THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ' REPORTS CASES ARGUED AND ADJUDGED IN THE SUPREME COURT OF PENNSYLVANIA. BY WILLIAM RAWLE, JR., CHARLES B. PENROSE AND FREDERICK WATTS, COUNSELLORS AT LAW. VOL. I. THIRD EDITION, REVISED AND CORRECTED. BY I. TYSON MORRIS, ESQ. PHILADELPHIA: KAY & BROTHER, LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS, 1880. Kf 45 Eastern District of Pennsylvania, to wit : BE IT REMEMBERED, That on the twenty-ninth day of May, in the fifty-fourth year of the independence of the United States of America, A. 1). 1830, William Rawle, Jun., Charles B. Penrose, and Frederick Watts, of the said district, have deposited in this office the title of a book, the right whereof they claim as authors, in the words following, to wit : " Reports of Cases adjudged in the Supreme Court of Pennsylvania. By Wil- liam Rawle, Jun., Charles B. Penrose, and Frederick Watts, Counsellors at Law. Vol. I." In conformity to the Act of the Congress of the United States, entitled " An Act for the encouragement of Learning, by securing the copies of Maps, Charts and Books to the Authors and Proprietors of such Copies, during the times therein mentioned ;" and also to the Ac.t entitled " An Act supplementary to an Act entitled An Act for the encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies during the times therein mentioned, and extending die benefits thereof to the arts of Designing, Engraving and Etching Historical and other prints." D. CALDWELL, Clerk of the Eastern District of Pennsylvania. Entered, according to Acf of Congress, in the year 1880, BY KAY A BROTHER, In the Office of the Librarian of Congress at Washington. Itinter. JUDGES SUPREME COURT OF PENNSYLVANIA, DURING THE PERIOD OF THESE REPORTS. JOHN BANNISTER GIBSON, . MOLTON C. ROGERS, .... CHARLES HUSTON, .... FREDERICK SMITH, . JOHN Ross (appointed the 16th of April 1830, in the place of JOHN TOD, Esq., deceased. Chief Justice. > Justices. SAMUEL DOUGLAS, Esq., Attorney-General (appointed Febru- ary 1830. TABLE OF CASES. PACK Aaron, McGirr v. . .49 Adams's Appeal, . . 447 Addleman v. Masterson, . 451 Allen, Irwin v. . . . 444 Aughinbaugh, Mulliken v. . 117 Baily v. Snyder, . . 126 Baldwin, Stewart v. . . 461 Bank of Penn'a v. Jacobs, . 161 Bast, Heilner v. . . 267 Beashorc, Wcngcrt v. . 232 Beatty, Evans v. . . 489 Beitler v. Zeigler . . 135 Bekey, Welsh v. . . 57 Benner, Hall v. . . . 402 Bctz's Appeal, . . . 271 Bctz v. Hccbncr, . . 280 Bishop, Lemon v. . . 485 Boies, Harvey v. . .12 Bossier, Demi v. . . 224 Bower, Sensor v. . . 450 Bowman v. Ilerr, . . 282 Brackbill. Johnston v . 364 Brady v. Colhoun . . 140 Brown, Frantz v. . . 257 Brown, Ilonniter v. . . 4S~ Bryan v. McCulloch, . . 421 Bull, II olden v. . . . 460 Burns v. Huntingdon Bank, 395 Callan, Elliott . 24 Carlisle u. Stitler, . 6 Centre and Kishacoquillas Turnpike Road Co., Mc- Conachy v. . Chambers v. Mifflin, . . Chess v. Chess, . . Chew v. Mathers, . . Clippinger v. Miller, . . Cobean v. Thompson, . Colhoun, Brady v. . . Commonwealth v. Dewart, . Commonwealth v. Farrelly, Commonwealth, Finney's Adna'r v. Commonwealth v. Fisher, . Commonwealth v. Henderson, Commonwealth v. Kreamcr, Commonwealth, Porter v. . Commonwealth v. llichter, . Commonwealth, Russell v. . Commonwealth, Snyder v. . Cornman, Gallatin v. . . Cox v. Norton, . . . Craighead, Searight v. . Crary, Ingham v. . Crosby v. Masscy, . . . Darrah r. Warnock, . . Dean v. Patton, . . . Decker v. Eisenhaucr, . Demi v. Bossier, . . Pevinney v. Reeder, . (v) 426 74 32 474 64 93 140 462 52 240 462 401 462 252 462 82 94 115 412 U>f> 3S9 2l?9 21 437 476 224 399 VI TABLE OF CASES. PAGE PAGE Dewart, Commonwealth v. . 462 Honniter v. Brown, 487 Diemer v. Sechrist, 419 Huntingdon Bank, Burns v. 395 Dietrich v. Dietrich 306 Huntingdon Bank, Gro v. . 425 Dixon, Smiley v. 439 Henderson, Commonwealth v. 401 Douer v. Stauffer, 198 Doughman v. McKennan, . 417 Immel v. Stoever Ingham v. Crary, 262 389 Eiseuhauer, Decker v. 476 Irwin v. Allen, . 444 Elliott v. Callan, 24 Elliott v. Sanderson, . 74 Jacobs, Bank of Penna. v. . 161 Engle v. Nelson, 442 Jacobs, Himes v. 152 Evans v. Beatty, 489 Johnston v. Brackbill, 364 Evans, Sidwell v. 383 Johnston v. Matson, . 371 Johnston v. Perkins, . 23 Farrelly, Commonwealth v. . 52 Johnston, Smith v. 471 Feather's Appeal, 322 Jonestown Road, 243 Finney's Adm. v. Common- wealth, .... 240 Keller v. Leib, 220 Fisher, Commonwealth v. 462 King v. King, 15 Porringer, Leihhart v. 492 King v. Morrison, 188 Frantz v. Brown, 257 Kline, Moore v. . 129 Kiinuiel. Konigmacher v. 207 Gable v. Hain, . 264 ' O Konigmacher v. Kimmel, 207 Gallatin v. Cornman, . 115 O Kreamer, Commonwealth v. 462 Gardner v. Lefevre, 73 Gratz v. Phillips, 333 Laughlin v. Laughlin, . 114 Gro v. Huntingdon Bank, . 425 Lefevre, Gardner v. 73 Leib, Keller v. . 220 Hahn v. llhoads, 484 Leinhart v. Forringer, 492 Hain, Gable v. . 264 Lemon v. Bishop, 485 Hall v. Benner, . 402 Lemon v. Thompson, . 482 Hart v. Withers, 285 Lewis, Purnroy v. 14 Harvey v. Boies, 12 Little v. Hodge, 501 Hcebner, B<:tz v. 280 Hege v. Hcgc, . 83 McBridc v. Hoey, 54 Heilncr v. Bast, . 267 McBride, Moore v. 148 Hcizu, Ilichwine v. 373 McConachy v. Turnpike Co., 426 Herr, Bowman v. 282 McCoy v. Turk, 499 Himes v. Jacobs, 152 McCulloch, Bryan v. . 421 Hodge, Little r. 501 McCulloch v. Sample, 422 Hoey, McBridc v. 54 McGirr v. Aaron, 49 Holdcn v. Bull, . 460 McGrew v. McLanahan, 44 TABLE OF CASES. vn I'A'.I. I>A(;K McKee's Case, . . -' . 449 Senser v. Bower, 450 McKennan v. Doughman, . 417 Shewall, Meredith v. . 495 McKim v. Somers, 297 Shuman v. Pfoutz, 61 McLanahan v. Lanahan, 96 Sidwell v. Evans, 383 McLanahan, McGrew v. 44 Slaymaker v. Wilson, . 2ir, Massey, Crosby v. 229 Smay v. Smith, 1 Masterson, Addleman v. 451 Smiley v. Dixon, 439 Mathers, Chew's Ex'rs v. . 474 Smith v. Johnston 471 Matson, Johnson v. 371 Smith, Smay v. 1 Meredith v. Shewull, . 495 Snyder, Baily v. 126 Mifflin, Chambers v. . 74 Snyder v. Commonwealth, . 94 Miller, Clippinger v. . 64 Snyder v. Zimmerman, 293 Mitchell, Williamson v. 9 Somers, McKim v. 297 Moore v. Kline, 129 Stauffer, Doner v. 198 Moore v. McBride, 148 Steinbridge's Appeal, . 4sl Morris, Willard v. 480 Stewart v. Baldwin, 4iil Morrison, King v. 188 Stitler, Carlisle v. G Mulliken v. Aughinbaugh, . 117 Stoever, Immel v. 2G2 Nelson, Engle v. 442 Tate, Iloyer v. . . 227 Norton, Cox v. 412 Thompson, Cobea v. . 93 Thompson, Lemon v. . 482 Patton, Dean v. 437 Turk, McCoy v. 499 Perkins, Johnston v. . 23 Turnpike, McConachy v. 426 Pfoutz, Shuman v. 61 Tyson v. Pollock 375 Phillips, Gratz v. 333 Pollock, Tyson v. 375 Ulrich v. Voneida, 245 Porter v. Commonwealth, 252 Voneida, Ulrich v. 245 Pumroy v. Lewis, 14 Warnock, Darrah v. . 21 Eeeder, Dcvinney v. . 399 Weeks, White v. 486 llhoads, Hahn v. 484 Welsh v. Bekey, 57 Koyer v. Tate, . 2'' ) 7 Wengert v. Beashore, . 232 Kichter, Commonwealth v. . 462 White v. Weeks, 486 llichwine v. Heirn, 373 Willard v. Morris. 480 Russell v. Commonwealth, . 82 Williamson v. Mitchell, 9 Wilson. Slavmaker r. 2 It! Sample, McCulloch v. 422 J Withers, Hart v. 285 Sanderson, Elliott r. . 74 Searight v. Craighead, 135 Xiegler, Beitler r. ir>5 Sechrist v. Diemer, 419 Zimmerman, Snyder v. 293 . - 1898 V W X- CASES 5 1 caqF*-' IN THE SUPREME COURT Of PENNSYLVANIA. WESTERN DISTRICT, SEPTEMBER TERM 1829. Smay against Smith et al. IN ERROR. When it can be proved or is admitted that a man acted as an assistant-sur- veyor, it is not requisite to show a special authority. ijeneral reputation that a person was employed as such, or proof that many drafts or field notes remaining in the surveyor's office are in his hand- writing, are evidence that he was an assistant. The return by a deputy-surveyor of a survey made by another, is a ratifica- tion of it, and it is immaterial whether there was a precedent authority to make it or not. An ejectment may, in some cases, be supported on a warrant without a survey. In ejectment to recover a tract of land, where reference is made in a deposi- tion to lines run and surveys made, and a draft is annexed, which does not embrace all those lines and surveys, but only those of the tract in dispute, it will be sufficient, if tho defendant was present to cross-examine, and did not ask for any other or further draft. ERROR to the Court of Common Picas of Cambria county. Tliis was an ejectment brought in the court below by the execu- tors of Dr. Smith to recover from John Smay, the defendant, part of a tract of two hundred acres of land in Cambria county. To support their claim the plaintiffs gave in evidence : 1st. A warrant to William Smith, D. I)., dated 7th April 1792, for one hundred acres near the thirteenth mile tree, on the road from Frankstown, in- cluding the Dollar Camp. 2d. A warrant to Rebecca Blodget (a daughter of Dr. Smith), dated 21st December 1792, for three hun- dred acres adjoining lands warranted to William Smith, D.D.. at a place called the Dollar Camp. The plaintiffs then offered the deposition of Thomas Yu-knn-. which went to show, that in 1794 he went and saw the outlines of the survey, as made by William O'Keefe, deputy-surveyor, in 1SOS. and many other surveys for Dr. Smith, as run by P. Cassidy. That Vickroy himself, at the instance of Dr. Smith, at different times run the division lines, and particularly run and marked all the 1 P. & W. 1 (1) 2 SUPREME COURT [Pittsburgh [Smay r. Smith.] lines of the said survey of O'Keefe (a draft of which, showing the courses and distances and corners he annexed to his deposition) ; that having completed all the. work, lie, in 1808, gave his field notes and draft to Mr. O'Keefe, who returned the survey for Dr. Smith. That the said survey included the thirteenth mile tree on a road from Frankstown to Conemaugh, and the Dollar Camp, a place so called, and well known. A cross-examination of the deponent was attached to the deposi- tion. The defendant objected to its admission. That it was not proved that P. Cassidy was an assistant of G. Woods, the deputy- surveyor. That it was not proved that Thomas Yickroy was an assistant of G. Woods. That he was not an assistant of O'Keefe. That the land was not in G. Woods's district. That Vickroy did not return with his deposition a draft of all the work done by P. Cassidy and himself. And that if Vickroy had no authority to make the survey it was useless to prove the existence of the lines on the ground. Which objections were overruled by the court and a bill of exceptions sealed. Other wituesses were then produced on the part of plaintiffs, who proved that they had examined the lines on the ground, and found the survey accurately made, and the defendant living within it. The plaintiff' then offered a certified copy of the survey by Wil- liam O'Keefe. To which it was objected, that the certificate at the foot of the draft returned, stated the above to be a copy of a survey made in 17U-4, by G. Woods, 00 in favor of Robert T. King, against his father, Earl King, ">0 of which was to be paid in hand, and Earl King was to give a judg- ment upon the docket of John McCord, Esq., a justice of the peace, who was also one of the three arbitiators present, for 4~>0, with stay of execution till the death of the defendant. Earl King. This arrangement took place at the house of Earl King, where John McCord, Esq., the justice, made a note in writing of the amount agreed upon to be entered as a judgment upon his docket, and showed it to the defendant, who was satisfied. The justice then 16 SUPREME COURT [Pittsburgh [King r. King.] returned home, and entered the judgment upon his docket, as agreed upon by the parties. A few days afterwards, Earl King called upon the justice to know if the judgment would carry interest, and upon being told that it would, he was dissatisfied with it. A transcript of this judgment was entered upon the records of the Common Pleas of the county of Erie, was burnt with the court-house, and its place supplied by a new transcript, entered by authority of the Act of Assembly, for that purpose, and to revive which, and show cause why execution should not issue, after the death of Earl King, this scire facias was issued to February term 1827. The defendant's pleas were nul tiel record; that the judgment was obtained by fraud ; and payment, with leave to give the special matter in evi- dence. The plaintiff replied non solvit, and no fraud. By a suggestion of the court, the defendants withdrew the plea of nul tiel record; the "plaintiff's counsel agreeing to the admis- sion of parol evidence on the plea of fraud." Much evidence was given on one side arid the other, as to the mental capacity of the defendant, Earl King, to attend to his own business, at the time he agreed to the amount of the report which the arbitrators should make : all which was submitted by the court to the jury as a matter of fact. The court (Shippen, president), in their charge to the jury on the subject of the alleged fraud, in obtaining the judgment, said, " that no evidence of or security for a debt could be framed or taken which would preclude an inquiry into the transaction if fraudulent ; and that this rule applied to the cause now trying; for if the jury believe that the judgment was obtained by fraud, in consequence of the mental incapacity of the defendant, it is void ; that a con- fession of judgment of this kind, before a justice of the peace, for so large a sum of money, is dangerous ; for the only place and man- ner in which a judgment entered for a sum above 100, before a justice, and a transcript thereof filed, could be inquired into, would be on a scire facias to revive ; when the question might be met that there was no chance of relief for the defendant, unless the plaintiff is under the necessity of issuing a scire facias, and then the question might be met ; that as the parties did not appear before the justice to enter the judgment, and as the justice merely took the admission of defendant, as to the amount of this judgment, at de- fendant's house, where he was called as an arbitrator, and entered it in his docket when he went home, in such a manner as to carry interest from the date, when it docs not appear so intended by Earl King, it is not a good, binding judgment under the Act of Assembly." The jury returned the following verdict : " That they find for defendants, on the ground of the judgment being void and illegal, and not on the plea of fraud." In this court the following errors were assigned : 1st. The plea of fraud was impertinent and illegal. Sept. 1829.] OF PENNSYLVANIA. 17 [King 0. King.] 2(1. The court erred in charging the jury, that the merits of the judgment could be investigated, and the judgment annulled, on the ground of fraud, in the scire facias suit. 3d. The court erred in charging the jury, that the judgment was not a good and binding one under the Act of Assembly. 4th. The jury having found that the judgment before the justice was not obtained bv fraud, could not find by their verdict that it was illegal and void. Selden, for plaintiff in error. The only question to be decided is, whether this judgment is illegal or not. By reference to the 14th section of the Act of 1810, Purd. Dig., it will be seen that the pro- ceedings in obtaining this judgment, have strictly conformed to the provisions of that act; and what it was that induced the court to in- struct the jury that this was not a valid and binding judgment, is difficult to determine. The merits of the original judgment cannot be inquired into on a plea to a scire facias; the cases in which judg- ments have been overhauled, is for something occurring since the entry of the judgment. I had thought that the adjudication of the case of Benton v. Burgot, 10 S. & R. 240, was decisive. There the plaintiff replied to the first plea, that there is such a record, and demurred to the second, viz. : that it was obtained by fraud, &c. The court overruled the demurrer, but this court on a writ of error said, that evidence of fraud, imposition, mistake, and want of con- sideration, is bad on demurrer. Nul tiel record is the only plea of which the defendant can avail himself. Also, the case of Cardesa v. Humes, 5 S. & 11. 65, in which the court say "that under no cir- cumstances can the merits of the original judgment be inquired into by the defendant, on a scire facias, so as to enable him to set up a defence which he might have used in the original suit." The court may open the judgment, but in no other way can their equitable power be interposed. The objection raised by the court below, was that the judgment was not entered at the justice's office ; he took a note of it ; he showed it to Earl King ; he was satisfied. The court further say, it was not entered according to the intent of the parties ; we have the certificate of the justice that it was. It then was a mistake as to interest ; that mistake will not invalidate the judgment. for defendant in error, was requested by the court to confine his remarks to the third error assigned. By the Act of Assembly under which this judgment is entered, a limited authority is given to justices of the peace, and it must be strictly pursued ; and a judgment entered by authority of that act, and not in conformity with its provisions, is void: Alborty r. Daw- son, 1 Binn. 100; Brenneman r. Greenawalt, 1 S. & K. 30. The act provides that the parties shall voluntarily appear before him for 1 P. & W. 2 18 SUPREME COURT [Pittsburgh [King v. King.] the purpose, when the judgment is to be entered for a sum exceed- ing $100; in this case, the parties did not appear before him at a place where he had the means of doing those things which the act requires of him ; and it would be unsafe and injudicious, to render valid the proceedings of a justice, which had been subjected to the uncertainty of a treacherous memory. So careful has the legisla- ture been to guard against looseness and carelessness, in the admin- istration of the law, that it has been provided that a justice shall not keep his stated office in a tavern. The facts exhibit the danger of such looseness, as has been practised in this case. The justice either forgot or mistook the terms upon which the judgment was agreed to by Earl King; for it was not his intention that the judg- ment should carry interest during his life, or be satisfied by any- thing but property when he was dead. A misdirection of the court upon matters of fact, is not assign- able for error. Rouvert v. Patton, 12 S. & R. 253; Long v. Ram- sey, 1 Id. 72. Hanks, on the same side, whom the court declined to hear. DerricJcson, in reply, on the plaintiff's consenting to withdraw the plea of nul ticl record, and the plea of fraud being entered, it was not intended by either party, or contemplated by the court, that the regularity or validity of the judgment as entered by the justice, should be inquired into, but merely the consideration of that judg- ment ; as it was alleged that the plaintiff had taken advantage of the defendant, then an aged man, and in his dotage, which fact, if it should be established to the satisfaction of the jury, it was agreed under the plea of fraud, should authorize them in finding for the defendants. But even if, from the pleadings, it should be considered that it was intended to submit the regularity of the judgment before the justice to the jury, for them to pass upon, their privileges and duties were infringed upon by the court, when they stated to the jury in positive terms, that the judgment was void and illegal ; which must have been on an assumption of facts, of which the court was not competent to judge. If, however, the court below was authorized from an inspection of the record, in saying that the judg- ment was void and illegal, then it was the province of this court to examine and ascertain, whether there was anything to justify a deci- sion of the kind. The principle of law is established and undenia- ble, that the court and the jury have each their respective duties, the one to decide questions of law, and the other, those of fact, but here it was a difficult matter to say whether this had been adhered to, for the court can only judge from inspection, and not from parol evidence, whether there is a record. And, although there was no denial of the record, the court say there was none ; and the jury, after finding there was no fraud, assumed the prerogative of the court's power, and, in its language, respond that the judgment was Sept. 1829.] OF PENNSYLVANIA. 19 [King . King.] void and illegal, which, if the fact was so, there was no necessity of a finding of the jury at all. By the Act of 1810, under which this judgment was entered, justices of the peace are authorized to enter judgments for any amount, when confessed by the parties. Here it does not appear that the parties appeared before the justice at his office, to enter the judgment, but that which was all material to the rendering of one, viz., the agreement to the sum, the stay of execution, the consent of the defendant, and his directions to the justice, then, within his district, to enter the judgment; and the subsequent and actual entry by the justice was fully complied with ; and any evidence there was that the judgment was not to be paid in money, but stock, arid no interest to accrue in the meantime, and declarations of the defendant, subsequent to the entry of the judgment, could have no effect to defeat the rights of the plaintiff ; and even if the facts had been so, it was making the justice a party to the fraudu- lent transaction. As fraudulent it must have been in him to enter a judgment contrary to the parties' agreement ; and would have justified the jury in finding a verdict for the defendant under the plea of fraud. The opinion of the court was delivered by GIBSON, C. J. The irregularity of inquiring into the validity of the original judgment in the trial of the scire facias, was waived by the plaintiff, who, in agreeing to the admission of parol evidence of the alleged fraud, consented to a trial on the merits ; and as the jury have negatived the fraud, the only assignment of error that can be urged, is that which relates to the direction with respect to the objection depending upon legal grounds. Evidence having been given that the parties being at the house of a third person, and be- fore arbitrators, of whom the justice was one, compromised their dispute, the defendant agreeing to confess judgment for a sum cer- tain ; and that the justice having, with the assent of the defendant, made a memorandum of the terms, entered it on his docket at his return home; the court instructed the jury that a judgment thus rendered is illegal and invalid. A court is defined to be a, place where justice is judicially admin- istered ; and a justice of the peace, being a judicial officer, must necessarily have his court or place of administering justice. That the matter has been so regarded by the legislature, is clear from the Act of Assembly by which he is forbidden to keep his " stated office" in a tavern. It is difficult to conceive of the office of a judge, without at the same time associating with it the idea of a place for the performance of its duties. The judgment was, how- ever, actually rendered at the justice's office. But were the parties before him there? That is not pretended; but, it is said, the con- fession of the defendant was received when they wore actually before him. That brings the argument back to the point from which it 20 SUPREME COURT [Pittsburgh [King t>. King.] started, the receiving of the confession being as much a judicial act as the recording of it. But it is said the justice acted under a pre- vious authority. It has been determined, however, that a warrant of attorney, which is quite as operative as a parol authority, is alto- gether insufficient. The Act of Assembly which gives him a quali- fied jurisdiction, requires the parties to be before him ; and the abuses that might otherwise be practised, are sufficiently obvious to require him to be held to the letter of his authority. In the instance before us, the defendant disputed the correctness of the entry at the moment it was shown to him. Had he been present when it was made there would have been either no cause or else no room for cavil. The judgment below is therefore to be affirmed; but the effect of it is not so easily determined. The verdict has not disposed of the demand, but merely of the original judgment. By agreeing to put this matter in issue on the trial of the scire facias, the parties have created difficulties which perhaps they did not anticipate. If the proper judgment on the verdict be that the original judgment be reversed or vacated, then the scire facias is, in substance, a writ of error on the part of the defendant, who, in contemplation of law, demands nothing by the writ ; and in giving effect to the agree- ment of the parties, I am unable to see how we can escape from giving it this preposterous effect. I am not even yet certain that we ought not to reverse it for the irregularity, and leave the defend- ant to start a second time from the proper point, whence his course would be a plain one. A transcript entered on the docket of the Common Pleas, is, as regards real estate, virtually a judgment of that court (Brannan v. Kelley, 8 S. & II. 479), consequently it may be set aside on motion, with or without an issue, where it has been obtained surreptitiously ; or it may be only opened to let the party into a defence when he has missed his time either by accident or mistake ; l a practice extremely beneficial and founded on the chan- cery powers which our courts are in the daily habit of exercising. The matters, however, which constitute the defendant's title to relief, must have existed previous to or at the time of rendering the judgment. If they be subsequent, the court will not interfere in a summary way, further than to stay the execution, because they may be pleaded to a scire facias, which, if it be necessary, the plaintiff will be ordered to bring. A neglect of this distinction sometimes produces confusion and inconvenience, and at all times evinces slovenliness of practice. Here the matter complained of, existed at the time of entering the judgment, consequently the proper course was an application to have the judgment set aside ; but as the defendant has succeeded by an irregular course, adopted it would seem by agreement, he is entitled only to the advantages 1 Contra, Leacock v. White, 7 II. 495; Boyd c. Miller, 2 Smith 431. Sept. 1829.] OF PENNSYLVANIA. 21 [King v. King.] that might haue been obtained in a regular way. The original judgment will therefore not stand in the way of a fresh action. Judgment affirmed. Referred to, infra 252 ; 10 W. 102. Followed, 6 W. 296. Darrah against Warnoch. IN ERROR. In a case which originated before a justice of the peace, from whose judg- ment there was an appeal to the Common Pleas, where a verdict and judgment was rendered for a sum exceeding the jurisdiction of the justice, this court affirmed the judgment upon the plaintiff's releasing the excess. Tins writ of error was issued to the Court of Common Pleas of Beaver county, upon the return of which, the record showed the proceedings in a suit, which originated before a justice of the peace, wherein James Warnoch was plaintiff, and Robert Darrah was defendant. It was brought to recover the amount of a judgment, which the defendant Darrah, had had against one Johnston, and upon which he received the money from the defendant Johnston, after he had transferred it to the plaintiff in this suit, James Warnoch. On the 28th July 1827, the justice rendered judgment for the plaintiff for $83.62* debt, and $1G.37 interest, making $100; from which judgment the defendant appealed. A declaration was filed containing two counts, the first a special one, and the second for money had and received. Pleas, non aasumpsit infra sex annos, and payment with leave, &c. Replication that he did assume within six years, and did not pay. Issues. On the 15th January 1828, a verdict and judgment were ren- dered for the plaintiff for $114.99. The error assigned in this court was that the cause of action was not within the jurisdiction of a justice of the peace, the recovery being for more than $100, and interest thereon. Fetterman, for the plaintiff in error. The law is well established that it is error to institute a suit before a justice, if the cause of action exceeds his jurisdiction: Hinds v. Willis, 13 S. & R. 214 ; Moore v. Wait, 1 Binn. 219; Owen r. Shelhamer, 3 Id. 4f> ; Laird v. McConachy, 3 S. & R. 290. The verdict and judgment in the Common Pleas, were rendered for $114.99. within six months of the time when the judgment of the justice was entered; by which it is manifest that the cause of action when the suit was instituted, exceeded the jurisdiction of the justice. 22 SUPREME COURT [Pittsburgh [Darrah v. Warnoch.] Forward and Moore, for defendant in error. In the case of McEntire v. McElduff, 1 S. & 11. 19, this court decided, that if the judgment of a justice be for a sum within his jurisdiction, and on an appeal to the Common Pleas, judgment be given for a sum above his jurisdiction, the judgment of that court shall not be arrested, unless it appear that the cause of action was different. See also McKinley v. McCalla, 5 Binn. 600. The jury had it in their power, and might have given something to the plaintiff', as damages to compensate him for rexation, and to cover the expenses of the appeal. Fetterman, in reply. In the case of Kingston v. Lee (not reported), this court reversed the judgment, because the damages laid in the declaration exceeded the jurisdiction of the justice, be- fore whom the suit originated. This was an action of assumpsit, and there could have been no damages allowed beyond the interest of the claim. PER CURIAM. The case is with the plaintiff, both on principle and authority. As regards the cause of action, the proceedings on appeal are not de novo ; and the plaintiff can recover no more than he might have recovered before the justice. A judgment for more would be decisive cither that the action was improperly commenced or improperly prosecuted. A plaintiff may undoubtedly remit a part of his demand, to bring the residue within the jurisdiction of a justice, 1 but having done so, he must proceed consistently, and cannot set up on the appeal the part that he had previously aban- doned. So that when the judgment on the appeal is for a greater sum than could have been recovered before the justice, it involves the plaintiff in the dilemma either of having sued for too much originally, or of having recovered what he had previously released. But as he might have released the excess below, and as there is an increasing liberality in courts of error, we think it reasonable to afford him an opportunity to do so here. The plaintiff instantly released the excess at the bar, and the judgment was affirmed. 1 Contra, 1 Wr. 390; 23 Smith 429-431. Sept. 1829.] OF PENNSYLVANIA. 23 Johnston against Perkins. IN ERROR. A. brings an action of assumpsit before a justice of the peace againet B., and recovers a judgment for a certain sum, from which B. appeals; the cause being afterwards tried in the Common Pleas, a verdict and judgment was rendered in favor of A. for the same sum : Held, that A. was entitled to recover his costs since the appeal. THIS record was returned upon a writ of error to Crawford county. James \V. Perkins brought a suit before a justice of the peace against James Johnston, and recovered a judgment on the 27th March 1824, for $15 ; from which Johnston appealed. The cause was afterwards tried in the Common Pleas, and on the loth Novem- ber 1825, a verdict was rendered for the plaintiff for $15. A mo- tion was then made that judgment should be entered without costs ; which the court on argument dismissed, and entered judgment gen- erally for costs. This was assigned for error in this court. Selden, for plaintiff in error. The defendant obtained a more favorable judgment than that of the justice, because if the interest to which the plaintiff would be entitled was added, the sum would be reater than Derrickson, for defendant in error, was stopped by the court. PER CURIAM. We cannot say that any part of the judgment was made up of interest since the appeal, or that the appellant suc- ceeded to the amount of a farthing. The interest being a small matter, the plaintiff may have abandoned it : and although a con- trary presumption might be made to support a judgment, it cannot to reverse one. The judgment for costs is not only possibly, but probably right ; and we are not to reverse on suspicion of error. Judgment affirmed. 24 SUPREME COURT [Pittsburgh Elliott against Callan. If one who is about to receive the assignment of a single bill, call upon the payer to know whether he will pay the money, and is informed by him that he will, he cannot afterwards set up any defence against the payment of the money to the assignee, which existed previous to such declaration. WRIT of error to the Court of Common Pleas of Indiana county. The plaintiff in error was the plaintiff below. On the 8th July 1822, the defendant, James Callan, appeared in person and confessed judgment to the plaintiff, James Elliott, for the use of Daniel Stan- ard, for the sum of $336.37. On the 26th September 1826, the defendant obtained a rule to show cause why the judgment should not be opened and he let into a defence ; which on the 17th March 1827, was made absolute. Upon the trial of the cause, the plain- tiff gave in evidence the single bill upon which the suit was founded, for 300, dated Cth March 1820, payable 1st July 1822, with inter- est from the 1st July 1821, together with the transfer thereof to Daniel Stanard. It was admitted, that the consideration of the said single bill was a conveyance of two out-lots in the borough of Indiana, Nos. 1 and 2, by James Elliott and wife, to James Callan. The defendant then gave in evidence a deed from James Elliott and wife to James Callan, dated 6th March 1820, for out-lots Nos. 1 and 2; and also the exemplification of a mortgage from James Elliott and wife to Joseph Brounson, executor of William Smith, deceased, dated 22d November 1819, and recorded the 15th May 1820, within six months from its date. It also appeared that this mortgage was given to secure the payment of a bond which bore even date therewith, conditioned for the payment of $242.51, to the said Joseph Brounson, by the said James Elliott and Joshua Mar- lin, who was his security. On the 19th February 1822, James Callan and wife conveyed the said two lots to Joshua Marlin ; and Joshua Marlin and wife, by deed dated the 29th January 1823, conveyed the same to Thomas Sharp. William Banks, Esq., was then called as a witness, and testified that the bond of James Elliott and Joshua Marlin had been sent to him for collection ; that it was the same money for which the mort- fage had been given ; that Elliott was insolvent, and he applied to larlin for payment, who at first refused, because Brounson had not entered up the mortgage, as he alleged he should have done ; but afterwards he paid the money, and Mr. Banks, by virtue of a power of attorney, entered satisfaction on the margin of the record ef the mortgage, on the 10th of August 1827. Sept. 1829.] OF PENNSYLVANIA. 25 [Elliott v. Callan.] The plaintiff then called James Elliott as a witness, who said: " Daniel Stanard was an attorney of this court, and had several claims against me for collection, to the amount of $300 or $400. I told him I had a single bill on James Callan, I would give him in payment, if he would take it ; he said he would agree to take it, provided Callan was agreed to it. I then went to Mr. Callan, and asked him if he had any objections to my transferring his single bill to Mr. Stanard, and told him that perhaps Mr. Stanard would give him more time than I could, as I was pressed. Mr. Callan tlien came with me to Mr. Stanard, and in his presence he agreed that I should assign the single bill to Mr. Stanard, and said he had no objections, and that he would pay it ; my impression was that Mr. Stanard gave me receipts on the docket. I know he released me from the payments of money ; he never called on me since. One case was Nourse, of Baltimore ; and McKinstry was another case ; I do not think I ever told Mr. Stanard of the mortgage ; Mr. Stan- ard agreed to take the single bill as a payment of the claims which he had against me, and settled with me for the whole amount thereof. I paid him the balance in money about a year afterwards ; Mr. Marlin was only my bail in the bond. I do not recollect that I told Callan of the mortgage at the time I sold to him. The single bill was assigned in Callan's presence to Mr. Stanard." The plaintiff's counsel requested the court to instruct the jury, that if they believe that James Callun, at and immediately before the assignment, knew that Daniel Stanard was about to purchase and take an assignment of said single bill, and did then and there inform said Daniel Stanard that he was willing he should purchase and take such assignment, and that he would pay the same, or had no objection to make against the payment of the same ; and that in consequence of said declaration, said Daniel Stanard did then and there purchase and take an assignment of said single bill, bona fide, and for a valuable consideration ; said James Callan cannot in this action set up as a defence the fact of an existing mortgage, given by the said James Elliott on the premises, which was the considera- tion of the said single bill. 2d. If the jury believe that Joshua Marlin, on the 29th July 1823, sold the mortgaged premises to Thomas Sharp, and afterwards, on the 14th June 1827, paid the amount of the money due thereon to the mortgagee, who by an attorney in fact entered satisfaction upon the margin of the record of the said mortgage, on the 10th August 1827, the defendant cannot set up said mortgage as a defence in this suit to the payment of his single bill. Whereupon the court (Young, president) charged the jury as fol- lows : " The defence to the recovery of the bond in question is what is usually termed an equitable one, founded on an alleged failure of the consideration to the extent of $242.51, with interest thereon from the 1st of March 1823. It appears that James Elliott exe- 26 SUPREME COURT [Pittsburgh [Elliott v. Callan.] cutcd a bond, with Joshua Marlin as his surety, and a mortgage dated 22d November 1819, to Joseph Brounson, on two out-lots, for securing the payment of that debt ; he afterwards sold and conveyed those out-lots to the defendant, with covenant of general warranty, by deed dated 6th March 1820. The mortgage was not then recorded, but was within six months from its date, and became a lien on the property from that date ; it was an encumbrance which Elliott was bound to remove; and having failed in this, it is admitted by the counsel for the real plaintiff, Mr. Stanard, that the defence would have been good as against Elliott, but he contends it is not available against his assignee, who, it is alleged, purchased the bond bona fide, for an adequate consideration, and with the knowledge and consent of the defendant himself. So far as it respects the last matter, it depends entirely on the testimony of Elliott, whose bias appears pretty strong in favor of the assignee, and whose confidence in him seems also to have been unlimited ; he made the assignment in satisfaction, as he stated, of various claims on him, for moneys he had collected as sheriff for Mr. Stanard's clients, without taking a receipt for any one of them ; his first impression was that Mr. Stan- ard entered receipts on the docket ; towards the conclusion of his testimony he stated that Mr. Stanard -generally receipted on the docket, as he, the witness, understood. There is no evidence of any receipt, and not even of the memorandum which was taken of the claims, at the time of this transaction : taking the whole of it into view, with his concealment of the mortgage, on that occasion, and so far as it appears on every other, the credit of the witness, to say the least of it, is not superior to exceptions. That subject, how- ever, is for your consideration, rather that that of the court. If you are not satisfied with the relation he has given ; if, in fact, you believe no valuable consideration passed from Stanard to Elliott at the time of the assignment, the weight of the reasoning founded on it falls to the ground. But admitting a valuable consideration did pass, unless you are further satisfied that when (as it appears from Elliott's testimony) the defendant agreed to the assignment, which was executed in his presence, this ought not to be considered as an undertaking to pay the bond at all events, if he was then ignorant of the mortgage. But it is said that Callan said he would pay it ; Elliott being called again, stated that Callan did so say. Were you to believe this, you ought to take into consideration the circum- stances under which the declaration was made. There is certainly no testimony of his having been then cognisant of the mortgage, nor until some short time before the motion at September term 1826, for opening the judgment, which the defendant had confessed. " Mr. Banks stated it was about a year before he received the money, which was on the 27th of June 1827 ; that the bond was transmitted to him from Brounson in Baltimore ; the existence of the mortgage was then but little known to any one; and the first Sept 1829.] OF PENNSYLVANIA. 27 [Elliott P. Callan.] notice of it seems to have been communicated by Mr. Marlin, who was alarmed for fear the mortgage had not been put on record ; this led Mr. Banks to search, and having found it "recorded, Mr. Sharp, who had purchased from Marlin, became also uneasy ; his willingness to the making of the assignments (or as it is otherwise called in the paper on which the court is requested to instruct the jury), his making no objection to the payment of the same, or even saying he would pay it, if ignorant of the mortgage, ought not under such circumstances to avoid the defence now set up. As to the remaining point, I am of opinion that Joshua Marlin, having sold the mortgaged property to Thomas Sharp with general war- ranty, was justified in paying off the encumbrance, to release him- self from an action at the suit of Sharp. An action on the mort- gage (which was in contemplation), would have been the conse- quence, unless the money had been paid, as has been testified by Mr. Banks. These legal proceedings would have been attended with costs and expenses, which it was the interest of all parties to avoid, and particularly that of Mr. Marlin. It seems there is a balance due on the bond in question, after deducting the principal and interest on the mortgage ; that balance the plaintiff is entitled to recover. Having given our sentiments upon the evidence, and our opinion on the questions of law proposed, the whole is now left to your consideration. In this court the following errors were assigned to the charge of the court below to the jury : 1st. In charging the jury that "admitting a valuable considera- tion did pass from Stanard to Elliott for the assignment of the sin- gle bill, and the defendant agreed to the assignment, which was executed in his presence ; yet this ought not to be considered as an undertaking to pay at all events, if he was then ignorant of the mortgage." 2d. In charging the jury, " that the willingness of the defendant to the making of the assignment, or his making no objection to the payment of the single bill, if ignorant of the mortgage,, ought not, under such circumstances, to avoid the defence then set up." Foster and Baldwin, for plaintiff in error. If an obligor assents to the assignment of his bond, without giving notice that he has a defence against it, he is concluded, and must pay it to the assignee under all circumstances : Games v. Field et al., 2 Yeates 541 ; Ludwick v. Croll, 2 Id. 56f> ; Davis v. Barr, 9 S. & R. 137; Weaver v. McCorkle, 14 Id. 304. If an assignee be induced to purchase a bond, in consequence of representations made by the obligor that he has no defence, or is willing to pay, the obligor can- not set up against the assignee any equity, of which he might have availed himself against the obligee, even though such communica- tions were not made directly to the assignee, but merely communi- 28 SUPREME COURT [Pittsburgh [Elliott 0. Callan.] cated to another in his hearing : McMullen for use v. Wenner, 16 S. & 11. 18 ; 1 Wash. R. 299. The confession of a judgment by Callan was a new promise to the assignee. White and Alexander, for defendant in error. It is admitted, that between Callan and Elliott the defence to the payment of the bond would be a valid and substantial one ; and this assignment amounts to nothing more than a transfer of the single bill, by El- liott, who was a sheriff of the county, to Mr. Stanard, an attorney of the same court, for the security of his clients, who were creditors of the sheriff; it is not therefore a case of a bona fide purchase with the assent of the obligor ; and therefore the authorities cited for the plaintiff in error are not applicable. The whole aspect of this case shows that no valuable consideration passed from Stanard to Elliott, but that the single bill was transferred as a collateral security. In the case of Burke v. Allen, 3 Yeates 356, it is determined that although a new promise be made to the assignee, yet " ignorantia juris excusat." The opinion of the court was delivered by SMITH, J. In the court below this was an action of debt, on a single bill, given by James Callan to James Elliott, dated the Gth of March 1820, payable the 1st of July 1822, and equitably as- signed to Daniel Stanard, the 15th of June 1822. On the 8th July 1822, the defendant in person confessed a judgment to the plaintiff for 3336.37. On the 20th September 1826, a rule to show cause why the judgment should not be opened, was obtained, which on the 17th of March 1827, was made absolute, the judgment to remain a lien in the mean time. The cause was tried on the 24th of Decem- ber 1828, when a verdict and judgment were rendered for the de- fendant. On the trial it was admitted that the single bill has been given in part of the consideration of two out-lots in the town of Indiana, sold by Elliott to Callan, and the record of a mortgage, dated the 22d of November 1819, duly recorded, from Elliott to Joseph Brounson, executor of William Smith, deceased, on the same lots, was given in evidence by the defendant, who contended that he was not liable to pay the bill, as the consideration of it had failed. The plaintiff then proved by James Elliott, " that he went to Callan, and asked him if he had any objection to a transfer of his bill to Daniel Stanard ; that on this Callan went with him to Stanard, and in the presence of Stanard agreed that he should assign the bill to Stanard, and said he had no objections, and would pay it." Before the cause was submitted to the jury, the plaintiff's counsel presented certain propositions to the court, and requested them to Sept. 1829.] OF PENNSYLVANIA. 29 [Elliott v. Callan.] instruct the jury, " That if they believed that James Callan, at and immediately before the assignment, knew that Daniel Stanard was about to purchase and take an assignment of said single bill, and did then and there inform said Daniel Stanard, that he was willing he should purchase and take such assignment, and that he would pay the same, or had no objections to make against the payment of the same, and that therefore in consequence of said declaration, said Daniel Stanard did then and there purchase and take an assign- ment of said single bill, bona fide, and for a valuable consideration, said James Callan cannot in this action set up as a defence the fact of an existing mortgage given by James Elliott, on the premises, for part payment of the purchase-money of the premises, for which said single bill had been given." The court thereupon instructed the jury, "That admitting a valuable consideration did pass, unless they were further satisfied, that when (as it appears from Elliott's testimony), the defendant agreed to the assignment, which was executed in his presence, this ought not to be considered as an undertaking to pay the bond at all events, if he were then ignorant of the mortgage." And the court further instructed the jury, that " his willingness to the making of the assignment (or as it is otherwise called in the paper on which the court is requested to instruct the jury), his making no objections to the payment of the same, or even saying he would pay it, if ignorant of the mortgage, ought not under such circumstances to avoid the defence now set up." To this charge the plaintiff excepted, and has assigned two errors arising on the same. If any principle of law can be considered as settled, or ever can remain settled, it is this, that the assignee of a bond or single bill, takes it subject to all objections which the obligor could legally make. He comes in the place of the obligee, and cannot stand in a different or better situation. So early as 1770, in the case of Whaler, assignee of Baynton, v. Iluzes' executors, we find in our earliest reports, 1 Dall. 23, this principle laid down by an able judge and great lawyer. And in our latest books of reports, 14 S. . Kean, 11 S. fc R. 280, it is said that if the testimony which the juror has given is such as to show that he has formed an opinion on one side or the other, he ought to be rejected. Here the juror was to testify as to a fact of great importance, and one which had created a great deal of excitement Sept. 1829.] OF PENNSYLVANIA. 37 [Chess t. Chess.] in the cause, on the one side and the other. But even if the judge who tried the cause was wrong in rejecting the juror, yet it is not a good reason for a new trial. This is the second verdict which has been rendered for the de- fendants, and unless manifest injustice is done, the court will not grant a new. trial : Willis's Lessee v. Buc'her, 2 Binn. 467 ; Keble's Lessee v. Arthurs, 3 Id. 26 ; Campbell v. Spencer, 2 Id. 133 ; Ileister v. Lynch, 1 Yeates 108. The opinion of the court was delivered by SMITH, J. The long and warmly litigated cause of Chess v. Chess and others, was tried at the last Circuit Court, at Pittsburgh, before Mr. Justice Rogers, and again comes before this court for decision, on an appeal from the judgment of that court. It is a family contest, and has not only been before the Court of Common Pleas, and the Supreme Court of Allegheny county, but also here- tofore before the Circuit Court ; and like most family disputes, has engendered more ill blood than is usual 'in other controversies. Indeed, in the present instance, this has not been merely confined to the parties immediately interested, but extended, as we regret to observe, to some of the witnesses. The late trial, as well as a for- mer one, was long and arduous, and after a most patient investiga- tion, and an examination of many .witnesses, which occupied the attention of Justice Rogers ten days, the cause was submitted, under his charge, to the decision of the jury. The action is an ejectment, brought by John Chess against William Chess and others, to recover the possession of about one-hundred and twenty-one acres of land, a part of a larger tract, late the estate of William Chess, deceased, father of the parties to this suit. The plaintiff alleges that the tract of land which he claims was conveyed to him by William Chess, his father, on the 14th of February 1823, by deed. The consideration in this deed mentioned is " natural love and affection, and $100." The defendants allege it was no/ so conveyed, and claim the land as heirs-at-law of the said William- Chess, deceased, so that both parties claim under the same person. At the trial the defendants contended that William Chess was generally and partially deranged ; that he was of weak mind, and a fit subject of imposition and fraud; and that such was the case when he executed the deed to John Chess. The plaintiff denied this and contended that his father was sane at the time; and further, that even if he had been insane on the 14th February 1823, yet, that he afterwards, at a time when he was in his perfect senses, ratified and confirmed the deed, and that therefore he is entitled to recover the land. The jury found a verdict for the defendants, and the court refused to set it aside, and grant a new trial, but rendered a judgment on the verdict, from which the plaintiff has appealed to this court, for the following reasons : That there was error, 1st, in 38 SUPREME COURT [Pittsburgh [Chess v. Chess.] admitting evidence of the declarations of William Chess, the grantor, after the execution of the deed in question, as testified by John Ross, William Kerns and others. '2. In admitting the evidence of Samuel Thompson, Benjamin Darlington, T. B. Dallas, George Evans, and others, in relation to the credibility of John Ross, whose general character had been impeached by the plaintiff, and of whose general character these witnesses had no knowledge. 3. In the court charging the jury that if the deed of the 14th Febru- ory 1823 was invalid at that time, it could not be made valid by any subsequent act. 4. In the court taking from the jury the consider- ation of the question whether the deed of the 14th February was confirmed by any subsequent act of confirmation, or by a new deliv- ery at any time afterwards. 5. In charging the jnry that record- ing the deed was no delivery, but only evidence of it, of which the jury were to judge. 6. In sustaining the challenge, by defendant's counsel, of William Kerr, a juror, on the sole ground that he was a witness in the cause. The exceptions or reasons for a new trial have been very zealously and ingeniously argued by the counsel, and many authorities have been cited. In regard to the first reason, it may be observed that the prin- ciple is well settled that no one shall be permitted to invalidate his own deed by his subsequent expressions ; hence it is contended by the plaintiff that the court before which the cause was tried, erred in admitting the declarations of William Chess, made after the exe- cution of the deed to John Chess. In reference to this part of the case, we ought constantly to keep in mind what the real question before the court was, and under what circumstances the conversa- tions of the grantor relative to other subjects, as well as to the deed, his declarations and acts were admitted in evidence, and submitted to the jury. The insanity of the grantor was alleged on one side, and denied on the other; and the jury were called to say whether William Chess was sane or insane on the 14th February 1823. If, under such circumstances, I was required to decide upon the sanity or insanity of a person, I know riot how I could do so unless I was permitted to judge from his conversations, declarations and acts ; these would be the only means to enable me to form a judgment. Here the defendants offered, and the court received, evidence of the conversations, the declarations and the acts of William Chess, not as is supposed for the purpose of verifying the facts stated in those conversations, but to show the state of his mind not to affect his deed not as declarations made contrary to it, after its execu- tion ; but to show imbecility of judgment, weakness of intellect, and insanity ; in short, to show the true character of his understanding, on and about the 14th of February 1823. This, and this alone, was the object of the evidence offered. The court did riot decide 'hat the declarations of the grantor, after deed made, could be re- ceived to destroy it ; but expressly said, that these declarations were Sept. 1829.] OF PENNSYLVANIA. 39 [Chess v. Chess.] admissible, not as revoking his acts done, but as the means of ascertaining whether William Chess was sane or insane, weak or competent. On this point the parties were at issue ; the defendants alleged insanity ; it therefore became incumbent on them to prove it, since everyone is presumed to be of perfect mind and memory, unless the contrary be proved. In this case the defendants pursued the proper course, and proceeded to prove William Chess's insanity, by the very index of his mind, his conversations, declarations and acts, for which purpose they examined many witnesses. The plain- tiff did the same, to prove his sanity, and thus there was brought before the court a mass of contradictory evidence, all of which was fairly and legally submitted to the consideration of the jury. The judge on the trial, discovered no inclination either way ; but on all the evidence, left the sanity of the testator as a mere fact to the jury, who were the judges of it. I fully agree with the counsel for the defendants, that the case of Smith v. Irish, so often mentioned, has placed this matter upon the true ground, and decides it. If, indeed, the evfdence had been received for purposes similar to those mentioned in the numerous cases cited on the part of the plaintiff, manifest error would have intervened ; the object, how- ever, having been entirely different, the cases do not apply. We think there was no error in admitting this evidence. In the next place it is said that the court erred in admitting the evidence of Samuel Thompson, T. 13. Dallas and others, in refation to the credibility of John Ross, one of the defendants' witnesses, whose general character had been impeached by the plaintiff, and of whose general character the witnesses had no knowledge. The plaintiff, after John Ross had been examined in chief on the part of the defendants, called a number of witnesses to hix general charac- ter in his neio that if there was error, it was in favor of the plaintiff who excepts. But, in our opinion, there was no error ; and a new trial cannot be awarded. I proceed to the examination of the 3d and 4th exceptions, which may be considered together. In regard to the 3d, I must, however, observe, that the counsel have changed the words and meaning of the judge, to make the error of which they complain. The excep Scot. 1829.] OF PENNSYLVANIA. 41 [Chess v. Chess.] tion is, that the jury was told, if the deed of 14th February 1823 was invalid at that time, it would not be made valid by any subse- quent act. The court did not say so ; the words of the judge are, " If William Chess was insane at the time of the execution and delivery of the deed, or if it was procured by imposition and fraud, the deed was absolutely void, and no acts or declarations of his, which have been given in evidence, would confirm it." The mean- ing of the judge is evident, and cannot be misunderstood; he did not inform the jury that an invalid deed could not be made valid. The cases cited on this subject clearly establish the distinction be- tween a void and an invalid or voidable deed, and that the former cannot be confirmed, though the latter may. In Coke Litt. 295 b, a confirmation is said to be a conveyance, whereby a voidable estate is made good, or a lesser estate is enlarged ; but when a deed is void, then there can be no confirmation. In 1 Wils. 320, it is decided that articles and conveyances obtained by fraud and impo- sition, were not made good by the subsequent acts and declarations of the grantor. So, also, in 15 Johns. 573, and Duncan v. McCul- lough, 4 S. & R. 483, and many more cases might be cited, estab- lishing the same doctrine. I think Lord Mansfield somewhere has said, there could be no confirmation of a thing absolutely void, but that the acts of the grantor might operate as a new grant. Were there any such acts proved in this case ? I have looked for these in the evidence, but looked in vain ; they are not to be found in the evidence (I speak here my own sentiments) ; on the contrary, a host of witnesses proved Mr. Chess, the father, to be "a man of weak and confined intellect, at intervals clearly insane, and at all times inca- pable of transacting business, unless with the advice of his family. He did not for many years before his death manage or direct the business of his farm, but left it to others. For years, as the plain- tiff's own witnesses proved, he entertained a groundless antipathy against his wife and his eldest daughter ; and some time previous to the 14th February 1823, he went to reside with the plaintiff, who had before been advanced more than a child's share, and whose influence over him I can hardly doubt. In short, the circumstances, before and at the execution of the deed, were very suspicious, and after the execution the grantor returned with John, continued with him, and subject to his influence, until near his death : during all which time there is not any act or expression, not a whisper proved, indicating a confirmation of his deed. To me it does appear that the condition of his intellect was no better after than before or at the date of the deed ; if indeed there was any change, it was for the worse. When he spoke of the contents of the deed, he spoke of it as containing one hundred acres and no more, although the deed contains one hundred and twenty-one acres : and we are told that the surplus of twenty-one acres is full of coal, and therefore very valuable. When and where, then, I ask, did he confirm the deed ? 42 SUPREME COURT [Pittsburgh [Chess v. Chess.] But, I repeat it, if there was actual fraud when the deed was exe- cuted, it could not be confirmed; for it then comes directly within the principle settled in Duncan v. McCullough, 4 S. & R. 483, and since in Adlum v. Yard, 1 Rawle 171. I cannot discover that the court took any facts, which were offered to prove a confirmation of the deed, from the consideration of the jury, to say whether the grantor was sane and of perfect mind, and free from imposition or fraud, at the time the alleged confirmation was made, or not. These exceptions are not sustained. The 5th reason is, that the court erred in charging the jury that recording the deed was no delivery, but only evidence of it, of which the jury were to judge. In the argument on this point, the counsel, with much apparent plausibility, contended that by our recordin" act of 1715, deeds of bargain and sale have the same o o effect as a feoffment ; that enrolling is like livery of seisin, and that a deed takes effect from it. Without entering into a minute exam- ination of the soundness of the doctrine contended for, as that appears to me not necessary, I will venture my opinion thus far, that although a feoffment, lease and release, fine, &c., are said to operate by transmutation of possession, and a bargain and sale by the act alluded to, has the same legal effect as a feoffment or release, yet the time when the deed of bargain and sale takes effect, is the time of actual delivery. In the evidence, I can see no proof of the delivery of the deed, or anything to show who placed it on record; indeed it appears to me there is not the color of evidence that Wil- liam Chess took the deed to the recording office ; all that is proved as to this part of the cause being that two or three weeks before the 1st of April, the old man came to the river, and said, " he was going to got the deed recorded ;" and thus far he is traced, and no further. It was not then recorded, and not until about three weeks after, by whom, no one does or can say. I have examined the tes- timony bearing on this part of the cause, with some attention, and it appears to me that if the deed was not delivered on the 14th February 1823, there is no evidence that it was delivered in fact at any other time. The mere reading of it is not a delivery ; it is evidence only of a delivery. Delivery is requisite to the proper and legal execution of a deed, and it may be, as stated in Shepp. Touch. 57-5H, and 12 Johns. 421, cither actual, by doing some- thing and saying nothing, or else verbal, by saying something and doing nothing ; or it may be by both ; but by one or both of them, it must be made; for otherwise, though it be ever so well sealed and written, yet it is of no force. The delivery may be to the party, or to any one for the party, if duly authorized ; or to a stranger, for the use of the party, without authority. I cannot sec, in this case, any evidence of a delivery by William Chess. If then the deed was not delivered on the 14th February 1823; if on that day the grantor was insane, it was incumbent on the plaintiff to Se.pt. 1829.] OF PENNSYLVANIA. 4J [Chess v. Chess.] show when it was delivered. lie has not done so ; and in the ab- sence of proof to the contrary, the inevitable presumption is, it was delivered in fact on the day it bears date ; but on that day the jury have pronounced him to have been insane, arid it is therefore almost unnecessary to say, this deed could not have been legally executed. The recording of it, therefore, was no delivery ; at best, it was merely evidence of delivery, of which the jury were to judge. I am accordingly of opinion, that in respect to this part of the cause, the judge charged correctly, and that, for the reason here assigned, we ought not to grant a new trial. o o One exception more remains to be adverted to. It is, that the court erred in sustaining the challenge of the defendants to a juror, on the sole ground that he was a witness in the cause. In the case of Harper & Irvine v. Kean, 11 S. & R. 280, the cause of challenge was " that the juror had been examined before arbi- trators as a witness for the defendant;" and it is there said that a juror is a competent witness, arid that therefore it cannot be a rule that one cannot Hbe a juror because he has given testimony in the same cause before another tribunal ; but it is also there said that it seems if the testimony be of such a nature as to show that he had formed an opinion in favor of one of the parties, it ought to exclude him from the jury. And this is right. In this case the juror wished to be excused, and stated he was a witness. It did not then appear what he would prove ; but it was known he was a witness for the plaintiff; and if, as it has been said, he was to be called to impeach the character of John Ross, who was an important witness for the defendants, and whom it was said the juror would not believe on oath, he ought to have been excluded from the jury. In deliv- ering the opinion of this court, in a case at the last term for the middle district a# Sunbury, I said that it did not escape the discern- ment of our legislature, that a principle requisite to secure a due administration of justice, and fair and impartial trials, was to have jurors who were impartial and entirely free from all kind of bias, or the suspicion thereof; that like Cesar's wife, they ought not only to be pure, but unsuspected. Our jury law manifestly pro- vides for an impartial jury. What was done in this particular, in the case before us ? Why a doubtful man was set aside, in a great measure upon his own request, and one not liable to any objection, substituted. Surely this was not error. In fine, we are of opinion that a new trial ought not to be granted, for any of the reasons assigned, but that the judgment of the Circuit Court should be affirmed. TOD, Justice, dissented. Rofcrred to, "2 P. & W. 231 ; 2 Barr 193 ; 10 Id. US 9. 340 : 1 Jones 352, 1 II. 494; 5 C. 489; 13 Wr. 212. Followed, 2 II. 154 ; 3 II. 56, 57. 4-1 SUPREME COURT [Pittiburgh McGrew against McLanahan et al. When land is sold upon a judgment, the sheriff must appropriate the money arising from the sale to existing liens, according to their priority, and convey to the purchaser a title free from encumbrances. When a judgment is obtained upon one of several bonds which were secured by a mortgage, and an execution issued thereon, upon which the mortgaged promises are levied, and .afterwards sold upon a venditioni exponas, before the mortgage is due, the purchaser takes the land discharged of the lien of the mortgage. THIS was an appeal from the decision of Huston, J., at a Circuit Court, held for Westmoreland county. Matthew McLanahan, one of the defendants, being the owner of a tract of land, on the 15th of April 1815, executed a mortgage thereon, to secure the payment of eight bonds to William Campbell, bearing even date with the said mortgage, and each conditioned for the payment of $350, on the 15th of April, in each year thereafter, until the whole should be paid. The mortgage was recorded on the 24th January 1817. On the 15th April 1817, two of the mort- gage bonds being due, William Campbell brought separate suits thereon against Matthew McLanahan, in the Common Pleas of Westmoreland county, to August term 1817, and obtained judg- ments : writs of fieri facias were issued to the next term, which were levied upon the mortgaged premises ; an inquisition thereon held, and the same condemned, whereupon to November term 1818, a venditioni exponas issued, and the land was sold to Simon Drum, the other defendant, for $050, who, on the 17th February 1819, received the sheriff's deed therefor. After the mortgage became due, a scire facias was issued thereon to August term 1*24, upon which judgment was obtained on the 21st October 1S24, for $205 ( .>.3l; a levari facias was issued to February term, 1*25, and the land was sold to James B. McGrew, the plaintiff, who was also the assignee of the mortgage, for 1500, who received the sheriff's deed for the same on the 23d of February 1*25. It also appeared that the $. Lenox, 9 S. & R. 308, goes far to decide the present question. In that case Chief Justice Tilghman remarked upon the practice in this state to sell land for its full value without regard to liens, and apply the proceeds of the sheriff's sale to the discharge of liens according to their priority. And in a case of Glass r. Gilmore, decided by this court in Lancaster, at May term, 182H, and not yet reported, Justice Rogers, in delivering the judg- ment of the court, said, " As respects sales made by the sheriff, it has been already decided that the lien of judgments, and even lega- cies, charged on lands are divested; that the judgment-creditor and legatee must look to the sheriff for their money, as the purchaser is not bound to see to the application of the purchase-money." But it is contended that the rights of a mortgagee stand on higher grounds than those of a prior judgment-creditor. I confess I cannot sec why they should ; nor have they, in adjudged cases on this subject, been so considered. Although mortgages in form are coveyances of lands, yet. in substance, they are only securities for the payment of money ; and the debt being once paid, or extin- guished, the mortgage is considered as at an end. Between the mortgage and the bond, there is, as Judge Duncan expresses it, an inseparable union ; the bond is the principal, the mortgage an inci- dent to it, incapable of existing without the debt, of which the bond is the original security. I low then, when the land is sold for the very debt secured by the bond, can the rights of mortgagees be con- sidered as standing on higher grounds than the rights of prior judg- ment-creditors ? The bond and mortgage are securities for one and the same debt, to recover which the mortgagee has three remedies ; he may proceed by ejectment and recover the premises; byscire facias on the mortgage, or on the bond, by an action of debt ; if he proceed by scire facias, or by action of debt on the bond, he may recover the debt by a sale of the land. The mortgagee lias his election to pro- ceed in either way, and having seen proper to proceed on the bonds, or one of them, arid have the land sold, the very substance itself, it would be wholly incongruous and unjust, to permit him to pro- ceed to a second sale on a scire facias, of the same substance. Such double proceedings are incompatible, and repugnant to the spirit and policy of our law. The land cannot be twice sold. If by this proceeding on one of the bonds, the mortgagee has been injured, or a loss has been sustained, it is his own fault, by not proceeding directly on the mortgage; to prevent injury to others, the mort- gagee must so deal with his security, as not to work injustice. Sept. 1829.] OF PENNSYLVANIA. 49 [McOrew v. McLanuhan.] These principles have been established by former decisions, particu- larly that in the case of McCall v. Lenox, 9 S. & 11. 302. But the question was put at rest by this court, at the last session at Sun- bury, in June, in the case of Willard and Adams v. Norris. 2 llawle 56. In that case, the land had been sold by the sheriff, with- out any reservation or mention of encumbrances. The question was, whether a purchaser at sheriff's sale, under a judgment, held the land freed and discharged of the lien of a mortgage, prior to the judgment; and it was decided that in this state, the usage had been, if there was not an express reservation, that the title and lien of a prior mortgage were divested, and extinguished by a sheriff's sale of the land on a younger judgment. The opinion delivered in that case, by Justice Tod, entered into a full examination of all the cases. We are, accordingly, of opinion, that the decision of the Circuit Court was right, and that the judgment be affirmed. Judgment affirmed. Followed, 7 W. 478 ; 1 Jones 260. Commented on, 1 II. 102. McGirr against Aaron. A gift to a charity shall not fail for the want of a trustee, but vest as soon as the charity has acquired a capacity to take. T. B., In his last will, made the following devise: "I give and bequeath all my real estate to wit, &c., to a Roman Catholic priest, that shall succeed me in this said place, to be entailed to him and to his successors, in trust, and for the use herein mentioned, in succession, for ever, &c., &c., and fur- ther, it is my will, that the priest for the time being, shall transmit the land so left him as aforesaid, to his successor, clear of all encumbrances as aforesaid," &c. //eW, that the devise was for the maintenance of a priest, but in ease of the congregation, and for its benefit alone. And the congre- gation is entitled to take the profits in the first instance, but subject to a riuht in the priest, to have them applied to his support. Tins was an ejectment originally brought in the Court of Com- mon Pleas of Westmoreland county, and removed by habeas corpus cum causa, to the Circuit Court of the same county, where it was tried before Huston, Justice. The plaintiff, an inducted Roman Catholic priest, on the trial of the cause, claimed the premises in controversy, two tracts of land in Westmoreland county, as answering the description of the devisee under the will of the Rev. Theodorus Browers. dated the 23d October 1700, and duly proved in the register's office. 1 P. & W. 4 50 SUPREME COURT [Pittsburgh [McGirr v. Aaron.] The only part of the will which is material to an understanding of the case is as follows : " Item, I give and bequeath all my real estate, viz. : my place on which I now live, called ' Sportsman's Hall,' and one other tract of land on Loyalhanna creek, called ' O'Neal's Victory,' with their appurtenances, to a Roman Catholic priest, that shall succeed me in this said place, to be entailed to him and to his successors, in trust, and so left by him who shall succeed me, to his successors, and so in trust, for the use herein mentioned, in succession, for ever ; and that the said priest, for the time being, shall strictly and faithfully say four masses each and every year, for ever, viz. : one for the soul of the Rev. Theodorus Browers, on the day of his death, in each and every year, for ever, and three others the following days in each year as aforesaid, at the request of the Rev. Theodorus Browers ; and further, it is my will, that the priest, for the time being, shall transmit the land so left him in trust as aforesaid, to his successor, clear of all encumbrances as aforesaid; and I nominate, constitute and appoint Christian Reffner, and Henry Coons, executors to this my last will and testament, this twenty-fourth day of October, in the year of our Lord, one thousand seven hundred and ninety." After the death of the testator, the congregation (under the im- pression that a devise to an officiating priest, and his successors, not being a corporation sole, was against the policy of the law, and void as tending to a perpetuity, and therefore the legal title would escheat to the Commonwealth), applied to the legislature to make a provision, by which the intention of the testator should be carried into effect; which produced the Act of the 7th March 1821, vesting the title in several trustees of the congregation, and their successors; who leased the same to George Aaron, who is the defendant in this suit. In the Circuit Court, according to the opinion of the judge who tried the cause, the jury found a verdict for the defendant. The plaintiff, by his attorneys, Alexander W. Foster, John B. AL>j-at! "Am. sci. fa. to revive judgment in the Court John Creigh, Esq. J of Common Pleas of Cumberland county, 6th June 1822. The defendant appears to this am. sci. fa. and con- fesses judgment thereon to the plaintiff, deducting the following payments, to wit: two hundred dollars, March 7th 1818; one hun- dred dollars, 1st August 1818 ; one hundred dollars, 10th August 1818; two hundred dollars on the 28th April 1820, as per agree- ment filed. Entered 7th June 1822. Origl. 57, August Term, 1817. "Judgment." "Exit am. sci. fa. No. 20, August Term, 1827." 28th April 1827, Doctor Creigh signed the following agreement: Lyon & Webster 1 In the Court of Common Pleas of Cumberland v. > county. Am. sci. fa. to revive judgment, No. John Creigh, Esq. j 108, of August Term, 1822. 1 appear to the above am. sci. fa. and confess judgment thereon in favor of plain- tiff, as of this date. Witness my hand and seal, the 28th day of April, A. D. 1827. (Signed,) JOHN CREIGH, [SKAL."] The docket entry of the above is as follows, viz. : Lyon & Webster J No. 20 August Term, 1827. v. \ In the Court of Common Pleas of Cumberland John Creigh, Esq. J county, am. sci. fa. to revive judgment. The 1 p. & \v._5 66 SUPREME COURT [Chambersburg [Clippingcr r. Miller.] defendant by his agreement in writing, dated 28th April 1827, appears to the above am. sci. fa. and confesses judgment to the plaintiff. (Agreement filed as narr.) Entered 30th April 1827. Origl. 108. August Term, 1822. "Judgment." At the time of the entry of the judgments in favor of Lyon & Webster v. John Creigh, Jr. and John Creigh, Sr., on the 22d Sep- tember 1804, John Creigh, Jr. and John Creigh, Sr., each had real estate amply sufficient to pay the judgment, which estates were then unencumbered. John Creigh, Jr., yet holds the same estate he held on the 22d September, 1804, the time Lyon & Webster's judgment was entered, and John Creigh. Sr., held his until his death, and on the 1st of May, 1817, John Creigh, Jr., was residing in his own house, in Landisburg, and the estate which he owned at that time, which now lies in Cumberland county, was occupied and possessed by tenants. In 1814, Doctor John Creigh and Andrew Mateer purchased a tract of land in Silver Spring township, Cumberland county, for something above 312,000, containing two hundred and thirty acres, more or less, which they held as tenants in common, until March 1828, when it was sold by Sheriff Clippinger, as hereinafter stated. Between 1812 and 1814, Doctor John Creigh became entitled as one of the heirs of John Creigh, Esq., deceased, to the one-fifth of a house and lot in Carlisle; one-fifth of a piece of land in South Middleton township, containing ninety-two acres, about two miles from Carlisle ; the one-fifth of another piece of land, about one mile from Carlisle; and the one-fifth of an out-lot of five acres, which he held until sold last year by Sheriff Clippinger, as herein- after stated. Between the years 1800 and 1815, Doctor John Creigh acquired the following property in that part of Cumberland county which now composes the county of Perry, to wit: a lot of ground in Landisburg, with a log house on it; a brick house and lot of ground in Landisburg; one-fifth of a tract of land, containing about three hundred and seventy acres, in Tyrone township, all of which he yet holds, though encumbered by judgments against him in Perry county, to more than their value, which judgments were entered since the 16th September 1823, the time of the judgment in favor of the Commonwealth for use, &c., v. Andrew Mateer, John Creigh and Henry Quigley. 10th September 1823, judgment was entered against Andrew Mateer, John Creigh and Henry Quigley, in the Common Pleas of Cumberland county, at the suit of the Commonwealth of Pennsyl- vania, for the penalty of a bond given by defendants to the Com- monwealth, by direction of the Court of Common Pleas of Cumber- land county, to secure the repayments of moneys received by A. Mateer and John Creigh, as admistrators pendentc lite of John Huston, deceased. Oct. 1829.] OF PENNSYLVANIA. 67 [Clippinger . Miller.] A scire facias issued on this judgment, in favor of Huston's executors, on the llth April 1827, a verdict was given in the Cir- cuit Court of Cumberland county, against A. Mateer, John Creigh and Henry Quigley, executors, for $15,600. On this scire facias, and on the 3d of November 1827, judgment was rendered on said verdict by the Supreme Court, against John Creigh and Andrew Mateer, generally, and with leave to take out execution against the lands of Henry Quigley, which were bound by the judgment entered on the 16th September 1823. On 21st March 1828, John Clippinger, Esq., sheriff of Cum- berland county, sold the following property on a venditioni ex- ponas issued out of the Circuit Court of said county, at the suit of Huston's Executors v. John Creigh and Andrew Mateer, No. 2, of March term 1828, viz. : A tract of land in Silver Spring township, Cumberland county, containing two hundred and thirty acres, sold as the property of John Creigh and Andrew Mateer to William Ramsey, Esq., for $4000. A tract of land, containing one hundred and twenty acres, sold as the property of Andrew Mateer to William Ramsey, Esq., for $2000. A tract of land, containing nineteen acres, with a forge seat, sold as the property of A. Mateer to William Ramsey, Esq., for $1000. A tract of land, containing two hundred and fifty-four acres, sold as the pro- perty of A. Mateer to William Ramsey, Esq., for $350. A lot of ground, sold as the property of A. Mateer to William Ramsey, Esq., for $70. Two lots of ground, sold as the property of A. Mateer to William Ramsey, Esq., for $100. A lot of ground, sold as the property of A. Mateer to William Ramsey, Esq., for $50. The one-fifth part of a house and lot in Carlisle, sold as the pro- perty of Dr. John Creigh to John D. Creigh, Esq., for $350. The one-fifth part of fifty acres of land within a mile of Carlisle, sold as the property of Dr. John Creigh to John D. Creigh, Esq., for $151. The one-fifth part of a five acre lot, sold as the pro- perty of Dr. John Creigh to John D. Creigli, Esq., for $30. If upon the within and foregoing statement of facts, the court shall be of opinion that Huston's executors, or those claiming under them, are entitled to receive the proceeds of the sales made by Sheriff Clippinger of Dr. Creigh's interest in the properties men- tioned, to the exclusion of Lyon & Webster, or those claiming under them, then judgment is to be entered for the defendant. But if the court should be of opinion that the judgment in favor of Lyon & Webster is entitled to a preference, and that the balance due thereon should be paid out of the moneys arising from the sales of Dr. Creigh's interests in said properties so as aforesaid, made by Sheriff* Clippinger, then judgment is to be entered in favor of the plaintiff, for $401.23, with interest from the 30th September 1828 ; being the balance due on Lyon & Webster's judgment, after deducting $350 paid by Sheriff Clippinger, in 68 SUPREME COURT [Chambenbwrg [Clippinger v. Miller.] April 1828, out of the moneys arising from the sales made of Dr. Creigh's property to John D. Creigh, Esq., as within stated. After argument, the Court of Common Pleas (Reed, president), gave judgment for the plaintiff, which was assigned for error in this court. Watts, for plaintiff in error. Three propositions which arise out of the facts in this case, are contended for by the plaintiff in error : 1st. That the revival of a judgment by an amicable scire facias p. a. et d. does not create a lien upon the property of the defend- ant, acquired after the original judgment was entered. 2d. That no scire facias either creates or continues a lien upon land, unless the terre-tenants or persons occupying the lands, are made parties to the same, or have the writ served upon them. 3d. If the plaintiffs are entitled to the moneys now in dispute, Huston's administrators are entitled to an assignment of their judgment, which is a lien upon lands, which the judgment of Huston's administrators is not. In order to understand the consequences and effects of a judgment upon a writ of scire facias, it is necessary to know what it contains, and what it demands. It contains a recital, that a judgment had been obtained at a certain term, which yet remains unsatisfied, and demands that the defendant shall appear and show cause why execution should not issue ; the judgment can be for nothing but what the writ demands ; it is " the sentence of the law, pronounced by the court upon matters contained in the record." It does not partake of the nature of an original action, in regard to the exten- sion of the lien of the original judgment. When money is loaned by one man to another, and the lender takes a judgment for the amount, he does it upon the faith of the property which the bor- rower has at the time ; and policy does not require that the security should be increased. Although it has been said by our judges, that a scire facias partakes of the nature of an original action, for certain purposes ; yet if a judgment upon it embraces in its lien land not originally bound, there is no particular in which it differs at all. In the case of Colhoun v. Snider, 6 Binn. 135, Ycatcs, Justice, speaking of judgment, says, "The lien attaches at the moment of entry, and I can have no idea of its shutting at one period and opening at another, so as to embrace, of itself merely, property not originally bound. Its effects are immediate, and must be known and ascertained, when the judgment is given, and cannot depend upon subsequent events, unless it has been so provided by positive law." And in the case of Fries v. Watson, 5 S. & 11. 2'20, Chief Justice Tilghman says, " I know that in strictness a scire facias is not an action, but a demand of execution ;" and when speaking of its object, he says it is " the obtaining the fruits of the Oct. 1829.] OF PENNSYLVANIA. 69 [Clippinger v. Miller.] original judgment." " The effects of a scire facias is to enforce a lien." Morton v. Croghan, 20 Johns. R. 106 ; 7 S. & R. 328 ; 1 Peters 446-9. The third section of the Act of 4th April 1798, seems to be con- clusive of this point. It is alone by the authority of this act that the lien of a judgment can be continued ; and it provides that the scire facias shall be served upon " the terre-tenants or persons occu- pying the real estate bound by the judgment and on the defend- ant." The whole act provides for the continuance of a lien upon land already bound; the legislature never seeming to contemplate that any other than the land originally bound should be embraced within the operation of the writ of scire facias. The Act of Assembly provides that " all such writs of scire facias shall be served on the terre-tenants or persons occupying the real estate bound by the judgment, and also where he or they can be found on the defendant or defendants." In this case it is expressly found that the lands, out of which the money now in dispute was made, was in the possession of tenants, and that the writs of scire facias were not served upon them : 2 Saund. 7, n. 9, is the author- ity cited in the case of Chahoon v. Ilollenbach, for the position that occupiers are not terre-tenants. In England I admit it is so ; but our Act of Assembly is in its terms positive ; and if those terms be disregarded, the proceeding is ineffectual. Huston's administrators and Lyon and Webster are both cred- itors of John Creigh ; we have but one fund out of which our debt can be paid ; they have two, and ask, in this suit, to take the only fund which can be appropriated to the payment of our debt. If the first two points should be against us, the court will direct their judgment to be assigned to us, that we may be enabled to collect our debt out of the fund upon which we have now no lien. Lyon and Carothers for defendant in error. The lien of a judg- ment obtained upon a scire facias post annum et diem, is not lim- ited to the land bound by the original judgment. To authorize such a limitation of the lien, the scire facias must be special, praying execution only of those particular lands, as in scire facias on a mortgage ; or the judgment of the court must be specially so entered. Where that is not the case, the judgment entered must be considered a new general judgment, with all the incidents and qualities of a judgment obtained in action of debt on a bond. A defendant may plead to a scire facias, and make as full defence as he could upon a summons ; it has therefore been considered an action in law; and in a late case, Allen t. Reesor, 16 S. & R. 14, the court decided that a scire facias on recognisance in the Orphans' Court was sustainable as being substantially an action of debt. There is nothing in the opinion of Judge Yeates, in 6 Binn. 135, that militates against the doctrine contended for by the ulaintiffs. 70 SUPREME COURT [Chambersburg [Clippinger v. Miller.] We admit that a judgment cannot shut at one period and open at another so as to embrace of itself merely property not originally bound; but we contend that through the medium of an amicable suit of scire facias founded on the original judgment, and a new judgment entered on that in 1817, the plaintiff obtained a lien, which did embrace all the land which the defendant had at that time. It can- not be pretended that a fi. fa. partakes at all of the nature of an action; nor can it be denied that the object of a testatum Ji. fa. is to obtain the points of the judgment on which it issued ; yet by these writs a plaintiff may acquire a lien on land not bound by the original judgments: Cowden v. Brady, 8 S. & R. 505. There would be no principle of law violated, or rule of equity abridged, by attach- ing to a judgment on a scire facias all the consequences of a judg- ment upon an original action. On the contrary, such a decision would be in exact accordance with the spirit and letter of our Acts of Assembly, which direct that "judgments shall bind the real estate of defendants from their dates," and that "all the goods and chat- tels, lands and tenements of debtors, shall be subject to execution." The doctrine contended for by the plaintiff in error is not only con- trary to every sound rule of construction, but it is subversive of the universal practice of our courts ; such a doctrine would involve sheriffs in inextricable difficulties in the distribution of the proceeds of real estates of defendants when different properties of the same defendant are sold. . On the second point it need only be remarked that in the case of Chahoon v. Hollenbach, 16 S. & R. 432, the third section of the Act of the 4th April 1798, limiting the lien of judgments, was fairly before the court, and by the decision made in that case, a construction has been given to that section which is at once safe and convenient, and in perfect accordance with the invariable prac- tice and understanding of the profession. If the letter of the act were to be complied with, according to the common understanding of the word "occupants," every sub-tenant from year to year, or at suffrance, of every room in the house or cabin on the land, must be summoned. The defendant, and those holding the fee under him, are the only persons whose rights could be affected by the want of notice ; and they alone, says Chief Justice Gibson, are entitled to notice. On the third point it need only be remarked that the principles of substitution contended for by the plaintiff in error, cannot apply to this case. If there were no other creditors of Dr. Creigh but the parties to this cause, the rule would apply ; but there are other creditors who are not parties to this issue, and who would be affected by such substitution. If the creditors in both counties have the same equity, the law must decide between them. Ramsay, in reply. The scire facias of 1817 specifies no sum, and Oct. 1829.] OF PENNSYLVANIA. 71 [Clippinger v. Miller.] the scire facias of 1822, is to revive the judgment of 1817, and mentions no sum to be due by the defendant to the plaintiffs. If, therefore, it should be contended that the irregular judgment of 1817, was of itself a good judgment, without relation to the judg- ment of 1804, but is in the nature of an original action, it is void for uncertainty, and the court cannot tell how much was recovered in that suit by the record itself. And if it is a scire facias to re- vive the judgment of 1804, and continue its lien, it cannot embrace subsequently acquired property : Philadelphia Bank v. Craft, 16 S. & 11. 348. The opinion of the court was delivered by ROGERS, J. Two questions arise in the case stated. First, whether the revival of a judgment, by amicable scire facias post annum et diem, creates a lien upon the property of the defendant, acquired after the original judgment. And secondly, whether a scire facias continues the lien upon the land, the terre-tenants not having been made parties, no writ hav- ing been served upon them. The first question has been virtually decided in Berryhill v. Wells, 5 Binn. 56, and in Fries v. Watson, 5 S. & R. 220. In some re- spects we have departed from the English law, and the difference has arisen from the construction of an Act of Assembly, making interest an incident to a judgment. The cases referred to, go on the ground that a judgment on the scire facias is not a mere revival of the original judgment, but partakes of the nature of a new judg- ment, and the court assimilates it to the case of a judgment rendered in an action of debt on the original judgment. We cannot perceive any good reason why a difference in the remedies should make any difference in the right. If the plaintiff had brought an action of debt instead of a scire facias, the land would have been bound. And we believe a judgment on the scire facias places the plaintiff on precisely the same footing. In strictness, it is true, a scire fa- cias is not an action, but the object of the two remedies^s the same; the obtaining the fruits of the original judgment. It is in the nature of an original action ; and to say that as to the recovery of inter- est, it should be considered as a judgment in an original action, but not so in other respects, would be introducing a distinction, attended, as far as we can perceive, with no beneficial results. By tenants is meant the owners of the feo simple, and by occu- piers, those who come in under them : 2 Saund. 7, n. 0. And in this sense, the terms arc used in the third section of the Act of 17!>8. When the tenant in fee is known, and within reach of the process of the court, the legislature intended he should have notice : on him the scire facias should be served, for he, and he only, is entitled to notice, who will be prejudiced by the judgment. The Act of Assem- bly is in the alternative. The scire facias must be served on the 72 SUPREME COURT [Ckamberdwrg [Clippinger v. Miller.] tcrre- tenants or occupiers of the land ; by which expressions, I do not understand the legislature to mean that terre-tenants and occu- piers are one and the same, but as intending to provide for the ser- vice of notice on the persons occupying the land, where the owner of the fee simple is unknown, or not within reach of the process of the court. The tenants do not make any complaint of want of no- tice; if their right were affected they would be entitled to a hear- ing ; but the judgment would cease to be a lien only so far as their interest was concerned. A contrary exposition of this act would be attended with great inconvenience ; for if you were obliged to serve notice, at the risk of losing your lien, on all the occupiers of land bound by a judgment (which is a general lien on all the real property a man possesses), it would be extremely troublesome and very expensive. And in accordance with this opinion, has been the universal understanding. It has not been considered necessary, where there has been no transfer of the property by the defendant, to bring in any person but the defendant himself. When there has been an alienation or sale of the property, it is right that the party to be affected should have an opportunity of making defence, pro interesse uo, for preventing the risk and inconvenience to pur- chasers of real estate, seems to have been the principal object of the Act of the 4th April 1798. I cannot perceive any similarity between this case and the case of the Philadelphia Bank v. Craft, 16 S. & R. 348. There it was contended that it was a final judgment, without any sum being as- certained, either directly or by reference. We did not mean to in- terfere with judgments which referred to a sum ascertained and fixed. By applying the maxim, id cerium est, quod cerium rcddi potcst, there is no difficulty in ascertaining the amount found in the judgment on the scire facias. The application to the court to be substituted, &c., we think premature, as the persons to be affected by it are no parties to this proceeding. Judgment affirmed. Referred to, 2 W. 379; 4 W. 206 ; 3 W. & S. 471 , Bright. Rep. 452; 1 Barr 104 ; 7 Id. 66, 67 ; 10 Id. 383 ; 1 Smith 211,212; 13 Id. 232 ; 8 Phila. 99 Oct. 1829.] OF PENNSYLVANIA. 73 Gardner against Lefevre. A writ of error will not lie upon an order of the Court of Common Pleas overruling a motion to strike off an appeal and setting aside an execution, supposed to have been improvidently issued. ERROR to the Court of Common Pleas of Adams county. A motion was made to quash the writ. It appeared from the record that an action of replevin had been brought by Jacob Lefevre, as administrator of Rachael Espy, for goods of the intestate, alleged to be in the hands of the defendant. A rule of reference was en- tered by the defendant, under the Compulsory Arbitration Law, and after hearing, a report was made in favor of the defendant. He filed his bill of costs, and gave notice to the plaintiff that he would not consent to an appeal without the payment of his costs. An appeal was entered by the plaintiff's attorney, without such pay- ment ; and after the twenty days had elapsed, an execution was issued against the plaintiff' de bouts propriis, for the costs, return- able to April term 1829. A rule was entered at the instance of plaintiff to show cause why the execution should not be set aside ; and a motion was also made on behalf of the defendant to strike off the appeal, on the ground that the cause of action was in the plaintiff not as administrator, but in his own right. Upon hearing both motions, the court set aside the execution, and refused to strike off the appeal. To this decree of the court the present writ of error was taken. Miller, for the defendant in error, contended that this writ could not be sustained, because there was no final judgment of the court below, and that the cause was still pending and undetermined in the Common Pleas. Stevens, for the plaintiff in error, maintained that the entry of the appeal was a nullity ; that the action was personal, and could only be sustained in the name of the plaintiff in his own right, and the addition of administrator was mere surplusage ; that an oath, recognisance and payment of costs, were necessary pre-requisites tc the entry of an appeal, and they having been dispensed with after notice, the mere act of entering an appeal by plaintiff's attorney is a nullity, and may be disregarded. BY THE COURT. The cause is still pending in the Court of Com- mon Pleas. There is no final judgment : the writ of error must, therefore, be quashed. 74 SUPREME COURT \_Chamlerslurg Elliott against Sanderson. IN ERROR. A writ of error will not lie to remove a judgment in the Circuit Court, to tho Supreme Court, in any case in which the party might have had a remedy by appeal. THIS record was brought up on a writ of error to the Circuit Court of Cumberland county, where it was a suit brought by the defendant in error, Sanderson, against the plaintiff in error, Elliott, and in which a verdict was rendered for the plaintiff below ; the defendant filed reasons for a new trial, and made a motion in arrest of judgment, which were overruled by the judge who tried the cause, and judgment was entered ; whereupon the defendant ap- pealed, in pursuance of the Act of Assembly ; but the appeal not having been entered upon the records of the Supreme Court, until after the return-day for the district, it was quashed. The defendant then sued out this writ of error, which Carothers, for defendant in error, moved to quash, on the ground that a writ of error will not lie to the Circuit Court in any case where the party might have had a remedy by appeal. Penrose, for plaintiff in error. The error which it is alleged is contained in this record, does not consist in anything which occurred upon the trial in the Circuit Court, but other errors manifest upon the face of the record. Carothers, in reply. The error now alleged would have been a good reason in arrest of judgment, which motion was made and overruled, and the defendant appealed. Writ of error quashed. Chambers against Mifflin. IN ERROR. A precisely-descriptive warrant must be followed up with reasonable atten- tion, in order to give title from its date. So of a vague warrant from the time of Hurvey. If an owner of a vague or removed warrant has suffered it to remain un- returnf-d for more than twenty-one years, and during that time has exercised no act of ownership u|>on the land, the state or any person has a right to consider it as derelict, and whoever purchases and pays for the hand, under such circumstances, has a good title. Qntrre. Whether the law is not the same in some cases, as to precisely- descriptive warrant*. 1 THIS was a writ of error to the Common Pleas of Franklin county, to remove the record and judgment of that court, in an action of 1 See Steinmetz r. Logan, 5 W. 518; Emery v. Spencer, 11 II. 271; McGowen c. Ahl, 3 Smith P* Oct.. 1829.] OF PENNSYLVANIA. 75 [Chambers v. Mifflin.] ejectment Drought by Jonathan Mifflin, the defendant in error, against Thomas Chambers, the plaintiff in error. In the court below the verdict and judgment were for the plaintiff, Mifflin. The claims of the respective parties were as follows : The title of the defendant in error and plaintiff below, Jonathan Mifflin, origi- nated upon a warrant granted to Robert Long, dated 15th April 1763, for two hundred acres in Black's Gap, in the South mountain, including some springs, supposed to be the headwaters of the Corio- cocheague creek, in Cumberland county. It was not conceded by the defendant below that a survey had ever been made on this warrant, but it appeared in evidence, that in 1776 and afterwards, applications were entered calling for lands adjoining Robert Long, and in 1792, a warrant, in which it was alleged Captain Benjamin Chambers had an interest, was taken out, calling for Robert Long. No survey was returned on this Robert Long warrant, until April 1797, and so far as could be ascertained, no draft of any survey had been in the office of the deputy-surveyor of the county. Robert Long conveyed to Jonathan Mifflin, by deed dated 20th July 1796, and he obtained a patent from the Commonwealth, 14th February 1812. The plaintiff in error. Thomas Chambers, claimed under a war- rant to George Chambers, dated 29th December 1792, for two hun- dred acres, at the Shippensburg fork of Conococheague creek, on both sides of the great road from Chambersburg to York. On the 5th of April 1793, a survey was made on this warrant, and returned soon after. Some proof was given that at the time this survey was made, the father of the plaintiff in error knew of the survey of Robert Long. There was a regular chain of title from the war- rantee to the plaintiff in error, Thomas Chambers. On the 19th July 1796, Long and Mifflin exhibited to the board of property, a draft of a survey of this land, and their warrant, and the board granted them an order of re-survey, and directed the 'deputy-surveyor to make a return, noting the interference, if any, with any other claim. After this, to wit, 12th April 1797, a draft of a survey on Robert Long's warrant, dated 4th April , and signed for John Armstrong, by William Lyon, was taken to the sur- veyor-general's office, and was accepted by the surveyor-general, and filed. Soon after this, a copy of the order of the board of property, before mentioned, was sent to the deputy-surveyor of the county, included in which was a copy of this draft by William Lyon. John Armstrong had not been deputy-surveyor since 1776. No- thing was done in pursuance of this order of the board of property. No actual improvement was made upon the land until about the year 1808. This suit was brought in 1825. Several errors were assigned in this court to the charge of the court below to the jury. Those that are material to the decision made by this court, are as follows : The court erred in saying "that if Benjamin Chambers had 7G SUPREME COURT [Chamberslwrg [Chambers v. Mifflin.] notice of the survey on Long's warrant, the delay of the deputy- surveyor to return the survey, will not affect the plaintiff's title, whether that delay proceeded from neglect of the officer, or the omission to pay the fees. In not directing the jury, as requested, that Long was guilty of negligence in not causing the survey to be returned, and that such omission was calculated to mislead and impose on purchasers from the Commonwealth. In not directing the jury, as requested, that if Long withheld his survey from the office, for the purpose of keeping it open for change, it would have no validity against a person knowing it, until after the return and acceptance. In not instructing the jury that they might presume that Long had abandoned his survey as made. Crawford, for the plaintiff in error. A warrantee, after he nas procured his warrant, has certain duties to perform ; he must pro- vide chain-carriers and provisions, and he must pay the fees of the deputy-surveyor, to entitle him to have his survey returned ; and if any of these duties are omitted, by reason of which his warrant is not duly executed, and his survey returned, such omission will affect his title ; and the court erred in laying down the law differ- ently to the jury : Fisher v. Larick et al., 3 S. & R. 321 ; Boyles v. Kelly, 10 Id. 217 ; Lessee of Lauman v. Thomas, 4 Binn. 59. And in all these cases, the paying of the fees of the deputy-sur- veyor is treated as a matter of necessity. The direction of the court, that an abandonment could not be presumed, particularly as the plaintiff had his survey returned, and a patent issued upon it, was erroneous : Boyle v. Kelly, 10 S. & R. 217 ; Watson v. Gilday, 11 Id. 340. But it was calculated to mis- lead the jury ; for the survey of the plaintiff was not returned till 1797, three or four years after the defendant's survey was made and returned, and his patent did not issue for nineteen years after- wards. Dunlop, for defendant in error. The warrant to Robert Long is not a shifted warrant, but a vague one, calling for land in Black's Gap, and it is laid upon land as high up the waters called for in the description as it could be, without going out of the county of Cumberland. The difficulties of the cause are removed by the con- clusion that our warrant is a vague one : Moore v. Shaver, 6 S. & R. 130 ; Lilly v. Paschal, 2 Id. 294. Even if it was a shifted warrant, it is sufficiently proved that Captain Chambers had notice of the survey. The jury believed and found accordingly, either that the warrant was vague, or that Cap- tain Chambers had notice ; that he did know of Long's survey is certain, from the fact, that another survey of his called for Robert Long's survey on the south ; and although this warrant and Bur- Oct. 1829.] OF PENNSYLVANIA. 77 [Chambers v. Mifflin.] vey is in the name of Joseph Chambers, yet all the circumstances in the cause show that Captain Chambers was part owner of it. All the adjoining surveys made at the time called for Robert Long. The court charged the jury in favor of the defendant on this point, for they said that Captain Chambers must have had notice prior to the commencement of his title, to be affected by Long's title. McCulloch, on the same side. The request to the court to charge the jury, that the conduct of Long was calculated to mislead and impose on purchasers, was a question of fact and not of law, and therefore this court will not reverse the judgment, even if the court below were wrong in their opinion. The return of a survey is but notice to everybody of the appro- priation of the land included within that survey ; if, therefore, Cap- tain Chambers knew of Long's survey, this knowledge as to him, was tantamount to a return and acceptance. There is no such thing known in the history of the land titles of Pennsylvania, as gathered from our books, as the doctrine that a jury can presume the abandonment of a warrant upon which money has been paid. The doctrine of abandonment only applies to im- provement rights or locations, where no money has been paid ; and in those cases it may be presumed, because the giving up of posses- sion is giving up everything which the improver had ; but where money is paid, it cannot be presumed that it is abandoned. It has been decided in the case of Mitchell v. Mitchell, 4 Binn. 180, that when money has been paid on a warrant, the Commonwealth has no right to vacate that warrant. Chambers, in reply. The warrant of Robert Long was not in- tended for the land in dispute, but for land including the springs and head-waters of the Conococheague creek. A right founded upon a shifted warrant and survey is an imperfect right, until it is returned and accepted, for until then the warrantee might change his survey and lay it upon other lands ; or the proprietaries might refuse to accept it, having previously given no assent to the appro- priation of the particular lands surveyed. This imperfect right, therefore, which either party may change, until the survey is accepted, is such a right as may be abandoned. And the only difference between the presumption of an abandon- ment of an improvement or location, when little or no money is paid, and of a warrant where money is paid, is in the amount of evidence required to support the presumption in one case and the other. If Long had once abandoned the land, he never could renew his claim afterwards to the prejudice of another, who had taken out an office right. The extent of our request to the court was not to instruct the jury that there was an abandonment, but "that the jury may pre sume from the facts that there was an abandonment. ' 78 SUPREME COURT [Chambersburg [Chambers r. MifBin.] The opinion of the court was delivered by HUSTON, J. [Ilerehis honor recapitulated the facts in the cause.] In the argument of his case here, and I may suppose in the court below, all the cases on precise, vague and removed warrants were cited. See McKinney v. Ilouser, 2 Sm. L. 190 ; Duncan v. Curry, 3 Binn. 14, and Lauman v. Thomas, 4 Id. 58. See also 3 S. & R. 321-2; 10 Id. 17; Maus v. Montgomery, 15 Id. 224. And if this suit had been brought forty years ago, or if the title of defendant below had commenced within a few years after the plaintiff's, there would have been no error perhaps in the charge. By recurring to those cases in which this matter has been discussed, it will appear, that in Lauman v. Thomas, the plaintiff's warrants were dated 27th of April 1774, surveyed in May 1774, when re- turned was uncertain ; but certainly before the 12th January 1792, when a patent issued. The defendant's title commenced in De- cember 1774, and his patent in 1776. In 3 S. & R. 321, one title was the 3d of April 1769, surveyed in 1772, the other a warrant in 1772. In Duncan r. Curry, both titles were dated 3d April 1769, one surveyed in 1771, the other in 1774, and not returned until after 1795, and was clearly postponed. In short, all those cases presented something very different from the present. There was at one time but little difference in the titles, and in most of them some possession or ownership was alleged to supply the want of return. While the country was unsettled, a wilderness, a few years did not give much strength to a title. The war and desolation along the frontiers, on account of Indian depredations, delayed the settle- ment and occasioned allowances for not pursuing titles; rules laid down in 1772 I were again adopted as applicable after the war, in 1785-7, and following years. Though it was most palpable that the reason for indulging a person in not getting a survey returned in 1774 or '5 was no reason at all for indulging him after 1790. The deputy-surveyors, before the war, had died, had removed, or were superannuated. Their papers were scattered, some of them displeased at not being in office, and their refusal to return surveys was some excuse. Since the war their bonds could have been sued or the board of property would have compelled them to have re- turned surveys. The doctrine of our courts has not been well understood, for when it is said, a precisely descriptive warrant gives title from its date, a vague one from the time of survey, &c., it is sometimes added and always understood, provided it is otherwise followed up with reasonable attention. It is not, and never was the law that on taking out a warrant, and procuring a survey, and then neglect- ing or refusing to pay the surveyor's fees, which was always neces- sary to procure a return, that a man could hold the land, without attending to it in any way, for an indefinite length of time. Oct. 1829.] OF PENNSYLVANIA. 79 [Chambers v. Mifflin.J Although a warrant has been surveyed, yet if not returned, the owner may change its lines, or change its place altogether, and lay it on any other vacant land anywhere near ; until it is returned, the state has no power to collect arrears of purchase-money. It never can be that a man can wait thirty or forty years, and all that time be able to say, this is my land, if I please, and not mine unless I please. I will take this land and pay the state for it if the country improves, and it rises in value, or if somebody will render it valua- ble by improvement ; but I will not take it and pay the purchase- money, unless something occurs to render it more valuable. Nor is it the law, that a man can commence procuring a title from the state, and, from pure negligence, leave it in such a situation, for more than twenty years, as that he is not bound to take it, and no one else can safely take it. We have full arid ample provision on this subject by our legislature. The Act of the 9th of April 1781, for establishing a land office, provides, in section nine, that all sur- veys heretofore made shall be returned into the surveyor-general's office within nine months, and prescribes a penalty on any deputy- surveyor, to whom his fees shall be paid, who neglects to return. This continued till 5th April 1782, when it was enacted, " It shall be lawful for the surveyor-general of this state to receive returns of such surveys, as shall appear to him to have been faithfully and regularly made, from the said late deputy-surveyors, their heirs or legal representatives, for such further period as to him shall seem just and reasonable." And a saving for those who had neglected to pay fees and procure returns under the last cited act. The Act of 8th April 1785, section eight, prescribes that every deputy-sur- veyor shall, as soon as conveniently may be after survey made, on receiving his fees, return said survey into the surveyor-general's office ; and that every survey made before the 31st December, in each year, and not returned before the last of March in next year, shall be void as to future surveys, which shall be returned sooner, and a penalty on the deputy-surveyor, if the neglect is by his fault. Although this act has been supposed to be only applicable to lands in the purchase of 1784, and cast of the Allegheny river, yet it is important, as showing the sense of the legislature on the necessity of a return of survey in due time, and the evils incident on neglect in this particular. Then came the Act of 4th September 1703, which provides that "All returns of surveys which have been actu- ally executed since the 4th July 1770, by deputy-surveyors, while they acted under legal appointments, shall be received in the Land Office, although the said deputy-surveyors may happen not to be in office at the time of the return or returns being made : provided that no returns be admitted that were made by deputy-surveyors, who have been more than nine years out of office." This short law is in some respects obscure when closely examined, but it further shows strongly the sense of the legislature on the subject of keeping 80 SUPREME COURT \_Chambersburg [Chambers r. Mifflin.] titles in this uncertain and unfinished state. It lays down a rule wnich is not easily to be gotten over by the courts. Independent of this law, who will say that the Act of 1782, which allows returns to be received till such period as the surveyor-general shall deem just and reasonable, would keep the office open for ever. I am aware that there are cases where plaintiffs have recovered on surveys not returned until since 1793. They will, however, be found very special cases, where the owner has proved great exer- tions on his part to procure returns, and fraud or accident in pre- venting them. I am also aware that the owners of many tracts, who have taken possession and occupied them, sold them to others who occupied them, or transmitted them to their descendants, have found no returns in the office. In such cases the land officers issue orders and have returns made yet, and rightly, for no injury is done to any one. So if land has been surveyed, and no adverse claimant, as improver, or by warrant, has any claim to the land, returns are received, and may be received, from the present deputy-surveyors ; but where, as in the present case, a vague or removed warrant has been surveyed, and then neglected thirty years, or even a less time, and no excuse shown, it was not within a "just and reasonable time," to receive the return, after another had bought and paid for it, as derelict. In another point of view, the title of the plaintiff below was irregular. He and Long applied to the board of pro- perty, who, instead of accepting his draft, made out and signed by William Lyon for John Armstrong, ordered a re-survey by the deputy-surveyor of the county, who was not to make a return to the surveyor-general, but to that board, noting the interference, if any, with other claims. After this, the draft made out by William Lyon for John Armstrong, was carried to the office of the surveyor- general, and by him accepted and filed, as a return of survey. It was entirely irregular in him so to receive and file this return. The matter was not before him ; it was sub-judice ; a very proper order had been made, and it is certain the board thought it not of course to accept a return of this survey ; that whether it could be accepted depended on facts to be ascertained, and the surveyor-general had no right to take the matter out of their hands. In Harris's Lessee v. Monks, 2 S. & R. 557, it was decided that an act of the surveyor- general, respecting a return of survey in a case before the board of property, and respecting which they had made an order, was totally void. It is true, that was a case in which a caveat had been entered, but the principle, that after a matter was before the board, and after they had taken order on it, it was illegal in the surveyor-general to do any act inconsistent with or superseding their order, is correct, and applies to this case. William Lyon had no right to return a survey, even while John Armstrong was in office. I have no hesitation in saying that he did not make the paper in question for the purpose of being carried Oct. 1829.] OF PENNSYLVANIA. 81 [Chambers v. Mifflin.] to the land office as a return, but for the private use of the owner. There have been cases where a return by an assistant or deputy- surveyor, has been received and filed in the surveyor-general's office, as a return. I will not say such return so filed is void, but it was always an irregularity, and is particularly objectionable here, independent of other reasons. The Act of 1793, last cited, does, it is true, mention surveys made since 1776, and this was made long before. I would not infer from this, that surveys made before, might still be accepted. I rather suppose such surveys were considered as out of all reasonable time, and that it alluded to surveys under the Act of 1785. The patent does not alter the case. In this state the inquiry in an ejectment is not who has the patent, but who ought to have it. On the whole, we are of opinion, that under the Acts of Assembly, under the principles on which all Acts of Limitations are made, the return of survey ought not to have been accepted, so far as it inter- fered with the survey of the defendant. That although a survey before the war may yet be accepted, where possession has accom- panied it, or perhaps where there is no adverse claim to the land ; yet the peace and quiet of the community require, that where any owner of a vague, removed, or perhaps in some cases, a precise warrant, has suffered it to remain unreturned for more than twenty- one years ; has kept it in his power to return it as laid, or change it, to pay residue of purchase-money, or not to pay it ; has exer- cised no act of ownership ; has not claimed it, or returned it for taxation ; the state and the citizens had a right to consider it as derelict, and whoever, under such circumstances, purchased and paid for it, has a good title. There must be an end to these half titles some time. It cannot be at the option of an individual, for half a century, whether he will take a tract of land, or not take it; at all events, his option is at an end, when another person acquires a right to it. Judgment reversed, and a venire facias de novo awarded. Referred to, 5 W. 222-, 8 W. 119 ; 1 Jones 113 : 11 Smith 454. Commented on, 12 II. 279. Commented on and distinguished, 4 W. & S. 76, 77. Distinguished. 4 W. 443 ; 8 W. 98. Followed, infra, 459; 2 P. & W. 395 ; 5 W. 525; 1 W. & S. 173 ; 11 H. 277 ; 3 Smith 89. 1 p. & w._6 82 SUPREME COURT [Chamberdwg Russell against The Commonwealth. IN F.KKOR. A writ of error will not lie to the opinion of the Court of Common Pleas discharging a person, on a writ of habeas corpus, from servitude. THIS was a writ of error to Bedford county, to remove the record and proceedings upon a habeas corpus which issued to James M. Russell, Esq., for the body of Charity Brogden. Charity Brogden, the negro woman who claims her freedom, was a slave for life in Maryland, and was there sold at public sale, by the sheriff, on an execution against her master. Mr. Russell, the respondent, who was the surety of the master for the debt for which the said slave was sold, became a bidder, and purchased the slave in due form, according to the laws of Maryland. A deed of manumission was executed by Mr. Russell to Charity, on consideration of her serving him for a certain term of years. An indenture was then executed and acknowledged before the proper officer in Maryland, dated 16th October 1821, between Mr. Russell and Charity, by which she voluntarily binds herself to serve said Russell, his heirs, &c., in the state of Pennsylvania, for the term of ten years, from 15th October 1821. Mr. Russell covenants to find her sufficient meat, drink, clothing, washing and lodging, &c., and one dollar when free, &c. Previous to the dispute, Mr. Russell remitted on the indenture the last three years of servitude. At the time the deed and indenture were executed, Charity was forty years of age, and at the time the writ of habeas corpus issued in this case, she was forty-five years of age. Upon the single fact of the age of Charity being forty-five years when the writ issued, the Court of Common Pleas (Tod, president), discharged the applicant, at the same time saying that they did not know what the opinion of the court would have been, if Charity had been but thirty years of age, or any period less than forty-five years. But their opinion is formed upon the facts as they are, and that to hold Charity under the circumstances, would be contrary to the spirit of the laws of Pennsylvania, for the gradual abolition of slavery. In this court, two points are made. 1st. Will a writ of error lie to remove the judgment of the Court of Common Picas, rendered upon a habeas corpus ? 2d. Was the court right in their opinion by which they dis- charged Charity from servitude ? McCulloch and Russell, for the plaintiff in error No appearance for defendant in error. Oct. 1829.] OF PENNSYLVANIA. 83 [Russell v. Commonwealth.] The cause was submitted without argument ; and the writ was quashed, on the ground that no writ of error will lie to remove a judgment upon a habeas corpus. Hege et al. against Hege et al. IN ERROR. A., leaving several children, devised to his son B. a tract of land, he paying $50 an acre therefor ; to his son 0. a tract of land, he paying $60 per acre therefor; the amount of money so payable to be equally distributed among all his children. B. took under his father's will, made several payments according to its direction, and died, leaving children ; his administrators having obtained from the Orphans' Court an order to sell his real estate for the payment of debts, sold the same subject to the payment of the balance of the money due under his father's will : Held, that the administrators sold and the purchaser took nothing but the land, and was not entitled to the interest which B. had in the land of his brother C. under his father's will. When C. came of age, he refused to take the land devised to him, and an agreement was entered into between the guardian of B.'s children and all the other children of A., that the land devised to C. should be sold, and the money equally divided between them ; the land, in pursuance thereof, having been sold by trustees appointed for the purpose, and the money in their hands, it was held that a suit would not lie against them in the names of the children of B. to recover their share, but must be brought in the name of B.'s administrators, there being debts of B.'s estate yet unpaid. WRIT of error to the Court of Common Pleas of Franklin county, in an action for money had and received, brought by the plaintiffs in error, Polly Hege, Susan Hege and Nancy Hege, by theii fuardian, Jacob Zent, against Peter Hege, Jacob Hege and 'hilip^Tritt, the defendants in error. The record exhibited the following facts ; Christian liege, the grandfather of the plaintiff', arid father of two of the defendants, was in his lifetime seised of two tracts of land, and died, having first made his last will and testament, the material part of which to this cause is as follows : "To my son Henry, I give and bequeath two hundred acres of land lying and situate on the north side of my mansion-house and property, the beginning to be on my east line, and run a westerly course, so as to be equally advantageous to both tracts, at present undivided ; this division, I will Jacob Hege, one of my sons and two discreet neighbors, to be chosen by Jacob Hege and Henry liege, to determine. This two hundred acres I value to Henry liege, at . r )0 per acre, payable in instalments of 300 in each year, for five years; after five years I will that he pay the sum of 400 yearly, until the whole be discharged: if Henry Hege refuses to comply with these terms, it is my will that my executors sell and convey the same land to the highest bidder, at a fair and public sale ; 84 SUPREME COURT [Chamberaburg [Hege r. liege.] if he complies, I will the above described land to him, his heirs and assigns, for ever. I will and bequeath to my son, Peter liege, two hundred and thirty-six acres and fifty-eight perches of land, and allowance, including my mansion-house, barn, buildings and appurtenances thereto belonging. This land lies situate on the south side of my property, which I value to him at $00 per acre, payable in instalments of $500 each year, for five years; then the instalments shall be six hundred each year until the amount is paid. My will is that Jacob Hege act as guardian for Peter Hege, until he is twenty-one, and grant the privilege of selling fifty or sixty acres of the above-described land, to be sold and conveyed by my executors. Jacob Hege shall choose out the part to be sold, where it will least injure the place. The above-described mansion tract, I will to Peter Hege, his heirs and assigns, forever, the amount being discharged." "I have made the foregoing valuation of my land, in order to leave my property as near equal as possible among my children." "Finally, I will that each of my children shall receive an equal share of my whole estate, of every description, except my smith tools, which I will to Henry and Peter Hege." The testator appointed Jacob Hege, Samuel Zent and Peter Hege to be his executors, of whom Jacob liege alone was the surviving and acting executor, when this suit was brought. This will was proved 20th May 1815. Henry liege, the devisee, took possession of the land devised to him, and made four of the payments directed by his father's will; and on the 16th July 1820, died intestate, leaving three children, who are the plaintiffs in this suit. Henry liege's administrator petitioned the Orphans' Court for an order to sell the land of his intestate, for the payment of debts, which was granted ; and the administrator sold and conveyed the same land which had been devised to Henry Hege by his father, to Samuel Diehl, on the 12th June 1821. On the Oth of March 1824, Henry Hege's administrators settled their account in the Orphans' Court, and there was found a balance in their favor of 123.75, after which, and before the bringing of this suit, they were discharged from their office of administrators by the court. When Peter Hege came of age, he did not elect to take the devise to him under Christian Hege, his father's will ; but on the 21st December 1822, the following agreement was made and executed by and between all the heirs and legatees of Christian Heg and the children of Henry liege, deceased, who are the plaintiffs in this suit by their guardian. " Whereas Christian liege, of the county of Franklin and state of Pennsylvania, by his last will and testament, did devise and bequeath unto his son Peter his mansion tract of land at a certain valuation, and did distribute the money arising from the sale Oct. 1829.] OF PENNSYLVANIA. 85 [liege . Hege.] amongst his children. Now be it known that it is mutually agreed by and between said Peter Hege of the one part, and his brothers and sisters, legatees aforesaid, of the other part, that his said lands so devised to said Peter should be sold for the best price that can be obtained for the same, and the money arising from said sale shall be equally, divided amongst the children of said Christian Hege, deceased, or their representatives, so that the said Peter, out of the whole real and personal estate of the said Christian Hege, shall receive an equal share with his brothers and sisters and no more. And it is further agreed that said Peter Hege, Jacob Hege and Philip Tritt, for themselves and the other legatees, do contract for the sale of the said tract of land to the purchaser, the said lega- tees getting their shares of the purchase-money, in satisfaction of what they would annually have been entitled to from Peter, under the said will, and will execute the necessary receipts and releases for the same to the said, purchaser. And whereas said Peter has been charged by his guardian, Jacob Hege, and his agent in col- lecting rents, making sale of part of the land, and making calcula- tion and settlement, $305, it is considered as reasonable that said Peter is not to be charged with the whole of said sum, but he is to be exclusively charged with one-third thereof, and the other two- thirds shall be taken off all the legatees, equally, in making the distribution." In pursuance of this agreement, in April 1824, Peter liege, Jacob Hege and Philip Tritt, sold the land mentioned, and received the purchase-money, which it was agreed should be considered in. their hands, for the purpose of trying the several questions which arose out of the facts. In this court two questions were presented for argument and decision. 1. Is not Samuel Diehl, who purchased the land of Henry Hege, deceased, from his administrators, entitled to all the interest which Henry liege had under the will of Christian Hege, deceased, and consequently to the money payable out of the land of Peter to Henry ? 2. Can this action be maintained in the names of the heirs of Henry liege ? Should it not have been brought by the adminis- trators ? Dunlop, for the plaintiffs in error. First. The only interest which Henry liege had under the will of his father, which affected the land devised to Peter, was a legacy charged upon it : there was no application to the Orphans' Court by the administrators of Henry to sell this interest ; that court granted an order for the sale of two hundred acres of land described by metes and bounds, which could not embrace a legacy falling due in successive years, 86 SUPREME COURT [liege v. Hege.] and payable out of another tract of land ; nor would that court have power to grant such an order. Second, the yearly payments to be made by Peter out of the land devised to him, were in the nature of an annuity, and go to the heir, and not to the administrator : 1 Rop. on Leg. 153 ; 2 Vernon 133; Toll. Law of Ex'rs 178. And although an-annuity is gener- ally chargeable upon the person of the grantor, yet it may be chargeable upon a real or personal fund : 1 Com. Dig. 622, tit. Annuity ; 1 Jac. Law Die. tit. Annuity ; Doc. & Stu. 90 ; 10 Mod. Rep. 237 ; 2 Ves. Sr. 17 ; 1 Brown Ch. 377 ; Rop. on Leg. 153. If a devisee refuses to take land charged with legacies, it descends to the heir, subject to the payment of those legacies ; and therefore Henry, the father of the plaintiffs, being an heir, upon the refusal of Peter to take, the fee and the charge being both vested in him, the charge would be merged in the inheritance: 8 Com. Dig. 311, tit. Merger. If lands are devised to A., and he cannot be found, they descend to the heir. So if land be devised to the executors to sell, before they qualify themselves to sell, the land goes to the heir : Allison v. Wilson, 13 S. & R. 330. The application of these legal principles to the facts of this case lead inevitably to the conclusion that the claim which the children of Henry had upon the land of Peter was a real interest which descended to them, and for which they alone could sue. In another point of view. A proper construction of the agree- ment of the 21st of December 1822, amounts to this, that the legatees agree not to take their legacies, and the devisee not to take the devise ; whereby the will of Christian Hege was rendered in- operative as to this land, it therefore descended in reality to Henry Hege's children, and therefore they alone could sue for the money arising out of the sale of that inheritance, which was made as to their interest by their agreement and authority. There was a valuable consideration which induced Peter Hege to enter into this agreement; for upon his refusal to take the real estate devised to him, subject to the legacies, he would take noth- ing : 2 Rop. on Leg. 447, 450. And if he took the land, he would have been personally liable for the legacies, which amounted to more than its value : Gleim v. Fisher, 6 Johns. Ch. R. 33. If then Peter liege, under the influence of this consideration, and the other defendants, thus agreed with the plaintiffs and the other heirs of Christian liege, that this part of the estate should be considered as land, and should be sold as their inheritance, they ought not now to be permitted to sustain a defence against the legal operation of their agreement. Crawford appears for Samuel Diehl, the purchaser of Henry liege's estate from the administrators. The defendants are mere stakeholders, having no interest in this cause. The administrators Oct. 1829.] OF PENNSYLVANIA. 87 [Hege v. Hege.J of Henry Hege applied to the Orphans' Court for an order to sell the estate devised to Henry by his father's will, subject to the pay- ment of the legacies ; arid the conditions of sale made known by the administrators stated that they would sell all the interest of Henry Hege, deceased, under his father's will, "which is herewith exhibited." The interest which Henry had in Peter's land, being part of the estate which he took under his father's will, passed by the sale made by Henry's administrators to Samuel Diehl ; there was therefore nothing left in Henry's heirs to sue for. It is Samuel Diehl who defends in this suit against the operation of an agreement, in the subject-matter of which he had an interest at the time of its execution, and to which he is not a party, and cannot therefore be affected by it. But the plaintiffs in this suit cannot recover at all ; if there can be a recovery by any one but Samuel Diehl, it must be by the administrators of Henry liege. By the will of Christian Hege, deceased, his ten children were to share his real and personal estate equally, and executors of that will were appointed, through whose hands the estate must come to be distributed, and therefore in the shape of personal estate, and not land. The balance overpaid by the administrators of Henry liege, as appeared upon the settlement of their administration account, remained a debt against the estate, and being indebted, no one but his administrators could sustain an action to recover a legacy due to him. Chambers, for the defendants in error. This cause depends upon the construction of the will of Christian liege, deceased. The interest of Henry, under his father's will, was land. Henry could not have sued Peter, nor could Peter have sued Henry for their respective legacies. The land was devised in consideration of $f>0 an acre to one, and $00 an acre to the other, and which was not payable by Peter to his brothers and sisters, nor by Henry to his brothers and sisters, but which was payable by Henry and Peter respectively to the executors of their father, Christian liege, and, therefore, if Henry was alive, he could sustain no action against Peter, and therefore his administrators, much less his heirs, cannot sustain it. If the will of Christian liege had been executed, Peter would have to pay $600, and Henry $400 per annum to the executors, and this was to be equally distributed between the ten .children ; out of which Henry's share would be $100 per annum, leaving him a debtor to the estate to the amount of $300 per annum ; and being thus indebted to the estate, he could not sustain an action to recover from it. Henry having taken the lands devised to him by his father's will, became personally liable for the payment of the lega- cies ; and being thus a debtor to the fund $10 for every $1 he was to receive, neither he, his heirs nor administrators, can recover. 88 SUPREME COURT [Chambersburg [Ilege r. Ilege.] Peter liege had no election to make, either to take or not take the luml devised to him, and take his share of the estate, as was the case with Henry; and the only effect which the agreement of the 21st December 1822 had upon the situation of the parties, was to give to Peter a share in the estate, upon his refusal to take the devise, which, without the agreement, he would not have been entitled to. , in reply. Samuel Diehl being no party to this suit, cannot be affected by it in any way. It is not the true construc- tion of Christian liege's will, that the whole estate was a general fund fur the payment of the legacies ; on the contrary, it is the manifest intention of the testator that the legacies should be paid by Henry and Peter directly to the legatees, and not to the. ex- ecutors. . Because of Peter being liable to pay to Henry a certain legacy, and Henry being liable to pay to Peter a certain legacy, both of which being charged upon their respective devises, the law does not make an extinguishment of the one to the amount of the other ; if it did, the rule must necessarily be general, and take effect imme> diately upon the death of the testator ; and the law would be the same, although the one or the other may have assigned his legacy, or the fund out of which it was payable may have been assigned. Or suppose the land of one or the other should be sold for the debts of the testator ? The consideration of these supposed cases sug- gests difficulties which are unanswerable, and lead to the conclusion that the law is not on this point as contended for by the defendants. The opinion of the court was delivered by HISTON, J. This was a case stated for the opinion of the Com- mon Pleas, on the will of Christian Ilcge, deceased, and the facts whirh have occurred since his death. Chri.->tian liege, by his last will, after directing his debts to be paid, ami making provision for his wife, devised as follows: "To my son Henry I give and bequeath two hundred acres of land, lying and situate on the north side of my mansion-house and property, the beginning to be on my east line arid run a westerly course, so as to be equally advantageous to both tracts, at present undivided. This division I wish Jacob Hege, and two discreet neighbors, to be chosen by Jacob Hege ami Henry Hege, to determine. This two hundred acres I value to Henry Ilege at f>0 per acre, payable in instalments of $300 each for five years; after five years, I will that he pay the sum of $400 yearly, until the whole sum be discharged. If Henry Ilege refuses to comply with these terms, it is my will that my executors sell the same land to the highest bidder, at fair and public sale; if he complies, I will the above described land to him and his heirs and assigns for ever. Oct. 1829.] OF PENNSYLVANIA. 89 [liege v. Hege.] " I will arid bequeath to my son, Peter Hege, two hundred and thirty-six acres fifty-eight perches of land and allowance, including my man-sion-house, barn, buildings and appurtenances thereto be- longing. This land lies at the south side of my property, which I value to him at $60 per acre, payable in instalments of $500 per year, for five years ; then the instalments shall be $600 per year until the amount is paid. My will is that Jacob Hege act as guar- dian of Peter Hege until he is twenty-one, and grant the privilege of selling off fifty or sixty acres of the above land, to be sold and conveyed by my executors. Jacob Hege shall choose out the part to be sold where it will least injure the property. The above-men- tioned property I will and devise to Peter Hege, his heirs and as- signs for ever, the amount being discharged." lie then proceeded to order a sale of his personal property, and of a tract of land in McQonnel's cave, &c. " Finally, I will that each of my children receive an equal share of my whole estate," &c., and appointed three executors. The will was proved 20th May 1815. Henry liege took possession of the part devised to him, and made four payments, and died 16th July 1820, leaving three children, the plaintiffs in this cause. After his death, the land devised to him was sold by order of the Orphans' Court for the payment of debts. The petition, order and deed, describe it particularly, as two hundred acres by metes and bounds, being the same devise to him by his father, and it was asked to be sold, and was sold ex- pressly subject to the payment of the remaining sums, to which it was subjected by the will of his father. Samuel Diehl was the pur- chaser. The guardian and executors sold fifty acres of the part devised to Peter. After Peter came of age, he determined not to take the land devised to him ; and his brothers and sisters, and the guardian of Henry's children entered into an agreement on the 20th of December 1822, in which, after reciting the devise to him, it was " mutually agreed between Peter and his brothers and sisters, legatees as aforesaid, that the said land so devised to Peter He^e, should be sold for the best price that could be obtained for the same, and the money arising from the sale should be equally divided among the children of the said Christian Hege, or their represent- atives, so that the said Peter liege, out of the whole real estate of said Christian Hege, shall receive an equal share with his brothers and sisters, and no more;" and then persons are appointed to sell, and the legatees covenant to release to the purchaser. The land was sold, and the price was, for the purpose of this decision, admitted to be in the hands of those who sold, who are defendants. On the 9th of March 1824, the administrators of Henry settled their account, and there was a balance in their favor of 124, paid in discharge of debts beyond the amount of the personal estate and 00 SUPREME COURT [Chamberaburg [Hope r Hegc.j of the lands sold, and were discharged by the Orphans' Court, be- fore this suit brought. Jacob liege, one of the defendants, is the surviving executor of Christian Ilege, deceased. Samuel Diehl, who purchased the land devised to Henry, claimed to be entitled to Henry's share of the land devised to Peter, subject to the payment of GOO per year, which was to be divided among the legatees, of whom Henry was one, in equal portions ; and con- tended that all the interest in lands devised to Henry by the will of his father, was sold and purchased by him, Diehl. On inspect- ing the sale on the records of the Orphans'. Court, it is not so. There is no room for dispute ; it is the two hundred acres devised to Henry, by the will of his father, which is sold. It has been contested whether Henry's interest in the land devised to Peter was land or personal estate, in the event of Peter refusing to keep it, but it is entirely unnecessary to decide that ; for whether it was one or the other, it was not embraced in the application for sale, in the order of the court, nor in the deed. Henry was dead, and his land sold, and deed made, in June 1821. Peter did not refuse to take till 1822. It would be strange if the Orphans' Court had ordered a debt amounting to $1000, and falling due in successive years, in instalments of $60 per year, to be sold at auction. It would be still more strange if a claim of this kind, charged on Peter's land, should be transferred by a sale of Henry's interest in another and different tract ; and that without its being once alluded to in the evidence of that sale. Diehl represents Henry entirely, as to his interest in the two hundred acres devised to him, because he purchased and paid for that interest, but he does not represent Henry as to anything else devised to him by that will, for the same reason, to wit: that he has not bought nor paid for any interest in any part of what was devised to Henry, except the two hundred acres of land. Another point was made, and much discussed, whether this suit could be maintained by the children of Henry, or must be brought by his administrators, there being debts yet unpaid ; for the admin- istrators of Henry, having paid debts of his beyond the assets which came to their hands, stand in the place of the creditors to whom they paid. The debts are the debts of the deceased, as much as if thev yet belonged to the original creditor. In England, lands of a deceased are not charged with the debts, unless of a particular description ; here all lands left by a deceased are liable for every debt of a deceased ; there, lands descend gene- rally to one heir; here, they go to several, if several stand in the same relation to the intestate. There, lands go in one direction, and personal estate is distributed differently. Here, in almost every case, the lands and personal estate go to the same persons, and in the same proportions ; all the cases cited in this cause to show what in England goes to the heir, and what to the executor, are inappli- Oct. 1829.] OF PENNSYLVANIA. 91 [liege v. liege.] cable to this case. Where debts are unpaid in this country, they are levied equally from lands or goods, stated to be, and actually for this purpose being, in point of law, in the hands of the adminis- trators. Where the lands themselves are to be recovered, the suit is by the heirs. Where debts are to be recovered, or personal property, or damages for breach of contract with the deceased, the adminis- trator must bring the suit. I shall, on this subject, only refer to the case of Lee v. Wright, in 1 Kawle 149, decided by this court in December Term last, in which everything contended for in this case was considered. The decision of the court was right on both points, and judgment is affirmed. GIBSON, C. J. As I concur on every point but that which regards the right of the plaintiffs to maintain the action in their own names, it is unnecessary to state more of the case than relates to the ques- tion. It is thus. A father devises a plantation to eacli of his sons, Henry and Peter, on terms of paying a specific price, to be distri- buted among all his children ; and directs his executors to sell the plantation of Henry if he should refuse to accept on the terms pre- scribed, but gives no such direction with respect to the plantation of Peter. Henry accepts, pays part of the price, and, while Peter is a minor, dies, leaving the plaintiffs, his children. The guardian of Peter enters on the plantation devised to him, and pays part of the price ; but Peter himself on coming of age, agrees with his brothers, sisters and the plaintiffs, by writing under seal, to have it sold, "the said legatees," as it is expressed, "getting their share of the pur- chase-money, in satisfaction of what they would have got from Peter, under the will." The land is in fact so sold, the price received by the defendants, and the plaintiffs having sued for their share of it, are met by an objection that the action ought to be in the name of the father's administrator. It does not appear whether Peter, on coming of age, accepted or rejected the devise. That he was concluded by the election of his guardian will not be pretended. The doctrine is accurately stated in Brown v. Caldwell, 10 S. & R. 114, where it was held that the act of a guardian, in agreeing to what in this state is popularly called a consen table line, may be avoided by the ward immediately on his coming of age. Either, then, he accepted, or he did not. If he accepted, the estate became absolute in him, and he became personally indebted for the price of it to his father's executors, to whom alone recourse could be had by Henry, or, so far as might be necessary for the payment of his debts, by his administrator. If Peter became indebted to the executors, the money was demandable by them, for payment of his father's debts, and distributable to the administrator of Henry, by them alone. But without an interest in the land, neither Henry nor his administrator could make pn>- 92 SUPREME COURT [Cliambersburg [Hope r. Hcge.] tcncc to an action for the proceeds of it. The utmost that the ad- ministrator could insist on, would be that no agreement of the plaintiffs with the other legatees should prevent him from recovering from the executors as much of Henry's share of the money owing by Peter as would enable him to pay Henry's debts ; but for all beyond, the defendants would be liable to the plaintiffs by force of -their agreement. If then the land vested in Peter, the administrator would not have a color of title to demand any part of the price of it from the defendants. But what if Henry, as he may have done, rejected the devise? The land, in that aspect of the case, fell back into the estate of his father, who died intestate in respect of it, just as if it had not been devised ; consequently it descended in the first place to Henry and the other children as tenants in common, and afterwards as regards his estate in it to the plaintiffs. The interest of Henry while he lived, and of the plaintiffs after his death, was real estate ; and it vras their land which was sold by virtue of the agreement. Neither Ilcnrv nor any one who represents him could claim an interest in the price of it under the will, for neither the land nor the price of it, passed by the will. We have then the naked case of a debt owing, not to the intestate's father, from whom the land descended, but to his children ; and from agents who have received the price of their land, in pursuance of an agreement to pay it over to them, notwithstanding which, it is said the money can be reached only through the administrator of their father, because it may possibly be needed to pay his debts. When the children of an intestate have sold that which descended from him, I believe it has never been understood that either the administrator or the creditors can interpose a claim to the purchase- money. The purchaser stands in the place of the children ; and the remedy of the creditors is by judgment against the administra- tor, and execution of the land as a fund into whose hands soever it may have come; or where the administrator interferes by a sale of it under an order of the Orphans' Court. In the case of a judicial sale, p< il icy ree made a party in the same manner as if he had been summoned or returned by the sheriff, as terre-tenant of the land. When a testator, by his will, blends his real and personal estate, he thereby charges his land with the payment of legacies. THE record of this case, returned on a writ of error to the Court of Common Pleas of Franklin county, showed, that it was an action brought by the defendant in error, who was plaintiff below, against the plaintiffs in error, defendants below, to recover a legacy due to Martha McLanahan, under the will of her husband, John McLana- han. The material part of the will is as follows : " First, I give and bequeath unto my beloved wife Martha, the sum of GOO/., specie, Pennsylvania cnrrency WQl. thereof is to Oct. 1829.] OF PENNSYLVANIA. 97 [McLanuhan v. McLanahan.] be paid unto her one year after ray decease, by my executors, and the residue in gales of 257. a year, yearly and every year, until the whole sum of 6007. is fully paid unto her, her heirs or assigns; and also is to have a room to herself in the mansion-house, and a com- fortable living; and also to have one mare arid two cows to herself, to be kept and fothercd on the plantation for her use, with stable room for the same, during her widowhood. To my sons John, Thomas and Michael I give and bequeath all ray real and personal estate, with all the appurtenances thereto belonging, excepting such part as hereafter reserved for the remaining legatees, subjecting my land, nevertheless, to be liable to the several payments here- after mentioned. To the legatees of said estate the land is to be equally divided in quantity and quality, having due regard to the real value of the same, to be divided by themselves, and in case of disagreement, to choose men for the same, allowing my eldest son, John, the mansion-house, and that part which will be most suitable for the same ; allowing him, likewise, 2007. advantage in said division on account of his mother's maintenance. To my son Samuel, I give and bequeath the sum of 1007., which he has already received. To my son Josiah, I give and bequeath the sum of 400/., together with what he has already received, to be paid to him in manner fol- lowing : 507. three years after my decease, and then 507. a year until the whole sum is fully paid. To my daughter Martha I will and bequeath the sum of 20s., and furthermore allow my beloved wife Martha, and my son John, to pay her 1007., or to her children, to which either they please. To my daughters, Jane, Rebecca, Lethis and Elizabeth, I will and bequeath the sum of 2507. each, together with good bed and bed-clothing to each, deducting from Jane the value of what she has already received in stock and fur- niture, and then to be paid in the following manner, that is to say, to my daughter Rebecca, the sum of 507. one year after my decease, and two years after my decease, 507. unto my daughter Jane, and so on yearly and alternately, until the aforesaid legacy is fully paid unto them, their heirs or assigns ; and then is to pay 507. to my daughter Lethis in one year following ; and then 507. the year after unto my daughter Elizabeth, and so on alternately, 507. yearly, until their aforesaid legacies is paid unto them, their heirs and assigns ; and to my daughter Elenor, I will and bequeath the sum of 4007., out of which she is to get sufficient schooling, and the remainder to be paid in the following manner : 507. to be paid to her again she will be eighteen years of age, and then 507. yearly until the aforesaid sum is fully paid unto her, and for the purpose aforesaid. I nominate, ordain and appoint my three sons, John, Thomas and Michael, to be my lawful executors of this my last will and testament, to pay and recover all just debts, and discharge the legacies within mentioned." 1 p. & W._7 98 SUPREME COURT [Chamberslmrg [McLanahan r. McLanahan.] On the 16th of December 1824, the following declaration was filed : " John McLanahan and Michael McLanahan, both of the county aforesaid, yeoman, surviving executors of the last will of John McLanahan of said county deceased, were attached to answer John Wvant, administrator of the goods and chattels of Martha McLanahan. deceased, of a plea of trespass on the case, &c.. and whereupon the said John Wyant, by George Chambers and Joseph Chambers, his attorneys, complains, that whereas John McLanahan in his lifetime, to wit, the 7th day of July 17D7, at the county aforesaid, by his last will and testament, in writing duly executed, did among other things, bequeath unto his wife, Martha McLana- han, the sum of 600/., to be paid as follows, to wit: 100/. to be paid the said Martha one year after the decease of the said testator, and the remainder thereof in gales of 2/W. per year, yearly, and every year thereafter, until the whole sum of >00/. was fully paid to the said Martha, her heirs and assigns. And that the said testa- tor, by his same will, did further devise and bequeath to his said wife Martha, a room in his mansion-house and a comfortable living, and also one mare and two cows to be kept on the plantation of the said testator during the widowhood of the said Martha ; and the said testator, John McLanahan, did, by his same will, devise to his three sons, John, Thomas and Michael, all his real and personal estate, excepting such portion of his personal estate as was by his will otherwise disposed of; and by his last will and testament, did therein appoint his three sons, John, Thomas and Michael, execu- tors, to pay and receive all just debts, and discharge the legacies mentioned in said will, and the said John Wyant in fact saith, that after the making of said will, to wit, the 1st day of March 171)8, the said John McLanahan, deceased, and the aforesaid sons, John, Thomas, and Michael McLanahan, did duly prove the said will on the day and year last aforesaid, and took upon themselves the bur- den of the execution thereof, and did then and there possess them- selves of all the real and personal estate whereof the said testator died seised and possessed ; and the said John Wyant further in fact saith that the estate of the said testator, to a great amount beyond all debts, and funeral expenses, and legacies mentioned in said will, came into the hands and possession of the said executors, to wit, at the rounty aforesaid : arid the said John Wyant doth further, in fact, say, that the said executors, John, Thomas and Michael, did, as devisees of the real estate of the said testator, immediately after the decease of the said testator, enter on the lands which were of the said deceased, in the said county of Franklin, and possess and enjoy the same, as devised to them in said last will and testament; and that afterwards, to wit, the third day of May, 1817, Thomas Mc- Lanahan, one of the said executors and devisees, died, by reason Oct. 1829.] OF PENNSYLVANIA. 09 [McLanahan v. McLanahan.] whereof the said John and Michael McLanahan became the surviv- ing executors of said testator, and of the said lands and tenements so devised, and of a value more than sufficient to pay all debts and legacies, the said John and Michael McLanahan, devisees as afore- said, were at the irnpetration of this writ, possessed, together with Jacob Ickus, named in the same writ, as terre-tenant, and which said Ickus doth hold and enjoy the possession of said premises, as the tenant of the heirs and representatives of the said Thomas Mc- Lanahan, deceased. By reason whereof the said executors and devisees became liable to pay to the said Martha, in her lifetime, the said sum of GOO/. ; nevertheless the said John, Thomas and Michael, the said sum of GOOZ., or any part thereof, to the said Martha, in her lifetime, or to the said John Wyant, after the death of said Martha (who died, to wit, the 15th day of June, in the year 1819, and to which said John Wyant, after the death of the said Martha, to wit, the 20th day of September 1821, administrator of the goods and chattels, rights and credits which were of the said Martha, was committed by the register of the said county of Franklin, in due form of law), yet hath not paid, although to do the same, the said John, Thomas and Michael, executors and devisees as aforesaid, by the said Martha in her lifetime, to wit, the 1st day of January 1817, and at other days and times before and after said day, and the said John and Michael, surviving executors and devisees since the death of the said Thomas by the said John Wyant since the death of the said Martha, were requested ; but the said legacy to the said Martha in her lifetime, and to the said John Wyant, since the death of the said Martha, the said John McLanahan, and Michael McLanahan to pay have refused, and the same to pay to the said John Wyant, the said John and Michael McLanahan, sur- viving executors and devisees as aforesaid, still do refuse, to the damage of the said John Wyant 1000/., &c.' ? 28th March 182G, defendants, John and Michael, pleaded in abatement as follows : " And now the said John and Michael by James Dunlop, their attorney, come and defend the force and injury when, $ce., and say, that the said plaintiffs ought not to have and maintain his aforesaid action thereof against the said John and Michael, because they are not chargeable as executors of the said John McLanahan, deceased, with the payment of the said legacy of 2f>0/., but that the lands and tenements of the said John McLanahan, deceased, were, by the last will and testament of said John, subjected to the payment of the said 2 ")()/., and so charged and encumbered were by the said last will and testament devised to the said John and Michael, and Thomas, another son of the said John, deceased. " And the said defendants further say, that the said Thomas so being jointly seised with the said John and Michael, afterwards, to 100 SUPREME COURT [Chambertlmry [McLanahan t. McLanahan.] wit, January term, one thousand eight hundred and nine, out of the Court of Common Pleas in and for said county of Franklin, sued and prosecuted a writ of partition against the said John and Mi- chael, and that after the return thereof, viz., on the oth day of March 1811, the said Thomas, John and Michael, parties thereto by consent, submitted the matters thereof to certain referees, mutu- ally chosen, who divided the said lands so devised to and amongst the said John, Michael and Thomas, and made report to the said court to January term 1811, agreeably to the said submission, which said report was then confirmed by the said court, and fully acqui- esced in by the said parties continually thereafter. "And the said John and Michael further say that afterwards, and in pursuance thereof, the said John, Michael and Thomas took pos- session of their several purparts so laid oft' and divided, and became severally seised of their separate and distinct purparts, according to the said report and judgment of said court, each one in his own demesne as of fee and being so seised of their distinct and separate purparts ; the said Thomas afterwards, viz., on the day of April 1811, died, leaving three children, viz., Alexander, Amelia and Catharine, who, at the time of the impetration of the writ in this cause, were and still are, in full life and residing within the jurisdiction of this court. " And the said John and Michael further say, that John Flanagan, Esq., who was duly appointed administrator of all and singular, the goods and chattels, rights and credits which were of the said Thomas, by the register of the said county of Franklin, afterwards, to wit, on the 21st day of May 1818, sold and conveyed of the said purpart of said Thomas, in pursuance of a decree of the Orphans' Court of said county, nine acres and three perches to John McGee ; twenty-one acres and eighty-seven perches, to Richard I lay den ; thirty-five acres and ninety-eight perches to Doctor John Oelig; fourteen acres one hundred and thirty-two perches to James Gettys, and that two hun- dred acres of the said purpart of the said Thomas, was purchased at sheriff's sale from Archibald Flemming, Esq., high sheriff' of said county, by Samuel Hughes, Esq.. which said two hundred acres were sold by the said sheriff, under a fieri facias and venditioni exponas, issued out of said Court of Common Pleas of said county, of which said two hundred acres the said Samuel is now seised in his demesne as of fee, all which several tracts or parcels thus sold and conveyed, were parts of the said purpart of which the s;iid Thomas so died seised. And the said John and Michael further say, that the said John Oelig, after the said sale so made to him by the said administrator, sold and conveyed, by deed, the said thirty- five acres to James Burns and Isaac Moorehead, as an insolvent debtor, under the laws of this Commonwealth, in trust, for the use of his creditors ; and that the said John McGee, after the 21st day Oct. 1829.] OF PENNSYLVANIA. 101 [McLanahan v. McLanahan.] of March 1818, died, leaving Bernard McGee, his brother, his sole heir-at-law, all which said several persons, viz. : Bernard McGee, Richard Ilayden, James Burns, Isaac Moorehead, Martin Funk, Samuel Hughes and James Gettys, at the irnpetration of the said writ issued in this cause, were and still are tenants of the said several purparts, according to their said respective titles, of which the said Thomas McLanahan died seised as aforesaid, and that tlio said Catherine, Alexander and Amelia, since the death of their father, the said Thomas, continually have been, and still are, in full life and seised in their demesnes as of fee in the remaining part of said purpart, of which the said Thomas died seised, and that no writ hath issued against either of the said tenants or children and heirs of said Thomas, nor against the said James Burns, Isaac Moorehead, Richard Ilayden, Martin Funk, Samuel Hughes and James Gettys, or either of them, and this, they the said John and Michael, are ready to verify, and, therefore, inasmuch as no writ hath issued out of the Common Pleas of said county, against them, the said Catherine, Alexander and Amelia, and against James Burns, Isaac Moorehead, Barnard McGee, Richard Ilayden, Martin Funk, and James Gettys, to the said sheriff of the county directed, they, the said John and Michael, pray judgment, if they ought to be compelled to answer the said writ returned." The plaintiff demurred to this plea, and after argument the Court of Common Pleas made the following order : " The court do adjudge that the defendants ought not now to be compelled to answer, and order that notice of this action be given to the several terre-tenants named by defendants (in their plea of abatement), returnable at next term, and that the person so named after service be added as terre-tenants. And the defendants now of record agree not to take any advantage of the mode of bringing in the other terre-tenants. The death of Isaac Moorehead and Richard Ilayden, terre-tenants (in plea) suggested ; exit notice to terre-tenants. 28th July 1826, served personally upon James Burns, Martin Funk, Samuel Hughes, Catherine McLanahan, Amelia McLanahan and Alexander McLanahan, nihil as to Bernard McGee and James Gettys. 2d September 182t>, rule on terre- tenants to plead in six weeks or judgment. July 24th 1827, John McLanahan and Michael McLanahan plead payment with leave, &c., and set off. 2d August 1827 ; exit notice to Henry Funk, served by copy. Washington appears for Samuel Hughes, Jacob Ickus, Bernard McGee and Martin Funk, 17th September 1S27, rule on Henry Funk, Samuel Hughes, Jacob Ickus and Martin Funk, to plead in thirty days or judgment. 18th September 1>27. copy served. Washington appears for James Burns. James Gettys and Henry Funk, and for all the terre-tenants for whom he has appeared. Pleas payment with leave to give the special matter in evidence. Plaintiff replies non sole it, &c., issue, &c. 102 SUPREME COURT [Cham&enburg [McLanahan v, McLanahan.] The will of John McLanahan, Sr., having been read, the defend- ants offered in evidence the following receipt, it having been first admitted that John Smith was married to Jane McLanahan, one of the heirs of Martin McLanahan, and that the receipt was dated after the death of Martha McLanahan : ' Received, October the llth, A. D. 1819, of John McLanahan, executor of John McLanahan, Sr., deceased, one hundred dollars, it being in part coming to John and Garret Smith, heirs of Martha McLanahan, deceased, one hundred dollars, received per me. " JOHN SMITH." Which evidence was objected to, and overruled by the court, and exception taken by the defendants. On behalf of the tcrre-tcnants it was proved that John Flanagan, administrator of Thomas McLanahan, who was one of the executors of John McLanahan, deceased, in March 1818, petitioned the Orphans' Court for an order to sell the real estate of Thomas McLanahan, his intestate, for the payment of debts, to wit, two hundred and ninety acres of land, being the same estate which he took under his father's will, upon which petition the court granted an order for the sale of ninety-eight acres, part thereof, which in May 1818, in pursuance of that authority, the administrator sold in parcels, to wit: nine acres to Bernard McGee, for $613.27; twenty-one acres and eighty-seven perches to Richard Hayden, for $1508.26 ; thirty-five acres and ninety-eight perches to John Oelig, for $241*2. 2o. In England he cannot plead it after a plea in bar. Eyers v. Cowley, Sir William Jones 341) ; 2 Saund. 7, note 10. On the plea that all the terre-tenants have not been summoned, for the having speedier justice, the plaintiff may pray a writ to sum- mon the person alleged to be terre-tenant, which is granted to him by the court ; and by this means, when summoned by the sheriff, Oct. 1829.] OF PENNSYLVANIA. 113 [McLanahan v. McLanahan.] he is made a party in the same manner as if he had been summoned, or returned by the sheriff as terre-tenant of the land. Judgment reversed, and a venire de novo awarded. Referred to, 1 W. 418 ; 4 W. 398 ; 7 W. 478 ; 3 Barr 159 ; 11 C. 187. Commented on, 8 W. 297 ; 7 Barr 243 ; 9 Id. 132; 10 Wr. 175. Approved and followed, 9 W. & S. 106. Followed, 4 R. 446, 447 ; 12 Wr. 123 : 19 Smith 176 ; 2 Norris 353, s. c. 4 W. N. C. 268. See, 24 February 1834, 59 P. L. 84. and 17 Smith 38, and cases there cited. 1 P. & W. 8 114 SUPREME COURT [Cham&enburg Laughlin against Peebles. IN ERROR. A party who has recovered a judgment in the Court of Common Fleas, and received the amount of it from the defendant, will not be permitted to reverse that judgment on a writ of error. Qntere. If a plaintiff in error withdraws his writ, and has an entry made upon the docket, " writ of error withdrawn," whether it is not a retraxit, and will not bar another writ. THIS was a writ of error to the Common Pleas of Cumberland county. The plaintiff in error was the plaintiff below. To October term 18^5, a writ of error issued at the instance of the plaintiff to remove this same judgment ; the record was not returned, but on the 12th of October 1826, this entry was made upon the docket of the Supreme Court, " Writ of error withdrawn." Another writ of error issued to October term 1829, upon which the record was returned, and several errors assigned, which were now before the court. Alexander, for the defendant in error, moved to quash the writ on two grounds : 1. That the withdrawal of the writ of error, on the 12th Octo- ber 1826, was a retraxit, and is a complete bar to the prosecution of another writ to remove the same judgment: Beecher v. Sherly. Cro. Jac. 211. 2. That an execution issued in the court below, at the instance of the plaintiff, upon his judgment, and that he has since received the amount from the defendant, and read a deposition made at the bar, to show that the plaintiff had received the benefit of his judg- ment, and also exhibited certain receipts, is further evidence of the same fact. Williamson, for the plaintiff in error. The withdrawal of a writ of error by the attorney of a party is not a retraxit, which can only be done by the personal appearance of the party in court : 2 Sell. Prac. 338 ; Bcecher's Case, 8 Coke 58. An attorney of a party has no such power : Jac. Law Die. 523. Carothers, on the same side. A retraxit operates in the nature of a release, and the powers of an attorney are not so comprehen- sive as to enable him to release the rights of his client. There were several judgments against the same defendant in favor of the same plaintiff, and the receipts are not particularly applicable to the judgment which is removed by this writ of error. Alexander, in reply. It does not appear by whose direction the entry of "writ of error withdrawn" was made, whether by the Oct. 1829.] OF PENNSYLVANIA. 115 [Laughlin v. Peebles.] party or his attorney ; and while it remains upon the record of a court, competent to make the entry, even if erroneous, it is conclu- sive. The court being satisfied by the evidence exhibited that the plaintiff had received the benefit of his judgment, on this ground alone, puashed the writ of error. Distinguished, 1 C. 220 Gallatin against Cornman et al. IN ERROR. Where the defendant, under the Act of the 20th of March 1S10, regulating arbitrations, appeals from the award of arbitrators, and a general verdict passes for him, he is entitled to the costs which follow a final judgment; such case is not within the provisions of that act, as to costs, and they are given by the law as it existed before the passage of that act. Where a transcript of the judgment of a justice of the peace is filed in the oflice of the prothonotary of the Court of Common Pleas, and the judg- ment is opened, and the defendant let into a defence in that court, and a verdict is rendered for the defendant, the One Hundred Dollar Act, regulat- ing the payment of costs on appeal from the judgment of a justice, does not apply. WRIT of error to the Court of Common Pleas of Perry county. This case, the facts of which are fully stated by Judge Smith, who delivered the opinion of the court, was argued by Creiqh, for the plaintiff in error, who cited Dearth et al. v. Laughlin, 16 S. & 11. 200 ; Landis v. Shaeffer, 4 Id. 106 ; Flick et al. v. Boucher, 10 Id. 373; Purdon 20, and Lentz v. Stroh, S. & R. 40. And by Alexander, contra, who referred to Flick et al. v. Boucher, 16 S. & 11. 373. The opinion of the court was delivered by SMITH, J. A transcript of the judgment rendered by Justice White, in the above stated action, was filed in the Court of Common Pleas of Perry county, and on a fieri facias issued thereon, a levy was made on the real estate of John Cornman, one of the defend- ants. At the instance of John Cornman this fi. fa. was afterwards quashed, the judgment opened, and upon the issue on the plea of payment, the sum due was to be ascertained, the lien of the judg- ment to remain in the mean time, and the costs to abide the final event of the suit. The cause was then arbitrated, and a report made for the plaintiff for $44. 2o, with costs, from which the de- 116 SUPREME COURT [Chambertburg [Gallatin v. Cornman.] fondants entered an appeal. At the trial, on the 7th of April 1829, a verdict was returned by the jury for the defendants, upon which a motion was made to enter a judgment without costs, which the court overruled, and entered judgment generally for the defendants. Four errors have been assigned by the plaintiff on these proceedings. 1st. That the court erred in refusing to enter judgment with costs, since the appeal. 2d. That the court erred in allowing the defendants the costs paid by them, at the time of appeal, and which embraced the costs on the original suit before the justice. Gd. That the court erred in allowing the defendants (who were the appellants), the fees of their subpoenas, and serving them, their witnesses' fees, and daily pay since the appeal, also the jury fee paid to the sheriff for the verdict. 4th. That the execution issued for costs against the plaintiff, when no costs were due to defendants. The errors may all be considered together. It is to be observed in this case, that neither party appealed from the judgment of the justice; but after the transcript of his judgment had been filed in the office of the prothonotary of the Court of Common Pleas, the judgment was, by consent of the parties, opened, and the cause, after issue had been joined, was put to arbitrators, and when they had decided, the defendants, by an appeal, carried it back to the Court of Common Pleas; it was there tried in the usual form by a jury, and a verdict and judgment rendered for the defendants. It is then a case to which the provisions of the One Hundred Dollar Act, as to costs on an appeal from a justice's judgment, are not strictly applicable. If, however, the provisions of that act can be consid- ered applicable, the defendants would, beyond all doubt, be enti- tled to costs on the verdict and judgment, according to the decision of this court in Flick et al. v. Boucher, 1C S. & R. 373. By the One Hundred Dollar Act, it is declared, that on the reversal or abatement of a judgment, the defendant, when he appeals, shall recover costs, if, on the trial, he has produced no other evidence than he exhibited before the justice; here, no other or new evi- dence was produced, and therefore, under this act, the defendants would be entitled to costs. But I take the proceedings to have been strictly under the Act of the 20th March 1810, regulating arbi- trations, and how the costs of an appeal from the award of arbitra- tors arc to be paid. The 14th section of that act, is the one which has some bearing on the case before us ; it provides that if the de- fendant (as here), be the appellant, the condition of the recogni- sance shall be, that if the plaintiff, in the event of the suit, shall obtain a judgment for a sum equal to, or greater, or a judg- ment as, or more favorable, than the report of arbitrators, the said defendant shall pay all costs that may accrue in consequence of the appeal, together with the sum or value of the thing awarded Oct. 1829.] OF PENNSYLVANIA. 117 [Gallutin v. Cornman.J by the arbitrators, with one dollar per day, for each arid every day that shall be lost by the plaintiff, in attending to such appeal. This section does not provide for costs, where the plaintiff shall not obtain such a judgment as is mentioned in this section. In the case before us, the plaintiff had no cause of action, and did not recover anything ; nor does that section of the act provide, that the defendant shall recover costs, in case he is successful on his appeal ; such a case, it would seem to me, is not provided for by the act. I would then, in such case say, that the law as it stood before the One Hundred Dollar Act, and the Arbitration Act, is to govern ; and therefore, that the costs in this case should follow the final judgment, which was for the defendants generally. The judgment of the court below is therefore to be affirmed. Judgment affirmed. Referred to, 10 Barr 182. Followed, 8 W. & S. 380, 381. Mulliken against Aughinbaugh et al. IN ERROR. A debt due to one who is an applicant for the insolvent laws of Mary- land, and for whom a provisional trustee has been there appointed, is not subject to a foreign attachment in Pennsylvania, it being in yrvmio Icyis. A foreign attachment will lie in Pennsylvania, at the suit of a citizen of another state. Qucere. Whether a foreign attachment abates by the death of the defend- ant, after interlocutory and before final judgment. Tins was a writ of error to the Common Pleas of Cumberland county, to remove the record of a judgment entered upon the following statement of facts, which, it was agreed, should be con- sidered in the nature of a special verdict. On the 20th of May 1818, Aughinbaugh and Clippinger, resident citizens of the state of Pennsylvania, were indebted to Fahnestoek and Ciaullaghcr, for the use of Henry Fahnestoek, in the sum of $4278.80, which was then payable to the said Fahnestoek, on the 29th May 18 10. On the 4th day of September 1818, Henry Fahne- stoek, being then a resident of the city of Baltimore, in the state of Maryland, in pursuance of a law of that state, made application for the benefit of the insolvent laws, whereupon certain proceedings were had and done, certified copies of which are now exhibited, and agreed to be considered as a part of this special verdict (prout same), of all which the plaintiff had notice. On the 17th of December 1818, the said Henry Fahnestoek, being still a non- resident of the state of Pennsylvania, and then residing in Balti- 118 SUPREME COURT \Chambersbwg fMulliken r. Aughinbaugh.] more, as aforesaid, a writ of foreign attachment was issued out of the Court of Common Pleas of Cumberland county, at the suit of the said Benjamin II. Mulliken, also a citizen of the city of Balti- more, against the said Henry Fahnestock, by virtue whereof the sheriff of said county attached the said debt, owing by the said Aughinbaugh and Clippinger to the said Henry Fahnestock, and so returned the same to the court aforesaid, on the return-day thereof; whereupon, at the third term, to wit, the 30th of August 1811.1, on motion to the said court, judgment was entered in the said suit for the plaintiff. Afterwards, and to the next term, to wit, November term, 1819, No. 170, a, writ of inquiry of damages issued, at the suit of the said Benjamin II. Mulliken, against the said Henry Fahnestock, to the sheriff, who, by an inquest, held on the 29th October 1819, found that the debt due by the said Henry Fahne- stock, to the said Benjamin II. Mulliken, and for which the said foreign attachment had issued, was $1768.08, all which was duly returned by the said sheriff" to the said court, upon the return- day of his said writ of inquiry of damages. Whereupon, on the 23d day of December 1819, and to the next term, to wit, January term, 1820, No. 102, a writ of scire facias was issued at the suit of the said Benjamin II. Mulliken. against the said Aughinbaugh and Clippinger, as garnisliees of Henry Fahnestock, in the afore- said foreign attachment, which said scire facias suit is the same upon the issue in which this special verdict is found. On the 31st day of July 1819, and to August term, 1819, No. 297, a suit was brought in the name of Henry Fahnestock and Thomas Gaullagher, late co-partners in trade, under the firm of Fahnestock & Gaullagher, for the use of Henry Fahnestock, and now for the use of Charles W. Karthaus, provisional trustee of the said Henry Fahnestock, against Barnet Aughinbaugh and John Clippinger, co-partners in trade, under the firm of Aughinbaugh & Clippinger ; which suit was brought to recover from the said Aughinbaugh & Clippinger, the same debt of $4273.80, which had been attached as aforesaid at the suit of the said Benjamin II. Mulliken. In this suit, among other things, the said Aughinbaugh & Clippinger set up as a defence and gave in evidence the said writ of foreign attachment, at the suit of the said Benjamin II. Mulli- ken, and other writs of foreign attachment at the suit of other plaintiffs. Whereupon, on the 19th November 1828, the following agreement or stipulation was made and entered upon the record of the said writ, to wit : " It is stipulated by the plaintiff by their counsel, that in the event of a recovery in this case, it shall be considered in favor of the persons legally entitled to have the money, and the same to remain in court until it be determined whether the plaintiff or attaching-creditors be entitled to receive it. Mr. Carothcr* and Mr. Watts appear for Adam Konigmacher, Benjamin II. Mulliken, Jos. and J. Wilkins, and E. F. Hallowell, Oct. 1829.] OF PENNSYLVANIA. 119 [Mulliken v. Aughinbaugh.] the attaching-creditors." " To this stipulation the defendants gave no consent." And afterwards, to wit, on the 22d January 1829, the following agreement was made, arid entered on the record : "It is agreed between Mr. Metzyer, counsel for the plaintiffs, and Messrs. Carothers and Watts, attorneys for the attachment- creditors, that the verdict when given in this case is in no wise to affect the attaching creditors mentioned in a former stipulation, but that their rights shall be held as if no such verdict had been given." This agreement was made in open court upon the trial of the cause, when a verdict was then rendered for the plaintiff, Charles W. Kar- thaus, for the original debt of $4273.80, without interest. It is further agreed that Henry Fahnestock died on the day of , A. D. 1825, and that letters of administration were granted on his estate to the said Charles W. Karthaus, in the city of Balti- more, on the 27th day of August 1829. Upon the foregoing facts the question is, who is entitled to the money in the hands of Aughinbaugh & Clippinger ? If the court should be of opinion, that the plaintiff in this issue is entitled to recover, then judgment to be entered for the plaintiff in this suit, and for the plaintiffs in the other suits, which by agreement abide the event of this case, and in that event the verdict and judgment at the suit of Fahnestock &, Gaullagher, for the use of Charles W. Karthaus, No. 297, August term 1819, to stand as a security for the use of the said Benjamin 11. Mullikin, and the other plaintiffs in foreign attachments, to wit, A. Konigmacher, E. F. Ilallowell, and Jos. & J. Wilkins, according to the agreement made on the 17th November 1828. and entered on the record of the said suit, as before recited. But if the court should be of opinion, that the plaintiffs in said foreign attachments are not entitled to recover, then judgment to be entered for the defendants, and the said suit for the use of the said Charles W. Karthaus, No. 297, of August term 1819, to be dis- charged from any encumbrance created by the said writs of foreign attachment, or by the before recited agreements of the 17th Novem- ber 1828, and 22d July 1829. It is further agreed that Benjamin II. Mulliken and Jos. & J. Wilkins were citizens of the city of Baltimore, in the state of Mary- land, and that Adam Konigmacher was a citizen of Pennsylvania at the time when said foreign attachments were issued, to wit, on the 17th December 1818. In the decision of the within special verdict, the facts embraced therein are to be passed upon and decided, and to have in every respect the same operation in law as if they had been presented duly for decision by pleadings or otherwise. All the records and papers mentioned in the foregoing special verdict, are hereby agreed to be considered part thereof. 120 SUPREME COURT [Chamtertburg [Mullikcn v. Aughinbauph.] The record of the application of Henry Fahnestock for the benefit of the insolvent laws, in the city of Baltimore, exhibited the follow- ing facts : That in pursuance of "An act relating to insolvent debtors in the city and county of Baltimore," Henry Fahnestock, on the 4th September 1818, applied to the Honorable Walter Dorsey, chief judge of Baltimore county, for the benefit of the insolvent laws, and the said judge referred his said petition, schedule and other papers, to the " Commissioners of Insolvent Debtors," and fixed the first Saturday of March term 1819 for the final hearing of said insolvent before the county court. The said commissioners ap- pointed Charles W. Karthaus provisional trustee, to take charge of the effects of the said Henry Fahnestock, in pursuance of the said act, who entered into a bond in the penalty of 100,000, con- ditioned for the faithful performance of the duties. It did not appear that any further proceeding was had in pursu- ance of said application, or that Henry Fahnestock ever afterwards appeared to prosecute his said application. The court below (Reed, president), after delivering the following opinion, directed judgment to be entered for the defendants. The attachment issued in case, and the judgment at the third term was interlocutory ; a writ of inquiry to assess the damages issued, and was executed and returned ; but no final judgment was ever entered thereon. But a scire facias issued without such judg- ment. The omission to have final judgment was not a clerical de- fault, but the neglect of the party; for such judgment could only be entered on motion, and such motion could alone proceed from the plaintiff. By his default, no final judgment was entered when the defendant died ; whereupon the attachment abated. No writ of scire facias can, therefore, be sustained ; nor could it regularly issue. Upon this statement of facts, and by the stipulation in the special verdict, every objection may be taken advantage of, without regard to the pleadings or issue. Our opinion being decisive on this point, it may not be necessary to consider the other aspects of the cause ; there are other points equally fatal to the plaintiff's right to recover. The transfer of the note to the provisional trustee, under the insolvent laws of Maryland, was a pledge of the property for the use of the creditors of Fahnestock, generally, although the right of property or title remained in him, and though the proceedings were never consummated by the appointment of a permanent trus- tee; yet these proceedings were in force when the attachments were sued, in December 1818. If at that moment there was a legal im- pediment to the issuing of an attachment, its subsequent removal would not make good a writ which had irnprovidently issued. Though Karthaus may have had no right to sue for the money, Oct. 1829.] OF PENNSYLVANIA. 121 [Mulliken v. Aughinbaugh.] he had the possession of the note ; and as the legal right of Fahne- Rtock, himself, to dispose of it in any way, was suspended or taken away by law so the law could not interpose to divest the interest which the general creditors had acquired in the pledge; until the proceeding, therefore, was discontinued, the property was locked up in the hands of the provisional trustee. Watts and Carotfiers, for plaintiff in error. In the court below, three objections were made to the recovery of the plaintiff. 1st. That a foreign attachment cannot be sustained by one who is not a citizen of Pennsylvania. 2d. That the attachment abated by the death of Fahnestock. 3d. That the proceedings under the insol- vent laws of Maryland, divested Fahnestock of his interest in the note, so as to make it not the subject of a foreign attachment. On the first point. Although the preamble to the attachment laws recites an evil to the citizens of our own state, which it was designed to remedy, yet such a construction has been given to those laws as that every man who sues for his claim in our courts, is considered quo ad hoc a citizen of Pennsylvania; and such a practice has been accordingly pursued as it would be now unsafe to overturn : Milne v. Morton, G Binn. 533. Second. The circumstance of there having been no final judg- ment entered upon the return of the writ of inquiry of damages, was but a clerical omission, and one which ought not to prejudice the rights of the plaintiffs ; the writ of scire facias against the gar- nishees treats it as a judgment, and it is not competent for another creditor of Henry Fahnestock to avail himself of this omission, which is, at all events, but matter of form. But after interlocutory judgment, the death of the defendant does not abate the writ of foreign attachment. In the case of Fitch v. Ross, 4 S. & K. 557, the Supreme Court have decided that the death of the defendant, after final judgment, does not abate the writ, and that the personal representatives may be substituted, and may put in bail to dissolve the attachment; and the same reasoning which influenced the court in that case is perfectly applicable to this. That the declared ob- ject of the act was to prevent non-residents from -withdrawing their effects from the state, leaving their debts unpaid; and this object would be defeated, if, after the plaintiff has run the tedious course of the law, and when he is about to reap the benefits of his pursuit, the death of the defendant dissolved all ; and his representatives would be at liberty to withdraw from the state, the effects which had been condemned to pay the judgment against him. Third. The foreign attachment issued here, bound the money in the hands of Aughinbaugh & Clippinger which they owed to Fahnestock. By the law of Maryland, when an application is made by an insolvent debtor, and his papers are referred to the 122 SUPREME COURT [Chambersburg [Mullikcn r. Aughinbaugh.] " Commissioners," a provisional trustee is appointed to take cnarge of the effects of the applicant while the proceeding is pending, and it is determined by the judicial decisions of that state (2 liar. & J. 24), that such trustee is but a recipient, a care-taker of the pro- perty during the pendency of the application, and until a perma- nent trustee is appointed he cannot sustain an action to reduce the property of the applicant into his possession. Karthaus was, therefore, but a care-taker of the evidence of the debt which Augh- inbaugh & Clippinger owed to Fahnestock, and had no right, under any circumstances, to claim the money due upon it. But inasmuch as it appears that Henry Fahnestock never took the ben- efit of the insolvent laws, but that what he did do, was merely to elude the grasp of his creditors, and never can result in any advan- tage to his creditors, it is difficult to discover why it should operate to render ineffectual a proceeding by one of his creditors, in our own state, by which his debt would be secured. , with whom was Mitter&ud Penrose, for defendant in error. Process by attachment is not of common-law origin, but is secured to the people by positive legislative enactments. Before the pass- age of the Act of 1705, entitled "An act about attachments," the effects of absenting debtors were not liable to their debts. The act referred to was passed to remedy this evil. The preamble recites that " whereas the laws of this government have hitherto been deficient in respect of attachments, so that the effects of per- sons absenting are not equally liable with those of persons dwelling upon the spot, to make restitution for debts contracted or owing within this province, to the great injury of the inhabitants thereof," &c. Hence the inference is inevitable that the law was intended for the benefit of the people of this state exclusively. It was so considered by Washington, Justice, in the case of Fisher v. Comegua, reported at large in Sergeant on Attachments, page 44. In that case the learned judge refers to the preamble, to ascertain whether a foreign attachment would lie in any case other than debt. " The mischief, as the preamble informs us, says he, was that the effects of absent persons were not equally liable with those of persons dwell- ing on the spot, &c., to the injury of the inhabitants of Pennsylva- nia." " Surely," says the judge, " an inhabitant of Pennsylvania is not less injured by the want of a remedy," &c. It is no answer to the proposition, that a foreign attachment was sustained in the case of Milne r. Morton, Binn. 3o3, although the plaintiff in the attachment was a citizen of New York. There the objection was not taken. It made no part of the argument of the case. The court was not required to give an opinion on it. Nor are we permitted to indulge in speculations on the subject. It is a statutory remedy, and should be construed strictly. According to the custom of Lon- Oct. 1829.] OF PENNSYLVANIA. 123 [Mulliken v. Aughinbaugh.] don, the person claiming its benefit must reside within the city. Foreign attachment is an attachment of the goods of a foreigner, found within a liberty or city, to satisfy some creditor, within such city or liberty. The attachment abated by the death of Fahnestock. who died after interlocutory but before final judgment. In the case of Lud- low v. Bigham, 4 Dall. R. 47, it was stated in argument that the defendant's death, after interlocutory judgment, destroyed the at- tachment. It was considered the settled law. Mr. Dallas, the able reporter of the case, adopts the argument as the law, and goes so far as to ask in a note, whether the death of the defendant, after final judgment, does not abate the writ. The case of Fitch v. Ross, 4 S. & R. 562, does not militate against this principle. If the opinion, delivered by the court in that case, be carefully examined, it will be found to sustain the proposition. In that case the death was after final judgment. The court treated it as a final judg- ment, and throughout the judge's opinion, he refers to that cir- cumstance, it being a final judgment, as justifying his opinion, that the attachment did not abate or dissolve by the death of the defendant. This is placing the law on its proper basis. By the final judg- ment a lien is created on the defendant's property. A simple con- tract debt is changed into a debt by judgment of law in his life- time. Thus the law of distribution of an intestate's estate is not im- paired. The plaintiff in the attachment does not obtain an undue preference. lie is placed in the same situation with a vigilant simple contract creditor, who brings his action of debt and obtains judgment against his debtor in his lifetime. Far different would it be, if the death of the party did not abate the attachment, under any circumstances; if death did not abate it after interlocutory but before final judgment. The writ can only issue against an absent debtor. He has no knowledge of the proceedings. lie is not represented in court or out of court. It is an ex parte pro- ceeding altogether and the claim may be entirely groundless. Yet under these circumstances a judgment is obtained for the debt? No, but to enable the plaintiff to issue his scire facias against the garnishce. By the judgment no debt is ascertained and fixed. It is merely interlocutory : Serg. on Attachments 20 ; 2 Arch. Prac. 25, 79. And yet, if the position contended for on the other side be correct, the plaintiff in the attachment, having such a judgment, would sweep away all the assets, to the great injury of the rest of the defendant's creditors. It appears by the proceedings had, under the insolvent laws of Maryland, that the note in question was returned by Fahnestock. in the list of his property, on the 4th September 1818. On the game day, a provisional trustee was appointed by the coinmis- 124 SUPREME COURT \_Chamberslurg [Mulliken r. Aughinbaagh.] sioncrs of insolvent debtors, to take possession, for the benefit of his creditors, of all his property, estate and effects, books, papers, accounts, bonds, notes and evidences of debt. The attachment did not issue until the 17th day of December 1818. Here then was such an assignment or transfer of the insolvent's effects, before the issuing of the attachment, as to divest him of his interest in the note, so as not to make it the subject of a foreign attachment. After the transfer, the payee of the note could not bring suit upon it, and ap- propriate it to his own use. He had pledged it for the benefit of his creditors generally. They had a direct interest in the legal and proper disposition of the money due upon it. They had a vested right, which could not be defeated by Fahnestock, his trustee, who held in trust for himself and other creditors, or by any other per- son. And yet, if the position taken by the other side be correct, we shall be presented with the strange anomaly in the administra- tion of justice, that through the instrumentality of a court of law, money is recovered on a note of hand, in the custody of the law, which the owner himself could not recover ; that a plaintiff in a foreign attachment, on ex parte proceedings, not much favored, and often leading to great injustice, could coerce the payment of money which had been previously appropriated to other specific purposes. The law, however, is well settled that the plaintiff in an attachment stands upon no better footing than his debtor : United States v. Yaughan, 3 Binn. 394. It is equally well settled, that after the transfer of a chose in action, or anything else, it ceases to be the object of a foreign attachment : 4 Dall. 279 ; 3 Binn. 394 ; Serg. on Attach. 80, 171, 170, 177, 181. The opinion of the court was delivered by GIISSON, C. J. It is a principle, both of British and American ju- risprudence, that personal property has no locality in respect of the succession, which is alweys according to the law of the domicile ; and the rule is extended by the English courts even to creditors. But in America, the rights of creditors not owing allegiance to the coun- try of the domicile, are generally if not universally determined by the lex loci rei situ-. In the application of the general principle to cases of foreign bankruptcy, the British judges, while admitting the validity of an involuntary assignment, even as regards their own subjects, have inconsistently denied to the bankrupt his share of the benefit under the commission, by subjecting him to the debts of British creditors, from which the certificate purported to be a discharge : Smith r. Buchanan, 1 East 0. It surely would be more just to the bankrupt, :is well as beneficial to the British creditor, to sustain an attachment of effects within the realm. The American courts act more consistently, if not more liberally, in giving effect to the commission as far as they can, without interfer- Oct. 1829.] OF PENNSYLVANIA. 125 [Mulliken v. Aughinbaugh.] ing with the claims of those who were not originally bound by it on the score of allegiance ; and this is, perhaps, all that foreign nations have a right to require, as comity is overstrained when it is bestowed at the expense of justice. In Milne v. Morcton, 6 Binn. 361, Chief Justice Tilghman has glanced at a distinction between things that are tangible, and therefore susceptible of actual locality, and things invisible (consisting of debts), of which he seems to suppose locality cannot be predicated the accuracy of which I may, with great respect for the opinions of that learned and excel- lent judge, be permitted to question. The English courts sustain the title of assignees under a foreign commission, on principles of courtesy, not right ; while the preference which we give to the title of creditors is founded, as we conceive, in duty to prevent foreign interference with the rights of our citizens or others not owing allegiance to the foreign government, over property which accident, consistently with justice and the laws, has subjected to their power. It can, therefore, make little difference in principle whether the existence of the property be actual or potential, provided recourse may be had to it under the process of our courts ; or whether it be corporeal or incorporeal, provided it be a subject of judicial cogni- sance, as in either case, it seems to me, a creditor would be bound by no transfer but that of the debtor himself. But the case at bar is free of difficulty on this or any other head, the attaching creditor being personally bound by the laws of Maryland, and consequently disabled from gaining an advantage inconsistent with those laws by any proceeding here. Whether, in the case of a creditor not thus bound, we should feel it a duty to exercise a greater degree of courtesy towards a sister state than towards a country with which we are connected by no political tie, is a question about which we intimate no opinion. AVhether the property was bound by the proceedings in Mary- land when the attachment was laid, is a distinct and material fact which ought to have been expressly stated, because not only the existence of a foreign law, but the construction which is part of it, is determinable, not by the court, but a jury. There is, however, in the statement of the case something like an agreement that the court shall pass on matter of fact, which may have been inserted to remedy this very defect. The plaintiff relies on the opinion of the Court of Appeals, delivered by Chief Justice Buchan in Brown t'. Brice, 2 Harris & Gill 24, in which it was ruled that the provisional trustee is a mere recipient of the property without power to assign it, or exercise any act of ownership in respect of it but that of a bailee. And from this it is evident that he has but a qualified pro- perty. But of what value to the argument is it that the ownership of the insolvent debtor was not divested if the property were // grcmio hyis .- And that it was it is impossible from the nature of 126 SUPREME COURT [Chambenlwg [Mulliken v. Aughinbaugh.] the case to doubt. The proceeding in cases of insolvency is a pro- cess of distribution among creditors, to accomplish which it is abso- lutely necessary that the law take possession of the fund. To this end it is provided in the " Act relating to insolvent debtors in the city and county of Baltimore," passed by the legislature of Mary- land in 181(3, that the provisional trustee "shall take possession for the benefit of the creditors of such insolvent debtor of all pro- perty, estate and effects, books, papers, accounts, bonds, notes and evidences of debt." Surely against such possession the courts of Maryland would not permit a creditor to gain a preference by exe- cution or otherwise ; and if such preference could not be gained there, a creditor bound by the laws of that state could use the pro- cess of the courts with no better success here. The property was therefore not subject to attachment by an inhabitant of Maryland ; not, however, because a foreign attach- ment may not issue at the suit of a non-resident (for that has never before been doubted), but because it was previously attached by the laws of Maryland, by which the plaintiff is bound. This decision of the preceding points relieves us from deciding whether the attach- ment abated by the death of the defendant between interlocutory judgment and the execution of a writ of inquiry of damages ; a nice and critical question, which we would not determine without more consideration than we have had time to bestow on it. Judgment affirmed. Referred to, 5 W. & S. 120 ; 2 Barr 85 ; 5 II. 94 ; 3 Gr. 134. Commented on, 2 W. & S. 131. Dictum corrected, infra, 388. See 3 May 1*55, 2 1 V. L. 415, extended 23 April 1857, \ 2 P. L. 298, and Philson c. Barnes 14 Wr. 234. Baily ayaiiist Herkes et al. IN ERROR. Parol evidence of the declarations of a testator at the time the will was written, may lx received in evidence, to HUpport a presumption that the legacy was redeemed by the testator in his lifetime. WRIT of error to the Common Pleas of Cumberland county. This was an action of debt brought by the plaintiff against the defendants to recover a legacy under the will of Elizabeth Snyder, deceased, which was bequeathed in the following words: "1 give and bequeath to John Baily, the boy that was living with me, and Oct. 1829.] OF PENNSYLVANIA. 127 [Trego v. Herkes.] my deceased husband in his lifetime, one hundred dollars." The will was dated 21st October 1824, and proved immediately after the death of the testatrix, on the 23d February 1826, arid read to the jury. The defendants then offered to prove, by the person who wrote the will, that while writing it, the testatrix said she wanted to pay John Baily $100, according to the request of her late husband, and asked the witness if it were inserted as a legacy in the will, if she could still pay it in her lifetime ; and he advised her to take a receipt for it, or pay it in the presence of a witness, and that before the death of said Elizabeth, she did in fact pay the $100 to John Baily. Which evidence was objected to by the plaintiff's counsel, on the ground that the bequest in the will is general, and cannot be qual- ified by parol evidence, so as to show any particular intention of the testatrix. The objection was overruled, and exception taken by the plaintiff. The following is the substance of the testimony then given : That David Snyder, the late husband of Elizabeth Snyder, the testatrix, made a will on the 18th July 1818, by which he bequeathed nearly his whole estate to his wife, and that before his death, which hap- pened the 16th February 1819, he said to his wife that he had intended to bequeath to John Baily $100, but at the time of writ- ing his will he had forgotten it, and then enjoined it upon her to give John Baily $100 out of his estate; that in October 1824, she communicated this injunction of her husband to the person who was at that time writing her will, and her intention to obey it ; and after the will Avas written, she told the witness that if Baily should stand in need of the money before her death, she would pay it to him. The will remained in the possession of the testatrix, and about a year after it was written, she sent for John Baily, and said to him, "that her husband had enjoined her to give him $100 out of the estate, and she had waited a good while for a favorable oppor- tunity, that it might go to a good use." She then went to the same desk in which her will waa, and got $100 in notes, and gave them to Baily. Her will remained in her possession, unaltered until her death, which happened two or three months afterwards. The court (Reed, president) delivered the following charge to the jury: There are two points involved in this case, one of law and the other of fact. It is contended that Elizabeth Snyder, hav- ing bequeathed $100 to John Baily, in her last will and testament, and that will having been duly proved after her death, that " the words of that will cannot be supplied, contradicted or explained by parol evidence, and that therefore the testimony of John Bear ought to have no influence upon the minds of the jury in making up their verdict." The legal position thus taken by plaintiff's counsel is 128 SUPREME COURT \_Chambersburg [Trego r. Ilcrkes.] correct enough, but the consequence does not follow which the plaintiff contends for. The will of Elizabeth Snyder is plain and unambiguous, and clearly imports an intention to give the legacy of $100 to John Baily. This is not and cannot be controverted by parol proof. But being admitted, it is competent for the defendant still to show that the legacy so intended was in fact paid in the lifetime of the testatrix. It would be a fraud if the law established any other rule. Taking a case where but one bounty is intended of $100, and provision is made by will for conferring that bounty, if paid in the lifetime of the testator, it would be against his will for the legatee to claim a second bounty of $100, afterwards, under the will. The law is then open for the jury to inquire, whether the $100 named in the will, and the $100 paid by Elizabeth Snyder, in her lifetime, constitute the same sum. If but one bounty was intended, and that was distinctly paid by Mrs. Snyder, in her life- time, in full and complete satisfaction of the whole, then the plain- tiff cannot recover. But if the two sums were different one intended as the bounty of her husband, and the other as her own bounty, then the plaintiff ought to recover. This is a question of fact for the jury; you ought to be well satisfied that the payment of the $100 in her lifetime was not in lieu of the same $100 men- tioned in her will, before you find for the plaintiff. In this court, the admission of the evidence mentioned in the first bill of exceptions, and the charge of the court, were assigned as errors. Watts, for plaintiff in error. The rule of law is unquestioned, that a will is not to be expounded by anything but itself; and this rule, as applicable to this will, is clearly expressed in the case of Innes v. Johnston, 4 Ves. 573, where it is said : "It turns out that there was among the assets one bond for the exact amount of the legacy ; but there were many other bonds belonging to the testator, and it was insisted, and very properly, that the court is to determine, upon the face of the will, whether the legacy be specific or pecuniary, and not to travel into the account of the effects, to see whether that shall be turned into a specific legacy, which upon the face of the will is to be taken as pecuniary." The same doctrine is laid down in Andrews v. Emmot, 2 Bro. C. C. 297 ; by Lord Eldon, in Nannoch v. Ilorton, 7 Ves. 400; in 1 Ves. Jr. 285, and in 1 Hop. on Leg. 273. There is a class of cases founded in the relation between parent and child, wherein a court of equity, without any intention expressed by the father, raises a presumption upon the natural obligation he owes to his child ; that a gift, either by deed or will, is intended not merely as a bounty, but a portion ; but the same presumption does not arise between the legatee and a stranger, or even a puta- tive father. Where a stranger or putative father gives a legacy for a particular purpose, expressed in his will, and afterwards advances 0un- can," were written in the handwriting of the judge, in the entry of this cause ; and again, on another list, certified in 1817, the word "settled." Mr. I), was counsel for the defendant, and these entries were never transferred from the trial-lists, but in 1823 they were on motion ordered to be stricken out, and in 182") a verdict and judgment rendered for the plaintiff': Htl. Boisselet, 9 Id. 128 ; Quantock et al. v. England, 5 Burr. 2630. Penrose and Carothers, contra, who referred to Fries r. Boisselet, 9 S. & 11. 129; Eckert . Wilson, 12 Id. 393; Weister's Adm'rs v. Gray's Adm'rs, 5 Binn. 573; Slocuin v. Perkins, 3 S. \ R. 295. The opinion of the court was delivered by SMITH, J. The original action was brought by the plaintiff in error against the defendants, on the llth of December 1823, to 136 SUPREME COURT [Chambersburg [Searifjht v. Craighead.] recover the value of certain goods sold and delivered. The defend- ants pleaded non assumpserunt, and non assumpsorunt infra sex anno*. Issues were joined, and, at the trial, a verdict was returned for the defendants, and judgment thereon rendered. Certain points had been presented to the court, to the answers to which excep- tions were taken by the plaintiff's counsel, and are now assigned here for error. Two errors have been assigned upon the charge of the court, on the subject of the Act of Limitations ; and in answer to the points put by the plaintff 's counsel. The court were requested to charge the jury, u That if Ege offered to pay one-third of the debt, the offer was effectual as to the whole debt, for if liable at all, he is liable for the whole." To which the court below answered (and so instructed the jury in their charge), " That the suit was a joint one, against the defendants as partners. The claim was against the three defendants, as liable jointly, and severally for the whole ; and that an offer by George Ege, under these circumstances, after suit brought, to the plaintiff's attorney, to pay him one-third of the debt; for the purpose of getting the lien of the whole judgment removed from his land, and the offer not accepted, would not in law remove the operation of the Statute of Limitations ; such an offer under such circumstances, would not remove the barrier against the plaintiff's recovery, if it otherwise existed. This point is vague and uncertain in its terms ; as applicable to the evidence in the cause, we cannot answer it in the affirmative. " It is unnecessary to consider it as an abstract proposition, not referring to any evidence in the cause." If this answer of the court be considered with reference to the law, as to an offer to compromise a disputed claim, nothing is better settled than that such an offer, not accepted, can never be used as evidence against the party who made it. This is abundantly clear from the case of Slocum <>. Perkins, 3 S. & II. 295. But if this answer be considered with reference to the time and substance, to which the evidence on which it is a commentary, relates, it then presents another question, which may be considered with the second error alleged, as it is involved in it. The plaintiff's counsel requested the court to charge the jury, " that a promise made after suit brought, is as effectual as if made before," which the court refused to do, and charged the jury in the negative of this proposition. It may be remarked, that the court below gave the plaintiff the full benefit of the evidence as to the declarations made by George Ege, " that, if the debt were a just debt, he would not plead the Statute of Limitations," as the court submitted it as a matter of fact from the evidence, whether this admission was qualified by the expression of unwillingness to pay, and a denial of the honesty of the debt, and indeed the plaintiff has not assigned specifically for Oct. 1829.] OF PENNSYLVANIA. 137 [Searight v. Craighead.] error, the charge of the court with regard to this evidence, although elicited by another point put to him. An able English judge had said, that the two best statutes in their books are the Statute of Frauds and the Statute of Limita- tions. Conflicting, and indeed inconsistent decisions, upon the latter statute, are, however, to be found in the English books of reports. Arid some of them are unquestionably a plain departure from the express provisions of this most salutary statute ; and at one period seemed to threaten it with destruction, by a kind of judicial legisla- tion ; and until lately a struggle seems to have been made to avoid the effect of it. It would appear, in tracing this subject, that at first, all agreed, that there must be an express promise to take a case out of the statute. Afterwards, it was decided, that an acknowledgment of the debt, was at the utmost only evidence from which a promi.se to pay might be inferred by the jury ; but if a bare acknowledgment only was found by them, it would not be sufficient. Then Lord Mansfield held, that a bare acknowledgment of a debt, even after action brought, would be sufficient to sustain the action, although not commenced, till after the expiration of the six years. And we are told (and that by an English judge), that this was adhered to till the principle was carried to such a degree of absurdity, that a declaration of a defendant that he would not pay (5 Maul. & Sel. 75), was held a sufficient acknowledgment to take the case out of the statute. The cases themselves csfn hardly give us further light, but rather tend to confuse and mislead ; and the force of precedent which they established for a long time, restrained judges from vindicating the statute, and placing its construction on rational grounds, although almost at every step, they mourned over the con- dition to which it had been reduced. Our own courts had followed these decisions to their full extent ; but the Supreme Court of this state Avas the first, or among the first, to discover that the decisions had gone too far and the case of Jones r. Moore, 5 Binn. 573, (and the decisions hereafter cited), led the way to a rational con- struction of cases under this law. In England, the courts have been retracing their steps, and have got, or are getting back to the plain construction and meaning of the statute. Reason, then, has at last prevailed over precedent, and the statute has been restored to what the legislature originally intended it to bo, a protection against stale and dishonest claims, the evidence as to which has been consumed by time, or otherwise lost. To take the case out of the Act of Limitations, an express promise to pay is not necessary, but if the plaintiff rely on admissions of the defendant, he must show such admissions as may fairly support the inference of such a promise. If. therefore, the admission be quali- fied in a way to repel the presumption of a promise to pay. or, if it 138 SUPREME COURT [Chamberdurg [Scnright v. Craighead.J be accompanied with words inconsistent with a promise to pay, it is not evidence of a promise to take a case out of the Act of Limita- tions : Eckert r. Wilson, 12 S. & R. 393 ; Roosewalt v. Waite, 6 Johns. Ch. 290 ; Clementson v. Williams, 8 Cranch 72 ; Fries v. Boisselet, 9 S. & R. 128. It is settled that the acknowledgment of a debt by one partner, after the dissolution of the co-partnership, is not sufficient to take the case out of the Act of Limitations as to the other partners : Bell r. Morrison et al., 1 Pet. 373, lately reported. But in the case before us, the admission, such as it is was, was not only after suit brought, and long after the Act of Limitations had run against the debt ; but after all connection had ceased to exist between the defendants as partners on their contract to make the road in 1814 ; for we find in 1821, the accounts were finally settled between them, and balances struck. The admission then was by one partner (taking it for granted that the defendants had been partners), after the dissolution of the copartnership, and after suit brought. I am aware that in the case of Jones v. Moore, 5 Binn. 573, it has been decided, that an admission, which takes a case out of the Act of Limita- tions, does not operate to revive the old debt; but is the evi- dence of a new promise, of which the old debt is the considera- tion ; but without stopping to inquire whether such admission, after suit brought, is sufficient in an ordinary case, we proceed to consider the other question involved. Is such admission, made by one partner at any time, after*the dissolution of the firm, effectual for this purpose? This part of the case has in fact been recently decided in two cases, which I will mention. The law is well set- tled, that after the dissolution of a partnership, the partners cease to have any power to make a contract in any way binding on each other. The dissolution puts an end to the authority, and operates as a revocation of all power to create new contracts. This prin- ciple, taken in connection with that already referred to, that the admission is evidence of a new promise of which the original debt is only the consideration, brings us to the conclusion, at which the Supreme Court has already arrived, after full argument, that the acknowledgment by a partner, after the dissolution of the copart- nership, will not take the debt out of the Act of Limitations, so as to make the copartners liable. This point was so decided in Philadelphia at the December Term 1827, of this court, in a case in which his honor, Justice Rogers, delivered the opinion of the court, which will be reported. It was also, a short time afterwards, so decided by the Supreme Court of the United States, at their January Term 1828, in the case above cited, of Bell v. Morrison et al., reported in 1 Pet. 3ol, 373, where, in the very able and elabo- rate opinion of that court, delivered by Mr. Justice Story, it is said, " that after the dissolution of a partnership, no partner can create Oct. 1829.] OF PENNSYLVANIA. 139 [Searight v. Craighead.] a cause of action against the other partners except by a new author- ity communicated to him for that purpose. It is wholly immaterial what is the consideration which is to raise such cause of action ; whether it be a supposed pre-existing debt of the partnership or any auxiliary consideration which might prove beneficial to them. Un- less adopted by them, they are not bound by it. When the Statute of Limitations has once run against a debt the cause of action against the partnership is gone. The acknowledgment, if it is to operate at all, is to create a new cause of action, to revive a debt which is extinct ; and thus to give an action which has its life from the new promise implied by law from such an acknowledgment, and operat- ing and limited by its purport. It is then, in its essence, the cre- ation of a new right, and not the enforcement of an old one. We think that the power to create such a right does not exist, after the dissolution of the partnership, in any partner." After this, to say more on this subject, or to run through a bead-roll of cases, for in- formation, when the case itself has been so recently decided by two of the highest tribunals, would really be an idle parade, or waste of time. It is only necessary to add that there is no error in the de- cision of the Court of Common Pleas, and the judgment is therefore affirmed. Judgment affirmed. Referred to, 2 P. & W. 305 ; 5 Norris 506, s. c. 6 W. N. C. 295. Doctrine followed and distinguished, Kaufl'inan v. Fisher et ux., 3 Gr. 302. Followed, 10 II. 1G2; 12 Wr. 253 ; 21 Smith 212. 140 SUPREME COURT \_Chambersburg Brady et al. against Colhoun et al. IN ERROR. Campbell, in 1805, bought of "W. 5000 acres of land, at $4 per acre. The purchase was at a credit of eight years, with interest at three per cent., after which the principal was to be paid at three, six and nine years, reserving six per cent, on unpaid balances. By settlement made in 1819, Campbell had paid the interest to W. up to that time, and ^4429. 42, on account of prin- cipal. In an action of assumpsit, brought in 1827, after Campbell's death, against the administrators of Colhoun, for money so paid to W., in which the evidence to charge the defendants consisted of a series of letters written by Colhoun to Campbell, from JiSO") to 1814, from which it appeared that Col- houn had been let into a participation in Campbell's purchase : Held, that six letters from Campbell to Colhoun, in a period of as many years from 1S14 to 1S20, in which there was no allusion to the subject, were evidence of the rescission of the agreement between Campbell and Colhoun. The liability of Colhoun to contribute for the payments of Campbell whether more or less than his proportional part, would depend on whether the parties had agreed to apportion the profit or loss, which was a fact for the Ther.e may be a partnership to trade in land, and it may, as in any other case, be limited to purchasing only, the profit and loss being divisible as stock; but this relation does not necessarily or naturally arise from the bare circumstance of a joint purchase. Joint purchasers, without an agreement of partnership, would not be entitled to the remedies, nor subject to the responsibilities of partners. If Campbell, a* a joint purchaser, paid all the interest as it became due, a right of action fora moiety of each payment accrued instantly to him against Colhoun, which would be barred by the Statute of Limitations when six years had run before suit brought. The court below charged the jury, that if the contract were not rescinded between Campbell and Colhoun, the former could recover for interest paid. The jury found & general verdict for defendants. Hcll<'. The case in 10 Johns, went upon a different principle. There the liability remained, and the defendant's land was subjected to it. Now. by the recovery of the land in ejectment bv the college, all the right 1 P. & V\". 10 146 SUPREME COURT [Ckambenlurg [Brady v. Colhoun.] of the college to call on Campbell or Colhoun is gone ; although it be true that the vendor in such case holds as a trustee for the ven- dee, who may redeem. It is impossible to ascertain on what point the jury found or that they were influenced in their finding by the charge of the court on this point. When the court told the jury that as t9 the principal we had no right to recover, it may have induced the jury to believe that we had no right to recover on account of interest ; and the court will not sustain the judgment upon a conjecture that the jury found on another point, because by possibility they may have so found. The opinion of the court was delivered by GIBSON, C. J. The evidence to charge the defendants consisted of a series of letters written by Colhoun, from which it would seem he had been let into some sort of participation in Campbell's pur- chase. All allusion to the subject, however, having been discon- tinued on the part of Colhoun for a period of thirteen years, the defendants offered as additional evidence of the rescission of their agreement, six letters written by Campbell in a period of as many years, in which, also, there is no allusion to the subject, although it had at one time been a leading topic of their correspondence. We cannot admit that these letters were irrelevant, because the writer was silent on the subject of the agreement; on the contrary, they were relevant for that very reason. In connection with the lapse of thirteen years of silence on the part of Colhoun, the silence of Campbell for at least six, was a powerful circumstance ; and were the objection of irrelevancy to prevail here, it must necessarily pre- vent a party, under any circumstances, from being affected by silence, which, though often more significant than words, has no positive allusion to anything. Neither do we admit the force attempted to be given to the objection that the defendants may have suppressed all but such parts of the correspondence as suited their purpose. As to that the plaintiffs had a right to examine them on oath ; and this, I understand, though tendered, was declined. In respect to the charge, it seems to me that both parties put to the court as a conclusion of law, what was properly a matter for the jury the supposed liability of the defendants to contribution for the payments of Campbell whether more or less than his propor- tional part. It is obvious that this depended, in the first instance, on whether the parties had agreed to apportion the profit or loss ; which is of the essence of partn^rx/iip. Although it be by no means common, there may be a partnership to trade in land ; and it may, as in any other case, be limited to purchasing only, the profit or loss being divisible as stock ; but this relation does not necessarily or even naturally, arise from the bare circumstance of the parties having purchased jointly. The existence of partner- Oct. 1829.] OF PENNSYLVANIA. 147 [Brady v. Oolhoun.] ship as deducible from facts and circumstances, is not for the court but the jury ; and in submitting propositions supposed to result from the evidence as conclusions of law, the plaintiffs abandoned the notion of a partnership having existed in fact, and went to the court on the supposed liability of the defendants as representing a joint purchaser. Then, to put the case as favorably to them in point of fact as it will bear, we must suppose the parties had agreed to stand, as between themselves, in the relation of joint purchasers, each separately paying his share of the price, without being bound to bear an equal share of the loss ; and in this aspect it is clear, they would not be entitled to the remedies, nor subject to the re- sponsibilities of partners. The purchase was at a credit of eight years, with interest, at three per cent.; after which, the principal was to be paid at three, six and nine years, reserving six per cent, on unpaid balances. Colhoun was taken into the purchase as if, it may be supposed, he had been originally concerned ; and if Camp- bell paid, as there is reason to believe he did, all the interest as it became due, he paid a moiety of it to the use of Colhoun, for which a right of action instantly accrued, but which was subsequently barred by the Statute of Limitations. Laying partnership out of view, as the parties themselves have thought fit to do, there was no agreement for advances, nor anything which looked to the settle- ment of a final account. It even was not part of the agreement that they should contribute to a common fund. The advances of Campbell were in pursuance of his original liability for the whole, and they became demandable, not by virtue of any previous con- tract with Colhoun, but the contract which arose from the fact of payment, by implication of law. There was nothing to prevent Campbell from maintaining an action for a moiety of each payment the instant it was made ; and I therefore cannot concur in the opinion expressed at the trial, that the statute was not a bar. The same obstacle would present itself to a recovery of the principal, were it established that Campbell paid more than his share. He made various payments and the jury were instructed that he had paid nothing to Colhoun's use, it being taken for granted that he had at no time paid more than his proportion of the instalment last due. Now the fact would depend on the manner of the appropria- tion, it being abundantly clear that a debtor may apply his pay- ments to any particular debt or account, at his election : and had the plaintiffs desired the court to put the cause to the jury on the fact of Campbell's having paid any particular instalment in full, it would have been error to refuse it. They, however, thought fit to put the whole to the court as a matter of law, and it seems to me, therefore, that the principle assumed being right, we cannot say there was error in the application of it. There is, however, another ingredient beside the Statute of Limi- tations, by which a defect in this part of the case would be cured. 148 SUPREME COURT \_Chambersburg [Brady v. Colhoun.] It appears from the whole matter, that the jury went on a distinct ground of fact, the rescission of the contract. On no other ground could a verdict have passed for the defendants, as any application of the rule laid down, would have produced a balance to the plaintiffs. The Statute of Limitations being put out of the way, (whether erroneously or not, is at present immaterial), the plaintiffs would have clearly been entitled to a moiety of the moneys paid to keep down the interest. It being clear then, that the jury found on a distinct question of fact, Avhich was decisive of the cause, it would he oppressive to reverse for a misdirection in law, if such, there were, which did not relate to it. A court of error invariably dis- regards whatever has not contributed to the event ; so that had there been misdirection in other parts of the case, it would have been insufficient to avoid the consequences of the verdict. Judgment affirmed. Referred to. 7 Barr 171 ; 10 Id. 168; 13 Smith 341 ; 17 Id. 299. Followed, infra, 370 ; 6 Wb. 302 ; 5 H. 523. Moore against McBride. IN ERROR. In un action commenced by capias, a short minute of a recognisance of special hail, taken by the clork of a prothonotary, in this form, " K. M. held in 2 Capias debt on note under seal not ex- James A. Mitchell. J ceeding 3200. Bail in 3200. Robert McBridc held in 3200 coyn. coram Edward Leonard, for John P. Hclfcnstcin, Proth'y, 5th May 1824. C. C. and special bail entered. (Sh'ff 32.12.) In this suit the plaintiff obtained judgment upon report of arbi- trators for $167.65, to recover which, after the proper executions, this scire facias was issued. Penrose, for the plaintiff in error. A short minute of a recogni- sance is sufficient, provided it indicate the nature of the recognisance, Oct. 1829.] OF PENNSYLVANIA. 149 [Moore . McBride.] so that the officer may make it out at large when it is required : Com- monwealth v. Emery, 2 Binn. 431. A short note such as "A. B. m 40. to appear, c.," was held to be sufficient: 4 Burns's Just. 84, 18th ed. In this case there could be no other recognisance but that of special bail. This is abundantly indicated by the docket entries ; and if neces- sary, the court would consider the words " C. C. and special bail," alleged to be the return of the sheriff, as part of the recognisance in order to sustain the proceeding. He also cited Welch et al. v. Vanbebber et al., 4 Yeates 509, and 1 Barnes 4. Alexander, for the defendant in error. It is admitted that a short minute of a recognisance is sufficient, provided it show the amount and the condition upon which the recognisor is bound. But this recognisance is without the most important feature of a recognisance, a condition ; nor is it at all indicated by any part of the minute. It does not appear whether the undertaking was abso- lute or conditional ; and it follows that there is nothing from which the officer can make it into form. The scire facias set forth a recognisance of special bail ; this min- ute does not show such a recognisance, for it does not indicate in any way the condition of such recognisance. The Commonwealth v. Emery, cited on the other side, is an authority for us. It is there decided that the short minute of the recognisance should substantially show the condition of the recogni- sance. The words "C. C. and special bail," are manifestly the return of the sheriff, and form no part of the recognisance. The opinion of the court was delivered by HUSTON, J. We readily forget that we once learned, and nothing is sooner forgotten than forms of proceedings in foreign courts, which we have scarcely learned, because we supposed them not to bo important here. Every lawyer has looked into Compton or Scl- lon, or some of those books of practice which so properly gave the precise forms of entry in the several stages of the cause. Tidd's Practice, in two volumes, in which we have no forms, has, in a great degree, superseded the former authors. In many respects the short minutes, in this state, are not made precisely in the words used in England, or in other states. 1 do not admit, however, that in this respect the difference is against us. In the science of pleading we are, perhaps, generally much inferior; and our short notes of pleas, replication and issues, have brought obloquy on our practice : and that far beyond what the truth required. The worst of it is. that this reproach in some mouths takes a wider range, and extends to everything good or bad, and this pretty much in proportion as the censurer is unqualified to judge. I speak generally, with no refer- 150 SUPREME COURT [Cliamberslurg [Moore v. McBride.] ence to this cause, for there has been less occasion for the observa- tion here than we meet every day. For the benefit of those who have forgotten the forms in other countries, I will transcribe from Sellon the form of entering special bail in the King's Bench and Common Pleas in England : 1 Sel- lon's Practice 139. In the King's Bench it is In the Common Pleas the fila- taken before the judge's clerk, azer attends with his book, and although when filed it is a rec- names of parties, &c., and a short ord. After the words of the re- entry is made to be drawn into cognisance are repeated to the form. If the filazer cannot at- bail, and he agrees to become tend, a bail-piece is made in this bound, the bail-piece is made out form : in this form : In the Common Pleas. Easter Term, in the 32d year of the Easter Term, 3lM of George III. reign of George III. Stormant and Way. Middlesex, to wit, capias against Middlesex, ) A. B. is delivered to A. B., late of W., yeoman, at the suit to wit, ) bail on a cepi corpus, to of C. D., for 2001., upon promises re- C. D. of C. of London, turnable, &c. mercer, and E. F. of N. Affidavit for London, hatter. 100J. J. S. attor- Taken and ) Bail are E. F. of C. uey. At the suit of acknow- > London, hatter, and G. Sworn to J. K. lodged. ) II. of London, mercer. 1QOL Defendant bound in 200Z. Each 4th May 1792. of bail in 50/. If the bail be not excepted to, this bail-piece is carried to the proper office, in the respective courts, no other entry as bail, or of the terms of the recognisance, is ever made. It is drawn into form if the record be wanted, or declared on, as if entered at full length if necessary to sue it. In every country and age where law is practised, abbreviations, short notes, and technical words are used in cases of daily or hourly occurrence, to save labor, "When properly understood, they answer every purpose of setting everything out at large. These short notes or abbreviations vary in different states ; nay, here in different courts : but if admitted at all, one is as good as another, provided it indicates with certainty what was done. Here there was but one kind of bail known to the law, in that stage of the cause, and but one form of recognisance which could be taken. It cannot be pre- tended that any difference of opinion can exist as to what the bail engaged. I'he special bail is named, and the sum in which he is bound ; and this is subjoined to the statement of the suit on the the docket, the date is added, and the name of the prothonotary's Oct. 1829.] OF PENNSYLVANIA. 151 [Moore . McBride.] clerk ; it is impossible that there can be any mistake as to any one matter essential in the case. The form used in this case is at least as certain as that used in England ; this is said for those who think nothing right but what is English ; it has every requisite. Once admit that a short note of the entry of the bail is good, and that used here is as good as any other ; and any other, indicating all that this does, is as good as this. Something was said about its being taken by the prothonotary's clerk, and not by the prothonotary himself. This court has given an opinion on that more than once, lately. I would just observe that in England, the recognisance, when filed, is a lien on land, as much as a judgment, and always must be taken before a judge; in point of fact it is always taken by the judge's clerk. Judgment reversed, and judgment entered for the plaintiff in error. Followed, 6 Wh. 361 ; 7 H. 359. 152 SUPREME COURT [Chambersburg Himes against Jacobs et al. Where suit is brought against the personal representatives of a deceased debtor, with notice to the tenants in possession 01 the land upon which the debt is alleged to be a lien, and the tenants appear and make defence, they are concluded by the verdict and judgment; although they may not in fact have put in issue the question of lien ; and in an ejectment brought by a sheriff's vendee under that judgment against such terre-tenants, they will not be permitted to controvert the lien of such debt. It is a rule of pleading that whatever is not contested at the proper time, is conceded. In Pennsylvania, whore lands are assets for the payment of debts, it is most just to afford the terre-tenant, who is the party to be affected, an oppor- tunity to contest the debt, and the plaintiff may do so. Even where the terre-tenants have been called upon prematurely, still, if they avail themselves of the occasion, and have a fair opportunity to make a full defence, they are concluded. WRIT of error to the Court of Common Pleas of Adams county. The case was an action of ejectment, brought by the plaintiff in error, who was plaintiff below, to recover a tract of land ; and both plaintiff and defendant made title under John Ross, deceased, in whom it was admitted it was originally vested. The plaintiff claimed by virtue of a sheriff's deed, which was made to him upon a judgment obtained at the suit of Isaac Boyers and Abraham Boyers, against Sample Ross and Samuel Ross, executors of John Ross, deceased, with notice to the tenants in possession. The proceedings in that suit were material to his title, and so far as they are so, are here given at length. DOCKET ENTRY. Isaac Boyer and Abraham Boyer, ^ No. 135, April term, 1823. v. Summons debt 1510A 5s. Sample Ross and Samuel Ross, exe- Sheriff Gilbert returns cutors of the testament and last will of John Ross, deceased, witli notice to Anthony Deardorff, David Ross, and others, tenants in possession of the real estate of said John Ross, deceased. Stevens and Siveney, for plaintiffs. McConoughy, for terre-tenants. served on Anthony Dear- dorff, David Ross, Sic. Narr. filed. Defendant pleads pay- ment, with leave, -6; Kean /. Ellmaker, 7 S. &'R. l-o. 158 SUPREME COURT [Chambersburg [Himos v. Jacobs.] The verdict is general, and if it were between the plaintiffs and terre-tenants, it would bind them personally which cannot be. The plea put in was "by the defendant," and not by the terre- tenant, and he can in no way be affected by it. The opinion of the court was delivered by GIBSON, C. J. Land being assets for payment of debts, may be seized in execution in the hands of the heir, on a judgment exclu- sively against the executor 1 who has no occasion to do more than discharge himself of eventual liability in respect of the personal assets ; and, therefore, nothing is more common than to pray judg- ment of the land after the executor has discharged himself on plene administravit. Surely it would be more just to afford the terre- tenant who is the party to be affected, an opportunity to contest the debt ; and it has never been supposed that the plaintiff may not do so. Where it is doubtful whether the land has not been dis- charged in the hands of a purchaser, the reason for affording him an opportunity to show the fact is not so urgent, because a judg- ment against the executor, being conclusive only of the existence of the debt; the question of lien may, with equal advantage, be tried in an ejectment by the sheriff's vendee. Still, where the terre-tenant has actually appeared and had an opportunity to make a full defence, even though he may not have availed himself of it, he is concluded to every intent. In Heller v. Jones, 4 Binn. 61, a younger judgment-creditor who had appeared to a scire facias and given notice that he would insist on collusion in the concoction of the original judgment, but had afterwards taken no part at the trial, was precluded from controverting the fairness of the judgment in an ejectment by a purchaser under it ; and this on the ground that he had in fact had a opportunity to try the question and neglected it. The principle of that case is in accord- ance with a rule, not merely of pleading, but good sense, that what- ever is not contested at the proper time is conceded. Even had the terre-tenants here been called in prematurely, still they availed themselves of the occasion, and had as fair an opportunity to make a full defence, as if the proper time to do so had not been antici- pated. They came in to show that the land was not debtor; and this they were competent to do, either by disproving the debt or nullifying its lien ; each of which was open to them as an available ground of defence, and there is no reason why they should be suf- fered to use but one and reserve the other. That is the naked point, here, as their right to do so, is evident from the proceedings in the original action. The plaintiff brought debt on bond against the executors of the obligee, with notice to terre-tenants who had purchased from the heir, and claimed to hold the land discharged. The executors confessed judgment ; but the terre-tenants went to trial on the plea of payment, and it was found against them. Now Sec, 114 February 1X34, g 34 P. L. bO. Oct. 1829.] OF PENNSYLVANIA. 159 [Ilimes . Jacobs.] I am not going to say what may be given in evidence under that plea. The question of lien was tried or it was not. If it was tried, it will not be pretended that it ought to be tried over again ; and if it might have been tried under a proper plea and was not, then the case is within the principle of Heller v. Jones, and the terre- tenants are concluded just as if the fact had been expressly found against them. That case, however, is by no means so strong in circumstances. There the younger judgment-creditor had only given notice of an intended defence, without proceeding further ; here the terre-tenants actually went to trial, and were necessarily bound to bring forward their whole defence ; so that, notwithstand- ing the lien was clearly gone, yet having missed the opportunity to show it, we are of the opinion they are concluded. Judgment reversed, and venire de novo awarded. HUSTON, J., and SMITH, J., dissented. Commented on, 2 Norris 33. Followed, 5 W. 299. CASES IN THE SUPREME COURT OF PENNSYLVANIA. LANCASTER DISTRICT DECEMBER ADJOURNED COURT, 1829. Bank of Pennsylvania against Haldeman et al. IN ERROR. Upon the allegation of forgery, it is not necessary to produce, as wit- nesses, all the persons in whose possession the forced paper had been, in order to identify it its identity is a matter of fact for the jury. A comparison of handwriting is admissible in evidence in civil cases in cor- roboration of a belief of a witness founded upon actual knowledge. The testimony of an expert, who speaks alone from his knowledge and skill in handwriting, is not competent to establish a forgery. When the Court of Common Pleas erroneously permit evidence to be given to the jury, no such evidence being afterwards given, this court will not reverse the judgment. If an executor, upon the settlement of an account of his testator, allows i credit for a check, this is not such an administration of this part of the assets as will preclude an administrator de lionis mm from sustaining an action to recover the amount of the check, which lie proved to be a forgery. A promise laid in one count, as having been made to the testator in his life- time, and in another as having been made to his administrators after his death, is not such a misjoinder of counts as will be fatal to a general verdict and judgment. Wherever the funds to which the money and the costs are to he applied, or out of which the costs are to be paid, are the same, and the money when recovered would be assets, then the counts may be joined. WHIT of error to the District Court of Lancaster county. IP. & W. 11 162 SUPREME COURT [Lancaster [Bank of Pennsylvania r. Jacobs.] The defendants in error were plaintiffs below, and brought an action on the case, against the Bank of Pennsylvania, to recover the sum of $2500, w j tn interest from the 22d March 1819, under the following circumstances : Samuel Jacobs, the plaintiff's testator, was a depositor in the Bank of Pennsylvania, which in the year 1819, paid six checks signed "Samuel Jacobs," the last of which was for $2500, and dated 22d March 1819, and for the amount of which this suit is brought. Samuel Jacobs, the testator, died on the 14th April 1819, having first made a will and testament, by which he appointed William Coleman and James Coleman to be his executors. Afterwards, on the 5th June 1819, William Coleman went to the bank, with the testator's bank-book, and had it settled, including the check of 32500 in the settlement, and received from the bank the six checks. Upon his return to the late residence of his testator, some of the heirs doubted the genuineness of the check of the 22d March 1819, and one of them pronounced it a forgery. On the 2d July 1819, Mr. Coleman returned to the bank, and brought with him the checks and book, which were examined by the cashier and others, and then thought to be genuine, and Mr. Coleman was of the same opinion ; and said that the heirs wished him to bring suit against the bank to recover the money, but unless they could produce some proof to him, he would not do it. On the same day, the balance in favor of Samuel Jacobs, of $2587.69, was transferred by the check of William Coleman, to the credit of William Coleman and James Coleman, executors of Samuel Jacobs, deceased, with whom the account continued till 10th January 1821, when it was finally closed, and the balance of $389.24, drawn out by William Coleman. On the 3d January 1821, William and James Coleman settled a final account of their administration of the estate of Samuel Jacobs, and were discharged by the Orphans' Court ; when letters of administration de bonis non, with the will annexed of Samuel Jacobs, deceased, issued to Jacob M. Iluldetnan and Richard T. Jacobs, who gave to William and James Coleman, a receipt and acquittance in full for the balance in their hands. The following declaration (the joinder of counts in which was assigned as error), was filed : LANCASTER COUNTY, ss. The president, directors and com- pany of the Bank of Pennsylvania, were summoned to answer Jacob M. Haldeman and Richard T Jacobs, administrators of all and singular the goods and chattels, rights and credits, which were of Samuel Jacobs, deceased, left unadministcred, with the will of the said Samuel Jacobs, deceased, annexed of a plea of trespass on the case, &c. And whereupon, the said Jacob and the said Richard, by Gcorye W. Jacobs, their attorney, com- Dec. 1829.] OF PENNSYLVANIA. 163 [Bank of Pennsylvania v. Jacobs.] plain, That, whereas, the aforesaid president, directors and com- pany, on the first day of March, in the year of our Lord, 1819, at the county aforesaid, were indebted to the said Samuel Jacobs, now deceased, in his lifetime, in the sum of $5000, lawful money of the United States, for so much money by the said president, directors and company, before that time had and received, to and for the use of said Samuel Jacobs, now deceased. And being so indebted, they, the said president, directors and company, in con- sideration thereof, afterwards, to wit : on the day and year last aforesaid, in the county of Lancaster aforesaid, undertook, and then and there faithfully promised the said Samuel Jacobs, now de- ceased, in his lifetime, to pay him the said last mentioned sum of money, when they, the said president, directors and company, should be thereunto afterwards requested. Yet the said president, directors and company, not regarding their said promise and undertaking, but contriving and intending to deceive and defraud the said Samuel Jacobs, in his lifetime, and the said Jacob and the said Richard as administrators, as aforesaid, after the death of the said Samuel Jacobs in this behalf, have not as yet paid the said sum of money, or any part thereof, to the said Samuel Jacobs in his lifetime, or to the said Jacob or the said Richard, administrators aforesaid, since the death of the said Samuel Jacobs (although often requested so to do), but they so to do have hitherto wholly refused, arid still do refuse, to pay the same or any part thereof to the said Jacob and the said Richard, as administrators as aforesaid. And whereas, also the said Jacob M. Haldeman and Richard T. Jacobs, administrators of all and singular the goods, chattels, and credits, which were of Samuel Jacobs, deceased, left unadminis- tered, with the will of the said Samuel Jacobs, deceased, annexed, complain against the president, directors and company of the Bank of Pennsylvania., for that whereas, heretofore to wit : on the 24th day of December, in the year of our Lord, 1823, at the county of Lancaster aforesaid, the aforesaid president, directors and company were indebted to the said Jacob and the said Richard, as administra- tors as aforesaid, in the sum of $5000, lawful money of the United States, for so much money by them, the said president, directors and company, to the use of the said Jacob and the said Richard as administrators as aforesaid, before that time had and received : And being so indebted, they, the said president, directors and com- pany, in consideration thereof, afterwards, to wit : on the day and year last aforesaid, undertook, and then and there faithfully pro- mised the said Jacob and the said Richard, administrators as aforesaid, to pay them the said sum of money last mentioned, whenever after- wards they the said president, directors and company should be thereunto afterwards requested. Yet the said president, directors 164 SUPREME COURT [Lancaster [Bank of Pennsylvania r. Jacobs.] and company, not regarding their said promise and undertaking, so as aforesaid made, but contriving and intending to deceive and de- fraud the said Samuel Jacobs in his lifetime, and the said Jacob and the said Richard, as administrators as aforesaid after the death of the said Samuel Jacobs, in this behalf, hath not as yet paid the said sum of money, or any part thereof, to the said Samuel Jacobs in his lifetime, or to the said Jacob and the said Richard, as admin- istrators as aforesaid, since the death of the said Samuel Jacobs, although to do the same, afterwards, to wit : the 2d day of January, in the year of our Lord, 1824, at the county of Lancaster aforesaid, they were required ; but the same to pay to them, the said Jacob and the said Richard, as administrators as aforesaid, they the said president, directors and company have hitherto wholly refused and still refuse to pay the same, or any part thereof, although often requested so to do to the damage of the said Jacob M. Ilaldeman and Richard T. Jacobs, as administrators as aforesaid, in the sum of $7000. And therefore they bring this suit, c. JOHN DOE and ) Pledges of d ) Pledget i, f Proseci RICHARD ROE, f Prosecution. And the said Jacob M. Ilaldeman and Richard T. Jacobs, bring here into court the letters of administration in due form of law, which give sufficient evidence to the said court here, of the grant of administration to the said Jacob arid said Richard as aforesaid. The pleas were non assumpsit, and payment with leave, &c., replication, non solvit. Issues. The plaintiffs, to maintain the issue on their part, called Mr. Ogilby, the cashier of the bank, to whom the six checks were ex- hibited, and who said, " I presume these are the same checks I gave to Mr. William Coleman ; I believe the checks to be the same." They then offered to read the checks to the jury ; to which the defendant objected, which objection was overruled by the court, and the evidence admitted, which formed the first bill of ex- ceptions. General Foster, being sworn as a witness, and having said that he was well acquainted with the handwriting of Samuel Jacobs ; the plaintiff proposed to ask him this question: "from voiir know- ledge of the handwriting of Samuel Jacobs, and from comparing the check of March 22d 1811), with those parts of the check of Jan. 20th, Jan. 21st, Feb. 4th, March 1st, and March 21st 1819, which you have stated to be in his handwriting, what is your opinion and belief as to the signature and body of the check of March 22d 1811), being in the handwriting of Samuel Jacobs ;" to which the defendants objected, but the. objection was overruled and evidence given, which formed the second bill of exceptions. Dee. 1829.] OF PENNSYLVANIA. 165 [Bank of Pennsylvania r. Jacobs.] The plaintiffs then offered to prove, " that John Eberman in and has been cashier of the Farmers Bank of Lancaster for twelve years; that William White was cashier of the Lancaster Bank for seven years prior to October 1824; that John Schmidt is and lias been cashier of the York Bank for ten years ; and that the said Eberman, White and Schmidt are and have been for the said num- ber of years experienced and skilled in the examination of bank- notes, checks and other writings, with a view and for the purpose of detecting forgeries." And to prove by said witnesses that in their opinion and belief the check of 22d March 1819 is not the handwriting of Samuel Jacobs, nor any part thereof, said opinion and belief being formed from comparing the said check with the signature and whole check of January 20th 1819 the signature to the check of January 21st 1819 the signature and whole check of February 4th 1819, excepting the marks and figures at the head " 35Q=:00" the signature to the check of March 1st 1819, and with the whole check of 21st March 1819; which have been testi- fied by John Former, Henry Alward and Joseph Wallace to be in the handwriting of Samuel Jacobs, and that in their opinion and belief the part of the check of March 22fZ 1819 which is in writing is written in an imitated character or traced hand. To all which the defendant objected, but the court admitted to go in evidence that part of the offer which is in italic letter, which formed the third bill of exceptions. John Eberman was then sworn, and said, " that he had been cashier of the Fanners' Bank of Lancaster eleven years ; that lie was often called upon to detect forgeries ;" as to the check in ques- tion, he said, " from the appearance of this check I could not say that it is imitated ; I never saw Mr. Jacobs write ; I do not know his handwriting at all." The witness was then shown the check of the 21st March 1819, and the plaintiffs offered to prove by him, " that in the beginning of the year 1824, or about that time, this check of the 21st March 1819, with the other five, were exhibited to the witness ; that at that time, in the word March, the h had a singular turn at the end of it, which the witness will describe : that the witness was not certain whether it was ink or some other sub- stance which adhered to the paper: that the witness touched it witli his pen-knife to ascertain what it was, and it came off the mark of it being yet visible, or nearly so, on the paper ; and that the said mark was precisely similar to the mark at the end of the h. in the word March, on the check of 22d March 1819, for $2f>00," which was objected to, objection overruled and testimony admitted ; which formed the fourth bill of exceptions. John Schmidt, the witness mentioned in the third bill of excep- tions, as to the check in question said : " I would not undertake to 6ay whether that be a traced or fair hand ; 1 should suppose it a 166 SUPREME COURT [Lancaster [Bank of Pennsylvania r. Jacobs.] slow hand ; I would consider it a stiff hand. It would be necessary for me to compare it with other writing to ascertain whether it is a traced hand or not ; I am not acquainted with the handwriting of Mr. Jacobs." William White was not sworn at all. The plaintiffs then offered to prove by Christian Brubaker "that in the winter or spring of 1819, as executor of one Kyser, he sold a plantation to Samuel Jacobs, for $4000, payable on the 1st April 1819 ; that witness wanted money to loan to his brother, and went to Mr. Jacobs and got in advance $1000, on the 22d March 1819, by a check on the Office of Discount and Deposite, at Lancaster, here shown, and erroneously dated 21st March 1819 ; that soon after that, Mr. Jacobs got sick, and witness never saw him again ; witness went to his house or office, on the 1st April 1819, but found him so sick that he did not see him ; the balance of the money due witness was paid in cash by William Coleman, after Mr. Jacobs's death" which evidence was objected to by the defendant, the objection overruled by the court and testimony admitted, which formed the fifth bill of exceptions. The plaintiffs having closed their testimony, the counsel for the defendants, before they proceeded to open their case, moved the court to withdraw from the consideration of the jury the six checks given in evidence, on the ground that they had not been legally identified ; and to overrule all the evidence given on the part of the plaintiffs, except that contained in the first twelve lines of the judges' notes of Mr. Ogilby's testimony ; which the court refused to do, and which formed the sixth bill of exceptions. The defendants, to maintain the issues on their part, now offer, after the evidence already given, the inventory exhibited on the 22d May 1819, by William and James Coleman, executors of Samuel Jacobs, deceased, to the register of the county of Lebanon, and also the administration account of the said executors, exhibited 1st December 1820, and finally passed arid confirmed on 3d Jan- uary 1821, and, in connection witli those, a receipt and acquittance from Jacob M. Haldeman and Richard T. Jacobs, administrators de bonis non then appointed, bearing date 3d January 1821, the said receipt and acquittance having been given by the said adminis- trators de bonix non to the aforesaid executors, to which the plain- tiffs objected, the court sustained the objection, which formed the seventh bill of exceptions. The defendants' testimony being closed, the plaintiffs made the following offer: "The defendants having given in evidence by Mr. Ogilby, that the check of $2">00 was paid to a boy ; the plaintiffs now offer to prove that Christian Brubaker sent his check of $1000, dated 21st March 1819, to the bank, by a boy out of Ober and Kline's store that the boy who went to the bank for the money Dec. 1829.] OF PENNSYLVANIA. 167 [Bank of Pennsylvania v. Jacobs.] was about twelve or fourteen years of age, who returned in a few minutes and brought the money with him," to which the defendant objected, the objection was overruled, and testimony admitted, which formed the eighth bill of exceptions. The testimony being closed, the defendant propounded to the court the following points, upon which they were requested to charge the jury : 1. That after probate of the will and a grant of letters of admin- istration, an executor is the only legal representative of the testator, for the purpose of settling his estate. That in the settlement of the personal estate, at least his powers are limited only by the laws of the land, or by an express restriction in the will. That he may collect debts and pay creditors, settle or compound for outstanding accounts, and that so far as regards the debtors and creditors, the settlement is final arid conclusive, and can never be inquired into or overhauled by any succeeding executor or administrator de bonis non. 2. That an administrator de bonis non is confined by his very appointment, to the administration of such portion of the estate as was unadministered by his predecessors. 8. That as it is an uncontradicted proof, that W. Coleman, one of the executors duly appointed of Samuel Jacobs, deceased, did on the 5th June 181 ( J, settle the accounts of his testator with the office of Discount and Deposite at Lancaster, and approved of its correctness ; and at that time received and took into his possession all the checks then remaining in the said office; including the one dated 22d March 1819, the subject-matter of this suit; and as he. on 2d July following, after full knowledge of the suspicions enter- tained by some of the heirs as to the genuineness of the above- mentioned check, drew by his check of 2d July 1819, in the name of Win. Coleman, executor of Samuel Jacobs, deceased, the whole balance then due to his testator by the said office, viz. : 2587.09, and afterwards deposited the same to the credit of William and James Coleman, executors of Samuel Jacobs, deceased, that this was such a settlement as must completely protect the present defendants. 4. That as it is in express proof, by the letter of administrations de bonis non given in evidence by the plaintiffs, that subsequently to the 2d of July 1819, the date of the settlement with the ollice of Discount and Deposite, as set forth in the preceding point, Win. and James Coleman, executors of Samuel Jacobs, deceased, settled their administration-account on the said estate, and that the same was approved of by the Orphans' Court of the county of Lebanon, before they were discharged from their trusts as executors aforesaid: and as the said account remains until this day in full force and un- appealed from, that this is such an administration of this part of the 168 SUPREME COURT [Lancaster [Bunk of Pennsylvania v. Jacobs.] assets, as must entirely prevent the present plaintiffs from recover- ing in this suit. 5. That as the money, the subject-matter of the present suit, was voluntarily settled for, and paid by the executors of Samuel Jacobs, deceased, to the present defendants, and by them received without any fraud or unfair practice, it could never be recovered even by the executors themselves, and d fortiori not by the admin- istrators de bouts non. 6. That it is well settled as a general rule of evidence, that the best Evidence the nature of the case will admit of must be pro- duced ; and as it is in proof that Wm. Coleman, to whom Joseph Ogilby, the witness, delivered the checks, was present, attending the trial of this cause ; and as the plaintiffs have not thought proper to call him to prove the identity of the six checks read in evidence to the jury, and particularly the check of 22d March 1810, for 2500, now alleged to be counterfeit, and to recover the amount of which, with interest, this suit is brought; the plain- tiffs therefore cannot recover, and the jury must find for the defendants. 7. That the belief of the three witnesses, Joseph Ogilby, John Elder and George Beckel, as to the identity of the check of 22d March 1819, is not evidence, that it is the same check that was paid by Joseph Ogilby; the plaintiffs must prove the actual fact of identity, and not having done so, they cannot recover in this suit. 8. That mere belief is no evidence, except from necessity; and when the party has it in his power to prove the actual fact, he must do so, and nothing short of that is evidence. And wherever there is an allegation of forgery, as in this case, it is indispensably neces- sary to prove the identity of the thing alleged to be forged ; and as the plaintiffs (if the fact were so), had it in their power to prove that this was the identical check paid by Mr. Ogilby, and have not so proved, they have failed to maintain their action and the verdict must be in favor of the defendants. 9. That the opinion and belief of witnesses, in regard to the genuineness of writing, must be founded upon the impression made upon their minds by the handwriting itself; and opinion or belief founded not upon this, but upon extrinsic circumstances, is prima facie evidence of the genuineness of the instrument in question. WILLIAM JENKINS, JOHN It. MONTGOMERY. CHARGE OF THE COURT. This is an action on the case, brought by the administrators de bonia non of Samuel Jacobs, deceased, against the Bank of Pennsylvania, to recover from that institution 32500, which the plaintiffs allege was improperly credited to the bank, in the deposite account of the deceased, on a check which 1829.] OF PENNSYLVANIA. 1C9 [Bank of Pennsylvania v. Jacobs.] they allege is forged, dated on the 22d March 1810, for that sum. Administrators de ftonis non are administrators after the first ad- ministrators or executors of a deceased have died, or have been dis- charged by the proper authority from their trust. Their office is to administer the goods and chattels of the deceased, which have not been administered by the first administrator or executor ; and one of the questions that arise in this cause, of which the court will give you their opinion presently, is, whether the money in question has been administered upon by William and James Coleman, who were the executors of the will of the deceased. 1st point. The executors of a deceased are, during their contin- uance in office, the only representatives of the deceased, in relation to his personal property, and in the discharge of their trust in settling and managing the personal estate, their power is limited only by the law and the will of the testator, whom they represent. They may collect debts, pay creditors, and settle and compound for outstanding accounts. In this case the defendants contend that the executors, on the 5th of June 1819, made a settlement of the ac- count between the estate of Samuel Jacobs, deceased, and the bank ; and that on the 2d of July afterwards, they recognised the settle- ment by drawing from the bank the balance due on the books of the institution, and depositing it to their credit as executors. That in the settlement there was comprised, as one of the items of credit to the* bank, the sum of $2500, which the bank had paid on the check of the 22d March, now alleged to be forged. The plaintiffs deny that this was a final settlement of the accounts between the bank and the estate, and allege that no examination of the items took place by the executors who made it, and contend that it amounts to no more than receiving on their part, from the bank, what ap- peared due on its books. . Whether the executors, or any one of them, did examine the account and approve of it, and make a final settle- ment, is a matter of fact for your consideration. If they did not make a final settlement with the bank, but only received from the institution what appeared to be due on its books, then, if the check in question be a forgery, and the bank has taken credit for it, and has not paid it to the executors, the $2500 in question are a part of the estate of the deceased, which was not administered upon by the executors, and may be recovered in this action. A settlement made by an executor between the estate of the tes- tator and one who is indebted to it, is so far final and conclusive upon the subsequent administrator de bonis non, who is appointed after the executor resigns or dies, that he cannot overturn it. unless he can show, by clear and satisfactory evidence, that there was a mistake in such settlement, or some fraud practised on the executor, by which such debtor obtained a credit against the estate, to which he was not in law or justice entitled. If he can so make out such 170 SUPREME COURT [Lancaster [Bank of Pennsylvania v. Jacobs.] mistake or fraud, the administrator de bonis non may recover the amount of such mistake as goods of the deceased which have not been administered by the executor. To apply this rule to the pres- ent case. If the jury are satisfied that the check in question of the 22d of March 1819, for $2500, is the same check for which the bank, in the settlement with the executors got a credit of that sum ; if they are also satisfied that the'check is a forged paper, and that in the settlement the executors of Samuel Jacobs supposed it to be genuine, and under that mistake on their part, it was credited to the bank, then the 2500 in the check mentioned may be recovered by the present plaintiffs as so much of the estate of the deceased Samuel Jacobs, which did not come to the hands of his executors, and was not administered by them. 2d point. The administrator de bonis non is confined by his ap- pointment to the administration of ^uch portions of the estate as were unadministered by his predecessor. 3d point. In answer to the third point the court say : whether the facts be as they are stated in this point the jury must judge, but taking them to be all true as they are stated, it does not follow, as an unconditional conclusion of law, that the plaintiffs cannot re- cover. If such fraud or mistake happened in the settlement, if one was made, as the court has mentioned, and the jury are satisfied of the identity of the check in question, that it is forged, and that it was credited in the settlement by the executors under a mistaken idea that it is genuine, as the court has already said, the plaintiffs may recover. If the jury be of opinion that the executors did, on the 5th of June 1819, make a settlement of the account between the estate and the bank, and that afterwards, on the 2d of July 1810, and after they had their attention drawn to the subject by being in- formed of the suspicions of some of the heirs that the check in ques- tion was a forgery they confirmed it, they will take it into consid- eration, together with the lapse of time from July 1819, before the bringing of this suit, when they come to make up their opinion on the question, whether the check of 22d March 1819, is a forgery or not. 4th point. In answer to the fourth point the court say, That the recitals in the letters of administration de bonis non, given in evidence by the plaintiffs, must be taken to be true. They show that before the granting of them, the executors had settled their account, as stated in this point. The presumption of law is, that the account, so settled by the executors, contained a full and per- fect account of all the assets of the deceased, which had come to their hands at the time they were discharged from their trust, and that it was duly settled and approved by the proper authority. Whether the settling of the administration account by the exe- Dec. 1829.] OF PENNSYLVANIA. 171 [Bank of Pennsylvania v. Jacobs.] cutors, as stated in this point, was an administration of the part of the assets of the deceased, now in question in this suit, depends on the fact, whether the $2500, mentioned in the check in question, had previously to that time, come to the hands of the executors. If they had received the money in question from the bank, the plaintiffs could not recover in this suit, whether they charged them- selves with it in their administration account or not. If they charged themselves with it in their administration account, settled by them, they have administered on it, and the plaintiffs cannot recover, whether they have received it of the bank or not. If they neither received it from the bank, nor charged themselves w^th it in their account, then the settling of an account, as mentioned in this point, would not be an administration on this part of the assets of the deceased, and the plaintiff is not, on that account, prevented from recovering. 5th point. In answer to the fifth point the court say, Where money is paid by one man to another in such circumstances, that the party who receives it may, in good faith and conscience retain it. But when a bank has credit allowed to it in a settlement with an individual, for a check it has previously paid out, this is no pay- ment by the individual to the bank, whether the check be genuine or forged. If it be a genuine check, the bank of course cannot be called on again for the money if it be forged it can. 6th point. To the sixth point the court say. In a prosecution for a forgery of a bank note, it is necessary for the prosecutor to show, either that there is some particular mark on the paper charged to be forged, by which it can be identified, or he must produce every person who has had the custody of it since it was passed by the prisoner, to make out the identity. But the court is of opinion, this strictness is not necessary in civil cases ; in criminal cases the prosecutor is himself a witness, and therefore can form a link in the chain of proof of identity ; but in civil cases the plaintiff can- not be examined, and therefore, if it were necessary to produce as a witness in court, every person who has had custody of the paper, when it had come to the hands of the plaintiff, the identity could not be made out, except in cases where some particular mark had been put on it. Secondary evidence is such as indicates, that there is better evidence behind, in the power of the party, which he declines to produce. Whether William Coleinan could have identi- fied the check in question better than the witnesses who have been examined, is entirely contingent ; they had passed out of his hands into the hands of the plaintiffs. The court is therefore of opinion, that the plaintiffs were not bound to produce William Coleman, to prove the identity of the check in question. Whether they be the same checks which were by the bank delivered by William Cole- man, is a matter of fact, which must be submitted to the jury. 172 SUPREME COURT [Bank of Pennsylvania r. Jacobs.] 7th point. In answer to the seventh point the court say, Mere belief of a witness unacquainted with the matter touching what is to be examined, is certainly no evidence. The witnesses who speak on the subject of the identity of the check of the 22d March 1819, are the cashier of the bank, J. Ogilby, and George Beckel, who was at the time a clerk in the institution ; both of whom had seen it in bank, and John Elder, who had seen it while it was in the custody of William Colenian. You have heard what these witnesses have said on the subject. The fact that the check given in evidence of the 22d March 1819, is the same, or whether the bank had the 82")00 in question in this suit, is an important one in this cause, and before the plaintiffs can recover, they must make it out by clear and satisfactory evidence. If the evidence before you, satis- fies your minds of the fact, that the check given in evidence is the same check, you may find it without any more positive proof. If you are not satisfied of this fact, your verdict ought to be for the defendants. 8th point. The court have already in substance answered this point. The court have submitted to you the question of fact in relation to the identity of this check of 22d of March 1819, as well as of the other checks. It is for you to judge, whether the evidence gives you entire satisfaction or not. If it does not, you ought to find for the defendants ; if it does, then you will find the fact of 'the identity, as the court have referred it to you. 9th point. The opinion of a witness in regard to the genuineness of a writing, must be founded on impressions made on his mind by handwriting itself. When a witness is called who knows the hand- writing of the person whose name is alleged to be forged, ami he is of opinion, without referring to facts extrinsic of the writing, that it is a genuine paper, his evidence must go to the jury as prima facie evidence of the genuineness of the paper. If such a witness cannot say, on examining it, whether it is genuine or not, without recur- ring to extrinsic facts in relation to it, it proves either that it is the hand of the person who purports to have written it, or that it is so good an imitation that it is very difficult to discriminate between it and the genuine writing of the person. Finally, the case submitted to your consideration is an important one, not only on account of the amount in controversy, but on account of the nature of the facts which you are to determine. The plaintiffs allege that the check in question of the 22d March 1819, i.s the same check on which the bank paid out the $2500, for which this suit is brought, and that it is a forgery. If they have made out these facts by evidence which satisfies your minds, they can recover ; but if they have failed in proving either of them to your satisfaction, they cannot recover. In this court the following errors were assigned : Dec. 1829.] OF PENNSYLVANIA. 173 [Bank of Pennsylvania v. Jacobs.] 1. The court erred in admitting in evidence the checks objected to by the defendant's counsel, and enumerated in and made the sub- ject of the first bill of exceptions. 2. The court erred in permitting the plaintiffs to give in evi- dence the matters contained in and made the subject of the second bill of exceptions. 3. The court erred in permitting the plaintiffs to give in evidence that part of the offer marked in italic letter, and recited in, and made the subject of the third bill of exceptions, 4. The court erred in permitting the plaintiffs to give in evidence the matter contained in, and made the subject of the fourth bill of exceptions. 5. The court erred in permitting the plaintiffs to give in evidence the matters contained in, and made the subject of the fifth bill of exceptions. (j. The court erred in overruling the motion made by the coun- sel of the defendants, and contained in, and made the subject of the sixth bill of exceptions. 7. The court erred in refusing to allow the defendants to give in evidence the matters contained in, and made the subject of the seventh bill of exceptions. 8. The court erred in admitting in evidence, on the part of the plaintiffs, the matters contained in, and made the subject of the eighth bill of exceptions. I). The court erred in their answers to the first, third, fourth, fifth, sixth, seventh and eighth points, proposed by the counsel for the defendants. 10. There is a misjoinder of counts in the declaration, and the general verdict rendered thereon is erroneous. 11. The declaration sets forth no cause of action on the part of the plaintiffs. Montgomery and Jenkins for plaintiff in error. 1st bill. Mr. Ogilby having parted with the possession of the checks, and they having passed into the hands of several persons afterwards, his testimony was not sufficient so to identify the checks as to make them competent evidence to go to the jury. If a witness who identifies a forged paper has parted with the possession of it for a time, the person into whose possession it was put by him must be called: Commonwealth r. Kinnison, 4 Mass. 04l>. :M bill. Although the witness had seen the testator, Mr. Jacobs, write, and knew his handwriting, yet he was permitted to ansut-r the question, not predicated upon his knowledge, but upon the com- parison of the handwriting in the check in question, with other checks admitted to be genuine. A comparison of handwriting i.s never allowed except in corroboration of testimony derived from 174 SUPREME COURT [Lancaster [Bank of Pennsylvania r. Jacobs.] knowledge of the handwriting. It is never admitted of itself, to destroy, but to support other testimony : Norris' Peake's Ev. 154 ; Jackson ex dera. v. Vandusen, 5 Johns. R. 144; Vickroy v. Skel- ley, 14 S. & R. 372 ; Dacosta v. Pirn, Appendix to Peake's Ev. 42. 3d and 4th bills. The testimony admitted was that of an expert in judging of handwriting. This point is new in Pennsylvania, and that very circumstance is a strong argument against the neces- sity of adopting such a rule of evidence. The ordinary ties which induce many witnesses to speak the truth will not operate upon the mind of an expert ; if he falsifies he need not fear detection, for he does not speak of facts, but his own opinion. It would be dangerous to create such a class of witnesses, who would be operated upon by their own fancied ingenuity or dexterity in detection. The doctrine is repudiated in 2 Stark. Ev. 658. 5th bill. Circumstances unconnected with the paper alleged to be forged, is incompetent evidence: Norris' Peake 154. 6th bill. It is competent for the court to withdraw illegal evi- dence from the consideration of the jury ; and that the evidence was illegal, is argued in the foregoing bills. 7th bill. 'It had appeared in evidence that at the time the inven- tory was taken, Mr. Ilaldeman, one of the present plaintiffs, who is also one of the heirs, was present, and saw the balance struck in the testator's bank book, predicated upon the allowance of the amount of this check to the bank ; and the testimony offered and rejected by the court was for the purpose of establishing the fact that he had acquiesced in that settlement by permitting the admin- istration account of the executors to be settled without objection, predicated, as to that part of the administration, upon the settle- ment made by Mr. Coleman with the bank several years before, which ought to have had a powerful influence upon the jury. 8th bill. The testimony was not rebutting. Oth bill. (To the charge of the court.) 1st, 2d, 3d arid 4th points. The duties of an administrator de bonin nan are limited to the management of such goods of the tes- tator or intestate, as have not been administered by the executor or previous administrator, or mixed with his own ; and, therefore, the subject-matter of this suit having been acted upon and settled by the executor, the administrator dc Ionia non has no power over it : 3 Bac. Ab. 19; Grout v. Chamberlain, 4 Mass. 611. If the exec- utor erred in that settlement, the heirs may look to him to correct that error as it respects their interest: Allen v. Irwin, 1 S. & R. 549. The act of an executor is conclusive upon all persons inter- ested in the estate: Jacob i 1 . Ilarwood, 2 Ves. 267; Nugent v. Giffard, 1 Atk. 463 ; Moore's Cases 494. In Packman's Case, 6 Coke 19, it is decided that the act of an executor, although fraud- ulent, is binding against the second administrator, but it is other- Dec. 1829.] OF PENNSYLVANIA. 175 [Bank of Pennsylvania v. Jacobs.] wise as to creditors. If there had been collusion between the bank and William Coleman, the executor, or if.it had been a mere gift by the latter to the former, the heirs or legatees may pursue the fund into the hands of the bank ; but there is no necessity for the interference of the administrator de bonis non, for the fund has alrea'dy been passed upon, administered, by the personal, legal rep- resentative of the estate : Petre v. Clark, 11 S. & II. 377 ; Skinner 143; Com. Dig. 271, tit. Administrator; 2 Eq. Ca. Ab. 424. If an executor settles a claim of the estate, and takes from the debtor his note for a balance due, the administrator de bonis non can never recover that balance from the executor or his representative : Wankford v. Wankford, 2 Salk. 306 ; 2 Veritris 502 ; Vernon 173. Upon the settlement between the bank and the executor, taking the mistake for granted, the bank had and received the money for the use of the executor, and on this ground the administrator de bonis non cannot recover. 5th point. When the settlement took place between the executor and the bank, each party had a full knowledge of all the facts ; and upon that knowledge the executor exercised his discretion and allowed this check to be credited to the bank ; and the matter thus rested for four years arid upwards, by which the bank was lulled into security, and all hope of detecting the forger and saving itself was gone when this suit was brought ; may not the defendant, under these circumstances, ex equo et bono, now refuse to pay the money? On this point were cited, Levy v. The Bank of the United States, 1 Binn. 27 ; Morris v. Tarin, 1 Dall. 147 ; Rapalje v. Emory, 2 Id. 51. Money cannot be recovered from a defendant, which good conscience does not require him to refund : Willing r. Peters, 12 S. & R. 177 ; Deichman v. Northampton Bank, 1 Rawle 54. Gth, 7th, 8th and 9th points have been argued in the first, second and third bills of exception. There is a misjoinder of counts in the declaration. The promise to pay is the subject-matter of the action, upon which the right to recover must depend : the first count lays the promise to have been made by the defendant to Samuel Jacobs in his lifetime ; the second lays it to have been made to his administrators, the present plain- tiffs, in 1823. Such counts cannot be joined: 2 Saund. 117 ; Ben- net v. Verdeen, 2 Ld. Raym. 841 ; 1 Arch. Prac. 59, 60; 2 Penn. Prac. 397. In all cases of promises made to or by an executor or administrator, after the death of the testator or intestate, the action is personal, and therefore different from an action upon a promise by or to the testator, where the action must be in the representative character: Grier v. Huston, 8 S. & R. 402 ; Wolfersberger r. llurher, 10 Id. 11-13. The misjoinder is not cured by the verdict : Stro- hecker r. Grant, 16 S. & 11. 237. Suppose the verdict to have been for the defendant, what would 176 SUPREME COURT {Lancaster [Bonk of Pennsylvania v. Jacobs. | be the judgment thereon as respects costs ? On the first count the judgment for costs would have been against the estate ; on the second, it would have been against the administrators personally. Porter and Ellmaker, for defendant in error. 1st bill. The identity of the checks was a matter of fact for the jury, and the court could not have withheld them on the ground that sufficient evidence had not been given to satisfy the jury that they were the same which the executor had received out of bank. The checks had been in the possession of the plaintiffs in this suit, who could not have been examined. The Commonwealth v. Kinnison, 4 Mass. G46, is a criminal case, wherein strictness is required, and is not applicable to this principle involved in a civil suit. It was alleged by the plaintiffs that the check of the 22d March 1819, in question, was made in the bank, by tracing the handwriting of Mr. Jacobs from the other checks, hence the importance of letting all the checks go to the jury. 2d bill. The evidence offered, and to which exception was taken, was not matter of opinion derived from a comparison of handwriting, but was the judgment of the witness, predicated upon his knowledge of the handwriting of Mr. Jacobs, aided by a comparison of the alleged forgery with genuine signatures ; being a much stronger and more satisfactory kind of evidence than knowledge without the aid of a refreshed memory. The case of Vickroy v. Kelly, 14 S. & R. 372, is that a comparison of handwriting alone is not evidence in case of a public officer ; from which the inference is strong that if connected, as in this case, with actual knowledge of the handwriting, it is good evidence. On this point were cited, Farmers' Bank v. Whitehill, 10 S. & 11. 110 ; Homer v. Wallis, 11 Mass. 309. But what rendered the evidence peculiarly proper, was that we alleged that the check in question was traced from the other checks. 3d bill. A person who is an expert may be permitted to testify whether a writing is a traced hand or original and genuine : Lodge v. Phiphcr, 11 S. & R. 333; Hubley v. Vanhorn, 7 Id. 185. But even if the Court of Common Pleas should have been in error in the admission of this evidence, under the circumstances this court will not reverse the judgment on that ground, for no evidence was given by the plaintiffs in pursuance of their offer, by which the de- fendant was prejudiced. 4th bill. The evidence offered was merely to show the original state of the check of the 21st March 1819, from which as to the word "March," we alleged the check in controversy was traced. oth bill. It would be strange, indeed, if no evidence dehors the paper alleged to be forged, would be competent to prove the forgery. Other evidence may be absolutely conclusive, such aa Dee. 1829.] OF PENNSYLVANIA. 177 [Bank of Pennsylvania v. Jacobn.j proof that the person whose name is alleged to be forged was sick, hud his arm broken, was out of the county or was under some other disability ; and the cireurnstarice of evidence being clear and satisfactory upon the point of inquiry, is a good reason to conclude that it is legal. 7th bill. This evidence was irrelevant there is no mention made, either in the inventory or administration account of the check in question or the money in the Bank of Pennsylvania the inventory was made on the 22d June 1819, and the settlement with the bank not until the 2d July following. The evidence would have had a tendency to embarrass, rather than to elucidate the case. 8th bill. If it was important for the defendant to give in evidence, by Mr. Ogilby, that the check in question was paid to a boy, it was equally important for the plaintiffs to prove that Mr. Ogilby was mistaken, that it was another check, in favor of another person, that was paid to a boy ; which was the evidence offered and given. 9th bill. (To the charge of the court.) As to the duties of an administrator de bonis non, were cited the Stat. 17 Car. 2, which is in force in Pennsylvania ; Turner v. Da- vies, 2 Saund. 149; 3 Bac. Abr. 20. When an executor actually administers a fund or part of the assets of the estate, the adminis- trator de bonis non would afterwards have nothing to do with it : but the money now claimed by the plaintiffs never was adminis- tered by the executors ; on the contrary, they disclaimed having anything to do with it, "unless the heirs would furnish them proof to establish their right to recover it," which was not done. Cer- tainly, if the heirs had furnished that proof to the executors at any time before they went out of office, they could have maintained the action, and if the right of action existed in the executors when they went out of oilice, it survives to the administrators dt' bonis non. An executor, having in his possession a bond due to his testator, demands the amount from the obligor, who produces the receipt of the obligee in full, with which the executor is satisfied, and so ex- presses himself; can it be, that, after the death or resignatioii of the executor, the administrator dc bonix non, upon the discovery that the receipt is a forgery, cannot sustain a suit upon the bond '.' That case and the one before the court seem to be parallel as respects this point. If then the facts turn out to be such, as that the money is recoverable from the bank, who but the administrator dc bout's non can sustain the action? not the heirs, for if the estate should turn out to be insolvent they should not have the money and not the creditors, for it could not be determined whirli of them would be entitled. If this suit is not rightly brought, it follows that the estate of Mr. Jacobs is entitled to the money, and. has no remedy to recover it. I i>. & W. 12 178 SUPREME COURT [Bank of Pennsylvania v. Jacobs.] 10th error. The money recovered upon either of the counts in the declaration would be assets of the estate ; they are therefore rightly joined : Malin v. Bull, 13 S. & 11. 441 ; Stevens v. Gregg. 10 Id. 234 ; Strohecker v. Grant, 1G Id. 237. The opinion of the court was delivered by SMITH, J. The defendants in error, who were plaintiffs below, brought an action of assurnpsit, for money had and received, against the plaintiffs in error. The cause was tried on the plea of non- assurnpsit, and payment with leave to give the special matters in evidence. On the trial, various bills of exceptions were taken by the defendants, to the admission and rejection of testimony, and to the charge of the court. It became necessary to decide whether a certain paper, purporting to be a check, on the Office of Discount and Deposite for $2500, dated the 22d of March 1819, signed "Samuel Jacobs," payable to himself or bearer, and which was ac- tually paid at the office, was a genuine check or not. The defend- ants in error alleged that this paper was a forgery, and to prove their allegation, it was necessary to establish its identity ; or in other words, that the paper offered in evidence was the same which was received and paid in bank. Mr. Ogilby, cashier of the bank, de- clares that the bank paid the check to a little boy, on the 29th March 1819. On Thursday, the 25th of March 1819, in the afternoon, Samuel Jacobs was violently attacked with a cramp in the stomach, took to his room, and did not leave it until he was a corpse he died on the 14th of April 1819. On the 5th of June following, William Coleman, one of the executors of Samuel Jacobs, deceased, took his bank book to the bank to ascertain the balance due him ; the cashier settled the book and returned it to him, to- gether with this and other checks. These checks were afterwards given to Jacob M. Ilaldeman, and by him to others. After the plaintiffs had proved, by Mr. Ogilby, the cashier, Samuel Jacobs s bank book, the various entries of credits in it (enumerated all in the state of the case), the settlement made in it on the 5th of June 1819, and that he, the cashier, presumed the checks produced to be the same checks he had given up to William Coleman, that he knew nothing to the contrary, but believed the checks to be the same, and that he had filled up the one of the 1st of March 1M9, for ^2000, at the counter of the bank they offered to read to the jury the above-stated entries in the bank book and the checks aforesaid. To this offer, so far as respected the reading of the checks to the jury, the defendant's counsel objected. The court overruled the objection and permitted the whole to be read and this forms the first bill of exceptions. It is contended that the papers admitted, had not been sufficiently identified, that the question was whether the check was a forged one or not, and that therefore it could not Dec. 1829.] OF PENNSYLVANIA. 179 [Bank of Pennsylvania . Jacobs.] be read to the jury, unless all were called in whose hands it had been, nor unless the witness had marked the check before he had parted with it. It is true the question was whether the check was forged, but that question was for the jury, and therefore the evi- dence offered, was clearly admissible to establish the point of iden- tity which was involved in it. Whether it was satisfactory and sufficient for that purpose, it was for the jury to decide; but being relevant, the court could not do otherwise than refer it to them, with the check, in order that they might exercise their judgments upon that point, as well as upon the principal question. We are of opinion that the evidence was sufficient to entitle the plaintiffs to read the checks to the jury. After the plaintiffs had read to the jury the several checks, six in number, including the check alleged to have been forged; and had proved by John Forster that he had seen Samuel Jacobs write frequently draw checks in bank ; that from the opportunity which had been given to him to examine this check (having looked again at all the six checks), he believed no part of it to be in the handwriting of Samuel Jacobs, and also, that he had been in the habit of corresponding for many years with him on business and had proved by Henry Alward that he had seen the late Samuel Jacobs write, and that from the knowledge he had of his handwriting, and taking every part of the check, he would say it was not his hand, and taking the whole check as it appeared, date, filling up and signature, he would say it was not his handwriting, and had proved by Joseph Wallace that he had often seen Samuel Jacobs write, had dealt with him during the years 1812, 1813 and 1814, and received many letters from him, and seen him sign receipts for money paid, and that from his knowl- edge of the handwriting of Samuel Jacobs (and after looking at the check of 22d of March 1819), taking the whole of it together, he believed it not genuine ; the plaintiffs offered to ask Mr. Forster, " from your knowledge of the handwriting of Samuel Jacobs, and from comparing the check of March 22d 1819, with those parts of the check of January 20th, January 21st, February 4th, March the 1st, and March 21st 1819, which you have stated to be in his hand- writing, what is your opinion and belief as to the signature and body of the check of March 22d 1819, being in the handwriting of Samuel Jacobs?" To the offer so made, the defendant's counsel objected, but the court allowed the question to be put, and this on the second bill of exceptions, is assigned for error. The question was properly allowed to be asked, according to the opinion of this court, in the case of the Farmers' Bank of Lancaster v. Whitehall, 10 S. & K. 110, in which it was decided that comparison of hand- writing was admissible in evidence in civil cases, whore it was in corroboration of other evidence, which tended strongly to support the fact in dispute. Three witnesses, Mr. Forster being one, had 180 SUPREME COURT [Lancaster [Bank of Pennsylvania r. Jacobs.] declared the check not to be the handwriting of Samuel Jacobs; the proposed offer was not to establish solely from comparison of hands, that the check was a forgery, but in confirmation of other testimony already received, strongly tending to the same point, tc show that the signature and body of the check of the 22d March 1819, was not the handwriting of Samuel Jacobs. Under such cir- cumstances then, I apprehend, it was competent evidence to go to the jury, and after the opinion and belief of the witness was known, for him to compare the contested signature with other writings ad- mitted to be genuine. It would seem to me that where a witness has seen the person write, and declares he knows his writing, he may compare it with writings which he has seen the person write, or which are admitted he wrote, and he may give his opinion and belief on the comparison, at least such testimony, may go to the jury, who, and they only, are to compare and decide whether the witness is correct or not as to the writing in controversy. The court below then were right in permitting the question to be asked. 1 I come to the third bill of exceptions. After the court had allowed the check to be thus compared with other genuine checks, and the jury to hear the opinion and belief of Mr. Forster in rela- tion to it, the counsel for the plaintiffs proposed to go a step further, and to prove " that John Eberman is, and has been cashier of the Farmers' Bank of Lancaster for twelve years ; that William White was cashier of the Lancaster Bank for seven years, prior to October 1824; that John Schmidt is, .and has been cashier of the York Bank for ten years ; and that the said Eberman, White and Schmidt are, and have been, for the said number of years, experienced and skilled in the examination of bank notes, checks and other writings, with a view, and for the purpose of detecting forgeries, and that in their opinion and belief, the part of the check of March 22d 1819, which is in writing, is written in an imitated character or traced hand." 2 And this the court admitted them to prove, though objected to by the defendant's counsel. It was, in fact, permitting experts, as they are called, who never sYiw Mr. Jacobs write, from their professed knowledge or skill in handwriting, to prove solely, from comparison, whether what purported to be the handwriting of Mr. Jacobs in the disputed check was counterfeit or not. This cannot lawfully be done. It would have been error had the witness actually proved what was proposed to be proved by them. This opinion is fortified by the decision in Lodge and another v. Phipher and Lloyd, 11 S. & R. 33#. The question there, was, whether a receipt in the name of Reuben Haines was forged or not; it was . l Sec, however, Travis r. Brown, 7 Wr. 0. 1 An expert can testify ax a pure matter of pcicnre, whether the writing in question is feigned and simulated, or natural and genuine : Travis v. Brown, 7 Wr. 9. Dec. 1829.] OF PENNSYLVANIA. 181 [Bank of Pennsylvania v. Jacobs.] alleged to have been forged by a certain William Shaw, deceased. The court below permitted Israel Pleasants, on the ground of his being an expert in the examination of writings, to give his opinion, whether the receipt and the papers proved to have been written by Shaw, were the same handwriting. This, says the late chief justice, was giving very great weight to matter of opinion, greater, I think, than it was entitled to, for Pleasants did not pretend to know anything of the handwriting of Ilaines or Shaw, nor did he form any opinion, but from the naked comparison of hands. The judgment was therefore reversed. The case under consideration, up to the time of this offer, had been placed before the jury on the evidence of those who could legally give some direct testimony, and on legal proof by com- parison of this check with the others. But if witnesses were to be called in, and asked on oath, what conclusions they would draw, it would, in fact, be adding so many men to the jury, in other words, it would be permitting others to advise the jury what verdict they should render ; it would not be trying the cause by twelve men returned by the sheriff drawn and sworn, but by them, together with as many others as a party could find, who would swear that the evidence was or was not satisfactory to their minds. It appears, however, that when the witnesses were examined, they could not, arid did not prove what was proposed ; for Eberman testified, that from the appearance of the check, he would not say that it was imitated; and Schmidt that he would not undertake to say, whether it was a fair or a traced hand. White was not called. So that it is evident the defendants suffered no injury from this decision of the District Court. Now in Allen v. Rostain, 11 S. & K. 302 ; it is said to be a general and well-known principle, that one shall not assign that for error, from which he has suffered no injury, for the administration of justice is not promoted by reversing a judgment for an error by which no injury has been sustained. However improper, therefore, the proposed testimony would have been, yet not being given, the opinioh of the court below, as to its admissi- bility, cannot be assigned for error; nor can the judgment on this ground be reversed. As to the error assigned in the fourth bill of exceptions : the plaintiffs offered to prove on the trial the actual state of the check of the 21st of March 1819, in the beginning of the year 1824, that at that time, in the word "March," the letter "//" had a singular turn at the end of it, that it was then touched with a pen- knife to ascertain whether it was ink or some other substance which adhered to it, and on this touch it came off, the mark of which being still visible on the paper : and that the said mark was pre- cisely similar to the mark at the end of the " h" in the word "March," on the check of the 22d of March 1819, for 2000. In 182 SUPREME COURT [Lancaster [Bank of Pennsylvania v. Jacobs.] the admission of this proof, I cannot perceive any error. These circumstances conduced to establish the forgery, and were therefore properly laid before the jury. The fifth error assigned demands only a passing remark. The plaintiffs having given proof of Mr. Jacobs's money concerns and payments, that he was a man of great accuracy in regard to his money, both as to receiving and paying it out, and that no traces could be found of having paid away this money, offered to prove by Christian Brubaker, that in the winter or spring of 1819, as executor of one Kyser, he sold a plantation to Samuel Jacobs for $4000, payable on the 1st of April 1819, that the witness wanted money to loan to his brother, and went to Mr. Jacobs, and received in advance $1000, on the 22d of March 1819, by a check on the same bank at Lancaster} offered to be shown, and erroneously dated the 21st of March 1819 ; that soon after that Mr. Jacobs took sick, and witness never saw him again ; that witness went to his house, on the 1st of April 1819, but found him so sick that he did not see him, nor ask to see him, that the balance of the money due the witness was paid in cash by William Coleman after Mr. Jacobs's death. Why this was objected to, I am at a loss to conceive. It was evidence, even if it weighed but a feather, in the cause; when, however, it is considered, that it was known Mr. Jacobs had bought from Christian Brubaker land for $4000, to be paid on the 1st of April 1819, and that he had actually paid him in advance $1000, on the 22d of March, by a check on the same bank, it was reason- able to suppose in the absence of proof to the contrary, that he drew the check of the 22d of March 1819, for $2500, for the balance of Brubaker's claim, or in order to be prepared to pay him the residue of the $4000 on the 1st of April following, according to their contract, and that, therefore, the money might have been drawn by himself for this purpose. Now to do away all idea of the kind, the plaintiffs offered to prove, that the balance of the purchase-money was not paid by Mr. Jacobs, but by Mr. William Coleman, after Mr. Jacobs's death, and that although Mr. Brubaker had called at the office of Mr. Jacobs for it, on the 1st of April, yet he did not then receive it, on account of Mr. Jacobs's sickness and consequent inability to transact business. Viewing the testi- mony in this light, 1 think it was correctly admitted. The sixth error has, I think, been abandoned. If not, as it is a mere repetition of all the previous alleged errors, on which the court had passed their opinion, and brings up no new matter, it need not again be considered. I proceed then to the consideration of the seventh error. After the plaintiffs had rested their cause, the defendants, on their part, proved by Joseph Ogilby, that on the 29th March 1819, a check, (the one in question), drawn by Samuel Jacobs, dated the 22d of Dec. 1829.] OF PENNSYLVANIA. 183 IBank of Pennsylvania v. Jacobs.] March 1819, payable to himself or bearer, for $2500, was presented by a boy, arid paid by Mr. Ogilby to him at the bank ; and that on the 5th of June following, William Coletnan brought Mr. Jacobs's bank book to the bank, and had the balariee due to him struek, or settled by Mr. Ogilby, who returned Mr. Colemari the checks set down in it ; that on the second of July next after, Mr. Coleman brought the bank book and checks to the bank, and told Mr. Ogilby some of Mr. Jacobs's heirs doubted the check of $2500, arid thought it not genuine, that he thereupon examined it carefully, thought it was Mr. Jacobs's handwriting, and still thought so ; that Mr. Cole- rnan, was of the same opinion, and said the heirs wished to bring suit against the bank, to recover the money, but that he would not do it, unless they could produce some proof to him ; that Mr. Cole- man took the book and checks and went away, that on the same, 2d of July, the balance to the credit of Samuel Jacobs was $2587.69, that on that day they settled the book, and transferred the balance to the account of William arid James Coleman, as executors of Samuel Jacobs, deceased. The defendants also gave in evidence the correspondence between Thomas Elder, on behalf of the heirs, and the officers of the bank, commencing on the 20th of February and ending on the 25th of July 1821 ; and then offered, after the evidence already stated, the inventory exhibited on the 22d of May 1819, by William and James Coleman, executors of Samuel Jacobs, deceased, to the register of the county of Lebanon, arid also the administration account of the same executors, exhibited the 1st of December 1820, and finally passed and confirmed on the 3d of January 1821, and in connection with them a receipt and acquitance from Jacob M. Ilaldeman and Richard T. Jacobs, admin- istrators de boms non, then appointed, bearing date the 3d of Janu- ary 1821, the said receipt and acquittance having been given by the said administrators de bouts non, to the aforesaid executors, as appeared by the same papers ; to all which the plaintiffs' counsel objected, and were sustained in their objection by the court, who overruled the said testimony thus offered. The defendants in error contend, that these papers, being wholly irrelevant to the matter in issue, and only calculated to embarrass the cause, the court wero right in rejecting them. In this I agree with them, for neither to the court below, nor to this court has any the least relevancy been shown. It cannot be pretended, that any of the papers show on their face, that the $2500, were included, or mentioned in them, nor can anything, relative to the bank, or this money be shown from the most minute examination of them. The plaintiffs in error admit themselves, that the $2500 were not included in the inven- tory, administration account or receipt, as their whole defence was rested on the ground that William Coleman, the executor, did not receive the $2500 from the bank, but allowed that sum to the bank on the settlement of the bank book on the 5th of June 1819. 184 SUPREME COURT [Lancaster [Bank of Pennsylvania v. Jacobs.] Again, the third and fifth points put to the court by the plaintiffs in error aver distinctly, that the $2500 were not received by William Coletnan, and the fifth point says, that the money *' was voluntarily settled for and paid by the executors of Samuel Jacobs, deceased, to the present defendants." How, then, on the defendant's own grounds, could the $2500 have been included in the inventory, administration account, or receipt? The receipt is merely a receipt for so much as was in the executors hands. If it be said, that these papers were evidence to show that the executors had settled an account of some kind, my answer is, that this was shown fully, and admitted by the plaintiffs below, by the letters of administration de bonis non, given in evi- dence by them. The recitals in those letters of administration must be taken to be true, and show that the executors had settled an account, that this account had been approved by the proper court, and that they had been duly dismissed. And this appears fully from the fourth point put by the defendants below to the court. Indeed the answer of the court to the defendants' fourth point is a complete answer to the seventh bill of exceptions, about the rejection of these papers. The court in their answer say, " That the recitals in the letters of administration de bonis non, given in evidence by the plaintiffs, must be taken to be true. They show that before the granting of them, the executors had settled their account, as stated in this point. The presumption of law is, that the account so settled by the executors contained a full and perfect account of all the assets of the deceased, which had come to their hands at the time they were discharged from their trust, and that it was duly settled and approved by the proper authority. Whether the settling of the administration account by the execu- tors, as stated in this point, was an administration of the part of the assets of the deceased now in question in this suit, depends on the fact whether the $2500 mentioned in the check in question had previously to that time come to the hands of the executors. If they had received the money in question from the bank, the plain- tiffs could not recover in this suit, whether they charged themselves with it if their administration account or not. If they charged themselves with it in their administration account settled by them, they have administered on it, and the plaintiffs cannot recover, whether they have received it of the bank or not. If they neither received it from the bank, nor charged themselves with it in their account, then the settling of an account, as mentioned in this point, would not be an administration on this part of the assets of the deceased, and the plaintiffs are not, on that account, prevented from recovering." The acknowledged ground of defence, both in the court below and in this court, shows that these papers could not Dec. 1829.J OF PENNSYLVANIA. 185 [Bank of Pennsylvania v. Jacobs.] have been in any way material or relevant, and therefore there was no error in rejecting them. A word as to the eighth bill of exceptions will suffice. The defendant had proved by Mr. Ogilby that the check of 32oOO had been paid by him to a boy or young lad ; the plaintiffs offered (and as I understand it, in order to show that Mr. Ogilby was or might be mistaken in his recollections as to this) to prove that Christian Brubaker gave his check for $1000, dated (though erroneously) the 21st of March, instead of the 22d of March 1811J, to his son Benjamin Brubaker, who came to Lancaster to draw the money sometime in the latter end of March or beginning of April 1819, and when lie came to Lancaster he thought there might be some difficulty in getting the money at bank, and therefore went to Ober & Kline's store, and requested Mr. Kline to send a boy (then about twelve or fourteen years of age), to the bank for the money, who returned in a few minutes with the $1000, the amount of the check. As the evidence was intended to show a mistake in the recollection of Mr. Ogilby, or to correct the mistake, if any, it was properly offered, nor was there any error in receiv- ing it for that purpose. Having thus disposed of all the errors assigned respecting the admission and rejection of evidence, I will proceed to consider the errors assigned in the answers of the court to the points proposed by the counsel for the defendants. These were nine in number, and the court were requested to reduce their answers to writing and file them of record. This the court did, and, in my opinion, answered fully and very satisfactorily each and every point. The first, second and third points all relate to one subject, to wit, on whom the settlement of the estate of persons (lying testate or intes- tate devolves, and also whether an administrator . on the per- sonal property of Daniel Howry and Benjamin LJ. Eshelman as partners in trade. John Stauffer, Christian Breckbill and Jacob Eshelman had seve- rally obtained judgments against B. B. Eshelman, on each of which judgments an execution was issued against him and levied on the llth day of August 1825, on Benjamin B. Eshelman 'a share of the Dec. 1829.] OF PENNSYLVANIA. 199 [Doner v. Stauffer.] personal property of Benjamin B. Eshelman and Daniel Howry, as partners in trade. By virtue of these and other executions, the personal property of the firm was sold for the sum of 5070. .'39, which, after payment of the costs, left a balance of 4779. This balance was paid into court for distribution. On a rule obtained by the counsel of Stauffer, Breckbill and Esh- elnian, to show cause why the one-half of the proceeds of the sale of the firm property should not be applied to the satisfaction of their executions against B. B. Eshelman, the court decided that the execution-creditors of Benjamin B. Eshelman had a legal right to his share of, and interest in the partnership effects of the firm of Howry & Eshelman, as it stood on the llth August 1825, when the executions were levied ; and directed this issue, to try what that share or interest was. The plaintiffs claimed a moiety or half part of the 4779 as their share. The plaintiffs having closed their evidence, the defendants, in support of the issue taken in the cause, offered to prove that the firm of Howry & Eshelman was entirely insolvent on the llth Au- gust 1825 ; that the debts and claims against the said firm existing on the said llth August 1825, which were then unpaid, greatly exceeded the whole property of the said firm ; that Benjamin B. Eshelman, on the said day, had no interest whatever in the said firm, and that Daniel Howry, the other partner, is greatly interested in the application of the funds of the said firm to the payment of the debts of the said firm, as he is answerable, individually and as a partner, for the whole of the said debts. Which offer being objected to, the court overruled the same, and delivered the follow- ing opinion, to wit: "I am satisfied that the authorities cited settle the law as it applies to the cases decided, that is to say, to cases where there are separate executions against one partner levied on the partnership effects. But this is a case where the whole partner- ship effects are swept away by separate executions against each partner, where the creditors at large have no lien. I must say that the principal object in directing this issue was, as it was a case of great importance, to give an opportunity of completely con- sidering and reviewing the law on the subject. But 1 am very clear that Benjamin B. Eshelman's interest, or want of interest, cannot be shown by evidence of debts due from the firm, and that the testimony offered relative to the insolvency of the firm, and the interest of Daniel Howry in the application of the funds of the firm to the payment of its debts, cannot be admitted." To this opinion, overruling the evidence offered, the defendants excepted. Although the issue joined was between the separate execution- creditors of the respective partners, the counsel for the defence appeared for the joint-creditors of the firm, to controvert the right 200 SUPREME COURT [Lancaster [Doner r. Stauffer.] of the separate creditors of Eshelman, to be paid out of the fund in court, before the joint-creditors were satisfied ; and they alleged that after the executions of the separate creditors were levied, Howry & Eshelman had made an assignment to trustees, for the benefit of the creditors of the firm. The only question now raised in this court, upon the charge of the court below, and the bill of exception, was, whether the separate execution-creditors of Eshelman had a right to be paid out of the proceeds of the sales of the goods of the firm, before the joint- creditors were satisfied out of that fund. Norris, for the joint-creditors, denied that the separate execution- creditors had a right to the fund in court for appropriation. The separate creditor cannot withdraw the funds of the partnership from the payment of the partnership debts to pay his debt. Accounts must be settled between the partners and the world, and one between the partners themselves, before such creditor can have the fruit of his execution ; he comes in only for the surplus after paying the partnership debts. Partners have a lien on the partnership effects, creditors have not. No spark of interest can be drawn from the firm by one partner until the partnership is settled. The partnership fund is pledged for the payment of the partnership debts. The only inte- rest which each partner has, is what remains after the debts are paid ; it is the dry mass of property, after the payment of the part- nership debts. This, then, being the interest vested in Eshelman, the plaintiffs below, the separate execution-creditors, could take no greater inte- rest, and therefore the joint-creditors must be first paid : West v. Skip, 1 Ves. 2-44, 293. The vendee is a tenant in common with the surviving partner: Fox v. Hanburg, Cowper445; Pearce v. Jackson, 4 Mass. 242; Taylor v. Fields, 4 Ves. Jr. 390. He also referred to, In the Mat- ter of Smith, 10 Johns. R. 102, and the note to that case, where the cases on the subject of the proceeding under an execution in favor of a separate creditor, levied on partnership effects, arc col- lected : Nichol et al. v. Munfort, 4 Johns. Ch. 522, f>2o. Edy v. Davidson, Douglass OoO, decides that the sheriff should pay a part of the money levied on the execution of the separate creditor, out of the partnership effects, to the assignee, representing the partner- ship creditors, equal to the amount of the interest of the partnership in those effects. This case is precisely in point : Gow on Part. 49, 317. The right is a lien in favor of partners : Watson on Part. 103 ; Bank of North America v. McCall, 3 Uinn. 338. An action may be brought by a surviving and solvent partner, to recover money obtained by a separate creditor, out of partner- ship effects: Bank of North America v. McCall, 4 Binn. 371; Dec. 1829.] OF PENNSYLVANIA. 201 [Doner v. Stauffer.] Knox v. Summers, 4 Yeatcs 477. The general doctrine is recog- nised in this case, and here money was made on a separate execution against one partner, and brought into court, and claimed by the assignees of the partners, on a subsequent execution, and the court decreed the money to the assignee. He referred also to McCarty v. Emlen, 2 Yeates 190. Chancery will not stay the execution of the separate creditor, until the partnership debts are taken and liquidated : Moody v . Payne, 2 Johns. Ch. 548 ; Kuhn v. Nixon, 15 S. & R. 118, 125; Caldwell v. Stileman, 1 Kawle 212, 1C. The fund, is by law, appropriated to joint-creditors, and the separate creditors must show that they are satisfied, before such separate creditors can come at it. This preference of the joint-creditors, as to the partnership effects, is the well-settled law of Pennsylvania. The lien of the partner, upon these effects, which gives this preference, arises from the contract of partnership. They are mutually bound, on that contract, for the joint-debts of the firm, and if the separate creditor of one partner, could sweep the partnership fund away, great injus- tice would result to the other partner. His Iiabi4ity to the joint- creditors would remain, while the joint-property, in which he had an equal interest, would be taken to satisfy the debt of his partner, in which he had no interest, and for which he was in no way liable. All this is prevented by the principle of natural justice, which gives the lien to the partner, and secures the effects to the joint- creditors. This docs not depend on the bankrupt law, nor is it derived from the system which in England has been adopted under it. That law is silent as to any preference. It arises from natural equity, growing out of the contract of partnership, and is said to exist at common law. The sale in our case was in invito, against the consent of the owner of the goods. It is a transfer by operation of law. The sheriff must, under the separate execution, seize the partnership effects, for the partners are seized per mi ct per tout, and the interest of each cannot be separated : Watson 98, 1'2. The courts of law in Pennsylvania, as we have here no courts of equity, are bound to enforce the equity arising in the relation of partnership between the partners : Bell v. Newman, 5 S. & R. 78. Where the land of an intestate is sold bv execution, the money is to be distributed according to the order of payment of debts, in the case of personalty, and the court from which execution issued is bound to distribute it : Penn. Agric. & Mamifac. Bank r. Stam- baugh's Adm'rs, 13 S. & R. 299. In the case of Edy v. Davidson, the same equitable doctrine was applied to the distribution of money, levied out of partnership effects. The mode adopted to exercise the equitable jurisdiction, in this 202 SUPREME COURT [Lancaster [Doner v. Stauffer. case was a proper mode to effect the object. It is in effect between the partners, although nominally between the separate creditors of each partner. But it is a feigned issue, and no matter who are nominally on the record, the substance is to try the right between all parties. The mode of these feigned issues is not the subject of error. They are to inform the conscience of the court, and the substance only is regarded: Neffv. Barr, 14 S. & R. 166. It is not necessary that there should have been an execution in favor of the joint-creditors. Their right does not depend on this, but on the lien in favor of the partners. The court declined hearing Parke and Montgomery, for the defendants in error. Hopkins, for the plaintiffs in error. The money came into the court by wrong ; the whole effects, not merely the right to the sur- plus after the payment of the partnership debts were sold; although the sheriff could of right sell but that surplus : Hankey v. Garrett, 1 Vesey 242 ; West v. Skip, Id. 456 ; Taylor v. Fields, 4 Vesey, Jr. 396. Enough must be left for partnership debts. When the sale took place the partnership was gone: Pierce v. Jackson, 6 Mass. 242; Cooper v. Chitty, 1 Burr. 20 ; Shaw v. Tunbridge, 2 W. Black. 1064. Here the entire fund was brought into court for distribution among all parties in interest. A motion to distribute a fund, in Pennsylvania, is in the nature of a bill in equity, and comes instead of the audita querela, which has fallen into disuse. It extends itself to embrace all questions involved, and all the parties in interest. The joint-creditors had a direct interest, represented by the assignees of an insolvent partnership. Their interest, and that of Daniel Howry, is identi- fied ; arid if these creditors so represented, do not recover this fund, their rights must be destroyed. The fact that the assign- ment was made subsequent to the execution, can have no effect. The assets of the partnership are in yremio leyis, until they can assert their rights. The issue directed ex vi termini, embraces the question as to the joint-creditors, as upon the settlement of the accounts of the firm only, can the share of Eshelman, in the partnership fund be ascertained. What is the mode of investigation where the funds of a partner- ship are in court for distribution ? In chancery, where a court of chancery exists, an injunction would issue to stay proceedings at law, and distribution would be made in that court so as to do equity. Lord Mansfield, however, Dec. 1829.] OF PENNSYLVANIA. 203 [Doncr r. Stuuffer.) thought that where the common-law court was in possession of the fund, a resort to a court of equity was unnecessary ; but that the common-law court should distribute it according to equity. Here our courts are armed with equitable as well as legal powers, and they have long ago broken legal trammels, and asserted principles necessary to do equity and justice. Eat boni judices ampliari juris- ditioncm : Edy v. Davidson, Douglass 650 ; Penn. Agric. & Manf. Bank v. Stambaugh's Adm'rs, 13 S. & R. 299. In this case the funds were brought into court upon execution, and the court, to do equity, investigated the rights of parties under the fourteenth sec- tion of our law relating to intestacy, and decreed in favor of a bond creditor, as to the fund so raised ; although the bond creditor was no party to the execution and had no judgment. Where there are complicated rights, the court will, on the appli- cation of the sheriff, suspend proceedings until those rights can be ascertained, in order that the sheriff may make a correct return : Shaw v. Tunbridge, '2 W. Black. 1UG4. He referred also to Knox v. Summers, 4 Yeates 447. Where the separate creditor had actually obtained the fund under a judgment, yet he was not protected by it from the other partner : Bank of N. A. v. McCall, 3 Binn. 371. Where the claim is either by assignment, or under execution, it is only to the surplus after the payment of partnership debts : Nicoll v. Mumfort, 4 Johns. Ch. 525. This case contemplates bringing the money made on execution into court, and overrules, in effect, the decision in 2 Johns. Ch. 548, as to an injunction to stay a separate creditor, in case of partnership effects. The case of Morcly v. Stromborn, 3 Bos. & Pull. 54, is at law. In equity it is different, and it is so said in this case ; and Lord Mansfield held, that the rule should be the same at law. The opinion of the court was delivered by GIBSON, C. J. It is settled by a train of decisions in the Ameri- can, as well as the British courts, that the joint effects belong to the firm, and not to the partners, each of whom is entitled only to a share of what may remain after payment of the partnership debts : and consequently, that no greater interest can be derived from a voluntary assignment of his share, or a sale of it on execution. That a contract which enables the parties to keep a class of their creditors at bay, and yet retain the indicia of ownership, should not have been deemed within the Statutes of Elizabeth, is attributable exclusively to the disposition universally manifested by courts of justice to encourage trade. But such as it is, has the contract of partnership been established : and the principle which enables the partners to pledge to each other, the joint effects as a fund for pay- ment of the joint debts, has introduced a preference in favor of the joint creditors, founded on no merits of their own, but on the equity 204 SUPREME COURT [Lancaster [Doner r. Stauffer.] which springs from the nature of the contract between the partners themselves. The author of the Commentaries on American Law, vol. 3, p. 38, attributes this preference to an inherent equity in the joint creditors themselves, arising from a supposed acquisition of the partnership effects from their means. The opinions of ChaYi- cellor Kent are so justly entitled to deference that no prudent judge will differ from him without hesitation ; yet I cannot but adhere to the opinion I expressed in Bell v. Newman, 5 S. & R. 92, that in cases of insolvency or bankruptcy, in which alone the question of priority can be material, the joint effects consist of the wreck of the capital originally embarked. Under a joint commission, by which the effects pass to the assignees, while the partners are per- sonally discharged, I admit, that the preference of the joint cred- itors has no oth-er foundation, if it has any at all, than this supposed inherent equity ; and the best elementary writer on the subject so disposes of the difficulty : Gow on Partnership 3412. But in the case of a separate commission, Lord Eldon expressly puts it on the particular equity of the partners themselves, Ex parte Ruffin, 6 Vesey 126, and in the case of an execution, Chief Baron McDon- ald does the same : Taylor v. Fields, 4 Vesey 396. To secure the firm from the extravagance of its members, by preventing the capi- tal from being withdrawn from the purposes of the partnership, the stock is pledged for the burden which, from the nature of the con- nection, is to be borne by all ; but in moulding the law of partner- ship to its present form, the credit gained by giving the joint cred- itors a preference, was, if an object at all, a very remote one. Ac- cordingly, with the single exception of a joint commission, we find that wherever the partners are not individually involved, the joint creditors have no preference whatever; as in the instance of a bona fide assignment of the effects, to one of the partners, after the part- nership has been dissolved. In consequence of the rule as I have stated it, a separate execu- tion-creditor sells, not the chattels of the partnership, but the inter- est of the partner, encumbered with -the joint debts; and the joint creditors therefore have no claim to the proceeds, To allow them the proceeds, and recourse to the property in the hands of the pur- chaser, would subject it to a double satisfaction. Neither can they take the proceeds or the property at their election. They can interfere at all, only on the ground of a preference which has regard only to the partnership effects, and these have not been sold, but only the subordinate interest of the partner, which was, strictly speaking, his separate estate. Their recourse, therefore, is necessarily to the property in the hands of the purchaser. Now, had the sheriff sold the interest of but one of the partners, the execution-creditor would have clearly been entitled to the proceeds. But although he sold the whole stock at one operation, on separate Dec. 1829.] OF PENNSYLVANIA. 205 [Duner v. Stauffer.J executions against both, there was, in contemplation of law, a separate sale of the interest of each. What then would have been the effect, had these sales been made consecutively ? The first, in the order of time, would have passed the interest of the partner, subject to the equity of his co-partner, and the execution-creditor would have been entitled to the price. But this equity, together with the remaining interest of the other partner, would have passed by the succeeding sale to the same purchaser; the execution cred- itor, in that instance, also taking the proceeds. Can it make a difference, then, that instead of being consecutive, these two sales were simultaneous? A curious question might arise, whether separate purchasers of the shares respectively, would stand in the relation of partners, so as to enable the joint-creditors to follow the goods. It seems to me they would not, because not personally in- volved in payment of the debts. Here, however, where the shares of the partners are united in the same purchaser, every semblance of partnership-equities is at an end. As regards the goods in the hands of the purchasers, this is conceded ; but the joint-creditors insist that the proceeds are to be substituted for the goods, and subjected to the same equities. That might be done if the proceeds belonged to the partners ; but it is not easy to imagine how they arc to be treated as the owners of money raised by a sale on executions against them. For what purpose should the ownership of it be vested in them, even for an instant? Not to give the joint-creditors a preference, for that would make the rights of the partners depend on the claims of the joint-creditors, who, on the contrary, can claim nothing but by virtue of the lien, where there is one, of the partners. To say that the partners have such a lien because the joint-cred- itors have an equity, and that the joint-creditors have an equity because the partners have a lien, would be to argue in a circle. Here the partners cannot be prejudiced in respect of their claims on each other, the advantage to be gained from an application of the joint effects to their separate debts, being mutual and equal. The consequences are precisely the same, as if the effects had been sold on execution against both. We are, therefore, of opinion that the joint-creditors can not interpose ; and consequently, that the rejection of the evidence, as well as the direction to the jury, was substantially right. I have considered the question on principles applicable to it. in analogy to well settled parts of the law of partnership, rather than on authority bearing directly on the point. Hut, since this opinion was drawn, my brother HrsToX has directed my attention to the case of Brinkerhoff v. Marvin, f> Johns. Oh. 300, which is direct to the point ; so that independent of analogies, we have an authority on which we might safely rule the cause. But both principle and 206 SUPREME COURT [Lancaster [Doner p. Stauffer.] authority are adverse to the preference claimed ; and the issue, therefore, was correctly found for the plaintiff. HUSTON, J., dissented. ROGERS, J., was sitting at Nisi Prius, and took no part in the judgment. Judgment affirmed. Referred to, 3 Wright 273, 287 ; 8 Id. 509 Commented on, 9 Barr 126. Distinguished, 2 C. 263 : 5 Id. 14. Approved, I II. 474, 475. Followed, 8 II. 234; 9 Id. 83 ; 8 C. 452; 3 Wright 401 ; 3 Gr. 215; 7 Smith 12 ; 17 Id. 334. Dec. 1829.1 OF PENNSYLVANIA. 207 Konigmacher against Kimmel. B. K., in 1815, was appointed guardian of J. ; shortly after, J. W., broth- er-in-law of J., and administrator of the estate of his father, nettled his admin- istration-account, by which a balance was found in his hands. In 1810, B. K. received part of that balance in cash, and for the residue coming to his ward, took J. W.'s bond without security. At that time, J. W. was in good circumstances; he kept a store, and up to the year 1820, continued to have a large amount of real and personal property in his possession ; then he sold a tract of land which he had bought at a very high price, at a loss of about SI 2,000, and shortly after made an assignment for the benefit of his credit- ors, by which it appeared that he was largely indebted. The assignees paid fifty-five percent of his debts. Up to the spring of 18'20, many of his neigh- bors, ami among them the mother and another brother-in-law of J., loaned him different sums of money. Ildil, that B. K., the guardian, was not chargeable with the loss upon the bond he had taken of J. W. More ought not to be expected from guardians than common prudential care; they should not be made liable, unless under unfavorable circum- stances, their acts expose them to the animadversion of the law, for supine negligence, showing carelessness of duty, and of the ward's interest ; or where the loss is occasioned by their own act in giving credit without taking security. If executor or administrator sells goods of testator or intestate, and do not take security for the price, he is generally charged with the amount. If the bail or security is a man generally reputed good for so much, it is suffi- cient, it is not necessary that he should be a freeholder. So if a guardian had in his hands money of his ward, and puts it out. he will generally be liable, unless he take surety in the note, Ac., not so if he take a mortgage on land, and an old title, unknown at the time, should sweep away the pro- perty mortgaged. But where the fund never actually came to the hands of the guardian, there is a difference ; he is not bound instantly to sue in all directions if. to all appearance, the money is safe. Common skill, common prudence, and common caution, are all that courts require from trustees. In case of appeal from a decree of the Circuit Court, a eertiorari is not necessary, nor can the prothonotary demand his fee before entering it. THIS was an appeal frcra the decree of the Circuit Court, con- firming the decree of the Orphans' Court of Lan<'. Earl of Ply- mouth, 3 Atkyns 480, a receiver appointed in chancery for the rents of a minor, received TOO/., at Worcester. There being some ex- pense and risk in remitting to London, in specie, he gave it to Wins- more, a trader in good credit, and took his bills on London. The bills were protested, and Winsmore became a bankrupt within a week ; it was proved, however, that at the time the bills were taken his credit was good as any man's in Worcester. The receiver was not charged with the money, although it was urged, that not being a trustee appointed by the party, but by the law, he must answer with the utmost strictness ; that he received compensation too for services, and therefore was held to greater strictness In 1 P. Wms. 141, where an executor, without being authorized by a decree, puts out money on real security, he is not liable though the money is lost, if given on security reputed good, and no fraud. Ex parte Belsliier, Ambler 218. The assignee of a bankrupt, who also receives a compensation, employed a broker to sell tobacco, who received the price, and about ten days after died insolvent. The commissioners of bankruptcy charged the assignee with the loss ; but on application to chancery, the chancellor said, if the assignee was charged in this case, no sane man would ever become an assignee. He entered at large into the law, referred to several cases, and came to the conclusion, that it is not necessary, in every case, to take security ; if the trustees act for the trust as prudent persons act for themselves, and in the usual way of business, they are not liable. In Jones v. Lewis, 2 Vernon 240, we find a still stronger case, and to the same effect after decree to account and to pay over, an administratrix instead of going to the plaintiff and paying, left the money with her solicitor, to pay when called for ; he was robbed, and she was excused. It is again put on the ground of her acting as prudent people act in their own cases ; to keep the trust fund as they keep their own. I could trace the same doctrine through every case from that time. In a neighboring state, a chancellor of great eminence for learning, industry and ability, has fully adopted the same doctrine; and it is settled in New York, that executors, administrators or guardians, are not liable beyond what they actually receive; unless in case of gross negligence. Where they act as others do with their own goods, with good faith, and not gross negligence, they Dec. 1829.] OF PENNSYLVANIA. 213 [Konigmacher v. Kimmel.] are not liable ; indeed the first case is stronger than that : See 2 Johns. Ch. 27, et seq. ; 4 Id. 619. This subject has been considered in this court ; I shall not review all the cases. In Pimm v. Downing and Stalker, 11 S. & R. (>7, we have a case much stronger than this. The money was not forced from the administrators (the mother and uncle of the ward), for three years, and was lost ; for this the guardian was not held liable : part was in the hands of the joint-guardian, and by Stalker given to his co-guardian, who was going into trade; for this he was held liable. The principle settled in that case, is, that for gross negligence, trustees are liable, and for their own acts in not care- fully securing money, which was in their hands, and put out by them ; but for not suing at once, a mother, who was an adminis- tratrix, and in good credit, or not suing her when they first heard of her insolvency, if no probability of recovering at that time, they were not answerable. In Johnson's Appeal, 12 S. & R. 317, the matter was again fully considered ; in that case the grounds for charging the guar- dian, were stronger than in this. In 1815, he settled with the executors, and for a balance to his ward of $1(572, he neither took, nor asked security, but interest was paid him. In 1819, the exe- cutor settled his account, and a balance of $9000 and upwards was in his hands; the guardian took no step to recover his ward's share for seven months. In 1820, he applied to the Orphans' Court, to have security or that the executor should be dismissed, and he was dismissed. It is true that the money was not payable to the ward until she was twenty-one, but the executor was not cited to give security, until he was totally insolvent ; yet there was no suit nor judgment against him, until after he was dismissed by the Orphans' Court, nor no evidence that he was of doubtful credit ; nor of any notice to guardian, except by deposition of the widow, who had trusted him, and who, herself had no security. It is there said to be the harshest demand that can be made in equity, to make a trustee answerable for what never was in his hands, or to make up a deficiency not owing to his wilful default. More ought not to be expected from guardians than common pru- dential care ; they should not be made liable, unless under unfavor- able circumstances, their acts expose them to the animadversion of the law for supine negligence, showing carelessness of duty and of the ward's interest, or when the loss is occasioned by their own act, in giving credit without taking security, when they sell goods or put out money in their own hands. "\\ here executors or administrators take possession of the goods of the deceased, and sell them (usually in this country at auction), it is usual to require from the purchaser, of such as are not sold on credit, surety in the note; if this is not taken, the executor is generally charged with the amount, for he had the goods in his own 214 SUPREME COURT [Konigmacher v. Kimmel.] possession ; but lie is not obliged to take a freeholder for bail. If the bail is a man generally reputed good for so much, it is sufficient. So if a guardian has on hand money of his ward, and puts it out, he will generally be liable, unless he take a surety in the note. I do not say he would in all cases, ex gratia, if he took a mortgage on land, and an old title, unknown at the time, should sweep away the property. In short, whenever the executor or guardian actually has the fund, and disposes of it to another, he must do it with pro- per and strict caution, as a prudent man would, and is seldom safe unless he does take security. But where the fund never actually comes into the hands of a guardian, all the cases make a difference; he is not bound instantly to sue in all directions ; the mother, brothers, or brothers-in-law of the ward, are not to be harassed to extremity, if to all appearance, and in the general opinion the money is safe in their hands. If adults of the family have funds in the same situation, or if other prudent men have, and consider all safe, the law does not require every possible precaution and exertion from a guardian. An unusual rise and depression of property occurred over most parts of this state from 1814 to 1820, many of those who were considered, and who were of eminent skill *in business, of great in- dustry, and as honest as any of their neighbors, were ruined. It was a time in which ruin overwhelmed many of all classes, and accident had no more to do in the eventual wealth or poverty of every man, than knowledge or exertion. The infatuation, as it is now called, pervaded all ranks. A few from extreme caution, a few from extreme indolence, and perhaps some few from a great superiority of mind, or experience, kept aloof. It is not right, however, to make them a standard, by which trustees are to be held liable or not ; pre-eminent knowledge or uncommon foresight, are not required. Ordinary men are to be compared with, and judged by the standard of ordinary men. Common skill, common prudence, and common caution, are all that courts have required or ought to require. There is no proof that Weidman was a general speculator ; he bought a place called the Dry Tavern ; no one has said he bought too high or lost by it. If he had become extravagant or intempe- rate, or lost his character for honesty, or if an opinion that he was failing had generally existed, the guardian ought to have sued or got security. The proof fairly viewed is, that until the sale of his Garber place, had shown a loss of above $12,000, he was considered safe ; arid even then the widow did not sue, nor ask security, nor did any but two out of about twenty creditors, all of whom, we must take to be careful, prudent men. Your money lenders are not dull sighted, nor negligent of their interest ; and no court, I think, has said that a guardian is liable unless he have more caution, more knowledge, or more foresight, than his neighbors. Dec. 1829.] OF PENNSYLVANIA. 215 [Konigrnacher v. Kimrael.] No two cases of this kind can be exactly alike in all their circum- stances, and therefore, courts can only give general rules. Whether a case comes within a general rule, is a matter about which judges have differed, and will differ. In this case, a majority of the court are of opinion that, as he never had possession of the money, and found it in hands which the family and neighbors thought safe, it was not gross or culpable negligence to leave it there. As to not getting the interest, it was probably, perhaps certainly, because the ward did not need it. The fact that Weidman was deeply indebted, though believed solvent, is answered by the case from Atkyns, in which he whose drafts the receiver took, was believed good, though he became bankrupt in a week. As to not suing after sale of the land, it is answered by Pirnm v. Downing, where the guardian was excused for not suing the ad- ministrators as soon as he heard they were indebted, because there was no evidence he would then have got anything. In this case, we see no evidence that a suit would have obtained any more than is now got. The decree of the Circuit Court is reversed as to all which re- spects the amount lost by the insolvency of Wiedman. The rest of the decree is affirmed. Decree reversed. TOD, J., dissented. Referred to, G W. 189 ; 5 W. & S. 256 ; 5 Barr 94 ; 4 II. 37G ; 7 Smith 96 ; 14 Id. 334. Followed, 5 Whart. 476. 216 SUPREME COURT Slaymaker ayainst Wilson. IN ERROR. A witness is incompetent to prove a signature, without proof of having seen the person write, or of other circumstances to show knowledge of the handwriting which he is called to prove. It is not enough, without such preliminary proof that the witness swears that the signature offered is the signature of the person whose it purports to be. The redemption of a pawn is not affected by the Statute of Limitations, which runs only from the conversion of the thing pawned. But a simple contract debt is not protected from the statute, because accompanied with a pledge as a collateral security. WRIT of error to the District Court for the city and county of Lancaster. In that court it was an action of debt brought on the 22d day of January 1821, by the defendant in error, who was plaintiff below, against the plaintiff in error, who was defendant below, upon the following paper : " Friend John Wilson, I was at your house this day to see if you could let me have one hundred and fifty-four dollars, I owe it to Thomas Coates, he will call to-morrow. I have left the deed, and if you pay him the money, get him to sign the receipt in the deed, this from yours, May 3d 1798. JOHN BOYD." The defendant pleaded nil debit, non assumpsit, payment with leave, &c., and the Statute of Limitations ; upon which the plain- tiff took issue. Upon the trial of the cause, the plaintiff gave in evidence the order of the 3d of May 17^8, on which he founded his suit, and offered a deed, dated the 29th day of April 1794, acknowledged on the 31st July 1797, from Thomas Coates to John Boyd, fora moiety of a tract of land in Leacock township, Lancaster county, together with the receipt for the purchase-money on the deed, with proof that the subscribing witness to the receipt, William Jones, was dead, and the deposition of his daughter, Elizabeth McGraw, in which she deposed, "that the signature of William Jones, signed as a witness, to the receipt for the money, on a deed from Thomas Coates to John Boyd, is the handwriting of William Jones, the father of this deponent." To this testimony so offered, the defendant objected, but the court overruled the objection, admitted the evidence, and sealed a bill of exception. By the evidence, it appeared that the parties lived no great dis- tance from each other, in the county of Lancaster ; that the plain- tiff brought three suits against the defendant's intestate, John Boyd, to August term 1810. Two on bonds, each for the pay- Dec. 1829.] OF PENNSYLVANIA. 217 [Slaymaker v. Wilson.] ment of $500 ; another on a single bill, for the payment of 100J. ; and another on a book account for money lent, amounting to $202, all dated after 1800. On the first two of these cases, no judgment was obtained, but the money had been paid, and on the 'last, judg- ment was had for $424.60, which had since been paid. The court below, in answer to points put, charged the jury that " the order in this case contains a request that Wilson, if he lent the money, should procure the signature of Coates, to the receipt on the deed. It appears by the paper, that the deed was left for that purpose. If there was no fact in the case on this subject, out of this paper, it would be the duty of the court to give it in charge to you, what the legal construction of the paper is. But this deed, from Coates to Boyd, is produced on the trial of the cause by the plaintiff. If the jury should be of opinion, that the deed is the one spoken of in the order, and that from the terms of the order and the fact, if they believe it to be so, that the deed has ever since been in the possession of the plaintiff, and the deed was left as a pledge to secure the payment of the money, the Act of Limitations does not apply to this case; but if the jury should be of opinion that the deed in evidence is not the deed from Coates, mentioned in the order, or that it was not pledged as a security for the pay- ment of the money, the Act of Limitations will bar the plaintiff, and he cannot recover." The court also charged the jury that if the delay of the plaintiff, in bringing suit, had not been satisfactorily accounted for, it was the duty of the jury to infer from that, and other circumstances in the case, the payment of the money claimed. Error was here assigned in admitting the deposition of Elizabeth McGraw, and the charge of the court. Evans, for the plaintiff in error, argued, that the deposition was improperly received. That no person is a competent witness to prove a signature, or handwriting, but one who has seen the person write, whose hand he is called on to prove, and before such witness is permitted to give evidence, he must disclose, as a preliminary, his means of knowing the handwriting. Here the witness was received to testify, that the signature was her father's without any evidence that she had any knowledge of his handwriting. 2. The Statute of Limitations is a bar. The attempt is to avoid the statute by the allegation that the money was loaned on a j*x\vn or pledge. The order contains no evidence that the deed was pawned, it is a simple request to loan money ; and the possession of the deed does not of itself prove a pawn. But if the plaintiff allege a pawn, he could not recover, for he must return, or offer to return a pawn, before he can bring suit to recover money, for which it is pledged: 1 Bacon Ab. 370; Garlick v. James, 1'2 Johns. R. 140. 218 SUPREME COURT [Lancaster V [Slaymaker v, Wilson.] But the issue was joined, as to the Statute of Limitations, on the replication that the defendant did assume within six years. There was no proof of such assumption, and it is not competent, under this issue, to rely on the alleged pawn to avoid the statute. To give that effect, if entitled to any, it should have been specially pleaded: Witherup v. Hill, 9 S. & R. 11 ; Wister v. Gray, 5 Binn. 573 ; Eckert v. Wilson, 12 S. & R. 393 ; Bailey v. Bailey, 14 Id. 195. Hopkins, for defendant in error, as to the bill of exception, argued, that where a witness called to prove handwriting swears to belief, he must state his grounds of belief, and knowledge ; but where the witness, as here, swears to the actual fact, that the handwriting is the writing of an individual, it is better evidence, than evidence of belief, founded on antecedent means of knowledge of handwriting. 2. The question pawn, being one of fact, was properly left to the jury. The Statute of Limitations is inapplicable to the case of a pawn. The deed could not have been recovered without payment of the money for which it was pledged. And as the deed could not be recovered without payment of the money, so as long as the deed is retained, the money can be recovered ; and no period will destroy this mutual obligation in the case of a pawn. The pawnor has his lifetime to redeem, and if not hastened by a request, his executor or administrator may redeem : Cortelyou v. Antill, 2 Caines C., in error 199. In reason, the rule should be reciprocal, the pawnor having his lifetime to redeem, the pawnee should not be barred by the statute for the money advanced on the pawn. No power short of redemption, or a tender, can bring time to operate: Kemp v. Westbrook, 1 Vesey 278; 1 Bacon Ab. 372 a. Trover for the pawn will not lie without payment, or tender. No precise words are necessary to create a pawn : 1 Bacon Ab. 370. The replication to the plea of the statute is not before the court. The court below did not refer to the pleadings. But on this repli- cation it is full evidence to prove, that the defendant assented to the continuance of the pawn in the possession of the pawnee. Besides, the plea of the statute was a nugatory plea. The plaintiff must show a right to recover, independent of the statute, and the issue upon it cannot divert the investigation from the merits. The objection now urged, is to the pleadings, and should have been made on the trial: Thompson v. Cross, Iti S. & R. 350. Norris, for the plaintiff in error, in reply. This suit is for money loaned ; simply that is the cause of action to which the plaintiff is Dec. 1829.] OF PENNSYLVANIA. 219 [Slaymaker v. Wilson.] confined. Yet notwithstanding he seeks to recover a debt upon a pawn. He must be confined to the issue on the Statute of Limit- ations, and cannot travel out of it. If he relied on special matter in avoidance of the statute, he must set it out in his replication : Witherup v. Hill, 9 S. & R. 11. There is no evidence of a pawn, nor is it like an indefinite deposite. The order itself shows it was left to get the signature of Mr. Coates to the receipt. Independent of the statute, the lapse of more than twenty years created an insu- perable presumption of payment. The opinion of the court was delivered by GIBSON, G. J. Without proof of having seen her father write, or other circumstances to show her knowledge, Mrs. McGraw was incompetent to prove his signature, and her deposition ought to have been rejected. The redemption of a pawn is not affected by the Statute of Limit- ations, which runs only from the conversion of the thing pawned ; and trover may, consequently, be brought within six years from that time. The present, however, is not an action by the owner in affirmance of the contract of bailment, but by the pawnee to recover a simple contract debt, which is certainly not the more protected by the statute because accompanied with a pledge, as a collateral security ; nor is it, on that account, the less subject to the mischief against which the statute was intended to guard. Had the matter been stirred before those who knew the circumstances had passed away, it is highly probable that the transaction would have been explained so as to show that nothing is due. Certainly the delay of twenty-three years, unaccounted for, raises an omnipotent pre- sumption. But was the deed deposited, in fact, as a security ? Nothing in the order on which the money was paid indicates such a conclusion ; and it seems to me the court ought so to have instructed the jury. But it is said that the construction being affected by a circumstance dcliors the order, the production of the deed was for the jury. I am at a loss to see what operation that could have. The deed was in the plaintiff's possession for some purpose, but whether as a pledge, or for the purpose indicated in the order, could not appear by the naked production of it. I pre- sume the argument is, that the owner would have demanded it in a convenient time, had he not been conscious that it was held as a security. This is the first instance in which delay has been set up to strengthen a plaintiff's case. On the other hand, there is an infinitely stronger presumption that the plaintiff would have ex- acted the interest, if not the principal, if anything were due. But in any event, the Statute of Limitations furnishes a bar to the action. Judgment reversed. Referred to, 1 11. 6^7. 220 SUPREME COURT [Lancaster Keller against Leib. Trustee for the payment of debts, paid a judgment against the debtor, and took an assignment in writing on the back of the bond on which it was entered, expressed to be for value received: Held, that it was competent to prove by parol that the assignment had been made to enable the trustee to enter satisfaction on it, and not to preserve it is a subsisting debt. If evidence must be immaterial when given, the court ought to reject it. If a trustee pay a judgment against the debtor out of the trust fund, it is as much satisfied as if the debtor had paid it, and there is no legal or equitable reason for keeping it in force. The trustee cannot, by taking an assignment of it, when it is paid make it available against the lands of the debtor, conveyed after it was entered, either for a good or valuable consideration, nor can it be mad to cover any other debt or demand. Queer*. Whether such trustee can proceed on a judgment against the debtor (purchsed with his own funds) by execution. IN error to the District Court for the city and county of Lan- caster. This was a scire facias post annum et diem, brought by the plaintiff in error, who was also plaintiff below, to revive a judgment, which had been entered in the Common Pleas, at the suit of Jfthn Gest, &c., against Jacob Leib. The original judgment was entered on the 10th April 1815, and the judgment which was soughf to be revived by this scirc facias, was entered to revive that judgment on the 22il November 1819. Jacob Leib, on the 2d May 1818, conveyed by deed to Christian Stehman, the terre-tenant, and his son-in-law, one hundred and twenty-six acres of land, in consideration of $12,014, and natural love and affection ; and on the 27th October 1819 executed to John Keller, John Leib and John Shober a deed of trust, for the use of his creditors, he being at that time largely indebted ; but at the time of the deed to Stehman, the judgment in favor of (Jest and one other only existed against him. On the '2d of May 18:21, John Keller, one of the trustees, paid to Gest the amount of this judg- ment out of the trust fund, and took an assignment of the bond, on which the original judgment was entered to himself, and it was expressed in the assignment to be for value received. On the 2<>th September 1823, the trustees settled an account, in which they took credit for the amount of the debt, interest and costs, exceed- ing 3^000, paid to Gest on this judgment ; stating, however, on the face of the account that the judgment was outstanding. The terre-tenant, who took defence, offered to prove by the de- position of Gest that when the judgment was paid to him, Keller requested him to assign it to him, that he told Keller he had no ob- jections, that he could enter satisfaction at Lancaster, as he was Dec. 1820.] OF PENNSYLVANIA. 221 [Keller v. Leib.] frequently there, and it was too far for the deponent to go for that purpose ; that this would clear the estate, and the bond would be a voucher in his hands against the estate. That he made the as- signment to Keller solely for the purpose and the reasons stated. This evidence was objected to by the plaintiff', but received by the court, and constituted one of the bills of exception assigned for error here. After this evidence and proof of the payment of the judgment to Gest, the assignment to Keller, and the account of the trustees had been given, the plaintiff' offered to prove that at the time of the deed to Stehrnan, Leib was largely indebted ; that fifty acres, part of the land conveyed, was conveyed in consideration of natural love and affection. This evidence was objected to by the defendant, and overruled by the court, and formed another bill of exception, as- signed for error in this court. The court charged the jury that if they believed that the judg- ment was paid to Gest, out of the trust fund, in satisfaction of it, and that Keller took an assignment of it merely to enter satisfaction, the defendant was entitled to their verdict. This and the answers of the court to the points put, which it is not necessary to state specifically, was also assigned for error. Jenkins and Hopkins, for the plaintiff in error, argued that the testimony of Gest went to contradict and destroy the assignment on the bond, which was positive in its terms, and contained a stipula- tion, that the assignor should not be liable, and that no case had gone the length of admitting such evidence. That the evidence as to the consideration of the land conveyed, connected with the indebtedness of the grantor, should have been received. It would have gone to avoid the deed set up by the terre-tenant as a defence: Ilayden v. Mcntzer, 10 S. & II. 329. If the trustee paid the money and took the assignment for a pur- pose beneficial to the trust, he had a right to do so. Here Gest had two funds, and the other creditors but one, and in equity he would be constrained to seek satisfaction from that fund to which they could not resort. The assignment taken and this scire facias would, if the plaintiff prevailed, accomplish this equitable applica- tion of the funds : Dorr v. Shaw, 4 Johns. Ch. 17. The court declined hearing Rogers, Norris and Frazicr, who were counsel for the defendant in error. The opinion of the court was delivered by HUSTON, J. (who recapitulated the facts of the case). As to the first bill we see no difficulty. In New York, where the courts of law arc strict in rejecting parol evidence where there is written ; yet there evidence is constantly admitted to explain a receipt for 222 SUPREME COURT [Lancaster [Keller c. Leib.J money, and they have permitted a party to show that although a receipt was given in full for goods sold, yet in fact there was no money paid, but a note of a third person given, which was to be in full if paid. Our courts have done the same thing : Leas v. James, 10 S. & R. 314 In cases of trust the courts will always permit the conduct of the trustee to be examined, and the real facts to be proved. The setrt'^ment by the three trustees, of whom Keller was one, showed a payment of this judgment by them all ; the assign- ment appeared as i f it had been by one. There are few cases in which the real state $ the case cannot, by pleas or by proof, be brought before a court of law or equity ; our courts exercise the powers of both. As to the other exceptions if evidence must be immaterial when given, the court ought to reject it. Now, if this judgment was sat- isfied, in fact and in law, the plaintiff, J. Keller, cannot recover any thing on it ; if it is not satisfied, the lands of Stehman are bound by it, whether the conveyance to him by Jacob Leib, was fair or fraudulent ; for a good and valuable consideration, or for no consideration. The counsel, aware of this, have discussed the mat- ter on that point ; and contended it, as if the assignment had been made to the three trustees, and the suit was for the use of creditors, and not of Keller alone. It is apparent, however, if this judgment is revived, so as to bind the land conveyed to Stehman, that they can and will sell not only the fifty acres said to be a gift, but the whole, for which he paid $12.000 cash ; and the judgment would be conclusive against Stehman, as much for the one as for the other. There are creditors unpaid, and if there were any thing unfair as to them, in the conveyance by Leib to Stehman ; if the fifty acres were a gift by a man deeply indebted, nay totally insolvent, it can be reached in another way. But it is said, that where one creditor has two funds from which he can levy his debt, and another but one, chancery will compel the first to levy so as to leave property for the other. This is true sometimes ; where the creditors arid the debtor alone are interest- ed, it is generally the case ; but where another person is interested and may be affected, it is not always true, and if that other person be an innocent purchaser for a valuable consideration, it will not be easy to find a case in which chancery has interfered to affect him. (See 1 Johns. Ch. 226, and, I believe, every other book and case on the subject.) I have said if the conveyance complain- ed of be fraudulent, it can be reached dirccfly by those interested ; and we are of opinion that the attempt, in the present case, is not likely to eventuate in doing justice. If the judgment of Gest was paid off by the trustees, out of the trust fund, it is as much satisfied as if it had been paid off by J. Leib. They represent him, and can no more pay a judgment, and yet keep it in force than he could. If he had paid this judgment as surety, or if they had paid it for him. DM. 1829.] OF PENNSYLVANIA. 223 [ Keller . Leib.] as surety or endorser, it might be used to reach the principal debtor; but when the real debtor pays a judgment against himself, or his trustees pay it with the trust fund, I can see no legal reason for keeping it in force, nor any equitable one. It is, says Chancellor Kent, in 4 Johns. Ch. 247, a sound and settled rule, that the penalty of a bond cannot be made to cover any other debt or demand than that mentioned in the condition (arid he cites 2 Caines 286), and proceeds, there could riot be a more dangerous, and there certainly is not a more inadmissible pre- tension, than that the parties to a judgment may keep it on foot, after the original debt has been paid, to meet and cover new and distinct engagements between them. And he adds, that although in that case, the judgment had been revived, under the pretence that it was unsatisfied, at least, in part, and executions had issued on it, by the assignee, to recover the alleged balance, yet the as- signee, if he took it, took it at his peril. And that whatever might be the case as to strangers who purchased property under it, yet the assignee of it purchases it at his peril, and he was decreed to be a trustee, and compelled to release. Another part of this case settles the question as to the admissibility of the evidence in the first bill. A question almost the same as that before us, was decided by the Supreme Court of this state, and is reported in Kuhn v. North, 10 S. & R. 399, in it, also, the question in the first bill seems to be settled. There, one of the assignees of an insolvent paid oft'a judg- ment, and charged the estate of the insolvent with the payment, and the sheriff's officer endorsed satisfaction on the writ. On the next day, the assignee procured the judgment to be assigned to him ; prevailed on the officer to erase the satisfaction endorsed on the writ, and gave it to another deputy of the sheriff to execute. The court decided, that an assignee who pays off a debt against the insolvent with his own money, may take an assignment of the judg- ment and proceed by execution ; but if he pays off the debt with the trust funds, the judgment is satisfied, and the officer who ex- ecutes process is a trespasser. The point was not made, and therefore I do not consider this as a deliberate opinion, whether such assignee can proceed on a judgment purchased with his own funds, by execution. I agree he may retain for his judgment in proportion with others, but 1 doubt whether he can proceed by execution, and sue and buy in, the trust property for himself if so, a trustee by purchasing a judgment, may make- strange work of it. The District Court then, were right in all the points, and the judgment is affirmed. Judgment affirmed. Referred to. 10 II. 324. 224 SUPREME COURT [Lancaster Demi against Bossier. IN ERROR. Where a lease is made for the term of a year, and the tenant sows the land with spring grain before his term expires, he has no right to the crop of spring grain cut after the term is out ; and this whether the lease be for money, rent, or on the shares. The custom in Pennsylvania, as to the way-going crop, is confined to fall grain, sowed in the autumn, before the expiration of the lease, and cut in the summer after it determines. IN error to the District Court for the city and county of Lan- caster. This was an action of trover and conversion, by which the plain- tiff sought to obtain the value of oats, in the straw, which grew on twenty-four acres of land, alleged to be one thousand six hundred dozen of sheaves, of the value of $300, and which came into the defendant's possession on the 12th ot July 1825, On the 1st December 1823, Christian Bossier, leased the land on which these oats grew to Frederick Demi, the plaintiff, for the term of one year, from the 1st day of April 1824, to the 1st day of April 1825. The lease contained a covenant that "Demi," should "cul- tivate the said plantation by the shares ;" that each of the said par- ties "should have the one equal half part of all the wheat, rye, oats, Indian corn, hay and pasture;" the wheat, rye and oats, to be delivered in the bushel. The landlord, on the 28th December 1824, served Demi with notice to leave the premises, and by a proceed- ing under the Landlord and Tenant Act, commencing on the 4th of April 1825, compelled him to quit. The oats in question were sown in the month of March before the expiration of the lease.' The charge of the court, being with the defendant, a verdict was found for him ; and the plaintiff brought this writ of error, and assigned for error this opinion of the court. Porter, for the plaintiff in error. The question is, whether a tenant who has put out a spring crop, in proper season, before the expiration of his lease, has a right to enter, after his term is ended, and cut that crop. By the terms of the lease, the tenant was to cultivate the land "by the shares," and divide the "oats," as well as other grain, in the bushel. The lease too, is without any restric- tion as to the mode of cultivation, and contains no covenant, that he should quit at the end of the term. The right claimed, is then consistent with the covenants in the lease, giving to the tenant a compensation for his labor, and the landlord the benefit of the covenant, to deliver the one-half of the grain cut. The case of Stultz v. Dickey, 5 Binn. 285, establishing the right of the tenant to the way-going crop, was a case in which fall grain was claimed ; Dec. 1829.] OF PENNSYLVANIA. 225 [Demi v. Bossier.] but the reasoning in that case is applicable to the present ; that too, was a case of a money rent, this is a rent by the shares. He referred also to Carson v. Blazer, 2 Binn. 476, 487 ; Briggs v. Brown, 2 S. & R. 14. Henry, contra. The tenant knew that his term was to expire on the 1st day of April 1825, and had full notice to quit, before he sowed the grain in question, and he sowed it a few days before the end of his term. This takes from his case all equity. The way-going crop, the right to which exists in Pennsylvania, means the fall crop. This right has its foundation in particular custom, and does not exist at common law : Gordon v. Little, 8 IS. & R. 533, 559. The parti- cular custom is supposed to enter into the contract between the parties, and if the plaintiff' wished to extend it to the spring crop, it was incumbent on him to prove a custom, to sustain him. A custom in derogation of the common law, must be construed strictly, and will not be extended without evidence : 1 Black. Com. 78. Nurris, on the same side. Before the case of Stultz v. Dickey, 5 Binn. 285, decided at Lancaster, the custom, as to the way- going crop, was not established in Pennsylvania, and is inconsis- tent with the language of the lease ; which by its terms is to expire at the end of the year. But this custom does not extend to give the tenant two spring crops, and one fall crop. The plaintiff' was permitted to give evidence to establish such a custom, but in this he failed. Here the lease, by its terms, ends with the year, and cannot be carried beyond it, but by usage, and this is a matter in pals, and lies in proof. But the right contended for, is in the highest degree unreasonable ; it would permit the tenant by sowing a spring crop, under a lease for one year, to occupy the premises rented for two years ; and would be against the course of good husbandry, as it is in violation of the contract of the parties. Hopkins, in reply. We do not rely on usage, we stand on our contract, and the law of the land. By the terms of the lease, the tenant had the exclusive right to the land for one year, with no other restriction, but that he should not under-let ; he was to have the half of what was sown during the term, and the landlord the other half. There is no restriction in the lease as to the time he should sow. If to sow grain in the spring, as was done in this case, be contrary to good husbandry, the landlord should have guarded against it by an appropriate covenant. As there is no such restric- tion, it is the defendant who must resort to the proof of usage, to effect a construction of the lease, which its language does not import, and that too, for the unjust purpose of depriving the tenant of a compensation for his labor. 1 P. & \V. 15 226 SUPREME COURT [Demi v. Bossier.] The opinion of the court was delivered by HUSTON, J. By the common law, a tenant after the expiration of his lease, and removal from the tenement, had no right to return ; and hence the crops growing and ungathered were lost to him. The law in this state has varied from that, as to what has been called the way-going crop, which, heretofore, has been confined to grain sown in the autumn, to be reaped the next harvest ; and no difference has yet been established between a tenant who pays a rent in money, and one who gives, as rent to his landlord, a share of the produce of the farm. The usage and general understanding of the country form a part of general agreements, unless otherwise specified : Stultz v. Dickey, 5 Binn. 285. If a tenant rents a farm for one year, it is understood he is to take one crop of each kind of grain cultivated, and that he is to mow as many crops of grass as the meadows will produce. If a tenant on a moneyed rent, can sow with oats, flax or other grain in March, before his lease expires, which is always about the first of April, he in fact gets the benefit of the farm for two years, although he pays the rent of but one. So, if he takes the farm on the shares, and after raising the summer crop one year, sows in March all the grounds with oats, no tenant can go on it the next year, or he will have no land to cultivate for spring crops, and can put in fall crops, but on oats stubble, which yields badly. The law has been well and justly settled, and favor- ably to tenants. The present attempt is unreasonable, and preg- nant with injustice to one party, and would eventuate in injury to tenants as a class ; for the tenant who rents a farm for the ensuing year, will not know whether he can put in a spring crop until he knows whether the month of March will be clement or inclement, or whether the previous tenant was regardful of the rights and interests of others, and the general laws and usages of the country. The conduct of Demi, in this particular case, was unreasonable and unjust, and to sanction it would only introduce a new clause into leases. It is contrary to the common law, to the law as settled in this state, and is not pretended to be sanctioned by any usage. Judgment affirmed. Referred to, 2 P. & W. 66. Dec. 1829.] OF PENNSYLVANIA. 227 Royer et al. against Tate et al. A decree which does not dispose of the whole fund for distribution, under the Act of Assembly "relative to the distribution of money arising from sheriffs' and coroners' sales," is not ti final decree, and an apjreal taken from such decree will be quashed. Tins was an appeal taken by Abraham Royer, John Stultzfua and Peter Eckcrt, from the decree of the Court of Common Pleas of Lancaster county, in the matter of the distribution of the money raised by the sale of the real estate of James Hamilton, deceased, by the sheriff. On the 2d of September 1825, the sheriff was ruled to pay the money into court, and notice to J. Hopkins, Esq., at bar, was noted on the record. On the Oth September 1825 he paid $7735.25, the net proceeds, into court. On the 30th September 1825 a rule was taken to show cause why the judgment of Susannah Ellrnaker should not be paid out of these proceeds, and on the 20th December 1825, a similar rule was taken in behalf of Hamilton, Potter, Ram- sey and Clark, other judgment-creditors of J. Hamilton, deceased. On the 13th of March 1827, these rules were argued; and on the 1st May 1827, the court decreed that "the judgments obtained by Tate and wife, No. 7, to April term 1817 ; Joshua Potter to . Caufman, 4 S. & R. 31.X. The affidavit is stronger than that required by the act, and it is well taken by the attorney of the appellants. PER CURIAM. This appeal must be quashed. There is yet no final decree. The Court of Common Pleas \\\\i*i have all the parties before them, and dispose of the whole fund. This must be done to make a final decree. Appeal quashed. NOTE. ROGERS, J., was sitting at Nisi Prius in Philadelphia, during thi* adjourned court, and took no part in the judgments given at it. CASES IN OP PENNSYLVANIA. LANCASTER MAY TERM, 1830. Crosby et al. against Massey et al. When a judgment is irregularly entered against a defendant, by default of appearance, who being informed of it, neglects or refuses for two tern.s, and until after a writ of inquiry of damages is executed, to make an appli- cation to have the judgment set aside, it will not be reversed on a writ of error. The time and manner of tiling narr., of appearing, pleading and signing judgment for want of plea, &c., are matters of practice regulated by rules of court ; and any one complaining of irregularity therein, must apply for redress as soon as he knows of the injury. ERROR to the Common Pleas of Schuylkill county. This action was instituted by the entry of the following agree- ment between the parties : Lvdia Massev and others ) . . , , ... * " [ Amicable action in trespass on v. > i Neil Crosby and Patrick Crosby, j We, the defendants above-named, hereby authorize and require the prothonotary of the Court of Common Pleas of Schuylkill county, to enter up the above-stated amicable action of trespass on the case to July term 1827, and we agree that the same proceed- ings be had thereon, as though we had been regularly summoned. In witness whereof, we have hereunto set our hands, the four- teenth day of June 1827. NIEL CKOSHY, PATRICK CROSBY. I agree to the entering up of the above amicable action on the terms above mentioned. JOHN* RAN.VAN. Att'y for Plaintiffs (229) 230 SUPREME COURT [Lancaster [Crosby v. Massey.] This agreement being entered on the record to July term 1827, a declaration for use and occupation of a saw-mill, was filed on the 28th September 1827, and, on the same day, a judgment by default of appearance, was signed by the plaintiff. On the 20th of Feb- ruary 1828, a writ of inquiry of damages was issued, by which the damages were assessed at 3325. On, the 31st March 1828, Mr. Locscr appeared for the defendants, and obtained a rule to show cause why the judgment and inquisition should not be set aside. In October 1828, upon hearing the testimony, the court discharged the rule, and entered judgment on the inquisition. The substance of the testimony was, that the next day after the judgment was entered, Mr. Bannan, the plaintiffs' attorney, gave notice to the defendants that judgment had been entered, at which they expressed their surprise, and said that Mr. Locscr had been employed by them to make defence. The next day Mr. Loeser called on Mr. Bannan, and requested him to open the judgment, which he refused to do, but told Mr. Loeser he might ask the court to set it aside. At the next court after this conversation, Mr. Loeser said to Mr. Bannan, that he was prepared to make a motion to have the judgment opened, but he had concluded that he would not, as his clients would derive an advantage from the judgment, in another action which was pending, in which his clients were interested. Errors assigned. 1. The court erred in rendering judgment against the defendants by default, after they had both appeared in their proper persons. 2. The court erred in refusing to set aside the judgment and inquisition. 3. The court erred in rendering final judgment on the inquisi- tion. 4. The interlocutory judgment entered on the 28th September 1827, is uncertain and void, and is no foundation for a writ of inquiry of damages. Locscr, for plaintiff in error. This is a judgment by default of appearance, entered in vacation on the same day the declaration was filed, when there was, in fact, an appearance by the defendants. The agreement by which the action was instituted was an appear- ance, and the defendants were entitled to notice of any further proceeding. Bannan, for defendant in error. The agreement amounts to nothing more than a waiver of the writ of summons, whereby that expense might be saved, the words are, "and we agree that the same proceedings be had thereon, as though we had been regularly summoned." The judgment was not void, and if it is irregular, the party must take the earliest opportunity to have the error corrected May 1830.] OF PENNSYLVANIA. 231 [Crosby v. Massey.] Here the defendants knew of the judgment the next day after it was entered. At the next term their attorney refused to make the application to have the judgment opened, and did not make it until after two terms had elapsed, and the plaintiffs had been put to the expense of executing a writ of inquiry of damages. This is an acquiescence which concludes the defendants : 1 Penn. Prac. 02 ; Morrison v. Wetherill, 8 S. & R. 502 ; Tidd's Prac. 434, 507 : 2 Arch. Prac. 201 ; Cochran v. Parker, 6 S. R. 549. Buchanan, in reply. The judgment being erroneous, the attor- ney of the party had no power to release the errors ; and much less should his loose declarations be so constructed as to conclude the defendants. By a rule of the court of Schuylkill county, " no parol agreement between attorneys is binding." The judgment by default was interlocutory, upon which no writ of error would lie, until the writ of inquiry was executed; the de- fendants, therefore, have taken the earliest opportunity, and the mode pointed out by law to correct an erroneous judgment, they have not acquiesced. In the case of Ranck i. Becker, 12 S. & R. 412, this court reversed the judgment entered upon an award of arbitrators, although the party had entered bail for the stay of execution. The opinion of the court was delivered by HUSTON, J., (who stated the facts of the case). It has been con- tended here that the judgment was irregularly signed, was erroneous, that defendants had a right to wait till final judgment on the inqui- sition, and if the inquest awarded a small sum, acquiesce ; if a large one, take a writ of error and reverse it. Perhaps there was a time when such was the law, but much of what was once the subject of a writ of error in England, or of audita querela is now relieved from on motion, and 1 doubt whether any counsel would venture to argue a writ of error on England in such a case as the present. The time and manner of filing a narr. of appearing and pleading by defendant, and of signing judgments for want of a plea, &e., are matters of practice regulated by rules of court, and the practice of the court, and irregularities in any of these respects are universally remedied by applications to the court, whose rules or practice is supposed to have been violated : Tidd's Prac. 484 ; 8 8. & R. 502. One universal rule is, that the pe/son complaining of any irregularity must apply for redress as soon as he knows of the injury. In no court is he allowed to lie by. con- ceal his complaint, subject the other party to delav. expense and perhaps total loss, and after all this to obtain redress for a mistake. of which he had full knowledge a.s soon as it was committed. The complaint here is that the entry of the amicable suit was, in effect, an appearance by the defendants, and they were entitled to a 232 SUPREME COURT [Lancaster [Crosby r. Massey.] rule to plead. The plaintiffs contend it in fact only amounted to an acknowledgment of service of writ, but not to an appearance. I think the plaintiff was wrong, that the judgment was irregular, and would have been, or ought to have been, set aside if the appli- cation had been made at the next term. The plaintiff's attorney seems to have thought so. It was not made at the next or even the second term. If we reverse here, we take from the Common Pleas all power of regulating their own practice, all control over counsel, and causes in their court ; we assume the control and supervision of every rule in every cause in the state, and all this not to effect justice, but to restore an obsolete practice of disregarding right and justice, and deciding every cause according to the strict accu- racy and acumen of the pleader. I repeat what has been often said, that the several Courts of Com- mon Pleas have a right to make their own rules, and regulate their own practice. It is possible a rule of court may be contrary to an Act of Assembly and illegal. I don't say we will not in any case reverse for a practice under such a rule. The rules and practice followed in this case are salutary and wise, and the decision of the court on these rules right. I am not sure that such a decision as that com- plained of in this case, depending on several rules of court and the practice under them, and where the facts were brought before the court on affidavit, is the subject of a writ of error. I do not say, however, that we will not in any case reconsider a case so brought before us. In the present case the judgment of the court below is affirmed. Judgment affirmed. Referred to, 11 C. 418 ; 3 Norris 261. "Wengert et al. against Beashore. An action for maliciously suing out of a capias ad respondendum and hold- ing the defendant to hail, is not to he favored ; and clear proof of want of prohahle cause is necessary to support it. As a general rule, it may he laid down that such an action cannot be sup- ported, when, in the original action, the defendant was obliged to set up some collateral matter by way of defence, which did not appear on the declaration or the face of the instrument declared on. Where such original action was brought by executors, maliciously and with- out probable cause, in an action therefor against them, they must be sued in their individual capacity: a writ and declaration calling them executors is not mere description or surplusage, but is error. ERROR to Lebanon county. This was an action on the case brought by David Beashore against Martin Wengert and Abraham Wengert, executors of Ludwig May 1830.] OF PENNSYLVANIA. 233 [Wengert v. Seashore.] Zearing, deceased, for maliciously suing out a capias ad rcspon- dendum against him, and requiring bail without probable cause of action. The facts of the case were these : Ludwick Zearing, in his life- time, to wit, in 1817, held David Beashore's bond for 331*0, and upon his death, it came into the hands of the defendants, Martin Wengert and Abraham Wengert, his executors, who to April term 1824, brought suit upon the said bond by issuing a capias ad respondendum, and required bail in $500 ; the same day it issued, the defendant, Beashore, was taken by the sheriff, and not being able to get bail he was imprisoned. A rule of reference was entered by the defendant, and arbitrators were chosen, who met on the 12th April 1824 ; the defendant then proved the consideration of the bond, and that it had failed ; the arbitrators reported no cause of action. Upon the report being filed, the plaintiffs, Martin and Abraham Wengert, by advice of their counsel, refused to discharge the defendant, Beashore, from custody. No appeal was entered by the plaintiffs, and after the twenty days had elapsed, the defendant was discharged on habeas corpus, and brought the present suit to recover damages. The following points were put to the court by the defendants, upon which they requested them to charge the jury: 1. That this action cannot be supported by the plaintiff, in its present form. 2. That no action for a malicious prosecution can be maintained against executors. 3. That the plaintiff has misconceived his remedy ; that if any injury has been sustained by him, he ought to have sought redress by an action for false imprisonment against the defendants in their individual capacity, and that no action can be maintained by the plaintiff against the defendants in their representative capacity, as the executors of the said Ludwig /earing, deceased, for the sup- posed injury set forth in the declaration. 4. That the plaintiff, before he can recover in this action, must prove malice in the defendants, and want of probable cause at the time suit was brought. 5. That when a plaintiff sues out a writ, such as in the present case, founded on the bond or writing obligatory of the defendants, no action for a malicious prosecution can be supported : for the wnnt of probable cause, does not, nor cannot exist. (.5. That defendants having called upon counsel, and issued the writ in pursuance of his directions, and acting as executors of Lud- wig /earing, excludes in law, every presumption of malice in the defendants. 7. The want of probable cause alone, and the defendants having failed to recover in the suit which they brought against David Beashore, are not circumstances sufficient in themselves to warrant 234 SUPREME COURT {Lancaster [Wengert v. Beashore.] the jury in finding a verdict in favor of the plaintiffs ; unless the defendants knew the want of probable cause at the time they brought their suit. That the jury cannot infer malice in the de- fendants from the circumstance of their failing to recover in their suit on the bond against David Beashore. To which the court answered : 1. This action can be supported and maintained by the plaintiff in its present form, the styling of the executors defendants is merely a personal description. 2. It cannot be maintained against them as executors. 3. This suit is not against them as executors, in their represen- tative character ; and they are answerable in this suit, in their indi- vidual capacity, notwithstanding they are styled executors, and the plaintiff has not misconceived his remedy. 4. The jury must be satisfied, from all the circumstances given in evidence, that the suit against the present plaintiff was brought maliciously, and without probable cause ; malice and want of pro- bable cause both are necessary, and must be shown, in order to maintain an action for a malicious prosecution, either of a civil pro- ceeding or criminal prosecution. Express malice is not required to be proved ; malice may be implied. For if the plaintiff's case proves that the proceedings against him were groundless, and that the defendants knew it ; then malice will be implied. Holding to bail where the plaintiff has no cause of action, and knows that he has no cause of action, if done for the purpose of vexation, entitles the party aggrieved to an action for a malicious prosecution. 5. Want of probable cause may exist where a suit is brought on' a bond. The circumstance of a suit being founded on a bond or writing obligatory, is no bar to an action for malicious prosecu- tion. 6. If, upon a fair representation of facts to the counsel, by the defendants, he advised the bringing of a suit upon the bond, and guided by that advice, they brought suit on that bond, the law will not impute malice to the defendants ; for the clients ought not to suffer by the honest mistake of their counsel, if they innocently acted by his advice. But if they did not make a fair representa- tion of facts to their counsel, and knew the proceedings on the bond were groundless, the law will impute malice to the defendants. Whether the suit was brought maliciously and for the purpose of oppressing the defendant, is a conclusion of fact to be drawn by the jury from all the circumstances of the case. It does not follow from the plaintiff's failure to recover in the action on the bond, that the suit was brought with a view to vex, and improperly injure the defendant in the case. 7. The want of probable cause alone, and the defendants having failed to recover in the suit which they brought against David Beashore, are not circumstances in themselves sufficient to warrant May 1830.J OF PENNSYLVANIA. 235 [Wengert v. Seashore. | the jury in finding a verdict in favor of the plaintiff, unless the de- fendants knew the want of probable cause at the time when they brought their suit. The jury cannot infer malice in the defend- ants from the circumstances of their failing to recover in their suit on the bond. The charge of the court was assigned as error. Kline and Weidman, for plaintiff in error. J. A. Fisher, for defendant in error. The opinion of the court was delivered by Ross, J. The action for malicious prosecution is very different m that of maliciously and vexatiously arresting and holding defendant to bail. Many reasons might be assigned why the one should be sustained, which would not apply to the other. In the former, the defendant, even if acquitted, recovers no costs ; in the latter, a verdict in favor of defendant entitles him to costs. In the former, the defendant has no other redress for any injury he may have received ; in the latter, he may cite the plaintiff before a judge to show his cause of action, and if no sufficient cause be shown, he will be discharged on common bail. In the former, if felony, punishable with death, he may not be allowed to give bail ; in the latter, the defendant is always allowed to give bail. In the former, he can only be exonerated by a trial and acquittal ; in the latter, the defendant may have any oppressive, vexatious or illegal process set aside, on motion to the court. In the former, the defendant cannot demand a writ of error as a matter of right ; in the latter, he is entitled to it. In the former, the defendant's life may be put in jeopardy ; in the latter it never can : no punishment can be inflicted on him. In the former, the prosecutor gives no bail ; in the latter, the plaintiff, until of late, must have given real pledges, who, on failure of plaintiff to prosecute his suit, &c., were liable to be amerced, and the plaintiff himself was amerceable />A> faho clamor e, liable to costs. See 1 Sel. Pr., Introd. 4'.'. ;>0, f>'J ; l>ull. N. P. 11. The action for malicious prosecution, properly so called, has often been brought in this state, and sustained bv the courts; the action for maliciously and vexatiously arresting and holding defendant to bail, it is believed, has seldom been brought in this state, and has never received a judicial recognition. Vet it must be understood that no doubt is intended to be intimated of its lying in proper cases, and under proper restrictions ; but it is not to be favored. Enough has been said to show there is a substantial difference between the two descriptions of action. Yet from not attending to the want of similarity between them, they have been. in modern times, considered as analogous. The same decisions and principles of law have been applied to both. The practice of the courts in England, as well as the law as to 236 SUPREME COURT [Lancaster [Wengert r. Beashore.] arrests and holding to bail, is very dissimilar from the practice in this state. In England, by the statute 12 Geo. 1, c. 29, certain requisites must be complied with, before any one can be arrested on civil process. The courts strictly require a positive affidavit ; the sum must be specified in it, which sum must be endorsed on the back of the writ of process : for which so endorsed the sheriff shall take bail, and for no more. If no such affidavit and endorsement be made, the defendant is not to be arrested, let the amount of debt be what it may : 1 Sel. Pr., Introd. 59. In this state, it has long been the practice to issue the capias without any affidavit, except in a very few cases sounding exclu- sively in damages, on which the attorney directs the endorsement of such bail as he may think sufficient. If the defendant think himself aggrieved, he may apply to a single judge in vacation, or to the court in term-time, to be discharged on common bail, or to have it mitigated. Until application is made to the judge or to the court, the affidavit of the debt is seldom made ; and even then the plain- tiff's attorney often obtains time to notify the plaintiff to come in and make the requisite affidavit. Many of those suits are brought with a view to submit them to arbitration, under the law of 1806, by which means they partially obtain, it is said, the benefit of a bill of disclosure; acquiring from the investigation before the arbitra- tors the evidence of a cause of action they had nothing but a mere suspicion of before. By the rules of court, where the affidavit is not positive, but yet sufficient to convince the judge that there is a good cause of action, especially where it is founded on a bond, note, letter, or other paper signed by the defendant, the judge may, at his discretion, hold the defendant to bail ; thus giving a power to the judge to dispense with the production of a positive affidavit of the debt and the amount thereof, if a paper signed by the defendant is produced. The rule indicates in strong terms, and in language that cannot be misunderstood, that a bond signed by the defendant is a probable cause of action. These matters have been brought into view for the purpose of showing that instead of relaxing the restrictions and limitations to which a malicious and vexatious suit is subjected in the courts of G/eat Britain, there is every reason here that exists there, with many additional ones peculiar to this state, arising out of the nature and mode of our proceedings, why these restrictions and limitations should be increased and not diminished. In the case of Sterling r. Adams, 3 Day 411, in which most of the c.-i-ses are brought under review, analyzed, commented upon, and contrasted with great ability, the counsel for the plaintiff admitted " that a person must be guilty of a very gross abuse of the right of suing, before he will be liable for vexation. To the exercise of that right great indulgence is given. If the object of the plain- tiff be in any degree to obtain right, his temper is not to be re- May 1830.] OF PENNSYLVANIA. 237 [Wengert o. Beashore.J garded. When all the facts known or believed by the plaintiff, or existing without his knowledge, would afford any probability to an honest rnind that there ought to be a recovery, probable cause in law exists, and a suit, however unsuccessful, injurious, or vindic- tive, will entitle the defendant to no remuneration. Here is often great wrong and no remedy ; it is " damnum absque injuria.'' A man, from a malicious motive, may take upon himself a prosecu- tion for real guilt, or he may, from circumstances which he really believes, proceed upon the apparent guilt, and in neither case is he liable to this kind of action : 6 Mod. 73. To support it there must be express malice, without any color of cause : Holt 4 ; C Mod. 25. He may, therefore, from malicious motives, proceed to collect a real debt by the process of capias and bail, or he may, from cir- cumstances which he really believes, proceed upon the apparent evidence of debt, to collect it by capias arid bail, and in neither case be liable to an action for vexation. The plaintiff's declaration in this action shows that there was a probable cause for the original suit. It admits the suit was founded on a bond giv.en to the testa- tor, Ludwig Zearing, in his lifetime. Want of probable cause cannot be implied from an acquittal of a defendant in a criminal prosecution, or a failure to recover in a civil suit : 2 Selw. X. P. 1057 in note 2 ; Day's Coke upon Litt. 101 a, note 297. Although an action for a malicious prosecution will lie, it is not to be favored: 1 Salk. 15 ; Bull. N. P. 14 ; 1 Wilson 231. It is difficult to define with precision in what cases and under what circumstances this action will lie. It may, however, be safely laid down as a general proposition, that where in the original action the defendant* is obliged to set up some collateral matter by way of justification, or defence, which does not appear on the declaration, or the face of the instrument declared on, probable cause is admitted. This propo- sition is supported by precedent and reason : 3 Day 432. These principles, when viewed collectively, manifestly show that the plain- tiffs in error had sufficient probable cause to shield them from this action, even if the suit had been against them in their individual capacity. But this suit is clearly against them in their represent- ative capacity as executors. It is for acts done by them as execu- tors. The declaration recites that the writ was issued by them as executors on a bond given to the testator, anil the proceedings which took place on that writ as the foundation of defendant's claim to damages. But it is contended that all these recitals may be re- jected as surplusage, as merely descriptive of the persons : and so the court below charged the jury. The answer to this position will be found in Robins v. Robins, 1 Salk. 15, in which the complaint was that the plaintiff caused the defendant to be arrested and hold to bail, where by law no bail was required : per Holt. C. J. "This is a tender action, you must show that the plaintiff being indebted to the defendant in so much, the defendant took out such a writ 238 SUPREME COURT [Lancaster [Wengert r. Beashore.] for so much more on purpose to hold him to bail you should set out the writ." If it is necessary to set out the writ in the original suit, it is equally true that it is necessary to prove it as set out. The record of the original action must be produced on the trial, and given in evidence: '2 Selw. N. P. 1062. It must correspond with allegations in the declaration, or it cannot be given in evidence. It therefore cannot be considered as surplusage. It is an essential and material allegation, without the proof of which the plaintiff could not support his action. The declaration ought to set forth the sum due, and the process specially, and that the first action is determined: see 2 Selw. N. P. 1060; Yelv. 110. The action then is against the plaintiffs in error as executors, for acts done by them as executors. It is the first attempt, it is believed, that ever had been made to support such an action. No such case has been produced, and it is believed none such can be found in the books, or the industry of the defendant's counsel would have discovered it. It would be an extension of the remedy by this kind of action, which it has already been shown ought never to be permitted. Executors can only oidy be made liable in their individual capacity, if at all, for acts done by them in their official character, by such irregular, improper and gross misconduct as would render them trespassers at> initio. In such a case, trespass vi et armis, and not case, would be the remedy. Deplorable would be the situation of executors if they would be made liable in actions for vexatious suits. They are bound to use every diligence in collecting decedent's debts. Not oidy to know themselves that they could not be recovered, but to be able to show satisfactorily in the settlement of their accounts to a querulous legatee or creditor, that they could not be collected. They may know a book debt or note is barred by the Statute of Limitations, but they cannot know that the debtor will avail himself of that defence. They may know that a bond will be presumed to have been paid from lapse of time, or that the obligor has some defence arising out of other transactions, or depending on some collateral matters involving intricate questions of law and fact. But they are not, therefore, to refrain from bringing suit, nor to be deterred from doing so by being in danger of subjecting themselves to an action for vexation. Tins would be contrary to policv arid common sense, because it would be to say to them if you neglect to enforce the collection of the decedent s debts with all due diligence, you shall be liable for such neglect, but if you attempt to do it by the ordi- nary process of the law, you must run the risk of rendering your- selves liable to a vexatious and malicious suit. This would be placing executors on the bed of Procrustes. It therefore appears that on an examination of this cause on principle, this action can- not be supported. The charge of the court on the first point that it could be supported and that styling the defendants executors, May 1830.] OF PENNSYLVANIA. 239 [Wengert v. Beiwhore.] was merely personal description, was incorrect. If it be examined by a comparison with the decisions in each particular case, where the question has arisen, what shall amount to a reasonable or probable cause, it will be found that the court were equally incor- rect. In this cause, the bond to the testator in his lifetime, coming to the hands of the executors, appearing on the face of it, to be due and unsatisfied, was much stronger probable cause than has been considered in most cases found in the books, sufficient to protect plaintiffs from actions for malicious prosecutions or vexatious suits. Many of the cases will be found collected in Day's note to Coke upon Litt. 101 a, note 297, and in 3 Day 411 ; Selw. N. P. 1057-8. A sufficient probable cause is laid in the defendant's declaration in this very action ; no averment being laid that the plaintiff knew the bond was paid, or in any way satisfied. The question of probable cause is a mixed proposition of law and fact. Whether the circumstances, alleged to show it probable or not probable, arc true and existed, is a matter of fact ; but whether supposing them true, they amount to a probable cause, is a question of law: 1 Wilson 232; Day's Coke upon Litt. 101 , note 2i>7; Bull. N. P. 14. The plaintiffs in error had, clearly, reasonable and probable cause for arresting the defendant and holding him to bail. The court should have so instructed the jury. They should have informed them that the fact not being disputed, but expressly set forth in defendant's declaration, that the original action was founded on a bond, which was given to Zearing in his lifetime, and which came to the hands of plaintiffs in error as executors, appearing on its face to be due and unsatisfied, was a sufficient probable cause to justify the plaintiffs in error in arresting and holding defendant to bail, and that the verdict must be for the plaintiffs in error. There was also error, therefore, in the charge on the fourth and fifth points. The other points of the charge are too vague to give any accurate information to the jury. Upon the whole, it sufficiently appears that in this cause, the plaintiff" below should have been nonsuited, or not permitted to sustain his action. Judgment reversed. The proposition that want of probable cause ia indispensable to an action for maliciously suing out a capius ad respondendum, is declared to be erro- neous by UmsoN", C. J., in Herman r. Brookerhoff, 8 W. 241. Referred to, 14 Smith 1IS7, 290. 240 SUPREME COURT [Lancaster Finncy's Adm'rs. against The Commonwealth. IV ERROR. Lion creditors are to look to the application of the fund on which they have a lion, at their peril : everything which a due attention to their interest would have entitled them to receive being considered us paid by operation of law. us regards the debtor. The defendant in a judgment on a recognisance for the price of land, taken at a valuation in the Orphans' Court, gives security for the stay of execution allowed bv the Act of Assembly, after which the land is sold by the sheriff, and the money brought into court. The plaintiff, and other persons enti- tled, agree that the debts of a deceased brother, who died in the lifetime of the lather, should be paid out of his estate as liens, although in point of fact they were not liens, and the proceeds of sale are thus exhausted, and not applied to pay the judgment, which was a lien. Held, that the liability of the surety on the recognisance was discharged, and the agreement of the defendant in the judgment to the misapplication of the fund will not, as re- spects the surety, alter the case. ERROR to the Court of Common Pleas of the county of Dauphin. This was a scire facias at the suit of the Commonwealth of Penn- sylvania, for the use of John Allen, one of the heirs and legal representatives of Joseph Allen, deceased, against Ann Finney, Thomas Finney and William Finney, administrators of Samuel Finney, deceased, bail of James Allen, issued upon a recognisance entered into by Samuel Finney, as the surety of James Allen, to obtain the stay of execution under the Act of Assembly, upon a judgment in favor of the plaintiff against the said James Allen and Christian Forney. This judgment was obtained on a recognisance given by James Allen, with the said Forney, as his security, in the Orphans' Court, upon taking the real estate of his father, Joseph Allen, deceased, at the appraisement. The recognisance, on which this scire facias issued, was entered into by James Allen, the defendant, on the 3d of January 1820 ; and the plaintiff in the judgment to December term 18:20, issued an execution thereon, which was levied on the land of James Allen, and that was sold for $8050, which was brought into court, and auditors appointed to ascertain the debts due by Joseph Allen, deceased. These auditors reported the debts due by the estate of Joseph Allen, deceased, which amounted to the sum of $728.25; and also, that by an agree- ment of the surviving heirs and legatees (of whom the plaintiff John was one), of the said deceased, in writing, it was stipulated that the executors of the said deceased should pay the debts of Tristram Allen, one of the sons of Joseph, who died in his father's lifetime, out of the estate of the said Joseph, and that considering the debts of Tristram, under this agreement, as the debts of Joseph, they reported those debts. They amounted to the sum of $24f>0 ; and among them there was a judgment in favor of Samuel Finney, the defendant's intestate, for 130.08. The report on the 24th March May 1830.] OF PENNSYLVANIA. 241 [Finney's Adm'rs. r. Commonwealth.] 1823, was confirmed by the court, arid a decree made that the money should be paid over according to the report. Tliis scire facias was brought to April term 1823, and a verdict under a charge of the court favorable to the plaintiff, which was exccpted to, having passed for the plaintiff', error was brought by the defendant. Fisher, for the plaintiff in error, argued that the application of the proceeds of the sale of the real estate of Jarnes Allen, to the payment of the debts of Tristram (which were no lien on the fund), by the agreement of the plaintiff, instead of applying them to pay his judgment against James, which was a lien, discharged the liability of the defendant on his recognisance upon that judgment. Any act of the obligee which affects the surety will discharge him : Commonwealth v. Miller, 8 S. & R. 452 ; Diermond v. Rob- inson, 2 Yeates 324. Here the means of satisfaction were in the hands of the plaintiff; he parted with them, and cannot now resort to the surety : Ludlow v. Simond, 2 Games' Cas. in Error 29, 30. By any act which changes the situation of the surety he is dis- charged : Rathbone v. Warren, 10 Johns. R. 588, 590 ; 3 Wils. 539 ; Phillips v. Thompson, 2 Johns. Oh. 418 ; Bellas v. Haas, 16 S. & R. 252. Douglas and Elder, contra. The opinion of the court was delivered by GIBSON, C. J. In the Bank of Pennsylvania v. Winger, 1 Rawle 295, it was held that lien-creditors are to look to the application of the fund at their peril, everything which a due attention to their interest would have entitled them to receive, being considered as paid by operation of law as regards the debtor. So little was this principle doubted that some of the judges inclined to think it superior to the equity of a creditor who has but one fund, against a prior creditor who might otherwise resort to either of two ; and it was barely held that it is not. But no one entertained the least doubt that where the creditor is entitled to satisfaction out of the proceeds of the land, both at law and in equity, a loss shall be borne by him whose supineness occasioned it ; much more so. where it has been produced by his positive agency. What then is the case here? The defendant in a judgment on a recognisance for the price of land, taken at a valuation in the Orphans' Court, gives security to entitle himself to the stay of execution allowed by the Act of Assembly, after which the land is sold by the sheriff and the money brought into court. The plaintiff and the other persons entitled to the estate of the decedent, appear before auditors appointed to report the state of the liens, and agree that the executors of a deceased brother who had died in the lifetime of their father, should pav his debts out of i p. & w. IG 242 SUPREME COURT [Finney's Adm'rs. v. Commonwealth.] the estate, in consequence of which, these debts are reported and paid as liens, although indisputably not so in fact ; and the proceeds of the sale being thus exhausted, the plaintiff proceeds on the recog- nisance given to obtain a stay of execution. Now, to say nothing of the rule which protects a surety, where the creditor has parted with the means of obtaining satisfaction from the principal, it is plain here that if the levy and sale were actual satisfaction of the original judgment, there could be no breach of the condition of the recognisance. But no one will pretend that the plaintiff could have had further recourse to the original debtor, had he not consented before the auditors, to apply the proceeds of his land to the pay- ment of his deceased brother's debts. But he had no right thus to consent, in prejudice of the rights of his surety for whose indemnity the land stood pledged by the lien of the judgment, to the benefit of which he would have become entitled by payment of the debt, but of which benefit he will be deprived, if he is compelled to pay it now, after the fruits of the lien have been swept away by a mis- application of them. The consent of the original defendant, then, being fraudulent, is to be laid out of the case, and the original judg- ment treated as if it were satisfied even as to him ; and if so, it would be strange, if payment by him would not discharge the debt in favor of his surety. Any other construction would enable the children to manage matters so as not only to enjoy the full benefit of their father's estate, but to cast the burden of a deceased brother's debts upon a stranger ; and this monstrous result would be estab- lished by confirming the judgment of the court below. On the other points touched, but not pressed, we deem it unnecessary to express our opinion. Judgment reversed. ROGERS and HUSTON, JJ., did not hear the argument, and took no part in the judgment. Referred to, 3 R. 167 ; 9 W. & S. 21 ; 2 H. 274. May 1830.] OF PENNSYLVANIA. 243 Jonestown Koad. A practice in the Court of Quarter Sessions of appointing twelve frop- holders as reviewers of a road, from which the parties in interest shall strike six, the remaining six beinij the reviewers, is contrary to the express provision of the law, and erroneous. But when the petitioners for the re- view pray for the appointment of hcel.ee and then refuse to strike, because some of the persons appointed are exceptionable, it is not error in the Court of Quarter Sessions to refuse to appoint others in the place of those four, and confirm the view. CERTIORARI to the Quarter Sessions of Lebanon county. At August sessions 1828, a petition was presented for a view of a road, which was granted. The viewers reported in favor of the road, to November sessions 1828, to which exceptions were filed, which upon argument were overruled, and the report con- firmed nisi, when those who were opposed to the road petitioned the court to appoint (according to their practice), twelve freeholders, from whom the parties might strike six, and the remaining six should review the said road. The court having appointed the twelve freeholders, the parties met in vacation, as was the custom, to strike three each, when the petitioners discovered that four of the twelve nominated hy the court, were relations of the petitioners for the view, and for that reason refused to strike, but at the next sessions petitioned the court to appoint others in their room. This the court refused to do, and on motion confirmed the report of the viewers. There were several errors assigned, none of which were insisted upon but one. That the court erred in not appointing a competent number of freeholders to review the road. Weidman, for the review. Norris, for the view. The opinion of the court was delivered oy HUSTON, J. The complainants in this case have filed a number of exceptions to the petition for, and report of this road. There is no ground for any of them, except one ; and that one not filed until more than one year after the return to this court. The 1st section of the Act of the Gth April 1802, for laying out roads, &c., directs, that the court, on petition, shall in open court, appoint six discreet and reputable freeholders, Quarter Sessions thought the conduct of the complainants captious and intended for delay, ami they thought the object of their rule May 1830.] OF PENNSYLVANIA. 245 [Jonestown Road.] was to give an opportunity of obtaining a review, composed of men, to none of whom there was any exception. There was such oppor- tunity given in this case, and if no review was had, it was owing to the fault of the petitioners ; a majority of the court overrule the exceptions, and affirm the proceedings of the Quarter Sessions, be- cause we are unwilling to sanction the conduct of parties, who by their own mistakes, or their own obstinacy, occasion irregularities, and then endeavor to take advantage of them, by applying to a superior court. . Proceedings affirmed. SMITH, J., and Ross, J., dissented. Ulrich against Voneida. A bond, with a warrant of attorney to confess judgment, authorizes the entry of but one judgment : the entry of a second, upon the same warrant, is wholly irregular. It is competent for a terre-tonant, who is brought in by seire facias to revive a judgment to show that the original judgment was entered without authority, was fraudulent, or otherwise wholly irregular. ERROR to the Common Pleas of Lebanon county. On the 15th of February 1820, a judgment was entered in the Common Pleas of Lebanon county, by virtue of a warrant of attor- ney, Jacob Voneida v. George Ulrich, for 500, and within the period of five years, to wit: to April term 1825, a scire facias issued to revive that judgment, with notice to Henry Newman, then terre-tenant of the land bound by the original judgment. At August term 1825, the defendant filed an affidavit of defence and pleaded, payment with leave, &e. The cause was then removed into the Circuit Court, from which it was remanded to the Common Pleas, in May 1828, where it was down for trial in August 1828. On the 7th August, Weidman, attorney for the defendant, moved the court for a rule to show cause why the entry of the original judgment should not be stricken from the record, together with :ill entries and proceedings thereon ; on the ground that a judgment had been previously entered, upon the same warrant of attorney, in the county of Berks. On argument, the court refused to grant the motion. 14th August 1828, the defendant entered the plea of mil tiel record, upon which the issue was joined, which the court pro- ceeded to try. The plaintiff having shown the original judgment in 246 SUPREME COURT [Lancaster [Ulrich v. Voneida.] Lebanon county ; the defendant, to maintain the issue on his part, called upon Morris, the plaintiff's attorney, to produce the bond and warrant upon which the original judgment was entered, which he refused to do. The defendant then gave in evidence the copy of a record of a judgment entered on the 14th February 1820, in the county of Berks, on a bond and warrant of attorney of the same date and terms, as were recited in the judgment which was then trying. After argument, the court decided in favor of the plaintiff, to which exception was taken by the defendant. The defendant's counsel then asked permission to add the pica of non est factum, as to the bond and warrant, upon which the original judgment was entered, and that said judgment was entered without authority. This plea was objected to by the plaintiff's counsel, and rejected by the court, to which exception was taken by defendant. The jury being then sworn, and the plaintiff having given in evidence the record of the original judgment, the defendant's coun- sel asked the court to discharge the jury, and delay the trial of the cause, upon his exhibiting the record of a judgment entered in the county of Berks, upon the same warrant of attorney, but prior to the entry of the judgment in the county of Lebanon, and upon parol proof, that an endorsement on the said bond and warrant, which was then in possession of plaintiff's attorney, shows that the judgment in each county was entered upon the same warrant, and then again asked the court to grant the defendant a rule to show cause why the original judgment should not be vacated and stricken froin the record ; which motion was refused by the court, and to which the defendant took exception. The defendant having proved a notice to JYom's, counsel for plaintiff, to produce the bond and warrant of attorney, upon which the original judgment was entered, offered parol evidence that there was an endorsement on said bond, showing that a judgment had been entered by authority thereof, in the county of Berks, prior to the entry in the county of Lebanon, which was objected to by the plaintiff, the objection was sustained and exception taken by defendant. The defendant then offered the record of the judgment in Berks county, to show fraud in the plaintiff, in enter- ing the same judgment again in Lebanon, which was objected to, overruled and exception taken by defendant. A verdict and judg- ment for the plaintiff were rendered in the court below, and this writ of error was sued out by the defendant. Errors were assigned in the opinion of the court, as contained in the several bills of exception. Wcidman (with whom was Kline], for plaintiff in error, ad- mitting the rule that a record, when its validity is put in issue in May 1830.] OF PENNSYLVANIA. 247 [Ulrich v. Voneida.] the same court, must be tried upon inspection, yet contended that this case did not couie within that rule, for by the 28th section of the Act of 24th February 1806, Purd. Dig. 409, a special mode was provided of creating a lien upon real estate. The prothonotary is authorized to make an entry of a note, bond or other instrument of writing, which contains an authority to confess judgment against the party,. and the same shall be a lien on his real estate. There is no act of the court necessary ; nor can any be legally exercised, it is not, therefore, a judgment of the court which must be tried by inspection ; but if fraud on the part of the prothonotary, or want of authority, shall be alleged, like other facts, they oust be referred to the jury. If the court had a right to try these facts they should have decided in favor of the defendant. In Martin v. Hex, 6 S. & R. 296, the very point which arises here is settled, that a judgment entered upon a warrant of attorney, upon which a judgment had been previously entered in another county is irregular. In this case the court had all the facts before them, which made it abun- dantly plain that this warrant of attorney via.sfunctus officio by the entry of the judgment in Berks county ; the same is laid down in Fairchild v. Camac, 3 Wash. C. C. R. 558. The court erred also in refusing the special plea offered by the defendant ; by the Act of the 21st March 1806, section 6, Purd. Dig. 411, the right to alter the pleadings so as to affect the merits of the cause, is given even upon the trial, and to refuse that right is error : Sharp r. Sharp, 13 S. & R. 445. The case of Ilartzel v. Reiss, 1 Binn 291, supports the position that upon the trial of the scire facias suit, even Ulrich, the original defendant, might have given in evi- dence that the original warrant of attorney was exhausted. The rule of law that no evidence shall be given as a defence to a scire facias, which goes to affect the legality of the original judgment, only applies to parties &ndprivies to that judgment, and it is always competent for a third person who becomes interested to show that the judgment is illegal or fraudulent, and this may be shown even in a collateral action : Griswold v. Stewart et al., 4 Cowen 457. Here Newman, the terre-tenant, was a purchaser of the land for a valuable consideration, and the first opportunity which the law afforded him to defend against this illegal judgment wis taken advantage of. lie could not have sustained a writ of error to reverse the original judgment : Bull. N. P. 2-32. Newman having therefore done everything which lie could do to divest his land of this illegal lien, the court having refused to open the judgment unless he can avail himself of his defence in the si-ire facias, his case is an anomaly in the law a legal defence without an oppor- tunity of making it. It was certainly competent for the defendant to show that the plaintiff acted fraudulently in entering the judg- 248 SUPREME COURT [Lancaster [Ulrich v. Voncida.] merit a second time, and that the prothonotary knew the fact also that the judgment had been entered before, and fraud is a matter of fact for the jury ; and if found by them it would have destroyed the plaintiff's right to recover : 1 Madd. Chan. 300 ; but the court would not permit us to give this evidence. Norris, for defendant in error. The motion by defendant's coun.se! on the 7th August 1828, to vacate the judgment, was the legal and only remedy of the party complaining of the entry of the judgment without authority : Cook v. Jones, Cowper 227 ; 2 Strange 1043; Cas. temp. Ilardwicke 220; Strong v. Tompkins, 8 Johns. R. 77 ; Casscl v. Cooke, 8 S. & R. 296 ; Neff v. Barr, 14 Id. 16(5 ; Lysle v. Williams, 15 Id. 135; Kalbach v. Fisher, 1 Rawlc 323. The defendant, upon his motion to vacate, was fully heard. All the evidence offered on the trial, under the plea of payment and notice was given to the court, and after hearing it, and the counsel of George Ulrich in support of it, the court rejected the applica- tion. This judgment upon motion, and on a disclosure of the merits of the defendant, is decisive against them. It is a res judicata : 17 S. & R. 278; 6 Term Rep. 471; 7 Id. 155, cases under the Annuity Act of 17 Geo. III., ch. 36. After the judgment of the court on the motion another trial of the same matter could not be granted to the defendant in the same or any other court, under any form or course of proceeding. All the evidence, therefore, offered by the defendant on the trial under the plea of payment, to impeach the validity of the original judgment, was properly ex- cluded, and this disposes of the 2d, 3d, 4th and 5th bills of excep- tion. But, for another reason, this evidence could not be received. To a scire facias upon a judgment, and under the plea of payment, the law is settled that in no case, under any circumstances, can the validity or merits of the original judgment be inquired into for the purpose of furnishing a defence. Where a judgment has been ob- tained surreptitiously, it will be vacated on motion ; and where it is suffered by confession or default, if there be a defence, the court will open the judgment and let the defendant into a trial : Cowper 727 ; 8 Johns. R. 377 ; 1 Binn. 280 ; 4 Id. 61 ; IS. & R. 540 : 5 Id. 65; 11 Id. 155; 15 Id. 135; 1 Rawlc 323; 14 S. & R. 178. The issue in law, upon the plea of mil fid record, embraced in the first bill of exceptions, was tried by the court and found for the plaintiff. Error cannot be conceived in this, and therefore none has been shown. To the decision of the court upon the issue in law, on the plea of a former recovery, the plaintiff in error has not ex- cepted in the court below, nor is it assigned for error in this court. Even on the argument, the counsel for the plaintiff in error did not ask the court to permit him to assign this as a matter in which May 1830.] OF PENNSYLVANIA. 249 [Ulrich v. Voncida.] there was error. But there is no error in the replication to the plea, nor in the trial and judgment. The plaintiff' may and must reply to a plea of a former recovery for the same cause of action first mil tiel record, upon which issue is taken in law to the court, and tried by the court, arid if the finding be for the plaintiff, the plea is entirely disposed of. But if the plaintiff do riot choose to rely upon the non-existence of the record of the judgment, he may in the second place, together with the denial of its existence, deny or traverse the fact of the recovery being for the same cause ; and the issue is then a mingled one of law and fact, and from our de- cisions in Pennsylvania, it appears must be tried by the jury. No formal judgment upon the existence of the record is entered by the court. The jury find for the plaintiff or defendant, and judgment is passed upon the verdict. There is no error in this. The want of a formal judgment by the court upon the plea of nul tiel record, when it appears with the plea of payment, and all is found by the jury, is not error: 8 S. & 11. 228 ; 6 Id. 544-573. The plea of a former suit pending, like all the rest (excepting payment with leave), was offered on the trial of the cause. The rejection of it requires no answer. A plea in abatement, after a plea in bar, cannot be received, and if received, it is a nullity: 4 S. & R. 238 ; 15 Id. 150. The alleged record of a recovery in Berks, for the same debt, is offered in the fifth bill of exceptions as evidence to the jury of fraud in the plaintiff. Under the plea of payment to the scire facias, fraud in obtaining the original judg- ment cannot be given in evidence: 10 S. 00 per annum. On the 12th June 1822, the auditor-general, by a circular letter, called upon the defendant to settle an account of the fees of office received by him as prothonotary of the Common Pleas and District <'<>urt, after he went out of office, to wit, from February 1821 till the 1st July 1822. In pursuance of this call, the defendant, on the 17th July 1822, furnished an account of the fees received by him from his successor in office, and others, amounting to 31965.20. In April 1824, the auditor-general and state treasurer settled the following account: 1 See Cook c. Jones, Cowp. 727-S. REPS. May 1830.] OF PENNSYLVANIA. 253 [Porter v. Commonwealth.] Dr. George B. Porter, Esq., late prothonotary, &c., of Lancaster county. To the Commonwealth, in account for surplus fees of office : To fees received from the time he resigned until the 1st July 1822, per his return on oath . . . 1965 20 Deduct, for error made by him . . . . 75 91 1889 29 1822, November 2d, received of F. A. Muhlenburg, Esq., prothonotary, per receipt filed . . . 3G8 32 2257 61 Deduct 50 per cent, thereof, to which he is entitled, agreeably to Act of 24th March 1818 . . 1128 80 J Tax due Commonwealth 1128 80 J Settled and entered, JAMES DUNCAN, Auditor- General's office, 29th April 1824. Approved and entered, WM. CLARKE, Treasurer's office, 29th April 1824. From the settlement of this account the defendant entered an appeal to the Court of Common Pleas, on the 8th July 1824, and specified the following objections thereto : " That the taxation is illegal and improper. The law directs accounts of this kind to be furnished annually to the auditor-gen- eral ; and the year is to commence and be computed from the first day of October, the account is then to be settled accordingly by the auditor-general ; and whenever the amount of such account exceeds the sum of $1500, the officer shall be charged with fifty per cent, on the amount of such excess, to be paid by him into the treasury, for the use of the Commonwealth. Whereas the above- mentioned settlement is not on an account furnished, nor is the time for which the same is intended as a settlement, .stated ur known to defendant. It appears to be from 5th February 1 S 21 to April 1824. One-half of all the fees stated, is charged against the defendant as due to the Commonwealth, although the only authority given to the accountant officers to tax an account of this kind is where the fees, in one year, exceed the sum of $1500. The defend- j ant claims to be allowed $1500 each year clear of tax, and of the excess he is willing to pay fifty per cent, into the treasury for the use of the Commonwealth. G. B. Po u ILK. "July 8th 1824. '* To David Mann, Esq., Auditor-General of the Commonwealth of Pennsylvania." 254 SUPREME COURT [Lancaster [Porter P. Commonwealth.] The appeal was filed in the Common Pleas, together with the objections. In 1820, a declaration in assumpsit, for money had and received was filed ; to which the defendant then put in the pleas of non- assumpsit, and payment with leave, &c., when the cause was certi- fied into the Circuit Court. On the trial, after the plaintiff had given in evidence the accounts and settlement, as before stated, and rested, the defendant offered in evidence the depositions of John Mathiot and Christian Backman, Esqs., which were objected to by the plaintiff and overruled by the court. The defendant then offered to put in the following plea, which contains the substance of the depositions which had been rejected : "That on the 12th June 1822, he was called upon by James Duncan, Esq., auditor-general, to render an account upon oath or affirmation, of all fees of office which had been received by him since his resignation or removal, up to the first day of July 1822 ; and that he rendered an account in pursuance of this call ; the total fees received and returned in said account as corrected, being $1889.29 ; that by an error in the settlement of the amount of fees due by John Mathiot, late sheriff, to the defendant, he returned in the said account to the auditor-general, $57.8, which were not prothonotary's fees, or due to the defendant, and which have been refunded to the said John Mathiot, Esq. And that of the fees so received, and of which an account was rendered to the auditor- general, after deducting the said error of $57.8, the sum of $150.27, were fees received in the District Court for the city and county of Lancaster ; and that of the sum of $368.32, stated in the claim of plaintiff to have been received by defendant on the 2d November 1822, the sum of $49.52|, were fees received in the District Court for the city and county of Lancaster, and which the defendant is not liable to account for, and never assumed to pay. All which he is ready to verify, &c." The court refused to receive the plea. The defendant requested the court to charge tne jury on tne following points of law: 1. That by the existing laws in relation to settling the accounts of those, who had held the office of prothonotary, the auditor-gen- eral has power to call on such persons, and compel them to account upon oath or affirmation ; but that he must proceed agreeably to the provisions of the Act of 10th March 1810, and must make settlement of the account for each year, ending on the first day of October, and in such settlement can include nothing more than the account for one year; or if he has power to settle the accounts for more than a year at one time, such accounts must be settled separ- ately, and the amount for each year, ending on the 1st October, be kept distinct. That as the auditor-general undertook to call upon the May 1830.] OF PENNSYLVANIA. 255 [Porter v. Commonwealth.] defendant, by letter of the 12th June 1822, for an account of all fees of office, which had been received by him after his resignation, up to the 1st July 1822, and defendant rendered an account accord- ingly ; the accountant-officers had no right to include in the settle- ment of the same, the amount of fees which were received in the subsequent year, viz. : after the 1st October 1822. 2. That the settlement of the account of defendant as made by the auditor-general and state treasurer, on the 29th April 1824, is illegal and improper. No power being given, by law, to the audi- tor-general to call upon the defendant to render an account of fees received, during the year that would end on the 1st October 1822, until after the expiration of this year. That even if he had such power, he had no right to include in the settlement of the account, when rendered, any sum paid to the defendant by his successor in office, after the first day of October 1822 ; nor had he a right to include in such settlement, fees received for services rendered, while defendant acted as prothonotary of the District Court for the city and county of Lancaster, in said court. The court answered these points in the negative; when a verdict was rendered for the plaintiff', which the defendant moved the court to set aside, and grant a new trial for the following reasons: 1. Because the court erred, in rejecting the depositions of Chris- tian Bachman and John Mathiot, offered in evidence on behalf of the defendant. 2. Because the court erred, in not permitting the defendant to plead the matters as contained in his special plea this day filed. 3. Because the court misdirected the jury, in their charge and answers to the points proposed on behalf of the defendant. The court overruled the motion, and entered judgment on the verdict ; from which the defendant appealed. Montgomery, for appellant, cited the act for erecting the con- troller-general's office: 2 Smith L. 19: Act of 18th February 1785, 3 Carey & Bioren 9 allowing to accountants a trial by jury, and the general issue to be pleaded; Act of 17th March 1809, Penn. Laws 71, auditor-general appointed to perform the duties of the controller-general; Act of 30th March 1811. Purd. Dig. 090, directing the mode of settling the accounts of public offi- cers. By the Act of Assembly the fiscal year commences on the 1st of October, and the officer is to account annually : the fees are not due to the Commonwealth until the end of the year. The auditor-general, having, therefore, called upon the officer to account, and an account having been furnished, the accountant-officers had no power upon the settlement of that account, to include the receipt of F. A. Muhlenburg, Esq., for #308.32. dated 2d November 1822, not within that fiscal year ; and they include it too. without any notice to Mr. Porter, or opportunity to contest its correctness. 256 SUPREME COURT [Lancaster [Porter v. Commonwealth.] The defendant is made liable to account, under the Act of 1810, consequently he cannot be charged with fees received out of office ; that could be done only under the Act of 1818. The evidence con- tained in the depositions which were rejected, was strictly admissi- ble under the general issue : 4 Yeates 349; 2 Burr. 1019; 3 Id. 1353; 5 S. & R. 390 ; 6 Id. 76 ; 11 Johns. 531 ; 13 Id. 56 ; 15 Id. 230 ; 4 Yeates 366. Amendments of the pleading on the trial are mandatory, and not discretionary, there was therefore error in refusing the defendant permission to alter his pleas: 14 S. & R. 444; 6 Binn. 88; 4 Yeates 507 ; 8 S. & R. 498 ; 10 Id. 192 ; 11 Id. 101 ; 16 Id. 117 ; 5 Binn. 53 ; 8 S. & R. 286 ; 6 Id. 295. Dow/lass, Attorney-General, submitted the cause for the state, without argument. The opinion of the court was delivered by GIH.-ON, C. J. The Act of the 30th March 1811. requires an appeal from the auditor-general, to be accompanied with a specifica- tion of the appellant's exceptions, and doubtless to indicate the very points to be determined by the court. As there is no reason to appeal in respect of points that are admitted, it would be fla- grantly unjust to permit the accountant to hold in reserve anything that might have been allowed, had it been urged at the settlement, and thus subject the Commonwealth to expense, and her officers to vexation, without just cause. The exceptions contained in the defendant's specification are not stated with precision, but they appear to be: 1. That the settlement was not on an account furnished. This appears not to have been pressed at the trial. '2. That it includes a period of more than one year. 3. That half of all the fees received in the whole period are charged, instead of the excess above 31500, in any one fiscal year. These, therefore, are the only points which the court was compe- tent to hear and determine. At the trial, the defendant offered evidence of various other mat- ters, which was rejected for want of notice, under the rule which requires a specification of special matters, before it can be received, under a general issue pica, on which he prayed for leave to plead the same matters specially, which was refused. It is unnecessary to inquire into the competency of these matters, on either of the grounds on which it was offered, as the fact that it is not included in the exceptions taken before the auditor-general, furnishes an insuperable objection to it on any ground. Perhaps the only exception legitimately urged at the trial, is that the account em- braces a period of considerably more than a year. But whatever May 1830.] OF PENNSYLVANIA. 257 [Porter v. Commonwealth.] the law may be in relation to the accounts of persons actually in office, the Act of the 24th March 1818, requires the auditor-general to settle the accounts of retired or displaced officers " from time to time." Why the case of the defendant, whose appointment to the office, was subsequent to the passing of this act, should not be em- braced by it, we are at a loss to discover. We therefore see no reason to disturb the verdict. Judgment affirmed. Followed, 9 H. 388 ; 16 Smith 67. Frantz against Brown. One about to take an assignment of a bond, is bound to hiquire into every circumstance that might be set up against payment of any part of the debt, and having failed to do so, he stands exactly in the place of the obligee. It is competent, therefore, for an obligor to set up as a defence to the payment of his bond in the hands of an assignee, a parol agreement between him and the obligee, made after the bond was executed, but before it was assigned, that in a certain event, which might and did happen after the assign- ment, the bond was not to be paid. In a case where chancery would enjoin an obligee in a bond or his assignee from proceeding at law, while the obligor remains a loser or in jeopardy as a surety, evidence is admissible to enable the jury to produce the same result by means of a conditional verdict. APPEAL, by the defendant, from the Circuit Court of Lebanon county. An action of debt on bond was brought by Jacob Frantz for the use of John Garbcrich, against Philip Brown. The plaintiff gave in evidence the bond of Philip Brown to Jacob Frantz, for $800, upon which suit was brought, dated the 29th March 1^10, payable on the 1st of May 1823, with the equitable assignment thereon, to John Garbcrich, dated 15th April 1820. The defendant then read a notice of the special matter upon which he intended to rely as a defence, which was in substance this : That on the 10th of October 1818, an article of agreement was entered into between Frantz and Brown, by which Frantz sold a tract of land to Brawn, for 2200/., 700^. whereof was to be paid upon the execution of the contract, and 3(XV. a year thereafter, till the whole should be paid ; that bonds were given by Brown to 1 p. & W. 17 258 SUPREME COURT [Lancaster [Frantz r. Brown.] Frantz, for the said annual payments, upon one of which this suit is brought. That about eight days after the bonds were executed and delivered to Frantz, he bought a tract of land and mills from Adam Brechtbill, for 10,666.07 ; $4266.67 of which he paid in hand, and agreed to give sixteen bonds, with security, for $400 each, payable annually, for the residue. That on the 6th April 1819, Frantz called on Brown to become his security in the sixteen bonds to Brechtbill for $400 cac l^ which Brown at first refused to do ; but upon its being agreed by Frantz that if Brown would sign, as his security, the bonds to Brechtbill, the bonds which he, Brown, had given to Frantz on the 29th March 1819, for the land pur- chased, should be his security ; that if Brown was at any time obliged to pay any of the bonds given by them to Brechtbill, that so much should be deducted out of his bonds to Frantz, and that Brown should not be called upon to pay his bonds to Fraiitv until Frantz had paid his bonds to Brechtbill ; on these conditions Brown signed the bonds as security of Frantz to Brechtbill. That Frantz became unable to pay his bonds to Brechtbill, and that Brown was obliged to pay them, and had paid the first eight bonds in full, and the ninth in part. That Frantz became insolvent on or before the 10th April 1821, and that Brown will be obliged to pay all the bonds to Brechtbill as they become due. The defendant having given in evidence the agreement between Frantz and Brechtbill, as mentioned in the notice of special matter, and the deed in pursuance thereof, dated 6th April 1819, offered in evidence three bonds of the same date, Jacob Frantz and Philip Brown, to Adam Brechtbill, for $400 each, payable on the 1st of May 1825, 1826 and 1827, together with the parol agreement between Frantz and Brown, as set out in the notice of special matter. This was objected to by the plaintiff, who in support of his ob- jection, showed that this suit was brought on the 10th November 1824. The evidence was rejected by the court. The defendant then offered in evidence, the prior bonds, Jacob Frantz and Philip Brown to Adam Brechtbill, four in number; the first payable on the 1st day of May 1820, and last on the 1st day of May 1823. Objected to by the plaintiff, inasmuch as these bonds had been credited in a former suit, Jacob Frantz, for the use of Philip Stine v. Philip Brown ; and offered a credit for the amount found by the jury, in said suit, as overpaid by the defend- ant, to wit : $202.38 ; the defendant then agreed that the former trial shall settle the amount overpaid on the first three bonds. The defendant then offered in evidence the bond of Jacob Frantz and Philip Brown to Adam Brechtbill, payable on the 1st day of May 1824, with proof, that it was paid on the day it fell due, or before ; objected to by the plaintiff, on the ground, that notice of the assign- May 1830.] OF PENNSYLVANIA. 2.59 [Frantz v. Brown.] mcnt of the bond, upon which the present suit is brought, was brought home to Philip Brown, before the bond offered in evidence became due, or was paid ; arid gave in evidence a suit brought by the plaintiff, against the defendant, in Dauphin county, to recover the amount of the present bond, the 26th day of January 1824, process served and bail given, and discontinued on the Oth day of November 1824, the day before this suit was brought. Ob- jections overruled, and evidence admitted ; excepted to by the plaintiff. John Harrison was then called by the defendant. I was one of Jacob Frantz's assignees ; assignee deed, dated the 10th day of April 1821; sold his goods January 1822; I have always under- stood he was poor ; we were not able to pay his debts ; I don't know what his circumstances were in 1824. Jacob Frantz was called by the defendant : I did not pay the bond of 1824, which Brown and I gave to Adam Brechtbill ; I was not able to pay it then, nor am I now. A verdict was rendered for the plaintiff for 3351.58. The plaintiff prayed the court to grant a new trial, for three reasons, the first of which is alone material. Because the court erred in receiving in evidence the bond of Jacob Frantz and Philip Brown to Adam Brechtbill, dated (5th April 1819, for $400, payable 1st May 1824. and in deciding that the same was a legal defalcation against John Garberich, for whose use this suit was brought. The defendant prayed the court to grant a new trial, and assigned four reasons therefor, all of which amounted to but one. Because the court rejected the evidence of the payment of the bonds of Frantz and Brown, to Brechtbill, payable 1st May 182"), 1826, 1827, 1828, and part of the one of 1820, together with parol evidence of the agreement between Frantz and Brown at the time they were executed. The court overruled both the motion of the plaintiff, and of the defendant, and entered judgment upon the verdict, from which decision both parties appealed. In this court the case was argued by Montgomery and Norris, for plaintiff. Wt't'dman and JKUcr. for defendant. For the plaintiff, it was contended, that the court was right in rejecting the evidence of the parol agreement between Frant/, and Brown : a contract cannot rest partly in writing and partly in parol : such evidence was rejected in Davis r. Barr, 5> 8. & It. 141. It is against tho legal effect of the instrument ; and the assignee not having reason to suspect its existence, is not bound to inquire for it from the obligor. An agree- ment not to enter up a bond, was held not to bind even the original 260 SUPREME COURT [Lancaster [Frantz v. Brown.] parties. Undoubtedly the assignor could not have released after the assignment, in consideration of this previous liability ; and what cannot be done directly, cannot be done indirectly : Andrews v. Beeker, 1 Johns. Cas. 411 ; Littlefield v. Story, 3 Johns. 11. 425 ; Wardell v. Eden, 2 Johns. Cas. 121 ; Raymond v. Squire, 11 Johns. II. 47 ; Bates v. New York Insurance Co., 3 Johns. Cas. 238. Want of notice to the assignee is material ; for after that, the inter- est of the assignor is divested, even as regards the obligor, and all relation between the original parties ceases. Nothing but defalca- tion or an equity arising out of the concoction of the debt can be urged against an assignee : Davis v. Barr, 9 S. & R. 141 ; Turlin v. Bonson, 1 P. Wms. 495 ; Cook v. Ambrose, Addis. 323. We are purchasers for a valuable consideration, without notice of this germ of incipient equity. There was error in admitting the evidence of set-off of the amount of the bond of 1824, and in charging the jury that they were bound to allow it : Jenkins v. Brewster, 14 Mass. 291 ; Jones v. Witter, 13 Id. 305. The counsel for defendant were requested by the court to confine their argument to the point on which the defendant appealed. The evidence of the agreement between Frantz and Brown should have been received for the purpose of raising an equitable defence, independent of defalcation : 1 Madd. Ch. 154. An assignee takes subject to every equity : Wheeler v. Hughes, 1 Dall. 23 ; Run- die v. Ettwein, 2 Yeates 23; Mann v. Dungan, 11 S. & II. 75. Every defence must be let in : Solomon v. Kiminel, 5 Binn. 234 ; Bury r. Ilartman, 4 S. & II. 175 ; Gochenaur v. Cooper, 8 Id. 203; Morrison r. More-land, 15 Id. 61 ; Roasset v. The Ins. Co. of North America, 1 Binn. 433. The defalcation act expressly authorizes the giving of a bargain in evidence, to show the amount actually ami equitably due. Here there is certainly an available equity be- tween the original parties, which is sanctioned by all the authorities, as being also available against the assignee. The opinion of the court was delivered by GIBSON, C. J. Evidence of the agreement between Frantz and Brown, at the time of executing their bonds to Brechtbill, was ex- cluded against the bent of the judge's inclination, on the authority of Davis v. Barr, !' S. & R. 137, by which he thought his judg- ment was controlled. It is there stated that as regards trans- actions between the original parties, the assignee is to be affected only by defalcation or want of consideration ; a construction which is found to be too narrow for the spirit of the act on which the question turns. In that case the agreement did not touch the question of liability ; and as the assignee is restrained by the terms of the act, no further than from recovering more than was due at the time of the assignment, it was properly held on principles of May 1830.J OF PENNSYLVANIA. 261 [Frantz v. Brown.] general equity, that being a purchaser fur a valuable consideration, he is protected, by want of notice, from all acts of the original par- ties that do not affect either the existence or the quantum of the debt. But it was supposed that all acts that can affect the exist- ence or the quantum of the debt, are necessarily referable to failure of consideration or set-off, the fallacy of which is shown by the pres- ent case. The defendant offered to prove that he became surety for Frantz and Brechtbill, on the faith and assurance that whatever he might be compelled to pay in consequence should be credited on his own bonds to Frantz. Here there was something more than a con- tingent liability at the time of the assignment ; so that it is obvious the question turns not on set-off, but an equity distinct from it. Set- off itself was originally nothing more than an equitable defence, which the legislature has thought fit, in plain and simple cases, to subject to the jurisdiction of the courts of common law, reserving to chancery its original jurisdiction of cross demands which do not fall within the statute. That such a statute should have been thought necessary here, where the jurisdiction of the courts is com- pounded of law and equity, is attributable to the unsettled state of the practice at the time. As their equitable jurisdiction is now settled, and universally understood, the courts would be competent to do complete justice without the statute, as is shown by their having frequently gone beyond it ; an instance of which is found in Childerston v. Hammon, It S. & 11. t>8, where the defendants were permitted to defalcate a debt due to one of them, although the terms of the act are applicable only to cases where a balance may be found in favor of the party pleading the set-off, and viewing such a plea as a cross-action, it certainly ought not to be maintained so far as to produce a balance by two for a debt due but to one. Set-off, then, being out of the question, was there an equity arising from some- thing in addition to a contingent liability at the time of the assign- ment ? There was an express appropriation of the money to become due on the defendant's bonds to indemnify him from loss as surety for Frantic, which might undoubtedly be set up against Frantz. or an assignee having notice of the fact. But the assignee is bound to take notice of everything, as well a secret trust as want of consider- ation or set-off, which may affect the existence of the debt between the original parties, unless the obligor, after inquiry made, has withheld tin; requisite information. What would have been the answer to the proper inquiry here? Certainly not that the bonds were payable at all events, but that the obligee held them subject to an agreement to indemnify the obligor for whatever he should be compelled to pay for the obligee. In Davis r. Barr, the agreement being collateral to the existence of the debt, and there being nothing in the inquiry, which the assignee was bound to make, to lead the obligor to the subject, the latter might with good faith have admitted the debt, and yet been silent on the subject of the agreement : so 262 SUPREME COURT [Lancaster [Frantz r. Brown.] that an inquiry about the only tiling which the assignee is bound by the terms of the Act of Assembly to suspect, not being necessa- rily productive of information, in regard to the fact with which it was attempted to affect him, it was held that for neglecting to make the usual inquiry, he was not to be visited with notice of circum- stances to which it would not have led. Perhaps there will be rarely, if ever, a case to which the principle of that decision will be applicable. In the case at bar, the assignee was bound to inquire into every circumstance that might be set up against payment of any part of the debt, and having failed to do so, he stands exactly in the place of the obligee. As, therefore, chancery would enjoin Frantz, or his assignee, from proceeding at law, while the defend- ant remains a loser, or in jeopardy as a surety, the evidence is admissible to enable a jury to produce the same result by means of a conditional verdict. Judgment reversed, and a new trial awarded. ROGERS, J., and Ross, J., took no part in the decision, not hav- ing heard the argument. Commented on, 2 W. 70 Followed, 3 P. & W. l'J3 , 3 R. 204 ; 5 W. & S. 528 ; 10 Barr 157 ; 12 C. 1 10. Imniel uyahust Stoever ct al The trustee of an insolvent debtor cannot sustain an action in right of the insolvent without having first <:iven bond. A bond executed with security and filed upon the trial of the cause is not sufficient. APPKAL from the Circuit Court of Lebanon county, held by Justice HILTON. It was an action of assumpsit for money had and received. Issues were joined upon the pleas of non-assumpsit and payment. It appeared, upon the trial of the cause, that Leonard Immel, the surviving trustee of Frederick Stoever, an insolvent debtor, had not given bond for the faithful discharge of the duties of trustee, before he brought this suit against the administrators of Tobias Stoever, deceased. This being made an objection to the plaintiff's recovery, Leonard Immel then executed a bond, with sufficient security, in the penalty of frJOJMM), and offered to file the same. The defend- ant still contended that the plaintiff could not recover, unless he bad given bond before suit brought ; and his honor, who tried the cause, May 1830.] OF PENNSYLVANIA. 263 [Imrael . Stoever.] being of this opinion, the plaintiff suffered a nonsuit, which he afterwards moved the court to take oft', which being refused, he entered an appeal to this court. Weidman and Fisher, for appellant. The application arid dis- charge of Federick Stoever, as an insolvent debtor, were under the Acts of 1730 and 1798, the latter of which was engrafted on the former ; when he was discharged on the Gth March 1rks county. This was an action of debt upon aii insolvent bond, brought by Samuel Ileilner, for the use of Freytag and Kampman, against Jacob Bast, John Wanner and Samuel Fegelly. The bond, dated 1st July 18:25, was in the penalty of S'JOOO, with the following condition annexed : " Whereas, the above bounden Jacob Bast hath been arrested, and is now in arrest, at the suit of the said Samuel Ileilner, for the use of Freytag and Kampman, for the sum of $1003.57, besides costs: and the said Jacob Hast, having made application to the Honorable Jacob Schneider, one of the judges of the Court of Common Picas of the county of Berks, to be released from such confinement, on his 268 SUPREME COURT [Lanwter [Heilncr r. Bast.] entering into bond with sufficient security to comply with the pro- visions of the Act of the General Assembly of the Commonwealth of Pennsylvania, passed the 21>th day of January, A. D. 1820, entitled ' A supplement to the act entitled an act for the relief of insolvent debtors,' and the said Jacob Schneider having approved of the above-named John Wanner and -Samuel Fegelly, security for the said Jacob Bast. "Now the condition of the above obligation is such, that if the said Jacob Bast shall appear before the honorable the judges of the Court of Common Pleas for the county of Berks, at the next term of said court, to be holden on the first Monday of August, A. D. lS2o, and then and there remain, and abide the final order of the said court, to be made during the said term, and then and there surrender himself to prison ; in case (on his appearance before the said court) he shall not comply with all things required by law, to procure his discharge from confinement, then the above obligation to be void, otherwise to remain in full force and virtue." After the plaintiff had given in evidence this bond and rested, the defendants gave in evidence the capias ad satisfaciendum, at the suit of the said Samuel Heilner. for the use of Freytag and Kauipman v. Jacob Bast, upon which the defendant had been taken, and had given this bond, and the sheriff's return thereon " dis- charged on giving bond." They then showed the petition of Jacob Bast, regularly presented at the next term, according to the condition of his bond, the order of the court thereupon, appointing a day for hearing the petitioner and his creditors ; the notice to creditors published according to the order of the court, and exhibited the record of the court, showing that the said Jacob Bast, together with ten others, who were to appear at the same time, had regularly appeared on the day and at the time fixed, when the court, for reasons which did not appear upon the record, made the following order : "The proceedings quashed by order of the court." The defendants further gave evidence that afterwards, to wit, to January term 1H2J. an 8. fc R. 48), has the following condition underwritten, that Jacob Bast will appear, c., before the Court of Common Pleas of Berks county, at the next term, c., and then and there surrender him- self to prison, in case, on his appearance, he shall not comply with all things required by law to procure his discharge. Bast filed his petition in due form, and in the other preparatory steps complied with the directions of the act, and the court appointed a time for hearing him and his creditors, but for a reason, which is not stated, and if it were, would be immaterial, they refused to discharge him, and made the following entry : "Proceedings quashed by order of the court." From this entry, which is the only one on the record, it appears that Bast failed to -comply with all tilings required by law to procure his discharge. Being the decree of a court of com- petent jurisdiction, it is immaterial what may have induced the de- cision, for if, as was ruled, in Sheets v. Hawk et al., 14 S. & R. 173, the record of the discharge of an insolvent debtor is conclu- sive, as to the fact of having complied with all things required by law to entitle him to his discharge, then the refusal to discharge him must be equally conclusive, and not the subject of inquiry in a collateral suit. The record conclusively shows that Bast was not discharged, and is evidence which cannot be controverted, that a substantial condition of the bond has not been complied with. The entry, "proceedings quashed by order of the court," was tanta- mount to a decree that he had failed to comply with some of the essential requisitions of the statute, and whether the opinion of the court was right or wrong, is not open to inquiry. On the refusal of the court to discharge the petitioner, it was his duty to surrender himself to prison in discharge of his bail, and this without any order of the court for that purpose. It is the express condition of the bond, that he will surrender himself, in case he shall not com- ply with all things required by law to procure his discharge. Indeed, it may admit of doubt, whether the court would have power to recommit the prisoner, except he had been guilty of fraud. After the rejection of his application for the benefit of the act, he had one of two courses to pursue, either to surrender himself to prison, or forfeit his bond. This was a matter for himself to determine, but a May 1830.] OF PENNSYLVANIA. 271 [Hcilncrp. Bast.] case may be readily supposed where the petitioner would rather sub- mit to the latter alternative. It has been contended that by the entry, "Proceedings quashed, by order of the court," the bond was vacated. We cannot suppose this to have been the intention of the court, as they would clearly have no such power ; and if they had expressly vacated the bond, such an order would have been a mere nullity, and treated as such in a suit to recover on it. The bond is directed by the act to be given to the plaintiff, at whose suit he is arrested, and for his bene- fit, so that I cannot believe that the court would have greater power than in the case of an ordinary bond, or any other instrument of writing whatever. The common law does not recognise such sum- mary proceedings, which would deprive the plaintiff of his remedy of trial by jury, and the opportunity of review in the Supreme Court. But it has been contended, that the alias ca. sa. and the subsequent discharge waives any right of action which he might otherwise have on the bond. This argument is rather specious than solid, for the alias is not in prejudice, but for the benefit of the bail. It is obviously to their advantage to pursue the principal, and compel him to assign his property for the benefit of his creditors. Judgment reversed, and a venire de novo awarded. Followed, 2 Barr 61. Betz's Appeal. The issuing of a fieri facias within a year and a day, and a levy upon personal property, subject to former levies, or on personal property as per inventory annexed, or a return of nitlln bona, does not keep alive the lien of a judgment beyond five years, from the return-day of the term to which it is entered. Upon a transcript of the judgment of a justice the peace, entered as a lien upon land, the five years within which a scire faeias shall issue, to preserve the lien, must be computed from the first day of the term to which it is entered, and not from the actual date of the entry. THIS case came up by appeal from the decree of the Court of Common Pleas of Berks county, distributing the proceeds of the sale by the sheriff, of the real estate of Samuel Krauser, Adam Krauser and Daniel Krauser. The real estate was sold on the 2d November 18'2!\ and the sum of $2f)07.37, being brought into court for distribution, the matter was referred, by consent, to three commissioners, who made a report to the court, allowing the following judgments, the circumstances of which gave rise to the points which are settled by this court 272 SUPREME COURT [Lancaster [Betz's Appeal.] Jacob K. Boyer, for the use of "1 Of August term 1821, No. Henry Betz, I 47. Judgment entered, 18tb v. [ September 18:21. Real debt, John Krauser and Samuel Krauser. J $280.31. Fi. fa. to August term 1822, returned " Levied on personal pro- perty subject to prior executions," vend, expos, to January 1823, returned "unsold." Fi. fa. post. vend, expos, to April term 1827, returned " tarde venit." April 14th 1827, rule to show cause why the execution should not be set aside, and defendants let into a defence, May 18th 1827, rule made absolute, judgment to remain as security. Scire facias to August term 1827, and 1st June 1829, judgment by report of arbitrators, for $429.14. Same plaintiffs ^ Of April term 1822, No. 89. Judgment v. > entered, 8th February 1822. Real debt, Same defendants, j $153.33. Alike proceedings were had upon this judgment as the first ; the same returns were made thereto ; the same rule entered ; scire facias issued the same time, and on the 1st June 1829, judgment by report of arbitrators, for $236.11. To the allowance of these two judgments by the commissioners, the following exceptions were filed in the Common Pleas, by Jacob Hawk, a subsequent judg- ment-creditor : 1st. That the executions issued upon the said judgments were levied upon personal property, sufficient to satisfy the same. 2d. Because said judgments were not revived agreeably to the Act of Assemby, or the lien continued beyond five years, from the first return-day of August term 1821, under the then existing laws. The Court of Common Pleas overruled the first exception, and sustained the second, from which Henry Betz appealed. Mills and Reose } Of January term 1823, No. 10. Tran- v. > script of a judgment from the docket John and Samuel Krauser. J of a justice, for $66.48. Entered, llth January 1823. Scire facias issued 7th January 1828, to April term 1828, upon which judgment was entered. There was another transcript of a judgment at the suit of the same plaintiffs, against the same defendants, entered at the same time, and depending upon the same circumstances. To the allow- ance of these two judgments, Jacob Hawk also filed an exception. That the said judgments were not liens on the real estate sold, they not having been revived within five years from the first return- day of January term 1823, agreeably to the Act of Assembly. The Gth January was the return-day of January term 1823. May 1830.] OF PENNSYLVANIA. 273 [Bctz's Appeal.] This exception was sustained by the Court of Common Pleas, and Lewis Rees appealed. Joseph Hiester, Esq., ] Of November term 1823, No. v. > 112. Judgment entered Adam, Samuel and John Krauser. ) 10th Nov. 1823, for $400. Fi. fa. to January term 1824, returned " levied on personal pro- perty, as per inventory annexed." Vend, expos, to April term 1824, returned*" stayed by plaintiff." Als. vend, expos, to August term 1824, returned "property sold to the amount of $69.39," and this amount has been deducted from the interest and costs in the above case. Scire facias issued to January term 1829. Exception was also filed by Jacob Hawk to the allowance of this judgment. That the same had not been revived by scire facias within five years from the return-day of the term to which it was entered. This exception was also sustained by the Court of Common Pleas, and Joseph lliester, Esq., appealed. Michael Raefsnyder, Isaac M. ^ Young and Jacob Fritz, j Of January term 1824, No. 10. v. > Judgment entered January 12th Samuel, John and Adam 1824, for 367.73. Krauser. J Fi. fa. to November term 1824, returned "nulla bona." Jacob Hawk j Of January term 1824, No. 11. v. > Judgment entered 12th Jan- Samuel, John and Adam Krauser. ) uary 1824, for $1560. Fi. fa. to January term 1824, levied on real estate, inquisition held, and the same condemned. Scire facias to January term 1829, and judgment thereon. The commissioners reported that a balance of $591.85, which remained after the payment of prior liens, should be divided ratea- bly between these two judgments. To which Jacob Hawk excepted, that his judgment should be paid before any money should be appropriated to the judgment of llaefsnyder, Young and Fritz, which had lost its lien. This exception was sustained by the Court of Common Pleas, and Raefsnyder, Young and Fritz appealed. In this court the appellants assigned as error, the opinion of the court in the several foregoing decrees. Baird, for appellants. There are two questions which arise out of this case. First, whether the issuing of a fi. fa. within a year after the entry of the judgment will keep alive its lien beyond the period of five years. And second, whether upon a transcript of a judgment from the docket of a justice, the five years shall be computed from the first 1 p. & W. 18 274 SUPREME COURT [Lancaster [Betz's Appeal.] day of the term to which the judgment was entered, or from the actual dato of its entry upon the docket. The affirmance of the opinion of the court below, on the first point, will establish a doctrine differing from the received opinion of the bar, and uniform practice of all the courts in Pennsylvania, and which grew out of the judicial decisions of our own courts. The question first came before the court in the case of Young v. Taylor, 2 Binn. 218, where it was ably argued, and received the deliberate consideration of the court, and where it was held that the issuing of a fi. fa. would keep alive the lien of a judgment. The next case is that of Lewis v. Smith, 2 S. R. 142, where the same doctrine is held, and predicated upon the construction which prac- tice had given to the statute of Westminster II., and our own statute of the 4th April 171KS. In the case of Pennock v. Hart, 8 S. & R. 30'J, Young r. Taylor is approved ; and in Commonwealth v. McKisson, 13 S. & R. 144, the whole scope of the argument of Duncan, Justice, recognises the cases of Young v. Taylor and Pen- nock r. Hart, as being sound law. The qucere which is put in the case of Pennock v. McKisson, is the qucere of the reporters, and not authorized by the case itself; in the argument of that case by Mr. Hepburn, who is a member of the bar of great experience and learning, and whose opinion in matters of practice will have weight, this position which we contend for is admitted. The case now at bar is a strong illustration of what we considered the settled law to be. In the Act of the 26th March 1827, Paraph. L. 129, we have the understanding of the legislature of what the practice was, for therein they provide that a scire facias shall issue, notwith- standing an execution had issued. If, then, on this subject, the understanding and practice have been uniform and extensive, the evils of a different construction would be innumerable; this result the court will not produce, unless the evils of the present system are correspondingly great. When the Act of 1798 was passed, the legislature had in view the practice of entering judgments upon warrants of attorney, and did not contemplate the case of transcripts, which, at the passage of that law. there was no authority to enter on the county docket. Hut the 20th section of the Act of 20th March 1810, Purd. Dig. 454, which authorizes the entry of a transcript, provides that from the time of such entry, it shall bind the real estate of the defendant. JL W. Smith, for the appellee. Prior to the Act of 4th April 170H, judgments were a lien on real estate for an indefinite period; by that act it ceases to be a lien, unless revived by a scire facias, within five years from the return-day of the term to which it is entered. This act is as clear and comprehensive as it is positive in ita terms; it was evidently intended for the benefit of purchasers, and May 1830.] OF PENNSYLVANIA. 275 [Beta's Appeal.] subsequent lien-creditors. The scire facias, post annum ct diem, is given by the Statute of West. II., and is intended for the benefit of the defendant in the judgment, that he may have an opportunity of showing that the debts have been paid since the rendition of the judgment, so that there is no analogy between the two acts ; the decisions that have taken place under the one cannot be applied to the other. The point now before the court did not arise in the case of Young v. Taylor ; there there was no levy on personal property, the levy was on the two lots against which the lien was sought to be enforced, but further proceedings were directed to bring the matter before the court. So far as this point was noticed, it was only by a dictum of Judge Ycates, which was not called for, and which, as is Said by Senator Platt in 9 Johns. 11. 415, and Huston, J., in 17 S. & K. 292, and Gibson, C. J., in 7 S. & R. 76, is always uncertain author- ity for what the law is. There is a dictum of Judge Duncan in 9 S. & R. 311, that the mortgagee has the right to the actual posses- sion of the land, one year after the last \\iiy of payment, but when the point carne directly before the court in 12 S. & R. 340, it was decided that the mortgagee was entitled to recover before all the payments were due. But since the case of Young v. Taylor this court decided that so far as respects third persons, a levy on per- sonal property discharges the lien of the judgment to the value of the property levied: Hunt v. Breading, 12 S. & R. 37; Dean ;-. Patton, 13 Id. 341 ; Duncan v. Harris, 17 Id. 43(5 ; United States v. Stewart, MS. case, Pittsburgh, September 1828. In Lewis r. Smith, the levy was on personal property, there was no question of lien as to land. If an execution be issued within a year and a day, an alias may issue at any time afterwards, without a scire facias, to obtain satisfaction of the debt, but not to continue the lien of the judgment ; the existence of the debt and its lien are not in- separable; the lien may be waived and the debt still continue: The Bank of Pennsylvania r. Winger, 1 Rawle 295. The case of Pennock v. Hart has been much shaken in its author- ity, even by the present chief justice, who delivered that opinion of the court, for he has said that liv is less confident of the soundness of that decision than when it was pronounced ; and in the Common- wealth r. Conard, 1 Rawle 253, Justice Smith says, "indeed very few lawyers foresaw or expected the decision of Pennock r. Hart." It is restricted in its application in Black ?-. Dobson, 11 S. \ R. 94, and in Bombay r. Boyer, 14 Id. 253. In tho Commonwealth r. McKisson the lien is confined to the particular lands levied on : and there the court seemed reluctant to go even that far. Chahoon r. Ilollenback. 1> S. & K. 425, is the last case on the subject, and where Huston, J., reviews all the prior cases, and decides against the lien now asked for. 27G SUPREME COURT [Lancaster [Betz's Appeal.] The object of an execution is satisfaction of the debt, not security for it ; and whenever an execution creates a lien, it is on the pro- perty specifically levied, which is necessary to render the process effectual, until satisfaction is obtained. A levy on a particular tra-ct of land is notice that the creditor has resorted to it for payment, and a lien is the consequence until it is obtained; but a levy on per- sonal property, or a return of nulla bona, can give no such notice ; the former may induce third persons to believe that the judgment- creditor has resorted to the personal property and received satisfac- tion ; and the latter is but notice that no satisfaction was obtained, which sufficiently appears by the unsatisfied judgment on the docket. Mills and Rees's judgments, although transcripts from the docket of a justice, are entered for the purpose of lien on the real estate, and are necessarily liable to all the legal consequences incident to the lien of a judgment under the Act of 4th April 1798. The opinion of the court was delivered by SMITH, J. (His Honor stated fully the facts of the case.) The questions which are to be decided here are, 1. Whether the lien of a judgment is continued beyond five years, from the first return-day of the term of which it is entered, without a scire facias to revive the same, by a fieri facias issued within a year and a day, and returned, levied on personal property, subject to prior ex- ecutions, or levied on personal property, as per inventory annexed, or returned " nulla bona ;" and 2. Whether the transcript of a judgment of a justice of the peace, filed in the Court of Common Pleas, continues the lien five years from the day on which it was actually entered, or five years from the first return-day of the term of which it is entered, according to the provisions of the Act of the 4th of April 1798. With regard to this last question, we find it impossible to draw a distinction between a judgment entered by confession or on verdict, and a judgment entered from a tran- script of a justice. It was long ago decided that judgments ob- tained before justices of the peace, when filed in the prothonotary's office, are on the same footing with judgments in court: Scott v. Ramsey, 1 Binn. 221 . The words of the Act of 1798, sect. 2, are that "no judgment hereafter entered in any court of record within this Commonwealth, shall continue a lien on the real estate of the person against whom such judgment may be entered, during a longer term than five years from the first return-day of the term of which such judgment may be so entered, unless the person who may obtain such judgment, or hi.s legal representatives, or other persons interested, shall within the said term of five years, sue out a writ of scire facias, to revive the same. We have no doubt that the case of a transcript, is embraced both by the language and spirit of this provision, and we are unanimously of opinion, that the May 1830.] OF PENNSYLVANIA. 277 [Betz's Appeal.] court below was correct in sustaining .the exception to the allow- ance of Reese and Mills' judgments, as existing liens, five years from the first return-day of the January term 1823, having expired, when the scire facias was issued upon them respectively, though only by a single day. The other question does not admit of so eaSy a solution, nor are the members of this court unanimous respecting it. I may, however, state that four of us concur in the opinion, that where the fieri facias is returned " nulla bona," the lien is not thereby continued on the land; and that a majority of the court consider that the lien is riot continued by a fieri facias, returned levied on personal property, as per inventory annexed. The Act of 1798, limiting the time during which a judgment shall be a lien on real estate, &c., is imperative in its injunction, that no judgments shall continue a lien, unless a writ of scire facias be sued out within the time therein prescribed, to revive the same. It is true, that this excepting clause, has been extended by con- struction to the case of a fieri facias levied on lands, and also to the case of a casset executw, making the five years during which the scire facias may be issued to commence at the expiration of the stay. There is no disposition in this court, to carry the construc- tion beyond the decisions in the cases of Young v. Taylor, 2 Binn. 218; Com. v. McKisson, 13 S. & R. 144; and Pennock v. Hart, 8 Id. 319. In the last-mentioned case, the stay of execution was entered upon the record ; and this entry has been decided, in sub- sequent cases to be essential to the extension of the period within which the plaintiff may issue a scire facias, to revive his lien. Every effort to induce us to carry the construction beyond that point has proved unavailing, and we have held, that no agreement between the parties for a stay will be valid, as to third persons, unless it be placed upon the record at the time of entering the judgment: Black v. Dobson, 11 S. & R. 94; Bombay v. Boyer, 14 Id. 253. In Young v. Taylor, the fieri facias was levied on goods and land ; the very land in controversy, on which was held an inquisi- tion that condemned it. The fieri facias thus levied, with the in- quisition and condemnation, was considered, in point of notice of the creditor's pretensions, to be equivalent to the scire facias, mentioned in the Act of the 4th of April, 1798, and to supersede that writ. Even the letter of this case affords no support to the errors assigned by the appellants, whose writs of fieri facias were levied on per- sonal property alone; and if we regard its spirit and reason, which constitute the real authority of every precedent, we shall be satisfied that it cannot contribute in the least to sustain these appeals. The Act of Assembly in question was passed for the safety of purcha- sers of real estate. The scire facias within five years was intended as notice that the judgment-creditor still looked to the laud as 278 SUPREME COURT [Lancaster [Betz's Appeal.] security for his debt. His omission to sue it out affected him in no other way than by relieving the land from the lien of his judg- ment. The purchaser, where a scire facias has been duly sued out, is fully notified of the encumbrance, and of the creditor's intention to regard the land as the fund out of which he expects to be paid. Buying with notice he cannot complain. "But," said Judge Yeates, in '2 Binn. 229, "it will not be denied, that the plaintiff taking out a fieri facias, levying on goods and lands of the defend- ant, and condemning the lands by an inquest, are matters of noto- riety, and in point of notice of the creditor's pretensions, tanta- mount to a scire facias. Such I take it, has been the construction of this section of the act." It was the notoriety of these proceed- ings upon the judgment affecting the lands, that was thought to supply the purpose of the scire facias, in giving notice of the plain- tiff's intention not to relinquish his lien upon them. But how can we infer such an intention from a fieri facias, levied upon personal property only? In Hunt v. Breading, 12 S. & R. 37, it was decided that a judgment-creditor, who has seized the goods of his debtor in execution, cannot discharge them, and leave his judgment in force as to the land. See, also, Dean v. Patton, 13 S. & R. 341, and Duncan v. Harris, 17 Id. 43G. A levy on personal property, cannot be considered as notice to a purchaser that the creditor means to rely on his lien upon the debtor's lands. It is an indica- tion of a different intention. The fieri facia-s itself is no lien upon the land, until it is seized in execution by virtue of the writ. It is a lien upon the defendant's goods from the time of its delivery to the sheriff, and where goods of a sufficient value are actually seized in execution, the debt is extinguished, and the judgment satisfied. In the fact of levying on personal property, what is there, of actual notoriety, calculated to supply the notice by scire facias of the creditor's purpose to renew or revive his lien upon the defendant's land? Certainly nothing. If, then, we go to the record, we find an entry of a fieri facias issued, and returned, "levied on personal property." Is there anything in this that really inti- mates the creditor's design to maintain his lien upon the land ? On the contrary, the entry shows that the creditor has resorted to the defendant's goods, for the satisfaction of his debt ; and the legal consequence is that he is not at liberty to give them up and proceed against the land. In the case of Commonwealth r. McKis- son, 13 S. & R. 144, the decision was "barely on the effect of a levy on particular lands, preserving the lien on the land levied," without a scire facias to revive ; and it was decided on the authority of Young v. Taylor that it was sufficient for that purpose, though Judge Duncan, who delivered the opinion of the court, declared that if the matter were res intcyra, he would have given a different decision. May 1830.1 OF PENNSYLVANIA. 279 [Beta's Appeal.] Upon the present question I consider this court as untrammelled by former decisions. We have the plain and unequivocal enactnient of the legislature for our guide, without any reason to suppose that if they had foreseen the case now under consideration, they would have employed one word more or less in order to bring it within the exception to their limitation. There is no instance in which a fieri facias levied merely upon personal property has been held tc be within that exception ; nor can the decisions or practice under the Statute of Westminster II., in my opinion, warrant such a con- struction in relation to a fieri facias thus executed. The object and character of that statute, and of our Act of the 4th of April 1708, are indeed so different that I am at a loss to discover the pro- priety of reasoning from one to the other. In fine, we think that no scire facias was sued out, according to the second section of the Act of 4th April 1798, to revive the judg- ments of Jacob K. Boyer, for the use of Henry Betz, arid the judgments of Joseph Iliester, Esq., within five years from the first return-day of the term of which they were respectively entered, they did not continue a lien on the i;eal estate of the defendants therein named beyond that period, notwithstanding the fieri facias issued upon them, and levied on the personal property of these de- fendants. The appellee, Jacob Hawk, had issued a writ of scire facias to continue his lien, so that, in fact, the case was between those who had complied with the law, and those who had disre- garded it. The opinion of the court was delivered by GIBSON, C. J. No man is more ready than I to admit the fal- lacy of the construction in Young r. Taylor, but as it has laid the foundation of a practice extensively adopted, I think that the germ of much evil is discernible in the present departure from it. The im- portance of that case is not derived from the point directly decided, but from the breadth of a principle asserted in it that " no change was intended in the mode of keeping judgments alive by issuing an execution within the year and day, superseding the necessity of issuing a scire facias under the Statute of Westminster II." Since that statute the judgment was kept alive by the issuing and continu- ance of an execution, without regard to the circumstances of a levy which was considered to be immaterial ; and I feel confident that on the authority of this dictum the same practice luus prevailed in many parts of the state as uninterruptedly since the Act of Assembly as it did before. To follow it to the point at which it has been arrested by the legislature would produce no material inconvenience: for although little accordant with the letter or spirit of the act, I am not aware that it has ever produced injustice : what the conse- quences of overturning it may be retrospectively, no man can fore- 280 SUPREME COURT [Lancaster [Betz's Appeal.] see. Purchasers have reposed on it for twenty years ; and to de- prive them of a title founded in a practice repeatedly recognised by judicial decision ought to require the presence of an overruling mischief, which, it seems to me, does not exist. I am, therefore, averse to any change, particularly in what seems to me to have become a rule of property ; and I am happy to say my brother Rogers is of the same opinion. The judgment and decrees of the Court of Common Pleas are affirmed. ROGERS, J., concurred with the chief justice. Referred to, 3 P. & W. 202. Commented on, 11 II. 219. Followed, 3 P. & W. 445. See 26 March 1827, $1,9 Sin. Laws. 303, continuing the lien of a judgment for five years from the day of entry, or revival thereof. Betz against Heebner. An assignee of bonds, which are secured by a mortgage, is entitled to all the security which the mortgage affords, although he did not know of its exist- ence when he took an assignment of the bonds. An assignment of the mortgage deed, to one who holds part of the bonds, gives him no preference over the other bondholders, in the distribution of the proceeds of sale of the mortgaged premises. ERROR to the Common Pleas of 8chuylkill county. This case came before the Court of Common Pleas on a rule to appropriate the proceeds of the sale by the sheriff of the real estate of George Heebner. The following facts were agreed to as a special verdict : George Heebner, the defendant, on the 12th. April 1814, executed a mortgage on one hundred and fifty acres of land to secure the pay- ment of nine bonds, given at the same time, to William Green, arid which fell due on the 1st of April in each year thereafter. The first two bonds wore paid when they fell due. On the 6th of September 1816, the next three bonds were assigned by Green to Daniel Groeff, and the payment thereof was guaranteed by the said Green. These bonds were afterwards, on the 'Jth September 1816, assigned to George Heinler, by Groeff, who also guaranteed the payment thereof; one of these three was afterwards assigned by Ileisler to John Stroh, who brought a suit thereon, obtained judgment, issued a fieri facias, which was levied on personal property, and issued a May 1830.] OF PENNSYLVANIA. 281 Betz v. Heebner.J vend, expos, upon which the sheriff returned "sold and proceeds applied to prior executions." The other two of the last three men- tioned bonds, were assigned by Ileisler to the Farmers' Bank of Reading, who brought suit thereon, obtained judgment, issued fieri facias, and levied on the mortgaged premises. On the 27th July 1818, the mortgage deed was first put on record. On the 3d Sep- tember 1818, the mortgage deed, together with the last four bonds, were assigned by Green to Henry Betz, the plaintiff, who issued a scire facias upon the mortgage, obtained judgment, issued levari facias, upon which the mortgaged premises were sold for $800, and the money paid into court for appropriation. The question for the opinion of the court was whether Henry Betz, the assignee of the mortgage, was entitled to the whole amount of the proceeds of the sale, in discharge of his four bonds ; or whether each holder of a bond was entitled to a pro rata dividend thereof. The opinion of the court below was, that the mortgage was a security for all the bonds, and that the proceeds of sale should be distributed pro rata among the holders. This opinion was here assigned as error. Bannan and Biddle, for plaintiff in error. This case differs from the case of Donnelly v. Hays, 17 S. & 11. 400, in this, that at the time Betz took the assignment of the mortgage and bonds, he had no notice that the first bonds were unpaid, and in the hands of assignees. The assignees of the first bonds knew nothing of the mortgage when they took their assignments, for it was not on record at the time ; Betz has therefore greater equity, and a supe- rior legal right, in having an assignment of the mortgage itself: Wells v. Archer, 10 S. & II. 412. When Green assigned the first bonds, there was no lien on the land, and he had a right to make what bargain he pleased with the assignees, and having reserved to himself the mortgage, for the security of the last bonds alone, this agreement will have the effect which the parties designed it should have. Smith, for defendant in error, whom the court declined to hear. Judgment affirmed. Referred to, 9 B;vrr 35 ; 10 Id. 479 : 7 Smith SOL*. Affirmed and eases reviewed, Perry's Appeal, 10 II. 43. Followed, 1 1 Wr. '220. 282 SUPREME COURT [Lancaster Bowman against Heir's Ex'rs. Previously to the settlement of an account in the Orphans' Court an action of assiimpsit will not lie by the ward agairv t his guardian to compel such settlement and payment of the balance. The Orphans' Court has full power and authority to settle the account of a guardian, and if a balance is found to be in his hands when the ward arrives at full age. to compel the payment of it, by attachment or sequestration of the goods or lands of the accountant. A settlement made by the guardian once in every three years, in pursuance of the iid section of the Act of the 31st of March 18121, is not conclusive upon the ward, but may be impeached upon the final settlement of the account when tin- ward arrives at full age. I'pon the death of a guardian before the settlement of his account, his representatives may be cited and compelled to settle it; and the Orphans' Court injiv exercise the same power to compel them to pay over the balance as they would against the guardian himself. APPEAL by the plaintiff from the decision of Huston, J., at a Circuit Court held in Lebanon county. Henry 11 err, the defendant's testator, had been the guardian of Michael Bowman, the plaintiff, and died without having settled a guardianship-account of the estate of his ward which had come to his hands. The plaintiff, Michael Bowman, after he arrived at full age, brought this suit against the representatives of Henry Ilerr, his late guardian, and claimed to recover upon a declaration for money had and received for his use. Upon a trial of the cause, the plaintiff offered evidence of the receipt of money by the defendant's testator, as the guardian of the plaintiff, to which the defendant objected, on the ground that the plaintiff could not support his action, without showing that pre- viously to the institution of it, the guardian or his representatives had settled a guardianship-account in the Orphans' Court. This objection having been sustained by the court, the plaintiff took a nonsuit, which he afterwards moved the court to take off, and which being refused, he entered this appeal. In this court the cause was argued by Elder and Hopkins^ for plaintiff's appellant. Kline and Wcidman, for appellees. The opinion of the court was delivered by HoiiKKS, J. At the common law, a guardian is liable to an action of account-render, but there is no instance of an action for money had and received having been sustained against him, before settle- merit of his account. The remedy by account-render, is but seldom resorted to, but the practice is for the ward to file a bill in chancery, calling the guardian to account. The Equity courts take jurisdic- tion on the ground of their general superintendence of all infants, and because the guardian is a trustee ; and it is the peculiar duty May 1830.] OF PENNSYLVANIA. 283 [Bowman v. Ilerrs Ex'rs.] of chancery to insure the faithful discharge of a trust. This course has many advantages, as the guardian may be examined on oath, and is compellable to produce books and papers, and other written documents, that may lead to a thorough investigation of the case, arid a just decision of the controversy : Co. Lit. 80 ; 1 131. Com. 463 ; 13ac. Ab., tit. Guardian and Ward. The same results may be obtained in the action of account-render, although in a mode more troublesome and expensive. But this cannot be done in assurnpsit, which may be the reason that no such action has ever been attempted. As early as the 27th March 17i3, all authority in relation to guardian arid ward, was committed to the Orphans' Court, with an appeal, as the law now stands, to the Circuit Court, and afterwards to the Supreme Court. They were vested with the power of appointing guardians, and it is made the especial duty of the court to see that the trust is faithfully discharged, and for this purpose they are clothed with authority at any time to exact secu- rity from the guardian, may discharge him on his own applica- tion, or may dismiss him for malfeasance, or any other just cause, and compel him by attachment or sequestration to pay over the balance in his hands, and surrender all muniments of title in his possession. In the llth section of the act, it is directed that when the minor has been fully paid, satisfaction shall be entered in the Orphans' Court. When bonds have been taken in pursuance of the Act of the 30th March 1821, the condition of the bond is to render a just and true account in the Orphans' Court, and to deliver up the pro- perty of the minor, agreeably to the decree or order of the court. The third section of the act requires the guardian to settle once in every three years, in the same court, and at such other times as may be required by the court. These various acts evidently show that the legislature intended to devise a system complete in itself, by the erection of a tribunal with all the power necessary to afford adequate relief. AVhich view of the case, taken in connection with the act, which prescribes that when a remedy is provided, a duty enjoined, or anything is directed to be done by an Act of Assembly, the directions of the act shall be strictly pursued, induced the opinion that the Orphans' Court alone had the power to compel the settlement of a guardian's account. In Denison r. Cornwell, 17 S. & R. 378, it was decided that the Orphans' Court was the proper tribunal to settle accounts between guardian and ward. For this purpose, they are clothed with the authority of a court of equity. They may examine the guardian on oath, to charge or discharge him, may compel the production of hooks or other docu- ments, and, in general, may exercise every authority neeessurv to enforce a faithful performance of the trust. The accounts of guardians consist of a variety of items, some very trifling in amount, and if the investigation must be conducted on the principles of the 284 SUPREME COURT [Lancaster [Bowman r. Heir's EXTS.] common law, injustice of the most glaring kind may frequently be the result, for unless the guardian be prepared in case of a disputed account with the proof of every voucher, his charge before a com- mon-law court will be disallowed. And to make this the duty of a guardian, in the course of a trial, which is frequently terminated in a single day, would be such an intolerable hardship as to prevent persons from accepting a trust which cannot be attended with profit, but must necessarily result in trouble, and eventual loss. The Orphans' Court may, on the contrary, in the exercise of a reason- able discretion, allow time to procure proof of expenditures, or may supply the want of a regular voucher (which ought to be done with great caution), by the oath of the guardian himself. And this should be permitted when, from the nature of things, no regular vouchers can be attained, as for travelling expenses, going to, and returning from school, and others of a similar character. The office of guardian is one of peculiar trust and confidence ; it is, therefore, of importance that we should adopt no rule which may prevent men of the first integrity and character from accepting the trust. It is said that Denison v. Cornwell is contrary to the practice. Of this practice, so confidently relied on, no one member of the court is aware, and if so general as to furnish a rule for decision, it is singular that not a trace of it should exist in the books. The case of Denison v. Cornwell has alone been produced, and which establishes a rule directly the reverse. Whether in any case a minor would be concluded by an account settled in his minority, it is not necessary to decide. It is, however, plain he would not be prevented from impeaching an account settled in the Orphans' Court, in pursuance of the third section of the Act of 18:21. In directing a settlement once in every three years, the legislature intended it as a measure of precaution, an additional security to the infant. By the settlement, the court and the friends of the infant have an opportunity of knowing the situation of the estate : if there is any reason to apprehend injury to the rights of the minor, mea- sures may be taken to guard his interests, either by dismissing the guardian or compelling him to give additional security for the per- formance of his duty. Such a settlement would not conclude the infant, and it may be doubtful whether it would be even prima facie evidence in favor of the guardian. The Orphans' Court would have the power to compel a re-settlement of the account, after the infant attained his age. Such a- settlement alone would be conclu- sive upon both guardian and ward. Doubts have been expressed whether the Orphans' Courts have power to enforce their decrees. It has been said that resort must be had for that purpo.se to the common-law courts. After settle- ment, an action of assumpsit will lie to enforce payment of the balance ; but it is by no means conceded that it is the only, although May 1830.] OF PENNSYLVANIA. 285 [Bowman v. ilerr's Ez'rs.] it is the usual remedy. By the 8th section of the Act of the 27th March 1713, the justices may send their attachment for contempt, and may force obedience to their warrants, sentences and orders concerning any matter or thing cognisable in the same courts, by imprisonment of the body, a sequestration of lands or goods, as fully as any court of equity may or can do. As early then, as the first organization of the court, full and plenary authority has been given them, by attachment or sequestration, to enforce compliance with their order or decrees. By the death of Henry Ilerr, the guardianship ended, and if there was a balance in his hands, the minor became a creditor of the estate, and this the administrator may be compelled to settle and pay over. Whatever the deceased has received in his indivi- dual or fiduciary character, his representatives may be compelled to settle, either by attachment or sequestration, as in the case of the guardian himself. Judgment affirmed. Referred to, 3 II. 246 ; 10 Barr. 529 ; 9 II. 341 ; 1 C. 215. Commented on, 7 W. 67, 68; 6 Phila. 509. Affirmed, by Wells's Appeal, 9 Barr 103. Followed, 1 W. 235 ; 7 W. & S. 30, 31 ; 12 Smith 440. Hart against Withers et al. IN ERROR. One partner cannot hind his co-partner by deed, although it be given in a transaction in the course of the business of the firm, and the benefit of the contract be received by the firm. In such case where an award had been made against the defendants, and by agreement they were let into a defence on the merits, without beinji in any degree prejudiced by the award, in their defence, they are not precluded by the agreement from putting in the plea of non est^iirtuni, and availing themselves the of fact that the instrument declared on was executed but by one of the firm only. But if such agreement had that effect, it would be waived by taking issue on the plea of non ettt faction, instead of moving to have it struck out. N\ hen suit is brought against several partners upon a sealed in.-trument, executed by one for all. the plaintiff* cannot recover against the partner who actually executed the instrument alone. ERIIOH to the District Court for the city and county of Lan- caster. In that court it was an action of covenant, brought by the plain- tiff, who was also plaintiff in error, against the defendants, upon the following agreement : 286 SUPREME COURT [Lancaster [Hart r. Withers.] "Be it remembered that on the 13th day of January 1816, 1 have purchased of Benjamin Hart, forty acres, or as much more as he may choose to let me have, of woodland on the place said Hart bought of Joseph Miller, in Colerain township, at the rate of $-4 per acre. The cutting -to begin at the corner near John Caughey's field, and from thence along the road to the lower end of the mead- ow on said place, and to cut back in regular proportions or dis- tances from said road ; and I do hereby agree to give to said Hart, as soon as the quanity is surveyed, three notes for the amount, pay- able at either of the banks in Lancaster county, in equal propor- tions ; the first note payable on the first day of July next, the second on the first day of October thereafter, and the third and last pay- ment on the first day of January following. It is further agreed that I am to give said Hart two thousand good and sufficient chest- nut rails out of said wood-cutting, for which I am to have a credit of $30 on the amount of the wood. The wood to be all cut before the first day of May 1817, and the wood to be coaled in the same season. In witness whereof, I have hereunto set my hand and seal the day and year first above written. JOHN WITHERS & Co. Witnesses, WILLIAM MURRAY JOSEPH MILLER." The plaintiff entered a rule of reference, under which arbitrators were appointed, who, on the 10th November 1818, made an award in favor of the plaintiff for 11.70 with costs. On the 22d March is 20, the attorneys of the parties agreed "that the award of arbi- trators in this cause should stand as a security for the sum, if any, which shall hereafter be found to be due on trial; and that the de- fendants are to be let into a defence upon the merits, without being in any degree prejudiced by the award in the defence." The pleas of the defendants, upon which the cause was put to issue, were non cut fart urn, and performance with leave, &c. On the trial, the plaintiff, after proof that the article of agree- ment on which suit was brought, was executed by John Withers, but not in the presence of the other partners, offered in evidence in connection with that agreement, "the agreement entered in the cause by the attorneys to try the cause upon the merits, and to show that at the time of entering into the article, John Withers, Michael Withers and George Withers, were iron-masters in company, that they acted and transacted business for each other, by one ex- ecuting deeds in the name of one for the use of all the company. That the whole proceeds of the timber were taken to the company works, and there used for the joint interest of the company, with the full approbation of all the defendants." May 1830.] OF PENNSYLVANIA. 287 [Hart v. Withers.] This evidence being objected to, was rejected by the court, and a bill of exceptions sealed. The plaintiff then offered this evidence against John "Withers (the party who executed the article) alone ; this was also objected to, rejected by the court, and another bill of exception thereupon sealed. These bills of exception were severally assigned for errors. Jenkins, for the plaintiff in error, contended that the evidence was competent to charge the defendants upon the contract declared upon by the plaintiff'. It was incumbent on the plaintiff to prove that the defendants were partners, that the contract related to the partnership business, and that the deed declared on was the deed of all the partners. The evidence offered went to establish all these points. As a general rule it is conceded one partner cannot bind his co-partners by deed, but the partners may agree to be bound in that way, and then the deed of one would be binding on all. 1. What agreement will confer this power? 2. What is the usual proof of such agreement ? It is not necessary that such agreement should be in writing, or under seal, it may be by parol : Watson on Part. 103. As to the evidence of assent necessarv to constitute such agreement, it has v been held, that if they are present when the partner executes the deed, the co-partners will be bound ; and this although silent when it is done. Their assent is in that case inferred. The evidence of assent may be either express, or inferential. It will be inferred from the acts of the parties at the time, or their subsequent appro- bation ; as where one partner for his private debts binds the firm, and subsequently the other partners assent to it, they are bound, and this too in a transaction not of the partnership : Watson on Part. 109. The evidence offered went to establish this assent by proof, that the contract was beneficial to the partnership, that the fruit of it had been enjoyed by the firm, and that their usual course of dealing warranted this form of binding the firm. If the evidence did establish the assent of all the partners then they were all bound. This was for the jury to determine. One partner cannot bind the firm in a collateral guarantee, but the assent of the other partners to such transaction will bind them ; and it is competent to show this by proof, that the partners usually gave such guarantee : Chit, on Con. 74. If these partners wished not to be bound by this deed, they should have disclaimed it: Elliott v. Davis, 2 Bos. \ Pul. .'>:>S. Silence is evidence of assent in many cases : 2 Starkie's Ev. -'1 st . If one sell the land of another in his presence, and he is silent, he cannot afterwards assert his title. To permit him to do so would be a fraud on the purchaser. And in our case, if in point of fact, 288 SUPREME COURT [Lancaster [Hart v. Withers.] to bind each other by deed, was the mode of dealing of these part- ners, it would be to permit a gross fraud not to receive evidence of it to bind them. A deed executed by one partner for all, may be- come binding by subsequent acts of ratification : Skinner v. Day- ton ct al., 1 ( J Johns. II. 513. This case also shows that authority to bind partners by deed, may be by parol. But the evidence offered should have been received against John Withers, who exe- cuted the article. Where a judgment-bond was given by one partner in the name of the firm, a judgment entered on it, although not binding on the partner who did not execute it, is on him who did ; and the court will permit the name of the former to be stricken out, and the judgment to stand against the latter : Gerard v. Basse, 1 Dall. 119; 1 Black. 1133; Green v. Beals, 2 Caines 255; 4 Esp. 220. The agreement upon which the defendant was let into a defence, was an agreement to try on the merits ; and on this ground the evidence should have been received. It never was intended under that agreement that the defendants should be per- mitted to avail themselves of a defence purely technical, which this is. Buchanan, contra, contended that no position was better estab- lished than that one partner cannot bind another by deed : Wats, on Part. 160. The receipt of the consideration by the partners will not make it their deed, although it may be in a partnership trans- action : Harrison v. Jackson et al., 7 Term. R. 207. This case is no way distinguishable from that before the court. It was a part- nership transaction, on a full and valuable consideration received by the partners, and one partner executed the deed for all. In all commercial transactions one partner is considered the authorized agent of the co-partners, and they are in contemplation of law virtually present at, and sanctioning the proceedings of each other; but this holds only as to simple contracts: Taylor v. Cor- yell, 12 S. & It. 243. Authority to one partner to bind others by deed, must be created by deed, no subsequent parol acknowledg- ment will do : 2 Caines 255 : Chit. Con. 78. The case in Wats, on Part. 103, is where the partner executed the deed in the pre- sence of his co-partner, with his express assent and as the deed of both ; there both are considered as having executed it, the seal being adopted by the partner, who stood by, when it was put to the paper. But it is a very different case from ours, proceeding upon a principle no way connected with the doctrine of partnership. True, in commercial transactions, Mr. Chitty says that subsequent assent is sufficient to ratify anything done under the several power of the partners to bind each other ; but this is confined to commer- cial transactions and to simple contracts. In such cases the authority is implied, and subsequent acts and acknowledgments will certainly May 1830.] OF PENNSYLVANIA. 289 [Hart P. Withers.] confer it. But it is not so with regard to a contract by deed, and at all events, there is no case where, upon the plea of non est fac- tum, it was permitted to the plaintiff to prove the deed by evidence of subsequent assent on the part of the defendant. Upon this plea no evidence is competent but proof of actual execution. The case in 10 Johns. R. 513, was not between a stranger and the partners, but between the partners themselves, in which one partner asked contribution for money recovered against him on a deed executed by him for all, and in the name of all the partners. The question in that case was not upon the deed, and on the plea of non cst factum, but it was collateral to it ; and very properly the inquiry was permitted as to the beneficial nature of the con- tract the firm, and subsequent acts of ratification by the other part- ners. If a recovery had been had against John Withers alone on this article, and he had brought suit for contribution, and offered evidence that the benefit of the contract had been received by the firm, then this case would be an authority. Hopkins, in reply. These partners had authority to contract for each other, to promote the object of the concern. Here the fruit of the contract went to the use of the partners, arid the contract was made in the course of their business and for their benefit. It is therefore a defence stripped of all equity, a mere legal shadow, and without justice. The action is an action of cove- nant, which in Pennsylvania, is an equitable action : Kulm r. Nixon, 15 S. & R. 1^5. At law there is enough to avoid this technical defence, but in equity there is no doubt. Assent is essen- tial to constitute a contract, but it may be either precedent, con- comitant or subsequent to it, and in either case the same effect, a binding contract is produced. Here the proceeds of the contract were received arid used by the company with the full knowledge of the contract ; surely this amounted to an affirmance of it : Wat. on Part. 163. The operating reason for the rule that one partner cannot bind his copartner by deed, is that the consideration of a deed can- not be inquired into. This reason does not prevail in Pennsylvania : here the consideration is open for inquiry in our courts of law : in England in equity only can this be done; and it would be against mercantile policy to allow the funds of the firm to be hung up until this question could be decided in equity. And in England Lord Mansfield held in a case at Nisi Prius, it is true, that whore the debt was a partnership debt, one partner may give a bond for it. binding on the firm. But if the assent of the partners is given, there is an end of all reason for the rule. It is clear that where the partner is present when his copartner executes a deed in the name of both, although there is no evidence of express assent, both are bound. Here the authority is by parol, and the assent is inferred from the presence and silence of the partner. It estab- 1 P. & W. 19 290 SUPREME COURT [Lancaster [Hart r. Withers.] lishes that assent may be shown by proof of circumstances. This being established, it is manifest that circumstances necessary to evi- dence such assent will be as various as the transactions of men are diversified; and the question must be submitted to the sound dis- cretion of the jury. Mere presence is held to be sufficient evidence of assent ; other circumstances may exist to demonstrate it more satisfactorily ; and it would be incongruous to say that actual presence alone is sufficient. One may seal for many, and if all consent, it is the seal of all, whether there be one or many seals. It is the consent, then, and not the manual operation of sealing, which makes the instrument: Randall v. Van Yechten, 11* Johns. R. 60. In this case there was a mere resolve of the corporation to pay 3">00 on the contract, and it was held such evidence of assent sis would bind the corporation. The evidence of assent is much stronger in the case now before the court. He referred also to Buchannan v. Curry, 10 Johns. R. 137. Although the case in 19 Johns. R. 513 is a case of contribution, the whole court went upon the principle that subsequent ratification and assent were equivalent to actual execution by all the partners. But the agreement to try on the merits controls the defence, and excludes the defendants from ground purely technical, and stripped of all equity. The opinion of the court was delivered by GIBSON, C. J. The law of partnership is part of the law mer- chant which has respect exclusively to the business of commerce ; and as sealed instruments do not ordinarily enter into it, the author- ity of a partner being limited to the scope of the trade, is held to be incompetent to the execution of them. They may, indeed, be a partnership to carry on a business not purely commercial ; still, however, the authority of the partners is regulated by the usages of trade. The measure of this authority allowed by the law mer- chant, being graduated to the exigencies of commerce by experi- ence, is the wholesome and convenient one ; nor ought we, by an apparent hardship to be drawn into a desire to enlarge it. Un- doubtedly the partnership had the benefit of the plaintiff's wood, but he thought fit to furnish it on separate account ; and even if he supposed in point of law that the covenant of the party who sealed the deed bound all the defendants, yet that, as we have lately de- termined in Moser r. Libenguth, '2 Rawle42H, is riot such a mistake as would entitle him to equitable relief; much less can we. on the ground of an equity between the parties themselves, say that an instrument is a deed in equity, which is not a deed at law. That even in a court of plenary chancery powers will interpose for" or against a stranger on the foot of such an equity, admits of more than a doubt. Skinner r. Dayton is not that case, and I cite it merely to dissent from a point of doctrine asserted in it on the authority of Ball v. Dunsterville, 4 Term R. 313, that an authority May 1830.] OF PENNSYLVANIA. 291 [Hart v. Withers.] to one partner to bind the others by deed, may in some cases be by parol. I am at a loss to conceive how that case can be deemed an authority for the conclusion deduced from it. It was the case of a bill of sale, sealed by the one in the presence of the other, arid delivered as the act of both ; and it is therefore clear that the validity of the execution was not supposed to depend on the exist- ence of a previous authority. A thing done in the presence of another, and at his request, is his immediate act ; as for instance the administration of an oath in the presence of a judicial officer, who by the by cannot appoint a deputy. One may adopt as his own a seal affixed by another without his authority, or even against his will, and the delivery, being his immediate act, makes the instru- ment his immediate deed. The law is fixed and certain, that the authority of any agent to bind by deed, can, in no case or under any circumstances, be by parol. But it is alleged that the plaintiff was entitled to treat this as the covenant of all the defendants by their agreement in the cause. He had obtained an award under the arbitration act, and the defend- ants, instead of appealing, agreed to let it stand as a security for what, if anything should be found due, on terms of being "let into a defence on the merits, without being in ant/ deyrce prejudiced by the award in their defence." This word "merits" has certainly no technical or definite meaning ; but I cannot understand how a defendant can be without merits who cuts up the plaintiff's title by the roots by showing that he never entered into the covenant, which is the foundation of the action. Surely the avoidance of a convey- ance by the Statute of Frauds, would be matter of defence on the merits in an ejectment. What was the object of this agreement '.' Plainly to place the defendants in the situation in which an appeal would have placed them ; and in consideration of the expense and trouble thus saved, can it be supposed that they consented to yield the whole ground of their defence, or at least an impassible part of it ? It seems to me that if anything were wanting to shut out such a conclusion, it would be found in the stipulation that they were in no degree to be prejudiced in their defence by the award ; in other words, that for all the purposes of defence, they should be put in the attitude in which they stood before the reference. It was in their power, by appealing, to obtain the advantage of this de- fence, and it seems to me they ought not to be deprived of it by anything less than a precise and positive relinquishment. Hut even if the agreement were such as it is supposed to be. the effect of it was waived by taking issue on the plea of nun t'#t J\i<'tum instead of moving to have it struck out. Having thus staked his case on the existence of a fact, the plaintiff could not afterwards object to any evidence which was pertinent and competent to prove it. 202 SUPREME COURT [Lancaster [Hart r. Withers.] HUSTON, J. In this case I will state very briefly the grounds on which I cannot concur with the opinion of the court. The grounds on which one partner is not permitted to bind the other by deed in England do not exist, or at least all of them do not exist here. They are 1st, That the consideration of a deed cannot be inquired into here it can. 2d, That a bond will bind the lands of any partner who has lands aftor his death here a common note, nay account, is recovered after the deatli of the debtor out of land. It is admitted even there that one partner may bind another by bond sealed in his presence, although with but one seal. This must be solely because his assent is clearly proved by his being present and agreeing, not dissenting; now I cannot see why assent clearly proved in one way is not as effectual as assent clearly proved in another. Here the offer was to prove that each of the part- ners, who were iron masters and had lands in partnership, as well as chattels, were in the constant habit of making contracts under seal, which were ratified by the others, and the benefits enjoyed by them ; that this contract on the face of it for wood was for wood for their iron works, and was actually used at them, and the benefit enjoyed by them all. I would then have permitted this to go to the jury, and if they found n clear assent, either before or after, I would hold them bound. One partner is often bound in equity differently from what he is at law, because he has received the benefit: Lang r. Keppele, 1 Binn. 1'2-j. I would confine the power to partnership transactions, and to property which came into partnership, and was enjoyed by them under a contract which they knew was made by one of the firm. I would consider the case of partners whose principal property was real estate, as more within the reason of what I have said, and hold them bound by lease, and other agreements affecting lands, wherever the whole company knew of. acted under and derived advantage from such contract. As to the agreement by which the judgment w;is opened, and to try on the merits, whenever any person applies to open a judgment, he is bound to state all the objections which he then has, arid every rule and principle arid practice requires this. No person should be permitted to make successively several objections, all of which existed at the same time. 1 would consider (leorge as waiving all objections, except the one stated in his affidavit, viz., want of notice, and opportunity of appearing before the referees. But further, it was not agreed to set aside the judgment, it stood as a judgment, and the trial was only to ascertain the amount. The article of agreement was merged in the judgment, and ought to have been admitted to prove the price and quantity of wood and to show that no receipts were endorsed on it. I am perfectly satis- fied the result of this agreement is directly contrary to the under- standing of at least one of the parties to it, and to what was intended May 1830.] OF PENNSYLVANIA. 293 [Hart v. Withers.] by both when it was made: or if one intended this plea, such inten- tion was not made known. 1 would on the agreement consider this objection as not allowable ItouEiis, J., dissented on the point as to the effect of the agree- ment to open the judgment, and let the defendants into a trial on the merits. Judgment affirmed. Referred to, infra, 353, &o., 7 W. 333 ; 1 Jones 497 ; 1 II. 403. Followed, 5 W. 161. Snyder against Zimmerman et al. IN ERROR. The bail on an appeal from the award of arbitrators, under the Compul- sory Arbitration Act, is not subject to the practice in reference to special bail. Where the appellee is dissatisfied with the bail, his course is to apply to the court for a rule for additional bail, and the opinion of the court that the bail is sufficient, is conclusive ; he cannot treat it as a nullity, and issue execution. Hail may be dispensed with altogether, and suffering a term to pass with- out objection on the part of the appellee, dispenses with it. WRIT of error to the District Court for the city and county of Lancaster. The case was this: on the 1st of November 1824, an award under the Compulsory Arbitration Act, was filed against the defend- ants for $390.92 ; they appealed, and Richard Ream entered into the recognisance as their security ; on the 27th of November, the plaintiff's attorney excepted to the bail entered ; on the 1st Decem- ber notice of the exception was proved and filed. On the th of December a new recognisance was entered into by Curtis Ream as security; on the 18th December the plaintiff excepted to Curtis Ream as bail. On the 18th notice of tins exception was given, and on the olst Curtis Roam made an affidavit, which was endorsed on the back of his recognisance, "that lie was a freeholder worth Ssoi) after paying all his debts." This affidavit was made before the mayor of the city of Lancaster. The plaintiff, disregarding the appeal, issued a fi. fa. to June term I82f>, on which a levy was made on the personal and real estate of the defendants, who gave notice to the sheriff not to sell. The sheriff sold the personal pro- perty, and the loth August 1825, held an inquisition on the real estate, and on the 28th of August sold it. On the otli of December 294 SUPREME COURT [Lancaster [Snyder v. Zimmerman.] 1825, a rule to show cause why the fi. fa., c., should not he set aside, was obtained, and on the 17th June 1826, the rule was made absolute and restitution awarded. The District Court sits on the second Monday in June and on the first Monday of September. This writ of error was taken by the plaintiff, who now assigned for error that 1st. The award of the 1st of November 1824 was not appealed from, the bail attempted to be given being entered without notice to the plaintiff, and therefore a nullity. 2d. The bail entered after the exception taken to the first bail was without notice to the plaintiff, and without justification, and therefore illegal and void. 3d. The mayor of the city of Lancaster had no authority to take the affidavit made by the bail, and it did not therefore amount to a justification. Ifopkins, for the plaintiff in error, contended that bail on appeal from the award of arbitrators should not be permitted to be entered without notice to the appellee. Under the Act of Assembly, Purd. Dig. 20, certain requisites are required to enter an appeal, and these must be literally observed. The omission of the word firmly, in the oath required upon the appeal has been decided to be fatal to it. It is of much more consequence that sufficient bail should be entered. The party to be affected has an undoubted right to call in question their sufficiency. But how can he have the exercise of this right unless notice to him be required. The prothonotary is but a ministerial officer, and bound to receive the bail offered de benc cssf. If the bail is not entered, it is the duty of the prothon- otary, at the request of the party in favor of whom the award is, to issue execution. lie referred to Donaldson v. Cunningham, 13 S. & R. 243. The case of Jones v. Badger, 5 Binn. 461, is not like this case, for there the appellants gave notice that the cognisors would answer any questions. Without this notice, the appellant may enter whom he pleases, and the provision of the Act of Assembly for sufficient security is inoperative. But after notice of exception, at all events new bail cannot be entered without such notice. In England the party must give notice of entering special bail, and without such notice the bail is a nullity : 1 Archb. Prac. 80. Here, after exception had been taken, the new security, without notice to the party, justified before the mayor, who had no au- thority, to receive such justification. Bail must be taken before a person having competent authority before the court, a judge or a commissioner of bail : Jones r. Badger, 5 Binn. 462. In the in- cipient stages of a cause, if notice is not given of entering special bail, the plaintiff may sue the bail bond, and in error, if the bail May 1830.] OF PENNSYLVANIA. 295 [Snyder v. Zimmennan.] do not justify upon notice, the bail may be treated as a nullity, and execution issued. Porter and Buchanan, for the defendants in error, were requested by the court to confine their argument to the third error assigned. They argued that whether the mayor had the power to administer this oath to the bail or not, was a matter of indifference. The appeal was regularly entered, arid if the appellee were dissatisfied, he should have applied to the court; he could not disregard the appeal and issue execution. The right of appeal is liberally con- strued to preserve the trial by jury, which the arbitration law in some sort impugns. By the terms of the Act of Assembly, no notice is required of entering bail to obtain an appeal, and it has never been the practice to give such notice. The rules as to the mode of entering special bail are not applica- ble to entering bail for an appeal under the Arbitration Act. This was long ago decided in Jones v. Badger. But the justification was well taken before the mayor. Administering an oath, both here and in England, is a ministerial act, and the mayor had power to administer oaths, which is enough. They referred also to Means v. Trout, ID S. & 11. 349. In case the appellee was dissatisfied, application should have been made to the court at the next term after exception taken : Zeiglcr v. Fowler, 3 S. & 11. 238 ; Cochran v. Parker, G Id. 54'J. Here he suffered that term to pass, and comes too late upon this exception. This writ of error is not well taken, and should have been quashed; an appeal is still pending, and there is no final judgment in the case (Gardner r. Lefere, 1 P. & W. 73), and the execution could not be issued in the face of the appeal. Hopkins, in reply. We excepted to the bail, and it was for them to justify ; and they should have done this by the next term, and it is they who have slipped their time. The mayor has no greater or other power in this respect than a justice of the peace ; and if a justice has the power to take the affidavit of justification on exception to special bail, he must hear and determine the question judicially, which must be incongruous. Two terms elapsed after execution was issued before application to the court to set it aside; such application was then out of time. A motion to quash the writ of error cannot now be entertained. After joinder in error such motion is never received. The opinion of the court was delivered by GlUSON, 0. J. The bail in an appeal is not subject to the prac- tice in reference to special bail, \\here the appellee is dissatisfied, 296 SUPREME COURT [Lancaster [Snyder v. Zimmerman.] his course is a rule for additional bail ; but where, as here, the court is of opinion that the bail is sufficient, there is an end of the matter. The allegation that the justification was before an alder- man, is inaccurate in point of fact. The affidavit of sufficiency was merely sworn to before the alderman, who did nothing more than administer the oath, as under his general powers he might well do. But even were the appeal erroneously taken, the appellee precluded himself from insisting on it. Whether erroneously or not, it was actually taken, and could not be treated as a nullity, without having been formally quashed. Bail may be dispensed with altogether, and it has been repeatedly determined that the appellee does dispense with it by suffering a term to pass without objection. Here there was an appeal actually taken which is still depending ; and the execution having issued without a valid or ex- isting judgment to support it, was properly quashed. Order of the Common Pleas affirmed. May 1830.] OF PENNSYLVANIA. 297 McKim et al. against Souiers. IN ERROR. Where the plaintiff interrogated defendant's witness as to a conversation which had taken place between him and a certain W. B. ; and the witness stated the conversation, by which it appeared that he had not told W. B. all that he related in court, and the plaintiff then asked him "why did you not tell the whole truth to W. B. ?" and the witness replied, " I kept it back because I was living in plaintiff's house, as tenant, and if I had told it, he would have thrown me out neck and heels, he would have knocked my brains out. As soon as he did know it, he took out a landlord's warrant," and the plaintiff then called W. B. and by him gave evidence to contradict the statement made of the conversation. Ilehl, that it was competent to the defendant to give evidence that the plaintiff was a quarrelsome and dangerous man to those he had a prejudice against. Wherever a person has color of authority, and acts under a commission from the appointing power, but which, it may be alleged, has been forfeited by some act, perhaps of an equivocal nature, in all such cases the validity of the commission cannot be examined in a suit in which he is not a party. If a person usurp an authority to which he has no title or color of title, his acts would be simply void. But a colorable title to an office can beexamined only in a mode in which the officer is a party, and before the proper tribunal, the Supreme Court, in whom by Act of Assembly all the authority of the King's Bench is vested. It is not, therefore, competent, when a deposition is offered in evidence, and the commission of the justice of the peace, before whom it was taken, is shown, to prove that, after he was commissioned, he removed out of-' his proper county, where the deposition was taken, and thereby vacated his office. When a party has an opportunity of being present at the taking of a deposi- tion, and does not choose to avail himself of it, he shall not afterwards l>e permitted to except to a leading question, and answer in such deposition, or to make formal objections against it. When a party attends, and objects to the form of the question, then if the opposite party persists, he does it at his peril. ERKOR to the District Court for the city and county of Lan- caster. On the trial of this cause, the defendant, who is also the defend- ant in error, for the purpose of proving the payment of 1:20 to the plaintiffs, examined a witness of the name of Jeffries Marsh, who, in his examination in chief, testified to the fact of the payment. For the purpose of destroying the testimony of the witness, the plaintiffs interrogated him, on his cross-examination, as to a con- versation which had taken place between him and a certain Wallace Boyd. The witness stated the conversation, by which it appeared, that he had not told to Boyd, in that conversation, all that he related in court. Whereupon the plaintiff's counsel asked him the following question: "Why did you not tell the whole truth to Wallace Boyd ?" To which he replied as follows : ' I was not on ray oath, and I was not bound to confess to Wallace Boyd. The reason 1 kept it back was, I was living in Win. McKim's house as 298 SUPREME COURT [Lancaster [McKim c. Somers.j tenant, and if I had told it, he would have thrown me out neck and heels. If I had begun that kind of talk, he would have knocked mv brains out ; you would not have been troubled with judge and jury. As soon as he did know it, he took out a landlord's war- rant." After the defendant had gone through his testimony in chief and rested, the plaintiff called Wallace Boyd for the purpose, among other things, of contradicting the statement made by Jef- fries Si are h of the conversation which he alleged he had had with Wallace Boyd. The defendant then offered to prove by Boyd, that McKim was a quarrelsome and dangerous man to those he had a prejudice against ; to this testimony, which was received by the court, the plaintiff excepted. The plaintiff also objected to the admission of a deposition in evidence, on the ground that Joel C. Bailey, the person before whom it was taken, was not a justice of the peace. On the objection being made, the defendant read- in evi- dence a commission from the governor, bearing date the 28th March 1821. The plaintiff then offered to prove "that since the date of the commission the said Bailey removed from the county of Ches- / V ter" (in which he had been commissioned and where the deposition had been taken), "to the city of Philadelphia, that he rented a tavern in the city, and kept a tavern there for eighteen months, and afterwards returned to reside in Chester county ; that during his residence in Philadelphia, another justice was appointed in his stead, in the district where Bailey had been a justice." The court refused to receive this testimony, and admitted the deposition, and sealed a second bill of exception. The plaintiffs, who were present when the depositiou was taken, but objected to its being taken, on the ground that Bailey had no authority to take it, and took no part in taking it, objected to the admission in evidence of this ques- tion, and answer in the deposition. Question by defendant, ''Did Captain McKim tell you that he had received $100 of me in Wil- mington and Brandywine money?" Answer "Yes." The court overruled the objection and the bill thereupon sealed constituted the third bill of exceptions. The plaintiffs in error, who were also plaintiffs below, now assigned error in each of these bills of ex- ceptions. Parke, for the plaintiff in error. The plaintiffs did not attempt to disprove the reason why the witness had not told Boyd the whole truth, the evidence given by them went to impair his testimony on other grounds. The testimony then as to the character of McKim, was not in contradiction to any evidence given by the plaintiffs, but wholly irrelevant, and introduced to fortifv a witness, who as to this point had not been attacked ; and this too in violation of the well-established rule that the character of the party in a civil suit cannot be given in evidence: Anderson r. Long, 10 S. & It. GO; v. Gilkeson, ;"> Id. 352. May 1830.] OF PENNSYLVANIA. 299 [McKiin t'. Somers.] Second bill of exception. The commission of a justice of the peace is vacated by his removal out of the county (within which lie is commissioned), animo reaidendi. The county bounds the juris- diction of a justice, the district for which he is commissioned is his residence : Respublica v. McClean, 4 Yeates 399 ; Commonwealth v. Sheriff of Northumberland, 4 S. & R. 275. It was proper to prove that the justice had by removal vacated his commission, and had consequently no power to administer the oath to the witness : Berks County v. lloss, 3 Binn. 539. The deposition could only be taken by a person having that power : Keller v. Nutz, 5 S. 11. 240. The defendant is not helped by the distinction between officers de facto and de jure. There cannot be a justice of the peace de facto, he exists de jure, or not at all. An officer de facto comes in by color of right, in which case his office is vacated on a quo war- ranto. A bare swearing in and acting does not make a man an officer de facto, and unless there is some form of election, he is a mere usurper: Kex v. Lisle, 2 Strange 1090; Andrews 163; Baird v. Bank of Washington, 11 S. & R. 411. If a justice resigns he ceases to be a justice, and any act done by him after such resignation, would be the act of a mere usurper. His removal from his proper county has the same effect, it vacates his office de facto and de jure; after this he could not be sued for any act done as an officer, for which, otherwise, he would have been officially responsible ; nor would the individual who made a deposition before him, be indictable for perjury in case the deposition was false. Public policy too, requires that in this country, where officers are continually changing by election or appointment, that their power should cease as to all the world, when they go out of office. As to the third bill of exception, he contended that where the party I'efuses to take any part in taking a deposition, he must be considered as absent, and in that case, if a leading question be put and answered, and received in evidence it would be error. W. Hopkins and Hopkins, for the defendant in error, wore desired by the court to confine their argument to the second bill of exceptions. \\ hether the justice of the peace, before whom the deposition was taken, had de jure a right to exercise the powi-rs of that office, was not open for inquiry in a collateral proceeding. It was enough to show, as was done by producing his commission, that he acted by color of office, in the district for which he had been appointed. Indeed as to third persons, it is enough to prove that he acted as a public officer, without producing his appointment : Porter r. Luther, 3 Johns. R. 431. He is an officer de l;u-u>, ami that is all we were required to show, ;md where such officer claims to exercise his office, his right cannot bo brought into question in a proceeding to which he is not a party: Commonwealth r. Fouler, 300 SUPREME COURT [Lancaster [McKim v. Somers.] 10 Mass. 200. In all collateral controversies, in which the officer de facto is not a party, his acts are conclusive as to his authority : Parker v. Luffborough, 10 S. & II. 249 ; Baird v. Bank of Wash- ington, 11 Id. 411; Kiddle r. County of Bedford, 7 Id. 386. The attempt in a collateral way to inquire on the part of third persons into the complicated question, as to the right particularly of a judicial officer to exercise his office, must be always abortive as respects the officer, who would not be bound by a proceeding in which he is no party, and productive of an obstruction of justice, as it regards others who are usually ignorant of the precise circum- stances in regard to the authority claimed and exercised. The cases relied on by the plaintiffs in error, are cases in which the officer was himself a party, instituted for the very purpose of inquiring into the authority by which he claimed the office, and in some of these cases the distinction is taken between such direct inquiry, and where it is made in a collateral proceeding. In the former the right may be inquired into, in the latter it cannot. Buchanan, in reply. The question put to the witness as to the reason why he had withheld the whole truth from Boyd was a per- tinent question, and the answer of the witness was uncontradicted, and should never have been permitted to be made the ground of an attack upon the plaintiff, calculated to have an influence upon the jury, wholly distinct from the object professed : Starkie's Ev. 4 pi. 300. Neither reputation of character nor facts establishing character are proper for inquiry, even although the character of the party is incidental in issue, bv charging a fraud upon him : Phil. Ev. 13!). Were it otherwise, an endless inquiry would be opened. If the party could get a witness to say his adversary was a quarrel- some man, he may, to corroborate his witness, according to the doctrine established by the court below, go into proof that lie is quarrelsome, and then an interminable investigation is open as to circumstances of provocation, the measure of revenge, or the nature of transactions involving the acts of his whole life, and leading off from the issue between the parties. Second bill of exception. There was no attempt on the part of the defendants to prove that the justice was an acting justice of the peace, but he relied on his commission to establish that de jure he was such justice. If it had been proved that he acted as a justice, the case might fall within the principle of some of the cases cited, giving to his acts the character of those of an officer de facto. But that point is not presented, but the inquiry is, whether an individual, who does a single act as a judicial officer, shall be considered as having full power to do that act, without any right on the part of those who are affected by it to inquire into his authority. It is an important right to have witnesses ex- amined in open court in the presence of the court and jury; but May 1830.] OF PENNSYLVANIA. 301 [McKim v. Somcrs.] to permit a deposition to be taken by a person who is without power to administer an oath, and as a consequence, that the witness shall not be responsible for false swearing in taking that oath, is a monstrous violation of the wholesome principles of the common law. The cases relied on by the defendants in error are cases of minis- terial officers, whose authority had been conferred, but some requi- sites omitted ; as to third persons, their acts are not open to inquiry. But in no case has it been held, that it may not be shown that a person claiming to exercise a judicial office has no authority to do so, and that the fact of his acting is conclusive upon third persons as to his right to act: 4 Starkie Ev. 4, pi. 1135. On the third bill of exceptions he referred to Withers v. Gillespv, 7 S. & R. 10; Slieclcr v. Speer, 3 Binn. 132; Strickler v. Todd, 10 S. & R. 63. The opinion of the court was delivered by ROGERS, J. (who recapitulated the facts of the case) When it is recollected that Jeffries Marsh was a principal witness for the defendant, and that the plaintiff had attempted to impeach his veracity on his cross-examination, and by the evidence of a witness to contradict him, it became a matter of vital importance to the defendant and the witness himself that he should be sustained. It is in vain for the plaintiff's counsel to say that they had not attacked the character of the defendant's witness, for this is expressly contradicted by the bill of exceptions. Marsh says the reason he did not tell to Wallace Boyd what he knew of the pay- ment was a fear arising from the violent temper of William McKim. And this reason, if true to the extent stated, would account satis- factorily to the jury for the suppression of part of what he knew in relation to the alleged payment. It became then important that facts should not rest upon his testimony alone; and there can be no doubt that the defendant would have a right to fortify his case by proving by other witnesses the truth of the facts stated by him, as reasons for his conduct. For instance, it would have been com- petent for him to show that the witness was living at the tinn- in McKinfs house as tenant, and also to prove that as soon as McKim knew he had spoken about it, he had taken out a landlord's war- rant. But it is said that the evidence which is admitted is putting the plaintiff's character in issue, and that this cannot be done in an action of assumpsit, and for this the plaintiff's counsel have cited J'hillips and Starkie. No person pretends to dispute the general principle. This is not an attempt to put in issue the character of William McKim, but to prove from the knowledge of the plaintiff's witness himself the fact that William McKim was a quarrelsome and dangerous man to those he had a prejudice against. And this evidence, it will be recollected, is given to shield the character of a 302 SUPREME COURT {Lancaster [McKim r. Somers.] witness who had been attacked by the plaintiff. If this evidence leads to an inquiry which might affect the standing of McKim, he has his own counsel to thank for it, for it was in answer to an inquiry from them that he gave the reason why he did not state to Wallace Bovd all he knew of the transaction. Had the counsel for the defendant omitted to prove the temper and disposition of McKim, no doubt the jury would have been told that it was a mere excuse, totally untrue, resting on his own statement, and perfectly ridiculous in it.self. The temper of McKim gave probability to the reason assigned by the witness, and in this point of view it was material that no doubt should rest upon it. It is too much the habit of counsel to abuse and villify witnesses. It is the duty of the court to protect them by affording them some latitude to defend themselves from the slanders which are often heaped upon them. Under the peculiar circumstances of this case, we are clearly of opinion that the testimony was rightly admitted by the court. The plaintiff also objected to the admission of a deposition in evidence, on the ground that Joel C. Bailey, the person before whom the deposition was taken, was not a justice of the peace. Whether the facts alleged in the bill of exceptions would vacate the commission of the justice, we are not called on to determine. Whenever an information is filed, it will be time enough to determine the question. At present, we would think it improper cvfii to intimate an opinion. And this is not accorded to Mr. Bailey as a favor, but is nothing more than common even-handed justice that he should have an opportunity of being heard, and be permitted, if occasion should require it, either to traverse the facts or contradict the conclusions of law attempted to be drawn from them. It would be the height of injustice if we were now to determine or even suffer his right to hold his commission to be called in question, in a cause in which he is no party and cannot be heard. The counsel for the defendant objected to the court going into the question whether he was a justice de jure at all. and in this we conceive they were in the strict line of their duty. They contended, and with a force which has not been weakened by the reply, that it was sufficient for their purpose that he held a commis- ion from competent authority, and that in taking the deposition, which is an official act, he was acting in the district for which he was appointed; that this constituted him a justice de facto, with at least colorable authority ; and that as long as the commission remained, without being superseded by the governor or vacated by the Supreme Court, the validity of his acts could not be ques- tioned. One would have supposed that these reasonable objections would have been entitled to some respect. For, setting aside the extreme injustice of impeaching or even impairing the right to an office, without giving an opportunity of hearing to the party May 1830.] OF PENNSYLVANIA. 303 [McKim v. Somers.] principally affected by the decision, the inconvenience, and I may add, in some cases, the indelicacy of the inquiry would be intoler- able. If the plaintiffs had been heard in this preliminary matter, the opposite party would have been permitted to controvert the facts by the introduction of testimony on their part. And this would open a scene which I should be sorry to see exhibited in a court of justice. An examination would ensue before the court, which in some cases would last a week, whether a deposition should be re- ceived in a cause of the most trifling nature and amount. As the court would be both judge and jury, the inconvenience of this novel doctrine would cause them to pause before they acceded to it. If I understood the counsel, they admitted the law in its full force as respects ministerial officers, but denied it as regards judicial officers. I should have been pleased to have seen some authority in which the distinction is taken ; the reason for such distinction is not very apparent. If this be law. as regards ministerial officers, which may be shown by a host of authority. I say a fortiori it should be so held in the case of judicial officers. The law is founded on policy and convenience, reasons which apply with tenfold force to officers of the latter description. The constitutionality of the laws establishing the several District Courts of this state has been denied by some, although I am not among the number. Would the Common Pleas of Lancaster, York or the city of Philadelphia, have a right to call in question the validity of the commissions of the judges of these courts, on an objection to the reading of a de- position ? Nay more, would every Court of Common Pleas or jus- tice of the peace in the state have the same power, would a justice of the peace or Court of Common Pleas have a right to question the commission of one of the judges of the Supreme Court, on an an allegation of a removal from the state ? We occasionally visit our friends in the neighboring states, and it would be a singular spectacle if our offices should be vacated in our absence, on the plea that we had become citizens in another state. If this should be law, offices are held by a most precarious tenure. No court, pro- fessing the slightest tincture of judicial science, have ever under- taken to examine the right to office, either on writ of error, certiornri, or when the matter came incidentally before them. In the Com- monwealth v. Bache, this question came before the Supreme Court. Richard Bache was indicted for an assault and battery on Alder- man Binns. The indictment contained two counts, one for an assault and battery, the other for an assault and battery upon Alderman Binns, while in the execution of the duties of his office. It was the opinion of the whole court, that Mr. Binns' right to the office he held could not be questioned on the indictment ; and we accordingly suspended giving judgment, and put Baehe to an infor- mation, in the nature of a writ of quo warranto. This case is exceedingly strong, for the Act of Assembly enacts in express 304 SUPREME COURT [Lancaster [MoKiin v. Somers.] terms, that the acceptance of certain commissions named in the act, makes the commissions of alderman, justices of the peace, &c., null and void. It is strange that if the law be as stated by the counsel for the plaintiff' in error, we have not some trace of it in some adjudged case or elementary treatise. The pivot on which the argument of the plaintiff's counsel turned, was that a false oath, taken before such a justice, is not punishable as perjury. For this I should also have been glad to have had some authority. So far from this position being correct, I find the law differently stated in 2 Hawkins 89, a book of un- doubted authority, and in a case bearing great analogy to the present. It has been adjudged, says the commentator, that a false oath taken before persons, who having been commissioned to ex- amine witnesses, happen to proceed after the demise of the king, who gave them their commissions, and before notice thereof, may be punished as perjury; for it would be of the utmost ill conse- quence to make such proceeding void ; and therefore, though all commissions legally determine by the demise of the king who gave them, without any notice, yet for the necessity of the case, what- ever is done before such notice, must be suffered to stand good, for otherwise the most innocent and most deserving subject would be unavoidably exposed to numberless prosecutions for doing their duties, without any color or fault. I put this case, would the Court of Quarter Sessions of this county, suffer the constitutionality of the law establishing the District Court to be inquired into, on an indictment for perjury, committed in a cause tried before the Dis- trict Court ? The distinction is between oaths taken before persons merely act- ing in a private capacity, and those who take upon them to admin- ister oaths of a public nature without legal authority, or color of authority. Wherever persons wJio have color of authority, acting under commissions from the appointing power, but which it may be alleged have been forfeited by some act which may perhaps be of an equivocal nature, in all such cases the validity of the commis- sions cannot be examined in a suit in which they are not a party. The regular, ami indeed the only mode is by information. If a per- son usurps an authority to which he has no title nor color of title, that would present a different case; for every act of such a person would be simply void. But the law pays such respect to those who are clothed even with colorable title, as not to permit the title to be examined, except in a mode in which thev are parties, and before the proper tribunal, the Supreme Court, in whom by Act of Assem- bly, all the authority of the Court of the King's Bench is vested. The plaintiff in error further objects to the admission of the following question and answer in the deposition. Question, by defendant: "Did Captain McKitn tell you that lie had received 100 of me, in Wilmington and Brandy wine money?" Answer: May 1830.] OF PENNSYLVANIA. 305 [McKim v. Somera.] "Yes." This was opposed on the ground that it was a leading question. The court overruled the objection, and of this the plain- tiffs in error also complain. At common law, depositions were not received in evidence, and if received at all, it was with great cau- tion. It was thought, and justly too, that viva voce testimony was much better than depositions. But experience has taught us, as commercial transactions multiplied, and commerce extended, that the use of depositions tends to expedite causes, and indeed is indis- pensable in the administration of justice. Hence in modern time, they are guarded, but not put under necessary restraints. In Shu- ler v. Speer, 3 Binn. 130, it was decided that a leading interrog- atory put to a witness should be objected to at the time it was put ; it cannot be objected to on that ground alone at the trial. And in Strickler v. Todd, 10 S. '& R. 70, the same principle was recog- nised. It is said, and perhaps truly, that both parties appeared at the taking of the deposition, though this does not appear in Strick- ler v. Todd. And in neither case is the decision put upon that ground. Although McKim was not actually present at the time the question was asked, yet he might have been present. Instead of attending to the taking of the deposition, he enters a protest against taking it at all, without stating his reasons ; and therefore (not because he had no notice), it was taken in his absence. When a party has an opportunity of being present, and does not choose to avail himself of it, he shall not afterwards be permitted to make formal objections against it. Depositions are frequently taken by the parties themselves, without the aid of counsel, and are generally very inartificially drawn. If we were to listen to captious objec- tions, it would impair the utility of such proof, particularly in case of death. When a party attends, and objects to the form of the question, then if the opposite party persists, he does so at his peril. This is giving suitors every advantage which policy requires, and I am not for extending the privilege any further. Judgment affirmed. 1 P. & W. 20 80C SUPREME COURT [Lancaster Dietrich against Dietrich et al. A deposition taken in the Register's Court upon hearing of any cause litigated in that court, but not decided, is not evidence upon the trial of an is. "So a declaration or confession of one of the lessors of the plaintiff in ejectment is evidence against all of them : Jackson v. McVey, 18 Johns. R. 330. If the declarations of the party on record are not evidence, then no evidence can in any shape be obtained as to his knowledge,, for he cannot be called as a witness. But the confessions and admis- sions of a party on the record are always evidence, and that, too, although he be but a trustee : 2 Starkie Ev. 39 ; or whether they are made by a real or nominal partv, who sues for the benefit of another: 1 Phil. Ev. [74]; Banerman r. Radenus, 7 T. R. 663; Johnson v. Kerr, 1 S. & R. 25 ; Marshall v. Sheridan, 10 Id. 268. So in a civil suit against several, who have a joint interest in the decision, a declaration by one, concerning a material fact within his knowledge, is evidence against him and all who are parties with May 1830.] OF PENNSYLVANIA. 315 [Dietrich . Dietrich.] him to the suit : 1 Phil. Ev. [75] ; Johnson v. Beardslee, 15 Johns. R. 3. Declarations of a joint debtor, although not a party to the suit, may be given in evidence: 3 Day 309. But here we not only alleged incapacity of the testator, but a conspiracy, practices and fraudulent misrepresentations on the part of the principal devisees, and the evidence to support these allegations had been given before the offer of the declarations of the plaintiff. On this ground these declarations were clearly evidence. Fourth error. The evidence offered in this bill was rather infer- ence from facts than the evidence of facts: Miller v. Miller, 3 S. & R. 267. The declarations of the wife are never evidencft against her husband, even where she is the meritorious cause of action : 1 Phil. Ev. 64 ; Whart. 308, pi. 439 ; Randal's Peake, 17 ; 2 Stark. Ev. 707, note 2 ; Cro. Eliz. 245 ; 1 Esp. N. P. 413. Jenkins, on the same side. The cases referred to of Ferron v. Read, Logan v. Watt, Dorrick v. Reichenback and Sholly v. Diller, are all cases where the writing was either proved before the Regis- ter, Register's Court, or upon an issue directed for that purpose. In any such case, the probate is unquestionably prima facie evi- dence to go to the jury, but here the proceeding was arrested in limine, and a decree of probate never was made ; and the depositions by the Act of Assembly only become evidence in the event of a decree. By that act either party may ask an issue : and if that be directed, it must be conducted according to the principles of the common law. And they might as well have offered the paper alleged to be a will in evidence as to offer this deposition without the preliminary proof. This issue is not according to the Act of Assembly which makes the depositions evidence on appeal, but it is under the proviso or exception to the act which authorizes an issue, arid sends the cause to a different forum. It is important to adhere to the general common-law rule which requires the personal presence and examination of the witness before the court : Gilbert Ev. 54 ; and the party who wishes to avail him- self of an exception to that rule should be required to bring himself clearly within the exception. If the court will review the evidence on the preliminary question as to the ability of the witness to attend, it must be in a rank case. This is a wholesome principle and leads to justice ; and this is not such a case. By reference to the evi- dence the court will see that the plaintiff did not make out the inability of the witness to attend. Where counsel take the opinion of the court on a question of blended law and fact, error in that opinion is not assignable here : Rouvert v. Patton, 12 S. & R. 253. Upon this principle, if the court below did err on this point, this court will not reverse on that account. 316 SUPREME COURT {Lancaster [Dietrich v. Dietrich.] Depositions are the creatures of the civil law, and the proceed- ing upon appeal, under this Act of Assembly, is in the nature of a civil law proceeding. At common law they are but substitutes for what is considered better evidence, and not to be introduced but upon evidence clearly establishing the exception which warrants their admission. We proved that the decedent was an infirm, imbecile old man, and that he had been practised upon by the plaintiff, his son, for his own aggrandizement, and to the ruin of his brothers and sisters. He is not only a party on the record, and a principal devisee, but a devisee deeply implicated in a fraud in obtaining the will. If the principle be established excluding the declarations and acts of a devisee under these circumstances the grossest fraud may be pro- tected from examination ; legacies may be inserted in the will, and the devisee, who contrived and executed the fraud, become a party to the issue ; and all his acts and declarations which go to demon- strate that fraud are shut out, and no evidence can be given of them. The rule admitting the declarations of the party does not apply to the case of a mere trustee ; but where the party has an interest, his declarations are always evidence. This principle pervades all the cases, and the excepted cases are of parties having no shadow of interest as guardians, executors or mere trustees. Hopkins in reply. The questions presented are of peculiar importance. Wills are commonly made by old men, and their asso- ciates, who are usually old men, are the witnesses, and if their testi- mony is not perpetuated, disastrous consequences result. The Act of Assembly has therefore wisely provided to perpetuate that testi- mony. There are two modes of proving a will, in common form, and in solemn form. In common form it is proved by the oaths of the subscribing witnesses, which is the most ordinary mode in Penn- sylvania. This proof is ex parte and informal, yet to perpetuate acts so important, the depositions taken in this way are permitted to be read. This is the principle in the cases already referred to in 1 Yeates 87 ; 5 S. & R. 212 ; 10 Id. 94, and in 4 Yeates 13, and in the case of Sholly v. Diller. The officer usually has no practice in taking depositions, and commonly generalizes, and throws into the lump the testimony of the witnesses ; and yet these depositions, thus informally taken, contrary to all common-law rules in reference to testimony, are made evidence. But the Register's Court is held by men fully competent to the investigation, and proceeds not ex parte, but in the presence of the parties litigant. Under the Act of Assembly all the proceedings of this court, and before the regis- ter, up to the time of granting the issue, including the depositions taken, are a matter of record, and may be read although the wit- nesses are actually present in court. This court is solemnly consti- May 1830.] OF PENNSYLVANIA. 317 [Dietrich v. Dietrich.] tuted, and this proof is formally taken, and in solemn form, and much higher testimony than the ex parte probate which has been decided to be competent evidence. No evidence, therefore, was necessary to introduce the depositions. By the Act of Assembly they are made part of the proceedings, and in one event they are the only evidence upon which the highest court, in the last resort, are to decide. The legislature meant that the testimony should be taken and fixed ; and whether in common form, or in solemn form, it is evidence. Many a will has fallen to destruction for want of this care to preserve the testimony. These depositions are not only taken in solemn form, but when the recollection of the witnesses is fresh, and alive to the transaction, which has then but recently oc- curred. In the lapse of time the mind of the witness is agitated by the events of life, and his memory of the incidents connected with the execution of the will almost effaced. If the party were required again to take his deposition, before a justice, an old man would be liable to have his recollection played with, by the inge- nuity of counsel, and his testimony perverted. Depositions usually partake of the infirmity of the forum before which they are taken. But before the Register's Court the witness is protected by a court accustomed to manage and control the taking of testimony. Knowing the importance of the deposition of Gloninger (who wrote the will), we gave the preliminary evidence of his inability to attend. It is true it was agreed that our offer on this point in the second bill should be received, but at the same time the court overruled the deposition ; showing that the court considered that no testimony could be given which would warrant the introduction of the deposition. But it is denied that a discretion exists in the court below to reject evidence, which is not controlled here. The court below is called to make a hasty decision, and it would be monstrous to say that there is no review of such decision reject- ing evidence on the preliminary inquiry. In the case of Pipher v. Lodge, 16 S. & R. 220-21, the chief justice expressly affirms the position that such decision is the sub- ject of review. Every question is for the discretion of the court, but it does not follow that the exercise of that discretion is conclu- sive : Harwood v. Ramsey, 15 S. , the property in question was in action, and its reduction into pos- session depended upon a future contingency. But by the Act of Assembly of 1729-30, Read's Digest 180, in case of insolvency, debts are protected from the lapse of time. The right to the fund depended on the death of the widow, and the fund itself was not recovered until 1824, arid was not brought into court for distribu- tion until 1828. The suit for the recovery of the money (the scire facias), was prosecuted for the interest of all concerned. That was issued in 1814 ; from the death of the widow, in 1803, until this time, the only delay occurred, and that is insufficient to warrant any presumption of payment. From that time the rights of all were actively pursued: Cope v. Humphreys, 14 S. & R. 15. The court were right in arresting the fund until trustees were appointed under the application and discharge of Oblinger. A change of trustees of an insolvent has been allowed after the lapse of sixteen years, where the first trustees had never qualified : Gray v. Hill, 10 S. & R. 43G. Until the trustees do qualify, the estate of the insolvent is in gramio legis. The decree of 1801 in no way concludes the inquiry now before the court, as by the terms of that decree the fund was to be brought into court for future distribution. Norris, for the appellants in reply. The Orphans' Court have no jurisdiction as to the judgment-creditors of legatees, when the fund on which the legacies are a charge is brought into court for distribution. The Orphans' Court, although it is a court of chan- cery, has its power limited, by statutory provision, and cannot go beyond the statute. By the statutes its jurisdiction is confined to the estates of dead men, and it can make no decree in favor of a creditor of a cftttui que trust, who has a fund within its jurisdiction. It has the inci- dental power of appropriating money to liens on real estate of re- cord, but it cannot go further. Where the debtor denies the debt, it has no power by an adversary suit, to determine the question. It has no power to direct an issue, but in a question incidental to the 330 SUPREME COURT [Lancaster [Feather's Appeal.] estate of a decedent. To suffer this court to direct issues in any other controversy, would be to make it a court of chancery with general jurisdiction. The judge of the Orphans' Court had no right to go out of his proper forum to award the funds to assignees who had no existence, and to decide that the Common Pleas would create them. The creditors of Oblinger, whom the court undertook thus to protect, had no subsisting claim. Direct trusts, created by deed or will, as between cestui qiie trust and trustee, subsists unaffected by lapse of time. They are created by contract, and not by operation of law. All other trusts are affected by the Statute of Limitations, and lapse of time. And a stranger to the trust, who acquires an incidental right, as against the cestui que trust, will be barred by the statute, and his right effaced by time. Where the assignee does not act for a long time, the assignment is presumed to have been aban- doned : Adlum v. Yard, 1 Rawle 163. The interest of Oblinger under the will, is an interest in person- alty and not in the land. If he had taken it at the appraisement, he would have acquired an interest in the real estate ; but until he did this, his only right was to a share of the proceeds of the sale of the land, which was yet never adjudged to be real estate. The legacy to the wife of the testator was specific, and for that reason is not to abate. She was the chief object of the testator's bounty, and her legacy was to be first invested. And by the plain terms of the will upon her death, the legacy thus invested was to be divided among the three oldest children of the testator. The construction of the will is derived from itself, and cannot be made to vary by circumstances occurring after the death of the testator, and which could not have been contemplated by him when he made the will. The opinion of the court was delivered by HUSTON, J., (who stated the facts.) The return-days of process, &c., brought into the Circuit Court from the Common Pleas, Quarter Sessions or Orphans' Court, are fixed by Act of Assembly, and are the third Monday in March, first Monday in September, and second Monday in December in each year. It was objected here that as the certiorari removing the cause from the Orphans' Court to the Circuit Court, is not returnable for some months, we cannot pro- ceed with the hearing. Whatever may have been the case, when the appeal from the Orphans' Court was directed to the Supreme Court, certainly a certiorari is not necessary to remove an appeal from the Orphans' Court to the Circuit Court. This would seem to be a writ not issuable by the Circuit Court after judgment by any lower court. The certiorari and its return-day are then laid out of the case. Is the appeal from the Orphans' Court to be filed before May 1830.] OF PENNSYLVANIA. 331 [Feather's Appeal.] the next sitting of the Circuit Court in the county, or before the next return-day ? I think not before the latter. There could be no rule for filing exceptions, or non pros, for riot doing so until the return-day next succeeding the appeal. It would expedite business were it considered as returnable to the next sitting of the Circuit Court in that county; but under the existing laws we cannot compel a return before the next return-day. But here the appeal was filed, and decided by the Circuit Court, and no objection on this ac- count made, and an appeal taken to this court where the objection is first heard. We think it cannot avail at this time, it is too late; and, generally, if a party goes to trial by consent, in a lower court, at an earlier term than he was compellable to do, if he makes no objection then, his objection will not avail him afterwards. I am glad that in this case no injury is done to the party who alleged surprise. The Orphans' Court, in 1801, in accordance with the will, directed 400/. to be put out at interest, on bond arid judgment bind- ing lands, for the purposes mentioned in the will, the principal pay- able at the death of the widow. Instead of noticing the bequest of 1000^. to John, first and foremost, the remaining 350. pounds were divided equally among the children ; a judgment-creditor of John's got his share. We think this was wrong, but it is not be- fore us. and we could not now remedy it if it were. The widow died in November 1803, but the executors of Oblinger, to whom the bond was given, did not collect the money, nor even bring suit till 1814, and the cause was not tried and money raised till 1828. The executors then brought it into the Orphans' Court, and several questions were made as to the distribution. A person who had ob- tained a judgment against John claimed it, and the court decided against him ; he then brought the record into court and showed that John had applied for the benefit of the insolvent acts ; had assigned to trustees for the use of his creditors, and been discharged. The court decided the judgment was no lien, and rightly. Whatever John's interest originally was. under the will of his father, in the lands of his father, yet when those lands had been sold, and the money brought into court, and was again put out to interest, it be- came personalty; the bond was a mere chose inaction : and although judgment was afterwards entered on it, yet whoever heard of a judgment being a lien on another judgment ? The court next de- cided that they could not award the rnonev to John, as his interest was vested in his assignees, and it made no difference that the orig- inal assignees were dead, and no successors had been appointed. They would give time to apply to the Common Pleas to appoint others. This opinion was clearly right. If the debtor of an insol- vent who has assigned pays the insolvent, the assignees can compel him to pay again to them. If it were not so our insolvent acts 332 SUPREME COURT [Lancaster [Feather's Appeal.] would be a fraud on the creditors. And it would be strange if our courts were not bound to take notice of a general law. It does not alter the case that the application was not made by an assignee. Chancery when informed of a party in interest, not before it, always brings him in. But it has been said the Statute of Lim- itations has barred all claims against John, or that from the lapse of time his debts are presumed to be paid. Our insolvent act of 172!>-30, and every act since, provides that notwithstanding the discharge of the insolvent under the act, all debts due and owing from such debtor, and all and every judgment had and taken against him. shall stand and be good and effectual in law, to all intents and purposes, against the lands, tenements and hereditaments, goods and chattels of such debtor, which he or any other person or per- sons in trust for him at the time of his discharge, shall have had, or at any time thereafter shall or may be in an way seised or pos- sessed of, interested in, or entitled to in law or equity. This would seem to put the Statute of Limitations out of the way in such case ; but further, the court may, on consent of a majority in number and value of the creditors, make an order that the insolvent shall not be sued for seven years. If the Statute of Limitations runs against a person discharged under the insolvent laws, this order would put an end to all claims barred by a lapse of six years. I do not say that lapse of time, much greater than that allowed by the statute, will in no case raise a presumption of payment. This will often be the case when assignees act and have property in their hands. This, however, was not such a case as would justify the Orphans' Court in at once considering these debts paid. Where a creditor returns no funds, but some debts not to be col- lected till after a certain event (as here the death of his mother), it would be strange to say the debts were to be presumed paid before the fund came to hand. This is, however, a matter to be decided in the Common Pleas. The Orphans' Court were right in detaining the money until assignees should appeal. Those assignees will be trustees for the creditors, and for .John, if there are no creditors, or there be a sur- plus after payment of his debts. We think, however, that a time should have been limited within which the creditors should apply and get assignees ; John is not to wait for ever in suspense; we therefore confirm this part of the decree, with this addition, that if the creditors do not apply and get assignees who will give security at next term of the Common Pleas, in August 1H30, that the money be paid to John Oblinger or his lawful attorney. There was another matter mentioned which admits of no doubt. One of the sisters prayed the money awarded by the decree of the court, to be paid to her. There was an appeal to the Circuit Court, May 1830.] OF PENNSYLVANIA. 333 [Feather's Appeal.] and a few minutes or a few hours elapsed before the recognisance of bail could be drawn up, and bail brought before the court, but it was done the same day, and before the court rose. And the court refused to order the money instantly to her ; most clearly the court were right. To have given it to her, under such circum- stances, while the recognisance was writing, arid bail coming in, would have been grossly wrong. The decree, with the addition above mentioned, is in all respects confirmed. Decree affirmed. The dictum that the Statute of Limitations, does not run against the debts of a debtor discharged under the insolvent laws, is erroneous: Gest v. Ileis- kill, 5 It. 13G; Shoenbergert?. Adams, 4 W. 430 ; Sletor v. Grain, 1 Wh. 106. Gratz et al. against Phillips et al. An agent thus proved his own authority, " I never executed any other deed of defeasance than the one in question. I frequently wrote letters, signed receipts, and other papers of consequence for him (the principal), by which he at all times considered himself bound. I kept all his books of accounts for upwards of thirty years ; never had a written power of attorney.'' Held, that a deed of defeasance, executed by such an attorney, in the name of his principal, is not evidence to convert an absolute deed to the principal into A wife executrix, whether so constituted before or after her marriage, may be- sued with the other executors ; or if sole executrix, with her husband ; and in either case, after judgment against her as executrix, may have a devastavit lixed on her and her estate, and her personal or real estate sold for it. Wherever a husband and wife can sue or be sued by adversary process, an amicable action can be entered, and she and her rights are as much bound as if the proceeding had been adversary. APPEAL from the Circuit Court of Lancaster county, held by Gibson, Chief Justice. The suit was instituted by the following agreement : Simon Gratz, Joseph Gratz, and ^ Jacob Gratz, Administrators of Michael Gratz, deceased, v. Levi Phillips, Leah Phillips and Beliah Cohen. Amicable action in the Com- mon Pleas of Lancaster coun- ty of January Term l^'2'2. Case. We agree that the above action on the case be entered in the Common Pleas of Lancaster county, of the term of January 1822: 334 SUPREME COURT [Lancaster [Gratz . Phillips.] And we do hereby refer all matters unsettled and in variance be- tween the parties, to Casper Shaffer, Jr., John Reynolds and Jo- seph Ogleby, or to a majority of them, to meet at the house of Col. Jacob Slough, in the city of Lancaster, at any time the parties shall agree upon, upon thirty days' notice, and to make their award into the prothonotary's office, with power to adjourn from time to time, until the cause shall be decided ; and it is agreed that the ar- bitrators shall have no power in relation to any lands unsold at the time of instituting this suit, and that no advantage be taken by either party as to the form of suit, or the liability of the parties in it, and that the award and judgment thereon be final. Witness our hands this 29th January, A. D. 1822. SIMON GRATZ, One of the adm'rs of Michael Gratz. LEV: PHILLIPS, Executor of Joseph Simon. MOLTON C. ROGERS, Attorney for defendants. J. SIMON COHEN, Attorney for defendants. WM. NORRIS, Attorney for plaintiffs. The award made under the above agreement was set aside. Narr. was then filed in assumpsit for money had and received by defendants. Defendants plead non assumpserunt, actio non ac- crevit infra sex annos, payment with leave, &c., and set-off; repli- cation, non solvit, that the action did accrue within six years, and issues. Replication afterwards added, that moneys were received by defendants, as trustees, to which there was no rejoinder. The origin of this cause was a partnership in trade entered into in 17GO, between Joseph Simon, William Trent, David Franks and Levy Andrew Levy. Upon the settlement of their accounts, 28th February 1769, Trent was found indebted to Simon and Franks, on the general partnership account, 4082/., and to Simon on his sep- arate account, for which he held his bonds. To secure the payment of the debt to Simon and Franks, Trent then executed a mortgage to them of " seven thousand five hundred acres in Cumberland county," and conveyed other lands to Simon, either in satisfaction or as security for his separate debt. On the 18th May 1790, Franks assigned his half of this mortgage to Bernard and Michael Gratz ; and on the 28th of the same month ten tracts, supposed to be part of the mortgaged lands, were sold on the mortgage and bought in by Simon, who, on the 2d of August following, executed a deed de- claring that he held these ten tracts for himself and Michael Gratz ; " provided, that if hereafter the said assignment from said Franks May 1830.] OF PENNSYLVANIA. 335 [Gratz v. Phillips.] to said Gratz should prove invalid, that then this present acknowl- edgment shall be null and void." On the 9th and 24th of same August, Simon bought in the two other tracts sold on the mortgage. It appeared that prior to the assignment of the half of the mort- gage by Franks to Bernard and Michael Gratz, Franks had by a general assignment of all his property transferred his interest or half of the mortgage to a certain Tench Coxe and J. Hazelhurst, in trust to pay a debt to Amos Hayton, and that about the year 1802 Thomas Billington set up a claim on this transfer. Mr. Simon Gratz then gave satisfactory security to Mr. Simon against Billington's claim, and Simon, on the 2d July 1802, executed a new declaration of trust in favor of Simon Gratz, for the benefit of Michael Gratz, and without any condition whatever. After this, a certain John F. Mifflin set up a claim under Trent, to a number of tracts which he alleged were not included in the mortgage from Trent to Simon and Franks ; a compromise was made by which Simon held eight of the twelve tracts purchased at sheriff's sale, and Simon and Mifflin held the remaining four and seventeen others, as tenants in common. Simon's interest in the lands being thus changed, on the 12th January 1804 he executed another declaration of trust, in favor of Michael Gratz, and without any condition annexed, but with a clause contained therein that Simon and his representatives shall conduct the sales. The as- signment of Franks, under which Billington claimed, on the 16th May 1793 was transferred to George Davis, who transferred the same to Gratz for $000, after the death of Simon. Joseph Simon died 24th January 1804, having by his last will and testament appointed the defendants, his son-in-law, Levi Phil- lips, and his two daughters Leah and Beliah, to be his executors, and vested in them power to sell his lands ; by this authority the lands were sold at different periods from 1804 until 1818 inclusive, and the money received by Levi Phillips. The plaintiffs claim a moiety of the proceeds of sale of the lands held by deeds to Simon alone, and one-fourth of the lands held by Simon and Mifflin. The defendants set up various matters of defence. 1st. That they are not liable to account, because the assignment of the 18th May 1790, of Franks to Bernard and Michael Gratz, has proved invalid, and that consequently the several declarations of trust under it fail, and are not binding on Joseph Simon or his representatives. 2d. That they are not jointly liable, there being no evidence of the receipt of any money by any of the defendants, except Levi Philips. And 3d. That on account of the coverture of Leah Phillips, this suit cannot be sustained at all. 336 SUPREME COURT [Lancaster [Gratz v. Phillips.] An additional defence as to part of the plaintiffs' claim and the right to a set-off arose from the following circumstances: Two of the tracts of land which had been sold by the defendants were designated as being in the names of William Cox and Christian Dunegan, and which the defendants say were the private property of Joseph Simon. Another tract of land, in the name of William Trent, which had been sold and accounted for by the defendants by mistake, was also the private property of Joseph Simon, and that for the amount for which they had accounted they were entitled to a set-off. The claim to these lands arose in the following manner : On the 12th January 1764, Andrew, William and John Foster conveyed, by three separate deeds, eighteen hundred acres, includ- ing the tracts in question, to John Proctor, who on the same day conveyed to William Trent and Joseph Spear. It seemed that Coxe and Peters were in partnership with Trent as to his part. Spear conveyed, 22d June 1764, his half to Trent, and on the 28th February 1769 Trent conveyed his interest under Spear's deed to Joseph Simon. Afterwards, on the 8th April 1769, a partition of these lands was made, when the William Coxe and Christian Dunegan tracts were allotted to Trent. These lands were what are called the "Proctor lands," and much evidence was given by the defendants to prove that Simon, during his life and up to the time of his death, supposed they were his " George's Valley lands," and his own pri- vate property, and some evidence that Mr. Gratz treated those lands (George's Valley) as the private property of Mr. Simon, con- trary to his knowledge of the fact. Defendants offered in evidence the record of an action of account-render, Michael Gratz v. The present defendants, execu- tors of Joseph Simon, in Philadelphia, to July term 1807, to show that if the mistakes about what were the "Proctor lands" and "Georges Valley lands" were mutual, the plaintiffs have not abided by it, but have recovered a large portion of the proceeds of the "George's Valley lands," and therefore Joseph Simon is not bound by acts done in pursuance of it. This evidence, together with part of the deposition of Zalegman Phillips to prove the same thing, were objected to by the plaintiffs, and rejected by the court. The plaintiffs, for the purpose of showing that the deed of 28th February 1769, Trent to Simon, was not an absolute conveyance, offered a defeasance of the same date, executed by Levy Andrew Levy, attorney of Joseph Simon, to William Trent, together with the deposition of Levy Andrew Levy, taken on a commission to Baltimore, in the action of account-render of Gratz v. Simon's executors, by which some evidence is given of his own authority to execute the defeasance as the attorney of Joseph Simon. May 1830.] OF PENNSYLVANIA. 337 [Gratz v. Phillips.] This evidence was all objected to, and the objections overruled by the court. Much other evidence, having some relation to the different fea- tures of the case, was given on one side and the other, but which it is not material to state here. The counsel for the plaintiffs requested the court to charge the jury upon the following points : 1. That as it is expressly stipulated by the agreement under which this suit was entered in the Common Pleas of Lancaster county, to January term 1822, No. 162, that "no advantage be taken as to the form of suit, or the liability of parties in it," it is not competent for the defendants now to resist a recovery on behalf of the plaintiffs, on the ground that the action is miscon- ceived in point of form, or that the defendants are not jointly liable as trustees of plaintiffs, under the evidence given in the cause. 2. That purchasers for a valuable consideration, bona fide, and without notice of any claim upon the estate, are entitled to the peculiar favor and protection of courts of justice ; and as Michael Gratz, the plaintiff's intestate, purchased from Joseph Simon for a full and valuable consideration, a moiety of the lands sold to Joseph Simon by the sheriff of Northumberland, without notice at the time of the purchase of any title or claim to the lands by Joseph Simon, or any other person adverse to the title acquired by Joseph Simon under the sheriff's sale, and constituted him, Joseph Simon, his trustee, to sell the lands thus purchased, it is not competent for the representatives of Joseph Simon now to resist the recovery of the plaintiffs for their half part of the proceeds of the lands sold on the ground of an outstanding title in favor of third persons. 3. That a trustee cannot dispute the title of his cestui que trust, and therefore the defendants, the representatives of Joseph Simon, cannot resist the title and right of the plaintiffs to recover in this suit. They are estopped by the several deeds given in evidence on part of the plaintiffs from alleging that no title was acquired under the deeds by Michael Gratz for all the lands mentioned in them. 4. That from the lapse of time, and the non-action and acqui- escence of the trustees, the jury are bound to presume the trust created by the deed of the 20th March 1786, from David Franks to Amos Hayton's assignee, satisfied and extinguished, and that this stale and abandoned claim can form no bar to the plaintiff's right to recover in this suit. 5. That if the jury believe that in August 1700, when Joseph Simon purchased at the sheViff 's sale and sold a moiety of the lands purchased to Michael Gratz, he, Joseph Simon, had and possessed the title papers to the tracts of Robert Sample, Thomas Camelyne, Francis Sylver, Joseph Sylver and Samuel Sample, called now the George's Valley lands, he did kruo.w, or was bound to know, that 1 P. & W. 22 338 SUPREME COURT [Lancaster [Gratz c. Phillips.] these lands were acquired under the deed of 2Gth April 1770, from William Trent, in favor of the bond and mortgage given to Franks and Simon, and were company property, and were not his own pri- vate estate ; and that the impression of Joseph Simon, whensoever derived, that the George's Valley lands were his private estate can- not affect Michael Gratz, who was a bona fide purchaser, on the 2d August 1790, of the tracts of land now claimed by the representa- tives of Joseph Simon. 6. That if the jury believe that Joseph Simon made the declara- tions of trust of 2d August 1790, of 20th July 1802, the compro- mise with John F. Mifflin of 30th December 1802, and the declarations of trust of 12th January 1804, with the circumvention or fraud of Michael Gratz, or of any person acting as his agent, practised upon him in order to procure these papers, then Joseph Simon and his representatives are estopped, in conscience, justice and law, from denying the right of Michael Gratz and his repre- sentatives to recover the half of the net proceeds of the sale of the tracts of land in the name of Coxe, Dunegan and Trent, even if Joseph Simon himself entertained a mistaken impression as to what were his George's Valley lands, from 1790 till his death, in 1804. The defendants requested the court to charge the jury as follows : 1. That the assignment of David Franks to Bernard and Michael Gratz, and to Michael Gratz, of 18th May 1790, under which plain- tiffs' claim, is invalid, the said David Franks having, by a previous assignment, dated 20th March 1780, transferred all his property real and personal ; and that the acceptance of the order and the several declarations of trust, made upon the faith of the validity of the assignment of 1790, are not binding. 2. If the jury believe that the acceptance of the order and the declarations of trust were made by Joseph Simon, under the belief that the tracts called the George's Valley lands were his private property, and if it were well known to Simon Gratz, the agent of Michael Gratz, that such MTfcrc Mr. Simon's impressions, the con- cealment of the claim upon the part of Michael Gratz and his agent is a fraud which will vitiate the whole transaction. 3. The plaintiffs cannot recover in this action unless they prove a receipt of money by the defendants jointly ; and the coverture of Leah Phillips, one of the defendants, is a fatal objection to plain- tiffs' recovery. 4. This suit should have been instituted against the defendants as executors of Joseph Simon, deceased. 5. If the jury believe that the tract in the name of William Coxe, sold to John Wicks, and the one in the name of Christian Dunegan, sold to George Knep, called the Proctor lands, were the private property of Joseph Simon, the defendants are not liable to May 1830.] OF PENNSYLVANIA. 339 [Grata Phillips.] account for them ; defendants, for the same reason, would be entitled to a credit or set-off for the amount of the tract in the name uf William Trent, heretofore accounted for by mistake. A verdict was rendered for the whole amount of the plaintiffs' claim, except the allowance of a set-off that was admitted, and a small deduction for commissions. A motion was made for a new trial for the following reasons : 1. The court erred in not admitting in evidence the exemplifi- cation of the record of the action of account-render between the administrators of Michael Gratz and the executors of Joseph Simon, brought in the Supreme Court of the Eastern District of Pennsyl- vania, to July term 1807. 2. The court erred in rejecting part of the deposition of Zaleg- man Phillips, a witness on behalf of the defendants. 3. The court erred in admitting the deposition of Levy Andrew Levy, taken under commission in the action of account-render in the Supreme Court of the Eastern District of Pennsylvania, to July term 1807, No. 6, the record of which suit had been rejected as above stated. 4. The court should have charged the jury that the agreement in relation to the liability of the parties extended only to the award and proceedings of the arbitrators, and that it had no connection with the agreement to enter the amicable action, the agreement to enter the action and that to refer being entirely distinct. 5. Because the court ought to have charged the jury, that as there was no evidence of the receipt of any money arising from the Sales of lands by any of the defendants except Levi Phillips, or that the others were jointly responsible, the issue was not supported, and the verdict should be for the defendants. 6. Because the court ought to have directed the jury, that as it was in evidence that Leah Phillips was a feme covert, the action against the defendants jointly, for sums received by Levi Phillips, could not be legally sustained. 7. Because the court should have charged the jury, that the assignment of 18th May 1790, from David Franks to Bernard and Michael Gratz, and Michael Gratz was invalid, and that conse- quently the declaration of trust of 2d August 1790, was without consideration and of no validity, and that the declaration of 2t>th July 1802, and of 12th January 1804, though absolute on the face of them, were of no validity if the assignment of 18th May 1790, was invalid. 8. Because the court should have charged the jury, that if they believed, that at the time Mr. Simon accepted the* order on the 22d May 1790, he was ignorant of the previous assignment of David Franks of 20th March 1786, and that Michael Gratz, or those who acted for him, knew it, and concealed the fact from Joseph Simon, that then the said acceptance of 22d May 1790, and 340 SUPREME COURT [Lancaster [Gratz v. Phillips.] the subsequent declarations, were of no validity to entitle the plaintiffs to recover. 9. The court should have instructed the jury, that if they be- lieved from the evidence, that Joseph Simon was induced to accept the indemnity, and make his declarations of trust of 26th July 1802, or of 12th January 1804, by any representations of Simon Gratz, contained in the letter of 23d May 1802, which said repre- sentations have not been proved nor attempted to be proved, then said declarations are to be considered as not binding or affecting the said Joseph Simon. 10. That the court ought to have left it to the jury to decide whether the acceptance of 22d May 1790, or any of the declara- tions of trust subsequently made by -Joseph Simon, were, under the circumstances, obtained from him fraudulently or otherwise. 11. The verdict is manifestly wrong, because it is in evidence, that at the time of the execution of the several declarations of trust, Mr. Simon, who could neither read nor write, "except his name," was under the mistaken impression that the George's Valley lands were his private property, and was not aware that the Proctor lands were included in the sheriff's sale; that, therefore, the said declara- tions were void in relation to the Proctor lands, viz. : the lands in the name of Coxe, Dunegan and Trent. 12. Because the verdict is manifestly wrong, as it charges the defendants with the proceeds of the tracts, in the name of William Coxe and Christian Dunegan, which tracts were the private pro- perty of Joseph Simon. 13. The verdict is manifestly wrong, because no credit is given for the proceeds of the tracts in the name of William Trent, paid by Joseph Simon, in his lifetime, to the plaintiff's intestate by mistake, and to which the said plaintiffs and their intestate had no claim. 14. Because the court erred in charging the jury, that the deed of 28th February 1769, from William Trent to Joseph Simon, for a moiety of the ten tracts derived from Proctor, was a mortgage. 15. Because the court erred in charging the jury, that if the said deed was a mortgage, the private debt of Joseph Simon was, from the length of time, to be considered as satisfied, and that Joseph Simon had no title. 16. Because the court ought to have charged the jury, that if the deed of 28th February 1769, was originally a mortgage, the possession of the title papers by Joseph Sirnon, the possession and claim of ownership over the George's Valley lands, which he be- lieved to be the Proctor lands, and the lapse of time, were circum- stances for their consideration, from which they might infer that the paper called a defeasance, executed by Levy Andrew Levy, on the 28th February 1769, had been surrendered by William Trent May 1830.] OF PENNSYLVANIA. 341 [Gratz v. Phillips.] to Joseph Simon, if it ever had been in possession of, or delivered to said Trent, of which there was no evidence. 17. The verdict is manifestly wrong, because the jury have found the full amount of interest, from the time of the several receipts of money claimed by plaintiffs, although there is no evidence of any demand for any sums received since 1806. 18. Because the court did riot answer the second point of the defendants. 19. The court should have submitted to the jury, as being their peculiar province, the questions of fraud or mistake raised in the points submitted by the court by defendants. The motion being overruled and judgment entered on the verdict, the defendants appealed to this court. Champneys, for appellants. By the agreement of the 29th Jan- uary 1822, the parties had in view a reference of their matters in variance to an amicable tribunal, arid not to a court and jury. It is admitted that neither Leah Phillips nor Beliah Cohen ever received a dollar of the money claimed to be recovered from them in this suit; and there was no other consideration for their entering into the agreement. When this cause was formerly before this court, a construction was given to this agreement (Gratz v. Phillips, 14 S. & R. 144,) where it is argued by the plaintiff's counsel that if the case should be remitted to the Common Pleas, the plaintiffs would lose the advantage of one part of the agreement, the joint liability of the defendants. As to the construction of the agreement, were cited, Massey v. Thomas, 6 Binn. 333 ; Pow. on Con. 147 ; Mas- sina v. Hertzogg, 5 Binn. 388. A court should examine with as- tuteness an agreement which creates a liability, which equity would not enforce. Leah Phillips was a feme covert when she signed the agreement, and therefore no judgment against her, predicated upon it, can be sustained: 2 Saund. 101, note a; Sliver v. Shelback, 1 Dall. 165; Brown v. Caldwell, 10 S. R. 114; Stoolfoos v. Jenkins. 8 Id. 177 ; Grasser v. Eckert, 1 Binn. 586 ; Stark. Ev. 702, note /. If Joseph Simon was induced to make the declaration of trust of the 2d August 1790, by the representations of Mr. Gratz, that the assignment to Coxe and Hazelhurst was invalid, such declaration of trust would not be binding : Perkins v. Gay, 3 S. R. 331 ; Levy v. Bank of United States, 1 Binn. 27 : 1 Fonb. 106 ; 2 Pow. on Con. 125. But at all events the court should have submitted it to the jury, as requested : 2 Stark. Ev. 508 ; Dornick r. Richen- back, 10 S. & R. 84 ; Work v. Maclay, 2 Id. 415 ; Jones r. Wildes, 8 Id. 150. The second point the court did not answer, which was error : Powers v. McFerran, 2 S. & R. 44; Pedan r. Hopkins, 13 Id. 45. 342 SUPREME COURT [Gratz v. Phillips.] The deed of 28th February 1769, of William Trent to Joseph Simon, for the moiety of ten tracts of land, was absolute upon its face, and the alleged defeasance of Levy Andrew Levy, attorney for Joseph Simon, should not have been received in evidence, for the attorney had no power to make it ; nor did his deposition establish the fact that he had power ; and if it had, it should not have been admitted ; for an attorney in 'fact is not competent to establish his own authority : Gordon i>. Bulkley, 14 S. & R. 331 ; Nicholson v. Mifflin. '2 Dall. 240 ; James v. Gordon, 1 Wash. C. C. 335 ; Bel- las v. Hays, 5 S. & R. 427 ; Paley on Agency 133 ; Wentz v. De- haven, 1 S. & R. 312. Joseph Simon always considered the " George's Valley" lands as his private property until the date of the letter of Simon Gratz to Beliah Cohen, 6th March 104; and the court should have received in evidence the deposition of Zaleginan Phillips to prove this fact ; and also the action of account render, to show the time of the dis- covery of the mistake, and that the plaintiffs received the benefits of it. The court erred in instructing the jury to allow interest upon the money from the time it was received. A trustee is not charge- able with interest from the receipt of the money, nor until demand made: Knight v. Reese, 4 Dall. 182; Brown v. Campbell, 1 S. & R. 176. These moneys were not demanded before suit brought, for the letter of Simon Gratz, of 27th October 180"), demands an account of the " George's Valley" lands only. A demand before the money is received is an illegal demand, and will not alter the rule of law in this particular. Montgomery, for appellees. When the judge who tries a cause in the Circuit Court is satisfied with the verdict, it must be a strong case of injustice if this court will grant a new trial : Cain v. Hen- derson, 2 Binn. 108; Ludlow v. Union Ins. Co., 2 S. & R. 119; Commonwealth v. Eberle, 2 Id. 9 ; Com. of Berks Co. v. Ross, 3 Binn. 520; Smith et al. v. Odlin, 4 Yeates 468; Jordan et al. v. Meredith, 3 Id. 318; Campbell v. Sprout et al., 1 Id. 327-363. As to the defence predicated upon the assignment to Coxe and Hazelhurst the answers are abundant and easy. There was a re- sulting trust to Franks ; and it behoved the defendants to show that the fund was insufficient without these lands, which they did not do. The lapse of time would preclude any claim upon it. But in 1703, Coxe, Ilazelhurst and Franks assigned to Davis; and in 1806, Davis assigned to Gratz, by which the subject-matter of this defence was absolutely vested in the plaintiffs before this suit brought; and for another reason, that after Simon knew all about this assignment, he made two other unconditional declarations of trust. As to there being fraud in Gratz procuring these declarations, the idea is neg- May 1830.] OF PENNSYLVANIA. 343 [Gratz v. Phillips.] atived by the fact that he afterwards authorized Simon to sell the lands and account to him. The deed of Trent to Sirnon was not an absolute deed, but a mortgage ; this is manifest from the consideration being five shil- lings, and from the defeasance bearing the same date, and which is sufficiently proved by the oath of Levy Andrew Levy, that he had power to execute it, and that Simon declared it was a mortgage, and by the testimony of S. Etting, that Levy Andrew Levy was constantly in the habit of writing and executing papers for Simon, who could not write himself more than his name, and by a paper in the handwriting of William Trent, these lands are enumerated as his unsold land. But suppose they were his private property, they were certainly sold by the sheriff, and purchased by Simon for himself and Gratz, Simon is estopped by his declarations of trust, from alleging a defect of title to these lands. The action of account-render, the record of which was offered, was brought for an account of the sale of the five tracts of " George's Valley lands ;" it was therefore irrelevant, as was also the parol evidence of the same thing as contained in the deposition of Zaleg- man Phillips. By the declaration of trust, Simon reserved to himself the right to sell the lands, and by the same instrument bound himself to account for the proceeds of such sales when received. He is there- fore, by his contract, bound to pay interest for the money from the time it came to his hands, or those of his personal representa- tives. Leah Phillips, although feme covert, is bound to account. Mr. Simon could not, by the appointment of a feme covert to execute his will, sell the lands, and receive the money, and thereby defeat the claim of the plaintiffs against his estate, or against his representa- tives. A feme covert may be an executrix with the consent of her husband: Toll. Law of Ex'rs, 31-241; and if she takes letters, she is liable to all the incidents of an executor : Id. 357 ; Wentworth 207. The appointment of husband and wife to execute a will, makes them one executor. All executors must be sued : Gordon 290 ; Wentworth 95 ; Levinz 201. A married woman cannot administer without the assent of her husband, and the administra- tion then devolves on the husband: Gordon 154; Ld. Raym 360; Com. Dig., title Adm'n, letter D; 1 Salk. 300:' Wentworth 109; 4 Term Rep. 616 ; Win. Black. Rep. 801. A devastavit will bind both husband and wife: 2 Swinburn 750. If the husband submits to award the right of the wife, after his death she is bound : Kidd on Awards 46. Norris* on the same side. The defendants do not predicate their defence upon merits of their own. They do not contend that they 344 SUPREME COURT [Lancaster [Gratz v. Phillips.] are entitled to the whole proceeds of the sales of the land ; but they lay hold of every possible claim of every one, even remotely connected with the transaction, not to protect themselves, but to injure the plaintiffs. Coxe and Hazelhurst have not been heard of since 1793 ; they cannot defend for them. A trust untouched for twenty-four years, is extinguished in England and every state of this Union. As between the trustor and trustee, lapse of time may not operate ; but between the trustee and cestui que trust or the creditors, twenty years is a flat bar, if nothing is done between that period. As to the 1800/. to secure the payment of which the trust was created, the law presumes it was paid. Not until the trial of this cause in 1822, before the arbitrators, did the plaintiffs ever hear of the claim of Joseph Simon, nor that the tracts in the name of Coxe and Dunegan were his private pro- perty. The antiquity of the transaction, by which Levy Andrew Levy declared that the deed of the 28th February 1769, was in the nature of a mortgage, is decisive, when taken in connection with the settled law, that a mortgage may be discharged by parol, be- cause it is a mere security for a debt. Why take a mortgage of the same date on the Yandalia estate, to secure the partnership- debt, and take an absolute deed in consideration of 5s., for a private debt? Michael Gratz was entitled to the one-half of the proceeds of the sale by the sheriff, which was the consideration for the moiety of the ten tracts of land. The claim of Billington gave rise to the repeated declaration of trust of 1802 ; and that of Mifflin to the again repeated declaration of trust of 1804. Trustees are liable for interest in some cases without a demand, and in others not until a demand is made. Wherever the contract does not upon the face of it require a demand, interest will run from the receipt of the money. We are entitled to recover it in this case, because, First: The contract demands it. Second: All our letters and correspondence in 1805, contain a demand of it. Third : The conduct of the trustees has been vexatious. Can this suit be supported ? Joseph Simon, by his will in 1799, appoints the defendants to be his executors, and vests in them power to dispose of his real estate ; they thereby become nolens tWe?w, as to Michael Gratz, his trustees. We having had the right and remedy against Joseph Simon in his lifetime, must therefore, after his death, have the same right and remedy against his execu- tors, who voluntarily take upon themselves the trust. A feme covert may take an estate and hold it even in trust, when her husband does not dissent: Com. Dig. 98110, title Baron and Feme; Coke Lit. 3 a and 356 6; Doug. 452 ; 1 Roll. Ab. 660. May 1830.] OF PENNSYLVANIA. 34.J [Gratz v. Phillips.] Upon a lease to husband and wife, debt for rent may be maintained against both: 1 Roll. Ab. 110; 2 Levinz 63. The wife cannot be culled on to give bail. She cannot plead separately. The bail of the husband is the bail of his wife ; so of his plea. Although a wife cannot contract for herself, yet she may contract in trust for another, with the consent of her husband. In Wilt v. Franklin, 1 Binn. .002, the assent of trustees is presumed. Mrs. Phillips could not in the exe- cution of this trust, make a contract by which her husband's rights could be affected ; if she did her duty, he co.uld not be. affected in any way. She is not here sued for a violation of a contract made by her, but for a violation of her duty under a trust, accepted by the consent of her husband. Cohen, in reply. It is one of the first principles of the law on this subject that a contract entered into by a feme covert during coverture is void ; as to the feme, she is under the influence of her husband, and in the language of the chief justice, in Lancaster v. Dolan, 1 Rawle 231, " the law will not permit her to be coaxed or bullied out of her rights." If the will of the husband can make his wife a party defendant to an action, or if the wife can agree to become a party thereto and be bound by its consequences, every protection which the principles of the law throw around a feme covert are swept away, for she can in every case do indirectly what it is admitted she cannot do directly. Cited, Groh v. Eckert, 1 Binn. 575. It is said that this court, in the exercise of its equitable powers, may grant relief. But what grounds are there for equitable relief here against Mrs. Phillips, who it is not pretended ever received one dollar of the money for which this suit is brought? In the case of Lang v. Keppele, 1 Binn. 123, referred to by the appellees, there was a distinct ground of relief, which does not exist here. It would be monstrous to charge the separate estate of Mrs. Phillips, for no other reason than that she, while a feme covert, entered into an agreement, which, if she had been a feme sole, would have bound her. It is always for the protection of the wife that the law permits her to be joined with her husband as a defendant, and then only when in a fiduciary character. It is said her separate estate is liable for a devastavit committed by her. This is only true in the case where she was executrix or administratrix before marriage : (>ord. Law. of Dec. 266; 2 Brown Chan. 323; Toll. Law of Ex. 3:>S-9, 430 ; 1 Salk. 306. This distinction is reasonable, for a feme sole executrix accepts the trust voluntarily, and receives the advantages of her devastavit. But when the trust is cast upon her during coverture, she can only accept with, and cannot refuse to accept without, the consent of her husband : and whether she accepts or refuses the trust, it is for his benefit or advantage, and his estate alone should be liable for a devastavit. 346 SUPREME COURT [Lancaster [Gratz v. Phillips.] But it is said it is no protection to one sui juris that he is joined with one incompetent to contract. This is true as regards con- tracts, but not true as to proceedings at law. The tracts of land in the name of Coxe and Dunegan were de- rived from Proctor, and Simon always claimed them as his own private property, supposing, however, that they were the "George's Valley lands ;" this mistake he might readily have made, for he could neither read nor write. That he did thus mistake is fully established ly the facts, that he exercised acts of ownership as to them'; he leased them; he mortgaged them, and in 1802 sold them to Potter, Morris and Craig. In his books, the ex- penses of the " George's Valley lands" are charged to his private account. Gratz knew he was under this mistake, for in a letter of 27th October 1^0/i, to Levi Phillips, he says: "I always did consider the ' George's Valley lands' as belonging to the holders of Trent's bond and mortgage." He always had access to Simon's papers, and had the dt-ed for these lands in his possession. It is not until after the death of Simon that he claimed an account of the "George's Valley lands," which he knew Simon had always claimed as his own property. On this part of the case, the court took the facts from the jury by saying, "that as to the three tracts the defence failed." If the deed of Trent to Simon, of the 28th February 1769, was originally intended as a mortgage, it subsequently became an abso- lute deed by the acts and consent of the parties. This is inferrible from, the fact, that it was not proceeded upon to judgment; that it was not put upon record until 1789 ; and the defeasance never was recorded, which is inconsistent with the character of Simon as an honest man, unless the parties had previously agreed to consider it an absolute deed. Simon took possession of the " George's Valley lands," supposing he was taking the " Proctor lands," under this deed to Trent ; the mortgage was, therefore, accompanied by pos- session for more than twenty years, which of itself makes the deed absolute. The other points in the case are fully stated in the opening. The opinion of the court was delivered by IlrsTox, J. I shall attempt to give a statement of this case, the facts of which, in the order in which they were submitted in the Circuit Court and here, it was not easy to comprehend at first view. On the 16th May 1760, a partnership as merchants, or Indian traders, was entered into by Joseph Simon, Levy Andrew Levy, David Franks and William Trent. About 17623, the Indians plundered their storehouses, and May 1830.] OF PENNSYLVANIA. 347 [Gratz v. Phillips.] they became involved in debt and difficulties ; and then, or soon after, the partners ceased to do business as a firm. On the 4th January 1769, William Trent gave a bond to David Franks and Joseph Simon for 8164^., conditioned to pay 4082^., the sum due them on settling the accounts. How Levy Andrew Levy got out of the firm, or settled, does not appear. On the 28th February 1762, William Trent gave to Franks and Simon, a mortgage on seven thousand five hundred acres of land in Cumberland county (this is the only description), and some other imaginary property, to secure the above bonds, and the debt due on them. William Trent, besides the above debt, to the creditor partners of the company, owed a private account to Joseph Simon, to secure which, he, on the same 4th January 1761), gave to Simon his bond for 885/. 14s., conditioned to pay 442. 17s. on 4th January 1770. Before the date of this bond, viz. : 12th January 1764, Andrevr Foster had conveyed to Captain John Proctor, five hundred acres of land on Mahony creek, John Foster had conveyed to the same three hundred acres, and William Foster, one thousand acres. On the same day, Proctor conveyed to Trent and Joseph Spear the same lands. On the 22d June 1764, Spear conveyed his moiety to Trent. On the same day on which Trent gave the above- mentioned mortgage to Franks and Simon, viz., 28th February 1769, they conveyed their moiety of these lands got from Spear, to Joseph Simon. The conveyance is endorsed on the back of Spear's deed. The lands are here called ten tracts, said to contain three thousand eight hundred and fifty acres ; the consideration in the deed, 5s. The other moiety belonged to Coxe and Peters. But another paper was given in evidence, dated 4th January 1769, and signed by Joseph Simon, in which he recites a debt of 885/. 14s., conditioned to pay 442/. 17s., which would be due in two weeks. That indenture witnessed, that on the said William Trent or George Croghan, for him, making over to said Joseph Simon, as security for his debt, the full quantity of five thousand acres of land, out of a tract of land which said Trent holds in company with George Croghan, on the head of the river Delaware, in the county of Albany, and province of New York, and the said Croghan engaging to have it effectually transferred to said Simon, as security tor the debt aforesaid, and the said William Trent, making over likewise, a quantity of land purchased by John Proctor (the half of which belonged to William Coxe and Kit-hard IVters), then the said Joseph Simon doth agree, that the payment of the said debt be deferred for one year, and a new bond taken for the same, payable in one year from that date. And further, there was offered and received in evidence, a defea- sance to the deed of 28th February 1769, dated the same day, and 348 SUPREME COURT [Lancaster [Gratz v. Phillips.] signed Levy Andrew Levy for Joseph Simon ; this made the deed of the same date a mortgage to secure the debt of 44 '21. 17s. This made it proper to introduce evidence as to payment of the bond, and that was as follows : On the back of the bond was en- dorsed a receipt, dated 2Sth December 1781, for a bond for 345?. 9. 6c?., on account of interest. A bond, dated 28th December 1782, from Trent to Simon, for 790?. 17s., conditioned for the payment of 345?. 9. Gd. ; and another bond, dated 20th March 1784, same to same, for 190?. 15. lit?., conditioned for the payment of 95?. Is. lit?., in one year. Among the lands which came through Proctor, were three tracts on Middle creek, in the names of William Coxe, William Trent and Christian Dunegan. This part of the case must be kept in mind ; for the greatest part of the difficulty and dispute in this cause arose from a real or supposed confusion of the tracts conveyed to Simon alone for his own debt, with other lands hereafter to be mentioned, which were conveyed to him by Trent, in payment of the debt to him and Franks. The validity of the defeasance, and the authority of Levy Andrew Levy to sign it for Joseph Simon, was also contested. The next fact, in order of time was, that on the 4th of January 1779, William Trent, for the purpose of discharging the mortgage to Franks and Simon, conveyed to Simon one thousand nine hun- dred and twelve acres of land, at 20s. per acre, and a receipt for 912?., was on that day endorsed on the bond. And on the 26th April 1779, he also conveyed three thousand five hundred and sixteen acres, at the same price of 20s. per acre, to Joseph Simon, for the same purpose. Among the tracts (and the respective quantity of each was specified), were five tracts in George's Valley. It may be noted here, that on the face of the deed, these whole three thousand five hundred and sixteen acres were conveyed expressly on account of the partnership debt, and these payments deducted from the principal and interest of the bond, would leave about 33000 still due. In 1780, David Franks being in London, and indebted to one Amos Hay ton, executed a deed of trust to Tench Coxe and Isaac Hazel hurst, of certain specified lands (none of those herein before mentioned), and all the personal estate and effects of said David Franks, in North America, and also, all debts and sums of money due and owing to said Franks, from any persons in America, in trust, to pay the debt to Amos 1 1 ay ton, and the residue to Franks. On the 18th May 1790, David Franks recites the bond and mortgage from Trent, to himself and Simon, and in consideration of a debt due to Bernard arid Michael Gratz of 1968?. 2*. 2d. and a debt to Michael Gratz of 624?., he assigns to them all his interest May 1830.] OF PENNSYLVANIA. 340 [Gratz v. Phillips.] in said bond and mortgage, reserving to Joseph Simon his expenses respecting the premises over and above lux (Simon's) one-half of said bond and mortyaije. Arid in case the proceeds of the said mortgage should exceed his debt to Gratz, the overplus for David Franks. Along with this assignment, and of the same date, Franks drew an order on Joseph Simon to pay to Bernard and Michael Gratz one-half part of what should be received on the bond and mortgage. This was presented to Joseph Sirnon and by him accepted on 22d May 1790. Joseph Simon had at this time sued out a levari facias on the mortgage, and levied it on fifteen tracts of land in North- umberland county, of which three were purchased by strangers, ten by Joseph Simon, and two in the name of Levi Phillips, but treated by Simon as his own ever after. On 2d August 1790, there is a declaration of trust by Joseph Simon in favor of Bernard and Michael Gratz, which recites the assignment of Franks to Gratz, and adds, " provided, nevertheless, that if hereafter the said assignment should prove invalid, then this present acknowledgment shall be null and void." This declares Michael Gratz joint owner with Simon in the lands purchased and in the money received from those who had purchased the three tracts; and promised, as the lands should be sold, to pay to Michael Gratz one half of the proceeds. It mentions ten tracts. 20th May 1802, Levi Phillips, who was the son-in-law and clerk of Simon, informs Simon Grata, then acting for his father Michael Gratz, that Thomas Billington was claiming under the assignment to Hay ton. 23d May, Simon Gratz replies he had long known of that claim, and that the assignment was not available, &c. On the 2l>th July 1802, Simon Gratz, as attorney for Michael Gratz. gives to Joseph Simon a bond of indemnity against the pretended assignment of David Franks, so far as it may be used to affect the rights of Simon to the mortgaged lands. Same day Levi Phillips, for Joseph Simon, and in his presence, gives a new declaration of trust to Michael Gratz for the lands purchased ; and promises to pay over half of the money as soon as it is received from the sale of the lands. On the 12th January 1804, another deed of trust was executed by Joseph Simon like the last. John F. Mifllin claimed the lands bought in under the mortgage. and brought an ejectment for them: ami on 30th December 1802. Mifllin, Simon and Gratz made an agreement by which Mifllin got three of the tracts bought bv Simon and one bought bv Phillips. Simon and Gratz got the remaining eight tracts and one-half of seventeen tracts which Mifllin claimed, and which they claimed under the mortgage for seven thousand five hundred acres. 24th January 1804, Joseph Simon died, having first made his 350 SUPREME COURT [Lancaster [Gratz r. Phillips.] last will and testament, by which he appointed the defendants to be his executors. I now back to Franks' assignment to Hayton. On the 16th May 1708, Tench Coxe and Isaac llazlehurst and David Franks made an assignment to George Davis. On the li4th July 180(3, George Davis assigned to Simon Gratz. This suit was brought to recover one-half of the money actually received since the death of Joseph Simon from the sales of the eight tracts contained in the sheriff's deed to Simon, and the declarations of trust and not ceded to Mifflin, and one-fourth of the purchase- money received by defendants from the sale of the seventeen tracts, of which Mifflin was half owner, and Simon and Gratz were joint owners of the other half. Of the preceding, the defendants gave in evidence all that related to the private debt from Trent to Franks. All the deeds from the Fosters to Proctor, from Proctor to Spear and Trent, and Trent to Simon. A partition was made between Trent, Coxe and Peters on the 8th April 1769, by which the tracts in the names of William Trent, William Coxe and Christian Dunegan fell to Trent; and as defend- ant alleged, thus became the exclusive property of Joseph Simon. They showed that in the adjustment with Mifflin the tract in the name of William Trent was allotted to Mifflin, and the other two, Coxe's and Dunegan's, had been sold by defendants ; and although these three tracts had been levied on as Trent's by the sheriff of Northumberland, and sold as forming part of the seven thousand five hundred acres, and bought by Simon, and a trust as to half of them declared for Gratz, yet they alleged all this was a mistake. They proved that Joseph Simon could not read nor write, except his name. They also gave evidence to show that Joseph Simon, through his whole life (under a mistake to be sure), considered the George's Valley lands as those called the Proctor lands. That the expenses, taxes, &c., of the other lands were charged in his books, one-half to David Franks, "while he was owner, and after the assign- ment by Franks to Gratz were charged to Gratz, while in his books all charges arising on the George's Valley lands were made as arising from Jiix own land, and that many of these entries were made by Simon Gratz. who lived with Joseph Simon, his grand- father. They showed that he leased them, mortgaged them as his own on the -Nth June 171*0, and afterwards discharged the mort- gage; that Simon Gratz witnessed an agreement for the sale of one of them, and knew the whole transaction, and the mistake, as appeared by his letter to one of the defendants, soon after the death of Joseph Simon. The defendants also gave in evidence the assignment of Franks to Coxe and Hazelhurst in 17H6, the subsequent assignment of May 1830.] OF PENNSYLVANIA. 351 [Gratz v. Phillips.] Franks, Coxc and Ilazelhurst to Davis in 1793, and that of Davis to Simon Gratz in 1806. The defendants then offered in evidence an action of account- render, No. 6, of July Term 1807, Michael Gratz against the present defendants, as executors of Joseph Simon, deceased, which as amended stands, Michael Gratz, surviving partner, and who had been jointly interested with Bernard Gratz, deceased, to show that if the mistakes were mutual, and both parties acted on the suppo- sition that the "George's Valley lands" were the "Proctor lands," that the plaintiffs have not acted as partners under the deeds of trust of 1790, 1802 and 1804, by Simon to Michael Gratz, hut had recovered the eleven-twelfths of the price for which Simon sold them ; and that so far he had rendered Franks's assignment to Gratz invalid, and therefore the deed of trust became null and void. Arid they further offered the deposition of Zaleginan Phillips, coun- sel in that cause, to prove what was then claimed by the plaintiffs, and other matters. The court rejected the record, and that part of the deposition which related to what was claimed and proved in that cause. To understand this it is necessary to examine for what the for- mer suit was brought, and by whom and against whom. When Joseph Simon, in January 1779, took nineteen hundred and twelve acres of land, for 1912Z., and in April three thousand five hundred and sixteen acres, for 3516^., in payment of the mortgage, he held those lands by previous or subsequent agreement, in trust for him- self and David Franks, and after the assignment by Franks to Ber- nard and Michael Gratz, in trust for himself and the Messrs. Gratz, as is alleged and shown by both parties. He sold certain of those lands, particularly the five tracts in George's Valley and two others, in his lifetime, and received the purchase-money. In the account-render suit offered in evidence, Michael Gratz, in his own right (for he had a separate bond of his own secured by the assignment), and as surviving partner of Bernard Gratz, sued for an account of those specified lands, stating and describing them ; and that they were held in partnership by Joseph Simon and Ber- nard and Michael Gratz. The account made out by the auditors, states each tract, and the price at which it sold : but strange as it may seem they give to Joseph Simon one-twelfth part only, and the other eleven parts to the plaintiff. The exceptions to the report not being filed in time it was confirmed : 3 Binn. 474. It appears by the admissions and proof in this cause, that there the plain- tiffs declared on one contract and recovered on a different, and even an inconsistent one. Bernard Gratz never had any interest in the Hayton deed; it was purchased by Michael Gratz, after Bernard's death, which appears in that record to have been in 1804. Besides, under the evidence given in this cause, that Joseph Simon applied to Gratz respecting this claim, and was told it was worthless, it 352 SUPREME COURT [Lancaster [Grntz r. Phillips.] could not be that tlic partner who thus informed him, should after- wards purchase it for a mere trifle, and use it to its full amount against his partner, at least not as to partnership property : 5 Johns. Ch. 407. Add to this the bond of indemnity given by Gratz to Simon, that it should not affect the partnership claim under the mortgage ; which I would consider a covenant that it should not. It presents a case to my mind, without the least shadow of doubt, hut we cannot reverse or affect that judgment : nor can we, as is nsked. give credit in this suit, although it is an equitable action, for what Michael Gratz recovered there beyond his share ; because that would in effect be reversing that judgment; and because this suit is between different parties, and to settle the accounts of a different partnership. When in 1790, Joseph Simon and Michael Gratz purchased the lands at sheriff's sale, the purchase-money belonged to Joseph Simon, Bernard and Michael Gratz. The lands pur- chased belonged to Joseph Simon and Michael Gratz, and they held them, not under the mortgage and old partnership which were ended by the sale, but under the sheriff's deed and the contract, of which the several deeds of trust of 1790, 1802 and 1804, are the evidence. This suit is not against the estate of Joseph Simon, but against the defendants as trustees of moneys received by them in that capacity, and not for anything received by Joseph Simon, in his lifetime. Whatever remedy then (if there is any) the estate of Joseph Simon may have against the plaintiffs, on account of the for- mer agreements and proceedings on them, it must be in some other action ; for this purpose that record was not evidence in this case. But it was offered in another view, to show that there was a former suit, and that in that suit the plaintiffs in this cause alleged and showed that Joseph Simon, during all the latter part of his life, was impressed with the belief that the "George's Valley lands" were the " Proctor lands," and his individual property ; that the plaintiff then proved this to be a mistake, and that the tracts in the names of William Coxe, William Trent and Christian Dunegan, were really the "Proctor lands," and that the plaintiff then reco- vered on this proof. And they contended that if the plaintiffs then recovered the price of the " George's Valley lands," on proving the mistake, defendants here ought to be discharged from accounting for the price of the William Coxe and Christian Dunegan tracts. The plaintiffs reply, that by levying on, and selling those tracts, as included in the mortgage, and executing the several deeds of trust, the defendants arc estopped from setting up any other title. I do not think the last deeds of trust make the matter any stronger than if it had been left on the first, under the circumstances of this case. And as the plaintiffs themselves prove the mistake, and recovered, I think the defendants ought to be permitted to show this, and to show also, the real state of facts ; and unless some cause is shown May 1830.] OF PENNSYLVANIA. 353 [Gratz . Phillips.] why it should be so, I do not see why the same party shall correct the mistake when he gains by it, and hold the other party to it, when he would gain by holding him to it. I am not to be under- stood as giving an opinion of what ought to be the final decision on this point; that must depend on all the evidence; I only say the evidence ought to be admitted as important in the decision. But it is said next, that the deed from Trent to Simon for the "Proctor lands" was only a mortgage, and that the mortgage is to be presumed paid from lapse of time. Of this last I doubt, under the circumstances of the poverty of Trent till his death, and other matters in this cause. Presumption met by presumption is for the jury. In deciding whether this was a mortgage, the deed or writing of defeasance, signed by Levy Andrew Levy for Joseph Simon, is of primary importance, although not under seal, yet it operates to destroy a deed under seal, and to take away the title to lands. It affects not the property of the firm of which Levy Andrew Levy was a partner, but the private estate of Joseph Simon. I think it much stronger than the case of Shaub and Withers, decided* this term. I did not agree to that case, but I am bound by it. But by the evidence he had no authority ; he says, " I never executed any other deed of defeasance than the one in question. I frequently wrote letters, signed receipts and other papers of consequence for him, by which he at all times considered himself bound. I kept all his books of accounts, for upwards of thirty years; never had a written power of attorney." Now to me this presents the idea of a clerk in a store or acting partner, and not an attorney in law or fact as to lands. He does not say any of those important papers related to lands, or that he had authority to execute this, or that Joseph Simon knew of it. And the testi- mony of S. Etting goes no farther. We think this paper ought not to have been received. But what difference can it make in this cause, if it is once found by a jury, that the whole proceeding as to the tracts Coxe and Dunegan is a mistake and error, whether they belonged to Joseph Simon exclusively, or to William Trent's heirs, and Simon was only mortgagee? In either case the plaintiffs have no claim to them. And if the plaintiff's right to them fails, it would be improper in us to decide between Simon's heirs and Trent's heirs ; the latter are not before us. I am of opinion then, that the record of the action of account- render was admissible, not for the purpose of revising, correcting, or in way affecting that judgment, but to show there was a former suit, and to let in proof, if such there be, that in that cause the plaintiffs proved the Coxe and Dunegan tracts to be the " Proctor lands," and that Joseph Simon was mistaken as to these and " George's Valley lands," as being material evidence in deciding whether the plaintiffs are entitled to the proceeds of those two 1 p. W. 23 3.->4 SUPREME COURT [Lancaster [Gratz v. Phillips.] tracts. By the bye. it seems as if this record was never presented to the chief justice who tried the cause in that point of view. And, I am also of opinion, that the defeasance signed by Levy Andrew Levy for Joseph Simon, was not evidence. Mr. Gratx has been called an innocent purchaser, and this in- sisted on ; it is true he was a joint purchaser of lands sold by the sheriff on a mortgage, the joint property of Simon and Gratz, though the name of Gratz was not in the mortgage. Who directed the levy does not appear ; each had an equal right to do it. The purchase was a mere arrangement : being owners of the mortgage, neither paid anything ; it extinguished so much of a joint debt. Neither of them purchased from the other nor paid anything to the other. There is nothing in the case to show that Gratz would have agreed to receive half the price at which the land sold, and let Simon keep the lands. The price bid for the whole ten tracts, was only 1032?. 8s. At all events, the mortgage (though I by no means say it was not an absolute deed), was not extinguished by lapse of time in IT'JO. Trent had been paying or renewing the securities in 178o, and Simon having purchased and taken posses- sion of these Coxe and Dunegan tracts and no claim by Trent or his heirs, it will be for the court and jury to say, whether his claims can now be opposed to that of Joseph Simon, and if not, the right to the price of these two tracts must depend on the fact of complete mistake in Joseph Simon or not. I now come to the objections to the action. There has been a prior suit between the parties, but in which the defendants were sued as executors of Joseph Simon. Wearied with the contest, they agreed to discontinue that suit, and entered the present amicable suit. It contains the following clause, " it is agreed that the arbitrators shall have no power in relation to any lands unsold at the time of instituting this suit; and that no advan- tage be taken by either party as to the form of the suit, or the lia- bility of the parties in it." It is now contended, that the parties defendants, being trustees, each was alone liable for what each received ; and that Leah Phillips, being the wife of Levi Phillips, could not be sued, nor could anv judgment be rendered against her. These objections, or at least one of them, was before the court, and decided: 14 S. & R. 144. There never could be any doubt about it. There arc often difficulties in proving which of two trus- tees actually receives the money; and the circumstances which will excuse or make liable all of them. They may waive all testimony on this point and agree to be liable, and it is greatly unreasonable, after thus putting the plaintiffs at ease on .this point to move for a new trial, because they did riot prove what was expressly admitted. Defendants were all executors of Joseph Simon and trustees of these lands; they knew their own situation, and how the money May 1830.] OF PENNSYLVANIA. 355 [Gratz v. Phillips.] received had been divided among them ; they have put it out of their power to object on this account in this suit. But another objection is made, that Leah Phillips is the wife of Levi Phillips, and a married woman, and cannot be sued, or cannot enter into an amicable action. A number of cases on this point were cited, and positions laid down, which were contrary to common impressions and constant practice. A wife may be sued, together with a husband, for a debt of the wife before marriage, and judgment rendered against both. A wife executrix, whether so constituted before or after her marriage, may be sued with the other executors, nay must be ; or if sole executrix, sued with her husband ; and in either case, after judgment against her as executrix, may have a devastavit fixed on her and her estate, and her personal or real estate sold on it. Her husband and she may bring an ejectment for her lands, and two verdicts and judgments will bind and bar her right for ever so if she is defendant. Her husband and she may, nay her husband alone, may have partition or valuation, under our intestate acts ; and her husband and she may be plaintiffs or defendants, in a writ of partition at common law, which under our Acts of Assembly may eventuate in a sale of the lands, and division of the money. In all these cases the husband can appoint an attorney at law for himself and wife, and she is bound, both during his life and after, except perhaps on proving actual fraud. A husband may submit to arbi- tration out of court, the rights of his wife, either as an individual or as executrix or administratrix, and she is bound. And I take it now, in this state, wherever a husband and wife can sue or be sued, by adversary process, an amicable action can be entered, and she and her rights are as much bound as if the pro- ceeding had been adversary. It is only in pals that her rights to land are not affected, except by a separate examination. In court no such thing is required. The affairs of this world require that disputes should be ended. The married women are interested. It is not true in fact that husbands wish to destroy the property or rights of their wives ; and we cannot act on that principle. In chancery, if a married woman is a trustee alone, or jointly with her husband, or with others, she must be brought in ; and as the chancellor decrees against each, according to their several faults, the decree affects her and her estate, or not, according as the jus- tice of the case requires. Cases have been cited making a difference between the decisionj at law and in chancery, as to a husband's liability ; and between his liability where he marries an executrix, and where she becomes so after marriage. A husband who marries a woman is liable in all actions, and t ajl demands during coverture, which could have been brough 356 SUPREME COURT [Lancaster [Gratz r. Phillips.] against her if sole ; whether they are against her as an individual or executrix, or trustee. If she was executrix before marriage, and she is not sued in his lifetime, the common law gave no remedy against his representatives ; for there must be first a suit against the executrix and judgment de bonis testatoris, before she would be fixed for a devastavit, and his representatives could not be sued as representatives of the testator. In such case, on a bill in equity, they did not hold his representatives liable in every case. If the goods were wasted before he married the executrix, his estate was not liable. If the devastavit was after marriage (as it must be if she was made executrix after, or might be if she had the goods when he married her), his estate was liable. For the law in such case gave him the control and management of them. And this is the real and substantial distinction, and the dicta in 3 Brown's Ch. 323, are mistakes of the reporter. The law was thus perfectly settled before 1776, and so settled since the case in 3 Brown, and as Brown is cited by every modern writer who turns compiler, and so is read, I refer to Adair v. Shaw, 1 Shoales & Le Froy 248, where all the old cases are collected, and the above conclusion drawn. If the goods were left in specie at the death of the husband, his representatives were not liable ; if laid out in lands or goods and left to the wife, she must answer for them, and if she was executrix and the goods were given away or released, and no benefit to him or her, his estate was liable in the first instance, ajul then hers, if she had any. The fiction of law that a wife has no understanding, and can do no wrong, has but a limited existence in chancery, where the mat- ter is considered, more according to the fact and the reality of the case. In this country a married woman cannot be imprisoned : If she has no estate of her own, a judgment against her and her hus- band cannot affect her more than a judgment against him. If she has an estate, and has acted in such a way as to make that estate, liable by adversary suit, in which her husband must and could em- ploy counsel for her, the same result may be produced by an amica- ble suit. This is not an application by her, to be relieved from a suit fraudulently entered by her husband in her name. The same counsel who signed the agreement for an amicable suit make the motion. Where one objection has been made as to form of action, it must be a very uncommon case in which I would listen to another, on a ground which existed before the time of the former. GIBSON, C. J. I join in granting a new trial, but for a reason common only to my brother Smith and myself; so that the judg- ment on this point, although conclusive between the parties, will May 1830.] OF PENNSYLVANIA. 357 [Gratz v. Phillips.] not be a precedent for future cases. The action is against the defendants in their own right ; and being for what was not a debt of the decedent, it could be brought against them in no other way. But a feme covert who, as such, can do no act nor incur any responsibility, can make no contract whatever. In actions to which she was liable at her marriage, arid for torts and trespasses during the coverture, she must be impleaded jointly with her husband, but that she cannot be impleaded on a contract made during the cover- ture, is as well established as any other fundamental principle of the common law: Palm. -313; Edwards v. Davis, 10 Johns. 281. Mr. Phillips would be exclusively chargeable for the receipts of his wife, which are in point of law his receipts, even though the money were paid into her hands as a trustee. It is on this principle alone, that a husband is chargeable for goods which have been received through the hands of his wife to his use. But the very case occurred in Grasser v. Eckart, 1 Binn. 575, where the wife was not allowed to be charged with her husband for money jointly had and received. If that case is to go for anything, it negatives the notion of a special usage in analogy to the practice of courts of chancery, and asserts the broad principle of the common law. What is there, then, to distinguish it from the case at bar ? With- out her assent, neither her husband nor her attorney could subject Mrs. Phillips to an action for what is not her proper debt. But what capacity had she to assent, or to become a willing party to the action, if she had no capacity to assent and became a party to the cause of action ? A joint promissory note would not have bound her. But if she may become a party to the action, she may doubtless still set up her original irresponsibility. By no means. She is again to be met by her agreement to waive objections on that and every other ground. The matter then comes to this, that although she is disabled by the common law from binding herself by contract, she is nevertheless able to subject herself to all the consequences of a contract, by volunteering as a defendant, and estopping herself by an agreement from asserting the original dis- ability which the law interposed for her protection ; and this, not- withstanding that such an agreement whether made by herself or some one on her behalf, is as much a contract as any which con- stitutes an original cause of action. As regards other important parts of the case, I have the misfor- tune to stand alone. Our difference of opinion in respect to these, is attributable, it seems to me, to that comparative disadvantage in obtaining a precise knowledge of the circumstances, which is always felt in a greater or less degree bv the judges who have not tried the cause, and particularly a cause like the present, the trans- actors of which are spread over a period of more than half a cen- tury. The paper-book is made up of condensed memoranda of the 858 SUPREME COURT [Lancaster [Gratz r. Phillips.] evidence, and without a laborious investigation of a mass of docu- ments which have not been furnished, it is unintelligible. It will therefore be necessary for me to develope the particular points, by separating and putting aside the facts and circumstances that do not immediately belong to them. It seems to be agreed that the record of the action of account- render, was incompetent evidence, in the aspect in which it was presented. But as it is intimated that it may be competent in some other aspect, it is 'necessary to consider the recovery in that action in all its bearings. It is conceded that it cannot be unra- velled here ; but an intimation is given that it may have been a breach of the covenant of indemnity, the fallacy of which is made apparent, simply by an exposition of the facts. Before his assignment to the Messrs. Gratz, Franks had as- signed his whole estate to trustees for payment of a particular debt; and when Mr. Simon executed the first declaration of trust in favor of Michael Gratz, it was on condition that the assignment under which the latter claimed, should not prove invalid. Most clearly the purpose of this condition was to secure Mr. Simon from being compelled to pay the proceeds of the lands twice to Gratz after having paid them to the trustees. The aim of Mr. Simon, who was a stakeholder, was to be secure in paying to the person entitled, all the moneys in his hands as the estate of Franks not protection from payment of a farthing which was not his own. Such was the nature of this condition, which, however, is no further important than as it serves to explain the covenant of indemnity which super- sedes it. After a recital of the premises of that covenant, that Gratz is entitled to the effects in the hands of Mr. Simon, but that these were claimed under the previous assignment to the trustees, and that Mr. Simon was unwilling to decide," follows a declaration that Mr. Simon "is willing to pay all the moneys and to assign and set over all the effects which are or were in the hands of the said David Franks, in his lifetime, or at the present time, to the said Simon Gratz on being indemnified or kept harmless by reason thereof." Accordingly Gratz covenants to indemnify him against the demand of the trustees "for any part of any money or effects, or other property belonging to the estate of David Franks in his (Simon's) hands, which shall be paid, secured to be paid, assigne 1 or set over to the said Simon Gratz," so that the said Joseph Simon shall not now, nor at any time hereafter, come to, or suffer any loss, damage, expense or trouble in or by reason of the prem- ises, or touching the moneys, effects or property so paid, assigned or set over to the said Simon Gratz." Thus the covenant is not that the trustees, or any one in their stead, may not recover any part of the estate of Franks, but only such part as shall have been paid or secured to be paid to Simon Gratz as the agent of his father, May 1830.] OF PENNSYLVANIA. 359 [Grutz v. Phillips.] under the subsequent assignment. If, then, Simon Gratz has riot recovered on the title of the trustees anything which had been pre- viously paid or secured to be paid to himself or his father, as the representative of Bernard and Michael Gratz, he has broken neither the letter nor the covenant, which forbids no assertion of the right of the trustees that might not involve Mr. Simon in the conse- quences of a mispaymerit. Now the proceeds of the George's Val- ley lands, which had not been included in any of the deeds of trust, had neither been paid nor secured to be paid to Michael or Simon Gratz, and if Mr. Simon's estate has been compelled to pay nowhere anything that was not due somewhere (and we are to suppose the recovery on account-render to have been just), what is the difference whether the recovery was under the one assignment or the other ? Or how can it be said that the recovery was not, in fact, on the assignment to Bernard and Michael Gratz ? Either assignment would pass the whole interest of Franks, and though in the order which accompanied the assignment to the Messrs. Gratz (which, by the bye, is not necessarily a part of the title), his interest in the mortgage is estimated at a moiety, yet if the estimate were errone- ous, it would not restrain the operation of the assignment or bind the rights of the parties under it. The same estimate is in Mr. Simon's declaration of trust of the ten tracts, and the same remark is applicable to it, that it was no part of the title in the action of account-render, which was brought for the proceeds, not of those ten tracts, but of the George's Valley lands, which had been con- veyed in part payment of the mortgage long previously. There is nothing, then, in the way of an intendment that the recovery was under the assignment to Bernard and Michael Gratz ; and it is cer- tainly no breach of the covenant that they have recovered on that or any other title, if sucli be the fact, more than the sum to which they were in justice entitled, especially as the excess is chargeable to the supineness of Mr. Simon's executors in omitting to file excep- tions to the report of the auditors in due season. Indeed, if we take for granted what is assumed in the opinion of the court, that the recovery was actually as surviving partner of Michael Gratz, it would follow demonstrably that it must have been on the assign- ment to the Messrs. Gratz, for the title of the trustees never vested in Bernard, who was dead when it was got in by Simon Gratz. But the fact is, that Michael brought the action in his own name and counted simply in his own right. But whether the recovery were on the one title or the other, it is sufficient that nothing is to be paid twice by the estate of Mr. Simon in consequence of it ; the contingency against which the covenant was intended to guard not having happened nor being about to happen. On what ground, then, can the record possibly be evidence ? It is said to be admissible to show that there was a former suit ; that 3GO SUPREME COURT [Lancaster [Gratz r. Phillips.] the plaintiff in that cause proved the tracts in the names of Coxe and Dunegan to be part of the Proctor lands, and that Mr. Simon was mistaken as to these and the George's Valley lands. I believe these are nearly the words. It is admitted, then, that the record is not evidence as any independent fact, but as inducement, and to what ? To the fact that the plaintiff proved, on the trial of the action of account-render, what no one has disputed here. That these two tracts are part of the Proctor lands was taken for granted by all parties throughout the course of the trial, the only question having been whether they had passed to Mr. Simon by the transfer of Spear's deed. The question of their identity with the Proctor lands was altogether foreign to the action of account-render, which had for its object the proceeds of the George's A r alley lands, which had. at different times, been conveyed to Mr. Simon, in part satis- faction of the partnership debt ; and whether these two tracts were part of any body of lands owned by Mr. Simon on his separate account, was no part of the inquiry. It was sufficient for Mr. Gratz not to claim the price of them, that they were not sold. Neither do I perceive how the record tended, either directly or aa an inducement, to show that Mr. Simon had confounded the Proc- tor and the George's Valley lands. The action was brought after his death, and neither depended on nor contributed to illustrate the state of his belief; and as inducement to evidence of mistake, it was superfluous, the defendants having been let into all their proofs of the fact without it. But the truth is, their aim was an indirect one not to make way for evidence of mistake, but to make the alleged mistake tdl if proved, by evidence, aliunde. It was to per- suade the jury that Simon Gratz had suffered his grandfather to die in ignorance of a fact material to his interest, and taken advantage of his own superior knowledge the moment he was gone. But the record was not offered in the aspect in which it is declared to have been competent ; and I therefore presume the new trial is granted exclusively for the admission of the defeasance executed by Mr. Levy. I must here take occasion to repeat what I said more than once at the argument, that this paper was admitted on other grounds than a supposed valid execution of it under a parol authority. It bears even date with the conveyance to Mr. Simon, to which it has reference, and was probably executed at the same time and place. Add to this that Mr. Simon was not only unlettered and dependent in these matters on the services of his friends, but it had appeared in the evidence that this form of execution had been used by him in another instance, in which Mr. Phillips, one of the defendants, executed a deed for him, in his presence, and as his attorney- On tli esc proofs I thought the instrument might go to the jury, leaving them to judge from the circumstances whether it had been exe- May 1830.] OF PENNSYLVANIA. 361 [Gratz v. Phillips.] cuted in Mr. Simon's presence and with his assent ; and if so found, it would, according to Shaub v. Withers, ante 275, be his immediate deed. But not to insist upon this, there is another, arid it seems to me an impregnable ground of competency which I suggested on the trial and at the argument, without having since heard it con tested. It is this : In addition to the circumstances just noted the conveyance to Mr. Simon was for the nominal consideration of 5#., being accompanied with the grantor's bond for the payment of a debt ; and this bond and conveyance had been preceded by another deed, in which an acknowledgment of the debt is coupled with a declaration that these very lands, among others, were to be con- veyed to Simon to secure it. Mr. Levy, who executed the defeas- ance as Mr. Simon's attorney, was his confidential agent in trans- acting his current business, signing in that capacity receipts and other important papers in Mr. Simon's name, who never testified dissatisfaction at any of his acts, but always on the contrary ratified them. Mr. Levy had, however, executed no other deed than the one in question. All this was proved by the testimony of Mr. Etting and Mr. Levy in a way to insure belief. Now, then, if a mortgage was intended, of which there cannot be rational doubt, and if a valid execution of the instrument was prevented by ignorance or mistake, what would a chancellor do ? Where an agreement for a mortgage was drawn by a mortgagee, who omitted to insert a covenant for redemption, the mortgagor, who was only a markman, was permitted to give evidence of the mistake : Joynes v. Slatham, 3 Atk. 389. Is not that the case at bar ? So where the mortgage was in two deeds, and the mortgagee omitted to execute the defeas- ance: Maxwell v. Montacute, Prec. Chan. 520; s. c. 1 Eq. Ca. Abr. 19, pi. 4, 5. The very case again. So also where an abso- lute deed was made, and the grantee, instead of taking the profits, took the interest of his money ; this was given in evidence as ex- plicative of the transaction : Id. If, then, a chancellor would not shut his eyes on any of the attendant circumstances he most surely would not shut them on the defectively executed defeasance of all others the most powerful to show not only ignorance and mistake, but the precise nature of the meditated terms of the forbearance. What has our own court done ? In Wharf i\ Howell, 5 Binn. 499, where the question of mortgage or not depended partly on parol evi- dence, the whole was left' to the jury as a matter of fact, particularly the testimony of the scrivener who had told the parties that the defeasance in connection with the absolute deed constituted a mort- gage. If, then, the jury should be of opinion that the parties proceeded on an impression that the defeasance executed by Mr. Levy constituted a mortgage at law, it shall be taken for such in equity. But how shall the jury judge of their impression, or the terms they had in view, without seeing the paper which contains 362 SUPREME COURT [Lancaster [Gtatz r. Phillips.] those terras. Of their actual intent, as deducible from the contem- plated defeasance in connection with the other circumstance, it is impossible to doubt. At a time when there was, as I have been told by the late Mr. Justice Yeates, who came to the bar in 1766, but seven country lawyers in the province, and consequently when every man was his own lawyer, it is by no means strange that these parties should have thought that a deed might be executed under a parol authority. My brother Huston himself has just said he would even now have thought so, too, had it not been for our recent decision in Shaub r. Withers. From another position in the opinion of the court I am constrained to dissent in explicit terms. Among the lands supposed to be bound by the mortgage, and by consequence actually bought in by Mr. Simon, are the two tracts in the names of Coxe and Dunegan. To rebut the claim of the plaintiffs to the price of these the defendants attempted to show that they were bought in and included in the deed of trust by mistake, being in fact Mr. Simon's own property under Trent's conveyance for Mr. Simon's separate debt. In refer- ence to this, it is said in the opinion of the court that if it be once proved to a jury that the whole proceeding as to these tracts was by mistake, then whether they belonged to Simon exclusively or to Trent's heirs, Simon Iciny but a mortgagee in either case the plain- tiffs have no claim to them. I admit here, and I so directed the jury at the trial, thai if Mr. Simon ignorantly declared a trust of his own land it would not bind him, and this whether the cestui que tru.it had shown the truth of the case on another occasion or not. And by the bye, nothing of the kind is pretended to have been shown in action of account-render. Take it, however, according to the other alternative, that Mr. Simon was but a mortgagee, and the facts connected with the presumption of payment from lapse of time will stand thus. On the bond which accompanied the conveyance in 176 ( J, there is endorsed a receipt for interest paid by a fresh bond in 1781. Again, in 1784 (not 1785, as assumed in the opin- ion of the court), Trent gave Mr. Simon another bond, but whether for principal or for interest due on the preceding or for any other consideration, as there is no other receipt endorsed in either of them, cannot be conjectured. Then from 1781 to the inception of this suit in 1822 is a period of forty-one years; or even from 1784 to 1822 is a period of thirty-eight years, during which no act was done or step taken by Mr. Simon, to obtain satisfaction of this debt. It is said he took possession of these lands arid treated them as his own. It must be within the recollection of every one who heard the trial, that not a spark of evidence was given to that effect, and that nothing of the sort was pretended. He, nor any of his repre- sentatives, lias ever to this day asserted a claim to these lands under the deed for his separate debt, either as a mortgage or as an un- May 1830.] OF PENNSYLVANIA. 363 [Gratz 0. Phillips.] conditional conveyance. On the contrary, the purchase of them under the partnership mortgage, was in direct disaffirmance of his supposed title to them on his separate account. What act has he done, then, in assertion of this particular claim, or what is there to account for his having done nothing? It is idle to assign Trent's poverty as a reason for the delay, when these very lands might have been got if the debt had not been paid. If, then, this convey- ance was originally a mortgage, of which there is no room to doubt, the presumption of payment from lapse of time is overwhelming, and if, as is neither impossible nor improbable, these tracts were included in the partnership mortgage also, then there is nothing in the case to distinguish them from the others. Take it, however, that they were not so included, and we have the case of lands pur- chased on joint account, by one of two joint mortgagees, and sold by him, after having executed a deed of trust to his companion, from whom he detains his share of the price on the pretext that as the land was, in fact, not included in the mortgage, neither has a title. This would be a strange defence. Having purchased at their joint risk, they are jointly entitled to the profit, and that too, inde- pendently of any declaration of trust. What if the sheriff had sold to a stranger ? lie could not have set up want of consideration as a defence ; and either mortgagee could have ruled the money into court and taken his share of it. But the land itself, being taken in lieu of the price of it, is to be treated as money and subjected to the same rights. Had the defendants sold with general warranty, they would have been entitled to retain till they should be secured to the amount of their share of the risk from eviction, but no war- ranty is pretended ; moreover, the title of Trent's heirs is barred by the Statute of Limitations. There are, beside these, some other shades of difference between my view of the cause and that taken by the court ; but what I have said sufficiently indicates my reasons for thinking the verdict right on the merits. SMITH, J., concurred with the chief justice in regard to the lia- bility of Mrs. Phillips ; and with HUSTON, J., as to the merits. Ross, J., concurred with HUSTON, J. ROGERS, J., did not sit in the cause, having been of counsel with the defendants. Judgment set aside and a new trial ordered. Commented on, 1 Wh. 51U. 364 SUPREME COURT [Lancaster Johnston against Brackbill. IN ERROR. Where the issued joined was on the plea of a submission and an award, and the submission was general " of and concerning the differences depend- ing between" the parties ; an award setting forth that the arbitrators had examined (heir several books of account, and taken into consideration a judg- ment bond to the plaintiff from the defendant, and finding a particular sum due to the former on that bond, without determining how much, or whether anything was due on the other subjects of difference submitted to or exam- ined by them, is not final, and therefore it is bad. Where issue is joined on this plea, evidence of mistake and inadvertence in the arbitrators in making the award is made inadmissible. But where euch evidence is received under this plea, and the award is a nullity, the court will not reverse for the admission of such evidence. Where it appears by a calculation, that the jury did not allow credits, of which incompetent evidence was given, the judgment will not be reversed on a bill of exception to such evidence. UPON a writ of error to the Court of Common Pleas of Lan- caster county, the case was thus : Henry Brackbill, to April Term 1817, issued a scire facias to revive a judgment which he had obtained against Richard Johnston, the plaintiff in error, to January Term 1812. On the 24th December 1824, the defendant, Johnston, put in this plea: "payment, under which he intends to give in evidence the award of referees, mutually chosen by the parties, by which all matters in this suit were settled;" the plaintiff replied, "non sol- vit" and issue was joined thereon. And now, August 23d 1815, the cause being reached, and before the jury was called, the defendant offered to add the plea of a sub- mission of the cause of action, in this case, to arbitrators, and an award made in pursuance thereof; which the plaintiff objected to, and prayed the court to direct the plea so offered to be drawn up in form, which is accordingly done, arid the counsel for the defendant moves that the same be added, which motion was objected to, and on argument allowed. The defendant then pleaded that the plaintiff and defendant on the 22d day of March 1821, submitted themselves, under the pen- alty of $2000 each, to stand to the award of David Witmer, John Hamilton and George Hoffman, "of and concerning the differences then in controversy between them," and that the said arbitrators, on the 30th April 1831, awarded, "of and concerning the prem- ises," a balance of $1318.04, from the said Richard to the said May 1830.] OF PENNSYLVANIA. 365 [Johnston v. Brackbill.] Henry, "to be due upon the judgment-bond which the said Richard had given to the said Henry ;" and the defendant averred that the bond on which the original judgment was entered was the same bond, and that he had been, and still is willing to stand to and abide the said award. To this plea the plaintiff' replied, that said arbitrators "did not make any such award of and concerning the said premises, in manner and form as the said Richard had in his plea alleged." These pleadings were formally drawn out arid entered. The cause being at issue, and the jury sworn, the plaintiffs hav- ing shown the original judgment rested ; the defendant then gave in evidence the submission and award set forth in his plea. The submission was in these words : "Whereas, differences have arisen between Henry Brackbill and Richard Johnston, which are this day referred amicably by us unto David Witmer, John Hamilton and George Hoffman, we the said parties do hereby bind ourselves, our heirs, executors and adminis- trators, each unto the other, his heirs, executors and adminis- trators or assigns, in the penal sum of $2000, lawful money of the United States, that we will stand to the award or settlement that the said arbitrators shall make out under their hands." The award was as follows : " We the undersigned arbitrators amicably 'appointed by Henry Brackbill and Richard Johnston, to settle all matters in variance between the said parties do report, that after hearing the parties, examining their several book-accounts, and also taking a judgment- bond from said Johnston to Brackbill into consideration, we find a balance of $1318.04 due from Johnston to Brackbill on said bond." The defendant having given this submission and award in evi- dence, the plaintiff offered to prove, that on the 1st June 1815, he entered as surety of Richard Johnston the defendant, into a certain bond with him to John Neflf, for the payment of $120 with interest. And also, on the same day that he entered into another bond to John Neff, with the said Johnston as surety for said Richard, for the payment of a like sum, which said sums with their interest, lie the plaintiff, had to pay, and did pay to the said Neft', in discharge of the said bonds, on the default of payment by the said Richard, before the said submission and award; and that although it was admitted by the said Richard, before the said referees, that said Henry had paid the said moneys for him, by inadvertence and mis- take, the said sums were not credited to the said Henry in the said award ; which was not known to him till after the said award was made, which testimony was objected to by the defendant and received by the court, and a bill of exceptions sealed. The defendant's counsel requested the court to charge the jury, "that the submission and award were a bar to the recovery of the plaintiff' in the present action." 366 SUPREME COURT [Lancaster [Johnston r. Brackbill.] The court charged the jury, that the defendant had given no other evidence of payment than that which was proved by this award, and to the amount of the sum credited by the referees, the defendant was entitled to a credit. u But the plaintiff has proved that he, as surety of Richard Johnston, joined with him in two bonds to John Neff, each for the sum of $1-0, the amount of which two bonds he, Henry Brackbill. settled with Neff; and it was offered to be proved that it was admitted by the said Richard before the referees, that Brackbill had paid the said moneys for him, and that by inadvertence and mistake, the said sums were not credited to Brackbill in the award, which was not known to him till after the award was made. The question of fact for you to determine is has this matter been proved. If it has been clearly made out, you will make the allowance claimed, but if it should appear to you, that Brackbill had an opportunity of proving the fact of these paynients before these referees, and neglected it if it does not clearly appear to you that the payment was expressly admitted by Johnston and and if it does appear that there was a mistake or inadvertence on on the part of the referees ; and that the award was made on the ground of want of proof of payment of the bonds ; then Brackbill is bound by it, and he cannot have from you the allowance he claims in this action." The court also charged the jury that the submission and an award were no bar to the plaintiff's recovery to the present action. Upon this charge the court sealed a bill of exceptions. The jury found for the plaintiff, $1659.40. By a calculation now made, this was ascertained to be the amount of the award with interest. The plaintiff in error assigned for errtfrs : 1st. The admission of the evidence contained in the first bill of exceptions. 2(1. That the court below should have answered the point sub- mitted to them by the counsel of the plaintiff in error, in his favor. 3d. That the court erred in instructing the jury, that if the facts were clearly proved, they should make the allowance claimed in consequence of the alleged mistake of the arbitrators, in not crediting the amount of the two bonds paid by Brackbill to Neff, in which he was surety for Johnston. Porter, for the plaintiff in error, contended that the issue was on the plea of nul tiel record, and the evidence offered and received, was to prove a mistake in making it, and a plain departure from the issue : 1 Saund. 327, note 1 ; 2 Id. 84, b. and c. ; Kidd on Awards 381 ; Williams v. Paschall, 3 Yeates 564. On the plea of non assumpsit, to an action founded on the award of arbitrators, without notice of special matter, the defendant can- May 1830.] OF PENNSYLVANIA. 3G7 [Johnston v Brackbill.J not give mistake of the arbitrators in evidence : Taylor v. Coryell, 12 S. & R. 243. Second error. The award is a bar to the plaintiff and his only remedy is upon the agreement of submission : 1 Phil. Ev. [305,] [242]; Kidd on Awards 381. Third error. The award is conclusive upon the parties : 1 Phil. Ev. [73,] 305, 306 ; Underbill v. Van Courtland, 2 Johns. Ch. 339 ; Todd v. Barlow, 3 Johns. R. 367. To avoid it, there must be either fraud in the party or misconduct in the arbitrators, which must be specially pleaded, or a notice of it given under a general plea : Davis v. Ilavard, 15 S. & R. 165 ; Taylor v. Coryell, 12 Id. 243. Jenkins and Hopkins, for the defendants in error. The verdict by calculation is ascertained to be the amount of the award with interest. This the plaintiff in error admits to be due, and why, therefore, reverse the judgment. The admission of the evidence then is without prejudice to the plaintiff in error, and if there were error in it, this court will not reverse for an error, which has done the party alleging it no injury : Collins v. Rush, 7 S. & II. 147 ; Allen t>. Rostain, 11 Id. 372-3; Brady v. Calhoun, 1 P. & AV. 140, and the court will look through the whole record to ascertain if any injury has resulted to the party from such error. The plea was improperly received, and therefore cannot affect the argument. The award was made in 1821, and the plea not put in until 1825, on the trial, and against the consent of the plaintiff. The plea was a plea puis darien continuance, and ought not to have been received out of time. It is here a plea without merits, and besides being out of time, it could not be put in without the payment of all costs. up to the time it is put in ; for it admits that all was right on the part of the plain- tiff up to that time : Ilostetter v. Kaufman, 21 S. fe R. 146. But the lien of the plaintiff's judgment, and the judgment itself could not be destroyed by the award, without going farther, and proving satisfaction. The award was no bar, for two reasons : First. Because it was made on a plain mistake. Second. It was not an award in this action. At law an award is conclusive, but in equity it is open to show fraud or mistake. We could not give notice of our ground of re- sistance of the award for it was not pleaded until the trial : and be- sides, such notice is required from the defendant, and never from the plaintiff. But, it is no award in this action ; the submission does not state any action. It referred to "differences which had arisen ;" but this judgment was not a difference. It had been ascertained at law, and the payments upon it Arere but a reduction of that sum. 3G8 SUPREME COURT [Lancaster [Johnston v. Brackbill.] The award, they contended, was not in this collateral way a legal defence, it was a mere equitable defence, of which the defendant had the full benefit. Buchanan, for the plaintiff in error, in reply. The question is not whether 31300 are due to the plaintiff or not, but whether, after a party has submitted his cause of action to arbitrators, he can, when an award has been made on the submission, proceed on the original cause of action. He denied that the plaintiff haii an election to proceed on the judgment, or on the submission. His remedy is alone on the submission, and the award is the evidence of the extent of his claim ; and a court of equity would enjoin him from proceeding on a judgment, if that was his cause of action, or if he brought suit on the original cause of action, he would be barred upon the plea of the award ; as that cause of action is wholly ex- tinguished by the award. The plea was properly put in, although that is not an open ques- tion here. It is not a p\e& puis darrien continuance, but a plea to the further maintenance of the action. The latter is put in where something has occurred after suit brought, but before issue joined, upon which the defendant wishes to rely ; the former on something occurring after issue joined. The first plea put in by the defend- ant was a plea of payment, with a notice of his reliance upon the award, and the plea put in on the trial was putting into form that which had been before informally pleaded. The evidence received was clearly inadmissible. The issue joined was award or no award ; and under this issue it was manifestly in- competent to prove that the award was made by mistake. If the award were made by mistake this may be shown, but it must be specially pleaded. But it is said that no injury was done by this evidence, and to prove this, what is called arithmetical progression is resorted to, to show that the amount of the verdict consists with the evidence, in- dependent of this testimony. It is not denied that the court will not reverse for error, where it is plain no injury was done. But adopt the principle that you may go into the jury box, and by calculation ascertain upon what they decided, and you are at once at sea without a compass ; and the sacred rules of the common law will be lost in a maze of conjecture as to what influenced the decision of the jury. The opinion of the court was delivered by GIBSON, C. J. The plaintiff having joined issue on the plea of a submission and an award, will fail if the award shown be valid. The defendant relies on strict rules of pleading, without regard to the obvious justice of the case, and is therefore to be held to strict rules of law. The submission was general, " of and concerning the May 1830.] OF PENNSYLVANIA. 369 [Johnston r. Blackbill.] differences then depending between them ;" not of all matters in controversy between them in this or any other action. The award sets forth, that after hearing the parties, examining their several books of account, and taking into consideration a judgment-bond to the plaintiff from the defendant, the arbitrators find a particular sum due to the former on that bond, without determining how much, or whether anything were due on the other subjects of difference submitted to, or examined by them. We may conjecture with a probable degree of certainty, that the sum awarded is the general balance ; but that is not a necessary or even a natural conclusion. Else why refer it to this particular item of charge ? The submis- sion was not of the particular bond, but of the differences between the parties, and it seems from the introduction of their books of account, they had several. Now there is no severer rule than, that an award must be not only conveniently certain and mutual, but so final as to terminate all the differences submitted. I admit that this rule is relaxed here in some respects ; but we must remember that we are here on rules of pleading, which require greater cer- tainty than is necessary by our ordinary practice. Had the arbi- trators awarded a general balance, we would be bound to suppose they had determined all the difference in controversy, and their aw-ird would have been mutual, final and reasonably certain. But they have eluded this conclusion by specially awarding the balance of a particular item, without saying anything of the rest ; so that being bad in this respect they have made no award at all. It may be alleged that the defect, if any, appears on the face of the plea, and that the plaintiff ought therefore to have demurred. But it does not appear by the award pleaded, that more than one subject of difference was laid before the arbitrators, so that it would be im- possible to say all had not been decided ; while by the award given in evidence, it appears there were several. The evidence there- fore did not support the plea. The award having been given in evidence, the plaintiff was allowed to prove that certain credits to which he supposed himself entitled, had been omitted by an oversight; and the court charged that an error by mere inadvertence of the arbitrators might still be corrected. Had the award been conclusive, there would have been error in the admission of the evidence, and the direction consequent on it. But it is not easy to see how a vicious award should have ;i controlling influence on the evidence under the plea of payment. But, putting that matter aside, it appears from the verdict itself, which is exactly for the sum awarded, with the intervening interest, that those credits were in fact rejected. It is said we cannot follow incompetent evidence, or a misdirection into the jury-box to ascer- tain its operation. The law is clearly otherwise. In Preston i'. Harvey, 2 Hen. & Munf. 55, and NVolverton v. Commonwealth, 7 S. & 11. 1273, an error in the admission of incompetent evidence 1 P. & W. 24 370 SUPREME COURT [Lancaster [Johnston v. Brackbill.] was held to be cured by conclusive proof of the fact, on the ground that the previous evidence could not have had an influence on the verdict. So in Faulcon v. Harris, 2 Hen. & Munf. 550, the ad mission of incompetent evidence which appeared by the verdict to have been inoperative, was held to be immaterial. And in Camp- bell's Executors v. Colhoun's Administrators, ante, 140, it was held that a misdirection in point of law might be cured by a finding on a distinct ground of fact to which the rule laid down was inappli- cable. The principle stated by the chief justice, in Allen v. Ros- tain, 11 S. & R. 374, is founded in justice as well as authority. Our business is not with abstract principles, but injuries from the application of them. As therefore the error of the court in at- tempting to supply omissions in the award, did not vary the result, the judgment is unimpeachable. Judgment affirmed. Referred to, 17 Smith 299. Followed, 6 Wh. 302 ; 5 H. 523 ; 7 C. 501. May 1830.] OF PENNSYLVANIA. 371 Johnson agaimt Matson. Where under proceedings in partition in the Orphans' Court to divide the lands of S. the same was appraised and taken by M., who had married one of the children of S., and who acknowledged recognisances to the other chil- dren for their skares; the wife of M. can claim nothing against her hushand or a purchaser of his estate, but the undivided share which descended to her, and which remains specifically in land after all the purposes of distribution have been answered. THIS was an ejectment, brought in the District Court of York county, by the defendant in error, to recover from James Johnson one hundred and ninety-six acres of land. The facts were as follows : James Sinclair, the father of Mary Matson, died in 1807, seised in fee of two tracts of land, one of one hundred and ninety-three acres, the other the land in dispute. He left seven children (of whom the plaintiff is one), and the children of a deceased child. In 1811 application was made to the Orphans' Court to divide these two tracts amongst the children of Sinclair, agreeably to the intes- tate laws, and in pursuance thereof the tract of one hundred and ninety-three acres was valued at $3200, and was decreed by the said court to the eldest son, who gave security to the other heirs for their distributive shares. The tract of one hundred and ninety-six acres, the land in dispute, was valued at $1127, and was decreed to Adley Matson, who had intermarried with the plaintiff, he entering into a recognisance to secure to each heir $140.50, the sum they were severally entitled to. In 1813 Shenberger obtained judgment against Adley Matson, on which the land decreed to him was sold by the sheriff to the defendant Johnson, for $450, and a deed acknowledged January 1816. At the time of the sale, Johnson, the purchaser, held three judgments against Matson, amounting to $650. Matson died in December 1826. The court charged that the plaintiff was entitled to recover the whole tract, and recommended a verdict accordingly. Verdict and judgment for the plaintiff. Lewis and Bamitz, for plaintiff in error. The Orphans' Court had no power to concentrate the interest of the wife, but that inte- rest remained in the land, unaffected by the decree of the Orphans' Court vesting the estate of her father in her husband under the intestate law. The estate in one tract was decreed to him by the court, and it is only as to one-eighth part (her proportion), they take by descent, but of the other seven-eighths the husband was the 372 SUPREME COURT [Lancaster [Johnson v. Matron.] purchaser, when he entered into a recognisance to secure the shares of the other children. As to her interest in the other tract, that by the decree of the Orphans' Court was converted into personalty. All these facts being set forth in the records of the court, through which the title to the land sold was made, the plaintiff' in error, who was the purchaser, was necessarily cognisant of them. The court below gave judgment against the defendant for the whole of the land purchased, which was more than the wife would be entitled to, out of all the real estate of her father, the larger portion of which had been converted into personalty, and the right thereto clearly vested in the husband : Kean v. Ridgway, 16 S. & R. GO ; Stoolfoos i'. Jenkins, 8 Id. 175 ; Smith v. Scudder, 11 Id. 325. Evam, contra. Mary Matson, the plaintiff, claimed the whole tract, on the ground that her husband took in her right. The pay- ing, or securing to be paid, the shares of the other children, could not entitle him to the fee-simple of the estate. He was a trustee for the wife in whom the fee-simple vested, and his interest was but a life-estate. If, then, he be received as a trustee to take the estate in trust for his wife, he would be a trustee to bind the same in fee- simple by a recognisance in favor of the other heirs ; that in this case Adley Matson took in right of his wife, and as it appeared of record, Johnson, the purchaser at sheriff's sale, had notice of it : Blocker v. Cormony, 1 S. & R. 460 ; Fogelsonger v. Somerville, 6 Id. 167 ; Stoolfoos v. Jenkins, 8 Id. 175. The opinion of the court was delivered by GIBSON, C. J. The principles of this case have been already settled on terms so explicit as to occasion surprise at finding them misapprehended in the court below. A wife can claim nothing against her husband or a purchaser of his estate, but the undivided share which descended to her, and which remains specifically in land, after all the purposes of distribution have been answered. Here she was permitted to recover all the land that was accepted by her husband at the valuation, because, as it was said, he hud paid nothing for it, and was entitled to nothing more than his courtesy initiate, which determined at his death. But he acknowl- edged recognisances to the other children, which, if not paid, may yet be recovered of his estate or of the land in the hands of the de- feiidant. Even should their interest not be divested, what right can that give the plaintiff to anything beyond her own share? In Kean v. Ridgway, 16 S. & R. 60, it was held that her portion of the whole estate is not concentrated in a particular part accepted by the husband; and there is no reason why it should be thus con- centrated where her whole portion has not been taken specifically in land. The doubt sometimes expressed of the principle of Yohe v. Harriet seems to me to be without due consideration. Why should May 1830.] OF PENNSYLVANIA. 373 [Johnson v. Matson.] the price of a wife's land be exempt from her husband's marital rights where transmutation has been the necessary consequence of a process of distribution ? l Equity insists on a provision for the wife, not in consequence of any imperfection in the husband's title to her personal estate, but as the price of its interposition in his favor. But where, as in the case of a recognisance to the wife, her money may be reached by an action at law, no chancellor would pretend that he is not both in equity arid at law, the absolute owner of it ; and to treat it as land, or follow it into land purchased with it, for the purpose of establishing a resulting trust in favor of the wife, would introduce an equity hitherto unknown to the English or the American courts. But even were there rgom to doubt the propriety of that decision on the ground of any admitted principle of equity, it has since entered into such a countless number of estates as a rule of property as to render the mischief that would be produced by disturbing it now incalculable. In the case at bar, therefore, the plaintiff is entitled to recover only her purpart in the part taken by her husband as it descended to her. Judgment reversed, and a venire de novo awarded. Referred to, 7 B:vrr 50 ; 6 Smith 159. Followed, in Snevily v. Wagner, 8 Barr 396. Richwine against Heim. IN ERROR. An assignment by a husband, under the insolvent laws, of his wife's choses in action, defeats her right of survivorship, in case he dies before they are reduced into possession. THIS case came before the court on a writ of error to the District Court of York county, where judgment had been rendered for the defendant in error on the following facts : The father of the plaintiff by his will, proved in 1787, bequeathed to her certain sums of money which he left as a charge on his real estate (part whereof now belongs to the defendant), and which were made payable to her at successive intervals of seven years, the last of which became due on the 7th March 1827. In June 171*0, she married John Richwine, who afterwards, in 179(j, took the benefit of the insolvent laws, and assigned all his estate, real and personal, to trustees for the benefit of his creditors. The assignment em- braced not only what was set out in the schedule annexed to his petition, but also all other estate that he was possessed of or entitled to in right of his wife or otherwise. In \^'1'1 Richwine died, at 1 See 29 March 183U, 48 P. L. 1>05 and 11 April 1S4S, $6 P. L. 536. 374 SUPREME COURT [Lancaster [Richwine r. Heim.] which time his trustees had received all the instalments due on the land hut that of March 1827, to recover which when it fell due suit was brought by his wife. Evans, for the plaintiff in error. The husband of the plaintiff having assigned under the insolvent laws, we contend that the legacy to the wife not reduced into possession survived to her : Ham. Eq. Dig. 203, 11 ; 2 Madd. Chan. 16 ; Hartman v. Doudel, 1 Rawle 279. The assignment of an insolvent reserves a reversion- ary interest, and is not absolute' but in the nature of a security. Choses in action of the wife not being reduced into possession in the life of the husband survive to her ; and the assignment of them merely vests in the assignee the same right the husband had, and subject to the like contingency of surviving to the wife. We do not claim for the payments made before the husband's death. Barnitz, for the defendant in error. The plaintiff below claimed the payments made in the lifetime of the husband. The cases re- ferred to in England are under the Statute of Bankruptcy in a system sui generis. In the earlier cases they held there that bank- ruptcy took away survivorship, but this was afterwards doubted. There, too, the principle prevails when chancery has possession of a fund for that court to require a provision for the wife when appli- cation is made for that fnnd. Here no such jurisdiction exists. But this assignment is under an Act of Assembly which requires every possible interest to be assigned. The husband may assign a possibility for a valuable consideration, and this excludes the right of survivorship. In the case of Hartman v. Doudel, the assign- ment was as a collateral security. That case decides that the hus- band may .assign the choses in action of his wife for a valuable consideration and bar her right of survivorship, but that a volun- tary assignment would not have that effect. Here, however, the assignment was absolute and for the payment of debts, which is a valuable consideration, and not as a collateral security. Letvis, in reply. The words of the assignment in this case if they go beyond the law are inoperative. The Act of Assembly requires that he should assign his estate. What is his estate ? His interest in this chose in action was a particular interest subject to the right of survivorship, and so it must be assigned. An assign- ment is a strict legal right, and derives no aid in England from any principle in equity. The case comes precisely within the principle in Hartman v. Doudel. The assignment was collateral to the debt which remained, and the creditors were not even parties to it. The right to imprison is collateral to the debt. And where as assign- ment is collateral to the debt, the wife's right of survivorship is not defeated : Hartman v. Doudel, 1 Rawle 279. May 1830.] OF PENNSYLVANIA. 375 [Richwine v. Heim.] The opinion of the court was delivered by SMITH, J. (who after recapitulating the facts, continued). The assignment was made in pursuance of the Act of the 14th of Feb- ruary 1730, entitled " An act for the relief of insolvent debtors within the province of Pennsylvania :" 1 Sm. Laws 181. Had the husband assigned to the two creditors, who are named as his trus- tees, all his estate, in discharge of their particular debts, there would be no doubt of their right to the money in question. It would be a perversion of justice, then, to say that his assignment to them in trust for the benefit of all his creditors, an assignment without preference, is not equally effectual in securing the amount to them all. If the assignment had been made without regard to the Act of Assembly, it would have passed the absolute right to this money ; and as there is nothing in the act but what strengthens rather than diminishes the consideration, we are of opinion that the plaintiff's right of survivorship is defeated. The observations in the case of Lodge v. Hamilton, 2 S. & R. 491, strongly fortify this conclusion. The judgment of the District Court must be affirmed. Judgment affirmed. Referred to, 4 R. 481. Commented on and distinguished, 10 Barr 434 ; 1 II. 563, 564. Followed, 7 W. & S. 169; See April llth 1848, 6, P. L. 536. Tyson et al. against Pollock. IN ERROR. A. & Co. and B. & Co. contracted jointly to purchase from C. a quantity of wheat, for which they were to give the notes of certain banks, which were specified. A part of the wheat was delivered to A. & Co. and a part to B. th September 1821, deed, Charles Kinsey to Joseph Ingham. Ethan Baldwin, Esq., was then called as a witness by the plain- tiff, to testify, that an erasure, which appeared in the deed of 19th July 1819, of Ingham to Kinsey, was made before its execution ; and upon his cross-examination, said, in substance, that that deed was made for the purpose of giving to Charles Kinsey, who was then a citizen of New Jersey, color of title to the lot in dispute, so as to enable him to maintain an ejectment in the Circuit Court of (389) 390 SUPREME COURT [Sunfary [Ingham v. Crary.] the United States. The defendants then proposed to ask the wit- ness whether he did not then receive directions to bring a suit in that court, and what he did in pursuance of those directions. To which the plaintiff objected, and they could not prove the existence of a suit by parol ; the court overruled the objection, and sealed a bill of exceptions at the request of the plaintiff. The witness then, in substance said, that he had brought an ejectment in the Circuit Court in the name of Charles Kinsey, for the lot in controversy. The defendants then offered in evidence, a certified copy of the "docket entries" of the suit brought in the Circuit Court of the United States, for the same lot, to October session 1819. To which the plaintiff objected, that it did not purport to be an entire copy of the record. The objection was overruled and the paper admitted, to which the plaintiff excepted. The defendants then offered and stated the testimony of Jesse Fell, to which the plaintiff objected, but the court admitted the evi- dence, and sealed a bill at the request of plaintiff. The witness then said: "Mrs. Ingham, the wife of Jonas Ingham, about 1804, called on me, and said that she had a legacy left her, which she wished to lay out for her daughter, Mrs. Perry, and applied to me to buy the lot in dispute. We agreed upon the price, 200/., and the deed was to be made whenever a release of the lot could be obtained from a certain mortgage upon it and other lots. The release was obtained. Jonas Ingham was not present when the agreement was made with Mrs. Ingram ; but he and I executed the agreement some time afterwards, according to the terms which she and I made. It was to be purchased for Mrs. Perry. The purchase-money was paid with the money of Mrs. Ingham, by the hand of Benjamin Perry, the husband of Mrs. Perry. I had expected the deed was to be made to Mr. Perry or his wife. Jonas Ingham brought to me the release from the mortgage; I then asked him in whose name the deed was to be made, he said in his own name ; he did not say then it was for Mrs. Perry, but he did say that Perry was trading pretty largely, and he did not? know how things might turn out, or something to this effect. Perry had his goods in the shop on the lot when the deed was made by me to Jonas Ingham ; he then made a kitchen of the shop and built the house which is now on the lot ; I cannot say whose money he built it with. Jonas Ingham and his family were down while Perry was building." Being cross-examined, he said, " It seems to me that both Mr. and Mrs. Ingham were present when the deed was exe- cuted. I do not know that I ever heard Ingham say that it was for his daughter, or where the money was to come from. Perry lived in the house on the lot, about ten years after it was bought; he lived there until it was sold by the sheriff as his property, to Beach, and afterwards for some time." June 1830.] OF PENNSYLVANIA. 391 [Ingham . Crary.] Other testimony was then given by the defendants, which was in substance, that in 1807, Perry built the house on the lot now in dispute; that it cost from $1500 to $3000. They then exhibited the record of two judgments against Perry ; the first for about $2000, and the other for about $2500 both of which Beach had paid in consequence of a liability so to do, and the judgments were assigned to him. On the first judgment a fi. fa. issued, which was levied on this house and lot, which was condemned, arid subse- quently sold by the sheriff to Nathan Beach, the defendant, for $1481. Sheriff's deed dated 3d April 1813. The plaintiff then gave in evidence the deed of release, before spoken of, of this lot from the mortgage, which was to Jonas Ing- ham ; and the receipt for the consideration by the releasor was '"received of J. Ingham, per Benj'n Perry," &c. The court (Scott, president,) charged the jury as follows: " The certificate of the clerk of the Circuit Court of the United States produced in evidence on the part of the defendants was not evidence of the pendency of a suit for the lot in question in that court at the time this suit was instituted. " The plaintiff on his part has shown a legal title to the land in question ; but the defendants resist a recovery, and claim title under Benjamin Perry, as whose property the lot was sold, and who, they allege, was the equitable owner. If the jury believe from the evidence that the land in question was a gift to Perry, by Jonas Ingham the father of Perry's wife ; that Perry was in possession at the time, or went into possession in pursuance of such gift, and made valuable improvements thereon, and continued in possession up to and after the sale to Beach, the defendants cannot now be disturbed ; their title must prevail. It has long since been settled in Pennsylvania, that a gift of land, accompanied by possession, and by the donees making valuable improvemente thereon, was valid. As to notice of Perry's equitable title, the law is, that one who pur- chases a legal estate, without notice of an equitable interest, takes it discharged of the equity. Notice of an equitable title may be actual or legal ; actual notice is where notice in fact has boon given ; legal notice is where from circumstances there is a violent presumption of actual notice. A clear, unequivocal and undis- turbed possession by the equitable owner, is notice to all the world of his claim. A judgment against the equitable owner, whilsi so in possession, a fi. fa., levy, condemnation and sale thereon, and the sheriff's deed and acknowledgment thereof to the purchaser, amounts to legal notice." To which opinion the plaintiff's counsel excepted, and the court sealed a bill. Conyngham and Willetson, for plaintiff in error. The evidence contained in the first bill of exceptions was, in substance, par,.l 392 SUPREME COURT [Sunbury [Ingham r. Crary.] proof of the existence of a record which was error : Vanhorn v. Frick, 3 S. & R. 282. It was not the best evidence of the fact ; the record itself was better. Second bill. The docket-entries of the suit in the Circuit Court were but a part of the record. The record does not purport to be entire, the admission of which in evidence was clearly error : Vin- cent v. Huff, 4 S. & R. 300 ; 2 Saund. Plead, and Ev. 17 ; Whart. Dig. 223, Nos. 13, 14; Edmiston v. Schwartz, 13 S. & R. 135; Christine v. Whitehill, 16 Id. 106 ; Ferguson v. Harwood, 7 Cranch 410. When illegal evidence is admitted the error will not be cured by the direction of the court to the jury to disregard it : Shaeffer v. Kreitzer, 6 Binn. 430 ; Nash v. Gilkeson, 5 S. & R. 352. Third bill. The declarations of a wife should not be received in evidence to affect the rights of her husband : 1 Phil. Ev. 64 ; 1 Bac. Ab. 497, tit. Bti,ron and Feme; Webster v. McGennis, 5 Binn. 235. But the evidence should not have been received for another reason ; that all previous conversations and bargainings on the subject were consummated by and merged in the deed : Cozens v. Stevenson, 5 S. & R. 422 ; Heagy v. Umberger, 10 Id. 342 ; Christine v. Whitehill, 16 Id. 106 ; Collam v. Mocker, 1 Rawle 108 ; Me Williams v. Martin, 12 S. & R. 269 ; Whart. Dig. 580, No. 10 ; Brown v. Dysinger, 1 Rawle 412. The court assumed the fact of a parol gift by Ingham to his son- in-law, or to his daughter, which there was no evidence to support. He never intended to give the lot to Perry, and the charge of the court should have been to this effect : Meth. Epis. Church v. Jaques, 1 Johns. Ch. 450 ; Lancaster v. Dolan, 1 Rawle 231. The purchaser of a legal title is not affected by an equity of which he has not direct, express and positive notice : Scott v. Gallagher, 14 S. & R. 333. Mallary and G-reenough, for defendant in error. The parol evi- dence mentioned in the first bill of exceptions was not offered for the purpose of proving the existence of a suit in the Circuit Court, but to show the real transaction with Kinsey, and that he had no real interest in the title, which was made to him mala fide, as a citi- zen of another state, in order to give jurisdiction to that court ; and this, to meet the allegation of the plaintiff, that he was an innocent purchaser of the legal title without notice of the equity of Perry. The record does not show the object for which the copy of the docket-entries was offered ; if therefore it was competent for any purpose, there is no error in its admission. It was offered and received in the midst of the testimony of the witness, who detailed the facts in relation to the execution and delivery of the deed to Kinsey, and while the witness was speaking of the object for June 1830.] OF PENNSYLVANIA. 393 [Ingham v. Crary.] which that deed was given ; it was therefore competent to show the date of that transaction, for a transcript is sometimes evi- dence for a particular purpose : Eisenhart v. Slayinaker, 14 S. & R. 153. But after all the evidence was given, and the aspect in which the cause went to the jury, there is 'no point of view in which it can be considered that the plaintiff was at all prejudiced by that evidence; and if so, this court will not reverse the ju. Ellis, 2 Johns. Ch. 137 ; Burrows v. McWhann, 1 Dessaussure's Ch. Rep. 409 ; 3 Har. & McIIen. 254 ; Ranch v. Becker, 12 S. & R. 412; Bachelder v. Fisk, 17 Mass. 4G4. But at all events there can be no substitution until the whole debt is paid ; no one can take the place of the bank until it is first satisfied. Potter, for defendant in error. The bank having obtained a judgment against the principal in the note, who procured absolute bail to be entered for a stay of execution, the recognisance then entered into became a part of the judgment, and an additional June 1830.J OF PENNSYLVANIA. 397 [Burns v. Huntingdon Bank.] security to the bank ; and upon the well settled principles of equity in Pennsylvania a security who pays money for the principal is entitled to all the securities which the plaintiff has for the debt: Wolfersberger v. Bucher, 10 S. & R. 12. The same doctrine is contained in Parsons v. Briddock, 2 Vern. 608. If the Hunting- don Bank had had the bond of a third person as a collateral security, the endorsers would have been entitled to an assignment of it also : Hays v. Ward, 4 Johns. Ch. 127. The doctrine of substitution does not depend upon privity of contract, but upon principles of equity and justice: Dorsheirner v. Bucher, 7 S. & R. 9 ; Lenox v. McCall, 9 Id. 309; Classen v. Morris, 10 Johns. R. 524; Wad- dington v. lledinburg, 2 Johns. Ca. 227 ; King v. Baldwin, 2 Johns. Ch. 554 ; 1 Eq. Ca. Ab. 93 ; 1 Atk. 135 ; 2 P. Wms. 543 ; Hawk v. Geddis, 16 S. & R. 23. The endorsers were prejudiced by the interference of the abso- lute bail who put a stop to the proceeding of the bank to obtain the money. Hale, in reply. We are concerned as well for the bank as for the absolute bail, and contend that in no case can the sureties claim an assignment of the judgment or other security against the prin- cipal until they have paid the whole debt. Here Geissinger has paid but one-half of the debt, and under these circumstances no court has power to interfere with the securities of the bank until their debt is paid in full. If this order of the Common Pleas is sustained Geissinger may take out a lib. fac. for the one-half of the judgment and at some future day Mackey may pay the other half and take out a lib. fac. for his money ; or before such payment the bank may take out a lib. fac. for the balance yet due to them, which would be exceed- ingly inconvenient and irregular, and which shows the propriety of the rule that the whole debt must 'be paid. The entry of absolute bail for the stay of execution was a legal consequence, and which the endorsers therefore knew when they undertook the responsibility of endorsing for Robert Burns. They were not prejudiced by this ; and if they were it was the subject of proof, and which it was incumbent upon them to make. But there is another ground of objection. Although the condi- tion of the recognisance entered into by the absolute bail was that the defendant in the judgment should pay the money within (///< estopped to say anything against his own deed : Co. Lit. W-j l> : - Bl. Com. 295; Co. Lit. 252 a. But this was not the deed nf tlu- defendant in error. It was the deed of the sheriff" to him ; it was the deed of a ministerial officer authorized to make the sale, whose mistakes in the execution of his duties should never be permitted to prejudice the rights of the grantee by way of estoppel. There was no error in admitting this evidence. 408 SUPREME COURT [Sunbury [Hall v. Benner.] The fourth exception was to the rejection of the following evi- dence offered by the plaintiffs in error : " That considerable part of the shop is built outside of the town lots, and on the right conveyed by Smith to Hall, the elder; that on the 26th January 1825, John Hall, the elder, conveyed to John Hall, Jr., all his right under Smith's deed." " This evidence was objected to and overruled by the court. First. Because the defendant is a tenant and cannot dispute the right of his landlord. And second. Because the written papers vest the title of the property in the purchaser at sheriff's sale." If the opinion already given on the previous exceptions is cor- rect, it is clear that the plaintiffs should have been allowed to prove what they offered ; they had proved by William Pettit, " that he was present with Benner and Hall ; heard Benner pressing Hall to take a lease ; Hall down-spirited ; Benner said he was going away next day, and wanted it fixed. This was after the property had been sold. Benner said he might have it till spring on easy terms ; did not want to turn him out ; wanted him to take it ; Benner said if he did not take a lease, he would be under the necessity of removing him and obtaining possession by the sheriff; Hall said he wanted to see Mr. Potter ; it was on the day before Benner was to start away; it was in the afternoon of the day." This evidence of Pettit, corroborated as it was by Petrikin and Ward, was sufficient, connected with the circumstances under which the lease was obtained, to induce a belief that the lease was pro- cured by management ; by a snggcstio fahi, in alleging he had purchased the whole at sheriff's sale ; that he had a right to dis- possess them of the whole, and his hurrying them into the execu- tion of the lease, without an opportunity of consulting their counsel or friends, as they expressed a desire to do, a measure suggested to Benner by Mr. Petrikin, as a safe one, if he intended to hold the property. The plaintiffs in error were not such tenants as precluded them from showing what they offered to prove. The very question trying was, whether the written papers vested the title of the property in the purchaser at sheriff's sale? If they did what property ? Was the tilt-hammer and water-right conveyed by Smith to Hall, Sr., included in the sale made by the sheriff? Was anything more sold than three lots? If not did the three lots extend westerly beyond the water's edge of Spring creek ? If they did, how far did they include the shop, tilt-hammer and dam ? A solution of these questions could only be made by an application of the description of the property contained in the deed, to the pro- perty claimed under it. The situation of the property claimed, and the relation it bore to the property described, could only be ascertained by parol proof. The court, therefore, erred in reject- ing the evidence. June 1830.] OF PENNSYLVANIA. 409 [Hall v. Benner.] The court instructed the jury that the plaintiff below had shown a right to recover on every ground: First, as landlord. It is a sacred principle of law, that the tenant shall not dispute the title of his landlord. Second. That the fair and correct construction of the defendant's conveyances, mortgages, judgment, sale and sheriff's deed, vested the right of the whole property, whatever it was, in the plaintiff; and that the conveyance by Smith was an appurte- nance which attached to the property. To this charge the plaintiffs in error excepted, and this forms the fifth bill of exceptions. It may be true, as a general principle of law, that the tenant shall not dispute the title of his landlord. Yet the application of this general principle is restricted to cases in which the lease has been fairly obtained, without any misrepresentation, management or fraud. A lease unfairly obtained, will not prevent the lessee from con- testing the title of the lessor : Brown v. Dysinger, 1 Rawle 408, 415, and the authorities there cited. In that case, the only evi- dence of unfairness was that Walker threatened to turn Brown out of possession if he did not execute a lease ; and that Brown was then very sick with the consumption, and died sometime the follow- ing month. The case under consideration is much stronger in favor of the tenant than that of Brown. The correctness of this observation will be manifest by a refer- ence to the testimony recited, in giving the opinion in this cause, on the third and fourth bills of exceptions. Benner urged the exe- cution of the lease on the ground that he had a right to the pos- session of the whole of the premises, and that he had the right to remove Hall by the sheriff, and refused Hall time to consult his counsel. This was a suggestion of a falsehood calculated to mislead Hall. Benner had at the time no title to the land. The levari facias was not then returned. If the property had been then struck off to him, there was no record of it. And if there had been, the sale was liable to be set aside at the instance of Hall, or his creditors ; or to be defeated by his (Benner's) neglect to comply with the con- ditions of sale. Until the sheriff's deed to him was acknowledged, he could legally take no step to obtain possession ; and even then of nothing not contained in the deed. When acknowledged, he must have given three months' notice before he could have a jury called to dispossess Hall, which would have prevented him from removing him by the sheriff forthwith, as it was evidently insinuated he had a power to do. The proposition, which was made on the 2t>th of November 1824, was to lease it to him until spring on easy terms; when it appears that the sheriff's deed to Benner was not acknow- ledged until the 26th April 1825. 410 SUPREME COURT [Sunbury [Hall v. Benncr.] If this case docs not exhibit all those features of management, unfair and uncaridid conduct, as well as misrepresentation on the part of Benner, I should be at a loss to conceive one what would. It is evident that Hall was taken by surprise, and was artfully inveigled and hurried into the execution of the lease, without any opportunity of consulting his friends or his counsel, which he desired to do. There is a wide difference between the case of a lease from a person having title or possession ; and that of a lease from one having no title, no possession or no right to possession, as to the conclusivencss of the evidence. In the former case, generally speaking, the tenant would be estopped from disputing his land- lord's title, unless fraud, mistake or imposition be clearly proved. In the latter case, the lessee would not be concluded by the lease, because the obtaining a lease under such circumstances, would generally be considered as unfairly procured. The plaintiffs in error, on the facts disclosed by the defendant in error, should have been allowed to have impeached the lease ; and the testimony of Pettit and the other witnesses should have been submitted to the jury. The court unquestionably erred in the instructions given to the jury on the second point. The fair and correct construction of the defendant's conveyances, mortgages, judgment, sale and sheriff's deed, arising on the face of the papers, without reference to any extrinsic circumstance, is that nothing more was sold under the mortgage than what was contained in the description of the pro- perty mortgaged, and that nothing more vested in the purchaser. The mortgage was for three lots, which John Hall, the elder, had conveyed to John Hall, Jr. Those lots were described by Nos. 130, 131 and 132, in the town-plot of Bellefonte, with clearly designated boundaries ; each containing sixty feet in front on Spring street, and extending thence westwardly to the water's edge of Spring creek. On the face of the title-papers, these three lots only were conveyed to Benner. The sale was effected by a proceeding on the mortgage. The sheriff could sell no property which was not de- scribed in the mortgage, and conveyed by it, unless from its very nature and quality, it was necessary to the enjoyment of what was actually described. If a mill had been within the boundaries of the lots sold, and it had been granted, the water as used for the mill would have passed as appurtenant to it : 3 Salk. 40. But if a man sells a mill cum pcrtinentiin, and a jury find a kiln was occupied with the mill for many years, the kiln'should not pass by those words, for it might be a lime kiln ; and might have no relation to the mill ; but if the jury had found it to be a malt kiln, it might be otherwise : Shep. Touch. 89-DO. June 1830.] OF PENNSYLVANIA. 411 [Hull v. Bennef.J Strictly speaking lands cannot be appurtenant to lands, or a messuage to a messuage: Plow. 170; 1 Sil. Ab. ( J1. But the vford pertens may be taken in the sense of usually letten or occupied with the land : Plow. 170. Lands shall pass on a lca.se or devise of a house as pertaining to the same, when it hath b<-en used and occupied with it, ten years or more: which is i-ljudgi-d a Buflicient time to make it appertaining to the house: Cro. Eli/,. 704. A grant of a manor cum pertinentiis, it is said, will pa.is all things belonging to the manor: Owen's R. 31. But in all these cases it must be ascertained by parol proof what was usually letten or occupied with the land, the messuage, mill or manor, unless the extent of the claim appears on the face of the paper title ; and even then to settle what lands, what waters, what dams or races have been used and occupied as appertaining to the property purchased. All these are questions involving matters of fact, not appearing on the face of the title papers, and should have been submitted to the jury for their decision. The court excluded very important evidence as to the relative situation of the two properties ; refused to let the plaintiff's in error prove that the shop was partly situated on the tract bought of Smith, and not included in the mortgage, which went to shut out all the evidence of plaintiffs in error, as to their title, their possession and occupancy : the situation of the dam, the race, and the land purchased of Smith ; and then instructed the jury that all the rights vested by the paper title in the defendants in error ; and by it they were entitled to recover. Who can say on looking over the paper title, which was the most worthy, the property derived from Smith, or that derived from Harris. That which is the most worthy is the principal ; and when ascertained by a grant of it, that which is less worthy or incident, or accessary shall pass by the grant. The principal will not pass by the grant of the incident or accessary. Acccssorium non diicit. aed sequitur suum principale : Shep. Touch. 89. For anything that appears to the contrary, the right derived from Smith may be the principal. The deed from him to Hall, senior, bears date the 2Uth of April 1806. The deed from Harris to Hall bears date the 27th of November 1807. The title to the property purchased of Smith is above a year and six months older than that of Harris to Hall. The title to the property acquired by the pur- chase from Smith existed in Hall independent of the three lots granted by Harris to him, more than eighteen months prior to the title acquired from Harris. It was not, therefore, during that time appurtenant to the three lots purchased of Harris. If it ever he- came appurtenant thereto, when and how 'I This can only be shown by matter in pnis. It was not purchased sis a necessary appendant to the enjoyment of the three town lots, because it was purchased Ion** before Hull became the owner of the three town lots. From 412 SUPREME COURT [Sunlury [Hall v. Benner.] all that appears, the property purchased of Smith was the principal, and the purchase from Harris was the accessary ; and requisite to the full enjoyment of the rights purchased of Smith. These mat- ters may be made to wear a very different complexion from that which they exhibit now on the face of the papers. Judgment reversed, and a venire de novo awarded. Referred to, 4 C. 170; 7 Wr. 169. Commented on, 3 W. 403. Followed, 6 W. 45 ; 2 W. & S. 249 ; 6 Barr 163. The principal case is probably the one referred to, 9 C. 99 ; as 1 P. & W. 170. Cox against Norton. In a suit brought by the administrators of a deceased's estate, to recover the purchase-money of land sold by them in pursuance of an order of the Orphans' Court, one of the heirs of that estate, who had at the bar, upon the trial of the cause, released all his interest in the estute to another of the heirs, is a competent witness for the plaintiffs. A witness who swore before arbitrators that from an entry in his book, which he had then before him, he knew an occurrence had taken place on a certain day, having died before the trial of the cause in court, it is competent to prove what he swore before the arbitrators, without the production of the book. The fact of a paper having been given in evidence before arbitrators with- out objection, is no reason why it should be received upon the trial of the cause in court, if it is otherwise illegal. WRIT of error to the Special Court of Mifflin county (Reed, president). This was an action of debt upon a bond brought by John Norton, who survived George Ilanawalt, against Charles Cox. The plaintiff, Norton, and Ilanawalt were the administrators of Philip Powell, deceased, and as such, by an order of the Orphans' Court, sold the real estate of the deceased to Charles Cox, the defendant below, and took his bonds for the purchase-money, upon one of which this suit was brought. The only thing to be tried in the cause was the genuineness of a receipt, dated 22d October 1824, alleged to have been given by George Hanawalt in his lifetime to the defendant, for 31100. Many bills of exception were taken to the admission and rejection of evidence, during the course of the trial, only three of which are material to be stated. The case had been tried before arbitrators, when the sub- scribing witness to the receipt testified that the receipt was signed by George Ilanawalt on the day it bears date, and at a certain place. June I830.J OF PENNSYLVANIA. 413 [Cox v. Norton.] A witness was then called to prove that on the day the receipt bears date George Ilariawalt was at another place. The witness brought his day-book before the arbitrators, and having it open before him he said that from an entry in it he knew that George Hanawult was in Waynesburg that day. Before the cause was tried in court that witness died, and the plaintiff offered to prove what he swore before the arbitrators. The witness by whom it was offered to be proved having been asked whether the witness before the arbitrators spoke of the date, independently of his book, answered, '' I can't remember that he undertook to speak of any date independently of his book entry which he opened." The defendant objected to the evidence on the ground that the book was not produced. The objection was overruled and excep- tion taken by the defendant. John Hainan, who had purchased a share of the estate of Philip Powell, deceased, executed a release of it at the bar to one of the other heirs, and was offered as a witness, to which the defendant objected, but the testimony was admitted, and exception taken by defendant. The plaintiff had procured a statement in the handwriting of Mr. Ralston of Philadelphia of money which the defendant, Cox, had received there. The defendant gave notice to the plaintiff to pro- duce it before the arbitrators ; it was there produced and read in evidence without objection. The same paper was produced in court on notice, and the defendant offered it in evidence on the ground that it had been admitted before the arbitrators without objection. The plaintiff objected to it, the court overruled it, arid sealed a bill of exceptions at the instance of defendant. Alexander and Potter, for plaintiff in error. The witness before the arbitrators spoke from the entry in his book, it was an essential part of his testimony which we had a right to see ; giving evidence of what the witness swore, without the production of the book, was giving parol proof of what was in writing: Juniata Bank r. Brown, 5 S. & 11. 226. John Hainan should not have been permitted to testify : he was one of the heirs of Powell for whose use the suit was prosecuting: he had been the party interested had been engaged for several years preparing for the trial, had all his feelings embarked in it. and upon the trial he transfers his interest in the suit to a third fx-r- fton, and does not release to the party in the cause. He being a party in interest was liable for costs, although not nominally a party, and he could not release himself from that liability. The paper in the handwriting of Mr. Halston would have shown where the defendant got the money for which the receipt was given; and having been read in evidence before the arbitrators without objection, and then produced in court by the plaintiff, it was com- petent evidence. 414 SUPREME COURT [Sunbury [Cox v. Norton.] Rlanchard and JIale, for defendant in error, whom the court declined to hear. The opinion of the court was delivered by HUSTON, J. Of the nine bills of exception to testimony sealed by the court below at the instance of the defendant's counsel, only three were relied on in this court. The suit was brought by Nor- ton and Ilanawalt, in the lifetime of the latter, to recover the price of a tract of land sold by them, under an order of the Orphans' Court, as administrators of Philip Powell, to the defendant. John Hainan was entitled to the share of one of the heirs of Powell, and having executed a release of his interest to another of the heirs was admitted as a witness. We have in this state admitted the plaintiff in the cause after suit brought ; or what is the same thing in sub- stance, a man who contemplates bringing a suit, has been permitted to assign his interest and be a witness. I have always believed, and experience strengthens this belief, that by so doing we have not improved the administration of justice. But this is not that case. J. ITaman was, perhaps, not at all interested in the suit try- ing. The administrators and their bail were liable to him whether they recovered or not ; but he was not at all events a party not liable for costs, and not affected, except so far as the plaintiff would be less able to pay, if he did not succeed in this suit ; for it must be remembered that the whole matter in dispute was the amount paid by the defendant to the plaintiff; or, in other words, whether a receipt produced by the defendant was the receipt of the plaintiff. After the release Hainan was a witness within all the decisions in this and other states made since releases by witnesses were known. This cause had been tried under our Act of Assembly before arbitrators, and on that trial Anthony Elton had been examined as a witness ; he was now dead ; what he swore was proved by a wit- ness in this cause, viz. : That on the 22d day of October 1824, he had George Ilanawalt's horse in Waynesburg (the receipt was dated on that day), that George Hanawalt brought the horse to the shop himself, and that it was in the afternoon of that day. Wit- ness added, Mr. Elton brought in his day-book, and had it open when he gave his testimony, and said u I cannot say that he relied on his book and not on his memory ; I don't remember, and I can't rcmcfmber that he undertook to speak of any date independently of his book." The objection to this evidence was that the book might have been produced in court at the time the witness gave this testimony. If Mr. Elton had been alive and giving testimony, and had said he could fix the time from an entry in his day-bouk, there might have been some pretence that the other party on their cross-exami- nation should have the advantage of seeing the day-book and the entries arid the regularity of those entries. Though 1 do not June 1830.] OF PENNSYLVANIA. 415 [Cox v. Norton.] know that such has boon the practice. A witness called to fix a date, often says, he has referred to his books after lie had been subpoenaed, as to the date of a deed, note or receipt given at the time, and such book or paper is sometimes produced, and sometimes not. That is not this case; here Mr. Elton was dead, and what he said was to be proved, not the ground of his belief or why ho said so. The witness might not know the writing of Mr. Elton ; might have never seen the inside of this book ; not know it again if pro- duced. All that he offered to do was to prove in court what Mr. Elton had sworn, that he undertook to do, and was permitted to do, and there is no error in receiving the testimony. After very much testimony pro and con had been given as to this receipt (which was dated 22d October 1824, and for SHOD). The plaintiff called a witness who stated, and no objection taken to it, " Cox stated he had got the money in Philadelphia, and had lent it to Mr. Hammond or Mr. Lusk ; that he had it at the bank, and had borrowed some from a man in Millerstown ; he said that was the money he paid to Hanawalt." A third person had pro- cured in Philadelphia a statement from 11. Ralston, of payments made to the defendant, on account of a legacy, viz. : in March 1823, $500, in June 1823, $925, and had given this to the plain- tiff's attorney. When the cause was before arbitrators, the de- fendant's counsel had asked the plaintiffs for this paper, after stating that he had no right to it, he, however, gave the paper, and it was shown to the arbitrators. After the appeal, viz. : at the trial in court, the defendant called for this paper; plaintiff's counsel said he had it, but would submit to the court whether it was evidence, and handed it to the court, who after looking at it, gave it back, and decided it was not evidence, and clearly it was not; it was. in three lines having no reference to this or nny other cause ; a mere short memorandum, not sworn to, nor even certified to be correct ; but it was argued here, that having been before the arbi- trators, that made it evidence on the appeal. If whatever is admitted by arbitrators, produced and not objected to before arbi- trators, is to be evidence on the appeal, it will make a great altera- tion in the rules of evidence in our courts, or rather we will have a different set of rules in every case of appeal. Whenever an account is admitted to be due, or a paper to be genuine, before arbitrators, perhaps the proof of this may generally be evidence in court. The admission or confession of the party is almost always evidence, no matter where it was made. This is not that ease. Arbitrators under our Act of Assembly, are the judges of what is admissible as evidence, as well as of the weight and effect of that evidence ; no bill of exception to testimony is taken before them, the only redress from any and every error of theirs is the appeal to court, and this appeal is given as much for the purpose, that the last solemn final decision of the cause may be hail on legal testi- 416 SUPREME COURT [Sunbury [Cox v. Norton.] mony, and nothing but legal testimony, as for any other purpose. Much is heard by the arbitrators which ought not to go before them, to contend about the admissibility of evidence before men unacquainted with the rules of evidence, and the principles upon which they are founded, is irksome, useless sometimes, and not seldom injurious to the client; if the cause is decided erroneously, the party appeals, and the counsel know, and must know that in court on the appeal, no other evidence will or can be received, ex- cept what ought and would have been received, if it never had been before arbitrators. The confessions or admissions of a party are generally evidence against him, no matter when they are made, but paper statements, parol or hearsay evidence from third persons, or by witnesses, are to be decided on by fixed and settled principles. It was said, however, that the party here was surprised ; that if he had not believed this paper would be produced, and read without objection, he would have taken the deposition of R. Ralston ; but he had no right to believe any such thing ; it is a first attempt to alter the law in this respect, and the alteration attempted is too pregnant with evil, to receive any sanction from this court. That Ralston paid defendant $500, and $900, at the periods of eighteen and fifteen months before the date of this receipt, was very weak evidence, if evidence at all, of the payment claimed by the defend- ant. If a man could get clear of a debt by proving that he had once the means by paying it, we should have a new chapter of evidence, and new principles of decision, and the debts of those who are rich, or who are in business by which much money passes through their hands, would be easily paid ; in general such proof would not be admissible. But it is said in this case the plaintiffs themselves had given some evidence on this subject and had intro- duced it. But now the plaintiff seems to have admitted the fact, that he got money in Philadelphia; but they had proved that the defendant said he had lent that money. The man to whom he said he had lent it (Mr. Hammond), was in court, a witness in the cause, he could tell whether he ever had it or repaid it ; Millerstown was in the adjoining county ; the man from whom he got the money there was not offered ; the bank was in town, its officers or books were not resorted to ; there was no attempt to give the only material evidence on this point. (I do not say it was evidence un- less plaintiff had proved something which made it so), nor of giving evidence directly bearing on what plaintiff had proved ; it is a sheer attempt to subject the Common Pleas to the rules and prac- tices and irregularity of trials before arbitrators. The court below were right on this point also. Judgment affirmed. Referred to, 3 R. 410. Followed, 3 P. & W. 44. June 1830.] OF PENNSYLVANIA. 417 McKennan et al. against Doughman. All agreements for the sale and purchase of land, are consummated and extinguished by the deed. If therefore the grantor makes a deed to the grantee, which contains a general warrantee of title, he cannot afterwards show by parol, that an agree- ment was made a few days before, that the grantee was to patent the land. The purchase-money due the Commonwealth, is an encumbrance which may be set up as a defence to the payment of bonds given for land, which the f~vt.'::r, covenanted to convey clear of encumbrances. WRIT of error to Mijflin county. This was an action of debt, brought by Stephen Doughman against Patrick McKennan and James Henderson, on two bonds, one conditioned for the payment of 50Z. on the 1st April 1822, the other for the payment of 62?. 10s. on the 1st April 1823. These bonds having been read to the jury, the plaintiff rested. The defendants then proved that the consideration of the bonds was a tract of land sold by Doughman to McKennan, and produced the deed therefor, dated 1st April 1815, which contained a general warranty of the title. The defendants then further showed by cer- tified copies and certificates from the Land Office that the purchase- money was still due to the Commonwealth, and that no patent had ever issued for the land. To rebut this, the plaintiff offered to prove that the bargain between him and McKennan was that McKennan was to patent the land himself. To this evidence the defendants objected ; the court admitted the evidence and sealed a bill of exception. The witness then said : " In the last week of March, or 1st of April 1815, he met McKennan, who told him that Doughman had thrown off $200 from the price of the land for patenting it ; the witness told him he thought he had made a good bargain in getting $200 for that." On his cross-examination the witness said : " When this conver- sation took place, McKennan was then at the bank to get the hand- money to pay Doughman." A witness who was present at the execution of the bonds and deed, testified, that there was nothing said about the patenting then. The defendants' counsel requested the court to charge the jury, "that if they believe that the conversation which took place be- tween McKennan and the witness was before the execution of the deed and bonds, all previous agreements between the parties were consummated by the deed, and the defendants have shown a good defence to the amount of the patenting money." To which the court, in substance, answered : '' That if the jury believed the parol evidence, and that the agreement between Mc- 1 p. & W. 27 41* SUPREME COURT [Sunbury [McKennan v. Doughman.] Kennan and Doughman was that McKennan was to pay for patent- ing the land, such agreement would not be extinguished by the J execution of a deed containing a clause of general warranty ; that the patenting money was an encumbrance upon the land ; and if the jury disbelieved the parol evidence, they should defalk the amount thereof from the bonds ; if they believed it, they should find the whole amount of the plaintiff's claim." The admission of the parol evidence, and the opinion of the court, were assigned as error. Fisher, for plaintiff in error. The conversations, as testified by the witness, must have been before the execution of the deed, and if 'so, should not have been received ; for all contracts and under- standings between the parties were consummated by the deed. No fraud in its execution was alleged ; parol evidence was, therefore, inadmissible : Thompson t>. White, 1 Dall. 424 ; Snyder v. Sny- der, 6 Binn. 483; Wallace v. Baker, 1 Id. 610; Gilpin v. Conse- qua, 1 Pet. C. C. 85 : Dinkle v. Marshall, 3 Binn. 587 ; Heagy v. Umberger, 10 S. & R. 339 ; Christ v. Diffenbach, 1 Id. 464 ; Hain v. Kalback, 14 Id. 159 ; Hamilton v. Asslin, Id. 448 ; Chris- tine v. Whitehill, 16 Id. 98 ; Bellinger v. Eckert, Id. 422. Hale, for defendant in error. The parol evidence may have been received to explain fraud or mistake, for the warranty had been special and was made general by an interlineation. What takes place at and immediately before the execution of a deed may be proved by parol: Campbell v. McClenachan, 6 S. & R. 171. The opinion of the court was delivered by SMITH, J. (His honor here stated the facts of the case.) The exception to this decision brings before us. the question (and it is the only one in the cause), whether the parol evidence offered was admissible on principles heretofore decided and recognised? It is to be remembered the evidence was not presented to prove what actually passed between the parties at the time of or immediately before th* execution and delivery of the bonds and deed ; nor to prove any trick or fraud practised by the grantor, nor any mis- tuke by the person who drew the bonds or deed. It was offered on the broad ground to show that a few days before the bonds and deed were executed, some parol agreement was made between the parties, by which McKennan was to patent the land. It does not appear that anything was said by the parties on the subject when the deed and bonds were executed ; no article of agreement was then produced; no mistake of the scrivener pretended ; no allegation that he was misinformed by any of the parties or that he misunderstood or disobeyed his instructions ; on the contrary, it appears that the deed was amended just before the execution for June 1830.] OF PENNSYLVANIA. 419 [McKcnnan w. Dou^hman.] the purpose of embracing the covenant of general warranty above stated ; this then is the naked case, in which parol evidence was admitted to contradict and control the express covenant of a deed, freely executed and delivered, and as freely accepted ; which is contrary to the general rule, always adhered to in this state, with very few enumerated exceptions, that parol evidence shall not be admitted to destroy, control, add to, or alter a written instrument. Here, the deed, altered and amended, at or immediately before the execution, was clearly the consummation of all previous bargaining, and contained the final intent and agreement of the parties. These principles, long since decided, have often been recognised by this court, particularly in Cozens v. Stevenson, 5 S. It. 421, and in Collan v. I locker, 1 Itawle 108. Judgment reversed, and a venire facias de novo awarded. Referred to, 2 W. 202. Commented on, 2 P. & W. 530 Followed, 3 II. 72. Diemer ayainst Sechrist. A presumption of satisfaction from lapse of time, arises in the case of an administration bond ; and the computation runs from the period when the money was demand able. WRIT of error to the Common Pleas of MiJHin county. This suit was brought on the administration-bond of the defend- ant, Christian Sechrist, one of the administrators of Christian Sechrist, Sr., deceased, by Peter Sechrist, one of the heirs. The plaintiff gave in evidence the bond dated 10th May 1707 ; the inventory amounting to 745L 16s. 27 ; an administration account of the defendant and his co-administra- tors, filed 7th January 1803, showing a balance in the hands of accountants of 145b7. 18s. Wd. ; and also, their supplementary administration-account, filed the 20th August 1805, showing a bal- ance in their hands of 1585/. 7s. \Qd. The plaintiff having given this evidence, the defendant's counsel requested the court to instruct the jury that the common-law lim- itation was a bar to the plaintiff's recovery under the evidence given. The court (TUirnside, president), being of this opinion, a verdict and judgment was rendered for the defendant. The opinion of the court was assigned as error. Wilson and 7'oMr, for plaintiff in error. An administration- bond is not embraced within the reason of the law which bars a recovery after twenty years. In this bond there is no time fixed 420 SUPREME COURT [Sunburg [Diemerf. Sechrist.] for the payment of the estate to the heirs. Although the defendant settled an account in 1803, and again in 1805, yet these accounts do not appear to have been a final settlement of the estate ; he has never been discharged by the Orphans' Court, and is therefore yet the administrator of the estate of the deceased, and may have recovered money of the estate up to the time when this suit was brought. An administrator is a trustee, and holds the estate in trust for the heirs, and on this ground the limitation does not ap- ply ; for although an administrator may plead the statute against a creditor, yet he cannot do so against the heir or next of kin : De~ couche v. Savetier, 3 Johns. Ch. 190 ; Arden v. Arden, 1 Id. 313 ; Norton v. Turvil, 2 P. Wms. 145 ; Farrington v. Knightly, 1 Id. 549 ; Johnston v. Humphreys, 14 S. & R. 394 ; Kane v. Blood- good, 7 Johns. Ch. 90. Hale, for defendant in error, whom the court declined to hear. PER CURIAM. A presumption of satisfaction from lapse of time arises in the case of every species of security for the payment of money, whether bonjl, mortgage, judgment or recognisance ; and the computation runs from the period when the money was de- inandable. The plaintiff was entitled, if not before, yet certainly at the settlement of the administration-account in 1805, and with- out anything to rebut the presumption, he is clearly too late with his suit in 1826. He relies on the fact that the settlement before the register was not confirmed by the Orphans' Court ; but is there the less room for a presumption of satisfaction, because the adminis- trators were not called on to perfect their account ? It is unneces- sary to say that the limitation runs from the time when the parties interested are first entitled to demand an account that point will, when it arises, merit consideration, but we confidently assert that the arrest of a judgment actually in progress, strengthens, rather than weakens the presumption of compromise and satisfaction. Judgment affirmed. Referred to, 2 W. 222; 7 C. 422; 4 Smith 466. Affirmed, 12 Smith 157. June 1830.] OF PENNSYLVANIA. 421 Bryan et al. against McCulloch. The oath upon which to ground a writ of error, must be made by the party, and it is not sufficient if made by the attorney. Tins was a writ of error to the Common Pleas of Mifftln county. Hale, for defendant in error, moved to quash, because the affi- davit to ground the writ of error was made by the attorney, and not by the party, as required by the Act of Assembly. Potter, contra, insisted that a majority of the precedents are in favor of the practice pursued in this particular instance. Copy of the affidavit : Bryan ") W. W. Potter, the attorney and counsel of W. P. v. > and T. M. Bryan, who did not reside in the county McCulloch. J of Miffiin, and who were not present at the trial of the cause, being duly sworn, doth depose and say that the above writ of error is not applied for for the purpose of delay. W. \Y. POTTER. Sworn and subscribed the 22d January } 1819, before me, an associate judge > of MifHin county. JOHN OLIVER. J PER CURIAM. The decisions on this point have been inconsist- ent, because it was not deemed sufficiently important to receive much consideration ; and convenience requires that the practice in regard to it be settled. We have, therefore, carefully examined the words of the act, and find that they peremptorily require the affi- davit to be made by the party. This will doubtless occasion no small degree of trouble and perhaps vexation ; but were we to be drawn from the plain direction of the law by anything less than absolute necessity, it would be impossible to predict the point at which we should stop. Shall the attorney be authorized to make the oath in all cases, or only where his clients reside out of the county, or out of the state, or out of the United States ? These are questions which none but the legislature can solve ; and it will, no doubt, interfere to remove any serious inconvenience that may be felt. In the meantime it is our business to execute the law as we find it ; according to which it is clear that the writ of error issued improvidently. On hearing the opinion of the court, Jlalt' said that as his object was only to have the practice settled, he would, with the leave of the court, waive his objection ; and the motion to quash was withdrawn. Commented on. 2 \Vh. 182. Followed, infra, p. 4S1. Remedied by 11 June 1S3'_'. \ 3 P. L. 611. 42-2 SUPREME COURT [Sunbury McCullocli against Sample. Executors who were authorized to sell the real estate of their testator, for the payment of certain legacies, sold the same, and afterwards settled tln'ir account in the Orphans' Court, by which it appeared there were assets to pay the legacies: the legatees afterwards filed refunding bonds, and brought suits against them as executors, and obtained judgments. Hdd, that such judgments are not liens on the real estate of the executor. ERROR to the Common Pleas of Mifflin county. This was an issue directed by the court in pursuance of the Act of Assembly, to try the right to money in the hands of George McCullocli, Esq., sheriff, which was made out of the sale of the real estate of Francis Sample, deceased. The property was sold for $3350, and after the payment of a judgment of the Huntingdon Bank v. Francis Sample, and the costs of sale, there remained $528.18 in the hands of the sheriff, which was claimed by the plaintiffs below as the executors of Francis Sample, deceased, as whose property the land was sold, on the ground that there was no lien upon the property payable out of the proceeds of sale, except that of the Huntingdon Bank. David Cummins, Charles Cummins and William Cummins claimed the money on the following grounds : David Sample died, having first made a will and testament, by which he appointed Francis Sample and David Sample, his sons, to be his executors, and authorized them to sell his real estate, and, inter alia, bequeathed certain legacies to his grandchildren, the said David Cummins Charles Cummins and William Cummins. The said executors sold the real estate of their testator in 1801, and in 1806 settled an administration account, by which it appeared there was a large balance in their hands. In 1819 David, Charles and William Cummins each filed refunding bonds, and brought suit against Francis Sample and David Sample, executors of David Sample, deceased, to recover their legacies under the will of their grand- father ; arid on the llth December 1819, each obtained a judgment for 3209.23, and each issued a fieri facias to November Term 1820, against the estate of David Sample, deceased, which were returned 4 ' not executed," and alias fieri facias were issued in 1823, and were returned "nulla bona." David, Charles and William Cummins in the court below con- tended that these three judgments were liens on the estate of Francis Sample under the Act of 21st March 1772. And secondly, If they were not, the court would, in the exercise of their equita- ble powers, decree the money to them, under the speoial circum- stances of this case. June 1830.] OF PENNSYLVANIA. 423 [McCulloch P. Sample.] But the court (Burnside, president), being of a different opinion, instructed the jury that the executors of Francis Sample were en- titled to the money in the hands of the sheriff, after the payment of the bank judgment, arid they found accordingly " Potter, for plaintiff in error. When assets come to the hands of an executor, he is personally liable to a creditor or legatee of the estate. In this case the claim was not made against the estate of David Sample, deceased ; for his whole real and personal estate, by the direction of his will, had long before been converted into money by his executors, which remained in their hands and for which they were liable, and did charge themselves in the settlement of their administration account. By the 3d section of the Act of 21st March 1772, Purd. Dig. 517, it is provided, that when there is a plea of no assets by an executor, certain proceedings shall take place by which the amount of the assets shall be ascertained; judgment shall then be entered to remain as security ; it is reasonable that this security shall be against the estate of the executor, who gives no bail ; and particu- larly in this case, where there was no estate of the testator, which could have been secured by the judgment; here the executors ad- mitted, by their .settlement in 1806, that the assets were in their hands, upon which our judgment was obtained. On this point were cited Wilson v. Wilson, 3 Binn. 557 ; Isett v. Brenizer, MS., Chambersburg, October term 1828. A judgment generally against an executor is personal : Griffith v. Chew, 8 S. & R. 17. Fisher and Hale, for defendants in error. It would be contrary to legal principles that when an executor is sued in his representa- tive capacity, declared against as such, and judgment on that decla- ration, that that judgment should bind him personlly. Executors, by a proper proceeding against them, may be made personally lia- ble, but that proceeding has not been pursued in this case : Com- monwealth v. Kayrn, 2 S. & R. 37 f> ; Guier v. Kelly, 2 Binn. 2!>4; Clark v. Herring, 5 Id. 33. In Wilson v. Wilson, the declaration was against the executor personally. Potter, in reply. A proceeding to prove a devastavit can only be instituted bv a creditor, and not bv a legatee; but whv should * v m either one or the other institute a proceeding to ascertain that which the executors always admitted and put on record by the set- tlement of their accounts ? The opinion of the court was delivered by ROGERS, J. Whether an action for a legacy may not be sup- ported, under the implied promise to pay. arising from the consider- 424 SUPREME COURT [McCulloch v. Sample.] ation of assets, it is unnecessary to decide. In Clark v. Herring, 5 Binn. 33, it was ruled, " that assets are a sufficient consideration for a personal promise by one who is executor to pay a legacy and charge him de bonis propriis." And in Isett r. Brenizer, it would seem to have been the opinion of the court, that an action may be maintained against an executor personally on a promise implied from the consideration of indebtedness. However this may be, the legatee may elect to bring suit against him in his representative character, and this, it is believed, is the usual form ; in which case the judgment is de bonis testatoris and not de bonis propriis. And in this I do not agree with the reasoning of the chief justice in Isett v. Brenizer. The legatees brought this suit against Francis and David Sample, as executors of David Sample, deceased. The cause was referred, and the arbitrators awarded generally in favor of the plaintiff. As there was no declaration or statement filed, the judgment follows the nature of the writ, and is a judgment against them in their representative, and not in their personal, character. The fi. fa. pursues the judgment, and, in short, there is nothing on the record which indicates any intention of considering the execu- tors personally liable for the debt. On the contrary, no person, who might search the docket for encumbrances, would for a moment have supposed that the judgment bound the individual property of the executors. Wilson v. Wilson, 3 Binn. 557, was a suit for a distri- butive share, in which the writ, and the recital in the declaration, was against the defendant as executor, but the count was on a pro- mise in his individual character. And this constitutes the differ- ence between the cases, for it was the count which controlled the writ and rendered Wilson personally liable on the judgment.- It could not have been pretended that he would have been personally bound, independently of the declaration, and that by virtue of the count, in which he is charged individually. Had the plaintiffs filed a declaration or statement, with the proper averments, as in Wilson v, Wilson, there would have been room for the argument, that his being stated to be executor should be rejected as surplusage. As the defendants were sued as executors, judgment recovered against them as executors, and execution was issued against them in the same capacity, we are of the opinion this judgment should be affirmed. Judgment affirmed. Commented on and dissented from, by Gibson, C. J., 2 P. & W. 494. June 1830.] OF PENNSYLVANIA. 425 Gro et al. against Huntingdon Bank. A creditor who has obtained judgment against the principal, against the endorsers, and against the absolute bail of the principal, and has issued execution and levied upon the land of the principal or of the absolute bail, may, nevertheless, have execution of the chattels of the endorsers. Nothing but actual satisfaction can prevent him. The bare seizing of land in execution to the value of the debt, is not a satisfaction. WRIT of error to the special court of Common Pleas of Mifflin county (Reed, president). The Huntingdon Bank loaned $1000 to Robert Burns, for which they took his note with Christian Gro and Joseph Townsend, en- dorsers. To April term 1817, the bank obtained a judgment against Robert Burns, and also to the same term against Christian Gro and Joseph Townsend; after judgment was obtained against Robert Burns, the principal, Hugh Burns, John Rothrock and James Robinson went his absolute bail for the money, in order to obtain the stay of execution for one year. After the year had expired, Burns, Rothrock and Robinson were sued on the recogni- sance by the bank, and judgment obtained against them, upon- which a fi. fa. was issued and levied upon the land of the defend- ants ; an inquisition was held thereon, and it was extended. Sub- sequently a fi. fa. issued upon the judgment against Christian Gro and Joseph Townsend, which was levied upon the land of Christian Gro, whose counsel moved the court to set aside the execution on the ground that property of the absolute bail had been levied to an amount sufficient to pay the debt, interest and costs. But the court being of opinion that the bank had a right to proceed against both, until it received satisfaction, refused to set aside the execution against Christian Gro, and this writ of error was sued out. Fisher, for the plaintiff in error. The bank had no right to issue a fi. fa. against Gro, the endorser, until it had exhausted the judgment, execution and levy of the property of the absolute bail: Bank of Pennsylvania v. Latshaw, 9 S. & 11. 9; Hunt r. MeClure, 2 Yeates 387 ; Clerk v. Withers, 2 Ld. Raym, 1073; Windham r. Withers, 1 Strange 515 ; 2 Wil. Bac. Ab. 717, tit. J-lwution ; Lancaster u. Fielder, 2 Ld. Raym. 1451; Chitty on Bills 443 ; Ilayt v. Hudson, 12 Johns. 11. 207 ; Barnet v. Washebaugh, 1C S. & R. 410 ; Commonweath v. Lebo, 13 Id. 175 ; Lawrence t. Pond, 17 Mass. 433 ; McLelland v. Whitney, 15 Id. 137 ; Ladd t>. Blunt, 4 Id. 403. Upon principle it would be wrong, to permit a plaintiff to take out several executions, and upon each to levy pro- perty enough to pay the debt, because if the sheriff" levies he must sell ; he is commanded so to do ; he has no right to judge or know that two or more executions are to satisfy the same debt. 426 SUPREME COURT [Sunbury [Gro o. Huntingdon Bank.] Jfale, for defendant in error, admitted that a levy upon personal property to an amount sufficient to pay the execution, was a dis- charge of the debt, and that the authorities read on the other side very fully established that rule of law ; but still contended, that the idea, that a levy upon land was a satisfaction of the debt, never was printed in a book. Fisher, in reply, read, McCullough v. Guetner, 1 Binn. 214 ; Morris v. Griffith, 1 Yeates 189. PER CURIAM. Levying the lands of bail, is not distinguishable from levying the lands of the principal ; so that the question is whether a creditor who has levied the land of the drawer of a note, may nevertheless have execution of the chattels of the endorsers. Nothing but actual satisfaction can prevent him, and accordingly the argument is that a levy is satisfaction. It is clear, however, that the bare seizing of land in execution to the value of the debt, is not so. A condemnation of the land might have given color to the argument ; but the rents and profits having been found sufficient to produce satisfaction in seven years, the creditor was at liberty to proceed to an extent or not, at his election, and having declined to take satisfaction out of the profits, it is clear the debt remains. Whether, however, a mere refusal to stay proceedings be properly the subject of a writ of error, is a point which has not been made, and on which we forbear to intimate an opinion. McConahy against Centre and Kishaeoquillas Turn- pike Road Co. Satisfactory proof of the loss of a written advertisement must be given to lay a ground for the admission of the advertisement copied into the news- paper. A charter of incorporation cannot be declared void in a collateral suit, it can only be vacated by a scire facias to repeal it ; or on a writ of quo warranto at the suit of the Commonwealth. An agreement between commissioners authorized to take subscriptions of stock, that a certain number of shares of fictitious stock shall be subscribed, in order to enable them to obtain a charter, is a fraud upon the bona fide subscribers, which will relieve thorn from any obligation to pay. A declaration made by a third person, in the presence of the commissioner to one about to subscribe for stock, that he can pay his subscription in work, and this not objected to at the time by the commissioners, must be taken as his delaration ; and there is no distintinction between the commissioner and the corporation, in regard to this promise. WRIT of error to the special court of Common Pleas of Mifflin county. This suit was brought by the President, Managers and Company of the centre and Kishacoquillas Turnpike Road Company v. Jarnea June 1830.] OF PENNSYLVANIA. 42T [McConuchy c. C. & K. Turnpike Co.] McConahy, to recover the amount of stock in said company sub- scribed by him, arid which had been called in by resolutions of the said company. The whole case appears so fully in the opinion of the court that any other statement is unnecessary. Fisher and Blanc-hard, for plaintiff in error. Wilson and Potter, for defendants in error. The opinion of the court was delivered by SMITH, J. This case again comes before this court for decision, and I regret that we are a second time under the necessity of re- versing the judgment of the Court of Common Pleas. It was an action of assurnpsit, brought by the defendants in error, against the plaintiff in error, the defendant below, for the amount of his sub- scription of five shares of $50 each, to the stock of the Centre and Kishacofjuillas Turnpike Road Company. On the trial of the cause, after the plaintiffs below had given some evidence in support of their action, they offered in evidence a newspaper, called the '" Ju- niata Gazette," of the 20th of November 1821, in which there was an advertisement, purporting to have been signed by the defendant, with six others, calling a meeting of the stockholders, to hold an election for officers to organize the company, for the purpose of showing that James McConahy had accepted the charter, and had acted under it. To the reading of this paper the defendant objected; the plaintiffs then called William Mitchell, who proved that he had printed the paper and had regularly issued it ; that it was not his custom to preserve original advertisements, and that he never did preserve them ; that he had told the defendant he had not the original, nor any papers among which he could look with any hope of finding it ; that he thought the old papers of the office were de- stroyed among waste paper, shortly after the publication ; and that some of the advertisements he had taken from the Bellefonte paper ; but could not say as to this, nor that it was, or was not, copied from the last mentioned paper ; that if he copied it from a written paper it was either destroyed or lost, but that he had not hunted for it, as he had no place he could look with any prospect of finding it. He also proved that the defendant was one of his subscribers, and took his paper at the time. The defendant, however, still objected to the reading of the paper, alleging there was no proof that the de- fendant had signed it or authorized it to be printed, or knew any- thing of the transaction ; that the original should have been produced, or its loss proved ; and that the first seven commissioners should have given the notice, not the first seven subscribers. The court overruled the objections and admitted the newspaper in evi- dence. An exception was taken to this opinion of the court, which forms the first error complained of. 428 SUPREME COURT [Sunbury [McConachy r. C. & K. Turnpike Co.] The question was, whether James McConahy had signed the ad- vertisement or authorized its publication. If it had merely been whether he had notice of a fact published in the newspaper, the fact of his taking the paper in which it was published might have been submitted to the jury ; but I take it that in this case the original paper, signed by the person, ought to have been produced, or its loss proved, and if its loss had been legally proved, then proof that the defendant had signed it, or proof that he knew of it, and had agreed that some other person should write the advertisement and put his name to it, would have been sufficient. But the evi- dence did not prove the fact that the defendant had advertised, or sanctioned the advertisement ; indeed, there was no legal evidence to show that due diligence had been used to procure the original, or to account satisfactorily for the want of it, in truth, the witness said he had not looked for it, as he had no prospect of finding it. This was not a sufficient reason to supersede the necessity of a search, and a diligent search might have been successful. The defendant moreover was not one of the commissioners, he was only a subscriber, and as such was not entitled to advertise ; the com- missioners alone were directed to perform this duty. See Pamph. L. of 1821, p. 75, and Pamph. L. of 1826, p. 349. We therefore think that the admission of the newspaper was wrong. The decis- ion in the case of Sweigart v. Lowmarter, 14 S. & R. 203, on a similar point, goes far to determine this part of the case. After the plaintiffs had read the advertisement to the jury, they gave further evidence to prove that the defendant had constituted a proxy to vote at the first election of the company for officers ; they also proved the amount of the cost of the road and its annual toll, and then rested their cause. The court permitted the plaintiffs to prove by one of the commis- sioners that he saw the defendant sign for his five shares at Mr. Rey- nolds' tavern ; that the commissioners had obtained all the stock they could after the Act of 1821, called the General Appropriation Act, had passed, giving this road $20,000. This witness also proved that he had calculated the probable expense of the road, and was satisfied that they had a sufficient sum subscribed, taking in the $20,000 from the state, or perhaps more ; that thereupon the commissioners met at Kerr's, at which meeting all or nearly all were present, and the calcu- lation laid before the commissioners, and they were all of opinion that no more stock could be obtained, but that with the state stock they would have enough ; that it was debated whether they should get the amount of individual stock reduced or get the amount required by the act by adding fictitious stock, so as to obtain the charter, and enable the company to go on. The commissioner then filled up the certificate, or in part signed it in blank, when the other commis- sioners took it, and were to get it completed, and this was the last act the witness did, in relation to the company, except paying June 1830.] OF PENNSYLVANIA. 429 [McConahy v. C. & K. Turnpike Co.] stock. The witness also proved, that he saw a subscription of the board in a book of fictitious stock, and that the first suggestion of taking fictitious stock was in Lewistown. There were from two hundred and ninety to three hundred shares of good stock, about half the amount required. The Act of Assembly required six hun- dred shares before a charter could be -obtained. The witness de- clared they were right in their estimate ; for the good shares were amply sufficient, with the $20,000 to make the road. He could not say that he ever told the defendant that three hundred shares would be enough, but he often had repeated the declaration. On his cross-examination, the witness said, " there was no other com- missioner but myself present" (when Mr. Reynolds took pains with Mr. McConahy to induce him to subscribe), " he took more pains with him than I did ; I put him more particularly under his care." The defendant also proved, by another witness, that while he was taking stock in 1821, with the commissioner, he was anxious to have stock taken, and that he was requested to speak to the defendant for this purpose ; that he did so, and took him into the room in which the commissioner was ; that the defendant refused to subscribe, and that then the witness urged as a means to induce the defendant to subscribe, that he could pay it in blacksmith work, that the defendant had before refused, alleging he was not able ; that he prevailed on him to subscribe he believed by holding out the inducement of paying in work ; the treaty with the defend- ant was in the presence of the commissioner, who, however, did not say anything, and was not appealed to. Being cross-examined the witness could not remember the manner he had pointed out, of the defendant's getting the work, but that he had referred to his labor as a means of getting money to pay, and said it would be to their interest to collect in work, that there was no stipulation by the commissioner that the company would take work ; the matter was principally left to the witness. This closed the testimony on both sides, when the following points were submitted to the court by the parties, to wit : the plain- tiffs requested the court to instruct to jury : " 1st. If the jury believe that the defendant advertised, as one of the first seven stockholders named in the charter, for an election, signed a proxy and voted at the election by proxy, on the ''Id of December 1821, it would be conclusive evidence, in point of law, of his acceptance of the charter, and the plaintiffs would be enti- tled to recover. " 2d. That the Act of the 10th of April 1826, and of the 1st of April 1823, validates the subscription of the defendant, and places him in the same situation as if no fictitious stock had been ob- tained. " 3d. That even if the stockholders would take advantage of the 430 SUPREME COURT [Sunbury [McConahy r. C. & K. Turnpike Co.] fictitious stock, yet the defendant by his acts of voting by proxy, advertising, &c., cannot now set it up as a defence in this suit. ' The defendant requested the court to instruct the jury : " 1st. That if they believe McConahy, the defendant, did not know that fictitious stock had been certified to the governor, when he gave his proxy to James Milliken, then that proxy cannot affect the defendant. ; ' 2d. If the jury believe that the advertisement for the election for managers, of the first seven subscribers, was done without the agency of James McConahy, the defendant, but by other persons using his name, then this advertisement cannot in any way affect him. " 3d. If James McConahy was induced to subscribe five shares of stock, for which this suit was brought, under the promise of paying in blacksmith work and other work, the plaintiffs should have made a demand of this work before they could sustain this suit. "4th. That if the jury believe at the time McConahy subscribed his five shares, and at the time the advertisement for the election, and at the time he gave his proxy to Milliken, he was ignorant that fictitious stock was certified to the governor, the plaintiffs are not entitled to recover." These points were generally answered by the court in their charge to the jury, which was as follows, to wit : " It appears to me that the three following questions are pre- sented in the investigation of this cause : " 1. Was the charter accepted and confirmed by defendant; if 80, he cannot now gainsay it. " 2. If not accepted or confirmed by defendant, was the admis- sion of the fictitious signers of stock, by the commissioners, a fraud upon the defendant. " 3. Was the subscription of McConahy obtained through fraudu- lent representations, sanctioned by the agent of the company ? " By the Act of 1821, for the erection of this company, Mr. Burnside and others were appointed commissioners to receive sub- scriptions, so as to enable the subscribers for stock to obtain a charter of incorporation. The leading public object was to have a turnpike-road made from Brown's mills to Bellefonte. It may have been a private object with the subscribers to vest their money in a fund that, besides contributing to the completion of the road, might furnish them an annual interest. The commissioners were as well agents for the public as for the subscribers. It was, therefore, a duty imposed by interest on the subscribers to attend to the trans- actions of the commissioners. The Act of Assembly was directory upon the commissioners, and they had no legal ability to do any thing contrary to the provisions of the act. No charter could have been demanded until all the provisions of the act were complied with ; and the subscribers could not be prejudiced by any act of June 1830.] OF PENNSYLVANIA. 431 [McConachy . C. & K. Turnpike Co.] the commissioners contrary to law. The charter was to be procured from the government for the benefit of the subscribers, not for the benefit of the commissioners. If the subscribers procured their charter without an exact compliance with the provisions of the law, it was not for those who procured it to complain. The government from whom it was obtained might or might not repeal it at their pleasure. So long as the charter exists unrepealed, and more par- ticularly since the original defects have been expressly waived by the government by a positive Act of Assembly, it exists Iffjully, and is of full force and effect according to its import. The com- pany has a legal right to sustain a suit in their corporate name, and upon the trial now in progress on the pleas and issues upon the record, the validity of the charter cannot be inquired into. The court and jury are bound to give effect to the contracts of the cor- poration and to the contracts in subscribing for stock, made before the date of the charter, so far as such contracts were fair and honest, and did not fraudulently affect the interest of such sub- scribers. If the commissioners did any act contrary to their legal duty after James McConahy subscribed for five shares of stock, without his knowledge or assent, to his prejudice, it would avoid the obligation of his engagement to pay. Two acts are complained of by the defendant as having this effect. First, It is complained that instead of obtaining the subscription of six hundred shares, before a charter was obtained, only three hundred good shares were ob- tained ; and in this way it said the defendant was prejudiced. If McConahy had no knowledge of such fact, and he never assented to it directly or indirectly, and it was in prejudice of his rights, his subscription was not binding upon him. But supposing him to be wholly ignorant of the facts in relation to the fictitious stock, and the fact of the charter being obtained upon it, was he prejudiced by it ? It is as well a presumption of the law as the testimony in the case, that it was supposed that the full amount of the bona fide subscriptions, together with the state money, would be required to complete the road. And from the terms of the subscription it was indicated that the subscribers were bound to pay 350 on each share by them respectively subscribed. There were two objects the sub- scribers probably had in view, one the completion of the turnpike road, the other the vesting of their money in a productive fund. From the testimony it appears that the first object has been fully effected, for the road has been long since made, and the company been in the receipt of tolls for the whole distance. The second object may have been advanced rather than ////?/ >V(f by the contri vance of certifying the fictitious subscriptions. Because if six hundred shares had been subscribed at $-30 a share added to the state stock of $20,000, it would have amounted to $50.000, while three hundred shares at $50, with the state stock, amounted to $35,000 ; if the whole money had been received and expended as 432 SUPREME COURT [Sunbury [McConachy r. C. A K. Turnpike Co.] is generally the case, in the one event, the defendant would have drawn his dividend in the proportion his stock bore to $50,000 ; in the other, in the proportion it bore to $35,000. It is left to the jury to say whether, under all the evidence, the facts in relation to the fictitious stock injuriously affected the engagement of the defendant under his subscription, without his knowledge or assent, directly or indirectly ; if so, it would absolve him from his engagement. Where companies have plenty of money they generally spend it liberally ; where they have little, it often induces economy. It can hardly be doubted that the principal and leading object of the sub- scribers was to effect the completion of the turnpike road contem- plated. We have it in proof that after earnest attention to the business, and every diligence used, the commissioners could only obtain about three hundred shares of stock to be subscribed, and the Act of Assembly requiring six hundred before a charter could be had, they were at a stand, they could not move a step further. The great object of the subscribers was likely to be defeated, and it was only by the expedient resorted to of filling up the list with the names of persons unable to pay that the charter could be had, or the great work effected. Although as between the government and the subscribers, the expedient resorted to may have been excep- tionable, it appears to me it was manifestly for the advantage of the subscribers ; indeed it was the only way the commissioners could devise to effect the object at all. The subscribers accepted the charter so obtained, the company was organized, money collected, the road made, toll-gates erected, and the company now in the receipt of tolls ; and the government confirmed the charter, on their part waiving all objections on account of the irregularities alluded to. IIow, then, was the defendant injured in the affair? He subscribed for five shares. His subscription imports an uncon- ditional obligation to pay the whole if required. There is no con- dition precedent expressed in it, and the idea was not held out by the commissioner, as he stated in evidence that less than the whole would be required. The road was sooner made, and it is said to be well made, and very probably made for less money by the expedient resorted to, than if the whole six hundred shares had been sub- scribed by solvent stockholders. I do not, therefore, see so plainly how the defendant ivas injured or exposed to injury in this trans- action, and if he was not, I see no reason he has to complain. " But it is said he accepted the charter, advertised for the elec- tion of officers under the charter, and voted at the election by proxy. If he did accept the charter, knowing the facts alluded to, his mouth would be closed, and no objection on that account could now avail him. See first point on part of the plaintiffs, and first point on part of the defendant. The advertisement and proxy are evidence to show his acceptance of the charter. But if, in truth, he did not know that fictitious stock had been certified to the gov- June 1830.] OF PENNSYLVANIA. 433 [McConachy v. C. & K. Turnpike Co.] crnor, when he gave his proxy to James Milliken, such proxy would not affect him. There is no legal magic in the proxy ; it is only as evidence of the fact of acceptance of the charter. If he did so, knowing the facts, he is barred in his defence. If he did not know the facts, the proxy would have no effect. See second point of defendant. The same remarks apply to the advertisement. If it was done without the agency of defendant, by other persons using his name, it would not affect him. It seems it was riot his duty to advertise ; he was not, therefore, bound to know the facts in rela- tion to it ; anything thus done in ignorance of a man's rights, or of the facts do not affect him. " Fourth point of defendant. Such ignorance as is set out in this point may not be a bar to plaintiff's recovering, if the charter was obtained, the company organized, the work done as intended, and the state has confirmed the charter, waiving all exceptions to these irregularities. If defendant was not injured or defrauded, he would have no right to resist the payment on that ground. See second point on part of the plaintiff. The two acts referred to do validate the charter and the subscriptions, if bona fide made. But if fraudulently obtained on part of the commissioner, this act would not, and could not, confirm them. If fraudulent in the beginning, no subsequent acquiescence of the defendant would make them good. It would require a new engagement, or some- thing equivalent. The legislature never intended to give effect to a contract improperly obtained, contrary to the consent of the injured party. The terms of the act only apply to subscriptions obtained bona fide in one act, and in good faith iu the other, which is the same thing. " Third point of plaintiff. If the giving the proxy, voting, ad- vertisement, &c., satisfy the jury that the defendant knowingly accepted the charter, we before said, and now repeat, that his mouth would be closed ; but if done without a knowledge of the facts he now complains of, or by others, without his knowledge, defendant would not be affected by it. " Third point on part of defendant. The commissioner taking the stock was the agent appointed by law for that purpose. If the defendant was induced to subscribe under a promise or engagement from him that it should be paid in blacksmith work, the plaintiffs should have made a demand of such work before they could sustain this suit. It was the duty of the commissioner to take subscrip- tions on the terms prescribed by law. Those terms are set out in the writing in the book over the subscriptions ; it calls for money, not for work, and the commissioner had no power or authority to promise or engage to take payment in work. lie might use fair reasoning and argument to induce such subscriptions, but could not use false inducements; but was only responsible for his own con- duct in this particular. If others falsely induced defendant to sub- 1 p. & W. 28 434 SUPREME COURT [McConachy v. C. & K. Turnpike Co.] scribe, if the commissioner had no hand in it, and did not assent to it, it was the defendant's folly, and ought not to avail him. / would apprehend from the evidence that no such fraud was prac- tised on the defendant by the commissioner. But it is a fact to be determined by the jury. Indeed the whole cause depends mainly on the evidence : was the defendant imposed upon, was the terms of the agreement altered to his prejudice, was he circumvented by the agent, was any fraud practised upon him ? If so, he stands discharged from the obligation of his engagement. If he knew how the charter was obtained, and assented to it, and voted by proxy for officers under it, or if the fictitious stock was added and certified even without his consent; if it did not defraud or injure his rights, and if he subscribed voluntarily -the written engagement over his name, he is bound to pay. Plaintiffs only claim thirty dollars a share, with common interest/" To this charge the defendant excepted, and has here assigned nine errors ; some of which have not, however, been insisted on in the argument. The errors are : 1. The court erred in receiving in evidence the newspaper con- taining the printed advertisement, as set forth in the first bill of exceptions of defendant below. 2. The court said, " was the charter accepted and confirmed by the defendant? If so, he cannot now gainsay it." 3. The court said, " upon the trial now in progress, and the pleas and issues upon the record, the validity of the charter cannot be inquired into." 4. '* There were two objects that the subscribers probably had in view ; one, the completion of the turnpike road ; the other, the vesting of their money in a productive fund ; the second object may have 1 been advanced rather than injured by the contrivance of cer- tifying the fictitious stock." 5. In saying, " I do not therefore see so plainly how the defend- ant was injured or exposed to injury in this transaction ; and if he was not, I see no reason he has to complain." G. " That if the defendant did accept the charter, knowing the facts alluded to, his mouth would be closed, and no objection on that account would now avail him." 7. " That the advertisement and proxy are evidence to show his acceptance of the charter. If he did so, knowing the facts, he is barred in his defence." 8. Court erred in charging on defendant's fourth point, in say- ing, "such ignorance as is set out in this point may not be a bar to plaintiff's recovering, if the charter was obtained, the company organized, the work done as intended, and the state has confirmed the charter, waiving all exceptions to these irregularities." 9. The court erred in charging on the third point of defendant, Jane 1830.] OF PENNSYLVANIA. 435 [McConachy v. C. A K. Turnpike Co. in saying "the commissioner had no power or authority to promise or engage to take payment in work." The first error assigned, having already been considered, any further remarks in relation to it, are deemed unnecessary. In delivering the opinion of the court on the remaining errors, I pro- pose to confine myself to such general remarks as may on this occasion suffice. The defendant complains, that the court erred, when they told the jury that the validity of the charter could not be inquired into in this action. This point came before us, and has already been decided in the case reported in 16 S. & II. 140. where it was expressly declared, that if the charter had been even fraudulently obtained, it could not be declared void, collaterally, in a suit like the present ; it could only be vacated by this court, either by scire facias to repeal it or to declare it forfeited, or on a writ of quo war- ranto, at the suit of the Commonwealth, and so the court below declared the law ; there was then no error in this part of the charge. But if, in obtaining the charter, a fraud has been committed on the defendant in this action, by which he has sustained or might sustain an injury, it is an entirely different question, whether the corpora- tion can sustain this suit. The evidence is positive, full, complete and uncontradicted, that the charter was obtained by means of the subscription of three hundred shares of fictitious stock, in order to make up the six hundred shares, required by law before a- charter could be granted, and that a deliberate plan was adopted and pur- sued to obtain the fictitious stock, and thereby obtain a charter and the 20,000 subscribed by the state. But there is no proof, nor color of proof, that the defendant knew of the plan or scheme to put down fictitious names for three hundred shares, or ever knew anything of the execution of the plan, or that it had been carried into effect. It appears that it was suggested and adopted at a meeting of the commissioners, at which it is not pretended, any stockholder, who was not a commissioner, was present. The defend- ant was not a commissioner. There is no proof that the sub- scribers to this stock were informed that three hundred shares, together with the Commonwealth's subscription of :20.0<)0 would be sufficient to make the road ; the commissioners, to be sure, were so told, but not the stockholders. Can it then be supposed, that if the stockholders had been informed of the scheme, they would ever have agreed to it? Or have we a right to say, they would have assented? For my own part, I cannot think they would. It was a direct injury to every stockholder who had subscribed, for if six hundred shares had been taken, as the law provided, it is evident, that no more than $lo would have been required on each share, whereas by the plan adopted in taking three hundred shares from fictitious subscribers, every real stockholder is called upon to pay $30 on each share. I would ask, was it just, was it fair to deal thus with the stockholders. The proof in this cause, 1 observe, 436 SUPREME COURT [ [McConachy v. C. & K. Turnpike Co.] was by one of the commissioners, and he does not state that the commissioners ever divulged their plan of taking fictitious stock, to the real subscribers, or that any of them knew of it, until after the company was in operation. This, in my opinion, was a fraud on every subscriber, and would excuse him from the payment of his subscription. Let me not be understood, as imputing to the com- missioners an intentional fraud, such is not my meaning, I have the pleasure of knowing some of them, and I know, that they are incapable of any such intention. The facts are, however, distinctly proved, and nothing is left to inference ; it was therefore wrong to refer it to the jury to decide, whether the defendant knew of what was proved to have been done in his absence, and never communi- cated to him ; it was essential for the plaintiffs to establish by evidence the fact of notice, nor could the defendant be called upon in the first instance to show that there was no notice. It is contended, that the defendant accepted the charter, and thereby waiving all objections, must pay his subscription money. It is true, a charter was obtained, but the subscribers did not know when or how it was obtained, of the imposition on the government, they knew nothing. They had no direct agency in obtaining it, in fact, the subscribers could not have obtained it, for the commis- sioners were the persons to certify the necessary facts to the governor, and when this was done, the charter was thereupon granted. I am satisfied, that if a proper application had been made, and the proper mode pursued to repeal this charter, the Supreme Court must have declared it void, as to the state, on account of the imposition practised, or that the state would have been justifiable in refusing to pay their subscription of $-0,000. The legislature, however, having waived their right, the charter is valid as to the state. But, there has been no waiver by the sub- scribers, who subscribed on the faith of the law, which assured them that they should contribute with subscribers for six hundred shares, but are afterwards called on to contribute double the sum with half "the number of shares. .The defendant has not waived any right to resist this imposition so far as he is affected, and he stands discharged, in consequence of the fraud, from his obligation to the company. The last error assigned is, that the court erred in their answer to the defendant's third point, in saying, that the commissioner had no power or authority to promise or engage to take payment in work. Mr. Reynolds, in the presence of one of the commissioners, after the defendant had refused to subscribe, urged as a means to prevail on him to subscribe, that he could pay it in blacksmith work, and on this assurance, obtained the defendant's subscription. This declaration, made in the presence of the commissioner, and not objected to by him, is to be taken as his declaration, nor is it correct June 1830.] OF PENNSYLVANIA. 437 [McConachy v. C. . Ewing, 10 S. & R. 371. The plaintiff in this suit sues in his own individual right, and the plea of non assumpsit admits the character in which he sues : McKiram 'v. Riddcll, 2 Dall. 100. Potter and Blauchard, for defendants in error. The plaintiff claims the money as trustee of Davidson, and he must show that ho has qualified himself under the Act of 4th April 1798, before he can sustain a suit. Upon his neglect or refusal to give bond, the court may appoint another trustee: Willis v. Row, 3 Yeates 520; Cooper v. Henderson, 6 Binn. 189. Under the plea of non assump- Bit, the defendant may avail himself of the defence that no bond has been given : Kennedy v. Ferris, 6 S. & R. 397 ; Park v. Graham, 4 Id. 549. Hale, in reply. If the court should be of opinion that the judg* mont should be reversed, they will enter judgment for the plaintiff below upon the verdict. PER CURIAM. The sheriff is an officer of the law, but for the benefit of those who are entitled to his services ; and to suffer him, instead of serving the plaintiff in an execution, to baffle him by disaffirming his right to the money, although solemnly adjudged in an action between the proper parties, would be vexatious and oppressive. No sheriff ever thought of alleging as to a pretext for retaining money in his hands, that the plaintiff had recovered under void letters of administration. His plain duty is obedience to the mandate of the writ, by having the money ready for the plaintiff before the court. On the other hand, although the sheriff will not be allowed to dispute the plaintiff's title, the court will take care that the creditors of the insolvent be properly secured before the plaintiff has leave to take the money out of court; and thus sub- stantial justice will be done without delay. Judgment of the court below reversed, and judgment upon the verdict for the plaintiff. June 1830.] OF PENNSYLVANIA. 439 Smiley agaimt Dixon et al. A. being the owner of a tract of unimproved land, sells one hundred acres to H. and one hundred acres to (J. : 1. and (J. clf, a title to the whole of the land. WRIT of error to the Common Picas .of Clearfield county. This was an action of ejectment brought by Robert Smiley, the plaintiff in error and plaintiff below, against Robert Dixon, Benja- min Carson and James Carson. The case was this : Robert Maxwell was the agent of John Mitchell, with authority to sell certain lands in Clearfield county, and being indebted to Robert Smiley, the plaintiff, he agreed to sell to him one hundred acres of the land, in consideration of the debt. About the same time, Maxwell also agreed to sell the other hundred acres of the same tract to Benjamin and James Carson, the defend- ants, at $1.~>0 per acre, out of which wa.s to be deducted a debt due to them also. Maxwell afterwards went upon the ground with Smiley and the Carsons and marked the division line between them. The agreement between them was that Mitchell was to make the titles. Soon after this, Smiley and the Carsons discovered that neither Maxwell nor Mitchell had any title to the land. At this time no possession had been taken of the land by either partv. Smiley then said that he would go on the land, improve it, and acquire title by improvement, and hold four hundred acres. He did move on it, built a house, cleared land, raised grain, and made a survey to include the land in question and which is the part which Maxwell sold to Benjamin and James Carson. About two vears afterwards, Benjamin and James Carson went upon their hundred acres, put a small house on it, and put Dixon, one of the defend- ants, into it as their tenant. It was also in proof, that before the Carsons went on the land, one Dunlop had settled upon their hun- dred acres and commenced an improvement, and in conversation between Dunlop and Carson, he told Dunlop that lie had better not make an improvement for Smiley would take it from him. The court below was of opinion, and so instructed the jury, that the plaintiff ought not to recover, on the ground that each had pur- chased the one-half of the same tract of land, each had expended his money, and each had a right to perfect his own title to his respective lot; and that it would be against equity and justice to permit either to take advantage of the other, inasmuch as they had purchased from the same source, with a perfect knowledge of each other's rights and had been equally unfortunate. 440 SUPREME COURT {Sunbury [Smiley r. Dixon.] The jury found for the defendants and the plaintiff sued out this writ of error. Blanchard, for the plaintiff in error. The law as laid down by the court, is only applicable to a case where there is a privity of estate or interest or community of title, and such is the case of Vanhorn r. Fonda, 5 Johns. Ch. 407, upon which the opinion of the court below in this case was predicated. In this case there was no privity of estate or community of title. The doctrine, when it does apply, is founded upon a trust, which did not exist between Smiley and Carson, for their titles were separate and distinct : cited Walker v. Walker 16 S. & R. 384 ; Dorsey v. Jackman, 1 Id. 51. Valentine, for defendants in error. The conduct of Smiley in procuring his title to the prejudice of Carson, taken in connection with the relation which existed between them, was a fraud which equity will not sanction. The parties lived together, consulted about their title, talked about their division line, and with a full knowledge of each other's want of title, Smiley sneaks off and com- mences an improvement not only to perfect his only title, but also take from Carson his title. The parties had a community of title ; for each purchased the same title from the same person. This is an action in which the plaintiff seeks to have the equitable powers of the court administered in his behalf, which his conduct does not merit. He cited 4 Yin. Ab. 388; 1 Fonb. Eq. 125; Dunning v. Carothcrs, 4 Yeates IT ; McPherson v. Cunliff, 11 S. & R. 427. The opinion of the court was delivered by HUSTON, J. (His honor here stated the case.) The court of Common Pleas instructed the jury, that as both plaintiff and de- fendants had purchased from one who had nothing to sell mere moonshine and were equally unfortunate, that it was against equity for the plaintiff to claim, and take into his survey, what he knew another had bought, and what was separated by a line which he knew, and which he saw run and marked. That as they both purchased from the same person, the one could not hold the land which was to have been given to the other ; and the court relied on the case of Vanhorn v. Fonda, "> Johns. Ch. '5X8, and Ligget v. Bechtol, in this court. If Maxwell had title, this would have been right; for neither could obtain fairly from him what he knew was by agreement to be conveyed to another. But it is ad- mitted that Maxwell had not even color of title: his sale then, and purchase from him is literally nothing, even if there had been proof that his agreement with Carson had assumed any definite shape. Chancellor Kent decided, that one of two devisees could June 1830.] OF PENNSYLVANIA. 441 [Smiley v. Dixon.] not purchase an encumbrance on their joint estate, and use it to sell the land and strip the other of his property ; and in Ligget v. Bechtol, this court decided that two tenants in common, who had heard of an adverse title, and agreed to join in defending against it, or in purchasing, were bound to deal fairly with each other ; and that one of them who purchased the adverse title for a small sum, must hold it in trust for the other upon that other paying his propor- tion of the purchase-money ; and the law is clearly as decided in each of those cases, nay, it goes farther ; and wherever two have a joint estate, it raises a duty in each to deal fairly with the.other; arid one who purchases an adverse title, will not be allowed to sweep all from his co-tenant ; unless some special circumstances occur in the case. In this case, these men did not purchase jointly, neither had anything by purchase from Maxwell; they were not joint ten- ants, nor tenants in common ; and there was no privity between them. The bare fact that each had been cheated, neither gave any right to the other, or deprived him of the full and absolute right to purchase from the real owner, when discovered. The state was the owner ; and Smiley purchased from the state by his actual set- tlement. When a man sells a defective title, and afterwards purchases the real title, this shall be in trust for his vendee, from whom he shall not take away the land which he himself sold. And when one, present at a treaty of sale, advises a person to purchase and that the title is good, he shall not afterwards purchase a good title, and recover the land from one whom he induced to buy and pay his money : Lane v. Reynard, '2 S. & 11. Gf>. This does not come within any of those cases ; nor, as is believed, within any decided case ; nor is it governed by any principle recognised in any court. There was no privity, no confidence between the parties, no con- cealment by Smiley, and nothing done by him to induce Carson to purchase, or to confide in their purchase. The land was vacant to be taken by the first occupant ; and there existed no obligation of law or tie of conscience, to prevent Smiley from taking possession. It was however said, that Smiley, who was unmarried, boarded at Carson's during the inception of his improvement, and until his house was fit to reside in. Of itself this would give no right to Carson. The proof is that before and during the time of improving, Smiley said he would hold four hundred acres by his improvement : and there is another fact which shows that Carson knew this, and acquiesced in it, that is, that he told Dunlop, who began to improve on the land now in dispute, after Smiley, that Smiley could hold the land by improvement, and Dunlop moved off. This was a ma- terial fact, and showed that Carson knew his own purchase to be worthless ; that he did not claim under it ; that he knew how Smi- ley claimed : knew of the extent of his claim, and admitted its valid ity. Taking this with the other facts in the cause, we are at a loss 442 SUPREME COURT [Sunbury [Smiley r. Dixon.] to discover any principle of law or equity, which has been violated by Smiley, or on which the Carsons can rely as a defence. It is ngt enough to destroy a right, that some men would have scrupled to have acquired it, until they had inquired of another whether he wished to purchase it. For some time after the imposition by Max- well was discovered, the land was open to occupation by the Car- sons, as well as by Smiley ; they do not enter, they know Smiley is acquiring title ; they state to a third person that his title is good. Years afterwards, when the general improvement of the country ia adding value to lands, they enter under pretence of what is con- ceded to be no title. This conduct savors more of unfairness than that of Smiley. Judgment reversed, and a venire facias de novo awarded. Referred to 2 Barr 406 ; 1 C. 272 ; 4 Id. 424 ; 23 Smith 247. Engle against Nelson. A special plea that a domestic attachment, grounded upon the same cause of action, had issued in another county, and is yet pending, is a plea ia abatement, and cannot be put in after issue joined upon a plea in bar. The rule is different as regards a popular action ; there the pendency of a prior action extinguishes the title of every one else, and necessarily bars the right. WRIT of error to the Common Pleas of Centre county. This was an action of assumpsit brought by John Nelson, the defendant in error, against George B. Engle. Issues were joined upon the pleas of non assumpsit and payment ; after which the de- fendant filed the following plea : And the said George 13. Engle, by T. Burnsidc, his attorney, comes and defends the wrong and injury when, &c., and says, that he ought riot to be charged with the said debt, because the said John Nelson, on the Oth of February 181S>, issued out of the Court of Common Pleas of Huntingdon county, against the said George B. Engle, a writ, commonly called a domestic attachment, for the same cause of action, for which this suit is brought ; and that the sheriff of Huntingdon county, in pursuance of the said writ of domestic attachment, attached of the property of the said George B. Engle, 310 in the hands of John Wall, $80 in the hands of Thomas Taylor, and accounts, judgments and money in the hands of John Morrison, Esq., and Enoch Hastings, Esq., of the said county of Huntingdon ; and the said court did, on the 18th April IS lit, on motion, appoint John Crawford, Esq., David McMutrie and Jacob NefT, auditors, to settle and adjust the claims of the several creditors of the said George B. Engle. And that the said suit is still pending, and not June 1830.] OF PENNSYLVANIA. 443 [Englc c. Nelson.] finally determined ; and this he, the said George B. Engle, is ready to verify. Wherefore he prays judgment, if the said John Nelson ought to have or maintain his aforesaid action thereof against him, &c." To this plea the plaintiff refused to reply, as being in every way incompetent and informal ; and the court would not require them to do so, but considered it a nullity. To this opinion the defendant excepted, and here assigned it as error. Petriktn, for plaintiff in error. A foreign attachment pending, cannot be given in evidence under the general issue ; but must be pleaded specially: Updegraff v. Spring, 11 S. & R. 188. Pendency of a former action for the same cause, may be pleaded either in bar or abatement: 1 Bac. Abr. 24, tit. Abatement. Potter, contra. If the plea was any thing, it was in abatement, and came too late : Riddle v. Stevens, '2 S. & R. 537 ; Winner v. Schlattcr, 15 Id. 150; Wilson v. Hamilton, 4 Id. 238. That it was a plea in abatement: 1 Chit. Plead. 443; Embre v. Hannah, 5 Johns. It. 101 ; Commonwealth v. Churchill, 5 Mass. 174. When matter is pleaded specially which may be given in evidence under pleas already entered, it need not be answered : Pedan v. Reed, 8 S. & R. 263; Shaw v. Redmond, 11 Id. 27; Riddle et als. i'. Stevens, 2 Id. 544 ; Barrington v. Washington Bank, 14 Id. 405. PER CURIAM. That the pendency of the domestic attachment in Huntingdon county, was clothed in the drapery of a special plea in bar, can impose on the plaintiff no additional obligation to answer it, if it were essentially pleadable only in abatement : and it is necessarily so, where it goes, not to the plaintiff's title, but to the particular action. It is different however as regards a popular action, which vests the property of the thing in action, in the party who has first sued for it; there the pendency of a prior action, which extinguishes the title of every one else, necessarily bars the right, and this distinction is not only founded in technical reason, but recognised by the best elementary writers: 1 Chit. Plead. 443. As a plea in abatement, then, this branch of the defence was not only grossly defective in form, but produced at a stage of the pleadings when it was decisively inadmissible : and the court wad perfectly accurate in treating it as a nullity. Judgment affirmed. Followed, 2 W. & S. 1209 444 SUPREME COURT [Sunbury Irwin against Allen et al. A power of attorney, executed by an administrator, -who does not therein style himself as such, by virtue of which a dispute is settled between his intestate and a third person, by the attorney in fact, is competent evidence to go to the jury, with the settlement and release, particularly if it did not appear that the administrator had any account in his own right to settle. An attorney in fact is a competent witness to prove that a settlement made with him for his principal, upon which he executed a release to the party, was obtained by a misrepresentation of the truth. ERROR to the Common Pleas of Mifflin county. The plaintiffs in error were the plaintiffs below. David Allen, Mary Fetterman and another, were the administra- tors of George Irwin, deceased, who, together with their sureties" in their administration bond, were sued in the name of the Common- wealth, and a judgment was rendered against them for the amount of the penalty. After which a suit was brought by the present plaintiff against David Allen and Mary Fetterman, surviving administrators of George Irwin, deceased, in which he recovered a judgment for $1667.52. Having thus liquidated the claim due to the, estate of James Irwin, deceased, his surviving administrator, James Irwin, issued a scire facias upon the judgment in the name of the Commonwealth to recover the amount due to the said estate by the defendants ; which is this cause. Issues were joined upon the pleas of nul tiel record, payment, a release and accord and satisfaction. The plaintiff having given in evidence the record of the judg- ment, for the penalty of the administration bond, and the judgment in the suit brought against the defendants as executors of George Irwin, deceased, rested. The defendants offered in evidence a power of attorney, James Irwin to Clendeniri Ross, and from Clendenin Ross to William Irwin, and an agreement entered into between William Irwin and David Allen, by which the claim of James Irwin, administrator of James Irwin, deceased, against David Allen and Mary Fetterman, administrators of George Fetterman, deceased, was adjusted and settled by the payment of 300 to the said William Irwin. This evidence was objected to by the plaintiff, on the ground that in the power of attorney, James Irwin did not call himself the administrator of Jarnes Irwin, deceased, nor execute it as such; and that the agreement was not executed by William Irwin as the attorney in fact of James Irwin or Clendenin Ross, but in his own June 1830.] OF PENNSYLVANIA. 445 [Irwin v. Allen.] name. These objections having been overruled, an exception was taken by the plaintiff. The plaintiff then offered William Irwin as a witness, to prove, " that David Allen came to him and stated that there was no part of the estate of George Irwin, deceased, in his hands ; that the whole estate had been disposed of in the payment of the debts of the intes- tate; that he would pay him $300 if h e would give him a release ; that Lawyer Anderson had made a calculation by which it appeared there was not $50 in his hands. That the Witness was induced by these representations to sign the release. And to follow up this by proof, that at that time the administrators of George Irwin had in their hands, estate to a large amount, at least $3000, and that the proportion then justly due to the plaintiff's intestate exceeded 1000." This evidence the defendants objected to : 1. "William Irwin is not a competent witness to prove the facts. 2. It is not an offer to prove that David Allen had the money in his hands, but that it was in the hands of the administrators. 3. The whole offer is to prove mis-statements of Allen, and to set aside the solemn act of the wit- ness himself, when the office was open to him, and he had a full opportunity of informing himself about the estate ; and 4, the whole offer, if believed to be true, is not such evidence of fraud as to zo O to the jury. The court sustained the exceptions and overruled the offer, to which the plaintiff excepted. Error was here assigned in the opinion of the court as contained in these two bills of exception. Potter, for the plaintiff in error. The power of attorney, and agreement made in pursuance thereof, should not have been received in evidence to defeat a claim made by James Irwin in his represent- ative capacity ; for it was not executed by him in that capacitv. There is no rule of law which will exclude William Irwin. as a wit- ness, although he executed the agreement in his own name, yet he did it as the agent of James Irwin, for he had no interest of his own to settle. His evidence did not tend to destroy his own solemn art. but to show the circumstances under which it was executed. Hut even if it did, it would not render the testimony illegal. It was a matter of no consequence whether it was Allen who had the estate in his hands, or his co-administratrix, for they were jointly and sev- erally liable for it. Blanchard, for defendant in error. The plaintiff having derived advantage from the power of attorney, by procuring a settlement of his intestate's claim under it, as though it had been in all respects formal, now objects to it, because he is not railed administrator. It does not appear that he had any claim on the defendants in his own 446 SUPREME COURT [Sunbury [Irwin v. Allen.] right, but, on the contrary, it is manifest that the authority delegated was to settle the claim due to the estate of his intestate. If all the facts offered and contained in the second bill of excep- tions were strictly true, they would not amount to a fraud, such as would avoid the agreement and release. The estate may have been in the hands of Mary Fetterman, and in jeopardy, and if so, it would be perfectly fair for David Allen, although liable, to buy himself out of the liability. The opinion of the court was delivered by ROGERS, J. There is nothing in the first objection. Although the letter of attorney is given by James Irwin, without stating him- self to be the administrator of James Irwin, deceased, yet, it is plain it is a letter of attorney in the suit in which the compromise was made, and was given by the administrator as such, and with a view to a settlement of that suit. It would be unjust that the estate should reap the fruits of the compromise, and afterwards avoid the agreement, because the administrator had omitted to describe him- self, in his representative capacity. If it had been shown that Irwin had any accounts against the estate of George Irwin, in his own right, and that he had disclaimed the act of the attorney, there might have been some color for the objection. But in the Absence of all proof to the contrary, ut res mayis valeat quam pereat, we must refer the transaction to the character in which he alone had any demands against the defendants. After the admission of the agreement, the plaintiff offered to prove that David Allen came to him, and stated that there was no part of the estate of George Irwin in his hands, that the whole estate had been disposed of in payment of the debts of the intestate, and that he would pay him $-300, if he would give him a release ; that Allen stated that Lawyer Anderson had made a calculation, by which, he said, it appeared there was not 8">0 in his hands. This to be fol- lowed up by proof, that at the time the administrator of George Irwin had then of the estate in their hands at least $3000, and that the proportion then justly due to plaintiffs exceeded $1000. We are to take it, that the plaintiff's could prove their offer, and if so, we have the case of a person defrauded out of upwards of 700, by the false and fraudulent representation of his own trustee. This cannot be allowed ; for the law exacts the utmost good faith from one acting as a trustee. It has been repeatedly decided that the guardian or executor shall not be permitted to speculate at the expense of the ward or personal representatives. Nor can I per- ceive in what respect the creditors are placed in a worse situation, as the administrator is as much the trustee of the creditors as the personal representative. It matters not that the administrator de- rives no benefit from the compromise. The creditors have a right June 1830.] OF PENNSYLVANIA. 447 [Irwin v. Allen.] to complain that their interests have been sacrificed, by a person whose duty it was to protect them, and whether this be done for the benefit of himself or others, is totally immaterial to him. It may lessen the moral turpitude of the transaction, that the administrator derives no benefit from the agreement; yet the loss remains the same to the creditor, whoever may profit by his false and fraudulent representations. When we consider that the administrator is usually one of the heirs, or a relative or friend of theirs, there is great rea- son that the court should be vigilant to protect the rights of creditors. As the administrator has the full knowledge of the estate, it is a violation of his duty, to be guilty of any concealment in respect to it. Such a course of conduct is fraudulent and void. As the facts offered were evidence, there is no doubt the attorney in fact was a competent witness to prove them ; he has no interest whatever in the event of the suit. Judgment reversed, and a venire facias de novo awarded. Adams's Appeal. A mortgage unrecorded in tho lifetime of the mortgagor, has no prefer- ence over otlier specialty debts, out of the proceeds of the sale l>y the sheriff of the mortgaged premises, after the decease of the inort^ajjor. Tins was an appeal by John Adams from the decree of the Court of Common Pleas of Huntingdon county, distributing the proceeds of the sale, by the sheriff, of the real estate of James Adams, de- ceased. James Adams, in his lifetime, being the owner of a tract of land, executed a mortgage upon it to John Adams, to secure the payment of a certain debt; he also became indebted to several other persons by specialties, and died. After his death the mortgage was put upon record, sued and judgment obtained thereon. The same laud was then sold on an execution by the sheriff, and the money brought into court for appropriation : and the question presented to the court was, whether the unrecorded mortgage was entitled to a pre- ference over the other debts of James Adams, deceased, which were secured by specialties. The court below made a decree distributing the proceeds of the sale pro rata among all the specialty creditors of the deceased, including the mortgagee; from which decision John Adams ap- pealed. RfU, for appellant. An unrecorded mortgage is good against the mortgagor, the recording act being only intended to protect subse- quent judgment-creditors and purchasers. A creditor of the mort- 443 SUPREME COURT [Sunbury [Adam's Appeal.] gagor, unless he be a lien-creditor, cannot take advantage of the want of recording of the mortgage, which the mortgagor himself could not take : Levine v. Will, 1 Dall. 430. The mortgagee might have sustained an ejectment, and recovered the land itself: Smith v. Shuler, 13 S. & R. 240. Having thus an equitable specific lien on the land, he is entitled to a preference over die specialty cred- itors. Potter, for defendant in errror, whom the court declined to hear. The opinion of the court was delivered by SMITH, J. The moment a man dies, leaving debts, every one of his creditors has a lien on his estate. Such debts have their various grades, fixed by the death of the debtor, and all specialty debts come in, and are to be paid equally. 1 The law requires a mortgage to be recorded in six months, and no estate will pass by it, unless recorded within that period. 2 It is true the Act of Assembly was made for the protection of mortgagees ; but like others, they may lose their lien and their protection by neglect. " Liens," said the present chief justice, in delivering the opinion of this court in Kauf- felt v. Bower, 7 S. & R. 64, " are permitted ; but those who have them, are laid under severe limitations and restrictions. Thus, by Act of Assembly a judgment continues a lien for but five years, unless within that period it be revived by scire facias ; and by the Acts of 1715 and 1775, no mortgage could affect the land, unless it were recorded within six months from the date. This has, however, been altered in some respects by an act of the last session." The owner of this mortgage having neglected the requisition of the law in regard to the recording of it, it is only to be considered as a spe- cialty. In fact, to give to it now, the validity of a regular mortgage, would repeal the Acts of the 28th of May 1715, and of the 28th of March 1820, and of the 14th section of the Act of 1704, and the tendency of the decision would be to defeat all the valuable purposes of those enactments. Nothing favorable to the claim of the execu- tors of John Adams, can be drawn from any of the decisions made in England or other countries, where the laws do not require mort- gages to be recorded, for our recording acts, by their very terms, have put those decisions all out of the question. Decree affirmed. 1 See 24 February 1*34, g 21, P. L. 76. * Sec Nice's Appeal, 4 Smith 201. Commented on, 4 I'arr 12o. Followed, 4 Smith 202. June 1830.] OF PENNSYLVANIA. 449 McKee's Case. The Circuit Court has no appellate jurisdiction of proceedings in the Quar- ter Sessions, when not according to the course of the common law ; hence it has not jurisdiction of a proceeding against a husband for deserting his wife and children. The Circuit Court may remove a cause by habeas corpus, with a view to the trial of an issue, but it can only do so when the issue is according to the course of the common law. JOHN McKEE having deserted his wife and children, she made an application to a justice of the peace for relief, who issued a warrant against John McKee, commanding the constable to take him and bring him before him, that he might be bound over to appear at the next Court of Quarter Sessions, to answer the complaint of his wife. He was taken, and gave security for his appearance at the next sessions, when his attorney made the necessary certificate, and removed the case into the Circuit Court. It came on to be tried in the Circuit Court, and his honor Justice Rogers dismissed the cause and complaint, on the ground that the Circuit Court had no juris- diction of it. From this decision John McKee appealed to the Supreme Court. Petrikin and Potter, for appellant. The Acts of the 9th March 1771, section 30, and 31st March 1812, section 6, Purd. Dig. 659-679, authorize a proceeding by overseers of the poor, in cases where the wife is chargeable, or likely to become so. This is in the nature of a civil proceeding by the wife, and if she is entitled by any taw to recover money, the husband would be entitled to a trial by jury ; and if so, the Circuit Court would have jurisdiction. Whenever an issue is to be tried, that court has jurisdiction : Woods v. Woods, 17 S. & II. 12 ; Light v. Light, Id. 273 ; Robbarts v. Robbarts, 9 Id. 191 ; Whart. Dig. 463, No. 175. Valentine and Blanchard, for aDoellee, whom the court declined to hear. PER CURIAM. The Circuit Court is a substitute for the former Court of Nisi Prius, with scarce any power beyond the trial of issues, but to render judgment and determine appeals from the Register's and Orphans' Courts. There was no necessity, and con- sequently no design to give it the general powers and jurisdiction of the Supreme Court in bane. It clearly lias no appellate juris- diction of proceedings in the Quarter Sessions, when not according to the course of the common law ; especially of a proceeding like the present, which strongly savors of a civil remedy, and which is particularly committed to that court. Even the Supreme Court in bane could take cognisance of it only for the purpose of quash- 1 p. & W. 29 4oO SUPREME COURT [Sunbury [Senser . Bower.] ing it by a certiorari after judgment, which the Circuit Court is expressly restrained from granting ; and although it may remove a cause by habeas corpus, with a view to the trial of an issue, it can do so only when the issue is according to the course of the common law : beside it is enabled by the terms of the Act of 1790, from which it derives its powers, to take cognisance of nothing from the Quarter Sessions but indictments. The present is not a proceeding for alimony, or one in which the intervention of a jury can be had in any shape; and we are satisfied that the judge at the circuit pursued the proper course in remanding it to the sessions. Order of the Circuit Court affirmed. Senser et al. against Bower et ux. For civil purposes, reputation and cohabitation are sufficient evidence of marriage. In all cases of conflicting presumptions on the subject of legitimacy, that in favor of innocence shall prevail. The alienation of an improvement right by the widow, after the death of her husband, leaving an infant two years of age, will not bar the right of such infant to recover the land when it arrives at full age, even if the consider- ation received by the widow should have been applied to the support and maintenance of the child. Quaere, Whether there can be an abandonment of a right by an infant. ERROR to the special court of Centre county (Reed, president). This was an action of ejectment for one hundred and fifty acres of land, brought by Andrew Bower and Susannah his wife, against John Senser arid others. The evidence upon which the plaintiff's title was founded, was that, about 17i>6, Daniel Zinn left the house of a neighbor, with Catherine Kitelinger, for the purpose of being married, they soon returned, and it was understood that they were then man and wife ; that they lived and cohabited together as such, and had issue, one daughter, the present plaintiff. That about 171'8 they moved to the land in dispute, cleared two or three acres and fenced it, built a cabin and stable, and resided there about three years, when Dan- iel Zinn died. The evidence given for the defendants, as they contended, estab- lished two grounds of defence. First, they proved that many years before the alleged marriage of Catherine Kitelinger with Daniel Zinn, she and Jacob Kitelinger left the house of a neighbor to go and be married, that they returned soon after as man and wife, lived and cohabited together as such for several years, and had issue, two sons ; that Jacob Kitelinger went to the western country, June 1830.] OF PENNSYLVANIA 4f>l [Senser v. Bower.] and had been absent about seven years, when his wife married Dan- iel Zinn ; there had been a report that he was dead, but about a year after Daniel Zinn died he returned and took up with his wife again. Upon this evidence, the defendants contended that the second marriage of Catherine Kitelinger was illegal and void, and the issue of it illegitimate ; and therefore the plaintiffs could not recover. The second ground of defence was, that Upon the death of Dan- iel Zinn, leaving his widow and infant daughter, the present plaintiff, the actual settlement was not complete, and at all events insufficient to support the widow and child, and therefore the widow sold what right they had to one Hinton, under whom the defendants claim, and have been in possession for twenty-three years before suit brought, having, during that time, made valuable improvements. It was also ifi proof that Susanna, the plaintiff, was raised and sup- ported by her mother. Many points of law, growing out of these facts, were put to the court by the counsel on one side and the other, upon which they were requested to instruct the jury, all of which were resolved into twa questions: 1. Whether, under the evidence, Susanna Bower was the legitimate daughter of Daniel /inn, upon whom the law would cast an inheritance ; and 2. Whether the right which Daniel Zinn had, by virtue of the acts done upon the land, was such an inheritance as the law would cast upon the heir ; or whether it was not such an imperfect right that might pass as a chattel. The court below was of opinion, that in every aspect of the case, the plaintiffs were entitled to recover, and so instructed the jury. To which opinion the defendants took an exception. Potter and Blanchard, for plaintiffs in error. The proof of each marriage of Catherine Kitelinger was the same, and the first mar- riage being first established, no other marriage could be established by the same kind of proof; the same witness who proved the mar- riage of the plaintiff's father and mother, also proved that the mother was then the wife of Jacob Kitelinger, who was in full life. The first marriage being thus proved by legal evidence, there can be no presumption of a second marriage, because it is a presumption of crime. The children of the first marriage are certainly legiti- mate, and that of the second is as certainly not so. The inceptive right to the land in dispute was sold for a valuable consideration, by the mother, when the plaintiff was two years old, and incapable of maintaining that right : and that consideration applied to her benefit and support: can she now. after the lapso of twenty-three years, recover this land from the defendants who have made it valuable by improvements, and who never had notice of any claim of the plaintiff. The plaintiff is now claiming in an 452 SUPREME COURT [Sunbury [Senser r. Bower.] equitable action, and surely she is met by a superior equity in the defendants : 1 Yeates 523. An infant cannot maintain that kind of occupancy which is ne- cessary to give or complete a right under the Act of Assembly : Mobley v. Oeker, 3 Yeates 200 ; Clark v. Hackethorn, Id. 269 ; 11 S. & R. 341. The effect of the infant receiving the benefit of the sale by the mother : 2 Dess. 232 ; 3 Id. 20-24 ; 4 Id. 445. As to the legitimacy of the plaintiff: 3 Black. Com. 92; Davis v. Houston, 2 Yeates 289. As to the lapse of time before suit brought : Jackson v. Thomas, 16 Johns. 293 ; Jackson v. Wheat, 18 Id. 40 ; 5 Day 181 ; Jackson ex dem. v. Ellis, 13 Johns. 118- 40-513. As to the defendants' want of notice: Day v. Dunham, 2 Johns. Ch. 182 ; Billington v. Welsh, 5 Binn. 129 ; Jackson v. Henry, 10 Johns. 185 ; Hibernia Turnmke Road v. Henderson, 8 S. & R. 219. Petrikin and Valentine, for defendants in error, whom the court declined to hear. The opinion of the court was delivered by GIBSON, C. J. -For civil purposes, reputation and cohabitation are sufficient evidence of marriage : and there is evidently enough in the case to show that the plaintiff's father and mother were mar- ried in fact. But there is said to be the same evidence of a prece- dent marriage of the mother with another man, who was alive at her second marriage ; and hence a supposed dilemma. But the proof being equal, the presumption is in favor of innocence ; and so far is this carried in the case of conflicting presumptions, that the one in favor of innocence shall prevail ; Stark, on Ev. pi. 4, 1248-9. It must be admitted that this principle is not immediately applicable here, inasmuch as there is no conflicting evidence, and the facts supposed to result, are consistent with each other ; but it establishes that the same proof that is sufficient to raise a presump- tion of innocence may be inadequate to a presumption of guilt. To say the least, then, the jury were not bound to draw the same conclusion of marriage from the same evidence, without regard to consequences ; and to have instructed them that they were, would have been error. On the contrary, they were bound to make every intendment in favor of the plaintiff's legitimacy, which was not necessarily excluded by the proof. But was the evidence in fact exactly balanced ? The presumption of marriage from cohabitation may be rebutted by evidence of separation without an apparent rup- ture: Jackson v. Clow, 18 Johns. 346. And here there was a separation, without an apparent cause, for eleven years, which, inde- pendent of any rule of presumption, would be sufficient to give the evidence of legitimacy a decisive preponderance. The facts connected with the remaining point are, that the June 1830.] OF PENNSYLVANIA. 453 [Senser v. Bower.] plaintiff's father made an actual settlement on the land in 1708, by building two cabins on it in succession, clearing and cultivating a portion of it, designating his boundaries and residing on it till his death in 1800, after which his widow sold the improvement to a person under whom the defendants claim. The lessee of Mobley v. Oeker, 3 Yeates 200, and the lessee of Clark v. Hackethorn, Id. 269, are inapplicable to the case of an improvement so recent :w the present. At an early day this species of title was of so little account, that it was sold as a chattel in a course of administration, (2 Yeates 378) ; but in 1800, it had gradually acquired the con- sistence of an indefeasible estate ; and although it might still be lost by abandonment, the evidence of an intention to produce that effect was required to be clear and satisfactory. Here there is no pretence of abandonment, as both parties claim by the improvement begun by Zinn, the title to which was clearly in his daughter when it was sold by her mother ; so that the fifth section of the Limita- tion Act of 1785 (which has been held to operate only on equitable titles then existing), being yet out of the way, the question simply is, whether she is barred by her mother's alienation, and it is clear that unless there is something peculiar in the case, she is not. No equity arises from the supposed application of the price to her maintenance. A sale for that object could be ordered only by the Orphans' Court, with which the law has deposited the requisite discretion. Neither could a supposed necessity to interpose for the preservation of the inheritance from a total loss by abandonment of the improvement, give an additional sanction to the act of the mother. I will not undertake to say that there may not, even at this day be an abandonment by an infant. Whether anything but an intentional relinquishment of the title, of which the circum- stances are but evidence, can be effectual, and whether an infant be not incapable of such relinquishment, by reason of want of dis- cretion, are points that may hereafter be worthy of consideration. But whatever be the motive, it is clear that a parent has no power to divest the infant's estate ; and we discover nothing in the case to induce us to disturb the judgment. Judgment affirmed. Referred to. 5 R. 212. Followed, 3 Barr 263 ; 1 C. 327 ; 23 Smith 144. 454 SUPREME COURT [Sunbury Addlcman against Masterson. It is a fatal objection ton (It-position taken to be read in evidence in a cause, that it is in the handwriting of an attorney concerned in the cause, or specially employed by the party for that purpose, unless the opposite party or his attorney be present and consent thereto. An application and survey may be abandoned, but whether or not, depends on the facts to be found by the jury. The payment of fees of office, of sur- veying fees, and returning the survey, are facts tending to repel the presump- tion of abandonment. An application obtained in 1766, and the land circumscribed by a survey, marked on the ground, but the owner of the survey neglects to have it returned and refuses to pay the surveying fees, and it continued in this way until 1785, when a warrant issued for the same land to another: Held, that the title of the warrantee shall be preferred. EKROR to the special court of Common Pleas of Huntingdon county (Reed, president.) in the court below this was an action of ejectment brought by Anthony Masterson against John Addlcman. The plaintiff gave as evidence of his title ISth May 1784, war- rant to Walter Hood, u for three hundred acres, on a creek running into the Warrior-mark run, in or about a mile from the mouth of said branch and about two miles from the Warrior-mark, in the county of Bedford." 19th January 1785, certificate of the payment of the purchase-money, 30Z. 25th August 1785, deed, Walter Hood and wife to Phineas Massey. 29th March 1787, certificate of the return of survey. 2d October 1795, deed, Phineas Massey to Anthony Masterson. The defendant then gave in evidence. 22d October 1760, appli- cation No. 1629, of Thomas Morris, for three hundred acres, " to join on the westerly a survey on a large run, which leads into the east branch of Little Juniata, about a mile eastward from the path that leads from Little Juniata to Susquehanna, in Cumberland county." William Reed, a former deputy-surveyor of the district, was then called, arid a draft of a survey of the land in dispute was shown to him, which he said he found in the office, when he held it in 1821 ; and that it had upon it the handwriting of Richard Tea, who had been the deputy -surveyor of the district in 1767. lie and all the other witnesses said that the description in the appli- cation of Thomas Morris was precisely descriptive of the land in dispute. 20th April 1767, deed, Thomas Morris to David Kennedy. 4th June 1795, order of the board of property, on a petition for a re,-survey. 80th November 1795, another order of the board of property on the subject. 21st May 1796, return by John Cannon, deputy-surveyor, bv order of the board of property. 31st May 1796,' deed, David Kennedy to Michael Kryder. 18th May 170?, patent to Michael Kryder. 16th October 1797, deed, Michael June 1830.] OF PENNSYLVANIA. 455 [Addleman v. MaatcrHon.j Kryder and wife to John Addleman, the defendant. It was also in proof, that the defendant's survey upon the ground, corresponded with the draft given in evidence, which was found in the office of 'the deputy-surveyor; and upon blocking the trees, they counted back to 1707, when Richard Tea had been the deputy-surveyor of the district. Some evidence was also given to show that Masterson knew of the purchase of the land in dispute by Addleman from Kryder for a valuable consideration, and did not give notice of his claim ; but this was negatived by the instruction of the court to the jury, and their finding. During the course of the evidence, the defendant offered the depo- sition of Col. John Carson ; which was objected to by the plaintiff, on the ground that it was in the handwriting of William Orbison, Esq., tlie defendant's attorney. Mr. Orbison sworn. " I wrote this deposition at the place desig- nated ; I have not a distinct recollection whether Justice Still wa3 in the room all the time.or not ; I remember he was in some of the time ; no one appeared on part of the plaintiffs ; one of the Addle- mans was there ; I was requested by Messrs. Potter and Blan chard to attend to it ; I was concerned in a former suit with Mr. Kiddle as counsel for the defendant ; Mr. Addleman spoke to me. and said he would pay me if I would go and assist him to take this deposi- tion. I did so ; he never paid me anything, and I do not consider myself engaged in this cause as counsel. I did appear as counsel in the cause, and my name is marked." The court overruled the deposition, to which opinion the counsel for defendant took a bill of exception. The counsel for plaintiff requested the court to charge the jury on the following points. 1. That unless the jury arc satisfied that the persons under whom the defendant claims, had a legal survey upon the ground in con- troversy, before the date of the warrant under which the plaintiff claims, the plaintiff is entitled to recover. 2. That unless the jury have satisfactory evidence that a survey was made, by virtue of the application of Thomas Morris, bv the proper deputy-surveyor, before the date of the warrant to \\ alter Hood, the law will presume the application to have been aban- doned. 8. That even if the jury are satisfied that a survey was made by the deputy-surveyor, by virtue of the application of Thomas Morris, previous to the date of the warrant of Walter Hood, yet if no money was paid on the application, but the fees of the office, and no surveying fees paid before the date of the said warrant, and the survey not returned, the jury, under the circumstances of this case, may consider the application and survey to have been aban- doned. 456 SUPREME COURT [Sunbury [Addleman r. Masterson.] 4. That the deputy-surveyor was not bound to return the survey until his fees were paid, and that due diligence has not been used in this case to perfect the title of the defendant, as against the title of the plaintiff. The counsel for defendant requested the court to charge the jury on the following points : 1. That if the jury believe, that the application of Thomas Morris, under which the defendant claims, is descriptive of the land in controversy, and was actually surveyed on the ground in 1767, by the then deputy-surveyor, that the omission of the deputy- surveyor to return the survey into the office until 1795, does not prejudice the defendant's right, and that he would be entitled to hold the land in preference to a subsequent warrant and survey in 1784. 2. That the doctrine of abandonment does not apply to a descrip- tive location of 1766, actually surveyed in 1767, conveyed by deed poll in 1767, re-surveyed in 1796, on an order of the board of pro- perty of 1794, and patented in 1797, and can have no bearing on the present cause. 3. That the draft found in the office of the deputy-surveyor, en- dorsed by Richard Tea, the deputy-surveyor, as the draft of Thomas Morris's survey on his location, in connection with the lines found on the ground, is prima facie evidence that the survey was made on Morris's application ; and unless rebutted by other testimony is con- clusive of that fact. The court in their answers to the several points put by the coun- sel on the one side and the other, left the fact for the jury, whether the delay to have the survey upon the application under which the defendant claimed, returned for nearly twenty years, was the fault or neglect of the party ; and if so, upon the whole case, the plain- tiff was entitled to recover. If it was the fault or neglect of the deputy-surveyor, the party would not be prejudiced thereby. The jury found a verdict for the plaintiff. Blanchard and Potter, for plaintrff in error. Whether the loca- tion was absolutely descriptive or vague, it became certain when it was surveyed ; and there could then be no presumption of aban- donment, although the surveying fees were not paid : Lauman v. Thomas, 4 Binn. 51 ; Lessee of Biddle v. Dougal, 5 Id. 142. The doctrine of abandonment is only applicable to those claims to land which are not founded upon contract, such as improvement rights ; but a location is a contract, which there can be no presumption would be abandoned, unless there be proof of facts which will in- duce the jury to believe that such was the intention of the party : Lilly v. Paschal, 2 S. & R. 395. A deposition written by an attorney in the cause is not excep- tionable on that account ; the case of Summers v. McKim, 12 S. & June 1830.] OF PENNSYLVANIA. 4.07 [Addleman c. Masterson.] Rawle 406, is much stronger than this ; there the deposition was not written in the presence of the justice, here it was, and by one who was riot an acting attorney in the cause. Miles, for defendant in error, whom the court requested to con- fine himself to the first point. No money was paid upon the loca- tion but the mere fees of office, 7s. ; and the jury have found that the surveying fees were not paid, no survey returned for twenty- eight years, and this because of the negligence of the party. No act whatever in relation to the land in dispute had been done by those under whom the defendant claims, for nearly twenty years before the plaintiff's title commenced. The policy of the law will not suffer a man to select a tract of land and just do such acts respecting it, as will not make him liable to pay the Commonwealth for it, but will prevent the Commonwealth from disposing of it to another who is willing to pay for it. That a claim like that of the defendant may be abandoned is fully settled : Gilday v. Watson, 11 S. & R. 340 ; Boyles v. Kelly, 10 Id. 217 ; Chambers v. Mif- flin, ante, 78. The opinion of the court was delivered by ROGERS, J. The rejection of the deposition of John Cannon comes within the principle of Summers v. McKim, 12 S. & R. 410. It is immaterial whether Orbison was concerned in the conduct of the suit or not, as it appears he was specially employed to take the deposition of the witness. There is as much danger from testimony taken under such circumstances, as when the attor- ney is retained generally for the trial of the cause. Nor would it have altered the case if Orbison had been specially authorized to write the deposition. It is not competent for the justice to make the attorney of one of the parties his clerk to take a deposition, un- less with the express consent of the other partv, or in the presence of his attorney and acquiesced in by him. We concur in the sen- timents of the chief justice in Summers v. McKim, and feel no disposition to relax the rule established in that ca.se. The remaining exceptions apply to the charge. It is said the court were in error in instructing the jury that they might presume an abandonment of the defendant's right, under the application of Thomas Morris. It was in evidence that on the 22d October 17(>t>, Thomas Mor- ris made application for three hundred acres of land, to join westerly a survey on a large run, which leads into the east branch of the Little Juniata, about a mile eastward from the path that leads from Little Juniata to Susquehanna, in Cumberland county. It was submitted to the jury as a question of fact, whether there had been a survey made on the ground, whether the survey had been returned and if not returned the reason it was not. The 458 SUPREME COURT [Sunbury [Addleman r. Masterson.] court was requested to say : that unless the jury had satisfactory evidence that a survey was made by virtue of the application of Thomas Morris, before the date of the warrant to Walter Hood, the law will presume the application to have been abandoned. That even if the jury are satisfied that the survey was made previously to the date of the warrant to Walter Hood, yet if no money was paid on the application but the fees of office, and no surveying fees were paid before the date of the warrant and the survey was not returned, the jury, under the circumstances of the case, may consider the application and survey to have been abandoned. The court were further requested to charge the jury that the doctrine of abandonment does not apply to a descriptive location (which it was contended this was), of the year 1766, actually surveyed in 1767, conveyed by deed poll in 17(37, re-surveyed in 1796, on the order of the board of property of 1794 and patented in 1797. It was given in charge to the jury, that an application and sur- vey may be abandoned. That whether there was an abandonment or not, depended on the facts found by the jury ; but that pay- ment of fees of office, of surveying fees and returning the survey, are facts tending to repel the presumption of abandonment. That if the application was obtained in 1766, and the land circumscribed by a survey marked on the ground but the owner of the survey refused to have it completed or returned, and refused on that ac- count to pay the surveying fees, and it continued in this way until 1785, when the warrant issued to Walter Hood, on which he made his survey, the latter would have a preference. In this direction we perceive no error. On the contrary, the charge of the court is in accordance with all the cases, many of which have been cited and relied on in the argument of counsel. The transaction must be viewed as it stood in 1785, when Walter Hood obtained his warrant and made his survey. It is only by shutting our eyes to the state of things at that point of time that any difficulty can arise ; for the real question is, might the jury presume the application to have been then abandoned or was Morris right in considering the application abandoned when he obtained his warrant. In 1785, as the jury have found, although Morris had made an application for the land and had made a sur- vey, yet the survey had not been returned, because the owner of the survey had not paid the surveying fees. The failure to return the survey is not the fault of the deputy-surveyor, but arises from the act or neglect of the party himself, for the deputy-surveyor, as has been decided, is not bound to return the survey until the surveying fees have been paid. It would have the most mischievous effect if it were competent to an individual to put in an applica- tion on which he pays no money to the Commonwealth with a description which may apply as well to other tracts, have a survey made upon it and then by his own act or neglect, without any June 1830.] OF PENNSYLVANIA. 4,09 [Addlemsn v. Masterson.] default in the deputy-surveyor, withhold the return of .survey for near twenty years. It would operate very much to the injury of the Commonwealth, as it would enable individuals to obstruct the improvement of the country, by preventing the Commonwealth from making a new grant of the land. Even a precisely descriptive- warrant must be followed up with reasonable attention, in order to give title from its date ; so also the same course must be pursued on a vague warrant, to give title from the time of survey. If the owner of a vague or removed warrant suffers it to remain un re- turned, for more than twenty-one years, and during that time has exercised no acts of ownership upon land, the state, or any person, has a right to consider it as derelict, and whoever purchases and pays for the land, under such circumstances, has a good title : Chambers v. Mifilin, ante, 74. Mr. Justice Huston, in delivering the opinion of the court, says, " although a warrant has been sur- veyed, yet if not returned, the owner may change its lines, or change its place altogether, and lay it on any other vacant land any where near ; until it is returned, the state has no power to collect arrears of purchase-money. It never can be that a man can wait thirty or forty years, and all that time be able to say this is my land if I please, and not mine unless I please. I will take the land and pay the state for it, if the country improves, and it rises in value, or if somebody will render it valuable by improvement ; but I will not take it, and pay the purchase-money, unless something occurs to render it more valuable. Nor is it the law that a man can com- mence procuring a title from the state, and from pure negligence leave it in such a situation for more than twenty years, as that he is not bound to take it, and no one safely can." The plaintiff in error relies upon the re-survey in 1700, on the order of the board of property, in 1794, and the patent in 1797 ; and this to be sure would be strong evidence, that after 1785 the owner of the application would not wish to be considered as having relinquished title to the land. But it must be kept in view that previously to this time, the right of Walter Hood had intervened; and that nothing the plaintiff in error could have done afterwards would affect that right. The question must be determined upon the titles as they stood at the time of the warrant and survey to Walter Hood. Judgment affirmed. Roforred to. 4 W. 140; I Jones 113 ; 11 Smith 4M. Commented on, 12 II. '279. Distinguished S W. 98, W. Distinguished and commented on, 4 W. &. S. 77. Followed, 2 P. & W. 202, 3'J5 ; 3 Id. 44 ; 5 W. 525 ; 1 W. A S. 173 ; 1 Jones IIU ; 11 H. 277. 460 SUPREME COURT [Sunbury Holdcn et s\.against Bull. A judgment entered upon a bond, in the penalty of $100, with a warrant to confess a judgment, having a condition thereunder written, that the obli- gor will pay a tine and bill of costs, then uncertain us to amount, is valid. If an execution issues upon such a judgment for the penalty, before the real amount due is ascertained, it will be set aside on a writ* of error. ERROR to the Common Picas of Bradford county. Sortile Holden, together with Gustavus A. Holden, as his secu- rity, executed a judgment-bond to " the treasurer of Bradford county for the time being," in the penalty of $100, with the following con- dition thereunder written. " That the said Sortile Holden, one of the subscribers, shall well and truly pay, or cause to be paid, a certain fine and bill of costs, agreeably to the sentence of the Court of Quarter Sessions, passed upon the said Sortile Holden, in consequence of a suit in behalf of the Commonwealth against the said Sortile Holden, upon which said Holdcn was in prison, and this instrument is taken to cover fine, and all costs which accrued in consequence of said suit. Wit- ness, &c." The fine and costs not having been paid, the judgment-bond was filed, and a fieri facias issued thereon, when this writ of error was sued out by the defendants, who assigned the following errors. 1. The judgment is entered on a bond or promise, conditioned for the performance of matters contingent, doubtful and uncertain, and which require pleadings and trial. 2. The face of the instrument shows the execution issued for a sum of money, which was not judicially decreed to the plaintiff Ingham, for defendant in error, whom alone the court heard on the second error assigned, contended that a writ of error was not the proper remedy of the party in a case like this. There was no intention to collect more than the fine and bill of costs off the de- fendants, and if there was any injury likely to result to them, their proper remedy was to apply to the court below to protect them, or even a judge at his chamber may grant relief: Lewis v. Smith, 2 S. & R. 142 Judgment affirmed, and execution set aside. Referred to, 8 W. 135. June 1830.] OF 'PENNSYLVANIA. 461 Stewart et al. against Baldwin. Costs are not recoverable by either party in an action of partition. Costs are exclusively a matter of statutory creation. ERROR to the Common Picas of Tioga county. This was an action of partition brought by Elcazcr Baldwin against Nathan Stewart and John Bruce, in which the defendants plead non tenent imimul. The cause having been tried by a jury, a verdict and judgment was rendered for the defendants. A fi. fa. was then issued against, the plaintiff for costs, including a bill of defendants' witnesses, amounting to $276. 1*7. The plaintiff's counsel obtained a rule to show cause why the fi. fa. for costs should not be set aside ; on the ground that costs are not recoverable in an action of partition ; which at a subsequent term was made absolute. The defendant then sued out this writ of error. Greenough, for plaintiff in error. A declaration in partition always concludes to the damage of the plaintiff : Plead. Asst. 304. If damages are recoverable so are costs. If then the plaintiff may recover costs, the stat. 23 Hen. 8 gives costs to the defendant. Between coparceners damages in partition are not recoverable, but in other cases, where the right to have partition is denied, they are : 2 Bac. Abr. 45, 206; stat. 17 Edw. 3, ch. 71. Parsons and Willeston, for defendant in error. No damages or mesne profits are recoverable in an action of partition, but may be in account-render: 2 Bac. Abr. 44; Roberts' Dig. 207. The stat. 23, Hen. 8, has been restrained to cases of personal wrong: Penn. Prac. 150 ; Sayer on Costs, tit. Coparceners ; Common- wealth v. Commissioners of Philadelphia, 8 S. & 11. 155. Costs are never recoverable except by a statutory provision. PER CURIAM. We have inquired into the practice since the argument, without having ascertained that there has been a depar- ture from the provisions of the English statutes, according to which costs are not allowed in partition ; and however unreasonable this may be, yet costs being exclusively a matter of statutory creation, it is plain that the remedy lies not with us, but with the legislature. The judgment for the defendant without costs was therefore regular. Judgment affirmed. Followed, 1 C. 347, 348. 462 SUPREME COt/RT [Sunbury Commonwealth ayaimt Fisher. Same against Kichter. Same against K reamer. Same against Dcwurt. An application by the owners of property, under the Act of 9th April 1827, for damages done by the location and construction of the Pennsyl- vania canal, is premature, if made after the completion of the canal upon the land of the petitioner, and before the completion of that division of the canal upon which such lands are located. The right of the state to take and use for public purposes, six out of every hundred acres of land sold, is not an implied right but an express reser- vation ; the state infringes upon no private interest, nor does it injure any man by using this right ; the utmost that can be required is, that it should pay for improvements put by the owner on such part as the state should subsequently use. When an Act of Assembly requires reasonable notice to be given, by one party to the other, ten days generally would be sufficient. The Acts of the 25th February 1H26, and 9th April 1827, on this subject, are to be construed in connection with each other, and by such construction it is necessary that the viewers appointed to assess the damages done to the land of an individual, should, in their report, state the courses, distances and quantity, with such references as will designate the exact property converted to the use of the state. When the approval of a Court of Quarter Sessions is required by an Act of Assembly to an assessment of damages, that court will not readily set aside a report, on the ground that the damages are excessive, yet it may be- come their duty so to do. It would be a much stronger case which would authorize the Supreme Court to set aside a report on that ground. All below high-water mark, in the channel of the Susquehanna river, is a public highway, and the state has a right to improve it by deepening it, or it may raise dams in it, and thus swell the water; and if in so doing, a spring which rises below high-water mark is covered and which an indi- vidual has been accustomed to use, he cannot recover damages therefor, under the Act of Oth April 1X27, it is damntim abxque injuria. The sixth section of the Act of the 10th April l, gave authority to the commissioners to take releases to the Commonwealth from individuals, through whose lands the canal might be thereafter located. The consideration of such releases, so taken, has not failed, because the eastern and western waters have not been united by that route of the canal, along which the rcleasors live. The consideration is, that the canal shall pass through the land of the releasor. IN each of those cases a certiorari was issued, at the instance of the Commonwealth, to the Court of Quarter Sessions of Union county, to remove the proceedings which had been instituted by the defendants severally, to recover damages for injuries done to their property, by reason of the construction of the Pennsylvania canal. The same exceptions which were filed in the court below to the confirmation of the several reports, and there overruled, were relied upon here. 1. The application was not authorized by law, having been made before the completion of the canal. June 1830.] OF PENNSYLVANIA. 403 [Commonwealth . Fisher.] 2. Tho work on the several sections stated in the petition, was not completed when the application was made ; nor had the said sections been taken off the hands of the contractors by the canal commissioners. The contracts for making fence on said sections had not been complied with. 8. Reasonable notice of the time and place of meeting of the viewers, was not given to the nearest acting canal commissioner. 4. The viewers did not ascertain the quantity, or describe the boundaries, of the land by them valued ; nor the quality, nor dura- tion of the estate and interest of the applicant to the same, agree- ably to the Act of Assembly. 5. The damages are exorbitant, and were assigned without any evidence produced before the viewers. There was added in Richter's Case, an exception to the allowance of damages for injury done to a spring, by the backing of the water of the creek upon it. And in Dewart's Case, there was this additional exception, " that he had executed a release to the Commonwealth of all damage, pre- viously to his application." Lashells, for the Commonwealth. Donncl and Grreenough, with whom was Sterrett, for the claim- ants. A statement of the whole case, of the several Acts of As- sembly in relation to it, and the positions taken on the one side and the other, are contained very fully in the opinion of the court, which was delivered by HUSTON, J. If the first exception is sustainable, it will be un- necessary to consider the second. By the Act of the 2">th Febru- ary 1826, the canal commissioners were authorized to locate, and contract for making a canal, locks and other works necessary thereto, from the river Swatara, at or near Middletown, to or near to a point on the east side of the Susquehanna opposite the mouth of Juniata; and another portion from Pittsburgh to Kiskiminitas. This act is entitled an act to commence a canal, to be constructed at the expense of the state, to be styled u Tho Pennsylvania ( 'anal." On the 9th April 18:27, was passed, an act to provide lor the fur- ther extension of the Pennsylvania Canal. The first section pro- vides for extending one part, from the eastern section up the .luniata to Lewistown ; another up Kiskiminitas and Conemaugh. from the western section of the Pennsylvania Canal to Hlairsville ; and also, a canal, locks and other works necessary thereto, up the vallev of the Susquehanna, from the said eastern section of the Pennsylvania Canal, to a point at or near Northumberland: to be selected with due regard to the accommodation of the trade of both branches of the river. It is on this last the lands for which damages are claimed are situate. It was asking a great deal from this court. 464 SUPREME COURT [Sunbury [Commonwealth v. Fisher.] when we were required to believe, that from Middletown to Juniata, made the year before, was not here called the eastern section ; and that it was impossible to ascertain from the law, that it included all that part of the Pennsylvania Canal between the mouth of Juniata and Northumberland. The 8th section provides, "that if any person shall consider him- self aggrieved by reason of the canal passing through lands of which he is the owner, or by interfering in any manner with his rights of property, he may at the completion of the work thereupon, or within one year thereafter, petition the Court of Quarter Sessions of the county in which the damage has been committed, and the said court shall thereupon appoint five reputable citizens within the judicial district, of which the said county is a part, and not residing in said county, &c." It was contended on one side that the phrase, " completion of the work thereupon," meant the completion of the work on that part of the canal which ran through the land of the petitioner ; and on the other, that it meant the completion of the work on the canal from the eastern section to Northumberland ; and we are of opinion, that both the literal meaning of the words, and the whole spirit and scope of the act, require this latter construction. The viewers are to view the premises, and taking into consideration the advantages of said canal to the petitioner, report such damages, if any, as they or any three of them shall think the owner has sustained by reason of said canal ; and in case the said viewers are of opinion, the said petitioner has received no damage, or that the advantages derived from the canal are a sufficient compensation to the petitioner for any injury sustained by him, they will also report the same to the said court, &c. Now it is utterly impossible that there can be any advantage from an unfinished canal ; it must be completed and the water in it, before any advantage to the community or to an indi- vidual can be derived from it. This construction has, we believe, been put upon this law by every tribunal before whom it has come, except the court of Union county. But the petitioners have endeavored to raise a great question ; that the state could not take their lands without compensation ; and that compensation must be in money, and must be paid instantly ; nay, it was even intimated that the damages ought to have been paid before any damage was done. Although the petitioners and their counsel have most carefully forgotten certain facts, this court is bound to remember them, if they form a part and an essential arid prominent part of the law of the land. From the first settlement of this country, both under the proprietaries and the state, the invariable usage and law was, in the sale of vacant land to any applicant, to add six acres for every hundred, for roads, &c. These six acres were never paid for by the applicant; they were not any particular and specific or desig- nated six acres, but they were thrown in, that whenever the June 1830.] OF PENNSYLVANIA. 4Go [Commonwealth . Finher.] Commonwealth thought a public road necessary, through any part of the state, it might make it without interfering with the private right of any individual. The right of the state to take six acres out of every hundred acres sold, is not an implied right hut an express reservation. It infringes no private right nor does it injure any man by using this right. The very utmost which can be required is, that it should pay for improvements put by the owner on the part afterwards used by the state. When the state authorized private corporations to make turn- pike roads or canals, it compelled them to pay for the land occu- pied by such road or canal, for such corporation was very dif- ferent from the state ; its rights were very different ; no reser- vations had been made for its use, no contract for its benefit. But when the state itself undertook to make public canals, its right was unquestionable. These petitioners, then, ought to be grateful for a bounty given them by the state; to be thankful rather than presumptious ; to acknowledge kindness rather than to assume the attitude of injured persons. If this were not so, if the state had no right to the six acres in every Ijundred and was bound, in the strictest manner to pay for the part appropriated for general and public use, until the canal is completed, it eannot be known how much will be required nor whether in addition to the pnrt actually occupied, injury will or will not be done to the adjacent lands, nor whether great value may or not be added to the residue of the farm. There was a time and there is a case, when some, in their over- weening fondness of new and undefined power, spoke of a great state and the government of a nation, as lightly as of the acts and authorities and responsibilities of a petty corporation, of the power to make laws for the general welfare and binding the whole community, as no greater in degree than the resolves of a petty borough. It was forgotten that the latter was restricted by legis- lative enactment and the former was the enacting power, with authority unlimited, except in a few particulars, and not answer- able for its acts except to those from whom it received its power, the people. What the government conceives is for the public good, it may do ; what that public good requires, it may claim, and how compensation is to be made, how it is^o be ascertained and when to be made, must, from the very nature of tilings be directed by that very government itself. It may seem pretty to talk of regulating all this by five men or a Court of Quarter Ses- sions, but although pretty to talk about and pleasant to imagine, and profitable too, to some, it is not to bo carried farther than a little talk and discussion. If ever it shall happen that any actual in- jury or injustice is done to any citi/.en and his case is brought before this court, he will receive mlress to the extent of our power. 1 P. & W. 30 4G6 SUPREME COURT [Sunbury [Commonwealth r. Fisher.] There is nothing like that here ; the whole proceeding is calcu- lated to prevent the possibility of injury to the citizen in theory ; and in practice, has resulted in injustice to the community. The best thing which could happen to a man was, that he could have some pretext for putting his hand into the treasury ; if he is de- layed by having proceeded irregularly, too soon, or illegally, an outcry is raised as though the country was invaded. Questions on constitutional law are sometimes grave and impor- tant, but such occur seldom. Occasion, however, is often taken to discuss them as applicable to matters on which they have no bear- ing, which are in themselves among the ordinary subjects of legis- lation ; in fact, it is a standing topic, always dragged in where there is nothing else to be said ; and certainly in this state, it is a ludicrous rather than a serious objection to any measure; I mean as it is commonly applied. The third objection is to the notice to the canal commissioners. The act requires reasonable notice ; ten days, generally, would be reasonable notice ; but if several petitioners would hold views on the same day, no notice would be reasonable ; so if given to attend when from particular occurrences it was well known that the canal commissioners could not attend. The fourth exception is important, and the proceedings are in this particular totally defective. The Act of 25th February 1826 directed the damages to be ascertained by an inquisition, who were directed to ascertain also and describe the bounds of the land by them valued, and the quality and duration of the interest and estate in the same required by the board of canal commissioners for the use of the state ; and it provides that on payment there- for, the state shall be seised of such lands as of an absolute estate in perpetuity or of such less quantity and duration of interest or estate in the same or subject to such partial or temporary appro- priation, use or occupation, as shall be required and described as aforesaid as if conveyed by the owner or owners. And as acts on the same subject are to be construed in connection, the only altera- tion introduced by the 8th section of the Act of IHh April 1X27, as to this particular is, that the five reputable citizens are substi- tuted for the inquest. The state is still to pay for the land, and it is still requisite that it should appear of record what she has paid for and to what sfie is entitled. The report must take its courses and distances and quantity with such references as will designate the exact property converted to the use of the state. The title which the applicant has for the land must also be always stated. To apply for damages for injury done by sections thirty-nine and forty or part of forty is no description ; no record is or will be kept of such sections ; where each began and ended was once marked by a small stake driven into the ground as a direction to the laborer, but these are not now to be found or soon will disappear. June 1830.] OF PENNSYLVANIA. 4G7 [Commonwealth v. Fisher.] That the damages are exorbitant is another exception. There is no specific evidence before this court on this subject, except that lands are valued at above $liJO per acre, when we know they seil at much less than one-half that price. The report is to be ap- proved by the court ; this implies consideration and judgment : and although a court would not readily interfere on this account, yet it may become their duty so to do. It would be a still stronger ease which would justify this court to set aside proceedings on this ground ; but I will not say we would not be compelled by a sense of duty so to do in some cases. I am afraid the viewers have been induced, somehow or other, to put a wrong construction on the Act of Assembly; they are bound to take into view the advantages of the canal to the petitioner ; now if he values his whole tract of land five or ten dollars per acre more than he estimated it to be worth before the canal was made, this is the value of the canal to him ; and it is inconceivable how an honest man can, on his oath, say a person has sustained damage by a canal which has increased the value of his estate five or fifteen hundred dollars. As to Richter's spring, I do not know that we have facts enough before us, from which to form a satisfactory opinion. This much however may be said : all within the channel of the river is a pub- lic highway, except the islands. The state, for the purpose of im- proving 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 entirely 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 of a large navigable stream. It is no uncommon thing to find springs between low and high-water mark, along the Sus- quehanna, and such are often a matter of convenience at some sea- sons of the year, to those who live near; but the state never sold any land below high-water mark, and it is ridiculous to talk gravely of a great national work being obstructed, because a man u ill be deprived of the use of what was never his own. The additional exception in the case of Lewis Pewart, remains to be considered: "that he had executed a release to the Common- wealth previously to the date of his petition for the appointment of viewers." That release was In these words : u Know all men by these presents, that we, the subscribers, for and in consideration of the benefit to be derived to us from the Pennsylvania canal passing through our land, or in the neighborhood 468 SUPREME COURT [Commonwealth v. Fisher.] thereof, have agreed, and hereby do agree with the Commonwealth of Pennsylvania, each for himself, his heirs and assigns, that the said Commonwealth's commissioners, engineers, superintendents, workmen, or others employed by or under the authority of the Com- monwealth, may freely, and without charge, enter upon, occupy, use and keep so mujh of our land as may be deemed necessary for a canal, and for the basins, locks, towing-paths, embankments and other devices whatever, which may be necessary therefor, and such portion of land on each side, not exceeding in width fifty feet, as mav be required or thought convenient ; and may freely and with- out charge enter upon any part of our land, and take therefrom, for the use of the Commonwealth, all such stone, earth, or other materials whatever, excepting timber, as may be found needful or useful in the construction of the said canal and works ; and we do hereby remise, release, and for ever quit claim to the Commonwealth, all, and all manner of claim or demand for damages or compensa- tion for land so taken or occupied ; for stone, earth or other mate- rials, excepting timber, taken or used ; and for all and every injury that may be sustained, by reason or in consequence of such occu- pation and taking, or of entering upon and taking materials, or of excavating our land for obtaining the same, or otherwise howso- ever.'' The counsel for Mr. Dewart insisted that the commissioners had no power to take a release. This must have been insisted on before reading the 6th section of the Act of the 10th April 1826, which expressly directs the commissioners to call upon, or direct to be called on, and receive from all and every person or persons, as far as conveniently can be done, who are the owners of land along or near the several proposed lines of communication between the eastern and western waters, acquittances or releases from any claim to dam- ages, in case the said line of communication shall pass through their land, or for materials which may be taken to carry on the work. The principal objection, however, was founded on the as- sumption of the fact, that the release was signed under the idea that a water communication could be made the whole distance to Lake Erie, and that communication would be through the lands of the signers, and by the way of the west branch of the Susquehanna. It may be admitted that some persons on the Juniata once said a communication by water could be made on that route ; that some persons on the west branch said there could be a connected water communication by that route, and that each was believed by those who knew nothing of the route, and had never crossed the Allegheny Mountains ; but it is not admitted that any man of sense, who knew the country, and who was not blinded by his interest, ever said so, or thought it practicable; nor did any engineer. Nor is it true that our Acts of Assembly sanction the idea that one canal June 1830.] OF PENNSYLVANIA. 40r Cayuga lakes; one other through Cumberland and Franklin coun- ties to the Potomac ; one other to the Potomac by Conewago, and one to connect the proposed Chesapeake and Ohio canal with the Juniata route. Under this act, Mitchell, Geddis, and others, had examined the head waters of the Susquehanna, and there remained* no doubt on the subject; it was certain no continued water communication could be made. But a clamor was raised by those on the west branch, of whom such conduct might have been expected, and some of whom it ought not to have been expected, which drove from the state one of the best engineers ever in her employ, and a man of as much honor as capacity : I mean James Geddis. On the 25th February 1820, we find the next act. The people on the Juniata had sense and honesty enough, to have by this time admit- ted there must be a portage on that route : some few on the west branch, still clamored about an entire water communication, and insisted loudly, that if a portage was necessary, it would be easier and shorter by that route : but I deny that, at that time, one man of sense in the state, believed in the practicability of a water com- munication, connecting the eastern arid western waters. The pre- amble to that law has been relied on, u Whereas the construction of a canal for the purpose of connecting the eastern and western waters, is believed to be practicable, " &c., not a canal connecting, but " for the purpose of connecting:" and it directs the part from Middletown to the Juniata, and from Pittsburgh to Kiskiminitas to be begun. The next act on this subject is that of the 10th April 1820, the sixth section of which I have before recited, and which authoiizes the taking of releases. Every man in the legislature, and every well informed man in the state, at that time, knew that it was contem- plated to go to Pittsburgh, by the Juniata route ; and also to go up the Susquehanna, and up both branches of it, the first to facilitate the trade with the western states, and the latter for the benefit f our own citizens. Although the work on both branches is now par- tially suspended, it is only suspended. In all countries, in all ages, those who have improved the navigation of their country, or con- structed canals, have been considered the benefactors of their country, and their policy the wisest and the best. Clamor and sectional feeling, and narrow local policy may interrupt the improve- ment of the state, and have interrupted it, but the counsel and the court have spoken without authority when they say it is abandoned. 470 SUPREME COURT [Sunbury [Commonwealth v. Fisher.] I am not sure it was not wise to suspend it until what was begun should be completed. There is nothing more unsafe than to throw away the release itself, its plain and obvious meaning, and to look for its construction in preambles to Acts of Assembly, or judge of it from party squab- bles. It is made " in consideration of the benefit to be derived from the Pennsylvania canal passing through our lands," not one word about eastern or western waters, nor allusion to them, or the connect- ing them by continued water communication, or portage by land ; nor a word about the northeastern branch of the Susquehanna. The Pennsylvania canal does not pass through the lands of the petitioner, and is in progress up each branch of the Susquehanna, his release therefore takes effect. It is obvious the petitioner assumes positions somewhat inconsis- tent with each other ; first, he says he must be paid before the whole canal is completed ; nay, before that section is completed which passes through his lands ; and next he says, his release is not to bind him, because the canal is not completed, and no appropriation for putting any more of it under contract this year ; in every way he asks to gain. We are of opinion that this release is too plain to admit of doubt and for ever estops the applicant from demanding from the state, what has solemnly been released to it. But it is said, that he did not own all the lands, for which the viewers have given damages, at the time he executed the release. The record, however, exhibits nothing on this subject : it is true his counsel have offered to us a deed for part of the lands, dated in 1827, a year after the release. This is not regularly before us, nor, if it was, is it quite conclusive that he did not own the land in fact, a year before he got his deed. Something has also been said about his owning another tract in the neighborhood, which he gave in exchange for this : how far, or whether in any way, a man who has released can get clear of the effect thereof by exchanges of property, is not before us ; and we say nothing of its effect. Some of the land he owned when the release was executed ; it is all valued together. The objections to the proceedings in the other cases, particularly the defect of desig- nation in the report of viewers, apply to this. Proceedings in all the cases reversed. Overruled in part by Commonwealth r. McAllister et al.* '2 W. I'.M). Referred to, 6 Wh. 44, 40 ; 7 C. 43 ; J C.181 ; 11 Wr. 332 ; 10 Smith 343. Probably referred to, G W. & S. 115, and commented on 117, US. Commented on, 8 Hurr 453. Affirmed, 16 Smith 45 ; 31 Id. 86, s. c. 2 W. N. C. 716. Followed, 1 W. 48. 353 ; 7 Phila. 641 ; 31 Smith 174 ; s. c. 3 W. N. C. 226. June 1830.] OF PENNSYLVANIA. 471 Smith against Johnston. By a sale, conveyance and delivery of possession of land, the grain grow- ing thereon does not pass to the vendee. WRIT of error to the Common Pleas of Columbia county, where it was an action of trover, brought by Michael Smith against James Johnston. The case was this : Charles Clark being the owner of a farm, had leased it to Michael Smith, the plaintiff in error, who was also the plaintiff below, for one year, which was to end on the 1st April lN:i8. The terms of the lease were, that the tenant was to deliver a certain portion of the grain to the landlord, in the bushel. In the month of February 18-8, Clark sold the farm to Johnston, the defendant, and conveyed it to him by deed in common form. Johnston went into possession on the 1st April 18:28. The question of law which arose in the case was, whether Johnston, the purchaser, was entitled to the landlord's share of the grain in the ground, which was reaped in the harvest of 18:28. The court below was of opinion, that the deed from Clark to John- ston, conveying the farm, " and the rents, issues and profits thereof," vested the right to the landlord's share in the purchaser of the land, and the jury found accordingly. Friclc, for plaintiff in error, contended that grain growing in the ground is personal property, and will not pass by a conveyance of the land : Toll. Law of Ex. 149. By the Act of Assembly, a sher- iff's deed conveys real estate as fully as the defendant could convey it ; and it was held in Myers v. White, 1 Itawle ^.">fj, that a sale bv the sheriff of land, upon a levari facias on a mortgage, did not pass the grain growing thereon. The right to the grain was a personal right, which accrued to the landlord the moment the grain was sown. Cr/vVr, for defendant in error. The conveyance of the land, and the rents, issues and profits thereof, is a conveyance of everything growing upon the land : Foote v. Colvin, 8 Johns. 11. '2'2'2. The opinion of the court was delivered by UIHSON, C. J. It is a little remarkable that the precise point in this case has not been decided in England or this country. The reason mav be, that the subject is usually disposed of by some pre- liminary stipulation. There is, indeed, a dictum of Mr. Ju-tiec Spencer, in delivering the opinion of the court, in Foote r <'.>lv;n, 8 Johns. '2'2'2, that a sale of the land simply, by the owner of both the land and the crop, carries the crop to the purchaser; which, with great respect for the opinions of that learned judge, seeni^ to be unsupported by decision or analogy. Mr. l\.>l>eits is the only elementary writer who asserts that the products of the soil, whether 472 SUPREME COURT [Suntwry [Smith v. Johnston.] spontaneous or cultivated, accompany the freehold until they are actually severed, unless when sold in prospect of such severance ; and the cases referred to in the margin of the books, Roberts on Frauds 126, certainly does not prove that corn growing is as much a part of the freehold as grass or timber trees ; or that it is part of the freehold at all. On the contrary all the authorities agree, that as against the heir, it goes to the executor, though it seems to be settled that it passes by a devise of the land, and. in conformity to authority, it was so determined by this court, in McCullough's Ap- peal, 4 Yeates 23. The reason for this distinction, attempted in Gilbert's Evidence, 350, is that "every man's donation being taken most strongly against himself, shall pass not only the land itself but the chattels which belong to the land ; but no chattels can descend to the heir ; they go the executor. Why this is accounted a chattel, we have shown already." And in doing so, he had just given a few quaint, but substantial reasons why corn growing does not belong to the land. " It follows," the chief baron had said, " that there ought to be another property in the corn, distinct from the land, inasmuch as there is labor in acquiring and sowing the corn distinct from the labor whereby the land was at first occupied and gotten ; also, there is a distinct charge in sowing the corn ftom the money whereby the land was purchased. The law, following nature, doth erect a dis- tinct property in the corn, different from the land." And again, " there is a property in the corn, distinct from the soil, before the corn is committed to the earth, and that property is not lost by sow- ing in a man's own soil ; for I cannot lose the property of what is my own, by putting it in a place which is also :ny own. But if I sow my corn in another man's soil, it ceases to be mine. Still fur- ther : " Because a man expects a yearly return of the corn he sows, it is reckoned part of his personal estate, as the corn was before it was sown. But otherwise of timber trees planted, for they must be supposed to be annexed to the soil, since they were planted, with the prospect that they could not come to their full use and perfec- tion, till many generations afterwards." Thus far Chief Baron Gil- bert, who gives good reasons why the growing crop should be con- sidered a chattel, in contradistinction to timber trees ; and satisfac- torily exposes the foundation of the rule by which a tenant having attempted to retain the ownership of the land after the expiration of his estate by sowing it out of season, loses the crop, as in the case of an adverse recovery ; but who, in the opinion of Mr. JIargrave, is less happy in accounting for the distinction which gives corn grow- ing to a devisee, but denies it to the heir : Co. Litt. 55, b. note 2. The truth is, the distinction rests altogether on authority, but au- thority so unquestionable as not to be shaken. Even in point of reason, however, a further distinction might be taken between a will, in the construction of which a presumption of intention may be raised from circumstances, and a deed of which the construction is to be made from the technical effect of the words. Now in Poole's June 1830.] OF PENNSYLVANIA. 473 [Smith v. Johnston.] Case, 1 Salk. 368, corn growing is said without qualification to be a chattel ; and the same thing is asserted in Whipple v. Foote, 3 Johns. 452 ; Newcomb v. Ranier, Id. in note, arid Stewart v. Dough- erty, 9 Johns. 108, as well as by Chief Baron Gilbert in the passage** just quoted. As a chattel, then, there is no reason why it should pass by a bargain and sale of the land, which would not be equally applicable to cattle depastured on the land. But whatever may be the law in England or our sister states, it is clearly settled by usage and judicial decision here, that, except by devise, the crop docs not pass as parcel of the land. The practice of reserving the crop has, I believe, been universal ; insomuch that when the reservation is not expressly declared, it is nevertheless a tacit condition of the con- tract. In the very case at bar, it appears from the evidence sent up, that the vendee had no thought of claiming the crop, till it was suggested by a neighbor. In accordance with the popular notion, grain in the ground was treated as a chattel, in Welsh ?. Becky, 1 P. & W. 57, and subjected to the rule which requires an actual or symbolical delivery in the case of a conditional sale. Still nearer to the point is Myers v. White, 1 Rawle 353, in which it was deter- mined that the sheriff may not sell grain in the ground, by virtue of a levari facias on a mortgage ; and in Stambaugh r. Ycates, 1 MSS. Charnbersburg, 1828, it was held that, although it may be sold as personal property on a fi. fa., it docs not pass by a levy and sale of the land on a venditioni exponas. According then to an incontestible principle asserted in Foote v. Colvin, that a sale on an execution passes whatever the debtor might pass by a volun- tary conveyance, the preceding case is substantially in point. If the crop be an accessary of the land, it will follow its principal as readily by the one conveyance as the other ; if it be not, I know not how it is to pass by words inapplicable to it in either. It seems, therefore, the judge who tried the cause, erred in directing the jury, that in the absence of an actual reservation the crop would go to the vendee. Judgment reversed, and a venire* de novo awarded. 1 Stambauph v. Ycates, 2 R. 161. Overruled, 7 W. 379, and see 9 W. 47 ; 5 C. 68. Commented on 3 P. & VV. 501, 502. In Cobol r. Cobel, 8 Barr P>4r.. John- ston v. Smith 3 P. & W. 496, is referred to us overruled ; the principal oa> is probably the one intended. 474 SUPREME COURT [Sunbury Chew's Ex'rx against Mather's Adm'r. B. C. sells, by articles of agreement to J. M. a tract of land, for which he is to execute a conveyance upon the payment of the purchase-money, for which he takes a judgment-bond from J. M. Subsequently, B. 0. enters the judgment-bond, issues a fi. fa., levies upon the land, which is afterwards sold by the sheriff, and B. 0. becomes the purchaser fur a sum less than one- half of the judgment. Held, that such sale and purchase is an equitable extinguishment of the whole amount of the judgment. ERROR to the Court of Common Pleas of Columbia county. This was a scire facias to revive a judgment, to which the defend- ant plead payment, with leave to give the special matter in evi- dence. The defendant, to support the issue on his part proved that the consideration of the original judgment-hond, was a tract of land, sold by the executors of Benjamin Chew, deceased, to the defendant in 1818, by articles of agreement, by which it was stipulated tfcat Mathers was not to get a deed for the land until the purchase-money was paid ; that in 1821, a fi. fa. was issued upon that judgment, which was levied upon the land so sold by the plaintiff to the de- fendant ; that in 1823, a venditioni exponas was issued, upon which the property was advertised for sale by the sheriff; that while the crier was offering the property for sale, the plaintiff's attorney was inquired of what kind of title the purchaser would get, whether the executors of Benjamin Chew, deceased, would make a deed to the purchaser ? To which he answered, that the purchaser would get the title of the defendant, Mathers, subject to the payment of the purchase-money. The persons who made the inquiry then refused to bid, and the property was struck down to the plaintiff's attorney, for 3'JoO, and a deed was subsequently made arid acknowledged to the plaintiff. The plaintiff claimed to recover in this suit the amount of the original judgment, after allowing a credit of the $950, for which Mathers' title sold by the sheriff. But at all events he claimed to be entitled to recover the amount, after allowing the defendant a credit for the real value of the land at that time, to be estimated by the jury. The court below (Chapman, president), was of opinion, and so instructed the jury, that if they believed the land was sold subject to the payment of the purchase-money, on the original contract between Chew and Mathers, and bought in by the plaintiff, that it was an extinguishment of the whole judgment, and the plaintiff could not recover. The jury found for the defendant. The opinion of the court was assigned as error. June 1830.] OF PENNSYLVANIA. 47o [Chew's Ex'r. v. Mathers'a Adrn'r.] Grier, for plaintiff in error. The facts of this case do not create a letjal extinguishment of the debt ; and equity will not inter- fere to protect the defendant against a compliance with his contract to pay the money claimed. Chew, holding the legal title to the land. stood, in relation to his vendee, in the nature of a mortgagor ; he might either pursue the land hy an ejectment to compel the payim-nt of the purchase-money, or he might pursue his personal remedy upon the judgment-bond; he elects to pursue the latter course hy issuing a fi. fa., upon which the sheriff might have levied upon the defend- ant's personal property, or upon other land of the defendant than that sold to him by the plaintiff; the sale of either of which would not have been an extinguishment of the judgment to an amount greater than the proceeds ; but because it so happened that this land was levied and sold first, the whole amount of the judgment is to be extinguished. The sale would have passed the whole estate to the purchaser : Ligget v. Edwards, Hopkins 's Chan. Rep. 530; and the opinion given by the attorney of the plaintiff, in the execution upon which it was selling, would not alter the legal effect of such sale. It was but an opinion, and not imposed as terms of sale. But if by this opinion the defendant was prejudiced, we offered on the trial to rem- edy it by allowing him a credit for the then value of the land. Frick, for defendant in error, whom the court declined to hear. The opinion of the court was delivered by , GIBSON, C. J. In England, a legal estate cannot be sold, nor an equitable one levied, on an execution ; so that the rights which spring from judicial sales of equitable estates here, are necessarily peculiar to ourselves. In Purviance v. Lemon, 16 8. & K. 2!>2, the nature of these rights was considered as between the original vendor and vendee, and a principle established, which covers the ground of the present controversy, that a destruction of the relation of trustee and cestui quo trust, by re-uniting the equitable to the legal estate, is virtually a rescission of the contract. The vendor is a trustee to the extent of the payments of the vendee, who, by tendering the whole purchase-money, entitles himself to a conveyance. \\ hat would be the relation of the parties here, were the vendor, after hav- ing extinguished the vendee's estate by getting it in at the sheriff's sale, to enforce his judgment for the residue of the purchase-money ? It will be admitted that he could not keep the estate and compel the vendee to pay for it ; he entertains no such views. Hut having re- ceived the whole purchase-money, would he be bound to convey the whole estate under the original contract, or only the portion of it for which the vendee had newlv paid ? If the former, then the sher- iff's sale must have left the rights and interests of the parties pre- cisely as it found them ; and in that view, the vendee might, by 176 SUPREME COURT [Sunlury [Chew's Ex'r. v. Mathers's Adm'r.] paying the last shilling, entitle him to the estate, in defiance of a judicial sale of his interest. That would be monstrous. Yet the rights and the remedies of the parties, must necessarily be recip- rocal ; and if the vendee may not treat the purchase as still subsist- ing, neither can the vendor. But the residue of the price can be demanded only on the foot of the contract, for the performance of which the 'bond is but a security, and the judgment an instrument. The vendor, therefore, would not be bound to convey the whole estate, but would by consequence be considered as having perma- nently regained at least a part of it. That would, however, intro- duce a relation of the parties not contemplated by the original con- tract; and besides, bring the case exactly to the circumstances of Purviance v. Lemon, except that the chain of transmission from the vendor to the vendee, and back again to the vendor, had in that case an additional link. In every view, then, it seems that the extin- guishment of the vendee's estate by a re-conveyance, was a disaffirm- ance of the contract, and an equitable payment of the judgment. Judgment affirmed. Referred to, 10 W. 436. Distinguished, 4 W. 408. Doctrine discussed. Bradley c. O'Donnell et al., 8 C. 279. Followed, 5 W. 417 ; 8 W. & S. 183 ; 7 Wr. 455. Decker against Eisenhauer et al. If the payer of a note stands by and sees it assigned to a third person, without giving the assignee notice of an existing defence, he shall afterwards pay the amount of the note to the assignee, although the consideration thereof should have entirely failed ; and whether his conduct proceeded from ignorance or design. Tins was an appeal from the Circuit Court of Union county, held by Justice Huston. The case is fully stated in the opinion of the court. Greenough, for appellant, to sustain the position, that an obligor, who stands by and sees his bond assigned to a third person, cannot afterwards avail himself of any defence, which then existed, cited, Gordon v. N. Amer. Ins. Co., 1 Binn. 434 ; 5 Wils. Bac. Abr. 47-49 ; 3 Id. 301 ; Salmon v. Ranee, 3 S. & R. 311. LascheUs, contra, insisted that no reported case sustained the position that a man's silence would make him liable when otherwise he would not be. It was the duty of the assignee to ask the obli- gors, if they had a defence. Cited, Elliott v. Callan, ante, p. 24; Davis v. Barr, 9 S. & R. 137 ; McMullen v. Wenner, 16 Id. 18. Jane 1830.] OF PENNSYLVANIA. 477 [Decker v. Eisenhauer.] The opinion of the court was delivered by SMITH, J. This is an appeal from the Circuit Court, held by Justice Huston, for the county of Union in April last. The appel- lant moves this court for a new trial, on the ground that the verdict is against the weight of evidence in the cause, and the law arising from it. In order that the case and the decision of the court may be understood, it may be necessary to state somewhat minutely the prominent facts in the cause, as they appeared in evidence. Peter Decker, about the beginning of April 1818, purchased from Frederick Stees, a farm near Middle creek, in Union county, ad- joining lands of Henry Bolander and others. This farm consisted of several pieces or tracts of land, all adjoining and making but one plantation. On the 2Gd of April 1818, Peter Decker mortgaged this land to Frederick Stees, to secure a part of the original purchase- money. On the 14th of June 1819, he sold and conveyed to Abraham Eisen- haucr, a son-in-law of Henry Bolander, twenty-seven acres and one hundred and fourteen perches of the land covered by the mortgage, for the consideration of $1077. 73, a small part of which, to wit, about $130 was paid in cash. For the residue, upwards of $000, Eisenhauer gave nine single bills, the subject of this suit, with Henry Bolander as security. Abraham Eisenhauer took posses- sion of his purchase, and remained thereon until sometime in 1829, when the mortgage was put in suit, judgment recovered, and the said twenty-seven acres and one hundred and fourteen perches were sold to Barbara Mourer, a daughter of Henry Bolander, for $490. Sometime before the 1st of July 1820 (the precise time does not appear from the evidence), John Frytcnbcrger went to live with Peter Decker, and loaned him 300. He did not remain long with Decker, but being dissatisfied went to Henry Bolander 's, and while he was living there, Eisenhauer and Bolanderjboth told him there was a mortgage against Decker. Peter Decker swears (and he is not con- tradicted), that Eisenhauer knew of the mortgage to Stees, when he purchased the twenty-seven acres and one hundred and fourteen perches, and in consequence of it, insisted upon having a good and sufficient bond of indemnity; that a bond of indemnity was accord- ingly executed and left with the deed ; that Eisenhauer was not satisfied with the bond because bail was not in it. but took it to- gether with the deed, gave his bills as above mentioned, and about six years afterwards said he had burnt the bond of indemnity. On the 1st of July 1820, Decker, Frytenberger, Eisenhauer and Bolander, met together, when Decker assigned the single bills in question, to Frytenberger, in part satisfaction of the 300/., which he had borrowed of him. Henry Bolander wrote three of the as- signments himself; at this time or before, neither Bolander nor Eisenhauer intimated that they had any grounds of defence: and Frytenberger on being asked by Decker, why he pressed him so, 478 SUPREME COURT [Decker v. Eisenhauer.] answered that it was because Eisenhauer and Bolander said there was a mortgage against him. There was no evidence whatever that Frytenberger knew or had heard that the twenty-seven acres .sold to Eisenhauer were encumbered, or that the single bills in question were given for that land. The obligor cannot be compelled to pay a bond or single bill, given on the purchase of land, the title to which proves to be bad ; although the assignee is in no better condition in general than the obligee, yet if the obligor has promoted and encouraged the assign- ment, the case is different. This distinction was fully recognised by the learned judge before whom the cause was tried, but it would appear that it was not regarded by the jury. It therefore becomes necessary, in order to prevent injustice, to set aside their verdict and grant another trial. The defendants say, they ought not to pay the single bills, because they were given for the purchase-money of land, encumbered by a mortgage for which it was eventually sold. The appellant, however, replies that although this would have availed you as respects Decker; yet as you stood by and saw him assign these bills to me for a valuable consideration, without inform- ing me of the defect of title, as you, on the contrary, carefully con- cealed it from me and assisted in preparing the assignments, your defence in the present action is inequitable and unjust. In Rudy and Wife v. Wenner, 16 S. & R. 21, Justice Rogers, in delivering the opinion of this court, says, that if, before the assignment, the assignee calls on the obligor and informs him that he is about to take an assignment of his bond and the obligor acknowledges it is due without any allegation of defence, he shall not be permitted to take defence against the assignee ; and this whether his silence pro- ceeds from ignorance or design. The present Chief Justice, in Davis v. Barr, 9 S. & R. 141, says, " that to exclude all transac- tions between the original parties it is necessary that it should ap- pear the assignee took the assignment at the instance of the obligor or ut least that the latter stood by with full knowledge of his rights and without disclosing them. Now in this case, we find that both Bolander and the other defendant, Eisenhauer, whilst Frytenberger lived with the former, knew of the encumbrance ; Decker swears, that when he sold the twenty seven acres, Eisenhauer knew of the mortgage to Stees and for that reason, insisted on having a good and sufficient bond of indemnity, although to an entire stranger it might appear uncertain, from the face of the mortgage as written, whether the land sold was included in it, and it iff said without the aid of a draft it cannot be ascertained, yet it seems to us, that Eisenhauer at least, if not Bolander, must have been acquainted with the extent of the mortgage. This farm belonged to Frederick Stees, who had long resided in that neighborhood ; it adjoined Henry Bo- lander's farm who had also resided there a long time. Decker bought in 1818, and sold to Eisenhauer in 1819; and as it was June 1830.] OF PENNSYLVANIA. 479 [Decker v. Eisenhaucr.] a cash sale, it is reasonable to suppose both Eisenhaucr and bis father-in-law wouli make inquiry, either of Mr. IS tees or at the recorder's office, respecting the title, before they purchased, to nay the least of it, they had every motive and opportunity to inform themselves; and Decker swears positively that he told Eisenhaucr of the mortgage, who in consequence of it required a bond of indem- nity. With this knowledge, they, Decker and Frytenberger, on the 1st of July 1820, met together and Decker assigned the single bills to Frytenberger, in part satisfaction or the 300/. During the whole transaction, not a whisper is heard or hinted as to a defence, and the mortgage, though well known to one, if not to both of the defendants, was never mentioned ; good faith to Frytenberger re- quired them to speak out at this time ; instead of which, they are not only silent, but by their conduct actually promote the transfers. Under such circumstances, this court is constrained to say, as it did in the case of Stannard v. Callan, 1 P. & W. 31, that the conduct of the obligors, whether it proceeded from ignorance or design, must bar them from setting up a defence, with any hope of success, against Frytenberger, the equitable assignee. I am of the opinion, that by their silence, when they ought to have spoken, and by their whole conduct when assembled on the 1st of July 1820, they promoted and induced the assignment, and cannot now, injustice and reason, refuse to pay the single bills. Under all the circumstances, we are of the opinion, the cause ought to be reheard ; and therefore set aside the verdict, by reversing the judgment, and granting a new trial. HUSTON, J. It often happens that judges differ in opinion as to a particular case, much oftener than on general principles. The court in granting new trials, ought to be very careful in their state- ment of facts, for it is read to the jury, and by them, too often, con- sidered as evidence of such facts. I say this, because in the state- ment of the facts of this case by the judge, there is much which was not proved so strongly as here stated ; some things not proved at all, and it is said a point was not contradicted, which was the turning point in the cause, and which, certainly, the jury found to be differ- ent from what is here assumed. The cause turned on whether Ilochenbury or Decker was to be believed ; or whether Inlander knew of the mortgage, when the bonds were assigned : and the cause was left to the jury on those facts. I heard the testimony, observed the witnesses, their manner, and considered their situation and inter- est, and I was perfectly satisfied with the verdict, and that it was not contrary to the evidence given ; though it might be wrong, if statements of counsel were any evidence at all. New trial granted. 480 SUPREME COURT Willard et al. against Morris. A sale of real estate by the sheriff, upon a junior judgment, divests the lien of a prior mortgage upon the same land. A trial upon the plea of payment, is not a waiver by the defendant of a joinder in demurrer to another plea put in by him; thus when there is a joinder in demurrer, and the defendant is legally entitled to a judgment thereon in his favor, but the cause being tried, upon the plea of payment, and a verdict rendered for the plaintiff, it is error for the court to enter a judg- ment upon that verdict. WRIT of error to the Common Pleas of Tioga county. Tliis was a scire facias sur mortgage, at the suit of Samuel W. Morris against Roswell B. Alford, and on motion William Willard, who had purchased the mortgaged premises upon a sale by the sheriff, was admitted a co-defendant. The cause being at issue upon the plea of payment, with leave, &c., and ordered on for trial, .William Willard, by his counsel, pleaded specially " that judgment had been obtained against Roswell "B. Alford, subsequently to the mortgage, upon which a fi. fa. was issued and levied upon the mortgaged premises, which were afterwards condemned, and sold upon a venditioni exponas, by the sheriff to the said William Willard, for $50, .and that a deed therefor had been regularly acknowledged in open court and delivered to him." To this plea the plaintiff demurred, and the defendant joined in the demurrer. The cause was then tried, and a verdict rendered for the plaintiff, for the amount of the mortgage, $1000, and interest. The court entered judgment for the plaintiff. Lewis, for plaintiffs in error, who was informed by the court, that the point involved in this cause had already been determined. Ellis, with whom was Williston, for defendant in error, declined an argument of the point which the court intimated had been settled, that a sale upon a junior judgment divested the lien of a mortgage ; but contended that it did not arise in this case, because the party had waived the demurrer, and did not ask the court to render any judgment upon it, but went on to trial upon the merits, on the plea of payment. The judgment of the Court of Common Pleas was reversed, and judgment entered for the defendants. June 1830.] OF PENNSYLVANIA. 481 Steinbridge's Appeal. Upon an appeal from the decree of the Court of Common Pleas, distributr ing the proceeds of real estate sold by the sheriff, the affidavit must be made by the party ; it is insufficient if made by the attorney. The order of the Court of Common Pleas, opening a judgment and letting the defendant into a defence, does not destroy the lien from the original date of its entry. THIS was an appeal from the decree of the Court of Common Pleas of Northumberland county, distributing the proceeds of the sale by the sheriff, of the real estate of Henry Donnel. On the 9th June 1818, George Boyer obtained a judgment by default against Henry Donnel, in an action of debt for $'2000. On the 22d August 1818, this entry was made upon the docket : " On motion and affidavit filed, judgment opened, and defendant, Henry Donnel, let into a defence." On the 23 January 1819, "judgment by consent for the plaintiff, for $1131.11." On the 22d January 1819, II. G. Steinbridge obtained a judgment against Henry Donnel, for $157.60. The lien of each of the judgments was preserved from the time of their original entry, until the sale of the defendant's real estate by the sheriff. The question in the court below was, whether the order of the court of the 22d August 1819, opening the judgment of George Boyer, and letting the defendants into a defence, did not destroy the lien of the judgment ; which was not again acquired until the 23d January 1819, one day after Steinbridge obtained his judgment. The opinion of the court below was, that the judgment was opened merely for the purpose of letting the defendant make defence, and that the lien remained ; and therefore decreed in favor of George Boyer, from which decree Steinbridge appealed. In this court a motion was made to quash the appeal, on the ground, that the affidavit upon which it was founded, was made by the attorney, and not by the party. Bradford and Merril, for appellant. Greenougk and Packer, for appellee. PER CURIAM. The appeal is to be had on terms prescribed in the sixth section of the Act of the llth March 1809, as we have heretofore determined-; and in Bryan r. McCuIlough, at the present term, ante. 421, we held that the words of the law are too peremp- tory to allow the affidavit, which is made a requisite preliminary to an appeal, equally with a writ of error, to be made by any one but the party. The inconvenience of this, if any should result, will 1 p. & W._31 482 SUPREME COURT [Sunlury [Steinbridge's Appeal.] doubtless be remedied by the legislature, to whom the subject exclu- sively belongs. But this is immaterial here, as the proceedings are to be affirmed on the merits. A judgment may be opened, or it may be set aside. If the former, it remains a judgment still, and with all the attributes as such, of which the order of the court has not deprived it. Here it was opened to let the party into not even a full defence ; consequently it was no further disturbed, than to effect that object. Sometimes the judgment is expressly ordered to stand as a security ex mnjore cautcla; but that is unnecessary. By the construction of the Acts of Assembly, by which lands may be seized in execution, lien is an incident of every judgment, and of which it can be deprived only by being set aside. That was not done here, and the court below determined correctly, that the lien existed from the first rendition. Decree affirmed. The attorney may now make the affidavit. See Act 27 March 1833, sec. 2, Pamph. L. 99. Lemon against Thompson's Adm'rs. II. S. conveyed a house and lot to D. L., in consideration whereof. D. L. executed eight single bills, of fifty dollars each, to B. T.. and eight to J. K., in which B. T. was his security. D. L. and B. T. entered into an agreement, by which the deed from II. S. was to remain in the hands of 15. T. as a secu- rity fur the payment of the eight notes due to him, and the eight notes due to J. K. in which B. T. was security. B. T. afterwards, and before the pay- ment of the said notes, died, having first made a will, by which he devised to the wife of D. L. the aforesaid house and lot. Held, that such devise re- leased D. L. from the payment of the eight single bills to B. T., but did not release him from the payment of the eight single bills to J. K., in which B. T. was security. WRIT of error to the Common Pleas of Union county. This was an amicable action of debt, in which Henry Yearirk, administrator with the will annexed of Benjamin Thompson, wns plaintiff, and Daniel Lemon was defendant. The following facts were agreed to be considered in the nature of a special verdict, with leave to either party to take out a writ of error. Henry Springer and wife, on the 30th day of March 182*2, exe- cuted a deed to Daniel Lemon fora house and lot of ground in New Berlin. On the same day, Daniel Lemon executed eight single bills, to Benjamin Thompson, seven of which were for $oO each, the first payable April 1st 1823, and so on annually, on the 1st day of April in each year, and the other for the payment of $40, on the 1st April 1830. Same day, Benjamin Thompson and Daniel Lemon, exe- cuted eight single bills to John Kelly, for like sum payable as above. June 1830.] OF PENNSYLVANIA. 483 [Lemon v. Thompson.] Same day, Benjamin Thompson and Daniel Lemon entered into the following agreement in writing, to wit: "March 30th 1822, it is agreed that the above deed shall lay in the hands of Benjamin Thompson as a pledge, till the payments to Kelly arid Thompson are all made, for the property purchased of Springer in New Ber- lin ; and when made, the said Thompson or his executors or admin- istrators shall deliver the deed to Lemon, his heirs, executors or administrators." It is further agreed that the consideration for the house and lot in New Berlin, conveyed by the said Henry Springer to said Lemon was paid to said Springer by said Kelly and Thompson. It is further agreed, that said Thompson made his last will and testament, which is duly proved and recorded in New Berlin, by which the said Thompson devised the said house and lot mentioned in the above deed to the wife of the said Daniel Lemon. The question is, whether Daniel Lemon is obliged to pay the single bills above mentioned, as given by him to said Thompson ; arid also whether he or the administrator with the will annexed, is obliged by law to pay the said single bills to John Kelly. If the court should be of opinion that Lemon is not obliged to pay the said single bills, then judgment to be for defendant ; other- wise for plaintiff. Opinion of. the court (Chapman, president.) " In this case stated, the court are of opinion, that Benjamin Thompson devises to his daughter, the wife of Daniel Lemon, all his interest in and arising out of his house and lot, in New Berlin. This is evidently the intention of the testator, otherwise his daugh- ter would take nothing by the devise; by which Daniel Lemon is clearly exonerated from the payment of the single bills given by him to Benjamin Thompson, for the purchase-money, but he is not exonerated from the payment of those single bills given by him to Kelly as part of the purchase-money. If Lemon was obliged to pay all the purchase-money, his wife could take nothing by the devise; the court in the above case order judgment for the phiin- tiflf as far as the bonds to Kelly are concerned, and judgment for the defendant, as far as the bonds to Thompson are concerned.' Merrill, for plaintiff in error, contended that the court below should have entered judgment generally for the defendant. Lashells, contra. Judgment affirmed. 484 SUPREME COURT [Sunkun, Halm et al. against Smith. The land of D. II. having been levied, and advertised for sale by the sheriff on a venditioni exponas, before the day of sale, D. II., by a verbal agreement, transferred the surplus of what the land might sell for, beyond the payment of encumbrances, to L. S., to indemnify him against certain liabilities. Two days after the sale, before the deed was acknowledged, and before all the purchase-money was paid, A. D. II. entered a judgment against I). II. and issued a fi. fa. with directions to the sheriff to retain the surplus: //. ELIJAH BAHHIT." [SEAL.]" This evidence was objected to by the defendant, the objection was overruled by the court, and exception taken. CH ; Jackson v. Alexander. 3 Johns. R. 4S4. To the- validity of such deed a valuable consideration is essential : 1 Wils. Bac. Abr. 4<)i* ; Jackson v. Sebring, 1<> Johns. R. 515. And that consid- eration must be expressed in the body of the deed ; no parol evi- June 1830.] OF PENNSYLVANIA. 487 [White v. Weeks.] donee can be given thereof, unless it be contained in the deed, that a consideration did pass, then only can it be proved by parol what that consideration was : Moore v. Bilham, 4 Binn. 1 ; Peake's Ev. 121; Mildmay's Case, 1 Coke's Rep. 17(5; 1 Phila. Ev. 495; Sears u. Brink, 3 Johns. 11. 211 ; 1 Phila. Ev. 501-2; 3 Stark. Ev. 99-5-7. The Statute of Frauds and Perjuries would be violated, in its spirit, by the admission of parol evidence to make this a good deed. If the consideration can be supplied by parol, so may also any other material part. The quality of the estate granted may be made out by parol, or the quantity of the land increased or diminished. The practice of expressing the consideration in the deed is almost uni- versal, hence is a strong proof of its necessity. Anthony i for defendant in error. A deed under seal imports a consideration, whether expressed or not : Roberts on Fraudulent Conveyances 119 ; but if it is not expressed, it may be proved by parol: 11 Coke's Rep. 24-5; Jackson v. Fish, 10 Johns. R. 45b' ; Hartley v. McAnulty, 4 Yeates 95 ; o Stark. Ev. 1004 ; Daven- port v. Mason, 15 Mass. '92 ; 1 Phila. Ev. 481-2 ; Langely r. Brown, 2 Atk.s. 202. In Moore v. Bieham, 4 Binn. 1, this question is not raised, much less decided, for in that case the parol evidence was not offered. If the deed was defective for want of an expressed consideration, the defendant could not take advantage of it. Judgment affirmed. Referred to, 7 C. 270; 4 Smith 82; 5 Id. 518 ; 13 Id. 374. Commented on, 3 W. 15S. Followed, 12 Wr. 496 : G Smith 139 ; 29 Id. 443. Honnitcr against Brown. A judgment was rendered by a justice of the pence for the plaintiff, the defendant appealed to the Common Pleas, he afterwards appealed from an award of arbitrators against him, ami paid the eosts. t'pon a trial of the cause by a jury, the defendant j^ave evidence which had nut been i:iven to the justice nor to the arbitrators, and a general verdict was rendered in his favor: Held, that he was entitled to recover from the plain ti IV tlu costs which he had paid upon the appeal. ERROR to the Common Pleas of Li/cotniny county. This suit, in which James Brown, the defendant in error, was plaintiff below, and George Honniter was defendant, originated he- fore a justice of the peace, who rendered a judgment in favor of the plaintiff for $80, from which the defendant appealed to the Common Pleas, where the cause was referred under the compulsory arbitra- tion law ; the arbitrators made a report in favor of the plaintiff for 488 SUPREME COURT [Sunbury [Honniter c. Brown.] 390. From this award the defendant again appealed, and paid the costs, amounting to $30. The cause was afterwards tried by a jury, and a verdict and judgment rendered for the defendant. The de- fendant gave evidence to the jury which had not been given to the justice, nor to the arbitrators. The question in the court below was, whether the defendant was entitled to recover from the plaintiff the costs which he had paid when he appealed from the award of arbitrators. That court determined that the costs paid upon the appeal, under the circumstances of this case, were not recoverable from the plain- tiff. Parsons, for plaintiff in error. The defendant, having given new evidence to the jury, cannot recover his own costs ; under the cir- cumstances of this case, each party must pay his own, but those which the defendant seeks to recover are the costs of the plaintiff, paid by him on the appeal : Gonsalus v. Liggitt, 1 Rawle 427. Armstrong and Anthony, for defendant in error, cited Flick v. Boucher, 16 S. & R. 373 ; Shaeffer v. Landis, 1 Id. 449 ; Kimble v. Saunders, 10 Id. 193; Purd. Dig. 20.. This court was of opinion that the defendant was entitled to re cover the costs paid by him on the appeal. Judgment reversed. Followed, 1 W. 45. APPENDIX. [Several cases having been omitted in their proper places, from circumstances not under the control of the reporters, they are introduced here.] WESTERN DISTRICT SEPTEMBER TERM, 1829. Evens against Beatty et al. IN ERROR. When it was proposed to sell depreciation lands at auction, the country was divided into districts, and the lands surveyed. And when the plan of sale by auction was abandoned, and the country thrown open to settlement or sale in the ordinary mode by warrant from the Land Office, the country was again divided into districts. It is understood that the boundaries of these districts of 1792 were not the same, in general, with the boundaries of the depreciation districts. If the surveyors of adjoining districts agreed ujon the dividing line between their respective districts, or adopted a line already run, such line is to be considered the line between them, although it should be ascertained by survey to give the district less or more than by law was allotted to a district: and surveys made by the surveyors of the respective districts within such line, in their respective districts, are good. After the lapse of forty years, evidence is not required how such line was run, when run or by whom ; on proof that the respective surveyors had surveyed to such ancient line as a boundary in their respective districts, it should be considered as the regular legal district line. WRIT of error to the Common Pleas of Beaver county. Fetterman, for the plaintiff in error. Moore and Selden, for the defendant in error. The facts of the case are fully stated in the opinion of the court, which was delivered hy HUSTON, J. The plaintiff here was plaintiff below, and brought his ejectment to recover a tract of land, under the following circum- stances : In the spring of 1700, James Ilillman settled on the land in ques- tion, intending to hold it by improvement. In 175*7 he sold his possession and right to J. Beatty, for 800. Of this. 8400 were paid in cash, and the remaining 8400 were retained until it was ascertained whether the lands could be held bv improvement, or 14S9) 490 SUPREME COURT [Pittsburgh [Evans r. Beatty.] would DC taken from the settler by any of the warrants which here- tofore may have been taken out ; a bond was given for this money, and both the article and bond were assigned to the plaintiff. Several points were discussed and decided by the Court of Com- mon Pleas, which it is not considered necessary to detail. The opin- ion of the court was right on each point. But one matter was agitated which we think ought to be put to rest speedily. The pop- ulation company had warrants in the hands of the deputy-surveyor. The lands in question had been surveyed as depreciation lands, and the warrants of the population company applied to those depreciation surveys, and so far the case of McCrea and Plummer, decided this case. But it was alleged that the lands in question did not lie in the district of Jonathan Leet, who returned them, and the sixth section of the Act of the 2d of April 1792, declares any survey made by any deputy-surveyor, out of his district, void and of no effect. When it was proposed to sell the depreciation lands at auc- tion, the country was divided into districts, and the lands surveyed. When the plan of sale by auction was abandoned, and the country thrown open to settlement, or sale in the ordinary mode by warrant from the land office, the country was again divided into districts, and deputy-surveyors appointed. It is understood that the boundaries of these districts in 1792 were not the same in general with the boundaries of the depreciation districts. When the country began to settle, certain lines were known and shown as district lines ; and it was not always distinguished whether the line spoken of was a line of a depreciation district, or of a district of 1792. In the testimony in this case we find some confusion, from not dis- tinguishing what district line the witness was speaking of. The deputation and instructions of the surveyor-general to Jona- than Leet, were given in evidence. They refer to the district of John Ilogue, and two other marks of designation. In order to as- certain the line between Ilogue's and Leet's district, a Mr. Martin had begun at the western line of the state, and run east eleven miles arid one hundred and seventeen perches (why he did not run twelve miles, the distance called for, does not appear). lie then run south to the Ohio, found a line which he says he heard of before, that it w^s Cunningham's line, and again he says it was called a district line. John Ilogue's commission was not shown at the trial, nor have we it now. The counsel have assumed, and I shall assume, that his district was to adjoin the western line of the state, and to be bounded south by the Ohio river, and to extend east from the state line, twelve miles, and it seems that the line to which he surveyed, and all on the east side of which was surveyed and returned by Leet, is not twelve miles east of the state line. Whether John Ilogue followed the meanders of the Ohio twelve miles, and thus made much less than twelve miles due cast ; or Sept. 1829.] OF PENNSYLVANIA. 491 [Evens v. Beatty.J whether there was an old division line between two depreciation districts, which Hogue and Leet agreed should be the line between their districts, or whether, as I believe the fact was, the surveyor- general was mistaken in the extent of the country east and west ; and that there was not distance to allow each district the allotted space, I know not, nor is it material. The act directed districts to be designated, and a deputy-surveyor to be appointed for each ; and each to confine himself to his district ; for the safety and secu- rity of those who should become owners of lands in that part of the state. It was perfectly immaterial to all but John Hogue and Jonathan Leet, whether the north and south line, which divided their districts, was nine, or ten, or eleven, or twelve miles east from the western line of the state. But it was most material that John Hogue and Jonathan Leet should agree on a line which should be the line of their respective districts, and that John Hogue should confine his surveying to the west side, and Leet his surveying to the east side of that line. They did, it seems, agree, and run such a line, or find it already run, and adopted it. There is no allegation that admit- ting this to be the line of their districts, that either has ever passed beyond it. The plaintiff contends that he must, at all events, give Ilogue his distance, twelve miles, due east. This idea followed on, will give Leet his distance due east, and thus bring him into the district of his neighbor to the east. And thus, under the pretext of doing every thing correctly, unsettle the titles to a few hundred tracts of land. The same spirit would inquire whether more skilful men, with bet- ter instruments, would not change the line between Pennsylvania and Maryland, Pennsylvania and Ohio and New York ; and the same spirit has been endeavoring to pick a few acres out of every tract of land, when any overplus in the survey occurred, and rob a man of his whole land, if carelessness or inattention, or something worse, in the surveyor, or chainman, or marker, has left something undone, or done anything wrong; Better, said a great judge, on a very solemn occasion, to give a new construction, and entirely different legal effect to certain ex- pressions, than to unsettle or overturn ten thousand estates. We are not called on here to introduce any thing new into the jurisprudence of our country. When the line of a surveyor of a district is in question, we have adhered to it. when it can be ascer- tained that it was run at a particular place, that it did injury to no one at the time, and that it has become a land-mark of property. The court was then right in directing the jury, that if they had evi- dence to prove the line spoken of by the witnesses, to have been adopted as the division line, the surveys being in Loot's district, according to that line, would be good. Length of time has added force to the principle in this case. 492 SUPREME COURT [Pittsburgh [Evens r. Beatty.] After the lapse of nearly forty years, I would not require any evi- dence of how it was run, or when run, or by whom. On proof that one had surveyed west of it, and to it as a boundary, and the other east of it, and to it as a boundary, I would consider it the regular legal district line, totally superior to all attack or dispute, by sharp measures or prowling regulators, of whatever description ; no matter under what pretext or excuse they attempted to destroy titles and disturb the peace of the community. . Judgment affirmed. Leinhart against Forringer. IN ERROR. In an action for money had and received, brought to April term 1825, to recover the amount paid on an article of agreement for the sale of land, which was entered into between the parties, in the year 1800, where nothing had been done by the defendant until 1824, which would entitle the plaintift* to rescind the contract, the Statute of Limitations is insufficient to bar the action. ERROR to the Court of Common Pleas of Butler county. This case was argued by Grilmore, for the plaintiff in error. Ayres, contrA. The facts of the case are fully stated in the opinion of the court, delivered by GIBSON, C. J. In the year 1800, the parties entered into articles, in which it was declared that the plaintiff below had bought of the defendant one hundred acres of land on the head waters of Sugar Creek, and that the plaintiff had " the right and title for the said land." There was no covenant that the defendant would convey ; indeed the person who drew the article appears to have been alto- gether unskilled in the business of a scrivener, or the ordinary im- port of the most familiar words. The plaintiff paid the purchase- money without going into possession, and took no further step till about the year 1815, when in consequence of having understood that the defendant had conveyed the land to a stranger, he directed one Gilleland, to request the defendant to return the purcha.se- raoney, which the defendant refused to do, but offered to give the land. On this footing the matter was again suffered to rest till 1824, when one Croll called on the defendant (whether on behalf of the plaintiff does not explicitly appear), arid asked him to show the land which the plaintiff had bought of him ; on which the de- fendant said " he had no land, and that he did not know, nor had Sept. 1829.] OF PENNSYLVANIA. 493 [Leinhart v. Porringer.] ever seen Leinhart" (the plaintiff). Croll then desired " to know for certain about the land ;" and the defendant "still declared that he did not know Leinhart." Croll then asked "if he would know any thing supposing he would see the article and receipt ;" to which Forringer said, " he did not want to see the article, and still declared O ' * lie did not know the man," but said " that if this deponent (Croll), wanted to buy land, he had one hundred acres on Little Sugar Creek that he would sell." This is an exact statement of the whole case, the material parts of which are in the very words of the par- ties or witnesses ; and we are to bear in mind, that the only ques- tion raised on the record, is whether this action to recover back the purchase-money which was brought to April term 1825, is barred by the Statute of Limitations. The statute never begins to run before the right of action has accrued ; which in a case like the present, is when the defendant has put it in the power of the plaintiff to rescind the contract. While it remains in force, the vendee cannot allege that the pur- chase-money was paid to his own use ; when by the terms of the contract, it was paid to the use of the vendor. When did the con- duct of the defendant first authorize the plaintiff to dispense witn the contract here ? For fifteen years both parties were content to let the matter stand on its original footing ; but the plaintiff having called then for a return of the purchase-money, the defendant, as he had a right to do (having done nothing amiss), insisted on hold- ing him to the bargain, and in this state matters remained till 1824, previous to which, the remedy of the plaintiff, if he had any, was an action of covenant in affirmance of the contract, against which the statute would not have run. It is clear then, that as no implied assumpsit arose till within a few months before the commencement of the present suit, a right of action for this cause did not previously accrue within the intent and meaning of the statute. It is no ob- jection, that the cause of action in substance accrued immediately after the execution of the articles, and that there is no essential dif- ference between this action on an ideal promise, and an action on the covenant, the object of both being damages for a breach of the contract. Be it so; but why, therefore, is this action to he put on a footing more unfavorable than that of an action of covenant against which the statute does not run ? The matter is detenninable by the form of the action ; and there is nothing to give rise to an im- plied assumpsit before the contract was renounced by the defendant in 1824. Previous to that, there was no fraud in the concoction of the agreement, or act done which would have entitled either party to rescind. It was not shown that the defendant had conveyed to a stranger, or, if it had been so, that the plaintiff was apprised of the fact six years before the commencement of his 1 action ; without 1 In such a case the statute would be a bar. 4 II. l.">8. 494 SUPREME COURT [Pittsburgh [Leinhart r. Forrin^cr.J which the cause of action could not have accrued at a period suffi- ciently early to bar him ; which is the only point submitted to us. Whether the defence ought to have been sustained on grounds inde- pendent of the statute, is not the question. That matter passed without exception at the trial, and is consequently not before us here. But even on the merits, I would hold that the plaintiff ought to recover. Both parties have shown such backwardness as would pre- clude cither, but especially the defendant, from calling for a specific execution ; and although a chancellor will sometimes refuse to exe- cute a contract, for reasons that would be insufficient to rescind it, but leave the party to his remedy at law, yet here, in the absence of a covenant to convey, I can discern no remedy on the contract, by which the plaintiff could recover back the purchase-money in the shape of damages or otherwise. It surely will not be insisted, that the defendant ought to be suffered to keep the money and the land too ; but that consequence would be inevitable, did not his denial of the bargain ipso facto entitle the plaintiff to an action in disaf- firmance of the contract. It seems to me there was enough in the circumstances of the case to enable the jury to infer, that Oroll acted for the plaintiff when the defendant denied the bargain ; and unques- tionably the plaintiff might renounce the contract after it had been repudiated by the defendant., But that matter was settled without exception at the trial ; and here the point raised is the supposed cfl'ect of the Statute of Limitations, which a majority of the court deem insufficient to bar the action. Judgment affirmed. Referred to, 10 Wr. 16. Sept. 1829.] OF PENNSYLVANIA. 405 Meredith against Shewall. The sheriff is a competent witness to prove the words '' Proceedings stayed by plaintiff's attorney," which hud been endorsed on ti writ of liberari facias, and signed by the sheriff and which were struck out or erased by a line run through them, though still legible, were his return to that writ, and that lie had not struck them out. It is competent to prove, and that by the sheriff, that upon such writ of liberarr facias, he did not deliver the land to the plaintiff, although it was set forth in the inquisition returned with the writ, that the sheriff and inquest had caused to be delivered the property extended, " until the debt and dam- ages in the same writ mentioned, together with interest, &c.., be fully levied." An inquest 'under a liberari facias can only determine the value of the land, the yearly rents and profits, and the term during which it shall be ex- tended. The delivery of the land is the executive duty of the sheriff alone. ERROR to the Court of Common Pleas of Fayette county, where a verdict and judgment were had in favor of the defendant, to which the plaintiff took this writ. The case was argued by Irwin, for the plaintiff in error, and by Swing, for the defendant in error. The facts of the case are fully stated in the opinion of the court, which was delivered by SMITH, J. The parties entered an amicable action, to try their right to the proceeds arising from the sale of the real estate of a cer- tain Stewart II. Whitehill, which they respectively claimed under judgments against him. All objections to the form of suit were waived ; and the plaintiff claimed $-11 of those proceeds (which sum, it is agreed, is in the defendant's hands), as so much money had and received by the defendant to his use. The cause was tried on the (Sth of March 1828. On the trial, the plaintiff gave in evidence the record of an action to December term 1818, in the Common Pleas of Fayette county, between Maurice and William Wurtx, plaintiffs, and the said Stewart II. Whitehill. defendant, in which the former had obtained a judgment on the 10th of January 181!*, for f>i'8.78, and had afterwards transferred it to the plaintiff, Meredith, a pluries fieri facias thereon to March term. 1820, which was returned " levied on lifty acres of land, &c., inquisition held and extended." The defendant then gave in evidence the inquisition of extension on the said last-mentioned writ, and a liberari facias thereon to March term 1821, with the inquisition attached. 496 SUPREME COURT [Pittsburgh [Meredith r. Shewall.] The plaintiff then offered Daniel P. Lynch, former sheriff, to prove that the words, " Proceedings stayed by plaintiff's attorney," which had been endorsed on the writ of liberari facias, signed Daniel P. Lynch, and which were struck out or erased, by a line run through them, though they were still legible, were his return to that writ; and that those words were not struck out by him ; and to prove also, that there was no actual delivery of the property specified in the liberari facias to Maurice and William Wurtz. This being objected to by the defendant's counsel, the offer was overruled by the court, and a bill of exceptions sealed. The sole question before us is, whether the sheriff was a^ compe* tent witness to prove that his return to the liberari facias had not been erased by himself, and that he did not in fact, deliver the pos- session of the land. We think he was a competent witness for these purposes, and ought to have been received. The general rule undoubtedly is, that a sheriff cannot be admitted to contradict his return ; as to himself, it is conclusive ; but it is not, under all circumstances, conclusive as to others. But in regard to the first branch of the offer, Daniel P. Lynch was not called to contradict, he was called to -support, the return which he had made. He had, in pursuance of his duty, endorsed it on the writ, which he delivered into court, and which, when shown, exhibited it erased ; and he was brought forward to testify that he did not erase or strike it out. Certainly nothing can be plainer than that in proving this, he would not impugn the record of his Official act, but maintain it. It would lead to the most mischievous consequences, if courts were precluded from all inquiry relative to matters of this description. In Hill et ux. v. Wigget, 2 Vern. 547, an entry in the steward's book, and parol proof by the foreman of the jury, were received as good evidence, that a feme covert surrendered her whole estate, although the surrender upon the roll, and the admission thereon, were but of a moiety. In the present ca.se it was evidently proper for the court and jury to know the truth of this transaction. If the sheriff did not alter his return, who did ? Was it done with the consent of the parties, fraudulently or otherwise ? That the sheriff did not alter it, was the first step in the investigation : and who so likely or proper to prove that negative fact as the sheriff himself? The circumstance of the erasure alone, apparent upon the production of the writ, was sufficient to authorize an inquiry into the fact, in order to ascertain when, by whom, and wherefore it had been made. The object of the offer was to restore to the proceedings what had been improperly obliterated, and it would indeed be a singular way of protecting records, to shut out the most direct means of proving their viola- tion. It is clear, then, that the sheriff should have been admitted Sept. 1829.] OF PENNSYLVANIA. 497 [Meredith v. Shewall.j to prove, that he had made his return as it originally stood in the endorsement o.n the writ, and that he did not erase or alter it. There is nothing in the inquisition, which, in our opinion, fortifies the objection to this part of the offer, because after the inquest had discharged their appropriate functions, the sheriff might, without repugnance or inconsistence, have stayed further proceedings, by order of the plaintiff, as will be explained in considering the residue of the offer. This was to pro/e by the sheriff, that he did not in fact, deliver the land mentioned in the liberari facias to Maurice ami William Wurtz. It is said that this was properly rejected, because the sheriff returned in the body of the inquisition, that he had deliv- ered the land to the plaintiffs, and it is contended that although he did not actually deliver it to them, or ever paid or satisfied their judgment (the oldest lien), yet they are concluded by such return, which operates as a discharge of their judgment. As I have said before, the conclusive effect of a regular return of the sheriff, is not to be disputed. It is in general of so high regard, that no aver- ment should be admitted against it. But even when regular, it is not to be extended beyond its reasonable intendinent, to prejudice the interests of parties. Where a sheriff returns " goods levied," without any specification, the plaintiff is not precluded, nor those claiming under him, from showing that he was not satisfied : 5 Binn. 20G. And when a return is irregular and illegal, it may be inquired into and impugned. In Weidman r. Weitzel, 13 S. & R. I'O, a sheriff's return to a fieri facias of " debt and costs paid," made two years out of time, and less than a year after the commencement of the suit in which it was given in evidence, was held to be unworthy the name of a regular return, by which the plaintiff should be con- cluded. So in a case between Pennock's Executor and Griffith and George Carr, 1 Rawle 4:20, it was decided at the last term at Snn- bury, by this court, that a return of nulla bona to fieri facias, which had been retained in the sheriff's hands, for six years, was not con- clusive ; that the purchaser of the defendant's property, might show that the plaintiff in the fieri facias had been satisfied ; and the sher- iff himself was examined touching the facts. See also 1 M. \ Selw. 5 ( J9 ; 1) Johns. R. 1)0. Here, in the principal case, the alleged return of the sheriff, with regard to the delivery of the land, is con- tained in the inquisition under the liberari facias ; ami before he could deliver the land to the plaintiffs, a proper inquisition was necessary under this writ. The office of this inquisition is distinct from that under the fieri facias : it is to ascertain the value of the land, and the clear yearly rents and profits beyond all reprises, and the number of years within seven, that will be necessary to satisfy the debt, damages and costs; according to which the sheriff must deliver possession, and return his writ with the inquisition annexed. This inquisition does more than perform its legitimate functions, it states that the sheriff and inquest had caused to be delivered to 1 P. & W. 32 498 SUPREME COURT [Pittsburgh [Meredith v. Shewall.] Maurice and William Wurtz the property extended " until the debt and damages in the same writ mentioned, together with the interest thereof, be fully levied ;" whereas the inquest under a liberari facias can only determine the value of the land, the yearly rents and pro- fits, and the term during which it shall be extended. The jury have nothing to do with the delivery of the land, that is the executive duty of the sheriff alone. So, it was said in Sparron and Matter- sock et al., Cro. Car. 319, were all the precedents. It is evident, then, that the act of delivering the land must follow the inquisition even if regularly taken under the liberari facias ; the proceedings may well be stayed subsequently to the inquisition, and before actual delivery ; and the sheriff may return the order to stay them, as his reason for not delivering pursuant to the exigency of the writ. The plaintiff proposed to show that the proceedings were stayed, that the land was not actually delivered, and that his judgment was not sat- isfied, The answer was, that though the proceedings were stayed, though the land was not delivered, and though his judgment was not satisfied in point of fact, yet the return in the inquisition pre- cluded him from showing the fact, because that return was conclu- sive. It is apparent, however, that the irregularity and illegality of that proceeding are such as to deprive it of all pretensions to legal sanctity, and to remove any impediment which a regular and legal return might have presented to the admission of the offered testi- mony. The alleged return is indeed nothing more than the inqui- sition of the sheriff and jury, and when no actual delivery of the land was made, it would be most strange, if the inquisition, which regularly and legally precludes the delivery by the sheriff, should be held to preclude the proof relative to that subsequent fact, when it was offered to show, by the sheriff himself, that he did not actu- ally deliver the land. The plaintiff should have been permitted to prove what he proposed, and in rejecting the offer under consider- ation, the court below erred. Judgment reversed, and a venire de novo awarded. Referred to, 8 Smith 208. Commented on and doubted, 2 Wh. 471. Sept. 1829.] OF PENNSYLVANIA. 409 McCoy et ux. against Turk. The treasurers of the respective counties, are the proper persons to wake sale of unseated lands to pay the arrearages of taxes, and the Act of the Kith March 1815, which jfives them this authority, alters and supplies so much of the Act of the 3d of April 1804, as required a warrant from the commissioners of the county, to issue to the sheriff or coroner, in case of a sale as uforoaiu. ERROR to the Court of Common Pleas of Ilutler county. This was an ejectment brought in the court below, by McCoy and wife, against Ephraim Turk, to recover a tract of two hundred acres of land, in the first donation district of Butler county, No. 200. 'It was admitted on the trial, that there was a patent to Thomas Tull for the tract of land for which the ejectment was brought, and also, that Mary McCoy was his sole heir. The defendant then gave in evidence, first, the duplicate of the assessment for Muddy Creek township, for the year 1810-17. Then the return of the supervisors of the said township, for the year 1816-17, to the commissioners of Butler county. The deed from the treasurer of Butler county, dated 13th August 1818, for the tract of land in question, under which the defendant claimed, was then offered in evidence and objected to, which objec- tion was overruled, and the deed read in evidence. The jury found for the defendant, and this writ of error was taken. Bredin, for the plaintiff in error. The court below erred in the admission of the treasurer's deed. 1st. Because the treasurer of Butler county commenced his sales of unseated lands in the year 1818, and before two years had elapsed from the commencement of the sales in 1810, or the time fixed by law for the sales in 1816. 2d. That no warrant had been issued by the commissioners to the treasurer, commanding him to sell the unseated lands in said county. Two other errors were assigned and afterwards abandoned. Ayres, for defendant in error. The opinion of the court was delivered by ROGERS, J. Two objections have been made to the admission of the treasurer's deed in evidence. That the treasurer commenced his sales of unseated lands in 1818, and before two years had elapsed from the commencement of the sale in 181(5. And that n< warrant had been issued by the commissioners to the treasurer, commanding him to sell the unseated lands. 500 SUPREME COURT [Pittsburgh [McCoy r. Turk.] The first question has been already disposed of in Hyner v. Cor- yell, decided at the last term in Sunbury, and not yet reported. In the second section of the Act of the 3d April 1804, the com- missioners of the county are directed to issue their warrants, under their hands and seals of office, directed to the sheriff or coroner, commanding him to make public sale of the whole, or any part of such tracts of unseated land, as he may find necessary for the pay- ment of taxes. The Act of the 13th March 1815, which repels so much of the Act of the 3d April 1804, as it alters and supplies, devolves these duties on the treasurer. The first section enacts that the treasurers in the respective counties, &c., shall be, and they are hereby re- spectively authorized and directed to commence on the second Mon- day in June, in the year 1816, and at the expiration of every two years thereafter, &c., to make public sale of the whole or part, &c., as will pay the arrearages of taxes. It would seem to be the inten- tion of the legislature by this enactment, to simplify the process of sale ; for that, which under the Act of 1804, was the duty of the commissioners, and the sheriff or coroner, is authorized and directed to be done by the treasurer alone. A warrant from the commis- sioners which was before in terms required, has been dispensed with. The treasurer derives his powers from the act itself, which is his war- rant, commanding him, without the intervention of any other author- ity to sell, and fixing the times of sale biennially ; commencing the second Monday of June 1816. And from this construction, no in- convenience can result, as the treasurer possesses all the information necessary for the proper discharge of the duties imposed upon him, and must be supposed to be perfectly acquainted with the whole fis- cal concerns of the county. The Act of the 13th March 1815, in which respect it alters and supplies the Act of 1804, vests the trea- surer with the control of the whole process for the sale of unseated lands for payment of taxes, and we are not to suppose that the pow- ers conferred upon him will be abused for purposes of private gain. The first two errors having been properly abandoned, it is the opinion of the court that the judgment be affirmed. Judgment affirmed. Sept. 1829.] OF PENNSYLVANIA. f>01 Little et ux. against Hodge et al. IN ERROR. The mode of appropriating donations in land to the officers and (soldiers of the Pennsylvania line, in the Revolution, adopted after the war. The officers of the government, intrusted with the appropriation of dona- tion land, could at no time give a patent to an applicant for any tract he might ask. A patent for a tract of donation land is void, unless given after drawing, and for the number drawn. If one man draw a number, and a patent for the land designated by that number were issued to another man, such patent would be void ; and the man who drew the number would be entitled to the land. Where any officer or soldier once drew a number, in no event could he, or any one in his name or right afterwards draw another tract. Independent of any other evidence, a patent for donation land would be presumptive evidence that the patentee had drawn the number for which such patent had issued to him; although his name did not appear in the control- ler's list, or on the general draft. But such presumption would not prevail where his name did appear in another number and a patent had issued to him for that number, and where the number for which his patent issued, without having his name in it, was subsequently drawn from the wheel in the name of another. WHIT of error to the Court of Common Pleas of Mercer county. The action was ejectment to recover a tract of donation land, con- taining two hundred acres. No. 763, in district number 4. The plaintiff made title through Robert Parker, a lieutenant in the Penn- sylvania line, and exhibited a patent to him for lot No. 763, 4th dis- trict, dated the 28th day of February 1704, the general draft of that district, in which his name appeared in that number, and also the controller's list, in which No. 763, in the 4th district, is set down opposite to his name as having been drawn by him. The defendants rested their title on a patent to Ilinderliter, as- signee of John Whiteman, for lot No. 763, in the 4th district (being the same lot), dated the 12th day of September 1700. To defeat which, the plaintiff gave in evidence the following extract from the general draft of donation land in district number 0. No. 1778. No. 17S6. No. 177; John Whiteman, No. 1776. No. 1771. They also gave in evidence a certified extract from the controller's list, in which the name of John Whiteman, private, was inserted. 502 SUPREME COURT [Pittsburgh [Little v. Hodge.] and opposite to it two hundred acres, No. 1776, 9th district, and that this was the only entry on the said list in the name of John Whiteman. They also gave in evidence a patent to John Whiteman for lot No. 1776, 9th district, dated 18th April 1787. The plaintiff's counsel requested the court to charge the jury : " 1st. That if the patent for the tract of land in dispute was made and delivered to Hinderliter, as assignee of Whiteman, it would vest no title in him, unless the number of this tract had been drawn from the wheel previously to either Whiteman or Hinderliter, and that of this fact the jury must judge from the evidence given on the trial. " 2d. That the patent to Hinderliter, which had been given in evidence, unless the name of Hinderliter or Whiteman was inserted in the general draft, and within the lot, must be postponed to the patent of the plaintiff; if the jury believe the name of Robert Par- ker was inserted in the general draft, and within the lot at the time it was drawn." The court charged the jury on the first point, that " the granting of the patent is evidence of the drawing of the numbers." And on the second point, that, " this omission by the officers of the state, would not vitiate a patent, if otherwise fairly obtained." Several errors were assigned, which are substantially embraced in the points above stated, and the answers of the court thereto. Foster, of Mercer, for the plaintiff in error, argued, that there was a difference between a patent granted by the states, and the king of England. The former gives no title, but is prima facie evi- dence of title ; the latter vests title until it is vacated. The one can always be contested by any other claimant to the land, the other cannot : 2 Sm. L. 191. He cited the 12th, 13th and 14th sections of the Act of 1785, 2 Sm. L., in relation to donation lands. The evidence given negatived the idea of regularity in the first grant. A patent is only prima facie evidence of a regular title. It may be obtained by fraud, or issued by mistake ; it is not conclusive : Bix- ler v. Baker, 4 Binn. 218. The first patent was issued without observing the requirements of the Act of Assembly, and must be postponed to the subsequent regular title. The assignee of a patent is in no better equity than the assignor : Gonzalus v. Hoover, 6 S. & R. 118. The court did not answer the points fully ; they did not tell the jury what the law would be, if the number in the patent had never been drawn : Vincent v . Huff, 4 S. & II. 298. The court took the fact from the jury. The patent to Hinderliter was but prima facie evidence of the facts recited ; and the presumption of regularity is removed by proof that it had not issued according to law. Sept. 1820.] OF PENNSYLVANIA. 503 [Little v. Hodge.] It is the appropriation of the land by the legislature, and not the patent, which gives the title. The entry of the name in the general draft is made a record, in lieu of recording the patent. Of Ilinderliter's patent there was no notice to Parker when he drew, in 17 ( J4, this number ; arid the former is guilty of that sort of laches which should postpone his claim. Moore and Ayres, contra. The patent is evidence per se until invalidated by conflicting evidence. Fraud is not to be presumed. The patent could not have issued, unless the number which it calls for had been drawn ; and so is the charge of the court. And if the number had been drawn, the omission on the part of the offi- cers intrusted with the duty to insert the name in the number in the general draft, and the number opposite to the name on the con- troller's list, would not vitiate the patent. The mistake of the officers could riot affect the title, and therefore the first patent must prevail. No fraud was proved, and besides, the finding of the jury proves that Whitman and Whiteman were different persons. The law does not say that the connected draft shall be a record. These drawings for donation lands commenced in 171>4, and con- tinued till 1804. If the plaintiff's draft had been antecedent to the defendant's patent, there might be some weight in their claim, but we arc first in time, and therefore first in right. The court declined hearing Banks, for the plaintiff in error, in reply. The opinion of the court was delivered by HUSTON, J. During the war of the Revolution, our legislature promised donations in land to the officers and soldiers of our army ; and after the war, measures were taken to survey the lands, and very particular direction given as to the mode of appropriating a tract to each soldier, in such manner that each might have the proper quan- tity, and no more, and might be able to ascertain with certainty the tract allotted to him. After the lands were all surveyed, and num- bered, a general draft or drafts made, in which the number was in- serted in each tract, a list of officers and soldiers entitled to lands made, see sect. 1>, of the Act of -4th March ITS"), and after evrry thing was prepared, a number was drawn for each. The number drawn was put in a column annexed to the list, op- posite the name of the person for whom it was drawn, and the name of the person, who drew a particular number, was inserted in that number in the general draft. This general draft was to be kept by the executive council until all applications were satisfied, and then to be deposited in the office of the master of the rolls, as a public record to serve to all intents and purposes in lieu of recording the 504 SUPREME COURT [Pittoburg [Little v. Hodge.] patent ; when the persons intrusted, who, under the old Constitu- tion were three of the members of the executive council, closed the drawing at any time, the wheels were closed, in their presence, and sealed ; and so continued deposited carefully and safely, until further drawing was required. It was then not easy after a name had once drawn a number, to return that number into the wheel. When a name had drawn a particular number, not only was the number set down opposite the name, but also the name was inserted in that num- ber in the general draft, and a report was made of the name which drew, and of the number drawn, to the president, or vice-president, who caused a patent to be made out, &c. Notwithstanding all these precautions it seems mistake or fraud has occasioned two patents to issue for the same tract ; and we are to decide which is entitled to the land. The officers intrusted could at no time proceed to give a patent to an applicant, for any tract he might ask. The law was imper- ative, he must take an equal chance, every one must draw, and he could not have the tract which he wished, or which the officers wished to give him ; a patent would be, and is void, unless given after drawing, and for the number drawn. This matter was sub- mitted to the court, and overlooked in the opinion. What was done in the present case ? We have evidence that only one person of the name of John Whiteman was in the controller's list. There is evidence that John Whiternan drew number 1776, in the Oth district, in the year 1787, and on the 18th of April 1787, a patent issued for this tract, number 1776, in the 9th district, to John Whiteman. Either this patent issued to the same man (his name being spelled slightly different), who drew number 177G, or to a different man, if to the same man, he has that tract, and is entitled to no more, and any claim he makes, or which any one under him makes to any other tract, must be a claim founded in dishonesty and fraud. If the patent issued to a man different from him who drew number 1776, that is, if John Whiteman, who got the patent, was a different man from him who drew number 1776, then the patent for that num- ber is void, and John Whiteman is yet entitled to number 1776, and to a patent for it ; but if there is but one John Whiteman, and he drew number 177G, in 1787, in no event can he draw another tract afterwards, nor can any one in his name or right obtain a patent for another tract. It is true, that independent of any other evidence, a patent would be presumptive evidence, that the patentee had drawn the number for which a patent issued to him ; and we might suppose his name had not been inserted in the list of those who drew, or that the num- ber drawn had through mistake or neglect, not been set opposite his name ; and further, that from another mistake or neglect, his Sept. 1820.] OF PENNSYLVANIA. 50/i [Little . Hodge.] name had not been inserted in the general draft, in the tract which he drew, and it would be a great deal to suppose all this, but here we are asked to do much more ; to throw away the evidence that he drew number 1776, and to suppose, without evidence, that his as- signee drew number 763, in 1791 ; and further that after 'he drew it, and after neglecting to insert his name in that number, in the general draft, and set that number opposite his name in the con- troller's list, we must suppose the officers put number 763 back into the wheel, wickedly and corruptly ; for that number was found in the wheel in 171*4, when it was drawn out by Robert Parker. I can appreciate the feelings of the judge, and his sympathy for the defendant, who has unfortunately purchased under & fraudulent patent, and spent time arid labor in improving the land ; but a little reflection will show us that he must bear his own loss, or obtain compensation from Ilinderliter. It never can be, that the owner of a tract of land must lose it, because a title to it has been forged, and by that forgery an innocent person has been imposed on. If any person is to apply to the state for redress, it must be the defendant. The officers of the state have done an act which has injured him. The plaintiff's right is regular and complete; and courts and juries will see that such a right is not to be given away from pity. Judgment reversed, arid a venire facias de nova awarded. INDEX. Abandonment, 450, 454. presumption of, 454. Abatement of suit, 117, plea in, 442. Account, administration, 401. settlement of, 401. guardianship, 282. public, 52, 252. Account render, 135. Acknowledgment, 135, 402. Acquiescence, 399. Action, form of, 96. amicable, 188, 229, 333. when it accrues. 140, 419. of partition, 461. right of, 85, 262. 442. for money had and received, 492. against several, 285. popular, 442. cause of, 383. for malicious suit, 232. when supported, 232. Actual settlement, 439. Ademption, 126. Administration, 161. account, 401. Administrator, 444. payment by, 188. suit by, 412. liability of, 188. sale by, 83, 96. de bonis non, 161. Adversary process, 333. Advertisement, 426. Affidavit, 421, 481. Agency, 375. proof of, 333. Agent, 333, 375. authority of, 375. pavment by, 375. Agreement, 2S5, 426, 474, 492. to forbear, .'.83, extinguished, 417. rescission of, 140. purol, 257, 484. of a plaintiff. 240. extinguished, 417. Alienation, 450. Appeal, 9, 21, 23, T4, 115, 207, 227, 252, 293, 322, 481, 487. quashed, 227. Application, 451. Appraisement, 188, 371. Appropriation, 44, 227. Approval, 462. Appurtenance, 402. Arbitration, 412. act, 293. Assets, administration of, 161. to pay legacies, 422. Assignee, 24, 220, 25'J. 373, 395,476, 484. Assignment, 24, 220, 259. 373, 395, 476, 4S4. voluntary, 198. Assistant deputy-surveyor, 1. Assumpsit, action of, II. Attachment, plea of, 442. Attorney-at-law, 264. 421, 454, 481. in-fact. 333. 444. Auditor-general, 52. Authority, color of, 297. proof of, 333. Award, 285. 364. not final, 364. Bail, 9, 395, 425. holding to, 232. additional, 293. absolute, 425. on appeal, 293. dispensed with, 293. special, 148. Bill of exception, 364. Bond, 280. assignment of, 257. condition of, 460. insolvent, 262. 437. administration, 419. judgment. 245. 460. official, .">_'. '.4. penalty of, 460. Book entry, 412. production of. 412. boundaries, 489. Calculation, 364. (507) 508 INDEX. Canal 4(12. Capacity, to take, 49. Capias ail reapondendum, 232. ad satisfaeiendum, 267. Certiorari, 2U7, 322. Cestui que trust, 52. Challenge, 32. Channel, 402. Character, 32. Character, evidence of, 297. Charge of court, 140, 389. Charity, gift to a, 49. Charter, 426. vacated, 426. Check, 161. Choses in action, 373. of the wife, 373. Christianity, 13. Circuit Court, 74, 449. decree of, 207. appeal to, 322. jurisdiction of, 449. return days of, 322. Cohabitation, 4- r >0. Collateral security, 216. inquiry, 267. Commission, 297. Commissioners, 426. promise of, 426, 462. Commissioners' warrant, 499. Common law, 450. Commonwealth, right of, 462. Common Pleas, decree of, 481. Compact, 383. Controllers' list, 501. Condition, breach of, 401, 460. Conditional verdict, 257. Confirmation, 32. Consent, 322, 454. Consideration, 220, 383, 462, 486. good, 220. valuable, 220. not expressed, 486. failure of, 476. Constable, 61. Construction, legal, 383. of foreign statutes, 383. Consummation, 417. Contract, 264. rescission of. 140, 492. nature of, 198. benefit of, 2H5. joint and several, 375. merged, 417. Contribution, 140. Conversion, 216. Conveyance, 474. Copy of record, 52. 389. Coroners' sales, 227. Corporation, promise of, 42P,. Costs, 23. llf>, 461, 487. payment of, 399. not recoverable, 46L taxation of, 61. Counsel, advice of, 188. Counts, joinder of, 161. Court, ecclesiastical, 13. Court, temporal, 13. order of, 395. charge of, 140, 389. rules'of, 229. Covenant. 417. Credits, 364. Creditors, 57. joint, 198. separate, 198. execution, 198. lien, 240. Crop, way-going, 224. when put in, 224. Damages, 462. nominal, 401 Date of entry, 271. Debts, of intestate, 447. lien of, 152. simple contract, 216. specialty, 447. partnership, 198. Decision, 306. publication of, 188. Declarations of grantor, 32. of testator, 126. of third persons, 426 Decree, 95, 227, 267, 481. partial, 227. final, 227. conclusive, 267. Deed, 32, 417, 486. absolute, 333. in trust, 389. by a partner, 285. date of, 402. of sheriff, 402. delivery of, 32. acknowledgment of, 402, 484. execution of, 32. of defeasance, 333 Default, judgment by, 229.- Defeasance, 333. Defence, 24, 152. 232, 245, 252, 257, 417, 437, 476, 481. one, conclusive, 152. collateral, 232. equitable, 257. Delivery, evidence of, 32, 402. Demurrer, 480. Deposition, 1, 297. 306, 454, 485. Depreciation districts, 489. Derelict, title, 74. Description, 232. INDEX. 509 Desertion, 449. Devastavit, 333. Devise, construction of, 49, 83, 322. 482. Devisee, declarations of, 30G. Division, of canal, 4G2. Disabilities, 6'. Discharge, 82, 207. Distribution, 280, 371, 481. Districts, 489. Docket-entry, 389. Donation lands, 501. Draft, general, 50 1. Drawing, 501. Ejectment, 1, 152, 264. Encumbrance, 198, 417. Endorser, 425. Entry, G, 129. date of, 271. Equity, 439. Equitable assignee, 24. extinguishment, 474. Error, 32, 140, 101, 232, 243, 300, 389, 395,401,402,425,460, 480. subject of, 395. writ of, 14,61, 73,74,82, 114, 135, 229, 421. Escheat, 52. Estate, 389. personal, 322. real, 322. Estate, privity of, 439. Estoppel, 402. Evidence, 140, 252, 297, 306, 333, 389, 444, 449, 495. parol, 32, 52, 126, 140, 161, 220, 364, 389,402,417,486. 495. preliminary, 216. prima facie, 52, 389 402. immaterial, 220. illegal, 412. presumptive, 501. conclusive, 402. secondary, 426. of character, 297, 412, 489. construction of, 383. corroborating, 161. before arbitrators, 412. Excess, released, 21. Execution, 61, 293, 425, 460. stay of, 240, 395. levied, 425. effect of, 484. superseded, 61. sale by, 198. Executrix, 333. Executor, 96, 161, 232, 422. duties of, 232. individual liability of, 232, 422. Executor (continued. ) suit against, 422. Experts, 161. Extinguishment, 417. equitable, 474. Fees, of prothonotary, 207. of office, 454. Feme covert, 6. liability of, 333. interest in land of, 371. executrix, 333. Fieri facias, 271, 484. Fiscal year, 252. Forbearance, 383. Foreign attachment, 117. statutes, 117, 383. construction of. 117, 383. evidence of, 117, 383. Forfeited bond, 267. Forgery, 161. Forged paper, 161. identity of, 161, 267, 402. Fraud, 32, 267, 402, 426. Fraudulent, 57. Gift, to a charity, 49. Grain, growing, 471. fall and spring, 424 Grantee, declarations of, 389. Guardians, 207. duty and liability of, 207. Habeas corpus, 82, 449. Handwriting, 161. comparison of, 161. proof of, 216. knowledge of, 216. Highway, 462. Iligh-water-mark, 462. Husband and wife, 333. assignment by, 373. in right of wife, 371, 389. desertion of, 449. Ignorance, 476. Imbecility, evidence of, 32. Improvements, 389, 462. Improvement right, 45. Incorporation, charter of, 426. Indemnity, 395, 484. Infant, 450. maintenance of, 450. Innocence, 450. Inquest, 495. Insanity, 32. Insolvent, 322. bond. 262, 437. law, 322, 373. trustee of, 262, 322, 437. duty of. 267. Inspection, 402. Interest, '23, 140. , Intestate, debts of, 447. 510 INDEX. irregularity, 229. when cured, 229. Issue, 152, 364. devisavit vel non, 306. trial of, 449. Joinder, in demurrer, 480. of counts, 101. Joint purchase, 140, 375. effects, 198. creditors, 198. commission, 198. contract, 375t Judgment, 152, 395, 400. quod computet, 135. original, 04, 245. amicable, 15. conclusive, 152. irregular, 228, 245. interlocutory, 117, 135. fraudulent, 245. final, 73, 117. lien of, 64, 129, 484. entry of, 245. arrest of, 383. assignment of, 395. revival of, 04, 245. by default, 222, 229, 245, 399, 474, 484. opened, 115, 481. Judicial sales, 96. oaths, 13, 14. Jurisdiction, 21, 449. Juror, 32. Jury, calculation of, 364. province of, 383, 402. Justice of the peace, 15, 61, 297. commission of, 297. Land, parol gift of, 389. assets, 152. levied, 484. sale of, 471, 492. conveyance of, 471. charge on, 96. six per cent, of, 402. advertised, 484. donation. 501. lien on, 484. depreciation, 489. unseated, 499. partnership in, 140. specifically in, 371. Landlord and tenant, 402. Law, written, 383. unwritten, 383. Leading question, 297. Lease, 224, 402. Legacy, 90, 322, 422. lien of, 96. payment of, 96, 422. Legitimacy, 450. Lessees, 04. Lessor, 402. Levy, 271, 425. Lien, 44, 04, 90, 152, 240, 271, 322, 422,480,481, 484. kept alive, 271. divested, 480. of judgment, 129, 271,422,481. not affected, 481, 484. creditors, 240. Liberari facias, 495. Limitation, 210. statute of, 6, 81, 135, 140,216, 322, 442. 492. Line, division, 439, 489. ancient, 489. district, 489. Malicious suit, 232. Management, 402. Marriage, 450. evidence of, 450. Merits, defence on, 285. Minutes, short, 148. Misrepresentation, 402, 444. Mistake, 364. Mortgage, 44, 188, 280, 333, 402. 480. assignment of, 280. sale on, 402. of personal property, 57. lien of, divested, 480. unrecorded, 247. Mortgaged premises, 44 Motion to quash, 322. Municipal law, 383. Muniments, 60. Neglect, 229. Neighborhood, 32. New trial, 392. Newspaper, 426. Nominal damages, 401. Notice, 462, 470. reasonable. 402. service of, 485. Nullity, 293. Number, drawn, 501. Oath, who to make, 481. judicial, 13, 14. who to administer, 421. Objections, 252, 297, 420. too late, 322. Obligation, relief from, 420, 482. Occupation, description of, 93. Occupiers of land, 04. Office, of justice, 15. color of, 297. Officer, public, 52. accountant, 252. Officers and soldiers, 501. Official bond, 52 INDEX. oil Opinion conclusive, 293. Order of the court, 73, 395, 481. Orphans' Court, 322. appeal from, 322 order of, 83, 96. power of, 282. Ownership, acts of, GO, 74. indicia of, 57. Papers, inspection of, 4()2. Parol evidence, 120, 220, 417, 486. gift, 389. agreement, 257. gift of land, 389. Partition, 371. action of, 401. costs in, 471. Partner, powers of, 285. payment by, 375. remedies of, 140, 198. responsibilities of, 140. interest of, 198. equity of, 198. Partnership, 135, 140, 198. debts, 198. effects, 198, 375. sale of, 198. Party, 421, 481. how made, 96. Patent, 81, 417, 501. Patenting money, 188. Pawn, redemption of, 210. Payment, 220, 240, 375. presumption of, 322. plea of, 480. Penalty, 460. Perjury, 14. Personal property, 57, 471. appropriation of, 188. Petitioners for review, 243. Plea iu bar, 442. non est factum, 285. special, 442. in abatement, 442. stricken off, 285. of payment, 480. Pleading. 152, 229. Pledge, 216. Popular action, 442. Possession, 6, 373, 389. adverse, 6. of personal property, 57. Power of attorney. 444. Practice, 229, 243, 293. Praocipe, for writ of error, 61. Preference, 57, 198, 280, 447. Presumption, of satisfaction, 419. conllicting, 450. Principnl and surety, 395, 425. Privity, 395, 439. Probable cause, 232. Process, 96. adversary, 333. Profit and loss, 140. Promise, to testator, 161. to administrator, 161. proof unnecessary, 383. Property, personal, 57, 471. Prothonotary, 14, 2U7, 252. account, 252. Public, highway, 402. purposes, 402. Public officer, 52. Purchase, joint, 140. Purchaser, from administrators, 83. from sheriff, 402. from collector of revenue, 54. from county treasurer, 54. separate, 198. Purchase-money, 412, 417, 474, 482. Quash, motion to, 322. Quo warranto, 420. Question, leading, 297. Quarter Sessions, 449. approval by, 462. Ratification, 1. Recital, 402. Recognisance, 9, US, 148, 371, 401. form of, 148. condition, of, 401. Record, 129. copy of, 389. Recovery, against one, 285. Redemption, 210. right of, 54. Registers' Court, 306. office, 401. Release, 412, 444, 402, 482. Religion, 13. Rent, 224. Repeal, of charter, 426. Representatives, personal, 152. Reputation, 1, 450. Report, of viewers. 462. set aside, 402, Reservation, 402. Residence, 4S5. Retraxit, 243. Return days of Circuit Court, 322. of term, 271. Reviewers, 243. Right of action, 267. express. 402. implied, 462. River, channel of, 462. Road, 243. Rule, enforced. 399. Sale, by administrator, 83, 96. Sale, advance on, 188. treasurer's, 54, 499. judicial, 44, 96. 512 INDEX. Sale (continued). by execution, 198. of land, 471. by sheriff, 44, 402, 447, 480, 484. of partnership effects, 198. proceeds of, 447. Sanity, 32. Satisfaction, 220, 425. presumption of, 419. Scire facias, ( J, 19, 64, 245, 246, 271, 426. Sealed instrument, 285 Security, 2SO, 482. collateral, 216. freehold, 207. Sentence, 94. Settlement, 282, 444. Sheriff, 94. sale, 227. duty and liability of, 94, 495. suit against, 437. return of, 495. Slander, action of, 14. Slave, 93, 188. services of, 188. Special court, 129. State treasurer, 52. Statement, 383. Statutes, foreign, 383. in connection, 462. Stock, fictitious, 426. Submission, 364. and award, 364. Subscriptions, of stock, 426. Suit pending, plea of, 442. Summons, 96. Supersedeas, 61. Supreme Court, 297. duty of, 462. Surety, 52, 24U, 257, 395. discharged, 240. Surplus, 4!S4. Surplusage, 232. Surrender, 267. Survey, 454, 489. return of, 80, 454. Surveyor, deputy, 79. assistant, 1. Surveying fees, 454. Survivorship, 373. Susquehanna, 462. Taxation, of costs, 61. Tenants, 71. Terre-tenant, 64, 96, 152, 245. Term, 224, 271. Terms, new trial on, 399. Time, 264. computation of, 271, 419. reasonable, 383. lapse of, 419, 489. Title, 74, 402, 454. derelict, 74. by actual settlement, 439. privity, 439. Transcript, 20, 115, 271. Transfer, 484. Treasurer's sale, 54. Trial-list, 129. Trustee, 49, 220. responsibility of, 188, 207. of insolvent, 220, 262. Trust-fund, 220. Vendee, 471. of administrator. 96. of sheriff, 96, 152. Verdict, general, 161. conditional, 257. Void and voidable, 32, 297. View, 243. Viewers' report, 462. Waiver, 267, 285, 480. Ward, 207, 282, Warrant, 454. unreturned, 74. descriptive, 74. vague, 74. removed, 74. of attorney, 245, 460. of commissioners, 444. Warranty, general, 417. Water-right, 402. Way-going-crop, 224. Widow, alienation by, 450. Wife, interest in land, 371. desertion of, 449. choses in action, 373. Will, 126. Witness, 216, 412, 444,495. Words, actionable, 12. legal construction of, 383. Work, payment in, 426. Writ or error, 14, 61, 73, 74, 82, 114. 135, 229, 421, 460. withdrawn, 114. oath to ground a, 421. Writ of inquiry of damages, 229. executed, 229. Yeoman, 93. INDEX TO THE PRINCIPAL MATTERS. ABANDONMENT. LAND AND LAND OFFICE, 4. ACCOUNT-RENDER. The judgment of quod computet, in an action of account-render, In interlocutory, upon which a writ of error will not lie. Btitler v. Ztiylcr, 135. ACTIONS IN GENERAL. INSOLVENT, 1. MALICIOUS PROSECUTION, 1, 2. PLEADING. ACTION ON THE CASE. MALICIOUS PROSECUTION, 1,2. ACT OF ASSEMBLY. QUARTER SESSIONS, 1. ADMINISTRATOR. EXECUTORS AND ADMINISTRATORS. AGENT AND FACTOR. EVIDENCE, 28. WITNESS, 2. An agent thus proved his own authority, " I never executed any other deed of defeasance than the one in question. I frequently wrote letters, signed receipts, and other papers of consequence for him (the principal), by which he at all times considered himself bound. I kept all his books of accounts for upwards of thirty years ; never had a written power of attorney.' 1 Held, that the deed of defeasance, executed by such an attorney, in the name of his principal, is not evidence to convert an abso- lute deed to the principal into a mortgage. Gratz v. Philips, 333. APPEAL. COSTS, 2, G. APPLICATION. LANDS AND LAND OFFICE, 4, 5. APPURTENANT. SHERIFF'S SALE. ARBITRAMENT AND AWARD. BAIL. COSTS, 2, 6. 1. Where the issued joined was on the plea of a submission and an award, and the submission was general " of and concerning the differ- ences depending between" the parties; an award setting forth that the arbitrators had examined their several books of account, and taken into consideration a judgment bond to the plaintiff from the defendant, and finding a particular sum due to the former on that bond, without deter- mining how much, or whether anything was due on the other subjects of difference submitted to or examined by them, is not final, and there- fore it is bad. Johnston v. Jirackbill, 364. 2. Where issue is joined on this plea, evidence of mistake and inad- 1 P. & W. 33 (513) 514 INDEX. ARBITRAMENT AND AWARD. vertenco in the arbitrators in making the award is made inadmissible. But where such evidence is received under this plea, and the award is a nullity, the court will not reverse for the admission of such evidence. Johnston \. Jira'-kbill, 3l>4. ASSIGNEE BILLS OF EXCHANGE AND PROMISSORY NOTES, 1. BOND, 1, 2, 3. 1. An assignee of bonds, which are secured by a mortgage, is entitled to all the security which the mortgage affords, although he did not know of its existence when he took an assignment of the bonds. Jietz v. llteb- ntr, '2^0. '2. An assignment of the mortgage deed, to one who holds part of the bonds, gives liim no preference over the other bond-holders, in the dis- tribution of the proceeds of sale of the mortgaged premises. Id. ASSIGNMENT. ASSIGNEE. HUSBAND AND WIFE, 2. ASSUMPSIT. CONSIDERATION. 1. GUARDIAN AND WARD, 5. LIMITATIONS, 9. ATTACHMENT. DOMESTIC. PLEADING, 15. ATTACHMENT, FOREIGN. 1 . A debt due to one who is an applicant for the insolvent laws of Maryland, and for whom a provisional trustee has been there appointed, is not subject to a foreign attachment in Pennsylvania, it being in yrtinio leijis. Mullikeu v. Auyhinbamjh, 117. '2. A foreign attachment will lie in Pennsylvania, at the suit of a citizen of another state. Id. 3. Qucsre. Whether a foreign attachment abates by the death of the defendant, after interlocutory and before final judgment. Id. ATTORNEY. ERROR, 1, 19. JUDGMENT. 4. SHERIFF'S SALE, 10. Where judgment in ejectment was entered by agreement of the parties, to be released on the payment of a certain sum, on or before a certain day. and the money is not paid on or before the day, the judgment becomes absolute, and the receipt of the money by the attorney of the plaintiff, after the day, without his knowledge, will not deprive him of his right to the land. Gable v. Haiti, 264. AWARD. ARBITRAMENT AND AWARD. BAIL. MALICIOUS PROSECUTION, 1, 2. PRINCIPAL AND SURETY, 2. RECOGNI- SANCE, 2. 1. The bail on an appeal from the award of arbitrators, under the Compulsory Arbitration Act, is not subject to the practice in reference to special bail. Where the appellee is dissatisfied with the bail, his course is to apply to the court for a rule for additional bail, and the opinion of the court that the bail is sufficient, is conclusive ; he cannot treat it as a nullity, and issue execution. Snyder v. Zimmerman, 293. 2. Bail may be dispensed with altogether, and by suffering a term to pass without objection on the part of the appellee, it is dispensed with. Id. BARGAIN AND SALE. DEED. FRAUDS AND PERJURIES. Where no consideration is expressed in a deed of bargain and sale, parol evidence may be given to show that a consideration did pass from the grantee to the grantor. White v. Weeks, 486. INDEX. 515 BILLS OF EXCHANGE AND PROMISSORY NOTES. If the payer of a note stands by and sees it assigned to a third person, without giving the assignee notice of an existing defence, he Khali aft-r- wards pay the amount of the note to the assignee, although the consider- ation thereof should have entirely failed; and whether his conduct pro- ceeded from ignorance or design. Decker v. Eiseiihauer, 470. BOND. ASSIGNEE. EQUITY, 1. JUDGMENT, 8. 1. If one who is about to receive the assignment of a single bill, call upon the payer to know whether ho will pay the money, and is informed by him that he will, he cannot afterwards set up any defence again*! the payment of the money to the assignee, which existed previous to such declaration. Elliot v. Gallon, 24. '2. One about to take an assignment of a bond, is bound to inquire into every circumstance that might be set up against payment of any part of the debt, and having failed to do so, he stands exactly in the place of the obligee. Frantz v. Ilrown, 2.07. 3. It is competent, therefore, for an obligor to set up as a defence to the payment of his bond in the hands of an assignee, a parol agreement between him and the obligee, made after the bond was executed, but before it was assigned, that in a certain event, which might and did hap- pen after the assignment, the bond was not to be paid. Id. CANALS. PRACTICE, 8. QUARTER SESSIONS, 1. ROADS AND BRIDGES. 1. An application by the owners of property, under the Act of Oth April 1827, for damages done by the location and construction of the Pennsylvania canal, is premature, if made after the completion of the canal upon the land of the petitioner, but before the completion of that division of the canal upon which such lands are located. Commonwealth v. Fisher, 462. 2. The Acts of the 25th February 182(5, and Oth April 1827, on this subject, are to be construed in connection with each other, and by such construction it is necessary that the viewers appointed to assess the dam- ages done to the land of an individual, should, in their report, state the courses, distances and quantity, with such references as will designate the exact property converted to the use of the state. A/. 3. The sixth section of the Act of K)th April l>2l>, gave authority to the commissioners, to take releases to the Commonwealth from individ- uals, through whose lands the canal might be thereafter located. /-/. 4. The consideration of such releases, so taken, has not failed, because the eastern and western waters have not been united by that route of the canal along which the relea.sors live. The consideration is. that the canal shall pass through the land of the releasor. Id. CIRCUIT COURT. 1. A writ of error will not lie to remove a judgment in the Circuit Court to the Supreme Court, in any case in which the party might have had a remedy by appeal. Elliott v. Sanderson, 74 2. In case of appeal from a decree of the Circuit Court, a certiorari is not necessary, nor can the prothonotary demand his fee before enter- ing it. Koniijmachcr v. Kinimel, 207. 3. The return-days of process into the Circuit Court from the Common Pleas, Quarter Sessions or Orphans' Court, by Act of A.-soinblv. are the third Monday in March, the first Monday in Septomln'r. and tlie second Monday in December in each year. A certiorari is nut necessary to remove a record on appeal from the Orphans' Court to the Circuit Court. feathcrs's Appeal, 322. 4. Where an appeal is taken from the Orphans' Court to the Circuit Court, the appeal is not required to be filed before the next return-day 516 INDEX. CIRCUIT COURT. after it is tuken, nor can any rule be taken in the case until then : but if the record be filed before the return-day, and the cause is heard and decided by the Circuit Court without objection, it is too late to take that objection in the Supreme Court, after the cause is brought there upon appeal by a motion to quash. Feather g' 9 Appeal, 322. 0. The Circuit Court has no appellate jurisdiction of proceedings in the Quarter Sessions, when not according to the course of the common law ; hence it has not jurisdiction of a proceeding against a husband for deserting his wife and children. McKet's Case, 449. 6. The Circuit Court may remove a cause by habeas corpus, with a view to the trial of an issue, but it can only do so when the issue is according to the course of the common law. Id. CONDITION. JUDGMENT, 8. RECOGNISANCE, 3. CONSIDERATION. BARGAIN AND SALE, 31. CANALS, 4. An agreement to forbear to sue for a reasonable time, is a considera- tion certain enough upon which to sustain an action. Sidicell \. Evans, 383. CONSTABLE. A justice of the peace has power to supersede an execution issued by him ; and such supersedeas will exonerate the constable from liability. Shuman v. Pfotttz, 61. CONTRACT. CONSIDERATION, 1. FOREIGN LAWS AND JUDGMENTS, 1. CORPORATION. 1. A charter of incorporation cannot be declared void in a collateral suit, it can only be vacated by a scire facias to repeal it ; or on a writ of quo warranto at the suit of the Commonwealth. McCona/ty v. The Cen- tre and Kitshacoqillas Turnpike Road Co., 426. 2. An agreement between commissioners authorized to take subscrip- tions of stock, that a certain number of shares of fictitious stock shall be subscribed, in order to enable them to obtain a charter, is a fraud upon the bona fide subscribers, which will relieve them from any obliga- tion to pay. /'/. 3. A declaration made by a third person, in the presence of the com- missioner, to one about to subscribe for stock, that he can pay his subscription in work, and this is not objected to at the time by the commissioner, must be taken as his declaration ; and there is no distinc- tion between the commissioner and the corporation, in regard to this pro- mise. Id. COSTS AND FEES. CIRCUIT COURT, 2. ERROR, 4. PRACTICE, 5, 6. 1. A. brings an action of assumpsit before a justice of the peace against B., and recovers a judgment for a certain sum, from which B. appeals; the cause being afterwards tried in the Common Pleas, a verdict and judgment was rendered in favor of A. for the same sum : Held, that A. was entitled to recover bis costs since the appeal. Johnston v. Per- kins, 23. 2. Where the defendant, under the Act of the 20th March 1810, regu- lating arbitrations, appeals from the award of arbitrators, and a general verdict passes for him, he is entitled to the costs which follow a final judg- ment; such case is not within the provisions of that act, as to costs, and they are given by the law as it existed before the passage of that act. (Jallfitin v. Common, 115. 3. Where a transcript of the judgment of a justice of the peace is filed in the office of the prothonotary of the Court of Common Pleas, and INDEX. 517 COSTS AND FEES. the judgment is opened, and the defendant let into a defence in that court, and a verdict is rendered for the defendant, the one hundred dollar act, regulating the payment of costs on appeal from the judgment of a justice, does not apply. Gallatin v. Cornman, 11.0. 4. Costs are not recoverable by either party in an action of partition. Stewart v. Baldwin, 461. 5. Costs are exclusively a matter of statutory creation. 1<1. 6. A judgment was rendered by a justice of the peace for the plaintiff, the defendant appealed to the Common Pleas, he afterwards appealed from an award of arbitrators against him, and paid the costs. Upon a trial of the cause by a jury, the defendant gave evidence which had nut been given to the justice nor to the arbitrators, and a general verdict was rendered in his favor : Held, that he was entitled to recover from the plaintiff the costs which he had paid upon the appeal, llonuiter v. Brown, 487. COURTS. ERROR, 14, 18. EVIDENCE, 19. FOREIGN LAWS AND JUDGMENTS, 1. DAMAGES. QUARTER SESSIONS, 1. DEBTOR AND CREDITOR. A creditor who has obtained judgment against the principal, against the endorsers, and against the absolute bail of the principal, and has issued execution and levied upon the land of the principal or of the abso- lute bail, may, nevertheless, have execution of the chattels of the endor- sers. Nothing but actual satisfaction can prevent him. Gro v. The Huntinydon Bank, 425. DEED. AGENT AND FACTOR, 1. BARGAIN AND SALE, 1. EVIDENCE, _ofore a certain dav, time is of the essence of the contract : and if the money tie not paid on or before the day, the judgment becomes absolute and inde- feasible. Gublc v. Hain, 264. 4. The receipt of the monev. by the attorney of the plaintiff, after the day stipulated tor payment without the knowledge of his client, will not 518 INDEX. EJECTMENT. prevent the plaintiff from pursuing his judgment to execution, and obtaining the possession of the land. Gable v. //am, 264. ENCUMBRANCE. See INCUMBRANCE. EQUITY. ASSIGNEE, 1, 2. BOND, 1, 2, 3. EXTINGUISHMENT AND SATISFACTION, 3. VENDOR AND VENDEE, 1. 1. In a case where chancery would enjoin an obligee in a bond or his assignee from proceeding at luw, while the obligor remains a loser or in jeopardy as a surety, evidence is admissible to enable the jury to pro- duce the same result by means of a conditional verdict. Frantz v. Brown, 257. 2. A. being the owner of a tract of unimproved land, sells one hun- dred acres to B. and one hundred acres to C. ; B. and C. go upon the ground and mark a division line between them ; it was afterwards dis- covered that A. had no title to the land: B. then went upon it, had a survey made of four hundred acres, including the oue hundred acres sold to C. and acquired title by actual settlement. Held, that there was not such a privity of estate or title between B. and C. as to prevent B. from thus acquiring for himself, a title to the whole of the land. Smiley v. Dixon, 43U. ERROR. ARBITRAMENT AND AWARD, 2. EVIDENCE, 17. PLEADING, 10, 17. PRACTICE, 1, 7. 1. The prothonotary of the Court of Common Pleas, has no power to administer the oath required to obtain a writ of error. Pumroy v. Lewis, 14. 2. In a case which originated before a justice of the peace, from whose judgment there was an appeal to the Common Pleas, whore a verdict and judgment was rendered for a sum exceeding the jurisdiction of the justice, this court affirmed the judgment upon the plaintiff's releasing the excess. Darrak \. Warnock, 21. 3. An execution issued upon a judgment out of the Court of Common Pleas, is not removed into this court, unless specifically mentioned in the praecipe and writ of error. S/imnan v. 1'J'outz, 01. 4. This court will not hear the first allegation of error, in the taxa- tion of a bill of costs; the motion to correct the error must be first made in the court below. Id. 5. A writ of error will not lie upon an order of the Court of Common Pleas overruling a motion to strike off an appeal, and setting aside an execution, supposed to have been improvidently issued. Gardner \. fiypy's Adm'r, 73. 6. A writ of error will not lie to remove a judgment in the Circuit Court, to the Supreme Court, in any case in which the party might have had a remedy by appeal. Elliott v. Sanderson, 74. 7. A writ of error will not lie- to the opinion of the Court of Common Pleas, discharging a person, on a writ ol habeas corpus, from servitude. linsvell v. Cfimvifimreallh, H2. 8. A party who has recovered a judgment in the Court of Common Pleas, and received the amount of it from the defendant, will not be permitted to reverse that judgment on a writ of error. Laiiijhlin v. Laughliris Adni'r, 114. '.'. Quave. If a plaintiff in error withdraws his writ, and has an entry made upon the docket, "writ of error withdrawn," whether it is not a retraxit, and will not bar another writ. Id. 10. Error does not lie upon a judgment quod compulet in account- render. Jieiller v. /?< tylcr, 1 35. 1 1. In an action by Campbell's Executors r. Cdhoun's Administrators, for contribution on account of purchase-money and interest paid by the INDEX. 519 ERROR. former on a joint-contract, the court below charged tin- jury, that if the contract were not rescinded between Campbell atid Colhoun, the former could recover for interest paid. The jury found a yentral verdict for defendants . Held, that it appeared that the jury went on a distinct ground of fact, " the rescission of the contract" and if error had lx,'en committed in the charge as to the principle, this court would not reverse on that ground, as it was without prejudice to the party. Campbells Ex 1 rs v. CoUiouii's Adrurs, 140. 12. When the Court of Common Pleas erroneously permit evidence to bo given to the jury, no such evidence being afterwards given, this court will not reverse the judgment, hank of Pennsylvania v. Jacobs' s Adm'rs, 161. 13. Where it appears by a calculation, that the jury did not allow credits, of which incompetent evidence was given, the judgment will not be reversed on a bill of exception to such evidence. Johnston v. Mrackbill, 304. 14. A judge cannot be required to give a Icijal construction to the words of a witness, and to say whether in point of law they sustain the allegation in point of fact. Siiltrell v. fjrans, 383. lli. A certified copy of a docket entry of a suit cannot be received to establish the existence of a former suit pending for the same cause; and if received, the error will not be cured by the instruction of the court in their charge to the jury, to disregard it. Ini/ham v. Mason. 3*9. 1C). An order of court making an assignment of a judgment to u surety, may be reviewed in error. Jiurns v. Huntim/dmt Hunk, 395. 17. It is error to submit a question of law to the jury. Common- wealth v. Henderson, 401. 18. If the court should decide from inspection of the papers, that a water-right and tilt-hammer would pass by a sheriff sale as an appur- tenant, it would be error; it is a question of fact for the jury. Hail v. Jienner, 402. 19. The oath upon which to ground a writ of error, must be made by tlu; party, and it is not sufficient if made by the attorney. Bryan v. McCulloch, 421. ESTATE. WILL, 2. ESTOPPEL. LANDLORD AND TENANT, 1, 2. PLEADING, 2, 3, 4. SHERIFF'S PEED, 1. EVIDENCE. AGENT AND FACTOR, 1. ARBITRAMENT AND AWARD, 2. EQUITY. 1. ERROR, 12, 13, 14. IlrsnvND AND WIFE, I. INSOLVENT, 3. LANDS AND LAND OFFICE, 9, 15, 10. LEGACY, 4. MALICIOUS PROSECUTION, 1. '2. OFFICE AND OFFICER, 1. PARENT AND CHILD, I. PLEADING, 14. PRAC- TICE, 0. PRESCRIPTION AND PRESUMPTION, 2. PROTHONOTARIKS AND CLERKS OF COURTS, 1. SURVEYOR. 1. WITNESS, I, 2. 1. In ejectment to recover a tract of land, whore reference is made in a deposition to lines run and surveys made, and a draft is annexed, which does not embrace all those lines and survevs, but only those of the tract in dispute, it will be sufficient, if the defendant \va,s present to cross-examine, and did not ask for any other or furl her draft, .Swiiiy v. Smith's Ex'rs, 1. 2. Declarations of a grantor made subsequently to the execution of a deed, cannot be given in evidence to invalidate that deed. ('Ac.** v. Chess. 32. 3. Hut when the question to be determined by the jury is whether tho grantor was sane or insane, at and about the time the deed was executed, it is competent to give evidence of his declarations made soon 520 INDEX. EVIDENCE. after the execution of the deed, for the purpose of proving imbecility of mind. Chess v. Chess, 32. 4. A man's neighborhood is co-extensive with his intercourse among his fellow citizens. One witness, therefore, testified that he knew the general character of another witness, whose character was in issue, but he did not know his character in his immediate neighborhood. It is competent to ask the witness whether he would believe him on his oath. Id. 5. The account of a public officer, settled by the auditor general, and approved by the state treasurer, and duly certified by the auditor general, to be a true copy from the records of his office, is, priina facie, sufficient evidence to enable the Commonwealth to recover the balance due by such officer, in a suit brought on his official bond against his surety. Commonwealth v. Farrelly's Administrators, 52. 6. Campbell, in 1805, bought of W. 5000 acres of land, at $4 per acre. The purchase was at a credit of eight years, with interest at three per cent., after which the principal was to be paid at three, six and nine years, reserving six per cent, on unpaid balances. By settlement made in 1819, Campbell had paid the interest to W. up to that time, and $4429.42, on account of principal. In an action of assumpsit, brought in 1827, after Campbell's death, against the administrators of Colhoun, for money so paid to W.,in which the evidence to charge the defendants consisted of a series of letters written by Colhoun to Campbell, from 1805 to 1814, from which it appeared that Colhoun had been let into a participation in Campbell's purchase. Held, that six letters from Camp- bell to Colhoun, in a period of as many years from 1814 to 1820, in which there was no allusion to the subject, were evidence of the rescis- sion of the agreement between Campbell and Colhoun. Campbell's Executors v. Colhoun' a Adm'ra, 140. 7. Upon the allegation of forgery, it is not necessary to produce, as witnesses, all the persons in whose possession the forged paper had been, in order to identify it its identity is a matter of fact for the jury. Hank of Pennsylvania v. Jacobs's Adm'rs, 101. 8. A comparison of handwriting is admissible in evidence in civil cases in corroboration of a belief of a witness founded upon actual knowledge. Id. 0. The testimony of an expert, who speaks alone from his knowledge and skill in handwriting, it is not competent to establish a forgery. Id. 10. A witness is incompetent to prove a signature, without proof of having seen the person write, or of other circumstances to show know- ledge of the handwriting which he is called to prove. Boyd's Admrs v. Wilsr.n, 210. 11. It is not enough, without such preliminary proof that the witness swears that the signature offered is the signature of the person whose it purports to be. Id. 12. Trustee for the payment of debts, paid a judgment against the debtor, and took an assignment in writing on the back of the bond on which it was entered, expressed to be for value received: Jftld, that it was competent to prove by parol that the assignment had been made to enable the trustee to enter satisfaction on it, and not to preserve it is a subsisting debt. Keller \. Leib, 220. ]'.',. If evidence must be immaterial when given, the court ought to reject it. Id. 14. Whore the plaintiff interrogated defendant's witness as to a con- versation which had taken place between him and a certain W. B. ; and the witness stated the conversation, by which it appeared that he had not told W. B. all that he related in court, and the plaintiff thon asked him "why did you not tell the whole truth to \V. B. ?'' and the witness re- plied, " I kept it back because I was living in the plaintiff's house, a* INDEX. 521 EVIDENCE. tenant, and if T had told it, he would have thrown mo out nock and heels, he would have knocked my brains out. As soon as fie did know it, he took out a landlord's warrant," and the plaintiff then called W. B. and by him gave evidence to contradict the statement made of the con- versation. Held, that it was competent to the defendant to give evidence that the plaintiff was a quarrelsome and dangerous man to those ho had a prejudice against. Me Kim v. Homers, 287. If). When a party has an opportunity of being present at the taking of a deposition, and does not choose to avail himself of it, he shall not afterwards be permitted to except to a leading question and answer in such deposition, or to make formal objections against it. When a party attends and objects to the form of the question, then if the opposite party persists, he does it at his peril. Id. 1C). A deposition taken in the Registers Court upon hearing of any cause litigated in that court, but not decided, is not evidence upon the trial of an issue between the same parties, directed by that court without proof that the deponent is dead, out of the jurisdiction of the court, or unable to attend. Dietrich v. Dietrich, 300. 17. Quicre, Whether the decision of the trying court upon the pre- liminary proof of the inability of the witness to attend is the subject of error ? Id. 18. Qucere. Upon an issue devisavit vel no/i, are the declarations of a devisee, who is a party to the issue, evidence, where there are other devisees or legatees not parties ? Id. 111. The construction of written evidence is for the court, and of parol evidence for the jury; and an admixture of parol with written evidence draws the whole to the jury. Sidwell v. AV. If a grantor make a deed with general warrantee, he cannot show by parol that an agreement was made a few days before, that the grantee was to patent the land. Mch'eiiiHin v. Du>jhman, 417. 27. Satisfactory proof of the loss of a written advertisement must bo given to lay a ground for the admission of the advertisement copied into the newspaper. McConahy \, The Centre and Kishacoquillas Turnpikt Itoad Co., 42ti. 28. A power of attorney, executed by an administrator, who doos not therein stvle himself as such, by virtue of which a dispute is settled be- tween his intestate and a third person, by the attorney in fact, is compe- tent evidence to go to the jury. with, the settlement and release, particu- 522 INDEX. EVIDENCE. larly if it did not appear that the administrator had any account in his own right to settle. Irwiit's Adm'r v. Allen, 444. 29. It is a fatal objection to a deposition taken to be read in evidence in a cause, that it is in the handwriting of an attorney concerned in the cause, or specially employed by the party for that purpose, unless the opposite party or his attorney be present and consent thereto. Addle- man v. Masterson, 454. 30. Where a plaintiff and defendant reside in the same town, a copy of a notice to take depositions left at the house of the defendant, with the defendant's daughter, by the plaintiff, more than ten days before the day appointed for taking the depositions, is not a sufficient service of notice. Lemon v. Kishop, 485. 31. Where no consideration is expressed in a deed of bargain and sale, parol evidence may be given to show that a consideration did pass from the grantee to the grantor. White \. Weeks, 485. 32. It is competent to prove that the words " proceedings stayed by plaintiff's attorney," which had been endorsed on a writ of liberari facias, and signed by the sheriff, and which were struck out or erased by a line run through them, though still legible, were his return to that writ, and that he had not struck them out. Meredith v. Shetcell, 495. 33. It is competent to prove, and that by the sheriff, that upon such writ of liberari facias, he did not deliver the land to the plaintiff, although it was set forth in the inquisition returned with the writ that the sheriff and inquest had caused to be delivered the property extended, " until the debt and damages in the same writ mentioned, together with interest, &c., be fully levied." Id. EXECUTION. DEBTOR AND CREDITOR, 1. JUDGMENT, 10. PRACTICE, 7. 1. The bare seizing of land in execution to the value of the debt, is not a satisfaction. Gro v. The Huntingdon Bank, 425. 2. An inquest under a liberari facias can only determine the value of the land, the yearly rents and profits, and the term during which it shall be extended. The delivery of the land is the executive duty of the sheriff alone. Meredith v. Shewell, 495. EXECUTORS AND ADMINISTRATORS. EVIDENCE, 2H. INTESTATE AND DECEDENT, 4, 6. PLEADING, 1, 8, 9, 10. PRESCRIPTION AND PRESUMPTION, 2. 1. Where a personal estate is appraised, and a part taken by the heirs at the appraisement, and a part sold at an advance upon the sum at which it was appraised, the administrators will not be charged with a propor- tional advance on the goods retained, without any evidence that the goods retained were of greater value than their appraised price. A'j'/j<7 v. Mar- rison's Ad'mr, 1K8. 2. Qinpre. Under what circumstances should an administrator be charged with an advance on goods so taken ? Id. 3. J. M. died in 1810, having in his possession a bond on his brother, D., given in 1794, which come to the hands of the administrator, who, with D. in 1811, although the cause of action exceeded $KH), entered lx;fore a justice of the peace an amicable action, and referred all matters in variance to referees, who reported in favor of D. ; from this the administrator appealed. In 1H14. the iSupreme Court decided, that a justice had not jurisdiction by amicable action, and reference, when- the cause of action exceeded 100. This decision was published in 1*18; the appeal was then quashed : D. obtained judgment by scire facias, reviving the original judgment in his favor before the justice. To this the administrator issued a certiorari, reversed the judgment for want of jurisdiction in the justice, and to the next term, in 1S20, brought suit on the bond, and recovered judgment. Id. INDEX. 523 EXECUTORS AND ADMINISTRATORS. D., who in 1820, was solvent, when judgment wsxs rendered against him, had become insolvent, and the dt;bt was lost. By referring to the record of the proceeding in court, it appeared the administrator had eminent counsel. Jleld, that although the proceeding before the justice had been a mistake, the administrator was not liable i'or the debt which had been lost. King v. Morrison's Adm'r, 188. 4. J. M. left a slave of advanced age, who by the advice of appraisers, and the family, was not appraised, arid lived with the family till they separated, and with the widow until her death, and since that lived with the administrator. At the time of the account taken, IS'JT, she was of no value, and the administrator agreed to keep her during her life. Held, That under the circumstances of the case, the administrator was not chargeable with the value of her services. Id. 5. If executor or administrator sells goods of testator or intestate, and do not take security for the price, he is generally charged with the amount. If the bail or security, is a man generally reputed good for so much, it is sufficient, it is not necessary that he should be a freeholder. Konigmacher v. Kimmel, 'J07. 6. A wife executrix, whether so constituted before or after her mar- riage, may be sued with the other executors : or if sole executrix, with her husband ; and in either case, after judgment against her as execu- trix, may have a devastavit fixed on her and her estate, and her personal or real estate sold for it. Gratz v. Philips, 333. 7. Executors who were authorized to sell the real estate of their testa- tor, for the payment of certain legacies, sold the same, and afterwards settled their account in the Orphans' Court, by which it appeared there were assets to pay the legacies : the legatees afterwards tiled refunding bonds, and brought suits against them as executors, and obtained judg- ments. Held, that .-such judgments are not liens on the real estate of the executor. McCMough v. Sample's Kx'm, 4l!2. EXTINGUISHMENT AND SATISFACTION. DKHTOR AND CREDITOR, 1. 1. A. & Co. and B. & Co. contracted ,/oiHf/y to purchase from C. a quan- tity of wheat, for which they were to give the notes of certain banks, which were specified. A part of the wheat was delivered to A. it Co. and a part to B. & Co., without the knowledge of C., for which their respective re- ceipts were taken. Afterwards A. & Co. gave drafts on E. at forty-five days, for the grain received by them, which the receipt stated would bo considered as so much money, when paid. B. it Co. also gave their draft at forty-five days on F. for the wheat they had received, in the acknow- ledgment of which it was set out, " that when paid it would be in full." On receiving those drafts, C. gave up the receipts which A. it Co. and B. & Co. had given for the grain. Ihld, that by the acceptance of these drafts, the j"int contract of the partner firms, was not merged in their separate responsibility. Tyson v. r<>llck, 37.x '2. The bare seizing land in execution to the value of the debt, is not a satisfaction. Gro v. The Ihintiiii/dn ttunk, 42">. 3. A. C. sells, by articles of agreement to J. M a tract of land, for which he is to execute a conveyance upon the payment of the purcha.e- money, for which lie takes a judgment-bond from J. M. Subsequently, B. C. enters the judgment-bond, issues a fi. fa., levies upon the Innd, Which is afterwards sold by the sheriff, and B. C. becomes the purchaser for a sum less than one-half of the judgment, llchi, that such sale and purchase is an equitable extinguishment of the whole amount of the judgment. Char's Exr v. Mathers' Adm'r. 4. II. S. conveyed a house and lot to D. L., in consideration whereof. D. L. executed eight single bills, of fifty dollars each, to B. T.. and ei^ht to J. K., in which B. T. was his security. I*. L. and B. T. entered into 524 INDEX. EXTINGUISHMENT AND SATISFACTION. an agreement, by which the deed from II. S. was to remain in the hands of B. T. as a security for the payment of the eight notes due to him, and the eight notes due to J. K. in which B. T. was security. B. T. aftert wards, and before the payment of the said notes, died, having first made a will, by which he devised to the wife of D. L. the aforesaid house and lot. Held, that such devise released D. L. from the payment of the eight single bills to B. T., but did not release him from the payment of the eight single bills to J. K., in which B. T. was security. Lemon v. Thompson's Adm'r, 482. FRAUD. CORPORATION, 2. 1. A deed procured by actual fraud, is void, and cannot be confirmed by subsequent acts or declarations of the grantor. Chess v. Chess, 32. 2. A mortgage of personal property, without a delivery of possession, or the other indicia of ownership, is fraudulent as to creditors, and upon the death of the mortgagor, the mortgagee is not entitled to a preference over the other creditors, to have his debt paid first out of the proceeds of the mortgaged property. Welsh v. Heydeii's Ex'r, 57. FRAUDS AND PERJURIES. BARGAIN AND SALE, 1. 1. A parol gift of a lot of ground by a father to his married daughter, accompanied by possession and valuable improvements made by the hus- band at his own expense, vests in him no estate in addition to the free- hold which the law allows him in right of his wife. Inyham v. Mason, 389. 2. All agreements for the sale and purchase of land, are consummated and extinguished by the deed. McKennan v. Doughman, 417. 3. If, therefore, the grantor makes a deed to the grantee, which con- tains a general warranty of title, he cannot afterwards show by parol, that an agreement was made a few days before, that the grantee was to patent the land. Id. FOREIGN LAWS AND JUDGMENTS. ATTACHMENT, FOREIGN. Municipal law is a matter of compact, and as such the construction of foreign statutes, as in the case of any other written compact, belongs to the court; and there is no distinction in this respect between the written and unwritten law. Sidwell v. Evans, 383. FORGERY. EVIDENCE, 7, 9. GRAIN IN THE GROUND. VENDOR AND VENDEE, 2. GUARDIAN AND WARD. ORPHANS' COURT, 1. 1. B. K., in 1815, was appointed guardian of J. ; shortly after, J. W., brother-in-law of J., and administrator of the estate of his father, settled his administration-account, by which a balance was found in his hands. In 1816, B. K. received part of that balance in cash, and for the residue coming to his ward, took J. W.'s bond without security. At that time, J. W. was in good circumstances ; he kept a store, and up to the year 1820, continued to have a large amount of real and personal property in his possession ; then he sold a tract of lane} which he had bought at a very high price, at a loss of about 12,000, and shortly after made an assignment for the benefit of bin creditors, by which it appeared that he was largely indebted. The assignees paid fifty-five per cent of his debts. Up to the spring of 1820, many of his neighbors, and among them tho mother and another brother-in-law of J., loaned him different sums of INDEX. 525 GUARDIAN AND WARD. money. Held, that B. K., tho guardian, was not chargeable with the loss upon the bond he had taken of J. W. Konitjmacker v. A't /;/, 207. 2. More ought not to be expected from guardians than common pru- dential care ; they should not be made liable, unless under unfavorable circumstances, their acts expose them to the animadversion of the law, for Hiipine negligence, showing carelessness of duty, and of the ward's interest) or where the loss is occasioned by their own act in giving credit without taking security. Id. 3. So if a guardian has in his hands money of his ward, and puts it out, he will generally be liable, unless he take .surety in the note, dec., not HO if he take a mortgage on land, and an old title, unknown at tho time, should sweep away the property mortgaged. Id. 4. But where the fund never actually came to the hands of the guar- dian, there is a difference ; he is not bound instantly to sue in all direc- tions if. to all appearance, the money is safe. LI. 5. Previously to the settlement of an account in the Orphans' Court, an action of assumpsit will not lie by the ward against his guardian to compel such settlement and payment of the balance. Bowman \. Ilerr'a Kx'rs, 282. n. A settlement made by the guardian once in every three years, in pursuance of the 3d section of the Act of the 31st of March 1821, is not conclusive upon the ward, but may be impeached upon the final settle- ment of the account when the ward arrives at full age. Id. 1. Upon the death of a guardian before the settlement of his account, his representatives may be cited and compelled to settle it. Id. HABEAS CORPUS. ERROR, 7. HIGHWAY. ROADS AND BRIDGES. HUSBAND AND WIFE. EXECUTORS AND ADMINISTRATORS, 0. EXTINGUISHMENT AND SATISFAC- TION, 4. FRAUDS AND PERJURIES, 1. INTESTATE AND DECEDENT, 5. LIMITATIONS, 4. PARENT AND CHII-D, 2 1. Wherever a husband and wife can sue or be sued by adversary process, an amicable action can be entered, and she and her rights are as much bound as if the proceeding had been adversary. Gratz \. Phil- ips, 333. 2. An assignment by a husband, under tho insolvent laws, of his wife's choses in action, defeats her right of survivorship, in case he dies before they arc reduced into possession. Kichirine v. Jliim, o~3. 3. For civil purposes, reputation and cohabitation are sufficient evi- dence of marriage. Senser v. Jiowcr, 450. INCUMBRANCE. VENDOR AND VENDEE. INFANT. PARENT AND CHILD. INQUISITION. EXECUTION. INSOLVENT. HUSIIAND AND WIFE, 2. LIMITATIONS, S. ORPHANS' COURT. 3. 1. The trustee of an insolvent debtor cannot sustain an action in right of the insolvent without having first given bond, liinncl v. Stocrer, 2<>2. 2. A bond executed with security and tiled upon tho trial of the cause is not sufficient. /(/. 3. In the case of an application for the benefit of the insolvent laws. 526 INDEX. INSOLVENCY. the decree of the court, " Proceedings quashed by order of the court," is conclusive evidence that the applicant did not comply with the terms of his bond ; and the cause of such order cannot be inquired into collat- terally. Heilner v. Bast, '2f>l. 4. It is the duty of the applicant to surrender himself to prison if he fails to comply with all things required by law to entitle him to be dis- charged. Id. 5. Qucere. Whether the court has power to recommit the applicant, except he has been guilty of fraud. Id. 6. Alter an insolvent bond is forfeited, the issuing of an als. ca. sa. by the same plaintiff, upon which the insolvent gave another bond, and was subsequently discharged by law, is not a waiver of his right of ac- tion upon the first bond. Id. 7. The Statute of Limitations docs not run against debts due by an in- solvent debtor. Lapse of time, much greater than that allowed by the statute, may raise a presumption of the payment of such debts ; but when the debtor returns no fund but a debt to become due on a future contingency, no presumption of payment would arise before the fund came to hand. Feathcrs's Appeal, 'A'l'l. 8. The trustee of an insolvent debtor, having in his own name sued a mortgage given to the insolvent, obtained a judgment and issued a levari facias thereupon ; by virtue uf which the sheriff sold the mortgaged premises and received the purchase-money : Held, that in a suit brought against the sheriff' to recover the money from him, he cannot set up as a defence that the trustee had never given bond as required by the Act of Assembly. Dean v. Patton, 437. INTESTATE AND DECEDENT. E.XECUTOTS AND ADMINISTRATORS, 1-5. PLEADING, 7-9. PRINCIPAL AND SURETY, 1. SHERIFF'S SALE, 3. 1. A., leaving several children, devised to his son B. a tract of land, he paying !?")0 an acre therefor ; to his son C. a tract of land, he paying SOU per acre therefor ; the amount of money so payable to be equally distributed among all his children. B. took under his father's will, made several payments according to its direction, and died, leaving chil- dren ; his administrators having obtained from the Orphans' Court an order to sell his real estate for the payment of debts, sold the same sub- ject to the payment of the balance of the money due under his father's will: lltld, that the administrators sold and the purchaser took nothing but the land, and was nut entitled to the interest which B. had in the land of his brother C. under his father's will. Hnje v. Ileye, 83. '1. A purchaser of land, sold by an administrator, by an order of the Orphans' Court, takes the land discharged of the lien of a legacy. Mc- Lana/ian'.i Ex'rs \. MrLaiKifi'in's Adin'r, %. '.). In Pennsylvania, where lands are assets for the payment of debts, it is most just to afford the terre-tenant, who is the party to tie affected, an opportunity to contest the debt, arid the plaintiff may do so. Hiiiics v. Jafolin, lf>2. 4. J. M. obtained patents for his real estate, and executed to the Com- monwealth mortgages for the purchase-money, and died. Administra- tion upon his estate issued to his son. The real estate, was divided, appraised, and taken by the son, and the other children, in purparts of unequal quantity and value. It was appraised at its full value without any deduction on account of the purchase-money. The administrator paid the purchase-money out of the personal estate : field, that the payment was a good one, and the administrator entitled to a credit for It. King v. Morrison's Adrn'r, 188. 5. Where under proceedings in partition in the Orphans' Court to di- vide the lands of S. the same was appraised and taken by M., who had INDEX. 527 INTESTATE AND DECEDENT. married one of the children of S., and who acknowledged recognisances to the other children for their shares: the wife of M. can claim nothing against her husband or a purchaser of his estate, but the undivided tdiare which descended to her, and which remains specifically in land after all the purposes of distribution have been answered. Johnson v. Mutton, 371. 6. An administration account stated and filed in the register's office, is not a compliance with a recognisance conditioned for the settlement of an account, and upon suit upon that recognisance by one of the heirs of the estate which the administrator represented, he is entitled to re- cover nominal damages, although the jury may believe that his interest in the estate had been paid to him. Commonwealth v. Henderson, 401. 7. A mortgage unrecorded in the lifetime of the mortgagor, has no preference over other specialty debts, out of the proceeds of the sale by the sheriff of the mortgaged premises, after the decease of the mortga- gor. Adams' Appeal, 447. JOINT PURCHASERS. PARTNERSHIP, 4. Joint purchasers, without an agreement of partnership, would not be entitled to the remedies, nor subject to the responsibilities of partners. Campbell's Exr's v. Colhuun's Adm'rs, 140. JOINT OR SEVERAL LIABILITY. EXTINGUISHMENT AND SATISFACTION, 1. JUDGMENTS. EXTINGUISHMENT AND SATISFACTION, 3. PLEADING. 2. PRACTICE, 1, 7. SHERIFF'S SALE, 1, 2, ( J. TERRE TENANTS, 1. TRUSTS, 5, 6, 7. WILLS, 2. 1. The revival of a judgment by an amicable scire facia* post annum et diem, creates a lien upon the real property of the defendant, acquired after the entry of the original judgment. Clippinger v. Mi/ltr, 64. 2. A seire facias continues the lien of a judgment upon land, although the occupiers, who are lessees from year to year of the defendant, have not had the writ served upon them. Id. 'A. M. obtained judgment, in November 1808, upon which he issued a sci. fa. to August term 1810, to which the plea of payment was put in, and issue joined thereon. His counsel was appointed president judge, and in 181(5 a list of causes in which he had been concerned, and among them this, was certified for a special court. On this list the words " set- tled, says Mr. Duncan," were written in the handwriting of the judge, in the entry of this cause ; and again, on another list, certified in 1M7, the word " settled." Mr. D. was counsel for the defendant, and these entries were never transferred from the trial-lists, but in \ *'!'' they were on motion ordered to be stricken out, and in 1S25 a verdict and judgment rendered for the plaintiff: Held, that the lien of the judgment remained, and was not postponed to a judgment obtained airainst the defendant after these entries had been made, and before they had been stricken out. Moore's Adinrs v. Kline, I-'.'. 4. A bond, with a warrant of attorney to confess judgment, authorizes the entry of but one judgment : the entry of a second, upon the snmo warrant, is wholly irregular. l'/ri<-h v. \nneida, 24.">. "). The issuing of a fieri facias within a year and a day. and a levy upon personal property, subject to former levies, or on personal property as per inventory annexed, or a return of nulla bona, does not keep alive the lien of a judgment beyond live years, from the return-day of the term to which it is entered, lit/z's Af>f>enl, 271. (>. Upon a transcript of the judgment of a justice the peace, entered as a lien upon land, the five years within which a scire facias shall issue, 528 INDEX. JUDGMENTS. to preserve the lien, must be computed from the first day of the term to which it is entered, and not from the actual date of the entry. Bttz'a Appeal, 271. 7. Executors who were authorized to sell the real estate of their tes- tator, for the payment of certain legacies, sold the same, and afterwards settled their account in the Orphans' Court, by which it appeared there were assets to pay the legacies ; the legatees afterwards filed refunding bonds, and brought suits against them as executors, and obtained judg- ments : Held, that such judgments are not liens on the real estate of the executor. McCulloch v. Sample s /,'xYs, 422. 8. A judgment entered upon a bond, in the penalty of 100, with a warrant to confess a judgment, having a condition thereunder written, that the obligor will pay a fine and bill of costs, then uncertain as to amount, is valid. Holden v. Jiull, 400. 9. The order of the Court of Common Pleas, opening a judgment and letting the defendant into a defence, does not destroy the lien from the original date of its entry. Stdnbridges Appeal, 481. 10. The land of D. II. having been levied, and advertised for sale by the sheriff on a venditioni exponas, before the day of sale, D. II., by a verbal agreement, transferred the surplus of what the land might sell for, beyond the payment of encumbrances, to L. S., to indemnify him against certain liabilities. Two days after the sale, before the deed was acknowledged, and before all the purchase-money was paid, A. D. II. entered a judgment against D. II. and issued a fi. fa. with directions to the sheriff to retain the surplus: Held, that the judgment entered after the day of sale was not a lien on the land ; and the fi. fa. could not take the money, because the agreement between D. II. and L. S. was a legal transfer of it before it issued. Hahn v. Smith, 484. JUROR. JURY. JURY. ERROR. 18. EVIDENCE. 19. PRACTICE, 4. The court sustained the challenge of a juror on the ground that he was subpoenaed as a witness to impeach the credit of another important witness, who was to give evidence in the cause in which he was called as a juror. Chess v. Chess, 32. JUSTICE OF THE PEACE AND ALDERMAN. COSTS. 1,6. JUDGMENTS,*}. OFFICE AND OFFICER, 1. RECOGNISANCE.!. 1. A justice of the peace, being a judicial officer, must have his court or place of administering justice: and in order to the validity of an amicable judgment upon his docket, the party confessing the same must be l>efore him, and at his office. Kiner for which such patent had issued to him; although his name did not appear in the controller's list, or on the general draft. Id. 16. Hut such presumption would not prevail where his name did appear in another number and a patent had issued to him for that number, and where the number for which his patent issued, without having his name in it, was subsequently drawn from the wheel in the name of another. Id. 1 p. & W.34 530 INDEX. LANDLORD AND TENANT. WAY-GOING CROP, 1, '2. 1. A purchaser at sheriff's sale before the deed is acknowledged, has not such u title to the land struck down to him, as will authorize him to give a lease of the premises ; and if he does give such a lease to the defendant as whose property it was sold, it will not create the relation of landlord and tenant between them, so as to estop the lessee from dis- puting the title of the lessor. Hall v. Jiennei; 402. '2. The general rule of law, that a tenant shall not dispute the title of his landlord, is restricted to cases in which the lease has been fairly obtained, without any misrepresentation, management or fraud. Id. LEGACY. EXECUTORS AND ADMINISTRATORS. 1. To recover a legacy charged upon land, the most approved form, is to bring the suit against the executors and the terre-tenants of the land generally by name. McLanahan v. McLanahan, Adm'r, 96. '2. If the terre-tenants have not all been summoned, the plaintiff may pray a writ to summon the person alleged to be terre-tenant ; and by this means he may be made a party in the same manner as if he had been summoned or returned by the sheriff, as terre-tenant of the land. Id. 3. When a testator, by his will, blends his real and personal estate, he thereby charges his land with the payment of legacies. Id. 4. Parol evidence of the declarations of a testator at the time the will was written, may be received in evidence, to support the presumption that the legacy was redeemed by the testator in his lifetime. Bailey v. Snyder's Ex'rs, 126. LIBER A RI FACIAS. EXECUTION. LIENS. JUDGMENT. RECOGNISANCE. WILL, 2. Lien creditors are to look to the application of the fund on which they have a lien, at their peril : everything which a due attention to their interest would have entitled them to receive being considered as paid by operation of law, as regards the debtor. Filings Adm'r v. The Cum- jfiomceallh, 240. LIMITATIONS. 1. Every owner is in possession until some person actually enters on him under an adverse claim, and the Statute of Limitations begins to run from the time actual adverse possession is taken only. Carlisle v. Stiller, 6. 2. The disability of marriage cannot be added to the prior disability of infancy, to avoid the operation of the statute. Id. 3. W. L. owned a tract of land containing two hundred and eighty- seven acres, under an application and survey, of which he never had actual possession, and died in 17*4, leaving issue Elizabeth in her minor- ity, who at the age of twenty married J. C., in April 17*7. At the time of the death of W. L., all but eighty acres of the said tract was held adversely by C. S. under a younger title, by improvement, warrant and survey, who in 17'.>3 bought, under another title, the said eighty acres, and took possession, which was held by those claiming under him. J. C. intermarried with E., died in 1815. and, to February term 1818, the said E. C. brought ejectment: Held, that as to HO much of the tract of which said C. S. had adverse possession at the death of W. L., the said E., his daughter, was barred by the Statute of Limitations, but that as to the eighty acres of which the said C. S. took adverse possession in 17'.'-j, she was not barred. Id. 4. When the right to the eighty acres descended to E. C. in law, she acquired the possession, and the true construction of the act of liiuita- INDEX. 531 LIMITATIONS. tions gives a feme covert the same time when adverse possession is taken of her lands while Hhe is covert, as it would have giv<-n her if there had been adverse possession and the lands had descended to her when she was covert. Carlisle v. Miller, 6. 5. The acknowledgment of a debt, barred by the Statute of Limita- tions, by a partner after the dissolution of the partnership, does not operate to revive the debt, and avoid the Statute of Limitations as to the other partners. Keariyht v. Craii/head, \'.'>1 . 0. If one joint purchaser pay the accruing interest on the purchase- money, from time to time, a right of action for a moiety of each payment would arise instantly to the other joint purchaser, which would be barred by the lapse of six years from the payment before suit brought. Camp- bell's Kx'r \. Colhoans Adm'r, 14U. 7. The redemption of a pawn is not affected by the Statute of Limita- tions, which runs only from the conversion of the thing pawned. But a simple contract debt is not protected from the statute, because accom- panied with a pledge as a collateral security, floyd's Adm'r v. Wilson, 216. 8. By the express provision of the Insolvent Law, the Statute of Lim- itations does not run against debts due by an insolvent debtor. Peat tiers' s Appeal, 322. ( J. In an action for money had and received, brought to April t v rrn 1, to recover the amount paid on an article of agreement for the sale of land, which was entered into between the parties, in the year IMMI, where nothing had been done by the defendant until lvJ4, which would entitle the plaintiff to rescind the contract, the Statute of Limitations is insufficient to bar the action. Leinhart v. forringer, 4'J2. MALICIOUS PROSECUTION*. 1. In an action for maliciously siting out a capias ad respondendum, and holding the defendant to bail, is not to be favored ; and clear proof of want of probable cause is necessary to support it. Zearimjs Ex'rs v. Jieas/tore, '2'.\'2. 2. As a general rule, it may be laid down that such an action cannot be supported, when, in the original action, the defendant was obliged to set up some collateral matter by way of defence, which did not appear on the declaration or the face of the instrument declared on. Id. MORTGAGE. AGENT AND FACTOR, 1. ASSIGNEE, 1, 2. FRAUD, 2. INTESTATE AND DECEDENT, 7. SHERIFF'S SALE, 1, I). MUNICIPAL LAW. FOREIGN LAWS AND JUDGMENTS, 1. NEW TRIAL. PRACTICE, 5. OATH. ERROR, 10. SHERIFF'S SALE, 10. The prothonotary of the Court of Common Pleas has no power to ad- minister the oath required to obtain a writ of error. J'uinrcy v. Lftcis, 14. OFFICE AND OFFICER, DE FACTO AND DE .Il'KE. EVIDENCE, f>. PROTHONOTARIKS AND CLERKS or COTRTS. 2. Wherever a person has color of authority, and acts under a commission from the appointing power, but which, it may be alleged, has been for- feited by some act, perhaps of an oi|uivival nature, in all such cases the validity of the commission cannot be examined in a suit in which he is not a party. If a person usurps an authority to which ho has no title or color of title, his acts would be simply void. Hut a colorable title to an 532 INDEX. OFFICE AND OFFICER, DE FACTO AND DE JURE. office can be examined only in a mode in which the officer is a party, and before the proper tribunal, the Supreme Court, in whom by Act of As- sembly all the authority of the Kind's Bench is vested. It is not, there- fore, competent, when a deposition is offered in evidence, and the com- mission of the justice of the peace, before whom it was taken, is shown, to prove that, after he was commissioned, he removed out of his proper county, where the deposition was taken, and thereby vacated his office. McJiim v. Somers, 297. OFFICIAL BOND. EVIDENCE, 5. PRESCRIPTION* AND PRESUMPTION, 2. SHERIFF, 1. ORPHANS' COURT. INTESTATE AND DECEDENT, 5. GUARDIAN AND WARD. 1. The Orphans' Court has full power and authority to settle the ac- count of a guardian, and if a balance is found to be in his hands when the ward arrives at full age. to compel the payment of it, by attach- ment or sequestration of the goods or lands of the accountant. Jioicman v. Herr's Ex'rs, 282. 2. Upon the death of a guardian before the settlement of his account, his representatives may be cited and compelled to settle it ; and the Or- phans' Court may exercise the same power to compel them to pay over the balance as they would against the guardian himself. Id. 3. A fund belonging to J. 0. was brought into the Orphans' Court for distribution. J. O. had taken the benefit of the insolvent laws in 1800 ;' the assignees then appointed had not qualified, and were dead : Held, that the Orphans' Court should retain this fund until the next term of the court at which he was discharged, to have assignees appointed to receive it, but if none were then appointed, it should be paid to J. 0. Feathers' s Appeal, 322. 4. When an appeal is taken from a decree of the Orphans' Court, it would be wrong in that court to order the money to be paid over under that decree, while the recognisance is writing, or the party bringing in his bail. Id. PARENT AND CHILD. 1. In all cases of conflicting presumptions on the subject of legitimacy, that in favor of innocence shall prevail. Xeii.ier v. Baicer, 4">0. 2. The alienation of an improvement right by the widow, after the death of her husband, leaving an infant two yetirs of age, will not bar the right of such infant to recover the land when it arrives at full age, even if the consideration received by the widow should have been applied to the support and maintenance of the child. Id. '.'>. (Jita-re, Whether there can be an abandonment of a right by an infant. Id. PAROL AGREEMENT. FRAUDS AND PERJURIES. 1-3. PARTITION. COSTS, 4. PARTNERSHIP. EXTINGUISIIJIENT AND SATISFACTION, 1. JoiNT PURCHASER, 1. LIM- ITATIONS, 5. PLEADING, 11-13. 1. Campbell in 1SU5 bought of W. 5000 acres of land at $4 per acre The purchase was at a credit of eight years, with interest at three per cent., after which the principal was to be paid at three, six and nine years, reserving six per cent, on unpaid balances. By settlement made in lxl'. Campbell had paid the interest to W. up to that time, and $4429.42 on account of principal. The liability of Colhoun to contribute INDEX. 503 PARTNERSHIP. for the payments of Campbell, whether more or les than hi* propor- tional part, would depend on whether the parties hail agreed to appor- tion the profit or loss, which was a fact for the jury. CnmpltrU'n Ax'. .1 v. Colhouii's Adm'rs, 140. 2. There may be a partnership to trade in land, and it may, as in any other case, be limited to purchasing only, the profit and loss bciriL' di- visible as stock ; but this relation does not necessarily or naturally ari-e from the bare circumstance of a joint purchase. Id. 3. If Campbell, as a joint purchaser, paid all the interest as it Ix-eame due, a right of action for a moiety of each payment accrued instantly to him against Colhoun, which would he barred by the Statute of Limita- tion when six years had run before suit brought. I<1. 4. In a case of partnership the joint effects belong to the firm and not to the partners, each of whom is entitled only to a share of what may remain after the payment of the partnership debts, and no irreater in- terest can he derived from a voluntary assignment of his share or a sale of it on execution. Doner v. Xlanjf'er, 1'J.S. 5. A preference exists in favor of the joint creditors of a firm, founded on no merits of their own, but on the equity which springs from the na- ture of the contract between the partners themselves. /,/. (>. With the single exception of a joint commission, whenever the part- ners are not individually involved, the joint creditors have no preference. Id. 7. A separate execution creditor sells not the chattels of the partner- ship, but the interest of the partner, encumbered with the joint debts ; and the joint creditors have therefore no claim to the proceeds. /'/. 8. Where the separate creditors of each partner proceed by execution, the sale of the partnership effects, under the execution of the separate creditor of one partner* passes the interest of that partner subject to the equity of his co-partner, and the execution-creditor is entitled to the price. This equity, together with the remaining interest of the other partner, passes by a sale under execution of his separate creditor, where the purchaser of the effects is the same ; and this whether the sales be made consecutively, or at the same time. Id. V>. Qna-re. What would be the effect where there are separate pur- chasers of the shares of the respective partners. /-/. 10. One partner cannot bind his co-partner by deed, although it be given in a transaction in the course of the business of the firm, and the benefit of the contract be received by the firm. Hurt \. Wtthfrs. '2>~>. 11. Kach partner is separately the agent of the ivst. with autlmrity to pay the whole or any part of the debts, and payment by him is pav ment on joint account. Tyson v. l'ullf>ck, )7- r >. PATENT. LAND AND LAND OFFICE, 11-13, 15. PAYMENT. PRESCRIPTION AND PiiKsrsirTioN, 1, '2. PAWN. The redemption of a pawn is not affected by the Statute of Limita- tions, which runs only from the conversion of the thiin; pawned. Hut a simple contract debt is not protected fiom the statute, because accom- panied with a pledge as a collateral security. //"/y trustees appointed for the purpose and the money in their hands, it was held that a suit would not lie against them in the names of the children of 15. to recover their share, but must be brought in the name of B.'s administrators, there being debts of B.'s estate yet unpaid. //t;/c v. Jle>/e. S3. 2. Where suit is brought against the personal representatives of a de- ceased debtor, with notice to the tenants in possession of the land upon which the debt is alleged to l>e a lien, and the tenants appear and make defence, they are concluded by the verdict and judgment ; although they may not in fad have put in issue the question of lien ; and in an eject- ment brought by a sheriff's vendee under that judgment against such terre-tenants. they will not be permitted to controvert the lien pf such debt. II tines v. Jacobs, 152. 3. It is a rule of pleading that whatever is not contested at the proper time, is conceded. Id. 4. Kven where the terre-tenants have been called upon prematurely, still, if they avail themselves of the occasion, and have a fair opportu- nity to make a full defence, they are concluded. Id. 5. In Pennsylvania, where lands are assets for the payment of debts : it is most just to afford the terre-tenant, who is the party to be affected, an opportunity to contest the debt, and the plaintiff may do so. Id. 15. If an executor, upon the settlement of an account of his testator, allows a credit for a check this is not such an administration of this part of the assets as will preclude an administrator lie bonis nn, from sus- taining an action to recover the amount of the check, which he proved to be a forgery. Hank f Pennsylvania v. Jacobs'* Adin'rs. 101. 7. A promise laid in one count, as having been made to the testator in his lifetime: and in another as having been made to his administrators after his death, is not such a misjoinder of counts as will be fatal to a general verdict and judgment. /a*hnri>, 232. 10. Where an award had been made against the defendants, and by agreement they were let into a defence on tlie merits, without being in am/ dcijrte prejudiced by the award, in their defence, they are not pre- cluded by the agreement from putting in the plea of iton estjartum, and availing themselves of the fact that the instrument declared on was exe- cuted but by one of a iirm only. Hart v. Withers. 2S">. 11. But if such agreement had that effect, it would be waived by tak- ing issue on the plea of non e.ft factiiw, instead of moving to have it struck out. /'/. 12. When suit is brought against several partners upon a sealed instru m^nt, executed by one for all. the plaintiff cannot recover against the partner who actually executed the instrument alone. Id. 13. A plaintiff who states his case more particularly than is necessary, is not bound to the strict proof of circumstances, merely because they have been unnecessarily set out. Sidwtll v. Evans, 383. 14. A special plea that a domestic attachment, grounded upon the INDEX. .035 PLEADING. same cause of action, had issued in another county, and is yet pending, is a pica in abatement, and cannot be put in after i.ssue joined upon a pica in bar. Eitylv v. Kelson, 44 1 ". The rule is different us regards a popular action ; there the pen- dency of a prior action extinguishes the title of every one else, and necessarily bars the right. Id. Iti. A trial upon the plea of payment, is not a waiver by the defendant of. a joinder in demurrer to another pica put in by him : thus when there is a joinder in demurrer, and the defendant is legally entitled to a judg- ment thereon in his favor, but the cause being tried, upon the plea of payment, and a verdict rendered for the plaintiff, it is error for the court to enter a judgment upon that verdict. \Villard v. Morris, 4.SU. POSSESSION'. EJECTMENT, '1. LIMITATIONS, 1. PRACTICE. *B.\iL, 1, '2. CIRCUIT COURT. 1, 2, '.}, 4, ."), o. EQUITV, 1. ERROR. 1. -, 3, 4, 5, 1U. EVIDENCE, '2\, '2~>, '2 ( .l, 30. INSOLVENT, '2. JUDGMENT, *, '.'. LEGACV, '2. OKI-HANS' COURT, 4. PLEADING. 11, 14. 17. PRINTITAL AND SCKETV, '2. KoADS AND BRIDGES. 1. SHERIFF* S SALE. .*}. 1<). I. When adjudgment is irregularly entered against a defendant, by default of appearance, who being informed of it, neglects or refuses for two terms, and until after a writ of inquiry of damages is executed, to make an application to have the judgment set aside, it will not be reversed on a writ of error. CV'/.v//// v. Afuysey, '2'2'J. '2. The time and manner of filing narr., of appearing, pleading and signing judgment for want of plea, &c., are matters of practice regulated by rules of court: and anv one complaining of irregularity therein, must apply for redress as soon as he kno'.vs of the injury. /. Generally, if a party goes to trial bv con-ent in a lower court, at an earlier term than IK; was compellable to do, if he make no objection then, his objection will not avail him afterwards, /ivi/, //>'.* .-l/iy/n//, '.','2'2 4. Whether a particular cause of action be proper for can- not afterwards have judgment by default of the pavment of such co-ts. Id. 7. If an execution issue upon a judgment for a penalty upon a condi- tion to pay H fine and bill of costs before the real amount due is ascer- tained, it will be set aside on a writ of error. //'/. 8. When an Act of Assembly requires reasonable notice to te given. by one party to the other, ten days generally would be sufficient, ('"in- infinirealfh v. Fisher. 4t> PRESCRIPTION' AM) PHESI'MPTIOX. LANDS AND LAND OFFICE. '.', 1">, lo. PARENT AM> Cim.n. 1. 1. The Statute of Limitations does not run against debts due ny an insolvent debtor. Lapse of time, much greater than that allowed bv tin- statute, may raise the presumption of the pavment of such debt* : Kiit when the debtor returns no fund hut a debt to become due on a future 536 INDEX. PRESCRIPTION AND PRESUMPTION. contingency, no presumption of payment would arise before the fund came to hand. Frathci-s's Appeal, 322. 2. A presumption of satisfaction from lapse of trine, arises in the case of an administration bond ; and the computation runs from the period when the money was demandablc. Dicmer v. Sechrisl, 419. PRINCIPAL AND SURETY. 1 . The defendant in a judgment on a recognisance for the price of land, taken at a valuation in the Orphans' Court, gives security for the stay of execution allowed by the Act of Assembly, after which the land is sold by the sheriff, and the money brought into court. The plaintiff, and other persons entitled, agree that the debts of a deceased brother, who died in the lifetime of the father, should be paid out of his estate as liens, although in point of fact they were not liens, and the proceeds of sale are thus exhausted, and not applied to pay the judgment, which was a lien. Hdd, that the liability 01 the surety on the recognisance was discharged, and the agreement of the defendant in the judgment to the misapplication of the fund will not, as respects the surety, alter the case. Finney v. The Commonwealth^ 240. 2. A judgment was obtained against a principal who gave absolute bail to obtain a stay of execution, after which the absolute bail were sued and judgment obtained against them. Held, that one of two sureties in the original obligation, who paid one-half the debt, is entitled to an assignment of the judgments against the principal and the absolute bail, to enable him to indemnify himself for the amount thus paid. Burns v. The Huntingdon Bank, 3 f J5. PRIORITY. JUDGMENTS, 3, 10. PRIVITY OF ESTATE AND TITLE. EQUITY, 2. PROMISSORY NOTES. BILLS OF EXCHANGE AND PROMISSORY NOTES. PROTIIONOTARIES AND CLERKS OF COURTS. CIRCUIT COURT, 2. ERROR, 1. 1. The account of a prothonotary being settled by the accountant offi- cers of the state, to which he files his objections in writing, and takes an appeal to the Common Pleas, upon the trial of the cause he cannot give evidence to support other objections than those made at the time of ap- peal. 1'orter v. The Commonwealth^ 252. 2. Upon the settlement of such account of a prothonotary out of office, the accountant officer is not confined to the settlement of items embraced, as to date, within the fiscal year. Id. PURCHASER. SHERIFF'S SALE. QUARTER SESSIONS. When the approval of a Court of Quarter Sessions is required by an Act of Assembly to an assessment of damages, that court will not readily set aside a report, on the ground that the damages are excessive, yet it may become their duty so to do. It would be a much stronger case which would authorize the Supreme Court to set aside a report on that ground. Commonwealth v. Fisher, 402. RATIFICATION. SURVEYOR, 1. RECOGNISANCE. PRINCIPAL AND SURETY, 1. INDEX. 537 RECOGNISANCE. 1. Upon an appeal from a judgment of a justice of the peace by the plain tilF, the hail entered into a recognisance, which was taken by the justice in these words, " J. W. bound in a sum to cover all costs," which was held to he void, and upon which there could be no recovery on a scire facias against the bail. Williamson v. Mitchell, 9. 2. In an action commenced by capias, a short minute of a recognisance of special hail, taken by the clerk of a prothonotary, in this form, " R. M. held in *20() cvyn. coram E. L. for J. II. Proth'y." Held, to be sufficient. Moore v. Mctiride'x Adm'r, 148. 3. An administration account, stated and filed in the register's office, is not a compliance with a recognisance, conditioned for the settlement of an account; and upon a suit brought upon that recognisance by one of the heirs of the estate which the administrator represented, he is entitled to recover nominal damages, although the jury may believe that his interest in the estate had been tiaid to him. Commonwealth v. Hen- derson, 401. RECORD. A trial-list certified under an Act of Assembly for holding a special court, forms no part of the record; it is the private paper of the judge, which he has a right to do with as he pleases, and the entries made upon it hy him are intended for his own information. Moore's Adm'r v. Kline., 12 ( J. REGISTER'S COURT. EVIDENCE, 16. RELEASE. CANALS, 4. EXTINGUISHMENT AND SATISFACTION, 1, 4. RETRAXIT. ERROR, 9. RIVERS. ROADS AND BRIDGES. ROADS AND BRIDGES. CANALS. 1. A practice in the Court of Quarter Sessions of appointing tirclcc freeholders as reviewers of a road, from which the parties in interest shall strike six, the remaining six being the reviewers, is contrary to the express provision of the law, and erroneous. But when the petitioners for the review pray for the appointment of twelve and then refuse to strike, because some of the persons appointed are exceptionable, it is not error in the Court of Quarter Sessions to refuse to appoint others in the place of those four, and confirm the view. Jonestown l\. 2. The right of the state to take and use for public purposes, six out of every hundred acres of land sold, is not an implied ri^ht but an express reservation ; the state infringes upon no private interest, nor does it injure any man by using this right : the utmost that can bo required is, that it should pay for improvements put by the owner on such part as the state should subsequently use. Commonwealth v. Fisher, 4(i2. .'>. All below high water-mark, in the channel of the Susquehanna river, is a public highway, and the state has a right to improve it by deepening it, or it may raise dams in it, and thus swell the water : and if in so doing, a spring which rises below high water-mark is covered, and which an individual has been accustomed to use, he cannot recover damages therefor, under the Act of l .'th April, 1S27; it is dmnnnin atiKqtte injuria. Id. SALE BY ORDKK OF ORPHANS' COURT. INTESTATE AND DECEDENT, 1. 538 INDEX. SATISFACTION. EXTINGUISHMENT AND SATISFACTION. SOIRE FACIAS. JUDGMENT, 1, 2, G. RECOGNISANCE, 1. TERRE-TENANTS, 1. SERVANTS AND SLAVES. "Yeoman" is a sufficient designation of the occupation of the owner of a slave, under the Act of 1780. Cohean v. Thompson, 93. SHERIFF. EVIDENCE, 33. INSOLVENT, 8. 1. The neglect or refusal of a sheriff to commit a person convicted of fornication until the sentence should be complied with, according to the decree of the court, makes him liable upon his official bond, to the mother of the child, for the amount which the person convicted was sentenced to pay to her for its maintenance. Xnyder v. Commonwealth, 94. 2. The deliver]/ of the land under a liberari facias is the executive duty of the sheriff alone. Meredith v. Shcicall, 495. SHERIFF'S DEED. The recital in a sheriff's deed, that the sale was made on n certain day, does not estop the grantee from showing by parol that it was made on a prior day. Hall v. Benner, 4U2. SHERIFF'S SALE. ASSIGNEE, 1, 2. INTESTATE AND DECEDENT, 7. JUDGMENT, 5, 6. EX- TINGUISHMENT AND SATISFACTION, 3. 1. When land is sold upon a judgment, the sheriff must appropriate the money arising from the sale to existing liens, according to their priority, and convey to the purchaser a title free from encumbrances. McGrcw v. MclMtiahan, 44. 2. When a judgment is obtained upon one of several bonds which were secured by a mortgage, and an execution issued thereon, upon which the mortgaged premises are levied, and afterwards sold upon a rendition! exponas, before the mortgage is due, the purchaser takes the land discharged of the lien of the inortgage. Id. 3. Judicial sales of land, divests all liens, whether general or specific. Me Luna/tan's Kx'rs v. McLanahari's Adm'rs, 9f>. 4. When a legacy is charged upon land, the sheriff's ycndee takes the land, discharged from the lien of the legacy. Id. 5. A decree which does not dispose of the whole fund for distribution, under the Act of Assembly "relative to the distribution of money arising from sheriffs' and coroners' sales,'' is not a final decree, and an appeal taken from such decree will be (jiiushcd. Itoyer v. Tafe, 227. 0. A purchaser at sheriff's sale before the deed is acknowledged, has not such a title to the land struck down to him, as will authorize him to give a lease of the premises. Hall v. Benner, 402. 7. Whether a water-right and tilt-hammer are appurtenances to land, and will pass by a sheriff's sale made by virtue of a judgment upon a mortgage of the land, depends upon the facts of the case, and must be submitted as a matter of fact to the jury. Id. H. If the court should decide from inspection of the papers, that such a right would pass as an appurtenant, it would be error. Id. 'J. A sale of real estate by the sheriff, upon a junior judgment, divests the lien of a prior mortgage upon the same land. Willard v. Morris, 480. 10 Upon an appeal from the decree of the Court of Common Pleas, distributing the proceeds of real estate sold by the sheriff, the affidavit must be made by the party: it is insufficient if made by the attorney. S(einl>ri. The return by a deputy-surveyor of a survey made by another, is :v ratification of it, and it is immaterial whether there was a precedent authority to make it or not. Id. SUQUEIIAXNA RIVER. ROADS AND BRIDGES, 3. TAXES. 1 . A purchaser of unseated lands, sold for the payment of a direct tax, in pursuance of the Act of Congress, and having in his possession a deed from the collector, who was authorized to make the sale, has such a ri:_ r ht as will authorize him to redeem the same lands, from a person who had purchased them at a treasurer's sale, for taxes, made in pursu- ance of the Act of Assembly. Mfllri>le\. lley, ;">4. '2. The treasurers of the respective counties, are the proper persons to make sale of unseated lands to pay the arrearages of taxes, and the Act of the Kith March, IS 1"), which gives them this authority, alters and sup- plies so much of the Act of the 3d of April, as required a warrant from the commissioners of the conntv, to issue to the sheriff or coroner, in case of a sale as aforesaid. McCoy v. Turk, 49'J. TERRE-TENANTS. PLEADING, 2, 4, 5. It is competent for a terre-tenant, who is brought in by seire facia* to revive a judgment to show that the original judgment was entered without authority, was fraudulent, or otherwise wholly irregular. 7nVA v. I'vncida, 245. TIME. 3. When a judgment in ejectment was entered by agreement of the par- ties, to be released on the payment of a certain sum, on or before a certain day, fiin>' is of the essence of the contract, and if the money be not paid on or before the day, the judgment becomes absolute and indefeasible. Gallic v. llain, 2i)4". TITLE TO LANDS. EJECTMENT, '2 ; EQUITY. 2: FRAUDS AND PERJURIES, 1 ; LANDLORD AND TENANT. 1. 2; LIMITATIONS, 2; SHERIFF'S SALE. t'i. TREASrilER'S SALE. T A X KS. TRIAL. NEW TRIAL; PLEADING. 17: PRACTICE, 3. 540 INDEX. TRUSTEE. TRUSTS. TRUSTS. EVIDENCE, 12, 20; INSOLVENT, 1. 1. A gift to a charity shall not fail for the want of a trustee, but vest as soon as the charity has acquired a capacity to take. McGirrv. Aaron. 49. 2. Devise " I give and bequeath all my real estate, to wit. &c., to a Roman Catholic priest, that shall succeed me in this said place, to be entailed to him and to his successors, in trust and for the use herein mentioned, in succession, forever, Jtc., &c., and further, it is my will, that the priest, for the time being, shall transmit the land so left him as afore- said, to his successor, clear of all encumbrances," &c. Held, that the devise was for the maintenance of a priest, but in ease of the congrega- tion, and for its benefit alone ; and the congregation is entitled to take the profits in the first instance, but subject to a right in the priest to have them applied to his support. Id. 3. There is no case where trustees have acted with good faith, and under the advice of counsel, in which they have been held responsible. Kinij v. Morrison's, Adm'r, 188. 4. Common skill, common prudence, and common caution, are all that courts require from trustees. Konigmacher v. Kimmel, 207. 5. If a trustee pay a judgment against the debtor out of the trust fund it is as much satisfied as if the debtor had paid it, and there is no legal or equitable reason for keeping it in force. Keller v. I^cib, 2'20. 6. The trustee cannot, by taking an assignment of it, when it is paid, make it available against the lands of the debtor, conveyed after it was entered, either for a good or valuable consideration, nor can it be made to cover any other debt or demand. Id. 1. Qucure. Whether such trustee can proceed on a judgment against the debtor (purchased with his own funds), by execution. Id. TURNPIKE AND TURNPIKE COMPANIES. CORPORATION, 1, 2, 3. UNSEATED LANDS. TAXES. VENDOR AND VENDEE. BARGAIN AND SALE, 1; DEED; EXTINGUISHMENT AND SATISFACTION, 3; FRAUDS AND PERJURIES, 1, 3. 1. The purchase-money due the Commonwealth, is an encumbrance which may be set up as a defence to the payment of bonds given for Land, which the grantor covenanted to convey clear of encumbrances. .Vc- Kennan v. Doughman, 417. 2. Bv a sale, conveyance and delivery of possession of land, the grain growing thereon does not pass to the vendee. Smith v. Johnston, 471. VERDICT. EQUITY. WARRANT. LANDS AND LAND OFFICE, 1, 3. WAY-GOING CROP. 1. Where a lease is made for the term of a year, and the tenant sows the land with spring grain before his term expires, he has no right to the crop of spring grain cut after the term is out: and this whether the lease be for money, rent, or n th?. shares, Drmi v. Jfos.vlcr, 224. 2. The custom in Pennsylvania, as to the way-going crop, is confined to fall srrain, sowed in the autumn, before the expiration of the lease, and cut in the summer after it determines. Id. INDEX. 541 WILLS. EVIDENCE, 18 ; EXTINGUISHMENT AND SATISFACTION. 4 ; INTESTATE AND DECEDENT, I ; LEGACY. 1. T. B. In his last will made the following devise ''I give and be- queath all my real estate to wit, ic.. to a Roman Catholic priest, that shall .succeed me in this said place, to be entailed to him ami to his suc- cessors, in trust, and for the use herein mentioned, in succession, forever, &c., &c., and further, it is my will, that the priest for the time being, shall transmit the land so left him as aforesaid, to his successor, clear of all encumbrances as aforesaid," &c. JJeld, that the devise was for the maintenance of a priest, but in ease of the congregation, and for its benefit alone And the congregation is entitled to take the profits in the first instance, but subject to a right in the priest, to have them applied to his support. Me. Gin- \. Aaron, 49. '2. C. 0. made his will in 1798, and died soon after, seis'-d, as he sup- posed of a large real estate. By his will, after disposing of his personal estate, he directed that his land should be occupied in a certain man- ner for three years, then valued by twelve men, and his son John have the right to take it at the appraisement; if he refused, the other children in succession to have the right; if none agreed to take it, it was to be sold by the executors, and in either event the money divided among his heirs. " But the sum of 40W. is to be charged on the said estate, and remain in the hands of the purchaser." The interest on this sum he directed to be paid to his wife, and at her death this sum to be divided among his three eldest children or their heirs ; "and as touch- ing the money arising from my land and estate. I give anil be- queaUi to my son J. 0. Jirst and foremost, 1(MM)/., because he is my only son, along with his share which he shall have with my other children." His personal estate was exhausted, and his real estate sold on execution within two years after his death ; a balance of 4