text:
    QUIGLEY’S CASE.

      An assessment of damages upon a petition for the appointment of “proper persons to view and adjudge the value of so much improved land as was taken up for the use of a turnpike road,” cannot be sustained. The application should be for the appointment of proper persons to view and adjudge the amount of the damages done by making a turnpike road over the land of the petitioner.
    CERTroRARr to the Court of Quarter Sessions of Allegheny county-
    The facts of this case are fully stated in the opinion of the court.

      Burke for reversing the proceedings,

      Kingston, contra.

   The opinion of the court was delivered by

Kennedy, J.

The petition in this case was presented to the Court of General Quarter Sessions of the Peace of Allegheny county, setting forth that a turnpike road had been lately laid out and opened by the Pittsburg and Steubenville Turnpike Road Company, through the improved lands of the petitioner; and praying the court to appoint proper persons to view and adjudge the value of so much of his improved land as was taken up for the use of the said road.

Three viewers only were in the ¡first instance appointed by the court to view and adjudge the value of the improved lands of the etitioner taken up for the use of the road. They, in obedience to the order of the court valued the same at forty-three dollars, of which they made a report to the court. Upon this report no order of the court was ever made; it was neither confirmed, approved, nor set aside.

After this, at November sessions, 1825, six viewers, were apr pointed by the court, who made a report to January sessions, 1826, valuing the improved lands of the petitioners, which were ta-: ken up by the road, at sixty-five dollars. This report was approved nisi by the court at the same session; but at January sessions, 1827, was set aside, and a new view and appraisement ordered. The clerk accordingly issued an order to the persons last appointed, James MI Crery, John Taylor, Isaac Jacobs, Benjamin Kelso, Thomas Rea, and Thomas M’Kown, directing them to view and adjudge the value of the improved lands of the'petitioner, taken up for the use of the road, and to make report thereof at the next sessions. These viewers made a report to the court at November sessions, 1827, that they “found for the within named petitioner, James Quigley, the sum of sixty dollars with costs of suit, which was approved of by the court as'to the damages only.

It is unnecessary to notice all the irregularities apparent upon the face of their proceedings, as all must tie reversed for want of authority on the part of the court to entertain the petition, in the form in which it is drawn up, and was presented. The prayer of tfte petitioner is, to have viewers appointed to view and'adjudge to him the value of his improved lands taken up with the road, instead of to view and adjudge the amount of the damages whieh had been done to him hy taking the road over his land.

The act of assembly authorizing the incorporation of the Pitts-burg and Steubenville Turnpike Road Company, passed the 3d of March, 1818,Pamphlet Laws,p. 141, contains no expressprovision ip relation to this matter. The 3d section, which declares the powers and liabilities of the company,among other things sets forth, that the company shall “generally have like powers, authorities and privileges nepessary for carrying on and completing the said turnpike road, /and be subject to all the duties, qtialifications, restrictions, penalties, fine's, forfeitures, &c. imposed ’upon the company of the Harrisburg, and Pittsburg Turnpike Road, by an act passed the 24th of February, 1806. The 8th section of this act, see PampK let Laws pi 1805-6, page 357, provides (‘that if the said road (that is the Harrisburg and Pittsburg Turnpike Road,) shall belaid out founded over and upon any land, whereby the owner or owners thereby shall suffer clamage, the person or persons suffering such damage, mp.y make application to the court of the county in which the damage shall have been done, and thereupon the court shall appoint six fit and disinterested persons to view and adjudge |ihe amount of the damage so dp.ne, which, if approved of hy Ü\e¡. court, shall he paid by the company.” By construction it is possible to make out from these two acts, that the same mode which is prescribed for relief to those who sustained damage by the making of the road over the lands under the latter, is also given to those who have sustained like damage by the making of the road under the former. The remedy is by presenting a petition to the court of the county where the damage has been done. The court here intended, may be somewhat doubtful. In another section of the same act, for a different purpose, the court of Quarter Sessio?is of the proper county is expressly mentioned, from which it might perhaps be inferred, that as often as the words “Quarter Sessions,” are not superadded to the “court of the county,” that the Court of Common Pleas was intended. On the other hand it may be said, that the subject of assessing .damages sustained by the laying out and opening of private and public roads under the general road law of the state, as also in some cases of roads made by incorporated companies, the power of appointing viewers to view and adjudge the damage is expressly given to the courts of Quarter Sessions of the proper counties respectively, and why give it to the court of Common Pleas in this instance? Although I am inclined to believe that the court of Quarter Sessions was intended in this case, as it has been usual to give the power in similar cases to that pourt, yet perhaps either court might receive and act upon the petition of the party claiming to be injured by the making of the road over his land, were it drawn up in proper form; but there is no authority, either express or constructive, given by the acts in question or any other act, to either the court of Quarter Sessions or'Common Pleas of the county where the damage has been done, to receive a petition, praying the appointment of viewers to'view and adjudge the value of the land taken up for the use of the road, whether the land be improved or unimproved, and to appoint viewers for such a purpose. This however is what was done by the court in the present case. The petitioner ought in his petition to have requested the court to appoint six fit and1 disinterested persons to view and adjudge the amount of the damage done by making the road over his land. This is a very different thing from viewing and adjudging the value of the land itself taken up with the road, which may well be presumed in all cases to be of some value, and of course the proprietor through vdiose land the road has been made, would be entitled tó be paid something by the companyin all cases. But it is the damage done to him, that he has a right to claim in such case, for the road, although laid out and made through his land, even his improved land, may, and most generally is, I presume, an advantage and benefit to him, instead of an injury or damage. Besides, why should he be paid the value of jus lajul ip any case, without giving up his title to it to the com-i pany? The making of the road upon his land does not divest him of his title to it. He is still the owner, and has a right to use it as he pleases, provided he does not injure the road or obstruct the public in the use of it. For instance, he may remove the minerals, coal, he. which lie in the bowels of the earth under the road, if it be done without prejudice to the road or the public, and the road itself, which may enable him to carry these things toa cash market, enhances in this way greatly the value of his land, and becomes a benefit to him instead of damage. All the proceedings upon the petition in this case in the court below are reversed.


source: Caselaw Access Project

author: Kennedy, J.

license: Public Domain

text:
    HAMILTON against THE COMMONWEALTH.
    An indictment, founded on a statute, must set forth the charge in those words of the statute which describe the offence. Hence an indictment under the statute which makes it indictable by force and violence to take and carry away a negro or mulatto, Etc., was held to be defective, because the words by “force and violence” were omitted.
    Writ of error to the Court of Quarter Sessions of Westmoreland county.

      Alexander Hamilton, the plaintiff in error,
    was indicted for taking and. carrying away a negro from the county of Westmoreland to the state of Virginia, with the design of selling him for a slave. The indictment contained four counts; upon the first three the defendant was acquitted, and convicted upon the last. Several errors were assigned and argued, but as the first, which is fully stated in the opinion of his Honor, who delivered that of the court, was fatal to the judgment, there was none other decided by this court.

      Ji. W. Foster for plaintiff in error.
    The words “force or violence ” which are used in the statute, creating and defining the of-fence, are essential; and the omission of them in the bill of indictment vitiates the judgment. Cited Commonwealth v. Honey-man, 2 Dali. 228. 1 Chit. Crim. Law, 168, 228. 3 Chit. Crim. Law, S35.

      J. Findlay for the State.
   The opinion of the court was delivered by

Kennedy, J.

The plaintiff in error was tried on an indictment in the Court of General Quarter Sessions of the peace for Westmoreland county, at August sessions, 1829, and found guilty on the fourth count of the indictment, and acquitted on the others. The court sentenced him “to pay a fine of-five hundred dollars to the commonwealth, to be confined in the penitentiary for the term of seven years, to be kept to hard labor and fed and clothed in the manner directed by the penal laws of the commonwealth, &c.”

The fourth count in the indictment charges “that the said Alexander Hamilton afterwards, to wit, on the day and year aforesaid, at the county aforesaid, and within the jurisdiction of this court, with force and arms inand upon a certain negro man, named John Vast aforesaid, in the peace of God and of the commonwealth then and there being, another assault did make, and him the aforesaid negro man, named John Vast aforesaid,feloniously did cause to betaken and carried away from the county aforesaid to the state of Virginia,• a place out of this commonwealth, with a design and intention of causing the said negro man, named John Vast aforesaid, to be kept and detained as a slave. To the evil example of all others in like cases offending, contrary to the form of the act of Assembly in such cases made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.”

This indictment is alleged to be founded Upon the first section of an act of Assembly, entitled “An act to give effect to the provisions of the constitution of the United States, relative to fugitives from labor; for the protection of free people of color, and to prevent kidnapping.”

By this section of the act it is declared, “That if any person or' persons shall, from and after the passing of this act, by force or violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretence, seduce or cause to be seduced, or shall attempt so to take, carry away or seduce any negro or mulatto from any parts of this commonwealth, to any other place or places whatsoever, out of this commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping and detaining or of causing to be kept and detained such negro or mulatto as a slave or servant for life, or for any term whatsoever, every such person or persons his or their aiders or abettors shall, on conviction thereof in any court of this, commonwealth having competent jurisdiction, be deemed guilty of a felony, and shall forfeit and pay, at the discretion of the court passing sentence, any sum not less than five hundred nor more than two thousand dollars, one-half whereof shall be paid to the person or persons who shall prosecute for the same, and the other half to this commonwealth; and moreover, shall be sentenced to undergo* a servitude for any term or time not less than seven year’s, nor exceeding twenty-one years, and shall be confined and kept to hard labor, fed and clothed as is directed by the penal laws of this commonwealth, for persons convicted of robbery. ”

'Henry Fulton, Esq. was endorsed on the bill of indictment as prosecutor.

The plaintiff in error, by his counsel, has assigned three errors; the first of which is considered fatal by this court; and upon'it alone an opinion will therefore be delivered.

The first error is in not charging the defendant below with having caused the said negro man, named John Vast, to be taken and carried away “by force or violence.”

Hawkins in his pleas of the crown, Book 2, No. 25, Sec. 110, says “I take it for a general rule, that unless the statute be recited, neither the words contra formam statuti, nor any periphrasis, intendment or conclusion, will make good an indictment which does not bring the fact prohibited or commanded, in the doing or not doing whereof the offence consists, within all the natural words of the statute. And upon this ground it was that it hath been resolved, that an indictment of rape, finding that the defendant on such a day and place, A. B. felonice cepit et earn adtunc et ibidem carnaliter cognovit, fyc. contra voluntatem suam, fyc. is not sufficient without the word “rapuit,” because that is the word used by the statute, which makes the offence felony. So in East. page 985, sec. 58, it is laid down as a general rule, that “an indictment on a statute must in general set forth the charge in the very toords of the statute describing the offence; for equivalent words are not sufficient;” see also Rex. v. Pemberton, 2 Burr. 1037. If a statute, in describing an offence which it creates, uses the word “unlawfully,” the indictment founded on the act, will be bad if it be omitted. 1 Chitty Crim. Law, 241. Hawk. 6, No. 25, Sec. 96. Bac. Abr. Indictmt. 9.

The foregoing rule has perhaps been dispensed with occasionally in cases of trespass ormisdemeanor, but, I apprehend, notin cases of felony. Neither of the words “force or violence” which are used in the act, are employed in the indictment. It is said, however, that the words “force and arms” are used and are the same with the words “force” or “violence.” It is true that the word “force” is used; but how and where is it used? certainly notin describing or charging the offence created by the act of Assembly. It is used in charging an assault committed by the defendant below upon the negro, which is an offence at common law, independent of the statute. But it is further contended, that the assault which is charged to have been committed by the defendant, with force upon the negro, is coupled with the causing him to be taken and carried away, by the conjunction “and,” and thus it is shewn to have been done at the same time and place, and to have been part of the same act.

It is a rule applicable to civil pleading, as well as indictments,, that eyery issuable and triable fact must be set forth, with time and place; and when there are several such facts alleged, it is not sufficient merely to mention at the beginning of the indictment the time and place, but they must be repeated to every issuable and triable fact; for whenever' a venue is necessary, time must be united with it. After the time has been once named with certainty, it is afterwards sufficient to refer to it by the words “then and there,” which have the same effect, as if the day and year were actually repeated, and will even shew the fact, which is stated in connection with them, if necessary, to constitute the offence intended to- be charged, to be a part of the same transaction which the conjunction “and,” of itself, in many cases will not do or be sufficient fori Thus in an indictment for robbery, these words “then and there” must be connected with the stroke or the robbery, and not merely with the assault. 1 Chit. Crim. Law, 198-9, 229, 220. And' in1 á! case of murder, it is not sufficient to allege that the defendant on'a: certain day made an assault and struck the party killed; blit the w'ords “then and there” must be introduced ‘before the averment of the stroke. See Buckler’s case, Dyer. 69. 1 Chitty Crim. Laid, 220. Nor Will the word “immediately” help the matter, for it is even too uncertain an allegation, when .time constitutes part of the offence". See Rex v. Francis, et als., Comyn’s Rep. 478. Chitty Crim. Law, 220. These wdrds “then and there” maké all to be done at the same time, (Heydon’s case, 4 Co. 41,) and therefore’, Where it was averred, that A, B and C feloniously and of their’ malice afore-thought, made an assault upon S, and then and there feloniously struck the said S, and then and,- there gave the5 said S a mortal wound, it was held sufficient; and; the w'ords “feloniously and of malie'e' afore-thought” were' held to refer to all- the subsequent words. Ibid. In some eases, the" w'ords then and there are more certain than even a repetition, of the day and yea'r, for the latter will not be sufficient, where, in order to complete the offence, connected acts must be shewn-to be done at the same time; but the terms then and there must be adopted. 1 Chitty Crim. Law, 221. Thus in the case of Rhenwick Williams, on an indictment upon the 6 Geo. I. ch. 28, for feloniously.assaulting Jinn Porter, with intent to spoil her Clothes, when the assault and spoiling ought to have been shown to be continuousit was charged, that he, On the 18th of January, 1790, at the parish of Saint James, within the liberty of Westminster, in the county of Middlesex, with force and arms, at the parish aforesaid, &c., unlawfully, wilfully, maliciously and feloniously, did make an assault upon Jinn Porter, spinster, then and there being, &c., with an intent wilfully and maliciously to tear, spoil, Cut and deface her garments and clothes; and that the said Rhenwick Williams, on the said 8th of January, in the 30th year aforesaid, with force and arms, at the parish aforesaid, &c., unlawfully, wilfully, maliciously, and feloniously, did tear, spoil, cut and deface, one silk gown, &c., and con-' eluding against the form of the Statute, it was held upon consultation of all the judges, that the indictment was bad, in connecting the assault, with thetéaringof theclothes, by the conjunction “and,” with the repetition of the day and year of the assault, instead of doing it by the terms, “then and there,” which would have shown, as the court said, that the assault and tearing were done at the same time, and were continuous acts. This case in particular is directly applicable to the one now under the consideration of the court. By a proper construction of that clause of the section of the act, upon which the indictment is said to have been drawn, it is conceived, that force or violence is a necessary ingredient of the of-fence, and unless it be connected with the taking and carrying away of the negro, the crime cannot be committed. It is the causing of a negro or mulatto to be taken and carried away by force or violence, that is here prohibited; and if it be not shown in the-indictment, that it was accomplished by such means, it does not fall within the prohibition of the statute. Now it is dear, that the defendant below might have committed' an assault, with force and arms, upon the negro, on the day and at the place charged in the-indictment; and on the same day, and at the same place,-have caused him to be taken and carried away without the least force or violence, or even fraud or false pretence, which is not pretended to have been used. So strict has the rule been in the use of the terms, ad tunc et ibidem, to connect those things on the record in criminal proceedings, which, in order to be regular, ought to-be-shown to have been done at the same time, and to have been parts of the same transaction, that in the King v. Morris, 2 Stra. 901, the judgment, after conviction on an indictment, was arrested, because they were left out as to the swearing of the jury. In conformity to this rule, the Supreme Court of this state, decided the case of Honeyman, 2 Dal. 228-9. He was indicted for murder, tried and convicted. The indictment charged the assault to have been made feloniously, but did not allege the strokes and kicks which occasioned the death, to have been given feloniously, nor did it connect the assaqlt with the giving of the strokes and kicks by the terms “then and there,” but merely by the conjunction “and;” and for this defect the judgment against Honeyman was reversed. Had the assault, as laid, been connected with the strokes and kicks set forth in the indictment, by the words “and then and there,” it. would have been good, according to the principle decided in Heydon’s Case, already noticed, 4 Co. 41.

Where the life, liberty, or reputation of a fellow-citizen is at stake, it is very reasonable that the law should require the utmost precision in a-criminal proceeding, which may aflect him in these particulars. Hence it appears to me that upon reason as well as. upon the force of authority, that the force with which the assault is alleged to have been committed, cannot be considered as referring to the subsequent taking and carrying away, charged in the indictment.

It is, however, contended in the next place, that under a correct construction of the act of assembly in this behalf, where a person causes a negro or mulatto to be taken and carried aioay, although without fraud or false pretence, force or violence, is not necessary to be used in the taking and carrying away, in order to make k'im liable to the punishment therein prescribed; or if it be, that the words “take and carry away,” necessarily ex vi terminorum, imply the force whieh is required by the act to constitute the of-fence.

The words in this part of the act are, “that if any person or persons shall, from and after the passing of this act, by force or violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretence, seduce or cause to be seduced, or shall attempt so to take, carry away, or seduce any negro, &c.” It is not denied, I believe, that if the party himself in person take and carry away the negro, but that force or violence must be employed, according to the terms of the act, in order to constitute the offence; yet it is insisted on, that if he causes another to take and earry away the negro, force or violence is not requisite. I am unable to perceive any reason why the legislature should have designed such a distinction. It is impossible, from the nature of the thing itself, that the man who employs another to do an act can be more guilty than if he done it himself in person; or that he should deserve punishment in the first case, and not in the last. Is there, then, any grand principle of poliey which demands punishment in the one and not in the other? None has been suggested; and if there be any such, I confess myself altogether unable to discover it. On the contrary, there appears to me to be something so1 unreasonable in it, that I cannot for a moment give way to the idea. Upon a fair interpretation of the act, it appears to me, that the of-fence intended to be thereby created, cannot be committed, unless the taking and carrying away of the negro bo effected or attempted by force, or violence, or fraud, or false pretences; and that without the use of one or other of these means, it can neither be done, nor yet caused to be done; and whether effected in the one way or the other, it is indispensably necessary that it should be so set forth in the indictment. The act of assembly has created and defined t'he offence; and the terms of the act must be pursued, therefore, in stating it.

But do the words “take and carry away,” necessarily imply that degree of force and violence which is contemplated by the act? It is certainly true that in charging offences known to the common law, whatever is necessarily implied in the words used for that purpose, need not to be stated further by other terms. For instance, the word “forged,” necessarily implies falsehood, and therefore it is unnecessary in charging the crime of. forgery to say “falsely forged.” But I doubt much the general applicability of this rule to offences created and made felony by statute, when such Other words have been superadded by the legislature. If it were so, it would set aside thp rule already noticed, which requires that the offence shall be laid in the terms of the statute, and that no equivalent words will be sufficient to supply their plac,e. But I deny that the words ^take and carry away,”'do necessarily imply force or viglence at alls nor can it be believed that the legislature thought So, otherwise they would not have deemed it necessary to have inserted these terms in addition to the wopds “take and carry away,” The word “take” does sometimes mpgn “arrest,” which, when applied to a person, conveys necessarily the idea pf force; but it also frequently means, to carry, transport, convey; to receive what is offered, is to take a bribe. Its meanings are various, some of which imply force, and some not. The same is also true of the word “carry.” And these two words being pombined together by thp conjunction “and,” does not change their meaning sp as necessarily to imply force or violence, The words “take ¡and carry away,’? nr.e the very terms that have ever been used in the action of tres- ,, pass for taking and carrying away go.ods, and so 1 jttlc was it conceived that th.ey implied force, that'it was deempd necessary to charge the taking and carrying away of the goods to have been done with force ayd arms: and this, tpo, in civil cases, which requires less strictness. In 2 Co. 443, 526, and 536, it was held, that the taking and carrying of the goods must be laid vi et armis; for-the omission was substance, and continued to be so until 16 & 17 Car. 2, c. 8, aided it after verdict, and 4th & 5th Ann. upon general demurrer. Com. Dig. pleader. 3 M. 71. 1 Saund. 81. & note 1. It is easy to conceive of possible cases, in which negroes may be taken and carried out of the state, for the purpose of being left, sp as. to be kept and held in slavery, without the least possible danger of force or violence being employed; and done most innocently too. If a slave for life run away from his master residing in Virginia, and come into Pennsylvania, where hp unfortunately gets one of his legs broken, and his master has advertised a reward of qne hundred dollars, to be paid to any person who shall bring the negro home; the negro, under his misfortune, repents of having left bis master’s service, and is anxious to return: he, however^ is unable to go himself, ahd solicits the defendant to carry him back to his master in Virginia: the defendant, in expectation of receiving the reward of one hundred dollars, takes and carries the negro away, according to his desire, out of this state to his master, in a vehicle provided by him for the purpose. Now although the negro in this case is taken and carried aiuay, out of this state into that of Virginia, with the intention, too, of being left in slavery for life, how is it possible to imagine the use of any force or violence exercised upon the negro in doing it, or to suppose for a moment that the .defendant came within the prohibition and penalty of the act; yet, there was clearly “a talcing and carrying away of the negro,” which must be admitted to have been done without force; but if the defendant had not gone himself with the negro, but employed and sent another, he, according to what has been contended, would be guilty of the offénce created by the act,'because he did not take and carry away the negro himself; he only caused it to be done, and in this case force or violence is unnecessary to be used to constitute the offence. To this I can never bring my mind to assent, because I believe it is not merely foreign to, but in direct opposition to what vvas intended by the legislature.

Huston, J. and Ross, ,T. dissented.

Judgment reversed.


text:
    SINKLER against THE TURNPIKE COMPANY.
    lijan action by a Turnpike Company, to recover the amount of certain shares of the capital stocksubscribed, evidence that a certificate of the said stock was tendered to the subscriber before suit brought, is not necessary; although the act of incorporation entitles the subscriber thereto, upon the payment of the amount subscribed by'him.
    in the pase of a promise to pay stock subscribed, “in such manner, at such times, and in such proportions as shall be determined by the president, and managers of said company;” the statute of limitation does not begin to run, until such determination and demand be made by the company, as the act of incorporation directs.
    The act of the 10th of April, 1826, was designed to enable turnpike companies to recover the capital stock subscribed, although there might be a defect in the proof of the notices, which the original acts of incorporation required to be given to the subscribers, of the times of payment, and proportions to be paid, of said stock.
    E^kor to the Common Pleas of Indiana county.
    In this action of assumpsit, The Indiana and Ebensburg Turnpike Road Company was plaintiff, and James Sinkler defendant below. It was brought to enforce the payment of two shares of the capital stock of the said company, which had been subscribed by the defendant.
    The plaintiffs below, on the trial, first read in evidence the act of assembly passed February 7th, 1818, entitled, “An act, authorizing the governor to incorporate the president and managers of the Armstrong, Indiana and Cambria Turnpike Road Company. ” See Pam. Lazos, page 74, and a supplement thereto, passed March 27th, 1819. Pam. Laws, page 175.
    They, also, after having proved the hand-writing of the defendant below, to a subscription paper, which appeared to have been signed by him for two shares,' gave it in evidence. It is in the following words, viz: “We, whose names are hereunto subscribed, do promise to pay to the President and Managers of the Indiana and Ebensburg Turnpike Road Company, the sum of twenty-five' dollars for each share of stock in the said company, set opposite our names, in such manner, in such proportions, and at such times, as shall be determined by the President and Managers of said company, in pursuance of an act of the general assembly of -the Commonwealth of Pennsylvania, entitled, “A supplement to an act entitled, an act authorizing the governor to incorporate the President and Managers of the Armstrong, Indiana and Cambria Turnpike Road Company. Witness our hands, the Bn d day of June, 1810.” To this the plaintiff in error subscribed his name; opposite to which he set two 'shares.
    The plaintiffs below, then, after .having proved a certain book to be their book of minutes, from which they read an entry of the 22d of October, 1821, showing the appointment of Thomas White, secretary to the Board of Managers, one of the 4lh of December, 1821, requiring the stockholders'to pay three dollars on each share of- stock, on or before the first day of March then'next; and that notice be published in the American and Indiana and Jefferson Whig, and two hand-bills to be posted up in Ebensburg; one of the 26th of August, 1823, directing the treasurer of the company to call upon the stockholders for a second instalment of three dollars on each share of stock, one of the 8th of January, 1824, requiring the stockholders to pay the sum of three dollars on each share, on or before the 16th of February, then next following, and that notice thereof be published in the American and Indiana and Jefferson Whig; one of the 20th of March, 1824, requiring the stockholders' to pay a further sum of three dollars on each share of stock, on or before the 1st day of May, then next following, and that notice thereof be published in the American and Indiana and Jefferson Whig; one of the 3d of May, 1824, requiring the stockholders to pay. the further sum of three dollars on each share, on or before the first day of July, then next following, and that notice be given thereof in the American and Indiana and Jefferson Whig; one of the 24th of August, 1824, requiring the stockholders to pay a further sum of three dollars on each share of stock, on or before the 1st day of October, 1824, and notice thereof to be given in the American and Indiana and Jefferson Whig; and one of the 12th of September, 1825, requiring the stockholders to pay, on or before the 20th of October, then next following, the whole amount of stock, and notice thereof to be published in the newspapers of the borough of Indiana.

    After this the plaintiffs below read in evidence, from a newspaper published in the town of Indiana, called the “Indiana and Jefferson Whig,” notices given and published therein, by the secretary of the managers, according to some of the orders and resolutions of the board, entered in their book of minutes, and mentioned above, demanding payment by the stockholders, according to the requisitions of the board.
    The first notice read was dated the 15 th of October, 1823; second, dated April 30th, 1824; third of the date of September 10th, 1824; and the last of the 7th of October, 1S25, which was a notice to the stockholders respectively to come forward and pay the whole amount of the stock by them subscribed, and remaining unpaid.
    The plaintiffs below next gave in evidence their charter, dated the 18th of December, 1820, and then rested their cause.
    The counsel for the defendant below, thereupon prayed the court to charge the jury: First, That a sufficient cause of action was not shown by the plaintiffs. Second, That sufficient proof of notice of demand of payment of the instalments, was not given: And third, That the statute of limitations was a bar to the whole of the plaintiff’s claim, and against the several instalments claimed in this action.
    The court charged the jury in favor of the plaintiffs below, on each of said points; to which the counsel for the defendant excepted. The charge of the court, on these points, is now assigned for error.

      J. B. Alexander, for plain tiff in error.
    The two first objections made by the plaintiff in error may be considered together.
    They are, that, no sufficient cause of action had been, shewn, and that proof of notice of the demand of payment had not been made.
    By the act of assembly and the terms of the subscription, the managers were to arrange the payments of the stock into instalments. The money was only payable as it might be wanted during the construction of the road.
    The stockholders entrusted this to the managers, and they direct a special and particular manner of payment, and of giving notice that such payments were required.
    Unless the officers of'the company, entrusted with the power of giving such notice, give it in the manner the stockholders by their managers, have ordered it should be given, no action will lie.

      By an examination of the orders of the board, and a comparison of them with the publications proved, it is clear that the notices' of demand of payment, were not given as they ought to have been. M’Conahy V. The Turnpike Co. 1 Penn’a. Rep. 426.
    In addition to the want of notice of demand by publication, there is an insuperable objection in the fact, that no personal notice was given, or offer of a certificate of the stock made to the defendant in error, which, by the act, was necessary. Svg. on Ven. 481.-1 Sautu 4S1. 8 Serg. 8? Rawle.

    Is the whole or any part of the defendant’s claim barre'd by the' statutes of limitations? The subscription was made on the 2d June,' 1819. The first demand of payment was made on the 4th December, 1821, and required a payment to be made on the 1st March^ 1822. Will the statute commence running from the time of the promise, or from the time of demand. It would seem to be Unreasonable that a party to whom a promise is made to be performed on request, should be permitted to lie by for any time he chose,- and then, by demand, preclude the promisor from the benefit of the lapse of time. Suppose a promissory note payable’ on demand —it Would be payable the instant it was made. The party holding it, could not at any future period renew his cause of action by merely demanding payment. It would at least require some new acknowledgment of the debt to make the party liable. But in this case no such thing has been shewn — no voting at elections, or any other interference in the concerns of the company.
    If goods be taken on an execution, which is afterwards set aside for irregularity, the' limitation begins to run .from the time of the taking, and not from the time of the setting aside the execution. 3 Johns. Rep. 528. So when assumpsit brought for attorney’s fees, though düe by the record, the limitation may be pleaded notwithstanding the nature of the evidence by which the claim is to be proved. 1 Lord 'Raym. 2. 3 Lev. 367. 4 Bac. Jib. 403.
    So also When an administration account of two administrators was settled, on record, and one was indebted to the other, the limitation may be pleaded in an action of assumpsit. Gemberling v. Meyert 2 Yeates, 341. So also when a simple contract debt Was secured by a pawn, although the pawn may be redeemed after six years; yet -an action for the debt would be barred by the limitation. Slay maker v. Wilson, 1 Fetin’a. Rep. 2 IS. Thus it appears that the recurring to the original promise will not save the plaintiff. It is however believed to be clear, that such of the instalments as were claimed more than six years before the action brought, are not recoverable in this action.

      White for defendant in error.
    On the part of the defendant In error, it is considered that all the objections of the plaintiff in error to the recovery of the amount of stock subscribed by him are fully removed by the act of assembly of tlie 10th April, 1826. Pamphlet Laws,p. 325.
    By the provisions of the act of assembly, under which the plaintiffs below weio incorporated, the managers were authorised to call for payment of the stock subscribed, in such proportions, and at such times as they might deem expedient, giving notice of the time of payment, thirty days previous to thclimc the stockholdefs' were required to make the payment.

    From an examination of the several resolutions of the Board, re-, ferred to in the bill of exceptions, it will appear, that the Board off managers adhered to the provisions of the act of assembly; but unfortunately they wore not sufficiently careful in 'preserving the newspapers, in which notices of the calls for payment had been inserted. In this particular the company was not singular, and so difficult had the recovery of the stock subscribed to the differeht turnpike companies become, from the many technical objections, taken by the subscribers, that the legislature, by the act iff lOtli April, 1S26, provided “that on the trial of any cause now pending or that may hereafter be brought, the plaintiff shall not be non-suited or affected in any respect on the trial of the same, by reason of any informality in the subscription of the slock, in the advertising for the organization of the company, or for the calling in of stock, if the court are satisfied reasonable notice of the same was given.”
    Ill the case before the court below, they were satisfied, that .reasonable notice of the calling in of the stock had been given; and the last noted publication by the company, was a call for the whole amount of subscription yet in arrears, and of this thirty days notice had been given.
    It is contended that this principle is in no níáñner impugned by the decision of the case of ISP Conuhy v. Centre Kishocoquillas Turnpike — contained in Penn’a. Rep. 426. The printed advertisement was offered for the purpose of shewing, that M’Conahy had accepted the charter, and acted under it; — and as the question was; whether ilP Conahy had signed the advertisement or authorized the. publication, the court decided that the admission of the noper mri'-.'üV'WA, c -n- <-¡ < ■vícv1;;’. n-"l, !.b i1cí::-.i 4oes v.nt mil-ac?.fr ' ' ■■ T .''w .1«¡-.Vi i.-.-i-r''l-r <i'6iV0nt p<,Hí\
    úi 1 fie. !¡. ur.-i ' i" i n"'.. w i1 • ...........! m '<(< fterg -S" ¡hítale, J ií'.ík; i-u, u r m. 6 ¡<y u:-r í"'n ac'/.n, a fio;:? • ;n» áoL •!>' r¡ ’ii :fi¡: v. í,\ i '* l<: : bí.'í) r? Ccrg, f Ríanle, ZOC, ¡ño a ni ni v¡-,ni, ICO;.', wtc "'Oeognír-.ed as binding in all suits brought thereafter.
    As to the want of the tender of a certificate of the stock before suit brought, it is not considered material; as the promises were independant. And among the various turnpike causes which have been before this court, this exception has' never been thought of. The defendant would only be entitled to a certificate after the whole amount had been paid. Negley v. Sleioart, 10 Serg. Sp JRawle, 359.

      2. As to thp question raised upon the statute of limitation, it is¡ contended by the defendcnts in this court, that this ease bears no resemblance to the case of a promissory note, payable upon demand; — it is rather considered to assimilate itself to the case of a promissory note, payable after a limited time; upon which it is clear, that the statute would not run, until after the time of payment had elapsed.' Nor is this position at all affected by the’cases referred to by the plaintiff in error on this point.
    • The action was commenced before the six years had elapsed from the call of any of the instalments (23 July 1827) and it is therefore believed that there was no error in the trial of this cause: in the court below, and that their decision should be affirmed.
   The opinion of the court was delivered by

Kennedy, J.

The subscription’ of the defendant below was made under the acts of assembly which were read in evidence to the jury. The sixth section of the first act provides, that the President and Managers first chosen, shall procure certificates for all the shares of the stock of the company, and shall deliver one such certificate, signed by the President, and counter-signed ‘by the: Treasurer, and sealed with the common seal of the corporation, to each-person, for every share, by him, her, or them, subscribed and held, he, she or they, paying three dollars for each share, which certificate shall be transferable,-&c., subject, however, to all payments due or to’ become due thereon. By the seventh section, the President and Managers are authorized, among other things, to ascertain the times when, and the manner and proportions in- which the stockholders shall pay the money due on their respective sharess and by the eighth section it is declared, that if, after thirty days3 notice in such public newspapers, at the discretion of the Managers, as shall be best calculated to notify such stockholders of the time and place appointed for the payment of any proportion or dividend of the capital stock, in order to carry on the work,- any stockholder shall neglect to pay such proportion or dividend at the place appointed, for'the space of thirty days after the time so appointed, every such stockholder or assignee shall, in addition to the dividend so called for, pay at the rate of two per cent, per month for the delay of such payment; and to compel payment, the President and Managers are expressly authorized to bring suit.

By an act of assembly of the 10th of April, 1826,, Pam. Laws page 325, fifth section, it is directed, “That the several turnpike road and bridge companies within this commonwealth, shall proceed to collect the stock due by individuals, with the least possible ¡delay; and apply the same to the payment of their debts joro rata. On the trial of any cause now pending, or that may be hereafter brought, the plaintiff shall not bo non-suited or affected in any respect on the trial of the same, by reason of any informality in the subscription of the stock, in the advertising for the organization of the company, or for the calling in of the stock, if the court are satisfied reasonable notice was given of the same.”

This suit was commenced on the 23d of July, 1827. The counsel for the plaintiff in error, in support of his two first points, has urged, that the amount of the stock subscribed by his client has not been apportioned Into instalments, as contemplated by the very terms of the subscription, and the act of assembly already recited; and that the times and places were not fixed for the payment thereof, and due notice given to him.

From the resolutions of the board of manager's read in evidence, it certainly appeared, that the stockholders hadbeen required and directed to pay by instalments, at different times, to the treasurer of the company, the whole amount of their respective subscriptions. By the terms of the eighth section of the act already recited, a notice given in such newspaper as the managers shall direct, is made a sufficient demand, and if any stockholder, after thirty days’ notice so given, shall neglect to pay for the space of thirty days after the time appointed for that purpose, he shall be liable to be sued. Sixty days would appear to be the utmost length of time, after the publication of the notice to pay, that a stockholder could claim exemption from being liable to a suit. It is certainly true, that in this case, a notice published in the newspaper, as directed by the managers, of all their orders, apportioning and demanding payment of the stock, was not proved to have been made; some of these, however, were, and especially the last order, which was a' call for payment of whatever remained unpaid of the whole amount; and this notice was published in the newspapers directed by the order of the 7th of October, 1825, and no suit was brought afterwards, uutil the 23d of July, 1827. Under the provision of the act of the 10th pf April, 1826, recited above, I consider the requirements of the managers, and the notices thereof given, sufficient to entitle the defendants in error to recover. The very object and design of this act was to dispense with the strictness of proof, that otherwise might have been necessary, in case it had not been passed. The plaintiff in error cannot complain that he was hurried or pressed unduly for payment. The last order for paying up the whole, was not made until more than six years after the subscription, and no «.uit was brought until nearly two years, after the notice given of that order by a publication in the newspaper. I do not think that the dividing of the subscription into instalments, and requiring that they should be paid at different times, was of the essence of the cdntract, It was a matter that was to' be left to the discretion of the managers qf the company, who were not restricted or limited in the exercise of their discretion in this respect, in any way whatever. The act has laid down no rule other than that the amount of the stock shall be paid as the managers shall require it. And it was the duty of thé defendant below to cqmply with the requisition of the managers.

In the next place it is objected, that the plaintiffs below were not entitled tq maintain their action, because "they had not made out and delivered to the defendant a certificate for his stock. He had tiQ right to claim a certificate, until he paid at least three'dollars on each share. It does not appear that he ever paid any thing. His paying three dollars on each share,-1 consider a condition precedent, which he was bound to perform before he could demand a certificate. It cannot he supposed that each stockholder was'to be waited upon personally by the managers, arid tendered a certificate of his stock, He was not even to be cálled on personalty for the payment of his stock subscribed; a notice published in a newspaper to this effect is made sufficient. It was ,his business, as it appears to me, if he wished to obtain his certificate, to have called and first paid his money, and then have demanded it. ’ I therefore think, that the court helowwas right in charging the jury against the defendant, upon his first two points.

I also, think that tfie court was correct in telling the jury, that the statute of limitations formed no bar to the plaintiff’s claim, or any part of it. According to the express pi'ovisions of the eighth seqtiqn of the act of the 7tli of February, 1818, already recited,'no action cquld have been maintained for the defendant’s subscription, or any part of it, until the managers had first fixed a time for the payment of it, and given a notice, as directed by the act. No part of it was required to be paid before the first of March, 1823, -and this suit-was' commenced within five years and five months after that. The rule on this subject is, that the statute of limitations does not begin'to run, before the plaintiff has a right to bring his suit. No action accrued hero until the 1st of March, 1822.

Judgment affirmed.


author: Huston, I.

text:
    M'CARTY against SPRINGER.
    4 contracted to sell tq B ii house and lot clear of incumbrances: C, to whom A was indebted, was present at the execution of the agreement; B executed a judgment bond to C by consent of A, for the purchase money, and toolc A’s receipt on the article of agreement for the bond “which when paid would be in foil of the purchase money:” a judgment was entered upon the bond. A, previously, had entered into a recognizance as surety of a sheriff, which wa3 subsequently sued and a judgment obtained thereon, for the payment of which, the same house and lot of A. was levied and sold and purchased by B at a sum less than the amount of the bond to C.' Upon a scire facias to revive the judgment p.f C, against B, it was held, that B had a good defence to the amount of the purchase money which he paid to the sheriff: and that such defence might be made upon the scire facias as well as if the trial was upon the original judgment opened.
    Error to the Common Pleas of Fayette County.
    This was a scire facias to revive < a judgment in which Levi Springer was plaintiff below, and Daniel B. M’Party defendant. The fads which gave rise to the questions argued and decided aro fully stated in the opinion of the court.

      N Ewing, for plaintiff in error.

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

Huston, I.

The following statement of facts was presented to tbe court: A certain N. Mitchell, on the 19th of February, 1818, contracted by article of agreement to sell to D. M’Carty, a lot of ground in Uniontown: he was to convey it clear of incumbrances; .and the conveyance to be made when the money was paid. Mitchell was indebted to Springer, and having become embarrassed, a meeting took place between him and Springer and M’ Carly, at the office of Springer’s attorney, where a judgment bond, dated the 5th of September, 1822, was given by M’ Carty to Springer for the balance due on the articles of agreement. On the articles was endorsed a receipt by Springer’s attorney, mentioning that speh bond was given, and declaring that token paid it would be in full of the purchase money. Springer was present and knew the consideration of the bond given him. No deed was executed by Mitchell to M.’Carty, nor could he then, or at any other time after, give a title clear of incumbrances. On the 19th of October, 1820, Mitchell had entered into a rocognizance as one of the sureties of D. P. Linch, sheriff of Fayette county, in the sum of ten thousand dollars; on this a %c%. fa. was issued, Commontveallh for Bachman v. Lynch and his sureties; and on 21st June, 1825, a judgment was entered, and this lot sold as the property of Mitchell, and purchased by M’ Carty, in the name of a trustee. It also appeared1 that Springer had entered satisfaction on a judgment which he had against Mitchell for the amount of his bond, but when this satisfaction was entered, was not agreed on by the counsel, nor did it appear on the record: nor was it stated, that this was done in pursuance of any agreement made when the bond was given.

On 7th of September, 1832, judgment was entered on this bond in favor of Springer v. M’Carty for ten thousand and fifty-eight dollars, and fifty cents, and interest from 5th September, 1822. A sci. fa. issued to revive the judgment to October term, 182S;atth© return, the defendant applied to the court to open the original judgment, and let him into a defence; this was refused, and he then plead nul liel record, and payment with leave to give the special matter in evidence; The dispute is, whether he should be allowed credit, for the sum which he had paid for the house and lot at sheriff’s sale, (about six hundred and sixty-one dollars.)

The court instructed the jury that this defence could not be made on the sci. fa. but ought to have been made to the judgment. We think this is error; because, even if it had been possible to plead to a judgment, entered on a warrant of attorney, which it was not, yet the fact on which the defence rested, occurred after the judgment was entered. Until the lot was sold by the sheriff, it was. possible that Mitchell might be able to make a deed clear of incumbrances: after that sale, no conveyance by him would have any effect. The matter to be proved under the notice was a fact, which occurred after the judgment entered; and the legal effect of such proof was open to the court and jury — and secondly, the court said “it was a rule of law, that when one, before taking an assignment, calls on the obligor who assents and says it shall be paid, and gives a judgment accordingly, it will not be allowed that he shall afterwards object to the payment, on account of any thing existing prior to the assignment.' On both these points we think’ the law is with the plaintiff. M’ Carty knew of the lien of the recognizence, and was himself a party to it,- as one of the sureties of Lynch; he might have made defence originally; he did not do so; he assented to the arrangement with Springer, and gave him a judgment.”

In the hurry of a trial, the judge overlooked the fact, that the defence is, not that the property was bound by the recognizance; but that it had been sold on the recognizances, a fact which arose after, and not before the date of the bond. And further, admitting the law to be as stated, yet this is not a bond given to Mitchell, and assigned to Springer, after calling on My Carty, nor is the evidence, that Springer called on M’ Carty, and asked him if the bond was good, and was told there was no defence. The case expressly finds, that no deed had been made; that when M’ Carty was ready to pay his money, he had a right to. call for a deed clear of incumbrances; and that Springer knew all. this. We have no evidence who procured the meeting of the parties at which this bond was given. It is possible that Springer, finding his demand against Mitchell desperate, procured the meeting and the arrangement, and got M’ Carty’s bond as collateral security for Mitchell; it is possible, that instead of M’ Carty inducing him to take this bond, the persuasion was by Springer< If it was understood that M’ Garty was to pay at all events, whether he got a deed clear of incumbrances or got no deed, it is not easy to explain why a conditional receipt was put on the articles of agreement by Springer’s attorney. If M’ Carty was taken absolutely and Mitchell discharged, M’ Carty was entitled to a deed at that time; for Mitchell was paid, and an absolute receipt ought to have been written on the articles. But the conditional receipt is perfectly intelligible, and saying nothing about Springer’s judgment at that time is perfectly intelligible, and a good reason existed why Mitchell did not make the deed, if this bond was only a collateral security for a pre-existing debt, and payable to Springer On the same terms on which the money was payable to Mitchell. The fact of M’Carty’s giving the judgment bond, taken alone, is against him5 the facts that he got no deed, that the conditional receipt and not a receipt in full, was put on the article, looks as if all was an arrangement to depend on future events, and if Springer was, by an agreement at that time, to enter satisfaction On his judgment against Mitchell, it would have weight in his favor; if there Was no such understanding at that time, and he entered satisfaction after Mitchell’s property was sold, or after it was levied on, or otherwise understood he could obtain nothing from it, and solely to strengthen his claim against M’Carty ¡ it might weigh the other way.

A negotiable note assigned in the course of business, the indorseeholds it free from defence by the maker; but if only given asá collateral security for a debt, it is considered as the property of the' endorsor and not of the endorsee, and is open to any just defence! by the maker. So if the indorsee takes it long after it is due, which would be reason to suspect there would be a defence, much more would this be the case, if he had positive notice that there was a defence. And so if a person holding a bond, to which he knew there was a defence or would be one, and another person, who also knew this, should combine and induce the obligor who was ignorant of a defence, to use words which would bind him to the assignee, he would be relieved on proving the fraudulent combination to entrap him — fraud. which vitiates every thing, would have the same effect here.

Instead of assuming that this bond was given at the instance of M’ Carty, and was understood and intended by the parties as closing the whole transaction, as entitling M’Carly atonceto his deed, and disdharging him from Mitchell\ and discharging Mitchell at once and finally from Springer, for the amount of the bond. It ought to have been inquired whether these things were so, and the jury should have been told, that in that event, the plaintiff must receive his whole demand. But that if Springer still retained his judgment against Mitchellif M’ Curly did not pay Springer, -he was still held on the article to Mitchell. If his bond was only a collateral security to Springer, and none of the parties considered it as a final settlement or discharge; if all depended on M’Carly getting a deed clear of incumbrances, anti he was not to' get a deed till ho paid the bond or paid Milchell, in short if all was as much conditional as before Springer interfered, then M’ Curly has a defence, for so much as he paid for the house, and interest-from the time he paid.

Judgment reversed and a venire denoiio awarded¡


author: Huston, J.

text:
    MATEER against HISSIM.
    Hie statute of 1.6 Elizabeth does not render void a conveyance made by a man, supply because lie was indebted.
    A father, being indebted, conveyed to his two sons a tract of land, in consideration of fifteen hundred dollars, for which he took their bonds, and these bonds were subsequently given up, without having been paid, to the sons, by the father, or by his administrators after hjs death, in pursuance of his direction; upon proof that the father left an estate sufficient to pay all his debts, exclusive of the land lire's conveyed to his sons, it was held, that such convej-ance was not fraudulent and void.
    A purchaser from a fraudulent grantee, or a fraudulent debtor, where ho has not any manner of notice or knowledge of the fraud, is protected from the operation of tile statute of the 27 Elizabeth.

    Wb.it of error to the-Common Pleas of Westmoreland county.-
    This was an action of ejectment, for a tract of land, in which 4Andrew Mateer was plaintiff, anti Jlbner Hissim and Michael Kimmcl were defendants.. All parties claimed under llv. same original title, which wos veriecl in Michael ?’Scmmcl, Sen., ¡h<;- ia fher of one of the defendants, a short lime before In”r-; tlcaib. Previously to the 10th of January, IS.ifl, Michael KhsunA, Sen. \\u.¡ indebted by bond,, which had been cA.igoed ío JiniSaw Ain leer, the plaintiff, in the sum of two hundred, dolíais, with some yew? interest upon it; on that day he sold and conveyed the land in dispute, one hundred and forty-eight acres, to his two sons, Joseph and Michael, in consideration of fifteen hundred dollars, for which he took their bonds payable at a future day. No pArt of the money was paid during the life-time of the father. A suit was brought by Andrew Mateer, against Michael Kimmel, Sen.j on the bond, to May term, ISIS; but the writ was not served on the defendant, and he died, in .Tune, 1818, intestate. Letters of administration were issued upon his estate to his son Joseph, who got into his hands personal estate .of the intestate, to the amount of about eighteen hundred dollars, exclusive of the bonds, which were given for the consideration of the land before mentioned; for it did not appear very clearly, whether the father had given these bonds, or1 part of them, to his sons in his life-time; or whether Joseph, his administrator, distributed them after his father’s death, in pursuance of an intention which the old man expressed to do so, of which there was some proof. Immediately after the death of Michael Kimmel, Sen., the suit of Andrew Mateer on the bond was renewed against the administrator, and a judgment was recovered on the 11th of January, 1819. Upon this judgment a Ji. fa. issued to August term, 1819, which was returned “nulla bona.” Previously to this, to February term, 1820, Mateer brought a suit on the administration bond of Joseph, the administrator, upon which no further proceeding was had until 1825, when he obtained a judgment by award of arbitrators, for the amount of his debt, interest^ and costs. No execution was issued on this judgment, because before it was obtained in 1824, others had obtained judgments against Joseph, upon which his land, the same which his father conveyed to him, was levied and sold by the sheriff to S. Trevor. At this' time Joseph and all his sureties in the administration bond were insolvent. In 1836 S. Trevor sold to Abner Ilissim, one of the defendants, by articles of agreement, and received four hundred and fifty dollars on account of the purchase-money. Mateer then went back to his original suit, and issued an als. ji. fa. to November term, 1825, which was levied on the land in dispute, and the same was condemned. To May term, 1827, a vend, expos, issued, upon which the land was sold and purchased by Andrew Mateer, the plaintiff. Joseph and Michael Kimmel, soon after they received the conveyance from their father, had divided the land between them; and ir. this suit, Ilissim and Michael Kimmel severed in their defence. There v/as some evidence th»t Ilissim knew of AT\'v-’"\? cl-ir.' 7,die: A r v"’".e ÍA .. .
    The l y’Tvvy r-A vleed A Tv \n:y the fact, vAA.V-a • re Ary A .A ,a - "-a; .■ Aker to :>.e - a re; e.i e iAoyAyA? T .'A', ■■ ' ■ '.y ■ -.".a A\ Av ■ aaek;„ knejury LO'.ui' * !”iv > j\c-

      J. B. Alexander for plaintiff in error,
    Cited 2 Jitk. 174. 1 Yeates, 574. Sugdon, 494. 2 Chan. Ca. 116. 12 Serg. fy Raioie, 454. 1 Raioie, 328. 1 Pondb. 262. CWfjoer, 434-5 and 711. 1 Peters' C. C. 460. 1 Raioie, 352. 8 Serg. fy Raioie, 451. 2 Penn. Rep. 91.

      Foster for defendant in error.
    That the statute of 13 Elizabeth was not applicable to the fact» of-this case, cited Rob. Did. 302. 1 Rawle, 244. 1 Peters Rep. 464. Thai admitting that the defendant Hissim had notice of a claim of the plaintiffs, yet he is but a purchaser with notice, from a purchaser without notice, and therefore he cannot be effected by the fraud, even if it existed, and was proved. 8 Crunch. 462. Cox’s Dig. 340. No. 47. 2 Mason, 252. 4 Wheat. 487.• 6 Crunch. 133. Sugden, 531. Whart. Dig. 210, No. 91.

   The opinion of the court was delivered by

Huston, J.

Michael Kimmel, Sen., in January, 1818, waa possessed of five bonds against J. Beck, of sixty pounds each; Beck was able to pay, and has paid all these since Kimmel’s death. He had, also, other bonds to the amount of three hundred and twenty pounds, and his personal property was valued at about fifty pounds; in all about eighteen hundred dollars. He was indebted the am ount of one bond for two hundred dollars, with four’years interest, and to another person twenty-seven dollars. I have stated the above as the debts due to him, though there was some proof, but not positive, that he was, at that time, possessed of more than double this amount; and probably the jury believed he was.

On the 16'th of January, 1818, he conveyed to his two sons, Joseph and Michael, a ti-act of one hundred and forty-eight acres;, (the land in dispute,) by deed, for the consideration of fifteen hundred dollars: no money was paid; but ten bonds were given for the purchase-money; and it was proved that he spoke of giving some of these bonds to Michael his son to support him.

On the 16th of June, 1818, old Michael w7as dead, and letters of administration issued to his son Joseph. It did not appear whether the intestate had cancelled these same ten bonds, or given them to the obligors in his life-time, or whether they came into .the hands of Joseph, one of the obligors, as administrator; but it did appear, that Joseph, the administrator, as early as the 23d of June, 1818, gave two of the five bonds, first mentioned, to a brother-in-law; and on the 15th of August, 1823, gave the remaining three bonds to a brother. It was stated in the receipt w7hich he took from each of them, that the bonds had been assigned by his father in his life-time; and assuming this to be true, and also taking it for granted that he gave up to Joseph and Michael these ten bonds in his life-time, there remained in the hands of the administrator, the bonds for three hundred and twenty pounds, and the personal property, to enable him to pay two hundred and seventy dollars.

To June term, ISIS, Jlndreio Mateer brought suit against Michael Kimmel, Sen., for his debt of two hundred dollars. The writ not hav ing been served, it was renewed to the next term against the administrator; and at January term, 1819, judgment was rendered. To August term, 1819, he issued aft. fa., which was returned nulla bona. To February term, 1820, Mateer brought suit on the administration bond of Joseph Kimmel; and after permitting it to rest five years, it was referred, under our compulsory arbitration law, and an award was made for the plaintiff for three hundred and thirty-seven dollars and sixty-seven cents. Nothing was done on that judgment, because, in the meantime, Samuel Trevor had obtained a judgment against Joseph Kimmel, which was revived by sci. fas. to August term, 1823, and to the same term had issued a fi. fa. and levied it on the lands Joseph had got from his father, together with other lands, which were condemned, and on a vend, expos, issued by Joseph Painter, who had also obtained a judgment against Joseph Kimmel, were sold to S. Trevor, on the 24th of February, 1824. The price did not pay the amount due Painter and Trevor. The sheriff’s deed to Trevor was dated the 24th of February, 1824. Joseph Kimmel was then insolvent; and his hail had also become insolvent, though good when they signed his bond. Mateer then went back to his original suit; and to November term, 1825, he issued an ais. fi. fa., which was levied on the one hundred and forty-eight acres of land sold by Michael Kimmel, the elder; and on a vend, expos, to May term, 1827, it was sold to J!. Mateer, the plaintiff, for thirty dollars. In 1826 Hissim had purchased, by articles of agreement, from Trevor, and had paid four hundred and fifty dollars in part of the purchase-money. It was also in proof, that Joseph and Michael had divided the land, soon after the conveyance from their father; and Hissim and Michael severed in the defence.

It may be proper, in discussing this case, to refer to the words of the statute of the 13 Elizabeth, which declares “every feoffment, gift, grant, alienation, bargain and conveyance of land, &e., goods, &c., made with intent to delay, hinder and defraud creditors and m'hers of their just actions, debts, &c., shall be henceforth deemed and taken, only as against that person or persons, his or their heirs, executors, &c. whose actions, suits, &c. by such guileful, covinous, or fraudulent practices or devices are or shall be in any wise disturbed, hindered, delayed.or defrauded, to be clearly and utterly void, frustrate, and of none effect.” This, however, is limited by a proviso, “that this act, or any thing therein contained, shall not extend to any estate or interest in land, &c., had, Sic., or thereafter to be had, made, conveyed or assured, which eétate or interest is or shall be upon good consideration, and bona fide, lawfully conveyed or assured to any person, &c. not having, at the time of such conveyance or assurance to them made, any manner of notice or knowledge of such covin, fraud, or collusion as is aforesaid.” The statute 27 Elizabeth, makes such conveyances void as to subsequent purchasers.

It has been often said, that this statute is in affirmance of the common law; if so, it is a very explicit declaration of-what the cpmmonlaw was; yet, neither in England or America, have the decisions on it been unifqrm or reconcilable with each other; and I wish I could say those in our own state are an exception. The star tute does not render void a conveyance made by aman, simply because he is indebted. In this state, if land be sold which is bound by a judgment, and that judgment is not discharged, it may belevied pn in the hands of the vendee; but a judgment obtained afterwards, cannot generally be levied on lands in the handsj of him who bought it and gpt his deed before judgment obtained. If not generally, when can it be so levied? Only when the purchaser, as well as the seller, knew of and joined in the fraud. By the very words of the proviso, the act does not extend to cases in which the purchaser had no notice or knowledge of the covin, &c, If it were other-.wise, the most honest vendee who bought and paid a full price, would lose his land or goods, because the vendor instantly absconded and tpok the purchasermoney out of the reach of his creditors, It is Reasonable, that he who purchases and pays, with the intent and purpose of enabling the vendor to carry away the funds and defraud his creditors, should lose; but it would not be easy to find a reason why an honest man, who knew of no such design, and suspected no such result, should suffer; so far, there is, on this point, no dispute. But it has lately been decided in Connecticut, and by Chancellor Kent, in New- York, that although a fair purchaser from a fraudulent debtor is protected, yet a fair purchaser from the fraudulent grantee of a fraudulent debtoR is not. I premise that I do not speak of cases, in which the deed itself gives notice which may |ead to suspicion, pr where on its face it is voluntary; for there, it eann'ot be said that a purchaser has not any manner of notice.

I hold that a purchaser from a fraudulent grantee is as much pro - tected as pne frpm the grantor, where he has not any manner of notice or knowledge of the fraud or collusion; because, in the enacting clause, it is the fraudulent feoffment, gift, &c. which is avoided, In'the pRoyiso, it is the estate or interest of any person who'had fio manner of notice or knowledge of the fraud which is protected. Any innocent man who. acquires bona fide an estate in land so fraudulently sold, without knowledge of the fraud, is, then,' Within the words of the law. The bona fide purchaser from » debtor intending to defraud his creditors is protected; because, in the ordinary course of business, he has done what he could lawfully do; and he being honest, is not to suffer for the fraud of another, of which he had no knowledge or suspicion. It would not be easy to give a reason why another man, or the same, also acting in the ordinary course of business, shall lose his property on account of a fraud committed by two others, but of which he had no manner of notice or knowledge. The creditor loses in the first case, because the fraudulent person, having got himself or his property out of his power, there is no way to compensate such creditor, except by taking that compensation from an honest man, who never dreamed of injuring him. And the same reason applies with equal force, to protect the innocent and bona fide purchaser from the fraudulent grantee. I object to the decision in 1 Day. 527, and 3 Johns. Chan. 371-2, because we have the British statute in force unchanged: it has been changed in New-Yorh, by uniting the statutes of the 13 and 27 Elizabeth into one act, consolidating the two provisions into one, and changing some of the expressions. In connection therewith they have an act of their own, and its phraseology I don’t know, and cannot here ascertain. But suppose they have retained the very words, we ought not to follow those decisions. Judge Story has shown, in 2 Mason, 376, et seq. that those decisions are a departure from the construction long settled in England; it would be easy to add to the cases cited by him. See Sug. on Ven. 471. When we adopted that statute, we took along with it its then settled construction. If our circumstances, modes of business, or other cause, required it, we may make the necessary change in the construction; but we cannot follow the changes made by every tribunal in the twenty-four states. Several, and among them Massachusetts and the Supreme Court of the United States, (See 6 Cranch, 133,) adheres to the construction settled in England; and the latter court has said we ought not to follow the changes made in England, since our separation. 5 Peters, 280.

The deed from the elder ICimmel, on its face, purported to have been made for full and valuable consideration. Joseph entered upon and enjoyed his part in severalty for six years before Trevor purchased it at sheriff’s sale. There is no allegation that Trevor had any knowledge or notice of any fraud; his estate is then protected by the express words of the proviso. But it is said Hissim heard a rumor of some adverse title, before he contracted with Trevor. To this it might be answered, that Trevor is still, the owner, being unpaid, except in part; but there is another answer: if Trevor held it clear of this claim, he can sell it clear of it: whoever owns' land in fee simple, unincumbered, can sell it in fee simple, unincumbered, as long as an estate in fee simple retains the jpeaping heretofore attached to it. The law knows not of an unirvcumbered estate in fee simple, which is forfeited by alienation; or which the owner cannot give a good title for to the purchaser. '

But it is said, that the part of Michael Kimmel is subject to this claim. Whether the deed to the two sons was with intent to defraud any person, either on the part of the father or sons, was a question of fact, as the intention must always be. 3 Dal. 321-3. Taking the property retained by the old man at the lowest estimate, it was equal to five times the amount of all he owed; and this on the supposition that it was intended thát the bonds for the consideration of- the sale should never be paid. Every voluntary settlement is not void, nor voidable by any creditor who.has no lien on it at the time, if enough and more than enough is reserved to pay all debts.

If this claim had been known to the old man, and he had been craved Jor it in January, ISIS, is it presumable that with bonds to, five times its amount, he should have contemplated disposing of his land, and then tying in jail till his death, or being discharged by perjury, to avoid so trifling a claiml Had he disposed of every thing he had, such might have been the presumption, and perhaps an irresistible presumption, which would take a case from the jury; but when he reserved very ample funds, it became a question for the jury.

If the father had afterwards disposed of all his property, or lived to spend it; or if,'as in Thompson and Daugherty, he was about to enter into extensive business, where large debts might be incurred, itmight have altered .the case; but nothing of the kind occurred, or was in contemplation. Take it at the worst, he preserved to the day of his death, far more than sufficient for his debts.

I am aware that in England a voluntary conveyance is now held conclusively void against a subsequent sale for a valuable consideration; and of course against subsequent creditors. The law was at one time otherwise; and that prior construction having been adopted in practice here, the alteration absolutely fixing fraud on a voluntary family settlement, ought not to be followed. 5 Peters, 280.

I am also aware, that a voluntary deed has been said to be void, where the person is indebted at the time, unless the presumption of fraud is repelled by those debts being provided for by mortgage, or provision in the deed itself. The phrase, ‘‘indebted at the time,” must be taken, however, with some limitation; it cannot mean a man indebted for a night’s lodging or a hat. It must mean some debt bearing some proportion to the property retained, which may render its payment doubtful; some debt worth providing for by a mortgage, or in a deed; and if it be such a debt, I know no authority and no reason for saying, it must be provided for in either of those ways. A deed ought not to be set aside on account of a debt so small, that the grantor at the time, ind all his life, had property to pay five times its amount, and left suoh property at his death, expressly subject to that debt.

If the debt in question be lost, it was lost by the fraud or misfortune of the administrator, and the laches of the creditor.

Ross, J. dissented.

Judgment affirmed.


text:
    SINCLAIR against WILSON.
    An administrator who suffers a j udgment to be rendered against hint, in an actioñ wherein the declaration does not charge him with having received estate sufficient to pay the debt sued for, does not thereby make such an admission of assets as Will charge him personally.
    Hence, a judgment obtained by an award of arbitrators, against an administrator in an action where no declaration was filed, was held not to be conclusive upon the administrator personally.
    Error to the Common Pleas of Westmoreland county. .
    This was a case stated for the opinion of the court, the facts of Which are fully set forth in the opinion of his Honor who delivered that of the court.
   Huston, J.

Robert Baldridge died in 1815, and on 21st August of that year, letters of administration issued to his widow Jane Baldridge and David Wilson. Thomas and William Baldtvin were the sureties of the administrators in their administ-ration bond. Suit had been brought on that bond and a judgment rendered for the penalty. A scire facias issued thereon against the defendants, alleging a devastavit; and a case was stated for the opinion of the court as follows.

After stating the death of Baldridge, and the administration on his estate, and the bond and suit on it, as above, the case proceeds:. To February term, 1828, No. 121, suit was brought by Jl. Sinclair against the administrators, in Westmoreland county, and the process was served on D. Wilson; and a rule of reference was entered by the plaintiff and arbitrators appointed, who, on the 1st June, 1818, reported in favor of plaintiff for one hundred and thirty-seven dollars. There was no appeal, and the report became a final judgment. At that time the plaintiff might refer before he filed a narr. and he did so in this case; and the award and judgment was obtained before the defendant plead or could plead to the action. An execution issued for the hundred and thirty-seven dollars to Nov. 1818, and a return of nulla bona was made upon it. To February term, 1819 suit was brought On the administration bond, and the writ served on the three defendants in this suit, but not on Jane Baldridge: a pleaTwas put in, and in 1825 ^judgment was rendered for the penalty. This judgment being only cautionary, this scire facias was sued out/ in which the plaintiff claims his whole one hundred and thirty-seven dollars, judgement and costs. The following facts are also found, if they could be legally given in evidence under a special plea. On the 5th df September, 1815, an inventory and appraisement of the personal estate of said Robert Baldridge deceased, was duly made, and it was filed in the Register’s office on the 23d of September,-1815. A statement on oath of the debts of the deceased was filed the 2d December, 1815: some of these are hereafter mentioned. On the 16th of February, 1817, John Hunie obtained a judgment before a justice against the administrator for thirty-six dollars thirty-five cents, a transcript of which was, in 1819, filed in the Protho-* notary’s office. And further, that in the Common .Pleas of Westmoreland County Alexander M’ Clurg, at November term, 1814/ obtained á judgment against Baldridge in his life-time, and David Wilson, for the proper debt of Baldridge for four hundred and ten dollars, upon which several executions issued; first/ in the lifetime of Baldridge, and since against D. Wilson, the survivor, and the debt is not yet paid. This judgment would have absorbed the whole personal estate-. On 24th February, 1819, thd administrators presented their account to the register, where it was passed, and was duty confirmed by the Orphans’ Court on the 24th May, 1819. This account shewed the application of the whole personal estate.

On the 9th October, 1813, R. Baldridge and Thomas Bqjdioin, one of the defendants, settled their accounts, and the deceased was indebted upwards of $500, no part of which has been or can be paid. The court gave judgment for the defendants.

Those decisions of the courts of common law, bjr which afi administrator who neglects to plead fully administered, or want of assets, is held to admit assets, are among the most harsh and unreasonable. It was introduced ata time when many supposed the World ought to be governed by logic; and that an abstract syllogism was the only true test of the truth and justice of any thing. The deolaralicn, then always, after stating the demand against tbc decersodj averred that assets sufficient to nay came to the hands of the administrator. The adrnrms'Ts’er often denied the Taire of l'~3 plaintiff, and be omitted to rep1)' to the averment, that see to his llanda; to say that, therefore, ¡hey did corse, or yh?f A w.'.rs admitted they came to his hands, was n non sequiter. At bc.-t only proved, that his attorney was a careless pleader. But it. was so Settled; and whether the law is so in this state; or whether our acts of assembly, or our practice has changed it, 1 shall not inquire at present; I will only say, that if oür statements do not aver that assetts came to the hands of an administrator, it is not easy to say, why in his pleading he should deny what is not alleged, or how an issue could be taken on such plea without a departure. The law continues as above stated in one end of Westminster Ilall, but it has ceased to work injustice; for if the administrator has not sufficient assetts to pay, he has only to procure some friendly creditor to file a bill in chandefy, on which he submits to account; the chancellor then takes cognizance of the whole estate, and • the judgment at law is arrested, and considered as settling the amount due the plaintiff, to which the chancellor decrees so much as by an apportionment of the assets falls to his share. Why we, .who prófess to follow equity, have not in some way attained the same thing in our courts, I do not know. And it is more strange, as by express act of assembly; in all cases before a justice of the peace, the amount due the plaintiff is first ascertained by a judgment, and after that is decided, provision is made to ascertain what portion of such demand can be paid from the assets. It has*been said, that a judgment of a justice is no proof of assets, because their being no pleadings before ajustice, the administrator is not concluded, by omiting to' allege want OÍ1 assetts there; in other ivords, that he is not concluded, because he omitted to do what was impossible. — Be it so: the plaintiff in this case might have filed a declaration or a statement, and called for a plea: — he, has not done so, büt he has done more'; by omitting to declare or file a statement, he had rendered it impossible that the defendant should plead; he has got a judgment without stating his claim, and of course in such a way that the defendant could not state any defence óf any kind.- Unless therefore we are prepared to decide, that the act of administering is an admission of assets, and renders the administrator liable for all claims at once; there is no ground to charge these defendants. As soon as the plaintiff put his claim in such a state as that it was possible for the defendant to allege the want of assetts, he did so, and proved his allegation to be true.

Judgment affirmed;


author: Gibson, C. J.

text:
    LYNN against M’MILLEN.

      alias or pluries capias or summons is a contihunrtce of the originad process;' ii/ therefore, special bail be entered in time in the origina} suit, inr which the writ was returned non esi inventus, it will be a compliance with the c'oiyditions of the bail bond given upon an alius or pluri.es capias»

    An appearance after the return day of the writ,, but within six wcefes, ís a compliancc with the le^al effect of the condifiórr of a bail bond* and it indy Se ¿dead-cd in bar to an action upon it.
    Error to Fayette county.

      William M’MWs?), issued a capias in Case against William <h Lynn, to June term, 1829, and required bail in two hundred and fifty dollars. The writ was returned “non est inventus.” An alias capias was issued to Ociobcr term, 1829, which was returnable on the 26th Ociobcr. This was returned “cepi corpus and bail bond taken.” On the 7th December* 1829* Jindrew d. Lynn became bound as special bail of William J. Lynn in the original suit to-June term. On the 18th January, 1830, and to March term, William M’Millen assignee of William Salter, Sheriff/ brought an action of debí upon the bail bond, given by William J. Lynn and Jindrew J. Lynn to- the sheriff, upon the alias capias; to which the defendants plead uCompendt ad diem” and the plaintiff replied “nul tiel record.” Upan this issue the court rendered a judgment for the plaintiff, which was subsequently liquidated by a writ of inquiry of damages at one hundred and sixty dollars sixty-two cents.
    The error assigned was, that (he court should have rendered a judgment on the issue, for the defendants,

      N. Ewing, ftfr plaintiff ill error.-

      JÚaioson and M’ Kennonf donirct.-

   The opinion of the court was delivered by

Gibson, C. J.

In actually entering special bail on the last day of the six weeks, the defendants undoubtedly intended to perform the condition of their bond; and were the act not such as to avail them by pleading, no court would hesitate to relieve them-in a summary way from the consequences of the officer’s blunder. But the bail as entered, was in fact a performance of the condition, and pleadable strictly as such. Instead of being the inception of a fresh suit an alias.orpluries is, at the common law, but a continuance of the process; and there is no reason why it should n'ot be so here whore the capias or summons is the originating writ. It was held to he strictly, so in Schlosser v. Lesher, 1 Dal. 411, where to a plea of the statute of limitations/ the plaintiff successfully replied an original summons-on a particular day within the six years; which he could not. have done, had not the action been commenced by such original, and continued by the further process without break ¡or interval. That such an interval will lot in the bar of the .statute, is shewn by Harris v. Dennis, 1 Serg. & Rawle, 236, where it was not saved by a previous action within the six years, i.n which the plaintiff had suffered .a non suit. All, then, is process in the same action, the entries in which, may be under the original or any subsequent writ. The practice has indeed been to continue the entries under the writ on which the defendant has been brought in; and this, though convenient, is not to have the efleet of changing a supplementary writ into an original. A voluntary appearance to a summons returned nihil, would undoubtedly enable the court to proceed on it; and whether on the original or a subsequent writ, could make no difference, the exigence of either being answered by the-defendant’s appearance in court, so that if the proceedings were docketed on the alias -orpluries, no one would think of pleading the original writ as a previous and an independant action, depending for the same cause. Just so in the present case. The defendants were in court to answer the action by the docketing of their recognizance under the enriy of the original writ; and the part of the docket in which their appearance was recorded could in no wise be material. The remaining exception, that aa appearance after the return day,does not support the plea of covtperuit ad diem, nor, though within the period prescribed by the rule of court, save the penalty of the bond, at first appeared more plausible. But the apparent, difficulty on that head is removed, by adverting to the Stat. 4 Ann, c. 15, sec. 20, which ena.blesthe court after the assignment of the bail-bond, to give such relief to the parties in the original action, and to the bail upon the said bond or other security taken from the said bail, as is agreeable to justice or reason; and that such rule or rules of tho said court shall have the nature and effect of a defeasance to such bail bond or other security for bail.” By force of the statute, therefore, an appearance after the return day of the writ, but as here, within the six weeks, is a compliance with the legal effect of the condition, which may be pleaded in bar; and in this respect the practice is different from the procedure to obtain relief from the consequences of an actual forfeiture, which is administered in a summary way, on an application to the equitable powers of the court. There was in truth, therefore, such a record as the de|cndanls had alleged in their plea.

Judgment reversed.


text:
    TURNER against PATRIDGE.
    A grandfather devised to his grandsons a tract of land, which, by his will, lie directed should be patented, and the price thereof paidoutofhis estate: an uncle of the de, visees obtained the patent and paid for it, and brought an action against the execu-, tors of the grandfather’s estate to recover it back. Held; That it was a voluntary payment by him, which gave no right of action.
    A prochein-ami is recognized by the laws of Pennsylvania and our practice for certain purposes, but never as having the power of a trustee or guardian.
    Writ of error to the Common Pleas of Allegheny county.
    This was an aetio'n of assumpsit by Thomas Patridge against Reverend John Riddle and John Phillips, executors of William Turner, deceased. By the last will of Wm. Turner, deceased, he devised to the minor children of his deceased son John a tract of land, and directed that a patent should be obtained for it; which should be paid for out of his personal estate. The plaintiff, Thos. Patridge, was the uncle of the devispes, and the executor of their father’s estate. He took out the patent in trust for his nephews, and paid for it; and brought this action against the executors of Wm. Turner, to recover the amount, so paid by him. The objection to the plaintiff’s recovery was, that it being a voluntary payment, it gave him no right of actiqn.
    The court below was of opinion, and so instructed the jury, that a court of equity would recognize the acts of Patridge as a prochein-ami to the devisees, and if he acted with good faith in procuring the patent, he was entitled to recover the amount paid by him for the patent, with interest, and a reasonable compensation for his services in the business.

      W. Forward for plaintiff in error.

      W. W. Fetterman, contra.

   The opinion of the court was delivered by

Gibson, C. J.

In procuring the patent without compulsion of the law or request of the party interested, the plaintiff below laid the defendants under a moral obligation which, though sufficient as a consideration for an express promise, raised no promise by implication of law; and this was given in charge to the jury. But to give effect to this moral obligation in another shape, the plaintiff, in the character of a prochien-ami, was placed- on the vantage-, ground of those for whose use the patent was to be procured, and who, in the event of the defendants’ neglect or refusal, might by their guardian have procured it at the defendants’ expense. But merely as the executor of their father’s will, under which they do not derive title to the land, the plaintiff stood in no priwity to them as regards this transaction; and his relation of uncle gaye him no right to interfere in it in the character of a prochein-ami. In the seventh section of the act constituting the Orphans’ Court, the term is used along with the word tutor, to signify a curator, appointed by the court, and as another term to designate the office of a guardian; beside whom I know of but one other prochein-ami whose acts, as such, are recognized by the law. An infant may sue by his qext friend appointed, at the common law, hy the court in which the action is pending, and by our practice, without any appointment at all, in order to supply the want of capacity in the infant to afford in his own'person, a party responsible on the record for the costs; but as the execution of the trust is under the supervision and control of the court, there is no reason why our practice of constituting a prochein-ami, without the express sanction of the court, should be disturbed. Such a next friend is in the nature of a guardian ad litem, the chief difference being, that the former is the curator of an infant plaintiff, and the latter of an infant defendant. 1 Tidd. prac. 69. But it would be another matter to permit an arbitrary and irresponsible agent to affect the estate of the infant, or acquire rights of his own, by acts in pais. Every thing might have been regularly done on the part of the plaintiff, by procuring the authority of the guardian, if there were one, or by becoming guardian himself. But it would be not only dangerous, but unwarranted hy any principle of law, to recognize an irregular guardianship like the present; and though desirous to give effeetto the imperfect obligation that evidently rests on the defendants, yet, sitting in a court whose judgments are precedents for transactions, the morality of which may happen to be the other way, we mustnoUct the hardship of the case warp the abstract principle by which it is to be governed.

Judgment reversed.