author: Kenksdv, J.

text:
    WOLF by SMYSER her guardian, against EICHELBERGER, SHEARER and SMYSER.
    IN ERROR.
    E. was the guardian of W., and with her money purchased land in trust for her, by a deed, in which the trust was not declared, he afterwards made an assignment of this land to trustees for the payment of his debt. The trustees sold it, and before the distribution of the fund, W. gave notice of her claim, and brought suit for the money. Held, that she was entitled to recover.
    Error to the District Court of Yorh county.
    The plaintiff in error, who was the plaintiff below, brought as-sumpsit for money had and received to her use, for the price of three-fourths of a tract of land, which the defendants under a deed of trustfor the paymentof his debts, from Jacob Eichelberger, had sold and conveyed. It was admitted, that the sum for which it had sold, was insufficient for the payment of the preferred debts ■ provided for in the deed o’f trust.
    The plaintiff offered to prove, that Jacob Eichelberger, was her guardian, and had bought this land in trust, with hef funds for her, by a deed, in which, however, the trust did not appear; that he after-wards declared that it was her property, and gave directions to have, a deed prepared to conv'ey it to her, but before it could be prepared, Eichelberger assigned the same to the defendants in trust. This evidence was objected to, and over-ruled by the court, who sealed a hill of exceptions, upon which error was now assigned here.

      Lewis for the plaintiff in error.
    The trustees are in the place of the debtor, and they are not purchasers for a valuable consideration, entitled to he protected as such. Haggerty v. Palmer, 6 John Ch. R., 437. The equity of the plaintiff is a superior equity, of which the defendants had notice before the distribution of the fund; and the plaintiff had an equitable lien on such fund. Dexter v. Stewart, 7 John Ch. R-, 62. Murry v. Lylburn, 2 John Ch. R., 441.

      Barnitz for the defendant in error.
    However the plaintiff might have had a claim to the land, which was held upon a secret trust by Eicñelberger, she can haveno claim against the defendants for the proceeds of the sale, which they are bound to distribute according to the provisions of the dged of trust. They are purchasers for a valuable consideration, without notice of the secret trust in favor of the plaintiff, and they hold for the benefit of creditors who unite to a meritorious equity, the legal estate. These trustees are hound to these creditors and cannot relinquish the trust. 4 John Ch. C., 126. ■
    The plaintiff was a creditor under this deed of trust, she could take under it, but only according to its provisions. Irwin v. Tabb, 17 Serg. & Rawle, 419. -
   The opinion of the court was delivered by

Kenksdv, J.

This was an action of assumpsit for money had and received, brought by the plaintiff to recover,-twenty-nine hundred and seventy dollars, money received by the defendants, as the price of three-fourths of a tract of land of one hundred and eighty acres, which they as the assignees of Jacob Eichelberger, sold to John Swartz.

On the trial of the cause in the court helow, the ’ plaintiff gave in evidence a deed bearing date, the 28th day of October, 1829) from Jacob Eichelberger, to the defendants, by whicli he conveyed-to them, inter alia, three-fourths of 180 acres of land, lying in Conewago township, and in trust for the purpose of paying his debts according to a certain order therein prescribed. It was admitted by the defendants, that they had "sold and conveyed this ■ land to John Swartz, for $2970, which they had received, and still held in their hands. It was also admitted that the whole of the property assigned by Jacob Eichelberger, to the defendants was insufficient to meet the payment of those debts, which according to the assignment, were to be paid by the defendants before the plaintiff’s claim.

Tlie plaintiff then offered to prove that Thomas Eichelberger and Henry Slagle, were seized in fee of three-fourths of the 180 acres; and that being so seized, Jacob Eichelberger bought, in 1814, one-fourth of the .same, and in 182&, bought two other fourth jfrom them with the money of Mary Wolf, which he had in hia hands as her guardian; but took the deeds of conveyance in his own name, without any trust appearing on the face of either of them. The defendants objected to this evidence, and the court below overruled the testimony. This is assigned as error. If Jacob Eich-elberger, being the guardian of the plaintiff, Mary Wolf, and having her money in his possession, employed it in the purchase of this land, although he made the purchase in his own name, and took the deed of conveyance to himself, it must be considered by operation of both law and equity a purchase in trust, and for the use and benefit of his ward, whose money he used in paying for it. The consideration which he gave for the land belonged to the plaintiff, .and will transfer the use of the land so bought to her as the owner of the consideration given for it. It is a resulting trust, not within the statute against frauds and perjuries, and may be proved by parol evidence. This has long since been well settled.

It is, however, contended that the assignment by Jacob Eichel-berger of this land to the defendants, ¿n trust for the payment of his debts, without any notice, either to the defendants or the creditors, in whose favor the assignment was made of the trust, placed the defendants in the situation- of bona fide purchasers, without notice for a valuable consideration. If this position was even true, it would not have been a sufficient reason for rejecting the testimony, because the effect of it could only have been determined after all the testimony had been given; and. as the jury then found the fact of notice, or no notice. But how can the defendants be considered purchasers for a valuable consideration? They gave nothing for the land to Jacob Eichelberger; nor can it be said that his creditors did. It was not upon the faith of their obtaining any interest in the land that they advanced him money, or became his creditors. By the plaintiff’s recovering the money in the hands of the defendants, arising from the sale of this land, these creditors are placed in no worse situation than they were immediately before, and at the time of making the assignment. It is not pretended that they parted with, or gave up any thing, even any part of the security which they had for the payment of their debts, in consideration of getting the assignment. There is no reason why the defendants, or the creditors should be placed in a different situation, as to the plaintiff’s claim, than Jacob Eichelberger would stand in himself, had he sold the land, and received the money. It is true that Jacob Eichelb’erger could not have forced his ward to take the land, unless, indeed, as it has happened, hy. becoming insolvent, ‘and leaving her no alternative hut to lose her money, or look to the land or its price. She had her election, had Jacob Eichelberger been worth millions, to have demanded of him her money, or to have taken the land, whichever might have been of the most value; for a guardian or trustee' shall not be permitted to make profit or gain of his ward’s money or estate, or of the trust fund, and to put gain or profit into his own pocket.

It is impossible that the defendants or the creditors of Jacob Eichelberger can withhold this money from the plaintiff, but in violation of every principle of confidence and good faith; provided the case should turn out in proof as the plaintiffs allege it to be. There was error in rejecting the testimony offered. The judgment of the District Court must therefore be reversed, and a venire de novo awarded.

Judgment reversed, and a venire de novo awarded*


source: Caselaw Access Project

author: Kennedy, J.

license: Public Domain

text:
    KLING against HUMMER.
    IN ERROR.
    H. devised to his wife S. his dwelling1, &c. “with full privilege of the same as long as she is willing to manage the place.” “In case it should be too burdensome to her, and she and my creditors will agree to dispose of the land, &c. or in case of her death, then it. is my will that my. executors sell the same at public or private sale, to the best advantage.” .
    He directed in the event of a sale, that after paying his debts, his.wife should have “the one-third of all money left.” He empowered his “executors, or the survivor of them to make good assurance and sufficient title to the purchaser,” and appointed two executors. S. went into possession, and some time after one of the executors, and some of the heirs, but not all, met and consulted about selling, which S. at first opposed, but upon the representation of some, of the children, that she could live Better on the interest, and if that were not sufficient, some of the principal might be taken, she assented. This executor offered the land at public sale, when the widow gave notice that she would not give up the land, the executor, notwithstanding sold. In this proceeding the co-executor, who was then in full life, was not consulted, and took no part. The có-executor died, and the surviving executor then made a deed to the purchaser, who brought ejectment against S. the widow, to recover the land.. Held, that the land was given to her for life, anda naked authority to the executors jointly to sell by her consent, or after her death, and'that one could not sell; and that it was doubtful whether the deed of the survivor to apurchase on sale by him alone in the life-time of the co-executor, would make such sale good, but it would not be good without the free and renewed consent of the widow.
    Her consent to sell, made necessary by the terms'of the will, was in the nature of a license or authority, and was revocable, unless given upon some valuable consideration so-as to couple it with an interest.
    It would seem that her consent to a sale, as it would transfer her estate, which is a freehold, should be by deed, and would fall within the provisions of the act against frauds and perjuries.
    Error to the District Court of York county.
    The plaintiff in error, George Kling brought this ejectment against Sicsanna Hummer, the defendant in error, to recover a tract of twenty* aeres of land in Paradise township, York county, and gave the following evidence:
    The,will of John Hummer, senior, proved 18th August, 1S14, which inter alia, contained the following provisions:—

      “Item.' I give, devise and bequeath unto my dearly beloved wife Susanna,~my dwelling house and land I now live on, joining lands of Christian Graeff, &c. togethér with the grain now in the' ground, with full privilege of the same, as long as she my wife Susanna, is willing to manage the plape. In case it should be too burdensome to her, and she and' my executors will agree to dis-. pose of the land and house, or in case .of her death, then it i.s my will, that my executors sell the same at public or private sale,'‘to the best advantage.” The testator then directs, that “when the plantation is sold,17 his executors shall first pay his debts out of the proceeds — :that his “wife shall have the third of all the money left,” — and that the remainder, together with the residue of his estate, after giving some special legacies, shall be equally divided among his children.

      “Item. I do hereby empower my executors or the survivor of them to make good assurance and sufficient title to the purchasers, as I myself could do, in as full and ample a manner to all intents and purposes, to them, their heirsand assigns forever,” “and lastly, I do hereby nominate and appoint my son John Hummer, and friend Henry Slagle, to be executors of this my last will,” &c.
    The plaintiff then proved by Peter Pol/e, as follows: “A meeting of several of the children of Susanna Huyimer, was held at her house, when a consultation was held upon the subject of selling the land. Susanna. Hummer was first opposed to selling; but at length her children, who were present, having made out that she could live better on the interest, and that if the interest were not sufficient, some of the pripcipal might be taken, she assented. At the request of John Hummer, I asked her if she was agreed that they might sell the land. She said they might sell it. Those of her children who were present, thought she could live better if the land were sold. It was not well farmed. Very little grain had been put out. She was not able to farm it herself, and gave it out on the shares. She was to be supported out of the sale of the land, and live with one of her children.”
    Five only of the eleven children of Susanna Hummer, were present at this consultation. The' others took no part in the arrangement. Henry Slagle, died on the 21st of December, 1829.
    The plaintiff then gave in evidence a deed of John Hummer as surviving executor,-to George Kling, the plaintiff, dated November 8th, 1829, acknowledged■29th December, 1829, which recited the above extract from the will of John Ilitmmer, senior: described' the premises in dispute in this suit; averred the seizin of the testator; the agreement of defendant to sell; and the sale made,in pursuance thereof, and conveyed the premises to George' Kling, the plaintiff.
    The defendant then proved that John Hcmmcr, had the property cried at public sale. After the conditions of the sale were read, the defendant, Mrs. Hummer, at the vendue, declared publicly, she would not give up the land,' no matter who purchased. The sale proceeded, and the land was struck down to the plaintiff. Henry Slagle was not present at the sale. He resided in Mary

      land, and there was no evidence that he tools; any part in the proceedings.
    The plaintiff requested the court to charge the jury, that “If the occupation of the property had become burdensome to the defendant, and she was not willing any longer to manage it, and upon consultation with one of the executors, agreed that the property should be sold under the will, the deed, if executed by John Hummer, after the death of Slagle is sufficient to vest the title in the plaintiff,” which the court refused to do, and charged the jury, that, “The will does not authorize the executors, severally to sell. Whilst both were living, a sale by one, without the knowledge and consent of the other, who had neither refused or renounced, could not be valid. The death of Slagle, before the execution of the deed cannot cure the defect of this sale, which was made before his death, and without authority.” “Mrs. Hummer was not indissolubly bound by the consent which she had given to the sale, but might retract it.
    “The agreement was not reduced to writing, and that fact affords another reason why it did not bind her, a reason made conclusive by the act of assembly of the 31st of March, 1793. .Upon both points, then, the law is against the plaintiff. John Hummer, was not authorized to make this sale alone, and without the agreement of his co-executor, who had not refused, or renounced. Nor was the sale good, made as it was against the will and consent of Susanna Hummer, publicly notified at the time.

      The defendant is, therefore, entitled to your verdict

    The verdict and judgment being for the defendant, the plaintiff brought this writ, and now assigned for error:
    1. That the court erred in refusing to charge the jury, as the plaintiff requested, and in charging the jury that the deed of John Hummer was not a good execution of the power in the will to sell.
    3. In charging the jury that the defendant was not bound by the consent which she had given to the sale.
    3. In charging the jury that the agreement of the defendant that the land should be sold, was made void by the act of 31st March,' 1772.
    4. In charging the jury that they should find for the defendant.

      Evans for the plaintiff in error,
    Contended that powers are to be construed according to the intent of the creator, and courts will look- to the substantial rather than the literal execution of them. Here the execution of the power was substantial. The purchaser took, not under the widow, any estate created by her; but he tools, under the will, by the execution of tiie power contained in the will, and therefore it was not necessary that her assent should be in writing. The power to sell and to agree to the sale by the widow once executed, could not be revoked, but an interest passed to the purchaser which conferred upon him a superior equity. 7 Com. D. (Day’s Edition,) 7,8,18. Sugden on Poio. 264,331,332, 348, 311, 312,350.4 Kent’s Com. 334, 336, 338, 321, 331, 330, 316.
    The court took the case from the jury. It was not a ease in which the plaintiff had wholly failed, in which upon a demurrer to the evidence, the judgment would have been against him, and in which alone he contended the court would be justified in deciding the cause.; but the facts were the subject of doubt, and they should be referred to the jury. Sampson v. Sampson, 4 Serg. & Raiole, 329. 8 Serg. & Raiole, 150.

      ■Anderson for the defendant in error.
    One executor under this will had no right to make a sale without the concurrence of his co-executor.
    The power was a naked power, not coupled with an interest, and must be strictly pursued. Sugden on Poio., 263, 264.
    The consent of Slagle was essential. If the consent of a person to the execution, of a power is required, and he dies before the execution of the power, the power is extinguished. Sugden on Poio., 265, 266. 4 Kent. Com., 324. 'Where the power is joint, all in whom it is vested must join.
    When an informality exists, a court of equity will sometimes interfere; but that court will never supply the defect of consent of the devisee of the power. Nay, if a power be a naked power, it has been disputed whether it will survive. Zebach v. Smith, 3 Bin., 69, 73. Moody v. Van dike, 4 Bin., 30.
    He-contended that the consent given by the defendant was altogether conditional, and as all the children were not present, she had a right to revoke it, and she did revolte it so as to give the purchaser notice of the hazard he incurred in making the purchase.
    As to the third point, he argued that the charge of the court was immaterial, but that it was also correct. The widow had possession, and held an estate, to convey which writing was essential. 4 Kent’s Com. 324, 326, 32L
    The court did not withdraw the case from the jury. They intimated a strong opinion in favor of the defendants; but this the court had a right to do, and the case fully warranted it.

      Lewis in'reply.
    This case was entirclv a matter of fact for the iurv. If the consent of the defendant to the sale bad been fairly obtained, 3he could not revoke it. It was to affect the title to land, and she is not permitted to be fickle and capricious in a matter affecting that title. The land, by the will, was to be sold when it became too burdensome for her; it was for the jury to judge whether this contingency had arrived. All this was taken from «the jury who were instructed to find for the defendant.
   The opinion of the court was delivered by

Kennedy, J.

There does not appear to be any error in the ■charge which the court below gave to the jury in this case. John Hummer, the testator, certainly devised to the defendant a life estate in the land in dispute, with a power to his executors, John Hummer and Henry Slagle jointly, or to the survivor of them? after her death to sell it, or in the life-time of the defendant by her consent, in case the 1 and should become too burdensome to hei; and in case of a sale in her life-time, one-third of the money raising therefrom is to be paid to her. The land is given to the widow for life, and a mere naked authority to tire executors to sell, by, and with the consent of the defendant, or after her death. Both the executors having taken upon themselves the burden of executing the will, one alone could not make a sale during the life of the other. Their authority under the will must be strictly pursued, and being to them jointly could not be executed by either severally after both had joined in procuring and taking out letters testamentary upon it The sale in this case appears to have been made by John Hummer, one of the executors in the life-time of the other, without his being consulted, and I doubt very much whether a confirmation of it by John, and his executing a deed of conveyance to the plaintiff, who was the purchaser, after the death of the other executor, would make it good; most certainly npt without the free and renewed consent of the widow.

Some time previously to the sale, according to the evidence in the case, her consent to sell was obtained, but certainly in a very 1'oose way; upon a mere verbal agreement that she should have the interest on the money arising from the sale during her life, and if that should not be enough she should have some of the principal, without saying how much. A provision altogether different from that contained in the will, for by that, in case oí a sale being made of the land during her life, she was entitled to have one-third of the principal. Besides the arrangement, under which her consent was given, was only made by and with a part of the children, who were all equally interested. Those who were not present, and did not agree to this arrangement, were not bound by it, and had a right to object to the widow’s receiving any other part or portion than what was allowed by the will. Considering the arrangement then in the nature of an agreement, it could not be binding upon her, unless all those who hád the right and the power, to grant to her what was promised as an inducement and consideration for her agreement, had become parties to it, which was not the case.

It may be further observed, that her consent to sell, which is made necessary by the terms of the will, in order to effect a sale iii her life-time, is to be considered in the nature of a license or authority to sell. Now such a thing is revocable in its very nature, unless some valuable consideration should pass from the party receiving' the authority to the party granting it, so as to couple it with an interest, and make it irrevocable. In this case there was no such consideration, and the widow had a right to revoke her consent at any time before the sale, which, as appears from the testimony, was done.

By the will she had acquired a freehold estate in the land; it appears that, in consenting to a sale of it, she was agreeing to dispose of the land, which would seem to come within the scope and provisions of the act against frauds and perjuries, and that her consent ought, therefore, to have been in writing. In short, I think that the direction of the court below was correct in every particular.

J udgment affirmed.


author: Rogees, J.

text:
    MEDLAR and another, executors of MEDLAR, against AULENBACH and wife.
    IN ERROR.
    By the act of the 19th April, 1794, the widow of an intestate has a lien on the lands taken at the appra.seraent in tile Orphans’ Court for the value of her purpart, the interest of which is to be paid to her during her natural life. Of this lien the Orphans’ Court cannot deprive her. This lien, as to such purpart is extended to the heirs who are entitled to their proportions of it after her death; and in this respect there is a distinction between the purpart of the widow, and the shares of . the heirs in the residue of the value. When, therefore, upon a decree of the Orphans’ Court, adjudging the land of an intestate to his eldest son, a bond was taken with surety to .the'heirs, conditioned to pay their respective shares, and also to pay their proportions of the widow’s purpart at her death, and a mortgage was afterwards taken of the land, conditioned to pay the heirs their shares, exclusive of the widow's purpart, upon which the premises were sold, and purchased in by the heirs; it was held in a suit upon the bond so given, that taking the bond did not extinguish the lien, and that by the purchase of the mortgaged premises on which it was a charge, the lien was merged, and no recovery could be had on the b<?nd.
    Writ of error to the Court of Common Pleas of Berks county.
    An action of debt was brought by Daniel Aulenbach and wife, against the plaintiffs in error, who were defendants below, upon a bond given by Jacob Albright, David Medlar, Abraham Koenig to Catharine Albright, the wife of Aulenbach, conditioned for the payment of ¿6166. 13.4, in one year after the date thereof, and the further sum of £83. 6. 8, immediately after the death of the widow of Jacob Albright, deceased. The widow of said Jacob Albright, died on the 3d of June, 18.38.-

      Jacob Albright died intestate, leaving a widow and issue three children, to wit: Jacob, Catharine and-Elizabeth. The real estate of the intestate was valued at the sum of ¿6750, and taken at the valuation by the said Jacob Albright, agreeably to the intestate laws of Pennsylvania, and the said David Medler and Abraham Koenig were approved of as his sureties, in the Orphans’ Court. The bond upon which this suit is founded, was taken for Catha-rine’s distributive share in the said real-estate. A mortgage of the same land was given by the said Jacob'Albright to Daniel Aulen-bach, intermarried with Catharine, and John Spayd, intermarried with Elizabeth, for £882, conditioned for the payment of £241 to Daniel Aulenbach, and £200 to John Spayd, with interest from date. The said mortgage was taken for the two-third parts of the said Daniel Aulenbach and John Spayd’s wives’ distributive shares in the real estate of the said Jacob Albright, deceased, leaving the one-third due at the decease of the widow, exactly as it stood prior to the taking of said mortgage. A scire facias issued on said mortgage, upon which judgment was entered, anda levari facias was issued, and the property was sold to Christian Lein-bach, for @1205, who assigned his deed from the sheriff to Aulen-bach and Spayd. Aulenbach and Spayd took possession, which they have held to the present time.
    The Court of Common Pleas, after stating the facts of the case, charged the jury that upon the valuation of an intestate’s estate, when no recognizances, are taken, and bonds only are given to secure the payment of the distributive shares to the heirs, those shares are not a lien under the act of assembly upon the land of the estate; that the recommendation of the Supreme Court to take recognizances in order to create a lien, precludes theideafhata sufficient lien and security existed under the act of assembly in favor of the heirs generally. But it is contended that the one-third of the valuation of an intestate’s estate, which is payable to the heirs upon the death of the widow is, by the act of assembly, made a charge upon the land, and stands upon different ground from the other portions of the distributive shares. No construction has been given to this clause of the act of assembly, nor is any practice shown under it; but in the present case it is the opinion of the court, that the acceptance of bonds with security for the payment of the share in question upon the death of the widow, was a waiver by the heirs of any charge upon the land created by the act of assembly, and that after the acceptance of the bonds with security the only remedy of the heirs was upon the bonds. And that the mortgage taken by the heirs upon the land to secure the balance due upon their shares payable before the death of the widow, and the proceedings thereon and sale by the sheriff, and purchase by the plaintiffs, and other facts given in evidence by the defendants, will not affect the legal right of the plaintiffs to recover upon this bond, unless the jury shall find that the plaintiffs took the land subject to the payment of their shares, due on the death of the widow, or under an agreement to receive the land in satisfaction of their shares. To which opinion of the court, the counsel of the defendants except, and request the court to file the same, which is done accordingly.
    The jury found a verdict for the plaintiff, upon which judgment being entered the defendant took this writ of error, and assigned the following errors:
    1. The court erred in charging the jury, that the one-third of the valuation of an intestate’s estate, which is payable to the heirs upon the death of the widow, when bonds with security are given, to secure the distributive shares, is not a lien and charge upon the land under the intestate laws.

      2. The court erred in stating to the jury, that the acceptance of bonds with security for the payment of the share in question upon the death of the widow, was a waiver by the heirs of any charge upon the land, created by the act of assembly.
    3. The court erred in stating, that after the acceptance of such bonds with security, the only remedy, of the heirs was upon the bonds.
    4. The coui't erred in stating to the jury, that the mortgage taken by the plaintiffs upon the land to secure the balance due upon their shares, payable before the death of the widow, and the proceedings thereon, and sale by the sheriff, and purchase by the plaintiffs, and other facts given in evidence by the defendants, will not affect the legal right of the plaintiffs to recover upon this bond, unless the jury shall find that the plaintiffs took the land subject to the payment of their shares due upon the death of the widow, or under agreement to receive the land in satisfaction of their share.

      Heister for the plaintiff in error.
    The language of the act of the 19th April, 1794, 22d section, as to the sum at which the purpart or share of the widow shall be valued, is, that “the same, together w'iththe interest thereof, shall be and remain charged upon the premises.” This plainly imports a lien which has not been waived.
    The decree of the Orphans’ Court, and the bond taken in pursuance of it, cannot have this effect. Where the estate is not divided, it is not usual for any other than the heir, who takes the estate, to attend when the proceedings are confirmed and the decree made. It would be therefore unjust to give this effect to those proceedings, and without the consent of the heirs, to deprive them of the lien on the land created by the positive terms of the act of assembly. Taking the bond, wras authorized by the act, and the practice of doing so is declared to be improper. Walton v. Willis, 1 Dali., 265. At all events, it does not affect the widow’s purpart. Kean v. Franklin, 5 Serg. & Raíale, 155.
    The terms of the act of assembly are imperative; non user, nor any practice inconsistent with it, cannot repeal it. Wright v. Crane, 13 Serg. & Rawle, 447.
    The bond must have been given after the decree, which by force of the act of assembly created the lien. It was a security of an inferior grade, and taking a security of unequal or inferior grade, does r.ot extinguish the first security.
    Where the defendant receives the fund out of which the debt is to be paid, the debt is thereby extinguished. 2 Com. D. tit. Chancery, p, 758. Chandas v Talbot, 2 P. Will. 604. Purvi-

      Unce v. Lemon, 16 Berg. & limóle, 292. Here, then, by purchasing the land on which the share of the plaintiff’s wife was charged, the debt for which the bond was given, was merged.

      Baird for the defendant in error.
    The sureties cannot deny their bond, and by that bond they are bound to pay the plaintiff the amount claimed in this suit. It is not the case of a stranger, denying the effect of the decree of the Orphans’ Court, but of those who were parties to it, who undertake to deny the import of the condition of the bond which they gave upon that decree.
    A person may waive a lien given him to secure a debt, and he contended that taking the bond here, was a waiver of the statutory lien. If the land had gone into the hands of a stranger, it would not be pretended that the surety was not liable on the bond, and in equity, the present case could not be distinguished from that. But this bond was not given to the widow, as to whom it is contended a lien exists; but it was given to the heirs for the payment of their shares at her death.', He likened this to the case of a servant, who by the act of assembly, has a preference out of the assets of a deceased debtor, which is extinguished by taking a single bill for his wages, payable at a future day. Silver v. Williams, 17 Berg. & limóle, 292.

   The opinion of the court was delivered by

Rogees, J.

In the act of the 19th April, 1794, the legislature has provided, “That when the whole premises shall be adjudged to the eldest son, or any of the children, the purpart of the widow shall be valued, ■ and the same, together with the interest, shall remain, charged on the premises; the interest to be paid annually, and at her decease, the principal sum to be distributed, and divided among the children and representatives of the intestate.” The Orphans’ Court oÍ Berks county, in accordance with the directions of the act adjudged the real estate of the intestate, to his eldest son, and ordered the bond to be executed, which has give rise to this controversy. That the sum at which the widow’s share was appraised, is a lien on the premises, it is impossible to doubt; nor do I understand the Court of Common Pleas, to deny this proposition. In the 22d section, it is enacted that when the widow is living, and the whole premises shall be adjudged and ordered to the eldest son, or any of the children, the wife of the person so deceased, shall not be entitled to the sum, at which her pur-part, or share of the estate, ordered to the eldest son, or any of the children shall be valued, but the same together with the interest, shall be and remain charged upon the premises, and the interest thereof, shall be annually and regularly paid by the eldest son, to be recovered by such mother, by distress or otherwise, as rents in this commonwealth are usually recovered, during her natural, life, which provision the said mother shall accept and receive in lieu, and full satisfaction for her dower, at common law. As the legislature have thought proper, in introducing a new system, to divest the right given her by the common law, they have, at the same time, taken effectual care of her interest, by creating a statutory lien) to the extent of the value of the purpart, which together with the interest, is to remain charged on the premises: and as the death of the widow may occur at an indefinite" period of time, they have also extended the lien to the heirs and legal representatives; in this respect, making a distinction between the purpart of the widow and the share of the heirs of the intestate. Nor do the case’s cited, Walton v. Willis, 1 Dal. 265; Kean. v. Franklin, 5 S. R., 155, interfere with this construction. In these cases, the court has reference to the ,purparts of the heirs, which are placed on a different footing from the share allotted to'thc widow. In Walton v. Willis, Chief Justice McKean condemns the practice of taking bonds, which, independent of the act, are a personal security, and recommends a recognizance by which the lands themselves would be bound for the payment of the distributive shares. And this is true as regards their purpart, as the act has left it discretionary with the court in these cases to take either real or personal security; but it is not true in respect to the widow’s share, which is made a lien by the direction of the act, in language which it would be difficult to misapprehend, a security provided for her, of which thecourt,even ifthey had so intended, cannotdeprive her. The court of Common Pleas decided that the acceptance of the bond, with security for tlie payment of the share in question, after the death of the widow, was a waiver by the heirs of any charge on the land, created by the act - of assembly, and that after the acceptance of the bond, with security, the only remédy for the heirs, was upon the bond. In this opinion, we. cannot concur. As I before intimated, I do not look upon this proceeding as the act of the party, but I view the bond, as taken in pursuance of a decree of the court. Nor is there in this, particular, any difference between the rights of the widow and the heirs. The act places them in the same situation for the reason which has been before given. The heirs could not do otherwise than accept the bond after the decree. It would not be in the power of the court to divest the lien of the widow and heirs in the teeth of an act so express as the present, and it seems.to me,.it is not using them fairly in supposing they had any such intention. In the bond, which in the absence of all proof to the contrary, I take to be the act of the court, it is said that upon its sealing and delivery, the said Jacob Albert, should hold and enjoy the real estate, valued to him, his heirs and assigns forever, according to lato, &c.

We must then refer to the act of 1794, to ascertain the title to the premises, by which it is clear that Jacob Albert acquires an estate in fee-simple, subject however to the widow’s dower or pur-part, the interest to be paid to her annually as rents, and the principal to the heirs and legal representatives after her death. But it is said, the acceptance of the bond with security, is a waiver of the lien, but I cannot perceive how this result can be produced under the circumstances, particularly, if the acceptance of the heirs, is in conformity to a decree of the court requiring security; so far from indicating any intention to part with thelien, it is in its nature cumulative; for as a matter of precaution, it may sometimes be the duty of the court to order additional security to guard against accidents, from fire or other casualties. To take from the-widow and heirs, a real security created for their benefit, would require much more unequivocal evidence of intention, than is disclosed in the circumstances here presented; for if this is to be resolved into a question of intention, it might be difficult to prove, that by adopting this form, rather than a recognizance, the parties intended to relinquish any right given by the statute.

Judgment reversed, and venire de. novo awarded.


author: HustoN, J.

text:
    MEHAFFY against SHARE, for the use of HAINS.
    5?. S. M. and D. purchased a tract of land of E., and with L. S. and C. as their suraties, gave E. a bond for the. price. It was understood by the parties, that E. was surety for P. andS. and C. iorM. andD., and that S. gave none. After several payments, E. brought suit. The writ was served upon all but M., and judgment obtained. A settlement was had between the defendants, to ascertain how much as between themselves each was to pay, and it was found that P. was deficient a large sum. P. and L. gave to M. and D. a bond to indemnify them for any money they might have to pay forP. on the bond to E. E. issued execution on her judgment, and sold the land of S. out of which she received the amount of her bond which should have been paid by P.
    S. being in debt to H. and arrested by him, S. executed to him a power of attorney irrevocable for the use of H., to sue for and recover of and from the estate of P. and from L. all sums, &c. due S. P. died insolvent. Held, in a suit brought by S. for use of H. against M. to recover contribution for his portion óf P’s. deficit, paid out of the property-of S., and in which M. had pleaded in abatement, that H..had no authority to sue, him, and issue was joined on that fact alone, that it was competent to prove by the subscribing vvitness to the power, who drew it at the request of S'. and H. that all the circumstances of this transaction, had been explained by S. to n., that it was this claim arising from this transaction and payment for P. to E. which was to be transferred, but it was P. and L, who were spoken of as liable to pay it.
    An assignment.!)!' a particular claim passes all remedies and liabilities, which the assignor had to secure and recover it to the assignee, although they are not specifically named, or set forth in the assignment, and H. on the assignment of S. of his claim for contribution, had'a right to recover from M., although he was not named in describing that claim.
    The record of a suit brought by S. for use of H. against L., in which the plaintiff suffered a non-suit, was not evidence in the action of S. for use against M. nor were judgments and mortgages existing against S. at the time of the assignment of the claim to contribution; that claim was a mere clml in action, which S. alone could sue, or give to any of his creditors; nor was a former suit by S. for H. ^against M., still pending, although for the same cause of action, evidence in this suit in which the issue was upon, such plea in abatement.
    "Where suit is brought in the name of a nominal plaintiff, for the use of another, by the act of assembly of the 23d April, 1829, the suit does not abate by the death of the nominal plaintiff.
    If issue in fact be joined upon the replication to a-plea in abatement, and found for the plaintiff, the jury should assess the damages, and the judgment is peremptory for the delay, quod recuperet, and not quod respondeat.

    Where an action of assumpsit can, or must be brought, and the amount which the plaintiff seeks to recover, appears by a writing under seal, or a judgment, such writing, or judgment, is evidence for the plaintiff in the action of assumpsit.

      It seems that where one of several principals pays a judgment, he is not entitled to be substituted to obtain contribution, as'a surety is to obtain payment from the principal, when such surety pays the debt;
    Appeal from the Circuit Court, held by Kennedy, J. for Lancaster county.
    Tire action was assumpsit for money paid, and expended, lent and advanced, by Henry Share, for the defendant, James Me-haffy. The suit was brought for- the use of Henry Hains, whose right to sue, formed the principal ground of controversy in the «au'se. .The .pleadings which are- material to the understanding of the cause, were as follows:
    “And the said James Mehaffy, in his own proper person, comes and defends the wrong and injury, &c. and says, “that before and at the time of issuing the summons in this case, and of bringing this siiitj Henry Hains, the cestui que use, and for whose use the said suit appears to have been brought, had no power or authority from Henry Share, to bring this suit, or any suit in the name of Henry Share, for the use of Henry Hains, against James Me-haffy, the now defendant. That the power from Henry Share, to Henry Hains, to sue and collect money in the name of Henry Share for the use of Henry Hains,. given and dated in May, 1821, is a special power to sue Parker and Hiestand, Jacob Breneman, and Joseph Lytle, and no other person or persons and no power to bring the' present suit: And this the said James Mehaffy, is ready to verify. Whereupon he prays judgment whether the defendant ought to be compelled to answer the plaintiff, and that the summons issued .abate, &c. James Mehaffy, affirmed, &c.
    To this plea the. plaintiff filed the following replication:
    “And the said Henry Share, who sues for the use of Henry Hains, saith that the said writ ought not to be abated, or quashed by reason of any'thing by the said James Mehaffy, in his said plea above alleged. Because, he saith, that he the said Henry Share, the said James Mehaffy, and a certain John Pedan, and James Huffy, purchased a certain tract of land, of a certain Frances Evans, and to' secure the payment of such part of the purchase money as was not in hand paid, gave their bond, dated-the 6th of April, 1813, with Joseph Lytle, as the surety of John Pedan, Henry Cassel as the bail of James Huffy, and George-Snyder as the bail of James Mehaffy, the said Henry Share, being by the said principals not required to give any surety as amongst themselves; that the money payable by the said bond, not being paid according to the tenor thereof, the said bond was put in suit in the-Common Pleas of Lancaster county, to November term, 1815, upon which suit such proceedings were had, that judgment was rendered, and execution issued thereon, and the real estate of the said Henry Share, levied, condemned and sold on a venditioni exponas, returnable to November term, 1821, foils 100 dollars, of which the said Frances Evans received $9322, 43$ in satisfaction of her said judgment besides the costs of suit.
    “And the said Henry Share, further saith that the said James Mehaffy and James Huffy, on the 19th day of July, 1815, took a bond from the said James Pedan and Joseph'Lytle, to indemnify and save harmless the said James Mehaffy and James Duffy, from the payment of $3616,71?!, then and still due and owing by the said John Pedan, as his share and purpart of the said bond, of the said Frances Evans, until she received satisfaction for the same with its interest, by the sale of the real estate of the said Henry ¡Share, as aforesaid; thattlie said John Pedan, atthetime of the sale of the said Henry Share’s real estate was, and is wholly insolvant and died so. That the said Joseph Lytle was, and is fully indemnified, and saved harmless for becoming surety of the said John Pedan, in the said bonds respectively, and has and holds the said money in his hands. And the said Henry Share, further says, that on the 17th day of August, 1819, he drew a promissory note in favor of Henry Cassel, or order, payable sixty days after date, at the Farmers’ Bank of Lancaster, for value received for $3825, which he the said Henry Cassel, and the said Henry Hains, indorsed to the said bank, and directed the payment of the said note, when discounted to he paid to the said Henry Share, which he received, which note, not being paid according to its tenor, was in •due form of law protested, and the said Henry Hains 1o redeem himself from his said indorsement, and the protests of the said note paid to the said bank in satisfaction of the same, the sum of @2982, 76, on the 5th day of September, 1820. And the said Henry Share, further says, that on the 17th day of February, 1819, he-made his promissory note, payable to the order of the said Henry Hains, junior, at the office of discount and deposit at Lancaster, for the sum of @2700, without defalcation for value received, which the said Henry Plains, and a certain Henry Plains, indorsed to the said bank, and directed the amount of the said note to be paid to the said Henry SJiare, which said note, not being paid according to its tenor, the said Henry Hains, the payee and indorser of the said note, to redeem himself from his said indorsement of the said note, and the protest thereof, on the 28th day of April, 1819, paid to the said office of the sum of @2708 48, in satisfaction of the said note. And the said Henry Share, further says, that he the said Henry Share, to save harmless and indemnify the said Henry Hains, junior, from the payment of the said two several sums of money, for him the said Henry Share, as well by the said instrument of writing in said plea, stated,, of the 12th May, 1821, which was by mistake of the scrivener, not drawn according to the intent- of the parties, as well as by parol transferred and made over to him, the said Henry Hains, (among other things,) all and every right, title, claim, interest and demand in law and equity, which he the said Henry Share had-enjoyed, and held and was entitled to, for compensation and contribution from the said parties principals and their surety, respectively,' in the said bond and judgment of the said Francas Evans, to wit: the said James Mehaffy, James Duffy and John Pedanj to the extent of the moneys levied and paid on the said bond and judgment for each of them by the said Henry Share, to the said Frances Evans, by and arising from the sale of the real estate of him, the said Henry Share. And this he the said Plenry Share is ready to verify. Whereupon he prays, judgment and his damages by him sustained on occasion of the non-performance of the said promise and undertaking of the said James Mehaffy, in the said declaration mentioned to be adjudged to him,” &c.
    On the 2d of May, 1829, the defendant obtained a rule to shew cause why the replication should not be struck off, and on the 9th of May following, the court directed the defendant to rejoin to the replication filed, whereupon the following rejoinder and sur-re-joinder, and issue were put in.
    “And the said James Mehaffy, as to the replication of the said plaintiff, to the said defendant’s plea in abatement pleaded; protesting against the truth of all and singular the facts therein stated and set forth, and also protesting that they contain no answer to the facts stated, and issue tendered by the defendant’s plea in abatement saith, that the said plaintiff ought not, by reason of any thing by him alleged, to have or maintain his said writ of summons against him, the said James Mehaffy. Because he saith that the said Henry Share did not either by the said instrument of writing, in the defendant’s plea in abatement stated, or by parol, transfer and make over to the "said Henry Hains, any right or authority to issue the original writ of summons in this cause. And of this, he the said James Mehaffy puts, himself upon the country.”
    And the said plaintiff, doth the like, issue and rule for trial.
    And now to wit, the 25th April, 1831, the defendant filed an affidavit of the death of Henry Share, and objected to the jury being sworn until his personal representative should be made a party to the suit: this objection was over-ruled by the court, and the jury was ordered to be sworn, to which the defendant excepted. The jury was then sworn and the trial progressed.
    The plaintiff produced and proved the execution of the following power of attorney or assignment, which Was received in evidence:
    “Knowall men by these present, that I Henry Share, of Done~ gal townshipj Lancaster county, and state of Pennsylvania, have made, ordained, authorized, constituted and appointed, and by these presents, do make, constitute and appoint Henry Hains, junior, of Donegal township, aforesaid, my true and lawfulattorney, irrevocably for me and in my name, but to the use of him the said Henry Hains, junior, to ask, demand, sue for and recover and receive of and from Jacob Brenemdn, of Donegal township, aforesaid, the estate of John Pedan, deceased, and Joseph Lytle, in Rapho township, Lancaster county aforesaid, all and every such sum, and sums of money, debts and demands, which now are, or may become due, and owing to me the said Henry Share, by and from the said Jacob Breneman, the estate of John Pedan, deceased, and Joseph Lytle, and also to recover and receive the amount of the two judgments entered in the Prothonotary’s office of Lancaster county, in the name of said Henry Share, and against John Hiestand, and William J. Parleer, which two judgments were appealed by John Hiestand, and in default of payment thereof to have, üse and take all lawful ways and means in my name or otherwise, for the recovery thereof by attachment, or otherwise; and on receipt thereof to make, seal and deliver requittances or other sufficient discharges for the same for me and in my name, •' and to do all lawful acts and things whatsoever concerning the premises as fully, in every respect as I myself might or could do if I were personally present, and an attorney or attorneys under him for the purpose to make, and at his pleasure to revoke, hereby ratifying, allowing and confirming all and whatsoever my said attorney shall in my name lawfully do or cause to be done in and about the premises, by virtue of these presents, hereby revoking all .former letters of attorney by me given, so far as respects the collecting of the above mentioned debt and judgment. Witness my hand and seal this twelfth day of May, one thousand eight hundred and twenty-one.” HENRY SHARE, [l'.s. j
    Sealed and Delivered ? G-eokge Matiiiot, in presence of $ William Child.

      William Childs, the scrivener who drew this power of attorney,who was a 'subscribing witness, and proved its'execution, was examined as a witness, and gave testimony of which the following is the substance. John Pedan, .Pfenry Share, James Mehaffy, and James Dvffy, had made a large purchase from Mrs. Frances Evans, and after paying the first instalment, gave their bond for about'twenty-four thousand dollars, with three sureties, Joseph Lytle, George Snyder and Henry Cassel. It was understood that Joseph Lytle, was surety for Pedan,'Snyder and Cassel for Mehaffy and Duffy. Share gave no security. ' After several payments, Mrs. Evans sued the bond, and got a judgment against all except Mehaffy, on‘whom, by the .direction of Mrs. Evans, the writ was not served. The defendants made a settlement to ascertain how much, as between themselves, each was to pay: On that settlement, it was ascertained that John Pedan was deficient three thousand six hundred and eighteen dollars and seventy-one cents, John Pedan and Joseph Lytle, gaye James Mehaffy and
      Jumes Duffy, a bond to indemnify them for any money they might have to pay for 'Pedan, on the bond to Mrs. Evans. A copy of this bond, in the hand writing of Mehaffy, (who after notice to produce the original ■ refused to do so,) was given in evidence, and it was also proved that to indemnify Ly tle, as his surety, Pedan had. confessed judgment to Lytle, in Dauphin county.
    The plaintiff showed that Henry Share’s land whs levied on and sold by Mrs. Evans, for $16000, out of which she received the sum of nine thousand three hundred and twenty-two dollars and forty-three cents.
    The witness proved that all the circumstances of this transaction had been explained by Share to Hains, and that an offer had been made on a- former occasion, to transfer his claim to Hains, which was then declined. That on the 12th of May, 1831, (Share, being pressed and arrested by Hains,) Share and Hains desired him to draw the instrument given in evidence, to which he was a witness. He stated that the name of Mehaffy, was only mentioned in relating the whole transaction that it was this claiiji, arising from the payment to Mrs. Evans for Pedan, by the sale of Share?$ land, which was to he transferred to Hains, but that it was Pe-dan and Lytle, who were spoken of as liable to pay it; and all the circumstances were minutely detailed, to show that thé claim was good. It was proved that Pedan was insolvent, and dead.
    The plaintiff shewed that Henry Hains, had been indorser for Henry Share,had been compelled to'pay for him. large sums of money, (exceeding the amount claimed in this suit,) before the assignment by Share to Hains._
    The suit was brought to recover from James Mehaffy his proportion of the money levied from Share, and which ought to have been paid by Pedan, and for which the others were bound to contribute to Share on Pedan’s failure.
    The power of attorney from Share to Hains, the evidence given by Childs, the subscribing witness, the copy of the bond of indemnity of John Pedan and Joseph Lytle, to James Mehaffy and James Duffy, the notes drawn by Share and indorsed by Hains, which he was compelled to pay, the record of the suit of Frances Evans against Pedan, Mehaffy, Duffy, Share, Cassel, Snyder and Lytle, were objected to by the defendant, and formed several bills of exception, which were taken in the cause. ■
    The defendant offered in evidence the record of a suit brought by Henry Share, for the use of Henry Hains against Joseph Ly-tle, for the same claim now in suit, and in which the plaintiff was non-suited. Also the record of sundry mortgages and judgments existing against Henry Share, at the time he assigned his claim against Henry Hains; also the record .of a judgment of Christian

      Becker against Matthias Bank and Henry Share, to August .term, 1,815, and the scire facias thereon to April term, *1818, and the subsequent proceedings in the Supreme Court, see Bank v. •Becker, 13 Serg. & Raiote, 41. Also the reeord of a suit by Henry Share, for Henry Haiyis against- Jatnes Mehaffy, in the Circuit Court of Lancaster county, which had been brought in the District, Court to September term, 1818,-to each of which the plaintiff objected, the court sustained these objections and the rejection of these records formed several other bills of exception.-
    The following entry was made on the record of th& scire facias issued to August term, 1819, on the judgment of Frances Evans, against Pedan and others: ' ■
    “June 26th, 1821, on motion of Mr. Buchanan, on behalf of Joseph Lytle, who is a surety in the .bond upon which this judgment was.obtained, the court granted a rule to shew cause why he should not be substituted in the place of the plaintiff, and by means of this judgment, receive the sum of $>1000, together with interesf from the 18th of August, 1818, out of -the proceeds of the sale o tire real estate of Henry Share, who is a principal in the said bond and judgment, the said Joseph Lytle, having'paid-to the plaintiff upon the said .judgment the said sum of $1000 on the said 15th of August, 1818, as per.receipt of that date.”
    • Mrs. Evans was offered as a witness by the plaintiff, but being objected to by the defendant, was withdrawn-. The defendant had on-the -13th day of June, 1827,.táben a rule on the plaintiff’s attorney, to file his-warrant of attorney, and the warrant was filed the 9th of May,. 1829.
    The defendant requested 1¿he court to charge the jury on the following points, and file the charge of record:
    1. That before the plaintiff can recover in this case, he must prove," by legal and competent proof,' that James Mehaffy was indebted to Henry Share, for money advanced, &c. by Share for him, Mehaffy, and at his request. That Henry Share considered it so, and intended to enforce the- said claim against the said James Mehaffy, and actually-assigned and transferred it to the present plaintiff, 'Henry Hains. .

    2. That Henry .Hains the~plaintiff, cánnot recover in this suit, without proving an assignment or transfer of Share’s claim against Mehaffy, (if any he had) to him, Hains, either in writing, or by paroL ... ",
    . 3. That the instrument of writing, of the 12th of May,. 1821, referred to in the pleadings, contains no such transfer, and is no authority to maintain this suit.,- That there is no' proof of any mis--take of the scrivener, in drawing said instrument of writing. Nor has the plaintiff given any proof of any parol transfer in this case and that consequently bn the issue formed, the jury must find for defendant.
    The court charged the jury as follows:
    “This is an action of assumpsit, brought by Henry Hains, junior, in the name oí Henry ¿¿hare, for. the use of the said Henry Hains, to recover of James Mehaffy moneys, which it is alleged Henry Share advanced, paid, laid out and expended for the said Mehaffy, at his special instance and request,- &c. '
    You will first. enquire whether James Mehaffy was indebted to Henry Share on such.account or not, at the time of commencing this suit.
    Next whether Henry Hains had a right, and authority from Henry Share to bring this suit, and to enforce payment from Mehaffy-*

    If you should find that James Mehaffy, was indebted to Henry Share, for money paid, advanced, &c. by. the said Henry Share, for James Mehaffy. And again, that this claim was assigned by Share .to Hains, it will be . your duty to ascertain and fix the amount'of damages, or money — that the •defendant ought to pay the plaintiff.
    With respect to the first point, you have it in evidence, that Henry Share, James Mehaffy, James Huffy and John Pedan, as principals, and Henry Cassel, George Snyder and Joseph Lytlér as sureties, on the‘6.th of April, .1813, joined in executing and delivering an obligation to Mrs. Frances Evans for $48,581 25, conditioned for the payment of $24,290 62} to Mrs Evans, on the first of April, 1814. . .
    A considerable portion oí this obligation, appears to have been paid, and probably by the several principal obligors in their proper proportions, previously to the 19th of July,i-1815, when it appears from a bond of indemnity, given by John Pedan arid Joseph Lytle, to James Huffy and James Mehaffy, a balance was due on this bond, and John Pedants one-fourth of the sum due on it, amounted to $3,616 705. In the course of two or three months after this? Mrs. Evans commenced a suit upon this bond, to November term, 1815. Thasummons in commencing this suit, by direction of Mrs. Evans, was not served on James Mehaffy, although he was joined with, the Others in the summons, hut was served on the others, as appears by the return of the sheriff, and judgment by default-was entered on the 22d of January following, 18,16.
    At this time, less than $9000 appears to have been due on the bond, and therefore most likely something. had been paid upon it to Mrs. Evans, after the 19th of July, preceding. It may be that Jam.es Mehaffy, in that- interim paid @3616,705 his own fourth of the balance due on the 19th cf July, 181-5, and that may be the r«a-son why Mrs. Evans directed the summons not to be served.on Mehajfy, expecting' that if she had a judgment against the other three, she might be able id compel each to pay his proper proportion. If this- however were her motive for giving such direction, she did not succeed in it: for the whole balance due upon this bond, or the judgment obtained upon it, @9,322 43, was. recovered from .Henry Share, by -a levy upon, and sale of his -real estate. . •
    The circumstances of the writ of summons not being served upon Mehajfy, is no evidence, as.has been contended, of Mehajfy having ever been discharged or -'released by Henry Share, from his liability to Share, as .a principal co-obligor. The omission of the sheriff, to serve the writ on Mehajfy,■ was in obedience to the act and direction of Mrs. Evans¿ over whom Henry Share, had no control,..and with which it does not appear he had any .concern.
    It is manifest and not contradicted, that '$9382' 43, the balance of the debt and interest clue on this Obligation beside costs of suit, •were paid by Henry Share, as a' principal co-obligor,' or out of the money arising from the sale of his real estate, which is the same thing.5’ 1
    Answer of the court on the points submitted by defendant’s counsel:
    1. “To entitle the plaintiff to recover in this case upon the issue that is formed, it is necessary that he .should have proved that James Mehajfy the defendant was indebted to Henry Share for money advanced, &e. by Share for Mehajfy, and at his request. This request, however, need not he an express request, because, aá between joint principal’s co-obligers, when one of them pays more than his proportion, it will be considered in law as money paid and advanced for the others, and at their request; the law in this case implies the request, as also a promise by the others respectively to reimburse hiiidso paying, their respective proportions, so that upon a final adjustment of the whole, each- one shall have paid his proportion according to their respective rights in the obligation as originally concocted. To enable Henry Hains to enforce this claim against James Mehajfy, and to sue bim for it, it was hot necessary that Henry Share should have expressly authorized Hains to sue Mehajfy. If he' actually assigned' the claim to bim for a Valuable consideration, or in payibent of, or as collateral 'security for a subsisting debt, owing by Share to Hains, it will and ought to. be implied therefrom that he intended that Hains should sue Mehajfy, if he did not pay without Without assignment of the claim by Share to Mains, or an express authority given by Share to Hains, he would have no right to sue Mehajfy. But I repeat, if there were an assignment of this claim, either in writing or by word of month, by Henry Share to Henry Hains, to secure to Hains the payment of a debt which Share owed, and in consideration of which too Share obtained his discharge from arrest, and the prosecution of a suit of Hains; without naming Mehaffy in the assignment, orafithe time of making it, Hains would thereby acquire an irrevocable authority to sue Mehaffy, or any person who was liable, and bound to pay it, unless there was an express stipulation or understanding between Share and Ilains to the contrary. Neither is it material whether Share considered Mehaffy liable to pay this claim or not, if he never released him from it — ■ of which there is no evidence — an unqualified assignment of it would give an authority to sue Mehaffy for it, if he were liable, without naming him.

      ■2. Henry Hains cannot recover in this suit, unless you are satisfied from the evidence given, that Henry Share assigned the claim for which this suit is brought, to Henry Hains; but a written or verbal assignment or transfer, will be sufficient to enable him to sue for it, if good.
    3. The instrument.of writing of the 12th of'May, 1821, referred to in-the pleadings does not of itself contain an assignment of a claim against James Mehaffy by name; nor any authority to sue him. But the nature and origin of the debt or claim which is thereT by assigned to' Hains against John Pedan and Joseph Lytle is not described nor particularly designated; and William Child, Esq., a witness .on the part of the plaintiff, who drew that instrument of writing, and is"a subscribing witness to it, has testified and repeated it more than once, that the claim now in suit was the same that was mentioned at thfe time of drawing and executing that instrument, and an assurance given by Share to Hains, that Pedan wA Lytle were liable to pay it, and that he described it merely as a debt against them. It will be your duty to take the testimony of Childs in this behalf into your consideration in connection with that instrument of writing, inasmuch as it goes to explain the nature of the claim or debt which was intended to be assigned, which is omitted in the writing; and if you should believe from this instrument of writing, and from the testimony of William Childs, that the claim which this suit is brought to recover, was intended to be assigned by Share to Hains, and this is a matter which you ought to decide according to what you shall believe was-the intention of the parties at the time, it was not necessary that the name of Mehaffy should have been mentioned at that time, to give authority to Hains to sue him, It was sufficient if he were liable for the claim which was actually, and intended to be assigned. It does not appear from .the testimony that the scrivener committed any mistake; but it seems, according to his testimony, that he omitted, or has not described the nature and origin of the claim in this case, which he says was the same that was assigned. The court cannot say that no evidence has been given-of a transfer of the claim in this suit, because what has been testified to by Squire Childs may, and ought it credited by you", to be considered as part of the assignment, and if so, will embrace the claim in this suit, and would give Hains a right to sue for it, if well founded.”
    The verdict of the jury was for the plaintiff, and thé damages assessed $2546.

    On the 30th of April, 1831, the defendant moved for anew trial, for tire following reasons, to wit:
    1. The court erred in permitting the jury to be sworn, -and proceeding to the trial of the cause in /the then situation of the pleadings, and especially after a positive affidavit of the death of Henry Share, and a suggestion of this fact on the record; contrary to the wish of defendant's counsel, and when they in writing objected to the same. „•

      2. The court erred in permitting the plaintiff to go into evidence of the merits of his case, so as to slrow'what sum he was entitled to recoyer on a hearing on the merits; and instructing the jury when they were sent out that they were, in case they found for the plaintiff on the issue, to assess his damages.
    3. The court erred in, admitting the evidence as testified to by William Child, Esq.
    4. The court erred in admitting in evidence the paper dated the 12th of May, 1821, purporting to be a letter of attorney from Henry Share to Henry Hains, junior. ■
    5. The court erred in admitting in evidence the copy of the bond of indemnity, purporting fo have been executed by John Pedan and Joseph Lytle to James Mehaffy and James Duffy, and dated 19th July, 1815.
    The court erred in admitting in evidence the note drawn by Henry Share, and indorsed by Henry Hains, and Henry Hains, junior, payable tó Plenry Hains, junior, dated the 17th of February, 1819, payable in sixty days, at the office of discount and deposit at Lancaster, and paid off by Henry Hains, junior, after protest, on the 28th of April, 1819, $2,708 48.-' And also the noto drawn by Henry Share, and indorsed by Henry Cassel, Plenry Hains, junior, and Christian Miller, dated the 17th of August, 1819,, and payable to the order of Henry Cassel, in sixty days, at the Farmers’ Bank of Lancaster, and paid off by Henry Hains, junior, after protest, on the 5th of September, 1820, @2,982 76, together with the protests and receipts accompanying the same as given in evidence.
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      13, That the damages are unreasonable,,and excessive,-'and contrary to law, and. not warranted by-, the evidence.in the cause..
    14. That the verdict of the jury is.contrary .to law and the evidence in the cause. . .
    . The foregoing'reaspn were sworn to by James Méhaffy as being' “correct and true.” : '
    ‘Thefollowing-additional reason'is assigned by the counsel of the'defendant, he hot being in .court at the tihae the circumstance occurred; and not therefore being within his knowledge, but having transpired' before the Court, the reason is thus assigned: ; ■'
    . That when the jury returned to .the -court to give in their verdict it, was for the first tihae discovered by defendants counsel, that they had out with them', when deliberating in the" jury room, a. 'statement. and calculation in'the hand writing of the. sénio.r'cdunsel'of the plaintiffs, which was not given in evidence, nor .submitted to defendant^ counsel, and which may have misled the. fury in makirig up their verdict; arid that , a new trial ought to be granted on this account. - -
    , The counsel of 'the plaintiff testified, that neither of thpria knew how the paper referred to in the last reason assigned had .got to the jury. ' ’ It was a calculation of the principal and interest on óné of the notes which Mains had. been compelled to pay-for Share. ■

    The Circuit Court- over-ruled the motion for a new trial, and directed judgment to be entered oh the verdict;- whereupon-the -defendant appealed to the Supreme Court, and now assigned the'same reasons for a new trial as those insisted- on in the Circuit'Court.

      Porter and Jenkins for the appellant,
    -Argued that the issue presents a single point; a fact affirmed on' the.one side, and denied on the other. . That point was, that Hains had power to sue'the claim, pf Share against-the defendant.' This was affirmed by the plaintiff, and denied -by the defendant, and all the evidence which went to any other was irrelevant, and should not have heeir received.." As to this point, -they denied that there was any evidence to establish it. - The power of attorney was not an assignment, but a m.ere power, which must receive;'a-strict construction, and cértainly did not confer the right to institute this suit,-. for it'designates the debts, as to.which authority 'is given to sue; and this is not among'them, expressió uriius est exchxsio alterius. ■ 'It was'not- his intention'to transfer any .claim against Melidffy, as he was.ignorant of :the fact that he had §dch‘ claim, and it did riot appear/that if was riot His. intention -to release Mehaffyy ■
    Nor did the plaintiff Hains establish a parol-transfer; so far from it it was proved that on’a former occasion an-offer was made to-traris--fer this claim, and it was'then refused. ’ Take, then-, thc’writing and the testimony of Childs separately, and the transfer is not established; but the attempt is made to make it out by connecting them together, in violation of the rule which forbids the introduction of parol evidence, to contradict or vary a written instrument. The only exceptions to this rulo are in cases of fraud, mistake or trust, neither of which existed here. . ,
    They contended that the court erred in ordering the cause on when no issue had been joined on the merits,, and proof was given of the death of the plaintiff. The case they argued did not fall within the act of the 23d April, 1829, Pamphlet'Laws, 355, upon which the court decided this point. ■ This error led the court to others in pcrmitting-eyidence as to the merits to go to the jury, and instructing them that upon finding in favor of the plaintiff, it was their duty to ascertain the amount due, when the issue presented the naked qüestion as to the right to sue.
    The court they contended were in error in not receiving evidence of the mortgages, and judgments against Plains existing at the time of the alleged assignment; for if there were a'right of recovery against the defendant, that right should pass to these creditors. If they had not a lien upon the claim, still, as the recovery of their debts had been prevented by the judgment of Mrs. Evans, they had a right by substitution to come in to recover the fund to which Share obtained a claim> by the payment of that judgment.
    The damages they contended were erroneously calculated; for at all events, the record of Mrs. Evans’ judgment showed a payment of @1000, which ought to have been .passed to the credit of Me-hcijfy. •
    It was important to preserve the trial by jury in its purity; here'a paper, which .had been objected to, and which, on that'objection, the court had refused to permit to be sent out, was yet in some way got to the jury. It may have had an influence upon the jury; but this is not so. much to be, regarded as-the importance of the principle of preventing improper practices upon a jury. .They cited 2 Stark. Ev., 80, 81. Gilb. Ev.,, 4, 5. Peak. 168, 169. Mumfordv. McPherson, 1 Johns. R. 413. Share v .Anderson, 7 Serg. & llawle, 433. 1 John Ch. R. 273, 282.

      Montgomery (with whom was Ilopkins, whom the court declined to hear,) for the appellee.
    The objection to swearing the jury is met by the express terms of the act of assembly referred to.
    Th.e point in issue it,is true was whether Plains .had authority to sue, but it does not lay in the mouth-of the defendant to object that there was no plea to the merits; he might have-put in such plea; but he chose to rest his defence on the issue joined. The replica» lion of the plaintiff contains an averment of the transfer to Mains, and of the mistake in not making it a part of the written power. If the defendant considered this replication objectionable, he should have demurred to it, instead of which he joined issue upon it, and cannot now complain that evidence was received to sustain it.
    If an issue in fact be joined, upon the replication to a plea in abatement, and found for the plaintiff, the jury should assess the damages, and the judgment is peremptory for the delay, quod re-cuperet, and not quod respondeat. 1 Chit. PL 455. 2 Sanders, 211, note 3. If the jury do not assess the damages, a venire de novo is awarded. Upon a demurrer in the case of a plea in abatement. there must be a respondeat ouster. 3 V/ilson Rep., 367. % <Arch. Prac. 3, 4. Wright v. Holly, 3 Wendel. Rep., 258. Wallace Rep. 57, 8. The defendant was permitted to give any eviden ce which went to the merits of the claim. It was not pretended on the triai that the $1000 had been paid by Mehaffy, nor was any receipt produced, or other evidence of payment.
    The objection as to the evidence going to affect a written instrument is wholly untenable.. In the first place the evidence went to sustain the issue, for by that it was open to the plaintiff to prove an authority either in writing or by parol, and in the second place the evidence did not contradict or vary the instrument, but explained a latent ambiguity by ascertaining the nature of the debt assigned. The instrument given in evidence was in form'a power of attorney, but in substance, which alone is regarded, it is an assignment. It assigns the claim against Pedan, which by parol evidence was ascertained to be a elaim for contribution, and such assignment would carry the remedy against Meliaffy, as well as every other remedy.
    The rule that a bond may notbe given in evidence in assumpsit does not prevail here, so as to exclude the bond of indemnity to Mehaffy and Duffy. It went to ascertain the extent of Redan’s default. Thompson v. While, 1 Dali. 428. Charles v. Scott, 1 Serg. & Rawle, 294.

    It cannot be pretended that the judgment creditors, or creditors by mortgage of Share had a lien on the claim, which was a chose in action; there is no equity which would vest in them this right; nor do they make any such claim. No plea or issue was put in, which could raise the question, and it does not lay in'the mouth of Me-haffy to interpose this objection. '
    The paper which was out with the jury was altogether immaterial, and had no effect upon their verdict.'
   The opinion of the court was delivered by

HustoN, J.

--The defendant appeared, prayed oyer of the writ, and of Henry Hains’ power to sue, and special imparlance; and a rule was granted on plaintiff’s attorney to filG his warrant of attorney, and he filed it. This may seem strange to those in other states, but in fact occurs so seldom, that many lawyers in full practice, for a long time, never had, and never have been called on to file a warrant of attorney. The client spealis, or writes to the lawyer, and gives him a fee, and he attends to the matter. After oyer, defendant pleaded in abatement.

A declaration was filed, and a rule to plead and second rule; the court ordered the plaintiff to reply to the plea in abatement; and he did so, and issue was joined on the right of Henry Hains to bring this suit. The plaintiff’s replication to the plea was rather argumentative; but there was no demurrer; the defendant chose to go to trial before a jury.

The jury gave a verdict for the plaintiff, and assessed the damages. There are many reasons filed why a new trial should be granted, and not a few of them, such as ought not to have been presented to any court. It is usual to bring a suit as this is brought, in the name of one person, for the use of another. Since the last term Henry Share had died, and formerly, by the decisions of this court, the suit could not have proceeded until his administrators were substituted; but an actof assembly, of the 23d of April, 1829, had in plain terms directed that the suit should proceed notwithstanding the death of the nominal plaintiff. It is a wise and beneficial act. Henry Share did not institute the suit, could not have discontinued it, and was not liable for costs. lie was a mere formal part of the machinery of a suit. The judge proceeded with the tx-ial, although his death was proved; and this is the first ground assigned for a new trial; and affords one of the most striking instances of the want of reflection with which such motions are made, and reasons for new trials are sometimes filed. Wc are called on to say the above act is in force.

It has been settled that in certain cases where issue is joined on "a plea in abatement, the jury, if they find for the plaintiff, must assess the damages. The court so instructed the jury in this case, and permitted evidence of the amount to go to the jury; this is the next reason assigned for a new trial. The cases cited prove the law to be as stated by the judge, and no authority or dictum to the contrary has been produced; and it is admitted, that if Hains had a right to sue, there was nothing to do but calculate the amount. Why this decision of the judge was brought before us I know not.

I shall consider the 3d and 4th reasons together, on the admission, in evidence of the assignment or power of attorney, when proved by the subscribing witness, and the admission of the evidence of Wit~ Ham Childs, who drew it, and was a subscribing witness to it.

There will be no end of discussions 'about the admission of pa-rol evidence, where there is, álso a writing between the parties; but it will, and must be admitted, as long as the attainment of justice is the object of courts. Certain general rules have been attempted to regulate this admission. It is said in many cases it is only admissible where there is mistake, fraud, or trust. Now if the whole contract is fairly and fully reduced to writing, and that writing is not attempted to be used in a different way, or for a different purpose from the meaning and contractof the parties, nobody ever would, or will wish to introduce parol evidence. This rule, then, proves nothing.

Another expression has obtained some currency, viz: a contract cannot be partly in writing, and partly in parol. This differs from the former; it is worse than useless; it is incorrect, wherever there has been fraud, or mistake; for when the fraud is developed or the mistake corrected, if not totally set aside, it is carried into effect according to the written contract, corrected by parol evidence, and does always consist of both written and parol, where any part of the bargain is put in writing.

It frequently happens that the parties, and the scrivener, understand perfectly the matters which are the subject of the contract, and supposing that there will be no dispute, or that every body will know all that they know, the very subject-matter of the contract is described so vaguely, or indistinctly, as that a stranger cannot comprehend with certainty what was intended to be effected by tho agreement. A familiar instance of this is an agreement to sell a house in Lancaster, and tho seller has more than one house there. Equal, or greater uncertainty may arise on an agreement to transfer a claim. In this case, as the parties and the scrivener knew that Mehaffy had a bond of indemnity from Lytle, they seem all to have considered that Share, or his assignee, might pass over Me-haffy, and at once recover from 'Lytle. They do not seem to have conceived that-Lytle could only be reached through Mehaffy, or rather thought that as Mehaffy was ultimately safe, they need not name him. The scrivener, however, proved distinctly that the whole matter was explained; that Share had paid more than his proportion, and Pedan much less; that thus Share was entitled to contribution from his co-obligors; to be sure, it was added that a particular co-obliger was indemnified; and the mistake consisted in supposing that Share had immediate redress on this indemnity. It was this claim for paying more than his proportion; for paying what Mehaffy ought to have paid, which was alleged to be assigned, and which the jury have found was assigned; and the explanation by the scrivener was necessary to the attainment of justice, becau.se it was necessary to understand the subject-matter to which the power irrevocable applied.

It is next objected that the power of attorney, after being proved, was permitted to go to the jury; it did not go until after Childs was examined, and then went because the evidence, being partly written and partly parol, the jury alone could decide on its effect.

5th and 7th reasons. — The bond of indemnity from Pedan, and Lytle to Mehaffy was also objecled to, and permití eel to go to the jury. The witness had stated that shortly before Mrs. Evans had sued on her bond, the defendants met and settled, to ascertain, as between themselves, how much of the remaining debt to Mrs. Evans each ought to pay. -At this settlement it appeared that Pedan was most in arrear with his payments, and that the witness then drew the bond from Pedan with Lytle as his security, to Mehaffy and Duffy to indemnify them, in case they should he compelled to pay the whole or part of what Pedan ought to pay. The bond was given in evidence to show the amount which on settlement all parties agreed was due by Pedan, in which point of view it was clearly evidence. This very point was decided by this court, in Charles v. Scott, 1 Serg. & Baiole, 294, and is the ordinary practice whore an action of assumpsit can, or must he brought, and the amount appears by a writing under seal, or a judgment; it is always dono where a surety, or co-obligor pays off the bond, and sues the principal or the co-obligor, to recover from him. The bond or judgment is shown to prove the amount paid.

As soon as it is decided that the jury in this cause must find the amount due the plaintiff from this defendant., (in case they find for the plaintiff,) it follows that evidence to prove that Share was in - debted to Haim, and how much, is admissible and necessary.

As t.o the evidence offered by the defendants: That TIains was mistaken in first sueing Lytle, that it-was decided such suit did not lie, and that he was non-suited; this was no reason why he ought not to recover in this suit against Mehaffy.

The next two offers were the same; the one was to show all the judgments against Henry Share and the other to show a particular one. This claim against Mehaffy was not bound by any judgment; it was a chose in action, and could not have been levied on. But it was said, that as Share’s land, or the proceeds of it, had been taken to pay money which Pedan ought to have paid, or which the other joint obligors ought to have contributed to pay, therefore the judgment creditors of Share ought to have been substituted in his place, and had the money recovered from Mehaffy, or Pedan. It has been decided, and may bo considered settled, that a surety who has paid money for his principal, may have the judgment assigned, in order to levy on lands of the principal, to indemnify himself; here there was no judgment against Mehaffy. Has ft ever been decided, that if one man pays money for another, any court can compel that other to assign a chose in action to indemnify him who paid? But no surety paid this money. There was, then, no surety who could ask an assignment of this judgment; Pedan had no property; an assignment of the judgment against him was worthless. The writ was not served on Mehaffy; there was no judgment against him by Mrs. Evans, which she could assign to any one; Share had nothing but a right to contribution, which he alone could sue, and the proceeds of which suit he could give like any other chose in action, to any one of his creditors. Besides, Share, Mehaffy, Duffy and Pedan, were tenants in common of the lands purchased, had given their bond for the purchase money; each was a principal; neither, simply a surety. I don’t know of any case in which one so situated, who has paid more than his share, has been substituted, and has had the judgment assigned to him, to enable him to use it to collect from the others. If it were so assigned he mightlevy all from one; that one must have it assigned, and may levy all from another, and it may go on in a circle. A surety may levy all from the principal, or from, one of the principals.

They talso offered the record of a former suit by Share for Hains v. Mehaffy, which they say was for the same cause of action. I shall not stop to inquire whether it is, or not; it was not plead in abatement or bar; it is still open, and if there be a recove-, ry in this, there can be none in that suit.

Next eome objections tq the eharge of the court. I think the law was correctly stated by the court;-1 shall only add two authorities: in Richardson v. Stewart, 2 Serg. & Rawle, 84, the matter was decided: which, as the statement of the case is not given, I shall explain. Stewart had purchased land of R. Neave, and paid money, and had a clause of warranty in his deed. In the course of a long contest about the land, he became so involved as to be com-., pelled to take the benefit of the insolvent law. In his assignment he transferred to his assignees, “a claim on R. Neave for- the recovery of- money paid him for land. ” The assignee, however, proceeded 'for the land; it was made a point that Steivart had not transferred any right to the land; but the court held otherwise, and the land was ultimately recovered. In Donley v. Hays, the assignment of a bond was held to amount to an assignment of such interest in a mortgage to secure that and other bonds,ras corresponded to. the amount of the bond, and the assignment of the bond was a transfer of the right to the sum secured, and passed all the remedies and all the securities which the assignor had for that debt; and this is true where there is no express agreement to the contrary. 17 Serg. & Rawle, 400.

As to the damages; there is no groundfora newtrial onthis account ■ ■ — to remove all doubt as to whether Pedan had paid any money after the settlement between the parties, the plaintiff called Mrs. Evans to give testimony on this matter; the defendant objected to her, and plaintiff did not insist, and she was not examined. Now if counsel will object to every-thing, without reflecting on its effect, it would be strange if this court should grant them a new trial, that they might examine a witness who was in court, and offered to prove the very matter; for let it be remembered, they ask a new trial that they may examine Mrs. Evans on the very subject, and respecting the precise facts which she was offered to prove, and which they resisted. We perhaps ought to take it; that the object is the delay of another trial, and that in fact, that lady would give no testimony which would be in their favor.

Rogers, J. — Plaving been of counsel in the cause, took no part,

Judgment of the Circuit Court affirmed.