THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW FACTTT.TY REPORTS CASES ADJUDGED IN THE SUPREME COURT PENNSYLVANIA. BY FREDERICK WATTS AND HENRY J. SERGEANT. VOL. I. CONTAINING THE CASES DECIDED IN MAY TERM AND PART OP JULY TERM 1841. PHILADELPHIA: JAMES KAY, JUN. AND BROTHER, 122 CHESTNUT STREET. PITTSBURGH: C. H. KAY & CO. 1842. Entered, according to the act of Congress, in the year 1842, by JAMES KAY, JUN. AND BROTHER, in the office of the clerk of the district court of the United States in and for the eastern district of Pennsylvania. Printed and Bound by JAMES KAY, JUN. & BROTHER, 122 Chestnut Street. JUDGES SUPREME COURT OF PENNSYLVANIA, DURING THE PERIOD OF THESE REPORTS. JOHN BANNISTER GIBSON, ESQ., Chief Justice. MOLTON C. ROGERS, ESQ., CHARLES HUSTON, ESQ., JOHN KENNEDY, ESQ., THOMAS SERGEANT, ESQ., OVID F. JOHNSON, ESQ., Attorney-General. (3) TABLE OF CASES. Addams v. Seitzinger 243 Allen's Estate 383 Anderson v. Levan 334 Ayres, Richards v 485 Baird, Elizabeth, Case of 288 Baldwin, Ellis v 253 Bank of Pennsylvania v. Reed 101 Barnitz v. Smith 142 Bayard v. Shunk 92 Beale, Juniata Bank v 227 Beelin, Creigh v 83 Beltzhoover v. Waltman 416 Bitzer v. Shunk 340 Bixler, Rice v 445 Bombaugh v. Robinson 159 Boone, Porter v 251 Bratton v. Mitchell 310 Bream v. Spangler 378 Bryson v. Myers 420 Carlisle, Hockenbury v 282 Cash v. Tozer 519 Church, Davis v 240 Church, Dickinson College v. 462 Clarke, Wilson v 554 Clauser's Estate 208 Clyde, Fisher v 544 Cochran, Finney v 112 Commonwealth v. Laub 261 Coover, Shouffler v 400 Craig v. Dale 509 Creigh v. Beelin 83 Cronister v. Cronister 442 I. A* Dale, Craig v. -. 509 Davis v. Church 240 Devinney v. Reynolds 328 Dickinson College v. Church . 462 Dougherty, Taylor v 324 Eberman v. Reitzel 181 Ege v. Kauffman 120 Egle, Snevily v 480 Ekel, Snevily v 203 Ellis v. Baldwin 253 Finney v. Cochran 112 Fisher v. Clyde 544 Fisher, Hurst v 438 Fisher, Seitzinger v 293 Fitzimmons, Long v 530 Flickinger, Okison v 257 Foulk v. M'Farlane 297 Foust v. Ross 501 Fox v. Heffner 372 Funstone, Strawbridge v 517 Gable, Rutter v 108 Gamber v. Wolaver 60 Gibbs, Newell v 496 Gordon v. Hutchinson 285 Graffius v. Tottenham 488 Gross, Stroop v 139 Hadley v. Snevily 477 Harris v. Ligget 301 Harris, Van Swearingen v. . . . 356 Haverstock v. Sarbach 390 (5) M TABLE OF CASES. Heffher, Fox v 372 Hcnman, Owcu v 548 Hcss,Strohv 147 Hibler v. Hoag 552 Hiester v. Laird 245 Hoag, Hibler v 552 Hockcnbury v. Carlisle 282 Hoffman v. Kissinger 277 Homman, Ingle v 414 Hopper, Thomson v 467 Houtz, Zeigler v 533 Hugg, Huling v 418 Ruling v. Hugg 418 Hurst v. Fisher 438 Hutchinson, Gordon v 285 Ickes v. Smith 139 Ingle v. Homman 414 Johnston, Presbyterian Congre- gation v 9 Johnston, Snevily v 307 Jones, Lehman v 126 Jones v. Patterson 321 Jones, Smull v 128 Juniata Bank v. Beale 227 Kauffman, Ege v 120 Kennedy, Loy v 396 King v. King 205 Kissinger, Hoffman v 277 Laird, Hiester v 245 Lancaster County, Parker v. . 460 Laub, Commonwealth v 261 Law v. Patterson 184 Layng v. Stewart 222 Lehman v. Jones 126 Leinaweaver v. Stoever 160 Leonard v. Leonard 342 Levan, Anderson v 334 Lewis, Overdeer v 90 Lewistown, Borough of, Wil- son v 428 Libhart v. Wood 265 Ligget, Harris v 301 Lindsay, M'Clelland v 360 Livezey, Withers v 433 Long v. Fitzimmons 530 Loy v. Kennedy 396 Lynch, O'Donnell v 283 M'Cabe v. Morehead 51 a M'Cleary's Appeal 299 M'Clelland v. Lindsay 360 M'Farlane, Foulk v 297 Metzgar, Stover v 269 Mitchell, Bratton v 310 Morehead, M'Cabe v 513 Myers, Bryson v 420 Nathans, Pott v 155 Newell v. Gibbs 496 Nieman v. Ward 68 O'Donnell v. Lynch 283 Okison v. Flickinger 257 Okison v. Patterson 395 Overdeer v. Lewis 90 Owen v. Henman 548 Parker v. Lancaster County . . 460 Patterson's Estate 291 Patterson, Jones v 321 Patterson, Law v 184 Patterson, Okison v 395 Porter v. Boone 251 Pott v. Nathans 155 Presbyterian Congregation v. Johnston 9 Reed, Bank of Pennsylvania v. 101 Reed v. Reed 235 Reitzel, Eberman v 181 Reynolds, Devinney v 328 Rice v. Bixler 445 Richards v. Ayres 485 Robinson, Bombaugh v. ..... 159 Ross, Foust v 501 Rutter v. Gable.. . 10$ TABLE OF CASES. vn Sarbach, Haverstock v 390 Seitzinger, Addams v 243 Seitzinger v. Fisher 293 Sherk, Stine v 195 Shissler, Wampler v 365 Shoemaker, Strauch v 166 Shouffler v. Coover 400 Shunk, Bayard v 92 Shunk, Bitzer v 340 Small, York County v 315 Smith, Barnitz v 142 Smith, Ickes v 139 Smull v. Jones 128 Snevily v. Egle 480 Snevily v. Ekel 203 Snevily, Hadley v 477 Snevily v. Johnston 307 Spangler, Bream v 378 Stewart, Layng v 222 Stine v. Sherk 195 Stoever, Leina weaver v 160 Stover v. Metzgar 269 Strauch v. Shoemaker 166 Strawbridge v. Funstone 517 Strein v. Zeigler 259 Strickhouser, Wolfram v 379 Stroh v. Hess 147 Stroh v. Uhrich 57 Stroop v. Gross 139 Taylor v. Dougherty 324 Thomson v. Hopper 467 Tottenham, Graffius v 488 Tozer, Cash v 519 Uhrich, Stroh v 57 Union Canal Company, Zim- merman v 346 Van Swearingen v. Harris . . . 356 Waltman, Beltzhoover v 416 Wampler v. Shissler 365 Ward, Nieman v 68 Wilson v. The Borough of Lew- istown 428 Wilson v. Clarke 554 Withers v. Livezey 433 Wolaver, Gamber v 60 Wolfram v. Strickhouser .... 379 Wood, Libhart v 265 York County v. Small 315 Zeigler v. Houtz 533 Zeigler, Strein v 259 Zimmerman v. The Union Ca- nal Company 346 CASES IN THE SUPREME COURT OF PENNSYLVANIA, MIDDLE DISTRICT, MAY TERM 1841. Presbyterian Congregation against Johnston. It is not an implied condition of the grant in trust for the unincorporated con- gregation by the style of " The Society of English Presbyterians and their Suc- cessors in and near the Borough of York," that it shall remain connected with any particular church judicatory : therefore, Ruled, That when the General Assembly of the Presbyterian Church in the United States was divided into two distinct fragments, each declaring itself to be the true General Assembly, the persons composing the majority of this congregation did not forfeit their interests in the trust by refusing to acknowledge the authority of either of the conflicting judicatories. An equitable right to the possession of land is sufficient to enable a plaintiff to recover in ejectment. A cestui que trust entitled to the enjoyment of the possession of land, may maintain an ejectment to recover it in his own name, either against the trustee or a stranger. ERROR to the special court of York county. This was an action of ejectment by the Trustees of the English Presbyterian Congregation of the Borough of York, against James Johnston, Samuel Small, Philip A. Small, Jacob Emmett, John Evans, William R. Morris, Rev. Benjamin I. Wallace, and Mrs. Sarah Franklin, to recover a church and two acres of land in the borough of York. i. 2 W 10 SUPREME COURT [Harrisburg [Presbyterian Congregation v. Johnston.] The plaintiffs gave in evidence the following deed, and charter of incorporation: This indenture made the twenty-ninth day of September in the year of our Lord one thousand seven hundred and eighty-five, between the honourable John Penn, Junior and John Penn of the city of Philadelphia in the commonwealth of Pennsylvania, Esquires, late proprietaries of Pennsylvania of the one part, and George Irwin, merchant, William Scott, Esquire, and Archibald M'Lean, Esquire, all of the town of York in the county of York in Pennsylvania, of the other part : Whereas there is a lot or piece of ground situate on the north side of High street in the town of York aforesaid, beginning at a corner of the said High street and Queen street, and from thence extending along the easterly side of the said Queen street to a corner of a certain twenty foot alley, thence along the southerly side of the said alley to the line of land late of Bartholomew Maul, now in the tenure of John Hay, Esquire, thence along the said line southerly to the said High street, thence along the northerly side of the said High street to the place of beginning. And whereas the said George Irwin, William Scott and Archibald M'Lean, on behalf of themselves and other members of the reli- gious society of the English Presbyterians in and near the said town of York in the said county of York, represented to the said John Penn, Junior and John Penn that they would be pleased to grant to the said society in fee simple for the uses hereinafter mentioned the above said lot or piece of ground as a site for a house of religious worship and a burial place for the use of the said religious society of the said English Presbyterians and their successors in and near the said town of York. Now this indenture witnesseth, that the said John Penn, Junior and John Penn, favouring the above request and as well for and in con- sideration of their inclination to promote piety and religion as also for and in consideration of the sum of five shillings, lawful money of Pennsylvania unto them at or immediately before the sealing and delivery hereof by the said George Irwin, William Scott and Archibald M'Lean well and truly paid, the receipt whereof is hereby acknowledged, have given, granted, bargained, sold, released and confirmed, and by these presents do give, grant, bargain, sell, release and confirm unto the said George Irwin, William Scott and Archibald M'Lean and to their heirs and assigns, all that the above said lot or piece of ground, situate in the town of York in the county of York in the commonwealth of Pennsylvania aforesaid, situate, bounded and being as tho same above is described, together with all and singular the ways, waters, water courses, rights, liberties, privileges, here- ditaments and appurtenances whatsoever thereunto belonging, and Jhe reversions and remainders, rents, issues and profits May 1841.] OF PENNSYLVANIA. 11 [Presbyterian Congregation v. Johnston.] thereof, and all the estate, right, title, interest, property, claim and demand whatsoever, of them the said John Penn, Junior and John Penn and their heirs respectively of, in, and to the hereby granted or mentioned to be granted premises, to have and to hold the said described lot or piece of ground, hereditaments and pre- mises hereby granted, or mentioned to be granted, with the appur- tenances, unto the said George Irwin, William Scott and Archibald M'Lean, their heirs and assigns for ever. In trust nevertheless for and as a site for a house of religious worship and a burial place for the use of the said religious society of English Pres- byterians and their successors, in and near the said town of York in the county of York, and in confidence that they the said George Irwin, William Scott and Archibald M'Lean, and the sur- vivor of them, their and his heirs and assigns, shall and will per- mit and suffer the said lot or piece of ground and premises, and the buildings thereon hereafter to be erected, to be from time to time and at all times hereafter, for ever at the disposal and under the care, regulation and management of the said religious society and their successors in and near the town of York aforesaid, and to and for no other use, intent or purpose whatsoever. In wit- ness whereof, the said parties have interchangeably set their hands and seals hereunto. Dated the day and year first above written. JOHN PENN, JUN. [SEAL]. JOHN PENN. [SEAL]. The Congregation of the English Presbyterian Church in the borough of York in the county of York and state of Pennsyl- vania, citizens Of the said state, boing desirous of being incorpo- rated, and enabled as a body corporate and politic to receive and hold such charitable donations and bequests as may from time to time be made to the society, and vested with such powers and privileges as are enjoyed by the religious societies which are incorporated in the state of Pennsylvania, have agreed on the following articles and provisions, as the terms of their in- corporation, that is to say, Article 1. That the Reverend Robert Cathcart, William Harris, John Forsyth, John Greer, William Barber, James Johnson, and Penrose Robinson, and their successors, duly elected and ap- pointed, as herein afterwards provided, be made and constituted a corporation, and body politic in law and in fact, to have con- tinuance for ever hereafter, by the name, style and title of " The Trustees of the English Presbyterian Congregation in the Bo- rough of York." Article 2. That the said corporation and their successors shall for ever hereafter be capable in law, to take, receive, hold and enjoy all lands, tenements, rents, annuities, hereditaments, moneys, 12 SUPREME COURT \Han-isburg [Presbyterian Congregation v. Johnston.] and other estates, property and effects, which shall be given, granted, devised, bequeathed, sold or conveyed to them. Article 3. That the rents, profits, and interest of the real and personal estate, to be acquired, held and enjoyed by the said con- gregation, shall be from time to time applied by the said trustees and their successors, for the maintenance and support of the gos- pel ministry in the said congregation, for repairing and maintain- ing their house of public worship, lots of ground, burial ground, and such charitable and pious uses, as shall be thought just and right by the trustees of the corporation for the time being. Article 4. That the trustees aforesaid, or their successors, may at any time or times hereafter sell and dispose of any real or personal estate of the said corporation, provided that it will be necessary, before any real estate shall be sold, to obtain the con- sent of a majority of the contributing members of the congrega- tion, or of a majority of so many of them as shall attend a meeting to be held for the purpose, after due notice given, and provided also that the trustees or their successors, shall not sell, grant, or otherwise part with any part of the real or personal estate, vested in the corporation, or in any wise charge or incumber the same, except for the uses or purposes aforesaid. Article 5. The trustees shall have power to appoint a treasurer and secretary, and they shall meet, either on their own adjourn- ments, or on notice "from the pulpit, or on regular notice to every trustee, and they shall have power to elect from among themselves a president, who, together with the treasurer and secretary, shall be removeable at pleasure. Article 6. That the trustees, or a majority of them, met as herein boforo directed, shall be authorized and empowered to make rules, by-laws and ordinances, and to do every thing need- ful, for the management of the secular affairs of the said congre- gation, provided such by-laws, rules and ordinances shall not be repugnant to the constitution and laws of the United States, nor of the state of Pennsylvania, and that all their by-laws, rules and ordinances, and other proceedings, shall be kept and entered in a book, which shall at all times be open to the inspection of the members of the congregation. Article 7. That the said corporation shall have power, (they and their successors,) to make and use one common seal, with such device and inscription as they shall think proper, and the same to break, alter, and renew at their pleasure. Article 8. That the said corporation, by the name, style and title aforesaid, shall be able and capable in law, to sue and be sued, plead and be impleaded, in any court, or before any tri- bunal, having competent jurisdiction of the cause of action, in all manner of suits, demands, causes or complaints, as fully and effectually, as any other person or persons, bodies politic or cor- porate, within the commonwealth of Pennsylvania, may or can do. May 1841.] OF PENNSYLVANIA. 13 [Presbyterian Congregation v. Johnston.] Article 9. That on the first Monday of May in each year here- after, the congregation shall elect by ballot, or otherwise, six members thereof as trustees, who shall hold their offices for one year, and until their successors shall be duly elected, but no per- sons or person, except contributing members of the congregation, shall be eligible, or entitled to vote at such elections, except the pastor of the congregation, who shall always be both eligible and entitled to vote. Article 10. That if a vacancy happens by death, resignation, or otherwise, the remaining trustees shall elect a suitable person to supply the vacancy, until the next annual election. Article 1 1 . The clear yearly value, interest, or income, of the real and personal estate of the said corporation, shall not at any time exceed the sum of five hundred pounds Pennsylvania currency. In order to show the origin and continuity of the congregation, the plaintiffs gave in evidence as follows : April 1761. Supplication from York and Shrewsbury for Mr Hanna as their constant supply for one year. April 1761. Supplication from York for Mr Hanna, and they are informed that they cannot be indulged, because Mr Hanna is not under our care. Record of Carlisle Presbytery, April 1765. Supplications from York and Shrewsbury for Mr Long to sup- ply them a year equally divided, to pay 50, and they request that his ordination be hastened. Mr Long complies, and York congregation delivers to Mr Long subscription list. April 25th, 1765. John Hay sworn. I have known the lot and premises on which the Presbyterian church parsonage, &c., stand, between 30 and 40 years. What denomination of Christians have been in possession of these pre- mises ? They were called the Presbyterian church. The Eng- lish Presbyterians ? Yes. I do not know of any other English Presbyterian church in or around the borough of York but this. I knew George Irwin. I think he went up to this Presbyterian church. I was acquainted with William Scott, lived neighbour to him. I think he was a Presbyterian. I don't know Archibald M'Lean, I just remember him don't know where he worshipped at. So far as I know, the English Presbyterians have been in possession of those premises ever since. Cross-examined. The Presbyterians so far as I know are in possession now the same persons that were in possession formerly. Mr Cathcart used to preach there until a few years past. One Mr Wallace preaches there now. How do you know it was a Presbyterian church ? Because it was called so. How do you know it is a I. B 14 SUPREME COURT [Hatrisburg [Presbyterian Congregation v. Johnston.] Presbyterian church now ? Because it is called so. I know Mi- James Johnston of this place. Have known him for 20 years or more, can't just say how many. John Stroman affirmed. The lot of ground where the church is, was occupied by the Presbyterians ever since I knew it, at least it was so said. I can't particularize the year, but I think it was between 1785 and 1790. They were called the English Presbyterian church. I was very well acquainted with George Irwin. I believe he attended that church as far as I know. I knew William Scott very well. He attended at that church also. I knew Archibald M'Lean. I think he attended that church, I could not positively say, but I think he did. Cross-examined. I don't think William Scott is living; he went from here to Adams county, and I think he died. M'Lean and Irwin are dead. The church is now occupied by the Presbyterians. It is called the Presbyterian church, just as it was alw r ays, so far as I know. Resolution of 16th of Oct. 1838 : At a meeting of the English Presbyterian congregation of the borough of York, in the church, at half-past seven o'clock in the evening of Tuesday, the 16th October 1838 Dr William M'll- vain was called to the chair, and E. M. Donaldson appointed se- cretary. The meeting was opened by prayer, by the Rev. Mr Wallace. The following proceedings of session and the call of the congre- gation were then read, viz : "Whereas the following preamble and resolutions have been received from the Presbytery of Carlisle, viz : " Whereas the congregation of York appointed a commissioner to apply to this Presbytery for leave to present a call to the Rev. B. J. Wallace, a member of the Presbytery of Muhlenburg ; which application has never been made whereas Mr Wallace has been statedly preaching to said congregation for the last eight months, without having presented himself or his credentials to the Pres- bytery, or to the committee of Presbytery appointed to examine the credentials of travelling ministers : And whereas there is rea- son to apprehend that that congregation will receive injury by this state of things continuing : Therefore, Resolved " 1. That in the judgment of this Presbytery, Mr Wallace has been acting in an irregular manner. " 2. That the stated clerk write to the Presbytery of Muhlen- burg, and inform them of Mr Wallace's conduct, and the opinion of this Presbytery respecting it. " 3. That a copy of the above preamble and resolutions be sent by the stated clerk to Mr Wallace and the session of the congre- gation of York." May 1841.-] OF PENNSYLVANIA. 15 [Presbyterian Congregation v. Johnston.] And whereas Mr. Wallace has requested that the congregation may be convened to consider said preamble and resolutions, and to take such action upon them and any matters growing out of them, as may seem to them best : Therefore, resolved, that said request be granted, and that a meeting of the congregation be held, for the above purpose, in the church, on Tuesday evening, the 16th instant, at half-past 7 o'clock. Resolved, That foregoing proceedings of session be published to the congregation on next Sabbath at the morning and evening service. The Rev. B. J. Wallace, the pastor elect, addressed the congre- gation at length. E. M. Donaldson made a short statement, ac- counting for his present opposition to Rev. Mr Wallace, and con- cluded by offering the following resolution, viz : Resolved, That this congregation, for nearly the whole period since its organization, having been in connexion with the Carlisle Presbytery, ought not to be separated therefrom which being seconded, was debated. After some discussion Dr M'Clellan moved to postpone further consideration of the same, for the purpose of introducing the fol- lowing resolutions as a substitute, viz : Resolved, That this church and congregation continue to re- cognise the confession of faith of the Presbyterian church of the United States of America, as containing the system of doctrine taught in the Holy Scriptures, and approve of the government of the same church on the basis of the constitution. Resolved, That in studying the peace and unity of this church, and in the peculiar circumstances in which it is placed, while we disclaim any intention of becoming an independent church, we yet deem it inexpedient, for the present, to recognise the jurisdic- tion of any of the conflicting church judicatories which may claim authority over us which motion, being seconded, was de- bated. When The Rev. Dr Cathcart moved to set aside all the previously offered resolutions, and to substitute the following, viz : Resolved, That the congregation are willing to continue the pastoral labours of Mr Wallace, and permit him to remain un- connected with any Presbytery for the present. This motion not being seconded, the consideration of Dr. M'Clellan's resolutions was resumed. After debate, the question on the first resolution was put and carried. After further debate and much excitement, several motions to adjourn being made and negatived, the question on the second resolution was put and car- ried. So both of Dr M'Clellan's resolutions were adopted. At this period of the meeting, Mr Hambly, looking upon the resolution just passed as an avowed determination to separate this church from the Carlisle Presbytery, informed the meeting, that he was instructed by a number of persons, members of this 16 SUPREME COURT [Harrisburg [Presbyterian Congregation v. Johnston.] congregation, who coincided with him on this subject, to offer a protest ; which he asked might be received and entered upon the minutes of the meeting. He then read the protest, and tendered it to the secretary of the meeting. The protest was again read, but the meeting refused to receive it. Dr M'Clellan then offered the following resolution, viz : Resolved, That this church and congregation cheerfully exon- erate the Rev. B. J. Wallace from any charge of neglect on his part, in not having earlier obtained his certificate of dismissal from the Presbytery of Muhlenburg, Kentucky, as they believe him to have used all proper means to obtain the same. And fur- thermore, that this church and congregation highly approve of the ministerial labours and conduct of the Rev. B. J. Wallace since he has been among us, and believe that his talents and piety highly qualify him to promote the spiritual interests of this congregation which, being seconded, was adopted. Motions to adjourn made and negatived. Dr M'Clellan then read and offered the following resolution, viz : Resolved, That this church and congregation, while they desire that, for the present, no change shall take place in the ecclesias- tical relations of their minister, the Rev. B. J. Wallace, are will- ing, should circumstances render it absolutely necessary, that he should seek such connexions as will afford him requisite ecclesi- astical protection which, being seconded, was adopted without debate. The meeting then (11 o'clock) adjourned under much excite- ment. WM. M'ILVAIN, Chairman. E. M. DONALDSON, Secretary. York, 1004.93, in notes of the Commercial Bank of Millington, for which the said sheriff gave a receipt in the words follow- ing, viz : " October 14, 1840. " Received of Samuel B. Hickox, the above sum of $1004.93, in foil, for debt, interest, and costs on the above case. " Signed, JOHN Fox, Sheriff." May 1841.] OF PENNSYLVANIA. 03 [Bayard v. Shunk.j Whereupon, the said sheriff gave up the property levied on as aforesaid, to the said Samuel B. Hickox, who appropriated the same to his own use. On the 15th day of October 1840, J. M. Forster, as attorney for the plaintiff, called upon the sheriff for the money, who offered the same notes to him in payment ; and the said J. M. Forster received one of the said notes from the sheriff, and carried it to the office of the Bank of Pennsylvania at Har- risburg, and having returned to the office of the said sheriff, re- marked to the sheriff that he had seen Mr Lesley, the cashier of the said bank, who told him that in the last Bicknell's Reporter, he had seen the said notes of the Commercial Bank of Millington were quoted at one-half of one per cent, discount ; and the said sheriff then paid and delivered over to the said J. M. Forster, as attorney for plaintiff, the said notes, to the amount of nine hun- dred and ninety-five dollars and ninety-five cents, who, thereupon, gave a receipt in the following words, to wit : " October 15, 1840. " Received from John Fox, Esq., sheriff, the sum of nine hun- dred and ninety-two dollars principal, and three dollars and sev- enty-five cents interest, making in all nine hundred and ninety- five dollars and seventy-five cents, and three dollars and seventy- five cents attorney's fee. " JNO. M. FORSTER, Attorney" On the same fifteenth day of October 1840, said J. M. Forster gave said notes to J. Lesley, Esq., to carry to Philadelphia, and be there exchanged for other money ; and on the eighteenth day of October 1840, said J. Lesley returned from Philadelphia, and informed Mr Forster, the same day, that the Commercial Bank of Millington had stopped payment, and its notes " no sale." Mr Forster received the notes back again ; and on the 19th day of October 1840, H. M. Bayard, the plaintiff, offered to return the said notes to the said Samuel B. Hickox, who declined receiving them. It is agreed that the said Commercial Bank of Millington stopped payment and failed on the thirteenth day of October 1840. The cashier of said bank left Millington on the twelfth day of October 1840, and has not since been heard of, and the notes of said bank are of no value. On the seventeenth day of Novem- ber 1840, the plaintiff returned said notes to John Fox, the said sheriff, who, on the same day, offered to return them to the de- fendants, Shunk and Bouman, and to said S. B. Hickox, who sev- erally refused to receive them; and on the same day the said sheriff made return of the said fi. fa. prout. the said return. On the said 15th October 1840, when J. M. Forster received said notes, and gave said receipt to said sheriff, the clerk of the sheriff en- tered on the back of the said ft. fa. the words " money made," and made the same entry in the sheriff's docket; but said entry on the 94 SUPREME COURT [Harrisburg [Bayard v. Shunk.] back of the writ was not signed by the sheriff, nor did he make any return of the said fi. fa., or part with the possession of the same, till the said 17th November 1840, when first-mentioned re- turn was made, and the writ filed. It is agreed that after the thirteenth day of October 1840, the notes of the Commercial Bank of Millington were of no value in Millington ; that on the 16th October they were purchased by brokers at fifty per cent, in Bal- timore, and that they passed current in Harrisburg before and up to the 19th day of October 1840. If on the foregoing case the plaintiff, in the opinion of the court, is entitled to recover, judgment shall be entered for the plaintiff for the sum of nine hundred and ninety-five dollars and seventy- five cents, with interest from the said 14th day of October 1840. But if in their opinion the plaintiff is not entitled to recover, then judgment shall be entered for the defendants. Foster and M'Cormick, for plaintiff in error, Contended that that should not be considered as a payment which was of no value ,at the time. There can be no difference in principle between the case of the transfer of the note of an insolvent individual as payment and that of an insolvent bank: nor were the notes given in payment in this case any better than if they were counterfeit. In all the cases where the payment of bank notes has been considered as payment of money, the banks were solvent. And however much the notes may have been de- preciated, if they were current and accepted as money, it would be payment; but in this case, where they are found to be ut- terly worthless, it cannot be considered as payment : 2 Watts 121 ; 1 Penn. Rep. 379 ; 14 Serg. # Rawle 54 ; 2 Johns. 458 ; 3 Yeates 531 ; 7 Johns. 458 ; 10 Serg. $ Rawle 94 ; 6 Dana 336 ; 11 Wend. 1; 13 Wend. 101 ; 8 Yerger (Ten. Rep.) 175; 5 Johns. 68: 8 Johns. 389 ; 1 Cow. 290 ; 5 Wend. 490. Rawn and Attorney General Johnson, for defendant in error, Cited 6 Mass. 145; 1 Johns. 34; 10 Johns. 105; 10 Mass. 47; 11 Mass. 361; 6 Mass. 321; 11 Johns. 412; 6 Mass. 185; Webs. Die. Money; 10 Wheat. 340; 4 Doll. 234; 1 Binn. 27 ; 14 Serg. fy Rawle 56 ; 2 Stark. Ev. 596 ; Chit, on Bills 433 ; 8 Yerger 433 ; 13 Eng. Com. Law Rep. 201, 365; 1 Cranch 133. The opinion of the Court was delivered by GIBSON, C. J. Cases in which the bills or notes of a third party were transferred for a debt, are not to the purpose ; and most of those which have been cited are of that stamp. Where the par- ties to such a transaction are silent in respect to the terms of it, the rules of interpretation are few and simple. If the securities are transferred for a debt contracted at the time, the presumption is that they are received in satisfaction of it ; but if for a prece- May 1841.] OF PENNSYLVANIA. 05 [Bayard v. Shunk.] dent debt, it is that they are received as collateral security for it ; and in either case it may be rebutted by direct or circumstantial evidence. But by the conventional rules of business, a transfer of bank notes, though they are of the same mould and obligation betwixt the original parties, is regulated by peculiar principles and stands on a different footing. They are lent by the banks as cash ; they are paid away as cash ; and the language of Lord Mansfield in Miller v. Race was not too strong when he said, " they are not goods, nor securities, nor documents for debts ; but are treated as money, as cash, in the ordinary course and transaction of business by the general consent of mankind, which gives them the credit and currency of money to all intents and purposes ; they are as much money as guineas themselves are, or any other coin that is used in common payments as money or cash." If such were their legal character in England, where there was but one bank, how emphatically must it be so here where they have supplanted coin for every purpose but that of small change, and where they have excluded it from circulation almost entirely. It is true, as was remarked in Young v. Adams, (6 Mass. 182) that our bank notes are private contracts without a public sanc- tion, like that which gives operation to the lawful money of the country ; but it is also true that they pass for cash, both here and in England, not by force of any such sanction, but by the legis- lation of general consent, induced by their great convenience, if not the absolute necessities of mankind. Miller v. Race is a lead- ing case which has never been doubted in England or, except in a case presently to be noticed, in America ; and it goes very far to rule the point before us ; for if the wheel of commerce is to be stopped or turned backwards in order to repair accidents to it from impurities in the medium which keeps it in motion, except those which few and far between are occasioned by forgery, bank notes must cease to be a part of the currency, or the busi- ness of the world must stand still. The weight of authority bear- ing directly on the point, is decisively in favour of the position that bona fide payment in the notes of a broken bank discharges the debt. Though Camidge v. Allenby (6 B. 4* C. 373, S. C. 13 Eng. Com. Law Rep. 202) was not a case of payment in bank notes, but in the cash notes of a banker who had failed a few hours before, it was held that if they were to be considered as cash, the debt would be discharged ; but if as negotiable paper merely, the holder was bound to use due diligence in procuring payment of them ; and that in either aspect the same result was inevitable. Such notes, however, though formerly called goldsmiths' notes, have not been treated as cash by the merchants or the courts. Strictly speaking, they are ordinary promissory notes ; for none but those of the Bank of England are considered bank notes in that coun- try. The judges, however, seem to have hesitated as to their pre- cise character in that case ; but they distinctly decided that bona 96 SUPREME COURT [Harrisburg [Bayard v. Shunk.] fide payment in notes which have received the qualities of money from the conventional laws of trade, is absolute satisfaction not- withstanding the previous failure of the drawer. In America we have a decision directly to the point in Scruggs v. Gass, (8 Yerger 175) in which the Supreme Court of Tennessee held that pay- ment in the notes of a bank which had failed, discharged the debt ; and in Young v. Adams, already quoted, we have a decision of the Supreme Court of Massachusetts to the same purport. In contrast with these stands Lightbody v. The Ontario Bank, decided by the Supreme Court of New York, (11 Wendell 1) and affirmed in the Court of Errors, (13 Wendell 101.) The judges and senator who delivered opinions in that case, seem not to have coincided in their intermediate positions, though they arrived at the same conclusion. The chief justice who delivered the opin- ion of the Supreme Court, appears to have thought that a bank note stands on the footing of any other promissory note ; that as he who parts with what is valuable ought on principles of natural justice to receive value for it in return, a vendor is not bound by an agreement to accept promissory notes should they have been bad at the time of the transaction ; and that payment in the notes of an insolvent bank is no better than payment in coun- terfeit coin. It is obvious that this involves a contradiction ; for to confound bank notes with ordinary promissory notes would subject a debtor, who had paid them away, to the risk of the bank's ultimate solvency. In the Court of Errors, the chancellor, having premised that a state is not at liberty to coin money, or make any thing a legal tender but gold or silver, and consequently that the practice of receiving bank notes as money is a conven- tional regulation, and not a legal one, concluded that where the loss has already happened by the failure of the bank, there is no im- plied agreement that the receiver shall bear it ; and that if he were called on to express his sense of the transaction at the time, he would say what natural justice says, that the risk of previous failure in the value of the medium must be borne by the debtor. He would more probably say that he had not thought or formed an opinion about it. Senator Van Schaik also insisted much on the natural justice of the principle, and asserted that no case in the books authorizes an inference that bank notes are considered as money except in the universally implied condition that the banks which issued them are able to redeem them at the time of the transfer. In Miller v. Race, however, we have seen that Lord Mansfield aserted on the other hand that they are money without any qualification whatever; and Camidge v. Allenby, as well as Scruggs v. Gass, affirms that they may retain the character of money after the period of the bank's failure. To assume that solvency of the bank at the time of the transfer is an inherent condition of it, is to assume the whole ground of the argument. The conclusion concurred in by all, however, was that the medi- May 1841.] OF PENNSYLVANIA. 97 [Bayard v. Shunk.] um must turn out to have been what the debtor offered it for at the time of the payment. How does that consist with the equi- table principle that there must be, in every case, not only a mo- tive for the interference of the law, but that it must be stronger than any to be found on the other side ; else the equity being equal, and the balance inclining to neither side, things must be left to stand as they are, (Fonb. B. 1. c. v. 3. ib. ch. iv. 25) in other words, that the law interferes not to shift a loss from one innocent man to another equally innocent, and a stranger to the cause of it. The self-evident justice of this would be proof, were it neces- sary, that it is a principle of the common law. But we need go no further in search of authority for it than Miller v. Race, in which one who had received a stolen bank note for a full con- sideration in the course of his business, was not compelled to re- store it. It was intimated in The Ontario Bank v. Lightbody, that there was a preponderance of equity in that case, not on the side of him who had lost the note, but of him who had last given value for it. Why last? The maxim, prior in tempore, potior injure, prevails between prior and subsequent purchasers indifferently of a legal or an equitable title. It is for that reason the owner of a stolen horse can reclaim him of a purchaser from the thief: and were not the field of commerce market overt for every thing which performs the office of money in it, the owner of a stolen note might follow it into the hands of a bona fide holder of it. But general convenience requires that he should not ; and it was that principle, not any consideration of the equities betwixt the parties, which ruled the cause in Miller v. Race. But a more forcible illustration of the principle, were the case indisputably law, might be had in Levy v. The Bank of the United States, 4 DaH. 435; S. C. 1 Binn. 27; in which the placing even a forged check to the credit of a depositor as cash a transaction really not within any principle of conventional law was held to con- clude the bank ; and to this may be added the entire range of cases in which the purchaser of an article from a dealer, has been bound to bear a loss from a defect in the quality of it. And for the same reason that the law refuses to interfere between parties mutually innocent, it refuses to interfere between those who are mutually culpable ; as in the case of an action for negligence. The rule of the admiralty, being that of the civil law, would apportion the loss ; but it has no place in any other court. What is there, then, in the case before us to take it out of this great principle of the common law ? The position taken by the courts of New York is, that every one who parts with his pro- perty is entitled to expect the value of it in coin. Doubtless he is. He may exact payment in precious stones, if such is the bar- gain. But where he has accepted without reserve what the I 13 I 98 SUPREME COURT [Harrisburg [Bayard v. Shunk.] conventional laws of the country declare to be cash, his claim to any thing further is at an end. Bills of exchange and promis- sory notes enter not into the transactions of commerce, as money ; but it impresses even these with qualities which do not belong to ordinary securities. The holder of one of them, who has taken it in the ordinary course, can recover on it, whether there was a consideration between the original parties or not ; and if no man can part with his property, except subject to an inherent right to have the worth of it, at all events, why should not the drawer of a note be at liberty to show want of consideration against an endorsee, on the ground that no one can pledge his responsibility without having received what he expected for it? Or why, on the supposed moral and public considerations that were invoked in the discussion of the general principle, should the vendee of a chattel be bound to pay for it, though it turn out to be inferior in quality to what he expected it to be ? It is because it would stop the wheels of commerce to trace the defect through a series of transactions to the author of it ; and dealers must therefore take the risk of it for the premium of the profits. And may not dealers, as well as insurers, take the risk of an event which may have already happened? The creditor does agree to take the risk of the bank's solvency when he makes its notes his own with- out reserve. The assertion that it is always an original and subsisting part of the agreement that a bank note shall turn out to have been good when it was paid away, can be conceded no farther than regards its genuineness. That genuine notes are supposed to be equal to coin, is disproved by daily experience, which shows that they circulate by the consent of whole communities at their nomi- nal value when notoriously below it. But why hold the payor responsible for a failure of the bank only when it has been ascer- tained at the time of the payment, and not for insolvency ending in an ascertained failure afterwards? As the bank may have been actually insolvent before it chose to let the world know it, we must carry his responsibility back beyond the time when it ceased to redeem its notes, if we carry it back at all. Were it not for the conventional principle that the purchaser of a chattel takes it with its defects, the purchaser of a horse with the seeds of a mortal disease in him might refuse to pay for him though his vigour and usefulness were yet unimpaired ; and if we strip a pay- ment in bank notes of the analogous cash principle, why not treat it as a nullity, by showing that the bank was actually, though not ostensibly, insolvent at the time of the transaction ? It is no answer to say the note of an unbroken bank may be instantly con- verted' into coin by presenting it at the counter. To do that may require a journey from Boston to New Orleans, or between places still further apart, and the bank may have stopped in the mean time ; or it may stop at the instant of presentation when situated May 1841.] OF PENNSYLVANIA. 99 [Bayard v. Shunk.] at the place where the holder resides. And it may do so even when it is not insolvent at all, but perfectly able eventually to pay the last shilling. This distinction between previous and sub- sequent failure, evinced by stopping before the time of the trans- action or after it, is an arbitrary and impracticable one. To such a payment we must apply the cash principle entire, or we must treat it as a transfer of negotiable paper, imposing on the trans- ferree no more than the ordinary mercantile responsibility in re- gard to presentation and notice of dishonour. There is no mid- dle ground. But to treat a bank note as an ordinary promissory note, would introduce endless confusion, and a most distressing state of litigation. We should have reclamations through hun- dreds of hands, and the inconvenience of having a chain of dis- putes between successive receivers, would more than counterba- lance the good to be done by hindering a crafty man from putting off his worthless note to an unsuspecting creditor. No contri- vance can prevent the accomplishment of fraud, and rules devised for the suppression of petty mischiefs have usually introduced greater ones. The case of a counterfeit bank note is entirely different. The laws of trade extend to it only to prohibit the circulation of it. They leave it in all beside to what is the rule both of the common and the civil law, which requires a thing parted with for a price to have an actual, or at least a potential existence (2 Kent 468), and a forged note, destitute as it is of the quality of legitimate being, is a nonentity. It is no more a bank note than a dead horse is a living one ; and it is an elementary principle that what has no existence cannot be the subject of a contract. But it can- not be said that the genuine note of an insolvent bank has not an actual and a legitimate existence, though it be little worth ; or that the receiver of it has not got the thing he expected. It ceases not to be genuine by the bank's insolvency ; its legal obligation as a contract is undissolved ; and it remains a promise to pay, though the promisor's ability to perform it be impaired or destroyed. But as the stockholders of a broken bank are the last to be paid, it is seldom unable in the end to pay its note-holders and depositors ; and even where nothing is left for them, its notes may be parted with at a moderate discount to those who are indebted to it. We seldom meet with so bad a case as the present, in which every thing like effects, and even the vestiges of the bank, disappeared in a few hours after the first symptoms of its failure. But inde- pendent of that, the difference between forgery and insolvency in relation to the transfer of a bank note, is as distinctly marked as the difference between title and quality in relation to the sale of a chattel. What, then, becomes of the boasted principle that a man shall not have parted with his property until he shall have had value, or rather what he expected for it ? Like many others of the same 100 SUPREME COURT [Harrisburg [Bayard v. Shunk.] school, it would be too refined for our times, even did a semblance of natural justice lie at the root of it. But nothing devised by human sagacity can do equal and exact justice in the apprehen- sion of all men. The best that can be done, in any case, is no more than an approximation to it; and when the incidental risks of a business are so disposed of as to consist with the general convenience, no injustice will in the end be done to those by whom they are borne. Commerce is a system of dealing in which risk, as well as labour and capital, is to be compensated. But nothing can be more exactly balanced than the equities of parties to a payment in regard to the risk of the medium when its worthlessness was unsuspected by either of them. The difference between them is not the tithe of a hair, or any other infinitesimal quantity that can be imagined ; and in such a case, the common law allows a loss from mutual mistake to rest where it has fallen, rather than to remove it from the shoulders of one innocent man to the shoulders of another equally so. The civil law principle of equality, however practicable in an age when the operations of commerce were few, simple, and circum- spect, would be entirely unfit for the rapid transactions of modern times : it would put a stop to them altogether. No man can with- hold his praise of the civil law, as a wonderful fabric of wis- dom for its day, or deny that it has contributed largely to the best parts of our jurisprudence ; but all its materials of superior value have already been worked up in our more commodious mo- dern edifice ; and if the cultivation of an acquaintance with it is to beget a desire to substitute its abstract principles for the maxims of the common law the accumulated wisdom of a thousand years- experience it were better that our jurists should die innocent of a knowledge of it. This longing after its peculiar doctrines began with Mr Verplank's commentary on the decision of the Supreme Court of the United States in Laidlaw v. Organ, 2 Wheat. 178; and it was subsequently indulged by the Supreme Court of his own state so far as to sap the foundation of its own sound decision in Seixas v. Wood, 2 Caine's Rep. 48. In Laidlaw v. Organ, the pur- chaser refused to disclose his information that the article had risen in the market, and there was therefore room for a pretence of inequality in the circumstances of the parties; but where they have acted as in this case, in equal ignorance, and with equal good faith, that pretence, flimsy as it was even there, is wanting, and the law on principles of justice, as well as convenience, re- fuses to interfere between them. It is therefore unnecessary to insist on the provisions of our statute of 1836, which enacts that " it shall be lawful for the officer charged with the execution of any writ of fieri facias, when he can find no other real or personal estate of the defendant, to seize and take the amount to be levied by such writ, of any current gold, silver, or copper coin be- longing to the defendant, in satisfaction thereof; or he may take May 1841.] OF PENNSYLVANIA. 101 [Bayard v. Shunk.] the amount aforesaid of any bank notes, or current bills for the payment of money, issued by any moneyed corporation, at the par value of such notes." At least for the purpose of seizure in exe- cution, therefore, bank notes are money ; and had the sheriff re- turned that he had seized these notes as the defendant's property, instead of the property itself, it would not be pretended that the debt was undischarged. But though he returned the facts spe- cially, the notes were received as cash by the plaintiff's attorney; and after that, on no principle whatever could the transaction be thrown open. The plaintiff's case is an unfortunate one, but we could not relieve him without imposing an equal misfortune on the defendants. Judgment affirmed. Bank of Pennsylvania against Reed. There being no form prescribed by the Act of Assembly in which security shall be given for a stay of execution upon a judgment, an obligation under the hand and seal of the surety entered upon the record of the judgment, binding himself for the payment of the debt, interest and costs, is sufficient to entitle the defendant to the stay provided by the Act. The cashier of a bank has a general authority to superintend the collection of notes under protest, and to make such arrangements as may facilitate that ob- ject: to do any thing in relation thereto that an attorney might lawfully do; but his authority would not extend to justify him in altering the nature of the debt, or to change the relations of the bank from a creditor to that of an agent of its debtor. But a subsequent acquiescence of the bank in any arrangement of its cashier would be conclusive upon it. In a question between the holder and endorser of a note regarding the exone- ration of the latter on the ground of the negligence of the holder, it is error to permit the endorser to give evidence of the ability of the payor at a period when it was not in the power of the holder to enforce payment ERROR to the Common Pleas of Mifflin county. The Bank of Pennsylvania against William Reed and James Thompson, surviving partners of William Reed & Co. The case and points are very fully stated in the opinion of the court. The cause was argued by Foster and A. S. Wilson, for plaintiff in error. It is the duty of the directors, and not of the cashier, to direct the legal proceedings of the bank. 6 Peters 51 ; 8 Peters 12. But the bank was only bound to the exercise of ordinary diligence ; it was not their duty to arbitrate the cause at all, and it would therefore follow that, even if there had been an irregularity in that i. I* 102 SUPREME COURT \Harrisburg [Bank of Pennsylvania v. Reed.] proceeding it would not prejudice the bank. 1 1 Serg. 4* Rawle 182. There was no evidence in the cause which justified the court be- low in submitting to the jury whether there was due diligence on the part of the bank. 1 1 Johns.188 ; 21 Wend. 644. The bank was not bound to except to the form of the recognizance, and if it had it would not have availed, for the obligation of the surety is good. 2 Penn. Rep. 167 ; 1 Penn. Rep. 401 ; 17 Serg-. 4* Rawle 282 ; Story on Bail. 6. Benedict and Blanchard, for defendants in error. It is the duty of a cashier to make all arrangements to secure debts due to the bank. 4 Serg. <$ Rawle 16 ; 12 Serg. <$ Rawle 61. The evidence as to the situation and property of the payors of the note was properly received, on the ground that the recognizance for the stay of execution was a nullity, and therefore execution might have issued at any time. But how could the court deter- mine as matter of law whether there was due diligence or not ? it depended upon a variety of circumstances which could only be referred to the jury, and if they committed an error, the remedy was by motion for a new trial. The opinion of the Court was delivered by ROGERS, J. This was a scire facias, to renew and to continue the lien of a judgment of November term 1836, to which the defendants pleaded payment, with leave, &c. The defendants alleging that they had a defence, moved the court to open the judgment; whereupon, March 5th 1840, on hearing the motion, the court discharged the rule ; the plaintiff having agreed that the defendants shall have liberty to give every matter and thing in evidence in the scire facias suits, which they might or could have on the original judgment, if the rule had been made absolute. Both causes to be tried together. The case was this : William Reed & Co. sold pig metal to R. & P. W. Webb, of Little Britain township, Lancaster county, who gave their note at four months for $1325, payable to William Reed at the Farmer's Bank of Lancaster. This note was discounted by the officer of discount and deposit of the Bank of Pennsylvania, at Harrisburg, at the instance of William Reed, who endorsed it with his own name, and the name of William Reed & Co., and the proceeds were placed to the credit of William Reed & Co. The Webbs failed to pay the note at maturity to the Farmer's Bank of Lancaster, where it was sent for collection, and it was duly protested on the 23d August 1831, of which the defendants had notice. After this a correspondence took place between William Reed and Mr Lesley, who was the cashier of the Bank; and on the 1st Septem- ber 1832, Mr Lesley writes to William Reed as follows : " I received your favour of the 27th instant, with reference to Webbs' note. I will make the following proposition ; and if you May 1841.] OF PENNSYLVANIA. 103 [Bank of Pennsylvania v. Reed.j agree to it, it may save both you and me some trouble. If you will give judgment to the bank, as collateral security, for the amount of $1325, protest and interest, we will engage to bring suit against the Webbs immediately, and endeavour to collect the money from them. If you would do this, I presume you and William Thomp- son would have no objection to join in the judgment. " If you decline the above proposition, we will be under the ne- cessity of commencing a suit at once against the firm of William Reed & Co. An early reply on this subject, will oblige Yours, truly, " T. LESLEY, Cashier." To this letter no answer appears to have been returned, and on the 14th September 1832, Mr Lesley writes to Reed & Co. as follows : " By the mail that takes this, I have given instructions to E. Banks, Esq., of Lewistown, to endeavour to get you to give judgment to the bank for the security of the amount of R. & P. W. Webbs' note for $1325, and I trust your sense of justice will induce you to do so, and save us the unpleasant necessity of com- mencing suit against you at once. If you will give judgment, we will then bring suit against the Webbs, and get the money from them. I am truly yours, " T. LESLEY, Cashier." In pursuance of these communications, on the 20th October 1832, Reed and Thompson confessed judgment to the plaintiffs for the sum of $1338.25, on the promissory note as before stated, and William Reed at the same time confessed a judgment for a like sum. To recover the amount due on these judgments, this suit is brought. On the completion of this arrangement, Mi- Lesley sent the note to Lancaster, and a suit was brought to the December term following. The writ was issued on the 28th November 1832. On the llth February 1833, the plaintiffs attor- ney entered a rule of reference; and, on the 26th March 1833, obtained an award of arbitrators, which was filed on the same day. On the 15th of April, 1833, on which day the time to appeal expired, bail was entered for the stay of execution in these words : " I, William Webb, of Little Britain Township, hereby become bail for the amount of the award in this action, together with the interest that may accrue, and the costs. Witness my hand and seal, this 15th April 1833. " WM. WEBB. [SEAL]. " 'Jest. CHRISTIAN BARTRAM." The suit against the Webbs was brought in the name of the endorsers ; and, in consequence of a defence made against them, the award was only for the sum of $1236.20, which was less than 104 SUPREME COURT [Harrisburg [Bank of Pennsylvania v. Reed.] the amount due ; but this is immaterial, as the award for this amount was accepted by William Reed. The stay of execution on the judgment expired on the 4th December 1833 ; and, on the 5th December, the plaintiffs' attor- ney issued a. fieri facias, and on the 19th December, a levy was made on the personal property of R. & P. W. Webb, consisting of a variety of articles, such as horses, wagons, five thousand bushels of coal, &c. ; also, on a tract of sixty acres of land, brick house, forge houses, and on eighty-five and forty-five acres of land, &c. The personal property was sold by the sheriff for $277.41. An inquisition was held, and the real property was condemned. The defendants contend that the recognizance is defective ; that by the arrangement made with Mr Lesley the cashier, the plaintiffs undertook to collect the debt from R. & P. W. Webb, with due and proper diligence, and that they have been guilty of laches in the collection of the same, to the injury of the defendants, who were the endorsers. On the trial, the defendants offered in evidence the deposition of Morgan J. Lewis, to which the plaintiffs' counsel objected, because the letters of Mr Lesley, the cashier, did not show such an engagement by the bank, to pursue the Webbs, as will charge them with laches. They also objected to that part of the deposition which relates to the property in the possession of the defendants in February and March, 1833. As to the first position, in the 7th section of the Act of 21st March 1806, it is provided, that if the defendant is not a freeholder, &c., execution may issue immediately, unless the defendant shall enter surety in the nature of special bail, in which case there shall be stay of execution for thirty days ; and if at or before the expiration of that term the defendant shall give security for the amount of debt, interest, and costs, such de- fendant shall be entitled to the same stay of execution, as if he was a freeholder. The recognizance is taken to the amount of the award in the action, together with the interest that may accrue, and costs. This recognizance is substantially good; for no form of recognizance is prescribed in the Act, and this, as has been proved, is in the prescribed form which has been pursued in the county of Lancaster for a number of years. That it is substantially good, is ruled in Commonwealth v. Finney, 17 Serg. fy Rawle 282*; where a recognizance very similar in form was held a valid recogni- zance. Mr Justice Huston truly observes, " that the kind of security is not mentioned in the Act ; nor whether it shall be by bond or re- cognizance, whether on the docket or in pais ; whether it shall be filed in the prothonotary's office, or kept by the plaintiff. The prac- tice has been in general to enter it on the docket, and for the surety to sign it. It is in some counties drawn more at large, and stated to be for the purpose of obtaining for the defendant the stay of execution allowed by law. In some counties, it is taken in double the amount of the debt ; in some, in the amount; and in some, he May 1841.] OF PENNSYLVANIA. 105 [Bank of Pennsylvania v. Reed.] becomes security for debt, interest, and costs ;" to which we may add the practice, of which this is an instance, to take the secu- rity on the docket, under the hand and seal of the surety, acknow- ledging that he becomes bail for the amount of the award, or judgment (as the case may be), in the action, together with the interest that may accrue, and the costs. In connexion with this part of the case, we may consider the ob- jection to sufficiency of the bail. At the time the bail was entered, the real estate of the Webbs had not been sold ; of this, William Webb, the bail, was entitled to a share, and also to a part of a mortgage, which his uncle, William Webb, held on his father, Jonathan Webb, and which he had willed to him in common with his brothers and sisters. The probability is, therefore, that he would have been able, and would have been justified, had an ex- ception been taken ; and that at that time the prothonotary was the judge as to the sufficiency of the bail in the first instance. The most that can be required of an attorney is ordinary dili- gence and skill ; but this would be exacting from him extraordi- nary care and attention, and particularly as there is nothing to show that William Webb was notoriously insolvent, or that any thing had occurred, of which the attorney was aware, which ought to excite suspicion or induce extraordinary attention and vigilance. We see nothing in the circumstances proved, which imposed any obligation on the plaintiffs or their attorney, to except to the bail. The deposition of Morgan J. Lewis was said to be objection- able in whole and in part. 1st. Because the letters of Mr Lesley do not show such an engagement by the bank to pursue the Webbs, as will charge them with laches : and 2d. That evidence of the value of the property of the Webbs, in the months of February and March 1833, was inadmissible, inasmuch as an execution could not be issued on the award, at any rate, before the 15th April 1833. The first objection involves the extent of the authority of cashiers of banks. By the protest, the defendants, who were the endorsers, and who received the proceeds of the note, became absolutely bound for the money. But in consideration that the defendants would give them a judgment as a collateral security, the cashier agreed that the bank would bring suit against the Webbs immediately, and would endeavour to collect the money from them. The terms, although somewhat varied in the second letter, make no substantial alteration in the contract; for, to- gether, they amount to nothing more nor less than an engagement to pursue the Webbs with reasonable diligence. By the contract, the situation of the parties is entirely changed. The defendants are converted from absolute to contingent debtors, and the bank made to assume the character of agents, for the collection of the debt from the Webbs ; and as such (for a con- sideration, viz. the confession of judgment by the defendants.) i. 14 106 SUPREME COURT [Hamsburg [Bank of Pennsylvania v. Reed.] they have obligated themselves to the exercise of ordinary dili- gence and skill. It is a principle which cannot be controverted, that the acts of a general agent will bind his principal, so long as he keeps within the general scope of his authority ; but he cannot bind his principal if he exceed his power. It may, perhaps, be conceded, that a cashier has a general authority to superintend the collection of notes under protest, and to make such arrange- ments as may facilitate that object, by compromise or otherwise ; in short, to do any thing in relation thereto that an attorney might lawfully do. Nay, more, in particular cases, his authority would extend further, for the extent of the authority of an agent may depend sometimes on the nature of the agency, which may be extended or varied on the ground of implied authority, according to the pressure of circumstances connected with the business with which he is intrusted. Judson v. Sturges, 5 Day 556. If it had been shown that the arrangement in question was necessary for the security of the debt, or that the circumstances justified the agent in acting as he did, the principal would have been bound ; but I am not prepared, as a general rule, to say, that the author- ity of a cashier extends so far as to authorize him to alter the nature of the debt, or to change the relations of the bank from a creditor to the agent of its debtor. If this can be done, it is diffi- cult to set limits to their authority ; and, perhaps, many of the disasters which have lately befallen those institutions have arisen from the assumption of power by cashiers and presidents. But however this may be, this case is without difficulty ; for it is a very clear and salutary rule in relation to agencies, that when the principal, with the knowledge of all the facts, adopts or ac- quiesces in the acts done under an assumed agency, he cannot be heard afterwards to impeach them, under the pretence that they were done without authority, or even contrary to instructions ; Omnis ratihabitio mandate cequiparatur. When the principal is informed of what has been done, he must dissent, and give notice of it in a reasonable time ; and if he does not, his assent and ratification will be presumed. So far from the bank disavowing the act of the cashier, they are now seeking to enforce the con- tract by the prosecution of a. fieri facias on the judgment confessed by the defendants, in pursuance of this very arrangement. There is nothing then in the first bill. In the remarks already made, it has been shown that the recog- nizance was good, and that there was no obligation on the attor- ney to except to the bail. From this it follows that no execution could have been issued against the bail until some time in the month of December of that year. If this be so, it is difficult to perceive the relevancy of the proof of the value of Webb's goods in the months of February and March preceding. The Court of Common Pleas went on the erroneous supposition that execution could have been issued the 15th April 1833, at the expiration of May 1841.] OF PENNSYLVANIA. 107 [Bank of Pennsylvania v. Reed.] the twenty days after the award, and that it appeared, from the answer of the witness on his cross-examination, that the Webbs continued their business about the same until he left them, and that they continued to carry on the works through that summer. But it appears that the witness quitted the employment of the Webbs before the 15th April, so that it might be even doubtful whether the court were right in that state of the fact ; but as the case stood, the testimony was only calculated to mislead the jury, for there is no pretence to say that the Webbs continued to carry on their business in the same manner, as in February and March, until the month of December, before which time, as has been shown, the defendants could not have issued an execution. This testimony, therefore, was erroneously admitted. It is also the opinion of the court that the Court of Common Pleas were right in instructing the jury that in order to enable the plaintiffs to recover, it was not necessary to pursue the bail on the recognizance. The contract must receive a reasonable construc- tion; the bank is bound to the exercise of ordinary, not of extra- ordinary diligence. They have prosecuted the suit against the original partners, and have succeeded in part. If the defendants pay the money (which, we think, they are bound to do,) they may bring a suit on the recognizance, and recover the money from the bank. The original suit was brought in their own name. They have not only the equitable but the legal title ; there is, therefore, no obstacle, either legal or equitable, in their way. In conclu- sion, I must be permitted to express my surprise that a jury could be prevailed on to give a verdict for the defendant, after the clear and explicit charge of the court, and that a new trial, if asked, (which I am disposed to doubt,) was not granted. It is not enough that the want of due and proper diligence should be shown, (which the defendants have failed to do ;) but the injury which resulted to the defendants, and the extent of it, should be proved, to justify a verdict for the defendants. Judgment reversed, and a venire de novo awarded. 108 SUPREME COURT [Harrisburg Rutter against Gable. B. against whom a domestic attachment had issued, transferred to G. a check for the payment of money, which G. applied to the payment of a debt for which he was security for R. Held that an action for money had and received would not lie by the trustees under the domestic attachment against G. to re- cover the amount of the check. ERROR to the Common Pleas of Lancaster county. This was an action on the case for money had and received by John Mathiot and others, trustees of Levi Rutter under a writ of domestic attachment, against Jacob Gable ; in which the fol- lowing case was stated in the nature of a special verdict : On the 7th of June 1838, a note drawn by Levi Rutter, en- dorsed by Jacob Gable, the defendant, and discounted at the Lancaster Savings Institution, for the sum of $300, became due at the office of the said Institution, and was regularly protested for non-payment, and notice thereof duly given to the endorser. On the 8th of June 1838, Thomas Gillespie drew his check on the Western Bank of Philadelphia, payable to the order of Levi Rutter, for the sum of $184.73, and placed the same enclosed in a letter directed to Levi Rutter at Lancaster, in the post-office at Philadelphia. This letter was taken from the post-office at Lan- caster on the llth of June following, by William Rutter, and car- ried by him to the office of the Lancaster Savings Institution. It was there opened, the said check taken out, and deposited by Wil- liam Rutter in the said Institution, for safe-keeping, and a certifi- cate to that effect given by the treasurer thereof to the said Wil- liam Rutter. Afterwards, on the same day, the defendant, Gable, presented this certificate to the said treasurer, with the order from William Rutter upon the same, and demanded the said check, which was given up to him. He immediately endorsed the check, by writing on the back of the same, the words " Jacob Gable, for Levi Rutter," and again deposited it with the said Institution for collection, and directed the proceeds thereof to be credited to him, and applied, when received, towards the payment of the note of Levi Rutter endorsed by himself, as above stated. The check was on the next day, (12th June,) remitted to the Schuylkill Bank, at Philadelphia, presented at the Western Bank, and paid to the cashier of the Schuylkill Bank, who credited the amount thereof to the Lancaster Savings Institution. That Institution credited May 1841.] OF PENNSYLVANIA. 109 [Rutter v. Gable.] the amount to the defendant, and applied the proceeds in part pay- ment of the said note, as directed by him, whereupon the defend- ant paid to the said Institution the remainder of the amount due on the said note, and received the same note into his own posses- sion. The defendant, Gable, never was authorized by Levi Rutter to act as his agent, nor to transact business of any kind for him, or in his name. On the llth of June 1838, a writ of domestic attachment issued from the District Court of the city and county of Lan- caster, of September Term, 1838, No. 1., at the suit of Joseph Potts against the above-mentioned Levi Rutter, under which such proceedings took place, that on the 4th of October 1838, the said Court appointed the plaintiffs in this suit trustees of the said Levi Rutter, and the said trustees accepted the trust, and were duly and in all things qualified to act as such, according to law, of all which proceedings the defendant had notice after the attachment issued, but before the institution of this suit. Defendant having refused to pay over the amount of the said check to the plaintiffs on demand made by them, this suit was instituted to recover the said sum, on the 5th of June 1839. Notice of the attachment was given to Samuel E. Gundaker, cashier of the Lancaster Savings Institution, and he was sum- moned as garnishee, on the 15th of June 1838, before which time the amount of said check had been credited to Jacob Gable as above stated. If on these facts the court are of opinion that the plaintiffs are entitled to recover, then judgment for the plaintiff's for the amount of the said check, with interest from the institution of this suit otherwise judgment for defendant. The court below (Hays, President) rendered a judgment for the defendant. Long, for plaintiff in error. Reigart, for defendant in error. The opinion of the Court was delivered by HUSTON, J. The case stated gives us the outlines of the mat- ter in dispute : but as to some particulars is not so explicit as could have been wished. It would seem, from the conduct of the Savings Institution, and the readiness which they showed in giving Gable the deposit certificate, and the control of the check, that they considered William as having authority to act for Levi Rutter ; but nothing is said about this in the case stated, though it finds that Gable never was authorized by Levi to act as his agent, or transact any business for him. Perhaps it may not be material in the form of action selected by the plaintiffs in this 110 SUPREME COURT [Harrisburg [Rutter T. Gable.] case, to inquire into the authority of William. The action for money had and received admits the defendant to have received the money fairly so entirely so, that where a defendant has been guilty of a trespass, even attended with such aggravated circum- stances as might justify a jury in giving exemplary damages, yet if defendant has sold the goods and sued for the price of them in assumpsit for money had and received, all claim for trespass, and even for the value of the goods upon the allegation that he has sold them for less than the value, is out of the question ; the form of action admits his authority to sell, and the fairness of the sale. A remarkable case on this subject is found in 4 T. R. 211, Smith v. Hod son cited 2 Smith's Lead. Cas. 81. Smith was the as- signee of Lewis and Potter, who were bankrupts. Before the bankruptcy, Hodson had accepted a bill for the accommo- dation of Lewis and Potter to the amount of 442/., payable at six months. On the 26th of April several bills presented to Lewis and Potter were refused to be paid ; on the 28th of April Hodson purchased from them goods to the amount of 531/. 7s. Gd. on a credit of six months ; on 29th of April they committed an act of bankruptcy ; on 9th of May commission issued, and in due time plaintiffs appointed assignees. In the mean time, the bill accepted by Hodson fell due on 7th of May. Hodson did not pay it on that day, but paid it in September following, about the time the credit on the goods he bought expired. The assignees after this sued Hodson for the price of the goods sold. He paid into court the balance between the amount of the accepted bill and the price of the goods. The jury, at the request of the court, found the purchase of goods to have been unfair, as to other creditors, and found for the plaintiffs. There was a motion to set aside the verdict, and enter a nonsuit, as if a special verdict. Lord Ken- yon, among other things, says, " It is expressly found that the goods in question were delivered by the bankrupts to the defend- ant with a view to defraud the other creditors, and therefore an action might have been framed to disaffirm the contract, which was thus tinctured with fraud ; if the assignees had brought an action of trover, they might have recovered the value of the goods." He then goes into an exposition of their statutes of bankruptcy, for an exposition of the changes in which, see note to 2 Smith's Leading Cases, 178 ; at first all acts and dealings, though otherwise bona fide, were avoided from the time the act of bankruptcy was committed ; then from the time when the commission issued; and by 6 George 4, ch. 16, it was extended to the time when the party had notice of the bank- ruptcy ; and then he says, " if trover had been brought, the de- fendant would have had no defence ;" and after stating the differ- ence between the effect of different actions, he concludes, " now here the assignees, by bringing this action on the contract, recog- nized the act of the bankrupt, and must be bound by the trans- May 1841.] . OF PENNSYLVANIA. Ill [Rutter v. Gable.] action in the same manner as the bankrupt himself would have been ; and if he had brought the action the whole account must have been settled ; therefore, on the distinction between the action of trover and assumpsit, we are all of opinion that a judgment of nonsuit must be entered." I shall cite one more case : Thorpe \. Thorpe, 3 Darn. <^ Adol. 580; in which the previous cases were considered. The defendant had received from the plaintiff a bill, endorsed and payable to plaintiff, for the purpose of receiving the money and paying it to W. He received the money, and did not pay it to W., but re- tained it to pay a debt to himself. Parke J. says, " if the plain- tiff, instead of assumpsit for money had and received, had chosen to bring a special action for the breach of duty, there could have been no set-off, because the suit would have been for unliquidated damages but by bringing assumpsit for money had and received, he lets in the consequences of that form of action ; one of which is the right of set-off." And we have seen by the last case that as- signees are as much bound by the form of action as the bankrupt would have been, if he had sued ; to this latter position see Brewer v. Sparrow, 7 B. fy C. 310. One more case : Hulme v. Muglestone, 3 Ince 4* Webb 30, was an action for money had and received to the use of the assignees of J. S. The defendant pleaded, that before notice of the bankruptcy, he endorsed a bill for the accommoda- tion of J. S., and discounted another for him, both of which he was obliged to take up after the bankruptcy ; that before the bankruptcy, J. S. lent him a check, the proceeds of which he received after the bankruptcy, which was the same money now sued for, and against which he claimed to set off the amount of the dishonoured bills. The court held the plea good ; this clearly on the form of action. The 19th section of our attachment law says, " the trustees shall be vested with all the estate of the debtor, at the time of issuing the attachment, subject to all liens existing at that time." In the 20th section, it is provided, " that no purchase or assign- ment of the personal property of such debtor, made bonafide and for a valuable consideration, by or to any person having no notice or knowledge of the attachment, shall be invalidated or impaired thereby." These are exceptions to the rule in section 19. In such case, the property does not vest in the trustees at the time of the attachment. The case before us is stronger in favour of the defendant than that first cited. An endorser on a note protested is as much fixed for the amount as the acceptor of a bill. Gable got the check at least as fairly as Hodson got the goods; and he paid the debt before notice of the attachment. Hodson did not pay the bill for several months after: the form of action protected Hodson. This de- fendant is infinitely stronger in his defence than in the last case 112 SUPREME COURT [Harrisburg [Finney v. Cochran.] in which the defendant lent his name, and discounted the note, and got possession of the check before notice, yet all the money was paid out, and the amount of the check received after notice. In that case, however, the form of action saved the defendant. In the case before us, all was received and paid before notice ; and assumpsit for money had and received must have the same effect as in the cases cited. Judgment affirmed. Finney against Cochran. It is not a valid objection to the admission of the evidence of a claim, that it is barred by the statute of limitations. Trusts which are not affected by the statute of limitations are those technical and continuing trusts which are not cognizable at law, but fall within the pro- per, peculiar, and exclusive jurisdiction of a court of equity. If a joint suit be brought against two obligors, one of whom dies pending the action, and the plaintiff takes a judgment against the survivor, the estate of the deceased obligor is thereby discharged from liability. ERROR to the Common Pleas of Dauphin county. This was an action for money had and received by David Fer- guson for the use of John Cochran against Thomas Finney, to which the defendant pleaded non assumpsit, non assumpsit infra sex annos, and payment with leave, &c. The suit was instituted on the 27th of March 1840. The plaintiff gave in evidence the following receipts, bonds and records : " Received, March 29th 1824, of David Ferguson, four bonds, payable by Jacob Frantz and Philip Brown, for $400 each ; the first of them becomes due on the first day of May in the year 1826 ; the second on the 1st May 1827, the third on 1st May 1828, the fourth on 1st May 1829, which bonds I give to Thomas Fin- ney to save and keep the said Finney harmless from any costs or trouble he may have for his endorsing a note for me in the Har- risburg Bank, of twelve hundred dollars. Witness my hand the day and year aforesaid. The four bonds above amounting to $1,600. " Received by me, " THOMAS FINNEY." " Received, May 5th 1824, of David Ferguson, two bonds pay- able by Jacob Frantz and Philip Brown, to Adam Brightbill, each May 1841.] OF PENNSYLVANIA. 113 [Finney v. Cochran.] bond for $400; the first bond becomes due on the 1st May 1830, the second on 1st May 1831, and an assignment of the one-half of four hundred acres of land on the Blue mountain, held by warrant from the commonwealth by Samuel Finney, deceased, and the said David Ferguson, which bonds and land I leave in the hands of said Thomas Finney, to indemnify him for his father, the said Samuel Finney being bound or bail in a bond to Mary Milligan, and now in suit, and one note payable by the said David Fergu- son, to the aforesaid Samuel Finney, amounting now with inte- rest to " THOMAS FINNEY." Plaintiff then further offered Bond dated 6th April 1819, pay- able 1st May 1826, for $400, with the receipts thereon endorsed, one dated May 17th 1826, for $396. February 18th 1828, balance of within bond in full. Bond payable 1st May 1827, for $400, with the receipts thereon dated February 18th 1828, for $23. August 4th 1828, for $36. December 13th 1828 for $65. February 2d 1829, for $50. June 22d 1829, balance of bond in full. Bond payable 1st May 1828, for $400, with the receipts thereon endorsed, dated June 22d 1829, for $240. December 26th 1829, $130. March 31st 1830, balance of bond in full. Bond payable 1st May 1829, for $400, with the receipts thereon, dated June 12th 1830, for $55. December 8th 1830, $200. February 5th 1831, $55. October llth 1831, balance of bond in full. Bond payable 1st May 1830, for $400, with the receipts thereon, dated 6th December 1831, for $55. March 6th 1832, $180. June 6th 1832, $200. September 7th 1835, $5.66, and $6.72, January 18th 1837. Bond payable 1st May 1831, for $400, with receipt thereon en- dorsed, dated September 7th 1835, $190.46. January 18th 1837, $228.66. February 8th 1837, $106.37, in full. To the admission in evidence of all of which receipts, (prior to the 27th March 1834,) except the five last, defendant objected, that they were more than six years before suit brought, and were barred by the statute of limitations, which objection the court overruled, and admitted the evidence, to which defendant's coun- sel excepted. David Ferguson sworn. Thomas Finney told me he had sold a tract of land in the year 1825 for two dollars per acre? there was 122 acres of it. I made a deed to Thomas Finney for the land. He told me he had sold the land, and received the money for it, more than six years before this suit was brought. To this evi- dence, as being of the same nature as in first bill of exceptions, defendant's counsel objected. The objection overruled, i. 15 K* 114 SUPREME COURT [Harrisburg [Finney v. Cochran.] Record of suit in Dauphin Common Pleas, of November 7th 1823, No. 56. Record of suit in same court of November 7th 1823, No. 57. Dauphin county, ss. In the record of the.Court of Common Pleas of said county, of November term, 1823, it is thus contained : Mary Milligan ^ Summons in debt on bond not exceed- g 700 dollars. October 17th 1823, David Ferguson, Mary Milligan v. Samuel Finney and David Ferguson, Esq. Scire facias to Ann Finney, Thomas Finney, and William Finney, administra- tors of Samuel Finney, deceased, to make them defendants in the room of said Sa- muel Finney, deceased, who was a de- fendant in this suit. Con. November 26th 1823, Fisher appears for the administrators of Samuel Finney deceased, and pleads that no scire facias can issue in this suit, there being a surviving obligor. ary i igan Summons in debt on bond not exceeding 11. O David Ferguson and * dollars - ^ 17th 1883 ' statement Samuel Finney. J Fisher appears for David Ferguson, prays oyer of writ. Count and imparls specially. The death of Mary Milligan suggested. And now, to wit, 18th of March 1840, David Ferguson, the surviv- ing defendant in this suit, confesses judgment for plaintiff for the sum of eight hundred dollars, with interest from 7th of April 1822, with release of errors. Mary Milligan I!. David Ferguson, Esq. Samuel Finney. 57 Nov. 1823. Scire facias to Ann Finney, Thomas Finney, and William Finney, administra- tors oif Samuel Finney, deceased, to make them defendants in the room of said Sam- uel Finney, deceased, who was a defend- ant in this suit. Fisher appears for the Administrators of Samuel Finney, deceased, and pleads that no scire facias can issue in this suit, there being a surviving obligor. David Ferguson. I was principal in one of these bonds, the one in which I confessed a judgment on the 18th of March 1840 : that debt I have never paid. May 1841.] OF PENNSYLVANIA. [Finney v. Cochran.j Cross-examined I cannot recollect that I confessed a judgment one year ago in this suit. Defendant's evidence : Single bill, dated 19th of April 1822, payable sixty days after date, with interest from date. David Ferguson to Samuel Finney, for 212 dollars 25 cents. Note, dated 9th of February 1825, drawn by David Ferguson, 1200 dollars, payable sixty days after date, at the Harrisburg Bank, to the order of Thomas Finney, and endorsed by Thomas Finney, with endorsement on back, " paid at bank by Thomas Finney, the endorser, 15th of June 1825, principal and interest 1212 dollars 80 cents. H. Alward, teller." Single bill, dated 7th of August 1823, for 91 dollars, with interest from date, payable by David Ferguson, to Thomas Finney. Note, dated 19th of February 1823, for 135 dollars, payable on demand, by Samuel Finney, David Ferguson, and Thomas Fin- ney, to Mathew Hume. Note, dated 1st of September 1824, for 40 dollars, with interest. David Ferguson to Thomas Finney. David Ferguson. (Mathew Hume's note shown to him.) I may have got all the money called for in this note ; it is possible I may have got it ; I don't say I did not get it. It is possible I may have got it. (Defendant's book shown to witness.) The 12 dol- lars charge got from Stouts, I don't deny that it is not correct ; lOdollars, 16th of June 1832, 1 think it is correct ; 6 dollars 77 cents in 1824, I think it correct ; 7 dollars charge for two pigs bought at Shade's, correct. Finney gave me at one time 10 dollars at his own house. I told Mr Finney, that in collecting these bonds, to be as easy and indulgent with Mr Brown as he could. I know that Mr Finney had to go to Lebanon about these bonds. De- fendant, after showing that this suit was brought 27th of March 1841, closed. Plaintiff then gives in evidence a credit, in Thomas Finney 's account on estate of Samuel Finney, of 151 dollars 20 cents, paid Mathew Hume, and his final account on which balance decreed on llth of February 1836, in favour of accountant of 613 dollars 72 cents. The Court thus charged the jury : This is an action for money had and received by plaintiff against defendant, and the plaintiff's claim arises on two receipts which have been given in evidence, and a construction of those receipts decides one question of law raised in the cause. By virtue of those receipts the defendant, Thomas Finney, be- came the trustee of David Ferguson, for a particular and speci- fied purpose ; that was, to collect this money and pay it or retain it on certain debts due from the said Ferguson to said Finney and his father also, the sum for which Samuel Finney was bail. 116 SUPREME COURT [Harrisburg [Finney v. Cochran.] The defendant alleges, by way of defence, that the statute of limitations is a bar to a recovery of all the money received on those bonds, prior to six years from the 27th March 1840, when this suit was brought. We instruct you as a matter of law, that the statute of limita- tions, under all the facts in this cause, forms no defence here, but the defendant must be charged with all the money he received on those bonds, and interest on the same from the time he received the money, deducting therefrom a reasonable compensation or commission for the collection of the same. For this he ought to have an honourable compensation. A trustee or administrator in ordinary cases would be allowed five per cent. The court think the jury ought not to allow him less than five per cent ; they may allow him more if they please, as much more as they think will pay Finney for his trouble. He is also to be charged with the 122 dollars, the purchase money of the land; and he must be allowed a commission for that as a compensation for his trouble. Mr Finney is likewise entitled to a credit on all the notes due by Ferguson to him, and what he owed Samuel Finney, the father of defendant. But we say that no money can be retained by defendant for the bond where Samuel Finney was bail to Mary Milligan. We in- struct you as the law of the case, that the estate of Samuel Fin- ney is discharged from any legal claim on the part of Mary Mil- ligan. That by her bringing a suit against David Ferguson and Samuel Finney, jointly, she made them joint obligors, and Sam- uel Finney dying pending the suit, and the plaintiff accepting the judgment of the co-obligor, this is a discharge of the estate of Samuel Finney, and therefore, under the facts disclosed, the de- fendant cannot retain any thing out of this money to secure that estate against any liability on that account this obligation has ceased. The only matter of fact in dispute is in relation to the note given to Mathew Hume by Samuel Finney, David Ferguson, and Thomas Finney. If the jury believe this was the debt of David Ferguson alone, then Mr Finney is to be credited with the whole. If you believe it was the debt of Samuel Finney, and David Fer- guson and Thomas Finney were the bail, then defendant can be allowed only the one-half. Errors assigned : 1. The court erred in admitting in evidence the receipts of mo- ney prior to 27th of March 1834, as specified and set forth in the bills of exception. 2. The court erred in charging the jury, that by virtue of these receipts (to wit, of the 29th of March, and 5th of May 1824) the defendant, Thomas Finney, became the trustee of David Fergu- son, so as to defeat the operation of the plea of the statute of lim- May 1841.] OF PENNSYLVANIA. 117 [Flnney v. Cochran.] itations, as to all payments to, or receipts of money by him, on the bonds given in evidence, prior to 27th of March 1834 ; inas- much as if this is to be considered in the nature of a trust, it is not " one of those technical and continuing trusts, which are not cognizable at law, but fall within the proper, peculiar and exclu- sive jurisdiction of chancery." 3. The court erred in charging the jury, " that the statute of limitations, under all the facts in this case, forms no defence here, but that the defendant is to be charged with all the money he received on those bonds, and interest on the same, from the time he received the money," as also the sum of 122 dollars purchase money of the land ; inasmuch as neither in point of law or fact, was there any thing to defeat the operation of the statute of limi- tations as to all payments made to, or receipt of money by de- fendant, on those bonds, except the sums of $5.66, and $19.46 on the 7th of September 1835; $6.72, and $228.66, 18th of January 1837, and $106.37 on the 8th of February 1837. 4. The court erred in charging the jury, that " no money can be retained by the defendant for the bond, where Samuel Finney was bail to Mary Milligan," inasmuch as suits having been brought against Samuel Finney in his lifetime, and afterwards against his representatives, by Mary Milligan, a deduction or fair and rea- sonable allowance for their expense, trouble, and counsel fees, was (under any aspect of that matter) at least allowable. J. A. Fisher, for plaintiff in error, on the subject of the act of limitations, cited 7 Johns. Chan. 90 ; 1 Watts 275 ; 2 Rawle 302 ; 17 Eng. Com. Law 191 ; 14 Eng. Com. Law 313 ; 20 Eng. Com. Law 334. M'Cormick, for defendant in error. The opinion of the Court was delivered by KENNEDY, J. This action was brought in the court below by John Cochran, for his use, in the name of David Ferguson, against Thomas Finney, for money had and received by him for the use of the latter. The first error is a bill of exceptions to the opinion of the court, admitting evidence of the receipt of moneys by the defendant below, more than six years before the commencement of the action. The objection made to the admission of this evi- dence was, that it went to show moneys received by the defend- ant more than six years before this suit was brought ; and as he had pleaded the statute of limitations in bar to it, the evidence was therefore inadmissible. This was certainly no sufficient ob- jection to the admission of the evidence, because the plaintiff might have other evidence to give which would take the debt created by the receipt of the money, out of the operation of the 118 SUPREME COURT [Harrisburg [Finney v. Cochran.] statute; but before he could do this, it was necessary that he should show the previous existence of the debt. The evidence was therefore properly admitted for this purpose. The second and third errors present but one question ; and that is : Was the statute of limitations applicable to any portion of the plaintiff's claim ? The court below held that it was not, and so instructed the jury. In this, however, we are of opinion that the court erred. The opinion of the court seems to have been founded on the idea, that the defendant was a trustee for the plaintiff, and that he received all the money in that character, which the plaintiff sought to recover in this action. No doubt the defendant was a trustee, and as such received the moneys upon the bonds which were committed to his charge by the plain- tiff. The receipts given by the defendant for the bonds, upon which he received the moneys afterwards, show clearly that the trust was express and direct. Every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued, either at law, for money had and received, or in equity, as a trustee for a breach of trust, per Chief Justice Willes in Scott v. Surman, Willes 1 Rep. 404, 405. The reciprocal rights and duties, founded upon the various species of bailment, and growing out of those relations, as between " hirer and letter to hire, borrower and lender, depository and the person depositing, a commissioner and an employer, a receiver and a giver in pledge," are all cases of express and direct trust ; and these contracts, as Sir William Jones observes, (Jones on Bailment, page 2) are " among the principal springs and wheels of civil society." Yet it is perfectly clear that the most, if not all of these cases, as also all of the like kind, come within the statute of limitations ; see Kane v. Bloodgood, 7 Johns. Ch. Rep. 110, 111, where Chancellor Kent, after reviewing the decisions on this subject, has come to the following conclusion : that the trusts intended by courts of equity not to be reached or affected by the statute of limitations, are those tech- nical and continuing trusts which are not at all cognizable at law, but fall within the proper peculiar and exclusive jurisdiction of a court of equity. And he expressly refuses to give his assent to the proposition, that all cases of direct and express trust, and arising between trustee and cestui que trust, are to be withdrawn from the operation of the statute of limitations, where there is a clear and certain remedy at law. The rule thus laid down by Chancellor Kent seems to be recognized and approved in App. v. Dreisbach, 2 Rawle 302, and Lyon v. Marclay, 1 Watts 275 ; and indeed it would seem to be dictated not only by authority but sound policy. The word " trust " is frequently used in a very comprehensive sense ; and to hold that the statute of limitations is not applicable to any cases which may, even with propriety, be denominated cases of trust, would, in a great measure, defeat, May 1841.] OF PENNSYLVANIA. 119 [Finney v. Cochran.j as I apprehend, the plain and manifest intention of the legislature. A great proportion of the money transactions in the ordinary business of life, where no instrument under seal passes between the parties, would be excluded from its operation, and a flood of litigation arise after a lapse of six years, which, owing to the length of time, it would be in many instances impossible to de- termine according to truth and justice between the parties. The trust in the present case was clearly cognizable at law ; and for a breach of it the plaintiff might, at any time, have maintained an action at law, in order to be redressed, if he had not delayed so long as to let the statute interpose a bar to his doing so. The last of the money received by the defendant in discharge of the four bonds mentioned in his first receipt to the plaintiff, was as far back as the llth of October 1831, something more than eight years anterior to the commencement of this action. The whole of the money received on the three first of these bonds, and a part of that received on the fourth, the defendant, by the terms of the re- ceipt which he gave to the plaintiff for the bonds, had a right to retain to reimburse him for the twelve hundred and twelve dollars and eighty cents, paid in June 1825, in discharge of his endorsement for the benefit and accommodation of the plaintiff. But the sur- plus the defendant was bound and ought to have paid or settled in some way with the plaintiff, without delay, after his receipt of it. If he neglected or failed to do this, the plaintiff might have brought his action for the recovery of it immediately, for it had become a debt due to the plaintiff, which the defendant was bound to pay him without even a demand being made for it. His right to maintain such action, therefore, accrued at the time the de- fendant received this surplus ; and from that instant the statute of limitations commenced running, so that the six years, the time allowed by the statute for commencing suit, had run some two years and a half before it was commenced. But as regards the money received by the defendant in discharge of the two bonds mentioned in the second receipt, given by him for them to the plaintiff, it would rather seem that the statute of limitations had not run so as to form a bar to the recovery of it. The amount of the last of these two bonds had been received by the defend- ant within six years before the commencement of the action : and the claim of Mary Milligan not being settled but kept up against the estate of Samuel Finney, deceased, until within six years be- fore commencing the action, the defendant, by the terms of his receipt given for the bonds, had a right to retain the money re- ceived upon them until the estate of Samuel Finney should be clearly acquitted of all liability from Milligan's claim on a bond then in suit against Ferguson and Samuel Finney as bail in the bond of Ferguson ; which would seem not to have been the case, until a judgment was obtained against Ferguson, the plaintiff here, who it appears is the surviving obligor in the bond with 120 SUPREME COURT [Harrisburg [Finney v. Cochran.] Samuel Finney to Mary Milligan, and likewise the surviving de- fendant in the suit brought by her upon the bond against Finney and him, jointly, wherein the judgment was so obtained on the 28th of March 1840, a few days only before the commencement of this action. The fourth error, which is the last, is an exception to that part of the charge of the court, in which they instructed the jury, that " no money could be retained by the defendant for the bond where Samuel Finney was bail to Mary Milligan. We instruct you as the law of the case, that the estate of Samuel Finney is dis- charged from any legal claim on the part of Mary Milligan. That by her bringing a suit against David Ferguson and Samuel Finney, jointly, she made them joint obligors ; and Samuel Finney dying, pending the suit, and the plaintiff accepting a judgment of the co-obligor, this is a discharge of the estate of Samuel Finney, and, therefore, under the facts disclosed, the defendant can not retain any thing out of this money to secure that estate against any liability on that account this obligation has ceased." We can perceive no error in this instruction. The judgment, how- ever, must be reversed on the second and third errors. Judgment reversed, and a venire de novo awarded. Ege against Kauftman. M. and B. being indebted to J. K. a quantity of pig metal, for which he held their written obligation ; J. K. transferred this obligation by delivery to A. K., who afterwards purchased property from A. G. E., and gave him a written pro- mise to deliver to him at the furnace of M. and B. a quantity of pig metal ; and the obligation of M. and B. came into the possession of A. G. E. In an action by A. G. E. against A. K., on his written promise, it was held that the refusal of M. and B. to deliver the pig metal to A. G. E., until he presented their obligation, was not a good defence, and that A. K. was liable on his own written promise. ERROR to the Common Pleas of Cumberland county. Andrew G. Ege against Abraham Kauffman. This was an action on the case in which the plaintiff declared upon the fol- lowing instrument : " Rec'd, 19th Aug. 1839, of A. G. Ege, two horses, valued at one hundred and seventy-five dollars, for which I am to deliver to him at Big Pond Furnace six and three-fourths tons of good forge pig metal, at any time he may call. " ABRAHAM KAUFFMAN." May 1841.] OF PENNSYLVANIA. [21 [Ege v. Kauffinan.] E. Owen sworn. I called at the Big Pond Furnace about the middle of December, 1839. I saw Hatten the manager there, he told me he would not give any pig metal on Kauffman'a account ; there was but a small quantity of metal there, and Hatten told me what was on hand he thought had been sold; Mr. Ege sent a wagon up at the same time for the metal ; it went home empty. Cross-examined I had not Moore's agreement to deliver the iron along with me ; there was an obligation given by Moore & Biddle to KaufFman for the iron, and I think I had it with me at the time. For defendant. John Moore offered as a witness ; objected to by plaintiff; ob- jection overruled ; exception taken, and bill sealed. John Moore sworn. I gave an agreement to Joseph Kauffman to deliver about thirty-eight tons of pig metal for a store I bought ; Kauffman owed a number of persons bills or debts ; and he was drawing orders on me, which I refused to accept unless the original was produced ; when Mr Brandeberry's iron was deli- vered, I gave him a new obligation for the balance after deduct- ing balance ; Barnitz got a portion endorsed on the back of the agreement or note; a portion was given to Michael Ege at the lower forge ; there was still a balance due upon this agree- ment or bill ; the iron to M. Ege was delivered by Kauffman himself. When Hatten managed, I told him not to deliver iron to any person unless they produced my order or due bill in which I agreed to give iron, when so produced to give it ; I understood from A. G. Ege, that he had traded horses for this agreement, and had got it ; there was always iron there whenever anything of that kind was produced to give for it. Hatten was my manager. Cross-examined Three years since the agreement was given ; gave it at Centreville ; Ege had the original, and said afterwards he gave it to Kauffman : I gave the original one myself; don't know of Ege getting iron on the order ; I told Ege I would give iron if original order was produced, but would not give on Kauff- man's order unless it was ; told Ege I would accept order if that was produced ; I told Ege I would not give iron on Kanffman's order, but when the note I gave was produced, I would be bound to give it. Ege told me he had the paper, but never produced it ; I always told Kauffman I would deliver when the order was pro- duced ; I considered it a kind of due bill an agreement to deliver at Big Pond Furnace so much iron. "Rec'd, Aug. 19, 1839, of Ab'm Kauffman, by the hands of Daniel Kauffman, $175 in pig metal, which is in full for the two horses sold him this day. A. G. EGE." John Moore, again. A. G. Ege never got that metal which the receipt calls for at my furnace, i. 16 L 122 SUPREME COURT \Harrisburg [Ege v. Kauffman.] John Hatten affirmed. There was a call made at one time by Mr Ege for metal for Kauffman ; Owens came with the team ; 1 asked him if he had an order, he said not ; I told him I would not give any without an order; he then spoke of metal coming to Kauffman; I told him I did not know of any there for Kauffman. and Moore said I should not give any without an order ; there was metal there, and if he had produced Moore's order, he would have had it; or if he had produced the agreement signed by Moore, he would have got it ; he had told me before about Ege coming with the agreement before Owens came there; think I understood Moore he had given Ege something of that kind ; the third time Ege's wagon came up, Mr Ege was along, and Moore told him he would not give him any iron on Joseph Kauffman's order ; Ege got a load on his own account ; never had any ob- jection, but that this paper must be produced. Cross-examined Moore said he had bought a due bill or note for ten dollars, on Joseph Kauffman's account; Owen wanted a load badly, and I said the iron there was sold, but if he had produced the order I would have given it ; Clever and others were to get iron, and I would not have cared much. Moore, again. After I bought Kauffman's store, I employed him as a clerk; I had a long account with him, and on this account I would not give him iron; I told Ege if he had my agreement I would give the iron if that much was coming ; Ege said he had it, but I never saw it. " Thirty days after demand, we promise to deliver to the order of Joseph Kauffman, at the Big Pond Furnace, thirty-two and three-quarter tons of pig metal. " 32| Tons. " MOORE & BIDDLE. " Carlisle, 22d Aug. 1837." Endorsed on the Paper. " Moore & Biddle will deliver to A. G. Ege, or order, on demand, twenty and three-quarter tons good forge pig metal, balance due of thirty-two and three-quarter tons on the within order. Jos. KAUFFMAN. llth Sep. 1837. Barnitz received 12 tons A. G. Ege 8 " M. G. Ege 6 " o 26~ Balance on 32f tons - - - 6f ." For plaintiff. Edward Ege sworn. I was at my brother's at the time these horses were sold ; my brother called me to witness the papers ; after they were signed, my brother said, " suppose Moore would May 1841.] OF PENNSYLVANIA. 123 [Ege v. Kauffman.] riot give the pig metal" Kauffman said, " if he did not, he would stand for it." Cross-examined This was an exchange of the horses for this order for the metal ; he said if he did not get the metal, Kauffman said he would stand for it. E. Owen, again. This is the order I referred to, when I said that I had it with me ; can't tell whether I had it or not. The counsel for plaintiff requested the Court to charge the jury upon the following points: 1. That upon the contract of Mr Kauffman upon which the suit is brought, it was his duty to make such provision and ar- rangement at the Big Pond Furnace, that the iron therein men- tioned should be delivered upon the demand of Mr Ege, and upon his failure so to do, and if the jury are satisfied that Mr Ege did make the demand, and the iron was refused, the plaintiff is en- titled to recover. 2. That Mr Moore's refusal to deliver the iron until his original obligation to pay it was produced, will not avail Mr Kauffman as a defence in this suit. The Court thus charged the jury: This suit is brought by the plaintiff to recover the value of 6f tons of pig metal, which it is alleged the defendant agreed to deliver to plaintiff at the Big Pond Furnace. The plaintiff relies on two propositions in law, which he says entitle him to your verdict. As to the first point. This is certainly true, if the rights of these parties stood on the written paper exhibited by plaintiff, as entered into on the 19th of August 1839. But there are other circumstances in evidence in relation to this transaction, which you will also remember. It seems Moore and Biddle, the owners of the Big Pond Furnace, gave their note to Kauffman for a quantity of pig iron, to be delivered at their furnace. A portion of this iron was given to several individuals and a balance re- maining due on the note of 6| as appears from a calculation made on the back of it. This note, with the calculation upon it, it seems was handed to Mr Ege at the time the agreement on which this suit is brought was entered into, kept and produced by him on the trial of this cause. You will also recollect that Moore & Biddle's contract for the delivery of the iron was made with Kauffman, and by him handed to Ege. Now, Moore & Biddle were not bound to furnish the iron to Ege on their engage- ment with Kauffman, without being satisfied Ege was really the holder of it. If, then, Mr Ege was in possession of this note, and refused to exhibit it to Moore, and, by reason of this refusal alone, Moore declined to furnish the iron to Ege for Kauffman, Ege cannot visit the failure to receive the iron, occasioned by his own default, upon the head of the defendant, and recover from him its value in damages. 124 SUPREME COURT [Harrisburg [Ege v. Kauffman.J As to the second point. Moore's refusal to deliver the iron, as indicated in this point, would not avail the defendant here, unless his refusal was occa- sioned by the conduct of the plaintiff, as stated in the previous answer to the first point. If Moore was acquainted with all the circumstances of this transaction, or had been advised by Kauff- man of the transfer of his claim, it would have been sufficient ; but Ege alone telling him he had the transfer of the note, was not enough without its production. How the facts are you must de- termine from the whole testimony, and find such verdict as you think right. Errors assigned : 1 . In the first bill, admitting John Moore as a witness. 2. In the answer to plaintiffs first and second points. Watts, for plaintiff in error. Biddle, for defendant in error. The opinion of the Court was delivered by SERGEANT, J. The facts of this case are so obscure, that it is difficult to be clearly understood. It would seem that in August 1837, Moore and Biddle, iron masters, gave to Joseph Kauffman (not the defendant) an agreement in writing, to deliver to him, in thirty days after demand, at their furnace, 32 tons of pig metal. On the llth of September 1837, Joseph Kauffman en- dorsed thereon an order on Moore & Biddle, to deliver to A. G. Ege, (the plaintiff,) on demand, 20f tons good forge pig metal, balance due of 32f tons on the within order. There is further endorsed on it, without date, a receipt by Barnitz of 12 tons, A. G. Ege 8 tons, M. G. Ege 6 tons ; showing a balance on the 32f tons of 6f tons. This order, it would seem, was delivered to the plaintiff, but at what time does not appear, nor when Barnitz received his 12 tons, though it would appear that Barnitz must have received the 12 tons before the endorsement, for it states that 20f tons were then the balance due. In August 1839, the defendant, Abraham Kauffman, received two horses from the plaintiff, and in payment gave him his agreement in writing to deliver to him at Moore & Biddle's furnace, 6f tons of metal, at any time he might call. This, it is to be observed, was a positive engagement on the part of the defendant, binding himself person- ally to deliver at the furnace, when called for, 6f tons, without any condition to be performed by the plaintiff. The plaintiff, under these circumstances, sent a person to the furnace, with the agreement of August 1839, to demand the 6f tons. Moore & Biddle refused to deliver them, unless the origi- nal agreement of August 1837 were produced and surrendered to them ; and the question is, whether the non-production to Moore May 1841.] OF PENNSYLVANIA. 125 [Ege v. Kauffman.] & Biddle by the plaintiff of the original agreement is a sufficient excuse to the defendant in this action. If the demand of the 6f tons by the plaintiff had been on Moore & Biddle, under the original agreement as assignee or holder, it would have been the duty of the plaintiff to produce it to them before they could be sued for refusal to deliver the iron. But if the demand of the iron was under the agreement of 1839, which was the defendant's agreement, and not that of Moore & Biddle, it would be the duty of the defendant by that agreement to deli- ver the iron without the plaintiffs producing the first agreement, unless the defendant could show that the plaintiff had in some way engaged himself to do so. For such is the tenor of the writ- ten contract of 1839, and we cannot introduce terms not contained in it. It wpuld seem that though the plaintiff had an assignment of the agreement of 1837 from Joseph Kauffman, yet, for some reason or other, it was not deemed effective, for he obtained in payment of the horses, a new and distinct engagement from the defendant, Daniel Kauffman, of what seems to be the same 6f tons of pig iron, which was the balance due on the agreement. The reasons of his doing so are not apparent. The objection to the plaintiff's recovery is of a strict kind, and goes to defeat his claim if the verdict stands. It ought, therefore, to be clearly shown that the defendant was absolved from his engagement to deliver the iron, before the objection should be sustained. The mere pos- session by the plaintiff of the original agreement, without any further circumstance, does not seem to be sufficient for that pur- pose, as the defendant might have provided, by some arrangement with Moore & Biddle, that the plaintiff's demand should have been complied with by them ; and the onus of that must be con- sidered as assumed, under the written agreement of 1839, by the defendant, and not by the plaintiff. We think there was no error in the admission of Moore as a witness for the defendant. It does not appear that he is in any way interested in the event of this suit. Judgment reversed, and a venire facias de now awarded. I. L* 126 SUPREME COURT [Harrisburg Lehman against Jones. Where the maker of a promissory note has absconded from his usual place of residence before the time of payment, it is not necessary to prove an inquiry for him there, and an effort to obtain payment, in order to charge the endorser. But it is otherwise where the maker has merely removed from his place of residence. ERROR to the Common Pleas of Lebanon county. A. J. Jones and J. Cameron & Co., against John Lehman and William Stroh. This was an action of assumpsit, in which the plaintiff filed the following statement. The plaintiffs, by their attorney, Jacob B. Weidman, state, that the above suit is brought to recover the sum of three hundred and five dollars and sixty-two cents, which they the said plaintiffs paid as endorsers of said John Lehman, Jun., and William Stroh, on a note drawn by K. Robinson, and discounted by the Harrisburg Savings Institution. That said note was drawn by K. Robinson on the 18th of November 1835, payable in 90 days after date to the order of John Lehman, Jun. and William Stroh, for three hundred dollars, without defalcation, for value received. That the said A. J. Jones and J. Cameron, at the special instance and request of the said John Lehman and William Stroh, put their names on the back of the said note as endorsers, to induce the said Harrisburg Savings Institution to discount the same, which was done accordingly. That the note was regularly protested for non-payment, of which the said K. Robinson, John Lehman and William Stroh had notice. Cost of protest $1.37. That the said A. J. Jones and J. Cameron paid for them, the said John Lehman and William Stroh, to the said institution three hundred and five dollars and sixty-two cents, debt, interest and costs, on the 14th of May 1836; which sum of three hundred and five dol- lars and sixty-two cents I verily believe to be due by the defend- ants to the plaintiffs, with interest thereon until paid. After proving the execution of the note by the drawer and en- dorsers, the plaintiffs offered the same in evidence, dated 18th of November 1835, for 8300. Note read, endorsed John Lehman, Jun., and William Stroh. Protest then offered in evidence, dated 19th of February 1836, by M. M'Kinney, Notary Public, with the notarial seal affixed to it. Protest objected to, on the ground that it does not certify any material fact, which the law requires ; and does not certify that a demand was made upon the drawer of the note ; and does not cer- May 1841.] OF PENNSYLVANIA. 127 [Lehman v. Jones.] tify the method in which notice was given to the endorsers ; nor to where notice was sent to them ; and that the notarial seal is not such as the law requires. The court overruled the objection, and admitted the protest in evidence ; the counsel for the defendants excepted. The plaintiffs then called Margaret Robinson, and offered to prove by her, that the drawer of the note, Robinson, absconded, and left the state shortly after the date of the note, and before it became due, and that he has not since returned : to show that they were excused from making any demand from the drawer. Defendants object, because it is irrelevant, and insufficient to dispense with a demand on the drawer, or search for him ; and also that it is not evidence under the statement filed. The court overruled the objection, and admitted the evidence. The counsel for the defendants excepted. Margaret Robinson sworn. I am the mother of Dr K. Robin- son ; he lived in Jonestown in December 1835, Lebanon county ; he had a wife and kept house ; he went away the 12th of Decem- ber 1835. He brought his wife to Lebanon a few days before he left. She left Harrisburg when he did. She went from here to Harrisburg, to meet him. He left about threeo'clock in the morning. I did not know he was going away ; he told me he was going to Harrisburg, and would return the same day. I have never seen him since. He never returned to Jonestown afterwards. He went to the west. The first place I heard of him he went to Dela- ware, Ohio. I got a letter about a year after he left. The note was discounted on the 21st of November 1835, at the Harrisburg Savings Institution ; the proceeds went to the credit of K. Robinson, the maker. They were drawn on the 23d of November by K. Robinson's check ; and the note was paid by A. J. Jones and Cameron, on the 14th of May 1836, 8305.62, en- dorsed by Jones and Cameron. The court below thus instructed the jury : PARSONS, President. The court instruct the jury, as a matter of law, if they believe that Robinson absconded in December 1835, as testified to by his mother, and did not return before the note became due, nor since, it was not requisite that the holders of the note should go to Jonestown, and attempt to make a de- mand upon him, in order to charge the endorsers ; provided the endorsers were cognizant of the fact that the drawer had left the state, of which there would seem to be no doubt, if the testimony of Mrs Robinson is believed. L. Kline and E. Pearson, for plaintiffs in error, cited 3 Whart. 121 ; 10 Watts 130. Foster and IVeidman, for defendants in error, cited 4 M'Cord 503 ; 4 Mass. 45 ; 6 Mass. 451 ; 8 Mass. 260 ; 9 Wheat. 598. 128 SUPREME COURT [Harrisburg [Lehman v. Jones.] PER CURIAM. The rule in Lambert v. Oakes (1 Lord Raym. 443) is, that the holder must have demanded, or done his endeavour to demand the money. But the law is not so unreasonable as to require an impossibility : and therefore it is said (id Anon. 743) that where the drawee of a bill has absconded before the day of pay- ment, notice of the fact is equivalent to notice of demand and dis- honour. In Duncan v. M'Cullough (4 Serg. < Rawle 480) the prin- ciple was recognised as being applicable to a promissory note ; and it has been established by direct decision in some of our neigh- bouring states. It would have been idle for the plaintiffs to de- mand payment at the late residence of Robinson, the drawer, after he had absconded. Where, indeed, the drawer of a note or the drawee of a bill has merely removed from the place of his residence indicated by the bill, it is the business of the holder to inquire for him and ascertain where he has gone, in order that he may follow him ; but when he has secretly fled, an application at the place would lead to no information in respect to him, and the law requires nothing which is nugatory. The other errors are either resolvable by this principle, or are plainly unfounded. Judgment affirmed. Smull against Jones. Lien creditors, as well as others, may purchase jointly at sheriff's sale, if all be open and fair. A combination of interests for that purpose is not necessarily corrupt. It is the end to be accomplished which makes such a combination law- ful or otherwise : if it be to depress the price of the property by artifice, the pur- chase will be void ; if it be to raise the means of payment by contribution, or to divide the property for the accommodation of the purchasers, it will be valid. If a purchaser at sheriff's sale participate in a fraudulent contrivance, by which he was enabled to become the purchaser, in an action of ejectment against him for the property purchased, it is not necessary that the plaintiff should offer to refund the amount which was bid at the sheriff's sale and paid for the title. ERROR to the Common Pleas of Dauphin county. This was an action of ejectment for a nouse and lot in Harris- burg, by John Smull against Andrew J. Jones, Theophilus Fenn, William E. Camp, and the Harrisburg Savings Institution. The title to the property in controversy was in John Smull, the plaintiff. The defendants gave in evidence the record of judgments against John Smull, executions thereupon, and the sale of the property by the sheriff to Andrew J. Jones & Co., and the sheriff's deed, May 1841.] OF PENNSYLVANIA. 129 [Smull v. Jones.] dated 26th of November 1838, for the consideration of $6680. Also a deed of the 20th of February 1839, by Andrew J. Jones and wife, to Theophilus Fenn, for the one undivided half of the property. The plaintiff alleged that this sale was fraudulent, and vested no title in the purchaser ; and to support this position he gave the following evidence: John Snevily sworn. The property belonged to John Smull. He owed me a considerable sum of money. I intended to buy the property the first time it was sold, when Mr Burke bought it. I bid on it. I had not money enough to buy it, and stopped bid- ding. I spoke to Mr Burke about it after the sale. Mr Smull came to me with tears in his eyes. I examined the papers, and found the sale could be set aside. Mr Jones had a claim, and Mr Fenn had a claim ; they seemed to say they would give more ; they told me they would, and signed a paper to that effect. I employed Mr M'Clure and Mr Ayres (paper shown this is the paper, 3d of September 1838) to have sale set aside. The sale was set aside. The day of the second sale, in the morn- ing, Mr Martin and I met at Smull's corner ; said he wanted to buy the house, but had not the money. Martin and I went to Jones ; Mr Martin agreed to take one-fourth of the property, and I was to take one-fourth, Jones one-fourth, and one-fourth Fenn was to take, and I was to take Martin's note for his fourth. Fenn was not present. We agreed that Jones should buy the property in before dinner. I met Fenn ; he told me Jones wanted to see me about this property. I asked him what conclusion they had come to about what he would pay for it. He said it would take about $16,000 to pay his (Fenn's) judgment. He said we would not let it go under $16,000. It was supposed it would go up to that. I saw no more of Martin that day. Jones and I went to the sale. I did not bid on it, but noticed the bids to know how- it was going up. It was struck off for less than we had agreed to buy it for. It did not cover any more of my judgments than Burke's purchase did. It covered a few thousand dollars. The $16,000 would have covered all my judgments. I went back in the evening, after dark ; Fenn was in the store, and Jones gave me the paper, this is it, dated 6th of October 1838. Jones said I had bought some of these judgments for less than their face, and he thought he should have an interest in them. I agreed that he should. It was understood that they should be paid, and Mr Fenn's out of the sale. I told Smull if I got the property I would release the property. My judgments were not paid by the sale ; but if the property is worth $16,000, my judgments are paid. Plaintiff offers to prove by this witness that Jones and Fenn have denied that Snevily had any interest in the property, and on the trial before arbitrators, said he had not given any paper acknowledging the interest of the witness ; and have refused to i. 17 130 SUPREME COURT [Harrisburg [Smull v. Jones.] go into the arrangement and pay Snevily's judgments ; this offer- ed in connexion with the paper, dated 6th of October 1838. The counsel for defendants objected to the evidence. The court sustained the objection, and rejected the evidence all but the paper. Counsel for plaintiff excepted. Copy of paper in evidence above referred to. " It is understood that John Snevily is equally connected with me in the purchase of the Smull property. "A. J. JONES. " October 6, 1838." A great many were present when Jones and I stood there. Mr Jones said the property would be bid up to $16,000. It was gen- erally understood that we would buy it, because we were all join- ed in setting the sale aside. John Stahl sworn. I was the deputy sheriff at the time of this sale. The property was put up to sale, and knocked down to A. J. Jones & Co. The conditions of the sale were drawn out by me and signed by A. J. Jones & Co. " Signed A. J. Jones & Co." A few days after the sale Mr Jones asked me to make out the deed in his own name. I replied that I could not, or would not, but must follow the conditions of sale. Michael Burke was at the sale. A good deal of conversation between Snevily and me about the sale of this property. John Snevily said they had entered into an arrangement to pay $16,000 for the property. This was a day or two before the sale. Before the deed was ac- knowledged, Snevily called at the office to see what was the fourth part or share of the purchase money. He was answered by stat- ing that Jones had left a check for the full amount of the purchase money. This was before the acknowledgment of the deed, and after Jones told me to make the deed to him. The sale was fairly and openly conducted, and ample time was given for all bidders. I do not remember who the other bidders were. A great many persons present. My impression is the tavern-house was first sold. I saw Martin during the day. Charles L. Berghaus sworn. I was in the office of Mr Snevily on the day of the sale. Mr Martin came in there and went in the back room and came out ; Snevily said, " Martin, I want you to repeat the bargain between Jones, Fenn, yourself, and myself." It was the morning before the sale. He said they had agreed to pay $16,000 for the property, whether it brought that at the sale or not, in order to satisfy me, Snevily's judgments, and the judg- ments of the other parties against the property. This was the arrangement among themselves. Martin had some arrangement with Snevily. Snevily was not to bid ; but if the property did not bring $16,000 they were to pay $16,000 any way in order to satisfy Mr Snevily's judgments. This was the day of the sale May 1841.] OF PENNSYLVANIA. 131 [Smull v. Jones.] that this conversation took place. I was not at the second sale. I knew of the sale. The object of this arrangement was to save their judgments, so that Snevily should be satisfied. The fixing the arrangement amount at $16,000 was among themselves. The tavern-stand was referred to in the office. I asked Snevily why he did not bid it up to the $16,000 at once ; he said, because there were some intermediate judgments, and they would have them to pay ; but if they got the property, the $16,000 would cover all his judgments. John Snevily again. If the arrangement had not been gone into I would have bid it to $16,000, if any person had bid against me to that amount, if it had gone as high as that, to cover my own judgments; if it had not gone so high, it was not to be bid to $16,000, unless there were opposing bidders ; but if it was bid up it was to bid to cover Fenn's judgments; my judgments were to be paid out of the property. The property was to be esti- mated at $16,000, and bid to that amount. If we bought the pro- perty each was to have the amount of his judgments. This bid of $16,000 for all the property. I agreed to release Smull of my judgments. This was between Smull and me; but there was no- thing said about its effect upon Smull in this arrangement. Jones was to bid up to the amount of my judgments, Fenn said $16,000. Jones was to bid to the amount of Fenn's judgments and mine. The agreement was, that Jones was to bid off the property to save our judgments. Fenn fixed the estimate at $16,000. I had made up my mind to cover my judgments against Smull ; and they were to be paid out of the property. After the sale, some time after Jones gave the paper, he thought my judgments ought not to be paid. Some of my judgments were the first, and some the last on the property. Mr Jones had paid me no part of my judgments. Mr. Smull has paid me $400 on those judgments. P. C. Sedgwick sworn. Mr Snevily told me of this arrangement, and I think Mr Fenn told me about it. My impression is that Fenn told me, but am not certain. I understood these four men were going to purchase this house and property, and they were to give $15,000 or $16,000; that was the arrangement among themselves. They were to bid it to that sum if mere were op- posing bidders. This was before the sale that I knew it. It was a matter spoken of among business men. If it was not bid to $16,000, they were to pay each other's judgments to that extent. Berryhill Bell's deposition. Two years ago last fall, at the time John Smull's tavern-stand was sold, I had some thoughts of pur- chasing the property, and mentioned it to John Snevily some time before the sale; he told me, they, as witness understood, the judg- ment creditors, would put it up to $15,000 or $16,000. In con- quence of this I did not attend the sale, as that was more than I intended to give for it. I think I had some conversation with Theophilus Fenn pending the motion to set aside the former sale. 132 SUPREME COURT {Harrisburg [Smull v. Jones.] He wished me to attend the second sale and bid for it ; but after- wards I had the conversation referred to with Mr Snevily, and did not attend the sale. I thought it was not worth while. I have no recollection of having any conversation with any of the other judgment creditors. I understood Mr Snevily when he used the word " they" to refer to the other judgment creditors. Question. What sum had you a mind to bid for the property had you attended the sale ? Answer. Between $12,000 and $13,000. Question. Were you in Dauphin county at the time of the sale? Answer. I was ; I lived about fifteen miles from Harrisburg. Question. Who was present when you had the conversation referred to in your deposition? Answer. I do not remember any person being present. Question. Did you know all the judgment creditors and their amounts ? Answer. I cannot say that I did. I knew Snevily, Jones, and Fenn were judgment creditors, but not the amount. I under- stood that Mr Trimble had a mortgage, or owned part of the pro- perty. Achison Martin's deposition. I think on the day of sale, or the day before, of John Smull's property in Harrisburg, it was the tavern-stand and other property, John Snevily called me into the house and asked me whether I would buy the property ; I told him I did not know. He called me into the back-room, and then told me that if I would go in with them, Snevily and Jones, and he might have mentioned some other names, I don't recollect ; he then showed me some judgments against John Smull, and told me that if I would go in with them to buy the property, he would give me time to pay my part of the judgments. I don't recollect whether I 'mentioned to him or he mentioned to me, that the pro- perty was to bid up to $ 16,000; then Snevily told me that he would take my notes for my part. Snevily and I went from there to Mr Jones's store ; Snevily then told me that Mr Jones was go- ing in along. Mr Jones was in the store. Mr Snevily went up to him and spoke to Mr Jones, told him that I was going in along. Mr Jones said that he had no objection. Snevily said to Mr Jones that he was agoing to take my notes. They then commenced talk- ing about it, and I stepped aside. Snevily then told me that Mr Jones was to bid on the property ; that he would bid it up to $16,000. There was something more said, but I don't now re- collect what it was. I think Mr Jones and I had no conversation about this matter before the conversation Snevily and I had. I had no conversation or correspondence with Mr Fenn before the sale of the property. I think I might have thought to buy the property ; but I know that I would not have bought it. I told John Snevily that I have some money coming to me ; that if I May 1841.] OF PENNSYLVANIA. 133 [Smull v. Jones.] could get my money, I might buy the property. I think I told him that if I had all my money I would buy it ; I think I told him that I could raise the money, but I am not certain. I talked to Snevily about raising the money ; I might have told him I could raise the money in a short time, but don't recollect. I don't re- collect whether this last conversation was before or after Snevily groposed to take me in as a partner. I understood from Mr nevily that it was the tavern of John Smull, and a lot connect- ed with the tavern which was to bring $16,000. He mentioned something about other property ; all was to go to $16,000. I don't think that I would have bid on the property if there had been no arrangement between Snevily and Jones ; I might have thought of it. Cross-examined I was not present at the sale. I was not kept away from the sale by any thing that happened between Jones and Snevily. Jones was not present at the conversation between Snevily and me. I don't recollect of Jones making any agreement, except that he was satisfied with my going in. I don't recollect that Jones said that he would bid on the property. Snevily told me that Jones was to bid on the property. I don't think that Jones said that Snevily was to be interested in the property. Mr Jones might have said something else about it, but don't recollect what he said. I don't think Mr Jones said who were to be partners, or what shares they were to have, but I thought from what Snevily said, it was to be us three ; I did not consider that I was bound from what happened at Jones's store to go into the pur- chase. I did not hear Mr Jones make any bargain with Mr Snevily or myself, except what I have stated. I did not hear Jones say what part Snevily was to have, but I thought us three were to buy it. I don't recollect that I heard Mr Jones say what the property was to be bid to. I don't recollect that it was men- tioned in the store that the property was to be bid up to $16,000. It might have been mentioned. I don't know that I ever heard Jones say that he would bid the property up to $16,000. I ne- ver asked him, that I recollect of. Since the sale I made no claim to the property, and did not care any thing about it, and never troubled myself any thing about it. I think Mr Fenn's name was not mentioned in reference to the property, that I recollect. It might have been mentioned. I did think that I might be disap- pointed in getting my money, and thought it would not suit me to buy the property. (Question ; do you know of any fraud on the part of Jones ? Question objected to.) There might have been, and might not have been ; I don't know of any. (Question by plaintiff's counsel ;) Jones did not say in the store that neither I nor Snevily should have a part of the house. The plaintiff then gave in evidence that the first sale to Michael Burke was for $4470, and that it was set aside by the court on the following offer : i. M 134 SUPREME COURT [Harrisburg [Small v. Jones.] " September 3d 1838. In the case of the tavern establishment of John Smull, and sale of the same by the sheriff. " In the event of the court setting aside the sale by the sheriff, we promise to bid in case of a resale $1500 more than it sold for to Michael Burke, and engage and promise to pay the same to the sheriff of the county. " THEOPHILUS FENN, " JOHN SNEVILY, " A. J. JONES." The sale was made subject to a mortgage for $6000. The plaintiff also gave in evidence the record of many judgments not covered by the sheriff's sale of the property to the present defend- ants. It also appeared that Mr Smull took exception to the acknowledgment of the deed to the present defendants, but the exceptions were overruled. The court thus charged the jury : This is an action of ejectment brought to recover certain valu- able property in this town, of which the plaintiff was the original owner, and which was sold on judgments against him by the sheriff of this county. There is no dispute about the respective titles of the respective parties on the face of the papers, and that so far as a paper title is to decide the cause, the defendants have a superior claim. The counsel for the defendants have submitted a point of law on which they ask a specific direction to the jury, which, if an- swered in their favour, relieves the jury from all embarrassment, and from drawing any conclusions from the parol evidence. It is in these words : " That if they believe the testimony of John Snevily and the other witnesses, and testimony in the cause, the plaintiff has not proved a fraud that will vitiate the defendants' title, and the plaintiff cannot recover." The court answer this in the affirmative, as follows : If the jury believe that Jones, Fenn and Snevily were judgment creditors of Smull, and they entered into such an arrangement as has been testified to by Snevily to bid the property up to $16,000, its full value, to secure their claims and judgments, (provided there were opposing bidders) and they to become tenants in common of the property should it be stricken down to them, or one of them, it is not such evidence of fraudulent combination to suppress bidding at the sheriff's sale as renders it void in law, or would authorize the plaintiff to reco- ver under the facts now disclosed. Their object seems to have been the security of their debts or judgments against Smull, and not to oppress him, or to prevent any one from bidding. Jones was to bid the property higher than he did, if there were others who wanted the property. It seems from the record that they had various judgments upon the docket, interspersed among the liens of others. The property was valuable, would command a May 1841. OF PENNSYLVANIA. 135 [Smull v. Jones.] high price, and probably no one of them felt able to pay so large a sum of money ; but if he took an interest in the property in- stead of the money on his judgment, and became interested with others, he could secure his claim, and on a future sale of the pro- perty on credit, he might eventually get his money. It is not a fraud on Smull. It seems from the record that more than $5000 was paid into court, and distributed among the creditors of Smull. The deed was acknowledged, his legal title was taken away, and he now asks to be relieved from the effect of that sale. He has not tendered the money to Jones. He has not brought the money into court and offered it here, but seeks to recover the property, take the $5000 to pay his debts, as it has been applied thereto, on such a case as is presented. This court think, as the case now stands before the jury, he ought not to recover against these defendants. Errors assigned : 1. The court erred in charging the Jury, that if they believed the testimony in the cause, the plaintiff did not prove a fraud that would vitiate the defendants' title. 2. The court erred in the charge by stating that it was neces- sary for plaintiff to have made a tender before suit brought of the purchase money to defendants, and to have brought it into court to entitle him to recover. 3. The court erred in rejecting the evidence proposed to show that Jones and Fenn have denied since sale that Snevily has any interest in the property, and that Jones has also denied the sign- ing of any paper acknowledging Snevily's interest. 4. The court erred in charging the jury as follows, speaking of defendants Jones and Fenn : " Their object seems to have been the security of their debts, or judgments against Smull, and not to oppress him or to prevent any one from bidding." Roberts and Rawn, for plaintiffs in error. The effect of the arrangement between Snevily, Jones, and Fenn, was to prevent a competition in bidding, and therefore frau- dulent, 1 Story's Eq. 290 ; 3 Johns. Cas. 29 ; 4 Johns. 254 ; 6 Johns. 194 ; 8 Johns. 444; 13 Johns. 112; 2 Hammond Rep. 510. (Ohio). If the sale was fraudulent, no title passes, and therefore no ne- cessity for making any tender of purchase money. 2 Watts 67 : 10 Watts 139. M'Cormick and M'Clure, for defendants in error, Contended that an agreement among creditors to bid up the property offered for sale by the sheriff was not fraudulent ; and this was nothing else. It appeared that Smull gave for the property about 9540, and that the sale by the sheriff to the present defendants was for about $13,000, including the mort- gage to which it was sold subject. Cited, 4 Yeates 341; 11 Serg. 136 SUPREME COURT [Harrisburg [Smull v. Jones.] ty Rawle 141. Fraud is a question of law to be decided by the court. 9 Johns. 337. But in this case it appeared that Mr Smull excepted to the sheriff's sale and confirmation of it by the court ; and this is conclusive. The opinion of the Court was delivered by GIBSON, C. J. It is not to be doubted that lien creditors, as well as others, may purchase jointly at sheriffs sale, if all be open and fair. A combination of interests for that purpose is not neces- sarily corrupt ; and if it be forbidden, it must be by some princi- ple of public policy. It certainly has an influence on the biddings, by suppressing competition ; but it often does less harm than good. It does no good where the property is put up in small lots ; but it may do much where the estate is beyond the means of the bidders singly. Where the debtor or a particular creditor happens to be prejudiced by it, without an improper design, he must bear it as he would a prejudice from a bona fide pursuit of a supposed right ; such as an arrest for a groundless debt, not believed to be such. On the other hand, a combination not for the convenience of the parties in enabling them to cut up the property, if it should be too much for one of them, or in putting their means together, if the price should be too much, but to get the property at an undervalue, by hindering it from having a fair chance in the market, would be fraudulent, just as a combination with a debtor to purchase his property for a full price, in order to keep it from his creditors, would be fraudulent. In neither case would the purchase be the legitimate exercise of a right, but an abuse of it ; and it would consequently be void. Now, as men may unite for a bad purpose as well as a good one, and as their power to accomplish it is incalculably increased by preconcert of action and combination of means, their motive for it, in such a case as this, cannot be too severely scanned. They may lawfully regulate the course of their bidding beforehand, and as secresy is not in- dispensable to honesty, they may openly declare how high they mean to go, provided the object be not to deceive or deter those who may be their competitors. There is no confidential relation between bidders ; and that being so, the law requires no more of them than fairness of purpose, and that no trick or contrivance be used as a scarecrow. Their interests are necessarily adverse ; and where a person who intended to bid, absents himself from the sale, because he has been told that more will be offered than he is willing to give, it is his own affair. If the property goes below the expected price, his absence is the cause of it ; and if it would have reached it, had he been present, he was not deceived : in either case, who is wronged ? It is, as I have said, the end to be accomplished, which makes such a combination lawful or other- wise. If it be to depress the price of the property by artifice, the purchase will be void ; if it be to raise the means of payment May 1841.] OF PENNSYLVANIA. 137 [Smull v. Jones.] by contribution, or to divide the property for the accommodation of the purchasers, it will be valid ; and on this distinction the cause ought to have been put to the jury. But in answer to a prayer for direction, the judge charged that the plaintiff' had not proved a fraud, and that an agreement by particular creditors to manage their bids so as to secure their liens is not evidence of fraud. This, without adverting to the means to be employed, tended to mislead, by diverting the attention of the jury from those circumstances which furnished a motive for the youngest of those creditors to have the property struck off at the lowest price. It was testified that the judgments of the associates were to be paid out of the actual price, in the proportion which each of those judgments bore to the largest sum agreed to be bid ; the object of which was, to squeeze out the intermediate judgments, by getting the property at a price which would not reach them in the ordinary course of appropriation; but which would, by force of the agreement, give their proportion of what was to be considered the actual price between the associates, to judgments posterior to them. Such an agreement being inconsistent with sound policy, is not to be tolerated; and the jury ought to have been directed to find for the plaintiff, if its existence was made out to their satisfaction by the proof. It is vicious, not because it gives the younger lien creditors a place in the partnership, but because it gives them a bonus for standing out of the way of the particular design ; for it will not be said that a bidder who has bought off his competitors, whether with a share in the specula- tion, or a direct bribe, can hold the property against a debtor who has been injured by it. He might perhaps hold it against another lien creditor, whose business it was to take care of him- self by bidding the property to an amount sufficient to protect him, if it were worth it ; but the debtor has no such preventive means, and whether he be insolvent or not, the consequences to him are the same, because his person and future earnings remain exposed to execution, for at least a part of the debts which ought to have been discharged by his property. There were other cir- cumstances, also, which might have been left to the jury for what they were worth. Snevily offered Martin a share in the purchase, with the assent of Jones, and told him the amount agreed to be bid. Martin, it seems, would not have bid at any rate ; but this desire to bring into the measure those who were supposed to have a view to the property, may cast a ray of light on the motive of those who originated it. The judge, however, committed a very decisive error in relation to this part of the case by rejecting evidence to prove that, since the purchase, Jones and Fenn have repudiated Snevily's claim to participate in it. Snevily testified, that he would himself have bid the property to an amount sufficient to cover all his judgments ; and, to divert him from his purpose, by giving him an interest which would i. 18 M* 138 SUPREME COURT [Harrisburg [Smull v. Jones.] make the execution of it unnecessary, and then to deprive him of the interest when his purpose could no longer be accomplished, would go far to convince the mind that the measure was a lure to keep him from spoiling the game. When it is incumbent on a party, not only to prove the existence of fraud, but to prove it by circumstances, every act connected with the transaction, however remotely, ought to be put before the jury. But to make the transaction fraudulent, in this instance, it must amount to a conspiracy to depress the bidding. There are many acts which are lawful when done by one person, and culpable when done by more than one ; and this, whether the end be gain to the confede- rates, or injury to the party. Of this stamp, is a combination of journeymen to raise their wages, or to work only on certain conditions ; and Hawkins says, (b. 1. c. 72, sec. 2.) there can be no doubt, that all confederacies wrongfully to prejudice another, are highly criminal by the common law. If there has been such a confederacy in this case, it will undoubtedly avoid the sale. Then the jury were told that it was incumbent on the plaintiff, in any event, not only to bring into court the amount which the defendants have paid, but to have tendered it to them before suit brought. But it is to be borne in mind, that the plaintiff's title, if he has any, is a legal one. A covinous conveyance is no conveyance at all against the party intended to be defrauded by it, as was said in Gilbert v. Hoffman (2 Watts 67) and the autho- rities there cited. Where a court of equity has set aside a con- veyance for fraud, it has indeed sometimes directed a reconvey- ance ex majari cautela, as in Barnsley v. Powel (1 Ves. 284) ; but that a reconveyance is unnecessary, is shown by Bates v. Groves, (2 Ves. Jr. 294) ; and Hawes v. Wyatt (3 Bro. C. C. 156). Having a complete title, then, before tender, all that could be required of him, according to Wolfley v. Snyder (8 Serg. fy Rawle 328), would be to have the money in court at the trial. But would he be bound even to do that ? It is a maxim that he who has done iniquity shall not have equity ; and the only apparent exception to it is the case of an offender coming into court for relief, who must himself first do what is right ; but that is on the ground of another maxim, that he who will have equity must do equity : and it is in truth no exception at all. At all events, he can de- mand nothing of a party who stands on a legal title and asks no- thing of him in return ; nor can he get back what he has paid by restoring what he has unjustly gained. The authorities to the point are positive and direct. In the first place, it was so ruled by this court, in Gilbert v. Hoffman, already cited, for reasons not easily to be controverted ; and if the authorities there relied on needed corroboration, many more might be added to them. In Rich v. Sydenham (1 Ch. Ca. 202) a plaintiff who had got a bond from a defendant of 800/., when he was drunk, for 50Z. lent, filed a bill to have the defendant's trust estate in right of his wife May 1841.] OF PENNSYLVANIA. 139 [Smull v. Jones.] subjected to the debt ; but relief was denied him, even for the sum actually due. So, in Warden v. Beresfard (1 Fern. 452), the Lord Chancellor disallowed the defendant's whole claim, only be- cause he had opened a bundle of papers in relation to it, which were entrusted to him for safe keeping, and had at first suppressed some of them, which were however afterwards produced by him. On the same principle is Mildmay v. Mildmay (1 Fern. 53) ; where a husband, who, having granted certain rents to the use of his wife, had bought in the estates of the tenants, by which the rents became irrecoverable at law, was not decreed to make them good, because she had eloped from him, though she offered to return and cohabit with him. The general principle, therefore, seems to be conclusively settled ; but as its application to the case before us was not made a point at the trial or on the argument here, we wish not to preclude discussion upon it, should the cause come up again. For reasons independent of it, however, the parties must go before another jury. Judgment reversed, and a venire de now awarded. Stroop against Gross. Ickes against Smith. Bail for a stay of execution may be taken by the prothonotary, and perfected afterwards by the approval of the court or a judge. The approval is for the benefit of the creditor, and he may waive the necessity of it, either expressly or impliedly ; but neither the debtor nor the bail can take advantage of the want of it. A notice requiring the defendant to plead is tantamount to a notice of a rule to plead, under the rules of court. ERROR to the Common Pleas of Perry county. Daniel Gross, executor of Alexander Gross, who was the guar- dian of the minor children of William Ogle, deceased, and now for the use of Jacob Steel, guardian of said minors, against George Stroop and Samuel Creigh. This was a scire facias against the plaintiffs in error, as absolute bail of John D. Creigh, in a judgment at the suit of the defendants in error. The scire facias recites a judgment of defendant in error against John D. Creigh, at August Term 1838, for $511.47 debt, and $7.30 costs ; and a recognizance entered into by plaintiffs in error, on 31st of January 1839, before John Boden, prothonotary of the Court of Common Pleas, in $1022.94, with condition that John D. 140 SUPREME COURT [Harrisburg [Stroop v. Gross. Ickes v. Smith.] Creigh should pay debt, interest, and costs, at the expiration of twelve months from 1st Monday of August 1838; or, in default, that they would pay. The writ was served, and defendants ap- peared by attorney. Among the docket entries are the follow- ing: "August 22d 1840, Rule on defendant's attorney to plead in twenty days or judgment : September 28, 1840, on due proof of service of notice, by copy, on defendant's attorney, on the 23d of August 1840, judgment, according to rule." The rule of court is this : " No. 67, on writs of scire facias, if duly served and de- fendant appear, rules to plead, &c. may be had as in cases of summons." No. 57, " the plaintiff may, at any time after pro- cess returned, enter a rule to plead, &c., of which he shall give a written notice to the defendant, or his attorney ; and if he fail to comply within twenty days after the said notice shall have been personally served, the prothonotary may enter judgment." The notice filed, is in these words, viz : Daniel A. Gross, executor oH In the Common Pleas of Perry Abraham Gross, deceased, who was the guardian of Wm. Ogle, deceased, and now for the use of Jacob Steel, guardian of said children Geo. Stroup and Saml. Creigh. _, County No. 22, August Term 1840. . In this case you are required to plead in twenty days or judg- ment. (Signed) JOSEPH CASEY, Attorney for pljf. August 22 d, 1840. To S. ALEXANDER, ESQ. Attorney for defts. Proof is endorsed, of service on S. Alexander, on 23d August. The case of Ickes against Smith presented the same point, and differed only in this particular, that the judgment was rendered against the defendant upon the plea of nul tiel record, instead of by default. Alexander, for plaintiff in error, argued that the recognizance was absolutely void, because it was not approved by the court or a judge, in pursuance of the positive requisition of the Act of Assembly of the 16th of June 1836, sec. 4. That the notice to plead was not in pursuance of the rule of court, which requires notice of a rule to plead : this was a mere requisition to plead, and not notice of a rule. And the notice did not correspond with the style of the suit on the record. Watts, for defendant in error, replied that the approval of the recognizance being for the benefit of the plaintiff, he might waive it, which he impliedly did, by waiting the expiration of the time when the stay of execution expired. But can it be that the bail who partakes in the default of his principal, can avail himself May 1841.] OF PENNSYLVANIA. 141 [Stroop v. Gross. Ickes v. Smith.] of it as a defence, after he has procured for him all he desired ? Cited 3 Whart 70 ; 4 Wash. C. C. Rep. 621 ; 16 Serg. $ Rawle 48 ; 14 Mass. 167 ; 9 Cranch 28. There was a rule to plead entered, and the notice was sufficient that it had been entered : the defendant is " required to plead ;" he could only be required by a rule. The opinion of the Court was delivered by ROGERS, J. I am inclined to think, that the 77th section of the Act of the 14th of April 1834, which enables prothonotaries and clerks of the several courts of the commonwealth to take bail in civil actions, depending in the respective courts, does not autho- rize them to take recognizances for stay of execution. This power is regulated by the Act of 1806, enlarged by the 4th section of the Act of the 16th of June 1836. It was the practice through- out the state for the prothonotary to take the security for the stay of execution, under the first act, although it is not expressly made their duty. The act of the 16th of June, in addition, requires that the security shall be approved by the court, or a judge there- of, but also omits to direct by whom the recognizance shall be taken ; but I see no reason why we should alter the practice in that respect, to be perfected afterwards by the approval of the court, or by a judge. The approval of the court is intended for the benefit of the creditor, and when the defendant omits to have the security approved, he, the creditor, may treat the recognizance as a nullity, and have his execution, on the judgment, as in Eich- man v. Belvedere Bank. 3 Whart. 70. But the approbation of the court being designed for the advan- tage of the creditor, he may waive, either expressly or impliedly, by an acquiescence in the claim of the debtor to it, the benefit of the cesset. But this privilege is not extended to the debtor, for it would be against common justice that he should take advan- tage of a defect, which has arisen from his own default, after he has, by the forbearance or with the assent of the creditor, derived every benefit which would have resulted from a recognizance exe- cuted and approved with all the formalities required by the Act. Nor can we perceive that the bail who has identified himself with his principal, is in any better situation than the principal himself, whose duty it was to perfect the recognizance. The judgment by default was rendered secundum regulam. The notice was substantially good, as the attorney on whom it was served could not have mistaken its object, or the suit in which the plea was demanded. Judgment affirmed. 142 SUPREME COURT [Harrisburg Barnitz against Smith. Upon an appropriation of the proceeds of the sale of real estate by the sheriff, a lien for the balance of the purchase money, subject to which the land was con- veyed to the defendant, is entitled to priority over subsequent judgment creditors. APPEAL by Martin Shearer's assignees from the decree of the Court of Common Pleas of York county, distributing the money arising from the sale of the real estate of Michael Smith. Jacob Barnitz claimed the money upon a judgment against Mi- chael Smith for $800, entered on the 9th of April 1835. Upon this judgment executions issued, and the real estate of the de- fendant was levied and sold for $1000. The appellants, to support their claim to the money, gave in evidence that Anthony Willet died seised of the land, out of which the money was made, and now in court ; and that after his death, Martin Shearer, his administrator with the will annexed, sold the land to Michael Smith upon the following terms, in pursuance of which they now claimed the money : Conditions of Sale. The subscriber, administrator with the will annexed, of Anthony Willet, deceased, proposes this day to sell at public vendue four tracts and lots of land, all held under patent, situate in Manheim township, York county, Pennsylvania, adjoining lands of Jacob and Henry Albright, George Shrof, John Kalkrieder, John S. Dubbs, John Waltman, Conrad Felty, George Mayer, and the heirs of Michael Bucher, Barnard Albright, and John Swartzbach, de- ceased, and each containing as follows, viz : No. 1. Containing 129 acres and 60 perches, neat measure. No. 2. Containing 61 acres and 70 perches, neat measure. No. 3. Containing 3 acres and 130 perches, neat measure. No. 4. Containing 4 acres and 79 perches, neat measure. And will be sold on the following terms : The highest and best bidder shall be the purchaser. The purchasers of lots No. 1. and No. 2. will be required to pay the one-half part of the purchase money each lot of land will amount to per acre, on the first day of April next ensuing the date hereof, and the remainder thereof to be paid in four equal annual payments ; the first thereof to be paid on the first day of April 1836; the next on the first day of April 1837; the next on the first day of April 1838 ; the last thereof on the first day of April 1839. May 1841.] OF PENNSYLVANIA. 143 [Barnitzv. Smith.] The purchasers of lots No. 3. and 4. will be required to pay the one-half part of the purchase money each lot of land will amount to per acre, on the first day of April next ensuing the date hereof, and the remainder thereof to be paid in two equal annual payments ; the first thereof on the first day of April 1836 ; and the last thereof on the first day of April 1837 ; for which an- nual payments aforesaid bonds shall be given with approved secu- rity, and be a lien on the land at the time the hand-money is to be paid. The purchaser or purchasers of each tract or lot of land as aforesaid, to receive good and lawful deeds of conveyance by him or them purchased, clear of all judgments, mortgages, or liens, on the first day of April next ensuing the date thereof, or at any reasonable time after the hand-money is all paid and bonds given for the annual payments, with security as aforesaid, and then to have possession. But all the grain in the ground is excepted, to cut and carry away the same, the straw to remain to be thrashed in the barn. If the purchaser or purchasers of the within men- tioned tracts and lots of land, or any of them, shall neglect or fail to comply with the above conditions, the subscriber shall be at full liberty to resell the same, either by public or private contract, and the deficiency (if any) occasioned by such second sale, to- gether with all expenses attending the same, shall immediately after the said sale be made good to the subscriber by the default- er at this present sale ; and in case of the non-payment of the same, the whole thereof shall be recoverable by the subscriber as and for liquidated damages. Given under my hand this 2d day of December 1834. MARTIN SHEARER. Know all men by these presents, that I, Michael Smith, have purchased lots No. 1. and 2., containing 190 acres and 130 perches of land, neat measure, at the rate of nine dollars per acre, according to the terms of the within conditions ; and I have also purchased lot No. 4., containing four acres and seventy-nine perches, neat measure, at the rate of $10.30 per acre, neat mea- sure, according to the terms of the within conditions ; and I do hereby bind myself, my executors, and administrators, to comply with the within conditions in every respect thereof. Witness my hand and seal this second day of December 1834. MICHAEL SMITH. [SEAL]. In pursuance of sale made to Michael Smith, Martin Shearer, administrator de bonis nan, with the will annexed, of Anthony Willet, executed a deed to Michael Smith for part of the premises mentioned in the above conditions of sale, viz : No. 1 . and 2. and 4., and bearing date 20th of March 1835, and concluding as fol- lows, to wit : 144 SUPREME COURT {Harrisburg [Barnitz v. Smith.] To have and to hold the said tract of land, as above described with the hereditaments, and premises, and appurtenances hereby granted or mentioned, or intended so to be, unto the said Michael Smith, and to his heirs and assigns, to their only proper use and behoof for ever, for such estate, and under such restrictions and conditions as the said Anthony Willet at and immediately before his death, did hold the same according to the forms and effect of the laws and usages of the commonwealth in such case made and provided. In witness whereof the said Martin Shearer, the ad- ministrator, with the will of Anthony Willet, deceased, annexed, hath hereunto set his hand and seal the day and year above writ- ten. Subject to the proviso or condition of sale that there shall be a lien on the land until the whole amount is paid by the said Michael Smith or his heirs. MARTIN SHEARER. [SEAL]. Sealed and delivered, in the presence of WM. R. HOWE, JOHN L. HINKLE. Received, on the day of the date of the foregoing indenture, of the within named Michael Smith, the full and complete satis- faction for the sum of one thousand seven hundred and fifty-four dollars and seventeen cents in full, for the consideration money above mentioned. $1754.17. MARTIN SHEARER. The sale was made by the sheriff on the 25th March 1837. On the 7th of August 1837, rule upon the sheriff to bring the money into court, and to show cause why it should not be paid to Mar- tin Shearer. This rule was not disposed of until on the 5th of November 1840. Rule on the late sheriff to show cause why he should not bring into court the proceeds of sale, with the interest thereon. The court directed the sheriff to bring in the principal and rule discharged as to the interest. On the argument the following deposition was read : Deposition taken under a rule of court on behalf of Jacob Bar- nitz, before Jesse Frysinger, Esq., a justice of the peace, 9th of March 1841, of John L. Hinkle. Question. Did you take the acknowledgment of the deed an- nexed to this half-sheet of paper Martin Shearer to Michael Smith? Answer. I did. Question. Was the written line above the signature of Martin Shearer, beginning with the words " Subject to the proviso and condition of sale," &c., in the said deed at the time of taking such acknowledgment or not ? Answer. Does not recollect that it was in. The court decreed and ordered the money to be paid to Jacob Barnitz the judgment creditor. May 1841.] OF PENNSYLVANIA. 145 [Barnitz v. Smith.] R. J Fisher, for appellants, contended that the proceeds should be applied to the equitable lien of Martin Shearer, and on this point cited 7 Serg. fy Rawle 80; 2 Dall 131; 1 Rawle 294; 8 Watts 202; 2 Watts 378; 7 Watts 149 ; 8 Watts 396. Chapin, for appellee, contended that the deed created a con- ditional estate, and that the remedy of the appellant was against the land, and cited 2 Watts 378; 9 Watts 15. The opinion of the Court was delivered by HUSTON, J. The appropriation of money raised from land by sale on execution has been a subject of frequent discussion in our courts and not in cases yet settled considering a lien to be a right to receive a sum of money from the proceeds of a tract of land when sold, and considering the different modes in which such liens may be created as by Act of Assembly, by acts or deci- sions of courts, or by the agreements of the parties and also that several liens, consecutive in point of time and date, may bind the same land, it is not to be wondered at that apparent difficulties occur. Expressions used by a judge, or solemn decisions by courts on other questions, totally distinct from lien, were in contest, and are brought in to perplex a court. The decision, in ordinary cases, that articles of agreement for the sale of land are merged in a deed executed, is urged, forgetful that if the articles contain pro- visions for something more than the execution of a deed, that may remain in full force after a conveyance has been executed and ac- cepted. This doctrine, however, has no application to this case ; for the agreement that the balance of the purchase money shall be a lien on the land till the whole amount is paid is in the deed as well as in the conditions of sale. It would be useless to these parties, and improper, to pretend to lay down what would be the law in all cases of conflicting liens. That would be an attempt to decide cases not before us, in which we have not heard the parties or their counsel. It will, perhaps, be found that the present has already been decided by this court. Stewartson v. Watts, 8 Watts 396. Stewartson conveyed to his vendee and heirs, &c., to have and to hold, &c., in usual form, subject to the payment of the said sum of $2804.20, intended to be secured by mortgage. After several transfers, the vendee in possession became indebted, and the land was sold by the sheriff for his debts. Stewartson, the original vendor, brought ejectment, and this court held that he could not recover, because he might have claimed and taken his debt out of the proceeds of the sher- iff's sale. A case as full to the point is found in 2 Watts 16, Epis- copal Academy v. Freize. The Academy sold by articles in 1824 ; afterwards the Academy, in 1827, executed a deed in fee simple, but containing the clause " subject to the payment of the balance of the purchase money," and same day took a mortgage for the i. 19 w 146 SUPREME COURT [Harrisburg [Barnitz v. Smith.] purchase money, but which was not recorded until after others had obtained judgment against the mortgagor. The land was sold by the sheriff. This court, on appeal, decreed the money to the Academy. The mortgage was considered as a means to compel payment of the money. " The lien of the conveyance was never suspended or interrupted, and the trustees of the Academy are entitled to be paid first." The deed in that case was never re- corded. These cases, and at least one other to the same effect, must govern the case before us. Shearer when selling, and Smith when purchasing, agreed that the purchase money should remain a lien on the land. The cred- itors of Smith have no right to object to such agreement ; but for it, Smith never would have had any interest in this land, nor his creditors any claim to the proceeds of what would never have been his ; Smith could not have sold it otherwise than subject to the balance of purchase money ; his creditors could only sell it so subject. But land subject to a lien (unless some indefinite con- tinuing lien), when sold on execution, discharges the lien which comes in for the purchase money. The decree of the court as to interest, while this contest was going on, is not complained of, and was probably correct. This court order and decree the money in court to be paid to discharge the purchase money due on the bonds given to Martin Shearer for the balance of the purchase money suspending interest while the money laid dead in court and the balance, if any, to Jacob Barnitz ; and we reverse the decree of the Court of Common Pleas of York county. It may be proper to state, that the negative testimony of the officer before whom the deed from Shearer to Smith was acknow- ledged, that " I did," in answer to the question " whether he took the acknowledgment," and to the question, " do you recollect was the written line above the signature of Martin Shearer ' subject to the proviso or condition of sale that there shall be a lien on the land until the whole amount is paid by Michael Smith, the purchaser' in the deed at the time of taking the acknowledgment or not ?" Answer : " I don't recollect that it was :" I say that no regard was paid to this by this court. It is too indefinite it, in plain English, proves nothing to the purpose. As Martin Shearer sold the land in question as the representa- tive of Anthony Willet, and held these bonds in such right, his assignees will inquire whether this money goes to them at all, or if it does, whether it goes to them as trustees for the creditors or heirs of Willet, or for the creditors of Shearer. Decree reversed, and money decreed to the person entitled to the bonds and judgments given by Michael Smith to Martin Shearer, administrator, &c., of A. Willet. May 1841.] OF PENNSYLVANIA. 147 Stroh against Hess. In an action of debt upon a written obligation in the name of the obligee for the use of another, where the defence made is that the obligation was paid to the obligee before his transfer of it to him for whose use the suit is brought, the obligee is not made a competent witness by the payment of all the costs which have and may accrue in the action. A misapprehension by the court of the construction of an agreement by reason of which in their charge they mislead the jury, is good ground of reversal. ERROR to the Common Pleas of Lebanon county. This action by George Hess for the use of Levi Hess against William Stroh, was founded upon the following instrument : " Whereas George Hess and William Stroh have had disputes concerning a claim which George Hess made on William Stroh for having become liable for a debt due to George Hess by Jacob Houk on an account assigned over to said George Hess by John Ley ; Now know all men by these presents, that said parties have compromised and settled the same ; and it is hereby agreed, in consideration of the same, that the said William Stroh shall pay to George Hess, the sum of two hundred and thirty-five dollars on or before the first day of December 1836. The above is indepen- dent of the amount said George Hess has already received from the son of said Houk ; and said William Stroh hereby binds him- self, his heirs, executors and administrators, to the payment of the said sum of two hundred and thirty-five dollars to the said George Hess on or before the first day of December 1836. Witness our hands and seals, October 4th 1836. " WILLIAM STROH. [SEAL]. " GEORGE HESS." [SEAL]. The defendant gave the following evidence : Jacob Houk sworn. John Ley had appointed assignees, and in a month or two after I appointed assignees too. Ley's as- signees and my assignees came several times together to settle. Then they made a contract, George Hess and Peter Houk. If Peter would pay him they would drop $20 of the amount. That hung from time, to time, and so it does yet. I had a debt of $170, and more, against William Stroh. Peter Houk left this place. George Hess came to my house and was plaguing me that I owed. I owed him a small note for meat, and if he would gain that action he would take out that note and give it to me, the balance ; it was six or seven dollars, and that was the suit which Hess had on the $170 claim assigned over to him against Stroh. Hess recovered 148 SUPREME COURT [Harrisburg [Stroll v. Hess.] a judgment against Stroh for $140. Stroh dropped some. That hung four or five months, then my wife wanted some money, and I told her to go to Hess ; she sent the boy, and he gave her #2 or #3. Four months after that then Hess would not give any, and I went down to him myself, and told him I wanted the money, and to see that note. He said I owed him something. Hess wanted to be paid for the small note for meat. I told him I wanted the balance of the note. He sued me, and I paid the note. Hess said I owed John Ley something. He said he was satis- fied, and had no claim against me. He settled with Peter Houk. Hess was one of John Ley's assignees. They could not agree, and they settled. I was in the side room, and they would not let me in the room. I was in the room when they settled. They appointed Henry Grow to settle. Peter is in the State of New York, has been gone four years. This was after Hess had brought the suit against Stroh. Hess said he had no demand against me, he was fully satisfied. Cross examined. This settlement was where Henry Zimmer- man now lives. I heard them talking of a settlement. This was before the action was gained in court. It was two or three years before that. He did not say who had satisfied him. John Spangler sworn. Peter Houk was living with me. "When Peter went off, Hess came to my house for Peter's book, the chest and papers of Peter Houk. I said I would not give them up. He said he must have them about the action of Stroh and Houk, and of that $170 there would be a balance of about $50 coming out. Did not say which way it would be. He got the chest and papers. I have not seen Peter Houk since. Cross-examined. This was in 1835. Peter Houk, for the^ XT , -i m , o^ T me of Georie Hess No.71, April Term 1834 January 12th ss ' } 1836, judgment for $141.04. 5th February William Stroh. J 1836 ' debt and costs P aid ' Deed of assignment. Jacob Houk to Peter Houk and George Eckert, 19th of January 1833. Inventory filed, 21st of January, 1833, vendue paper. George Hess. (Called by plaintiff.) To this witness the counsel for the defendant objected on the ground of incompetency, that he is interested. It appearing to the court that the witness has assigned all his interest in the suit to Levi Hess, and that the suit was brought for his use, and all the costs are paid into court, and a sum of money deposited in court sufficient to cover those that may accrue ; the court overruled the objection, and admitted the witness, on the ground that from the facts now before the court, judging from the evidence as it appears to them, this case is not brought within the May 1841.] OF PENNSYLVANIA. 149 [Stroh v. Hess.] rule laid down in Sleeker v. Shimer, (5 Whart. 452) and there is nothing to show that he would be liable over to Levi Hess. No notice of special matter showing the grounds of defence, the court decided from the record. The counsel for the defendant excepted to the opinion of the court. Witness examined on his voir dire. I have no interest in the result of this suit ; I assigned this agreement to pay a debt I owed my son ; I was indebted to him. The counsel for the defendant still objected to the witness. The court overruled the objection, and directed the witness to be sworn. The counsel for the de- fendant excepted to the opinion of the court. George Hess. (Sworn in chief.) I never received a cent from Stroh. Houk never paid me. No money has been paid on this bond. It was given for a debt Houk owed me, about $307, and Stroh went bail for him. I de- manded the money from him a number of times, and he did not like to pay it, and then he agreed to give me this for $235. Stroh never paid me the debt as assignee of Ley's estate. Houk never paid to me the debt for Ley's estate, he assigned the debt due to me from Stroh, before Ley assigned to me. The debt due from Houk was never paid to me. The court thus charged the jury : This is an action on an instrument under seal, given by defend- ant to the plaintiff, George Hess, which has been by him assigned to Levi Hess. The agreement purports to be given on a compro- mise of a claim which was due from Jacob HouktoGeorge Hess, and also a debt due by said Houk to John Ley, which claim had been as- signed by Ley to Hess as his assignee, under a voluntary assignment. This is an instrument under seal, given on a compromise of both parties. It imports validity on its face and a consideration, be- ing under seal, and binds all parties, and at law the plaintiff would be entitled to recover. The defendant alleges that there was no consideration, and that in equity he ought not to pay the debt. The court instruct you that the defendant is bound to pay this money unless he has shown to your satisfaction, that there was fraud in the procuring the bond or agreement, or a mistake in the settlement, or that the conside- ration has failed. Fraud must not be presumed, it must be clearly established by evidence ; and we submit it to you to decide whether there was any fraud practised upon Stroh by Hess in procuring the agreement. Was he deceived ? Has he in any way been imposed upon ? Did he not know all the facts ? Is there any evidence that he did not owe a debt to Jacob Houk, does not owe this money, or did he not owe it originally to Jacob Houk ? The court have seen none, nor is there any contained in the agreement. But it is alleged that Jacob Houk did not owe George Hess any thing. But it must be borne in mind, that the agree- ment under seal which is the plaintiff's claim, was not only for I. N* 150 SUPREME COURT [Harrisburg [Stroh v. Hess.] George Hess, but for one due to John Ley from Houk, and which was assigned to Hess. Jacob Houk has been examined as a wit- ness, he swears that John Ley had appointed assignees and so had he, that Hess was Ley's assignee, his brother Peter was the assignee of himself. He says these assignees met several times together to settle, that they made a contract, that if Peter Houk, the assignee of Jacob, would pay him, he would drop f 20 ; he says so it hung from that time to this, and does yet. Now, what por- tion of this settlement and agreement was made up of the debt due from Ley's estate does not appear. Now, supposing that there was nothing due to Hess in his own right, as has been contended, still there is nothing to show but Houk was honestly indebted -to John Ley, and how much does not appear from the defendant's showing, for aught we know the amount of the agreement, the $235. Would it under such circumstances be right or proper for a court or jury to set aside a solemn agreement of the parties made on a compromise of all these conflicting claims, on such evi- dence as is before you ? When a party alleges a mistake in a settlement, he ought to point out the mistake by very clear and explicit proof, and that one party has been imposed upon, who is called upon to pay the money. Contracts of this kind ought to be treated as of some validity ; their agreement is the law of the case. Would the parties make a settlement of this kind without a full knowledge of the facts ? It is not pretended that any fraud has been practised on Stroh, the defendant, but if any injustice has been done it is to Jacob Houk ; and if Hess, as the assignee of Houk of this debt due him from Stroh, should collect or receive more money than was due him from Houk, he would be responsi- ble over to the assignor, and Hess would hold it as his trustee. Houk swears that Stroh was indebted to him, and the claim was assigned to Hess. What injustice is there, then, in his paying his debt, for which he admits himself to be liable ? But what evidence is there that George Hess, when this agreement was made, or since, ever had been paid his debt ? all there is, comes from Jacob Houk. (I will read you from my notes his testimony.) He says Hess told him he owed him nothing, except a note of six or seven dollars for a meat bill, and for that he sued him, and got a judgment. Hess said he was satisfied. When this conversation took place, does not appear ; if it was after he had taken this agreement (and it would be fair to presume it was) then all would be correct, be- cause in this agreement it is admitted Hess had received some money, and this $235 was to be paid him, besides what he had already received. He also says that Hess told him, at the time of this conversation, that he owed Ley's estate. He also says that Peter Houk, his assignee, and Hess had a settlement. They appointed Henry Grow to settle ; that he was in a side-room at the tavern, and heard it. Does he swear that the debt was paid ? May 1841.] OF PENNSYLVANIA. 161 [Stroh v. Hess.] Does he tell how it was paid ? he certainly does not. Now, a settlement only fixes the amount due, and that is one thing, but a payment is another, and the material one to show here. If Hess was paid, how was the payment made ? you must have evidence, before you can decide that this defendant is not liable. If a party alleges a payment, he must show it, the time when, and the amount paid. No amount has been mentioned except the $141, on a judgment against Stroh, which was before this agreement, and it would be fair to infer that the parties referred to that in the agreement on which suit is brought ; it was made on the 6th of February 1836, and agreement bears date the 4th day of Octo- ber 1836. Mere vague declarations, and unexplained conversations should never destroy the form and effect of a written agreement under seal. A jury have a right to require some proof. I have a great aversion to disturbing settlements made between parties, and reduced to writing by them, without clear proof of a mistake. Jurors should be cautious in setting them aside, five years after they were made, and no objection heard till the party is called upon to pay the money. It would be a disgrace to the administration of justice to suffer it to be done, unless in clear case of fraud or mistake. The burden of proof is cast upon the defendant to show it. Has he done it here ? Are the accounts or the papers shown here? Hess swears his debt against Stroh was more than $300 all he received was $141. The expenses of that suit had to be paid out of it. If you believe him, there is no doubt but that the debt is due. Why did not the defendant require the production of his books, and the accounts of Ley, so that the jury could look over the figures, and see the errors ? The counsel for the defendant have told you, that this agree- ment was drawn by a respectable member of the bar. You can draw your own inferences from that. Would he have written this agreement if the parties were not all satisfied, and told him so, and how to draw their settlement ? All these are facts worthy of your consideration. If you are satified that there was no fraud or mistake in this settlement, then, under the law of the land, the plaintiff would be entitled to your verdict for the amount of the debt and interest. Assignment of errors : 1. The court below erred in admitting George Hess a witness for plaintiff. 2. The court below erred in their charge to the jury, and par- ticularly, in telling them that the instrument on which suit was brought, purported to be given on a compromise of a claim which was due from Jacob Houk to George Hess, and also a debt due by said Houk to John Ley, which claim had been assigned by Ley to Hess, as his assignee, under a voluntary assignment : and in instructing the jury throughout, that two claims were em- 162 SUPREME COURT [Harrisburg [Stroh v. Hess.] braced in said agreement ; also in instructing the jury as follows : " If a party alleges a payment, he must show it, the time when, and the amount paid." L. Kline and Pearson, for plaintiff in error. In an assignment of a bond, although there be no express guar- anty, yet there is an implied one that the debt is due ; the allega- tion was, and proof was given to support it, that the debt had been paid to the witness before he assigned the obligation. If this were established, he would have been liable over to the as- signee, and he was therefore interested. 9 Serg. fy Rawle 21 ; 5 Watts 418 ; 5 Whart. 446, 458. Breitenbach, for defendant in error. It did not enter into the contract of assignment of the chose in action, that there should be any guaranty, and therefore the witness was not interested. 2 Penn. Black. 208, 307; Peake's Ev. 157 ; 12 Serg. fy Rawle 181. The opinion of the Court was delivered by KENNEDY, J. The first error assigned is an exception to the opinion of the court, admitting George Hess, the plaintiff on record in the court below, and the obligee in the writing obligatory, on which the action is founded, to testify on behalf of his son Levi Hess, for whose use the action is stated to have been commenced. The defence set up was a want of consideration in giving the writing obligatory ; that George Hess, the obligee named therein, had actually received the debt for which it was given, previously from the principal debtor, but concealing this fact from the de- fendant below, and indeed going further, by representing that the debt still remained unpaid ; and the defendant below having made himself liable for the payment of it as surety for the princi- pal debtor ; the plaintiff below thus induced the defendant below to give him the obligation in question. The counsel for the plaintiff, after that the defendant below had given some evidence, tending in a slight degree to prove the fact upon which the defendant rested his defence, offered George Hess as a witness, to repel and disprove the evidence so given by the defendant. The defendant's counsel, however, objected to the competency of Hess, to prove what he was offered tor, on the ground of interest. It was then shown that George Hess had assigned all his right and interest to and in the writing obligatory, in suit, to Levi Hess, in satisfaction of a debt which he owed him : that this action was therefore brought for the use of the said Levi Hess, as stated on the record ; that all the costs which had accrued were paid into court, and a further sum of money deposited there, sufficient to cover all that should accrue. The plaintiff having shown this, alleged that George Hess could have no interest in the result of May 1841.] OF PENNSYLVANIA. 158 [Stroh v. Heas.] the suit, and ought for that reason to be admitted to give evi- dence. But the defendant still objected to his competency. The court, however, considered him a competent witness, and accord- ingly overruled the objection; whereupon, the defendant excepted to the opinion of the court in this behalf. Now, in order to decide whether the opinion of the court was correct or not, it is neces- sary to examine first, and see what would have been the effect produced upon the liability of George Hess to Levi Hess, by a verdict and judgment having been passed in this action in favour of the defendant below, on the ground that George Hess had, before obtaining the obligation in suit, received payment in full of the debt for which it was given, from the real debtor, and that he prevailed upon the defendant, who was bound as a surety for the payment of it, but ignorant of the payment by his principal, to give him the obligation in suit, by claiming the debt as unpaid and still due to him. If this were made to appear to the satisfac- tion of a jury, it would clearly be such a fraud practised by George Hess upon the defendant as would avoid the obligation, and render it no better than a counterfeit. But every obligee, or holder of an obligation, who assigns it to another, especially if he does so for a valuable consideration, impliedly at least, thereby engages that it is genuine and binding upon the obligor, unless he discloses fully and truly to the assignee, in treating for the assign- ment, all the facts and circumstances connected with the execu- tion and delivery of the obligation, and, after being thus advised, the assignee agrees to take it at his own risk. Hence, George Hess would have been liable, upon such implied engagement, to have paid to Levi Hess, the amount of the obligation in suit here, if the defendant had succeeded in making the defence which he set up, good before the jury. But George Hess was admitted as a witness, to give evidence for the very purpose of preventing this result ; and, consequently, to prevent his becoming liable to Levi Hess for the payment of the obligation, upon his implied warranty or engagement, arising from the assignment, that it was a valid and binding obligation. Thus it appears that he was in- terested in the event of the suit, and that his interest was in favour of a recovery being had by the plaintiff, and therefore was an incompetent witness for him ; so that the court below erred in admitting him to testify as such. The second error, which is the only remaining one, is an ex- ception to the first part of the charge of the court to the jury ; in which the court state, that " the agreement (meaning that upon which the plaintiffs claim is founded) purports to be given on a compromise of a claim, which was due from Jacob Houk to George Hess, and also a debt due by said Houk to John Ley, which claim had been assigned by Ley to Hess, as his assignee, under a voluntary assignment." It is very obvious, that the court fell here into an error, in construing the agreement. They i. 20 154 SUPREME COURT [Harrisburg [Stroh v. Hess.] considered it a compromise of two distinct claims : the first, as they say, due from Jacob Houk to George Hess, and the second due from said Houk to John Ley, which had been assigned by Ley to George Hess. Now, the agreement speaks of out one claim, which was an account that John Ley originally had against Jacob Houk, and assigned to George Hess, for the payment whereof William Stroh had, in some way, made himself liable to George Hess. This, the agreement expressly declares, was the subject of dispute between the parties to it, and that the agree- ment was made for the purpose of compromising and settling the dispute concerning this claim, without making the least mention of any other. The idea of there having been two separate claims compromised and settled by the agreement, is carried by the court throughout their charge to the jury. And under this erro- neous impression of the import of the agreement, the court, among other things, instruct the jury, that although Houk has paid George Hess all that he owed directly to him, yet the second claim which George Hess had, as assignee of John Ley, against Houk, may have remained unpaid, and have amounted to the $235, the amount for which the obligation in suit was given. This instruction was certainly calculated to mislead the jury, because, according to the tenor of the agreement, the only claim which George Hess had against Houk, was that which had been assigned to him by Ley ; so that if Houk paid off any claim, coming from him to George Hess, it ought to have been taken that it was that claim, unless other evidence had been given, showing clearly that Hess had a second or different claim against Houk, to which the evidence of payment was applicable. Judgment reversed, and a venire de now awarded. May 1841.] OF PENNSYLVANIA. 155 Pott against Nathans. If after judgments are obtained against a principal and surety, a third person interposes and gives his note for the debt to obtain a stay of execution for the principal, and the surety is afterwards obliged to pay the debt, he is entitled to have an assignment of the judgment on the note of the third person, to indemnify him for such payment. ERROR to Schuylkitt county. The Philadelphia Loan Company for the use of Nathan Nathans against Benjamin Pott, Charles W. Clemens, and Burd Patterson. The case was, that George Shoemaker had given his note to the Loan Company, with Nathan Nathans as his endorser ; this note was sued, and separate judgments obtained against the drawer and endorser, and execution was issued on the judgment against the principal, upon which his real estate was about to be sold, when Benjamin Pott, Charles W. Clemens, and Burd Pat- terson, the defendants, gave their note to the plaintiff, and the plaintiff's attorney gave this receipt : Philadelphia Loan Co. v. Shoemaker. Received, June llth 1839, of Benjamin Pott, Charles Clemens and Burd Patterson, their note for seven hundred and twenty-eight dollars 54 cents, at sixty days, in my favour, and it is understood that the judg- ment in the above case is, on payment of the said note, to be transferred to the party paying the same, it having been taken as collateral security for said judgment. G. W. FARQUHAR, Attorney for plaintiff. I agree to the above. GEO. SHOEMAKER. After the stay of execution had expired, the judgment was not paid and the Loan Company sued the note of the present defend- ants and obtained a judgment upon it ; after which, the surety, Nathan Nathans, paid the debt, and then obtained this rule to show cause why the judgment against Pott, Clemens and Patter- son should not be marked for his use, to enable him to indemnify himself for the money paid. The court below thus ruled the question : PARSONS, President. The note of the llth of June 1839, was not paid at maturity, and a suit was brought and the present judgment recovered on the same. After this judgment was ob- tained, Nathan Nathans, the original endorser, paid the original debt to the Loan Company, and now asks to be substituted to the 156 SUPREME COURT [Harrisburg [Pott v. Nathans.] rights and all the security which they have, and the question is, whether in equity he is entitled to be thus substituted, and this court think that he is, and it makes no difference whether those securities were obtained by the plaintiff before or after his lia- bility. The case of Parsons $ Cole v. Briddock, (2 Vern. 608) rules the present case, and decides the whole ground, and if an English Chancery decision is of any force in Pennsylvania, that case ought to govern us. And the same doctrine is recognised in Theobald on Surety 253 ; 1 1 Vezey 12 ; 2 Vezey 543 ; and the case of Fleming v. Beaver (2 Rawle 128) goes the length which this court now decide ; and what right have the present defendants to complain or resist this substitution ? They contracted to pay the debt to the Loan Company if Shoemaker did not. Has he paid it ? That is not pretended. The Loan Company could compel them to pay it ; their promise and obligation were sacred, and they made a positive contract so to do. Do not the law, justice and equity require them to fulfil it ? By their giving this note as col- lateral security and suspending the sale of Shoemaker's property, the original endorser has been compelled to pay the money then perhaps the sale might have gone on, and the debt of the Loan Company might have been paid out of the proceeds. It is well settled as the law, and too firmly to be shaken, that when a secu- rity pays the debt of his principal, all the rights of the creditor enure to his benefit, and he shall be subrogated to the plaintiff's rights. It would be a waste of time to cite authorities to this plain principle nor are there any exceptions made in the rule. Can the defendants, then, complain if the court apply that rule in the present case ? We think not ; and therefore order the rule absolute. Parry, for plaintiff in error. The rule is undoubted, that a surety upon paying the debt is entitled to substitution against the principal, but it will not give him a right of action or entitle him to any remedy against another surety having no connection with himself in point of obligation, and between whom there is no privity of contract. 3 Wheat. 520. Besides, the relation of prin- cipal and surety ceases after judgment, and therefore the equitable principle of the right to substitution is not applicable. 16 Serg. 4- Rawle 252 ; 18 Eng. Com. Law 273 ; 5 Johns. Chan. 305 ; 9 Eng. Chan. Rep. 110; 4 Johns. Chan. 130; 1 M'Cord 115. And this case is even stronger ; for here it was an additional security ac- quired after judgment, not forming a part of the judgment itself, as in the case of Burns v. Huntingdon Bank, 1 Penn. Rep. 395, but collateral to it. Hughes, for defendant in error. The general principle is as peculiarly applicable to this case as the reason for it can be ap- plicable to any case. There is no equitable reason why Mr Na- May 1841.] OF PENNSYLVANIA. 157 [Pott v. Nathans.] thans should pay the money, being a naked surety ; and if, when the money was about to be realized from the principal, the pre- sent defendants interposed their obligation to pay the money, why should they obtain what they sought for the principal at the expense of the endorser. Theob. on Prin. fy Surety 186 ; 2 Fern. 608 ; 9 Watts 451 ; 2 Rawle 128 ; 1 Penn. Rep. 395 ; 14 Fez. 164; 10 Serg. fy Rawle 12; 2 Bin. 382; 9 Serg. 4* Rawle 302; 3 Penn. Black. 516; 8 Serg. $ Rawle 152. The opinion of the Court was delivered by SERGEANT, J. The general doctrine that a surety who pays to the creditor the debt due by his principal, shall enjoy the benefit of the securities for the debt placed in the power of the creditor by the principal, has been acted on by courts of equity, and re- commends itself to our sense of justice. It seems right, that the creditor should transfer the means of indemnification, for which he has no longer occasion, to him who, under a legal obligation to pay, in default of the principal debtor, has released these securi- ties from the demand of the creditor, and paid the debt for which they were furnished. Where, however, such means consist of the responsibility of an individual, becoming a later surety or guar- anty for the same debt of the principal, there arises a conflict of equities, which may give rise to new questions as to priority be- tween the former and the latter surety. Such latter surety, stipulating at the instance df the principal to pay the debt, suffers no absolute injustice in being obliged to do so, since he is com- pelled to perform no more than he undertook, and has no right to complain that he is not allowed to use, as a payment by himself, the money which proceeds from another person whom his princi- pal was previously bound to save harmless. How the equity would be, in a naked case of this kind, I give no opinion ; it is sufficient that it is settled, that if the interposition of the second surety may have been the means of involving the first in the ulti- mate liability to pay, the equity of the first surety decidedly pre- ponderates. This principle seems to have been determined by this court, in the case of Burns v. The Huntingdon Bank, 1 Penn. Rep. 395, which I am not able to distinguish from the present. There a judgment was obtained against the maker of a promissory note, who afterwards entered absolute security, under the Act of As- sembly, in order to obtain a stay of execution. After the expira- tion of the time stipulated in the stay of execution, judgment was obtained against the surety, and it was held that one of two en- dorsers who paid the note was entitled to an assignment of the judgment against the surety. The case now before us is also that of an endorser, who is in point of law but a surety, and is entitled to all the rights and remedies of a surety. One of those rights is to be subrogated to the means of indemnity, in the hands 158 SUPREME COURT \Hamsburg [Pott v. Nathans.] or under the control of the creditor, if the surety steps into the place of the principal, and pays his debt. The creditor here was the Philadelphia Loan Company ; and when Nathans paid, as en- dorser, the right of the Company against Pott, Clemens & Pat- terson was complete by virtue of the promissory note of the llth of June 1839, taken by the attorney of the company from Shoe- maker, as collateral security for their judgment against him. The receipt for the note given by the attorney, was an engagement for a stay of execution till the time of its payment ; for it stipu- lates that on paying the note the judgment should be transferred to such of the makers as should pay it ; and the attorney imme- diately stayed proceedings on the execution. The execution had been levied on the real estate of the principal, when the three makers of the note interposed, and procured its stay, by giving their note. So that it runs parallel with the case of Burns v. The Huntingdon Bank, where the stay was obtained by the entry of absolute bail for the payment of the money. The equity in that case was held to arise from the interposition of the bail to procure a personal advantage to the principal, to the detriment of the surety, who might perhaps have been exonerated, had not the proceedings been stayed against the principal. Several cases have been cited, in which it has been held, that the relation of principal and surety ceases, as respects the credit- or, after judgment. But the contrary doctrine seems to have been held in the case above mentioned, and also in that of Com- monwealth v. Haas, 16 Serg. Rawle 252, where, after judgment, the creditor issued execution against the principal, and levied on his goods and chattels, and it was held, that the surety was dis- charged to the amount which the goods would have sold for. These cases show that after judgment the creditor is required not to abandon the means in his hands, which might prove available for the relief of the surety, nor to do any act which may preju- dice the surety. Judgment affirmed. May 1841.] OF PENNSYLVANIA. 159 Bombaugh against Robinson. The obligation of a recognizance before a justice of the peace fora stay of execution is, that the defendants will pay the debt, or be surrendered in execu- tion when called for; and such recognizance is forfeited, when the bail, being called on in the proper way, omit to surrender all the defendants. ERROR to the Common Pleas of Mifflin county. George Bombaugh against Thomas Robinson. Scire facias sur recognizance. The plaintiff, George Bombaugh, obtained a judgment before a justice of the peace, against Ford & Whitterman, for $33.75, when Thomas Robinson became bound before the justice in a re- cognizance of $65, for the stay of execution for the defendants. After the lapse of six months, an execution issued to the consta- ble upon the judgment against Ford & Whitterman ; upon which he made return, " No goods ; Whitterman sick, and not able to be removed, and Ford not to be found." The defendant in this suit contended that this was not a suffi- cient return to fix him for the money : and the court below was of that opinion, and instructed the jury to find for the defendant. J. Fisher, for plaintiff in error, cited 1 Cow. 99 ; 5 Watts 336. Benedict, contra, cited 2 Watts 103 ; 8 Watts 182 ; 11 Mass. 234 ; 16 East 39; 6 Johns. 97. PER CURIAM. It is perhaps possible that an arrest of one de- fendant on a capias ad satisfaciendum, against two or more, would be satisfaction of the judgment, and that a second execu- tion could not issue about which we say nothing but what is the condition of the recognizance of their special bail ? It is that the defendants will pay the debt, or be surrendered in execution when called for; and it is consequently broken, when the bail, being called on in the proper way, omit to surrender them all. The capias ad satisfaciendum is necessary to ground the scire facias, but only to give notice to the bail, that their principals are demanded ; and, the object being to fix the bail, it is never served. It has the four days in the sheriff's office, and is returned non est inventus, as a matter of course. But a plaintiff has, by the terms of such a recognizance, a right to demand all the defend- ants ; and if they are not all forthcoming, the bail are answerable 160 SUPREME COURT \Iiarrisburg [Bombaugh v. Robinson.] for it. They are special gaolers of their principals, at their own request ; and are liable for the non-production of any of them, as the sheriff would be. Now, it has been ruled, that if there be two in execution, and one of them escape, though the other remain in prison, yet shall the sheriff be liable for the debt, because each body is a separate and distinct pledge for it ; and it is there- fore fixed upon him if either escape. Roll. Jib. 801 ; Dalt. 561. For the same reason, when one escapes from the bail, they are liable for the whole. Judgment reversed, and a venire de now awarded. Leinaweaver against Stoever. The acceptance by a widow of her share of her deceased husband's intestate estate, under the statute of distributions, is not an election such as will bar her from recovering dower out of land which her husband had aliened in his life- time. ERROR to the Common Pleas of Lebanon county. Elizabeth Stoever, widow of Tobias Stoever, deceased, against the administrators of Peter Leinaweaver, deceased, with notice to his heirs. To April Term, 1825, the plaintiff, Elizabeth Stoever, brought an action against Peter Leinaweaver to recover her dower in a certain brick house and lot of ground in Lebanon, and on the 16th of January 1828, recovered a judgment. The present action was a scire facias to show cause' why that judgment should not be revived, and a writ of seisin issue ; in which the following case was stated, and considered in the nature of a special verdict. " This scire facias is brought to show cause why the judgment set forth in the said scire facias should not be revived ; and why the said Elizabeth, her seisin of dower in the said premises, should not forthwith have. Tobias Stoever, the husband of said Elizabeth, died intestate on or about 1st September 1824; and an inventory was exhibited in the register's office of Lebanon county, on 18th September, 1824, which is made part of this case stated. The administrators of said Tobias, viz : John Stoever, Chris- tian Kreider, and Philip Stine filed their administration account on the estate of said Tobias in the proper office, on 3d Decem- ber 1824, and a supplemental account on 7th February 1837, which are also made a part of this case stated. May 1841.] OF PENNSYLVANIA. 161 [Leinaweavcr v. Stoever.] The said Tobias Stoever died intestate, seized and possessed of certain real estate in Lebanon county, viz : a messuage and tract of land, situate in Lebanon township, containing 208 acres, with the appurtenances, &c. On the petition of John Stoever, Chris- tian Kreider, and Philip Stine, heirs and legal representatives of said Tobias Stoever deceased, a writ of partition issued out of the Orphans' Court of Lebanon county, on 6th November 1824, under which the said premises were divided into two parts ; one thereof containing 113 acres 65 perches, and the other 111 acres 132 perches. The first thereof was appraised at $41 per acre, and the other at $38 per acre. Said partition and valuation were duly confirmed ; and the tract containing 113 acres 65 perches was accepted at the valuation, by John Stoever, on 21st March 1825, who entered into recognizance in the sum of $9266, condi- tioned. The other tract, on same day, was accepted by Jacob Stoever, who entered into recognizance in the sum of $8536. The said John and Jacob were sons and heirs at law of said Tobias Stoever, deceased. All the proceedings of the Orphans' Court relative to the par- tition of the .real estate of Tobias Stoever, deceased, are made part of this case stated. The said Elizabeth, the plaintiff in this cause, is to be consid- ered, for the purposes of this case stated, as having received her interest annually, on the third part of the valuation money of the said two tracts of land, accepted by John and Jacob Stoever. The said Peter Leinaweaver died intestate and insolvent about February, 1835. At August Term, 1835, his administrators, viz : George Leinaweaver, Jonn Krause, and George W. Kline pre- sented a petition to the Orphans' Court of Lebanon county for an order of sale of his real estate for the payment of debts ; and an order issued accordingly. After various proceedings, an alias order of sale issued, and the said administrators sold, under said order, the premises in which the said judgment in dower was re- covered, to Jacob B. Weidman, Esq., for the sum of seven thou- sand dollars, and to hold the same under and subject to the legal claims and demands of Elizabeth Stoever, widow and relict of Tobias Stoever, deceased, whatever the same may finally be deci- ded to be, if any, he being the highest bidder, and that the highest and best price bidden for the same ; which sale was duly confirm- ed by Orphans' Court on 14th November 1836. And said Jacob B. Weidman paid the purchase money, and got possession of the premises on 1st April 1887, of which he sold one undivided half to George Leinaweaver, his heirs and assigns for ever, for $3500, and they are now in possession of the said premises as tenants in common. All the proceedings in the Orphans' Court of Lebanon county, relative to the estate, real or personal, of Peter Leinaweaver, de- ceased, are made a part of this case stated, i. 21 0* 162 SUPREME COURT \Harrisburg [Leinaweaver v. Stoever.] A suit was instituted in the Common Pleas of Lebanon county, to April Term, 1825, No. 72, by John Stoever, Christian Kreider, and Philip Stine, administrators of Tobias Stoever, deceased, against Peter Leinaweaver, to recover the amount of four bonds, given for the unpaid part of the purchase money of the said premises, which bonds were given by said Peter Leinaweaver to said To- bias Stoever, in April, 1814, when said Peter Leinaweaver pur- chased the premises from said Tobias, which he did per deed of 1st April 1814. Peter Leinaweaver having died, his said administrators were substituted as defendants in said suit, and a judgment was reco- vered against them in August 1838. All that said plaintiffs ever received on said judgment, appears from the report of auditors, distributing the assets of Peter Lein- aweaver's estate. At the time of executing the deed from Tobias Stoever to Peter Leinaweaver, he, the said Tobias Stoever, gave to said Peter Lein- aweaver a bond of indemnity relative to the dower of his wife, &c., dated 1st April, 1814; which deed and bond of indemnity are also made a part of this case stated. Since the execution of the deed from Tobias Stoever to Peter Leinaweaver, and before the death of Peter Leinaweaver, a new stable was erected on the said premises in place of an old one that was on at the time of the sale to P. Leinaweaver. A new house, wherein is an apothecary's shop, also a new stable, were erected also on the premises by Peter Leinaweaver, after his said pur- chase. [The brick house and tavern-stand rent for . . $233 33 p. an. The house, &c., occupied by G. Leinaweaver, which was erected by P. Leinaweaver in his lifetime, rent for 125 00 " The house, &c., occupied by G. W. Kline, rents for 125 00 " $483 33 The taxes and repairs are estimated as having amounted to $60 per annum since said Jacob B. Weidman obtained possession. The brick house and tavern-stand, above mentioned, remained without producing any rent to the owners, from 1st April 1837, to 1st April 1838.] The counsel for the plaintiff admits the above stated facts, in- cluded in brackets, as facts ; but does not admit that they are ma- terial or pertinent to the issue in this case. If material or perti- nent, the court are to consider them ; otherwise not. It is admitted, that independent of all buildings and repairs, made after the purchase by Peter Leinaweaver, the premises on which the judgment in dower was obtained, would now rent for May 1841.] OF PENNSYLVANIA. 163 [Leinaweaver v. Stoever.] three hundred dollars a year, clear of taxes and repairs ; and would have rented at the same rate from 1st April 1837. The pleadings in the cause, as filed and entered, and the records in the original suit, and all records, proceedings, and papers re- ferred to, are considered as part of this case stated ; and if any thing is defectively stated, the case is to be immediately amended so as not to delay a decision. If the court should be of opinion that the plaintiff is entitled to any judgment, the court are to give such judgment as the law authorizes, with costs. If the court should be of opinion that the defendants are entitled to judgment, the court are to give judg- ment for the defendants, with costs." The court below rendered a judgment for the plaintiff for the following reasons : PARSONS, President. In this case stated, there are three ques- tions which arise for the opinion of the court. 1 . Whether, when the husband of a widow dies intestate, seised of real estate, and that property is divided among the heirs on a valuation by order of Orphans' Court, and the widow recovers her dower out of such real estate, she can recover her dower at common law, out of lands of which her husband was seised dur- ing coverture, but aliened by him before his death. 2. Whether, when lands are sold at Orphans' Court sale, thus aliened, the purchaser takes them discharged of the widow's dow- er at common law. 3. Whether, after a widow has recovered a verdict in an action of dower, and issues a sci. fa. to revive the judgment of dower and have a writ of seisin, the defendant is not concluded by that verdict from denying her right to the writ of seisin and having her dower set off to her. If the last question should be decided in favour of the plaintiff in this case, the two former propositions need not now be considered in the decision of the cause. It appears from the facts in the case stated, that Tobias Stoe- ver, the husband of the plaintiff, died in September 1824 ; that, at November Term, 1824, an inquest was awarded upon his real estate ; and in March 1825, the heirs gave a recognizance in the Orphans' Court and took the property at the valuation. To April Term, 1825, No. 12, this action of dower was brought, and a ver- dict and judgment given, llth June 1828, which was afterwards affirmed by the Supreme Court. Under this state of facts, I am of the opinion that the plaintiff is entitled to have her writ of seisin : for, admitting for argument's sake, that the first position of defendant's counsel is correct, and by her accepting the dower under the statute, she is barred at common law, still a court of competent jurisdiction have decided that she is not, and that deci- sion now stands unreversed. She must have made her election before that suit was brought, at all events before the trial, because the case stated admits she received the interest annually from 164 SUPREME COURT [Harrisburg [Leinaweaver v. Stoever.] 1825 to this time, and if she made her election before trial and after suit brought, the defendant should have pleaded puis darrein continuance, when it would have been received by me court, if there was any thing in the defence, and it had been a legal ground to defeat the plaintiff's right. For the purposes of this cause, the court are bound to presume that defence was shown and the court adjudicated on the same ; we cannot go back of the judgment. It has been determined that all these matters do not bar her of dower, at least the court are bound to infer so. For these reasons we think the first and third propositions are disposed of. As to the second, the terre-tenants purchased the land at Or- phans' Court sale, after the verdict and judgment in dower and when they had full notice of the plaintiff's claim. It was a judi- cial sale of all the interest of the deceased ; that was sold and no more, and subject to all existing incumbrances ; and the right of dower was a legal incumbrance, and could not be barred by 21 years' possession. The court, therefore, render judgment of revival on the sci. fa., and order that a writ of seisin in dower issue ; they also order a substitution of the heirs of Peter Leinaweaver on the record. Weidman, for plaintiff in error, cited Act of 1764, sections 2, 8, 9, 10; 3 Smith's Laws 156; Act of 1794; 3 Smith's Laws 148, sec. 13. That part of the estate which the widow takes under the intestate laws is in lieu of her dower at common law. Why should she have her interest in the estate of her husband increas- ed by the sale of the very land out of which she now claims dow- er, and recover her dower at common law out of it also ? Cond. Eng. Chan. Rep. 361; Addison 351 ; 2 Yeates 289; 17 Serg. # Rawle 25; 3 Rawle 396; 2 Watts 263, 381. Pearson, for defendant in error. The opinion of the Court was delivered by GIBSON, C. J. The argument to prove this a case of election, is that when the widow accepted her share of the intestate's es- tate under the statute of distribution in the Orphans' court, she received, as an equivalent for her dower in the land aliened by her husband, her third part of the purchase money which had gone into the mass of his estate either as personal property or other land bought with it ; and, consequently, that she ought not to have both her dower and the price of it. But was any part of the pur- chase money the price of her dower ? In the supposition that it was lies the fallacy. Take the strongest case possible the case of a sale by the husband without his wife's co-operation, followed by his death and intestacy before payment of the bonds taken for May 1841.] OF PENNSYLVANIA. 165 [Leinaweaver v. Stoever.] the purchase money and it will still result that she would be en- titled, not only to a third of them as part of his personal estate, but to dower in the land also ; nor can it be thought that she would thus have a double satisfaction. Why was her dower left in the land 1 Evidently because the husband had no power over it, and it was therefore neither sold nor paid for. Then, his inte- rest alone having been sold, the purchase money paid for it is an equivalent for nothing else ; and this consideration practically en- ters into the contemplation of the husband and his vendee in the concoction of the bargain. No man gives as much for an estate encumbered with an incipient right of dower as he would give if it were free from it ; and the chances of the wife's survivorship, where she is not a party to the deed, are calculated and deducted from the purchaser's estimate of the unencumbered value. What he buys and pays for, then, is not the title unaffected by the wife's contingent interest in it, but the husband's part of it exclu- sively, being what the husband can part with independently of her concurrence and will. When, therefore, his exclusive portion of the estate is converted into money, why should she not stand in relation to the produce of it as she does to any other part of his personal property ? Should he die intestate while it remains personal, she would get a third of it absolutely ; or if he should have invested it in land again, she would have acquired an addi- tional estate of dower by it, and she would also retain her dower in the tract sold. It may perhaps be thought that she might in this way, if the principle were sound, gain the whole purchase money in the shape of land by repeated conversions of it ; but to suppose so is fallacious, because each re-purchase would be succes- sively less in value than the preceding one by the ratio of the dower taken out of the preceding sale till the reinvestments would, in the end, be frittered away to almost nothing ; and the value of her dower in all the tracts thus successively purchased, would eventually be no more than her interest in the price of the tract first sold. There might be such a case, but it would never hap- pen in practice. A widow, therefore, retains her dower reserved in her husband's conveyance for it is reserved when it is not parted with as her proper estate, and not as a part of the hus- band's ; and when she claims what also is hers by the intestate laws, the heirs cannot compel her to bring such dower into hotch- pot. Neither can her husband's alienee object that she has re- ceived an equivalent for it from the husband's estate. For whose benefit would she relinquish her dower ? For the benefit, not of the husband's representatives, but of a stranger to them. She calls on him for what she purchased by her marriage, and what he has not paid for ; and it is no matter to him that she has received her share of another part of the husband's estate elsewhere. There is no election in such a case, and she may take both. The other part of the defence is still more palpably unfounded. It never 166 SUPREME COURT [Harrisburg [Leinaweaver v. Stoever.] was before imagined that dower consummate by the death of the husband, could be devested by any judicial sale except for his debts ; and in no other country or state than Pennsylvania, is the sale of even an initiate right of dower for his debts an exception. The award of a writ of seisin against the vendee's heirs, was en- tirely proper. Judgment affirmed. Strauch against Shoemaker. It is essential to the validity of a title founded upon a warrant and survey as against an intervening right, that the survey shall have been returned within seven years ; for otherwise, notwithstanding the property, which was unseated, may have been assessed and the taxes paid by the owner ; that he used it as woodland for the purpose of supplying the farm on which he resided with fire- wood, rails and timber; that he claimed title, and this with the knowledge of the improver; yet after the lapse of seven years his right is for ever postponed. When unseated land is sold for the payment of taxes, the title of the real owner, whatever it may be, passes to the purchaser, whether it be assessed and sold in his name, the name of the warrantee or a stranger, and whether the per- son in whose name it is taxed and sold has or has not any title. ERROR to the Common Pleas of Schuylkill county. This was an action of ejectment by John Strauch and John Klingeman against George Shoemaker, to recover a tract of land in Norwegian township, containing 174 acres. Plaintiffs gave the following evidence : 1767, January 20th. No. 2283, Application of Michael Lin- dermuth and John Melchior for 300 acres over the Second Blue mountain, adjoining the lands of Abraham Dely, Ellis Hughes, and said Melchior in Berks county, with directions to the deputy to execute the survey. 1806, April 18. Survey under the same by Henry M. Rich- ards, D. S. of 174 acres and allowance, adjoining lands of late John Melchior, John Neyfong, Vacant Mountain, and Ellis Hughes the land in dispute. 1771, No. 74 of February Term. Record of a judgment in the Common Pleas of Berks county, and proceedings thereon at the suit of Henry Shoemaker against John Melchior, showing a sheriff's sale of land in Berks county, in the year 1771, by the following descriptions, to wit : A certain undivided moiety or equal half part of a plantation and tract or piece or parcel of land, situate over the Blue Mountain in Berks county, containing 150 May 1841.] OF PENNSYLVANIA. 167 [Strauch v. Shoemaker.] acres or thereabouts, be the same more or less late the estate of John Melchior in the said writ named. 1771, August 3d. Deed, Jacob Shoemaker, sheriff of Berks county, to Henry Smith, Jacob Winey, and Christian Lower, for one moiety of 150 acres or thereabouts, describing it as above, and sold as the property of John Melchior. Consideration, 19/. 1783, September 1st. Deed from Henry Smith, Jacob Winey, and Christian Lower, to Michael Voyge, reciting the sheriff's deed. Consideration, 401. 1805, May 27. Deed of assignment, Michael Voyge to John Waggoner and Jonathan Lindermuth. 1805, May 28. Deed, John Waggoner, and Jonathan Lin- dermuth to Henry Strauch and John Mowre, for same land. Consideration, 507. 1813, April 3d. Deed, John Mowre to John Klingeman, for his interest in the same land. Consideration. Christian Lauderbrun sworn. I am the clerk of the Commis- sioners of Schuylkill county. These are office papers brought from the Commissioners' office of the said county. 1817. Original assessment of lands in the township of Norwe- gian, for the year 1817, containing under the head of non-resi- denters, this entry : Strach, Henry | 100 acres. | $400 00. 1817. Record Book of the tax assessed for the same year, 60 cents, and credit to collectors for same amount. 1820, June 17th. Deed, John Schall, treasurer, to Jacob Hehn, Philip Foegley and Abraham Reifschneider, Commissioners of said county. Jacob Reed sworn. I know the land that went by the name of Henry Strauch, it lay on the north side of the Sharp moun- tain ; between that and Schuylkill there were no buildings on it, as far as I know of, from 1817 to 1820. 1826, October 25th. Deed, John Zehner, Henry Shoemaker, and Ludwig Berger, Commissioners of Schuylkill county, to John Strauch. 1826, September 25th. Conditions and acknowledgment of purchasers of public sale of lands by Commissioners. Jacob Hammer sworn. I was Commissioners' clerk at the time of the sale and witnessed the acknowledgment of sale ; I also witnessed the Commissioners' deed ; I think Koehner mentioned at the sale that he bought for John Strauch, and requested the deed to be made to him. It was a public sale, agreeably to the conditions. Matthias S. Richards sworn. I was the deputy surveyor of Berks County ; those papers I found in the office of the deputy surveyor of Berks County ; I do not know the hand-writing of the papers, except that there was some memorandums of my oro- 168 SUPREME COURT [Harrisburg [Strauch v. Shoemaker.] ther's, Henry M . Richards, formerly deputy surveyor of Berks ; I found these among the files of official papers of the office, when Henry M. Richards was deputy surveyor. He purchased from the widow Scull sundry papers, and these papers remained in his possession, and I became familiar with them as being called Scull's papers ; I frequently saw them in his possession, we looked upon them as connected with the office, but as his private pro- perty ; upon the death of my brother Henry, I became his suc- cessor. In 1809, John M. Heyneman was appointed my brother's successor ; he did not deliver over these Scull papers to Mr Heyne- man as his successor ; my brother was afterwards appointed deputy surveyor again ; he bought these papers of the widow Scull, I think the widow of James Scull or Jasper Scull ; they came from that source. Mrs Jasper Scull observed when we got the papers, that we should assort them, and if there were any private papers they should be destroyed, so as not to be exhibited to the public. 1767, January 20. Copy of application directed by John Lukens, Esq. S. G., to John Scull, with memorandums on back. 1767, January 20. Copy of application directed by S. Coch- ran, S. G., by S. Clendenen, to H. M. Richards, with endorse- ment. Matthias S. Richards, again. I am in doubt whether the me- morandum at the head is not my writing at an early day, when we were assorting the papers received of Mrs Scull ; but I cannot reconcile this with the memorandums received per John Wag- goner, 3d of July 1804. 1769, January 15. Old field-notes, and three parts of old drafts. Marks J. Biddle sworn. I do not know John Scull's hand- writing, but I am inclined to think this was not his, for he was the son of Nicholas Scull, and a man of some education ; and here the name of Michael is spelled Michel. Jasper got no papers but what came to the hands of his father, John Scull. Defendants then gave the following evidence, to wit : 1816, April 1. Warrant to George Shoemaker, 300 acres, adjoining lands of John Pott and others. 1816, April 27. Survey thereon by John W. Roseberry, for James M'Farland. 1816, April 1. Receipt of the treasurer, $80 purchase money, 85.50 fees. 1825, May 9. Receipt, $11.04, balance of purchase money, &c. 1825, May 9. Patent to George Shoemaker, for 302 acres, 120. 1825, May 16. Deed, George Shoemaker and wife to Joshua Lippincott, for a moiety of tract. 1829, February 19. Deed, George Shoemaker and wife, to B. W. Richards, for one-quarter of tract. May 1841.] OP PENNSYLVANIA. 169 [Strauch v. Shoemaker.] 1828, July 3d. George Shoemaker and wife, to B. W. Richards, for one-quarter of tract. Plaintiffs, further to maintain the issue on their part, gave in evidence as follows, to wit : Matthias S. Richards, called. (Looks at a paper) This paper is in the hand-writing of H. M. Richards ; field-notes and calcula- tions of quantity ; I found it in the office of the deputy surveyor of Berks county ; field-notes and entry by H. M. Richards thereon, that 87 paid by Henry Strauch, &c. 1811, April 25th. Entry in book of H. M. Richards, showing that the $7 fees were paid 25th of April 1811. Plaintiffs then offered to prove payment of taxes from 1805 to the time of the sale to the commissioners, which was objected to by the defendants, as not rebutting, and the evidence rejected by the court. Plaintiffs, further to maintain the issue on their part, offered to prove that Henry Strauch, from the survey up to the sale to the commissioners, lived within four miles of the land, cut saw-logs and other timber on the land ; that it was known and called the land of Henry Strauch, and that George Shoemaker had notice of these facts. The court permitted the plaintiffs to prove any notice or knowledge that George Shoemaker had or received in relation to the title under which the plaintiffs claim, or in relation to any acts of ownership, with a claim of title which Henry Strauch exercised on the land, and residue rejected. To which the plaintiffs excepted. The plaintiffs then gave the following evidence, to wit : John Dreher sworn. Shoemaker came to me and told me that he believed that hill was vacant, and believed he would take out a warrant for it. I told him, as far as I knew, there had been an application in the neighbourhood, in the name of John Melchior, and it was very probable that was in his way ; I think I told him he should go to old John Pott, who had the title to the application ; I think I made a copy of the draft in the name of John Melchior, on the north side of Schuylkill ; that was the only one I knew of, at the time I gave it to Shoemaker; he came back, and told me he had been to Pott, who showed him the drafts of which I had made him a copy ; I made the affidavit for him to obtain the warrant, but I do not know whether this conversation was about that time or not ; I cannot recollect what draft George Shoemaker took along with him to Harrisburg, after he made the application in order to obtain the warrant ; I think it was the one I gave him ; I have a slight recollection that at the former trial I had produced a draft, but of what land I do not know ; I think at a subsequent time I produced to him a draft like one of these (the land in dispute.) It seems to me at one time that I told him or showed him a draft, and he said he did not care for it, it was not returned ; when this was, I cannot say. The draft produced, i. 22 p 170 SUPREME COURT [Harrisburg [Strauch v. Shoemaker.] I think, was not in the same hand-writing, as that one produced ; it seemed to me to be in the same shape of a survey ; I think it was a private draft that belonged to me ; I was not deputy surveyor then; I think Roseberry was deputy surveyor in 1816. Cross-examined. The John Melchior survey of which I spoke, is on the north side of Schuylkill, (looks at draft of survey made 17th of July 1766, for John Melchior.) This is the land of which I gave Mr Shoemaker a copy ; I did not know whether it extended across Schuylkill or not. This diagram, (referring to one,) I made last night ; it shows the land in dispute, and John Melchior tract, to which I referred Shoemaker. At the time the land was taken up, I knew nothing of the Melchior and Lindermuth application. Re-examined. I think it was the John Melchior survey across the creek owned by John Pott, that I gave to Shoemaker to take along to Harrisburg ; I think at one time when I surveyed the land there was a talk that old Henry Strauch owned the land, and we talked about it, and he said he did not care about it, for it was not returned. I do not know that we had any conversation about it since ; I do not know whether I surveyed it on the warrant or whether Roseberry did it ; I had no knowledge of any title when I sur- veyed it ; I investigated the lines after suit was brought ; I do not recollect when the conversation was, but Shoemaker was along then. Re re-examined. (Looks at draft) I do not know whether this is an official paper or not ; the one from which I made the copy after the 7th of September 1818, was a copy in John W. Roseberry's hand-writing. John Pott affirmed. I do not know of Shoemaker's having any knowledge of Strauch's claim prior to 1816. Daniel Brittain sworn. I lived this side of Shoemaker's tavern, about one mile this side of Pottsville, a few rods from Shoemaker's, in 1816 ; I never heard Shoemaker say any thing about taking up land, nor any person in his presence, nor of this land being any person's else ; I do not know that Shoemaker knew of Strauch's claim ; he resided a mile or a mile and a half from the land. Defendants then gave in evidence the following, to wit : 1816, March 27th. Application of George Shoemaker. 1766, July 19. Survey of John Melchior, on application, No. 1520, dated 21st May 1766. The plaintiffs, further to maintain the issue on their part, offered to prove that the land was assessed and taxed as the property of Henry Strauch from the year 1805, up to the year 1817; that Strauch used it as his woodland for all the purposes of supplying his farm with wood, every year in that time, for fire-wood, rails, and timber to saw ; that Shoemaker lived within one mile of the land all that time and in sight of it ; kept tavern, and on the pub- May 1841.] OF PENNSYLVANIA. 171 [Strauch v. Shoemaker.] lie road ; that Strauch passed from his residence to the land, and that Strauch and Shoemaker were all that time upon terms of in- timacy, and that Strauch during all that time claimed title to the land. This evidence was objected to as not being in order not rebutting; and rejected by the court, to which plaintiffs ex- cepted. The plaintiffs requested the charge of the court, upon the fol- lowing points, specifically : 1st. If the application under which the plaintiffs claim the land is descriptive of the land in question, and of which the jury are to judge, a levy and sheriff's sale of the one moiety thereof, owned by John Melchior in 1771, would be valid, and would pass the title thereto, although there was in fact no survey. This proposition is correct, and has already been answered in the previous part of this charge. The purchaser would, however, be bound precisely as the original applicant would have been, to proceed with the diligence required by law to have his survey made and returned. 2d. Whether there has been an actual abandonment of the title under the application, is a question of fact for th consideration of the jury. This is conceded to be true as a general rule. The court, how- ever, do not think that in the present case it is so much a question of abandonment, as a question whether the plaintiffs have not lost any claim they had under the application, No. 2283, by negli- gence in not having the survey made and returned before George Shoemaker had obtained his warrant of the 1st of April 1816, and his survey thereon upon the 27th of the same month, which was returned into the surveyor general's office, on the 12th of September 1818, nearly two months before the survey on the ap- plication was returned by the deputy surveyor. The third point is If the land in question was unseated, and in 1817 was assessed with the payment of taxes in the name of Henry Strauch, and sold by the treasurer of the county for the payment thereof to the commissioners, and by them to the plain- tiff, John Strauch, by such assessment the land is made debtor, and not merely the title of Henry Strauch ; and such sales would pass a good title to the land in question to the plaintiff, John Strauch, upon which he is entitled to recover in this action, and any abandonment of the title under the application, cannot affect his rights ; there being no evidence that the land was assessed in the name of any other person, or that any other person paid the taxes therefor. To this proposition the court do not assent. If the title under the application had been abandoned or lost by negligence, so as to let in an intervening claim, a sale for taxes, (if the assessment and description of the land had even been such as would have 172 SUPREME COURT [Harrisburg [Strauch v. Shoemaker.] devested Henry Strauch and John Klingeman of their title, if they had acquired one such as took place here,) would not have devested George Shoemaker of the title he might have acquired under his warrant and survey. In other words, a sale for taxes under an assessment upon one title which fails, will not affect the title of the owner of a better and independent original title to the same land. The facts of the case are submitted to you for your determina- tion ; the law you will take as laid down by the court. If our opinion of the law is erroneous, it will be corrected by a higher tribunal. Should you take the same view of the facts which the court have, then upon the law arising upon these facts, the defend- ants will be entitled to your verdict. Errors assigned : 1. The court erred in rejecting the evidence stated in the 1st, 2d, and 3d bills of exceptions. 2. The court erred in their answers to the 2d and 3d points, upon which they were requested to charge the jury. 3. The court erred in referring to their own opinion in the case of Powell and Barrington it having had no application to the cause trying, and having had a tendency to mislead and confuse the minds of the jury. 4. The court erred in giving it in charge to the jury, that if the land in question was assessed with the payment of taxes in the name of Henry Strauch, who was claiming to own the same, and sold by the treasurer of Schuylkill county, under the laws regulating sales of unseated lands for the payment of county taxes, such assessment and sale only disposed of the title of Henry Strauch, and if George Shoemaker then held a better title thereto than Strauch, such sale could not affect him, although he, Shoemaker, paid no taxes on the land. 5. The court erred in giving it in charge to the jury, that none of the provisions of the laws were complied with in the tax sale ; and the charge is otherwise inexplicit, contradictory, and incor- rect. Bannan, for plaintiff in error. The evidence contained in the bills of exception, was offered to show that the original title of 1767 was not abandoned. There was an attempt made to survey it in 1769, as appears by the memorandum on the survey. In 1771 it was sold by the sheriff. In 1806, after the title had pass- ed by conveyance, the survey was completed ; and although not returned until 1818, yet the evidence showed clearly that Shoe- maker knew the land had been appropriated. It was important for the plaintiff to show that he had paid the taxes for the land, and used it by cutting timber upon it, for that gave him that kind of possession which would be notice of his prior right. 9 Watts 111, 67 ; 17 Serg. $ Rawle 350 ; 9 Watts 341. Nor was the evi- May 1841.] OF PENNSYLVANIA. 173 [Strauch v. Shoemaker.] dence thus offered out of place, for it was strictly rebutting. It was not necessary that the plaintiff should furnish evidence to supply the want of a return of survey until the defendant had shown his title. But the sale of taxes is decisive. The point -is clearly settled upon principle and by authority, that it matters not in whose name the land is sold, if it be otherwise identified as the land sold. It is the land which is debtor, and not its owner ; it is the land which is sold, and not the alleged owner's title only. 2 Watts 390 ; 5 Watts 287; 13 Serg. fy Rawle 360; 2 Penn. Rep. 496; 4 Watts 363 ; 7 Serg. $ Rawle 372. Farquhar and Greenough, for defendant in error. The evidence offered of the payment of taxes and cutting timber, could not sup- ply the want of a return of survey, which is essential to the plain- tiff's title. 1 Penn. Rep. 74,454; 2 Penn. Rep. 384; 1 Watts 48; 4 Watts 140 ; 5 Watts 222 ; 5 Watts 524, The office of the sur- veyor-general is the only place to look for the existence of a title. If the owner of land is to be bound by a treasurer's sale for taxes, it should contain such notice and description as to identify the land. The law requires publication of the sale, and of what avail would this be, if a sale may be made upon an advertisement which contains neither the name of the owner or warrantee ? 7 Watts 490; 9 Watts 323; 13 Serg. <$> Rawle 150. The opinion of the Court (Huston J. dissenting) was de- livered by ROGERS, J. In several cases, particularly Chambers v. Mifflin, (1 Penn. Rep. 74) Addleman v. Masterson, (1 Penn. Rep. 454) and Star v. Bradford, (2 Penn. Rep. 393) it is ruled, that taking out a warrant, or application, and procuring a survey, without more, gives no title to land. That it is necessary for a warrantee, or applicant, not only to have a survey made, but he should have it returned. In Star v. Bradford, it is intimated that the time for returning a survey cannot, under ordinary circumstances, be ex- tended beyond seven years ; and that when the question of aban- donment arises from mere lapse of time, where there is no dispute as to the length of it, it is a question of law to be decided by the court, without regard to the intention of the parties ; that pay- ment of the surveying fees will not dispense with the obligation to have the survey returned, for it is the warrantee's duty, not- withstanding, to have it returned. In Brentlinger v. Hutchinson, (1 Watts 52,) the same rule is recognised; and the policy of it is further enforced in Zerbe v. Schall, (4 Walts 138.) In the cases cited, more than seven years had elapsed ; it was, therefore, un- necessary to go further than the cases called for. We now, how- ever, think the time has arrived when some definite rule should be established, and, according to the intimation given, we take occasion to fix the period of time to seven years, in analogy to 174 SUPREME COURT [Harrisburg [Strauch v. Shoemaker.] the fourth section of the Limitation Act of the 26th of March 1786. Negligence, as is ruled in Zerbe v. Schall, respecting a re- turn of survey, when the fees are not paid, is imputable to the owner; if they have been paid, it is imputable, in the first in- stance, to the deputy surveyor ; but where the survey is made within seven years, the fault is imputable to the owner himself. To this principle an exception is made in Star v. Bradford, where the owner of the application has taken possession of the land and has made improvements upon it. It was supposed when this was done, he acquired an equity which it would be unjust to disturb, because of the neglect of either the deputy or himself, and be- cause, from the nature of the transaction, and the notoriety of the possession, a subsequent improver must be aware that it had no cast of abandonment about it. The subsequent appropriation could leave no room to suppose that the warrantee had abandoned his title as unworthy of pursuit. Besides, where possession is taken, it is such an unequivocal act of appropriation, that it would be doubtful whether a locater would be at liberty to reject or re- tain the land, as he pleased, for an indefinite time. For these rea- sons the exception was made, but this is the extent of it, for no- thing short of an actual possession will prevent the operation of the rule in favour of an intervening right. For notwithstanding the property, which was unseated, may have been assessed and the taxes paid by the owner, that he used it, as woodland, for the purpose of supplying the farm on which he resided with fire-wood, rails, and timber, that he claimed title, and this with the know- ledge of the improver; yet, after the lapse of seven years, his right is for ever postponed to the intervening right which attaches to an improver or to the owner of a warrant with a survey. The same reasons which induced the decisions in the cases cited, ap- ply in full force here. It cannot be endured that a person who has paid nothing shall be at liberty to hold the state bound for an indefinite length of time, while he himself is at liberty to reject or retain the land at his pleasure. The owner is chargeable with laches, for even the payment of the surveying fees does not re- lease him from any further attention to the completion of his title. He is still bound, at all events, to see that the survey is returned, or he must be content to abide the consequences of his supineness and neglect. Justice to the state particularly requires that the rule be rigidly enforced. But although the evidence was properly ruled out for the reasons indicated, yet, it may be worthy of con- sideration, whether, on another trial, it may and ought not to be received as evidence of the identity of the tract, which is a mate- rial question in the cause. The court instructed the jury, that a sale for taxes, under an assessment upon one title which fails, will not affect the title of the owner of a better, and independent original title to the same land; or, in other words they put the title of a purchaser at a May 1841.] OF PENNSYLVANIA. 175 [Strauch v. Shoemaker.] sheriff's and treasurer's sale on the same footing. The correctness of this part of the charge depends on the construction of the 5th section of the Act of the 3d of April 1804, which provides, " that sales of unseated land for taxes, &c., shall be in law and equity valid and effectual, to all intents and purposes, to vest in the pur- chaser, or purchasers of lands sold, all the estate and interest therein, that the real owner or owners had at the time of such sale, although the land may not have been taxed or sold in the name of the real owner." In Luffborough v. Parker, (16 Serg. 4* Rawle 351,) a sale for taxes was held good, when assessed in the name of Nathan L., and sold for taxes in the name of Nathaniel L. The variance was held to be immaterial ; the Chief Justice remarking, that he could not perceive that the case was worse for the purchaser, than if it had been taxed and sold in the name of a stranger. Here it is plainly intimated, that whether the per- son in whose name it is sold has title, is immaterial. The same intimation is given by Mr Justice Huston, in M'Cord v. Bergautz, (7 Watts 490,) and Morton v. Harris, (9 Watts 323.) In Caul v. Spring, (2 Watts 396,) this language is used : " a sale of un- seated land for taxes, vests the title, when regularly made, in the vendee, to the exclusion of all claimants to the land of a prior date." And in Fager v. Campbell, (5 Watts 288,) it is said, " the land itself, and not the owner of it, is debtor for the public charge ; and it is therefore immaterial, at the moment of sale, what may be the state of the ownership, or how many derivative interests may have been carved out of it. With these the public has no concern. They are sold with the land, Just as a remainder would be sold with the particular estate. In Fager v. Campbell, the sale for taxes devested the lien of a mortgage, and the principles on which the case was ruled apply with great force to this point. Thus the case stands on authority, and although some may sup- pose, which is at least doubtful, that the point is not directly de- cided, yet such a concurrence of opinion is indicated, as goes very far to settle the question. The land, and not the owner, is the debtor for the public charge ; and this shows clearly the dis- tinction between sheriff's and treasurer's sales. In the one, the thing itself is sold; in the other, the right of the debtor only. I have examined the section with some care, and it seems to me that it would puzzle the legislature to use language more signifi- cant and apt to indicate the intention that the complete title or ownership of the land sold, in whomsoever it may be vested, shall pass by the sale to the purchaser. The vendee acquires all the interest of the real owner, although the land may not have been taxed or sold in his name. This construction not only accords with the words of the Act, but the Act itself, so construed, is eminently calculated to benefit the county, the purchaser, and the owner himself. It greatly adds to the facility of collecting the county rates, by enforcing greater attention and vigilance in 176 SUPREME COURT [Harrisburg [Strauch v. Shoemaker.] their payment, it prevents a sacrifice of the property in conse- quence of doubt as to the title, thereby benefiting both owner and purchaser, and, what is of still more consequence, it confers a lasting benefit on the public, by greatly aiding the improvement and settlement of the country. It is said, that it may lead to land cases. This is barely possible ; but admitting the truth of this assertion, yet individuals must yield part of their rights, to advance the common prosperity. But in what does this danger to the rights of individuals consist ? A vigilant owner has nothing to fear. All he has to do is to pay his taxes, and this he is bound to do upon every principle of equality and justice. Nay, more, when this has been omitted by him, the legislature has allowed him to redeem his land within two years, terms by no means onerous. There is then no hardship in his case, and he comes with a bad grace to complain of a loss occasioned entirely by his own negligence, or perhaps from a less justifiable cause, a desire to escape from that equality in the burthens, which are indispensable, and which have been imposed for his own, and the public benefit. When unseated land, which is the subject of taxation, is sold, the title of the real owner, whatever it may be, passes to the purchaser, whether it be assessed and sold in his name, the name of the warrantee, or a stranger ; and whether the person in whose name it is taxed and sold, has or has not any title. I understand the point was ruled by the able and learned judge of the Common Pleas, because some doubts had arisen in respect to it. We fully concur with him in the propriety of settling the question, as we think it would be most unfortunate, if at this time, when the com- monwealth is about to take a new start in the career of improve- ment, any suspicion should be cast upon the numerous titles which are held under treasurer's sales. The court is therefore of opinion that the judgment be reversed, and a venire de now awarded. HUSTON, J. The affairs of this world are apt to run into ex- tremes. From the settlement of the province until since 1815, no sale made by commissioners, treasurer or sheriff, for taxes, was ever held valid, nor did any purchaser hold the land under such sale, unless lapse of time made his title good. This was found to be a great evil ; after the purchaser had made the land valuable by improvements, the former owner, or oftener some neighbour using his name on a speculating contract, swept away the labour and land from the purchaser. To remedy this state of things the Act of 1815 was passed, which prescribed that sales of unseated land, for unpaid taxes, should be made on a certain day in June every two years allowed the former owner two years from the sale within which he might redeem and if not redeemed within that time, dispensed May 1841.] OF PENNSYLVANIA. 177 [Strauch v. Shoemaker.] with the proof which had been formerly required of the election and qualification of assessors, commissioners and treasurers with proof of regularity of all acts done by each of them with pro- ductions of all the newspapers (four of them) in which the lands were advertised, as directed by law, for weeks or months in short, with proof at the trial, that each minute direction of the Acts of Assemby had been complied with ; and it was thereby " declared that so much of the Act to which this is a supplement, as requires notice of the taxes being due, and sale thereon, to be given in certain public newspapers, is repealed, and no alleged irregularity in the assessment, or in the process, or otherwise, shall be construed or taken to affect the title of the purchaser." Several decisions of this court have given full and fair effect to this law. At length cases occurred going to show that enormous frauds were attempted, under the idea that any sale by a treasurer would be held to pass the title ; lands taxed as seated, this appear- ing by regular evidence in the commissioners' office, were sold as unseated ; lands never assessed as unseated, nor taxed as such, nor advertised at all, were handed to the crier and sold ; the sale entered by the treasurer in his list of sales, and a deed made to the purchaser, without further inquiry. These sales have not been decided to be valid. But we have repeatedly decided that it must appear that a tax was assessed by the commissioners, though it was not necessary to show it in all or any one respect regular ; in other words, that the treasurer, who, either through negligence or for a worse reason, sold lands never assessed at all or never assessed or advertised as unseated, passed no right by his deed. 4 Watts 363. In Morton v. Harris, (9 Watts 319) we had a case differing from any prior one formerly decided. In 1811 and until 1813, when he sold it to one under whom defendant held, Christian Leonard owned a tract of patented land containing 328 acres 51 perches, and also three other tracts, the quantities of which added together amounted to 1030 acres. These four tracts had been assessed separately and taxed separately, each for its proper quantity ; but were advertised and sold as one tract, 1030 acres, the property of Christian Leonard. The purchaser conveyed the patented tract to John H. Harris. Defendants had entered on the land under the conveyance from Leonard made in 1813; this entry was after the treasurer's sale under which plaintiff claimed. This court decided that the deed under which plaintiff claimed passed no title to the purchaser from the treasurer's sale. The written opinion contains the conclusions of the judge who wrote it ; and those reasons may be all or only part of the reasons on which the whole acted. The conclusion that the sale vested no title is the decision of the whole court. The directions that the treasurer shall advertise each tract for a certain length of time are not repealed by the Act of 1815; but the necessity of proving i. 23 178 SUPREME COURT [Harrisburg [Strauch v. Shoemaker.] the regularity and continuance of the advertisements is dispensed with from the expiration of two years after the sale. Landholders at first complained of that law as harsh in its provisions ; but it was necessary. It is not necessary that courts should carry the law, by construction, further than its letter and spirit will war- rant. It provides that sales for taxes shall take place biennially on a certain day in June, so that each landholder may examine and see if his lands will be sold. It provides that advertisements specifying each tract shall be published a certain length of time in the county and in two daily papers in the city of Philadelphia. These provisions were intended to leave the land owner with- out excuse, if his land was sold and not redeemed, and thus lost to him : but if the advertisement contains nothing to induce a suspicion that his land is advertised and will be sold if, on going . to the county within two years and examining the lists of sales, he is unable to discover that it has been sold, and thus cannot redeem it and yet his land is taken from him it would be what the law did not intend ; it would be producing injustice where the law and law-makers intended none ; it would be turning the provisions of the law, intended fairly and honestly to give notice, into a fraud- ulent and deceptive means of depriving a man of his property. The law does not confiscate a man's land although he does not return it to the commissioners, and they do not know of it and do not tax it. The Act of 1806 directs that if land is not returned by the owner and not taxed, a fourfold tax may be assessed on it when discovered ; this penalty may be imposed, but no other. The act of the 3d of April 1804 makes it the duty of the deputy surveyor to return, on application of the commissioners, a list of all warrants and orders of survey executed by themselves or their predecessors, of the number of acres in each survey, the waters on which it lies, and the township, if known, and the names of the original warrantees. All this, and the manner of the advertise- ments required by law, show an intention to remove all pretence of want of notice to the owner, and to enable the assessors and commissioners and treasurer to designate what is taxed ; to enable owners to pay or redeem within two years, and the purchaser to know what he has bought, and to take possession of it. Let it be recollected that the Act of 1815 does not dispense with any of these requisitions, but dispenses with proof that every thing was done in the time and manner prescribed, unless the suit is brought within two years after that period the landholder cannot re- quire proof of the election and oath of assessor, or commissioners, or treasurer, or the production of all the newspapers in which the lands were advertised ; but says nothing to excuse such designa- tion of the specific tract as will comply with th6 spirit and mean- ing of the law, and give notice to the owner and purchaser of what is taxed and what is sold, and must be redeemed, or lost ; when the owner redeems, he must pay all costs ; if the advertisement May 1841.] OF PENNSYLVANIA. 179 [Strauch v. Shoemaker.] gives no notice, if it is not necessary that it should give any no- tice, why does the law require it ? why must the owner pay the expense of it ? But it is said the 5th section of the Act of 1804 cures this. It is, " Sales of unseated lands for taxes now due, or that may hereafter become due, made agreeably to the directions of this Met, shall be in law and equity valid and effectual to all intents and purposes, to vest in the purchaser of land sold as aforesaid, all the rights and interest therein, that the real owner thereof had at the time of such sale, although the land may not have been taxed or sold in the name of the real owner thereof." It will be observed that this does not apply to the designation of the identical tract sold, but to the ownership of such tract. It will be also recollected that the com- missioners are required by the first section of the act to give the name of the warrantee or person to whom each tract was granted, and the number of acres surveyed on such grant. By the second section, all unseated lands owned by individuals, companies or bodies corporate, shall be taxed, &c., &c. If the commissioners knew the owner, it might be, and was, and is generally charged to him on the commissioners' books : but the owner last year may have sold, and the commissioners may not know this, and sell it as the property of one who is not the owner : to guard against the effect of such a mistake, the fifth section above was enacted. If the warrantee is named, it is immaterial whether the name of the owner is correct or not. The name in which it was originally granted generally designates the tract beyond mistake. In some parts of the state, the No. of the warrant designates the specific tract sold, and this is the substantial and conclusive ground of Luffbarough v. Parker, (16 Serg. fy Rawle.) The No. of the tract and the range of donation land in which it lay, designated the tract sold beyond the possibility of mistake. That case presented a question totally different from this. The tract there was identi- fied ; no dispute what tract was sold. The question was, whether the advertisement gave legal notice to the owner. Here the question is, did the advertisement of a tract of warranted land, of Henry Strauch, 100 acres, give any notice to George Shoemaker, the owner of a tract warranted and surveyed to himself, containing 300 acres. If it is said the description in the assessment, " war- ranted," is not material, I ask, if this land in the same sales had been taxed and advertised and sold as land held on a location to Michael Lindermuth and John Melchior, and the two purchasers contended for the right, would not he who bought under the true description have held the land ? On this part of the case I would refer to the case of Sheaffer v. M^Kabe, (2 Watts 421.) If the doc- trine contended for in this case is held to be correct, a great part of what is written by the Chief Justice in that case, is wrong. But to come to the case in hand. Until Shoemaker took out his warrant, I admit that Strauch might have had his survey re- 180 SUPREME COURT \Harrisburg [Strauch v. Shoemaker.] turned. On the 1st of April 1816, Shoemaker took out his war- rant, which was surveyed in the same month ; after this Strauch's right to that land, and all pretence of right, was irrevocably gone. See Zerbe v. Schall, (4 Watts 140) and cases there cited; Steinmetz v. Logan, (5 Watts 524.) This right being extinct, so that Strauch or a purchaser from him could never recover so that if levied on and sold by the she- riff for a debt the purchaser could never recover ; how can this purchaser recover ? Shoemaker's right was not sold, or pretended to be sold. The tax for which Strauch's right was sold was as- sessed in 1817, after he had ceased to have any colour of right. On what principle of law, justice, or reason, can a sale of a void right give a good title? But it is said the land is taxed, not the title. To a certain extent I admit this ; but the assessment and adver- tisement must show what land it is which is taxed and sold, otherwise assessment and advertisement are worse than useless, and had better be abolished. No case can show the effect of this doctrine more strongly than the present. In 1817, Henry Strauch knew his right to this land was gone ; he lived near ; he saw it advertised and sold in 1820, and again by the commissioners in 1826; he does not redeem, though $15 would have restored his right ; but he knew that right was worthless : of his own inge- nuity, or on cunning advice, he held back, but his son employs a man to buy for him, and for $15 given for a worthless claim he is to take what Shoemaker had a good right to, and for the half of which right Lippincot had paid 82500, and he lies by until an- other purchaser gives $4000 for the other half. And it is now contended that a purchase of a worthless title destroys and overcomes a perfectly fair and legal title, and all this without the owner of the valid title having any knowledge or notice of what was going on. I can never agree to a decision founded on such prin- ciples, and producing such effects. Judgment reversed, and a venire de novo awarded. May 1841.] OF PENNSYLVANIA. 181 Eberman against Reitzel. A claim which is founded upon a transaction which is either malum prohibi- lum or malum in se, cannot be enforced by an action of any kind. A contract of purchase of a prize lottery ticket, the sale of which was prohi- bited by law, cannot be enforced by action, nor will the purchaser be entitled to recover in an action for money had and received upon proof that the seller of the ticket received the amount of the prize money. ERROR to the District Court of Lancaster county. John Eberman against Philip Reitzel. This was an action on the case for money had and received. The defendant was a lottery broker in the city of Lancaster, and as the plaintiff alleged, contracted to sell him the one-fourth of a ticket in the New York Consolidated Lottery, Extra Class, No. 37. The ticket was not delivered by the defendant to the plaintiff, and after the drawing the defendant received the pro- ceeds of the prize which it drew, amounting to $5312.50. The defendant made defence on two grounds : first, that the contract of sale had never been made ; and second, that if it had been, the sale of foreign lottery tickets was prohibited by the laws of Pennsylvania, and this was a bar to the plaintiff's reco- very. The court below (HAYS, President) was of opinion that the con- tract of sale of the ticket was not executed so as to entitle the plaintiff to recover, but referred the facts in reference to this part of the case to the jury, with instructions that on the second ground of defence taken by the defendant, the plaintiff was not entitled to recover. Fordney and Montgomery, for plaintiff in error, contended that although the sale of the ticket was illegal, and as a contract of sale could not be enforced, yet the sale having been made, and the prize-money received by the defendant, he thereby became a trustee of the plaintiff, and liable to this action for money had and received. 7 Johns. 434 ; 2 Hall's Rep. 526 ; 3 Term Rep. 418 ; 2 Wils. 309 ; Cowp. 790 : Doug. 696. Franklin, for defendant in error, on the same point, cited Purd. Dig. 344; 1 Smith 246, Act of 17th of February 1762, sec. 4; Penn. Laws of 1811, 226, sec. 27; 4 Serg. fy Rawle 151 ; 5 Johns. I. Q 182 SUPREME COURT [Harrisburg [Eberman v. Reitzel.] 327 ; 6 Term Rep. 405 ; 2 Hen. Black. 379 ; 2 Caines' 147 ; 1 1 Serg. $ Raivle 164; 3 Taun. 6; 2 Bos. <$> Pul. 371 ; 3 Fez., /r. 373. The opinion of the Court was delivered by HUSTON, J. John Eberman brought this suit to recover from the defendant the amount drawn on a quarter-ticket in the New York Consolidated Lottery, Class No. 37, for 1833. Philip Reitzel was a vender of lottery tickets in the city of Lan- caster ; John Eberman, a citizen of Lancaster ; the ticket, if bought by him, was bought in Lancaster. There was much testimony as to the facts. Plaintiff alleged that he had selected the ticket, and directed it to be laid by for him until he would call and pay for it ; this a few days before the drawing of the lottery. Defendant alleged, that it was the custom, well known to the plaintiff, that the purchaser should call and pay for such ticket so laid by, before the drawing was had, and if not so paid for, the ticket was, on the day of the drawing, put among the undrawn tick- ets, and the man who had selected it, but not paid for it, in such case was not considered a purchaser, and had no right to the ticket or any prize it might draw ; that such tickets were not entered as sold until paid for, but became the property of the owner of the office. The ticket in question drew the one-fourth of $25,000 ; and Reitzel drew the money and claimed it as his own, as being drawn on an unsold ticket. Eberman did not offer to pay for it until it was known it had drawn a prize. There might have been some difficulty in the case, as the testi- mony was in some respects variant, but the defendant also relied on what follows : The Union Canal in this state had, by Act of Assembly, at that time the exclusive right to sell lottery tickets in this state, in its own lotteries, and the sale of lottery tickets in any other lottery, either in this state, or tickets of lotteries in other states, was pro- hibited under a pretty severe penalty. The judge, after stating the facts and submitting them to the jury, said, " but supposing these points to be found in favour of the plaintiff, can he recover in this case, being a suit founded on the sale of a lottery ticket prohibited by law ? I am of opinion he cannot. The transaction on which the suit is founded, out of which it has grown, and with which it is connected, so as to make it necessarily a part of plaintiff's case, being illegal, this action cannot be sustained." This was the only point argued and decided here. If this opin- ion is correct, there is an end of the cause. It was admitted the sale of the ticket was illegal, and that no suit could be supported on the contract of sale. But it was at- tempted to take a distinction, and contended that Reitzel received May 1841.] OF PENNSYLVANIA. 183 [Eberman v. Reitzel.] the amount of the prize as the agent of the plaintiff, and held the money as trustee for plaintiff. The two cases principally relied on by plaintiff's counsel were Browning v. Morris, (Coivper 790,) in which it is said there is a difference between the person who insures lottery tickets, on whom a penalty is imposed, and the person insured, on whom no penalty is imposed. Yet, it is expressly said, the law which will admit him to recover the premium paid, will not assist the party who made the illegal contract to recover from the office-keeper any money he may win. 1 am not sure the position taken in the first part of this case is supported by either prior or subsequent cases. 2 Hall's Reports 526, was much relied on. In that case the sell- er of the ticket received the prize-money from the managers of the lottery, as agent for the holder of the ticket. After this, Kane, the owner of the ticket, lent part of the money to the man of whom he had bought the ticket, and took his note. To a suit on this note, the illegality of the sale of the ticket was set up as a defence. The court admitted that Kane might not have been able to obtain the prize-money, but having got it, and lent it, the bor- rower could not go back and inquire how Kane got the money, even though the borrower was the person who sold the ticket in violation of law ; no third person claimed it, or denied Kane's right to it. It is sufficient to say that is not the case before us. The plaintiff here never had the money in question. The defend- ant never admitted the plaintiff's right to it. This matter is not new in this state. In Mitchell v. Smith, (1 Binn. 110,) which was a suit on a note given for a Connecticut title to lands, a sale of which was prohibited by Act of Assembly, the defendant had the land and was living on it. The broad principle was laid down and supported by reason and abundant authority, that a contract made in a matter prohibited by statute, cannot be enforced in a court of the state, though not expressly declared to be void by the Act of Assembly. Forbidding a thing, and imposing a penalty, is a prohibition, and neither party can sustain any suit on such contract. In Seidenbender v. Charles's Administrators, (4 Serg. 4* Rawh 151) this matter came again before this court, was argued by the most able counsel, and a seriatim opinion by each of the judges, and decided in the same way. The matter ought to be consid- ered at rest here. As to the distinction attempted to be taken, making one of the parties to the illegal contract, and who has received money on it, a trustee for the other ; this also has been solemnly decided. In 6 Durn. <$ East 405, an Act of Parliament had forbidden all companies or associations of men (except certain incorporated companies) from insuring. A, B, and C, agreed to be partners in insuring, and A alone signed the policies. B and C, who seem 184 SUPREME COURT [Harrisburg [Ebcrman v. Rcitzcl.J to have been brokers, received the premiums to a large amount. On a suit by A, he could not recover either the whole or a pro- portion of the money received by B and C. The business was prohibited ; and it was not allowed to turn a party in the illegal transaction into a receiver or trustee for the other, and thus hold them liable to a suit by him. Edgar v. Fowler, (3 East 222) is even stronger. An account had been rendered, snowing a balance due one party ; notice had been given not to pay it over. Lord Ellenborough said the money does not appear to have been paid into the defendants' hands. Where the contract is illegal, the money may always be stopped while it is in transitu to the person who would have been entitled to it if the contract had been lawful. Wherever the transaction on which the claim is founded must necessarily be proved to make out the plaintiff's case, and that transaction is malum in se, or prohibited by legislative enactment, there can be no recovery. The rule must be general, and not frittered away, nor lost sight of, by changing the form of action or giving plausible names to forbidden acts. Judgment affirmed. Law against Patterson. An entry upon the whole of the land by one tenant-in-common, who takes possession, as if it had been his own exclusively, and receives the rents, issues, and profits thereof, without accounting to his co-tenant for any part thereof, or proof of any demand upon him to do so, for twenty-one years, amounts to an ac- tual ouster, and will bar the other tenant-in-common of his right. An adverse holding by one tenant-in-common, for any length of time, however short, previously to the institution of an action of partition, will bar a recovery in such form of action. ERROR to the Common Pleas of Juniata county. This was an action of partition by William H. Patterson, Rob- ert Patterson, Andrew Patterson, and John Patterson, devisees of John Patterson, deceased, against Benjamin Law, in which the plaintiffs claimed to recover equal partition between them and the defendant of a tract of land in Milford township, and of a house and lot in the borough of Mifflin town. The whole case, and all the points raised in it, are fully stated in the opinion of the court. Benedict and Blanchard, for plaintiff in error, argued that if May 1841.] OF PENNSYLVANIA. 385 [Law v. Patterson.] one co-tenant take possession of the land, as if it were his own, and received the rents, issues, and profits, made improvements, paid taxes, without any accountability or demand upon him to account for twenty-one years, it raised a legal presump- tion of ouster, which would protect him in his possession, and cited 10 Serg. fy Rawle 187; 9 Watts 363; Cawp. 217; 3 Watts 74; 7 Watts 35; 5 Watts 49, 185. Parker and Reed, for defendants in error, on the same point, cited 10 Watts 289; 3 Watts 167; 3 Watts 76; 2 Penn. Rep. 183; 10 Watts 189. The opinion of the Court was delivered by KENNEDY, J. The first error is a bill of exception to the opinion of the court, rejecting certain evidence offered by the plaintiff in error, who was the defendant below. The object of the evidence was to prove that in the year 1814, a dissolution of the partnership, which had previously existed between John Pat- terson, the devisor of the plaintiffs below, and Benjamin Law, the defendant, was advertised by them by means of hand-bills in writing, put up at various places, stating the fact. The witness, however, could only testify that he saw a hand-bill in writing, of that import, put up at a particular place, but by whom written or put up he did not know. This was certainly not evidence to show that it was done by Patterson and Law, or by their direc- tion, or by Patterson or his order, and therefore could not be given in evidence, for the purpose of affecting the rights of those claiming under him. The court was therefore right in rejecting the evidence. The remaining errors, with the exception of the last, relate to answers given by the court to certain points submitted by the counsel respectively of the parties. But before proceeding to notice the answers of the court thus excepted to, it may be proper to observe that this is an action of partition ; and to state first the facts and the evidence involved in the points, the answers to which have been assigned for error. Partition is claimed by the plaintiffs, as the devisees of John Patterson deceased, of two parcels of property, mentioned in the declaration. The first is a house and lot of ground, situate in the tow r n of Mifflin ; and the second, a farm or tract of land situate in the vicinity of the town. The defendant below pleaded non tenent insimul; and that he was sole seised, and had been so for more than twenty-one years. Issue was taken on both of these pleas ; though it must be re- marked, that the second was very anomalous, and altogether inapplicable to the action ; for the jury might have found in favour of the plaintiffs below on it, and yet the plaintiffs and the defend- ant, notwithstanding such finding, might not have been holding together the property described in the declaration, at the time of I. 24 n ^ ^i No. 72, April Term, 1820. Juniata Bank ^ $1000.00 TV -jo' f Interest from 10th of March 1820 David Reynolds. J Costs> 7 00 On this $100 paid. mu i TW-II ^ No. 101, August 1821. Thompson & Miller I ^* 0150 00 David Reynolds. US^^*** 1 . 7 . 25 ' Sheriff B.' * The firm of Beale & Reynolds being indebted to David Rey- nolds, the above defendant, for goods, &c., and myself three arks at $90 each, as well as for fees due the said David on the docket of Mifflin county, and collected by me, I do hereby agree to pay the above debts for which I am now liable as sheriff towards the debt due the said David, and hereby say, Received of the above defendant, David Reynolds, the debt, interest and costs of the three several suits above stated, as if the same had been paid to me in cash. I further agree to allow the said David twelve-and-a- half per cent, on the amount payable to the Juniata Bank for the depreciation on the money with which it may be paid. THOMAS BEALE, Sheriff. Lewistown, May 2Qth 1821. To rebut the effect of this, the defendant gave in evidence other executions against David Reynolds which had issued to the coro- ner prior to the date of that in favour of the Juniata Bank, upon which the defendant's personal property had been levied and af- terwards sold for $184.86; and the property levied upon these executions, and sold, was the same as that levied upon the execu- tion of the Juniata Bank by the sheriff. The court below (Burnside, President) instructed the jury that the sheriff's sureties were not made liable by the fact of the May 1841.] OF PENNSYLVANIA. 229 [Juniata Bank v. Beale.] sheriff giving the receipt which had been read in evidence, unless it were made to appear how the plaintiffs in the execution were prejudiced by it : that the sheriff could not intermingle his official duties with his private liabilities ; and if he did so, in the man- ner set out in this receipt, his sureties were not thereby made liable. To this opinion the plaintiff excepted. Parker and Benedict, for plaintiff in error, cited on the first point 3 Watts 135 ; 10 Johns. 478 ; 2 Stark. 769 ; and on the second point 8 Watts 394; 17 Serg. fy Rawle 364; 11 Johns. 269; 8 Johns. 20. Valentine and ./. Fisher, contra, cited 2 Serg. 4* Rawle 122 ; 2 Rawle 199. The opinion of the Court was delivered by KENNEDY, J. This suit was instituted upon a sheriff's recog- nizance, by the Juniata Bank of Pennsylvania, against John Beale, administrator de bonis non cum testamento annexo of Wil- liam Beale deceased, who was one of the sureties of Thomas Beale, as sheriff of M ifflin county. Writs of fieri facias, issued in favour of the bank against different persons, debtors to the bank, had at different times been placed in the hands of the said Tho- mas, as sheriff, for execution. It was alleged on the part of the bank that in some instances he had received moneys upon the executions, which he had not paid over or accounted for to the bank ; and that in others he had taken personal property of the defendants named therein, sufficient to satisfy the debts mentioned in the writs, from which he had either made the money, or made himself liable to pay it to the bank, by suffering the property to remain in the possession of the debtors, and to be used and disposed of by them, without accounting to or satisfying the bank in any way for it. Ten errors have been assigned in all ; but with the excep- tion of the first and seventh, not the slightest difficulty is pre- sented in any of them. The matters complained of in them are so obviously right, as to render it somewhat difficult to make them appear more so. They will, therefore, be passed without further notice. The first error is a bill of exception to the court's admission of Levi Reynolds as a competent witness on behalf of the defendant. The witness had been a deputy of Thomas Beale, the sheriff. He was objected to on the ground, as the counsel for the plaintiff alleged, that he was interested in the event of this action ; that he, as deputy of the sheriff, had actually received some of the moneys on account of which this suit was instituted, and had like- wise, in the same character, executed some of the writs of fieri facias, by seizing the personal property of the defendants therein 230 SUPREME COURT [Harrisburg [Juniata Bank v. Beale.] named, which had never been accounted for to the bank as it ought to have been. But it was not shown that there was any actual delinquency on the part of the witness as deputy sheriff; and in the absence of evidence showing it, we think it would not have been right to have presumed it. lit lay upon the party mak- ing the objection to his competency as a witness, on the score of interest, to prove that he was so, otherwise it was the duty of the court to admit him as competent ; for every person, who is not a party on the record to the suit, is presumed to be free from inte- rest in the case, and therefore competent to testify as a witness in it. Had it been proved to the satisfaction of the court below, that the witness had made himself accountable, as deputy, to Thomas Beale, his principal, for any part of the claim made by the plaintiff in this action, he certainly would not have been a competent witness to prove any thing in regard to it, that would have gone in the slightest degree to have released or discharged his principal, or his estate, or his sureties from their liability. But as nothing of this sort was made to appear, we think that the court were right in admitting Levi Reynolds to testify as a wit- ness on behalf of the defendant. The seventh error, which is the next that we proposed noticing, is an exception to the charge and answers delivered by the court to the jury on the fourth, fifth, and sixth points submitted by the counsel for the plaintiff. That portion of the charge and the an- swers to the points embraced in this error, all relate to a claim made by the plaintiff in this case against the sheriff, arising from his acts and conduct under a writ of fieri facias, put into his hands for execution, at the suit of the plaintiff against David Reynolds, for a debt of $925.24, with interest thereon from the 10th of March 1820. This fieri facias was issued to April term of the court be- low, 1820, No. 72, and placed in the hands of his deputy, to which a return was made, " levied on one carriage and harness, one gig and harness, a quantity of store goods, household furniture," which remained unsold for want of buyers. To January term 1821, a writ of venditioni exponas was issued ; and on the 7th of January 1821, a rule of the court below was obtained and entered, calling on the plaintiff toshow cause why the proceedings in thecaseshould not be set aside. During the pendency of this rule, which, in truth, has never been discharged or disposed of, on the 26th of May 1821, Thomas Beale, the sheriff, gave an instrument of writing, and a receipt, to David Reynolds, the defendant in the fieri facia) to the following effect, to wit : Keller 1 T / No.59,toAugustTerml821. Debt$152.37. David Reynolds ) Interest from 10th of March 1821. Costs 11.50. May 1841.] OF PENNSYLVANIA. 231 [Juniata Bank v. Beale.] Juniata Bank ) No. 72, April Term 1820. Debt $1000. In- v. > terest from 10th of March 1820. Costs $7.00. David Reynolds. ) $100 paid. Thompson & Miller) No. 101 August Term 1821. Debt v. > $150. Interest from 2d June 1819. Costs David Reynolds. ) $7.25. Sheriff B. " The firm of Beale & Reynolds being indebted to David Rey- nolds, the above defendant, for goods &c., and myself three arks at $90 each, as well as for fees due the said David on the docket of Mifflin county, and collected by me ; I do hereby agree to pay the above debts, for which I am now liable as sheriff, towards the debt due the said David, and hereby say, Received of the above defendant, David Reynolds, the debt, interest, and costs of the three several suits above stated, as if the same had been paid to me in cash. I further agree to allow the said David twelve and a half per cent, on the amount payable to the Juniata Bank, for the depreciation on the money with which it may be paid. " THOMAS BEALE, Sheriff. " Lewistown, May 26th, 1821." This receipt was delivered by the sheriff to David Reynolds, and retained by the latter, as it would seem, without being shown to any one, until an adjourned meeting of the court below, held in May 1826, when upon the application of the defendant in the exe- cution, David Reynolds, to the court, the following entry was made on the record of the cause : " Defendant appeared in court, and produced sheriff Beale's receipt for debt, interest and costs, and it appearing to the court that the plaintiff had instituted a suit against the bail of the sheriff, the proceedings in this cause stayed until the determination of this suit." Previously, how- ever, to any writ of fieri facias being issued against David Rey- nolds by the bank for their debt referred to in this receipt, two writs of fieri facias were issued against David Reynolds, one at the suit of William and John R. Worrell, for a debt of $600.51, to January term of the court below, 1820, No. 75, directed to the coroner of the county, to which he returned, " levied one stove, drum and pipe, one set of chairs, one breakfast-table, together with all the personal property of David Reynolds." The other to the same term of the court, No. 97, at the suit of Swedeley & Knight, directed to the same officer, for a debt of $712.44, with interest from the 1st of March 1819, to which the coroner returned : " Le- vied one stove, drum and pipe, one breakfast table, together with all the personal property of David Reynolds." The seizure of the property, by the coroner, under these writs, included all that was taken subsequently by sheriff Beale under the fieri facias of the Bank, No. 72, returnable to the April term following ; and it was 232 SUPREME COURT [Harrisburg [Juniata Bank v. Beale.] all sold by the coroner afterwards upon a writ of venditioni expo- nas to August Term of the court 1822, No. 162, for the aggregate of $184.86. This sum was distributed among several execution creditors of David Reynolds, and among the number the bank was one, that received of it $47.23. It was claimed by the coun- sel for the bank, on the trial of this cause, that sheriff Beale had made himself liable for the whole amount of the bank's writ of fieri facias against David Reynolds. First, because, after hav- ing taken goods of Reynolds of sufficient value to satisfy it, he permitted them to be taken and disposed of by Reynolds. And, secondly, because he gave a receipt to Reynolds, acknowledging that he had made himself liable to the bank for the debt, and that he had received it of Reynolds. The court below, however, in- structed the jury on the first ground taken of liability, that if they believed that all the goods of Reynolds, taken in execution at the suit of the bank by sheriff Beale, were previously taken under prior executions by the coroner of the county, and afterwards sold by him for a sum insufficient to satisfy the prior executions, Beale could not be held liable to pay any thing on account of his seizure of the goods. This instruction of the court we think was perfectly correct, because testimony had been given, going to prove that all the goods, taken in execution by the sheriff, had been taken previously by the coroner, under prior executions in favour of William and John R. Worrell, and in favour of Swedeley and Knight, against David Reynolds, and that they had been sold afterwards for the highest and best prices that could be obtained for them, the aggregate of which fell greatly short of paying the executions under which the goods were first taken and sold. On the second ground, the court instructed the jury that the testator of the defendant in this action or his estate, as the surety of the sheriff, could not be made liable to pay any thing, unless it ap- peared from the evidence, that the instrument of writing, given on the 26th of May 1821, by the sheriff to David Reynolds, had occasioned a loss, in some way, to the bank ; and if it had, then only to the amount of such loss. Now, this direction would seem to have been quite as favourable to the bank as it had any right to claim. For the writing given by the sheriff to Reynolds, showed most clearly on its face, that the sheriff had received no- thing whatever, upon the execution from Reynolds towards satis- fying it, but that the sheriff, in consideration of his indebtedness to Reynolds, undertook with Reynolds to pay the amount of the execution to the bank, and to acquit Reynolds of the debt owing by him to the bank, by acknowledging that he, the sheriff, had received from Reynolds the amount of the execution, the same as if it had been received in cash. If the bank, or its attorney, had been present when this writing was given by the sheriff to Rey- nolds, without objecting to it, and had afterwards attempted to make the sureties of the sheriff liable for the amount of the execu- May 1841.] OF PENNSYLVANIA. 233 [Juniata Bank v. Bcalc.] tion on account of it, would it not have been considered an unfair attempt, to say the least of it, on the part of the bank, as against the sureties, and could it have prevailed ? It seems to me that it could not : and if so, what difference is there between that case and the one under consideration? Here the bank, though not present at the giving of the receipt and approving it, subsequently give their approval of it, and on the strength of it alone wish to make the sureties of the sheriff answerable. It cannot be pre- tended that the sheriff has any authority to make his sureties liable for the payment of his private debts, yet the receipt given by him in this case upon the face of it, and the use that is at- tempted to be made of it, would, if it were to prevail, be giving to him an authority direct to bind them to do so. It is not like the case, where the sheriff being indebted to the defendant in the execution, which he has in his hands to execute, to the amount of it, agrees with the defendant in the execution to pay it for him, in discharge of his own debt, which he owes to him, and gives the defendant in the execution an express receipt for the amount of it, as being received in cash, without more. For there, as it ap- pears from the face of the receipt, that the sheriff has actually re- ceived from the defendant in the execution, the amount of it in money, the sheriff may be estopped from contradicting or explain- ing it by showing upon what consideration it was given. And if he would be estopped, his sureties would be so too, and hence all would be liable. But in the present case, the receipt shows on the face of it that neither money nor any thing else was received in discharge of the execution, not even a release from Reynolds to the sheriff of the debts which the latter owed to him. 1 Inst. 352 b ; Sinclair v. Jackson, (8 Caiven Rep. 543.) Neither can it be pretended here, as in the case just put, that the plaintiff in the execution has or could have been deceived by the terms of the receipt, in regard to what the sheriff actually did towards mak- ing the money upon it. The face of the receipt showed that the sheriff had done nothing whatever to prevent the bank from pro- ceeding by further execution to collect the amount of their debt from David Reynolds. It is also proper to bear in mind that the sheriff, when he gave the receipt in question, had no writ of fieri facias, or judicial process, authorizing him to take the property, either real or per- sonal, of the debtor, David Reynolds, if he had any at the time, for satisfying the debt. So that the sheriff was not chargeable with having granted any indulgence to Reynolds in violation of his duty as sheriff, or with having disobeyed or neglected to perform any duty imposed upon him as sheriff, or to execute any judicial pro- cess in his hands against Reynolds, at the time, to the prejudice of the bank, in any way whatever. He had had a writ of fieri facias, returnable to the April Term of the court 1820, in favour of the bank, upon which he had seized property that was subject, i. 30 u * 234 SUPREME COURT [Harrisburg [Juniata Bank v. Beale.j however, to prior executions against David Reynolds, as has been stated above, in the hands of the coroner. But on the 7th of Jan- uary 1821, previously to the sheriff's giving the receipt, all fur- ther proceeding by him to sell the property so seized, was sus- pended by a rule granted by the court, to show cause why the proceeding in that case should not be set aside. Thus the hands of the sheriff were tied up, so that he could not go on to make a sale of the property he had taken in execution. And if he had not been so prevented, and had made a sale of the property, it would have been fruitless, as was proved afterwards by the sale of the coroner. It is clear, therefore, that before, and at the time he gave the receipt to Reynolds, he had no authority whatever to touch either his person or property, or to levy money of him for the use of the bank. It may possibly be that he might have re- ceived the debt of the bank from Reynolds, if the latter had cho- sen to pay it to him voluntarily, and that his receipt would, in such case, have been a good acquittance ; for seeing the sheriff's authority to act, in the matter, had been suspended at the instance of Reynolds, it might be considered that Reynolds had a right to withdraw the objection made by him to the court, which occa- sioned the suspension of the sheriff's authority to proceed to a completion of the execution against him. But as no money was actually paid by Reynolds to the sheriff, and as the receipt given showed clearly that none was paid ; and as it was impossible that the bank could be deceived or prejudiced in any way by the she- riff's giving such receipt, we, therefore, think that the bank had no right to recover in this action the debt owing to it by Reynolds, from the estate of the sheriff's surety. Indeed it would seem as if the counsel of the bank, in the court below, never entertained the opinion that it was entitled to recover the debt owing by Rey- nolds, on the ground of the receipt given by the sheriff; for it formed no part of their evidence given in chief on the trial of the cause, but was given in evidence after the defendant had closed his evidence in support of his defence, under some notion that it might have an operation as rebutting evidence. Judgment affirmed. .May 1841.] OF PENNSYLVANIA. 235 Reed against Reed. On a sheriff's sale of land, all liens on the land, due at the time of the sale, where they may be reduced to a certainty as to amount, are entitled to payment out of the proceeds: hence the arrears of a widow's annuity, which are due and payable, must be paid out of the proceeds of sale. - In an action against a sheriff to recover the amount of a lien upon land sold by him, where it appeared the sheriff had paid over the money to other lien cred- itors, and taken their refunding receipts, the plaintiff is as well entifled to recover interest as principal. In an action by a widow against a sheriff to recover the arrears of an annuity, which was due and payable out of land sold by him on an execution, the de- fendant cannot set up as a defence or set-off that the plaintiff had received out of another fund of her husband's estate more than she was entitled to. THIS was a writ of error to the Court of Common Pleas of Mifflin county, where judgment was rendered in favour of the commonwealth for Jane Reed against Abner Reed, James Thomp- son, James Milliken, and Joseph Milliken who survived Foster Milliken, in an action of debt on the recognizance of Foster Mil- liken, late sheriff of Mifflin county, and the defendants, for the faithful performance of his duties as sheriff. The plaintiff claimed the amount, with interest, due upon a leg- acy given to her by the will of her late husband, Alexander Reed, from the moneys coming into the hands of the sheriff on a sale of the land of the testator by execution. The bequests in the will of Alexander Reed were as follows : Item 2. I give and bequeath to my wife Jane the ten shares of stock which I hold in the Juniata Bank of Pennsylvania dur- ing her natural life ; she to receive the interest as it may become due during that time, and the stock, at her death, to return to my estate. Item 3. Gives to Abner and John Reed his ten shares of stock in the Centre Bank, they to pay any instalments then due. Item 4. Gives to his sister Mary a bed and bedding his wife to have the first choice of a bed and bedding. Item 5. I give and bequeath to my beloved wife Jane the one- half of all the rest and residue of my personal and moveable estate ; in this bequest is to be included the price of the bed and bedding of which she is to have the first choice. Item 6. I give and devise to my brothers, Abner and John Reed, and their heirs and assigns, as tenants-in-common, all and singular my lands and tenements, with the appurtenances, they paying equally thereout the following, to wit : 236 SUPREME COURT [Harrisburg [Reed v. Reed.] 1. To my wife Jane, the sum of $130 yearly and every year during her natural life. 2. To my brother, Andrew Reed, the sum of $2400, to be paid him as follows, to wit: $1000 at the time of my decease; $500 at the expiration of three years after my decease ; $200 at the ex- piration of five years after my decease ; and the sum of $700 at the decease of my wife Jane. 3. To my brother Thomas Reed $1333, as follows, to wit : $266.67 one year after my decease ; $266.67 two years after my decease; $266.67 four years after my decease; and $533.33 at the death of my wife Jane. 4. To my sister Sarah Heely the sum of $133.33, as follows, to wit : $50 in one year after my decease, and the residue in six years after my decease. 5. To my sister Mary, wife of John Thompson, the sum of $666.67, as follows, to wit : $266.67 at my decease ; $266 three years after my decease; and $133.33 five years after my decease. 6. To my sister Jane the sum of $800 whenever she shall call upon them for the same. Which said several sums I bequeath to my said wife, brothers, and sisters, to be paid as aforementioned by my brothers Abner and John, out of the land and personal property devised and be- queathed to them. Item 7. I will, devise, and bequeath to my brothers, John and Abner Reed, all the other half of my personal and moveable pro- perty, and all the rest and residue of my real and personal pro- perty to them, their heirs, and assigns for ever. Item 8. I will, devise, bequeath, and direct, that in case any of the legatees, or devisees, hereinbefore mentioned, should die in my lifetime, or before they receive their respective legacies and de- vises, the same shall go, and be vested, and descend according to the last will and testament of such legatee or devisee, or accord- ing to the law of the land, in the same manner as if they had sur- vived me and received their legacies and devises in their lifetimes, respectively. Item 9. Appoints Abner Reed and S. W. Taylor executors. 'To April Term, 1829, a suit was brought by Andrew Reed against Abner Reed, with notice to Abner Reed and S. W. Tay- lor, executors of Alexander Reed, deceased ; and on the 21st of January 1829, judgment rendered for plaintiff for $2746.82, to be made out of the land. A fi. fa., issued to November Term, 1829, which was levied on land, and inquisition held and property con- demned. On a venditioni exponas it was sold for $4050 on the 15th of March 1830, and the sheriff executed and acknowledged his deed for one-third of 350 acres of land, the property of Alex- ander Reed, deceased, subject to the widow's annuity. Of this May 1841.] OF PENNSYLVANIA. 237 [Reed v. Reed.] money the plaintiff claimed the arrears of her annuity, due at the time of the sheriff's sale, with interest on the same from the time they respectively became due, and also from the time of sale. It appeared that the widow had brought suit against the execu- tors and terre-tenants, from time to time, to recover her arrears. On one of these, brought to August Term, 1825, she recovered judgment, on the 8th of November 1828, for the amount due to her to the 21st of November 1824, with interest, amounting to $1438.72. On this judgment a fieri facias was taken out, in 1829, and levied on real estate, and inquisition was held and the land condemned. Another suit was brought to January 1827, and others to January 1829 and January 1831, not proceeded in; several payments being made. The plaintiff called a witness, who proved a demand on behalf of the plaintiff, and refusal of payment ; but the time was not specified. The defendants offered to prove that the widow had received the money from the bank for the stock, the interest only of which was bequeathed to her ; thereby converting the stock into money, contrary to the will, for which she is chargeable. This was done on the 6th of January 1838. This offer being objected to, the court rejected and sealed a bill of exceptions. The court charged as follows : BURNSIDE, President. This cause was before us on a former occasion, and taken to the Supreme Court and reversed. With the lights and authorities we then had, we held that all the legacies chargeable on the same land should abate pro rata. In this it would seem we erred, and the Supreme Court held the law to be that as the widow takes the legacy in lieu of dower, she is a pur- chaser, and takes her bequest without any abatement. This de- cision of the cause does not satisfy the defendant, and he asks us to instruct you, 1st, That the plaintiff in this cause, by bringing suit for her legacy, due since the sheriff's sale, has elected to treat the land sold as subject to her legacy in the hands of the purchaser at the sheriff's sale, and she therefore has no right to receive any part of the fund at such sale ; and 2d, That if the widow claims and receives the amount due her out of the sheriff's sale, under the will out of the fund raised at such sale, she therefore elects to treat the sale as devesting her of her lien, under the will of Alex- ander Reed, upon the land sold, as she cannot resort to both ; and if she receives her money out of the fund raised at sheriff's sale, the purchaser holds the land discharged of her lien ; and lastly, that the plaintiff has no right to recover in this suit. The plaintiff's counsel request us to instruct otherwise. You will observe from the evidence, that there is no lien or in- cumbrance shown on the estate of Alexander Reed in his lifetime ; that the land was sold on a judgment against the executors for 238 SUPREME COURT [Harrisburg [Reed v. Reed.] one of the legacies charged upon it; and that the sheriff's ad- ministrator took refunding receipts for all the money paid. We treat it as if it was here in court for distribution. Under the de- cision of the Supreme Court in this very case, the widow was to be the first paid, and that without any deduction ; all the other legatees were to abate they are entitled to the balance. We instruct you that she is entitled to recover; and as the sheriff either used the money, or took refunding receipts which must pay interest, that she is entitled to interest. It is not necessary to decide further; but it is our opinion that the purchaser at sheriff's sale took the estate subject to her legacy, which was given in lieu of dower, and that it remains a charge on the land for all payments becoming due after the sale. The first payment of $130 will be due one year after the sale ; and no interest is to be charged until the lapse of one year after the death of Alexander Reed. To this opinion of the court the defendant's counsel excepted. Errors assigned : 1 . The court erred in overruling the objections to the admission of the will in evidence as contained in the first bill of exceptions. 2. The court erred in rejecting the testimony as contained in defendant's second bill of exceptions. 3. The court erred in their charge, by instructing the jury, 1st, that the plaintiff was entitled to recover. 2d, that as the sheriff either used the money, or took refunding receipts that must pay interest, that she (the plaintiff) was entitled to interest ; and 3d, that it was not necessary to decide further, but that it was the opinion of the court, that the purchaser at sheriff's sale took the estate subject to her (the plaintiff's) legacy, which was given in lieu of dower ; and that it remains a charge on the land tor all payments becoming due after the sale. Hale and Valentine, for plaintiff in error, contended that the widow's interest was not affected by the sale, but the land in the hands of the purchaser remained subject to her claim, as well that which was due at the time of the sale, as that which would become payable after the sale. There can be no difference be- tween that which is debitum in presenti, and that which is solven- dum infuturo. The lien or charge on the land is an unit, and is either payable out of the proceeds of sale, or it is not ; it cannot be payable out of the proceeds of sale in part, and chargeable upon the lands in the hands of the purchaser in part. We think the whole is chargeable upon the lands. 4 Watts 397 ; 2 Watts 283; 3 Penn. Rep. 368; 1 Watts 261. Dn the subject of interest, they cited 17 Serg. fy Rawle 390. Parker and Benedict, for defendants in error, on the first point contended that the arrears of the annuity, due at the time of the May 1841.] OF PENNSYLVANIA. 239 [Reed v. Reed.] sheriff's sale, was payable out of the proceeds, and cited 4 Rawle 487. On the subject of interest, they relied upon 2 Watts 200 ; 9 Watts 530. The opinion of the Court was delivered by SERGEANT, J. The questions that have been discussed in the argument here, are three : 1st, whether the plaintiff is entitled to be paid the arrears of her annuity, due at the time of the sheriff's sale ; 2d, whether she is entitled to interest, and how much ; 3d, whether the set-off was admissible. 1. On a sheriff's sale of land, it is settled that all liens on the land, due at the time of the sale, when they are capable of being reduced to a certainty, are entitled to payment out of the proceeds. It was long ago decided in Bantkon v. Smith (2 Binn. 146) that arrears of ground-rent, due at the time of the sheriff's sale, are payable out of the moneys raised by the sale. There is no dis- tinction in this respect between a legacy charged on the land and other liens. The only reason why the future arrears of annuity, payable out of the land to the widow, have been excepted, is on account of the impossibility of computing their amount. Therefore, as to them, the purchaser has been held to take the land, charge- able with the future payments. But this reason does not apply to arrears due and payable. They are a fixed and certain debt, capable of exact computation, and therefore entitled to be dis- charged. The purchaser takes the land free and acquitted of them. 2. The court was certainly right in saying, that as the sheriff either used the money, or took refunding receipts which must pay interest, the plaintiff was entitled to recover. This is the rule as to all trustees, executors, and other officers. To avoid the pay- ment of interest, it must appear that the money was held in their hands, neither drawing interest, nor employed by themselves, unless there are particular circumstances to take the case out of the general rule of law. As to the interest prior to the sheriff's sale, though that has been relied on here by the plaintiffs in error, I perceive nothing of it in the charge of the court. That the plaintiff, however, in a case like the present, is entitled to interest from the time each year's sum is payable, was decided in Addams v. Heffernan (9 Watts 530) which is not to be distinguished from the case before us ; and may also be collected from need v. Reed (9 Watts 263) when this case was before the court on a former hearing. 3. As to the bank stock, the widow's receipt of the money was not a subject of set-off. She was exclusively entitled to the inte- rest of it during her life; and if she, owing to the embarrassed situation of the Juniata Bank, procured the money from them, like other stockholders, it would be for her executors to account for 240 SUPREME COURT [liarrisburg [Reed v. Reed.] the proceeds bequeathed over, after her decease, to those then en- titled. No other person had so good a right to receive it, if pay- ment became necessary, as it is stated it did. On the whole, we perceive no error in the charge of the court, or in relation to the evidence. Judgment affirmed. Davis against Church. The registry of a mechanic's lien is no record, and to a scire facias upon it, the plea of nul tiel record is a nullity. Upon the death of a partner, the claims of the firm survive to the survivor, and may be prosecuted in his own name. An amendment at common law is not the subject of a writ of error. ERROR to the Common Pleas of Cumberland county. Robert R. Church against James Davis, administrator, with notice to the directors of the Poor and House of Employment of Cumberland county. Scire facias sur mechanic's lien. The ori- ginal claim filed was as follows : Robert R. Church } TQ the prothon p tary of the Court of Com- JaroJbavis. ) mon Pleas of Cumberland count y* Robert R. Church, Lumber Merchant, enters a lien against a certain frame stable or building erecting, or now erected, by the directors of the Poor and of the House of Employment for the county of Cumberland, upon a certain tract or parcel of land situ- ate in North Middleton township, in the county of Cumberland and state of Pennsylvania, being on the farm of the directors, &c. and adjoining or appurtenant to the main buildings on said farm, and which joins, &c. ; which stable or frame building was erected and constructed by and under the direction of the above-named James Davis, the architect, and for which the following lumber and materials were sold and delivered and furnished and used in the erection thereof, by the said Robert R. Church in (Dates, quan- tities, and prices set out. Amount $200.32.) You will please file the foregoing lien of record in your office, agreeably to law. ROBERT R. CHURCH. 29th September 1832. May 1841.] OF PENNSYLVANIA. 241 [Davis v. Church.] The docket entry is : Robert R. Church, surviv- ing partner of the late firm of Crist & Church Entered 29th Sept. 1832. No. 275, August Term, 1832. The plaintiff files his claim, amounting to $200.32, due him for clumber furnished to James Davis, James Davis. architect, and by him used in the erection of a certain frame stable for the directors of the Poor and House of Employment for the county of Cumberland, upon a certain tract of land, situate in North Middleton township, being on the farm of the said directors, &c., or appurtenant to the main building on said farm, and which joins and is bounded by lands of the heirs of Daniel Holmes, deceased, and others. The above claim is filed for the purpose of making and estab- lishing a lien on said stable, or farm-house, agreeably to the Act of Assembly. The style of precipe for and docket entry of scire facias are, Robert R. Church, surviving partner of the late firm of Crist & Church, v. James Davis, with notice to the directors of the Poor and House of Employment for the county of Cumberland ; and after Davis's death a scire facias in same style v. Eliza Davis, administratrix of James Davis, with notice, &c. The writ recites, that Robert R. Church, surviving partner of the late firm of Crist & Church, filed in the office, &c., a claim amounting to $200.32, for lumber furnished by them, the said Crist & Church, to James Davis, and used by him in building, &c., and the command to show cause, &c. why Robert R. Churcn, surviving partner as aforesaid, should not have execution, &c. Pleas, payment, nul tiel record ; that the materials set forth in the claim filed were not furnished on the credit of the said frame stable, as alleged in said claim and scire facias. Also, that said stable is not bound or liable, &c. Rep. and issues. Plaintiffs asked leave to amend the docket entry to correspond with the lien filed, which was objected to by defendants, and amend- ment allowed by the court. Judgment for plaintiff on the plea of nul tiel record, by the court. On the trial the plaintiff offered the original lien, No. 275, Au- gust Term 1832. Defendants objected, inasmuch as it does not correspond with the scire facias issued afterwards, James Davis being the only defendant there set out on the docket. Objection overruled, and docket entry read to show the time when the lien was filed, and against whom. Exception taken by defendant, &c. It was proved that the lumber was furnished by Crist and Church, and the quantity, price, &c. And the court below (Hep- burn, President) was of opinion that the plaintiff was entitled to recover, and so instructed the jury. Verdict and judgment ac- cordingly. i. 31 v 242 SUPREME COURT [Harruburg [Davis v. Church.] Errors : 1. The court erred in permitting the amendment to be made. 2. In giving judgment for plaintiff' on the plea of nul tiel record. 3. In admitting the lien filed to be given in evidence. 4. The claim filed created no lien, nor liability to the plaintiffs in the scire facias ; and the judgment for plaintiffs is irregular, erroneous, and void. It is not supported by the record. Alexander, for plaintiff in error. The claim filed does not say it was a partnership claim, but that the lumber was furnished by Church alone, and does not set out the liability of the directors of the Poor or their property in the docket. The amendment was not allowable because it introduced new parties. 3 Whart. 423 ; 4 Whart. 345 ; 2 Troub. $ Haly 293, 425. The claim as made differs from the writ, and therefore not evidence. 3 Stark. Ev. 1531 ; 2 Penn. Rep. 301. Reed, contra. The plea of nul tiel record was a nullity ; the claim filed is not a record, it is a mere notice and only requires the same precision. The amendment was clearly proper, for a surviving partner claims exclusively in his own right. But there was no variance. 1 Chit. PI. 15; 1 East 497; 1 Whart. 586; 8 Serg. 4* Rawle 124; 6 Serg. fy Rawle 44. PER CURIAM. The registry of a mechanic's lien is no more a record than the registry of a mortgage is a record ; and the plea of nul tiel record was consequently a nullity. A judgment over- ruling it, therefore, could not, for that cause, be erroneous. Had there been a variance between the registry and the scire facias, the defendant might, perhaps, have demurred for it, but there was in truth no variance. It was necessary to have living parties on the record, and when Davis died it was proper to bring in his ad- ministrator. The amendment of the docket entry might, if ne- cessary, be sustained as an amendment at the common law which is not a subject of error ; but there was in truth no substantial variance which required amendment. On the death of Crist, the claim, with its remedy, survived to his partner Church, who might register it and sue for it in his own name. Indeed he could not do otherwise, for the action of a surviving partner is his own, and a count for what was at first a partnership demand, may be joined with another for the surviving partner's separate cause of action. Any discrepance in this respect, therefore, was immate rial : and it is difficult to see why the paper did not create a lien, or why it ought not to have been given in evidence. Judgment affirmed. May 1841.} OF PENNSYLVANIA. 243 Addams against Seitzinger. Ah endorsement on a note, of a payment on account, in the handwriting of the holder, proved to have been made within six years from the date of the note and time of suit brought, is evidence which will prevent the operation of the statute of limitations. ERROR to the Common Pleas of Berks county. Peter Addams and Elijah Deckert, administrators of John Addams, deceased, against Jacob W. Seitzinger. This was an action of assumpsit on a note, to which the defend- ant pleaded non assumpsit infra sex annos. The plaintiff gave in evidence the following note : " On demand I promise to pay John Addams or order, six hun- dred dollars, without defalcation, for value received. Reading, Sept. 4, 1827. JACOB W. SEITZINGER." And proved that said John Addams died in November 1832. That the following endorsements or entries on the back of said promissory note, are in the handwriting of said John Addams; " Interest paid up, February 17th, 1829, JNO. ADDAMS." " Received three hundred and fifty dollars on the within note at different times, January 31st, 1829. JNO. ADDAMS." The plaintiffs then offered to read the said entries or endorse- ments in evidence, to take the case out of the statute of limita- tions ; defendant objected to the evidence ; the court sustained the objection, and overruled the testimony ; to which decision of the court the plaintiffs excepted. Error assigned : The court erred in rejecting the entries or endorsements on the back of the note, and in deciding that the same did not take the case out of the statute of limitations. Strong, for plaintiff in error, argued that inasmuch as the en- dorsements were made with in six years, the plaintiffs' intestate could have had no motive to make them other than in accordance with a corresponding payment. He died within the six years, which furnishes conclusive proof as to the honesty of the en- dorsements. Besides, such endorsements are legal evidence. 244 SUPREME COURT [Harrisburg [Addams v. Seitzinger.] 14 Pick. 387 ; Doug. 651 ; 17 Johns. 182 ; 1 Law Lib. 99 ; 2 Stark. Ev. 597. Smith, for defendant in error. The note is payable on demand ; the endorsements therefore would furnish proof by the mere act of the plaintiff that demand was made, and entitle him to interest. This might furnish a motive inconsistent with the truth of the case. A party can not make evidence for himself. 2 Hen. Black. 340; 2 Vent. 151 ; 2 Watts 215; 1 Root 187, 239 ; 4 Pick. 110. The opinion of the Court was delivered by GIBSON, C. J. Endorsements or memorandums of payments, as acknowledgment of debt to avoid the consequences of lapse of time, were never much encouraged by the English judges ; and they have been finally prohibited, as regards the statute of limita- tions, by the 9 G. 4. c. 14, though they may still be used in the English courts, to rebut the presumption of payment which ordi- narily arises from the lapse of twenty years. Yet the objection usually made to their competency, that they enable a party to make evidence for himself, is more specious than solid. If the statute had closed upon the right, or the foundation of the pre- sumption were complete when the memorandum was made, an objection to it would be unanswerable; but it is impossible to conceive of a motive for fabricating such a memorandum while the right of action remained unimpaired. To suppose that a cre- ditor would set about the commission of what is at least a moral forgery, to obviate the anticipated consequences of his own appre- hended supineness, when he might, by bringing immediate suit, prevent the occurrence of those consequences altogether, is absurd. The legal presumption is in favour of innocence where there is no violent probability of guilt. But the rule, guarded as it was in England, and as it still is here, allows not such a memorandum to fo to the jury, unless it appear to have been made when the cre- itor had no motive to give a false credit, but when, on the con- trary, he had the all-prevailing inducement of interest to avoid the appearance of it ; that is, when the period necessary to give effect to the statute or to raise a presumption of payment had not elapsed, and consequently when to give a false credit would have been to throw so much away. With this qualification, such evi- dence cannot operate injuriously; for it is not to be supposed that a creditor could so far mistake his interest, as to sacrifice a part of his debt to save the residue, when no part of it was in danger. It is possible that a weak man might do so ; but it is inconsistent with the ordinary course of human action. The rule is not only essentially a good one, but it is no more than an extension of the principle which allows entries or memorandums, which were pre- judicial to the interest of the writer where his testimony cannot May 1841.J OF PENNSYLVANIA. 245 [Addams v. Seitzinger.] be had, to be evidence of a fact in a controversy between stran- gers; thus substituting for the sanction of a judicial oath, the more powerful sanction of a sacrifice of self-interest. In the case before us, it is certain that the credits were endorsed before the statute had run its course. The note was drawn in 1827; and the en- dorsements, both in the handwriting of the creditor, who died in 1832, are dated in 1829; so that the period required by the sta- tute had not run round even at his death. Such was the case which was offered to be proved ; and the evidence of it ought to have been received. Judgment reversed, and a venire de novo awarded. Hiester against Laird. It is error to permit a witness to testify respecting a fact of which he has not the means of knowledge. In ejectment the declarations of a deceased occupant of land, respecting the title, made against his interest, have always been received in evidence. If a purchaser of land, either at sheriff's or treasurer's sale, take possession of a wrong tract, under a mistaken impression as to its location and identity, this will not preclude him, when he discovers his mistake, from asserting his right to that which he did purchase. In the trial of a civil suit, the jury must determine facts upon the weight of evidence; and a direction from the court that they must be "conclusively con- vinced," or that " there must be no doubt resting on their minds" as to any par- ticular point, is erroneous. ERROR to the Common Pleas of Schuylkill county. This was an ejectment by Isaac Hiester against Samuel Laird to recover 407 acres and 157 perches of land in Rush township. The facts of this case and the points raised, are so clearly stat- ed in the opinion of the court, that they need not be repeated. The cause was argued by i Hoffman and Greenough, for plaintiff in error. Bannan, for defendant in error. The opinion of the Court was delivered by ROGERS, J. This is an ejectment for a tract of 407 acres 157 perches, situated in Rush township, Schuylkill county. The plain- tiff gave in evidence a warrant, dated 28th of January 1793, in the name of John Kunckel, for 400 acres. A survey, in pursu- i. y* 246 SUPREME COURT [Harrisburg [Hiester v. Laird.] ance thereof, by George Palmer, D. S., of 407 acres, and allow- ance, made 21st of May 1794. A patent to John Kunckel on the 12th of September 1796. The triennial assessment of Rush town- ship for the year 1820, Kunckel, John, 400 acres, Ptd. L. 0.05, $20; tax 0.08. Also, the transcript for 1821, Kunckel, John, 400, P. 0.05, $20; tax, 0.08. Also, record of taxes, 1820, John Kunckel, tax 0.08; 1821, John Kunckel, tax 0.08. In 1821, the collector credited for this tax, returned by him unpaid. The plaintiff then proved, by the clerk of the commissioners, that cer- tain books were the records of the assessments of Rush township ; that they contain the unseated as well as the seated lands ; that it was the custom sometimes to bring in the unseated and seated lands, all intermixed ; that they generally brought in the unseated lands under the head of " non-residents," but not in every in- stance ; that he finds no separate list of unseated lands in the years 1820, 1821, in Rush township on those assessments. Wher- ever they had a separate reading, called " non-residents," it was on the same list with the assessments ; has no recollection of any separate list while he was clerk of the commissioners. The tract in the warrantee name of John Kunckel, was not seated in 1820 or 1821. It is now seated. If one man owned four, six, or ten tracts, and lived on them, they would be called seated lands. He instances the case of the Benjamin R. Morgan lands, which lie all in one body, and some of the tracts are unseated. The plaintiff also produced the book of sales, in which is the following entry : 1822, June llth, 400 acres, John Kunckel, 0.90, commissioners, $3.37^. The plaintiff then gave in evidence a deed, dated 6th of July 1822, Jacob Huntzinger, treasurer of Schuylkill county, to Messrs Reifschneider, Pott, and Seltzer, commissioners, consideration 83.37 -, the taxes and costs for a tract of land, surveyed to owned by John Kunckel, &c. The plaintiff then gave in evi- dence a book, which the clerk proved to be a record found in the commissioners' office, a record kept by the commissioners, of un- seated land bought by them. In that is this entry : taxes, &c., 0.90: taxes in 1823, 1824, 1825, 1826, 1827, $1.12, 85.60 sold to George Grim and Peter Zehner. A deed, dated 8th of December 1827, from Henry Shoemaker, Ludwig Bergen, and John Motz, commissioners of Schuylkill county, to George Grim and t*eter Zehner, consideration, $14.50, for a tract of unseated land in Rush township, Schuylkill county, containing 400 acres, be the same more or less. It being the same tract of land, which having been rated and assessed, with divers county and road taxes, which re- mained unpaid, was by Jacob Huntzinger, treasurer, &c., by deed, bearing date 6th of July 1822, as the property of John Kunckel, granted to the commissioners of Schuylkill county, &c. He then gave in evidence a deed, George Grim and wife to Charles Frai- ley, consideration, 8400 for the moiety or equal half-part, describ- May 1841.] OF PENNSYLVANIA. 247 [Hiesler v. Laird.] ing the tracts, as in the patent 407 acres and 157 perches and allowance. Deed, dated 12th of February 1830, Peter Zehner and wife, to Daniel J. Hiester, John Shoener, Jr., Benjamin Nehf and William Clark for the other moiety. By several mesne con- veyances, which were given in evidence, it is proved that the title to the whole tract is vested in the plaintiff, Isaac Hiester. The principal matter of defence is as to the identity of the tract of land. The defendant denied that the property assessed and sold, was the tract in controversy ; he alleged that the de- scription applies as well, if not better, to another tract of land, which belonged to John Kunckel, situated in the same township, and county ; that the description, when applied to the various pro- perties held or owned in that township by the same individual, was so uncertain, that the assessment and sale are void ; and that in truth the purchaser, supposing the description applied to another tract, elected to take that tract under the purchase. To this point, the evidence of the defendant was directed ; the admission of which forms the subject of complaint. That the description in the deed tallies with the tract in controversy, in several import- ant particulars, must be conceded ; and that in the absence of any countervailing proof, it would be reasonably descriptive, can not admit of doubt. In short, the plaintiff made out such a prima facie case, as would, if not rebutted, have entitled him to a verdict. He proved that a warrant was granted to John Kunc- kel, for 400 acres of land ; that a survey was made and returned upon it ; and that a patent was issued for it. That in the trien- nial assessment for that township in which the land is situated, a patented tract for 400 acres is assessed in the name of John Kunckel, for the years 1820 and 1821. That the taxes being un- paid, it was sold for the payment of taxes for those years, and purchased by the commissioners of the county, who afterwards sold the same to Grim and Zehner, by whom it was sold and con- veyed, and subsequently became vested in the plaintiff by several mesne conveyances, all of which are in evidence. In opposition to this case, the defendant also gave in evidence the patent to John Kunckel, for 407 acres and 157 perches ; the will of Kunc- kel, and a deed from Sarah W. Tyson and Philip C. Kunckel to Samuel Laird, the defendant. He also gave in evidence divers applications and warrants for land, in Rush township, in the name of John Kunckel and others, and particularly a warrant to Martin Deal, 400 acres, dated the 23d of April 1792, and a sur- vey, 24th of April 1793, by George Palmer, D. S., at the head of Quacake for 406| acres. This tract is situated partly in Rush township, Schuylkill county, and partly in Northampton county ; 50 acres of it are in the latter county. The defendant contends that this is the tract assessed. And, for this purpose, he offers the proof contained in the first bill ; this was admitted in part by 246 SUPREME COURT [Harrisburg [Hiester v. Laird.] the court, but it is unnecessary to determine whether in this there was error, as it would seem to me the defendant altogether failed in giving the proof offered. He then (after having proved, as a preliminary, the list of road taxes for Rush township, in which this entry is made: 1820, John Kunckel, 10 cents ; John Braus and Peter Zehner, supervisors, Nov. 9th, 1820, sold 1821 ; John Kunc- kel, 10 cents, ent. Sept. 12th, 1822; and that there was no return for those years, except what is entered in this book,) called John Braus, who was one of the supervisors ; and, after proving by him, that they, the supervisors, had the county duplicate before them when they laid the road-tax, proposed to ask the witness, to what land the road-tax, assessed in the name of John Kunckel, in 1820 and 1821, applied. The admission of this evidence is the subject of the second bill. The fifth section of the Act of 1802, makes it the duty of the supervisor to call to his assistance the township assessor, and they together make the assessment from the last valuation of property in the township. In the performance of that duty, the supervisors had the county duplicate before them ; but it nowhere appears that they ever saw the land, or that they had any other means of knowledge as to the identity of the tract assessed than any other individual would have had who had the inspection of the assessment, or of the county duplicate. The evidence, therefore, amounts to nothing more nor less than an opinion as to what tract the road-tax for those years referred, without, as I can understand, any peculiar means of knowledge on the part of the witness. The evidence on this point was erro- neously received. After the admission of the testimony, the wit- ness proceeded to say, we know nothing of Kunckel's lands, ex- cept the one at Quacake, which we call the Quacake Spring, in Rush township, a little below the spring, in the valley where Martin Deal lived. This is not the place referred to (meaning the place in controversy) where Martin Deal lived when I knew him. They also proved by a witness that he was at Martin Deal's all night, above forty years ago. He lived in Quacake valley, pretty near the upper end of the valley. The defendant then offered to prove the declarations of Martin Deal at that time, in regard to who owned the land on which he lived. This testi- mony was admitted; whereupon, the witness proved that, on being asked why he removed into that wild country, he said Kunckel put him up there. The land belonged to him (Kunckel) and he should move up, and try to improve the land, and he would supply him with provisions until he could raise enough for himself. If Kunckel was the owner of the tract, which it was the object of the testimony to show, it was susceptible of better proof than the declarations of the person residing on the land, and the evi- dence would seem to run counter to the rule which requires the May 1841.] OF PENNSYLVANIA. 249 [Hieeter v. Laird.] best evidence the nature of the case admits. But still, we have nothing to do with the weight of the evidence, for as a declara- tion of a deceased occupier, against his interest, such evidence has always been received. In ejectment, declarations of a per- son under whom the defendant claimed that he held only as te- nant at sufferance, to the plaintiff, were allowed to be given in evi- dence by the plaintiff. Andrews v. Fleming's Lessee, (2 Doll, 93.) So confessions of the person under whom one of the parties claimed, made during the time when he owned the land, that his warrant and survey did not cover' the land in dispute, are evidence. Weidman v. Kohr, (4 Serg. < Rowle 174.) In Jackson v. Bard, the declarations of a person in the possession of land as to his title, were ruled to be admissible evidence against him, and all persons claiming under him. To prove seisin in a devisor, the declara- tions of a deceased occupier of the land in question, that he held as his tenant, were received as evidence of that fact. Hollo- way v. Rakes, cited by Buller J. in Dames v. Pierce, (2 T. R. 55) Uncle v. Watson, (4 Taunt. 16.) Without such evidence, it might have been impossible to prove an occupation by the de- ceased tenant under a particular person, though the simple fact of his occupation must have been capable of other proof; and in addition to the circumstance of his having a peculiar knowledge of the fact, it may be observed that the declaration was, in some degree, against his interest, since, in case of an action by his land- lord, it might have been produced as evidence against him, or against any one claiming under him. For the same reason, when the point was whether certain lands were parcel of A or B's estate, the declarations of a deceased occupier who held under A and B have been admitted in evidence. (P cake's Ev. 182) ; and in the note, Jackson v. Bard, (4 Johns. 233). As the declara- tions of Deal, who was the occupier of land, were against his own interest, and as they might have been given in evidence in a suit brought against him by Kunckle, and against all others claim- ing under him, they were admissible in evidence. It appears that Grim and Zehner, who purchased from the commissioners, claimed the tract in the Quacake valley, on which Deal resided, as the commissioners' land. Under this impression this land was conveyed to Hiester, but afterwards Hiester having discovered, as he supposed, that they had conveyed him the wrong tract, they executed a deed for the land now in controversy. The defendant contends that this was such an election as concludes them, but we do not think so ; for if a purchaser either at a she- riff's or treasurer's sale, take possession of the wrong tract, under a mistaken impression, this will not preclude him, when he disco- vers his mistake, from asserting his right to the land which he has really purchased. The question to be decided will be, not- withstanding, whether the land which was assessed was the iden- i. 32 250 SUPREME COURT [Harrisburg [Hiester v. Laird.] tical tract in controversy, with, however, the benefit of the argu- gument to be derived from their opinion as to its location and de- scription. The plaintiff complains of that part of the charge in which the court say, " Does the evidence conclusively satisfy your minds that the tract sold in the name of John Kunckel, of 400 acres, ex- pressly applies to this tract of 407 acres 156 perches, to the exclu- sion of any other 400 acre tract in the same name, in the same township. Unless it does, the plaintiff has no right to recover." And again, " Unless the jury are clearly and conclusively con- vinced, their verdict ought to be in favour of the defendant." When it is remembered that the tract sold was assessed as a pa- tented tract, that the land in controversy is the only patented tract in Rush township, in the name of John Kunckel, and that it consists of the same, or nearly the same number of acres, we think the charge is not so favourable as the plaintiff had reason to expect. But what does the_court mean by saying that it is ne- cessary to a recovery that the minds of the jury should be conclu- sively satisfied, that they should be conclusively convinced, that it applies expressly to this tract, and no other, in the township ? If they mean to lay it down as a rule of law, (and the words admit of that construction only,) that there must be no doubt resting on their minds, we think they were mistaken. In a civil case, the jury determine facts, on the weight of evidence, and there is cer- tainly nothing peculiar in the case which forms an exception to the general rule. The question is, was the land in controversy the identical tract assessed. Of this the plaintiff had given prima facie evidence, by an identification of the tract with reasonable certainty. To rebut this, other testimony was adduced, which the defendant contends throws doubt upon it. Without intend- ing to say whether this be so or not, we are of opinion that the jury should have been instructed to weigh the testimony, and to determine that point as in ordinary cases. Judgment reversed, and a venire de now awarded. May 1841.] OF PENNSYLVANIA. 261 Porter against Boone. A levy, upon an execution, of personal property to an amount sufficient to pay the judgment upon which it issued, is a satisfaction of the debt, if the levy he released by the plaintiff, and becomes lost to the defendant; but if the release by the plaintiff be at the instance and request of the defendant, it does not amount to satisfaction. ERROR to the Common Pleas of Clearfield county. Hopkins Boone for the use of George W. Toland and William Magoffin against William Porter. Scire facias quare executio non. This cause was argued by Wallace and J. Fisher, for plaintiff in error. Smith and Blanchard, contra, whom the Court declined to hear. HUSTON, J. On the 16th of March 1835, by virtue of a power of attorney a judgment was entered in Clearfield county, Hop- kins Boone against William Porter. Real debt $406.36. Interest from 6th of March 1835. Hopkins Boone being indebted to G. W. Toland and William Magoffin, on the 27th of August 1835 assigned to said Toland and Magoffin a part of this judgment, viz., $343.95, and on the 2d of October 1835, written notice of this assignment was given to William Porter, the defendant. Early in January 1836, a fieri facias was taken out on this judgment, and " levied on all the interest of Porter in about 65,000 feet of boards at the mill ; his interest in about 23,000 feet of plank, and about 3,000 staves, and about 3,000 shingles ; his interest in two arks at the creek, and his interest in 150 acres of land bought from the heirs of John Ashley his interest being one-fourth." The partners in the mill and lumber were, Hop- kins Boone, John Long, Maxwell Long and William Porter. The defendant Porter and Maxwell Long gave in the levy. It being well understood that to sell a large quantity of lumber for cash, in January, in Clearfield county, would be a great sacri- fice, Porter applied to J. W. Smith, Esq., the attorney of Toland and Magoffin, to suspend the levy and permit him to run the lum- ber at the spring flood to a market down the river. Boone, who still owned part of the judgment, consented, or joined in this re- quest, and it was granted. 252 SUPREME COURT [Harrisburg [Porter v. Boonc.J At the time for rafting, the stuff was prepared, and the rafts con- structed. Porter was present and assisting. Boone was to go on one raft, and one or both the Longs on another or others. The four partners in this lumbering business were known as Boone Pul 294; 3 Monroe 93; 2 Dess. 261 ; 1 Hill's Ch. Rep. 324, 332; 1 Verger 413. The opinion of the Court was delivered by KENNEDY, J. That Christopher B. Baldwin had a right to make the money received and retained by him, after paying Mrs Piper her proportion of it, his own, is admitted, and at any rate could not well be contested. But it is argued on behalf of the plaintiffs, that he must be regarded as having received the money in the character of a trustee, or as administrator of the estate of George Whitehill, and not by virtue of any marital right vested in him at the time. And therefore his receipt of the money can- not be considered such a reduction of it into his possession as 256 SUPREME COURT [Harrisburg [Ellis v. Baldwin.] would deprive his wife of her right to it in case she survived him. That the money cannot be looked upon as having been received by him otherwise ; because he had no power or right to demand and receive it in any other right than that of administrator. If his wife had been sole at the time, she could not have demanded or received it until after it had come first into his hands as ad- ministrator. Then, but not before, she could have asserted her right to it, and compelled the payment of it by him, upon giving the requisite security to refund whatever of it might thereafter be wanting to pay debts of the testator. But his being invested with the right of his wife as her husband, as well as that of ad- ministrator, made no difference ; for it is a rule, that if two dis- tinct rights or capacities exist in the same person, they shall be considered the same as if they existed in two different persons ; and if he performs an act, which it is only competent for him to do, acting in one of those two capacities, without signifying or declaring in which it is that he does the act, it shall be referred to that which will make it lawful, and render it effectual. This reasoning, so far as regards the mere receipt of the money by Christopher B. Baldwin, may be all correct enough. And had he retained it in his possession, without using it, until his death ; or had he put it out on interest expressly for the use of his wife, I would not say but her right to receive the money in such case would have survived. Baker v. Hall, (12 Fez. 497.) ; but see also, Wildman v. Wildman, (9 Fez. 174), where his Honour, the Master of the Rolls, took a distinction between a transfer of stock and the payment of money, saying, " That the interest of stock was, properly, nothing but a right to receive a perpetual annuity, sub- ject to redemption ; a mere right, therefore, and the circumstance that the government was the debtor, made no difference ; a mere demand of dividends as they became due, having no resemblance to a chattel moveable or coined money, capable of possession and manual apprehension." But the money was not retained by the husband in the present case, nor put out by him to interest for the use of his wife ; nor anything of the sort done by him, from which it is possible to infer that he did not intend to bar her thereafter from asserting her right to it by survivorship. On the contrary, he appropriated the whole of the money to his own use; and, in truth, used and treated it as his own in every respect. Thus he clearly reduced it into his possession, and made it his own absolutely to all intents and purposes. It was impossible for him to have done more than he did to effect this end. The wife, therefore, after her husband had so converted the money to his own purposes, could have no possible claim, in future, to it founded upon a right by survivorship. Judgment affirmed. .May 1841.] OF PENNSYLVANIA. 257 Okison against Flickinger. The parties to an action pending in court, by a writing under their hands and seals, agreed to refer it to three referees, and bound themselves in the penalty of one hundred dollars to abide by the award ; the referees heard the parties, and two of them made an award tor the plaintiff, upon which the court entered judgment. Held, that the award could not be supported under the Act of 1806, the reference not having been made a rule of court ; nor under the Act of 1836, having been made but by two of the referees. ERROR to the Common Pleas of Huntingdon county. William Okison and John Flickinger being the parties in inte- rest in two suits pending in court, entered into the following agreement : Robert Barr ) v. > In the Common Pleas of Huntingdon county. John Campbell. 3 & William Okison ^ " We, the undersigned, parties to the within Vt [suits, this day agree to refer the within suits i K pr f j to Judge Junkins, Major John Zimmerman, of mger.j Perry county> and Michael Bushy, of Juniata county, to meet at the house of Nicholas Ickes, in Ickesburg, Perry county, on the 17th day of August next. And we agree and bind ourselves in the sum of one hundred dollars, lawful money of Pennsylvania, to agree to whatever award the above referees report, and to be final for ever. In testimony whereof, we set our hands and seals this llth June 1838. rr. f " WILLIAM OKISON. [SEAL.] " JOHN FLICKINGER. [SEAL.] " James Hughes." Two of the referees made the following report : Robert Elliott having been substituted for John Junkins by consent of the parties : " Now, March 1st 1839, arbitrators being met agreeably to ad- journment, viz : Robert Elliott, John Zimmerman, and Michael Bushy, and having deliberately considered the proofs and obliga- tions of the parties in the case of William Okison ?;. John Flick- inger, named in the foregoing rule, and also in a suit styled Ro- bert Barr v. John Campbell, stated by the parties in interest to be entered in the Court of Common Pleas of Huntingdon county, and submitted to as shown by an article of agreement signed by them, and attached to this rule; in the first-named suit, viz: Okison v. Flickinger, we award for the plaintiff the sum of eighteen dol- lars ; and in that of Barr v. Campbell, we award for the plaintiff i. 33 w * 258 SUPREME COURT [Harrisburg [Okison v. Flickinger.] the sum of seventy-five dollars, each party to pay one half the costs. Given under our hands, the day and year above written. " ROBERT ELLIOTT, "JoHN ZIMMERMAN." Rule of reference and agreement and award filed the 6th March 1839. 9th April 1839, read and confirmed nisi by court. The plaintiff, by his attorney, filed the following exceptions to the within award on the 15th January 1840. 1. The submission is to the referees, and the award is only by two of them : therefore, the award is not made according to the submission. The court below was of opinion that the exceptions were not filed in time, and therefore dismissed them. Blanchard, for plaintiff in error, cited 6 Serg. fy Rawle 145; 4 Watts 75; 9 Watts 472; 1 Bac. M. 211, Tit. Award. Bell, for defendant in error, cited 4 Rawle 299. The opinion of the Court was delivered by SERGEANT, J. Could the award in this case be supported under the Act of 1806, or the Act of 1836, it would be the duty of the court to confirm it, and they would give the Act an enlarged in- terpretation to effect the object. But it cannot be brought within the purview of the Act of 1806, because that act requires that the parties shall agree that their submission be made a rule of court ; which is not done here, but, on the contrary, the parties bind themselves under a penalty to abide by the award, which rather leads to a contrary inference. The authority to make the refer- ence a rule of court should appear either expressly or by plain implication. Then, although the submission might be good according to the usual practice, under the old Act of 1705, (which the Act of 1836 has re-enacted) yet the award is bad, being made by only two of the arbitrators, when the reference was to three. It, there- fore, falls within the principle decided in Welty \. Zentmyer, (4 Watts 75.) Judgment on the award reversed, and case remitted for fur- ther proceedings. May 1841.] OF PENNSYLVANIA. Strein against Zeigler. Upon an indictment for forcible entry, and an acquittal of the defendants without any finding by the jury on the subject of costs, an action will not lie by a witness on behalf of the commonwealth, to recover his costs from the prose- cutor who subpoenaed him. ERROR to the Common Pleas of Lancaster county. Michael Strein against George Zeigler's executors. This was an appeal from the judgment of a justice of the peace ; and the following case stated, was agreed on by the parties concerned. George Zeigler, the testator of the defendants, made complaint before Thomas Lloyd, Esq., a justice of the peace of Lancaster county, for a forcible entry and detainer against a certain John Wilson, Jr. and Reuben Mullison ; upon which such proceedings were had by the justice, that the defendants, Wilson and Mulli- son, were bound to appear before the next Court of Quarter Ses- sions of the Peace, to be held at Lancaster on the 3d Monday of August 1834, to answer the said complaint. A bill of indictment, founded on said complaint, was preferred, and found " a true bill ;" and the said George Zeigler having been endorsed as prose- cutor upon the said bill, by order of the court, the defendants severally pleaded " not guilty," and were acquitted. The plain- tiff, Michael Strein, was a witness subpoenaed by the said George, upon his behalf, in the prosecution above mentioned, against Wil- son and Mullison, as well at the hearing before Thomas Lloyd, Esq., as before the Court of Quarter Sessions, whenever the case was for trial ; having been bound over from time to time to testify ; having also been at each time subpoenaed by George Zeigler, as a witness on his behalf, in the prosecution aforesaid, and attended in obedience to the subpoena that was served upon him, and recognizance aforesaid. The said Michael Strein attended as a witness on behalf of the said George Zeigler, at the hearing before the said Thomas Lloyd, Esq., one day ; at the August Sessions, 1834, five days; at the November Sessions, 1834, three days; and at the January Sessions, 1835, four days. For this attendance, and the mileage allowed according to law, there is due to him the sum of $11.35. If, upon the foregoing statement of facts, the court shall be of opinion that the plaintiff is entitled by law to recover, then judgment in his favour for 811.35, with interest from the 23d of January 1835, and costs of suit, to be entered against the defendants, de bonis lestatoris ; but if the court shall be of a contrary opinion, then judgment to be entered in their favour. 260 SUPREME COURT [Hamsburg [Strein v. Zeigler.] This cause was argued, and the opinion of the court (Champ- neys, President) delivered on the 31st of December 1839, and judgment directed to be entered for the defendants. Montgomery submitted the cause without argument, saying that his examination of the case had led him to the belief that the opinion of the court below was right. Frazer, for defendant in error, was not heard. PER CURIAM. As the statute of Gloucester gave costs only in civil cases, and as an indictment, though prosecuted by an indi- vidual, is the suit of the crown, a prosecutor neither pays nor receives costs by that statute/or the common law. In England, the 25 G. 2. authorizes the courts to order him his costs out of the county treasury, on a conviction of felony ; and the 18 G. 3. gives the same authority in cases of acquittal ; but neither of these statutes has been in force here. We have indeed had very little legislation on the subject. The statutes of 1791 and 1797 changed the odious common law principle which left the accused to pay the costs, whether convicted or acquitted ; but neither of them provided for the expenses of a private prosecutor. The Act of 1804 alone empowered the grand or petit jury to im- pose on him the costs of an unfounded prosecution ; but in this instance the power was not exercised. If, then, an indictment of forcible entry is not a civil suit, this action does not lie. The motive for resorting to it is, with few exceptions, to redress a civil injury, and as the fine was mostly nominal, it was at one time not unusual for the attorney general or his deputies to appear for the accused; but this was by sufferance, and in cases where the force was unattended with outrage. Whether the practice continues still, we know not; perhaps it was not at any time strictly proper. But the indictment was, in all beside, attended with the incidents of a criminal prosecution. The attorney gene- ral, and the other officers, had the same fees, a fine was set upon conviction, the defendant was sentenced to pay the costs of pro- secution, and stood committed till the sentence was complied with. The Act of 1700 directs the offence to be punished as a breach of the peace, and satisfaction to be made to the party in- jured; and the Act of 1810 undertook to settle, what had not been doubted, that jurisdiction lay with the Quarter Sessions. Besides this, we have all the British statutes on the subject, ex- cept the 5 R. Stat. 1., which our Act of 1810 was intended to sup- ply ; and there is therefore no colour to subject a prosecutor to payment of costs to the commonwealth's witnesses. Judgment affirmed. May 1841.] OF PENNSYLVANIA. 261 Commonwealth against Laub. A variance between a statutory bond and the requisitions of 'the law, is fatal only when the condition would impose a greater burden on the obligor than the law allows. Where a statute requires the approval of an official bond by the judges of the Court of Quarter Sessions, it is enough to give it authenticity, that it was done actually by the persons designated in the statute, although styling themselves judges of the Court of Common Pleas. ERROR to the Common Pleas of Adams county. The Commonwealth against William Laub, James Bell, Jr., David M'Creary, John L. Fuller, John Gilbert, John B. M'Pher- son, and Daniel M. Smyser. The declaration was in common form in debt upon the bond hereafter mentioned, dated the 9th day of January 1834 ; defend- ants pleaded nil debent, payment, and non est factum, on which issues were joined. The plaintiff gave in evidence the appoint- ment of William Laub, as treasurer of Adams county, and his bonds to the county, n was not done rn any court whatever; and being essentially referrible to the function of no jurisdiction in particular, it is enough to give it authenticity that it was done actually by the- persons designated in the statute, by whatever title. By the con- stitution, the judges of the Common Pleas are judges also of Oyer and Terminer, Quarter Sessions, and Orphans' Court ; and they sit by virtue of one commission, in which they are styled judges of the Common Pleas. Does it not sufficiently appear, then, that this bond was approved by judges of the Quarter Sessions, styling themselves as they are styled in their commissions and in the con- stitution ? In Kean v. Franklin, (5 Serg. 4* Rawle 154) an action was brought on a recognizance to John Joseph Henry, president of the Orphans' Court ; and it was objected that as there was no officer thus styled by the constitution or the laws, the title should have been rejected, and the action brought in the name of judge Hen- ry's personal representative ; but inasmuch as an Act to alter the judiciary system then in force had said, " the judges of the Com- mon Pleas, or any two of them, the president being one, shall com- pose and hold the Orphans' Court," it was determined that the president of the Common Pleas was ex-officio president of the Orphans' Court, and that the recognizance was taken to the offi- cer and not to the man. Is not a judge of the Common Pleas, by the terms of the constitution, ex officio a judge of the Quar- ter Sessions ? The recognizance might, in that case, have been taken to the officer indifferently by the one designation or the other ; and the judges might in this have styled themselves either as of the Quarter Sessions or the Common Pleas. Nor is the objection that the bond does not appear to have been taken by the recorder of deeds, better founded. I have no par- ticular recollection of the argument in Dunn v. The Commonwealth; but the reasons of my late brother Duncan for holding even the office copy of such a bond inadmissible as statutory evidence, seem to be inconclusive. The object of the statute was public convenience in having the bond registered in the particular county before it should be deposited in the office of the auditor general ; and, to accomplish this, the recorder of deeds was directed to take it and record it in short, to attend to the execution and registry of it. That being done, it would matter but little whether it ap- peared to have been taken by the recorder or not, especially as its validity, unlike that of a recognizance, does not necessarily require any magisterial sanction. Perhaps too much stress was laid on a particular word; but we wish not to draw the authority of that case into question. The objection went to the competency of the office copy, and not of the original, for that was conceded. It was conceded also that the original might have been established by common law proof of its execution ; and what is the case here ? We find it to have been explicitly agreed at the trial, that the copy certified by the auditor general should be considered as the origi- May 1841.] OF PENNSYLVANIA. 265 [Commonwealth v. Laub.] nal offered with proof of execution by the subscribing witnesses. On the very principle of Dunn v. The Commonwealth, then, it ought to have been received with the certified copies of the defendant's accounts, which were rejected only because of the supposed in- competency of the bond as a ground for their admittance. Judgment reversed, and a venire de novo awarded. Libhart against Wood. Faithful service is a condition precedent to the right of a servant to his wages ; and if, during the term for which he has agreed to serve, he commit a criminal offence, although not immediately injurious to the person or property of his master, he will not be entitled to recover any part of his wages. ERROR to the Common Pleas of Dauphin county. Charles A. Wood for use against Jacob Libhart. This was an action of assumpsit by the plaintiff, who was a servant on board a packet-boat on the canal, commanded by the defendant, to reco- ver his wages for seven months' service. Upon the plea of pay- ment, the defence was, that during the period for which the plaintiff was employed, he committed a larceny of a passenger's trunk on board of the boat, for which he was arrested and con- victed. The proof was as follows : It is admitted, after the assignment, Wood was convicted of larceny (in this court), on a boat commanded by the defendant. Captain Libhart, and was arrested on the 4th of November, 1839 : he was employed on the packet-boat, John Marshall ; Wood requested me to write to Mr Fisher, at Lebanon. It is admitted by the defendant's counsel, that Charles Wood was in the employ, and laboured for the defendant from 26th of March 1839, to November 4th, 1839, on board the packet-boat, John Marshall, where the larceny was committed by the said Wood, of which he was convicted. John Davis, Esq. I understood from the defendant that Wood and Smith were to receive $20 per month each ; he said he had hired them on board the boat, and they were to stay out the season ; they were brought before me on the 4th of November 1839 ; I do not know when the season closed ; it was after November 1839 this transaction was had. Captain Morton. The boating season closed on the 15th; the boats were closed up and stopped about the 17th of November ; i.J-34 x SUPREME COURT [Harrisburg [Libhart v. Wood.] I continued here till the night of the 15th ; do not know whether Libhart laid up on the 15th ; do not know the time. I know nothing about this hiring; but the custom has been that, when they are hired for the season, and they do not stay it out, they deduct two dollars per month from their wages, unless they are compelled to quit by unavoidable accident. It is the duty of the outside hand to guard the boat. When we go into port, one bowsman and one steersman is up at a time ; one prin- cipal part of their duty is to guard the boat. Mr Colder was one of the proprietors of the boat : I paid my hands $20 ; the captains employ these hands pay themselves. Captain Green. I have been captain of a boat four or five years ; it has been a rule to hire hands in the spring for the entire season ; I do not know it is now ; if they left before the sea- son, I usually dock them two or three dollars ; I had previously engaged Wood in the fall ; in the spring he came to me and said he would go with defendant this was Smith ; I never heard Wood say any thing about it ; the duty of the boat hands is to take care of the baggage. Captain Voglesong. I hire my hands generally for the entire season ; if they left before the season, I have always paid what I contracted; I paid as high as $18 or $20 per month; some new hands I got for $16. James Martin. I was a hand on this boat of Libhart 's when Wood was there ; I contracted, I think, for the entire sea- son ; I made no particular bargain ; I made no bargain that if I left he should dock me ; I was docked for leaving the boat. There were six hands on the boat at Hollidaysburg ; we were all de- tained here, the four hands that belonged to the boat. I do not know how many hands he employed ; Decker and me were all of the old crew ; they were employed five days. I would not care about hiring at $1.50 per day; my wages remained on while 1 was here. Wood was a steersman to steer the boat, and reach off and take care of the baggage. The night the larceny was committed, it was Wood's business to guard the boat, and Cap- tain Libhart did not. come down with his boat that trip ; all the hands were arrested, and charged with the larceny ; Libhart's boat ran two or three trips after this ; Captain Moore brought the boat to town that night ; I have heard that the money was found in Mifflin county. The counsel for the defendant asked the court to charge the jury, as a matter of law, that the moment Wood committed the larceny, he lost all right to recover his wages in this action from the defendant ; and also that by the act his right of action is de- feated. But this instruction the court decline to give for two reasons : 1. That it does not appear that he, Wood, ever took any pro- perty that belonged to defendant. In the case cited by the coun- May 1841.] OF PENNSYLVANIA. 267 (Libhart v. Wood.] sel, it was a suit on an implied contract ; and in the case at bar, there is an express contract proved. Whatever property, what- ever special or immediate loss of goods or property the defendant has sustained, it would be right for the jury to consider. 2. But simply because Wood stole the goods or money of a passenger on board the boat, I know of no rule of law that should defeat nis right to receive what is justly due, deducting any legal off-sets the defendant may have. I can imagine no rule of morals or religion, that would justify the defendant doing a wrongful act, by retaining the just dues and wages of a labourer, because the plaintiff has commited a crime. The jury would be justified in giving a verdict for the plaintiff for what the defendant contracted to pay, deducting what he is entitled to by way of set-off under the evidence, and according to the rules of law which I have stated. The defendant's counsel excepted to the charge of the court. Adams, for plaintiff in error, argued that, inasmuch as it was the particular duty of the plaintiff to guard the boat and the bag- gage of passengers, the commission of a larceny upon that very property, was such a violation of his contract with the master, as precluded all right to recover compensation under a contract, the peculiar consideration of which was faithfulness. The prin- ciple does not rest in the amount stolen, or from whom stolen, but in the fact that property was stolen ; that the consideration of the contract failed. 19 Eng. Com. Law Rep. 346; 3 Eng. Com. Law Rep. 339 ; 25 Eng. Com. Law Rep. 257 ; Chit. Gen. Prac. 81 ; 23 Law Lib. 20 ; 2 Stark. Ev. 942; 2 Pick. 271 ; 4 Serg. # Rawle 249; 3 Paley Phil 112. J. A. Fisher, for defendant in error. The defence does not rest upon any injury done to the defendant, nor any larceny commit- ted upon his goods ; and no case shows that, under such circum- stances, the plaintiff must lose the price of his labour. The case of Heck v. Shener (4 Serg. 6f Rawle 249) seems to be conclusive of this point. The opinion of the Court was delivered by ROGERS, J. When a servant, who has engaged for a certain time at certain wages, is turned away by his master before the period for which he has engaged to serve has expired, and his dis missal be in consequence of his own misconduct, he will be enti- tled to no wages ; for his faithful service is a condition precedent to his right to wages, and that condition, in the case supposed, he has not performed. But if his dismissal be unjust, the master can not, by his wrongful discharge, prevent the servant from recover- ing a compensation for his services. Thus the law carefully pro- tects the rights of both master and servant. 19 Eng. Com. Law SUPREME COURT [Harrisburg [Libhart v. Wood.] Rep. 346 ; 3 Eng. Com. Law Rep. 339 ; 25 Eng. Cam. Law Rep. 257. In the case at bar, the hiring was for the season, at the rate of $20 per month, and although, in one sense, it may not be thought a" hiring for a certain time, yet it can not be disputed, that it falls within the reason of the principles stated. By the contract, the servant agrees to serve his master faithfully for that period of time, although the termination of it may be longer or shorter, as the weather may be more or less severe. It is an ex- press contract, but no difference is perceived between an express or implied contract ; in either case it is open to the defendant, by way of defence, to insist that the plaintiff has failed to comply with his agreement. Nor is there that want of mutuality in the contract, which (as is supposed) can interfere with the defence. Both parties are bound by it. It can not affect the case, that it is part of the agreement that the master may at any time discharge the servant, unless a corresponding right to leave his service is re- served to the servant. Nor would it, I apprehend, even then pre- vent the enforcement of a penalty for wilful misconduct : public utility requires that the rule should be strictly observed. It must be admitted, that whether the servant be dismissed by his master for good cause, or he incapacitates himself from performing his part of the contract, as was the case here, can make no manner of difference in the application of the rule. The learned judge seems to suppose that there is a distinction between a larceny committed of the goods of the employer, and a stranger. But we do not feel the force of the distinction, nor can we perceive that the defence fails because the defendant omitted to prove that he sustained direct injury from the misconduct of the plaintiff. There is good sense in the observations of Lord Tenterden, {Chit. Gen. Prac. 81.) that if a servant habitually embezzled his mas- ter's property, the amount embezzled is wholly immaterial ; and although the amount of wages sought to be recovered may exceed the amount embezzled, the servant is not entitled to anything. It may be impossible to ascertain the amount of injury a common carrier or inn-keeper may sustain from the unfaithful conduct of his servant, and therefore no direct proof of it ought to be re- quired. It is often, from its nature, not susceptible of such proof. An injury, in the case of an inn-keeper or common carrier, is in- evitable, where he is so unfortunate as to employ dishonest serv- ants ; it must affect his business or the character of his house, although it may be impossible to show the extent of the injury. It is nothing, therefore, that in this particular case, the goods stolen were restored. Indeed, here there was a direct injury to the master, as, for one trip at least, he was deprived of the ser- vices of all his hands, in consequence of the dishonesty of the plaintiff. And who can say, and particularly in the business in which the defendant was engaged, that the services of a dishonest servant are worth anything, or who would knowingly employ May 1841.] OF PENNSYLVANIA. 269 [Libhart v. Wood.] such a servant ? His services, in the apprehension of every per- son, are worse than useless. In addition, the rule which deprives them of wages for improper conduct, has this recommendation, that it operates as an incentive to a faithful discharge of duty. It is a narrow view of the question, to suppose that it is intended for the benefit of the master alone. There are other considera- tions which enter into the subject, of a still higher nature. It contributes to the security of travellers, who are compelled to intrust their property to the custody of others. The intercourse between the different sections of our extensive empire is so great, that sound policy requires that every possible protection should be extended to them ; and so far from believing that the defend- ant is offending against any principle of ethics, in retaining the wages of his unfaithful servant, in my judgment, he is discharg- ing a duty, which he alike owes to himself and the public. We do not wish to extend the principle so far, as to forfeit wages already earned, on a contract which is at an end. But when the contract is entire, (and we conceive this to be a case of that de- scription) although it may be for payment of wages monthly, he precludes himself from recovering the arrearages of his wages, when he is guilty of embezzlement or pillage, either from the mas- ter or a stranger. It may be unnecessary to add, that the same rule extends to common carriers, whether of passengers or goods, and to inn-keepers. Judgment reversed, and a venire de now awarded. Stover against Metzgar. All the negotiations between the parties to a contract made by a written cor- irespondence form a part of it, and must be considered in giving it a construc- tion. And if it appear that one of the parties was negotiating for himself as well as for others, each of whom was to perform a separate part of the contract, and this was known and understood by the other party, he cannot look to one for damages consequent upon the failure to perform the conditions of the contract by all. ERROR to the Common Pleas of York county. John Metzgar against Michael Stover. This was an action on the case, in which the plaintiff declared for money laid out and expended for the use of the defendant. On the trial of the cause, the plaintiff asked leave to file the following special count, which was objected to by the defendant, but allowed by the court, who sealed a bill of exception thereto, at the instance of the defendant : i x* 270 SUPREME COURT [Harrisburg [Stover v. Metzgar.] John Metzgar } v. York county ss. Michael Stover. ; And the plaintiff, John Metzgar, also complains of the defend- ant, Michael Stover, in a plea of trespass on the case upon pro- mises, &c. For that, whereas, heretofore, to wit, on the day and year first aforesaid, at said county, to wit, at Philadelphia, the said plaintiff was a general agent for the procuring of loads of merchandise to be conveyed in wagons and other conveyances from the said city of Philadelphia to Pittsburg and other places westward by such persons as had teams or conveyances for that purpose, and afterwards, to wit, on the day and year aforesaid, at said county, the defendant knowing the premises, in considera- tion that the plaintiff would for certain reward procure and send to him, the defendant, three loads of store goods, to Wrightsville, as soon as possible, that is, one load for Joseph King, to weigh about fifty hundred, one for Peter Gise, to weigh about from fifty to fifty-five hundred, and one for defendant to weigh about fifty and not more than fifty-two hundred, to be conveyed to Pitts- burg, the said defendant then and there undertook and promised the plaintiff that he would receive the said loads, and cause them to be conveyed to Pittsburgh aforesaid ; and the plaintiff avers that he, relying on the said promise and undertaking of the de- fendant, did procure and send to the defendant at Wrightsville three loads of store goods as aforesaid, and that afterwards, to wit, on the day and year aforesaid, at said county, the said loads did arrive at Wrightsville for the said defendant, of all which the said defendant afterwards, to wit, on the day and year aforesaid, at said county, had notice ; yet the plaintiff says that the said defendant, not regarding his said promise and undertaking, but intending to deceive and defraud the plaintiff in this behalf, did not nor would receive the said loads and cause them to be con- veyed to Pittsburg as he had undertaken aforesaid, but wholly neglected and refused to do so, and also for that whereas thereto- fore to wit, on the day and year first aforesaid at said county, to wit, at the city of Philadelphia, the said plaintiff was engaged and occupied in and about the business and employment of procuring from merchants and others loads of merchandise in boxes, bales and parcels, to be conveyed by teamsters in wagons or carriages from such point as they might desire the same to be delivered at, to such other place in the route of the destination of said loads as the said teamsters might agree to haul the same to ; the said plain- tiff in the premises undertaking that the said load should be re- ceived, hauled and delivered safely and expeditiously within a limited time, and therein relying on the undertaking of the team- sters who might order the loads, to receive, haul and deliver the same in the manner aforesaid; and the defendant on the said day May 1841.] OF PENNSYLVANIA. 271 [Stover v. Metzgar.] and year, at said county, knowing the premises, in consideration that the plaintiff would, at his request, for certain reward, send him three other loads of store goods to Wrightsville. as soon as possible, one for Joseph King, to weigh about fifty hundred, one for Peter Gise to weigh from fifty to fifty-five hundred, and one for himself of about fifty and not more than fifty-two hundred, the loads to be kept separate, and not to be sent if wages were under three dollars, and to be for Pittsburg, and to be handy loads, under- took and then and there faithfully promised the plaintiff to cause the said loads to be received at Wrightsville aforesaid, and hauled and delivered at Pittsburgh aforesaid with reasonable expedition; and the plaintiff avers that he, relying on the said promise and undertaking of the defendant, afterwards, to wit, on the said day and year at said county, to wit, Philadelphia, did send the said loads in manner and form as the defendant required as aforesaid, and that afterwards, to wit, on the said day and year, the said loads did arrive at Wrightsville aforesaid, of all which defend- ant had notice ; yet the said defendant did not nor would receive or cause to be received the said loads, nor haul and deliver the same, or cause to be hauled or delivered at Pittsburg afore- said, but wholly neglected and refused to do so; and the plaintiff avers that in order to procure the said loads in the above several counts mentioned according to the usage in that behalf established, he gave a receipt to the persons from whom the same were ob- tained, and undertook and promised that the same should be safely and expeditiously conveyed and delivered at Pittsburg aforesaid, and in default of delivery within a certain number of days, to wit, twenty days from the receipt thereof, the plaintiff would pay or cause to be paid a sum of money equal to the price per hundred of hauling in teams as aforesaid, multiplied by the number of days beyond the period within which the said loads ought to be delivered according to the stipulation aforesaid, all of which was known to the defendant, to wit, on the day and year aforesaid, at said county ; and the plaintiff further says that by reason of the promises he was forced and compelled to pay a large sum, to wit, four hundred and fifty dollars for the time over the limited period in which said loads ought to have been delivered as aforesaid, and was also forced and obliged to procure other teamsters to receive said loads at Wrightsville, and to haul and deliver the said loads at Pittsburg aforesaid, and was also put to great expense and trouble in the premises, and by reason of said neglect of the defendant delay in delivering said loads, the plain- tiff lost the confidence and custom of many persons who had em- ployed and would still have employed the plaintiff in his business as aforesaid. By reason of said several premises, the plaintiff hath suffered damage nine hundred dollars, and therefore suit is brought. 272 SUPREME COURT [Harrisburg [Stover v. Metzgar.] Upon the evidence given, which is fully stated in the opinion of the court, the court below was of opinion that the plaintiff was entitled to recover the whole amount of damages from the pre- sent defendant. Ramsey, for plaintiff in error. The court below should not have permitted the plaintiff to recover ; because it distinctly ap- pears that the present defendant contracted but for one load of goods for himself, and the plaintiff never intended to intrust him with more than one ; for he specially instructs the warehouse men at Wrightsville that but one load is to be delivered to Stover, -and one to each of the others, who were as much carriers, quo- ad hoc, as Stover. But the defendant, upon the proof given, was not liable at all. By calling repeatedly at the Post Office for six consecutive days, when he might have expected to be advised by the plaintiff of the forwarding of the goods, he exhibited his willingness and readiness to perform his engagement. The court should not have permitted tne plaintiff to file the new count, which changed the cause of action. 2 Rawle 337. Mayer and Evans, for defendant in error. The contract of the parties, as exhibited by the evidence, presented to the jury a question of intention. The plaintiff knew no one but the defend- ant ? his correspondence was with him alone, and any separation which was made of the loading, was at the instance of the de- fendant, at his request and for his convenience; the plaintiff knew not how the others were to be employed, otherwise than by Stover ; they may have been hirelings ; the plaintiff had no contract with them, nor would he have, under any circumstances, a right of action against them for a violation of contract, for they had made none. The plaintiff is exceedingly careful in his obe- dience to the special instructions of the defendant, with regard to separation of the goods into particular parcels ; and for this, it is argued, he is to be defeated in the prosecution of his claim. As to the count allowed by the court, it is but a specification of the first, and not at all repugnant to it. 2 Whart. 159; 1 Whart. 287 ; 2 Serg. fy Rawle 1 ; 1 Whart. 11. The opinion of the Court was delivered by HUSTON, J. This case presented the following facts : John Metzgar was engaged in the city of Philadelphia in engaging loading for carriers, which they were to carry to Pittsburg and other places. The goods to be carried were sent by the railroad to Wrightsville, and delivered in warehouses; at which place they were loaded in wagons for Pittsburg. Michael Stover resided in York county, some miles distant from Wrightsville ; he wrote a letter as follows : May 1841.] OF PENNSYLVANIA. 273 [Stover v. Metzgar.] "February 2d, 1841. " Mr John Metzger, " Sir I request of you to send me three loads of store goods to Wrightsville, as soon as possible. Wee want the loads as fol- lowing : Joseph King, to weigh about 50 hund : Peter Gise about 50 to 55 hund : and mine about 50 or not more than 52 hund. Pleas and keep the loads separate, and do not send the loads if the wages is much under three dollars, as wee cannot afford to hall for much less. We want the loads for Pittsburg, and if you cannot send the loads pleas and let me know as soon as this comes to hand. Send us handy loads as our wagon beds is small. Pleas and do the best for us that you possibly can, and if wages is on the rise rather hold on a day or two. " I thought proper to state this to you, as some of your friends wer oposed to sending to you as they complain that you have over- charged some of them, " I remain yours most respectfully, MICHAEL STOVER. " Direct to Farmers' P. O. York county, Penna." On the face of this letter, perhaps Stover might appear answer- able to Metzgar for the carriage of the three loads ; but Metzgar had a right to a share in making the contract ; and if it appear that he did not send three loads to Stover, or put any more than one load to his care and under his control, it is not easy to see how Stover is liable for neglect in not carrying what was never put in his power or under his control. Turner Morehead, a witness on behalf of the plaintiff, said, " On the 7th of February 1839, I delivered to John Metzgar, as directed by an order from Michael Stover, which I hereto attach marked A, three wagon loads of goods as follows : One load for Michael Stover himself, One load for Joseph King, and One load for Peter Gise. " John Metzgar receipted for the said three wagon loads in my wagon-book, in the words following : ' Philadelphia, 7th February 1839, Received of T. Morehead the following goods in good order, which I promise to deliver in like good order to the following per- sons in Pittsburg, Pa., within twenty days, they paying carriage at the rate of $3 per 100 Ibs. with charges.' " On the 7th or 8th of the same month, (February) I saw the said John Metzgar write a letter to the said Michael Stover, and direct it to him at Farmers' Post Office, York county, Pa., giving him notice to call at Futhey & Smith's, at Wrightsville, for the above loads. The same day on which Metzgar wrote the letter to M. Stover, he wrote another to Futhey & Smith, at Wrights- ville, enclosing the way-bill for each load. The same day on which John Metzgar wrote these two letters, I saw him seal and i. 35 274 SUPREME COURT [Harrisburg [Stover v. Metzgar.] mark them. On the 3d, 4th, and 5th of February, the price for carriage was on the rise, from $2.75 to $3 per 100 Ibs., and it continued to rise until it got to $3.75 and $4 for 100 Ibs. in eight or ten days. I know that Metzgar had to pay more afterwards to send the said goods to Pittsburg, after the said Stover had failed to take them, and in consequence of the delay in getting the said goods or loads forwarded in the usual time. It was a serious loss not only to me, but an injury to the business charac- ter of Metzgar. I was present when the said Metzgar paid the advance on carriage and dockage to James Bingham, of the city, as per the receipts marked B. and C. and hereto attached, which receipts I saw said Bingham sign." The plaintiff next read the deposition of George Emerick as follows : " On the 8th day of February 1839, John White & Co., of Philadelphia, of which firm I am a member, forwarded by their line, by direction of John Metzgar, three car-loads of goods, viz. one load for Michael Stover, one load for Joseph King, and one load for Peter Gise, all of which loads were delivered, agreeably to the order of said Stover, King, and Gise, to Messrs Futhey & Smith, Wrightsville, York county, Pennsylvania, from which they were to be loaded into their respective wagons. In conse- quence of the said Stover, King, and Gise not calling for their goods, agreeably to promise, and paying the freight and charges thereon, we, the said firm of John White & Co., have demanded of John Metzgar the prompt payment of $130.95, being the amount of our freight and charges thereon, which amount he paid, as appears by our receipt D. From the time we were called upon by Mr Metzgar to the delivery of the goods at Wrightsville, as short a period of time as possible was allowed to elapse ; sometimes it takes from five to six days to collect four loads of goods." The receipt was for $130.95 in full for freight and charges on three loads of goods, sent by his direction to Wrightsville, for Michael Stover, Joseph King, and Peter Gise. The plaintiff then called John Futhey, who testified as follows: John Futhey. I received this letter from John Metzgar to Fu- they & Smith, dated 8th of February 1839, containing three bills of lading, for those three men, Stover, King, and Gise. I receiv- ed it in the due course of mail. We, Futhey & Smith, received the three loads of goods mentioned in the letter at Wrightsville. I have received many letters from Metzgar in the course of a bu- siness correspondence, and know his hand-writing, and I believe this letter and signature to be in his hand-writing. Letter read in evidence, to wit : Philadelphia, Feb. 8, 1839. Dear Sir Enclosed I sende to your care the bills of three loads witch will bee up on Monday next witch I hope you will be very perticttuler with and keep eatch load separate according to the May 1841.] OF PENNSYLVANIA. 275 [Stover v. Metzgar.] bills and numbers of eatch load and settle with the wagoners ac- cording to each bill of his load and also with the agent of the cars at 47 cents per hundred and to charge the wagoners no- thing for loading as you are to charge it to John White & Co you will bleace to settle according to these bills, as I believe I made a title mistake on the manifest but is not mutch as you will perceive. I have been pertichular in stating every thing correct on eatch bill that you may have no trouble this time. Respectfully yours, JOHN METZGAR. No. 1. 1 load No. 1. for Peter Gise. No. 2. 2 Joseph King. No. 3. 3 Michael Stover. Each man's name on his bill. I have written to these men to be at your place on Monday. Mr Futhey & Smith, Wrightsville. Witness continues. Four or five days after receiving these loads, I wrote a letter, by Mr Trimmer, to Michael Stover, informing him of their arrival. I did not know where he lived until Trim- mer told me. James Bell took one load of the goods, and James Bingham, through his agents, the other two. I sent no word to Gise or King. I was governed by the letter in what I did. The three waybills were separately made out for the three men mentioned in the letter. This, is the letter I wrote by Trimmer, dated 15th of February 1839, and post-marked same date. Letter here read by defendant, who produced it, to wit : Wrightsville, February 15, 1839. Mr Michael Stover, Dear Sir, We have had three loads in the warehouse since Tuesday for you, Peter Gise, and King, sent here by John Metz- gar, which you will come for as soon as possible. Yours, &c. ISAAC TRIMMER. You had best leave home this evening, so as to be here to-mor- row. The loads are at Futhey & Smith's warehouse. Now if any doubt remained after reading the previous testimony, this seems to remove it. He directs Futhey twice to be particular ; to keep each load separate, according to the bills and numbers of the load ; to settle with the wagoners according to each bill : a separate bill for each load, and each load numbered ; and each man's name on his bill ; and he had written to these men. After all this, if Stover had called, Futhey could not have given him one package not in the bill marked with his name ; only one load was sent to or intrusted to his care ; no matter what reason in- duced Met/gar to direct each load separately, and to give such pointed directions to deliver each according to the bill ; he cannot 276 SUPREME COURT [Harrisburg [Stover v. Metzgar.J reject all his own directions and go back to Stover's letter and charge him with the whole on that. Metzgar himself did not act as if Stover was the sole contractor, and was very careful that Futhey should not so consider him or intrust all the loads to him. Stover is only answerable for misconduct as to what he was in- trusted with ; what he could have got if he had been at Wrights- ville when the goods arrived to Futhey & Smith. Some other matters were discussed a little, below and here ; an usage of trade is not like a custom ; it is often limited to those who are engaged in a particular trade ; if it is well known, and has been long and generally acted on by all parties, it is consid- ered as entering into all contracts which come within it ; it, in fact, tacitly forms a part of the contract ; it is proved by such witnesses as know it ; and if the jury believe in the custom and the veracity of the witnesses, and their knowledge of the usage, it generally settles so much of the cause as depends on it. I say generally it does so. We have in this case the assertion of Metzgar that he wrote to Stover 8th of February ; and the oath of Morehead that he saw him write and seal the letter on that day ; but we have no proof when it was put into the post-office ; it would reach its destina- tion, at farthest, on the second day after it was put into the post- office. We have the positive oath of Snodgrass, the post-officer, that Stover called daily for a letter until the 13th of February, and that no letter came for him until the 17th of February, late at night, and Stover got it next day. Here then was a delay ; before Stover knew, or could know any thing, the goods would arrive at Wrightsville, say 10th or llth. Stover knows nothing of it until the 17th or 18th; here is a delay of six or seven days, not occasioned by him ; ought he to be charged so much per day for each of these days ? or ought Metzgar to answer for this much ? Carriers are subjected to very strict law, and we are disposed to administer it strictly; but I do not know that justice or policy re- quires that they should answer for delay not occasioned by them, or for not carrying what was never put under their care or control. Judgment reversed, and a venire de novo awarded. May 1841.] OF PENNSYLVANIA. 277 Hoffman against Kissinger. It is not a valid objection to the reading of a deposition, taken in the county where the cause is tried, that the testimony of the same witness had been pre- viously taken upon a commission in another state. ERROR to the Common Pleas of Berks county. John Kissinger against Jacob Hoffman. This was an action of assumpsit, founded upon a promissory note of Jacob Hoffman to John Kissinger, for $400, dated 17th of August 1839, at ninety days. There were several bills of exception to evidence taken upon the trial, but they gave rise to no principle which was peculiar to this case, except one which sufficiently appears in the opinion of the court. The cause was argued by Hoffman and Greenough, for plaintiff in error. Smith, for defendant in error. The opinion of the Court was delivered by KENNEDY, J. The first error assigned is an exception to the opinion of the court, rejecting the affirmative answer of Charles E. Boyer, a witness on behalf of the plaintiff in error, who was the defendant below, to the fourth interrogatory annexed to the commission awarded by the court, for the purpose of taking his testimony, to Henry Brown, Esq., of the state of Illinois. The interrogatory is in the following words : " Was John Kissinger (the plaintiff below) in the habit of endorsing notes for your father (Jacob K. Boyer) at the banks in Reading, or to other persons ?" The object of the testimony of Charles E. Boyer was to show that the note, upon which this action is brought, was drawn by the defendant below, for the accommodation of Jacob K. Boyer, payable to the plaintiff there, who was to endorse it for the like purpose, so that Jacob K. Boyer might be enabled to raise money upon it, by getting it discounted at some of the Reading banks. Now, had there been any evidence given, tending to show that the note had been drawn for such purpose, it may possibly be that the answer of the witness would have been admissible, as corroborative evidence, so far as it went, to show that the plain- tiff below had been in the practice of endorsing notes for the accommodation of Jacob K. Boyer, to enable him to raise money in the manner above stated. The only evidence given on the sub- ject was, that the same witness, in his answer to the second in- terrogatory, testified that he was present, and heard a conversa- 278 SUPREME COURT [Harrisbttrg [Hoffman v. Kissinger.] tion, in August 1833, between the plaintiff and defendant, and the deponent's father, about making or endorsing a note for the deponent's father, in his lifetime, in order to enable him to raise money to buy goods in Philadelphia ; that it was agreed that the avails of said note should be left with the deponent, to be remit- ted by him to his father in Philadelphia; but he saw no such note, nor did he know that any such was ever made ; at all events, he never received any money to be remitted as mentioned. The note in suit bears date about the time at which the witness says he heard the conversation ; and that is the strongest, if not the only resemblance which it bears to the subject of the conver- sation, testified to by the witness. Jacob K. Boyer's name is not on it, which most probably would have been the case, if it had been drawn for the purpose of which the witness speaks. Neither did it appear from any evidence that it had been offered at any of the banks in Reading for the purpose of getting it discounted ; so that there really was no circumstance in evidence, tending to show that it was given by the defendant below to the plaintiff, for the purpose of raising money for the accommodation of Jacob K. Boyer. And it is incomprehensible how the fact, if proved, that the plaintiff below had been in the practice of endorsing notes for the accommodation of Jacob K. Boyer, to enable him to raise money by getting them discounted at the banks in Read- ing, could of itself afford the slightest presumption that the note in suit was drawn and delivered for such purpose. It might pos- sibly, if it had been proved to the jury, have misled them. We therefore think the answer was properly rejected. The second error is a bill of exception to the opinion of the court, admitting the testimony of Henry Rhoads on behalf of the plaintiff below, after an objection to it by the defendant. The plaintiff offered to prove by Henry Rhoads a settlement made between the plaintiff below and Jacob K. Boyer, in which the note in suit was credited to Jacob K. Boyer, and that still there was a balance coming from Boyer to Kissinger. This was ob- jected to by the defendant, but the court admitted the evidence. This evidence was undoubtedly admissible, because it went to explain the testimony of Jacob Geehr, a witness, and the father- in-law of the defendant below. Mr Geehr testified, that shortly after the commencement of this suit, he met with Kissinger, the plaintiff, when, " he asked him at what time the money was ad- vanced by him to Mr Hoffman, for which this suit \vas brought ; that Kissinger answered that he never advanced any on the note in suit. That witness then asked Kissinger how Hoffman got in debt to him, and he said it originated from Jacob K. Boyer, it came in that way. He either did not, or would not explain, but said he lost so much with Boyer, or else he never would have sued." The evidence of Mr Geehr was given, as it was al- leged, to show that no consideration passed from Kissinger to May 1841.] OF PENNSYLVANIA. 279 [Hoffman v. Kissinger.] Hoffman for the note, and thence to have it inferred that it was given for the accommodation of Jacob K. Boyer. If Jacob K. Boyer obtained the note in suit from Mr Hoffman, making it payable to Kissinger, it was a sufficient consideration to make it binding on Mr Hoffman, that Jacob K. Boyer was indebted to Kissinger, and that the note was procured by Boyer of Hoffman, for the purpose of satisfying so much of the debt owing by Boyer to Kissinger. This state of the case is certainly consistent with all that Kissinger said to Mr Geehr ; but if Kissinger had not offered to show the indebtedness of Boyer to him, then it would have been said, and possibly the jury might have believed it, that Kissinger had got the note without giving a consideration, or any thing to any one for it. Whether Mr Hoffman was indebted to Boyer or not, and gave the note to Boyer, in consideration of getting a credit from Boyer for the amount of it, is not a matter that Kissinger was bound to know, or could be presumed to have a knowledge of; and therefore was not bound to show it on the trial. But it would seem that the bare offer to give the evi- dence objected to, was all that Kissinger had the benefit of; for the court, after permitting Rhoads, the witness, to prove the paper containing the settlement between Kissinger and Boyer, which was reduced to writing between them, refused to let the settlement be read in evidence; so that no harm was done, even supposing it to have been inadmissible, on account of Mr Hoff- man's not having been present when it was made. The third error assigned, is an exception to the opinion of the court below, admitting the deposition of Charles E. Boyer, taken by the plaintiff below, under a rule of court, before a justice of the peace, in the same county where the cause was tried, some time after the witness's testimony had been taken by the defend- ant below, under the commission mentioned above, in which the plaintiff did not join or file cross-interrogatories. The objec- tion made to reading the deposition is, that it was not compe- tent for the plaintiff below, after having declined to annex cross-interrogatories to the defendant's commission, to take the testimony of the same witness again, either under a commis- sion or under a rule of court, without the special order of the court. In support of this proposition, the cases of Hook v. Hack- ney, (10 Serg. 4* Rawle 385) and MKinney v. Dows, (3 Watts 250) have been cited. The first of these cases, however, rather goes to show that a second commission may be taken by the defendant, to examine the same witness examined by the plaintiff under the first commission ; but that the defendant can not claim the pri- vilege of a cross-examination under it, by giving to his interroga- tories a leading form, without leave of the court. And the se- cond only decides that a party, who has neglected to file cross- interrogatories to a commission taken out by the adverse party, can not afterwards, without leave of the court, take out a second 280 SUPREME COURT [Harrisburg [Hoffman v. Kissinger.] commission to examine the same witness upon interrogatories drawn up in a leading form, as if it were a cross-examination. In the present case the deposition of Charles E. Boyer, taken by the plaintiff below, is free from all exception on the ground of leading questions having been put to him by the plaintiff below or his counsel, who caused it to be taken. And why it should not have been taken or read in evidence for any other good rea- son, has not been shown. It has been said that it is giving to the party, taking the testimony of the witness a second time, an un- fair advantage ; that the party, taking it the second time, may have tampered with the witness in such manner as to get him to destroy the effect that otherwise would have been produced by his testimony given in the first instance. Such a thing may pos- sibly happen, but then it can not occur unfairly, if the witness be a person of truth and worthy of credit ; if otherwise, it is but right that his moral deformity should be exposed. Besides, gene- rally the advantage of taking the testimony of witnesses under a commission, is greatly in favour of the party who makes them his witnesses in the first instance and examines them as such. Be- cause he takes out the commission when he pleases, and carries it to the commissioners to be executed, at such time as they may appoint for him to have the witnesses in attendance, without its being necessary to give any notice to the adverse party ; the wit- nesses are always examined in the absence of the adverse party, and most generally in the presence of the party taking the com- mission or his agent, and that too after he has been with them for some time previously preparing them for the examination in his favour. The mode therefore in which commissions from courts in this state to take the testimony of witnesses, have been and may be executed, I have ever considered very exceptionable, and by no means so favourable for eliciting the truth from witnesses as a vivd voce examination in court, or an examination by the par- ties respectively before a proper officer within the state, under a rule of court ; because in neither of these latter cases can the witness be examined without an opportunity being afforded to the opposite party to be present, so that he may see whether the examination is fairly conducted by his adversary, and have it in his power to cross-examine afterwards, in such manner as the na- ture of the testimony given in chief may require, which it is often difficult, if not impossible, to determine on, until the testimony is heard. But it is admitted upon all hands, that the testimony of a witness taken on a commission can not be read on the trial of the cause, if the witness be within a certain distance of the place of trial, and within the jurisdiction of the court and able to at- tend ; and for this plain reason, because it is more favourable to the investigation of truth to have the witness examined in court than out of it. And for a like reason, as it is more favourable to truth to have the witness examined in the presence of both par- May 1841.] OF PENNSYLVANIA. 281 [Hoffman v. Kissinger.] ties, before a proper officer within the state, under a rule of court, than it is to have him examined under a commission, when the party taking the commission or his agent may always attend, and the adverse party never can, as he is not to be notified of it, the latter mode ought therefore to be preferred, and the latter party ought ever to be at liberty, if an opportunity offers, to take the testimony of the witness a second time under a rule of court, when both parties will be placed, as nearly as can be, upon an equal footing. In many instances much may be gained for the cause of truth by it, and hence no impediment ought to be thrown in the way of it. Indeed, the advantage to be derived from it in this respect, has been manifested by the instance we have of it in the present case. For according to the deposition of Charles E. Boyer taken under the rule of court, it turns out that the conversation which he testified to under the commission, as having been heard by him between his father, the plaintiff and defendant below, was merely what his father told him in the absence of both the plaintiff and defendant, and in short that he never heard any such conversation. The fourth and last error is an exception to the opinion of the court below, admitting the testimony of George Ludwig, after that the defendant below had objected to it. Ludwig was offered by the defendant below to prove that the note in question was left by him in the Farmers' Bank at Reading for collection, a month after it was given, according to its date. Although this evidence does not appear to have had much to do with the issue in the cause, yet we can not say that it was altogether irrelevant or calculated to mislead the jury. The object of it, as is alleged, was to repel the allegation of the defendant below that the note was given by him to raise money for Jacob K. Boyer, by getting it discounted at one of the banks in Reading. Had there really been any evidence given, tending to prove that the note had been given for such purpose, the testimony of Ludwig would only have shown that the plaintiff below had used it improperly, and cer- tainly would have done him no good ; but as there was no testi- mony of that tendency given, the use that the plaintiff below made of the note is sufficient to repel the allegation of the de- fendant. And indeed, if the bank demanded payment of the note from Mr Hoffman, as they ought to have done, after having re- ceived it for collection, it may be thought somewhat strange that Mr Hoffman, after being thus advised that he was looked to for payment of the note, should have suffered it to lie over without ever making an effort, that we have heard of, to get it up. If it be, that he ought not to pay the note, he is unfortunate in not being able to snow it more clearly than he has done. Judgment affirmed, i. 36 * 282 SUPREME COURT [Harrisburg Hockenbury against Carlisle. Official books and papers must be proved by producing an exemplified copy from the proper office ; or if circumstances require that the originals should be pro- duced, they must be brought from the office and verified by the officer who has the keeping of them, or his clerk, or some one specially authorized by him for that purpose. They cannot be verified by one who has no connexion with the office, but who happens to know them. ERROR to the Common Pleas of Juniata county. Samuel Carlisle against Henry Hockenbury, David W. Ruling, and others. This was an action of ejectment for a tract of land. The plain- tiff claimed title under a sale of the land as unseated by the treas- urer for the payment of taxes ; and to support it he called Ephraim Banks, Esq., as a witness, who testified : that the books produced were the original assessment books, the unseated land book, and the treasurer's sale book, which belonged to the commissioners' office of Mifflin county ; that he was well acquainted with them ; that he had once been a clerk in the commissioners' office, but that now he had no connexion with the office. The plaintiff then offered the books in evidence ; to which the defendant objected, on the ground that they were not proved by the proper officer having the custody of them. The court overruled the objection, and sealed a bill of excep- tion. This was the only material point in the cause. Hiding and J. Fisher, for plaintiff in error, relied upon the case of Devling v. Williamson, (9 Watts 317.) Parker and Benedict, for defendant in error. The opinion of the Court was delivered by SERGEANT, J. The first error assigned is in the admission of the treasurer's book and papers without being duly proved ; and the objection is that they were produced and proved by Ephraim Banks, Esq., who had not the legal custody of them, and was not treasurer or commissioner, or one of their clerks. This very point was decided by this court in the case of Devling v. Williamson. (9 Watts 317,) where it was held that official papers must be proved by producing an exemplified copy from the proper office, or if circumstances require that the originals should be produced, they must be brought from the office and verified by the officer him- May 1841.] OF PENNSYLVANIA. 283 [Hockenbury v. Carlisle.] self, who has the keeping of them, or his clerk, or some one spe- cially authorized by him for that purpose. Here Mr Banks was neither ; for though he had formerly been a clerk in the office, yet he was not connected with it at the time of giving his testimony, but stood in the light of any third person or stranger. The ab- solute necessity for this rule, as well to guard the public muni- ments and archives of property from loss and injury, as to pre- serve the channels of evidence pure, is sufficiently manifested by the reasoning of the court in that case, and proved by sad expe- rience of the mischiefs that have resulted, and must, if not check- ed, continue to result from the loose, irresponsible, and dangerous practice of permitting any and every body to carry off the pub- lic records from their depositories for the sake of private conve- nience, instead of resorting to the known and settled modes which the law has provided for their proof or exhibition in court. We think, therefore, that the court below erred in receiving the evi- dence under these circumstances. The next two bills of exceptions are to evidence admitted by the court, which the plaintiff in error objects to as having been irrelevant, and the defendant in error excuses on the ground of its unimportance on the trial of the cause, alleging that it was introduced from a misconception of the point on which the cause would turn. As the case will go to another trial, it is unneces- sary, therefore, further to notice them. Nor is it necessary to consider more fully the eighth error, for the same reason. It is not likely that the same evidence exactly will be given, or that the cause will be presented again in precisely the same way. Judgment reversed, and venire facias de novo awarded. O'Donnell against Lynch. An award of arbitrators in favour of a defendant for a certain sum has the effect of a judgment upon which an execution may issue without a scire facias against the plaintiff. If there be competent evidence given on the trial of a cause which is conclu- sively fatal to the plaintiff's action, the court will not inquire into the alleged incompetency of other evidence, to the admission of which exception was taken. ERROR to the Common Pleas of Dauphin county. This was an action of ejectment by Charles O'Donnell against John Lynch and John Gingrich for a tract of land. After the plaintiff had given evidence of title, the defendants 284 SUPREME COURT [Hamsburg [O'Donnell v. Lynch.] offered in evidence the record of an action of assumpsit by John O'Donnell, for the use of Charles O'Donnell, against Charles Car- son and John M'Knight, which was referred to arbitrators, who made an award on the 17th of January 1829, of $701.17, in fa- vour of the defendants : To be followed by proof that the land in controversy was sold as the property of Charles O'Donnell, and a sheriff's deed given for the same. The counsel for the plaintiff objected to this evidence, on the ground that the award of arbitrators was filed, and no judgment entered on the award. That the report being under the defalca- tion act could be made a lien only by a scire facias on the report, and was not such an entry on the award as would create a lien upon the land. 2d. That all these proceedings are since suit brought ; that al- though the action of ejectment is a possessory remedy, the plain- tiff would be entitled to a verdict for the purpose of asserting his remedy for mesne profits. The defendants said further, that they had purchased the title from the sheriff's vendee, and with this offered evidence of their purchase; under these circumstances, the court overruled the objection and admitted the evidence. To which the counsel for the plaintiff excepted. There were several other bills of exception to the admission ot evidence. But the plaintiff having given the evidence contained in the above bill, the court instructed the jury that it was fatal to the plaintiff's recovery. Rawn and M'Clure, for plaintiff in error, argued that the award of arbitrators in favour of a defendant cannot have the effect of a judgment without a writ of scire facias against the plaintiff, and cited the Act of 1705, 2 Watts 230. The execution was there- fore void, and the sale did not devest the plaintiff's title. 3 Watts 32; 10 Watts 118. Hamilton Alricks, contra. The award was not under the Act of 1705, but that of 1810, which is different in its phraseology, and gives to the award the effect of a judgment. 7 Serg. fy Rawle 468 ; 6 Watts 296. But although the proceeding may have been irregular, yet the purchaser would not be thereby affected. 8 Watts 416; 2 Binn. 40. PER CURIAM. If the plaintiff was not entitled to recover against such parts of the written evidence as were competently introduced, his exceptions to other parts of it can not avail him ; for such parts of it could do him no further prejudice than the competent parts would do. The defendant offered the record of an action by the plaintiff, in which there was an award of $700 against him under the arbitration act, to be followed by proof that May 1841.] OF PENNSYLVANIA. 285 [O'Donnell v. Lynch.] the land was levied and sold by execution on it. This was oppos- ed on the ground, that as the arbitrators stood in the place of a court and jury, their award of a balance against the plaintiff could not be made the foundation of an execution without scire facias and judgment on it, pursuant to the defalcation act ; and beside, that notwithstanding the devesture of the plaintiff's title by it subsequently to the commencement of this ejectment, he might still go for damages and costs. But these objections were pro- perly overruled, because the arbitration act gives an award pur- suant to it the effect of a judgment ; and because the evidence furnished a decisive bar to the greater part of the subject of re- covery. The judge indeed afterwards charged, that as the title depended on written evidence, and the construction being for the court, he was bound to say the plaintiff could not recover ; and had the plaintiff gone avowedly for damages and costs (he had not given notice of an intent to go for mesne profits) this might have been erroneous : but it is not pretended that he prayed a spe- cial instruction in this particular, or went for any thing less than the land. The other bills of exceptions are unimportant. Judgment affirmed. Gordon against Hutchinson. A wagoner who carries goods for hire, thereby contracts the responsibility of a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment. ERROR to the Common Pleas of Centre county. This was an action on the case by James B. Hutchinson against James Gordon. The defendant pleaded non assumpsit. The facts were that the defendant, being a farmer, applied at the store of the plaintiff for the hauling of goods from Lewistown to Bellefonte, upon his return from the former place, where he was going with a load of iron. He received an order and loaded the goods. On the way the head came out of a hogshead of mo- lasses, and it was wholly lost. In this action the plaintiff claimed to recover the price of it. There was much proof on the subject of the occasion of the loss : whether it was in consequence of ex- pansion of the molasses from heat, or of negligence on the part of the wagoner, of which there was strong evidence. The defendant took the ground that he was not subject to the responsibilities of a common carrier, but only answerable for 286 SUPREME COURT [Harrisburg [Gordon v. Hutchinson.] negligence, inasmuch as he was only employed occasionally to carry for hire. But the court below (Woodward, President) instructed the jury, that the defendant was answerable upon the principles which govern the liabilities of a common carrier. Blanchard, for plaintiff in error, argued the same point here, and cited in support of it 2 Kent's Com. 597 ; Story on Bail. 298 ; 2 Lord Raym. 909 ; 2 Marsh 293 ; Jones on Bail. 306 ; 5 Rawle 188 ; 1 Wend. 272 ; Leigh N. P. 507 ; 2 Salk. 249 ; 2 Bos. $ Put. 417 ; 4 Taunt. 787. Hale, for defendant in error, cited 4 JV. Ham. 306 ; Bui. JV. P. 7 ; 1 Salk. 282 ; 1 Wils. 281 ; Story on Bail. 325; 2 fFato 443. The opinion of the Court was delivered by GIBSON, C. J. The best definition of a common carrier in its application to the business of this country, is that which Mr Je- remy (Law of Carriers 4) has taken from Gisbourn v. Hurst, (1 Salk. 249) which was the case of one who was at first not thought to be a common carrier only because he had, for some small time before, brought cheese to London, and taken such goods as he could get to carry back into the country at a reasonable price ; but the goods having been distrained for the rent of a barn into which he had put his wagon for safe keeping, it was finally resolved that any man undertaking to carry the goods of all per- sons indifferently, is, as to exemption from distress, a common car- rier. Mr Justice Story has cited this case (Commentaries on Bailm. 322) to prove that a common carrier is one who holds himself out as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation pro hac vice. My conclusion from it is different. I take it a wagoner who carries goods for hire is a common carrier, whether transportation be his principal and direct business, or an occasional and incidental em- ployment. It is true the court went no further than to say the wagoner was a common carrier as to the privilege of exemption from distress ; but his contract was held not to be a private un- dertaking as the court was at first inclined to consider it, but a public engagement, by reason of his readiness to carry for any one who would employ him, without regard to his other avoca- tions, and he would consequently not only be entitled to the pri- vileges, but be subject to the responsibilities of a common carrier: indeed they are correlative, and there is no reason why he should enjoy the one without being burthened with the other. Chan- cellor Kent (2 Commentaries 597) states the law on the authority of Robinson v. Dunmore, (2 Bos. 4* Pul. 416) to be that a carrier for hire in a particular case, not exercising the business of a com- mon carrier, is answerable only for ordinary neglect, unless he assume the risk of a common carrier by express contract ; and May 1841.] OF PENNSYLVANIA. 287 [Gordon v. Hutchineon.] Mr Justice Story (Com. on Bail. 298) as well as the learned anno- tator on Sir William Jones's Essay (Law of Bailm. 103 d. note 3) does the same on the authority of the same case. There, how- ever, the defendant was held liable on a special contract of war- ranty, that the goods should go safe ; and it was therefore not material whether he was a general carrier or not. The judges, indeed, said that he was not a common carrier, but one who had put himself in the case of a common carrier by his agreement ; yet even a common carrier may restrict his responsibility by a special acceptance of the goods, and may also make himself an- swerable by a special agreement as well as on the custom. The question of carrier or not, therefore, did not necessarily enter into the inquiry, and we cannot suppose the judges gave it their prin- cipal attention. But rules which have received their form from the business of a people whose occupations are definite, regular, and fixed, must be applied with much caution and no little qualification to the business of a people whose occupations are vague, desultory, and irregular. In England, one who holds himself out as a general carrier is bound to take employment at the current price ; but it will not be thought that he is bound to do so here. Nothing was more common formerly, than for the wagoners to lie by in Phila- delphia for a rise of wages. In England the obligation to carry at request upon the carrier's particular route, is the criterion of the profession, but it is certainly not so with us. In Pennsylva- nia, we had no carriers exclusively between particular places, be- fore the establishment of our public lines of transportation ; and according to the English principle we could have had no common carriers, for it was not pretended that a wagoner could be com- pelled to load for any part of the continent. But the policy of holding him answerable as an insurer was more obviously dic- tated by the solitary and mountainous regions through which his course for the most part lay, than it is by the frequented thorough- fares of England. But the Pennsylvania wagoner was not always such even by profession. No inconsiderable part of the trans- portation was done by the farmers of the interior, who took their produce to Philadelphia, and procured return loads for the retail merchants of the neighbouring towns ; and many of them passed by their homes with loads to Pittsburg or Wheeling, the princi- pal points of embarkation on the Ohio. But no one supposed they were not responsible as common carriers ; and they always com- pensated losses as such. They presented themselves as appli- cants for employment to those who could give it ; and were not distinguishable in their appearance, or in the equipment of their teams from carriers by profession. I can readily understand why a carpenter, encouraged by an employer to undertake the job of a cabinetmaker, shall not be bound to bring the skill of a work- man to the execution of it ; or why a farmer, taking his horses SUPREME COURT [Harrisburg [Gordon v. Hutchinson.] from the plough to turn teamster at the solicitation of his neigh- bour, shall be answerable for nothing less than good faith ; but I am unable to understand why a wagoner soliciting the employ- ment of a common carrier, shall be prevented by the nature of any other employment he may sometimes follow, from contract- ing the responsibility of one. What has a merchant to do with the private business of those who publicly solicit employment from him ? They offer themselves to him as competent to perform the service required, and in the absence of express reservation, they contract to perform it on the usual terms, and under the usual responsibility. Now, what is the case here ? The defendant is a farmer, but has occasionally done jobs as a carrier. That, however, is immaterial. He applied for the transportation of these goods as a matter of business, and consequently on the usual con- ditions. His agency was not sought in consequence of a special confidence reposed in him there was nothing special in the case on the contrary, the employment was sought by himself, and there is nothing to show that it was given on terms of diminished responsibility. There was evidence of negligence before the jury; but independent of that, we are of opinion that he is liable as an insurer. Judgment affirmed. Case of Elizabeth Baird. A trustee appointed by will, is amenable to the jurisdiction of the Court of Common Pleas, unless it appear that the trust is annexed to the office of executor, quasi executor, or rations, officii, in which case, the Orphans' Court alone has jurisdiction. APPEAL from the decree of the Common Pleas of York county. A petition was presented by George Baird and others to the Court of Common Pleas, praying the discharge of William John- son, trustee of Elizabeth Baird under the will of Rachel Stewart, which was as follows : "In the name of God. Amen. I, Rachel Stewart, of the Borough of York, in the State of Pennsylvania, being aged and infirm, but of sound mind and memory, do make my last will and testament as follows : After payment of debts and expenses, I giye, bequeath and devise, unto my son William Johnson, his heirs and assigns, in trust, as hereafter mentioned, all my estate, of every kind and description, to be applied by him, so far as the interest, income, or May 1841.] OF PENNSYLVANIA. 289 [Case of Elizabeth Baird.j profits thereof, to the separate use of my daughter, Elizabeth Baird, during her life, at such times, and in such manner, as he thinks best. And I authorize and empower my said son William, as my executor, at any time he may deem advantageous, to sell and dispose of all, or any part or portion of my estate, and the proceeds to be put to interest for the uses aforesaid. At the de- cease of my said daughter Elizabeth, any property or estate not before sold, I direct my executor to sell ; and, my whole estate being then converted into money, I give and bequeath and direct my said executor to divide the whole principal sum to and amongst the children of my said daughter Elizabeth, in equal shares, as also any arrearages of interest that may be then left. And I appoint my said son William my whole and sole executor of this my last will and testament, hereby revoking all other wills." The court below was of opinion that the execution of the trust involved the exercise of power conferred on William Johnson, as executor, for which reason the court dismissed the application for want of jurisdiction. Hambly, for appellants, argued that the Common Pleas alone had jurisdiction, and cited 9 Watts 300 ; Slroud's Purd. 991, sec. 1. R. fisher, contra. It is only desirable that the jurisdiction be rightly exercised, as all parties are willing to protect the interests created by the will. The opinion of the Court was delivered by ROGERS, J. The 15th section of the Act of the 14th of June 1836 (Str. Purd. 999) provides, that when a trust of either real or personal estate has been created by deed, will, or otherwise, for the use or benefit of any person, the court of Common Pleas of the county in which the trustee has resided, shall exercise the jurisdiction and powers given by law in regard to such trust; provided, that nothing therein contained shall extend to trusts created by will, and vested in executors or administrators, either by the words of the will, or by the provisions or operations of law, wherever such executors or administrators are, by the exist- ing laws, amenable to the Orphans' Court. By a previous Act, passed the 14th of April 1828, the several District Courts, and courts of Common Pleas, are authorized to grant relief in equity in all cases of trust, so far as regards the appointment of trustees, either in consequence of the death, lunacy, or other inability of a trustee, &c. ; or when a trustee, or trustees, named in any last will and testament, renounce or refuse to act under such appoint- ment. By the operation of the Acts abovementioned, jurisdiction over the subject matter of the application is vested in the court of Common Pleas, unless the case comes within the meaning of i. 37 z 290 SUPREME COURT [Harrislwrg [Case of Elizabeth Baird.] the ppoviso. These Acts have been under consideration in this court in two cases ; (4 Whart. 183) Innes's Estate, and in Ebert <$ Bamitz's Appeal, (9 Watts 300.) In the first, Mr Justice Ser- geant has given an accurate history of the legislation of this state in regard to trusts. In Barnitz's Appeal, the case was this : The testatrix appointed her mother trustee for her sister, and authorized her to take all the property devised to her in her own hands; she also appointed her mother her sole executrix. On the death of the mother, the Court of Common Pleas, on the petition of the devisee, ap- pointed a trustee. On an appeal, this court decided that the jurisdiction to appoint a trustee was vested in the Common Pleas, and not the Orphans' Court. That the fact that the mother was both trustee and executrix, made no difference. The reason given by Mr Justice Kennedy, who delivered the opinion of the court, is, that although the trust was created by will, and the same person was executrix and trustee, yet the trust was not vested in her, quasi executrix, or ratione officii, but was vested in her, nominatim. The result of these cases is, that unless it appear that the trust is annexed to the office of executor, quasi execu- tor or ratione officii, it is not within the exception in the proviso; the jurisdiction remains, unless it is taken away from the Courts of Common Pleas. Thus, where a man wills that his executors, without naming them, shall sell his lands, or perform any other trust created by his will, or where a testator creates a trust, with- out saying who shall execute it, and names an executor, the execu- tion is intrusted to him by operation of law ; and in such cases, and in others that may be named, the Orphans' Court alone have jurisdiction. To apply these principles to the case in hand : The testatrix appointed William Johnson trustee, nominatim. By virtue of this appointment and the devise to him, he became the trustee of all her estate of every kind and description, to be applied by him, so far as the interest, income, or profits thereof, to the separate use of her daughter, Elizabeth Baird, during her life, at such times and in such manner as he thinks best. On the authority therefore cited, it would seem to be pretty clear that the jurisdiction over this matter is vested in the Court of Common Pleas ; the case being unaffected by the proviso in the Act of the 14th of April 1814. The trustee took upon himself the execution of the will, as trustee, under the above clauses, and not as a trust annexed to his office of executor. The only difficulty arises from a subsequent part of the will, which may perhaps come within the proviso ; but with this, at this time, we have nothing to do. The testatrix authorizes and empowers her son William, as her executor, to sell and dispose of a part or portion of her estate, at any time, he may deem advantageous, and apply the interest of the proceeds to the use of her daughter Elizabeth. And after her decease, she directs her executor to sell that part of her pro- May 1841.] OF PENNSYLVANIA. 291 [Case of Elizabeth Baird.] perty not before disposed of, and to divide it among the children of her daughter Elizabeth. Now, whether William can execute the last power as executor, ratione officii, or annexed to the office of executor, we do not undertake to decide. The only question now is, as to the power or jurisdiction of the Court of Common Pleas over the trustee appointed to execute the trust under the first clause. It is understood that no part of the property has been sold, nor is it intended that any shall be sold, for the pur- pose of putting it to interest for the use of the devisee. Nor has the last clause come into operation, inasmuch as Elizabeth is still living. The court orders that the decree of the Common Pleas be re- versed, with directions to proceed, hear, and determine on the application of the petitioner. Case of Patterson's Estate. Each of several co-administrators has a right to settle a separate account of his administration, but this will not affect his joint liability on his official bond for the acts of his co-administrator. APPEAL by James Patterson one of the heirs of John Patter- son, deceased, from the decree of the Orphans' Court of York county settling the administration account of William Reed one of the administrators of John Patterson, deceased. Upon the death of John Patterson administration pendente lite upon his estate was granted to Moses Rankin and Samuel Bacon, who on the 14th of September 1817 settled an account, exhibiting a balance in their hands of $2,939.64. These administrators were afterwards discharged and new letters were granted to Moses Rankin and Jacob Eichelberger, on the 20th of October 1820. On the llth of September 1821, Moses Rankin, styling himself surviving administrator pendente lite, settled another account, charging himself with the last balance and introducing new items on both sides of the account. This account was intended to be of the administration of the said Moses Rankin and Samuel Ba- con, and exhibited a balance in his hands of $2,849.87^. On the 17th of September 1822, Moses Rankin and Jacob Eichelberger settled an account, and charge themselves with the last balance, take some credits and leave a balance in their hands of $1,823.81, consisting as they say of bonds and judgments not collected. 292 SUPREME COURT [Harrisburg [Case of Patterson's Estate.] About this time a decision was made against the validity of the will of John Patterson, and on the 27th of October 1823 admin- istration was granted to Jacob Eichelberger and William Reed, who gave bond in the usual form with sureties in $3,000. On the 4th of December 1839, William Reed presented an account of his administration showing that he had received some small sums and paid out some more, leaving a small balance in his favour. To this account an exception was filed by James Patterson one of the heirs, that the accountant should be charged with $1,823.81, the balance in the hands of Jacob Eichelberger his co-administra- tor upon the settlement of his account as administrator pendente lite. Eichelberger had been dead several years. The court below (Durkee, President) overruled the exception, and the account was confirmed. Ramsey, for appellants. Administrators being jointly and seve- rally liable for the acts of each other, we contend that the present accountant should be charged with the moneys which were in the hands of his co-administrator Jacob Eichelberger. The form in which he shall be charged can not be a matter of importance ; if he be liable on his bond, he may as well be charged in this shape. 16 Serg. 4- Rawle 416 ; 1 Watts 365. Mayer, for appellee. It is too well settled to be now disturbed, that each administrator may settle an account of his own doings. 14 Serg. 4- Rawle 357 ; Act of 21th March 1813 ; 2 Penn. Rep. 482; 3 Rawle 371. It would be inconvenient if an administrator were bound to try his liability for the acts of his co-administrator in the shape of an exception to his account ; inconvenient as respects the rights of the heirs, and especially so as regards the adminis- trators themselves. There is no reason therefore for disturbing the rule so judiciously settled. The opinion of the Court was delivered by HUSTON, J. In 11 Serg. fy Rawle 204, 207, it is said by the late Chief Justice that each administrator certainly has the right of settling a separate account, and in such case each is to be looked to for that portion of the estate which came to his hands. And, MNair's Appeal, (4 Rawle 157) after an elaborate discussion, comes to this conclusion : " I am induced to believe that there is no good reason for making executors or administrators liable more than trustees, for moneys which they have never actually received, merely because they joined in a receipt with the co-executor or co- administrator who did receive it." In this case, however, Reed never did join in any receipt, at least it is not stated that he did. It will, however, be observed that each of these judges was speak- ing of the liability of the administrator in the first instance in the Orphans' Court. It is well settled that Chancery will compel him May 1841.] OF PENNSYLVANIA. 293 [Case of Patterson's Estate.] to pay in the first instance who will be ultimately liable. The Orphans' Court is a Court of Chancery, and acts, or ought to act, on Chancery principles : and, where administrators are solvent, will decree each to pay according to right and justice. But ad- ministrators join in a bond for the faithful performance of their duty, and when sued on this bond, will each be bound for the de- vastavit of the other so will the sureties in the bond given by them. But it must further be considered that Reed had no power to draw the assets out of the hands of his co-administrator each was bound to pay debts and legacies, and each had an equal right to keep the assets in his hands for that purpose and one admin- istrator can not sustain a suit against another as long as there are claims against them to be paid. Steinman v. Saunderson, (14 Serg. fy Rawle 357.) When a man dies indebted or chargeable with mo- neys not accounted for, his representatives must settle those ac- counts, and his estate pay those debts if it is sufficient. Eichel- berger's representatives may be able, though Reed is not, to show that this money has been properly applied. If on a settlement of his accounts this is not shown, resort may be had to the ad- ministration bond. Or it is possible this money or part of it may have never been received from Rankin, who charged himself with it jointly with Eichelberger. Rankin and Eichelberger gave bond and sureties : are they entirely discharged ? But the only matter before us is the question, could Reed file and settle a separate ac- count ? and on principle and authority he could. How far he or any others may be liable in a suit on the bond, we are not called on at this time to say. Decree affirmed. Seitzinger against Fisher. The debts of a decedent cease to be a lien after the lapse of seven years from his death, after which the lands of which he died seised cannot be made liable for their payment. It is not a good cause to set aside an execution because it was levied upon lands for whicfi the defendant had no title; or because the lien of the judgment had been lost from lapse of time. ERROR to the Common Pleas of Berks county. Jacob W. Seitzinger against Michael Fisher and Sarah, his wife, late Sarah Gerber, Susan Deem, Elizabeth Sharman, and Leah Strohecker. Feigned issue, directed by the Court of Com- mon Pleas of Berks county, to ascertain whether a certain judg- ment, execution and levy thereon, at the suit of David Gerber, to i. z* 294 SUPREME COURT [Harrisburg [Seitzinger v. Fisher.] the use of Jacob W. Seitzinger v. John Gerber's administrators, are a lien on the lands of the said John Gerber, deceased, in Northumberland county, now in the possession of his heirs, or not. The plaintiff's counsel resisted the granting of this issue, but it was directed by the court. The plaintiff gave in evidence a judgment obtained in the court below in his favour, against the administrator of John Gerber, de- ceased. The suit was brought to January term 1828, and an award of arbitrators was made in favour of the plaintiff for $897.88, on the 29th of July 1829. A scire facias was issued on this judgment, against the admin- istrator only, to April term 1835, and on the 8th of November 1835, judgment was obtained. A testatum execution was issued on this judgment, to Northumberland county, and lands which had belonged to the decedent in his lifetime were levied on. On the part of the defendants, it was shown that John Gerber died on the 14th of March 1819 ; that John and David Gerber were his administrators, he having died intestate ; that they were dismissed, and on the llth of July 1822 filed their account, which showed a balance against them of $10,110.06. Their dismission took place on the 14th of April 1824. Drenkle was then ap- pointed administrator: he died without having settled his account. Esterly was his administrator, and filed an account of his admin- istration on the estate of Gerber on the 20th of April 1831. This account was confirmed on the llth of August 1832. The ba- lance in favour of the estate was 81518.56. The defendants were admitted to be heirs of John Gerber, de- ceased, and as such to have had possession of the lands levied on after the time of his death. At the instance of the defendants, the proceedings to make sale of the lands were suspended, and issue directed to determine whe- ther the judgment was a lien on the lands levied on, or not. BANKS, President. This issue was directed to prevent litiga- tion, and to secure whatever right the heirs might have to the lands, although, after sale, they might have been permitted on ejectment to make their defence if an opportunity to do So now had been denied them, I deemed it best for all concerned to have it done now. In this I do not think we transcended our power. Was, and is the judgment a lien on the land ? Gerber died in 1819. The plaintiff's suit was brought in 1828. By law the lien of the debts of a decedent is limited, under certain restric- tions, to seven years. The action was the first step that was taken to recover this claim. The seven years have gone by. The lien was then gone. The judgment was not a lien upon it. The testatum was issued about twenty years after the death of Gerber. This suit could not attach as a lien, then, for the first time on the lands of the deceased debtor, in the possession of the heirs. That the judgment and execution process was not a lien upon the land, May 1841.] OF PENNSYLVANIA. 295 [Seitzinger v. Fisher.] I consider to be well settled by the cases cited. 1 Watts 9 ; 2 Watts 60 ; 4 Watts 429 ; and 7 Watts 334. The law entitles the defendants to a verdict. To this charge the plaintiff's counsel excepted. Errors assigned : 1. The court erred in suspending the plaintiff's execution, and the proceedings thereon, and in directing and trying the issue in this case. 2. The court erred in deciding in this collateral proceeding that the plaintiff had no lien on the lands levied upon by his execution. Deckert, for plaintiff in error, cited 1 Serg. 4* Rawle 538 ; 2 Binn. 221 ; 1 Watts 491 ; 2 Rawle 265 ; 5 Watts 535 ; 7 Watts 25. Greenough and Hoffman, for defendants in error, relied upon the case in 7 Watts 336. The opinion of the Court was delivered by KENNEDY, J. This was a feigned issue, directed by the court below, in order to determine whether a debt, for which David Gerber had obtained a judgment, for the use of Jacob W. Seit- zinger, the plaintiff in error, against the administrators of John Gerber, deceased, was and still continued to be a lien upon cer- tain lands, situate in Northumberland county, which belonged to the said John Gerber at the time of his death, and descended to the defendants in this case as his heirs. It was shown by the evidence that John Gerber, the deceased, died intestate on the 14th of March 1819, seised in fee of the lands in the possession of and claimed by the defendants as his heirs. The debt also, for which the judgment was obtained, appeared to be owing by him at the time of his decease ; consequently, it became a lien imme- diately on his death, on all his lands lying within the state ; and they are liable for the period of seven years to the payment of it ; but no longer, unless a suit were commenced within that time for the recovery of it. This is clearly the law by the Act of the 4th of April 1797, and was so ruled by this court in Kerper v. Hoch, (1 Watts 9 ;) and has been acted upon and recognized as such in other cases since that. But the debt in this case was not sued for until the beginning of 1828, nearly nine years after the death of the debtor, by reason of which delay it ceased to be a lien upon the lands whereof the debtor died seised. Thus the lands belong- ing to the debtor at the time of his death, whether in the posses- sion of his heirs or in the possession of bona fide purchasers from them, ceased to be liable for the payment of the debt. The very question raised here, in this respect, was decided in Greenough v. Patton, (7 Watts 336). There the land belonging to the debtor at the time of his death, was taken in execution, and sold for a debt which he owed, but not sued for until more than seven years had 296 SUPREME COURT [Harrisburg [Scitzinger v. Fisher.] elapsed after his decease. And it was held by this court, that the land was discharged from being liable to the payment of the debt, because it was not sued for within the seven years ; and that the purchaser of the land, at the sale made thereof by the sheriff, took nothing by his purchase. But it is said, that the court below erred in staying the proceeding upon the judgment, after the land was taken in execution under it, so as to prevent the plaintiff from having the land sold by the sheriff. Where it is clear that the judgment still remains unsatisfied, it is certainly not usual for the court, in ordinary cases, to interfere, so as to prevent a sale of land taken in execution, whether the defendant may have an interest in it or not. The court cannot, upon an application for that purpose, inquire into the title to the land, and decide upon it before a sale thereof shall be made. But no ques- tion is made here as to the title of the land taken in execution ; the objection is that no land whatever can be taken in execution upon such a judgment as exists in this case. This is a question which we think the court may settle, where the application is made upon that ground to set aside a seizure of land taken in execution. It may also be expedient and proper to do so, in order that the owners of lands may not be vexed and put to trouble and expense by reason of groundless claims. It does not appear, however, in this case, from all that has been laid before us, in what form the application was made, which occasioned the order of the court for the trial of a feigned issue. Whether it was an application to set the fieri facias and the seizure of the land under it aside, we cannot tell. If such, however, was the application, it would not be right to set aside any thing more than the seizure of the land, because no valid objection has been shown against issuing the fieri facias ; and if personal estate of the intestate could have been found by the sheriff within his bailiwick, to whom it was directed, he might and indeed ought to have taken it in execution under the fieri facias, or if the application was to stay all further pro- ceedings upon the judgment, and the court have done so, it is wrong ; for the plaintiff is entitled, for aught that appears, to have his judgment satisfied out of the personal assets of the deceased debtor, if they can be found. The most that the court should do, in such case, would be to set the seizure of the land aside, and let the plaintiff proceed by execution, to obtain satisfaction of his judgment, out of the personal assets of the estate, if they are to be had. The decision of the court upon the feigned issue, as to the question whether the land taken in execution was liable to the payment of the debt for which it was taken, is affirmed ; and the record is remitted to the court below, that they may make the proper order, for proceeding by execution on the judgment, ac- cording to the direction given above, if not already done. Judgment affirmed. May 1841.] OF PENNSYLVANIA. 297 Foulk against M'Farlane. A fraudulent vendee gains no title to the land by a sheriff's sale, nor interest in it, notwithstanding an innocent creditor may by that very sale obtain a good title to the money. It shall be a good sale as to the creditor, to entitle him to receive the money, and yet no sale as to the fraudulent vendee, to enable him to shelter the land against pursuit. ERROR to the Common Pleas of Cumberland county. This was an action of ejectment for a tract of land by Clemens M'Farlane against Willis Foulk and Henry Burkholder. Both parties claimed under Willis Foulk, who was the original owner of the land. The plaintiff gave in evidence the record of a judgment at the suit of Johnston Moore against Willis Foulk : No. 104, January Term 1813, regularly revived up to the 12th of April 1837. Fieri facias, No. 16, April Term 1839, levied on the land in dispute, which was sold on a venditioni exponas to August Term 1839, to Clemens M'Farlane, who received the sheriff's deed therefor. The defendants, then, to maintain the issue on their part, gave in evidence a judgment at the suit of the Middletown Bank, No. 120, April Term 1834; an alias fieri facias No. 70, August Term 1836, levied on the land in dispute : venditioni exponas, No. 27, April Term 1837; upon which the land was sold to Henry L. Burkholder, the defendant, who received the sheriff's deed there- for. The proceeds of this sale, amounting to $335, were brought into court for appropriation ; and after paying a prior judgment, $200 was appropriated to Johnston Moore's judgment, which was paid over to his attorney, leaving a balance of the judgment still due and unpaid. To rebut the effect of this testimony, the plaintiff then called witnesses to prove that the first sale of the property to Henry L. Burkholder, was effected by reason of a fraudulent conspiracy between him and Willis Foulk, to prevent purchasers from attend- ing the sale, or bidding for the property ; and before the plaintiffs had concluded their testimony on this point, the defendants' coun- sel proposed to suspend any further inquiry on this point, and rest the case upon the following ground : " that Johnston Moore, the plaintiff in the judgment on which the second sale was made, is estopped from denying the validity of the first sale, on the ground that he claimed and received a large proportion of his judgment out of the proceeds of the sale to Burkholder. That Johnston Moore, having repugnant rights, his election to claim one, estops i. 38 SUPREME COURT [Harrisburg [Foulk v. M'Farlane.] him from proceeding in the other, and that the purchaser under the last sale is equally estopped with him." The Court below thus answered the point : HEPBURN, President. " If the whole of these proceedings had been fair and honest, this would undoubtedly be the case ; but if they were fraudulent, and consequently void, they were void as to everybody not implicated in it : and Johnston Moore, as well as any one else, had a right to treat it as such, and to proceed against the property in the hands of the defendants. The defend- ants' point is answered in the negative." Biddle and Reed, for plaintiffs in error, contended that the party to the judgment, who took the proceeds of the sale out of court, was estopped from denying the validity of the sale. Co. Lit. 352, a; 17 Serg. fy Rawle 364; 3 Whart. 422: 9 Serg. <$ Rawk 430; 7 Serg. fy Rawle 63; 8 Watts 280; 1 Rawle 171 ; 18 Johns. 527 ; 12 Serg. $ Rawle 459. Watts, for defendant in error. The general principle, as stated by the plaintiff in error, is indisputable, but not at all applicable to the facts of this case. Here the fraudulent contrivance between the two defendants was conceded on the trial ; the title, therefore, which they thereby acquired, is absolutely void, and could not be confirmed. The case of Gilbert v. Hoffman (2 Watts 66) is full to the point. The opinion of the Court was delivered by SERGEANT, J. The appellant contends that the first sheriff's sale, though effected by the collusion of the purchaser with the defendant, was only voidable and not absolutely null and void, and that Johnston Moore, having elected as judgment cred- itor, to receive his proportion of the proceeds of sale, is thereby estopped from treating that sale as void, and proceeding against the land in the hands of the purchaser. Whether the sale is to be termed absolutely null and void to .all intents and purposes, or only void as respects Moore, in case he determines so to treat it, can be of little importance in the ascer- tainment of the rights of the parties. In either case, it ceases to be an obstacle in his way. The real question is, whether he has, by the receipt of the money, precluded himself from asserting his claim against the land. It must be admitted, that had Moore been in any way connected with the alleged fraud, it would have barred him. That, however, is not pretended : he received the money under an appropriation by law to his use, innocently, and even ignorantly of the transaction, so far as appears. There could be no mala fides in his thus receiving the money. He never could be compelled to refund it. It was awarded to him by the acts of others, over which he exercised no control. I do not think, there- May 1841.] OF PENNSYLVANIA. 299 [Foulk v. M'Farlane.l fore, his receiving the money, under these circumstances, can be considered as an election, or set up as an estoppel against follow- ing the land into the hands of a fraudulent vendee for the purpose of realizing the balances due to him, though, as in Stroble v. Smith, (8 Walts 280) it might cure irregularity in the proceedings where there is no fraud. The fraudulent vendee gains no title to the land by the sale, nor interest in it, notwithstanding an innocent creditor may, by that very sale, obtain a good title to the money. It shall be a good sale as to the creditor, to entitle him to receive the money, and yet no sale as to the fraudulent vendee, to enable him to shelter the land against pursuit. Nor would the policy of the law, which abhors fraud, be promoted by permitting such a defence to the purchaser. All the avenues that facilitate the de- tection and overthrow of fraud, should be kept open and free from the interposition of bars and estoppels. The doctrine in Gilbert v. Hoffman, (2 Watts 66) goes to the full extent of the present case, in deciding, that a sale effected by actual fraud is as no sale, and can produce no legal effect on innocent persons. Judgment affirmed. M'Cleary's Appeal. An amicable scire facias post annum el diem, in order to its validity, must be docketed : it is not sufficient that it be filed among the papers of the original judgment, and noted upon the docket entry of it. APPEAL from the decree of the Common Pleas of Mams coun- ty, distributing the proceeds of the sale of the real estate of Jo- seph M'Cleary. The real estate of Joseph M'Cleary was sold upon a judgment and execution at the suit of Blythe and Johnston. It was admitted, when this matter was submitted to the court, that the plaintiffs were entitled to the moneys raised on their exe- cution, unless the judgment of John M'Cleary v. Joseph M'Clea- ry, of August Term 1832, No. 65, had been revived so as to con- tinue its original lien. Intending to revive that judgment, the parties to it made and delivered to the prothonotary of the court a paper, of which the following is a copy, viz : y / In the Court of Common Pleas of Adams Joseph M'Cleary. ) count y' of Au ust Term ' 1832 ' No> 66 ' 300 SUPREME COURT [Harrisburg [M'Cleary's Appeal.] Enter amicable scire facias to revive judgment post annum et diem in this case. JOSEPH M'CLEARY, JOHN M'CLEARY. To B. GILBERT, Prothonotary of Adams county. I agree to the above amicable scire facias to revive judgment, and confess judgment on the same , that being the debt and interest, and authorize and empower the prothonotary of Ad- ams county to enter the same against in favour of the plaintiff, which is to have the same effect in law as if a scire fa- cias had issued out of said court for that purpose, hereby releas- ing all errors. Witness my hand and seal this 24th day of April 1837. (Signed) JOSEPH M'CLEARY. [SEAL]. Witness. WM. J. SEABROOKS, and JACOB HOKE. On receiving the paper, the prothonotary made thereon the foU lowing endorsement: "No. 128, January Term, 1837, John M'Cleary ?;. Joseph M'Cleary, amicable scire facias to revive judgment, entered 24th April *1837." Below the record of the original judgment the prothonotary made the following entry on the docket : " Amicable scire facias to January Term, 1837, No. 128." There was no suit docketed, no judgment entered by the prothonotary, nor were there any fur- ther proceedings had whatever. The court below, (Durkee, President) was of opinion that the judgment of John M'Cleary was not revived according to law, and that the lien was gone, and therefore decreed the money to the judgment of Blythe and Johnston. Stevens, for plaintiff in error, cited 17 Serg. fy Rawle 123. M'Clean and Reed, for defendant in error, cited 8 Serg. fy Rawle 378; 11 Serg. fy Rawle 94; 1 Penn. Rep. 71 ; 3 Rawle 13. PER CURIAM. Papers in the cases of a prothonotary's office, are not notice to a purchaser, unless reference is made to them on the docket ; and they are of course not notice to judgment cred- itors who are put by the statute which limits the lien of judg- ments on the same footing. Here, the reference from the entry of the original action to the imaginary entry of an amicable scire facias, which was in fact not docketed, could lead to nothing, beside, the record notice contemplated by the act, ought to ap- pear among the docket entries of the preceding five years ; for to keep the minutes of each consecutive scire facias, or act of revi- val, as a part of the original suit, is not sufficient, because a pur- May 1841.] OF PENNSYLVANIA. 301 [M'Cleary's Appeal.] chaser would not be so apt to find them there as in their proper place. That the agreement for an amicable scire facias and judgment is not itself notice, is a consequence of Black v. Dobson, (11 Serg. 4* Rawle 94) in which a cesset which had not been placed upon the docket, was not allowed to hinder the limitation of the lien from beginning to run. Decree affirmed. Harris against Ligget. He who has performed a special agreement to do a particular thing, may re- cover the stipulated price of it by an action of indebitatus assumpsit, and use the agreement as evidence of the amount of compensation due. But if there be but part performance by the plaintiff of his part of the contract, and he may be ex- cused from an entire performance by the act or agreement of the defendant, the action to recover compensation must be on the special agreement, with an aver- ment of the plaintiff's readiness to perform, as an excuse for the want of actual performance. The forms of pleading must be adapted to the cause of action with the same strictness, whether the cause originate by writ, or be brought into court by ap- peal from the judgment of a justice of the peace. ERROR to the Common Pleas of Centre county. Absalom Ligget against Harris, Rorer & Co. This action originated before a justice, from whose judgment it was brought into court by appeal, where the plaintiff treated it as an action 01 assumpsit, and in his declaration, containing three counts, charged the defendants with work, labour, care and diligence, with a quantum meruit, and with goods sold and delivered. To sup- port his action, the plaintiff offered in evidence an agreement in writing between him and the defendants, dated the 19th of Feb- ruary 1835. This was objected to by the defendants on the ground that it did not go to support the plaintiff's cause of action: but the court overruled the objection, and the agreement was read as follows : " It is hereby agreed between Harris, Rorer & Co., of the one part, and Absalom Ligget, Jr., of the other part, all of Howard township, Centre county, Pa., that the said Absalom is, for the consideration herein mentioned, to haul the wood to be coaled the next season in the job down the mountain, (the management of which is contracted for by Philip Shaffer) in manner as follows, viz : the hauling to commence as soon in the spring as the hearth shall be ready, and to continue as long as coaling can advan- tageously be done; the wood to be delivered in the hearths in I. 2A 302 SUPREME COURT [Harrisburg [Harris v. Liggct] such time and quantity as to cause no delay in coaling. Also, the wood distant from the hearths to be hauled with that nigh to them, as if his undertaking was to haul all the wood intended for the hearths. " In consideration of the performance of the above agreement, said Harris, Rorer & Co. are to pay to said Absalom at the rate of twelve and a half cents per cord, and to find a set of sled soals; said Absalom to have the refusal of the hauling of what wood is left in said job at the above rate the succeeding season. Said Absalom also agrees to furnish at the pits what leaves may be required in coaling said wood. For which said Harris, Rorer & Co. agree to pay nim at the rate of six cents per cord for each and every cord so leafed." The plaintiff then gave in evidence his book of original entries, showing the number of cords hauled and leaves furnished in pur- suance of the contract. The defendants gave evidence of payments on account made to the plaintiff, and then called several witnesses to prove that the plaintiff had not performed his contract, but left nine hundred cords of wood unhauled, and that the most difficult part of it. To rebut this, the plaintiff also gave some evidence tending to show that he was excused by the defendants' manager from any further performance of the contract. As to this part of the case, the testimony was contradictory. The questions presented to this court arose out of the charge of the court to the jury, which was as follows : It is objected by the counsel of the defendants that the action should have been a special action on the case founded on the agreement ; and he contends that the plaintiff cannot recover on indebitatus counts, and the court are requested so to charge you. As a general rule, it is unquestionably true that where there is an express contract, the plaintiff cannot resort to an implied one. Yet indebitatus assumpsit will lie to recover the stipulated price due on a special contract not under seal when the contract has been completely executed, and it is not in such case necessary to declare on the special agreement. Here the plaintiff claims to have completely executed his contract, or to have been excused from further performance by the defendants and their agents ; but without troubling you to inquire whether the evidence places the plaintiff in a situation to claim the benefit of the exception to the general rule which I have stated, it is sufficient to say, that this case having originated before a justice of the peace, and coming into this court by an appeal from his judgment, we will try here the same cause of action on its merits which he tried, with no more respect to the form of proceedings than is necessary to come at the merits of the controversy. It is not disputed that the cause of action before the justice was the same which was set up here. May 1841.] OF PENNSYLVANIA. 303 [Harris v, Ligget.] and if there be nothing in the case, other than this objection to the plaintiff's declaration, he will be entitled to your verdict in com- pensation of his labour. The plaintiff's case rests on his book of original entries, which supported by his oath is evidence of his account. The defend- ants on their part insist : 1st, That they have paid the plaintiff in moneys and merchan- dize $261.34, which they say extinguishes the plaintiff's claim. And, 2dly, That the plaintiff having entered on the work under the agreement given in evidence by himself, so failed to perform it, and performed his work, so far as he did it at all, in so negli- gent and unfaithful a manner, that damages have accrued to them to an amount to constitute a full defence against his action. As to the damages alleged to have been sustained by the defend- ants : It is a principle of law that damages arising out of the con- tract on which the plaintiff sues may be given in evidence to de- feat his action. This action is not in form on the article of agree- ment of the 19th of February 1835, yet the case as it is presented in the evidence depends essentially on that agreement, and if the defendants have sustained damages by reason of the neglect of the plaintiff to perform fully that agreement, or by his perform- ance of it in an improper manner, you will ascertain the amount of such damages, and for so much they are a defence to the plain- tiff's action. Did the plaintiff fully and faithfully perform his undertakings in that agreement ? If he did not, was he excused from further performance by the acts and declarations of the defendants or their authorized agents ? These are questions for you under all the evidence in the case. If there were default in the plaintiff's performance, what amount of damages have the defendants sustained thereby ? this also is a question for your ascertainment. And if you are satisfied from the evidence that the damages of the defendants are equal to the balance which you may find due to the plaintiff in comparison of the accounts of the parties, then they extinguish that balance, and your verdict should be generally for the defendants ; but if you believe that the defendants have sustained no damage at the hands of the plaintiff in the execution of the written agreement, or if on allowance of any, you find a balance still remains due to the plaintiff, your verdict should be in his favour for the amount that may appear due him. The counsel for the defendants excepted to this charge. Valentine, for plaintiffs in error, contended that the court erred in permitting the plaintiff to recover in this form of action, for a part performance of an entire contract, and cited 13 Johns. 94 ; 6 T. R. 324; 3 Penn. Rep. 445; 2 Penn. Rep. 454, 461 ; Finch 304 SUPREME COURT [Harrisburg [Harris v. Ligget] 180; 3 Vin. Ab. 4, 5, Title "Apportionment"; I Doug. 23; Cowp. 818; Cro. Eliz. 651. M' Mister, for defendant in error, argued that the whole evi- dence written and parol did not form an entire contract; and that the plaintiff was relieved from the further performance by the consent of the defendants ; he was therefore entitled to reco- ver in an action of indebitatus assumpsit for the work he did do, and give in evidence the written agreement as inducement and the evidence of the value of his labour. 3 Watts 332 ; 10 Johns. 208; 1 Wih. 117; 7 Cranch 299; 5 Whart. 405. The opinion of the Court was delivered by GIBSON, C. J. There is but one exception to the rule which excludes the implication of a contract where there is an express one, and even that is an anomaly. Expression facit cessare taciturn, is the maxim. Yet it is certainly established by the force of pre- cedent, that where the plaintiff has performed a special agreement to do a particular thing, he may recover the stipulated price of it by an action of indebitatus assumpsit, and use the agreement as evidence of the amount of compensation due. So this court held the law to be in Ketty v. Foster, (2 Binn. 4) on the authority of Alcorn v. Westbrooke (1 Wils. 117), Brooke v. White (4 Bos. fy Pul. 330), and of Mr Justice Buller (-/V*. P. 139) who cites Gordon v. Martin (Fitzg. 302) and one or two unreported JVm Prius cases. " If the plain- tiff," says he, " prove a special agreement and the work done, but not pursuant to such agreement, ne shall recover on the quantum meruit, for otherwise he would not be able to recover at all : as if on a quantum meruit for work and labour, the plaintiff proved he had built a house for the defendant, though the defendant proved there was a special agreement about the building of it, viz., that it should be built in such a time and in such a manner, and that the plaintiff had not performed the agreement, yet the plaintiff would recover on the quantum meruit, though doubtless such proof on the part of the defendant might be proper to lessen the quantum of the damages." It is settled, therefore, that the price of a service fully performed may be recovered in indebitatus assumpsit; and the reason seems to be that performance of a con- tract creates a moral duty to compensate it, which is independent of the obligation of the contract, and which is supposed to be a consideration to raise an independent promise by implication. Yet still the duty is only a moral one ; and it has long been held that a moral obligation is an insufficient ground of action where a legal obligation has not been added to it ; for certainly, perform- ance of a specialty contract, is not a consideration to raise such a promise ; and if it be raised at all by the- naked obligation which springs from performance, it is difficult to see why it should not be raised as an independent promise, as well in the one case as in May 1841.] OF PENNSYLVANIA. 305 [Harris v. Ligget.] the other. But the difficulty in what Mr Justice Buller says, is to understand how want of due performance at the time and in the manner stipulated, shall entitle the plaintiff to recover in pro- portion to the service rendered. Where every part of the work has been actually but badly done, the law allows him to do so perhaps because indebitatus assumpsit is an equitable action ; and as time is usually not of the essence of a contract, want of punc- tuality in performance, as well as imperfection in the manner of it, admits of compensation. There certainly is a difference be- tween defective and deficient performance, or, to use another word, no performance at all ; and therefore it is that a tailor, who has cloth delivered to him for a coat, would not be allowed the price of his work, were he to make a different garment of it, though of equal value. But Justice Buller admits, that to make performance the consideration of an implied promise, the work must be done ; and with that agrees Jllgeo v. JlJgeo (10 Serg. fy Rawle 235) in which the plaintiff was not allowed to recover in indebi- -tatus assumpsit for performance of part of his agreement, though the defendant had prevented him from performing the rest of it. It was held that though prevention is equivalent to performance in an action on the contract, it is, nevertheless, not performance itself; and that, as the law implies a promise of compensation from nothing less, the proper remedy was an action on the special agreement, with an averment of the plaintiff's tender of perform- ance, or readiness to perform, as an excuse for the want of actual performance. But the present is not so much a question of pleading as of title. Can the plaintiff recover in any form of action ? He can recover, if at all, only in an action founded in contract; but what contract ? There certainly was no aggregatio mentium, or mutual consent, which is of the essence of a contract, that the one might do, and the other should pay for, less than the whole which was contracted to be done. If, then, it will not be pretended that he could recover on the express contract, unless he had performed or was ready to perform every part of it, can it be pretended that the law will imply from part performance a promise for part com- pensation in the teeth of the fact ? There is no reported instance of such an implication ; and the law is too politic and just, as well as too regardful of the inducements to good faith, to sanc- tion it. The terms of a contract are private laws, which the parties to it prescribe for themselves, to fix the measure of their duties and responsibilities ; and they agree to be bound by them and no others. But a judge would bind them differently, did he enforce between them duties of imperfect obligation, and support an implication of terms to which they did not accede. It is the boast of a freeman that he is to be bound only by his own consent ; and if there is a power to bind him beyond it, whether exercised by an arbitrator, a judge, a jury, or a populace, it is a despotic i. 39 2 A * 306 SUPREME COURT [Harruburg [Harris v. Ligget] one. Such is the power that would force a man to reward an unsought service, on the ground of natural justice; but it has long been settled that natural justice alone, or, as it has been more accurately called, moral obligation from benefit conferred, is not a foundation for the erection of a legal promise. It is diffi- cult, however, to imagine the existence of a moral obligation to compensate the labour of a man who has deliberately cut him- self loose from a part of his bargain, and that too the hardest part of it. On what principle of law or justice such a man is entitled to be paid for performance of the part of the bargain most beneficial to him, and paid at the contract rate of perform- ance of the whole, I am unable to discover. If the work done was under his bargain, let his claim to compensation for it be de- termined by the terms of his bargain ; if it was not, then it was done under no contract whatever, and it is no more than a service done without request. In M'Dowell v. Ingersoll (5 Serg. fy Rawle 101) a surveyor, who had laid a number of company warrants together, without running and marking the intermediate lines, was not allowed to recover on a quantum meruit ; and in a previous discussion, when the cause was before the court as Woods v. In- gersoll (1 Binn. 151) Mr Justice Brackenridge remarked that he could form no idea of a quantum meruit for half services. In that case, the services prescribed by the law had tacitly entered into the contract of hiring as part of its terms ; and it is in principle the case before us. The judge therefore erred in the first place, in treating the form of the action as immaterial ; for there is no more reason why the plaintiff should not declare on a special con- tract, when the cause has come into court by appeal, than there is when it has come in by writ : and he also erred in directing that, damages for want of entire performance being deducted from the plaintiffs claim, he might recover the residue of it. There was, however, no error in admitting the special agreement in evi- dence that could prejudice the defendants, for it was the founda- tion of their defence. Judgment reversed, and a venire facias de now awarded. May 1841.] OF PENNSYLVANIA. 307 Snevily against Johnston. A note with its blank endorsements and guaranties, in the absence of proof to the contrary, forms an entire transaction ; hence, in an action upon a guaranty endorsed upon a negotiable note, it is not necessary to prove any other consider- ation for it, than what appears upon the paper. ERROR to the Common Pleas of Dauphin county. John Johnston, for the use of Jacob Rehum, against John Sne- vily. Appeal from the judgment of a justice. Plaintiff stated that he sued to recover the sum of $93.05, due on a promissory note, drawn by Mentor Perdue, dated December 21st, 1838; whereby said Perdue promised to pay to the order of John Johnston, sixty days after date, the sum of $93.05, which said note, the said John Snevily endorsed and guaranteed the pay- ment of to said John Johnston, by his written agreement, made the day and year aforesaid, in the following words, viz. : " I guarantee the within note to John Johnston. (Signed) JOHN SNEVILY." That on the day said note fell due, a demand was made for payment on Mr Perdue, the drawer, who refused to pay, and notice thereof was, on the same day, given to said John Snevily, and the note was then duly protested ; of which notice was also given to said Snevily. In consideration thereof, he, the said Snevily, then and there became liable to pay the amount of said note, when he should be thereunto afterwards required. Wherefore the said John Snevily became liable to pay the said sum of $93.05, with interest from 22d of February 1839, and costs of protest, $1.37^. Plaintiff gave in evidence the note and endorsement : " $93 T JJ Mount Holly Furnace, Dec. 21st, 1838. Sixty days after date I promise to pay to the order of John Johnston, ninety-three dollars and T $ T , without defalcation, for value received. (Signed) MENTOR PERDUE." (Endorsed on back,) " I guarantee the within note to John Johnston. (Signed) JOHN SNEVILY." (Further endorsed,) " JOHN JOHNSTON." Protested at Carlisle, and demand made, 22d of February 1839. John M. Woodburn sworn. I knew Mentor Perdue, at Mount Holly Iron Works, Cumberland county* in 1837 and 1838. In the fatter part of the year 1838, his property was sold out by 308 SUPREME COURT [Harrisburg [Snevily v. Johnston.} the sheriff of Cumberland county. I understood him to be insol- vent. He went from there to Lancaster county. He carried on Mount Holly Iron Works. He was insolvent in January 1839. I do not know where he was after he left Cumberland county. I understood him to have a great many debts. He left Cumberland in the winter of 1838 or '9 ; I do not know that he had left before February. The court was requested to charge the jury on the following points : 1. That said defendant not being a party to the note, it was therefore necessary and material to plaintiff's right of recovery to aver and prove a consideration for his said guaranty. 2. That the said defendant not being a party to the said note, and being merely a guarantor, it was incumbent on the plaintiff to resort for recovery of the amount thereof, in the first place, and before proceeding against said defendant, to the drawer of it, or else to aver and prove, and at all events to prove the insolvency of said drawer, at the time said note fell due, as an excuse and reason for not proceeding against him. 3. That the contract of guaranty made by defendant, on which this suit is founded, was specially limited to John Johnston, with whom it was made, and cannot be enforced in favour of John- ston's assignee, the present plaintiff. 4. The statement does not contain the sufficient and necessary averments of a consideration to the defendant for his undertaking, and of the insolvency of the drawer of the note. PARSONS, President. 1. The court answer the first point in the negative, and say that the law is not therein correctly stated; that by the guaranty being made in writing, on the part of the defend- ant, to pay to the plaintiff the amount of the note, it is a new un- dertaking; a consideration is presumed sufficient to authorize the plaintiff to recover ; the act of thus writing a guaranty, imports a consideration, and casts the burden of proof on the defendant, to show a want of consideration; this objection cannot so far pre- vail as to defeat the plaintiff's right to recover, under the facts now disclosed in the cause. 2. In answer to the second point thus submitted, the court in- struct the jury, if they believe that Perdue was insolvent in Feb- ruary of 1839, and also when this suit was brought, this objection cannot prevail ; and the plaintiff can recover if the maker was in- solvent and unable to pay the note. 3. To the third point the court say that this action is now brought in the name of Johnston, for the use of Rehum ; and the court refuse to give the direction prayed for. 4. In answer to the fourth point thus submitted, the court say that the statement or narr. is sufficient to authorize the plain- tiff to recover, as the case is now presented, and under the plead- May 1841.] OF PENNSYLVANIA. 309 [Snevily v. Johnston.] ings, if the jury should find the facts in his favour, and therefore refuse to answer this point in favour of the defendant. The counsel for the defendant excepted to the charge of the court. Assignment of errors : 1 . The court erred in their answers to defendant's points. 2. In not arresting the judgment. Rawn, for plaintiff in error. It is neither averred nor proved that there was any consideration for the guaranty. It does not of itself import a consideration, so as to cast upon the defendant the burthen of proving a negative. The defendant was not a party to the note, but a stranger to it and its consideration; which is a different case entirely from that where the guaranty is by a party to the instrument. 2 Watts 128 ; 4 Watts 448 ; 2 Halst. 116; 3 Penn. Rep. 282; 9 Watts 433; 2 Stark. Ev. 370; 1 Ohio 498 ; 9 Leigh 153 ; 6 Leigh 97 ; 3 Kent's Com. 85 ; 4 Watts 433. M'Cormick, contra. The plaintiff's statement sets out the note and guaranty to be of the same date ; to be one transaction, and to have been given, in the language of the instrument itself, " for value received." This statement is also in accordance with the legal presumption, in the absence of proof, that all was the same transaction, done at the same time. 8 Johns. 29 ; 9 Watts 433 ; 3 Kent's Com. 122; 11 Johns. 221; 13 Johns. 175; 5 Mass. 545; 11 Mass. 436. The same strictness is not required in a statement as in a declaration. 6 Serg. < Rawle 53. The opinion of the Court was delivered by ROGERS, J. Itwould.be useless to discuss the errors which have been filed, as there is one principle which is decisive of this case. Where the guaranty or promise, though collateral to the principal contract, is made at the same time with the principal contract, and becomes an essential ground of the credit given to the principal debtor, the whole is one original and entire transac- tion, and the consideration extends and sustains the promise of the principal debtor, and also of the guarantor. No other con- sideration need be shown, than that for the original agreement upon which the whole debt rested. This principle was first de- cided in Leonard v. Vredenburgh, (8 Johns. 29) ; since recognized in 11 Johns. 221, 13 Johns. 175; and by Justice Story, in If Wolf v. Rabaud, (1 Peters's Rep. 501.) The only difficulty is to show that the guaranty was made at the same time with the principal contract. The note is given by Perdue, and made payable to the order of Johnston. On the back of the note is written, " I guarantee the within note to John Johnston" ; this is signed by John Snevily. The note is also endorsed by John Johnston. In 310 SUPREME COURT [Harrisburg [Snevily v. Johnston.] the want of all direct proof of the consideration paid to Snevily, it is difficult to understand the transaction, except on the suppo- sition that it was an entire contract : and that Snevily, for some reason which has not been explained, as between him and Perdue and Johnston, undertook to guarantee the payment of the note. There is no date to the guaranty ; the writing, therefore, im- ported on the face of it, (as in Leonard v. Vredenburgh) an original and entire transaction ; for a guaranty of a contract implies, ex vi termini, that it was a concurrent act, and part of the original agreement. Judgment affirmed. Bratton against Mitchell. An assessment of a tax by some proper authority, is essential to the validity of a sale of unseated land by the treasurer. ERROR to the Common Pleas of Mifflin county. George Mitchell against Charles Bratton and James Bratton. This was an action of ejectment for a tract of land, in which the plaintiff gave in evidence : 20th of November 1793, warrant to Frederick Lazarus, 400 acres adjoining land this day granted to William Cook, Deny township. 15th of May 1794, survey 390 acres 154 perches. Offered unseated land book, sale book. Charles Ritz, Esq., sworn. I am the county treasurer; these are office books. Offered the unseated list of Wayne township, Mifflin county, 1820, Frederick Lazarus 390 acres 154 perches, tax 34 cents. Charles Ritz. This is the book on which the unseated taxes are paid. Samuel P. Lilley. I am clerk to the commissioners ; I have ex- amined carefully, and not able to find the transcript returned for Wayne township for 1820. It is lost and cannot be found, Dr Joseph B. Ard sworn. I was treasurer in 1822, and made the entry in this book. This entry of Frederick Lazarus, I don't recollect what I made it from ; I must have had something to make it from, but I cannot recollect. It is an office book ; it is the book in which I entered the taxes on the unseated lands when I was treasurer. 1821. From same book ; unseated land, Wayne township, Fred- erick Lazarus 390, 134 ; tax 28. May 1841.] OF PENNSYLVANIA. 311 [Bratton v. Mitchell] Dr J. B. Ard. This also is my handwriting. Defendants objected to the book. The book is not properly kept without title and without heading ; begins with sale ; does not ap- pear a list kept for any purpose whatever ; appears only a private memorandum book, kept by Dr Ard, the treasurer, for his conve- nience ; does not appear to have any connexion with the record in the commissioners' office. Court. These books have been admitted and held as evidence. This very point was decided by the Supreme Court in Guyer v. Harris. The objection was overruled, and defendants' counsel excepted. Book read. Sale book before mentioned and proved by Mr Ritz. Wayne township, sale in 1822. Frederick Lazarus, 390, 154 1820 and 1821. Tax, in all, 68 cents. Sold 20th August 1822, to Anthony Elton, for $3.70. Tax ........ 1.68 Add ........ 1.50 Sale ........ 24th December 1822, Deed Poll, Jos. B. Ard, treasurer, to Antho- ny Elton, acknowledged on the 21st January 1823, in open court. The only question decided in the cause was, whether the fore- going proof furnished such evidence of assessment as authorized a sale by the treasurer. J. Fisher, for plaintiffs in error, argued that there was no assess- ment by any one authorized for that purpose ; and the books should not have been admitted in evidence. Banks and Benedict, contra, cited 2 Penn. Rep. 297 ; 5 Watts 287 ; 7 Serg. <$- Rawle 386; 13 Serg. fy Rawle 360; 3 Serg. 4* Rawle 298. The opinion of the Court was delivered by HUSTON, J. George Mitchell was the plaintiff in the Common Pleas, and gave in evidence a warrant to Frederick Lazarus, da- ted 20th of November 1793, for 400 acres; a survey on the 15th of May 1794, by James Harris, D. S., and offered unseated land book, sale book ; and called Charles Ritz sworn, i am the county treasurer. These are office books. Offered the unseated list of Wayne township, Mifflin county. 1820, Frederick Lazarus 390 acres 154 perches, tax 34 cents. Charles Ritz again. This is the book on which the unseated taxes are paid. Samuel P. Lilley. I am clerk of the commissioners. I have 312 SUPREME COURT [Harrisbw-g [Bratton v. Mitchell.] examined carefully, and not able to find the transcript returned for Wayne township for 1820. It is lost and cannot be found. Dr Joseph B. Ard sworn. I was treasurer in 1822, and made the entry in this book. The entry of Frederick Lazarus, I don't recollect what I made it from ; I must have had something to make it from, but I can't recollect. It is an office book ; it is the book in which I entered the taxes on unseated lands when I was treasurer. 1821, same book; unseated lands, Wayne township, Frederick Lazarus 390 acres 134 perches ; tax 28 cents. Dr J. B. Ard again. This is also my handwriting. Defendants objected. The book is without heading or title ; be- gins with a sale ; does not appear to have been made or kept for any purpose, except as a private memorandum book kept by Dr Ard for his own convenience. Does not appear to have any rela- tion to commissioners' office, or assessment of taxes. Court. These books have been admitted and held as evidence. The very point was decided by the Supreme Court in Guyer v. Harris. The book was identified by the judge writing his name on the inner side of the cover, (but it was not produced to this court.) Book read. Wayne township, sale 1822. Frederick Lazarus, 390 acres 154 perches 1820 and 1821. Tax, in all, 68 cents. Sold 20th of August 1822, to Anthony Elton, for 03.70. Tax ........ 1.68 Add ........ 1.50 Sale ........ All this was objected to but admitted ; perhaps in a case of this kind it would not be easy to ascertain whether this, as part of the proceedings to affect a treasurer's sale, might be admitted, there being something to follow it, which being connected with it, might make the whole good. But if the whole had been stated as all the evidence of assessment and sale, it might safely have been re- jected ; it was, however, admitted, and the court told the jury it vested the title of the Frederick Lazarus tract in the purchaser, and this on the authority of Guyer v. Harris. We have more than once had occasion to observe that the ex- pressions of a judge are used with reference to the facts in the case trying ; and that to consider them as universally true, when applied to every possible state of facts, " is unjust to the judge who used them, and calculated to mislead the court to which they are cited." In Stewart v. Shoenfelt (13 Serg. $ Rawle 360) Huntingdon township had been divided, and Porter township was the name given to part of it. The division line passed in part over a moun- tainous and unseated country, and was not exactly ascertained for May 1841.] OF PENNSYLVANIA. 313 [Bratton v. Mitchell] five or six years. A tract, surveyed in the name of George Se- vitz, was assessed, advertised, and sold as being in one township, and after the sale, when the line was run, found to be in the other. The positions laid down were, that although irregularity in as- sessment or otherwise would be cured, yet the land must be va- cant and a tax must have been assessed. The Act of 1804, sec. 1, directs the return to state the township, if known, and in that case the mistake of the township was considered only an irregu- larity. In Hubley v. Keyser, (2 Penn. Rep. 496) the commissioners' books showed an assessment, and the assessor (whose return was lost) proved distinctly that he valued the tract in question, and returned it as unseated to the commissioners. The sale was held valid. In M'Call v. Lorimer, (4 Watts 355) a new case was presented. The assessor valued 400 acres as seated by Lorimer, and so re- turned it to the commissioners, who put it in the duplicate to the collector. Lorimer sold and removed from the township ; this in 1814; and the collector was exonerated as to his tax. The as- sessor kept a copy of his assessment list, and on seeing Lorimer. was told he owned only half the tract, and the other half was un- seated, and belonged to Nicholas Day; but he never informed the commissioners of this, and never made an alteration in the list returned to them, though he did make an alteration correspond- ing to Lorimer's statement in his own copy. In 1816, somehow, and it did not appear why, the treasurer sold 200 acres of this tract as unseated, the property of N. Day. M'Call, for whom Nicholas Day had been the agent, brought an ejectment against the purchaser, and the sale was held invalid. That case goes distinctly on the ground of there having been no assessment of the 200 acres as unseated. The assessor values and returns to the commissioners, who apportion the sum to be raised in the township on the several tracts, in fact, who perform the most im- portant part of the assessing. The list returned to them,, and their action on it, is the assessment. The private copy of the as- sessed list kept by the assessor is not known to the law, and it ought not to have been received ; or if received, could not con- trol the official documents in the commissioners' office. See also the case of Morion v. Harris, (9 Watts 322.) The taxes on all lands must be paid or collected by sale. It would be unjust to collect from part of the community, and let others escape ; but if the assessor overlooks an inhabitant or a tract of unseated land, and the year passes and no tax is assessed. and there is no action by the commissioners as to that man, or that property, neither the assessor nor any other person can le- gally seize the person or sell the property. The treasurer has no colour of right to do so; he has nothing to do with assessing a tax in any of its stages ; he receives the tax on improved land i. 40 2e 314 SUPREME COURT [Harrisburg [Bratton v. Mitchell.] from the collectors, and once in two years sells unseated land on which the taxes are unpaid ; but we look in vain for any authority to sell lands on which no taxes have been assessed. Neither the law nor the commissioners' warrant gives him any such authority, nor colour of authority. The book exhibited was not produced, but from the statement made by the treasurer of all the tracts which he sold, or at most of all the tracts he advertised, he does not know from what he made it. I cannot believe there is any county in which the commissioners have not a book into which the lists of unseated lands are copied, and in which the taxes as- sessed on each tract are entered. Such a book is not made out each year, but inserting the names in the first column, the num- ber of acres in the second, and ruling of separate columns, thus: FREDERICK LAZARUS. | 390 154*' | 1830 | 1831 | 1832 | 1833 and so on for each successive year the tax for each year when assessed is inserted in the proper column, and this mode, which I would say is common, is certain, and will show the amount as- sessed each year on each tract. But this is always a commis- sioners' book, made by their clerk, and belongs to their office. The sales are sometimes entered into it ; perhaps it may be for a time, in some instances, lent to a lazy treasurer in which to enter his sales ; but this, if ever, is rarely done, and ought never to be done. There is, then, in this case, no evidence that any tax was ever assessed on this tract by anybody who had any right to assess. It does not come within the words of the Act, " no irregularity in the assessment or in the process," which supposes some assess- ment, or some process ; that is, some act of the commissioners and assessor ; though it dispenses with proof that at the trial the pur- chaser should show all to be regular. There were other points in the case, e. g., there was proof of improvements long ago within the lines of the survey of F. Lazarus, but it was alleged these were made under a title called Baird's. If the land is worth any thing, before the next trial, if there be one, the defendants may take a surveyor, and in the presence of those who know those im- provements, and when they were made, run the lines of Baird's survey, and leave no doubt as to whether part of the Lazarus tract was improved before the treasurer's sale. Judgment reversed, and a venire de novo awarded. jWayl841.] OF PENNSYLVANIA. 315 York County against Small. An action upon a bond given by the commissioners of York county for the redemption of small notes may be removed from the jurisdiction of the Common Pleas of York county to that of Adams county, under the provisions of the Act of 6th June 1839. A county commissioner is elected for three years, and until a successor be elected, and his official acts are binding upon the county although done after the lapse of three years, if his successor be not elected and sworn into office. It is not a good defence to the payment of a bond, that it was given to redeem an illegal issue of small notes by the obligor. ERROR to the Common Pleas of Mams county. This was an action of debt commenced in the Common Pleas of York county by Philip A. Small and Samuel Small, against York county. It is founded upon a bond alleged to have been executed by the commissioners of York county, on the 15th day of October 1838, in favour of Philip A. Small and Samuel Small, in the sum of $3420, conditioned for the payment of $1710, with interest from the date, within one year thereafter. The bond was signed and sealed by Joseph Small and John Beck, as two of the commissioners of York county. The seal of the county was also affixed thereto, and the execution thereof, attested by Daniel Small, as clerk of the Board of Commissioners. Defendant pleaded non est factum and payment, with leave to give the special matter in evidence. During the pendency of the action it was transferred by virtue of an Act of Assembly, passed the 6th day of June 1839, from the Court of Common Pleas of York county to the Common Pleas of Adams county for trial ; when the defend- ant put in a plea to the jurisdiction of the latter court. The ground of objection was, that it was not such a cause of action as came within the provisions of the Act ; which provides, that " the Court of Common Pleas of Adams county shall take cogni- zance of, and have and exercise jurisdiction in all cases of debt, contract, claim, mechanics' lien, or demand arising, on work done, materials furnished, or otherwise, in building or erecting the new court-house in the county of York ; and of contracts made for the purchase of the ground for erecting the said court-house, and for the trial of the appeals of the late county treasurer and com- missioners, from the report of the auditors of said county ; and the said Court of Common Pleas of Adams county shall have the same jurisdiction and power, in relation to said debts, contracts, claims, mechanics' liens, appeals and demands, as the Court of Common Pleas of York county now has, and the same mode of 316 SUPREME COURT [Harrisburg [York County v. Small.] trial shall be pursued in Adams county, that would by law have been pursued in York county ; and the prothonotary of the Court of Common Pleas of York county, shall, at the request of any person or persons interested, certify to the Court of Common Pleas of Adams county, any record or records, mechanics' liens, entry, or other proceedings heretofore had, made, or entered, or thereafter to be had, made, or entered, in York county, in relation to said debts, claims, mechanics' liens, appeals and demands ; and the prothonotary of Adams county shall enter the same on record, and the same proceeding may be had thereon in Adams county, that otherwise might have been had in York county, and with like effect. And the sheriff of Adams county shall serve all neces- sary process, under this Act, in the county of York, in the same manner, and with like effect, as the sheriff of York county might have done, except original process, which shall be executed by the sheriff of York county, and suits on said debts, contracts, claims, or demands, may hereafter be brought in the county of York, and removed for trial, as aforesaid, to the county of Adams." In regard to the plea to the jurisdiction of the court, the following facts were agreed on by the counsel for the respective parties, and submitted to the court in the form of a special verdict ; to wit, that the bond upon which this suit was brought, was given for certificates of loan in the form as is hereinafter inserted, issued in pursuance of the following resolution of the commissioners of York county : "Thursday, April 5th, 1838. The board again met in the com- missioners' office, and, among other things, Resolved, that for the purpose of conducting and carrying on the building of a new court-house, offices, &c., certificates of loan be issued, as county certificates, to the amount of $40,000, which the Board hereby pledge the faith of the county to redeem at the expiration of two years from the date of the said certificates. The said certificates to be of the denomination of $1, $2, $3, and $5 to read as fol- lows : ' The county of York promises to pay to the bearer, two years after date, at the treasurer's office, or the York Bank, dollars, with interest, at the rate of one per cent, per annum, part of a loan authorized by the county commissioners, by virtue of a resolution passed the 5th of April 1838.' Resolved, also, that the said certificates shall be signed by an assistant clerk and assistant treasurer, to be appointed for that purpose by the board hereafter. Resolved, also, further, that Daniel Small is hereby appointed treasurer of the building fund, to hold the said fund, and to pay all bills relating to the said building, and take receipts for the same, and keep an accurate account of all the receipts and dis- bursements ; and, when the building is finished, to exhibit a plain and accurate account of the whole expenditure to the board of commissioners then in office; and should there appear to be a May 1841.] OF PENNSYLVANIA. 317 [York County v. Small.] balance of said fund in his hands, to pay the same to the order of such board of commissioners. " May 17th, 1838. The board met in the commissioners' office pursuant to notice given. The certificates of loan being received, and the bank refusing to make a loan, the board resolved to issue the certificates forthwith. The following persons to sign the same, viz. : the $1 notes to be signed by H. H. Fry, as assistant clerk, and by W. Ilgenfritz, as assistant treasurer ; no $2 notes having yet been received, the $3 notes to be signed by John Stroman, as assistant clerk, and Israel Koll, as assistant treasurer; the $5 notes to be signed by the said H. H. Fry, as assistant clerk, and W. Ilgenfritz, as assistant treasurer. The said persons having been notified of this appointment on the 18th instant, proceeded to perform their duty." That the said certificates of loan were received by the plaintiffs from various persons, and from others than those engaged about the building of the court-house ; that all the said certificates of loans were not, in the first instance, paid to workmen, or for materials for the court-house. The court thereupon overruled the plea to their jurisdiction. On the trial of the issues joined upon the other pleas, evidence was given showing the execution of the bond, on the 15th of October 1838, by Joseph Small and John Beck, as commissioners of York county. That Joseph Small was elected a commissioner of York county on the 13th of October 1835, for a term of three years; and took the oath of office on the 3d of November following. That John Beck was elected to the office of commissioner for York county, on the 14th of October 1836, for a term of three years. The plaintiffs also offered to show further by Daniel Small, called as a witness on their behalf, that at the date of the bond, he was, and had been for a long time previous, clerk of the commissioners ; and that Joseph Small and John Beck were at said date the acting commissioners of the county, had possession of the office, the custody of the seal, and performed the duties of commissioners; which was objected to by the counsel for the defendant, but the objection was overruled by the court ; to which the defendant's counsel excepted. The witness then testi- fied, that Joseph Small, John Beck, and William Nichols, were the three commissioners at the time the bond was executed, acted as such up to that date, and subsequently. That witness was their clerk ; that Mr Small and Mr Beck had the custody of the office papers, seal, &c. That Mr Nichols was not present when the bond was executed. It was admitted that John Raymond was elected commissioner of York county on the 9th of October 1838, and on the 22d of the same month, took the oath of office. The plaintiffs' counsel then offered to read the bond in evidence, but it was objected to by the counsel of the defendant on the ground that Joseph Small was not a commissioner at the date of the bond. The court, however, overruled the objection; and the l. 2 9 * 318 SUPREME COURT [Harrisburg [York County v. Small.] counsel of the defendant thereupon excepted to the opinion of the court. On the part of the defendant, Joseph Small, who had exe- cuted the bond as a commissioner of York county, was called as a witness, and testified that he signed the bond ; that it was given for certificates issued by the board of commissioners, in pursuance of the resolution set out above, consisting of ones, twos, threes, and fives, meaning dollars. That the plaintiffs received them for goods in their store ; that the commissioners received them from the plaintiffs, and gave the bond for them ; that witness had some of the certificates paid out by Daniel Small, did not know how many, but all that he ever saw paid out, were paid out by him. That they were issued by a resolution of the board of commis- sioners, and Daniel Small was appointed treasurer to pay them out. It was then admitted that the plaintiffs received them at their coun- ter, in the course of trade, from those who worked on the court- house and others ; when the defendant's counsel asked the witness to state in what manner, and to whom, and for what the certifi- cates, purporting to be issued by the county, were issued, part of which said certificates were the consideration of the bond on which this suit was brought. The counsel of the plaintiffs ob- jected to this question being answered, whereupon the court over- ruled the evidence ; and the counsel for the defendant excepted to the opinion of the court in this behalf. John Raymond, the successor of Joseph Small in the commissioner's office, testified that he was notified of his election on the evening that the return was made, 12th of October 1838 ; and that he never refused to accept the office. It was then admitted that William Nichols was elected on the 10th of October 1837, and the certificate of his election filed on the 13th of the same month. Errors assigned : 1. In overruling the plea to the jurisdiction of the Court of Common Pleas of Adams county. 2. In admitting the bond to be read in evidence. 3. In rejecting the defendant's offer to prove in what manner, and to whom and for what the certificates, purporting to be issued by the county, were issued, part of which said certificates were the consideration of the bond on which this suit was brought. 4. In charging the jury that the acts of Joseph Small, after the three years had expired for which he was elected commis- sioner, but before his successor, John Raymond, was sworn into office, were binding upon the county. 5. In charging that the certificates, for which the bond was given, were a valid consideration, and that the plaintiffs were en- titled to recover on the bond, notwithstanding the certificates were issued illegally. Ramsey, for plaintiff* in error. May 1841.] OF PENNSYLVANIA. 319 [York County v. Small.] Stevens and Hambly, for the defendants in error, in support of the opinion of the court, embraced by the 3d error, cited 4 Rawle 411. And, in support of the opinion of the court, embraced by the 6th error, cited Hess v. Werts (4 Serg. 4* Rawle 356.) The opinion of the Court was delivered by KENNEDY, J. The plea to the jurisdiction of the court was correctly overruled. The demand for which the bond was given, seems to be embraced by the Act of 1839, under which this action, brought for the recovery of it, was transferred from the Court of Common Pleas of York county to that of Adams county, for trial. It is clear that the certificates, which formed the consider- ation for giving the bond, were issued for the purpose of enabling the commissioners of the county to carry into effect the building and completion of the new court-house; and therefore may be said with the utmost propriety to have arisen in building the same ; which would bring it within both the words and the mean- ing of the Act. The words in this respect are, " demands arising on work done, materials furnished, or otherwise in building or erecting the new court-house in the county of York ;" so that it is sufficient, if the demand in suit has arisen in any way whatever from the building or erecting of the new court-house, to entitle the party interested to have it removed for trial to the county pointed out for that purpose, in order that it might be tried by a jury, free from all prejudice, as well as interest, in regard to it. The court below were also right in permitting the bond to be read in evidence to the jury. The execution of it was very satis- factorily proved. And it was shown likewise that Joseph Small and John Beck, by whom it was executed as commissioners of the county, had been previously duly elected to that office ; that they had taken upon themselves the execution of the duties appertaining thereto, and continued thence to do the same until after the execution of the bond. The exception is confined to Mr Small. It is contended that he was elected to the office for a term only of three years; and that having been elected to the office on the 13th of October 1835, his term expired on the 12th, or 13th at farthest, of October 1838, two or three days before he joined in executing the bond. And the more especially ought it to be so considered, as John Raymond had, previously to the exe- cution of the bond, on the 10th of October 1838, been duly elected the successor of Mr Small in office, and was willing to accept the office. To this it may be answered, however, that under the Act of Assembly, Joseph Small was not elected merely for a term of three years to the office of commissioner, but until his successor should be elected or appointed. Now it is perfectly plain, that the reason for declaring that a preceding commissioner of the county should hold his office until a successor should be appointed or elected to take his place, was to prevent the office from becom- 320 SUPREME COURT [Harrisburg [York County v. Small] ing vacant for any length of time, so far as it was practicable to provide against it. Hence, to effectuate the object of the Act in this respect, there does not appear to have been any impropriety in Joseph Small's continuing to perform the duties of a commis- sioner until his successor, John Raymond, took the oath of office prescribed by law, which was a prerequisite to his entering on the performance of the duties of it ; but it was not taken by him until the 22d of October 1838, say seven days after the execution of the bond. At all events, it is abundantly clear that Joseph Small was in the full exercise of the duties of the office of com- missioner of York county, at the time he executed the bond as such ; and if not commissioner de jure, he was so de facto ; and whether he was the one or the other, his act, in executing the bond in favour of the plaintiffs below, would be binding upon the county. This disposes of the second error, and goes to show that the court were right. We also think that the third error has not been sustained. The offer was quite too general. Nothing whatever, pertinent to the issue, is specified in it ; and it would be unreasonable, if no- thing worse, to have the time of the court and jury occupied in hearing evidence, unless the nature and import of it be stated, so that the court may judge whether it is relevant or not to the issues trying. The fourth error has been answered in what is said above on the second error, and the direction of the court, complained of in it, shown to be correct. The fifth error raises the question, whether the bond is valid and recoverable, seeing it was given for promissory notes or cer- tificates, issued and put into circulation by order of the board of commissioners of the county of York, contrary to law. This question is not of difficult solution ; for notwithstanding the cer- tificates were issued in violation of Acts of Assembly prohibiting the same, yet by the Acts of the 22d of March 1817, and the 12th of April 1828, the party issuing them is made, in express terms, liable to pay them. Here the county of York is regarded as the party that issued the certificates, for which the bond was given ; and being liable under the Acts of Assembly to pay them, it follows that the bond is good and binding. Judgment affirmed. May 1841.] OF PENNSYLVANIA. 891 Jones against Patterson. In an action of ejectment by a vendor against one who purchased the land as the property of the vendee at sheriff's sale, the vendee is not a competent witness. It is competent to give parol evidence to explain a written receipt, and show that it was given for a note and not for money. ERROR to the Common Pleas of Dauphin county. Alexander Patterson against Andrew J. Jones. This was an action of ejectment for a lot of ground, and was brought to com- pel the payment of the two last instalments mentioned in the fol- lowing agreement : Articles of agreement made and concluded upon this 17th day of September 1835, by and between Alexander Patterson, of Lan- caster county, of the one part, and John Smull, of Harrisburg, of the other part, witnesseth that the said Alexander Patterson shall and will, on or before the first day of April next ensuing, well and sufficiently convey, clear of all encumbrances, to the said John Smull, his heirs or assigns, that certain lot situate in Swatara township, Dauphin county, adjoining lot of John Geiger, the river Susquehanna, George Mish, and the Pennsylvania canal, containing about nine acres. In consideration whereof, the said John Smull promises to pay the said Alexander Patterson, his heirs or assigns, the sum of $95 per acre, for each and every acre said lot shall contain, payable one-third on the delivery of the deed, April 1, 1836, and the remaining two-thirds in two equal annual payments, with interest, to wit: on April 1, 1837, and April 1, 1838, said payments to be secured by a mortgage on the property. Witness our hands and seals. The defendant gave in evidence the record of the judgment, execution, and sale of the lot as the property of John Smull to him, and then read the following receipt : "Received, May 5th 1837, of John Smull, two hundred and sixty-seven dollars and thirty-three cents, second payment on the within agreement. " $267.33. ALEX. PATTERSON." To rebut this, the plaintiff called John Smull, the party to the agreement, and offered to prove by him that when the above receipt, 5th May 1837, for $267.33, was given, there was no money paid, but that said Smull gave his promissory note to the plaintiff, payable at the Pennsylvania Bank, and that the receipt was not to be credited i. 41 322 SUPREME COURT [Harrisburg [Jones v. Patterson.] to him as so much money paid on the contract, unless the note was paid in bank at maturity ; which note was endorsed by Pat- terson. That the said note was not paid when due, nor since. That at the time of the sheriff's sale, Patterson gave notice of the amount of money which was due for the land ; and that the two last payments are due and unpaid ; and that Smull retained the article of agreement, with the receipt, until after the sheriff's sale ; nor was the receipt shown to any one by Smull till after the sale, or made known ; and to be followed with proof that the lot at the time of sale was worth from $1000 to $1500. The defendant objected to this evidence and to the competency of the witness. The court overruled the objections, and admitted the evidence ; defendant's counsel excepted. John Smull sworn. This receipt was placed on the article for a note given by me, payable by me at ninety days, to Mr Patter- son, at the office of Discount and Deposit of the Pennsylvania Bank at Harrisburg. I never paid the note; it was agreed, when the receipt was given, that the receipt was not to be credited on the article, unless the note was paid at bank when due. This receipt remained in my hands at that time, and until after the sheriff's sale the article with the receipt on it. The article went out of my hands a short time previous to the acknowledgment of the sheriff's deed. I gave it to Mr M'Clure, as my attorney ; and when I gave him the article, I told him how the receipt was given. On the day of the sheriff's sale, I saw Mr Patterson at the sale. The land was sold subject to his notice, which he put up of the two gales due. The receipt was not known by the pur- chasers. Patterson gave notice at the sheriff's sale that the two last payments were due. The property was worth then 81500; it had been appraised before at $2000. The jury, under the instruction of the court, found a verdict for the plaintiff to be released, upon the payment of $683.94, within five days. Errors assigned : 1. The court erred in admitting John Smull as a witness, he being interested to put on the purchasers the payment of the note he had given to Alexander Patterson. 2. The court erred in admitting the evidence of John Smull to contradict the written receipt ; said receipt of the 5th May 1837, for $267.33, the second payment, being a bar to Alexander Pat- terson's recovering against the purchaser at sheriff's sale, that payment; and in their charge to the jury. M'Clure, for plaintiff in error, argued that the witness was clearly interested to produce such a verdict as would pay the note which he had given for the second instalment, and cited 2 Stark. Ev. 727; 4 Binn. 83; 5 Serg. $ Rawle 371; 6 Whart. 445; May 1841.] OF PENNSYLVANIA. 323 [Jones v. Patterson.] as between the parties to a receipt, it may be explained by parol evidence ; but it was clearly unjust to permit the receipt to be explained to mean what would affect the intent of a third person, who bought at sheriff's sale upon the faith of it, and without no- tice of any explanation which could be made of it. 6 Whart. 354 ; 7 Watts 270. Herman Alricks, for defendant in error. At the sheriff's sale, the plaintiff, Mr Patterson, gave notice of his claim, upon the agreement, of two instalments, thereby making his election to proceed against the land, and from it to collect the money. Smull was thereby discharged from his personal liability, and was disinterested in the result of the suit. 16 Serg. fy Rawle 252. Smull's declarations that the money was not paid, would be evi- dence of the fact ; why not then his testimony ? 2 Serg. < Rawle 354; 4 Serg. fy Rawle 474; 1 Watts 152; 3 Yeates 196 ; 9 Watts 392; 16 Serg. fy Rawle 280. The opinion of the Court was delivered by SERGEANT, J. This is an ejectment for a lot of ground, brought by Patterson against Jones, to enforce the payment of the balance of the purchase money due on articles of agreement for the sale of the lot, made between Patterson, the former owner, and Smull. Jones the defendant holds under Smull, as purchaser at sheriff's sale. The plaintiff alleges that the two last instalments due under the articles were never paid, and claims their amount. He asserts that although Smull gave him his promissory note for the amount of the second instalment, $267.33, yet the note remains unpaid. The question on the trial seems to have been, whether the plain- tiff was entitled to the second and third instalments or only the third. The defendant gave in evidence Patterson's receipt to Smull on the back of the articles for the second instalment. The plaintiff then offered Smull as a witness to show, that when this receipt was given no money was paid, but Smull gave his promis- sory note to Patterson, which it was agreed should be credited only when paid, and that the note never had been paid ; and also, that at the sheriff's sale, Patterson gave notice of his claim to both instalments, and the defendant had no knowledge of the receipt endorsed. Smull was objected to by the defendant, as an incompetent witness, on the ground of interest, and the question is, whether Smull was admissible as a witness to prove these facts. The effect of Smull's evidence is to subject the land to the pay- ment of the disputed instalment, and to discharge himself from the payment of his note. Should the plaintiff fail in establishing his claim to the second instalment, and obtain from the defendant by means of a conditional verdict, only the third instalment, he could maintain his action against Smull on his note, and Smull 324 SUPREME COURT \Harrisburg [Jones v. Patterson.] could not resort to the defendant, the purchaser. But should the plaintiff succeed here as to both instalments, the defendant would either be obliged to pay them on a conditional verdict, or the plain- tiff would recover back again the lot, in which cases the instal- ments would be extinguished. Smull, therefore, is directly inte- rested in the event of this suit, to the amount of his note and in- terest thereon. But it is said Smull is at all events discharged from his note, because the plaintiff, by giving notice at the sale, and averring that the purchaser took the land subject to both instalments, has elected to look to the land, and waived his resort to Smull. I do not see how this effect could flow from the conduct of the plain- tiff. On the contrary, his omission to give notice might with more plausibility be contended to have this effect. The plaintiff in giving notice did no more than it was right for him to do, for the safety of the purchaser. A person having concurrent securi- ties, one personal, the other binding land, does not waive the for- mer by asserting his legal claim against the latter, unless satisfac- tion or something equivalent be obtained. We are therefore of opinion that the court below erred in admitting Smull as a wit- ness for the plaintiff. There is nothing in the second error. The receipt was but a part of the transaction, and receipts are open to explanation by parol evidence of what occurred at the time between the parties, and of the circumstances and conditions under which they were given. Judgment reversed, and a venire facias de novo awarded. \* Taylor against Dougherty. A return of unseated land to the County Commissioners for taxation, and the payment of the taxes for thirty years, are prima facie evidence of ownership of the warrant upon which the land was surveyed : and in an action of ejectment against a naked intruder who entered with notice of the plaintiff's claim, are conclusive, without other evidence of a conveyance by the warrantee, who under such circumstances will be considered as having been a trustee for the owner. ERROR to the Common Pleas of Clearfield county. Robert Dougherty and Robert Mehaffy against Daniel Taylor. This was an action of ejectment, in which the plaintiffs gave in evidence a warrant to Henry Kepple dated 12th of May 1773, for 300 acres of land: a survey thereon of 117 acres, regularly May 1841.] OF PENNSYLVANIA. 325 [Taylor v. Dougherty.] returned, being the land in dispute : a patent to Robert M'Clay dated 2d of May 1833, and a regular chain of title from M'Clay to the plaintiffs. The defendant then proved that he had made an actual settle- ment on the land in 1830, prior to the date of the plaintiffs' patent, and had been in possession ever since. The plaintiffs then gave evidence to prove that the land was returned for taxation by Samuel M'Clay, the ancestor of Robert M'Clay, as early as 1805, and that the taxes had been paid from that time to the time of trial of the cause ; and this for the pur- pose of establishing the conclusion that Henry Kepple, the war- rantee, was but a trustee for Samuel M'Clay, who was the real owner of the warrant. The plaintiffs also proved that the defendant, Taylor, had full notice of M'Clay's claim before he entered upon the land. The court below. thus charged the jury : BURNSIDE, President. The plaintiff has shown a warrant of 1773, and a survey made thereon by Thomas Smith, the proprie- tary's deputy before the revolution, and a patent in 1833 to Ro- bert M'Clay, the youngest son of Samuel M'Clay, deceased, the will of Samuel M'Clay proved in 1811, and a release from his other children to Robert. The plaintiff has further shown, that as soon as Clearfield county was attached to Centre, it was then taxed as the property of Samuel M'Clay in Centre. Plaintiff has shown that the taxes were paid in Centre for 1805, 1806, 1807, 1808, 1809. It has further been shown that the heirs of Samuel M'Clay were charged with the taxes in Clearfield county, and the books show them paid for 1814 to 1834 inclusive. They were assessed the intermediate years for 1810 to 1813 inclusive, and the taxes assessed were subsequently paid. The evidence is that for thirty years M'Clay and his children paid the taxes on these lands. There is further evidence by Greenwood Bell, that Tay- lor, before he entered in 1829, made a visit to M'Clay, and had received an introduction to him. The land being surveyed, re- turned, and patented, and proof of claim and payment of taxes for twenty-one years and more, it is the opinion of the court, en- ables the plaintiff to recover against an intruder, where the asses- sors, commissioners, and all the officers of the county treat a tract of land as belonging to a particular person, and when the intru- der has knowledge and means of knowledge of the owners. The person so paying taxes has a right to recover against such intru- der without showing a regular, unbroken chain of title or a deed from the warrantee when that title is carried back beyond the entry of the intruder. Smith and Wallace, for plaintiff in error. The plaintiffs below showed no title to the land prior to the patent in 1833, which was subsequent to the defendant's actual settlement and possession of I. 2c 326 SUPREME COURT [Harrisburg [Taylor v. Dougherty.] the land. It has never been held that the mere payment of taxes gives title to land, or even makes up a defect in the chain of title. Conceding, then, for the sake of argument, that the taxes were paid by M'Clay for thirty years, (which, however, was not proved in the cause) can that give him, and those claiming under him, a title to the land ? But it did not appear by whom the taxes were paid. 9 Watts 84; 10 Watts 141. Wallace and Blanchard, for defendants in error, argued that the question was not whether the payment of taxes gave title to the land, but whether the title, shown to have been perfect, be- longed to the defendant. The plaintiffs gave evidence of a war- rant, survey, and patent in pursuance of it, to Samuel M'Clay under whom they claimed ; and the question was whether that warrant, which, by the custom in Pennsylvania, was often in the name of a trustee, really belonged to M'Clay ; and all the court below said, was, that the return of the land by M'Clay for taxa- tion, and the payment of taxes for thirty years, lead irresistibly to the conclusion that the warrant belonged to M'Clay, and that Kepple, who, in all that time, had never pretended to claim the land, was a mere nominal owner a trustee for the owner. The opinion of the Court was delivered by GIBSON, C. J. The only question in the cause is, whether there is such evidence that the title under the warrant to Kepple is vest- ed in the plaintiffs as ought to have gone to the jury ; all the others, except those relating to hand-writing, and they are well enough, are resolvable into that. The plaintiffs claim under a patent to one of their predecessors, and against whom? A naked intruder, who entered, with full knowledge of the fact, in the guise of a settler on warranted land which was not open to settlement, and who is consequently entitled to no favour. The land was war- ranted and surveyed in 1773, in the name of Henry Kepple, of whom nothing has since been heard, during a period of near seventy years ; while those under whose title the plaintiffs claim, exercised the only ownership over the warrant, of which, as a title to wild land, it was susceptible they paid the only taxes for it that have ever been assessed on it, and this from 1805 till the trial of the cause. Surely, if the beneficial ownership had been in Kepple, he, or his representatives, would have claimed it long before. The presumption from time alone of an intermediate conveyance from him, as a trustee, would be sufficient to go to a jury as prima facie evidence of the fact. Samuel M'Clay was at least the re- puted owner of this warrant ; and he, or his children, exercised all the onerous acts of ownership incident to the relation, which were exercised by any one. And the presumption of a convey- ance in a case like the present arises more readily than in any other, from the well-known fact that in the days of the proprie- May 1841.] OF PENNSYLVANIA. 327 [Taylor v. Dougherty.] tary officers, as was said in Cox v. Grant, (1 Yeates 166) the per- son whose name was used in a warrant or location stood as a trus- tee for him who took out the title and paid the expense of the sur- vey. The same thing was said in Weidman v. Kohr, (13 Serg, fy Rawle 17.) Between parent and child, reputation alone was held sufficient to raise or rebut a trust ; as in Sampson v. Sampson, (4 Serg. 4* Rawle 331 ;) but continued acts of ownership superadded make the presumption extremely strong. In Galloway v. Ogle, (2 Binn. 468) a claim to a warrant and survey persisted in for thirty years, without counter claim by any one, was received as prim& facie proof that the right had been vested in the claimant by a conveyance, afterwards lost ; and in Evans v. Nargong, (id. 55) the procuring of a survey on a warrant in the name of an- other who had made no claim, was taken for prima facie evidence of ownership, though the deputy surveyor had returned the sur- vey as in dispute betwixt his employer and the warrantee. The case before us is much stronger, for we have the expendi- ture of money, not in a single contested act of ownership, but in acts repeated and persisted in for more than thirty years, as re- gards the ownership of the warrant, and without any adverse claim to it whatever. On every principle of authority and rea- son, this was sufficient not only to be left to the jury, but in the absence of conflicting evidence to command a verdict. The exe- cution of a deed is presumed from possession in conformity to it for thirty years ; and why the entire existence of a deed should not be presumed from acts of ownership for the same period, which are equivalent to possession, it would not be easy to deter- mine. It is unnecessary to examine the exceptions in detail, as those which are independent of the main principle are palpably unfounded. Judgment affirmed. 328 SUPREME COURT \Harrisburg Devinney against Reynolds. The omission of the commissioners to bid for a tract of unseated land the whole amount of taxes and costs which may have been assessed upon it, will not avoid the title in the hands of a bona fde. purchaser. The recital in a treasurer's deed for unseated land, that a bond was given for the surplus purchase money, is primd facie evidence of the fact, and sufficient for the purpose unless disproved. It is not necessary to give a surplus bond when the amount of it would not ex- ceed the cost of giving the bond. De minimis non curat lex. An interlineation or erasure in the acknowledgment of a deed, is an objection to the proof of execution, but will not avoid the deed itself. It is not necessary to the proper execution of a deed by an attorney-in-fact that he should sign his name to it ; the name of the principal alone is sufficient. A special power must be strictly pursued ; hence, if an attorney be authorized to convey a tract of land, after he shall have redeemed it from a sale by the trea- surer as unseated, and he conveys without redemption, the power is not well ex- ecuted, and the purchaser takes no title. A tract of unseated land may be sold by the treasurer for the non-payment of taxes, upon an assessment made by the commissioners, without the intervention of the assessor. ERROR to the Common Pleas of Juniata county. Levi Reynolds against James Devinney. This was an action of ejectment for three hundred acres of land. The plaintiff gave in evidence a warrant to John Housel, dated 21st of January 1794, and a survey made and returned thereon 16th of May 1794 ; and then offered a book containing a list of unseated land in Mifflin county, for the years 1814, '15 and '16. D. R. Reynolds sworn. This book is the original record of as- sessment in Mifflin county : the original rough assessments are not in the office. I examined the office with the clerk, and they could not be found ; that is the only record of assessments in the office for those years : I got the book out of the commissioners' office : it is an office book. Objected to. That it is not the original, and not proved to be a copy. No such book is authorized by law to be kept in the commis- sioners' office. The court overruled the objection, and sealed a bill of excep- tion. The book was then given in evidence, showing an assessment by the commissioners valuing the land at $150: tax for the years 1814, '15 and '16, 99 cents. The plaintiff then gave in evidence the treasurer's sale book, showing a sale of the land to Michael I foil man, and a deed to him, which recited a consideration less than the amount of taxes and costs due upon the land. The evi- May 1841.] OF PENNSYLVANIA. 329 [Devinney v. Reynolds.] dence was objected to on that ground, but the court overruled the objection, and sealed a bill of exception. The plaintiff then offered in evidence the following power of attorney : " Know all men by these presents, that I, Michael Hollman, of Washington county, and state of Maryland, do by these presents constitute and appoint William M'Allister my legal attorney, and authorize him to redeem a tract of land in Fermanagh township, surveyed in the name of John Housel, lying and being in Juniata county, state of Pennsylvania, which has been sold as unseated land in said county and state, and purchased by a certain James Devinney, and do further authorize and empower him, after re- deeming said land, to sell, dispose of, or otherwise use said land as to him may seem meet and proper ; and I do by these presents bind myself, my heirs and representatives, as fully and firmly as if it was done by myself. " Witness my hand and seal this 22d day of August 1838, " MICHAEL HOLLMAN. [SEAL]." " Bradford county ss. Pennsylvania. On the day of the date of the foregoing power of attorney, the within Michael Hollman came personally before me, the subscriber, one of the justices of the peace in and for said county, and acknowledged the foregoing power of attorney or in- strument to be his act and deed. Witness my hand and seal, the day and year above written. "DAVID ROWLAND. [SEAL]." The defendant objected to this : 1. It is not proved under the provisions of the Act of Assem- bly. 2. The word Pennsylvania was interlined by some one since the acknowledgment was made. The court overruled the objections, and sealed a bill of excep- tion. The plaintiff then offered in evidence the following deed, which was written upon the back of the treasurer's deed to Holl- man : " To all to whom these presents shall come : Know ye that Michael Hollman, by William M'Allister his lawful and regularly deputed attorney-in-fact, for and in consideration of fifty dollars to him in hand paid at and before the delivery of these presents by Levi Reynolds, has granted, bargained and sold, transferred, signed and set over unto the said Levi Reynolds and to his heirs and assigns, all the within mentioned and described tract of land with the appurtenances, to have and to hold, unto the said Levi Reynolds for ever : as also this deed poll. In witness whereof, i. 42 2c* 330 SUPREME COURT [Harrisburg [Devinney v. Reynolds.] the said Michael Hollman, by his attorney aforesaid, hath here- unto set his hand and seal, this 6th day of December, A. D. 1838. " MICHAEL HOLLMAN. [SEAL]. " In presence of " EDM. S. DOTY.' Juniata County, ss. Before the subscriber, a Justice of the peace in and for said county, personally came William M'Allister, attorney as aforesaid, and acknowledged the foregoing deed poll as the act and deed of the said Michael Hollman, to the end that the same may be recorded according to law. In witness whereof, I have hereunto set my hand and seal, this 6th day of December 1838. JACOB MYERS. [SEAL]. The defendant objected to the evidence offered, because : 1 . The power of attorney does not authorize the execution of the deed. 2. It is signed by Michael Hollman, and not by his attorney. 3. The deed is acknowledged by M'Allister, the attorney. 4. The proof of the power of attorney is not sufficient to justify the admission of the deed. The court overruled the objections, and sealed a bill of excep- tion. The defendant, for the purpose of establishing a subsequent sale for taxes, of the land which is vested in him, offered in evi- dence a book from the commissioners' office, and called witnesses to authenticate it. Robert Barnard sworn. I am treasurer of Juniata county. This is the book in which the assessments of the unseated lands are entered. I don't know anything about the small assessments. This book was made out by the commissioners, and handed to me, to sell the land described in it. Jacob A. Christy sworn. This is the only book in which the taxes were charged against the John Housel survey, (the book re- ferred to by Robert Barnard, the treasurer). All the unseated lands that were sold for taxes were charged in this book. Don't know of any other unseated lands but what are charged in this book. This book (with paper cover) is the transcript of the assessment of land, seated and unseated, for the year 1835, of Fermanagh township; these taxes in treasurer's book were charged by the commissioners; I done it by their direction; was their clerk; there is no other book in which the taxes are charged; there are no other books in the commissioners' office, showing a regular assessment of the unseated lands in Fermanagh township, than these two the one with the paper cover and the treasurer's book; this is the original triennial assessment for this (Ferma- nagh) township for 1835, '6, and '7; this is the book with the paper cover, not the one offered as treasurer's book. May 1841.] OF PENNSYLVANIA. 331 [Devinney v. Reynolds.] Witness again. This is the return of the deputy surveyor of unseated lands in this county, made in the spring of 1838, before the sale, and I made out the treasurer's list from it. Don't know how long before the sale this return was made ; it has no date to it. The plaintiff objected to the evidence, on the ground that the assessment was not such as would justify a sale of the land for the non-payment of the taxes. The court sustained the objection, and sealed a bill of excep- tion. The defendant then offered in evidence the sale by the trea- surer in 1838, and his deed to James Devinney. The plaintiff objected, and the evidence was rejected. The defendant's counsel submitted a number of points to the court, for their direction to the jury ; but they involved the same questions as those raised by the bills of exception. Mathers and Watts, for plaintiffs in error. Parker, for defendant in error. The opinion of the Court was delivered by ROGERS, J. This is an action of ejectment, to recover 300 acres of land in Fermanagh township, warranted in the name of John Housel. The plaintiff claims title to the tract in contro- versy, under a sale by the treasurer of Mifflin county to Michael Hollman for the taxes of the years 1814, 1815, 1816, and a deed by his attorney-in-fact to him. The court was right in admitting the book containing the list of unseated lands, as contained in the first bill of exceptions, be- cause it is proved to be the original record of the assessment. The other errors may be embraced in the exceptions taken to the charge. It is said, that if the land was not bid to a sum sufficient to pay the taxes and costs, the deed is void. It is enacted, in the 5th section of the Act of the 13th of March 1815, that if any tract of unseated land, sold for taxes, shall not have bidden for it a sum equal to the whole amount of taxes for which it shall have been advertised, and the costs, it shall be the duty of the com- missioners, &c., to bid off the same, and a deed shall thereupon be made by the treasurer to the commissioners for the time being, and to their successors in office, for the use of the county. No decision has been made, of which we are aware, which goes the length of ruling that the neglect or refusal of the commissioners to perform this duty, will avoid the title in the hands of a honafide purchaser. The commissioners and treasurer are public officers, and it would seem unjust to compel the purchaser to examine a fact peculiarly within their knowledge, and to visit him with the consequences of a mistake, which may arise from a miscalculation by them of the amount of the taxes and costs. But be this as it 338 SUPREME COURT [Harrisburg [Devinney v. Reynolds.] may, we see no force in the objection, since the supplement to the Act of the 13th of March 1817, which makes it discretionary with the commissioners of the respective counties what lands they will purchase for the use of the county. The supplement (first section) would seem to have been intended to remedy the inconveniences which arose, and which were soon felt, from com- pelling the commissioners, without any discretion, to purchase the lands in a given event. Cases will frequently arise, where it is much better that the land should go into the hands of individuals who will cultivate and improve it; and when, in truth, its intrinsic value is not equal to the burthens imposed upon it. The legisla- ture have, therefore, wisely left a discretion in the commissioners, who it is presumed will discharge their duty in attending to the interest of the county. The recital in the deed is prima facie evidence that the bond was filed as then stated, and it was not necessary to show that fact by any other testimony, as long as it remained unre- butted by any testimony on the part of the defendant. We may also apply the principle, de minimis non curat lex, for it seems the surplus was only one cent. Besides, it has been decided that where the cost of the bond would exceed the surplus, it is not ne- cessary to file it. But it is contended there has been an interlineation by the in- sertion of the word " Pennsylvania" in the acknowledgment, which it is said is in a different ink. But this, to make the most of it, goes to the proof of the execution and cannot avoid the deed itself. But, in truth, there is neither interlineation nor erasure : and as to the allegation (admitting its truth) that it is in a differ- ent ink, it is so common as to be an immaterial circumstance. But did the letter of attorney authorize the execution of the deed, without proof that the attorney had redeemed the land? and if so, was the deed defectively executed ? These points arise in the charge. It is convenient to consider the second point first. The execution of the deed is in proper form, and, indeed, we sel- dom see such instruments executed so much in accordance with approved precedents. The deed commences, " To all to whom these presents shall come, know ye that Michael Hollman, by Wil- liam M'Allister, his lawful and regularly deputed attorney-in-fact, &c. grants," &c. And concludes, " In witness whereof, the said Michael Hollman, by his attorney aforesaid, hath hereunto set his hand and seal, this sixth day of December 1838." To this are ap- pended the name and seal of Michael Hollman. It would be use- less to add the name and seal of the attorney, for it is what it purports to be, the deed of the principal and not the attorney, and therefore does not require his name or seal, but the name and seal of the principal only. The letter of attorney, after reciting that the property had been sold as unseated land, authorizes and empowers the attor- May 1841.] OF PENNSYLVANIA. 333 [Devinney v. Reynolds.] ney, after redeeming the land, to sell, dispose of, or otherwise use said land, as to him may seem meet and proper. An agent, con- stituted for a particular purpose and under a limited power, can- not bind his principal if he exceeds his power. A special power must be strictly pursued : and whoever deals with an agent con- stituted for a special purpose, deals at his peril when the agent passes the precise limits of his power. This was a special power, to be exercised in the event, and after he had redeemed the land. But this prerequisite he omits to prove, and consequently leaves himself open to the objection which has been made. We at first doubted whether the defendant could take advantage of this de- fect ; but on reflection we are convinced he may. He has an in- terest in it, as the purchaser of the land at the tax sale ; and as such, is entitled to the redemption money which the attorney is directed to pay. On another trial, it will be open to the plain- tiff to prove that the land was redeemed, or what is the same thing, that the plaintiff ratified the act of his agent. The error in rejecting the book of the assessment offered in evi- dence by the defendant only remains. The book was offered for the purpose of showing that the land had been assessed by the commissioners. This was evidence, on the authority of Hubley v. Keyser, (2 Penn. Rep. 496.) The assessors value the land, but the commissioners make the assessment ; from which it follows, that you cannot avoid a sale for taxes merely because you are unable to prove that the assessor has performed this ministerial duty. It is enough, under the liberal construction given to the Act of 1815, that an assessment has been made by competent authority. The treasurer proved that the book offered in evidence was the book in which the assessment of the unseated land was entered, that it was made out by the commissioners, and handed to him to sell the lands described in it. It was also proved that it was the only book in which the taxes were charged against the Housel survey, and that all the unseated lands that were sold for taxes were charged in this book, and that the witness did not know of any other unseated land but that which is charged in this book. The witness says he was the clerk of the commissioners ; that the taxes in the treasurer's book were charged by the commissioners; that he did it by their directions. The court rejected the evi- dence, because another book with a paper cover was proved to be the transcript of the assessment of the land, seated and unseated, for the years 1835, '36 and '37, of the township, and that the tax of 1835 was not charged in it ; and that the book does not purport to be an assessment. But does not the evidence tend to prove that an assessment was made that year, although an inference to the contrary may be drawn from the fact that there is no charge for that year in the book, which, it appears, was a transcript of the assessment for that county ? Judgment reversed, and a venire de novo awarded. 334 SUPREME COURT [Harrisburg Anderson against Levan. The acceptance of a specialty from one partner, or obtaining a judgment against one partner for the debt of the firm, whether the other be a known or dormant partner, is an extinguishment of the claim against him. In an action against partners, the declarations of any one of them, respecting the existence of the partnership, may be given in evidence to establish it. If a joint suit against two be referred to arbitrators, and an award made against both, from which one appeals, the judgment remains against him who does not appeal, and the cause is tried as to the other alone. ERROR to the Common Pleas of Berks county. Abraham Levan against Joseph Frahn and Edward Anderson. This was an action of assumpsit, in which the plaintiff declared against the defendants jointly : for goods sold and delivered : the same with a quantum valebant : and for money had and received. The cause was referred to arbitrators, who made a report in fa- vour of the plaintiff, and from which Anderson, one of the defend- ants, appealed : the other did not. The cause being at issue, and the jury sworn as to Anderson alone, the plaintiff offered in evi- dence the following agreement : "Reading, December 3d, 1836. " Agreement between Edward Anderson and Joseph Frahn, to buy wheat. Mr Frahn will go to Philadelphia and purchase wheat with money furnished by Anderson. Mr Frahn will have it brought from Philadelphia and grind it into flour and sell it to the best advantage ; the expenses are to be deducted from the proceeds, and the balance equally divided for profit or loss. It is understood that Mr Frahn is not to charge for grinding over what he may have to pay hire." The defendant objected to the evidence, and the court overruled the objection, and sealed a bill of exception. The plaintiff then offered to prove the repeated declarations of Frahn that he and Anderson were partners. This the defend- ant objected to, but the court overruled the objection, and sealed a bill of exception. The evidence was then given. The plaintiff then gave in evidence the following paper : May the 12th, 1837. Due to Mr Abraham Levan for wheat to the amount of four hundred and forty-one dollars and eighty-seven and a half cents. Received by me, JOSEPH FRAHN. Plaintiff here closed his evidence. May 1841.] OF PENNSYLVANIA. 335 [Anderson v. Levan.] The defendant then gave in evidence note under seal, produced by plaintiff on notice, as follows : " I promise to pay unto Abraham Levan, or order, the sum of four hundred and forty-one dollars and eighty-seven and a half cents on demand, with interest till paid, for value received. Wit- ness my hand this 4th of July, one thousand eight hundred and thirty-seven. " JOSEPH FRAHN. [SEAL]." With the following payments endorsed thereon. " November the 17th day 1837, received on the within, two hun- dred dollars." " January the 29th day 1838, received on the within note, one hundred dollars." It is admitted that the note under seal is for the same money for the wheat claimed in this suit. The defendant then gave in evidence articles of co-partnership between Joseph Frahn and Edward Anderson, dated 1st of Jan- uary 1838, name of the firm to be Joseph Frahn & Company, to carry on the milling business for the period of five years. Also a written agreement, dated 14th of May 1838, signed by Joseph Frahn and Edward Anderson, that said partnership was dissolved by mutual consent, &c. Defendant closed. After the counsel on both sides had concluded their arguments and address to the jury, and the charge of the court was about to be delivered to the jury, the plaintiff moved to amend his decla- ration by inserting two new counts, to which defendant objected ; the court allowed the amendment, and defendant excepted. Of these two counts the first charged the defendants, as part- ners, Edward Anderson being a secret partner, with grain sold and delivered. The second charged them, as partners generally, for grain sold and delivered, with a quantum valehat. The court below thus charged the jury : " That Frahn purchased the wheat from the plaintiff is not de- nied, nor is the quantity or price controverted, indeed the amount due the plaintiff is not a matter of dispute. Anderson denies that he was a partner at the time the wheat was purchased ; that there was a partnership formed between Anderson and Frahn on the 1st of January 1838, is proved by their written agreement. This wheat was purchased and note given before this date ; was An- derson a partner at the time of the purchase ? This you will de- termine from the evidence. There is proof that about the time this purchase was made, Anderson frequently visited the mill, and examined the books, and gave directions how and what to do. That he at different times received money. Why was this done ? 336 SUPREME COURT [Harrisburg [Anderson v. Lcvan.J How was it ? Had he an interest in the business 1 Was he to have a share of the profits ? If he was, he would be a partner and lia- ble for this debt. You will therefore determine whether Ander- son was a partner at the time of the purchases ; if he was not then a partner, he would be entitled to a verdict, for that would end the case. Was he a dormant partner ? A dormant partner is one who is not seen or known in the business, but who is a par- ticipant in the profits. This, as to creditors, makes him liable, inasmuch as he takes from them part of the fund, which is the se- curity for the payment of their demands. In this case it matters not whether Anderson was a generally known, or a dormant partner, provided the business was not trans- acted in his name, and the plaintiff did not know that he was a partner : that others knew the fact will not affect him. Anderson's name did not appear in the transaction, nor in the books. To entitle the plaintiff to recover, you must be satisfied that Anderson was a partner at the time of the purchase, and that the plaintiff did not know it, either then, or at the time he took Frahn's note, under seal, for the amount due. If Anderson was a partner, and that was known to the plain- tiff at the time he took the sealed note, this would be a satisfac- tion of the original indebtedness ; the presumption would be, that it was intended to be an extinguishment of the debt ; you could not well account for his taking the note on any other principle ; it is not pretended that it was taken as a collateral security. There is no proof that the plaintiff did know that Anderson was a partner, either at the time of the sale, or giving the note. The plaintiff did not see Anderson, or transact any business with him. His name was not disclosed as a partner, or even named to the plaintiff. If Anderson was not known as a partner, at the time the note was taken by the plaintiff, you cannot suppose that he intended to release him. This would not be a rational inference : that he should be discharged from his liability under such circum- stances would be unjust. If Anderson was a partner at the time of the purchase, and the fact was not then known to the plaintiff, nor known at the time the note was taken, then the plaintiff would be entitled to a ver- dict ; and unless you are satisfied that such was the fact, the de- fendant would be entitled to your verdict. You will determine the facts, as to them you will decide for yourselves without being in any way influenced by what I have said as to them." To this charge defendant excepted. Errors assigned : 1. The action is assumpsit on a joint contract against two de- fendants, both of whom were summoned and appeared ; and a final judgment was taken against one only, Edward Anderson. 2. The court erred in admitting in evidence the agreement be- May 1841.] OF PENNSYLVANIA. 337 [Anderson v. Levan.] tween Edward Anderson and Joseph Frahn, dated 3d of Decem- ber 1836, mentioned in the first bill of exceptions. 3. The court erred in admitting in evidence the testimony men- tioned in the second bill of exceptions. 4. The court erred in allowing the declaration to be amended by filing the two additional counts. 5. The court erred in leaving it to the jury to say whether An- derson was a partner, and if he was, in saying that he was liable to pay this debt. 6. The court erred in charging the jury that it mattered not whether Anderson was a known partner, or dormant partner, pro- vided his name did not appear in the transaction, and the plain- tiff did not know that he was a partner, although others did know it. 7. The court erred in charging the jury that if Anderson was a partner at the time of the purchase, and the fact was not then known to the plaintiff, nor known at the time the note was taken, then the plaintiff would be entitled to recover. Smith, for plaintiff in error. There cannot be separate judg- ments in the same suit against several defendants. 2 Serg. fy Rawle 280 ; 1 Watts 126. Frahn's declaration that Anderson was a partner was not evidence. 10 Johns. 66 ; 16 Serg. fy Rawle 120. The sealed note was an extinguishment of the claim. 2 Johns. 213 ; 4 Johns. 461 ; 3 Johns. Cas. 180 ; Peters's C. C. 301 ; 9 Serg. 4- Rawle 142. Strong, for defendant in error, on the last point, which he con- ceived to be the only difficulty in the case, cited 5 Coiv. 534 ; 4 Watts 378 ; Goto on Part. 176 ; 5 Watts 454 ; 1 Whart. 392 ; 1 Penn. Rep. 380. The opinion of the Court was delivered by HUSTON, J. Abraham Levan brought this action against both defendants. A rule for arbitration was entered arbitrators chosen, and a report made against both for $165.64. Frahn, who is stated to be insolvent, acquiesced. Anderson appealed, and, after objections, a jury were sworn, and a verdict against him for about the same sum with interest. The first error assigned amounts to this : the report of arbitrators became a judgment as to Frahn, and there cannot be two judgments on a claim against two jointly. Admitting this to be true at common law, it in this state is changed by Act of Assembly. Every suit may be arbi- trated under our Act of Assembly by plaintiff or by defendant ; when two are sued, and the cause is arbitrated, under this law, either party may appeal. The one defendant appeals perhaps the only solvent one if there can be no verdict and judgment i. 43 2n SUPREME COURT [Hamsburg [Anderson v. Lcvan.] against him, and the judgment is reversed, the plaintiff has lost his debt. That there cannot be two judgments against two de- fendants obtained at different times in the same action, is a rule, but a purely technical one ; and the courts or the legislature ought to provide for two executions going on in the same suit, in such a case as this ; as two executions for the same debt can go on at the same time for the same debt against joint and several obligors, or drawers and endorsers of the same note. On the 3d of December 1836, Frahn and Anderson entered into articles of agreement " to buy wheat ; Mr. Frahn will go to Philadelphia, and purchase wheat with money furnished by Anderson. Frahn will have it brought from Philadelphia, and grind it into flour, and sell it to the best advantage ; the expenses are to be deducted from the proceeds, and the balance equally divided for profit or loss. It is understood that Mr. Frahn is not to charge for grinding, over what he may have to pay hire." There was then evidence that, during the whole of 1837, Ander- son was at the mill every week examining the books ; that a good deal of grain, during the spring and summer of 1837, was pur- chased from boats coming from the west, as well as in Philadel- phia; that not much grain was got in the neighbourhood. It was then proved that Frahn openly and repeatedly said An- derson and he were in partnership ; that Anderson showed bills of wheat bought in Philadelphia for Frahn and Anderson ; that they in 1837 bought and sold other grain beside wheat; that Frahn refused to make contracts for flour until he saw Anderson ; that when a note was given for the price of flour, Anderson en- dorsed it, and said he was entitled to the money, and drew the money. All this evidence was objected to, particularly the arti- cles of agreement and Frahn's declarations, but it was received. A partnership may be proved in various ways, by writing, or by the acts of the parties ; a partnership, confined by the terms of the agreement to a specific subject of trade, may, in actual prac- tice, with full knowledge of both parties, be extended to other matters. It was allowable to prove that, with Anderson's know- ledge, wheat was bought from western boats. The proof was, that all the grain bought and sold, was entered in books, and that Anderson every five days inspected them. Early in the cause, and all through it, there was a dispute whether Anderson was or was not a dormant partner. Frahn's declarations, on many occa- sions, were evidence on this point. In May 1837, there was given to Levan the following paper : " May 12th, 1837. "Due Abraham Levan, for wheat to the amount of four hundred and forty-one dollars, 87^ cents. " JOSEPH FRAHN." Defendant gave in evidence, a note under seal produced by plaintiff, on notice : May 1841.] OF PENNSYLVANIA. 339 [Anderson v. Levan.] " I promise to pay unto Abraham Levan, or order, the sum of 441 dollars, 87 cents, on demand, with interest till paid, for value received. Witness my hand this 4th July 1837. " JOSEPH FRAHN. [ SEAL. ]" On this were endorsed, " November 17th, 1837, received on within, $200. " January 29th, 1838, received on within, $100." Defendant then gave in evidence articles of agreement, Janu- ary 1st, 1838, between Anderson and Frahn, to carry on the milling business five years, under the name of Frahn & Ander- son. Also, a written agreement, 14th of May 1838, dissolving this partnership by mutual consent. After this testimony was heard, and the argument of counsel concluded, the plaintiff had leave to amend his declaration ; this is expressly authorized by our Act of Assembly, and has been so often decided by this court, that it ought no longer to be set before us as an error. The case of Sheehy v. Mandeville (6 Cranch 263) was cited, and was relied on by the court ; and, for myself, I could wish that case had not been overruled. There is something so unfair in a man receiving the profits of a concern for years, and if mis- fortune happens, concealing his interest, and leaving third persons to bear the loss, that I think its justice might have supported it ; but it has been overruled in New York, and in this state (9 Serg. fy Rawle 142,) in a court of law, and in 4 Johns. Chan, cited in the last case, and which I have examined, in Chancery, and by Judge Washington, one of the judges who decided it, in Peters's C. C. Rep. 301; so that it must be considered settled, that if the known partner is sued, and judgment and execution against him, without satisfaction, a dormant partner, afterwards discovered, cannot be made liable. The other point, that taking a specialty from one partner ex- tinguishes all claim against the other partners, seems equally well settled. In the argument of counsel in support of the doctrine of Sheehy v. Mandeville, it is admitted, a bond taken from one part- ner extinguishes the claim, on simple contract, against the firm ; in 2 Johns. 213, 220 it is expressly decided; in 4 Johns. 265, 268 is assumed as settled law; in Peters's C. C. Rep. 301, above cited, Judge Washington says, " a judgment against one partner extin- guishes the simple contract debt as completely as if one had given his bond for it." Judge Story, (1 Mason 505) doubts the justice and policy of this law ; but the opinion of one judge, however respectable, is not to be set in opposition to the whole amount of decisions. On the whole, my brother judges all concur in say- ing there is error on both views, whether Anderson be considered 340 SUPREME COURT [Harrisburg [Anderson v. Lcvan.] a dormant partner or not. Indeed, the judge in the Common Pleas says, the plaintiff cannot recover if Anderson was known to be a partner. Judgment reversed. Bitzer against Shunk. A partner has no power to bind his co-partner by a confession of judgment against the firm : but if such a judgment be confessed, it will bind the partner who did it, and be void as to the other. ERROR to the Common Pleas of Dauphin county. Samuel Bitzer and James H. Devor, against Christian Shunk and Joseph Bauman, trading under the firm of Shunk & Bauman. Amicable action entered in the Common Pleas of Dauphin county. Whereas Joseph Bauman drew his certain promissory note, dated 13th day of July one thousand eight hundred and forty, wherein and whereby he promised to pay to the order of the said Christian Shunk, at the Harrisburg Bank, twelve months after the date thereof, the sum of six hundred and fifty dollars, which said note was endorsed by the said Christian Shunk, and afterwards by the said Samuel Bitzer & James H. Devor, and delivered to H. & J. E. Barnitz, who discounted the same for the use of the said Joseph Bauman & Christian Shunk, the proceeds of which said promissory note afterwards went into, and was appropriated to the use and business of the said firm of Shunk & Bauman, now, for the purpose and with the intention and design of indemnifying the said Samuel Bitzer & James H. Devor, and saving them harmless against the payment of the aforesaid promissory note, I hereby agree that the above stated action be entered of record in the Common Pleas of Dauphin county; and I hereby appear to the same for myself, and for my partner, the said Christian Shunk, and for the said firm of Shunk & Bauman, and confess judgment thereon in favour of the said plaintiffs, against the aforesaid firm of Shunk & Bauman, for the sum of seven hundred dollars, to be considered cautionary, and as indemnity to the said plaintiffs for any loss, costs and expenses, which they may incur by reason of their endorsement of said promissory note, with right to issue execution only from the time they or either of them shall have sustained, and for the amount only so sustained, and paid. May 1841.] OF PENNSYLVANIA. 341 [Bitzer v. Shunk.] In witness whereof, I have hereunto set my hand, this eighth day of September one thousand eight hundred and forty. Jos. BAUMAN. Witness present, JOHN M. WOODBURN. Upon the affidavit of Christian Shunk, one of the defendants, the court below set aside this judgment, on the ground that one part- ner had no power to confess a judgment against the firm, and that it was, therefore, void as to Christian Shunk, and being void as to one, it was so as to both. Devor, in propria persona, argued that one partner might em- ploy counsel and authorize him to confess a judgment against the firm, which is but an assertion of the principle, that he may give a warrant of attorney. This case was but an authority by one partner to the prothonotary to enter a judgment in pursuance of the Act of 21st March 1806, Sec. 8. See also 12 Serg. $ Rawle 13. But, be this point as it may, clearly the judgment was good as against him, who confessed it. 2 Caines 254; 2 Win. Blac. 1133;' 1 Wend. 311, 326; 3 Doll 331; 1 Ball 119. M'Cormick, contra, contended that a judgment against two cannot be made a judgment against one only, nor can it be re- versed as to one and affirmed as to the other. 6 Serg. fy Rawle 18; 2 Bac. M. 500; 10 Watts 51. The opinion of the Court was delivered by KENNEDY, J. We think the court below were right in deciding that the written authority given by Joseph Bauman alone, to enter an amicable action therein, and confess a judgment against himself and his co-partner, Christian Shunk, in favour of the plaintiffs, was not sufficient for that purpose. But we are of opinion, that the court erred in setting the judgment aside as against both on that ground. It was, undoubtedly, a good reason for setting the judgment aside, or vacating it, as against Shunk, but not as against Bauman. And what makes this still more clear here, is, that Bauman does not object to the judgment remaining against him alone. Nor could he do so with any propriety, because he had most unquestionably a right to authorize the confession of the judgment against himself, and the circumstance of his not having a power from Shunk to join him in the confession, furnishes no reason whatever, why the confession of the judgment should not be good and binding a such, against himself. If he had executed a deed in the name of both, without any authority from Shunk to do so, it would not be pretended that such deed was not binding upon himself, as his deed alone, though it could not be considered the deed of Shunk. The object and design of entering the judg- I. 3D* 342 SUPREME COURT [Harrisburg [Bitzer v. Shunk.] ment is admitted to have been perfectly honest and fair; but as no special authority was given by Shunk to Bauman, to confess or authorize the confession of a joint judgment against them both, and as no general authority to that effect could be implied, because it was wholly unnecessary that the one partner should have such an authority from the other for the purpose of carrying on and transacting the business of their partnership, the judgment was consequently improperly entered against Shunk ; but upon no principle of justice can it be said to be so as against Bauman. The only objection is one of form at most ; which is, that Shunk ought not to have been joined in it, but that it ought to have been entered against Bauman solely. But it is clear that it does not lie in the mouth of Bauman to make this objection against the judgment, even if he were disposed to do so, because he was him- self the cause of it ; and in the next place, it is not an error that does him any injury. Shunk alone is the one who has the right to object to it, as he was joined in it without his consent, or any authority given by him for that purpose; but he at most can not ask any thing more, than that the judgment be vacated as to him, or his name stricken from the record of it. This is all, we think, that the court below ought to have done, as the application to them was not to be regarded in the nature of a writ of error, but as a motion made to the court, for the purpose of having the judgment corrected according to the authority under which it was entered. For this course, instead of setting the judgment aside altogether, they had the authority of the case of Motteux v. St. AuUn, (2 BL Rep. 1133) and Gerard v. Basse (1 Dull 119.) The order, made by the court below, setting the judgment aside, is therefore reversed, and the name of Christian Shunk is ordered to be stricken out of the judgment, and the record of it, so that there shall remain a judgment against Joseph Bauman alone. Judgment accordingly. Leonard against Leonard. If an agreement of settlement between partners be set aside, in an action upon it, on the ground of fraud in obtaining it, the parties are thereby restored to their original rights and liabilities, and an action of account render will afterwards lie by one against the other. ERROR to the Common Pleas of Juniata county. Elijah Leonard against Andrew Parker, executor of Andrew Leonard, deceased. The plaintiff and defendant's testator had been partners, and May 1841.] OF PENNSYLVANIA. 343 [Leonard v. Leonard.] on the 28th of March 1831 entered into the following agreement of settlement : " Agreement, as follows : Andrew and Elijah Leonard hath this (day) by agreement, concluded to settle all their accounts of every description from the beginning up to this time, and the agreement is that Andrew pay to Elijah, on the 1st day of April 1832, two hundred dollars, and two hundred and fifty dollars on the 1st day of April 1833, with interest from April 1832 Andrew Leonard to own all property of every description that is personal he is to collect all the debts due him and Elijah, (canal debts ex- cepted) and to pay all debts due or to become due, (canal debts excepted) Elijah to pay half of the widow's dower. Andrew has the right to collect all the money due from David Mi I liken. Eli- jah is to have his grey mare, saddle and bridle, and all his clothes. The understanding is that Elijah is to pay his half of the demand due his mother by notes given to her, and if any demand for dower after the notes given his mother can be recovered, Elijah is to pay his part according to the valuation of his property, being real estate. The bargain as respects the saw-mill is, the timber sawed for Andrew is to be clear of charge, and any logs Andrew has not sawed, he is to have the right, and to saw twelve logs besides Elijah to pay rent of saw-mill. This agreement to be final and con- clusive of every kind of accounts between the parties, and no appeal or after hearing to be granted or asked by either party. In tes- timony whereof, we have hereunto set our hands and seals, this 28th of March 1831." Upon this agreement an action of assumpsit was brought by Elijah Leonard against Andrew Leonard, in his lifetime, to May Term 1834, to which the defendant pleaded non assumpsit and payment with leave to give the special matter in evidence. Re- plication non solvit and issues. Upon the trial of the cause, the defence was that the agreement was obtained by fraud on the part of the plaintiff: and on this ground it was referred to the jury with the instruction from the court, that if the agreement was obtained by fraud on the part of the plaintiff, they should find for the defendant; and a verdict and judgment were rendered for the defendant. The plaintiff then brought this action of account render, to which the defendant pleaded the former action of assumpsit in bar. To rebut this, the plaintiff called a witness and offered to prove by him that he was a juror on the trial of the action of assumpsit, and that the verdict was given in pursuance of the instruction of the court exclusively on the ground that the agreement was fraud- ulently obtained, and that the respective claims of the parties were not considered. The defendant objected to this evidence, on the ground that a 344 SUPREME COURT [Harrisburg [Leonard v. Leonard.] juror was not competent to testify the ground of a verdict : that it is not competent to show in any way but by the record what was the result of an action : that the verdict and judgment are conclusive of every thing that was or might have been tried. The court sustained the objections, and sealed a bill of excep- tion at the instance of the plaintiff. The plaintiff requested the court to instruct the jury upon the following points : 1. That in this action they ought to find a verdict for the plain- tiff, unless they believe that the sum of $450, secured to Elijah by the article of agreement of the 28th of March 1831, has been paid to Elijah by Andrew Leonard. 2. That, as in the action No. 7, of May Term 1834, it appears by the record given in evidence, that there was no evidence of any thing having been paid by Andrew to Elijah Leonard, and that the cause was laid before the jury by the court entirely on the ground of fraud, on the part of Elijah, in procuring Andrew to enter into the article of 28th of March 1831, the plaintiff is entitled to a verdict in this case. 3. That the fact of the jury having found the article of 28th of March 1831, to have been obtained by fraud, only destroyed the validity of that article, and set it wholly aside ; but did not and does not destroy the right of Elijah Leonard to recover in this ac- tion on the just rights of the parties. BLYTHE, President. I cannot divest my mind of the impression that the plaintiffmust stand or fall by his agreement of the 28th of March 1831 ; and if he has been defeated in his action of assump- sit on that agreement, on the ground of his own fraud in procur- ing it, he cannot now be permitted to turn round and reap an ad- vantage from it in the shape of another action. It would ill be- come a court of justice to take a single step to save harmless a party detected in a fraudulent attempt to cheat. A contrary doc- trine is one to which I cannot subscribe. A man might gain, but he could not lose by his fraud. If he had succeeded in his action of assumpsit, he would have reaped the fruit of his knavery per- haps ; and when detected, if he is to be reinstated in his original rights, and to be reimbursed all that, in any event, he could be entitled to, certainly a man cannot lose and may gain by his own knavery. This is not the law : (see 2 Watts 67, 68.) I therefore answer plaintiff's points in the negative. Isaac Fisher, for plaintiff in error, argued that the agreement of the 28th of March 1831, did not extinguish the original liabil- ity of the parties to each other as partners, and cited 4 Watts 379, 453; 11 Serg. $ Rawle 152; 15 Serg. fy Rawle 162; 10 Serg. # Rawle 315 ; 5 Whart. 537. But the defendant's testator disavowed the validity of it, and succeeded in defeating it ; shall he now be permitted to set it up to defeat the just rights of the parties ? Even May 1841.] OF PENNSYLVANIA. 345 [Leonard v. Leonard.] if the plaintiff had obtained that agreement by fraud, it is no reason why justice should never after be administered to him. Reed, for defendant in error. It clearly appeared that the plain- tiff's cause of action, in the former suit, was to recover the amount due to him as a partner. In this action he claims the same thing. It is clearly settled that a verdict and judgment are conclusive as to all that was or might have been tried in the action. 4 Binn. 61 ; 1 Penn. Rep. 152. But the plaintiff cannot recover in this action but by alleging his own fraud, which he will not be per- mitted to do. The opinion of the Court was delivered by SERGEANT, J. The settlement of accounts between these par- ties on the 28th of March 1831, would undoubtedly be a bar to the present action of account render, were it not that the defend- ant himself procured that agreement to be set aside on the ground of fraud in the plaintiff at the making of it. That fraud had the effect of preventing the plaintiff from recovering on the agreement : but it was the defendant who alleged it ; and the necessary con- sequence of the defendant's thus rescinding that agreement, was to restore the parties to their original situation. It would be un- just that the defendant, after succeeding in barring the plaintiff's claim on the agreement, on the ground that it was null and void, should set it up now to prevent an inquiry into their mutual rights, thereby retaining in his hands the great bulk of the partnership property, without accounting for any portion of it. It is true, if the merits of the accounts had been inquired into and decided upon in the former action of assumpsit, they ought not again to be called into question in this suit : and they may have been in- quired into, under our loose system of pleading, by the assent of the parties, though strictly irregular ; but it would rather seem, from the charge of Judge Blyihe, that the ground on which the plaintiff failed was fraud in the plaintiff in concealing a sum of $15, which he had received prior to the agreement : and we are not able to perceive, from the evidence before us, that the state of the accounts was gone into and determined. All that we can pronounce to have been done, was to rescind the agreement and declare it null and void. That being the case, the original rights of the parties revived, and justice would require that they should be settled. Judgment reversed, and venire facias de novo awarded, i. 44 346 SUPREME COURT [Harrisburg Zimmerman against The Union Canal Company. The obstruction or deepening of the waters of a stream which is a public high- way, by authority of an Act of Assembly, is not the subject of a claim of dam- age by the owner of the adjoining land for an injury done to or destruction of a fording across the stream. Damages done to land by the construction of the Union Canal, and works ap- purtenant to it, must be estimated as of the time when done; and a subsequent purchaser of the land cannot maintain a proceeding to recover damages done to him. APPEAL from the decision of the Quarter Sessions of Leba- non county. Jacob Zimmerman against The Union Canal Company. At January sessions 1840, the plaintiff presented his petition to the court setting forth that he was seised of a tract of 140 acres of land, &c., in Anville township, Lebanon county, which had been injured by the erection of a dam, constructed by the defend- ants for their works, whereby the water was swelled upon the plaintiff's land, and a fording adjoining the same, which he was accustomed and entitled to use, was injured. He laid his seisin as of the 13th of March 1837, and the commencement of the erec- tion of the dam as of the 1st of March 1837. A venire facias was awarded to the sheriff of Lancaster county, who, upon the 4th of April 1840, took an inquisition, in which the inquest found that the plaintiff had sustained damages by reason of the over- flowing of his land to the amount of $200, and by reason of de- stroying the ford to the amount of $130, making the entire find- ing$330. This inquisition having been returned at April sessions 1840, a confirmation nisi was entered, and exceptions being filed, a rule was obtained on behalf of the defendants to show cause why the inquisition should not be set aside. The following are the exceptions filed : 1. The petitioner, Jacob Zimmerman, was not seised or possess- ed of the premises injured or damaged, when the works of the Union Canal Company, which caused the said injury or damage, were erected ; but became the owner thereof by purchase, many years subsequent to the erection of said works. 2. The jury have allowed damages for injury to a fording over the Swatara creek, occasioned by a swelling of the waters of said creek, and increasing their depth ; which swelling of the waters of said creek, and increasing their depth, was occasioned by the erection of a dam by the Union Canal Company of Pennsylvania, May 1841.] OF PENNSYLVANIA. 347 [Zimmerman v. The Union Canal Company.] about a mile below the premises of the said Jacob Zimmerman, which dam did not touch the said premises, nor were they touch- ed by any other of the works of said company; and the said Swa- tara creek was, at the time of the erection of said dam, and has been ever since the year 1771, and still is, a public highway. 3. The petition or complaint of said Jacob Zimmerman sets forth, that on or about the first day of March 1837, the Union Canal Company of Pennsylvania located their canal and other works on the land in question, and then and there did construct a dam across the Swatara creek, by which the injuries complained of were done ; whereas in fact, the said company never did locate their canal nor any of their works on said land, but erected the same about a mile below the said land ; the jury have therefore assessed damages for matters different from those set forth in the petition or complaint. 4. The premises, for injuries to which the said Jacob Zimmer- man complained, were held by the said Jacob under a convey- ance from his father, Godfried Zimmerman, dated 13th of March 1837 ; and the said Godfried at the same time with the said Jacob, applied for, and obtained from the court, a venire to the sheriff of Lancaster county, to summon a jury to assess damages claimed by him, the said Godfried, to the land still owned by the said Godfried; which land, along with the premises so conveyed to his son Jacob on the llth of March 1837, as above mentioned, formed one entire tract, the whole of which was owned by the said Godfried at the time the works of the Union Canal Company, that occasioned the injury (if any), were erected; and continued in his ownership until 1837, about eleven years after said works were erected; one claim was thus split or divided into two, and the company subjected to additional costs, although all the injuries to the whole of the premises thus origin- ally owned by said Godfried wfere caused by the same works of the said company ; and the jury summoned in the case of the said Godfried, assessed damages against the said company for the in- juries complained of by him ; thus, in fact, causing two verdicts or assessments of damages for one cause of action or complaint. By the evidence adduced in support of the exceptions, it appeared that in the year 1827, the Union Canal Company of Pennsylvania constructed a dam across the Swatara river, or creek, about a mile below the premises alleged to have been injured, which swelled back the water in the stream, where it passed along, and formed the boundary of the premises alleged to have been injured. The fording of the creek complained of, was where a road crossed it a road that leads from the Lebanon and Harrisburg turnpike at Light's mill to Hanover. The record of this road was not found ; but it was stated to have been worked by the public, and it was recollected as a road in use as far back as 1814. The road crossed the Swatara at the lands of the plaintiff; whose lands, however, 348 SUPREME COURT [Harrisburg [Zimmerman v. The Union Canal Company.] did not lie on both sides of the stream. The plaintiff went into possession of the land alleged to have been injured, subsequently to the completion of the dam, and probably not long before 1837, and received the title therefor on the 13th of March 1837. His father, Godfried Zimmerman, owned a large tract of land where the dam was erected, of which he conveyed to the plaintiff the one hundred and forty acres which he now owns; and the father still owns the residue, and has instituted proceedings and obtained a judgment for the damages which he alleged he sustained by reason of the injury done to the part owned by him. The Swatara was declared a public highway as far up as Peter Ritter's mill-dam, (now Weidman's forge) by Act of the 9th of March 1771. And the Act so declaring it a public highway, authorizes the commissioners therein named " to remove all ob- structions then erected, or that might be thereafter erected there- in, and to scour, enlarge, straighten, and deepen the same in any part or place where it shall appear most convenient for opening, making anew, or improving the channels ; and also to cut, blow up, remove, or take away all trees, rocks, or beds of gravel, sand, or mud, wears, dams, baskets, grounds, stones, or any other impedi- ment or obstruction whatever ; and to form, make, erect and set up any dams, pens for water, locks, or any other works whatsoever, which they shall think fit and convenient to answer the purpose aforesaid ; and to alter, repair, or amend the same as often as it shall be necessary or convenient; and also to appoint, set out, and make tow-paths or ways for towing, hauling, or drawing of boats, vessels, or other small craft and rafts of any kind whatso- ever, in, upon, or through the said rivers and streams, which said paths shall be free and open to all persons whatsoever having oc- casion to use the same ; and from time to time, and at all times hereafter to do, execute, and perform all and every other matter or thing, in the said rivers and streams, necessary or convenient for making, maintaining, and continuing the navigation in the same." By the Act, passed 2d of April 1811, entitled an Act to incor- porate the Union Canal Company of Pennsylvania, the former companies for the construction of a canal and navigation between the Susquehanna and Schuylkill, and the Schuylkill and Dela- ware, were consolidated under the title of " The Union Canal Company of Pennsylvania," and the company so incorporated was authorized to open a complete canal and lock navigation from one or more points on the river Susquehanna to the tide water of the Schuylkill or the Delaware,or both, or by erecting small wing-dams to raise the water of the river Schuylkill, and taking the water on either side of and out of the said river, by means of a wing-dam, canal, lock, or other device, or by taking the water of the said river at any place or places which to them may seem most suita- ble on either side of the same, and thence to conduct the water May 1841.] OF PENNSYLVANIA. 349 [Zimmerman v. The Union Canal Company.] thereof, by means of a canal, in such route as they shall find most practicable, economical, and most conducive to the general objects of the proposed navigation, down to the tide water of the said river Schuylkill, or by means of canals, locks, or any other suitable means and devices, to continue at any time hereafter, during the continuance of the powers thereby granted, the navi- gation from Reading, or any other place, through the interior country, on either side of the river Schuylkill, and by making use of the waters of the said river Schuylkill, or of the Maxatawney, Perkiomen, French creek, or any other creeks or streams on the intended route of the said canal, to a proper place of entry into the river Schuylkill or Delaware, or both, on the north side of Philadelphia : and to make such and so many locks, basins, reser- voirs, collateral cut or cuts, and channels, as they may think pro- per, and to erect one or more wing-dams from either side of the said river Schuylkill, at such place or places where they shall commence any of their canals, extending up the stream, but not more than one third across the same, nor so as to render the navi- gation thereof dangerous, by forcing boats or rafts on the oppo- site shore, or on rocks or shoals, which might otherwise have been passed in safety." The 12th section of the Act provides, that whenever the said canal shall cross any public or private laid out road or highway, or shall divide the grounds of any person into two parts, so as to require fords or bridges to cross the same, the said president and managers shall be at liberty, as they may think proper at any time hereafter, either to build bridges, or to cause fords to be rendered practicable and fit for the passage of carts and wagons : and the bottom of the said fords shall be made of stones or wood, and the water of any such fords shall not be deeper than thirty inches, and the breadth of such ford shall be twelve feet at the least, and whenever any such bridge or bridges shall have been erected, either to repair the same, or cause a ford to be made in lieu thereof. The 13th section provides, " that, if in the opinion of the president and managers of the Union Canal Company of Pennsylvania, the introduction and use of any different mode or device, or any improvement hitherto adopted, or such as may here- after anywhere be invented in the system of internal navigation, will be beneficial, it shall be lawful for them to make use of, and employ the same from time to time ; and, as well for such purposes as for the necessary prosecution of the same, the said president and managers, and their engineers, workmen, and labourers, to enter into and upon all and singular, the land and lands intended or sup- posed to be the proper route for the said canal and lock naviga- tion : and shall have the power to purchase so much land along the tract of the canal, and adjacent thereto, and tenements, mills, mill-ponds, water, water courses, or other real hereditaments, as shall, in their opinion, from time to time be necessary; and in default I. 2E 350 SUPREME COURT [Harrisbvrg [Zimmerman v. The Union Canal Company.] of purchasing, it shall be lawful for the Courts of Quarter Sessions, or the Mayor's Court, in the city of Philadelphia, ON THE APPLI- CATION OP THE OWNER of the said ground, or of the president and managers, to appoint three suitable and judicious persons of any neighbouring county, at their discretion, or at the request of either party, to award a venire, directed to the sheriff of any adjoining county, to summon a jury of disinterested men, in order to ascer- tain and report to the court what damages, if any, have been sustained BY THE OWNER OF THE SAID GROUNDS, by reason of the said canal or other works ; which report being confirmed by the court, judgment shall be entered thereon, and execution, on mo- tion, may be issued, in case of non-payment of the money award- ed, with reasonable costs to be assessed by the court. And it shall be the duty of the jury, in valuing any lands, tenements, or hereditaments, to take into consideration the advantage derived to the OWNER or OWNERS of the premises from the said navigation passing through the same." The court below set aside the finding of the inquisition upon grounds fatal to the plaintiff's recovery, and delivered the follow- ing opinion, which was the subject of review : PORTER, President. In regard to so much of the finding of the jury, as relates to the fording, there is clearly error. According to the language of C. J. Tilghman, in Hughes v. Heiser, " the gene- ral principle has been always agreed, that for an obstruction to a public highway, which is a common nuisance, an action cannot be supported but by a person who has sustained some SPECIAL DAMAGE," although it will be immaterial whether it was imme- diate or consequential. If the plaintiff has sustained any damage in regard to the fording, it is by what would, but for the special enactments in the law, incorporating the defendant, be a nuisance against the public in two respects : first, by the erection of the dam in the Swatara, a public highway ; and secondly, by such dam deepening the water where the road in question crosses it, and thus obstructing the road, which we are disposed to treat as a public highway, under the evidence and admissions in the cause. There is no averment of any special damage sustained by the plaintiff, in consequence of deepening the fording by the swelling of the water from the dam. The public would have an undoubted right to deepen any of our navigable streams for the purpose of improving the naviga- tion thereof, although such improvement might destroy every ford- ing across them. Ft is true it is improving one public highway at the expense of another, but the lesser convenience is made to yield to the greater. This the public has an undoubted right to do, in providing for the general good. The control of our streams is an attribute of the sovereignty of the country part of the " eminent domain" subsisting in the sovereign power, to borrow a term from the civil law. May 1841.] OF PENNSYLVANIA. 351 [Zimmerman v. The Union Canal Company.] In MClenachan v. Curwin, (3 Yeates 373 ; 6 Binn. 514) the Su- preme Court of Pennsylvania, after affirming the right of the commonwealth to apply a portion of every man's land for the purpose of laying public roads and highways, without compensa- tion, such compensation having been originally made in each pur- chaser's original grant, say, " but it is objected that even if the legislature might do this themselves, yet they could not grant the right of doing it to individuals or a corporate body for their own emolument, so as to deprive the inhabitants or travellers of the free use of the road, by imposing tolls or other restrictions in the use of it. To this it may be answered that such an artificial road, (the Philadelphia and Lancaster Turnpike) being deemed by the legislature a matter of general and public utility, and considering that it was not to be effected but at a considerable expense, and that the expense could not be defrayed, nor expected to be de- frayed in the ordinary way by the inhabitants of the several town- ships through which the road was to run, they divide this mode of accommodating the public with such a road at the expense of private individuals, who, from a prospect of deriving some small profit to themselves, might be induced to do it. It was immaterial to the public, whether it was done by a general tax, to be laid on the people at large, or by the gradual payment of certain specified sums, by way of tolls upon those who used the road only : the lat- ter being considered as the most equal mode of defraying the charge of making and keeping such road in repair. For although every man has a right to the free use of a public road, yet every member of the community may be taxed for making that road in any manner that the legislature may think reasonable and just." The same doctrine has been applied to the improvement of our streams. The Union Canal Company, as is seen, has been author- ized to improve the navigation of the Swatara and Schuylkill rivers. The Schuylkill Navigation Company has also been authorized to improve, and has improved the navigation of the Schuylkill from Mill creek to Philadelphia. The Lehigh Coal and Navigation Company have been authorized to, and have improved the navigation of the Lehigh from the Great Falls to Easton. Maurice Wurts was authorized to improve the Lackawaxen from the Dyberry Fork to the mouth, and the work has since been done by the Delaware and Hudson Canal Company, in virtue of a transfer of the rights of Maurice Wurts, sanctioned by a subse- quent Act of Assembly. The river Monongahela is now being improved by a company incorporated for that purpose. The rules of the common law of England in regard to the rivers and the rights of riparian owners, do not extend to this common- wealth, for this plain reason, that rules applicable to such streams as they have in England, above the flow of the tide, scarcely one of which approximates to the size of Swatara, would be inappli- cable to such streams as the Susquehanna, the Alleghany, the 352 SUPREME COURT [Harrisburg [Zimmerman v. The Union Canal Company.] Monongahela, the Ohio, the Delaware, and many of their tributa- ries. Carson v. Blazer, (2 Binn. 475) ; Shrunk v. The Schuylkitt Navigation Co., (14 Serg. 4* Rawle 72) ; Ueberroth v. The Lehigh Coal and Navigation Co., (7 Hazard's P. Reg. 292). The law of Penn- sylvania therefore seems settled, that the common law doctrine of England, which only deems a river navigable or a public highway as high up from the mouth as the tide flows, cannot be applied to our large streams, such as the Ohio, Alleghany, Delaware, Schuyl- kill, Susquehanna or its branches ; nor does the soil under such rivers belong to the riparian owners, but to the commonwealth. The act incorporating the Union Canal Company of Pennsylva- nia, like most similar laws, provides a mode by which the claims of all persons injured shall be examined and decided. It is re- markable, however, that in the act in question, perhaps in it alone of all the enactments on the subject, no appeal is given to either party from the decision of the inquest. Still, the mode designated in the Act must be pursued in the assessment of damages for in- juries committed. In a case of a similar nature, or growing out of a somewhat similar law, (The Lehigh Bridge Co. v. The Lehigh Coal and Navigation Co., 4 Rawle's Rep. 23) Chief Justice Gib- son says, " The legislature evidently meant to provide for nothing that was not remediable at the common law, and on the other hand it was intended that every common law injury should be redressed by the statutory remedy ;" and such undoubtedly is the true construction of the Act in question. If the spirit and meaning of the 12th section of the Act, incor- porating the defendants, covers the case of a public road crossing the stream of the Swatara, where it may be flooded by a feeder dam, then the company would be compellable to erect a bridge, or to construct a ford, agreeably to the provisions of that Act ; and the Court of Common Pleas of the proper county would, under the powers given them to supervise and control corporations, compel them so to accommodate the public. The court express no opinion on this subject, as that point does not necessarily arise in the present cause, but refer to it to show that if the public have a claim on the defendants, they are not without remedy. So, too, in case the canal to be constructed shall divide the lands of any individual into two parts. In such cases, they are bound to construct a ford or bridge for every such individual; and the courts would compel them to do so. This, however, is not the case of the canal dividing the lands of an individual, nor even the case of rendering a ford over a public highway, which had pre- viously divided the lands of an individual, less practicable. In either of which cases it may be worthy of consideration whether, so far as the Act applies, the proper course is not a specific per- formance of the directions of the Act, rather than a claim for damages for not conforming to them. It seems, however, to be but in accordance with the decisions made upon the subject, that May 1841.] OF PENNSYLVANIA. 353 [Zimmerman v. The Union Canal Company.] it is one of the incidents to holding property on one or both sides of a navigable stream that the party is subject to, any inconveni- ence that may arise from deepening the channel, or otherwise im- proving the navigation of such stream, is to be submitted to, without any right to damages therefor, except as such improve- ment may flood or drown their lands. See Shrunk v. The Schuyl- kill Navigation Co., and Ueberroth v. The Lehigh Coal and Navigation Co., before cited ; and see also, Commonwealth v. Fisher, (1 Penn. Rep. 467,) in which latter case Justice Huston, in delivering the opinion of the court, says, " all within the chan- nel of the river, is a public highway, except the islands. The state, for the purpose of improving the natural channel, or making an artificial one, may make it deeper in some parts, and drain or make shallow other parts ; or it may raise dams partially or en- tirely across the river, and thus swell the water, and this may constantly or occasionally cover a spring rising below high water mark ; or may deepen the water at the outlet of a spring above high water mark, and thus occasion it to be covered oftener with back water. All this it may do ; and he who used the water of that spring, MUST SUBMIT TO IT AS AN EVIL, INCIDENT, LIKE MANY OTHER EVILS AS WELL AS ADVANTAGES, TO A SITUATION ON THE BANK or A LARGE NAVIGABLE STREAM." And again, in the same case, " the state never sold any land below high water mark." C. J. Tilghman, too, in Shrunk v. Schuylkill Navigation Com- pany, says, " as for the soil over which our great rivers flow, it has never been granted to any one, either by William Penn or his successors, or the state government. Care seems to have been taken from the beginning, to preserve the waters for public uses, both of fishery and navigation ; and the wisdom of that policy is now more striking than ever, from the great improvements in navigation already made, and others in contemplation, to effect which, it is often necessary to obstruct the flow of the water in some places, and in others to divert its course. It is true that the state would have had a right to do these things for the public benefit, even if the rivers had been private property; but then compensation must have been made to the owners, the amount of which might have been so enormous as to have frustrated, or at least checked, these noble undertakings." The remaining objection, that the plaintiff was not the OWNER of the premises at the time of the erection of the dam, is equally fatal to the proceedings. The term OWNER is that used throughout the Act. It is to the owner at the time of the commission of the injury, that damages are to be awarded. In The Schuylkill Navigation Co. \. Tho- burn, (7 Serg. Also the said Elizabeth. ) In $2484.50. Recognizances of the same persons at same time ) T to Jaco! Starr. j In same sum ' Recognizances of the same at same time to Fre- ) T derick Long, guardian of Magdalena Starr. \ l Each conditioned to pay recognizees $2484.38.8, on or before the 29th of August 1804, with interest, if not already done ; also 404 SUPREME COURT [Harrisburg [Shouffler v. Coover.] the further sum of $1242.20.4, to said recognizees after the death of the widow of John Starr. Acknowledged 7th of April 1807, in open court, agreeably to a rule of court this day made and filed in the writ of partition. 8th of December 1817, satisfaction for $2484.38.8, on recognizance of Henry Coover and wife. The memorandum of the clerk, showing the calculation of the amount of the valuation, and each distributive share, is in the pigeon-holes of the clerk's office, con- taining the calculation of several estates returned at the same term. The following is a full copy of all that relates to this estate : Release from Frederick Long, filed 17th of March 1828, for the sum due before the death of the widow, dated 29th of February 1808. Estate of John Starr. Amount of valuation - - - - $14947 97 Deduct costs 40 44 Clerk $9 10 Attorney 8 00 ) 14807 50 Sheriff 23 26 4044 Widow's share, 4964 17 69938 35 2 To be deducted from ) Each child, 2484 38 84968 77 6 Widow's share. \ Each child after widow's death, 1242 29 42484 58 8 The tract of woodland referred to in the petition of William Starr, was afterwards valued and appraised, on the petition of Jacob Starr, in December 1808. 16th of May 1809, confirmed to Jacob Starr recognizances entered into. On the 15th of Feb- ruary 1804, William Starr covenanted to convey to Jacob Starr 200 acres and allowance of the first-mentioned tracts of land, re- citing that it was taken by William at the appraisement, &c. William Starr having died before deed made, on the petition of Jacob Miller, his administrator, the contract was duly proved in the Court of Common Pleas, and he authorized to make a deed, which was done 2d of April 1806, in due form. On the 14th of February 1804, William Starr also covenanted with Henry Coover, to convey to him 201 acres 17 poles and allowance of same tracts of lands ; and, on the 19th of February 1807, Jacob Miller, his administrator, executed a deed for the same in due form, the contract having been duly proved, and a decree of the Court of Common Pleas made for the purpose. April 7th, Jacob Starr by deed conveyed to Jacob Shelly the same lands, &c., by mates and bounds, which were conveyed to the said Jacob Starr by Jacob Miller, administrator of William Starr deceased, by deed before referred to, dated the 2d day of April 1806, consideration $2000. There is no reservation in May 1841.] OF PENNSYLVANIA. 405 [Shouffler v. Coover.] this deed to Jacob Shelly, and it contains a general warranty, re- corded 17th of June 1806. June 17th, 1819: deed of Henry Coover and wife to John Coover and Adam Reigel, as tenants in common, consideration $3565, for a tract of woodland in Allen township, adjoining Trindle Spring road, and Henry Ford, John Goswiler, William Harkness, Daniel Mayley's heirs, and other lands of Henry Coo- ver, containing 31 acres 9 poles, neat measure, being part of a large tract of 201 acres 17 poles and allowance, reciting that it was conveyed to Henry Coover by the administrator of William Starr, and refers to the agreement and deed before mentioned, granted without reservation, and with a general warranty. 1st of April 1811, deed of Jacob Starr to John Zug, for 47 acres 89 poles, neat measure, part of two tracts of land, containing 146 acres and allowance, reciting that the said Jacob Starr became legally seised and possessed of the -same not recorded part of the aforesaid lands. Of the purchase money, Zug retained in his hands $374.79, being the proportional part of the widow's dower on said land, for which he gave his bond to Jacob Starr in the sum of $749.58, conditioned to pay the interest on $374.79, to the widow of John Starr (now intermarried with Valentine Shouffler) yearly, and every year, during her natural life, and the principal thereof at her death to the said Jacob Starr. Deed, April 14th, 1812 : Jacob Starr to John Goswiler con- sideration $9513.75, for a tract of Jand situate in Allen and East Pennsborough townships, bounded, &c. by heirs of Michael Shelly, John Zug, William Harkness, Henry Coover, George Steinberg, Henry Shaffer, and Mr Everly, containing 126 acres 136 poles, and all allowance, reciting as follows : part of two large tracts, the one situate in Allen, the other in East Pennsbo- rough township ; and whereas, the commonwealth of Pennsylva- nia by patent or grant under the state seal, bearing date the 8th day of May, A. D. 1785, for the consideration therein mentioned, did grant and confirm unto John Starr, a certain tract of land situate in Allen township, in the county aforesaid, containing 146 acres and allowance (of which a part of the above-mentioned tract is a part), with the appurtenances, to hold to him, his heirs and assigns for ever, as by said recited patent, recorded in Phila- delphia, in Patent Book, No. 3, page 424, more fully appears, &c. And whereas, at an Orphans' Court, held at Carlisle, in and for Cumberland county, the 16th day of April 1803, upon the petition of William Starr, eldest son and heir-at-law of John Starr, who died intestate, pray ing the court to award an inquest to make partition of the real estate of said intestate in the said petition mentioned to and among his children and representatives, in such manner and in such proportion as, by the laws of Pennsylvania, is directed and appointed, if such partition could be made without prejudice to, 406 SUPREME COURT [Harrisburg [Shouffler v. Coover.] and spoiling the whole, otherwise to value and appraise the same ; the said inquest was awarded by the court, according to the prayer of said petitioner, whereupon a writ of valuation or parti- tion issued out of said court, bearing date the 16th day of June 1803, to the sheriff of said county directed, commanding him to summon an inquest, to make partition of the said real estate to and among the children and representatives of said intestate, ac- cording to law, if such partition could be made without prejudice to, and spoiling the whole ; but if such partition could not be made as above said, then to value and appraise the same; and, that the partition and valuation so made, he should distinctly and openly have before the justices of the said court at Carlisle, the next court following ; at which court the sheriff of said county made return thereof, but by mistake or neglect never was entered on the fair records of said court, and lay dormant until the decease of the said petitioner, after which time it was forwarded to said court, and considered by the court that the said William Starr was and should be possessed of the part of the before-mentioned tract of land, situate in Allen township, as fully as ever the de- ceased was in his lifetime, as in and by the records of said court, relation being thereunto had, appears, by force and virtue of the inquisition, before recited, or some other good conveyance or as- surance in the law duly had and executed, the said William Starr became in his lifetime lawfully seised in his demesne of fee of and in the said tract of land with the appurtenances, and being so thereof seised, died intestate, and without issue of his body. At an Orphans' Court, held the 13th of May 1806, at Carlisle, for the county of Cumberland, came into court Jacob Starr, bro- ther of William Starr, late of East Pennsborough township, de- ceased, and prayed the court to confirm to him the real estate of his brother, held under advisement at the last court, consisting of a tract of land in said township, and proposed John Forney and George Snively as sureties. The court approved thereof, and ordered the said Jacob Starr with his sureties to enter into a re- cognizance according to law, for the distributive share of Henry Coover deceased, son and only child of Elizabeth Coover deceased, late Elizabeth Starr, sister and one of the heirs at law of the said William Starr; accordingly the said Jacob Starr did, by which means he became seised and possessed of his brother's real estate, as fully and freely as he, the said deceased, was in his life- time, as by relation being had to the proceedings of the court, may more fully appear, of which tract part of the above-described tract is a part, by which means the part of the above-described tract, situate in Allen township, lawfully descended to the before- mentioned Jacob Starr in fee, and the part situate in East Penns- borough, containing 21 acres thereof, Leonard Fisher, Sen. did, by his indenture, bearing date 2d of December 1800, grant and confirm unto George Frankleberger, for the consideration therein May 1841.] OF PENNSYLVANIA. 407 [Shouffler v. Coover.] mentioned, which recited indenture entered in the office for the recording of deeds in Cumberland county, book P, vol. 1, page 302, as by reference being had thereunto more fully appears; and the remainder, which is 21 acres 95 poles and allowance, Leonard Fisher, Sen. and wife, by their indenture, dated 3d of April 1804, did grant and confirm unto the aforesaid George Frankleberger, and to his heirs and assigns for ever, as in and by said deed appears recorded in book Q, vol. 1, page 136; and the said George Frankleberger, by indenture under his hand and seal, dated 19th day of June 1810, for the consideration therein mentioned, did grant and confirm unto the aforesaid Jacob Starr, his heirs and assigns, together with the buildings, improvements, &c., " to the only proper use, benefit, and behoof, of him, the said John Goswiler, his heirs, &c., for ever," with special warranty, recorded 13th of February, 1826. Of this purchase money, Gos- wiler retained in his hands $664.64, being the proportional part of the widow's dower in said land, for which he gave his bond to Jacob Starr, conditioned to pay the interest on that sum to the widow yearly and every year during her life, and the principal at her death to the said Jacob Starr. September 8th 1813, deed: John Zug to Robert Campbell for 42 acres, being part of the above-mentioned 47 acres 89 poles, neat measure. April 5th, 1814, deed from John Goswiler to Robert Campbell, 5 acres, bought of his father not recorded. April 5th 1816, deed Robert Campbell and wife to John Gos- wiler for 42 acres 42 perches neat measure, reciting that part of the aforementioned five acres of land neat measure is a part of the above, and the remaining part of the five acres is surveyed out of another tract of land which the said John Goswiler now occupies, and which he purchased from John Goswiler Sen., by his in- denture. The said deeds from John Zug to Robert Campbell, and from Robert Campbell to John Goswiler, were both deeds with special warranty. Campbell paid Zug by giving to him the bonds of Goswiler on his (Goswiler's) purchase from Campbell, which bonds were drawn from Goswiler to Zug. To August Term 1819, No. 161, Zug brought suit on one of said bonds against Gos- wiler, which was referred to arbitrators, who, on the 23d August 1819, reported: "We, the arbitrators, do find that the sum of $236.38 is coming to plaintiff, John Zug, being the amount of principal and interest due after deducting the sum of $335.58 upon which the dower of Magdalena Starr, widow and relict of John Starr, deceased, is chargeable, which balance is to remain in the hands of John Goswiler till the death of said widow :" to which award no appeal was ever taken. April 7th 1824, deed from James Neal, Esq., sheriff, to Charles Higbee, for the same tract of land, situate in Allen township, 408 SUPREME COURT [Harrisburg (Shouffler v. Coover.) adjoining lands of William Harkness, Martin Rupp and others, levied on as containing 160 acres, more or less, about 90 acres of said land is cleared, having thereon erected a brick house and brick bank barn, &c., which said tracts of land with the appurtenances were seized and taken in execution and legally sold as the pro- perty of John Goswiler, at the suit of Samuel S. Wight. 1st April 1826, deed for the same 126 acres from Charles Hig- bee to John Coover and Adam Reigle. 15th April 1826, bond of indemnity against this claim if it should ever be made, by Charles Higbee and John D. Mahon to Coover and Reigle. Deed from Adam Reigle to John Coover for the same land, of the lands of John Starr, then came to Adam Coover through John Zug and Robert Campbell. A. 42 42 P. Minus A. 5 A. 37 42 P. From J.Starr thro' J. Goswiler, A. 126 136 P. minus am'tconveyed. To Goswiler by Frankleberger, A. 42 95 P. viz: A. 21 95 P. A. 21 4294. A. 84 41 P. total am't from Starr. A. 121 83 P. to Coover. f Christian Hoover sworn. I am agent for Shouffler and wife ; 1 pay yearly 862.36 to Shouffler and his wife during her natural life; there are two payments due on the 1st of September; it has never been demanded, and will be paid as soon as it is demanded ; it is for a portion of the land which Mr. Coover has ; I pay it for Jacob Starr on the dower bonds. Henry Coover sworn. I bought some of this land, and pay the widow annually $107.77; it has been paid regularly except the last year and part of this ; it is ready for her as soon as it is de- manded. Cross-examined. That sum was fixed out of the land at the time I bought ; I got 201 acres and allowance ; I have this sum nearly 40 years. 2d April 1828, deed, Jacob Starr and wife to Jacob Meily, recites proceedings of Orphans' Court before read, containing 182 acres 32 perches, subject to widow's dower, the sum of $2539 which is to remain in the premises, interest to be paid annually to widow, $152.34. Jacob Meily affirmed. I have all paid up to Shouffler and wife till the last; I paid $152.34 annually; the last I am ready to pay when it is due. Cross-examined. The money is left in the land, the interest of which I am to pay the widow. May 1841.] OF PENNSYLVANIA. 409 [Shouffler v. Coover.] Admitted that Jacob Starr sold another piece of land to Jacob Shelly, 200 acres, 7th April 1806, with general warranty, with- out any reservation on account of widow's dower, but that Meily pays the dower on this tract out of the fund left in his hand by Jacob, and is part of the $152.24. Defendants again. Read bond under first general exception. Bond, John Zug to Jacob Starr in the sum of $749.50, dated 7th April 1818, conditioned for payment of $374.59 on the death of widow, and interest to be paid yearly and every year to widow. Interest paid for 1819. This bond was sued by Jacob Starr for use of Shouffler and wife v. John Zug's administrators, No. 147, January Term 1832. Admitted that the money is paid on the bond on which this suit was brought. 31st January 1839, Zug paid $622.25, the amount of the instalments secured by that bond and their interest. 28th May 1840, paid $45 in full for two next instalments. Admitted that John Goswiler is insolvent. Christian Hoover again. Cross-examined. About four years back I began to pay Mrs. Shouffler her interest : in 1836 I pro- cured the money I then paid from Jacob Starr; in 1836 I paid $583.06 to Mrs Shouffler; the year following I made the next payment, and paid annually afterwards the sum of $62.36, that I paid out of my own pocket till I got this money recovered from Zug ; Jacob Starr told me to get this money and to pay it over ; the balance of this money is in my hands to pay this yearly sum to the widow as it becomes due ; I pay it by virtue of an article of agreement in which I bailed Starr to pay this money to the widow in 1836. Articles of agreement dated 25th November 1835. Admitted John Zug bought from Jacob Starr and also admit- ted that every thing distrained for had been paid to Shouffler and wife previous to the distress, and that the distress was made for the interest of the person who paid them. Admitted also, that Jacob Starr paid the widow her interest from 1822 up until 1828, yearly, then there was an interval for a few years until 1836, then they calculated the balance due the widow which was paid as stated by Christian Hoover, and shown by the receipt on Starr's bond to the widow, and since then the payments made to the widow annually. The court below (Hepburn, President,) was of opinion that the defendant was not entitled to recover, and instructed the jury accordingly, who found for the plaintiff. Biddle and Watts, for plaintiff in error. The tract of land sub- ject to distress for the widow's annuity was divided into different parts. Starr and Zug, who had been owners of two of the parts, were compelled to pay not only their own shares, but also that portion which should have been paid by the plaintiff, who owned i. 52 2 K 410 SUPREME COURT [Harrisburg [Shouffler v. Coover.] another part; and the only question is, whether they may not be substituted to the widow's right of distress, to compel the plain- tiff to pay his share. Substitution is an equitable remedy to pre- vent circuity of action, and will be resorted to in every case, where one in the character of a surety is compelled to pay money for another; and the remedy is one resorted to, not only for the pur- pose of enabling the person paying to collect the debt from him who should have paid it, but also to put him in possession of all the facili- ties for collection, which the original creditor had hence, in the case of Croft v. Moore, (9 Watts 451) it is held, that one surety may be substituted to a plaintiff's rights, in a judgment against two sureties, although an action would lie for contribution. There seems to be no reason why there should not, in this case, be a right of substitution to the remedy which the widow had, by which she compelled the defendants to pay the whole amount of her an- nuity; 4 Johns. Chan. 123; 2 Rawle 132; 2 Kent 616. Reed, for defendant in error, argued that inasmuch as it was admitted the widow had been paid, no matter by whom, the right of distress was gone, and if she had distrained afterwards, she would have been a trespasser. The remedy is a personal one, and which the widow cannot transfer. 3 Penn. Rep. 203; 10 Watts 152; 6 Watts 221. The opinion of the Court was delivered by KENNEDY, J. This is an action of replevin founded upon a distress made under the authority of the widow of John Starr, deceased, for interest, as it is alleged, coming to her in lieu of her dower, upon the one-third of the valuation money of the real estate of the said deceased, which was taken by his eldest son, William, under a proceeding and decree had in the Orphans' Court of Cumberland county, wherein the estate was situate. The estate consisted of between six and seven hundred acres of land, which was divided by the eldest son, after it was decreed to him, into three parcels, two of which he sold, one to his brother Jacob Starr, and the second to his brother-in-law Henry Coover. The third he retained till his death ; when his brother Jacob, as one of his heirs, became the owner of it under a decree of the same Orphans' Court. Jacob Starr subdivided all that he acquired, and sold the most, if not the whole of it, to various persons. In making some of his sales, he left in the hands of the purchasers as much of the purchase money as would enable them to pay their respective proportions of the interest coming to the widow, taking from them, however, a security that they would do so, and at her death pay the principal to himself. Henry Coover disposed of his nearly in a similar manner. At the time the distress was made, there was no interest in arrear or due to the widow or her husband. All that had become payable, had been paid either to her or her husband, by May 1841.] OF PENNSYLVANIA. 4H [Shouffler v. Coover.] Jacob Starr, John Zug, or some other of the holders of the land. The only question then, which arises in the case is, vvliether the widow and her husband, who are the plaintiffs in error, had a right to make or cause a distress to be made on the goods of the plaintiff below, who is the defendant in error, for the use of those who it was alleged, had paid beyond their due proportion, to the amount of what it was claimed, he, as a holder of part of the land, ought to have paid, but had failed to do so. It is very clear that the widow had no claim, when the distress was made, as she had been fully paid all that was previously due to her. Distress may be regarded as festinum remedium, when not founded upon the previous judgment of a tribunal established for the purpose of administering justice, and being given to the party claiming to be redressed by means of it, to be administered in some degree ac- cording to his or her will and judgment in the matter, it would, therefore, seem to be right not to extend it beyond the occasion or the necessity which induced the granting of it, or permit it to be exercised for the benefit of those who do not stand precisely in the situation, in every respect, of the party who was designed to be protected by it. Generally, it is given only in cases where assessments are made to supply the public wants, or rents be- coming due annually, under leases made of lands, or under a parti- tion of lands between co-parceners for owelty of the same, or where rent is granted to a widow out of lands, of which she is dow- able, in lieu of dower; the law considers the rent or owelty in such cases a charge of common right, because a valuable consideration, that is, a right that the party had in the lands charged has been given for it, and therefore, the law gives a remedy by distress for the recovery of it ; Lit. Sec. 58, 213, 214, 216 ; 1 Inst. 47 a, 142 a, 169 b ; Gilo, on Rents 20; or in case of another's cattle damage feasant, the right of distress is given from the necessity of the thing itself, as otherwise it might be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage. 3 Bl. Com. 6. Although the law gives the lessor a right to distrain, it will not permit the like right to be exercised by the lessee, if he assigns his term reserving a rent, or taking a stipulation from the assignee that he shall pay the rent to the lessor as it shall become payable; 2 Wils. 375; and it is said by Mr. Archbold, that the lessee will not be permitted to distrain in such case,' even if the deed of assignment contains a clause of distress. 3 Bl. Com. 6, note (1). Now if it be, that the lessee, who may have paid the rent due to his lessor, cannot distrain upon his assignee for the rent reserved to himself, in order to reimburse what he paid to the lessor, it would seem to indicate that his po- sition is not entitled to the same favour as that of his lessor. And if he cannot distrain under an express reservation of an authority to do so, it is difficult to comprehend upon what ground he shall be permitted to use the name of his lessor for recovering the rent, 412 SUPREME COURT [Harrisburg [Shouffler v. Coover.] by way of distress, reserved to himself, or the lessor shall be per- mitted, after being paid the rent coming to himself, to distrain for the benefit of his lessee. So, if there be lord and tenant by fealty and certain rent, and the lord by deed grant the rent in fee, saving the fealty, and grant further, by the same deed, that the grantee may distrain for the same rent in the tenancy, albeit a distress were incident to the rent in the hands of the grantor, and although the tenant attorn to the grant, yet the grantee can not distrain; because the distress cannot be separated from the seigniory. 1 Inst. 150 b. These authorities go to show that the right of distress can only be exercised where a particular rela- tionship exists between the parties, and that the party invested with such right cannot transfer it without transferring also along with it the interest to which it is incident ; or that the party who was liable to pay the rent and to be distrained for it, on account of his situation, cannot devest himself of that situation by making an assignment of his interest in the land charged with the rent, and at the same time thereby secure to himself a right to distrain on his assignee. And when the lord or the lessor has actually been paid the whole of the rent due by those who were bound to do so, his right to distrain must be considered as gone in regard to that which has been so paid ; and upon no principle known, either to the law or equity, can he be permitted to exercise it for the bene- fit of those whose relative situation, in regard to the duty was such that the policy of the law would not even allow them to stipulate on their own behalf for the exercise of it in their own names. The right on the part of the widow to distrain, in the case before us, was given by law not only from a consideration of the great meritoriousness of her claim upon her husband's estate for a support during her natural life, but likewise from the considera- tion, that unless the remedy were put into her own hands, to be administered by herself, as her necessities might require it, she might be without the means of support, and the first and great object of the annuity given to her, in some degree defeated by delay in making payment of it to her. But as long as it is promptly paid to her, she cannot distrain, nor can there be any occasion for it. Her wants being supplied, to the full extent of her right under the decree of the Orphans' Court, by those who either had been or were bound to do so, she has no occasion to concern further with the matter, nor right to make a distress for the purpose, as it is claimed here, of administering justice to those who paid her, on the ground that they, as they allege, paid more than their proportion of the annuity coming to her, or that which the plaintiff below ought to have paid. This, certainly her necessity did not require, nor does it seem to have been within the contemplation of the law giving her the right of distress. Besides this, it involves questions of fact and of law, which seem to be opposed to the exercise of the right for such purpose. It May 1841.] OF PENNSYLVANIA. 413 [Shouffler v. Coover.] cannot be exercised so as to do justice to the several holders of the land charged with the widow's annuity, without having it equally or justly apportioned among them, according to the relative value which each one's share bears to the primitive value of the whole quantity of land. But this neither the widow nor the court has the means of ascertaining; it is a question of fact which can only be determined by a reference of it to a jury, tlodgkins v. Robson, (1 Ventr. 276) ; Gilb. on Rents 189. Then unless the amount for which the distress is to be made can be reduced to certainty it is not clear that a distress can be made on account of it. For it is a maxim in law, that no distress in general can be taken for any duty or services that are not stated with certainty, or so at least as to be capable of being rendered certain ; for opor- tet quod certa res deducatur in judicium. 1 Inst. 96 a. A ques- tion of law also may arise, whether it be competent for the ori- ginal or other tenant of the land, in such case, by his own act, after dividing it into several parcels, to sell and convey the same so divided to different persons, and by doing so to apportion the annuity among them, so that a separate distress may be made on each for his proportion thereof. I take it that he cannot bind the annuitant to observe any apportionment which he may attempt to make in this way ; nor yet can she avail herself of it even if she were willing to do so. This would be more than the lessee, yielding a rent service for the land he occupies, could do; though his lessor, it would seem, may by a grant of part of the reversion to a stranger, apportion the rent between himself and the stran- ger, because the rent is incident, in such case, to the reversion, so that by parting the reversion the rent is apportioned. 1 Inst. 148 a. This, however, cannot be done by the grantee of a rent charge, which rent, in this particular, somewhat resembles the annuity here ; consequently, I take it that neither the tenant of the land in this case, nor yet the widow or annuitant, can divide and ap- portion the annuity. The annuity here, then, being an entire sum, and incapable of apportionment, and the right of distress being given by the Act of Assembly for that entire sum, one distress only, if sufficient goods are to be found, can be taken for it. Anon. Moo. 7 ; Anon. Cro. Eliz. 13 ; Wallis v. Savill, (Lutw. 1536). But it is said that in the present case a sufficient portion of the pur- chase money, to be paid by each tenant of the land for his portion thereof, was left in his hands to enable him, by using it, to pay all that is required. Admitting, however, this to be so, still, as it appears that the widow has been satisfied the amount secured to her by the Act of Assembly and the decree of the Orphans' Court, she can have no right to distrain for any greater amount, or any thing above that sum. If Jacob Starr, in disposing of the land, intended to make a further provision in her favour, the right of distress given by the Act of Assembly cannot be extended to that. But, in truth, it would seem that the distress here wag I. 2K* 414 SUPREME COURT [Harrisburg [Shouffler v. Coover.] made for the benefit of Jacob Starr, and not the widow. Still, however, whether it was for his or her benefit, the remedy by dis- tress is not the one which must be resorted to for the purpose of recovering it. But above all, it is a powerful objection to the dis- tress being made for the claim of the plaintiffs in this case, that no authority or case has been adduced by their counsel going to support it, nor am I aware of an instance in which there has been a subrogation by either a court of law or equity to the remedy by distress. Judgment affirmed. Ingle against Homman. Any justice of the peace has jurisdiction, upon the delivery of a transcript to him, to recover the amount of a judgment rendered by another justice who has resigned his office but retains his docket; and he may proceed by summons. ERROR to the Common Pleas of Dauphin county. Ferdinand Ingle, for the use of Leah Ettinger, against George Homman. On the 24th of October 1818, a judgment was obtained by the plaintiff, against the defendant, before Christian Spayd, Esq., a justice of the peace of Dauphin county, residing in Middletown, for $36.60 debt, and 93 cents costs. In 1829 Christian Spayd was appointed post-master at Mid- dletown, and thereby vacated his office of justice of the peace. In April 1838, the plaintiff produced to Mr Kline, Esq., a jus- tice of the peace of the county of Dauphin, residing at Harris- burg, not in the same district in which Christian Spayd had acted, and not being the nearest justice to said Spayd, a transcript of the said judgment on which justice Kline issued a summons in debt; after hearing, justice Kline, on the 25th of April 1838, gave judgment for plaintiff $80.23, being the amount of the judgment before justice Spayd, and interest thereon, together with costs: from which the defendant appealed. The question presented was, whether justice Kline had juris- diction of the cause of action. The court below was of opinion that he had not; and rendered a judgment for the defendant. M'Clure, for plaintiff in error. By the Act of 20th of March 1810, sec. 16, if a justice deliver his docket to another justice, it must be to the nearest one ; but if he retains the docket, and gives a transcript, that may be sued before any justice. By the Act of May 1841.] OF PENNSYLVANIA. 415 [Ingle v. Homman.] 20th of February 1833, the justice may " proceed in the same manner as the original justice might have done." There can be no doubt, therefore, that he might proceed by summons, especially as there is no such thing as a writ of scire facias by a justice provided for by the Act of Assembly. 2 Penn. Rep. 465 ; 10 Watts 103; 3 Whart. 81, 110. Hamilton Mricks, for defendant in error. The action is debt on judgment. The jurisdiction of a justice is limited to contract express or implied. 8 Serg. fy Raivle 343 ; 12 Serg. fy Rawle 58 ; 17 Serg. 4* Rawle 369. This is neither. The justice can only pro- ceed in the manner prescribed by the Act of Assembly ; 7 Watts 314; that is by issuing the same process which the original jus- tice might have done, which would have been a writ of scire fa- cias, and that by the nearest justice. The opinion of the Court was delivered by SERGEANT, J. The Act of the 20th of February 1833, supplies and varies the provisions of the 16th section of the Act of the 20th of March 1810, and enlarges the relief in several instances, besides adding a penalty to compel the forthcoming of a justice's docket and papers. The question before us is, whether, if a judgment be rendered before a justice of one district, and he resigns his office, a jus- tice of another district may proceed on a transcript of the docket being delivered to him. It is contended that such proceeding can be had only before the neighbouring justice of the same dis- trict. But we think it clear the provision in relation to the neigh- bouring justice applies only to the case of the delivery of the docket. That must be made to the neighbouring justice of the district, and this is required for the convenience of suitors who may come from a distance, and may thereby be able easily to find the docket, and the magistrate authorized to proceed upon it. But where the docket is not delivered to any justice, but retained by the justice or his representatives, after removal, resignation, or death, and a transcript is delivered, there is no reason why the neighbouring justice only should be required to proceed upon it rather than any other justice ; and the words of the Act are ex- press, " that if any justice or alderman, having resigned, or been removed, or the legal representatives of a deceased justice or alderman, shall choose to retain the docket, he or they shall, on demand, deliver a certified transcript, of any judgment or proceed- ings in any suit thereon, on oath or affirmation, to the party or parties interested; and the justice of the peace or alderman to whom said docket or transcript shall be delivered, shall issue pro- cess and proceed thereon in the same manner and with like effect as the original justice or alderman might have done." There is no provision that when the docket is retained the transcript shall 416 SUPREME COURT [Harrisburg [Ingle v. Homman.] be delivered to any particular justice, but that is left optional with the party obtaining it. The proceeding here was by summons, which we think good. No scire facias is prescribed by the Act of 1810, though it has been considered as a very proper proceeding on a prior judgment in analogy to the proceedings in courts of common law. The sum- mons answers the same purpose. The same judgment is render- ed, and the expense of the writ is, by the fee bill, less than that of a scire facias. Judgment reversed, and venire facias de novo awarded. Beltzhoover against Waltman. The property of a tenant holding by a renewed lease, is not subject to be dis- trained by the landlord for the payment of the arrears of rent for the previous year, if a third person has acquired an interest in the property. APPEAL from the decree of the Common Pleas of Cumberland county. Upon a judgment and execution of Michael G. Beltzhoover against J. Waltman, Sen., and J. Waltman, Jr., the personal pro- perty of the defendants was levied and sold for $633.33, and upon a rule the money was brought into court for appropriation. Plies, Thudium & Co. leased their farm to Joseph Waltman, Sen., for the term of two years, ending 1st of April 1840, at a rent of $500 a year. Thomas Craighead became his bail for the payment of the rent. 14th of December 1839, Plies & Co. again leased the farm to both the Waltmans for the period of five years, commencing 1st of April 1840, at a rent of $600 a year. M. G. Beltzhoover became bail for the payment of the rent the first year of this lease. One half of this year's rent was payable 1st of January 1841. The fieri facias issued 1st of October 1840, at which time upwards of $600 was due on the first lease. On the 5th of October 1840, the said landlords issued their warrant di- rected to the sheriff to distrain the property on the demised pre- mises for balance of rent as aforesaid due on first lease, and at same time gave the sheriff notice to retain one year's rent, due 1st of April 1840, out of the proceeds of the sale. This warrant and notice were given at the instance and request of Craighead, the surety. Waltman, Sen., was in possession of the demised pre- mises during the period of the first lease and the second up to the time of sale, and Waltman, Jr., lived with him all the time, and May 1841.] OF PENNSYLVANIA. 417 [Beltzhoover v. Waltman.] they became joint lessees as before-stated. 16th of December 1840, the landlords gave sheriff notice to retain $300 for a half year's rent on second lease. Beltzhoover made no objection to the pay- ment of the $300 to the landlords on the second lease as claimed by them, but claimed the balance of the fund on his executions. Craighead claimed to have $500 of the fund applied to the rent due on the first lease in which he was surety, and which was one year's rent due 1st of April 1840. The court decreed the $300 on the second lease to the landlords, and the balance of the fund to Beltzhoover on his executions. From this decree Thomas Craighead appealed. Gallaher and Alexander, for appellants, argued that our statute of 1772 differs materially from the British statute of Anne ; that the omission of the words " during the possession of the tenant from whom such arrears are due," must have been designed to extend the remedy beyond the term of the lease. It is manifest that under our Act the goods of the tenant may be distrained after the termination of the lease in the premises, although the tenant may have gone off. In this case, all we wish to apply this principle to, is that the proceeds of the elder Waltman may be applied to the rent. Biddle, for appellee, argued that the goods of two joint tenants cannot be distrained for the rent of a former year due by one of them only. It is a new tenancy, and the landlord cannot distrain. There would be a want of good faith in a landlord, after bringing in a new tenant, to subject his goods to distress for the arrears of rent, or to take even the goods of him who owed it, inasmuch as the stranger to the former lease would be prejudiced by appropri- ating the goods of his co-tenant when sold, to any other object than the accruing rent. PER CURIAM. The decree of the Common Pleas seems to be founded on a just construction of the Act of 1772. It is true the provision of the 8th Anne, from which our Act was taken, that the distress be made " during the possession of the tenant from whom such arrears are due," has been omitted in it ; but it is im- plied by the very nature of the power given to distrain after the determination of the lease, " as if such lease had not been ended or determined," for a distress before the end of a lease must ne- cessarily be during the possession of the lessee. The legislature probably had in view the case of a holding over, such as they pro- vided for in other respects by previous sections ; but we do not at present say whether the property of a tenant holding by a renewed lease might not be distrained, provided no one else had gained an interest in it we leave that point to be decided when it shall arise but the legislature certainly did not mean to jeopard the i. 53 418 SUPREME COURT [Hamburg [Beltzhoover v. Waltman.] interests of third persons subsequently gained in property on the premises by making it subject to distress after the end of the lease as fully as it was before it ; for that would involve the pro- perty of a stranger who had entered with it under a subsequent lease. But if the extension of the time was not intended to affect the ownership of property brought on the premises under a new lease, it cannot be suffered to affect the property of the younger Waltman, who became joint lessee with his father on the credit of the father's property on the premises as a security for the pay- ment of his part of the accruing rent. To deprive the son of that, would leave his own property exclusively liable for the whole in- stead of being liable jointly; and thus give to the statute an inju- rious operation which was not intended. Had the lessor told the son that he meant to pounce upon the father's chattels for the back rent, and thus make the son bear the burthen of the whole, it is easy to suppose the lease would not have been accepted ; and we are not to give the statute a construction that would make it a snare. The money in court, therefore, was properly distributed. Decree affirmed. Ruling against Hugg. A set-off can only be made of a debt or demand which existed at the time of the commencement of the action : and the defendant must be able to show that it was then his. A negotiable note, payable to the order of the plaintiff, need not be endorsed by him before suit brought. ERROR to the Common Pleas of Mifflin county. Hugg & Bell against David W. Huling. This was an action brought upon the acceptance of the following bill : ..conn " Lewistown, Mifflin county, November 29th 1836. IP*7UU "Sixty days after date pay to the order of Hugg & Bell nine hundred dollars for value received, without defalcation. m Tk t \T TI & " JACOB FORNEY. " To D. W. HULING, ESQ." Endorsed, " Accepted, D. W. HULING.'' 31st January 1837, protested for non-payment. The defendant offered in evidence by way of set-off a judgment obtained in the District Court of the city and county of Philadel- phia, at the suit of John A. Brown & Co., for the use of D. W. May 1841.] OF PENNSYLVANIA. 419 [Huling v. Hugg.] Huling, for $607.21, obtained on the 22d July 1837, on a note dated llth October '1836, payable in six months. This evidence was objected to by the plaintiff, on the ground that the judgment was obtained after the present suit was brought, which was 15th March 1837, and that the note on which the judgment was founded was not then due. And that the defendant had not shown when he became the owner of the note or the judg- ment which he proposed to set-off. The court below sustained the objection, and rejected the evi- dence. The defendant then requested the court to charge the jury that the plaintiff could not recover in this action upon the evidence which he had given : he not having endorsed the note before he brought suit. The court, however, (Burnside, President) instructed the jury that that was not necessary, and directed a verdict for the plaintiff. Huling, in propria persona, argued that our statute of set-off is more extensive than the English statute : and under the equitable powers of the court, defalcation is admitted when the rights of third persons are not concerned, even though the debt was not due at the time of suit brought. 8 Watts 443 ; 1 Rawle 227 ; 9 Watts 196 ; 5 Serg. # Rawle 201 ; 15 Serg. fy Rawle 63 ; 7 Watts 464 ; Comyn Rep. 109 ; 4 Johns. 63. Benedict, for defendant in error, contended that the debt pro- posed to be set-off must be due when the suit is brought ; the rights of the parties must be tried as of that period ; and cited 15 Serg. # Rawle 63; 9 Watts 126; 3 Johns. Cas. 145; 19 Johns. 322 ; 2 Johns. 274 ; 4 Watts 390. J. Fisher, in reply. The opinion of the Court was delivered by ROGERS, J. A debt or demand to be set-off under the sta- tute, must be an existing debt or demand, at the time of the com- mencement of the suit. Carpenter v. Butterfield, 3 Johns. Cas. 145; Jefferson County Bank v. Chapman, 19 Johns. 324. To avail himself of a set-off, a defendant must prove when it came to his hands. Ogden v. Comly, (2 Johns. 274, 8.) These decisions are recognized in Morrison v. Moreland, (15 Serg.fy Rawle 63,) and in Stewart v. The United States Insurance Company, (9 Watts 126.) The defendant rests his defence on what he calls the equity of his case ; but it is difficult to perceive in what its peculiar equity consists. The defendant accepted an inland bill of exchange, which failing to pay when due, it was protested for non-payment, and suit was brought to enforce the performance of the contract. At the commencement of the suit, he had no defence whatever, but he afterwards purchased for the purpose, or procured in the 420 SUPREME COURT [Harrisburg [Huling v. Hugg.] usual course of business, and had assigned to him, the debts, one a judgment, the other a note, which ne offers as a set-off to the plaintiff's demand. In nothing does it differ from Carpenter v. Butterfield, where this point is fully examined, and where most of the arguments which have been urged here are noticed by the court. The objection to the judgment is not because it is in that form, for that would be unavailable, but because it was not the pro- perty of the defendant until suit brought. And this appears as well from the admission of the defendant, as from the testimony itself. There is an additional objection to the note, that it was not due at the institution of the suit. 4 It is also said, the court erred in refusing to instruct the jury that from the face of the note the plaintiff could not recover with- out endorsing it. There is nothing in this exception; the note is payable to the order of the plaintiff, and does not require an en- dorsement to enable the payee to maintain a suit on it. A bill payable to the order of A, is the same as if payable to A or order. Judgment affirmed. Bryson against Myers. One who purchases real estate which is encumbered by judgments, which he agrees to pay out of the purchase money, and afterwards discovers another judg- ment which he did not agree to pay, may take an assignment of the judgments paid by him, in order to protect himself from the payment of the judgment which he did not agree to pay. And if the latter judgment creditor proceed to sell the estate by execution, and the money be brought into court for appropria- tion, the assignee of the first judgments will be entitled to the money. ERROR to the Common Pleas of Cumberland county. This was an issue directed by the court to try the right to the proceeds of the sale of the real estate of George Eppley by the sheriff to Jacob Myers, the defendant, for $370. The judgments were, as appeared by the record, 1st. John Shoff v. George Eppley, Rl. Dt. $250. Interest from 23d of March 1837. Entered 29th of May 1837. 2d. Samuel Eberly v. Same, Rl. Dt. $45. Interest from 8th of August 1837. Entered 1st of September 1837. On the 16th of March 1840, there was filed a written assign- ment of this judgment by the plaintiff to Jacob Myers, purporting to have been dated 1st of April 1839. 3d. Thomas B. Bryson v. Same, Rl. Dt. $66. May 1841.] OF PENNSYLVANIA. 421 [Bryson v. Myers.] Interest from 30th of July 1838. Entered llth of August 1838. Upon this judgment the land was sold. John Shoft' affirmed. There was two years' interest on my judgment paid by Jacob Myers; paid about 1st of April 1839. Cross-examined At the time Myers paid me, he said he wanted an assignment of this judgment. I did assign the judgment to him ; the whole of it. In chief. This is the assignment of the judgment referred ta Assignment read; dated 14th of November 1840. Witness, again. At the time he paid me the interest, I took him for pay. At the time he paid me the interest, he did not say anything about the assignment of it; he said he was going to pay the interest on the money. Cross-examined. When he satisfied me for the whole, he talked about an assignment. He said he paid the interest for himself, that he was going to pay me the whole amount, but not at that time just ; and when he paid the balance, he asked me to transfer it. Paid me balance last fall, and I gave him this paper. Samuel Eberly affirmed. Next April will be two years since my judgment was paid. Jacob Myers paid me. When he paid me the money, he paid it for himself. I gave him a receipt. He paid for himself because Myers had the title. I understood Eppley was agreed Myers should do with the judgments as he pleased. When he paid me the money, Myers told me I should enter satis- faction at a suitable time, when I came to Carlisle. Can't say how long, but some time after the money was paid, this assign- ment was given. Money was paid me about 1st of April 1839. Think this paper was not then executed. Assignment of Samuel Eberly read; dated 1st of April 1839: filed in court 16th of March 1840. Witness again Cross-examined. I think Eppley had told me Myers was to have the judgments. I know he was agreed. When Myers paid me the money, he spoke of satisfaction. I gave a re- ceipt that time. Some time after, Myers gave me notice I should not enter satisfaction. We talked all in German. In chief. Jacob Rupp wrote the assignment. Myers told me he would get an assignment, and was getting Rupp to write it he said the reason was, when he bought the house he was careless about it, and did not examine the office, and then he found out there was another judgment he was not aware of. I believe that is the reason the transfer was made. Myers has been in posses- sion the last two years. Biddle for defendant. Deed from Eppley and wife to Jacob Myers, dated 28th of Sep- tember 1838, acknowledged the same day for the same property sold ; consideration, $380. George Eppley affirmed. Myers and me had negotiated in writing. Myers was to give me $380. He gave me a note for the I. 2L SUPREME COURT [Harrisburg [Brjson v. Myers.] whole of it. It was to be paid all cash in the spring of 1839. After the making of the deed he gave the note. The note was for the whole $380. He was to pay me the balance that was over these notes of Eberly and Shoff ; then he was to pay off as he wanted for himself. The only agreement was, he had bought the property, and was to pay me so much for it. We talked about the judgments. He was agreed to take the judgments, I was agreed to give them to him, and the men were willing to take him for them. The judgments were to be his, not mine. This agreement was better than two months before the deed was made. After the judgments were paid, the overplus he was to pay to me. Cross-examined. Eppley paid me 850. Jacob Rupp affirmed. Myers went into posssession of this property last April a year, (1839.) Before Myers paid the judgment to Eberly, he requested me to search the docket, if there were any other judgments except Shoff's and Eberly's. I did not examine. I advised him when he paid that judgment he should take an assignment. Some time after, I inquired if he took a transfer of the judgment. He showed me a receipt. I then told him that would not answer the purpose. I then told him he should bring me the certificate of Eberly's judgment, and I would draw an assignment for him. He was afterwards at my house, and he brought the certificate. I drew up the assignment I saw at the table ; this is it ; left it at my house for the purpose of getting it. When it was executed I told him it would answer the purpose. I advised Myers as I have stated in relation to Eberly, the same as regards Shoff, and at the same time. Samuel Eberly. Did not know any thing of Bryson's judgment. At the time Myers paid me, Myers told me Eppley said there was no other judgments against him but Shoff's and mine. The court was respectfully requested to charge the jury on the following points. 1. If the jury believe that Myers purchased the property from Eppley in the fall of 1838, for a sum sufficient to pay all the judgments against it, including the plaintiff's, he has no equity now, and cannot avail himself of any arrangement then made to keep up the judgments of Shoff and Eberly, to protect him against the judgment of Bryson which he had the means of paying in his hands. 2. If Myers paid the judgments of Shoff and Eberly, or any part thereof absolutely, without asking or taking an assignment of them, he cannot afterwards in consequence of discovering Mr Bryson's judgment, obtain an assignment of them, and keep them unsatisfied. 3. If Myers paid the judgments of Shoff and Eberly, or any part thereof, they thereby became satisfied pro tanto, and nothing that he could afterwards do would revive them. May 1841.] OF PENNSYLVANIA. 423 [Bryson v. Myers.] 4. That if there was no agreement between Shoff and Myers, and Eberly and Myers, when the judgments were paid, that they should still subsist, the plaintiff in the said judgments could not make any agreement afterwards by which they could be kept alive and unsatisfied for the use of Myers. 5. That if no agreement was made between Eppley and Myers at the time of the sale of the house, that he should keep the judgments alive for his protection, after he had paid them, they never could make such an agreement afterwards, if it affected anybody else. The court thus charged the jury: HEPBURN, President. The present issue was directed by the court for the purpose of determining the right of plaintiff to the money claimed by him from the proceeds of the sale of George Eppley's property. The facts are not complicated, and seem to be in substance these: On the 28th of September* 1838, Eppley sold his house and lot in Shiremanstown to Jacob Myers, for $380, took his note for the amount, and agreed to take as cash in pay- ment of it, the amount of two judgment liens on this property due to Eberly and Shoff; and the balance of the note to be paid him in cash. At the time this deed was executed (28th September 1838,) you will recollect Bryson's judgment was a lien also on this property being entered llth of August 1838, Shoff's en- tered 29th of May 1837, for $250, interest from 23d of March 1837, and Eberly's entered 1st of September 1837, interest from the 8th of August preceding, for $45. These judgments being prior in time, of course are entitled to the money, unless the circumstances alleged by the plaintiff in this issue, entitle him to stand in their room to the extent claimed by him, $59.60. It is alleged by the plaintiff, first, (read his first point) An- swer, I do not think so. The contract of Myers and Eppley was a perfectly fair one ; and if Myers paid Eppley $50, as indicated by the testimony, in pursuance of his agreement, that he might perhaps have appropriated to much more advantage to himself by paying a lien creditor, it certainly did not affect that creditor's rights, and therefore cannot deprive Myers of any equity he would otherwise be entitled to, as between him and that creditor, stand- ing precisely in the position he occupied previous to Myers's agree- ment. The payment to Eppley, made Bryson no better nor worse than he was before. The property in Myers's possession was bound to the same extent it was in Eppley's. We therefore an- swer this point in the negative. Read second, third and fourth points. Answer. The jury will recollect the situation of these parties. Three judgments are entered of record against Eppley's property; a portion of one is paid, (the interest for two years on Shoff's) and all of Eberly's, by Myers, the purchaser. Some time after these payments were made, he gets an assignment of the judgments from 424 SUPREME COURT [Harrisburg [Bryson v. Myers.] the plaintiffs, and produces them in court. The judgments were not satisfied on the record ; they stood open against Eppley. The payments made by Myers, were made in pursuance of an agree- ment by which Bryson was not bound. He was made no worse by these judgments being transferred to Myers; and as between the plaintiffs in the judgments, Eppley and Myers, it was perfectly competent for them to keep these judgments in such a situation as would protect the person paying the money, if requisite to do so. The agreement under which Myers paid his money, has been destroyed by Bryson so far as he could do it, by using his lien to make his money, which he had a right to do. Can it then be, that the agreement is binding on Myers as between him and Bry- son, after he has sold the property by virtue of his lien, for a sum not sufficient to reach his judgment, so as to enable him to turn round and claim the benefit of money paid by Myers, in pursu- ance of his and Eppley's agreement, and thus deprive the pur- chaser of both the property bought, and the equitable right of being substituted in the room of prior judgment creditors whom he paid to protect himself against a subsequent one? I think not. Myers, as the testimony strikes me, was going on in good faith to comply with his agreement. The plaintiffs in the judgments assented to take him for their payment ; one actually received a portion of his debt, and the other the whole, when it is discovered that Mr Bryson's judgment was a lien against this property, and was not provided for in the agreement. The plaintiffs then assign their judgments, unsatisfied on the record, to Myers. Mr Bryson proceeds on his judgment, sells the property for $370, a sum not sufficient to much more than cover the prior judgments. Myers in pursuance of his assignment claims the money, to the amount of these judgments, and as I before intimated, we think he has a perfect right to do so. So far as I can see it affects the rights of no one ; it is a matter of indifference to Bryson, whether the plain- tiffs in the judgments, or Myers, claim the money. Fifth point. There could not be such an agreement made afterwards, if it affected anybody else. But as I before stated, it cannot make any difference to Bryson whether the plaintiffs in the judgments or their assignee claim the money. Bryson stood on his legal right, regardless of any arrangement between Eppley and Myers. He sold the property on his judgment for a sum not sufficient to reach it, and of course if we are right in law, there is nothing left for him. Charge excepted to by plaintiff, and this bill sealed. Watts, for plaintiff in error. Biddle, for defendant in error. The opinion of the Court was delivered by KENNEDY, J. This was a feigned issue, ordered by the court May 1841.] OF PENNSYLVANIA. 425 [Bryson v. Myers.] below, for the purpose of determining the respective rights of the parties to receive the money arising from a judicial sale of a house and lot of ground, situate in Shireman'stown, as the property of George Eppley. The facts of the case, from the evidence, would appear to be, that George Eppley had been the owner of the house and lot anterior to the 29th of May 1837, and continued to be so until the 28th of September 1838, when he sold and con- veyed the same by deed to Jacob Myers, the defendant. Pre- viously, however, to this latter date, three judgments had been obtained against Eppley, which bound the house and lot at the time of sale. The first was entered on the 29th of May 1837, in favour of John Shoff, for two hundred and fifty dollars debt, with interest from the 23d of March preceding. The second, on the 1st of September 1837, in favour of Samuel Eberly, for forty-five dol- lars debt, with interest from the 8th of August 1837. And the third, on the llth of August 1838, in favour of Thomas B. Bryson, the plaintiff in error, for sixty-six dollars debt, with interest from the 30th of July preceding. In treating for the purchase of the house and lot, Eppley told Myers of the judgments against him in favour of Shoff and Eberly, but said nothing of the judgment in favour of Bryson. It was finally agreed between them, that the price of the house and lot should be three hundred and eighty dol- lars ; that Myers should give his note to Eppley for that sum, payable on the 1st of April 1839; with an understanding, how- ever, between them, that Myers should pay Shoff the amount of his judgment, and Eberly the amount of his, out of the $380, and having done so, do what he pleased with those judgments. And the surplus of the $380, he was to pay to Eppley himself. - The note was accordingly given by Myers to Eppley, and Eppley thereupon made a deed of conveyance of the house and lot to Myers. About the 1st of April 1839, Myers paid Shoff two years' interest on his judgment, about the same time fifty dollars to Ep- pley, and not long afterwards paid Eberly the amount of his judgment in full, taking a receipt for the payment of it; but shortly thereafter, upon Myers coming to a knowledge of Bry son's judg- ment, Eberly, as Eppley had agreed that Myers should do what he pleased with his judgment, assigned it to him. Shoff after- wards did the like with his judgment, upon his receiving from Myers the principal of his debt and some interest, which had ac- crued subsequently to the two years' interest previously paid. After this had taken place, Bryson proceeded on his judgment, had the house and lot seized and taken in execution, condemned to sale, and sold to Myers by the sheriff for $370, who brought the money thus raised into court for distribution. Myers, as the assignee of the Shoff and Eberly judgments, claimed to retain as much of the money as would satisfy them, while Bryson, on the contrary, claimed to have his judgment paid first out of the same, the fund not being sufficient to satisfy the whole amount of the three i. 54 426 SUPREME COURT [Harrisburg [Bryeon v. Myers. | judgments. Upon this state of facts, as they appeared to exist, without any doubt, from the evidence, the jury in conformity to the direction of the court, found in favour of Myers, the defend- ant below. The counsel of the plaintiff' excepted to the charge of the court, and has assigned the same for error here. Several points were submitted by the counsel of the plaintiff to the court below for their direction thereon to the jury. They may, however, all be comprised in the two following propositions : First, if Myers agreed to pay Eppley a price for the house and lot, sufficient in amount to satisfy all the judgments binding the same, he could not claim to protect himself against the payment of the fifty dollars to Eppley, which was part of the purchase mo- ney, under the assignment which he had obtained of the Shoff and Eberly judgments. Second, if Myers paid the judgments of Shoff and Eberly, or any part thereof, without requiring or tak- ing an assignment thereof, at the time of doing so, and not until he discovered Bry son's judgment afterwards, and did this without any agreement made originally between Eppley and Myers, that the latter should take an assignment of them upon his paying them, the assignment taken by him could not avail against Bry- son's judgment. The court, however, in effect, instructed the jury, that if Eppley concealed the existence of Bryson's judgment from Myers, at the time he sold to him, and afterwards until Myers had paid the fifty dollars to him, and had likewise paid a further portion of the price of the house and lot to Shoff and Eber- ly, on account of their judgments, Myers had, though without an original agreement to that effect, a right, after having been induced thus to pay by Eppley's making him believe that there were no judgments binding the property, except Shoff's and Eberly's, to take an assignment of the judgments from Shoff and Eberly, and to claim, by virtue thereof, the amount of these judgments out of the money arising from the sheriff's sale in pre- ference to Bryson. In the direction thus given we can perceive no error. From the evidence, it is not very clear but what Myers, according to the original understanding that existed between him and Eppley, had a right to have an assignment of the Shoff and Eber- ly judgments: for Eberly testifies that, " Eppley was agreed Myers should do with the judgments as he pleased." And Eppley him- self testifies, "We (meaning himself and Myers) talked about the judgments. He was agreed to take the judgments. I was agreed to give them to him, and the men (meaning Shoff and Eberly) were agreed to take him for them. The judgments w r ere to be his, not mine." Now, it is not unreasonable to conclude from this testimony that Eppley was agreed from the first, that Myers, upon paying the judgments, should have the full benefit of them in any way that might be necessary to prevent Myers from being injured by paying the amount of them to Shoff and Eberly. IF such were the understanding and agreement originally between May 1841.] OF PENNSYLVANIA. 427 [Bryson v. Myers.] Eppley and Myers, it is too plain to be questioned that the assign- ment of these judgments to Myers by the plaintiffs therein, in con- sideration of his having paid the amount thereof to them, would en- title him to stand in their shoes, and to receive the same money that would have been coming to them from the sheriff's sale, had they not been paid, nor assigned their judgments. Suppose, however, there were no such original understanding between Eppley and Myers, it is perfectly manifest, from the evidence, that Myers was de- ceived by Eppley in regard to the number and the amount of the judgments that were liens upon the house and lot. If Eppley did not expressly tell Myers that there were but the two judgments, Shoff 's and Eberly's, he studiously concealed from him the exist- ence of Bryson's judgment ; and whether he did the one or the other, it was a fraud committed by him from which he ought and can not be permitted to claim any advantage. He by means of it got fifty dollars from Myers, the surplus of the three hundred and eighty dollars, the price of the house and lot, after deducting therefrom the aggregate of the Shoff and Eberly judgments; thus leaving the property in the hands of Myers liable to the pay- ment of Bryson's judgment, without enabling Myers to discharge it in any way whatever, or even letting him know of it. It can not be supposed that Myers would have consented to be placed in this situation, had Eppley only informed him beforehand of the Bryson judgment. Can it then be doubted that Myers, as against Eppley at least, after having been thus fraudulently in- duced to part with his money to Eppley, was not justified in tak- ing the assignment of the judgments of Shoff and Eberly as he did, for the purpose of protecting himself against loss, so far as it might be practicable to use them fairly in effecting this object. It cannot be pretended that Eppley, after doing what he did, could have required Myers to enter satisfaction upon the judg- ments so assigned, until he had first either satisfied Bryson's judgment, or obtained from Bryson a release of its lien upon the house and lot. Then why should Mr Bryson be considered in any better situation than Eppley himself. Although he be not chargeable with having participated in committing the fraud, yet there is no good reason why he should be permitted to claim a benefit from it, at the expense of Myers, as long as he parted with nothing to Myers, to enable or induce him to pay the judg- ments of prior date to his own. He had precisely the same se- curity for his debt against Eppley after Myers obtained an as- signment of the prior judgments that he had at any time before. It is not even pretended that he extended any indulgence to Ep- pley, in paying his debt, on account of the sale made to Myers of the house and lot. And, indeed, seeing no satisfaction was ever entered on Shoff 's and Eberly's judgments, there would seem to be no ground for raising a presumption that any such indulgence ever could have been given. Neither do I believe that Bryso^ 488 SUPREME COURT [Harrisburg [Bryson v. Myers.] could have claimed a preference over those prior judgments, even if satisfaction had been entered upon them by the fraudulent pro- curement of Eppley, without his showing distinctly that he had given up or parted with some right, to which he was otherwise entitled, on account thereof. For unless he could show something of this sort, he could not be said to be prejudiced or placed in a worse situation by what was done, which cost him nothing, than he was in before. Why should he profit, then, without being in anywise injured, by the fraud of his debtor? Judgment affirmed. Wilson against The Borough of Lewistown. The first section of the Act of 15th of April 1835, does not limit the power of the inhabitants of a borough or township, to assess any amount of tax for school purposes. A public officer cannot blend his public duties with his private transactions ; hence, if a collector be sued by a borough for the amount of a duplicate put into his hands for collection, he will not be permitted to set off a debt due to him by the plaintiff. An action may be maintained by the legal authorities of a borough against a collector of school tax, to recover the amount of a duplicate, put into his hands for collection by the same authorities. ERROR to the Common Pleas of Mifflin county. The Burgess and Town Council of the Borough of Lewistown, in the county of Mifflin, against Henry Wilson's administratrix. This action was brought to recover the sum of $484.76, being the balance due by the defendant of a duplicate of school tax, delivered to him by the plaintiffs for collection. The plaintiffs offered in evidence the duplicate, to which the defendant objected, on the ground that the plaintiffs had not shown that the tax was legally assessed. The court overruled the objection, and sealed an exception. The duplicate was then given in evidence, and the plaintiffs then called witnesses, who proved that the defendant had made two small payments on account of the taxes collected by him, and that he refused to collect the balance, because, as he said, the council would not make him certain exonerations. The council afterwards made the exonerations, and he still refused to pay. The defendant then offered to prove that the tax was illegally assessed, and was for a greater amount than the law authorized. May 1841.] OF PENNSYLVANIA. 429 [Wilson v. The Borough of Lewistown.j and therefore the defendant would have been a trespasser if he had attempted to collect it. This was objected to by the plaintiffs : and the court ruled that, inasmuch as the defendant had accepted the duplicate, and pro- ceeded to collect the tax, and no objection was made by the tax- ables to his proceeding to collect the balance, he would not be permitted himself to make the objection. - The defendant excepted to this opinion. The defendant then offered evidence of a debt due by the plaintiffs to him, by way of set-off*. This was also objected to, and rejected ; the defendant excepted. The court, in answer to a number of points put by the defend- ant's counsel, in substance told the jury that the defendant had shown no defence, and the plaintiff* was entitled to recover in the present form of action. Parker and Benedict, for plaintiff* in error, argued that the plaintiffs were bound to show that the tax had been legally as- sessed, and whether or not, the borough could not maintain this action. The suit should have been in the name of the school directors, who were entitled to the fund. If the collector had paid the taxes, when collected, to the borough, as their treasurer, it would not have been a good payment ; the law requires that it be paid to the school directors, or their treasurer. Act of 1st of April 1834, section 7. Hale, contra. The plaintiffs were not bound to show that the tax was legally assessed, for even if there had been an irregularity in the mode of assessing it, that would not have justified the de- fendant in his defence. 7 Law Lib. 38, 39; 15 Wend. 578; 4 Watts 341 ; 1 Watts 139. By the provisions of the Act of 1834, suits must be in the name of the boroughs and townships. The opinion of the Court was delivered by ROGERS, J. The defendant's intestate, Henry Wilson, was appointed by the plaintiffs, collector of the school tax for the borough of Lewistown. Having accepted the appointment, a duplicate was placed in his hands, on which he collected at least a part of the taxes due : suit is brought to recover the amount of the duplicate, deducting the exoneration allowed him by the town council. It appears in evidence, that he complained he had not time to collect the tax, but promised that when he had time, he would collect it. He promised to collect it, provided the town council would exonerate him, and make him certain allowances ; that this was all he asked: whereupon the town council appointed a committee, who examined his duplicate, and gave him the exonerations required. No other reason was alleged by him for not proceeding in the collection of the tax. 430 SUPREME COURT \Harrisburg [Wilson v. The Borough of Lewistown.] On the trial, the plaintiff offered in evidence, the duplicate, which although objected to, was properly admitted, because it is referred to in the plaintiff's declaration, and the plaintiff had a right to give it in evidence, whatever might have been its effect thereafter. The defendant alleged that the action could not be sustained, because the tax was illegally assessed; and for this purpose he offered to prove, that the commissioners and delegates assessed one and a half times the amount of the county tax for 1836, and that this was an additional tax by a meeting of the people ; also for one and a half times the amount of the county tax for the same year. The court refused to receive the evidence, on the ground that as the collector had received the duplicate, and col- lected part, he was bound to collect the whole, until arrested by some judicial authority; and until that is done, he should not be permitted to dispute the authority under which he acts, by proof that the tax was not legally assessed. A court cannot inquire into the irregularity of an assessment, but when a tax is attempted to be collected, without any autho- rity whatever, all who are engaged in the collection would be trespassers. Hence, if the collector had been aware that this tax was not legally assessed, he would not be bound to proceed and collect it, and thereby render himself liable to an action at the suit of those on whom he had made an illegal levy. And if this had been the case, it would be a valid and honest answer to the plaintiff's action. But here it appears that part of the money was collected by the defendant, and that the reason he did not proceed to collect the tax, was not from any well-founded fears that he would render himself liable for collecting a tax illegally assessed, but on the allegation of want of time, and because he was desirous of obtaining an exoneration, which was afterwards given to his entire satisfaction by a committee of the town council. The case, therefore, does not come before us under circumstances very favourable to the defendant. But we must take as true, what the defendant offered to prove; and the question arises, whether the tax was illegally assessed. The 1st section of the Act of the 1st of April 1834, divides the State into school divisions, and makes every ward, township and borough within the several school divisions, a separate district; and the 4th section enacts at the time therein specified, there shall be held at the county court house in each division, a joint meeting of the county com- missioners, and one delegate from each board of school directors within said county, or school division into which it shall be divided, to determine whether or not a tax for the expenditure of each dis- trict shall be levied ; and if a tax be authorized by a majority of the joint meeting, it shall be apportioned among the several districts, as county rates and levies are now by law apportioned. The duty of the joint meeting is, first to determine whether a tax shall, or shall not, be laid for school purposes ; and if the May 1841.] OF PENNSYLVANIA. 431 [Wilson v. The Borough of Lewistown.] former, to determine its amount, and to apportion it among the several districts. The meeting determine the aggregate amount for the several divisions, which consist of the city and county of Philadelphia, and the other counties in the commonwealth; but as it was supposed that the people in some of the districts, might be desirous of increasing the amount laid, it is enacted in the 7th section, among other things, that a meeting of the people in the several districts, may be called in the manner therein prescribed; and that it shall be in the power of the said meeting to decide by a majority of votes, whether they will raise for the current year, a sum in addition to that determined on by the delegate meeting aforesaid, to be applied to the common school of said district. Under the authority of this section, the people of the borough of Lewistown authorized the assessment of the tax, the collection of which was undertaken by the defendant's intestate. And if the tax was properly laid by competent authority, no question could be raised, were it not for the 1st section of the supplement to this Act passed the 15th of April 1835. This, the defendant contends, limits the power of the people, as well as the commissioners and delegates in joint meeting, to a tax not exceed- ing one and a half times the amount assessed for county purposes. In this section it is enacted, that the tax authorized to be assessed and levied by the several school divisions and districts, by the Act entitled, "An Act to establish a general system of education by common schools," passed the 1st day of April, one thousand eight hundred and thirty-four, (to which this is a supplement) shall be assessed and levied on the same articles as the State tax is now assessed and levied on, and on all posts of profit, profes- sions, trades, occupations or callings, not exceeding one and a half times the amount assessed on the same for county purposes. It is not very clear whether the legislature intended to limit the authority of the joint meeting, or whether they intended to extend the limitation to the people assembled in their several dis- tricts, as presented in the 7th section. If the latter, it is sup- posed that it would have been done in more express terms, as reasons may exist why the authority vested in persons in a repre- sentative capacity may be circumscribed, which do not apply to the citizens in their primary assemblies. The theory of our government is, that the people are the sources of all legitimate power. We are inclined to think the limitation was intended for the former, and not the latter. But this question ceases to be of general consequence, as by the Act of the 13th of June 1836, there is no such limitation. In the 4th section, the school directors of every school district are authorized to levy such an amount of tax on the district, as they may think necessary for school pur- poses : not less than equal to, nor more than treble, the amount which the district is entitled to receive out of the annual appro- priation ; but the taxable inhabitants, in meeting called for the 432 SUPREME COURT [Harrisburg [Wilson v. The Borough of Lewistown.]] purpose, may decide by ballot how much, and what additional sum shall be raised for school purposes ; keeping up the distinction between those which act as representatives, and the taxables themselves ; and this serves to show the policy of the legislature. But the argument is, that this is a good defence, because the col- lector, if he had proceeded to collect the tax, would have been a trespasser. Setting aside the irresistible conclusion that this de- fence is a mere subterfuge, inasmuch as no proof was given or offered that there was any serious opposition by the taxables to the payment of the tax, it is by no means clear that he would have been liable to damages as a trespasser. He received his duplicate from competent authority ; and was he bound to examine whether the people in the primary assemblies had exceeded the amount of the tax to be levied ? This was matter of calculation, and the amount of the excess can make no difference in the prin- ciple, for if he was bound to examine at all, he would be a trespasser, even if the meeting of inhabitants exceeded the limits prescribed by law, to the amount of one dollar, or one cent. This would be any thing but a rule of justice. I am inclined therefore to think that it would, in such cases, amount to nothing more than an irregularity in the assessment, which would not render the assess- ment void, although it might be avoided by competent authority. The court were correct in deciding that no public officer can be permitted to blend his private with his public transactions. There was therefore no error in excluding evidence that the school di- rectors were indebted to him for work done at a common school- house within the borough. Nor do we see any force in the objection, that the suit should be brought either in the names of the school directors, or the treasurer. By the 21st section of the Act of 1834, the treasurers of the several townships and boroughs are made the treasurers of the said school districts, &c. ; and the moneys, &c. are to be paid out by them, on orders drawn by the president of the board of directors, by order of the board ; but there is no authority for either to bring suit against a delinquent collector. In all other cases of delinquency, (and why not in this?) the suit may be brought, or remedy had, in the name of the boroughs or townships which are vested with corporate powers. Here, the duplicate was delivered to the defendant by the town council, who had competent authority for that purpose; and it would be against right to permit him to object that he is not accountable to them for the money he has collected, or which he was bound in duty to collect. We also think there is nothing erroneous in the answer of the court to the several points put by the defendant. In the observations which have been made, the material questions have been met, and there is nothing in any other point which requires to be specially noticed. On the whole case we think justice has been done, and therefore order the judg- ment to be affirmed. Judgment affirmed. May 1841.] OF PENNSYLVANIA. 433 Withers against Livezey. In an action upon a recognizance entered into to obtain a stay of execution upon a judgment, it is not competent for the defendant to give parol evidence to contradict, alter or explain the original judgment in which the recognizance was given. Nor is it competent in such action for the plaintiffs to give evidence of any collateral security given to the defendants to indemnify them against their liabi- lity on the recognizance. ERROR to the District Court of Lancaster county. This was a writ of scire facias upon a recognizance, entered into by the defendant, John Withers, as bail for Augustus Withers and John Withers, Jr., to procure a stay of execution upon a judg- ment against them in favour of the plaintiffs, Joseph Livezey and Charles B. Kimball, for the sum of $204.41, with interest from the 10th of July 1839. The defendant pleaded nul tiel record and nil debet, to which the plaintiffs replied that there was such a record, and took issue likewise on the plea of nil debet. On the trial of this latter issue, the counsel for the plaintiffs gave in evi- dence a recognizance entered into and acknowledged by the defen- dant before the prothonotary of the said District Court in the following words : " February 28th 1829, I hereby become bail for the defendants above-named, in the above suit, for the amount of the debt, interest and costs due by them to the above plaintiffs, in order to enable them, (the defendants) to claim the stay of execution according to law. Attest, R. F. RAUCH." " JOHN WlTHERS ["] This recognizance was entered upon the record of a suit ex- pressly referred to therein, which was also given in evidence, and showed that it was commenced on the 4th of January 1839, in the said District Court, by the plaintiffs in this case suing out a writ of capias ad respondendum, in a plea of debt on a promissory note, not exceeding $400, and requiring bail in the like sum, against Augustus Withers, John Withers, Jr., Joel Pennock and Caleb Swayne, doing business in the name and firm of A. & J. Withers & Co., returnable to the following February Term of the said court. To this writ the sheriff returned " C. C. and B. B. as to A. and J. Withers, and N. E* I. as to the others ;" and at the same time filed the bail-bond taken of A. & J. Withers and the defendant in this suit as their bail, in the prothonotary's office. After the return of the writ thus made by the sheriff, a judgment i. 55 2 M 434 SUPREME COURT [Harrisburg [Withers v. Livczcy.] was confessed thereon, on the 28th of February 1839, the before prothonotary in the following form, to wit : " February 28th 1839, we hereby confess judgment to the plain- tiffs in this suit, for the sum of two hundred and four dollars and forty-one cents, ($204.41,) with interest from the 10th day of July 183U. Witness our hands and seals, the day and year aforesaid. Signed, " A. & J. WITHERS & Co. [SEAL]. Attest, " R. F. RAUCH." On this judgment a fieri facias was issued afterwards, the stay of execution thereon having expired, returnable to December Term 1839 of the said court, whereupon the sheriff returned " nulla bona" Then the scire facias in this case was sued out to the February Term following. The plaintiffs, after giving the records of the foregoing pro- ceedings in evidence, offered to read in evidence a deed in trust dated 19th September 1839, by Augustus Withers and John Withers, Jr., to John Withers, the defendant in this suit, and Peter Reitzel, recorded the 20th of September 1839, in which the assignors preferred the said defendant for all liabilities incurred on their account. To this offer the defendant objected, and the court thereupon overruled the evidence. The plaintiffs excepted to the opinion of the court in this respect, and the court accord- ingly sealed a bill of exceptions. The defendant then offered to prove by R. Rauch and Thomas B. Withers, that the judgment was confessed by Augustus With- ers alone, and that John Withers, Jr. was not present at the time of doing it. The plaintiffs objected to this evidence being given, but the court overruled their objection; and upon exception taken thereto by the plaintiffs, sealed a bill of exceptions. After the close of the evidence on both sides, the counsel for the plaintiffs requested the court to instruct the jury that the re- cord given in evidence imported absolute verity, and must be judged of by itself; that no parol evidence could be admitted either to explain or contradict it ; and that the jury were there- fore bound to disregard the testimony of R. Kauch and Tho- mas B. Withers. The court, however, instructed the jury, that the record having been given in evidence by the plaintiffs and passed to the jury in support of the issue of fact, it was compe- tent for the defendant in maintaining that issue on his part, the issue of nil debet, to give in evidence matters relevant thereto, which were in consistency with the record and in support of it. And such were the matters stated by the witnesses mentioned ; and therefore they ought not to disregard their testimony. To this direction of the court the plaintiffs excepted. The plaintiffs assigned for error : 1. The rejection of the deed offered in evidence by them. May 1841.] OF PENNSYLVANIA. 435 [Withers v. Livezey.] 2. The admission of the parol evidence going to explain and contradict the record of the judgment given in evidence. 3. The direction given to the jury in regard to this evidence, and the misconstruction of the record itself by the court in their charge to the jury. Jenkins and Fordney, for the plaintiffs in error, in support of the second error, cited Patton v. Miller, 13 Serg. 4* Rdwle 254; Taylor v. Coryell, 12 Serg. $ Rawle 243. Reigart, for the defendant in error, cited 1 Penn. Rep. 292 ; 2 Id. 177; Act of the 16th of June 1836, Sec. 4, Parke $ Johns. Dig. 570. The opinion of the Court was delivered by KENNEDY, J. The suit here is founded upon the recognizance of the defendant, and the deed mentioned in the first error has no connexion whatever with the recognizance, so as to render it binding, or to show that the defendant had not complied with it; and would seem, therefore, to have been wholly irrelevant, and the reading of it in evidence to the jury properly rejected by the court. But the admission of the parol evidence mentioned in the second error, was, as we conceive, erroneous. The recognizance being a matter of record, could not be explained or altered by such evi- dence. It was for the court to construe and declare the effect of it as matter of law to the jury. So for the same reason the judg- ment confessed, which furnished the occasion for entering into the recognizance, could not be explained or altered by the intro- duction of parol evidence. Whether it was a judgment against one or more defendants, or against Augustus Withers and John Withers, Jr., as set forth in the scire facias, was a question to be determined by the court upon an inspection of the record merely, without any extraneous aid to be derived from such evidence. Besides, the judgment recited in the scire facias was only induce- ment to the recognizance ; and whether it was correctly recited therein or not, was a question, I apprehend, which it was not competent to the defendant to raise upon the plea of nil debet. For this purpose he ought to have put in a special plea, averring that there was no such judgment, if he conceived the fact to be so. Nil debet was an improper plea at any rate, and not at all applicable to the case; and had the plaintiffs demurred to it, must have been so held. 1 Saund. 38. n. 3; 2 Sound. 187. n. 2. In debt on a simple contract or legal liability, or for an escape, or on a penal statute, or where a deed is only inducement to an action, as in debt for rent under a lease by indenture, the general issue is nil debet, and is in such cases the proper plea. 1 Saund. 38. n. 3; 2 Saund. 187. And notwithstanding it may be, that if 436 SUPREME COURT [Harrisburg [Withers v. Livezey.] the plaintiff fail to demur to it when it is improper, it will cast upon him the burthen of proving every allegation in his declara- tion, and entitle the defendant to avail himself of any defence which he might set up under the plea of nil debet in other cases where it would be strictly proper. 5 Esp. Rep. 38; 2 Sound. 187 a ; yet it would be going too far, to say that every defence of a special nature, such for instance as a tender, 1 Chitty, PL 422, might be made under it. Having thus shown that the parol evidence ought not to have been admitted, it follows as a necessary corollary, that the direc- tion given by the court in regard to it, to the jury, was also erro- neous. Seeing it was improperly received, the court ought to have instructed the jury, as requested by the counsel for the plaintiffs, to throw it entirely out of their view. But the court also, as it appears to us, erred in charging the jury that the judg- ment confessed was only to be regarded as a judgment against one of the defendants. For from the terms in which it is con- fessed, it clearly purports to be a judgment against more than one defendant. The language employed in the confession is, " We hereby confess judgment to the plaintiffs," &c. Thus using the plural number, " We" instead of " I," as it would doubtless have been, had the confession of judgment been intended for one only of the defendants. But to show still farther and more clearly, that it was designed to be a confession of judgment by Augustus Withers and John Withers, Jr., at least, their names are actually subscribed to the confession ; for " A. & J. Withers," must be taken clearly to mean those two defendants, and can not possibly be construed to mean any others. These two defendants were served with the original process; the other two named therein could not be found by the sheriff, and consequently were not taken or served with it ; and therefore could not well be consi- dered as being in court : but Augustus Withers and John With- ers, Jr., having been arrested under the process, and given bail to answer the demand of the plaintiffs, but having no defence to make against it, could not escape from having a judgment ren- dered against them; and therefore may be considered as exclu- sively embraced in the confession of the judgment, notwithstand- ing the addition of " & Co." to the names of A. & J. Withers, subscribed thereto. This addition " & Co." must be considered as of no effect, seeing the other defendants named in the original writ, were not brought by means thereof into court, to answer the plaintiffs. But the court below seem to have considered the judgment, upon an inspection of the record, as being operative against one only of the defendants, that is, one of the Witherses, and void as to the other ; but not being able to discover from the record itself, against which of the Witherses it was good, were led into the error of admitting the parol evidence to clear up this doubt or ambiguity. If such an ambiguity had really existed, it May 1841.] OF PENNSYLVANIA. 437 [Withers v. Livezey.] would perhaps have been more correct, to have held the judgment void altogether, for uncertainty. But it is perfectly manifest from the face of the record, that the judgment was intended to operate against both the Witherses ; and that in its terms it is a judgment confessed against them both. Whether, supposing it to have been confessed by Augustus Withers, in the absence of John Withers, Jr., he had sufficient authority from John to con- fess the judgment against him, is a question that could not pro- perly arise on the trial of this cause : because the defendant being no party to it, and his rights not at all affected by it, he could not interpose such an objection as a defence, no more than special bail could the irregularity of the judgment obtained or entered against his principal. John Withers, Jr., was the only one who had any right to make such objection, as he was the only person whose rights could be affected thereby. But it would not have been competent even for him, upon a scire facias sued out against him and Augustus to revive the judgment, to have set up such an objection as a defence, under any plea that he could have devised. The judgment, though entered by the confession of Augustus against John, without authority, would only have been voidable at most, and therefore must be considered a valid judg- ment until vacated or set aside by the court, upon an application made to it for that purpose, by John himself. 2 Caines' Rep. 254 ; 2 El. Rep. 1133. Besides, it was considered by the defendant in this case, as a valid judgment against both Augustus and John Withers, Jr., at the time he entered into the recognizance ; for the terms of it are, " I hereby become bail for the defendants (in the plural number) above named, &c., in order to enable them to claim the stay of execution according to law." Now as to the defendants above named, who were in danger of having an execution issued against them, it could only be those against whom judgment was entered at that time, and they were Augustus Withers and John With- ers, Jr. There is not, therefore, the slightest pretence for saying that the defendant here is called on to pay the amount of the judgment, contrary to the form of his recognizance, in any respect whatever, and the understanding which he must have had of it when he entered into it. Judgment affirmed. I. 2M* 438 SUPREME COURT [Harrisburg Hurst against Fisher. The death of a plaintiff before suit brought, may be taken advantage of by a plea in abatement, or in bar; and if a judgment in such case be inadvertently rendered, it will be reversed on a writ of error coram nobis. ERROR to the Common Pleas of Dauphin county. William Hurst, for the use of Joseph Reed, against George Fisher. It appeared that this suit was instituted on the 4th of Novem- ber 1828, a narr. filed on the 5th of said month, and an appear- ance entered on the 26th of January 1829 ; that a judgment was entered for the want of an affidavit of defence, and on the same day a rule was granted to show cause why it should not be opened; and on the 19th of October 1829, the rule was made ab- solute and the judgment opened. On the 22d of October 1829, this entry was made upon the record : " Death of William Hurst suggested, and that he died before suit brought." After this the cause was suffered to rest in that situation until the 3d of Septem- ber 1839, when a rule was granted upon the defendant to plead in four weeks or judgment, which was served on the defendant's counsel, who, on the 5th of September 1839, filed a plea of abate- ment in due form, alleging therein that the said William Hurst died before the suit was brought. On the 2d of October 1839, a plea in bar, in form cautionary, was filed, and on the hearing of this argument a deposition of Edward Hurst, the nephew of the plaintiff, was read, clearly proving that the said William Hurst died in the autumn of 1820. This fact was not denied by the counsel of the plaintiff; and the question was, can the plea in abatement be sustained in law ? PARSONS, President. This is a dilatory plea, and all the element- ary writers on pleading concur in saying, that pleas of this character are not to be favoured in law. By a reference to all adjudications on this subject, we shall find that the court have uniformly leaned in their decisions against them, but in no case so far, I believe, as to break through the arbitrary rules of plead- ing; but these ancient land-marks of the law still remain in their undefaced and monumental vigour. Although by statutory regulations in this state many of the mandatory rules of pleading have been changed, and by our loose system of practice in some measure altered, still the courts feel themselves restrained within the defined boundaries of the com- mon law. May 1841.] OF PENNSYLVANIA. 439 [Hurst v. Fisher.] Nothing can be more clear than that at law a suit can not be brought in the name of a deceased person ; and it is equally well settled that it can, and perhaps ought to be pleaded in abatement. To this plea in abatement it is objected, that it has come too late, and should have been filed at the earliest opportunity, and that it can not be entered, and will not be recognised by the court after one imparlance. As a general principle, according to the Eng- lish rules of pleading, this is undoubtedly correct, but still it de- pends very much on the nature and character of the plea. In order to ascertain whether this objection is well founded, we must recur to the record. On the 22d of October 1829, immedi- ately after the judgment was opened, and as soon as the defend- ant could take any steps in the cause, the death of the plaintiff is suggested on the record, and that he died before suit was brought. At whose instance this entry was made, we do not know. If it was done by the plaintiff, he communicated to the court on the record, that his action as there brought could not be sustained. If that entry was made on the request of the defendant, it was in substance, although not in form, a plea in abatement. It stated a fact, which, if true, would go to abate the plaintiff 's writ. If it was not, in form, such a plea, it was the business of the plaintiff to have demurred to it specially, and assigned for cause its want of all those perfect attributes which would make it a valid and substantial plea in abatement. It was a statement of a fact so material, and of such vital im- portance to his right of recovery, that he was bound to notice it, and either move to have it stricken from the docket, or framed in such a shape as would enable him to reply to it in proper form. But he suffers it to rest for a period of ten years, then asks for a rule to plead, which I take to be in effect to reduce his plea to proper form, which is done by the defendant and is now the sub- ject of argument before us. So that deciding from the face of the record, I can not perceive on what substantial foundation this objection rests. Nor am I prepared to say but that under the adjudications of the Supreme Court in this state, the plea is not in time. The principles laid dpwn by the learned judge who delivered the opin- ion of the court in the case of Sandback v. Quigley, (8 Watts 460,) would seem to destroy the position assumed by the plaintiff's coun- sel in this case. The time when that plea shall be entertained is a matter within the sound discretion of the court. No principle is more clear than that suit cannot be brought in the name of a deceased person. It can be pleaded in abatement, or pleaded in bar of the right to recover in that suit. If pending a writ of error, the plaintiff in error dies, the writ abates, and proper representatives must be placed upon the record before the cause can be proceeded in. But it is said this action 440 SUPREME COURT [Harrisburg [Hurst v. Fisher.] is brought for the use of an equitable assignee, therefore there is a real party on the record, and for certain purposes the court will take notice of him. But had he a legal right to bring this action in his own name, under the facts disclosed ? That is not pretended. Could he use the name of a person who had no legal existence when the suit was brought ? As well might he use the name of a stranger to the contract. To entitle him to recover, he must show a legal right of action in some one who was in full life when the suit was brought. But this is said in argument to be mere matter of form, and tnat the real right of recovery of debt or damages is vested in the individual for whose use suit is brought. We think it is not mere form, it is substance ; there must be shown a valid sub- sisting right of action in a legitimate party, who has real exist- ence when the suit is brought, for the point in controversy is be- tween him and the defendant, and to which the person whose use is suggested was never in any way or manner a privy. But it is also further contended, that the provisions of the Act of the 23d April 1829 (Purd. 4S-9), give the present plaintiff the authority to continue and conduct this suit in its present form. Yet it must be borne in mind that the Act was passed nearly six months after the institution of this action, and that it is not retrospective in its operation. It applies only to actions which are commenced after its passage, except when judgments have been already rendered, and nothing in its provisions gives it an application to suits then pending. Herein the court are compelled to decide this cause as the law stood prior to its passage. That anterior to the making of this law, a suit could not be sustained in the name of a deceased person, although suggested for the use of one in full life, and the real party in interest, is manifest from the fact that such an Act was placed upon our sta- tute books. If it was a known and recognised principle of the common law, why have an Act of Assembly about it ? Why have any codifi- cation upon the subject ? Surely it is manifest the legislature did not so understand the doctrines of the unwritten law, and in their wisdom deemed it proper to make such a provision. The learned counsel who have argued this cause on the part of the plaintiff, amid their research and unceasing industry, have not directed the attention of the court to any elementary writer upon this subject, which sustains such a position, nor have they brought to our notice the reported decision of any court, who have given it as their opinion that an action can be sustained in the form in which this seems to have been brought prior to the passage of that Act. Hence we may fairly infer none could be shown. It is with extreme reluctance this court are compelled to entertain such an opinion on a question of pleading which will deprive the plaintiff May 1841.] OF PENNSYLVANIA. 441 [Hurst v. Fisher.] of a trial upon the merits of his cause, and after this long delay compel him to bring another suit. But the established, unbending rules of law control our adju- dications must guide us in the opinions which we form, and drive from our minds those sympathetic feelings for the hardship to a party's cause, which, if granted the least indulgence, would lead us astray and produce error and uncertainty in the administration of justice. The court therefore order and direct that this writ be abated. Rawn and M'Clure, for plaintiff in error, argued that the plea in abatement came too late. 1 Penn. Prac. 269 ; 6 Serg. fy Rawle 69 ; 5 Watts 374; 2 Dall. 184; 5 Wend. 72; 5 Com. Dig. Pleader D. 1 ; 1 Com. Dig. 90, Abatement T. ; 2 Serg. fy Rawle 544. J. A. Fisher, for defendant in error, contended that the death of the plaintiff is a good plea in bar as well as abatement. 1 Troub. 4* Hal. 268; 1 Bac. Ab. Abatement 1 ; 1 Chit. PL 317, 434, 436; 9 Watts 98. The opinion of the Court was delivered by ROGERS, J. On the authority of Sandback v. Quigley, (8 Watts 460) and for the reasons assigned by Mr Justice Parsons, the judgment is affirmed. The death of a plaintiff before suit brought, may be pleaded, either in abatement or in bar, because it not only suspends the action, but destroys it altogether. And when a judg- ment, in favour of or against a dead man, is inadvertently rendered, the party aggrieved may be relieved by writ of error coram nobis. Here the suit was brought before the passage of the Act of the 23d of April 1829, and stands unaffected by its emendatory pro- visions. Judgment affirmed. i. 56 443 SUPREME COURT [Harrisburg Cronister against Cronister. As between a vendor and vendee of land, the acceptance of a deed and exe- cution and delivery of bonds for the purchase money, closes the question upon the agreement, merges it in the conveyance, and precludes the parties from after- wards claiming, either on the one side an allowance for a deficiency in the land, or on the other payment for a surplus. ERROR to the Common Pleas of Adams county. William Patterson, executor of Henry Cronister, against John Cronister. This was an action of debt upon a bond, dated the 10th of Feb- ruary 1816, for the payment of $20 on the 1st of April 1839. The defendant gave the following evidence : Agreement made and concluded upon this 5th day of Septem- ber 1814, between Henry Cronister, of Reading township, Adams county, and State of Pennsylvania, of the one part, and John Cro- nister of the same place, county and state aforesaid, of the other part, witnesseth that the said Henry for and in consideration of the sum of $26.67 per acre, paid in the way and manner herein- after mentioned, hath granted, bargained, and sold, and, by these presents, doth grant, bargain, and sell unto the said John and to his heirs and assigns, all the following described tract of land, sit- uate in the township aforesaid, adjoining lands of Daniel Dear- dorfF, William Hodge, and other lands of the said Henry, contain- ing, according to a late survey, 32 acres, 61 perches and allow- ance, to be to the only proper use, benefit, and behoof of the said John, his heirs and assigns for ever. And the said John is to be allowed the sum of $266.67, the hand-money of the aforesaid land ; which sum is to remain, without interest, till a final settlement is made respecting the said Henry's estate, said John giving his bond for said sum ; and the residue said John is to pay in gales of $20, on the 1st day of April yearly, till all is paid: said Henry is to make a clear patent deed for said land as soon as convenient, said John giving his obligations for the yearly gales. And for the true performance, &c. Survey made by William Patterson, 18th of March 1813 34 acres, 61 perches, neat measure, or 32 acres, 61 perches and allow- ance. Calculation of the purchase money for 32 acres, 61 perches, at $26.67 per acre. Admitted that the bond is one of a series predicated on the cal- culation, and that defendant has paid as much as the tract of land would be at $26.67 per acre, by correct measurement. May 1841.] OF PENNSYLVANIA. 443 [Cronister v. Cronister.] David M'Millan affirmed. I made a survey of the land sold by Henry Cronister to his son John. I made it 25 acres, 94 perches. I surveyed it on the 1st day of April 1838. Admitted that the deed and bonds were drawn by William Pat- terson, the plaintiff, and that he made the survey referred to in the articles of agreement. The plaintiff then gave in evidence : Deed from Henry to John, dated 10th of February 1816, for the consideration of $863.59 ; quantity of land 32 acres, 61 perches and allowance. The court below thus instructed the jury. DURKEE, President. Admitting the facts to be precisely as alleged by the defendant, they do not constitute a defence. The case is governed by a principle of law, founded in policy and re- peatedly sanctioned by the Supreme Court, which, in the absence of fraud, precludes all inquiry as to the real quantity of the land, and leaves the defendant to pay the whole amount of purchase money, according to the estimated quantity named in the article of agreement and in the deed. You will therefore render a verdict for the plaintiff, regardless of the hardships it may involve on the part of the defendant, for the amount of the bond and interest. Stevens, for plaintiff in error, argued that the general rule seem- ed to be, that where there was an official survey, upon which the parties based their agreement, it was conclusive ; but even in such case, and in the absence of fraud, material mistake is a good ground for relief. 13 Serg. < Rawle 160; 4 Watts 405. But a question of fraud or mistake is always safely referred to a jury, and that is what we think should have been done in this case. Reed, contra. The parties in this contract adopted a survey by which they agreed to be governed, and the acceptance of the deed and giving the bonds are conclusive. 2 Penn. Rep. 533; 6 Serg. fy Rawle 438; 1 Serg. $ Rawle 160; 2 Johns. 37; 6 Binn. 106 ; 10 Watts 426. The opinion of the Court was delivered by SERGEANT, J. The defendant, in September 1814, contracted, by article of agreement, to buy of his father, at $26.67 per acre, a tract of land adjoining lands of Deardorff and others, contain- ing, according to a late survey, 32 acres and 61 perches, and was allowed to retain the sum of $266.67, the hand-money, without inte- rest, till a final settlement should be made of his father's estate, the residue to be paid in gales of $20 on the 1st of April yearly. The father agreed to make a clear patent deed on his son's giv- ing obligations for the yearly gales. Seventeen months afterwards the defendant took a deed, and gave his bonds, and when sued on 444 SUPREME COURT [Harrisburg [Cronister v. Cronister.j one of them in 1839, sets up in bar that on a measurement made in 1838, it turned out that there were but 25 acres and 94 perches. Even if the question rested merely on the article, it might well be contended that the defendant having agreed to purchase ac- cording to a recent survey, must be considered as contracting to buy according to that survey, in the same manner as if he had contracted to buy according to certain courses and distances, and the land turned out to contain less. It would be impossible to say, without evidence, what was the basis on which the parties agreed to consider it as 32 acres and allowance, whether it was by mistake or fraud, or whether the facts were known to them both at the time of contracting ; nor can we aver that the contract would have been made as it is, containing terms very favourable to the defendant as to payments, on any other basis than the one agreed on. It is possible the inequality might in some cases be so monstrous and glaring as to be of itself conclusive to show mistake or imposition : but the difference here will not warrant that, and there is nothing to show the existence of actual mistake or fraud. It would rest on nothing but conjecture, and that in opposition to the express agreement of the parties to sell and buy according to a recent survey. In Bailey v. Snyder, (13 Serg. fy Rawle 163) the court consid- ered it a sale by the acre, because no draught or survey was re- ferred to which, it might be supposed, the parties intended to adopt in order to avoid further expense. But where the sale is accord- ing to a late survey, it falls within the class of cases in which it is a sale by the quantity in gross and not by the acre. It is to be observed further, that the contract is not now to be judged of simply by the article of agreement. That has been carried into execution by the acceptance of a deed, and the seal- ing and delivery of bonds for the purchase money, which, even where the sale is to be at so much per acre, closes the question on the article, merges it in the conveyance and precludes the parties from afterwards claiming, either on the one hand an allowance for a deficiency in the land, or, on the other, payment for a surplus. Smith v. Evans, (6 Binn. 102); Bailey v. Snyder, (13 Serg. $ Rawle 162). Judgment affirmed. May 1841.] OF PENNSYLVANIA. 445 Rice against Bixler. A testator devised his real estate to his executor, to be sold, and directed the pro- ceeds to be divided among his children ; held that the children had such an inte- rest in the land, as justified them in compromising a question of boundary, if such compromise did not affect the rights of creditors. If a witness, in the course of his examination, be asked to testify respecting a transaction, before the question is answered it is competent for the other party to inquire and know whether the transaction be in writing ; and if it be, the wit- ness cannot be permitted to give parol evidence on the subject. If an action of ejectment be brought by an executor, it is competent for the defendant to give in evidence a former ejectment by the plaintiff in his individual right, to show that he claimed the land as his own, and not in his representative capacity. If land be devised to an executor, to be sold, and the proceeds to be divided among the testator's children, and the children convey the land to the execu- tor, their deeds are evidence of an election on their part, to take land instead of money. The compromise of a doubtful right is a sufficient consideration for the execu- tion and delivery of a deed. If an executor, having power to sell real estate for the payment of legacies, advise the legatees to compromise and settle a question of boundary, and they do so, such compromise is binding upon the executor ever afterwards, whether he claim the land as executor, or in his own right. If, in an action of ejectment, the defendant set up such a defence as defeats the plaintiff's action, and a second ejectment be brought by the same plaintiff, the defendant may repudiate the defence which he made in the first action, and de- feat the plaintiff's recovery upon other grounds. ERROR to the Common Pleas of Perry county. John Rice, administrator with the will annnexed, of Patrick Duffield deceased, against Joseph Bixler. This was an action of ejectment for twenty acres of land. Patrick Duffield in his lifetime was seised in fee of a tract of land, containing about 290 acres; which in 1820 he had surveyed and divided into two parts, the eastern and western part. This was done for the purpose of conveying the western part, which he supposed to contain 60 acres, to his son-in-law, Andrew M'Clure, which he did; but Andrew M'Clure, in 1824, recon- veyed the same to Patrick Duffield, who in 1825 made his will, by which he directed his executors to sell the eastern part of his land, and out of the proceeds to pay his debts, &c. which then amounted to about $1000; as to the western half, he di- rected that it should be rented by his executors, during the life- time of his wife (who was to have possession of the house and garden), and the proceeds applied to support his wife and son Robert ; and, after the death of his wife, he directed that this part should also be sold, and the proceeds divided equally between L. 2N 446 SUPREME COURT [Harrisburg [Rice v. Bixler.] his sons James and Robert, and his daughter, Mary Robinson. After the making of this will, in 1828, Patrick Duffield sold and conveyed, by courses and distances, the eastern part of his land to the defendant, Joseph Bixler, and out of the consideration money, the $1000 of debts were paid in his lifetime. He died in 1831, without altering his will, which was duly proved in the register's office, but no letters issued upon it to the executors named. It appeared that George Monroe, Esq. had made the survey and division of the land for Patrick Duffield in 1819, so as to divide off the 60 acres, which were conveyed to Andrew M'Clure ; and that, in making the calculation of the 60 acres, so as to fix the division line between the eastern and western end, he omitted one of the lines ; the consequence of which was, that the partition line (if ever it was run upon the ground, which was a disputed fact in the cause) would not close with the survey of either part, but if run on the ground at the place contended for by the plaintiff, the land in dispute would belong to the western part ; but if the line was run according to the courses and dis- tances, as contained in the deed from Duffield to Bixler, the survey would not close, but the line would embrace the land in dispute. Where this partition line was and the land affected by it was the subject of dispute. The plaintiff gave some evidence tending to show that the line was run by Monroe in 1819, and that M'Clure, while he owned the western part, occupied up to it, and that Bixler recognised it as the true line. The defendant denied that any partition line had ever been run on the ground, and proved the mistake made by Monroe in leaving out the line in his calculation ; and that if the plaintiff's line were adopted as the true one, the defendant would have but 210 acres, instead of 230 conveyed to him, and that there would be 80 acres, instead of 60, in the western end. During the progress of the trial, several bills of exception were taken, as follows : Defendant offered to prove that the courses and distances, as marked in the deed from Patrick Duffield and wife to Bixler, would, if run on the ground, include the land in dispute; and that the division line, said to be run by Esquire Monroe, in 1819, never was marked upon the ground. The first part of the offer was object- ed to by the plaintiff. That it is immaterial to this issue. That the line run on the ground is the true survey. To the last branch of the offer, the plaintiff objected, that the evidence was immaterial, and could lead to no result in this suit. Objections overruled, and exception by plaintiff. William West, a surveyor, was then called as a witness, and gave the evidence offered, and in addition that he had run a line making a partition of the two parts, by which line he gave to Bixler the quantity conveyed to him by Patrick Duffield, and still left about 75 acres in the west end. Defendant then offered articles of agreement dated 29th Decem- May 1841.] OF PENNSYLVANIA. 447 [Rice v. Bixler.] ber 1838, by John Duffield, Thomas Duffield, Joseph Robinson, and Mary his wife, and R. E. Duffield, with Joseph Bixler, adopt- ing the amicable line as run by Mr West, as the true line : to be followed with parol proof that it was executed by Joseph Robinson and wife, and Robert E. Duffield, with the knowledge, consent and advice of John Rice, the present plaintiff, who is a subscribing witness to the agreement : to be followed by a deed of conveyance from Joseph Robinson and wife, James Duffield, and Robert E. Duffield to John Rice for the quantity of land within the line run by Mr West, recognising that line as designating the true quantity. Plaintiff objected that these persons, parties to the article, had no right to the land, nor to change its boundaries in any way. All or any of these acts would be inoperative in this suit. John Rice could do no act that could affect his right as administra- tor of Duffield : he was not administrator for a year afterwards. That John Rice could not take a deed to affect his right as ad- ministrator, particularly as he was not administrator at that time, and could not give evidence for the purpose now offered, of affect- ing this suit. That they do not import what is alleged : they are inoperative, because they do not prove any thing as to the right of the land being in or out of Duffield, or any thing as to whether Monroe's or West's line is correct. At all events, the proof of the payment of debts should precede the other proof. Defendant offered to prove in addition to his foregoing offer, that the debts of P. Duffield were paid in his lifetime by the Bixlers out of the purchase money of the land sold to them, and further, that John Rice is now in the actual possession of the land, claim- ing it as his own right, and adversely to the trust created by P. Duffield's will, and that he is the only party in interest in this suit. Plaintiff objected to defendant's offer, for same objections as above stated. Objections overruled. Exceptions taken by plaintiff. The agreement of John, Thomas and Robert Duffield and Joseph and Mary Robinson with Joseph Bixler, dated 29th De- cember 1838, after reciting the deed of P. Duffield to Bixler, of 29th January 1838, for 231 acres 9 perches, thus proceeds : " And whereas it appears, by a recent accurate survey and calculation, that the said tract does not contain the number of acres named in the conveyance, and (as it is believed) was in- tended to be conveyed, agreeably to the contract between the parties; and also that the part of said tract now belonging to the heirs of said Duffield, contains a much greater number of acres than is named in said conveyances (M'Clure's). We therefore, as heirs of said P. Duffield, believing as we do, that in justice and equity the said Joseph Bixler (to whom John and Jacob released, &c.) is entitled to the number of acres named in the conveyance made to him, do agree that (so far as we and each of us have an 448 SUPREME COURT [Harrisburg [Rice v. Bixler.] interest in the estate of our said father) the lines on the north and south side of the land conveyed as aforesaid to the Messrs Bixlers, be extended 17 perches along the lines of that part of the tract belonging to the heirs of our said father ; and that the line lately run by William West, Esq., between the two points thus formed, (being parallel with the first supposed division line,) shall be hereafter considered, to all intents and purposes, the division line; the same to be a remedy for the mistake by making up the quantity of land sold to the said Bixler. And on account of the consideration sum so paid by the said Bixler to our father, we do, for ourselves, our heirs and assigns, (but for no other of the heirs of our said father,) hereby renounce all pretensions to any right, title, interest, or claim, in or to the land lying between the divi- sion line erroneously run and named in said conveyance, and that hereby agreed upon; and that the same be possessed by said Bixler. JOHN DUFFIELD. THOMAS DUFFIELD. JOSEPH ROBINSON. her . MARY + ROBINSON. mark. ROBERT E. DUFFIELD. Test. ROBERT ELLIOTT, GEORGE BAKER. Witnesses to signing of all but Mary Robinson. Witness to the mark of Mary Robinson, JOHN RICE. The defendant then offered Robert E. Duffield as a witness. The plaintiff objected to him as being incompetent, because of his interest in the result. The court overruled the objection, and sealed a bill of exception. The witness testified as follows : John Rice is in possession of the 74 acres adjoining Bixlers. Had some conversation with Rice ; he bought my interest in the land. I am a tenant of the land held under Rice. Hall farms it; he lives on Rice's other farm. I signed the agreement 29th De- cember 1838. On the day we articled, me and Rice had some conversation about the line. Rice said we should settle it with Bixler, and not have any trouble about it. We were talking about the difference between West's line and Monroe's line. He did not say that he did not want to buy until that was settled. I had not signed this agreement at the time I articled with Rice. At the time I articled with Rice, West had made the line. It was last January a year (1839) I articled with Rice. Rice then knew there was a disputed line, and he said he should settle that, and have no bother. I did not sign the agreement until after we had articled. Rice and me had some conversation about this May 1841.] OF PENNSYLVANIA. 449 [Rice v. Bixler.] article of 29th December, 1838, after he and I articled, and he agreed I should sign it. Cross-examined. Plaintiff offered to ask witness whether he did not describe and sell to Rice, all his interest in the land up to the line as run by Monroe. Objected to ; and defendant proposed to ask witness whether what he sold to Rice is not in writing. Which was objected to by plaintiff; that the defendant cannot stop the cross-examination to ask this question, and after the deed they have given in evidence. Plaintiff's objection overruled ; exception taken. Witness. The agreement of sale between me and Rice is in writing. Defendant now objected to plaintiff's question, as offered and written out at commencement of the cross-examination. Plaintiff read agreement between Robert E. Duffield and John Rice, dated 8th of January 1839 ; consideration $125 ; conveys one-ninth part of 75 acres, more or less. The defendant then offered in evidence the record of a former action of ejectment, by John Rice against Joseph Bixler, for the same land in which a verdict and judgment were rendered for the defendant. This for the purpose of showing that John Rice in the action trying claimed the land in his own right, and not as administrator, with the will annexed, of Patrick Duffield, de- ceased. The plaintiff objected to the evidence ; but the court overruled the objection and sealed a bill of exceptions. The plaintiff then gave evidence to prove that there were debts of Patrick Duffield's estate yet unpaid to the amount of $40 or $50 ; and for the purpose of showing that the defendant was estopped from making defence in this action by the defence made in the former one, he called John Reed, Esq., sworn. When the trial came on, and the jury sworn, it was admitted the title was in Patrick Duffield originally. Plaintiff gave in evidence the will of Patrick Duffield ; also the three deeds from three of the children to plaintiff, James, Robert, and Mrs Robinson and husband. It was admitted that Bixler had purchased the eastern end. Defendant gave no evidence. It was suggested plaintiffs could not recover on their own showing. I stated to the court it would be unnecessary to consume time if that point was decided against us ultimately. The objection was that the heirs could not convey land ; if they had any interest, it was money and not land. I stated to the court briefly my views to sustain the plaintiff. The court intimated a pretty strong opin- ion against us, that we could not recover in that aspect of the cause. Some positions were stated by Mr Watts for defendant, but riot argued. It was then agreed that a judgment should be entered against the plaintiff. A motion for a new trial entered without argument, and held over to April court : in the mean i. 57 2N* 460 SUPREME COURT [Harrisburg [Rice v. Bixler. | time the motion was withdrawn, judgment entered, and this suit brought. The plaintiff requested the court to charge the jury upon the following points : 1. That the sale, by the testator, of the eastern half of the land, does not revoke his will as to the western half; but the devise as to it continues ; the whole to be sold, and after paying debts and some small legacies, the whole to be divided in money ; that the title to the land therefore was vested in the executors. 2. So long as debts, funeral expenses, legacies, &c., remained unpaid, it was not in the power of some of the legatees to elect to take the property as land ; and the right to the land is still in the administrator with the will annexed. 3. The deeds by the legatees to Rice do not amount to an election to take the property as land, so as to devest the title of the exe- cutor or administrator with the will annexed ; they are more pro- perly assignments of the legacies. 4. That the article of agreement of Patrick Duffield to Bixler, and the deed to him, only convey the land as far as the line marked on the ground, as surveyed by Mr Monroe, and long re- cognised and treated by all parties as the true boundary, and give no right whatever to change the division and take in the land in dispute. 5. The line marked on the ground, treated as such by all par- ties, ascertained by an old fence, marked corner, and trees, and uniform, corresponding occupancy and claims for twenty years and more, must be taken as the true boundary, and will control the courses, distances, or quantities in the deeds or drafts, even where there is a purchase by the acre, and d, fortiori here, where the sale was a lumping one, not by the acre, but for a lumping price, to such known, distinct, and visible boundary. 6. The deed or agreement of John Duffield, Thomas Duffield, Robinson and wife, and Robert to Bixler, if without any consider- ation paid by him to them, and if the facts supposed above are true, does not vest any title in the land in Bixler ; and at all events, as there is no deed or agreement in writing, or parol, by the other legatees conveying said land to Bixler, said agreement can not defeat plaintiff's right to recover in this suit. 7. If any of the debts of Duffield, or of the legacies given by him, or if the expenses of the funeral, or administering the estate, are still unpaid, the title to the land is still in the administrator with the will annexed, and no act or election by any or all the legatees can devest it ; and it lies on defendant to prove all these to be paid, or he must fail. 8. If Bixler, on the trial of the ejectment of Rice v. Bixler, made defence that Rice, claiming under deed from the heirs and legatees, could not sustain a suit for the land ; that those legatees were only entitled to money legacies, and not land, and the title was May 1841.] OF PENNSYLVANIA. 461 [Rice v. Buder.] in the executors ; and, on the defence, obtained a judgment in that case in defendant's favour, he can not now turn round and assert the title to the land to have been in those heirs and legatees, and in Rice under them, nor in himself under them, nor deny that the title to the land is in the administrator with the will annexed. Defendant's points : 1. If the jury believe that after the making of his will, Patrick Duffield made a sale of the eastern part of his tract of land for the purpose of paying his debts mentioned in his will, the sale of 60 acres 141 perches, and the objects and trusts created by the said will have thereby failed, it is a revocation of the will, and Patrick Duffield died intestate; particularly if the jury believe, that when Patrick Duffield died he had as much personal property as would have paid all his debts and funeral expenses, if he had chosen to appropriate the same to that object by a will. 2. If there be no evidence in the cause, that James Duffield and Robert Elliott, the executors named in the will of Patrick Duf- field, ever renounced their executorship, the letters of administra- tion, with the will annexed, to John Rice, the plaintiff, were ille- gally granted, and vest in him no right to recover in this suit. 3. If the jury believe that John Rice purchased out the right, title, and interest of James Duffield, Robert E. Duffield, and Robin- son and wife, to the estate of Patrick Duffield, deceased, of which he died seised, at the times and under the circumstances given in evidence, by the agreements and deeds for that purpose, and that he knew at the time of his purchase that there was a mistake as to the line between Patrick Duffield and Bixler, and that the same had been rectified by the agreement of 29th December 1838, in an amicable manner, and especially if he had advised the par- ties to that agreement to sign it, and thus settle all dispute about the division line, he can not recover in this action. 4. If the jury believe the facts in 3d point, and that John Rice is now claiming the land in his own right, and not for the purpose of executing any trust created by the will of Patrick Duf- field, he can not recover in this action. 5. That the agreement between John Rice and Robert E. Duf- field, given in evidence, affords proof that the said John Rice is not prosecuting this action for the benefit of the widow of Patrick Duffield, inasmuch as he binds himself by that agreement to pay the widow the interest of the one-third of the purchase money. HEPBURN, President. The plaintiff's first point read. Answer The sale by the testator of the eastern half of the land, would not revoke his will as to the western half, and the devise as to it would continue, unless the purpose for which it was designed failed ; and in that event, no purpose of the devisor requiring a sale of the property, the parties entitled to it have it in their power to consider the property as land, and not as money. But if the purpose intended by the testator has not failed, as intimated 452 SUPREME COURT [Harrisburg [Rice Y. Bixler.] by this point, then the title would vest in the executors, as here indicated. Second point read. Answered in the affirmative. Third point read. We think these deeds do amount to an election by the parties to them, to take as land so far as they go. Fourth and fifth points read. These points, if you find the facts as here stated, we answer in the affirmative. The law un- doubtedly is, that the marks upon the ground are the true bounda- ries. You must, however, to answer this point intelligibly, so far as the facts are concerned, recur to the whole testimony, and from it determine whether they are as here indicated, or as stated by the defendant in his points ; which I will presently read to you. And if the facts are as he contends, that no such marks were there, &c., but that the lines were made after Bixler had purchased, by mistake, and subsequently corrected by the parties in the manner indicated by the testimony; then the result may be different. If, however, you find the facts as here stated for the plaintiff in these points, then we instruct you the law is as he states. Sixth point read. This point we cannot answer in the affirma- tive. We think there was a sufficient consideration, if you believe the testimony. Seventh point read. This point, as a general legal proposition, would be true : but if the jury believe the facts as here stated in the defendant's third and fourth points, that he took out the letters of administration after he became the owner of the land, with a knowledge of all the facts in relation to the mistake in the line and its correction afterwards, and that there was personal pro- perty to the extent indicated by the latter part of defendant's first point, we cannot instruct you the defendant must fail, by reason of the small amount of debt shown to exist against the estate of Duffield at this late date. Eighth point read. The facts stated in this point were not the only defence taken in the case referred to, nor the only ground on which the judgment was given for the defendant there : besides that, it was between other parties and in different rights; we can not, therefore, instruct you the defendant is precluded from deny- ing the title to the land being in the present plaintiff. First point of defendant. We cannot answer this point in the affirmative. Second point. Answered in the negative. Third and fourth points read. Answered in the affirmative. Fifth point read. This agreement with the other evidence in the cause, is evidence in relation to whose benefit this suit is pro- secuting; the effect and benefit, however, you must determine. The whole facts of the case are for you to determine, in accord- ance with the law as we have stated it. The case is a difficult one, and I have had time, barely time, to read over the points May 1841.] OF PENNSYLVANIA. 453 [Rice v. Bizler.j previous to answering them. If I am wrong, the Supreme Court will set us right. Apply the facts to the law as I have stated it, and find such verdict as you think proper. The errors assigned embraced all the bills of exception, and the answers of the court to all the points put. Alexander, for plaintiff in error. Walts, for defendant in error. The opinion of the Court was delivered by KENNEDY, J. The first error assigned is an exception to the opinion of the court admitting evidence to prove that the courses and distances, as stated in the deed of conveyance from Patrick Duffield and wife to the Bixlers, would, if run on the ground, in- clude the land in dispute ; and that the division line, said to be run by George Monroe in 1819, never was marked on the ground. It is impossible to perceive any valid objection to the admission of this evidence ; for certainly it was evidence which tended to show that the land in dispute, in this action, was included in, and con- veyed by the deed from Duffield and wife to the Bixlers ; and whether it was so included and conveyed, or not, seems to have been the chief matter in issue. The second error is also an exception to the opinion of the court, admitting articles of agreement, dated December 29th, 1838, which were entered into by John Duffield, Thomas Duffield, Joseph Robinson and wife, and R. E. Duffield, with Joseph Bixler, making a line, run on the ground by William West, the true boundary of the land on that side, as conveyed by Patrick Duf- field, their ancestor, and from whom both parties claimed, to be read in evidence, connected with an offer to give further evidence, showing that the agreement was executed with the knowledge, and by the advice of Rice, the plaintiff; and that he, in taking a conveyance from James Duffield, Robert E. Duffield, and Joseph Robinson and wife, of all the interest which they had respectively in the estate of the said Patrick Duffield deceased, had excluded the land in dispute, by describing it according to West's survey. This evidence was unquestionably not only admissible, but very material to the issue between the parties ; for, as will be shown in the sequel, Rice, the plaintiff, under one aspect of this case, had not even the shadow of right to recover in it, unless it was under the conveyance just mentioned, and which the defendant pro- posed to give in evidence. But even supposing that the plaintiff, as the administrator with the will annexed of Patrick Duffield, had such a right under the will as would have entitled him to recover all the land belonging to the testator, at the time of making his will, which he did not part with afterwards in his lifetime, still the parties to the articles of agreement had such an interest in the land, as would have enabled them to settle a mere 454 SUPREME COURT [Harrisburg [Rice v. Bixlcr.] question of boundary connected with it ; unless indeed it could have been shown that such settlement would have affected the rights of the creditors of the testator. The third error is an exception to the competency of Thomas Duffield, as a witness for the defendant below, taken on the ground of interest, as it was alleged. The court below decided that no interest, such as would render him incompetent, had been shown, and therefore overruled the objection made to him by the counsel of the plaintiff. It is sufficient to say that no interest has been shown here, going to affect his competency, and therefore he was properly admitted to testify as a witness on behalf of the defend- ant below. It seems also that the plaintiff did not consider him incompetent to testify for him, for he made him his witness after- wards, as it appears in the course of the trial. The fourth error is an exception to the opinion of the court, in permitting the counsel of the defendant to ask Robert E. Duffield, while he was undergoing a cross-examination by the plaintiff's counsel, whether what he sold to Rice (meaning the plaintiff) was not in writing. This question was put to the witness in connection with an objection to his answering a previous question, just put by the plaintiff's counsel to him, asking him whether he did not de- scribe and sell to Rice all his interest in the land, up to the line as run by Monroe. It was certainly correct to ascertain first from the witness, before he answered the question asked by the plaintiff's counsel, whether what he had sold to the plaintiff had not been reduced to writing between them ; because if it had, the writing was better evidence than anything that the witness could state from his recollection on the subject; and hence, what he would have stated in answer to the plaintiff's question, could not be admitted as evidence at all in the case. The fifth error is an exception to the admission in evidence of the record of a former action of ejectment brought by the plaintiff in this case, but not as administrator with the will annexed of Patrick Duffield, against the present defendant for the same land. This evidence, it seems, was offered and given for the purpose of showing that the plaintiff claimed the land in that action, in his own right, and not as administrator under the will, and that upon trial a verdict and judgment were given against him. We think the evidence was admissible, and such as possibly might have been of some weight in turning the scale in favour of the defend- ant in this action, and therefore cannot say it was inadmissible. The sixth error is an exception to the court's permitting the defendant's counsel to ask George Baker, a witness, sworn on behalf of the plaintiff, to give evidence on the trial of the cause, " what the talk was, referred to in his examination in chief," when he stated that " Bixler and Duffields had some talk about the quantity of land, because they had not their papers with them." If we judge from the answer of the witness to the question, it May 1841.] OF PENNSYLVANIA. 455 [Rice v. Bixler.] would not appear to have done the plaintiff any harm, nor to have had much bearing upon the cause in any way. We there- fore think there is no error in it. The remaining errors, no less than nine in number, are ex- ceptions to the instruction given by the court to the jury, all excepting the last, upon points submitted for that purpose by the counsel of the plaintiff below. The seventh error is the first of them, and is founded upon the answer of the court to the plaintiff's third point, in which his counsel requested the court to charge the jury, "that the deedsmade by the legatees, (meaning James Duffield, Robert E. Duffield, and Robinson and wife,) to Rice, the plaintiff, do not amount to an election to take the property as land, so as to devest the title of the executors or administrator with the will annexed ; they are more properly assignments of the legacies." To this the court answered, "We think these deeds do amount to an election by the parties to them, to take as land so far as they go." It is very evident from the tenor of the deeds, that the grantors considered themselves as having an interest in the land, as land, and to an extent that was inheritable too ; for the land is expressly men- tioned as the subject matter of the conveyance, and words of in- heritance are likewise employed therein in conveying it. It is also equally evident that the grantee, having taken the deeds in the form in which they are, must have been of the same opinion. If the plaintiff, however, as administrator, had an interest in the land, or an authority over it under the will, for the purpose of paying the debts of the testator, those deeds could not divest him of it ; nor did the court tell the jury, in their answer, that it did ; but strictly, perhaps, in order to have answered the point fully, they ought to have expressed their opinion as to the effect of the deeds in this particular. This defect, however, seems to be sup- plied by their answer to the plaintiff's first and second points, where it is answered in his favour. The eighth and ninth errors are exceptions to the answers given by the court to the plaintiff's fourth and fifth points. The plain- tiff's counsel below, in propounding these points to the court, have assumed matters of fact, which were not conceded by the opposite party, but actually denied, and evidence given by him, tending to prove that they were not as stated by the counsel of the plaintiff in these points. The court, therefore, on this ground might have declined answering them, because counsel in stating their points have no right to assume facts that are controverted, and which from the evidence the jury may properly find do not exist. In such case, if the counsel wishes to have the direction of the court to the jury as to the law that may become applicable, he ought to state the facts hypothetically. But the court, as it would seem, being willing to meet the request of the counsel so far as they could, told the jury, " These points, if you find the facts as stated 456 SUPREME COURT [Harrisburg [Rice v. Bixler.] in them, we answer in the affirmative. The law undoubtedly is, that the marks made upon the ground, are the true boundaries. You must, however, answer the points intelligibly so far as the facts are concerned, view the whole testimony, and from it deter- mine whether the facts are as therein indicated, or as stated by the defendant in his points, which we will presently read to you : and if the facts are as he contends, that no such marks were there, &c., but that the lines were made after Bixler purchased, by mis- take, and subsequently corrected, by the parties, in the manner indicated by the testimony, then the result may be different. If, however, you find the facts as there stated for the plaintiff in these two points, then we instruct you the law is as he states." This direction was not only as favourable to the plaintiff as he had any right to ask, but it was going as far as the court could well go, without intrenching upon the province of the jury, by deciding on the facts. The tenth error is an exception to the answer given by the court to the plaintiff's sixth point. The direction requested in this point was, that " the deed or agreement of John Duffield, Thomas Duffield, Robert E. Duffield and Robinson and wife to Bixler, if made without any consideration paid by him to them, and if the facts above supposed are true, does not vest any title to the land in Bixler; and at all events, as there was no deed or agreement made either in writing or by parol, by the other legatees, convey- ing said land to Bixler, said agreement could not defeat the plain- tiff's right to recover in this suit." To which the court replied, " This point we cannot answer in the affirmative. We think there was a sufficient consideration, if you believe the testimony." The objection to this answer is, that it only meets the point in part, and also that, so far as it goes, it is erroneous. The deed or agreement here referred to, was not properly a deed of convey- ance, nor intended by the parties to be so, but of compromise and settlement of boundary, fixing definitively the location of a division line of land, including the land in dispute, which Patrick Duffield. the father of John Duffield, Thomas Duffield, Robert E. Duffield, and Mrs Robinson, in his lifetime, had sold and conveyed to Bix- ler. A dispute, according to the evidence, had actually arisen between the parties in regard to it, and the only object of the deed or writing was, to adjust and settle it. Now, it is too well settled to be questioned, that an agreement of compromise, or set- tlement of a dispute between owners of adjoining lands, as to the division line between them, contains in itself a sufficient conside- ration to make it binding, when fairly made, on both parties. The peace and quiet of society require that it should be so. In this case it must be taken, that the agreement only determined the precise and true location of the land, which Patrick Duffield, the father, had sold to Bixler and been fully paid for in his lifetime by the latter. The residue of this point, which the plaintiff com- May 1841.] OF PENNSYLVANIA. 457 [Rice v. Bixlcr.j plains was not answered, was, we think, substantially answered in his favour in the answers given by the court to his first and second points, when the court yielded their assent to the proposi- tion of the counsel for the plaintiff, that the title to the land, which properly did belong to the testator at the time of his death, be- came thereupon vested by operation of the will in the executors, and that so long as debts, &c., remained unpaid, it was not in the power of some of the legatees to elect to take the land as land ; and that the right thereto still remained in the administrator with the will annexed. This was certainly going as far as the plaintiff had even the colour of right to claim. The eleventh error is an exception to the opinion given by the court to the seventh point submitted by the counsel of the plain- tiff below. By this point the court were requested to instruct the jury that, " if any of the debts of the testator or of the lega- cies given by him, or of the expenses of the funeral, or of admin- istering on the estate, were still unpaid, the title to the land was in the administrator with the will annexed, and no act or election by any or all the legatees could devest it ; and it lies on the defend- ant to prove all these to be paid, or he must fail." The court replied, " This point, as a general legal proposition, would be true. But if the jury believe the facts are as stated in the defendant's third and fourth points, that the plaintiff took out the letters of administration after he became the owner of the land, (meaning after he obtained a transfer from James Duffield, Robert E. Duffield, and others) with a full knowledge of all the facts in re- lation to the mistake in the line, (meaning the division line,) and its correction afterwards ; and that there was personal property to the extent indicated by the latter part of the defendant's first point, we cannot instruct you that the defendant must fail by reason of the small amount of debt shown to exist against the estate of Duffield, at this late date." The third and fourth points of the defendant referred to here by the court, requested the court to direct the jury, " if they believed that John Rice, the plaintiff, purchased out the right, title and interest of James Duffield, Ro- bert E. Duffield, and Robinson and wife, to the estate of Patrick Duffield deceased, of which he died seised, at the times and under the circumstances given in evidence by the agreement and deeds for that purpose, and that he knew at the time of his purchase that there was a mistake as to the line between Patrick Duffield and Bixler, and that the same had been rectified by the agree- ment of the 29th of December 1838 in an amicable manner, and especially if he had advised the parties to that agreement to sign it, and thus settle all dispute about the division line; he cannot recover in this action/' The few and very small claims of which evidence was given against the estate, if not actually paid, were barred by the statute of limitations, and therefore no longer charge- able upon the estate, so that the plaintiff could have no right to i. 58 2o 468 SUPREME COURT [Harrisburg [Rice v. Bixler.] recover the land, as administrator with the will annexed for" the purpose of paying debts under the provision to this effect contained in the will. Culpepper v. Aston, (2 Chan. Cas. 115; S. C. 223) ; Roper v. Raddiff, (9 Mod. 171) ; S. C. 2 Eq. Ca. Mr. 508. But, admitting the estate to be liable to the payment of the small amount of the claims exhibited, it was impossible that the rights of the creditors could be affected by the settlement of the division line agreed on by the heirs or devisees of the testator, as it left land clear of all dispute of greatly more than sufficient value to satisfy the amount of those claims. Hence it appears to me, that it was competent for the heirs or devisees to settle the dispute about the division line with Bixler, as their rights alone were to be affected by it ; and though it seems that all the heirs or de- visees of the testator were not in the country to join in the settle- ment of the line, yet until their clear dissent shall be shown, it ought to be regarded as conclusive upon the plaintiff as adminis- trator cum testamento annexo, and most clearly so if he advised it, whether he claims to recover the land as administrator or as as- signee of James Duffield, Robert E. Duftield, and Robinson and wife. The twelfth error is to the answer of the court on the plaintiff's eighth point ; in stating, as the counsel for the plaintiff in error alleges, to the jury matters as facts which were not in proof, in- stead of answering the point as put, and in refusing to answer it as put. By this eighth point the court were requested to instruct the jury, that "if Bixler, on the trial of the ejectment of Rice against Bixler, mentioned in the fifth error, made the defence, that Rice, claiming under deeds from the heirs and legatees, could not sustain a suit for the land ; that those legatees were only entitled to money legacies, and not land, and the title was in the execu- tors; and on this defence obtained a judgment in that case in de- fendant's favour, he cannot now turn round and assert the title to the land to have been in those heirs and legatees, and in Rice under them; nor in himself under them, nor deny that the title to the land is in the administrator with the will annexed." To this the court responded, " The facts stated in this point were not the only defence taken in the case referred to ; nor the only ground on which the judgment was given for the defendant there. Besides that, it was between other parties and in different rights ; we can- not, therefore, instruct you that the defendant is precluded from denying the title to the land being in the present plaintiff." We think it would have been error in the court to have instructed the jury as the plaintiff's counsel requested. No authority has been adduced to show that the defendant cannot, in a second action of ejectment, brought against him for the same land, repudiate the title which he set up to defeat the plaintiff in the first. One ac- tion of ejectment, in which there has been a trial, verdict, and judgment, does not conclude the parties. Suppose the defendant, May 1841.] OF PENNSYLVANIA. 45p [Rice v. Bixler.] on the trial of the first action, were to defeat the plaintiff's reco- very, by showing an outstanding title in a third person ; and that the plaintiff thereupon purchased that outstanding title, and then brought a second ejectment, it will scarcely be pretended, I think, that the defendant, on the trial of it, would be precluded from setting up another outstanding title in a different person, still better than the one which he used on the trial of the first action. The plaintiff in an action of ejectment must recover upon the strength of the title which he shows to be vested in him, unless there has been some relationship between him and the defendant, such as landlord and tenant, or the plaintiff be the purchaser of the defendant's interest in the land, whatever it may have been, at a judicial sale, where the defendant is estopped from denying the plaintiff's right to recover. But it is clear that in the pre- sent case, there is nothing of the sort to create an estoppel on the part of the defendant. The thirteenth error, which is an exception to the answer given by the court to the defendant's third and fourth points, has been passed on already, in what has been said on the eleventh error. The fourteenth error is an exception to the answer given by the court to the fifth point of the defendant, because the court did not answer it in the negative. The defendant by this point re- quested the court to instruct the jury, " that the agreement between John Rice and Robert E. Duffield, which was given in evidence, afforded proof that the said John Rice was not prosecuting this action for the benefit of the widow of Patrick Duffield, inasmuch as he bound himself thereby to pay the widow the interest of one- third of the purchase money." To which the court replied, " This agreement, with the other evidence in the cause, is evidence in relation to whose benefit this suit is prosecuting. The effect, and benefit of it, however, you must determine." We can perceive no error in this answer ; for why should the plaintiff agree to pay the widow one-third of the whole purchase money of the land, if it were to be sold for the purpose of paying debts of the testator? There is nothing in the fifteenth, which is the last error as- signed. Judgment affirmed. 460 SUPREME COURT [Harrisburg Parker against Lancaster County. County commissioners have an unqualified power to approve or disapprove the accounts of a teacher of poor children, under the Act of the 4th of April 1794, in a township which refuses to accept the provisions of the general school law. ERROR to the Common Pleas of Lancaster county. James Parker against Lancaster county. Special verdict. " Ephrata township has not accepted the school law passed on the 13th of June 1836. James Parker is the teacher of a school, and as such, taught Henry Fritz a poor child, returned as such in that township, for the term of ninety-four days, for which he charges $2.82. The trustees of the school of James Parker, certify under their hand, that they have examined the day-book, the account and its different items, of the said James Parker, and find the same just and correct ; and they also certify, that the three cents per day charged, is agreeably to the usual rate of charging for tuition in the said school. The account and certificate above referred to, are hereto an- nexed and made part of the case. The commissioners of Lancaster county refuse to approve of the above bill, on account of the amount thereof, and draw their order on the county treasurer for the amount of said bill. If the court should be of opinion, upon the above statement of facts, that the commissioners of Lancaster county are bound by law to draw their warrant upon the county treasurer for the amount of the above bill, then judgment to be rendered for the plaintiff. If the court be of opinion that the commissioners have a dis- cretionary power to approve or disapprove of the said bill, on account of the amount thereof, then judgment to be rendered for the defendant." CHAMPNEYS, President, expressed the regret of the court, that in a case presenting so just and reasonable a claim on the part of the plaintiff, the law was against him. The Act of Assem- bly vested the power in the commissioners, and the legal construc- tion given to it in the case of The Commonwealth v. County Com- missioners, (5 Binn. 536) seemed to be conclusive that the power was uncontrollable. JV. Ettmaker, for plaintiff in error, argued that it could not have been the intention of the legislature, to give power to the May 1841.] OF PENNSYLVANIA. 461 [Parker v. Lancaster County.] commissioners to defeat the whole object of the law, by withhold- ing their approval of a bill however reasonable. They may refuse to approve any bill, and thereby say the poor shall not be taught at the county expense. Long, for defendant in error, referred to the cases in 5 Binn. 536, and 1 Serg. & Rawle 195, as conclusively fixing the construc- tion of the Act of Assembly in question. The opinion of the Court was delivered by ROGERS, J. A construction is given to the Act of the 4th of April 1794, in The Commonwealth v. County Commissioners, (5 Binn. 536.) That case is in point, for there is nothing in the spe- cial circumstances here, to take it out of the principle there ruled. The legislature have vested the county commissioners with an unqualified power to approve or disapprove the account of the teacher of poor children, and as this power cannot be brought within the class of ministerial duties, but is an act which requires deliberation and judgment, we cannot examine the validity of the reasons given in support of their decision. Although the com- missioners, who are inferior officers, may be compelled by man- damus, to perform the duty which the law assigns them, yet they cannot be directed as to the manner in which it shall be performed. Of this they are the exclusive judges, as is clearly intimated in 5 Binn. ; and if any inconvenience, as is apprehended, should arise from this construction, the legislature alone can apply the remedy. As yet they have not thought proper to remedy the evil, if it be one, although many years have elapsed since the case was ruled, to which reference has been made. The case in Binney does not depend on the nature of the remedy, for that cannot alter the principle ; but it is ruled on the supposition, that it was the intention of the legislature to vest the commissioners with an unlimited and uncontrolled power of approval. The return to the mandamus was a general return of disapproval, without assigning any reasons, and this would have been clearly insufficient, if the construction of the Act had been as the de- fendant contends. Judgment affirmed. I. 2o* 4d2 SUPREME COURT [Harrisburg Dickinson College against Church. In a scire facias upon a mechanic's lien against the owner of a building, and the contractor who constructed it, by him who furnished the lumber, in which it appeared that the contractor had been fully paid for his work and materials, he is not a competent witness for the owner. But he may be made competent by a release from the owner for his liability over to him for costs, to which he might be subjected in the event of a recovery against him. In a scire facias upon a mechanic's lien against the owner of a building, and the contractor who constructed it, the plaintiff may give in evidence the declara- tions of the contractor as to the materials received and the amount remaining due, but such admissions ought to be received with great caution, and subjected to the nicest scrutiny ; but his declarations that the lumber was received on the Credit of the building, are not evidence. In such case, it is competent for the defendant to give evidence to prove that the amount of the lumber charged in the plaintiff's account, is greatly more than could have been put into the building. If part of an account filed as a mechanic's lien be for lumber furnished to the contractor before he entered into the contract, which could not be a lien, and a part afterwards which was used in the building, and there be a credit in the ac- count of the lumber-man for a payment, it may be referred to the jury to deter- mine whether the payment shall be applied to that part of the account which was a lien, or that which was not. ERROR to the Common Pleas of Cumberland county. Robert R. Church against Trustees of Dickinson College, own- ers, and Henry Myers, contractor. Scire facias sur Mechanic's Lien. The claim filed was for boards, planks, scantling, joists, shin- gles, &c., alleged to have been furnished to Henry Myers, for the use of the new academy at Carlisle, the bill for the same com- mencing the 22d of January 1837, and ending 13th November of that year, said stuff being furnished to Myers at various times between those dates. Amount of same, $1477.34 1837, June 26, by cash for lumber first got, receipt for same, 400.00 $1077.34 The contract between Myers, the contractor, and the trustees of Dickinson College, owners, for building the grammar school, admitted to have been made 6th of April 1837. The book of original entries of R. R. Church was then pro- May 1841.] OF PENNSYLVANIA. 463 [Dickinson College v. Church.] duced ; all the entries for the lumber, &c., except the last one, were against Henry Myers alone, without specifying any build- ing in which the same was to be used ; the last entry, to wit, that of the 13th of November 1837, was to " Henry Myers, for the new Academy at Carlisle." The plaintiffs offered to prove that the account was made out at length from the books, including every item and its price; that it was examined by Mr. Myers, assented to, and promised to be paid. Accompanied with the charge in the book of original entries of plaintiff of item, dated 20th of February 1837, and to read that item from the book, and the same offer to embrace items got un- der similar circumstances after 6th of April 1837. Objected to. That Henry Myers is a competent witness, and his declaration can only affect himself; no admission or agreement he could make after the account ceased could charge Dickinson College. This objection to apply to all items similarly situated in the ac- count. Objection overruled. Exception taken by defendants. After this evidence was given, it was admitted that Henry My- ers by his contract was to get $5800 for building and furnishing all the materials for the grammar school, and that the same had been fully paid to him by the trustees. The defendants then called John Turner as a witness. 1. Defendants offered to prove by the witness that he worked as a journeyman with Henry Myers, at the building of the de- fendants. That the whole amount of shingles used upon it does not exceed 10,000; the whole amount of boards and plank does not exceed 25,000 feet; and that the whole amount of scant- ling does not exceed 20,000 ; whereas the plaintiff's claim filed con- tains 24,000 shingles, 60,000 feet of boards, and 40,000 feet of scantling. 2. That Henry Myers was a large contractor, and had various contracts on hand at the time ; that the lumber claimed was not delivered at the building of the defendants, nor used in it, but was used in other places ; that it was impossible to use the amount of lumber claimed in this case in the building erected for the defend- ants by Mr Myers. Objected to that it was irrelevant, and calculated to mislead the jury. Offer rejected by the court. Exception taken by de- fendants. Defendants offered Henry Myers, the defendant in the scire fa- cias, as a witness. Objected to by plaintiff. 1. That he is the contractor referred to in the lien filed. 2. That he is a defendant in the case trying. 3. That he has a direct interest in the result of the trial. Witness rejected by the court. Exception taken by the de- fendants. 464 SUPREME COURT [Harrisburg [Dickinson College v. Church.] The defendants asked the instruction of the court to the jury upon several points, only one of which is it material to state, which was this : " The payment of $400 having been credited on the account of materials furnished for said building, the price of which was a lien thereon, said credit can not be now withdrawn and applied to any other purpose." To which the court answered by referring it as matter of fact to the jury to determine whether it was to be so applied or not. The several bills of exception, and answer of the court to de- fendants' point, were the subject of the errors assigned. Biddle and Watts, for plaintiffs in error. Reed, for defendant in error. The opinion of the Court was delivered by ROGERS, J. The 27th of April 1837, the trustees of Dickinson college entered into a contract for the erection of a grammar school, in the borough of Carlisle. The contractor agreed to erect the building and furnish the materials, for the sum of $5800, all of which has been paid by the trustees. It appears that Myers was a contractor, not only for that building, but for others in the neighbourhood ; that he procured his materials in the first place, from Church & Crist, and after the dissolution of their partnership, from Robert R. Church, the plaintiff. The price of the materials not being paid, the plaintiff files a claim against the building, for the sum of $1077.34, which he alleges to be due. The account begins the 22d of January 1837, and ends the 13th of November 1837; and is opened in the books of Church, as a charge against the contractor alone, without any allusion to the college, except in the last item. The whole amount of the ac- count, is $1477.34, on which Myers paid $400, which is credited generally, the 26th of June 1837. The suit is brought against the college and the contractor, for the purpose of recovering the money due, as for materials furnished by the plaintiff on the credit of the building. It is not denied that the lumber was pur- chased by the contractor, but it is denied that it was fur- nished on the credit of the building. The defendants allege that they were sold on the personal responsibility of the contractor, who at the time, as was well known to the plaintiff, was engaged in the erection of other buildings. That the college is not charge- able with part of the account, was admitted at the trial, and indeed, it would require more than ordinary hardihood to deny it, as it was in proof that the account commenced the 27th of January, and that the contract for the erection of the grammar school, was not made until the 26th of April following. All this, however, the plaintiff attempted to explain by parol testimony: May 1841.] OF PENNSYLVANIA. 465 [Dickinson College v. Church.] and the admission and rejection of the evidence which was offered for this purpose, form the subject of the several bills of exception. The first and second bills may be considered together. Was Henry Myers, the contractor and one of the defendants in the suit, a competent witness ? Second : Can his declarations, and to what extent, be given in evidence to affect the college 1 This is a proceeding in rem. The contractor is joined in the suit, for the benefit of the owner of the building. It is required that he should be a party, that he may furnish proof, if necessary, to prevent an overcharge in the amount of materials, and to prove any payment which he may have made on the contract. But, although he is a party to the suit for these purposes, yet he can not be reached personally in this action, nor is he directly liable, as has been already ruled, for the costs. The objection to his competency cannot be rested on these grounds. But has he not, notwithstanding, an interest in the event of the suit ? If the plaintiff recovers in this action, the contractor will be answerable over, at the suit of the college. In that action the judgment here will be evidence, not only for the amount of the debt reco- vered, but also for the costs incurred in this suit ; and in some flagrant cases, perhaps for damages for breach of his contract. Whereas, in a suit by the material man, he would be liable for the debt with the costs alone, in that suit. He has then an inte- rest to prevent the recovery, as he cannot be said to have an equality of interest. This case, however, is not an exception to the rule, which enables a party to restore the competency of a witness by a release. The next question is, whether his declara- tions, and to what extent, can be given in evidence in this proceed- ing. It would seem to follow from the above remarks, that the admissions of the contractor may for some purposes be given in evidence ; but the utmost latitude which ought to be allowed, is his admissions as to the materials which have been received, or the amount which may remain due ; and even these ought to be admitted with great caution, and subjected to the nicest scrutiny. In this case declarations were allowed, whose only tendency was to prove that the lumber was furnished on the credit of the build- ing ; and these declarations, it must be remarked, were made, not at the time of the sale, but afterwards. It was not, therefore, part of the res gestce, and admissible on that score. In this we think the court have gone too far. Such testimony would put the owner completely in the power of the contractor and lumber- man; and as in general it is only when the contractor is insolvent that resort is had to the building, it is a most dangerous species of proof. The account, which, be it observed, commences about three months before the contract for the building, is charged, except the last item, against the contractor. He, so far as appears on the account, is the only debtor ; and the only manner in which any i. 59 466 SUPREME COURT [Harrisburg [Dickinson College v. Church.] lien can be made to attach, is by the introduction of parol proof, as to the intention of the contracting parties. Under these cir- cumstances, the owner of the building offers the evidence con- tained in his second bill, which is excluded, I am led to believe, because it was irrelevant, calculated to mislead the jury, and based as was supposed, on a perversion of the fact in this, that although the account commenced on the 27th of January, yet the plaintiff only claims that part of it, which begins on the 27th of April. I am not very forcibly struck with the justice of this complaint, under the suspicious aspect in which this case is pre- sented. It does not seem to me, that it is dealing unfairly with the plaintiff, to take the account as it appears on his own book. But making every allowance for the items charged in the inter- mediate time, there is still an excess of materials to no trifling amount, charged over the quantity, which the defendants offered to show, could by any possibility be required in the erection of such an edifice. The evidence tended strongly to show gross negligence, if not fraud, in what we esteem to have been the duty of the vendor. It is a great mistake, which cannot be too soon corrected, if any suppose that when a person undertakes to furnish lumber to a contractor on the credit of a building, that he is relieved from inquiring into the nature of the building he trusts, whether it is brick or frame, whether it is a one or three story house, or whether it is large or small : that in short, he can furnish materials enough to complete a three story house of the largest dimensions, when the materials are intended for a house of the most inferior description. The very fact that he credits the building, and does not depend altogether on the per- sonal responsibility of the contractor, should, it would seem, im- mediately suggest the propriety of making the necessary inquiries, as to the size, materials, and nature of the intended erection. We do not say that a trifling excess over what the most rigid economy would require, will vitiate the account ; that would be an unne- cessary, or perhaps, unjust restriction; but when it is obvious that it is the result either of negligence or fraud, sound policy and a just regard to the interests of owners, require that the con- sequences should be visited on his own head. If any other rule is adopted, there will be no security for owners, as the materials charged, may, and often will, exceed the value of the building itself. It is not indispensable, as was ruled in Church v. Davis, (9 Watts 304,) that the account should be opened against the building. The Act does not prescribe the kind of evidence ne- cessary to prove that the debt was thus contracted, but leaves that to depend upon the ordinary rules of evidence. Yet notwithstand- ing, it would be well worth the serious attention of the vendors to pay some attention to this, as when this is omitted, the account comes before the court in rather a suspicious and questionable shape. It enables material men, when a contractor is engaged May 1841.] OF PENNSYLVANIA. 467 [Dickinson College v. Church.] in different works at the same time, to fasten a lien on all, or any one, or more of them, at his pleasure. The owner should have at least, all the advantage that may arise from an unequivocal intention to hold the building answerable to the amount of the materials which may be furnished. It very often happens, that when the materials are purchased, the personal responsibility of the contractor is deemed amply sufficient ; but subsequent events make it expedient to resort to another security. This affords a temptation, which is irresistible, to create a lien by the aid of parol testimony, when such a thing never entered into the imagi- nation of either vendor or vendee. When this is the case where there is more than one building, it will be usually entered against that building which happens to afford the best security for the debt. We see nothing wrong in the answer of the court to the plain- tiff's second point ; for although we are of the opinion that the testimony should be scanned with the greatest severity, yet we perceive no error in leaving the determination of the fact to the jury. The whole case shows the difficulties that result from the manner of keeping the account. If the first account had been closed as it ought to have been, and the second had been opened in proper form against the contractor and the building, describing it, no such difficulty could have arisen. If any loss accrues to the plaintiff, he has his own negligence to blame for it. Judgment reversed, and a venire de novo awarded. Thomson against Hopper. When there are mutual accounts between parties, the items of credit and charge in such accounts, within six years before the commencement of the ac- tion, are deemed equivalent to a subsequent promise reviving the debt. ERROR to the Common Pleas of county. This was an action on a book account, by Martin Hopper against John Thomson, commenced on the 28th of April 1838, and came into the court below by appeal by the defendant from the judgment of a justice of the peace. The defendant pleaded non assumpsit, non assumpsit infra sex annos, and payment, &c. The facts are sufficiently stated in the charge of the court : BURNSIDE, President. Here the action was brought in April 1838. The first item in the plaintiff's account is in 1830, and the account is continued to the year 1837. The defendant's ac- 468 SUPREME COURT [Harrisburg [Thomson v. Hopper.] count contains about as many items as the plaintiff's. It com- mences in 1827, and is continued down to the middle of 1835. The defendant insists that all the items, on both sides, that are dated more than six years before the 28th of April 1838, are to be rejected, and so asks the court to instruct the jury ; which in- struction the court refuse to give, but instruct the jury that where there have been mutual, current, and unsettled dealings and accounts between the parties, those items, as in this case, after six years, will draw after them the items that are prior. The defendant excepted to the charge. Benedict, for plaintiff in error, cited 12 Peters 308, 336. Hale, for defendant in error, cited 2 Mass. 220, 221 ; 4 Bac. Mr. 478, E. pi 3 ; 1 Day 245 ; 6 T. R. 189 ; 2 Sound. 127 n. ; Blanch, on Lim., 2 Law Lib. 88, 89. The court affirmed the judgment on the principles which ruled the case of Van Swearingen v. Harris (356 ante). KENNEDY, J. dissented from the opinion of the court in this case, and in the case of Van Swearingen v. Harris. KENNEDY, J. dissenting The court below were no doubt right in admitting the account, as kept by the plaintiff in his book against the defendant, to be read in evidence. The plaintiff, after being sworn, testified that the book was his book of original entries ; and that each of the entries, in the account against the defendant, was made at the time of its date. The defendant, however, objected to the book, or the account being given in evi- dence from it to the jury, because it was kept in the form of a ledger. Books of original entries are frequently kept after the manner of the plaintiff's book, by such as farmers and mechanics, who may be unacquainted with the more regular and correct form of keeping books cf account ; or having but little occasion for such books, may think it more convenient to make one only answer their purpose. Such books, when authenticated by the oath of the party who made the entries therein, as was done in this case, and no other objection is made to appear against them, have been uniformly received in evidence. The plaintiff in error, who was the defendant in the court below, has therefore failed to sustain his first error. The second error, however, appears to me to rest upon ground that cannot be removed or got over. Neither of the parties in this action appears to be a merchant, nor the factor or servant of such. But the point raised by the second error assigned, may be divided into two questions. First, does the Act of the 27th of March 1713, limiting the bringing of personal actions, extend to an action upon account and upon the case, which has no concern May 1841.] OF PENNSYLVANIA. 469 [Thomson v. Hopper.] \vith the trade of merchandise between merchant and merchant, their factors or servants? and, secondly, if it does, will the cir- cumstance of there being mutual accounts between the parties, in which some of the latter items, on both sides, come within six years of the time of commencing the action, be sufficient to take the whole of the plaintiff's claim out of the Act? The words of the Act, in this respect, are, "all actions of account, and upon the case, (other than such accounts as concern the trade of mer- chandise between merchant and merchant, their factors or ser- vants,) shall be sued for within six years next after the cause of action or suit, and not after." Our Act of Limitations, in regard to this particular, is an exact transcript of the statute of 21 Jac. c. 16, sec. 3. Now I think it is perfectly clear, that the case be- fore the court, neither of the parties being merchants, does not fall within the exception, but comes directly within the express terms of the Act. It is possible that in the time of James I., when the English statute was passed, the term "merchant" was only applied to one who traded beyond sea. For the Lord Keeper, in Sherman v. Withers, (21 Car. 2, 1 Chan. Ca. 152), held that the exception in the statute did not apply to an inland merchant and his factor ; but only to merchants trading beyond sea. And so thought Atkyns, J., in Farrington v. Lee, (1 Mod. 270). Notwithstanding, however, this may possibly have been the meaning affixed to the term "merchant" at the time of the passage of the statute of James, yet afterwards, and before the passage of our Act, it would seem to have had a more compre- hensive signification given to it ; for in The Mayor, fyc. v. Wilks, (2 Salk. 445, 3 Anne) Lord Holt says, "A merchant includes all sorts of traders, as well and as properly as merchant adventurers. A merchant tailor is a common term." But still it would seem as if the precise meaning of the term, as used in the exception of the statute, has never been fully settled in England. And this, I apprehend, may be in part owing to merchant's accounts having been for many years carried to courts of equity ; but chiefly from a prejudice that existed on the part of courts against the fair ope- ration of the statute in case of debts founded upon simple con- tract, which induced them to construe the most trifling things and circumstances into promises and acknowledgments, whereby they considered the debts revived, and thus taken out of the statute. Indeed, it would appear as if nothing short of some un- due prejudice, in this respect, could have induced courts to de- part, as they did, from the plain letter of the Act, and doubtless the plain meaning, too, even so far as to allow an express pro- mise to take a claim for a debt out of it. Chief Justice Bridg- man looked upon this statute in its true light when, in 1604, only 41 years after its passage, he observed, in the case of Benyon v. Evelyn, (0. Bridgman's Rep. 363), "Expedit reipublicce ut sit finis litium, it is better to suffer a particular mischief than a general i. 2p 470 SUPREME COURT [Harrisburg [Thomson v. Hopper.] inconvenience ; and such a one must happen, if way be given to equitable constructions against the letter of the Act, which is, that they shall be sued within six years after the cause of action. But it rests not there, but adds, ' and not after ;' which negative words are the strongest that can be in law." Had judges subse- quently entertained the same vie-, ' of the statute that Chief Jus- tice Bridgman did, which was unquestionably the correct one, the construction and operation of it would have been such as the legislature intended, and certainly very different from that which has prevailed. But courts seem to have supposed, for they have occasionally said so, that the legislature only meant to protect persons who had paid their debts, where, from length of time, they had lost or destroyed the proof of payment. But " from the title of the Act to the last section," says Chief Justice Best, in Jf Court v. Cross, (3 Ring. 329), " every word of it shows that it was not passed on this narrow ground. It is, as I have often heard it called by great judges, an Act of peace. Long-dormant claims have often more cruelty than justice in them. Christianity forbids us to attempt enforcing the payment of a debt which time and misfortune have rendered the debtor unable to discharge. The legislature thought that if a demand was not attempted to be enforced for six years, some good excuse for the non-payment might be presumed, and therefore took away the legal power of recovering it. I think if I were now sitting in the Exchequer Chamber, I should say that an acknowledgment of a debt, how- ever distinct and unqualified, would not take from the party who makes it the protection of the statute of limitations." This same learned judge had, in a previous case, Ham v. Reynall, (2 Bing. 306) said, " The statute, after the limitation of three years from the passing of the Act, and six years from the cause of action, adds ' and not after ;' looking at these words, ' and not after,' one might be led to conclude, that in no instance could a remedy for a debt be had after six years" ; and certainly no stronger words could have been used. And, indeed, in no case embraced within the same clause of the statute, except the case of assumpsit, or debt founded on a simple contract, was it ever held, or even sup- posed by any one, that redress could be had by action, after six years had run from the time the cause of action accrued. Albeit, several other causes of action are mentioned in the same section, and directed to be brought within the same time, and not after; for instance, "actions upon the case (other than for slander) for trespass, detinue and replevin for goods or cattle," &c., it has cer- tainly never been ruled that any of these actions could be main- tained, after a lapse of six years from the time the cause of action accrued, upon any ground whatever. But why an acknowledgment, or some device of the sort, should not have been resorted to, or found out, to evade the operation of the statute in these latter cases, as well as in the cases of assumpsit, May 1841.] OF PENNSYLVANIA. 471 [Thomson v. Hopper.] or debt founded upon simple contract, it is difficult to imagine, unless it be that it was thought that it would be too barefaced an evasion of the statute ; for, as regards the equity of either case, the man who takes from another his property wrongfully, or ob- tains it by fraudulent means, is bound as much, in good con- science, to make full compensation to the owner for it, as if he had obtained it by his consent, upon a promise to pay him a cer- tain price for it. But in the former of these cases, the courts have uniformly held the statute to be a bar to the plaintiff's re- covering, unless the action be commenced within six years after the cause of action first accrued ; and that an acknowledgment by the defendant that he is responsible to the plaintiff, or a promise that he will pay him for the property taken, will not take the case out of the statute of limitations. Short v. McCarthy, (3 Barn, fy Aid. 626) ; Hurst v. Parker, (1 Barn. $ Aid. 92). But it would seem as if the courts and judges at first were somewhat sensible of the imperative language of the statute, for they did not dare to hold that an acknowledgment of the debt by the defendant, without an express promise to pay it, was sufficient to take the case out of the statute. In Bass v. Smith, (12 Vin. Abr. 229), and Dickson v. Thompson, (2 Show. 126), it was ruled by Chief Justice Scroggs, there must be an express promise to take the case out of the statute ; and that a mere confession or acknowledgment by the defendant that he owed so much to the plaintiff, would not do it. See also Lacon \. Briggs, (3 Atk. 107) ; Bland v. Haselrig, (2 Ventr. 151, 152). At length, however, in the celebrated case of Heylin v. Hastings, (10 Will. 3. B. R. Com. Rep. 54), which was assumpsit for goods sold and delivered, where the defendant pleaded non assumpsit infra sex an nos ; and the evidence was, that the gpods were sold and delivered to the defendant in the year 1688; that within three years of the time of trial, but more than six years after the cause of action had accrued, the defendant promised, if the plain- tiff would prove his debt, he would pay it ; it was held by the court, after consultation with all the other judges of England, in which ten of them concurred, that the promise took the case out of the statute. And they likewise agreed, that if a man acknow- ledge a debt after six years elapsed, it was evidence of an assump- sit upon non assumpsit infra sex annos pleaded, for the jury to find a verdict for the plaintiff, but not a matter upon whicn the court, if it were found specially, could give a judgment for the plaintiff. The latter opinion of the judges laid the foundation for what be- came the settled rule on the subject, by the decision of Baron Price, at Lent Assizes, in 1717, nearly one hundred years after the passage of the Act, that an acknowledgment of the debt was sufficient to take the case out of the statute of limitations. 12 Vin. Abr. 192. But a seeming disregard of the statute continued still to increase, so that whatever could be tortured into the slightest semblance of an acknowledgment, was held sufficient to take the 472 SUPREME COURT (liarrisburg [Thomson v. Hopper.] case out of the statute of limitations ; as, for instance, saying, " I am ready to account, but nothing is due to you," Yea v. Fouraker, (2 Burr. 1099) ; or " what an extravagant bill you have delivered !" Lawrence v. Worrall, (Peake's JV. P. C. 93). And thus the aber- rancy on the part of the courts, from the course pointed out by the statute, increased until at length the defendant's saying, " he would not pay, there were none paid, and he did not mean to pay unless obliged," Dowthwaite v. Tibbut, (5 Maule. 4* Selw. 75) ; or, upon being arrested for the debt, " that it was true that the plaintiff had paid money for him, twelve or thirteen years ago, but that he had since become a bankrupt, by which he was discharged, as well as by law from the length of time," Clark v. Bradshaw, (3 Esp. Rep. 157) ; or acknowledging that he accepted the bill upon which the suit was brought, but saying, " that it was out of date, and also that it was not in his power to pay it," Leaper v. Tatton, (16 East 420) was held sufficient to take the case out of the operation of the statute. Now, although it is perfectly clear from all that the defendants said in these last cases, that neither the courts nor jury could infer a promise to pay, because the defendants, in express terms, declared their determination not to pay, yet, because they acknowledged the debts to have existed, without their having been actually paid, the statute of limitation was held to be no protection. The courts in England having thus, in effect, nearly repealed, or set the statute aside, it is not at all surprising that it should have been decided, that where there are mutual items of account, between the plaintiff and defendant, every new item and credit in an account given by one to the other, is an admission of there being some unsettled account between them, the amount of which is afterwards to be ascertained, and therefore proper to be re- ferred to a jury, who may consider it such an acknowledgment as will take it out of the statute. This principle, I think, was established for the first time in Catling v. Skoulding, (6 Term Rep. 189) and made to rule that case. But I am not aware that it was ever advanced in any previous case, unless it were in a case by Lord Hardwicke, which will be noticed in the sequel, or that it has been followed in any subsequent one in England. The case put by Justice Dennison, in Cotes v. Harris (Bull. JV. P. 149, 150), is the case of mutual accounts between merchants, which, as he conceived, was perhaps the only case that came within the clause of the statute which excepts merchants' accounts from its operation. So the case of Cranch v. Kirkman, decided by Lord Kenyon (Peake's JV. P. C. 121), was one of mutual accounts be- tween merchants or traders at least, which he thought came within the exception ; so that the principle of Catling v. ISkoulding is not laid down or recognised in either of these cases. And, indeed, if any inference is to be drawn from them on the subject, it is rather, that mutual accounts between others than merchants or traders, would come within the operation of the statute, and May 1841.] OF PENNSYLVANIA. 473 [Thomson v. Hopper.] be thereby barred, so far as the items thereof were of more than six years' standing anterior to the bringing of the suit. Thus, the courts of England, by permitting evidence to be given to prove promises and acknowledgments in order to defeat the statute and by distorting the conduct of the parties in the case of mutual accounts, into an acknowledgment for the like purpose, compelled Chief Justice Gibbs, in Hellings v. Shaw, (7 Taunt. Oil), to say, " that if the courts could retrace their steps, and see all the consequences that have arisen, they would have seen it was better to adhere to the precise words of the statute, than to attempt to relieve in particular cases." And indeed, finally, the shameful evasion of the statute, by the courts in England, induced the legislature to enact, by the statute of 9 Geo. 4, c. 14, " that in actions of debt, or upon the case grounded upon any simple con- tract, no acknowledgment or promise, by words only, shall be deemed sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of the said enact- ments (meaning 21 Jac. 1. c. 16, and the Irish Act of 10 Car. 1. Sess. 2. c. 6, both previously mentioned), or either of them, or to deprive any party of the benefit thereof, unless such acknowledg- ment or promise shall be made or contained by or in some writing, to be signed by the party chargeable thereby." Now although it be true, that we have, in the construction of our Act of Limitations, followed the English courts in the con- struction of their statute, so far as to hold an express promise made by the defendant to pay, or an acknowledgment of the debt made by him in a manner showing that he is willing to pay, from which a promise to that effect may be fairly inferred by the jury, yet we have never gone so far as to hold that an acknowledgment, by the defendant, of the debt made in a manner or under circum- stances indicating that he is not bound or willing to pay it, was sufficient to take the case out of the statute; on the contrary, we have refused to follow the English decisions in this respect, and have held, that nothing short of a plain, unequivocal promise to pay, or an acknowledgment of the debt clearly proven, from which a promise to pay it may be fairly inferred, necessarily, in short, implied, will be sufficient to take it out of the operation of our Act of Limitations. And in no instance, upon principle of analogy, shall or ought a plaintiff to be permitted to recover mo- ney upon a doubtful promise or title of any kind. It is incumbent upon him to establish his right clearly, for if a reasonable doubt remains in regard to it, he ought not to recover. This I take to be the principle which has governed the decisions of this court, and more especially the late ones, in regard to the promise or acknow- ledgment that shall be deemed sufficient to take the case out of our Act of Limitations. It must be distinctly made and clearly proven. We have never decided that mutual accounts between the parties, not being merchants within the exception of the Act, some of the i. 60 2 p * 474 SUPREME COURT [Harrisburg [Thomson v. Hopper.] items of which were within the six years, were sufficient to take the whole amount out of the operation of the Act. Some of the sister states may have adopted this principle as it is laid down in Catling v. Skoulding. The Supreme Judicial Court of Massa- chusetts seem to have done so in the case of Cogswell v. Dolliver, (2 Mass. Rep. 217), without any examination, as would appear from the report of the case, of the ground or reasonableness of it. See also Buntin v. Logan, (1 Blackf. Rep. 373), and Bennett v. Davis, (Adams, or 1 Neiu Hamp. Rep. 19.) Mr Justice Story, how- ever, in Spring v. Gray, (5 Mason's Rep. 523, 524), where a ques- tion on the Statute of Limitations of the state of Maine, which is a transcript of 21 Jac. 1. c. 16, was presented for his considera- tion, condemns in pretty strong terms the ingenious subtlety of judges and courts, which had been exercised for the purpose of evading the fair operation of the statute, according to its letter and tenor. He regards it, as it most certainly is, a statute of repose, and as most highly beneficial to the great interests of the community ; and as such entitled to receive, if not a liberal, at least a reasonable construction in furtherance of its manifest ob- ject. " Yet," says he, " I well remember the time, when courts of law exercised, what I cannot but deem a most unseemly anx- iety to suppress the defence, (meaning the defence set up under the statute) ; and when, to the reproach of the law, almost every effort of ingenuity was exhausted to catch up loose and inadvert- ent phrases from the careless lips of the supposed debtor, to con- strue them into admissions of the debt. It appears to me that it is the duty of the court to adhere to the very terms of the statute, and not, upon imaginary equitable considerations, to escape from the positive declarations of the text. No exceptions ought to be made, unless they are found therein ; and if there are any incon- veniences or hardships growing out of such a construction, it is for the legislature, which is fully competent for that purpose, and not for the court, to apply the proper remedy." These imaginary equitable considerations here spoken of by Mr Justice Story, seem to lie at the foundation of the rule laid down by Lord Kenyon, and adopted by the other members of the court, in Catling v. Skoulding ; for, after stating the rule to have been settled as long as he had any memory of the practice of the court, he adds as a reason why it should not be then overturned, that " daily experience teaches us, that if this rule be now over- turned, it will lead to infinite injustice." The rule as stated is, " that every new item and credit in an account given by one party to the other is an admission of there being some unsettled account between them, the amount of which is afterwards to be ascer- tained ; and any act which the jury may consider an acknow- ledgment of its being an open account, is sufficient to take the case out of the statute." Now it does appear to me, that not only the " infinite injustice" May 1841.] OF PENNSYLVANIA. 475 [Thomson v. Hopper.] which Lord Kenyon thinks would take place, if the rule were overturned, but likewise the fact of the rule's having been settled in practice, as stated by him, is altogether imaginary. For surely, if it had been settled in practice, as he alleges, we would have frequent mention made of it in the books. But I am not aware of any book or case then in print in which its existence is men- tioned. It is true, however, that afterwards, in the report of Forster v. Hodgson, (19 Vez. 185), LordEldon says, that by a note of a very experienced practitioner of that court, Lord Hardwicke is represented to have said on the 9th of July 1837, " that the excep- tion as to merchants' accounts is not to be confined to open accounts merely ; for between common persons, as long as the account is con- tinued, the statute does not bar; the exception must, therefore, mean something more." And the note adds, that Lord Hard- wicke seemed to think that between merchants an open account would do, though there had been no dealing within six years. But that Lord Hardwicke ever expressed or entertained such an opinion may well be doubted ; for in Welford v. Liddel, (2 Vez. 400), he gives a different one; holding, that merchants' accounts will be barred if there is no item within six years ; and the same doctrine, says Lord Eldon, is to be found in several other cases. Forster v. Hodgson, (19 Vez. 186). In Barber \. Barber, (18 Vez. 286), Sir Wm. Grant determined that the Statute of Limitations was a bar to merchants' accounts : all the accounts having ceased six years. So in Bridges v. Mitch- ell, (Gilb. Eq. Rep. 224), a decision to the same effect was previ- ously made. But if mutual and open accounts, between common persons, be held not to be barred by the statute, as long as some of the items are charged within six years, though all the rest, forming the chief part in amount of the items in the accounts, be above six years, it is obvious that this is placing them on the same footing with merchants' accounts, which cannot be done, without a plain and palpable violation of both the letter and spirit of the Act ; for the legislature have thereby, in express terms, excepted the one from the operation of the Act, and not the other. It would then seem that there is not only a want of evidence going to show that the rule adopted by the court in Catling v. Skoulding was founded upon the practice of the courts, but that all their previous decisions, as also the decisions made since that, so far as they are to be found having any bearing on the point, tend strongly to prove the con- trary. In the next place, how is it, I would ask, that every new item and credit in an account given by one party to the other, can be made out an admission of there being some unsettled account between them, the amount of which is afterwards to be ascer- tained ? Certainly in contemplation of law, or by force thereof, there is no such admission made, nor is any such necessarily made in fact, otherwise it would have been unnecessary to have pro- vided in our Act of defalcation, passed only eight years before our 476 SUPREME COURT [Hamsburg [Thomson v. Hopper.] Act of Limitations, for the case of two or more dealing together, who have become indebted to each other upon accounts or the like, that it shall be lawful for the one, under the plea of payment, if sued by the other, to give his account against the plaintiff' in evidence to the jury, that they may set it off against the plaintiff's, and having ascertained the amount of each account, strike the balance, if there be any, between the parties. Now, it is mani- fest that this provision could not have been necessary, if the mere existence of mutual and open accounts between the parties natu- rally implied, or in fact involved such an admission as that men- tioned in the rule, which, if made at all, must be regarded as equivalent to an agreement between them, that there should be a future settlement of their mutual accounts, whereby the amount should be ascertained, and the balance struck. For such an ad- mission or agreement would have given to the defendant the right of set-off as effectually as the Act does. The truth is, that such accounts, though mutual, are perfectly distinct and independent, and never have been regarded as having any connexion, unless there be an express agreement of the parties to that effect, and. if there be, it must be proved before it can have any such effect, and can never be presumed for such purpose. Neither can the creditor's subsequently buying any thing from his debtor, on cre- dit, be considered as an acknowledgment on the part of the latter of his indebtedness to the former, so as to take the first debt out of the statute afterwards, when six years shall have run ; nor into an acknowledgment according to the language of the rule, of there being an open account, which remains to be settled between them, and which, as the court say, " is sufficient to take the case out of the statute." All, therefore, that is contained in the rule, is cer- tainly imaginary; for mutual credits obtained, in the manner just stated, were ever considered as creating substantive and inde- pendent debts, having no reference to or connexion with each other ; and consequently could not, at common law, be set-off against each other without proof being made of an express agree- ment between the parties that it should be so. Besides, having shown already, that every item above six years' standing, of even an open and mutual account, is within the express terms of the statute, unless in such accounts as concern the trade of merchan- dise, between merchant and merchant, their factors or servants, the rule in this respect, if an open and mutual account is to be consi- dered by it as sufficient to take the case out of the statute, would appear to be in direct opposition to the plain meaning of the sta- tute, by rendering the exception contained therein, which is very explicit and unambiguous, even worse than useless, for it com- pletely abrogates and sets it aside. And, indeed, I am not aware, that the rule, as laid down and adopted by the court in Catling v. Skoulding, has ever received the sanction of any of the courts in England since the determination of that case. But it is pretty clear May 1841.] OF PENNSYLVANIA. 477 [Thomson v. Hopper.] from what Best, Chief Justice of the King's Bench, says in A 'Court v. Cross, (3 Bing. 329) that he, without hesitation, when sitting in the Exchequer Chamber, as an appellate court, would have decided against any such rule or principle. For he declares there, " I think, if I were now sitting in the Exchequer Chamber, I should say that an acknowledgment of a debt, however distinct and unquali- fied, would not take from the party who makes it, the protection of the statute of limitations." This it is evident would be cutting the rule in Catling v. Skoulding up by the roots. But the truth is, that mutual and open accounts do not even furnish pretence for the existence of such an acknowledgment. Seeing, then, that the rule laid down in Catling v. Skoulding has never been adopted here or received the sanction of this court, and that it would be a direct evasion of our Act of Limitations to adopt it ; and at the same time, if adopted, would produce great litigation and injus- tice, by promoting delay in the settlement and adjustment of open and mutual accounts, until it had, from lapse of time, become im- practicable to determine correctly, in cases of dispute between the parties, how the same ought to be settled according to the truth of the case, it ought therefore to be rejected by us. But the court below having adopted this rule in their charge to the jury, and the latter having found a verdict in conformity to it, the judg- ment, in my humble ooinion, ought to be reversed. Judgment affirmed. Hadley against Snevily. In an action on a contract for the sale of a chattel, proof by the defendant, that it was received hy the vendee on Sunday, from a third person, does not raise such a presumption that .the contract was made on Sunday, as will defeat the plaintiff's action. ERROR to the Common Pleas of Dauphin county. John Hadley against John Snevily. This was an action of assumpsit brought to recover the price of a horse. The evidence was, that Hadley left the horse at the Golden Lamb tavern in Harrisburg, and that he was for sale ; that the defendant came there on Sunday, said that he had bought the horse, and was to pay $130, or $135 for him, and then took the horse away; and that Hadley said afterwards that he had sold the horse to Snevily. 478 SUPREME COURT [Harrisburg [Hadley v. Snevily.] The defence set up was, that the contract, for the sale and de- livery of the horse was made on Sunday. The court thus charged the jury: This court instruct the jury if they believe that the contract was made on Sunday, it is void, and the plaintiff cannot recover. In contracts for the sale of personal property or chattels, the bar- gain is not complete till the article is delivered, or something paid on the contract, or earnest given, or a day certain fixed for the payment of the price of the thing sold. The counsel for the plaintiff contends that a contract made on Sunday is not void at common law. I admit such are the Eng- lish authorities, but they do not control us in this case. The Act of the 23d of April 1794, prohibits any worldly employment or business whatsoever, on the Lord's day. A solemn decision has been given by the Supreme Court of our state, which guides and controls this court, and must the jury and the rights of all parties in the commonwealth. They have declared a contract made on Sunday void, under the Act of Assembly to which I referred ; and have held that even a note given on Sunday, although dated on Saturday, is void, and cannot be collected. (Here the court read a part of the opinion of Judge Kennedy in the case of Kepner v. Keefer, 6 Watts 231.) The jury will apply the facts to the principles of law above laid down by this court. The evidence is, that the horse was delivered on Sunday. There is no evidence before the jury that the contract was made before that day. That seems to have been the final consummation of the whole bargain. This took place on Sunday. The jury have a right, and it would be fair to infer from the facts before them, that the bargain was made on the Lord's day. In the absence of any proof that there had been any previous conversation about the sale of the horse before that day, the jury may, if they think such was the fact, reasonably believe the whole contract was made on Sunday. It is said Hadley had gone to Philadelphia ; the delivery took place in the afternoon of Sunday. Did Hadley go in the morning, or when did he leave town? If the bargain had been made on a week day, would it not have been in the power of the plaintiff to prove it? Briggs and Rawn, for plaintiff in error, argued that there was no presumption, much less proof, in the cause that there had been a contract made on Sunday. If the delivery had been by the vendor himself, then the presumption would have been reasonable that the contract was made at the time it was executed by de- livery of the horse ; but the burthen of proof to make out the defence, must rest upon the defendant; and all presumptions must be made, in favour of the validity of the contract, ut res magis May 1841.] OF PENNSYLVANIA. 479 [Hadley v. Snevily.] valeat quam pereat. 12 Serg. fy Rawle 306. 2 Stark. Ev. 685, 873. Chit, on Con. 19, 111. Boas, for defendant in error, contended that it was a matter of fact when the contract was made, and the opinion of the court about it was not the subject of error; and the court were clearly right in saying that if the contract was made on Sunday, it was void. Com. on Con. 210; Chit, on Con. 110; 2 Penn. Blac. 216; 1 P. A. Browne 471 ; 5 Barn. <$> Cress. 406 ; 4 Bing. 84 ; 6 Watts 231. The opinion of the Court was delivered by HUSTON, J. The defence in this case was, that the contract, which was the foundation of the plaintiff's action, was made on Sunday; and we think the court erred in putting the burthen of proof when it was made, upon the plaintiff: it was the allegation of the defendant, and he must sustain it by proof. If the plain- tiff had been present at the delivery of the horse on Sunday, the presumption might be as stated ; but can it be that the defend- ant, by going on Sunday and taking away the plaintiff's horse, left for sale, and because it was Sunday, got the horse for nothing? There are cases where delivery is essential to the completion of the contract ; but there are others where the sale is good without delivery. Perhaps no actual delivery was contemplated by these parties : the bargain may have been made, and a verbal order to the vendee to get the horse, upon which he would have been delivered upon Monday or any other day. If it had appeared that the plaintiff delivered the horse on Sunday, our respect for the rule which prohibits the making of contracts on that day, would induce us to say that the contract was then made ; but he did not deliver him or know when he was delivered. The only act done on Sunday, was by him who now seeks to take advantage of it. Zeal for religious observance of the Sabbath is commendable, but it may exhibit itself in a very questionable shape. It can not avail a defendant who has the possession of property without paying for it, unless he proves that the plaintiff has violated some law, human or divine. The error consists in forgetting that he who sets up a defence must prove it, and can not call upon the other party to negative what is not proved. The defendant would have got the horse if the sale had been made on Saturday; his taking him away on Sun- day, was no proof that he bought him on that day. Judgment reversed, and venire de novo awarded. 480 SUPREME COURT [Harrisburg Snevily against Egle. In an action of novenant by a vendor against a vendee to compel the payment vf iurchase-moaey, upon the pleas of non estfactum and covenants performed, if tne defendant rest his defence upon a defective or encumbered title of the plain- tiff, iiw Must make that defence on the trial of the cause, otherwise he cannot avail hims Jv of it upon a writ of error. to the Common Pleas of Dauphin county. This was an action of covenant by the executors of William Egle against John Snevily. The facts of the case and errors as- signed are rtilly stated in the opinion of the court. The cause was arguea Dy Rawn, for plaintiff in error. M'Clure, lor defendant in error. The opinion of the Court was delivered by HUSTON, J. William Egle, in his lifetime, entered into articles of agreement to sell to John Snevily a lot or piece of ground in the borough of Harrisburg, being 26 feet on Front street, 106 feet on Mulberry street, 26 feet by a 4-feet alley, and 106 feet to Front street, &c., &c. ; to make a good title, clear of encumbrances, &c., on 1st April 1839, and then give possession; and John Sne- vily agreed and covenanted, at or before the execution and deli- very of the deed, to pay $3000. This was an action of covenant to recover the purchase money. William Egle had executed a deed a few days before the 1st April 1839, and procured the tenants in possession to remove, but on that day he was sick of a disease, of which he died a few days after, having made his will, and appointed the plaintiffs below his executors. Snevily had received the possession on 1st April 1839, and has had possession by his tenants to this time. To the action he pleaded covenants performed, and after the jury was sworn, added the plea of non estfactum. It was admitted that the omission to tender a deed by Egle on 1st April 1839 was waived by Snevily 's accepting and keeping the possession. The plaintiffs below, after proving the execution of the articles of agreement, offered in evidence the articles dated - October 1838. The narr. followed the articles, and left a blank for the day of the month October 1838 in their date. The defendant objected to the articles because no day is men- May 1841.] OF PENNSYLVANIA. 481 [Snevily v. Egle.] tioned in the narr. when the articles were entered into, and took exception to the court admitting them in evidence, but this excep- tion, though assigned for error, was abandoned in this court. The articles of agreement were then read, and after describing the property as above, recited that it was part of the property sold by John Harris's executors to Jacob Peifer. Robert Harris proved that he, as executor of John Harris, had conveyed to Peifer, 15th October 1796, and Peifer had entered into possession; that after this Perry C. Nabb occupied it, or part of it, built a frame house on it, and sold to William Egle, who had been in possession till it was delivered to Snevily ; there were now three tenements on it. The will of Jacob Peifer, dated 28th February 1820, proved July 28th 1824, was then given in evidence. Those parts of this will which, in this court, were supposed material, were as follows : He gave to his wife the house and lot in which he resided, in the borough of Lebanon, as long as she remained his widow. After some legacies to grandchildren and two of his sons, which, with advancements to their fathers, were to be in full of their por- tions of his estate, he directed the rest of his real estate, of which the lot and tenements in question were part, to be rented by his executors, or the survivor of them, " until such time as a majority of my residuary legatees (hereinafter named) shall think expedi- ent and agree that it shall be sold, and the one-third of the rent, (deducting taxes and repairs) shall be paid to my wife from time to time, till the same is sold as aforesaid. And it is my will, and I hereby direct that my executors, or the survivor of them, as soon as the majority of my residuary legatees shall agree as aforesaid, shall sell said real estate for the best price that can be gotten for the same, and for such payments as my executors, or the survivor, shall think proper, and for most advantage to my estate ; but one- third of the purchase-money shall be and remain charged on my real estate during the life of my wife Esther, and she, my said wife, shall have and receive the yearly interest of the one-third part of the money in hand, and one-third part of the instalments or sales, as they respectively become due, of the purchase or con- sideration money aforesaid during her life." These bequests to his wife to be in lieu of dower. The testator then directs that the proceeds of sales of his lands, and all his personal property not before disposed of, shall be equally divided among his seven children thereafter named, after deducting such money and articles as had been advanced to each of them, or paid for them, so that they may have equal shares. The legatees named, are Mary Ann Stoy, widow, David Peifer, Jacob Peifer, Henry Peifer, Catharine Foust, wife of Daniel Foust. Abraham Peifer, and Esther Fitsberger, wife of Henry Fitsberger, and her two children, Catharine and Maria this last seventh put under the care of trustees and he appointed his son-in-law, Da- I. 61 2q 482 SUPREME COURT [Hamsbvrg [Snevily v. Egle.] niel Foust, and his son, Henry Peifer, executors of his will and trustees of his daughter, .Esther Fitsberger, and her two children. Plaintiffs then read a deed dated 21st March 1826, from Daniel Foust, surviving executor, to Perry C. Nabb. Deed dated 27th October 1832, from Perry C. Nabb to William Egle; and deed dated 1st April 1839, from William Egle to John Snevily. There seems to have been some doubt as to whether the Court of Common Pleas, under a former law, or the Orphans' Court, under the Act of 1832, was the proper one to decree a deed by Egle's executors, (the deed last mentioned, by Egle to Snevily, not having been delivered in Egle's lifetime ;) and petitions and regular proceedings were had in Common Pleas, and also in Orphans' Court, and the executors ordered to make a deed to John Snevily. John Snevily had joined the executors of Egle in the petition to direct a deed to him. The plaintiffs then proved an offer of the deed to John Snevily, on the llth of July 1840; and again a tender of the deed made by Egle, and of the deed made by the executors, on the 15th of July 1840. John Snevily then said he acknowledged the tender: made no objection. After this, no money being paid, this suit was brought. Plaintiffs lodged in court the deeds to defendant. Defendant then showed three certain judgments against Wil- liam Egle, in his lifetime; all of which appeared to be discharged on the docket ; the last of them on the 7th of July, before the deed was tendered. The testimony as above being closed, the counsel of the de- fendant did not address the jury. By our law and practice, either party may request the court to give an opinion to the jury on any point of law arising in the case ; no request of this kind was made to the court by defendant's counsel. The court in a few words told the jury: "The defendant has no defence, having got possession of the property, having instructed his counsel to plead covenants performed, alleging that he had paid the money, and instructed his counsel so to plead; not having denied the title of the plaintiffs, or even pleaded that the plaintiffs had not complied with their part of the contract, it would seem he wishes to keep the property without paying for it. His conduct has been trifling, &c. &c. We therefore direct a verdict for plaintiff." To this a writ of error was brought, and errors assigned. The first error was properly waived. Second error. The court erred in saying the plaintiff was en- titled to a verdict : First, because there was no evidence to show that the legatees of Jacob Peifer had made the agreement required by the will, previous to a sale ; nor that the widow was dead, or her lien on this property discharged. May 1841.] OF PENNSYLVANIA. 483 [Snevily v. Egle.J Second, because there were encumbrances when the deed was to have been made, and at and after the tender of the deed. I premise that the articles of agreement above referred to, stated the whole title of Egle, from John Harris's executors, in 1796, down to Egle. There was then full time and opportunity to Snevily to inquire as to the agreement of the legatees, and as to the death of the widow. The Peifer family lived a few miles distant in the borough of Lebanon. Able and astute counsel, with a man so conversant in contracts as his client, could not have omitted to call for the proof now first suggested in the assignment of errors ; unless he knew they had agreed previously to the sale, or ratified the sale by receiving their respective shares of the purchase money; and as to the widow, he had not neglected to inquire and learn whether she was dead, or if not, had drawn her interest on one-third of the purchase money. The court ex- pressed that their opinion was founded on the facts and pleadings. They had a right to do so ; and to assume that the matter now alleged as error was not pleaded, because it was certain the plain- tiff would have proved what would have fully answered such plea or pleas. The defendant's counsel was not ignorant of law, or careless of the interest of his clients. A new plea, non estfactum, had been added at or after the swearing the jury. John Snevily, with full notice of the title, had joined the executors of Egle in praying the court to authorize and direct them to execute a deed to him. When the deed was tendered, he made no objection to the title; he made none by his pleas. On non estfactum pleaded, generally, if the deed is proved, this plea admits the truth of its contents ; covenants performed, also puts the defendant to proof that he has done his part. The court had permitted the defendant to show encumbrances ; and of course would have permitted him, as they were bound to do under our Act of Assembly, to add any plea material during the trial. In this, or any such case, the charge was right, The testimony, except as to the tender, was in writing. The cause depended on the law; and there are cases, of which this is one, where it is the duty of the court to say that one party is entitled to a verdict. There is another error assigned ; in refusing leave to defendant to amend his pleadings during the trial of the cause, and before the court commenced charging the jury, as he proposed to do as follows: viz. "Plaintiffs did not perform the covenants on their part;" and yet charging the jury as he did. This will be disposed of by stating that nothing relating to such offer appears on the record ; no exception to the opinion of the court in rejecting the offer appears ; no certiorari to the judge, who lives in town, was asked for ; and the opposite coun- sel do not admit, but deny, that any such offer of a plea was made or spoken of until after the judge had charged the jury. 4S4 SUPREME COURT. [Harrisburg. [Snevily v. Egle.] We cannot reverse on what is not on the record sent to us, or even have it discussed. I will add, that the first sentence uttered by counsel for the plaintiff in error in this court was, " We don't object to the fact that the deed was not tendered on the day." That was waived, and J. Snevily entered on the possession. If the plaintiff sets out the title, he is bound to prove it as stated ; if he states, generally, that he has performed and offered a good title, defendant must plead that he did not offer, or was not seised of a good title, and such general plea was held good. Cro. Jac. 369 ; Platt on Cov. 308. Or defendant may plead as a reason for non-performance, that plaintiff has not performed a condition precedent. 1 Chit. PI. 355. Judgment affirmed. CASES or NORTHERN DISTRICT, JULY TERM 1841 Richards against Ayres. Merger depends generally upon the intention of the parties to be affected by it, and an intent to prevent it will be presumed, whenever it is the interest of the party that the encumbrance should not sink in the inheritance. ERROR to the Common Pleas of Susquehanna county. Isaac Ayres against Joseph T. Richards. Feigned issue. The object of this issue was to ascertain whether the plaintiff or defendant was entitled to the money made by the sale of the property of William Dobson, under a judgment of B. Barnly v. William Dobscm, No. 79, February Term 1839; which was the oldest judgment. The defendant claimed the money under a judgment, No. 66, September Term 1840, entered 15th of June 1840, against Dobson, in favour of J. S. & R. D. Peironnet. Upon the face of the records the plaintiff was entitled to the money, and the question was, whether the effect of the evidence given, was either to satisfy the plaintiff's judgment, or postpone its lien to that of the judgment assigned to defendant. John Clifford became the assignee of the oldest judgment, entered 5th of February 1839; and it seems from his testimony, that Dobson, by an arrangement made between them, was to convey the land, from the sale of which this money is made, to Ayres, the plaintiff, and that Ayres agreed to pay Clifford the I. 2 Q * (5) 486 SUPREME COURT [Sunbvry [Richards v. Ayrea.] amount of this judgment. At the time this arrangement was made, Dobson affirmed that there was no other lien upon the land. The deed to Ayres was executed on the 23d of June, and on the same day it was discovered that Peironnet's judgment had been entered on the 15th; when this was ascertained, Clifford, who had intended entering satisfaction on his judgment, assigned it to Ayres, Ayres having paid him, or given his note for the amount. Clifford testified that by the agreement, he was to assign the judg- ment to Ayres, if it became necessary for his security. He did so assign it, when he found that the deed of Dobson would not convey an unencumbered estate, as it had been agreed that it should. When Dobson affirmed there were no liens upon the land, it was agreed that the conveyance should be in full satisfac- tion of Clifford's judgment. Under the facts as stated by Dobson and Peironnet, the defendant's counsel asked the court to charge the jury that the defendant was entitled to the money; and they relied upon the case of Koons v. Hartman, (7 Watts 20.) The court below was of opinion that the plaintiff was entitled to recover, and thus instructed the jury. LEWIS, President. We cannot instruct as requested : the case cited, as well as the others referred to, are not applicable to this case. The plaintiff had a clear right to hold his judgment as a lien upon this land for his own security. He could not do this it is true, in such a manner as to prejudice another; but if there had been no assignment, and no agreement to assign the judgment by Clifford, the court would have permitted Ayres, after paying Clifford for the judgment, to come in and be substituted as the equitable owner of the judgment, in order to protect him against the fraud which Dobson would otherwise have practised upon him. The lien of Peironnet's judgment could not be prejudiced by this arrangement. When that was entered, it was subject to the older lien of Clifford's judgment, and is not now in any way affected by the transfer of the land to Ayres. The argument raised from the case of Koons v. Hartman, de- stroys itself. It assumes that Ayres being the owner of the land and of the judgment, the lien of the latter was thereby extin- guished, and so the judgment of Peironnet is entitled to the money. If the land belongs to Ayres, then the money cannot belong to the defendant, as it is only upon the ground that (so far as this question is concerned) the land belonged to Dobson, that it can be claimed by the defendant; for if Dobson did not own the land, then the defendant is not entitled to the money for which the land was sold. If Ayres being the owner of the judgment, either by assign- ment, or by such payment to Clifford as would give him the con- trol of it, had taken a deed of the land from Dobson, and then sold and conveyed that land to another person, he would have been estopped from setting up the lien of the judgment against July 184L] OF PENNSYLVANIA. 487 [Richards v. Ayres.] the land in the hand of his alienee. Had he attempted it, the principles laid down in the case above cited, would have been applicable. It might then with propriety have been said, that the judgment was merged in the deed : but this is not the case before us. The court therefore instruct the jury that under the evidence, if the jury believe John Clifford, the plaintiff is clearly entitled to the money. To this charge the defendant excepted, and assigned it for error. Case, for plaintiff in error, cited 7 Watts 20; 4 Kent. Cam. 102; 1 Fonb. Eq. 238. Greenough,for defendant in error, cited 8 Watts 146; 5 Watts 456. PER CURIAM. The doctrine of merger applicable to a case like the present, was fully considered in Dougherty v. Jack, (5 Watts 456) ; Moore v. The Harrisburg Bank, (8 Watts 146) ; and Pen- ington v. Coats, (6 Whart. 282) ; in the last of which it was said that merger depends generally, but not universally, on the inten- tion of the party to be affected ; that an intent to prevent it, is to be presumed wherever it was his interest that the term or encum- brance should not sink in the inheritance ; and that such a conse- quence takes place only where it is indifferent to him. Such be- ing the rule, it disposes of the case before us without more to do. The very object of the purchaser in taking an assignment of the judgment, was to protect his estate in the land ; and if the conse- quence of the union be not unyielding, there never was a stronger case for equitable interference ; consequently, the direction of the judge was entirely proper. Judgment affirmed. SUPREME COURT [Sunbury Graffius against Tottenham. In an action of ejectment, a defendant is not estopped from setting up a title under the Statute of Limitations by the fact, that he took a warrant for the land, and fixed a period for the commencement of interest within twenty-one years from the time of suit brought; it appearing also, that a previous warrant had been granted for the land to one under whom the plaintiff claimed. If one enter upon land claiming but without title, and die in possession, leav- ing a widow and children, one of whom continues in possession, and conveys the land to a third person, who goes into possession and continues it to a period beyond twenty-one years, the law will tack these possessions together so as to make a good title under the Statute of Limitations, the title being out of the com- monwealth. ERROR to the Common Pleas of Clinton county. Daniel Graffius and others against Leonard Tottenham and others. This was an action of ejectment for two tracts of land, in which the defendants took defence for 1 acre and 150 perches on the bank of the Susquehanna. The plaintiffs gave in evidence a perfect paper title to the land in dispute, and the defendants relied upon a title by the Statute of Limitations. The opinion of the court below, which was the subject of the errors assigned, gives a statement of the case and points raised by the defence. WOODWARD, President. The defendants allege that possession of the land in dispute was taken by Edmund Huff in 1816, and con- tinued until his death in 1819, and that his widow and one of his sons remained in possession till she died in 1820. The evidence of these facts is full and uncontradicted, and if you believe it, it would seem that old Edmund Huff had taken such a possession of this land as, if continued twenty-one years, would give him title thereto. But at the time of his death he had no title under the statute, and yet he had such an interest in the land as would and did actually descend to and vest in his heirs as tenants in com- mon. It was such an interest as the law recognises for many purposes. It was liable to seizure and sale for his debts ; he might maintain trespass in respect of it; it would pass by alienation; and it vested at his death, like any title to real estate, in his chil- dren, who were his heirs. James Huff was one of the children in whom an interest vested: if you believe the evidence as to his en- tering into possession immediately or very soon after his mother's death, the presumption of law would be, that he entered as heir to his father, and was holding the possession for himself and the other heirs. He could not set up title in himself against his bro- July 1841.] OF PENNSYLVANIA. 589 [Graffius v. Tottenham.] thers and sisters until he had done something to manifest his in- tention of holding adversely to them ; and the court is unable to see any evidence here that would enable James, even if he had been in possession twenty-one years, to exclude his brothers and sisters from the benefit of it. The possession of the father was continued for the benefit of the family, and on the 14th of April 1830, James makes a deed to the defendants for the land, and places them in possession, who continued it until suit brought. Now, what did James convey by that deed? Evidently no more than his interest, which was an equal share with each of the other children of his father. If there were nine of them, he conveyed an undivided ninth part, and thenceforth the defendants became tenants in common with the other children of Edmund Huff. If you find the entry and possession of Edmund Huff to have been such as I have explained they must have been to give title under the statute, and that the possession has been kept up by James Huff and the present de- fendants, until twenty-one years had elapsed before this suit was brought, then a complete title has been shown in the defendants, and the heirs of Edmund Huff, exclusive of James, to the land in controversy ; and the plaintiffs cannot recover. The plaintiffs have shown by their warrant, survey, and patent, that the title of the commonwealth had been granted ; and to such a possession, on appropriated land, the statute attaches its protec- tion. But the plaintiffs allege, and have requested the court to charge the jury, that the defendants cannot avail themselves of the bene- fit of any possession or improvement of this land, prior to March 1820, because that, on the 27th of August 1830, they applied for a warrant for 400 acres of land, including this improvement, and then proved by their grantor and witness, James Huff, that this improvement was commenced in October 1820, and not before. From the warrant it appears that, for some reason not explained, the date of the improvement was fixed in March, instead of Octo- ber 1820. The object of the law in requiring proof of the commencement of an improvement by the applicant for a warrant, was to fix the time truly, if he can ascertain it. His warrant and title relate back to the time at which he pays interest, and no matter what may be the date of his warrant, survey, and patent : there, in the beginning of his improvement, is the beginning of his title. But if ne alleges and proves a date to his improvement, short of the true one, and pays interest from it only, he shall not afterwards be permitted to show in court the true date, for the purpose of carrying that title back to an earlier period than he fixed in his dealings with the commonwealth. He is estopped from showing the truth. His improvement is by supposition earlier than is mentioned in his warrant, but he is not permitted to show this i. 62 490 SUPREME COURT \Sunbury [Graffius v. Tottenham.] fact when he sets up title under that warrant, for this would be to allow him to derive an advantage from a fraud practised against the commonwealth. To illustrate : The plaintiffs in this case claim under a war- rant of 1793. Suppose old Mr Huff had commenced an improve- ment on the same land in 1790, but in 1830, when he, and others claiming under him, apply for their warrant, they prove the im- provement to have been commenced in 1800. They know nothing of the warrant of 1793, and they suppose 1800 is early enough for their purposes ; but when they are sued, they find it necessary to carry their improvement warrant back to the true and real date of the improvement, in order to defend themselves against the warrant of 1793. But this they may not do; they are estopped by the date they furnish to the commonwealth, and have abandoned all prior improvement. They might have availed themselves of it, but they chose to abandon it, and they are concluded thereby. This position is abundantly established by the authorities cited in the argument ; but in all the cases cited, as in the case supposed, the party estopped was setting up title under his improvement warrant, and the effort was to carry that title back to a period earlier than the date assigned for the commencement of interest. But though this may not be done, may not the party set up another, and a distinct title ? Is he estopped from showing that in another way, and by other means, he has acquired an available title ? I think not. If the defendants were setting up title to this land under their improvement warrant of 1830, this principle of estoppel would apply. But they set up no such title, nor ask to extend their improvement back to an earlier period than that as- signed to it in their application. They repudiate that title wholly. They have not brought it into court, and we should not have heard of it if the plaintiffs had not told us. The defendants stand on a distinct and separate title a possession under the Statute of Limitations. This is a title which is as well defined, and where the necessary facts are proved, is as real and as dis- tinct from the title under an improvement warrant, as any title can be. This title to be available must be founded, as we have seen, in a possession of appropriated lands ; an improvement right can Only exist in unappropriated lands. An improvement right must be accompanied with a continued intention on the part of the settler to pay the commonwealth ; a possession under the statute need not be accompanied with any such intention. An improvement must have an actual resident settlement ; a title may be acquired under the statute by enclosure and cultivation without residence. So there is a real and well-understood difference between a title by improvement, and one under the Statute of Limitations. Now, the question is, are the defendants estopped from showing their title under the statute, by their assignment of a wrong date to their improvement, in the application for their warrant ? Cer- July 1841.] OF PENNSYLVANIA. 491 [Graffius v. Tottenham.] tainly not ; for the reason of estopping them has ceased. We saw that reason to be, that they might not be advantaged by a fraud practised on the commonwealth; nor are they, since they have abandoned their warrant altogether. They claim nothing from the commonwealth. They admit she has granted no title to them, and their defence proceeds on the assumption that she has granted all her rights to another. And their fraud, if there was any, im- parts no advantage to their title under the statute ; so that the reason of the doctrine contended for has ceased in this case, and the doctrine does not apply. It has been insisted on further by the plaintiffs, that they are bonafide purchasers, with notice of an improvement commencing in 1820, and not before; and that they had no notice of the claim which the defendants now make to the land that they purchased on the faith of the records in the land office, where the defendants had placed their admission that their title originated in 1820. The defendants' title by warrant is a nullity, because the land was appropriated in 1793; and this, the records of the land office showed to the plaintiffs truly. But, as purchasers of the title under the warrant of 1793, they would not look into the land office for evidence of the defendants' title under the Statute of Limitations. Concerning this point, they should obviously have inquired of the tenant in possession, and that possession was notice which must affect them now. If, therefore, under the principles of law which have been given you in regard to titles under the Statute of Limitations, you find the necessary facts to make out such a title in the defendants, and the heirs of Edmund Huff, the plaintiffs have shown nothing which in law prevents the defendants from availing themselves of that title, and your verdict should be for the defendants. Armstrong, for plaintiffs in error, contended that the warrant which the defendants took out in 1830 for the land in dispute, was an abandonment of any former title or claim under the Sta- tute of Limitations; and because they dated interest back to 1820, they were thereby estopped from giving any evidence of, or claiming title under, any improvement or possession of the land prior to that date. 3 Yeates 591, 59, 272; 5 Serg. $ Rawle 181; 4 Serg. 4* Rawle 434. The possession of James Huff cannot be tacked to that of his father, for it does not appear that he claimed under him ; on the contrary, he claimed for himself, and adversely to his brothers and sisters, for he sold the whole land to the defendants, and not his share as one of the heirs of his father. His possession, therefore, was the commencement of a new right, and not sufficient to bar the plaintiffs' recovery. Campbell, for defendants in error, argued that the defendant^ did not claim title under any warrant ; that was the plaintiffs' 492 SUPREME COURT [Sunbury [Graffius v. Tottenham.] own showing. After the defendants took out their warrant, they discovered that the land had been previously appropriated by the commonwealth, and then abandoned it. This mistake, although it contained an allegation as to the time of the com- mencement of interest, which was not sustained by the fact, is not to preclude the defendants from setting up a good title, inde- pendent of any warrant.. There was no fraud practised upon the commonwealth by their selling us land which they had pre- viously sold to another person. The principle of estoppel is only applicable as between the grantor and grantee; a stranger, as the plaintiff here is, cannot avail himself of it. 8 Watts 215; 10 Watts 224. It operates only between parties and privies. 7 Watts 405; 6 Watts 288. The opinion of the Court was delivered by GIBSON, C. J. Though there is no inherent privity between trespassers, it was held, in Overfield v. Christie, (7 Serg. 4" Rawlf. 177) that a tortious possession may, by our law, be transferred by deed or will so as to complete the bar of the Statute of Limi- tations, by the additional adverse possession of the transferree ; and such possession is transmissible by descent, even according to the English law. Did James Huff then succeed, by his entry, to the whole of his father's adverse possession, or only to an undi- vided share of it ? He came in at the death of his mother, who had kept the family together on the place for less than a year after his father's death. It is not denied that, as a tenant in common with his brothers and sisters, he succeeded to so much of his father's possession as appertained to his own share, but it is denied that he succeeded to any more of it ; and as it was not shown that the brothers and sisters had entered for themselves, it is argued that there was no actual possession of their shares in them to displace the constructive possession of the lawful owners, and that the statute consequently ceased to run in favour of their undivided interests; but that, in any event, as James did not suc- ceed to them by deed or will, he could not, on the principle of want of privity among trespassers, tack his adverse possession to that of his father for more than his own share. His entry merely would certainly not be an abatement of the shares of his brothers and sisters. That principle is distinctly asserted in Sharrington v. Stratton, (Plowd. 306) where it is stated that, " if the father dies seised of the land, and the youngest son enters, the oldest son shall not have an assize of mort d'ances- tor, or a writ of right, or any other action against him; for the law presumes that he who is so near to him in blood is also as near to him in love, and therefore it cannot be supposed that he entered as an enemy, but as a friend, to preserve the inheritance in his absence." Without more, then, the law would presume that James had entered, not to abate the shares of his brothers and July 1841.] OF PENNSYLVANIA. 403 [Graffius v. Tottenham.] sisters, but to preserve them for their use ; and his entry being consequently theirs, there would be privity enough between them to unite every part of his possession to that of their common ancestor. It would presume that he was in possession without wrong to them ; and as the possession of one joint tenant was deemed, in Ford v. Grey, (Salk. 285) to be the possession of the other, so far as to prevent the Statute of Limitations from run- ning against either a consequence attributed, in Carothers v. Dunning, (3 Serg. < Ruwle 381) to such a possession between tenants in common the possession of James would be the posses- sion of all the rest, to give the statute entire effect in their favour. Thus would stand his entry, unaffected by his subsequent con- veyance to the defendants, which, however, serves not to weaken the case. The English law, in regard to parceners, is laid down by Lord Coke, (1 Inst, 374 a) where he says that when " the one sister entereth into the whole, the possession being void (vacant), and maketh a feoffment in fee, the act subsequent doth so explain the entry precedent into the whole, that now, by construction of law, she was only seised of the whole ; and this feoffment can be no disseisin, nor any abatement, because they both made but one heir to the ancestor, and one freehold and inheritance descended to them." Now, though the children of an intestate decedent have not, with us, an entirety of interest as in joint tenancy, or even a unity of interest as in coparcenary, but, by the words of our statute, a severally of interest as in tenancy in common, yet we must respect our own usages which attach consequences to particular acts in the completion of an inchoate title, which would not be attached to them in the parent country. In Penn- sylvania, the name in a warrant has been considered a very slight indication of the ownership of it. It was a common prac- tice to use the name of a stranger without consulting him ; and almost any act of ownership, in the prosecution of the title, was considered primd facie evidence of a trust for him who performed it. "We know," said Mr Justice Yeates, in Cox v. Grant, (1 Yeates 166) "that in general the name in the location was merely nominal, and used as a kind of scaffolding for the building up of a formal and regular title ;" and this practice received peculiar in- dulgence between those who stood in the relation of parent and child. "In the case of a father making an application in the name of his children," said Mr Justice Smith, in Fogler v. Evig, (2 Yeates 120) "it shall be presumed to be for the use of the father." Why shall it not equally be presumed to be for the use of the father's heirs, when made on the foundation of his improve- ment in the name of one of his sons? Nothing is more usual, in such a case, than for the oldest, or some other son to enter and consummate the improvement for the use of the family, by a war- rant and survey in his own name ; and to convey the legal title to a purchaser, when the land is turned into money for purposes I. 2 R 494 SUPREME COURT [Sunbury [Graffius v. Tottenham.] of partition. To imply a disseisin, or an abatement from the con- veyance of such a warrantee, would be to imply a tort, against the truth of the case, to the persons intended to be benefited by it ; and such an implication would, in this instance, do them a substantial injury by means of a constructive wrong. It may be said, that if the warrant was taken out for the use of the family, it might have been proved. These arrangements, however, usu- ally take place upon an indistinct understanding, and without any specific agreement ; so that it is difficult to prove them by the testimony of the family, even when they are competent wit- nesses on the score of interest. It would be dangerous, therefore, to imply an ouster of the rest of the family from a conveyance by one of the sons in his own name ; and it is much more safe to apply the principle of Fogler v. Evig to such a transaction, wherever the presumption is not rebutted. I have treated the case as if Jarnes Huff had taken out the war- rant in his own name before the conveyance ; but it is certainly not the weaker because it was taken out in the name of his vendee. Another objection has been urged, which would preclude de- fence on the Statute of Limitations altogether. This ejectment was brought in February 1840, and the commencement of the set- tlement is stated in the application to have been in October 1820; so that if the beginning of the adverse possession may not be car- ried further back, the intervening time will be too short. The dis- ability incurred from misrepresenting the commencement of an improvement has never been extended further than to preclude the party from carrying back the commencement of his improve- ment title beyond the day specified. It was said by Chief Justice Tilghman, in Ewing v. M'Knight, (1 Serg. fy Rawle 131) " that when one derives title under a warrant, he is estopped from car- rying his title (under the warrant) further back than the time fixed by the warrant for the calculation of interest." " The war- rant-holder," it was said in Nicholls v. Laffcrty, (3 Yeates 272) " has precluded himself from deriving his equitable improvement beyond the day called for in the warrant." It was not said that he should not set up a subsequently acquired title which had been adverse to his own; and what else is a title acquired by the Sta- tute of Limitations, which, according to Pederick v. Searle, (5 Serg. 6f Rawle 240) transfers, to the adverse occupant, the title against which it has run. To give evidence of adverse possession is not to carry back title by the Statute of Limitations to the beginning of it ; for the statute is not maturing an inchoate title while it is running its course against an adverse one. The title of the ori- ginal owner is unaffected and untrammelled till the last moment : and when it is vested in the adverse occupant by the completion of the statutory bar, the transfer has relation to nothing which preceded it : the instant of conception is the instant of birth. But July 1841.] OF PENNSYLVANIA. 495 [Grafiius v. Tottenham.] the Chief Justice further said in Ewing v. M' Knight: "It was his (the applicant's) duty to tell the truth when he took out his warrant ; but if he told a falsehood, with a view of defrauding the proprietaries, it was but justice that he should be bound by his own assertion on all future occasions." This is a most righteous prin- ciple, but it is inapplicable to the case before us ; for it is one thing to allege a possession by settlement and cultivation as the founda- tion of an improvement title, and another to allege an adverse possession by enclosure, or cultivation without residence, to gain a different title by the Statute of Limitations : and it is certainly no reason that because the applicant has defrauded the common- wealth, he shall not be at liberty to assert a title against any one else. The consequence of such a fraud is an estoppel, not a for- feiture of the land. In proving an earlier adverse possession, the defendants proved an earlier improvement along with it ; but that this was immaterial, is shown by Coxe v. Ewing, (4 Yeates 431) in which it was ruled that though an improvement cannot be carried back to establish a title anterior to the time specified in the appli- cation, yet the evidence of it may be received to show that the survey of the other party could not legally take effect. "If it in- cluded the bona Resettlement of third persons," said Mr Justice Yeates, " it could not have received the sanction of the land office, or of the country, from their uniform usages. It is true that by going into the testimony, the defendants will receive a degree of benefit from improvements, the equity of which they seem to have abandoned ; but this appears inevitable, and flows as a necessary consequence from the investigation of the validity of the survey made for the plaintiffs." Thus all the cases go upon the ground that a fraud in this particular is a relinquishment of the equity of an earlier improvement ; but a title by the Statute of Limitations is not founded on an equity : it is purely legal. The principle of Coxe v. Ewing was reasserted in Wells v. Wright, (3 Wash. 250) in which it was ruled that though a party can not set up title by settlement prior to the day stated in his warrant for its commence- ment, he may nevertheless give evidence of an earlier settlement for the purpose of contesting a settlement right claimed on the other side. These two cases prove the rule to be that the appli- cant shall not go further back for the origin of his own title than the day assigned to it in his warrant or application, but that he may do so to affect the adverse title of another ; and in that as- pect, the evidence of an earlier adverse possession was competent and conclusive. Judgment affirmed. 496 SUPREME COURT [Sunbury Newell against Gibbs. Upon a trial in the Common Pleas in a proceeding which originated before two justices of the peace, by a landlord to obtain possession of demised pre- mises, it is competent for the defendant to set up as a defence, that the title of the landlord had expired by its own limitation, or that it had been devested dur- ing the term, and that he had the light from the owner, whose title had accrued pending the lease, to remain in possession. ERROR to the Common Pleas of Bradford county. Eli Gibbs against Albert Newell and George W. Hollenback. This action originated in a proceeding before two justices of the peace, under the landlord and tenant Act, to obtain possession of a store and dwelling-house in Wyalusing. Albert Newell and George W. Hollenback alleged that the title to the premises was disputed and claimed by William Griffis in virtue of a purchase by him at sheriff's sale, and that William Griffis had the deed of the sheriff of Bradford county for the same, which purchase at sheriff's sale was made on the 13th day of February 1837, and the sheriff's deed is dated the 15th day of February 1837, being since the commencement of the lease alleged to exist between the parties by Eli Gibbs. Upon which allegation of Newell and Hollenback, and the affi- davit of William Griffis, execution of the judgment of the justices was suspended, a transcript of the proceedings certified to the Common Pleas, and the appeal entered in that court. On the trial of the cause in the Common Pleas, after the plaintiff had given in evidence the record sent up from the ma- gistrates, the defendants offered to prove as follows : That John Hollenback entered into possession of the property in dispute in 1818, under a deed from Stephen Charlott and wife to the said Hollenback and William F. Dininger; that Amos York afterwards became the owner of Dininger's interest, and by col- lusion with the tenant of Hollenback, then in possession, obtained exclusive possession of the property in dispute. That York sub- sequently sold to William D. Vanhorn, who entered into posses- sion and sold to Ezekiel Griffis who entered into possession ; that on the 10th day of September 1832, Ezekiel Griffis executed a lease to Eli Gibbs, who entered into possession under said lease. That the term of Eli Gibbs, under said lease, was fully complete, and ended on the 1st day of May 1836. That on the 8th day of May 1834, William Keeler obtained a judgment against Ezekiel July 1841.] OF PENNSYLVANIA. 497 [Newell v. Gibbs.j Griffis for the sum of $500, and that the property in dispute was sold by execution upon said judgment and bid off by William Griffis on the 13th day of January 1837, to whom the sheriff duly executed, acknowledged, and delivered his deed, dated the 15th day of February 1837. All the conveyances mentioned above were offered and also proof that Eli Gibbs had never surren- dered up the possession to Ezekiel Griffis, but held over after the expiration of the lease, and after having received from Ezekiel Griffis three months' notice to quit before .the expiration of the lease, and also that he had received notice to quit from William Griffis, the purchaser at sheriff's sale, previous to the institution of the proceedings in this suit, to wit, immediately after the ac- knowledgment of the sheriff's deed to William Griffis. To which evidence, and every part thereof, the plaintiff objected. The court sustained the objection, overruled the evidence, and, at the request of the defendants, sealed a bill of exceptions. The defendants further offered to prove, that at the time Newell and Hollenback (against whom the possession is sought to be recovered) entered into the possession of the property in dispute, they did so under a distinct and independent title, and not under or as the tenant of Eli Gibbs ; that at the time Gibbs recognised and admitted the Hollenback title under which Newell and Hollenback entered, to be good and undisputed as to the one undivided half of said property; and that Gibbs has frequently declared that there never was any such lease as the one set forth in the proceedings before the magistrates. To which evidence the plaintiff objected. The court sustained the objection, over- ruled the evidence, and, at the request of defendant, sealed a bill of exceptions. Error assigned : The court erred in rejecting the testimony offered by the plain- tiffs as set forth in the bills of exception. Overton and Greenough,' for plaintiffs in error. The proof of- fered was, that Gibbs, the immediate lessor of the plaintiffs in error, was but a tenant by sufferance of Griffis, to whom we at- torned after the expiration of Gibbs's term. Why should Gibbs be permitted to recover the possession, to which he has no right, against the consent of his own lessor, when he must immediately restore it? The Act of 21st March 1772, must be construed ac- cording to its spirit and meaning, and will not bear a construction which works an injury to the landlord. Newell and Williston, for defendant in error, argued that the Act of 21st of March 1772, was plain in its terms, not admitting of different constructions on this point ; the only title that a ten- ant can set up against his landlord in a proceeding under that Act i. 63 2* 498 SUPREME COURT [Sunbury [Newell v. Gibbs.] is one derived by deed or descent from the lessor or by his will. The evidence offered in this case did not come within the proviso of the Act, but presented the plain proposition of a tenant offer- ing to defend himself by the evidence of a paramount title to that of his landlord, which would defeat the object of the Act, which was to give a summary remedy to a landlord to obtain possession of demised premises without the necessity of proving any other title than that he is a landlord of the defendant. The opinion of the Court was delivered by ROGERS, J. In an action of ejectment to recover possession of land, evidence such as was offered, is clearly admissible. For although the defendant is not permitted to show that his lessor never had title to the demised premises, he may on admitting that he once had title, prove that his interest has expired. As if the lessor being tenant, pur autre vie, bring debt against the lessee for rent accruing since the death of the cestui que vie, the tenant may prove (not that the lessor never had title, but admitting that he once had,) that the interest of the lessor is at an end. Co. Lit. 47 b; 6 Co. 15, Treporfs case; (2 Saund. 418 ri). So in an eject- ment by the landlord against the tenant, the tenant was permitted to show that the landlord's title had expired; although it was agreed that he could not have been permitted to prove that the landlord never had title. Syburn v. Slade, (4 T. R. 682) ; Doe dem. Jackson v. Rambotham, (3 Maule fy Selw. 516). Syburn v. Slade, was the case of a sub-lessee, as here, who defeated his lessor by proof that his title had expired. The doctrine is per- haps to be taken with this qualification, that it must appear that defence is made at the instance, or at least with the knowledge of the original lessor, or owner of the demised premises. But it is said that the lessor cannot be prevented from recovering the possession, when he pursues the remedy provided by the Act of the 21st of March 1772. To avoid the delay and expense in- cident to the action of ejectment, the Act of 1772 gives a sum- mary remedy to the lessor, when the tenant holds over the tene- ment demised to him, after the determination of his lease, but in other respects it neither enlarges the rights of the landlord, nor does it control or diminish the rights of the lessee, or of others who may be interested in preserving the possession. The lessor is at liberty to bring ejectment, or he may pursue the remedy given by the Act; and, if he elect the latter, after having required the lessee to remove from the premises, he may complain to two justices of the peace, who are required to summon twelve free- holders in the manner pointed out in the Act, and if on hearing the freeholders find that he had been possessed of the lands or tenements in question, that he demised the same for a term of years or at will to the person in possession, or some other person under whom he claims, or came into possession at a certain yearly July 1841.] OF PENNSYLVANIA. [Newell v. Gibbs.] rent, that the term is fully ended, that demand had been made of the lessee, or other person in possession, to leave the premises three months before the application, it is the duty of the justices to give judgment (of which record is to be made) that he recover the premises. The 13th section provides, that if the tenant shall allege that the title to the land* and tenements in question, is dis- puted and claimed by some other persons whom he shall name, in virtue of a right or title accrued or happening since the com- mencement of the lease, by descent, deed, or from or under the last will of the lessor, and if thereupon the person so claiming, &c., shall on oath, &c., declare that he verily believes that he is entitled to the premises in dispute, &c., and shall become bound, &c., then, and in such cases, and not otherwise, the justices shall forbear to give judgment. The general intention of the legisla- ture seems to have been to limit the jurisdiction of the justices and freeholders, to the simple inquiries above stated : these they were supposed fully competent to decide ; but when questions of a more serious and complicated nature may arise, involving the investigation of the rights of others, they are reserved for decision by the common law tribunal; in other words, the intention is obvious, to reserve to the Court of Common Pleas, all the juris- diction that has not been specially delegated to the Justices' and Freeholders' Court. This construction harmonizes the whole system. The objection is, that this case does not come within the proviso : but this depends on how the Act is construed ; whether we give it a literal or liberal construction. The plaintiff contends that the title of the person named, must not only accrue since the commencement of the lease, but that it is indispensable that it accrue by descent or deed from him, or under his last will ; that the lessor spoken of in the Act, is the immediate lessor under whom he obtained the possession; that to entitle the tenant to the benefit of the proviso, by which the proceedings are suspended, he must allege and prove that the title is in the person named, by reason of a descent cast, by deed, or from or under the last will of him from whom he rented the premises. Qui hceret in literd hceret in cortice, is a maxim which may be applied here. The tenant, it is true, does not offer to prove a literal compliance with the direc- tions of the Act, but he offers to show what is an equivalent, that the title of Gibbs had expired by lapse of time, and that since the commencement of his lease, the title had vested in a certain William Griffis, by virtue of a purchase at a sheriff's sale, of the interest of Ezekiel Griffis, who was the lessor of Gibbs, the plain- tiff The tenant offers to show that Gibbs has no right to the possession, because his lease from Griffis has expired, and further that Gibbs's lessor has consented that they, the defendants, should hold the land as his tenants. Disguise it as you may, it amounts to an attempt on the part of Gibbs, to regain the possession of the premises on an expired lease, against the consent of the owner, 500 SUPREME COURT [Sunbury [Newell v. Gibbs.J or in other words, to turn his own landlord out of possession ; for as against Gibbs it cannot be doubted that the possession of the defendants is the possession of Griffis. This cannot be done in an action of ejectment, as has been already shown ; and I see no indication in the Act, of an intention to enlarge the rights of the landlord, by enabling him to do in a summary process, that which cannot be done in a common law action. Nor is any in- tention discernible to diminish the rights of the tenant, or rather the rights of a third person, who in certain specified cases claims adversely to the immediate lessor. Although it must be confessed the words of the Act do not embrace the case in terms, yet it comes within the equity of the statute, and every day's experi- ence shows the utter impossibility of including every case which may arise on a statute; and hence the necessity (to prevent in- justice) of looking to the general intention, disregarding the strict letter. As the case stands on the offer, Gibbs was a tenant at sufferance ; his lease from Griffis had expired ; he held over after notice to quit, and although some time was suffered to elapse without any proceeding against him, yet Griffis had done no act. either by acceptance of rent or otherwise, to recognise his title. As such tenant, he had no right to the possession, as against his lessor. It must be remarked that the tenant cannot in any pro- ceeding, defeat the title of his landlord by an independent title. The title alleged by way of defence, must be connected with the title of the lessor, or it must be shown that the title of the lessor has been devested by an act of his own, or by descent from him. When this case is referred to the Common Pleas in the manner prescribed by the Act, the onus is thrown upon the tenant ; for all the facts which would be necessary to recover before the jus- tices, are either found by the jury, or are admitted by the tenant when he alleges the title to be in some third person. Judgment reversed, and a venire de now awarded. July 1841.] OF PENNSYLVANIA. 501 Foust against Ross. In an action of ejectment against one who enters without right, if the plaintiff show that the title to the land in dispute is out of the commonwealth, that taxes were assessed upon it, and that he holds a deed of the sheriff who sold it for the non-payment of taxes previously to the Act of 1815, it is such aprimdfacie title as puts the defendant to the necessity of showing a better right; which if he fail to do, the plaintiff is entitled to recover. To recover upon a title founded upon a sale for taxes prior to the Act of 1815, the plaintiff must show a strict compliance with the requisitions of all the acts of Assembly authorizing sales in such cases, or he must show what would amount to an abandonment of the title by the original owner ; and if it appear that such original owner had not looked after the land, and had not paid any taxes for it for upwards of twenty-one years, it would amount to an abandonment, and the holder of the tax title would be entitled to recover upon it against one who showed no title, and was a mere intruder. In an action of ejectment, upon the trial of which the defendant gave no evi- dence, but relied upon the insufficiency of the plaintiff's evidence in support of his title, it is not error in the court to instruct the jury that it is sufficient to entitle him to recover. A sheriff's deed, with a certificate endorsed upon it under the hand and official seal of the prothonotary, that it was duly acknowledged in open court, and entered of record, is primd facie evidence without showing the record. ERROR to the Common Pleas of Isuzerne county. William Ross against George Foust. Ejectment for a tract of land. The plaintiff, to maintain the issue on his part, gave the following evidence : 31st of August 1792, warrant to Mary Custard for 400 acres of land in Luzerne county. 27th June 1793, survey to Mary Custard for 401 T 2 7 acres and allowance. The plaintiff then offered in evidence 16th of March 1806, oath of Ambrose -Tille, assessor of Nes- copeck township, Luzerne county. 28th of September 1805, return of judges of election of Ambrose Tille, as assessor of said township. 21st of May 1806, warrant to commissioners of Luzerne county to assessors to assess the township of Nescopeck. C. W. Potter sworn. I am clerk for commissioners. Papers above-mentioned are filed in commissioners' office. They are from the files of the office. November 1st 1805, certificate of prothonotary of the election of Elisha Harding commissioner of Luzerne county. 12th of October 1805, return of the judges of election of Elisha Harding as commissioner of Luzerne county. 502 SUPREME COURT [Sunbury [Fouat v. Ross.] 1806 and 1807, assessments of Nescopeck township of a tract in name of Mary Custard. To which offer defendant objected ; the court overruled the ob- jection, and the defendant excepted. The above-mentioned papers were then given in evidence. The plaintiff then offered the following evidence : "General Advertizer" of Philadelphia, llth May 1808. "Luzerne Federalist" of 19th May 1809, with affidavit of editor. "Democratic Press," Philadelphia, of 15th April 1809, with affidavit of Isaac Frick, publisher of the Democratic Press, of 26 publications. " United States Gazette," Philadelphia, of 5th April 1809, with affidavit of book-keeper of publication for four weeks, of notice of James Wheeler and Commissioners of Luzerne county, of sale of lands for taxes ; the same notice in each paper; no names of owners of. land given. To which offer the defendant objected. The court overruled the objection, and the defendant excepted. The said newspapers were then given in evidence. C. W. Potter recalled. I have searched the files in the com- missioners' office for warrant from commissioners to Jacob Hart, sheriff, and find none. All the warrants are directed generally to the sheriff of Luzerne county. That is the case with all the warrants. The warrant, dated 1st of July 1807, and the book marked " original sales of James Wheeler, sheriff," were found together. All the warrants I found were also with this book. Cross-examined There were three or four warrants found together in book marked "original sales of James Wheeler, sheriff;" schedule was found in the same book. Warrant and schedule were not sealed or attached together ; nothing which connected this warrant with the schedule more than either of the others. I found no schedule of lands taxed for 1806. The plaintiff then offered in evidence schedule marked " origi- nal sales of James Wheeler, sheriff, of unseated lands, for taxes 1805-6-7," in which Mary Custard is taxed $14.3. To which offer defendant objected. The court overruled the objection. The defendant excepted. The plaintiff then gave the said schedule in evidence. The plaintiff then offered in evidence warrant, dated 1st of July 1807, of Benjamin Dorrance, Elisha Harding, and Hosea Tiffany, commissioners of Luzerne county, to the sheriff of Luzerne county. To which offer the defendant objected. The court overruled the objection, and the defendant excepted. The plaintiff then gave the said warrant in evidence. C. W. Potter recalled. I searched for list of lands sold by July 1841.] OF PENNSYLVANIA. 503 [Foust v. Ross.] Jacob Hart ; found none but paper marked Jacob Hart's sale-book 1808 and 1809. The plaintiff then offered in evidence Jacob Hart's sale-book of unseated lands sold for taxes, containing, inter alia, the follow- ing entry : " Custard, Mary, 40l acres sold to Silas Jackson." Also commission of Jacob Hart, sheriff of Luzerne county, dated 22d of October 1807. Also, the oaths of office and bond of the said Jacob Hart, dated 4th of November 1807. To which offer defendant objected. The court overruled the objection, and the defendant excepted. The plaintiff then gave the said sale-book, commission, oath, and bond in evidence. The plaintiff then offered in evidence the deed of Jacob Hart, sheriff of Luzerne county, dated 7th of August 1809, to Silas Jackson for Mary Custard, 401^ acres, for the consideration of $14.2; which deed recited a sale by said sheriff, of Mary Cus- tard to Silas Jackson, made in pursuance of the warrant of Elisha Harding, Hosea Tiffany, and James Wheeler, commissioners of Lu- zerne county, dated 5th of September then last past, (being 5th of September 1808,) for taxes of 1806 and 1807, amounting to $8.2. And in connexion with said offer, called Chester Tuttle, who being sworn, said : I was former clerk of the commissioners. I am familiar with the papers and records of the commissioners' office. I was the immediate predecessor of Mr Potter. I have made diligent search for a warrant directed to sheriff Hart in 1809, and could find none. The latest I could find was in 1807. Don't recollect of any note on the record of warrant having issued to Jacob Hart. No memorandum of the issuing of warrants to sheriffs in the office. The defendant objected to the admission of the aforesaid deed of Jacob Hart, sheriff, to Silas Jackson, in evidence. The court overruled the objection, and the defendant excepted. The said deed was then given in evidence. 5th of April 1811. Will of Silas Jackson, with power to sell, given to his executors. 27th of April 1811. Letters testamentary granted to Joseph Sinton, Charles Miner, and Elizabeth Jackson, executors named in the will. 27th of July 1814. Deed of executors aforesaid to William Ross for the land in the name of Mary Custard. The plaintiff then gave in evidence receipts for the payment of taxes for the land from 1811 to 1839 inclusive, except for the years 1818-19 and 1823-24. The plaintiff then offered the following writing in evidence : " 3d of July 1816. William Ross, of Wilkesbarre, claims Mary Custard's 400 acres." 604 SUPREME COURT [Sunbury [Foust v. Ross.] C. W. Potter recalled. I found the above paper in commis- sioners' office. Don't know when it was filed. Found it filed with the other claims in the office. Paper objected to by defendant. The court overruled the objec- tion, and the defendant excepted. The said paper, dated 3d of July 1816, was then given in evi- dence. George W. Williams sworn. In 1836 General William Ross wanted to pay taxes on Mary Custard for 1834 and 1835. I turned to books and found N. Beach had paid the taxes on that tract for 1834 and 1835. General Ross tendered me the money for those taxes. Elias Hoyt sworn. I have been on the Mary Custard tract. George Foust lives on it. He lives near the north corner of the tract. I re-surveyed it ; found the original line and corners. In April 1839, I found all the corners called for. Chester Tuttle recalled. I think for 1818 and 1819 Mary Cus- tard was not taxed. 1823 and 1824 it was not assessed. The plaintiff then rested, and the evidence was closed. The court then charged the jury as follows : JESSUP, President. There being in this case no disputed facts, the defendant having shown no title in himself, nor any interest in the land ; the plaintiff showing the deed of the sheriff and the other evidence connected with the payment of taxes by him from the year 1811 to 1839 inclusive, is, in the opinion of the court upon the whole case, entitled to recover. The verdict must be for the plaintiff. To which charge the defendant excepted. The opinion of the court overruling the objections to the evi- dence, and in their charge to the jury, was assigned for error. M'Clintock and Greenough, for plaintiff in error, argued that the settled law was, that all the prerequisites to a sale for taxes pre- viously to the Act of 1815, must be shown in support of a title : and in this case, it was perfectly clear that such evidence had not been given. It was not proved that the warrant recited in the deed to have been issued by the commissioners to the sheriff had ever existed, or that the persons named were commissioners. Ille- gal evidence was therefore admitted, and the judgment should be reversed, although this court might be of opinion that the plain- tiff was entitled to recover on the merits. The evidence given was all matter of fact, and should have been submitted to the jury for their determination ; but the court directed a verdict for the plaintiff, without submitting the evi- dence to the jury. Kidder, for defendant in error, whom the court declined to hear. July 1841.] OF PENNSYLVANIA. 605 [Foust v. Ross.] The opinion of the Court was delivered by HUSTON, J. Previous to the Act of 1815, the courts in this state had decided, that in showing title to lands sold for taxes, the purchaser must at the trial show that every step directed by the Acts of Assembly for assessing, advertising, and selling lands not inhabited, and for which the owners had not paid the taxes, must be literally and strictly complied with. These requisites, thus called for, were so numerous, and the evidence that they had been complied with, was so various, and, none of it being on record, so liable to accident and destruction by those interested, that it was supposed no title so acquired could be valid. It was also liable to this inconvenience, that the older the title, the more difficult it was to produce all the evidence required. At length, the Statute of Limitations was called in to aid such titles. At first the sales were made by the commissioners ; and, strange as it may seem, their deeds were executed by two or more of them as a corporate act, and one seal was affixed, though they had no common seal. These sales were soon determined to give no title ; and the sales and the deeds too, in common parlance, were spoken of as void. Yet in M'Coy v. Trustees of Dickinson College, a deed of this kind was admitted in evidence, as showing that the purchaser held under colour of title, that he claimed under his deed, and of course adversely to all others, and as designating the extent of his claim. In Read v. Goodyear, (17 Serg. fy Rawle 350) the land was sold in 1803 ; the purchaser had paid the taxes from that time to the trial, more than twenty- one years ; the former owner had never paid or offered to pay any taxes. The purchaser, and those claiming under him, held the land, though no proof of the regularity of the proceedings to sell could be given. I refer to that case as showing the state of things at, and previous to that decision, and the grounds on which it was held that the negligence of the owner was held to be suffi- cient to justify a jury in finding that the former owner had aban- doned his claim and the land. In Royer v. Benlow (10 Serg. &f Rawle 306) Chief Justice Tilghman had said, neglect to look after land, or pay taxes for more than twenty-one years, would justify a jury in presuming an abandonment. In Foster v. M'Divit (9 Watts 344), it is said an exact compliance with all the requisites prescribed by the laws, is only necessary as between the former owner and the pur- chaser. An actual possession, or such constructive possession as a purchaser at a tax sale has, is all that is required against one who enters without right. All that is required of a plaintiff in ejectment, in the first instance, after showing such title as he pur- chased to have been granted by the commonwealth, is to prove that the land was sold for taxes assessed, and exhibit his deed as against an intruder. This is such a prim& facie title, as to put the defendant to the necessity of showing a better right. A trea- ,. 64 2s 606 SUPREME COURT [Sunbury [Foust v. Ross.] surer's deed, and subsequent payment of taxes, is sufficient to recover against one who enters without title. If this case, which had but lately been published, had been seen at the trial below, we may suppose this cause would not have been brought to this court. The present case comes before us on bills of exceptions to testimony, and on exception to the charge of the court on the effect of that testimony. Some of the evidence offered by the plaintiff would at first view appear irrelevant ; or, at least, such as would only have been proper as rebutting evidence. The case, however, is in some respects under peculiar circumstances. A defendant in ejectment may show an outstanding title in a third person ; but it must be a valid subsisting title; not one abandoned, derelict, or barred by the Statute of Limitations. The plaintiff first showed a warrant, 30th of August 1792, to Mary Custard, and a survey and return on it for 401 / acres. Now, this showed title to have been at one time in Mary Custard, or whoever owned that warrant; and the plaintiff must show a better title, or a transfer of that title to himself, or it would be an outstanding title against him. He was proceeding to show a transfer of that title by a sale for taxes; that sale was before the Act of 1815. He must then show a strict compliance with every requisite pre- scribed by every Act for the sale of unseated land ; or, according to the casps above cited, show what would amount to an abandon- ment of the title of Mary Custard by its owner; as the above cases show, that not looking after the land, or paying taxes for twenty-one years, may be sufficient evidence of this : but upwards of thirty years makes a lapse of time w T hich, though perhaps not stronger in law, yet is as good in law, and strikes the mind as more conclusive. The plaintiff relied on a deed from the sheriff of Luzerne county, dated in 1809, and the payment of taxes since. It was not necessary to go further back, but if he could show that Mary Custard had been taxed from 1805, by the as- sessments in the commissioners' office, had never paid those taxes, and the land had been directed to be sold before 1809, had been publicly advertised in the " Luzerne Federalist," " Democratic Press," and " United States Gazette," in 1809 ; though all the newspapers could not be produced, showing a continuance regu- larly for the prescribed time in each of these papers, it was not error to admit all this evidence ; it had a bearing to prove a total dereliction or abandonment by the former owner, which, in this case, was as essential to the plaintiff, as to show a sale, not in all respects regular, to himself. The warrant to sell for unpaid taxes, signed by the three com- missioners, was objected to, but no reason is stated except that it was directed to the sheriff of Luzerne county, and not to Jacob Hart, sheriff of Luzerne. Now this was no objection. The sale- book, as it is called, of Jacob Hart (that is, a book in which he entered the tracts sold, and the purchasers, and the price) was July 1841.] OF PENNSYLVANIA. 507 [Foust v. Ross.] offered. In this case it was not necessary, because the deed was in the hand of the counsel to be given in evidence next. But perhaps the two were offered together ; the book might have been omitted ; it was not an error for which to reverse. If this book had been offered to supply the place of a lost deed, it might, without other evidence, have been a question of more difficulty ; if offered, as in a late case, to prove that tax had been assessed and was due, it would not alone have proved it. The admission of the deed by the sheriff for the tract in ques- tion was then offered and objected to. There was on it a certi- ficate of the prothonotary and seal of court, that it had been ac- knowledged in open court. The commission and oath of office of the sheriff had been given in evidence ; these were unnecessary ; there was no error in admitting the deed. Plaintiff then showed the payment of taxes since by himself, as per receipts, until this suit brought. Plaintiff then offered a paper, dated 3d of July 1816, found on file in commissioners' office, according to the Act of 1806, stating that this tract was owned by the plaintiff, William Ross. There was no mark showing when filed in the office. Alone, it would have been an immaterial paper would not have been any evi- dence of title but, being directed by Act of Assembly, and as connected with other evidence in this cause, there was no error in receiving it. By the 3d section of the Act of 3d of April 1804, no action shall be brought for the recovery of lands sold for taxes, unless the same be brought within five years after such sale. The court held this only applied to cases where the purchaser entered into possession ; so that a writ might be served on him. The Act of 29th of March 1824, prescribed a mode of giving notice to the purchaser, when he did not live on the lands or in the county, and gave former owners two years from that time, within which to commence suits. Now, although both these provisions were for the benefit of the former owner, and to protect the purchaser, if no suit was brought against him within the prescribed period, yet it is impossible not to see their bearing on a case like this. If the owner, Mary Custard, has lost all right by law, and the title of the purchaser is indefeasible against such owner, it is not easy to see why such purchaser, who has taken possession, or paid taxes, has not a good title against an intruder. The defendant showed no title; and the court told the jury, that on the evidence the plaintiff was entitled to recover. This is here objected to, as taking the facts from the jury. When there is evidence, especially parol evidence, on both sides, generally the facts must be left to the jury ; but when the defendant gives no evidence, and shows no right, but objects to the title of a plaintiff in ejectment, it very much resembles a demurrer to evidence, the decision of which is always with the court. In this case the 508 SUPREME COURT [Sunbury [Foust v. Ross.] question was, whether by law, taking into view the length of time beyond twenty-one years, the plaintiff had shown a title which gave a good right of entry against one who had no right, but was recently in possession without right ; and in such a case it was not only the right, but the duty of the court, taking into consideration the Acts of Assembly, and the settled construction of them, to say, as was said here, that the plaintiff was entitled to recover. But in this court an objection was taken, which was not men- tioned at the trial, and not assigned for error. This might be a sufficient cause for not noticing it here ; but it is thought best to remark on it. The deed from the sheriff to Ross was in due form, and on it was a certificate under the seal of the court, and official signature of the prothonotary, that the deed had been duly ac- knowledged in open court. But it was objected that the docket was not exhibited to show that the acknowledgment was duly en- tered on it ; and in support of the objection the plaintiff in error cited Bellas v. M'Carty, (10 Watts 21); Patterson v. Stewart, (10 Watts 470). In neither of these cases was the deed produced with the certificate of the acknowledgment, under seal of the court, endorsed on it ; and in both these cases it was shown or admitted that no entry of the acknowledgment had ever been made on the docket. It has not been decided that an entry under seal and signature of the acknowledgment, is not in any case prima facie evidence. The cases cited only show that a majority of the court decided that this may be rebutted, by showing that such acknowledgment was not and never had been on the docket. If in this case the deed as offered was evidence, and nothing was shown to contradict the official certificate, that certificate must be taken to be true. Judgment affirmed. July 1841.] OF PENNSYLVANIA. 509 Craig against Dale. The way-going crop, to which a tenant is entitled upon his leaving demised premises, includes as well the straw as the grain, which he may remove and dispose of as he pleases, being subject only to the terms of his contract, and not to any supposed custom of the country on that subject. ERROR to the Common Pleas of Northumberland county. William Dale against Charles Craig. This was an action of trover to recover the value of the straw of four hundred dozens of grain, under the following circumstances : The plaintiff leased a farm to the defendant upon the following terms : "This Indenture, made this 29th day of November, A. D. 1837, between William Dale, of Liberty township, Columbia county, of the one part, and Charles Craig, of Oxford township, Warren county, state of New Jersey, of the other part, witnesseth, that the said William Dale, for and in consideration of the yearly- rents and covenants hereinafter mentioned, hath let, and to farm let unto the said Charles Craig, all that messuage or tract of land whereon the said William Dale now resides, for and during the term of one'year from the first day of April next; the said Charles Craig agrees to pay to the said William Dale, or his heirs, the sum of $150 per year; the said William Dale reserves for his own and family's use, the new end of the house, and the kitchen loft and garret, and the one-fourth of the garden, and the one-fourth of the truck-patch ; he also reserves the crop in the ground, and room to put it in the barn and thrash it, and room in the east end of the stable for two horses and two cows; the said Charles Craig is to pay all taxes on said lot for said year, and to deliver up the possession of the said premises at the expiration of said term. In witness whereof, the parties have hereunto set their hands and seals, the day and year first above written." After the tenant removed from the premises, he took the way- going crop from the farm to another place to which he moved, and refused to return it. This action was brought by the landlord to recover the straw, upon the ground that it. should not have been taken from the demised premises. On the trial, there was evi- dence given by both parties to prove the custom of the country as to the right of a tenant to remove the straw from demised pre- mises, aud the witnesses differed about it. The court referred the cause to the jury, with instructions that they should be i. 2s* 510 SUPREME COURT [Sunbury [Craig v. Dale.] governed in their finding by the evidence of what the custom of the country was ; and they found for the plaintiff $16 damages. The opinion of the court was assigned for error. Miller and Slenker, for plaintiff in error, argued that the tenant was entitled to the way-going crop, which included as well the straw as the grain. 5 Binn. 285, 289; 2 Binn. 487; 1 Penn. Rep. 224; 8 Watts 282; 3 Serg. $ Rawle 512; Peake's Cas. 197 ; 1 Meriv. 15. But, for the sake of the argument, granting that the tenant was wrong in claiming a right to the straw, the plaintiff cannot support trover against him. In order to maintain this ac- tion, the plaintiff must show that he had the right of possession ajid right of property in the subject matter, at the time of the conversion, which could not be shown here. 12 East 616; 13 East 522; 11 East 210; 2 Saund. PL fy Ev. 869; 2 Selw. JV. P. 523 ; 7 Term R. 9 ; 3 Stark. Ev. 1490 ; 9 Cow. 52 ; 6 Johns. 44. Greenough, for defendant in error, cited 6 Law. Lib. 359. The opinion of the Court was delivered by KENNEDY, J. A number of errors have been assigned in this case, which it is unnecessary to notice in detail, as the court be- low erred in their instruction to the jury on the subject of the way-going crop and of what it consisted, and we think that the correction of their error in this respect will determine the whole case in favour of the plaintiffs in error, who were the defendants in the court below. The court on this matter charged the jury, that notwithstanding the tenant was entitled, in Pennsylvania, to the way-going crop according to the custom thereof, or law thereof they ought rather to have said, yet it depended upon the general custom or practice which prevailed among landlords and their tenants, whether the straw was included or not in the way- going crop ; and accordingly referred this question to the jury as one of fact, to be decided by them from the evidence which had been given in relation to it. Now, we are decidedly of opinion that the straw is a constituent part of the way-going crop; for it is just as much a part of the annual product arising entirely from the labour of the tenant as the grain itself, and being of real value to the tenant, and frequently indispensably necessary for the sup- port of his cattle, which he cannot possibly do without, more than he can the grain raised by him, there is just the same reason why he should have all the benefit to be derived from it, that there is for his having a right to take the grain, in order that he may make all the profit he can out of it, either by giving it to his cattle or disposing of it otherwise, as he shall think best. It is not essen- tially necessary that the straw grown upon a farm should be used or retained upon it, for the purpose of keeping it in the same pro- ductive state, and preventing it from becoming worse ; because July 1841.] OF PENNSYLVANIA. 511 [Craig v. Dale.] the soil of any farm may even be improved and rendered more fertile by keeping it in grass and permitting it to lie fallow a rea- sonable portion of the time, without using or leaving any of the straw upon it. And frequently a farm, while in this state, by using it for the purpose of feeding and grazing cattle, may be made productive of greater profit to the tenant, as also of value to the landlord, than by growing grain upon it the most of the time with the aid of all the straw belonging to it. This is putting it in a state of rest from cultivation, which land requires in order to render it very productive even of grain ; and all the straw or manure that can be made from it and applied to the land, will not supply the want of seasonable rest. The straw is a subject of merchandise also, as well as the grain, and why should not the tenant, when he pays a rent to the owner of the land equal to the annual value of it, have the full benefit of the straw for this pur- pose if he chooses. Farmers who till their own lands do not al- ways consider it essentially necessary that the straw grown there- on should be applied in some form or other, for the purpose of im- proving the soil ; for they frequently make merchandise of it by selling it ; and why should they, in case they let their lands to te- nants for full rents, receive the rents from them, and make profit beside out of the product of their labour by taking from them the straw and selling it? Distributive justice, in such case, would seem to give the straw as well as the grain to the tenant, as part of the way -going crop, to be taken and disposed of by him as he pleases, seeing it is the product of his own labour ; from the land of his lessor to be sure, but then he has paid the lessor a full com- pensation for the use of the land. If the tenant cannot have the straw as a part of the way-going crop, because it would be an injury to the farm to remove it therefrom; for the like reason, he would not be permitted, while he remained in the possession of the farm under his lease, to remove therefrom any of the hay made by him on it, for the purpose of selling or using it in anyway off the farm ; because it would be quite of as much benefit to the farm, if not much greater, to use the hay made from it by feeding it to cattle thereon. And even an additional reason seems to ex- ist against the tenant's removing the hay, that does not exist in the case of the straw; which is this, that the grass, of which the hay is made, is often not the product of the labour of the tenant, either in part or in whole, whereas the straw always is ; yet I ap- prehend that no person of ordinary experience throughout thr state, would attempt to question the right of the tenant to dispose of the hay made by him on the farm as he pleases, unless he bo expressly restrained from doing so by the terms of his lease. This he may be, because it is competent for the parties, by their agree- ment in this behalf, to make a law for themselves. If the land- lord, therefore, does not wish that any of the straw or hay grown and made on the leased premises should be removed from them, 512 SUPREME COURT [Sunbury [Craig v. Dale.] he ought to make his wish, in this respect, known to the tenant at the time of treating for the lease, so that the tenant may be ena- bled to meet it by not agreeing to give as much rent as otherwise he would do. If the lease be reduced into writing, whatever is finally agreed on between them, as to either the hay or the straw not being taken or removed from the leased premises, ou^ht to be inserted in the writing, otherwise the tenant will be entitled to dispose of them as he pleases. The court below were, there- fore, wrong in submitting it to the jury to be determined by them, as a question of fact, whether the straw formed a part of the way- going crop or not. Besides, the testimony showed that it ought not to have been left to the jury as a question of fact. For if it proved any thing at all, it was, that the general practice, as well as the general understanding was, that the tenant had a right to remove the straw ; or at most, that there was no general practice or custom, either in favour of or against his exercising such right. Two witnesses only were produced on the part of the plaintiff be- low, Peter Pursel and Samuel M'Mackin. The first of these tes- tified, that he believed it was the custom for tenants to leave the straw of the way-going crop, but he had known instances of tenants 9 hauling off" both the grain and the straw. The second, after stating that he was ignorant as to the point, that he never paid any attention to it, said it is generally understood tenants should leave the straw and such things on the ground. Three witnesses, however, were adduced on behalf of the tenant or defendant be- low, James Shearer, George Newcomer and Joseph Campbell. The first of them testified that he had had land farmed, and when the straw was not excepted in the lease, it had been the general custom, so far as he knew, for tenants to take the straw where they pleased ; that it was generally mentioned in the lease ; that he had not seen a lease where the straw was not reserved. The second of them testified that he had known several instances of tenants' taking the grain in the straw to adjoining farms. The third witness testified that he had known grain to be taken off in the straw: did not know it to be customary, but knew it to be done. So far, therefore, as regards the number of witnesses brought forward by the parties on this point, it would rather seem to have been in fa- vour of the tenant's side of the question. But surely, it could be little else than absurd, to say that a general custom could be established by such conflicting testimony. Such a thing cannot obtain generally without being generally known ; and if so, wit- nesses would concur in their testimony showing that it was so. But even supposing all the witnesses to have concurred in opinion that the general custom or practice was, so far as they had any knowledge of it, for the tenant to leave the straw of the way -go- ing crop on the land where it grew, it would still have been worse, if possible, to have determined from their evidence, that such was the general custom and practice throughout the whole state ; July 1841.] OF PENNSYLVANIA. 518 [Craig v. Dale.] when the witnesses have given no evidence whatever of their hav- ing any knowledge on the subject extending to the whole state ; but on the contrary, show clearly that their knowledge, at the utmost, only extends to the neighbourhood of their residence. If such evidence were to be held sufficient to establish a custom or usage on the subject, it is evident that the custom might be differ- ent not only in different counties of the state, but different in dif- ferent parts of the same county, without its being possible to set any fixed bounds or limits to it ; and hence would arise a state of uncertainty, incapable of being settled, that would prove a source of endless litigation. We are, therefore, of opinion, that the question which the court submitted to the jury to be decided by them as one of fact, was a question of law, which the court ought to have decided itself; and in doing so to have instructed the jury that the straw was a part of the way-going crop, and being so, the tenant had a right to remove it as well as the grain; and, consequently, the plaintiff below was not entitled to recover. Judgment reversed. M'Cabe against Morehead. In replevin where the property had been delivered to the plaintiff by the sheriff, the parties on the trial agreed that the jury might find the value of the property and damages in one sum, which was to settle all further claim to the property : Held, that the jury were rightly instructed by the court, that in assessing the damages for the defendant they were not confined to the interest on the value, but might give more, if necessary, to compensate the defendant. When goods are delivered to the plaintiff in replevin on a claim of property, and the plea of property is found for the defendant, the damages for detention consist of interest on the value of the goods when taken, from the time of taking till judgment rendered. But when the writ of replevin is sued out fraudulently and without colour of right, the jury may give exemplary damages, as in case of a wanton and malicious trespass. The defendant in replevin is not entitled to special damages occasioned by interruption in business, in consequence of the property being taken from him under the writ. A sale and delivery of personal property by one in possession contains an im- plied warranty of title : and on the issue of property between two persons claim- ing as vendees of the same goods, the vendor cannot be called as a witness, by one, to prove he sold and delivered the goods to him, and not to the other.* ERROR to the Common Pleas of Union county. John M'Cabe against John Morehead. This was an action of replevin for a raft of timber. The plaintiff gave in evidence a contract between him and i. 65 514 SUPREME COURT \Sunbury [M'Cabe v. More head.] Cyrenius E. Wykoff, by which the latter agreed to deliver a raft of timber, particularly described, at Wrightsville, by a certain time, and then examined witnesses to prove that the timber in question was that contracted for, and that the defendant knew that at the time he purchased the timber from Wykoff. The defendant then offered in evidence the deposition of Wykoff to prove that he had sold the timber to the defendant, and that he had never sold it to the plaintiff. The plaintiff objected to the competency of the witness, on the ground of interest: but the court overruled the objection, and sealed a bill of exceptions. Before the jury heard the charge of the court, the parties agreed that they might find the value of the property and damages all in one sum. On the subject of the measure of damages, the court thus charged the jury: By an agreement of record in this cause, the jury are to allow the value of the property as well as damages, in a single sum. If the property was wrongfully stopped by the plaintiff, and taken out of the defendant's possession at Shamokin, on its destination to market at Harrisburg or Marietta, the jury may allow the market price at Harrisburg or Marietta, deducting the expenses of taking the property there. In addition to this, the jury ought to allow at least the interest upon the value, from the time it was taken from the defendant, on the 3d of May 1838, to the present time. But the jury are not confined to the interest upon the value, in assessing damages for the taking and detention. They may give more than that amount, if they think under all the cir- cumstances, that will not be sufficient to make the defendant whole, and compensate him for the injury he has sustained. Verdict for defendant, for $511.46. Miller and Greenough, for plaintiff in error. Wykoff was not a competent witness, but was interested to defeat the plaintiff's recovery. In an action by the defendant against him, on the warranty implied in the sale and delivery, he would have been entitled to recover the costs of this action as part of his dam- ages. That there was an implied warranty, see Ross on Vend. 334 ; 2 Stark. 752. The measure of damages in a case like this, where there was, to say the least of it, an honest difference of opinion about the right, can be no other than the value of the property and inte- rest., 4 Pick. 466; 7 Cow. 294; 14 Johns. 128; 8 Wend. 705; 2 Wend. 144; 14 Johns. 385; 12 Pick. 324; Roscoe 82. Hepburn, for defendant in error, on the subject of the mea- sure of damages, argued that the facts of the case exhibited op- pressive conduct on the part of the plaintiff, such as justified the July 1841.] OF PENNSYLVANIA. 515 [M'Cabe v. Morehead.] court in referring them to the jury, with instructions that they might allow damages beyond the value of the property and inte- rest, and cited 4 Watts 418; 8 Wend. 505 ; 5 Serg. $ Rawle 130; 3 Watts 287 ; 6 Serg. <$- Rawle 300, 426 ; 3 Watts 333 ; 12 Serg. fy Rawle 94. The opinion of the Court was delivered by SERGEANT, J. Two errors have been assigned in the present case. The first is in admitting the deposition of Cyrenius E. Wykoff, which was received in evidence on the part of the de- fendant, having been objected to by the plaintiff, who alleged that Wykoff was interested in favour of the defendant, and was there- fore an incompetent witness. The court below, it is stated, considered him as indifferent between these parties, and equally liable to either, and therefore a competent witness. We are of opinion that so far as regarded the costs of this suit, he was more interested in the success of the defendant, than that of the plain- tiff, and was therefore an incompetent witness. His evidence goes to establish that he sold and delivered the lumber in dispute, to Morehead ; and not to M'Cabe. If this be so, although he might possibly be liable to M'Cabe, in case of M'Cabe's failure here, in an action against him by M'Cabe, for breach of contract, in not delivering lumber according to his engagement ; yet he was not liable, so far as respected the claim of M'Cabe to the lumber now in question. Whereas, according to his showing, he would be liable to Morehead, in case of Morehead's failure in this suit, for the non-delivery of this very lumber. For as every sale and delivery of personal property by one in possession, contains an implied warranty of title, he would stand in relation to More- head as a guarantor of this lumber; and if Morehead lost it by a better title existing in M'Cabe, he would be responsible to More- head for the costs of this suit. We therefore think the court be- low erred in admitting the deposition of Morehead. The second error assigned is in the charge of the court. It appears that during the trial of the cause, the parties agreed that the jury might find the value of the property and damages in one sum, which was to settle all further claim to the property. The judge, in his charge, told the jury that in assessing the damages for the taking and detention, they were not confined to the inte- rest upon the value, but might give more than that amount, if they thought, under all the circumstances, that amount was not sufficient to make the defendant whole, to compensate him for the injury he had sustained. By the above-mentioned agreement of the parties, the case was taken out of the general practice in replevin, which is, that where the property is delivered by the sheriff to the plaintiff in the replevin, on a claim of property, and the plea of property is found for the defendant, he is entitled to a return of the property, and damages for the detention. Easlon 516 SUPREME COURT [Sunbury [M'Cabe v. Morehead.j v. Worthington, (5 Serg. fy Rawle 130). These damages ordina- rily consist of the interest o.n the value of the goods when taken, from the time of taking till the judgment rendered. There are, however, cases where the jury may be allowed to give more than this interest. Where a writ of replevin is sued out fraudulently, and without colour of right, the jury would be warranted in giving even exemplary damages, in the same manner as they might do for a wanton or malicious trespass. Brizsee v. Maybee, (21 Wend. 144). Even in trover, which merely complains of a finding and conversion of the property, it was held by the court in Taylor v. Morgan, (3 Watts 334) that the plaintiff may, under circum- stances of vexation or oppression in the taking of the property by the defendant, recover more than the value of the property and interest. There is no reason why the defendant in replevin, should not have the same measure of damages, on a verdict find- ing the plea of property in his favour. But I am not aware that in any other instances the measure of damages has been allowed to exceed the interest. It has been expressly held that the defendant is not entitled to any special damages he has sus- tained by being interrupted in his business, in consequence of the property being taken from him under the replevin. Brizsee v. Maybee, (21 Wend. 144). In examining the evidence in the present case, there does nut seem to be any thing in the conduct of the plaintiff in taking out the replevin, and claiming and detaining the property, manifest- ing malice or wanton vexation. Wykoff had made a contract with him to furnish him two rafts of lumber, and although this identical raft would seem never to have been his, but to have been sold and delivered to Morehead, M'Cabe might honestly believe he had a right to it. If so, the payment of the value and interest, and costs of suit, appears to be a sufficient penalty upon him for asserting by legal process, a mistaken claim. The jury ought, however, in assessing the damages, to give Morehead the full value of the articles at the place they were to be delivered, and at the time they were to be so delivered, and the interest on that sum. This is the legal compensation in a case where no wanton, vexatious, oppressive, or culpable conduct on the part of the plaintiff is proved. Judgment reversed, and venire facias de novo awarded. July 1841.] OF PENNSYLVANIA. 517 Strawbridge against Fun stone. The compensation of a wife for owelty of partition already made, is subject to the control of the husband, who may submit it to arbitrators ; and upon the sub- sequent death of the husband, the wife's rights will stand as if she had entered into the submission when sole and remained so. ERROR to the Common Pleas of Columbia county. Mary Strawbridge against Jesse Funstone. This was an ac- tion of assumpsit, in which the question arose whether there was any cause of action laid in the plaintiff's declaration, which was as follows : Columbia County, ss. Jesse Funstone, late of the county of Columbia, yeoman, was summoned to answer Mary Strawbridge of a plea that he render unto her $475, that he owes and unjustly detains, &c. And whereupon the said Mary Strawbridge, by Joshua W. Comly, her attorney, comes and complains for that whereas heretofore, to wit, on the twentieth day of August, in the year of our Lord one thousand eight hundred and twenty-four, at the county of Colum- bia aforesaid, certain differences having arisen, and being depend- ing between one William Strawbridge, (then and there being in- termarried with the said Mary Strawbridge, plaintiff in this suit,) and one Hugh Allen, and the said Jesse Funstone, of and con- cerning the valuation and owelty of partition of certain lands, situate in Derry township, in the county of Columbia ; of which said lands, the said Mary Strawbridge, (before her intermarriage with the said William Strawbridge,) and the said Hugh Allen and Jesse Funstone, had made partition and division among themselves. That afterwards, to wit, on the twentieth day of August, in the year of our Lord one thousand eight hundred and twenty-four, at the county of Columbia aforesaid, the said Wil- liam Strawbridge, Hugh Allen, and Jesse Funstone, referred all matters in variance between them, of and concerning the valua- tion and owelty of partition of the said lands above-mentioned, to Thomas Woodside, John F. Ross, Mathew Calvin, John Blee, and Andrew M'Reynolds, arbitrators, indifferently chosen by them, the said William Strawbridge, Hugh Allen, and Jesse Funstone. That afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, the said Thomas Woodside, John F. Ross, Mathew Calvin, John Blee, and Andrew M'Reynolds, arbitrators, chosen as aforesaid, made their certain award in writing; whereby they, the said arbitrators, awarded and directed that the said i. 2x 518 SUPREME COURT [Sunbury [Strawbridge v. Funstone.] Hugh Allen and Jesse Funstone should jointly pay to the said Mary Strawbridge, the just sum of $475. That afterwards, to wit, the same day and year last aforesaid, at the county of Co- lumbia aforesaid, the said William Strawbridge, Hugh Allen, and Jesse Funstone, by their deed underwritten the said award, so made as aforesaid by the said Thomas Woodside, John F. Ross, Mathew Calvin, John Blee, and Andrew M'Reynolds, bound themselves, under their hands and seals, to be bound by the same award ; which said award, together with the said deed underwritten the same, the said Mary Strawbridge here brings into court, &c. And the said Mary Strawbridge further avers, that before the commencement of this suit, to wit, on the twen- tieth day of October, in the year of our Lord one thousand eight hundred and thirty, at the county aforesaid, the said William Strawbridge and the said Hugh Allen both died. Nevertheless, the said Jesse Funstone and the said Hugh Allen, in the lifetime of the said Hugh Allen, (although often required,) the aforesaid sum of $475 to the said William Strawbridge and Mary Strawbridge, or either of them, in the lifetime of the said William Strawbridge, or to the said Mary Strawbridge, after the death of the said William Strawbridge, yet hath not rendered, but the same to the said William Strawbridge and Mary Straw- bridge, to render hitherto have altogether refused, and the same to the said Mary Strawbridge to render, the said Jesse Funstone still doth refuse. To the damage of the said Mary Strawbridge $1000, and thereof she brings suit,