author: Oxbson, C. J.

text:
    COMMISSIONERS OF YORK COUNTY against JA COBS.
    IN ERROR.
    Where a defendant indicted for a misdemeanor, is acquitted by the petit jury and the jury does not determine, whether the county, the 'prosecutor, or the defendant shall pay the costs of prosecution, as they are required to do by the act of the 8th of December, 1804, the costs are not to be paid by the county.
    Error to tbe court of Common Pleas of York County, where it was a case stated in tbe nature of a special verdict, in which Jacob Jacobs the defendant, was plaintiff, and the plaintiffs in error, defendants. The facts agreed on were that one George-Bitner, at January sessions, 1832, was indicted in the court of quarter sessions of York county, for selling unwholsome provisions, and acquitted by the petit jury, who did not determine whether the county, the prosecutor or defendant should pay the costs of prosecution, their verdict being silent on that subject. The plaintiff was entitled to costs .in the case, and the question submitted was, whether the county was liable to pay the costs of prosecution. The court of Common Pleas gave judgment for the plaintiff to which the defendants brought this writ of error.

      It. J. Fisher for the plaintiffs in error,
    referred to the act of 1791, 3 Smith, 44, 281. 4 Smith, 205. 2 Strange, 1105, 3 Burr. 12S7. ilgncw v. The Commissioners, 12 Serg. liaiole, 94. Irwin v. The Commissioners, 1 Serg. fy Iiawle, 505. The Commonwealth v. The Commissioners of Philadelphia, 4 Serg. $• Pawle, 541.

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

Oxbson, C. J.

The rule of the common law which exacted the costs of prosecution from a prisoner though acquitted, was felt to be a grievance and thought worthy of redress. Accordingly the thirteenth section of the act of the 23d of September, 1791, providod that “where any person shall be brought before a court, justice of the peace, or other magistrate of any city or county in this commonwealth, having jurisdiction in the case, on the charge of being a run*away servant or slave, or of having committed a crime, and such charge, on examination, shall appear unfounded, no costs shall be paid by such innocent person, but the same shall be chargeable to, and paid out of, the county stock by such city or county. ” This section has no connection with the point before us; and if is barely proper to remark, that it seems to have been the foundation of a practice to charge the county on the termination of a prosecution by nolle prosequi, which in turn, was probably the cause of the restriction since put on the power of the attorney general. But it was further enacted by the eleventh section of the same act, “that the costs accruing on all bills returned ignoramus by the grand jury of the city or any county in this commonwealth, shall he paid out of the county stock by the city or county in which the prosecution commenced, and not by the party charged before such grand jury with any felony, breach of the peace, or other indictable offeirce.” And on the 20th of March, 1797, it was still further enacted “that all costs accruing on all bills of indictment found by the grand jury of the city, or any county in this commonwealth, charging a party with any felony, breach of the peace, or other indictable offence, shall, if such party be acquitted by the petit jury on the traverse of the same, be paid out of the county stock by the city or county in which the prosecution commenced.” By these three provisions the common law principle was nearly if not entirely changed; and the question is, whether, as regards misdemeanors, the two last have not, in turn, been entirely superceded by the act of the 8th of December, 1804. The opinion of the: court below, seems to have been founded on an expression qf the Chief Justice, in The Commonwealth v. The Commissioners of Philadelphia county, by which it is said the main object of this last act, was to exempt the county where the grand or petit jury should order the defendant or the prosecutor to pay costs; and hence it was thought tobe intimated, that the preceding provisions Were intended to be abolished only in the cases specified, all others remaining to be determined by the rule to which they were beforesubject. The opinion of the Chief Justice, however, is to be understood as being expressed in reference to the particular case before the court, and without a view to its bearing on a case like the present. As the act of 1804, provided a remedy not only inconsistent with the preceding ones, but when adequately administered, fully commensurate to Ihe original mischief, it has consequently left nothing for the preceding remedies to operate upon; and this would seem to bzpro tanto & virtual ¡repeal of them. The natural presumption being that the courts and juries would do their duty, the legislature had no reason to think the obvious and effectual provisions of the new remedy, would be overlooked, or fail to be applied, without which, a case like the present could not have happened and therefore an intent to reserve the old remedies for cases not otherwise provided for, is not to be presumed inasmuch as the existence of any such, could not have been anticipated. In the preamble which is sometimes a key to- the intent, the mischief to be remedied, is far from being supposed to exist, but in specific cases. “Experience has proved,” say the legislature, “that the laws obligingthe respective counties to pay the costs of prosecution in all criminal cases where the accused is acquitted, have a tendency to promote litigation,” &c. What is thought to be the natural and appropriate remedy? In all cases of acquittal by the petit jury,” it was enacted, “on indictments for the offences aforesaid (misdemeanors) the jury trying the same, shall determine by their verdict, whether the county, or the prosecutor, or the defendant shall pay the costs of prosecution.” The mischief then was in the generality of the principle of liability, and the remedy provided for it was not in declaring specific exceptions, but in an entire change of it by charging the county only where special circumstances should, in the opinion of the jury, render such a charge just and necessary. Without then determining from whom these costs are demandable, or whether they are demandable at all, it is sufficient for the present to say they are not to be paid by the county.

Judgment of the court below reversed, and judgment here for the defendant.


source: Caselaw Access Project

author: Gibson C. J.

license: Public Domain

text:
    DUNCAN against REIFF.
    IN ERROR.
    Whatever may have been the effect of á judicial sale on other interests, both the policy and the practice of the legislature have been to hold the lien of a mortgage, to the state undischarged by any thing but actual payment into the treasury; and such mortgage is not divested by a judicial sale, on any other lien of the land mortgaged, nor is it to be paid out of the purchase money raised by such sale.
    Error to. the District Court of York county.
    This was- a case stated in nature of a special verdict,by which the only question presented was whether a judicial sale of land, mortgaged to the commonwealth, for the purchase money, made upon another lien, divested the mortgage, and was entitled to be paid out of the proceeds of such sale.

      Evans for the plaintiff in error.

      Lewis, contra.

   The opinion of the court was delivered by

Gibson C. J.

The practice of the state has ever been to retain an indissoluble lien on the land itself, without regard to the manner in which the debt to be secured was created. This was distinctly manifested in the loan office Act, passed the twenty-sixth of February, seventeen hundred and eighty-three, on the special provisions of which was decided, Febeger’s lessee, v. Craighead, 2 Yates, 42, whose principles were lately scanned with care in the case of The Corporation for the relief of Presbyterian Clergymen v. Wallace, in which the decision went no further, however, than to determine the effect of a judicial sale on the lien of a mortgage whose properties were not regulated by statute. Neither the Acts of the fourth of April, eighteen hundred and five, and the twenty-first of February, eighteen hundred and ten, in accordance with which the mortgage before us was given, nor that of the first of March, eighteen hundred and eleven, to encourage the patenting lands, north and west of the Allegheny river and Conewango creek, expressly or by necessary implication define the qualities of a mortgage for purchase money, further than the intent of the legislature in that respect, may be supposed to have been guided by the policy uniformly evinced in similar cases, of which, however, the legislation that grew out of the dispute between this state and Connecticut, affords a happy illustration. In the compromising Act, passed the fourth of April, seventeen hundred and ninety-nine, patents were ordered to be issued to Connecticut settlers, on security being given by mortgage for the purchase money, but without expressly defining the force and durability of its lien. But the preeise intent of the legislature on this-subject, was explained by a suppletory Act, passed the fourth of April, eighteen hundred and five, in which the patents were directed to be issued to Connecticut settlers, who might “desire such lands to remain as a security for the payment of the purchase money” without being willing to incur the expense of a mortgage, the Surveyor General certifying on the bach of the patents, the amount and the periods when payable; “which sums” it was enacted, “shall remain a lien on the land in the nature of a mortgage, until the money shall have been paid.” Here then is a legislative exposition of the nature of a mortgage to the state. In fact the state has seldom accepted of any other security than the land itself. In a very few instances both bonds and mortgages have been required; as by the Act of the sixteenth of September, seventeen hundred and eighty-five, for the price of lands purchased before the tenth of December, seventeen hundred and seventy-six, and also by the Act of the thirtieth ofMarch, eighteen hundred and twenty-two, which directed sale to be made of the lands ceded by Dickenson College. In the case of the lands oí John Nicholson, sold on the lien of the Commonwealth, for defaults by him in the ¡office of Comptroller General, the sale was on terms which required the purchaser to give bond without a mortgage; but.the land was expressly charged with its price in the hands of the purchaser, and this affords another proof of the uninterrupted course of the policy of which I have spoken. In the case of the estates forfeited aud directed to be sold by the Act of attainder, passed the sixth ofMarch -seventeen hundred and seventy-eight, and of the depreciation lands sold at the Philadelphia coffee-house, under the Act.of the twelfth of March seventeen hundred and eighty-three, for the redemption of the certificates issued to the officers and soldiers of the Pennsylvania line, the title was withheld till the purchase money was paid. All these examples shew that although there have been a feyv instances of superadded personal liability, the state has always looked to the land as debtor. Nor has it ever confided the receipt or custody of itsmonys to any but its particular "officers or agents. Here, if the lien were divested, the public interest would be put to thé hazard of the sheriff’s insolvency, which sometimes occasions loss even to individuals notwithstanding extreme diligence by the losers. The Commonwealth necessarily performs its operations by the instrumentality of agents, and consequently with less vigilance than is infused by self-interest into the operations of an individual; and it is for that reason instead of any approximation of its attributes and prerogatives to those of royalty, that the maxim of nullum iempus is held applicable to it: so that the same consideration would seem to entitle it to a more indulgent construction in other matters, than could be claimed by an individual. Whatever, therefore may have, begn the effect of a judicial sale on .other interests? both the policy and the practice of the legislature have been to hold the lien of a mortgage to the state, undischarged by any thing but actual payment into the treasury; consequently, the mortgage to the govern- or, mentioned in the case stated, is not to be paid out of the proceeds of the sale.

Judgment affirmed,


author: Kennedy, J.

text:
    SPANGLER against HUMMER.
    IN ERROR.
    Where hpon the facts, as given in evidence, the plaintiffs might recover, it is error in the court to charge the jury; “If the law is as laid down by the court, the plain tiff lias failed in making- out his case, and is not entitled to recover.’.’
    'Error to the District Court of York county.
    It was an action of replevin by Rudolph Spangler, against John Hummer, brought to recover grain, which the plaintiff claimed as the tenant of one Herbach, and which the defendant had taken from the ground where it had been raised by the plaintiff.
    It was proved that the grain in dispute Was grown on one hundred and thirty acres of land, of which, in eighteen hundred and sixteen, John Ziegler, died seised. On the first of January, eighteen hundred and sixteen, an order issued to Ziegler’s administrators, to sell this land: it was sold to John Hummer; one third of the purchase money to remain a lien upon the land, the interest to be paid to the widow, who was afterwards the wife of Peter Hcerdorf. Hummer sold to Hoffman,under whom Herbach came into possession about the year eighteen hundred and twenty-two.

      Peter Heerdorf and. loife brought an action of debt, in the District Court, on the lien, for the interest due the Widow of Zeigler against John Hummer, with notice to Jacob Herbach, terre-tenunt, and obtained judgment thereon. On this judgment the land was sold, on the twelfth of May,eighteen hundred and twenty-eight, to Peter Heerdorf, subject to the widow’s dower. On the sixth of January, eighteen hundred and twenty-nine, Peter Heerdorf articled to convey to John Hummer, and on the twenty-fourth of May, eighteen hundred and thirty, did convey the land to him.
    The plaintiff Spangler, proved, that Jacob Herbach remained in possession of this land. That during the Summer and Fall of eighteen hundred and twenty-nine, John Hummer, was frequently at Jacob Herbach’s house, eat, and spent evenings there; that Her

      bach, being destitute of horses, &c. in the fall of eighteen hundred and twenty-nine, prevailed on Spangler, the plaintiff, to put out, and seed one of the fields in wheat and rye. Spangler was to haul out the manure, find the seed, put out the grain, and crop it, for which he was to have one half the crop. The plaintiff complied with this agreement, and put out the crop. Spangler and Hummer both lived in the neighborhood, and were acquainted. The field put out joined the public road. While Spangler was putting-out the crop, with his own horses, Hummer rode by. One of the witnesses stated that Hummer had an opportunity of knowing Spangler’s horses. The field was three hundred yards from Herbach’s house. The plaintiff Spangler, proved by Peter Smyser, that Smyser told Hummer, in the fall of eighteen hundred and twenty-nine, that Spangler was hauling manure, and seeding one of the fields of Herbach. Hummer replied “it was better to have something than nothing.” The plaintiff proved that, in eighteen hundred and twenty-nine, Hummer' had issued a venditioni ex ponas, on a judgment which he had against one Hoffman, a form^ er owner of the land, and had the same land struck off to him at sheriff’s sale. That Herbach had filed exceptions to the sale, and that, in the fall of eighteen hundred and twenty-nine, it was agreed between the counsel of Hiommer and Herbach, in Hummer’s presence, that if Herbach would withdraw his objections to the sale, he should remain in possession of the land until the first of April, eighteen hundred and thirty. He did withdraw these exceptions, and the deed was acknowledged.
    In the summer qf eighteen hundred and thirty,.Hummer carried away the whole crop put out by Spangler, and this action of replevin was brought to recover one half of the'crop.
    • The court charged the jury — “The plaintiff has put his claim to, the grain, on two grounds: He contends, first, that Spangler- had put it in as tenant to Herbach, on the shares,and was entitled tó eiu ter, cut, and carry away his share, when it was ripe. On this we remark that Herbach had no legal right to lease the land to Spangler, nor could he, as landlord, convejr any right to Spangler, to enter, in the succeeding summer, and take away the produce, the seed of which he sowed in the fall of eighteen hundred and twenty-nine.

      2. The plaintiff contends that Hummer knew of an agreement between Herbach and Spangler, that the latter should put out the crop in eighteen hundred and twenty-nine, and have half the produce, that Hummer saw Spangler ploughing the land, and ryas told by Smyser that Spangler was hauling manure into this held, and Hummer replied “it was better to have something than nothing;”' and there being no evidence that Spangler was warned to desist, it is contrary to equity, that Spangler should be deprived of his grain.

      ' “On this the court observe, if the evidence was that .this agreeincnt was known to Hummer, and he, assented to it, or in any respect encouraged Spangler to plough, and sow this field, Hummer would be bound bjr it, and would be entitled to no more of the grain than the landlord’s share, and Spangler would be entitled to. recover his pert'on according to the agreement, the knowledge of Which was brought home to Hummer. But is there any evidence that Hummer knew any thing of such agreement. The court have scon none. There is evidence of the conversations with Smy ser, and that Hummer several times rode by the land when Spangler was engaged in the field, and that Hummer was often at Herbach’$ house, and on friendly terms with him.”

      “If then the law is as laid down by (he court, the plaintiff has failed in making out his case and is not entitled to recover.”

    A.verdict was given for the defendant and error was assigned; In the court charging the jury that the plaintiff had failed in making out his case, and was not entiled to recover, and that it was necessary to prove the knowledge and assent qf Hummer to'the agreement with Herbach.”

    The cahse was argued by

      Gardner and Lewis for the plaintiff in error.

      Evans and Durhie contra.
   The opinion of the court was delivered by

Kennedy, J.

The District Court in its charge to the jury, in this case, after noticing the grounds upon which the plaintiff’s counsel had contended for a recovery, and recapitulating some parts of the testimony, as well as suggesting the want of it to sustain the plaintiff’s claim, concluded by telling the jury that, “if then the law is as laid down b.y the court, the plaintiff has failed in making out his case and is not entitled to recover. ” This is complained of here as error, and it does appear to me too, not without reason. For it would rather seem from this part of the charge that if ai\y thing was submitted by the court to the jury, to be decided by them, it was the law, which the court itself ought to have decided; and that the facts of the case, which it was the peculiar province of the jury to have decided, without the controlling direction, of the court, were withdrawn from them.

It was the duty of the court to lay down the law to the jury, and although the court said “if the law is as laid down by the court,” thus seeming to imply a. doubt, whether it was so or not, the jury Were bound to receive the law from the court, and to'consider it as Correctly laid down, and we must presume that the jury did so. This form of submitting the law to the jury, where the court had laid it down correctly in their charge, would-not, therefore, I apprehend, be a sufficient ground for reversal. But here, the court Went further and told the jury that “the plaintiff has failed in making out his ease, and is not entitled to recover.” “Now this,” (as was said by this court in Jones v. Wildes, 8 Serg. & Rawle, 150,) “was a positive direction to find in a particular way at all events,and necessarily left nothing to the jury,” and therefore the judgment of the court below, was reversed.

If, however, as was’said in the case of Weidler v. The Farmer’s Bank of Lancaster, 11 Serg. & Rawle, 141, the state of the evidence and the facts in the cause had been such, that taking all to be true, the plaintiff would not have been entitled in law to recover, the judge of the District Court might have said as he did; because, then, the only question raised would have been one of law, which properly belonged to the court to determine.

But it appears, that among other things, parol evidence was given on the trial, of Herbach’s having made and filed objections to the sheriff’s Sale, under which the defendant claimed the land upon which the grain in dispute was grown; that Herbach was the tenant in possession of the land, at the time, and that under him Spangler, the plaintiff, had sown the land Upon the shares, and was to have one third of the grain, which was the part in dispute; that the defendant was told that the plaintiff was seeding the land at the time it was doing, and that afterwards the defendant agreed with Herbach,ihz.t if he would withdraw his objections to the sale, that he should continue in the possession of the land until the first of April following the sowing of the grain, and that Herbach acceded to this, and withdrew his' objections, upon which the sale was confirmed to Hummer, the defendant: and even previous to all this, some evidence was given of Hummer’s having been originally the owner of the land, that he sold it to Hoffman, and that Herbach came into the possession of it under Hoffman, and thus indirectly under Hummer himself. This evidence in some degree,to say the least of it, tended to prove that Herback, under whom the plaintiff cropped the land, and by his agreement was to have the grain in dispute, held the land quasi tenant to Hummer, the defendant, or by and with his consent, and that Herbaph was to have the way going crop, and the plaintiff, of course, his right, as a cropper, and it ought, therefore, to have been submitted to-Ahe jury, for their consideration, whether the facts seem so or not.

The judgment of the District Court is reversed and a venire de novo awarded.


author: Gibson, C..J.

text:
    MILLER against HOWRY and another, Administrators of HOWRY.
    IN ERROR.
    An execution, issued upon an absolute judgment, taken to indemnify the plaintiff, asdic surety of the defendant, for a debt which is not paid by the surety, at the lime execution is issued, is neither erroneous, nor irregular,* nor is it fraudulent , by tlie statute of the 13th Elizabeth, in consequence of having so issued before tne actual payment of the debt, for which it was given as an indemnity. It is a measure to secure him by means intended to produce payment of the debt out of the cilccls of the principal by whom it is due.
    Error to the district court of Lancaster county. This was an amicable action on the case, in which Henry Howry and David Book, administrators of John Howry, deceased, the defendants in error, were plaintiffs, and David Miller, the plaintiff in tuTor, was defendant, and in which, the following case, stated In nature of a speeial Verdict, was agreed by the parties:

      John Dowry, the intestate of the plaintiffs, Abraham Doner, Samuel Herr, Abraham Melz'ler, Samuel Howry, and Peter Espenshade, severally obtained judgments in -the court of Common Pleas of Lancaster county, on their several bonds, dated the 6th day of August, 1825, against Daniel Howry for the several and respective sums of money stated in the said bonds, which judgments were entered up in the said' court on the said 6th day of Aug. to the term of April, A. D. 1825, and on the 9th day of Aug. 1825, writs of fieri facias issued upon the said several judgments against the said Daniel Howry; for the debt, interest, and costs of the said several judgments returnable to August term, 1825, which were put into the hands of the sheriff, and levied on the personal property of Daniel Howry, the defendant on the same day, to wit: the 9th day of August, 1825; that the property thus levied upon, was sold by-the sheriff on the 14th of September, 1825, andón the 20th day of September, Í825, the sheriff, in pursuance of rules taIcen by the said plaintiffs, in the several suits, upon him, paid into court a sum of money, arising from the sale of the personal property of Daniel Howry, sufficient to pay the debts, or a large portion thereof due to the said several plaintiffs, by virtue of their several judgments. That David Miller, the defendant, on the 1st day of April, 1825, entered up ajudgment against Daniel Howry, in the Common Pleas of Lancaster county, to January term, 1825, on a bond dated the 30th December, 1824, in the penalty of thirty-six thousand dollars, conditioned to pay on the 1st of April, 1825, two thousand dollars, and so on annually, the sum of .tvyp thousand dollars until tfye sum of eighteen thousapdi dollars be paid; that on the 13th day of Augdst, 1S25, a ft. fa-issued on this judgment, to August term, 1825, which was putinto the sheriff’s hands on the .same day; to which ft, fa,. the sheriff returned levied on real estate, inquisition held and property condemned, and also levied on personal property of the defendant, subject to prior levy. That’to November, Term, 1825, a writ of venditioni exponas issued, under this judgment, to which the sheriff returned, stayed by motion made in court, and therefore unsold for want of buyers. An alias venditioni then issued upon the said judgment, on the 29th of January, v 1830, to April term, 1830, which was returned, the real estate of defendant, sold at and for the sum of fifteen thousand and fifty-one dollar's to David Miller, who retains the same money bv virtue of his judgment, it being the oldest judgment entered to January term, 1825, for the real debt of eighteen thousand dollars, with interest from the 30th of Dec. 1824, except the sum of one hundred and thirty-onedollars the amount of the costs. Thatneither David Miller nor any person for him ever received from the defendant, or any other person, any other or further sum of money on account of or in discharge of the said judgment, butthe sum of fifteen thousand and fifty one dollars obtained so as aforesaid. That in September, 1822, Daniel Howry gave his four several bonds to George Diffenbach, each for the sum of one thousand and eighty dollars, payable on the 1st of April, 1824, 1825, 1826 and 1827, with interest. For the security of the payment of the money, due by these bonds to George Diffenbach, John Howry, the intestate of the plaintiff entered into the said bonds and became bound in the same as the security of the said Daniel Howry. That on the 23d day of April 1825, Daniel Hoiory and John Hoiory, the surety of the said Daniel, gave their bond to Joseph Potts, for the penal sum of one thousand dollars,' conditioned to pay to the said Joseph Potts, the sum of five hundred dollars, on the 1st day of April, 1826, with interest, that in March, 1825, John Howry loaned to Daniel Hoiory the sum of two hundred and fifty-eight dollars. That the said judgmeut so entered up in the court of Common Pleas, on the 6th day of August, 1825, to April term, 1825, by the said John Howry, against the said Daniel Howry, in the penal sum of eight thousand dollars conditioned to pay four, thousand dollars with interest, was given by the said Daniel, to the said John Howry, to secure the payment of the said sum of two hundred and fifty eight dollars and to indemnify the said John Howry, against the payment of the said several sums of money with interest for the payment of which he was so, as aforesaid, bound, to the said George Diffenbach, and the said Joseph Potts. That on the 6th August, 182S, when the said bond and judgment were given by the said Daniel to the said John Howry, the said several sums of money, nor any part thereof, had not been paid by the said John Howry, to the said George Diffenbach and the said Joseph Potts; but since the said judgment of the 6th of August, 1825, was given by the said Daniel to thesaid John Howry, to indemnify the said John, as aforesaid, he the said John has been compelled to pay, and did'pay to the said Joseph Pot ts on the 7th day of April, 182 6, the sum of seven hundred and fifty seven dollars, fourteen cents, the amount of the principal and interest due on said bond given by Daniel and John Howry to Joseph Potts; and the said John Howry has also been compelled to pay, and did pay to the said George Diffenbach on the 8th day of April, 1830, the amount of the debt due by the said bonds given as aforesaid by the said Daniel and the said John Howry, his surety to the said Geo. Diffenbach, together with the interest and the costs of suit brought by thesaid George Diffenbach against the said John Howry as the surety of thesaid Daniel, for the recovery of the money due to George Diffenbach in and by the said bonds. That no part of the said moneys so due to the said Joseph Potts and George Diffenbach was ever paid by the said Daniel Howry, that the said Daniel Howry on the 13th 'August, 1835, made a general assignment, of all his estate to Robert J. Potts and Isaac Lawrence for the payment of his debts, and soon after died, utterly insolvent, without ever refunding to John Howry any part of the money so paid by the said John Howry for the use of the said Daniel to Joseph Potts and George Diffenbach.

    On the judgment of Abraham Doner, v. D. Howry, of April, 1825, the fi-fa. issued 9th August, 1825,
    On thejudgment of Samuel Ilerr v. Same of April 1825, the fi. fa. issued 9th August, 1825.
    On the judgment of John Howry, v. Same of April, 1825, the fi-fa. issued 9th August, 1825
    On the judgment of Samuel Howry v. Same of April,-1825, the fi. fa. issued 9th August, 1825
    On the 29th of August, 1S25, on motion of Mr. Porter, on behalf of David Miller’s assignees, and affidavit filed, the court granted a rule to shew cause why the above four fi. fas. should not be^set aside, and also why the judgment should not be set aside or opened; and David Miller, and the other creditors of the defendant let into a defence.
    On 20thMarch, 1827, the rule was made absolute, the judgments and executions to remain as security until a final'decision of the question.
    If upon the above statement of facts, the court should be of opinion that the plaintiffs Henry Howry and David Book, the administrators of John Howry, deceased, are entitled by virtue of the fi. fa. of the said John Howry, to August term 1825, to the money now in court, or that David Miller the defendant had no right to interfere with, or impeach the validity of the said fi. fa. then in either case, judgment to be entered in favor of the plaintiff. But if of a contrary opinion, then judgment Lo be entered in favor of the defendant.
    The court gave judgment for the plaintiffs, which the defendant removed by writ of error to this court where he filed the following error:
    The district court erred in entering judgment for plaintiffs below, on the case stated, and should have entered the same for the defendants below,* JoAn Howry the plaintiff’s intestate, not having paid the original debts on the 9th of August, 1825, the day of issuing the execution, and not till a long time afterwards, viz: a part on the 7th April 1826, and part on the 8th April, 1830, his execution is irregular, and void, and the execution of defendant below, issued 13th August, 1825, is entitled to a preference.

      Ellmnker, for the plaintiff in error.
    Two questions are presented by the case for consideration.
    1. Can an obligee on such a bond of Indemnity as that upon which judgment was entered for John Howry, before the payment of the debt against a liability for which it was given as an indemnity, take out execution?
    2. Can such execution be controverted by a subsequent judgment or execution creditor, who is not a party to such judgment of indemnity?
    1. A surety in a bond, &c. cannot sue until he has paid (he debt. Powelv. Smith, 8 John. Rep. 192. Wharton D. 576,, p. 18. The object of giving a surety a judgment bond, is lo give him a lien on the land of the principal debtor, and dispense with mesne process; in case he is compelled to pay the debt ol' the principal. It was never intended to permit the surety to issue an execution at once.
    He referred to the mode of proceeding on bonds with a collateral condition, &c. under the statute of 8 & 9 Wil. 3. Rob. Dig. 142. 1 Tidd. 511. Where a judgment is entered onsuch bond, and the condition appears of record, the plaintiff-must issue a scire facias, and assign breaches. Where the condition does not appear of record, but is evidenced de hors and in pais the plaintiff should moye the court for leave to take out execution. If he issued execution at once, he did it at his peril; and he contended it may be set aside, either at the instance of the defendant; or of any other person who, has an interest in setting it aside, when it is erroneous.
    This was analogous to the practice in Pennsylvania in case of shewing cause of bail, according to v/hich, no previous order for the writ Í3 required. That issues at the peril of the plaintiff, and will only be set aside, in case he can not, when called on, show cause of bail. Beyond this no case has gone. If such execution is held to be good, although the plaintiff has not paid the debt for which his judgment is an indemnity, great injustice- may be done; for he may sell-the property of the defendant and bring the money into court, and let itlie there to his utter ruin, and the great injury of his creditors, and yet he may never pay the debt, Or it may be paid to the plaintiff by the sheriff, when the plaintiff may never become entitled to it. Workman v. Cunningham, 1 Peters’s Rep. 243. Com. D. tit. execution, C. 7.
    A debtor may transfer his property for the use of his creditors, and give a preference to some of them; but in such case, creditors who arc not provided for by the assignment, as well as those who are, have a remedy against the assignees, and can compel them to account for, and appropriate the fund. But here if the plaintiff is permitted to appropriate the funds of the defendant, before damnification, who can call him to account? He is irresponsible, the intention of the parties is violated, and a fraud, a legal fraud is allowed to be perpetrated upon creditors; which he contended the statute against frauds and purjuries would not permit. Roberts’ P. 302. This statute applies to judgments, and executions, and is to be construed liberallyu
    2. He took a distinction between erroneous process, which is good until reversed, and can be set aside at the instance of the defendants only, and irregularand void process which he alleged could be set aside by one who had an interest in avoiding it. Philips v. Pirón, 3 Wilson’s Rep. 345. Jlllison v. Ream, 3 Serg'. 8,' Rawle, 139. Hoyl v. Wildfire, 3 John Rep. 518. 2 JBac. Jib. 739, 740, 741.

      Montgomery, Champneys and Norris, for the defendants in error.
    The question raised is to operate on sureties, who are the favourites of the law, whose only safety was in their levy on personal property; for the real estate of the debtor was covered with judgments, which exceeded its value, sureties, who, although they had not paid the debt before they issued execution, had paid it before they sold the property levied on.
    They conceded that a surety at large, who has no express engagement from his principal, cannot sue his principal, until he has paid the debt; when the law implies for him a contract on the part of the principal to repay him. In that case the payment is the essential basis of the implied assumpsit, and the suit cannot of course be brought until that occurs. But the right of the surety, is co-extensive with his contract, with his principal, with which third persons have nothing to do. Here the judgment is absolute on its face, and is the express contract of the parties, looking to all the security which the nature of the judgment will afford. The surety goes on the express agreement, and where there is such express agreement, as soon as the surety becomes lia-ble he may sue.
    If a bond of indemnity be given to an endorser of a note which is protested, and he is sued upon the note he may sue the bond as soon as the note is protested, and upon judgment have execution, before he has paid the note; so where a judgment bond wap given conditioned for the payment of certain notes which were endorsed by the obligee he was permitted to enter judgment, and haye execution, although he had not paid these notes; and it was held that the court would apply the money to pay the creditors to whom the surety was bound, Murray v. Grays’ a dm. 3 Bin. 136. Ramsay v. Gervais, 2 Bay. Rep. 145. Monell v. Smith, 5 Cowen, 441. Rosewelt v. Mack, 6 John. Report. 26,6, 279, 289. Bank of JLuhurn v. Throop. 18 John. Rep. 505. 2 7\ Rep. 100, 1 Atkins, 115, 116. Norton v. Whiting, l Page Rep. 57S, Gardner v. Grove, 10 Serg. 8¡- Rawle, 137. The assurance by which a debtor is permitted to give a preference to a creditor is the same, whether it be by judgment without stay of execution, or by deed of assignment, which it is conceded does not come in conflict with the statute of frauds.
    Non-payment of money at the day is a forfeiture of a counter-bond. Ross’ Executory. Rittenhouse, 1 Lewies, 443. Here the bond is an absolute bond, it is an express contract between the parties and there is no fraud, in the inception, and no fraud in the objects of the contract. The statute of Elizabeth, commonly called the statute of frauds and perjuries, does not apply to this case, Miller v. Race, 1 Bur. 452 The United States v. Ilooe at al. 3 Cranch Rep. 73.

    If the process of the court is abused most certainly the court will interfere, the proper remedy is an application to the court, and it is not necessary for the plaintiff to apply before issuing execution for permission to take it out. Frasier v. Frasier, 9 John. Rep. 8. Baily v. Waggoner, 17 Serg. 8? Rawle, 327. Lewis, v. Smith, 2 Serg. 4" Rawle, 142. 18 John. Rep. 142.
    2. They contended that the execution was not void, but if errone-. ous at all, it was only voidable at the instance of the defendant, who alone could take advantage of the error. Stewart v. Stocker, 13 Serg. and Rawle, 199. Camming v. Hackley, 8 John. Rep. 306. 3 Lev. 403. 3 Cain’s Rep. 271 273. Renolds v. Scott¡ 1 Salk. 273. 2 Salk. 674. 3 Wilson’s Rep. 345 Jackson v. Sellick, 8 John. 262. 1 Cowen’s Rep. 734. Jackson, v. Relancy, 13 John. Rep. 537. Howland v. Ralph, 3 John. Rep.. 20. 1 Chit. Plead. 183, 184, 185.
   The opinion of the court was delivered by

Gibson, C..J.

'The execution having been in due ti,mc, and; founded on an actual judgment, was neither erroneous nor irregular; and the question therefore is whether it were fraudulent by the dial. 13 Eliz. in consequence of having issued before actual payment of the debt for which the counter bond was given as an indemnity. The chief obstacle to a satisfactory conclusion, is a tendency in the mind to view the case as it stood originally, and to consider the question of indebtedness, as still depending on the naked relation of principal and surety. Undoubtedly a surety though presently liable to an action, or even an execution, may no,t main-lain indebitatus assumpsit, before actual payment, because the implied promise which is the foundation of that action, arises out of the fact of payment and nothing else. It is implied from the consideration of money paid, laid out, and expended to the defendant’s use. But the strictness of the rule by which the fact of payment is determinable, has been relaxed where a negotiable note, or bill of exchange was given, and received in satisfaction, which, it has been held, will support a count for money paid. Morrison v. Becky, 7 Serg. & Rawle, 246, Cumming v. Hackley, 8 Johns. 206. Where, however, the surety holds a counter bond, in the very sum for which his responsibility stands pledged, his right of action depends on considerations entirely different. Being founded on the undoubted consideration of his individual liability, such a bond is far from" being a gift of the money. In Rosewelt v. Mack, 6 Johns. Ch. 281, it was treated as a debt provable under a commission qf bankruptcy; and that decision made, as it was, in reference to a process of distribution among creditors, which has been aptly called a statutory execution, goes the length of the present question. The same thing was predicated in Toussaint v. Martinnant, 2 T. R. 100. Martin v. Court, Id. 640, and Hodgson v. Bell, 7 T. R. 97, which certainly would not have been done had the bond been deemed fraudulent. In fact the question of fraud was expressly made and decided, Mr. Justice Buller, declaring in Toussaint v. Martinnant, that there was a sufficient consideration, though the counter bond was payable before theoriginal bond became due; in which respect that case was much stronger than the present. .Here the transaction was an arrangement by which the surety having become paymaster, was to raise the funds from the effects of the principal, by the instrumentality of an execution; and it is admitted, that.the object might have be'en accomplished by an assignment to the surety, who would then have been accountable as a trustee, but who, it is supposed, might, consistently with the actual arrangement, retain what should be recovered, as his proper money, and leave the original debt to fall on the remaining property of the principal. Such was not the notion entertained in Rosewelt v. Mack, and Toussaint v. Martinnant; where it was considered that equity would compel him to refund; and though we have not the direct powers of a court of chancery, wo would find means to produce the same effect. If, then, there was a sufficient consideration for a present debt, what right have the other creditors to interfere? In settling the construction of the statutes of Elizabeth, the judges undoubtedly set out with a determination to cutup voluntary gifts and conveyances by the roots; yet, as has been justly remarked by a respectable writer, they showed an inclination to restrict the import of the word voluntary to cases, where no inducement of interest appeared, and to extend the notion of a valuable consideration to every case which admitted of a supposition that one act was made the condition of another. Roberts on Fraud. Conv. 15. It is said by the same writer, that an assignment to a stranger is not to be supported under these statutes, the mere destination of the property to the payment of debts,affording no consideration,because passing nothing from the assignee to the assignor, which can prejudice theformer or benefit the latter; but that where a creditor is a party to the assignment, a valuable consideration is found in the forbearance of suit, or mutual accommodation, which is expressly stipulated, or implied from the very nature of the transation. Id. 429, 431, 432. This would bring the question back to the point from which it started — was the surety a creditor, and was there a mutual accommodation of the parties? Undoubtedly there was a contingent liability of the principal to the surety, which in transactions of the sort, is invariably the subject of special protection, a provision for indorsers, who have not paid the debt, being an article of almost every assignment. Then, of the existence of mutual accommodation, there can be as little doubt. As has justly been remarked by Mr. Justice Butter, the surety is always the effective and responsible man, having been taken because the credit of the principal was doubted, and an arrangement like the present, is a measure to secure him by means intended to produce payment of the debt, out of the effects of the principal by whom it is due, and to satisfy a responsibility which is invariably incurred under a promise of payment or indemnity. It would seem, therefore, that the surety is entitled to the amount of his bond.

Judgment affirmed.


author: Gibson, C. J.

text:
    DUNCAN against ALT and wife.
    in error.
    Testator devised a tract of land to liis son, charged with the payment of twenty-two hundred pounds, he to pay seventeen hundred pounds of that sum, to himself the testator, to his wife, and to his children “he had with his first wife,” “in manner as shall hereafter be said.” fifty pounds to the testator on the first of April, eighteen hundred and sixteen, twenty-five pounds on the first of April, eighteen hundred and seventeen, “and then so on until after my decease.” He directs that his son should pay the residue of the seventeen hundred pounds, which should remain after his decease, thirty pounds to his wife, and one hundred and twenty pounds to his children by his first wife, of whom there were ten, on the first day of April, in each year after his death, “till the seventeen- hundred pounds is fully paid.” He then added, “for the five hundred pounds after the seventeen hundred pounds are paid, if my said wife is then alive, and my wido w, my said son shall pay yearly the interest of the five hundred pounds to my said wife.” He directed that his son should pay the interest on the five hundred pounds, until after the decease . or marriage of his wife, (“after the seventeen hundred pounds is paid as aforesaid.”) lie directed that after the death or marriage of his wife, his son should pay the five hundred pounds, to his children by his second wife, in three annual payments, and added, (“But this I mention the five hundred pounds shall not be paid, nor no interest thereon until after the, seventeen hundred pounds is paid.”) The testator directed that his personal estate should be sold, and he bequeathed one third, after paying his debts, to his wife, and two thirds to his children, by his first wife. He also devised to his wife a life estate in sixteen acres of land. After the death of the testator, the land devised to the son was sold at sheriff’s sale, on a judgment in favour of one of the legatees, for twenty-one hundred dollars, a sum less than sufficient to pay all the legacies. Held: that all the legacies, those to the children of the first, and those to the children of the second marriage,abated in proportion. The direction for priority of payment, is insufficient to raise a presumption, that a preference was intended in point of right.
    A pecuniary legacy may be exempt from abatement, as in the case of a wife or child destitute of other provision, or of a legacy given in lieu of a dower, or of a preference manifestly intended. But these cases are exceptions to the general rule, that equality is the highest equity, dependent on peculiar circumstances, and attended with strong expressions of intention.
    Error to the Court of Common Pleas of Yorle county.
    This was a case stated in nature of a special verdict, in which the following facts were agreed on:

      Andrew Lau made, and published his will and died. In that will, which is dated on the twenty-first of March, eighteen hundred and sixteen, and was admitted to probate, on the twenty-fifth of February, eighteen hundred and twenty-two, he directs his personal estate to be sold, and after paying his debts, bequeaths one third to his wife; and two thirds to be equally divided amongst his children, “he had with his first wife,” ten in number, naming them, of whom Elizabeth, the plaintiff, is one. The testator then goes on and devises as follows:
    “I give and bequeath unto my eldest son, Michael, my dwelling plantation, to his heirs and assigns for ever, that is, one hundred and'fifty acres, and allowance I allow to him, and the overplus thereof, I keep for myself, on the south side; for which one hundred and fifty acres, he my said son Michael shall pajr, and give out the full sum of twenty-two hundred pounds lawful money, that is to say, my son Michael shall pay seventeen hundred pounds of the aforesaid sum to me, and to my wife, and to my said children, in manner as shall hereafter bo said. Fifty pounds he is to pay to me, on the first of April, eighteen hundred and sixteen, then on the first of April, eighteen hundred and seventeen, twenty-five pounds' again, and then so on until after my decease. On the first day of April, after my decease, my son shall pay one hundred and fifty pounds in such manner: thirty pounds to my wife, and the one hundred pounds is to be divided to and amongst my ten children by my first wife, in equal shares, to them in the meaning aforesaid: and then so on, yearly on evéry year, oh the first day of April, thirty pounds to my said wife, if she remains my widow, and one hundred and twenty pounds to my children, in manner aforesaid, till the seventeen hundred pounds is fully paid. But in case my wife should die else marry before the Said seventeen hundred pounds shall be paid, if she marries again, she shall have the thirty pounds no more, after her marriage or death the yearly payments of one hundred and fifty pounds is to he divided to and amongst my said children in the meaning aforesaid: now I order for the five hundred pounds, after the seventeen hundred pounds is paid, if my said wife is then alive, and my widow, my said son Michael shall pay yearly the interest of the five hundred pounds to my said wife. The said five hundred pounds shall lay on the land to my son so long as my wife shall not marry or else die. After her decease, my said son shall pay on the interest of the said five hundred pounds until after her death or marriage as aforesaid, (after the seventeen hundred pounds is paid as aforesaid.) Then after her marriage or decease, my son Michael shall pay the said sum of five hundred dolpounds,to my other children whichl have by present wife Magdalena, in mannér as shall hereafter be said, in three equal shares or payments; the first payment on the first of April, after her decease, and so on yearly, until the five hundred pounds is fully paid to my children, which I have by my second wife Magdalena. (But this I mention, the five hundred pounds shall not be paid, nor no interest thereon, until after the said seventeen hundred pounds is paid.) The said five hundred pounds is to be divided in equal shares alike to and amongst my other children, which I had by my second wife.”
    By a codicil to the above will, dated the seventeenth of November, eighteen hundred and twenty-one, the testator bequeathed another plantation, containing sixteen acres, to his wife Magdalena, during her life, or so long as she remained his widow, c'and after her death, or marriage, the same to be sold, and the proceeds of sale, to be equally divided amongst all” his “children.” And he also devised to his son Michael, in fee, “the overplus of the plantation, willed to him as above, lying on the south side of the one hundred and fifty acres.”
    In the District Court of York county, the defendants in error, Philip Alt and Elizabeth his wife, who were plaintiffs below, brought an action of debt for the purpose of recovering the proportion of Elizabeth his wife, the testator’s daughter, by his first wife, in the sum charged on the one hundred and fifty acres of land devised to Michael, against the executors of Andrew Lau, with notice to the ierre tenant. Judgment was rendered in this action, on the fourteenth of April, eighteen hundred and thirty-one, and under it a levy was made ofthq land devised to Michael, which was sold by Andrew Duncan, Escp sheriff of York county, for two thousand one hundred dollars; against whom as defendant this amicable action was entered. And the questions submitted were:
    1. Is the seventeen hundred pounds to be paid out of the proceeds of sale, in preference to the five hundred pounds in the will mentioned? If so judgment for the plaintiff for two hundred and forty dollars.”
    2. “Are the seventeen hundred pounds, and the five hundred pounds, to be paid out of the proceeds of sale, pro rata? If so judgment for the plaintiff for two hundred dollars.
    The court of Common Pleas gave judgment for the plaintiffs, for two hundred and forty dollars, and Duncan, the defendant brought the case by writ of errpr to this court.
    The cause was argued .by

      Gardner for the plaintiff in error.
    He refered to Witman v. Norton, 6 Bin. 395. Nichols v. Postletluoaite, 2 Dali. 131. Tucker v. Hessenclever, etal., 3 Yea tes, 294. Barnet v. Washebaugh, 16 Serg. <§- Eaiole, 413. Oily v. Shuey’s executors, 1 Rdwle 294. Burridge v. Bradyl, 1 Peer. Wil. 127. McLanahan v. McLanahan, 2 Penns. Rep. 281.

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

Gibson, C. J.

A pecuniary legacy, may undoubedly be exempt from abatement, as in the case of a wife or child destitute of other provision, or of a legacy given in lieu of a dower, or of a preference manifestly intended. But these cases are few in number, dependent on peculiar circumstances, and attended with strong expressions of intention. They are, in fact, exceptions to the general rule that equality is the highest equity, which aChancellor is eager to enforce,wherever it is not controlled by countervailingequities, or by an intent too manifest to be disregarded. The interest of the widow,which is frequently an obstacle to the enforcement of it, is,not involved here. Ample provision was made for her, by the bequest of a third of the personal estate, a devise of land for life, or during widowhood, and an annuity charged on the fund in question, which could not. however be affected by contribution among the children, the inquiry being not whether the annuity shall abate with the rest, but whether the other legacies shall bo brought into average. Putting her interest out of view, then, what is there peculiar in the case? Both the land and the person of the devisee, are charged with the twenty-two hundred pounds, which is directed to be paid out. Out of what? Undoubtedly theland devised to the son, who is thus made a purchaser of the shares of the other children. By a codicil made a few years afterwards, the testator gave to the devisee, over again, the residue after deducting that sum, which is entirely indicative of an intent, that till satisfaction made, the shares of all the children should remain in the land. But the five hundred pounds, part of the gross sum, are expressly charged; and if the seventeen hundred pounds are not charged likewise, the consequence to the children of the first wife must be postponement instead of preference. Now having charged the land and the person of the devisee too, it is unreasonable to suppose the testator ever anticipated, the unparalleled depreciation of real estate, that occurred in a few years from the date of his will, or dreamt that any part of these legacies would not be paid. Even so late as eighteen hundred and twenty-one, we find from the codicil already mentioned, that he supposed the land to be more than sufficient. There is nothing, then, to indicate an actual intent to prefer a particular class of them, except what is urged by the plaintiff as sufficient evidence of it, a direction that the five hundred pounds shall not be distributed among the children of the second wife, till the seventeen hundred pounds arepaid to the widow and the children ofthefirst. But though this direction is given with an appearance of emphasis, it could not, as already said, have been suggested by an apprehension of deficiency, nor consequently with a view to provide for such an event. A motive distinct from any presumption of an intended priority of right, may be found in the fact that the children of the first marriage, were more advanced in years and therefore more immediately in need of their patrimony to establish them in business or a profession. Nor is there any thing more solid in the exemption of the five hundred pounds from interest, before the expiration of the time limited for the preceding payments. An obvious reason for that is, the interest was intended to make up the widow’s annuity after the seventeen hundred pounds should be exhausted, before which, it would not be wanted. What weight then is due to the alted direction for priority of payment? In regard to that* the rule of the court is laid down by LordHardwicke, in clear and satisfactory terms. “It is said there are cases,” he remarked, “wherein the court has gone a great way, to level legatees, and make them abate in proportion, as in Brown v. Mien. I do not remember the state of that case, and there may lie a difference in the state of it; for if the testatorsay “imprimis,” or “in the first place I give such a legacy,” that amounts Only to the order in which he expresses his gifts in the will — to nothing more. But if he had said “to be paid in the first place,” audit had been in that case a provision eor a wipe, I should havedoubted of that determination, and should have been inclined to thinkitwas a declaration ofhis intent that the provision for his wife should come out of the personal estate, and be paid in the first place, because there is ground for that from the preference to a wife and children uNERoyiDED por. If indeed in that will, they all stood in equal degree, it was a sufficient groundfor the court not to presume a preference: but it was a provision for a wife or child unprovided, that is different.” Lewin v. Lewin, 2 Ves. 415. The case of Brown v. Allen which was the subject of these remarks, is reported in Vern. 31, but briefly and unsatisfactorily, Lord Nottingham being represented to have said in a few words, that “where a man devises several legacies, as one hundred pounds to one, and fifty to another, &c. there though he directs the legacy of one hundred pounds to be paid in the first place, yet if the other legacies fell short, the legatee of the One hundred pounds mustmáke a proportionate abatement of his legacy:” in other words that a naked direction of the sort gives priority of time, but not priority of right, as has since been determined in Blower v. Morret, 2 Ves. 429. Then to try the matter by the rule of Lord Hardwicke, as just stated, the interest of the widow being out of the case, and the children who claim a preference being provided for, while all stand in an equal degree of consanguinity to the testator, the direction for priorty of payment, is insufficient to raise a presumption that a preference was intended in point of right. The plaintiff and the other children of the first marriage have had a monopoly of the personal estate along with the widow; and if they' ate to come in for a preference, as regards this fund, the children of the second marriage will have been left absolutely destitute — a consequence which the testator could never have intended. Had they even Stood in equality of provision, the legacies must have abated in proportion; but as the inequality observable in the case, is prejudical to them in respect of the other parts of the estate, it strengthens their claim to an equality of participation jn this. They ought, therefore, to have been let in on equal terms.

Judgment reversed and judgment for the plaintiff for two hundred dollars.


author: Per Curiam.

text:
    KELLY against EVANS Administrator of WADSWORTH.
    in error.
    W. gave a note to the plaintiff, and defendant for services,, to be rendered; aftepwards W. and N. made an agreement with the defendant for a larger sum, tor the same services, and the defendant agreed to, keep W- pleat of liability, and costs on account of the note given to the plaintiff and defendant. The defendant received the sum stipulated on the agreement with W. and N. and the services were performed by the plaintiff and defendant. Held.- that the engagement of the defendant, to keep W. clear, was apromiseto satisfy the plaintiff, andmightbe enforced by the party beneficially interested; and the payment to the defendant is tobe considered, as regards the plaintiff, as having been paid on the note, so far as was necessary to discharge it.
    This was a. writ of error, to the judgment of the District Court of York county, in favor of the defendant upon the following case sta~. ted, in nature of a special verdict.
    On the first of August, eighteen hundred and twenty-four, Elizabeth Williams, gave a note to F. M. Wadsward and Thomas Kelly, for three hundred dollars, for services to be performed in defending an action of ejectment.
    On the twenty-eighth of August, eighteen, hupdred and twenty-six, Wadsworth made an agreement with E. Williams and one-John Neff, that in consideration that they would pay him four hundred dollars, he would defend the said action of ejectment, and keep .Elizabeth Williams clear of'liability, and costs an account of the n.ote given to Wadsioorth and Kelly,for three hundred dollars..
    Afterwards on the first day of February,, eighteen hundred, and thirty, Wadsworth ^received the said four bundr.ed dollars, on the agreement with Elizabeth Williams and John. Neff. Wadsioorth, rendered his services in defending the said aetion of ejectment. Thomas Kelly..tdso rendered his services in defending the. said' action of ejectment.
    The cause was argued for the plaintiff in error by

      Gardner,

    who cited Jllgeo v. Jllgeo, 10 Serg. 8?. Raiole, 235., Young v. Henderson’s Executor, 2 Yeates, 216. Bickman v. Irwin, 3 Yeates, 66. Eashoick v. Hugg, 1 Ball. 223. Ralston v. Bell’, 2 Ball. 242. Morrison v. Berkey, 7 Serg. fy Rawle,. 238. Kearney y. Tanner, 17 Serg. 8f Rawle, 94.
    And by Lewisiov- the defendant in error.
   Per Curiam.

The engagement of the defendant’s intestate to keep the drawer clear, was a promise to satisfy the plaintiff, because the engagement could be performed;in no other way; and such a promise may be enforced by the party beneficially interested. But the money was actually receiyed by the intestate, and consequently. in part to the plaintiff’s use. Nor is this consequence to be averted by the fact that the money was paid on a new contract. That contract was substituted without the concurrence of the plaintiff; and whatever might be the new relation created by it, between the immediate parties, yet as regards the plaintiff, and the intestate, the payment is to be considered as having been on the original note, at least so far as was necessary to discharge it.

Judgment below reversed, and judgment here for the plaintiff.


text:
    SECHRIST against CONNELLEE.
    IN ERROR.
    Á justice of the peace has no jurisdiction of a contract concerning the really, where the title to lands and tenements may come in question.
    Error to the district court of York county^, on a judgment upon a verdict in favour of the defendant in an action brought by Jacob Sechrist, the plaintiff in error, against James Connellee, the defendant in error.
    The suit was brought before a justice of the peace “in debt not exceeding one hundred dollars, balance of a sale of a lot of ground.” ■ The justice gave judgment in favour of the plaintiff for thirty dollars, the defendant appealed and the cause was transferred to the district court. The plaintiff claimed from the defendant the balance of the purchase money for a lot of ground, which he, by deed dated the 26th of May, 1830, conveyed to the defendant. Issue was joined on the defendant’s plea of payment, who at the trial produced the deed with a receipt in full of the purchase money subjoined.
    The plaintiff proved by the justice who took the acknowledgment of the deed that a part only of the purchase money was paid at the time of the acknowledgment; that when the deed was signed it was proposed that the plaintiff should take some memorandum of what was due, which he refused to do, saying that as the amount was to be paid in a few days it was not worth while. After verdict for the defendant, the plaintiff moved in arrest of judgment on the ground that the justice before whom the cause originated 3>ad no jurisdiction. The court overruled tile motion, and now the cause was argued here upon this point, and another which it is not material to state.

      Evans and Lewis for the plaintiffin error and

      R. J. Fisher, contra.

   Per Curiam.

The direction in regard to the merits seems to have been misconceived; but as there is another point in the cause which is decisive of it, a particular examination of any thing else is deemed unnecessary. By the Act of 1810, the ancient and exclusive jurisdiction of the Common Picas, seems to have been studiously preserved in actions “where the title to lands and tenements may come in question;” and undoubtedly want of title as importing want of consideration, may come in question in an action for the price of land. That the word ‘may’ was not intended to mean ‘shall,’ is evident from the want of provisions to transfer tbecause to the Common Pleas on the setting up of a defence which should involve a fact inconsistent with the justice’s jurisdiction; such for instance as is found in the act for regulating attachments before justices of the peace. But the point has, we believe, been already decided in a case not yet reported; and the law is considered as settled.

Judgment reversed.


text:
    EBERT and another Trustees of RUTTER against SPANGLER.
    IN ERROR.
    Trustees in a domestic attachment, issued by a Justice of the Peace, are entitled to * the residue of money in the sheriff’s hands, after satisfaction of an execution, on which the absconding debtor’s property was sold, attached on such a domestic attachment, and this, although such trustees did not show that they had advertised for the creditors to come in, &c.
    Error to the District Court of York county.
    The plaintiffs in error who were plaintiffs below, and trustees of Mam Rutter, under a domestic attachment, brought this suit against William Spangler, sheriff of York county, to recover a surplus, arising from the sale of the personal property of the said Rutter, after satisfying an execution in his hands, upon which he had sold the said property, and which property was attached in his hands, subject to such execution.
    On the 17th of September, 1828, the domestic attachment was issued by the justice, and on the same day the constable attached the property in the hands of the sheriff subject to an execution, and certain foreign attachment, made this return of his writ, and the plaintiffs were appointed trustees. On the 19th of September, the sheriff sold the property, and on the 6th of January, 1829, the Court of Common Pleas, in which the foreign attachment issued, quashed the said foreign attachments.
    The defendant had demurred to the evidence of the plaintiff, and the court below gave judgment upon this demurrer in favor of the defendant, in which error was assigned here.

      Evans and Burlete for the plaintiff in error;
    Contended that the attachment was well layed on the property in the custody of the sheriff, which was beyond the amount necessary to satisfy the execution in his hands, that the surplus was not in the custody of the law, but in his hands for the use of the debtor: and that it was not necessary that the trustees should advertise until it was ascer-: tained whether they could obtain any thing to distribute. They referred to 1 Leon. 69, 264. The act of the 2d of March, 1823, §3. The act of the 4th of December, 1807. The act of the 22d of August, 1752, § 2. Purdon B. 40, 41, 45. 2 Ball. 277. 2 Harris 4* Gill Rep. 24. To which it was answered, by

      Gardner and Lewis for the defendant in error.
    That the goods levied were in the custody of the law, and one legal process can ■not be suffered to interfere with another, and that the trustees could not recover, without shewing that they had advertised for the creditors to come in, to know whether there were any whose claims exceeded one hundred dollars. They cited 1 Ball. 354. Serg. on Attachments, 77. 86. Cro. Eliz. 691. 1 Penn. Rep. 117.
   Per Curiam.

The foreign attachments having been quashed can affect the question no more than if they never had existed. The case, then, simply presents the claim of trustees in a domestic attachment, to the residue of money in the sheriff’s hands, after satisfaction of an execution, on which the absconding debtor’s property was sold; and is it possible to doubt of its solidity? The trustees stand in the plea of the debtor, are invested with all his, rights, and are clearly entitled to recover.

Judgment of the court below reversed, and judgment rendered here for the plaintiff,


text:
    MORGAN and others against THE FARMERS’ BANK OF READING.
    IN ERROR.
    What is a good statement under the act of Assembly against the drawer and endorsers of a note.
    Error to the Common Pleas of Berks county. It was an action of debt, by the defendant in error, the Farmers’ Bank of ■Reading, against James Morgan, David Morgan and Jacob R. Bright, the plaintiffs in error, in which the plaintiff filed the following statement, upon the sufficiency ol which the question'was made here after judgment for the plaintiffbelow.
    “The above stated action is founded on a promissory note, dated the 7th of September, 1829, drawn by the aforesaid James Morgan, for the sum of one thousand dollars, and made payable to the said David and Jacob Bright or order, at the Farmers'1 Bank of Reading, without defalcation, sixty days after the date aforesaid, which said David Morgan and Jacob R. Bright, by their endorsement on the said note, transferred the same to the plaintiff, and the plaintiff avers that the whole amount of the said note together with the interest thereon is due the plaintiff.”
    JNO. SPAYD, P. Q.

      Hopkins for the plaintiff in error.

      Heister and Baird for the defendant in error.
   Per Curiam.

It would not be easy to devise a more neat, perspicuous and complete form of statement, than the one which is the subject of this writ of error; and it is not a little strange that exceptions of this stamp, should be repeated after the decision in Boyd v. Gordon, 6 Serg. &r Rawle, 53. Reed v. Pedan, S Serg. &r Rawle, 265. Bucle v. Nicholas, id. 316. Cook v. Gilbert, id. 567, and Bailey v. Bailey, 14 Serg. &? Rawle, 195. We are not aware that any thing in the assignment of error calls for further remark.

Judgment affirmed.


author: Rogers, J.

text:
    SENNETT against BUCHER.
    IN ERROR.
    vrl nr legal contemplation, the right of possession is in the lessor, as against a third person, until the contract is consummated 'by the entry of the lessee.upon the premises leased. When the entry is made, such right of possession is transmuted from the lessor to the lessee as will enable the latter to maintain ejectment, under the act of 18u6, or at common law.. Before entry, the lessee cannot maintain such action.
    In an action of ejectment, brought by a lessor against a lessee, where the matter in controversy was, whether the lease to the. defendant was made for one year, or three years and the plaintiff had, by one witness proved that the lease was for one year, at one hundred dollars per annum and the defendant had proved that this]witness and the plaintiff', had repeatedly declared, that the lease was for three years, it is competent for the defendant to prove, that for a single year, the premises were not worth fifty dollars, and that for alease of three years the premises might have been worth about one hundred dollars per annum.
    Error to the district court of York County. John Bucher the defendant in error brought an action of ejectment against John Sennett, for a mill and three acres of land', which he alleged, he had leased to him for one year, which had expired: and gave the following evidence by Joseph Bucher the plaintiff’s nepfiew.
    “1 was present in March 1830, -when Bucher and Sennett- made their bargain. The bargain was that Sennett was to have the mill, and the house in which the miller lived for one year, to commence on the 1st of April, 1830, at a rent of one hundred dollars — Sennett to keep up all the repairs at his expense, and to gravel the dam, and Bucher to find all timber for the repairs.' I made a memorandum of this; but Sennett left the house before I had finished the writing. This writing was never .signed. Sennett took possession of the mill; and is there still. I do not' know that Sennett saw or read the writing which I had made.
    The plaintiff then rested.
    The defendant proved by Jacob Kirk, the subscribing witness, the execution of a lease of the premises in controversy by John Bucher to Jacob Noss for one year from the first day of April 1831, and offered the same in evidence to wit: lease dated the 17th of Dec. 1830, by which Bucher demises the premises to Noss for one yearfrom the 1st of April, 1831, at which time possession will be given to Noss for one hundred and fifty dollars per year, payable quarterly.”
    This evidence was objected to by the plaintiff, and rejected by the court, and an exception taken by the defendant.
    The defendant then offered to prove, that the witness of the plaintiff, Joseph Bucher, inconversations respecting said lease, declared repeatedly, that it was a lease for three years and that the plaintiff had also declared that it was for a period of three years. And also to prove that the mill and premises were in bad condition, that for a single year they would not have been worth a rent of fifty dollars, that the defendant made valuable and permanent repairs, at great expense upon the premises, under the eye and with the knowledge and consent of the plaintiff, and that for a lease of three years, the premises might have been worth about 100 dollars per year, That while these improvements were making Bucher was present and said that Sennett should have the property for three years.” This evidence was objected to, and the court rejected the testimony offered, that for a single year the premises would not have been worth a rent of fifty dollars, and that for a lease of three years, they might have been worth about one hundred dollars per year, and received the residue of the testimony offered: to which the defendant excepted, and the court sealed a bill.
    The defendant then gave in evidence various declarations of the plaintiff going to shew that the lease was for three years and the plaintiff gave testimony to rebut this.
    The jury found a verdict for the plaintiff: and érror was now assigned in the rejection of the evidence contained in the two bills of exception sealed by the court.

      JDurkie and Leiois for the plaintiff in error.

      Evans and Gardner for the defendant in error.
   The opinion of the court was delivered by

Rogers, J.

At the common law no lease for years, whether it were with or without, any reservation of rent, was looked upon as complete, till an actual entry by the lessee; for although the lessor had done all in his power to perfect the contract, so that he could not in any way derogate from or avoid it, yet till there was a transmutation of the possession by the actual entry of the lessee, it wanted the chief mark and indication of his consent, without which it was thought unreasonable to adjudge the lessee, in the actual possession, to ail intents and purposes; since it might so happen, as is said in 4 Bac. Ab. Title, Leases and Terms for Years, 182, that such lease was made in the absence of the lessee: and when he knew nothing about it, and perhaps might be greater, than he would be willing to take; or the estate might be so incumbered, as to bring a load upon him rather than an advantage. For these reasons, among others the law would not cast the immediate and actual possession upon him, nolens volens; and therefore it was that till actual entry, the lessee could not maintain an action of trespass or ejectment, because these actions, complaining of an immediate violation of the possession, could not be proper, for him, who had no actual possession, 4 Bac. Ab. 182, and the authorities there cited. The defendant for the purpose of defeating the plaintiff’s action, offered a lease, of the premises in controversy to Jacob Noss, but without offering to show that Noss had entered in pursuance of the. lease, and by this means perfected his title. It cannot be doubted, that cither Bucher or Noss had a right to the possession, on the supposition, that the previous lease, to the defendant had expired. Noss having failed to perfect his title, the right of action, remains in the lessor. When a lessor, fails, to deliver the premises according to contract, the lessee has two remedies, either a suit against the lessor on his covenant, or he may, if he thinks proper, enter and recover the term. Noss makes no difficulty, and the objection sounds ill in the mouth of the defendant, who received the term from the plaintiff, and perhaps it would be no strained presumption to suppose that the ejectment is brought to enable Bucher to comply with his contract. That this is the doctrine of the common law, cannot be disputed, and in the opinion of the court, the Act of the 21st March, 1806, makes no change in this particular. The act was introduced, to alter the form of the action by abolishing the fiction of lease, entry and ouster, but was not introduced to change the essential principles, pertaining to the action of ejectment. Such a construction is not necessary to effectuate the object of the legislature. In legal contemplation the right to the possession, is in the lessor as against a third person, until the contract is consummated by the entry of the lessee. When entry is made, such a right of possession is transmuted from the lessor to the lessee, as will enable the latter to maintain ejectment, under the act of 180S, and at common-law.

But another point has been ruled by the court in which we do not concur. I refer to the rejection, of the evidence, of the value of the premises. The propriety of the decision has been supported because as the plaintiff says, the evidence goes to alter the contract; and if it did, it would not be easy to answer the argument, but when we take into view, that the great point here, was, what toas the contract, it is not in our opinion open to that objection. The matter in controversy was, whether the lease to the defendant was made for one or three years.. On the decision of this point, the verdict depended. The plaintiff proved by one witness, that the lease was for one year, and the defendant proved that the witness, and the plaintiff, had repeatedly declared, that the lease was for three years, and then offered to prove, that for a single year, the premises were not worth fifty dollars, much less one hundred dollars, the rent reserved, but that a lease for three years, would be worth one hundred dollars' a year. In a doubtful case as this is, the testimony if received, would and ought to have been entitled to some weight with the jury. We are to suppose that men in making contracts, unless there is proof to the contrary, act reasonably, and therefore, we would rather incline to credit a witness, who deposes that the contract was such, as a prudent man would make, rather than him, whose testimony is at war, with the usual motives and conduct of men. A rents a house to B, by parol, and a difficulty arises, about the quantum of rent. The lessor gives proof, that the lessee agreed to give five hundred dollars a year rent, and the lessee that the contract was, that he should give but one hundred dollars, surely it would be pertinent evidence, and I think entitled to great weight, to shew that the property was worth six hundred dollars, or in another view of the case that it was not worth more than one hundred dollars. Such testimony, in a nicely balanced cause, would in all probability be decisive of the controversy; but certainly it should be submitted to the jury for as much as it was worth. I repeat that such testimony is only proper, when the point is to ascertain what the contract is, and shall in no case be allowed to alter the contract, and this is the distinction With' this qualification, it is not liable to objection, on the contrary, it will serve to answer the purposes of justice, by assisting as I believe in the ascertainment of the truth of the transaction.

Judgment reversed and a venire de novo awarded.


author: Pur Curiam.

text:
    HERSBERGER and another against FREDERICK VENUS and another Executors of VENUS.
    in error.
    An action on a bail-bond cannot be determined by compulsory arbitration.
    Error to the' Court of Common Pleas of York, county, to a judgment rendered in that court, in favor of the defendants in error, who were plaintiffs below, against the plaintiffs in error, who were defendants below, upon the following case:
    An action of debt was brought on a bail-bond to April term, 1821. On the 3d of April, 1821, the plaintiffs entered a rule to arbitrate, and arbitrators were appointed by the parties, under that rule, and on the 25th of -May, 1821, the arbitrators reported in favor of the plaintiffs,for one hundred and six dollars, and judgments was entered on the report.

      The declaration was filed on the 22d of March, 1821, and recited the issuing of a capias out of the Common Pleas, against Johnson and McG-aiu, to August term, 1820, to answer James Hays, for the use of Frederick Venus, the delivery of the writ to the sheriff, the arrest of the defendants on the 10th of July, and the execution of a bail-bond in three hundred dollars by the defendants, and Hersberger to the sheriff, stating the condition of the bond in the following words:
    “That if the said James and Robert should appear before our judges at York, &e. on the first Monday of April, in the year 1820, to answer the said Frederick, now deceased, on a plea of trespass on the case, &c. &c. then the said obligation to be void, or else to be and remain in full force and virtue.”
    Error was assigned
    1. In taking a judgment by arbitration in an action on a bail-bond.
    2. In that the condition of the bond was to appear in a past term.

      Lewis for the plaintiff in error.
    The cause of action was not arbitrable. Brubaker y. Meek, 6 Serg. 8? Raiole, 542. The condition of the bond is impossible.

      Barnetz, contra.
    Cited 2 Penns. Pra. 504. 8 Serg. fy Rawle, 577.
   Pur Curiam.

An action on a bail-bond can not be determined by compulsory arbitration, because it would deprive the defendant of the usual equitable relief) and this has frequently been determined already.

Judgment reversed and record remitted, with directions to proceed.


text:
    WARFEL against BEAM.
    IN ERROR.
    The District Court of the city and county of Lancaster, has not jurisdiction in an action of trespass quare clausum fregit, where an award was made for thirty dollars, and the counsel for the plaintiff did not certify in his precipe, that the matter in controversy, exceeded one hundred dollars.
    Error to the District Court of the city and county of Lancaster. Where judgment was entered upon a report, for thirty dollars, of arbitrators chosen upon a rule entered by the defendant, in an action of trespass quare clausum fregit, brought by Jacob Beam, the defendant in error, against John Warfel, the plaintiff in error, and in which the attorney for the plaintiff did not certify in his precipe the amount in controversy, and no declaration had been filed.

      R. Frazer for the plaintiff in error,

      Norris, contra.
   Per Curiam.

-It is impossible to sustain this judgment, the District Court being clearly without jurisdiction.

Judgment reversed.