author: Coulter, J.

text:
    Snevily v. Wagner.
    Where the husband in right of Ms wife accepts land at the appraised value under a partition in the Orphans’ Court of the estate of the wife’s ancestor, and enters into recognisances to pay the valuation to the other heirs, he acquires a life-estate in Ms wife’s share of the land, and a fee simple in his own right in the residue.
    An irregular partition in the Orphans’ Court cannot be avoided collaterally.
    In error from the Common Pleas of Lebanon county.
    The plaintiff in this ejectment claimed under a sheriff’s sale of the land, as the property of Snevily, the defendant; and the question was, whether he had a fee simple or but a life-estate in right of his wife.
    It appeared that in 1838, proceedings were commenced in the Orphans’ Court, for the partition of four pieces of land belonging to the estate of Shantz. The inquest returned a valuation, and that they could not be divided. One of these lots being the one now in question, was accepted by Snevily in right of his wife, who was a daughter of Shantz; and he entered into a recognisance to pay the other heirs their proportion of the valuation. Two of the remaining lots were accepted by the other heirs or their assignees, and the fourth was sold by order of the court, when Snevily became the purchaser. At the same term, other proceedings in the same court were commenced, for the partition of another piece of real estate belonging to Shantz’s estate. The inquest returned a valuation, and the widow accepted it.
    At a subsequent period, the widow and heirs entitled, and the assignees of the other heirs of Shantz, made a settlement among themselves of the amounts charged upon the lands accepted under the partitions, and distributable among them. Upon stating the accounts, it appeared that the amount charged on the lot accepted by Snevily, was less than the amount he was entitled to receive from the amounts charged on the other lots. The difference was paid to him, and mutual releases executed; which were acknowledged by Snevily and wife before a justice of the peace.
    Prior to the partition, the wife’s interest was one undivided fifth in the whole estate.
    Eldred, P. J., charged the jury:—
    “ The evidence exhibited on this trial, shows a proceeding under the 39th section of the act of 29th March, 1832, when the property could not be divided into as many parts as there were heirs, but yet might accommodate some of them. It becomes necessary to inquire what interest Snevily acquired, when he accepted the part in dispute, and entered into a recognisance to pay the other heirs their portion of the valuation-money. Whether he took a fee simple in the whole, or only a fee simple in-part, or rather whether a life-estate in the whole, or in only one-fifth. That he took a life-estate in one-fifth there can be no question; the. one-fifth of this part which belonged to his wife, has never been converted, but remains in her, only he has a life-estate in it. The authorities on this question are full to the point: Eogelsonger v. Somerville, 6 S. & R. 267; Stoolfoos v. Jenkins and Wife, 8 S. & R. 167; Kean v. Ridgway, 16 S. & R. 60; and Johnson v. Watson, 2 Penn. Rep.

      “ The question recurs and is, Whether Snevily, at the time he accepted this purpart of his wife’s portion of the real estate, and entered into recognisance, with surety, to pay the other heirs their portion of the valuation-money, took an estate in fee simple in the remaining four fifths, or only an estate for life. In disposing of this question as we do, we do not consider that we disturb or interfere with the rule in Blocher v. Carmony, which was cited with approbation by the Supreme Court, under apparently the same state of facts. This case, as it is disclosed in the evidence, is different from the case of Blocher v. Carmony, in this important particular. In that case it was a partition under a provision of the act of 1794, which is supplied by the 38th section of the act of 27th March, 1832, whenever the real estate is divided into as many parts as there are heirs. In such a case, under that section, it is decided in Sampson’s Appeal, 4 W. & S., that the Orphans’ Court are bound to assign a part not taken, and were refused by them all, to one of them — that it could not be sold. Judge Kennedy calls it a full partition of the whole estate. "
    “ The case now before the court is one that falls within the 39th section of that act, and when the real estate cannot be divided into as many parts as there are heirs. From an examination of the authorities, I have come to the conclusion that in all cases of partition, under the 38th section of the act relating to partition in the Orphans’ Court, where the real estate can be divided into as many parts as there are heirs, even though they may differ in value, it is a full and perfect partition of the real estate, and has all the effect of a judgment in partition in the common law courts, and that the husband of a female heir, who takes a part, or has it assigned him by the Orphans’ Court in right of his wife, takes but a life-estate. This I consider as settled by the cases of Blocher v. Carmony, and Snevily v. Wagner.
    “ And when partition is made under the 39th section of the same act, and the real estate cannot be divided into as many parts as there are heirs, and a husband of an heir takes a purpart at the valuation, and enters into a recognisance with surety to pay to the other heirs their portion of the \aluation-money; he takes as if by purchase, and a fee simple in the purpart of all, except his wife’s portion of it, in which he holds a life-estate; and this is even so, if the husband should receive from the other heirs, who took other parts at the appraisal of the real estate, money enough to discharge his recognisance. For if he receives this money under such circumstances, it is because it is his own, and belongs to him perhaps in his marital rights. By a proceeding under this section, the authorities show that the wife’s interest in all the purparts, except the one taken by her husband (if he should take one,) are converted into personalty by operation of law; and when thus converted, up to the passage of the act of March, 1832, belonged to the husband, and at his control and pleasure: he could recover it at law, assign it if he pleased, as he could any other chose in action, without and even against the consent of his wife, and it could even he taken to pay his debts without his consent. If the husband took a purpart at the appraisal, and entered into recognisance with surety to pay the other heirs their portion of the valuation-money, he held it as a purchaser, except his wife’s portion of it, which was regarded as remaining without conversion or partition. In this he only held a life-estate, which went to her and her heirs after his death; and this was well enough for the husband, for that part he neither paid nor bound himself to pay. How can it make a difference in the tenure of the estate taken, whether he pays the consideration from moneys received from heirs who had taken other parts of the real estate (which in fact belonged to him), or paid the consideration from other money of his own, and pockets the money he receives from the heirs ? The decisions that bear out the principles I have stated, are numerous and uniform, commencing certainly as early as 1808, in the case of Yohe v. Barnet, 1 Binn. 365, and continued down until the act of 1832, which I shall presently notice. Fogelsonger v. Somerville, 6 S. & R. 267; Stoolfoos v. Jenkins, 8 S. & R. 167; McCullough v. Elder’s Executors, 8 S. & R. 181; Kean v. Ridgway, 16 S. & R. 60; Johnsons. Watson, 1 Penn. Rep. 371; and Cubbage v. Nesmith, 3 Watts, 316.
    “ These are all cases of partition where property could not be divided into as many parts as there were heirs, and all tend to the same conclusion, that the wife’s portion was converted into personalty, and that in case the husband took a purpart at the valuation, he took the parts of the other heirs as a purchaser, and his own wife’s part in it, which was not changed by the proceedings, but remained as it was at the death of her ancestor, he took a life-estate.
    “It is pressed upon the court that the husband’s equity only arises from his paying his own money, which makes the tenure of his land, whether a fee simple or a life-estate, depend on that fact. I have attempted to show, that prior to the act of 1832, the money paid was his own, although it came from his wife’s real estate; that he could invest it in that or other lands, as he pleased. But is the payment of money by the husband, derived from other sources than from his wife’s real estate, to be the touchstone to fix the character of the estate taken at appraisal, and this, too, on equitable principles ? By adopting such a rule, we would find still more difficulty than we now have in putting the machinery in motion to carry out our intestate laws, already in many cases a very difficult matter, with the materials we have for doing so. Suppose we make it the • test of the husband’s equity, and he takes a purpart at an appraisal of $1,000, and enters into the usual recognisance and security, and receives from the other heirs, who took other portions of the estate, $10, or $900, and is compelled to pay the balance from his other funds: what portion of this property would he take in fee, and how would equity measure it to him ? I can readily imagine cases that the most learned chancellor would find difficulty in carrying out with all his equity powers. Such a rule would lead to confusion and difficulties that every judge would deplore. Suppose a case in partition under this section of the act: a husband of a female heir takes a purpart in right of his wife, and enters into a recognisance with sureties, to pay the other heirs $5,000. The whole estate may remain unsettled for many years. How can a judgment creditor of such husband know how to treat the property ? Whether as a life-estate, or a fee simple ? How can he tell whether the husband will pay his recognisance from his own funds, or not ? If there are sufficient funds coming from heirs who took other portions of'the estate, how is he to know whether the wife will permit the husband to receive it ? How can he ascertain whether the husband will receive such funds, if his wife would permit him ? He could refuse if, if he pleased, I presume. If the creditor should proceed to treat it as a life-estate, it might turn out years after-wards to be a fee simple; and if he treats it as a fee simple, it might eventually turn out to be a life-estate. Must the character of the tenure remain open until all things are ascertained ? It might not be determined for years, and then perhaps depend on the will of the husband, whether it should be a life-estate or a fee simple. But let the rule be, that in all cases where partition is made of real estate of a decedent into as many parts as there are heirs, which Mr. Justice Kennedy calls a perfect partition, the husband who takes a part in right of his wife, takes a life-estate, and, in all cases where the real estate is not divided into as many parts as there are heirs, and the husband takes a part at the appraisal, and enters into the usual recognisance with surety, to pay the other heirs their portion of the money, he takes as a purchaser for all but his wife’s part in it, for which in fact he does not pay nor obligate to pay, and in that he holds a life-estate as tenant by the curtesy, and then we would have a certain rule to follow, and every man would know what was purchased, and by what tenure it is held. The authorities before cited, fully sustain this position, and especially Johnson v. Watson, 1 Penn. Rep. 373. The Chief Justice seems to have had the very subject before him; he says: ‘ a wife can claim nothing against her husband, or a purchaser of his estate, but the undivided share which descended to her from her ancestor, 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 had paid nothing for it, but he acknowledges recognisances to the other children, which, if not paid, may yet be recovered from his estate.
    “ The husband, under such circumstances, pays his own money, or binds himself to do so; and if he receives the money from the real estate of his wife to pay it, it is because he is entitled to it. The injustice to married women is not so glaring now, as it was before the act of 29th March, 1832. By the 48th section' of that act, when a sum of money is awarded to a married woman in- cases of partition, the husband cannot touch it without her consent, given in the most formal manner. And the provisions of that act are so consistent with the feelings of every honest man, that no court will permit a dollar to go into the hands of a husband, until every letter of that humane law is complied with. Prior to that act, the wife’s interest (in many cases) of her deceased father’s estate was converted into personalty by the operation of law, against her consent, and at the mercy of an arbitrary or mercenary husband.
    “ It is urged that there was a family settlement, and that the husband received money from other portions of the real estate sufficient to pay his recognisance; and therefore there is no equity in the husband, and by that arrangement he only can have a life-estate. But how is this ? It is true that a settlement took place, and they executed releases to each other for all claims on account of the valuation-money; and courts are inclined to favour such settlements, whenever they can do so without violating some positive right. But in this case the partition was made subsequent to the act of 29th March, 1832; a portion of the money is awarded to the wife of Snevily; she has not been called on, or, if she has, she has given no authority for her husband to receive any portion of it, according to the requisitions of that act. If Snevily should die to-morrow, what objection could there be made to. his wife’s suing for, and recovering from the other heirs, her portion of the valuation-money ? What if those releases, which are-in evidence here, were produced, signed by her husband, and even herself: could they avail anything as against her ? She has not released in the only form, that she, as a married woman, could do to be binding on her; and if this was done, would not the result be, that the estate of her husband or his surety would be bound to pay the other heirs the amount of his recognisance ? It would not be enough to say that she was present, and consenting to this family arrangement; she was the only one among them that could not. She could only give her consent in the form the law prescribed; without that, her assent is nothing, being a married woman.

      “ I have been embarrassed by the proceedings in the Orphans’ Court. That there is error in these proceedings I have no doubt; but I am not prepared to say that they are void. It would seem as if there was a perfect understanding amongst all of the heirs, in relation to the whole operation. All' took part in the proceedings, from the signing of the petition for partition down, without exception or objection, and all have enjoyed the property thus divided to the present time, or the fruits of it. All interested were represented, and it is not in their power now to object. The Orphan’s Com't is a court of record, and it may be questioned if their acts and decrees can be avoided in this collateral way in another court, as the subject-matter is evidently within its jurisdiction. Whether we regard the partition in this case as a statutable partition, or one by consent of parties who have held possession and received the benefits of it, I am unwilling to declare it void. . No one objects to it but the plaintiff himself, and it seems to me that no one is more interested in sustaining it, for without it he has not a shadow of claim to recover. It is the opinion of this court, that on the admitted state of facts, the plaintiff is entitled to recover four-fifths of the land in controversy.”

      Weidman, for plaintiff in error.

      Kline, contra.

      June 29.
   Coulter, J.

The judgment of the court below is affirmed, for the satisfactory reasons given by the learned judge before whom the cause was tried.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Light v. Leininger.
    A debtor may set off a debt due Mm by Ms creditor at the time of Ms death, though the estate of the creditor be insolvent.
    In error from the Common Pleas of Lebanon county.
    Case stated. Peffly, the plaintiff’s intestate, was a creditor of defendant for work done. The defendant was a creditor of Peffly also for work done to an amount exceeding the debt due to Peffly. Peffly’s estate was insolvent, and the question was, whether defendant could set off his claim against the claim by Peffly’s administrator.
    The court decided that he could.

      Mish, for plaintiff in error.
    The only event that can be considered as vesting any specific right or interest in the creditor, is the debtor’s death. His insolvency is then ascertained; the consequences of the contract are consummated; the proportion has become a fixed and determined interest, and cannot be divested. Before that time it is but a future and contingent right: Deichman’s Appeal, 2 Whart. 891.
    The death of the intestate fixes the nature of the creditor’s claim upon the assets in the hands of the administrator: Scott v. Ramsay, 1 Binn. 221; and no act of either the administrator or the creditor can alter the character of the claim, the administrator being only a trustee for the proper distribution of the assets to and among the creditors, and the creditor’s right determined at the death.
    The several classes of creditors standing upon their respective levels at the intestate’s death, it would not be in accordance with the principles of equity, to permit one who is a simple contract creditor of, as well as a debtor to the estate of the deceased, to lessen the fund out of which his equals are to be paid, by the amount due from the deceased to him, as he thus might receive the whole of his claim; whereas the other creditors, on the same footing with himself, would receive only a fro rata, and lessened by the sum which he has been permitted to set off: Leiper v. Levis et al. administrators of Levis, 15 S. & R. 108-113; Act of 24th February, 1834, sec. 21.
    The solvency or insolvency of the estate determines the right to a set-off: Bosler’s Administrators v. The Exchange Bank, 4 Barr, 32 — 34. Where the estate of the intestate is solvent and a set-off is allowed, it will not infringe on the vested rights of other creditors ; but where the estate of the intestate is insolvent, the injustice which would follow the allowance of a set-off is apparent.

      Kline, contrfi.

      June 29.
   Coulter, J.

The act of 1705, concerning defalcation, provides that where two or more persons dealing together he indebted to each other, and one of them commence an action against the other, that it shall be lawful for the defendant to plead payment and give any bond, bill, receipt, account, or bargain in evidence; and if it shall appear that the defendant hath fully paid or satisfied the debt or sum demanded, the jury shall find for him, and judgment he rendered in his favour.

It thus appears, by the provisions of the statute, that mutual demands of persons dealing together, mutually pay and satisfy each other, if the defendant choose to make defence. And the rule in equity is the same. Lord Chancellor Cowper sums it up in, 1 P. Wms. 326, “ that it was natural justice and equity that in all cases of mutual credit only the balance should he paid.” I cannot perceive any reason why the death of one of the parties should alter " the character of the respective demands; or how that event would instantly touch, with some renovating power, a claim or demand already satisfied in the contemplation of law, and restore it to vitality in favour of the estate, when it was extinguished in the life of the decedent.

The intestate in the present case had, in his lifetime, a claim or demand against the defendant for work done in the line of his trade, for $5; and the defendant had a claim or demand for work done in the line of his trade for the intestate, amounting to $10. The estate of the intestate is admitted to be totally insolvent, and his administrator seeks to recover the $5, and refuses to allow the set-off by defendant. He has pursued the claim from a justice’s coitrt up to this place. We cannot help him. Lr answer to the argument of his counsel here, that the debt or demand Avas assets in the hands of the administrator, I have only to remark that, as the decedent could not have recovered the demand in his lifetime, it was not a debt recoverable at his death, and never went into the hands of his administrator as assets. The administrator is bound to pay the debts of the deceased by as high an obligation as he is to collect those due to him; and upon a just and laAvful settlement, which it was his duty to make in this case before bringing suit, it would have been found that nothing was due his intestate. The defendant gains no preference whatever over any other creditor of the deceased, because his debt is reduced by the full amount of the decedent’s account against him. It is only the balance that is a debt, and in relation to that balance he stands on the same platform with other creditors.

The case of Bosler v. The Exchange Bank (4 Barr, 32), upon which the plaintiff hung his hopes, is not in point. The decision in that case went on the ground that the character of the claims was fixed at the time of the decedent’s death; and as the note of the defendant in that case was not due, his representative was entitled to demand and receive from the bank the amount of the deposit of the deceased as assets. We rule this case on a principle so strong in affinity to that as to be almost identical: that is, that at the time of the death, the law of set-off, which then took effect, extinguished the plaintiff’s claim. By the result of that law, as the character of all demands are then fixed, the defendant owed the intestate nothing.

Judgment affirmed.


author: Gibson, C. J.

text:
    Lantz v. Lutz.
    An action against a constable for an escape is not within the limitation of the act of 1772.
    And a prosecutrix for fornication and bastardy, committed with herself, may maintain the action for an escape of the defendant arrested under a warrant.
    In error from the Common Pleas of Lebanon county.
    Case for an escape. The plaintiff was the mother of a bastard begotten by the defendant, against whom she made complaint to a justice for fornication and bastardy. The justice issued a warrant, and the defendant was arrested, but subsequently escaped from the constable. There was evidence that the defendant was able to pay the ordinary sentence of the court in such cases. The court (Eldred, P. J.) told the jury, that the plaintiff was entitled to recover the damages she had sustained, and that the act of 1772 did not apply to the case. The action was brought more than one year after the escape.

      BibigTiaus, for plaintiff in error,
    relied on limitation in the act of 1772.

      Weidman, contrá.
    The words of the act confine that limitation to actions for matters done in obedience to the warrant. Unless an escape was in obedience to the warrant, the case is excluded from the operation of the act.

      June 26.
   Gibson, C. J.

The act of 1819, which allows the attorney-general to enter a nolle prosequi on an indictment of fornication and bastardy, pursuant to an agreement of compromise between the prosecutrix and the defendant, seems to recognise a private right in her to compensation for the keeping of the child, to be enforced by the sentence. That this statute has modified the nature of the proceeding against him, was held in Maurer v. Mitchell, 9 W. &. S., 69, in which such an agreement was deemed to be legal and a ground of action. It may be taken for granted, therefore, as it was in the court below, that an escape of the putative father from a constable who had him in custody on a warrant issued on the information of the mother, is a private wrong which gives her an action against the officer ; and it is not contested that such an action might have been maintained in this instance, had it been brought in time. The defence is rested on the seventh section of the act of 1772, which limits the period of bringing certain actions against justices and constables, to six months from the time of the wrong. The design of that act, however, is to defend the officer against the consequences of involuntary trespasses, not against the consequences of wilful misconduct. It sometimes happens that a constable becomes a trespasser by executing the warrant of a justice who has misdirected it, or who has not jurisdiction of the subject-matter of it; and it is to make the justice exclusively answerable for his own defaults, that it is enacted in the sixth section of the same statute, that no action shall be brought against any constable for anything done in obedience to his warrant, before the plaintiff has demanded a sight of it, and before the demand has been neglected for the space of six days; that in the case of an action brought after compliance with such demand and without making the justice a party to it, the jury shall give their verdict for the defendant; and that if it be brought against the justice and the constable jointly, the jury shall, on proof of such warrant, find for the constable. But the protection does not stop there, even though the constable may have refused to submit his warrant to inspection for the space of six days. The seventh section, insecurely relied on here, provides “ that no action shall be brought against any justice of the peace for anything done in the execution of his office, or against any constable, or any other officer or person acting as aforesaid” — that is, in obedience to his warrant as specified in the preceding section — “ unless commenced within six months after the act committed.” The constable acted in this'instance not in obedience to his warrant, but in open contempt of it; and the section is inapplicable to him in its letter and its spirit.

Judgment affirmed.


author: Burnside, J.

text:
    Faunce v. Sedgwick.
    The sheriff, when selling pergonal property on execution, may disregard a bid, conditioned that the money be applied to the bidder’s execution, even though he was legally entitled to the proceeds of sale. '
    A bid reduced to writing before the sale is concluded^ is a waiver of prior bids by the same person.
    In error from the Common Pleas of Dauphin county.
    This was an action on the case against the sheriff, for refusing a bid by the plaintiff, who was an execution creditor.
    It appeared that the sheriff, under the plaintiff’s execution, had levied on certain personal property, which was appraised under the act of 1842, and not bringing two-thirds of the valuation, a bond was given pursuant to that act.
    Subsequently to this levy, one Gibbart issued a fi. fa. against the same defendant, under which real estate was seized and condemned. The attorney, however, gave notice to the sheriff not to pay over the proceeds of the property levied on under Sedgwick’s fi. fa.

      Anfed. fi. fa., at the suit of the Harrisburg Bank, against the same defendant, was also left with the sheriff, but no levy was made thereunder. The attorney on this writ also gave notice to the sheriff to pay into court the proceeds of Sedgwick’s execution.
    On the sale of the property, there was evidence that Sedgwick made several bids, and it was disputed whether they were conditional; but he finally reduced his bid to writing, in which was contained a condition that the money made should be applied to his execution. The sheriff refused to accept this bid, and sold the property at a less price than Sedgwick had offered.
    Hepburn, P. J., left it to the jury to say whether Sedgwick’s bid had been conditional, instructing them that the sheriff was bound to accept it though conditional, if no reasonable man could have doubted that the money ought to be applied according to the condition. That in this case the two other executions were clearly not entitled: for on one of them there had been a levy and condemnation of real estate, and on the other no levy on the goods ; and that if there were a doubt he should have demanded indemnity, and not have sold the goods at a less price than was bid.

      Watts and McCormick, for plaintiff in error.

      Fisher, contó,
    contended, that i^ having been decided that Sedgwick alone was entitled to the money, 7 W. & S. 260, the sheriff was bound to accept his bid.

      July 8.
   Burnside, J.

I deem it unnecessary to take up the numerous errors assigned in detail, as we v-iew in the charge on the evidence manifest error from beginning to end.

In England, upon a fieri facias, the sheriff may either appraise the goods and sell them, without an inquiry, or else he may appraise them by a jury and sell them: Dalton on Sheriffs, 147. If he sells them by auction, the expense attending .it, over and above the fees and expenses allowed him by the statute, will fall on himself, unless the plaintiff or defendant expressly require the auction: Woodgate v. Knatchbull, 2 Term. Rep. 157. In Pennsylvania, our provincial statute requires a public sale on notice; and, so far as the subject is touched by subsequent statutes, under the commonwealth, similar provisions are required. The sheriff always sells by public vendue or outcry, in accordance with our local law and the uniform usage of the state. The principle is well settled, that a bidder at auction has a right to retract his bid at any time before the hammer is down, unless there are conations of sale containing express stipulations to the contrary: Babington on Auctions, 41, 19 Law Lib., from 13 to 18, and the cases there cited.

The right to retract the bid 'before the hammer is down, cannot be denied. In Donaldson v. Kerr, 6 Barr, 486, it was held, that at a judicial sale by the sheriff, the bidder is not bound by his bid, after an adjournment of' the sale on the sheriff’s mere motion, although such bid was not expressly retracted before the adjournment. Bearing these principles in mind, how did Sedgwick stand ? He proves he bid $1,150 for the printing establishment, which was refused by the sheriff. Whether this bid was absolute or conditional, does not clearly appear. Nor is it material, for it was virtually withdrawn; for in a few minutes he went to a table and reduced a bid to writing, and handed it to the sheriff, viz:—

“To Samuel Faunce, Esq., Sheriff of Dauphin county.

“Sir: For the press and materials of the Pennsylvania Intelligencer, as now offered for sale, I hereby offer to bid the sum of eleven hundred and fifty dollars; the money to be applied on my executions, and the costs on the same now in your hands, standing against Elliott & McCurdy; and if you do not strike down the same to me, on these terms, but sell for a less sum, I shall hold you personally liable for the loss I may sustain thereby.

“P. C. Sedgwick.

“ February 7, 1844.”

This paper Mr. Sedgwick handed to the sheriff. It was his' definite and last bid, and superseded all the previous ones. As this bid was in writing, there could be no mistake as to its tenor and effect. Was the sheriff bound to take it ? We are of opinion he was under no such obligation. What was it ? That he would give $1,150, on condition that the $1,150 be applied to his execution. A bidder has no right to impose conditions on his bid. The writ under which the sheriff sold, commanded him to have the money before the court. Here the sheriff had notice of different claimants; and in such a case, the prudent and proper course was for the sheriff to pay the money into court, and let the law distribute it. Execution has heretofore been deemed the life as well as the end of the law; and if the sheriff was bound to accept conditional bids, a sale of property would only be the commencement of new litigation. His writ commanded him to sell for money, and have that money before the judges of the court on the return of the writ. The money the sheriff made was determined by the court to belong to the bank. The question, in that case, involved the construction and .effect of the stay-law of 1842. The profession and the inferior courts differed, as to the effect of the law upon property appraised under the act. It was for the superior court to settle the law on the subject. If the Supreme Court had affirmed the judgment of the Common Pleas, and the sheriff had returned the sale on the conditional bid of Sedgwick, he would have made a nice exhibit to the court, in selling on a conditional promise, which the law would not have helped him to enforce. Conditional bids, at sheriffs’ sales, are contrary to law, and must be disregarded.

In the case before us, Sedgwick had no claim to a verdict; and the jury ought to have been so instructed.

Judgment reversed, and a venire de novo awarded.


author: Bell, J.

text:
    Fisher v. Longnecker.
    Unless process be served before the return day, proceedings before a justice of the peace are coram nonjudice; and if the defendant subsequently appear and insist' on the cause being heard, and judgment be given for defendant by default, it is but a-judgment of nonsuit.
    In error from the Common Pleas of Dauphin county.
    On'the trial of an appeal from J. Lynch, Esq;, the question was, whether defendant had sustained his plea of former recovery.
    ■ He gave in evidence proceedings for the same cause before J. Walborn, Esq., commenced by summons returnable December 10th. The constable returned “that plaintiff did not want it served,” whereupon the cause was continued. April llth following, defendant required notice to be given to plaintiff to try the cause, which was served, and judgment for the default given for defendant.
    The present action was commenced before Lynch, before the judgment above mentioned was rendered.
    The court considered these proceedings a'bar to the action.
    jET. Alrichs, for plaintiff in error.

      McOormiclc, contrá.

      June 28.
   Bell, J.

It is conceded the action instituted by Justice Walborn, was for the same cause as that sued upon before Justice Lynch. The question then is, whether the judgment rendered by the former justice is conclusive of the controversy between the parties. At the time of its rendition the second suit was pending;, and it appears to have been brought to the' notice of the second justice by a certified transcript of the first record, though not formally pleaded in bar. This was first done when the appeal was called for trial in the Court of Common Pleas. But was not the whole proceeding before Justice Walborn cor am non judice and void, after the return of the summons issued by him ? The act of 1810 points out, with much particularity, the mode and manner of proceeding by a justice of the peace, in causes instituted before him. The action is to be commenced by writ of summons or capias. If the-former be the process used, it is to express the day upon which the defendant is commanded to appear, and it is to be legally served upon him, without which the justice cannot proceed a step. If it be not served before the return day, it is functus officii, and should the plaintiff wish to prosecute his suit, he must sue out a new writ. There is no means provided by which he can compel an appearance to the first, when it remains unserved on the defendant, though, questionless, the latter may appear voluntarily even after the return day, and the former may accept this appearance, and proceed to a determination of the cause. But was there not, in this instance, a substantial discontinuance of the first action ? As appears by the transcript given in evidence, the plaintiff directed the constable not to serve the writ upon the defendant. The entry is, “ Constable returned the summons that the plaintiff did not want it served now. Continued until further orders.” This direction was given some time prior to the 10th of December, 1843, the return day of the writ, and not having been retracted, as I conceive, put an end to the suit, and of course to the justice’s power over the subject-matter of it. Without a return of the summons “served,” he had no-hold over the defendant; after an actual interference to bar the operation of the writ, which was in effect a discontinuance accepted by the justice, his grasp upon the defendant for the purpose of judgment was gone. Neither party could reinvigorate the action without the assent of the other, - except by means of a new writ. If this be so, it follows no action was pending before Mr. Walborn when the second suit was commenced, and consequently no judgment could have been rendered by him to affect the subsequent proceedings.

But were this otherwise, the first judgment cannot be pleaded either in abatement or in bar of the second suit. Although not so denominated on the justice’s docket, it was but a judgment of non-suit, of which the costs had been paid, before plea pleaded by the defendant. By the sixth section of the one hundred dollar act, it is expressly provided that, “ in case the plaintiff does not appear, either in person or by agent, to substantiate his charge, the justice may then, or at such other day as he may deem reasonable, proceed to give judgment against him by nonsuit, for the costs, and fifty cents per day for the reasonable costs of the defendant, for his trouble in attending such suit.” Now a judgment of nonsuit puts an end to the pending action, without, however, concluding the rights of the parties. These have not passed in rem judicatum, and consequently the plaintiff is at liberty to begin again. And it is right it should be so. Where a plaintiff does not appear to make good his claim or demand against the defendant, the justice does not pass upon the merits of the controversy, but simply mulcts the plaintiff in costs for his negligence and the trouble to which he has put the defendant. The judgment of the justice is therefore expressly made the same as that which a court of record may render under similar circumstances. Even where there has been a trial before a jury, and the action has been determined against the plaintiff upon some merely technical ground, irrespective of the merits, the defendant cannot plead the judgment in bar of the subsequent action, except under particular circumstances; because, says the law, the cause of controversy has not been passed on by a competent tribunal. The reason is irresistible in its application to the first judgment rendered here. The plea of former recovery was therefore unsustained by the proof, and the judge below consequently erred in deciding otherwise.

Something was said on the argument of a failure, or want of consideration of the defendant’s undertaking. But we see nothing in this. The plaintiff’s offer of' evidence, admitted to be well founded, discloses a sufficient consideration to support the defendant’s promise.

Judgment reversed, and a venire de novo awarded.


author: Rogers, J.

text:
    Ayres v. Novinger. Armstrong v. Novinger.
    Proceedings were commenced by a landlord against two tenants, to remove tliem after the expiration of a lease. One of them appealed to the C. P., and the appeal was dismissed. The landlord then commenced proceedings before other justices against the defendants separately: such proceedings are void, for, by the dismissal of the appeal, the former proceedings remained in force.
    The sheriif or his regular deputy alone can select a jury under the landlord and tenant act.
    In error from the Common Pleas of Dauphin county.
    These were three cases argued together. In the first, it appeared that Novinger commenced proceedings before two justices, against Ayres and Armstrong, setting forth that they were his tenants under a lease which had expired. Ayres appealed, but her affidavit was defective, and the appeal was dismissed by the Common Pleas. She then sued out this writ of error.
    After the appeal had been dismissed, Novinger commenced the proceedings before two other justices: one against Armstrong alone, for the same cause as in the former case against Armstrong and Ayres, alleging that Armstrong was the tenant, &c.; and the other against Ayres, setting forth that she held under a previous term, which had expired. Novinger was put into possession by a writ of restitution; and the defendants removed the causes to the Common Pleas by certiorari. The exceptions there, were:—
    1. That the justices could not proceed pending the former proceeding.
    2. That the sheriff had no right to depute any person to select the jury.
    The record showed that the sheriff had deputed one Jury to execute the writ. It was proved. by depositions, that this was a special deputation, at the request of the landlord’s attorney. After the selection of the jurymen, the sheriff approved of them, and they were sworn in his presence.
    The exceptions below were assigned for error.

      Alleman and Msher, for plaintiffs in error.
    Ayres, contó.

      June 26.
   Rogers, J.

These cases are so intimately blended, depending, as they do, on the same title, that justice requires they should be considered together.

We perceive no error in quashing the appeal in the case of the complainant v. Mary Ayres and William Armstrong. The appeal was taken by Mary Ayres, who, so far as appears, was a tenant, on her oath declaring merely that she verily believes she is entitled to the premises, instead of alleging, as she is bound to do by the act of 21st March, 1772, that the title to the land is disputed, or claimed by some person or persons named, in virtue of a right or title accrued or happening' since the commencement of the lease. All the court did, and all they were required to do, was to quash the appeal. The proceeding before the justices was not quashed: the case, therefore, remains in the same situation it was when the appeal was taken. It appears the complaint was made in the usual form before two justices; the parties appeared, and the jury, being duly qualified, were proceeding to hear the proofs and allegations of the parties, whereupon Mary Ayres made the oath as above stated, and entered bail, and the justices and freeholders forbore to proceed further in the premises. No further proceedings in this complaint have been taken, and the case still remains pending and undetermined before the justices. If the court had quashed the proceedings, as they might have done, a different case would be presented; but having contented themselves with quashing the appeal, the case remains undisposed of. Matters standing in this position, the complainant, instead of proceeding to a final disposition of his case, instituted other proceedings, one against Mary Ayres, and the other against William Armstrong. The proceedings were before the same justices, and before the same jury, and resulted in a finding, on both cases, against the defendants. The defendants, although summoned to attend, did not appear, but contented themselves with giving notice, which amounts to a plea to the jurisdiction of the justices, that the former proceedings against Mary Ayres and William Armstrong were still pending and undetermined. Now, although'the first complaint is against both jointly, and the latter against each separately, yet we must regard them as in substance the same, grounded, as they unquestionably are, on the same transaction. We.cannot but believe that this is an attempt at oppression, under colour of law; to obtain an unfair advantage, which cannot be too much discouraged or rebuked by the court. Landlords already have too much advantage over tenants. In a proceeding under the landlord and tenant law, they are not concluded by the finding of the jury, although tenants are. They may renew the complaint, before other justices, until a more subservient jury can be empannelled, a mischief which, in my judgment, requires some legislative remedy. But, in addition, it is now claimed that he may have the same proceedings going on at the same time, before different justices, in distinct and different parts of the county. This is a practice which cannot be tolerated; and wherever attempted, the proceedings must be set aside.

Another exception, common to the two last cases, is to the right of the sheriff to depute a stranger to select as well as summon a jury, in a proceeding under the act of the 21st March, 1772.

The 12th section commands the sheriff to summon twelve substantial freeholders. Although the word summon is used, he selects, as well as summons, by necessary implication. One duty is in the nature of a judicial, and the other is ministerial; and although one may be done by deputy, it is not so clear the other may. Indeed, we think the contrary is virtually decided in McMasters v. Carothers, 1 Barr, 323. It is not the very point, as that is the case of a deputy-sheriff, who undertook to depute another to select and summon a jury of inquest; here it is the sheriff himself. But the principle settled there applies here. It is said that the selection of the jury implies judgment, and partakes of a--judicial character. The officer who selects a jury peiv forms an important duty, essential to the administration of justice, and under the sanction of official oath. The duty must, therefore, be performed by himself, or his sworn deputy. It cannot be delegated to another, who is under no such sanction. Nor do we think the subsequent assent of the sheriff can cure this radical defect. It is of the utmost consequence that the jury should be impartial, which cannot be expected if they are selected either by the party himself, or, what is the same thing, by a person designated by him. The law has committed this duty to the sheriff, or to his official deputies.

The -order of the court, quashing the appeal in the case - „ of Novinger v. Mary Ayres and William Armstrong, is affirmed.

In each of the cases, Novinger v. Mary Ayres, and same v. William Armstrong, judgment reversed, and proceedings set aside, and writs of re-restitution in each case awarded.


text:
    Hale v. The Commonwealth to the use of Grady.
    Where proceedings were commenced before a justice to recover a debt less than §100, and the defendant confessed judgment for a sum exceeding §100, which was paid to the justice without execution issued, his sureties are responsible-for it to the plaintiff.
    In error from the Court of Common Pleas of Dauphin county.
    Debt against Hale, who was co-obligor in a joint and several bond with Davis, a justice of' the peace of the borough of Harrisburg.
    The action was against Hale, the surety, who survived Davis, who had been elected a justice and given this bond under the act of 1839 : conditioned, “that if the said John Davis shall and do, during his continuance in the said office of justice of the peace, faithfully apply all moneys which shall come to his hands css an officer; then,” &c.
    At the trial, before Eldred, P. J., the plaintiff below gave in evidence the bond on which the action was brought, and also the docket of Davis (who ivas deceased), from which it appeared that a suit had been brought by Grady v. Grosh, commenced by summons, on a claim for $75, wherein defendants appeared and confessed. judgment for $117; and also an entry on the docket of a payment by defendant of $137.
    The defendant’s counsel contended that the justice had no jurisdiction of the case, the amount exceeding $100; and therefore, although the justice received the money and neglected to pay it over, his surety was not liable. The court were of opinion that the record showed that he received the money “as an officer,” and that his surety was liable, and so instructed the jury.

      Fleming, for plaintiff in error.
    The justice had no jurisdiction; and the parties must appear: King v. King, 1 Penn. Rep. 15-20; Camp v. Wood, 10 Watts, 118. The case of Commonwealth v. Kendig, 2 Barr, 448, does not apply. There the justice'had jurisdiction of the amount in controversy. The bail is not liable, where the justice received money merely as agent — not liable for money received on bond, before due: Wright’s Just. 733.

      Smith and Ramsay, for defendant in error.
    The liability of bail of a justice of the peace, arose from the terms of his bond, and was not controlled by the jurisdiction of the justice. If he received the money colore officii, it was sufficient to fix the bail: Commonwealth v. Kendig, 2 Barr, 452. The justice had jurisdiction: lPike, 275. The justice could not be treated as the agent of Grady, as that would be an indictable offence: 14 S. & R. 158. Defendant voluntarily appeared before the justice; he cannot now question the judgment, nor can his sureties: Clark v. Worley, 7 S. & R. 349; Dechert’s Appeal, 5 W. & S. 342; Roth v. Miller, 15 S. & R. 100.

      June 28.
   Burnside, J.

The act of 21st June, 1839, (Dunlop, 763) directs that before justices of the peace not freeholders enter on the duties of their office, “ they are to give bonds with sureties, conditioned for the faithful application of all moneys that come into his hands as an officer.” The precise form of the bond is not prescribed by the legislature. The bond in question declares that Davis has been duly elected, &c., and the condition isthat if he, the said John Davis, shall and do during his continuance in office faithfully apply all moneys which shall come to his hands as an officer.”

The money in question came into his hands in the case of Grady v. Grosh, when, on the 15th March, 1841, he issued a summons which was returned served, on a note of $75, dated June 28, 1831, and payable in four months. The cause was continued to the 26th, when the defendant confessed a judgment for $117. The defendant entered special bail for the stay of execution, and afterwards, on the 5th January, 1842, as appears on the justice’s docket, he paid him $137. The only point raised is, that the sum in controversy exceeded the jurisdiction of the justice. The act of 1810, sec. 11, authorizes justices of the peace rendering judgments to receive the amount from the defendant when it is offered before execution issued. Mr. Justice Rogers, in delivering the opinion of the court in The Commonwealth v. Kendig, 2 Barr, 450, says that under the proper construction of the act of the 21st June, 1839, the surety in the official bond is liable for the faithful application of all moneys and costs received, which came into the hands of the justice, as a justice, in suits brought on claims before him; where the money is received in his official capacity the liability is incurred. The object of the law in requiring the bond with surety is to protect the rights of suitors.

Here, the justice issued a summons; defendant appeared, and confessed judgment, it is true for an amount beyond his jurisdiction; entered bail before the justice and obtained the legal stay of execution ; paid the money to the justice before an execution issued. If he had issued an execution, and the constable had collected the amount and squandered it, would any one pretend that his hail could set up want of jurisdiction in the justice ? The money was received by the justice as an officer. The case is within the word, letter, and spirit of the bond and act of Assembly, and the bail of the justice are liable.

Judgment affirmed.


text:
    Miller v. Meetch et al.
    An executor who has taken the oath, but not administered, may renounce; and the register thereupon grant letters to the surviving executor.
    Where there is nothing in the register’s office to show that an executor consented to accept the office, other than an endorsement on the will by the register that he had been sworn, there beingmo affidavit drawn up, nor any record thereof nor of the grant of letters testamentary, he may properly renounce the office by writing filed with the register.
    A direction to executors to sell so much of the real estate as they think proper, to pay debts and distribute among the testator’s children, may be exercised by a surviving executor; and it is not necessary that he should previously make prohate or take out letters testamentary, for his authority is not derived from the register.
    And where testator directed such sale to be made before a day certain, the power may be exercised after that day, it being in the nature of a trust.
    A conveyance purporting to be in pursuance of the power, and to pass the testator’s estate, executed in the name of the executor without the addition of his official designation, passes the estate by virtue of the power, even though he thereby conveys his own estate in part of the premises.
    In error from the Common Pleas of Daupbin county.
    Tbe question in this ejectment was, wbetber there had been a valid execution of a power given by will.
    The plaintiffs were some of the heirs of John Meetch. He died seised of land held in common with one Williamson, under a warrant.
    In 1823, he made his will. The clause on which the question arose was as follows: “ I will that my executors, on or before the 1st of April next ensuing, sell either at public or private sale, as they may judge proper, all my estate, real and personal, hereby giving them full and ample power and authority to execute a deed or deeds for the same, and after payment of just debts, I will the proceeds thereof be equally divided among all my children.”
    Trump, John Meetch, jun., and Davis, were appointed executors.
    Trump died before the testator. The will was admitted to probate in 1829, on the oath of Davis to the signature of one of the subscribing witnesses, and on the oath of the other witness.
    Endorsed on the will were the following entries :—
    “June 20, 1839. — John Davis, Esq., sworn as executor, and according to an act of Assembly entitled ‘ An act relating to the collateral inheritance tax.’ Before me, J. Cameron, register.
    “Eeb. 9, 1830. — John Davis, Esq., one of the foregoing named executors, having this day renounced as executor, declines acting as such. See renunciation filed of this day.
    “Eeb. 9,1830. — John Meetch, the surviving executor, sworn as executor, and according to the act of Assembly entitled {An act relating to collateral inheritance tax.’ Before me, Samuel Poole, register.”
    The defendants, having given the above in evidence, offered a deed by John Meetch, the younger, to Smith, under whom they claimed.
    This deed, dated in 1833, recited the title in the testator and Williamson, the will of testator and Davis’s renunciation, and that Williamson’s title had vested in J. Meetch, jun., and purported to convey the whole tract. In the granting clause were the following ■ words: “ Have granted, &c., and by these presents, by force and virtue of the will aforesaid, do grantand conveyed all the right of Meetch the testator, and of Meetch the younger, in the land. This deed was admitted under objections, that it was executed by Meetch in his own right and not as executor (which was the case, excepting the effect of the recital and the clauses above stated); that he only intended to convey his individual estate; and that he alone could not execute the power, since Davis was sworn as executor, and was living at the date of the deed.
    The defendants further offered the renunciation of Davis, filed in the register’s office February 9, 1833, which was admitted, but the court said he could not renounce in that way after being sworn. It was a simple renunciation in writing signed by Davis.
    It was further shown that in March, 1830, Meetch alone filed an inventory of testator’s estate; and it was admitted that no administration account had been settled, and that there was no evidence in the office to show when or to whom letters testamentary on the estate issued: other than the endorsements on the will already mentioned.
    The court (Hepburn, P. J.) instructed the jury that, in the absence of all evidence showing that Meetch alone had authority to execute the deed, it would not avail even if executed under the power — of which there was a doubt as to the intention.
    McQormick, for plaintiff in error.

      JFisher, contrá.

      July 7.
   Bell, J.

Was the power to sell and convey the premises in dispute conferred by the will of John Meetch the elder, duly executed by John Meetch the younger, as acting executor? If so, the plaintiffs have no case.

As by the will in question, the power to sell was given to the executors virtute officii, -and partly for the payment of debts, there is no doubt that even before the act of 12th March, 1800, it might have been executed by a surviving or acting executor: Lessee of Zebach v. Smitz, 3 Binn. 69; Heron v. Hoffner, 3 R. 397. But by this statute, the right to execute is expressly conferred on the surviving or acting executor, in all cases where his fellows have died, or refused or renounced the execution of the trust. This beneficial provision is repeated by the aet of 24th February, 1834. The inquiry is thus narrowed to the single point, whether at the time of the sale and conveyance to Isaac Smith, Meetch the grantor was the surviving and acting executor of the will of Meetch the testator ? Trump, who was named as executor, died in the lifetime of the testator. John Davis and John Meetch, also named as executors, survived him. On the 20th of June, 1829, the will was proved before the register of the proper county, by the.oath of one of the subscribing witnesses, and evidence of the .handwriting of the other. Something was said on the argument about the insufficiency of this probate, inasmuch as the'subscribing witness, whose signature was proved, was not shown to have been, at the time, dead or without the jurisdiction of the register.

But taking probate of wills is a judicial act which cannot be impeached collaterally. Until duly reversed, the presumption is that everything was done correctly: Loy v. Kennedy, 1 W. & S. 396. Besides, for the purposes of the present question, it is of no consequence, as will be presently seen, that the will was irregularly proved, before the register, or whether it was proved at all.

On the 9th of February, 1830, Davis, by writing filed in the register's office, renounced the executorship, and declined to take upon himself the execution of the trusts of the will. A renunciation, to be effective as such, must be by rvriting filed with the ordinary or, here, in the register’s office, or be evidenced by record made thereof. But no particular form of record is necessary; and it may be by a letter addressed to the officer by the executor, or some one for him, duly authorized : Toll. on Executors, 42; Heron v. Hoffner, supra; Commonwealth v. Meteer, 16 S. & R. 416. It is not to be doubted, that in the present instance, the renunciation filed with the register was sufficiently expressed in point of form, and therefore operated to discharge Davis from the executorship, unless something had, previously, occurred which prevented it from having this legal effect. The plaintiffs below contend that it sufficiently appears Davis was duly sworn in as executor, under the will; and that, after this, he was not at liberty voluntarily to renounce the office he had thus undertaken. An executor has his election, whether he will accept or refuse the executorship; and such election may be determined by acts which amount to an administration. For it is said that if he once administer, it is considered that he has already accepted of the executorship, and the ordinary may compel him to prove the will. In some of the older cases, this doctrine was carried so far as to hold, that if he once administer, he is not only compelled to undertake the office if the ordinary desire it, but that the ordinary had no jurisdiction to accept his refusal, and grant administration cum testamento annexo to another. But the modern rule is, that the ordinary may accept the executor’s refusal, notwithstanding he has administered: 1 Williams on Executors, 148-9, and the cases there collected. So, too, in a ease decided 31 Car. 2, the executor named in the will had taken the usual oath, and then refused; and it was adjudged by the King’s Bench, that having taken the oath, he could not be permitted afterwards to refuse, and the Ecclesiastical Court had no other authority: Anon. 1 Ventris, 335. But now, even after probate, if the executor has not administered, the court will permit him to renounce upon his own application, though he has taken the usual oath and given an appearance as executor: 1 Williams on Executors, 152. In Jackson v. Whitehead, 3 Phillim. 577, a renunciation was permitted, in order that the executor might be examined as a witness. In delivering judgment, Sir John Nichol doubted the authority of the case in Yentris; and said that, at most, it only decided that a voluntary renunciation is not so binding as to exclude an executor from the duties of the executorship.

Now there is no pretence here that Davis ever intermeddled with the goods of the testator by administration of any portion of them; and if it were admitted that he was duly sworn as executor, and this appeared of record, I do not see why the register, standing in the place of the spiritual court, might not afterwards accept his voluntary renunciation, and thus release him from the executorship. I agree, that if he had received and administered any of the assets of the estate of his testator, the power to relieve him from the burden of the trust could only be exercised by the Orphans’ Court of the proper county, in pursuance of the third section of the then existing act of 1797. Be this, however, as it may, there is, in truth, no sufficient evidence that Davis ever took the usual oath of an executor, or in any way consented to accept the office up to the period of his renunciation filed of record. There is nothing in the case pointing to the existence of such a fact but the following endorsement on the original will, said to be in the handwriting of the then register of Dauphin county: June 20, 1829, John Davis, Esq., sworn as executor, and according to an act of Assembly, entitled An act relating to collateral inheritance.’ Before me, John Cameron, register.” No copy of the oath is to be found in the proper office, nor is there any record of it extant. The register of wills is a judicial officer having an official seal, and required by usage as well as by the tenor of the statutes regulating his proceedings, in this state, to keep a record of his acts and doings. These are public records, importing verity, and as such receivable in evidence before other tribunals. Upon probate of a will being made, the original is to remain of file in Ms office, and a copy thereof, with the certificate of probate and letters testamentary thereon, under the seal of his office, is granted to the persons entitled to receive them. After probate and the administration of the oath to the executor, these letters are always issued, and a record of the facts made. Regularly, there should be the registration of a formal decree of the mode of proof, and that it was deemed sufficient ; though the omission of this will not vitiate the whole proceeding. In Logan v. Watts, 5 S. & R. 212, it was held that a register of wills being a judge, Ms certificate, under the seal of his office, that a will of lands had been duly proved and approved before him, and a copy thereof annexed, is primd facie evidence of such will, though a copy of the probate is not set out in the certificate. In Loy v. Kennedy, supra, the same rule is recognised, in deference to the looseness of our practice. There the certificate of the register, that he had admitted a will to probate and granted letters testamentary, which accompanied the certificate, was received as evidence, though the certificate showed the proof was, in itself, defective. But I think we have never gone beyond these cases. In our case, it does not appear from the record, or by any authenticated certificate of the register, that letters testamentary were ever issued to Davis; nor, as I have said, is there any proof other than the endorsement to which I have referred, that he assumed the trust of the executorship. Now, I doubt that, apart from actual administration, anything short of a certificate of probate and the actual grant and acceptance of letters testamentary, should be received as evidence of the undertaking. Notwithstanding the laxity of practice which seems to have prevailed for a long time in the register’s office of this county, — furnishing, perhaps, a reason for the absence of everything like a record touching this will — we think it would be going altogether too far to entertain a loose memorandum as destructive of a solemn act of renunciation, and that, too, when all the evidence shows the renouncing executor never acted in execution of the will. We are, of course, not influenced to this conclusion by any considerations of supposed hardship which might follow an opposite determination, but we cannot suppress a feeling of gratification in the conviction that we are not forced by the operation of a technical rule to inflict injustice upon an innocent purchaser for value.

Giving, then, to the renunciation of Davis the legal effect that belongs to it, but one executor of John Meetch’s will remained to carry it into effect.

But it is further objected that he was without authority to execute the power to sell and convey at the time he attempted to do so, being unclothed with the oath of office, and unarmed with letters 'testamentary. The objection is, however, founded in an entire misapprehension of the source from whence the authority is derived. It comes from the testator, and not from the register. It is derived from the will, and not from the probate of it; and it is consequently vested at the instant of the testator’s death. Probate has nought to do in conferring efficacy on a will of lands. Indeed where it clearly respects lands only, the rule in England is, it ought not to be proved in the spiritual court, and if there be a suit to compel probate, a prohibition lies. But if, as here, it concerns both lands and goods, it must be proved in the spiritual court, yet the probate will prejudice no one having an interest in realty, for it is not evidence of the will as to land. The ordinary has no jurisdiction of devises of lands, and therefore, properly speaking, there is no such thing as probate of devises before the ordinary. Of these the will itself is alone evidence, and it must be proved like other muniments of title. These are familiar principles, and enter into our system with a single -modification, springing from what Mr. Justice Kennedy thought to be a misapprehension of our act of 1705. That difference is that, in Pennsylvania, the probate of a will devising lands is primd facie evidence: Spangler v. Rambler, 4 S. & R. 193; Logan v. Watts, 5 S. & R. 213. But this is the extent of the departure. It gives to the party, procuring the probate the advantage of proof of'the first impression, but nothing beyond this. On the other hand, the refusal by a register to admit a will of lands to probate, or a verdict against its validity, on the trial of an issue demsavit vel non, concludes not the parties claiming under it, as is shown by Smith v. Bonsall, 5 R. 80; Lewis v. Pratt, 2 Wh. 81; and Rowland v. Evans, 6 Barr, 435. They are still at liberty to set it up as a conveyance, and to sustain it by common law proof of its execution. Now, as an executor derives his power to sell and convey the lands devised to be sold, solely from the will of his testator, and as this may be legally established, so far as it relates to the land, per testes in a common law court, it results that a valid disposition of the lands by an execution of the authority to sell, may be made by the executor, though the will be never offered for probate to the ordinary nor register. As, therefore, John Meetch was acting executor on the 16th of November, 1833, his conveyance, operating under the act of 1800, passed to his grantee, Smith, all the estate of the testator in premises.

This proposition is not answered by the suggestion that the patent from the commonwealth to the executor Meetch, and the administrators of Peter Williamson, vested an estate in the lands, in the devisees of the testator. The patent did nothing more than to convey the legal estate subject to the trusts of the will, leaving the relative right of the parties precisely as they were before.

Nor is there anything in the position that, as John Meetch, the executor, was, at the time of the conveyance to Smith, seised in his own right of a fee simple in a moiety of the land, his deed was effective for the conveyance of this moiety alone. Here the deed purports to convey the whole of the tract; and this, without more, would be sufficient to endow it with vigour as an execution of the power to sell, under the doctrines brought to view in Allison v. ICurtz, 2 W. 185. But besides, this deed contains a recital of the power created by the will, and expressly professes to convey, in pursuance of it, all the testator’s estate in the premises, thus leaving no ground even for cavil.

Another objection urged against the validity of the sale as an execution of the power, is, that it was not made within the time contemplated by the testator. But this is equally destitute of merit with the other objections. It is true, that equity will never aid the non-execution of a mere naked power, which it is optional with the party to execute or not. These powers are never imperative ; they leave the act to be done at the will of the party to whom they are given. But trusts are always imperative, and if it is to be effected by the .execution of a power, equity will never suffer it to fail from the negligence of the trustee, but will compel him to execute it: 16 Ves. 26. An instance of this is where a power is given by a will to trustees, to sell an estate and apply the' money on trusts: 2 Sugden on Powers, 174. So where, as in this instance, the proceeds of the sale are to be distributed in a particular way. Though, in such cases, a direction is given for the execution of the power within a limited period, it may be exercised after the lapse of that period, for the time does not enter into and make part of the power. Where the principal intent is to confer a benefit on cestui que trusts, a non-execution of the power within the time limited, shall not be suffered to defeat it. The execution of a power to sell after the time directed, is not like an attempted execution before the time prescribed, as was the case in Loomis v. McClintock, 10 W. 74. In the latter-case, the act of the party is void, for, until the time arrives for its execution, the power has no existence; but after it has sprung into life, where it is coupled with a trust or interest, it continues to exist until exercised.

What has been said, disposes of the whole case adversely to the plaintiffs, and shows that, in no form of action, can they recover the iand from the possession of the defendants. We might, therefore, stop here. But it may not be useless to express an opinion upon the other points made touching the competency of the present suit.

The familiar equitable rule that land directed to be changed into money, or money into land, is to be considered and treated as that species of property into which it is directed to be converted, although there be in fact no conversion, is not controverted: Allison v. Wilson, 13 S. & R. 332; Morrison v. Brenizer, 2 R. 185. Nor is it questioned, that, with us, since the act of 31st March, 1792, a mere direction to executors or other trustees, in a last will, to sell lands, breaks the descent and vests the legal estate in the executors. No interest in the land devised to he sold passes to the persons among whom the proceeds are to he distributed. They take, under the will, a mere chose in action, a claim strictly of a personal character: Allison v. Kurtz, 2 Watts, 185. But even before the act of 1792, the legal estate vested in the executor, where, by the devise, the power was coupled with an interest in the executor, as is the case here. The quantum of this interest makes no difference, for it has been held that an authority to lease is sufficient to redeem a power from the character of a mere naked authority to a stranger; Burr v. Sim, 1 Wh. 266; 2 Johns. C. Rep. 29. It is true, that where the whole beneficial interest in the land, or money directed to be converted, belongs to the person for whose use it is given, equity will permit him to elect to take in land or money, as the subject happens to be at the moment. But the right of election must be actually and unequivocally exercised, and the onus of showing the act of election, lies on the party alleging it. So where there are several interested in the subject-matter, all must agree to elect. An election by less than the whole number amounts to nothing. They cannot compel their associates to elect to take as land that which is bequeathed to them as money, or vice versd. As the executors cannot execute their power by halves, their business is to execute it entirely, or, with the consent of all parties, not at all. It is almost needless to say, the right to elect must be exercised before an actual conversion takes place, otherwise it is gone for ever. Every one of these principles makes against the plaintiffs* right to recover. The only manifestation of an intent to take tbe land, offered by tbem, is tbe bringing of this suit. But this is not joined in by all the parties interested in tbe fund, nor was it instituted until after actual conversion by the executor. It follows that tbe plaintiffs, as legatees, have but a claim upon tbe proceeds of tbe land in tbe bands of tbe surviving executor, to whom only they can look, for it is certain they have no lien on tbe land itself. By tbe act of sale and conveyance, it stands entirely free and discharged in tbe bands of tbe purchasers.

The charge of tbe court below being adverse to the view we have taken of tbe case, tbe judgment must be reversed; and, as our objections are radically destructive of tbe plaintiffs’ pretensions, a venire facias de novo will not be awarded.

It is unnecessary to consider tbe questions of evidence raised on tbe trial. These are entirely subordinate to tbe points already discussed and disposed of. ■

Judgment reversed.


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    Hughes v. Oliver.
    An action on the case for deceit is not harred by a certificate of discharge as a bankrupt: though the measure of damages were ascertainable by reference to a contract.
    Hence, where defendant, being indebted on a note, undertook to confess judgment thereon, and falsely represented that he had done so, and that it was a lien on land; and the plaintiff, relying on the representations, was thereby induced not to proceed for its recovery: the action for such deceit is not barred by the certificate.
    In error from tbe Common Pleas of Dauphin County.
    Case. Tbe first count averred in substanc.e, that .defendant borrowed of plaintiff $700, and gave her bis note, payable in one ■ year, with interest. That, in tbe same month, plaintiff delivered defendant tbe note, to be recorded as a judgment; that defendant returned tbe note, representing that be bad entered judgment thereon, which was a lien on certain real estate; that plaintiff was wholly unlearned, and reposed implicit confidence in defendant’s representations and tbe security of tbe debt, and, relying on tbe same, permitted defendant to retain tbe money for five years, without demanding payment or further security, when defendant became insolvent. That defendant did not enter tbe judgment: that the note was not a lien, but tbe representations were fraudulently made, to deceive plaintiff, and thereby induce her to allow defendant to retain the money; whereby, &c.
    Plea, not guilty, and certificate of discharge in bankruptcy.
    The instrument in question was dated in 1837, and contained a promise to pay, with an authority to enter judgment.
    The discharge as a bankrupt was in 1843.
    The jury found for the plaintiff on the first count, subject to the opinion of the court on the effect of the certificate.
    Eldred, P. J., on motion in arrest of judgment, entered it for defendant.
    McCormick, for plaintiff in error.
    The action is not founded on the contract, but is for damages arising out of the false representation ; a clear case of tort, and not contract converted into tort. As such, it is not within the words of the act, which are confined to debts ex contractu; nor have such causes of action ever been held to be discharged: 6 T. Rep. 695; Ed. on Bankruptcy, 34 Law Lib. 111.

      Parke and Fisher, contó.
    The real cause of action was for a breach of the contract to enter the judgment; and the form, whether tort or contract, should not be permitted to repeal the act which was intended to discharge all liabilities: Hatten v. Speyer, 1 Johns. 37.

      June 30.
   Rogers, J.

The rule, in cases of bankruptcy, in Dusar v. Murgatroyd, 1 W. C. C. Rep. 13, is said to be, that if the original ground of action is founded in contract, but the immediate cause arises ex delicto, and the claim is for damages unliquidated by express agreement or such as will not be implied, the certificate is not a bar, as such a claim could not have been set up under the commission. In Parker v. Norton, 6 T. Rep. 695, it is ruled that bankruptcy is no bar to any action of trover, though the conversion happened before the bankruptcy. When a person has his election either to bring trover or an action for money had and received, he may maintain the former, notwithstanding the bankruptcy of the debtor after cause of action accrued.

In Parker v. Norton, reference is made to the case of Goodtitle v. North, Doug. 583, which was an aotion of trespass for mesne profits, in which it was held that bankruptcy was no plea in bar. Lord Mansfield deemed the form of the action as decisive. The reasons of Lord Mansfield are denied to be valid in Hatten v. Speyer, 1 Johns. Rep. 41, and with great appearance of reason. But although that is given as one reason, it is not the principle on which the case is decided; for Justice Grose says: “ The question is not whether or not the plaintiff might have proved his debt under the defendant’s commission, but whether he was hound to do so, and if he were not, the certificate is no bar to the action. It is true,” he adds, “ what Lord Mansfield said, in the case of Goodtitle v. North, is decisive of the present case. But even without this authority, he would not consent that the whole system of the bankrupt laws should be converted into a system of fraud by the bankrupt himself. This is not a debt arising out of the contract of the parties, but if it be a debt at all, it arises out of the misconduct of the defendant.” And Lawrence, J., says it is not the object of the bankrupt laws to protect the bankrupt from the consequences of gross fraud.

Now, although I am disposed to agree with Justice Livingston, who delivered the opinion of the court in Hatten v. Speyer, that the form of the action alone is not decisive of the case, yet I cannot agree that Parker v. Norton is not well decided, and entitled to respect as an authority on this point. I cannot believe that where a party has been guilty of a wrong or a fraud, that it was the design of the statute to protect him from the consequences of it, merely because he may, if he thinks proper, waive the tort, and resort to an action as for money had and received. If a man takes the horse of another, and afterwards sells him, the owner may waive the tort, and recover tbe price in an action for money had and received; but is he bound to do so when possibly it may happen that it has been sold for half its value ? Would the owner be compelled to prove it a debt under the commission of bankruptcy ? It seems to me clear that he would not/ He may, it is true, but he is not compelled to do so.

That the certificate is no bar except for those debts or engagements which the debtor may prove before the commission, is an elementary principle. The law in relation to this subject is well summed up in Eden on Bankruptcy, 110. Where the right to damages at all, and also the amount of them, depend upon circumstances of which a jury alone can judge, and which therefore it requires the intervention of a jury to ascertain, such damages are not susceptible of proof under a commission. But in cases where, although the usual form of - action which a creditor would have for' his demand, may be one in which he would recover it in the shape of damages to be given by a jury; or though, perhaps, in some instances lie could have no other kind of action; yet, if his demand is of such a nature as admits of being liquidated and ascertained at the time of the bankruptcy, so that he can swear to the amount, he will be entitled to prove.

Thus, a demand for goods sold, or for work and labour, without any agreement as to the price which the party should recover at law, as damages in an assumpsit, or a quantum meruit, may be proved, because the value can be easily ascertained, and the creditor can swear to the amount. So when the demand is of a mixed nature, and the creditor may claim either as founded on contract or as for a tort, he may make his election, and will be entitled to prove or not, accordingly. Thus, in ease of selling goods, under an execution which is afterwards set aside: Utterson v. Vernon, 3 T. Rep. 548; of not delivering goods according to agreement, which had been paid for: Doug. 546, 548; of discounting a bill at a loss, before it was due; and of embezzling the money by one to whom it had been delivered only for- the purpose of receiving the money when due, and remitting it when received: Parker v. Norton, 6 T. Rep. 695; or of pledging a debenture for a debt of his own, by one with whom it had been deposited by another person, only as collateral security. If the party goes for the tortious taking, damages arising in such cases respectively, as for the keeping him out of his goods, and selling them under the said execution, from the fall of the market, in the case of the goods not delivered according to agreement; from the breach of trust, and the loss in discounting the bills; or for keeping him out of the debenture, he cannot prove, because the damages are uncertain-and contingent. But, in such cases, he may make his election. And if, waiving the tort, he demands only the money for which the goods were sold under the execution; the money paid for the goods agreed to be delivered; the sum actually received for discounting the bill; or which was paid in order to redeem the debenture, he will be permitted to prove; for then the demand may be ascertained, and he may swear to the amount. And so it would seem, in the case of money remaining in hand and embezzled, by an officer, in the sale of goods under a distress: Ex parte Dobson, 7 Vin. 74. So in equity, if a plaintiff might have proceeded at law, for that which he demands by his bill, either by an action for the assumpsit or an action for the tort, the bill may be demurred to, if it be in the nature of an action for the tort; but if it be in the nature of an action of assumpsit, the defendant may plead his bankruptcy and certificate: De Faste v. Welden, Buck. 153; 3 Mod. 51.

Neither torts nor frauds are within the bankrupt act, nor should* they be, because the act is intended for the benefit of the honest, and not the dishonest debtor. I can very readily perceive the reason that a creditor whose demand is of such a nature as admits of being liquidated and ascertained at the time of the bankruptcy, so that he can swear to the amount, shall be entitled to prove, and thereby entitle himself to a share of the assets; but I cannot comprehend the reason and justice of compelling him to do so in favour of either a tort-feasor, or a person guilty of a fraud.

These are the principles on which the current of cases are grounded, unshaken, except by a solitary case, decided, as I think, on a mistaken principle of humanity, at war with the whole policy of the bankrupt law. It cannot, I agree, depend on the mere form of the action. It must have substance in it, as in a case of tort or fraud. If the original ground of action is founded in contract, but the immediate cause arises ex delicto, and the claim is for damages unliquidated by express agreement, or such as will not be implied, the certificate is not a bar, as such a claim could not be set up under the commission.

Now let us apply these rules to the case in hand. The defendant, Hughes, borrowed of the plaintiff, who was an ignorant and unlettered woman, $700, for which he gave his single bill, payable two years after date, with warrant of attorney to confess judgment. This note was afterwards delivered by the defendant to the plaintiff for the purpose of being entered, which he promised to do. He afterwards returned the note to the plaintiff, and represented to her that he had confessed the judgment, and had the same recorded, and that it was a lien on a brick house in the borough of Harrisburg.* The plaintiff being ignorant and unlearned, and placing confidence in his representations, allowed the defendant to keep the money without requiring payment or further security, for the space of five years, when the defendant became insolvent, whereby she lost her debt. For this fraud the plaintiff brought an action on the case, in the nature of a writ of deceit, and the jury found in favour of the plaintiff, thereby affirming the allegations in the declaration, referring it to the court, to determine on these facts, whether the certificate of bankruptcy was a bar to the action. It cannot be denied that this is a tort which is not proveable under the commission; the act extending only to debts, demands, or engagements which are liquidated, or may be so, without the intervention of the jury. The damages are uncertain, and depend on circumstances of which only a jury can judge: as, for example, the 'value of the real property, on which the judgment would, if entered, have been a lien, and other matters independent of the amount of the debt. Undoubtedly the debt would not have been the only criterion by which they might have estimated the damages. The parties would have a right to apply to a jury to ascertain what is due for damages for the deceit. And on suit, or appeal, the jury will have an opportunity of inquiring into all the circumstances of the ease: they may see reason not to give damages to the full extent of the debt. But it is contended that this suit originated in contract; that the debt was liquidated and ascertained, and may have been proved under the commission. I grant she might have waived the tort, had she chosen to have done so, but that a person is compelled to waive a tort or a fraud I utterly deny. In this I am supported by the cases cited.

This is an action of deceit, a cause of action distinct and independent of the debt; the debt is merely inducement to it. Indeed, the action for the deceit accrued after the debt was created. It is a stronger case than Dusar v. Murgatroyd, 1 W. C. C. Rep. 13, on this account. Nor is it under the circumstances altogether clear to my mind, that if she had proved the debt, she would have been debarred from this suit, or that the certificate would be a bar. As, for example, if she had proved her debt and had received fifty cents on the dollar, she would have had a right to sustain this action and recoYer the difference, because the action of deceit is distinct and independent of the debt. But be this as it may, she. refused to prove her debt, and, consequently, there is no room for the argument that she waived the tort. Under these circumstances, we are of the opinion that the certificate is no bar, and that the plaintiff is entitled to judgment.

Judgment reversed, and judgment for plaintiff.


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    Stanley’s Appeal.
    A release by a ward within four months after coming of age, and a subsequent confirmation of the guardianship account and payment of the balance, are no bar to a bill of review to charge the executors of the guardian with an item omitted from the account.
    A fund was bequeathed to A. in trust, to invest and pay the interest to B. for life, and at ter deatt, tte principal equally between C., of whom A. was also appointed guardian, and D. In case of A.’s deatt before tte complete execution of tte trust, tte will appointed anotter person trustee and guardian. On tte death of B., tte stare of tte fund to whict C. is entitled is told by A. as guardian, and he must account for it to tte ward.
    Investment in bank-stock by a trustee in his own name, though he is expressly authorized to invest in such stock, renders him personally liable for tte amount invested.
    Appeal from tbe Orphans’ Court of Dauphin county.
    This was a petition of review, in the Orphans’ Court, to open and surcharge an account settled by a deceased guardian. The petition set forth that in 1825 General Stanley, the guardian of the petitioner, had received $400 from her father’s estate, pursuant to the directions of the will, which sum was omitted from the account settled by him as guardian.
    The defendants, executors of Stanley, set up that the money so received had been invested in certain bank-stock, pursuant to the directions of the will, which the executors had sold, believing it best for all concerned; and they offered to pay over the proceeds of the sale, or to purchase so many shares of the same stock as would at the par value be equal to the sum so received.
    They further set up a settlement of the guardianship accounts, October 7, 1843, after petitioner attained her majority, which was confirmed by the court; and a release by her, reciting payment in full of the amount received by him. The petitioner replied that the release was obtained from her within four months after she came of age; and that she iras not informed of the receipt of this fund until some time afterwards, when a receipt for it Avas discovered among the papers of her father’s executors. And it was proved that the release was executed shortly after the account was filed, and before confirmation by the court.
    It appeared from the auditor’s report, that, by the will of petitioner’s father, $400 was directed to be paid to Stanley, who was also appointed guardian of the petitioner, to be invested in mortgage security or bank-stock, the interest to be paid to testator’s mother for life, and then to pass with the residuum, which Avas bequeathed equally to the petitioner and testator’s widow.
    This sum was paid by the executor to Stanley in 1825. In April, 1839, he purchased thirty shares of Schuykill Bank stock, in Ms own name, at a price above $50 per share. But there was no stock purchased or held by him as trustee. In 1839 the bank became insolvent, and the shares inventoried as part of his estate were sold by his executors, June 20th, 1845, at $7.75 per share. Stanley, the guardian, died on the 15th June, 1844. In February, 1845, the petitioner wrote to his executors, requesting information respecting the affairs of her uncle, and that' the certificates of Schuylkill Bank stock should be forwarded to her. She added, that this stock had been purchased with the money above referred to. The auditor further reported that it did not appear when she was informed this investment had been made, whether' before or after the failure of the bank. That, under the circumstances, the investment was not made in such a manner as to bind the parties interested, and he therefore charged the executors with the shares of the $400 due to the ward, with interest from the death of the legatee, for life.
    In the auditor’s report there was nothing said respecting the release, &c. The case, therefore, seemed to stand upon the naked facts of a release, shortly after the ward attaining majority, before decree; payment of the balance of the account as settled; and the acknowledged omission of the amount from the guardianship account.
    A question was raised in this court as to the form of the proceeding.
    Testator, by his will, directed the investment of this fund; that if Stanley died before the trusts vested in him were fully executed, McOaumon should be guardian of his daughter and trustee of the fund; and in the event of his death, the Orphans’ Court of Chester county should appoint a person in his place, with like authority.
    But it was proved that Stanley survived the legatee for life, upwards of three years.
    Alricks, for the appellants.
    The fund being in the hands of Stanley as trustee, he was liable to account only to the trustee to be appointed under the will. As this proceeding did not affect the other cestui que trust, his estate will still be liable to such a proceeding.
    But the case is within the saving clause of the act of 1840, for the balance of the account was paid over, and there was a release executed: 6 W. 159; 2 Barr, 432.
    The court declined hearing Karris, contrfi.

      July 3.
   Gibson, C. J.

The ward’s release, executed as it was within less than four months after she had attained the age of twenty-one, is to be laid out of the case. It has often been ruled, and particularly in Lukens’s Appeal, 7 W. & S. 48, that releases given in the dark, and before emancipation from habits of confidence and control, are to be disregarded. And the rule is not only a wholesome, but an indispensable one. I have never known such a release to be set up for any other purpose than to shield the guardian from an investigation that would disclose something which it was his interest to conceal; and for the very reason that if justice had been on his side, he would not have needed it. It may be properly used when vouchers have been lost by lapse of time, but not to cover up recent transactions, except where it is pleaded by an executor who is bound to set it up for what it is worth. How then does the case stand on its merits ?

That General Stanley received $400 from the executors, in trust to apply the interest to the maintenance of the testator’s widow, and to pay the principal to the residuary legatees at her death; and that he did not charge himself with his ward’s portion of it in his guardianship account, are facts which are admitted in the answer to the bill. But it is insisted that, as the money was in his hands, not as a guardian, but as a trustee, it was not a proper subject of the guardianship account. The parties ultimately entitled to the fund, however, might waive the benefit of a trustee account, and, the trust being executed, treat him as the primd facie holder of the whole sum. Strictly speaking, none but the executor or administrator of the cestui que trust, could make him show how he had discharged his stewardship. For what purpose but. to bur-then the fund with costs and charges, settle such an account ? A sum of money had been put into his hands to maintain the widow with the interest of it, and the presumption is that the principal was undiminished at her death; but if any part of it had been lost by any other means than his own mismanagement, it was his business, unasked, to settle an account as a trustee, in order to give the residuary legatees an opportunity to contest the’matter with him in open court. Having thought proper to do otherwise, he surely cannot set up his own default as a bar to the complainant’s bill to charge him in his guardianship account, in which due allowances may be made him with equal convenience and effect. In Jacobs v. Bull, 1 Watts, 370, it was held, in substance, that money shall be taken to be in the hands of an executor or trustee, where the offices are concurrent, in the one character or the other, as may better serve the purposes of justice.

The fund was invested in shares of Schuylkill Bank stock purchased and standing in the guardian’s name, which have greatly fallen in value; yet the appellant insists that the ward shall take them in specie at the price paid for them. If the guardian thought they were the property of the ward, it is singular that he said nothing about them when he paid her the balance due on the guardianship account and took a release from all further responsibility. His silence on that head leads to a conclusion that he viewed them as his own; and if they were so then, they are a part of his estate now. But whether he did so or not, it is conclusive that he purchased them in his own name. The fact that he retained the power to make them his own, if the investment should prove to be a valuable one, estops his executor from denying that he purchased them in his own right. This elementary principle — applicable to every investment by a trustee — is essentially that which forbids him to place trust-money in the hands of a banker in his own name, except at the risk of the banker’s insolvency, or in any other way to confound it with his own; and it was this that ruled the case of Lukens’s Appeal, in which the ward had not only released the guardian, but had actually received a transfer of the depreciated stock at the price the guardian had paid for it, who, nevertheless, was held to make the difference good. That is a stronger case than the present, besides being an authority to show that the request of the ward to have the certificates transmitted to her, is not a circumstance to conclude her. She had been left in ignorance of the state of her property in her guardian’s hands; and the very letter which contained that request, contained another for information. In this state of ignorance and doubt, nothing said by her would bind her. Perhaps even an agreement to take the shares, without a subsequent consideration to found it, might be rescinded by her before execution of it. There has been no delay in the prosecution of her claim; and she asks no more than to exercise her undoubted right, to receive a transfer of the shares, or surcharge the guardianship account at her election. She has chosen to do the latter, and we have neither the power nor the will to prevent her.

Decree affirmed.