author: Mercur, J. —

text:
    Wilson versus Martin, Executor, &c., of Belford.
    1. After a note under seal from Frow to Wilson was due, at the request of Frow, Wilson agreed to continue it, if Frow would give security. Belford agreed with Wilson to become surety, and there being no room at the bottom of the note to sign his name, Belford said it would do to sign on the back, and in signing thus said to Wilson, he understood he was “ going on the note as security.” Held, this was within the Statute of Frauds, and Belford was not liable.
    2. The endorsement, the testimony being parol, did not take it out of the statute.
    3. Endorsement in blank of note not negotiable is not evidence of a written promise to pay under the statute.
    4. Murray v. McKee, 10 P. F. Smith 35 ; Schaffer v. Bank, 9 Id 144, followed.
    May 22d 1878.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Juniata county: Of May Term 1873, No. 79.
    This was an action of assumpsit, brought August 26th 1871, by William W. Wilson against Amos H. Martin, executor, &c., of Joseph M. Belford, deceased.
    The cause of action arose under the -following circumstances, evidence of which, under objection and exception, was received by Junkin, P. J., on the trial of the cause December 5th 1872.
    Sulouff, Frow and Parker had executed to the plaintiff a note as follows:—
    “ One day after date we or either of us promise to pay to William W. Wilson or order the sum of Twenty-six Hundred and Twenty-five Dollars, for value received.
    “ Witness our hands and seals this 14th day of May 1867.
    $2625.
    Jacob Sulouee, Thomas J. Frow, Thomas U. Parker, [l. s.]” s.] s.]
    The note havingbeen due about eighteen months, Frow, in company with the plaintiff, told Belford, the decedent, that plaintiff held this noto against them, but if they would give him security they might hold the money for some time, and Frow asked Belford if he would go security. Belford said “ Yes.” The note was presented, and Belford said : “ There is no room for me here to sign this note. I suppose it will do as well if I sign the note on the back.” About the time he was going to sign the note, plaintiff said: “ Now, the understanding is, you are going on this note as security.” Belford replied, “0 yes, sir,” and signed his name on the back of the note, thus, “ J. M. Belford,” without anything more.
    The court instructed the jury that the plaintiff could not recover,

      * * * “ 1. Because the endorsement of Belford on this sealed note creates no liability whatever.
    “ 2. Because the plaintiff, in order to establish a liability or undertaking on the part of Belford to pay this debt of Sulouff, Erow & Parker, is compelled to resort to. parol evidence, and as this is offered to show the former’s undertaking to pay the debt of another, it is inadmissible for that purpose, the Act of 26th April 1855 forbidding. Jack v. Morrison, 12 Wright 113; Schafer v. Bank, 9 P. E. Smith 144, show “ that an endorsement is not a note in writing, as required bythe statute,” and “ that no proof of liability for the debt of the maker different from that ■which the endorsement imports, can be made by parol.” The offer here is to show that when Belford wrote his name across the back of this sealed note, he agreed that it. should bind him all the same as if his name had been signed below Sulouff, Frow & Parker’s, and this cannot be done; it would be establishing Belford’s liability by parol, and not by the writing itself.” * * *
    The verdict was for the defendant.
    The plaintiff took a writ of error, assigning for error the instruction of the court.

      JE. D. Parker, for plaintiff in error. —
    The consideration of a written agreement to answer the debt- of another, may be shown by parol: Shively v. Black, 9 Wright 345. The parol evidenoe was introduced to show that by reason of want of room the name was put on the back of the note, and that, in fact, Belford r\*as one of the makers. Parol proof is admissible to show mistake: Martin v. Berens, 17 P. F. Smith 459. The Statute of Frauds does not prevent showing a mistake by parol: Hewes v. Taylor, 20 P. F. Smith 387; Steininger v. Hoch, 3 Wright 263. This is a promise in writing: Paul v. Stackhouse, 2 Wright 302; 2 Story on Contracts 675, and cases in notes; 2 Parsons on Contracts 297-299.

      P¡. 8. Doty, for defendant in error.
   The opinion of the court was delivered, July 2d 1873, by

Mercur, J. —

The plaintiff claimed that the defendant’s testator was liable to him, as surety or guarantor, for the payment of a note under seal, which he held against three joint and several makers. He gave in evidence the endorsement of the testator, in blank, upon the back of the note, and then parol evidence of the agreement of the testator to become responsible for its payment. The court held the evidence insufficient, and directed the jury to find for the defendant. This instruction is assigned for error.

The first section of the Act of April 26th 1855, Purd. Dig. 724, pi. 4, entitled “ A Supplement to the Act for the Prevention of Frauds and Perjuries, passed 21st day of March 1772,” has several times been considered by this court. Its language is clear and explicit, that no action shall be brought “ whereby to charge the defendant upon any special promise to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized.” The court has uniformly manifested a determination to enforce the provisions of the act for the purposes indicated in its title.

Giving to the parol testimony the force claimed for it by the plaintiff, is, in effect, establishing the defendant’s liability wholly by parol. The note was past due when the testator' endorsed it. Even if the testator had written his name at the foot of the note, where it is claimed he would have placed it if the space had permitted, the writing would not have shown the conditional obligation which the testator agreed to assume. If, however, he had done so, the writing would have shown an absolute promise, and the requirements of the statute would have been complied with. The case stands upon different grounds. The endorsement in blank of a note not negotiable is not such written evidence of a promise to pay as the statute, requires: Jack v. Morrison, 12 Wright 113; nor can it be construed into a parol contract of guaranty: Id. The case of Schafer v. Farmers’ and Mechanics’ Bank, 9 P. F. Smith 144, was twice argued, and the court unanimously held, that an endorsement is not such a note in writing as is required by the aforesaid statute, and that proof of a collateral liability for the debt of the maker, different from that which the endorsement imports, cannot be made by parol. In Murray v. McKee, 10 P. F. Smith 35, the court unanimously reaffirmed those decisions, and, in giving the opinion of the court, Mr. Justice Sharswood says : “ The question ought now, therefore, to be considered as entirely at rest in this state.”

The plaintiff derives no aid from this endorsement, and therefore attempts to establish a liability wholly by parol. This cannot be done. The learned judge was correct in his instructions.

Judgment affirmed.


source: Caselaw Access Project

author: Sharswood, J. —

license: Public Domain

text:
    Buffington et al. versus Summit Branch Railroad Company et al.

    1. A testator in 1794 directed his debts to be paid “in due and lawful time,” and afterwards directed his executors to sell and convey “ the residue and remainder” of his estate, “ and the money arising therefrom to be applied to pay the debts and legacies above.” Held, that this did not continue the charge on his land or its proceeds, and a sale of the land upon a judgment in a suit commenced after seven years, passed no title.
    2. The maxim, “ Stare decisis,” applied.
    3. Alexander v. McMurry, 8 Watts 504, recognised and distinguished. Buehler v. Buffington, 7 Wright 278, followed.
    May 22d 1873.
    Before Read, 0. J.,' Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Dauphin county: No. 72, to May Term 1873.
    This was an action of ejectment brought June 2d 1869, by Lee W. Buffington and Sarah R. his wife, Rebecca M. Robertson, George G. Wheelock and Margaret his wife, Catharine Robertson, Robert H. Robertson, James T. Carter and Mahlon K. Taylor, against The Summit Branch Railroad Company, Joseph Anthony and William E. Ray, for a tract of 300 acres of land.
    The same title was passed upon in Buehler v. Buffington, 7 Wright 278, where the whole facts of the case are given.
    This case was tried November 25th 1872, before Pearson, P. J.
    Both parties claimed under Daniel Williams, who died on or about the 9th day of December 1797, on which day his will, dated May 2d 1794, was proved.
    He directed that “ all just accounts and demands brought in against me or my estate, to my executors in due and lawful time, be paid.”
    After giving a number of legacies and devising a house and lot in Philadelphia, he further provided:—
    “And respecting the residue and remainder of my estate, in possession, right or expectancy, I order and empower my executors hereinafter named, and the survivor of them, to sell and dispose of the same, at private or public sale, and to make such title-deeds or conveyances to the buyers as I could do, and the money arising therefrom to be applied to pay the debts and legacies above. Then the residue and remainder of my estate I give to my said daughter Sarah, and son Daniel equally, share alike.
    “ And I do hereby appoint my aforesaid daughter, Deborah Field, my daughter Sarah and said son Daniel, to he the executors to this my last will and testament.”
    Letters testamentary were issued to all the executors. Sarah .afterwards married John Moulston. On the 19th of December 1801, John Field (the husband of Deborah, one of the executors) commenced an action in the Supreme Court against “ Sarah Moulston, executrix of Daniel Williams and John Moulston, her husband, and Deborah Field, executrix of Daniel Williams, who survived Daniel Williams, the younger, also executor.”
    The writ was returned, “ Served on Deborah Field and nihil hahet as to the other party.” On the 29th of December 1801, “judgment by consent of Mr. Brinton, counsel for Deborah Field, 7937 4s. 6c7” In September 1803, a scire facias on this judgment was issued by-John Field against “ Sarah Moulston and husband and Deborah Field, executors of Daniel Williams, and returned “ Made known to Sarah Moulston.” On the 29th of July 1807, the death of Deborah Field and the renunciation of Sarah Moulston were suggested, and Clayton Earl and Thomas Mitchell, administrators d. b. n. c. t. a., were substituted as defendants. The case was referred to arbitrators, who, on the 13th of January 1808, awarded for plaintiffs 10807 6s. Id., and “ do not find any assets.” After exceptions to the award it was confirmed, and judgment entered on it April 2d 1808.
    Under a testatum execution to Dauphin county, the land was returned sold to John Field for $212.19, October 15th 1808, and deed made to him by the sheriff, and acknowledged June 1st 1809. The plaintiffs by a number of intermediate conveyances derive their title from John Field
    The defendants gave in evidence deed December 1st 1806, from John Moulston and Sarah his wife to George Moulston, she conveying as executrix for all the lands of Daniel Williams, including the tract in dispute; and reconveyance, September 29th 1807, to Sarah Moulston; devise April 10th 1833, of the premises, by Sarah Moulston to her children John and Deborah. ■ Deed September 26th 1835, John and Deborah Moulston to Henry Buehler. Patent March 29th 1837, to Henry Buehler.
    The defendants then gave in evidence the record of the suit reported in 7 Wright 278.
    Also record of the trial, March 23d 1863, when plaintiffs suffered a nonsuit, and evidence deducing the title from Buehler, after the decision of the former case, to the present defendants. Judge Pearson, amongst other things, charged:—
    * * * “We come now to a much more difficult and important branch of this case: had the debt due to John Field by Daniel Williams ceased to be a lien on his land at the time of the sale ? If it had, the sheriff’s deed confers no title. Prior to the 19th of April 1794, the lands of decedents were, to all intents and purposes, considered chattels for the payment of debts, and the lien thereof was indefinite as to time and extent, but embraced all the real estate of the decedent within the Commonwealth. On that day an act was passed limiting the lien as to time, but not as to extent. The statute requires that a demand shall be made, or an action for the recovery of the debt be commenced, and duly prosecuted against the executor or administrator, within the period of seven years from the death of the debtor ; or where the debt is not payable, a copy filed in the office of the prothonotary of the county where the lands lie, within that time. This act, with a slight alteration, was re-enacted on the 4th of April 1797. The original law was in force when Daniel Williams made his will, and therefore his debts came within its provisions.
    “ Was the proceeding of John Field,' against the executors of Daniel Williams, in time to keep up the lien given by law against the estates of decedents ? * * * Everything connected with the case was a nullity, and when a regular judgment was obtained, the lien on the land was gone twice over. We considered on the former trial that the claim against the land was kept alive by the provisions of Daniel Williams’s will,buttbe Supreme Court decided that this debt was not brought against the estate, ‘ in due and lawful time,’ and therefore could not be paid. That decision is conclusive on us, and our instruction is binding on you. We therefore say, that Field’s judgment was not a lien on this land, consequently the plaintiffs have no title, and cannot recover. Their whole title depends on the judgment, and the sheriff’s deed under it. * * * We consider that every question of any moment connected with this title, wras settled by the Supreme Court on the former trial. On the faith of that decision, the land passed through many hands, at very high prices, and purchasers should feel that they could rely on the decisions of our court of the last resort, either in buying or improving. Stare decisis is a very important principle in regard to land titles, and one to ■which the good of the country requires that we should yield, whether it coincides with our original opinions or otherwise.” * *
    The verdict was for the defendants.
    The plaintiffs took a writ of error and assigned the charge for error.

      F. W. Hughes and Hamilton Alricks, for plaintiffs in error.—
    The order by the testator to sell this land was a conversion, and the descent was broken; there is no limitation of charges against personal estate of a decedent: Dundas’s Appeal, 14 P. F. Smith 325; Brown’s Appeal, 3 Casey 62. A sale under judgment against the personal representatives passes a good title: Leiper v. Castner, 10 P. F. Smith 177; Baldy v. Brady, 3 Harris 103; Willing v. Peters, 7 Barr 287.

      J. W. Simonton, for defendants in error,
    cited Buehler v Buffington, supra; Miller & Bowman’s Appeal, 10 P. F. Smith 407.
   The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

A former ejectment for the same tract of land as that now’ in controversy was brought by writ of error before this court in 1862, and the title of the present plaintiffs was decided to be bad by a solemn adjudication and without a dissent: Buehler’s Heirs v. Buffington, 7 Wright 278. The judgment of the Court of Common Pleas of Dauphin county was reversed, and a venire facias de novo awarded. When the cause had been remitted and was again ordered for trial in that court March 23d 1863, the plaintiffs suffered a nonsuit. The defendants then sold their interest to others, and it was finally vested in the Summit Branch Railroad Company. Six years after the nonsuit in the first ejectment, the present suit was commenced. The main question in that controversy, and the decision of which we are now asked to reconsider, arose upon the construction of the will of Daniel Williams. The determination cast no doubt whatever upon the principle so well settled in Alexander v. McMurry, 8 Watts 504, and other cases which have followed in its wake, that when executors are directed by will to sell land for the payment of debts, a trust is created, and the limitation of the lien of debts upon the land of a decedent under the Acts of Assembly has no application. On the contrary that principle was distinctly recognised and re-affirmed, but the decision was rested on the peculiar phraseology of the will. It was held that the clause which directed that the proceeds of the sale should be appropriated to pay all just demands brought to the executors “in due and lawful time,” distinguished this case from all others, and constituted it an exception. “ Surely,” said Mr. Chief Justice Lowrie, “ this clause is sufficient to show that the testator did not intend to supplant the temporary charge of the law by a permanent one of Ms own creation, for he refers to the ‘ lawful time;’ and moreover that is not mere formal language. He may not have known or thought of any special legal limitation, but his language shows that he was willing to trust to the law for a proper one. He dedicated his land for his debts just as the law dedicated it. We think, therefore, that the devise does not reject but retains the limitation in the Act of 1794 (repeated in 1797), and that this debt had ceased to be a lien or charge on the land at the time of the first effective process for its recovery, and consequently that the sale under the judgment passed no title to the purchaser.”

If there is any case to which the principle of stare decisis should be sternly applied, this is that case. Even if convinced that the former determination was clearly wrong, no court ought ever to overrule its own decision upon the very same title upon the faith of which purchasers have invested their money; more especially ought this rule to be adhered to when the decision is founded upon the construction of the words of a will, and forms no precedent except in a question arising upon a will in precisely the same language. If any counsel desirous of securing the legal limitation of the lien of debts, but at the same time of ordering a sale and creating a trust, should have followed the precise words of the will of Daniel Williams to accomplish the intention of the testator, his client, he would have had the best reason in the world to believe that he was safe. In every point of view it would be palpable injustice not only to the purchasers now before us, but to the profession and the public, to reconsider and overrule the former decision of the court. We affirm this judgment, on the authority of Buehler’s Heirs v. Buffington.

Judgment affirmed.


author: Williams, J. —

text:
    Moist’s Administrators’ Appeal.
    1. Partners took a nephew ten years old ; he lived with them seventeen years and worked for them ; they agreed to pay him wages all the time he stayed with them. Held, that this was evidence of a contract.
    2. After the death of one partner, the survivors settled with the nephew and paid him what they thought they owed him : Held, that the estate of the deceased one was liable for the third of the amount.
    3. One partner acting in good faith within the scope of his authority can bind his fellows, and he is not liable for loss from mistake or error in judgment.
    May 23d 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Orphans’ Court of Mifflin county: No. 83, to May Term 1873. In the estate of Moses Moist, deceased.
    This proceeding commenced by exceptions to the administration account of M. E. H. Kinsel and W. R. Bratton, administrators, &c., of Moses Moist, who died in 1868. The contest was as to the propriety of the credit in the account of an item of $400 paid to Jonas Moist and Joseph Moist, who were surviving partners of the decedent. The payment was the decedent’s share of wages alleged to have been due by the firm to one Joseph Runic.
    The auditor found that the Moists, who were brothers, had been partners in farming for a number of years. Runic, who was their nephew, came to hire with them in 1861, being then ten years of age, and with some intermissions lived and worked with them until the death of the decedent in 1868, up to which time the surviving partners admitted that the firm owed Runic $1400 for wages, and they paid him. The administrators paid the partners $400 as the decedent’s share of this indebtedness. He also found that there was no fraud on the part of the surviving partners.

      Jonas Moist testified that Moses, Joseph and he agreed to pay Runk wages for all the time he stayed with them. Runk claimed wages just like other men. Witness thought they honestly owed Runk $1400; he was a good faithful hand.
    The auditor reported that the credit should be allowed, and that the costs should-be paid out of Moses Moist’s estate. An exception was filed to the report, that the auditor erred in allowing the credit.
    The court (Bucher, P. J.) was of opinion that there was not sufficient evidence of á contract with Runk, and that his service should be referred to relationship; he was also of opinion that there was no fraud intended by the surviving partners. They sustained the exception, disallowed the credit, and directed that the administrators should pay the costs of the proceeding and of the audit.
    The administrators appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.

      D. W. Woods, for appellants. —
    The presumption of a contract to pay arises from the performance of the services and is overcome only as between parent and child: Smith v. Milligan, 7 Wright 107; Gardner v. Heffley, 13 Id. 163. The two partners had the same right of settling the affairs of the firm and paying the debts after dissolution as before: Holden v. McMakin, 1 Parsons 298; Heberton v. Jepherson, 10 Barr 125; House v. Irwin, 3 W. & S. 347. The administrators were honest and no misconduct was alleged ; they should not have been ordered to pay the costs: Graver’s Appeal, 14 Wright 189; Yoder’s Appeal, 9 Id. 394.
    6r. W. Mder, for appellees,
    cited Neel v. Neel, 9 P. F. Smith 349.
   The opinion of the court was delivered, July 2d 1873, by

Williams, J. —

It is clear that the decree in this case must be reversed. The evidence in support of Runk’s claim for services rendered the partnership, was sufficient to justify the administrators in allowing the surviving partner credit for its payment, even if they would be chargeable for allowing the credit if the claim had not been shown to be valid. The testimony of Jonas Moist was positive and uncontradicted, that all the partners agreed to pay Runk wages for all the time he stayed with them ; and that the surviving partners'settled with him, and paid him the amount they thought they honestly owed him. How, then, can it be said that there was no evidence of a contract or express promise to pay for the services ? The evidence, if believed, was clearly sufficient not only to establish the contract, but the value of the services. What better evidence then could have been given to show that the claim was valid, and that the credit for its payment was properly allowed? If it is not just, why should the surviving partners have paid it, when two-thirds of the amount came out of their own pockets ? There is no pretence that they were guilty of fraud or collusion in making settlement. The auditor failed to-discover any evidence of fraud or collusion. We do not believe, say the court, that any fraud was intended here on their part. If then the settlément was made in good faith, it was binding on the administrators, and they had no right to refuse the credit. If it had been made in the lifetime of the deceased partner, it is clear that he would have been bound by it, unless he could have shown that it was fraudulently and collusively made. Why then should it not be binding on his administrators? The principle which governs the decision of this case, is that the acts of one partner within the scope of his authority, are binding on his copartners, and if he acts in good faith, he is not responsible to them for any loss arising from mere mistake or error of.judgment. It was the duty of the surviving partners to make the settlement, and as it was honestly and fairly made, the administrators were bound by it. The Orphans’ Court was therefore in error in surcharging the administrators with the sum of four hundred dollars, and directing that they should pay the costs of the proceeding, including the costs of the audit.

Decree reversed, and the report of the auditor confirmed, with the exception of so much thereof as finds the costs of the audit be paid out of the money of Moses Moist, in the hands of M. E. H. Kinsel and Wm. R. B. Brat-ton, his administrators. And it is further ordered and decreed, that the costs of the audit and of the proceedings in the Orphans’ Court, and the costs of this appeal, be paid by the appellees.


text:
    Bergner versus Thompson.
    'Thompson being embarrassed., through his attorney-at-law and a friend negotiated with Bergner, who was a creditor, in relation to the sale of a hotel. There was evidence that the attorney and friend offered it to Bergner for $13,000, and he accepted the offer, the conveyance was made by Thompson to a railroad company, who paid §13,000 to discharge his debts and $7000_ to Bergner. In a suit to recover the amount in Bergner’s hands after deducting what was due him, the question was whether there was a sale to Bergner. The court charged that there was no authority in these alleged agents to sell, and their act was not ratified, as Thompson refused to make the deed to Bergner, but made it to the company. There was nothing in the evidence to permit Bergner to hold the §7000: “ his right is to compensation, not to take the property or purchase-money.” Held to be error as a binding instruction, the whole was for the jury.

      May 23d 1873.
    Before Read, C. J., Asnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Dauphin county: No. 19, to May Term 1873.
    This was an action of assumpsit .brought February 24th 1870, by William G. Thompson against George Bergner.
    The plaintiff was the owner of the State Capital Hotel, and also of the City Hotel, in the city of Harrisburg. Being much embarrassed, he entered into a negotiation with the defendant for the sale of the City Hotel. A sale' was consummated to the Pennsylvania Railroad Campany, and $7000 of the purchase-money received by the defendant. The plaintiff alleged that the defendant was his agent, that the proceeds were to be applied to the payment of his debts, and that after their payment, there remained a balance belonging to plaintiff in the defendant’s hands, to recover which this suit was brought.
    The case was tried March 21st 1872,-before Pearson, P. J.
    The plaintiff gave in evidence the records of two judgments against him in favor of the defendant — one for $3000, entered in 1868, and the other for $4000, entered in 1869; also a payment to defendant of $1538.46, May 8th 1869, and of $1000, August 26th 1869; also a payment of $7000 to the attorney of Bergner from the Pennsylvania Railroad Company, for which a receipt was entered on the record of the judgments; there was evidence also of other payments.
    The defendant, amongst other things, 'testified that he had a book account of $682.96 against the plaintiff, and that there were other accounts between them, and on a settlement of these accounts there was a balance of $818.35 due to Thompson, which was credited on the $3000 judgment; he afterwards credited the $1000 to plaintiff, and then issued execution to make himself secure; there was no more paid.
    A. J. Herr, Esq., testified that he was the attorney-at-law of plaintiff; Kirk Haines came as Thompson’s friend and they went to see defendant; “ Haines proposed to have this settled; said to Bergner we will give you $13,000 for the City Hotel property, and burn the books. Bergner agreed to it. Thompson said he would make the deed to the Pennsylvania Railroad Company, not to Bergner.”
    The defendant testified: “ To save additional expense, Thompson agreed to make a deed to the company for $20,000. I agreed to give them the title for $20,000; I agreed to give $13,000, cancel all claims, and burn the books. I effected the sale at $20,000. I had no further trouble. * * * I received my $7000 from the Pennsylvania Railroad Company; the rest went to Thompson’s creditors. The judgments were satisfied ai.d books credited in full. The $20,000 never went to Thompson.”

      Kirk Haines testified: “ Thompson said he was in trouble; Bergner had issued execution against him; said wished me to help to get this fixed up; had several persons negotiating with Pennsylvania Railroad Company; sheriff came; Herr spoke of arrangements through Bergner; could not sell at $24,000 ; came down to $20,00; we went to Bergner’s; we had fixed on $20,000; Thompson said Bergner had $7000 against him; that was to come off the $20,000; to pay $20,000 ; $7000 to come off; the sum to be paid was $20,000; $7000 to come off to pay the judgments; I don’t recollect burning the books being spoken of.”
    The plaintiff testified: “ I never sold the property to Bergner for $20,000 ; the draft to Bergner was to pay his judgments; the $13,000 was applied to other judgments.”
    There was in evidence deed of January 10th 1870, plaintiff to Pennsylvania Railroad Company, for City Hotel; consideration $20,000.
    There was other evidence stated in the opinion of Judge Mercur.
    Judge Pearson, after stating the facts, charged:—
    “ It is contended here that this over-payment arose out of the sale of the property to the railroad company, and that Bergner was to have, in discharge of his debt, all that the property would sell for above $13,000; that sum was paid to Thompson, and the residue of $7000 to Bergner. The latter claims that he bought the tavern-stand for $20,000, sold to him by Messrs. Herr and; Haines as agents of Thompson; the one was an attorney at law, and as such had no power to sell; the other was an agent by parol, and from his statement it is by no means certain what he meant or intended. Thompson and wife refused to make the deed to Bergner, but made it directly to the company. The judgments of Bergner were paid off out of this purchase-money, without his having given credit for the previous payment, and this suit is brought to recover that money, received, but never credited. The $7000 were not paid to Thompson, but to Detweilor, Bergner’s attorney, and by him applied on the judgment still standing open, without having entered on them the previous payments. In that way they were overpaid. [The attorney for the defendant contends that, as there was no mistake, this money cannot be recovered back. We think otherwise. The action of assumpsit is a most liberal and equitable one ; will lie whenever one man has received money which, in equity and good conscience, belongs to another. This over-payment was not made under any decree or order of court; was not collected by execution, but came into the hands of the'plaintiff’s attorney in the judgment through the purchaser of the house and lot, and was applied by him. Thus Bergner has received the money twice, and cannot .retain it with a good conscience. This is the proper form of action in which to recover it back.] It is said that Bergner was at trouble and expense in effecting the sale of the property to the railroad eompany, which was doubtless the case, and for which he should be liberally paid. Make him a full and fair allowance in settling the claim, and find your verdict for the balance, if anything, which he was overpaid on the judgments.”
    The counsel here inquired of the court whether Bergner could claim the property on the arrangement with Herr and Haines, or the money received of the railroad company above $13,000, and asked the court to charge the jury on that point, to which the court answered that
    “ [He certainly could not claim the property; there was no legal authority in these alleged agents to sell it to him, and we cannot look on the contract as ratified by Thompson, as he refused to execute the deed to him, but made it to the company. To say that the right to the purchase-money would pass, is the same in law and substance as to give the estate; therefore we could see nothing in the evidence which would permit Bergner to hold the money above the $13,000. His right is to compensation, not to take the property or purchase-money.]”
    The verdict was for the plaintiff for $1663,46.
    The defendant sued out a writ of error: — he assigned for error the parts of the charge in brack ets.

      D. Mumma (with whom were J. S. Detweiler, and R. A. Lamberton), for plaintiff in error. —
    Whenever a party may in good faith receive money although he could not have recovered it, it cannot be recovered again: Espy v. Allison, 9 Watts 462; Carson v. McFarland, 2 Rawle 118; Hinkle v. Eichelberger, 2 Barr 484; Bilbie v. Lumley, 2 East 469; Mowatt v. Wright, 1 Wend. 390; Lackey v. Mercer Co., 9 Barr 319; Edgar v. Shields, 1 Grant 363; Colwell v. Peden, 3 Watts 328.
    The questions whether the transaction was a sale to Bergner; or whether Thompson ratified what was done, should have been left to the jury.

      J. O. McAlarney, for defendant in error.
   The opinion of the court was delivered, July 2d 1873,by

Mercur, J. —

Two views are presented by the evidence in this case. The one claimed by the defendant in error, that he made the bargain with the Pennsylvania Railroad Company for the sale and conveyance of his property, and his arrangement with the plaintiff was merely to pay him, out of the proceeds, the sum which he owed him; but that the plaintiff received and retained more than that sum. The other, claimed by the plaintiff that he was to have all the property sold for, exceeding the sum of $13,000, in satisfaction of his demands against the defendant; so that he was entitled to take and retain the same whether it was more or less than the defendant’s existing indebtedness to him.

The learned judge appears to have substantially accepted the defendant’s view of the case, and practically to have withdrawn! all the plaintiff’s evidence from the consideration of the jury. In this we think he erred.

The evidence given by the plaintiff was clearly sufficient to have been submitted to the jury. The defendant testified : “ Herr was my counsel; I can scarcely tell what I did say; I got Haines to help arrange the business.” Again he said: “I do not know through whom the arrangement was made.”

Haines testified: “ Thompson said he was in trouble ; Bergner had issued executions against him; said Herr was his attorney; said he wished me to help to get this fixed up; Herr spoke of arrangements through Bergner; we went to Bergner.” Herr testified : “ I was acting as attorney for Thompson ; Haines often came as Thompson’s friend; don’t know if an agent or not; we went to see Bergner; Haines proposed to have this settled; said to Bergner, Will you give $13,000 for the hotel property, cancel the judgments and burn the books ? Bergner agreed to it; Thompson said he would make the deed to the Pennsylvania Railroad Company, not to Bergner; deed not then filled up ; he said he wanted it made to the company, not to Bergner.” Herr, upon being recalled, testified, “ Thompson sold to the Pennsylvania Railroad Company; Bergner did not wish to buy, but concluded would sell to Pennsylvania Railroad Company ; Bergner went to Philadelphia; my recollection is, Haines said, ‘Will you give $13,000, cancel the judgments, and burn the books ?’ The $13,000 distributed was among Thompson’s creditors; the $13,000 was paid on the docket in addition to the $7000; we discovered a mortgage open on the property, due Niningcr from some former owner; the company was then indemnified by bond.’

The defendant testified: “ Haines came to have these difficulties settled; ‘Will you, give $13,000, discharge all of your claims, and burn the books?’ I said I would do it; and to save additional expense, Thompson was to make a deed to the company for $20,000 ; I agreed to give them the title for $20,000; I agreed to give $13,000, cancel all claims, and burn the books ; I effected the sale at $20,000 ; I had to wait for what was due to me; Hall attended to the conveyance; I had no further trouble; Nininger had a mortgage, $12,000 or $14,000, not discharged; Hall refused to counsel the sale till that was removed; I agreed to indemnify the company by a bond; Herr became my surety in double the amount of the balance of the mortgage; I received'my $7000 from the Pennsylvania Railroad Company, and the rest went to Thompson’s creditors; judgments were satisfied, and books credited in-full.”

Here certainly is some evidence of authority given to Haines, as well as subsequent ratification of his acts. Whether it is sufficient under the whole evidence to establish the plaintiff’s view of the case the jury should decide. Under proper instructions it should be submitted to them. The other assignment of error is not sustained.

Judgment reversed, and a venire facias de novo awarded.


text:
    Hill versus Hill.
    1. A devise was, “I give to Sarah and Nancy all the remainder of my real estate, to be divided equally, share and share alike. * * * It is my will that should my daughter Sarah die leaving no issue or child, that her share as above bequeathed to her shall fall back to my estate and be equally divided to Ann and Fanny, daughters of my son, and Ada and James, children of my daughter Nancy.” Held, that Sarah did not take an estate so as to enable her to alien as a fee under the Act of 1855.
    2. The words “issue ” and “ child,” in this devise, are synonymous.
    May 23d 1872.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Blair county: Of May Term 1873, No. 63.
    This was an amicable action and case stated, in which Marcus L>. Hill and Sarah A. Hill his wife, in her right, were plaintiffs, and Ezra H. Hill was defendant. The action was instituted February 23d 1871.
    The facts appearing by the case were as follows:—
    Henry Lee, who died in or about April 1869, by his will dated in January of that year and proved in the succeeding April, amongst other things devised as follows:—
    “ I give and bequeath to my daughter, Sarah Ann, wife of Marcus Hill, and Nancy Jane Stewart, wife of Alexander Stewart, all the remainder of my real estate, to be divided equally, share and share alike, except that if my wife should die first, my daughter, Sarah Ann Hill, to have the mansion-house, with the enclosure around the same, over and above her share. And it is my will, and I do order and direct that my daughter, Nancy Jane Stewart, is to have the use of one-half of the barn for ten years, should the barn fall to that part of the place, by a division, on which the mansion-house stands. It is my will, and I so order, that should my daughter, Sarah Ann Hill, die, leaving no issue or child, that her share, as above bequeathed to her, shall fall back to my estate and be equally divided, share and share alike, to Ann Y. and Fanny K. Lee, daughters of my son J. H. Lee, and Ada Y. and James H. Stewart, children of my daughter Nancy Jane Stewart. And it is my will that if my daughter Sarah A. Hill, and Nancy Jane Stewart cannot agree as to a division of the real estate bequeathed to them, that John Cummins, Samuel Mitchell and John Jackson shall make said division, which division shall be final and conclusive.” * * *

      “Item. — I give and bequeath to my daughter, Mary E., wife of Andrew Smith, of the state of Ohio, the sum of $5000, to be paid as follows, &c.:— * * *
    “ The above five thousand dollars is to be paid out of my personal estate, should there be a sufficiency; if not, then the balance is to be paid by James H. Lee, Sarah A. Hill and Nancy J. Stewart out of the real estate in proportion to each valuation. It is my will that, after my decease, all my personal property not already devised, shall be appraised and sold, and the proceeds applied as above ordered.” * * *
    A division was made in pursuance of the provisions of the will, and Sarah A. Hill and Nancy J. Stewart took possession of their respective parts. On the 2d of January 1871, Sarah A. Hill and her husband, the plaintiffs, entered into articles of agreement with Ezra H. Hill, the defendant, to sell him, in fee simple, a part of the tract set-apart to her, he to pay to the grantors on the 10th of February then next $400. On that day the plaintiffs tendered to the defendant a deed for the premises, and demanded payment of the purchase-money. He declined to accept the deed and pay the purchase-money on the ground that plaintiffs could not convey a fee simple in the premises.
    The question for the opinion of the court was, whether the plaintiffs were entitled to recover the purchase-money; if so, judgment to be entered for the plaintiffs for $400; otherwise judgment to be entered for the defendant. The court entered judgment for the plaintiffs according to the case stated.
    The defendant removed the record to the Supreme Court, and assigned for error that the court so entered judgment.

      H. M. Baldridge, for plaintiff in error. —
    The word issue is construed as a word of purchase or limitation, as will best effectuate the intention of the testator as gathered from the whole instrument: Taylor v. Taylor, 13 P. F. Smith 481. Not being strictly a technical word, never a word of limitation, except when used in a will, it requires less to rebut the presumption arising from its use: Powell v. Board of Missions, 13 Wright 53. The limitation over on the death of Mrs. S. A. Hill without issue or child, being to persons in esse, who are individually named, manifests an intent to use the word issue in the sense of child or children : Walker v. Milligan, 9 Wright 178; Gernet et al. v. Lynn, 7 Casey 94. The intention to use “ children ” as a word of limitation, contrary to its natural import, must be clear. Conjecture, doubt, or even equilibrium of apparent intention will not suffice: Guthrie’s Appeal, 1 Wright 12; Chew’s Appeal, Id. 23.

      T. Banks, for defendants in error. —
    The first devise gives a fee simple: Act April 8th 1833, sect. 9, Pamph. L. 16; 2 Brightly’s Purd. 1475, pl. 10; Walker v. Walker, 4 Casey 40; Williams v. Leech, Id. 89; Schriver v. Meyer, 7 Harris 87; Wood v. Hills, Id. 513.
    The subsequent clause brings us back to the kind of “ issue ” meant by the testator. 4 Kent’s Commentaries 310, defines a definite failure of issue to be when a precise time is fixed by the will for the failure of issue. An indefinite failure means a failure of issue whenever it shall happen sooner- or later without any fixed, certain or definite period within which it must happen. If an executory devise be limited to take effect on “ failure of issue,” or “ without leaving issue,” the limitation is void, because the contingency is too remote, as it is not to take place until after an indefinite failure of issue: Vaughan v. Dickes, 8 Harris 509; Eichelberger v. Barnitz, 9 Watts 450; Criley v. Chamberlain, 6 Casey 165; Amelia Smith’s Appeal, 11 Harris 9; Price v. Taylor, 4 Casey 95; Braden v. Cannon, 12 Harris 172; Haldeman v. Haldeman, 4 Wright 29; Covert v. Robinson, 10 Wright 274; Matlack v. Roberts, 4 P. F. Smith 148; Gast v. Baer, 12 P. F. Smith 35.
   The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

There can be no doubt that by the devise of the premises, without the limitation over in case she should die leaving no issue or child, Sarah Ann Hill took a fee simple. Without a resort to the ninth section of the Act of April 8th 1833, Pamph. L. 249, the words “ all the remainder of my estate” were quite enough to indicate the intention of the testator. The provisions for the division of the real estate between his daughters and the contingent charge upon it of a sum in gross might either of them support the same construction.

But the question here is what ought to be the legal effect of the words of the devise over: “ Should my daughter Sarah Ann Hill die, leaving no issue or child her share to fall back to my estate.” It is too well settled by a long train of authorities to be now a question, that a devise in fee, with a limitation over upon the death of the first taker, leaving no issue, reduces the estate in fee to an estate tail. Eichelberger v. Barnitz, 9 Watts 447, is the leading case, and it has never been shaken. On the other hand, it is equally clear that if there is anything in the will which indicates the intention of the testator that this word “ issue” shall not mean “issue indefinitely” but children, then this construction does not apply. The rule has been well expressedéby Mr. Smith in his valuable Essay on Executory Interests : “ When the limitation over is to take effect, not on an indefinite failure of issue of the prior taker, but on a failure of children only, or on a failure of issue within a given time ; then the limitation over will not raise an estate tail by implication in the prior taker, but he will have a life estate with a limitation over of a springing interest, or a fee with a conditional limitation over as the case may be Smith on Ex. Int. 301; Taylor v. Taylor, 13 P. F. Smith 481. Had the words here been “ should my daughter Sarah Ann die leaving no issue ” the authority of Eichelberger v. Barnitz would have been decisive in favor of the construction which reduced his estate to an estate tail. Had the words been “leaving no child,” just as clearly it would have been a fee in her with an executory devise over. Now it is a canon of interpretation that no word is to be rejected to which a reasonable effect can be given. Upon the construction contended for in favor of an estate tail, the words “ or child ” must be rejected as superfluous, for “ child ” is included in the broad word “ issue,” which precedes it. But it is evident to us that the testator meant to use these two words as synonymous; to define what he meant by issue, he added “or child.” This is the most natural interpretation, and gives effect to every word. In Taylor v. Taylor, the general word “issue” was controlled by a subsequent clause in which speaking of the issue before mentioned, the testator said “ such issue shall enjoy their mother’s right,” which showed that by issue he meant children. We are therefore of opinion that Sarah Ann Hill did not take an estate tail, so as to be now entitled to alien it as a fee by the Act of April 27th 1855, Pamph. L. 368.

Judgment reversed, and now judgment for the defendant on the case stated.


text:
    American Life Insurance Company versus Isett’s Administrator.
    1. In an action on a life policy, the assured having taken his own life, and the allegation being that he was insane, the court charged: “ If the assured was not conscious of the act he was committing, but acted under an insane impulse or delusion sufficient to impair his understanding or will, or if his reasoning was so far overthrown by his mental condition that he was incapable of exercising his judgment in regard to the consequences, the defendants are liable.'1 Held not to be error.

      2. A point was : “ If F. B. Isett, at the time of his death, was conscious that his death would follow the discharging of the pistol in his own hands, there can be no recovery, although he was laboring under mental depression or disturbance of the mind.” The court below negatived the point. Held not to be error.
    3. Harrington v. Keystone Insurance Co., 9 Harris 466, remarked on.
    May 24th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Blair county: Of May Term 1873, No. 77.
    This was an action of covenant, brought to July Term 1871, of the court below, by John S. Isett, administrator, &c., of Franklin B. Isett, deceased, against the American Life Insurance Company, on a policy of insurance, issued by the' defendants, on the life of the decedent. One of the conditions of the policy was: in case the assured should “ die by his own hand, * * * this policy shall be void, null and of no effect.”
    The deceased died on the 14th of March 1871, having committed suicide by shooting himself through the head with a pistol.
    The ground upon which the plaintiff claimed to recover was that the deceased was insane at the time he committed the act which resulted in his death.
    On the trial, May 8th 1872, before Mayer, P. J., of the Twenty-fifth District, much evidence was given on the question of the insanity of the decedent.
    The defendant submitted these points:—
    “ 1. The law presumes every person to be sane, and the burden of proving insanity is upon the person alleging it.
    . “ 2. If the jury believe Frank B. Isett destroyed his life because he was suffering from some physical infirmity, for the purpose of términating his suffering, there can be no recovery in this case.
    “ 8. If F. B. Isett, at the time of his death (if it resulted from his own hands), was conscious that his death would follow the discharging of the pistol in his hands, there can be no recovery, although he was laboring under mental depression or disturbance of the mind.
    “4. If the jury find that Frank B. Isett came to his death ‘by his own hands,’ sane or insane, there can be no recovery.”
    The court charged:—
    * * * “ The execution of the policy, its terms and conditions, the death of Isett and the fact that his death was caused by self-killing, the instrument of death being a pistol fired by himself, the ball penetrating his brain and producing death, are not contested. But the-plaintiff contends that this act of self-destruction was not death by his own hands within the meaning of the words as contained in the policy, but that when Isett discharged the pistol he was insane, and at the time so far unconscious of the nature and consequences of the act he was committing, and the exercise of his will was so far controlled by the diseased state of his mind as to be incapable of understanding it; or, in other words, incapacitated, in the judgment of the law, from committing any act that would operate to defeat the policy.
    “ The defendants contend that when Isett shot himself he had consciousness enough and understanding capable of comprehending the nature and consequences of his act, and thus make it ‘ death by his own hand,’ within the condition of the policy.
    “ Insanity is an abnormal condition of the mind, and the legal presumption is that every one is sane until the contrary is established by evidence sufficient to satisfy a jury, and it is incumbent upon the party alleging insanity to prove it by affirmative evidence.
    “ In this case, if the jury find that the death of Frank B. Isett resulted from the act of self-killing, it will then be their duty to inquire what was his mental condition, as it affected the exercise of his will and the comprehension of the nature of the act that he was about to commit. This is the all-important question in the case, and upon an intelligent solution of it the verdict of the jury must depend. The fact of self-killing being established, or not controverted, it is for the plaintiff to satisfy the jury that Isett was in the mental condition which we have just laid down for their guidance, in order to render the defendants liable upon their policy. Now, what is the evidence upon which plaintiff relies to prove that state of insanity which rendered him incapable of committing ‘death by his own hand,’ or suicide, within the rule, as stated to you ? It will not be necessary to go into a minute detail of the facts and circumstances upon which plaintiff relies to establish the existence of this diseased state of mind. * * * It is claimed by plaintiff’s counsel, and we are requested to charge the jury, ‘ that the fact that the deceased committed suicide is of itself evidence of insanity. We decline thus to charge the jury, but wo say to you that it may be evidence in the case to be considered by the jury, in connection with other facts and circumstances, for the purpose of enabling them to determine the mental condition of the deceased. The fact of the suicide raises no presumption of insanity - All the facts and circumstances in evidence are submitted to the jury for their consideration, and from them, and them alone, they are to determine the question in this case. [If, at the time the pistol was fired, Frank B. Isett was conscious of the act and intended to take his life, and had sufficient mental capacity to understand and appreciate the nature and consequences of his act, the defendants are not liable under the condition of the policy. If, on the other hand, he was not thus conscious, and had no such mental capacity, but acted under an insane impulse or delusion, sufficient to overpower his will, or his reasoning powers were so far overthrown by his mental condition that he was incapable of exercising his reasoning faculties with regard to the act of self-destruction, then the defendants are liable.]
    “ These are the legal instructions and the rule of law by which the jury are to be guided in determining this case. We will recapitulate, so that the jury may have no misunderstanding.
    “ In the first place, you will determine, applying these rules of law to the whole of the evidence submitted for your consideration, [if, at the time Isett fired the pistol, he was conscious of the act he was committing, and intended to take his life, and had sufficient mental capacity to comprehend and understand the nature and consequences of this act', then defendants are not liable. If, on the other hand, he was not thus conscious, but acted under an insane impulse or delusion, sufficient to overpower his understanding and will, or if his reasoning power was so far overthrown by his mental condition that he was incapable of exercising his judgment in regard to the consequences, then the defendants are liable.] * * *
    “ There is one point: If the jury find that Frank B. Isett came to his death ‘by his own hand,’ sane or insane, there can be no recovery. We answer that point in the negative. We have virtually negatived it in our general charge, and we do so now.”
    The verdict was for plaintiff for $5300.
    The defendants took a writ of error, and assigned for error the refusal of their fourth point, the part of the charge in brackets, an'd not affirming their third point.

      H. M. Baldridge (with whom was James F. Milliken), for plaintiffs in error. —
    The influences which guided or controlled the will of the party in committing the act, cannot affect the risk which the insurers intended should be excepted from the terms of the policy: Hartman v. Keystone Insurance Company, 9 Harris 466; Cooper v. Massachusetts Life Insurance Company, 1 Bigelow’s Life and Accident Ins. Rep. 758. If the insured understood the physical consequences of his act, it rendered the policy void. Did the court intend in the charge, that if Isett did not comprehend the moral and physical nature and consequences of his act, the defendants were liable ? If it was intended to include the moral nature and consequences of his act, the court clearly erred. If it was meant the physical nature and consequences of his act, the language employed does not so restrict it, and the jury would very naturally and easily suppose it was intended to include both: Borradaile v. Hunter, 2 Bigelow’s Life and Accident Ins. Rep. 280. Suicide during insanity, committed intentionally and knowingly, will vitiate a life-policy conditioned to be void if the assured shall die by his own hand: Nimick v. Mutual Ben. Life Ins. Co., 1 Bigelow’s Life and Accident Ins. Rep. 689; s. c. 3 Brewster 502; Dean v. American Life Ins. Co., 1 Bigelow 195. If the insured intended taking his life, it is immaterial whether he understood its moral aspects or was capable of distinguishing between right and wrong: Gray v. Union Mut. Life Ins. Co., 2 Bigelow 15; Cliff v. Schwabe, Id. 312.

      8. 8. Blair, for defendant in error,
    cited Beartin v. Farmers’ Loan and Trust Co., 4 Hill 731; Easterboro’ v. Union Life Ins. Co., 54 Maine —.
   The opinion of the court was delivered, July 2d 1873, by

Mercur, J. —

The distinction now so strongly pressed by the counsel for the plaintiff, does not appear to have been made in the court below. The attention of the court was not called to the moral nature and consequences of the act of the insured, in either of the four written points upon which it was requested to charge the jury. Neither in answer to the points, nor in the general charge, was there any allusion to his comprehension of the moral aspect of the case. The court was considering the distinction of the physical life only of the insured. It was his physical life only that was covered by the policy of insurance. That was the only life, in the meaning of the contract that had been destroyed. The question which arose and which was considered by the court and jury, was whether he had sufficient mental capacity to comprehend intelligently that the act which he was about to commit would for ever destroy that life. Bearing in mind then that this was the subject-matter covered by the insurance, and that it was for the loss of this alone the action was brought, we will consider that portion of the charge specially assigned for error. It is this, “If at the time the pistol was fired, Isett was conscious of the act he was committing, and intended to take his life, and had sufficient mental capacity to comprehend and understand the nature and consequences of his act; then the defendants are not liable. If, on the other hand, he was not thus conscious, but acted under an insane impulse or delusion sufficient to impair his understanding or will, or if his reasoning power was so far overthrown by his mental condition, that he was incapable of exercising his judgment in regard to the consequences, then the defendants are liable.” We understand the fair import of this instruction to be this, to wit: if the insured possessed sufficient mental capacity to form an intelligent intent to take his own life, and was conscious that the act he was about to commit would effect that object, it avoided the policy. If, however, his mind was so far impaired that he was incapable of forming such an intent, and was unconscious of the effect of his action, upon his life, a recovery could be had. So understanding it, we cannot say there is any error therein. Upon a careful examination of the whole charge we discover nothing to change the general effect of the portion quoted. As no particular instructions were asked for, in regard to the moral nature and consequences of the act, the court is responsible for the general effect only of the charge. We will not draw upon our imagination to uncover anything beneath the reasonable and probable import of the charge. If taken as a whole, it was not calculated to mislead the jury, it is not error. Nor is the mere omission to charge upon a point to which the attention of the court was not called, cause for reversal: Raush v. Miller, 12 Harris 277; Weamer v. Juart, 5 Casey 257; Reeves v. Del., Lack. & West. R. R. Co., 6 Id. 454; Newman et al. v. Edwards, 10 Id. 32.

This view of the case makes it unnecessary to consider the conflicting authorities as to whether a policy is made void, if the insured comprehended the physical nature and consequences only of the act, and intended to destroy his life, although he did not comprehend its moral nature; or whether he must also have comprehended its moral character. As this distinction does not fairly arise in this case, and its consideration might involve us in an unprofitable discussion of the influences of different systems of theology, we refrain from expressing any opinion on it.

The case of Hartman v. Keystone Ins. Co., 9 Harris 466, is not in conflict with the charge of the court. It merely holds that if the insured committed suicide by swallowing poison, he died by his own hand. It does not profess to hold that self-destruction by the insured, in all cases, avoids the policy.

The charge of the court substantially covers all the points submitted by the plaintiff. We do not think the learned judge erred therein. Therefore the judgment is affirmed.


text:
    Hersh, who survived Hough, versus The Northern Central Railway Co.
    1. By an Act of Assembly it was provided that “rates for toll and transportation may be regulated in such manner as the company may deem most advisable; provided that the maximum charges for toll and transportation shall not exceed four cents per ton per mile for freight.” A subsequent act amended the proviso so as to read “ average charges for toll and transportation.” Held, that the company might impose more than four cents per mile on some charges, so that by making others less the general average should not exceed four cents.
    2. The adjustment of tolls was not required to be made so as to bear equally on each individual, but was to be made between the whole road and the entire public who used it.
    3. The requirement of the statute is filled by fixing different charges per mile for different kinds of freight.

      4. The company may discriminate in favor of longer distances.
    5. “ Average charges” are charges at a mean rate, ascertained by dividing the entire receipts by the whole quantity of tonnage, reduced to a common standard of tons moved one mile.
    6. The charges against the plaintiff, aveyaged by the whole amount of business of the company, was less the 4 per cent; by that done for him alone they were more than 5 per cent. Held, that the former was the proper estimate and that the charges were not excessive.
    May 27th 1874.
    Before Read, 0. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1873, No. 63.
    This was an action of assumpsit, brought August 15th 1866, by Edward Hersh, who survived John Hough, trading as Hough & Hersh, against the Northern Central Railway Company.
    The suit was originally brought in the Court of Common Pleas of York county; and under the 1st section of the Act of April 14th 1834, Pamph. L. 395, 2 Brightly’s Purd. 1227, pi. 72, it was removed on the 23d of January 1869, to the Court of Common Pleas of Lancaster county.
    The suit was brought to recover back tolls, &c., paid by the partners to the defendants alleged to be in excess of the rates allowed by law.
    In Lancaster county it was referred, under the 3d section of the Act of June 16th 1836, Pamph. L. 717, 1 Brightly’s Purd. 78, pi. 4, to George M. Kline, Amos Slaymaker and William Leaman, Esqs., reserving matters of law arising for the decision of the court; the report of the referees to have the same effect as a special verdict.
    The referees found the following facts amongst others:—

      “ The partners had been engaged in the business of mining coal, in Northumberland county, from 1860 to November 1865, as lessees of the Susquehanna Coal and Coal Mountain Company.
    The Northern Central Railway Company, the defendant, is lessee of the Shamokin Yalley and Pottsville Railroad, under a lease executed by the Shamokin Yalley and Pottsville Railroad Company on the 27th day of February 1863.
    The road so leased extends from Mt. Carmel to Sunbury, a distance of twenty-eight miles, and was originally built from Sun-bury to the town of Shamokin by the Danville and Pottsville Railroad Company, incorporated April 8th 1826. Under the supplements to the charter of the Danville and Pottsville Railroad Company, a branch road was subsequently built, about the year 1855, to Mt. Carmel, a distance of about eight miles.
    In the year-, the Locust Gap Improvement Company constructed a lateral railroad upon the lands lying east of the Shamokin Valley and Pottsville Railroad from their colliery to the line of the said railroad, connecting therewith at a point called Locust Gap Intersection. “ The said lateral railroad extended about fifty feet over the lands of the said Locust Gap Improvement Company,” and the residue of its length over the lands of the Susquehanna Coal and Coal Mountain Company, across which a right of way had been granted.
    At the time of the construction of the said lateral railroad there was no connection therewith eastwardly, but in that year the Mine Hill and Schuylkill Haven Railroad, was extended so as to form a junction with the said lateral railroad at its eastern terminus near the collieries of the said Locust Gap Improvement Company, making a continuous line of railroad communication from Locust Gap Intersection to Philadelphia.
    The colliery of the plaintiffs was situated on the line of the Shamokin Yalley and Pottsville Railroad west of Mt. Carmel, and distant from Locust Gap Intersection about If miles, or 9231 jfeet. It was opened about 1854, and the breaker thereof erected in 1854 or 1855.
    From February 27th 1863, to -, the plaintiffs shipped over the road, so leased to the defendant, coal from the said colliery as follows, to wit:
    To Locust Gay Intersection, If miles (or 9231ft.) 61,540,03 tons. “ Shamokin Furnace, 7 “ 2,860,19 “
    “ Sunbury, 26 “ . . 10,588,09 “
    H:' Hí Hi Hi Hi Hi
    The shipments of coal to Locust Gap Intersection and Sunbury were in transit to markets beyond those points, being carried on the cars of the Philadelphia and Reading Railroad Company and the Schuylkill Navigation Company for the eastern market by way of Locust Gap Intersection, and in cars owned by the Northern Central Railway Company, or cars furnished by it, for the western market by way of Sunbury.
    The Northern Central Railway Company never supplied any cars for transporting coal from the collieries about Shamokin and Mt. Carmel to the eastern markets.
    The Philadelphia and Reading Railroad Company delivered the cars for that traffic at Locust Gap Intersection on sidings prepared for the purpose. Thence they were taken by the Northern Central Railway Company, distributed to the various collieries in allotments designated by the Philadelphia and Reading Railroad Company, and, after loading, returned to the Philadelphia and Reading Railroad Company at Locust Gap Intersection. * * *
    For the shipments of coal above specified, the plaintiffs paid to the defendants, as follows, viz.:—
    For 61,540,00 tons gr. to Locust Gap Intersection, $15,746.84
    “ 2,860,19 “ “ Shamokin Furnace, . 809.15
    “ 10,588,09 “ “ Sunbury, . . 8,015.88

      The defendant carried merchandise, &c., from Sanbury to Mt. Carmel for the plaintiffs, and received therefor, as follows:—
    1863— 184,572 lbs., . . Amount paid $170.01
    1864— 160,902 “ “ “ 198.33
    1865— 27,274 “ . “ “ 37.05
    372,748 (or 186J tons.) Amount paid $405.39
    The rates for charges for toll and transportation between different points on the Shamokin Valley and Pottsville Railroads were fixed by the general superintendent of the Northern Central Railway, residing at Harrisburg.
    The rates so fixed were published on “toll-sheets,” which were posted in the offices of the company at the various stations. The operators were notified of these rates by letter or printed circular.
    The rates were charged for shipments made after the date of their going into effect, and till altered by the general superintendent. ‘
    In accordance with the toll-sheets, the bills for coal transported were made out by the agents at the various stations, from returns of tonnage received from the weigh-masters, and presented for payment to the operators.
    The bills were for coal shipped prior to their presentation, and after the service of the company had been rendered.
    Bills were made out and presented monthly, or semi-monthly, to the plaintiffs, by W. P. Withington, agent at Shamokin station, in the years 1863, 1864 and 1865.
    He sent the bills to the plaintiffs at Mt. Carmel, who returned them to the agent with their check. The bills were then again forwarded to the plaintiffs receipted.
    The following rates per ton for freights, from the plaintiffs’ colliery to Locust Gap Intersection, appear on the “toll-sheets ” of the following dates, viz.:—
    April 13th 1863, . . 23 cts. per ton.
    Sept. 1st 1863,
    Feb. 1st 1864, 23
    May 16th 1864, 28
    Sept. 1st 1864, 32
    June 1st 1865, 28
    Oct. 1st 1865,
    It is usual for railroad companies to charge higher rates for transporting freights short than long distances, for the reason, that the number of men employed, the time consumed, and the incidental expenses incurred, are proportionally greater.
    The rates and charges for tolls and transportation on the Shamokin Valley and Pottsville Railroad were established under the provisions of Acts of Assembly.

      The third section of an act supplementary to an act entitled “ An Act incorporating the ‘ Danville and Pottsville Railroad Company,’ ” approved April 11th 1848, provides:—
    “ That the rates for toll and transportation may be fixed and regulated in such manner as the company may deem most advisable: Provided, however, That the maximum charges for toll and transportation on the said road shall not exceed four cents per ton per mile for freight.” (Pamph. L. 1848, 541.)
    The second section of an act supplementary to an act, entitled “ An Act -to incorporate the Danville and Pottsville Railroad Company,” approved April 2d 1850, provides :—
    “ That the proviso to the third section of the said act be and the same is hereby amended so as to read, ‘ Average charges for toll and transportation,’ instead of the ‘maximum charges.’ ” (Pamph. L. 1850, 298.)
    Average charges for toll and transportation, when the rates per ton per mile are not uniform for all distances which freights may be carried, are understood by those engaged in the operation and superintendence of railroads in the state of Pennsylvania, and familiar with making out “toll-sheets” and rates of charges, to signify charges made at a mean .rate, obtained by dividing the entire receipts for toll and transportation by the whole quantity of tonnage carried, reduced to a common standard of tons moved one mile.
    An example will make clear the meaning and method of reaching an “ average rate.”
    Given a road thirty miles in length, and let the ratos per ton per mile vary for different distances, to wit: for ten miles, ten cents per ton per mile; for twenty miles, four cents per ton per mile; for thirty miles, two cents per ton per mile. At the said rates, let ten tons be carried ten miles, producing ten dollars; and ten tons twenty miles, producing eight dollars; and ten tons thirty'miles, producing six dollars; making the entire receipts for toll and transportation twenty-four dollars. The carriage of ten tons ten miles equals that of one hundred tons one mile ; the carriage of ten tons twenty miles equals that of two hundred, tons one mile ; the carriage of ten tons thirty miles equals that of three hundred tons one mile. The whole tonnage carried, thus reduced to the common standard of tons moved one mile, by multiplying the number of tons by the number of miles the tons are transported, is equal to the carriage of six hundred tons one mile. Dividing the twenty-four dollars by the six hundred tons, we attain the average rate per ton per mile, viz.: four cents per ton per mile.
    The “ average charges for toll and transportation” on the Shamokin Valley and Pottsville Railroad, leased to the defendant, obtained by dividing the entire receipts for freights thereon, from February 1st 1863 to December 31st 1865, by the whole tonnage carried during that period, reduced to the standard of tons moved one mile, were 3.734 cents per ton per mile.
    The operators paid the company for the use of its road, four cents per ton per mile for the coal carried for them, and three cents per ton for weighing the same. Owners of cars were paid for the use of their cars, and owners of teams were separately paid a specified sum per ton per mile for hauling. On the Philadelphia and Columbia Railroad, constructed by the state of Pennsylvania and operated by it from the year 1834 to the year 1857, the state furnished the road-way and the motive-power, but had nothing to do with the transportation. Transportation was the term applied to the business of those individuals who supplied the cars and train-hands. These individuals were called “transporters,” who transported all freights received by them. The receipts for the use of the roadway were known as “tolls,” and were kept distinct from the receipts for “motive-power.”
    The present acceptation of the word transportation includes all that was done by both the state and transporters, in all cases where the entire services are rendered by the railroad company. * * *
    The aggregate sum paid by the plaintiffs to the defendant for toll and transportation on shipments of coal from the plaintiffs’ colliery to Locust Grap Intersection, in excess of charges at the rate of four cents per ton per mile, amounted, on November 15th 1865, to eleven thousand four hundred and thirty-four dollars and eighty-seven cents.
    The plaintiffs paid to the defendant, for toll and transportation, in excess of charges made, at the maximum rate of four cents per mile on merchandise, carried by the defendant for the plaintiffs, from Sunbury to Mt. Carmel, as follows, viz.:—
    In the year 1863, ..... $74.03
    “ “ 1864,..... 114.66
    “ “ 1865,..... 22.87
    The average charges for toll and transportation made by the defendant, for coal and merchandise shipped by the plaintiffs over the road of the defendant, from February 1st 1863 to December 31st 1865, obtained by dividing the entire receipts for freight from the plaintiffs by the whole tonnage carried for the plaintiffs, reduced to the common standard of tons moved one mile, were 5 837-1000th cents per ton per mile; giving December 31st 1865 on all the freights ■ transported for the plaintiffs, a total sum, in excess of charges, calculated at the rate of four cents' per ton per mile, of $7492.21,”
    On the 2d of January 1873, the report of the referees was filed, and on the same day the plaintiffs moved the court to enter judgment in their favor on the report for $16,627.48, being the amount of the excess in charges as found by the referees on the basis last mentioned in their report, and interest from January-1866, seven years.”
    The defendants on the same day moved to enter judgment in their favor.
    On the 17th of March 1873, the court delivered their opinion, in which, after considering whether transportation included furnishing cars, &c., they said:—
    “ We do not, however, clearly perceive the materiality of these distinctions, if it appear that they charged the plaintiffs for toll and transportation not more than four cents per ton per mile, which it is alleged by them was the fact. In contradiction to this, the plaintiffs exhibit the toll-sheets, showing that from their colliery to the Locust Gap Intersection, which is but If miles, the charges ranged from twenty-three to twenty-eight and thirty-two cents per ton, as if this was a violation of the act limiting the charge to four cents per mile; and so it would have been, had not the law' been changed. The Act of the 11th of April 1848, entitled ‘ An Act incorporating the Pottsville and Danville Railroad Company,’ provided that the maximum charges for toll and transportation, on the said road, shall not exceed four cents per ton per mile for freight. Two years afterward this proviso was modified by the second section of the supplement to the said act, by declaring that the proviso should be amended so as to read, ‘ average charges for toll and transportation,’ instead of ‘the maximum charges.’ If this change has any meaning, it warrants more than the maximum charge of four cents per mile per ton, on parts of the road, if on the whole route of their road the toll and transportation charged to the customer do not average more than four cents pér ton per mile. The question was much discussed, what is an average charge for toll and transportation on this railroad ? We think it right and proper to take the explanation of- the term, ‘ average ’ as reported by the referees and deduced by them from the testimony of witnesses in regard to the common and current acceptation of the phrase among railroad men, and as consonant with reason also ; and we consider that applying it as thus explained, the defendant’s position is sustained, that their average charges in this case were not more than four cents per mile per ton, for toll and transportation for the plaintiffs’ coal and merchandise. ”* * *
    Judgment was entered on the report of the referees for the defendants.
    The Acts of Assembly involved in the case are stated in the opinion of Judge Mercur.
    The plaintiffs removed the record to the Supreme Court. They assigned four errors; the second was:—
    In deciding that the average charges in this case were not more than four cents per mile per ton, for toll and transportation for the plaintiffs’ coal and merchandise.

      J. L. Mayer and Blade (with whom were JP. I). Baker and T. JE. Franklin), for plaintiffs in error.

      J. B. Packer and W. MacYeagh (with whom were P. L. Wiekes, S. H. B,eynolds and 0. J. Dickey), for defendants in error.
   The opinion of the court was delivered, July 2d 1873, by

Mercur, J. —

The most important question in this case arises under the second assignment of error. It alleges the court erred in deciding that the average charges in this case were not more than four cents per mile per ton for toll and transportation for the plaintiffs’ coal and merchandise.”

Strictly speaking, this raises a question of fact onty. Inasmuch, however, as the facts were found by the referees, under an agreement of the parties that they should “ have the same effect • as a special verdict,” we will consider whether the court decided the law correctly upon the facts found by the referees. As much of the argument has been directed towards the consideration of the meaning of “ average charges,” a reference to the legislation bearing upon it becomes necessary. The Danville and Pottsville Railroad Company was incorporated by Act of April 8th 1826. Under this act the road was constructed from Sunbury eastwardly to Shamokin, a distance of about twenty.miles. By the Act of April 8th 1834, the credit of the state was pledged for the payment of the interest upon the loan certificates of said company, to the amount of $300,000, which were duly issued. The company became insolvent. The several Acts of 21st April 1846, March 16th 1847 and April 11th 1848, were passed, making provision for the sale of the road and the franchises of the company upon terms therein specified. No sale having been made, the further supplement of April 2d 1850 was passed. It recited that the “ state had already paid the sum of $225,000, and that there was no reasonable prospect that the company would ever complete the said railroad and relieve the state from the annual drain of $15,000 from her treasury.”

Under these laws a sale was finally effected in 1850. By Act of April 12th 1851, the sale was confirmed, and the name of the corporation changed to the Philadelphia and Sunbury Railroad Company. This company repaired the part of the road already built, and in 1855 constructed a branch road from Shamokin eastwardly to Mt. Carmel, a distance of about eight miles. In November 1857 the road and franchises w&re sold at sheriff’s sale upon a mortgage executed by said company under an act of the legislature. The sale was confirmed by Act of 25th March 1858, and the purchasers duly incorporated under the name of the Shamokin Valley and Pottsville Railroad Company. This last-named company operated the road until 27th February 1863, at which time they leased it to the defendants for a term of years.

The Act of April 8th 1826 fixed the charges for tolls and transportation at prices varying from one and a half to four cents per ton per mile. The third section of the aforesaid Act of April 11th 1848 (Pamph. L. 1848, p. 541) provided “ that the rates for toll and transportation may be fixed and regulated in such manner as the company may deem most advisable: Provided, however, that the maximum charges for toll and transportation on the said road shall not exceed four cents per ton per mile for freight.” The second section of the supplement, approved April 2d 1850 (Pamph. L. 1850, p. 298) declares that the “proviso to the third section of said act be and the same is hereby amended so as to read ‘ average charges for toll and transportation,’ instead of the maximum charges.’ ”

It is thus shown that at the time of the passage of the several acts relating to the sale of the road, prior to the Act of April 2d 1850, the maximum charges which the company was authorized to make was four cents per mile per ton. No greater charge than four cents per ton for any mile could be imposed. Beyond that sum the company could not go. The law made that the barrier which could not be passed. Under that limitation and restriction no purchaser was procured. What, then, was the object of the Act of 2d April 1850 ? Was it to give more or less favorable terms to the company and to the purchaser ? The desire to facilitate a sale having been unmistakably expressed by the legislature, the reasonable presumption is that it was to offer more inviting terms to a purchaser. It is contended, on the part of the plaintiff, that this law only gave power to make average charges below the four cents per mile. We answer, the company had that power before its passage; so we will not give to the statute such a construction as will wholly prevent its taking effect. The maximum charge was the only limitation imposed by the previous law. Below that sum the company could have made such average charges as it “ deemed most advisable.” The undoubted intention of the act, therefore, was to authorize the company, by a wise and judicious discrimination, to impose some charges higher than four cents per mile; but, by putting others less, to so adjust the "whole that the general average should not exceed that sum.

The referees have found that the average charges for toll and transportation upon this road, during the time in question, was only 3.734-1000th per mile per ton. Objection is made to this conclusion for two reasons; first, because the referees considered the whole tonnage carried and not the plaintiffs’ alone; and secondly, because of the much higher rates charged for short distances than over the whole road. We do not think either of these objections is sound. There is nothing in the act requiring that this adjustment should be so made as to bear equally upon each individual without regard to kind of freight or distance.

The adjustment is to be made between the whole road and the entire public who use it. Full effect is therefore given to the spirit and intent of the statute, as wrell as to its letter, by fixing different charges per mile for different kinds of freight. Such is the custom of all railroads. Nor is there anything unjust in discriminating in favor of longer distances. The referees have found it usual for railroad companies to charge higher rates for transporting freight short than long distances, for the reason that the number of men employed, the time consumed and the incidental expenses incurred are proportionately greater. Strong reasons exist in this case for the application of that rule. The freight of the plaintiffs was passed over one and three-fourths miles only of the defendants’ road, while the motive-power of the company had to be moved up a heavy grade to reach that portion of the road. The plaintiffs cannot be permitted to separate their freight entirely from that of others in determining the gross average charges received by the defendants. We therefore agree with the finding that when the rates per ton per mile are not uniform for all distances for which freights may be carried, “ average charges for toll and transportation” are understood to mean, and do mean, charges made at a mean rate, obtained by dividing the entire receipts for toll and transportation by the whole quantity of tonnage carried, reduced to a common standard of tons moved one mile. It is true, this must be applied to some given time, but the finding shows that whether each year be considered separately or the whole time together, during which the tonnage of the plaintiffs was passing over the road, the average charges of the defendants did not exceed fo.ur cents per ton per mile for the whole tonnage.

This view of the case shows the judgment was correctly entered in favor of the defendants. It is therefore unnecessary to discuss the other assignments of error, as none of them can. change the result. Judgment affirmed.


text:
    Smith’s Appeal. Herr’s Estate.
    1. Herr by one transaction sold to Smith four bonds of Gerth, on which judgment had been entered, and by endorsement on each, guarantied its payment; Herr made an assignment for the benefit of creditors; afterwards Smith received from the proceeds of sale- of Gerth’s property under an execution by him, the amount of one of the bonds. Held, that Smith was not entitled to receive from Herr’s estate a dividend on that bond.
    2. The guaranty was subsidiary to the bond and was not the principal obligation for which the bond was transferred.
    3. The judgment entered on the first bond having been paid from the sale of Gerth’s property, the debt was extinguished.
    4. Heim’s Appeal, 3 Casey 42; Miller’s Appeal, 11 Casey 481; Patten’s Appeal, 9 Wright 151, approved.
    May 28tb 1873.
    .Before Read, C. J., Agknew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1873, No 84.
    In the distribution of the estate of C. B. Herr, assigned for the benefit of his creditors.
    C. B. Herr was the owner of four bonds, executed to him by Frederick Gerth; judgment had been entered on these bonds against Gerth in the Court of Common Pleas of York county: one entered to January Term 1865, and revived to April Term 1870, for $1566; one for $1000; one for $482.59 ; one for $154.90; the lien of the last three was subsequent to the judgment first mentioned ; there were also lien creditors of Gerth subsequent to his first judgment and before the others.
    On the 1st of June 1870, Herr applied to A. Herr Smith, Esq., to purchase these bonds; Mr. Smith purchased them and at the time of purchase the following endorsement (mutatis mutandis) was made on each of them.
    “ For value received, I, C. B. Herr, obligee within named, hereby assign, transfer and set over the within bond, amounting this day to $1566, unto A. Herr Smith, his heirs and assigns, and I further, for value received, guaranty the payment of the said sum, with interest from date, on the 1st of April 1871. Witness my hand and seal this 1st day of June 1870.
    C. C. Herr, Millersville. [seal.]
    On the 16th of January 1871, Herr made an assignment for the benefit of his creditors. Smith issued executions on his judgments under which Gerth’s property was sold, on the 15th of April 1871, and enough realized from the sale to pay Smith’s first judgment in full; but not to pay anything on his subsequent judgments; Mr. Smith received the amount of his first judgment, from J. W. Bittenger, Esq., his attorney.
    The estate of Herr was referred to H. B. Swarr, Esq., to report distribution.
    He made a report awarding $750.25 on the first judgment, Mr. Smith.claiming before him that all the bonds had been assigned to him as a collateral for a loan made to Herr at the time of their assignment, and that Herr’s general creditors could not participate in money derived from the sale of G-erth’s property.
    The report was recommitted to the same auditor, who amongst other things reported:
    “ Upon a careful consideration of this claim, on the facts presented, the auditor is of the opinion that the endorsements of C. B. Herr on the bonds assigned are not such independent promises to pay the amount due thereon, as to enable Mr. Smith to appropriate the amounts received from Mr. Bittenger, generally, “ to the liability of C. B. Herr by virtue of his agreements endorsed on said judgments,” as contended for by his counsel. The liability of O. B. Herr on any one of the obligations transferred terminated when the same was paid by the principal, or by the legal appropriation of the money arising out of the judicial sale of his property. This was done in the distribution of the money arising out of said sale, and the amount remaining after paying prior liens, being sufficient to pay and discharge the first of the judgments held by Mr. Smith, and on which the dividend was awarded, and when paid the guaranty so far as it was concerned, ended, and no appropriation of the amount received by Mr. Smith could restore the liability of C. B. Herr on that particular obligation, and therefore it is not entitled to the dividend awarded.” * * *
    The auditor therefore disallowed the dividend theretofore awarded to Mr. Smith’s bond; and after exceptions by Mr. Smith his report was confirmed.
    Mr. Smith appealed to the Supreme Court and assigned the decree of confirmation for error.

      D. Gr. JEshelman (with whom was Gf. M. Kline), for appellant.
    —The words of the endorsement were a contract of suretyship: Sherman v. Roberts, 1 Grant 261; Campbell v. Baker, 10 Wright 243.
    A creditor under an assignment is entitled to a dividend as an equitable owner of the assigned estate; the extent of his interest is fixed by the amount of his claim when the assignment was made: Miller’s Appeal, 11 Casey 481; Patten’s Appeal, 9 Wright 151. The payment from G-erth’s estate was not an appropriation in relief of Herr’s liability ; under the circumstances it was to be appropriated to the debtleast secure: Foster v. McGraw, 14 P. F. Smith 464; Pierce v. Sweet, 9 Casey 157; Johnson’s Appeal, 1 Wright 268.

      B. H. Yundt (with whom were Q-. Bauman, W. W. Brown, B. BUmaker and T. B. Branhlin), for Herr’s creditors, appellees.
   The opinion of the court was delivered, July 2d 1873, by

Williams, J. —

If the transaction out of which the question in this case arises had been a loan, and the bonds had been transferred as collateral security for its payment, the appellant under the rule settled in Keim’s Appeal, 3 Casey 42, and reaffirmed in subsequent cases (Miller’s Appeal, 11 Id. 481, and Patten’s Appeal, 9 Wright 151), would have been entitled to a dividend out of the assigned estate on the whole amount of his claim. But the transaction was not a loan ; it was a purchase of the bonds by the appellant, who become the equitable owner. The seller, out of whose assigned estate the dividend is claimed, by a separate contract endorsed on each bond, guaranteed its payment. The contract of guaranty was subsidiary to the bond ; it did not constitute the principal obligation for the performance of which the bond was transferred as collateral security, but the contract of guaranty was collateral to the obligation created by the bond. When, therefore, the judgment which was first entered on one of the bonds, was satisfied out of the proceeds of the sheriff’s sale of the obligor’s property on which it was a lien, it extinguished the debt and put an end to the, liability on the contract' of guaranty ; and if so, what right has the appellant to a dividend thereon out of the assigned estate ? If he had purchased but the one bond upon which judgment was first entered and which was satisfied out- of the proceeds of the sheriff’s sale, it would hardly be pretended that he would be entitled to a dividend. But why should his purchase of three other bonds entitle him to a dividend on all of them, when one has been paid ? They were of different dates, and for different amounts, having no connection with each other, and their payment was guaranteed by separate and independent contracts. If either had been paid by the obligor it would have extinguished the debt and the collateral contract guaranteeing its payment. There can be no doubt that the satisfaction of the judgment out of the proceeds of the sheriff’s sale extinguished the obligor’s liability for the whole debt for which it was obtained ; and it follows as a necessary corollary that the assignor’s liability on the contract of guaranty was also extinguished. If then the bond and guaranty were both extinguished, there ivas no debt or liability upon which the appellant was entitled to a dividend. The court below was therefore clearly right in deciding that he was entitled to a dividend only upon the bonds which had not been paid.

Decree affirmed at the costs of the appellant.