text:
    Hart & Co.’s Appeal.
    Where the act of Assembly, erecting a new county out of parts of old counties, made no provision for the preservation and continuance of liens upon lands cut oif from the old, and made a part of the new county, by said act: the lien of a judgment on the lands so cut off and made a constituent part of the new county, is not preserved and continued for a longer period than five years, unless regularly revived by scire facias in the old county in which it was originally entered: although levies without sales, were made on said lands in the new county, under executions issued from time to time in the old county.
    In such case, a judgment entered in the old county, after the erection, but before the organization of the new county, is well entered.

      May 24. This was an appeal by Thomas Hart, James H. Hart, and William B. Hart, from the decree of the Court of Common Pleas of Clinton county, confirming the report of the auditor in the matter of the distribution of the moneys made by a sheriff’s sale of the real estate of John Moorhead and Robert Irwin.
    It appeared from the paper-book and the report of the auditor, that Thomas Hart, James H. Hart, and William B. Hart, trading under the firm of Thomas Hart & Company, obtained a judgment for $3,400 against John Moorhead and Robert Irwin, trading under the firm of Moorhead & Irwin, which was entered on the 24th of June, 1839, in the Court of Common Pleas of Lycoming county, to September Term, 1839, No. 19.
    The new county of Clinton was erected on the 21st day of June, 1839, but not organized for judicial purposes until some time after the judgment of the Harts, the appellants, was entered in Lycoming county. The act of Assembly erecting the said county of Clinton into a separate county, was silent upon the sub-, ject of preserving and continuing liens on the lands to which they had originally attached in Lycoming county, after they were cut off from Lycoming, and made a constituent part of Clinton county, by the said act. On the judgment of the Harts, entered as stated in Lycoming county, “ a writ of fieri facias was issued, under which $800 were made, and also a levy made upon two horses and two wagons,” as stated in the auditor’s report, without further explanation. • A writ of venditioni exponas, to December Term, 1839,.No. 58, was then issued; on which $800 were paid, and the writ “ stayed by plaintiff’s attorney.” A writ of alias venditioni exponas was then issued to May Term, 1840, No. 76, which was returned for want of property. A writ of pi. venditioni

      exponas, issued to August Term, 1840, No. 132, was “stayed.” A writ of fieri facias, issued to November Term, 1840, No. 84, was also returned “stayed.” A writ of al. venditioni exponas to February Term, 1841, No. 39, was returned, levied; inquisition “held and extended.” This levy was stricken off, on the 10th of September, 1841, at the costs of the plaintiffs. To a writ of fieri facias de novo, to February Term, 1841, the sheriff returned, levied on real estate as per lacle of writ; inquisition held, and property extended. A rule to show cause why this inquisition should not be set aside, was granted, and exceptions filed. A writ of venditioni exponas to May Term, 1842, No. 64, was then issued; to which the sheriff made the same return as above stated. A rule to show cause why the inquisition in this case should not be set aside, was also granted. This rule was continued 'from term to term, until May Term, 1845; when, on the 6th of May, the following entry on the record of the rule was made: Wot to le Irought forward. It also appeared, that a great number of judgments against John Moorhead and Irwin were obtained and entered in the Court of Common Pleas of Clinton county, after its organization.
    Amongst others, Jesse Hall obtained a judgment for $1,000, on the 19th of December, 1842, against John Moorhead, Robert Irwin, and one Alexander McCormick, which was entered of record to December Term, 1842, No. 144. This judgment was revived by confession on the 17th day of December, 1844, of February Term, 1845, No. 7. Under a writ of fieri facias issued upon this judgment to May Term, 1846, No. 77, the sheriff levied upon all the real estate of Moorhead & Irwin, in Clinton county, and under a writ of venditioni exponas to December Term, 1846, the said sheriff sold the same. The amount for distribution under the sheriff’s sale was $2,845. The amount of the judgment of Hart & Company, the appellants, against Moorhead & Irwin, at the time of the sheriff’s sale, was $1,885.13, it having been reduced by several payments. This judgment was not revived by scire facias within five years ; and the auditor, in making distribution, rejected it for that reason. The court below (Woodward, P. J.) confirmed the report of the auditor, and decreed distribution accordingly. This decree was affirmed here, for the reasons given in the opinion of his honour, Judge Woodward, which was as follows:—
    “ Two exceptions are taken to the distribution and appropriation of moneys as made by the auditor. The first relates to the rejection of the judgment of Hart & Co. against Moorhead & Irwin, No. 19, September Term, 1839, and is thus stated: ‘Although that judgment had not been revived within five years previously to the date of the sale, yet as the act of Assembly erecting the county of Clinton made no provision for the continuance of the lien of it on land in Clinton county cut off by the act aforesaid, the lien of said judgment continued without revival.’ The judgment was entered in the Common Pleas of Lycoming county, on the 24th June, 1839, and never revived. Clinton county was erected into a separate county on the 21st day of June, 1839; but as it was not organized until some time after, the judgment would seem to have been well entered in Lycoming county, and the lien of it for five years on lands in Clinton county continued, and had it been revived in Lycoming, the lien might have continued unimpaired to the present time : West’s Appeal, 5 Watts, 87. But the exception to the auditor’s rejection of this judgment is supported in argument by an' expression of Judge Rogers, in West’s Appeal, where he observes: ‘ As the act is silent as to the manner of reviving such judgments, it follows; either that the judgments remain liens as at common .law previous to the act of 4th April, 1798, or that they must be revived in the same manner as is required under that act and its supplements in ordinary cases.’ The argument makes these expressions mean that the lien of the judgment is continued on lands in the newly erected county, whether revived or not. If not revived, it is continued by force of the common law. If revived, by operation of the statutes. And we are informed of a rumour that the Supreme Court have, in some late and as yet unreported case, solemnly decided this view to be law. Now, it is to be observed that in West’s Appeal there was no necessity for resorting to the. common law for the continuance of the lien, for there had been revivals of the judgments, agreeably to the acts of Assembly in such cases provided. But I do not think the argument interprets properly the expressions of the judge. He is speaking of an act of Assembly which erected a new county out of an old one, without providing at all for the continuance or transfer of liens from the old to the new county, and he says in effect, that if the party holding such liens be not entitled and required to revive them from time to time in the old county, they must be held to continue as at common law, before the act of 1798, ‘ for we cannot suppose it to have been the intention of the legislature to interfere with vested rights.’ But he does not decide that the holder of such liens cannot or should not revive them. The alternative is, that the holder must have the benefits of the statute or of the common law to preserve his vested rights — not that he is to avail himself of either at his election — and then, upon the facts in West’s Appeal, it is decided that his remedy is under the statutes. And it seems to me it must be so, for the act of 1798 uses the most comprehensive terms in the negative form: 4 Nojudgment shall continue a lien on the real estate of the person against whom such judgment may be entered during a longer term than five years, unless’ revived, &c.; whilst the act of 1827, in terms equally comprehensive, both affirmative and negative, requires all judgments to he revived once in five years, whose liens are to be continued. By these acts 4 a remedy is provided’ — a 4duty is enjoined,’ and things are ‘directed to be done’ to preserve the lien of all judgments, and therefore by force of the act of 1806, 4 to regulate arbitrations,’ sec. 13, the common law remedy is taken away. The judgment must be revived, according to the acts of Assembly, or its lien will expire. Such is the expressed will of the legislature, and this court can neither disregard or change it. Nor am I willing to credit any rumour of a decision of the Supreme Court that .would conflict with the manifest spirit and plain letter of two salutary acts of Assembly. And there was no more difficulty in the way of a revival of this judgment, than of those in West’s Appeal. Two scire facias returned nihil, would have entitled the plaintiffs to a revival of their judgment, but they chose to lie by, or to content themselves with issuing executions, and a loss of their lien is now the reward of their inactivity.
    44 The other exception relates to the judgment of ITeberton & ITibler, and is groundless. Their judgment was entered 19th February, 1840. A scire facias to revive it was issued the 1st day of February, 1845, which is still pending. By the terms of the act of 1827, this scire facias saves the lien. The money cannot be taken out of court till judgment is rendered in the issue that is pending, but the lien is continued for whatever amount shall finally appear to be due, and the auditor was right in including it. The report of the auditor is approved, and distribution decreed accordingly.”
    From this decree this appeal was taken; and the exclusion of the judgment of the Harts assigned for error.

      Patterson and Masser, for appellants.
    Burnside, contó.

      June 6.
   Rogers, J.

Tbe court order this decree to be affirmed, for tbe reasons given by Judge Woodward.

Decree affirmed.


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    McDowell et Ux. v. Potter.
    The statute of limitations begins to run against a claim on an attorney or his administrator for money collected for a client, from the time the client has notice or means of knowing of the receipt of the funds: and the onus is on the attorney to prove such notice or means of knowledge.
    The husband suing in right of his wife, cannot take advantage of the exception in the statute of limitations in favour of femes covert.
    In error from the Common Pleas of Centre county.
    This was an action of assumpsit by McDowell and wife, to recover from tbe defendant’s intestate a sum of money collected by him as attorney for plaintiffs.
    Plea: tbe statute of limitations.
    It appeared that a legacy bad been collected by defendant’s intestate, who died more than six years before this suit was brought. Tbe legacy bad been bequeathed to plaintiff’s wife; and they offered to prove that McDowell, tbe husband, bad declared bis intention not to take tbe legacy for bis own use; and they also offered some evidence tending to show ignorance on tbe part'of plaintiffs, of tbe receipt of tbe legacy by defendant’s intestate; which tbe court overruled.

      Miles, for plaintiff in error.
    1 Miles, 204; 2 Wb. 154; 2 Barr, 72; 6 W. & S. 290; 5 Barr, 157; 5 Whart. 142; 7 S. & R. 235.

      Burnside and Hale, eontrh.
    The statute is a bar, and tbe evi- ' dence does not suspend it: 11 S. & R. 140; 2 W. & S. 122, 438; 1 Wb. 66 ; 10 W. 172; 6 W. & S. 213. Tbe relation of attorney and client was dissolved by death; and from that time tbe statute commenced running: 15Wend. 302; 4Barr, 56; 4Whart. 455; 1W. & S. 112; 1 W. 275; 9 Pick. 212; 5 W. 87; 1 lb. 389.

      June 5.
   Rogers, J.

If tbe case depended on lapse of time merely, tbe action, which is assumpsit, would be barred by tbe act of limitations; for the money was received by the defendants’ intestate in the years 1835 and 1836, and suit was not brought until the April Term of 1846, a period of about ten years. To the plea of the statute, the plaintiffs rejoin that the defendant was a practising attorney, and as such collected the money in suit for their use, that he neglected to advise them that he had so received it, and altogether concealed the same from their knowledge. The defendant denies this allegation of neglect and concealment, and moreover contends, that if ignorant of the state of the transaction, they had the m§ans of knowledge in their power. This is the substance of the pleadings, on which the parties went to trial.

The point on which the case turns is, when did the statute begin to run; that is to say, did it commence from the time the money was received, or from the time the plaintiffs had notice of it ? That the statute did not begin to run until the defendants were informed of its collection, is the necessary result of several cases which have been ruled by this court. It must be recollected, that this is a contest between attorney and client. In Bredin v. Kingland, 4 W. 423, it is said to be the duty of an attorney, in a reasonable time, to inform his client of the receipt of money, and either transmit it to him, or hold it subject to his order. To the same purpose is Stafford v. Richardson, 15 Wend. 305. The court say, speaking in reference to any attorney having received the plaintiff’s money, he should either remit it to him, or give him notice that he has received it, that the plaintiff may call for it, or order it to be remitted. In Riddle v. Murphy, 7 S. & R. 235, it is ruled, that the act of limitations only commences to run from the time fraud, -if there be any, is discovered or becomes known to the party in interest. So in the case of the Harrisburg Bank v. Forster, 8 W. 16, it is decided that the cashier of a bank cannot avail himself of the statute of limitations to defeat an action on his own note: unless he can show clearly a performance of all his duties in relation to it, by exhibiting the note as due and unpaid to the board of directors.

The authorities cited show that it is incumbent on the defendant to prove notice of the receipt of the money, and without such proof he cannot claim the protection of the statute. The principles ruled in the case of the Harrisburg Bank v. Forster apply here. As in that case, an attorney stands in a fiduciary character, and before he can be permitted to avail himself of the defence, he must prove that he has performed his duty. His omission to do so amounts to such concealment of the state of the business as in contemplation of law is such a fraud as deprives him of the protection of the statute, and makes it necessary to prove payment of the debt due, as in other cases. Although as a general rule the attorney is required to furnish proof of notice to his client, yet I agree he may shield himself against a demand of long standing by satisfactory evidence that with ordinary care and diligence the client might have known that the money had been collected, and was in the hands of the attorney.

The|e are questions of fact of which the jury must judge, depending on a variety of circumstances which it is impossible to enumerate. The onus, be it observed, is thrown upon the defendant. It is said it may be difficult for an attorney to be prepared with the requisite evidence. In some cases it may be, yet the cases in which an attorney.of ordinary care will be exposed to any risk on that account, will be rare; and, at any rate, it is as easy to furnish affirmative proof, and as reasonable to require it, as to hold that the plaintiff shall be compelled to prove negatively that he was altogether uninformed of the receipt of the money. Here the court ruled the plaintiff out of court without any evidence whatever bearing on the preliminary point that the plaintiff was ever apprised of the collection of the legacy. In this, we think the court was in error. The proof, so far as it was given, tended to show, and as such was competent evidence, that the plaintiffs were unaware that the money was in the hands of the attorney, and that they at least had never received it. The burden of proof then, I repeat, is on the defendants. They are bound to show affirmatively either that the plaintiff knew of the collection of the money, or that, with ordinary care and diligence, they might have known it.

It is next contended that Mrs. McDowell, being a feme covert, is within the proviso of the act of limitations, and, consequently, the statute is no bar to her. It is decided that an action on the ease is within the saving clause of the act of 1818, relating to limitations of actions : 2 Whart. 154. Although not within the letter it is within the spirit of’the act, as has been ruled in England and this country. At the time the legacy was given, Mrs. McDowell was a feme sole; but when suit was brought and the money received, a feme covert; but, notwithstanding, we cannot agree that this, the-commencement and prosecution of either suit, was a reduction of the legacy into the possession of the husband; particularly connecting it with the parol proof that it was not his intention to convert the money to his own use. Thus it is ruled that even when the share of the wife is reduced to actual possession, yet if it appear that he did not intend to convert it to his own use, it is in law the property of the wife: Hind’s Estate, 5 Whart. 138. In Timbers v. Katz, 6 W. & S. 290, it is said that the undoubted rule is, that reduction into possession by the husband, of his wife’s choses in action, is in all cases primd facie evidence of conversion to his- own use, but the presumption of intent may be repelled by disproof of the fact in the particular instance.

The rule is, that the law will not cast the ownership on the husband without his consent. If this be so, where the choses of the wife have been reduced to actual possession, much more will the principle apply where they are still in action, and in a course of recovery. Indeed, without the aid derived from the parol proof, I cannot agree that the husband, in suing for its recovery in the original suit in their joint names, and the receipt of the money by the counsel, was a reduction into possession of the husband, which would destroy the right of survivorship in the wife. Then the question arises, whether the defendants are permitted to take advantage of the proviso in a suit by husband and wife, to recover the wife’s choses in action, or is the wife to be postponed to the time she becomes discovert. Although the letter of the act doubtless is so, yet is this construction within its spirit ? The proviso in the act runs thus : “ if any person or persons, who is or shall be entitled to any action of trespass, detinue, trover, replevin, actions of account, debt, actions of trespass for assault and battery, wounding, or imprisonment, action on the case for words, be at the time, &c., within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person or persons shall be at liberty to bring the same actions within such time as are before limited, after their coming to or being of full age, discoverture, of sound memory, at large, or returning into the province, as other persons.”

Now, although the point has not been determined as to feme coverts, that I am aware of, yet it has been in the case of infants and persons beyond seas. Thus, although an infant is excepted in the statute, yet if an infant, by his guardian during Ms infancy, brings an action, the defendant cannot plead the statute of limita•tions: Chandler v. Villett, 2 Saund. 121. The reason given is, that the infant is not bound to wait until he comes of age. A similar point was determined on the statute of fines: 4 Henry 1, ch. 24. The words of the statute are, “ that infants and their heirs shall take their action on entry within five years next after they are of full age of twenty-one years.” On these words it was resolved that an infant may, if he pleases, enter and have his action before he is of full age, and avoid the fine : Plowd. 366; 2 Inst. 619; 1 Leonard, 215.

The- same principle is also ruled as to persons beyond seas. In Wilkinson on the Statute of Limitations, pages 21, 29, it is said, although persons heyond the seas are privileged by the proviso in the statute, which preserves the demand, it cannot be objected that the plaintiff should have returned to England before he had commenced proceeding. The act of Parliament was intended to allow privileges, and not to abridge any right which the persons mentioned in the proviso had; for if they were obliged to return from beyond seas into England, before they can maintain an action here, the statute would not be of any benefit to them, and might in many cases virtually extinguish the demand; as if a person constantly resident in the East or West Indies were to sell goods in England, it might not be worth while for him to proceed to England to bring an action.

In a case in chancery, where it was objected that a person beyond seas ought to return to enable him to commence an action, Lord Hardwick held that the case was not to be distinguished from the case of the infant in 2 Saund. 120, Chandler v. Villett, and therefore he overruled the plea: Ridgway’s Reports, tempus Hard-wick, 284. The same principles apply to persons non,compos, and persons imprisoned, and in all the cases enumerated the defendant cannot plead the act of limitations. But is the law the same as to femes covert ? Can the defendants avail themselves of the act of limitations where suit may be brought by the husband in the name of the husband and wife ? That such suit may be brought during coverture, at the pleasure of the husband, we cannot doubt, but may he delay the suit to any indefinite period during coverture without exposing himself to the plea of the statute ? We think not; because the delay is his fault, which ought not to prejudice the defendant, and the money when recovered belongs to him. It is true that in this case, if the testimony is believed, he has treated the legacy in suit as the property of the wife, but he may change his views in that respect at any time before and after judgment. It is substantially his suit, and while his name remains on the record the defendant is at liberty to plead the act. If he should die and the action survive to the wife, a different question would be presented; but if she should die, ther.e could be no question about it. After his death the wife may within six years thereafter maintain the suit, according to the letter of the act; but under the circumstances as they they now exist on the record, the statute of limitations is a bar to the action. It may be said if she may bring Suit after his death, why not allow her to avow the act before, when she is a party. Simply because in contemplation of law it is not her action, but the action of the husband. It is a privilege personal to himself, and cannot be made to enure to his benefit. Besides, the defendant is entitled to the chance that his interest may never accrue, as she may die before her husband, in which case the chose would be the property of the husband.

Judgment reversed, and a venire de novo awarded.


author: Burnside, J.

text:
    Hastings’ Administrator v. Eckley’s Administrator.
    The deposition of a witness taken in another state, under a commission duly-executed and certified in conformity with the rules of the court out of which it issued, and regularly filed in the proper office, of which due notice, under the rules of court, was given to the attorney of the adverse party, is properly admissible in evidence.
    ' It is not errdr in the court, to leave the sufficiency of the evidence of a parol agreement to the jury.
    In an action for damages for the breach of a parol contract, where the question of the establishment of such contract by the evidence, was left to the jury, instruction by the court to the jury, that if, under the evidence, they found such contract, the action would lie, is right and proper. t

    In error to the Common Pleas of Centre county.

      May 24. This was an action on the case for the breach of a parol contract, brought by Jacob Poop, administrator of Eli Eckley, the defendant in error, against Daniel Hastings, administrator of Thomas Hastings. No declaration was filed; and the cause was tried by consent, under the pleas of non assumpsit and payment, upon the allegation of the plaintiff, that Hastings, in his lifetime, agreed and promised to give to Eckley fifty acres of land, in consideration that he, Eckley, would search for and find the lines and corners of certain lands in which the said Hastings was interested; that Eckley did search for and find the lines an'd corners to the satisfaction of Hastings; but that Hastings had not given Eckley a legal title for the land, according to the terms of the said parol agreement. On the trial of the cause before Woodward, P. J., the plaintiff offered in' evidence the deposition of Christian Roop, taken under a commission issued to the state of Indiana, which was objected to by the defendant: because no notice AYas served of the taking of the deposition; because the second and third interrogatories were leading; and because the deposition vras not duly certified. The plaintiff then proved that a copy of the following notice was served on the 18th of March, 1845, upon the counsel of the defendant:—
    “Eli Eckley’s administrators. Hastings’ administrator. Take notice that the deposition of C. Hoop is filed in the office.
    Signed, A. Gr. Curtin.”
    To “ J. T. Hale.”
    The court thereupon being of opinion that the deposition was regularly taken under a commission duly executed and certified conformably to the rules of court, admitted the deposition, and at the request of the defendant’s counsel, sealed a bill of exception. It appeared that the rule for the commission was entered in the Court of Common Pleas of Centre county, on the 5th of November, 1844, by the plaintiff’s counsel; and that the interrogatories on the part of the plaintiff were filed on the same day. The following were the interrogatories filed by the plaintiff, the answers of the witness thereto, and the certificate of the commissioner appended to the same:—
    “ 1st Interrogatory: Do you know the parties to the above suit, and were you acquainted with Eli Eckley and Thomas Hastings ?
    “Answer: I know the parties to the above suit, and was acquainted with Eli Eckley and Thomas Hastings.
    “ 2d Interrogatory: Were you present at a bargain made by the said Eli Eckley and Thomas Hastings, in relation to the discovery of the lands now owned by the heirs of the said Thomas Hastings, near Bellefonte?
    “Answer: I AYas at a barn-raising on Spring Creek, four or five years ago; Thomas Hastings told Eli Eckley that he would give Mm fifty acres of land, where he, Ely, was then grubbing, for finding certain lines in the barrens. This is the same tract of land owned by the said Thomas Hastings’ heirs, near Bellefonte.
    “3d Interrogatory: What was the agreement of the parties? What services were the said Eli to do and perform for the said Thomas, and what consideration was to be allowed by the said Thomas ?
    “Answer: I understood the agreement as set forth in answer to the second interrogatory. He was to find the lines of said land as aforesaid; and for doing which, was to get said fifty acres of land.
    “ 4th Interrogatory: Did the said Eli perform the agreement on his part; and if yea, what did he do ?
    “Answer: Some time after the conversation aforesaid, I heard the said Thomas 'Hastings say that the said Eli had found the lines of said lands to his satisfaction.
    “ I, Daniel Mace, commissioner aforesaid, do certify that the foregoing deposition was by me reduced to writing, and carefully read over to the said Christian Hoop, and that he affirmed to and subscribed the same as aforesaid. Given under my hand and seal, this 4th day of March, 1846.
    “Daniel Mace, Oom’r. [seal.]”
    The following persons were then called and examined as witnesses on the part of the plaintiff:—
    John Ralph testified in substance as follows: “About eleven years ago last fall, I was working on a clearing not far from Roopsburg, when Hastings came along and said he would sell me some land he had bought. Told him we were poor. He said he would give us a good time to pay for it in. We went to look at his land, and when we came to a certain place I wanted to go further. He told us he couldn’t let us go any further there, for that was some land he had given to old Mr. Eckley for showing some lines and corners. Told him if he wouldn’t let us go further, we would not have the land, for it was rough and stony. He said he could not let us have it. Some time after, when Bolinger was surveying, some person asked Hastings if he had given Eckley some land for showing lines. He said he had, and pointed to same place he had shown me. It was fifty or sixty acres. This was the best land I saw there. Eckley worked on it. Saw him grubbing.
    “He died before Hastings. Didn’t live on the land. Saw Eckley hunting lines there for Mr. Hastings.”
    James Morley : “In 1839, I worked for Mr. Hastings, and we got into conversation about some land on which Eckley was grubbing. I asked him what that man was grubbing that land for. He told me he was grubbing it for himself; that this was a piece of land he had given him for his services in running lines. He told me he had given the land. Perhaps he might have said he intended to give it. Eckley died in 1839; I think in August.” Samuel Parker, sworn: “ Heard Hastings say that Eckley had been an important man to him in discovering lines.”

      Joseph Ralph, sworn: “ I was with Mr. Hastings surveying. I asked him where was the land he gave to old Mr. Eekley. He pointed down where Stickler lives now. Saw Eekley grubbing there, but can’t tell when he went into possession.”
    Jacob Eisbburn: “ Saw Eekley several times engaged in searching for lines and corners on Hastings’ land, two or three years before he died. Saw Eekley clearing land; 25 or 30 acres cleared a couple of years before he died; he knew all the corners and lines; he cleared it between 25 or 30 acres; worth $20 per acre; worth $30 now; first quality of land.”
    George Wells, sworn: “I grubbed for Eli Eekley on the place where Stichler now lives. Eekley paid me; 25 acres cleared at the time of his death. This was five or six years before he died.” It appeared that Eekley had lived for a long time in that part of the country; that he was an industrious man, a good woodsman, and possessed of a good memory; and that he knew the lines and corners of the surveys in that neighbourhood.
    His honour Judge Woodward charged the jury in substance as follows:—
    “We are trying the cause without a declaration, and at a great disadvantage. The plaintiff alleges a parol agreement between Eli Eekley and Thomas Hastings, in their lifetime, for the sale to Eekley of fifty acres of land, in consideration of services in searching for lines and corners of lands in which Hastings was interested. He is not seeking to recover the land itself, but damages for not conveying to Eekley the title, according to the terms of the alleged agreement.
    “ The material question for the jury to decide is: Was there such an agreement between Eekley and Hastings as the plaintiff alleges ? If it is found, from the evidence, the court instruct the jury that an action for damages will lie upon such a contract.
    “ But, then, what is the proper measure of damages ? Certainly not the value of the land; for to give damages equal to the value of the land, would be essentially the same thing as to compel a conveyance of the estate, which would overthrow the statute of ■ frauds and perjuries. But in a case situated like the present, it seems to me the proper measure of damages would bé the price paid; the fair value of the services actually rendered. Eor these services, Eekley ought to be compensated in money, having failed to hold the land which it is said was promised td him; and the ascertainment of the reasonable value of Eckley’s services, in bunting up lines and corners for Hastings, is exclusively for tbe
    To tbis charge, tbe defendant’s counsel excepted. Tbe jury found for tbe plaintiff; whereupon tbis writ was sued out by defendant.
    Errors: 1. Tbe court erred in admitting the deposition of Christian Roop, as contained in defendant’s first bill of exceptions.
    2. Tbe court erred in leaving the evidence of a contract to tbe jury, when there was no sufficient evidence of a contract.
    3. Tbe court ought to have instructed tbe jury that tbe plaintiffs were not entitled to recover.

      J. T. Sale, for plaintiff in error.
    Qnrtin, contrá.

      May 29.
   Burnside, J.

Tbis action was case. Tbe defendant pleaded non assumpsit and payment. On these pleas tbe parties went to trial without a declaration.

1. It is assigned for error, that tbe court admitted tbe deposition of Christian Roop, of tbe state of Indiana.

Tbe deposition was regularly taken, on a commission duly executed in conformity with tbe rules of court. Due notice was given to tbe defendant’s attorney of it. It was regularly filed with the prothonotary. Tbe learned counsel of tbe plaintiff in error has utterly failed to sustain bis exception.

2. That tbe court erred in leaving tbe evidence of a contract to tbe jury, when there was no sufficient evidence of tbe contract.

There was certainly evidence of a parol agreement between tbe elder Hastings and Eckley. It appeared that Hastings claimed to be tbe owner of two tracts of land, west of Spring Creek, in Nittany valley, and that be promised Eckley, who was an experienced woodsman, and who bad long resided. in that part of the country, and knew tbe surveyor’s lines in tbe valley, that be would give him fifty acres of tbe land, if be would find bis lines. Eckley was proved to have searched tbe woods, every day in. tbe week, with diligence. Hastings expressed bis satisfaction with tbe result of Eckley’s examination, and pointed out tbe place where Eckley was grubbing on bis own land — tbe land be bad given him, and which Hastings refused to sell to others.

There was no error in leaving this evidence of a parol contract to tbe jury. It would have been manifest error if tbe court bad not done so.

8. That the court erred in not instructing the jury that the plaintiff was not entitled to recover.

The action was for damages for the breach of a parol contract, and it was left to the jury, to determine whether there was an agreement to give the fifty acres. If the contract was found by the jury from the evidence, they were told that an action for damages would lie. We see no error in this instruction.

Judgment affirmed.


author: Per Curiam.

text:
    Simpson’s Appeal.
    Upon the application of E. S., late the widow of J. S., deceased, after her divorce from her second husband, M. T. S., for a writ of partition of certain lands, late the estate of J. S., her first husband, and then owned by W. A. T., under conveyances by the heirs at law of her first husband, the. said J. S.: it appeared, that the said E. S. had signed and given a receipt to the said W. A. I., for a certain sum which was agreed to be due to her, hy a settlement or account stated in writing, and under which the said receipt was written, as the amount of dower due her out of the real estate of her first husband, J. S., for certain years, as therein specified: he, the said W. A. T., having purchased the same from E. B. S., deceased, the alienee of J. S. and W. B. S., her sons, hy J. S., . her said first husband: and that the said settlement or account stated, was made pursuant to an arrangement between the said J. S. and W. B. S., the sons of the said E. S., by which a substitute was provided in lieu of her dower; and where it also appeared by the testimony of a subscribing witness to the settlement and receipt, that the paper containing the same, was signed hy E. S., the said widow, after much deliberation by her, her connsel, and her nephew, as a final settlement between the parties, in lieu of her dower, and in full of all claims by her against the said W. A. T., at that time, with the exception stated on the said paper:’ Held, that the receipt given hy E. S. to W. A. T., fortified as it was by testimony, was a direct ratification of the arrangement between her sons, by which they provided a substitute - for her dower, and having ratified it, and received a payment under it, she was estopped from contesting its validity, or claiming on inconsistent rights.

      May 26. This was an appeal by Elizabeth Simpson, late Elizabeth Smith, tbe widow of James Smith, deceased, from tbe decree of tbe Orphans’ Court'of Centre county, refusing to award an inquest to make partition of certain lands, late tbe estate of tbe said James Smith, but then owned by William A. Thomas, under conveyances by the heirs at law of the said James Smith.
    The facts of this case are so fully stated in Thomas v. Simpson, 8 Barr, 60, and in the opinion of the court below (Woodward, P. J.), which was generally assigned for error here, that, with the exception of the settlement and receipt, and the testimony of Bond Yalentine, a subscribing witness to the receipt, a further statement is considered unnecessary.

      Qopy of Settlement and Receipt.

    Amount of money reserved by article of agreement dated the 30th day of March, 1832, between Franklin B. Smith and William B. Smith, and mentioned in the bond and mortgage given by F. B. Smith to William B. Smith, the interest of which is to be paid Mrs. E. Simpson, in lieu of dower, pro ut article, bond, and mortgage, $2236.15!
    Amount of money reserved by bond of William A. Thomas to Dr. John Harris, and mortgage dated 29th April, 1834, in trust, &c., interest of which to be paid in lieu of dower for purchase of James Smith — interest to Mrs. E. Simpson, ------ 3000.00
    The interest on these two sums was paid and liquidated by F. B. Smith’s estate with James Smith’s estate, up to the 1st of April, 1834, by report of referees — and the interest from the 1st of April, 1834, to 28th August, 1834, is unsettled, and remains due from William Thomas to the party entitled to receive — Mrs. Simpson claiming to be that party. 1 ^
    Interest in lieu of dower commencing on the 28th August, 1834, the date of the decree of divorce, E. Simpson v. M. T. S., and due on the 28th August, 1835- — one year, $314.16
    Interest on this sum from 28th August, 1834, to 8th June, 1837, - - ' - - - 33.49
    Due ' do. do. 28th August, 1836, 314.16
    Interest on the same up to 8th June, 1837, 14.65
    Due do. do. 28th August,
    1837,.....$314.16
    Deduct 2 months 20 days’ discount, 4.16 ■
    .-— 310.62
    $986.62

      “ Received from William A. Thomas, nine hundred and eighty-six dollars and sixty-two cents, being the amount of dower due me on the real estate of my deceased husband, James Smith, from the 28th August, 1834, to the 28th August, 1837, he haying purchased tbe same from F. B. Smith, deceased, the alienee of James Smith and William B. Smith, my sons — 8th June, 1837.
    Signed, Elizabeth Simpson.
    Witness — B. Valentine, W. W. Potter.”
    Testimony of Bond Valentine: “ I was the counsel of William A. Thomas, and met with Wm. W. Potter, the counsel of Elizabeth Simpson, and her nephew, James Dunlap, who was acting as her friend and adviser also, and after conferring together for several days at intervals, the above described paper was executed by Elizabeth Simpson as a final settlement between the parties, in lieu of her dower, and in full of all claims which she made on William A. Thomas at the time, except the unsettled interest from the 1st April, 1834, to 28th of August, 1834, as stated in the paper executed by her as aforesaid. I further recollect that an ejectment was then pending, which was to be, and I believe was discontinued as part and parcel of the settlement between the parties. I believe also that the ejectment No. 85, of November, 1833, is the suit then pending, which was discontinued in pursuance of the said settlement, by her attorney, Wm. W. Potter.
    “ I did so understand that the above settlement was to be in lieu of her dower, and to establish the sum to be paid in future in lieu of her dower, and that such was the agreement and understanding of the parties.” >

      Opinion of the Oourt. — “This is an application by Mrs. Simpson, as the widow of James Smith, for a writ of partition in respect to certain lands late the estate of said James Smith, and nowin the occupancy and tenure of William A. Thomas and several other persons named in her original partition. ■ It being alleged' on the part of these persons that Mrs. Simpson joined her husband in his lifetime, in a conveyance of the lands claimed by them, she confesses the truth of the ’ allegation, and thus admits her dower in these lands to be barred. Upon the pleadings of the parties, the only question that remains is, shall Mrs. Simpson have a writ of partition in respect to the estate of which her husband died seised, and which is now held by William A. Thomas under conveyances by the heirs at law of James Smith.
    “Notwithstanding the will of James Smith, cited in Thomas v.. Simpson, 3 Barr, 60, it is to be assumed that he died intestate as to the property in which his widow now claims dower. I think it may fairly be inferred from that case, that such was the opinion of the Supreme Court on this point, and it is necessary for this court to assume it to enable them to entertain the widow’s application.
    “Is then a writ of partition a matter of right? Are we bound to award it in every case as a matter of course, where it is applied for by a widow ? The 36th section of the act of 1832, relating to Orphans’ Courts, declares that the Orphans’ Court of the proper county i shall have power, on the application of a widow or any lineal descendant of the decedent having an interest in such, real estate,’ to appoint and award an inquest. I take it that the limitation of ‘interest’ applies as well to the widow as to the lineal descendants of the decedent: for certainly she is as competent to divest her interest, by acts after the death of her husband and before partition, as the heirs are. Where the widow’s interest and her right to have partition are denied, the question must be tried at some stage of the proceedings, and I can see no reason why it should not be tried upon the application for the writ, as well as upon exceptions to the inquest after its return. The practice of awarding an inquest as a matter of course, without further inquiry on the part of the court, even under the act of 1194, which contained no limitation as is expressed in the act of 1832, was reproved by C. J. Tilghman in Rex v. Rex, 3 S. & R. 535. If the facts alleged are of such a nature that the inquisition can throw no light upon them, nor assist the conscience of the court, it seems to me to be the better practice to try them in limine, and thus save the parties the costs of an inquisition which if taken would be quashed.
    “ Supposing it then proper for us-to inquire, at this time, whether Mrs. Simpson is entitled to have a writ of partition against Mr. Thomas, with a view of obtaining her dower, and regarding her as the widow of James Smith, who died sole seised, and in the exclusive occupancy of the premises set out in her petition and intestate, what reasons have been assigned against granting her prayer ?
    “ In the first place, it is alleged by the respondent, and not denied on the part of the petitioner, that being joined in marriage to one Michael T. Simpson about the year 1810 or 1811, two or three years after the death of her former husband, Smith, a judgment was recovered against Simpson, and his curtesy in her dower was seised in execution, and on the 25th day of December, 1822, sold by the sheriff to James Smith, to whom the sheriff made his deed on the 28th April, 1823. Her marriage with Simpson subsisted until the 28th day of August, 1834, when she was divorced; and it is claimed on the part of the respondent that the sheriff’s sale divested all her rights of dower during the coverture with Simpson, and so undoubtedly is the opinion of the Supreme Court in the case in 3 Barr, already referred to. As to that period from 1810 or 1811, to 28th day of August, 1834, the admitted facts in the case raise a legal bar to her right of dower, and establish, beyond a peradventure, that she is not a widow of the decedent, ‘ having an interest in such real estate.’
    “ In the next place, the paper of 8th June, 1837, which is in evidence before us, which may be read in print in 3 Barr, 62, is relied on as a commutation of her dower, in consideration of which she released all her interest in the premises in question. It does not appear that Mrs. Simpson was originally a party to the arrangement made by her son James in his sale to Franklin B. Smith, and she would not be bound by that arrangement, unless she adopted it and made it obligatory upon her by her own voluntary act. It is claimed that she did this by her signature to the paper of 8th June, 1837. In one part of- her replication she puts the legal effect of this paper in issue by denying that she ever £ entered into a legal, valid, and binding agreement, or into any agreement of any kind, to accept the annual interest of the said sum of $2,236.15, for and during her natural life, in satisfaction of her dower in the estate of her former husband, James Smith, or of any part thereof and in another part she must be understood as placing her construction upon this paper as a receipt for her dower from the 28th August, 1834, to the 1st of August, 1837. The 28th August, 1837, was probably intended to have been written.
    ££ I have seen this paper before. On the trial of the dower suit, Simpson v. Thomas, it was in evidence, unsupported by any collateral proof; and, under the earnest complaints of Mrs. Simpson, by her counsel, that it was fraudulent when used for anything more than as a receipt for the money acknowledged in it to be paid to her, it was difficult to divest the mind of a suspicion that she may have been overreached. Indeed, the foldings of the paper showed that she may have signed it as a receipt, in utter ignorance that it contained any other words than those which properly constitute the receipt. But all difficulty on this point is now removed by the testimony of Bond Valentine, who describes the great deliberation with which that paper was settled and executed by Mrs. Simpson, with the aid of her counsel, Mr. Potter, and of her nephew, James Dunlap, Esq., ‘as a final settlement between the parties in lieu of her dower, and in full of all claims which she made on William A. Thomas at the time, except the unsettled interest from the 1st of
      April, 1834, to the 28th of August, 1834, as stated in the paper executed ly her as aforesaid.’

    “ There is nothing in the testimony of Mr. Blanchard, taken on the part of the petitioner, to contradict Mr. Valentine; and no issue has been asked to try the validity of this paper before a jury. That the allegations of the petitioner raise matter for an issue proper for a jury, I agree, and that we have power to send issues to the Common Pleas for the trial of disputed facts, is beyond a doubt; but no issue has been asked for in this case, and no evidence of disputed facts has been exhibited or even alleged. The respondent has introduced the facts sworn to by Mr. Valentine. The petitioner does, indeed, object to the competency of the proof; but exhibits no countervailing facts, nor alleges that she has any to exhibit, so that the court will not direct an issue. Taking, then, the paper to have been fairly executed by Mrs. Simpson, for all that it contained, I have no difficulty in deciding that its legal effect is more than a mere receipt for money. It sets out with an express reference to the article, bond, or mortgage, between Franklin B. Smith and William B. Smith, by which the sum of $2,236.15 had been charged on the estate, ‘the interest of which is to le p>aid Mrs. 33. Simpson in lieu of dower.’ Then the bond and mortgage of William Thomas to Dr. Harris, charging $3,000 in ‘ lieu of dower,’ is distinctly stated. Then the fact that the interest on these two sums had been liquidated with the estate of James Smith, the sheriff’s vendee of Simpson’s interest, .up to the 1st of April, 1834, and that the interest from that date to 28th August, 1834, was unsettled, are fully expressed. Then follows a calculation of ‘interest in lieu of dower,’ commencing on the 28th August, 1834, and resulting in the sum of $986.62, for which the receipt was given.
    “Placing her signature to such a paper, with a full knowledge of the contents and references, after mature deliberation, and with the advice of counsel fully informed in the premises, was an express ' recognition and ratification of the arrangement made by her sons to secure her dower after discoverture from Simpson. Thomas had invested money on the faith of that arrangement, and now she ratifies and confirms it — she makes it her own — she receives his money in pursuance of it, and if Mrs. Simpson can be bound, she must submit to this self-imposed arrangement. Such is the effect of this paper, if words and figures have not lost all power. Her receipt of money from Mr. Thomas for several years in pursuance of it, was further ratification of the arrangement, and made assuranee doubly sure. Has Mrs. Simpson any longer an interest in tbe real estate of her husband, except as secured by the bonds and mortgage of Thomas ? Clearly not. She has accepted them in (lieu of her dower’ — these are her express words. Her dower is given up by her own deliberate act for a chosen and probably a reasonable equivalent, and she is. not entitled to have partition of the estate. Why award her a writ of partition when she is shown to have surrendered its fruits for an equivalent which she holds ? What could she acquire by it? Until she should impeach and overthrow the agreement of June, 1887, she could never have her dower assigned her, and the writ she prays for would accomplish no other purpose than to harass Thomas and load his estate with unnecessary costs.
    “ These two objections, therefore, the sheriff’s sale and the settlement of June, 1837, seem to be substantial reasons for denying the party the process which the act of 1832 empowers, but does not enjoin us to award. And they cover the whole ground. As to the two years or more which elapsed from the death of her first husband to her marriage with the second, I have no reluctance to bar her by force of the paper of June 8, 1837, in view of the fact that she retained the possession and enjoyed the profits of the estate. She has no equity to call upon an alienee of the heirs at law for her dower, during a period when she had the whole estate in her possession, without account. And as to the unsettled interest from the 1st of April, 1834, to 28th August, 1834, it is manifest, since the Supreme Court has given effect to the sheriff’s sale, that Mrs. Simpson has no right whatever to this interest, but that it belongs to the estate of her deceased son, James Smith. So that the two objections taken on the part of the respondent are well sustained, and the showing of the parties establishes the conclusion that Mrs. Simpson has not such an interest in the real estate of the decedent, as to entitle her, under the act of 1832, to an inquest of partition.
    “ The objection that is stated in the replication of the petitioner to the reception of the deposition of Bond Valentine,, and to the effect of it, may be sufficiently disposed of, by saying that the Orphans’ Court, sitting as a court of chancery, is not bound by the technical rules of evidence: per Huston, J., in Sterret’s Appeal, 2 Penn. Rep. 420; or by pointing to the fact, that the manner and circumstances of the execution of the paper of 1837, as proved by Mr. Valentine, would be strictly legal evidence, and that a just construction of the contents of the paper itself, sustains the conclusion that we have expressed. Nor can it reasonably be objected, that the court has proceeded on the assumption that the facts proved are true, since no issue has been demanded for the trial of them. In the case of Spangler v. Rambler, 4 S. & R. 192, the Orphans’ Court received proof of facts and passed on them without the aid of a jury, in a question of confirming an inquisition in partition, and refused to confirm it, and did actually set it aside, on grounds which, if they had been disclosed at the proper time, would have justified the court in refusing to award an inquest.
    “ Believing that every material point, raised in the altercations of the parties, has been sufficiently noticed, the petition of the petitioner is dismissed.”
    The errors assigned here were, that the court erred in giving any legal effect to the testimony of Bond Yalentine; in their construction of the receipt of Elizabeth Simpson; in the general doctrines advanced in their opinion on the case; in saying, that, “believing that every material point raised in the altercations of the parties has been sufficiently noticed, the petition of the petitioner is dismissed;” and in dismissing the petition and refusing to award an inquest.
    Msher, for appellant.

      Burnside and Macallister, eontrit,
    were stopped by the court.
   Per Curiam.

The receipt given by Mrs. Simpson to Mr. Thomas, fortified as it was by the testimony of Bond Yalentine, was a direct ratification of the arrangement between her sons, by which they provided a substitute for her dower. Having ratified it, and received a payment under it, she is estopped from contesting its validity or claiming on inconsistent rights.


text:
    Piper v. Martin.
    Under an execution issued on the only judgment then in existence against a defendant, the sheriff levied upon, amongst other property, two stills erected in the usual way in the distillery of the defendant, which, with the consent and at the request of the plaintiff and defendant in the said execution, the sheriff offered for sale as personal property, and sold the same to the plaintiff in the said execution. After this sale, four other judgments were obtained against the same defendant, on which executions were issued, and placed in the hands of the sheriff, who neither levied nor returned them. Upon a controversy arising between the purchaser, who was the first, and the subsequent judgment and execution creditors, as to the validity of the first judgment, and in relation to the money raised by the sale of the defendant’s property under the execution issued thereon, an agreement was entered into by and between them, that the money should be considered in court for the purpose of appropriation, and a case was stated to which they were each a party. On the case stated, the court decreed the money to be paid to the subsequent execution creditors, the judgment and execution of the first creditor having been declared fraudulent and void, upon the trial of an issue directed to determine that question. No appeal from the said decree of the court, although provided for in the case stated, was taken: Meld, that the purchaser of the stills, who was the plaintiff in the first judgment and execution, was fixed, under the principle of caveat emptor, for the amount of his bid, and bound to the sheriff for its payment, although his execution was subsequently set aside; that the agreement of the plaintiff and defendant in the execution, no other person then having the right to object, that the stills should be sold as personal property, dispensed with the necessity of determining whether they were real or personal property, and that they passed by the sale to the purchaser as personal property.
    In error from the Court of Common Pleas of Cumberland county.

      May 29. Paul Martin, the defendant in error, was plaintiff below, and brought this action in debt against John Piper and James S. Dunlop, administrators of James Piper, deceased, to recover the price of certain property levied upon and sold by him, as sheriff of Cumberland county, to James Piper, the defendants’ intestate. a
    It appeared that the plaintiff, by virtue of judicial process, issued on a judgment of James Piper, the defendants’ intestate, against one William Noacre, levied upon certain property of the defendant in the judgment and execution, amongst which were two stills, erected on the said defendant’s distillery; and of the property so levied upon he sold the following articles to the plaintiff in the said judgment: 26 mash hogsheads, 2 stills and fixtures, and 2 yeast vessels, for $210.22. The amount of the sales of all the property levied upon was $119.20. This suit was brought to recover the purchase-money of the articles sold to the said James Piper. The only controversy at the trial below was as to the levy and sale of the two stills, which the defendants contended the sheriff had no authority or power to levy upon and sell, as they were fixtures and attached to the realty. The deputy-sheriff testified, that the stills were set up in the usual way in the still-house at the time of the levy and sale; that on the day of the sale he expressed his doubts as to their right and power to sell the stills as personal property; that James Piper and William Noacre, the plaintiff and defendant in the writ of execution, then and there agreed that they should be sold and that they were accordingly sold, and purchased by James Piper, the said plaintiff; and that the stills were in use at the time of the levy. All the other facts and proceedings in the case will fully and clearly appear from the following case stated, in the nature of a special verdict on the appropriation of the money raised as above stated, and which was read in evidence at the trial of this case:—
    “In the matter of the appropriation of the proceeds of the sale of the personal property of William Noaere. The parties being all in court, agree that the money raised by the sale of the personal property of William Noacre shall be considered in court, for the purpose of appropriation; and that the question be decided and the appropriation made upon the following facts, reserving to all the parties the right to appeal without oath or bail. On the 22d day of January, 1842, William Noacre confessed judgment to James Piper for $2,609.94, which was entered of record and a fieri facias issued thereon on the same day, which was levied on the defendant’s personal property, and the property sold on the 1th day of February, 1842. Afterwards, viz: 24th February, 1842, C. Mellinger, for the use of himself and others, obtained a judgment against William Noacre for $545.01, upon which execution issued the same day, and was placed in the hands of the sheriff on the 25th February, 1842. Peter Ottisom, Robert Smith, and Isaac Moquart, severally, obtained judgments against William Noacre, which were entered and executions issued and placed in the hands of the sheriff, amounting altogether to $588. When these executions were placed in the hands of the sheriff by the respective plaintiffs, he was notified not to pay the proceeds of the sale in his hands to James Piper, and he did not. On the first day of the then next term, April, 1842, at the instance of the said C. Mellinger and all the other execution creditors subsequent to James Piper, the court granted a rule on the said James Piper to show cause why his judgment should not be opened and execution set aside. Previously to May 23d, 1842, depositions were taken to establish the fact that the judgment of the said James Piper and execution were fraudulent, having been given to hinder and delay creditors; and on that day, the court made the rule to ©how cause absolute, and directed an issue to try that fact: in which all the other execution creditors of William Noacre were defendants and the said James Piper was plaintiff. The issue came on to be tried on the 14th August, 1844, when a verdict was rendered for the defendants, upon which judgment was entered pro

      ut said issue, No. 212, April Term, 1842. On the 19th August, 1842, William Noaere presented his petition to the District Court of the United States, for the benefit of the Bankrupt Law, and on the 20th September, 1842, he was decreed by the said court to be a bankrupt: and subsequently, on the 10th day of March, 1843, obtained his final discharge and certificate. It was also admitted, that on the trial of the issue referred to, No. 212, April Term, 1842, William Noacre, a witness called by the creditors, testified, that the actual amount due and owing by him to James Piper, when the said judgment was confessed, was one thousand dollars.”
    On the 29th of April, 1846, the court, upon argument of the case stated, ordered the money to be paid to C. Mellinger, and to the subsequent execution creditors, in the order in which their executions were issued to and received by the sheriff.
    The court (Hepburn, P. J.) charged the jury that if they were “satisfied, from the testimony in the cause, that these stills were put upon the property during the time that it was occupied by William Noacre; that Piper’s execution issued against him, and that both he and Piper directed the sheriff to sell them; that they were sold, and that Piper, the plaintiff in the execution, became the purchaser: the sheriff, having paid the money on another execution under a decree of the court, is entitled to his money, and consequently to your verdict in this action, the stills being the only matter in dispute.”
    The charge was excepted to by the defendant. The jury found a verdict of ¡§213.24 for plaintiff.
    Errors assigned: 1. The court assumed the fact, and so submitted it to the jury, that Paul Martin, the sheriff, had paid the money under the decree of the court, to another execution creditor, when there was no evidence to that effect before the court or jury.
    2. If Paul Martin did so pay the money, and there was any evidence of the fact, then the legal presumption from the whole evidence is, that it was paid to him by James Piper, and it should have been submitted to the jury under the plea of payment, to determine the fact.
    3. A voluntary payment by the sheriff of an execution in his hands for collection, to the plaintiff, constitutes no cause of action in his favour against the defendant; so a voluntary payment by-the sheriff in this case, would constitute no cause of action in his, favour against James Piper.
    4. So far as the stills are concerned, they were part of the real estate, and bound by the lien of Abraham Grove’s judgment, and the sheriff had no power or authority to sell them either with or without the consent of William Noacre and James Piper. The writ for this purpose was a nullity, and such an agreement as was alleged would have worked a fraud against Abraham Grove, and as this action is -ea: contractu, the sheriff could not recover. The court, therefore, erred in their instruction to the jury.

      Seed, for plaintiff in error.
    The sheriff pretended to levy upon the three stills while they were in actual use, substantially erected, and forming part of the freehold; and, upon such levy, to sell them. Though done by consent, the sale was void: 17 S. & R. 413, 415. To constitute a levy, there must he at least a control over the property in the sheriff, and the power of delivering them to the purchaser: 3 Rawle, 401; 7 Law Lib. 124; 1W. & S. 116, 390. Here he had neither. He might as well have levied upon a chimney in the house, or upon the roof, or a particular room. His execution, for such purpose, was a nullity. The authority was not merely erroneous, but was entirely wanting. It could not be supplied by consent. The sheriff, quoad hoe, was a trespasser: 8 Law Lib. 92; 46 Law Lib. 199; 51 Law Lib. 59, 80, 99; 1 W. 515. A trespasser cannot recover for his trespass. He sues on a contract. There was no contract, so far as regards the levy and sale of the stills.
    The sale was made on James Piper’s execution. There was none other in the sheriff’s hands. This execution was set aside by the court. The right to the money, if it had been paid, would have reverted to Noacre (if there had been nothing else in the way); consequently, there is no right of action in the sheriff: 1 Cranch, 117,131. So far as regards the stills, they were not and could not be removed. They remained in possession of Noaere) who was entitled to them: Tarbox v. Hays, 6 W. 400; 5 Co. Rep. 90.
    Rut Noacre, in the mean time, applied for the benefit of the bankrupt law, made an assignment, and procured his certificate. By the decree of bankruptcy, the property passed to the assignee by mere operation of law; from the time of such decree, every species of right passed, whether to the property or to the money —which is inconsistent with the right of the sheriff to recover: 7 Law Lib. 134 — 5, 187; sec. 3 of Bankrupt Law. The right of the assignee in bankruptcy was not affected by the decree of distribution, in the Court of Common Pleas. He was no party to it; and such decree only binds parties and privies: Cash’s Appeal, 1 Barr, 167. This was not a distribution .under the act of Assembly, binding every one; for no notice was given, without which the court had no jurisdiction beyond the parties in court: Act of 16th June, 1836; Dunl. Dig. 734.
    There was error also in the court assuming the fact, and submitting the case to the jury in that aspect, that Paul Martin had paid the money on another execution, under a decree of the court, when there was no proof of any such fact alleged or proved.

      Watts, for defendant in error.
    Conceding the principles of law, stated by the gentleman on the other side, and the facts on which they are predicated, there is no available ground to reverse this judgment. The action is by a sheriff to recover the price of goods sold to the defendant: and the defence is two-fold. 1st. That the goods were not the subject of sale, because they were fixtures — part of the realty. The answers to this objection are conclusive, that the record shows that the goods were sold at the request of both the plaintiff and defendant in the execution, and there was no third person to gainsay their wish ; and, again, that a sheriff’s sale implies no warranty, and the purchaser must pay without regard to the title he acquires: Freeman v. Caldwell, 10 Watts, 9. The second position of the defendant is, that the court, without evidence, instructed the jury that the plaintiff had paid the money to the creditor, and, therefore, was entitled to recover it. It can be of no consequence whether the sheriff paid the money or not to the creditor, or what creditor was entitled to it. The sheriff sold the property ; is, therefore, liable to some creditor or other; and is, therefore, entitled to recover it, whether he has paid it or not. The record exhibits the fact, that the whole amount of the sheriff’s sale was appropriated by the court, from which there was no appeal: the correctness of the appropriation canpot now be questioned, nor otherwise than by appeal. Clearly, then, the sheriff may recover to enable him to pay, if he has not done so already.

      June 5.

   Rogers, J.

This was an action by Paul Martin, who was the sheriff of Cumberland county, against James Piper, to recover the price of certain stills purchased by the defendant at a sale on an execution issued on a judgment by the said James Piper against William Noacre. James Piper, the plaintiff in the execution, himself became the purchaser, and as such was unquestionably answerable for the amount of his bid to the sheriff for the use of the creditors. The money it is to be presumed was not paid, because the plaintiff, held the first execution, and was therefore entitled to a credit on his execution for the amount of his purchase. It seems, however, that after the sale there being some controversy among the execution creditors, it was agreed that the money arising from the sale should be considered in court for the purpose of appropriation. To this agreement the defendant was a party, and on a case stated the court decreed the money to the other execution creditors, the judgment and execution of Piper, on an issue directed for that purpose, being declared fraudulent and void. But although the execution was afterwards set aside, yet the purchaser was fixed for the amount of his bid, on the principle of caveat emptor, and because he agreed to consider the money in court for distribution, although he knew it was unpaid. By the sale as between him and the defendant in the execution, he became entitled to the still, for it is in full proof that the sale was with the assent of William Noacre, who agreed it should be taken and sold as personal property. Now whether, in contemplation of law, it was attached to the realty or not, as a fixture, is immaterial, as the parties agreed to consider it personal property. This dispenses with the ■ necessity of determining whether it was personal or real. There is no person who has any interest in this but Grove, who had a judgment against Peter Noacre, the former owner of the land. But Grove is no party to this proceeding, nor is he complaining, nor can his rights be affected; for the still continues attached to the freehold, as before. But it may be doubtful whether Grove would have any right to object, inasmuch as the still was affixed for purposes of trade, after the sale of Peter to William Noacre. It may, I say, be doubtful whether the owner would not have a right to remove it without the assent of Grove or any other person. But, be this as it may, by the agreement already referred to, it must be taken as personal property, and, as such, passed by the sale to the purchaser. Then, why should not the defendant be answerable for the amount of his bid ? Why should the sheriff be compelled to pay it, as has been already done, out of his own pocket ? This suit is only for the purpose of recovering the money to reimburse the sheriff, or to enable him to comply with the decree ordering the money to be paid to the other creditors. It is said, however, the suit cannot be sustained, because the money belongs to the assignees, in bankruptcy, of William Noacre. But not so. They were parties to the decree; their rights have been already adjudged. But, whether it be so or not, is immaterial, as the sheriff is the proper person to recover the money for the purposes of appropriation. Nor clo we see any reason in the exception, that it was a voluntary payment by the sheriff; for, if paid (which, as has been before said, is of no sort of consequence), it was a payment under a decree of the court,’ in a case stated, to which the defendant himself was a party. We see no valid objection to the charge; for, if erroneous at all, the error is in favour of the defendant, who is plaintiff in error. This fifth error has been in substance disposed of in the preceding remark, and does not require particular notice.

Judgment affirmed.


text:
    Hack et al. v. Stewart et al.
    Where a son, after he had attained the age of twenty-one years, continued for a few years to live with his father, who supported him, and to labour and work on the farm as he had previously done ; and no express contract as to the payment of wages by the father for the services of the son, was proved between them: the father cannot, after he becomes indebted and involved, create a debt in favour of the son, which had no legal existence until that time, and in consideration of such debt convey Ms property to the son at the expense of creditors ; and a conveyance from the father to the son, under such circumstances, would be fraudulent and void.
    In error from the Common Pleas of Perry county.

      May 30, 31. This was an action of ejectment brought by Frederick A. Hack, David Ruthrauff; Jeremiah M. Kimberly, and John M. Walker, against Samuel Stewart, John Stewart, and Thomas Stewart, to recover a tract of land in Tyrone township, Perry county.
    The case is sufficiently stated in the opinion of this court.

      G-raham, for plaintiffs in error.
    This was a case of legal fraud, and the court ought to have so instructed the jury. There was no evidence of any contract or agreement by the father to pay his son wages after he was twenty-one years of age, and in the absence of a contract the son could not recover: Walker’s Estate, 3 Rawle, 249. Nor was there any obligation to pay, such as would support a promise, had one been proved after the services were performed by the son for his father. Natural affection is an insufficient consideration to support a contract: Cro. Eliz. 756. A moral obligation, to support a contract, must be such as could be enforced at law, were it not bound by some legal maxim or statutory provision: 3 Bos. & Pull. 249, in note; Chit, on Contracts, 12; 13 Johns. Rep. 259 ; 3 Pick. 207; 1 Vermont Rep. 420 ; 3 Dyer, 272, note; 1 Roll. Ab. 2, pi. Q, 3; 2 Leon. 224, 225.
    But the reservation to the father of living on the land, mentioned in the article, renders the sale fraudulent in law: 3 Penn. Rep. 91. The court not only erred in answering the sixth and seventh points put by plaintiffs’ counsel, in the negative, but in answering the third and fourth points, put by defendants’ counsel, in the affirmative. The court, in answering these points in the affirmative, tell the jury “that the respective rights of the parties depend upon the fairness and honesty of the sale by said Stewart to his sons, John and Thomas“ and if a fair consideration is paid or promised to be paid, such sale is valid, and will vest a good title in the sons.”
    A sale may be perfectly fair and honest between the parties, and for a good and valuable consideration, and void as to creditors. Geiger v. Welsh, 1 Rawle, 353. A fair consideration may be promised to be paid, and the time of payment deferred, as in this case, for four or five years, so as to hinder and delay creditors; and' this alone will render such sale fraudulent in law, although the object of the sale may have been the payment of the vendor’s debts. This court decided in the case of Kepner v. Burkhart, 5 Barr, 478, that a sale where judgment bonds were given, payable in six successive years, which were intended to be applied by the vendor to the payment of his debts, and were actually tendered by him to his creditors, was fraudulent within the statute of 13 Eliz.
    Where the facts in evidence amount to a fraud in law, it is the right of the court to decide, and not the jury :■ 1 Rawle, 353.

      Watts, contó.
    If this were a motion for a new trial, or an appeal to the court on the merits of the cause, the argument of the counsel would prevail, for I am not prepared to argue the merits now. It is sufficient for us that we obtained the verdict of the jury, and the subsequent approbation of the court, in a motion for a new trial. The only topic involving the powers of this court, hinted at by the counsel for the plaintiffs in error, is, that all the facts of the case are such as required of the court below to instruct the jury, that they constituted a legal fraud on the part of the defendants, such as entitled the plaintiffs to a verdict. We might for the sake of the argument concede this, and answer to it; that no such proposition was made to the court below, none such was answered, and none such is now assigned for error. But the debt of the plaintiffs, for which the defendant was but a surety, when he became such surety, he communicated the fact to the plaintiffs, that he had disposed of his property, although he had not at that time actually executed the contract of sale. This shows that the sale made to his sons, was not for the purpose of hindering or delaying his creditors. It is said, too, that the agreement of the father to pay his son for labour performed, was fraudulent, because he had not been previously bound to pay: but whatever may be said with regard to the sufficiency of a moral obligation, as a consideration for a promise, and the old authorities on that subject, the law now is — that a moral obligation predicated upon an actual benefit derived, is a sufficient consideration for a promise to pay. Our own court has settled this: Grreeves v. McAllister, 2 Binn. 591; Clark v. Herring, 5 Binn. 33; Austin v. McClure, 4 Ball. 226; Hassinger v. Solms, 5 S. & B>. 12.

      June 20.
   Burnside, J.

The plaintiffs in.error, who were plaintiffs below, claimed the land in question as purchasers at sheriff’s sale of the real estate of Samuel Stewart. The other defendants, who were his sons, set up title by an article of agreement with their father, of the 10th of October, 1842. By the article the father agrees to convey the land to his sons for the consideration of $1,500; that is to say, $700 was to be paid as it became due, to Thomas Milligan’s heirs — $90 to the Carlisle Bank — the balance, $710, in the following manner:—

“ Whereas John Stewart (one of the defendants) not being put to a trade, but continued with his father the said Samuel, to labour and work on the farm, and after he arrived to the age of twenty-one years, still continued to serve and work for his said father upon the farm up to the present time, making five years’ services above the age of twenty-one, at the rate of $120 per year, making $600, and the balance, $110, to be paid in 1847.”

Possession was delivered to the sons, except it was further agreed, that the father reserved for himself and his wife the privilege of living in the lower tenant-house, as long as the son Samuel and wife or either of them may see proper, with the garden and sufficient fire-wood.

Several questions were raised on the trial, but the errors assigned are to the answer of the court to the sixth and seventh points, in the negative; and in answering the points put by the defendants’ counsel, in the affirmative.

“6th point. If John Stewart lived with his father after he was twenty-one years of age, and no express contract is proved between him and his father, that the father was to pay him wages, and there is no evidence of any contract or agreement on that subject between them, the father could not, after he became indebted and involved, in 1842, create a debt to his son, which had no legal existence till that time, and convey his property to his sons in consideration of such debt, at the expense of his creditors.”

To this the court answer: — “We cannot instruct you, that an express contract between the father and the son, such as the latter could enforce by an action against the father, was necessary to justify him in allowing a just and reasonable compensation to his son for services actually rendered by him after his majority, in a subsequent fair and honest sale of his property to him' and others. But if such allowance were made with a view to creating a debt which had no existence before, and which never was intended to be claimed by the son, or paid by the father, until after the father became largely indebted, and then resorted to for the purpose of concocting a consideration to support a sale by the father to his sons, it would render the whole transaction fraudulent and void in law, and a sale of the property afterwards by the sheriff on a judgment, against the father, would vest in the purchaser the father’s title, as fully and effectively as if the agreement and deed had never been made; and whether this sale is of that character, the jury will determine from the evidence, and find accordingly.”

“ 7th. That in the absence of proof of a contract prior to 1842, the alleged debt of $600 for the services of John, which forms two-fifths'of the alleged consideration for the conveyance to the sons, renders the deed fraudulent in law.”

To this the court answered: “We have already told you that an express contract, as indicated in this and the preceding point, was not indispensable to justify the father in allowing a fair and reasonable compensation to his son, for services actually rendered by him after-his majority, in a subsequent fair and honest sale of his property to him and others.”

Under the evidence in this case, this court cannot concur in these answers. In Walker’s Estate, 3 Rawle, 243; this court declared that where a son continues with his father after his arrival at full age, and is supported by him (as in this case), without any contract to be paid for his services, he cannot in general, after his death, support a claim against his estate for compensation for his labour. The law on this subject was more fully considered in Candor’s Appeal, 5 W. & S. 513, where it was solemnly settled, that a child is not entitled to recover wages for services rendered from the estate of his deceased parent, unless upon clear and unequivocal proof, leaving no doubt that the relation between the parties was not the ordinary one of parent and child, but of master and servant. In this latter case, the son, being administrator of his father, claimed a credit for $1,500 for work, labour, and services rendered to his father, while a member of his family, for many years after he arrived at full age, which was allowed by the register and the Orphans’ Court. This court struck it out, although there was evidence of a sister that the old man said Robert should be paid in some way, because such a claim was payment with damage to the rights of creditors, as well as the other heirs, and this court could give it no countenance.

What does this case present but a son living with his father a few years after he became of age; the father being largely indebted, conveying to his son, directing near a moiety of the consideration to be applied to certain debts, and reserving a trust to himself? But little of this direction has been complied with. To establish such a conveyance would lead to the most mischievous consequences. No matter what were the debts of a parent, his children who lived with him, after they were of full age, would take the estate. It is the duty of this court to avoid establishing such a temptation. If old Mr. Stewart had died before this deed was made, his son John could not by law have recovered a cent. Our law is too just in its principles to allow a man indebted to divest himself of his property in favour of his children, for thereby his creditors would be defrauded, and such a conveyance would be void as against them. It is within the letter as well as spirit of the statute of Elizabeth, which cannot be too strictly guarded by the administrators of the law. We think both points in this case ought to have been answered substantially in the affirmative.

Judgment reversed, and a venire de novo awarded.


author: Coulter, J.

text:
    Welsh v. Cooper.
    All persons who order or procure a trespass to be committed, and indemnify others for doing it, or incite them to do it, may be sued as principals.
    One, who directed the act complained of as a trespass to be done, adopted it, and bound himself to be responsible for it: H'eld, that he was a party in the trespass, if one were committed, and that he could not be compelled to testify for the plaintiff, although not joined in the suit, because Ms testimony would have gone to establish his own liability as a party; but Ms declarations, when against Ms interest, are evidence in a suit against his co-trespasser, and it is error to reject them.
    The books of a party who sues the sheriff for levying upon and selling his goods, under an execution against another, are evidence for such party: not on the principle under which shop-books are generally admitted, but as part of the res gesta, tending to show the nature of the plaintiff’s possession of the property in controversy. The books, in such case and for such purpose, are no more objectionable on the ground of being evidence made by the plaintiff for himself, than proof would be, that the plaintiff had sold goods, received the money for them, &c._, which would certainly be evidence.
    In error from the Court of Common Pleas of Perry county.

      May 81. This was an action of trespass do bonis asportatis, brought by Elizabeth Welsh against Henry Cooper, sheriff of Perry county, to recover damages for levying upon and selling a store of dry goods, groceries, &c., seized and taken in execution by him, by virtue of a writ of fieri facias against James Welsh. The plaintiff claimed the goods as her property.
    At the trial, before Hepburn, P. J., the plaintiff called and examined Andrew Welsh, her brother, as a witness. He testified, in substance, that he was clerk in the store, under an arrangement with his sister, the plaintiff, to keep the store for her one year, for one-third of the clear profits, he to suffer no.part of the losses; that under this arrangement he went into the store on or about the 1st of April, 1846, took possession of the goods for his sister, and kept and attended to the store until the 4th of July following; that the plaintiff lived in the house in which the store was; that she attended to the store when he was out on business, and assisted him when business was throng; that they kept an account of every article got or taken by either of them from the store for their own use, also an account of the sales, and all moneys expended for produce; all the accounts entered and kept in her books and in ker name; that on the 80th of April, 1846, the plaintiff went to Philadelphia to buy goods, and returned in May with bills amounting to about $1,000; that the goods came up shortly after her return, and that a large portion of these goods were levied upon by Sheriff Cooper, the defendant. He also testified that an inventory of the goods in‘the store was taken by him and another, before he went in as clerk; that he had no interest in the store beyond what he was to receive for his services; and that the store belonged to his sister, so far as he knew. The plaintiff then read the depositions of twelve Philadelphia merchants, which proved that the goods were sold to Elizabeth Welsh alone, and that the deponents knew nothing of James Welsh.
    A bond of indemnity was then read, given by Jacob Weibley and William Power to Sheriff Cooper, the defendant, with William Weibley and Henry Snyder as sureties, in the penalty of $2,000, in the usual form, indemnifying the defendant against all actions, damages, costs, &c., by reason of selling under the direction of said Jacob Weibley and William Power, any goods as the property of James Welsh. They were the bail of James Welsh to the Car-lisle Bank.
    Articles of agreement between James Welsh and Wilson Welsh, for the sale of the Bridgeport store, the store in question, from Wilson to James, dated 30th November, 1838, were read.
    William J. Graham was then called and sworn*: “ I am the subscribing witness to that agreement; I have had possession of it since the agreement was signed; it was signed in Philadelphia. James Welsh went into possession of the property and store in the fall of 1838; there was an inventory taken of the store, and James took possession; there has been a store kept up in that house from that time until the sheriff’s sale. The store, from 1838 until 1842, went in the name of James Welsh; in June, 1842, or about it, there was said to be a sale of James’s interest to Elias Kosier; he died in April, 1843; Jacob Kosier and James Welsh were his administrators; after his death, the store was kept open for near a year; they got recruits of goods at different times; I have known them to get groceries. In the spring of 1844, there was a sale made of the store to Hannah Welsh. Elizabeth Welsh told me, that after some time she would have the store in her own hands; this was shortly after the sale by the executors; after that some time, she said she was now doing business for herself.”
    The defendant then gave in evidence a writ oí fieri facias, issued at the suit of the Carlisle Bank, against James Welsh; under which Sheriff Cooper, the defendant, levied upon the store goods, in the store-room of Elizabeth Welsh, the plaintiff, as the property of James Welsh, and sold the same for-$1,107.29. The defendant also gave in evidence a large number of judgments and executions against James Welsh, and sales of his real and personal estate by the sheriff, in 1843-4-5; and also the separate acts, declarations, and conduct of James Welsh, to prove that the-store was his.
    The plaintiff then gave in evidence, all the bills of the goods purchased by Elizabeth Welsh, the plaintiff, from the spring of 1844, to the time of the sheriff’s sale; also the will of Elias Kosier, proved in 1843; letters of administration to James Welsh and Jacob Hosier, and the inventory of Hosier’s estate, consisting of store goods, and amounting to $2,100.
    The plaintiff then offered in evidence, the declarations of Jacob Weibley, in reference to the goods levied upon by the sheriff. The court rejected the evidence, and sealed a bill of exceptions.

    A witness was then called, who testified, that he had dealings at the store, in 1845 and 1846; that he gave the plaintiff two notes, to be paid in Philadelphia; that she had no partner, so far as the witness knew, and that orders were given in her name.
    Another witness testified, that in May, 1846, he lent the plaintiff $60, to purchase goods in Philadelphia; that she paid him a part of it, and that James Welsh never said anything to him about it.
    Defendant then called several witnesses, who testified, that the character of Andrew Welsh, the witness first examined, for truth, was not good. He then called John Shively, who testified as follows:—
    “ Andrew and I took the inventory, when Andrew went to keep store for his sister; it was at the time he went into the store; it was in the spring. There never was a calculation made of it; it was not counted up; I cannot tell what it would amount to. I clerked in the store shortly after the administrators sold it; I kept the store for Hannah Welsh about three months; she asked me to become a partner with her. Elizabeth told me she was going to own the store herself; that she would be doing business there herself, and wanted me to become a partner. The books of Elizabeth were not the same books kept by Hannah.”
    Plaintiff offered her own books, commencing in March, 1844, and ending in July, 1846, for the purpose of showing that this business was done exclusively in the name of Elizabeth Welsh, and for the purpose of corroborating the testimony of Andrew Welsh, who kept the books, and for every other legitimate purpose. Objected to and rejected by-the court, who sealed plaintiff’s second bill of exception.

    The rejection by the court of the declarations of Jacob Weibley and the books of the plaintiff, offered in evidence by the plaintiff, were the errors assigned here.

      WattSf for plaintiff in error.
    The question tried by the court and jury was the ownership of the goods which had been levied and sold by the sheriff. They composed a store which had been kept by the plaintiff for two years. Andrew Welsh, the witness, had been the clerk in that store. His character for truth had been attacked. The evidence of the books of entry kept in that store, and by the witness, should have been received, for two purposes : to show the manner in which the business had been done and conducted, by whom the goods had been purchased, and by whom sold; and they were clearly evidence to corroborate the testimony of the witness whose veracity had been attacked. But that they were evidence, we think is expressly settled in the case of Welch v. Speakman, 8 W. & S. 257.

      Graham and Reed, contó.
    Were the books kept by Elizabeth Welsh? Evidence to prove that she owned the store. Books kept by a tenant are not evidence to show the relation which existed between landlord and tenant, being offered by the landlord to show that the tenant was his agent and not his tenant: Townsend v. Kerns, 2 Watts, 180. Books of original entries are primd facie evidence of sale and delivery of goods from necessity, but cannot be admitted as evidence of a collateral matter in which a third party is concerned: Juniata Bank v. Brown, 5 S. & R. 231; Bovard v. Wallace, 4 S. & R. 499 ; Nussear v. Arnold, 13 S. & R. 323.

      June 9.
   Coulter, J.

Jacob Weibley was the principal in the bond by which the defendant was indemnified for levying on the store in question. The return to the execution is a “levy on store goods in the store-room of Elizabeth Welsh,” and the indemnity was for selling any goods under the direction of the said Jacob Weibley and William Power, as the property of James Welsh. The store in question was found in the possession of Elizabeth Welsh, and sold under this indemnity. If any trespass was committed, Jacob Weibley was a principal in that trespass, and equally answerable to the plaintiff. All persons who order or procure a trespass to be committed, and indemnify others for doing it, or incite them to do it, may be sued -'a£ principals. Jacob Weibley ’ having directed the act in this case, adopted it, and bound himself to he responsible for it, was a party in the trespass, if a trespass was committed: and that is the very issue which was to be tried^in this suit. Now, although he was not joined in the suit, the plaintiff could not have compelled him to testify, as it would have gone to establish his own liability as a parj||. His declarations, therefore, were evidence when against his interest. This point was ruled in Harriman v. Brown, 8 Leigh, 697, where it was resolved, that the admissions of a person who could not he compelled to testify, and whose declarations are against his own interest, ought to be received. It is not necessary that the person in interest should be actually a party on the record, as was resolved in Pike v. Wiggin, 8 N. H. 356. The evidence offered of the declarations of Jacob Weibley ought to have been received.

The books of Elizabeth Welsh, which were rejected by the court below, ought also to have been received in evidence: not, to be sure, on the principle on which shop-books are generally admitted; .nor to accomplish the object for which they are held to be full primé facie evidence, when accompanied with the suppletory oath of the party; but as part of the res gesta, or transactions under which the possession of the store and ownership of the goods in question was to be developed or made manifest. It is no objection whatever, to say that Elizabeth Welsh would thus make evidence in her own behalf. No one would pretend that it was not competent to give evidence that Elizabeth was constantly in the store, claimed the goods as her own, sold them as her own, and received the money or credited them as her own, and entered them in her books: yet these were all acts done by herself. A man’s exclusive possession of personal property is his own act, either by himself or his agent, and is often established by a variety of circumstances. The books of the store were the best evidence of the manner in which the business was conducted. They afforded daily record of the business, and were offered in evidence for the purpose of establishing that they, TY,ere kept in the name of Elizabeth Welsh. It was ruled in 8 W. 257, that the son might show the course and manner of doing business at the store before the controversy: as that the sign was in the name of the son, and bills made out in the same way, and suits brought in his name, and that the books were evidence. What importance the evidence might hold in the settlement of the cause, is not for us to say; but the books conduced, in some degree, to prove what it was necessary for the plaintiff to establish, to wit, that she had purchased the store, had received, taken, and maintained exclusive possession of it, and managed and sold the goods as her own. The evidence was also offered to corroborate the testimony of Andrew Welsh, which had been impeached; who swore that the business was done exclusively in the name of Elizabeth Welsh, and that the books were kept in her name. The exhibition of the books, to dPertain extent, would, therefore, either corroborate or contradict him. These books, like all others, would be subject to the inspection of the court and jury; and their value would depend upon their appearance, and the internal evidence they would afford of their being contemporaneous with the facts they recorded.

We may regret being obliged to reverse a judgment for the exclusion of testimony, the weight of which in the cause it is not our province to determine. But we must maintain the rules of evidence ; and as the rejected testimony might legitimately, with the other facts in evidence, conduce to prove the issue on the part of the plaintiff, he must have the benefit of it. All may be overcome by evidence satisfactory to the jury that the sale was covinous, and intended to hinder, delay, or defraud creditors.

Judgment reversed, and a venire de novo awarded.