author: Mr. Justice Woodward

text:
    Taylor et al. versus Preston.
    1. Young by articles sold land to Preston, who paid part of the purchase-money and assigned the articles to the defendants, subject to the remainder, for which Young simultaneously sued Preston and the defendants ; Preston confessed judgment and Young conveyed to him. On the trial against the defendants, Held that evidence for defendants of judgments subsequently recovered against Preston was inadmissible,
    2. Preston held the legal title as trustee for defendants ; upon their payment of the purchase-money he could have been compelled to convey, and Preston held nothing on which the judgments could be a lien.
    3. Any payment to Young by defendants would have enlarged their estate in proportion to the amount paid.
    4. A parol promise by the defendants that in addition to the consideration to be paid to Preston for the assignment they would pay Young the unpaid purchase-money, was not a promise to pay the debt of another within the Act of April 26th 1855.
    5. The statute does not apply where the promise is to pay the promissor’s own debt, although the debt of a third person be incidentally guarantied.
    6. Under the Act of May 15th 1874 a stenographer’s notes are to be those made up under the view, subject to direction of the cburt, and with their approval.
    7. The stenographer’s notes have the eifect of the prothonotary’s certificate of the record of a cause ; and are subject to be modified in accordance with what may be judicially found to be the fact.
    8. Parol evidence of a consideration not mentioned in the deed is admissible, if it be not inconsistent with that expressed.
    9. A purchase of land subject to the payment of purchase-money to a third person, is a covenant by the purchaser to pay, on which an action can be maintained in the name of the vendor to the use of him to whom it is due.
    10. Whatever shows the intent of parties to bind themselves to the performance of a stipulation, may be deemed a covenant without regard to the form of expression.
    11. One who buys expressly subject to an encumbrance, as between the vendor and himself, makes the debt his own, and is bound to protect the vendor.
    12. Where the proof of a contract rests upon parol evidence, its sufficiency is for the jury, and it is error for the court to withdraw it from them by peremptory instructions.
    November 18th 1875.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.

      Error to the Court of Common Pleas of Butler county: Of October and November Term 1875, No. 146.
    This was an action of assumpsit, brought November 14th 1873, by John Preston, for the use of Simon Young, now for the use of W. D. McCandless, against H. L. Taylor, John Satterfield, J. J. Yandergrift and George Y. Forman, trading as H. L. Taylor & Co.
    The declaration was that on the 19th of February 1873, Simon Young, by articles of agreement, under seal, agreed to sell to John Preston a tract of land, the deed to be made when the purchase-money should be paid. In consideration, Preston was to pay $20,000, as follows: $200 in hand; $5000 on the 15th of April 1873; $7900 on the 15th of October 1873, and $7900 on the 15th of April 1874 ; that Preston went into possession and paid the first instalment of $5000, and on the 19th of March 1873, by writing, under his hand, assigned his interest in the contract and land described in-it to the defendants; that the defendants thereupon agreed and promised Preston, as part of the consideration-money, that they would pay Young the residue of the purchase-money mentioned in the contract when the same became due, to wit: $7900 on the 15th of October 1873, and $7900 on the 15th of April 1874; that tbe defendants took possession of the land in pursuance of the assignment, but refused to pay the instalment due on the 15th of October 1873, &c.
    The case was tried March 11th 1875, before Bredin, J. The evidence as sent up with the records was taken by the official stenographer.
    The plaintiffs gave in evidence the articles of agreement between Young and Preston, as set out in the declaration; also the assignment, which was endorsed on the articles, viz.:—
    “Petrolia, Pa., March 19th 1875.
    For value received, I hereby sell and assign all my right, title and interest in the within described contract to J. J. Yandergrift, George V. Forman, John Satterfield and Hascal L. Taylor, their heirs and assigns. John Preston.”
    They then called John Preston, who testified that he made the contract with Taylor for the assignment of the contract. The witness was then asked, what was the consideration of the contract between him and Taylor k Co. The defendants objected because the contract was in writing.
    Amongst the notes of evidence in the paper-books of plaintiffs in error, being as taken by the stenographer, it does not appear at this point what the ruling of the court was.
    The witness answered, that the defendants were to pay $20,000 and assume all the back payments — the two payments of $7900 each.

      Young testified that he assigned part of the purchase-money of W. D. McCandless.
    The plaintiff having rested, the defendants gave in evidence the record of an action of covenant, brought November 14th 1873, by Simon Young against John Preston. The cause of action was the contract between Young and Preston of February 19th 1875.
    The records showed that the case was on the trial list for the .January Term 1875, and after that the following entry:—
    “And now, to wit, 16th December 1874, defendant appears in his proper person, and,- with consent of plaintiff’s attorney, confesses judgment to plaintiff in the sum of $16,669, being for the instalment of purchase-money of the land described in the contract sued on as well as the last instalment, due 15th April 1874, with costs of suit, release of errors, &c.”
    Defendants also gave in evidence deed, dated December 16th 1874, from Young to Preston, for the land mentioned in the articles of agreement between them.
    Defendants offered to show judgments against Preston subsequent to Young’s judgment. This was objected to by the plaintiffs. The court decided to admit evidence of judgments against Preston before the assignment to the defendants, but not after, and sealed a bill of exceptions. *
    The following are points of the defendants which were refused:—
    2. The assignment by Preston to defendants of all his right, title and interest in the contract with Young for a valuable consideration paid to Preston, will not render defendants personally liable to Preston for payment of the balance of purchase-money, and plaintiff cannot recover.
    4. Even if the law would raise an implied promise on the part of the defendants to indemnify John Preston from the payment of the balance of purchase-money, he must pay Young before he can recover.
    The court, March 11th 1875, instructed the jury, “ to return a verdict in favor of the plaintiff for $8557.08, under the evidence in the case.”
    On the same day the jury rendered a verdict for that amount.
    On the 10th of September 1875, the defendants moved “ that the judge who tried the case direct the reporter to correct his report of the trial by the insertion of the following rulings of the court,” &c. The rulings were then set out. The court decided as follows:—
    “After hearing and argument of above motion, the matters for which correction is asked being disputed by plaintiff’s counsel, the court do refuse the motion, the law having made the stenographer’s notes the best evidence in cases of dispute. But to bring the matter fairly before the higher court, do certify that on the trial of the causes, when John Preston, a witness for plaintiff, was asked by plaintiff what the consideration of the contract between him and defendants was, and said question was objected to by reason of the contract being in writing, the court decided to admit the evidence, saying, in substance, ‘ that it was competent to show the consideration by parol--, and that the evidence was not offered or received for the purpose of proving a parol promise to pay the purchase-money due.’ ” •
    By the Act of May 15th 3874, Pamph. L. 182, providing for the appointment of stenographers by the courts, it is enacted that their notes “ shall be deemed and held to be official and the best authority in any matter of dispute, and a copy of the same shall be used by the parties to the cause in any further proceedings, whenever the use of the same may be required.
    The defendants, plaintiffs in error, alleged in their paper-book that there were other rulings by the court on questions of evidence, which were not accurately reported by the stenographer.
    The defendants took a writ of error; they assigned for error:—
    1. Rejecting evidence of judgments against Preston.
    3,_4. Refusing defendants’ 2d and 4th points.
    5. Instructing the jury to find for the plaintiffs.

      Dodd Lee, and Ash Starrett, for plaintiffs in error.
    The .promise, if made, is obnoxious to our Statute of Frauds: Act of April 26th 1855, sect. 1, Pamph. L. 308, 1 Br. Purd. 724, pl. 4; Maule v. Bucknell, 14 Wright 39; Townsend v. Long, 27 P. F. Smith 143. By pursuing Preston’ on his contract, and recovering a judgment against him, Young made his election : Chew v. Mathers, 1 Penna. R. 474; Kerr v. Stiffey, 2 Id. 174; Love v. Jones, 4 Watts 465. As to the rejection of the evidence of judgments against Preston, a purchaser may defend against an action for purchase-money by showing encumbrances: Moore v. Shelly, 2 Watts 257 ; Dalzell v. Crawford, 1 Parsons 53. In order to charge the purchaser with an encumbrance as a debt of his own, the purchase must be expressly subject to it: Campbell v. Shrum, 3 Watts 60; Woodward’s Appeal, 2 Wright 322; Buckley’s Appeal, 12 Id. 491; Burke v. Gummey, 13 Id. 518; Metzgar’s Appeal, 21 P. F. Smith 330.
    • G. McGandless and J. G. Thompson, for defendants in error.
    Where a vendee sells land, purchase-money for which is still due by him to his vendor, suit may be maintained against the purchaser in the name of the vendee for the use of his vendor: Campbell v. Shrum, a, supra; Blank v. German, 5 W. & S. 40; McCracken’s Estate, 5 Casey 426; Craig’s Appeal, 2 Wright 322; Burke v. Gummey, 13 Wright 518. Parol evidence is admissible to prove that the purchaser agreed to pay the unpaid purchase-money: Buckley’s Appeal, supra. As to the Statute of Frauds they cited Malone v. Keener, 8 Wright 109; Arnold v. Steadman, 9 Wright 186; Uhler v. Farmers’ Nat. Bank, 14 P. F. Smith 409.
   Mr. Justice Woodward

delivered the opinion of the court, January 6th 1876.

In the course of the trial, three judgments against Preston, the plaintiff below, entered in January and February 1875, were offered in evidence on the part of the defendants. The rejection of this offer is made the ground of the first error assigned in this record. Preston had purchased from Simon Young, by articles of agreement executed on the 19th of February 1873, one hundred and twenty acres of land in Concord township, in the county of Butler, for $21,000, and having paid $5200, had assigned the articles to the defendants on the 19th of March 1873, two instalments of the purchase-money due to Young, amounting to $15,800, remaining unpaid. In November 1873, Young had brought an action of covenant against Preston for the amount of the instalment payable on the 15th of October 1873, and on the 16th of December 1874, Preston had confessed judgment for $16,669, embracing not only that instalment, but the remaining one, which had become payable on the 15th of April 1874. Cotemporaneously with the confession of this judgment, Young had made to Preston a conveyance of the land. When the cause was tried, therefore, Ereston held the legal title, subject to the lien of Young’s judgment. He had no other interest or estate, for his equitable lights had passed by his assignment to the defendants. As to them he held the property as trustee, and upon payment by them of the original purchase-money remaining due, a conveyance to them could have been enforced. There was nothing, then, either of title or possession, in Preston on which the judgments could become a lien. The land belonged to the defendants, subject only to the purchase-money residue; and the amount of that residue was measured exactly by the amount of the judgment confessed to Young. The defendants could have paid Young at their pleasure, and every dollar paid on his judgment would have enlarged in exact proportion the estate, not of Preston, but of themselves. It is objected that if Preston, being clothed with the legal title, had himself made payment to Young, he would have acquired an interest that would have been hound by a judgment lien. Perhaps that is so, but the simple answer is, that no such payments are pretended to have been made. It is objected also that in the event of a sale on Young’s judgment for a sum exceeding its amount, the subsequent lien creditors of Preston could claim the excess. But what would the defendants have to do with that ? Whatever might be their relations to the purchaser at the sheriff’s sale, the question of distribution would be between the holders of liens on the legal title, and in such a question the defendants could have no possible right to interfere. The admission of these judgments would have been irrelevant to any issue in the cause.

Three questions have been argued as arising out of the second, third and fourth assignments of error. It is insisted on behalf of -the defendants below, first, that the alleged undertaking of the defendants was a verbal promise to pay a debt due by Preston to-Young, and under the Act-of the 26th of April 1855, cannot be enforced ; secondly, that under the pleadings and evidence on the record, a suit by Preston for the use of Young cannot be maintained, and that recovery only could be had, if at all, in a suit brought in the name of Young himself; and thirdly, that even if the law would raise an implied promise on the part of the defendants to indemnify Preston, he must pay Young before he can recover. It is proposed to treat these objections in their order.'

1. Is the contract here alleged within the prohibition of the Statute of Frauds of the 26th July 1865 ? It is to be borne in mind that the defendants were acquiring property for their own use. They were contracting to serve the purposes not of the plaintiff but of themselves. And the agreement, if it was made, to pay Young was not only a stipulation to pay a debt which Preston owed, but a stipulation to pay the price of property! they had bought. In no ordinary sense did they become sureties*or guarantors for Preston. Buying the land, the promise to pay for it, whatever the form, was a promise to pay their own debt. To hold the statute applicable to a case like this, it is believed, would be botKa violation of principle and a departure from authority. That statute does not require a promise to be in writing where it is in effect to pay the promissor’s own debt, though that of a third person be incidentally guaranteed; it applies to the mere promise to become responsible, but not to actual obligations: Malone v. Kenner, 8 Wright 107. Where, after a sale of real estate under articles, and entry of the vendee into possession, a mechanics’ lien was entered against a building on the land, which the vendor, pending an action of ejectment, brought by him for the non-payment of the purchase-money, promised to pay when the property came back to him, the lien-holder agreeing to stop proceedings, it was held that the vendor was liable upon his promise, and that it was not within the statute : Arnold v. Steadman, 9 Wright 186. In Maule v. Bucknell, 14 Id. 39, the general results of the authorities are stated with great clearness. “It cannot be denied,” it was said by Strong J., “ that there is a class of cases in which the consideration has been more regarded than the nature of the promise. They regard the consideration, however, as of importance only where it is either a substantial transfer of the creditor’s claims to the plomissor, making the transaction a purchase, or a transfer to the promissor of a fund for the payment of debts, or property or securities charged with its payment. If such funds come to him from either the debtor or promissee, his agreement need not be in writing ; for, as was said in Williams v. Leper, 3 Burr. 1890, the promise is considered as not to pay the debt of another, but the debt of the property which has come to his hands. * * * The promise may be unaffected by the statute, though the original debt remains, if the promissor has received a fund pledged, set apart, or held for the payment of the debts.” The application of these principles to the alleged facts of the present case manifestly withdraws it from the operation of the Act of 1855.

2. Throughout the trial in the court below, as well as in the argument here, the ground was taken by the plaintiff that when he assigned the contract he had made with Young to the defendants, it was with the express agreement that they should assume the instalments of unpaid purchase-money, and meet them as they should mature. Some confusion as to the exact character of the evidence produced has been introduced into the cause by an alleged inaccuracy on the part of the stenographer in reporting the ruling of the court when the evidence was offered. Preston, the plaintiff, was on the stand, and having been asked to state the consideration of his contract with the defendants, objection was made to the question on the ground that the contract was in writing. It does not appear from the notes that the point raised was decided at all. Application was subsequently made to the court for the correction of the record of the testimony. This was refused because the law had made these notes the best evidence in cases of dispute. The judge who tried the cause has certified, however, that the eourt decided to admit the evidence, saying, in substance, that it was competent to show the consideration by parol, and that “ the evidence was not offered or received for the purpose of proving a parol promise to pay the purchase-money due.” While this misunderstanding may have no evil influence in this particular case, it may be remarked in passing that its occurrence indicates the possibility of mischief that may flow from too liberal a construction of the Act of the 15th of May 1874. In providing by the second section that “ the stenographic notes of the testimony in all proceedings in any trial of the facts, together with the charge of the judge, shall be deemed and held to be official, and the best authority in any matter of dispute,” the legislature did not design to subordinate the power of the judge to the power of the stenographer. The administration of the law has been committed to the courts by the Constitution, and the same Constitution has provided that judges, and not clerks, shall compose those courts. Responsibility for the conduct of legal business must rest where it has been constitutionally lodged. The legislature would have no power, as they could have had no intention, to impose upon the clerk who records the details of the trial, the duties of the judge who tries the cause. The stenographic notes that are to be “ the best authority in any matter of dispute,” are the notes made up under the eye and direction, and with the approval of the court. They have then the effect of the prothonotary’s certificate of the record of a cause, and are subject to be modified and moulded in accordance with, what may be judicially found to be the fact precisely as its records are always subject to the court’s control.

In any aspect in which the record can present the case, the effect of the evidence was to tend to prove the terms on which the defendants accepted the assignment of the agreement between Young and Preston. The consideration paid at the time of the transfer was $20,000, in addition to which the sum of $15,800 due to. Young was to be assumed. Of the admissibility of the evidence on grounds apart from the question raised as to the effect of the Statute of Frauds there can be no doubt. In Buckley’s Appeal, 12 Wright 491, where a deed for the recited consideration of $4650, had made the property described “subject to the payment of $1200, the amount of a judgment against Peter Farnum, held by Caleb Hoopes,” an auditor appointed to distribute the proceeds of the sheriff’s sale of Farnum’s property, permitted proof to be given, that when the deed was made, the purchaser had agreed to pay not only the judgment of Hoopes, but the mechanics’ liens to which the mill on the land conveyed was subject. It was held that the action of the auditor was right, and that the rule excluding parol evidence to contradict or alter a written instrument, does not prevent the giving parol evidence of a consideration not mentioned in the deed, *if it be not directly inconsistent with that expressed: 1 Greenl. Ev., §§ 285,304, and White v. Weeks, 1 Penna. R. 486, were quoted as authority for the decision of Buckley’s Appeal.

If the court below had been justified in assuming as they did that the evidence received established the fact that the agreement to pay the purchase-money due to Young was part of the consideration for the assignment, the legal rule which they applied to the fact assumed would have been strictly accurate. It was decided in Campbell v. Shrum, 3 Watts 60, that the purchase of a tract of land, “subject to the payment of the purchase-money and interest,” due to a third person, is a covenant by the vendee to pay such purchase-money and interest, upon which an action may be maintained in the name of the vendor for the use of him to whom it is due. In the opinion of the court, Sergeant, J., said: “No particular form of words is necessary to constitute a covenant. Whatever shows the intent of the parties to bind themselves to a performance of the thing stipulated, may be deemed a covenant, without regard to the form of expression made use of.” In Mc-Cracken’s Estate, 5 Casey 426, Socin had sold a lot of land to Springer for $430. Springer had paid $30, and assigned his agreement to McCracken, subject to the unpaid purchase-money due Socin. After the death of McCracken, who had paid during his lifetime three annual instalments to Socin, and in the distribution of his estate by an auditor, the administrators of Socin claimed the balance on the contract originally made with Springer. The auditor allowed the claim, which the Orphans’ Court subsequently rejected, appropriating the money to the heirs at law. On appeal, the decree of the Orphans’ Court was reversed. In the opinion delivered by Lowrie, J., it was said: “Then comes the question, was the debt due to Henry Socin, a debt of the estate ? We think it was, for though McCracken did not bind himself by covenant to pay the balance of the purchase-money due H. Socin, yet by buying the equitable title, and getting the assignment of the articles from Springer, he impliedly undertook to pay the balance and keep Springer clear of it. His debt and duty were directly to Springer, and through him to Socin. The authority of the rule settled in Campbell v. Shrum was recognised in Walker v. Physick, 5 Barr 193, and in Woodward’s Appeal, 10 Wright 322, and the rule itself was applied in Blank v. German, 5 W. & S. 36, in Burke v. Gummey, 13 Wright 518, and in Metzgar and Gernert’s Appeal, 21 P. F. Smith 330. In Burke v. Gummey, it was said in the opinion of the court, that “ we have no cases not reconcilable with the doctrine that one who purchases expressly subject to an encumbrance as between the vendor and himself, makes the debt his own and assumes to protect the vendor.” If it had been competent to treat the evidence as establishing the plaintiff’s theory of the case that the defendants in purchasing from Preston took the property subject to the duty of paying the instalments due to Young, these authorities would be found ample to vindicate the ruling of the court.

3. The assignments of error under review were argued here as if a point had been presented to the court predicated of the fact of a sale of the property by Preston to the defendants, without any agreement or understanding in relation to the purchase-money unpaid. Such, may possibly be held to have been the meaning of the third and fourth points of the defendants. While, under the evidence, it is not apparent how the question could have arisen in any practical way, still, as the evidence was entirely parol, and it was possible the jury would disbelieve it all, the defendants were entitled to something more than a summary and peremptory refusal of the points. If the transaction established by the proof was merely a transfer by assignment of the articles of agreement, with no understanding whatever in regard to the payment of the purchase-money to Young, the jury would be required to look into the circumstances attending and surrounding the contract, in order to adjust the rights of the parties. From the value of the property, the priee originally paid, the amount of purchase-money due, the expenditures of the vendee, and the consideration paid to him by the assignees, they would ascertain by whom it was in the contemplation of the parties that the burden of the hack instalments should be borne. In the absence of all contract stipulations, the vendee could not, in any event, maintain an action except upon an implication of indemnity, which the law might create in his favor after he should have been compelled to pay the purchase-money debt to his vendor.

■ The fifth assignment of error is well founded. As the proof of the contract rested upon parol evidence alone, its sufficiency was exclusively a question for the jury. In Tobin v. Gregg, 10 Casey 446, it was held to be error to withdraw the fact of the defendant’s assumption of an alleged indebtedness from the jury, e.ven where the consideration was adequate, and to charge that if his parol evidence was believed the plaintiff was entitled to recover. Here the direction was peremptory and unqualified. The mistake undoubtedly grew out of the fact that the attention of the court was engrossed by the legal aspects of the case, but its occurrence makes a new trial unavoidable.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Speyerer & Co. versus Bennett’s Executors.
    1. The plaintiffs sued Bennett as endorser of a note held by them ; pending the suit Bennett’s deposition was taken ; he died before the trial. Held, that the deposition was admissible, under the Act of March 28th 184Í, s. 1.
    2. The proviso in the Act of April 15th 1869, excludes the living party in a suit against executors or administrators, on the ground of inequality.
    3. The Act of 1814 is not repealed by the Act of 1869.
    4. Whether the living party, not having perpetuated his testimony in the life of the deceased, can be heard in answer to the deposition of the deceased party, not decided.
    5. Evans v. Reed, 28 P. E. Smith 415, re-affirmed.
    November 18th 1875.
    Before Agnew, C. J., Sharswood, Williams, Merctjr, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Beaver eounty: Of October and November Term 1875, No. 249.
    This was an action of assumpsit, brought September 23d 1873, by H. J. Speyerer and others, trading as Speyerer & Co., against Hugh Bennett.
    The cause of action was two promissory notes, made by William Kennedy, endorsed, as plaintiffs alleged, by Bennett and discounted by plaintiffs' for Kennedy. Bennett’s defence was that he had not endorsed the notes. His deposition was regularly taken to prove his defence; it was filed September 12th 1874. Bennett having died, his death was suggested of record June 14th 1875, and Maria Bennett and James J. Hazen, his executors, substituted.
    The case was tried June 15th' 1875, before Hice, P. J.
    H. J. Speyerer, one of the plaintiffs, was examined as a witness on their behalf. The defendants then offered the deposition of their testator.

      The offer was objected to on the ground that “the death of Bennett having closed the lips of the plaintiffs,” the deposition was inadmissible under the proviso of the Act of April 15th 1869, sect. 1, Pamph. L. 80, 1 Br. Purd. 624, pi. 16. The court admitted the deposition and sealed a bill of exceptions for the plaintiffs.
    The verdict was for the defendants.
    The plaintiffs took a writ of error and assigned the admission of the deposition for error.

      S. B. Wilson, for plaintiffs in error,
    cited Allum v. Carroll, 17 P. F. Smith 68.

      Chamberlin <j- Peirsol and B. B. Daugherty, whom the court declined to hear, were for the defendants in error.
   Judgment was entered in Supreme Court, November 26th 1875,

Per Curiam.

This case is ruled by the decision in the case of Evans v. Reed, heard at Harrisburg last May, and decided at this term; opinion by Mercur, J. : 28 P. F. Smith 415. The deposition of Hugh Bennett was taken when both parties were alive, and the plaintiff had an ample opportunity to cross-examine him. Had Bennett lived it is conceded the deposition was admissible under the very words of the Act of 28th March 1814. What has occurred to make it incompetent ? Not the death of the plaintiffs, or any one of them, and a substitution of the executors or administrators. The person dying is the witness himself, whose substituted representative is seeking to give the deposition in evidence against the living parties. These parties insist on what ? Not that the deposition was taken irregularly; not that they had no opportunity to cross-examine; not that their own depositions might not have been taken to prevent the loss of everything they knew; but insisting on the loss of the defendants, of the knowledge contained'in the deposition, by the accident of a death which has left nothing but this written statement of facts. But it is said it offends against the proviso of the Act of 15th April 1869, that “ this act shall not apply to actions by or against executors, administrators or guardians.” But against whom is this process directed ? The act says no intent or policy of law shall exclude a party or person from being a witness. Provided — provided what ? Clearly that no party or person shall testify in actions by or against executors, &c. It is the living party or person then who is excluded, and this, as has been held repeatedly, on the ground of inequality. But the deposition of the deceased party is not within the letter of the act, for it is the testimony of the dead party which is offered for the execution against the living party. Does this offend against the spirit of the act? Clearly not, for the living party had the same means of preserving his own testimony against loss by death, and could cross-examine, aided by the light of his own knowledge. On what principle then are we to put aside the Act of 1814, which preserves and perpetuates the evidence for the purposes of justice ? It is not expressly repealed by the Act of 1869, and no evil consequences demand an implied repeal. The argument that the living party cannot now he heard, against the deceased witness, is not sound, for this is to turn competency into incompetency by an accident, which offends against neither the letter nor the reason of the law. How far the living party can now be heard is not the real question, for the question before us concerns not the present state of the case, but that which existed when the deposition was taken. It may be- that not having perpetuated his testimony by a written deposition he cannot now be heard against the deceased witness, but when the deposition- of the deceased was taken, he could have been heard, and had all the privileges, both of an examining party, and a competent witness. We perceive no reason therefore to strike down the operation of the Act of 1814, by holding it to be impliedly repealed, and therefore reaffirm the case of Evans v. Reed.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Shenango and Allegheny Railroad Co. versus Braham.
    1. In an appeal under the Act of April 6th 1856, by a railroad company from an assessment of land damages, the issue was in the form of trespass quare clausum fregit; the court charged that the company had committed a trespass in entering on the land. Meld to be error, the company’s entering upon the land was lawful.
    2. The land on which the road was located was used as a farm; the court charged that in estimating the advantages and disadvantages, they were to consider only such as resulted to the 11 farm as a farm.” - Meld to be error.
    3. In estimating the damages the jury are not to be limited to any particular use of the land.
    4. The jury are to consider the market value of the land before and after the alleged injury.
    5. In estimating the market value of land everything which gives it intrinsic value is to be taken into consideration.
    November 19th 1875.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Butler county: Of October and November Term 1875, No. 154.
    The proceedings in this case were commenced March 20th 1874, upon the petition of William P. Braham for the appointment of viewers to assess damagers to his farm in Mercer township, by reason of the construction of The Shenango and Allegheny Railroad through it. The viewers having reported, the defendants appealed to the Court of Common Pleas; the court directed that the case be put at issue in the form of action of trespass quare clausum fregit, in which the petitioner was plaintiff and the railroad defendants.
    The case was tried April 13th 1875, before McJunkin, P. J.
    The evidence was that the plaintiff owned a farm containing about 146 acres of land, through which the railroad was constructed. He gave much evidence as to the permanent injury done to the farm by the construction of the road, and also as to the temporary injury which accrued during the construction to portions of the farm not occupied by the railroad. The purpose of the evidence was mainly to show the injury to the farm as a farm.
    The defendants gave evidence for the purpose of showing that the advantages by reason of the location of the railroad exceeded the disadvantages, and that its market value was greater after the railroad was made than before.
    This statement, with the answers to the points and the charge, will sufficiently exhibit the questions considered and decided by the Supreme Court.
    The following were defendants’ points and their answers:—
    1. The jury should not find for the plaintiff unless they are satisfied, by the evidence, that the fair market value of his land has been reduced by the location of the road through it.
    Answer. “ That question we have answered in our general charge, that it is the advantages and disadvantages to the property as a farm that is to be considered. We answer this point in the affirmative.”
    2. If the jury are satisfied, by the evidence, that the location of the road through the land of the plaintiff has enhanced the value of it to an amount exceeding, or equal to, so much of the land as has been taken for the road, and his necessary and direct expenses consequent upon the location of it, they should find for the defendant.
    “We consider that we have answmred, in effect, this point in our general charge, and so far as we have answered, it was in the affirmative.”
    3. The jury should inquire for the difference between the fair market value of the whole tract before any of it was taken for the road, and the fair market value of what remains to the plaintiff after the taking.
    • “ In effect we have answered this point in a different way, with the exception that the advantages to the whole, as a farm, are to be considered. With that exception we have answered this point, in effect, and so far as we have, in the affirmative.”
    * * * * * *
    6. The advantages which are to be estimated as against the disadvantages, caused by the railroad, are such as apply to the property, and result from the construction of the road, although property in the neighborhood may also be benefited, without suffering any disadvantages caused by the location of the road over it.
    “This point we might affirm, but as it is not very clear to us, we refuse it. That brings to view one matter on which we might remark, that it is with regard to what we believe the law to be in estimating the damages. We have said already, that you must confine your attention to the damages inflicted upon the plaintiff as a farmer, and to his property as a farm, and that the advantages must be advantages that the plaintiff derives from the construction of the railroad over his farm, and that those advantages must be to him, no matter whether advantages to the community or not, they must be advantages to him, to his farm as a farm. That is- his business, that is his purpose, that is the way he used the property when the defendant took possession of it.” * * *
    The court, amongst other things, charged :—
    * * * “ In this case the court directed the form of action to be trespass, brought by the plaintiff, for the trespass committed upon his property by the defendant in constructing a railroad, and to ascertain the amount of damages alleged to have been committed upon his property. Under the rules we shall hereafter direct your attention to, that will be the amount of your verdict if you ascertain that the plaintiff has sustained damage. We say to you, notwithstanding the fact that the law gives the railroad company full and entire authority, by their hands and teams to enter upon the premises of any individual and build and construct a railroad regardless of the wish of the landholder; but the same law holds them strictly accountable for the damages inflicted. * * * We say to you
    that you should have no prejudice against the defendant, but the defendant should have even-handed justice with the plaintiff, no more no less. The plaintiff in this case, William P. Braham, complains that the defendant committed a trespass, we might say a serious trespass, upon his property. He is the owner of a farm in Mercer township, this county. The proof is that the defendant here, some three or four years ago, entered upon his premises, took possession, so to speak, with their teams and hands, excavated and filled the surface, and built and constructed a railroad across his farm and property, as he swears to you, and in doing so they committed a trespass and inflicted an injury upon his property. The testimony and the proof is all for you. You must keep in your minds a record of the testimony so that you can readily apply the testimony to the law. It will be for you to say how far the plaintiff has given you proof of the trespass and injury inflicted upon his property by the defendant. He says, in the first place, that the defendant entered upon his premises without permission ; that he never gave them any right of way; that he never gave them permission to enter upon his premises. Under the law the defendant had a right to go upon his farm regardless of his consent. He says they did so take possession of the premises in the way and manner proven to you. * * * In addition to this, he has given proof, whether it.satisfies you or not it is for you to remember the proof, that they have committed a trespass upon his property, to what extent will be for you to say from the testimony in the case, by their workmen and teams passing indiscriminately over his farm during the building and construction, of the road, throwing down fences, passing through fields, trampling upon and injuring the soil for present and probably future cultivation.

      * * * These are some of the prominent trespasses complained of by the plaintiff as committed upon his property and premises, and for this he claims compensation. We have said to you, and y.ou will recollect, that the defendant as an individual has not the right to take' and appropriate the private property of a citizen, although the law- gives the defendant the right to construct a road, regardless of the wish and will of a citizen, while they can do that, can appropriate private property in that manner and inflict injury ; yet they must make full and ample compensation for all the property taken and injury done.” * * *
    On the question of damages the court said:—
    * * * “ We say to you that you are to look upon this property as it is, a farm, in considering the advantages and the disadvantages actually resulting from the construction of the railroad. They are to be considered by you as advantages and disadvantages to the farm as a farm, and that brings up this question. The Supreme Court lays down this rule by which the jury may measure the damages; the jury may take into consideration and ascertain from the proof, the fair market value of the property at and immediately before the railroad company took possession of the farm or property for the purpose of constructing a railroad. That is one point to ascertain. Then you may take into consideration the fair market value of the farm after the railroad has been constructed ; then as you deduct the less from the greater, that would be, under the rule, the proper measure of advantages and disadvantages. In this case, as in all cases of the kind, no matter how greatly the property increases in value by the construction of the road, the jury cannot give compensation to the defendant or railroad company. * .* *
    “ Under the rule laid down, you must keep your mind fixed upon this point, that the advantage which the plaintiff derives is from the use of the property as a farm, in the manner in which he was accustomed to use it immediately before the defendant took possession for the purpose of constructing the railroad. Then confine your attention to the injuries to the farm as a farm, and for the purpose of using it as a farm .immediately before possession taken by the defendants, that is not considering an offset the different advantages the plaintiff may have or might receive, but the direct and immediate advantage to the farm as a farm by the construction of the road. Neither can the jury take into consideration the fact that the property might be sold for some other purpose to greater advantage than if the road had not been made through it, but you must, for all purposes, take the facts as they are, that it is the plaintiff’s farm as a farm and for farming purposes that has been injured, and it must be his farm for farming purposes that has been benefited by the construction of the road. Then, if you find that the injuries exceed the benefits, in that point of view that would be the measure of damages, the excess of the injuries over the advantages would be the fair amount to return a verdict for in favor of the plaintiff. In other words, to ascertain the value of the property from the testimony of the witnesses with regard to the value, the market value as a farm before the railroad was built, and the market value as a farm after the railroad has been constructed.” * * *
    The verdict was for the plantiff for $1125.
    The defendants took a writ of error.
    In a number of specifications they assigned for error : that the court in their charge treated the defendants as trespassers ; and that they erred in their instruction as to the measure of damages, in limiting the advantages to such as might result to the “ farm as a farm.”

      JE. M. Bredin and Thompson ¿f Scott, for plaintiffs in error.
    The difference in the market value of land immediately before it is entered upon and after the improvement is made is the true test of the measure of damages : Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411; Penna. Railroad Co. v. Heister, 8 Barr 450; Sunbury & Erie Railroad Co. v. Hummell, 3 Casey 104; Searle v. Lackawanna & B. Railroad Co., 9 Id. 57 ; Patten v. Northern Central; Id. 426; Watson v. Pitts. & Connellsville Railroad Co., 1 Wright 469 ; East Penna. Railroad Co. v. Hottenstine, 11 Id. 28 ; Harvey v. Lackawanna & B. Railroad Co., Id. 429 ; Hornstein v. Atlantic & G. W. Railroad Co., 1 P. F. Smith 90.

      L. Z. Mitchell and Or. A. T. A. Black, for defendant in error,
    cited to the measure of damages: Hornstein v. Atlantic & G. Western Railroad Co.; Watson v. Pitts. & Conn. Railroad Co.; Sunbury & E. Railroad Co. v. Hummell; Searle v. Lackawanna & B. Railroad Co., supra ; Pittsburg, F. W. & C. Railroad Co. v. Gilleland, 6 P. F. Smith 445. As to the defendants being trespassers: Brown v. Peterson, 7 Wright 505.
   Mr. Justice Paxson

delivered the opinion of the court, January 6th 1876.

The third section of the Act of 9th April 1856, Pamph. L. 288, regulating appeals from the award of 'viewers appointed to assess damages for the taking of land for the construction of railroads, provides, that after appeal taken, either party may put the cause at issue, in the form directed by the court. This cause was put at issue as in an action of trespass quare clausum, fregit. The form of the issue was allowable under the Act of Assembly. It does not follow, however, that because the issue was formed in trespass, the defendants were trespassers, and it was error to try the cause upon his theory. The defendants were not trespassers. Their entry upon the land of the plaintiff was legal. They took the land in pursuance of an Act of Assembly authorizing such taking. We think, therefore, they have cause to complain of that portion of the charge of the court in which the jury were told that the defendants had committed a trespass upon the property of the plaintiff. The natural tendency of such an instruction ivas to inflame the minds of the jury and to enhance the damages.

But the learned judge of the court below fell into a more serious error in his instructions to the jury upon the measure of damages. They were told that in considering and comparing the advantages and disadvantages of the defendants’ road to the plaintiff, they were to regard only such as resulted to him as a farmer, and to his land as a farm. This idea runs through the entire charge, and appears in the second and each of. the subsequent specifications of error.

We regard the rule as laid down by the court below as too narrow. In one of the early cases upon this subject (Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411), it was held by this court, that the jury should consider the matter just as if they were called upon to value the injury at the moment when compensation could first be demanded; they are to value the injury to the property without reference to the person of the owner, or the actual state of his business, and in doing that the only safe rule is to inquire what would the property unaffected by the obstruction have sold for at the time the injury was committed ? What would it have sold for as affected by the injury ? The difference is the measure of compensation.” This rule has been followed in the Penna. Railroad Co. v. Heister, 8 Barr 450 ; Searle v. Lackawanna and Bloomsburg Railroad Co., 9 Casey 57; Patten v. Northern Central Railroad Co., Id. 426; Watson v. Connellsville Railroad Co., 1 Wright 469; East Penna. Railroad Co. v. Hottenstine, 11 Wright 28; Harvey v. L. & B. Railroad Co., Id. 429 ; Hornstein v. Atlantic & G. Railroad Co., 1 P. F. Smith 87, as well as several cases decided last year, and not yet reported. In none of these cases is there any authority for the doctrine that the value of the land is to be limited to. or measured, by a particular use. The contrary was asserted in the Schuylkill Nav. Co. v. Thoburn, where it was said by Tilghman, C. J.: “ The uncertainty of the business the plaintiffs will be engaged in, and the uncertainty of the profits of the business, is a reason for excluding particular use. Indeed, the use of the land is a collateral consideration.”

It was the market value of the land before and after the alleged injury which the jury were to consider, not the value of the farm as a farm. The word “ farm” is employed merely to designate the use to which the land has been applied by the owner. The particular use, as was remarked by Chief Justice Tilghman, is a mere collateral consideration. In estimating the market value of the land everything which gives it intrinsic value is a proper element for consideration. Land may be applied to various purposes and possesses value for distinct objects. It may be devoted to agriculture ; improved by the erection of buildings or the opening of mines; or it may be adorned for the sole object of contributing to the pleasure or gratifying the taste of the owner. The construction of a railroad through it might utterly destroy its value for some purposes, and yet greatly increase it for others. It is its general market value for any purpose that will induce persons to purchase, which is the true test.

Judgment reversed, and a venire facias de novo awarded.


text:
    Bly versus Second National Bank of Titusville.
    1. In a suit by a national bank against an endorser on a note discounted for the drawer, the affidavit of defence averred that defendant was an accommodation endorser, that part of the consideration was a balance for which the drawer had become liable as accommodation- endorser for another, who had borrowed of the 'bank in excess of ten per cent, of its capital. Held not a defence. Per Trunkev, P. J., adopted by the Supreme Court.
    2. The affidavit also averred, that the note was given (except as above) for renewals and settlement of loans by the bank to the drawer, of which note the drawer of the note in the suit was accommodation endorser; that during all the time of the renewals, the bank had taken, &c., usurious interest. Held to be no defence against the amount of usury, except that part on the note in suit. Id.

    3. Courts will not aid one whose cause of action is founded on an immoral or illegal contract. Id.

      4. This rule should hot be extended so as to encourage violations of contracts for payment of honest debts, as between the parties, because growing out of tainted originals. Id. ■

      5. The drawer of the note in suit being an endorser and not having borrowed the money nor paid- any interest, had no cause of action on account of the payment of illegal interest. Id.

    6. The right of action for the usury was in the drawer of the original note. Id.

    7. O’Hara v. Second National Bank, 27 P. P. Smith 96, recognised.
    November 22d 1875.
    .Before Shauswood, Mercur, Gordon, Paxson, and Woodward, JJ.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1874, No. 266.

      This was an action of assumpsit, brought May 22d 1874, by the Second National Bank of Titusville against Charles M. Bly, as endorser of the following note, of which the plaintiff was the holder:—
    “ $2424.87.
    Titusville, December 26th 1873.
    Four months after date, I promise to pay to Charles M. Bly, or order, $2424.37, at Second National Bank, Titusville, value received. F. W. Andrews.”
    Endorsed “ Charles M. Bly.”
    The defendant’s affidavit of defence was as follows :—
    Frank E. Iiickox, being duly sworn, says : — “ That he resides in the city of Titusville, in said county, and is and has been for four years the cashier and book-keeper of Frank W. Andrews, the maker of the note sued upon herein, upon which the above-named defendant is merely an accommodation endorser, without value or consideration ; * * * that the note herein set up and sued upon was given by said Andrews to said plaintiff in consideration, in part, to wit: in the sum of $1100, to secure that sum, being the balance of so much which said Andrews had become liable to pay said plaintiff by reason of accommodation endorsement, without value or consideration, by him theretofore made on the promissory notes of one Paul W. Garfield, which said Garfield procured to be discounted, and obtained loans of money upon, by and from said plaintiff; that the actual existing liability of said Garfield.to said plaintiff for money borrowed, at the time of said Andrews’ endorsement as aforesaid of his said notes, was about the sum of $60,000; that the amount of the. capital stock of said plaintiff actually paid in at such time was only $300,000; that, in and by the laws of the United States, under'which said plaintiff, is organized and incorporated, the said plaintiff was forbidden to loan said Garfield any sum in excess of one-tenth part of its capital stock actually paid in at that time, to wit: the sum of $30,000, and that said $1100, being part of such sum in excess as aforesaid of such $30,000, was so loaned as aforesaid to said Garfield in violation of and contrary to law, and the loan thereof void.
    “ And deponent further says that the note in suit (except the said $1100 loaned as aforesaid to said Garfield) was given to said plaintiff for and in renewal, continuance, and settlement of loans and discounts made by plaintiff to and for the Climax Mower and Reaper Company, of Corry, Pa., upon which said Andrews was an accommodation endorser, without value or consideration, upon notes and renewals from time to time, given by said company, and endorsed by said Andrews to said plaintiff, beginning with the 9th day of May 1871, and ending on the day of the date of the note in suit, as specified in schedule hereto annexed ; that, during the whole of such period, the rate of interest limited by and under the laws of Pennsylvania for the loan and forbearance of money was six per cent; that, in and by the laws of the United States, under which said plaintiff is organized and incorporated, said plaintiff was and is forbidden to take, reserve, charge or receive, a greater rate of interest than six per cent, upon the loans and discounts aforesaid ; that, during the whole of such period, said plaintiff took, reserved, charged and received, upon and out of the loans and discounts aforesaid, a rate of interest at ten and twelve per cent., as specified in said schedule, amounting in the aggregate to the sum $1475.02, and has by the laws aforesaid forfeited such sum to said Andrews, and said defendant is entitled to and has a legal set-off to that ampunt as against said plaintiff’s claim herein.”
    The schedule referred to in the affidavit of defence showed a number of loans at usurious rates of interest as there set out. The interest charged on the note in suit was $82.42 and was usurious.
    On a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, the court, Trunkey, P. J., delivered the following opinion :—
    “ This action is against the endorser, who was payee of a prom-' issory note, dated December 26th 1873, for $2424.87, drawn by F. W. Andrews. The affidavit of defence avers that Charles M. Bly was an accommodation endorser, and that the note was given by Andrews to the plaintiff on illegal consideration as to part, and is subject to set-off as to the balance.
    “1. The consideration to the extent of $1100 was abalance which Andrews had become liable to pay the plaintiff, by reason of accommodation endorsements theretofore made, on the promissory notes of one Paul W. Garfield, which said Garfield procured to be discounted and obtained loans of money upon from the plaintiff. At, the time of Andrews’s endorsements of said notes, the liability of Garfield to the plaintiff for money borrowed was about the sum of $60,000. The amount of plaintiffs’ capital stock paid in was only $300,000. The said loan by the plaintiff to said Garfield, being in excess of one-tenth‘part of the capital stock of the plaintiff, was in violation of law and the contract of loan void. Thus alleges the affidavit.
    “The 29th section of the Act of Congress of June 3d 1864, commonly called the National Bank Act, provides that: ‘ The total liabilities to any association, of any person, or of any company, corporation or firm, for money borrowed ’****< shall at no time exceed one-tenth part of the amount of the capital stock of such association actually paid in.’ Let it be conceded that the loan by the plaintiff to Garfield was in violation of law, and for this reason was within the well-settled rule, that no action can be maintained on a eontract, the consideration of which is either wicked in itself or prohibited by law. Although the borrower was a party to the violation of the law and had the lender’s money in his pocket, he could have defended against its payment, because the law will not enforce an act which it has prohibited. The only reason for the rule is for the public good. No court will aid a man who founds his cause of action on an illegal act, for he has no right to be assisted when, from his own stating or otherwise, the cause of action appears to arise on an immoral or illegal contract. Surely the defence is not upon any merit of the borrower. It was said by Lord Mansfield: ‘ The objection that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill -in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, of which the defendant has the advantage, contrary to real justice as between him and the plaintiff,, by accident, if I may so say.’
    “ How far the principle is to affect subsequent or collateral contracts, the direct or immediate consideration of which was not inducive to the original illegal act, is an intricate question. It was long ago decided in England, and has often been repeated by our own courts, that ‘ the test, whether a demand connected with an ’illegal transaction is capable of being enforced at law, is whether the plaintiff requires any aid from the illegal transaction to establish his case.’ In Thomas v. Brady, 10 Barr 164, after referring to the test, Rogers, J., approvingly quotes from Story on Contracts : ‘ If an act in violation of either statute or common law be already committed and a subsequent agreement entered into, which, though founded thereupon, constituted no part of the original inducement or consideration, such an agreement is valid.' The rule has sometimes been carried to inconvenient lengths, not because of its unsoundness in itself, but in its application to particular cases. It should be rigorously applied to all unlawful transactions; but not extended so far as to encourage violations of contracts for payment of honest debts, as between the parties, because they grow out of tainted originals. If the taint of the original vitiated every contract growing out of it, however remotely connected with it, it would give protection to fraud upon individuals without compensation in the benefit of the public.
    “ How much was the total amount of Andrews’s endorsement for Garfield does not appear, nor do the inducements which made him directly assume payment of the balance as his own debt. It is certain that Garfield’s notes, endorsed by Andrews, were arranged in some way, and that the latter gave his own obligation with security for the balance. The plaintiff needs ño aid from the original transaction to make out his case. Garfield is no party to the note. The defendant attempts its defeat, not by showing anything done at the time it was given, but because of the turpitude of the borrower and lender when Garfield borrowed money of the bank in excess of the amount the latter was permitted to loan to one person. The violation of the statute was before Andrews settled and gave the note upon which this action is founded.
    “ The ruling in Fowler v. Scully, 22 P. F. Smith 456, holding a mortgage void when given to secure future loans, because of violation of the 28th section of the National Bank Act, impelled me to apply the like principle to a violation of the 29th section in an action brought upon the note given by the borrower for the .money loaned. Perhaps, as contended on one part, the principle does not apply to both sections, but I have been unable to draw a distinction. I am not prepared to go further than I understand the authority of the decision in Fowler v. Scully, and, until better advised, cannot apply the rule to the case of one who, after the loan, upon some new and undisclosed arrangement, voluntarily gave another security.
    2. “ The defence made to the other portion of the note is, that it was given in renewal, continuance and settlement of loans and discounts made by the plaintiff to the Climax Mower and Reaper Company, for which Andrews was an accommodation endorser, upon the notes and renewals given from time to time by said company, beginning on the 9th day of May 1871, and ending December 20th 1872 ; that during said time lawful interest in Pennsylvania was 6 per cent.; that the plaintiff took, renewed, charged and received upon and out of the said loans and discounts a rate of interest at 10 and 12 per centum, as specified in a schedule, amounting in the aggregate to $1475.02, and has by law forfeited such sum to said Andrews, who has a legal set-off to that amount.
    “ On all the loans and discounts Andrews was an accommodation endorser. He borrowed no money, paid no interest, and has no right of action on account of illegal interest paid by the company. The affidavit and schedule show that the company at divers times borrowed a large amount of money from the plaintiff, all of which has been paid except $1824.37, the amount of the note in suit, after deducting $1100, — which sum grew out of Garfield’s business. By some arrangement this comparatively small sum then still owing by the company, was included in Andrews’s note endorsed by Bly. The affidavit avers that the company paid the interest. Not half the interest was paid within the last two years, the time limited within which to commence an action to recover it back. The 30th section of the National Bank Act provides that when illegal interest is knowingly reserved or charged, or agreed to be paid, it shall be held and adjudged a forfeiture of the entire interest which the note or evidence of debt carries with it. When it has been paid, the person paying the same, or his legal representative, may recover back, in action of debt, twice the amount of the interest thus paid, from the association taking or receiving the same.
    “ The right of action for the' usurious interest paid is in the Climax Mower and Reaper Company. That company may yet bring suit, if they have not settled the claim. Nothing appears to show' why any portion of the interest should be set off in favor of Andrews, except by a liberal construction of the affidavit, the sum of $82.42 be defalked as forfeiture, by reason of its having been charged at the rate of 10 per centum on the note in suit.
    “ The affidavit shows that Andrews became indebted to the, plaintiff on endorsements for Garfield, and for the Climax Mower and Reaper Company, and settled the same by giving his note, endorsed by Bly, at four months, to the plaintiff. Eor the reasons given, I am of the opinion it fails to disclose a good defence.”
    The court made the following order:—
    “And now, July 3d 1874, upon the plaintiff giving credit for $82.42, the amount of interest alleged to have been, charged on the note, rule made absolute as to balance of claim.”
    The defendant took a writ of error, and assigned errors as follows :—
    1. Refusing to deduct from plaintiffs’ claim the sum of $1148.53, being that part of the note which Andrews assumed by reason of his accommodation endorsements for Garfield, to W'hom plaintiffs’ loan was illegal.
    2. Refusing to deduct from plaintiffs’ claim the sum of $1475.02, being the amount of all the interest reserved and charged by the plaintiff in the whole series of discounts, as shown by the schedule attached to the affidavit of defence, the same being in every instance illegal and forfeit.
    3. Granting judgment in favor of the plaintiff, the affidavit containing a full and complete defence to the whole claim.

      G-uthrie Byles, for plaintiff in error.
    The loan being prohibited was void, and the illegality could not be waived: Maybin v. Coulon, 4 Yeates 24; Bartlett v. Vinor, Carthew 252; Cope v. Rowlands, 2 M. & W. 149; Fowler v. Scully, 22 P. F. Smith 456; Coppell v. Hall, 7 Wallace 558; Bank of Pennsylvania’s Estate, 10 P. F. Smith 471; Holt v. Green, 23 Id. 198; Mitchell v. Smith, 4 Dallas 269 ; Freeman v. Smith, 6 Casey 264; Fisher v. Bridges, 3 El. & B. 642. A subsequent contract which carries into effect an illegal contract, is itself illegal: Adams v. Rowan, 3 Sm. & M. 624; Coulter v. Robertson, 14 Id. 18; Smith v. Barstow, 2 Doug. 155; Gray v. Hook, 4 Comstock 449. If one part of a contract be void the whole is void: Crawford v. Morrell, 8 Johns. 253 ; Saratoga Bank v. King, 44 New York 87 ; Filson v. Himes, 5 Barr 452. The whole amount of interest was illegal. Under the Act of Congress of June 3d 1864, the taking of usurious interest by a national bank works a forfeiture of the whole interest: Lucas v. Government National Bank, 28 P. F. Smith 228 ; Brown v. Second National Bank of Erie, 22 Id. 209.

      B. Sherman, and M. C. Beebe, for defendant in error.
    The inducements to Andrews to assume this debt do not appear in the affidavit: Swan v. Scott, 11 S. & R. 155. If an act in violation of law has been committed, a subsequent agreement entered into, which, though founded upon it, constituted no part of the original inducement, is valid: Thomas v. Brady, 10 Barr 164; 2 Kent’s Comm. 597, 601; Armstrong v. Toler, 11 Wheaton 258; Broom’s Maxins 547. As to the usury : Brown v. Second National Bank of Erie, supra ; First National Bank of Mt. Joy v. Gish, 22 P. F. Smith 13.
   Judgment was entered in the Supreme Court November 26th 1875,

Per Curiam.

The able opinion of the learned president of the' court below upon the motion for judgment for want of a sufficient affidavit of defence, renders any discussion by us unnecessary. We affirm this judgment on that opinion. It may be added that as to the point of the illegality of the loan on the ground that the-bank had violated its charter by loans to Garfield of more than ten per cent, of its entire capital, the recent case of O’Hare v. The Second National Bank — not yet reported — but which will be in 27 P. F. Smith 96, fully sustains the judgment below.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Monroe versus Smith.
    - I. A deed void as to existing creditors by reason of the grantor’s fraud is not necessarily void as to subsequent creditors; it is bdd only as to those whom it is intended to defraud.
    2. A fraudulent intent may be construed to extend to future creditors, e. g. -where the grantor had entered into hazardous business, or was about to do so, involving the capital or labor of others.
    3. If the subsequent creditor had notice of the conveyance at the time his debt was contracted, there could be no fraud as to him.
    4. Snyder v. Christ, 3 Wright 499, followed.
    November 22d 1875.
    Before Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    . Error to the Court of Common Pleas of Crawford county: Of October and November Term 1875.
    This was an ejectment, brought February 18th 1874, by William H. Monroe against Reuben Smith.
    The land in dispute originally belonged to Rufus Montgomery, who conveyed it to John H. Balcom on the 29th of June 1859. On the 15th of February 1861, Balcom conveyed to Joseph De Hart, for the purpose of conveying to Mary R. Balcom, the wife of John H. Balcom. De Hart made the conveyance of Mrs. Balcom on the same day. To April Term 1867 of the court below, the defendant obtained a judgment against Balcom for $1415 ; a fi. fa. on this judgment was issued to September term of the same year, and the land in dispute was levied on as Balcom’s property and sold to the defendant: the sheriff’s deed to him was acknowledged November 15th 1867. On the 9th of February 1868, Mrs. Balcom duly conveyed the land to the plaintiff. The plaintiff having gone into possession, the defendant in an ejectment to April Term 1868, recovered judgment against him and went into possession.
    The question in this case was whether the conveyance by Balcom to his wife through De Hart was fraudulent as against Balcom’s creditors.
    The ease was tried May 4th 1874, before Lowrie, P. J. In addition to the foregoing facts, there was evidence that Balcom, at the time of the conveyance to his wife, owed a considerable amount of debts, but that they had all been paid before the defendant obtained his judgment against Balcom ; that Balcom had made frequent declarations to the effect that he had made the conveyance to his wife “ to get clear of his creditors; his wife to deed it back when he was out of trouble; he was harassed by his creditors.” There was evidence also that his wife had received money from her father and grandmother, which had gone into the purchase of the land, &c.
    The plaintiff’s third point, which was refused, was :—
    “ If the defendant had notice of the conveyance at the time his debt was contracted, or might have had such notice by ordinary diligence, there can be no fraud as to him, and the plaintiff is entitled to recover.”
    The defendant’s fourth point, which was affirmed, was:—
    “If the jury believe that the deeds from Balcom to De Hart, and from De Hart to Mrs. Balcom were made with the intent on the part of Balcom and his wife to delay, hinder, or prevent the then existing creditors of Balcom in the collection of their debts, the deeds were nullities and gave her no title as against then existing or subsequent creditors, and their verdict should be for the defendant, and this is so even if the jury should further believe that a part or the whole of the original purchase-money was paid by money received by Mrs. Balcom from her father.”
    The verdict was for the defendant.
    The plaintiff took a writ of error, and amongst other errors, assigned the answers to the foregoing points.

      Compton $ McKay and Douglass $ McCoy, for plaintiffs in error.
    Since the Act of 11th April .1848, the receipt of the wife’s money by the husband is presumed to be a receipt of it for her use; and makes him her trustee: Johnston v. Johnston, 7 Casey 450; Bergey’s Appeal, 10 P. F. Smith 408.
    There can be no legal fraud except as to existing creditors at the time of the conveyance, and such subsequent creditors as seem to be contemplated by the party making the conveyance at the time of making it: Bump on Fraudulent Conveyances 321-323; Shontz v. Brown, 3 Casey 123; Reid v. Gray, 1 Wright 508; Ridgeway v. Underwood, Wash. C. C. Rep. 129; Byrod’s Appeal, 7 Casey 241; Snyder v. Christ, 3 Wright 499 ; Chambers v. Spencer, 5 Watts 404; Foster v. Walton, Id. 378 ; Mateer v. Hissim, 3 Penna. R. 160; Greenfield’s Estate, 2 Harris 489 ; Mullen v. Wilson, 8 Wright 413; Williams v. Davis, 19 P. F. Smith 21. The husband may convey the land which he bought with the wife’s money in satisfaction of the debt he owes her: Mann’s Appeal, 14 Wright 375; Hinney v. Phillips, Id. 382; Mellinger v. Bausman, 9 Id. 522; Gicker v. Martin, 14 Id. 138; Grabill v. Moyer, 9 Id. 530; Miller’s Appeal, 15 P. F. Smith 101. -The general rule in regard to voluntary conveyances is that they are void only so far as may be necessary to satisfy prior creditors, and if they are paid the conveyance will stand: Freeman v. Burnham, 3 Conn. 469; Curtis v. Price, 12 Vesey 89; Pell v. Treadwell, 5 Wendell 661; Wilbur v. Fradenburg, 52 Barb. 474; Converse v. Hartley, 31 Conn. 372.

      J. B. Brawley, for defendant in error.
    In all cases where such intent can be shown,' the conveyance would be void whether the grantor was indebted or not: Salmon v. Bennett, 1 Conn. 525; Wadsworth v. Havens, 3 Wend. 411; Parkman v. Welsh, 19 Pick. 221; Sexton v. Wheaton, 8 Wheat. 229; Benton v. Jones, 8 Conn. 190; Howe v. Ward, 4 Greenleaf 195; Jacoby’s Appeal, 17 P. F. Smith 434.
   Mr. Justice Gordon

delivered the opinion of the court, January 6th 1876.

The affirmance, by the court below, of the defendant’s fourth point, without qualification, was erroneous. It does not follow that because a deed is voidable as to existing creditors, by reason of the grantor’s fraud, it is therefore voidable as to subsequent creditors ; for it is bad only as to those whom it is intended to defraud : Byrod’s Appeal, 7 Casey 241. It is true there are cases where the fraudulent intent may be construed to extend to future creditors, as where the grantor, at the time of the execution of the deed, has entered into, or is about to enter into some hazardous business, which necessarily does or will involve the capital, credit or labor of others. Under ordinary circumstances, however, such a presumption cannot arise: Snyder v. Christ, 3 Wright 499.

Let it be conceded that, at the time Balcom executed the deed to his wife, through De Hart, his design was to cheat, or at least, to delay his then existing creditors ; as the fraud urns intended to affect them, they might have avoided that deed, but as they did not do so, and as their debts have since been paid, it is certain that by no species of subrogation now known to the law, could their rights in the premises be transferred to their successors.

The case above referred to, Snyder v. Christ, is our warrant for saying that so much of the plaintiff’s third point as requests the court to charge, “ that if the defendant had notice of the conveyance at the time his debt was contracted there can be no fraud as to him,” should have been affirmed.

It is difficult to perceive how one who had knowledge of such a conveyance before he dealt with the grantor, and hence must have acted in view of it, could, by any possibility, be defrauded thereby.

Eor these reasons the judgment is reversed and a venire facias de novo awarded.


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    Prescott versus Otterstatter et al.

    1. A lease of an hotel stipulated that the landlord would raise the house, add a new story, and make other alterations; the tenant alleging that the alterations had been negligently done, so that his furniture had been injured and he had lost the use of rooms in different stories, &e., refused to pay the rent on the ground that he suffered greater damage than its amount. The landlord distrained. In replevin, Held the evidence by the tenant of the rental value per day of the rooms of which he was deprived was inadmissible, because the offer was too vague, as not designating the story.
    2. If the evidence referred to the new story it was incompetent; the measure of damages being the difference between the value of the premises on being taken by the tenant and their value had the improvements been made.
    3. Evidence having been admitted for the landlord of the rental value of the bar-room, separate from the rest of the house, evidence that the tenant had engaged permanent boarders for the rooms in the new story was improperly rejected in rebuttal; but in each instance the evidence was incompetent.
    4. If the contract had been substantially complied with by the landlord, with such defects only as could be compensated by damages, the damages were to be assessed for the loss sustained during the period for which the rent was claimed.
    5. In fixing value of property and damages for breach of contracts the injury is to be ascertained by general evidence of the value and estimate of the damages.
    6. The court below having treated an objection to evidence as having been made in a proper time, and given the party an exception; that the evidence was not objected to till after it was given is not a ground of complaint in the Supreme Court.
    7. The rule as to the measure of damages stated in Schuylkill Nav. Co. v. Thoburn, 7 S. &'R. 411, is always followed and enforced in Pennsvlvania.
    November 22d 1875.
    Before Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Writs of error to the Court of Common Pleas of Crawford

      county: Of October and November Term 1874, No. 160,161,162, 163, 164.
    These were five several actions of replevin, brought to August and-November Terms 1873, and to January Term 1874, of the court below, by Charles A. Prescott against Conrad Otterstatter, and others.
    The declaration in each case was in the usual form for the taking and detaining of a large quantity of chattels, the property of the plaintiff, in the National Hotel in Meadville.
    The defendant made cognisance and avowed the taking of the goods in the National Hotel, Meadville, of which the plaintiff was' in possession under a lease from the defendant, Otterstatter, at the yearly rent of $1600, payable in monthly payments of $133.33 each, and that one month’s rent being due and in arrear, the defendant distrained the goods for such rent, &c.
    The plaintiff, by his plea, averred that by the lease it was agreed, that the lessor would erect an additional story to the building with rooms, &c.; would remove the old porches and replace them with halls, &c., and that the defendant, although requested, did not make the above-mentioned additions and alterations, and that the plaintiff suffered damage thereby to the amount of $2000; that the damages exceeded the whole amount of rent due, &c., and out of these damages he was willing to allow the lessor, defendant, to defalk the rent really due ; that the lessor removed the roof in so careless a manner and left the premises unroofed for so long a time, that the plaintiff was deprived of the use of the premises for three months; that by reason of the negligent conduct of the lessor, rain, brick, mortar, &c., came upon plaintiff’s furniture, which was thereby rendered valueless and destroyed, by which the plaintiff was damaged to the amount of $2000, and he averred that by reason of these acts the lessor entered upon plaintiff’s possession and evicted him therefrom for the space of three months.
    The several cases were tried together, April 22d 1874, before Lowrie, P. J.
    . The defendant gave in evidence, the lease dated March 31st 1873, of the National Hotel, for a year from the 1st of April 1873, with the covenants for alteration, &c., as set out in the plaintiff’s plea; the building to be occupied for ahotel and for no other purpose. The lease further provided that the lessor might take forcible possession of the premises if the rent was not paid when due.
    The plaintiff testified, that upon complaint to the lessor, he agreed to make the repairs immediately. About May 1st they commenced to patch up the old porches, put in new floors, &c.; the repairs were much delayed and done in a defective manner; the snow and rain came in, and made ice on the floor; the boards were upright and nailed to the old porch railing; the porch was the entrance to the four best rooms in the house on the second and third stories ; lessor took a portion of the roof off, and let the chimney down, doing considerable damage; plaintiff was deprived of three rooms wholly, and three partially, from the middle of May to the last of August; the work could have been done in three weeks; for three months plaintiff was deprived of eleven rooms; for all the year, of five rooms; the house was worth $5 per day less than if it had been repaired. He testified much in detail as to the damage suffered by him.
    The plaintiff offered to show the rental value per day of the rooms of which he was deprived, by the fault of the defendant. The defendant objected to the offer, it was rejected, and a bill of exceptions was sealed for the plaintiff.
    Many other witnesses testified much in the same manner as the plaintiff.
    The defendant gave evidence, in answer to plaintiff’s case, some of which tended to show that the plaintiff prevented the repairs from being done.
    The defendant offered to prove the rental value of the bar-room, with a license separate from the rest of the house. The. plaintiff objected; the evidence was admitted and a bill of exceptions sealed.
    A witness, who had conducted the National Hotel, testified that the bar would rent for three-fourths of the entire rent of the hotel; that the rooms on the fourth story were of small account.
    A number of other witnesses testified to about the same effect. They testified generally, also, that the proposed improvements would add very little to the rental value of the house.
    The defendant having rested, the plaintiff offered “to rebut the foregoing evidence by showing that he had engaged permanent boarders for the five rooms on the fourth story as soon as they should be finished.”
    This was objected to by the defendant, rejected by the court, and a bill of exceptions sealed.
    The plaintiff’s second point and its answer were :—
    As the consideration of the lease given in evidence in this case is single, the contract is entire; that part of the covenants of defendant, Otterstatter, is to erect a fourth story over the building leased, with rooms, and to take down the old porches, and convert them into proper hall-ways ; and if said defendant has refused or neglected to perform these covenants, he cannot recover any rent.
    Answer. “ There are no circumstances given in evidence in this case that would justify us in affirming-the above point.”
    The verdict was for the defendant in each of the cases.
    The plaintiff sued out writs of error in all of them.
    He assigned for error : — •
    1. The answer to his point.
    2. The injection of his first offer of evidence.

      3. The admission of defendant’s,offer of evidence.
    4. The rejection of plaintiff’s last offer of evidence.

      J. B. Brawley (with whom was J. O. Marey), for plaintiff in error.
    As the defendant had failed to perform a part of the contract he could not recover anything for a part performance : Shaw v. Turnpike Company, 2 Penna. R. 454; Harris v. Ligget, 1 W. & S. 301; Martin v. Schoenberger, 8 Id. 367; McClurg v. Price, 9 P. F. Smith 420. Where parties have made a contract which one of them has broken, the damages should' be such as may fairly and reasonably be considered either arising naturally, according to the usual course of things from such breach of the contract itself, or such a may reasonably be supposed to have been in the contemplation of both parties at the time they made it, as the probable result of the breach of it: Hadley v. Baxendale, 26 Eng. L. & Eq. 398 ; Fleming v. Beck, 12 Wright 309 ; Wolf v. Studebaker, 15 P. F. Smith 463; Adams Ex. Co. v. Egbert, 12 Casey 360 ; Addison on Contracts 874; Mechelen v. Wallace, 7 Ad. & E. 54.

      J. W. Smith, P. Ohurch and W. R. Bole, for defendants in error.
    Where a covenant goes only to part of the consideration on both sides, and a breach may be compensated by damages, it is an independent covenant and action may be maintained without averring performance: Obermeyer v. Nichols, 6 Binney 159; Warren v. Caulk, 3 Whart. 193; Parsons on Contracts 453. Failure of a landlord to fulfil his agreement to keep the premises in repair is no defence to an action for rent: Taylor’s Landlord and Tenant (note) 531; Muffot v. Smith, 4 New Jersey 126 ; Tibbets v. Percy, 24 Barb. 39; Watts v. Coffin, 11 Johns. 495; Osborn v. Ethridge, 13 West. 338. Set-off cannot be pleaded in an action of replevin : Anderson v. Reynolds, 14 S. & R. 439; Beyer v. Fenstermacher, 2 Whart. 96 ; Peterson v. Haight, 3 Id. 150 ; Fairman v. Fluck, 5 Watts 516; Thoburn v. Sch. Nav. Co., 7 S. & R. 411; Gilbert on Rents 145; Clun’s Case, 10 Rep. 128 ; Edwards v. Heatherington, 7 D. & R. 117; Collins v. Barrow, 1 Moody & Rob. 110.
   Mr. Justice Woodward

delivered the opinion of the court, January 6th 1876.

The answer of the court below to the plaintiff’s second point was a statement in effect that no proof had been given to show a breach by the defendant of his covenant to improve the premises demised by the lease of the 3Íst of March 1873. The bill of exceptions has dwarfed the proportions of these cases into an outline so meagre as to make a resort to the general evidence indispensable to an intelligent view of the questions raised and tried. It appears from this evidence that the defendant undertoook to make the improvements which the terms of the lease required. It was alleged as ground of defence, and several witnesses testified, that the additional story stipulated for was added to the hotel building, operations having been commenced in May 1873, and continued at least until some time in June. It was claimed that the carpenter and mason work had been completed, and that the roof had been tinned as promptly as possible. The five rooms into which the additional story was divided had not been finished, but there was evidence that the plaintiff had interfered to prevent access to them by the workmen. It would seem, therefore, that the question presented to the jury was one of perfect or defective execution of a contract, and not one of its performance or non-performance. The general charge is not in the record. All that is properly here for review is the request of the plaintiff for instructions .that if the plaintiff had refused or neglected- to perform his covenants he could not recover rent, and the answer of the court that there were no circumstances given in evidence to justify an affirmance of the point. Upon the real issue tried, it is to be assumed that the cases were properly submitted. The principles of law which control the rights and duties of parties to contracts where questions of perfect, substantial, defective or deficient performance arise, or where performance by one party is prevented by the fault of the other, are well settled by a class of authorities to which Harris v. Liggett, 1 W. & S. 301; Martin v. Schoenberger, 8 Id. 367; Bryant v. Stilwell, 12 Harris 314; Snodgrass v. Gavit, 4 Casey 221; and Miller v. Phillips, 7 Id. 218, belong. In the absence of complaint on this subject, it can only be taken for granted that these principles were justly applied. Defined within this limit as the issue apparently was, there was no room for, the application to it of the principles decided in McClurg v. Price, 9 P. F. Smith 420, where there had been no pretence of the performance of bis covenants by the lessor; and the effect of that decision on Obermeveru. Nichols, 6 Binney 159, and Fairman v. Fluck, 5 Watts 516, it is not now requisite to consider.

The second error is assigned to the rejection of the offer of the plaintiff to prove the daily rental value of the rooms of which he was deprived by the fault of the defendant. This offer was too vague. It may have had reference to the rooms in the fourth story which the plaintiff had covenanted to build. In that case it was incompetent, for it would have introduced into the trial an element too partial and inadequate to meet the exigencies of the issue. In every case of this kind, the proper measure of damages is the difference between the value of the premises in the state in which the tenant takes them, and their value with the covenanted improve-merits made. But evidence had been given to show that the plaintiff had been deprived of the use of rooms in the lower part of the house in consequence of the falling of a chimney, alleged to have been caused by the defendant’s workmen. Proof of the fact of the accident was apparently admitted without objection. Whether defence to the extent of the injury caused by it could be set up in these actions of replevin, need not be now discussed. The offer was ambiguous, for it could refer ■ to either of two sets of rooms. Even if it referred to the lower rooms, it presented the defence in an objectionable form. For both reasons it was properly excluded.

The third and fourth assignments may be considered together. On the trial, the court admitted, under exception, evidence on the part of the defendant of the rental value of the bar-room, with a license, separate from the. rest of the house. To rebut that evidence the pláintiff offered to show that be had engaged permanent boarders for the five rooms on the fourth story as soon as they should be finished, and this offer the court rejected. If evidence of the rental value of the bar-room was rightly received, the principle is not apparent that would warrant the rejection of evidence of the rental value of the rooms in the fourth story. But in each instance the evidence was incompetent. If the contract between the parties had been complied with substantially by the defendant, and such defects of performance only had been shown as could be compensated by damages to be found by a jury, those damages were to be assessed in each of these suits for the respective period for which the rent in each was claimed to the extent of the loss to which, for that period, the plaintiff was subjected. Proof of the rental value of the bar could not elucidate the issue, for to that source of profit the lease had given the plaintiff an unquestioned right. And even if it had been relevant, it violated the rule for the ascertainment of damages in cases of this kind. It was an item of detail selected from the body of the property, and the effect of the proof was to afford the jury the means of making a fresh contract between the parties in lieu of that which they had made for themselves. In fixing values of property, and in ascertaining damages for breaches of contracts like this, the extent of the injury suffered is to be established by general evidence of such values and a general estimate of such damages. The rule of this court, stated in The Schuylkill Navigation Company v. Thoburn, 7 S. & R. 411, has been uniformly followed and enforced. Fairman v. Fluck, supra, was an action of replevin for goods distrained for rent. The lessor had covenanted to improve the yard of the tavern leased, and had failed to do so. Tn the opinion of. the court, Sergeant, J., stated the measure of damages to be the difference between the amount the property would have rented for with the improvements made, and the amount it would rent for without them. The judge added : “ Not only are remote or speculative damages, such as the profits the lessee might possibly have made, to be rejected, but even the proof of a direct loss of business, by showing that a customer went away in consequence of the condition of the yard.” Evidence of merely illustrative individual acts to settle a question of value or a question of damages would be equally inconvenient and unsafe. The value of a tract of land could not be fixed by proof of the price paid for a similar tract, and the rental value of a single room in a hotel could not be fixed by proof of the rent a particular lessee may have offered for it. One party may have been governed by considerations of convenience or necessity, and the other may have acted on some peculiar personal motive, founded on sentiment, caprice or whim. And as the particular circumstances of each transaction would be open to inquiry, litigation under a rule recognising the competency of such evidence, would be most unprofitably and almost indefinitely prolonged. The plaintiff’s offer could not properly have been admitted except as rebutting testimony, and these causes must go back for re-trial in consequence of the reception of the evidence to which the third assignment of error relates, and which it was the object of the rebutting evidence to meet. In reply to the suggestion of the defendant’s counsel that the evidence complained of in the third error was objected to after it was given by the witness, it is enough to say that the court below treated the objection as having been made in proper time, and recognised the right of the plaintiff to an exception.

Judgments reversed, and venire facias de novo awarded in each case.


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    Roberts et al. versus Riddle.
    1. A guaranty of the payment of a written obligation “ according to its terms,” is broken by non-payment when the time of payment arrives, and the guarantor is liable without pursuing the debtor to insolvency.
    2. Campbell v. Baker, 10 Wright 243, followed.
    November 22d 1875.
    Before Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1874, No. 158.
    This was an action of assumpsit, brought February 14th 1874, by William Riddle against W. B. Roberts, J. W. Humphreys and W. H. Abbott. The cause of action was a guaranty of bond issued by the city of Titusville. The bond and guarantee (which was endorsed on it) were as follows:—
    1,1 It is hereby certified that the city of Titusville is indebted unto William Riddle in the sum of $10,000, redeemable .at the pleasure of the city of Titusville after the 24th day of April 1872, and payable on the 23d day of June 1872, with interest at the rate of eight per cent, per annum. * * * This debt is., authorized by the Act of Assembly of the state of Pennsylvania, approved the 8th day of March, A. D. 1872.”
    “ For value received, we, the undersigned, guaranty the payment of the within bond according to its terms. April 24th 1872.” The guaranty was signed by the three defendants.
    The affidavit of defence, filed March 18th 1874, was :—
    “ W. B. Roberts and W. II. Abbott, being duly sworn according to law, depose and say that they are two of the defendants in this case, and that they, together with their co-defendant, have a full, just, and, as they are informed by counsel, a legal defence to the whole of the plaintiff’s claim, the nature and character of which is as follows : That the defendants were simply guarantors for the payment of the bonds of the city of Titusville, upon which suit is brought, and not liable until after the said plaintiff, by due diligence in effort to collect said claim from the said city of Titus-ville, has failed by reason of the insolvency of said city ; that the plaintiff has not made proper efforts to collect said bonds'from the city of Titusville, the obligor, which said city has abundant assets, property and facilities for paying or,causing said bonds to be paid.” On the 21st of May 1874, the court entered judgment for the plaintiff for want of a sufficient affidavit of defence ; the damages were liquidated at $12,584.54.
    The defendants took a writ of error and assigned for error, entering judgment for want of an affidavit of defence.

      Douglass S; MOoy, for plaintiffs in error.
    A guarantor is liable only if the creditor uses diligence in pursuing the debtor : 3 Kent’s Com. 221; Johnston v. Chapman, 3 Penna. Rep. 18; Rudy v. Wolf, 16 S. & R. 79 ; Gilbert v. Kenck, 6 Casey 205; Hoffman v. Bechtel, 2 P. F. Smith 190 ; James v. Scott, 9 Id. 178; Brown v. Brooks, 1 Casey 210 ; Woods v. Sherman, 21 P. F. Smith 100.

      J. B. Brawley, for defendant in error.
    A guaranty of contract implies a concurrent act of the original agreement, and when made at the same time becomes the essential ground of credit given to the principal debtor ; the consideration extends to the promise of the principal debtor and also of the guarantor : Snevily v. Johnston, 1 W. & S. 309 ; Amsbaugh v. Gearhart, 1 Jones 482. The guaranty being for the performance of the original contract according to its terms, the guarantor was liable without pursuing the debtor to insolvency: Campbell v. Baker, 10 Wright 245. Such contract is in nature of suretyship : Shannon v. Roberts, 1 Grant 261; Ashton v. Bayard, 21 P. F. Smith 134.
   Judgment was entered in the Supreme Court, November 26th 1875,

Per Curiam.

The terms of the written contract upon which the plaintiffs in error were sued in the court Relow were that they guaranteed the payment of the bond upon which it was endorsed “ according to its terms.” These terms were that it was payable at a certain day, June 23d 1872. The engagement was then to guarantee the payment of the bond “ when due.” It was determined by this court in Campbell v. Baker, 10 Wright 243, that a guaranty of the payment of a note “ when due ” is broken by nonpayment at maturity ; and the guarantor is then liable upon his contract to the creditor, who is not bound either to pursue the principal or to show his insolvency. Other cases might be cited sustaining the same principle. The affidavit of defence was therefore clearly insufficient.

Judgment affirmed..