text:
    The Reading Industrial Manufacturing Co. et al. versus Graeff.
    1. Parties in a cause may agree that the facts shall he found and reported by a third person mutually chosen, or selected by the court with their approbation, instead of agreeing to a case stated.
    2. The facts found may be considered incorporated in the agreement as if originally introduced.
    3. 'The authority for the court to enter judgment is implied, although not expressly mentioned.
    4. The Act of June 16th 1836, sect. 3 (Arbitration), confers such authority.
    5. In a pending suit, it is not necessary in a reference under the 3d sect, of Act of 1836, to agree that it should be made a rule of court.
    6. Such consent will be implied when it appears to be the intent; a reference to the pending action will make it such in the absence of a contradictory provision.
    7. A reference to one is as good as a reference to several.
    8. A merchant, upon orders of a manufacturing company, under the Act of April 1849, furnished provisions, &c., mentioned in the 2d sect, of the Act of 1854 (a supplement), to the hands of the company, and by arrange ment the company took up the orders monthly by giving their notes. Held, this was within the 2d section and the stockholders were liable.
    9. The mode adopted was for the convenience of the company and did not change the nature' of the contract.
    10. The orders were in the ordinary course of the cofhpany’s business, and not contrary to the Act of April 21st 1849, restraining corporations from issuing obligations not redeemable in coin, &c.
    11. A party to a contract in violation of a statute, although the prohibition be only under a penalty, cannot recover against the other party even if he have received a full consideration.
    March 8th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Bead, J., at Nisi Prius.
    Error to the Court of Common Pleas of Berks county: No. 47, to July Term 1869.
    This was an action of debt, by Moses K. Graeff against The’ Beading Industrial Manufacturing Company, Jeremiah Miller and others, stockholders in the company. The writ was issued August 3d 1861.
    The company had been organized in November 1857, under the General Manufacturing Law of April 7th 1849, Pamph. L. 563, Purd. 689, and its supplements, one of which was passed March 27th 1854. By the 2d section of that act, Pamph. L. 215, Purd, 694, pl. 32, it is provided that “ the stockholders * * * shall be jointly and severally liable in their individual capacities, only for debts due to miners, quarrymen and other laborers, employed by such companies, and for machinery, provisions, merchandise, country* produce, and materials furnished for said companies respectively,” &c. The action was brought under this section on notes given by the company to the plaintiff. - After some progress had been made in the trial, the jury was discharged, and the following order was made by the court:—
    “ Edward E. Pearson, Esq., is appointed commissioner to take testimony in this case, to ascertain and report facts, and state the account between Moses K. Graeff, the plaintiff, and the Reading Industrial Manufacturing Company. The whole evidence submitted to the commissioner, to be by him reported to the court, is rendered necessary, by the nature, and circumstances of the case, arid is expressly assented to by the counsel for the parties. And by express agreement of the parties, the rights of either and any party to a review of the record, by writ of error, from the Supreme Court, for any cause of error which could be alleged, if the trial of the facts were had before a jury, is fully reserved. The report of the commissioner shall he subject to all legal objections to the competency of witnesses and the legality of the evidence.
    “The commissioner in his report is required to specify the different classes of indebtedness of the said company to the plaintiff, and to state the general nature of the transactions on which each class of indebtedness shall appear to have been founded. The fees of the commissioner and the costs accruing before Mm, to abide the event of the suit.”
    Aug. S. Sassaman, Esq., was afterwards appointed commissioner in place of Mr. Pearson.
    The commissioner reported the facts in detail; and referring to the orders, &c., he also reported: * * *
    “ After this company got under way, they dealt with Moses K. Graeff, who kept a country store near their works. They arranged with him to give to their hands such of the necessaries of life as they should require upon the presentation of the company’s orders, which was accordingly done. The orders were always kept to the end of the month, when they were settled for and notes given for them, which were to be in full satisfaction for the articles of merchandise furnished to the hands, when they were paid. All the receipts given in the receipt book of the company by Graeff, upon the reception of notes for the orders were precisely of this form. The orders were all payable in merchandise and were so paid by Graeff. There were no orders produced before your commissioner, except those for April 1860. It is said in the testimony that these were the only orders in the possession of Graeff, the others having all been returned to the company, and their place supplied by notes given and receipts for those notes according to the form of notes before the commissioner. * * * It is quite clear as a fact, that orders were given for the whole period, as alleged, for flour and merchandise, and that Moses *K. Graeff filled them during all this time. * * * According to the evidence offered from the books by the plaintiff, the whole amount of merchandise sold and not balanced on the book from April 1st 1859 to April 21st 1860, inclusive, is . . $5031.01
    The amount for flour orders filled during February and March 1860, is ...... 394.87
    Altogether, ....... $5425.88
    “ This is the state of the account without calculating any interest of the amounts as they appear upon the book added at "the end of each month.
    “ It is alleged by the plaintiff, that for these monthly amounts there were notes given at the end of each month, payable respectively in sixty days and in four months, the amounts each month being divided into halves. This is sustained by the testimony of witnesses, and the notes.”
    The commissioner then gives a statement of the notes, with costs of protest and interest, amounting in the whole to $7072.11.
    He then proceeds: “ They all were in satisfaction and payment of merchandise and flour orders when paid. Note No. 11 is no.t signed in the same way as the other notes; but this note was given in renewal of another note or notes, previously given by the Industrial Manufacturing Company to Moses K. Graeff for merchandise furnished to operatives.

      “ It will be observed that the above statement does not include the April orders of 1860, for which no note was given. * * *
    On the amount of the month, to wit: on $488.65 I have allowed six months’ credit and added the interest $192.03 up to June 24th 1867, making the sum of . . . .' $680.68
    Add to this the amount of notes to same date . 7072.18
    Whole amount of indebtedness . . . $7752.86
    * * * “ The notes presented to the commissioner and which are in evidence, are given for the balances; in fact, they nearly all correspond with the very figures of the books. Those which the witnesses say are renewals, are the only ones that differ from the books materially. These notes do not correspond with the orders per month on the store of Mr. Graeff. But in all these cases the company has charges against him which are deducted before the notes .have been given.
    * * * “ The commissioner understanding it to be his duty only to present this case to the court as it is presented before him, having nothing to do by way of argument or decision, offers this to the court as the result of his appointment.”
    The report of the commissioner was accompanied with all the oral testimony heard by him, together with copies of all the book entries, statements of orders, and other documents produced before him.
    January 18th 1868, a rule was granted to show cause why judgment should not be entered in favor of plaintiff upon the report of the commissioner. December 7th 1868, the rule was made absolute “and judgment entered in favor of the plaintiff for $7752.86, with interest from the 24th day of June 1867, to this day, on the principal of the notes and orders ascertained in the commissioner’s report. The prothonotary will make the calculation and enter judgment as of this day for aggregate amount. Same day judgment entered in favor of the plaintiff for $8433.50, the amount having been ascertained by the prothonotary.”
    April 8th 18,69, the court granted a rule to show cause why the judgment entered in this case shall not be stricken off for want of power in the court to enter any judgment on the report of the commissioner. April 24th 1869, the court (W. J. Woodward, J.) discharged the rule.
    The defendants removed the case to the Supreme Court, and assigned for error :—
    1. Entering judgment for the plaintiff below.
    2. Entering judgment on the report of the commissioner, the facts being insufficient to warrant such judgment, especially as the report does not find and state whether the arrangement made with the plaintiff below and the orders given and sales made in pursuance of it, were in the ordinary course of business or not.
    3. Refusing to strike off the judgment on motion of the counsel of the defendants below, for want of power in the court to enter the same on the report of the commissioner.

      T. IS. Franklin (with whom were S. Maltzberger, W. P. Baird and J. S. IAvingood), for plaintiffs in error.
    — The first question is, had the court power to direct a reference and appoint a commissioner, with the duties assigned, in this case: Cook v. Shrauder, 1 Casey 314. The Act of 16th June 1836, § 3, Pamph. L. 718, Purd. 51, pl. 3, gives the parties in a suit a right to consent to a rule of court to refer all matters in controversy in such suit to referees, with a reservation of the matters of law for the disposition of the court, and the report of such referees, setting forth the facts found by them, shall have the same effect as a special verdict upon which judgment can be entered. Here was simply a report of testimony to the court. No Act of Assembly gives power to the court to appoint a referee or commissioner, under the circumstances, for any other purpose, than, with consent, to find and report facts.
    2. There is an insufficiency of facts found: Diehl v. Ihrie, 3 Wharton 148; Berks County v. Pile, 6 Harris 497; Holmes v. Wallace, 10 Wright 267; Kinsley v. Coyle, 8 P. F. Smith 462; Cook v. Shrauder, 1 Casey 312; Whitesides v. Russell, 8 W. & S. 47; Johnson v. Fritz, 8 Wright 452.
    The debt against the corporation is not one upon which a recovery can be had against the stockholders personally: Act of 27th April 1854. In Mansfield Iron Works v. Willcox, 2 P. F. Smith 377, the merchandise was sold and delivered by the plaintiff to the company, and afterwards sold by the company to its operatives. The arrangement was illegal by sect. 1, Act of 21st April 1849, to restrain corporations from issuing obligations redeemable otherwise than in gold or silver, or in current bank notes: Pamph. L. 673, Purd. 201, p. 50; Eberman v. Reitzel, 1 W. & S. 181; Smith v. White, 1 Law Rep. Eq. Cases 625; Cannan v. Bryce, 3 B. & Ad. 179; Pearce v. Brooks, 1 Law Rep. Exch. Cases 213; Ritchie v. Smith, 6 M., G. & Scott 462; Wheeler v. Russell, 17 Mass. 258; 2 Kent’s Com. § 466. Act of March 22d 1817, § 2, 6 Sm. L. 441, Purd. 94, pl. 59, prohibits the issuing by a corporation, except a bank, for circulation any notes, &c. The Act of April 21st 1849 was for the protection of laborers ; such laws are to be construed in their favor: Catlin v. Ensign, 5 Casey 264; Firmstone v. Mack, 13 Wright 387; Smith on Master and Servant 23.
    March 21st 1870,

      B. F. Boyer, for defendant in error.
    — The defendants had a right to agree, and after contesting before commissioner and court they cannot object: Henneigh v. Kramer, 14 Wright 520 ; Brooke v. Bannon, 3 W. & S. 382; Christman v. Moran, 9 Barr 487; Browning v. McManus, 1 Whart. 177; Graham v. Graham, 2 Jones 128; Mitchell v. Wilhelm, 6 Watts 259; Bemus v. Clark, 5 Casey 251; Gallup v. Reynolds, 8 Watts 425; McAdams v. Stillwell, 1 Harris 90; Wall v. Fife, 1 Wright 394; Hughes v. Peaselee, 14 Id. 257; Millar v. Creswell, 3 Barr 449. If the issuing of the orders was illegal it was the company’s own wrong, and a fraud upon the plaintiff, and they cannot now set it up to defeat a recovery against them: Camp v. Puloer, 5 Barb. 91; De Groff v. Amer. Linen Thread Co., 35 Id. 375; Moss v. Rossie Lead Mining Co., 5 Hill 137; Nellis v. Clark, 4 Id. 424; Mosly v. Mosly, 15 N. Y. 334; Gray v. Hook, 4 Id. 449; Westfall v. Jones, 23 Barb. 9; Barton v. Plank Road, 17 Id. 379; Hooker v. Vandewater, 4 Denio 349; Lestapies v. Ingraham, 5 Barr 81. These notes were security, not loans: Utica Ins. Co. v. Scott, 19 Johns. 77; Moss v. McCullough, 7 Hill 290; Spear v. Crawford, 41 Wend. 20; Stey v. Brown, 20 Johns. 66; Harger v. McCullough, 2 Denio 119; Allen v. Sewall, 2 Wend. 327; Baily v. Bancker, 3 Hill 188; Young v. Beardsly, 11 Paige 93.
   The opinion of the court was delivered,

by Sharswood, J.

— It is necessary to determine as preliminary to the consideration of the principal questions which arise upon this record, whether the court below had power to enter judgment upon the report of the commissioner. He was appointed “to take testimony in this cause, to ascertain and report facts, and to state the account between Moses K. Graeff, the plaintiff, and the Reading Industrial Manufacturing Company. The whole evidence submitted to the commissioner to be by him reported to the court. This reference, in the judgment of the court, is rendered necessary by the nature and circumstances of the cause, and is expressly assented to by the counsel for the parties.” It is not easy to comprehend why the parties to a cause pending in court by their attorneys, instead of agreeing to a case stated in the nature of a special verdict, may not consent that the facts shall be found and reported by some third person mutually chosen or selected by the court with their approbation. Verba illata inesse videntur. The facts found may well be considered as incorporated with the agreement as if they had been originally inserted. It is true, there was here no express consent that the court should enter judgment on the report, but it was necessarily implied. The whole proceeding would have been nugatory without it. What is added confirms this necessary implication: “ And by express agreement of the parties, the right of either and any party to a review of the record by writ of error from the Supreme Court, for any cause of error which could be alleged, if the trial of the facts were had before a jury, is fully reserved.” The gentlemen who made this agreement certainly knew that nothing but a final judgment was the subject of a writ of error from the Supreme Court.

But if there was any doubt of the power of the court under such agreement, it is removed by the 3d section of the Act of Assembly relating to reference and arbitration, passed June 16th 1836, Pamph. L. 715. That act makes it' lawful for the parties to consent to a rule of court for referring all matters of fact in controversy to referees, “reserving all matters of law arising thereupon for the decision of the court; and the report of such referees, setting forth the facts found by them, shall have the same effect'as a special verdict, and the court shall and may proceed thereupon in like manner as upon a special verdict, and either party may have a writ of error to the judgment entered thereupon, as in the case of a judgment entered upon special verdict.” Here was clearly a consent to a rule of court, and such a rule actually made and entered of record, which satisfies all the formal requisitions of the act: Benjamin v. Benjamin, 5 W. & S. 562; Millar v. Criswell, 3 Barr 449. But in truth it is not necessary in the case of a pending suit that there should be-an agreement to make it a rule. Such consent will be implied whenever the intent of the parties is apparent, and a simple reference to the pending action will make it so in the absence of a contradictory provision: McAdams’s Ex’rs. v. Stilwell, 1 Harris 90; Buckman v. Davis, 4 Casey 211. It cannot be pretended that a reference to one is not as good as a reference to several, though the word is used in the section in the plural, but it is “ referees as aforesaid,” and the 1st section to which only “ aforesaid” relates, provides expressly for a submission “to the award or umpirage of any person or persons.” Considering the commissioner as a referee, there was therefore full power in the court to enter such a judgment upon it as the case warranted.

The merits of the controversy, upon the facts as reported by the commissioner or referees, depend upon two questions only, and those fortunately of simple and easy solution, requiring neither argument nor research.

The first is, whether the claim of the plaintiff below is within the provisions of the 2d section of the Act of Assembly of March 27th 1854, Pamph. L. 215. That section declares “ that the stockholders in all companies incorporated in pursuance of the provisions of the act to which this is a supplement, and the .several supplements thereto, including this act, shall hereafter be jointly and severally liable in their individual capacities, only for debts due to miners, quarrymen and other laborers employed by such companies, and for machinery, provisions, merchandise, country produce and materials furnished for said companies respectively, to be enforced and collected in the manner provided for in the act to which this is a supplement.”

It is contended that this provision applies only to a sale in the course of the ordinary business of the corporation, and not to a special contract or arrangement such as the commissioner reports to have existed in this case. In Weiss v. The Mauch Chunk Iron Company, 8 P. F. Smith 295, a firm agreed to transfer all their effects at an appraised valuation to compose the capital stock of a manufacturing company, when it should be formed, and to subscribe for its stock to the amount of the appraisement, the company issuing the stock therefor. Upon the allegation that the company had refused to issue the stock, the firm brought an action against the corporation for the appraisement, claiming to make the stockholders individually liable under this section. It was held that the act evidently contemplated an ordinary sale and delivery to the company in the course of its usual business, and had no application to such a contract as was the foundation of the suit in that case. The contract here, however, was entirely different. On the facts reported by the commissioner, we think that the claim of the plaintiff below was for provisions and country produce sold and delivered by him to the company in the usual course of their business. The mode adopted for transacting it was for the convenience of the company and did not change the nature of the contract. By a special arrangement with the plaintiff they paid their workmen and employees with orders drawn upon him for such goods, which he delivered to the workmen. Had it been reversed, and the plaintiff sold and delivered directly to the company, and they then paid their workmen with the goods it would evidently have been the same thing.

But the most serious contention has been that this arrangement between Graeff and the corporation was in violation of the provisions of the Act of Assembly, passed April 21st 1849, Pamph. L. 678, entitled “An Act to restrain corporations from issuing obligations redeemable otherwise than in gold and silver or in current bank notes.” It declares that it shall not be lawful for any corporation to issue “ any certificate, check, order or due-bill or acknowledgment of indebtedness of any description for any purpose whatsoever, payable or redeemable in any goods, property or effects, or payable or redeemable in anything except in gold and silver:” — with a proviso that the section “shall not be construed so as to prevent any corporation from drawing orders in the ordinary course of business, not intended for circulation or in payment of interest, and that such orders shall not be negotiable.” It may be conceded as a general and well established rule of law that a party to a contract in violation of a statute, even if the prohibition only be under a penalty, cannot recover against the other party though in pari delicto, and though such party may have received the full consideration — however ungracious and abhorrent to our sense of justice such a defence may be. The rule is one of policy and only to be vindicated on that ground. It is unnecessary to inquire whether it is applicable under this Act of Assembly, as we are clearly of opinion that the orders issued in this case were “ in the ordinary course of business, not intended for circulation,” and therefore within the saving of the proviso. The act declares that such orders shall not be negotiable —an unnecessary provision; for an order, payable in goods, is clearly not so on general principles: Fahnestock v. Schoyer, 9 Watts 102. The orders issued or to be issued under the arrangement between Graeff and the corporation were of this character. “They arranged with him,” says the commissioner, “to give to their hands such of the necessaries of life as they should require upon the presentation of the company’s orders, which was accordingly done.” This disposes of all the errors assigned.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The Directors of the Poor, &c., of Bucks County versus Dungan.
    1. D. was convicted of fornication and bastardy, and sentenced to pay 75 cents per week for the child’s support until it arrived at 7 years, &o. He could be discharged only upon compliance with this order: per Chapman, P. J.

      2. The order did not impose the obligation to support the child, coupled with the right to its custody : Id.

    3. Until the child became a public charge, the directors would have no right to take it from its mother: Id.

    4. No responsibility rests on a putative father beyond the consequences of the conviction, and no reciprocal right springs from the duty imposed on him by the law: Id.

    5. D. claimed the custody of the child and offered to maintain it. The directors refused to allow the custody to him. Held, that he was not relieved from liability on his bond to indemnify the county ¡ Id.

    March 8th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Bucks county: No. 329, to January Term 1870.
    This was ah amicable action and ease stated, in which the Directors of the Poor, &c., of the county of Bucks were plaintiffs, and Thomas B. Dungan and Thomas Dungan, defendants.
    The facts agreed on were as follows:—
    At the April sessions 1864, Thomas B. Dungan, one of the defendants, was convicted of fornication and begetting a male bastard child, which was born in the month of February 1864; the usual sentence was passed upon him by the court; the said Thomas B. Dungan has paid all the costs of said prosecution, and the lying-in expenses, &c.,- but refused to pay the seventy-five cents a week for the support and maintenance of said bastard child. In the month of April 1864, a relieving order was granted by Henry Albright, Esq., a justice of the peace, and said child became a charge on the county. The child being too young to remove to the alms-house, the directors ordered, that the sum of seventy-five cents a week be paid to the mother, and directed that it remain with her until further orders. On the 21st day of May 1867, the said Thomas B. Dungan presented his petition to the directors, &e., setting forth that he was married and had no child or children, and was desirous of taking and adopting said child, and-of supporting, educating and maintaining the same; and that he was willing and did pay all charges up to that time, to wit, the 21st day of May 1867. The directors refused to deliver said child to him, believing that the child was too young to be taken away from its mother; that he was not a proper person to have charge of said child, and that they had no power to deliver it to his custody.
    If the court be of opinion that the offer of the said Thomas B. Dungan, as contained in his petition, discharged him and his surety Thomas Dungan, from all liability on his bond, given to the directors to indemnify the county, &c., then judgment to be entered in favor of the defendants, but if not, then judgment to be entered for the plaintiffs.

      The opinion of the court below was delivered by Chapman, P. J., as follows:—
    “ At the April sessions of the Court of Quarter Sessions for Bucks county, Thomas B. Dungan was convicted of fornication and bastardy, in begetting a male bastard child on the body of Catharine Ann Cope. He was sentenced to pay a fine, the lying-in expenses, and the sum of seventy-five cents a week, to be computed from --February 1864, for each and every week until the child should be seven years old, and to give bond and security for the performance of the order, and stand committed until complied with.
    “ The fine, costs and lying-in expenses were paid, and a bond with surety was given to the directors of the poor for the fulfilment of the order, but on his failure to perform it the child became a public charge. Whereupon the directors arranged with the mother to keep and maintain it for the sum of seventy-five cents per week. At a subsequent period, Thomas B. Dungan applied to them to be allowed to have the custody of the child, and proposed to educate and maintain it, and indemnify the county against further expense on its account, which application was declined by them. It is now contended that he and the surety in the bond are released from the obligation thereof.
    “ Whether they are or not, is the question to be decided.

      “ The bond was given in compliance with the sentence of the court, which was, that he should pay the sum of seventy-five cents per week for the support of the child until it should arrive at the age of seven years. It is only by a compliance with this order that he can be discharged. The sentence admitted of no such qualification as is now invoked in his behalf. It did not impose the obligation to support the child, coupled with the right to its custody; and yet, this is the condition upon which he- asks the directors to take a new bond. Had a bond with such a stipulation been taken in the first place, whether it would have been valid or not, it is certain it would not have been in conformity with the sentence, for until the child had become a public charge, the directors would have had no right to take it from the custody of the mother.
    “ It having become a public charge by his default, and the condition of the bond being broken, and the sentence of the court disobeyed, what claim has he to demand a new contract and impose new terms ? He does not propose to satisfy the condition of the bond by payment or a deposit of a sum equivalent to the requirements of the sentence, but merely to make a new arrangement. Now, clearly it is not for him to dictate the terms of his responsibility, they have already been fixed by the judgment of the court. Although the putative father, no responsibility rests on him beyond the consequences of his conviction, and that is but for a limited period. The child is nullius filius. A duty has been imposed upon him by law, which he is to perform sub modo, and no reciprocal right springs out of such duty. This being so, having none as father, he is without remedy. The sentence of the court was inflicted upon him as a punishment and with a view to indemnification; neither it nor the conviction gave him any right of control, nor did either give the child any rights beyond what are specified.
    May 5th 1870,
    “ But even supposing this child were legitimate, and had, by the omission of the father to provide for its support, become a public charge, it may be well questioned whether, viewed as a matter of abstract right, the father could take the child from the custody of the directors. They being the legal guardians of the poor, they might, it seems to me, retain it unless remanded by the court into the custody of the father — and even then it would be in the discretion of the court to make such order as might comport with the welfare of the child.
    “We think it very clear that, as the defendant has, by his own default, allowed the child to be subjected to the guardianship of the directors of the poor, he cannot force them to surrender their control by the offer of terms upon which he will support it, not prescribed by the sentence of the court, nor embraced by the condition of the bond. If he cannot thus be relieved, it is not perceived what equity is available by the surety. His obligation is co-extensive with that of the principal, while the surety may avail himself of the laches of the creditor in neglecting to apply the means of satisfaction to the discharge of the debt, when either in his hands or within his reach; still it cannot be pretended that the creditor is bound to change the terms of the original contract and accept of them in lieu of such contract.
    “ Judgment is directed to be entered in favor of plaintiffs for $107.25.”
    This was assigned for error on the removal of the case to the Supreme Court, by the defendants.

      U. Yerkes and Cr. Moss, for plaintiffs in error,
    referred to Act of March 81st 1860, § 37, Pamph. L. 392, Purd. 223, pl. 39; Phillippi v. Commonwealth, 6 Harris 116; Rex v. Conforth, 2 Strange 1162; Commonwealth v. Anderson, 1 Ashmead 55; Fitler v. Fitler, 9 Casey 50; Hellings v. Directors, 3 Harris 409.

      N. O. James, for defendant in error.
   The opinion was delivered,

Per Curiam.

— We think the judgment of the court below in favor of the plaintiffs, was entirely in accordance with the law of the case, and is sufficiently vindicated in the opinion of the learned judge. We therefore affirm the judgment for the reasons so well stated by him in that opinion.

Judgment affirmed.


author: by Agnew, J.

text:
    Uhler versus The Farmers’ National Bank of Bucks County.
    1. The endorsement of a payee and first endorser is a primary, though conditional promise to pay the note to the holder.
    2. The demand and notice necessary to make the undertaking absolute, were only acts to be done under the promise.
    3. Uhler was payee and endorser of a note drawn by Ferguson and discounted by a bank who failed to give due notice of dishonor. Uhler promised to pay, if the bank would wait for a dividend from Ferguson's estate, and if being under protest should not bar his having accommodations. This did not change the character of Uhler's direct responsibility on the note.
    4. It continued for the same debt to the same creditor and for a new consideration from the creditor to him.
    5. The waiver of the bank rule to refuse accommodations to persons on protested paper, is a benefit to a party on a protested note.
    6. The promise of a relieved endorser to pay is not within the Statute of Frauds, as being the debt of another.
    7. Where the promise is to pay the promissor’s own debt, although that of a third person be incidentally guarantied, the promise need not be in writing.
    8. In strictness, a waiver of protest is an agreement made before or at the time of maturity of the note.
    9. A promise of an endorser after maturity to pay notwithstanding there had been no protest, is a new undertaking.
    10. The endorsement is a transfer of title to the note, and is a promise to pay on the failure of the drawer for a consideration proceeding to him from the subsequent endorser or to the drawer at his request, evidenced by the endorsement.
    11. The promise of the endorser to continue his liability, is not a new and independent promise within the Statute of Frauds.
    12. Maule v. Bucknell, 14 Wright 39, remarked on.
    March 8th 1870.
    Before Thompson, C. J., Agnbw and Sharswood, JJ. Bead, J., at Nisi Prius.
    Error to the Court of Common Pleas of Bucks eounty : No. 334, to January Term 1870.
    The Farmers’ National Bank of Bucks County, on the 12th of March 1868, brought an action of assumpsit against Michael Uhler.
    The cause of action was a promise by the defendant to pay a note which he had endorsed, which had been discounted by the plaintiff, and had been dishonored, hut of the non-payment of which the defendant had not been notified in time. The note was as follows:—

      $1000. Philada., Oct. 26th 1864.
    Sixty days after date, I promise to pay to the order of M. Uhler, one thousand dollars, without defalcation, for value received-
    W. F. Fersuson.
    Payable Third National Bank. (Endorsed) MICHAEL TJHLER, RICHARDS & YOUNG.
    Ferguson, the drawer^had made an assignment for the benefit of creditors and was insolvent.
    The evidence for the plaintiff was that the defendant having been called upon by C. N. Taylor, one of their officers, agreed that if the bank would wait until the estate of Ferguson should be settled, and would take their dividend from his estate, and would not consider the fact that the defendant was under protest, a bar to his future accommodation, he would waive all irregularity in the protest, and hold himself bound to pay the note, the same as if it had been duly protested, and would make up whatever deficiency there might be from Ferguson’s estate. The defendant then knew that he was discharged by reason of the insufficient protest. Notes were subsequently discounted for the defendant by the plaintiff, and never thrown out on account of the other note being under protest. There was evidence of the same agreement having been made with Richards and Young, and the defendants together. On the 18th of July 1867, the plaintiff received a dividend of $33.71 on the note from the estate of Ferguson.
    The defendant testified that Taylor charged him with having deceived the plaintiff as to Ferguson’s ability, threatened to prosecute the defendant for fraud; that a short time afterwards he called on the defendant, and said “ we had better compromise this thing. I told him we would pay the note on certain conditions: if they would wait and strike a dividend, would pay the note, if the bank would discount our paper as it had done before up to time estate was settled. He agreed they would do that. Mr. Young was by. When I spoke of ‘ we,’ I referred to Richards and Young; we were partners in the hay business. We told them at bank if they would continue to discount our paper as they had done before, we could pay this note. We offered a note that day ; it was discounted. We offered a few more papers and they stopped and wouldn’t discount any more; there was one or two notes discounted after this arrangement was made. Our paper was thrown out.”
    Defendant gave similar evidence by Richards and Young, the other endorsers; also that the note was business paper.
    The defendant asked the court to charge:&emdash;
    1. That if the jury believe from the evidence that this note was business and not accommodation paper, that after the bank failed to fix the liability of the endorser by protest, it was exclusively the debt of Ferguson the drawer, and there was no liability on the part of Uhler the endorser.
    2. That since the passage of the statute of “ Frauds and Perjuries,” of 1855, no parol agreement to pay a non-protested note, or to waive protest after maturity can be enforced, unless the promissor be the principal debtor, or the principal debt be released in consideration of such promise or waiver.
    3. If the jury believe that the agreement in this case consisted of a promise to pay such part of the Ferguson note as should remain unpaid after distribution of Ferguson’s assets by his assignee, and that the bank held the note against Ferguson, whose assets were, under the agreement, to be exhausted before recourse was had to the defendant under his promise, then such promise is within the Statute of Frauds and Perjuries, and the plaintiff cannot recover in this action.
    4. If the jury believe that the alleged agreement consisted of a promise to pay the Ferguson note, which promise was extorted by a threat, that the parties who were discharged by the laches of the bank should not have their paper discounted unless they paid a note upon which they were not legally liable, the enforcement of such a promise would be contrary to public policy, and the plaintiff could not recover in pursuance of it.
    5. If the defendant, at the time of the alleged arrangement, was not in bank on any paper which was dishonored by him, and which, by the then existing rules of the bank, would have excluded him from the privilege of discount, then .a promise which had for its consideration the waiver of such rule in his favor would be void for want of consideration.
    6. If the jury believe from the evidence that the Ferguson note was discounted for the benefit of the firm of Richards & Young, and that the alleged agreement consisted of a promise of the members of that firm, as such members, to pay the balance of.the Ferguson note, then the action should be joint, or be an action against the firm, and a recovery cannot be had in this suit against the defendant individually.
    The court (Chapman, P. J.) directed the jury to render a verdict for the plaintiff, if they believed the evidence.
    The verdict was for the plaintiffs for $1250.63.
    The defendant took a writ of error, and assigned the instruction of the court for error.

      Gr. Lear (with whom was Gr. Poss), for plaintiff in error,
    cited Schaffer v. Bank, 9 P. F. Smith 144; Maule v. Bucknell, 14 Wright 51; Forth v. Stanton, 1 Sanders 211 b, n. 1; Shoemaker v. King, 4 Wright 110.

      P. Watson (with whom was A. Swain), for the defendants in error,
    March 21st 1870,
    cited Young v. Bryan, 6 Wheat. 147 ; Turnbull v. Trout, 1 Hall 336; Barclay v. Weaver, 7 Harris 396; Sherer v. Easton Bank, 9 Casey 134; Thornton v. Wynn, 12 Wheat. 184; Donaldson v. Means, 4 Dal. 109; 1 Pars. on Notes and Bills 595, 596; Edwards on Notes 650, and cases cited; Ridgway v. Day, 1 Harris 208; Byles on Bills 237; Loose v. Loose, 12 Casey 538; Malone v. Keener, 8 Wright 107.
   The opinion of the court was delivered,

by Agnew, J.

— Michael Uhler was the payee and first endorser of the note in suit. His endorsement was a primary though conditional promise to pay the note to the plaintiff. The demand and notice necessary to make his undertaking absolute, weré only acts to be done under the promise. The direct character of this liability was not changed by Uhler’s promise to continue responsible on his endorsement, if the bank would wait for its dividend of the estate of the drawer, and in the mean time would treat the non-payment of the note as no bar to his obtaining future accommodations. It'was still for the same debt to the same creditor, and for the new consideration moving from the creditor to himself. The general rule of banks to refuse accommodations to the parties on protested paper, is one of great utility in enforcing payment; and its waiver by the bank is an undoubted benefit to a party on the dishonored note. The promise is not within the Statute of Frauds merely on the ground that the debt is also that of another: Malone v. Keener, 8 Wright 107; Arnold v. Stedman, 9 Id. 186. Read, J., said, in Malone v. Keener, that the general principle which prevails in all cases under the 4th section of the Statute of Frauds, from which our act is taken, is, that whenever the defendant’s promise is in effect to pay his own debt, though that of a third person be incidentally guarantied, it is not necessary it should be in writing. Ample authority is referred to in those cases. The argument of the plaintiff in error admits that the facts were not disputed, but alleges error on the ground that the learned judge treated the ease as one of a mere waiver of protest, instead of a new promise to pay, falling within the Statute of Frauds, because not in writing. In strictness of terms a waiver of protest is an agreement made before or at the time of maturity of the note, and a promise to pay made after maturity, notwithstanding there had been no protest, is a new undertaking. But this undertaking is still primary on the part of the defendant, and not a mere or naked promise to pay the debt of another. The endorsement of the defendant was a transfer of title to the note, and a promise to pay it on failure of the drawer to do so, for a consideration proceeding to him from the subsequent endorser, or to the drawer at his request, evidenced by the fact of endorsement. The defendant as endorser is therefore a party to the debt, conditionally bound for it. His promise to continue his liability to the creditor from whom the consideration had moved to himself or to the drawer at his request, cannot therefore be said to be a new and independent promise within the Statute of Frauds. It is not a mere promise to pay the debt of another, having no other foundation than his express agreement to pay it. This distinguishes it clearly from Maule v. Bucknell, 14 Wright 39. The endorsement connected the defendant directly with the note and with the holder, and bore on his own interests as a party to it by barring his title to future accommodations from the holder. He stood in privity both with the debt and the creditor, thus making the new consideration a potent element, and his promise to continue liable on his endorsement a primary liability. Maule v. Bucknell was the ease of a promise by a third and disconnected party to pay the debts of the Eastern Market Company, with which the promissor had no prior connection or privity. It was wholly collateral and independent, and was essentially a new and mere undertaking to pay the debts of another, and on that account was held to be within the Statute of Frauds, notwithstanding the existence of a new consideration. But here the defendant is bound to the note by a ligament he oannot sever — he cannot wipe out his name — his endorsement is there, the channel of the plaintiff’s title, and the evidence of his own dishonored credit. When he promised payment, therefore, he did not assume the mere debt of another, but he relieved himself from personal discredit, and reassumed a position he already had sustained to the debt and to the creditor.

But it is now said the judge in the court below ought to have submitted to the jury the question of fact, whether the plaintiff' had refused accommodations to the defendant on account of the protested paper. It is a sufficient answer to say that no such question appears to have been made. Not one of the six points of the defendant refers to this question, no such error is assigned, and not a word is said upon it in the printed argument. The defendant had some paper discounted, and some not, but he gave no proof that any was thrown out on account of the protest, while the plaintiff had given evidence by two witnesses that the discounts were not refused on account of the dishonored paper. More than this was not promised by the plaintiff.

It was too late to take advantage of the non-joinder of other parties as defendants. Besides that, the evidence was strongly indicative of individual promises, the several endorsers remaining bound by their endorsements; and not by a joint undertaking.

Upon the whole case finding no error,

The judgment is affirmed.


author: by Thompson, C. J.

text:
    Minard versus Beans.
    1. Interest is not demandable until the money is due.
    2. Interest is compensation allowed the creditor for delay of payment. _
    _ 3. Interest is completely due whenever a liquidated sum is unjustly withheld.
    4. Interest is a legal and uniform rate of damages allowed in the absence of express contract, when payment is withheld after it has become a duty to discharge the debt.
    5. If a vendor cannot make title at the time for payment of the purchase-money, the vendee, if he retain possession, must pay interest as a compensation for the profits he is receiving from the land.
    6. Interest not allowed on articles of agreement in this case.
    March 8th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Bucles county: No. 347, to January Term 1870.
    This was an amicable action of covenant and case stated, in which Robert Beans was plaintiff and Orlando W. Minard defendant.
    The facts are the following :—
    The action was for interest under the following articles of agreement: “ Articles of agreement made this 9th day of March 1868, between Robert Beans of the one part, and Orlando W. Minard of the other part, showeth that the said Robert Beans doth hereby agree to sell and convey all the real estate belonging to him, situated, &c., also all the tools, steam-engine boilers, also all the patterns, flasks, &c., in consideration thereof the said Orlando W. Minard hereby agrees to pay, or cause to be paid, the sum of $25,000, the payments to be as follows: $1000 upon the signing of this agreement, $5000 on or before the 1st of April next, $4000 on or before the 1st of October next, the balance to remain on mortgage and payable in five equal instalments of $3000, the first one due October 1st 1869, the second one October 1st 1870, to continue until all are paid, together with interest on all moneys remaining unpaid,” &c.
    The defendant took possession of the premises and property on the 1st of April 1868.
    The deed was dated April 1st 1868, but acknowledged and delivered on the 1st of October 1868, at which time a mortgage was given for $15,000, to secure the payments as per article of agreement, with intérest from its date, without prejudice to either party upon the questions in this case stated. The payments made were $1000 at the execution of the articles of agreement, $5000 on the 1st of April 1868, and $4000 on the 1st of October 1868; no interest having been paid on any of said sums of money.
    The question for the opinion of the court, is, whether the plaintiff is entitled to interest from April 1st 1868, the day of taking possession of the said premises by defendant, to October 1st 1868, the day of the delivery of the deed and mortgage, on the $19,000 remaining unpaid during that time.
    April 4th 1870,
    If the court be of opinion that the plaintiff is entitled to interest on the whole sum, the judgment to be entered in favor of plaintiff and against defendant for $570.
    If the court be of opinion that plaintiff is entitled to interest on the $15,000, and not on the $4000, then judgment for plaintiff for $450.
    If the court be of opinion that the plaintiff is entitled to interest on the $4000, and not on the $15,000 during that period, then judgment for plaintiff for $120.
    But if the court be of opinion that the plaintiff is not entitled to interest on either of the sums, judgment to be entered for the defendant.
    The court (Chapman, P. J.) rendered judgment for the plaintiff for $570.
    This was assigned for error by the defendant on removing the record by him to the Supreme Court.

      G. Ross, for plaintiff in error.
    — The contract of the parties will bind them, whether in accordance with the general rule or not or whether reasonable or unreasonable: Nelson v. Bonhurst, 5 Casey 353; White v. Smith, 9 Id. 186.

      E. M. Lloyd and Gr. Lear, for defendant in error.
    — A purchaser by articles, entering and continuing in possession, must pay interest on the unpaid purchase-money; Fasholt v. Reed, 16 S. & R. 266; McCormick v. Crall, 6 Watts 207; Kester v. Rockel, 2 W. & S. 365; The Penna. Railroad Co. v. Cooper, 8 P. F. Smith 409.
   The opinion of the court was delivered,

by Thompson, C. J.

— We think the true interpretation of the agreement set forth in the case stated, leads to a different result from that arrived at in the court below.

A plain reading of its terms in regard to the payment of the purchase-money, seems to be all that is needed to show that the claim of the plaintiff for interest is unsupported.

The purchase-money was to be $25,000; besides3the down payment or hand-money, $5000 was to be paid on the 1st of April (ensuing the date of the articles); $4000 on or before the 1st of October 1868, the balance to remain on mortgage payable in five equal instalments: the first on the 1st of October 1869; the second on the 1st of October 1870; and to continue until all are paid, “together with interest on all moneys remaining unpaid.”

It is morally certain that nothing was expected to remain unpaid on the 1st of October 1868, but the money which was to remain on mortgage, and that was to be paid in five instalments of $3000 each, “ together with interest on the moneys so remaining unpaid on the said 1st of October 1868.” That the interest was to commence then is certain, for that was the time the mortgage was to he given; and this is reduced to a certainty by the fact, that the instalments were to fall due annually and he payable on the “ 1st day of October 1869; the second on the 1st day of October 1870; and so on,” &c. The mortgage was given on the 1st of October 1868, for the security of the above-mentioned instalments, which shows that all prior payments had been made. There was no contract to pay interest on any money falling due on the 1st of October 1868, and there was none to pay interest on the money to he secured at that date. If interest was to be calculated, and paid, before giving the mortgage on the payments to he secured by it, where is the contract for that ? If it be claimed that it was to be calculated and included in the mortgage, it will conflict with the agreement which makes all the instalments to be secured by the mortgage equal. They would be unequal by the amount of back interest. If it be claimed that the mortgage was to be given on the 1st of April 1868, then as the agreement fixes that the instalments are to be paid annually, and expressly fixes the time of payment, just a year from the 1st of October 1868, viz.: 1st of October 1869, and so on, the first instalment would not be, annual.' It would be payable a year and a half after being secured, and thus conflict with the agreement. This shows that the parties did not mean this, but that the payments were to be annual, the first having a year to run, the second two years, and so on from year to year, and until they should be paid.

Interest, as a general, I might say, universal rule, is never demandahle until money is due. “ It is,” say the books, “ compensation allowed to the creditor for delay of payment by the debtor.”

It is completely due, wherever a liquidated sum of money is unjustly withheld. It is a legal and uniform rate of damages allowed, in the absence of any express contract, when payment is withheld, after it has become the duty of the debtor to discharge the debt : Kelsey v. Murphy, 6 Casey 340. There was no express contract for the payment of interest up'to the 1st of October 1868. That is certain. Where is the principle that implies it ? There was no debt due at that time bearing interest, and no overdue debt existed. It was a mistake to imply it from possession of the property by the vendee, when no money was due or withheld.

There is a class of cases where interest is always charged on money due, although not payable, by a vendee. For instance, where the purchase-money is payable at a certain time, and the deed is to be made at tbe same time. If the vendor cannot make title at the time appointed for the payment of the purchase-money, and the vendee retains possession, he must pay interest as a compensation for the profits he is receiving during the vendor’s inability to make title. It would be grossly inequitable that the vendee should hold both land and money and compensate for neither. These and kindred circumstances raise an obligation to pay interest, although the purchase-money is not recoverable. But even here the money must be overdue. Where it is not due, and no contract exists for its payment while running' to maturity, it must be an exceptional case where it is legally' demandable. It is certainly not so, we think, in this case. We think, therefore, that there was error in the court below in entering judgment in favor of the plaintiff below, and that the judgment must be reversed.

Now, April 4th 1870, the judgment of the court in this case is reversed, and judgment is now entered on the case stated, in favor of the defendant, with costs, &c., and the costs of this writ of error.


text:
    Moss et al. versus Culver.
    1. Culver liveá in a house on 50 acres of land belonging to his father-in-law, Moss, and farmed the land as tenant at will. They agreed by parol to exchange this tract for 140 acres belonging to Culver. Moss took exclusive possession of the 140 acres, and sold portions to other persons. Culver, after the exchange, continued in exclusive possession of the 50-acre tract for nineteen years, improved it with the knowledge of Moss, and paid taxes; no rent was demanded or paid. Held, to be evidence of such execution of the exchange as to take it out of the Statute of Frauds.
    2. There is no difference between a parol sale and exchange of lands as to the requisites to take them out of the Statute of Frauds.
    3. There is a difference between sale and exchange as to the evidence to establish possession; an exchange has subjects on both sides which stand related to each other, and if the evidence shows a clear, unequivocal and complete taking possession of one of the subjects, it strengthens the evidence of a possession taken by the opposite party of the corresponding subject.
    4. In case of a parol sale to a tenant, an express surrender of the tenancy and resumption of possession under the contract, is sufficient.
    5. Miles v. Miles, 8 W. & S. 135, Reynolds v. Hewitt, 3 Casey 176, recognised.
    March 15th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Bead, J., at Nisi Prius.
    Error to the Court of Common Pleas of Luzerne county: No. 822, to January Term 1870.
    This was an action of ejectment for 50 acres of land brought, December 7th 1867, by Benjamin Moss against Wesley Culver. The plaintiff having died pending the suit, Daniel Moss and others, his heirs and devisees, were substituted as plaintiffs.

      The legal title to the premises was in the plaintiffs. The defendant claimed under a parol exchange between himself and Benjamin Moss.
    The case was tried January 11th 1870, before Dana, J. The plaintiffs gave in evidence a deed, dated October 31st 1831, from Isaac Smith to Benjamin Moss; also the will of Benjamin Moss, giving legacies out of the proceeds of sale of the premises in dispute, to the plaintiffs in this'suit. The plaintiffs then rested.
    The defendant gave evidence that he went into possession of the premises in 1847. He also gave in evidence a contract, dated February 1st 1841, between Benjamin Moss and Joel Culver and Wesley Culver for 241 acres of land for the consideration of $420, of which $25 was to be paid down, and $100 on each succeeding 1st of December till paid; a general warranty deed to be given to the vendees on the second payment. Endorsed on the article, were receipts from February 1st 1841 to August 24th 1845. The receipt on the last day was — “ $50. Yoke of oxen, $80 cash.” Also an endorsement, “ 5th November 1855. Received satisfaction in full of the within article.”
    Joel Culver testified that he and the defendant went into possession of this land immediately after the contract; witness took possession of 100 acres and the defendant of 140. About 1846, the defendant married Fanny, a daughter of Benjamin Moss; after his marriage defendant went into possession of the 50 acres in dispute, which was about a quarter of a mile from Benjamin Moss’s residence; Benjamin Moss told defendant to move into the house; there were a house and barn on the 50 acres; “sometime in the fall of 1848 Benjamin Moss sent for me, went over in the afternoon; I asked him what he wanted; he said he had been trying to make a trade with Wesley Culver for the lot of land where he lives for the 140 acres of woodland;” he said he had certain reasons; one was that Wesley wanted to move upon the 140 acres, and because his wife was addicted to having fits, that she would be away from under his eye, and Wesley would be away sometimes, and he (Moss) could not look to her in Wesley’s absence. He said the reason I sent for you is, I have been trying to get a trade with him and cannot get him to agree to it. He said I want you to go down and try to prevail on him to trade this 50 acres for the 140 acres. * * * He said I want you to go down and offer him that lot where he lives even up for the 140 acres, tell him I will make him a general warranty deed for it in lieu of that I was to make for the 140 acres. I went down and found Wesley and his wife at home; I said I understand that you and the old man Moss have been talking about trading; yes, he said, we have; I said, Wesley, how does Moss want to trade? Wesley said he wanted to trade him this where he now lives for the 140 acres up yonder. * * * I said, I think you had best trade, you will do better. He said if you think it is best, you may tell old Moss I will trade. * * * I came to Moss’s house; he said, What success ? I said, If you will go right down you can get a trade; I told him that Wesley said he would trade; he said I will trade with him then before I sleep. * * * I met Benjamin Moss in the road; he said I made that trade last night; I said how did you trade ? he said just as you proposed yesterday; he said I got the sleigh; you know there was $18 due on the land from Wesley; he said I want you to turn right about with me and go up there; we proceeded together up there; we met Wesley out at his barn; I said to Wesley, It appears that you and the old man have traded? Wesley said, We have; the old man said I want you to remain here just as you are living now. * * * Benjamin Moss said, Now, Joel, I will give him a general warranty deed for this. I am going down to Koons to-morrow, he generally keeps blanks, if I get them I want you to fill up four titles; I want you to fill up one for Almon Wilkinson and his wife for 80 acres of Wesley’s land up there; I want you to fill out one for John Holmes for that where he lives; I want you to fill out one for yourself, for your part of the 240 acres, and one to Wesley for the 52 or 53 acres where he lives; I met him the next day; he told me he didn’t get them, for Koons hadn’t any; he said I want you when you go to Wilkesbarre to get those blanks; about one month, or two or three, I told him I was going to Wilkesbarre and I could get the blanks: he said, Glet them and I will pay for them; I got three blanks, I did not get four because the printer did not have them; I went back. It was rather neglected, and the deeds were not made out for some weeks or months. Now, he said, I want you to go on and fill up those titles; he said, I want them made out in my lifetime; he said, You or Wilkinson or Holmes or Wesley will have to wait; he said, I will go and get Wesley to wait, and if he won’t, you will have to wait; he sent me word that Wesley would wait; I went at it and filled up the deeds for John Wilkinson and wife, John Holmes and myself; he said I should get Squire Crocket and send him word and he would acknowledge them; I did so, and Moss acknowledged them; the one to Wilkinson was for 80 acres of Wesley’s 140 acres. At the time he made the deeds he told me the reason he wanted to make the trade with Wesley; that he wanted to give Wilkinson 80 acres, Rood 35 acres, and Jefferson Arnold 35 acres of Wesley’s 140 acres; Wesley has been in possession of the 50 acres from the time of the trade up to this time; he had paid the full purchase-money and interest; he has put in repair the fences, set out fruit, grafted and done the ordinary work; he has lived on it just as a man would live on his own farm; he has made stone wall, quite considerable; he has cleared some of it and has farmed it, and cleared it and used it as men ordinarily do, and lives there now; Wesley never had anything to do with the 140 acres after the trade; Benjamin Moss took possession and sold it; he made the deeds in February 1849 to me and Wilkinson and wife; it ran along about eight or ten years; Benjamin Moss and Wesley got in a little difficulty in the church; after this Benjamin Moss made a deed to Wesley for this land. * * * The objections that Wesley made to the deed that Moss made, was that about three acres of land was left out. The title Wesley said was good enough, but it did not embrace all the land. The charge in the church trial was that Benjamin would not make a deed to Wesley; Moss said he would make him a deed after the trial.”
    Defendant gave in evidence assessments from 1849 to 1868, showing that the land in controversy was assessed to him.
    John Blanchard testified: “I was called upon by Benjamin Moss twelve or thirteen years ago to take the acknowledgment of a deed to Wesley Culver; I took the acknowledgment; it is for the land Wesley lives on; after-I took the acknowledgment Moss gave me the deed and requested me to see him and give it to him ; I took it; I handed him the deed and told him what it was; he looked it over and read it; he said it did not cover all the land he claimed; upon those grounds he would not take the deed; he said it failed to cover several acres; I gave the deed back to Mr. Moss.”
    The defendant then gave in evidence the deed, dated January 7th 1854, for the land in dispute, “ 50 acres strict measure,” consideration $1000.
    The defendant then gave evidence by a number of other witnesses of declarations by Benjamin Moss, that defendant owned the land in dispute; that .he had “traded” him (Moss) another piece of land for it. He also gave evidence of his possession for eighteen or twenty years; of improvements made by him. There was evidence also that Moss and his son and defendant worked together on the farm in and prior to 1848, and in that year Moss declared defendant was going to work it after that. The defendant’s wife died in. 1856.
    On the part of the plaintiffs, in rebuttal, Lucy Wilkinson, one of them, and a daughter of Benjamin Moss, testified that in 1848 Moss said to defendant: “ I have been thinking if you are willing, I will take back the 140 acres and let you have and stay on this where you are as a tenant; some day it will fall to you or my daughter as an heirship; but he said, I can’t pay you back the money that you have paid me on that other which was about $140, but I will tell you what I will do; I have got two yoke of cattle in the yard, you may take your pick of the two yoke for $100, and the rest I will pay you, and let you have a plough and a harrow besides; Wesley said it would be very good for him, that it would save him from hunting around to get a team ; Wesley had been living on the place very near a year; Wesley got the plough and harrow and oxen ; I never heard anything about a trade; I have heard Culver say he was satisfied; that my father had paid him back all he had paid him on the contract.”
    Daniel Moss, another of the plaintiffs, testified in a similar manner. They gave other evidence also in rebuttal.
    The plaintiffs requested the court to direct the jury to render a verdict in favor of the plaintiffs.
    I. Because they have shown an undisputed legal title to the land — not affected by the alleged parol sale or exchange of the same between B. Moss and the defendant.
    II. The defendant has not proved such a parol sale or exchange to him as will except his case out of the operation of the Statute of Frauds and Perjuries.
    1. Because he has not shown by clear, direct, and positive testimony that a sale or exchange ever was agreed upon by him and B. Moss face to face — nor has he shown by clear, direct, and positive testimony what the consideration was, nor that he ever paid it.
    2. Because he has not proved that he has made such permanent valuable improvements upon the land in dispute as that he cannot be compensated in damages.
    3. Because he was a tenant under B. Moss in possession of the the land in dispute at the time of the alleged parol sale or exchange of the same to him, and therefore could not and did not take such an open and notorious transfer of the possession of the same as the law requires.
    The defendant requested the court to charge the jury—
    1. That courts recognise a distinction between a parol exchange and a parol sale of lands; and that, while the former cannot be supported without a delivery of possession of both tracts in accordance with the contract, yet an exchange from its nature imports transfer of title, and the evidence to support it covers a wider latitude than would be admissible in a mere parol sale of lands.
    2. That it is not essential to the efficacy of a parol exchange of land, that each party should take immediate possession of the property exchanged.
    3. That where two parties have exchanged lands, and one of them has gone into possession of his part, sold the same and reaped the fruits of his bargain, and in the mean time suffers the opposite party to take and have exclusive possession of what he gets by the same exchange, and to continue therein, claiming and using notoriously the property as his own, tilling it, improving it permanently, paying the taxes on it as they are annually levied, and exercising absolute dominion and control over it for a period of nineteen years and upwards, such a possession, accompanied by a full payment of the consideration stipulated in the original contract of exchange, amounts to ownership, and may be maintained against the original owner, and his heirs and assigns, notwithstanding the Statute o'f Frauds.
    5. That a direction by one who has exchanged the land occupied by his tenant, to said tenant himself, for other land belonging to the^tenant, that the tenant should continue thereafter in possession of the land so exchanged to him, in pursuance of the contract of exchange, and no longer as tenant, if proved, afford evidence proper for the consideration of a jury, of a surrender of the original tenancy and an entry in pursuance of the parol contract of exchange, particularly if the occupancy thereafter was exclusive, continued and notorious, and was followed by an immediate change of the assessment of the land, the payment of the taxes, and the non-payment of rent to the original owner.
    6. That if the jury believe from all the evidence in the case, that a parol contract for the exchange of lands was made between Benjamin Moss and Wesley Culver, in pursuance of which each went into possession of the land of the other, and that Benjamin Moss sold and conveyed the land received by him, thus rendering it impossible for him to place Wesley Culver in his original position, and that Culver held notorious, continued and exclusive possession of the land received by him, and exercised ownership over the same for a period of nineteen years and upwards, and that the land was assessed to, and the taxes paid by him, and that the parol contract of exchange had been so fully executed that it would be against equity to rescind the same, that such contract was not within the Statute of Frauds.
    In his charge Judge Dana said :—
    * * * “ The questions of law connected with the case are not wholly free from difficulty, and are also raised by written points submitted by the counsel of the plaintiffs and defendants respectively and our instructions to you will be our answers to them.
    “ A parol exchange falls within the provisions of the statute we have just read, and the burden of proof is therefore upon the defendant setting up a parol title to the fee in the lands in controversy, and he is bound under the construction of the act by the court, clearly, distinctly, directly and not by inference, to show by credible and competent evidence, that the contract of exchange was made, the time when, its precise terms, the contents, quantity and boundaries or other sufficient designation or means of identifying the lots interchanged, so as to leave no uncertainty in respect to either; whether the exchange was upon equal terms, or if an additional equivalent was to be given, to whom, its amount and the fact of its payment; and that under and in pursuance of such agreement thus definitely and distinctly proven, exclusive possession was taken by each, of the lands he received under the exchange, has continued to be openly held, improvements not susceptible of compensation in damages made, and that in fact the contract has been so far executed that it would be against equity to rescind it.
    “ The taking possession and its retention being open, visible and continuing acts, are uniformly declared by the courts to he indispensable requisites to take the case out of the operation of the statute. It is not essential that such taking possession be instant and immediate on the hour or day of the contract, but must be taken under and in pursuance of it and within such reasonable time as the situation of the premises and of the parties warrant, and as shall leave no doubt by length of interval or other circumstances that the possession is directly consequent upon and in pursuance and part performance of the contract. The defendant’s 2d point, thus understood and qualified,, is affirmed.
    “ It is made our duty to charge the jury, that it is incumbent on the defendant who sets up a title in derogation of the easy and certain statutory requisites for the assurance of lands, to leave upon your minds no reasonable- doubt. It is not enough, as in ordinary civil actions, that the weight of evidence inclines in his favor; he must go farther, and leaving nothing in uncertainty, satisfy you that each of the requirements we have specified are met and answered. Neither is it sufficient that the case rests upon the unsupported testimony of a single witness, although the evidence of one competent and credible witness present at the agreement, corroborated by the clearly proven declarations and acts of the parties, may suffice. Declarations also from liability to the misapprehension and misstatements of witnesses, especially after the declarant is dead, are not the most reliable evidence, and require to be thoroughly scrutinized by the jury.
    “ Guided and governed by these general rules, do you find under the evidence that a contract of exchange was made as claimed by the defendant, and are its terms and extent thus fully defined and proved ?
    “ If not, or if the agreement was that which is alleged by the plaintiffs, the defendant’s case fails him, your inquiries need proceed no farther, and your verdict should be for the plaintiffs. [But having proved the contract of exchange, did Benjamin Moss, under and in pursuance of it, take exclusive possession of the 140 acre lot, exercise over it acts of ownership, sell and convey portions or the whole thereof, and thus place it out of the power of himself or of his heirs to reinstate the defendant in his former position ? His taking possession, his exercise of ownership and sales are not denied by the plaintiffs; they claim, however, that those acts were not in pursuance of an exchange, but of a release and surrender of his equity by the defendant. Did the defendant Culver in like manner take and thenceforward hold the exclusive, open, visible possession of the lands he was to receive under the exchange ?
    “ In this connection we advert to the points, two in number,, submitted, with his reasons attached, by the plaintiff’s counsel.
    “We decline to affirm either of these points, and refuse to charge that as matter of law the verdict must be for the plaintiff, or that the defendant has not proved such a parol sale or exchange as will except his case out of the statute. The points and reasons appended assume as facts what must, in our view, be' submitted to the determination of the jury. The third reason for the 2d point assumes the plaintiff’s theory of the result of the evidence, that the defendant was at the date of the exchange not merely a temporary and permissive occupant of the house, but was in possession of the 50-acre lot also. Should the jury, however, find under the evidence that up to and at the date of the alleged exchange, Culver was merely occupying the house, and assisting to work lands owned by him, as well the 50-acre lot as his other lands in the vicinity, and that under and pursuant to the exchange, took the exclusive possession of the piece nowin dispute, had it assessed to him, paid the taxes thereon, and continued to occupy exclusively, and use and improve the same for a period of nineteen years, Moss having taken like possession, occupied and disposed of the 140-acre lot or a large portion thereof, the case would in our opinion be brought within the exceptions to the statute and the defendant may recover. The statute against frauds is to be so construed and enforced as not to be made either a pretext, an instrument or a defence of fraud. The defendant’s 3d and 6th points are affirmed.
    “We have already stated that a parol exchange is within the statute, and enumerated the proof requisite to take the ease out of the same. We are also of the opinion that the courts have recognised a distinction between a parol sale and an exchange, when such exchange has been followed by a corresponding possession and subsequent sale of one of the tracts exchanged, whereby it was rendered impracticable to reinstate the before existing relations of the parties.
    “ In both the fact of possession taken is requisite, and the distinction relates chiefly to the kind and manner of proof, and the defendant’s 1st point thus qualified is affirmed.
    “ In the nature of an exchange, which is effected and made up of the concurrent acts of both parties, it results that possession taken of one of the tracts under the circumstances of this case, if the defendant’s evidence is believed, may be considered by you in weighing the evidence of possession by the other, and if Wesley Culver at the date of the exchange was in possession both of the house and of the 50-acre lot, the facts assumed in the defendant’s 5th point, if clearly found, are, in connection with the other facts of the case, relative to the possession by both Moss and Culver, evidence proper for the consideration of the jury of a surrender of the original tenancy and of a re-entry, in pursuance of the parol contract of exchange; and this point, thus understood, is also affirmed.”
    May 5th 1870,
    The verdict was for the defendant.
    The plaintiffs took out a writ of error. They assigned for error the answers to the points of the respective parties and the portion of the charge in brackets.

      D. L. Rhone, C. E. Wright and D. C. Harrington, for plaintiffs in error.
    — To make a parol sale sufficient the contract must be direct, positive, express and unambiguous. The terms must be clearly defined, and all the acts necessary for its validity, must have especial reference to it and nothing else; the land so described that there can be no mistake with regard to its identity ; payment of the purchase-money, and possession taken in pursuance of the contract and such possession must be exclusive, with the boundaries of the land distinctly ascertained : Frye v. Shefler, 7 Barr 93; Greenlee v. Greenlee, 10 Harris 226. One tenant in common cannot purchase by parol of his co-tenant or a tenant purchase of his landlord, for being in possession, no visible change is possible: Eckert v. Eckert, 3 Penna. R. 332; Poorman v. Kilgore, 2 Casey 371; Workman v. Guthrie, 5 Id. 495; Hill v. Myres, 7 Wright 174. There is no difference between a parol sale and a parol exchange of lands: Big Mountain Improvements Co.’s Appeal, 4 P. F. Smith 370. In such cases as this, the judge acts as chancellor, and if the facts will not take the case out of the statute, he should so charge: Stafford v. Henry, 1 P. F. Smith 517; Startwell v. Wilcox, 8 Harris 117; Kidder v. Boom Co., 12 Id. 293.
    The Reporter received no papei’-book of the defendant in error.
   The opinion of the court was delivered,

by Agnew, J.

— The first and second assignments of error do not conform to the rule requiring the points to be set out in totidem verbis. The 3d and 4th, however, embrace all the material questions in the cause. The contract for the exchange of farms between Benjamin Moss and Wesley Culver was sufficiently proved. The testimony of Joel R. Culver brought the parties face to face, not only in the fact that he was the authorized channel of communication between them, but by actual presence also. The agreement to exchange was direct, positive, express and unambiguous ; its terms clearly defined, and the subjects of it identified. Wesley Culver was the equitable owner of a tract of 140 acres of land bought of Benjamin Moss, on which he had paid all the purchase-money except a small sum. Benjamin Moss was the owner of a tract of 50 acres of land. Wesley Culver married a daughter of Moss, and went into the house on the 50 acres. For family reasons Moss desired to get back the 140 acres he had sold to Culver, and had been endeavoring to exchange the 50 acres for the 140 acres; but failed. He then sent Joel R. Culver to see his brother Wesley, and persuade him to exchange. Before Joel started he asked Moss how he wanted to trade, and what proposition he should make to Wesley. Moss said, I want you to go down and offer him that lot where he lives, even up, for the 140 acres, and tell him I will make him a general warranty deed for it, in lieu of that'I was to make for the 140 acres. Upon these terms, the exchange was finally made, with the additional provision that Wesley should give Moss a sleigh in satisfaction of the balance of purchase-money unpaid on the 140 acres. Thus the terms of the exchange were clear and unambiguous. The subjects of it were equally well defined, the tracts being separate well known parcels of land, given each for the other, without the necessity of a survey, or other act to ascertain or identify them. The exchange was carried fully into execution, even to the tender of the warranty deed to Wesley Culver, but which he foolishly rejected on the ground that the terms 50 acres strict measure would not embrace (as he supposed) two or three acres additional contained in the tract. Benjamin Moss got back the tract of 140 acres, and has since held it and conveyed parts of it away. Wesley Culver has remained in the exclusive and undisturbed possession of the 50 acres for almost twenty years. The tract has been assessed to him, and taxes paid by him during all this time. The contract, as proved by Joel R. Culver, was strongly corroborated, and mutual performance fully proved by other witnesses-. Under these circumstances the contract and the facts of the exchange were properly submitted by the court to the jury, and if believed were sufficient to take the case out of the Statute of Frauds and Perjuries. There was not such a conflict of evidence raised by the testimony of Lucy Wilkinson the daughter, and Daniel Moss, the son of Benjamin Moss, as justified a withdrawal of the case from the jury. Their statement as to a different arrangement about the 140 acres, and the permissive occupancy by Wesley of the 50 acres, was strongly contradicted by the act of Moss himself in making the deed to Wesley for the 50 acres. The church trial and the deed strongly repelled any idea of a tenancy. Nor are we convinced that there was not sufficient evidence of the change of the character of Wesley’s posssession of the 50 acres at or immediately after the exchange. Indeed there was no satisfactory evidence of his tenancy of the tract or of the terms under which he held possession of it before the exchange. Joel R. Culver testifies that after Wesley’s marriage to Moss’s daughter, he went into possession of the house on the 50 acres — that Moss told him to move into the house. On the other side there was no proof of a specific tenancy. Daniel Moss said he knew that Wesley went on to the place — that they all worked together there that summer. Jonah De Long said all he knew was that Daniel Moss, Wesley, and his uncle (Benjamin Moss), worked together, and he thought they divided in some way or other. Certainly this is loose evidence of a tenancy of the entire tract by Wesley, and scarcely justifies the complaint, that the judge submitted a theory of his own without evidence, as to the tenancy being confined, possibly, to the house. Nor is there any force in the expressions— “ the lot of land where he lives” — “ the land he now lives on.” They were simply descriptive of the tract exchanged, and not of the character or extent of Wesley’s possession of it. But assuming that previous to the exchange Wesley had a permissive pos-, session.of the entire tract of the 50 acres, so as to constitute a tenancy at will, still the evidence of a change in the character of the possession was ample. It was exclusive on the part of Wesley for about twenty years, during which time the tract was assessed, and taxes paid by him. He paid no rent and none was demanded, and although the tract lay within a short distance of Moss’s residence, the possession of Wesley was undisturbed. .On the other hand there is no doubt of the exclusive possession and Control by Moss of the 140 acres, and his conveyance of part of it.

It is true, as has been often said, there is no difference between a parol sale and an exchange in regard to the requisites to take it out of the Statute of Frauds and Perjuries. A clear, explicit and unambiguous contract, and a taking of possession under and in pursuance of the contract, are as much requisites of a parol exchange as of a sale. But there is a marked difference in the evidence which establishes the possession. A sale is confined to a subject coming from a single side. It has no relation to, or dependence on any other subject. The evidence of possession taken of it is therefore confined to the single subject, and if not. taken in a reasonable time, or so as to make it doubtful whether it is attributable to the contract, the parol sale is not taken out of the statute. But an exchange necessarily has a subject on each side which stands related to the other. One is the representative of the other, so much so that the law implies a contract of warranty by the act of exchanging. If therefore the evidence shows a clear, unequivocal, and complete taking possession of one of the subjects of an exchange, by the'party owning the other subject, it strengthens the evidence of a possession taken by the opposite party of the corresponding subject. Evidence of possession that might seem weak and inconclusive in the case of a párol sale, is thus made clear and convincing in the case of an exchange. This is not new doctrine, hut has received the sanction of this court in at least two decided cases: Miles v. Miles, 8 W. & S. 135; Reynolds v. Hewitt, 3 Casey 176. In the present case, if the change of the character of Wesley Culver’s possession of the 50 acres, from that of tenant at will to that of owner, might be thought, when standing alone, in a slight degree doubtful, under the evidence, it is rendered perfectly clear by the evidence of Benjamin Moss’s possession and absolute control of the 140 acres received in exchange for the former. Even in the case of parol sale or gift a prior tenancy is not an absolute bar to proof of a change in the character of the possession: Aurand v. Wilt, 9 Barr 54. In such a case it is said that an express surrender of the tenancy, and a resumption of the possession under the contract will suffice.

Upon the whole ease we discover no error, and the judgment is therefore affirmed.


author: by Sharswood, J.

text:
    Yeager & German versus Weaver.
    1. Weaver leased from Yeager but could not get possession. In a suit for damages, Weaver might prove that he had sold his real and personal estate, that he was without a house and compelled to board, as showing lost time, trouble and inconvenienoe, the result of the breach of the contract.
    2. The refusal to strike out testimony after it has been received without objection, is not reviewable on error.
    3. In such case the only course is to request the court to instruct the jury to disregard the testimony.

      4. Under the Act of April 15th 1869, husband and wife may be witnesses for, but not against each other.
    5. By the Amendment of the Constitution of 1864, it was not intended that the title should be a full index to all the contents of the law, but to prevent including in an act, sections on entirely different subjects.
    6. The title of the act naming “ parties in interest” is cognate with the subject to extend the law to “ persons” — not “parties” — and to those who had before been excluded on the ground of policy.
    March 15th 1870.
    Before Thompson, C. J., Ag-new and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: Of January Term 1870, No. 136.
    This was an action of assumpsit, brought Ma.y 8th 1866, by Valentine G. Weaver against William F. Yeager and Nathan German, partners trading as Yeager & German.
    The cause of action was the alleged violation of a contract of leasing from the defendants to the plaintiff.
    The case was tried September 15th 1869, before Longaker,
    The plaintiff gave in evidence a lease (not under seal), dated December 28th 1865, by which the defendants agreed to lease to him an hotel in Allentown for three years from the succeeding first day of April. Before the commencement of the lease the plaintiff bought many articles for the purpose of furnishing the hotel.
    On the 1st of April the plaintiff attempted to take possession of the hotel; the tenant of the preceding year, then occupying the house, refused to allow him to take possession. One of the defendants said that the plaintiff should get possession in ten days; said he would put the tenant out, and told the plaintiff to get ready to go in. The plaintiff did not get possession of the hotel, and after some months sold the furniture which he had provided for furnishing the hotel. He then offered to show that after the making of the lease he sold his house and lot and personal property at vendue, for the purpose of making preparation to go into the hotel, to be followed by evidence that when he failed to get into the hotel he was without a house, and was compelled to board, to which defendants objected as irrelevant and not the subject of damage. The offer was admitted by the court, and a bill of exceptions sealed. The plaintiff then gave evidence in accordance with the offer.
    The plaintiff, testifying as to the value of the lease, said: “ I mean I would have made $500 per year; I mean $500 not as the value of an article of sale, I mean $500 a year profits could be made. All I mean by saying the lease was worth $1500, is, that I could make that much by staying there.” The defendants moved to have the opinion as to value of lease ruled out, because it includes profits not the subject of damage.
    The court overruled the motion, and sealed a bill of exceptions.
    The plaintiff then called Caroline Weaver, his wife. The defendants objected to her competency. She was admitted by the court, and a bill of exceptions was sealed. The plaintiff having given other evidence, and the defendants having given evidence on their part, the jury found .a verdict for the plaintiff for $910.
    The court overruled a motion by the defendants for a new trial, on condition that the plaintiff would release $200 of the damages, which he accordingly did.
    The defendants took a writ of error, and assigned for error,
    1. Admitting the evidence on the 1st bill of exceptions.
    2. Refusing to rule out the testimony as to the value of the lease.
    3. Admitting the wife of the plaintiff to testify.

      J. B. Metzgar and Brdman Oliver, for plaintiff in error.—
    As to the 1st error: 2 Parsons on Contracts 455; Stewart v. Walker, 2 Harris 293; Forsyth v. Palmer, Id. 97; Railroad Company v. Aspell, 11 Id. 147; Fleming v. Beck, 12 Wright 309; Fessler v. Love, Id. 407. As to the 3d error: Act of April 15th 1869, § 1, Pamph. L. 30, Purd. 1566, pl. 1; Pringle v. Pringle, 9 P. F. Smith 288; 2d Amendment of Const., 1864, Purd. 24, § VIII.
    March 31st 1870,

      E. Albright and J. D. Stiles, for defendant in error.
    — As to 1st error : Schmoyer v. Schmoyer, 5 Harris 520; Morgan v. Weir, 1 Casey 119; Peterson v. Speer, 5 Id. 479. As to the 3d error: Blood v. Mercilliott, 3 P. F. Smith 391; Bigelow v. Heyer, 5 Allen 245; Barton v. Gledhill, 12 Abbott 246.
   The opinion of the court was delivered,

by Sharswood, J.

— The 1st assignment of' error is not according to the Rule VIII., 6 Harris 578. It does not quote “ the full substance of the bill of exceptions, or copy the bill in immediate connection with the specification.” It omits a very material part of the bill that the counsel objected to the evidence oflered “ as irrelevant and not the subject of damage.” We might treat the assignment as none. But the evidence was clearly relevant and the subject of damage, for it showed that the plaintiff had lost time, and been put to trouble and inconvenience, the natural consequences of the breach of contract by the defendant. No error has been assigned to any part of the charge, so that we are justified in concluding that the rule for the measure of damages, as given to the jury, was not injurious to the plaintiff in error.

The 2d assignment is, that the court erred in overruling the defendant’s motion to striké out a part of the testimony after it had been received without objection. We have invariably held that the refusal of such a motion is not the subject of a bill of exceptions. The only proper course is to request the court to instruct the jury to disregard the evidence if it was incompetent : Robinson v. Snyder, 1 Casey 203; Ashton v. Sproule, 11 Id. 492; Oswald v. Kennedy, 12 Wright 9.

The 3d assignment is, that the court erred in allowing Caroline Weaver, the wife of the plaintiff, to be sworn and to testify as a witness in the case. The Act of April 15th 1869, Pamph. L. 30, declares that no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding: Provided, this act shall not alter the law as now declared and practised in the courts of this Commonwealth, so as to allow husband and wife to testify against each other.” It would seem very plain, from the words of the statute, that it was the intention of the legislature that husband and wife should be competent witnesses for, but not against each other. It is objected that the title of the act is “An act allowing parties in interest to be witnesses,” and that since the adoption of the Constitutional Amendment of 1864 the title must be regarded as a necessary part of a statute. We may admit this premise. In England the title is no part of a statute. Ld. Mansfield gives as a reason for this, that “ it does not pass with the same solemnity. One reading is often sufficient:" The King v. Williams, 1 W. Bl. 93. With us, however, it is always read three times. There may be good reason for holding that the title as well as the preamble may be resorted to for the purpose of assisting the construction, whenever the enacting clause is doubtful: see Cochran v. Library Co., 25 Legal Intel. 20. But it certainly is not to overrule or control it. The people did not mean by the amendment of 1864 to require that the title should be a full index to all the contents of the law, but by declaring that each bill shall be confined to one subject, which shall be clearly expressed in the title, to prohibit the vicious practice of rolling together what were termed “ Omnibus Bills,” including sometimes more than a hundred sections on entirely different subjects, with the title of the enactment of the first section, “ and for other purposes.” When the title, therefore, speaks of parties in interest, it was cognate with the subject to extend the law to “ persons” not parties,” and to'those who had before been excluded on the score of policy. The contention that by the necessary subjection of the wife, when offered by the husband as a witness to cross-examination by the adverse party, she will thereby be compelled to testify against him, certainly does great credit to the ingenuity of the counsel, but it is an argument which should properly have been addressed to the legislature, not to us. When a husband offers his wife as a witness in his favor, he certainly agrees that her testimony, though unfavorable, whether it comes out on examination in chief or cross-examination, shall be accredited to the jury, and it was for the lawmakers to consider what the effect of that might be upon domestic harmony. They have said that the adverse party shall not compel her to testify against her husband, but this is the only exception in this respect which they have seen fit to make to the rule that no interest or policy of law shall exclude a party or person from being a witness in any civil proceeding..

Judgment affirmed.