author: Gordon, J.

text:
    Todd versus Lorah.
    1. In order to allow firm property to be applied in payment of the individual debt of one partner, the consent of the other is necessary.
    2. Such consent may be inferred from a knowledge of the other partner that the goods are being so applied and his silence when he ought to speak, &e. ‘
    3. Knowledge alone of the application will not bind the other partner.
    4. By a case stated, it was agreed that a creditor of one partner agreed with him that he should buy firm goods and that they should be a set-off against the price of the goods and the set-oif was made ; the other partner knew that the goods were being bought on this condition, but “was no.t a party to the agreement and did not consent thereto.” Held, that the creditor was liable to the firm for the goods.
    January 20th 1874.
    Before Agnew, C. J., Merour and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery county: No. 280, to January Term 1874.
    A. K. Lorah, surviving partner of Willman & Lorah, brought an action before a justice of the peace against Dr. John Todd. After judgment there, it was removed into the Court of Common Pleas by appeal, on the 4th of January 1872, and the following case was stated by the parties and filed:—
    “ Dr. John Todd is a practising physician, and attended professionally Jacob Willman, the deceased partner, and his family from July 4th 1868, to December 25th 1869. During the latter part of this time, by the special request of Willman, the defendant bought clothing for himself and family of firm of Willman & Lorah, with the distinct and express understanding with Willman, that all that he bought should be a set-off pro tanto to his the defendant’s bill or demand against Willman; and such set-off actually was made by the parties. Had it not been for this agreement, the Doctor would have collected his claim long ago. Willman repeatedly urged the Doctor to buy more and he would fix it on the books of the firm as settled.
    “It is not denied that Lorah, the other partner, knew that the defendant was buying goods on these conditions. Lorah was not, however, a party to the above agreement, and did not consent thereto. Willman did the principal business, and lived in the same building where the store was.
    “The firm never attempted to collect, nor even asked the Doctor for this bill. It is admitted that the amount on the books of the firm: against the defendant, is forty dollars and thirty-two cents, and that the amount due the Doctor by Willman at the time of his decease was considerably more than this amount.
    “ It is further admitted that Willman sold these partnership goods to defendant as a part payment of his own individual debt, and the firm is solvent.

      “ If the court be of the opinion that the claim of defendant is under the above state of facts, a set-off to the demand of plaintiff, then judgment to 'be entered for the defendant, but if not, then judgment to be entered for plaintiff for forty dollars and thirty-two cents with interest from December 2d 1871.”
    The Court of Common Pleas (Ross, P. J.) entered judgment for the plaintiff for $41.32, with interest from December 2d 1871, according to the case stated.
    The defendant took a writ of error, and assigned the entering judgment for the plaintiff for error.

      J. O. G-otwalts and Gf. IV. Corson, for plaintiff in error,
    cited Browrigg v. Rae, 5 Exch. 489 ; Wallace v. Kelsall, 7 M. & W. 264; Gordon v. Ellis, 7 Man. & Gr. 609.

      S. K. Weand, for defendant in error.
   The opinion of the court was delivered, January 26th 1874, by

Gordon, J.

In the case stated, which was submitted to the court below for its decision, there is one controlling statement, that is, that Lorah, the partner of Willman, was not a party to the arrangement by which Dr. Todd was to get the goods of the firm in satisfaction of his bill against Willman, neither did he consent thereto. But this consent is exactly what is necessary in order to bind a firm to an arrangement by which the partnership assets are to be taken to pay an individual debt: Noble v. MeClintock, 2 W. & S. 152; Tanner v. Hall, 1 Barr 417; Purdy v. Powers, 6 Barr 494. Ordinarily this consent may be gathered from attendant circumstances, such as the knowledge of the other partners that the goods are so being appropriated, and their silent acquiescence in €ie transaction, when they ought in good faith to speak out and dissent. But we apprehend that knowledge alone would not be sufficient to bind the other member or members of the firm, and especially where the individual creditor is being regularly charged with the goods on the firm books, and there is no assumption thereof upon such books by the individual partner. Every one is bound to know that a partner has no right to appropriate the partnership property to the payment of his individual debts, and if one so deals with him, he must run the risk of the interposition of partnership rights.

Whatever difficulties might otherwise be raised in the interpretation of this case, they were, as we have already intimated, settled by the concession in the case stated, that Lorah did not consent to the arrangement between Willman and the defendant, and it is therefore certain that the firm was not compromised by it.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Bigony versus Tyson.
    1. Bigony gave to Tyson a bond in §1000 conditioned that Bigony should not “ practise medicine within five miles of S. in which place he has this day deeded certain property to said Tyson.” Held, that on the face of the bond the sum was a penalty and not liquidated damages.
    2. The intention of the parties gathered extra the instrument may fix the sum named in it as liquidated damages, and the facts and circumstances so gathered being parol, the question is for the jury.
    3. Circumstances in this case from which the intention that the sum was liquidated damages might be inferred.
    4. Burr v. Todd, 5 Wright 206, followed.
    January 20th 1874.
    Before Agnew, C. J., Mercur and Gordon. JJ. Sharswoob, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery county: Of July Term 1873, No. 72.
    This was an action of debt brought August 9th 1871, by Andrew R. Tyson against F. W. Bigony, for the breach of the condition of the following bond:—
    “ Know all men by these p?'esents, that I, Dr. Franklin W. Bigony, of, &c., am held and firmly bound unto Dr. Andrew R. Tyson, of the same place, in the sum of $1000, lawful money, to be paid to the same Andrew R. Tyson, &c., to which payment well and truly to be made, I do bind myself and my heirs, firmly by these presents, sealed with my seal and dated this seventeenth day of April, A. B. 1861.
    “The condition of this obligation is such, that if the above bounden Dr. F. W. Bigony shall well and do never practise medicine within five miles of the village of Skippackville, in which place he has this day deeded certain property to the said Andrew R. Tyson, the above obligation to be void, or else to be and remain in full force and virtue.”
    The plaintiff gave evidence that at the date of the bond the defendant conveyed to him a house and lot in Skippackville, at which he had resided and practised; the consideration stated in the deed (which was in evidence) was $4600, and at the time the plaintiff agreed to give defendant $1100 over what the property was worth, if he would give plaintiff a bond not to practise within five miles of Skippackville ; the plaintiff testified that he had paid $4600 for the house, lot and practice, in consideration that he would- give the bond not to practise. The plaintiff testified also that the defendant had practised considerably within the limits prescribed, and that plaintiff had given him notice to desist. There was evidence also of the extent to w'hich the defendant thus practised.
    The defendant testified that the house and lot sold by him to the plaintiff was worth the whole $4600, that nothing had been said about the $1100 spoken of by plaintiff; that he got nothing for the bond; after plaintiff accepted the deed and took the property, defendant gave him the bond; nothing but the house and lot were spoken of when plaintiff purchased.
    The court (Ross, P. J.) charged:—
    * * * “ The defendant has requested the court to charge you, that if, under the facts laid before you, governed by the principles of law which I have declared to you, you find that the plaintiff is entitled to recover for a breach of the condition of the bond, that you can only assess such damages as he has actually shown to have been sustained by him in consequence of its breach by the defendant. In other words, we are requested to charge you that the sum, designated in the bond, is merely a penalty, and not an amount agreed upon by the parties as liquidated damages. It is true that forfeitures are odious ; and it is equally true that courts will evade a construction which involves a forfeiture. But in this case, for reasons which are controlling, we decline to charge as thus requested by the defendant; and we say to you distinctly, that the sum designated in the bond, is to be deemed and treated as liquidated damages, and not as a penalty. If, therefore, under the facts as laid before you, under the law as to this class of contracts, as we have defined it, you find that the defendant has broken the condition of the bond, the plaintiff is entitled to recover as damages the full amount specified by the bond. In addition to this, he is also entitled to recover further damages as interest upon that amount which you will, in the event that your verdict is with the plaintiff, compute from the time when Dr. Bigony was notified to desist from his infringements upon the plaintiff’s rights, if you believe he practised within the prescribed limits at the time such notice was given, and if' he had not at that time, but after-wards, and before the day upon which this suit was commenced, then you will compute interest from that day.” * * *
    The verdict was for the plaintiff for $1118.16.
    A motion was made for a new trial and overruled.
    Some reference being made in the opinion of the Supreme Court to the opinion of the court below overruling the motion, a portion of the latter opinion is given, viz.:—
    * * * “ Still another test may be added, and that is the amount of the sum fixed. If it be wholly disproportion^ to the actual damage caused by breach of the condition, it is to be construed as a penalty. If on the other hand it represents a sum adequate to the payment of damages, and about commensurate with them, it indicates strongly that the sum was intended as liquidated damages. We will apply the tests indicated to the condition of this bond. The nature of the agreement seems to indicate the intention of the parties. An old, skilful and well-established physician was selling his house, office and practice to a young and untried gentleman. Competition was utterly ruinous to the latter, and this sum might reasonably have been fixed as the liquidated loss of the younger man if the older should violate his agreement. The nature of the case and the character of the bargain would then lead to the inference that this sum was designated as liquidated damages and not as a penalty. If a penalty under which continuous damages could have been recovered throughout the joint lives of the parties, it is entirely too small. Next, the uncertainty of the proof affords a strong and almost irresistible reason for concluding that the sum was named as liquidated damages. It by no means follows because a person in the prescribed circle was attended by Dr. Bigony, that if he had not practised there Dr. Tyson would have been the attending physician. Doctors abound throughout the land — or that all Dr. Tyson lost was the individual case treated by Dr. Bigony; but this uncertainty of proof affected also the measure of the damages and rendered it utterly impossible for any jury to determine what was the actual loss suffered by the plaintiff. This consideration, which under the proof was so clearly presented against construing the sum as a penalty, chiefly induced me, upon the trial, to construe it as liquidated damages. But these difficulties must have been on the minds of the parties, and induced them, in the language of Judge Mereur, ‘to make the damages the subject of previous adjustment.’
    “ Again, the condition left it optional with Dr. Bigony to practise medicine within five miles of Skippackville, if he chose to pay a certain sum for that privilege. This is clearly what the contract was; no chancellor would restrain him from pursuing his practice after he had repurchased his right by the payment of the stipulated sum of $1000. He had his choice, either not to practise or to do so upon paying $1000. He was not bound to pay the damage he caused the plaintiff as damages, eo nomine; that was waived, or in lieu of action to recover damages, the right to receive and the duty to pay $1000 was substituted.” * * *
    The defendant took out a Avrit of error, and assigned for error amongst others, that the court charged that the $1000 mentioned in the bond were liquidated' damages.

      H. U. Brunner and B. M. Boyer, for plaintiff in error.
    Stipulated damages can be, only when there is an unequivocal agreement to that effect: Robeson v. Whiteside, 16 S. & R. 322 ; Burr v. Todd, 5 Wright 212. Penalty is never construed to mean liquidated damages: Sedgwick on Meas, of Damages 399, 410 ; Tayloe v. Sandiford, 7 Wheaton 13; Davies v. Penton, 6 B. & C. 216. In the absence of evidence as to intention the sum is considered a penalty: Spear v. Smith, 1 Denio 464; Hoag v. McGinnis, 22 Wend. 163.

      F. March and Gr. W. Rogers, for defendant in error.
    In each case the language of the contract is to be considered and the intention gathered from its provisions and the circumstances, the ease or difficulty of measuring the damages, &c.; and from the whole gather what equity and good conscience would require: Streeper v. Williams, 12 Wright 454. If the stipulation is neither in name or substance a forfeiture or penalty, but a measure to determine what otherwise would be a loss or damage uncertain and difficult to be ascertained, it is liquidated damages': Wolf Creek Co. v. Schultz, 21 P. F. Smith 180; Sedgwick on Damages 449 ; Westerman v. Means, 2 Jones 97; Chitty on Contracts 977, &c.; Powell v. Burroughs, 4 P. F. Smith 329; Young v. White, 5 Watts 460; Shreve v. Brereton, 1 P. F. Smith 181; Pearson v. Williams, 26 Wend. 630.
   The opinion of the court was delivered, January 26th 1874, by

Gordon, J.

In Burr v. Todd, 5 Wright 206, it was held that a bond in the sum of two thousand dollars, with a condition that the obligor execute and deliver deeds for certain lands therein described, was a penalty conditioned for the-conveyance of the title, and not a liquidation of damages for a breach of condition. The bond in the case in hand is similar in its character to that above recited, the difference between the two being found only in the condition. In the one case it is for the conveyance of title; in the other, that Dr. Bigony shall not practise medicine within five miles of the village of Skippackville. Obviously, this difference cannot of itself affect the legal construction of the bond, but one rule must govern both, unless circumstances outside of the bond control that rule.

Justice Woodward, in delivering the opinion in the case above cited, says: “It is-impossible to regard it as liquidated damages for breach of condition. There is not a word in it to import an agreement of the parties to that effect.” In like manner, do we say of the bond in suit, there is not one word in it which imports an agreement of the parties that it should operate as a liquidation of damages for a breach of its condition.

Viewing it, then, from a legal stand-point, as did the judge below, when he instructed the jury “ that the sum designated in the bond is to be deemed and treated as liquidated damages, and not a penalty,” we can come to no other than a conclusion contrary to that at which he arrived, and say, this is none other than a penalty -designed to cover any damages the plaintiff might suffer by the defendant’s breach of the bond in practising within the prescribed limits. Any other interpretation would overthrow a well-settled rule of law, established by a multitude of decisions.

It is not to be understood, however, that we intend to impinge upon a rule just as well established as that above stated, that is, that the intention of the parties, gathered extra the written instrument, may control the technical rule as found upon the face of that instrument, and thus fix the sum therein mentioned as stipulated damages. But in the case in hand the facts and circumstances, which might hare thus altered the rule, rested wholly in parol, and therefore should hare been submitted to the jury.

A controlling circumstance would be the actual consideration of the bond, for this might go far to let us into the intention of the parties to it. There is no consideration whatever set out upon the face of the obligation, excepting that imported by the seal; and this being but technical, it can help us to no construction beyond that arising from the face of the instrument.

Had the jury found, what the court takes for granted, that the plaintiff, being a young physician, and hence having in view the serious difficulties he must encounter from the competition of an older one long settled in the place, paid the defendant eleven hundred dollars, or any other valuable consideration for the good-will of his practice, and that thereupon the bond in suit was executed, it might well have been inferred that the sum therein mentioned was intended as stipulated damages upon a breach thereof. And this the more so, in view of the difficulty of ascertaining with any degree of accuracy the actual damages resulting from the interference and competition of the defendant. But these important and controlling facts are disputed by the defendant. Indeed, if he is to be believed, he executed the bond without consideration— as a mere gratuity.

It is obvious, then, that this dispute, involving, as it does, the character of the obligation in controversy, can be settled only by a jury, and hence the court erred in charging as a matter of law, that the sum designated in the bond was to be deemed and treated as liquidated damages.

Judgment reversed, and a venire facias de novo awarded.


author: Agnew, C. J.

text:
    Paist et al. versus Caldwell.
    1. A naked power to submit a controversy to arbitration is revocable.
    _ 2. An agreement to submit which is in the nature of a contract, whereby rights are gained and lost and the submission is the moving consideration, is a compromise and cannot be revoked.
    3. Caldwell sued Paist and two others in assumpsit andPaistin covenant, both on the same transaction — the parties agreed to consolidate the cases and refer them finally. Held, that the submission was irrevocable.
    4. In the court below Paist asked to set aside the award; his rule was there discharged. Held,, upon writ of error, the Supreme Court could reach only matters of record.
    January 20th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.

      Error to the Court of Common Pleas of Chester county: No. 107, to July Term 1873.
    On the 20th of February 1872, Peter Caldwell brought an action of assumpsit against Edward Paist, George Mackey and Phineas Paist, on a promissory note for $500, made by the defendants to the plaintiffs. The record shows the following proceedings, amongst others:—
    “ Sept. 27. Defendants by their attorneys enter a rule of reference. Arbitrators to be chosen Oct. 26th 1872, &c.
    “ Oct. 26. It is agreed that the rule of reference in the above case be stricken off, that no rules of reference shall hereafter be. entered; that the case be stricken from the trial list for October Term 1872, and placed upon the trial list for trial at January Term 1873, in its proper place.
    “Feb. 4, 1870. A jury is impannelled and affirmed.
    “Feb. 5, 1873. Parties agree to consolidate this case with No. 67 to August Term 1871, and refer all matters in controversy to John Twaddle, Joseph Dowdall and William Evans, or any two of them agreeing, said arbitrators to meet at such time and place as may be agreed upon by the parties, or if they cannot agree, then by the arbitrators, the judgment to be entered upon the award to be final.
    “ April 21, 1873. Revocation of submission to referees filed by defendants.
    “ April 21, 1873. John Twaddle and Joseph Dowdall, two of the arbitrators, report, that they do award in favor of the plaintiff in the sum of $1000, and all costs incurred by the plaintiff in the suit referred to the arbitrators.
    “April 21, 1873. Report filed and judgment entered accordingly. * * *
    “ April 21, 1873. Revocation of submission and proof of service of same filed-
    “April 28, 1873. Affidavit filed, and on motion of Darlington &' Cornwell, a rule is granted on plaintiff, to show cause why the award of arbitrators shall not be set aside, and the judgment entered thereon be stricken off. Returnable at Adjourned Court in June 1873. * * *
    “July 2, 1873. Rule discharged.
    The submission was as follows:—
    “ Caldwell v. Paist, Mackey and Paist. Assumpsit.
    “ Caldwell v. Paist. Covenant.
    . “ It is hereby agreed that these two cases be consolidated, and as the defendant in the last-mentioned case wishes to be relieved of all obligation to take a conveyance of the real estate described m the declaration, that all matters in the controversy be, and the same are hereby, left and referred to John Twaddle, Joseph Dowdall and William Evans, of Willistown, or any two of them, agreeing who shall determine, under all the circumstances of the cases, and without reference to the pleadings, whether the defendants ought to pay to the plaintiff any sum of money, and if any, how much; that the said award, if against the defendants, or either of them, shall be made against all the defendants, the defendants to the note agreeing to be bound to pay whatever may be found due, 'f anything, by the said Edward Paist.
    “It is further agreed that the subject of costs in both suits, both past and future, shall be determined also by the said referees.
    “ It is also agreed that the said referees shall meet at such time and place as shall be appointed, either by the parties, or, if they •cannot agree, then by them, and, after hearing the said parties, their proofs and allegations, shall make a report or award, which award shall be returned to and filed in the office of the prothonotary of the court, who shall thereupon enter judgment on the award.
    “ It is further agreed that said judgment shall be final, and if any exceptions shall be taken thereto, the prothonotary shall strike them off.
    “ If the referees shall be of opinion that Edward Paist ought to recover damages of the said Peter Caldwell, on the allegation of the said plaintiff being unable to make title to the property, or failing to comply with his covenants, they shall so award. Witness our hands this 5th day of February, A. D. 1873.”
    The revocation and proof of service filed are as follows:—
    “We hereby revoke the submission to referees in the above stated cause. Edward Paist, Deft.
    John H. Brinton,
    Darlington & Cornwell,
    “ Attorneys for Paist, Mackey & Paist, defendants.
    “April 21st 1873.”
    “ Chester county, ss. R. T. Cornwell, of counsel for defendants, being affirmed, says that he filed the above revocation of record, and served a copy thereof upon the referees, and another upon the attorneys for the plaintiff, at about 9 o’clock and 45 minutes, A. M., April 21st 1873, before the conclusion of the trial before the referees, and before the submission had been executed by them. R. T. Cornwell.
    ‘ “Affirmed and subscribed, April 21st 1878, before
    “ John A. Rupert, Prothonotary.”
    The award was: “ We, two of the arbitrators in the within rulé named, report, that, pursuant to the submission and order in this case, the three arbitrators within named, met at the arbitration room in the borough of West Chester, in the county of Chester, on the 10th day of April, A. D. 1873, and after being sworn and affirmed, proceeded to hear the parties, their proofs and allegations, and adjourned to meet at the same place on the seventeenth day of the same month, at 10 o’clock in the forenoon of said day.
    “April 17th 1873, the subscribers met pursuant to adjournment, and again heard further the parties, their proofs and allegations, and adjourned again to meet at the same place, the 21st day of April 1873, at 10 o’clock in the forenoon of said last-mentioned day.
    “And now, this 21st day of April, A. d. 1873, the arbitrators again met, and having duly considered the proofs and allegations of the parties, we, two of the arbitrators, do award in favor of Peter Caldwell, the plaintiff, and against the said defendants, the sum of one thousand dollars, and all costs incurred by the plaintiff in the suit referred to the arbitrators.
    “ Witness our hands this 21st of April, A. d. 1873.
    John Twaddbll,
    Joseph Dowdall.”
    In discharging the rule, Butler, P. J., delivered this opinion: * * “ There is no doubt of the right to revoke a naked submission, if it be exercised in time. The courts have so decided, assimilating such submissions to any other naked power, granted without consideration. Whether, as is suggested in McGheehen v. Duffield, 5 Barr 499, there is such similarity between a mutual submission to arbitration and a naked power, might well be questioned, if it were not too late. We are confident the rule will not be extended. The observations of the court in Pollock v. Hall, 4 Dali. 222, where a plaintiff'sought to get rid of his submission by entering a discontinuance, are forcible and pertinent. The revocation of a submission, acted upon, tends to the increase and prolongation of strife, and generally to the prejudice of one of' the parties.— But where the submission contains more than a naked power to the referees — assumes the form and character of a contract — it is clearly not within the rule: Monongahcla Navigation Co. v. Fenlon, 4 W. & S. 205; McGheehen v. Duffield, 5 Barr 499; Hunt v. Rousmanier, 8 Wheat 174.
    “ In the case before us the submission contains an agreement that the case then on trial and near completion, should be withdrawn from the jury, that it, together with another between the same parties, should be consolidated; that the defendant in the latter suit should be relieved of his liability to have specific execution of his contract enforced, damages being provided for instead, and Mackey, one of the defendants in the first suit, becoming liable for their payment; that damages might also be awarded to Paist, one of the defendants, if it should appear that the plaintiff was in fault. Now how could the parties to this agreement revoke their obligations under it ? Each became entitled to have the two suits treated as one — tried together; Caldwell’s right to specific execution of the contract Avas yielded up ; Mackey became responsible for the damages that might be assessed against Paist; and Paist became entitled to have his damages assessed against the plaintiff, if any appeared. This was a valid contract; the consideration was ample; the rights yielded and the obligations assumed, constituting it. Neither party could rid himself of it by saying I will not submit. And this is none the less so because an agreement to -arbitrate accompanies the other stipulations. The agreement to arbitrate itself thus became irrevocable, and lost its character of a naked power to the referees.”
    The defendants took a writ of error, and assigned for error, that the court erred in discharging the rule, and in not setting aside the award and striking off the judgment entered thereon.

      R. T. Cornwell and J. H. Brinton (with whom was W. Darlington), for plaintiff in error.
    A voluntary submission to referees may be revoked, before its execution, whether it be by deed, parol or rule of court: Vynior’s Case, 8 Rep. 162 ; Power v. Power, 7 Watts 205; Wilson v. Young, 9 Barr 101; Bingham’s Trustees v. Guthrie, 7 Harris 423; Coleman v. Grubb, 11 Id. 393; Wood v. Finn, 3 Penn’a Law Journal 31; 2 Chitty’s Practice 79, 80, 86, 87-102; Allen v. Watson, 16 Johns. 205; 2 Tidd’s Prac. 748; Kyd on Awards 16; McGheehen v. Duffield, 5 Barr 499.

      J. J. Pinkerton and J. J. Lewis, for defendant in error.
    The evidence on Avhich the court below acted does not and cannot in such a proceeding appear of record; the Supreme Court therefore cannot determine whether any error Avas committed or not: Guthrie v. Wilson, 4 Wright 430. The presumption is, that the court below did right, and that presumption will stand until something appears of sufficient force to overthrow it; and there is a judgment entered by the prothonotary by authority of the parties to it, which cannot properly be questioned : Cook v. Gilbert, 8 S. & R. 567; McCalmont v. Peters, 13 S. & R. 197 ; Gallup v. Reynolds, 8 Watts 424; McGheehen v. Duffield, 5 Barr 497; Yates v. Russell, 17 Johns. R. 466. The Court of Common Pleas has no power to strike from the-docket summarily a judgment regularly entered : Horner & McCann v. Hower, 3 Wright 126.
    The defendants by this agreement have elected their forum, and bound themselves to take their chances before it: Wynn v. Bellas, 10 Casey 160 ; Monongahela Navigation Company v. Fenlon, 4 W. & S. 205 ; O’Reilly v. Kerns, 2 P. F. Smith 214 ; Reynolds v. Caldwell, 1 Id. 298; Howard v. The Allegheny Valley R. R. Co., 19 Id. 489; Wright v. Nutt, 1 T. R. 333; Camden v. Edie, 1 H. Blackst. 21; Farrington v. Hamblin, 12 Wendell 214.
   The opinion of the court was delivered, January 26th 1874, by

Agnew, C. J.

What is termed a naked power to refer a subject of controversy to arbitration, is undoubtedly revocable. But where the agreement partakes of the nature of a contract, whereby important rights are gained and lost reciprocally, and the submission is the moving consideration to these acts, a different rule prevails. Such agreements are compromises, and should be faithfully adhered to, unless there has been fraud or corruption, or gross misbehavior by the referees. Interest veipublicce ut sit finis litium. The agreement before us is of the latter class. Two suits were pending, one in covenant against the defendant as purchaser on the contract of sale, the other in assumpsit on a note given by the defendant with sureties upon the contract. The parties agreed to consolidate these actions and try them before referees, who should render a final award whether the defendant should pay anything, and if any, how much, and the sureties agreed to become responsible for this entire final sum, while the defendant should be relieved from the obligation to take any conveyance under the contract of sale. Here valuable rights were released and acquired on each side, and the effect of the settlement on this basis was to put an end to litigation ruinous to both sides, for the original contract of sale had become involved in inextricable difficulties. Under such circumstances, it was not in the power of the defendant at the last moment, and after the referees had gone far into the case, suddenly to give a notice of revocation, and avert a result. This is sufficient for the case; but we may add by way of caution, that it is doubtful whether anything is in the record which would enable us to reach the facts of the case. There is no appeal, and the writ of error reaches only matters upon the record.

Judgment affirmed.


text:
    Maxton versus Gheen et al.

    1. A transaction in stocks by way of margin, settlement of differences and payment of gain or loss, without intending to deliver the stocks, is a mere wager.
    2. Where there was a contract to buy and sell stocks which were delivered and the contract carried into execution, it was not illegal.
    January 21st 1874.
    Before Agnew, C. J., Mercur, and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Chester county: Of July Term 1873, No. 151.

      This was an action of assumpsit brought December 16th 1878, by Francis H. Gheen and William H. Morgan, trading as Gheen & Morgan, against Lewis Maxton.
    The plaintiffs were stock-brokers in West Chester, Pennsylvania, and had been employed by the defendant to purchase and sell stocks for him; at the conclusion of their transactions the plaintiffs alleged that the defendant owed them a balance of $322.04, for which they brought this suit; the defence was that the transaction was a gambling in stocks, and therefore, being illegal, the plaintiffs could not recover.
    The case was tried May 9th 1873, before Butler, P. J.
    Morgan, one of the plaintiffs, testified as to a • number of purchases and sales for the defendant by his order ; of payments of cash by him, and the amount of the commissions charged by them he further testified (referring to the entries in their book as he proceeded):—
    “ Defendant generally gave the order in person; the first order was to sell stock; the stock was delivered at the end of the sixty days by our brokers, De Haven & Brother; he had not the stock on hand at the time, but we did not know it; at the end of the sixty days he directed us to buy 200 shares of stock and deliver on the sale he had made, and we did so. The sale had been made to Hilburn & Jones, April 17th; the 100 shares were sold to Fisher & Brother, at sixty days; at the end of sixty- days, it was delivered by De Haven & Brother; he directed us to buy it in, and we did so. June 6th, on that day sold 200 shares to Fell & Brother, seller sixty; at the end of the time we bought that in at the board; De Haven & Co. bought that for us August 4th; our advice does not tell who that was sold to; we had advice from our Philadelphia broker that the stock was sold; at the end of the time that was bought at the request of Mr. Maxton and delivered. On June 16th, the 100 shares were sold to O. T. Yerkes & Co.; were delivered at the end of the sixty days; they were bought in upon the order of Lewis Maxton. Did not buy of Yerkes & Co.-as we know of; we ordered it bought at the board; we do not know where we bought the stock. August 17th, that is on the same footing as the other; we were not advised who to; that was bought in at the same direction and delivered in the same way; we advised Mr. Maxton of these transactions when they occurred, sometimes by mail, sometimes in person; we sent all the orders to Philadelphia to be executed, and generally by telegraph; in every instance the stock was delivered ; his losses were more than the balance; his credits as cash indicate what he paid us; I cannot tell whether he ever ordered us to purchase when he did not have the money in our hands.”
    Being cross-examined, he said: “These transactions are what are known as selling stock short. I did not know he had not the stock until lie ordered us to buy at the end of the time, to fill the order, nor at the time of the second sale; I did not know in either case that he had not the stock. He had been dealing in stock before in Reading; that is, bought it and I think held it awhile at one time; we had furnished him several different investments. The first credit was a balance from the preceding year; I considered this a margin — the cash in hand. When we sell stock short, we require from two to ten dollars per share as a margin, unless the party leaves the stock with us ; we require this margin whether the seller owns the stock or not, if it is not left with us to cover our responsibility to the purchaser ; after the second sale I knew he was selling short.”
    Being re-examined, he said: “ The balance, our claim, is for money advanced and one-half the commissions, which we have paid to our correspondents, brokers in the city, De Haven & Bro.” .The defendant requested the court to charge the jury that the plaintiff cannot recover on the evidence.
    The court reserved the point, and submitted the case to the jury on the evidence. They found a verdict for the plaintiffs for $342.84.
    The court afterwards entered judgment for the plaintiffs on the verdict on the point reserved.
    The defendant took a writ of error, and assigned for error the refusal to affirm his point.

      J. F. Perdue, for plaintiffs in error.
    This transaction was selling stock “short,” and is one prohibited by the common law of Pennsylvania: Pritchett v. Insurance Company of North America, 3 Yeates 458; Edgell v. McLaughlin, 6 Wharton 178. This is a wagering contract, and cannot be enforced in this Commonwealth: Brua’s Appeal, 5 P. F. Smith 294; Smith v. Bouvier, 20 Id. 325; Kirkpatrick v. Bonsall, 22 Id. 155.

      G. F. Smith, for defendants in error,
    was stopped by the court.
   The opinion of the court was delivered, January 26th 1874, by

Agnew, C. J.

This was not a transaction in stocks by way of margin, settlement of differences, and payment of the gain or loss, without any intention to deliver the stocks. Such transactions are-mere wagers. But here the stock was in every instance actually sold and delivered, and the transaction carried into final execution. The plaintiffs, who were the brokers of the defendant, were not even aware that he was selling “ short” until the term of credit was expiring, and he bought to fill his sales. It will not do to say, because there is so much gambling in stocks, that every sale “short” as it is termed, is ipso facto a wager. It is evidence, it is true, but there must be other facts to characterize the transaction, and to show the actual intent of the parties was to wager merely upon the prospective price. Judgment affirmed.


text:
    Bartholomew’s Appeal.

      1. A testator by his will gave “to my sons John (and three others) each an equal share of the balance of my estate,” &e. By a codicil he provided : “ and whereas in my said will I have given unto my son John, an equal share of all my net estate, real and personal, with my other children, I do hereby declare that my will is that the said legacy or equal share be paid by my executors unto my daughter-in-law, Martha, the wife of my said son, John Bartholomew, Jr., her heirs and assigns, at the time distribution is made to my other heirs, and I do hereby ratify and confirm my said will in all other respects.” Held, the codicil revoked the bequest to John.
    2. The codicil was not a substitution by which Martha became substituted for John by operation of law.
    3. John was indebted to the testator, Martha took the full share not subject to his debts.
    4. The codicil produced the same result as if John had not been mentioned. Per Butler, P. J.
    5. Where the language in a will is plain, the intention is to be gathered from the language. Id.

    January 21st 1874.
    Before A&new, C. J., Mercur, and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Orphans’ Court of Chester county: No. 190, to January Term 1874. In the distribution of the estate of John Bartholomew, deceased.
    John Bartholomew, the decedent, died May 11th 1871, having made a will dated September 12th 1870, and a codicil dated May 2d 1870. Letters testamentary were granted June 2d 1871 to Benjamin Bartholomew, Jonathan Roberts and William L. Lee, the executors named in the will.
    By his will he provided, amongst other things, as follows :—
    * * * “ I give and bequeath unto my beloved wife Lydia Bartholomew the sum of two hundred dollars, annually to be paid unto her by my executors hereinafter named, in lieu of dower; said executors are hereby empowered to invest safely the sum of $3338.34) out 'of my estate, the interest arising therefrom to be applied to the payment of the above-mentioned annuity. * * *
    “ I give and bequeath unto my sons Benjamin Bartholomew and John Bartholomew, Jr., and to my daughters Mary Emily (intermarried with Wallace Henderson), and Lydia Ann (intermarried with William L. Lee), each an equal share of the balance of my estate, after the aforesaid debts and legacies are paid, together with an equal share each of the aforesaid sum of three thousand three hundred and thirty-three dollars and thirty-four cents, after the decease of my said wife Lydia Bartholomew.”
    The codicil is: “ I, John Bartholomew, the within-named testator, do hereby make and publish this codicil to my last will and testament, bearing date the twelfth day of September, A. d. one thousand eight hundred and seventy, -in manner and forjn as follows, to wit: And whereas, in my said last will, I have giVen and bequeathed unto my son John Bartholomew, Jr., an equal share of all my net estate, real and personal, with my other children, I do hereby declare that my will is, the said legacy or equal share be paid by my said executors unto my daughter-in-law Martha, the wife of my said son John, her heirs and assigns, at the time distribution is made to my other heirs.”
    Martha, the wife of John, afterwards died, having made a will, of which W. I). H. Serrill is the executor.
    The executors settled their account, showing in their hands a balance of $12,553.54, and D. Smith Talbot, Esq., was appointed auditor to report distribution.
    The auditor found that, at the time of the testator’s death, his son John was indebted to him in an amount much more than the amount of his share of the balance under the will would be.
    He further reported:— * * *
    “ Now what portion of his will did the testator intend to change by his codicil ? Evidently only the person who was to receive ‘John’s share,’ instead of ‘John’ himself. His language is: ‘Whereas, I have given and bequeathed unto my son John Bartholomew, Jr., an equal share of all my net estate, real and personal, with my other children, my will is that the said legacy or equal share be paid unto my daughter-in-law, the wife of my son John, her heirs and assigns, &e.’ Could he have intended by these words to enlarge the bounty to his daughter-in-law, to bestow upon her, a stranger in blood, double the portion he had. given to his own children ? • By no means; for he says that he had given to his son John ‘ an equal share with my other children,’ and that identical equal share he gives to Martha, the wife of his son. He knew what John’s indebtedness to him amounted to; he knew that John’s debts must first be paid out of his share, or if he did not know this, the law construes his will to effect this result, and consequently the share of his other three children would be increased by the amount of John’s debts to the estate, which would have to be paid before any equalization of his bounty to his four children could be effected.
    “ The same principle of equalization was evidently in his mind when he executed the codicil, for John was only to have an equal share with his other children, and Martha was to be paid John’s share, and he ratified and confirmed his said will in all other respects. If the testator had entirely revoked that portion of his will by which he gave John an equal share with his other children, and had then in his codicil bequeathed to his daughter-in-law absolutely, the fourth part of his residuary estate, there might have been some ground for the construction of the codicil contended for by the wife of John; but the bequest to Martha is restricted by such plain and unmistakable language to the balance due to her husband after payment of his debts, that the auditor can arrive at no other conclusion than that it was the testator’s intention merely to substitute Martha in the place of her husband, without increasing the quantity of his estate to that branch of his heirs.
    ^ fe * ifc
    “ It appears that John’s debts will not only amount to the fourth part of the residuum presently distributable, but also his share of the remainder at the widow’s death. No portion of the estate, therefore, can be awarded to Martha Bartholomew, but each of the two funds must be divided into three parts and distributed to the three children above named.”
    Exceptions to the report of the auditor were filed by the executors, &c., of Martha Bartholomew. They were sustained, Butler, P. J., delivering the following opinion:—
    ■ “ The testator bequeathed one £ equal share ’ of the balance of his estate — being one-fourth — to his son John. By a codicil he revoked this bequest, and gave the same £ equal share ’ to his daughter-in-law, Martha, wife of John. The result of this is the same as if John had not been mentioned. The circumstance that Martha is his wife, and that the bequest was originally to him, is of no importance. If it had remained to him, it would have afforded means for the payment of his debt, and the executors could have applied it by way of set-off. But now that it is hers it cannot be so applied.
    ££ It is said this view will work injustice to the other children, and that the testator .cannot therefore have contemplated it. But it is quite as difficult to believe that when he gave Martha this legacy, he contemplated that it should be applied to somebody else’s debt, and she get nothing. It is supposed he intended to give her what John would have received on settlement with the executors. But he does not say so. On the contrary, he designates the proportion she is to have, to wit: ‘ one equal share ’ with Benjamin, Mary and Lydia. This may or may not be the same that John would have received on settlement. If he had previously paid the debt, or the statute of limitation or presumption of payment had run against it, he would have received the same ; otherwise he would have received nothing. But in either case he would have gotten the entire legacy — the one-fourth. For whether the debt be paid from the legacy or from some other source, the result is the same to him. If we adopt the auditor’s view, John will still get the legacy, notwithstanding the testator’s change of mind. It will discharge his indebtedness, and the property he may acquire hereafter will be at his own disposal. The claim of the executors will be extinguished with the wife’s legacy, and no matter what his means may be, she will get nothing. If he possessed prop*erty at this time it would not be pretended that the debt should be paid from her legacy. How can the circumstance that he does not, affect her rights ?

      “ The auditor’s error grows out of the supposition that the bequest to John was simply of the balance, after deducting his indebtedness ; and that it is this balance which is given to Martha. This, as we have seen, is a mistake in both respects. The bequest to John was of the one-fourth — ‘one equal share’ — with Benjamin, Mary and Lydia, of the balance of estate. What is the balance of estate ? Clearly what remains of available assets after paying debts, and the legacies previously mentioned. The worthless debts of an insolvent obligor do not enter into it, whether he be a son of the testator or a stranger. If the bequest had remained to John then his indebtedness to the estate would have been available and have entered into the ‘balance.’ And, as before stated, the debt could have been collected by means of set-off. But this circumstance — that his obligations could have been used in making payment, — does not reduce the amount of the legacy. It would still be the one-fourth of the balance of estate. And it is this one-fourth which is given to her.
    “The intentions of a testator are to govern of course. But where the language is plain the intention is to be gathered from it. And here it is plain, designating precisely what proportion of the estate the legatee is to have. We cannot disregard it because we may suppose 'injustice will result, and that something else must therefore have been intended. Were Ave to look for the intention here, outside the terms used, we are not sure we would agree Avith the auditor. It is said the testator must be presumed to have known the law, the effects of what he did, and that John was thriftless and insolvent. He is quite as likely to have known the extent of his own estate, for it Avas small. And if he did know these things, then he also knew that his bequest to John would be fruitless ; and if he intended Martha to take simply what John would have received on settlement — nothing—he would hardly have troubled 'himself to change the bequest to her. It might be said, therefore, the fact that he did change it raises an inference that he desired to avoid this result, and provided something for the family of this penniless and thriftless son. But Ave cannot know his secret motives; and while his language is plain, are not at liberty to guess at them.
    “And now, to wit, September 29th 1873, the exceptions to the report of the auditor in the matter of the estate of John Bartholomew deceased, having been argued and considered, the court do, for the reasons given in the opinion filed, reverse the report of the auditor so far. as to allow W. D. H. Serrill, executor of Martha Bartholomew, deceased, to participate in the distribution of the estate" of said deceased, and receive the one-fourth part thereof payable presently, and the one-fourth part thereof payable after the death of the widow, and that the executors of said deceased be ordered to pay out the balance in their hands according to the annexed amended schedule of distribution.” * * *
    Benjamin Bartholomew and the other residuary legatees appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.

      W. M. Hayes, for appellants.
    Equality of disposition by parents to children is to be favored, and doubtful words should be solved to attain it: Horwitz v. Norris, 10 P. F. Smith 261; Malone v. Bobbins, 11 Harris 296.
    A knowledge of the circumstances under which a will was made, and the state of a testator’s property or family, is of great assistance to the court in the construction of it: Rewalt v. Ulrich, 11 Harris 388; Earp’s Will, 1 Parsons R. 457; Postlethwaite’s Appeal, 18 P. F. Smith 478.

      W. B. Waddell, for appellee, was stopped by the court.
   The opinion of the court was delivered, January 26th 1874, by

Agnew, C. J.

We perceive no error in this decree.- The bequest to Martha, the wife of John Bartholomew, in the codicil to the testator’s will, was evidently a revocation of that to John in the original will. The fact that she is John’s wife does not change her right, and make her legacy liable to John’s debts to the testator. It is not a case of legal substitution, whereby one person becomes substituted to the right of another by operation of law, but it is a case of change in the intention of the testator, whereby he suffered one person to drop out of his will and another to fall in. The very change of intention contradicts the idea of mere substitution. John was left to stand where he stood before, a debtor to the estate, and Martha was given 'the bequest in, her own right, not in his. Judge Butler’s opinion is quite satisfactory.

Decree affirmed and appeal dismissed with costs.


text:
    Broomall’s Appeal.
    1. County commissioners contracted for the erection of a county bridge and inspectors reported upon it. Held, that tax-payers of the county had no standing to except to the report.
    2. In making contracts for bridges and all proceedings relating to them, the commissioners are the sole representatives of the county.
    3. There is no appeal to the Supreme Court from the order of the Quarter Sessions confirming the report of inspectors on a county bridge.
    January 22d 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.

      Appeal from the Court of Quarter Sessions of Delaware county: No. 223, to January Term 1874.
    On the 29th of February 1872, a number of citizens of Delaware county petitioned the Court of Quarter Sessions for a view for a county bridge over Chester creek, in the city of Chester. Viewers were appointed who reported in favor of a bridge; the grand jury concurred and the bridge was entered of record as a county bridge. The county commmissioners then entered into a contract for building the bridge, at the contract price of $33,000 ; and, the bridge having been finished, they asked the court to appoint inspectors to inspect the bridge and report., On the 24th of November 1873, the inspectors reported that they did not approve of the bridge and that $673.12 should be deducted; that the commissioners contracted for extra work amounting to $3480.99; that there should be deducted from the last contract, $524.02, and the bridge was worth $35,283.85. On the 4th of December J. M. Broomall and others, “ tax-payers and citizens of Delaware county, ” filed exceptions to the report of the inspectors. On the same day the contractors and the county commissioners filed an agreement, that the report of the inspectors be finally confirmed and the bridge approved by the court without delay; both parties waiving all objections and exceptions to the report. The agreement was- withdrawn the same day. On the 5th of December, the contractors filed exceptions to the report of the commissioners. On the 22d of December, the agreement of the 4th, between the contractors and the commissioners, was again filed, and on the same day the court (Butler, P. J.) made this decree : “ The above stated matter having come on for hearing, and the commissioners of said county and the contractors for said .bridge having by a written agreement filed, requested the court to confirm the report of said jury and to approve said bridge, the exceptions filed by Messrs. Broomall, Wheaton, Bradley Bros, and Weidner, the rule taken upon the contractors, and the exceptions filed by them are dismissed, the report of said jury is hereby confirmed, and the aforesaid bridge is hereby approved, subject to the deductions reported by said jury. ”
    The exceptors appealed to the Supreme Court, and assigned the decree of the court below for error.

      W. Ward (with whom were O. Harvey and W. B. Broomall), for appellants.
    Tax-payers have a standing to contest these proceedings for defects apparent on the record : New Holland Turnpike v. Lancaster County, 21 P. F. Smith 442 ; Page v. Allen, 8 Id. 338; Patterson v. Barlow, 10 Id. 54; Sharpless v. Philadelphia, 9 Harris 157 ; Moers v. Reading, Id. 188; 2 Dillon on Municipal Corporations, sect. 731.

      JE. A. Price (with whom was W. Darlington), for appellees.—
    No third person can intervene between the commissioners and contractors, who are the only parties; their differences are to be settled under the provisions of the Road Law of 1836. The county auditors determine between the county and the commissioners, and their settlement, unless appealed from, is final: Blackmore v. Allegheny County, 1 P. F. Smith 162.
   The opinion of the court was delivered, January 26th 1874, by

Agnew, C. J.

By the Act of 15th April 1834, Brightly’s Dig. 295, counties are made corporations for the purpose of suing and being sued, &c., and the corporate powers are required to be exercised by the commissioners. All suits are also to be brought and conducted by the commissioners, and process shall be served upon, and defence made by them. Among their powers is that to make contracts for county purposes, and for all objects and purposes authorized by law. In regard to the specific subject of county bridges, the duties concerning them are also laid upon the commissioners, so that in making contracts for bridges, and in all proceedings relative to the same, the commissioners alone are the representatives of the county. The proceeding in relation to the inspection of bridges, to ascertain the proper execution of the contract of the builder, is one at law, and to it the commissioners are made the parties to represent the county. It is clear, from the entire course of legislation, both general and special, the commissioners only can conduct the proceeding in this case, and tax-payers have no standing. The proceeding is not one under that head of equity which empowers the court to enjoin against wrongful and injurious acts prejudicial to the community, or to the rights of individuals, where, because of the want of an adequate remedy at law, tax-payers have been permitted to sue in protection of their rights of property against illegal taxation or wrongful acts of injury. Hence the appellants have no standing in court, if, indeed, there were an appeal. But none is given to this court in the case of a bridge inspection, and the writ of certiorari could be issued only by the commissioners. The writ must, therefore, be quashed.

Writ of certiorari quashed at the costs of the so-called appellants.


author: Mercur, J.

text:
    Maxson & Wolfenden's Appeal.
    1. Mcllvaine contracted, to sell land to Green, who went into possession and mortgaged his interest; the mortgage was assigned to Lindsay, who issued a scire facias, pending which Mcllvaine brought ejectment against him to enforce payment of the purchase-money and had an award in his favor to be released on payment in three weeks; within that time Lindsay asked to be allowed to defend, averring the award was for more than was due ; he also appealed; after the three weeks Mcllvaine abated the excess and the court struck off the appeal, no order being made allowing more time. Green delivered possession to Mcllvaine, who sold to Blaisdell. Lindsay purchased Green’s' interest at sheriff’s sale under his mortgage ; Blaisdell sold to Maxson, seven months after the award and five after the appeal was struck off; Lindsay tendered the amount of the award to Maxson and demanded a conveyance, which being refused he brought a bill for specific execution of Mcllvaine’s contract with Green. Held, that Green’s equitable interest was extinguished when the award became absolute, and Lindsay standing in his place could not compel a conveyance.
    2. The only judicial decision as to the time of payment to prevent a forfeiture was that in the award.
    3. The proper time to ask an extension of time for payment was when the appeal was struck off; but it seems that the court could afterwards have extended the payment not longer than three weeks from that time in accordance with the spirit of the award.
    4. Whenever the time was not changed by the subsequent action of the court it was in full force.
    5. Mcllvaine holding the legal title was not bound to make the mortgagee a party; he had a lien only on Green’s equity.
    6. Damon v. Bache, 5 P. B. Smith 67, followed.
    January 22d 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Delaware county: In Equity : No. 225, to January Term 1874.
    This was a bill in equity by Joseph Lindsay against John Maxson and Daniel Wolfenden, to enforce the specific execution of a contract for the sale of a factory and lot of ground in the city of Chester.
    The contract was between Spencer Mcllvaine and John J. Green. The plaintiff claimed under a sheriff’s sale of the equitable title of Green: the defendants claimed under a recovery by Mcllvaine, the vendor, in an ejectment brought by him to enforce the payment of the purchase-money due on the original contract.
    On the 2d of January 1865, Spencer Mcllvaine entered into an agreement in writing to sell to John J. Green the factory and lot for $13,370.62, of which $1190.62 were paid down, and the remainder made payable in instalments within ten years. Green went into possession under this contract. On the 22d of September 1866, he executed a mortgage to Rhoads & Freeman of his interest in the lot and factory, and also of the machinery and fixtures in the factory to secure the payment of $15,000 with interest in four years ; this mortgage was assigned to Lindsay the plaintiff May 16th 1867. Afterwards John J. Green conveyed his interest in the contract to James C. Green. On the 31st of October 1870, the plaintiff issued a scire facias on the mortgage against John J. Green, mortgagor, and James C. Green, terre-tenant; a defence was made by the defendants to the scire facias.
    On the 21st of January 1871, Mcllvaine brought an ejectment against James 0. Green to enforce the payment of some of the instalments of the purchase-money which had become due; no defence was made, and on the 23d of February 1871, Mcllvaine obtained an award of arbitrators, “ to be released if the defendant pay to plaintiff $12,961.17 within three weeks of the date of the award, and in case of such payment the plaintiff shall make a full conveyance of the land in fee simple.”
    On the 13th of March, Lindsay the plaintiff petitioned the court averring the amount stated in the award was more than was due to Mcllvaine and asking to be allowed to come in and defend in the ejectment. The record did not show that any action was taken on this application. On the 14th of March, Lindsay appealed from the award, and a rule was taken to strike off the appeal. On the 20th of April, Mcllvaine having agreed to reduce the amount named in the award of arbitrators by the sum of $887.51, the sum which Lindsay claimed was the excess, thus making the amount due on the contract $12,013.63, the rule was made absolute and the appeal stricken off. Green then delivered possession to Mcllvaine without an habere facias, who on the 21st of May conveyed the property to Blaisdell for $13,090.78; the amount of the award before it was abated with interest added.
    On the 27th of July 1871, the plaintiff — having prosecuted the scire facias on his mortgage against Green with due diligence— recovered a judgment, issued a levari facias under which he purchased the factory and lot at sheriff’s sale on the 24th of August 1871.
    ■ On the 14th of September 1871, Blaisdell conveyed the premises to the defendants, for the consideration of $22,500; this consideration was made up of the purchase-money paid to Mcllvaine, a judgment held by Blaisdell against Green and some expenses which he had incurred.
    On the 20th of September 1871, Lindsay tendered to the attorney of Mcllvaine $12,073.60, with interest and costs, the sum to which the award had been reduced and demanded a conveyance; he continued ready and willing to pay the money, but the defendants had refused to receive it and convey.
    These facts found by the master, A. Lewis Smith, Esq., are substantially those set out in the plaintiff’s bill.
    The defendants contended that Green’s rights under the contract were extinguished by the judgment in the ejectment and the failure of either Lindsay or Green to pay the amount awarded within the time limited by the award an indefeasible title in fee simple had vested in them.
    The master, after an elaborate examination of the facts and the application of the law to them, reported in conclusion:—
    * * * “A careful consideration of the case has led me to conclude, that in no event is Mr. Lindsay entitled to a decree for specific performance in this case, and I am clearly of the opinion that the bill should be dismissed.
    44 Lindsay has, in the master’s opinion, rights yet unbarred, rights under the judgment in the ejectment, but those rights cannot be asserted here, for reasons that seem too well settled in authority.
    44 It is conceded that the ejectment brought by Mcllvaine against Green was one of the class known as4 equitable ejectments,’ and was instituted to recover the amount of purchase-money remaining due on the contract of sale, or otherwise to rescind the contract. It will not indeed lie in the mouth of the plaintiff in this bill to say that such is not the case. Eor if the ejectment at any time involved other elements than this, they were eliminated at his instance, and the amount named in the award was upon his intervention shorn down to the exact balance of purchase-money due upon the articles of agreement, with interest. The enforcement of this contract is therefore res adjudieata, and cannot, upon well settled principles, be the subject of another action, whether legal or equitable. * * * Lewis, C. J., referring to this kind of ejectment, says, it is not any ordinary judgment at law. It is regarded as containing also the substance of a decree in equity for the payment of the money party and the conveyance of the land by another. It follows that the remedies of the parties respectively must be confined to proceedings founded on that judgment. If the defendant paid the money, according to the condition, it would be the duty of the court which rendered the judgment, to compel the conveyance of the land. If he failed to pay the money, the same court would grant leave to issue hab. fac. poss. to deliver possession of the land to the plaintiff. The mere circumstance that the condition of the award in the ejectment suit is an uncertain one, does not at all impair the quality of the award itself as an adjudication of the question involved in the present suit. * * *
    44 The only method in which Lindsay can escape from the effect of ejectment, is by showing that he was neither a party nor privy to it. After putting himself on the record as an appellant from the award in that very case, he would seem to be estopped from asserting that he was not a party; but apart from that, and upon considerations hereinbefore stated, it has been seen that his rights as a privy can rest no higher than those of Green, under whom he claims, and with whom he must stand or fall with the exception that he is not to be prejudiced by any act of Green which can be construed to be in fraud of his rights as mortgagee, such as the premature delivery of his possessions to Mcllvaine; and no such fraudulent act was shown to have been done up to the final judgment in the ejectment. If, therefore, Mr. Lindsay has any rights, arising out of the contract of sale, between Mcllvaine and Green, not yet extinguished, his remedy for asserting them must be confined to proceedings founded on that judgment. And upon a proper showing to the court, in that case, that the time within which he was entitled to pay the amount named in the judgment of the court, was not specified, and was only limited to what was reasonable under the circumstances of the case, and that he is ready, or has offered to pay the amount within such reasonable time, or if it become important in the opinion of the court to show that he did in point of fact tender (as he alleges) the proper amount of the award to Mcllvaine within the three weeks therein named, or at least, within three weeks after final judgment, and he can show it, it is not doubted that his claims will receive all the consideration to which they are entitled. And if he is entitled, upon yet paying the money, to a conveyance, it is certainly within the power of the court in that case to compel one.* * *
    “ The master therefore feels reluctantly compelled to report that the plaintiff’s bill should be dismissed.”
    Exceptions were filed to the report; pending which the plaintiff asked leave to file an amended bill; leave was so granted and the amended bill was filed. It set out substantially as in the original bill, and further—
    “ 12. That at the time of the conveyance of Blaisdell to the defendants, he gave them a bond of indemnity against any defect in the title and against loss in expenditure for improvements, &c.
    “ 13. Mcllvaine was aware of the mortgage held by Lindsay, before he commenced the action of ejectment. Blaisdell knew of it before he purchased from Mcllvaine, and knew that process had been issued upon it, and Maxson & Wolfenden were aware when they purchased, that the estate and interest of Green had been sold by the sheriff under Lindsay’s mortgage and purchased by him.
    “14. Before the expiration of the three weeks named in the award in the case of Mcllvaine v. Green, the plaintiff at several times offered to pay Mcllvaine the proper amount of the award, and requested him to convey the legal title to the plaintiff. But Mcllvaine refused to do so, stating that he could not convey the same to any one without John J. Green’s consent, which would not be given to a conveyance to the plaintiff.
    “ 15. On the 20th of September 1871, the plaintiff tendered to the defendants the sum of $12,073.63, the amount of the reduced award in the ejectment, Mcllvaine v. Green, with interest and costs of suit, and demanding a deed in fee simple of their legal title in the premises; but the defendants refused to receive the same, or to convey the said title.
    “ 16. The plaintiff has always been, and still is ready and hereby offers to pay to the defendants the said sum of $12,073.63, with interest and costs of their ejectment suit, and to receive a conveyance of the legal title to the premises in fee simple, as directed by the award of arbitrators in that ease.
    “ No time having- been fixed by the court for the payment of the said sum of $12,073.33, the amount to which the sum fixed by the arbitrators was reduced by Mcllvaine, on the 20th of April 1871, and the said James C. Green and Joseph Lindsay, the mortgagee, and purchaser of his interest in the premises, being at liberty to pay the same, at a reasonable time thereafter, and the plaintiff having offered at various times to pay the said money to the said Mcllvaine and to the defendants, within such reasonable time, and to receive a conveyance of the legal title to the premises in fee simple; and the defendants having refused so to convey, your orator prays that the defendants be decreed to convey to the plaintiff all their estate, right, title and interest in the said premises, upon his paying them the amount above named, $12,073.63, with the interest and costs as above stated, in pursuance of the judgment and decree of the said court, in the suit of Mcllvaine v. Green, and that he may have such further relief as equity shall require.” -
    The defendants in their answer said:—
    “ 13. We do not know, and do not admit that Spencer Mcllvaine knew of the mortgage' held by Lindsay, before he commenced his ejectment suit, nor do we know or admit that Blaisdell knew of it before he purchased from Mcllvaine; but we knew at the time we purchased the property, that the estate and interest of the Greens had been sold at sheriff’s sale under Lindsay’s mortgage, and purchased by him; but we had been notified and advised that all the rights, title and interest of both of the Greens in and to said premises had been extinguished prior to the last-mentioned sheriff’s sale, and were informed and believed that at said sheriff’s sale said Lindsay had been notified and warned that said premises were claimed by said Blaisdell in fee.
    “14. We deny that before the expiration of the three weeks mentioned in the award, or at any other time prior to the 20th day of September 1871, said Joseph Lindsay, or any person for him, offered to pay said Spencer Mcllvaine the proper amounts of the said award, or requested him to convey the legal title of said premises to said Lindsay, or that said Mcllvaine refused to do so, stating that he could not convey the same away to any one without John J. Green’s consent, which would not be given to a conveyance to the plaintiff; and we aver that the first and only tender made by him was at the date alleged by himself in his original bill of complaint, to wit, on the 20th day of September 1871; and we further aver that said Mcllvaine was at all times willing, 'prior to his said conveyance to Blaisdell, to take the proper amount due him, had it been tendered to him, and make a conveyance; and we are informed and believe that said Lindsay knew this.” They admitted the allegations in the 15th paragraph.
    “ 16. We deny that the plaintiff lias always been ready to pay the above amount, inasmuch as he never tendered or offered to pay the same, except upon the day and year last aforesaid, and has not yet brought the same into court, which, we are informed, he had the right, and it was his duty, to do within the time limited in said award; hut we refused, upon the last-mentioned date, to receive said amount, and would not now receive the same, because we are advised that the said premises have vested in us in fee simple by an indefeasible title.
    “ We deny that the plaintiff was at liberty to pay the amount of the. reduced award within a reasonble time, in manner and form as is alleged in his amended bill of complaint, or that he has ever so offered to pay it to any one; and we are advised, and do charge, that as the award of arbitrators was never modified in any particular, except by the reduction of. the amount thereof, as above set forth; and inasmuch as the plaintiff never asked for an enlargement of the time for the payment of said amount, he was bound to pay the same within the time limited in said award.
    “17. We aver that since we have come into possession of said premises, by virtue of said deed of conveyance from'Blaisdell and wife, we have expended not less than $3000 on repairs and improvements of said factory and machinery, and have embarked a large amount of capital in a manufacturing business carried on therein; said business is now carried on by the defendant, John Maxson, alone, the said Daniel Wolfenden having, upon the 17th day of April 1872, sold out to him his interest in said business, and by deed of conveyance bearing date the same day, and recorded in said county, conveyed to him his interest in said factory and lot, with the machinery and appertenances, in fee simple.” The case under the amended bill and answer was referred to the same examiner and master; he reported: * * *
    “ The only addition to the evidence at the hearing under the present order, was the bond of indemnity given by Blaisdell to the defendants, when they took title. After the filing of the master’s first report, Joseph Lindsay took a rule in the ejectment suit of Mcllvaine v. Green, to show cause why the above-named defendants should not be ordered to convey the legal title to the premises in question to the said Lindsay, upon payment of the amount of the reduced award, with interest and costs of suit which is still pending, nothing having been done under it.
    “It was contended by the defendant’s counsel in bar of any relief under the present bill, that it is open to the same objections which induced the master to report that the first bill should be dismissed, viz.: that it is not an application in the action of ejectment, but in reality an independent equitable proceeding to attain the same end, and therefore obnoxious to the rules of' law, which forbid a second suit for a cause of action already adjudicated. The master, however, does not deem this a question now before him, or open to discussion. He is not called upon to say, whether as counsel for the plaintiff, he would have adopted the present method of accomplishing the plaintiff’s object, or whether he would have made his application in the case of Mcllvaine v. Green. The plaintiff prepared an amended bill, submitted it to the court and asked leave to file it. The court in granting him permission, said that he ‘ now unequivocally founds himself upon the judgment in that case,’ viz.: Mcllvaine v. Green. To adopt the defendant’s views, therefore, upon this point, would be to say that the court should not have allowed the amendment. It now appears also from the opinion of the court upon allowing the amended bill to be filed, that the appeal of Joseph Lindsay in the case of Mclvaine v. Green, was entertained by the court, and would not have been dismissed, had not the defendant abated the award. It also appears as conclusively that when this was done, no limitation of time within which to pay the balance due and prevent the judgment from becoming absolute was asked for or made ; the final judgment, therefore, was not entered in that case until the appeal was thus disposed of, viz.: April 20th, 1871. * * * The limit of three weeks named in the award, was out of the case, because it had already expired at this date, and because the plaintiff in the ejectment, by voluntarily abating the award, after that time should not be esteemed to have gained an undue advantage, and to have placed himself in the position he would have been, if no appeal had been taken. If he was after equity, he should do equity, and it would be but little short of indirection if by a device of that kind he would inflict a forfeiture upon the plaintiff here. * * *
    “ That a plaintiff’s title becomes absolute on failure to pay the unpaid purchase-money on or before the day stipulated in the judgment is no longer open to question, but where no time has been fixed, it is within the power of the court to ascertain it; and where it is fixed, the court may control and modify it up to the time the failure becomes absolute, if it be necessary in order to promote justice. In the case of Creight v. Shatto, 9 W. & S. 82, which was an equitable ejectment, Rogers, J. said, ‘ Time is of the essence of the verdict and judgment, and becomes a material point. Care, however, should be taken to prevent oppression, and against this the court will studiously guard. But how will it be in case a writ of error is taken within the period fixed for the payment, and the time expires before it is disposed of by the Supreme Court, and the judgment should, unexpectedly to the defendant, be affirmed? Will the defendant be estopped from avoiding the forfeiture by payment of the money due ? It is proper to say that in such a case the court can prevent injustice by giving further time for payment. As this is a ease in equity, we can so modify the decree as to prevent the injustice which would arise from an absolute affirmance of the judgment.’ Surely if the court will give time where the judgmeut is affirmed, they will do it where it is reversed, as was substantially the case with the award in Mcllvaine v. Green. It is urged by the defendants that it was Joseph Lindsay’s duty to have a new time fixed, if he did not want to abide by that fixed in the award; but in the opinion of the master, it was the duty of the plaintiff in the ejectment, who sought to enforce a forfeiture, to do everything necessary to make it complete. It was a matter within his province, as the actor in the case, and equity will not help him or shift his burdens, even if Lindsay’s negligence had concurred with his own. At the former hearings in this case some testimony was taken to show that Lindsay did, within three weeks after the date of the award, offer to pay Mcllvaine the correct amount due him, and that it was declined. Also, that the offer had been made on two occasions prior to the bringing of the ejectment suit. * * * Under the aspect which the case now presents, it is certainly, unimportant to the plaintiff here to decide whether such offers were really made or not, except, perhaps, as tending to rebut the charge of laches against him. If made, they were all made prior to the final judgment." * * *
    The master, after referring to the conflicting testimony on this subject, proceeded:—
    “As the point was not pressed by the plaintiff at the present hearing, the master will not endeavor to reconcile the conflicting statements on the subject. The defendants contend, however, that even if no time were fixed for paying the amount of the judgment, Lindsay was guilty of laches in not making any offer to pay it until September 20th, five months afterwards. But in this connection, it will be recollected that at the date of the judgment, Lindsay was but a creditor of Green, and had not yet acquired title to the equitable estate of the latter under the contract with Mcllvaine. It is true that a creditor may pay the amount to the vendor and save the forfeiture, but if he does he merely protects the defendant’s title, and is not entitled to a conveyance from the vendor, unless he has purchased the equity of the vendee. Lindsay was pressing his suit on Green’s mortgage with due diligence, and it was not until August 28th 1871, that he acquired the title to Green’s interest by means of a sheriff’s sale. The tender of the amount of the judgment in Mcllvaine v. Green, with interest and costs, was made by Lindsay on September 20th 1871. The master is of the opinion that under the circumstances this was not too late, and that the court should yet compel a conveyance to him on payment of this amount. What would he supineness in one man may not be in another under different circumstances. Lindsay, it is true, was at liberty to pay this money at any time, but it was not his interest to do so until he could demand a conveyance to himself. To put himself in this position he was active in pushing his mortgage against Green, and within a reasonable time after the sheriff’s deed, tendered the amount of Mcllvaine’s judgment. It was then positively declined. There is nothing in the case to lead to believe that if the tender had been made at any time after the appeal was dismissed in Mcllvaine v. Green, it would have been accepted, but much to induce the contrary opinion; and as Mcllvaine and those claiming under him had full knowledge of Lindsay’s claim, no one is injured by the delay. * * *
    “The master therefore reports that the court should enter a decree in accordance with the prayer of the plaintiff’s amended bill.”
    Exceptions were filed to this report.
    In making the decree, the court (Butler P. J.) said:—
    “ Being informed that the parties desire the judgment of the Supreme Court, we will confirm the report of the master at once, that they may not be subject to the delay which would result from our retaining the case even for a few days.”
    The final decree was that:—
    “ The plaintiff shall pay to the defendants the sum of $12,073.63, being the amount to which the sum awarded by the arbitrators in the case of Mcllvaine v. Green was reduced, with interest from February 23d 1871, the date of the award, until September 20th 1871, the date of the tender of the said money to the defendants ($416.52), making altogether the sum of $12,490.15, together with the costs of the case of Mcllvaine v. Green. And thereupon the defendants shall convey to the plaintiff all their estate, &c., in the factory and lot of ground in Chester, which they purchased from Samuel Blaisdell, being the premises described in the bill, and deliver him possession thereof, the plaintiff having relinquished all claim to mesne profits of the premises up to the date of this decree.”
    The defendants appealed, and assigned for error the allowance of the amendment to the bill and the final decree.

      J. B. Hirilcson and J. G. BrinJcle, for appellants.
    The suit by Mcllvaine against Green was an equitable ejectment and one verdict, or an award of arbitrators unappealed from, was final and conclusive: Damon v. Bache, 5 P. F. Smith 67; Amick v. Oyler, 1 Casey 506; Peterman v. Huling, 7 Id. 432; Hill v. Oliphant, 5 Wright 364.
    Maxson had the right to take possession without a writ if the parties in possession did not object. It was not necessary for him to obtain a writ: Hewitt v. Hiding, 1 Jones 35. Lindsay being a mortgage-creditor of Green was bound by the award: Damon v. Bache, 5 P. F. Smith 67. And to the same extent that Green was and should have protected himself by paying the money within the time named in the award to Mcllvaine^ it was his duty to have done so: Hill v. Oliphant, 5 Wright 377; Lauer v. Lee, 6 Wright 172 ; Pusey v. Harper, 3 Casey 470; Webster v. Webster, 3 P. F. Smith 164; Waters v. Waters, 8 Casey 308. Until the appeal was dismissed the case was in the power of the court as chancellor, and the running of the time was suspended and began to run again upon the dismissal of the appeal: Harmar v. Holton, 1 Casey 245.

      W. Darlington and W. L. Hirst, for appellee.
    The ejectment suit between Mcllvaine and Green was a proceeding to which Lindsay was not a party. If Lindsay had paid the money to Mcllvaine, he would only have protected Green’s title: Pusey v. Harper, 3 Casey 470. He would not have been entitled to a conveyance from Mcllvaine until he purchased Green’s title : Watson v. Willard, 9 Barr 89. There are cases in which money was directed to be paid in a given time, and the title became absolute by reason of default. Here, however, no time was fixed by the court for the payment of the money. It must therefore be paid in a reasonable time, and the master has found that it was so tendered. The amount must be ascertained and stated on the record before the time begins to run: Harmar v. Holton, 1 Casey 245.
   The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

This bill was filed by the claimant of an equitable title to compel the owner of the legal title to convey the land in controversy. The appellants hold the undoubted legal title. The appellee rests his equitable claim upon the following facts, to wit: Mcllvaine, a former owner of the land, agreed in writing on the 2d day of January 1865, to sell and convey the same to one Green, in consideration of the sum of $13,370.62 to be paid therefor; $1190.62 thereof to be paid upon the execution of the agreement, and the residue in subsequent instalments. Upon the payment of the whole purchase-money, Mcllvaine was to convey the land to Green, his heirs and assigns in fee. Green went into possession, and prior to the 22d September 1866, made the first payment. He failed to pay the other instalments as they became due. On the 21st day of January 1871, Mcllvaine brought an action of ejectment, and on the 23d February 1871, obtained an award of arbitrators for the land, subject, in the language of the award, to this condition, “ to be released if the defendant pay the plaintiff the sum of $12,961.17 within three weeks of the date of this award, and in case of such payment, the plaintiff shall make a full conveyance of the land in fee simple.”

On the 14th of March 1871, the appellee, in his own name, appealed from the award thus obtained against Green. This appeal was stricken off on the 20th April 1871, upon Mcllvaine filing a writing abating $887.17 from the amount awarded by the arbitrators. Thus leaving the amount of the award $12,073.60.

In the latter part of April 1871, Green gave possession of the premises to Mcllvaine, who entered therein, without any writ of habere facias possessionem having been issued. On the 21st May 1871, Mcllvaine sold and conveyed the premises to one Blaisdell, who on the 14th of September 1871, sold and conveyed the same to the appellants.

The appellee claims to hold all the equitable interest which Green acquired by virtue of his contract. On the 22d September 1866, Green executed a mortgage upon all his interest in the land to Rhodes & Ereeman. The mortgage was duly recorded on the 25th of the same month. May 16th 1867, this mortgage was duly assigned to the appellee. He issued a sei. fa. thereon to November Term 1870, and on the 27th of July 1871, obtained a judgment. A levari facias issued thereon, under which the land was sold on the 24th August 1871, to the appellee, to whom the sheriff executed a deed therefor on the 28th of the same month. On the 20th September 1871, he tendered to the appellants the amount of the judgment which Mcllvaine recovered against Green, with interest and costs, and demanded a conveyance of said premises in fee simple. The appellants declined to accept the money and refused to convey. On the 20th November 1871 the appellee filed this bill, praying that the appellants be decreed to convey the land to him upon his paying the amount of the judgment against Green with interest and costs. The case was referred to a master, who in February 1872 reported against the plaintiff in the bill; but afterwards by leave of the court, he filed an amended bill, upon which the master reported in favor of the decree prayed for. The court below confirmed the report and decreed a conveyance accordingly-

The appellee claims that the equities originally covered by the mortgage executed by Green, have been preserved and continued in him, from the fact that when the court dismissed his appeal, it omitted to designate any time for the payment of the money; and that he made the tender within a reasonable time after he received the sheriff’s deed of the property.

The only judicial decision designating the time within which the purchase-money should be paid to prevent a forfeiture of all the equitable interest of the vendee, was the one made by the arbitrators. There was no averment of any collusion between Mcllvaine and Green in the procurement of the award; so far as it appears this was the result only of Green’s inability to pay and of Mcllvaine’s desire to collect the purchase-money or regain the land.

It is shown that the court expressed a purpose to allow the irregular appeal from the award to be so amended as to permit the appellee to defend in the name of Green; but upon Mcllvaine proposing to abate the entire amount which was alleged to be excessive, and no further ground for an appeal being shown to the court, it was stricken off. If the appellee desired any extension of time for the payment of the sum awarded, thus corrected, then was the proper time to have asked for it. I do not mean to say that by the omission to apply on that day the appellee waived all right to invoke the equitable power of the court to designate some future day before which the judgment should not become absolute, yet I think the court would not have been justified in doing more than to enforce the spirit of the award as to the time of payment; and therefore should not have extended the time of payment for more than twenty-one days after the appeal was dismissed. The case is not analogous to a conditional verdict, in which the jury has omitted to fix a time of payment. Here the award did fix the time. Wherever it was not changed by the subsequent action of the court, it remained in full force.

In the absence of any fraud or collusion, I a,m unable to see how the appellee stood upon any higher ground than that occupied by Green. Mcllvaine had parted with a limited interest in his land. Whether that interest was retained by Green unencumbered, or whether he gave a lien upon it, did not change Mcllvaine’s rights, nor his methods of enforcing them. The holder of the legal title was not required to make the mortgagees parties to the action of ejectment. They had a lien only on the equitable interest of Green. A mortgage like a judgment confers on the mortgagee nothing more than a lien upon the land: Asay v. Hoover, 5 Barr 35; Witmer’s Appeal, 9 Wright 463.

When the award became absolute, and Green gave up the possession to Mcllvaine, all Green’s equitable interest terminated: Damon v. Bache, 5 P. F. Smith 67.

It is urged, however, that the appellee was not in a safe condition to pay the purchase-money, until he acquired the equitable interest at sheriff’s sale. Conceding this to be so, it admits of a satisfactory answer.

To give full effect to this argument, would ignore the rights vested under the award, in the owner of the legal title, and might indefinitely postpone him in the collection o.f the purchase-money or the confirmation of his title. Neither the mortgagee nor a purchaser under the mortgage was under any obligation to pay it. In fact the appellee suffered more than twenty-one days to pass after receiving the sheriff’s deed, before he made a tender of the purchase-money. In the' meantime the appellants had expended upwards of $2000 in repairs upon the property. We think the appellee was not in a condition to compel a conveyance, and the bill should have been dismissed. This view of the case makes it unnecessary to discuss the errors assigned to permitting the bill to be amended. We will merely say, that under the rules, and especially under the 2d section of the Act of 29th March 1859, Purd. Dig. 601, pi. 71, we discover no fatal error in permitting the amended bill to be filed.

Decree reversed, and now it is ordered and decreed that the bill be dismissed at the costs of the complainant and appellee.