text:
    Cornelius v. Molloy.
    A. sold, to B. a quantity of metal as copper, which A. knew not to be copper, but a composition. A. is liable for the deceit in concealing his knowledge from B., who purchased on the representations of A., and was thereby deceived.
    Whether a narr. sets out no cause of action, or a good cause insufficiently averred, is the test of sufficiency after verdict.
    The fact that an article sold was inspected by the purchaser will not avoid the liability of the vendor, if it be a different thing from that sold, if its true character could not be ascertained by mere inspection. — Per Bell, J.
    Concealment of knowledge that the article sold was not in fact what it appeared to' be, or of such circumstances as would induce a purchaser to tost the article before buying, is an undue concealment for which the seller is liable in case for the deceit.— Per Kennedy and Bell, Js.
    Certificate from the Nisi Prius.

      Jan. 17,18. This was an action on the case to recover damages for a fraud, in selling a composition metal as copper. The first count averred that the plaintiffs, at the instance of the defendant, bargained for a quantity of copper at a certain price; that defendí ant, intending to defraud the plaintiffs, fraudulently delivered to them as copper, so bargained for, a certain composition metal, whereas, in truth, the metal so delivered was not copper ; and this the defendant knew; and so the defendant defrauded the' plaintiffs in such sale, whereby they lost the benefit of such sale. The second count averred the bargain for copper for so much as it was worth, and that defendant, knowing said copper not to be copper, so agreed to be bought, but composition metal, sold and delivered it as copper, and thereby deceived and defrauded the plaintiffs.
    On the trial, before Kennedy, J., it appeared that the agent for the plaintiffs called on the defendant, and inquired if he had any old copper to sell; he said he had. They looked at it in the storehouse, and the agent, thinking it to be good copper from its appearance, went to consult the plaintiffs, after learning the price was eighteen cents per pound. • On his return he agreed to take it. It was then weighed’, the bill signed by the agent, and the goods delivered at the factory, stored, and paid for. Two days after, wanting some copper, the agent took.some of this; but on heating and striking it, it was found not to be copper, and unsuited for the purposes of the plaintiffs. Notice was then given to the defendant, but he declined to receive it back; saying he had bought it for » good copper. It was also shown that, shortly before this occurrence, the defendant had sold part of the same goods to a gas fitter, who returned it as not being copper, and received other copper in exchange. The metal was in fact French sheathing copper, sold at auction on account of underwriters. At the auction where the defendant purchased, there was a question made, whether it was composition, but the captain of the vessel said they, knew no other article than copper, and it must be sold as such, to avoid difficulties with the underwriters; and it was sold as copper without any warranty, and with the caution that buyers were to ^depend on their own inspection. The actual value was twelve- and and a half cents per pound, but the auction price was seventeen cents.
    The defendant proved that the plaintiffs’ agent was present during the weighing, which took an hour and. a half, and had every opportunity to inspect it. His son said, that when the agent came to buy it, the defendant said, “ There it is; judge for yourself; I sell it as I bought it.” He further gave evidence that the article was a new one in the market, and known as French copper. That in France, from whence it came, it was known as copper; all compounds of that metal being there known by that name. There ;was some other evidence that the article, when in sheets, was 'known in the mai'ket as sheathing copper, and a good deal that it was not copper, but an al,loy of various metals. ■ • v.

      His honour, in his general charge, coupled with his answers to the points submitted — none of which required it to be left to the jury as a question of fact, whether the article was merchantable under the name of copper, told the jury, in substance, that supposing the defendant had said, “judge for yourself,” yet if he used it with the intention of being thereby freed from responsibility while he was knowingly practising a deceit, it was a fraud. It was for the jury to inquire as to his intention; whether he induced the purchase knowing it was not copper. On this point his honour referred to the matters which had occurred at the auction, and the subsequent sale and return of the goods, adding, the captain’s statement gave no character to the article, it was not known in this market, and had acquired no commercial name; and it being a new article, the rule that if ordinary diligence might have discovered the defect, the seller would not be answerable, did not apply. If, then, he had reason to believe it was not copper, was he not bound to tell the purchaser his reason for such belief ? If he designedly omitted this to induce the purchasers to buy, and it was material for them to know, and if known, it would have prevented the purchasers buying, the withholding of the information amounted to a fraud — if not a suggestion of falsehood, at least a suppression of truth for which he was answerable.
    That the narr. was insufficient, and the charge calculated to mislead the jury, with six particular exceptions to the charge, were assigned for error.

      Fallon and Todd, for plaintiffs in error.
    This case goes further than any other; it is founded on a deceit, not by misrepresentation, nor by an industrious concealment of known facts, but in a want of representation of doubts suggested by others. To make a party liable for concealment, it must be an industrious concealment. The mere neglect to state facts, which might have prevented the bargain, is not sufficient. There must be an active effort to prevent a discovery. This is not pretended on the evidence, nor is it material under the charge. On this they cited 1 Story’s Eq. sect. 212; 2 Stark. Ev. tit. Deceit; Dawes v. King, 1 Stark. 61; Ashlin v. White, 1 Holt, 387; 2 Kent’s Com. 479, 1 Wend. 185, 1 Peake, 226. Here, too, there was an express warning by the words, “ I sell it as I bought it;” Pickering v. Dowson, 4 Taunt. 779; Baglehole v. Walters, 3 Camp. 154. Could, there be a recovery from the auctioneer, and was there any more information communicated by him ? It is clear that the purchase was made under the belief that it was copper, since but one Cent advance was asked on the re-sale.
    But the judge clearly misled the jury in not leaving the question to them whether the article was merchantable under the name of' Copper, which is the test question, however inferior in quality it may be; Salem v. Adams, 23 Pick. 265; Jennings v. Gratz, 3 Rawle, 168.
    The narr. is entirely defective. The first count lays a fraud in delivering a different article from what we -sold him, which is a breach of contract merely. The second lays no fraud, since it expressly avers that what we did deliver was copper.

      J. P. Montgomery and P. P. Brown, contra.
    The jury have decided it was not copper, when they found the defendant sold it knowing it not to be copper. The knowledge and deceit are found-by them. The only question, then, is whether a man, knowing’ the qualities of an article, and selling it' as a different article, thereby practising a deceit, is liable. They cited Crawshay v. Thompson, 4 Man. & Gr. 357; Eyre v. Dunsford, 1 East, 318, 3 Barn. & Ad. 114; Pasley v. Freeman, 3 Term Rep. 51; Shepherd v. Kain, 5 Barn. & Ald. 240; Fletcher v. Bowsher, 2 Stark. 561; Jones v. Bright, 5 Bing. 533; Pillorue v. Hood, 5 Bing. N. C. 97; Ridney v. Stoddard, 7 Metc. 252; Spalding v. Hedges, 2 Barr, 240; Martin v. Pennock, Ibid. 379, 1 Peake, 115.

      Feb. 5.
   Bell, J.

The defendant invokes the aid of the common-law’ rule, which, departing from the pure morality enforced by’ 'the civil code, ordains that a vendor is not to be held answerable for the quality of his wares, or for any latent defect in them, unless he has made a fraudulent representation, or practised some trick or artifice, in. respect to them, whereby the vendee was deceived. It is very true that, generally speaking, a mere omission by a seller to communicate his knowledge of such defects will not bind him to answer for them, though, under peculiar circumstances, even silence will be deemed a fraud. Notwithstanding some contrariety of opinion is to be discovered in the cases, springing from a disposition sometimes entertained to engraft upon the body of the common law the doctrine of the civilians, it is now established;' as the general rule, that the foundation of such an action as the present, is the fraud and deceit of the defendant, by active artifice, to the injury of the plaintiff; or, as has been well expressed by an eminent judge, it is the fraud and damage coupled together, ■which entitles the party injured to relief in a court of justice: Bacon v. Bronson, 7 Johns. Ch. R. 201. Such fraud exists where a party intentionally misrepresents a material fact, or- wilfully produces a false impression, in order to mislead another, or to obtain an undue advantage of him; and this misrepresentation may be, as well by arts or artifices, calculated to delude, as by positive assertions : 1 Story’s Eq. s. 192; Laidlaw v. Organ, 2 Wheat. 195; 1 Dow. Parl. R. 272. Ordinarily, this rule does not comprehend the expression of a false opinion when the parties are dealing irrespective of the particular knowledge possessed by each, because, as it is said, the simulated opinion is presumed not to mislead the other party, who has equal means of information, or, at least, can-not be supposed to rely upon it. But, if the seller falsely represent the quality or character of the commodity to be other than it is in fact, he will be liable to an action for deceit, or may be defeated in a suit brought for the purchase-money, if it appear that the purchaser, not enjoying equal means of knowledge, trusted to such representation. These principles are recognised by many cases. Among them, may be mentioned The Oneida Manufacturing Co. v. Lawrence, 4 Cow. 440, where it was held that, if the purchaser has a full opportunity to examine the article, the vendor will not be answerable for any latent defect, unless there be fraud or express warranty, or such a direct representation as is tantamount to it. This is in accordance with Dawes v. King, 1 Stark. Rep. 61; (2 E. C. L. R. 302;) and Baglehole v. Walters, 3 Camp. 154, which decide that, where a deceit is practised for the purpose of putting the party off his guard and preventing him from being as watchful as otherwise he would have been, an action for the deceit may be maintained. This is especially so, where the thing sold is afiirmed by the vendor to be in specie, the thing bargained for, when, in truth, it is something in its nature essentially different; and it will matter nothing that the article has been inspected and received by the buyer, if its true character be not easily ascertainable by such means, short of analytical experiment, as only indolence or folly would omit. This doctrine is asserted in Osgood v. Lewis, 2 Harris. & Gill, 495, on a question of breach' of contract in the sale of summer strained oil for winter sperm oil, the difference between which, in ordinary weather, could not be discovered upon inspection. The principle of this case is thought' to be departed from in the subsequent determination, by the same court, of Hyatt v. Boyle, 5 Gill. & Johns. 119; but, however this may be, it is certainly in accordance with our own case of Borrekins v. Bevan, 3 Rawle, 23, afterwards recognised in Jennings v. Gratz, as settling the rule, in Pennsylvania, that a seller is answerable where the article inspected and received by the buyer fails to correspond, in specie, with the thing as which it was sold. To the same effect, and, indeed, going further, is Shepherd v. Kain, 5 Barn. & Ald. 240, where a ship was advertised for sale as a “copper-fastened vessel,” but “to be taken with all faults, without allowance for any defect whatsoever.” The vessel, though partially copper-fastened, was not what is known in the trade as a copper-fastened vessel. The buyer had a full opportunity to examine her before the sale ; yet, in an action on the warranty, it was ruled he was entitled to damages, for that the words “ with all faults,” could only mean all faults to which a copper-fastened vessel may be subject; but here the vessel was not copper-fastened, as she was described to be. Most of these, it is true, were actions ex contractu, arising from a breach of warranty, express or implied. But the principle they announce is cl fortiori applicable in case, as for a deceit which proceeds upon the ground of direct falsehood and fraud in the defendant, whereby the plaintiff was misled and damnified. “ A seller,” says Mr. Justice Story, in his luminous treatise on equity jurisprudence, “ is unquestionably liable to an action of deceit, if he fraudulently represent the quality of the thing sold to be other than it is in some particulars, which the buyer has not equal means with himself of knowing ; or, if he do so in such a manner as to induce the buyer to forbear making the inquiries, which, for his own security and advantage, he would otherwise have made.” This proposition is also advanced, in substance, by Chancellor Kent in his Commentaries, vol. 2, 484, 485, 2d ed., and an examination will show it to be the result of all the cases.

If we apply these principles to the facts proved on the trial of this cause, little or no hesitancy can be felt in coming to the conclusion, that the instructions given to the jury at Nisi Prius were, in every essential particular*, correct.

So far as appears from the record, the case was put upon the concession that the article sold by the defendant to the plaintiff was not copper, but a metal used as a substitute for it in sheathing ships. Though portions of it may have been copper, yet, as the testimony established, adulteration, by the admixture of foreign ingredients, had been so extensive as to destroy any distinctive character it might have originally possessed. Subjected to the test pointed out in Jennings v. Gratz, there would seem to be no pretence for asserting it to be copper in any sense, since it certainly was not merchantable under that designation. But, upon this point, and for the purposes of this decision, it is sufficient to repeat that the idea of its being entitled to the appellation of copper does not appear to have been entertained at the trial. The points submitted by the defendant for the answer of the learned judge who presided, do not assume it to have been so entitled; nor was he ever asked to leave to the jury, as matter of disputed fact, what was the true character of the article in question. The charge proceeds upon the concession that the thing sold was not copper, and, though on the argument the defendant’s counsel complained that the judge took the fact from the jury, it is not assigned for error here that he did so. We are then bound to treat the case as it appears to have been treated below, and, in this aspect of it, the first question is, did the defendant make any representation to the plaintiff’s agent in reference to the character of the subject proposed to be bought and sold ? This admits of but one answer. McG-inley swears that, when he called on the defendant, he asked if he had any old copper for sale ? To which the defendant replied, he had four thousand pounds, or a little over, and immediately carried the agent to the store where the so-called copper was deposited, and exhibited it as such. To the same effect is the testimony of William Molloy, the defendant’s son. Here, then, was a direct affirmation made in the course of the negotiation of a distinctive character of the article offered.

The next question is, did the defendant know, at the time, that this affirmation was false, and did he fraudulently advance it to mislead the plaintiff’s agent, and induce him to buy ? This was a question of fact for the jury upon all the evidence, which I may say, in .passing, appears to have been abundantly sufficient to establish a scienter and fraudulent motive — and was so, fairly, left to them. But in addition to positive misrepresentation, I think, with the judge who tried it, the case presents an instance of undue concealment of material facts, for which a court of equity would grant relief, and affording sufficient foundation for an action in a court of law. I agree that one dealing with another is not, under our system of law, bound in every instance to disclose all the facts within his knowledge which may be material to the interests of that other. But there are cases where a party is under a legal or, at least, an equitable obligation to communicate what is not known to the other party. In these cases, it is said, the latter has a right to be informed not merely in foro eonsciencice, but juris et de jure, This is always so, where, from the nature of the subject, there is created a trust or confidence between them which authorizes the ignorant party to act upon the presumption that there is no concealment. A'familiar illustration of this rule, most commonly cited by text writers, is of one selling an estate, knowing he had no title to it,.or knowing that there are encumbrances on it, of which the vendee is ignorant. The suppression of such a material fact, in respect to which the vendor must know the very purchase implies a trust and confidence that no such defect exists, would avoid the sale, on the ground of fraud: Arnot v. Biscoe, 1 Ves. 95, 96. Another instance is furnished by Pearson v. Morgan, 2 Bro. Ch. R. 390, where a party, when applied to for information by another about to loan money on the faith of a certain sum supposed to be secured upon an estate, misrepresented the fact and concealed the truth. Mr. Justice Buller, in giving judgment, said, “ In cases where fraud is a question of fact, it is always considered as a constructive fraud where the party knows the truth and conceals it; and such constructive fraud always makes the party liable.” But these observations are to be taken in connection with the fact that information was specially applied for. In the case in hand, from the impossibility of discovering, by inspection, the true character of the article offered, the vendor must have felt the vendee acted upon a confidence, inspired by the acts of the former, that the thing was what it seemed to be. But besides, here was an application for information answered by misrepresentation, and studied concealment to assist it; and the case is thus brought, as it seems to me, within the principle of Pearson v. Morgan. Nor does it help the defendant that, subject to the suggestion of falsehood, and the suppression of truth, as found by the jury, he said to the plaintiff’s agent, “ there it is, judge for yourself, I sell it as I bought it:” if the latter was put off his guard by the original misrepresentation, and the expressions were used in the vain expectation of escaping the responsibility already incurred. Such an artifice will not suffice to cancel the obligation incumbent upon a vendor to speak the truth, if he speak at all.

The last inquiry in cases of this nature is, was the vendee misled by the misrepresentation and concealment ? In this instance, the evidence leaves little if any room for a doubt upon this head. But this, too, was a question for the jury, and was so left to them by the court. By their verdict they have returned an affirmative answer.

This general review of facts, and of the principles which must direct the decision of the cause, disproves the existence of any mistake in the charge of the court. A detailed examination of the several errors assigned in this court, is, therefore, unnecessary, and they are dismissed with the single observation, that- they suggest nothing to warrant our interference with this judgment,

The ninth error avers that the plaintiff’s narr. is insufficient to support the verdict and judgment. This objection was very faintly urged on the argument, and is untenable. The declaration sets out a good cause of action; it may be defectively, but this is cured by the verdict. The difference is between a bad title to action, correctly pleaded, and a sufficient title, insufficiently averred.

Judgment affirmed.


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    Donath v. Broomhead.
    Where goods shipped to a vendee arrived at their port of destination, and the vendee paid freight and gave his note for the price; but the goods, in consequence of the loss of the invoice, were stored in the custom-house, and remained there until the dishonour of the note, the vendor’s right of stoppage remained.
    Certificate from the Nisi Prius.

      Jan. 17. Case stated. The question was, whether the defend-' ants had lost their right of stoppage in transitu. In 1836, Tryon ordered certain hardware from Broomhead and Thomas, merchants in England, defendants, which arrived in Philadelphia by the Octorara, on the 15th of April, 1837, consigned to Tryon, and accompanied by an invoice and bill of lading. On the 18th, Tryon paid the freight, and on the 25th gave his note at four months for the invoice, exchange and interest, to the agent of Broomhead and Thomas, who retained it until maturity, when it was dishonoured. In consequence of the loss of the invoice, Tryon was unable to enter the goods at the custom-house, to which they were removed from the vessel by the officers. On the 19th of May, Tryon assigned for the' benefit of creditors, and Donath, the plaintiff, was appointed assignee. After the dishonour of the'note, the agent for defendants claimed the goods on their behalf, and notice was given to the collector. Donath, the assignee, also claimed the goods. On the 3d of July, 1843, the goods were sold by order of the collector, and the net proceeds paid into the hands of Gr. S. to abide the result of this suit.
    If the defendants retained the right of stoppage at the time they made their claim, judgment to be entered for them, they repaying, freight; otherwise for the plaintiff.
    Kennedy, J., having given judgment for the plaintiff, the cause was removed here. >

      G. W. Biddle, for plaintiff in error.
    The only question to be argued is, whether the transitus has been determined. All the other questions are settled beyond dispute. The right of a general agent to make the demand is settled in 7 D. & Ry. 126, and the immateriality of a note having been given for the price, in Bell v. Moss, 5 Whart. 189, 206. The origin of the doctrine was in equity — that one man’s goods shall not go to pay the debts of another — and it has long since become a rule of law, which is to "be liberally construed. It is true, an actual corporeal possession is not essential, as was supposed in Hunter v. Beal, cited 3 Term Rep. 466 ; but the test is, whether the consignee has acquired such a control over the goods, that no further act is required to be done by any one who is a link in the chain of conveyance between the vendor and himself: Bolin v. Huffnagle, 1 Rawle, 9: and if we depart from this rule, we have, as is there said, no certain guide. Payment of freight is no more than partial payment of the price; nor has the delivery of the bill of lading greater effect: Tucker v. Humphrey, 4 Bing. 516. There are four classes of cases which determine the transit without corporeal possession by the vendee, but none touch the rule as laid down in Bolin v. Huffnagle. 1. Delivery to a warehouseman, or retention by the vendor at the risk and charge of the vendee. 2. Delivery to a general agent at a resting-place in the transit — according to some earlier cases overruled, however, by the more recent. 8. Delivery on board the vendee’s ship. 4. Intervening rights of third persons, by endorsement of the bill of lading for value.
    The possession by the custom-house officers was not a delivery; it was adverse, at least as much so as retention for freight: Allen v. Mercier, 1 Ashm. 103; Ryberg v. Snell, 2 Wash. C. C. Rep. 294; Walter v. Ross, Ibid. 283; Whitehead v. Anderson, 9 M. & W. 518; Tanner v. Scovell, 14 M. & W. 28; 2 Bing. N. C. 81. Nor does the assignment here make any difference, since the assignee is not a purchaser for value: Bell v. Moss.

      T. Sergeant, contra.
    Where the goods have arrived' at their final destination, and the vendee has received the muniments of title and paid freight, the transit is determined: Bell v. Moss, 5 Whart. 189; Cross on Lien, 371, 372; The detention by the custom-house is immaterial; the goods were then in custodia legis, for the benefit of the owner, and held as a security for a claim against him: 3 Story’s Laws, U. S. 1679; 1 Story’s Laws, 622, sect. 56; 3 Kent’s Com. 554; Wright v. Lawes, 4 Esp. 82; Cross, 369. More especially should that not be so here, since but an accidental loss of a paper prevented actual possession.

      Jan. 26.
   Rogers, J.

The right of a vendor, on the discovery of the bankruptcy or insolvency of the party to whom he has sold goods on credit, to retake them before actual or complete delivery,' is the well-settled doctrine of both courts of law and equity. The general rule is, that the transitus of the goods, and the right of stoppage in transitu, is determined by actual delivery to the vendee, or by circumstances which are equivalent to an actual delivery. There are also cases where a constructive delivery will destroy the right. Short of this, the right exists, and is much favoured; for, as is said, it is unreasonable to allow the goods of the vendor to be appropriated to the payment of other creditors if the vendee fails before payment, and before the goods have actually reached him. These principles are admitted; but the difficulty has been as to its continuance and termination — when the transitus exists, and when it ends. In Tanner v. Scovell, 14 M. & W. 28, it is ruled, that if the vendee take possession of part — not meaning thereby to take possession of the whole, but to separate the part— and take possession of that part only, it puts an end to the transitus only with respect to that part; the right of lien, and the right of stoppage in transitu, still remains. That case is cited, not so much because of its immediate bearing on the case in hand, as because it shows the anxiety of the courts to preserve the equitable right of lien. - But although Tanner v. Scovell does not rule the point raised in the case stated — Nor they, assignee of Leyland, v. Crags and Field, 2 Esp. 613, we think does. In the latter case it is decided, that when goods are consigned, but the duties not being paid, are lodged in the king’s stores, the consignee may stop them in transitu, if he claims them before they are actually sold for the payment of duties; or if sold, he is entitled to the proceeds. This case has been repeatedly recognised, and rules the point: for in all its essential particulars, it is identical with the present — the only difference being, that here the freight was paid, and the vendee was prevented from entering the goods, because he had lost or mislaid the invoice. For the last reason, the goods remained on board the ship until they were removed by the officers in charge to the custom-house store, and there deposited. Until the goods were entered at the custom-house, the vendee was not entitled to the actual possession of the goods, and that is the principle of the case cited. Lord Kenyon, after noticing the relaxation of the stringent rule laid down by Lord Hardwicke, says, the bankrupt had no title to the actual possession till after the duties were paid; for, until then, they were in custodia legis. If this be the correct principle, payment of freight can make no difference as to the actual possession, or the right of possession. The goods are still in the custody of the officers of the law. That payment of freight amounts to an actual delivery, is not pretended; is it, then, such a constructive possession as puts an end to the transitus ? Is the master of the ship converted into an agent or bailee of thevendee? A constructive possession is where the carrier enters expressly, or by implication, into a new agreement, distinct from the original contract for carriage, to hold the goods of the consignee as his agent, not in pursuance of the original contract, but in a new character, for the purposes of,custody, and subject to his order. In Whitehead v. Anderson, 9 M. & W. 518, it is doubted whether a marking or taking samples, or the like, without any removal from the possession of the carrier, though done with the intention to take possession, would amount to a constructive possession, unless accompanied with such circumstances as to denote that the carrier was intended to keep the goods in the nature of an agent for custody. There is nothing here which indicates a change of character, nor an agreement, nor an implication of one.

It is not necessary to deny that were there nothing in the case but payment of freight, a contract or agreement might be implied that the master held the custody of the goods as the agent of the vendee, that his character was changed : but can this be when the goods are in the custody of the law ? In the latter case, neither the master nor the vendee has any contract as to the possession. They are in the custody of the officers of the law. Until the goods, are entered, the right of the vendee is not recognised, and can only be so on presentation of the original invoice. Nor can we understand how the loss of the invoice can vary the case. The objection still remains. The vendee has not entitled himself to the actual possession, and whether this arises from storms at sea, by which the delivery of the goods is delayed, from accident, carelessness, .or any other cause, it is useless to inquire. As the transitus is not at an end, the vendor is not estopped from asserting his equitable right.

Judgment reversed, and judgment for the defendants.


author: Burnside, J.

text:
    Tennent v. Dewees.
    In ejectment by a grantee for part of the estate, conveyed to his use until he was repaid advances, the grantor, defendant, in order to show that the grantee has been repaid, may show receipts of rent by the grantee from the estate between action brought and verdict.
    And where such grantor has subsequently conveyed his title to secure a creditor, one who holds by the prior conveyance to secure advances, &c., purchasing the subsequent title, will not be allowed to claim under such title for moro than he paid for it.
    A settled account is not conclusive where interest has been calculated from a day previous to the actual advance of the principal.
    Certificate from the Nisi Prius.

      Jan. 18. This was an ejectment by Tennent, in which the facts material to the questions raised in this court were as follows:— The defendant and two others, devisees of Dewees, conveyed, in 1828, all their estate under the will to Tennent, the plaintiff, to hold .to his use until he should be repaid certain moneys advanced, or to be advanced, to pay debts due by the estate of the devisor, which debts the plaintiff Tennent agreed to pay.
    In 1831, Dewees, the defendant, conveyed his estate in part of the same property to Bancroft in trust, to pay present and future debts due Bancroft, who, in 1832, assigned to Adams. In 1833, by an instrument in writing, Dewees acknowledged the amount of his indebtedness to Bancroft to be $1020 53, the greater part of which was due prior to Bancroft’s conveyance to Adams. In 1836, Adams conveyed to Hastings, and in 1838 Hastings conveyed to the present plaintiff for $75.
    Kennedy, J., instructed the jury, that in determining the right of the plaintiff to hold until payment of debts, &c., they might take into consideration the state of the accounts for rent received by the plaintiff down to the verdict. That though the accounts had been settled and agreed upon by the parties, yet the jury might correct errors in charging interest from a date prior to the actual receipt of the money. That upon the defendants paying the plaintiff $75, his title under Banoroft was at an end. These points were assigned for error.

      C. Ingersoll, for plaintiff in error.
    Bancroft’s title was not under or in relation to the trust held by Tennent, but a subsequent and independent one. Besides, there was no óffer to pay before suit brought, iafter Tennent had held many years. The tender was made out by considering the receipt of rent subsequent to the action as applicable to this.

      J. Hanna, contri!.

      Jan. 26.

       The evidence on this point was not stated in the paper book, further than that there had been a settlement of accounts by an accountant in the presence of both parties.

   Burnside, J.

We all concur with the late Justice Kennedy. His answers to the several points made on the trial are so full and accurate, no further elucidation of the law is necessary.

Judgment affirmed.


text:
    Flanigen v. The Washington Insurance Company.
    The breach of a municipal regulation, to which a pecuniary penalty is attached, payable by the master or owner, does not avoid a policy of insurance; hence A policy of insurance on an outward-bound vessel is not avoided by reason of not having on board a pilot, though a loss occurred on pilot ground in the bay, and at the time of the voyage there was an establishment of pilots at the port of departure, and the act of 1803 required such a vessel to take a licensed pilot, or forfeit a sum equal to half pilotage.
    Nor did the act of 1803, and the subsequent legislation on the subject, intend to create a statutory seaworthiness. But whether a vessel without a pilot is seaworthy, depends on the usage of the port, the competency of the master, &c.
    State laws and regulations, which are by implication incorporated into a public act of Congress, will be judicially recognised, and need not be pleaded or proved;
    Henee a plea, that a vessel had not on board a pilot, licensed by the State of Pennsylvania, when a loss occurred in the Delaware, is bad in form, for not also averring there was no pilot on board licensed by the states of New Jersey or Delaware; the laws and usages of which states are impliedly incorporated into the act of Congress of 1837.
    In error from the District Court of Philadelphia.

      Jan. 18 — 24. This was an action on a time policy, in which the plaintiff declared for the loss of the brig Warren in the Delaware Bay, by storms and ice, on her voyage from Philadelphia to Wilmington, N. C.
    The defendant pleaded, “ That the said vessel in the said declaration mentioned, was of the burden of seventy-five tons, or more, and set sail and departed on the said voyage in the said declaration mentioned, without having, in accordance with the act of Assembly, in such ease made and provided, received a pilot on board, to conduct her to the capes of the Delato are.”

    On general demurrer, judgment was given for defendants. The defendant had also pleaded unseaworthiness at the commencement of the voyage; that it is the custom and usage of the port of Philadelphia, and was so at the time when, &c., to take on' hoard of every vessel of not less than seventy-five tons, sailing from Philadelphia to any port not within the capes of the Delaware, a pilot, and that plaintiff had not done so, &c. On these, with several other pleas, issues had been joined.
    G. M. Wharton, for plaintiff in error.
    The question is simply whether the act of 1803, s. 29,  renders the insurance void.
    The object of that act was to raise a fund for decayed pilots and their families, not to prohibit masters acting as their own pilots, if they pay half-pilotage. This is a tax, not a penalty, nor was it designed to operate as a prohibition. If, then, the sailing without a pilbt, though the master be competent to act as such, avoids the policy, it must he either because the legislature created a statutory seaworthiness, or rendered such a voyage illegal. It can hardly he said that the first of these was designed, when the same section authorizes the voyage, if a pilot cannot he obtained after a delay of twenty-four hours. A vessel cannot he rendered seaworthy by the mere delay of twenty-four hours.
    The plea, moreover, is confined in its averments to pilots, taken under the laws of Pennsylvania. But this is a matter within the powers of Congress, and they have legislated: Act 1789, 1 Story, 33; 1837, 4 Story, 2536; and there is no denial that a pilot was taken under those laws. The construction of the Pennsylvania act is shown by the acts of 1817, p. 109; 1832, p. 620; 1846, p. 508, to have been confined to its own pilots, and that a statutory seaworthiness was not contemplated, since a certain class of vessels are exempted. The act was probably taken from the stat. 5 Geo. 2, c. 20. But this system has been altered: Hugh, on Ins. 260. This is, moreover, a time-policy, the risk beginning at its date: 9 Mass. Rep. 85; 1 Phil. on Ins. 437; and the subsequent neglect to take a pilot was but negligence in the master, which is no defence: American Insurance Company v. Insley, ante, 223; nor is it averred that we did not wait the twenty-four hours. \JPer Curiam. — You have not replied that.] It is only when a pilot is necessary that one is required to make a vessel seaworthy: 2 Gre'enl. Ev. 323. And it seems settled that the not taking one is but negligence, and not barratry, and the risk is covered: Treadwell v. Union Insurance Company, 6 Cow. 270; Keeler v. Fireman’s Insurance, 3 Hill, 250; McLanahan v. Insurance Company, 1 Peters, 170; 2 Barn. & Ad. 383, where it is said to be a question for the discretion of the captain. *
    2. Was the voyage illegal ? There is nothing to show a wilful breach of the act of Assembly: Warren v. Insurance Company, 13 Pick. 518; Armstrong v. Toler, 11 Wheat. 258; Ward v. Wood, 13 Mass. Rep. 539; Atkinson v. Abbott, 11 East, 141; Planshé v. Fletcher, 1 Doug. 251; Law v. Hollingsworth, 7 Term Rep. 160.

      Miller and F. W. Hubbell, contra.
    The ship was unseaworthy, not having.a pilot on pilot-ground. The cases cited do not apply, because there the act of negligence was subsequent to the attaching of the risk. But seaworthiness must exist at the commencement of every voyage, although the risk has accrued: Hildyard’s Park, 470. That is, the vessel, while under the control of the owner, must be kept seaworthy: Hollingworth v. Brodrick, 7 Ad. & Ell. 40. It is a capacity to contend with the dangers of the sea, and that must be at the commencement of every voyage. The other cases are where there was no establishment for pilots. Dixon v. Sadler, 5 M. and Wels. 415, puts a pilot on the footing of necessary stores. To the same effect are 2 B. & Adol. 380; 3 Serg. & Rawle, 508; 2 Boulay Paty, 24; 3 Pardessus, 66. That this is pilot-ground is shown from the acts of Assembly; and these acts are wrought into the commercial law on this question: New Lib. Law and Eq. 64.
    2. The voyage was illegal by the breach of a municipal law, and that avoids the insurance: 1 Story, 109; 1 Duer on Ins. 318, 319; 2 Camp. 147; Mitchell v. Smith, 1 Binn. 110; 10 Law Rep. 354; 10 Bing. 107; 1 Barn. & Ad. 266; 7 Term Rep. 186. The case in 3 Hill, 250, turned on the fact that the law was not a penal one, nor to carry out public policy.

      This case involves the safety of the pilot establishment, protected by a statute strictly penal. It has been said the exceptions are not denied in the plea; this is disposed of by 2 Ad. & Ell. 312.
    As to the supposed pilots licensed under laws of other states, they are not shown to exist, nor have the statutes been pleaded. They cannot, therefore, be judicially known to this court.

      Meredith, in reply.
    It is a strong ground that not a case can be found declaring this a ground of forfeiture. The act, so far as it speaks of pilots, or those exercising the occupation of pilots, clearly refers to those acting for the public, and not to a master in his own vessel. That this practice has been customary, we are prepared to prove under the proper plea, and it is in accordance with the law-merchant: 1 Emerig. Tr. Ass. 402: but the question now raised is whether all insurances grounded on that custom are void. The act of Congress is of course to be judicially recognised, and of consequence so must the legislation of the adjoining states incorporated therein. These are found in acts of N. J. 1837 ; Dig. Del. Law, 434. The present plea is equally good, whether we had a.New Jersey or Delaware pilot, or none at all. And can it be that Pennsylvania can compel the employment of her own pilots only on the Delaware ? And if they had averred we had no such pilot, the plea would have been bad, because nowhere is a penalty affixed for not taking such a pilot. The argument that a statutory seaworthiness was intended, seems then sufficiently disposed of.
    2. The question of a forfeiture by the breach of such a regulation, is the other ground. This rule has been confused by writers not attending to the distinctions of the cases. The case of vessels carrying contraband of war, are instanced — the warranty of free goods is the ground of defence. Farmer v. Legg, 7 Term Rep. 186, is another. But that was the act of parliament, prohibiting policies on such a cargo. Another class are where the forfeiture preceded the commencement of the voyage; but there the owner’s interest had vested in the crown. In Law v. Hollingsworth, 7 Term Rep. 160, the court refused to decide this to be the effect of the act of parliament, but put the case on the usage of the port. Phillips v. Headlam, 2 B. & Ad. 383, is on the same point. What is the illegality which avoids the contract ? Either where the consideration of the promise was illegal, or where the thing to be done was so. Here there is-a mere omission by a servant, in the course of doing a legal act. This principle is applied to our usury law; it does not avoid the contract, because that is collateral to the unlawful purpose.

      Another set of cases are where the consequences of an unlawful act are insured against, the obvious effect of which would be to avoid the intended punishment. How could this rule be applied to marriages prohibited under a penalty, or of a carriage hired at a place where it was subject to a fine ? In all these cases the contract is valid, but there is a collateral penalty annexed. This is not one of the subjects of a great national policy, as is shown by Congress leaving the legislation to the respective states. If, then, there is no illegality in the contract sued on, nor any warranty' violated, nor an infringement of a great national policy, none of the cases apply. The case in 8 Hill, 250, in effect decides this, by giving effect to an exception in the policy. Clearly, if the violation of the law be the ground, no agreement can be effective.

      Feb. 5.

       “ That every ship or vessel arriving from, or bound to any port or place, and every ship or vessel of the burden of seventy-five tons or more, sailing from or bound to any part (port) not'within the river Delaware, shall _he. obliged to receive a pilot” The act then provides that the master shall report to the wardens on his arrival, and imposes a penalty of $60 for neglect; “and if the master of any ship or vessel shall refuse or neglect to take a pilot, the master, owner, or consignee of such vessel shall forfeit and pay to the wardens aforesaid a sum equal to half-pilotage of such ship or vessel to the use of the society, for the relief of distressed or decayed pilots, their widows and children, to be recovered in the manner hereinafter directedProvided, always, That where it shall appear to the wardens that in case of an inward-bound vessel a pilot did not offer before she had reached Reedy Island, or in case of an outward-bound vessel that a pilot could not be obtained for twenty-four hours after such vessel was ready to depart, the penalty aforesaid for not having a pilot shall not he incurred.”
      This act constitutes a board of wardens, directs the licensing of pilots, ^nd the amount of their remuneration, and imposes a penalty for every vessel biought to the port of Philadelphia by any person acting as a pilot in Delaware Bay without a license.

   Rogers, J.

(after stating the pleadings.) — In support of the judgment it is necessary to show that the act of the 29th March, 1803, on which the question turns, is imperative, that every ship or vessel arriving from or bound to any foreign port or place, and every ship or vessel of the burden of seventy-’ five tons, or more, sailing from or bound to any port not within the river Delaware, shall be obliged to receive a pilot; that the part of the 29th section which provides that when the master of the vessel shall refuse or neglect to take a pilot, the master, owner, or consignee, shall forfeit and pay to the warden, a sum equal to half pilotage, to the use of the society for the relief of distressed and decayedpilots, their widows and children, operates as a penalty, intended for no other object than to enforce the employment of pilots on the navigation of the bay and river. In this view of the act, it is contended that a statutory seaworthiness is created, and secondly, that an omission to comply with the act, in this respect, renders the voyage illegal, and consequently, on both grounds the policy is avoided.. The learned judge repudiates the latter, and bases his opinion on the first ground. The objections to the plea are twofold ; one as to the form, the other goes to the substance. The plea is drawn with an eye to the legislation of this state, the act of 1803, which undoubtedly proceeds on the supposition that they had the exclusive control over every question pertaining to the navigation of the bay and river Delaware. It refers alone to pilots licensed by the authority of this state. And in this view of the case, no doubt the plea is good. But this is a pretension founded in error, and is subsequently corrected by the act of Congress, of the 3‘d of March, 1837, (4 Story’s Laws, 2536,) which provides that it shall and may be lawful for the master or commander of any vessel coming into or going out of any port situate upon waters which are the boundaries between two states, to employ any pilot duly licensed or authorized by the laws of either of the states bounded on the said waters, to pilot said vessel to and from said port, any law, usage, or custom to the contrary, notwithstanding. That the subject of pilotage in bays and rivers bounded by two states is within the constitutional power of the federal government, cannot, I think, admit of doubt. In this view, therefore, of the act of Congress, the plea would be bad, as undoubtedly, if the fact was that the vessel received a pilot from either of those states which bound the waters of the Delaware, no penalty can be inflicted under the laws of Pennsylvania. What, then, is the effect of the act of Congress ? Does it repeal the act, or does it excuse its violation, as the court supposes, in a single case ? Can this court judicially take notice that there are any laws upon the subject in the states of New Jersey and Delaware ? Is it true that the plaintiff is bound to set up this excuse, if, in point of fact, he can maintain such a plea ? As a general principle, I freely admit that the laws, even of a sister state, must be proved as facts, and that we cannot judicially take notice of their existence; but I am strongly inclined . to the opinion that the rule is not applicable to this case. We judicially know that the waters of the Delaware river and bay are bounded at least by three states.

We also know that the Congress of the United States have legislated on this subject, and have, in effect, incorporated into their act, (the act of the 2d March, 1837,) the regulations of the states of Pennsylvania, New Jersey, and Delaware. It is understood that the act of Congress grew out of a dispute between the states of New York and New Jersey, as to the employment of pilots, the former asserting a right to prescribe that none but pilots licensed by their law should be employed in navigating vessels bound to their port. I am at a loss for a reason why we are not bound to notice the acts of the respective legislatures in the same manner as if incorporated, verbatim et literatim, into the body of the act. Under the act of Congress, they form parts of one system, incon-' gruous, it may be, in some of its enactments, but perhaps not more so than we sometimes find in acts of the legislature, confessedly local, and confined exclusively to the bounds of the state. If this view of the case be correct, the plea is bad, because the pleader should have averred that the vessel sailed on her voyage without •.having a pilot, &e., in accordance with the act of Congress, and the acts of Assembly of tbe several states of Pennsylvania, New Jersey, and Delaware. But this is a matter relating to the form of pleading, and touches the principal point only so far as it sheds some light on the principal question. It enables us to decide whether it was the intention of the respective legislatures to make it imperative on the owner of the ship or vessel, in the cases specified, to employ a pilot. The main question is, is it absolutely enjoined, undermuq^nalty, or has the owner the choice of employing a pilot, or paying halfpilotage, when he deems one unnecessary, the master of the vessel being selected for his skill, and fully competent, in his judgment, to navigate the waters of the bay and river. The question thus presented is one of some interest to the commerce of this port. The act, it is true, in 'its terms, seems to justify the position assumed by the learned judge, for in the 29th section of the act of 11808, on Avhich his decision is based, the legislature say, that every ship or vessel, &c., shall be obliged to receive a pilot; and in the subsequent part of the same section, they speak of half-pilotage as a penalty. But in the construction of this act, we must avoid laying too much stress on particular expressions. An eye must be had to the general intent, as evinced in its whole tenor. If Ave give the section a literal construction, every vessel above the burden of seventy-five tons is obliged to employ a pilot, even when trading between the city of Philadelphia and any port within the Capes, on the Delaware Bay. But this surely never entered into the contemplation of the legislature, as it would put an end to business in vessels of that description, of which a great number are constantly employed, very much to the advantage of this domestic and gainful commerce. It is very evident, from a glance at the act, Avkick is too long to be noticed in detail, connected AYitk the knowledge Ave have of its history, and subsequent legislation, there has been a conflict of interests between the owners of ships and vessels employed in the foreign and coasting trade, and particularly the latter, on this subject,- one contending for, and the other against, the compulsory employment of pilots in the navigation of these waters. This difference has resulted in a compromise. The legislature have Avisely decided not to compel the owners to employ one, but have permitted them, if they please, to compound by paying half-pilotage, for the benevolent and beneficial purpose of relieving distressed and decayed pilots, their widoAVS and children. The act sets out an induce- ' ment to avail themselves of their services, but does not compel them to do so. This construction of the act is reasonable and just. The legislature had two objects in view, the encouragement of that meritorious and patriotic class of men, by employment im tbeir profession, and when that cannot be accomplished, by providing a fund, at the expense of the owners, for the support of themselves, their widows and families, when, either from age or disease, they may need assistance. It is just as to the owners, whose interest it is to encourage a race of men surrounded by peril and hardship, and who contribute so much to the security of life and property, in' the intricate navigation of our waters. But while this object is; kept steadily in view, care has been taken not to throw too great a burden on the owners, which would certainly be the result of compelling them to employ a pilot, and of course pay full pilotage, even when the master of the vessel may have equal, if not greater skill than those whom they may be obliged to employ, many of .them being selected because of their intimate knowledge of the navigation. It will add much to the expense, from the fact of the frequent voyages they make in the prosecution of the trade; and this should be avoided, as it is well known that so much of the prosperity of the city is owing to the coasting trade, that it may be safely asserted, that to cripple it with an onerous tax, would be aiming a deadly blow at the commerce of the port,, alike' injurious to the pilots themselves, and the great and increasing-trade of our citizens. And thus it stands on our own act ;- but those suggestions are given additional force when taken in. connection with the statutes of our sister state. The Delaware act, which is copied in part from the Pennsylvania statute, was- plainly intended, as its title imports, not for the purpose of creating a statutory seaworthiness of the vessel, which never entered into the-minds of the legislators, but for the relief of distressed and decayed pilots, their widows and children. Although in substance nearly the same as the act of 1808, yet in connection with the title to the bill, which is entitled to some weight, I cannot view it as indicating any other intention than to leave it optional with the owner. But’ the statute of New Jersey is still less equivocal. The-act of the 8th February, 1837, sect. 18, enacts, that if any master of a vessel,, except schooners and sloops employed in the coasting trade,.licensed for that purpose, and not making the usual signal for a pilot, coming into the ports of Jersey City, Newark, and Perth Amboy, or into any of the ivaters of New Jersey, shall refuse to receive on board and employ a pilot, who shall have offered to go on board, and to take charge of the pilotage of such vessel, the master, owner, or consignee of such vessel shall pay to the pilot half-pilotage, from the place at which such pilot shall have offered himself, to the port of destination. It will be observed, that' from a coasting vessel, neither full nor half-pilotage can he collected, unless with the consent of the master of the vessel, indicated by his making the usual signal for a pilot. And further, there is not the slightest intimation that a pilot must be employed in every case. The master is left free to do so or not, upon paying to the person offering himself as a pilot, half-pilotage, differing, as to the recipients, from the acts of Pennsylvania and Delaware. Taking, then, all the acts as in pari materia, which, since the passage of the act of Congress, we deem ourselves bound to do, we have come to the conclusion that there is nothing in the statutes which makes it obligatory on the owner or master of a vessel, whether engaged in the foreign or coasting trade, to employ a pilot. - •

This proposition being thus established, there is an end of the argument, based, as it is, on the supposition that the act is imperative. The argument is founded on the hypothesis that there is a statutory seaworthiness prescribed; that, failing or omitting to comply with the provisions of the act is a breach of an implied warranty in the policy which awards it. And further, that there is a penalty imposed which renders the voyage illegal. It must be observed that there are other issues on which the case must ultimately depend. It is not my intention to deny that it is part of the implied warranty of seaworthiness that there shall be on board the vessel, at the time the risk commences, not only a sufficient crew and a master of competent skill and ability to navigate her; but, if she sails from a port where there is an establishment of pilots, and the nature of the navigation requires one, that the master should take a pilot on board: Phillips v. Headlam, 2 Barn. & Ad. 390. This, as a general proposition, is true, with some explanation. It is not necessary in all cases to take a pilot without regard to the burden of the vessel or the nature of the trade. In 1 Emerigon, p. 402, it is laid down that a captain, who knows the place to which he is bound, is not obliged to employ a coast pilot. These matters must be regulated by the custom of the port, and hence the necessity of inquiring into the -custom, which can be done only through the medium of a jury. Is it customary, or necessary, for a vessel engaged in the coasting trade, of the burden of the one in question, to take a pilot, when the master, in the opinion of the owner, has competent skill to conduct her to the ocean ? That the river and bay of the Delaware is pilot ground for all vessels engaged in the foreign or coasting trade, is most true; but it is made so, not by force of the act of 1803, but by the usage of the trade or port. It is coeval with the settlement of the province, or, at any rate, existed, and was judicially known long before the passage of the act in question. That the nsage may he modified by statute, may he conceded, hut not to the extent of creating a statutory seaworthiness. That a policy may be affected by the provisions of the statute, cannot he denied; but this ought to he admitted with great caution. It is a matter in which all nations, foreign and domestic, are interested. The custom of the port may he known to foreigners engaged in trade; hut it is difficult for them to know onr complicated regulations by statute. A statutory seaworthiness may give rise to impediments in the way of friendly intercourse, the effect of which may he injurious to commerce.

Judgment reversed, and judgment for plaintiff on the demurrer and remittitur, with directions for a venire to try the issues, assess the damages, &c., as in the form, ante, p. 220.


author: Bell, J.

text:
    Carter v. Trueman.
    Under the act of 1834, an administrator de bonis non is entitled to recover from the representatives of a former administrator the balance of an administration account for the purpose of distribution, although the fund consist of the surplus proceeds of real estate sold by the sheriff under an execution, and the account was settled prior to the act of 1834.
    And voluntary payments to persons claiming to be, but who were not, next of kin, will be no defence.
    Nor is it necessary to show debts remain unpaid.
    The act of 1794, limiting the right of representatives, &c., to claim to seven years, does not extend to the surplus of a sheriffs sale of the decedent’s real estate.
    The intention of the decisions reversing the rule of Steele v. The Plienix, was to restore the common-law rule of competency of witnesses. . •
    The widow of an intestate releasing to the administrator without consideration, and with an avowed intention to make herself competent, is a competent witness for the administrator to prove her marriage in an action to recover the proceeds of die intestate’s real estate from the representatives of a former administrator, which right of recovery mainly rested on the fact of the marriage.
    In error from the District Court of Philadelphia.

      Jan. 24 — 26. This was an action of debt by Trueman, administrator de bonis non of Isaac Trueman, against Carter, administrator of Elizabeth Trueman, to recover money received by Elizabeth, as administrator of Isaac Trueman. The first count was for the balance of an administration account settled in the Orphans’ Court in 1828; the second was in debt generally for money received as administratrix, being proceeds of real estate. The defendant pleaded an administration and distribution of the fund, (being the surplus proceeds of real estate of Isaac, the intestate, sold by the sheriff, remaining after payment of debts and liens,) by payments to Elizabeth, the widow, and to the sister, nephews and nieces of the in testate, who were his next of kin, and persons lawfully entitled under the act of Assembly. The plaintiff traversed the allegation that the payees were next of kin, &c., and this issue was found for him.
    The defendant also pleaded the same plea, with an additional averment that, after the said distribution, more than seven years elapsed, and none of the intestate’s relations, or persons concerned, made legal claim to any share within seven years, by means whereof they and the plaintiff were barred, &c., under the statute. To this the plaintiff replied, that the persons to whom'payments were made, were not widow or heirs, and that, at the death of Isaac True-man, he left a son who made lawful claim within seven years. The issue joined, as to the claim, was deemed immaterial by the court below, who considered no evidence had been given in support of it.
    It appeared on the trial, before Findlay, J., that Isaac True-man was married in 1809 to Elizabeth, the defendant’s intestate, with whom he lived until his death in 1827. Afterwards proceedings were had upon a mortgage given by him, and certain real estate sold by the sheriff, the surplus of which was paid over to his widow as administratrix, and was the fund now in question. In 1828, she settled an account in the Orphans’ Court showing a balance for distribution. In that account, she stated there was a claim for $101, made on the estate, which was resisted under the belief it was unjust. This report was confirmed in Aug. 1828. The balance of this account was distributed by her without an order of the court in the same year — the administratrix retaining one-half as widow, and paying the- residue among the sister, and nephews, and nieces of Isaac Trueman. In 1844, the administratrix dying, letters of administration de bonis non were taken out on the estate of Isaac Trueman, and this action commenced.
    The plaintiff having given evidence by reputation of a marriage between Isaac Trueman and one Elizabeth Pearce in 1801, and proved the birth of a son who was still living, called Elizabeth Taylor, the alleged wife, to prove the marriage. On objection to her as interested, a release by herself and husband to the plaintiff, executed at the time of her examination under a commission and for a nominal consideration, was exhibited. On her voir dire, she said she executed the release for the purpose of qualifying herself as a witness; she had no other reason. Her admission, as a witness, was the only question of evidence material here.
    The verdict, which, under the charge, was for the entire balance of the administration account, with interest, having established the first marriage and the legitimacy of the plaintiff, who was the son of Isaac Trueman by his first marriage, the questions raised on the record were, whether the plaintiff could maintain the action ? 2. Was the claim, or any part of it, barred by non-claim for seven years, after a payment, by way of distribution, to those who were not next of kin? 8. Was Elizabeth Taylor a competent witness ?

      McMurtrie and Mcllvaine, for plaintiff in error.
    Prior to the act of 1834, the plaintiff could not sue; the right of the administrator de bonis non is there extended to all goods, moneys, and assets of the decedent remaining in the hands of the former administrator. Does the right to sue for a devastavit pass thereby ? It was held not to, in Thomas v. Reigel, 5 Rawle, 281, under the act of 1797, which gives the same rights to administrators appointed in the room of one resigning the office as are given by the act of 1834 to the plaintiff. The court then said that, where money had been paid away, though improperly, it could not be said to remain in the hands of the administrator. This right was vested in the creditors and distributees, (Packman’s Case, 6 Rep. 19,) more than six years before this suit brought, and it cannot be supposed the right was to be revived by the appointment of a trustee. The fund, too, was not received as administrator appointed by the register, (Kendall v. Lee, 2 Penna. Rep. 483,) but as a special officer appointed by the court under whose process the sale was made. This peculiar office does not pass to the administrator de bonis non,-(16 Serg. & Rawle, 337,) whose sureties would not be liable: 1 Watts, 437; 8 Watts, 159, 214. The act of 1834, moreover,had reference to the payment of debts merely, which is evident' from it directing judgment to be for the balance of the administration account. That account does not admit payments by way of distribution: Rittenhouse v. Levering, 6 Watts & Serg. 190; 5 Barr, 97 ; hence, on the construction contended for, even rightful payments in distribution could not be credited. The proper construction would, therefore, seem to confine the plaintiff’s right to the assets actually in hand and belonging to the estate. The act, moreover, excludes all cases of decedents prior to its passage, so far as a remedy was given by prior acts, and that there was a remedy here appears by the act of 1794, s. 1; 3 Smith, 144.
    But the bar of the statute is more important. It extends to all persons interested, claiming shares in the estate. It is the settled rule that, if a statute of limitation includes a subject matter by its words, equity cannot make an exception: Beekford v. Wade, 17 Ves. 87; Bombay v. Boyer, 14 Serg. & Rawle, 256. There is every reason for including the present fund, though it happens to be the proceeds of land, since the statute of limitations does not extend to it, being a trust; and no presumption of payment can arise after proof of mispayment: Levers v. Van Buskirk, 7 Watts & Serg. 71. The persons here claiming beneficially were fully barred before the right was given to the plaintiff. The only question is, is the property included ? When received by the administrator, it was personalty of the decedent, though by statute distributable as realty, since it is only for the purpose of ascertaining the person entitled that the doctrine of equitable conversion is used. The qualities of property all attach, though, to ascertain the owner, equity will consider property converted in certain cases: Oldham v. Hughes, 2 Atk. 454; Burgess v. Wheate, cited 2 Ves. jun. 174; Flanagan v. Flanagan, Ib. 176; Hooper v. Goodwin, 18 Ves. 166; Hewitt v. Wright, 1 Bro. C. C. 86; Curling v. May, stated 3 Atk. 255, 2 Ves. jun. 172; Dyer v. Cornell, 4 Barr, 359. In this state the administratrix was obliged to receive the fund; and she received it as personalty, though distributable as realty would have descended: Commonwealth v. Rahm, 2 Serg. & Rawle, 377; Guier v. Kelly, 2 Binn. 298; Commonwealth v. Mateer, 16 Serg. & Rawle, 416; Grider v. McClay, 11 Serg. & Rawle, 232; 4 Watts, 73; 7 Watts, 563; 6 Watts, 33. If not personalty, the administrator would not be protected by a refunding bond, since it is for that only such a bond can be demanded; and protection for mispayment is constantly afforded by courts to trustees: Hele v. Stowel, 1 Ch. Ca. 126; In re Wilson, 4 Barr, 430; Grier v. Huston, 8 Serg. & Rawle, 402; Earnest v. Earnest, 5 Rawle, 220.
    The witness was open to greater objection than has been held sufficient to exclude in several cases, particularly Reading v. Johnson, 7 Watts & Serg. 325; Patterson v. Reed, Ib. 145; Grayson’s Appeal, 5 Barr, 395; Clover v. Painter, 2 Barr, 46; Asay v. Hoover, 5 Barr, 37, 38; 5 Barn. & Cress. 188. Prior to 1834, she must have been a legal plaintiff for her share. She is now a cestui que trust, owning part of the fund. She released to her own son, who was her trustee — without consideration — at the moment she was called to testify, and for the very purpose of qualifying herself as a witness. This release operated, moreover, by way of passing an estate to her son, as the other distributee: Newlin v. Newlin, 1 Serg. & Rawle, 279.

      J. Clarke Hare, contra.
    Executors and administrators, receiving funds, are liable like other defendants at common law: rightful payments only are a defence. The cases of mispayments cited are of trusts expressly for those receiving, which were voidable by others; but until avoided the payments were proper. The right of the plaintiff is rested on the statute, the words of which are as full as possible, and include every possible claim against the deceased administrator in virtue of the estate. It is not confined to the balance of an admitted account, but what is legally due by the administrator is to be recovered. If creditors or distributees proceeded for a devastavit, as it is agreed, they would be met by an admission of assets, which would defeat their action. This question is, however, no longer an open one: Drenkle v. Sharman, 9 Watts, 485; Commonwealth v. Strohecker, Ib. 479; Weld v. McClure, Ib. 495; Commonwealth v. Barnitz, Ib. 257. Nor does the nature of the fund make any difference — it is personalty of the intestate from the date of the sheriff’s sale. After a receipt by an administrator, what reason can there be for a separate course of transmission, for purposes of settlement of the estate, from that of other personalty. The difficulty of requiring two accounts to be kept would be almost insurmountable. As to the allegation that the debts are paid, it is submitted, that is not traversable: Morrison’s Case, 9 Watts & Serg. 116; Commonwealth v. Forney, 3 Watts & Serg. 353. It cannot be that an administrator’s right is to depend on that, unless there has been a rightful distribution; nor then, unless after a final settlement of the administration account. In Commonwealth v. Mateer, the administrator was held entitled to recover the proceeds of land from an administrator pendente lile.

    The limitation to claims for shares does not extend to this case. The plaintiff is not named therein, nor does it extend to this fund: Blackmore v. Gregg, 2 Watts & Serg. 182. It is confined to personalty existing at the death of the intestate, and cannot include a fund which might have no existence until after the period had elapsed. The law preserves the two species of property entirely distinct in all matters relative to the distribution, even after conversion of the realty. But supposing it otherwise, the plea is defective, in not averring payment bona fide, and without notice of our right. Had these averments been there, and found for the plaintiffs, it would scarce have been a question: Logan v. Richardson, 1 Barr, 372.
    It is submitted the object of this court, in overturning Steel v. The Phenix, was to restore the common-law rule of incompetency of witnesses. A general rule must be adopted. Parties to the record in all cases, and those who may use the verdict and judgment as evidence, or against whom it may be used, are excluded. If then the common law was intended to be restored, the question is a plain one: the witness was not a party, nor liable for costs. She was interested in part of the fund to be recovered. That she discharged; and all legal right to a benefit was gone. Can courts of justice with safety inquire further ? The books are full of this subject: Cornell v. Vanartsdalen, 4 Barr, 364, was nearly similar. Viner, Abr. Ev. F. pl. 53; Heath v. Hall, 4 Taunt. 326; Carter v. Abbott, 1 Barn. & Cress. 444; Stall v. Catskill, 18 Wend. 466; Bemis v. Charles, 1 Met. 440; Gillespie v. Gillespie, 2 Bibb. 89; 13 Mass. 391; 1 Serg. & Rawle, 275; 16 Serg. & Rawle, 315; 9 Johns. 123.

      March 13.
   Bell, J.

It is certain that prior to the enactment of the thirty-first section of the act of 24th February, 1834, (Purd. 477,) this action by the administrator de bonis non, &c., of Isaac Trueman, deceased, could not have been sustained against the estate of the first administratrix, under the circumstances that have place here. As the law stood before that statute, actions to recover the balance appearing to be due upon the face of the administration account settled by Elizabeth Trueman, could only have been maintained by the creditors, or next of kin of the original intestate; and this, whether the administratrix had been guilty of a devastavit or not: Packman’s Case, 6 Rep. 19; Wankford v. Wankford, Salk. 306; Coleman v. McMurdo, 5 Rand. 51; Potts v. Smith, 3 Rawle, 369; Commonwealth v. Strohecker, 9 Watts, 479; Thomas v. Reigel, 5 Rawle, 281. But the law of this state has been, in this particular, changed by the act of Assembly, to which I have referred, for reasons that are so fully and emphatically expressed by Mr. Justice Kennedy, in Drenkle v. Sharman, 9 Watts, 485, as to render any examination of them here unnecessary. By that case, following the provisions of the act, it is settled that a judgment-creditor of a decedent, — and distributees and legatees stand in the same category — cannot bring an action to recover his judgment against the administrator of a deceased administrator de bonis non of the original decedent, though an account had been settled, showing a balance due to the first estate in the hands of the last administrator at the time of his death, applicable to the payment of debts; but that the proper party to recover and pay such balance to the parties ultimately entitled to it, is a new administrator de bonis non. The doctrine of this case is, under the statute, indisputable, and its effect is -to subrogate the substituted administrator to the common-law rights of creditors, next of tin, and legatees, for the benefit of all interested in the fund, whether it had been misapplied by the original administrator or remained in his hands at the time .of his death. Nor does it make any difference that in this instance the account, ascertaining the balance sued for, was settled and confirmed, and a part of the fund paid over by the administratrix to the brothers and sisters of her intestate, long before the passage of the act of 1834. For every purpose of remedy, the section under consideration is as applicable to pending cases which originated before its enactment, as to those which date their inception since that time, as is clearly shown by Drenkle v. Sharman, supra. Neither will -the fact of such payment, improperly made, interpose an objection against the plaintiff’s right to recover. To say nothing of the proof of actual notice of the first marriage and the legitimacy of its issue, presented by the record, but which, perhaps, did not enter into the consideration of the court below, it appears the administratrix undertook, upon her own responsibility, to ascertain who were next of kin to her intestate, and to make distribution accordingly. She was not bound to do this; for, although it has not, perhaps, been usual to apply for a special decree of distribution -under the laws regulating the descent and distribution of intestate estates, (Earnest v. Earnest, 5 Rawle, 220,) yet in cases of doubt or difficulty the safety of an administrator requires he should call for such a decree ; and if he assume to distribute the fund in his hands without it, it is at his peril. He may do so if he will; but then he has no other protection than in the correctness of his action, or the acquiescence of the parties in interest. These remarks apply with increased force to that portion of the fund retained by the administratrix herself, in her assumed character of lawful widow of the intestate; for if a mispayment to third persons will not protect her against the claims of her successor in the administration, of course an unauthorized retention by her, though by virtue of a supposed right, cannot be set up $s a bar.

But it is urged by tbe plaintiff in error, that the 31st section of the act of 1834 was intended to apply only in those cases where debts still remained due from the original estate, and therefore requiring the intervention of an administrator to avoid circuity and multiplicity of action, and for their more convenient payment. It may be that where it is conceded no debts remain to be satisfied, a distributee may be permitted to recover his share of an ascertained balance by action immediately against the personal representative of the first administrator; but even this is more than problematical in view of an express provision of the statute to be presently brought to notice. In the case at bar, it would seem a debt was claimed as due from the estate by a certain Michael H. Anthony, which remained in dispute. Of the nature of this claim we have no information, nor whether it is still urged. But waiving this, as not to be insisted on, I think it clear that where, as here, the suit is by an administrator do bonis non, claiming to recover the fund which has or ought to have been in the possession of his predecessor, it is not competent to the representative of the latter to suggest .the non-existence of debts as a bar to the action. To permit this, might, and probably would, in a variety of instances, lead to the trial of many collateral issues, to settle the disputed fact of debt or no debt; and that, too, when the supposed creditors could not be made parties to the proceeding. Such a practice would be attended with so much inconvenience and confusion that it ought not to be admitted, unless very clearly sanctioned by the statute. But this is so far from being the case, that the language of the act imports a right of action in the existing administrator without reference to the indebtedness of the original estate. It is, « Administrators do bonis non, with or without a will annexed, shall have power to demand and recover from their predecessors in the administration, or their legal representatives, all moneys, goods, and assets remaining in their hands, due and belonging to the estate of the decedent,” &e. In this there is neither exception to nor restriction of the power of the substituted administrator, nor any thing to point to a distinction, in this particular, between assets unencum'bered and those which may be 'applicable in payment of debts. In the cases ruled upon the statute, the second administrator is, accordingly, treated as standing, indifferently, in the place of creditors and distributees. It follows that the representative of the deceased administrator cannot set up the non-existence of debts to defeat the statutory right of the successor to demand and recover from the former all moneys, goods, and assets, due and belonging to the estate of the decedent.

But the defendant below seeks to prevent the plaintiff’s recovery in this action upon another ground. It is urged that the balance ascertained by the administration account is derived from the proceeds of the real estate sold under a judgment recovered to enforce payment of a mortgage with which it stood encumbered in the lifetime of the decedent, and that this cannot be deemed either goods, money, or assets, within the provision of the act. This notion admits of very easy refutation. Though in England the price of lands cannot be brought into an executor’s account in a course of administration as assets, in Pennsylvania, from the very beginning, the rule has been different. With us, land has always been deemed assets for the payment of debts; and it has therefore ever been the practice, when the lands of a decedent are sold by execution, to pay the surplus remaining after the satisfaction of liens to the executor or administrator in whose hands it is liable for the payment of other debts: Guier v. Kelly, 2 Binn. 298. In Kendall v. Lee, 2 Penna. Rep. 486, 487, the difference in this respect between a sale by order of the Orphans’ Court for the payment of debts and one made by virtue of an execution, is pointed out; and it is observed that an administrator’ is entitled to receive the surplus avails of an execution though he give no additional security, for the right is a consequence forced on the courts from necessity, arising from want of legislative enactment. This right of the administrator is also conpeded in The Commonwealth v. Rahm, 2 Serg. & Rawle, 375; though it is said if the heir can make it apparent there are no debts remaining unpaid, the court will award the surplus to him, providing, at the same time, for the safety of creditors, should any such appear in future.

It will be remarked, that the right to recover the surplus proceeds of land sold, does not depend, at common law, upon the fact that the administrator has given security for its due application, the register being without power to exact such security. The right results from the legal axiom that, with us, lands, like chattels, are assets, and, when turned into money, liable to be brought into administration as such. The want of security was felt to be an inconvenience ; but this was not permitted to operate to prevent the fund from passing to the administrator. Did the question rest here, no difficulty could be felt in pronouncing the plaintiff’s right to recover, since, by the express words of the act of 1834, he is empowered to claim all moneys, goods, and assets; and it can make no difference that these assets sprung originally from realty, for in every judicial sale for the payment of debts, whether of chattels or lands, the money raised is in course of administration, and for that purpose goes to the personal representative: Grider v. McClay, 11 Serg. & Rawle, 224; Commonwealth v. Pool, 6 Watts, 32.

But we are not left to rest on this reasoning and these authorities. Acting, probably, on the hint dropped in Kendall v. Lee, the legislature, by the 33d section of the same law of 1834, provided that, “ in all cases where property, real or personal, of a decedent, is sold upon an execution, and more money raised than is sufficient to pay off liens of record, the balance shall be paid over to the executor or administrator for distribution; but before any such payment shall be made, such executor or administrator shall give bond to the satisfaction of the court, conditioned for the legal distribution of such money: Provided always, that such money shall be distributed as the real estate, of which it is the proceeds, would have been.” Now, by the very terms of this section, the proceeds of realty go to the executor or administrator for the purpose of distribution, whether that be by its application in payment of debts, or in satisfaction of distributees; and as, by the thirty-first section, an administrator de bonis non may call for any fund which his predecessor may legally receive, he is, of course, entitled to the avails of realty left undisposed of by the first administrator. (See Morrison’s Case, 9 W. & S. 116.) These sections are, therefore, decisive of this point of the present controversy, if, by retroaction, they embrace cases originating before, but still pending at the time of their enactment. That the first of them is retrospective, is determined by Drenhle v. Sharman; and the argument upon which that decision rests, also proves the last is invested with retroactive capacity. If to this be added the consideration that the latter section is, for the most part, but an affirmance of the old law, with a super-added stipulation for security, no hesitancy can be felt in bringing the present case within it.

Another distinct ground of defence is, that the plaintiff is barred of his action by the limitation provided in the eighteenth section of the act of the 19th April, 1794, requiring parties having an interest in the estate of a decedent to mate claim to their respective shares within seven years from the death of the intestate, under penalty of forfeiture. But this provision is applicable to the personal estate of the decedent only, and has no operation to divest an interest in realty: Blackmore v. Gregg, 2 Watts & Serg. 182. Its object is to protect administrators in the event of a bona fide distribution of the personal chattels and choses in action of the deceased, without notice of outstanding claims; but it cannot be interposed in aid of a disposition even of personalty made mala fide: Logan v. Richardson, 1 Barr, 372.

To bring the present ease within the influence of the statutory limitation, the defendant is forced to insist that the proceeds of realty sold, either by order of the Orphans’ Court for payment of debts, or under an execution, is in this state considered as personalty, and is so to be treated. It is true, as we have in part seen, that for certain purposes, our decided cases recognise this transmutation, but it is always with the qualification that such proceeds shall be distributed to the same persons to whom the land would have descended had it not been sold, and in accordance with this is the proviso of the 33d section, already cited. In Clipper v. Livergood, 5 Watts, 115, it is said that though real estate converted by an order of the Orphans’ Court, is considered as money, yet when it can be traced to the source from whence it came, it will, for the purpose of distribution, be treated as realty. It is not, therefore, to be regarded as money for every purpose, and least of all with the view of bringing it, in the hands of an administrator, within the operation of the limitation given by the act of 1794. It is obvious the framers of the section under review had not in contemplation the proceeds of land. This is apparent from the impossibility of applying the provision to such proceeds without manifest absurdity. The limitation which it gives begins to run from the death of the intestate, but lands descended may, and frequently do, remain unconverted for many years after the death of an intestate. During this period it will not be pretended the statute can take effect. When, then, is it to commence to run ? Will it be answered, from the moment of transmutation ? But for this position no warrant is to be found in the terms of the act, and there is" nothing in its spirit which would justify its extension by equitable construction. Nay, in this particular, there is no room for construction, for the moment when the disqualifying period is to begin is unequivocally marked. But as, in the case of lands descended, it cannot then begin, it necessarily follows it cannot begin at all. The District Court was, therefore, right in ruling that the issue which raised the question of claim within seven years after the death of the decedent was immaterial.

The only remaining supposed error insisted on, is assigned in the admission of Elizabeth Taylor as a witness for the plaintiff below. The objection to her competency is based upon the doctrine of Post v. Avery, and the other kindred cases. But the great object of these determinations was to get back to the common-law rule, which had been unadvisedly departed from in Steele v. The Phoenix Insurance Company. In correcting a mistake of this character there is always danger, unless great watchfulness be used, of transcending, in the opposite direction, the true line of distinction. We must be careful not to commit this error, more especially as it would be in contravention of the modern policy, which properly seeks to extend the rule of competency, rather than to multiply instances of exclusion. Now, by the long-established rules of evidence, all who have no interest in the subject-matter of a suit, or, having had such, are divested of it before being called to the book, are competent witnesses. In the present condition of the question with us, it may perhaps be profitable to glance at a few of such cases decided under this rule, as approach most nearly to that in hand. Among these are the following. A creditor who has assigned his interest in a fund is a competent witness to increase it: Heath v. Hall, 4 Taunt. 326. A bankrupt is a good witness to prove money lost at play by him, in an action brought by his assignee to recover it back, after releasing to the assignee all interest in the surplus : Carter v. Abbott, 1 Barn. & Cress. 444. A stockholder who has sold out or assigned his shares in order to become a witness, is admissible as such for the company : Stall v. Catskill, 18 Wend. 475; Smith v. Bank of Washington, 5 Serg. & Rawle, 322. A devisee having released his interest is competent to prove the validity of the will: Kerns v. Soxman, 16 Serg. & Rawle, 315 ; and so is a legatee : Vin. Abr. tit. Evidence, F. pl. 53; Newlin v. Newlin, 1 Serg. & Rawle, 275; Cornell v. Vanartsdalen, 4 Barr, 373. These cases are strictly analogous to the present, and the last is particularly valuable as a very recent decision, and since most of the cases on which the plaintiff in error relies were ruled. But the very point under examination has been more than once adjudicated in favour of the testimony. Thus in Boynton v. Turner, 13 Mass. Rep. 393, it was ruled that the son of an intestate who had released and transferred to the administrator all his interest in the fund, was a good witness. So in Woods v. Williams, 9 Johns. 123, the husband of an intestate was admitted to testify in an action brought by her administrator, after releasing to the plaintiff any sum which might be recovered, and the same point was similarly ruled in Jackson v. Brooks, 8 Wend. 426. These familiar authorities would seem to be decisive. But it is thought the rule recognised in Asay v. Hoover, 5 Barr, 37, is in conflict with them. This is a mistake. That was a feigned issue, in which all having a pecuniary interest in the fund were regarded as parties in fact, and the observations made in the opinion of the court are to be accepted with reference to the particular case. Thus viewed, there is nothing in them which militates against the decision of the court below ad-. mitting the witness. Nor does the fact that she assigned her interest in the fund sought to be recovered, to become a witness, or that the assignment may have been colourable, constitute a valid objection to her, for these are matters of which the court do not undertake to judge, except in case of parties to the record. In all other instances they go rather to the credit than the competency of the witness: Cornell v. Vanartsdalen, supra.

What has been said disposes of all the points raised on the argument in this court. It is, therefore, unnecessary to recur with more minuteness to the particular errors assigned.

Judgment affirmed.


text:
    Dialogue v. Hooven.
    Where a witness has made an entry of the delivery of goods in a hook, he may read the entry to the jury, with his evidence proving the delivery.
    In error from the District Court of Philadelphia.

      Jan. 26. Assumpsit against partners. On the trial before Sharswood, J., the plaintiff called a witness, who stated that the-goods were ordered sometimes by one and sometimes by another of the partners. The witness kept a book containing the entries, the amounts being taken from the captains of the boats (who were members of the firm, defendants) on which the lime was delivered. The entries were in this form : — “1889, April 25, George Dialogue & Co., (or J. and G. Dialogue,) per Captain H. Dialogue,- h
    Liberty, F., 1352 bushels slaked lime, loaded 17th and 18th inst.” After reading each entry, the witness stated to which of the defendants he had delivered the lime mentioned in the book, but he could not state who had ordered the particular parcels.
    A receipt to J. G. Dialogue having been produced by defendants, on cross-examination of this witness, by whom it was signed, the plaintiff under exception was permitted to ask why it was so written. The witness said because requested by the person paying the money,

      The permitting the entries to he read to the jury, and the answer to be given to the question above stated, were the errors assigned.

      Ingraham, for plaintiff in error.
    The book was not a book of original entries; there was no charge or heading: it was but an account of the witness. Such an account, being a mere memorandum, cannot be read to the jury : Juniata Bank v. Brown, 5 Serg. & Rawle, 226; Smith v. Brown, 12 Serg. & Rawle, 80. [Gibson, O. J. — It was admitted there that addition of the miller’s oath would have been sufficient.]

      Brooke, contra,
    citing Heart v. Hummell, 3 Barr, 414, was confined to the last point. On this he said there was a dispute as to the existence of a partnership, and this question was merely to show the name of the firm was given by the payer of the money.

      March 1.

         This exception was intended to relate to the proof of partnership ; hut that was left to the jury without exception.

   Burnside, J.

The plaintiff in error, who was defendant below, excepted to the book kept by Owen B. Evans, of the delivery of the lime. Evans was in the employ of Hooven, delivering and selling lime, and gave evidence that he sold the lime in question to John, George, and Henry Dialogue, for Hooven, in 1839; the lime was brought from the kilns of Hooven in Montgomery county, and delivered into the boats of the plaintiff in error at Willow street wharf; and proved the book to be the book kept by him of the original entries he made of the lime, as it was delivered -to the indiscriminate verbal orders of the Dialogues, and carried off in their boats. He testified that the quantity entered in the book was delivered. The counsel of the plaintiffs in error rely and insist that the case of Smith v. Lane, 12 Serg. & Rawle, 80, determines this question. There the original book of a miller, which contained an account of the delivery at the mill of wheat belonging to Smith, to be ground at the mill, and of the flour to certain wagoners, said to be in the employ of Lane, but which did not contain daily entries of the general transactions of the mill, nor of all the flour delivered to the wagoners of Lane, or to other persons, was not competent evidence for Smith in an action by Lane against Smith, to show the number of barrels of flour belonging to Smith delivered to Lane, it appearing that Lane generally sent orders for the flour, which had been burnt by the miller, the entries not having been always made at the time of delivery, and the wagoners to whom the flour was delivered not having been called or their absence accounted for. That bears no resemblance to the present case. Here Evans swears to the delivery of the lime, and of the regular entries of the quantities delivered. It is surely better evidence than if Hooven himself had kept the book and made the entries of the lime as delivered. No sound objection can be raised to the admission of the book in evidence: it was competent evidence.

There was another exception. The counsel of Iiooven having given evidence of partnership, and having proved that John and George Dialogue gave a note at one time for a portion of the lime,, for which the witness Evans gave a receipt for Hooven, and stated that all the receipts were given in the name of John and George ; that the orders were verbal; the plaintiff’s counsel then proposed to ask the witness, “ Why were the receipts drawn in this way ?” The defendant objected to the question, and insisted the witness should not answer unless a foundation were laid for impugning said receipts; but the court decided the question might be put. The witness answered, “Because he was requested so to do by the parties paying the money.”

This case shows that we have in Pennsylvania the glorious privilege of not paying our debts until the court in the last resort in this Commonwealth has decided against us.

Judgment affirmed.