author: KENNEDY, I.

text:
    LE RAY DE CHAUMONT against FORSYTHE.
    A covenanted to sell and convey a tract of land to-B, ‘.‘by a good warranty deed in fee simple,” in consideration of $3270. At'the time the agreement was entered into, A had but a life estate in the land; subsequently he conveyed by deed, with, general warranty, all his interest in the same land to his son, in consideration of" $2451. His son and other children in whom was vested the fee, then conveyed to B. Held: that upon the tender of such title to B the vendee, A was entitled to recover.
    An assignee or grantee of land, may maintain an action of covenant against any of' the prior grantors or assignors, who have entered into a general warranty of the title; and this whether he has a general warranty or not to himself.
    A covenant to convey «‘by a good warranty deed ip fee simple,” implies an obligation on the part of the vendor, to procure a patent for the land. But such implication is so qualified by the clause, “the said vendor is to be at no expense for obtaining the patents, or any other title, voucher or document which the said ven-dee will think proper to get for his own personal satisfaction or security” as to relieve the vendor from such obligation.
    Appeals by the plaintiff in two cases, from the Circuit Court of' Mifflin county, where, under the charge of the Courtto the jury, (who were qualified to try both causes,) that he was not entitled to Recover'from the evidence given, he suffered non-suits. He then moved the Circuit Court to set the non-suit in each cause aside, and grant á new trial; which motion was over-ruled. From this decision the plaintiff appealed, alleging that the charge of the Court to. the jury was against law.
    Both of these suits had been instituted by the plaintiff, James Le Ray De Chaumont against Robert Forsythe, the intestate, in his life time, and he had confessed a judgment to the plaintiff in each case. Sometime afterwards upon affidavit filed, and application by Robert Forsythe, the then defendant to the court, these judgments were opened, and the defendant let in to a defence:; since which time he died, and Matthew Forsythe, his administra-, tor, has been substituted.
    In the first case the plaintiff claimed the amount of four notes, which he had taken of the deceased, for payment of a part of the purchase money of three hundred and nine acres of land, lying in Bedford county, which the plaintiff, by articles of agreement, bearing date the 17th of June, 1818, sold to the deceased.
    The second suit was for a small balance due on notes given by the deceased to the plaintiff, for the purchase-money of land lying on Jack’s Creek, in Mifflin county, which had been sold by the. plaintiff to the deceased in 1810, as appeared by articles of agreement given in evidence on the trial.
    The plaintiff gave in evidence the notes of the intestate, shewing the amount of his claims. The defendant then gave in evidence,? the articles of the 17th of June, 1818, between James Le Lay De Chaumont, and Robert Forsythe, which are as follows: “Agreement 17th June, 1818, James Le Lay De Chaumont, with Robert Forsythe, whereas the Hon. Proprietaries of Pennsylvania did on the 25th of Oct’r. 1765, grant unto John Cadwallader a warrant for 360 acres of land or Yellow creek, in Morison’s Cave, since surveyed and returned into the surveyor General’s office; for 429| acres, and the said J. Cadwallader by deed-poll, dated 29th October, conveyed the said warrant to Charles Cox, his heirs and assigns, which said Charles Cox conveyed it the 15th July, 1789, by a warranty deed, to his daughter Grace Cox De Chau-mont which Grace conveyed it to the said J. Le Ray De Chau < mont, her husband, the 29th May, 1790. Now therefore the said James, for himself, his heirs, &c. covenants and agrees with the said Robert, his executors and administrators, to sell and convey to him by a good warranty deed in fee-simple, the said tract of 429¡| acres, above mentioned, excepting what has been sold of it by the said C. Cox, to one T. Snowberger, estimated to be about 120 acres, and leaving about 309 acres and the usual allowance, more or less, it being understood between the parties that the said James gives, and the said Robert receives, the said tract of land for what remains in it after the above exception, without having any call upion one or the other hereafter for the deficiency or the extra quantity of acres. The deed to be delivered to the said Robert after the payments hereafter mentioned, to be paid on the part of the said Robert. And the said Robert for &e. covenants and contracts with the said James, &c. to pay him for said tract @3270 70, cents in manner following: — On 1st Dec’r. 1818, @400; 1st March 1.819, @400; 1st June 1819, @400; IstSeptember 1819, @400; 1st December, 1S19, @400; 1st March 1820, @400; 1st June 1820, @400; 1st September 1820, @470 70; making in all @3270 70; • in his several bills payable at the United States’ Bank at Philadelphia, excepting @70 70 of the above sum, which is to be paid to the present occupant of the land herein contracted for: the whole of the payments to be made exactly.
    “It is further understood between the parties, that the said James will deliver to the said Robert the original deed given by the said Charles Cox to the said Grace Cox De Chaumont to be registered in the counties of Mifflin and Bedford, state of Pennsylvania, and that the said James is to be at no expense for the said registering or obtaining the joatents or other title, voucher or document which the said Robert will think proper to get for his own personal satisfaction or security. The said James giving him at the same time full powers to claim the said title,, voucher or document from every person or persons public or prU vate.”

      The defendant next gave in evidence the deed of conveyance above recited from Charles Cox and his wife to Grace Cox, upon which was indorsed the deed of conveyance dated May 29 th, 1790, from Grace Cox, who at this time had become the wife of James Le Ray De Chaumont, to her husband. [This indorsement, which was iri the form of a deed from her, was not acknowledged but merely proved by her brother who testified to her handwritings Defendant further read in evidence a certificate from the land office shewing that the 309 acres sold to if. Forsythe by plaintiff were ■not patented, and that of purchase money and interest thereon, there was due to the state on the 22d of June, 1824, seven hundred and forty-one dollars and ninety-five cents. The plaintiff, as appeared, derived his title to the Jade’s Creels land from Charles Cox in the same way and by the same conveyances as he did to the 309 acres. - The plaintiff here proved that Grace Cox his wife died in 1812, leaving two sons Vincent wA Alexander and Theresa a daughter who had intermarried with Mons. Gouvello. That on the 1st of October, 1823, by deed of that date James Le RayDe Chaumont in consideration of $2451 therein specified, conveyed in fee simple with general warranty the three hundred and nine acres, ■ to his son Vincent Chaumont with the following clause therein inserted, to wit, “which said 309 acres, by writing, bearing date the 17th day of June, 1818, were contracted tobe sold by the party of the first part to Robert Forsythe for the price and conditions in said writing or contract of sale mentioned, which is herewith assigned and transferred by the party_of the first to the party of the second part, and to which contract of sale this present deed of convey anee is to be subject.

    The plaintiff then gave in evidence a deed of release dated March 8th, 1827, by Vincent Le Ray De Chaumont for himself, and as attorney for Mons. Gouvello and Theresa his wife, his brother-in-law and sister, and his brother Alexander, in the words following; “In consideration of one dollar, have and every of them hath, re-mised released and for ever quit claimed, and by these presents do for themselves and their heirs remise release and for ever quit claim unto Matthew Forsythe, of, &e. and to his heirs, &c. in trust and for the use,'benefit, and behoof of the right heirs of Robert Forsythe, deceased, their heirs, &c. all the estate right title interest, property claim and demand whatsoever of them, the said, &c.of, in, to, or out of all that tract, &c; surveyed in pursuance, &c. returned, &c. conveyed, &c. Also all that certain tract in, &c. surveyed, &c. and which two last tracts by virtue of sundry conveyances became vested in Charles Cox in fee, who by his deed aforesaid dated the 15th July, 1789, conveyed the same to his daughter the aforesaid Grace Cox, mother of the foregoing releas-ors in fee, together with all and singular the hereditaments and appurtenances to the said, &c; to have and to hold, the said tracts of land, hereditaments and premises, &c. so that neither the said Vincent, Alexander, &c. nor their heirs nor any other person or persons for them or any of them, or in their or any of their rights or names shall or may by any means whatsoever at any time hereafter, claim, challenge or demand any estate, of, in, and to, said tracts, &c. But of and from all actions, &c. estate, right, &c. shall be for ever barred. And the said Vincent, &c; the said several tracts of land, hereditaments and premises hereby released and quit claimed or mentioned or intended so to be with the appürtenán tie's against all persons, shall and will jointly and severally warrant and forever defend, &c.”
    Also another deed dated September 15th, 1828, executed to the same by Vincent, Le Ray De Chaumont and Alexander Lé Ray De Chaumont in their proper persons and by Mons. Gou-vello and his wife by their attorney in the same words, except Some difference in the description and probate. Also a deed of the 6th of March, 1830, Pierre Jlrmand, Jean Vincent Iiippolite De Goitvello and Maria Theresa Le Ray De Chaumont his wife, to Matthew Forsythe, in consideration of one dollar whereby they “granted, bargained, sold, remised, released and forever quit dlaimed unto the said M. Forsythe his heirs, &c. in trust for the heirs of Robert Forsythe and their heirs, all the estate, right, title, interest, property, claim and demand of them, &c¿ of, in, to, &c. describing the land as before with siinilar covenants: and was acknowledged before the United States’ Consul at Paris in France on the 6th of March, 1830. These releases and conveyances from the children and heirs of Grace Cox Le Ray De 'Chaumont late wife of the plaintiff to the defendant Maitheio For-sythe in trust for the heirs of Robert Forsythe, deceased, included both the Bedford and Mifflin county lands which had been sold by the plaintiff to Robert Forsythe in his life time, and for the payment of the purchase money Oh part thereof, he had given his notes, upoii which the plaintiff’s claims were founded in these suits.
    Iiis honour the judge of the Circuit Court, before whom these causes were tried, after the testimony was closed on both sides, instructed the jury, that the plaintiff at the time of the last sale* had but a life estate as tenant by the curtesy, that the deed of conveyance from his wife to him was a nullity; — in short that he had no fee-simple, or such estate as he had covenanted to convey to Robert Forsythe, that although the plaintiff had made a deed of conveyance to his son Vincent in fee-simple with general warranty of the land which he sold to Forsythe, and with a view as it would appear, from the face of that deed, to enable his son Vincent to fulfil his contract with Forsythe.'by conveying the land to him in-fee-simple as soon as he should have' paid-all the purchase' money, • might be sufficient to convey hi's.life estate; and the. releases and deeds which'had been executed by Vincent^ his brother.and sister .and her husband and been given'in-evidence, might be sufficierit to ponvey the reversionary .estate in-fee of which they were seized.; yet they were not sufficient and did not convey .-and transfer to'-Forsythe’s heirs the life estate which had be»n vested-in the plaintiff and the béneñt of the covenant of general warranty contained in his deed of conveyance to Vincent the'son; becáuse, as the judge said “ Vincent doés not design to 'convey what he .got from his father, and no 'one of-them purported to convey .his'right, or purposed or intended to be liable'on his contract. -The words do-not make any one of them-liable .on his' contract and evidently and plainly they- did not intend to be so.” , . ' -

      ■S. Mexander for ’appellant.
    Every part, of the agreement between Ghaivmont and Forsythe. hnist be considered in construing Us true meaning: .and-although the seller is bound thereby, to, give “á-good warranty deed in fee simple” to the purchaser, yet it also provides .that p'ateiyts are to be obtained by Forsythe at his own expense. The father having Conveyed to his son with general warranty; iyhb together with his brother and sister, conveyed to Fdrsythe, vested in him a perfect' indefeasible estate in fee; and gáve' him also- the .benefit of the warranty of the vendor, who originally contracted with him. On the trial, the. defendant did not offer to re-.’cpn.vey; he hbld possession of the'lañd, and .wanted to hold the price of i't-also.'
    The plaintiff was at all events,-entitled’ to a conditional verdict, that no execution .should issue,' until-the titlé was'made perfect. The contract could not, in a’suit like this, be rescinded.; but' if the title was defective, the defendant should have' been compensated in damages.and not be defeated in liis 'áction. Ftihveiler v. Baugher? 15 Berg. & Ratole, 45. - ■ ^ . .

      Potter and Blanchard for appellee.,’
    ■ The contract Was executory, no deed.having Been made; this action is, therefore,-in the,nature'of a hill injetjuity, tocompel a specific performance'of the agreement. , -There are two classes of Cases which are nearly allied to each other.' 1.' When an action‘is brought to recover the purchase 'money, after the .deed has been made, and.the title is. defective; then the amount of such defect is the measure of damages. 2. When suit is brought upon the articles of agreement or , bonds, before deed made,'-although the payment of the purchase money be a condition.precedent;'yet the defendant toay show that the plaintiff has no title, and can have none; and thereby defeat his action. In this case the warranty of title’ was a material part of the consideration. If, therefore, the vendor has put it out of his power, to comply with his covenant, to convey the land in fee to the vendee, can he thus call upon him for a specific performance of the agreement on his part? . The vendor has, in conveying the land tohis-son, done an act inconsistent with his covenant, and he cannot call'upon Forsythe, to comply. Súber v. Búrke, 11 Serg. & Rawle, 238. * Cook v„ Grant, 16 Serg. & Rawle, 198. Colee Lit. 220. ' Taking it for granted, that the deed of the children conveyed the warranty of the father, yet that warranty was not such as the father was bound by his agreement to give to For'sythe. The consideration mentioned in th.e-deed from the father to the son, was $2451* and upon an eviction from the land, no more than that sum could be recovered on the‘warranty. Bender v. Fromberger, 4 Dali. 441. liingv.. Ryle, 8 Serg. & Rawle, 168; yet the consideration which Forsythe was to pay, was $3270; and this recital in the deed would be conclusive against Forsythe, in an action on the warranty against Chaumont. But if this recital .is not conclusive, will the law, in a case like this) throw the burden upon Forsythe, of proving what the consideration actually was, between Vincent and his father? A Warranty may be broken when proof of the actual consideration between tire father and son, now existing, is silent in death.
    The vendor, when he covenanted to sell, had the title- in him to the land: he had but a life estate. When he conveyed to his son, that life estate was thereby merged in the fee. ’ The deed from the father to the son, was not part of the title; and the deed from the son to Forsythe does not recite the deed of the; father; it was not) •therefore, assigned, and the covenant contained in it does not run with the land. . ,
    A good warranty deed in fee simple must be clear of all incum-berances. The patenting money not having been paid by the vendor, he did not offer-to convey such title. The clause in the agreement, relied Upon on the other side,-has relation only to small matters,, such as fees of office, vouchers, copies of papers, &c. Expressions in a. deed or agreement.must be taken most strongly against the grantor. t

   The opinion of the, court was delivered by

KENNEDY, I.

The Circuit Court was certainly correct in telling the jury, that the plaintiff at the time he sold the lan'd to Robert Forsythe, had but a life estate in it. The reversion in fee, was vested in his children which.he had by his wife Grace. But it is believed that the court was in error in saying, that the releases and deeds executed by Vincent and the other children, did not transfen the life estate of the father, the plaintiff, 'to the heirs of Robert Forsythe, together with the benefit of the covenant of general warranty, contained in his .deed to Vincent. As the father made his deed of conveyance to Vincent alone, he alone thereby became invested with all the father’s estate in the l.and, whether legal or equitable, and he alone could, after this, convey it to For-sythe or his heirs. Now, although Vincent, in his deeds of release, to Forsythe’s heirs, has no direct reference to his having derived any interest or right to the land from his father, he does in express terms, release,all his estate, right, title, interest, property, claim and demand whatsoever, without saying from whom he derived what he thereby released. Pie neither refers to his father or mother, as having obtained any interest in the land, through or by or from them, or either of them. He traces the title down, to his mother in these lands, but he does not undertake to say that that title had become vested in him by descent, or in any other way.. The whole certainly does profess and import to release and transfer all the estate, right, title, interest, property, claim and demand ivhatsoever, and must necessarily include all the estate, right, title,, interest, property, claim, and demand which he had to the land, whether derived from his father or mother. As well might it be said, that his release had passed nothing which descended to him from his mother, because it is not alleged' by recital or otherwise, in the release that he had become invested with any interest or claim to the land in that way. • This error of the Circuit Court, might readily happen in the hurry of the trial, from a misapprehension of the language ■ of-the release, and the very short time that i's allowed upon those occasions for examination, in supposing that the interest and estate released, were described as having descended to the i’eleasor from his mother. Such, however, is not the fact. I consider it evident then, that Vincent, by his deed of release, passed to the heirs of Robert Forsythe, a complete legal title-for the life'estate, which had been in his father, as also for all his reversionary interest in fee, to one undivided third part of the'lands. Y also think it manifest, fr'om the whole transaQtion, and the face of the deeds and documents, that they were all executed with a view to, and for the purpose of, carrying into effect, the articles of agreement which the plaintiff had made with Robert Forsythe. It is evident from the clause which is. contained in the deed of conveyance from the father to Vincent, that he did it for the express purpose of enabling him to convey to Forsythe, after the purchase money should be paid; and with that in his mind, he adds a covenant of general warranty, which Vincent, when he transferred in fee to Forsythe would necessarily transfer also to Forsythe, as it was a covenant that would go with the land. In order to do this it was pot necessary that Vincent should make a deed of conveyance or release to Robert Forsythe, or his heirs, with a general warranty on his part, so as to enable Forsythe or his heirs in case of eviction to recover of the plaintiff for a breach of his covenant of warranty contained in the deed of conveyance to Vincent. For this purpose it would have been sufficient for Vincent to have conveyed or to have released in fee simple, to Forsythe or his heirs, without any warranty at all. Indeed it may be, that this is the more safe way,-in order to avoid all objections; though I think myself,' that either with or without general warranty, would answer the same end. Yet the general rule laid down on this-subject, in. Bickford v. Page, 2 Mass. 460, and in Kane v. Sanger, 14 Johns. 93, is, that when covenants run with the land, if the land is assigned or convoyed before the covenants are broken, and afterwards, they arc broken, the assignee or grantee can .alone bring the action of covenant to recover damages; but if the grantor or assignor is bound to indemnify the assignee or grantee, against such breach of covenant, then the assignor or grantor must bring the action, and in the case last cited, it was held, that the grantee or assignee with warranty could not maintain an action for breach of covenant by a prior warrantor,' because the plaintiff had his indemnity on the covenant made immediately to himself. This qualification of, or-exception to the rule, is not to be found in Co. Lit. that I know of. In Co. Lit. 384 b., Coke, on this subject says, ‘in judgment of law, the assignee of the heir is the assignee of the ancestor, and so the assignee of the assignee shall vouch in infinitum within these words (his assigns.”) See also Butler’s note to-page 384 a, No. 333, where he says, a purchaser who has notice of a defect in the title to the land, at the time of his buying;, and does not take a covenant to provide against it from his vendor, he is without remedy; unless he can avail himself of the covenants of the earlier vendors, many of which are inherent to the lands, and to some of which, as the covenant for quiet enjoyment, there is no objection on account of their antiquity, when the breach is recent. I am inclined to think, that the assignee or grantee, may maintain his action for a breach of covenant, which takes place in his time* and that has run with the land, whether he have a warranty or not to himself, against any of the prior grantors or assignors, who have entered into -such covenants. Withy v. Mumford, 5 Cowan, 137, Booth v. Starr, 2 Connec. Rep. 244, Shop. Touch. 176, 198, Com. Dig. tit. Covt. G. 3. Baylye v. Hughs, Cro. Car. 137, Bac. Abr. Covt. E. pl. 2, 5. Middlemore v. Goodale, Cro. Car. 503. In this transaction it is further manifest, that the children-of the plaintiff) have given and executed their releases of all right,, interest, claim and demand whatsoever, which they had to the land, in fayor of the heirs, of Robert Forsythe, for the purpose of carrying into effect the articles of agreement which their father made with the deceased. They had no contract or connection .with Robert Forsythe or his heirs, in respect to the land. ’ They were under no obligation to them or either of them. There is no'reasón for which'it can be supposed or imagined that they .executed the rev leases, but that of fulfilling the agreement and design of their fath-. er in making Robert Forsythe and his heirs perfectly secure in the title to the land. .For this purpose it was not necessary that they should bind themselves by warranty, nor yet express any other consideration in their deeds than nominal ones. The deed of conveyance from the plaintiff to his son, constituted him a trustee for carrying into effect his agreement with Forsythe for the sale of the land. It is fair to presume that Vincent accepted of this trust, as he has not only made an assignment of all his interest and estate in the lands to Forsythe’s heirs, but obtained authority of his brother and sister to transfer their rights also. In this way Forsythe’s heirs have not only become the assignees of the plaintiff, and as such entitled to the benefit of his general warranty in the.deed to Vincent, but by the deeds of release and conveyance from the children of the plaintiff, every claim and interest that are knqwn to have existed at any time for this land in any body; have been vested in these heirs, except the claim which the Commonwealth has for a balance of the purchase money.

This brings us to another question, which will present itself on the trial of these causes again, in the Circuit Court; and therefore it is proper to express the opinion of this court on it now. In order to decide this question correctly, it is necessary'to look into the whole of the agreement between the plaintiff and Robert For-,, sythe; and to ascertain what was their meaning and intention; for this, whatever it may be, if lawful, must determine the matter on this point. In one part of the agreement the plaintiff covenants, “,’to sell and convey to him, (Forsythe) by a good warranty deed in fee simple.” This,, according to some decisions, if there was nothing more in the agreement relating to this matter, would imply an obligation on the part of the plaintiff to procure a patent for the land, but in a subsequent part of the agreement follow these words; ‘‘It is further understood between the parties, that the said James will deliver to the said Robert the original deed given by the said Charles Cox, to the said Grace Cox de Chaumont, to be regis-. tered in the counties of Mifflin and Medford, state of- Pennsylvania, and that the said James is to be at no expense for the said registering or obtaining the patents, or any other title, voucher or document which the said Robert will think proper to get for his own personal satisfaction or security. The said James, giving him full power at the same time to claim the said title, voucher or document from every person or persons, public or private.” Here we have an express stipulation, that the plaintiff is to be at no expense in obtaining the patent. What is the expense of obtaining the patent, and what would be generally understood by this expression? Surely whatever remained to be paid to the state, in order to obtain it. It is a rule in the construction of agreements to give effect to all the words used by the parties, as far as practicable, and to receive them according to their common acceptation. It appears to me that it would not only be a direct violation of this rule, but of the intention of the parties, to decide, that the plaintiff was bound by this agr eement to be at the expense of procuring the patent. It has been contended that the other words which stand in connection with the words “obtaining the patent,” show that they were used to convey a quite different idea; such as not being at the expense of registering or obtaining certified copies of title deeds for the land, or the deeds themselves, wheresoever they might be found, either with a public officer, in a recorder’s office, where they might have been left for record, or with any private individual. All this may well apply to the deeds forming the links in the chain of title for this land, from the warranty down to Grace Cox’s; for it would seem from the plaintiff’s having covenanted to deliver to ’Forsythe the original deed of conveyance, and that alone, from Charles Cox to Grace his daughter, that that was the only deed, voucher or document connected with the title to the land that he had in his possession; and that Forsythe was to look after the others, and to be at the expense of procuring copies when the original could not be had, and to have the authority and power of the plaintiff, to demand and receive the original deeds wherever they might be found. All this was necessary as a preparatory step to obtain from the land-office the patent; but it seems to me impossible, without doing violence to the meaning of the parties to say, that they, both knowing that no patent existed then, intended nothing more by using the words “obtaining the patent,” than that the plaintiff should not be at the expense of registei'ing it, which to be sure is done in the land-office; but for which every body knows there is no separate charge or fees to be paid; or for obtaining a certified copy of a patent known not to be in being. It appears to me that such title, as the plaintiff was bound to make to Forsythe or his heirs, has already been made; and there remains no good objection to the payment of the balance of the purchase-money, whatever it may be. That the non-suits in both cases ought to be taken off, and the causes reinstated for trial, and records remitted to the Circuit Court, which is ordered to be done.

Judgment reversed, and new trial awarded.


source: Caselaw Access Project

author: GibsoN, C. J.

license: Public Domain

text:
    COMMONWEALTH, at the relation of JOHN SNYDER and others, against JOHN MITCHELL, JAMES CLARK and JAMES S. STEVENSON, Esquires.
    MANDAMUS.
    On motion of E. Greenough, attorney for the relators, rule osi John Mitchell, James Ciarle and James S'. Stevenson, Esqrs., to appear before the Supreme Court at Sunbury, on the 2d Monday of June next, at 10 o’clock, A. M., and show cause why a mandamus should not be granted to compel them to pay the relators the amount awarded to them respectively on the reports of viewers in TJnion county, for damages occasioned by the Pennsylvania Canal.

      This rule was granted at June term, 1830, upon the following affidavit:

      Northumberland County, set:

      John Snyder, on his solemn oath saith, that at a Court of Quarter Sessions of Union county, of September Term, 1829, the report of viewers appointed to assess damages sustained by deponent by reason of the Pennsylvania Canal obstructing his mills, &c., was approved by the said court, and confirmed with the consent of -the agent and attorney of the Commonwealth; "which damages were assessed at the sum of $6S3 33. Deponent procured a certified copy of the same, and in the month of December or January last, delivered the same to John Ryan at Harrisburg, a superintendant of the Susquehanna division, and demanded payment. The said Ryan went with deponent to the canal office, and delivered said record to John Mitchell, an acting canal commissioner on the Susquehanna division, and said deponent then demanded his money; the-said Mitchell said he would lay the matter before the Board, and inform deponent of the result, which he did, by writing^ that his claim would be contested in the Supreme Court. Deponent further says, that on the 2d day of July instant, he exhibited to John Ryan, the present superintendent of said division, under the new board of canal commissioners, the record of said assessment of damages, and demanded payment, which was refused.
    Now June term, 1831, the respondents showed for cause, by their return, that they had no power to appropriate the public funds in their hands to the payment of these demands.

      Greenough for relators,
    Cited the act of 9th April, 1827, sec. 8, Pam. Laws of 1826-7
      p. 197, which provides the mode by which damages shall be assessed; and that they shall be paid by the acting canal commissioner: •and the act of 6th April, 1830, Pam. Laws, 218, that the powers :and duties of the commissioners shall be the same as those of the acting canal commissioner under the act of 9th April, 1S27.
   The opinion of the court was delivered by

GibsoN, C. J.

Although power to grant writs of mandamus was given to this court by the legislature so early as 1722, no trace 'of its existence in practice is found in our books before the case of Respublica v. Clarkson, 1 Yeates, 46, which was determined in 1791, since when recourse has been frequently and advantageously had to it where there was a clear right without a specific means to enforce it. It, however, involves- an exercise of extraordinary power, which fits it for use only in extraordinary cases, where there would otherwise be a failure of justice. Although demandable of common right, it is truly said to be grantable at discretion; for an indiscriminate use of it, would certainly lead to its abolition. With us, it is supposed to stand very nearly, as it did in England before the Stat. 9 Ann, Ch. 20; and an early but salutary doubt seems to have been entertained of the propriety of substituting it for a remedy which merely happens to be more tedious. . That doubt has since been resolved into certainty by the judgment in the Commonwealth, at the relation of the Insjjcctors of the Philadelphia Prison v. The Commissioners of Alleghany County, 16 Serg. & Rawle, 317, in which a mandamus to compel the commissioners to pay an account, before recovery had in an action against them in their corporate capacity, was refused, because the extraordinary powers of the court are not to be invoked before the right has been established, where it is susceptible of it, by a verdict and judgment, br other proceeding in the nature of it. In the case at bar, there is no room for objection on that ground; and the inquiry is, whether the respondents are disbursing officers for the purpose of paying these damages, without which, it were immaterial that they have been assessed by viewers whose report has received the approbation of the proper court according to the law then in force. The state, having created the debt and provided the means of payment, can be called on only in the mode prescribed by law; and if the means have been withdrawn by inadvertence or design, the deficiency can be supplied only by the legislature. Although private property may be taken for public use, consistently with the constitution only on compensation made, it never has been thought that the state may be made an involuntary party to a judicial proceeding to enforce it. Compulsory process against a sovereign, would be a novelty in jurisprudence; for no instance is known, of an action or other proceeding against one without permission had in the constitution, or an act of the legislature. Nor may the public funds be intercepted in the hands of the proper officers, or diverted from objects to which they have been appropriated. Aside from the question of dignity, it is evident that the disorder which such 'an interference would introduce into the public affairs, would be intolerable; and if further argument against it were necessary, it Would be found in the Constitution, art. 1, -§ 10, which declares, that “no money shall be drawn from the treasury except in consequence of appropriations made by law.” The point, then, is, whether the respondents are disbursing officers for the purpose of paying these demands; for it is only to enforce obedience to the plain directions of the laws, that they are answerable here. The demands of the relators are for damages separately - reported by Viewers) under the act of 1827, which it was the business of the acting canal comihiSsioners to pay. By the act of the 25th of April, 1826, the board'was directed to appoint with that title, one or more of its members; to the performance of separate executive duties, including the whole business of disbursement, for which he was required to give security in 50,000 dollars, the funds being, put into his hands by direction of the board on warrants drawn by the governor. Being thus charged, he made all payments in the course of the business on his own responsibility, and settled his accounts with the proper department of the government; and on this footing, matters remained till the 6th of February, 1830. On that day the legislature directed the governor to appoint a new board, with the specific powers of the old one, together with others to be particularly noticed; and supplied the place of acting canal commissioner with that of an officer called a superintendent, whose duties of disbursement are limited to payment o.f the contractors. Of the additional powers given to the new board, the first has respect to assessments by appraisers under the new law, and it is therefore distinctly prospective as regards the subject of its operation. The remaining power is alleged to bo more material, as it authorizes the respondents ’to compromise all cases of damages then .depending in court. Taking, then, the reports ’of the viewérs in the case under consideration, to be depending, according to the meaning of the legislature, (for having received the final act of the court, they are clearly not so according to the technical méaiiing- of the word,) how far, and for what purpose;'have the respondents power to act on them? Clearly no further.than to offer of receive terms of compromise, and to make satisfaction according to them when accepted. . They seem not to have an unqualified power to pay the whole or a part; and whether they were purposely restricted in this particular, by reason of a belief that the state bad been wronged by the viewers, it is not our business to determine, it being sufficient for the purpose of the present decision, that the respondents have not withheld the public money from any object to which it was legally appropriated. But even had they a discretionary power over •the subject, it would be for them to judge of its exercise, and, of course, without accountability here. The application of the rela.-tors must therefpre be refused.

Rule discharged.


text:
    PATTERSON against CUMMIN.
    An order to the sheriff, by a judgment creditor or his attorney, not to consider hi® judgment, in holding an inquisition on .the defendant’s real estate, will postpons that judgment to all others, then being against the defendant.
    Error to BJifflin county.
    There were three judgments in the Common Pleas of Mifflin county, against William C, Kelly — one of John Patterson, one of John Cummin, and one of George Goosehorn, having priority in the order in which they are mentioned. Fi. fas. were issued on the last two, which were levied upon the defendant’s real estate, and when the sheriff was about to hold an inquisition thereon-, he received the following notice in writing, from the attorney of Patterson, which was entered on the record of the judgment.
    “To Foster Millihen, sheriff of Mifflin county:
    You will please not have the above stated judgment considered by the inquisition, for the condemnation of William C. Kelly’s property at this time.”
    The property was not condemned. William C. Kelly after-wards died, and the same real estate was sold by his administrator, in pursuance of an order of the Orphans’ Court. The proceeds of sale was not sufficient to pay all the judgments; and the question presented were: whether the order of Patterson's attorney to the sheriff postponed his judgment to those of Cummin and Goose-horn. The court below (Burnside president) was of opinion that it did, and so rendered judgment; which, after argument in this court, by Hall for plaintiff in error, and Potter contra, was affirmed.
   Judgment affirmed.


author: Gibson, C. J.

text:
    M’PHERSON’S ADMINISTRATORS against REES.
    A release in consideration of present embarrassment,is, necessarily, on an implied con-ditionin morals, that advantage be not taken of it, after the embarrassment has ceased. That which has been conceded to a debtor's necessities, may be justly and honestly retracted on the principle of failure of consideration, when he no longer has necessities to be relieved. _ All that is wanting to that end, is a legal means, which the creditor may consoionably yse when it is put into his hands by the debtor himself: such as a subsequent promise to pay.
    A. having released a debt of the estate of which he was executor; subsequently settled his administration account in the Orphans' Court, as did also B his co-executor. In consideration of some arrangement II charged himself with the debt thus released by A and the accounts were confirmed. Held: that the confirmation of the accounts by the Orphans’ Court was a conclusive discharge of A from all liability to pay the debt released by him, and that there did not remain such a moral obligation on his part, as would be a sufficient consideration to support a subsequent promise to pay it. Such promise was without consideration, and. there could, therefore, be no recovery upon it.
    Wit it of error to the Court of Common Pleas of Union county.
    This was an action on the case brought by George W. Rees against the administrators of John M’Pherson, and the following were the facts: — In 1804 Daniel Rees died, having first made a will and appointed John M’Pherson, Jtdam Crist and Catherine■ Rees his executors, and gave them power to sell his real estate. In 1808 the executors sold the estate to Mathias M’Pherson the son of John M’Pherson one of the executors, and took a mortgage upon the land to secure the purchase money— £787, which was payable in annual instalments. The mortgage was recorded; and in 1814 John M’Pherson, upon the margin of the record, acknowledged full satisfaction, and released the land from its lien. At this time JLdam Crist one of the executors was dead, and John Snook was one of his executors. Between John Snook and Mathias M’Pherson, the purchaser of the land, there were transactions, in consideration of which, Snook engaged that, as the executor of Adam Crist, he would account to Daniel Rees’ estate for the purchase money of the land; and thus John M’Pherson was induced to enter satisfaction upon the record of the mortgage, without having received any part of the money. In 1816 John M’Pherson filed an administration account of the estate of Daniel Rees; in which he did not charge himself with any part of the purchase money of the land: the account was held under advisement. In 1817 Snook as executor of Adam Crist filed an administration account of his testator of the estate of Daniel Rees; in which he charged himself with the receipt from Mathias M’-Pherson of the purchase money of the land. In the same year Catherine Rees filed her administration account also. To these accounts exceptions were filed by Robert Vanvalzah the guardian of George W. Rees the plaintiff, and they were all referred to auditors, who in January, 1818, made a report: in September, 1818, the Orphans’ Court made a decree, and directed the Clerk to draw up the accounts accordingly; which was done; and in June, 1819, the accounts were confirmed. In the accounts as finally confirmed Snook, executor of Mam Crist, was charged with the purchase money of the land, and John M’Pherson and Catherine Rees were not. Robert Vanvalzah was sworn as a witness, and said, that he had a conversation with John M’Pherson in his life time, in which he stated that his son Mathias had imposed upon him, in procuring him to enter satisfaction on the mortgage; that he had done so under the belief, that Mathias had made an arrangement with Snook to pay the money; and if the money could not be recovered from Snook, the heirs of Daniel Rees should not lose it, but he (John M’Pherson) or his estate should pay it. The witness also stated, that John M’Pherson made this declaration to him more than once. This suit, then, was brought by George W. Rees the son and heir at law of Daniel Rees to recover the said purchase money from the estate of John M’ Pherson deceased.
    Upon the foregoing facts, the Court below instructed the jury that the plaintiff was entitled to recover, who found a verdict accordingly.

      Greenough and <51 Hepburn, for plaintiff in error.
    The subject-matter of this action was the subject-matter of inquiry by the Orphans’ Court, when they adjudicated and passed upon the administration accounts of the executors of Daniel Rees: it, then, having passed in rem juclicatam, by a well known and ad-*' mitted principle of the law, all obligation to further accountability was thereby discharged: and inasmuch as the defendant’s intestate never received one dollar, as the consideration for entering satisfaction upon the mortgage; there was not left the slightest moral obli - gation to account to any one, for an act done in good faith. If, then, there was neither a legal nor moral obligation to account for this money, the promise by John M’Pherson was nudum pactum- and the plaintiffs can not recover. That the decree of the Orphans’ Court was conclusive, there were cited Graff v. Groff, 14 Serg. & Rawle, 181. M’Fadden v. Getlis, 17 Serg. & Rawle, 336, •Bucher v. Bucher, 1 Razóle, 3 57. JLpp v. Driesbach, 2 Ratule, 387.' That the promise was without consideration and-therefore there could be no recovery? were cited, Pease v. Alexander, 7 Johns. 25. Thorne v. Deas, 4 Johns. 84. Peake’s Ev. 297.

      Merrill and Lashells, for defendant in error.

      M’Pherson having entered satisfaction upon the mortgage, was legally and therefore morally bound to account to the heirs of his testator for its amount; if an impositipn was practised upon him by his own son, it was his own fault; and if any arrangement was made, between him and Snook, at the time the accounts were settled, that Snook should pay the money, and he afterwards failed to pay’it, certainly it left a strong moral obligation on M’Pherson to pay, which was a sufficient consideration for the often repeated declaration that he would pay. Willing v. Peters, 12 Serg. & Rawle, 177. The case of Field’s estate 2 Rawle, 351. 8 Mass. 127. '
   The opinion of the court was delivered by

Gibson, C. J.

—A release in consideration of present embarrassment, is necessarily on an implied condition in morals,- that advantage'be not taken of it, after the embarrassment has ceased. A remission, which has in view an immediate relief from pecuniary pressure and not an ultimate gift of the money, gives no moral right to an extension of the creditor’s generosity beyond the object originally contemplated. A release for value or perhaps even pure good will, would extinguish the debt both in honour and conscience, such being the purpose of the creditor at the time; but what has been conceded to a debtor’s necessities, may be justly and honorably retracted on the principle of failure of consideration, when he no longer has necessities to be relieved. All that is wanting to that end, is a legal means which thq creditor may con-scionably use when it is put into his hands by the debtor himself. It seems to me, therefore, the decision in Willing v. Peters is founded in the plainest principles of reason and justice. On, ground less secure in point of reason, seems to rest the morality of the obligation imputed to a debtor who has been discharged by a statute of bankruptcy, as I attempted to show in the case of Field’s Estate, 2 Rawle, 351, without, however, at all questioning the authority of cases in which it has been held to be a sufficient consideration for a promise. The case here depending, as it docs, entirely on principle, is of a different stamp. The' supposed natural obligation which was made the consideration of the promise, was taken to be an original liability of the defendant’s intestate for mismanagement as an executor. .Now a trustee is answerable in equity, and consequently in conscience and morality, only for negligence, without which he is not bound to make good a loss suffered by the cestuy que trust; and how was the existence of negligence thought to be established? Only by rejudging the judgment of a court of competent jurisdiction directly on the point. The propriety of that seems questionable at the first blush. No one will pretend that an obligor who had thought proper to promise payment notwithstanding a verdict .in his favour, would be bound in an action on the promise, to show want of consideration, or, in other words, the absence of a moral obligation, by giving proof of actual payment, and thus trying the matter of the former defence all over again. If the plaintiff were not estopped by the verdict from inquiring into the fact, on which the existence of the alleged moral obligation is supposed to depend, a promise to pay would be but an agreement to waive the estoppel, for which, a supposition that the verdict was unjust, would be no consideration, because an obligation to waive the benefit of, it, could arise only from a certainty of the fact; and to permit the'parties to go behind the judgment, to ascertain what they had ample opportunity to ascertain before, would be against sound policy, which requires, that a final judgment on full hearing should put a stop to further litigation. That an agreement on sufficient consideration, to waive the advantage of an estopppl will be executed, is not to be denied; but it is an assumption of the whole matter, to say there is a moral obligation and consequently a valid consideration, because it maybe unconscionable to insist on the estoppel. That would be the very matter to be tried, after the defendant had been let into the whole benefit of the agreement, by being permitted to reiterate his original demand; and thus the defendant would be subjected without an equivalent, to the hazard and vexation of a second trial,, Surely a promise to do that, would be without consideration. Here the defendant’s intestate, had stated a separate administration account, and the court below erred in supposing that the question of negligence, and consequently the existence of a consideration, had not been put at rest by the decree of confirmation.

,Tudgment reversed.


author: Kennedy, J.

text:
    GRANT against SEITSINGER.
    Ah agent appointed to collect money, shall not buy a note of his principal at a discount, and retain the whole amo.unt of it out of the pioney Collected; but shall only retain the amount which he gave for the note. An agent must deal fairly with his principal.
    If he who puts a note into the hands of an agent for collection, is but an age.nt hijn- ' self; he who collects the money cannot retain at all, if he is aware of the circumstances; he who is ultimately entitled to the money, may revoke the power of him" who was appointed to receive the money at any time, although the evidence of the debt to be collected, was a note to his agent.
    EititoR to the Common Pleas of Northumberland county.
    An action for money had and received, was brought by George Grant against Jacob TV. Seitsinger; the cause having been ordered for trial, the defendant confessed a judgment for the amount of the plaintiff’s claim, upon the following agreement being entered into by the parties in interest.
    “An issue to be formed, upon which it shall be left to a jury to determine, whether George Grant or Lyon's executors be entitled to any part of the money, and if so, to how much, and whether Seitsinger be entitled to retain any portion, either on account of Ifepple’s note and the expenses of collection, or any other account whatsoever.”
    It was upon the trial of this feigned issue, that the questions in this case arose: the facts of the case.are so fully stated in the opinion of his Honor* who delivered that of. the Court, that they need not be repeated here.

      Bellas and Greenough, for plaintiff in error.

      Donnel, for defendant in error.
   The opinion of the Court was delivered by

Kennedy, J.

—Edward Lyon in his life-time, had authorized the plaintiff George Grant, to receive some money coming to him from James L. Dunn. By this authority, Grant called upon Dunn, who not being able to pay the money, then gave his note for it, payable to Grant’s order. This note was retained by Grant, for the purpose of collecting the money upon it, until Lyon’s death. After this, Grant indorsed the note and gave it to the defendant Jacob TV. Seitsinger, merely for the purpose of demanding and receiving the amount due on it. Seitsinger brought a suit’upon the note, against Dunn, obtained a judgment against him, and afterwards received the money- At the time Grant gave the note to Seitsinger, or at least before Seitsinger received any money on account of it, he told Seitsinger that the money mentioned in the note, belonged to the estate of Lyon. After Seit- ¡singer had thus received the note of Grant for collection, he got a note of Grant’s for fifty two dollars, from one Thomas Kepple, dated April 12th, 1820, payable to his order on demand; this note was indorsed by Kepple to Seitsinger; Seitsinger pretended some other claim beside this against Grant, and told him, before any of the money had been collected from Dunni, that he intended to keep his claim against him (Grant) out of it; to which Grant replied that he could not do that, for the whole of the money was coming . to Lyon’s estate; that no part of it belonged to hfm. Before this, as Seitsinger alleged, Grant had said that Lyon’s estate was indebted to him, and he intended to keep the money. The amount of money received by Seitsinger from Dunn, exceeded two hundred and thirty dollars, for which a judgment was confessed by Seitsinger, without prejudice to either party, and subject to an agreement, that a feigned issue should be formed, to. determine whether Grant, Lyon’s executors or Seitsinger, or any one or all of them were, entitled to the money; and if more than one of them, whom, and in what proportions. It was again agreed by all the parties concerned, that the foregoing question should be tried-Without formal pleadings. Upon the trial no evidence was offered, to show that Grant had any claim against the estate of Lyon, or any concern or right to the money, other than an order from Ijyon in his life-time, to demand and receive it for Lyon’s own use, so that the contest remained between Lyon’s executors and Seitsinger. In the course of the trial, the counsel for Lyon’s executors offered in evidence the deposition- of James L. Dunn, which had been taken under a rule of court, but without notice to Jacob W. Seitsinger or his attorney. It was offered for the purpose of showing, that George Grunt was the agent of Edward Lyon to collect the money from James L. Dunn, and that it was a debt owing by Dunn to Lyon, and not to Grant; the counsel offering it, also stipulating at the same time, that if admitted in evidence it should not affect Seitsinger, but should only be used as evidence to settle the question between Grant and Lyon’s executors. This was objected to by the counsel for Seitsinger, and the testimony was , over-ruled by the court. To this decision of the court, the counsel for Lyon’s executors excepted, which is the first error assigned.

There was certainly no error in rejecting this deposition, because it went to show that Grant had no claim or right of his own to the money, which struck at the very root of Seitsinger’s claim, who was a party to the issue trying, and had a right to insist that no testimony should be given to the jury, that had a tendency to determine their minds against him, on the question which formed the very pivot upon which his claim to the money turned, without an opportunity of a cross-examination being afforded to him.

Neither do I conceive that there was any error in the admission ofthe note in evidence, which had been drawn by Grant in fa-vour of Kipple, and by him assigned to Seitsinger. Although the law would not permit Seitsinger to retain the amount of this note out of the money, if it belonged to the executors of Lyon, yet that question, whether it was Lyon’s money or not, was a fact to be decided by the 'jury; and as they decided that, they were to find in favour or against Seitsinge?'’s claim. Because, I think, that in case the jury had been convinced that the money belonged to Grant, and not to Lyon’s executors, it would have been their duty to have allowed Seitsinger out of the money, what he paid for the note, and no more: I say no more, because an agent or mere trustee, ought never to be permitted to speculate on and make profit out of the funds or moneys of his principal or cestui que trust, without accounting for it. With this view of the subject in controversy I think the note was admissible evidence.

The third and last error assigned is, that the court below erred in answering the first, third, fourth and fifth points, submitted by the counsel on behalf of Lyon’s executors. The court in answer to the first, third and fourth points, charged the jury in substance, that if Seitsinger purchased and obtained the note of Kipple against Grant, upon the faith that the money coming from Dunn, would come into his hands, before he knew that the money belonged to Jjyon, or his executors, he was entitled to have or retain the amount of it out of the money collected from Dunn, and that too, whether the money belonged to Grant or to Lyon’s executors. In this opinion of the court, there was error. It must appear to every man of common sense, upon the first blush, that it would be highly unjust, that the moneys of Edward Lyon or his executors, should be appropriated, without their consent at least, to the payment of George Grant’s debts. But it is said by the court below, that if Seitsinger purchased the note from Kipple, upon the faith, that he would be paid out of this money when collected, then Lyon ought, as between him and Seitsinger to bear the loss if any, and Seitsinger should be entitled to retain the amount of the note. It is difficult to conceive of any just ground, upon which Seitsinger, who was merely the agent of Grant, and had no right whatever, to any part of'the money coming from Dunn, but a mere naked authority to demand and receive it for Grant, could have been impressed with an idea or confidence, that he had a right to dispose of it, or to give himself a lien or claim upon it, without the consent of Grant, even supposing it had been Grant’s. Nobody can doubt, but that the authority conferred by Grant upon Seitsinger, revocable; but if Seitsinger to collect this money of Dunn, was could purchase up outstanding debts against Grant, in expectation, or upon the faith, as the court below told the jury, that he would thereby acquire a right to have the money, for the purpose of satisfying such notes, it would be to make his power irrevocable, and to give him a right to receive the money in despite of Grant. If Seitsinger had intended ta> act fairly with Grant, and safely for himself, he, before he purchased this note of fifty two dollars against Grant, would have first spoken to Grant, and made known to him that he was about to do so; and if upon his doing so, Grant had told him to get it if he could, and take the amount of it, out of the money coming to Dunn, as soon as collected, he might then have said with some propriety, that he had taken the note, upon the faith of his getting the amount out of that fund when received, and if the money due ■ from Dunn, had been coming from Grant in his own right, Seit-singer would have been entitled to it. Seitsinger had no authority to, receive this money, that Grant could not have revoked offset aside at any time, either before or after Seitsinger got the note of Kipple, and I will go further, and say, that Lyon’s executors might have interposed, and prevented either Grant or Seitsinger from receiving it, as neither of them ever had any right to it. In support of this position, see Barber v. Prentiss, 6 Mass. Rep. 430. Herrick v. Carman, 10 Johns. Rep. 224. Cornstock v. Hoog et al., 5 Wend. 600.

Judgment reversed and a venire de novo awarded.


author: linNNNDV, J.

text:
    DRINKER against BYERS.
    A guaranty of title, executed and delivered by a vendor to a vendee, is not .merged in a subsequent deed of conveyance, which contains only a special warranty.
    Wbit of error to the Common Pleas of Centre county.
    This was a scire facias upon a mortgage, at the suit of Thomas Stewartson, surviving executor of Henry Drinker, against Jacob Byers, with notice to a terre-tenant. Issue was joined upon the plea of payment with leave, &e.
    The mortgage upon which the suit was brought was given to secure the purchase money of land sold by Drinker to Byers, for which a deed of conveyance was executed and delivered, the 20th of February, 1793, .and which contained a clause of special warranty. The defendant, to support the issue on his part, offered in evidence the following agreement or guarantee, which was in the band-writing of, and signed by Henry Dririker, the plaintiff’s testator. “It being represented to me by John Nisely and Jacob Byers, who have purchased two tracts of land of me, situate on Bald Eagle Creek, that a certain Derrick Gonsalus makes some pretentions to part of the said two tracts; although I am well persuaded he has no just claims or right to any part of the said land; yet for the satisfaction of the said Nisely and Byers, I hereby engage that I will be answerable to them for any claim or demand of the said Gonsalus; that if it should appear hereafter there is any justice in his claim, I will indemnify and save harmless the said Nisely and Byers on that account. Philadelphia, 1st Month, 31 si, 1793.” And offered to follow this up by proof, that actions of ejectment were brought upon the title of Gonsalus for the same land, upon which a large portion of it was recovered from the present defendant; and that in defending said ejectments, he expended large sums of money; which, together with direct payments, amounted to more than the purchase money secured by the mortgage, after deducting the value of the land actually lost.
    This evidence was objected to, on the ground that the paper offered in evidence was prior in date to the execution of the deed of conveyance and mortgage, and was therefore merged in them; and that the eviction of the defendant from part of the land, could not be given in evidence, because the deed from Drinker to him contained only a special warranty. The objection was over-ruled, the evidence admitted, and the court sealed a bill of exceptions, at the instance of the plaintiff.

      Potter for plaintiff in error.

      Blanchard for defendant in error.
   The opinion of the court was delivered by

linNNNDV, J.

The only question which arises in this cause is, whether the agreement of indemnity executed by Henry Drinker, on the 31st of January, 1793, a few days before he executed the deed of conveyance, with special warranty for the lands, to the defendant, was extinguished by the defendant’s acceptance of a deed af-terwards, on the 20th of February following.

It has been contended by the counsel for the plaintiff, that as the promise of indemnity of the 31st of January, 1793, was collateral to the purchase of the lands, and as deeds of conveyance with spe-: cial warranty were made by the vendor, on the 20th of February following, and accepted by the defendant without objection, it was thereby merged, according to the rule and principle laid down in Share and Anderson, 7 Serg. & Rawle, 43, The principle decided in that case is, that collateral parol promises, made by the vendor on the execution of articles, or of a deed, to indemnify the vendee against incumbrances, were merged in a deed given after-wards, containing a warranty against the same incumbrances; and that they could not be taken advantage of in a suit for the purchase money, when they were not alleged as proofs of fraud. Now, in. the case before this court, although the promise of indemnity by the vendor to the vendee was collateral, and in writing, yet no covenant of indemnity or warranty was given in, the deed against the same claims or incumbrances, as' in the case of Share and Anderson, -and therefore this case does not fall within the principle of that. It cannot be said in this case, as it was in that, by the present Chief Justice, who delivered the opinion of the court, .that the vendee can have redress for the loss of the land upon any covenant contained in the deed, because none is to be found there which will meet the injury which has arisen to him. The promise of indemnity, however, embraces it exactly.

In the next place, it has been insisted on, that the execution and acceptance of the deed of conveyance was a consummation of all previous agreements between the parties relating to the purchase of the lands. That this collateral promise of indemnity was thereby waived, and that the vendor was discharged from his obligation under it. It is certainly true that when articles of agreement for the sale of land are carried'into execution, by a conveyance from the vendor and bonds from the vendee, the contract, in general, is considered as closed, unless in extreme cases, showing gross misapprehension or fraud. Bailey v. Snyder, 13 Serg. & Rawle, 160. Seitsinger for Drinkel v. Weaver, 1 Rawle, 384. Crotser v. Russell, 9 Serg. & Rawle, 78. McKennon and Henderson v. Doughman, 1 Penn. Rep., 417. This, however, is but a general rule, to which there are exceptions; see Brown v. Morehead, 8 Serg. & Rawle, 569, and is founded merely on presumption, which may, as I apprehend, be rebutted by circumstances or parol evidence. In the case of Frederick v. Campbell, 13 Serg. & Rawle, 136, parol evidence was held admissible to show that at the time the deed was executed, the vendor declared to the vendee, that he had a good title to two hundred and twenty-five acres, and would warrant that quantity of land, the deed containing no such covenant or warranty. In the present case, although the promise of indemnity does not appear to have been made at the time qf executing the deed of conveyance, yet its date is only three weeks anterior, and would appear from its terms, to have been made some time after the agreement for the sale of the land. This promise of indemnity was. made in writing and delivered to the vendee; it is still retained by him; not delivered up to the vendor at the execu-iion of the deeds, as would most lilcely have been done, had there been any understanding or agreement between the parties at that time, that the vendor was to be no longer bound by it. It might perhaps therefore be reasonably inferred, that the vendee, having received this promise of indemnity but a few days before the deed of conveyance, relied upon both as his security; and was induced thereby to give his bonds and mortgage for the payment of the balance of the purchase money. But what seems to confirm this inference, and put it beyond a doubt, is the conduct of Henry Drinker., the vendor subsequently, and as long as he continued to live, in employing and paying counsel for defendihg the suits which were brought afterwards against the vendee to recover the land, or a part of it, upon the same right against which he had given this promise of indemnity. This can only be accounted for upon the principle, that he still considered himself bound to indemnify and defend the vendee, notwithstanding ho had accepted of a deed of conveyance from him, without any such covenant. It is a practical construction of what was the understanding and agreement of the parties, in regard to this matter, which seems to demonstrate the correctness of the determination of the cause in the court below.

Judgment affirmed,


text:
    O’KESON against BARCLAY.
    The compromise of an action of slander, in which the words laid in the declaration were not actionable, is a good consideration for a note for the payment of money.
    ERROR to the Special Court of Mifflin county.

      Nicholas O’Neson brought an action of slander against William Barclay, and his counsel filed a declaration, in which the words, alleged to have been spoken, were not actionable at all. When the suit had been pending for a time, the parties met and compromised it, by Barclay giving his note to O’Kesoji for one hundred dollars; it was upon this note that this suit was brought. The ground of defence in the court below was, that, although the compromise of a doubtful claim, affecting the rights of parties, is always a good consideration, without regard to the question, of who might have the right side of the controversy; yet that is not this case; this was not the compromise of a doubtful claim, for there could have been no doubt about it, that the plaintiff, from his own showing, never could have recovered a farthing. The court being of this opinion so instructed the jury, who found a verdict accordingly.

      Hale for plaintiff in error; and Potter contra.

   Judgment reversed, and venire de novo awarded.


author: Per Ctjriam,

text:
    ROAD case.

    ¡Neither the act of Assembly of 1809, nor that of 1815, authorises the appointment of reviewers, with power to vacate part of a road, which had never been opened and to lay out another in its stead.
    CertiokaRi to the Quarter Sessions of Northumberland county.
    At January sessions, 1S28, a petition was presented to the court, setting forth “that the road from Sunbury, past the Northumber-land Bridge, to the Ferry opposite Danville, was not laid on the best ground: and praying the court to appoint viewers to view, ahd if they see cause to re-lay said road, or to lay out a new road from the said Ferry opposite Danville, to the borough of Sun-bur yd, The viewers, at April sessions, 1828, made,a report of a road, which was confirmed. A part of the road thus laid out, which ran through Grant’s farm, had never been opened. At April sessions, 1830, a petition was presented to the court, setting forth that the above mentioned road had been laid, and “a part of which had been opened: your petitioners are of opinion that the said road may be laid upon other and better ground, more advantageous to the public generally, and with less injury to private property. They, therefore, pray the court to appoint six disinterested persons as viewers, to re-view the said road; and should they deem it advisable, to vacate so much of the said road now laid out, as may be altered or supplied.” There were but four of the signers to the first petition, who were not either dead or removed from the county, when the last petition was presented; and three of the four signed it.
    The reviewers made a report at August sessions, 1830, vacating that part of the road which' ran through Grant’s farm, and which had never been opened. Exceptions were filed to this report, upon which the court below set it aside. This certiorari was then taken out by the petitioners for the review.

      Grier, in support of the exception, argued that this proceeding by the petitioners, was neither under the act of Assembly of 1815,, nor that of 1829; and that the court should not have appointed reviewers to vacate part of a road, which had never been opened, and to locate another in its stea'd.

      Packer, contra.

   Per Ctjriam,

the report could not be sustained on the act of 18X5, which gives the viewers power to vacate the whole route, without giving them power to change the location in whole or in part. Nor could it be sustained on the act of 1809, which does give such a power, but only in relation to old roads completely opened; because the original road had been opened but in part. Had the inconvenience from opening it, been actually incurred, we should probably have heard nothing' of the present attempt by the owner of the soil to carry the road over a hill, to the detriment of the public, instead of permitting it to remain according to its present location, on the lev.el bank of the river. The report was, therefore, properly set aside.

Huston, J. dissented.

Proceedings affirmed.


author: KenNedv, J.

text:
    HAGGERTY against FAGAN.
    A, by arteles of agreement, sold to B a tract of land, containing a certain number of acres and perches, and subsequently executed a deed of conveyance therefor, and received B’s notes, anc^ a mortgage, to secure the payment of the purchase money; upon a suit brought upon these notes, it was held, thatB could not avail himself, as matter of defence, that there was a deficiency of eleven acres, and one hundred and twenty-three perches, in the quantity of the land conveyed. The articles of agreement, were merged in the deed.
    Writ of error to the Common Pleas of Centre county.
    This was an action of debt upon three single bills, due 1st August, 1820-’l and ’2, brought by Harman Fagan, for theuse of George Wilson against Joseph Haggerty. The defendant to support his plea of payment, with leave, &c.,gave in evidence, articles of agreement between him and Fagan, dated the 13th December, 1811, by which Fagan agreed to sell to Haggerty “the plantation on which he lives, containing one hundred and seventy-one acres, twenty-eight perches, for the consideration of $24 50 per acre.” A short time before this contract was made, a partition line was run between Fagan and Spencer, who before that, were owners of a large tract. A draft was then made of the partition, by which it appeared that the part allotted to Fagan contained one hundred and seventy-one acres, twenty-eight perches. On the 21st July, 1812, deeds of partition were executed, and delivered by Fagan and Spencer respectively to each other; and on the same day Fa-gan executed a deed to TIaggerty for the land sold to him, to wit; one hundred and seventy-one acres, twenty-eight perches; and Haggerty executed the notes, upon which this suit was brought, and a mortgage to Fagan, of the land conveyed, to secure their payment. In 1828, Haggerty procured a survey to be made of the land by which it appeared, that the partition line between him and Spencer, as marked upon the ground, did not correspond with the draft, with the deeds of partition between Fagan and Spencer, or the deed from Fagan to Haggerty, and that there was really but one hundred and fifty-seven acres, fifty-seven perches, in the tract sold by Fagan; so that there was a deficiency of eleven acres, one hundred and twenty-three perches.
    The court below (Burnside president) was of opinion that the defendant could not avail himself of the facts given in evidence, as matter of defence, and so instructed the jury, who found a verdict accordingly.
    In this court the following errors were assigned:
    1. The cofirt erred in instructing the jury, that the defendant could be allowed no deduction on his notes, for the deficiency of eleven acres and one hundred and twenty-three perches of land, in the tract bought by him of the plaintiff.
    2. In instructing the jury, that the acceptance of the deed and giving the mortgage, precluded all inquiry as to the deficiency of the quantity of land agreed to be conveyed by the article of agreement, to the defendant.
    3. In instructing the jury, that although both parties were mistaken, as to the quantity of land conveyed by deed to Haggerty, and that this mistake arose in the deed of partition between Fagan and Spencer, yet no deduction could be made for the deficiency of land in consequence of such mistake.
    The reporter was not present at the argument of this cause.

      Blanchard for plaintiff in error.

      Potter for defendant in error.
   The opinion of the court was delivered by

KenNedv, J.

—The first and second errors assigned are substan-hally the same, and relate to that part of the Judge’s charge in the eoui’t below, in which he told the jury, that the law was against the defendant, that is, the plaintiff in error; inasmuch as he had closed the articles of agreement, by accepting a deed of conveyance, and giving his bonds and mortgage for the payment of the balance of the purchase money. The rule laid down by the Judge, appears to be pretty well established, not only by the case of M’Dowell v. Cooper, in 14 Serg. & Rawle, 296, to which he referred, but in many others. Judge Duncan, who delivered the opinion of the court in M’Dowell v. Cooper, says, page 299, “The articles had •discharged their office when the conveyance was accepted, arid the bonds and mortgage given. There being no warranty as to quantity in the deed, the quantity would be matter of description, not a covenant, that the described land should contain the exact quantity to one acre, or to eight acres, in a conveyance of four hundred acres. I do not speak of a deficiency to a great amount, entering from its magnitude, into the very heart and essence of the contract. ” Near the foot of the same page, he says: “There was error in the court leaving it to the jury, to decide whether there was any thing, any fact in the cause trying, to make it an exception from the general rule of law, that the conveyance and bonds conclude the parties; because there was no evidence of any fact, which could vary it from the common case, of the execution of the articles, by accepting a conveyance, and giving bonds and mortgage; any thing which would leave the articles in full force, and thereby entitle the purchaser in an action on the bonds, to an allowance for these eight acres, to be deducted from the bond, in the same manner as he might in a suit on the articles.’’ In the case of Smith and Evans, 6 Bin. 102, where by the agreement, the sale was of4‘three tracts of land, containing nine hundred ninety-one acres and a quarter and allowance, at twelve shillings and six pence per acre,” and afterwards part of the purchase money having been paid the plaintiff, who was the seller, made a conveyance to the purchaser describing the lands by courses and distances, and as containing the same quantity and allowance, be the same more or less, and the purchaser gave his bonds and mortgage on the same lands, for the payment of the balance of the prirchase money. Upon a survey made twelve years afterwards, the tracts were ascertain-tained to fall short eighty eight acres and forty eight perches; yet it was held, that the defendant was not entitled to any deduction from his borids, on account of the deficiency. Chief Justice Tilghman in this case, in page 107, in delivering his opinion, says: “By accepting the deed and executing the mortgage, it appears to me, that the agreement, so far as concerned the quantity, was closed, both parties consenting to estimate it at 991$ acres. Had there been a surplus, it is not pretended that Evans was to have received any thing for it. ” Again the same Chief Justice, in delivering the opinion of the court in Croiser and Russell, 9 Serg. & Rawle, in page 80, says: “The deed of conveyance is the consummation of the agreement and shall be taken for the ultimate intent of the parties, and prevail over the articles.” In M'Clelland v. Creswall, 13 Serg. & Rawle, 143, the vendee by the articles of agreement, covenanted to pay sixteen dollars for each and every acre, of the tract therein described, as containing four hundred and twenty-nine acres and seventy-nine perches, with allowance. The conveyance was taken for the same number of acres, as set forth in the articles. The land however, was measured afterwards, and found to contain but four hundred and twenty acres, one hundred and thirty-seven perches. It was held, that the purchaser could claim no deduction from his bond given for the purchase inoney on account of this deficiency, and Justice Duncan, who delivered the opinion of the court, said: “I would consider the acceptance of the conveyance, and the patent and giving the bonds as an agreement on both sides, to abide by the estimated quantity in the official survey and patent, be the same more or less, and would not open the contract for future strife where the difference was so small as would be found on the re-survey of very many official surveys and returns.” And in Bailey v. Snyder, 13 Serg. & Rawle, page 162,, where Chief Justice Tilghvian considered the agreement for the sale of the land, as one'made at twenty dollars per acre, no gross sum being mentioned, nor definite boundaries given of the land, yet he applies the same general rule to such a case as that was, when the contract appeared to have been closed, by taking a deed of conveyance, and giving bonds for the purchase money; fixing the amount according to the estimated quantity, without any re-survey oryresorvation, to have the sum changed upon the real quantity of land, being ascertained to be different from the estimated quantity. He uses the following words: “When the articles of agreement have been carried into effect, by a conveyance from the vendor and bonds for the purchase money from the vendee, without a survey, then in general the contract is considered as closed. And it is fair, and very much for the public good, that it should be so considered; otherwise there would be no end to controversy. I say this is the general rule, but there may be extreme cases, which must be excepted; cases for instance, in which the real differs so much from the estimated quantity of land, as to make it evidence that both parties are under a misapprehension, or one of them guilty of a gross fraud.” And Dancan Justice in delivering the opinion of the court, in Frederick v. Campbell, 13 Serg. & Rawle, page 141, says, “I do not think in a common case, when the vendor could not recover for the excess, that the vendee is entitled to an allowance for the deficiency. For in that case, though the sale were even by the acre, I would consider the vendee as agreeing to take it by the survey, as fixing the quantity: and where there is no fraud or concealment, that he is not entitled to any deduction.” And after making some observations, he continues: “There might be extreme cases, where a court of chancery would grant relief, evidencing ex natura rei a misapprehension, where the deficiency would be so great as at the first glance, every man must say there must have been, a gross misapprehension or fraud.

The same principle is recognized by the Supreme Court of New York, in Houghtuling v. Lewis, 10 Johns. Rep. 297, where it was decided that the acceptance of a deed, in pursuance of articles of agreement, is to be deemed prima facie evidence of executing the contract, and that the agreement thereby becomes void, so that no action can be maintained on any of its covenants. In the cgse of Twyford v. Wareup, Finch. Rep. 210, the court say, “That the articles were onlya security, and preparatoryto the conveyance, and the defendant having afterwards taken a conveyance, shall not resort to the articles or to any particular, or to averment or communication afterwards; for such things shall never be admitted against the deed.” In Stebbins v. Eddy, 4 Mason’s C. C. Rep. 414, the parties entered into a written contract,, whereby the de-fendant sold to the plaintiff a farm, and agreed to execute a deed 'for the same, in six weeks; the plaintiff agreed to pay for the same, at the rate of fifty dollars per acre, and a survey thereof was to be made, to have the quantity exactly ascertained. At the time of the contract the defendant affirmed his belief, that the farm contained fifty acres, if not more, and repeated the same at the time of executing the deed of conveyance, which was done afterwards, but without any survey having been made; and the gross sum of two thousand five hundred dollars, was inserted in the deeds as the consideration. These deeds were accepted of by the plaintiff, who paid the whole of the two thousand five hundred dollars. The farm, afterwards, upon a survey being made of it, was found to contain only forty and a half acres, falling short nine and a half acres of the quantity represented by the defendant. The plaintiff brought his bill to obtain compensation for this deficiency, at the rate of fifty dollars per acre. The farm was conveyed by metes and bounds, and the boundaries of it were known to both parties. The defendant denied the fraud and misrepresentation charged in the bill; and admitted that he had at the time of the original contract, as well as at the time of executing the deed of conveyance, represented to the plaintiff, that the farm contained in his belief, fifty acres and upwards, which was really his belief, but “that at the time of the final negotiation, the original' contract of sale at a specific sUm per acre was rescinded, and that the bargain was com-* pleted at the gross sum of two thousand five hundred dollars.’’ Of this however, there was no evidence besides the allegation of the defendant, except the execution of the deeds of Conveyance, con- . taining as their consideration, the sum of two thousand five hundred dollars; and the acceptance of them by the plaintiff, without any survey having been made. There was no evidence to show that the defendant knew, or had any reason to believe that the farm did not contain fifty acres, as alleged by him. The plaintiff’s bill was dismissed. Justice Story, who delivered the opinion of the court, after approving highly of the principle already noticed, and laid down by the late Chief Justice of this state in the case of Smith v. Evans, says: “My judgment accordingly, is that the original contract of sale, at fifty dollars by the acre, was so far waived or modified by the parties, that the number of acres did not form the basis of the ultimate conveyance, but the farm was purchased upon an estimate assumed by the parties, and at a gross sum.”

Now, according to the principles laid down in the cases referred to, it is manifest there was no error in that part of the charge of the court, to which the first and second errors have a reference. Indeed I do not consider it, altogether clear and certain from the face of the articles, that the parties ever intended to have any other survey made than the one, which had been made previously, and according to which, the quantity appeared to be one hundred and seventy-one acres, and twenty eight perches. As they made none afterwards, it might perhaps be inferred, that they did not intend it at any time. In the nature of the thing itself, it cannot well be otherwise, than that every man in selling as well as in buying land, if it be of value for agricultural purposes, must have some regard to the quantity, and from his estimate of the quantity, he will be'governed as to the price he will take or give, whether it be named as a gross sum or so much per acre. A survey of the land, had been made, before the articles of agreement were entered into, and the land itself therein described byrnetesand bounds shewing, that a survey had been made; and no provision made for a future survey, and these parties afterwards, without making any such survey, and without any reservation that we know of, consummated their agreement by Haggerty’s taking a deed from Fagan, setting forth the same quantity in the deed as mentioned in the articles, and describing the land by metes and bounds; and by giving his bonds and a mortgage, for the payment of the balance of the purchase money, which was computed according to the quantity mentioned in the articles, and in the deed. This is a practical construction, put by the parties themselves on the articles of agreement, which goes far to ¡show, that they intended originally by it, to take the quantity and price per acre, therein mentioned as the data for ascertaining the gross sum that was to be paid for the land. “By the acceptance of the conveyance, the parties put their construction on it, (meaning the agreement,) says Judge Duncan in Fredrick v. Campbell, 4 Serg. & Reticle, 140. Every thing.seems to have been perfectly fair and honest, as well in making the contract as in executing it. Fraud is not alleged or pretended. The difference between the real and estimated quantity of land, is not such as for a moment to suggest such an idea as fraud; nor yet to exclude the idea, that the parties did not agree to take their chance of the whole quantity, being more or less than the ascertained difference. Nor can it be said, that the difference is “so great as at the first glance every man must say, there must have been a gross misapprehension*” Haggerty rested well satisfied, for eleven years after he received his deed of conveyance, and his bonds having become payable during the interim, he paid interest upon them up to 1823, without any objection. It is clear under the circumstances of this case, that if it had turned out that there was an excess. of eleven or twelve acres, instead of a deficiency, the plaintiff in error could not have been compelled to pay for it: and if so, he can have no claim to the deduction claimed: for if there be an obligation or right in this particular, it must' be reciprocal and mutual.

There is nothing in the third error. It is difficult to conceive Upon What principle the judge below should have instructed the jury, as the defendant’s counsel there requested, that if they believed, that the deficiency had arisen from the error and mistake of the surveyor, in making the partition between Fagan and Somers, and that Spencer had thereby got eleven acres, and one hundred and twenty-three perches more than he ought to have had, they ought to make a deduction for it from the amount of the defendant’s bond. I am altogether at a loss to see how this could change the nature and operation of the agreement and execution of it between these parties. Neither can the ignorance of the parties as to this mistake of the surveyor, give any right to the deduction claimed, but seems rather to be a reason why it should not be allowed, because it is clear evidence of Fagan’s honesty in the sale of the land to the plaintiff in error; and as he has succeeded to all Fagan’s right to the land which was held at one time jointly by Fagan and Somers, if it be not too late, he might possibly claim to have this error corrected. with Somers. At all events, it appears to me that Fagan has no right now to claim a correction of it, having parted with all his right to Haggerty.

These remarks will apply to the fourth and last error. There W'as surely no error in thre judge saying as he did to the'jury with ' respect to these two last points, which are closely allied to each other, that taking the deed of conveyance, and giving his bond and mortgage for the payment of the balance of the purchase money, and suffering eleven years to pass by without any objection, paying interest on the bonds and procuring indulgence from the holder of them, it was too late to have the whole original matter can-.-vassed, and the error corrected.

The judgment must be affirmed,.


author: HustoN, J.

text:
    JONES against ROCKEYFELLER.
    ’J’be act of Assembly of the 2Sth ¡March, 1814, directs the Pay-master to keep an account of moneys received and paid by him, and to pay over any balance which may remain in his hands, to such personas the Brigade Inspector shall direct: Held, that the Brigade inspector may, himself, sustain an action for the balance against the Pay-master, and the book of accounts kept by him, is evidence of such balance.
    Error to Northumberland county.
    This was an action on the case brought by John Jones, a Bri-. gade Inspector, against Jacob Hockey feller, Pay-master: upon the trial of which, the plaintiff offered in evidence, a book of accounts between Jacob Hockey feller Pay-master, and the Brigade Inspector, and which, it was admitted, was in the hand writing of the defendant. This evidence was objected to, mainly, upon the ground, that the plaintiff had not first shown, that he had accounted to the government for this money, which he had given to the Pay-master; and it being public money, the Pay-master was accountable to the State for it, but not to the plaintiff. On the other side it was contended, that the act of 28lh March, 1811, Sec. 18 Ham. Latos, 333, enjoined it as a duty incumbent upon the Paymaster, to keep a book of accounts; and “to account to such person, as the Brigade Inspector shall direct,” for any balance which may remain in his hai\ds: and that the book thus kept, was the one offered in evidence.
    The Court over-ruled the evidence, and sealed a bill of exceptions; and the same question was here argued by:

      Bellas, for plaintiff in error,

      Oveenottgh, for defendant in error.
   The opinion of the Court was delivered by

HustoN, J.

In the book offered in evidence, and in the recepts» Eockeyfeller states that the moneys were received by him as Paymaster, from Jones as Brigade Inspector. The act of 28th March, 1814, § XVIII, among other things, states that when militia are prepared to march to the place of rendezvous, for actual service, the Brigade Inspector shall advance money, to supply such detachments on their march, to the Pay-master, who shall keep an exact account of his expenditures, and pay-over the balance as the Brigade Inspector shall direct. — The account directed, was kept in the book offered in evidence, which is all in the hand writing of the defendant — and it shows a balance of money in his hands.

But it is contended, that the Brigade Inspector must give an order to some other person, to receive this money, that he can not direct it to be paid to himself; — can not sue for and recover it:— thatthe Commonwealth could sue and therefore the Brigade Inspector can not; and that the Brigade Inspector must show that he has settled with the Commonwealth, and paid over this money, or that he can not recover it.

The duties of aBrigade Inspector are very various; he has bylaw to collect much money, and to expend much, and must account for all received. He gives bond with sureties to do so; nay, he must account for what he was bound to collect, or could have collected and neglected to collect. Whether, if he is insolvent as well as his sureties, and it should appear that money which he ought to have collected, may still be received, the Commonwealth can sue for and recover it, need not be inquired into. — It is enough that by the law he is bound to collect it: — to apply much of what he collects in current expenses, and that it is not contemplated by any law, that he shall pay money out of his own funds: — and that he is to account with the Auditor General and State Treasurer at the seat of Government, once in each year; and is not bound to settle his account before the present defendant or the court of any county in the State; neither the Common Pleas of the county, nor the different persons from whom he is to collect money, have any power or any means of settling his accounts, nor are they appointed to see that his proceedings are closed annually. It would stop the whole of his duties, disable him to act in every case, if what was. asked here should be sanctioned. The law has directed that he shall collect money and apply it, and after taking surety from him., intrusts him to do so; and also directs when and how he shall Settle. That he cannot order- the money to be paid to himself, .and sue for it, does not require a serious answer.

The act expressly empowers Jones to collect moneys, and this among others, and makes him and his sureties liable for his neglect, as well as for his not paying over what he has collected. The book was in/ever.y point of view evidence.

Judgment reversed and venire de novo awarded.