text:
    Armstrong’s Appeal.
    1. Whenever there is a deficiency of assets to pay both debts and legacies, specific devises and specific legatees shall abate proportionably.
    2. A demonstrative legacy has in this respect the privilege of a specific legacy.
    3. A demonstrative legacy is the bequest of a certain sum of money to be paid out of a particular fund.
    4. A demonstrative differs from a specific legacy in that if the fund out of which it is payable fails, it is still entitled to come on the estate as a general legacy, and it differs from a general legacy, in that it does not abate in that class, but in the class of specific legacies.
    5. In marshalling assets for the payment of the debts of a testator, specific devises of land abate proportionably with specific and demonstrative legacies.
    6. A testator bequeathed $1200 to each of two daughters from proceeds of land ordered to be sold, and provided that if the land should not produce enough to pay the bequests, they should “ be paid out of my estate in general.” This implied a preference and priority to the daughters, and that their legacies were to be paid at all events.

      November 16th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Greene county: In the estate of William Armstrong, deceased; No. 68, to October and November Term 1869.
    The decedent died in 1861, having made a will dated August 18th 1852, and three codicils dated respectively, April 15th 1853, April 9th 1858, and February 26th 1851. By his will he made provision for his wife for life, and gave his furniture and other chattels to his daughters, Elizabeth Barekley and Mary Rea, equally, after his wife’s death. He devised his real estate, except “the mill property,” to his sons Alfred, Russell, William and Joseph, directing his executors to have the real estate, except the mill property, appraised, he then proceeded:—
    “ My homestead farm to be divided into three parts or parcels, equal in quality, quantity and timber, as nearly as may be; the farm on which my son Russel lives to he appraised and whatever it may be worth more than the other three, that remainder to be equally divided between my sons, share and share alike. It is my will after my real estate is divided and appraispd that my sons as above mentioned, have and occupy the same according to their present location in fee simple for ever.
    “ Item. I direct my executors to sell my mill property at any time at their discretion, within three years after my decease, for the best price they can obtain for it; then it is my will that my executors pay to my daughters as herein named, the sum of $1200 each, out of the proceeds of such sale. In case the sale amounts to more money than is devised to my two daughters, then it is my will the remainder to be equally divided between my two heirs íd general. In case my mill property should not bring the amount devised to my daughters as above, then it is my will their shares of $1200 each be paid to them out of my estate in general. Whatever of my personal property that may be remaining not herein devised, I order and direct my executors to sell the same, and apply the proceeds of such sale to my estate in general, to be equally divided between my heirs.”
    By his first codicil, he released to his four sons, “ all rents, issues and profits, which may be due, or becoming due to me at my decease, arising from the farms they now occupy, and which I have described and given to them in the foregoing will; and further, it is my will that all the improvements that they, or either of them may have made, or may make, shall not be taken into the equalization or valuation of the before-mentioned bequests.”
    The second codicil was : — “ In addition to the foregoing will and codicil, I give and bequeath to my two daughters, Elizabeth Barekley and Mary Rea, all my bank stock, to be equally divided between them.”

      The third codicil was: — “Whereas, I have loaned to Henry Barckley, intermarried with my daughter Elizabeth, $1193, and $640, paid him for one half-section of land situate in the state of Missouri, for which I have no title; now in case he, the said Henry Barckley, does not refund the money loaned, together with the money paid for the land, or the title, with the interest, &c., then it is my will, and I hereby revoke my will herein and above expressed, so far as it relates to my daughter Elizabeth, charging her with the above money so loaned and paid to her husband, Henry Barckley; and I further give and bequeath to my daughter, Mary Rea, in addition to what I have already bequeathed, a sufficient amount out of the proceeds of the sale of my mill and bank stock and other personal property, to make her equal with Elizabeth in the amount loaned and paid to her said husband, Henry Barckley. Conditioned the said Henry Barckley pays back the money loaned, together with the money paid for the land, or the title for the same, during my lifetime, then I hereby revoke and make void this supplement to my will as above written.”
    The portions of the real estate devised to Alfred, Joseph and William were each appraised at $5586.60; that devised to Russell was appraised at $4278.91. The mill property was sold for $1415. The executors settled their account, which was confirmed March 20th 1868, showing a balance of $1330.36 due the accountants; the proceeds of the mill property were not included in the account.
    Samuel Montgomery, Esquire, was appointed auditor to report from what source the indebtedness of the estate should be paid. The auditor reported that the bank stock bequeathed to the daughters was sold by the executors for $600; and that Henry Barckley did not return the money, or make the title as mentioned in the last codicil; that Mrs. Rea would therefore become entitled to the whole of Mrs. Barckley’s share of the proceeds of the mill and bank stock, as all would not make her equal with Mrs. Barckley, according to the codicil.
    The question was stated by the auditor to be whether the indebtedness should “ be paid out of the proceeds of the mill property and bank stock, or whether it shall be paid by the heirs in proportion to what each has received.”
    He decided “that the devises and legacies should abate in proportion to their several values -for the payment of this debt; that Mrs. Mary Rea is entitled to the proceeds of the sale of the mill property, $1415, with interest on the same from the 30th day of August 1864, subject to any receipts which she may have given for money paid her by the executors, and to $600 received by the executors for the bank stock, with interest from the 30th day of December 1862, subject to receipts for money or for any bank stock which she may have received from the executors; and also, subject to a credit for $132.70, which she should contribute to the payment of debts of the testator.”
    He concluded his report with a detailed statement of the-amount to be contributed by the devisees and legatee respectively.
    The court, after exceptions, confirmed the report.
    The devisees appealed to the Supreme Court, and assigned the following errors:—
    I. The court erred in overruling the exceptions to the auditor’s report and in confirming the same, which exceptions and confirmation are as follows, viz.:
    1. “ The auditor erred in charging the devisees with the payment of any part of the debts.
    2. In not paying the debts out of the personal estate, viz.: the bank stock and the proceeds of the mill property. ■
    3. In appropriating to Mary Rea all the bank stock, she having received one-half of the same, and in allowing her the amount loaned and paid to Henry Barckley, and charged to Elizabeth Barckley.
    4. In allowing interest from 30th December 1862, to an indefinite period.
    5. In allowing interest on Mary Rea’s legacy from a period before it was ascertained whether the legacy could be paid, there being no evidence of a tender of a refunding bond by her or any one for her.”
    II. The court erred in confirming the auditor’s report.

      A. A. Furman, for appellants. —
    The order to sell the mill was a conversion: Leiper v. Thomson, 10 P. F. Smith 177; Chew v. Nicklin, 9 Wright 84. A testator may charge his debts or such part of his estate as he pleases: Loomis’ Appeal, 10 Barr 387.

      R. W. Foumey, for appellee,
    cited Loomis’ Appeal, supra ; Hallowell’s Estate, 11 Harris 225.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

It was settled in England by Long v. Short, 1 P. Wms. 403, that specific devises of land and specific bequests of personalty must abate rateably in „?se of a deficiency of assets for the payment of the bond debts of the testator, because both lands and chattels were liable in law for those debts, and it was equally the intention of the testator that the legatee should have the chattel, and the devisee the land: 1 Roper on Legacies 254. In this state, where lands have always been assets for the payment of debts by simple contract as well as by specialty, the rule is general — that wherever there is a deficiency of assets ■ to pay both debts and legacies, specific devisees and specific legatees shall contribute proportionably. What is termed a demonstrative legacy partakes, in this respect, of the privilege of a specific legacy. A demonstrative legacy is the bequest of a certain sum of money, with a direction that it shall be paid out of a particular fund. It differs from a specific legacy in this respect, that if the fund out of which it is payable fails for any cause, it is nevertheless entitled to come on the estate as a general legacy, and it differs from a general legacy in this, that it does not abate in that class, hut in the class of specific legacies: 1 Roper on Legacies 153. It is settled by this court that in the marshalling of assets for the payment of the debts of a testator, specific devises of land abate proportionally with specific and demonstrative legacies: Barklay’s Estate, 10 Barr 387; Hallowell’s Estate, 11 Harris 223.

The legacy to Mrs Rea falls clearly within the class of demonstrative legacies. By the will the sum of $1200 was to be paid to her out of the proceeds of the mill property, and by the codicil she was to have in addition, out of the proceeds of the sale of the mill, bank stock, and other personal property, a sum sufficient to make her equal to her sister Elizabeth, in the amount which the testator had loaned and paid to her husband. There is certainly nothing in the will to evince a different intention. On the contrary, the testator carefully provides that if the sale of his mill property should not produce sufficient to pay the sums bequeathed to his daughters respectively, they were to be paid out of his estate in general; which strongly implies a preference and priority to them, and that their legacies were to be paid to them at all events: Duncan v. Alt, 3 Penna. Rep. 382. To apply any less favorable rule to Mrs. Rea than that which was adopted in this case would most clearly disappoint the intention of the testator, “ and cut up his plan of distribution by the roots.” While the other devisees and legatee would receive their bequests in full, the entire loss would fall on Mrs. Rea as effectually as if she had been a mere residuary legatee and postponed to them all.

The third assignment of error is contrary to Rule VI., 6 Harris 578, as it raises two different points, and is therefore a waiver of both. It may be observed, however, that the auditor reports that the amount of Mrs. Rea’s legacy, ascertained by him, is subject to any receipts for money or. any bank stock she may have received from the executors, and in truth the object of the reference was not to distribute the estate in the hands of the executors, but to ascertain how the balance found against it, and due to the accountants upon the settlement of the personalty, was to be made up. As to the charge of interest from the date of the sale of the mill property and bank stock, respectively, there is nothing in that of which the appellants have any right to complain. The amount of her pro rata contribution to the deficit is properly calculated on the sum due her at the testator’s death, as in the case of the others. The executors may have a right to require of her a refunding bond under the direction of the Orphans’ Court before the payment, but that is a subsequent matter. This disposes of the remaining errors assigned.

Decree affirmed, and appeal dismissed at the costs of the appellants.


source: Caselaw Access Project

author: Thompson, C. J. —

license: Public Domain

text:
    Franks Oil Company versus McCleary.
    1. The Act of July 1863 (for incorporating Mining Companies) does not make a transferee of stock personally liable to pay assessments.
    2. No implication of a personal promise of the transferee to pay assessments arises.
    3. The company can indemnify themselves only by a sale of the stock and pursuit of the original subscriber.
    4. from the voluntary payment of one assessment by the transferee, a promise to pay others cannot be inferred.
    5. Canal Co. v. Sansom, 1 Binney 70; Palmer v. Ridge Mining Co., 10 Casey 288 ; Merrimac Mining Co. v. Levy, 4 P. P. Smith 227; remarked on.
    November 16th 1869.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 220, to October and November Term 1869.
    This was an action of assumpsit, brought May 22d 1867, by the Franks Oil Company against William McCleary, to recover the sum of $125 assessments on stock in the plaintiffs’ company for which it was alleged the defendant was liable.
    In December 1864, a joint stock association was formed under the name of the Franks Oil Company: the capital being divided into shares of $100 each. H. T. Jaco subscribed for five shares, on which he paid an assessment of $12.50 each. On the 8th of April 1865, the directors made another assessment of $25 per share. On the 20th of May 1865, Jaco transferred two of his shares to the defendant, who paid the assessment of $25 on each of the two shares. On the 9th of June 1865, another assessment of $25 was made by the directors, and on the 11th of September a fourth assessment of $37.50 was made. On the 19th of September the defendant transferred his two shares to Philip Field. On the 30th of April 1866, the plaintiffs were incorporated under the General Act of July 18th 1863, Pamph. L. (of 1864), p. 1102. Section. 17 of the act provided that if the proprietor of any share neglected to pay an assessment for thirty days after it is payable, the treasurer might sell by auction a sufficient number of shares to pay all the assessments due, with the necessary charges thereon, &c.
    This suit was brought to recover the last two assessments on two shares amounting in the whole to $125.
    The plaintiffs asked the court to charge, that all the assessments on the McCleary stock being due and payable before the transfer to Fields, McCleary is liable; and further, that the payment by McCleary of the assessment of April 8th 1865, is an acknowledgment that he took the stock subject to unpaid calls.
    The court (Gilmore, P. J.) charged: “ We have no articles of association given in evidence in this case; we know nothing of the design, object or government of the association prior to its incorporation. They carried on for some years before they were incorporated. All the stock was subscribed; this transfer from Jaco to McCleary, and from McCleary to Fields, was made before the incorporation, which was on the 30th of April 1866. If you are satisfied that McCleary transferred his stock to Fields before the act of incorporation he was never a corporator, and not liable in this action. Again, if he is a member of the incorporation he was such member by transfer of stock, and not personally liable and could not be sued for the instalments unpaid. This is in answer to defendant’s first and second points, and renders it unnecessary to give you any further instructions. In answer to plaintiffs’ point, we say, that if we are correct in holding that defendant is not liable, any instruction on this point could have no bearing upon the case.”
    The verdict was for the defendant. On the removal of the case to the Supreme Court, the plaintiffs assigned the following errors:—
    The court erred:—
    1. In charging “If you are satisfied that McCleary transferred his stock to Fields before the act of incorporation, he was never a corporator and not liable in this action.
    2. “If he is a member of the incorporation, he was such member by transfer of stock and not personally liable, and could not be sued for the instalments unpaid.
    3. “ In not affirming plaintiff’s point.”

      JE. Campbell, for plaintiffs in error. —
    The original subscriber was liable, and his transferee is substituted to his liabilities* Merrimac Mining Co. v. Levy, 4 P. F. Smith 227; Angell & Ames on Corp. § 534; Highland Turnpike Co. v. McKean, 11 Johns.; Dutchess Cotton Man. Co. v. Davis, 14 Id. 238; Speer v. Crawford, 14 Wend. 20; Troy Turnpike & Railroad v. McChesney, 21 Id. 296; Birmingham, B. & T. Railroad v. Lock, 1 Q. B. 256; Harlem Canal Co. v. Seixas, 2 Hall 504; Small v. Herkimer Man. Co., 2 Comst. 330; Worcester Turnpike Co. v. Willard, 5 Mass. 80.

      T. B. Searight, for defendant in error.
   The opinion of the court was delivered, January 3d 1870 by

Thompson, C. J. —

There is nothing in the Act of the 18th of July 1863, under which the plaintiff was created a corporation, nor in any by-law of the company, or the precedent association out of which it was created, brought to our notice, which makes it an incident of receiving a transfer of assessable stock, that the holder thereof becomes personally liable to pay the assessments which may be made by the company. The cases of The Canal Co. v. Sansom, 1 Binn. 70, and Palmer v. The Ridge Mining Co., 10 Casey 288, show that this is not the case; that no implication of a personal promise arises therefrom. In those cases, as well as that in hand, the company could only indemnify itself by a sale of the stock, and pursuit of the original contractor with the company for the stock. If a company wish for more than this security, it ought to provide for it in the act of incorporation, or, perhaps, in the certificate itself. The defendant in this case received a transfer of the shares in question from the original subscriber to the association, and transferred them before the company was incorporated. It is not necessary to consider whether this would have any effect in the case; certainly it would not aid the company, nor does it hurt the defendant. Treating the case as if the company were incorporated at the time of defendant’s transfer, and it can ask no more, our judgment is, that no action lies against the defendant personally for the unpaid assessments called. Nor is it to be inferred from his voluntary payment of one assessment. The company was not injured, or he estopped by that. The case of The Merrimac Mining Co. v. Levy, 4 P. F. Smith 227, is not in conflict with these views. We decided that case on a Michigan charter, and considered ourselves bound by the decisions of their Supreme Court, otherwise as we said, “ some stockholders will be bound to pay instalments called, and others, standing in the same position, will not;” dependent on the forum administering the law in or out of the state.

We consider it unnecessary to examine the authorities referred to, in this respect, on both sides ofithe able arguments in this case, for we have the rule, which must govern us in our own cases, cited above. Seeing no error in the rulings of the learned judge complained of, we must affirm the judgment.

Judgment affirmed.


author: Agnew, J. —

text:
    Wood versus Bayard and Black.
    1. For the purpose of avoiding a deed to bar an entail, evidence is admissible to show that the grantor was non compos mentis, or that being weak minded was imposed on.
    2. A common recovery is by the judgment of a court of record, and the infancy or insanity of the party suffering it cannot be set up against the record!
    3. Such judgment is regular and valid until reversed, and cannot be impeached collaterally.
    4. A deed to bar an entail is a matter in pais.

    November 16th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Greene county: No. 171, to October and November Term 1869.
    This was an action of ejectment by Edward Wood against Thomas Bayard and William Black for 20 acres of land.
    The land in dispute was part of the real estate of Isaac Wood, deceased, who left to survive him three sons, John, Edward and Thomas and one daughter, Elizabeth. Isaac Wood by his will, proved April 9th 1852, devised part of his farm to Thomas and Elizabeth, adding: — “ If either of my children Thomas and Elizabeth, should depart this life without issue, his or her or their share or shares shall go to the other surviving brothers and sister, or as the case may be.” On the 2d of October 1858, Thomas Wood and Elizabeth Wood executed and delivered to Edward Wood, the plaintiff, a deed for the land devised to them, for the consideration of $800, “ and also for the purpose of barring the estate tail.”
    The deed was duly acknowledged by the grantors before a justice of the peace on the day of its date, and on the 27th of the same month, on motion of E. Sayers, Esq., in open court, “ was duly ordered to be entered among the records thereof in the manner commonly used with respect to sheriffs’ deeds, in pursuance with the Acts of Assembly relating thereto, entitled an act to facilitate the barring of estates tail — which is accordingly so done in sheriff’s deed book.”
    The land in dispute is part of the tract mentioned in the deed. The defendants are in possession under John Wood, one of the brothers of Thomas and Elizabeth.
    The plaintiff having closed his case, the defendants offered to prove “ the incapacity of the grantor to make a deed for any purpose, at the time this deed was executed, and before that date and since.
    “ The plaintiff objected to the evidence on the ground that no evidence can be received to show incapacity in making a deed to bar an estatetail.” Thé court (Gilmore, P. J.) admitted the evidence, saying: — “ We think it competent for the defeat of the deed barring the estate tail, to show either that Elizabeth was non compos mentis at the time the deed was made, or that being weak minded she was imposed upon.” A bill of exceptions was sealed for the plaintiff.
    A number of witnesses were examined as to the capacity of Elizabeth, and the jury rendered a verdict for the defendants.
    The plaintiff took out a writ of error and assigned for error the admission of the evidence.

      R. W. Downey, for plaintiff in error,
    cited Act of January 27th 1749-50 § 1,1 Smith’s L. 203, Purd. 421 pi. 1; Sharp v. Thompson, 1 Whart. 139; 2 Black. Com. 361; Mansfield’s Case, 12 Rep. 123; Snowden v. Dunlavy, 1 Jones 522; Dunwoodie v. Reed, 3 S. & R. 435; Lyle v. Richards, 9 S. & R. 322.

      A. A. Furman. (with whom were Wyly $ Buchanan), for defendants in error,
    cited Lyle v. Richards, supra; 1 Story’s Eq. J. § 220 ; 1 Fonblanque’s Eq. 47, 38, n.; Addison v. Dawson, 2 Vern. 678; Clerk v. Clerk, Id. 413; Wilkinson v. Brayfield, Id. 307; Colby v. Smith, 1 Id. 205; Sawyer v. Vernon, Id. 390.
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

The second section of the Act of 16th January 1799, 3 Smith’s Laws 338, made for the purpose of barring entails, enacts that, “ such conveyances and confirmation shall be good and available to all intents and purposes, against any person or persons claiming by virtue of such estate tail or in remainder or reversion after such estate tail, as such grantor, bargainor or vendor might or could have debarred by any mode of common recovery, or by any ways and means whatsoever, previously to such grant, bargain, sale or conveyance any law or usage to the contrary notwithstanding.”

The plaintiff in error argues and cites abundant authority to prove that a common recovery suffered by an infant or a lunatic is effectual against himself and his heirs, and thence draws the conclusion that the Act of 1799 places a deed duly executed, acknowledged, approved and recorded, on the same footing as a common recovery. As to the effect of a valid deed this is true, but that is not the question before us. The court received the evidence, to which exception was taken, to prove the incapacity of the grantor to make a deed; and the true question is whether the making of a deed stands on the same footing as the entering of judgment in a court of record. The reason why the infancy or insanity of a party who suffers a common recovery, cannot be set up against it, is, that it cannot be done without attacking the iudgment of the court, which to every intendment is presumed to be regular and valid, until reversed or set aside in due course of law. The judgment of the court is the solemn act of a competent legal tribunal, and cannot be impeached collaterally. It is presumed to have had legal and competent parties before it. But a deed is an instrument in pais, and must have proper parties able to contract and be contracted with. An essential element of this competency, is, that the party be of sane mind. Without this the writing is not his deed, and can be avoided under the plea of non est factum. The defect therefore lies behind the act of executing the writing; and the purpose of the evidence was not to deprive the instrument, as a good deed, of its statutory operation and effect, but was to show that it never had any legal existence whatever as a deed. There was no error therefore in receiving the evidence and the judgment is affirmed.


author: Sharswood, J. —

text:
    Downey versus Tharp.
    1. An obligor cannot defalcate against the assignee of an assignee a claim which he holds against the first assignee.
    2. Denman gave a sealed note to Downey, who afterwards gave a sealed note to Tharp. Tharp assigned his note when over due to Denman; who assigned it to Sayers ; Downey could not set off against Sayers his note from Denman.
    3. The note being over-due when assigned was not enough to put Sayers on inquiry of the makers as to the transactions between Denman and Downey.
    4. Sayers took the risk of equities and set-off between Downey and Tharp, but not those of subsequent holders.
    5. An equitable defence, e. g., failure of consideration, is necessarily from transactions between the original parties.
    6. If Denman had sued whilst he held the note to Tharp, his note held by Downey would have been set-off.
    7. Blair v. Mathiott, 10 Wright 2G2, recognised.
    November 16th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Greene county: No. 201, to October and November Term 1869.
    This was an action of debt by “ Abner Tharp for the use of Alpheus Denman, now for the use of executor of E. S. Sayers, deceased,” against R. W. Downey.
    The cause of action was the following note:
    “ April 6th 1861. Six months after date we promise to pay Abner Tharp one hundred dollars.
    “ Simeon Dunn, [l. s.]
    “ R. W. Downey, [l. s.]”

      The note was assigned by Tharp to Alpheus Denman, and by him assigned to E. S. Sayers.
    The defendant Downey proved that the note was assigned to Denman by Tharp about eighteen months after it was due, and that the defendant was but surety for Dunn. He gave in evidence also this note:—
    “ One day after date I promise to pay one hundred and twenty-three dollars to R. W. Downey for value received.
    July 20th 1857. “ A. Denman, [l. s.]”
    Downey held this note against Denman while he, Denman, was assignee of the note in suit.
    The court (Gilman, P. J.) directed the jury “ to return a verdict for the sum of $144.56, the amount of the note sued on with interest, with leave to the court, notwithstanding the verdict, to reduce the verdict, by deducting the amount of the Denman note, with interest, if the court should be of opinion that the defendant is entitled to have the same defalcated against the note in suit, by way of equitable defence or otherwise.”
    The court afterwards directed judgment to be entered on the verdict.
    This was assigned for error oh the removal of the case to the Supreme Court by the defendant.

      Black $ Purman, for plaintiff in error,
    cited Coke L. 14, 347; Kuch v. Hall, Douglass 21.
    There was no argument for the defendant in error.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

There are no facts in this case which distinguish it from Blair v. Mathiott, 10 Wright 262, in which it was held that an obligor in a bond cannot defalcate against the assignee of an assignee, a claim which he holds against the first assignee. The learned counsel of the plaintiff in error do not question this decision, but admit that it rests upon a safe and sound interpretation of the law of defalcation. But they contend that what they set up is neither a set-off nor defalcation, but an equitable defence. It is not easy to understand how an equitable defence, such as failure of consideration, necessarily arises out of transactions not between the original parties. Had the action here been brought by Denman, the first assignee, his note, held by the defendant, would have been admissible only as a counter claim or set-off. Its consideration was in no way connected with that of the note sued on. The circumstance that the note was overdue when it was passed to Sayers was not enough to put him on inquiry of the makers as to matters of set-off with the intermediate assignee, any more than in the case of a negotiable note overdue as to matters of set-off between the original parties: Hughes v. Large, 2 Barr 103. He took the risk of equities and set-off between the makers and payee, and is not to be involved in the accounts of all the successive holders through whose hands it may have passed, with the original makers.

Judgment affirmed.


text:
    Johns versus Lantz.
    1. An accountant at the request of parties stated the accounts between them as to mill accounts and made the calculation in the presence of the debtor, it was read over to him, he was satisfied with the arrangement and ordered the aocountant as his agent, to go with the creditor and ascertain from a miller the price of grain ; he ascertained the price and the balance due ; after the mill accounts were settled they were to lie over till they had a settlement of their other accounts. Held, to be evidence for the jury of an acknowledgment to take the case out of the Statute of Limitations.
    2. To take a case out of the statute, the acknowledgment must be so distinct and palpable in its extent and form as to preclude hesitation.
    3. A naked admission of indebtedness, not indicating the amount or nature of the debt or a promise to pay something without a reference to the sum to be paid is insufficient.
    4. A clear, distinct and unequivocal acknowledgment of a debt as an existing obligation, identifying it so that there can be no mistake as to what it refers, made to a creditor or his agent, takes a case out of the statute.
    5. If a debtor and creditor in the presence of a witness examine their books and state an account, and the debtor assents to it, it would be such acknowledgment.
    November 16th 1869.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Grreene county: No. 167, to October and November Term 1869.
    This was an action of assumpsit brought, November 27th 1866, by Samuel Johns against Mary Lantz, administrator, &c., of Andrew Lantz, deceased.
    The pleas were non assumpsit, non assumpsit infra sex annos, &c.
    Andrew Lantz owned a flouring-mill. The plaintiff had been his miller for about four years, he was to have one-third of the tolls, and Lantz was to take Johns’s share of the tolls and pay him for them; the last item of the account was dated April 3d 1854.
    The plaintiff read the deposition of Dr. Samuel Dodd. He testified that in the early part of 1862 he was employed by Lantz to settle the mill books with the plaintiff. They ascertained the number of bushels Lantz had got, the price was to be fixed by Peter Brown’s mill books; the settlement was made in Lantz’s house and in his presence. Witness afterwards, on behalf of Lantz and Johns, examined Brown’s mill book. He made a calculation of the tolls taken by Johns and delivered to Lantz, which was put down on a paper. Witness testified : “ It (the calculation) was made out in presence of Mr. Lantz and read over by him; he was satisfied with the arrangement and ordered me as his agent to go with Mr. Johns to Hook’s and ascertain the prices of the grain at the same periods on Hook’s mill book. I went and Mr. Johns went with me, and we ascertained the prices of grain as directed; * * * the balance then ascertained was $153.11 in favor of Johns.” On cross-examination witness said, “ The mill books were to be settled, and when we settled the mill accounts it was laid over till they had a settlement of their other accounts.”
    In the winter of 1865-1866, after the death of Lantz there was a settlement by referees chosen by the parties between the plaintiff and. defendant. The balance on that settlement was for $200 in favor of the plaintiff. The account on the mill books was left out because they were lost, and the administrator was unwilling to settle without them. The copy of that account lacked the affidavit of Dr. Dodd as to its correctness. The parties agreed that when Dodd came home from the army and made affidavit that it was a true copy, that the defendant would pay the plaintiff the mill account.
    The defendants gave evidence in answer to the plaintiff’s case.
    The court (Gilmore, P. J.) charged that plaintiff’s claim was barred by the Statute of Limitations, and that the evidence if all believed, was not sufficient to relieve the case from the operation of the statute. The- evidence of Dodd in chief would not be sufficient and his own cross-examination shows that the amount coming on the mill book was nothing more than an item to be taken into account on a full settlement.
    The verdict was for the defendant.
    The plaintiff took a writ of error and assigned the charge for error.

      R. W. Downey, for plaintiff in error. —
    Here was a settlement made, a balance struck and the amount due ascertained: Cowan v. Magowan, Wall. 66.

      A. A. Furman, for defendant in error. —
    To take a case out of the ^statute the acknowledgment should be clear, unambiguous and express: Allison v. James, 9 Watts 381; Gilkyson v. Larue, 6 W. & S. 217; Suter v. Sheeler, 10 Harris 312; and without qualification : Kensington Bank v. Patton, 2 Harris 481; Morgan v. Walton, 4 Barr 322; Burr v. Burr, 2 Casey 284; Emerson v. Miller, 3 Id. 279; Weaver v. Weaver, 4 P. F. Smith 152; Harbolds v. Kuntz, 4 Harris 210; Shaffer v. Shaffer, 5 Wright 51. A promise by an administrator is not sufficient: Clark v. Maguire, 11 Casey 259.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

The decisions of this court apply very strict rules to acknowledgments to take a case out of the Statute of Limitations, and very rightly so. We mean to adhere to them in letter and spirit. The present state of the law was well summed up by our brother Agnew in one of the latest: “ In order to take a case out of the operation of the statute, the acknowledgment of the debt must be clear, distinct and unequivocal. It must be so distinct and palpable in its extent and form as to preclude hesitation. A naked admission of indebtedness, without anything indicating the amount or nature of the debt, or a promise to pay something without a reference to the sum to be paid, is insufficient:” Wolfsenberger v. Young, 11 Wright 516. No case, however, has ever gone the length of saying that there must be an express promise to pay in terms, and unless we are prepared to go that length we must reverse this judgment. To hold so we must overrule Hazlebaker v. Reeves, 2 Jones 264, and Davis v. Steiner, 2 Harris 275, in.both of which acknowledgments without a promise were sustained, and the acknowledgments themselves by no means so clear, distinct and unequivocal as that presented on this record. What shall be done with the many cases in which the rule of law has been stated in terms which either expressly, or by clear implication, exclude the necessity of a promise to pay ? Cowan v. Magowan, Wall. 65; Fries v. Boisselet, 9 S. & R. 128; Eckert v. Wilson, 12 Id. 393; Bailey v. Bailey, 14 Id. 195; Gilkyson v. Larue, 6 W. & S. 213. It is still the law that a clear, distinct and unequivocal acknowledgment of a debt as an existing obligation, identifying it so that there can be no mistake as to what it refers to, made to the creditor or his agent, takes a case out of the statute. A debtor and creditor sit down together, in the presence of a witness, examine their books, and state an account of the several items of indebtedness in writing, and the debtor assents to it as correct. Would it add anything to the force of this transaction if he added, “ I promise to pay you this amount ?” Yet that is exactly this case upon the testimony of the witness, Dr. Dodd. It does not vary it that the prices of the grain were not ascertained at the time. The decedent expressly authorized Dr. Dodd to ascertain them, at the same periods, from the mill book of a neighboring mill, which he did. Nor does the fact stated by the witness, “ when we settled the mill account it was laid over till they had a settlement of the other accounts,” in any degree disturb the clear, distinct and unequivocal character of the acknowledgment. At most it was an agreement to postpone the payment until those other accounts were settled. Those other accounts were settled with the executors, leaving out the mill account in question, and the reason it was not included was that the mill books were lost and the executors were unwilling to admit the copy produced, without an affidavit of its correctness by the witness, Dr. Dodd, who was then absent in the army. We think that the evidence should have been submitted to the jury.

Judgment reversed, and venire facias de novo awarded.


text:
    Neff et al. versus Horner.
    1. A voluntary alteration of a bond, note or other instrument under seal in a material point, to the prejudice of the maker, avoids it unless done with the assent of the parties to be affected.
    2. The rule as to commercial paper is more stringent, the burden being on the holder to disprove an apparent material alteration on the face of the paper.
    3. Worrell v. Gheen, 3 Wright 288, is an exceptional case.
    4. A spoliation by a stranger or accidental alteration through mistake, leaves the instrument as effectual in law as it was before.
    5. Pennington, and others as his sureties, executed a sealed note to Horner ; when brought to Horner he would not receive it unless “ interest semiannually” were added. Pennington inserted these words above the signatures, without the knowledge of the sureties. Held, that the whole note was avoided as to the sureties.
    6. The ground of the rule that alteration avoids an instrument is public policy to insure the protection of the instrument from fraud and substitution.
    7. The purpose of the rule is to take away the motive for alteration by forfeiting the instrument on discovery of the fraud.
    8. In a case in which the question was a material alteration of an instrument, aplea of non est factum was filed, but not noted on the judge's trial list. The case proceeded till the charge, as if the plea had not been filed ; the court refused then to take notice of the plea. Held to be error.
    November 16th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Greene county; No. 216, to October and November Term 1869.
    This action was in debt by Samuel Horner against John Neff, Joseph Dougherty, Thomas Wiley and Thomas Curl, on the following note:—
    -November 13th 1865. One year after date we or either of us promise to pay to Samuel Horner the just sum of Five Hundred Dollars in seven thirties for value received of him, whereunto witness our hands and seals.
    Interest to be paid semi-annually.
    Jacob A. Pennington, [l. s.'
    John Need, [l. si
    Joseph Dougherty, [l. si
    Thomas Wiley, [l. si
    Thomas Curl, [l. si
    The pleas were non est factum, nil debet and payment with leave, &c. The plea of non est factum, was not entered at the time of trial on the trial list prepared by the prothonotary for the judge; the parties proceeded in the trial until the charge, as if the plea had not been filed.
    On the trial before Gilmore, P. J., the plaintiffs gave the note in evidence and rested.
    The defendant called Jacob A. Pennington, who testified, that he was principal in the note and the other obligors his sureties; that the words “ Interest to be paid semi-annually” were not in the note when the sureties signed it; there was no understanding that the interlineation was to be made. When the note was delivered to the plaintiff the interlineation was not in it.
    The plaintiff testified in rebuttal that he saw Pennington write the interlineation; that he, plaintiff, would not take the note until he had done so. Pennington told him he was at liberty to write it, that it was so understood by the bail. There was other evidence that the interlineation was made after the execution of the note; there was no evidence that it was made with the consent of the sureties.
    The plaintiff’s first point was :—
    “ Under the pleadings in this case the execution of the note on which suit is brought, and the plaintiff’s cause of action as set forth in the declaration which recites the note, are admitted, and that all the evidence in relation to the words ‘ interest to be paid semi-annually’ is not to be taken into consideration by the jury.”
    The defendants’ points among others were:—
    “ 1. The alteration of the note by adding the words ‘ interest to be paid semi-annually,’ is a material alteration.”
    2, 3 and 4. Asserted that the alteration although made by Pennington was not binding on the sureties unless made with their consent.
    “ 7. The parties having gone on with the investigation of the question of the making of the alteration of the note, and each party having given evidence bearing on the question, the plaintiff cannot on the argument to the court raise the objection that such evidence was properly admissible only under the plea of non est factum, and that such plea not being in the question of the alteration, cannot be considered. Under these circumstances the court ought to disregard the objection, or permit the proper plea to be put in now.”
    Answer: “The body of the note as executed by defendants was not the subject of evidence; all that was investigated was the alteration. We cannot allow the plea of non est factum to be put in after the note is received in evidence and the case is closed; and we so noted when the request was made at the moment the counsel were proceeding to address the jury, and after all the evidence had been given, and the note received in evidence.”

      “ Note by the court: While the court was charging the jury, it was discovered that the plea of non est factum was actually in, but not on the judges’ docket. The court were now requested to take notice of this, but refused to do so for the reason that, the trial had been conducted on different pleas.”
    The court (Gilmore, P. J.) charged: * * *
    “ The first points made by the plaintiff involve the same matter. The pleading in the case admits the execution of the note, and under the plea of payment with leave, nothing but equitable matter can be alleged as defence. This alteration, as it is called, is not obligatory on the defendants unless they consented to the alteration. This consent is denied on oath by defendants, and is not proved by the plaintiff, and no recovery'can be had for any interest on the note before it became due. But if the plea non est factum had been put in, we would have held in answer to the defendants’ first and second points, that the alteration would not have affected the obligation of defendants to pay the note, as it was when they executed it. It appears if the evidence of Horner is r.elied on, that when the note was brought to him, signed by all the defendants, he would not receive it unless it contained an obligation to pay the interest semi-annually. Pennington then informed him that he had authority to add this, and did so, by making this alteration or memorandum, whereupon Horner gave him the money or bonds. It is true, Pennington denies this, and the defendants on oath say they gave no such authority. Now this writing below the body of the note is not an interlineation, nor in the judgment of the court is it an alteration of the body of the note, which had already been executed, signed and sealed, but a mere side memorandum which might as well have been on the back of the note. It is sufficient in our opinion, that it should be ruled that it is no part of the note, and that the plaintiff can derive no advantage from it. This we think, where no fraud was intended, is sufficient; the plaintiff gains nothing, and the defendants lose nothing, and we see no reason to be forced to say that the memorandum is a part of the obligation and releases the parties from an obligation admitted to be fair.” * * *
    The verdict was for the plaintiff for $503.37.
    The defendants took a writ of error and assigned for error : — the charge; the answer to their 7th point; and “not allowing the defendants the full benefit of the plea of non est factum, when it was discovered to be a part of the record in the case.”

      A. A. Furman (with whom were Wyly $■ Buchanan), for plaintiffs in error. —
    The alteration was in a material part and the note was void: Babb v. Clemson, 10 S. & R. 419; United States Bank v. Russell, 3 Yeates 391; Miller v. Gilleland, 7 Harris 120; Marshall v. Gougler, 10 S. & R. 164; Henning v. Werkheiser, 8 Barr 518; Byles on Bills 475; Warrington v. Early, 2 Ellis & B. 762; 2 Parsons on Bills, 545; Addison on Contracts 1083, 1084. The record as to the plea might have been amended: Smith v. Hood, 1 Casey 220.

      P. W. Downey, for defendant in error. —
    The alteration could not be shown except under the plea of non est factum: Piggott’s Case, 11 Rep. 27. The application for amendment was too late : Ridgely v. Dobson, 3 W. & S. 118; Hartman v. Keystone Ins. Co., 9 Harris 474. The plaintiff was not allowed to recover more than the sureties were bound for by the note as they signed it: Worrell v. Gheen, 3 Wright 388.
   The opinion of the court was delivered January 31st 1870, by

Agnew, J. —

It seems to be settled that a voluntary alteration of a bond, note or other instrument under seal, in a material part, to the prejudice of the obligor or maker, avoids it; unless done with the assent of the parties to be affected by it: 1 Greenleaf’s Ev. § 565; Marshall v. Gougler, 10 S. & R. 164; Barrington et al. v. Bank of Washington, 14 S. & R. 422-3; Foust v. Renno, 8 Barr 378; Henning v. Werkkeiser, Id. 518; Smith v. Weld, 2 Barr 54. Such a wilful act differs from spoliation by a stranger, or accidental alteration done through mistake, where the instrument remains effectual in law, as it was before alteration: 1 Green-leaf’s Ev. §§ 566, 568.

In respect to hills, notes and other commercial paper, the rule is even more stringent, the law casting on the holder the burthen of disproving any apparent material alteration on the face of the paper: Stephens v. Graham, 7 S. & R. 505; Simpson v. Stackhouse, 9 Barr 186; Paine v. Edsell, 7 Harris 178; Miller v. Reed, 3 Casey 244.

The only Pennsylvania case that seems to run against this strong current of authority is Worrell v. Gheen, 3 Wright 388, but it is plainly exceptional. The opinion declares on the general principle strongly, but makes the case an exception on the ground that the plaintiff had no hand in the alteration, and because the case being stated for the opinion of the court, they were met by no discrepancy between the allegata and probata. How far the grounds of distinction may be deemed satisfactory, it is of no importance, for it is sufficient that the case is made an exception expressly.

In the present instance, however, the plaintiff, who was examined on his own behalf, admitted that Pennington, the principal in the note, made the addition in his presence. He saw him do it. He would not take the note till Pennington did so. The latter said he had authority from his sureties, but this was untrue. The alteration was not accidental, and the plaintiff, though guiltless of the fraud, was foolish to accept a note he himself saw altered by the principal without being certain he had authority to bind his sureties. The alteration was material, for it added interest to the principal. It was not out of the way, so as to be no part of the note, for its position at the foot of the note, and by way of continuation, would have bound the sureties to the payment of interest, had there been authority from them to write it there. It was material in the eyes of the plaintiff, for he refused to take the note without interest added to it, and brings the suit upon it in this altered state. The note was, therefore, avoided as to the sureties, and the court erred in holding that the plaintiff could recover the principal from all the parties, disregarding his claim for the interest. It is argued that a recovery of the principal sum does no harm, for to that extent the sureties bound themselves. But the conclusive answer is that stated by Mr. Greenleaf, supra, § 565. The ground of the rule is public policy to insure the protection of the instrument from fraud and substitution. The writing goes into the hands of the party who claims its benefit, and the purpose is to take away the motive for alteration, by forfeiting the instrument on discovery of the fraud. When the sureties signed it they had a right to have it delivered unaltered to the plaintiff. He was bound to know that the alteration was rightfully done, and that the penalty of his negligence, or his wrongful act, was a loss of the security.

As to the plea of non esi factum, there ought to have been no difficulty. The plea was already on the record, and it Avas the mere oversight of the clerk that it,did not appear on the judges’ trial list. Consequently, when informed of the fact the plea should have been allowed its proper effect; and if the court thought the plaintiff was taken by surprise, a juror might have been withdrawn, or such order made as would prevent injustice. But as the case was- submitted, a wrong was done to the defendant, which could be repaired only by a new trial; for the effect of disregarding the plea of non est factum, on the record, was to deprive the defendant of a defence which struck at the very marrow of the plaintiff’s case.

Judgment reversed, and a venire facias de novo awarded.


text:
    Hamilton versus Porter and Wife.
    1. A devise was “ Hamilton is to take the 100 aeres of land at my death, and pay $700 to each of my within-named heirs,” &c. Held, that the legacies were not charged on the land.'
    2. Hamilton having accepted the devise became personally liable for the legacies, and they could be recovered in assumpsit.
    3. The case was not within the jurisdiction of the Orphans’ Court under the Act of 24th February 1834, sect. 59 (Legacies Charged on Land).
    4. Legacies payable by a devisee bear interest from the time of the acceptance of the devise on the terms of the will.
    5. From the time of acceptance, when there is no clog or condition imposed on the possession or enjoyment, the devisee’s title takes effect.
    6. The devisee is entitled to immediate possession unless the land be held under an outstanding lease, and then he is entitled to the rents, &c., as landlord.
    7. The rule that legacies are not payable till the end of the year and do not bear interest till then, does not apply to legacies charged on the person of the devisee.
    November 16tb 1869.
    Before Thompson, C. J., Read, Asnew, Sharswood and Williams, JJ.
    Error to tbe Court of Common Pleas of Mercer county: No. 99, to October and November Term 1868.
    On tbe lltb of January 1868, David Porter and Charlotte bis wife in ber right, brought an action of assumpsit, against Simeon H. Hamilton. Tbe cause of action arose under a codicil to the will of James Moore, deceased, dated September 7th 1864. Tbe clause on which the plaintiffs’ claim is based is as follows :—
    “And further I will that Simeon H. Hamilton.is to take tbe within-mentioned 100 acres of land, situate in Delaware township, Mercer county, Pa., at my death, and pay $700 to each of my within named heirs, Charlotte, Maria Jane, Nancy, Mereby and Isabella.”
    Charlotte named in this clause is the plaintiff in the suit. On the 24th of August 1866 the testator had been declared a lunatic. His committee, on the 24th of January 1866, leased his land to James Buckley on the shares, for one year, commencing April 1st 1866, part of the house being reserved for the testator. He died on the 31st of March 1866. Buckley went into possession April 1st 1866, and on 4th or 6th April 1867 the defendant took possession of the land under the Landlord and Tenant Acts, Buckley having held it under instructions given by the heirs, including the plaintiff, as long as he could. As owner of the land, the defendant demanded the rent from Buckley; one of the executors received part of the rent; the defendant said it did not make any difference whether he or the executors received the rent. The executors, under advice of counsel, collected the rent. The estate of the testator was unsettled; there was no personal estate of the testator not disposed of, and it would require more than the personal estate to pay the debts. About the 1st of April 1867 the defendant tendered to the plaintiff $700 as the amount of her legacy; she refused to take it. On the trial of the case, January 24th 1868, the defendant paid $700 into court in pursuance of the tender.
    The defendant’s points were:—
    1. Under the provisions of the will of James Moore, and the evidence that the estate of James Moore is unsettled, and that a considerable amount of debts against said estate remain unpaid, for which there are no assets except the farm devised to S. H. Hamilton, the plaintiff cannot recover.
    2. If the plaintiff is entitled to recover he is not entitled, under the evidence in this case, to recover interest until after one year from the death of the testator.
    3. Under the evidence of the tender in this case, and the payment of the money into court, the plaintiff is not entitled to recover interest and costs in this case.
    4. That under all the evidence in the case the plaintiff is:< not entitled to recover.
    The court (Yincent, A. J., of the Sixth District) charged: * * *
    “The defendant does not deny that he owes the $700, but claims that he ought not to pay interest until after one year from the testator’s death, and that he then made a tender of all that was due the plaintiff, which he now brings into court for her.
    “We are of the opinion that the defendant under the devise to him was entitled to the possession of the land at the death of the testator, and that the possession of the tenant was his possession, and he was entitled to the rents and profits, and therefore liable for interest on the legacy to the plaintiff, Mrs. Porter.
    “ The fact that Mrs. Porter was contesting defendant’s right to possession did not prevent him from making a tender, and thus stopping interest, but he made no tender until one year after the death of testator. To make a tender good, the whole amount due must be tendered, and an insufficient tender need not be accepted, and is not good. As we are of the opinion that the plaintiff was entitled to interest on her legacy, it is clear that $700 was not a sufficient tender.
    “We are of opinion that the legacy was not a charge on the land, and that this suit is properly brought in this court.”
    The verdict was for the plaintiff for $793.80.
    The defendant took out a writ of error, and assigned as error, that the court erred:—
    “ 1. In charging the jury, that the Court of Common Pleas had jurisdiction of this suit.
    “ 2. In charging the jury that the plaintiffs were entitled to recover interest from the death of James Moore.”

      W. Stewart (with whom were S. Griffith and H. Robinson), for plaintiff in error.
    — Legacies do not bear interest until one year from testatrix’s death: Hilyard’s Est., 5 W. & S. 31; Bitzer v. Hahn, 14 S. & R. 232; Eyre v. Golding, 5 Binn. 475. The legacies were a charge on the lands: Holliday v. Summervill, 3 Penna. R. 533. The jurisdiction for the collection of the legacy is exclusively in the Orphans’ Court: Act of February 24th 1834, § 59, Pamph. L. 84 Purd. 304 pl. 192. Even before the Act of 1834, the executor should be joined with the devisee: Brown v. Furer, 4 S. & R. 217; Gause v. Wiley, Id. 509; Montgomery v. Cooke, 6 Watts 238; Montgomery v. McElroy, 3 W. & S. 372.

      J. Pearson, for defendants in error. —
    The Act of February 1884, § 59, relates only to legacies charged on land: Downer v. Downer, 9 Watts 60; s. c., 9 Barr 302. This legacy is not charged on the land : Brandt’s Appeal, 8 Watts 198; Miltenberger v. Schlegel, 7 Barr 241; Montgomery v. Cook, 6 Watts 238; Same v. McElroy, 3 W. & S. 370; Dewitt v. Eldred, 4 Id. 423; Hackadorn’s Appeal, 1 Jones 86. The non-joinder of the executor not having been raised below nor assigned for error, cannot now be considered: Gregg Township v. Jamison, 5 P. F. Smith 468.
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

0It is clear this legacy is not á charge on the real estate devised by the testator to Simeon H. Hamilton; no such intention is discoverable in the will of James Moore: Brandt’s Appeal, 8 Watts 198; Miltenberger v. Schlegel, 7 Barr 241; Montgomery v. McElroy, 3 W. & S. 370; Dewitt v. Eldred, 4 Id. 414. The case, therefore, did not fall within the jurisdiction of the Orphans’ Court under the 59th section of the Act of 24th of February 1884. It is equally clear that, by the acceptance of the devise, Hamilton became personally liable for the legacies, and that their payment could be enforced by an action of assumpsit in the Court of Common Pleas: Lobach’s Case, 6 Watts 167; Montgomery v. McElroy, 3 W. & S. 372; Hoover v. Hoover, 5 Barr 351; Mohler’s Appeal, 8 Barr 26; Hackadorn’s Appeal, 1 Jones 86.

The legacies bear interest also from the time of the acceptance of the devise upon the terms of the will. This grows out of the nature of the liability assumed by the acceptance of the devise. From the time of acceptance in such a case as this, where no clog or condition is imposed upon the possession or enjoyment of the land devised, the devisee’s title takes effect. He is entitled to the immediate possession, unless it is held under an outstanding lease, and then he is entitled to the rents and issues of the land, as landlord, by the operation of the will. Such sums charged by a testator on the person of his devisee are not pure legacies as those are which the executor must pay, and, therefore, are not within the general rule that legacies are not payable until the end of the year and do not bear interest until then. There is no estate to be settled by the devisee and no reason for delay. As soon as he accepts the devise he assumes the burthen, and is also entitled to the profits of the estate he accepts, when not encumbered by the testator by other provisions. Hamilton claimed the possession of the land soon after the testator’s death, and claimed the rent of Buckley, the tenant. There was no doubt of his acceptance of the devise immediately after Moore’s death. The fact that the heirs of Moore resisted Hamilton’s right to possession does not alter the case, unless it had been done by the plaintiffs to his detriment. Of this there appears to be no evidence.

The judgment is therefore affirmed.


text:
    Meason versus Kaine.
    1. Kaine, Cope and Meason agreed to buy land together; the articles with the vendee were by agreement in the name of Kaine and Cope, who paid all the purchase-money. In a suit by Kaine against Meason to recover his proportion of the purchase-money, Cope was not a competent witness for Kaine.
    2. Where a person is primé facie liable on a contract, he cannot be a witness to prove that he was acting as agent.
    3. When a partnership is limited to one transaction, assumpsit may be maintained by one of the parties against the other.
    4. The contract was valid under the Pennsylvania Statute of Frauds, for the breach of which the defaulter would be liable in damages.
    5. The two might recover from Meason for his refusal to pay -his proportion of the purchase-money, the measure of damages being the difference between the price he had agreed to pay and the present market value of the land.
    6. An equitable interest is an interest in land which is within the words and spirit of the Statute of Frauds.
    7. The vendor under articles in this case was a trustee for the vendees, a verbal assignment or agreement to assign before the equitable interest was complete, was as much within the spirit of the statute as afterwards.
    8. A vendor cannot maintain an action to recover the purchase-money on a verbal agreement of sale.
    9. In an action on a verbal contract by the vendee against the vendor, the jury cannot give a conditional verdict to be released on the payment of the purchase-money.
    10. One of the fundamental principles in bills for specific performance is that there must be mutuality of remedy.
    11. Equity does not in general enforce contracts to enter into a partnership.
    12. Land bought or improved by partnership funds is treated as partnership property between the parties.
    November 17th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

      Error to the Court of Common Pleas of Fayette county: No. 32, to October and November Term 1869.
    This was an action of assumpsit, brought to June Term 1867, by Daniel Kaine against Alfred E. Meason. It was for the recovery of the one-third, the defendant’s proportion, of the purchase-money paid by the plaintiff for a farm which had been bought by the plaintiff, defendant and Eli Cope on joint account, the articles with the vendor by agreement between the three purchasers having been taken in the name of the plaintiff and Cope only: the object of the purchase was to resell the land on speculation.
    On the trial, January 21st 1869, before Gilmore, P. J., the plaintiff offered Eli Cope as a witness.
    He was objected to on the ground of interest, admitted by the court, and a bill of exceptions was sealed.
    Cope testified that in December 1865 the defendant requested him to join him in the purchase of the “ Shoaf farm the witness agreed to do so if the plaintiff would join with them in the purchase. The agreement was that it should be bought for the plaintiff, defendant and witness, each one-third. The article was to be in the name of the plaintiff and witness, because it was thought the defendant could make sale of the property better if his name was left out.' The article was drawn by the defendant, signed by Shoaf, Kaine and witness, and witnessed by the defendant. He went to Philadelphia to sell the land, but was not successful.
    The agreement for the purchase of the land was dated December 23d 1864, “ between James Shoaf, of the first part, and Eli Cope and Daniel Kaine of the other part, witnesseth that the said James Shoaf doth by these presents sell to Eli Cope and Daniel Kaine the farm bought by said Shoaf from Felix Hempstead. * * Cope and Kaine agree to pay the amount paid by said Shoaf to said Hempstead back to said Shoaf, and also to assume said Shoaf’s payment to said Hempstead, i. e. to pay the remainder back not already paid to Hempstead, according to article of agreement, between said Shoaf and said Hempstead. And also to pay $3000 to said Shoaf. Now the payment of the amount paid by said Shoaf to Hempstead is to be made on April 1st, A. D. 1864, to said Shoaf. Three thousand dollars also to be paid by said Cope and Kaine on the first day of April, or at any time thereafter, on the demand of said Shoaf. This three thousand dollars is a bonus paid by Cope and Kaine for Shoaf’s bargain with Hemp-stead. Said Shoaf is to remain in possession of said farm until April 1st, A. D. 1866. Said Cope and Kaine are to have free ingress and egress to all the land at any time from the date hereof, for the purpose of boring for oil, salt or other minerals or for any purpose connected with the business of boring, digging, &c. Cope and Kaine agree not to disturb said Shoaf’s crops more than is necessary. The deed is to be made directly to Cope and Kaine by Hempstead, according to article between James Shoaf and the said Felix Hempstead. Said Shoaf is to pay no rent for the farm from the first day of April, A. D. 1865 to A. D. 1866,” &c. * *
    “ Witness our hands and seals of the said parties the day and year first above written.
    James Shoae. L. S.
    Eli Cope. L. S.
    D. Kaine. L. S.'
    “ Test:
    “ A. E. Meason.
    The plaintiff gave evidence that he had paid $3335.33 of the purchase-money.
    The court (Gilmore, P. J.), after stating the substance of the evidence, charged, “ if the evidence is relied upon by the jury, the plaintiff is entitled to recover the one-third of the money which he has proved he has paid, with interest on the said one-third, from the several times of payment,” &c.
    The verdict was for the plaintiff for $1251.90.
    The defendant took a writ of error, and assigned for error the charge of the court and admitting Cope as a witness.

      Campbell $ Willson, for plaintiff in error. —
    The action should not have been for the purchase-money, but for damages for breach of contract: 2 Saunders’ Pleadings & Ev., part 1, p. 532. This being a partnership, an action could not be maintained until a settlement of partnership accounts: Story on Partnership, §§ 219-221, 260. Under the Statute of Frauds the plaintiff cannot recover.

      C. B. Boyle, for defendant in error. —
    The contract is not between vendor and vendee, but between vendees; there is therefore nothing on the ground of the Statute of Frauds to prevent the plaintiff’s recovery: Stewart v. Brown, 2 S. & R. 461; Morey v. Herrick, 6 Harris 128; McKee v. Jones, 6 Barr 425; Rhine v. Robinson, 3 Casey 30; Beegle v. Wentz, 5 P. F. Smith 369; Black v. Moore, 1 Barr 344; Plumer v. Reed, 2 Wright 47; Reed v. Murray, 1 Jones 334; Finlay v. Stewart, 6 P. F. Smith 193. Cope had an interest in the question, but not in the case: 1 Greenl. Ev. § 389.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

Kaine and Cope made a written contract with Shoaf for the purchase of a farm. It was alleged by the plaintiff below that there was a verbal agreement between himself, Cope and Meason, the defendant, by which this farm was to be bought on joint account, in the names of himself and Cope, and the profits realized on á resale to be equally divided. Kaine having made-certain payments on account to Shoaf, brought this suit against Meason to recover contribution.

His principal, and perhaps only witness to prove this verbal contract was Eli Cope, the other party to the written articles with Shoaf. When offered for this purpose, he was objected to as incompetent, but admitted by the court. This constitutes the 3d error assigned, which we will consider first in order. If the effect of - a recovery by the plaintiff in this action would be to shift a part of his liability on the articles from himself to the defendant, he was clearly interested in the event of the trial. Primá facie his liability to Kaine would be to contribute one-half. Should he be thereafter, sued by Kaine on such liability, the verdict and judgment in this case for the plaintiff would be evidence in his favor to prove that as between him and Kaine he was responsible only for one-third. Where a person is primá facie liable on a contract he cannot be a witness to prove that he was acting as agent for the defendant, and thus throw the debt from his own shoulders on to another: Hickling v. Fitch, 1 Miles 208; Gilpin v. Howell, 5 Barr 52. In assumpsit for goods sold and delivered, there was evidence that the goods were sold to A., and it was proposed to call him as a witness to prove the case against the defendants, with whom it was alleged that he was in partnership, but it was held that he was incompetent on the ground that he was interested in procuring a verdict against the defendants, as in that case he would only be liable for a proportion of the debt: Ripley v. Thompson, 12 Moore 55. So in Purviance v. Dryden, 3 S. & R. 402, it was held on the same ground that a witness was incompetent who was offered by the plaintiff to prove that the witness had received the money for which the action was brought on account of a firm of which he and the defendant were partners. “ He is primá facie answerable for the whole,” said Tilghman, C. J., “and if the plaintiff fails in this suit he must pay the whole. The effect of his evidence, then, is to take half of the burden off his own shoulders, and throw it on the defendants.” To the same effect is Heckert v. Fegely, 6 W. & S. 139. We think there was error in the admission of the witness. This may not be very material, if he should live to another trial, as he will then undoubtedly be competent under the Act of April 15th 1869, Pamph. L. 30.

Assumpsit undoubtedly was the proper form of action. Assuming that there was a partnership between Kaine, Cope and Meason, it was limited to a single transaction, the purchase and sale of one particular farm or tract, and was not a general one in the purchase and sale of real estate. In such case assumpsit can be maintained: Brubaker v. Robinson, 3 Penna. R. 295; McFadden v. Erwin, 2 Whart. 37; Finlay v. Stewart, 6 P. F. Smith 183. This really seems to have been the only objection raised on the trial. The more difficult-and embarrassing one, whether the alleged verbal contract between the parties can be enforced by a recovery against Meason of his proportionate share of the purchase-money, under the Statute of Frauds, was not brought to the notice of the learned judge. It fairly arises, however, under the exception to the charge of the court as set forth in the 1st assignment of error, and as the case goes, back, it is our duty to consider it. The 2d assignment not being sec. reg. is to be treated as none.

No doubt this alleged verbal contract was a valid contract under our statute. An action might be maintained by the others against Meason to recover damages for his breach of it — his refusal to pay on demand his proportion of the purchase-money — in which action the measure of damages would be the difference between the price he had agreed to pay, and the present market value of one-third of the land: Bell v. Andrews, 4 Dall. 152; Ewing v. Tees, 1 Binn. 450; George v. Bartoner, 7 Watts 530; Ellet v. Paxson, 2 W. & S. 418; McDowell v. Oyer, 9 Harris 417. We ought also to lay out of view all the cases down to Murphy v. Hubert, 7 Barr 420, in which it was decided at last, though much I believe to the dissatisfaction of the profession, that a trust might be created in this state by a verbal agreement or admission of a grantee in an absolute deed, because the 7th section of the English statute, 29 Car. 2, c. 3, had not been re-enacted here. The 4th section of the Act of April 22d 1856, Pamph. L. 533, has now provided that all declarations or creations of trusts or confidences of land, and all grants and assignments thereof shall be manifested by writing signed by the party holding the title thereof. It would scarcely, I think, be pretended that if after the articles with Shoaf, Iiaine and Cope had made a verbal agreement to convey an interest in their purchase to Meason it could have been specifically enforced either by or against him. It would be in the teeth of the Act of 1856. It has been uniformly held that an equitable interest is an interest in land which comes within the words and spirit of the Statute of Frauds; and therefore where a vendee was in possession under articles, the vendor, though having the legal title, cannot recover it back by proving a verbal contract to resell it to him on different terms: Goucher v. Martin, 9 Watts 106. How can it vary the case that the verbal contract was prior to or cotemporaneous with the articles ? The vendor was a trustee for the vendees, and a verbal assignment or agreement to' assign before their equitable interest was complete, was as much within the spirit and words of the act as afterwards. Such an agreement cannot be enforced any more than a verbal contract for the sale of the legal title. Contracts for the equitable stand now beyond a doubt upon the same footing as contracts for the legal interest. Nothing then is better settled than that the vendor cannot maintain an action on a verbal agreement of sale to recover the purchase-money, for that would be practically to compel him to take the land and thus specifically enforce the agreement: Ellet v. Paxson, 2 W. & S. 418. Nor for the same reason in an action by the vendee against the vendor can the jury give a conditional verdict to be released on the execution and delivery of a deed: Irvine v. Bull, 4 Watts 287.

Unless Meason could have recovered in an equitable ejectment or by a bill in equity compelled a conveyance dr assignment of one-third of the equitable interest to him, it would manifestly be unjust and inequitable to oblige him to pay for and take it'. That would be altogether a one-sided contract. Had the purchase turned out an advantageous one, Kaine and Cope could have kept it and set Meason at defiance. Equity is pár't of the law of Pennsylvania. One of the fundamental principles adopted by courts of equity in bills for specific performance is that there must be mutuality of remedy-. Both parties must have a right to a decree; otherwise it would follow that the court would decree a specific performance when the party called upon to perform it might be in this situation that if the agreement was disadvantageous to him he would be liable to the performance, and yet if advantageous he could not compel it: Bodine v. Glading, 9 Harris 50. Kaine and Cope would be placed in a position to say to Meason: “ Heads we win, tails you losé.” This is exactly the case here,if, as we have seen, Meason could not have enforced the verbal agreement with Kaine and Cope that he should have an interest of one-third in the purchase. Shoaf certainly could not have compelled him directly to pay the price, how then can he be compelled indirectly in actions for contribution by Kaine and Cope ? Had there been any evidence by letter receipt or written acknowledgment the Statute of Frauds would have been satisfied, but there Was nothing but oral testimony to show that he had any connection with the transaction. We say nothing, of the fact that there was no assignment or declaration of trust tendered before or on the trial; because the evidence of Meason’s agreement that his name should not appear might be considered as waiving that, and because there can be no doubt that his payment of one-third of the purchase-money, whether voluntarily or under the compulsion of a judgment and execution, would raise a resulting trust in his favor. Such a tender therefore would not have helped the case. Had Kaine and Cope refused to recognise Meason’s right to an interest in the purchase, it would have been a simple breach of an unexecuted parol contract for which he could maintain an action to recover damages, the measure of which would have been the same as in an action by them against him — the difference between the price agreed, and the actual market value of his one-third of the land. This puts both parties upon the just footing of equality and mutuality.

If we consider this agreement as constituting a partnership I do not think that the result will be different. Equity does not as a general rule enforce contracts to enter into a partnership: Story on Partnership, § 189. It seems to me clear that a chancellor would not compel in any case specific performance of a verbal contract to enter into a partnership to trade in lands. No doubt land bought with or improved by partnership funds is treated as partnership stock between the parties. There may exist as to the subject-matter in such a case all the rights and liabilities which attach to members of a firm in other cases, and among them no doubt the liability to account and to contribute to losses. Further than this I do not understand any of the cases to have gone, at least in this state: McDermott v. Laurence, 7 S. & R. 438; Hale v. Henrie, 2 Watts 144; Brady v. Colhoun, 1 Penna. R. 140; Kramer v. Arthurs, 7 Barr 165; Coder v. Huling, 3 Casey 84; Lacy v. Hall, 1 Wright 360. In Brubaker v. Robinson, 3 Penna. R. 295, no question was raised upon the Statute of Frauds, and that case was before the Act of 1856. I do not pretend to say what the decision ought to have been upon the case presented upon this record before that act. It has had a controlling influence on the conclusion at which I have arrived. It will be seen from the course of reasoning that this judgment touches not the remedy but rather the pleadings. Whether the action against Meason and Kaine for breach of contract should be joint or several we are not called upon to decide. As all the parties are now competent witnesses it will make no difference in that respect, and it will be for the counsel of the plaintiffs to determine whether to discontinue this suit and bring a new action, or to amend the narr. by filing with the leave of the court an additional count in this.

Judgment reversed, and venire facias de novo awarded.

Thompson, C. J., dissented.


text:
    Kerr versus O’Connor.
    1. A failure on the part of a judge to reduce to writing his charge and answers to points is not assignable for error.
    . 2. In a joint action of trespass, the plea of “ not guilty” entered for both defendants, may be regarded as the several plea of each.
    3. The Act of April 14th 1851 (Dogs Killing Sheep), permits suit to be brought against all the owners of several dogs, which at one and the same time kill and wound sheep.
    4. All the owners are answerable for the act of killing.
    5. No scienter as to the disposition of the dogs need be shown.
    6. If dogs are kept, it is on the terms of paying for damage they may do in worrying sheep.

      7. Each owner is answerable for the whole damage done in which his dog is jointly engaged.
    8. The action would lie without proof of joint ownership of dogs when they did the mischief together. Per Thompson, C. J.
    9. Actual satisfaction is necessary to sustain the plea of “ accord and satisfaction.”
    10. A contract to pay at a future day the damages done, might be pleaded as a release or might avail as defence on the trial; but would not sustain the plea of accord and satisfaction.
    November 17th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams. JJ.
    Error to the Court of Common Pleas of Butler county: No. 85, to October and November Term 1869.
    This was an action of trespass under the Act of April 14th 1851, sect. 8 (Pamph. L. 712; Purd. 850 pi. 2), brought before a justice of the peace by Daniel O’Connor against John Kerr and William Kerr for damages on account of defendants’ dogs killing the plaintiff’s sheep. The defendants were father and son. The justice rendered judgment for the plaintiff and the defendants appealed. The declaration was in the usual form; the defendants pleaded “ not guilty” and “ accord and satisfaction.” The plaintiff gave evidence that in May 1866, two dogs were worrying the plaintiff’s sheep, the dogs went to the defendants’ houses; they lived on the same place, their houses were about 30 rods apart. There was evidence that the dogs shortly after the attack on the sheep were found at the house of John Kerr, one belonged to John and the other to William.
    The plaintiff gave evidence of the value of the sheep.
    The defendants gave evidence that the dogs which worried the sheep were not their dogs but dogs of other persons; that they had made a compromise with the plaintiff by which they agreed to give him seven lambs in the fall and that the suit was commenced before the time for delivering the lambs had arrived.
    There was much evidence on both sides in support of their respective allegations.
    The plaintiff’s first point was:—
    “ That if the jury believe from the evidence that the dogs of the defendants or either of them killed, worried or otherwise damaged the plaintiff’s sheep, the plaintiff is entitled, under the Act of April 1851, to recover damages to the amount of the injury sustained and proved, without any proof of scienter on part .of the defendants.”
    Answer: “We answer in the affirmative, with the same explanation we give in our answer to the sixth point of the defendants.”
    The defendants submitted these points:—
    “ 1. The defendants are sued as joint owners of the dogs.
    2. The declaration is against them as joint owners.

      3. If the jury find that the defendants are not joint owners of the dogs, the plaintiff cannot recover.
    4. If the jury find John Kerr owned one dog, and William Kerr the other, they are not then joint owners, and the plaintiff cannot recover against either defendant.
    5. If the parties before the suit was brought settled and compromised the matter in dispute between them, this suit cannot be maintained, unless they subsequently mutually rescinded the settlement.
    6. The plaintiff must allege and prove the scienter on part of defendants that their dogs were in the habit of chasing, worrying and killing sheep.”
    The court (McGoffin, P. J.) charged: * * *
    “ In answer to the first, second, third and fourth points presented by the defendants — we affirm them as true. And unless the injury complained of was one committed by the defendants jointly, and of which the plaintiff must make satisfactory proof, the plaintiff resting upon the act alone without such proof would not be entitled to recover against them jointly.
    “But as the defendants have set up the plea of accord and satisfaction and have been offering proof of such accord or agreement, if the proof sustains the plea it becomes immaterial and the defendants cannot now take advantage of the fact of whether the act was joint or several, as under that plea it becomes immaterial whether the original claim of the plaintiff was joint or several.
    “ The sixth point we will next answer and say to the jury that under the Act of Assembly of 14th of April 1851, it is not necessary for the plaintiff to prove the scienter, that is that the defendants knew their dogs were in the habit of worrying and killing sheep before the plaintiff’s sheep were killed and wounded, as all the law requires is proof of the fact, to the satisfaction of the jury, that the defendants’ dogs committed the injury complained of, which will entitle him to compensation to the amount of the injury sustained, which is a fact for the determination of the jury.
    “ In answer to the fifth point: — That if there was a controversy between the parties as to whether the defendants’ dogs had killed the sheep or committed the injury complained of — or a dispute as to the amount of damages the plaintiff was entitled to as a compensation therefor, and the parties compromised that difficulty, and there was an agreement that the defendants were to pay plaintiff so much, or to deliver in settlement thereof certain specific. articles of property, and the plaintiff agreed to accept the same in satisfaction of his claim — that would be a good accord under the defendants’ plea, provided this accord or agreement was executed, and that when so executed or delivered was to be in satisfaction of his claim. A mere offer to perform the accord or agreement, or a tender of performance or even a part performance and a readiness to perform the rest, will not be sufficient. There must be a full execution and satisfaction before the bringing of the suit, in order to prevent a suit by the plaintiff upon the original claim. And although the time for the delivery of the property in performance of the accord had not arrived at the time of the bringing of the suit, still that will not be sufficient reason for non-delivery of the property under the pleas of the defendants; because they plead both accord and satisfaction: full satisfaction must be made to the plaintiff, and he must accept it in discharge of his claim.”
    The verdict was for the plaintiff for $56.
    The defendants took a writ of error; they' assigned for error that the court erred:—
    1. In charging that the plea of accord and satisfaction enabled the plaintiff to maintain the action though the dogs were not jointly owned by the defendants.
    2 and 3. In not reducing the answers to the points to writing; not reading the answers to the jury; not delivering the points and ^answers to the.prothonotary to be filed; not filing the charge within thirty days of the rising of the court.
    4. In leaving to the jury the question of law whether the defendants were jointly liable.
    5. In charging that the defendants were jointly liable under the facts.
    6. In submitting to the jury, as an element of the joint liability of the defendants, the plaintiff’s allegations that the defendants were “aware of the propensity of their dogs to kill or chase sheep, and had neglected and refused to restrain them from running about at night.”
    7 and 8. The answer to the plaintiff’s first point, by which the question of fact whether the defendants were joint owners of the dogs, was submitted without evidence.
    9. The charge is uncertain, &c.

      23. M. Bredin, for the plaintiffs in error. —
    The answers to the points and the charge were not filed according to law: Acts of April 17th 1856, sect. 3, Pamph. L. 396, Purd. 164, pl. 155; February 24th 1806, sect. 254, Smith’s L. 276, Purd. 807, pl. 33; Wheeler v. Winn, 3 P. F. Smith 128; Downing v. Baldwin, 1 S. & R. 300. The plea of “ Not guilty” denied joint liability : Grould’s Pleading Ch. 5, p. 273, pl. 106, p. 281, pl. 117, Ch. 8, p. 430-435; Stephen on Pleading 273; Wilson v. Hamilton, 4 S. & R. 238; Lyon v. Marclay, 1 Watts 276; Bauer v. Roth, 4 Rawle 97. The defendants were not liable for the acts of the dogs of each other, they stood in no relation of liability for each other: Bard v. Yohn, 2 Casey 482; Klauder v. McGrath, 11 Id. 128 ; Little Sch. Nav. v. Richards, 7 P. F. Smith 142. He referred to Act of, 1851, supra, on the question of the scienter. The intention of the act as to joint liability is doubtful and it will not be inferred: Dwarris on Stat. 43; Borland v. Nichols, 2 Jones 43.
    There was no name of counsel to the paper-book of the defendant in error.
   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J. —

It must be admitted that the presentation of this case is very uninviting and unsatisfactory. Where the fault is we are not called upon to pronounce, but may hope it will be the last of the kind.

We have very often said that a failure on the part of a judge to reduce to writing his charge and answers to points, as required by Act of Assembly, is not assignable as error in the trial. Such failures the judge alone is answerable for, and not the suitor. Everything done may be all rightly and properly done on the trial of the cause, and yet the judge may neglect to file his charge in time. It would be something more than unreasonable to hold, that for this, a party entitled to maintain a judgment he has rightly obtained, shall be deprived of it without fault or error on the part of anybody, but by reason of something collateral to, and outside of, the case, and over which he had not a shadow of power to interfere. A moment’s thought would certainly save the trouble of assigning such matters for error. While we cannot correct such omissions on the part of judges, let it not be supposed we approve of them. So far as the assignments of error in this case relate to these matters, they are dismissed from further notice.

The defendants below, father and son, living quite near to each' other, owned two dogs, whether jointly or severally, does not appear in the testimony. These dogs, on a certain morning, together killed and wounded a number of the plaintiff’s sheep, and for this act of trespass the defendants were sued jointly, and they plead “not guilty” and “accord and satisfaction.”

On the trial the counsel for the defendants, amongst other things, propounded a point, that if the jury should find that the defendants were not joint owners of the dogs, the plaintiff could not recover. Also a point, that if the jury should find that one of the defendants owned one of the dogs and the other the other, the plaintiff could not recover against either. These points were distinctly and expressly affirmed by the court. The jury found against these hypotheses, viz., that the defendants were the several and not joint owners of the dogs. The points themselves contained negatives pregnant, upon which the jury doubtless founded their verdict. They found their ownership to be joint or common, and assessed the damages against them jointly. The plea was “ not guilty,” and although entered for them both, still it maybe regarded as the several plea of each, yet there was no severance in testimony. Indeed, the. defence turned on the question of the guilt of the dogs, and on another raised by the plea of “accord and satisfaction.” The jury were not to be expected to sever where the defence showed no severance. Neither of the defendants denied his ownership of the dogs so far as we can discover. But what of this ? The court charged just as the defendants requested on the point of joint'ownership, and no more need be said about it. /■ In my opinion the Act of the 14th of April 1851, is broad enough to permit suit against all the owners of several dogs, which ■n. together at one and the same time, kill and wound a flock of sheep. They are all answerable for the act of killing. No scienter need ■ be shown as to the disposition of the dogs. If dogs are kept by farmers they are kept on the terms of paying for the damage they . may do in worrying sheep. Each one is answerable for the whole damage done in which his dog is jointly engaged. f It would, indeed, seem to be rather in favor of the owner of a dog which has engage'd in killing sheep, that the owners of the dog’s confederates should be included in the same trespass. ^Under the statute, I think the action would lie without proof of joint ownership of dogs, where they have acted in concert, or perhaps, more properly \speaking, did the mischief together. Where it is done at several times, of course no such rule could exist. But the court did not go this far, and certainly there is nothing of which it ought to be complained of, by the plaintiffs in error on this point.

The ninth assignment of error and its specifications are all in contravention of the rules of this court regulating the assignments of error. I may remark, however, that there was nothing said by the learned judge, if I understand the charge, on the subject of the plea of'“accord and satisfaction,” which precluded either defendant from showing that he was not guilty of the trespass charged. He did say, that if the proof sustained the plea, it was not material whether the claim of the plaintiff was joint or several. This was a self-evident proposition. If the trespass had been compensated under an agreement of the parties, that would assuredly have ended all controversy, and then there would have remained no materiality in the question of several or joint liability. But the defendants complain that they were sued before the time had arrived for making satisfaction. If this were so, it at once disproves the plea, for that asserts both “accord” and “satisfaction.” Actual satisfaction is absolutely essential to sustain the plea. A promise to pay the damages done at a future day would, perhaps, not sustain it. Such a contract might be pleaded as a release of the original cause of action, or might avail as a defence on the trial, but it would not sustain the plea, of “ accord and satisfaction.” There is a satisfactory chapter on this subject in 1 Wilson’s Bac. Abr., p. 41; see also 3 Chitty’s Blackstone, 42, n.; Blackburn v. Ormsby, 5 Wright 97; Hearn v. Keihl, 2 Wright 147. There was no error in this portion of the charge, if we understand it aright. We have looked over this ragged case with care, and as presented see no positive error, while confusion and disorder are apparent at every step. Upon the whole, however, we see no reason for reversal, and therefore the judgment is affirmed.