author: Kennedy; J.

text:
    BAYARD against HAWK.

      A defendant obtained a rule of the court of Common Pleas, to shew cause why an appeal by the plaintiff from a judgment of a justice should not be quashed, during the pendency of this rule, the plaintiff entered a mle of reference, had arbitrators chosen,- who pnule a report ill favor of the plaintiff The judgment upon the award was held t<5 be erroneous, a”d it was reversed.
    No appeal lies from the judgment of a justice, entered upon an award of arbitratrators, fora sum less than twenty dollars; where the plaintiff’s claim, set out upon the record of the justice, does not exceed that sum.
    Error to Westmoreland county.
    This suit in which John Haip.k was plaintiff, and A. W. Bayard defendant below, was instituted before a justice of the peace, by agreement of the parlies. The entry of it on the justice’s docket was in the following words: uJohn Hawk v. A. W. Bayard. Amicable action by the parties, May 18th, 1820, arising from a book account, not exceeding 100 dollars.” The same day the parties take a rule to refer. June 15th referees report; and judgment was entered on the award of referees by way of non suit for costs. If further appeared from the return pf the justice, on the appeal taken by the plaintiff, that he applied to the justice, on the same day that he entered judgment, for a rehearing, of which notice was given to the defendant, who refused to agree to a rehearing of the cause; and on the 22nd of June, the plaintiff entered an appeal to the next court of Common Pleas, which was to commence in August 1830. Tlie defendant obtained a yule of the court upon the plaintiff, to shew cause why the appeal should not be quashed. During the pendency of this rule, the plaintiff had the cause referred t.o arbitrators, under the compulsory arbitration act, On the 11th of January 1881, the rule to shew cause why the appeal should not be quashed, was discharged by the court, $nd on the 17th of the same month, the arbitrators chosen under the rule of reference, filed their award in favor of the plaintiff, for the sum o.f fourteen dollars, with costs of suit.

      Armstrong for plainfiffin error,
    cited Act of 1810, sec 2; and S'oop v. Coates 12, Serg. 38S to shew, that the plaintiff’s demand if it be above twenty dollars, must be set out on the record of the justice.

      J. Y. Barkley, for defendant in error,
    contended, that the court below was satisfied by proof that the plaintiff’s demand did exeeed twenty dollars; and therefore the appeal was sustained.
   The opinion of the court was delivered by

Kennedy; J.

The error complained of in this case, is thatt.be court of Common Please refused to quash the appeal. According to the provisions of the third and fourth sections of the act of assembly giving jurisdiction to justices of the peace in cases arising out of contract, not exceeding one hundred dollars, neither party can tiompel the other to refer the cause to the decision of referees. It is only by the consent of both parties that it can be refered to - arbitrators, who after hearing the proofs and allegations of the parties, are required by the third section of the act, to make out their award and transmit it to the justice, who is directed to entef judgment for the sum awarded and costs “which judgment,” says the same section, “so obtained, when not exceeding twenty dollars, shall be final and conclusive to both plaintiff and defend~ ant, without further appeal;” the fourth section, which gives tho right of appeal, is also.in these words “either party having the right to appeal within twenty days after judgment being given, either by the justice alone or an award of referees, when such award shall exceed the sum of twenty dollars.” Hence it is manifest from the letter and phraseology of the act that in all cases where the sum in controversy exceeds five dollars and thirty-three cents, arid thri cause has been referred by the parlies to the decision of refc'rees, it is tho amount of the award, and not the amount of the srim in controversy, that settles the right of appeal from the judgment of the justice given on the award of the referees. If the amount of the award exceed twenty dollars, the right of appeal is clearly given to either party; otherwise it would seem it is not. I cannot pefeeive even any apparent hardship in this construction of the act? tvhiett goes to preclude the parties or either of them from the right of a trial by a jury afterwards; because it is the effect of theact of assembly upon their own agreement, to refer the final determination of all matters in controversy in the cause between them, to the judgment of referees chosen by them for that purpose. It is a part of their' agreement to refer the cause, that they will abide by the decision of the referees, and that their award shall be final and conclusive, without further appeal, if the amount of the award.exceed twenty dollars. Is it not just, as well as politic, that men Should be bound by their agreements? and especially too when they are made for the express purpose of putting an end to all further strife and controversy? This exposition of the act, I would have considered in accordance with the spirit of it, and the' intention of the legislature, were it not for the decision of this court, in the case-of Soop v. Coats 12 Serg & Rawle, 338, which decides, that the plaintiff is entitled to an appeal, wherever the debt sued for, and set forth on the docket of the justice, is reduced by the award more than twenty dollars; although the sum awarded; for which judgment is entered, may be less. This appears to me to be a very liberal construction of the act in favor of the right of appeal, and since it has been so settled and decided by this court, I do not wish to be understood, in any thing that I have said, as having a wish now to impugn or set aside the principle established in that case. In the case, however,under consideration, the amount of the plaintiff’s demand was not entered on the docket of the justice, .nor does it Appear from any thing that has been certified .or returned by the justice what the amount .of the plaintiff’s claim was. There is, therefore no ground furnished for saying* that the award of the fie'fdrees appointed before, the justice, which Was in favor of the defendant, generally, was in effect an award and judgment against the plaintiff, for a sum of money, exceeding twenty dollars. This case is analogous in every respect to’ M’Kim and Bryson, 2 Serg. & Rawle, 463. The appeal was not.only illegally taken by the plaintiff from the judgment of the justice on the award of the referees, but his codfse was no less so, after he got the cause before the court of Common Pleas; for after a rule had been obtained, and was still pending'against him, to shew cause why the appeal should not be quashed; in defiance of this rule, which in effect was an order of the cotfr't to stay all further' proceedings in the catise till it should be disposed of, he entered a rule of reference; under, which arbitrators were appointed, and tbe case heard., and decided by them, about the same time that the' court discharged the rule to shew cause. The /Whole proceeding in the Common Pleas was irregular; and the' award and judgment thereon must be reversed, and the appeal from the judgment of the justice quttáhed.

Judgment reversed,


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    HURST against CARLISLE.
    For battery, wounding or mayhem, or for an attempt to bommit any of them; die injured party may have'a remedy to recover damages; by action of trespass.
    Error to the Common Pleas of Erie county.
    This was an action of trespass by David Carlisle against Thos'i Hurst and others, to recover damages for an assault and for a battery committed upon bim. The court (Shippen, president,) was of opinion that the plaintiff was entitled to recover, and the -jury found accordingly.

      Riddle and Babbitt for plaintiff in error,
    Contended that the gist of the action of trespass was fo'i the ajiplication of force; if there be an injury to the feelings or sensibilities of the party, the damages ate consequentiál; and can only bé remedied by an action on the case.

      Galbreath for defendant in error;
    An assault béing an immediate violation of a personal fight, thé only remedy to redress the wrong is by trespass. Bul. N P. 15; 'Cro. Jas. 151.
   The opinion of the eourt was delivered by

Rogers, J.

This is a ease as plain on authority; as it is reasonable and just. For battery, wounding or mayhem, or for an attempt to commit any of these, (which in law is termed an assault,\ the injured party may have a remedy in damages, by action of trespass. Arch. 25. Even for a threat, or menace, to commit any of these injuries. Rey. 104. 2. Rol. 545, Nos. 25, 41, or to pull a man’s house down. Rey. 108, or the like. If any injury arise W the party from such threat or menace, the remedy, it seems, is also by action of trespass. Vide. Com. Dig. Battery D. and the authorities there cited;

Judgment affirmed;


text:
    GALLAGHER against MILLIGAN.
    Any person who, at the time of the commencement of a suit, is entitled to a portion of tile money sued for, however Lis interest may have been acquired, is liable to costs; and is thei'éfore incompetent to give evidence in the suit, although he may release his interest to the plaintiff on record.
    No declaration of a defendant will operate to avoid the statute of limitations, if it be accompanied with a denial of his liability to pay.
    Error to Allegheny county.
    This was an action of assumpsit brought by Samuel Milligan ¡against James Gallagher, for work and labor performed in 1808. Issues were joined upon the pleas of non assumpsit, and non as‘sumpsit infra sex annos. James Milligan was called as a Witness, and by his examination it appeared, that he was equally interested with his brother, the plaintiff, in the claim for which the suit was brought; and his testimony having been objected to, he executed a release of all his claim to the plaintiff; he was still objected to as a witness, because of his liability for costs; but the court overruled the objection, and sealed a bill of exceptions. To avoid thé operation of the statute of limitations, the plaintiff gave in evidence the declarations of the defendant, that if it could be made appear to him that he owed any thing, he would settle and pay it; but he always accompanied these declarations with the assertion that he owed nothing. Having been asked, if he was willing to swear that he did not make the bargain, he answered, that he would not swear so for all he was worth.
    The court was of opinion, and so instructed the jury, that th'e statute of limitations, under the evidence given, would not bar the plaintiff’s right to recover. To this opinion the defendant’s counsel excepted, and the court sealed a second bill of exceptions*

      Salden for plaintiff in error.

      W. Forward, contra.

   The opinion of the court was délivered hy

Rogers, J.

James Milligan-, a witness for plaintiff, haying testified that he expected to receive a part of the money for which the suit was brought, if recovered, the plaintiff’s counsel filed, hi's release. The witness was then asked the nature of the contract between him and his brother: to which he answered, he was to have half the amount; whereupon the defendant’s counsel objected to the examination on the ground of his liability for costs.

The competency of the witness depends on the question, whether such an interest was admitted, as makes him, in effect, a party to suit; for whether his name appears on the record or not is immaterial. In that event, his interest is such as disqualifies him from giving testimony; as he is liable for all costs due, or which may become due, in the suit. It is of no consequence how he becomes interested — whether by a moneyed consideration, or by services rendered, or' to be rendered in future. What matters it to the defendant how he makes himself a party to the controversy, whether as an agent, attorney or otherwise. I know of no case, certainly none has been cited, which would exempt an attorney or agent under such circumstances; nor should an exemption be claimed, under any principle of public policy. The defendant has a right to look to those who are beneficially interested in the suit. These agreements are of frequent occurrence in Pennsylvania, and it would seem to me to be not only unjust to the defendant, but an undue encouragement to such arrangements, to adopt a different rule. I consider that any person who, at the time of the commencement of the suit, is entitled to a portion of the money sued for, however his interest may have been acquired, is liable to costs, and therefore incompetent to testify.

But admitting that the witness was competent, was enough proved to take the case out of the act of limitations* James Milligan, after having testified, that the work for which the suit was brought, was done by his brother, further said, that he did not meet Gallagher from that time until suit was commenced; that Gallagher told him he had not been in the county since, that he had been at New- York, Lake Erie, Michigan and here: that he asked him what he was sued for; told him he was a boy at the time, that he had nothing to do with him; that he was going back to the place where his brother was, and if he owed him he would pay him. He also testified, that Gallagher, denied he had employed his brother, the plaintiff.

John Milligan testified that defendant told him, that if he could be made sensible that he had made the bargain, he would ■ pay the plaintiff, for doing the work. He then asked him, if he would be willing to swear he had made no such bargain; to which he replied, he would not swear so for all he was worth.

An acknowledgment of a debt, consistent with a promise to pay, takes a case out of the act of limitations. But here there was no such acknowledgment; and on the contrary, the defendant at all times denied he was ever indebted to the plaintiff. Gallagher denied, says the witness, that he ever employed his brother the plaintiff. Nor can the testimony of John Milligan be fairly construed into the acknowledgment of the debt, or a promise to pay. í(lí he could be made sensible that he had made the bargain, he would pay the plaintiff fordoing the work;” evidently contains the expression of an opinion by the defendant, that he was not, nor had he ever been indebted to the plaintiff. Neither would his unwillingness to swear to a fact from which the jury might infer either the indebtedness or the promise to pay. The witness had no right to make such a proposition to him, and a scrupulous person might be unwilling to swear either to the truth or falsehood of a fact, without any legitimate inference being drawn from his refusal.

It is not sufficient to take a case out of the act of .limitations, that the claim should be proved and acknowledged to have been originally just. The acknowledgment must go to the fact, that it is Still due. There were, no words or expressions of the defendant, from which the jury could safely infer a subsisting debt; or in truth, that any debt ever existed. We can perceive no good reason why words should be tortured from their obvious meaning, to itake a case out of the operation of a highly beneficial statute, a principal object of which is, to put an end to stale demands.

Judgment reversed and a venire de novo awardee].


author: Rogers, J,

text:
    OLIPHANT against SMITH.

      $¡xl action for a nuisance, created by the erection of a dam in a navigable river is local and cannot be sustained elsewhere than in the county where the dam is erected: unless in the case where the dam erected in one county injures the land of an individual in another, then the action may be maintained in either county.
    Writ of Error to the Common Pleas of Fayette county.
    This was an action brought by Oliphant and Duncan against Joseph Smith, for erecting a dam in the Youghiogheny river, by which the plaintiff’s boat was hindered from passing up the said river and was .sunk, whereby he sustained damage.' During the progress of the trial, the evidence given established the fact that the dam alleged to have been built and kept up by the defendant, was in the county of Westmoreland. Whereupon the defendant objected to the admission of any further testimony on the subject, on the ground that the action, was local, and could not be sustained in the county of Fayette. The court being of this opinion, sustained the objection, and sealed the bill of exception at the request <pf the plaintiff.

      N. Ewing for plaintiff in error.

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

Rogers, J,

The act of the 23d March 18Q3, authorizes per-, sons owning lands adjoining navigable streams of water, declared public highways, to erect dams for mills and other water works, and gives a remedy to the owner of any raft, boat or other vessel, which may be obstructed or suffer damage, or be delayed in their passage on such streams, The plaintiff complains that the defendant obstructed the navigation of the river Youghiogheny, so that he could not pass, &c. with the same ease as he had been accustomed to do before the erection; that he was stopped in ascending the river, and that in attémpting to pass, his boat was sunk; whereby he sustained damage to an amount exceeding fifty dollars. This I take to be a proceeding under that act, for unless the plaintiff chooses to avail himself of the remedy there given, he is without redress. Where a remedy is provided or duty enjoined, or any thing directed to be done by any act or acts of assembly, the direction of the act shall be strictly pursued. No penalty can be, inflicted, or any thing done agreeably to the provisions, of the common law, further than they shall be necessary for carrying the actinio effect; and this by the express words of the act of the 20th March, |§06; which unless it is applied to a case sp.ch as the present. would be a dead letter, on our statute books. That the remedy must be pursued ip the county where the dam is erected, which caused the injury, is too plain for argument. Where the damages, do not in the whole exceed the surn of fifty dollars, jurisdiction is given to any justice of the peace of the county in which the dam is erected; but if damages shall be alleged, to a greater amount, than fifty dollars, the same may be sued for and recovered in the court of Common Pleas of the county, wherein the said damages shall have been sustained. Purd Dig. 640.

But independent of the act of assembly the action is local. 0¶ piginally all actions Were tried in the proper counties in which they arose, pursuant to the maxim, vicini vicinorum facta presumunter scire. A change of terms produced a change of law; and here was introduced the maxim debitum et contractus sunt nullius; loci. Now all personal actions, as debt, detinue, assault, deceit, trover and conversion, account, &c. may be brought in any county and laid in any place. But all actions, real and mixed, as trespasses, guare clausum fregit, ejectment, waste, fyc. must be laid in the county where the lands lie; and if not so laid, it is cause of demurrer. Comyn, in his digest, page 252, note 5, lays down the rule to be that every action, founded upon a local thing shall be brought in the county, where the cause of action arises; for there it can be best, tried. Thus an action fora nuisance,in diverting the water of a navigable river is local. And in general, wherever ,a view may be neces-, sary, there the action must be brought in the county where the injury arises. In the language of Comyn, it is an action founded upon a local thing; and can be the better tried, because the witnesses Reside there, and the alleged nuisance may be inspected b.y the jury. It is a local action, because of the locality of the defendant’s possession within the body of the county. The only exception to the rule is, the erection óf a nuisance in one county, to the injury of lands in another. Then the action may be brought in either. 1 Bac. M. 56, 57, 58, and the authorities there cited. 3 Qom. Dig. 250, 251. Judgment affirmed.


author: Gibson, C. J.

text:
    GALLAGHER against NEAL.
    IN ERROR.
    The act of the 28th of March, 1814, against “any oncers taking greater Or óthff fees, &c., than are expressed and limited in the bill, being penal in its consequence musí be strictly construed, and therefore the ease of taking fees by a person out bf office-, for services rendered vVhile in office, is not within the act, and such person is not liable for taking such fees illegally.
    In this cause which Was brought up from the Common Pleas of Cumberland County by writ of error, a special verdict was found, which was in substance as follows: James Neal was sheriff of that county, and his office expired in October, 1825.- During the time he was in office, process of execution was executed by him in favor of Thomas Gallagher, and after his office expired he demanded and received from the said Thomas, (who had become liable to pay the costs of the said process,) a sum of money, as fees and costs, which was more than by law he was entitled to receive, by the sum of one dollar and seventy-five' cents. This suit Was brought to recover a penalty of fifty dollars for taking greater fees than is allowed by the act of assembly, for the execution of the said process; and the question submitted for the opinion of the court was, whether the defendant was liable under the act of the 28th of March, 1814, to the penalty for taking, after his office expired, such fees, for services rendered while he was in office. The court below gave judgment for the defendant.

      Gallagher and Alexander for the plaintiff in error
    referred to
      Share fy Anderson’s Executors, 7 Serg. 8,'Raiule, 93. 8 Serg. 'fy Rawle, 69. McNally’s Evidence, 485. Lyon’s Executors v. McManus, A Bin. 167. The Commonwealths. Wolf, 3 Serg. ■8r Rawle, 48. The Commomvealth s. West, 1 Rawle; 29. Bur-don’s Digest, 123.

      Benrose for the defendant in error cited 5 Wheaton',

      95. Meredith’s Adminsitrators s. Cist, 7 Serg. %■ Rawle, 185.
   Gibson, C. J.

delivered the Court’s opinion.

It was not till the year 1818 that the subject of fees received by-persons out of office attracted the notice of the legislature, as it Was not till then that a particular law was passed subjecting them to the tax that had before been laid On fees generally. These outstanding fees were then first discovered to be of such magnitude aS to require particular provision. Thus it would seem that in 1814 When the act was passed on which the question before us turns; the legislature had hot adverted to the fact, that retired or displaced officers have usually a large amount of fees to be collected for them by their Successors or á justice of the peace; and having been suffered to pá'ss without provision in a law imposing a táx on particular officers and by a legislature presumed to be as careful of the interests of the public as of individuals, it is fair to infer that these fees were not intended to be embraced by any general regulation on the subject. This inference acquires force also from a provision in this same act of 1814, by which the officer was commanded to set up in a conspicuous part of his office, as a further guard against extortions, a table of the fees demandablé by him; Which could not be done by one who keeps no office; and in all other respects, both the spirit and the letter which speaks of officers ánd not persons throughout, is inapplicable to the act of one who was not an- officer at the time. Taking by ah officer is certainly not predicable of the act of one who merely had been án officer; and there is good reason, beside, why it should not be subjected to the same penalty. The facility which office affords to Oppression, is too apparent to require remark, especially an executive office the power of which extends to the seizure of person and property. The exaction of dues by means of such a power may require it to be guarded by penalties that are wholly unnecessary in the enforcement of a demand that has Been reduced to the ordinary condition of a simple contract debt recoverable before a justice of the peace. Indeed if a claimant of the latter class were exposed to the panalty at all, he would incur it by recovering, even through the process of the law, more than was justly demand-able, the words of the act being sufficiently comprehensive to embrace every sort of taking. These considerations in connection with the phraseology of the enacting clause, lead to an inference that the penalty was hot provided for a caáe like the present. Undoubtedly it does not stand in the same degree of mischief as a taking by virtue of the power and influence of oifiee; and had there been an intent to decláre it criminal, it is reasonable to suppose, it would have been subjected to a milder punishment. But whatever we might suspect the design of the legislature to have been, the law, being penal in its consequents, must be strictly construed, and the case is1, therefore not within its purview.

Judgment aifirmed.


text:
    MOTHLAND against WIREMAN, ADMINISTRATOR OF THORNBURG.
    IN ERROR.
    The Orphans’ Court may direct an issue to ascertain specific facts', ih the usual shape of a wager; but it is incompetent to delegate its jurisdiction in matters of account depending on both fact and law.
    An administrator is not chargeable with assets of the intestate in another state, of which he may have obtained possession.
    Administration confers upon the administrator rights, and creates liabilities co-exten* sive only with the jurisdiction which confers it.
    Where an issue was directed by the Orphans’ Court “to try and determine with what amount an administrator is chargeable” and stipulating that under such issue “every legal claim against the said administrator shall he tried and detérmin. ed, and judgment thereon to be taken in the Orphans’ Court for the sum with which he is to be charged as administrator,” such issue was framed to determine, not the validity of particular items, but the aggregate amount of the debts properly chargeable, and the jury under such issue should find the exact sUm. It is error therefore in such case to instruct the jury to find a general verdict forthe defendant if they should find that the plaintiff had hot sustained the items disputed, if there were other items which were not in dispute, and admitted to be properly chargeable.
    Error to the Court of Common Pleas of Adams county.
    The Orphans’ Court of that county had directed an issue to the Common Pleas “to try and determine with what amount the said Isaac Wierman is chargeable as administrator of the estate of Thomas Thornburg, deceased;” the issue to “be joined on a declaration for money had and received by the defendant as administrator, and the plea of not guilty; under which every legal claim against the said administrator shall he tried and determined and judgment thereon to be taken in the Orphans’ Court for the sum with which he is to be charged as administrator.”
    On the trial of this issue, the plaintiff gave in evidence the administration account which the defendant had presented to the Orphans’ Court for confirmation, on which the issue was directed, and in which he had charged himself with items amounting to twelve hundred and thirty-nine dollars, and jwenty-seven cent's; he also gavé evidence to prove the receipt of assets in the state of Maryland by B. Blackford who was his co-administrator, with which the plaintiff sought to charge the defendants. It is not necessary, from the view taken of the case by the Supreme' Court, to state the various exceptions taken on the trial. The' Court charged the jury that if there were no additional sum ivithc which the defendant was chargeable, beyond what he charged1 himself with in his account, the issue should be found in his favor. The charge was excepted to, and a general verdict passed for the defendant. g
    The cause was argued by Penrose (with whom was Fuller) for the plaintiff in error, who referred to Swearingen v. Pendleton, 4 Serg. fy Rawle, 389. 3 Slarkie E, 1728. And by

      Stevens and Carothers for the defendant in error.
    They cited Cox. Big. lip. 1. 15p. 58. 1 CrancA, 259. 9 Wheaton, 565* 3 Day, 303. Oreame v. Harris, i Dali. 456. M’ Culloch v.Young, 4 Dali. 292.

   The Court’s opinion was delivered by

Gibson, C. J.

The defendant to whom with others administration was granted by the Register of Mams county, where the intestate resided, having exhibited a separate administration account,the plaintiff claimed a right to charge him with a moiety of profits derived from the Catoctin Iron Works, and remaining in the1 hands of Mr. Blackford, the surviving partner of the intestate and one of his administrators. These works which are situate in Maryland, had been leased to the decedent and Mr. Blackford who1 continued the business for joint account, after the decedents death, till the end of the term; at the expiration of which he removed to-Virginia, where he has since resided. The Orphans’ Court, before whom the account was brought for confirmation, directed an issue to the Common Pleas, in which the plaintiff was ordered to-declare for money had and received, and the defendant to plead' not guilty, “to try and determine with what amount the said Isaac Wireman is chargeable as administrator of said estate.” Such a plea to such a declaration, is the least remarkable thing in the concoction of this singular issue. A transfer of half the account to the Common Pleas, was a transfer of half the jurisdiction-of the Orphans’ Court, on the principle of which, the issue might have been so framed as to transfer the whole. A delegation of power which the Orphans’ Court is not competent to make, or the" Common Pleas to receive. In the trial of the issue, the jury were-burdened with accounts which were proper for adjustment by no" one but an auditor; and in addition, the cause comes here not by an appeal on the merits, but by a writ of error on bills of exceptions. The Orphans’ Court may undoubtedly direct an issue to as¡certain specific facts in the usual shape of a wager; but we are bound to declare it incompetent to delegate its jurisdiction in matters of account depending on both fact and law. The court below, therefore ought-to have struck out the issue; but as a different course was pursued, it was necessary to dispose of the errors alleged to have been committed at the trial. These, all but one which shall be separately considered, relate to the particulars of the charge, without regard to a principle which lies at the bottom of the whole and excludes it from the account as a subject that appertains to another jurisdiction.

That the liability of administrators to account, is commensurate with the jurisdiction of him from whom they have received their authority, whether Ordinary, Surrogate, or Register, andthatthey can act officially only in things committed to them, is a common principle of general jurisprudence. In the land of our forefathers this ¡officer succeeded to the powers of the King, who, as the general trustee of the kingdom, was entitled to the effects of a decedent in order to apply them to his burial, payment of his debts; and maintenance of his family — a trust which, in exclusion of foreign interference, is vested in some particular branch of every government, being indispensable to the protection of the domestic creditors. In England it is committed to officers whose jurisdiction is local, so that where the effects are within two or mqrp pf these jurisdictions, administration is granted by the officer of neither, but by a common superior whose power extefids pyer the whole and to whom the administrator is accountable for the use of it. An interference under foreign authority, has never been tolerated, there or elsewhere, except in our own state as a matter of courtesy. Nowhere else is an action maintained on a title derived through a foreign grant of administration, and for the plain reason that a recovery would withdraw the effects from the operation of the laws to which they are properly subject, and commit them to the administration of those who are in nowise amenable to those laws, so that instead of being protected in their rights by the power of their own government, the resident creditors would be sent abroad to ass.ert their claims in foreign courts at the risk of having them determined by laws less favourable. It is on the same principle of domestic protection, that an attachment pfa debtor’s effects is sustained by the American courts, against a prior assignment under a foreign commission of bankruptcy. The succession is undoubtedly regulated by the law of the domicil,. but administration always by the lex loci rti sitce. And this distinction is of infinite y^lue ito the creditor, whose action might be barred in a foreign court by the lapse of a period that would be insufficient to bar- it at home, or whose demand might, in the event of a deficiency, be subject-, ed to a less beneficial rule in the order of payment, It is, therefore indispensable, that the effects of a decedent be collected and administered under the control of the government, within whose jurisdiction they were at the time of his death. How far our own injudicious comity will necessarily be restrained by the act which lays a duty on the effects where the succession devolvés on collaterals, it is at present unnecessary to determine. In a case where the assets are known to be subject to the duty, it might be enforced by ordering the money to be brought into court at the return of the execution; still that precaution would not reach the case of a voluntary payment, and in any event, the security of the administrator’s, oath, required by the act, would not be had. But that the effects are to be collected and administered by local autho.rity, is a principle not only of British, but of American law. In Topham v. Chapman, 1 Rep. Const. Court. S. C. 292, it was much debated whether they should not also be distributed by the .same authority though according to the law of the domicil, but that the collection and payment of the debts might be by any other, authority was never supposed. The same question was debated in Harvey v. Richards, 1 Mason, 485; and in Davis v. Head, 1 Pickering, 128, it was held that an administrator here, though admitted, to be but auxiliary to the administrator, at the place where the decedent was domiciled, is bound to remit the assets to be administered there only in case there are no domestic claimants in the. character of creditors, legatees, or next of kin: but that where, these appear, the assets are to be retained for administration according to our own laws,, permitting the foreign creditors to participate in proportion to their debts, respect being had to the aggregate of the estate and of thq debts whether foreign or domestic. If then the grant of administration in Pennsylvania, gave the defendant no title to the assets in Maryland, what obligation does it, impose on him to account for them? It is. said that though he be. not chargeable for negligence in not having received them, yet that being jointly liable with the other administrators by force of their bond to the Register, and one of them a? surviving partner of the decedent, having the effects in his hands, the defendant, too, is to be considered as in actual possession, and therefore bound on the supposed authority of Swearingen v. Pendleton, 4 Serg. Rawle, 389, to account before the Orphans’ Court. I am not going to'admjt that an administrator though virtually liable for the, defaults of his fellows, is chargeable with their responsibilities, in the settlement of a separate account. But granting the assets, to have actually come to his hands, I am unable to see why he should account for them here- His receipt of them, being in derogation of the rights of the foreign administrator, would subject him to an action in which his character,of administrator would not ayail him: and to compel him to respond to the foreign adminisIrator and the creditors too, would subject him, not only to a .double liability, but to be treated with greater rigour than an exe-; .cutor de son tort, who is entitled to an allowance for proper pay-; ¿ments, whereas, for payments proper, according to ouk laws, the .defendant would not be allowed in an action against him, unless they happened to consist also with the laws of Maryland. To ad-t minister an estate in part according to the laws of one state, and jn part according to the laws of another, would, were it even practicable, lead to endless confusion. But putting the embarrassment to which that would expose the administrator out of view, the ab-. Auction .of the effects in contravention of the laws of a sister state, would he such a manifest usurpation of right, as to forbid the exercise of a jurisdiction thus acquired The principle of Swearingen v. Pendleton has been misapprehended. The point decided was that an action may be brought against an executor-any where, just as the same point was decided in Dowdales’ case, 6 Rep. 42. It is proper to remark that in both these cases the action was against an executor whose title, being under the will and not a local grant of administration, extended to the assets wherever found. Indeed there would be a failure of justice if' even an administrator could elude the creditors by fleeing to a for-, eign state. Of the difference between an action to enforce a demand according to the laws of the country from which he has’ withdrawn, and the settlement of an administration account according to the laws of a different country, it is scarce necessary to speak. Except as regards the statute of limitations, the creditor Would in the one case have nothing to do with the law of the former, while in the other, he would be bound by it even as to the order of payment of the debts. A distinct ground taken in the argument is, that the administration bond prescribed by our act of Assembly binds the administrator to account for “all and singular, the goods, chattels and credits which have come to his hands, possession or knowledge.5’ But the argument proves too much, as it would equally subject to his power, without possession had, and bind him to account for, all the effects that had come to his knowledge wherever situate. Our act is, however, a transcript of the British Statute which has no such operation on assets in Ireland though that kingdom was always politically connected with England by ties as intimate as those which connect the states of our Union. The legislature intended to usurp no jurisdictiqn hut simply to make the effect of the bond co-extensive with the limits of its own authority. But the doctrine nqw asserted is not new evep here, being the foundation of the judgment in Brodie v. Bickley, 2 Rawle, 41. In Massachusetts it was recognized in the Selectmen of Boston v. Baylston, 2 Mass. 384, and Dawes v. Baylston, 9 Mass 347. As then all evidence of the charge ought to have been excluded, errors in respect of the particular competency of certain parts of it, if such there were, would be immaterial; and this relieves us from a consideration of any point made here but one, and that is to be disposed of in a few words. The issue was framed to determine, not the validity of particular items, but .the aggregate amount of the debts properly chargeable; and to this end it was the business of the jury to find the exact sum. The Judge however was of opinion that the issue embraced nothing but the disputed items, and directed a general verdict for the defendant, which, if suffered to stand, would exclude a large sum admitted to be properly chargeable. For this reason the judgment is not sustained. Jud gment rev ersed.


author: Kennedy, J.

text:
    BREDIN against NEAL.
    IN ERROR.
    Where a testator was surety for one to whom he bequeathed a legacy, and charged it upon land, and judgment was recovered for the debt, and upon a sale of the land that judgment was paid out of the land amounting to more than the legacy, it was held that the assigpee of the legacy \Vas entitled to be paid no part of it, the debt, independent of the statute of defalcation, being in equity, a lien upon the interest of the legatee in the land created by the legacy.
    Error to the Court of Common Pleas of Cumberland county.
    It was an action by James Neal the defendant in error against James Bredin the plaintiff in error, founded on the following agreement or stipulation:
    Copy of the agreement or stipulation on which the suit is founded;
    “Philip Weaver & j
    Margaret Moor | Legacy under the will of David Smith, vs. )• deceased payable out of the land sold
    The Executors of | by Sheriff Neal to. James Bredin.

    David Smith. J
    (21st February, 1825.)
    “Received of James Neal, sheriff, the sum of $453 08 on account of the above legacy, being the dividend coming to the plaintiff out of the sale of the real estate, the same to be refunded in case it is improperly received by me. James Bedin.
    $453 08
    In this action the following facts were agreed by the parties as a special verdict.
    The plaintiff as sheriff of Cumberland county, by virtue of sundry writs duly and regularly issued out of that court, sold to the defendant, a tract of land in North Middleton township, for the sum of $6600. The said tract of land was taken in execution and sóidas the estate of David Smith, deceased, and was sold to defendant 20th July, 1824. The said David Smithy as whose estate the said tract of land was levied and sold, by his last will and testament-duly executed and proved, August 1818, devised the said tract of land to his son Michael Smith, and charged it with the payment of sundry legacies to his (testator’s) other children.
    At the time of the sale by the plaintiff to the defendant as aforesaid, there were sundry judgments remaining due against the estate’ of David Smith deceased, amounting to $2590 97. The sheriff and Commissioners’ costs for making said sale, amounted to $28 34, which being deducted from the amount of the sale, left $4040 60 to1 be appropriated and distributed joro rata, to and amongst the legatees of the said David Smith deceased, which legacies remained unsatisfied, and amounted to $8896 41, and were payable in the proportions stated in the order and decree of the court hereafter' mentioned.
    Included in the judgments obtained against the estate of the’ said David Smith, deceased, was one in favor of James Giffin, for’ $8678 19, which Was obtained for a debt against Philip Weaver, husband oí Margaret Weaver, one of the legatees under the last will- and testament of the said David Smith deceased for the payment of which the said David was only security.
    After the death of the said David Smith,- to wit, on the 5th February, 1825, the said Philip Weaver for a valuable consideration, sold, assigned, and transferred the foregoing legacy, payable to his wife Margaret, under the will of the said David Smith, to the defendant James Predin,

    In consequence of a rule upon the sheriff to bring the money arising from the sale, into the Court of Common Pleas for distribution, the Court after argument, ordered and decreed the money arising from the sale to he paid and distributed in the manner and proportions, set out in their decree.
    The money for which this suit is brought, is part of the purchase money for said tract of land, and was and is retained by the defendant James Predin by virtue of the assignment from the said P. Weaver, in right of his wife, to him, and is the same money mentioned in the note in writing set out in the plaintiff’s statement in this cause.
    The plaintiff claims the amount mentioned in the statement filed with interest as stated therein.
    On the 6th November 1821, there was an assignment by Philip Weaver and wife to James Predin of the first instalment due- on the legacy.

      All questions as to the admissibility as well as to the legal effect of the matter contained in the statement to be determined by the court.
    . Judgment to be entered as the opinion of the court may be on the facts herein before and above mentioned, with leave to either par-' ty to take out a writ of error.
    The decree of the Court of Common Pleas referred to in thiif special verdict was at follows:
    , 9th Septembers 1824, money considered in Court so far as to eriáble the court to order the distribution.
    It was moved on part of some of the legatees of David Smithy to have the judgment of James Giffin against Philip Weaver •and David Smith satisfied out of the amount which would be due to him or to his wife, who was one of the daughters of David Smith, who was only surety for Philip Weaver. The facts agree¿bly to statement filed, were given in evidence.
    Whereupon the court was satisfied that said David Smith was only surety in the bond on which the said judgment was entered.
    The money for distribution being raised out of the estate of David Smith and Philip Weaver, (or his assignee who stands in the same situation as the assignor) claiming a portion of the said sum, it is right that the judgment should be paid out of that portion of the money that belongs to the principal,- ánd not out of the general fund raised out of the estate of the surety. The annexed statement being made according to the principle stated, the Court orders and decrees “that the said sum of money be appropriated and paid by the sheriff accordingly. To this opinion the counsel for James Bredin, assignor or purchaser, and on behalf of Mrs. Weaver objects and prays the court to file the same, which is done accordingly.
    The dividend on account of Margaret Weaver’s legacy, out of the proceeds of the sale of her father’s real estate after the payment of all debts amounted to the sum of four hundred and fifty-six dollars and twenty-four cents.
    The judgment of James Giffin against Philip Weaver and David Smith, which was thus decreed to be paid was entered on the' day of 18 and was out of the judgments included" in the sum of $2590 97, which were a change upon the estate of the said David Smith:

    The Court gave judgment on the verdict for the plaintiff.
    Error was now assigned that the Court had given judgment for the whole amount of the plaintiff’s claim. The defendant ought to have been allowed for the first instalment of the legacy assigned to him by Philip Weaver on the 6th of November A. D. 1821.

      Penrose and Williamson for the Plaintiff in error
    referred to
      5 John. ch. E. 52. Simson v- Hart, 14 John. Eep. 63. Commonwealth v. Jones, 3 Serg. fy Rawle, 167. Galbreath v. Black, 4 Serg. £? Rawle, 207. Gourdon v. Insurance Co. 3 Yeates, 327. Rousset v. Insurance Co. 1 Bin. 430. Mann v. JDungan, 11 Serg. 4’ Rawle, 75. 6 Serg. and Rawle, 466. Baughman for usé v- Divler, 3 Yeates, 9. Fo/te v. Barnet, 1 Binn. 358. 15 Serg. 4' Rawle, 63.

      Car other St, contra.

   The opinion of the Court was delivered by

Kennedy, J.

The principles laid down by this court in the Cases, Frants v. Brown, 17 Serg. & Rawle, 287, and Frantz v. Brown 1 Penn. Rep. 257, rule and affirm the judgment of the court below in the case before the court. In the cases cited, which were actions of debt upon bonds at the suit of an assignee it was held to be a good defence, that the obligor, before he knew of the assignment and before the bonds became payable, had become bound as surety for the obligee in sums exceeding the amount of the bonds and had been compelled to pay them. The legacy in the present case* which was coming to Philip Weaver in right of his wife, and which he assigned to the plaintiff in error, was charged upon the land of the testator, which after his death was taken in execution and sold for the payment of his debts and for a debt of Weaver the assignor for which the testator was bound as his surety. This debt as well as the proper debts of the testator were also all liens Upon the land, and to be paid out of the monej^s arising from the sale Of it before the legacy. The debt of Weaver for which the testator was surety, was paid out of the same fund upon which the legacy was charged, and took up considerably more of this fund than the legacy which was coming to Weaver, and had been assigned by him to the plaintiff in error. Now nothing can be more clear, than that Weaver cannot have his debt paid for him out of the land and his legacy too. He could not properly claim both. To entitle himself to be paid the legacy out of the land it was incumbent upon him to discharge it of his debt. Thus he failed to do, and the debt has been paid out of the moneys arising from the sale, and he stands indebted to the estate nearly two hundred dollars beyond the amount of the legacy. This plaintiff in error can be in no better situation than Weaver himself. He took the assignment of the legacy subject to every equity on the part of the testator’s estate, and of those interested in it. It was not in the power of Weaver to assign a right or benefit to the plaintiff in error, which he had no colour of claim to himself. If Weaver or the plaintiff in error had brought suit for this legacy, as early as possible, and prosecuted it to judgment, the only judgment that could have been given would have been to have the legacy levied out of the land* Suppose then a sale of the land had been made to satisfy the legacy, the debt of Weaver, for which the testator5 had bound himself, was a lien upon the land prior in date to the legacy, and must have been paid first, and in justice, if Weaver had any interest or claim in the land, as the debt was his, and not that of the testator, that interest ought first to be applied to the payment of the debt; and the debt being considerably more than the amount of the legacy, which was his interest in the land, Would have absorbed the whole of it; so that upon no principle of law, equity or justice, could he claim any portion of the money arising from the sale of the land. Independent of our statute of defalcation, I consider the debt of Weaver in equity, as a lien upon the interest of Weaver in the land, that is, the legacy; that it was pledged for the payment of the debt so far as it went, because the legacy could only come out of the land; it was as it were, so much of the land, and the debt was a lien upon the land; and has been paid out of it.

. Judgment affirmed.


author: Kennedy, J

text:
    NICHOLS and another against RUMMEL and WIFE.
    in error.
    One of the heirs of a decedent, who died intestate, petitioned the Orphans’ Court for aninquest on his real estate, describing it as ‘«containing two hundred and twenty seven acres more or less with a grist mill, and several other buildings thereon erected,” upon the writ issued thereon the inquest found that it could not be divided, sj)d valued the same at thirty four dollars and seventy-five cents per acre, “amounting in the whole to seven thousand eight hundred and eighty eight dollars twenty-five cepts,” which was confirmed by the court, and another heir took the same and entered into a recognizance to the heirs. Suit was brought upon this recognizance by one of them, in which it was admitted that there was a de- . -ficiency of twenty acres and sixty-three perches, ani^ that it had been agreed by some of the parties, riot including the plaintiff, at the time of the inquisition, that the land should be surveyed before the return and acceptance by the heir; but that this was not done. Held, that the defendant was not entitled to any de- ■ duction frotp the recognizarice on account of this deficiency. By the decree of the Orphans’ Court, confirming the land to the heir, he became invested with the title to it, ánd the whole proceeding, which before was progressive and executory, was thereby closed and consummated.
    Error to the Common Pleas of Franklin, county,
    The case below was at the suit of John Hummel and Hetty his wife late Hetty Nichols against Mathias Nichols and Henry Funk, with notice to John Singer, terre tenant, upon a recognizance in the Orphans’ Court of Franklin County, in which the following special verdict was found by the jury:
    “The defendants entered into the recognizance in the Orphans’ Court, on which this suit is brought according to the petition, inquisition and record. That all the money has been paid oh said recognizance, except fifty one dollars, nineteen and a half cents, on account of an allege'd deficiency of the land. That the real quantity of the said land is two hundred and six acres, and ninety-seven perches, and there is a deficiency of twenty acres and sixty-three perches,' of said land; and that it was agreed by some .of the parties, not including the plaintiff, at the time of the inquisition, that the land should be surveyed before the return and acceptance of the land; which was not done; and that no survey had been before made.
    If the court shall be of opinion that the defendant is entitled to a credit for the deficiency, then we find for the defendants; but if the- court shall b.e of opinion that the defendants are not entitled to such credit, then we find for plaintiffs fifty-one dollars nineteen and a half cents interest from 26th December, 1826.”
    By the proceedings in the Orphans’ Court, made part of this verdict, it appeared that John Nichols one of the sons, and heirs of William Nichols, deceased, had presented to that court a petition for an inqnest on the real estate of the decedent, in which he deseribed that estate, as containing “two hundred and twenty-seven acres more or less, with a grist mill and several other buildings thereon erected.”' It was not described in the inquisition in any way but by a reference to the writ, which pursued the petition; and the inquest found that it could not be divided, and therefore “valued and appraised the same undivided, at the sum of thirty-four dollars and seventy-five cents per acre, amounting in the whole to seven thousand eight hundred and eighty-eight dollars, and twenty-five cents.” Mathias Nichols the plaintiff in error, took the real estate at the appraisement, and entered into the recognizance for the purchase money, which was the foundation of this suit. The court of Common Pleas gave judgment on the Verdict for the plaintiffs, and in this error was assigned here.

      Findlay and MJ Culloh for the plaintiff in error.
    As the plaintiff, below had received his full share and proportion of the estate, he, under the act of 1794, was barred. There is no difference between a recognizance taken in the Orphans’ Court to secure to heirs, their proportions of the value of real estate, taken by one of them, and a bond or mortgage given for the same. The recognizance forms no part of the decree of the Court. The case was not one of a contract executed but executory. Taking the recognizance does not close the contract: until the money is paid, which it is taken to secure, it is in fieri, and is subject to the equitable defence which existed here. Bailey v. Snyder, 13 Serg. 8; JR atole, 160.
    The Court declined hearing Denny and Crawford of counsel for the defendant in error.
   The opinion of the court was delivered by

Kennedy, J

In the case of Hagerty v. Fager, for the use of Wilson, decided by this court at the last Sunbury Term, 2 Penn. Rep. 533, in an action of debt brought upon a bond given for part of the purchase money of a tract of land, in pursuance of articles of agreement which’ had been made between the parties for the sale of a tract of land described as containing one hundred and seventy-one acres, for which a certain sum per acre was to be paid, bonds to be given for the paymentofthe aggregate in annual instalments, and at the same time a deed of conveyance to be executed by the vendor to the vendee, and without any survey of the land being made, the parties afterwards met, when the purchaser gave his bonds to the seller for the payment of the purchase money, the amount of which was fixed according to the rate per acre, and the estimated quantity mentioned int he articles of agreement, and a deed of conveyance, describing the land as containing one hundred and seventy one acres, made by the vendor and accepted by the vendee; it was held, that the giving of the bonds and the acceptance of the deed of conveyance, were a consummation of the contract, and a discharge of the articles of agreement; and that the parties were thereby concluded; so that the defendant in the court below could not claim a deduction from his bond, on account of eleven acres deficiency in the land, which had been ascertained by a survey made sometime after the giving of-the bonds, and the acceptance of the deed of conveyance. That the giving and acceptance of the bonds and the deed by the parties, might fairly be considered per se, evidence of an agreement made between them to waive the stipulation contained in' the articles of agreement to pay by the acre, and instead thereof to make the estimated quantity the basis of their settlement, and final arrangement, and that each had agreed to take his chance, let the land contain more or less. . -

This principle is not only sustained by the decision in Hagerty and Fagen, and the authorities there referred to, but also by considerations of expediency, and sound policy, which require that there should be an end to litigation, after contracts have been closed, and fully executed, and that they shall not be ripped open again at the pleasure of either party, and be-made the subject of strife between them.

This rule, that the giving and accepting the bonds and the deed of conveyance, concludes the parties, is applicable.to the case now before the court and decisive of it.

Mathias Nichols was well acquainted with the metes and bounds of the land, it having been the seat of the residence of his father and family, including himself; and in the petition to the Orphans’ Court for a partition or valuation of it, presented by his brother John, it was described as containing two hundred and twenty-seven acres more or less, with a messuage, grist-mill, and several other buildings thereon. The inquest, in their report, after stating that the land could not be parted and- divided, &c. say, that they “have valued and appraised the same undivided, at'the sum of thirty-four dollars and seventy-five cents per acre, amounting in the whole to seven thousand eight hundred and eighty-eight dollars and twenty five1 cents,”-which was approved of by the Orphans’Court on the26th of December, 1828; the month following the date of the inquisition. At this time Mathias Nichols appeared in the same conrt and made his election to take the land at this valuation, and offered Henry Funk, the other plaintiff in error-as his security. Thecourt approved of the surety offered and decreed the land to Mathias Nichols, who thereupon entered into the recognizance upon Which this suit is founded, with Henry Funk as his surety in the sum of seven thousand eight hundred and twenty-eight dollars, and twenty-five cents, the precise amount of the valuation, after deducting the costs, conditioned for the payment of the interest annually on one third thereof tp the widow during her natural life, and to each of the other heirs of the intestate, his or her one ninth part and proper proportion of the valuation after deducting the costs. Although it is reasonable to suppose, that the inquest may have made the number two hundred and twenty-seven acres, that is, the estimated quantity, in part the basis of their valuation, yet it cannot be supposed that they overlooked the water power, and the improvments on the land, consisting of a dwelling house, grist-mill, and other buildings, which in some instances might be the most valuable part of the whole. They, no doubt, looking at all these things, considered the whole worth, on an average, thirty four dollars and seventy-five cents per acre. With all these advantages and improvements upon one hundred acres only, it is impossible to say what the inquest might have judged the land worth per acre. They might have thought it worth seventy-eight dollars per acre: or if there had been three hundred acres of it, they might have fixed the average price per acre, at twenty-six dollars gnd thirty cents, which would not have varied the result materially from the aggregate valuation set upon the whole by them. In short, it is impossible to determine from their report, what proportion of the seven thousand eight hundred and eighty-eight dollars and twenty-five cents, was allowed by them on account of the water power and the improvements, and how much of it again for and in respect of the quantity of land and its quality. The inquest, it is clear, never intendedjjy th eir report, that their valuation should be graduated, or made a measure for the valuation of any greater, or less number of acres, within the same metes and bounds to be ascertained by a survey to be subsequently made of the land, because they have made no provision for a survey to be made, but on the contrary, have fixed the whole value by the estimated quantity.

It however appears, that at the time of taking the inquisition, the plaintiff in error Mathias-Nichols, and some of the other heirs, but Hetty, the wife of the defendant in error was not one of them, agreed that a survey should be made of the land beforethe return of and acceptance of it. If this had been done and the deficiency of' twenty acres had been ascertained, the inquest might have charged and regulated the valuation, so as fairly in their judgment to have met it. But instead of any such survey being made, a return of the inquisition took place without it. It was approved of by the court, and Mathias Nichols agreed to, and did take the land at the valuation reported upon the estimated quantity. And to pay this sum for it, he gave his recognizance with surety. No, objection appears to have been made to his doing so, by any of the other heirs. Finally, the land is decreed to him by the Orphans’ Court. Thus he became invested with the title to it; and the whole proceeding which before was progressive and of an ex-ecutory character, was closed and consummated. From all these things having been done as they were, is it not fairly, nay necessarily to be inferred, in the absence of all testimony to the Contrary, that the parties finally agreed to settle and close the matter upon the basis of the valuation reported by the inquest and the estimated quantity, and to take their .chance if it be more or less? If this were not so, why did the other heirs let Mathias Nicholas take the land and give his recognizance for theamountof the valuation reported by the inquest only? Because if the land upon a survey being made of it, had been found to contain more than the two hundred and twenty-seVen acres, they had no security, for the surplus by the recognizance, or any other agreement of Mathicts or his surety. Beside, by the decree of the Orphans’ Court, granting the land to Mathias, he became invested with, the title to it, and was put into the possession of it; and although he might have surveyed it, and if, he found it contained more, have concealed it, yet the others had no right to make a survey, for they would have been trespassers if they had attempted to enter upon the land for that purpose without his consent. It is unreasonable then to suppose, or to presume, that it could ever have been intended to give to Mathias all these advantages, to put every thing in his power without any risk whatever on his part. I consider him fairly bound to pay according to the terms of his recognizance, and that the judgment of the court below ^ ought to be affirmed. ■

Judgment affirmed.


author: Huston, J.

text:
    IN THE MATTER of the appropriation of the money arising from the sale of the real estate of JOHN GOSWILER.
    Whenever by a rule of court, or an act of the legislature, a given number of days are allowed to do an act, or it is said an act muy be done within a given number of days, the day in which the rule is taken, or the decision made is excluded, fcrtd if one or more Sundays occur within the time, they are counted, unless the last day falls on Sunday, in which case the act may be done on the next day. So where a decree, under the act of the 16th of April, 1827, relative to the distribu» tion of money arising from sheriff and coroner’s sales, was made on the 12th of April, and an appeal was entered on the 3d of May, the 2d being Sunday, the appeal is in time.
    A, on the 30th of November, 1820, obtained judgment against P. drawer, and G. indorser, on which fi. fa. issued to August term, 1821, on the 29th of July, 1822, P. obtained a rule to show cause why judgment should not be opened as to him, and proceedings stayed in the mean time; on the 17th of February, 1827, this rule was discharged; to April terih, 1827, fi. fa. issued, and was levied.on a house and lot of P.; on the 17th November, 1828, P. gave evidence to the Court of Common Pleas, that he had satisfied the judgment to1 A, under an arrangement, by which the judgment against G. should stand revived for his use, and that the judgment was for the proper debt of G., and P. was surety only, and the court vacated the levy on P’s Jot, and directed the original judgment to stand revived for the use of P. Before this, several judgments .had been obtained for others against G.
    On the 9th of January, 1830, the real estate of G. was sold and the proceeds brought into court for appropriation.

      Held: That P. was not entitled to be substituted as surety', to the injury of other judgment creditors, after he had for eight years appeared on the records of the county as the real debtor, and that the order of the court marking the judgment of A; for his use, was not binding on other creditors who were not parties to it.
    This was an appeal from a decree of the Court of Common Pleas of Cumberland county, in the appropriation of the money arising from the sale of the real estate of John Goswiler.

    The decree was made on the 12th of April, and the appeal entered on Monday the Sd of May following. A motion was now made to quash the appeal, on the ground that it was not in time. This motion was argued with the question involved in the decree, from which the appeal was taken, by

      Williamson for the appellant,
    who cited 1 Sellon, 207. 8 Mod. 21. 1 Tid. 43k, 433. 1 Arch. Pra. 111. Tid. 626. 1 Sellon, 95. Sims v. Hampton, 1 Serg. fy Rawle, 411. Betz's Appeal, l Penn. Rep. 271. Commonwealths. Barker, 2 Id. 232. Bonds. Gardner, 4 Bin. 269. Cook s. Grant, 16 Serg. <§• Rawle, 211. Munroe s. Wallace, 2 Penn. Rep. 173. Davis s. Barr, 9 Serg. 4' Rawle, 141. And by

      Carothers, contra.

   The opinion of the court, which contains a detail of the material facts of the case, was delivered by

Huston, J.

A preliminary point in this case, wás this: The decree Of the cburt was made On the 12th of April, the second day of May following, was Sunday, and the appeal was entered on Monday the third of May. The act of assembly, of the 16th of April, 1827, Purdon, 476, Says, if any person shall consider hirtisélf aggrieved, by such decision, he may appeal to the Supreme Court, “within twenty days after such decision.” Without recurring to all the decisions on the subject of computation of time, it may be sufficient tb say, that whenever; by a rule of cdürt, or an act of the legislature; a given numbfer of days are allowed to do fen act, 'or it is said an act may be done within a givfen number of days, the day in which the rule is taken, or the decision made is excluded, Sims v. Hampton, 1 Serg. & Rawle, 411, and if one or more Sundays occur within thetime, they are counted, unless the last day falls on Sunday, in which case the afet may be done on the next day. This construction has been so universally settled in courts, and in cases so similar to the one in (question, that we think the rule ought to extend to cases Under this act; and the general rule, we think, ought not to be questioned, fespecialty as it is doubted whether We could substitute a better one in its place.

The Pennsylvania Agricultural and Manufacturing Bank, on the 30th November 1820, obtained a judgment against C Poor-man, drawer, and John Goswiler, endorser for six hundred and thirty dollars, twenty-five cents. By an act of assembly of this state, it had been provided, that the draWer and endorser of endorsers of a note, might be joined in the same suit. This action had some peculiarities which distinguished it from other suits for debts against several debtors, for there might be judgments for one and against another. On this judgment a fi.fa. issufed to Pug. Term 1821, which is státed tb have been levied on personal property, &c. (of Goswiler it is said,) but we liaye not the Writ of return.

On the 29th of July, 1821, C. Poorman, obtained a rule to show cause why this judgment should not be opened as to him, Poorman, and the proceedings were stayed in the meantime as to Poorman. On what allegation this rule was obtained, Wé know not. On the 17th February, 1827, this rule was discharged, and then the property levied on, was, it is stated, Sold and applied to former levies. To Ppril Term 1827 an alias fi. fa. issued, and was levied on a house and lot, &c. in Mechanicshurg, as the property of Poorman. It may be remarked here, that a great many judgments had been obtained before this one, against Goswiler. We have next the following entry from the docket: “17th November, 1828; Upon motion on behalf bf C. Poorman, and it ap péaring that he had satisfied this judgment to the Bank, under an agreériierit, by Which the judgment against Goswiler, should stand revived for his Use; and it also appearing to the court that the debt for which the said judgment was obtained, was' the proper debt of the said Goswiter, and that said Poorman was only sure-» ty for the same, the Court vacate the levy made on the estate of the said Poorman on this execution, and direct the original judgment against Goswiler to stand revived for thé use of the said Poorman. See paper filed.” This paper we have not, but we are told it is an agreement between Poorman and Goswiler.

On the 10th December 1828, Mr. Penrose, for Atwood, a judgment creditor, obtained a rule to show cause why this assignment to Poorman, should not be set aside. A rule was entered to take depositions.. On the 15th of May, 1829, this rule was discharged.

A scire facias issued to January Term, 1829, to revive this judgment. Jacob Garret had brought suit to August Term, 1820, against John Goswiler, debt on note under seal, and a refer ence and report in this suit, was made on the 21st day of February, 1821, for the plaintiff for two hundred forty-one dollars and thirty-six cents. The defendants appealed, and in January 1825, withdrew his appeal, when this report became an absol|te judgment. ■ . ■,

Some real, property of Goswiler had been sold on, the 9th of January, 1830, and the question was, whether Poorman as owner of the Bank’s judgment decreed to be assigned to him, or this latter judgment was entitled to the money. It was contended that-the lien of this first judgment was gone under the authority of Betz’s Appeal, 1 Penn. Rep. 271 and Commonwealth v. Barker, 2 Penn. Rep. 232, and a part of the court were of that opinion, but others doubted, on the idea that the rule in 1822 stayed all proceedings, and that no scire facias could then issue: and as the' Chief Justice did not set in the case, we have considered' it in another point of view. The right of a surety to be substituted for the plaintiff, and to hold the judgment against the principal, where' the surety has paid the debt, has been often settled in this and oth-» er courts. There must, however, be some limitation to it. In this case, it is denied that Poorman was surety, and that he is entitled to be substituted if he were.

From inspection of the suit on the docket, it would appear' that Poorman was the debtor — he was the drawer, and Goswiler the endorser. It is much stronger than the case of a man being the first named in a bond, it is prima facie evidence that he was the debtor and not the surety. To entitle him to substitution merely to facilitate his recovery against Goswiler, I agree that Goswiler’s admission in the paper filed is good evidence, but not as against other creditors. The rule taken by Atwood and that rule feting .discharged will be Conclusive to Atwood, but not as to other creditors, who had no notice of that rule,. Stahl v. Jarret, 2 Rawle, 454; 2 Des. Rep. 104. The party claiming to be substituted must always prove that he was a mere surety. Kenedy v. Gibbs, 2 Des. Rep. 380. But it does not appear whether this point was made in the Common Pleas; we rather think'not, or dispositions would have been taken or an issue directed.

Can a surety put himself on the record expressly as principal, and after several years, and many judgment creditors have acquired rights, apply, and have his situation and character changed, so as to affect them ? Doorman ties up this judgment five years by a rule, he then saw the docket and that he was represented to the world as the real debtor, and not the surety. If Goswiler had paid the debt, or it had been levied from Goswiler’s property, he could have been- substituted for the plaintiff, and by this judgment have covered Doorman’s property, or have taken the proceeds of it from Doorman’s creditors; and when Doorman pays it, he claims it from Goswiler’s creditors. This right of substitution is an equity, but an equity must be managed fairly, it must not be this or that as suits the parties. When he drew the note, he represented himself as the debtor, and Goswiler as his surety. On this idea, the Bank discounted the note, and he could not, as against the Bank, deny this, and claim that notice of non-payment should be given to him. Bank of Montgomery v. Walker, 9 Serg. & Rawle 129, Why then after being sued, and appearing in the character of principal, on the record from 1820 till 1828, shall he be permitted to deny all this to the injury of others. In Monroe v. Wallace, 2 Penn. Rep. 173, we have a case where a man who really paid off a judgment against another > had no right to be substituted for the judgment creditor, because his conduct exhibited a design to deceive, and defraud others. Although it was strenuously insisted and perhaps was true, that he intended no wrong, but was to hold the land till he was paid; and he reconveyed under the mistaken notion, that having paid the debt to Monroe he would be substituted in his place, and succeed to his rights.

Erb’s Appeal, 2 Penn. Rep. 296, establishes a principle which may be applied here, viz: that it is not always enough to entitle a party tobe substituted, or to the right of. substitution, that such person has paid off a prior judgment, but it must also appear, that such person applying for such 'rights of substitution, has a greater equity than those who oppose it. And in 4th John. 546, Chancellor Kent, whose decisions and expressions in some cases would seem to have carried this right further than any who had gone before him, (except decisions under the civil law) says: “The-benefit of substitution is only to be applied in a clear pase, appearing from the proceedings in the cause.”

We think the case before us does not present a clear case, and if it could be made clear by testimony, that would not still entitle Poorman to be substituted as surety, to the injury of other judgment creditors, after he had for eight years appeared on the records of the county, as the real debtor.

The decree of the court of Common Pleas is. reversed, and this court decree, that the judgment in favor of Garret is entitled to be paid out of the proceeds of the sale of the real estate of John Gos-, toiler, in court fpr appropriation,

Decree reversed.


text:
    RIFE against GALBREATH and Others.
    IN ERROR.,
    A feigned iásue was ordered by thp Orphans1 Court upon an administration account, the object of which, from the evidence given in the cause, seemed to be to determine with how much an executor was chargeable; but the issue had been joined on a declaration upon a wager that the defendant liad received ten thousand dollars, part of the estate of the testator. Held: That such issue was not calculated to meet the design, and that under it the single fact put in issue was, did the plaintiff receive $10,000 of the. estate of the testator as executor?
    It seems, an issue directed by the Orphans’ Court, for the purpose of deciding generally, what sum of a decedent’s estate is in the hands of his administrator or executor, is objectionable.
    It would be well if the same precision were to be observed in these issues, directed by the Orphans’ Court, to settle administration accounts, as is required in forming an issue before auditors in an action of account render.
    Where upon the trial of such issue, the court charged the jury, that “the witnesses say that after the death of H. R. sr. the sons took possession of the personal property, and D. one of them sold his moiety to H. the other. This establishes his possession and his transfer for a full consideration. Each executor having taker» one-half of the personal estate, in his own right, as devisee, and D. having converted his into money, it leaves him liable, to that extent, both to the legatees and creditors.” Held: That such charge, upon the evidence in the cause, withdrew the facts from the jury, and was error.
    Upon such issue, where it was in evidence, that the co-executor of the defendant had settled an administration account, charging liimself with the whole inventory, and crediting him with payments made, it is error to charge the jury, that the del fendant is chargeable yith one-half the inventory, and interest, and was not entij titled to be credited with one-half the credits, in such account of his co-executor.
    Upon an issue to try with what amount an executor is chargeable, as such, the will is evidence to shew his appointment as executor, and his duties under the will; and if these were unnecessary, giving it in evidence could do no injury.
    Error to the Court of Common Pleas of Adams county.
    This was a feigned issue, which it seemed, had been directed by the Orphans’ Court of that county. The order of that count directing tlie issue, was nqt brought up with the record. The dec-, laration counted of a wager, between William Galbraith, P^ten

      Culp, John Ebert, William Wert and Henry Witmer, who were legatees under the will of Henry Rife, deceased, and Daniel Rife, the defendant below, who was co-executor with Henry Rife, jr. of the said will, and survived the said Henry Rife, jr. that ‘ “part of the estate of Henry Rife, sr. deceased, amounting to the sum of ten thousand dollars,” “came to, and was then in the hands of the said Daniel Rife, as surviving executor of the last will and testament of Henry Rife, sr. deceased.” The defendant in his plea, admitted the wager, but denied that he had “received the said sum of ten thousand dollars, part of the estate of the said Henry Rife, sr. deceased, in the said declaration mentioned,” or that he was chargeable therewith, as surviving executor, &c. Upon this plea issue was joined.
    The plaintiff offered in evidence the will of Henry Rife, dated the- 21st of March, 1820, bequeathing certain legacies, &c. and ¡appointing Henry Rife and Daniel Rife, the sons of the testator, his executors, and the letters testamentary issued thereon to them, which being objected to, the court admitted the evidence, and sealed a bill of exceptions.
    An inventory of the personal estate of Henry Rife, sr. deceased, filed-by the executors, the 2d day of January, 1826, amounting to the sum of two thousand six hundred and eleven dollars and fourteen and one-half cents, was in evidence. The administration account of Daniel Rife, exhibited hy himself, into the Register’s office, upon citation, charged him with nothing.
    Several witnesses proved, that after the death of the testator, Daniel and Henry went into the possession of' the personal property, and occupied a farm which belonged to the testator, that they farmed together, and used the personal property on the farm, worked the horses, &c. and that there was no difference in the use of the property by them, before the testator’s death, when they lived with him, and afterwards; but that neither took particular possession of any part of the personal property. That all the dealings, in reference to the business in which they were engaged, were with Henry, who seemed to be the chief manager, who also acted as executor, and that Daniel was never seen to act as such, or make any contracts or purchases. After living together for eighteen months or two years after the death of the .testator, Daniel went to the state of Ohio, and was away for some time. Their occupation in common of the property, continued about eighteen months or two years. On the 30th of March, 1821, Daniel Rife, transfered all his interest in the real and personal estate of his father, as legatee and devisee under his will, to Henry his brother.
    Two judgments entered on the 19th of October, 1826, o,n tw,-v notes, dated respectively on the 1st and 15th off March, 1821, and amounting to the sum of nine hundred and nienty-eight dollars, in favor pf Daniel Bife against Henry Bife, were in evidence, as also another judgment, on notes bearing date in the year 1821, for two hundred and thirty-five dollars and forty-two cents, given by Henry to Daniel. An administration account was settled by Henry Bife, jr. deceased, in which he charged himself with the whole inventory, and was allowed credits to the amount of one thousand six hundred and thirty-three dollars and seventy-one cents, which left a balance in his hands of nine hundred and seventy-seven dollars forty-two and cents.
    The Court of Common Pleas charged the jury, that “the personal estate is first liable for the payment or use of debts or legacies. This is contemplated in the will of old Henry Bife. All his personal property, therefore, went into the hands of the twa executors, as a fund pledged for the payment of the debts and legacies. It was so pledged by operation of law. The witnesses say, that after the death of Henry Bife, sr. the two sons took possession, and afterwards Daniel sold his moiety to his brother Henry for a large eonsidération. This establishes his possession, and his. transfer for a full consideration. Each executor having taken pne-half of the personal estate, in his own right, and Daniel having converted his half into money, it leaves him liable to that extent, both to legatees and creditors. He would only be liable for one-half of the inventory, but the jury may charge interest thereon, from a year after the death of the testator. You have npthing to do with the credits. The issue is to try what the defendant is chargeable with, in his administration account, the credits will be allowed by the Orphans’ Court. ”
    A verdict having passed for the plaintiffs, the defendant brought this writ to reverse the judgment entered thereon, and now assigned for error,
    f. The court 'erred in charging the jury what the facts were, and instructing them tp find accordingly. The facts should have been Jpft tp the jury.
    2. In instructing the jury, that the defendant was chargeable with the one-half of the inventory and interest, and not to be credited with the one-half of the credits in Henry’s account.
    3. In admitting the will of Henry Bife, sr. in evidence.

      Stevens for the plaintiif in error.
    There was no evidence that Daniel had ever received a cent owing to the testator’s estate, on that he had ever paid any debts due by it; nor that he had even sold, or disposed of any article of property belonging to the estate; although he, as a devisee, and legatee under the will, may have. appropriated his interest in the estate, by assigning it.- All this could not make him liable for his co-executor. But the court withdrew the facts from the jury; as they did also the credits, to Which, in any aspect of the cause, the defendant was entitled, and which were evidenced by the administration acco'üíit of Henry. Besides, the issue was whether the defendant had réceived, and Was chargeable with ten thousand dollars, as the surviving executor of Henry Rife, and as the plaintiff’s failed to establish the fáct, that he had received, and was Chargeable with that sum, the issue should have been found for the defendant, who, in this view of the case, should have- been permitted the benefit of the consideration of the credits by the jury.

      Carothers for the defendant in error.
    The-issue formed Was' a feigned issue, a mere fiction; the substance of the controversy was to determine the amount with which the defendant was chargeable as executor of Henry Rife, sr-. It was Ordered by the Orphans’ Court; for this purpose, when his administration account was presented in that court, and contemplated the further action of that court when the issue was decided. The credits to which the defendant was entitled, were no part of the issue, they were not in dispute; and would of course be allowed by the Orphans’ Court, when the defendant’s account came to be finally passed.
    This case had been before this court on a former occasion, and is reported in 2 Rawle, 144, to which he referred.
    He contended that upon the evidence the defendant was cléarly liable, and that the case was stronger than the case of M’ Coy v. Porter, 15 Serg. Sr Rawle, 57, in which the executor was charged. He denied that the court had withdraW-n the decision of the facts from the jury. They had expressed an opinion of the facts, which Was not errdr. ’ Riddle v. Murphy, 7 Serg. 4' Rawle, 230.
    But it is a well settled principle, that whenever a trustee transfers or assigns his interest in the trust property, he is estopped to say that he never had it in possession. He argued that the deed of assignment from Daniel to Henry had that effect, and authorized the court so to charge the jury. ' •
   The court’s opinion was delivered by

Kennedy, J.

The feigned issue directed to be tried in this case, if we are at liberty to conjecture the object of it, seems not to be formed, so as to meet the design. From the evidence given on the trial it is certain that it was not joined for the purpose of deciding, whether Daniel Rife, who Was the defendant there was chargeable with one single item, amounting to ten,thousand dollars, of the estate of Henry Rife, sf. the deceased testator, where the only question was, whether he was to be charged with an indivisablé item of ten thousand dollars, and he was either to be charged with the whole of it, or no part of it. I say, from the Course of the trial, fend the evidence given on it, this could not have been the object of the feigned issue, because there was evidence given on the part of the plaintiff below, of the whole personal estate of the testator, consisting of many articles and items, and the'y claimed to charge Daniel Rife, with the aggregate amohiitof the whole estate of the testator; which fell greatly short of ten thousand dollars. But from the issue as it is joined upon the íécord, the single point to be settled is, whether Daniel Rife received ten thousand dollar's, part of thd estate of Henry Rife the testator, as his surviving executor. From! what was disclosed upon the trial, it is_evident that the plaintiffs below, could never have thought, that Daniel Rife had received any such sum as ten thousand dollars of the estate, because they must have known well, that the whole estate never amounted to but little more than one fourth of that sum¡ Many errors, as well as great injustice, must necessarily grovV out. of not stating the fact or facts contested between the parties specifically, and making the precise points of the issue or issues which are to be settled by á jury. It Would be well if the same precision and minuteness were to he observed in these issues, directed by the Orphans’ Court, to settle an administration account, as is required in forming ad issue before auditors in an action of account render. If this course were observed, every thing that is admitted and agreed on between the parties litigant, would be excluded by the form and terms of the issue or issues, from the consideration of the jury, and leave no ground for mistake or misapprehension afterwards of what was tried, and the extent of the liability Under the finding of the jury. We had another case before us at this term, in which the Orphans’ Court directed an issue in general terms, to try and determine how much of the estate of the intestate had come to the hands of the defendant, who was a co-administrator, and with how much he was chargeable. In the account which he had stated before the register, he had charged himself with Upwards of twelve hundred dollai'S, and on the trial of the feigned issue, it was a question of law upon which the direction of the court below was asked to the jury, whether if the jury should be of opinion, that the defendant was chargeable with nothing more than what he had admitted himself to be, in his administration account, and which iñ. reality was never in dispute, they should find a verdict in favor of the plaintiffs or the defendant, the court in that event directed the jury to find in favor of the defendant, and this was assigned for error in the case. 3 Penn. Rep. 183. Now if the judges, who' had directed the issue in this last case, and who afterwards formed the Court iff which the issue was tried, had died without any further account being settled, I am inclined to think, that the finding of the jury, would have presented évidence perhaps conclusive, of an entire acquittal, to the defendant. Yet those who were acquainted with the circumstances of the whole proceeding, could never doubt but that the defendant ought to be accountable for the amount with Which he had charged himself in his account, notwithstanding the finding of the jury in his favor, which was clearly a response to the general question submitted to them, what was he chargeable with? There is also an objection, as it appears to me, to the propriety of the Orphans’ Court directing an issue to be tried by a .jury for the purpose of deciding generally, what sum or amount of money or estate of the deceased, in the hands of the accountant, he is to be charged with. Such issue, unless there be a special direction to the contrary, as there is sometimes in an order of a Court of Chancery for the trial of an issue, on a matter of fact, must be tried according to the course of the common law; and the same rules, in respect to evidence, prevail as in other cases. This would perhaps be in violation of the rights of the accountant, who, as I conceive, according to the universal practice of this state, and that too, I may say, júme out of mind, has been admitted in many cases to discharge himself by his own oath or affirmation, from certain items or claims, as well as to entitle himself to certain credits, in part at least, by the like testimony. It does appear to me, that accuracy, convenience and justice all join in pointing out a different course to be pursued in these cases, from that of the present or the one alluded to, In the present case the single fact put in issue is, did the plaintiff in error, receive ten thousand dollars of the estate of the testator, as the surviving exéCutor, if he did, then according to his promise, he was bound to pay five dollars to the plaintiffs below, and a verdict ought to have been given against him, but if not, then the event had not taken place, upon which he had promised to pay, and he stood acquitted or discharged from the plaintiff’s claim. It is obvious, as I have already said, that this was not the end for which this issue was intended or directed, but most likely, the same with that in the case already alluded to, that is, to ascertain what amount, if any, of the estate of the testator had come into the hands of the plaintiff in error, and with how much he was chargeable. The foregoing observations- have been made, in hopes that they may cause the attention of the judges of bur Orphans’ Courts to this subject, so that more care and precision may be observed in directing such issues, than seems to prevail. The first error assigned is, that the court erred in charging the jury what the facts were, and instructing them to find accordingly. The judge told the jury, that “the witnesses say that after the death of Henry Rife, sr. the two sons, (meaning Henry and Daniel, the executors named in the will,) took possession (meaning of the personal property of the testator,) and afterwards Daniel sold his moiety to his brother Henry, for a large consideration. This establishes his possession, and his transfer for a full consideration. Each executor having taken one-half of the personal estate in his own right as devisee, and Daniel having converted his half into money, it leaves him liable to that extent, both to legatees and creditors.” Now although the witnesses in giving testimony in chief, did say that the personal property went into the possession of Henry and Daniel, upon the death of the testator, yet in their cross-examination, they also said that they saw no difference in the use of the property before the testator’s death and after it. That Henry and Daniel both lived with him — that they knewnothing ofDaniel's taking particularpossession of any part of it. That Henry Rife acted as executor and managed things and collected money. They never saw Daniel make any contract or purchases or transact any business as executor. It was all done by Henry so far as they knew, and tho.property left icith Henry when Daniel went away. Darnel sold nothing, attended to nothing as they knew of. After this testimony was given to the jury, it does appear to me that the court in charging the jury as above, withdrew the facts from them, and substituted their notion of the facts in its place. The transfer which the court speak of made by Daniel to his brother Henry, co-executor in the will, was merely a transfer of Daniel’s right and interest under the will, as devisee or legatee. To enable him to make such a transfer, it was not necessary that he should have taken possession of any part of the estate. So that notwithstanding this transfer, the jury taking into consideration the whole of the parol testimony that was given, had it been left to them to decide the facts, might have found that Daniel never had intermeddled with the estate, by taking possession of any part of it.; or at most, not more of it than perhaps a plough and team of horses, and even these, they, from the testimony, might have thought were under the immediate direction and control of his brother Henry. Unless then he took the actual possession of the property, he was not liable; and in that case liable only for the value of what he did so take possession of. Indeed it is most probable that the finding of the jury would have been in favor of Daniel, as the exonerating testimony came from the same witnesses that gave testimony which went to charge him. It however, was a matter exclusively for their determination, and ought to have been submitted to them, to say whether, from the whole of the testimony Daniel had taken possession of any of the property, and if any, to what ampunt. There was error committed by the court below, in not so leaving it to the jury.

The second error is, that the court instructed the jury, that the plaintiff in erro*, was chargeable with one-half of the inventory and interest, and was not to be credited with one-half of the credits in Henry’s account.

It appeared in evidence that Henry had settled his administration account of the estate, in which he had charged himself with the whole of the personal estate, amounting to two thousand six hundred and eleven dollars and fourteen and a half cents, and got credits amounting to one thousand six hundred and thirty-threft dollars and seventy-one and a half cents, leaving only a balance unadministered of nine hundred and seventy-seven dollars and forty-three cents. I here confess, that I do not comprehend or see, upon what principle the court below could, after this testimony was given, and which does not appear to have been contradicted, have directed the jury to charge Daniel with one-half of the estate. Henry having received the whole of it, had voluntarily charged himself with the whole of it. The justice and correctness of this, is not disputed by his representatives. He has accounted for and administered considerably more than the one-half of it; now in the worst probable state of things that can be imagined for Daniel, even if he had had the whole of the estate in his exclusive possession, and had delivered it over afterwards to Henry, he could not be charged with more than that portion of it which remained unaccounted for, and unadministered by Henry. Suppose Henry had administered and accounted for the whole of it, will it be said that Daniel would be chargéable still with the one-half of it? Surely not. There was error in this part of the charge also.

There is.nothing in the third error. The will was admissible to show that Daniel was a co-executor and what were the duties enjoined upon him by it. If this were unnecessary, giving it in evidence could do him no possible injury.

Judgment reversed