text:
    Shuff v. Morgan.
    Under the act of 1845, plaintiff is not entitled to a per diem allowance on appeal from an award before a justice of tíre peace.
    A recognisance on appeal from an award conditioned to pay costs, “ with $1 per day for each and every day that shall be lost by the defendant in attending to such appeal,” is void under the act of 1845, for the per diem allowance is not there mentioned, and the act of 1S3C is thereby supplied.
    In error from the Common Pleas of Fayette.

      Nov. 2. The defendant appealed from a judgment of a justice in trover. The cause was arbitrated, under a rule of court, and in August, 1845, an award for defendant. A recognisance was then entered into by One Stemm, conditioned, in the event of a judgment for defendant, that plaintiff would pay all costs, «with. one dollar for each and every day that shall be lost by said defendant in attending to such appeal.” The cause was again arbitrated, by agreement, and award for defendant.
    The court allowed plaintiff “ $9 for his daily pay,” in his bill of costs, which the prothonotary had disallowed, for which judgment was entered. Whereupon this writ of error was sued out.
    (Note. — The plaintiff did not join in the recognisance, nor was there any action taken upon it, so far as appeared from the paper book.)

      Patterson, for plaintiff in error.

      Deford, contra.

      Nov. 9.
   Per Curiam.

The recognisance in this case was framed on the 80th section of the act of the 16th June, 1836 ; and it is void, because that section, being superseded by the first section of the act of the 20th March, 1845, was not in force during the pendency of this action. The latter section provides that in lieu of the bail theretofore required on appeals from judgments of justices and awards of arbitrators, the bail shall be absolute in double the probable amount of costs, accrued or likely to accrue, with one or more sureties, “ conditioned for the payment of all costs, accrued, or that may be legally recovered in such cases against the appellants.” Not a word in this about payment of a daily allowance for prosecuting or defending the suit. ' In order to obtain his appeal, the plaintiff was driven to harder terms than the law allowed to be exacted, and the recognisance was void.

Order of the court reversed, and taxation of the prothonotary affirmed.


source: Caselaw Access Project

author: Coulter, J.

license: Public Domain

text:
    Wilson v. Jamieson.
    Unless an objection to the filing of an amended nan. appears on the record, consent will be presumed.
    After an award for defendant, plaintiff may amend his nan.by correctly describing the note sued on.
    An addition to a promissory note, if afterwards assented by the drawer, is immaterial.
    Semble, judgment will not be reversed because evidence is admitted in rebuttal which might have been given in chief.
    In error from the Common Pleas of Payette.

      Nov. 2. Assumpsit on a note made 9th of October, 1840, by the defendant. The note offered in evidence was signed by “ Fos- ’ ter, Nixon & Co., and John Wilson.” On objection taken to the evidence, the plaintiff amended his narr. by describing the note as signed by Foster, Nixon & Co., and the same day by defendant as their security. There had been an award for defendant. The note was again objected to, but no reason assigned.
    The defendant then proved that the words “ attest this 9th of October, 1846,” at the end of the note, had been inserted at Foster’s request by the plaintiff, after its execution.
    The plaintiff then proved defendant had admitted his liability on the note, after Foster’s death.
    The amendment of the narr., the admission of the note and of the “ testimony offered in the order of rebutting,” were the errors assigned.

      Davidson and Veech, for plaintiff in error.
    After an appeal from an award against the plaintiff, the amendment of the narr. was improper: Reitzel v. Franklin, 5 Watts & Serg. 33; Winder v. Northampton Bank, 2 Barr, 446; Tryon v. Miller, 1 Whart. 11. The declaration entirely changed the cause of action, and the note was not evidence under the original narr., which was on a several note, while this was joint.

      Howell, contra.
    The rule contended for only applies where sureties are interested; and besides, there is no exception, and the rule in relation to exceptions to evidence should apply here: Powell v. Sedgwick, 5 Whart. 336; Drexel v. Man, 6 Watts & Serg. 345. Amendment was in all other respects proper: 15 Serg. & Rawle, 82; 4 Watts & Serg. 143; 1 Rawle, 149; 4 Barr, 242.

      Nov. 10.
   Coulter, J.

It does not appear from the record that the defendant below made any objection, or took any exception, to filing the new narr. Now, although it may not be necessary to tender a bill of exceptions in form, yet it would seem reasonable and sensible that some evidence ought to be furnished by the record, that it was not done with consent of defendant. When no objection appears, the most natural inference is, that it was done with the assent or silent acquiescence of the party; and the old rule is that silence gives consent. If we were to adopt the contrary conclusion, that which transpired in the court below, and to which there was no objection, might afterwards, contrary to all propriety, be made the ground of reversal here. But the amendment did the plaintiff in error no harm — made his position no worse than the old narr., nor exposed him to any greater peril than beset him before the new one was filed.

The note might have been received in evidence under the old narr. as the pleadings stood. This is a sufficient answer to the error assigned, that no amendment altering the ground of action, so as to require from the defendant a different defence, ought to be permitted, after award under the compulsory arbitration act. Because, in fact, the new narr. was nothing more than varying the description of the same note. The entry is, the plaintiff asked leave to amend by describing the note properly, which is granted. The mere forms and trimmings were more suitably adjusted, but the old garment was there and the same.

As to the second error assigned, I merely state that the note was properly admitted in evidence; it was duly proved by the subscribing witnesses, and I cannot perceive any possible reason why it ought to have been excluded from the jury. It was their province to determine whether the words of addition, as alleged by defendant, that is the date, were authorized and adopted by defendant, even if they were not in the note at the time of signature. It was admissible under the new narr., and would have been admissible under the old, according to the pleas of the defendant.

The third error assigned is not of sufficient moment to disturb the judgment. The evidence might be considered as rebutting, for the reason given by the court, viz.: That it conduced to show that the defendant authorized the addition of the date to the note; although at the same time it might be good evidence in chief. This thing of reversing a judgment, merely on account of the order in which evidence otherwise competent is received, has little favour in my judgment.

Judgment affirmed.


author: Gibson, C. J.

text:
    Davidson v. Thornton.
    A tsrre-tenant, although he has paid his purchase-money, cannot object to the revival of a judgment, that it was entered without authority, or by one not a representative of the defendant in an original judgment revived by so. fa. His only defences are subsequent satisfaction, or the plea of nul tiel record, and that will fail if a judgment in form is produced.
    The issuing a sd. fa. to revive against defendant and terre-tenants generally, though on the last day of the five years, continues the lien, if the terre-tenants are served with an alias issued in due time after the five years have elapsed.
    An appearance to a writ returned tarde venit, is null, unless accepted by the plaintiff.

      A sd. fa. in form an original, but endorsed and docketed as an alias, and reciting the original judgment, and referring on the docket to the original sd. fa., is in effect an alias.

    A sd. fa. against defendant and terre-tenants, issued 15th March, 1844, to the first Monday in May, (June Term, 1844,) to revive a judgment entered in August, 1839. The writ was returned tarde venit, but defendant appeared. In September, 1844, a sci. fa. issued against defendant and terre-tenants, in form an original, but endorsed and docketed as an alias, to revive the judgment of 1839, returnable to the first Monday of October, (December Term, 1844,) which was served on the terretenant before the return-day. Held, that the lien was thereby continued.
    In error from tbe Common Pleas of Payette.

      Nov. 2. The question was, whether the land of Davidson, who was served with a soi. fa. as terre-tenant, was bound by the lien of a judgment.
    On the trial it appeared that judgment was entered in 1828 against 0. Jennings. He removed to Tennessee, where he died, in 1832. In 1833 an amicable soi. fa. to revive issued against J. R. Jennings, his executor, on which judgment was confessed. The same was done in 1837. It was then discovered that J. B. Jennings had never proved the will in Payette county, whereupon Beeson took out letters of administration. In 1839 a soi. fa. of September Term, 1839, No. 196, to revive the judgment of 1837, issued against Beeson, as administrator of 0. Jennings, on which judgment was confessed, August 21,1839. On the docket of this suit there was a reference, “ soi. fa. to June Term, 1844, No. 30.” A sci. fa. to revive this last judgment issued against Beeson, with notice to terre-tenants, on the 15th March, 1844, returnable on the first Monday in May — docheted June Term, 1844, No. 30. This was returned tarde venit. There was a reference on the docket, “ al. sci. fa. to December Term, 1844, No. 49.” To this writ Beeson appeared. On the 23d September, 1844, a soi. fa., in form an original, but docketed and endorsed as an alias, December Term, 1844, No. 49, issued, returnable to first Monday of October, against Beeson, administrator, with notice “ to terre-tenants bound by the judgment” of September Term, 1839, No. 196. The docket also referred to June Term, 1844, No. 30. This writ was served on Beeson and the terre-tenant on the 27th September, 1844. Judgment was entered, but opened on the affidavit of the terre-tenant. The question was, whether judgment de terris could be entered against Davidson, who held under a deed dated November 1, 1842, and who, it appeared, had paid the purchase-money to one Simonton, who held under a partition in 1839; it having been supposed that Simonton was entitled to this judgment, but how did not appear.
    Ewing, President, J., having reserved the point, gave judgment for the plaintiff, saying, it does not lie in the mouth of the defendant to deny the official character of J. 11. Jennings. The judgment of 1889 being therefore valid, its lien was continued by the sai. fa. of June, 1844, although not served on the terre-tenant, if duly followed by an alias. This was done by the sci. fa. of December Term. The case of Meason’s Estate was different — the writ there was served, and an alias unnecessary, nor was there any reference from one to the other on the writs or docket. Though there was an appearance by the defendant, there was none by the terre-tenant to the writ of June Term; an alias was therefore necessary. The reference on the dockets, and endorsement on the writ, is sufficient to make this a good alias, though the words, “as before we have commanded you,” are omitted.
    The errors assigned contained the points relied on. 1. The original judgment was void, for the want of a proper party, and was against a party not a representative of the original defendant. 2. That revival by Beeson’s confession was void, for want of authority. (The judgment was entered by him, as prothonotary, under a confession signed by himself personally.) 3. The lien was lost, as against the terre-tenant, having paid his money, by lapse of time, from August 21,1839, to the issuing or service of the writ on terretenant, September 23 or 27. 4. The sci. fa. of December Term was an abandonment of the sci. fa. of June Term, since there had been an appearance there entered, and the lien was therefore lost. 5. There having been an appearance, and the intervention of a term and four return-days, the second sci. fa. could not issue, nor could there be judgment entered. 6. The sci. fa. of December Term was not an alias, but a copy of that of June Term, and both were defective in their recitals and commands, so far as the terre-tenants were concerned.

      Veech, for plaintiff in error.
    The principal question in this case is, whether, as regards the terre-tenant, the judgment had lost its lien. On this he cited, Ulrich v. Voneida, 1 Penna. Rep. 245; Minier v. Saltmarsh, 5 Watts, 299; Brown v. Simpson, 2 Watts, 242; Clippinger v. Miller, 1 Penna. Rep. 71; Lusk v. Davidson, 3 Penna. Rep. 229; Fursht v. Overdeer, 3 Watts & Serg. 470; Westmoreland Bank v. Rainey, 1 Watts, 32; Armstrong’s Appeal, 5 Watts & Serg. 352; Meason’s Estate, 4 Watts, 341; Willett v. Archer, 1 Man. & Ry. 317; Geiger v. Hill, 1 Barr, 509.

      Howell, contra
    Where a judgment has been rendered against a defendant, and it is opened, he will not be allowed to avail himself of any technical difficulty: Ekel v. Snevily, 3 Watts & Serg. 272; Pennock v. Hart, 8 Serg. & Rawle, 369; Chahoon v. Hollenback, 16 Serg. & Rawle, 432.

      Nov. 9.
   Gibson, C. J.

That no defence can be taken to a scire facias post annum et diem, but subsequent satisfaction of it, or a denial of its existence by the plea of nul tiel record, and that under no circumstances can the original merits be overhauled, was decided in Curdesa v. Humes, 6 Serg. & Rawle, 68; and for the same reason, no exception can be taken to the validity of a judgment, sought to be revived either for the purpose of execution or of lien, if it stand in substance and in form on the record as a judgment of the court. Prom the time of Lewis v. Smith, 2 Serg. & Rawle, 142, to the present day, it has been constantly held, with two exceptions when the court were divided, that an erroneous judgment is valid between the parties and those claiming under them, till it be set aside on motion, or reversed on writ of error. If the defendant deny the judgment, he fails, if a judgment in form is produced; and he will not be heard, if he attempt to show that it ought not to have been rendered. We cannot therefore inquire whether Beeson, who confessed the judgment in question, was the proper representative of the original defendant, or whether he had a special authority to confess it. Defects from this cause, if they existed, might have been fatal to the judgment on motion, or perhaps in a court of error; but if the parties to it do not choose to take advantage of them, what is that to a terre-tenant who paid for the land at its estimated value, as encumbered ? In Hauer’s Appeal, 5 Watts & Serg. 473, where the principle was particularly considered, it was held, that a judgment confessed in a district court, on a warrant to confess in a court of common pleas, and which was consequently entered without the semblance of any authority, could not be set aside, directly or collaterally, at the instance of a subsequent judgment creditor; and a terre-tenant, who, like him, came in under the defendant, stands in the same predicament. Even a collusive judgment, though a nullity as to creditors, is conclusive between the parties to it; and a terre-tenant claiming by conveyance from the defendant, stands on no higher ground. This disposes of the first two exceptions.

The judgment sought to be revived, as to its lien, was rendered on the 31st of August, 1839; and the regularity of the previous revivals is not disputed. Within the five years, but without naming a terre-tenant, a scire facias, to further prolong the lien, was issued to June Term, 1844, and returned tarde venit, but to which Beeson, the administrator of the original defendant, entered an appearance, which the plaintiff disregarded, and issued another scire facias after the five years had expired, as well as after the lapse of a term, in which the issue and return of the preceding writ was not recited. The latter was issued to the December Term of the same year; and to these proceedings the following exceptions are taken.

First, it is said that, as the terre-tenant was not named in the writ or the return of it, he had no notice that he was to be \ffected; and that, having been returned without service, and consequently without naming him, the subsequent process would not connect him with it, or be carried back by an alias to the day of its inception. We must remember, however, that we have to deal with a statute of limitations, and that if the originating process issued a single day within the time, it saves the bar, whether the party to be affected have notice of it or not; and that the plaintiff is not chargeable with the sheriff’s inability to serve it in time to have an appearance or judgment at the ensuing term. And how is a terre-tenant prejudiced by want of notice at the return of an exploded writ, provided it be given him in time to plead and prepare for trial ? The plaintiff has the whole period allowed by the statute to begin, during which he may be absolutely supine; and he is not bound to issue his writ so far within it as to insure service before it expires, or even before the ensuing return-day. If he commence his proceeding at any day within the period, he will have done enough. A plaintiff may bring his action of assumpsit on the last day of the six years, though it be the last day preceding the term, when service is out of the question; and why should not the same rule be applied to a scire facias when the law does not require judgment of revival, as well as the commencement of the proceeding, to be within the five years ? It is not contended that it would have been inapplicable to the proceeding in this case, had the terre-tenant been named in the writ for the purpose of connecting-him with it by the alias; but he is sufficiently connected with it when he is named in the alias or the return to it, because the alias stands in the place, of its predecessor, and fulfils every purpose intended to be accomplished by it. The better practice is not to name the terre-tenant in the writ, but to direct the sheriff to name him in the return; and the plaintiff, having thus proceeded, is in no default; consequently, if the officer was remiss in his duty, he alone was responsible for it. But, to whom? Not to the terre-tenant, who is in no worse condition than if he had been served.

Again, it is objected that, as Beeson, the defendant, actually appeared to the unexecuted writ, there could be no second one. But he appeared after it had been returned tarde, and consequently when there was nothing to appear to. Had he agreed to waive the service while the writ was in the sheriff’s hands, it would have been an agreement to appear at the return of it, which the court would enforce, protecting him from the unnecessary costs of another, and a superfluous, writ. But after the first writ was spent and gone, the plaintiff was not bound to accept an appearance to it, which might subject him to additional costs, if he did not wish to proceed further. The writ was dead till it was revived, and that could be done only by the act of the plaintiff accepting an appearance to it, or issuing an alias to continue it. If the defendant could appear a single day after the return-day, he could appear at any indefinite time after it. But had the plaintiff accepted his appearance at a subsequent day, it would have been regular; not, however, by force of the appearance alone, but by the consent of both parties to proceed on the old writ. He was at liberty, therefore, to withhold his consent, and to proceed as if the defendant’s appearance had not been entered.

Further, it is said that the second scire facias, being a transcript of the first, was not an alias, but itself an original. According to the forms of the common law, an alias writ, whether mesne or judicial, is required to recite the mandate of, and return to, its predecessor, as the basis of further proceedings; and those forms were strictly followed in Pennsylvania, till the popular principle of rotation had driven every thing like experience- and skill from the offices of the prothonotaries and clerks. Since then, the practice of making every writ a transcript of the preceding one, and of putting every execution into the same form, whether the money to be made were recovered as a debt or as damages, has become universal. The courts have been compelled to give way to these and many other irregularities, which it became impossible to prevent; and they do not now require that a proceeding like the present should appear to be consistent in its parts. To the eye, a series of writs like the present appear incongruous, anomalous, and disjointed; but we hold it to be enough that they are in truth used to continue an original, A scire facias to revive a judgment post annum et diem, is a proceeding to execution; and though a scire facias to prolong the lien of one is not strictly so, it is subject to the same rules. There was then an alias scire facias to continue the preceding one; but it is objected that it was issued after the intervention of a term.

On the ground of precedent, the objection is disposed of by Pennock v. Hart, 8 Serg. & Rawle, 380. But it is said, with plausibility, that if the intervention of a single term were tolerated, any number might be tolerated; and that a plaintiff would have no more to do, in order to perpetuate his lien, than to have a scire facias returned without service, and let it remain dormant till it should please him to awaken it by an alias, and thus cut out intermediate encumbrances. The answer is found in Vitry v. Dauci, 3 Rawle, 9, in which it is ruled that a scire facias is abandoned, if it be not prosecuted within a year and a day. To the same effect are the decisions of the English courts: and the principle extracted from them is equally applicable to cases like the present.

It is doubtful whether this statute has done more good than harm. It has, doubtless, prevented injustice to purchasers; but it has borne hard on judgment creditors, who have lost their security for some technical irregularity in it. It is certainly not so decisively beneficial as to be an object of particular favour; and we ought not to strain it to defeat the plaintiff in a case like the present. We are therefore of opinion that the proceedings before us are sufficiently regular; and that the requirements of the act are substantially complied with.

Judgment affirmed.


author: Per Curiam.

text:
    Scott v. Barnes.
    A reference of all matters in controversy is confined to the particular claims recited in the agreement, and does not authorize an award of a sum in favour of the defendants, there being no cross-demand mentioned in the agreement for a reference.
    An action on an award may be brought before a justice.
    In error from the Common Pleas of Green.

      Nov. 3. Debt on award, and case stated. Barnes as executor of Scott, and David Scott, sealed an agreement as follows: “Whereas David Scott has claims against his father’s estate for moneys paid for him, for labour done, for property sold to him, &c. Now we, the parties hereto, desirous of closing the matter with as little hard feeling and expense as possible, hereby agree to refer all matters in controversy to, &c., whose decision, or that of a majority of them, to be a final award between the parties — each party reserving all legal points.”

      The referees awarded $21 26 to defendants, with costs. An action was brought on this award before a justice, and judgment given for $47 48, debt and costs awarded. On appeal, the pleas were « cor am non judice ; that the arbitrators exceeded their authority ; no award, and nil debet.”

    These facts were then submitted as a case stated, and judgment given for the plaintiff for the amount recovered before the justice. That the arbitrators had no authority to award for defendant; the justice had no jurisdiction, and that costs could not be recovered, since their amount had not been stated by the arbitrators, were the errors assigned.
    Beech, for plaintiff in error,
    on the first point cited Hewitt v. Furman, 16 Serg. & Rawle, 135. On the last point, he argued that an award, being in the nature of a judgment, (Rank v. Hill, 2 Watts & Serg. 56,) and the justice having no jurisdiction in actions on judgments, (Eason v. Smith, 8 Serg. & Rawle, 343; Wilson v. Long, 12 Serg. & Rawle, 58,) even though recovered before a justice in another state, (Ellsworth v. Barstow, 7 Watts, 314,) the judgment appealed from was coram non judice. On the question of costs, he cited Buckley v. Ellmaker, 13 Serg. & Rawle, 71.

      Howell, contra,
    contended that, under Hewitt v. Furman, ut sup., the submission covered all matters in controversy. On the question of jurisdiction, he cited Weidimor v. Drissel, 1 Yeates, 77; Grace v. Sutton, 5 Watts, 540; Harris v. Hayes, 6 Binn. 422.

      Nov. 9.
   Per Curiam.

The words “ all matters in controversy” would extend to mutual demands if they stood alone; but, as they must be understood as referring to the subject matter expressed by the parties themselves, they are restrained by the context. They introduce the submission by reciting that “David Scott has claims against his father’s estate,” without saying a.word about counter-claims ; and proceed by.saying, that, being desirous of “ closing the matter with as little hard feeling and expense as possible, they hereby agree to refer all matters in controversy” to arbitrators. What matter? Expressly the matter of the son’s claim, and no other. Had it been pretended that the executor had a cross-demand, it would surely have been inserted as distinct matter of adjudication. By the terms of the submission, therefore, it appears that the matters in controversy were understood to be the claims of the son, and the award is consequently broader than the submission. The objection to the jurisdiction of the justice, however, is unfounded.

Judgment reversed.


author: Rogers, J.

text:
    Show v. Conway.
    An executor or administrator, plaintiff, is personally liable to defendants for costs.
    In error from the Common Pleas of Fayette.

      Nov. 3. Show, administrator of Conway, brought an action against Conway et al.; but in what form or on what grounds did not appear. Defendants having recovered judgment, took a rule on plaintiff to pay costs, and read certain depositions on the hearing. From these it appeared that plaintiff had offered to receive part of the debt and return the estate insolvent, and it might be inferred that defendants were sons of the intestate, and had refused to administer to the estate. It also appeared that, on defendants’ refusing to pay any thing, Show said he would make the suit cost more than the claim, whether he gained or lost. The defendants’ bill was $82 44. The rule was made absolute.

      Howell, for plaintiff in error. — Administrators are not liable for the party’s costs: Musser v. Good, 11 Serg. & Rawle, 248.

      J. S. Austin, contrá.
    A writ of error does not lie : Renninger v. Thompson, 6 Serg. & Rawle, 1. Rut the order is supported by Muntorf v. Muntorf, 2 Rawle, 180; Penrose v. Pawling, 8 Watts & Serg. 379; Hartzell v. Brown, 5 Binn. 138; Geddis’s Appeal, 9 Watts, 284.

      Nov. 9.
   Rogers, J.

Muntorf v. Muntorf, 2 Rawle, 180, recognised in Penrose v. Pawling, 8 Watts & Serg. 380, definitively settles that, in this state, an administrator or executor, who fails in an unjust claim, is bound to pay costs as well when he sues in his representative character, as where the cause of action arises after the death of the testator. The decision is founded on principles of justice, for no valid reason can be given which forbids the recovery of costs where the defendant has been harassed with an unfounded claim. It is nothing to him who is compelled to pay it, whether it comes out of the pocket of the administrator or from the assets of the estate ; nor has the administrator the least reason to complain, for, when he acts bona fide, he is at liberty to charge the costs to the estate, to be first paid out of the assets as part of the expenses of the settlement; but, when otherwise, it is but right it should be paid out of his own pocket. This case illustrates the propriety of the rule. Show, the administrator formally, was the owner of the debt in suit. He purchased it, as it appears, on speculation, and after-wards takes out letters of administration, by virtue of which the suit is brought. He attempts to coerce payment of an unjust claim by threats of the costs to which the defendant would be exposed in resisting the demand, and now he seeks to realize his threats by throwing the costs on the defendants, or turning them round to an. estate which is, and was at the time letters were granted, notoriously insolvent. It would, in my judgment, be an outrage on every principle of right to refuse to allow the defendants to levy their costs from the administrator de bonis propriis.

Decree of the court affirmed.


text:
    Lockhart v. John.
    The want of security required by act of Assembly for a due application of the proceeds from, an administrator making sale under decree of the Orphans’ Court, for payment of debts and maintenance, does not affect the validity of such sale after confirmation.
    The act is directory in this particular, but it should be cautiously observed.
    The court cannot set aside a sale five years after confirmation, and a decree to that effect is a nullity.
    Decrees of the Orphans’ Court only examinable collaterally for fraud, or when want of jurisdiction is apparent on the record.
    In error from the Common Pleas of Greene.

      Nov. 3. Ejectment by Lockhart. The defendant’s title was a petition by the administrators of one Latimer, praying a sale for payment of debts and maintenance of children, with a schedule of debts and assets annexed. In September, 183T, a decree for a sale was made. In November the administrators reported a sale to John, the defendant — one-half cash, balance in two annual payments, secured by bond and mortgage. This sale was confirmed, and a deed made in 1838, pursuant to the decree. But whether the purchase-money had been paid and the securities given, did not appear from the record. ,
    In June, 1844, a petition was presented setting forth that the administrators of Latimer had removed from the state, and had no place of residence therein for more than one year past. On citation, &e., the letters were vacated in default of entering security. And “on motion, the court set aside the sale.”
    The new administrator then petitioned for a sale for payment of debts, which was ordered and made, security entered, and deed delivered to Lockhart, the present plaintiff, on payment of the purchase-money.
    The court refused to charge that the first sale was void for want of security by the administrators, saying the court had jurisdiction under the act, and though the directions had not been complied with, for which the decree might ha,ve been reversed, or the sale set aside before confirmation, it was not void after confirmation.
    This was the only error assigned.
    Veech, for plaintiff in error.
    Under the old system, the requirement of security was discretionary; but under the act of 1832, ss. 33,47, it is now imperative, and not having been complied with, no title passed. The same principle is applied by the act of 1834, s. 43, the object being the security of the heirs, &c.

      Sayers, contra,
    in support of the view taken by the court below, cited McPherson v. Cunliff, 11 Serg. & Rawle, 422; Snyder v. Markel, 8 Watts, 418.

      Nov. 6.
   Coulter, J.

The court below certainly did not exercise sufficient vigilance over the first sale by the administrator. Before confirmation of the sale, they ought to have required him to give bond with approved security that he would faithfully apply the proceeds according to law. Their not doing so, however, was an error in the exercise of their discretion, which we cannot rectify. The 33d section of the 29th March, 1832, provides that no order of sale shall be granted by the court for the payment of debts, &c., of any decedent, until the administrator has given bond with security, to apply the proceeds of sale according to his duty. The 43d section of the act of 24th February, 1834, provides that no executor or administrator shall have power to execute any decree of the Orphans’ Court for the sale of any real estate, for the purpose of distribution or otherwise, nor to receive the proceeds of sale until he shall have given security, to bo approved by the court, for the faithful application of the money. But these sections must be considered as directory only. The Orphans’ Court, however, ought, in all cases, to look closely into the proceedings in this respect, and observe the directions of the act of Assembly faithfully. A high discretion is vested in them, which involves marked responsibility; and owing to their defects and neglects, orphans and widows may lose what estate is left to them, and creditors be defrauded of their just rights. None of these acts, nor any other act on the subject, declares that the sale shall be void for such omission, and as the court had undoubted jurisdiction to decree the sale, we cannot hold it to be void, but must consider it valid as a judicial sale made under a decree of the Orphans’ Court, having competent and full jurisdiction, and not subject to reversal in a collateral suit. The second section of the act of 29th March, 1832, in relation to the Orphans’ Court, provides that its proceedings and decrees, in all matters within its jurisdiction, shall not be reversed or avoided collaterally in any other court, but shall be liable to reversal or modification on appeal to the Supreme Court. This law, so reasonable in itself, was strongly asserted and maintained in 8 Watts, 418, and by the decision of a previous case at this term, Painter v. Henderson, antb, 48, in which Mr. Justice Rogers delivered the opinion of the court. The Only cases where the decree can be questioned, in a collateral proceeding, are those in which fraud can be clearly established, and then, like all other proceedings of courts of every character, their judgments and decrees must give way and be dissolved by the taint: McPherson v. Cunliff, 11 Serg. & Rawle, 431; or where the want of jurisdiction appears on the face of the proceed-. ings. The first sale, therefore, and confirmation by the Orphans’ Court, payment of money by the purchaser, and deed made to him by the administrator, vested the title in him.

The subsequent proceedings by the Orphans’ Court, in setting aside the sale five years afterwards, when the matter had passed from before them, and ordering a new sale by the second administrator, who had succeeded the first, who were removed because they had left the state, were of no account whatever, and altogether insufficient to disturb the title or possession of the purchaser at the first sale. No fraud is pretended or alleged in the first sale. The purchaser paid a valuable consideration, and all the principles applicable to the case require that he should be protected. The direction of the court below to the jury, was therefore right, and the judgment is affirmed.

Judgment affirmed.


text:
    Hutchinson et al. v. Hunter.
    Where parcels of goods differ from each other in quantity or value, the property does not pass by a sale of some of the parcels until they are designated so as to be distinguishable from the mass.
    A. being the owner of one hundred and twenty-five barrels of molasses, varying somewhat in quantity, sold one hundred barrels to B., but permitted them to remain in the cellar at B.’s request. The barrels were not separated or marked, nor were any particular barrels agreed upon. B. sold one hundred barrels to C., and offered to turn them out and gauge them, but C. requested they might remain in the cellar. The goods having been destroyed by fire before delivery or specification of the particular goods, B. cannot recover from C. the agreed price of the sale.
    In error from the District Court of Allegheny.

      Nov. 4. Hunter brought this action of assumpsit to recover the price of one hundred barrels of molasses at thirty-two cents per gallon.
    It appeared that a few days prior to April 9, 1845, Poindexter had stored in a cellar in Pittsburgh, one hundred and twenty-five or one hundred and thirty barrels of molasses, which were part of a larger lot of two hundred and fifty barrels, the residue having been previously sold. Those which had been sold, gauged from thirty-nine to forty-three gallons. At this time Hunter called on Poindexter, and purchased from him one hundred barrels, which Poindexter proposed to deliver, but, at the request of Hunter, consented to their remaining in the cellar for a few days. They agreed to settle the gauge at forty gallons, for the present, and a note for $1200 was given, the true amount to be afterwards determined. The goods having been destroyed before measurement, Hunter paid Poindexter $1000. The barrels were not gauged, nor were any particular barrels set aside or marked. On the 9th of April, Hunter sold to Hutchinson & Co. one hundred barrels of molasses, which he had in Poindexter’s cellar, at thirty-two cents per gallon, and offered to turn them out and gauge them. But Hutchinson desired not to remove them for the present, having no convenient place to stow them, and, at his instance, Hunter induced Poindexter to permit them to remain in the cellar, and Hutchinson directed Hunter to send for a cheek for the money. The molasses not having been marked, separated, or gauged, was the next day destroyed by fire, whereupon Hunter brought this action for the price.
    On demurrer to evidence, the court, Lowrie, J., gave judgment for the plaintiff.

      Metcalf and Loomis, for plaintiff in error,
    cited 2 Kent’s Com. 496; Story on Sales, §§ 295, 296; Smyth v. Craig, 3 Watts & Serg. 14; Blackburn on Contracts of Sales, 124, 147, 152, 177; Downer v. Thompson, 2 Hill, 137; Macomber v. Parker, 13 Pick. 183; Ib. 215, 216; 7 Ohio Rep. 466; Barrett v. Goddard, 3 Mason’s Rep. 110, 111.

      McCandless and Williams, contra,
    cited Dickey v. Schreider, 3 Serg. & Rawle, 413: Duerhagen v. United States Insurance Company, 2 Serg. & Rawle, 185; Columbia Insurance Company v. Catlett, 12 Wheat. 383; Scott v. Wells, 6 Watts & Serg. 366; Pleasants v. Pendleton, 6 Randolph’s Rep. 480.
    Delivery is not necessary to a complete contract of bargain and sale: Blackburn on Contracts of Sales, 120, 150, 234, 235; Whitehouse v. Frost, 12 East, Rep. 614; Busk v. Davis, 2 Man. & Sel. 397; Wallace v. Breeds, 13 East, Rep. 522; Dennis v. Alexander, 3 Barr, 50; Macomber v. Parker, 13 Pick. 174; Riddle v. Varnum, 20 Pick. 280.

      Nov. 26.
   Rogers, J.

In the contract of sale of personal chattels, as in every other contract, the intention of the parties, as it appears in the form of the agreement, is the governing rule. But as parties frequently express their meaning very obscurely, the law has adopted certain rules to discover their intention. The fundamental rule which'applies to this case is, that the parties must be agreed as to the specific goods on which the contract is to attach, before there can be a bargain and sale. This, as Mr. Blackburn, in his treatise on the Contract of Sale, page 120, very correctly observes, is founded in the very nature of things. “ Till the parties are agreed as to the specific identical goods, the contract can be no more than a contract to supply goods answering a particular description, and since the vendor would fulfil his part of the contract by furnishing any parcel of goods answering that description, and the purchaser could not object to them if they did answer that description, it is clear there can be no intention to transfer the property in any particular lot of goods more than another, till it is ascertained which are the very goods sold.

This rule has existed at all times; it is to be found in the earliest English law-books. In the Year Boob, (18 Ed. 4, 14, pi. 12,) the justices all agreed that a grant to kill and take deer in the grantor’s park, transferred no property in any deer. So Lord Coke says, Heyward’s Case, 2 Co. 36: If I have three horses, and give you one of them, the election ought to be made in the lifetime of the parties; for inasmuch as no one of the horses is given in certain, the certainty, and thereby the property, begins by election.

“ It makes no difference, although the goods are so far ascertained, that the parties have agreed that they shall be taken from a specified larger stock. In such a case, the reason still applies; the parties did not intend to transfer the property in one portion of the stock more than another, and the law which only gives effect to their intention does not transfer the property in any individual portion.

In support of these principles, the author relies on White v. Wilks, 5 Taunt. 176; Busk v. Davis, 2 Man. & Sel. 397; Wallace v. Breeds, 13 East, 522; Austin v. Craven, 4 Taunt. 644, and Shepley v. Davis, 5 Taunt. 617. To these authorities may be added Smyth v. Craig, 3 Watts & Serg. 14; Scott v. Wells, 6 Watts & Serg. 366; Downer v. Thompson, 2 Hill, 137; Merrill v. Hunnewell, 13 Pick. 213, 214; Barrett v. Goddard, 3 Mason, 110.

Chancellor Kent (2 Com. 496) thus lays down the rule: If any thing remains to be done as between the seller and the buyer, before the goods are to be delivered, a present right of property does not attach in the buyer. The goods sold must be ascertained, designated, and separated from the stock in quantity with which they are mixed, before the property can pass. It is a fundamental principle pervading everywhere the doctrine of sales, that if goods be sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller until the specific property be separated and identified. See, also, to the same effect, Bell on Contracts, 27, and Story on Sales, § 295.

As to these points, the authorities arehiniform and full to the point, with the exception of Whitehouse v. Frost, 12 East, 614. With this case much dissatisfaction was expressed in White v. Wilks, 5 Taunt. 176, and Austin v. Craven, 4 Taunt. 644; it may be considered as overruled. Indeed, as subsequently explained by Le Blanc, one of the judges who decided it, in Busk v. Davis, 2 Man. & Sel. 397, it may be doubted whether even that case be an exception. In Whitehouse v. Frost, says Le Blanc, J., the owner of a large quantity of oil in the mass, sold a certain quantity of it to B., who contracts to sell the same to C., specifically, as an undivided quantity, and gives him an order on the owner for the delivery, which order the owner accepted. The question that arose was not between the owner and B., but between C. and B., who, as far as it was in his power, had done every act to complete the delivery, for he only pretended to sell an undivided quantity. Therefore, whatever might have been the case as between the owner and B., the court were of opinion that as between the sub-vendee and B. the sale was complete. As reported, the case of Whitehouse v. Frost is undoubtedly in conflict with all the previous and subsequent cases; and as explained, there may be some doubt as to the soundness of the decision. It is difficult to understand why the süb-vendee should be in a different position from the original vendee, and how he could transfer a property not vested in him by the original contract. But be this as it may, it appears from the explanation, that Mr. Justice Le Blanc was himself dissatisfied with the decision as reported, and acknowledges that it cannot be reconciled with the current of cases before and since.

Mr. Blackburn, in his treatise on the Contract of Sale, says, page 152, “ That where the agreement is for the sale of goods, and also for the performance of other things, the rules to ascertain whether the performance of any of those things is meant to precede the vesting the property or not, are two-fold.

“ The first is that where, by the agreement, the vendor is to do any thing to the goods for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or as it is sometimes worded, into a deliverable state, the performance of those things shall (in the absence of circumstances indicating a contrary intention) be taken to be a condition precedent to the vesting of the property.

“The second is, that where any thing remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods; the performance of those things also shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted.”

The first of these rules meets the approbation of the learned commentator, although he disapproves of the latter. The second rule, of which there is no trace in the reports before the time óf Lord Ellenborough, seems, as he observes, to be somewhat hastily adopted from the civil law, without adverting to the great distinction made by the civilians between a sale for a certain price in money, and an exchange for any thing else. “ The English law makes no such distinction, but, as it seems, has adopted the rule of the civil law, which seems to have no foundation except in that distinction, In general, the weighing, &e., must, from the nature of things, be intended to be done before the buyer takes possession of the goods, but that is quite a different thing from intending it to be done before the vesting of the property; and as it must in general be intended that both the parties shall concur in the act of weighing where the price is to depend upon the weight, there seems little reason why, in cases where the specific goods are agreed upon, it should be supposed to be the intention of the parties to render the delay of that act in which the buyer is to concur beneficial to him. Whilst the price remains unascertained, the sale is clearly not for a certain sum of money, and therefore does not come within the civilian’s definition of a perfect sale, transferring the risk and gain of the thing sold; but the English law does not require that the consideration for a bargain and sale should be money numbered, provided it be of value.”

The civil law consistently declares that there cannot be a perfect sale until the price was fixed in money, though every thing else was ascertained; and, consequently, that a contract to sell'the whole of a particular parcel of goods at a price depending upon the number, weight, or measure of the goods, could not be a sale until the goods were numbered, weighed, or measured, for till then the price was not fixed in money. The contract on the part of the vendee was complete, for he was to transfer a specific ascertained thing, in the state in which it then existed, but the consideration was not a fixed sum in money till the number, weight, or measure was ascertained. This was a defect in the sale according to the principles of the civil law, but it is hard to see why it should prevent the contract amounting to a bargain and sale in the English law. In many cases, the weighing may be necessary to ascertain the specific goods; in others, it may be necessary to put the goods in a deliverable state, and in these cases the reasons are as applicable to English as to civil law; but where, as in Zagury v. Furnell, 2 Camp. 240, and Simmons v. Swift, 5 Barn. & Cres. 857, there is nothing unascertained except the money value of the price, and yet the goods are held not to be bargained and sold, there seems little to be said except that such are the decisions.

There seems to be great force in -the remarks of the learned commentator, and as we are untrammeled by authority, such may possibly be the opinion of the court, but it must be conceded that a contrary doctrine is firmly established in England, and, perhaps, in some of our sister states. And it must also be admitted that the remarks do not impugn the doctrine that before the contract is complete the goods must be specified, that the parties must be agreed as to the specific goods on which the contract is to attach before there can be a bargain and sale. And that it makes no difference in the rule, although the goods are so far ascertained that the parties have agreed that they shall be taken from some specified larger stock. So far from denying, these principles are expressly admitted by the commentator throughout his learned and valuable treatise. Pleasants v. Pendleton, 6 Rand. Rep. 480, is much relied on by the defendant, but the error in that case consists in the misapplication of a principle -conceded by the court. In regard to that case I am inclined to subscribe to the remarks of Judge Grimke, in Woods v. McGee, 7 Ohio, 466, “ that it is impossible to hide from ourself that the fact of the small difference between one hundred and twenty-three barrels, the whole quantity, and one hundred and nineteen barrels, the number sold, may have gone a great way to influence the judgment. It was a hard case, and hard cases make shipwreck of principles.” The rule, I take it, is now too firmly settled to be shaken; that the goods sold must be ascertained, designated, and separated from the stock or quantity with which they are mixed before the property can pass. Until this be done, it remains the property of the vendor, and if destroyed by fire or otherwise it is- the loss of the vendor, and not the loss of the vendee. It remains to inquire how this principle applies to the case in hand. The facts, so far as material to this case, are these: — R. W. Poindexter, having a lot of about ode hundred and twenty barrels of molasses in the cellar of his warehouse in the city of Pittsburgh, made á parol contract of sale of one hundred barrels of the lot to the plaintiff at thirty cents a gallon, a few days before the great fire of the 10th of April, 1845. The plaintiff, preferring not to receive immediate and actual delivery of the molasses, obtained permission of Poindexter that the molasses might remain in Poindexter’s cellar. The parties assumed what they believed to be a fair average of the contents of the barrels, being forty gallons per barrel, and the plaintiff gave Poindexter his note for the amount so ascertained, agreeing that it should be corrected by the gauge of the barrels, when they should be separated and delivered to the plaintiff. A few days afterwards, on the 9th April, 1845, the defendants called upon the plaintiff to purchase some molasses. The plaintiff informed them that h’e had one hundred barrels in Poindexter’s cellar, which he was willing to sell, and after a treaty the parties agreed in a purchase and sale of the. one hundred barrels of molasses, at thirty-two cents per gallon. Thereupon the plaintiff said he would go down to Poindexter’s and have the molasses turned out, gauged, and delivered, but the defendants replied they would prefer not; they did not want to remove it; they had no convenient place to put it, and asked plaintiff to see Poindexter and get his leave that it should remain where it was, and told plaintiff to come to their office and they would give him a check for the amount of the molasses.

The next day the molasses was destroyed in the great firej without having been removed or gauged. After the contract, and before the fire, the plaintiff informed Poindexter that he had sold the molasses, and requested that it might still remain in his cellar for the purchaser, to which Mr. Poindexter consented. The average contents of the barrels was usually forty-one to forty-two gallons, some as high as forty-five gallons. So far as they were sold by Poindexter, who it seems had sold about one hundred and twenty-five, or one hundred and thirty barrels, when plaintiff bought, they gauged from thirty-nine to forty-three gallons.

This was a sale of one hundred barrels of molasses, of unequal contents and unequal value, part of a specified larger stock. The particular one hundred barrels is not designated either by marks or numbers, nor is it separated from the molasses unsold ; it is, therefore, wanting in that essential feature to constitute a complete and valid sale. The goods sold, as we have seen, must be ascertained, designated, and separated from the stock or quantity with which they are mixed before the property can pass. It remains the property of the vendor, notwithstanding the contract, until it is identified and individualized. This is unquestionably the law, as is firmly settled by authority, and which we have no wish nor authority to alter. It is better to stick to the beaten track rather than try untrodden ground. As Judge Grimke says, it is difficult to answer the inquiry, on whom would the loss have fallen had part only of the molasses been destroyed ? If a person purchases cloth from a merchant for a coat, not to be cut off until the tailor be sent for, and in the intermediate time the store and its contents are burnt by fire, there would be but one opinion that the loss must fall on the seller and not the buyer. But it is impossible to distinguish the case put from the case in hand.

An idea seems to have been entertained that the sub-contract differs this case from the cases cited; but in what particular I am at a loss to imagine. So far as regards the identification or separation of the goods sold, it remains precisely as before. It is said that Poindexter became the bailee of Hutchinson & Co. But the question return, of what Ayas he the bailee ? Certainly of property ay hick had been «asr separated from the specified stock. It still remains the property of Poindexter, Hutchinson & Co., taking the place of Hunter. Hunter cannot convey to Hutchinson & Co. a better right than he himself had. Hutchinson & Go. succeeded to his contract, and until the separation of the goods no title passes, because, according to .the well-settled principles of law, the bargain and sale is not complete.

It will be observed that'the case is put entirely on the fact that the barrels were of unequal quantities and values, and had not been separated from the molasses still owned by the vendor. That the molasses was not gauged does not enter into the consideration of the court in determining the defendant’s liability to the action.

Judgment reversed, and judgment on the demurrer for the defendants.


author: Bell, J.

text:
    Alter’s Executors v. McBride.
    Under the acts of Assembly, the school directors are authorized to assess upon the inhabitants of their district three times the amount of the fund received under the appropriation by the state for the year for which such assessment is laid; and that appropriation is based upon the number of taxable inhabitants in the district.
    In error from the Common Pleas of Allegheny.

      Nov. 5. McBride brought replevin for a cow sold to Alter under a distress for school-taxes assessed against McBride. Notice had been given at the sale that the tax was illegally assessed, and was excessive, and that was the question on the record. In the year for which the assessment was made, Moon township, which constituted the school district in which McBride resided, contained two hundred and sixty taxable inhabitants. For that year the district received out of the appropriation, by the state, $260; and the assessment for that year was for three times that amount. In September, the duplicate and warrant of distress was delivered to the collector, and McBride paid one-half of the amount. The sale was made under that authority, and the question' was, whether the assessment was excessive. The court (Patton, J.) instructed the jury that the directors, in their assessment, were restricted to the amount to which the district was entitled out of the appropriation by the act of 1836.
    Narrah, for the plaintiff in error,
    on this point cited Wilson v. Lewistown, 1 Watts & Serg. 430, and the acts of Assembly.
    Woods, contra.

      Nov. 13.
   Bell, J.

The correct solution of the principal point raised by this case depends on the proper construction of the act of the 13th June, 1836, relating to common schools, and the supplement of 12th April, 1838. By the eleventh section of the former statute, $200,000 was appropriated out of the common-school fund for the year 1837, and the like sum annually thereafter to he apportioned among the several school districts of the Commonwealth, according to their number of taxable inhabitants. The fourth section directs the school directors of any school district, which might adopt the common-school system, annually to authorize to be levied such an amount of tax on the district as they may think necessary for school purposes — not less than equal to, nor more than treble, the amount which the district is entitled to receive out of the annual state appropriation. The third section of the act of 1838 makes it the duty of the commissioners of each county in the state, triennially to ascertain, with the assistance of the re spective assessors, the exact number of the resident taxable citizens in each common-school district in their several counties, and to certify the same to the superintendent of common schools, who is directed to adopt the number of taxables thus certified to him as the basis of distribution of the state appropriation. The first section of the same act provided that the sum of $108,919 should be added to the annual school appropriation for the school year, to commence’ on the first Monday of June, 1838; and such sum annually thereafter as will make the amount of the appropriation equal to $1 for each taxable citizen of the Commonwealth — “said increased appropriation to be distributed and paid out in the manner directed by the act to which this is a supplement, without any increase of taxation beyond the amount therein named.”

In the year 1844, the number of taxable inhabitants of Moon township, constituting a school district within the county of Allegheny, was duly ascertained and certified to be two hundred and sixty; and, consequently, the school directors of the district received of the common-school fund, set apart by the state, the sum of $260. Professing to proceed under the acts of Assembly I have cited, the school directors caused to be assessed and levied within the township for the support of schools, a tax equal to treble the amount received from the state, making that the basis of the assessment. The amount thus levied is double what could have béen legally assessed, taking the share of Moon township in the $200,000 appropriated by the act of 1836i as the basis of the assessment. The plaintiff helow, having paid one-half the amount thus assessed upon his property, refused to pay the balance, on the ground that the tax was excessive, illegal, and void — the school directors having exceeded their authority. Whether this tax is so excessive and illegal under the acts of Assembly, is the principal question presented for determination in the cause; and this, as I have said, depends upon the construction given to the statutes. It was, undoubtedly, the policy of the framers of the act of 1836 to compel accepting school districts, to raise, by way of taxation on the property of the district, a sum for school purposes, not less than equal to, nor more than treble, the amount which the district might be entitled to receive out of any annual state appropriation. The language used is explicit to show that this was a leading intent, and the scope of the statute proves the operation of the intent was not to be confined to any single year, or to be governed by the specific amount of the public moneys appropriated by the particular act. It was to be expected, and experience has verified the expectation, that, in different years, different amounts would be appropriated by the legislature, accordingly as the exigencies of the public service and the pecuniary ability of the state might dictate. The amount of tax to be authorized by the citizens of the accepting districts would, therefore, necessarily fluctuate in proportion as the donation made by the state, in any one year, was greater or less; but still it was to bear a certain proportion to the donation within the limits pointed out by the act. Being a general statute, its provisions would, of course, extend to and embrace all subsequent statutes on the same subject not inconsistent therewith, and the general rule established by it, for ascertaining the boundary, limiting the power of the school directors in respect to the amount of tax to be assessed within their precinct, is of prospective efficacy, unless there be some provision in a subsequent statute, establishing some other rule. -The plaintiff below avers that such a provision is to be found in the act of 1838, which, while it increases the amount of the public appropriation, beyond the act of 1836, so as to make it equal to $1 for each taxable citizen, restrains the discretion of the school directors to the basis of taxation fixed by the earlier statute. But we all think this hypothesis proceeds upon a misapprehension of the language of the latter enactment. It must be confessed the section is somewhat obscurely worded, and that, without doing much violence to its grammatical construction, it admits of two readings very dissimilar in meaning and results. If we make the last clause of the section beginning with the words, “ said increased appropriation to be distributed,” &c., applicable to the whole of the preceding portion, the construction contended for by the plaintiff below would seem to be the true one; but, if. we confine its operation to the added sum of $108,919, there is nothing in it to restrict or alter the general intent of the act of 1836. - The -whole section would then read, The sum of $108,919 be and the same is hereby added to the annual common school appropriation for the school year, which will commence on the first Monday of June, &c. — said increased apropriation to be distributed and paid out in the manner directed by the act to which this is a supplement, without any increase of taxation beyond the amount therein named; and such sum shall annually thereafter be added as will make the amount of appropriation equal to $1 for each taxable citizen of the Commonwealth.” This reading satisfies all the terms of the act, giving an appropriate operation to each of its provisions. But, if it be objected that this transposition of the members of the section is unwarranted, an answer will be found in the general rule of construction that particular expressions and collocations of sentences in a statute will be made to subserve the general and leading intent of the law-makers. That intent being once ascertained in the initiative act, it is not to be supposed the legislature designed to depart from it, by a subsequent statute in pari materia, unless such a design be unequivocally manifested. This is especially true when the intent forms a radical feature of a system without which its symmetry would be marred and its action crippled. Now, we have seen that, at the very foundation of the scheme of education by common schools, devised by the act of 1836, lies the condition that, to entitle a district to its proportion of the public fund, the people of the precinct- must agree to contribute, at least, an equal sum. This is, indeed, the corner-stone of the structure. Did the legislature contemplate its removal by the act of 1838 ? The great design of this law was to make the donation of the state bear a fixed proportion to the constantly fluctuating number of taxable inhabitants in the particular district; so that the sum to be given, for the support of the schools, should increase or decrease according to the number, to be educated. The object was to make the system more efficient by providing means in a ratio commensurate with the exigencies of the population; but the object would be, in a great degree, defeated by ascertaining a particular sum as the basis of the voluntary taxation, to be submitted to by the peopie, which, squared by such a rule, must continue to decrease, so far as the contribution of each taxable is involved, as the population of the district, and, consequently, the expense of the schools increased. We cannot think the legislature intended to depart so far from the policy of the act of 1836 as to provide a perpetually changing measure of the state donation, and a fixed and unchanging standard of the popular contribution, which must destroy the equality of burden designed by the earlier statute to be borne by the inhabitants of the several districts. This would seem to involve the contradiction of an intent to advance the prosperity of a favourite plan with one hand, and to retard it with the other. We cannot but believe, if such had been the design, it would have been expressed in language admitting of but one construction. Eut such language has not been employed, and, as the act of 1838 may, without impropriety, be so construed as to avoid the result to which the plaintiff’s view of it would lead, we are best satisfied to give it a construction in consonance with the spirit of the acts associated with it. We feel fortified in this construction by a reference to the difficulties which would attend the assessment of a tax to be based on the districts’ proportion of a fixed sum, which could only be ascertained by an enumeration of the whole number of taxable inhabitants in the state — a computation the school directors have no means of making ; but which they would, in some way, be obliged to ascertain, inasmuch as, by the twelfth section of the act of 1836, a warrant is to be issued by them for the collection of the school-tax before they are entitled to receive any part of the state fund.

This construction of the statute proves that the tax for the payment of which the property of the plaintiff below was sold, was legally assessed, and, going to the ground-work of his action, renders unnecessary a determination of the other points raised on this record. Judgment reversed.


text:
    Wentz’s Appeal.
    The right to accept the real estate at the appraisement in partition is gone by the neglect or refusal of the heirs or their alienees to appear and accept, on the return of the rule. Semble — The court may, in their discretion, allow an acceptance at a subsequent time; but if the property has advanced in value, it should never be exercised. Per Kogers, J.
    From the Orphans’ Court of Westmoreland.

      Nov. 6. On the 27th August, 1846, an appraisement in partition was confirmed and a rule granted on the heirs to appear on the first day of the next term, (which fell on the 15th February, 1847,) to accept or refuse the real estate at the valuation. The rule was served but no heirs appeared. On the 18th February, a rule on the heirs was granted to show cause why the real estate should not be sold. On the hearing, Wentz,,as alienee of the second son of the intestate, the eldest son not appearing, requested that the estate should be adjudged to him at the valuation, which was refused, and an order of sale made the next day. It did not appear from the paper book when the title of Wentz accrued, or that he had notice of the first rule on the heirs.
    This refusal of the court was assigned for error.

      Foster, for appellant.

      Kuhns, contrá.

      Nov. 10.
   Rogers, J.

The eldest son or his alienee has the undoubted fight, at the return of a rule granted for that purpose, to come in and accept the real estate at its appraised value, but if he refuses, or, what is the same thing, neglects to do so, the right of election is gone for ever. If he slips the opportunity given on the return of the rule he cannot again assert his right, for that would be equivalent to giving him two rights of election instead of one. This is abundantly manifest from the act of the 29th March, 1882, and on authority. The 40th section provides that on appraisement in partition, the Orphans’ Court shall on application grant a rule on all persons interested to come into court at a .certain day to be fixed, to accept or refuse the estate so appraised, and if they do not come into court, or in case they refuse to take, a record is directed to be made and the estate offered to the next in succession. Two things are apparent from this section: 1st, That there is no difference as to the effect, whether the party expressly refuses or neglects to take; and 2d, That the appointed time to make the election is on the return' of the rule. But having slipped his time, can he again elect ? The authorities are full to the point that he cannot. Thus in Lawrence v. The Ocean Insurance Company, 11 Johns. Rep. 241, it is ruled, that an election once made is irrevocable, and in Com. Big., tit. Flection, A. 2, that a man by wrong or default may lose his eleétion. If an election once made is irrevocable, why is not a refusal or neglect to elect at the appointed time of the same binding force. The reason which applies to one, has an equal application to the other. If the eldest son had elected to take, it will not be denied he would be bound by it, because otherwise he would be at liberty to change his mind. When the property decreases in value, when he refuses, why should he be permitted to assert a right to take the property at the appraised value, when from particular or general causes it may rise in value. The glaring injustice of this pretension is a conclusive argument against it; for it will be observed it is claimed as a right, and not as a matter resting in the sound discretion of the court. The primary object of the intestate laws is to produce equality as far as practicable among the heirs, for equality is equity. No preference is given except that which arises from sex or priority of birth, and this is from necessity. But when is this assumed right to cease ? It is contended in effect that it continues until the return of the rule to show cause why the estate should not be sold; but this may be years after the refusal or neglect to accept, and in the intermediate time it may increase immeasurably in value. Could the legislature ever intend the injustice which must necessarily flow from such a construction ? For the eldest son would accept or refuse invariably as the property might rise or fall in value. This alone would determine his course. In speaking of the application, the language of the act (40th section) is imperative. The Orphans’ Court shall, on application of any one of the heirs, grant a rule to show cause why they should not accept or refuse; but in the 42d section the language is different. The court may, as is there said, on due proof of notice to all persons interested, make a decree authorizing and requiring the executor or administrator, &c., to expose the real estate to public sale at such time and place and on such terms as the court may decree. A discretionary power is therefore vested in the Orphans’ Court in the latter, although not in the former case. And this is a proper discrimination, for it would be' productive of much mischief if the court were bound to order a sale at an inconvenient season of the year, or where, from any causes, either general or partial, it would be likely to bring less than its intrinsic value. Hence the court may, in their discretion, direct or refuse the application to sell; and hence the propriety of bringing in the heirs on notice to show cause for or against the sale. This is an answer to the only argument which has been urged in favour of the alienee. From these views it results that the eldest son or his alienee has no right to elect, except at the time fixed by the court, viz. at the return of the rule granted for that purpose. That is the appointed time, and if he refuses or slips his opportunity, then he shall not again exercise a right which he has voluntarily consented to forego.

But has the court any discretion over a matter of this kind ? It would be perhaps perilous to say they have not, as cases may arise where it would be proper to exercise it; but the court will be cautious in doing so, unless with the consent of all the heirs, and never when the property, as here, has risen in value. After refusal to accept, • the other heirs have rights of which they ought not to be deprived, unless with their own assent.

This court is of the opinion that the Orphans’ Court was right in refusing to adjudge the real estate to Moses Wentz, the alienee of the second son, and therefore the decree is affirmed.

Decree affirmed.


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    Wills v. Gibson.
    The lien of a judgment for arrears of ground-rent is not confined to the period limited by the act of 1798.
    The twenty years which raise a presumption of payment of a judgment which had been confessed, “ the amount to bo ascertained by the prothonotary,” does not begin to run until the amount has been ascertained.
    The payment of a ground-rent by an assignee of the land, which accrued during his tenancy, does not raise a presumption of payment of the arrearages which accrued during the tenancy of his assignor, for which a judgment had been obtained.
    In error from the Common Pleas of Allegheny.

      Nov. 8.. This was a scire facias to December Term, 1845, by the administrators of Wills, to revive a judgment for arrearages of ground-rent against the original defendant, with notice to the present terre-tenant. Culbert, the terre-tenant, pleaded that the judgment was not a lien, and secondly, that she was a purchaser for valuable consideration, and the judgment was no lien. It appeared that, in 1823, the administrators of Wills brought covenant for rent against James Gibson, assignee of John Gibson, who was the grantee of Wills, on ground-rent by deed, dated in 1814. In the declaration, the plaintiffs claimed for two years’ rent, amounting to $112, due in the lifetime of Wills, and for $42 accruing subsequent to his death. Pleas were filed, and in March, 1825, judgment confessed by attorney, “ sum to be liquidated by prothonotary, on five days’ notice.” It further appeared from the record, that notice of the liquidation of the judgment had been served in 1832, whereupon the amount due was settled by the prothonotary as follows: “ Debt per settlement made Nov. 7, 1825,* $81 27J. Interest from Oct. 25, 1825, to Jan. 1832, $30 57: $111 84J.” Culbert, the terre-tenant, proved she purchased the property in 1886. She further showed, that the guardians of the minor children of Wills had received several sums of money on account of rent, viz. $112 62, from James Gibson, between 1831 and 1833 ; from 1833 to 183“7, $240 12; from 1838 to 1840, $140, from Gibson or Culbert, and from Mrs. Culbert several sums from 1843 to 1846. The plaintiff in rebuttal showed the administration account in 1832, in which credit was claimed on account of this judgment being unpaid.
    The court, Patton, J., left it to the jury to say, from all the circumstances in the case, whether the judgment had been paid; but said, that at all events, it ceased to be a lien on the land of the ter re-tenant.

    Wills, for plaintiff in error.
    The proceeding was to revive the judgment against Gibson personally, and incidentally to affect the land of the terre-tenant, for which purpose notice was proper: 3 Penna. Rep. 229; 16 Serg. & Rawle, 432. It is immaterial whether the parties were present or not at the liquidation of the judgment, which was a confession of the arrears being due at that time. The authority to the prothonotary, with the service of notice of his intended action, was equivalent to actual assent, and all things are to be presumed in favour of regularity. Behind this the court cannot go in a scire facias: the remedy is by motion. It was therefore a judgment unascertained as to amount, until that period, and from thence only can the presumption commence running. The error the court fell into was in considering the two liens as distinct, which, so far as regards the present case, they are not. There is no limitation of the lien of arrears of ground-rent, saring the presumption of payment; and this is emphatically rebutted by the judgment. That gave no greater lien on the land; it is but a means of enforcing the prior lien, like a judgment on a scire facias sur mortgage. At the time of the confession of that judgment, the arrears being admitted by matter of record to be unpaid, the land is liable for them, and the proper method to enforce that liability is by proceeding upon that judgment.

      Williams and McCandless, contra,
    referred to Levers v. Van Buskirk, 4 Barr, 309; Commonwealth v. Baldwin, 1 Watts, 54; Taylor v. Megargee, 2 Barr, 225; Tilghman v. Fisher, 9 Watts, 445; Brady v. Colhoun, 1 Penna. Rep. 140; St. Mary’s v. Miles, 1 Whart. 229.

      Nov. 29.
   Gibson, C. J.

The points of defence taken by the terre-tenant, who is the substantial party, were payment of the judgment and expiration of its lien. As to the latter, it is enough that the lien arose, not from the judgment for the arrears, but from the ground-rent deed; and, consequently, that it was not subject to the provisions of the act of 1798. A judgment for such arrears, like a judgment against an administrator, creates no new lien; but the lien of a ground-rent, unlike the lien of the intestate laws, is not limited in its duration by positive enactment: and the terre-tenant was consequently thrown upon his plea of payment. The evidence to maintain it, was a legal presumption from lapse of time, and also from payment of subsequent arrears; either of which was supposed to be sufficient to raise it. The first question for the court had regard to the point of time from which the presumption from lapse had begun to run. It had originally started at the instant when the arrears fell due; but it was arrested in its course by the confession of judgment in the action of covenant on the ground-rent deed, which conclusively established that the debt had remained till then unpaid : yet had that judgment been final, or, in other words, for a definite sum, the period to found the presumption would have taken a new start from the date of it. But the sum was, by the terms of the confession, to be liquidated by the prothonotary on notice; and before that was done, a new period could not begin. These presumptions are legal inductions of fact from violent probabilities, founded by experience in the usual current of human actions in similar circumstances; and they are not entertained when they would lead to conclusions contrary to the usual course of events, or to establish a fact in itself improbable. Now it would be contrary to all experience to presume that a debtor had paid what he could not safely pay; and had the defendant undertaken to pay the judgment before the amount of it was ascertained, he would have been in danger of paying too much. Voluntary payments are tardily made, even in the clearest cases of fixed' liability — they are never made while any thing remains to be adjusted. The defendant’s disregard of the notice to liquidate, was equivalent to an admission that he had no credits to claim; for a judgment in default of appearance at the proper time, is as conclusive in its consequences as if the party-had actually appeared and made an unsuccessful defence. By the prothonotary’s liquidation, the judgment which had been before interlocutory, became final, and estopped the defendant, and his subsequent privy in estate, from denying that the debt had theretofore been unpaid. It was in effect a new judgment, and the date of it was within twenty years of the suing out of the scire facias; consequently, as no foundation for the legal presumption of payment was found in that quarter, tbe terre-tenant was compelled to seek for it elsewhere; and he had recourse to certain receipts for his own payment of arrears, incurred long afterwards, when he had become debtor in respect of his ownership of the fee. But though a receipt for rent due at one time affords a presumption that the rent previously due had been paid, it would be unreasonable to extend it to rent for which the tenant was not himself primarily liable. It is so weak, at best, that it may be blown away by any breath of opposition. It is founded on a supposition that the tenant, in the run of such transactions, usually first pays what is first due; but when it is his interest to have his payment applied to those arrears for which alone his landlord can distrain, or has a right to priority of satisfaction out of his chattels sold on execution, he will be very apt to exercise his incontrovertible right of appropriation. The very assumption of the practice is a fallacy; but I will not say that the presumption usually drawn from it is not founded in authority. It may hold in the case of an undivided liability for an entire period; but where there are different paymasters of different arrears, the presumption is, that each pays no more than what he is debtor for between themselves. The landlord’s volition enters not into the question, for he is bound to receive what is tendered, at the peril of losing interest, and to appropriate it as the tenant directs. In these particulars the charge had a tendency to mislead.

Judgment reversed, and venire de novo awarded.


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    Brawdy v. Brawdy.
    Tlie change of possession, under a parol sale, must be notorious and continued. Hence, where the tenant attorned under instructions, and made a new bargain with the vendee, but when the rent fell due was directed to pay it to the vendor, who was his debtor, which he did by allowing him credit for the amount, and then quit possession, giving notice to the vendee, and the vendor entered and remained in possession, the case was held to be within the statute of frauds, although the location and boundaries of the land, and the price and partial payment thereof, were clearly proved.
    In error from the District Court of Allegheny.

      Nov. 9. Ejectment. The question was, whether the plaintiff had given sufficient evidence of the transfer of possession to go to the jury, on the question of an alleged parol sale. It appeared that John Brawdy owned the land in dispute, which was ocpupied by his tenant, McGibbeny. He proved that, in 1840, John Brawdy and the plaintiff, Moses Brawdy, were together at the house of the latter. Shortly afterwards John Brawdy told the witness he had sold that part of the lot witness lived on, which lay east of the Brownsville road, to Moses, for $900. The land was surveyed in the presence of the parties and others, and the witness described the lines run. Afterwards, John told witness if he wanted to live any longer on the lot, he must rent it from Moses, and a bargain with him was concluded, under which the occupation was continued by McGibbeny for one year. When he went to pay the rent to Moses, he told him to settle with John. McGibbeny said he had claims against John, which Moses said he knew. A settlement was thereupon made with John, by giving him a credit for the amount of the rent. At the end of the year,'McGibbeny gave notice to Moses, and on quitting possession, John entered and remained in possession.
    The plaintiff also proved the preparation of a deed, pursuant to verbal instructions, by John; payment of part of the purchase-money to him, and also to his vendor, of a part that remained unpaid at the time of the alleged sale. He also proved the admissions by John, that the sale had taken place, and proved the survey already mentioned. Taxes were paid by the tenant, and partially receipted for to Moses, but the assessment continued in the name of John.
    The defendant was a son of John Brawdy, and also had title under a sheriff’s sale to him, under a judgment against John, nearly three years after the alleged sale to plaintiff. Many exceptions were taken to his evidence of title, but are immaterial to the point on which the cause turned. Lowrie, J., directed a verdict for the defendants, saying he decided the case as upon a demurrer to evidence.
    Woods, for plaintiff in error.

      McCandless, contrá.

      Dec. 4.
   Gibson, C. J.

An ejectment to enforce specific performance of a purchase, being with us a substitute for a bill in equity, is to be affected with all those considerations that would affect a bill for that purpose in the contemplation of a chancellor. With him the enforcement of the contract is not of right, but of grace; and he withholds the exercise of his extraordinary power wherever there is a doubt about the facts on the basis of which it is invoked. He invariably refuses to decree on the uncorroborated testimony of a single witness, in opposition to even the defendant’s interested answer on oath, though it cannot be read as evidence for him at the hearing. Where there is oath against oath, though one of the parties has sworn under the pressure of interest, he requires something still to turn the scale, as in Only v. Walker, 3 Atk. 407, in which the defendant’s denial of the agreement, in answer to a bill for specific performance of it, was overborne by the testimony of a single witness, only because it was corroborated by . evidence of the defendant’s confession. So in Morphett v. Jones, 1 Swans. 172, where the testimony of the witness was seconded by evidence of part execution. But in Pilling v. Armitage, 12 Ves. 78, in which both the answer and the opposing testimony of the witness were corroborated by circumstances, Lord Eldon refused to execute the agreement, because the evidence of it was in equilibrio. All thisNshows that a chancellor weighs these matters in nice scales; insomuch that it was held in the East India Company v. Donald, 9 Ves. 275, that he will not decree against the answer, even on the corroborated testimony of a witness, without giving the defendant an opportunity, should he desire it, to try the question at law, and this too on terms more favourable than would be afforded by .ordinary rules of evidence, which would preclude his answer from being read on the trial of the issue. But in Savage v. Brocksopp, 18 Ves. 337, the answer was ordered* to be read, for the purpose of contrasting it with the testimony of the witness. But even where a chancellor sends such an issue to a jury, it is only as an advisory council and in ease of his conscience; for he may direct any number of new trials, or decide at once in opposition to the verdict, as was done in Armstrong v. Armstrong, 3 M. & K. 45. These authorities show that the case must be proved to the entire satisfaction, not only of the jury, but the chancellor also; and have not our courts, in giving effect to principles of equity through the same medium, the same legitimate control over the results of the evidence ? It would be fatal to a systematic administration of the relief claimed, if they had not. If the jurors were the uncontrolled arbiters of the facts, we should indeed have what is aptly called, by Mr. Justice Grier, in Haslet v. Haslet, 4 Watts, 464, a hybrid species of equity. It is true, that the verdict, in an ejectment like the present, may be well found on the oath of a single witness, because there is no opposing oath of the defendant; and it is also true that, unlike a chancellor, the court cannot give judgment non obstante veredicto; but rather than give judgment in conformity to it, when found on insufficient evidence, it would be proper to grant new trials for ever; and to save the vexation of such useless litigation, it is equally proper to indicate beforehand the measure of evidence a chancellor would require. Was there such a measure here ? If there was not, the cause was properly taken from the jury.

The plaintiff was bound, in the first place, to prove, not only the existence of the contract, but the terms and conditions of it, which seems to have been sufficiently done by the testimony of the vendor’s tenant, McGibbeny, who swore that his landlord, John Brawdy, under whom both parties claim, told him he had sold the lot in contest to his brother Moses, the plaintiff, for $900; and that if he, the tenant, desired to live longer on it he must rent it from Moses. This is corroborated by the fact that the ground, as it had been described to the witness by the vendor, was subsequently laid off by a surveyor in the presence of the parties. There wTas no written memorandum of the bargain, but that is not essential. The case of Symondson v. Tweed, Prec. in Ch. 374, in which it was said that wherever the court had decreed specific performance, the contract had been made out from letters containing the stipulations in it, is no longer to be regarded as authority, at least in Pennsylvania, where the whole of the English statutes has not been enacted. A contract, thus put in writing, would satisfy even the fourth section of that statute without aid from part performance. Nor is more respect to be had to the doctrine of Lord Alvanley in Forster v. Hale, 3 Ves. 712, that the courts had gone too far, after proof of part execution of some agreement, in admitting parol evidence of the contents of it; for it is the constant practice in these latter days, to enforce such contracts on parol proof of their terms. But taking the agreement to have been well proved, was there sufficient proof that it had been partly executed?

The facts are these: — McGibbeny, the tenant of John, the vendor, was told by him that if he wanted to live on the lot any longei’, he must rent it from Moses, and he did so; but offering to pay Moses the rent at the end of the year, he was told by him to settle with the old man, (John,) and he did so. McGibbeny, when going to quit, gave notice to Moses; but when hemoved out, John moved in, and has remained ever since in the actual possession. Moses paid a considerable part of the purchase-money; but it is settled that payment alone does not constitute part-performance. Now it is observable that there was no notorious transfer of the actual possession, such as was required in Pugh v. Good, 3 Watts & Serg. 56, in which an actual entry by the vendor’s agent, to deliver possession in the character of the vendee’s lessee, was held to he part-performance, on the ground that the execution of the authority resulted in a visible, palpable, and notorious transfer of the actual possession in performance of the contract. In the ease before us, there was no act of notoriety whatever. Even attornment by the vendor’s tenant, were it enough to satisfy the statute, ought to he a formal, public, and explicit one. A parol sale to a tenant in possession is within the statute, because there is no change of possession in execution of the contract; nor is there any perceptible change effected by an attornment. In Pugh v. Good, the publicity of the actual transfer was compared to the notoriety of the ancient feudal investiture ; and it was thought for that reason to he a sufficient safeguard against perjury : hut there is no such publicity in a mere act of attornment. It was on similar ground we held, in Galbreath v. Galbreath, 5 Watts, 146, that a tenant in common could pass his estate to his co-tenant, only by a written conveyance or by a parol sale, accompanied with visible, distinct, and exclusive possession. Here, however, the evidence leaves it in doubt whether there had ever been an attornment.. The vendor told his tenant to rent from the vendee, and he did so; the vendee told him to pay the rent to the vendor, and he did so; and the vendor formally resumed the possession. The uncertainty about the true state of the transaction indicates that it was intended to confound the vendor’s creditors, and the judge therefore very properly directed that the evidence had failed to prove a case proper for the interposition of a chancellor.

Judgment affirmed.