author: Gibson, C. J.

text:
    METZLER against KILGORE.
    In regard to tire entry of judgment, and their priority of lien, a day is not susceptabfe of juridical division, in the appropriation, therefore, of the proceeds of land sold by the sheriff, judgments entered upon the same day, when the fund is insufficient to discharge them all, are to be paid ywo, rata,- although it may appear, that one was entered at an hour of the day earlier than the others.
    Appeal from the decree of the Court of Common Pleas of Cumberland county, appropriating the proceeds of the sale by the sheriff, of the real estate of' Jesse Kilgore.

      Kilgore gave an amicable judgment to Thomas Metzler, one to Henry Leppert and one to Abraham Higernell; all of which were entered on record upon the same day, in the order in which they are here mentioned. As to Metzler's judgment, the entry on the docket, as to date, was “entered 14th November, 1828,” Leppert's was “entered 14th November, 1S28, at 5 o clock, P. M.” Higernell's was “entered 14th November, 1828, at 9 o^clock, P. M.” The court below was of opinion, that where it appeared by the record, that a judgment was entered at an hour of the day earlier than an other, it was entitled to priority in payment, and decreed accordingly.
    F. Watts and Penrose for appellant.

      Carothers for appellee.
   The opinion of the court was delivered by

Gibson, C. J.

A judgment is exclusively a matter of record,, and, as such, triable only by itself; insomuch that it can neither be established, falsified, nor explained by inferior evidence. When the legislature abolished the fiction of date by relation, no change was wrought in this principle, the actual date directed to be written in the margin, being made part of the record by force of the statute. Consistently with a sound construction, {hen, how far may the legislature be supposed to have gone? The letter of the enacting clause is satisfied by a specification of the day; and there is no intent apparent in it, to dispense with the common law principle of unity, in respect to the day, as a point of time. But if the day were susceptible of juridical division, it would be no easy task to determine,, in the absence of legislative provision, how the fact of actual priority should be ascertained. It could not be by the order of the docket, which every one knows to be accidental; and it would be a violation of the common law to resort to parol proof. There seems to be an irresistable tendency in this species of evidence, to draw to it the exposition of written contracts; but it has not yet seized on our judicial records, and it is our business to guard them, against it. All judgments, whether in vacation or term time, are equally acts of the court; and our jurisprudence would be brought to an alarming pass, if these were to rest, in any respect, in the memory of witnesses. The date of a judgment is unquestionably a part of it; and it would not only violate a principle of the common law, but be attended with infinite danger to fix the instant of its rendition by parol proof, a recourse to which can be justified only by an overruling necessity; such, for instance, as requires that the contents of a lost record be established by inferior evidence. No such necessity can exist, in a contest for precedence among creditors; and accordingly it seems to be agreed, though the point has not been directly decided by the court in the last resort, that where there is no minute of the precise time of the entry, there can be no division of the day. 1 Penn. Black. 418. It is where there is in fact such a minute that a doubt is entertained, it being supposed that a fractional difference ought to be recognised wherever it appears by the record. But how can it so appear? The precise time cannot be recorded under the authority of' the statute, which sanctions nothing that it does not enjoin; for if it were the business; of the prothonotary to minute it in a particular case or by request, it would be his business to do so in everjr case, and it will not be pretended that he would be answerable for having omitted it, as for the neglect of an ordinary duty. If then, it is neither enjoined or sanctioned by the statute, its legal effect can be no greater than that of any other voluntary act, which happens to be no part of the record. It woúl'd be too much, perhaps, to say, that nothing is part of the record here, Which would not bé so in England; but On ttié other hand, it is not to be conceded that every thing shall import absolute verity, which may be written in a docket by a prothOnbtary’s clerk. If süch a minute were to have the attributes Of a récord, parol evidence would be inadmissible to disprove or explain it, and if it were Conclusive, the power to make it, would, with the best dispositions on the part of the.officer, be liable to great abuse. The respective .prothonotaries might have no commim standard of time, and in thé case of a measuring cast, the question of priority between judgments in different courts, would depend on the regularity of their Watches. Even as regards judgments in the same courts, it would be dangerous to make an officer the sole and exclusive arbiter Of the date. It may be alleged, that the same danger is to be apprehended in regard to the memorandum of the day. But there is comparatively little room for management or mistake where the race is not a close one, in respect to which, alone, fractional differences are important; in fact, where the entries are separated by an interval of twenty-four hours, there is no race at all, and consequently no dispute about periods or dates. It would seem pregnant with inconvenience, and perhaps danger of injustice, so to construe the statute, as to give a minute of the precise time, the effect of record evidence; and short Of that, it is not easy to see how it can have effect at all. As a voluntary memorandum, it would be inadmissible on any principle of evidence, further than to refresh the memory of him that made it, preparatory to evidence by him of the fact, for it certainly would not be competent evidence unsustained by his oath; and thus the matter would Come to the same thing, as if there had been no memorandum at all, the question depending, in the end, on the recollection of the officer. Thus we should expose the rights of the parties, to the danger of blunder pr malpractice in the first instance, and the perils of parol proof in the. second. An argument has been attempted from the practice of endorsing the hour of delivering Writs offieri facias to the sheriff, though the statute requires, as in the' case of a judgment, no more than the day to be stated. Such a practice doubtless has prevailed, and so uninterruptedly perhaps, as to make the endorsement prima facie evidence of the hour. But an execution is not á matter of record, and to permit the memorandum of a fact connected with it, to acquire the consistence of evidence from usage, is a violation of ho fundamental principle of .the common law. The exact time of delivery may be ascertained, like-, any other matter in pais by proof, according to the ordinary rules of evidence; as in a contest about the relative-priority of delivery and an act bankruptcy. Selwick P. 173. The analogy, therefore, does not hold. Extreme cases have been put to show, that injustice' 'would be done, by refusing to inquire into the fact of actual priority, inasmuch as a lien, perfect at the time of its creation, might 'otherwise be impaired by the subsequent acts of the debtor; and a loan, obtained on the security of a judgment acknowledged; when it appeared by the records, that the property was not encumbered, is put not merely ás a possible but a probable? instance. We áre apt to contemplate rules of property with which we have long been familiar, as essential principies of abstract justice;, and such it is usual to consider the lien of a judgment, without reflecting that it is the creature of positive enactment, and that to allow the creditor who first obtains a judgment, a monopoly of the debtor’s land, is 'contrary to a fundamental principle of equity which abhors inequality. The argument is founded on assumption of the very matter in controversy: — the lender’s supposed fight to be secure from •the interference of subsequent incumbránces, in consequence of knowing that no one had preceded him; for if it be established that fractional parts of tiie day aie to be excluded from the date, the knowledge of the law which every one is bound to have, instead of inducing á false estimate Of his position, would induce him to hold the money loaned till the day had gone by. If, however, a different course were pursued, he coiild not complain of the consequence as a violation of his right, which is just what the law makes it. But the fractional principle would be nearly impracticable in its application, and a little more agreeable to oiir notions of abstract right, than the rule now to be established. How would it be ap'7 plied to two judgments, the date of the one being a day certain, and of the other a particular hour of the same day? If the first were deemed prior, as including the whole day, the party would be rewarded for a want of attention to precision,, or gain an advantage perhaps by having purposely omitted to mark the precise time, in • order to conceal his own posteriority; and on the other hand, if the second- were for these reasons deemed prior, it might happen, that the first would be postponed for a want of precision, not required by any Jaw, and in regard to an act done at a time when the party may have had no reason to anticípate a dispute or the importance of being particular. In the case of equities so balanced, it seems to me, that justice would dictate a contribution. Again: take the case of several judgments, all of which but one, contain a a minute of the hour, and a more complicated difficulty will arise. If, as was decreed here, the judgment which contains no minute 'of the hour, is to share with the first, in the order of specific date, and afterwards, out of what remains, successively in the same way Hvith all the others, it will, by a few operations be fritted away to Pothingj and virtually postponed: the other judgments taking the whole, though not according to their specific dates, by which the last might not be reached, but each getting at least something out of the share first set apart for the one without Specific date. If, to avoid that result, the one without specific date is to take a proportion of the whole fund in the first instance, and with á view to contribution by all, how is the residue to be applied? If to the remaining, in the order of their specific dates, the first of them will be paid in full, and with obvious injustice to the one which had just before received but a proportion, and which will in turn, however, fare better than the younger ones of specific date, which happen to receive nothing at all. It might appear* that those which get nothing, ought not to be represented in adjusting the proportions of those that get something. But they must necessarily be represented in relation to the judgment without specific date, else they are postponed to it, though standing on terms of equality with it; although, if it were out of the way, they might be reached. If to escape from these difficulties, all the judgments of specific date are paid in proportion, what becomes of the principle of preference, according to actual priority? A few such examples — and many more might be given — are sufficient to shew, that to do exact justice, on the principle of fractional priority, is impossible.

In contemplation of law, then, these judgments are of equal date: and how are they to be paid? In Adams v. Dyer, 8 Johns. 268, a preference was given to a creditor whose judgment had no priority, but whose execution was actually begun before any other had been delivered: but the decision is unsupported by the Attorney General v. Andrew, Hardr. 23, upon which the court relied. That was a contest between a subject and the crown, which claimed a preference by virtue of the royal prerogative; and the point turned on the Stat. 33 Hen. 8, which of course could not affect a question of preference here. It may well be, however, that a tenant by elegit, shall not be disturbed by a title, whose origin is no earlier than that of his own; but where satisfaction is tó be made by the price of the land, instead of the land itself, there is no impediment in the way of exact justice by distribution among the creditors according to their liens. And however it may be elsewhere, it has never been thought material in Pennsylvania to enquire how, or on whose judgment, the'money has been made: in fact it sometimes happens, that the seizing creditor gets nothing. It results, of necessity, then, that creditors whose title is the same, are to have their satisfaction in common; and that such has been the practice, is shewn by Emerick v. Garwood, 1 P. A. Brown’s Rep. 20, and Steele v. Taggert, id. in note. The rights of purchasers, however,' may depend on other considerations; and we, therefore, intimate no opinion in relation to the principle discussed, further than as regards its application to the liens of creditors.

Decree reversed, and distribution ordered pro rata.


source: Caselaw Access Project

license: Public Domain

text:
    BANK against IRVINE.
    A endorsed B’s note payable in sixty days, which was intended should be presented to a bank for discount; and at the same time he also endorsed another note in blank, and without date, with which it was designed the first note should be renewed when it fell due. The first note was discounted by the bank, and when it became due, was not renewed, and was not protested. Twenty-two months afterwards, the blank note was procured from the drawer by the cashier of the bank, who dated it and laid it before the directors to be discounted, in renewal of the first note: it was discounted, and when it became due, was protested for non-payment; of Which regular notice was given to the drawer. Held, that if the cashier, as the agent of the bank, procured the second note by improper means from the drawer, and contrary to the original design of the endorser, when he put it into the possession of the drawer, the bank could not recover in an action against the endorser.
    Error to the Common Pleas of Cumberland county.
    This was an action by the Lancaster Bank against Matthew Irvine endorser of a note discounted by the bank.
    On the 24th December, 1821, James Duffy drew his note for five hundred dollars payable to the order oí Matthew Irvine, sixty days after date, at the Lancaster Bank; the note was endorsed by Matfheio Irvine. At the same time he endorsed a blank note in order'to enable the drawer to renew the first note when it would become due, and delivered it to the drawer: the first note' was discounted by the bank, and when it become due, was not renewed, and was not protested, but laid over until the 24th November, 1823, when the cashier of the bank called upon Duffy, the drawer; and, as was alleged and proved, procured by improper means from him, the blank note which Irvine hadendorsed, dated it and laid if before the directors of the bank, to be discounted in renewal of the first note: it was also for five hundred dollars. This note was discounted; and when it became due, was protested for nonpayment, of which notice was given to Irvine the endorser. It did not appear by evidence that the interest which occurred upon the first note, from the time it became due, until the date of the second note, had been paid by any one. This action was brought against Irvine upon his endorsement of the second note. Several points w eré put to the court by the defendant’s counsel which were answered to the jury. The only one which it is necessary to state here, is this answer to the first point: “If the note in question was procured by improper means, by the cashier, as the agentof the bank, from James Duffy; and contrary to the original design of the endorser, when he put it into the possession of the drawer, it would be a bar to the plaintiff’s recovery.” The jury found a verdict for the defendant, upon which judgment was rendered; to reverse which, this writ of error was sued out; and the opinion of the court as above stated was assigned for error and was argued by

      Carotliers, for plaintiff in error.
    Who contended, that inas-' much as the endorser had put his endorsement into the possession of the drawer without date, and which might be used at any time, he would be liable at any time when it should be used. That no fraud of a third person, in procuring the note from the drawer would change this liability; and quoad hoc the cashier was a third person; though he was an agent of the bank, it was for other specific purposes. That if the fraud was not on the part of the bank the plaintiff was entitled to recover.

      F. Watts and Penrose, for defendant in error,
    were stopped by the court
   Judgment affirmed,


text:
    BARTER against THE COMMONWEALTH.
    The government of every incorporated town, has a right to improve the streets for public purposes, whether as higli-ways, or places for cisterns or wells. The practice for the inhabitants to sink wells in the street, is by sufferance, and in subjection to the corporate franchise. The title of the corporation to tile soil for uses, that conduce to the public enjoyment and convenience, is paramount and exclusive; and no private occupancy for whatever time, and whether adverse or by permission, can vest a title inconsistent with it.
    A bye-law or ordinance of a city corporation, which enacts a penalty fora misdemeanor, with imprisonment, in default of payment, on conviction by the Mayor or an Alderman, is void. The charter of the city of Lancaster, does not confer upon the councils, the right to vest in the Mayor and Alderman jurisdiction to convict summarily, or to entertain an action of debt for a penalty. If the charter did give the right to confer a power to imprison on summary conviction, and without appeal to a jury, it would be so far unconstitutional and void.
    Jurisdiction is expressly given to the Mayor’s Court, “for the recovery of fines, forfeitures, penalties, debts and other demands, cognizable in the City Court,” the exercise of which, stands clear of all objections on constitutional grounds.
    Certiorari to Nathaniel Lightner, Esquire, Mayor of tlie city of Lancaster. The circumstances of the ease were as follows:
    Before Lancaster was incorporated as a city, or had any regulations respecting wells of water in the public streets, the citizens were in the habit of sinking wells in the streets, so near the side walks, as not to interfere with the right of passage in the streets. George Kleiss had a well of this description, sunk by those under whom he claimed his property, many years since. This well was situated in Vine street, near the property of said George Kleiss, and used by him in his brewery. Sometime in 1827, Dr. Clark-son Freeman applied to the Select and Common Councils, to have that well opened as a public well. Dr. Freeman having a large tavern house on the opposite side of the street, this well would be of great service to him. The councils passed a resolution to have the well opened, and a pump placed therein, provided, the pump were-furnished by individual expense. The pump was furnished, and the mayor issued an order to the street commissioner and high constable, to open said well and place the pump therein. When the pump was put in, George Kleiss finding himself injured by it, had it carefully removed and the well again closed. The city councils then, on the 17th of November, 1827,huet, and enacted the following ordinance:—

      Note — -Romms, J. — ’Was sitting at a nisiprhis in Philadelphia and took no part in the decisions made at this court.

      “sin ordinance respecting pumps in the city of Lancaster.

      e ‘Whereas, it is of importance to the citizens of Lancaster, that every stream of water, susceptible of improvement, in the said city, should be rendered serviceable, by means of pumps or otherwise, so as to be useful in case of fire — to furnish water to cleanse the streets, and thereby purify the atmosphere, and, render the same salubrious and healthy, and in cases, where, in the opinion of the councils, it is necessary to authorize the putting in o£ pumps in the publie streets, it is highly important that the same should be protected from injury and damage:
    “Therefore, be it ordained, &c. that in all cases, where a pump has heretofore been put in, or directed to be put in, or shall hereafter be put in any wells of water, in any of the public streets of the city of Lancaster, by an ordinance, resolution, or other direction of said councils, no person or persons shall, at any time hereafter, remove, cut down, or wilfully break, injure, destroy,"or in any way damage and injure the same, or in any way stop or prevent the same from being used, without the consent of the mayor of the city; and each and every person so offending, shall, on conviction thereof before the mayor, or any of the aldermen, or justices of the peace in the city, be adjudged guilty of a misdemeanor, and to forfeit and pay a fine of one hundred dollars, for each offence, and in case such offender shall neglect or refuse to satisfy such fine, and no goods ean be found, whereof to levy the same by distress, he or she shall be committed to the jail or house of correction in this city, for the space of thirty'days.”
    After enacting this ordinance, the mayor gave orders to the ■street commisioner and high constable, to open the said well again and place a pump therein, which was done on the 5th of December, 1827, and on the same day Martin Barter, the defendant, as the agent of George Kleiss, removed and took out the said pump, and on the same day Dr. Clarkson Freeman, made the following complaint to the mayor.

      '‘City of Lancaster, ss.

    “The information of Clarkson Freeman of the city of Zancas' ter, Doctor — made and exhibited before me, Nathaniel Lightner, mayor of the said city, upon the solemn oath of the said Clarkson Freeman, the fifth day of December, Anno Domini, one thousand ■eight hundred and twenty-seven, who saith, that on the fourth day of December, (the present month,) a certain Martin Barter, of the said city, laborer, did wilfully remove, cut down, damage, injure and destroy a certain pump, which the same day had been placed in a well of water, in Vine street, near the intersection of Queen street, in said-city, in pursuance of a resolution of the councils of said city, and did thereby stop and prevent the said pump from being used, contrary to the provisions of an ordinance of the said city of Lancaster, passed by the Select and Common Councils of said city, on the 17th of November, 1827, entitled ‘an ordinance concerning pumps in the city of Lancaster.* ”
    Whereupon, the mayor issued his precept, and the said Martin Barter was brought before him, on the 11th day of December, 1827, and put in the following plea:—

      *‘Lancaster City, ss.

    “And the defendant in his proper person comes, &c. and for plea in his behalf, states, That the above prosecution ought not further to be sustained against him,- because, he says, the said Nathaniel Lightner, mayor of the said city of Lancaster, has no right, power, authority or jurisdiction to hear, try and determine the said complaint, and inflict the penalty imposed by the said ordinance, because, by the 11th section of the act of assembly, incorporating the city of Lancaster, the powerof inflicting penalties for the violation of any of the ordinances of said city, is given to the Mayor’s Court of said city, neither the constitution nor the legisla ture of this commonwealth, have in any case, given the mayor, aldermen or justices of the peace, in and for-said city, this power and jurisdiction, and neither the mayor, nor any alderman or justice of the peace, in and for the said city, have any power, authority, or jurisdiction, except what is- given to them by -the constitution and laws of this commonwnalth. They ean derive no jurisdiction from an inferior source.

      The defendant, therefore, prays judgment of th'e said mayor? whether he will further sustain their complaint and prosecution aforesaid, and that the said defendant may be discharged therefrom without delay.-”
    Which plea was overruled by the said ftiayor, who thereupon-convicted the said Martin Barter, and made the following record-of the same:—

      “ City of Lancaster, ss.

    “Be itremembred, that on the fifth day of December, in the yea£' of our Lord one thousand eight hundred and twenty-seven, at the city of Lancaster, Clarkson Freeman of the said city, Doctor, appeared before me, Nathaniel Lightner, Esquire, mayor of the said city, and upon his solemn oath, then and there by me administered, gave me, the said mayor, information, that Marlin Barter of the said city, laborer, did, on the fourth day of the present month, December, wilfully remove, cut down, damage and destroy a certain pump, which the same day had been placed in a well of water in Vine street, near the intersection of Queen street, in said city, in pursuance of a resolution of the councils of said city, and did thereby stop and prevent the said pump from being used, contrary to the form and provisions of an ordinance of the city of Lancaster, passed by the Select and Common Councils of said city? on the seventeenth day of November, one thousand eight hundred and twenty-seven, entitled “an ordinance concerning pumps in the city of Lancasterand afterwards, upon the eleventh day of December, in the year aforesaid, the said Martin Barter, who was previously summoned, in pursuance of my summons for that purpose, to appear before me, the said mayor, upon the said eleventh day of December, at 10 o’clock in the forenoon of that day, at; my office in said city, to answer the matter of complaint contained in the said information; the said Martin Barter appears before me to answer and make defence to the matter contained in the said information, and having heard the same, for plea saith, that I, the said Nathaniel Lightner, mayor, have no right, power, authority or jurisdiction, to hear, try and determine the said complaint, and inflict the penalty imposed by the said ordinance; upon which ground of defence, (after hearing the argument of Ebenezer Wright, Esquire, counsel for the said Martin Barter,) I, the said mayor, do determine and decide, that I have the power and jurisdiction to hear, try and determine the same. And then the said Martin Barter, for further plea, says he is not guilty of the said offence. Whereupon, I, the said mayor, do proceed to examine into the truth of the said information, in presence and hearing of the said Clarkson Freeman, as of the said Martin Barter,
      and thereupon, oh the same day and year last mentioned, át the eity aforesaid, George Stauffer, high constable, and George Brungard, street commissioner, of said city, creditable witnesses in this behalf, come before me, the said mayor, and are by me, the said mayor severally sworn, and do before me, the said mayor, severally take their corporal oaths, upon the holy gospel of God, to speak the truth) the whole truth and nothing but the truth, of and upon the matters contained in the said information, (I, the said mayor, having sufficient and competent power and authorityto administer such oaths,) and the said Geo. Stauffer, and the said Geo. Brungard, being so sworn, on their said, oaths respectively say and depose, in the presenee and hearing of the said Martin Barter, that they did, on Wendesday the 4th day of December, the present month, with workmen by them employed, (one of them being the said Martin Barter,) in compliance with a resolution of the Select and Common Councils of said city, place and put a new pump in a well of water in Vine street, near the intersection of Queen street, in said city, and on the . same day, in about an half hour after the said pump, had been so placed in the said well,they saw the same Martin Barter, who is now before the mayor, employed in cutting down the same pump, and saw him cut down, destroy and remove the same, and two other creditable witnesses, to wit:~ William Jordan and Robert Porter, are also produced in this behalf, who are now before me severally sworn, and take their corporal oaths upon the Holy Gospel of God, to speak the truth, the whole truth, and nothing but the truth, of and upon the matters contained in the said information, and the said William Jordan and Robert Porter, being so sworn on their oaths respectively say, that, on the 4th day of December, the present month, after the said new pump had been placed in the said well, they saw Martin Barter with an axe, cut down, and saw him destroy and remove the same pump; and the said Martin Barter being asked by me, the said mayor, if he has got or can produce any evidence to contradict the proof aforesaid, he, the said Martin Barter, does not produce, nor does he say he can produce any evidence to contradict the same, nor does he sheiv me any sufficient cause why he should not be, convicted of the premises aforesaid. Wherefore, it manifestly appears to me, the said mayor, that the said Martin Barter is guilty of the premises charged upon him, in and by the said information. Therefore, it is considered and adjudged by me, the said mayor, that the said Martin Barter, according to the form of the said ordinance of the city of Lancaster, be convicted, and he is-accordingly by me convicted of the offence charged upon him by the said information, and I do adjudge that the said Martin Barter, for the said offence hath forfeited the sum of one hundred dollars, to be (paid and distributed as follows: one-third part thereof to the said
      Clarkson Freeman, who gave the information, and the other two-thirds to the treasurer o.f the city of Lancaster, for the use of the mayor, aldermen and citizens of Lancaster, agreeably to the provisions of another ordinance, entitled ‘an act concerning fines and forfeitures.’
    “In witness whereof I, the said Nathaniel Lightner, mayor of the city of Lancaster, to this record of conviction, as aforesaid, have set my hand and seal, the eleventh day of December, in the year of our Lord, one thousand eight hundred and twenty-seven.”
    The plaintiff in error assigned the following errors;
    1. George Kleis, who imployed Martin Barter, the defendant, to remove the pump mentioned in the conviction, is the owner of the well in which the said pump was placed, by order of the city councils, and had a brewery furnished from the said well. And said well was dug at the expense of those under whom he claims, and has been used by him and his predecessors, for more than twenty years, and being the private, individual property of the said George Kleis, the city of Lancaster has no right to the same, nor had the councils any authority to direct the pump to be placed in said well.

      2. The ordinances of the 17th of November, 1827, is unebnstitutional, illegal and void, and creates an arbitary power, alike hostile and destructive to vested rights and civil liberty.
    3. The conviction is erroneous and illegal, inasmuch as it does not follow the ordinance which gave the power to the* mayor to convict.
    4, The conviction is illegal, the mayor having no power to make it.
    The cause was argued by

      W. Hopkins for the plaintiff in error,
    who referred to 1 Burr, 417. Commonwealths. McDonald, 16 Serg. Sf Bawle, 396. The act to incorporate the city of Lancaster, § 5, 24. 7 Penn. Laws, 95. The constitution of Pennsylvania, art. 9, § 6. Purd. 25. 14 Fin. 343. Commonwealths. Smith, 4 Binn. 117. Commonwealth v. Beigart, 14 Serg. <§• Bawle, 216. 1 Burn’s Jus. 416, 417. And by

      Montgomery and Champneys for the defendant in error. They cited The Commonwealths. The Judges, 3 Binn. 973. Eason v. Smith, S Serg. <§■ Bawle, 343. 2 Cromp. Pra. 273. 3 Black. Com. 112. Watson s. Mercer, 17 Serg. fy Bawle, 343. 2 Ld. Maym. 901, 912. 5 Cowen. 538. 7 id. 349. Commonwealth s. Duquet, 2 Yeates, 493. 2 Cowen, 585. The act of the 26th of August, 1721, 1 Smith, 130. The act of the 9th of April, 176®. 1 id. 227. The act of the the 21st of February, 1767. 1 id. 268. Jacobs L. Die. 326, Tit. Prohibition. Province Laws, 19, 20. 1 Wood. Lee. 495. 3 Burr, 1858. 12 Mod. 686. Purd. Dig. 760. The Mayors. Mason, 4 Dali. 266. Cro. Cha. 178.
   The opinion of the court was delivered by

Gibson, C. J.

That the government of every incorporated town, has a right to improve the streets for public purposes, whether as high ways or places for cisterns or wells, is a proposition about which there can be little dispute. It is difficult to imagine a subject to which the incidental rights of a municipal corporation, more appropriately extend; and these, where they exist at all, are necessarily exclusive. It has doubtless been a practice, for the inhabitants to sink wells in the street, at their particular cost, but being beneficial to the public, as well as the individual, and therefore, affording no occasion to contest the right, these have been by sufferance and. in subjection to the corporate franchise. The title of the corporation to the soil, for uses that conduce to the public enjoyment and convenience, is paramount and exclusive; and no private occupancy for whatever time, and whether adverse or by permission, can vest a title inconsistent with it. The case of the Commonwealth v. McDonald, by which this salutary principle has been conclusively established, is founded in the purest reason, and fortified by the strongest authorities. Without, then, attempting to fix the limits of our own power, in respect to prerogative writs, it is sufficient to say that the suggestion of right on which the prohibition is prayed for here, is altogether groundless in fact, so that were we to take the existence of the power for granted, we should certainly not deem the present case a proper one for the exercise of it. The principal question, therefore, is that which regards the competency of the corporation to make the bye-law on which the defendant has been convicted.

In this bye-law, the mischief to be'suppressed is declared a misdemeanor to which a penalty is annexed, with imprisonment in default of payment, on conviction by the mayor or an alderman. No power to commit is given to one of these in the charter, nor is it vested in the corporation, either expressly or by necessary implication, without which, an exercise of legislative authority, such as was assumed in the enactment of the ordinance, may not be supported on the principles of the common or statute law; and for this we have an abundance of authority. In Clarke’s case, 5 Co. 64, the defendant attempted to justify an imprisonment of the plaintiff, under a bye-law of the town of St. Albans, by which it was ordained, that any one who should refuse to pay certain assessments, might be imprisoned; and the plea was adjudged ill. It was held even that the plaintiff’s assent to the ordinance, would not have altered the law, though it was conceded, that a reasonable penalty might have been inflicted. So a bye-law that an offender shall forfeit forty shillings and' be imprisoned in default of payment, has been held ill. 1 Roll. Abr. 364; and in the first resolution, in the King v. Clerk, 1 Salk. 349, it was conceded, that a corporation might have power to commit by custom, but'not by charter or byelaw; and the same principle was resolved in Wood v. The Mayor and Commonality of London, id. 370. So too, in the King v. The Merchant Tailors of London, 2 Lev. 200. The foundation of the principle is said, in Clarke's case, to be the often quoted provision in Magna Charta, Nullus liber homo eapiaturvel imprisonetur nisi per legale judicium paritjm stjorum, vel per legem terrae; the substance of which is secured to us in the Bill of Rights. Now if the charter even purported to confer a power to imprison on summary conviction and without appeal to a jury, it would be so far unconstitutional and void. But it purports to give no such power, being framed on the model of the charter of Philadelphia, under which, it is remarkable, that notwithstanding the natural tendency towards excess in every depositary of power, but one ordinance has been passed, which could, by any construction» be made to authorize the enforcement of a penalty by summary conviction. Of the one hundred and sixty-one contained in Mr. Lowber's edition of the ordinances, the one passed on the 13th of July, 1809, to punish for removing, injuring or defacing stones or marks placed to regulate the ascent or descent of streets, alone imposes a penalty to be recovered by conviction, before the mayor, recorder oran alderman: Lowb. Ord. 228; and the conviction thus spoken of, was probably intended to signify a recovery by action, the word having been used incontestably in that sense, in an ordinance passed the 14th June, 1790, id. 124-5. This temperate and guarded use of their powers, is highly creditable to the councils of that city. Admitting then, as seems to have been done by Lord Mansfield, in Hesketh v. Braddock, 3 Burr. 1858, that a corporation may provide by its inherent powers, for the recovery of a penalty from its own 'members by action of debt in its own court, the question occurs, what is the individual jurisdiction of these aldermen, or what, in subordination to the constitution, is the legislative power of this corporation, by the provisions of its charter? By the eighteenth section, the mayor and aldermen are to have the jurisdiction of Justices of the Peace, and subject to the same right of appeal to the common pleas; but this, which is the only jurisdiction that is given to them individually, is insufficient to authorize them to convict summarily, or even to entertain an action of debt for a penalty. Zeigler v. Gram, 1 Serg. & Rawle, 102. If, then, the.legislature did not think fit to vest such a jurisdiction, was the corporation competent to vest it? It is proper to remark, that as justices of the peace, the aldermen are not officers of the corporation. In that aspect their duties and jurisdiction are, in their nature and extent, the duties and jurisdiction of the justices in the adjoining'townships, and bear exactly the same relation to the government and ordinances of the city. They are corporate officers, only in their character of aldermen, properly so called, or in other words, judges of the Mayor’s Court; and how the corporation can confer a jurisdiction on a justice of the peace, whose functions are independent of it, or even on its own officer, which the legislature has not expressly authorised it to confer, I am unable to imagine. Even were its inherent legislative power extendable to its officer, it could not be extended to the Common Pleas, «o as to confer appellate jurisdiction on that court, without which the summary proceeding of the corporate officer would be unconstitutional. No such power was intended to be exercised by it. By the fifth section of the charter, the councils are authorized to make such bye-laws, not being repugnant to any constitutional principle, ‘fas shall be necessary or convenient for the government and welfare of the said city, and the same to enforce, put in use and execution by constables or other proper officers.” This evidently has reference to executive officers. In addition, the councils are to have the powers that belonged to the government of the place when it was a borough, as well as those that are vested in the Select and Common Councils of Philadelphia, none of which relate more specifically to the delegation of judicial authority, than those granted generally in the preceding part of the section. How, then, is the criminal justice of the corporation to be administered? By the eleventh section, it is provided that the mayor and aldermen, shall not only hear and determine crimes and misdemeanors against the laws of the commonwealth, but “also inquire of, hear, try and determine all offences, which shall be committed within the said city, against any of the laws, ordinances, regulations or constitutions, that shall be made, ordained and established, in pursuance of this act, and punish the offender or offenders, as by the said laws, ordinances, regulations or constitutions, shall be prescribed or directed;” and in order to do this, they are authorized to hold a court of record, with the jurisdiction of a Court of Quarter Sessions, to inquire of offences against the commonwealth. And by the twenty-fourth section it is directed, that “for the recovery of fines, forfeitures, penalties, debts and other demands, cognizable in the city court, the ordinary forms of law shall be pursued in the process, judgment and several kinds of executions, as if the same were cognizable in the courts of the county.” Here, then,' is a court of record, to whieh proceeding by the forms of the common law, jurisdiction is explicitly given, the exercise of which stands clear of all objection on constitutional ground; and to it must be referred the punishment by indictment or penal action, as may be prescribed in the ordinance, of every offence by which a fine, forfeiture or penalty has been incurred in consequence of a breach of the corporation laws. It might perhaps be convenient, to give the aldermen separately, jurisdiction of penal actions, as in other cases of debt, whore the amount is the same; but that can be done only by the legislature. It is, however, not the matter in hand, and we at present decide no more, than that this conviction can not be sustained.

Conviction quashed.


text:
    BARGE against THE COMMONWEALTH.
    IN ERROR.
    In cases of misdemeanor as well as felony, where the defendant's special plea in bar has been determined against him on matters of law, a judgment of respondeat ouster, is the proper judgment to be rendered.
    Error to the Mayor’s Court of the city of Lancaster.
    In that court an indictment was found against Jacob Barge,, the plaintiff in error, for fornication and bastardy, when the following proceedings were had:
    November 15th, 1827. — Defendant by his counsel Beak Frazer, pleads “autrefois acquit” and “nob guilty.” Attorney General replies, that there is no record of ah acquital as alleged by the defendant from the charge contained in this indictment. Issue to the court.
    November 16th, 1827. — After defendant’s counsel procured and read a record of the court of Quarter Sessions, of Lancaster county, and after argument. Judgment for the Commonwealth on the issue.

    Mr. Champneys Deputy Attorney General, then moved the court that judgment be pronounced against the defendant to which defendant’s counsel objected, and asked for a trial before the jury on the plea of not guilty. After argument the court overruled the objection, refused a trial on the plea of not guilty, and pronounced judgment against the defendant and sentenced him.
    The plaintiff in error assigned these errors:
    1. The court erred in directing the issue in the plea oí “autrefois acquit,” and the replication of “no such record” to the court, as the. same should have been referred to the jury,
    2. There is error in the court passing “judgment for the Commonwealth on theissue.”

      3. The court erred in refusing the defendant a trial on the plea of not guilty; pronouncing judgment and passing sentence against him without a trial before the iury, and a conviction by the same tribunal.

      R. Frazer, for the plaintiff in error.
    The plea of not guilty has not been disposed of, it is yet undetermined. It was rightly put in; with the plea of autrefois ac

      quit, as double pleading is allowed as well in criminal as civil cases in Pennsylvania. The judgment is therefore erroneous as all pleas must be disposed of before judgment.
    The court without knowing his guilt, sentenced him' because he had pleaded autre fois acquit. He referred to the Commonwealth v. Demuth, 12 Serg. fy Raiole, 389.
    The principle upon which the Court relied as authority for the judgment found in 1 Chit. Crim. Laxo, 375, 451, is rested on the case of the Queen v. Goddard, 2 Ld. Raymond, 922, which is refered to. In that case it is a mere dictum and not the point before the court. 2 Haw. b. 2, ch. 31, sec. 6 fy 7. 3 Salk. 171. 2 Wils. R. 367. Judgment of respondeat ouster should have been given. The plea of antrefois acquit is like a plea in abatement, if'it be of a matter of fact, and it Is found against the defendant, final judgment is given as a punishment for his falsehood, but when the plea is of a matter of law, as the defendant cannot be presumed to be acquainted with matters of law, he ought not to be punished by a final judgment, because he has been mistaken in his plea.

      Champneys, for the defendant in error,
    The constitution of our courts, and the policy of the law requires no different rule from that established by the common law of England. The rule there sustains the judgment of the Mayor’s Court. 1 Chit. Crim. Law, 375, 451. Haw. b. 2, ch. 23, sect 12S. 2 Ld. Raymond, 922.
   The opinion of the court was delivered by

Gibson, C. J.

No adjudged case supports the dictum of Lord Holt in the Queen v. Goddard, that a defendant call plead over but in treason or felony, nor has it to the extent been adopted by any elementary writer but Lord Hale, who of course, had not in view a distinction presently to be mentioned which has sprung up since his day. — Hawkins, after noticing the defendant’s privilege in felony, says that in this respect an appeal or indictment differs from an appeal of mayhem, and from all other civil actions except certain writs of assize; ‘for it seems to be an established rule,” he adds, “that in appeals of mayhem and all other civil actions^ those above named only excepted, if a plea in abatement triable by the country be found against the defendant, he shall not afterwards be suffered to plead over any new matter, but final judgment shall be given against him.” B. 2, ch. 23, sec. 128. He is certainly for restricting the judgment of respondeat ouster to eases of felony if the plea in abatement or bar has been determined against the defendent on matter of fact; but nothing is said by him to affect the right of the defendant to a like judgment in cases of misdemeanor where such a plea has been determined against him on matter of law. Mr. Starkie thinks a defendant ought on principle, to be concluded even in felony where facts necessary to constitute guilt, have been admitted by him on demurrer. Criminal Pleading, 348, Mr. Chitty adopts the principle of Lord Holt, but in referring to the Queen v. Goddard, expresses a doubt of its authority. Criminal Law, 461 note. Lord Hale in his pleas of the crown, 248, 256, 255, says that judgment of respondeat ouster is infavorem vitoe; whence an inference that it is an indulgence, and peculiar to capital cases: yet an undoubted practice has sprung up since his time, by which, in cases of misdemeanor, the defendant has judgment of respondeat ouster upon an adverse determination of his plea in abatement in matter of law. This stops short of the rule in felony, by which no plea; whether in abatement or in bar, or whether determinable as matter of law or matter of fact, precludes the defendant from the benefit of the same judgment. But it is well settled by authorities collected in Starkie’s Crim. Plead. 436, and Chitty’s Crim. Law, 451, that if a plea in abatement be determined against the defendant on demurrer, the judgment is that he' answer over; and why not if a special plea in bar be thus determined, provided it contain no confession of facts that constitute guilt? The difference which there is between the effect of a verdict and of a demurrer, in the determination of a plea in abatement, arises from the presumption the law makes that every plea which is found to be false in fact, was known to be so by him who pleaded it, and he is concluded for having pleaded false; but he is not presumed to have known the matter of law which he left to the court, and is consequently not to be concluded by the determination of it. Chitty Crim. Law, 451. Now it is difficult to see why the same just and salutary discrimination shall not be made in x-espect to the determination of a special plea in bar. Whether the defendant has already had a verdict of acquittal, is a fact of which he is competent to judge; but whether it were on a sufficient indictment, is a matter which he leaves to the court, and is presumed for that reason not to know, so that consistently with the principle indicated by Mr. Chitty, he may at the same time reserve the benefit of his plea of not guilty. But it seems that in the King v. Gibson, 8 East, 112, Lord Ellenborough has said that if pei’Sons indicted of misdemeanors had been considered entitled to the px-ivilege of dreading double as in felony, there would have been many instances of it in the books. The argument, then is found at last to rest on a technical rule of pleading which, having been abolished in civil cases in order to allow a defendant as many pleas as justice may require, where property to the value of a shilling is involved, is nevertheless, we are told, to be sternly enforced where the defendant’s character, liberty, and perhaps the peace of his family, are jeoparded. No case can be produced where the point was so ruled; for the King v. Gibson was itself the case of a plea in a abatement, and if it were not, the case is not authority here, nor to be cited as such. The same justice, not to say humanity, which originally dictated a judgment of respondeat ouster in felony, dictates the same judgment in cases of misdemeanor where the defendant's special plea in bar has been determined against him on matter of law, and the case ought therefore to have been put to the jury on the plea of not guilty.

Judgment reversed.


author: Houston, J.

text:
    STULZFOOS' APPEAL.
    Appeal of STULZFOOS and others in the matter of the distribution of the money arising from the estate of J. HAMILTON, deceased.
    A decree of the court of Common Pleas which does not distribute the whole fund raised upon the sheriff’s or coroner’s sale of real estate, is not final; and in case a creditor is not satisfied with a partial appropriation of the fund, he must wait untill a decree is made distributing the entire fund, when he may appeal, and have redress for any error committed in such partial appropriation.
    A specialty creditor who is entitled to be paid out of the proceeds of real estate of his deceased debtor, sold by the sheriff and brought into court, is entitled to be paid interest to the time the fund is raised, and not up to the time of the decree.
    In such distribution a specialty creditor whose claim is for unliquidated damages on articles of agreement for a breach before the distribution, is entitled to be paid, although the covenants were not broken at the death of the'decedent, in such case a verdict and judgment may be necessary to ascertain the sum; but where the agreement or bond is to pay a certain sum on a particular event, and that eventhas happened, it is as much a matter of calculation, as if to be paid at a certain time, and that time has arrived.
    Tinder certain circumstances the Supreme Court will suspend their decree, upon appeal from a decree of the Common Please for the distribution of the proceeds of real estate, sold by the sheriff or coroner, for further proof.
    This was an appeal from the decree of the court of Common Pleas of Lancaster county distributing the money raised by the sale of the real estate of James Hamilton deceased, which sale was made by the sheriff on execution after the death of Hamilton. The appeal was taken by John Stulzfoos, Peter Eckert, and JLbraham Royer. They claimed to be paid, as specialty creditors, upon a covenant of title, the amount of damages which they had incurred by an eviction. Hamilton the intestate having previously taken in right of his wife, the real estate of his father-in-law one Carrigan, who died intestate in 1791, articled to convey clear of all incmbrance to Peter Eckert, Jlbraham Royer, and Chris

      tian Ryer, and executed separate deeds to them for the land, which he had taken at the appraisement.
    In 1796, he received one hundred pounds of the purchase money, and gave to the purchasers a bond of indemnity against all claims and demands of all persons against said land. In 1800 Hamilton received, as guardian of his daughter Catharine three hundred pounds, and executed a release for it, covenanting against her, or any claiming under her, any part of the land so sold. Catherine intermarried with Geo. Jenkins, and in 1818 brought an ejectment against the purchasers, and in 1825 this ejectment was finally decided in their favor, and the plaintiff recovered forty-one acres, and two quarters, the value of which, costs on eviction, counsel fee, &c. amounted to sixteen hundred and ninety eight dollars and forty-five cents, exclusive of mesne profits; which were agreed to be three hundred dollars. The appellants claimed these sums on the said covenants of Hamilton, who died before they were broken, or any damages had been incurred upon them. In 1827 the appellants had petitioned the Common Please ot make distribution of the fund, and claimed as specialty creditors of Hamilton. The Court then directed the payment of certain judgments rendered against Hamilton, and rejected the application of the appellants, but did not distribute the whole fund. The appellants, then appealed to the Supreme Court, and the Supreme Court quashed the appeal, because no final decree had been made, and remanded therecord directing thecourt below to proceed to a final distribution, and decree. On the 22nd of January 1830, the appellants again moved the court of Common Pleas to make a final decree, which that court did, by rejecting the claim of the appellants, and distributing the balance of the fund to other specialty creditors, and to simple contract creditors, computing interest on the debts by specialty up to the time of the decree, and on the simple contract debts to the 24th of June, 1825, when the fund was raised upon the sale of the real estate of Hamilton. An affidavit was filed at the time of the decree, that a judgment of one Grayson assignee of Whitaker, executor of Wray, against the intestate was satisfied by the payment of a judgment against one George Jenkins, in favour of the same plaintiff, to the same term; which George Jenkins, it was testified by the same affidavit was the principal debtor in the bond on which both of the said judgments were entered, and that Hamilton was but a surety. Accompanying this affidavit, Wm. Jenkins the assignee of George, filed a paper, disclaiming the payment of this judgment against Hamilton as unjust and illegal. Upon this evidence the appellants and others creditors of Hamilton moved the court to exclude this judgment from the distribution, “and . that the money drawn from the prothonotary illegally and inadvertantly thereon” “be refunded for distribution. ” The court had, in 1827 decreed this judgment among others to be paid, and in their decree now, recited the decree ¿hen, and distributed the balance which remained and did not exclude the judgment of Grayson.

    The following errors were assigned:
    1 that the appellants were entitled, under the 14th Section of the Act of Assembly regulating intestate estates, passed the 10th of April, 1794, to be paid out of the money paid into court,, the damages, and all the costs, incurred by them by the failure of Hamilton's title to them and their eviction, with reasonable counsel fees.

      2. That if any incertitude arose in the mind of the court, with respect to the liquidation of the claimsof the appellants which they thought ought to have been passed upon by a jury, it was the right and duty of the court to have directed an issue to try and ascertain them, and not to allow a right to perish for want of a remedy.
    3. The court erred in not directing the money, ordered by the court to be paid in the suit of John Grayson assignee of John Whitaker executor of Stephen Wray, deceased, v. James Hamilton’s executors, to be refunded, as it had been paid before said order was made, by the real debtor, Hamilton being surety merely* and which was refused to be received by the p .a in tiff.

      Hopkins, for the appellants,

      Porter contra.
   The opinion of the court was delivered by

Houston, J.

J. Hamilton died indebted to sundry persons on judgments in his lifetime, to the appellants on specialties, but on which nothing was due at Hamilton’s death, but on which monies were due before the money brought into court, and are still due; and also on sundry simple contracts on which suit had been brought and judgments obtained at the time of the decree.

On the 30th of June. 1827, the Common Pleas made a partial distribution of the money in court, directing certain judgments to be paid. They also decided that they would not notice the claim of the appellants, because nothing was due on it at the death of James Hamilton, but they did not distribute the whole fund. The appellants appealed, see 13 Serg. & Rawle, 299. The appeal was dismissed, because that court had made no final decree, and this court would not hear a discussion and give a decision on every interlocutory decree in such case.

When the cause went back, that court, after stating that they had before directed payment to certainjudgment creditors,proceed to say we could not then, nor can we now recognise the claim of Stulzfoos, P. Eckart, and C. Royer, and then proceed to direct payment to Catherine Henderson, and Nathaniel Watson’s executor with interest until the 31st of January, 1831, and state that “this is,done in consequence of the decision in Shultz’s Appeal, 11 Serg. & Rawle, 182, which decides that where the estate of a deceased person is not sufficient to pay specialties, and simple contract creditors, the creditors by specialty shall have interest up to the payment of their respective debts” and then proceeded to distribute the remain - ingm'oney joro rata among the creditors, by simple contract who had obtained judgments. The appellants have brought this matter again before this court.

The case in 11 Serg. & Rawle, 182, is inapplicable to this case.There, the money was not raised on an execution, nor raised at all so far as we know, but the administrator having ascertained that there woul d not be sufficient assets to pay all the debts, had applied to the court to appoint auditors.

But in this case the money was raised by a sale of lands of Hamilton, and brought into court for distribution. So far as that money would go in the discharge of the debts, they were paid by the levy of that money; and interest ceased on the 24th of June 1825. That part of the decree allowing to Catharine Henderson and Watson’s executors, interest after the 24th of June 1825, is reversed.

It has been contended that because the judge decided against the appellants several years ago, and the appeal then taken, was dismissed, that there is no redress now. It is often right where there is money enough to pay one class of creditors, those by judgments, for example, to pay them, and not detain the money while other creditors who must come after them, are disputing; but if one creditor by judgment thinks himself then agrieved, he cannot appeal till the final decree, and must be heard in this court then, although the court rejected his claim a year before the final decree. The reason*first given by the court, to wit: that no money was due on the specialty, when Hamilton died, has not been even attempted to be supported here, and could not be. Frazer & Dunwoody’s administrator, 1 Binn. 254.

It was also said that the appellants had not brought suit on their agreements, and bond, nor is this necessary. The order of payment is fixed at the death oifthe debtor. A bond creditor took the money from one who had obtained judgments on a simple contract and levied and sold the land. Bank v. Stambaugh’s administrators, 3 Serg. & Rawle, 299. Reed v. the Commonwealth, 11 Serg. and Rawle, 441. Where the claim is for unliquidated damages on articles of agreement a verdict and judgment may be necessa ry to ascertain the sums, but where the agreement, or bond is to pay a certain sum on a particular event, and that event has happened, it is as much a matter of calculation, as if to be paid ata certain time, and that time has arrived. The facts as proved are, that the appellant having doubts about the title of Catherine, one of the daughters, took on the 31st May, 1796, a bond of indemnity for 400/ then paid, and afterwards, in 20th may, 1800, Catharine, and her father, representing her as of age, executed a release. She afterwards proved that she was at that time above eighteen, but under twenty one, and recovered her share. At, that time, her father received three hundred pounds. The measure of damages on eviction is the purchase money, and interest from eviction, when there is no fraud. Probably Hamilton thought, as. well as the appellants, a woman is of age at eighteen, an opinion two common, and originating from our act of assembly directing female children to be bound as apprentices till that age.

The appellants then are entitled to 400/, 1066,66

And interest from 16 May, 1825, the time judgment in ejectment was confirmed, till 24 June 1825, when the money was raised, 6,89

The costs on the ejectment 327,48

Counsel fees for two trials in Common Pleas and Supreme Court. 200,00

Costs in Supreme Court. 40,97

Mesne profits agreed to be 300,00

1743,00

The court direct that proof be received as to whether the judgment of Grayson assignee of Whitaker executor of Bay, was on a bond in which George Jenkins was the principle and J. Hamilton the surety, or whether Hamilton was Me principle debtor. The paper filed on the affidavit of Wm. Jenkins being in the hand writing of the counsel in the cause, although not good as an affidavit, yet considered as a paper signed and filed, by William Jenkins, one of the assignees of G. Jenkins, and which disclaims all right to the money, is enough to put us on further inquiry. It was said the administrators of G. Jenkins, were entitled to this money, but this is not so, unless the assignees of G. Jenkins have paid all the debts he owed at the time of the assignment in trust for his creditors. Notice for taking depositions must be served on the assignees of G. Jenkins, and also on his administrators.

And this sum on Grayson’s judgment to be retained until the hearing of that matter.

That the appellants receive the amount above stated, of seventeen hundred and forty-two dollars, and that the remaining sum except the amount of Grayson’s judgment, be distributed according to the decree of the court, except that the interest of the judgment of Catharine Henderson, and Watson’s executors, is not toba calculated after the 25th of June, 182 5.


text:
    BACHMAN against REIGART and another assignee of HAMILTON.
    IN ERROR.
    IVhere a submission to arbitration was in an amicable action in case, of “all matters in variance in the above suit,” an award for “two hundred and seventeen dollars, as a compensation for having built upon the ground” of plaintiff, “and that the alley between the late dwelling of” plaintiff “and the house of” defendant, “as also the pump and well of water,” &c. “be enjoyed In common between” plaintiff and defendant, aud that the defendant “pay one hundred and seventy-nine dollars, amount of former costs as per bill, together with the costs of the present suit,” is a bad award. The action entered, was by thé agreement entitled in case,- and an intent is, therefore, manifest to submit nothing that might not be adjudicated under a declaration in that form.
    Where such submission was indorsed “under the arbitration law of 1810,” it is an express declaration, that the proceedings are under that act, which in terms restrains the submission to “matters in variance in such suit or action between the parties;” and such award under such submission is void.
    In case of discrepency between the submission to arbitration, and the entry made of it by the prothonotary, the former must prevail.
    Error to the Court of Common Pleas of Lancaster county.
    Error was brought by the plaintiff in error, who was defendant below, to reverse a judgment entered on a report of arbitrators against him.
    The submission was in the following words:
    “Amicable action on the case. We do agree to submit all matters in variance, in the above suit, to Casper Shaffner, jr. Jacob Sherer and John Whiteside, or any two of them, who are to audit the same, and make report to the next Court of Common Pleas for the county of Lancaster. Exparte rule on one days notice.”
    This agreement was indorsed “under the arbitration law of 1810.”
    The following entry was made on the docket:
    ‘ ‘Amicable action on the case. And now, January 2d, 1821, by agreement of the parties, in writing filed, all matters in variance in this suit between the parties, are submitted to Casper Shaffner, jr. Jacob Sherer and John Whiteside, Esquire, or any two of them, who are to audit the same, and make report to the next Court of Common Pleas, for the county of Lancaster, and are to meet at the house of John Bachman in Lancaster, on Wednesday the 3d of January instant, at 3 o’clock, P. M.”

      The arbitrators made the following report, on which judgment Was entered:
    “We, the subscribers, having ' met and heard the parties, and the proofs by them adduced, do award, in favor of the plaintiffs, and find for them the sum of two hundred and seventeen dollars, as a compensation for having built upon the ground of William Hamilton, and that the alley between the late dwelling of William Hamilton in West King street, and the house of John Bachman, as also the pump and well of water in the back yard, on the line between said lots of Hamilton and Bachman, be enjoyed in common, between them and their heirs and assigns, and that the defendant pay one hundred and seventy-nine dollars and fifty-eight cents, the amount of former costs, ás per bill, together with the costs of the present suit. ”
    Several errors were assigned, the following only are material to be stated:
    “1. The referees have awarded beyond the submission of the parties, and have found damages for an alleged encroachment, committed on the lands of William Hamilton, over which they had no control, and have attempted to transfer to defendants certain rights, over the real property of the plaintiff not submitted to them, and have also found costs not incurred in this nor in any other suit between the same parties.
    “2. The whole proceedings having been under the act of 2lst March, A. D. 1806, the agreement to refer should have been proved, by the subscribing witness, before it Was filed by the prothonotary.

      “3. There was no notice served on the plaintiff in error, of the award, according to the provisions of the act of the 25th of March, A. D. 1806.”

      Champneys for the plaintiff in error.
    The form of action is case, and under that form of action no award could be made transfering a right to the realty. In an action on the case, nothing can be submitted, except what could be recovered in that action. If the award exceed the submission, it is plain that it is void. 1 Saund. n. 1.216. 1 Bac. Jib. 213, 214.222, 225. Kyd on award, 142. 143. 157. 195. Pratt v. Hacket, 6 John Rep. 14. He contended that the submission was Under the act of 1806, Purdon, 44.- and not under the act of 1810. Indorsing the submission “under the arbitration law of 1810,” could not change the character of the agreement, or give it a character which it did not possess. It Was obviously the intention to make the award, final, which, of course, it would not be, under the act of 1810. That the submission, being under the act of 1806, the proceedings were erroneous, inasmuch as there was no proof of the execution of the submission before it was filed, nor was a copy of the award served on the defendant as is required by that act.

      Rogers for the defendant in error.
    The remedy of the defendant below, if he were dissatisfied with the award, was by appeal. He contended that this award could be enforced by execution, and it was therefore good. That it was competent to the defendant to Submit causes of aetion, real and personal, in the same suit, and he was concluded by his submission. Massey v. Thomas, 6 Binn. 333. Davis v. Havard, 15' Serg. 4* Rawle, 165. Harris’ admrs. v. Harris’ admrs. 6 Binn. 422. Hewitt v. Ferman, 16 Serg. 4’ Rawle, 135. >
   The opinion of the court was delivered by

Gibson, C. J.

The distinction between'a reference 'of all matters in dispute between the parties in the cause/' and a reference 'of all matters in dispute in the cause between the parties,’ has been thought too nice for the general understanding; and to effect the object of the former more certainly; it has been recommended by judge Buller, that the reference be 'of all matters in variance, between the parties’ omitting the words 'in the cause,’ and of the latter, that it be 'of all matters in dispute in the cause omitting the Words 'between the parties:’ thus making the distinction between the parties and the cause more striking. Now if a compliance with this recommendation can serve to make the meaning of the parties more palpable, we have the benefit of it, the agreement containing a submission "of all matters in variance in the above suit,” without a word being said about the parties. The submission is indeed entered on the docket as "of all matters in variance in the suit between the parties;” but as the prothonotary had no authority to modify the.agreement, the original paper filed' as the ground of the entry, must, in case of a discrepance, be allowed to prevail. Even if the matter stood on the entry, the power of the arbitrators would be restrained by any reasonable construction, to matters in the cause. The action entered was by the agreement entitled in case; and an intent is therefore manifest to submit nothing that might not be adjudicated under á declaration in that form. But not only is money awarded in satisfaction of the costs of a former action, as well as damages sustained from an intrusion into the plaintiff’s ground, but an alley, a pump and a well, are directed to be enjoyed by the parties in common. It would require little to shew that these matters could not be joined in any form of action. But another ingredient in this reference shews conclusively the nature of the matters intended to be r. fc ■ •'Hod, the proceedings were declared to be under the act of ISIO, which in terms restrains the submission to “matters in'vn’N ca in such suit or action between the parties;” and hence it was held in Shoemaker v. Meyer, 4 Serg. & Rawle, 452, that a variance between the terms of submission expressed by the parties, and those prescribed by the act, is immaterial, as the arbitrators must be guided by the latter. In Steigleman v. Wolfersberger, 5 Serg. & Rawle, 167, where the same point was ruled, it was held, that as the arbitrators perform the functions of both court and jury, the inquiry is, whether they have confined themselves to the matters in the cause, and done what a court and jury might do. An award, then, is not to be sustained where a verdict finding the same matters could not. By no other construction could the provision which contemplates a comparison between the award and a verdict on appeal, be rendered effective, as it would be impossible to say which of the two was more favorable to tho appellant in order to determine the question of costs. Besides the award is to have the effect ol a judgment till abated on appeal, but how could it be so abated, if the'arbitrtators were allowed to adjudicate what could not be review-, ed in a trial according to the course of the common law? It is utterly impossible by any joinder of counts to enable a jury to find a bill of costs for the plaintiff as well as damages for building on his ground, and at the same time to settle the right, and direct the enjoyment in common of an alley, a pump and a well. Whatever, then, be the form of the action, it is clear the arbitrators determined matters that are foreign to the cause, and transcended the power* delegated to them by the submission and the law.

Judgment reversed.


author: Kennedy, .1.

text:
    GOCHENAUER against GOOD.
    IN ERROR.
    ffeither the books of an incorporated bank, nor copies of them; are admissible 5«s evidence against any other than the bank, without proof of the entries in the book's and the clerk by whom the entries were made, if living;, and within the jurisdiction of the court, is the proper person to make such proof) if dead, or out of the jurisdiction of the court, proof may be made of the hand writing of the clerk.
    It seems that an examined copy, taken from the books of a bank located at a great distance from the place of trial, or where they are required, to be in different places at the same time, with proof that the original entries were made by an officer of the bank, proved by himself, if to be found, and if not with proof of his hand writing, is evidence.
    In an action by one endorser against another, where each had paid a moiety of the debt, to recover from the defendant the amount paid by the plaintiff, cm account of the defendant having a judgment given to him by the principal debtor, to indemnify him against liability, under which the plaintiff alleged he had obtained the full amount of the debt, such judgment, and a paper executed at the time it was given, declaring that the judgment was given for such indemnity, are evidence, as is also proof that the defendant had received a large sum under such judgment out of the estate of the principal debtor, although such judgment of indemnity may include other debts. It was for the jury to determine whether the money received, was applicable to 9uch debt, and proof that the money was received under thejudgment, casts upon the defendant the burden of proving that the money was received on a different account.
    In such case, the plaintiff may recover on counts for money had and received, paid* laid out and expended, &c.
    Error to the District Court of Lancaster county.
    The action was assumpsit, by Abraham Gochenauer, - against John Good, who had been a joint endorser with him of a note of one Nicholas Marks discounted by the Farmer’s Bank of Lancaster, and which, in consequence of the insolvency of Marks, they had been compelled to pay, each paying the half. The action was brought by the plaintiff, to recover from the defendant the money which he had paid; and on account of an indemnity which Marks had given the defendant, and out of which he had received, as the plaintiff alleged, the full amount of the sum for which they were joint endorsers.
    The first count in the declaration explains the case, and is material to understand the exceptions taken on the trial, it was as follows.

      John Good, was summoned to answer Abraham Gochenauer of of a plea of trespass on the case, and thereupon the said Abraham Gochenauer, by M. M’Kelly, his attorney, complains against the said John Good, Esq. for that, whéreas a certain Nicholas Marks, at the county aforesaid, on the 22nd of February, 1816, by his certain writing obligatory, sealed with his seal, (and which said writing obligatory being in the possession of John Good, Esq. the said Abraham G ochen ayer cannot produce R» the court here,) acknowledged himself to be held and firmly bound unto the said John Good, his heirs, executors, administrators, or assigns, in the sum of $8000, to be paid to the said John Good, or to his certain attorney his executors, administrators or assigns; which said writing obligatory, was, and is subject to a certain condition thereunder written, that if the said Nicholas Marks would well and truly pay, or cause to be paid, to the said John Good, or to his certain attorney, his executors, administrators, or assigns, the sum of $4000, then the obligation to be void and of no effect, or else remain in full force and virtue. And the said Abraham further says, that the said Nicholas Marks, by his certain letter or power of attorney, authorized and empowered any attorney of any court of record of the commonwealth of Pennsylvania, to appear for him, the said Nicholas, and to confess judgment against him, the said Nicholas, for the amount of the pen-penalty of the aforesaid bond: In pursuance of which letter or power of attorney, judgment was entered in the court of Common Pleas for said county of Lancaster, to January term, 1816. No. S99. Reference thereto being had will more fully appear. And the said Abraham Gochenauer further says, that on or about the time of the sealing and delivering of the aforesaid obligation, th$ said John Good, Esq. under his hand and seal, at the county aforesaid, did execute a collateral instrument of writing, wherein he, the said John Good, Esq. did covenant that “the aforesaid bond or obligation, with the warrant, was so made and executed to him,” the said John Good, Esq. “for the purpose of securing and indemnifying him,” the said John Good, “against, or for, on account and by reason of being security with, and endorser for the said Nicholas Marks, for sundry sums of money, by him, the said Nicholas, borrowed and obtained on loan at the Farmers’ Bank of Lancaster, and from sundry individuals or persons.-’7 And he, the said John Good, Esq. in the instrument of writing last mentioned aforesaid, doth further covenant and promise, that in case the said Nicholas Marks do and shall well and . truly pay and satisfy the several debts, sum and sums of money, and all interest thereon, for which the said John Good became bound, with and for him as aforesaid, that then, and from thenceforth, the said bond or obligation, together with the warrant to confess judgment thereon, shall cease and be utterly void and of none effect, and be. surrendered and delivered up to him, and satisfaction be entered on the record thereof, in case the same shall be entered on record,” which said last mentioned instrument of writing, executed as aforesaid, by the said John Good, Esq. the said Abraham Gochenauer brings here into court. And the said Abraham Goche?iauer further says, that in consideration of the aforesaid writing obligatory, executed by the said Nicholas Marks as aforesaid, in' favor of the said John Good, Esq. he, the said John Good, became liable on account of the said Nicholas Marks for the sum of $1000, by writing or endorsin'gbis, the said John Good's name, oñ a note of'hand, or promissory note, dated the 19th March, 1816, at the county aforesaid, whereby the said Nicholas Marks promised to pay at the Farmers' Bank of Lancaster the sum of @1000 to the order of the said John Good, Esq. And the said Abraham Gochenauer further says that the last mentioned note of hand, or promissory note, was renewed, according to the custom of the incorporated banks of the commonwealth of .Pennsylvania, on the 25th June, 1816, at the Farmers Bank, aforesaid for the sum of ,@.950, át which said renewal the said John Good, Esq. and a certain Abraham ,Shenk became endorsers for the said Nicholas Marks. And the said Abraham Gochenauer further says, that the last mentioned note of hand, or promissory note, was continued according to the custom of the said Farmer's Bank, with the said John Good, Esq. and the said Abraham Shenfe as indorsers untill the 1st April, 1817, when the said note of hand, or promissory note, was renewed, aceording to the custom of the said Farmers' Bank, on the. said first of April, for the suni of eight hundred and fifty dollars, at which last mentioned renewal, the said John Good, Esq. and the said Abraham Gochenauer, (the present complainant) became endorsers; andthe said last mentioned note of hand, or promissory nóte, was continued in the said Farmers' Bank, according to the custom of the said bank, with the said John Good, Esq. and the said Abraham Gochenauer as endorsers, until it was protested on the 17th October, 1820, for the non-payment of the balance then due, which amounted to a great sum of money, to wit: @580. And the said Abraham Gochenauer further says, that on account of the aforesaid liability of them, the said John Good, Esq. andthe said Abraham Gochenauer, the said Farmers Bank of Lancaster, on the 27th of August, 1821, at the county aforesaid, obtained judgment against them, the said John Good, Esq. and the said Abraham Gochenauer, for the aforesaid sum of @5S0, together with interest and costs, of which last mentioned’ judgment the said Abraham Gochenauer was compelled to pay the sum of @297, on the 22nd of January, 1823, (although the said John Good, Esq. by the said writing obligatory, executed by the said Nicholas Marks, as aforesaid, had received full value and compensation for the whole .amount of the said judgment, obtained by the said1 Farmers' Bank, as aforesaid,) whereby the said Abraham Gochenauer hath sustained damage and injury to the amount of @500, and therefore he brings suit, &c.
    The plaintiff added counts for money had. and received; and for money paid, laid out, and expended.
    The following bills of exception were taken upon the trial of the cause.

      1. The cause being at issue, and the jury sworn, the plaintiff,, to maintain the issue on his part, having given in evidence the record of a suit by the Farmers’ Bank of Lancaster v. Nicholas Marks, John Good and Abraham Gochenauer, also an accomhiodation note, dated 15th August, 1820, for $580, payable 60 days after date, at the Farmer’s Bank of Lancaster, drawn by Nich-l olas Marks, and endorsed by John Good and Abraham Gochenauer, and the protest of the same, dated the 17th of October, 1820, also the record of the f. fa. issued on the said judgment entered to January term, 1823, No. 97, also, two receipts from the sheriff of Lancaster county; one bearing date the 22nd January, 1823, for the payment of $100, and the other the 29th of January, 1823, for two hundred and Thirty-six dollars and forty cents, marked No. 182, and having proved that he had paid a moiety of the debt and costs on the said fi. fa. the plaintiff then offered the contents of a paper, marked A, as follows, “the plaintiff offers the bank statement, in which it will appear that Nicholas Marks had a note discounted, indorsed by John Good, Esq. for six hundred dollars, on March 24, 1812, which was enlarged on the 23 June, 1812, to fifteen' hundred dollars, and on the 22nd December, 1812, enlarged to twenty one hundred, which note was renewed from time to time, with the same endorser, John Good, until the 25th of June, 1816, when it was renewed, indorsed by John Good, Esq. and Abraham Shenk, for nine hundred and fifty dollars, and so continued, with the same endorsers,.until the first April, 1817, at which time it was renewed, and endorsed by John Good, and Abraham Gochenauer for eight hundred and fifty dollars, and continued with the same endorsers, until the 17th October, 1820, at which time it was protested for $580, and suit brought against Nicholas Marks, John Good and Abraham Gochenauer. The plaintiff offers, in addition, the record of a judgment, entered to January term, 1S16, No 399, for four thousand dollars. John Good v. Nicholas Marks, in connection with a collateral instrument of writing, given by John Good at the time of the said judgment, to wit, the 22nd February, 1816, in which the said judgment is declared expressly to have been given as a mere indemnity for his, John Good’s being indorser in the Farmers Bank of Lancaster, and security for money obtained of divers persons by the said Nicholas Marks-’ ” which was objected to by defendant’s counsel; and on argument, the court sustained the objection, to which the plaintiff’s counsel did then and there except, and prayed The court to seal this, their bill of exceptions, which is done accordingly.
    2. The plaintiff then offered in evidence, the contents of a paper marked B. as follows, “The plaintiff offers the bank statement, to shew when Abraham Gochenauer became indorser on the note to the.Farmer’s Bank of Lancaster, for Nicholas Marks,” which was objected to by defendant’s counsel; and on argument, the court Sustained the objection, to which the plaintiff’s counsel did then and there except, and prayed the court to seal this, their bill of exceptions, which is done accordingly.
    3. The plaintiff then offered to prove “that John Good, the defendant, has received three thousand dollars of, the estate of Nicholas Marks,” which was objected to by defendant’s counsel, and the court sustained the objection, to which the plaintiff’s counsel did then and there except, and prayed the court to seal this, their bill of exception, which is done accordingly.
    The verdict wasfor the defendant, and the plaintiff assigned for error respectively, these three bills of exception.

      Champneys for the plaintiff in error
    argued that the evidence ought to have been received under the money counts in the declaration, which were sufficient without the special count, Morris V. Taurin, 1. Dal. 51. Repalge v. Emory, 3 Dal. 51. Mas-singer v. Solms, 5 Serg. fy Razóle,4. There is such a privity between Gochenauer and Good, that the former should be considered in the character of a surety, and as such entitled to recover from the latter. Hays v. Ward 4 John. ch. rep. 133. 10 John. Rep. 524. 3 Slarkie’s Ev. 103, Piggot v. Thompson, 3 Bos. d’ Pul. 147. The receipt by Good of the fund is sufficient to make him liable to any person, who was damnified by Marks in the transactions for which it was pledged to him.

      Montgomez’y for the defendant in error.
    The special count in the declaration contains no assumpsit, and the plaintiff is left to rest on the money counts alone. The evidence offered must be considered with reference to these counts.
    The bank statement was not evidence, it was offered isolated and alone, without any proof of its authenticity. It was but secondary evidence;the notes themselves should have been produced. Where an original is of a public nature, an examined copy is evidence, but this rule does not apply to the books of a bank which is convenient to the place of trial. When the bank is located at a great distance, it may be different. JBut the books themselves would not be evidence without proof that they were authentic. Farmer’s Bazik v. Weidner 13 Serg. Razóle, 256. Philadelphia Bank-?. Officer, 13 Serg. fy Razjole, 49.
    The judgment against Marks in favor of Good, was connected with the instrument of writing which was collateral to'it. That instrument was not prospective in its operation and could not refer to a note which was not in existence at the time, and with which it was altogether unconnected except perhaps by the bank statement which was properly rejected by the court. And besides a note taken in renewal of another is a satisfaction of the first. Slaymaker v. Cunda leer’s Ex’rs. 10 Serg. Razóle, 82.

      This evidence was irrelevant at the time it was offered: if any subsequent evidence then would render it relevant, the rejection of it, when it was offered, before such evidence was given, is not erroneous, Morrison v. Berky, 7 Serg. 4’ Rawle, 238, Bisenhart v. Slay maker, 14 Serg. 4* Rawle, 246, Weidler v. The Earmer’s Bank, 11 Serg. 4* Rawle, 139. The same remark applies to the evidence contained in the third bill of exceptions.
    The court cannot judge of all the bills of exception collectively; the bills must be examined separately, and if they are not evidence, severally, they are not evidence jointly. Harwood v. Ramsey, 15 Serg 4* Rawle, 31.
   The opinion of the court was delivered by

Kennedy, .1.

The plaintiff in error, who was also the plaintiff below, and the defendant had been the joint endorsers of an accommodation note in the Farmer’s Bank of Lancaster, for Nicholas Marks. This note was protested for non-payment, Nicholas Marks, as drawer, and the plaintiff and defendant as indorsers of the note, were all sued by the bank, and a judgment obtained against them for five hundred and eighty dollars, with interest thereon, from the 17th of October, 1820, beside the costs of suit, which was paid equally by the plaintiff and defendant; the drawer Nicholas Marks being insolvent, and unable to pay any part of it. The plaintiff however alleged, that the defendant had taken a judgment bond of indemnity from Nicholas Marks, for and on account of his having indorsed this note. That he had entered up judgment upon the bond, and had received monies from the estate of Marks, exceeding inamount the whole of the judgment obtained against them as the endorsers of Marks, and that the defendant was therefore bound to reimburse him.

This action was brought to compel the defendant to do so. In the declaration the plaintiff has given a particular statement of the transaction in the first count, to which he has added a count for money had and received and another for money paid, laid out and expended.

The plaintiff, on the trial of the cause, after having given in evidence the record of the judgment obtained by the bank against Marks, the defendant and himself, upon the note, as also the note itself, and ais.Ji.fa. having been issued upon that judgment against them, and of his having paid to the sheriff on that fi. fa. three hundred and thirty-six dollars and forty cents; then offered in evidence, “the bank statement,” by which it would have appeared that Nicholas Marks had a note discounted, indorsed by the defendant for six hundred dollars, on the 24th of March, 1812, and that it was continued by renewal from time to time with the name of the defendant as endorser thereon, until the first of April, 1817, when it was endorsed by the defendant and the plaintiff jointly, and renewed for nine hundred and fifty dollars, and continued by renewal from that time with their endorsements down to the 17th of October, 1820, when after having been reduced in the interim to $580 it was protested for non-payment. And in addition to this, he offered likewise in evidence, the record of a judgment entered upon a judgment bond in favor of the defendant against Nicholas Marks, the drawer of the note, to January term, 1816 for four thousand dollars, in connection with an instrument of writing, of the same date, with the judgment bond, signed by the defendant, declaring that the judgment bond was given to him by Nicholas Marks as an indemnity for his, the defendant’s, being the endorserof Marks in the Farmer’s Bank of Lancaster, and security for monies obtained of divers persons by the said Nicholas Marks, which was objected to by the defendant’s counsel, and the testimony overruled by the court; to which the plaintifi’s counsel excepted and this forms the first error assigned.

By what is called the “Bank statement”-must be understood a copy, or abstract from the bank books, or the bank books themselves, or whether the one or the other, I think neither were admissible as offered in evidence. In Philadelphia Bank v. Officer, 12 Serg. & Rawle, 49, it was decided by this court, that the entry in the books of an incorporated bank was not admissible as evidence to shew a deposite of money, in a suit to which the bank was not a party, unless it be first proved that the clerk who made the entry was dead, or beyond the reach of the process of the court, although it was admitted that the entry offered tobe read in evidence in that case, was in the hand-writing of James Marshall, who was also admitted to have been a clerk of the bank at the time of making it. I take it to be a general and established principle, that neither copies of the books of an incorpora ;ed bank, nor the books themselves, are admissible in evidence against any other than the bank, or without proof being first mrde, by whom the entries in the book were made: and that the proper witnesses to make such proof are the clerks by whom the entries were made, if to be found within the jurisdiction of the court, but if dead or out of the jurisdiction of the court, proof may be made of their hand-writing. To say that the books only when duly proved, and not copies of them, shall be admitted in evidence, might be to establish a rule that would be attended with great inconvenience; as for instance, when the bank is located at a great distance from the-place of trial, and the books in daily use and demand, for the ordinary transactions of the bank with the public, or where the production of them was required at different places at the same time. In these cases it appears to me that it would be almost if not alto'gether impracticable to comply with the rule, and therefore an examined copy with proof that the original entries were made by an officer of the bank, and this proved by the officer himself, if to be found, and if not, then upon proof of his hand-writing, might I think, be fairly admitted in evidence. Ridgeway v. the Farmer’s Bank, 12 Serg. & Rawle, 263. Bell et al. v. Keely, 2 Yeates, 255.

But the record of the judgment and the writing of the defendant explaining the purpose for which the judgment was given by Marks, ought to have been admitted in evidence; because they had obvious bearing upon the ground of the plaintiff’s claim: and it would have been for the jury to have decided after hearing the whole evidence, whether the judgment offered to be given in evidence, was taken by the defendant for the purpose of indemnifying him against the amount of the note endorsed by him and the plaintiff, had paid by them for Marks, and whether again the defendant had not received the whole amount of the note so endorsed and paid under the judgment. And if the jury had been satisfied that it was so, the plaintiff would have been entitled to their verdict. The record of this judgment, and the written declaration of the defendant, shewing the object of the judgment formed quite a prominent link in a chain of evidence to establish the plaintiff’s claim, and ought therfore to have been'admitted. There was error in rejecting it.

What I have already said in regard to the court below refusing to admit the bank statement in evidence, dispose of the second error assigned by the plaintiff, and shews that the court were ■ right in rejecting it again when offered the second time.

The third and last error arises out of a third bill of exception, The court over-ruled proof offered by the plaintiff, that the defendant had received three thousand dollars of the estate of Nicholas Marks, the drawer of the note, .

I can see no good reason for rejecting this proof. For it is a part of the three thousand dollars which the plaintiff offered" to prove had been received by the defendant, of the estate of Marks, were received by him for the purpose of paying the amount of the note endorsed by the plaintiff and defendant or to indemnify against or for having paid the same, it would have been money held in trust for the plaintiff, so far as he had contributed to the payment of the note, and he would have been entitled to recover it from the defendant under- the money counts in his declaration. To justify the jury jin finding that as much of the three thousand dollars as would have satisfied this note or the amount of money paid by the defendant and plaintiff in discharge of it, was received by the defendant for that purpose, it would have been sufficient for the plaintiff to have proved merely that the defendant received the money, out of the estate of Nicholas Marks, without proving-on what account he received it, or a different amount from that alleged by the plaintiff. This I think would have been fair, because if received on a different amount, the defendant must know although the plaintiff might not. At all events, the proof was proper testimony to have gone to the jury, and it would have remained with them to have decided as a matter of fact, for what purpose the defendant had received the money. I think there was error also in rejecting this proof offered by the plaintiff. The judgment of the district court is reversed and a venire de novo awarded.