUA T. SEAL'S Special Bail. A discharge under the insolvent laws of New York prevents the arrest of the deft.'s person here, if the debt arose there. Special bail relieved in such a case. RULE to show cause why an exoneretur should not be entered on a bail piece. The cause of action in this case, as against the deft. Seal, was a note drawn in the state of New-York and indorsed by him to plff. on which judgment had been recovered in this court. (Ante 232.) After the indorsement of that note Seal was discharged under the insolvent laws of New-York, of which proceeding Baily had notice as one of bis creditors. The question was whether such a discharge would operate to pre- sent the deft.'s arrest here for the same debt. Hamilton cited the case of Pedder vs. MacMaster, 8 T. Rep. 609; in which the Court of King's Bench refused to order an exon- eretur in a similar case. Bayard said that the rule had been settled in this state for thirty years past, that our court would recognize and give effect to a dis- eharge under the insolvent laws of other states. A discharge under the bankrupt laws in England discharges, not only the person of the debtor, but the debt itself. The English rule is not applicable to our insolvent proceedings; and it would be less applicable to our condition, considering the relations which the several states bear to each other. Hamilton admitted that the rule had been so settled in reference to discharges in Pennsylvania and Maryland; but he contended that it was a rule which depended merely upon that comity which one state might choose to extend to another, and he said that in New- 368 GUTHRIE, ASSIGNEE OF SHERIFF VS. MORRISON. York such a discharge under our insolvent laws would not be recog- nized. The rule was made absolute. Hamilton, for plaintiff. J. A. Bayard, for defendant. MARTHA GUTHRIE, assignee of MAR.CUS E. CAPELLE, Sheriff, vs. THOMAS MORRISON. Bail to the Sheriff let in to defend the original action after judgment by de- fault against his principal, and also judgment by default against himself. ACTION on a bail bond. Judgment by default. Rule to show cause why the judgment should not be set aside and the deft, let in to defend the original action. Suit was commenced by the plff. against one John V. Hyatt, for whose appearance the deft, entered bail to the sheriff. Judgment went against principal by default; and the bail bond having been sued, judgment went also against the bail, the deft, by default. He now filed an affidavit that he was informed by his principal that the claim in the original action was settled, and that he need not trouble himself further about it; in consequence of which information he suffered judgment to go by default; and he swore that he had been informed by Hyatt that he had a good defence on the merits in the original action. The Court made the rule absolute so far as to let Morrison in to de- fend the original action against his principal, this judgment to remain a security for what should be found due on that trial. And they re- ferred to the act of assembly (Dig. 62) which gives the court power to grant to the bail " such relief, upon such terms and in such manner, as shall be just and equitable." Rule absolute. Gilpin, for plaintiff. J. A. Bayard, for defendant. COURT OF ERRORS AND APPEALS. JUNE TERM, 1834. SAMUEL MCDOWELL vs. THE PEESIDENT, DIRECTORS AND COMPANY OF THE BANK OF WILMINGTON AND BRANDYWINE. If the maker of a note has funds in the bank on general deposit after the note falls due, the bank is bound to apply them in payment of the note, or the indorser is discharged. Giving time to the drawer discharges the indorser. Equity will distinguish between principal and surety, though the nature of the security be such as to make them all principals in a court of law. The oath of one witness, with corroborating circumstances, will outweigh an answer on oath. Quere. Will not the oath of one witness, unsupported, establish a fact against the answer ef a corporation ? Under peculiar circumstances a court of equity will assess damages, or send an issue to law to have them assessed. Surety paying the debt of his principal, stands in the place of the creditor, and is entitled to an assignment of all securities, original and collateral. APPEAL from the decree of the chancellor. The bill stated: That Thomas McDowell made a promissory note, dated 6th October, 1817, for $500, in favor of complainant, which was indorsed by him and discounted by the bank, for the accommo- dation of the maker. This note was afterwards protested for non- payment, and put in suit and judgment obtained against the indorser on the 7th April, 1819, for $541 16. No suit was instituted against Thomas McDowell, the maker. That after the said judgment was recovered against the indorser, the bank became indebted to the maker in several sums, amounting to $500, which, instead of applying to the payment of the said note, they paid over to Thomas McDow- ell. That they afterwards entered into an arrangement with the said Thomas McDowell, who was a notarv public, that he should do the protesting for the bank, and that of the fees for such protests 62i cents for each note protested should be credited to the said note, and the balance paid to him in cash ; which agreement was to continue un- til the note was paid, and payment in any other manner was not to be required of him whilst he continued to do the protesting. Under this agreement $80 was paid to Thomas McDowell and $150 credited to the note. The said agreement was made without the privity or consent of Samuel McDowell, the indorser. That ever since April, 1819, Thos. McDowell had made firenerql deposits of monev in the bank, which were passed to his credit and paid out on his checks, and the balances due him frequently exceeded the amount of the said note, 370 MCDOWELL vs. BANK OF WIL. & BRAN. out of which it ought to have been paid by the bank. That no de- mand was made on complainant for payment of the said judgment of April, 1819, until the year 1829, when he, having sold thirty-six shares of the stock of the said bank, called for the purpose of trans- ferring the same on the books of the bank, which was refused, as the bank claimed a lien on the stock for the payment of said judgment: in consequence of this refusal, complainant was unable to complete his said sale, and he has been further injured by the depreciation of the stock. That the bank still refuses to permit a transfer of the said thirty-six shares of stock, and has caused a scire facias to be issued for the purpose of reviving and executing the said judgment against complainant. Prayer. A perpetual injunction against any further proceedings at law upon the said judgment; that defts. may be decreed to pay to complainant the damage he has sustained from their refusing to per- mit him to transfer his stock; and for general relief. The answer admitted the making, indorsing and discounting of the note, and that the same was discounted for the accommodation of the maker, and the proceeds passed to his credit. That Thomas McDowell had received from the bank since judgment was obtained against the indorser of said note several sums of money due him for fees as notary public and justice of the peace, and that the said sums were not retained and applied to or set off against the said note, there being no direction of the said Thomas McDowell, nor any obligation on the defts. so to do : the said sums were paid in cash or deposited as cash by Thomas McDowell "as justice of the peace, and by him drawn out by his checks." That an arrangement was made between the bank and Thomas McDowell in relation to protests as stated in the bill; but the defts. denied that such arrangement was to continue until the note was paid off, or that payment thereof was not to be de- manded of said Thomas McDowell in any other way whilst he con- tinued to perform his part of the agreement. They admit the payment to Thomas McDowell, for protests under this agreement, of $80 in cash, and about $150 by way of credit to his note; and that he has made deposites since April, 1819, "as a justice of the peace, hut not in his own individual capacity and name ; " but they deny that the balances due at any time equalled the said note. They did not demand the said judgment of complainant, because he was insolvent, and had been discharged under the insolvent laws of this state. They admit their refusal to permit him to transfer his bank stock until he paid the said judgment, and also that they have issued a scire facias on the said judgment for the purpose of reviving the same, and have obtained judgment thereon ; that at the time of refusing to allow the said trans- fer, and before and ever since, there was a by-law of the said bank, duly and legally made, " that any stockholder being indebted to the bank shall not be at liberty to sell, assign or transfer his stock, or any part thereof whilst his debt shall remain due and unpaid, and that such dividends shall remain pledged to the bank until such debts be paid, or they shall be arranged to the satisfaction of the board ; pro- vided that no stock at a fair market price shall be retained beyond what is sufficient for the security for the debt that may be payable, " which, by-law, they alledge, is a sufficient authority for their said refusal. (Ante 27.) The answer further set forth: That Samuel McDowell MCDOWELL vs. BANK OF WIL. & BRAN. 371 sued the bank for refusing to let him transfer the said thirty-six shares of bank stock and on the trial of that suit a verdict was ren- dered for the defts. under the charge of the court, that the said by- law was a good and reasonable by-law and a sufficient ground for re- fusing to transfer said stock, and that the same stood pledged for said debt, and that it was not incumbent on said bank to apply the deposites of the said Thomas McDowell to the said note; a judgment having been rendered against the said Samuel McDowell, there must be an actual payment or release to discharge the same." The deposition of Thomas McDowell proved the agreement in re- lation to fees for protests as stated in the bill, and " that this ar- rangement was to continue until the debt was paid, and it was ex- pressly understood at the time of making it, that recourse was not to be had to the indorser." He also swore that he had no separate ac- count with the bank as justice of the peace or notary public. On the hearing the chancellor dismissed the bill, with costs, and the case now came up on appeal from this decree. Bayard, for complainant, contended that the agreement made by the bank with Thomas McDowell in relation to protests was such an agreement as discharged the indorser. It was an agreement for giving time, substituting another mode of payment, and putting it out of their power, at least for a time, to proceed against the princi- pal. If time be given to the principal by contract, the surety is dis- charged. Is the agreement proved? Is Thomas McDowell a com- petent witness? The rule is that a party to a note is not competent to deny its original validity, but he is competent as o any subse- quent matter, such as payment, discharge, &c. Is the oath of one witness sufficient to prove it? The answer of defts. speak very gen- erally on the subject of this arrangement, admits its general terms, but denies its extent; it is not on oath, and therefore not entitled to the credit of an individual answer, for then oath would stand against oath; but even in that case the testimony of one witness, with con- curring circumstances, would be sufficient to outweigh the answer and establish the fact. Do not the circumstances in this case fully corroborate the deposition of Samuel McDowell? 3 Merivale, 272. 2 Vezey, jr. 543. Second. Supposing it is proved that the bank had in its power a fund which might have been applied to the payment of this note, they were bound in equity to make such application of it, and if they have paid it over to the maker, the indorser is discharged. Even where a balance was paid over to the principal on an erroneous settle- ment with him, the surety was held to be discharged. Law vs. East India Company, 4 Vezey, 824. If this indorser is discharged, the court will decree a satisfaction of the judgment against him. The question then arises, whether the complainant is not entitled to compensation in equity for his dam- age occasioned by the refusal of defts. to permit him to transfer his stock. I admit that if damages can be recovered at law, a court of equity will not allow them; but when they arise out of a transac- tion which cannot be developed in a court of law; if the injury be established in equity that court will give satisfaction. It is but car- rying out the principle of relief, and applying it to an injury already established. And if this court cannot assess the amount of the dam- 372 MCDOWELL vs. BANK OF WIL. & BRAN. age it will send an issue to a court of law for this purpose. Butler vs. Pendergrast, 4 Brown Par. Cases, 174; Lanney vs. Werry et al. Idem. 630. Wales, for the defendants. When a party comes into a court of equity asking the exercise of its extraordinary powers to protect him against a legal liability, he should show that he has done full equity on his part. How does Samuel McDowell present himself here? He indorsed a note for his brother, a man in insolvent circumstances, the money was obtained from the bank on his credit; yet from the moment his liability commenced he has sought to evade it. He de- fended the original suit; judgment went against him. Then, if ever, he should have set up this defence which was equally available at law as in equity, and having failed to do so he is concluded by the judgment. A scire facias was issued to revive this judgment, and, though resisted, judgment again went against him in that action. He then brought an action on the case against the bank for not permit- ting him to transfer his stock though he was thus indebted to them, and in this action he was nonsuited. He then went into chancery and was dismissed from that court, and he is now here in the last stage of resistance to a just and fair claim. I consider, First. Whether the arrangement with Thomas McDowell in relation to protest- ing for the bank was an agreement to give time, such as would dis- charge the indorser. Is any such agreement proved? It is distinctly denied by the answer. How is it set up? By the oath of one wit- ness, and he the drawer of the note and the brother of the party. The rule is settled that one witness cannot establish a fact denied by the answer and there is no distinction in this respect between the an- swers of corporations and individuals. A corporation necessarily answers under the corporate seal, and that seal makes the act as obligatory on them as the oath of an individual can make his answer ; it has all the validity and effect of an answer on oath. If there is less personal responsibility there is also less temptation from personal interest to depart from the truth. What was this agreement even as spoken of by Thomas McDowell? Certainly not an agreement to give time. No time was given; no obligation not to sue; nothing in fact but an arrangement by which the bank placed business in the hands of McDowell, on the understanding that a part of the fees should be paid towards satisfaction of this debt. Can the court be- lieve that the bank agreed to abandon all other means of collecting this debt and particularly that they released the indorser on such a loose arrangement as this. There was no motive for such an agree- ment ; no consideration ; if made it would have been a nudum pactum. McDowell was in no wise bound to perform his part of the agree- ment. He was insolvent; had taken the benefit of the insolvent laws; and even his deposits in bank had to be guarded by a special account kept in his official character as the bank books show. Mere forbearance to sue will not discharge an indorser. There must be fi" express giving of time by a legal agreement, i. e. with consideration and binding on the parties. This arrangement has none of the fea- tures of such an agreement. Chitty on Bills 378 ; 1 Law Lib. 112. Second. Did the conduct of the bank in permitting Thomas McDow- ell to check out the funds which stood to his credit as a general de- positer in the bank discharge the indorser? I consider this question MCDOWELL vs. BANK OF WIL. & BRAN. 373 as closed by the decision of the Superior Court in the suit of the pres- ent complainant against the bank. The court held that the judg- ment changed the condition of the parties in relation to this matter; and that nothing could be set up as a defence to the judgment but payment or release, &c. Rogers: on the same side. It was not competent for the bank, without the direction of the depositor to pay these deposits to the note. What would be the condition of our banks if they were obliged to seize upon the funds of their dealers placed on general deposite and appropriate them to the payment of their notes whenever they should fall due; and what would be the condition of depositors? In every instance where the drawer had funds in bank they would have to be applied to his notes or his indorsers would be discharged. This would be extremely inconvenient both for the bank and its depos- itors. Deposites could not be made subject to such embarrassments. The nature of these transactions and the reason of the thing distin- guish it from the common case of an individual creditor paying money to his debtor. Law vs. The East India Co. does not there- fore reach this case, if it even establishes the general principles con- tended for. Both the payment of deposites and the giving of time were defences available, if at all, in the action on the note or on the scire facias. In the latter action this defence was set up and is still undecided. The arrangement between the bank and Thomas Mc- Dowell was not however, a giving of time. It might have been deter- mined at any moment by the bank proceeding on the judgment or the notary refusing to act; or even while the notary continued to act it was in the power of the bank to proceed. It is admitted that McDowell had the power to put an end to it by refusing to act and the power must have been reciprocal. But is this a case of principal and surety? All the defence of the other side proceeds on this idea. In the origin of the business it was so; but at the mo- ment of protest and notice the character of Samuel McDowell was changed; he was no longer a conditional debtor; it was his debt as a principal. Much less is he to be considered a surety after judgment. If he had given a bond to the bank he could not afterwards set up this defence; neither can he after giving a judgment. The judgment in this case was by confession. Not only was the character of prin- cipal and surety destroyed by the judgment but the cause of ac- tion was destroj'ed; the note itself was merged in the judgment. I can't think the court will be obliged to consider the remaining ques- tion whether a court of equity can give damages. The cases cited by Mr. Bayard do not establish such a power or practice. The first is a case of fraud : in the other there was a suit going on at law and the parties went into equity for a discovery: that court aided/ them and sent them back to law to establish their damages. Bayard, in reply: I agree that the confession of a judgment is a waiver of any defence existing at the time; but, of course, not after. The change of security may so far alter the character of the parties as that you cannot investigate that character in a court of law; but the rule in equity is different. This defence, if set up to the note, would be available at law as well as in equity; but the courts of law look at all the parties in a judgment as principals and this defence can't be set up there. 374 MCDOWELL vs. BANK OF WIL. & BRAN. The Court stopped him on this point. A court of law cannot look beyond the judgment, either to investigate the character of the parties or the nature of the debt. It considers it as a debt due ab- solutely from all the defendants as principals. A court of equity has larger power and better means of investigating these matters with a view not merely to the legal liabilities of the parties but to the par- ticular equity of the case. It can go beyond the judgment and as- certain the original position of the parties deft, and their liabilities not only to the creditor but as between each other as principal and surety. See Hardcastle vs. Commercial Bank, (a.) Bayard resumed I proceed then to the question of fact. Is the agreement for giving time proved? There is a manifest distinction between the answers of a corporation and of individuals. The for- (a) Garrett S. Hardcastle, assignee, &c. complainant below, plaintiff in error vs. The Commercial Bank of Delaware respondents below, de- fendants in error. In the late High Court of Errors and Appeals. June Term, 1831. Ap- peal from Chancery, Kent. All the Judges (except Rowland) sat it being an appeal from the decree of the late Chancellor Ridgely. This cause was argued at the last term; but there being but four judges present; and a division; a re- argument was ordered. Frame, Attorney General, for appellant, reads the bill. March 16, 1819. Judgment Commercial Bank vs. J. Clayton and G. Blackiston, principals, and Jacob Biddle, surety. Real debt $1900 00 Goods of Biddle, the surety, sold on this judgment, and $815 93 of the proceeds applied to it. September 15, 1821, lands of Clayton and Black- iston, the principals, sold on this judgment for $10336 51 more than suffi- cient to pay it. November 5, 1821, Biddle assigned his interest in this judgment to Philip D. Fiddeman; January 7, 1822, Fiddeman assigned to Hardcastle. Jacob Biddle was indebted to the Bank in other sums of money. Frame also reads the answer. Bank insists upon the right to set off the $815 93 against debts due them by Biddle. Mr. Frame. The lands of the principals being sold to the amount of the judgment, part of which the surety's goods had so paid, Biddle be- came entitled to an assignment of the judgment, to the amount of the sum so paid by him ; and was entitled to the lien of said judgment on the proceeds of these sales. The cause was decided below without argument. A surety paying the debt of his principal stands in the shoes of his creditor not only as to the principal debt, but also as to all collateral engagements. He is entitled to an assignment of all liens, original and collateral. Surety co-obligor in a bond, paying it off, is a specialty creditor of the principal ; paying off a judgment, is a judgment creditor of the principal. 1. Mad. Ch. 235; 11 Vezey 22; 2 Vernon 608; 1 Atk. 135; 1 Mad. 236; 2 Mad. Rep. 437; 1 John. C. R. 412; 4 John. 132, 530. This is the general principle of equity previous to, and independent of, our act of Assembly. Digest. 43. We don't claim specifically under this act, but upon the general principle of equity. The act is with us; but it is not the origin of the principle. Biddle then by the payment of this money stood in equity as the plff. in that judgment pro tanto; entitled to be reimbursed out of his principal's lands when sold. Fiddeman's interest and right, and Hardcastle's, are the same with Biddle's. The right of the Bank to set off this fund MCDOWELL vs. BANK OF WIL. & BRAN. 375 mer are the mere suggestions of counsel. Both the conscientious obligation and the legal sanction are less. There can be no indict- against Biddle's debts could not arise, until they got possession of the fund, to wit : at the November Term, 1821, previously to which all the in- terest of Biddle had been assigned for a bona fide consideration to Fidde- man. A empowers B to collect a sum of money, and then assigns to C. Afterwards B collects. Can he set off debts due to him from A against the claim of C on the money so collected? Certainly not. Bates, for the respondents. The Chancellor decided on the ground that Biddle had not paid any part of this judgment so as to entitle himself to an assignment under the Act of Assembly; and that there being an equal equity in the Bank with the complainant, and the Bank in possession of the fund it was entitled to retain it. 1st. Biddle has not entitled himself to an assignment under the act of Assembly. Takes this distinction. A surety paying only a part of a judgment is not entitled to an assignment as to that part, but only upon his paying the whole, or the balance ; fully satisfying the debt. This is the meaning of the act, and it is reasonable, for otherwise the debtor might be subjected to several executions by dif- ferent plaintiffs for different parts of the same debt ; and the proceedings of the surety might embarass the creditor in the collection of the balance of his debt. 2nd. But none of the cases cited establish it as a general principle of equity that a surety can go into chancery, and compel an as- signment upon paying all the debt. 1 Vez. sen. 339^, 2 do. 570. But if the surety is entitled to an assignment where is the case showing that his as- signee is entitled to such assignment ? All the equity to which this claim was subject at the date of the assignment follows it in the hands of the as- signee. This is admitted. Biddle was then and still is indebted to the Bank. At the sale the Bank purchased the land of Clayton and Blackiston, who have thus always had an equity to set off the debts due them from Biddle against his interest in this judgment or the avails of these lands. J. A. Bayard, in reply, for appellant. Remarks on 1 Vezey, sen'r. 339. The decision in that case is opposed to the principles of equity, to the pre- vious decisions and to the dictum of Lord Hardwick himself in 1 Atk. 135. This and the other cases cited by Mr. Bates are contradicted by the cases in 2 Fern. 608; 11 Vezey 22; 1 Atk. 135; 2 Mad. 569; 1 Johns. C. Rep. 409 ; 4 do. 132, 530, 8. This last was the case of a part payment only. There is no reason for distinguishing in the application of the principle between the payment of a part and the whole. The equity is the same. On the receipt of these funds by the Bank after the sale of the land of Clayton and Blackiston was not Biddle or his assignee entitled to an as- signment of the judgment ? Does his owing them release their obligation to assign ? If Biddle had offered to pay the judgment could they have re- fused an assignment because he would not pay his other debts? Not so. But here was a payment by Biddle applicable and applied to this judg- ment. They were, therefore, bound to assign and they might then seek the possession of the fund in payment of other debts by attachment or otherwise. We stand in the situation of Biddle on the 5th November, 1821. The Bank had no right to the fund until after the November Term 26 November, 1821. The purchaser was not bound to pay the money until then, nor the creditor (the Bank) entitled to receive it. The equity then of the Bank to set off their debts against this sum did not accrue un- til after he had assigned it to Fiddeman. Biddle had a right in this case to prefer Fiddeman, one of his creditors, to the Bank, another creditor. 376 MCDOWELL vs. BANK OF WIL. & BRAX. raent for perjury. The reason therefore of requiring two witnesses to prove a fact denied in the answer fails there is no oath against I have considered the question on the principles of equity generally; I now refer to our statute and I contend that the party here was entitled to an assignment under the equity of that act. There is no ground of dis- tinction between the payment of the whole and a part. I admit that the whole must be paid before an assignment can be demanded, but after the debt is discharged, the surety who pays a part of it has a right to an as- signment pro tanto. A different construction would make the act nuga- tory ; for if the principal debtor paid ever so small a sum, the interest for example, which in nine cases out of ten he does, the surety paying all the balance would have no remedy under this act. The law is a remedial one and ought to be liberally construed. HARRINGTON, Chief Justice of the Supreme Court delivered the opin- ion of this court: " This bill was filed by the assignee of Jacob Biddle, claiming to stand in the condition of a surety who had paid the debt of his principal, and demanding of the creditor an assignment of his lien against the prin- cipal, or the benefit of that lien to the amount so paid by the surety. There is no dispute about the facts alledged as the foundation of this claim ; the only doubt is about the equity arising upon the facts and the right of complainant to relief in this suit as against the defts. The Commercial Bank were the plffs. in a judgment dated the 16 March, 1819, for the real debt of $1900 00 against James Clayton and George Blackiston as principals and Jacob Biddle as surety. By virtue of execu- tion process on this judgment the goods of Jacob Biddle the surety were sold, in May, 1821, and the sum of $815 93 a part of the proceeds of the sale, applied to this judgment. The lands of Clayton and Blackiston, the principals, were subsequently sold, on the 25th of September, 1821, and 17th January, 1822, for a sum sufficient to pay off this judgment and all others of prior and equal date to it, and to leave a balance more than equal to the sum so paid by Biddle the surety. The proceeds of the sale went into the hands of the Bank who still retains them. On the 5th No- vember, 1821, Biddle, for a valuable consideration, assigned all his inter- est in this judgment and all his rights, both at law and in equity, to an assignment or otherwise arising from the fact of his having paid the aforesaid sum of money, to Philip D. Fiddeman, who, on the 7th Janu- ary, 1822, assigned to the complainant, Garrett S. Hardcastle. At the date of the assignment to Fiddeman, Biddle was and still is indebted to the Bank. Under these circumstances his assignee files his bill against the Bank, claiming the benefit of the Bank's judgment against Clayton and Blackiston, to the amount of $815 93; or rather claiming that sum immediately from the Bank, so much having been made by virtue of the lien out of the lands of Clayton and Blackiston. The Bank resists this claim on the ground of Biddle's indebtedness to them in other sums which they have a right to set off against this demand: and on the prin- ciple that their equity being at least equal to that of the complainant, they having possession of the fund are entitled to retain it. The general principle of eauity undoubtedlv is. that a suretv paying the debt of his principal is entitled to stand in the condition of the creditor: to be substituted in his nlace in relation to the -principal debtor, is en- titled to the benefit of all rerredies which the creditor may have against such principal; and rray require an assignment of all securities either MCDOWELL vs. BANK OF WIL. & BRAN. 377 oath. But this answer does admit an agreement. Was there no consideration for it? The bank got the services of Thomas McDow- original or collateral which the creditor may hold against the principal to perfect his remedy for the demand which by paying the debt he acquires against the principal. This is a rule of equity independent of our stat- ute; founded on the first principles of justice and propriety that he who in fact owes the debt shall pay it, and that he shall be as much bound to pay to his surety who is compelled by the creditor to discharge the debt as he was bound to pay the creditor himself. If this be the principle, and this its foundation, we apprehend that there is no propriety in distin- guishing in the application of the rule between the payment of the whole debt and the payment of a part, at least as between principal and surety ; but as regards the creditor this equitable lien cannot be enforced by the surety until the whole debt is paid, without affecting his rights ; he shall not therefore be compelled to assign until the whole debt is paid. But this being done, the same principle of equity which substitutes the surety paying the whole debt in place of the creditor, will equally extend and ap- ply to the surety paying a part, pro tanto, to the extent of his payment. With these principles settled, let us examine the situation of all the par- ties in relation to their rights and claims on the 5th November, 1821, when this assignment was made to Fiddeman. Biddle, the surety of Clayton and Blackiston had paid by the sale of his goods the sum of $815 93 to the Commercial Bank in part satisfaction of their judgment against Clayton and Blackiston. At the time of the payment of this sum Biddle acquired a claim against Clayton and Blackiston to the. amount of his payment, and an equitable lien on their land through the medium of this judgment, pro tanto; but of which lien he could not avail himself until the whole debt was paid. At the same time the Bank lost their lien on the land of Clayton and Blackiston under this judgment, to the same amount. The debt, as to the Bank, was so far satisfied and paid and they had no right to enforce this judgment against Clayton and Blackiston to any greater extent than the balance of their demand, ex- cept for the benefit and through the medium of the equitable lien of Jacob Biddle ; nor to receive upon this judgment the proceeds of the sale of Clayton and Blackiston's lands to any larger amount than the balance due them, except in the same manner for the benefit of Biddle and by vir- tue of his equitable lien. It is important in this case to ascertain pre- cisely the manner in which the Commercial Bank become possessed of this fund, and their rights over it; for it is from this possession of the fund that their equity to retain it is said to arise ; and if it should appear that they got possession of it solely through the medium of the equitable lien of another and an equally meritorious claimant of the fund, no wise indebted to them, we shall have no difficulty either in balancing the equities in point of time or grade, or in settling the other question as to their right of offsetting debts. On the 5th of November then, 1821, Jacob Biddle, having a claim against Clayton and Blackiston ; having an equita- ble lien on their lands to a certain amount through the medium of a judgment in the name of the Bank, assigns this claim and lien for a valuable consideration to Philip D. Fiddeman. Was there any thing in this transaction illegal or unjust as it regarded the Bank? Did it de- prive them of any rights, or any remedies, or of the benefit of any off- setts or discounts? Not so. Biddle had no claim against the Bank, and therefore there was nothing against which the Bank could offset claims 378 MCDOWELL vs. BANK OF WIL. & BRAN. ell as notary by the agreement which they could not have got by any legal process. He was insolvent. His person was discharged from arrest. This then was a sufficient consideration. And if they had proceeded for the judgment in violation of this agreement any court would have stayed the execution. I did say that as long as McDow- on him ; but he had a claim against Clayton and Blackiston which any of his creditors were equally entitled to obtain an assignment of as the Bank, and which he chose to assign to Philip D. Fiddeman. The assign- ment then was good, and it carried the interest of Mr. Biddle in this judgment. On the 25th of September, 1821, the sheriff sold the lands of Clayton and Blackiston bound by this judgment for a sum sufficient to pay the whole amount of it, and all other judgments of prior or equal date, and he returned this sale to the November term, 1821, which was not earlier than the 26th of November of that year. After the 26th of November then, this judgment is to be fully satisfied; and there are funds of the principal debtors sufficient to pay off not only the balance due the Bank, but the sum already paid by the surety and now due to his assignee. Who then is entitled to the money ? Had the Bank any claim to it further than to the amount of the balance unpaid to them? And were they not bound immediately on the receipt of this balance, accord- ing to the principles already settled, to substitute the surety in their stead as it regards the amount paid by him, and give him the benefit of the judgment lien? If they were so bound equity will consider that as done which the party was, according to equitable principles, bound to do ; and will regard this money as properly payable to the person entitled to it by assignment from the surety. A majority of the court are therefore of opinion, two members dissenting (Johns Ch'r. and Stout) that the com- plainant below, Garrett S. Hardcastle, who stands in the same case with Philip D. Fiddeman, is entitled to the sum so paid by Biddle; that the Bank " aving got possession of the fund at a time when it belonged to Fid- deman is not entitled to set off against his claim the debts due to them from Biddle, and that there is no equity arising to them from their pos- session of the fund which will countervail the equity of Biddle's assignee, or prevent a court of equity from granting him the relief prayed for; and consequently that the decree of the chancellor must be reversed. We have purposely considered this case upon general principles of equi- ty independent of our act of Assembly, as we deem it unnecessary in this case to decide upon the extent of that act ; but the strong inclination of a majority of the court is to give that law a liberal construction, co-extensive with the principles here announced, both as regards the payment by a sure- ty of the whole of the debt of his principal, and the payment of a part only of that debt. The wording of the act, which was not particularly re- ferred to in the argument, is at least not opposed to the extension of a beneficial rule equally applicable in its justice to the one case as the other. This court does therefore order, adjudge and decree that the decree of the chancellor in this cause be reversed; and that the respondents, the Commercial Bank, pay to the complainant Garrett S. Hardcastle the sum of $815 93 with interest from the date of the payment of this sum to the Bank by the sale of Biddle's goods; and that the respondents pay the costs in the court below, and in this court. Decree reversed. Frame and Bayard, for appellant. Bates, for respondents. MCDOWELL vs. BANK OF WIL. & BRAN. 379 ell performed his part the Bank could not proceed against him, and Mr. Rogers infers that as he had the power to put an end to it, so had the Bank. Non sequitur as to the surety. The making of the agreement discharged the indorser; it is only the performance of it that would discharge the maker. The length of time given is not important: if the Bank for one moment put it out of their power to proceed against the drawer the indorser was discharged. Pay- ment of deposits. I hold that deposits made in a Bank and passed into a general account between the depositor and the Bank become a debt due from the latter to the former against which they have the right to set off any debt of the same general character which may be due from him to them. I would rest the whole case on this point. They are not bound to exercise the right of set off as against the principal, but if they do not the surety is discharged. For it is established on obvious principles of equity that if I have a demand against one person as a principal debtor and another who is merely his surety, if a fund comes into my hands sufficient to pay it, my dutv to the surety requires that I shall retain that fund, and if I suffer it to go out of my hands he is discharged. I will not stop to exam- ine the pretence that these deposits were made in a special character. It is too slight to found an argument upon; and if made out it would establish a case of fraud to which the Bank would necessarily be a party: a mere cover to defraud McDowell's creditors. Will this court allow damages? To say that the case cited by me is a case of fraud is no answer to it. I cited it not because it was a case of fraud but because it established that in a proper case where, either because of fraud or from other circumstances a party had not relief at law, a court of equity could and would give damages. The other case is mistaken by Mr. Eogers. Judge Black delivered the opinion of the court. Black, Justice: On the 6th of October, 1817, Thomas McDowsll made his promis- sory note for $500, payable in sixty days to the order of his brother, Samuel McDowell, which the latter indorsed, and which was dis- counted by the Bank of Wilmington and Brandywine: It was duly protested at maturity for non payment, and a suit instituted on it by the bank against the indorser, in the supreme court, to March T. 1818, in which there was a judgment by confession on April 7, 1819, for $541 16. A scire facias issued on this judgment to Nov. T. 1829, to which the matters hereinafter stated in relation to the deposites made in the bank by Thomas McDowell, and the agreement between him and the bank, made in June, 1827, were (inter alia) specially pleaded. To this plea the plff. in the action demurred, and judg- ment was rendered on the demurrer for the demurrants, on Novem- ber 6th, 1830, on the ground that the original judgment could not in a court of law be held to be discharged by parol or matters in pais, but only by a release or actual payment; that if such defence could be proved, it could only avail or be entertained in a court of equity. Both drawer and indorser took the benefit of the insolvent acts be- tween 1817 and 1827. In. August, 1819, Thomas McDowell opened an account in the Bank of Wilmington and Brandywine, and his de- posites between that date and June, 1822, exceeded $4000; from 380 MCDOWELL vs. BANK OF WIL. & BRAN. June, 1822, to June, 1827, they were above $9000; after June, 1827, they were something over $200. The monies deposited were drawn out, from time to time, by Thomas McDowell, on his checks. In the account of Thomas McDowell, as it stands in the ledger of the bank, the letters " J. P." are added to his name, from August, 1819, to June, 1822. In none of the accounts subsequent to this date are these letters added, but the accounts stand in the name of " Thomas McDowell. The bank insist that this account kept with them by Thomas McDowell was kept in his official character as a justice of the peace, (he holding that office) and was a special account in that character, and not a general account embracing his own money, and that it continued in that character during the entire period up to 1831, notwithstanding the letters " J. P." were not appended to the depositor's name in the ledger after June 1822. Two bank books, such as are furnished by the bank to those who keep accounts with them, containing entries, made by the officers of the bank, of monies deposited and checks drawn, from October, 1820, to August, 1831, are produced in evidence, which are thus commenced : " Dr. the Bank of Wilmington and Brandywine in account with Thomas Mc- Dowell, Cr." In neither of these books are the letters " J. P." added to the name of Thomas McDowell. The checks drawn during the period of the account were signed Thomas McDowell, without any addition. In the scratcher of the bank, in which the original entries of deposites are made, some, and perhaps, most of the depos- ites made in the year 1819 are entered to the credit of "Thomas McDowell, J. P." but there are none so entered after 1819. After the year 1821 a number of notarial fees are credited Thomas Mc- Dowell in his bank account as deposited. The balances in favor of Thomas McDowell on inspecting the books appear at times to have been considerable; on some occasions $400, and on one upwards of $500. His fees for protesting, prior to June, 1827, amounted to $495 99, and since that time to $378 49, of which last sum $241 01 have been applied to his note, under the arrangement hereafter men- tioned, and $137 48 deposited and carried to his credit in his account with the bank before referred to. In June, 1827, at the instance of the bank, an arrangement was made between them and Thomas McDowell, by which it was agreed that the latter should receive of his notarial fee for each note pro- tested by him for the bank, sixty-two and a half cents in cash, and that the residue of each fee should be applied to his note. The ar- rangement to this extent is admitted by the answer. The fees of pro- test under this agreement amounted as before stated to $378 49, it having been acted on by the parties for several years. The bank by its answer denies that this arrangement was to continue until the amount due on the protested note was paid, or that it was not to re- quire of Thomas McDowell payment in any other manner while he continued to perform his part of the agreement. On the other hand, Thomas McDowell, who has been examined as a witness in this cause, swears " that the arrangement was to continue until the debt was paid, and that it was expressly understood at the time of making it, that recourse was not to be had against the indorser." In February, 1829, the complainant was owner of thirty-six shares in the Bank of Wilmington and Brandywine, which he contracted MCDOWELL vs. BANK OF WIL. & BRAN. 381 through his brother to sell to Bobert Porter at ten dollars per share. The bank refused to permit the stock to be transferred, on the ground that he was indebted to the bank on the aforesaid judgment, and that by a by-law of the corporation no stockholder who is indebted to the bank is at liberty to transfer any part of his stock while his debt re- mains unpaid. To recover damages for the injury sustained by this refusal, the complainant instituted an action in the superior court against the bank, of which a trial was had. The bank relied on the aforesaid judgment and by-law as a defence to this action, which the complainant attempted to meet by proof of the arrangement of June, 1827, and the deposites made by Thomas McDowell in the bank, but was overruled by the court, on the ground that the judgment being a debt of record, its discharge in a court of law could only be shown by a release or actual payment, and that the judgment being a legal demand, could not in that court be successfully resisted on equitable grounds, however strong; that such defences could avail in equity alone. After the expression of this opinion by the court, who also recognized the validity and legality of the by-law, the plff. submitted to a nonsuit. The value of each share of stock in the Bank of Wilmington and Brandywine was by act of the Legislature in February, 1829, fixed at seven dollars. The shares were to be filled up to thirty dollars, stockholders to have the preference; but if they declined, a further stock was to be created to the amount necessary to fill up the orig- inal capital. The complainant declined filling up his shares, on the ground, as he alledges, of the power claimed by the bank over his stock. The value, in August, 1833, of the full shares was $40 50, or $10 50 above par, and of the old shares not filled up, $10 50, or $3 50 above par. The complainant cannot now fill up his shares, as the time allowed the olH stockholders to do this has passed. The bill prays that the judgment against Samuel McDowell may be decreed to be entered satisfied and a perpetual injunction awarded, and that he may be compensated for the damage he has sustained by the re- fusal to permit the transfer of the bank stock. On hearing, the chan- cellor dismissed the bill. An indorser is a conditional debtor up to the period at which he becomes fixed by a due demand and notice ; from that time he becomes a principal debtor, to whom alone the holder may resort. In a suit at law upon the note he may successfully defend himself by showing that his rights have been fettered, abridged, or suspended. If, how- ever, judgment be obtained against him, this can only be discharged or gotten rid of at law by showing the debt to be paid or released, the original character of the liability .being merged in the judgment, a court of law cannot recognize him in the character of a surety. That court is estopped by the judgment, and cannot look beyond it. But this rule does not prevail in a court of equity, which will look beyond the judgment and inquire into the origin and nature of the transaction and the condition and character of the parties, and if the original condition and character was that of surety, extend to him the benefit of those equitable principles which the character of a surety oroperly may demand. In the court of chancery, therefore, and in "his court, on an appeal from the court of chancery, an indorser will be viewed as a surety and entitled to such relief as a surety may on 382 MCDOWELL vs. BANK OF WIL. & BRAN. principles of equity claim, notwithstanding a judgment may be ob- tained against him. The complainant claims to be relieved from this judgment, first, on the ground that the bank, since the judgment was obtained, have had in their possession and under their control funds of the drawer to an amount more than sufficient to have discharged this judgment, which they had the power and which it was their duty to have ap- propriated to the judgment, but which they have paid to the drawer, and that by so doing the claim of the bank is as against Samuel Mc- Dowell equitably discharged. The bank alledges that the account with the bank by Thomas Mc- Dowell was not a general account, but a special one with him as jus- tice of the peace, comprising only the deposit of monies received by him in that character, and not his individual funds. The only proof produced by the defts. to sustain this position is, that during the year 1819 most if not all the deposits appear from the scratcher or original book of deposit to be placed to the credit of " Thomas McDowell, J. P." and that in the ledger of the bank, from August, 1819, to June, 1822, his account has the heading of " Thomas McDowell, J. P." On the other hand, in none of the accounts in the ledger since June, 1822, are the letters "J. P." added, but they stand merely in the name of Thomas McDowell. The bank books furnished by the bank to Thomas McDowell as a depositor, in which the officers of the bank state the account and make the entries, and which should contain the specific special character of the account, if it was understood by the parties to be a special and not a general one, contains no designation of this kind. In each book it stands as a general account " Dr. the Bank of Wilmington and Brandywine, in account with Thomas Mc- Dowell, Cr." Nothing is added to show that it was with him as a justice of the peace, or in any other character than that of the ordi- nary general account kept by a depositer with the bank. It also ap- pears from the checks drawn by Thomas McDowell, that they are signed merely Thomas McDowell, without any addition thereto of J. P. or of any thing else. It also appears that the notarial fees due him by the bank were deposited to his credit in these accounts ; these certainly, as the bank well knew, did not belong to an account of jus- tice of the peace. In addition to all this, Thomas McDowell, in his deposition, swears that he had no separate account as justice of the peace, but that any moneys received by him in his official capacitv and deposited in the bank were deposited and credited to him as his own personal funds. That the bank could not have received it as a special account, but a general one, is very strongly to be inferred from their payment of the checks drawn by Thomas McDowell, without any addition to show it was drawn on a special fund. In our judgment it can only be considered as a general account of Thomas McDowell with the bank, such as is usually kept by depositors with a bank. It was under the entire control of Thomas McDowell, individually. His creditors might have attached any money due on it. The bank had the right to appropriate to the note indorsed by the complainant, or any other debt due to it, from Thomas McDowell, so much of his money remaining in bank to his credit on this bank ac- count as might be sufficient for this purpose; and as they have neg- lected to make this appropriation to the note, the important question MCDOWELL vs. BANK OF WIL. & BRAN. 383 arises, whether, in relation to the complainant, it was not the duty of the bank to have done so, and whether by neglecting this duty and paying over to Thomas McDowell the money in their hands belong- ing to him, the complainant is not in equity held discharged from all claim by virtue of the aforesaid judgment. On what principle of justice or equity can a creditor whose debt is due and the payment of which may be enforced, and who has on a running account money in his hands belonging to the debtor, the means of payment entirely under his own control, and at his disposition; who refuses or neglects to make the appropriation or set-off, and voluntarily hands over to the debtor the money which he might have retained; upon what principle of justice can such a creditor in a court of equity claim to hold the surety bound, after the debt had been in point of fact paid, if the creditor had elected to say so or to so consider it. The cred- itor could have set off the debt and charged it in the account, and hav- ing the power was it not his duty to do so in justice to the surety. If Thomas McDowell had sued the Bank for any balance of the ac- count, he would have been compelled to have allowed this note as a set off. Suppose, in such a suit, the Bank had chosen not to have pleaded this note as a discount, and the entire balance of account thus allowed by them to be recovered would not the judgment against Samuel McDowell have been in a court of equity held as satisfied by such a course of conduct? Deciding as we must do on equitable principles, we consider that the right of set off or appro- priation of these moneys in Bank to the note of Thomas McDowell, became a duty towards the complainant, in order to protect him from loss, and as the deposites amounted, in the course of the years of which an account is given, to several thousand dollars, and the bal- ances at times as high as $400 and $500, and the means of payment at the will of the creditor, we consider that the Bank cannot, under these circumstances, be allowed to enforce against Samuel McDowell the judgment obtained against him. The decision of the master of the rolls in the cause of Law vs. The East India Co.; 4 Vezey 330, (if an authority were wanting for so obvious a principle of jus- tice) fully sustains the conclusion to which the court have come. In that case the agents of the company had paid into the hands of the administrator of the principal debtor a large sum of money supposing that sum of money really to be due from the company. In relation to the sum thus paid the master of the rolls says " nothing is more clear than as between them (the company) and the surety, they could never demand that sum." The complainant claims relief from this judgment, secondly, on the ground of the arrangement between the Bank and Thomas Mc- Dowell, in June, 1827, by which, as he alleges, time was given to the principal to pay the note and the rights of the surety impaired. Thomas McDowell swears that the arrangement as to protesting was to continue till his debt was paid. If .such was the arrangement then the period of payment was postponed and the rights of Samuel Mc- Dowell were so far impaired as that he would no longer be held re- sponsible in equity on this judgment, for the consideration of per- sonal services which Thomas McDowell was to render, and which the Bank could not compel, was a sufficient consideration for the time granted. It is true Thomas McDowell is the only witness as 384 MCDOWELL vs. BANK OF WIL. & BRAN. to this arrangement, but there are concurring and corroborating cir- cumstances, which, were it necessary, would perhaps lead the court to say would countervail the positive denial of the fact in the an- swer, even if it had been under oath. From the view we have taken of this case it does not become necessary for us to decide, whether the oath of one witness will not avail over the denial of an answer of a corporation under seal. The reason of the rule that has ob- tained is, that you have oath against oath, and that in such case further proof or corroborating circumstances are called for, or the answer will neutralize the oath of a single witness. This reason does not exist in the case of a corporation and we confess we entertain strong doubts whether the testimony of one witness should be an- nulled by an answer wanting the sanction of an oath. We are of opinion on a consideration of the whole case, that the decree of the chancellor is erroneous and should be reversed, and that the defts. be perpetually enjoined from proceeding on the afore- said judgment against the complainant. We decline ordering an issue as asked, although we don't doubt the power of the court to do BO in a case like the present, if we thought it necessary, as we have enough before us to attain what is equitable between the parties. By refusing to permit the transfer, the defts. have deprived the com- plainant of interest on $360 the price at which the stock was sold, from February, 1829. This is all that in equity he is entitled to. He had sold the stock and the right of filling it up would on the transfer have gone to the assignee and would not have belonged to him. In this respect he is not damnified. The shares of stock, ac-< cording to the proof, is now worth more than ten dollars. We de- cree him interest on $360, from the tenth of February, 1829, to the tenth of January, 1834, $109 80, the date of the last dividend. The dividends between these periods to be retained by the Bank and all subsequent dividends to belong to complainant. The defts. to pay costs. The following decree was entered on the record: " And now to wit, this ninth day of June, A. D. 1834, this cause having come on to be heard before the court of Errors and Appeals at the present term thereof, and the causes of appeal, pleadings, proofs and exhibits having been read and heard by the court, and the matters of appeal being debated by counsel; it is ordered, ad- judged and decreed by the court that the decree of the chancellor, bearing date the 24th day of February, A. D. 1834, dismissing the bill of complaint of Samuel McDowell the complainant in the court of Chancery be reversed. And it is further ordered and adjudged by the court, that the president, directors and company of the Bank of Wilmington and Brandywiue the respondents in this appeal be perpetually enjoined and forever restrained from any further pro- ceedings at law against the said Samuel McDowell on the judgment rendered against him on the seventh day of April, A. D. 1819, at their suit in the late Supreme Court of the state of Delaware, held at Newcastle for Newcastle county, of the March term, A. D. 1819, for the sum of five hundred and forty-one dollars and sixteen cents, numbered on the docket of said court No. 119, of the March term, A. D. 1819, and now remaining of record in the Superior Court of ElDGEWAY AND NEWBOLD VS. NEWBOLD. 385 the said county of Newcastle. And it appearing to this court that the sale of the thirty-six shares of the stock of the Bank of Wil- mington and Brandywine standing in his name on the books of the said Bank made by the said Samuel McDowell to Kobert Porter, in the month of January, A. D. 1829, for the sum of three hundred and sixty dollars, was without sufficient cause and inequitably hindered and prevented by the said respondents and that- the dividends on the said stock do not amount to as great a sum as the interest upon the said purchase money, it is further ordered and decreed that the said respondents pay to the said Samuel McDowell the sum of one hun- dred and eight dollars in lieu of the dividends declared on the said thirty-six shares of stock between the month of January, A. D. 1829, and the month of February, A. D. 1834, and that the said dividends declared on the said thirty-six shares of stock between those periods be retained by the said respondents for the use and benefit of the said Bank of Wilmington and Brandywine, leaving to the said Samuel McDowell his legal and equitable rights as to the sale and transfer of the said thirty-six shares of stock, and of demanding and receiving any dividends that have been or may be declared" thereon since the month of January, A. D. 1834; and it is further ordered and ad- judged by this court that the said respondents pay the said sum hereby decreed to be paid, and also the costs of this suit in the court of Chancery, and the .costs on this appeal in ninety days from the date of trlis decree, or that a writ of sequestration issue." J. A. Bayard, for appellant. Wales and Rogers, for respondents. JACOB RIDEGWAY and ANTHONY T. NEWBOLD vs. EUPHE- MIA NEWBOLD. Dower may be assigned against one of several tenants in common where there- has been a severance. A party defendant may be examined as a witness if no decree be sought against him. Notice of the execution of a commission to lay off dower under a decree of the court need not be given to the tenant who is a party to the suit. It seems that purchase for a valuable consideration without notice is not a good defence against a claim of dower either at law or in equity. . Where such a defence is available it may be made by answer as well as by plea : But the answer must contain all the requisites of a plea. APPEAL from the decree of the chancellor, Newcastle. (Judge Black did not sit having been of counsel below.) This was a bill for dowr and for arrears of dower. John and Bar- zillai Newbold were seized of a tract of land in Newcastle county as tenants in common, in equal undivided moieties. Barzillai New- bold died in February, 1815, leaving to survive him the complain- ant below Euphemia Newbold his widow and seven children. By his last will and testament in writing, duly executed, he devised his part of the said tract of land to his two sons, Daniel and Anthony Newbold, in equal moieties as tenants in common in fee; and by his said will he made sundry bequests to his wife in lieu of dower. The widow Euphemia in March, 1815, renounced her interest under the will and elected to take her dower out of the lands. Daniel and 386 RlDGEWAY AND NEWBOLD VS. NEWBOI.D. Anthony the sons made partition in 1822, by deed, to which their uncle John Newbold was also a party, so that each might hold his share in severalty. Anthony mortgaged his part in 1825 to Jacob Ridgeway, one of the respondents, for the sum of $6000, under which mortgage the land was sold in 1827 and bought by the said Ridgeway. The complainant prayed an assignment of dower out of this part of the lands formerly of her husband, and for an account of rents since the death of Barzillai Newbold. The respondent, Ridgeway, contended that dower could not be assigned as. against him alone, or otherwise than out of all the undi- vided moiety of which Barzillai Newbold died seized. He insisted that the money which was the consideration of the mortgage, was loaned by him to Anthony T. Newbold, without any notice of this claim of dower, and on the false representation that there was no in- cumbrance whatever. That Euphemia Newbold never set up any claim of dower until after his purchase, nor does she now claim dower out of any other of the lands of her husband than the part so purchased by the respondent. He charged a combination between Anthony T. Newbold and his mother Euphemia. Anthony T. Newbold answered separately, admitting all the facts of the bill, and that the complainant had frequently demanded dower of him. That he expressly told Ridgeway when he executed the mortgage, that this land was subject to dower; and that it was in arrear. The incumbrance was also generally known and spoken of at the sale. Anthony T. Newbold was also examined as a witness for com- plainant, under a special order of the court, " saving all just excep- tions." He testified more particularly to the facts stated in his an- swer; affirming them. Articles were exhibited against his testimony. First. Because he was a party defendant and was interested in the event of the cause. Second. Because his testimony went to charge the purchaser of land under a mortgage from him with the whole of the arrears of dower, and to discharge himself. Third. Because his examination was irregular and contrary to the rules of practice in chancery. On the 28th November, 1831, the chancellor decreed that the one third part of the land mortgaged to Ridgeway, and afterwards pur- chased by him, should be assigned and laid off to the complainant for her dower; and he issued a commission for this purpose; and he further decreed that an account of the rents and profits should be taken by Andrew C. Gray, Esq., a master in chancery, appointed for the purpose, from the 25th March, 1827, and that he should re- port the said account to the next court of Chancery. An appeal from this decree was prayed and granted on behalf of the complainant, who objected that the decree confined the arrears of dower to the date of Ridgeway's purchase instead of going back to the time of Barzillai Newbold's death. The case was heard in the Court of Errors and Appeals, at the June term, 1832, and the decree of the chancellor was in all things affirmed by that court: and the commissioners and master were di- rected to proceed, (ante 55.J On the coming in of the master's report, exceptions were filed to it on the part of the respondent Ridgeway; and, after argument, the RIDGEWAY AND NEWBOLD VS. NEWBOLD. 387 chancellor overruled all the exceptions and confirmed the report. He made his final decree on the 23d of February, A. D. 1833, di- recting Ridgeway to pay to the complainant the sum of $538 52 1-3 for arrears of dower; and also confirming the assignment of dower. From this decree the present appeal was taken. The* causes of appeal specified the following errors, though all of them were not insisted on in the argument. First. For that the one third part of the land purchased by Ridgeway was directed to be assigned and laid off to Euphemia Newbold, for her dower " whereas the right of dower of the said Euphemia Newbold, if any right of dower existed, was in the undivided moiety of the tract of land con- taining 800 acres, held by the said Barzillai Newbold at the time of his decease as tenant in common with his brother John Newbold/' Second. For that a commission was issued to lay off the dower in the lands so purchased by Ridgeway, whereas the land so purchased is only a part of the land of which Barzillai Newbold died seized, and the said Barzillai was only a tenant in common thereof with his brother John Newbold. Third. Because the decree should have been for deft, below. Fourth. Because the testimony and deposi- tion of Anthony T. Newbold admitted and used in the court below were inadmissible and ought to have been suppressed, " he the said Anthony not being a competent witness, and was interested in the matters in controversy and was a party defendant." Fifth. Because Andrew C. Gray, Esq., was appointed to ta-ke an account of the rents and profits, &c., whereas " judicial power cannot be delegated but by express law/' and that important rights and privileges of the deft, were, by order of the chancellor, examined and adjudicated out of court by the said Andrew C. Gray. Sixth. Because the master did not allow certain expenditures made by Ridgeway on said lands. Seventh. Because the decree for issuing a commission to lay off the dower did not direct notice of the execution of said commission to be given to the deft.; and because the commissioners proceeded to execute the commission in the absence of deft, and without notice to him. Wales, for appellant. A dowress is entitled to dower at common law only, in such estate as her husband held and died seized of. Dower of an estate in common must be laid off as in common, i. e. one third of an undivided moiety; and the widow may afterwards have her partition. She cannot be endowed by metes and bounds in the first instance for the dower must be assigned generally. The principle is that dower cannot be assigned at law or in equity except in a certainty. Co. Litt. 32 b. 35 a. 37 6. 2 Bac. Abridg. tit. Dower B. 125. And it was so decided by the late chancellor Ridgely in Nancy Waples vs. John Smith Waples and Paul Waples. Sussex, July T. 1820. (a) Second. Ridgeway is a purchaser for a valuable consideration without notice of the incumbrance. Equity will not assist a dowress against such a purchaser. Such a defence will not avail at law, for dower there is a legal right and this defence a mere equity; but in this court the parties stand on equal ground, and it will not enforce a mere equitable claim against an equally (a) No record of this decision is to be found amongst the manuscript notes of the late Chancellor Ridgely. 388 RlDGEWAY AND NfiWBOLD VS. NEWBOLD. equitable defence. Free, in Ch'y. 65; Lady Radnor vs. Rotheroe; 3 Brown Ch'y. R. 265; Hardw. Rep. 88; James vs. Blunt; 2 Vezey, Jr. 454; Gerrard vs. Saunders; per Chancellor Ridgely, in Dick vs. Doughton Newcastle, 1826. (b) Third. The com- mission directed dower to be assigned in a part only of the land of (b) The case of Martha Dick, a lunatic, by James Bradford her trustee against William Doughton was a bill for dower and for arrears of dower against a purchaser. The conveyances were traced down to Doughton, but in no one of them was there any consideration mentioned. The an- swer, however, stated that Doughton " gave a full and fair and just price for the said tract of land, without any notice, knowledge er belief that there existed any defect in the title of the same, or that the said tract of land was liable to any claim or demand of dower by the said Martha Dick or of any other person." In remarking upon the manner of setting up this defence, the Chancellor (Ridgely) said " a plea of purchase for valuable consideration without notice must aver the consideration and actual pay- ment of it," and this not merely by way of recital, but it should be averred that the sum mentioned as the consideration in the deed was really and bona fide paid. "And where the defence is made by answer without a plea, it is necessary that there should be the same precision, and that all the matters making the defence should be as clearly and explicitly stated as in a plea." " However as the answer has not been excepted to, it will be taken as sufficient." Mitf. 216; 3 Atk. 304; do. 814; 1 Harrison 224; Gil- bert's Ch'y 57, 8. Mitf. 215, 16; Sugden on Vendors 553, 558. Two other points were made in this case first, whether the defendant could by an answer make the defence of being a purchaser for a valuable considera- tion without notice ; and second, whether such a defence could be made by either plea or answer against a claim of dower. The chancellor made the following remarks on these questions: " First. I think a deft, may avail himself of this defence by answer as well as plea ; and the following authorities support this opinion. 1 Harr. 244; Harris vs. Ingledon; 3 Wms. 91, 95. 2 Vez. 492; 1 Harr. 224. And as to the statute limitations, 1 Harr. 222 ; 2 Wms. 145 ; 1 Harr. 224. Lord Hardwick says in Chapman vs. Turner, 1 Atk. 54, the defence proper for a plea must be such as reduces the cause to a particular point, and from thence creates a bar to the suit, and is to save the parties the expense of an examination ; and it is not every good defence in equity that is good in a plea, for where the defence consists of a variety of circumstances there is no use of a plea, the examination must still be at large, and the effect of allowing such a plea will be that the court will give their judg- ment on the circumstances of the case before they are made out by the proof. In addition, Lord Redesdale's treatise on pleadings, 246, may be consulted on this subject. The defence in this case might possibly havo been better made by plea and by answer in support of the plea. The second' might have been much the most important point, but from the failure of proof in the deft, it is not of the first consideration in the cause. However, I shall not pass it by without notice. In Williams vs. Lambe, 3 Bro. C. C. 264, which was a bill for dower and in which the deft, plead to the discovery and relief that he was a purchaser for a valu- able consideration without notice of the vendor being married, Lord Thurlow said the only question was whether a plea of purchase without notice would lie against a bill to set out dower: that he thought where a party is pursuing a legal title as dower is that plea does not apply it being ElDGEWAY AND NEWBOLD VS. NEWBOLD. 389 which Barzillai Newbold died seized. It cannot be, on principle, that a dowress may go to any part of the land and claim her dower out of that, she must have her dower out of the whole, and in such quality of estate as her husband held. Rogers, for respondent. I agree that where dower is sought out of land held in common, the assignment must be in common; but after partition it may be assigned by metes and bounds but of the lands held in severalty. The land is no longer held in common. Barzillai and John Newbold were tenants in common; the former devised to his two sons in common; these, together with John the uncle, made partition before any assignment of dower, and each held his part in severalty. It was lawful for them to make such partition; they had the right to destroy the tenancy in common; the dowress could not prevent it. Now would it not be extraordinary that she should be compelled to treat this land so severed as if it were still held in common? and if she must do so would it not defeat the partition? And where is the inconvenience of assigning the dower out of such part? Second. Whether on the answer of Jacob Ridge- only a bar to an equitable not to a legal claim. He therefore overruled the plea. Mr. Parke in his treatise on dower, 328, says the case of Wil- liams vs. Lambe may be supported on its particular circumstances, on the ground that the plea covered too much, being to the relief as well as to the discovery. The dowress had a right to recover against the purchaser at law; and, if it be established that a court of equity has a concurrent jurisdiction to assign dower, such a plea to the relief would appear to be inexplicable although it might be good to the discovery, since the relief prayed is not the assistance of the court to enable the dowress to make good her title at law, but merely to give her the effect of a recovery at law. It is indeed observable that the observations of Lord Thurlow were dis- tinctly addressed to the plea as a plea to the relief; and his omitting to intimate that such a plea might be good as to the discovery, might possi- bly be accounted for by the consideration that in a case so circumstanced, a plea to the discovery would almost unavoidably be overruled by the an- swer. Now in the case of Williams vs. Lambe, I do not perceive the ground for Mr. Parke's distinction; for, as the case is reported by Brown, although Lord Thurlow's remarks were addressed to the plea yet they cer- tainly distinctly state that the plea did not apply as a bar to a legal claim, that dower was a legal claim, and therefore the plea was overruled. But suppose Mr. Parke's distinction to be correct, this answer does not object to making the discovery and it does state the several deeds of conveyance and makes a full discovery as to the title; and then, as I clearly under- stand it, it opposes the purchase for a full, fair and just price, without any notice, knowledge or belief that there existed any defect in the title, or that the said tract of land was liable to any claim or demand of dower by the said Martha Dick, to the relief. I refer to the Philadelphia edition of Sugden on Vendors 557, and the cases there cited to show the doubts entertained on this subject. This is a legal, not an equitable, title ; and I should decree in favor of the complainant had the defendant supported his answer by proof; unless the admission of the sufficiency of the an- swer, by not excepting to it, might have interposed a difficulty." The decree in the case was for the assignment of dower, and for an account of the arrears from the time of the purchase made by William Doughton. 390 RIDGE WAY AND NEWBOLD vs. NEWBOLD. way he can avail himself of the defence of purchase for a valuable consideration without notice. In the first place how is the fact? Anthony T. Newbold, one of the defts., was examined under the order of the court. Where is the objection to his testimony? Not that he is a deft. A plff. has a right to examine a deft, as a wit- ness if he seek no decree against him; and here Anthony Newbold is a mere formal party. 2 Mad. Ch. 415. Is he interested? How? The claim is for dower out of lands in which he no longer has any interest, for all his interest has been assigned to Kidgeway. He is not interested as to the arrears of dower, for this court has already decided that the complainant could only recover arrears from Ridge- way, since the date of his title, and no decree has been made or was sought against Newbold. Moreover being called by the complainant he is swearing against his interest; and he has also been released by her. If then Anthony T. Newbold is a competent witness, this de- fence is at an end, for he proves that he gave Ridgeway notice of the claim of dower. Again; any matter traced to the knowledge of the party which would put a prudent man upon an inquiry as to the lien is equivalent to notice. This is settled. Now abundant matter of this description is found in the very mortgage from Anthony T. Newbold to Ridgeway. The mortgage refers to the will of Barzil- lai Newbold and to the partition deeds. The will shows the fact that he left a widow, and on the record of the will is endorsed her renun- ciation and election to take dower at law. Ridgeway therefore had the means of notice within his power; enough to put him on his guard ; and he cannot now avail himself of the want of notice. But the defence itself cannot be sustained on the authorities. It does not apply to a claim of this character. Nor is it here properly set up. I grant that a party may avail himself of this defence as well by an- swer as by plea; but all the formalities required in the one case must be observed in the other. Great strictness is required in verifying the plea. The seizen; the payment of consideration; the want of notice must all be positively stated and sworn to. There is no evi- dence here that the consideration for this mortgage was in fact paid, except what is furnished by the mortgage deed, and this ought to have been sworn to by the deft, to entitle him to this defence. But I resist the whole defence as inapplicable to a claim of dower. Dower under our act of Assembly is a legal right wherever prosecuted. There may be cases of a mere equitable claim of dower, which would let in any equitable defence but dower under our law, whether prose- cuted for in a court of common law or of equity, has the validity of a legal claim to which such a defence as this cannot apply. And how unjust would it be to defeat a claim of dower by the mortgage of the heir to a person who might not have actual knowledge of the right to dower. The distinction I have taken was recognized in the case of Dick vs. Doughton, cited by Mr. Wales. Third. The de- cree is not defective from any irregularity in the commission issued for the assignment of dower. The deft, was in court; in the prog- ress of a litigated cause; he was bound therefore to take notice of the decree and of every thing resulting from it. It is not like an ex parte proceeding where notice might be required from the only actor in court. In the common cases of partition or assignment un- RlDGEWAY AND NEWBOLD VS. NEWBOLD. 391 der our acts of assembly there is no provision for notice, because the party to be affected by the partition is in the possession of the land and must take notice. The same principle applies here. Wales, in reply. Anthony T. Newbold's deposition is not evi- dence. He was a party to the suit, made so by the complainant her- self, liable for costs, liable for arrears of dower, could have been decreed to pay his part of the arrears in this very cause. He is therefore interested. Is he rendered competent by the release? This is not a part of the record, not in the list of exhibits, and it saves her claims for dower. Then how stands the case on the main ground of purchase for valuable consideration without notice? Is the defence properly set up. The decision in Dick and Doughten only establishes that the consideration must appear in the answer or in the proof. And it was also decided in that case that if the answer was defective on this point the only mode of objecting to it was by ex- ception. The answer is to be deemed sufficient if not excepted to. But here the consideration does appear, not only in the answer but in the bill itself. It states that the mortgage was given " to secure the payment of six thousand dollars, with lawful interest," &c. The defence is therefore well set up. Is it available? I know of no such distinction as Mr. Rogers makes between legal and equitable dower, unless it is so designated from the court in which it is sought. All dower is a legal right, but when it is necessary to seek the aid of a court of equity to enforce it, that court will take care of the equities of other parties. And this is no uncommon thing in the practice of that court. When called on to enforce legal rights, it always applies to them its own principles. Is the dower well assigned? How could a partition among the tenants in common affect either the widow's right to dower of vary the manner of her enforcing it? She was not a party to the partition, and it is against all principle that her rights should be affected by the acts of others. And is there not good rea- son for compelling the widow to seek her dower out of the whole es- tate in the condition in which it was left by her husband? The heirs at law, or devisees, should all be parties to the proceeding, for some of them might show a satisfaction or a release which would enure to the whole. The court affirmed the decree without delivering an opinion at length ; but it was understood that they recognized these positions : First. In equity a woman may have dower assigned as against one tenant in common if there has been a severance. Tenants in com- mon have the right to make partition, which the widow could prevent, and must prevent, if she may not seek her dower against each after a severance. Second. The deposition of Anthony T. Newbold was admissible, and his examination as a witness, notwithstanding he was a party on the record, was regular. Third. The fact of notice was proved, and therefore the principal point was not necessarily decided, but the court strongly inclined Fourth. That purchase for valuable consideration without notice is not a good defence against a claim of dower which is a legal and not an equitable title. Fifth. The execution of the commission to lay off the dower was not irregular. Xotice to Ridgeway was not necessary, nor is it the practice. He was a party to the proceeding in court, and bound to 392 WAPLES' ADM'X. vs. WAPLES ET AL. take notice of its decrees. He was also in possession of the land out of which the dower was assigned. Decree affirmed. Wales, for appellant. Rogers, for respondent. ANN WAPLES, administratrix of WOOLSEY WAPLES, deceased, deft, below appellant vs. WILLIAM D. WAPLES, GEORGE HICKMAN and LEWIS WEST, complainants below, respondents. Chancery has jurisdiction to inquire into awards though made on. a reference in a court of law, on the ground of fraud on the referees discovered after judgment on the award. Judgments on awards are as obligatory as judgments after verdict. Where two courts have concurrent jurisdiction and one of them is in posses- sion of the cause, it ousts the other. Whether interest on arrears of an annuity is not allowable in certain cases. Queref APPEAL from the decree of the chancellor. Sussex. Judge Robinson did not sit, having been of counsel below. This was a bill to set aside an award on the ground of fraud prac- tised on the arbitrators. The chancellor (Johns, jr.) decreed, on the 18th of March, 1833, " that the award made in this case and the judgment rendered thereon were procured by the fraud of the said Woolsey Waples, the defendant," and that " the aforesaid award and judgment so fraudulently obtained be and the same hereby are de- clared to be null and void/' And he also decreed an account. From this interlocutory decree the defts. appealed. The case was this: The deft., Woolsey Waples, having purchased of a certain Samuel White a farm in which he, together with his bro- thers, Philip and James White, were equally interested, executed to the said Samuel White three several bonds with warrant of attorney to confess judgment thereon, upon which judgments were severally confessed on the 22d September, 1812, each for the real debt of $901 53, with interest from the 21st July, 1811.' These judgments all stood in the name of Samuel White, but one of them was indorsed for the use of Philip White, and another for the use of James White, both of whom were infants under the age of twenty-one years, and for whom Samuel White acted, though he never was appointed, as guardian. Woolsey Waples made several payments to Samuel White on account of these judgments, and took receipts therefor, without designating to which judgment they were to be applied; one of $162 27, dated first July, 1813; one of $50, llth July 1815; one of $126 22, 23d August, 1815, and one of $196 85, dated 30th Au- gust, 1815. On the 30th October, 1815, Samuel White, for a full and valuable consideration, assigned his judgment against Woolsey Waples to William 'D. Waples, one of the complainants, representing at the time that nothing had been paid upon it by the said Woolsey. Between that time and the 21st of August, 1819, Woolsey Waples made six payments on account of said judgment to William D. Wa- ples, the assignee, amounting in the whole to $1019 10, and leaving a balance unpaid of about $292: on the last mentioned day William I). Waples, assigned the balance of said judgment for a valuable con- sideration, to Hickman and West. Philip White having come of age, to wit: on the 15th September, 1816, called on Woolsey Wa- WAPLES' ADM'X. vs. WAPLES ET AL. 303 pies, for a settlement of his judgment; and on this settlement Wa- ples produced all the receipts aforesaid, for payments made to Samuel White, which Philip, ratifying the acts of his acting guardian, al- lowed as against his own judgment. Waples made a further pay- ment on that day to Philip White, and took a general receipt for $851 85, including all these previous receipts; but lie did not give up those receipts. The balance still due on Philip White's judgment was ascertained on that day to be $324 85. Both Philip and Samuel White shortly after left the state and have never return- ed. Hickman and West sued out a scire facias on the judgment as- signed to them as aforesaid, returnable to the November term, 1820, which was afterwards referred by the consent of parties to the pro- thonotary and two other persons named by them "to ascertain whe- ther any, and if any, what sum is due plaintiff, and judgment to be entered according to said report." On this reference the deft. Woolsey Waples produced and claimed as credits to this judgment the receipts afsd. of Samuel White for $162 27, $50 00, $126 22, and $196 85, which were allowed by the referees; and they reported that there was nothing due on said judgment. Judgment nisi was rendered on this report at the May term, 1823. Whereupon, Hick- man and West re-assigned their judgment to William D. Waples. Proceedings were afterwards instituted on the third judgment of Samuel White, being the one marked for the use of James White against W'oolsey W r aples; and he, havnig died, his administratrix took steps to ascertain what had been paid on account of that judg- ment. The matter was referred to arbitrators and at the hearing all the receipts were produced; when the settlement receipt of 15th September, 1816, for $851 85 being recognized as in the handwri- ting of Jacob Prettyman, who was present at the settlement, and made the calculations it led to an explanation of the whole transac- tion. It then appeared that the receipts afsd. allowed by the refe- rees in the case of Hickman and West, were applicable to Philip White's judgment and that Woolsey Waples had previously obtained credit for them on that judgment. Neither William D. Waples nor Hickman and West knew of these circumstances until after the last reference in the year 1829. Layton for the appellant contended that the court of chancery had not jurisdiction to inquire into this award. Another court having full jurisdiction was in possession of the cause; it had been submit- :ed by a rule of reference under the sanction of that court to referees chosen by the parties, and a report had been made and judgment '-endered on their award. The court of chancery has no power to review this decision. He cited in support of this position, 1 Mad. Ch'y 295, 298 ; 2 do. 713, 14. Also the case of Pratt and Kinsey vs. Bradun and Eice decided in the late High Court of Errors and Appeals of this state in 1811 ; and the case of Beeson's adm'rs vs. Beeson's ex'r. in the same court, at the June term, 1831. (a) (a) Joseph Beeson and Thomas Beeson, administrators of Thomas Bee- son, deceased, defendants below, appellants, vs. John Elliott, execu- tor of Rebecca Beeson, deceased, plaintiff below, respondent. High Court of Errors and Appeals, June term, 1831. Appeal from the decree of the chancellor. Present, Harrington, chief justice, Rowland, Davis and Dingle, jus- 394 WAPLES' ADM'X. vs. WAFUJS ET AL. Courts favor awards. They tend to the speedy and amicable set- tlement of disputes. The causes for setting them aside must be for tices of the Supreme Court, Clayton, Chief Justice, and Stout, justice Common Pleas, (Cooper, Justice, absent.) This cause stood upon a case stated in the nature of an injunction bill. It was agreed upon in chancery as a substitute for a bill and answer. " Thomas Beeson, senior, by will, dated in 1787, devised his land &c. to Jonathan and Thomas Beeson, his sons, and bequeathed to his wife, Re- becca Beeson, an annuity of forty pounds per annum, payable quarterly, in bar of dower, and charged it upon the real estate so devised to his sons, and also upon his personal estate. He also gave his wife the use of two rooms in his house, with certain other privileges. He died 22d March, 1790. The annuity, &c. were accepted by the widow in bar of dower. In 1790 she removed from the house and resided with her two sons in the country until 1792, when she went to live with her son-in-law, Elliott, the defendant, with whom she lived till her death. On the death of Thomas Beeson, sen. the house, &c. in which these privileges were granted came into the possession of Jonathan and Thomas Beeson, the sons, and re- mained in their possession, without any agreement with their mother about compensation for her relinquishing the use of them, until March, 1799. At that time Jonathan and Thomas being about to sell the house, each executed to the widow a bond for the payment of twenty dollars, an- nually, for her privileges therein. In 1814, Rebecca and Thomas Beeson having differed about the arrears of her annuity of forty pounds, and the arrears of the said bond annuity of twenty dollars, entered into an amica- ble action in the court of common pleas for Newcastle county, referring all matters in variance between them to three arbitrators, who unani- mously awarded in favor of Rebecca Beeson the sum of $993 23. and judgment was rendered on their report. The arbitrators allowed interest on the annuity of $40, and also allowed a compensation for the widow's privileges in the house from 1793 to 1799, during which time they were relinquished for the benefit of the heirs. Rebecca Beeson died in 1821, made a will, and the deft., Elliott, is her executor. Thomas Beeson, jr. died in 1825. Complainants are his administrators. Upon hearing, the chancellor dismissed the case stated in the nature of a bill, and ordered the costs to be paid equally by the parties. Where- upon an appeal was prayed and granted. Mr. Rogers, for appellants. The use of the rooms was a personal privi- lege to Rebecca Beeson, which she might avail herself of or not at her plea- sure. The non-user gave her no claim upon the heirs unless there was a contract to that effect. The arbitrators, therefore, committed a mistake in law by allowing her a compensation for these rooms previously to 1799. Second. The arbitrators made another mistake in law, by allowing interest on the annuity of forty pounds. Annuities do not carry interest. That point is now well settled in England. 3 Brown, ch. 489, 495-6 ; 1 Sch. & Lef. 301 ; 4 Brown, ch. 416. If this be the law, the question arises, can the court of chancery give relief against this mistake ? We don't contend that a court of chancery will in all cases inquire into awards, but if there be a mistake in law it will interfere. Chancery has a general jurisdiction over awards, and the fact that a party may object to the award in the court be- low does not oust chancery of its jurisdiction. Jurisdiction of chancery not ousted by arbitration under statute 9 and 10, William IH. 2 Vezey, jr. 451. The statute of William is equally full with our act of assembly. The gen- eral jurisdiction of the court being established, was this a proper case for WAPLES' ADM'X. vs. WAPLES ET AL. 395 matter apparent on the face of the award, or improper conduct on the part of the arbitrators. The court will not strain an inference of its exercise ? The grounds for impeaching awards are corruption, misbe- havior, excess of power, and a mistake in fact admitted by the arbitrator. Awards contrary to law may be impeached ; for that is excess of power. An award will be set aside for a mistake in law. 2 Vezey, jr. 15 ; Bun- lury, 265; 3 East. 18; 9 Vezey, jr. 364; 13 East. 357. There is a distinc- tion between the reference of a distinct question of law and the reference of all matters to be decided according to law. In the latter case a mis- take may be corrected, though not in the first. The chancellor therefore erred in dismissing the bill for want of jurisdiction. Mr. Archibald Hamilton, for respondents. The relinquishment of the use of the rooms was for the benefit of Jonathan and Thomas Beeson, and they set their own estimate upon this benefit by each giving the widow a bond for twenty dollars per year. The arbitrators might well presume a contract before this period, and it was just that they should al- low a compensation. Second. It is not settled that interest shall not in any case be allowed on an annuity ; on the contrary, where the annuity is for maintenance, in bar of dower, &c. it has frequently been allowed. And it is equitable that it should be allowed. It appears, then, that the referees have made no mistake; they have allowed interest in a case where by law it was allowable. But I take the rule to be, that the court will not set aside an award for a mistake of law on a doubtful point: only upon a plain and palpable mistake of the law. 2 AiTc. 211; 3 AtTc. 579; Talb. cases, 2; 1 P. Wms. 543; 2 P. Wms. 163; 1 Vez. jr. 452; Stid- kam's adm'x. vs. Shields, Chy. N. C. C.\ 3 Atlc. 494; 1 Vez. jr. 370; 2 which is set forth as the cause of action, is not an assumption, but a promise to become surety that the judgment against Spenser should be paid. He is not liable upon it as an actual entry of security; for such entry must be on the jus- tice's docket and signed by the surety. Dig. 338, 5, 13. The deft, is liable on this letter for a failure to become bound as surety; but such an action is not within the jurisdiction of a justice of the peace. Judgment reversed. Wales, for defendant. HENRY GIBBONS, Jr. vs. PARK MASON. Constable's return must show whether the service was personal, or by leaving a copy at deft.'s house. It need not state all the requisites, but if it shows that any of them were not observed, it will be bad. Service by leaving a copy at the deft.'s office is not a good service. CERTIORARI. Summons issued. Constable returns " Summoned by copy left at the deft.'s office." Judgment by default, the constable having verified the service by making oath " that he did duly serve this warrant in the manner set forth in the note of service indorsed." Exception. That the service of the summons was not made accord- ing to law. Richard H. Bayard, for plff. Non constat that the office is not a part of the deft.'s house, and the constable having sworn that he duly served the process, it will be taken to be so, unless the con- trary appear. If the office be distinct from the deft.'s place of abode, it should be shown by the other side. All the requisites of the ser- vice need not be stated in the return. " Service by copy " would be DONELY VS. McGRANN AND McCLAY. 453 a good return, because it would be construed to mean that the ser- vice was by leaving a copy at the deft.'s place of abode in the pres- ence of one or more of the family or neighbors, as the law directs. Dig. 331. 5. 3. Hamilton. The law requires a service at the dwelling-house in a certain manner. This return shows a different service; a service at the office. The oath does not help the case, because it is merely that the service was duly made in the manner indorsed. The Court. The act requires that notice should be left at the dwelling-house of the deft, in the presence of some member of his family or neighbors. It is a wise provision to insure notice to the party before a judgment by default shall bind him. Here the ser- vice was at an office, a place where the family do not usually reside. The constable need not state in his return that all the requisites to a legal service were observed; but if he states any thing which shows that the service was not regular, the judgment cannot be sustained. Judgment reversed. R. H. Bayard, for plaintiff. Hamilton, for defendant. HUGH DONELY vs. JOHX McGEANX and JOSEPH McCLAY. Payment of rent may be proved by parol, though there was a receipt given. On attachment against an absconding debtor, there need not be a second ap- praisement. Judgment in replevin is for the sum found due as debt, and the value of the property destrained need not be found. REPLEVIN. The deft. McClay made cognizance as bailiff for McGrann, who avowed the taking as a distress for twelve dollars rent in arrear on the 25th September, 1833. Pleas, non tenuit, nil habuit in tene- mentis, no rent in arrear, and payment to ground landlord. Repli- cations and issues. Charles Connel, being possessed of a small tenement, divided into two parts, on a ground lease of $8 00 per annum, demised the south end to Hugh Donely for one year from the 25th March, 1833, at $24 00 per year, payable quarterly. On the fourth of May follow- ing, Connel assigned all his interest in the premises to John Mc- Grann, one of the defts. By an arrangement between McGrann and Hugh Donely, the latter removed from the south to the north end of the building, at the same rent and on the same terms. On the sixth of May, 1833, an attachment was issued by a justice of the peace, at the suit of Robinson, Carr & Co. against Charles Connel as an absconding debtor, which was levied, on the seventh of May, on the said house, and an appraisement regularly made. Judgment was afterwards obtained on the attachment, and an execution issued on the tenth July, 1833, under which the house was sold to Robinson, Carr & Co. for $55. Donely afterwards attorned to Robinson, Carr & Co. and paid them the rent. He also paid the ground landlord and took receipts. He offered parol evidence to prove the amount 454 CHANDLER AND OTHERS vs. FERRIS. paid to the ground landlord, which was objected to, as it was shown there were receipts. The Court said that parol evidence of the payment of money may be given by a witness who actually saw it paid, though there be a receipt. 3 Stark. Ev. 1055, note. The plff. in replevin contended That the distress was illegally taken: the demise was for the south end of the house, and the narr and avowry were for rent due for the north end, where the taking was. That the assignment from Connel to McGrann of fourth May was fraudulent, being but two days before the attachment, and on the eve of absconding. That the payment to ground landlord was a good defence. Bayard replied That the attachment of Robinson, Carr & Co. could give them no title, as it was after the assignment; nor was it regular, as there was no inventory and appraisement, which the latv requires. [NOTE. There was an appraisement on the attachment be- fore judgment ; Mr. Bayard insisted there must be a second one after judgment and before sale, which the court thought not necessary. Dig. 348, sec. 32.] Second. That the distress was right, as there was a change from the south to the north end of the house with the full consent of all parties. This constituted a new letting. The Court left it to the jury First. Whether there was sufficient evidence to prove a demise in the north end; and second, whether they were satisfied that the assignment of Connel to McGrann, of fourth May, 1833, was a bona fide transaction. Verdict for avowant, defts. in replevin. The question arose on the return of the jury, whether it was neces- sary to find the value of the property distrained. The court said that, though formerly otherwise, the present act of assembly made it unnecessary. The condition of the replevin bond is to satisfy the judgment, whatever it may be, and not merely to the extent of the property distrained. Dig. 264, 365. The judgment is to be given for the sum found due, as debt, with costs, &c. R. H. Bayard, for avowant. Wales, for Donely. JESSE CHANDLER and others vs. BENJAMIN FERRIS. Sound and disposing mind and memory, what is it? What degree of influence will vitiate a will. If in drawing out a will from instructions they be materially departed from, the jury must be satisfied that the testator knew of the deviations. Testimony will not be admitted in reply which might have been adduced on the examination in chief. The party which has the burthen of proof is entitled to the opening and con- clusion. On an issue of devisavit vel non the caveators have the onus. ISSUE from the register sent to try the question " whether the paper writing purporting to be the last will and testament of Thomas Chandler dec'd., is or is not the last will and testament of Thomas Chandler dec'd." CHANDLER AND OTHERS vs. FERRIS. 455 The will in question bore date the 24th May, 1833, and was made when the testator was in his ?3d year of age. It was in- the hand writing of Benjamin Ferris, who was constituted an executor and trustee as hereafter mentioned. It contained a great number of small bequests, amounting in the whole to about seventeen thousand dollars, most of which were to the testator's relatives; and it then disposed of the rest and residue of his estate, real, personal and mixed, in the following manner. " And whereas it hath frequently occurred to my mind that the African race or descendants of African natives in the United States, are in a deplorable degraded condition,, and considering that neither the federal government nor any other institution has made adequate pro- vision for their improvement in education, morals and industry I have thought that a great and permanent benefit might accrue, not only to that people but to the white population of our country, if a founda- tion could be laid, though in a small way, of a fund to be appropri- ated to the promotion of these important ends. With the hope therefore that benevolent individuals who may survive me, may be disposed to aid in this concern, and contribute towards, its accomplishment, until a fund may be raised sufficient to commence an institution to carry into effect the views before expressed, so far at least as to edu- cate male children of the African race, so as to render them useful to themselves and the community by a course of instruction in mor- als, science and productive employment, agricultural, mechanical or otherwise; I do hereby give, devise and bequeath to John Clark, now of the city of Wilmington, in the State of Delaware, Benjamin Ferris and Eli Hilles of the same place, David Wilson, of Hockes- sing, in the State aforesaid, Jacob Heald and Haines Jackson, of the same place and Bennet Jefferis, of Christiana hundred in the State afs'd. all the rest and residue of my estate, real, personal and mixed or of whatever kind the same may be not herein otherwise disposed of in trust, nevertheless, that they the said John Clark, B. F., E. H., D. W., J. H., H. J. and B. Jefferis and the survivor of them and their successors appointed as herein after directed, shall faithfullv appropriate and apply the said residue of my estate or the proceeds thereof, to the purpose afs'd. and to no other. And in order to carry into effect the object of this devise and bequest, I do hereby author- ize and empower my executors herein after mentioned, to sell any real estate which I may own at the time of my decease, included in the residue of my estate as afs'd., and by a good and sufficient deed or deeds of conveyance duly executed and acknowledged, to grant and confirm to the purchaser or purchasers thereof, all my estate, right, title and interest in the same, as fully and effectually as I myself could now do, and I do hereby direct my said executors to pay over to my trustees herein named, the net proceeds of all such sales to be by them appropriated as herein before directed. And in order to prevent any failure of the trust committed to the said John Clark, B. F. &c., I do hereby authorize and empower them and their successors and a majority of them and their successors for- ever, upon the death, removal out of the State, refusal to serve or total neglect of any one or more of the said trustees or of their suc- cessors to appoint another or others to fill his or their places, and the 456 CHANDLER AND OTHERS vs. FERRIS. person or persons so appointed shall have and exercise all the power and authority which is hereby delegated to any one or an equal num- ber of the trustees herein before particularly named. And it is my will and I do hereby direct that all the estate or pro- ceeds of the estate hereby given in trust to my trustees herein before named and to their successors, shall be as far as practicable kept out upon interest or so invested as to be productive, and that all the interest or net proceeds arising from dividends on stocks or other investments shall be from time to time added to the estate hereby devised or bequeathed, during the space of seven years after my death, if the principal shall so long remain unappropriated in the manner aforesaid. And it is further my will and a condition of the afs'd. devise and bequest to my trustees as afs'd. that the estate so given to them in trust shall be appropriated and applied to the uses and purposes afs'd. within seven years after my decease; and if within that time no such institution shall be established or commenced, and no other funds raised for the purposes of such establishment, then and in such case all the said residue of my estate shall go to and be equally divided among all the children of my nephews and nieces and their legal rep- resentativesj, share and 'share 'alike, and I do hereby give and bequeath the same to them accordingly, to hold the same, to them and to their heirs and assigns forever. Excepting nevertheless out of such bequest the sum of five hundred dollars, part of the said residue, which I do hereby give and bequeath to the African school society of Wilmington, incorporated by the Legislature of the State of Del- aware, for the purpose of instructing the descendants of the people of Africa, the same to be paid to the said society on failure of the said institution and not otherwise. And as it may be useful and proper that I should express my mind in relation to the plan of the institution proposed, I hereby add an outline of such plan as appears to me most likely to attain the object of my concern. First. That a tract of land should be purchased sufficiently remote from any city, town or village, to prevent all improper intercourse between the resident pupils and every person connected with the institution. Second. That commodious and substantial buildings be erected thereon for the accommodation of the pupils and officers of the insti- tution, and for workshops, barns, stables and for other purposes. Third. That children should be admitted at seven years of age and older, as pupils from any section of the United States, but those from the State of Delaware to have the preference in all cases when it may be necessary from the state of the school to make a choice. Fourth. When pupils arrive at fourteen years of age, having had a competent share of learning to fit them for business, they should be permitted, if they so choose, to be apprenticed to suitable persons at the discretion of the managers, to learn trades, agriculture or other business, in which they may be useful to the community and of advantage to themselves otherwise they may at the discretion of the managers, be kept on the farm or in the workshops under the care of the institution, until they arrive at the age of twenty-one years. CHANDLER AND OTHERS vs. FERRIS. 457 Fifth. The pupils should be maintained and educated without other charge or compensation than their own labor, and should he found in food and good plain clothing during their residence in the institution. Sixth. The course of instruction should include reading, writing, arithmetic and English grammar and where inclination and ca- pacity on the part of the pupils are manifest, the course of instruction should extend to the higher branches, particularly those that may be most useful in practice, such as navigation, surveying and the neces- sary preliminary acquirements. Seventh. The managers should have power of course to discour- age all improper conduct on the part of the pupils, and to encourage them in their pursuits and for good behavior, by dismissal or pun- ishment in the former case and by rewards or promotion in the latter. Eighth. The farm ought to be managed in the best manner, and according to the most approved system of agriculture, so as to be a proper model or pattern for others. All the labor should be per- formed by the students, which should be so regulated that each pupil should do his proper share of labor and have his fair proportion of literary instruction daily. Ninth. As the funds and resources of the institution may author- ize, workshops should be built and mechanics employed to teach the pupils in their several branches, such as smiths, shoemakers, cabinet- makers, turners, &c., seeing that the elevation of this class of people much depends on their usefulness as members of the community. Tenth. Each pupil on admission into the institution, should come under written obligations to remain under the government of the offi- cers or superintendents of the establishments, and to comply with such instructions as may be given them. And it might be advan- tageous and proper to have legislative authority to bind them out under the age of twenty-one years, to such persons as might be suit- able, in order to attain the objects in view as before expressed. And I desire that at no time more than two of the trustees in future to be appointed, should be resident in the city of Wilmington or any other town at least five in number should always be inhab- itants of the country." And he appointed Amor Hollingsworth, Jesse Gregg and Benja- min Ferris, executors. The estate amounted to between thirty and forty thousand dollars. Latimer for deft, produced the will and proved its formal execu- tion by Samuel Smith, the surviving testamentary witness. The execution took place at the house of Benjamin Ferris, who was a scrivener by profession. This witness gave a very decided opinion as to the sanity of the testator. The idea had never occurred to him, nor had he ever heard it suggested by another, previous to the death of Thomas Chandler, that he was not a man of sound mind. Bayard, then opened on the part of the caveators, stating That he should controvert the validity of this will on the ground of incompetency in the testator from general weakness of intellect, ope- rated upon by the improper influence and control of others. It would appear to be the case of a very old man living upon good terms with 58 458 CHANDLER AND OTHERS vs. FERRIS. his family connexions, towards whom he had always manifested great kindness and affection, disposing of a large property, to the exclusion of those relatives, towards a class of people who had in his better days, heen objects of his marked aversion, and towards an object which itself presented strong evidence of insanity. That though he was a man of pretty strong mind on some subjects, he was subject to periods of depression amounting almost to insanity; that he was often afflicted by a kind of monomania first on one subject and then on another; and that weakened as he was by age and dis- ease, in the course of which he had had several attacks of palsy, he was peculiarly subject to the management of others. That the deft, acted on this occasion as the counsellor of the testator; and by lead- ing his mind to an object which he and other members of the anti- slavery society had at heart, exercised over him an undue influence, and made him substitute their own will for his. Under these circum- stances the plffs. would insist that although the extremely weak and vacillating state of mind which they would prove the testator to have been under might not amount to actual insanity, there was a degree of influence exercised over him, and a direction given to a mind natu- rally tending to insanity which ought to satisfy the jury that in this act Thomas Chandler did not exercise a sound and disposing mind. During the examination of plff.'s witnesses, the following letter was produced by the deft, at the request of the other side, and read in evidence by them with a view to show the extent of influence exerted over testator's mind. Copy of a letter from William Lloyd Garrison, editor of the Lib- erator, to Benjamin Ferris. The first page contained printed " proposals for establishing a school on the manual labor system for the education of colored youth,'* and a printed plan for such school, in substance similar to the one contained in Chandler's will. The manuscript was as follows: " BOSTON, Feb. 16, 1833. Respected Friend: I presume the enclosed plan for the establishment and government of the manual labor school for colored youth will be acceptable to you and your benevolent friend. The managers of the anti-slavery society deem it unnecessary to urge upon either of you the impor- tance and need of the contemplated school. It is desirable that what- ever is done, should be done speedily. Subscriptions have been commenced, in this quarter, under very favorable circumstances. Your friend, we trust, will add his name to the list of donors. We are cheered in view of the progress of the anti-slavery cause in this country. The example, so long given by the society of friends, is beginning to have its legitimate influence. Your humble friend, WM. LLOYD GARRISON. BENJAMIN FERRIS." The plffs. having closed their testimony in chief : Latimer opened the defence in support of the will, and examined a number of witnesses on the subject of the testator's sanity. He also read in evidence the instructions given by Thomas Chandler to Benjamin Ferris for drawing his will. This paper was in the hand CHANDLER AND OTHERS vs. FERRIS. 459 Avriting of Thomas Chandler. That part of it which relates to the residue of his estate was in the following words : " Whereas it has frequently revived in my mind for a considerable time, the degraded and deplorable situation and condition of the Af- rican race that is unhappily introduced amongst us, and considering that government, nor any other institutions, make no provisions for their improvement in their education, morals or industry : Therefore I have thought that it might be an advantage to them to lay a founda- tion (in a small way) of a fund for the abovesaid purposes, with a sincere hope that some philanthropists may feel disposed to add thereto until it amounts to a sum sufficient to be put into operation for the education of the youth of that description so as to render them useful to themselves and to the community. Therefore I give and be- queath the reversions and remainder of my estate not otherwise dis- posed of, for the express purpose of purchasing a plantation or tract of land in a remote part of the country, not near any city, town or village, large enough to support in good degree, the institution by their industry. The scholars shall be instructed in various branches of a sound and plain education, comprehending reading, writing, grammar and arith- metic, so as to enable them to transact common occurrences of busi- ness, if their capacity will admit of it. The farm to be cultivated in the most advantageous manner for the support of the institution the scholars to work on the farm one half of the day when they can be employed advantageously, or at some mechanick trades, any such as will clear their way or expenses, and the half in the school. But if no such institution shall be founded within seven years from the time of my decease, then I give the said residue to all the chil- dren of my nephews and nieces equally, except 500 dollars to Afri- can school society." The deft, here rested his case. Joseph Baily, was called as a witness on the part of the caveators and asked in relation to the testator's general state of mind and bodily health. The testimony was objected to as not being strictly in reply. The Court said that witnesses might now be examined to contra- dict or explain any facts stated on the other side, but not generally as in the previous examination. The caveators commenced (after the formal proof of the will) by a general examination tending to show the insanity of the testator; or that he had been subjected to an undue influence in making his will. The other side replied at length a? to these matters: Each side therefore has had full opportunity in the general examination to bring out all the evidence on this subject. If either party were permitted again to go into ?. general examination, the other would have a right to demand a general reply, and there would be no end of the case. Whereupon both sides closed. A question arose as to the manner of conducting the argument be- fore the jury. Bayard. This is a new question in this court. The general 'rule is that the burthen of proof, and not the technical form of the plead- ings, gives the opening and conclusion; 1 Stark. Ev. 384; 8 T. Pep. 460 CHANDLER AND OTHERS vs. FERRIS. 41)7. Ordinarily the pin*, has the conclusion for the burthen usually tests with him. But when the pleas are affirmative or the proof thews that the laboring oar is with the other side, the order of proceeding is reversed. The issue sent here is in the usual form, whether the instrument in dispute is the last will and testament of the testator: and where the will is controverted on the ground of fraud or inca- pacity, the proof of execution is merely formal. The execution of this will was not denied. It rests with us therefore to avoid it on other ground. The law presumes sanity and throws it upon us to prove insanity or other cause for setting aside the will. The order of proceeding heretofore had in the cause shows that by common con- sent the laboring oar has been assigned to the caveators. They should therefore have the opening and conclusion. And such was the decision in the late supreme court in Kent county, in the case of Buckmaster's will and Cubbage's will. Rogers. In the case of Grubb's will, in this county, and Mas- ten's will tried before the present court in Kent, the practice was otherwise. And on principle it should be so. What is the question we are trying? Whether the paper writing purporting &c. is or is hot the will of Thomas Chandler. We affirm that it is his will and we have to show it. The burthen therefore is with us. The rule is without exception running through every description of action that the party who has the affirmative of the issue has the right of con- cluding. Clayton. The pleadings may sometimes throw the burthen of proof without giving the benefit of conclusion. But the pleadings are the party's own act. Here the issue made up is not the act of the party but of the Register; and the court will examine who has really the burthen of proof to make out. In Mast en's case the ques- tion was not raised, and indeed the state of facts was different. The execution of the will was denied. One of the testamentary wit- nesses was dead and the other very ill at the time of trial. It was doubtful whether the execution could be fully proved. In Cubbage's case the question was made; and in Buckmaster's case it was twice argued, and the conclusion given to the caveators. The Chief Justice stated his recollection of the practice. He knew of no decision in the common pleas while he was at the bar or on the bench in that court. He recollected three cases in the su- preme court in which the opening and conclusion were given to the caveators. He referred to James Robinson's will; to Wilson Buck- master's, (a) and Thomas Cubbage's (b). In all of them the ques- (a) John Bell vs. Joseph Buckmaster et al. Supreme Court Kent, 1820 ; temp. Johns, chief justice. Issue " Whether Wilson Buckmaster, at the time of making and exe- cuting the writing of the seventh January, 1819, was of sound and dispos- ing mind, memory and understanding." J. M. Clayton, for the will. Thomas Clayton, for caveators. - J. M. Clayton asked the court's opinion who had the right to open and conclude. The resrister has made the executor plaintiff. Per curiam. "From the nature of the issue the onus probandi is with the deft. The execution is proved, and the only question is as to the testator's CHANDLER AND OTHERS vs. FERRIS. 461 tion was formally made and decided. The issue on Grubb's will in this county was not argued, and the question was therefore not raised. A case has also occurred in Kent, the only one in this court : the case of Hasten vs. Anderson et al. where the executor did open and conclude, but the matter passed sub silentio and the regularity of the proceeding was not called in question. We are not to be governed by the question who affirms or who denies in the issue; but where is the onus probandi. The burthen here is upon the caveators; they do not deny the execution of the will, but set up insanity and such an influence exercised by others over the testator's mind as will vitiate the will. After the formal proof of the paper, the executor might fold his arms until the cavea- tors produced something to overthrow his case which is prima facie established by the production of the will and the inference of law in favor of sanity. We are of opinion that the caveators have the open- ing and conclusion. Bayard, for caveators, contended, that if they had not- made out a case of actual insanity, they had shown the testator to be a man of exceedingly weak intellect; enfeebled both in mind and body by age and disease. That the will was made under circumstances of strong suspicion, without the knowledge of his relatives, by a person who sustained to him the relation of a counsellor and attorney; a will violating natural affections; contrary to ascertained previous deter- minations; in favor of a class of people towards whom Thomas Chan- dler was known to have entertained antipathies, and for an object not only wild and visionary, but in our state of society and political con- dition, wicked in its character and dangerous in its tendency. In tracing out its consequences, he read from a pamphlet published by William Lloyd Garrison, entitled " Thoughts on African Coloniza- tion," with a view of showing his sentiments and those of the anti- slavery society in relation to negro slavery. He read extracts to prove First. That the author was in favor of the immediate abol- ishment of slavery in this country, pp. 58, 59. Second. That he was not only for emancipation, but insisted on remunerating the slaves for years of unrequited toil and labor, &c. p. 85. Third. insanity. The law presumes sanity until the contrary is proved. We are of opinion that the defts. have the right to conclude : you may proceed to open as you please." The jury, not being able to agree, was discharged, and the case was tried over again at a succeeding term, when this question was raised again and argued at some length. The court decided as before. (ft) John Cubbage vs. William Cubbage. Issue devisavit vel non. Question made, which party was entitled to open and conclude. J. M. Clayton, for caveatorp. The burthen of proof is with us, and we have the conclusion. So decided in Bell and Buekmaster. Bates. This case is not like Buekm aster's. Here the burthen of proof is with us. We admit the general derangement of tbe testator, but contend that the will was made during a lucid interval ; and we are to prove it. Per curiam. " The burthen of the proof is with the plff. who relies on insanity. The law presumes every person to be in his senses, and those who controvert the will must prove insanity. The plff. is to open and conclude." 462 CHANDLER AND OTHERS vs. FERRIS. That he denied the legal right of any one to hold a slave. Fourth. That he was for amalgamation, pp. 145-6-7. Fifth. For instruction and subsequent admission to all the trusts, offices and honors of the republic, p. 80. Sixth. And that he was for a negro college, as the means of effecting these objects. Mr. Bayard insisted that the jury were bound to regard the char- acter of the bequests in forming an opinion of the sanity of a testa- tor, and that a will might contain so absurd and unnatural a disposi- tion of property as to afford sufficient evidence in itself of insanity; and he cited 1 Cox Ch. cases, 355; 3 Merivale 84; 3 Eng. Eccl. Rep.; 1 Adams Ecc. Rep. 99; Evans vs. Wright; Shelf ord on Lunatics, 174, in Law Library, Nov. 1833, 178, Swinburne on Wills, 478-9. Latimer, Read, jr. and Rogers, contra. The question of the pol- icy or impolicy of the bequest to a negro college is not a subject for the consideration of the jury; they are only to decide whether such was the will of Thomas Chandler. The jury have, before them a paper, regularly executed, which declares that such was his will; and it is admitted that they must so find it to be unless the other side prove that such was not his will. The burthen of proof lies with them. The proof has totally failed on the subject of insanity. With the exception of the diseases incident to advanced life, nothing has been proved tending to show even imbecility. And in relation to these diseases the physicians, whose testimony is to be taken on this sub- ject in preference to the opinions of others, prove that they were not of a character to affect the mind. The particular disease under which he labored was asthmatic, and not paralytic, as some persons, unskilled in the nature of diseases, have ventured to assert. He continued to transact his usual business down to and after the date of the will; collecting interest on his bonds, mortgages and stocks; cal- culating interest and making probates, when necessary; and so late as the month of July, 1833, his deposition was taken by Mr. Gray on a commission from chancery, and he was then considered by the com- missioner to have been of perfectly sound mind. If the testator was of sound mind this will must stand, unless it has been proved to have been made under the operation of an influence counteracting his own purposes and violating his own wishes. No mere advice or solicita- tion, no persuasion or argument, will vitiate a will: it must be an importunity, such as the testator is too weak to resist; a degree of solicitation that deprives him of his free agency, and compels him to adopt another man's will for his own. 3 Stark. 1707; 2 Phil. Ev. 449; 1 Ecc. Rep. 340, 344; 2 do. 231. And the procuring a will to be made will not vitiate it ; unless fraud has been practised on the testator. 3 Serg. & Rawle 267 ; Miller vs. Miller. What evidence is there in this case of any influence whatever having been exerted over the mind of Thomas Chandler, much less of an undue influence? The jury cannot presume fraud. Fraud must be proved. And yet they are called on in this case to presume in the first place, against the evidence, that Thomas Chandler was so weak as to be very liable to imposition; and then to presume that William Llovd Garrison and the whole anti-slavery society have been engaged in circumventing this old man, to induce him to make a will contrary to his own wishes. How stands the fact in relation CHANDLER AXD OTHERS vs. FERRIS. 463 to the testator's previous views? For several years he is proved to have had the amelioration of the condition of the blacks at heart. In his will of 1831 he made a liberal bequest to the African school, and a large one to the Colonization society. But the written in- structions for the will of 18.13, prepared by himself and written with his own hand forever put at rest any idea of undue influence on the part of Benjamin Ferris or any one else. These instructions are so identical in language in many parts with the will of 1831 as to show that he had that will before him when they were drawn up; and they have been carried out with sufficient accuracy in the will which is now the subject of discussion. 2 Ecc. Rep. 219, 269. A legacy in the instructions left out of the will is, not of itself sufficient to invalidate the will. J. M. Clayton, in reply, relied chiefly on the discrepancies be- tween the instructions and the will. He insisted that they were not even in substance the same. The instructions directed the disposal of the residue of his estate for the purchase of land on which a gram- mar school should be founded by the benevolence of other persons; and if not so founded within seven years, that it should go over to his nephews and nieces. The will as drawn disposes of the residue for founding a college, and gives it over to the nephews and nieces only in case the said college should not be commenced within seven years, and no other funds raised towards that object. The in- structions were designed to draw out the active benevolence of other individuals in the completion of a project of which Thomas Chandler only offered the foundation, and gave the property to his next of kin in the event of its not being completed within the limited time. The will makes Thomas Chandler not only begin but complete the establishment, and gives the property away from his kindred forever on the subscription of one dollar by any other person to the same object. It is perfectly competent for the trustees under the will, if they see proper, to subscribe every dollar of the residue of this es- tate to the funds (jf the anti-slavery society of New England, and, in conjunction with that society, to establish in Delaware, a slave hold- ing state itself and on the borders of the southern slave "holding states, an institution that shall forever wage war with their and our institutions, and shall finally overthrow them if it succeeds in its avowed objects. There is much evidence of imbecility of mind in the testator in this case; but it is not necessary for us to rely on his insanity. He is proved, at least, to have been a man of fluctuating capacity. And when the testator's capacity is fluctuating he is not to be consid- ered as absolutely intestable; but to set up such a will there must be evidence of instructions and volition. 3 Ecc. Rep. 260. How stands the proof on that subject? Here are instructions given in writing; a will drawn totally different from them; no proof of the departure from the instructions having been explained to him; no proof that the will was even read over to him; executed privately, in the presence of strangers, and in the house of the executor and trustee and "draftsman ; under these circumstances we confidentlv ask the jury to say that the paper now before them is not the last and testament of Thomas Chandler. 464 CRAWFORD'S LESSEE vs. GREEN. The Chief Justice charged the jury, (after stating the question and reviewing the evidence,) that if they were of opinion from the evidence that the testator was capable of exercising thought and judgment and reflection; if he knew what he was about, and had memory and judgment, his will could not be invalidated on the ground of insanity. Neither could it be set aside on the ground of undue influence, unless such influence amounted to a degree of con- straint such as the testator was too weak to resist; such as deprived him of his free agency, and prevented him from doing as he pleased with his property. Neither advice, nor argument, nor persuasions, would vitiate a will made freely and from conviction, though such will might not have been made but for such advice and persuasion. Another and more material ground of objection to the will is a sup- posed discrepancy between it and the instructions on which it was founded and from which it was drawn. If the jury are of opinion that these differences exist to such an extent as to make the will es- sentially different from the instructions, they must then judge from the evidence whether these deviations were made with the knowl- edge and consent of the testator. If they were not made known to him, if the will was not read over, or its contents and variations from the instructions otherwise explained to him, then this is not his will; but if he knew of and approved the alterations he adopted them by the execution of the will, and the same ought to be con- firmed. Verdict setting aside the will. J. A. Bayard and J. N. Clayton, for caveators. Laiimer, Read, jr. and Rogers, for executors. DOE, on the demise of WILLIAM H. CRAWFORD, vs. ROE, casual ejector, and CUTHBERT SEW ALL GREEN, tenant in posses- sion. Sheriff's deed essential to title by execution. Title under sheriff's sale and before deed executed not sufficient to maintain ejectment. The demise must always be laid after title accrued. EJECTMENT. Suit brought ninth November, 1833. Demise laid on the tenth October, 1833. The plff. derived title to the lands in dispute 'under a sheriff's sale on judgment and execution and deed executed conformable thereto. The judgment was recovered in a scire facias on a recognizance in the orphans' court, and bore date tenth May, 1832. On this judg- ment a fieri facias issued, returnable to the November term, 1832, which was returned levied on the lands in question; inquiry held and not sufficient. Venditioni Exponas returnable to Mav term, 1833, upon which fhe sheriff returned that he had duly sold the said lands to William H. Crawford, the plff.'s lessor, on the day of January, 1833, which palp and return were aoproved and confirmed by the court at the said May term, 1833, and the sheriff executed a deed to the said William H. Crawford, the purchaser, on the 25th of October, 1833. CRAWFORD'S LESSEE vs. GREEN. 4Ga Eodney, for deft, moved a nonsuit. The title of the plff.'s lessor rests on the sheriff's deed of the 25th October, 1833. It then ac- crued. The declaration sets out a demise on the tenth of October, 1833, some fifteen days previous to the date of his title. The plff. must show that his demise rests on sufficient legal title in the lessor at the time of the demise. This is an elementary principle. The demise must be laid after title accrued. Buller, 105; 2 Sellon's. Prac. 93. Bayard, for plff., did not controvert the principle if it applied to the case, but he thought that the title, though perfected by the deed, would have relation to the sale, or at least to the confirmation.- The sale of the land here was in January, 1833, and it was confirmed at the 'May term following. The act of assembly " concerning the ac- tion of ejectment" (Dig. 170) has provided that no objection shall be made to the form of action, or to the right of the lessor of the plff. to make the demise, if he could recover the premises in any form of action. The Court directed a nonsuit. The plff.'s title accrues from the sheriff's deed. It commenced with the sale, but was not perfected until a deed was executed; and though he has certain rights given to him by act of assembly as to rent from the time of sale and to pos- session in a summary way, the legal title is not in the purchaser until a deed is executed. In this state a deed has always been con- sidered necessary to perfect the title by execution and enable the purchaser to bring ejectment, (a) The sheriff seldom receives the purchase money, or, at least, all of it, until the deed is made. The practice is to require a deposit of ten per cent, at the time of the sale. The act referred to was intended merely to do away the old actions of assize and writ of right. To apply it to such a case as this would be to enable the plff. to recover on a mere equitable title. And even that is not shown; for there is no proof of the payment of the pur- chase money but what is furnished by the deed, and that is after the demise. Mr. Bayard suggested that the narr was against Roe, the nominal deft., and had not yet been altered for the present deft. Green, and asked if the court would not now permit an amendment. The chief justice said that the alteration was always presumed after the real deft, had appeared and entered into the common consent rule. The court would allow him to be substituted even after verdict and judg- ment. The plff. was nonsuited. J. A. Bayard, for plaintiff. George B. Eodney, for defendant. (a) 4 Kent's Com. 434. In those states in which the sheriff sells the land, instead of extending it to the creditor, he executes a deed to the pur- chaser, and it is held that the sheriff's sale is within the statute of frauds, and requires a deed or note in writing of the sale, signed by the sheriff. Si- monds vs. Catlin, 2 Caines Rep. 60; Barney vs. Patterson, 6 Harr. and Johns. 182. In Louisiana, the judgment must be recited in the deed ; and it has been adjudged that the sheriff's deed is essential to the title. Dufour vs. Camfranc, 11 Martin's Rep. 607 ; Durnford vs. Degruys, 8 Martin, 222. 466 BEESON vs. BEESON'S ADMINISTRATOR'S. McGLENSEY and WOLFE vs. JOHN McLEAR, garnishee of GOLDSMIT and GOUDKOP. Exoueretur entered on a bail piece on it appearing that the principal had been discharged by the insolvent laws of Pennsylvania. ATTACHMENT. Rule to show cause why an exoneretur should not be entered on a bail piece. The deft., McLear, was summoned as the garnishee of Goldsmit and Goudkop, on a writ of foreign attachment, at the suit of plffs., against the said Goldsmit and Goudkop. The defts. appeared and put in special bail to the action, and thereby discharged the garnishee and dissolved the attachment. Dig. 46. The bail now applied for an exoneretur, on the ground that the defts. had, previously to the attachment, been regularly discharged under the insolvent laws of Pennsylvania. Both plffs. and defts. are residents of Pennsylvania. The Court at first doubted; but, on consideration, they made the rule absolute. See ante 367: Bailey vs. Seal's special bail, and 8 T. Rep. 609. Rogers, in support of the rule. MARIA BEESON vs. JOSEPH BE.ESON'S ADMINISTRATORS. The act " concerning the entering of judgment bonds " is constitutional. Construction given to that act. The word tenor as used therein means only substance or import. Construction of the constitutional restriction against impairing the obligation of contracts. RULE to show cause why judgment should not be set aside. The judgment was entered, without appearance or declaration, by the prothonotary of the late court of common pleas, under the provi- sions of the act of assembly of 1830. 8 vol. 3. The entry was in the following words: " Maria Beeson vs. Joseph Beeson. D. S. B. $2,000. Judgment entered on a bond and warrant of attorney dated March 15th, 1830, in the penal sum of two thousand dollars, ^conditioned for the pay- ment of one thousand dollars in one year from the date, with lawful interest. March loth, 1830. Judgment. Jos. ROBERTS, Pro. Real debt, $1,000. Interest from March loth, 1830, at 5 per cent, per annum. March 15th, 1830, 4 o'clock P. M." Richard H. Bayard, for plff. showed cause. The question is on a construction of the act of sixteenth January, 1830, (8 vol. 3) under which this judgment was entered. The grounds of the mo- tion I suppose to be, that a full copy of the bond and warrant of at- torney is not set out upon the record; and secondly, that the act of assembly varies the contract of the parties and is unconstitutional. The act directs that the prothonotary shall " enter on the docket BEESON vs. BEESON'S ADMINISTRATOR'S. 467 the date and tenor of the instrument of writing on which the judg- ment may be founded/'' The word " tenor/' as a legal term, has two meanings; it means substance and it means copy: it means copy in reference to pleadings and indictments; every where else it means substance merely. Jac. Law Dictionary Tenor. Tenore presentium means the intent or meaning of the presents. In testa- ments, statutes and awards the construction shall always be such as the intent requires. 10 Coke, 576. Parliamentum, arbitramentum et testamentum are to be taken according to the intent of those con- cerned. I go further, and say that in the construction of laws words shall not be taken in a strictly technical sense, unless the intention of the legislature manifestly require it. 5 Coke 5, a. The maxim is loquendum ut vulgus, (4 Coke, 46 &) ; attained by verdict con- strued to mean convicted by verdict. Now there is no word more technical than attainted: it always follows and is the consequence of a judgment; there could not therefore be a stronger case than that of applying an act which in its terms refers to a person attainted to one who is merely convicted. The legislature directs the prothonotary to enter on the docket the date and te.n.nr of the instrument. You cannot reject either of these words, but must give them both force. Now if tenor means an ex- act copy, it includes the date, and makes this specification of date foolish. It therefore does not appear that the legislature used this word in a technical sense; but the contrary is manifest. On more general principles. The rules of construction point to the old law, the mischief and the remedy. The old law required the employment of an attorney at law to confess the judgment; it was, in practice, an act merely formal, and was regarded as unneces- sary ; this was the mischief : the remedy was to substitute the protho- notary in the place of an attorney, and authorize him to enter the judgment without a declaration. The act devolves a duty upon him as prothonotary, and he acts as the agent of the law, and not of the parties. The right of the legislature to pass such a law cannot be doubted : it affects the remedy and not the contract; the lex fori and not the lex contractus. It is so with insolvent laws and all laws operating merely on the remedy. But if the prothonotary has made a mistake in the construction of this law, and has entered the judgment informally, it is universally true that the court will amend the mistakes of their clerk. 8 Coke, 150; 1 Term. Rep. 782; 7 Term Eep. 207, n; 19 Vezey, 435. There is a great difference between amending mistakes arising from the act of the party and such as arise from the act of the clerk. Even where a clerk had entered a judgment de bonis propriis, which should have been entered de bonis testatoris, it was amended after error brought. The act of 1831 (8 v. 43) gives the greatest latitude of power in relation to amendments. It declares moreover that a confession of judgment shall be a release of all previous errors. Hamilton, ut amicus curiae, referred to two decisions in Penn- sylvania on an act precisely similar to ours, where the word tenor was held to mean merely substance or import. 7 Serg. and E. and 1 Eaivle. 468 BEESON vs. BEESON'S ADMINISTRATOR'S. J. A. Bayard, in support of the rule. Tenor, whenever em- ployed in reference to a legal instrument, means a copy verbatim. In common acceptation it has a wider meaning, but as a legal term it i& definite, well established and unvarying. I care not by what law the case is to be governed; if the principle contended for substitutes one person to do an act in the place of an- other agreed upon by contract, that law is unconstitutional and void. man authorizes an attorney by a power of attorney irrevocable to appear for him and confess judgment in favor of another; no judg- ment can be confessed by any other person, nor in any other man- ner, nor can any legislature authorize it to be done otherwise. The power of confessing the judgment is derived from the contract, and must be governed by the contract. The contract is itself unalterable but by the consent of both parties. Then as to the amendment. I deny that the act of the prothono- tary in the entry of such a judgment as this is an official act. The act points to him as an agent of the parties; the substitute of another agent. The court may amend misprisions of a clerk as such, but not when he acts in any other capacity. Suppose a power of attorney to the prothonotary and another jointly, executed by the prothono- tary alone, would the court hesitate a moment to set aiside such an execution of a power? Yet this goes not so far as the case before us, which is the execution by one person of a power specially delegated to another. I admit the constitutional authority of a clerk to sign a judgment in a case depending before the court, but deny his authority to docket a case without the consent of the parties for the purpose of signing judgment. The deft/s administrators, for whom I appear, have no interest in the settlement of the question; they merely wish a decision to pro- tect them in the administration of the assets. The question is how- ever of importance in reference to other cases similarly situated, and the principle involved is one of consequence. It is on this account only that I have urged the propriety of vacating this judgment. R. H. Bayard, in reply. The argument on the other side rejects all distinction between the law of rights and the law of remedies, a distinction which is well established. The latter may be altered at any time without affecting the contract. Second. It assumes that the prothonotary in entering a judgment acts not as a clerk or public officer, but as the agent of the party, which I deny. But, if he is to be considered as the agent of the party, the contract authorizes him. The contract is made in subor- dination to the law and in reference to it. The law becomes a part of the contract. It says that if a man executes a bond with a war- rant of attorney of a certain description, it shall be the duty of the prothonotary to enter a judgment on such bond. Whether, there- fore, the prothonotary in entering judgment acts as the agent of the party or as a public officer, he is equally authorized by the contract and the law. Curia advisare vuli. BEESON vs. BEESOX'S ADMINISTRATOR'S. 469 Harrington, Justice. "The judgment in this case was entered by the prothonotary with- out any declaration or appearance; b} r virtue of a bond and warrant of attorney in the usual form, and under the authority as it is con- tended of the act of assembly of 1830. That act makes it the duty of the Prothonotary "on the application of the holder of a bond in which judgment is confessed, or containing a warrant for an attorney at law or other person to confess judgment; to enter judgment against the person or persons who executed the same, for the amount which from the face of the instrument may appear to be due, without the agency of an attorney or declaration filed, with such stay of execu- tion as may be therein mentioned, for the fee of one dollar to be paid by the deft., particularly entering on his docket the date and tenor of the instrument of writing on which the judgment may be founded, which shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney or judgment ob- tained in open court and in term time," &c. The present application to set aside this judgment proceeds on the ground First. That it is not authorized by, nor in conformity with the act of Assembly; and Second That the act of assembly is un- constitutional, because it varies the contract of the parties and im- pairs its obligation. The question arising upon this rule is one of great consequence in principle, as it involves an inquiry by one branch of the government whether another and co-ordinate branch has not exceeded its legiti- mate powers ; and it is of much consequence in its immediate results in the case before us and many others similarly situated. And, though the court will act with delicacy and much deliberation in determining whether an act of the Legislature shall be received and regarded as the law, binding upon them and binding upon all, or shall be treated as a nullity; yet it is the right, and it is the duty of the judiciary to bring all acts of the legislative department to the test of the con- stitution, and keep them within the limits of its just authority. For though it be the law making power, there are limits to the exercise of this power; though it give law to the judiciary and to all other departments, it is not omnipotent, but derives its power subject to specified restraints, from the paramount law, the constitutions first of the United States and then of this State. And it belongs to the judi- ciary to decide whether these restraints have been disregarded, or in any manner violated; for, independent of the absurdity of leaving it to the legislature to decide upon the qualifications to their own power, it is the province of the courts to declare what is the law, and they cannot recognize and give the force of law to such acts of the legisla- ture as are contradictory to and inconsistent with the law paramount. By the constitution of the United States the several States are re- strained from passing any "law impairing the obligation of contracts." This is one of the restrictions on legislative power; and it is one which has given rise to much discussion and which has frequently been the subject of judicial interpretation. We are now to consider its operation on this case. Is it violated by our act of assembly? Does that act by authorizing a prothonotary of the court to enter 470 BEESON vs. BEESON'S ADMINISTRATOR'S. judgment on such a bond and warrant of attorney as this, impair the* obligation of this contract? The contract is a bond for $2000 con- ditioned to be void on payment of 1000; with a warrant of attorney appended, authorizing (in the usual form) any attorney in any court of record in the State of Delaware or elsewhere, to appear for the obligor at the suit of the obligee, and after one or more declarations filed for the said penalty thereupon to confess judgment to the said obligee, &c. Has the legislature the power to vary the mode of en- tering judgment on such a bond; to direct another person than an attorney to enter the judgment, without appearance or declaration, and does such direction impair the obligation of the contract? The true import of these words in the constitution has been settled by judicial construction in several cases. They have not been taken in their literal and fullest extent, but restrained by what was sup- posed to be the spirit and intent of the provision, and in conformity with public policy. In the case of the Farmers' and Mechanics' Bank vs. Smith, the supreme court of Pennsylvania say, "when multitudes are affected by the construction of an instrument, great regard should be paid to the spirit and intention. If the words impairing the obligation of contracts are to be understood in their greatest extent, the consequences are alarming. For all acts respect- ing divorce, all acts of limitation, all acts by which private property has been taken for public use or for the use of chartered companies for roads, canals, &c. would be void, because in all these cases con- tracts are impaired." A distinction has been taken and is established between a law impair- ing the obligation of a contract and a law modifying the remedy for enforcing the contract. It is recognized by the supreme court of the United States in Sturgis vs. Crowningshield, (8 Wheat. \.) and indeed it is upon this distinction that insolvent laws and acts of lim- itation are sustained. And yet it is not very clear to my view. If there be a contract for the payment of money, the means of enforcing the performance of that contract are of the very essence of the con- tract and constitute its obligation. A limitation law wholly takes away my remedy, and not only impairs but destroys my contract if I do not sue in the prescribed time. An insolvent law deprives me of my remedy against the person of my debtor; yet in the one case, the contract imposes an obligation of payment unlimited as to time; and in the other, confers the right of taking the debtor's person in execution. If from public policy the quieting of suits the relief of honest but unfortunate debtors and consequent encouragement of industry and enterprise; or from a supposed conformity with the spirit and intention of the constitution, the highest tribunals in the country have so construed this restriction on the legislature as to still leave them this extensive power over the remedies for enforcing a contract, can it be doubted that the legislature is competent to di- rect the manner in which judgment shall be entered on a bond itself authorizing the entry of a judgment? Another distinction has been taken equally important in its bearing on this case, and that is between the prospective and retrospective operation of laws varying or qualifying contracts. It has been said that the constitutional restriction was merely designed to prevent BEESOX vs. BEESOX'S ADM'RS. 471 the states from the manifest injustice of taking away vested rights and impairing existing contracts ; and that it was not designed to pro- hibit the states from making any prospective regulations in relation to the form, remedy or obligation of contracts. That the contract made subsequent to the law is made in reference to the law and sub- ject to it, and adopts its provisions as a part of the contract itself. The parties themselves knowing the law in reference to the subject matter of their contract are bound to conform themselves to it, and not by their individual will to repeal the law of the land. Thus in Blanchard vs. Russel (13 Mass. R. 1.) Chief Justice Parker says ''a law which is in force when a contract is made cannot be said to have that effect (of impairing the obligation of contracts;) for the contract being made under the law is presumed to be made in refer- ence to it and the parties are legally conusant of it at the time. The contract in such case is not impaired by the law, for the law is a part of the contract." In Mather vs. Bush, (16 Johns. Rep. 24:6.) Spencer, Chief Justice recognizes the same law. " It cannot be controverted (says he) that the parties to a contract are to be deemed conusant of the laws which regulate, control or affect their contracts; and in construing a contract for the payment of money, thus entered into, it must be understood in reference to any existing law which bears upon it, and may modify or control it/' Now before the contract in this case was entered into there existed a law of this state authorizing the Prothonotary, on the application of the holder of a bond containing a warrant to an attorney at law or other person to confess judgment, to enter judgment on such bond. With a knowledge of the law, and subject to it, the parties entered into a contract containing precisely such a warrant of attorney, they brought themselves within its operation and are bound by it. How can it be said that the law impairs the obligation of this contract ; the principle contended for would make the contract repeal the law. On the con- trary the law becomes a part of the contract as much so as if its pro- visions were inserted in it. And there is no such absurdity as was supposed in the argument that the legislature should appoint an agent to appear and act for another without his consent, or should substitute one agent for another of the party's own choosing; the prothonotary acts not as the agent of the party but of the law, the officer of the court authorized by the constitution (art. 6 sec. 23,) "to enter judg- ments according to law and the practice of the court." It is as much a clerical act on the part of the prothonotary as when he signs a judgment for want of a plea, the one being done by the express direc- tions of the law, and the other under the rules and practice of the court, and both equally authorized by the constitution. If I am right then in the opinion I have formed that this act of assembly is constitutional, it remains to be considered whether the entry of this judgment is so defective in point of form as to require that the court shall set it aside or treat it as a nullity. The act directs the prothonotary to enter the judgment "for the amount which from the face of the instrument may appear to be due" "with such stay of execution as may be therein mentioned" "particularly entering on his docket the elate and tenor of the instrument of writing on which the judgment may be founded." Though this act is loosely drawn it 472 BEESON vs. BEESON'S ADMINISTRATOR'S. is sufficiently apparent from it that whatever ma)' be the legal import of its terms, their spirit and intention require only a statement of the import or substance of the bond. The specification of the date is entirely conclusive that the word tenor was not used in its strictly technical sense, but in its common and usual signification. And, though I would not run into loose conjectures about the intention of the legislature, I cannot reject a plain indication of intention if it was even contrary to the usual meaning of the words. But in this case it is not. The word used has two meanings and it is evident that the legislature used it in that sense in which it is commonly used. We have seen also that even in the construction of constitutional law the courts do not hold themselves confined to the letter but will look be- yond it to the intent and spirit. And the plainest rules for the con- struction of legislative enactments direct our search not only into the spirit of the law but into the object and motive of the legislator. This law discloses its object. It was to avoid the necessity of em- ploying an attorney at law to confess judgment in the case of a bond and warrant of attorney in the common form. The necessity of em- ploying an attorney for this purpose is held out in the law as an evil it was the mischief to be remedied and the remedy applied is in authorizing the prothonotary to enter the judgment without the inter- vention of an attorney. Could it be supposed, even if the words of the law did not forbid such a construction, that they intended in the use of the word tenor to surround this remedy with such a form of technical precision as to make it inoperation or only to be used at the greatest hazard. The object was to facilitate the entry of judgments ; this construction would greatly increase the difficulty requiring as it does of the clerk a precision not before required either of attorney or clerk ; and making the consequences of neglect in the slightest par- ticular fatal to the judgment. But I rely chiefly on the words of the law without resorting to this inference, though I should be authorized to do so if necessary. I cannot not understand the word tenor to mean a literal copy of the bond without rejecting the word date which has a suitable and sensible meaning if tenor be construed to mean the import or substance. On the whole, though I consider the entry of this judgment very informal and loose, I cannot say that it is not a substantial compli- ance with the act of assembly ; and I am for discharging the rule. Robinson, Justice, concurred. Clayton, Chief Justice, dissented and assigned his reasons at length. He stated the rule to be, that in the construction of statutes you are to take the words in their common acceptation, unless tech- nical words be used, and then they are to be taken technically and according to their established meaning; he referred to Shelley's case to show that the intention of the testator would be sooner violated than that a word of art should be understood differently from its es- tablished meaning. Tenor is a technical word ; its meaning is as well established in reference to legal instruments as the meaning of the word "heir" in testamentary dispositions; and as a technical word it invariably means an exact copy. If in pleadings it must be so taken (and this seemed to be admitted) why not in reference to the entry of a judgment, which is the last stage and consummation of all pleadings. BEESON vs. BEESON'S ADM'R. 473 He would not say that the law under which this judgment professes to be entered was unconstitutional; but it is a law in derogation of common right and ought to be construed strictly. No one will doubt that a man in making a contract and delegating a specific power has the right to select the agent for the execution of that power; and it is, at the least, a violent and harsh exercise of legislative power to deprive him of this right. It is a principle in the construction of statutes that they shall be rendered as consistent with the natural principles of justice and common right as possible; and he thought there was a plain interpretation of this law that would satisfy all its provisions, give effect to every part of it, and yet make it entirely consistent with the contract of the parties. It would avoid the hard- ship and the absurdity of substituting one agent and attorney in the place of another, of the party's own choosing, without his consent. The act provides that it shall be the duty of the prothonotary on the application of the holder of a bond "in which judgment is con- fessed, or containing a warrant for an attorney at law, or other person to confess judgment" to enter judgment thereupon. Now if these words or other person enter into the bond and form a part of the warrant of attorney there is no difficulty in authorizing the clerk to enter judgment, for the contract authorizes him under the designation of "other person." He would take the words con- junctively and not disjunctively, and confine the prothonotary's power of entering judgments strictly to the case of a bond and war- rant of attorney authorizing in its terms "any attorney at law or other person" to confess the judgment. He thought this construction fully authorized by the terms of the act, and necessary to save, on the one hand, the rights of the parties; and to avoid, on the other, the arbitrary and oppressive exercise of power by the legislature which is involved in a contrary Construction. On this interpretation the entry of judgment in the present case is unauthorized. The warrant being to "any attorney of any court of record in the state of Delaware or elsewhere," does not extend to the prothonotary either by a special designation or in general terms. Rule discharged, R. H. Bayard, for plaintiff. J. A. Bayard, for defendant. 60 SUPERIOR COURT. SPEING SESSIONS, 1835. BUKTON W. WAPLES et al. vs. DAVID H. WAPLES. In an action of waste the plff. declared on a tenancy in common with the deft. ; the proof was of a co-parcenary. Held to be a fatal variance, though the action by our law lies equally between co-parceners as between joint tenants. The acts of an ageni; in the general course of his employment are evidence against the principal, without proof that they were done by his orders. CAPIAS case for waste. Plea, not guilty. Issue. The plffs. counted in an action on the case as tenants in common against their co-tenant for waste and injury committed by him on the land. It .appeared on the evidence that Woolsey Waples, the fathers of the parties plffs. and deft., died siezed of the land upon which the waste was alledged to be committed, about the year 1828, leaving the said plffs. and deft., his children*, and a widow, to sur- vive him. The widow's dower had been laid off in the land, and the residue remained undivided. That the deft, resided on the resi- due, and had cut a quantity of timber, out of which he had built a house on the premises, and had also cut and sold a considerable quan- tity of cedar posts. The deft, objected to proof by a witness, that he had seen his (deft.'s) servants hauling posts from the premises to market; but The Court said it was evidence to go to the jury. N The posts were cut and carried to market by the deft.'s agents in the course of their ordinary employment. If the witness knows that the cutting and hauling were by persons in the general employ of deft, and in the course of that employment, it may go to the jury without express proof that they were acting by deft.'s orders. Cullen, for deft, moved a nonsuit. The narr is in action on the case in the nature of waste. It sets out that plffs. and deft, are tenants in common of the locus in quo. The proof is that the hind descended on the parties as heirs at law of "Woolsey Waples, who died intestate in the year 1828. By the "act concerning the real estates of intestates," -passed in 1827, (Digest 315, ) the lands of an intestate " descend and pass in fee simple to the kindred, male and female, of said intestate, in co-par- cenary," according to the mode pointed out in that act. The vari- ance, therefore, between the proof and the declaration is fatal. 17 Com. Law Rep. 278; Comyn's landlord and tenant. 293. Again. If this were a tenancy in common the action would not lie. An ac- tion on the case in the nature of waste will not lie by one tenant in common against his co-tenant for cutting trees that are fit for cutting. 3 Stark. Ev. 1668. Each tenant in common has the right to cut, so that he does not make waste, and the cutting of ripe timber is not EUST vs. FLOWERS. 475 waste. The proof in this ease is of a cutting of ripe timber. The other tenants in common may recover their share of the value of the trees cut. 8 Term Rep. 145. The building of the house was a ben- efit and not a disadvantage to the inheritance. Coparceners cannot in any case bring an action on the case in the nature of waste against each other. They differ from tenants in common and joint tenants, because they at common law could always procure partition; but not so of the others. 3 Blac. Com. 226-7. The equity of the statute giving an action of waster between joint tenants and tenants in com- mon does not extend to co-parceners. This action cannot therefore be sustained at common law. I agree that our act of assembly (Dig. 166J extends the action to co-parceners; but the declaration in this case is not founded on the act, but is at common law. Layton. The deft, should have demurred. He is now too late. The narr sets out a tenancy in common, which by the old intestate laws was the condition of the heirs at law to an intestate. (\ vol. Del. Laivs, 85. ) The objection, therefore, if such an action is not sustainable at common law appears on the face of the declaration and should have been taken advantage of by demurrer. The Court. The first objection arises on the proof. The narr lays a tenancy in common ; the proof is of a co-parcenary. This is a fatal variance. The plffs. must be nonsuited on this point; it is therefore unnecessary to decide the other questions raised by deft.'s counsel. Judgment of nonsuit. Layton, for plaintiffs. Cullen, for defendant. PETEE N". EUST vs. CHAELES FLOWEES. In an action on the case, though for a tort, the deft, may justify under the general issue. CAPIAS case. ISTarr. Pleas, not guilty, and justification under written license. Issues. It was an action on the case by a landlord against his tenant for cutting down trees. Deft, offered to prove a verbal permission by plff. to cut the trees. Objected to. Frame. We do not contend that the deft, might not justify by a parol license, if he had pleaded such a license, or pleaded justifica- tion generally; but he cannot under the plea of a written license. The evidence offered is not compatible with any plea on the record. J. A. Bayard and Cullen, for deft. This is an action of trespass on the case, and not an action of trespass vi et armis. In the latter there can be no defence by way of justification without a plea; the defence admits the trespass, and excuses or justifies it. The deft, here is no trespasser. The plff. is bound to make out his whole case. Every matter alledged in the narr, or going to constitute the offence, is put in issue by the plea of not guilty. There need be no plea of justification. The deft, is in possession of the premises lawfully, and the landlord cannot make him liable unless Tie shows that the acts complained of were done without his consent. The narr alledges that these trees were cut by the tenant without the license 476 FERGUS'S LESSEE vs. ROBINSON. of the landlord. The plea of not guilty puts the whole narr in issue, and opens up evidence of any license, whether written or verbal. Frame, in reply. This is essentially an action of trespass; the deft, is a trespasser, but by reason of his being the tenant of the plff. who has but the reversionary interest in the land, he has to declare in this form of action. This is not case as in assumpsit, which is an equitable remedy founded on implied contract, but case in tort, founded on the wrong, a trespass in fact, and only not treated as such by reason of the relation of the parties. The Court admitted the evidence. See 2 Stark. Ev. 361. Frame, for plaintiff. Bayard and Cullen, for defendants. DOE, on the demise of JAMES FERGUS, vs. ROE and THOMAS BOBBTSON. A devise " to A and her heirs forever ; but if she should die before she arrives at lawful age, or has heirs lawfully begotten of her body, then to B," is a fee simple in A with an executory devise over to B, and not an estate tail. Or may be changed to and to effectuate the intention of the testator. EJECTMENT. James Fergus, by will bearing date seventh February, 1797, de- vised as follows : "I give and bequeath to my beloved daughter, Eliza Fergus, all my real and personal estate, to her and her heirs forever but if my beloved daughter Eliza Fergus should die before she arrives at lawful age, or has heirs lawfully begotten of her body, then my will and desire is that it goes to my brother Francis Fergus that was living in Rockbride county, Xew Virginia (when I heard from him last) to him, his heirs and assigns forever." Eliza Fergus married John Smith and died leaving one child, who died before John Smith and without issue. This ejectment, with others at the present term, was brought by the heirs at law of Francis Fergus the devisee over in the afsd. will of James Fergus under the idea that Eliza Fergus took but an estate tail by the said will. But the plff.'s counsel frankly abandoned this construction when the cases were called for trial, and ordered them discontinued, (a) (a) Note ~by Mr. Black. Where there has been a devise of lands to A. in fee, accompanied by a proviso that if he should die under age or with- out issue then over to B. in fee, there can be little difficulty at the pres- ent day either upon the obvious intent of the testator, or on well settled authority, in coming to a conclusion whether the estate given to A. is to be defeated on the happening of one of the events, or whether both must occur to deprive him of the estate in other words whether the word " or " is to be taken conjunctively or disjunctively. In construing wills the leading object to be sought for is the intention of the testator this, when ascertained, is to prevail, unless it conflicts with some settled rule of law. In the devise above stated, who is the first object of the testator's bounty, and who in the first place does he mean to benefit? unquestionably A. the first devisee. The second object is the children of A., for if he leaves children dying under age, B. gets nothing by the will. But if there be no issue and A. die under age then the property goes to the third object of the testator's bounty which is B.. Now would it MARTIN'S LESSEE vs. ROACH. 477 JOHN DOE; lessee of JAMES MARTIN vs. RICHARD ROE, casual ejector, and JAMES ROACH tenant in possession. SAME PLAINTIFF vs. ROE, and ISAAC WHITE tenant. A devise " to A. and her heirs forever, except she should die without an heir born of her own body " then over to B. is an estate tail in A. with a vested remainder in B. and not a contingent fee with an executory devise. The propriety of an order of the Orphans' court directing a sale of lands for the payment of debts cannot be controverted in any collateral proceeding. Under the old act of assembly the record of a deed was by the settled practice of the courts, permitted to be read in evidence, though such deed had not been recorded within a year from its execution. EJECTMENTS. The cases were tried together, depending on the same devise in the will of Mary Fergus. The devise was as fellows : comport with the intention of the testator so to construe the will that either the first or second object of his regard should be defeated and in their place the third object substituted, or that B. should take in preference to A. or the issue A. might have and yet this would result if you construe " or " as a disjunctive: whenever A. should die under-age, leaving issue to sur- vive him the issue would be deprived of the estate although they were the second object of the testator's regard, and B. the third object would be en- titled to it. The issue, though as in many cases grand children, would be excluded, and B. a more distant relative or stranger in blood would take the estate. It could not be his intention to disinherit his grand chil- dren or deprive them of the estate merely because their father A. had not at his death reached twenty-one. Again ; by the devise he gives to A. an estate in fee, but if you construe " or " in the proviso as a disjunctive, you in fact reduce it to a life estate; it would follow that A. neither could sell or mortgage it, for his estate would cease if at his death he left no is- sue living until his death it could not be ascertained whether his estate was one for life or in fee. To provide for A. and place the estate abso- lutely at his disposal if he attains age, and not limit him to a mere life estate because he has no children although he may have a wife and de- pendent family and to provide for the issue of A. if he dies before the age of twenty-one, and the period at which he could by will make provision for them, would seem to be the reasonable and obvious design of every testator in such a devise as that stated ; and to provide for B. only on A. failing to attain twenty-one, and leaving no issue. If a question can be held as settled by repeated adjudications, this, of construing " or " as a copulative, must now be taken as one of them, both in England and in this country. It was originally considered in the case of Soulle vs. Ger- rard in 1596 (CroTce Eliz. 525,) and the court inclined to consider " or " as a copulative after this repeated decisions have been made construing it in the same way : amongst these may be noted Barker vs. Suretees, 2 Strange 1174; Walsh vs. Peterson, 3 AtTcy 193, and 9 Modern 444 ; Framlingham vs. Brand, 3 Afky. 390; 1 Wilson 140; Colllnson vs. Wright, Siderfin 146-8; Price vs. Hunt, Pollexfen 645; Haribury vs. Cocherell, 1 Rolles ab. 334; Bcachcroft vs. Broome, 4 Term. 441; Lessee of Wilkins vs. Kimmeys, 9 East 366; Eastman vs. BaTcer, 1 Taunton 174. It was finally placed at rest in 1805, by a decision in the house of lords in the case of Fairfield vs. Morgan, 5 Bos. and Pull. 38. This construction has been adopted in the United States in the cases of Richardson vs. Noys, 2 Mass. Rep. 56 ; and 478 MARTIN'S LESSEE vs. ROACH. Fourthly. I give and bequeath unto my beloved daughter Eliza Fergus the remainder part of all my real and personal estate to her and her heirs forever except she should die without an heir Pay vs. Enslin, in the same book 554; Hauer's Lessee vs. Shitz, 2 Binney 532; ;} Yeates 241; Holmes vs. Holmes Less. 5 Binney 252; Lillebridge vs. Aide, 1 Mason 224; 2 Peters Rep. 568; Cheeseman vs. Wilt, 1 Yeates III; Jackson on demise of Burham vs. Blansham, 6 Johns. 54. This construc- tion has now become a fixed rule of property and ought to stand as a land mark not to be shaken or disturbed. The estate of A. is contingent and is settled and ascertained by either event occurring on either event hap- pening attaining age or having isstie the estate over is gone and the con- currence of both events is not necessary. But the important question re- mains of what estate is A. seized. Is it an estate in fee with a good limitation over by way of executory devise to B. in the event of both con- tingencies occurring; or is it an estate in fee tail, with a remainder over to B. contingent on the death of A. under age and without issue? There are a variety of cases in which this question or one very similar not to be distinguished from it in principle, has been agitated and de- cided. We have in Croke Eliz. 525 as early as 1596 the case of Soulle vs. Oerrard in which a father devises his lands to Richard one of his sons and his heirs forever; and if Richard died within the age of twenty-one, " or " without issue, that then the land should be equally divided amongst his three other sons: Richard died within age having issue. The court held the devise to Richard to be an estate tail; they rejected the limita- tion " dying under twenty-one," as void because a remainder or fee could not be limited after a fee, and construed the will as if there had been but the single contingency '* dying without issue." When this decision took place the doctrine of executory devises had not been defined or settled with any degree of certainty. This branch of the law was introduced for the purpose of carrying into effect the design and will of the testator ; for when it was manifest that the devisor intended to create a remainder contingent on some specified event, and when by the settled rules of law the proviso could not operate as a remainder, and the will in this way be carried into effect, courts of law cautiously and slowly held and recog- nized such limitations to be good by way of executory devise, out of in- dulgence to wills and in order that they might have the effect that it was clear it was intended by them. One of the earliest cases in which this principle was recognized is that of Fulmerston vs. Stewart, which was de- cided in the same year with the case of Soulle vs. Oerrard f!596j and is referred to in 1 Strange 130; Roll. 867; Croke Jac. 592. This was fol- lowed in 1619 by the case of Pell vs. Brown, Croke Jac. 590 which is the leading case in this branch of the law. The Duke of Norfolk's case (in 3 Oh. Cases 1 and 2 Ch. Rep. 229 J in the year 1635, and the case of Stephens vs. Stephens in 1736 reported in cases tempore Talbot settled with precision the limits of this doctrine. Had this doctrine been understood at the time when the case of Soulle vs. Gerrard was decided, as it is now settled, the court would not have decided as it then did that a fee or a remainder could not be limited after a fee and that the limitation "dying under age " should be rejected as " vain " or " void " and the will construed as though such provision had not been inserted in it. A limitation over af- ter a fee is by the law as now established held good by way of executory devise. If in the case in Croke Eliz. Richard had attained twenty-one and died having no issue, by the reasoning of the judges and the prin- ciples declared, the limitation over would have been good as a remainder, MARTIN'S LESSEE vs. ROACH. 479 born of her own body; then my will and desire is that all the last above real and personal estate goes to James Martin, him and his heirs forever" and the estate of Richard gone because they held " dying under age " a void limitation, and yet the courts at this day hold this limitation not void, but of great importance in ascertaining the nature of the estate de- vised, and would come to a contrary conclusion as to the estate of Rich- ard at his death. As the doctrine of executory devises grew into favor and became engrafted by decision into our jurisprudence, the limitation " dying under age " ceased to be held as " vain " and " void " and was laid hold of as evincing that when the testator in the other contingency used the words *' dying without issue " he did not intend to limit the term "heirs" used in the first part of the devise to heirs of the body, but by introducing that other contingency to provide a conditional limitation to another devisee not dependant merely on the " dying without issue." The devise in this will independent of the proviso gives clearly an es- tate in fee it is a vested fee defeasible only on the contingency in the proviso. That contingency is not a condition precedent, but when it oc- curs it operates to annihilate the estate given in the first devise and to carry into effect the estate given in the second devise. The estate in fee first given is only to be defeated or changed, if the daughter " dies under tige and without issue," for the authorities are conclusive that the word " or " in a devise like the present is to be taken conjunctively. If she at- tains twenty-one she is to have an estate in fee although she may have no issue. Is not this clearly the intention, of the father, that if his daughter attains age the estate is hers to do with as she pleases ; would not this de- sign be defeated by holding that she took but an estate tail. Her fee simple controul of the estate would be gone she could not devise it if she had issue one child would take and the others be excluded; and this too when the contingency on which she was to be deprived of an estate in fee never has occurred nor never can occur. Her estate in fee is, by the proviso, not to be defeated if she either attains age or leaves is- sue; she has left issue; the estate therefore first given is not altered. To hold this to be an estate tail would change the character of the devise against the express words of the will and the design of the testator you would impair the extent of the devise to the daughter if you permitted the word " issue " used in the proviso to restrict the word "heirs" to heirs of the body, when it is apparent from the other branch of the proviso that it is not to be impaired or the devise in fee defeated, if she attains twenty- one although she may leave no heirs of the body. Had the proviso con- tained the single contingency of the daughter " dying before she has heirs lawfully begotten of her body " there could be no question that the fee first given would have been cut down to an estate tail and the limita- tion over would be void as an executory devise as being too remote and founded on an indefinite failure of issue, for there being but a single con- tingency it would he manifest that heirs of the body were the only heirs the testator intended should inherit: but where he has said in effect, if not in terms, that the daughter shall not be deprived of an estate in fee if she left issue although she might not arrive at twenty-one, or if she ar- rived at twenty-one, although she might not have had or left issue, and she has either reached twenty-one or left issue, to hold that her fee was reduced to an estate tail, would do violence to the testator's intention. When to the words " dying without issue " there is added " or before 21 years of age " these latter qualify the estate first given with a collateral 480 MARTIN'S LESSEE vs. ROACH. The plff. began his show by a possession in Hannah Heavilo as far back as the year 1788. She continued in possession until her death, in 1796, and devised the premises in dispute to her three sons, John, determination and one different from the mere " dying without issue " and carry into effect a conditional limitation to another if the prescribed contingency (dying under age, also without issue) happen, and if it does happen a defeasance of the fee simple is effected but if the entire con- tingency, dying both without issue and under age does not happen, the estate as first given to the daughter, her heirs and assigns forever, is not altered or abridged or reduced to an estate in tail. The event on which it was to be divested has never taken place nor cannot, for the daughter died leaving issue, and it was only to be divested if she left no issue if she left issue or reached the age the first estate was to stand and that was a fee; she has left issue and had therefore an estate in fee at her death in the lands devised. The daughter therefore took an estate in fee under this will with an executory devise over to the brother of the testator in the event of her dying under age and without issue the devise over was good it was not to take place on an indefinite failure of issue but a failure within the daughter's minority, the age of 21 years, and was not therefore too remote. The devise over has failed, inasmuch as the daugh- ter did not die under 21 without issue: on her death leaving issue, the devise in fee became absolute. This construction of this devise certainly conflicts with the case of Soulle vs. Gerrard, but that case or the principle it assumes cannot now be recognized as law, and is in direct contradiction to almost all the cases of a similar character which have been since decided in the courts in Eng- land and in this country. In one case that of Hilliard vs. Jennings, re- ported in 1 Lord Raymond 505, 12 Modern 276 Lord Holt in referring to Soulle vs. Gerrard appeared to acquiesce in the decision there made of the estate being an entail, but the case of Hilliard vs. Jennings was decided on another point the want of competent witnesses to the will. Brown- sord vs. Edwards, 2 Vezey 243, was a devise to the son and the heirs of his "body and not in fee, and lord Hardwiche in construing it an estate tail said he would not have done this if the first devise had been to A. and his heirs, for on such a contingency courts had not changed heirs into heirs of the body. I have not been able to find any subsequent case which by express adjudication of the point confirms the principle in the case of Soulle vs. Gerrard that such a devise gives an estate tail; but on the contrary, wherever the limitation over has depended on a contingency like that in this will which has a double aspect ; or where two conditions, qualifications or circumstances are to occur, the courts uniformly refuse to consider the devise as creating an estate tail. Chief Justice Mansfield in Eastman vs. Baker, 1 Taunton 179 says " an estate tail has never been given upon a jvill like this where one of the contingencies is the event of a devisee dying under age." The following are some of the many cases found in the books declaring a devise like that in the present will to give an estate in fee and not in tail. Mr. Fearne in 2 vol. p. 18, cites from 1 Rolle's Ab. 334 the case of Haribury vs. Cockerel where a father devised to two sons in fee, each a tract of land, with a proviso that if either should die before he married or before he attained twenty-one, and without issue, then over to the sur- vivor in which it was held that the sons took in fee subject to a limita- tion to the survivor for life in case of either dying unmarried or under twenty-one without issue. In 1684, the case of Price vs. Hunt, reported MARTIN'S LESSEE vs. ROACH. 481 Roderick, and Edward Heavilo, in fee, to be divided, two shares to John and one share each to the others. She nominated John and Roderick her executors. John and Edward entered into possession in Pollexfen 645, and cited by Mr. Plumer and Mr. Hargrave in their ar- gument in the case of Fairfield vs. Morgan, 5 Bos. & Pul. 45, was de- cided : A. devised lands to his wife till his son B. should attain fourteen, and if she should die before that time then to B. his heirs and assigns forever ; and in case his son should die " before he should attain the age of twenty-one years or have issue of his body lawfully begotten living " then to the wife for life, and after her death to the testator's brother-in- law and his heirs. The mother died after B. came to fourteen, but before he arrived at twenty-one: B. attained 21, and died without issue. The heir of B. recovered the land, of course on the ground that B. took a fee, for there was no issue. In the case of Collinson vs. Wright, Siderfin 146-8; 4 Bacon 251 the testator devised his land to his son and heir, and if he dies before his age of twenty-one years and without issue of his body then living, the remainder over. The son arrives at 21 and sells the land and the sale held good for he had a fee simple presently, the estate tail being to commence on a subsequent contingency. In 1743, the case of Barker vs. Sureties was decided in the Court of Kings Bench and is to be found in 2 Strange 1174. That was a devise to a v grandson, his heirs and assigns, but in case he dies before he attains the age of twenty-one years or marriage and without issue, then over. The grandson attained 21 and died without ever having married. It was held that the attaining 21 was a performance of the condition and vested the estate absolutely in the grandson. In the case of Walsh vs. Peterson decided in the court of chancery in 1744, and reported in 3 Atky. 193, and also in 9 Modern 444, which was a devise of two thirds of all the testator's real estate to his son, his heirs and assigns forever; with a proviso that if his son die before he shall attain 21 years or without issue [In 9 Modern it is and without is- sue] then to the testator's wife, her heirs and assigns. Lord Hardwiche held it a vested fee in the son, as he had attained 21, though he died with- out issue, and descended to his heir at law. In 1746, the same lord chan- cellor decided the case of Framlingham vs. Brand which is to be found in 3 Atky. 390, and 1 Wihon 140. That was a devise to the testator's son Robert, his heirs and assisrns forever ; and in case he shall happen to die in his minority, and (in Wilson or) unmarried, or without issue, then to his son Henry and his heirs: Robert came of age and married but died without issue, leaving debts due by specialtv. It was held that Robert took a fe'e with an executory devise over to Henry, and that on coming of age, the limitation over was defeated, the estate vested in Robert abso- lutely and was subject to his debts due by specialty. In Beachcroft et al vs. Broome decided in 1791. 4 Term 441, it was held that under a devise to A. and his heirs, but if he die without settling or disposing of the same, or without issue, then over, that A. by settling or disposing of the estate in his lifetime defeated the limitation over, and that he had the rierht under snch a devise to do so. The case of Fairfield vs. Morgan in 1805, 5 Bos. & Pull. 38, originated in the court of common pleas in Ire- land, and was decided with the concurrence of all the judges in that court. On a writ of error taken to the king's bench in Ireland it was affirmed by that court one judge only dissenting. On a writ from the house of lords, it was heard at the bar of that house on a very able argument, and the opinion of the juderes asked for and taken, and on being given the pre- vious judgments were affirmed. The testator in that case devised all his 482 MARTIN'S LESSEE vs. KOACII. after the death of their mother: Roderick went off and has not been heard of for many years. Mrs. Heavilo's will was duly proved on the fourth January, 1796, and to prove the grant of letters testamen- estates to his brother, subject to an annuity of fifty pounds to his mother but if the brother should die under the age of 21 years or without issue living at his death, then over to his mother. The brother attained 21, oonveyed the estates and died without issue. Held that the word " or " must be construed " and " and that the mother took nothing on the death of the brother as on attaining 21 the absolute estate vested in him. In this opinion all the judges both in England and Ireland concurred with one single exception. In 9 East 366 is the case of the lessee of Wilkins vs. Kimmeys which was a devise to A. for life remainder to B. and her heirs, but if B. die before A. or without heirs of her body, over to C. : or was construed " and " and it was held that the devise over could not take effect unless B. died before A. and without issue. The devise to A. was held to be a fee if the property was freehold, of which there was some question (See the opinions of lord Ellenborough, chief justice, and jus- tice Blanc.) The case of Eastman vs. Baker in 1808, 1 Taunton 174, was a devise to a daughter and her heirs forever, but if she should die with- out issue or not having attained 21, then over, was held to be an estate in fee with an executory devise over contingent on the daughter dying in the lifetime of the mother under 21 and without issue. The lessee of Day vs. Day, 16 East 67 was a devise to a son in fee ; but in case the son die un- der 21, or shall have no issue male or female, then over to his daughter in tail, she being surviving. The son attained 21, left issue and devised the estate to his wife. The son of the devisee, the heir in tail, brought the ejectment and it was held that the son took under the devise an estate in fee and not an estate tail. The principles established in these cases have been recognized and sus- tained by several decisions in the United States. In Ray vs. Enslin in 1799 in 2 Mass. Rep. 554, where lands were devised to testator's wife for life, and after her decease, to his daughter and her heirs forever; but in case the daughter should die before she came to age or had lawful heir of her body, then over, it was held that the daughter took an estate in fee simple, defeasible on the contingency provided for. This case is cited in 5 Binney 255, and in 4 Bacon (Wilson's Ed.) 293, as is also the case of Richardson vs. Noyes, 2 Mass. Rep. 56, to the same point. In Ray vs. Enslin the daughter attained age, had issue and alienated the land, and the question in this case was between tbe issue and alienee of the daugh- ter. Hauer's lessee vs. Shitz, in 1807, 2 Binney 532, was a devise to a son and his heirs forever, subject to the payment of a sum of money to his brother; and in case the son should die under 21 or without issue, then over: and was held a fee simple in the son with an executory devise to take effect on his dying under age and without issue and that as the son attained 21, though he died without issue, the estate descended to his heir. In 1812, Holmes vs. Holmes' lessee was decided and is reported in 5 Binney 252. It was a devise to a grandson, his heirs and assigns for- ever, to be entered on and taken possession of as soon as he arrives at 21, or marries. But if he die under age or without issue, then over : and it was held that " or " should be read " and " and that the devisee having at- tained 21, his estate became indefeasible and descended to his heir at law. In 1810 in the state of Newyork the case of Jackson on the demise of Burham and wife vi. Blansham was decided and is found in 6 Johnson 54. The devise was to six children in fee in equal shares : but if any one MARTIN'S LESSEE vs. ROACH. 483 tary the plff. gave in evidence a testamentary bond of the same date, filled up in the names of John and Roderick Heavilo as principals, and James Elliott as surety, and conditioned, in the usual form, for the faithful administration of Hannah Heavilo's estate by John and Roderick Heavilo, her executors. This bond was executed by John Heavilo and James Elliott only. John Heavilo's by his last will and testament, duly proved and allowed, constituted Benjamin Johnson his executor, who took out letters and gave bond and surety in due form. The pfff. then offered in evidence the petition of Benjamin John- son, executor of John Heavilo, who was the executor of Hannah Heavilo to the orphans' court of Sussex county for an order to sell the land of the said Hannah Heavilo for the payment of her debts, the order thereupon, and the return of the sale made to Mary Fergus. Objected to. Bayard. Hannah Heavilo left as her executors John and Rode- rick Heavilo. Roderick never renounced, and he was entitled at any time to take out letters. The execution of the will survived to him on the death of John Heavilo. Benjamin Johnson as his execu- tor had no right to interfere with the administration of Hannah Hea- vilo's estate, and the proceedings in the orphans' court on his petition were altogether irregular and void. 2 vol. D. L. 891. The entire authority survives to the surviving executor, (Toller, 67, 40-41,,) and even if one renounces he may take out letters after the death of the other. Unless it can be shown that Roderick died before John Heavilo, the execution of the will devolved on him at John's death. And the grant of letters, if proved at all in this case, is a joint authority to John and Roderick, for the testamentary bond is conditioned for the faithful administration of this estate by them both, and styles them both executors. Frame, for plff. No doubt at common law, where there are joint executors and one dies, the execution survives to the other; but our of them should die without issue or before they arrive to full age then his share should go over to the survivors : one of them attained 21, mortgaged his share and died without issue. It was held that the devise to him be- came absolute on his arriving at 21 and that the holders under his mort- gage had complete title. In Lillcbridge vs. Aide, 1 Mason 224, cited in 2 Peters Con. Rep. 568 it was held that a devise over after a fee in case the original devisee should die before he came of age or without issue was a good executory devise and that tbe original devise became an absolute fee by the devisee attaining age or dying having issue. In 1813 the case of Barnitz's lessee vs. Casey was decided by the supreme court of the United States and is reported in 7 Cranch 456, and 2 Peters Con. Rep. 561. Catharine Barnitz by her will devised to John McConnell in fee two tracts of land and provided that if John McConnell should die under aroof of his license : and would not Houston in this case be put to the proof of the contract, the payment of purchase-money and the failure of the bargain in an action of money had and received to recover his noney back? 1 Mad. Ch. 378; Sugd. Vend. 83, &c.; 1 Swanst. ]81; Amb. 586. I agree with the other side that the mere loss of tie bargain is not a ground for the court's interference; but the party must be placed in such a condition, by reason of his part performance of the agreement, as that it will be a fraud on him if the agreement be not fully executed. In this case there is not only a payment of a large portion of the purchase money, acknowledged to be in exe- cution of the contract, but the complainant has done other acts in 68 538 TOWNSEND vs. HOUSTON. further execution of the contract which can be neither recalled nor remunerated but by completing the contract. Thus he became surety for Townsend in his recognizance in the orphans' court and incurred a liability which is not even yet removed. He also, on the faith of the contract, endorsed Townsend's note in bank for $1577 50. It is true this liability is removed; but it was done by the respondent without his consent, and with a view to invalidate the agreement. It does not therefore lie with him to set up his own wrongful act, in violation of his contract, to avoid his contract. If the court should be of- opinion that in this case the statute of frauds- does not apply, and that it ought to give relief; but should doubt, on the present state of the proof, as to any of the terms of the agreement, either as to the property sold, the consideration, or any other particu- lar; this court will, as a court of chancery would, struggle to probe the case to the bottom and prevent a fraud; and for this purpose will direct an issue, refer to a master, or take other means to get at the terms of the contract. Sugd. 92 &c.; 1 Vezey, Sen'r. 221 ; 2 Vezey, Jr. 243; 1 Sch. and Lef. 1; Viner's Abdgt. 523; pi. 4 38; 6 Vezey, Jr. 470-1 ; Dig. 103. Second: A substantial proof of the contract set out in the bill will be sufficient. It need not be proved in the terms used by the solici- tor in drawing the bill. A court of equity sticks not to the letter; but is satisfied by proof of substance. Thus an agreement to join in the acceptance of lands in the orphans' court is satisfied by proof of becoming surety in the recognizance on such acceptance, that be- ing the only way in which a stranger can join the heir at law in the acceptance of intestate lands; and that being the evident meaning of the agreement. The property intended to be sold, and the consid- eration, can be clearly made out by the proof to be the same as stated in the bill : but, if it could not, the court would not dismiss the bill on that account, but would resort to means in its power of obtaining satisfactory proof on these points. J. M. Clayton, in reply, for appellant. Before examining whe- ther payment of purchase money is a sufficient part performance of a parol agreement to take it out of the statute of frauds, I shall deny that there is in this case sufficient proof of a definite agreement even by parol. It is not denied that in all the cases where a parol agree- ment has been executed on the ground of part performance ; the agree- ment itself has been either admitted or fully proved. The contract must be distinctly made out, and all the acts relied on as a part per- formance must be referable to the contract and not to some contract undefined, or to any other contract than that stated and proved. The complainant will not be allowed to make experiments on the charac- ter of his proof by stating one agreement and proving a different one; keeping in view the danger of perjury which the statute was intended to avoid, and the peculiar character of bills for specific per- formance, he will be held strictly to the proof of whatever contract he alledges to have been made; and if he fails to establish it in all its material parts, his bill will be dismissed. The contract stated in this bill is, " that the complainant should join Townsend in the accep- tance of, and that Townsend should sell and convey to complainant one half of the residue of the real estate of Thomas Townsend de- TOWNSEND vs. HOUSTON. 539 ceased. The conversation preceding was about joining him in the acceptance; the agreement was to join in the acceptance. It was not a contract to become the surety of Townsend on his acceptance of the land. They were to be partners; both to take title under the assignment; each to bear part of the expenses. Now this contract has never been performed nor can it be performed, as the decree of the orphans' court assigning all the land to Townsend makes it im- possible. Neither does the proof of the property about which the contract was made, meet the -allegations of the bill. The receipts are " in part pay of the one half of the Middleford property which I have sold to him,"- - and again, " in part pay of the half of the mill property &c. in Middleford;" and the testimony speaks loosely of the Townsend property. Does this answer the description of " one half of the residue of the real estate of Thomas Townsend, deceased?" What proof is there of it? And there is equal uncertainty as to the price. Second: The decree is that Barkley Townsend the re- spondent shall account for one half of the rents from the 10th of March, 1832, a period before he had possession of the land, or was entitled to it in any other manner than to his undivided share of his father's estate. The decree assumes a title in Houston from the 10th March, 1832, because on that day Townsend received $600 00, and agreed to make a deed " wlien called for." Now if this were a suf- ficient written agreement, not within the statute, he could not be entitled to the land until he called for a deed, which he did not do until February, 1833. The decree is therefore erroneous in this re- spect. Third: I come then to the question whether a part payment of purchase-money takes a parol agreement for the sale of land out of the statute of frauds and entitles the party to a decree for a specific execution; and I lay it down that by the law of England and of this country neither part payment nor payment of the whole of the pur- chase-money will take a case out of the statute. And it makes no difference that the payment is proved by writing, unless the writing itself contains a memorandum of the agreement sufficient to satisfy the statute. I take up the case relied on by Mr. Frame (Lacon vs. Mertyns, 3 Atk. \;) and notwithstanding his sneer on Sugden, I hold that, on this subject, Sugden is an authority not inferior to Lord Hardwick himself. After reviewing all the cases he says of the case in Atkyns that it was only a dictum. Is this true? The answer admitted the contract; and it was a contract in writing; how in such a case could the question come up broadly whether part pay- ment took a parol contract out of the statute? All the mischief against which the statute was designed to provide is avoided by the admis- sion of the contract. The case is otherwise unsatisfactory. Atkyns : s a slovenly and inaccurate reporter ; and so known to be. The coun- sel intimated that Sugden considered the point as settled until the decision of Lord Eedesdale in Clynan vs. Cook. But Sugden ev- idently treats it as an unsettled point, and in reviewing the cases apparently leans against the doctrine; and he welcomes the decision :n Clynan vs. Cook, as finally settling the law on that subject. It is remarkable that two of the -greatest lawyers in existence should have been atithe same time considering this question; one in England ?.nd the other in Ireland ; and that both should come to the same con- 540 TOWNSEND vs. HOUSTON. elusion. Itoberts though generally a frothy writer did consider this subject as fully as he was competent to investigate any subject; and lie regrets that a direct decision had not been made against the prin- ciple; and he also, after receiving the case of Clynan vs. Cook put it in his preface as settling a question which in his text he had treated of as doubtful. Buckmaster vs. Harrop (7 Vezey 346,) is fully answered in Clynan vs. Cook. The remark referred to in Wayne vs. Melden, (4 Vezey 720J was a mere obiter dictum; so says Sug- den, (page 89) Freeman, 281, is a statement of counsel and no de- cision; and 4 Vezey, Jr. 39 note, is nothing but a remark of the editor. Bacon's Abridgment is of doubtful authority, and of no weight unless supported by references, and Peter's Cir. Ct. Rep. is rather against the other side. I deny therefore that the question has been considered as settled against us before the case of Clynan vs. Cook; and since that case the law has been considered by all the writers as settled the other way. I refer generally to Newland in his able review of the subject, and to Hovenden as cited before. Suppose the court should think from the proof that there was some contract about the sale of this land but are uncertain as to its terms, will they, as suggested by the other side, send an issue? Can any case be found where, after publication of the testimony when the parties know what each witness has sworn to and in what respect they have failed to come up to the point after a cause is set down for hearing heard determined appealed from and heard on appeal the case has again been fully opened and the parties permitted to prove any thing they could before a jury. This would be to throw the doors wide open to perjury; and avoid all the beneficial effects of the statute of frauds. It is insisted that this contract must be exe- cuted or that Houston will be defrauded. It is said he entered into recognizance and became liable to loss. What is this responsibility? a recognizance for $7500; on which $600 has been paid and the rec- ognizance a lien on all the property for the balance. But he endorsed also in Bank. He was relieved of that responsibility the moment he complained of it. There is then no fraud. There is nothing in the case but the payment of money which can be recovered back in an action at law. The Chancellor (Johns Jr.) assigned the reasons for his decree at length. After stating the case as before, pp. 325, &c. he proceeds: The decision of this case appears to me to depend on that of two ques- tions. First: Whether there has been a part performance. Second: If there has, then whether the terms of the parol contract as set forth in the bill are clearly proved. It is now settled, that equity does decide upon equitable grounds in contradiction to the positive enact- ment of the statute of frauds; and in cases of part performance, will admit parol testimony to prove the terms of a parol contract, relative to land. Hovenden Tit. Spec. Per. 1, 2. The ground of equitable interposition, is the prevention of fraud: Vide Foxcraft, vs. Lis- ter, Colles Parl. Ca. 108; Jeremy's Eg. Treatise, 437; 2 Atk. lOf); 1 Br. Ch. Ca. 417 ; 1 Svanst. 181; 7 Ye*. 341; 3 Fes. 39-40 nnfl note; Parkhurst vs. Vancoiirfland, 14 Johns. Rep. on Appeal. Whether payment of part of the purchase money is such a part per- TOWXSEXD vs. HOUSTON. 541 formonce as takes the case out of the statute, appears to be an unsettled point and the decisions are contradictory. 1 Madd. 379; tiugdcn Ven. 81 to 85. The early decisions upon the subject are, Lord Pengal vs. Ross, 2 Eq. Ca. Ab. 46; Seagood vs. Meale, Prec. in Ch. 560; Luke vs. Morris, 2 Ch. Ca. 135; these are generally cited as authorities to the point that it will not, but I would remark with respect to them, that they are adverted to in subsequent decisions as cases in which only a small sum was paid as earnest; and in 3 Atk. 1 ; 3 Ves. 37 ; 4th Ves. 720 ; it is held that part payment of the pur- chase-money does take the case out of the statute upon the principle of part performance. These decisions have been objected to as extra judicial by Sugden and nothing more than dicta; he refers to one made by Lord Eedesdale as conclusive; 1 Sch. and Lef. 41. Upon looking into this case it appears to me, the contract was in writing, " the sum paid was in the agreement stated to be a deposit, and in- terest to be paid, if possession not delivered;" the plff. seeking a specific performance of this written contract, which was under seal, attempted to supply by parol proof one of the terms alledged to have been omitted. It is true in this case Lord lledesdale does take up the question whether part payment is part performance; and reasoning upon the case before him and its circumstances concludes therefrom and also from the peculiar phraseology of the English stat. of frauds, that part payment of purchase-money does not take the case out of the statute of frauds; for he says, the great reason, as I think why part payment does not take such agreements out of the statute is, that the statute has said that in another case, viz: with respect to goods, it shall operate as part performance. And the courts have therefore considered this as excluding agreements for lands, because it is to be inferred, that when the legislature said it should bind in the case of goods and were silent as to the case of lands, they meant that it should not bind in the case of lands. As this distinction does not exist in the act of assembly about contracts and assumptions, which is the act relied on by the deft, in this case, it may be ques- tioned whether Lord Redesdale's opinion can have any influence, es- pecially as his reason does not apply. So far as 1 have been able to trace the question in the American decisions upon the point of part payment ; they accord with decisions and dicta of Lord Hardwicke and Eosslyn. In the case of Wetmore vs. White, 2 Caine's Ca. in Error; (New York) Thompson, J. in delivering the opinion of the court, (pa. 109) says expressly, pay- ment of the consideration money had always been held as a part per- formance. Judge Eeeve under the title, "Powers of Chancery," in his treatise on Dom. relations, has, after stating the conflicting de- cisions on this point, remarked in his peculiar manner, " that if it be no fraud to receive anothers money on the footing of a parol agree- ment, and then to refuse the fulfilment of the agreement, then the cases in Prec. in Ch. Eq. Ca. Ab. & Sch. & Lefroy, are correct, if the governing principle of the interference of chancery was to prevent fraud ; but if it be fraud so to do, then they are incorrect and the cases in Vern. 3 Atk. & 4 Ves. are correct, which proceed on the ground that the prevention of fraud was the reason why they were supposed not to be within the statute. Jus. Washington, in the case of Thomp- 542 TOWNSEND vs. HOUSTON. son vs. Tod, 1 Peters. Cir. Ct. Rep. 388, says, "although it should be admitted, that under all the circumstances of this case, payment of a part of the purchase-money will amount to a part performance, still it should appear beyond all reasonable doubt, that the payment was understood by the parties to have been so made and intended. This opinion of Washington, J . accords with the principles as laid down in Powell on Cont.; and 1 Bac. Ab. 74, tit. Agreement. I will refer to what is said by Bacon upon the subject of part perform- ance as it recognises essential principles and states the rule of evi- dence with respect to the payment of purchase-money. Under the title of Agreement, Bacon says There are several cases, on which it has been held, that a parol agreement in part executed shall be per- formed in the whole ; but as those cases are not exactly stated or well reported, it will be sufficient to mention what seems to be the sense of them, and what with any justness can be collected from them, that if an agreement be made concerning lands, though not in writ- ing, and the party by whom it was made receives all or part of the money, equity will compel a specific performance of the whole agree- ment; because this is out of the statute, which designed to defeat such agreements only, no part whereof were carried into execution, and set up merely by parol ; for that was the occasion of frauds and perjuries, that persons used to impose verbal agreements upon others, and by such false oaths charge the parties in equity to perform such agreements though they had never been made, and therefore the mere parol proof of such agreements concerning lands cannot be admitted in a court of equity; but where the price is paid, there it doth not stand upon the parol proof of the agreement only, but upon the execution of part of the agreement, which is evidence that the agreement was really made; and therefore there is the same reason that the plff. in equity should have the land for his money, as it is that he should deliver the goods where he has received the money; but the doubt in these cases is, what shall be a proof of the receipt of the money. Thus far it seems certain, that if the deft, in his answer, confesseth the receipt of the money for that purpose in the bill, or if he denies the money, and it be proved upon him by wri- ting, as by letter under his hand, or other written evidence, he shall be obliged specifically to perform the whole agreement, because he hath carried part into execution; but if the deft, confesses the re- ceipt of the money, but says that he borrowed it from the plff., and that he had it not in execution of that agreement, there he turn- the proof of the agreement upon the plff. and then the plff. must prove the receipt of the money by the deft, for the purpose in the bill, by some written agreement, (note &.) for parol evidence as to the receipt of the money, seems to be as much excluded by the stat. as parol evidence relating to the agreement. From the investigation of the several cases, I came to the conclusion, that there may be ca- ses, in which payment of the whole or part of the purchase-money will amount to performance of a parol contract concerning lands; and whenever the non-performance on the part of the vendor after receiving the purchase-money or a part thereof would put the party into a situation that is a fraud upon him, unless the agreement is per- formed, the court upon the principle of preventing fraud should de- TOWNSEND vs. HOUSTON. 543 cree a specific performance; provided the terras of the agreement can be satisfactorily ascertained, that is, the agreement as set forth in the bill. The act relied on as part performance should be such as would not have been done independent of some corrtract or agreement rela- tive to land; because as you are from the act performed to infer a contract, it must therefore be an act of that description, which will not admit any other inference. I would further remark, that the act must to a certain extent be a joint act, or such as clearly in- dicates mutual assent; thus entering into the possession of land as owner and with the consent of the vendor, has uniformly been con- sidered and admitted to be part performance, and being evidence per se of an agreement for and concerning the land, the party seeking specific performance, is permitted, by parol, to prove the terms. This act of the vendee in entering upon the land and taking posses- sion thereof as owner, with the assent of the vendor, is considered as in execution of an agreement and therefore a part performance; but acts which are only preparatory such as giving directions for conveyances, taking a view of the estate or putting a deed into the hands of a solicitor to prepare a conveyance, are not considered part performance. Clerk vs. Wright, 1 Atk. 12; 6 Bro. Par. Ca. 45; 3 Bro. Ch. C. 400; 1 Mad. 381. So likewise where there was a parol agreement for a compromise and a division of the estate by ar- bitration, acts done by the arbitrators towards the execution of their duty, such as surveying, &c. were not considered as acts of part per- formance, 6 Ves. 41. And where there was a parol agreement for the purchase of a lease, and that upon the plff. procuring a release of right from a stranger, the deft, would convey, and the plff. procured the release for a valuable consideration, this was held not to be a part performance entitling the party to a specific performance, 2 Cox. 271. These cases and particularly the last clearly evince the principle, which is essential to constitute an act, a part performance ; the thing done must be, as before stated, in execution of the con- tract, and not as preparatory or as inducement. See Gevins vs. Col- der, 2 Des. 190. Hence has arisen the difficulty with respect to the payment of money, not being such an act as of itself is conclusive, for it may have been made for a purpose different from that alledged and if the party paying can by parol prove the fact of payment and the object, then it is apparent the door is open to perjury and fraud, and the statute would be rendered useless and its provisions defeated. This has no doubt given rise to the opinion that payment of money either in part by way of earnest or in full for the purchase is not a part performance; if the fact is to be established by parol, then I should consider the opinion to be well founded, but if the fact of payment, is connected with the concurrent act of the vendor re- ceiving and appropriating the money paid as purchase-money and this appears either by the deft, in his answer confessing the receipt of the money for that purpose as charged in the bill, or if denied 'it be proved upon him by writing, as by letter under his hand or other written evidence; or if the deft, confesses the receipt of the money, but says he borrowed it from plff. and had it not in execution of the agreement, then if the plff. prove the receipt of the money by the deft, for the purpose in the bill by some written agreement; in all such cases and upon every principle it seems to me such a fact thus 544 TOWXSEND vs. HOUSTON. appearing would be conclusive evidence of an existing agreement of which it was part performance and which the deft, having carried part into execution should be compelled specifically to perform the whole. In the case now under consideration, the complainant in his bill has charged the payments made on account of the purchase-mon- ey and in execution of the agreement set forth. The deft, in his answer admits the receipt of the money, as an advancement, pending the treaty for sale, but denies that said advancements were a part per- formance of an agreement to sell and convey the said real estate or any part thereof to complainant, and also admits the two receipts. As the answer here admits the receipt of the money and denies that it was in part performance, we must recur to the receipts of 10th March, 1832, and April 17th, 1832, which are admitted by the deft, and proved by the witnesses to be signed by him; these receipts unequi- vocally establish the fact of part payment to the amount of $1400, nearly one half the purchase-money as set forth by the complainant in his bill; the deft, has also admitted the proceedings in the or- phans' court relative to the acceptance, and has not denied the matter stated by 'the complainant as to the inducement why he entered as surety in the recognizance. The equity of the complainant as thus presented is strong and a case could not occur more in accordance with the rule as laid down by Bacon that that which appears from the two receipts. The deft, by the first receipt dated March 10th, 1832, has not only acknowledged the receipt of $800, but also says " which is in part pay of the half of the mill property in Middleford which I promise to deed when called on." The proceedings in the orphans' court of the same date show the property and the accep- tance by the deft, fix the quantity; thus the subject matter of the parol contract and to which the receipts refer by name, as the mill property in Middleford, is ascertained; a moiety of which, the deft, by said receipt declared he had sold complainant; and by the accep- tance, it is proved to be two-thirds of the residue of the Middle- ford property, which deft, accepted at the valuation of which a moiety or half part he sold to the complainant. This is- a question which as it relates to the terms of the contract will be hereafter con- sidered and properly belongs to the second question to which I will now advert; and, under the circumstances of the case, being of opinion that the payments on account of the purchase-money made and pro- ved as afsd. are such acts as amount to part performance, I will now take up the second question, viz. whether from the testimony in the case, the terms of the agreement set forth in the bill are clearly proved. It being the settled rule of the court of chancery that where a con- tract relating to an interest in lands has been executed by one party, or carried partly into execution, it may be proved by parol evidence and specific performance decreed, in order that one side may not take advantage of the statute, to be guilty of fraud (I Ves. 221, 297; 2 Johns. Rep. 221, 573, 587; 1 Scrg. &Rawl. 80; 5 Day 16; Park- hurst vs. Vancourtland, 14 Johns. Rep. on appeal 15. And from the circumstances of this case as I was of opinion that the part payment of the purchase-money is a part performance of the contract set forth in the bill, the next consideration was whether that contract was made TOWNSEND vs. HOUSTON. 545 out by clear and satisfactory proof. Upon this subject Sugden 86, re- marks, It may happen that although an agreement be in part perform- ed, yet the court may not be able to ascertain the terms, and then it seems the case will not be taken out of the statute. If however the terms be made out satisfactorily to the court, contrariety of evidence is not material (1 Ves. 221) and the court will use its utmost endeavors to get at the terms of the agreement. (2 Ves. 243 ; 2 Sch. & Lef. 1 ; 5 Vin. Abr. 523; PL 40; Ib. 522; PL 38; 6 Ves. jr. 470; 3 Br. Ch. 139 ; 1 Sch. & Lef. 22). In 6 Ves. jr. 470, Boardman vs. Mostyn, Ld. Elden says; perhaps if it was res integra the soundest rule would be that if the party leaves it so uncertain, the agreement is not taken out of the stat. sufficiently to be enforced : but in all the cases in equity, the court has at least endeavored to collect if they could, what were the terms the parties have referred to. Sugden on Vendors, 89, after stating the case lately decided by Lord Manners, and remarking that great reluctance had been manifested in carrying parol agreements into execution on the ground of part performance, where the terms do not distinctly appear, observes that notwithstanding the case de- cided by Lord Manners, there appears to be abundant authority to prove, that the mere circumstance of the terms not appearing, or being controverted by the parties, will not of itself, deter the court from taking the best measures to ascertain the real terms. And Sug- den further remarks, that it can rarely happen that an agreement cannot be distinctly proved where the estate is absolutely sold: most of the cases on this head have arisen on leases, where the covenants &c. are left open to future consideration. If from the testimony it is difficult to ascertain the terms of the agreement, the court to re- move all doubts direct an issue. Hence in the case now before the court, if I am correct in the opinion I have expressed on the first point as to part performance, then it would be incumbent on the court to ascertain the terms of the contract, or if this could not be done to direct an issue as to such facts as may not be clearly proved or estab- lished. The only fact about which there can be a doubt in the present case, is the price. The subject matter of the contract and the quan- tity thereof sold, and for which the deft, promised to give a deed on demand, I consider settled beyond all controversy, by the receipts signed by deft, and bearing date March 10th 1832, and April 17th 1832; and their operation and extent fully and unequivocally ascer- tained when taken in connection with the proceedings relative to the acceptance of said real property by deft., in the orphans' court of Sussex county, and the testimony of Boyce and Elligood; the deft, having by the acceptance acquired a title to two thirds of the real estate of his father, Thomas Townsend, deceased, described as the mill property in Middleford; and by the receipts dated March 10th and April 17th 1832, deft, acknowledges to have received the sums mentioned, in the first receipt in part pay of the half of the mill property in Middleford, which he promised to deed when called on; by the second receipt he says in part pay of the one half of the Middleford property which I have sold him. Thus much appearing to the court by these receipts which are proved in the cause and not even denied, except evasively, as to their import, in the answer, '69 546 TOWNSEND vs. HOUSTON. I shall proceed to the inquiry whether the testimony satisfactorily establishes what was the consideration agreed upon. The complainant in his bill sets forth the consideration and alledges the same to be $3750, and then proceeds to state the manner in which it was agreed he was to pay the same to deft. The deft, in his answer denies that any sum of evej had' b'een in fact agreed upon. The answer thus positively denying the fact, unless the same is es- tablished, either by the testimony of two witnesses or of one cor- roborated by circumstances, the denial in the answer must be con- clusive. As this is one of the essential terms of an agreement, and necessary to be ascertained, I will advert to the testimony. The first witness on the part of the complainant (the deft, not having taken any testimony) is that of Capt. Boyce, who in his disposition states, " that the deft, in the month of April or May, 1832, informed him he had sold half of the Middleford mills and property to complainant and purchased the schooner Tanner and scow from him for $625; price of real property not stated ; that he could have got more for said property than he had agreed to let Robert Houston (complainant) have it for" Now it does appear that although no price was sta- ted, by the witness, yet his testimony proves two facts, viz. that the deft, had sold half of said property to the complainant and for a consideration agreed upon between the plff. and deft., because the defendant in stating to the witness that he had sold, had he said nothing more, would have afforded strong ground of presumption, but when he goes on to state, that he could have got more, for said property, than he had agreed to let Robert Houston have it for, he thereby, unequivocally refers to a fixed price, settled and agreed upon, between the parties; otherwise how could he with any pro- priety say, he could have got more for said property ? The admission of the deft, as proved by this witness, is therefore at variance with that part of his answer which denies that any price or sum or terms were agreed upon or fixed between compl't. and deft, for the purchase of the said real estate by the complainant; hence, unless the testimony of capt. Boyce is either sustained by another witness or corroborating circumstances, it cannot prevail, against the positive denial of the deft, which is made under oath. But it does further appear from the deposition of J. A. Elligood, that some time in the spring of 1833, at the time when complainant ten- dered the alledged balance of the purchase-money, that the deft, in presence of Elligood, in replying to what complainant stated, to be the contract or agreement, admitted, " that he had heretofore agreed to convey said property to him, for the amount mentioned, but that it would be unjust that he should convey for that sum, being one half of the valuation-money. From the testimony of these two witnesses, both unimpeached and not controverted, except by the denial in the answer, it does appear, that the parties had agreed upon the price or sum constituting the consideration, and from Elligood's the sum is ascertained to be half of the valuation and thus rendered certain, because id certum est quod certum reddi protest; and by re- ferring to the record of the orphans* court whicn is in evidence in this cause, the one half of the valuation, appears to be the sum of $3750, as alledged in complainant's bill. In considering the testi- TOWNSEND vs. HOUSTON. 547 mony in relation to this fact, of the sum or price not having been fixed or agreed upon by the parties the deposition of Noonan in con- nection with the answer at first view appeared to present some un- certainty whether the sum fixed or agreed upon was the half of the valuation, or half what the property cost deft., and whether under the term half what the property cost, could be included the half of other expenses relative to the procuring the act of assembly, &c. they being properly a charge against the fund generally. But the deposition of this witness has relation to declarations of Townsend as to what he intended to do and not like the others of what he had done. The subsequent information of Townsend's, that there was a misunderstanding between him and Houston, does not disclose the cause, only that it was about the purchase of the Middleford prop- erty. From the declarations of Houston to l^oonan, it does ap- pear that it related to the extra expenses which it appears were never adjusted although he seems to have been willing to pay his fair proportion. From the declarations and the occasion when they were made, both before Noonan and Elligood, I was induced to believe this difficulty about extra expenses originated after the deft, had re- fused to perform the agreement. I was led to this opinion by the import of deft.'s letter addressed to complainant, dated April 26th, 1832. In this letter the deft, attributes the interruption of the busi- ness to some unpleasant circumstance, which he was to communi- cate to the complainant when he should see him, and evidently at- tributes the non-compliance on his part to the interposition of some people, " who he says made themselves very busy and who knew well when to stop it, &c." If the real difficulty had been a misun- derstanding about the extra expense, would it not have been dis- closed in this letter of the 26th of April; why intimate that he was compelled to relate a circumstance that was very disagreeable to him ; surely if the other had been the difficulty, it would have been stated with propriety, without occasioning any unpleasant feeling such as the letter implies, nor could such a matter be in any way referred to the interposition of other people. The letter of the 26th April, written a few days after Houston and paid the deft. $600, evidently discloses that the writer was by no means satisfied with the course he was then adopting. He had, by the money and credit of the com- plainant, after discharging the debts against his deceased father's estate, been enabled to accept the two-thirds thereof at the valuation reduced more than one half by the amount of incumbrances and debts paid off, and in the course of the proceeding as appears from the records of the orphans' court had the benefit of the complainant's credit as one of his sureties in the recognizance a liability yet sub- sisting. From these circumstances appearing in the cause, it is evi- dent the deft, availed himself of the full benefit of the agreement so far as the same had been performed by Houston and did not make known his determination not to comply with the same on his part until he had obtained all the advantage he expected to derive from it. Upon the ground therefor that under the circumstances of this case it would be a fraud upon the complainant, if a specific perfrrm- ance was refused, I was of opinion the complainant was entitled to relief, but before the same could be granted it was necessary to di- 548 ROACH vs. MARTIN'S LESSEE. rect an account of the rents and profits of the one half of the two- thirds of the real estate for which the deft, by the receipt dated March 10th, 1832,- promised to give to complainant a deed on de- mand and as equity considers as done that which is agreed to be done, I regarded the right of the complainant to the one half of the two-thirds of the said real estate as a perfect and subsisting title in equity from the date of the aforesaid receipt ; and that it carried with it the right to the rents and profits and entitled the deft, from that time to the balance of the purchase money with interest, subject to deductions for such payments as might be clearly proved to have been made; and which, when the rents and profits shall be accounted for under an interlocutory order, will be adjusted, and the balance due on account of the purchase money being thus ascertained, then the court will be able to make a final decree in the cause." The court affirmed the interlocutory decree of the chancellor, with costs, adopting the general views presented by him in explanation of his decree. Decree affirmed. J. A. Bayard and J. M. Clayton, for appellant. Frame, for appellee. JAMES ROACH, deft, below vs. The lessee of JAMES MARTIN, plff. below. A devise " to A and her heirs forever except she should die without an heir born of her oion body," then over to B is an estate tail in A with a vested remainder in B, and not a contingent fee with an executory devise. An order of the orphans' court directing a sale of lands for the payment of debts is conclusive as to every matter necessary to the making such order; and such matter cannot be enquired into collaterally in any other proceeding. Under the old act of assembly the record of a deed was, by the settled practice of the courts, permitted to be read in evidence, though such deed had not been recorded within a year from its execution. WHIT of error to the superior court Sussex. Coram Johns, Jr. chancellor, Black and Robinson. This cause was argued by James A. Bayard and Clayton for ap- pellant and Frame for the respondent, on the three points presented and decided by the court below. See, ante 477, &c. The counsel for the appellant contended that the judgment of the court below was erroneous : First. In permitting to be read in evidence the proceedings had in the orphans' court for the sale of the land of Hannah Heavilo, on the petition of Benjamin Johnson, executor of John Heavilo who was the executor of the said Hannah Heavilo. Second. In admitting as evidence the record of the deed from Benjamin Johnson, executor of John Heavila who was executor of Hannah Heavilo to Mary Fergus; the said deed not having been re- corded within one year from its execution. Third. In construing the devise to Eliza Fergus, in the will of the said Mary Fergus, to be an estate tail with remainder in fee to James Martin; and not an estate in fee with an executory devise over. ROACH vs. MARTIN'S LESSEE. 549 Mr. Justice Black delivered the following opinion of the court: Black Justice " It is a rule of law now well established that a devise to a person and his heirs, with a remainder limited over, if the devisee dies without issue or heirs of the body, is a fee reduced or narrowed to an estate tail, and that the devise over is, (when such words are used) to take effect after an indefinite failure of issue and is void by way of executory devise, as being too remote. Although the im- mediate devise imports a fee (the word heirs being introduced) it is restricted or controlled by the words subsequently used in the will manifesting the design of the testator to limit the operation of the word " heirs " to those of the body, and to give to the devisee an estate tail instead of a fee. This rule is not denied in the argument on the present occasion, and will be found to be sustained by the sub- joined authorities. 6 Cruise 202; 5 Term 335; 7 Term 276; 9 East 382; 12 East 254; 4 Maule & Sel. 62; 1 Com. Law 379; 5 Com. Law 373; 4 Kent's Com. 200, 274-6. Did Eliza Fergus take, in the lands devised by the fourth clause of the will, an estate in fee, with a limitation over, which would be good by way of executory devise, to James Martin according to the settled principles of law; or did she take an estate tail, with a re- mainder over to James Martin contingent on the event of her issue or heirs failing. It is admitted on the part of the counsel of the plff. in error that if the words " except she should die without an heir born of her own body/' import an indefinite failure of heirs of the body of Eliza Fergus, and not a failure of heirs at the period of her decease, that then Eliza took an estate tail. But if, as they insist, the limitation over to James Martin was to take effect only on the event of Eliza Fergus dying without having had an heir born of her own body, or without having an heir born of her body, living at her death, that then the contingency on which Martin was to take was determined at the death of Eliza, and that the limitation to him would in that case be sustained as a valid executory devise, and Eliza held to have an estate in fee in those lands. The term " heir " has assigned to it by judicial determinations its appropriate, peculiar and technical import and meaning, and that im- port and meaning it is to receive unless there is something in the will clearly excepting it frorri this general rule, and showing that when used it was designed that this technical import should not be applied to it. In its legal import or signification it is not a word of purchase, nor a designatio persona?, but is nomen collectivum, and used as a word of limitation, and will carry the land devised not only to the immediate heir or issue, but to all those who descend from that de- visee. It is immaterial whether the term " heir " or " heirs " be used, as the law has assigned to each of these the same import, and they each embrace the same class all the lineal descendants of the original stock or root. Croke Jac. 145; Croke Eliz. 313; 2 Vernon 449; 5 Term 335; Har. & But. notes p. 9, note 45. In Burleys case re- ported in 1 Ventris 230; 4 Bac. A~b. 260; there was a devise to A. for life, with remainder to the next heir male, and for default of such .heir male, the remainder over, which was adjudged to be an estate 550 KOACH vs. MARTIN'S LESSEE. tail, on the ground that the word "heir" was nomen collectivura and carried the estate not only to the immediate heir or issue of A. but to all to those who descended from him. In Whiting vs. Wilkins, 1 Bulstrode 219 which was a devise to one forever, and after his decease to his heir male forever, it was held that " heir male " and " heirs male " are all one and the same, because " heir " was nomen collectivum, and that the devisee took an estate in tail male. In the case of Hales Les. vs. Vandegrift, reported in 3 Binn. 374; a devise to A. and his lawful begotten "heir" for- ever, was adjudged to be an estate tail, the term "heir" being nomen collectivum. In the case of Osborne vs. Shrieve et al, 3 Mason 391; (Cox's digest 254:) a devise to A. and his heir male and to his heirs and assigns forever, but if A. should depart this life leaving no male heir lawfully begotten of his body, then to B. in fee, was held an estate in tail male in A. with a remainder over to B. As nomen collectivum the term " heir " therefore in its technical im- port, is a word of limitation and not a word of purchase, or discriptio persons. In this latter sense it is sometimes used when the mani- fest intention of the testator requires that it should be so used, but only when words of limitation are superadded to the term "heir/' showing that the testator intended the " heir " to be the root of a new inheritance or the stock of a new descent. The term " heir " thus used describes the person from whom the inheritors of the land are- to issue, and such " heir " takes not by descent from his parent, .but by purchase and by direct devise under the will. He is the root or stock of the inheritance and descent and the parent is not the root or stock from which the descendants or heirs are to issue. To effect this change of the technical import of the term " heir " there must as we have said be superadded to it words showing the intent of the testator that this " heir " was to be the root of inheritance, as in Ar- cher's case 1 Coke 66, cited by the counsel for the plff. in error, where the limitation was to A. for life and to the next heir male and to the heirs male of the body of such next heir male. By super- adding the words "to the heirs male of the body of such next heir male " the testator showed that he designed the " heir " before men- tioned to be the root from which the heirs were to issue to whom the land should go. So also in the case of Clark vs. Day, in Croke Eliz. 313, which was a devise to a daughter for life, and if she have heirs lawfully begotten, then the daughter's heir should have the land after the daughter's death, "and the heir of such heir." These latter words point to the daughter's " heir " as the root or stock ; makes that term a designatio personae and that heir to take by pur- chase under the will and not by descent from its mother. So also in the case of Luddington vs. Kime, 1 Lord Raymond 203, 1 Salk. 224, where lands were devised to Evers Armyn for life, and in case he should have any issue male, then to such issue male and his heirs forever. Issue in this case, in order that the intention of the testator might take effect, had not its technical import (a collec- tive one signifying all the descendants,) but it was held as denoting a particular person from whom the heirs or issue were to spring and was taken as a word of purchase. Cases of a like complexion may be found in 1 Ventris 230; 1 Strange 12; Croke, Eliz. 453; ROACH vs. MARTIN'S LESSEE. 551 4 Kent's Com. 220; I Fearne on Rem. 227, 234, 242, 279, 283; Powel on Dev. 360. In all these cases the first devisee took an estate for life and not one of inheritance, and we are not aware of any case in the books, where the first devisee was in fee, that the technical import of the term heir or issue, has been held as a word of purchase, even where words like those referred to have been superadded. We cannot, therefore, under an inspection of this will hold the term heir to be a description of the person who was to take, or a word of purchase, as urged by one of the counsel for the plff. in error. There are no words superadded pointing to this " heir " as the root of inheritable blood or giving her the character of a taker by purchase ; on the con- trary to the parent of this heir was given an estate of inheritance " ex- cept she died without an heir born of her own body/' If she died leaving " an heir born of her own body/' her estate of inheritance was not defeated but remained in her, and at her decease passed by descent to such heir and not by purchase. The stress of the argument for the plff. in error, however, was on the words "except she should die without an heir born of her own body," which are used in the devise to the daughter Eliza Fergus in the fourth clause. They contend that by the peculiar language used born of her own body -the testatrix intended to use the term heir not in its technical sense as a collective term embracing all descen- dants, but in a personal or individual or restricted sense, and that the term " heir " was to be confined to and embrace only the individual designated and not the descendants of that heir in other words that heir was to be construed as if the term " child " had been used. The words heir of the body; heir lawfully begotten of his body, j(3 Mason 391; 1 Fearne 242;) heirs of them on their bodies lawfully (8 Term 211) have all been held to mean one and the same thing; to begotten ; (4 Term 605 ;) if both die without issue of their own bodies ; describe the class, and not the person; to embrace all heirs or all is- sue, and all descendants. Do the words " an heir born of her own body," more particularly designate a child or an immediate descen- dant of the body, than do the words we have referred to, " heir law- fully begotten of the body ; or " heirs on their bodies lawfully begot- ten " or " issue of their own bodies ; " and yet these words have been held as embracing all the lineal descendants all heirs or issue proceeding from the body how remote soever the descent may be. The heir or issue of the body of an individual, can only be the heir or issue of that individual's own body the heir or issue born of that individual's own body, that is, issning from that body. The term heir begotten on the body, (4 Term, 605) is not confined to the im- mediate or first descendant of the body, but embraces all proceeding from that descendant ; and we can see no reason why the term ' the heir born of her own body," can on any principle be more restricted or confined. The language in each case is equally plain and strong and the same legal interpretation of these words must prevail. In the case of Doe on the demise of Gregory vs. Whichelo, in 8 Term, 211, where the limitation over was in the event of the son and daughter dying without issue of their own bodies, the term own, (which is also used in this will) was not considered as having any 552 EOACH vs. MABTIN'S LESSEE. peculiar influence, or as having any other import than the words their lodies would have had, or as changing the settled legal and techni- cal import of the expression " dying without issue/' The term " heir " is not less technical or comprehensive than the word issue, but the contrary, and yield its legal import with greater difficulty than the word issue. 4 Term, 299. When the words first, next, or eldest have been prefixed to the term " heir " in a will, they have not been held as sufficient to show an intent in the testator to control its technical import, as will appear from the cases collected by Mr. Powell in his treatise on devises, page 361, 2. We can see nothing in this will which can induce us to think it was the design of this testatrix in using the word heir, to use it in any other than its settled technical sense; that is as embracing all the descendants from the body of her daughter Eliza Fergus, and not to confine it to the child of Eliza to the exclusion of a grandchild, and to allow the estate to go over to Martin, while Eliza left a grandchild living, although she might not have left to survive her a child or an imme- diate " heir born of her own body/' In our judgment then the words used in this will "except she should die without an heir born of her own body," are to receive the same construction as is or would be given to the words " except she should die without heirs or issue of her body." Such words have by judicial decisions which this court must respect, received a certain fixed legal import, which should not be disturbed they im- port an indefinite failure of issue a failure of descendants of the first taker without reference to any particular time or event, and that a devise over after such an indefinite failure of issue, cannot take effect by way of executory devise, but is void, is a rule too well established and too familiar to the profession to render it necessary to refer to adjudged cases to sustain it. If we should hold that Eliza Fergus took a fee in the lands devised in the fourth clause, we should render null and forever inoperative the limitation over to James Martin, as it could not take effect as an executory devise, being too remote. In this point therefore^ we should defeat the intention of the testatrix, who intended that Mar- tin should have this portion of her real estate whenever there was a failure of issue from the daughter. Further: under such a construc- tion James Martin would take nothing by this limitation, if Eliza died leaving a child, and that child had died without issue in an hour after its mother ; and yet this is the very state of things, in which it was manifestly the design of the testatrix that this land should pass to Martin; that is, when all the issue of the daughter was extinct. It was urged by one of the counsel for the plff. in error, that this clause gave to Eliza a fee with an executory devise over to Martin which was to be determined during the life of Eliza Fergus, or at the moment of her death, and was therefore good ; that if she had a child born of her body, the limitation over was defeated even if such child or its issue did not survive her. This surely was not the in- tention of the maker of this will: she intended that Martin should have this land if Eliza died leaving no issue, and not that it should escheat to the State, which, from Eliza's illegitimacy, would have been the result had she died intestate, as she could have no other than ROACH vs. MARTIN'S LESSEE. 553 lineal heirs. So to construe this will would render it necessary most materially to change its language, and to introduce into it words which the testatrix has not placed there in fact to make a will for her. The will is not, as the argument of the counsel would render it necessary that it should be, except my daughter should die without ever having had an heir born of her own body; then over, &c. : but it is except " she should die without an heir born of her own body ; " that is, without leaving an heir born of her body ; then over to J. Martin. According to another view taken by the counsel of the plff. in error of this clause of the will, the daughter was to have a fee in this part of the estate if she died leaving an immediate descendant of her own body, that is leaving a child. That the executory devise over was to be decided by this event, which would make it a good executory devise within the rules of law, as it would either take effect or be defeated at the moment of the death of the daughter who was then in being that if Eliza died without leaving an immediate descendant of her own body, that is without leaving a child to sur- vive her, the lands on her decease passed under the limitation to James Martin as a valid executory devise. If this construction should obtain, this result would in a certain state of things arise, that Martin would take this land notwithstanding a grand-daughter of Eliza Fergus v/as in being, which unquestionably could never have been the intention of the testatrix : if Eliza had had a child and that child should have had a child and died in the lifetime of Eliza leav- ing this child to survive her, such child not being the immediate de- scendant or child of Eliza, but her grandchild, would not on her decease be held according to the argument to be an heir born of Eliza's own body, and there being no such heir living at her death the execiTtory devise to Martin would take effect, and the grand-child be excluded from all benefit or participation in this part of the estate. Xo one can for a moment suppose that such an intention existed in the mind of this testatrix when making this will. It would appear from an examination of the different parts of this will to have been the design of Mary Fergus to make some differ- ence in the nature of the estates given to her daughter, in the two parcels of land devised to her. The store house 1 , lot and granary is devised to James Martin for ten years, and then given to the daugh- ter in fee, without any limitation; while the lands devised by the fourth clause of the will are given to her and her heirs with a limi- tation over, of those lands only, to Martin in the event of her dying without an heir born of her body. This limitation does not extend to the store house, lot and granary, nor is there in the will any thing relating to it restricting it to an estate tail. Had no difference in the nature of the estates given to the daughter been intended by the tes- tatrix, it would have been natural to have extended this limitation in favor of her friend to all the lands devised the daughter. The intention of the maker of this will seems to be plain and free from all reasonable doubt or question, and it is the duty of this court to carry that intention into execution, unless it conflicts with some settled rule of law. Her design manifestly was to give to her friend James Martin the store house, lot and granary for ten years, and 70 55-4 ROACH vs. MARTIN'S LESSEE. that it should then pass to her daughter in fee simple ; and to give the remainder of her real estate to her daughter in tail to' be enjoyed by that daughter and the issue of her body, and that if at any time there was a failure of such issue, that such remainder of her real estate should then vest in James Martin in fee. It is an established rule of law that if a devise can take effect as a remainder it shall never be construed an executory devise. Effect can be given to this devise to Martin, according to the express design of the testatrix, if we construe this an estate tail in Eliza Fergus with a remainder limited over to him on the contingency of her dying without issue the limi- tation would take effect if the issue failed, and if the issue did not fail it was not intended by the testatrix that it should take effect on the other hand the devise to Martin will be forever defeated if we hold that Eliza Fergus took an estate in fee; as the limitation over, being on an indefinite failure of issue, could never take effect as an executory devise. To construe this a fee tail in Eliza Fergus gives full operation to all the intentions of the testatrix in favor of the sev- eral objects of her good will and in the other she designed; that is, first to her daughter, next to the issue of that daughter and then to her friend James Martin ; any other interpretation would or might defeat one or other of those objects and thus frustrate one of the testatrix's designs. This construction instead of conflicting with settled princi- ples is in perfect conformity with those which have been established by a series of adjudications, namely: that a devise in fee with a re- mainder over if the devisee dies without issue or without an heir, or without heirs of the body is a fee cut down to an estate tail. 5 Term 335; 7 do. 276; 9 East 382; 12 do. 254; 4 Maul. & Selw. 62; 1 Com. Law 379; 5 Com. Law 373; 4 Kent's Com. 200, 274-6. It may be proper to notice an argument urged by the counsel for the plff. in error to this effect That the testatrix by the fourth clause of her will devised to her daughter all the remainder of her estate both real and personal and limited over to Martin that real and personal property if her daughter died without an heir born of her own body. That under this clause the daughter unquestionably took the personal estate absolutely, and that in no event could Martin have any bene- fit by this limitation in relation to it, as words in a will which when used in reference to 'lands give an estate tail theren, will when used in relation to personal property give an absolute estate in that species of property: that it was the intention of the testatrix to limit over to Martin both the real and personal estate on the same contingency: that this intention is defeated if the words used are held to give an es- tate tail, but will Be sustained as of both kinds of property, if they are held to give an estate in fee with an executory devise over to James Martin. We do not feel the force of this argument, or consider that it can be of any weight in the present case. It may have been and probably was the design of the testatrix to limit over to Martin both the real and personal estate, if her daughter died without issue, and this intention should prevail unless it conflicts with some fixed rule of law. If it does so conflict, the rule must prevail and the in- tention yield to it. The intention in this case then, as it is urged, was to give an estate in fee in both kinds of property with the limita- tion over, unquestionably after an indefinite failure of issue, and this ROACH vs. MARTIN'S LESSEE. 555 the law will sustain. The rule cannot bend to the presumed inten- tion, or be given up to effect that intention. In holding the words of this will to create an estate tail, the daugh- ter takes the personal estate absolutely, not in consequence of the expressed intention of the testatrix, that she shall so take it but because the law has established a fixed legal import to certain words when used in reference to personal estate. That if property of this species be bequeathed to a person and the heirs of his body, the legatee takes such property absolutely and not in tail. But the law has equally well established the legal acceptation of these same words when applied to real estates, that they do not in the latter case give an absolute estate or one in fee, but an estate tail. As to each spe- cies of property these words have their peculiar, appropriate, tech- nical signification, and the subject matter determines the application to be made : if applied to land they give an estate tail ; if to personal property an absolute estate; and although they be used in the same clause of a will and be applied to both real and personal estate, they are to be construed according to the subject matter to which they are applied, and the very same words in the same clause will be held to vest the one species of property absolutely, and the other in tail. Cases to this effect may be found in 9 Vezey 202 ; 6 Term 307 ; 16 Johns. 413; 17 Vezey 479. On the trial below the counsel for the deft, objected to the admis- sion in evidence of the proceedings of the orphans' court of Sussex county in relation to the sale of the real estate of H. Heavilo for the paying her debts, and of the deed made pursuant to such sale by B. Johnson as executor of H. Heavilo; alledging that he was not the executor of H. Heavilo. The sale of the land by Johnson had been returned and approved by the orphans' court. The order and decree of the orphans' court had not been appealed from and the court below held that as to every point which it was necessary for the orphans' court to decide upon, to make a rightful order, their decree was conclusive; and that such points or matters could not be enquired into collaterally in the action then on trial. In this opinion we fully concur. To authorize or order an executor or administrator to sell lands to pay the debts of a deceased person, was a jurisdiction committed exclusively in this state to the orphans' court of the several counties, with the right of appeal to the superior court; when the order in question was made the appeal was to the then supreme court. If one died leaving a will, the orphans' court had exclusively the power to call upon the executor to account for the goods and chattels and on examination and due proof made be- fore it, if the personal estate should be found insufficient to pay the debts of the deceased, and if the widow, children or devisees should neglect or refuse to pay their poroprtionate shares of those debts after a just settlement of the personal estate in that court, then to order the executor to sell siich portions of the estate as that court might deem necessary for the payment of debts; which sales the act of assembly declared should be as available as if the lands had been sold by the decedants : and were to be made after notice by advertise- ments for twenty days in the hundred where the lands were situate 536 ROACH vs. MARTIN'S LESSEE. and in three of the most public places in the county, and return of such sale was to be made to the next orphans' court. All these differ- ent matters are essential requisites in a valid decree or to constitute a valid sale, and if any one these points could be enquired into in the action of ejectment in the court below, all were equally open for in- vestigation even to the advertisement of the lands for twenty days, and the refusal or neglect of the widow, heirs or devisees to pay the debts. Where sales were to be made of lands of an intestate it was further provided; that before an order was made, the administrator should exhibit to the court an inventory and appraisement and also an ac- count on oath of the debts due from the intestate. These points would on the same principle be enquirable into. To order lands to be sold for the payment of debts, was a jurisdiction exclusively committed by our laws to the orphans' court. Those laws pre- scribed the manner in which the jurisdiction was to be exercised. Before that court could legally exercise the power delegated, it was to call the executor before it to account for the goods and chattels of course it was to ascertain who was the executor, and compel him to render such account: if the personal estate was insufficient to pay the debts, and if the heirs or devisees refused or neglected to dis- charge them, then the court were authorised to order the executor to sell the land, to receive a return of such sale and enquire if it had been legally made ; and if the lands were those of an intestate, an in- ventory, appraisement and list of debts were to be submitted to the court before an order could be made. It was undoubtedly necessary that all these matters should be made out to the satisfaction of that court, before it could legally make a decree to sell the lands : as such an order was made by that court, are we not bound to presume that a court thus having jurisdiction has properly exercised its power and had before it all that the law required it should have before it, pre- vious to its making such order. If these matters are allowed to be controverted, enquired into, or proof of them called for, we should in a side way, and not by the legitimate and prescribed course of appeal, review the proceedings in that court, and impeach the decree of a court of competent jurisdiction in a collateral action. We cannot adopt such a principle. It has in it the seeds of evil, and would pro duce confusion in our system, collision in our tribunals, and insecu- rity in the titles and tenure of real estate. If a court having jurisdiction of the subject matter proceeds erro- neously, its judgment or decree is nevertheless valid till reversed by the appropriate tribunal of review in the due course of law, and every person is bound by the judicial acts of such a court while they stand unrepealed. Puller's N. P. 244; 3 Term 129; Cowper 315; 1 Strange 481. An executor who has obtained letters testamentary on a forged will represents the estate until those letters are revoked, and payment made to him will discharge the debtor. This principle was decided in the case from 3 Term to which we have referred. Would it not be most unreasonable, and be paying but little respect to the judicial acts of a court to whom the matter has been by our laws exclusively confided, to hold that a person before he can with safety purchase land at an executor's sale made under an order of our orphans' court is bound to ascertain if satisfactory proof exist that ROACH vs. MARTIN'S LESSEE. 557 such court has pursued in all particulars, the course pointed out by law for the due exercise of its authority, and that all the requisites of a valid sale have been confirmed to, and to stand ready at all times to produce such proof whenever an individual may choose to in- stitute an action to take from him the land he has purchased ? Ought he not to be permitted to rest securely on the decree and proceedings of the court to whom the jurisdiction was entrusted, as conclusive evi- dence that such court has duly pursued its authority, and not acted in a way different from that which the law had prescribed that it should act. A judgment, sentence or decree cannot be impeached on the ground that the will was forged ; or that the testator was non compos mentis ; or that another is executor, for this would be to falsify such judg- ment or decree. 1 Stark. Ev. 253; 1 Strange 481. It was a ques- tion for the orphans' court, and an essential question for it to decide, whether Benjamin Johnson, as executor of John Heavilo, who was appointed one of the executors of Hannah Heavilo, and gave bond as such, was the executor of Hannah Heavilo, and to be recognized as her legal representative; for until that court had decided that he was the executor it could, make no decree authorizing him to make sale of the land. If the court erred in judgment either on the fact or law, a remedy for correction of the error was secured by an ap- peal to the supreme court whose decision, by our then constitution, was final. If the error, if any existed, is to be got at and corrected in this way in an action of ejectment, then the court of final resort is not that pointed out by the constitution for such correction. It would have been, under our late judicial system!, the high court of errors and appeals, in which not a single judge to whom the consti- tution assigned the final decision of such matters, would have been on the bench on the final determination of the cause, if the action of ejectment had originated in the supreme court it would have been decided in the last resort by the chancellor and judges of the court of common pleas, who would have formed the court of appeals on writs of error to the supreme court ; and under our present constitution the tribunal of final decision would be composed of the chancellor, the associate judge residing in the county, and one other of the judges; and yet neither of the former can sit on an appeal from the decree of the orphans' court. The court of errors and appeals would thus in effect, though indirectly, take to themselves the power of review- ing and annulling the decrees of the orphans' court, a power denied to it by our constitution, and expressly placed elsewhere. The case of Rockwell vs. Sheldon, (2 Day's Rep. 305,) is an au- thority on the question before us and sustains the principles we have adopted. It was an action of ejectment brought by the heirs at law, in which it was attempted to impeach a sale made by an executor by order of a court of probate for the payment of debts, on the ground that all these previous matters which were necessary by the statute of Connecticut to have been done before the court of probate could make the order of sale, had not been done ; that no inventory of the lands in controversy had been made, accepted and recorded as their statute required, and that therefore the sale was void. The supreme court of errors held, that they were bound to presume all these mat- 558 ROACH vs. MARTIN'S LESSEE. ters to have existed before the court of probate exercised its dele- gated jurisdiction; that it would presume the court of probate had before it the inventory required; that it would presume such inven- tory was accepted and ordered to be recorded, and that they would not permit an averment that there was no such inventory, or that it had not been accepted or recorded, because as these were requisites such averments would impeach a decree of a court of competent ju- risdiction, and that such decree could not be impeached in a collate- ral action. A like attempt was made to question the regularity of the proceedings of a court of probate, in relation to a sale ordered for the payment of debts, in an ejectment brought by Griswold, one of the heirs of the deceased, against Bigelow, who held under the purchase made at such sale, and which is reported in 6 Day 264. C. J. llosmer in delivering the opinion of the court said, " The decrees of a court of competent jurisdiction are conclusive while they remain unreversed, on every question which they profess to decide. They can never be questioned collaterally but ex directo only/' It was the proper course of the devisees and others to have appealed from the appointment of the administrator and the order of sale, and indeed from any other exceptional decree of probate, and in my opinion this was the only mode of reviewing any of those determinations from this it results as far as this court is authorized to decide, that an administrator was duly appointed, the claim was legally allowed and a lawful order of sale was made. That our views on this subject do not accord with the decisions in Pennsylvania we are aware. Their rule was adopted by C. J. M'Kean in 1798, probably in consequence of their not having a distinct equity tribunal, and succeeding judges have not felt them- selves at liberty to depart from it, although it is manifest they were not satisfied with it. C. J. Tilghman, in 4 Binn. 104, says, "If the question was open whether a decree of the orphans' court though erroneous ought to stand till reversed by a regular course of appeal and not to be questioned in a collateral way I should think it well worthy of consideration; but after the frequent decisions by which the decrees of orphans' courts have been called in question in actions of ejectment, I am bound to consider the law settled." He again says, in 6 Binn. 491, " It might be more convenient and render the law more uniform if these proceedings (the orphans' court) were re- versible only on appeal, but after the long practice it is too late to attempt an alteration. He yields to the rule because it has been established by repeated - decisions and not because his judgment ap- proves it. We are, however, not thus fettered. In Larimer's lessee vs. Irwin, C. J. M'Kean decided that it was the duty of a purchaser at a sale by an administrator or executor, " to see that the proceedings were so far regular as to authorize the sale." We can- not adopt a principle like this which will take from the decrees of an independent tribunal all binding force or effect. Such sales we think should be sustained to the extent that sales by sheriff's are, and that in neither case should purchasers be required to see that the pro- ceedings prior either to the judgment of a court of law, or to a de- cree in the orphans' court were so far regular as to authorize a sale. Judge Yates in 6 Binn. 499, says, I consider the general remark EOACH vs. MARTIN'S LESSEE. 559 to be correct, that the decree of the orphans' court in a case within its jurisdiction is reversible only by appeal, and not collaterally in another suit. The same judge says in 4 Binn. 107, in relation to sales of land made by executors by order of the orphans' court and also in relation to assignments by that court of the land of an intes- tate to one or other of the childreyi, it has not been necessary in Pennsylvania to appeal in the first instance to reverse the decree, but to institute actions of ejectments, and in this way review the proceedings of the orphans' court. In this state such a course would virtually be a violation of our constitution, and cannot receive our sanction. The case of Griffith vs. Frazer, from 8 C ranch, does not in our judgment conflict with the principle on which we proceed. A ma- jority of the court ruled in that case, that an execution on the judg- ment which had been rendered against Lamotte the administrator cum tes. ann. could not legally be levied on the property of Sal- vador, and therefore that a title through it could not be conveyed to the purchaser, because the judgment was a nullity. It was admitted by C. J. Marshall that this decision was at variance with the case in 1 "\Vilson, 302. That the regularity of an execution under which a sale has been effected by a sheriff, can be inquired into collaterally in an action of ejectment, is a position we are not prepared to admit; certainly it cannot if the execution be voidable only and not void. 1 Salic. 273; 1 Wils. 302; 8 Johns. 361; 3 Caines. 271. The court of appeals of South Carolina in the case of Ford vs. Travis (cited 8 Cranch, 14,) had decided that after probate made of a will, a grant by the ordinary of administration was void, although the executor might be absent from the state. It was established by the highest tribunal as the law of that state, that the ordinary hav- ing taken probate of a will or issued letters testamentary had no longer jurisdiction over the subject, but that it was exhausted, and that he had no jurisdiction while the executor was living to issue other letters, as he had no power to revoke or annul the letters is- sued. This principle was adopted by the Supreme Court of the United States in the case in 8 Cranch, and they declare that the ad- ministration granted to Lamotte was granted by a court having no jurisdiction in the particular case and was therefore absolutely void. (Page 27, 28.) Had the orphans' court of Sussex county, after having ordered and effected a sale of the land of H. Heavilo through an executor, and confirming the same, subsequently assumed a juris- diction and a second time ordered and effected a sale of the same lands to pay the debts, the principle fixed in 8 Cranch might well be applied ; for by the first sale and its confirmation their jurisdiction over the subject matter was at an end, and an attempt again to exer- cise the same power would be a nullity; an assumption of jurisdic- tion which they did not possess. Such however is not the case be- fore us: by reason of the insufficiency of the personal estate of H. Heavilo to pay debts, a sale of her land was rendered necessary: the only jurisdiction to effect this was the orphans' court; to it was committed the power to call the executor of H. Heavilo before it, to ascertain the necessity of a sale and to order the representative or executor to make a sale: having jurisdiction of the subject matter, 560 EOACH vs. MARTIN'S LESSEE. which is the sale of the land, the order or decree of the court or the proceedings consequent thereon, though they may be erroneous are not void; they may be voidable, but till reversed in the due course of review, they stand with binding force and cannot be impeached collaterally. Whether letters testamentary had been issued to John Heavilo alone, or to John and Roderick jointly; whether Roderick survived John or died before him ; whether if he survived he was the executor of H. Heavilo or had renounced, were matters necessary for the orphans' court to pass upon to enable it to decide whether B. Johnson as executor of J. Heavilo, was the legal representative of H. Heavilo; and we are bound to presume that the orphans' court thus having jurisdiction of the subject matter of sale, had satisfactory proof before it to justify it in the conclusion to whiqh it did come, that he was the legal representative. If that court erred the error can be corrected by appeal only, and not collaterally in the manner it was attempted. C. J. Marshall says at page 23 of the case in 8 Crancli, " tho' let- ters of administration be granted to one not entitled by law still the act is binding until annulled by the competent authority, because the ordinary had power to grant letters of administration in the case." Apply this principle and the reason of the principle to the case before us. If the orphans' court order a sale of land of a per- son deceased to be made by one who it subsequently appears had not complied with all those requisites which were necessary to con- stitute him legally the executor of the deceased, still the act of the court according to the principle stated in the case of Griffith vs. Frazer would be binding, until annulled by the proper tribunal of review ; because that court had jurisdiction of the subject matter, that is of the sale of lands to pay debts, and had the power to order the sale, and their act though voidable was not void. The court below proceeded on this principle, that as the orphans' court had jurisdic- tion and authority to order the sale of H. Heavilo's real estate to discharge her debts, they would hold its decree as binding and not allow it to be impeached collaterally on the trial then before it. We cannot suppose that the late court of common pleas would have per- mitted a sale of lands made by a sheriff under process from the su- preme court, to have been impeacehd collaterally in a trial before it by an averment that the inquisitors who condemned the land were not freeholders, or that the sheriff had not given security; and yet this question of security is one of which the common pleas had ex- clusive jurisdiction and not the supreme court from which the sale was authorized: the sales might have been voidable but they were not void, and therefore could not be assailed in this way. The judgment of the court in admitting in evidence the records of the deeds which had not been recorded within a year was we think correct, when we consider the practice that has prevailed for very many years throughout each county of the state of recording deeds duly proved or acknowledged after the year, and the decisions made in at least one of our courts in allowing office copies of such to be re- ceived in evidence ; we fear we should be unsettling the titles to much of the real property of the state, were we to adopt a different rule from that of the court below inasmuch as the supreme court for at least FARMERS' BANK vs. GILPIN, BRADUN ET AL. 5(il thirty years had recognized by their decisions as competent evi- dence deeds so recorded. We go on the decisions thus made estab- lishing a rule of property which is not wise now to shake, and the practice that it gave rise to or recognized, and not on the words of the act of assembly, which might well bear a different construc- tion: besides the admission of deeds thus recorded, or copies thereof in evidence, though not within the words of the act extending the time for recording deeds; (8 Del. Laws 19) and the supplements thereto is, we apprehend, within the spirit and design of those acts: under those acts all deeds proved or acknowledged in the manner prescribed by the laws of the state could be recorded and copies thereof be evidence, no matter when executed. Had these deeds been placed on record subsequently to the passing of those acts, there would have been no question on this point: as they were recorded previously thereto, having been duly proved, we think the spirit and object of the act are promoted by recognizing them as valid rec- ords. We are therefore unanimously of opinion that in the judgment of the court below there is no error, and that it must be affirmed. Judgment affirmed. Bayard and Clayton, for plaintiff in error. Frame, for defendant in error. THE PRESIDENT, DIRECTORS AND COMPANY of the FARMERS' BANK of the STATE OF DELAWARE, complain- ants below, appellants, vs. VINCENT GILPIN, JOHN- F. GIL- PIN, THOMAS BRADUN, WASHINGTON RICE, and others, defendants below, respondents. The indorser of a note under protest is not entitled, even in equity, to be considered a creditor of the drawer, and to come in for a share of his ef- fects under a general assignment for the benefit of creditors. A bill may be dismissed generally, and with costs, after a decree overruling a demurrer to it. A bill may be dismissed generally as to all the defendants, and with costs, after a pro confesso decree as to some of the defendants. APPEAL from Chancery. Newcastle county. Coram Clayton, Chief Justice. Robinson and Harrington. The case was this: The Farmers' Bank, in the year 1820 dis- counted two promissory notes, one for $2000 and the other for $1030: drawn and signed by Joseph Robinson in favor of Thomas Bra- dun and by him endorsed to complainants. These notes were re- newed from time to time until February 1821, when Bradun, being about to leave the State, addressed a letter to the cashier of the bank agreeing to stand as endorser on all subsequent renewals of said notes as fully as if he were present and actually endorsed them. In this manner they were renewed until the 15th of August 1821, when they were both included in one note for $3000 : and this was con- tinued by subsequent renewals until the 28th of August 1822, on which day a note was drawn by the said Joseph Robinson for $3000, in favor of the said Thomas Bradun at 60 days, and discounted -by 71 -562 FARMERS' BANK vs. GILPIN, BRADUN ET AL. the bank on his indorsement made under his agreement of February 1821. This note fell due on the 30th of October, was protested for non-payment, and the indorser regularly notified. Joseph Kobinson on the 30th of August 1822, made an assignment to the defendants, Vincent and John F. Gilpin, of all his real and personal estate, in trust to pay a certain preferred debt and to divide the balance among all his other creditors who should within sixty days execute ;a release. Thomas Bradun, being thus responsible for Robinson on Jiis said endorsement did, by his attorney in fact Washington Rice, execute the release within the sixty days, by which the complainants insist, he became entitled to a dividend or share of the surplus of Robinson's estate in the hands of his trustees upon the amount of his said liability to the bank. The other defendants were the general creditors of Robinson, and who had signed his release. The bank sued Bradun on his endorsement and recovered judgment on the 4th November, 1825, for $3543 57. On this judgment the land of Bradun was sold but yielded nothing applicable to it; and the de- fendants, Vincent and John F. Gilpin were summoned as garnishees of Bradun, who appeared, and pleaded nulla bona; but the plaintiffs in the attachment afterwards suffered a nonsuit; and filed their bill insisting that Bradun was entitled by his said indorsement and re- lease to come in as a creditor for a dividend of Robinson's estate in the hands of his assignees; and that complainants were entitled in equity to stand in his place. The bank also obtained judgment on the note against Robinson the drawer; and issued execution under which they levied from his subsequently acquired property, the sum of $1530. The bill prayed a discovery and account of the trust estate and payment out of it pari passn with the other creditors of Robin- son who had released. The defendants demurred to the bill generally, and in November, 1831, the chancellor, (Johns, Sen.) made a decree overruling the demurrer and directing an answer. Vincent and John F. Gilpin, two of the defendants, answered, denying that Bradun was ever a creditor of Robinson otherwise than as endorser or guarantor aforesaid, or that the release by Rice as his attorney, gave him any right to a dividend of Robinson's estate. The answer also stated, that Bradun had never paid the said note or any part thereof. Washington Rice filed a separate answer ; and the other Defendants, the creditors of Robinson, not having answered, the bill was taken pro confesso as to them. The case came on for hearing in the summer term, 1833, and the chancellor (Johns. Jr.) made a gen- oral decree dismissing the complainants' bill with costs. From this decree the present appeal was taken. On the part of the appellants it was contended : First. That Thomas Bradun would in a <-ourt of equity be regarded as a creditor of Joseph Robinson and en- titled under his release to a share with the other creditors under the assignment. It was admitted that an indorser was not a creditor within the meaning of the English bankrupt laws, or under our at- tachment laws; but the bankrupt decisions are upon positive law and do not proceed on equitable principles. A court of equity on its own principles will regard all as creditors who have any right or claim either legal or equitable, fixed or contingent, on the debtor's estate. FARMERS' BANK vs. GILPIN, BRADUN ET AL. 563 If Bradun is entitled as a creditor of Robinson to a share of his estate, the bank is entitled in equity to all the rights and remedies of Bradun and to *stand in his place. Second : That the interlocutory decree overruling the demurrer settled this question, and it was not compe- tent for chancellor Johns, Jr. after demurrer overruled to dismiss the bill and thus virtually reverse the decision of his predecessor with- out a rehearing. The demurrer brought up the question of equity in complainants' bill, which necessarily involved the question whether Bradun was a creditor of Robinson and the decree overruling the de- murrer, decided this question. 5 Simmons' Reports 156, Nichols vs. Rowe. A judge is bound to notice a prior order in the same cause, and having decided that a party has an equity he cannot afterwards change that decision without rehearing the case. Third: That Vincent and J. F. Gilpin being but naked trustees, and the bill having been taken pro confesso as to the cestuis que trust or creditors generally, it was not competent for them to controvert the claim. That a bill could not be dismissed generally after a pro confesso decree as to any of the defendants; and that as to costs, they could not be given on the dis- missal of a bill after a demurrer overruled as to all the defendants and a pro confesso decree against all the parties in interest. On behalf of the respondents it was insisted: that the principles which test the character of a creditor are the same in equity as at law. At the time of the assignment and release Bradun was merely the in- dorser of Robinson on a note then under protest, but had suffered no loss, nor incurred any liability except a contingent one. Xor has he yet placed himself in the condition of a creditor. He has paid nothing for Robinson and Robinson owes him nothing. 2 Wash. Cir. Ct. Rep. 488; Taylor vs. Gardner, garnishee of Lee, Serg. Ait. 103, same case. 6 Johns. Ch. Rep. 285; 9 Johns. Rep. 127; 3 Wits. 263, (271;) God- dard vs. Vander Huyden. Second: That complainants had adequate remedy at law under the attachment process. Third : A complainant in equity must show that he has done equity, or is willing to do it. Is the bank doing equity to the other creditors of Robinson. Refus- ing to come in under the assignment and release, they proceed at law against Robinson and have already realized $1530 00; whilst they thrust Bradun forward as a releasing creditor and insist upon coming in under him for a division on their whole debt? 14 Vezey 493; 8 Yezey 84; 16 Vezey 372; McKensie vs. McKensie. Fourth: The de- cision on the demurrer did not preclude the chancellor from decree- ing a general dismissal of the bill. A demurrer in chancery is very different from a demurrer at law. It does not admit the fa -:s. It only raises the question whether the facts as stated entitle complain- ant to an answer. The overruling a demurrer then decides nothing but that the defendant shall answer. He may afterwards in his answer insist upon the same matter which he set up by demurrer. Fifth: A pro confesso decree does not conclude any of the rights of the parties on the merits; but merely confesses the facts in the bill leaving every thing arising upon those facts, as well as to liability as to costs, subject to the final decree of the chancellor. Costs in equity do not in any case depend on the result of the case but rest in the equitable discretion of the chancellor. 564 FARMERS' BANK vs. GILPIN, BRADUN ET AL. Chief Justice Clayton delivered the opinion of the Court. Clayton, Chief Justice: On the 28th of August, 1822, Joseph Robinson made his promis- sory note, payable at sixty days, to Thomas Bradun, for the sum of $3009, which was by him endorsed and delivered to the Farmers' Bank of the State of Delaware, and not being duly paid, it was pro- tested. Joseph Eobinson made and executed his deed bearing date the 30th of August, 1822, and did thereby convey, assign and trans- fer to Vincent Gilpin and John F. Gilpin, their heirs and assigns, all his real and personal estate in trust to sell and apply the proceeds in the first place to the satisfaction of a certain preferred debt, and after the discharge of the same, to apply all the residue of the pro- ceeds of the said real and personal estate, among all the other credi- tors of the said Joseph Eobinson, who should within sixty days there- after, execute a release to the said Joseph Kobinson of their re- spective claims and demands in equal proportion, according to the amount of their debts. Thomas Bradun, by his attorney, W. Rice, did execute a release within sixty days. This bill is filed by the Farmers' Bank, to enable it to stand in the place of Thomas Bradun, and to have such benefit under the assignment as he was entitled to. Judgments were recovered against the drawer and endorser of the note, and upon execution process argainst Eobinson, the sum of 1530 dollars was levied upon his property at the suit of the Bank. The first question that arises in this case is, was Bradun at the time of the release executed a creditor of Robinson? It is admitted that there was no legal indebtedness; but that equity would treat him as a creditor. We are to consider the operation of his release at law; for if he released nothing, he was not entitled to any benefit under the assignment. As a mere endorser, not having discharged the note at the time, he had no debt, demand, or interest upon which the re- lease could operate; and if he had released nothing, if the creditors of Bobinson derived no advantage from the release, he could not avail himself of any benefit under the assignment. It would be unjust to the other creditors to say that he could. The Farmers' Bank was left at liberty to proceed upon this note as the holder of it; and it did proceed, and collected 1530 dollars. Its hands were not tied by this release; it was left at liberty to use every means in its power to col- lect its debts; and it used those means. What would be the conse- quence if the Bank should prevail in this case? It would retain what it has received upon its execution, and standing in the place of Bradun. supposing his release to be operative, it would get such share of the dividends as he would have taken; when by the terms of the assignment the creditors were to take equally in proportion to their debts. Robinson was only indebted at the time in 3000 dollars, and that debt was due to the Bank ; but the complainant goes upon the notion that he was legallv indebted to the Bank in this sum, and that he was equitably indebted to Bradun in a like sum ; whereas in truth he can only owe 3000 dollars. Had Bradun discharged the note the Bank would have been no longer a creditor; and Brandun then being the creditor might have released. (Hardcastle vs. Commercial Bank> ante.) RAXDEL, JR. vs. GARX'S OF C. & D. CAXAL Co. 565 To this bill there was a demurrer, and the demurrer was over- ruled, and the defts. ordered to answer. The Gilpins, the trustees, put in their answer, and the creditors not answering, the bill as to them was taken pro confesso. On the hearing the chancellor dis- missed the bill as to all parties, and decreed the complainant to pay the cost. On this ground it is insisted that the decree is erroneous; that the bill should not have been dismissed as to those against whom it was taken pro confesso, or at all events that they should have been decreed to pay costs; because it is said that by overruling the de- murrer the court decides that on the facts appearing on the bill the the plff. has an equity which, if the answer does not displace, there must be a decree accordingly. 5 Sim. 168-9. But a demurrer is nothing more than an allegation by a deft, which, admitting the matters of fact alledged in the bill to be true, shows that as they are therein set forth, they are insufficient for the plff. to proceed upon, or oblige the deft, to answer: it therefore de- mands the judgment of the court whether the deft, shall be compelled to. make answer to the plff's bill. Hit. PI. 97, ct seq. It is said by Lord Hardwicke, 2 Atk. 297-8, "If a man demurs at law it is a perpetual bar if the judgment should be against him ; and therefore it is at his own peril he does it; but if a deft, demurs in equity, and it is overruled, he may insist afterwards upon the same thing in his answer." But a plea shows some cause why the suit should be dis- missed, delayed or barred. Mit. PL 97-8. It is said in Chit. Dig. that though a bill be taken pro confesso, yet the plff. must prove his charge : 2d. vol. 889 ; Deck. 588. So a bill taken pro confesso, and plff. appearing to have no equity, bill dismissed. Deck. 667; Chit. Dig. 889. In this case the trustees answered, and upon the hearing, the chan- cellor dismissed the bill with costs. If the bill was rightfully dis- missed as to them, it manifestly follows that no decree could be had against the creditors claiming under the assignment. The trustees had all the funds and effects in their hands; and the creditors could only be affected through them. AVe apprehend that the overruling of a demurrer means nothing more than that the deft, shall answer, and the trustees having answered in this case, we think that upon the hearing the chancellor did right in dismissing the bill as to all the defts. Consequently his decree is affirmed. J. A. Bayard, for appellants. Wales, for respondents. JOHN RANDEL, Jun'r. r*. RICHAED SHOEMAKER, garnishee of THE CHESAPEAKE AXD DELAWARE CAXAL COM- PANY. The Same vs. THOMAS P. CROWELL, garnishee, &c. CAPIAS case. The deft, pleads " nulla bona " and issue. CAPIAS case. Same plea of nulla bona and issue. 5G6 RANDEL, JR. vs. GARN'S OF C. & D. CANAL Co. These cases came up on questions of law reserved by the superior court on the following statement of facts: John Randel, jr. recovered a verdict of a jury in the said court against the said company on the 25th of January, 1834, and then and there obtained judgment in the said court against the said compa- ny for damages and costs of suit, amounting together to the sum of $229,535 79. The pleadings, record and proceedings in the said suit, from the declaration to the judgment inclusive, are referred to and form a part of this case. A writ of attachment was issued upon said judgment for the col- lection of the damages and costs aforesaid, on the 6th June, 1834, returnable to November term of the same year. The said writ was served upon the said Richard Shoemaker, in the county aforesaid, at the Delaware Tide-lock, who was summoned by the sheriff of New- castle county as garnishee of the Chesapeake and Delaware Canal Company, on the loth of June, 1834. At the same time the said Richard Shoemaker was arrested by virtue of a capias, being No. 34, to November term of said court, 1834, at which time and place the said deft, having appeared and given bail, and being put to plead at the election of the said plff. under the said act of assembly, plead- ed that he had no goods, chattels, rights, credits, or effects of the said The Chesapeake and Delaware Canal Company in his hands, custo- dy or possession at the time of the attachment laid, or at any time after. On this plea the plaintiff hath joined issue, and this is the question now submitted to the court for their decision. On the 28th of January, 1834, a resolution was passed by the board of directors of the canal company, in the following words: " Resolved, that hereafter no tolls be collected on the line of the canal, on any vessel, cargo, or other article passing through the canal, until the said vessel, cargo or other article, on which the said tolls may be levied or charged, shall have entered the basin, at the western nd of the canal, excepting only such vessel, cargo or other article as may not pass through the canal to the said basin." This resolution has never been printed by the said company, nor hath any notice whatever thereof been given to the said John Randel, jr. until this time. It is admitted that the said resolution was adopted for the purpose of preventing the said John Randel, jr., from attach- ing the tolls of the said company by virtue of the said judgment, or otherwise availing himself of the jurisdiction of the courts of the state of Delaware for the collection of his said judgment. The deft, at the time of the service of the said writs of attachment and capias upon him, was, hath ever since been, and still continues to be the master of the sloop Robert and James ; the said sloop being in his hands and possession during that time as the master of the same, but he not being the owner of the said vessel. Prior to the service of the said attachment, the said vessel being freighted in the city of Philadelphia with a cargo of merchandise, intended to pass through the Chesapeake and Delaware canal, from the Delaware to the Chesapeake; the said deft, paid the tolls for so passing through said canal, to an officer or agent of the said canal company, appoint- ed by the said president and directors to collect and receive tolls, to RANDEL, JR. vs. GARN'S OF C. & D. CANAL Co. 567 wit; at the office of the said company in the city of Philadelphia, to wit; on the 14th of June, 1834. The said attachment and capias were served on the said deft, at the time of his offering to pass through the said canal (at the Dela- ware tide-lock in Newcastle county) with the said vessel and cargo, and previous to the vessel passing through the same; the said tide- lock was, when the said canal was opened for navigation on the 17th of October, 1829, established by the president and directors of the said company, as a place for the receipt of tolls in the said canal; and a collector of tolls has always been appointed to reside at that place; and the collector of tolls then at the said tide-lock permitted the said vessel and the said deft, to pass through the said canal, and the said deft, did pass through the said canal with the said vessel and cargo, without the payment of any other toll. The tolls for passing through the said canal with the said vessel and cargo, at this time, amounted to the sum of twenty-one dollars lawful money of the United States of America. The printed paper hereunto annexed, marked with the letter A, is a true copy of the regulations to be observed by vessels navigating the Chesapeake and Delaware Canal, adopted by the board of direc- tors of the said company, with the rates of toll for navigating the said canal, the same having been signed by the president and secretary of the said company and published by order of the president and di- rectors thereof, except so far as that had been altered by the resolu- tion of January 28th, above set forth. It is further agreed, that the said vessel the said sloop Robert and James (the deft, being then and there the master, and having the direction thereof) passed through the Chesapeake and Delaware Ca- nal with a cargo from Port Deposit to Philadelphia, on the 18th of June, 1834, and three several times afterwards, between that day and the return day of the said writ of attachment. Copies of the pass bills given to the said deft, on those occasions, are hereunto an- nexed. The amount of tolls on the several cargoes of the said sloop, demanded for passage through the said canal, by the Chesapeake and Delaware Canal Company, at their lock at the western end of the canal in the state of Maryland, and there paid by the said Richard Shoemaker, master of the said sloop, between the said 18th of June and the return day of said writ, was $74 44, lawful money of the United States of America. The acts of the Legislatures of Delaware, Maryland and Pennsyl- vania, relative to the said The Chesapeake and Delaware Canal Com- pany, and the several supplements thereto, are referred to, and made part of this statement of facts. It is agreed that since the resolution of January 28th, 1834, above set forth, the tolls for the passage of vessels and their cargoes through the Chesapeake and Delaware Canal, from the eastern end of said canal, in the state of Delaware, to the western end thereof in the state of Maryland, were received by the said company at their office in the city of Philadelphia, and were paid by the owners or captains, or by the agents of the said owners or captains, to the officers or agents of the said company at said office. It is further agreed that independently of the tolls so attached, and 568 RAXDEL, JH. vs. GARN'S OF C. & D. CANAL Co. all other tolls of the said company attached by the said John Bandel, jr., a sufficient amount of tolls was always left in their hands not at- tached, to repair and keep in order the said canal, their locks and other works necessary thereto, and to keep the same navigable, also to defray the expenses of the collection of tolls, including the sala- ries of all their officers. It is further agreed, that the construction of the said canal was commenced on the 15th of April, 1824, and was completed and opened for navigation on the 17th of October, 1S29. It is also further agreed, that previous to the rendition of the judgment above named, obtained by John Randel, jr., against the said canal company, that the tolls were collected in the canal at the respective toll-houses located at Delaware City and Chesapeake City, from the captains and masters of vessels passing through the said canal ; but the counsel for the said defts. protest, that said captains and masters were not personally liable to the said company for the said tolls so paid by them. If upon the foregoing issue joined in this cause upon the plea afore- said, the court shall be of the opinion that John Randel, jr., the alx)ve named plff. is entitled to judgment against the deft, as garni- shec of the said The Chesapeake and Delaware Canal Company upon the plea aforesaid the judgment shall be entered for the said plff. ac- cording to their opinion; and if the court should be of the opinion that the said John Randel, jr., is not entitled to judgment against the -said deft, on the aforesaid statement of facts, then judgment to be entered for the said deft. The statement of facts in the case of Crow ell was so nearly the same with the above, that they need not be here repeated. On the part of the plff. the following points were presented for the consideration of the court: First : There was not any such office as that of a collector of tolls in Philadelphia, and therefore there was no such officer as a collector of tolls at that place having any color of right. His appointment was a contempt of all right. Second: There was no by-law or resolution of the board of di- rectors establishing such an office, and there was no power in the board to make such a by-law. There was a valid, subsisting by-law prohibiting the exercise of any such power by any such pretended officer. Third: There was no legal payment of any toll by the garnishees in Philadelphia. The payments made in Philadelphia were made to a void authority, in fraud of law, and the by-laws of the company, of the jurisdiction of the court which issused the attachment, and of the rights of the plaintiff. Fourth: The person having direction of a vessel, being employed by others to pass through the canal, is the proper person to respond to the demand of toll, at the first lock passed by the vessel. If he enters the lock and attempts to pass without payment there, he is per- sonally liable by express satute: and his personal liability can never be released by his own wilful barratry in exposing the vessel to for- feiture. In every view of the case whether under the ninth section of the charter, or the act of the 31st of January, 1832, the master is personally liable for tolls. RAXDEL, JR. vs. GARN'S OF C. & D. CANAL Co. 569 Fifth: There was a fraudulent collusion between the collector of tolls at the Delaware tide-lock and the defendant, to evade the charter, the attachment law and the process of the court, after the service of that process on the defendant, and notice of the plff.'s rights under it. Sixth: Every person having the direction of a vessel, who takes her into the canal and passes through it without payment of toll in the canal, is guilty of an attempt to defraud in the tolls at the mo- ment he offers to pass. Seventh : If by collusion between the directors of the company and a person having direction of a vessel, or the collector at any place in the canal acting collusively under their orders, and such person, any vessel be permitted to pass through the canal without paying toll thereon, it is a fraud on the jurisdiction of the courts of the States of Delaware and Maryland, and a palpable violation of the charter which owes its whole existence to those States, and to no other. Such a fraud this State will not suffer to be practiced, for the purpose of defeating an execution creditor suing process out of her courts, her constitution having provided that " justice shall be administered without denial.'' Eighth: The courts of every civilized State and country, are the guardians of their own jurisdiction; and by the comity of nations it is settled that they are the proper judges of it. They are bound to protect it. Ninth: A receipt for the tolls given before the service of the at- tachment, even by the collector at the Delaware tide-lock, who is a legal officer, if given without payment of the tolls, is fraudulent and void as against the attaching creditor. . Tenth : Such a receipt if given for tolls paid elsewhere than in the canal is equally void, as against such a creditor. Eleventh: There can be no officer de facto, where there is no office for him to fill. Twelfth : An attachment protects a garnishee at all places from all claims or demands by the original debtor in the judgment, on which the attachment issues, provided those claims or demands arise before the return of the attachment. Thirteenth: The directors of the company are but agents of the corporation. Fourteenth: The restriction upon the power of agents or officers of a corporation contained in the act of incorporation, every person dealing with the company is bound to notice; and where by the ex- press provisions of a public statute, it is enacted that the president and directors of a canal Company " shall have power to enact rules and regulations for the good government of the said canal, its har- bors and basins and other appurtenances, and for the general conve- nience of vessels navigating the same, and to authorize and empoyer their agents and officers to enforce conformity to all such rules and regulations against any vessels violating the same, or the persons in command or direction thereof; provided such rules and regulations shall in no wise contravene the constitution or laws of this State" in that case if such rules and regulations be made and published to the world, for the information and government of persons trading 72 570 RANDEL, JR. vs. GARN'S OF C. & D. CANAL Co. through the canal, all such persons are bound to notice the powers of, and restrictions on the agents of the company contained in them. By the 21st rule or regulation appended to the cases stated, the col- lector at the Delaware tide-lock was not only " fully authorized by law," but also " required " to enforce obedience to the fifth rule and regulation requiring payment of tolls at the first lock passed by a vessel, and on payment, was bound to give the master, or person hav- ing the direction of the vessel, a receipt or pass bill for the tolls. The attachment was a payment at the first lock passed by the vessel. Plaintiff refers to the following authorities and precedents viz: 3 Del. Laws 177-8-9, 183-5-6; Digest 85, 430, 524; 2 Dallas 381; 4 Dallas 334-5-6-7; Angel and Ames 182 to 198; 4 Cranch 241; 2 Pickering 462; 5 Co. Rep. 63, b. city of London's Case; 8 Co. Rep, 253; 3 Leon. 265; 2 Kid on Corp. 165; Angel and Ames 203; 8 Del. Laws 126; 4 Com. Digest 362, Toll. E.; 12 Wheat. 78-79; 2 Cranch 167, 160 ; Bunbury 68 ; Cro. Eliz. 699 ; Lutw. 189 ; Cro. Jac. 552 ; Cro. Eliz. 533, 775, 699; 11 Serg. and Rawle 411; 12 Wheat. 69-70; 6 East 356, to 359; Com. on Con. 33; 3 T. R. 22; 10 Coke 102; Cro, Eliz. 199; Yelverton 197; 2 Buls. 213; Com. on Con. 36, 44; 3 T. R, 454, 172; 14 Mass. Rep. 58; 17 Mass. Rep. 29; 3 Peters 220; 1 Pick, 254; Bac. Ab. Wilson's Ed. 389, 6 vol.; Plowd. 57; 2 Buls. 187. 2 Sid. 41; 3 Co Rep. 7; 2..fMass. T. R. 146; 6 Bac. 391, 393, 1 T. R. 616; Plowd. 36, 59; 10 Mod. 117; 6 Bac. 391; 6 Peters 445; 1 Bac. 391; 2 Lord Raymond 934; Abbot on Ship'g. 133/156, 175, 150, note 2;. Abbot on Ship'g. 2, 195, 149, 283, 247; Molloy, book 2, c 2,s. 9, p. 233, 235; Lex Oleron 24; Salk. 249; 3 Lev. 37; Cowp. 143; 1 Strange 581; 2 Lord Raymond 13W; Chitty, Pi's. 105, 144; 2 /ns*. 55, 74; 10 Rep. 75; 1 #ac. 392; Salk. 415; 1 flo/Z's 46. 552, sec. 5; Serg. on At- tach't. 154; 15 Serg. & Rawle 176; Angel and Ames 227, 8, 230; 3 Wilson 297 ; 20 Johns. R. 229 ; 5 Johns. 101 ; 17 ditto 284 ; 1 Salk. 280; 3 JfeoZe 627 ; Serg. on Atlach't. 145, 151; 1 Com. #t#es* 585; 1 Roll's Ab. 551; 4 DaZ/as 251; Ser0. on Attach't, 151, 153-4; Ztyer 83 a; 1 Com. Z?t>s<. 585; 7 Cowen 677, 697; Cot^. 636; 9 East 126; Constitution U. S. art. 4 sec. 1. In behalf of the deft, the following points were submitted and in- sisted upon : First. That the deft, is not indebted to the canal company on the facts in the case, and had no goods, chattels, rights or credits in his hands or possession belonging to the company, and that therefore judgment must be rendered in his favor. 1 Lord Raymond 57. See charter. Second. That where any debt is owing by a garnishee, or any prop- erty, rights or credits, in his hands belonging to the deft, in the judg- ment upon which the attachment is issued, is so situated that the garnishee cannot retain it against the will of the principal, and also justify his conduct by defence in a suit at law, it is not liable to at- tachment. 2 Mass. Rep. 94 ; 3 Mass. Rep. 121 ; 4 Mass. 238. Third. That the act of assembly authorizing the attachment of the tolls of The Chesapeake and Delaware Canal Company by a creditor who has obtained judgment against said company, if so construed as to authorize the attachment to be laid in the hands of the masters of vessels passing through the canal, would be a violation of the consti- KANDEL, JR. vs. GARN'S OF C. & D. CANAL Co. 571 tution of the United States by impairing the obligation of a contract, and that the true construction of the said act, only authorizes the at- tachment to be laid in the hands of the toll-gatherers or agents of said company. 4 Wheat. 518. Fourth. That the construction of the said act of assembly so as to authorize an attachment for tolls to be laid in the hands of masters of vessels passing through the canal, would also make the act a viola- tion of the constitution of the United States, by impairing the obliga- tion of the contract between the States of Delaware, Maryland and Pennsylvania, by which the said canal is declared to be a public high- way. Fifth. That the said act of the General Assembly authorizing the attachment of the tolls of The Chesapeake and Delaware Canal Com- pany, is unconstitutional and void, because it violates the chartered rights of the company. The cases were argued at' great length by Clayton and Rogers for plff. and Gray and J. A. Bayard for defts. The court took time to consider of it, and at an adjourned term in October JOHNS, JR., Chancellor, delivered the following opinion of a ma- jority of the court : Under the issue in the preceding cases upon the facts stated and ad- mitted, the decision of the question reserved for the consideration and judgment of this court, depends on the opinion we may have in re- gard to the captain's liability to the canal company for toll and the operation of the attachment. The question relative to the captain's liability to pay toll may be considered as it exists at common law, and also as the same may be affected under the act incorporating the canal company. According to the common law, the liabilities of the captain, appear to rest upon principles which necessarily arise out of and are essentially connected with his situation. Hence he is styled the ship's husband, and as such, the law imposes on him the relative obligation of defraying all the contingent expenses that may accrue in the prosecution of the voyage, or may become necessary to enable the vessel to arrive at her port of destination. He is the person authorized to pay or pro- vide the security, and has his lien to insure reimbursement, as well as his legal remedy, to recover back all necessary disbursements. If without the means of payment, he can hypothecate the vessel ; but the liability of the vessel results from his agency, and through his in- strumentality he alone represents the personal liability, and hence the law imposes on him the obligation of defraying such customarv or legal pecuniary requisitions as are incurred in the progress of the voyage, and for the payment of which it would be productive of great inconvenience to trade, if the party abroad, furnishing the neces- saries or repairs, had to seek for the different persons who might be owners of the vessel or interested in the cargo. Hence the rule of law establishing the captain's liability in relation to matters essential to the prosecution of the voyage, has been long settled and is not now to be questioned. Allot 133, 156, 150, note;' I Peters' Adm. 223, 227; Cow. 636, 639; Hen. Bl 116. It is also conceded, that for expenses at a foreign port, such as customary toll, &c., the captain is liable ; and 572 K \XDEL, JR. vs. GARN'S OF C. & D. CANAL Co. such is the law as established by decisions. But it has been contended, that the present cases, being claims for canal tolls, are not embraced within the rule of the common law, and are in principle distinct. That which constitutes the captain's liability we apprehend to be first, the necessity of the expenditure, and secondly, that the same is made in the prosecution of the voyage and on account of the vessel or cargo. Apply this rule to the case under consideration. The voyage is to be performed from Philadelphia to Baltimore, passing through the Chesapeake and Delaware Canal. By the charter, the tolls can only be received or collected at some place in the line of the canal, and in case of neglect or refusal to pay, when the vessel offers to enter, the collector is authorized to refuse admittance; if not paid on entering, and the vessel passes without payment, then the vessel is liable to seizure and sale. Can a stronger case of necessity for payment exist, when the law authorizes the refusal of entrance on neglect or refusal to pay, and also the seizure and sale of the vessel, which not only en- dangers the prosecution of the voyage, but entirely destroys it; and does not the captain by payment comply with the obligation legally imposed, and in doing so, act as well on account of the vessel as her cargo? But admitting the captain's liability, to the extent of all ex- penses incident to the vessel, it is contended that it cannot be enlarged so as to include charges, which are imposed on the cargo ; and a dis- tinction is made between repairs and necessaries for the ship and tolls laid upon the goods. Thus in the cases submitted, it is alledged, the act of incorporation establishing the amount of toll, charges the same upon the articles of freight, and not upon the vessel. This has been much relied on as exonerating the captain from liability, and trans- ferring it to the merchants or owners of the goods. This objection we will consider, admitting for the purpose of allowing to it full weight, that the goods are liable to pay toll, the captain, we apprehend, would be bound to discharge whatever might be legally demanded during the prosecution of the voyage and even at its termination. That he would be thus liable, appears to follow as a necessary consequence from his being in possession of the goods, and more especially, when by the terms of his contract with the owners, in signing the bill of lading, he undertakes to deliver the goods at their place of destination to the con- signee. That the goods are liable for toll under the charter, is evi- dently a misapprehension of the statutory provision; they are not in the act of incorporation declared to be liable to the payment of toll, so as to authorize the collector under any circumstances to resort to them for the purpose of collecting the toll imposed. If the toll be not paid, the collector cannot seize the goods, this remedy is by the act expressly restricted to the vessel, and it alone is liable to seizure and sale. The law authorizes the collector to demand and receive tolls, and refers to certain enumerated articles for the purpose of fixing the rate of toll, not intending thereby to render the articles specifically liable to the payment of the toll, but evidently to ascertain and regulate the amount the collector may collect or receive, either from the person or vessel passing through the canal. If then the goods are not liable, and the collector have the right to refuse admittance to the vessel on non-pav- ment, or after passage to seize and sell the vessel, then clearlv, the case of necessity is made out in which, according to the principles al- RANDEL, JR. vs. GARN'S OF C. & D. CANAL Co. 573 ready stated, the captain becomes liable and must pay for the purpose of prosecuting his voyage, and also of protecting his vessel. We have considered the general principles which are involved in the question to be decided, in reference to the captain's liability at common law independent of the charter, and before we advert to the act of incor- poration, we will refer to a decision which fully sustains the opinion expressed, in regard to the common law liability. The case may be found in Molloy, p. 231, and in 3 Lev. p. 37: It is, The mayor and commonalty of London against Hunt, in the Exchequer Chamber ; error of a judgment in B. R. in assumpsit brought by the mayor and commonalty against Hunt, wherein they declared of a custom, that they and their predecessors, mayors, &c., have had of every master of a ship eight pence per ton for every ton of cheese, brought from any part of England to the port of London ab oriente de London Bridge, in the name of weighage, and the deft, being master of a ship had brought to the port of London so many ton, which at the rate aforesaid, came to so much, and had not paid it; and upon non-as- sumpsit, verdict' and judgment for the plaintiff. Upon which Hunt the deft, brought a writ of error, and two errs were assigned; first, that the action lies not against the master, for the duty is due from the merchants, owners of the goods; secondly, that there is no con- sideration here for the duty; for this is only in the nature of a toll thorough, which is not due without consideration (22 Ass. 58) and the river is a common highway. But the judgment was affirmed; for First, the master is intrusted with the goods; he hath recompense from the merchants for the portage; he is responsible for them and shall be charged for the duty ; and indeed it would be infinite to search out the owners of the several goods ; besides, the goods are in the cus- tody of the master; he brought them into port, and therefore shall be charged. Secondly, the consideration is sufficient, he had the liberty of bringing them into port, which is a place of safety, and therefore im- plies a consideration in itself, and Cotton's Rec. 678, the mayor and commonalty of London have the view and correction of the river of Thames by Stat. E. 4, and Hill. 33, 34. The judgment was affirmed. The next question to be considered, relates to the effect and opera- tion of the cause in the charter, granting to the canal company a sum- mary remedy. It has been insisted on in the argument of the case, that this is exclusive and precludes the company from any remedy against the captain, in case of non-payment; until by seizure and sale of the vessel, they fail to obtain the amount of the toll. It may be well, before examining the latter part of the proposition, to inquire whether the grant of a summary power, to enforce payment of tolls, excludes the common law remedy. The act of incorporation author- izes the company to sue and be sued, by their corporate name, and con- sequently, they are thereby qualified to avail themselves as suitors of every legal remedy, which may be necessarv to protect their interests or enforce their rights. Hence we would infer, that an omission to adopt the summary mode of collecting the toll, cannot deprive them of the general power of enforcing payment by action. Such a limited construction of the act would be contrary to the rule adopted in 574 RANDEL, JR. vs. GARN'S OF C. & D. CANAL Co. analagous cases, in which the statutory remedy, being summary, is considered accumulative, as in the law authorizing distress for rent, and seizure and sale for tax, in all which and analagous cases, the rem- edy by suit is not taken away, but still subsists, and may at the elec- tion of the party interested, be adopted. But it may be said in an- swer to this general rule, that the grant of summary power does not exclude the common law remedy: admitting this to be so, yet the act of incorporation declaring that, " the person having the direction of such vessel, shall be liable for such toll, if the same is not paid by the sale of such vessel as aforesaid, does postpone the captain's liability, and consequently the remedy against him, until .the company shall have seized the vessel, thus rendering it imperative upon the company to resort to the vessel as primarily liable, and therefore on failure to seize and sell the vessel, depriving them of any other remedy in all cases where the vessel passes without paying the toll. If this be the true construction of the act then, instead of being as no doubt it was intended, the means of protecting the interests of the company and enlarging their powers in collecting toll, the contrary effect would be produced; because, if the act suspends the common law remedy and ultimately destroys it as against the captain, unless and until the com- pany have seized and sold the vessel, and this they cannot do until the vessel shall have passed the canal ; then the remedy is not certain but contingent, and should the seizure of the vessel be prevented by any occurrence, the company are without remedy. This right of seizure, notwithstanding the act says, " wherever found," must necessarily be limited in its exercise and confined within the jurisdiction of the states ; granting this power, it cannot be exercised beyond the territory over which the right of legislation exists. Considering as we do that the act grants accumulative remedies, and is designed to enlarge the power of the canal company in collecting their tolls, which a proper consideration of it will, we think, fully and unequivocally establish, we would here remark, that the clause " the person having the direc- tion of such vessel shall be liable for such toll if the same is not paid by the sale of such vessel as aforesaid/' was probably inserted for the purpose of removing all doubt as to the continuance of the captain's liability, in cases where the party electing to pursue the summary remedy, by seizure of the vessel, failed to obtain payment, and such a construction is in furtherance of the right and in affirmance of the common law. Having thus considered the question as to the liability of the cap- tain at common law, and whether the grant of summary power to collect toll, either suspends or annuls the remedy by suit, we shall now inquire what is the true construction of the charter upon this subject. By the charter, the corporation are authorized and required to collect and receive the tolls, at a place in the line of the canal. The words are " it shall and may be lawful for the said president and directors, after the said canal shall be made navigable, to demand and receive the following tolls, at such place or places in Hie canal, as they may hereafter direct." The act of incorporation thus restricting and con- fining the action of the board relative to the place of demanding and receiving toll to the canal, it necessarily follows that they cannot KANDEL, JR. vs. GARN'S OF C. & D. CANAL Co. 575 legally demand or receive payment in any place out of the prescribed limits. The act, after limiting the power of the company, both as to the demand and receipt of toll to the canal, further provides, that in case of refusal or neglect to pay the toll at the time of offering to pass through the said canal, and previous to the vessel passing through the same, the collectors of the said tolls may lawfully refuse passage to such vessel. This clause evidently contemplates a voluntary and not a payment by coercion ; it regards the rights of the parties as independ- ent, and authorizes the collector to refuse the right of passage if the toll remains unpaid, either by refusal or neglect. These expressions can only be applicable to some person, they cannot be applied either to the vessel or goods, for it would be absurd ; they are necessarily passive, and cannot either refuse or neglect; it is true the vessel may, after passage, become liable, but the goods under no circumstances are so; the terms used, must therefore, upon a fair and reasonable construc- tion, refer to the person competent to refuse and who may neglect ; and clearly this is the proper reference when we advert to the immediate consequence thereof, being the refusal of passage, which operates di- rectly upon the captain, and deprives him of the right to use the canal as a public highway. Besides, if this be not the meaning of the act, then by fixing the place of payment in the canal, and requiring pay- ment at the time of offering to pass, unless the obligation to pay rests upon the captain, none being imposed upon the vessel primarily, it would appear wrong, as the canal is declared a public highway, to de- prive him of the right of passage when he is incapable of being guilty either of neglect or refusal. But he is the person really and sub- stantially interested in the right of passage, and the liability to pay rests with him, as the carrier and possessor of the goods, and it does appear impossible to transfer the same to the owners of the goods, so as to make them answerable to the canal company for the tolls. It may be shown that the master signs all the bills of landing by which he undertakes to deliver the goods at their destined port. If goods be shipped at Philadelphia to be delivered at Baltimore, via the canal, the tolls form a part of the freight and increase its price; and the pay- ment of the tolls being an expense, necessarily incident to the voyage, and as the captain cannot complete the voyage without paying them, it seems impossible to say, unless you suffer him to violate his contract, that he is not bound to pay them, nor without it could he earn hip freight. After the clause operating at the time the vessel offers to pass and in passing, follows the provision relative to the rights of the company and their remedy, after the vessel shall have passed without paying toll. The words of the act are as follows : " and if any vessel shall pass without paying the said toll, then the said collectors may seize such vessel wherever found, and sell the same at auction for ready money, which so far as is necessary shall be applied towards paying said toll, and all expenses of seizure and sale, and the balance if any shall be paid to the owner, and the person having the direction of such vessel shall be liable for such toll if the same is not paid by the sale of such vessel as aforesaid." The above clause has been insisted on as exempting the captain from 576 KANDEL, JR. vs. GARN'S OF C. & D. CANAL Co. liability, until after the company have seized and sold the vessel, hence, making the liability of the captain conditional and secondary, and not original or primary. This construction of the clause will require the word may to be erased, for it evidently confers the power to do or not to do the act authorized, and implies the right of election. Hence, as the legislature have said, the company may seize and sell the vessel, we infer, if they refrain from collecting the toll by seizure and sale of vessel, the right and remedy against the captain remains perfect and unimpaired. Had the intention been to make the captain liable for any deficiency, the phraseology should have been different; the language adopted is such as to imply, that in case of sale the value of the vessel would exceed the amount of toll and expenses, since it is provided that the balance, if any, shall be paid to the owner, and the liability of the person having direction is not declared to be such, a& to make him responsible for any deficiency, but without reference to the amount received from the sale, and upon the non payment of toll by sale, he is liable : the intention manifestly being, to continue the pre-existing liability of the captain, unless payment is obtained, by the seizure and sale of the vessel, and to preclude him from any de- fence against the claim of the company, unless he can show payment. The construction we have given that part of the act of incorporation relative to toll, as connected with the captain's liability, appears to us, in accordance with the common law principles, and altogether con- sistent with, and we may add, essential to the preservation of the rights of the canal company. It fully recognizes the common law ob- ligation of the captain, and retains to the company their several rem- edies, as separate, distinct and accumulative, thereby affording the means of enforcing payment of toll, either by suit or by the summary mode of proceeding in rem as prescribed by the charter. That the legislature should thus grant the summary power, and not design thereby to impair any common law remedy or liability, is further evi- dent from the circumstance of the canal being declared a public highway, which had it not been controlled by vesting in the company authority to demand and receive toll prior to the exercise of the right of passage, would have occasioned much loss and difficulty in obtain- ing payment. If the construction we have given the charter be correct, then the case stated, admitting no payment of toll at the time of entering or whilst passing, nor by the sale of the vessel, it necessarily follows the captain is liable, and to the amount of the sum due for tolls, is in- debted to the canal company; and hence under the attachment law dated March 24, 1770, sec. 18 (See Dig. Del. Laws 51) the plff. in the attachment would be entitled to judgment. Having thus considered the captain's liability to pay toll as primary and not dependent on the seizure and sale of the vessel ; and also the judgment creditor's right to attach tolls due and unpaid when pay- ment thereof has not been made in manner and place as prescribed by the charter, we will now advert to that part of the case which the argu- ment and not the case stated has presented under the act of 1829, entitled " An act for expediting suits against corporations." Sec. 4. Dig. Del. Laws 98. KANDEL, JR. vs. GARX'S OF C. & D. CANAL Co. 577 It has been insisted on that tolls are not liable to attachment. With respect to tolls due and unpaid, our opinion has been declared, that they are subject under the act of 1770. And by the act of 1829, au- thorizing the judgment creditor after sixty days to attach the tolls due or to become due of said compan} r , it may be said the legislative pro- vision is express and ita lex scripta est. But it has been objected that this act of 1829, is unconstitutional, inasmuch as it violates the clause in the tenth section of the first art. of the constitution of the United States which declares that " no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts" Is it ex post facto, that phrase in the constitution of the U. States is only applicable to such laws as relate retrospectively to crimes, pains and penalties, Colder vs. Bull, in Sup. C. U. States, 3 Doll. 386. Is it then a law impairing the obligation of contracts ? It has been alledged that it is by affecting the chartered rights of the company; which, it has been contended, being a grant from the legislature, is a contract; if then it is a violation of the charter of the canal company, it must be by repealing some part thereof, either expressly or by implication : there is no repeal by express terms, nor can any be inferred : the pow- ers and rights of the company under the charter are the same now as prior to the act of 1829 ; and as to their contracts, certainly they can- not be impaired by a law purely remedial, and designed to enforce the performance of contracts entered into by the company under their charter. Besides, the act of 1829 does not enlarge the obligations of the company, nor affect property or rights which by legislative grant were exempt, but rather the reverse, for if we advert to the original act incorporating The Chesapeake and Delaware Canal Company, it will appear the tolls are declared liable. In the case of Stoddard vs. Smith, 5 Binn. page 358, Duponceau in argument remarked, "the remedy is no part of the contract. Every legislature must add, alter or take away remedies to suit the public convenience." Tilghman C. J. in delivering his opinion, page 364, remarks : It is said, by this law, the obligation of the contract is impaired. If the law took effect before the contract, the objection vanishes. At present we are not satisfied on this point, nor are we satisfied that even if the contract preceded the law, its obligation is impaired by it. Every thing stands precisely as agreed on, but in case of default a summary remedy is given. Yates, J. " The obligation of the contract on either side was wholly unimpaired, each stood bound to perform their stipulated engage- ments. What change then did the law profess to introduce? None whatever, but the simple one of accelerating the remedy. Private rights are preserved, but a remedy for a wrong is to be administered. In this I cannot see any violation of the constitution." In lake manner in the case under consideration, it may be asked, have the legislature done more than to extend the remedy? We ap- prehend they have not, and that unless it be unconstitutional to en- force by legislative enactments the payments of debts, the law of 1829, cannot be considered a violation of the constitution of the United States. Independent of the act authorizing the creditor to attach the tolls due or to become due, payment at the time of offer- ing to enter the canal, might have been considered a purchase of the 578 RANDEL, JR. vs. GABN'S OF C. & D. CANAL Co. right of passage, and being made prior to the engagement of the right, no indebtedness would have existed, and hence the attachment would not have been available with respect to the tolls accruing. In the cases submitted, no question of this kind is presented, as it is admitted, the tolls were not paid at the time of offering to enter, or prior to the attachment being laid in the hands of the cap- tains, in manner as prescribed by the charter. But, supposing the captains, after service of the attachment, and before entering the canal, had, at the time of offering to enter, paid the tolls, it would not have been available, because, the supplemental act, authorizing the attachment of the tolls, was intended to operate, upon the thing described and designated as toll before payment, and even before the same became due, the words of the act being " tolls due and to be- come due". It is therefore essential, if the supplemental act is to have effect to give it such a construction as will attach the sum to be paid at the time, when the liability to pay the same arises and the party to whom the payment is to be made, has the legal right to make the demand. The charter has fixed the time and place, and hence, we consider, that whenever the creditor, at the time the lia- bility to pay toll arises, interposes the writ of attachment, he there- by legally suspends the right to pay or receive and has a right to the same according to the principles of the attachment law. It has been in the argument insisted, that such a construction imposes much hardship and inconvenience on those engaged in trade; the answer to this is, that the inconvenience is not properly chargeable upon the creditor seeking to enforce payment, but upon the debtor whose de- fault and omission to pay his debts occasions all the difficulty and inconvenience. Judgment for plaintiff. Clayton and Rogers, for plaintiff. Gray and J. A. Bayard, for defendants. INDEX, ADMINISTRATOR. What will make one liable as administrator de son tort when there is a rightful executor. State, use of St. Peter's Church v. Larkins' executors, 120. A promise by an administrator will revive a debt barred by limitation. Bennington v. Parkin's administrator, 128. Goods of the deceased remaining in specie are liable to be taken in exe- cution, unless they have been administered in whole or in part by the payment of debts. Adams' administrator v. Burton, sheriff, 138. AGENT. The acts of an agent in the general course of his employment are evi- dence against his principal, withoxit proof that they were done by his orders. Waples et al. v. Waples, 474. The directions of an agent of a company in relation to their business, and his declarations at the time of giving such orders in relation thereto, or to their business generally, being part of the res gesta, are evidence against the company ; but his general declarations, conversation, or letters not immediately connected with or growing out of the discharge of his agency, are not evidence. Randel v. The Ches. & Del. Canal Company, 234. And the nature of his agency, and its extent, may be inferred from facts and the connexion of his acts with the business in which he is- employed. Ibid., 234. AMENDMENTS. Pleadings are amendable in the discretion of the court at any time before judgment. State, use of Godicin v. Collins, et al., 216. The distinction between pleadings in paper and of record is not ap- plicable to our practice. Ibid., 216. The object of pleadings is to present clearly the points in dispute, and to give notice of what is to be tried, so that justice may be done. Ibid., 216. And where this object cannot be effected without altering the plead- ings, amendments are at all times allowable in the discretion of the court. Ibid., 216. ANNUITY. Interest may be recovered on the arrears of an annuity given in lieu of dower. Bceson's ex'r. v. Beeson's adm'r., 106. APPRENTICES. Forms of indentures of Note to Davis' case, 18. 580 INDEX. ASSAULT AND BATTERY. The defence of possession, how far an excuse in an action of assault and battery. U'Dermott v. Kennedy, 143. If one order another out of his house he is bound to go; and, if he re- fus.e, the necessary force may be lawfully used to put him out. Ibid., 143. A false imprisonment does not necessarily include an assault and bat- tery. Murphy v. Countiss, 143. ASSUMPSIT. Indebitatus assumpsit will not lie by the administrator of tenant for life for an apportionment of the rent. Plaintiff must declare specially. Harris' ex'r. v. Vickers, 6. Assumpsit will lie for a fee due to counsel. Stevens v. Monges, 127. If money be placed in A.'s hands by B. to pay his debt to C., he is liable to C. in assumpsit: but cannot be attached as the garnishee of B. Farmers' Bank v. Stidham's garnishee, 303. Assumpsit is a very liberal form of action, and will lie to recover back money paid to a trustee for a specific purpose, if it has not been applied to that purpose, and he promises to refund it. Quthrie v. Hyatt, 446. ATTACHMENT. If money be placed in A.'s hands by B. to pay his debt to C., he is liable to C. in assumpsit, but cannot be attached as the garnishee of B. Farmers' Rank v. Stidham's garnishee, 330. The payee of a note cannot endorse it over after it has been attached in the draAver's hands. Robinson v. Mitchell & Quinn, 365. A wife's chose in action is liable to be attached for the debt of her hus- band. Johnson v. Green's garnishee, 442. On attachment against an absconding debtor there need not be a second appraisement. Donely v. M'Grann & M'Clay, 453. The tolls of the Chesapeake and Delaware Canal Company are liable to attachment in the hands of the masters of vessels passing through the canal. Randel v. Shoemaker, garnishee, 365. AWARDS. Chancery has jurisdiction to inquire into awards, though made on a reference in a court of law, on the ground of fraud on the referees discov- ered after judgment on the award. Waples' adm'r. v. Waples et al., 392. Judgments on awards are as obligatory as judgments after verdict. Ibid., 392. BAIL. To declare in a different form of action from that in which bail is taken releases the bail. Waples v. Derrickson, 134. Special bail relieved when the principal has been discharged under insolvent law. Bailey v. Seal's special bail, 367, 466. Bail to the sheriff let in to defend the original action after judgment by default against his principal, and also judgment by default against himself. Outhrie v. Robinson, 368. BREACH. See PLEADING. BY-LAW. A by-law of a bank, giving it a lien on stock for the debts of the holder, is valid. M'Dowell v. Bank of Wilmington d Brandyioine, 27. INDEX. 581 CERTTORART. The adjournment of a cause by a Justice of the Peace must be to s certain day, and not indefinitely. Jaques v. Rice, 33. And the record must show regular adjournments, 495. A return of " served by copy " to a summons is not sufficient, 33. The return must show the mode of serving precisely, 452. If constable take the body to prison, he must leave a certified copy of the execution to authorize the prisoner's detention. Grazier's case, 33. Justices must certify in the record the qualification of referees. Moon's use v. Ball, 106. If referees report against a defendant not regularly a party in the cause, the report as to him is a nullity, and no judgment can be rendered upon it: but it will not vitiate the report as to the other parties. Davis v. Denning et al., 225. A justice cannot refer a cause but on the application of a party. Neicbold v. Polk, 335. Justices have not the power to take confessions of judgment without previous proceedings, except in the case of a judgment note. Morrison v. Wil. & Kennet Turnpike Co., 366. On a judgment by default the justice must state that it was after hearing the proofs and allegations of the plaintiff, unless it otherwise appear from the record that he did so. Colesberry v. Stoops, 448, 494. Every suretyship before a justice must be signed, 452. The summons must state the place of meeting with certainty, 494. Form of judgment by default, 495. A fieri facias cannot issue on a judgment after the death of defendant without a scire, facias. Cooper v. May, 18. It seems that a judgment may be kept alive by a fieri facias issued within the year, and by regular continuances by vice comes afterwards as against the original party. Ibid.. 18. Service of original process must be at least four days before the re- turn, exclusive of the day of service and return. Robinson v. Callings et al., 498. On execution attachment the garnishees must be summoned to appear at the return of the execution. M'Clay v. Houston's adm'r., 529. Justices of the peace have jurisdiction only of such cases of trespass as are for direct and immediate injuries to property. Hawthorne v. M'Ghiire, 530. On a certiorari the justice need not send up matters of evidence. Kizer \. Downey. 530. If a freeholder be arrested on a capias he must object to it before going into a trial, or it will not vitiate the judgment. Ibid., 530. CHANCERY. Equity will distinguish between principal and surety, though the na- ture of the security be such as to make them all principals in a court of law. M'Dowell v. Bank, 369. Under peculiar circumstances a court of equity will assess damages, or send an issue to law to have them assessed. Ibid., 369. Chancery has jurisdiction to inquire into awards though made on a ref- erence in a court of law, on the ground of fraud on the referees discov- ered after judgment on the award. Waples' adm'x. v. Waples et al., 392. The chancellor has not the power to appoint a master in chancery. Reynold v. Dodd's adm'r., 401. The chancellor may direct an issue at any time before final hearing. Ibid., 401. On a bill for an account of partnership transactions an interlocutory decree to account is decisive of the existence of a partnership, but not of its extent or terms. Ibid., 401. 582 INDEX. CHANCERY. If a partnership be established it is prime facie one of equal interests. Ibid., 401. The court will not decree a division of subsequent profits after the dis- solution of a partnership, merely because the withdrawing partner's share of the profits already accrued are not paid over to him. Ibid., 401. One partner is not entitled to compensation for his attention to the business without a special contract to that effect. Ibid., 401. The ground on which equity compels specific performance of parol agree- ments concerning lands is the prevention of fraud. Carlisle et al. v. Fleming et al., 421. When part performance is relied on as taking a case out of the stat. frauds, the acts must be unequivocally in execution of the agreement. Ibid., 421. And the terms of the agreement must be clearly proved. Ibid., 421. On a promise by a father to one of his sons, that if he, the son, would continue with him, he would leave him the farm at his death, the court refused to decree a specific execution against the heirs at law, on the ground of an agreement performed by the son. Ibid., 421. Can trust money be followed into land upon evidence, as against judg- ment creditors. Quere? Roberts v. Broom et al., 57. When the conveyance is to a trustee without noticing the trust, the application of the trust fund should be clearly proved. Ibid,, 57. How far a vendor has a lien on the land for his purchase money, and against whom. Budd et al. v. Busti et al., 69. Payment of a substantial part of the purchase money is such a part performance of a parol agreement for the sale of land as will take the case out of the stat. frauds, and a court of equity will decree a specific execution of the agreement. Townsend v. Houston, 532. The payment must be clearly made and accepted in execution of the agreement. Ibid., 532. The indorser of a note under protest is not entitled, even in equity, to be considered a creditor of the drawer, and to come in for a share of his effects under a general assignment for the benefit of creditors. Farmers' Bank v. Gilpin et al., 561. CONSTABLE. A constable is bound to use reasonable diligence in the execution of process. State, use of Jewell v. Porter, 126. What is due diligence in making a levy. Ibid., 126. COVENANT. A covenant for the forthcoming of goods to be levied on at the suit of A. is broken by causing them to be levied on in the meantime at the suit of the covenantor. Whiteman v. Slack, 144. Any agreement under seal is a covenant. Randel v. The Ches. d Dela- ware Canal Company, 151, 233. The language of a covenant is to be applied to the party to whom it reasonably belongs. Ibid., 151, 233. The whole contract is to be taken together, and that construction pre- ferred which will give effect to the whole. Ibid., 151. If there be ambiguity it is to be taken most strongly against the cove- nantor. Ibid.. 151. And even where the language is that of the covenantor, it will be ap- plied to the other party if the intent so require it. Ibid., 233. In covenant the damages are merely compensatory or remunerative, and cannot be exemplary. Ibid., 234. INDEX. 583 COVENANT. Covenant will lie before a justice of the peace in some cases. Coles- berry v. Stoops, 448. CUSTOM. It seems the incoming tenant has a right to fill the ice-house before his term commences, from necessity and custom. State, use of Thompson v. M'Clay et al., 520. A particular custom must be pleaded ; a general custom will be judi- cially noticed. Templeman v. Biddle, 522. The way going tenant is entitled to the wheat crop by the general cus- tom of this state; not so of the oat crop. Ibid., 522. DECEIT. In an action on the case for recommending a person as fit to be trusted when in fact he was insolvent, the knowledge of his insolvency as well as the fraudulent intent must be proved. Fooks v. Waples, 131. DEED. A deed takes effect from the delivery. Crawford & Co. v. Slack, 122. DEMAND. If a note is payable at a certain place, demand at the place must be averred. Bank v. Cooper's admr., 10, 331. Demand must be made on the last day of grace. Bank v. Simmons, 331. The want of funds of the drawer at the bank will excuse the demand there; but this must be averred. Bank v. Cooper's admr., 10. A bank depositor must make an actual demand for his deposit before suit brought. Johnson v. Bank, 117, 496. It seems that a promise by an indorser with knowledge of the facts 13 a waiver of notice, and also of the demand on the drawer. Bailey v. Seal, 232. In debt on a bond payable on demand, plaintiff need not prove a de- mand before action brought. Hearn v. Beam, 498. DEVISE. Devise to A. to be holden of him, his heirs and assigns for ever: but in case A. should decease without lawful issue, then the lands given unto him shall go and descend unto B. him and his heirs lawfully begotten of his body for ever gives A. but an estate tail. Lessee of Waples v. Harman. 223. A devise to A. B. and C. and all the other children of D. that shall hereafter be born, with directions that D. should keep the property until the youngest child he then had, or shall hereafter have, shall arrive at age, does not give D. a right to the possession during the possibility of issue, but only during the minority of any child actually in existence. Lessee of Broom v. Thompson et al., 343. General devise considered a fee to effect the intent of the testator. Cordry v. Adams, 439. A devise to A. and her heirs for ever ; but if she should die before she arrives at lawful age or has heirs lawfully begotten of her body, then to B. ; is a fee simple in A. with an executory devise over to B. and not an estate tail. Fergus' lessee v. Robinson, 476. Or may be changed to and to effectuate the intention of the testator. Ibid., 476. A devise to A. and her heirs for ever, except she should die without an heir born of her own body, then over to B. is an estate tail in A. with a vested remainder in B., and not a contingent fee with an execu- tory devise. Martin's lessee v. Roach, 477. 584 INDEX. DEVISE. A devise of real estate to a church is void. Ferguson's lessee r. Hedges, 524. A lapsed bequest of real property goes to the heir at law; a void one to the residuary devisee. Ibid., 524. DIVORCE. The court will entertain a suit for divorce though the defendant ap- pears and does not deny the petition. M'Caulley v. M'Caulley, 137. On a decree of divorce the court will inquire into waste committed by the husband on the wife's land since the petition, and compensate her for it out of the husband's estate. Grubb v. Grubb, 516. DOWER. Damages for arrears of dower can be recovered against a purchaser only from the time of his title accrued. Newbold v. Ridgway et al., 55. Interest may be recovered on the arrears of an annuity given in lieu of dower. Beeson's ex'r. v. Beeson's adm., 106. Dower may be assigned against one of several tenants in common where there has been a severance. Ridgway et al. v. Newbold, 385. It seems that purchase for a valuable consideration without notice, is not a good defence against a claim of dower, either at law or in equity. Ibid., 385. Construction of the terms lien and incumbrance in the dower law of 1816. Griffin v. Reese et utc., 508. Debts contracted prior to the act of 1816 not preferred to dower, un- less they are liens, &c. Ibid., 508. If land be sold by the sheriff on a judgment obtained after 1816, though for a debt contracted before, it is liable to dower. Ibid., 508. A sheriff's sale cannot divest the claim to dower any more than a vol- untary sale by the husband. Ibid., 508. EJECTMENT. In a mixed possession the law adjudges it to him who has the legal title. Hunter v. Lank, 10. The boundaries in a deed are to be first regarded, the courses and dis- tances next. Ibid., 10. Title under sheriff's sale and before deed executed not sufficient to maintain ejectment upon. Crawford's lessee v. Green, 464. Sheriff's deed essential to title by execution. Ibid., 464. ESTATE TAIL. The lineal warranty of tenant in tail in possession, descending with assets of equal value to the heir in tail, bars him from claiming the lands warranted. Ford's lessee v. Hays et al., 48. Devise to A. "to be holden of him, his heirs and assigns for ever; but in case A. should decease without lawful issue, then the lands given unto him shall go and descend unto B. him and his heirs lawfully be- gotten of his body for ever " gives A. but an estate tail. Lessee of Waples v. Barman, 223. A devise " to A. and her heirs for ever ; but if she should die before she arrives at lawful age or has heirs lawfully begotten of her body, then to B." is a fee simple in A. with an executory devise over to B. and not an estate tail. Lessee of Fergus v. Robinson, 476. Or may be changed to and to effect the intent. Ibid., 476. A devise " to A. and her heirs for ever, except she should die without an heir born of her own body," then over to B. is an estate tail in A. with a vested remainder in B. and not a contingent fee with an execu- tory devise. Martin's lessee v. Roach, 477. INDEX. 585 ESTOPPEL. The lineal warranty of tenant in tail in possession, descending with assets of equal value on the heir in tail, bars him from claiming the land warranted. Lessee of Ford v. Hays et al., 48. A. being seized in fee of an estate, joins in a deed of partition of the estate of his wife's father, and takes this estate, inter alia, as his wife's share of her father's estate held that the heirs of A. are estopped from claiming A.'s original title. Lessee of Simmons v. Logan, 110. A deed of partition operates as an estoppel as to the parties and all claiming under them. Ibid., 110. Facts admitted on one sci. fa. cannot be controverted on an alias sci. fa. Earle's use v. Millen's adm.,, 139. EVIDENCE. The notarial book of a deceased notary is evidence of the facts it states in relation to protest, notice, &c. Bank v. Cooper's adm., 10. In an action on the warranty of a horse, proof that the defendant pending the negotiation, said to a third person, I will warrant the horse to be sound, will not sustain the action. Sipple v. Breen, 16. And such warranty though made to an agent of both parties appointed to effect an exchange between them, will not support the action if the exchange be not made by the agent. Ibid., 16. The proper proof of a sealed instrument is by the' attesting witness, or by proof of Tits handwriting if he be dead, &c. Proof of the hand- writing of the obligor is not sufficient. Lambden's ex'r. v. Norris, 22. Proof of facts amounting to a payment or discharge in law, does not support a plea of actual payment. State, use of Reading's adm. v. Reading, 23, 190, 331. Evidence of a bond to Sarah Eliza R. does not support the averment of a bond to Eliza R. Ibid., 23. The admissions of a party having a community of interest with th other defendants are evidence against all. Ibid., 23. The discharge of an indorser by the acts of the holder cannot be set up at law after judgment. M'Dowell v. Bank, 27. A variance between a contract alleged and one offered in evidence is fatal; whether the action be upon the contract, or in tort arising out of it. Randcl v. Wright, 34. In an action on the warranty of a vessel at the suit of the owner, the master is not a competent witness to prove that the vessel was lost through unsoundness and not from negligence. Newbold et al. v. Wil~ kins, 43. A probate must disclose all the credits within the plaintiff's knowl- edge. Lolley v. Needham's ex'r., 86. The deposit book or scratcher of a bank is evidence against a dealer. Johnson v. Bank, 117. When an attorney is privileged from giving evidence. Ibid., 117. It seems that indentures executed by the Orphan's Court of Maryland are not sufficient evidence without the law authorizing such court to bind. Potter v. Hyndman, 123. In case for malicious prosecution plaintiff must prove the prosecu- tion, acquittal, want of probable cause, and malice of the defendant. Rhodes v. Silvers, 127. In an action on the case for recommending a person as fit to be trusted when in fact he was insolvent, the knowledge of his insolvency as well as the fraudulent intent, must be proved. Fooks v. Waples, 131. Books of assessment are not evidence to prove property or value, ex- cept as between the county and the assessed. Griffith et ux. v. Johnson's adm., 136. In an action of covenant against a corporation a contract made and 586 INDEX. EVIDENCE. executed by a committee of the board of directors, but not under the corporate seal, is not evidence; though the authority of the committee be proved, and the contract actually recognised and acted upon by the company. Randel v. Chea. and Del. Canal Co., 234. The answer of a corporation is evidence against them, though made in a different cause, and without oath. Ibid., 234. The directions of an agent of. a company in relation to their business, and his declarations at the time of giving such orders in relation thereto as to their business generally, being part of the res gesta, are evidence against the company: but his general declarations, conversations, or letters not immediately connected with or growing out of the discharge of his agency, are not evidence. Ibid., 234. And the nature of his agency, and its extent, may be inferred from facts, and the connection of his acts with the business in which he ia employed. Ibid., 234. Depositions written out by a witness admitted in evidence under peculiar circumstances. Ibid., 234. The protest of an inland bill is not proved by the notarial seal, but the notary must be called: though it appear from the bill that it has been indorsed to a foreigner. Ibid., 234. A statement in writing made by a person, though not on oath, ad- mitted to contradict his deposition. Wright v. Richards's adm., 323. A natural guardian account is not evidence. Cannon's use v. Lay- ton, 324. In an action of trespass the declarations of defendant at the time are evidence to show the quo animo, and admissible as a part of the res gesta. Emory v. Callings, 325. The endorsement of a notary taken as evidence of the time of demand, though the protest bore a different date, on a proof of his usage. Bank v. /Simmon*, 331. The want or failure of the consideration of a note may be given in evidence as between the original parties. Hart well v. Mac Beth, 363. The oath of one witness with corroborating circumstances, will out- weigh an answer on oath. M'Dowell v. Bank, 369. Queref Will not the oath of one witness, unsupported, establish a fact against the answer of a corporation. Ibid., 369. The plaintiff is competent to prove the loss and manner of the loss of a bond. Shrowders v. Harper, 444. The proof is to the court who are to be satisfied of the loss before admitting secondary evidence. Ibid., 444. The loss of a paper is first to be proved; then its execution in the same manner as if produced. Ibid., 444. Bill of lading proof of property. Bailey v. Capelle, 449. Sheriff's sale no evidence of value in an action against him for an illegal seizure. Ibid., 449. Sheriff's return is prima facie evidence. Ibid., 449. Payment may be proved by parol though a receipt was given. Donely v. M'Grann et al., 453. The acts of an agent in the general course of his employment are evidence against his principal without proof that they were done by his orders. Waples v. Waples, 474. A levy to the amount is prima facie a satisfaction. Davis' use v. Biddle, 500. Queref Is a levy on land a satisfaction, prima facie. Ibid., 500. In slander the defendant cannot on the general issue give in evidence facts to disprove malice, or mitigate the damages, if such facts tend to 587 EVIDENCE. establish the truth of the charge; though he expressly admit the words to be false. Waygsta/f v. Ashton, 503. Lottery tickets are regarded as an article of merchandise and charge- able in a book account for the purposes of evidence. Bailey v. M'Dow- ell, 346. When a note is made payable at a certain place demand at the place must be proved. Bank v. Simmons, 331. FALSE IMPRISONMENT. A false imprisonment does not necessarily include an assault and bat- tery. Murphy v. Countiss, 143. If an officer illegally imprison a person he is liable not only for the time he is in the officer's custody, but for all the time of the imprison- ment. Ibid., 143. FRAUDS, Stat. of. (See Chancery.) HUSBAND AND WIFE. Husband takes the wife's property by force of the marital rite, and not as a purchaser. He therefore takes it subject to all equities. Cole- man v. Waplcs, 196. A wife's chose in action is liable to be attached for the debts of her husband. Johnson v. Green's garnishee, 442. INDENTURES. Indentures of apprenticeship will not be vacated merely because the master is compelled to take the benefit of the insolvent laws. Ex parte Davis, 17. Forms of indentures, by Justices of the Peace, or Trustees of the Poor, 18. INDORSER AND INDORSEE. To charge a party as indorser there must be an endorsement either in person or by procuration. Bank v. Houston, 225. A collateral agreement to be bound as indorser does not make the party liable as an indorser. Ibid., 225. It seems that a promise by indorser, with knowledge of the facts, is a waiver of notice, and also of the demand on the drawer. Bailey v. Seal, 232. A blank endorsement does not absolutely transfer the property in the note. Harticell v. Mac Beth, 363. Either indorsee or indorser may sue upon it. Ibid, 363. The indorser may turn it into a special indorsement, and then he only can sue. Ibid, 363. The payee of a note cannot indorse it over after it has been attached in the drawer's hands. Robinson v. Mitchell & Co., 365. If the maker of a note has funds in the bank on general deposit after the note falls due, the bank is bound to apply them in payment of the note, or the indorser is discharged. M'Doicell v. The Bank, 369. Giving time to the drawer discharges the indorser. Ibid, 369. The indorser of a note under protest is not entitled, even in equity, to be considered a creditor of the drawer, and to come in for a share of his effects tinder a general assignment for the benefit of his creditors. Farmers' Bank v. Gilpin et al., 561. INSOLVENTS. A petitioner cannot have the benefit of the insolvent laws unless he be actually in prison. Seal's case. 347. If the sheriff permit a voluntary escape, he cannot retake the prisoner. Ibid, 347. 75 588 INDEX. INSOLVENTS. A voluntary assignment in contemplation of insolvency and prefer- ring creditors, made in Pennsylvania, will not be sustained by our courts as against a subsequent attachment, by a citizen of this state, of the insolvent's effects here. Mayberry & Co. v. Shissler, 349. If by such assignment a benefit is reserved to the assignee to th prejudice of his creditors, it vitiates the deed. Ibid, 349. A discharge under the insolvent laws of New York prevents the arrest of the debtor's person here, if the debt arose there. Bailey v. Seal't bail, 367. Exonereter entered on a bail piece on it appearing that the principal had been discharged under the insolvent laws of another State. M'Glensy d Wolf v. M'Lear, 466. INTEREST. Seven per cent, interest allowed here on a note drawn in New York. Bailey v. Seal, 232. Interest on damages is discretionary with the jury. Randcl v. Th Canal Co., 234, 449. Quere. Whether interest on arrears of an annuity is not allowable in certain cases. Waples' adm'x. v. "Waples et al,, 392. JUDGMENT. A fi. fa. cannot issue on a judgment before a Justice of the Peace, after the death of defendant, without set. fa. Cooper et ux. v. May, 18. It seems that a judgment may be kept alive by a fi. fa. issued within the year and day, and by regular continuances by vice comes afterwards, as against the original party. Ibid, 18. And on the defendant's death a ft* fa. may issue, if .by relation it can be tested previous to the death. Ibid, 18. But after defendant's death and one term elapsed, no execution can issue without a previous set. fa. Ibid, 18. The act " concerning the entering of judgment bonds " is constitu- tional. Beeson v. Beeson's adm'r., 466. Construction given to that act. Ibid, 466. The word " tenor " as used therein means only substance or import. Ibid, 466. Construction of the constitutional restriction against impairing the ob- ligation of contracts. 'Ibid, 466. The propriety of an ofder of the Orphans' Court directing a sale of lands for the payment of debts, cannot be controverted in any collateral proceeding. Martin's lessee v. Roach, 477, 548. LANDLORD AND TENANT. If a tenant abandon a house, though he leaves some of his goods on the premises, the landlord may enter and take proper care of the premises without being guilty of an eviction. State v. M'Clay et al., 520. It seems that the incoming tenant has a right to fill the ice-house before his term commences, from necessity and the custom. Ibid, 520. The way-going tenant is entitled to the wheat crop by the general custom of our state; not so of the oat crop. Tcmpleman v. Biddle, 522. LEVY. The inventory and appraisement of the goods is the levy. Sipple T. Scotten. 107. What is due diligence in making a levy. State v. Porter, 126. Goods of the deceased remaining in specie are liable to be taken in INDEX. 589 LEVY. execution, unless they have been administered in whole or in part by the payment of debts. Adams' adm'r. v. Burton, 138. A covenant for the forthcoming of goods to be levied on at the suit of A. is broken by causing them to be levied on in the meantime at the suit of the covenantor. Whiteman v. Slack, 144. The lien of a levy under a fi. fa. is limited to the property ascertained by the inventory and appraisement. Bank v. Massey, 186. A leasehold interest in a house and lot is not bound by a return of " levied on goods and on lands as per inquisition annexed," no inven- tory being made specifying the leasehold. Ibid, 186. If a trial be granted after judgment entered on a judgment note it vacates that judgment, unless there has been a levy. Ringgold v. Qrif- fin, 224. And in such case there is no appeal from a subsequent judgment under five dollars and thirty-three cents. Ibid, 224. After a levy to the amount, though returned subject, &c., no fi. fa. for residue can issue until the old levy be disposed of. Davis' use v. Bid- die, 500. Nor can a fi. fa. for residue accompany the venditioni for that pur- pose. Ibid, 500. A levy to the amount is prima facie a satisfaction. Ibid, 500. Quere. Is a levy on land a satisfaction prima facie. Ibid, 500. LIEN. A by-law of a bank giving it a lien on stock for the debts of the holder is valid. M'Dowell v. Bank, 27. How far a vendor has a lien on the land for his purchase money, and against whom. Budd v. Busti et al., 69. The lien of a levy under a fi. fa. is limited to the property ascertained by the inventory and appraisement. Bank v. Massey, 186. Semble: If lands bound by a recognizance in the Orphans' Court be sold under a younger judgment, the money is applicable to the recog- nizance and the lien is discharged. Reading's heirs v. The State, 190. But in an action against one of the recognizers such a defence cannot be set up under a plea of payment. Ibid, 190. If a bailee surrenders the pledge to bailor his lien is gone. Scott v. Heather, 330. Prior liens should be specified in a sheriff's return. Davis' use v. Biddle, 500. Construction of the terms lien and incumbrance in the dower law of 1816. Griffin v. Reece et ux., 508. LOTTERY. Persons undertaking to draw a lottery must comply with all the re- quirements of the grant. Vannini et al. v. Paine et al., 65. Lottery tickets are regarded as an article of merchandize, and charge- able in a book account for the purposes of evidence. Bailey v. M'Dowell, 346. MANDAMUS. The Superior Court cannot send a mandamus to the Orphans' Court to compel the signing of a bill of exceptions. Crawford v. Short et al., 355. PARTITION. A partition may be presumed from a long several holding by heirs of land descended to them from a common ancestor. M'Call v. Reybold. 146. PATENT CASES. Jurisdiction of State Courts in patent cases. Vannini et al. v. Paine et al., 65. 590 TXDEX. PLEADING. Indebitatus assumpsit will not lie by the administrator of tenant for life for an apportionment of the rent: Plaintiff must declare specially. Harris' ex'r. v. Vickers, 6. Trover -will lie against an administrator personally for a conversion by him, though the property came to him with the estate of his intestate. Burton's adm'r. v. Miller et al., 1. If a plea in abatement conclude in bar, the plaintiff may treat it as a plea in bar, and the judgment will be final. Spencer v. Button, 75. Replevin will not lie by the part owner of a chattel for his undivided share. Prichard's adm'r. v. Culver, 76. If the narr. contain a sufficient cause of action with matter not action- able, it will be intended after verdict that damages were given only for the actionable part; and this though there be but one count. Ibid, 76. In an action on a guardian bond the plaintiff must show a sufficient breach in his replication or other pleading, or by suggestion on the record. Bishop v. Wilds' adm'r., 87. The words "value received" is sufficient statement of a consideration in a promise to pay the debt of another. Brooks v. Morgan, 123. Assumpsit will lie for a fee due to counsel. Stevens v. Monges, 127. Infancy must be specially replied to a plea of the statute of limita- tions. State v. Stockley's adm'r., 134. To declare in a different form of action from that in which the bail is taken releases/ the bail. Waples v. Derrickson, 134. The plea of non cepit in replevin admits the property. Eaves' adm'r. v. King, 141. " We certify that we are bound to pay " is a promise to pay. Milner v. Bainton & Bancroft, 144. In covenant the breach may be assigned in the words of the covenant where such general assignment amounts to a breach. Randel v. The Ches. d Del. Canal Co., 151. Less particularity is required where the matter rests in the knowledge of the other party. Ibid, 151. Enough must be placed on the record to show that the covenant 18 broken, and that the plaintiff has a cause of action. Ibid, 151. In debt on a bond, or sci. fa. on a recognizance, every thing in avoid- ance or discharge of the bond or recognizance must be specially pleaded. Reading's heirs v. The State, 190. The object of pleading is notice to the other side as well as the sim- plifying the issues. Ibid, 190, 216. Matters which amount to the general issue cannot be specially pleaded. Ibid, 190. A private act of assembly must be pleaded and proved. Cochran v. Evans' adm., 200. Pleadings are amendable, in the discretion of the court, at any time before judgment. State use of Godwin v. Collins et al, 216. The distinction between pleadings in paper and of record not applica- ble to our practice. Ibid, 216. To recover on the money counts the plaintiff must show that money has been actually received by defendant to his use. Bank v. Houston, 225. Nul tiel record is not a good plea in an action on the official bond of a public officer, though such bond is directed by law to be recorded. State v. Houston, 230. Quere? Whether non est factum can be pleaded to a public bond with- out affidavit denying the execution. Ibid, 230. So much only of an instrument need be set out as entitles the plaintiff to his action; but he must set it out truly. Ibid, 230. A contract may be declared on by setting out a counterpart executed by only one of the parties. Randel v. The Ches. and Del. Canal Co., 234. INDEX. 591 PLEADING. In a plea of confession and avoidance the plea admits all the material and traversable facts averred in the breach; they need not therefore be proved: but it does not admit the damage, which must be proved. Ibid, 234. Judgment by default, or on demurrer, admits the cause of action, and establishes the plaintiff's- right to recover: and where the contract de- clared on is for a sum certain, as in debt, and the declaration either ascertains the amount or sets out an instrument from which the amount can be certainly ascertained by calculation, the judgment is also conclu- sive as to the amount. Ibid, 234. But where the matter sued for sounds in damages, or is in its nature uncertain, such a judgment establishes no amount of damages, but it fixes the right to recover, and the cause of action need not afterwards be proved. Ibid, 234. Variance in the date of an instrument declared on is fatal; the date being matter of description. Bank v. Simmons, 331. Matter amounting to the general issue cannot be pleaded with the general issue. Tatlow v. Jaquett, 333. The defence of purchase lor a valuable consideration without notice may be made by answer as well as plea. Ridgeway and Newbold v. Newbold, 385. But the answer must contain all the requisites of a plea. Ibid., 385. Deed pleaded with profert. Oyer prayed and granted. Replication denying performance of covenants, without setting out the deed: ad- judged bad for this cause. Polk v. Bull's adm., 433. The prayer and grant of oyer do not make the deed a part of the record. It is obligatory on the party who would take advantage of it, to set it out. Ibid, 433. If plaintiff omit to aver performance of a condition precedent in his narr. the defendant should set the deed out on oyer and demur. Ibid, 433. Assumpsit is a very liberal form of action. Guthrie v. Hyatt, 446. In ejectment the demise must always be laid after title accrued. Crawford's lessee v. Green, 464. In an action on the case, though for a tort, the defendant may justify under the general issue. Rust v. Flowers, 475. In slander the defendant cannot on the general issue give in evidence facts to disprove malice, or mitigate the damages, if such facts tend to establish the truth of the charge, though he expressly admit the words to be false. Waggstaff v. Ashton, 503. A charge of perjury is actionable without a colloquium, shewing that it was in the course of a judicial proceeding. Ibid, 503. In scire facias on a judgment against two defendants, one of them cannot plead that he is surety and discharged by agreement giving time to his principal. Farmers Bank v. Horsey et al., 514. Oyer of the bond is not demandable after judgment. Ibid, 514. At law all the obligors in a bond are principals. Ibid, 514. A check deposited in the hands of a stake-holder cannot be recovered in an action for money had and received; he is liable for the deposit only as received. Porter v. Sawyer, 517. PRACTICE. A deposition to a leading interrogatory will not be suppressed at the trial if full opportunity be given to object to it before. Goslin v. Can- non, 3. A fi. fa. cannot issue on a judgment before a Justice of the Peace after the death of the defendant without a sci. fa. Cooper and wife v. May, 18. It seems that a judgment may be kept alive by a fi. fa. issued within 592 INDEX. PRACTICE. the year and day, and by regular continuances by vice comes afterwards, a* against the original party. Ibid, 18. And on the defendant's death a fi. fa. may issue if by relation it can be tested previous to the death. Ibid, 18. But after defendant's death and one term elapsed no execution can issue without a previous set. fa. Ibid, 18, 513. Nor can an alias issue after a fi. fa. vice comes where several terms have intervened. Bank v. Reynolds, 513. The court will not reserve a clear point for argument before all the judges, however important the point may be in the particular case. Ran' del v. Wright, 34. The court will not permit a party to demur after issue joined and the jury sworn. Bonwill v. Dickson, 105. Affirmative pleadings do not always give the right to conclude; this depends on the onus probandi. Ibid, 105. A probate may be produced in any stage of the cause. Beeson's ea'r. v. Beeson's admr. t 106. The inventory and appraisement of goods is the levy. Sipple y. Scot~ ten, 107. Notices of sale should specify the most prominent articles. Ibid, 107. An unexpired term ought to be specified. Ibid, 107. A witness to a deed who has proved it in court may be impeached, though he be not a witness in the cause. Vandyke's lessee v. Thomp- son et al., 109. A party to a bill may write over a blank indorsement any promise consistent with the transaction. Erwin v. Lamborn, 125. In case for malicious prosecution plaintiff must prove the prosecution, acquittal, want of probable cause and malice of defendant. Rhodes v. Silvers, 127. Facts admitted on one set. fa. cannot be controverted on an alias sci. fa. Earle's use v. Millen's admr., 139. In debt on an administration bond plaintiff must show assets. State v. Becldey, 142. A statement filed with the register that there are no goods, is equiva- lent to filing an inventory. Ibid, 142. In trespass against road commissioners for laying out a road different from the order, the deviation may be proved without laying down pre- tensions. Huey v. Hendrixen et al., 145. After argument on general demurrer, and the opinion of the court de- livered, leave to withdraw the demurrer and plead over refused. Ran- del v. The Ches. and Del. Canal Co., 151, 433. Judgments by confession are not within the statutes 8th and 9th William, requiring a suggestion of breaches. Bauduy v. Bradun, 182. Execution may issue on such a judgment entered on a bond with a collateral condition. Ibid, 182. Two returns of nihil on two consecutive sci. fa.'s are equal to a scire fed. Ibid, 182. After the second return plaintiff has a day in court to sign judgment, and he may do it within the year and day. Ibid, 182. Queref If the sheriff neglect to return an inventory and appraisement, can plaintiff have further execution process against the defendant? Bank v. Massey, 186. If a material fact stated in a bill in chancery be neither admiHed nor denied in the answer, the complainant must prove it at the trial. Cochran v. Evans' admr., 200. What is admitted need not be proved; but what is not denied is not therefore admitted. Ibid, 200. INDEX. 593 PRACTICE. After depositions are published and read further testimony cannot be taken. Woodlin et al. v. Hynsons, 224. If the competency of a deposing witness is to be attacked, exceptions should be filed to notify the other side. Ibid, 224. A party calling for papers from the other side makes them evidence if he inspect them, 234. Depositions taken on leading interrogatories will be suppressed at the trial if exceptions have been filed, and the party not taken by surprise. Randel v. The Ches. & Del. Canal Co., 234. Service of interrogatories by copy left at the office of the attorney of the opposite party, is sufficient notice of the taking out of a commis- sion. Ibid, 234. A witness allowed, under peculiar circumstances, to write his answers to interrogatories, and the deposition admitted. Ibid, 234. The protest of an inland bill is not proved by the notarial seal, but tfie notary must be called. Ibid, 234. Inquisition of damages, form of Ibid, 321. Indentures of Apprentices by Justices, &c., forms of 18. Decree of divorce a vinculis matrimonii, 137, 516. Lands cannot be inquired on before a sale of the goods. Wilson's adm'r. v. Hukill, 347. The inquisition must be objected to at the first term. Ibid, 347. A lunatic may defend by next friend without having a commission. Allen & Co. v. Babcock, 348. Lunacy may be set up against a note at least as between the original parties or against the first indorser. Ibid, 348. An appeal from the Orphans' Court cannot be heard without a state- ment of the points decided. Crawford et al. v. Short et al., 355. It is the duty of the party to apply for such statement. Ibid, 355. Notice to counsel of the meeting of arbitrators held sufficient, under circumstances. Cazier v. Blackstock, 362. As a general rule notice must be given to the party. Ibid, 362, 497. Under peculiar circumstances a court of equity will assess damages, or send an issue to have them assessed. M'Dowell v. The Bank, 369. Notice of the execution of a commission to lay off dower under a decree of the court need not be given to the tenant who is a party to the suit. Ridgway < Nncbold v. Newbold. 385. The defence of purchase for valuable consideration without notice may be made by answer as well as by plea. Ibid, 385. On over prayed and granted the defendant is entitled to a copy of the deed, and the court will stay proceedings until it is furnished. Polk v. Bull's adm'r., 433. If plaintiff in an execution order a sale before the time allowed by law", he, as well as the constable, is a trespasser. Minus v. Stant et al., 445. Judgment in replevin is for the sum found due as debt, and the value of the property destrained need not be found. Donely v. M'Grann et al,, 453. Testimony will not be admitted in reply which might have been ad- duced in chief. Chandler ct al. v. Ferris, 454. The party which has the burthen of proof has the opening and con- clusion. Ibid, 454. On an issue of devisavit vel non the caveators have the onus. Ibid, 454. In an action on the case though for a tort, the defendant may justify under the general issue. Rust v. Flowers, 475. The propriety of an order of the Orphan's Court directing a sale of lands for the payment of debts cannot be controverted in any collateral proceeding. Martin's lessee v. Roach, 477, 548. 594 INDEX. PRACTICE. Under the old act of assembly the record of a deed was by the settled practice of the courts permitted to be read in evidence, though such deed had not been recorded within a year from its execution. Ibid, 477, 548. After a levy to the amount, though returned subject, no fi. fa. for residue can is'sue until the old levy be disposed of. Davis' use v. Bid- die, 500. Nor can a fi. fa. for residue accompany the venditioni for that pur- pose. Ibid, 500. Quere. After what lapse of time can execution begun be continued without sci. fa.? Ibid, 500. A bill may be dismissed, generally^ with costs, after a decree over- ruling a demurrer to it. Farmers' Bank v. Qilpin et al., 561. A bill may be dismissed generally as to all the defendants, and with costs, after a pro confesso decree as to some of the defendants. Ibid, 561. PRINCIPAL AND SURETY. Equity will distinguish between principal and surety, though the nature of the security be such as to make them all principals at law. M'Dotoell v. Bank, 369. Surety paying the debt of his principal stands in the place of the creditor, and is entitled to an assignment of all securities, original and collateral. Ibid, 369. If the maker of a note has funds in bank on general deposit after the note falls due, the bank is bound to apply them in payment of the note, or the indorser is discharged. Ibid, 369. Giving time to the drawer discharges the indorser. Ibid, 369. At law all the obligors in a bond are principals, the defence therefore of a discharge of the surety by the acts of the creditor towards the prin- cipal cannot be set up at law. Farmers' Bank v. Horsey et al., 514. PROBATE. A probate must disclose all the credits within the plaintiff's knowledge. Lolley v. Needham's ex'r., 86. It is not sufficient to make a general reference to the defendant's books for credits. Ibid, 86. A probate may be produced in any stage of the cause. Beeson's ex'r. v. Beeson's adm'r., 106. PROMISSORY NOTE. The words " or order " or words tantamount, are necessary to make a note negociable. Fernon v. Farmer's admr., 32. A parol promise revives a debt due by promissory note for six years. Duncan v. Newlin, 109. When the guarantor of a note is entitled to notice of his principal's default. Brooks v. Morgan, 123-5. Insolvency of the principal excuses the notice. Erioin v. Lamborn, 125. To charge a party as indorser there must be an actual endorsement in person or by procuration. Bank v. Houston, 225. A collateral agreement to be bound as indorser will not make the party liable as an indorser. Ibid, 225. If the holder of a note take a higher security from the drawer it dis- charges the indorser. Bank v. Simmons, 331. Giving time to the drawer discharges the indorser. M'Dowell v. Bank, 369. Lunacy may be set up against a note at least as between the original parties or the first indorsee. Allen & Co. v. Babcock, 348. The want or failure of consideration may be given in evidence as be- tween the original parties to the note. Hartwell v. Mac Beth, 363. INDEX. 595 PROMISSORY NOTE. The payee of a note cannot indorse it over after it has been attached in the drawer's hands. Robinson v. Mitchell and Quinn, 365. REFERENCE. A prospective agreement to refer all matters of dispute which may hereafter arise will not oust the jurisdiction of the courts. Rondel \. The Ches. and Del. Canal Co., 234. And even in case of a submission of existing disputes either party may revoke the submission, though he would be liable on the agreement to refer. Ibid, 234. Referees may try the grade of a debt against a decedent's estate and report the order of preference. Elliott v. Brindley et al., 364. REGISTER OF WILLS. Queref Whether the register of wills is a judge, and as such author- ized to administer oaths generally? Worknot v. Hillen's admr., 139. REPLEVIN. Replevin will not lie by the part owner of a chattel for his undivided share. Prichard's adm. v. Culver, 76. Replevin will not lie at the suit of a master to recover an apprentice. Morris v. Cannon, 220. It seems that replevin will not lie for a freeman. Ibid, 220. RELEASE. A release of any part of a rent charge is a release of the whole. Bird v. Stilley and Rudolph, 339. SCIENTER. In an action on the ease for recommending an insolvent person as fit to be trusted, both a knowledge of the insolvency and a fraudulent intent must be proved. Fooks v. Waples, 131. SLAVES. The issue of manumitted slaves born after the manumission, but before the period of its taking full effect, were slaves before the act of 1810. Jones v. Woottin, 77. The issue follows the condition of the mother. Ibid, 77. STATE, The question of the jurisdiction of this state over the bay and River Delaware considered. Note to Emory v. Collings, 325. STATUTE OF LIMITATIONS. Construction of the term " settlement under the hand of the party " in the act of 1793. Booth's ex'r. v. Stockton's ex'r., 51, 209. What mutual and running accounts are not barred. Ibid, 51. A law enlarging the time of brinsine suits does not impair the obli- gation of the contract. Bishop v. Wilds' admr., 87. Queref Would a law diminishing the time? Ibid, 87. A parol promise revives a debt due by promissory note for six years. Duncan v. Xciclin, 109. A promise by an administrator will revive a debt barred by the statute. Benninqton v. Parkin's admr., 128, 209. Infancy must be specially replied to a plea of the statute. State v. Ktockley's admr., 134. 096 INDEX. STATUTE OF LIMITATIONS. The acknowledgment of a debt barred by limitation revives the old debt and does not create a new obligation. Newlin v. Duncan, 204. Payment towards or any recognition of a debt prevents the operation of the statute. Ibid, 204. The principle of that act is a presumption of payment which a slight acknowledgment may rebut. Ibid, 204. Eleven years can never raise a presumption of payment from lapse of time. Green v. Lockwood's admr., 331. STOCK. A by-law of a book giving it a lien on stock for the debts of the holder is valid. M'Dotccll v. Bank, 27. A purchaser of stock need only look to the title of his vendor on the books of the company, and is not affected by previous irregularity in the transfers. Turnpike Co. v. Bush, 44. SLANDER. One may justify the repetition of slanderous, words if he merely re- peat what he has heard, and give his author at the time. Tatlow v. Jaquett, 333. If other slanders be proved to shew malice, the defendant may justify without pleading, as to them. Ibid, 333. Words are not actionable in themselves iinless they impute a legal crime. Stewart v. Cleaver, 337. A charge of perjury is actionable without a colloquium showing that it was in a judicial proceeding. Waggstaff v. Ahston, 503. In slander the defendant cannot on the general issue give evidence of facts tending to prove the truth of the charge. Ibid, 503- TENANT. Tenant cannot dispute his landlord's title. Reed v. Todd, 138. It is for the court to say when a tenancy is proved. Ibid, 138. TOLLS. Tolls on the Wilmington and Philadelphia Turnpike cannot be com- muted for a part only of the road. Rambo v. Turnpike Co., 116. The tolls of the Chesapeake and Delaware Canal are liable to attach- ment in the hands of the masters of vessels passing through the canal. Randel v. Shoemaker, garnishee, 566. TRESPASS. Injuries to cattle, though trespassing, are actionable. Richardson v. Carr, 142. Justification for entry upon lands iinder an order of court must strictly pursue the order. Huey v. Hendrixen et al., 145. One tenant in common cannot maintain trespass against his co-tenant without, &c. M'Call v. Reybold, 146. In trespass the locus in quo must be proved to be within the hundred laid. Emory v. Callings, 325. Actual possession is necessary to maintain trespass. Clark v. Hill, 335. An action of trespass before a justice does not abate by the defendant's death. Washington's ex'r. v. Richardson, 338. TROVER. Trover will lie against an administrator personally for a conversion by him, though the property came to him with the estate of the intestate. Burton's admr. v. Miller et al., 7. INDEX. 597 TROVER. Queref Can one tenant in common of a vessel maintain trover against his co-tenant without, &c. Egbers v. Logan, 342. TRUST. Can trust money be followed into land upon evidence, as against judg- ment creditors? Roberts et al. v. Broom, 57. When the conveyance is to the trustee without noticing the trust, the application of the trust fund must be clearly proved. Ibid, 57. VARIANCE. Proof of facts amounting to a discharge in law does not support a plea of payment. State v. Reading's terrc-tenants, 23, 331. Evidence of a bond to Sarah Eliza I\. will not support the averment of a bond to Eliza R. Ibid, 23. Variance between a contract alleged and the one offered is fatal, whether the action be on the contract or in tort arising out of it. Randel v. Wright, 34. Distinction between the allegation of an instrument by its tenor and in substance. Ibid, 34. Variance in the date of an instrument declared on is fatal ; the date being matter of substance. Bank v. Simmons, 331. In an action of waste plaintiff declared on a tenancy in common and proved a co-parcenary, held fatal. Waples et al. v. Waples, 474. WAGER. In a bet on a horse race neither party can recover without a decision of the judges. Jacobs v. Walton, 496. Before a decision either party may recover back his stakes. Ibid, 496. A special demand must be made of the stake-holder. Ibid, 496. But where he paid over the stakes without a decision by the judges and against notice, held that a demand was unnecessary. Ibid, 496. Quere. Can a bet on a race in another State be recovered on? Ibid, 496. A bet on the nomination election of a candidate is void. Porter v. Sawyer, 517. WAIVER. The power to avoid a voidable contract may be waived. Randel v. The Ches. < Del. Canal Co., 233. Any discretionary power may be waived. Ibid, 233. And thoush the "power be derived by deed it may be waived by parol. Ibid. 233. The party having the power to establish a forfeiture or avoid a con- tract must do it within a reasonable time, and in a lawful manner, or it is a waiver. Ibid. 234. Any act legally inconsistent with the exercise of the power will amount to a waiver. Ibid, 234. WARRANTY. In an action on the warranty of a horse, the warranty must be proved to have been made to defendant. Sipple v. Breen, 16. In an action on the warranty of a vessel at the suit of the owner, the master is not a competent witness to prove that the vessel was lost from nnsoundness. Neivbold d Craven v. Wilkins, 43. The lineal warranty of tenant in tail in possession descending with as- sets of equal value to the heir in tail bars the heir from claiming the lands warranted. Ford's lessee v. Hays < Sntton, 48. 598 INDEX. WARRANTY. When the guarantor of a note is entitled to notice of his principal's default. Brooks v. Morgan, 123. Insolvency of the principal excuses notice. Erwin v. Lamborn, 125. WAY. Prescriptive right of way may be presumed from twenty years enjoy- ment. Muggins v. M'Gregor, 447. Right of way from necessity, when. Ibid, 447. WILL. What degree of influence will vitiate a will. Chandler et al. v. Ferris, 454. If in drawing out a will from instructions they be materially departed from, proof must be made that the testator was informed of the altera- tion. Ibid, 454. Sound and disposing mind and memory. What is it? Ibid, 454. WITNESS. In an action on the warranty of a vessel at the suit of the owner, the master is not a competent witness to prove that the vessel was lost through unsoundness and not from negligence. Newbold d Craven v. Wilkins, 43. A witness to a deed who has proved it in court may be impeached, though he be not a witness in the cause. Vandyke's lessee v. Thompson, 109. The cashier of a bank is a competent witness to prove the amount of a deposit when. Johnson v. Bank, 117. When an attorney is privileged from giving testimony. Ibid, 117. Surety in an administration bond is a witness where there is not a suggestion of devastavit. Bennington v. Parkin's adm'r., 128. An attorney not competent to contradict his own entry. Waples v. Clarke's adm'r., 135. A director of a company, not being a stockholder nor a party of record, is a competent witness for the company. Randcl v. Canal Company, 234. Deposition written out by the witness himself admitted under peculiar circumstances. Ibid, 234. The oath of one witness with corroborating circumstances, will out- weigh an answer on oath. M'Dowell v. Bank, 369. Quere. Will not the oath of one witness unsupported establish a fact against the answer of a corporation. Ibid, 369. A party defendant in chancery may be examined as a witness, if no decree be sought against him. Ridgeway rf Newbold v. Newbold, 385. A witness having an equal interest in either event is competent. Bailey v. Capelle, 449. Consignor competent to prove property in consignee. Ibid, 449. The obligor in a bond given on an usurious contract is a competent witness to prove the usury in an action qui tarn. Banner qui tarn v. Oregg, 523. UC SOUTHERN REGIONAL LIBRARY FACILITY A 001 425 605 1