author: Burnside, J. Bell, J.,

text:
    Young v. Lyman.
    Where there is a contract to ereot houses for a specified sum, and it has been performed, it is not necessary to set forth the items of work, materials, &c., in the claim filed.
    Nor where there has been a partial performance: the completion of the contract having been dispensed with by the owners.
    Where the contract provides that the contractor shall give security in $500, that no liens shall be entered on the houses — a lien filed by the contractor is, nevertheless, valid.
    iN'error from the Common Pleas of Montgomery.

      Dec. 29. Two cases between the same parties were heard together. In the first, a claim was filed for $800, for work and materials, consisting of lumber, stone, &c., &c., and other labour and materials done and furnished within six months last past, to wit, between, &c., which were done and furnished under a verbal contract entered into on, &c., between plaintiff and J. M. L., agent of defendants, owners and contractors, and who continued to be owners, or reputed owners, until two of them, then being owners, ordered the further work on the building to stop; the original contract being for $1,000, and the work and materials done and furnished at the time the building was stopped by them, amounting to $800, for which plaintiff claimed a lien.
    The plaintiff, on the trial, offered to prove the contract, and the performance by him in part, until a notice to stop was given by defendants, who had failed; and also the value of the work then done. But the court rejected the evidence.
    The second case was similar to the first, with these variations— a written contract for the erection of the houses was set out in substance in the claim, and also an averment that $50 for extra work was agreed to be paid plaintiff, and a copy was also filed therewith. In this there was a clause as follows: “ All materials to be paid for four months after the completion of the job, and Young to give security in $500 that no liens shall be.entered on the houses.”
    The plaintiff offered to prove the agreement for the extra work and performance by him; which evidence was rejected.
    Boyd, for plaintiff in error.
    The completion of the work being prevented by the insolvency and acts of defendants, it would seem they cannot require anything further than would suffice, had there been an entire performance. Where there is a contract it is perfectly immaterial to have a bill of particulars; the plaintiff can recover but a specified sum, whatever it may have cost him; besides, in such cases no account is ever kept. Hence it would be unreasonable to compel him to do this in the case of the unfinished house, which was left so at the defendant’s instance.

      Mulvany, contra.
    In the first case he cannot recover but a quantum meruit, and hence the same necessity for the bill exists. It is sufficient to say that it is required in all cases by the very words of the act, as was ruled in 6 Barr, 187. In the last case, beside this objection, there is an express stipulation not to file a lien. [Rogers, J. — It is that no other person or sub-contractor shall file a lien.]

      Jan. 3.
   Burnside, J.

The Common Pleas ruled this ease on the authority of Noll v. Swineford, 6 Barr, 187. We-think the cases are essentially different.' There the plaintiff was not the contractor, but a carpenter employed at the church, who filed his claim for work and labour done, and for materials, i. e. lumber, furnished. The court held that such a claimant must, under the act of 1836, state the amount claimed for each, as a distinct item, ' or the omission would render it totally invalid. But here the lien is filed by the contractor, who covenanted with the defendant to build four frame houses, to be put up in a row seventy-two feet long and eighteen feet wide. Every part of the buildings is particularly described in the articles; and he was to receive $1,250 at the times there specified. The houses were completed, and the defendants, by their workmen, put into possession. This court had held, in Hoatz v. Patterson, 5 W. & S. 537, where a person by special contract (as in this case) had undertaken to furnish materials and erect a house for a saw-mill, he was not entitled to file a lien under the act of 1836. Since .that decision, the legislature was induced to extend the right to file liens so as to embrace “ claims for labour done and materials furnished and used in erecting any house or other building, which may have been or shall be erected under or in pursuance of any contract or agreement for the erection of the same; and the provisions of the said act shall be so construed: and no claim which has been or may be filed against any house or other building, or the lien thereof, or any proceedings thereon, shall be in any manner affected by reason of any contract having been entered into for the erection of any building, but the same shall be held as good and valid as if the building had not been erected under any contract:” Acts of 184-5, p. 538. Here the contract was to do all the work, find all the materials, and finish and complete four frame houses, which were very minutely described in the contract. A mechanic who makes such a contract and completes it, seldom keeps an account of every portion of the materials he uses or the work he does; nor is there any occasion for it. He is to complete the houses according to his contract, and he is to be paid a stipulated sum. In this case it is of no consequence either to the owner or the public, that he should state the number of cubic yards dug for the cellar, the number of perches of stone built, or the quantity of boards used. He states what is equally useful under the words of the act — his contract. We see no valid objection to this lien, looking to the explanatory act of the legislature.

On the first case, his honour said: — This in principle is the same as the preceding, except that it is on a verbal contract, made with the manager on behalf of the defendants. There is no controversy about its terms. The plaintiff had nearly completed his contract, when the defendants wrote him they were labouring under embarrassments, and would not be able to pay as they had expected, and desired him to quit, and they would consider themselves relieved from further indebtedness. The plaintiff in this case claims for the work done. He might have disregarded the notice. Under the circumstances of the case, we think the lien is sufficiently particular.

Judgment reversed, and a venire de novo awarded in both cases.

Bell, J.,

dissented from the latter judgment; considering that Noll v. Swineford ruled the case where the contract was not completed.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    Scarborough v. Thornton.
    Sureties in a bond reciting that the sheriff had appointed A. jailer and keeper of the prison of the county, and conditioned inter alia that he should keep and detain all prisoners, are liable to the sheriff for an escape of a prisoner detained under mesne process: for A. is thereby created the sheriff’s deputy.
    Where the sheriff obtained leave to appear and defend the original suit, and judgment was recovered on a declaration, filed against the original defendant— the plaintiff did not thereby elect to consider defendant in custody, nor discharge the sheriff. For the proceeding was wholly void, except to ascertain the extent of the sheriff’s liability.

      Where the verdict on the bond is for damages, and there has been no judgment entered for the penalty, the court in error will treat this defect in form as amended.
    In error from the Common Pleas of Bucks.
    This was an action of debt by the sheriff against the principal and sureties in the bond of the jailer for an escape of a prisoner arrested on mesne process.
    The bond recited that Thornton, the sheriff, had appointed Scarborough jailer and keeper of the prison of the county, and the condition was, that he should perform all the several duties required by law for the jailers and keepers of the county prisons, &c., and should receive, keep, and detain in safe custody all such prisoners as should from time to time be committed to his charge. The breach assigned was, that the defendant had permitted one Iloyle, arrested on a cap. ad résp., to escape from custody.
    It appeared from the record, that Hoyle had been arrested and delivered to the jailer, but before the return of the writ he had escaped.
    The sheriff then presented a petition setting forth the facts, and praying an order to permit him to appear and defend the suit against Hoyle. The rule was granted so far as to permit him to apj>ear and defend.
    The plaintiff in that action then declared against Hoyle, and recovered a judgment. He then proceeded against the sheriff and recovered. The sheriff having paid the judgment, brought this action, and the question was whether he could recover.
    The court having entered judgment on the verdict, which was for the damages only,

      Moss, for plaintiff in error, contended:
    1st. That the bond was void, because the sheriff had no power to appoint a jailer or keeper, that power being vested in the Quarter Sessions by the acts of 1767 and 1790. That as the only breach was of the duties of deputy-sheriff, which were not mentioned in the bond, there could be no recovery, and that the false recital avoided the bond as to the sureties, 5 Barr, 310.
    2. That by proceeding against the original defendant, the plaintiff had elected to treat him as in custody, and having thus waived the escape, could not afterwards set it up: 4 John. 469; 2 Lev. 132; 1 Vent. 269; 13 John. 121; 7 Wend. 454; 11 Ib. 467; 6 W. & S. 566. This would have been a complete defence to the action against the sheriff; but not having set it up, he cannot now use the judgment, for it was neglected at his peril: 9 Cow. 128.
    8. The verdict not being for the penalty, the court could not enter the judgment for the damages alone, under the act of 1836.

      Du Bois, contra.
    There are two offices, known as jailer and keeper. In the one capacity he is the sheriff’s deputy, and has charge of prisoners arrested on civil process. The jailer is liable over to the sheriff, Watson, 40-1, 5 W. 144, where the right of the shériff to take security is recognised; and if he exercise the office, that is sufficient.
    The appearance by the sheriff was merely to ascertain the extent of his liability, and was in lieu of a reference to a master, which is the English practice. The verdict was binding on no one but himself; and for this purpose, and not to permit a recovery against an absent defendant, was the order made. Whether the point was made in the action against the sheriff, did not appear.

      Jan. 8.

         Whether the court entered the judgment for the penalty in the first instance, could not be collected from the paper-book.

   Bell, J.

The first error assigned is founded in a misconception. In some of the counties of the commonwealth, the sheriff himself resides in the jail of the county, and superintends personally the custody of the prisoners, whether confined under criminal or civil process. In other counties, the custom has been for the sheriff to appoint a jailer, without reference to the 28th section of the act of 1790, which seems to require the approbation of the justices of the Court of Quarter Sessions of the proper county, in open court. The legitimacy of this practice would seem to be recognised in Duncan v. Klinefelter, 5 W. 141. But be this as it may, no one will - pretend to question the sheriff’s right to appoint deputies to perform the duties appertaining to the office, and that he may designate ■ one of these by the title of jailer. “ The most important of the duties of such an officer,” says the court in the case just cited, “ and one which he assumes to perform by the acceptance of the office, is to keep safely all prisoners lawfully committed to his custody, until discharged by due course of law.” As deputy, upon the simple appointment of the sheriff, he is undoubtedly bound to keep safely all persons committed on mesne or final process, and if he permit a debtor to escape, and the sheriff be thereby made responsible, the jailer is liable over to his principal: Wat. on Shff. 40-1; Bac. Ab. T. Shff., H. 5. It is said the sheriff may, and often does, take a bond from the jailer, with security, conditioned for the faithful performance of the duties imposed on him by law, though without it the law implies such an undertaking on the part of the jailer: 1 Roll. Ab. Ac. on the Case, C. 1; Cro. Eliz. 349; Duncan v. Klinefelter, sup. Such a bond was taken here from Scarborough, as the deputy of the plaintiff, and of course the former and his sureties are liable under it. By its condition, the sureties undertook that their principal should keep and detain in secure custody all such prisoners as should, from time to time, be lawfully committed to his charge. It will not be disputed that, within the meaning of this obligation, Hoyle was a prisoner, nor that he was lawfully committed to the custody of Scarborough. “Prison,” says Jacobs in his Law Dictionary, “is a place of confinement for the safe custody of persons in order to their answering in any action, civil or criminal;” and “prisoner is one that is confined in prison on an action or upon commandment.” To establish the legality of the commitment, it is only necessary to recur to the fact that the' jailer was the sheriff’s deputy, and as such, undoubtedly, authorized to detain debtors, whatever may he thought of his authority to confine persons charged with crime.

There was nothing in the recital of the bond tending to mislead the sureties to their injury. It but asserts the appointment of Scarborough as jailer, so far as the sheriff could legally make the appointment, and this unquestionably covered the commitment of debtors.

The second alleged error of any consequence, rests in the supposition that the prosecution of the original action brought by Benton against Henry and Hoyle, to judgment, might have been made available as a defence by the sheriff in the action instituted against him for the escape. This position proceeds upon the idea that the steps taken by Benton in the first suit, after the sheriff’s return of the escape, was an election to consider Hoyle as in court, and this amounted to a waiver of the plaintiff’s right to charge the sheriff for the escape. Certainly, if the sheriff, in the action against him, waived an available defence known to him, he did it at his peril, and the present defendants may have the advantage of it. But with what show of reason could the sheriff set up as a defence, that the Common Pleas of Bucks permitted him to appear and take defence in the original action, for his own protection ? How could he say, “ because, on my own application, I was permitted to litigate with the original plaintiff, and put him to proof of his claim, which he eventually established, therefore I am discharged from answering for the escape of his debtor” ? Such a defence must have been received with a stare of surprise, if not a smile of derision. The truth is, the course erroneously pursued in the first action does not present a case of election. The only way in which the sheriff could legally appear would have been by entering bail to the action; and this, in legal contemplation, would bring the defendant into court. The court was without power to admit him to appear in any other way, and all that followed was coram non judice. It was a contest without parties; the trial of an issue made without authority, for the sheriff had no more right to plead to the action than the merest stranger. As is correctly assumed by the defendants in another part of their case, the verdict and judgment were mere nullities, and furnished no evidence of indebtedness against Hoyle or anybody else. The object evidently was to ascertain the amount of this indebtedness, in reference to the extent of the sheriff’s liability for the escape. But it was a failure for this, as it was for every other purpose. It could not be given in evidence, either for or against the sheriff, in any subsequent action, nor could Hoyle be taken in execution to answer it. It neither increased nor diminished the sheriff’s responsibility, and consequently added nothing to the risks assumed by. the present defendants. In short, it was as though it never had been — an utterly void procedure. The court below was .therefore right in the negative answers returned to the third, fourth, and fifth points submitted by the defendants, which sought to set up this procedure as a valid defence. But the answer to the second point was, in fact, erroneous. The court charged that though the judgment rendered might be void as against Hoyle and Henry, it was nevertheless evidence of Hoyle and Henry’s indebtedness to Benton. The answer should have been, that being void it was evidence of nothing. The error was, however, immaterial. The sheriff’s right to recover in this action depended not on that judgment — if it may so be called — but on the recovery had against him in the District Court of Philadelphia.

It only remains to consider the objection that no verdict was found for the penalty of the bond; and therefore the court had no power to enter judgment under the act of 14th June, 1836. The first section of this act directs, in substance, that in suits on bonds for any penal sum, or for the non-performance of any covenant or written agreement, the plaintiff shall assign the breaches for which he claims damages, and thereupon he shall have judgment for the amount of such bond or penalty in due course of law, and execution thereof for such damages as shall be assessed for the breaches assigned. The verdict rendered here was for the damages and costs on the breaches assigned; and this was enough to show a forfeiture of the bond, and the consequent right of the plaintiff to have a cautionary judgment for the penalty. This provision of the act of 1836 is borrowed from the stat. 8 and 9 W. 3. The practice under it is thus stated by Williams, in his note to 1 Saund. 68: — “At the trial the jury must find a verdict for the plaintiff, with 16s. damages, and 40s. costs, and also assess the damages for the breaches.” “ On the return of th& postea, judgment is entered on the verdict for the debt (which is the penalty), and the one shilling for the detention.” The naked finding of damages in favour of the plaintiff, is therefore the ground for the rendition of “judgment for the amount of such bond or penalty in due course of law,” in the language of our act. This is the work of the court; and after it is rendered, the plaintiff is entitled to have “ execution thereof, for such damages as shall be assessed for the breaches of such covenant or agreement.” In entering judgment for the penally of this bond, the Court of Common Pleas has done nothing more than is authorized by our statute. To support it does not therefore require the aid of the wholesome principle stated by Lilly (2 Lilly Abr.; tit. Verdict, 788), that “ if a verdict may be any way construed to make it a good verdict, there ought not to be made a construction of it so as to destroy it, and make it void. For the law delights in the preservation of things, and to make the best construction of them, and would not have such things to be done in vain, nor construe them to be so done, where a better construction may reasonably be made.” In the case of Carman v. Noble, ante (366), we have said it is not too late, even after error brought, to enter the cautionary judgment, or, what is the same thing, to consider that done which ought to have been done.

Judgment affirmed.


text:
    Preston v. Jones.
    An acceptance of the provisions of a will estops a party from disputing the right? of testator to dispose of property belonging to Ms devisees.
    Testator devised part of Ms own land and part of that which had belonged to Ms wife, to Ms son B., and the residue of his wife’s land he directed should be enjoyed by Ms son J., to whom he also devised other land. He also directed that ia the event of J.’s marriage and having children, B. should mate J. a title for B.’s share of their mother’s land. B. and J. accepted the provisions of the -will. B. has thereby acquired title to so much of the -wife’s land as was devised to him.
    In error from the Common Pleas of Chester.

      Jan. 2. The defendant was the purchaser of a tract of land from the plaintiff under articles; and the question submitted on the case stated, in an action for the purchase-money, was whether there was a sufficient title to the whole of the premises.
    The tract was composed of two parcels, one of which had been the property of Mary Jones, deceased, wife of Evans Jones. The other parcel was the property of said Evans.
    Evans Jones having survived his wife, devised all his estate, real and personal, to his son Benjamin, the plaintiff, with certain exceptions. Some of these he gave to his son John. His own land and that of his wife’s adjoined. By his will he directed a line to be drawn including on one side his own land, and a piece of that which had been his wife’s: all the land lying on the other side of this line, being partly his own land and partly that formerly belonging to his wife, he devised to John, directing the line to be the boundary between Benjamin and John, and that they should equally support the fence and cleanse the ditch. He then continued: “If John marries and has children, Benjamin to make John a title for his half of his mother’s land, which is a condition of this my will; still John to have the use of Benjamin’s half of his mother’s farm, according to the above-described bounds... I make the above a sine qua non, and if either attempts to break it, is to have no benefit to my estate, but all to go to the one willing to fulfil.”
    John accepted the legacies and devises under the will of Evans Jones, and Benjamin tendered him a deed for his half of their mother’s land, to take effect on condition of his marriage, and the birth of children. This deed was not accepted.
    Whether Benjamin had title to the parcel which originally belonged to the wife of Evans, and which descended to himself and his brother, was the question.
    The court gave judgment for the plaintiff.

      Brinton, for plaintiff in error.
    There is but an implication of a devise to Benjamin of any part which had belonged to testator’s wife. And it was conditional that there should be a deed made for the residue on a certain event which has not happened, which condition is equally applicable to the devise. Should it not happen, there is no regulation of the boundary, except for the life of John.

      Lewis, contra.
    A deed was unnecessary, for an acceptance of the benefits under the will bound both parties.

      Jan. 16.
   Bell, J.

The decision of the question raised by the case stated, depends on the right construction of the will of Evans Jones, and the legal consequences flowdng 'from the acts of his two sons under it.

Although very awkwardly constructed, and with occasional obscurity of expression, the testamentary instrument sufficiently discloses two leading objects the testator had in view. These are still more clearly indicated, if it be read in reference to the condition of the testator’s family, and the relation he held to the property, which was the subject of it. Having but two children, he found himself, at the death of his wife, the owner in fee of a tract of land adjoining another, owned by his wife in her lifetime, and of which he was tenant by the curtesy; the two sons being tenants in common of the remainder in fee. Upon this tract the testator had made improvements. Under these circumstances, the first and principal object was to confer on Benjamin the testator’s real estate, together with a small part, in severalty, of the descended tract, and to secure to John, in severalty, the enjoyment of the remaining portion, at least for life, and, in a certain event, in fee simple. To carry this object into effect, he entertained the desire to establish a more convenient line of division between the two tracts than then existed. Accordingly, he described a line of separation which he declared should be the boundary of his sons’ respective possessions, and directed both equally to support the fence and clean out the ditch.” But, aware that he lacked the power to establish authoritatively the new boundary, or to devise the land which had been of his wife, he endeavoured to attain his object by imposing on the brothers certain conditional duties. To this end, after having given to Benjamin all his estate, with certain exceptions in favour of John — among which were the improvements he had made on his wife’s farm — he willed, “if John marries and has children, Benjamin to make John .a title for his half of his mother’s land, which is a condition of this my will; still, John to have the use of Benjamin’s half of his mother’s farm, according to the above-described bounds.” And again, he said, “I make the above a sine qua non; and if either attempts to break it, is to have no benefit to my estate, but all to go to the one willing to fulfil.” Applying a strictly grammatical rule in exposition of a very ungrammatical clause, it is argued that the sentence I have italicised is only applicable to John’s holding as tenant for life; and, consequently, the new line of division is to subsist only so long as John remained tenant for life of Benjamin’s share, and will be at once obliterated by the performance of the condition creative of a fee. Literally, the clause may convey such a meaning. But looking to the whole will and the evident design of the devisor, this view of it -is too narrow. No reason has been, or can be suggested, why a temporary character should be assigned to the new boundary; and as the idea is in direct hostility to the leading intent, to which reference has been made, we must not suffer this to be overborne by a technical construction of a sentence composed by one obviously ignorant of artificial rules. The best answer to the reasoning in support of such a construction, is a reference to all contained within the four corners of the paper. Read in a spirit of candour, it carries conviction that the testator regarded the new line as essentially conducive to the convenient occupation of the two farms, whatever might be the quantum, of estate held by his sons, and therefore intended it should be a permanent demarkation.

How then do the devisees stand ? It is part of the case that each of them accepted and entered upon the enjoyment of the several devises and bequests made in their favour, respectively. Benjamin, immediately after the death of the testator, took possession of the land given to him up to the new line of division, while John has received the chattels bequeathed to him, and, with the acquiescence of Benjamin, holds, as of his own estate, all the land which descended from his mother, save the small portion cut off by the new line. In short, both have recognised all the provisions of the will as binding upon them, and manifested a settled intent to carry it into effect. We are thus presented with a case of election under a last will. This springs from the well settled equity that prohibits claims in repugnant rights, and, as a consequence, says that he who claims an estate or other advantage by devise, shall not be permitted to disappoint any part of the will, but is bound to acquiesce in all its provisions. "No man,” says Lord Alvanley in Whistler v. Webster, 2 Ves. jun. 367, shall claim any benefit under a will, without conforming, so far as he is able, and giving effect to everything contained in it whereby any disposition is made, without reference to the circumstance whether the testator had knowledge of the extent of his power or not.” Thus, if one devises land entailed, or under settlement, and also lands in fee simple, it is on the implied condition that each party shall acquit and release the other; and one who takes the fee simple under the will cannot claim by force of the settlement, or as heir in tail: Noys v. Mordant, Gilb. Eq. 2; S. C. 2 Vern. 581; Anon. Gilb. 15. In Streatfield v. Streatfield, Forr. 176, Lord Talbot thus stated the doctrine:— Where a man undertakes to devise what he has no power over, upon the supposition that his will will be acquiesced in, chancery will compel the devisee, if he will take advantage of the will, to take entirely and not partially, under it, there being a tacit condition annexed to all devises of this nature, that the devisee do not disturb the disposition the devisor has made. In Blake v. Bunbury, 1 Ves. jun. 528, our very case is thus put by Ld. Comr. Eyre. If a man takes upon himself to devise to B., lands to which he has no colour of title, ‘and which are in the possession or are the inheritance of A., to whom some part of the testator’s estate, real or personal, is also devised; A. must either renounce to the extent of his own estate, or must convey his own estate to B. But an actual conveyance is unnecessary. Where there has been, as here, acceptance under the will, it operates to estop the accepting party from denying the title of the devisee of his own estate; for an affirmance of part of the will by entering upon the enjoyment of a benefit conferred by it, is a tacit repudiation of all rights and claims inconsistent with the other dispositions made by it, at least to the extent of the advantage derived under it. This principle has been applied in our own cases of Hamilton v. Buckwalter, 2 Yeat. 389, Cauffman v. Cauffman, 17 S. & R. 16, and Stump v. Findlay, 2 R. 174. In the first two of them it was held that a widow who had taken under her husband’s will as devisee, was thereby barred of her claim to dower, for, said the court, no one can come into a court of justice claiming in repugnant rights; and in the last, one claiming under a devise was not permitted to set up a paramount title, derived through the latter. Chief Justice Gibson, in giving expression to the opinion of the court, uses this emphatic language: “ In courts of law as well as of equity, no one can claim under a deed or will, without claiming under the whole of it, or take one clause and reject the rest; the whole must be confirmed, or the whole abandoned.” “A devise of the whole is in confidence that the devisee would do no act to defeat the testator’s intention as to part, and the devisee having elected to take under the will, shall not be permitted to claim in repugnant rights.”

Under the obvious application of this doctrine, Benjamin’s recognition and acceptance of the devise in his favour, for ever precludes him from impeaching the extent and validity of' John’s possession, ’and, upon the fulfilment of the prescribed condition of marriage and issue, his several fee simple estate in the lands which descended from the mother, excluding the small portion assigned by the will to Benjamin. On the other hand, John’s assertion of the will as an instrument of title, effectually prohibits him from calling into question Benjamin’s absolute estate in that portion. The acts of each have perfected the title of the other, and constitute him master on his side of the new line of division, irrespective of a formal conveyance. But in addition we have here an actual assurance executed by Benjamin to John. It is objected that under the will, no such conveyance can be made until after the birth of legitimate issue to John. But why not ? There is nothing either in the will or in the law prohibitory of an assurance to operate in futuro, on the happening of the prescribed contingency. It certainly was not necessary in strict fulfilment of the will; but anticipation of the time contemplated by the testator,' detracts nothing from the efficacy of the instrument. If it be further ob* jected and admitted, that its delivery has never been perfected, it is at least evidence of Benjamin’s intent to comply with the directions of the will, and its qualified rejection by John may be taken as additional proof of a like intent on his part. *

The only objection against Benjamin’s right to convey six of the fourteen acres, the subject of his covenant, springing from his supposed want of title, is answered by the remarks I have made. The judgment rendered in favour of the plaintiff below, by the Court of Common Pleas, was therefore correct.

Judgment affirmed.


author: Rogers, J.

text:
    Biddle et al. v. Starr.
    Where an act of Assembly declares that the court shall, if the parties are entitled to demand partition, direct notice of the writ to be given; the court are not to decide whether the parties have title before they direct the mode of service.
    The allegation that the demandant and defendants, together and undivided, do hold, is the proper averment of a tenancy in common.
    Where there were several tenants in common, and one died leaving a will which was contested by his heirs, an act of Assembly authorizing partition to be made, and directing all persons and corporations claiming under liim, whether as heirs or devisees, to be made parties, and their purparts to be set out and conveyed to trustees for such of them as may be entitled, or the proceeds, if sold, paid to such trustee giving security — is constitutional, and the adverse claimants under the deceased co-tenant are properly joined in the proceedings.
    A sheriffs return of a writ ordered to be served by publication in certain newspapers, is sufficient, if it state a publication made “pursuant to the order of the court.”
    In error from the Common Pleas of Schuylkill.

      Jan 4. Churchill Houston, by his will, directed his executors to pay an annuity to his widow for life, and gave legacies to several persons and to his executors in trust for others and for certain, charitable associations and corporations, and the residue of his estate to his several legatees in the proportion of their respective legacies.
    By an act of Assembly, the persons, or any one of them, who held an undivided interest in lands in Schuylkill county, which were held in common with said Churchill, were authorized to issue a writ of partition, in the usual form, for such lands; “and the said court shall, if the said parties are entitled by law to claim and demand a partition thereof” order notice to be given to his executors, and publication to be made; which service should be considered as full, as to both heirs-at-law and devisees, as if the writ was served personally on each of them.
    Upon*proof of such service on the executors, and publication, the court was authorized to make partition; and all parties claiming under said Churchill, whether as heirs or devisees, might appear, and all orders, &e., were to be as obligatory on them as fully as if living and made parties thereto. That the share whereof said Churchill died seised, or the proceeds, if directed to be sold, should be conveyed in severalty or paid to a trustee to be appointed, giving security to be held for the use of persons entitled thereto. That the partition should vest in the parties and the trustee their several interests and that of said Churchill, whether the heirs or devisees of said Churchill should be determined to be entitled thereto, and a sale should pass his interest. That the executors, heirs, and devisees of said Churchill who might become parties, should be taken to represent his interest; and neither they nor any other person should object that they claim his purpart adversely to each other.
    A writ of partition was then issued by Starr against Biddle et al., and against divers parties and corporations claiming under Churchill Houston as heirs or devisees, and his executors, with notice to every person claiming under him, for a certain tract of la¡ncl whereof and whereas they the said Starr and the said defendants together and undivided do hold. • An order for publication on such parties, and for personal service on the executors, was then made by the court. The sheriff returned personal service and affidavit of publication, pursuant to the order. The narr. alleged that the plaintiff and defendants held together and undivided all that, &c.; and having set forth the proportional parts of all the other parties, averred that the following named persons and institutions claiming under Churchill Houston, deceased, whether as heirs or devisees, viz.: naming the executors, devisees, and heirs, the one-tenth, &c., hold, &c.
    The record then recited that the court, having examined the title, as well of the demandant as of the tenant, gave judgment quod partitio fiat, according to the narr.

    Whereupon this writ was sued out, and errors assigned.
    Mattery, for plaintiffs in error.
    1. The court should, under the act, have decided whether the parties were entitled, before directing publication, &c. All parties to a partition must hold together, not adversely, which the heirs and devisees do. Hence, one or the other was improperly joined. The widow was joined, which is erroneous: 7 W. 205. The service is not set out by the sheriff; but that he made publication pursuant to the order. The act of Assembly is invalid — it takes the property from both parties, claiming under Houston, and vests it in trustees, not at their request, but at the request of a mere stranger. The title of the parties, whether as joint tenants or in common, is not alleged.

      Williams, with whom was Parry, contra.
    The court cannot decide who are proper parties, until the writ is returned, and an opportunity given to be heard. The same form of expression is used in this respect as in the general acts relating to partition: after the return the court decide on this matter. The tenancy is alleged: “ together and undivided do hold,” are the words in all the precedents of partition between tenants in common: 2 Sel. Cromp. Prac. 217; Alnat. 68; 3 Chit. PI. 1391; 10 Went. 151. For it is supposed that parties hold in common, unless the contrary is alleged: Cro. Eliz. 64
    The object of the act is to obviate the objection made of the adverse claims under Houston, and with perfect fairness to them — • the share is set apart, and they may determine their rights. It is a mere question of remedy: 2 W. 433; 7 W. 301; 2 W. & S. 277-8. That the act conveys the title trustees is no objection: 2 Barr, 277. The return is complete, incorporating the order by the reference. The widow is joined as a legatee, not as widow.

      Jan. 15.
   Rogers, J.

In consequence of the death of Churchill Houston, one of the tenants in common, and the difficulties caused by a controversy among -his heirs and devisees, application was made for the passage of a law for the partition of the estate held in common. The application resulted in the act of the 13th March, 1847, entitled “An act to authorize the partition of certain real estate of Isaac Starr and others.” It is admitted that, according to the course of the common law, the proceedings are .altogether irregular; but it is contended they are in' strict conformity to the act above cited. As many as nine errors have been assigned, which will be considered in their order. It is contended, first, that the court erred in not deciding before directing the service of notice, that the parties were entitled by law to claim and demand a partition or division of the land mentioned in; the writ. I, however, see nothing in the act which alters, in this particular, the general rules and practice of the courts. The first section provides that the court shall, if the parties are by law entitled to claim and demand a partition or division, order and direct service of notice of said writ, and all other writs, rules, and orders, on the executors of C. Houston, &c. The legislature surely did not intend the court should decide on the title before the parties were summoned, and had an opportunity of being heard, for by such a procedure the defendants would be precluded fey pleading non tenent insimul, or from setting out any other defence. The act of 1807, Purd. 909, authorizes the Court of Common Pleas to issue writs of partition in all cases where lands are held in joint-tenancy, coparcenary, and in common; and the act of 1821, lb. 911, prescribes that when a writ of partition hath been or may be issued by any of the courts of this commonwealth having jurisdiction thereof, at the suit of one joint tenant, co-partner, or tenant in common, and the court shall proceed to examine the title, &c. A literal reading of these acts would lead to the conclusion that the court must, in the first place, examine the title or ascertain their jurisdiction; but this course has never been pursued, for the simple reason it would be unjust, for the reason stated. This practice is in strict conformity to all the precedents and the practice, for in no case do the court undertake to determine the title or the jurisdiction before the writs and notices áre issued. In this ease, the court decided on the title of the demandant and the defendants at the appropriate time.

Second error. — That it appears from the record, that all the defendants are not either tenants in common, joint tenants, or coparceners with the plaintiff, and are not properly made parties. It is stated in the preeeipe that Isaac Starr (the plaintiff), and the said defendants, together and undivided do hold, &c.; and this, as appears by 2 Sel. Pr. 217, 3 Chitty PI. 1391, and 10 Went.. 151, is the appropriate form. The act of 13th March, 1847, under which the proceeding is had, uses the words “ seised of an undivided interest,” which technically means only tenancy in common. If this was the only objection, the answer would be conclusive. But this is not the exception, as I understand it; but the objection is that there are persons joined in the writ who are neither the one nor the other, and therefore, as the plaintiffs in error contend, they are improperly made parties. If this were a proceeding at common law, the objection would be decisive, for this is undoubtedly the state of the record as presented, but it must be remembered this is,a proceeding under the act, and in strict conformity to it, and becomes necessary in consequence of the peculiar situation of the estate of Houston, one of the tenants in common; and the same answer applies to the third and fourth errors, which are, that if the title of the devisees is good, the heirs have no interest, and cannot be parties, and that the judgment of partition, and setting out the tenth part of the premises to the persons and institutions named, claiming under Churchill Houston, deceased, either as heirs or devisees, is uncertain, and that the judgment in the alternative is void for the same reason. All these objections, as before observed, would be fatal but for the curative effect of the act. The parties, it is true, who are entitled to this purpart are uncertain, as that depends on the decision on the will of C. Houston; ■ but the share to which one or other is entitled is perfectly certain. One of the objects of the act was to obviate these difficulties, and the legislature has been very careful to guard the rights of all, by providing that every person coming within the description of heirs or devisees, viz: every person who may be eventually found to have an interest in his share, shall be made parties. Thus the act provides that notice shall be given, and the second section that the notice shall include both the heirs and devisees. The third section directs that C. Houston’s purpart shall be held in severalty, in trust for the persons entitled. And this became necessary, because they claim adversely to each other, and the estate could not be parted between them, nor could their respective rights be settled. If either heirs or devisees were clearly entitled, there would be no obstacle in the way, and an act would not have been required. The fourth section provides that the interest of C. Houston should be set out, and remain firm and stable, whether heirs or devisees may be entitled, and the parties shall not object that they claim adversely to each other. This seems to have been the object of the act; and to remove the difficulties interposed by the peculiar state of things, the act was passed.

But it is said the legislature could not authorize a partition among persons having no interest, nor in the alternative; because partition under the act would destroy the will of Churchill Houston, by the appointment of a new trustee; that if the heir is entitled, it puts the property in trust without his consent, and divests him of his rights. In order to determine this exception, it is necessary to advert to what the act does provide. The act provides that the parties interested in common with Houston, may issue a writ of partition; it directs that notice be published once a week for six weeks in two newspapers; that on the proof of the service of such notice on the executors, and the publication thereof, the court shall proceed to make partition, and all persons claiming either as heirs or devisees may become parties; that the share of Houston shall be conveyed to a trustee, or that the money be paid to him if the property be sold, on proper security being given; that the partition shall remain firm and stable; and that the sale, if any be made, shall vest a good title in the purchaser; and that no objection shall be made on the ground that parties claim adversely to each other.

It will be noted that the act became necessary on account of' the death of Houston, and the dispute in relation to his will. Tho legislature gave the remedy as an act of justice, to relieve the other parties from a difficulty for which they were not at all responsible. Had then the legislature power to pass the act in question ? and on this point we entertain no doubt. When a right exists without an adequate remedy, the legislature may jn’ovide one-: Turnpike v. Comth. 2 W. 433. This indispensable and salutary power must reside somewhere, and nowhere can it be intrusted with more safety than with the legislature; and when wisely and prudently exercised, it produces great benefit to the people. It moreover has been exercised so often, that to doubt the power at this time would occasion incalculable mischief, as it would infallibly cause doubts to be entertained of titles held under and according to such special legislation. This was a case, which, from the accidents of death, and the conflict of titles -among the different claimants, for and against the will, required legislative interference. It was but an act of justice to other tenants in common, who were not in default, and whose interest would" suffer if obliged to wait, until these controversies were finally settled; and it was impracticable for them to proceed without the aid of. an act removing the obstructions thus thrown in their way. The' remedy provided was a provision for the joinder of adverse claimants, which worked no injustice, but what with characteristic caution gave every one a right to be heard, and enabled them to see that their interests were protected. The same notice, and proof of it, .is described to be given as in other cases, and the proceeding .in other respects is similar to the accustomed practice, except the joinder of adverse claimants and the executors, which became indispensable from the peculiar situation of the estate. The act merely provides a remedy in a particular case, altering no right, but preserving the rights of all parties; a course as fully sanctioned as Hepburn v. Curts, 7 W. 301, where it is held, that the legislature may pass retrospective laws to affect suits pending, to give a party a remedy where none existed before, and to remove an impediment in the way of redress. In that case one person was a member of two firms, and one firm sued the other: the same person being plaintiff and defendant, was held to be a fatal objection. The legislature passed an act after suit brought to remove the difficulty, and after argument it was held valid. To the same purport is Braddee v. Brownfield, 2 W. & S. 277, where the legislature ordered judgments to he opened, and new trials to be granted, saying most truly that legislation in cases pending in court was subject to abuse, but still it was within their equitable jurisdiction, which was of a remedial character. This is carrying the legislative power much further than is claimed in this case. But the principal objection to the act seems to be that the property of the heirs is put into the hands of a trustee without their consent. But of this no just complaint can be made, as it is to be done under the control and supervision of the court, and is intended to preserve the estate for those who may be ultimately entitled. And this course is not without precedent, and has been expressly sanctioned in Norris v. Clymer, 2 Barr, 277. That case was not the creation of a trustee, and in that respect it differs from this; but it was a special act, authorizing sales on groundent, &c., by the trustees appointed by the will," they giving security on receipt of the money, to be applied according to the trusts of the will. This was a power of a much more questionable character than this, which nevertheless the court pronounced constitutional; it is certainly no objection to the partition, that the court did not set out the share or purpart of each defendant, as by the act the share of C. Houston is directed to be conveyed to trustees, and Was not intended to be divided, and could not be allotted to any person, as the claims of the heirs and devisees are in conflict. When the rights of these persons are settled, the owners of his share as set out may be divided among them by another writ of partition.

It is objected that the return of the sheriff does not set out the service of the process, and is wholly insufficient and void. The act directs that the court shall order and direct service of the notice of the writ; and that, on proof of such service and notice, and publication of the writ, the court shall be authorized to proceed and make partition of the lands according to law. The notice is ordered to be given in the usual manner, which would seem to have been done. The sheriff returns that all the defendants reside out of his bailiwick; that he served the writ by publication, and made personal service on all the three defendants, and he annexes an affidavit of the fact of publication. We think the return sufficiently particular to answer all the requirements of the act, without stating how or where the publications have been made.

It is also said there is error, because the widow, who can in no event have an estate in the land, is joined as one of the defendants. As widow, she undoubtedly cannot; but, as a legatee in the will, she is entitled to a share of the residue, and is a residuary legatee; and, as such, has an interest distinct from her dower. This act requires all the heirs and devisees to become parties to the proceedings; and the wife, as a residuary legatee, could not be omitted. The executors are made parties by the terms of the act, and all persons claiming under C. Houston, either as heirs or devisees. This was intended to protect the rights of all persons who might have an interest, of which no just complaint can be made.

Judgment affirmed.


text:
    Mackey v. Hodgson.
    A foreign attachment suspends the interest on so much of the debt attached, as will be required to satisfy the plaintiff’s demand, whether the defendant be the real owner of the debt or not — if a debt is wrongfully attached, the owner has his remedy over against the plaintiff in the attachment.

      Under the act of 1836, garnishees in foreign attachment are not entitled to any allowance for their trouble.
    In error from the Common Pleas of Chester.

      Jan. 4. — This was an action of debt on a bond of Hodgson, the defendant, to the plaintiff. The defendant showed a foreign attachment at the suit of Sherer against one David Mackey, in which the sheriff was commanded to attach all moneys due on obligations in the name of Mary Mackey, the present plaintiff. The debt claimed in that action was $1,000, and the process was served. This attachment was finally settled by the defendant there, and the questions below were: first, whether the present defendant was liable for interest on so much of his debt as was necessary to satisfy the attachment during the pendency of those proceedings; and, second, whether he was entitled to retain an allowance for his trouble as garnishee.
    On the trial below, the defendant gave evidence to show that David Mackey, the defendant in the attachment, was the real owner of the bond. This consisted in part of his own declarations, and was objected to by plaintiff, and assigned for error.
    The court instructed the jury there must be evidence sufficient to raise a well founded doubt whether David or Mary Mackey was the owner of the money due on the bond, to suspend the interest, and if so, defendant was entitled to a liberal allowance for his attendance as garnishee.

      Darlington and Lewis, for the plaintiff in error,
    argued: first, that the evidence was inadmissible; second, that the act of 1836 has omitted the provision of the former act, which made an allowance to garnishees, which was therefore repealed. Nothing is allowed by the custom of London, nor under our domestic attachment or attachment execution process, nor was there any evidence of expenses on the part of the garnishee.
    Hemphill, contra.
    Whether the fund belonged to David Mackey was immaterial, the garnishee must retain it, and the sheriff or plaintiff in the attachment answers the damage done the real owner: 1 Y. 280. Ry the act of 1705, the garnishee was allowed a compensation for his trouble and expenses, and it may be said to be the common law of the state in such cases.

      Jan. 16.

   Rogers, J.

It is a general rule that a garnishee in a foreign attachment is not liable for interest pending the attachment. The exceptions to the rule are fraud or collusion of the garnishee, or any unreasonable delay caused by his conduct. And the general rule prevails, whatever may be the event, as it is impossible for him to predict the issue of the attachment suit. Let a foreign attachment be determined which way it may, the garnishee is excused from paying interest in the mean time: Serg. on Att. 115, 169; Fitzgerald v. Caldwell, 2 Dall. 215; 1 Y. 280. He is brought into court by compulsion, and should not suffer for doing what the law enjoins. If the defendant in the attachment has any remedy, it is against the plaintiff in the foreign attachment; for the debtor is not bound to pay at the peril of being again compelled to discharge the same debt. The application of these well settled principles renders unnecessary nearly all the evidence introduced on the trial, which was worse than useless, as it served to perplex the jury by directing their attention to an immaterial issue. Of what consequence was it whether Mary or David Mackey was the owner of the debt ? It was enough for the defendant that he was prevented from paying the debt by the pendency of the attachment, and that he acted in good faith. That he had any agency in procuring the attachment is not pretended, nor is it alleged he acted in bad faith. As this case goes down for another trial, it may be useful to observe that we fully concur in the decision of the case of Sickman v. Lapsley, 13 S. & R. 224, that where a foreign attachment is laid for a smaller sum than is in the hands of the garnishee, he is not justified in withholding from his creditor more than sufficient to cover the debt claimed in the foreign attachment. Here, the writ commands the sheriff to attach David Mackey to answer M. Sherer of a plea, that he render unto her f!1,000, which unto her he owes. That was the limit of his demand; there was therefore nothing to prevent him from paying the residue of the debt, and, consequently, on that amount he is justly chargeable with interest.

But the court instructed the jury that he was not only exempt from the payment of interest, but that the defendant was entitled to a reasonable allowance for his lost time and expenses in attending to the attachment suit. And this direction was right under the act of 1105, § 2, which enacts that he should be allowed out of the goods attached reasonable satisfaction for his attendance. But this provision we think is altered by § 45 of the act of 16th June, 1836, relating to the commencement of actions. It is difficult to resist the conviction that the latter act was intended to supersede, in this particular, the 2d section of the former act. The two sections are substantially the same, with the exception of the clause allowing expenses for attending to the attachment. That it was designedly done, does not admit of question. And for what purpose, except repeal, we cannot imagine. It is perhaps useless to speculate as to the reason of this remarkable omission, and yet it is not difficult to assign one. The legislature may have supposed it was impolitic to throw an additional temptation in the way of the debtor, inducing him to collude with the plaintiff in the attachment, thereby affording him a pretence for non-payment of his debt, or retaining other-effects in his hands. • ■

Judgment reversed, and a venire de novo awarded.


author: Burnside, J.

text:
    Hannum’s Appeal.
    One found an habitual drunkard cannot revive a note, barred by the statute of limitations.
    From the Common Pleas of Delaware Co.

      Jan. 5. In 1842, Hannum was appointed committee of Dick, found an habitual drunkard. In 1846, he filed his account, claiming credit for a note dated in 1817, drawn by- Dick in favour of S. Hannum. Dick’s administrator excepted to the credit. The accountant gave some evidence of a conversation respecting the note between Dick and S. Hannum, but when it was did not appear. If there was then any recognition of this note, which it was difficult to collect from the evidence, it was an offer to include it in a bond to be given for money loaned. He also proved that after the inquest, Dick had directed the holder to call on the committee and procure the money. The committee held the note as a gift from S. Hannum, and the court disallowed the credit.
    Edwards, for appellant,
    argued that there was no obligation to plead the statute, and that the drawer might waive it.

      L. Darlington, contra.
    After inquest found, he was 'unable to contract: Clarke v. Caldwell, 6 W. 139.

      Jan. 15.
   Burnside, J.

The regard paid to the statutes of limitation, both in England and in every state of this Union, has undergone a great change in the present century. They are now considered as resting on sound policy, and the courts are no longer disposed to adopt a forced construction to evade their effect: 1 Pet. 360 ; 3 Ib. 270. At this day, they are emphatically declared to-be statutes of repose; and no court is at liberty to break in upon their settled construction. They are entitled to the same respect as other legislative enactments: 8 Cran. 72.- It is now settled that the acknowledgment of a debt, to take a case out of the statute, must be clear, plain, unambiguous, and express: Allison v. James, 8 W. 380. It ought to be so distinct and palpable in its extent and form, as to preclude hesitation: 6 Ib. 220; 10 Ib. 172.

. When these principles are applied to the evidence in this case, it will be found that there is no error in the decree and judgment of the Common Pleas. The note in question was dated in September, 1817, payable in sixty days. Robert E. Hannum was appointed the committee of Dick in June, 1842 — more than twenty-four years after the note was due. The only evidence to revive this old debt is the testimony of Eliza Hannum and Samuel Hannum, two of the children of Samuel Hannum the elder, and the sister and brother of Robert E. Hannum, the appellant.

Eliza proves that Dick, before the inquisition was held declaring him an habitual drunkard, wanted to borrow money from her father; which, she says on cross-examination, was f300. He told her father he might include in the bond for the money the note for the horse. The money was not lent nor any bond given at that time; and they both further prove, that after the inquisition, Dick, in a conversation when he was at their father’s, told him to send the note in question to Robert, who would pay it. At 'this time, he had no power over his estate. We all think the evidence does not show such a clear, plain, and express acknowledgment of an existing debt, on a promissory note more than twenty years old, as would revive the debt, and take it out of the statute of limitations. The first was conditional, and the second when his committee had the care and management of his person and estate. To me it is manifest, if the old note had not been in the family, and one of them, Robert E. Hannum, had not been the committee who received the note, without payment to his father of the amount, with the hope that he would get a credit for it, it would have slept to the end of time, and no attempt would have been made to have charged Dick’s estate with the amount of principal, without the interest.

The decree of the court and judgment is affirmed.


author: Gibson, C. J.

text:
    Chrisman v. Wagoner.
    Where testator bequeathed in trust for the separate use of his daughter S., to be paid to her at such times as she may require, her receipt only to be a discharge — the trustee to keep the same invested so long as it remained in his hands, -with a power to S. to appoint by will, “and in case she should die without having -withdrawn the legacy from the hands of the trustee,” then over: Held, there was an implied power in S. to demand and receive the principal sum during her husband’s life.
    In error from the Common Pleas of Chester.

      Jan. 6. Case stated. Wagoner by his will bequeathed one-tenth of the residue of his estate to Chrisman, in trust for the separate use of testator’s daughter Sarah (the plaintiff), to be paid to her at such times and in such sums as she may require, her receipt, and hers only, to be a discharge; the said Chrisman to invest the same, and keep it invested, so long as it remains in his hands, in good real securities — then followed a power to Sarah to appoint by will: “ and in case she should die without having withdrawn the said legacy from the hands of the said trustee, and without making an appointment, then” he gave it to his other children. The plaintiff had been married to one Whittock some years, before; but she had never cohabited with him, nor used his name. Defendant had received the money, and the question submitted, was whether the plaintiff “ is entitled now to receive the legacy.”
    The court (Nile, P. J.) gave-judgment for the plaintiff.

      Pennypaoher, for plaintiff in error,
    argued that the intention was to create a trust to pay her such sums as her necessities might require, and that no implied power existed in her, under the rule of Lancaster v. Dolan.
    Lewis, contrá,
    argued that there was a distinction between real and personal estate as to that rule; but the court said it applied to both species of property. He then argued that there was a plain right by implication given her over the corpus of the legacy, to be exercised by herself alone, whenever she saw fit.

      Jan. 8.
   Gibson, C. J.

The English rule which gives a married woman the entire control of her separate property so far as her power has not been restricted, by the terms of the settlement, is reversed in this state, and we hold that she has no power which is not given her, either expressly or by necessary implication. What then is the purport of the bequest under which the parties respectively claim? “I give and bequeath to John Chrisman, the one-tenth of the residue of my estate, for the separate use of my daughter Sarah, to be paid to her at such times, and in such sums, as she may require, her receipt, and hers only, to be a discharge; the said John Chrisman to invest the same, and keep it invested, so long as it may remain in his hands, in good real securities. And I hereby empower my said daughter, by her last will and testament, or by her appointment in the nature thereof, made in writing and executed in the presence of two credible witnesses, to dispose of the said legacy; and in case she should die without having withdrawn the said legacy, and without making an appointment or disposition thereof, then I give the same to all my children.” If she was to have the control of the whole interest, what was the object or use of interposing a trustee ? Being married, though her husband had deserted her, she could not else have bequeathed it. It Was only by giving her a restricted interest in it during her life and a power over it at her death, that she could be enabled to do so. The husband was known to be alive at the making of the will, as he is perhaps still, and may outlive her; but the testator was evidently not afraid of his influence over his wife, who had never cohabited with him or borne his name; and if he had entire confidence in her ability to resist his allurements or his intimidation, we are not bound to protect her further than he thought fit to do. But there was a plain and a pressing reason for the interposition of a trustee to her separate use in order to prevent the husband from recovering the legacy by an action at law against her will, and hence the provision that her receipt alone should be a discharge. But that the testator considered the legacy to be as safe from the husband in her hands as in the hands of her trustee, is evident from the provision that it should be paid to her not according to her necessities, but in such sums as s.he should require; and from the emphatic provision that “ in case she should die without having withdrawn the said legacy from the hands of the said trustee,” without having made an appointment or a disposition of it, his children then living should take it. This surely implies that she had power to withdraw it and appoint it to particular uses, or to let it go over to the other children under her father’s will. From the provisions of the will, therefore, it is evident that the purpose of the testator was to give his daughter the complete control of the legacy, without subjecting it to an action by the husband or an attachment by his creditors.

Judgment affirmed.


text:
    Bank of the United States v. Macalester.
    Where funds were deposited for a special purpose, with notice to the receiver; he cannot refuse to apply them to the object for which they were deposited, on the ground that a debt is due him by the depositor.
    The state of Illinois created two separate funds for internal improvements — the one for general purposes, the other for the construction of a particular canal. The canal was under the superintendence of the canal commissioners, and a loan was authorized and negotiated on bonds bearing interest, payable at A., B., and P. ‘ The funds of the canal commissioners were deposited with the Bank of the United States at B. An account was also opened in the name of the fund commissioner of Illinois with the same parties, which account was overdrawn. Held, that the Bank of the United States, having notice of the creation and issue of such bonds and of coupons, entitling the bearer to receive the interest to accrue thereon at the Bank of the United States, and receiving on deposit funds sufficient to pay such coupons under an agreement to pay them, could not refuse payment on the ground of a debt being due by the state on the fund commissioner’s account.
    Assumpsit against a depositor for the amount of an overdraft, is a waiver of the tort, and subject to the general right of set-off.
    The holder of coupons, payable to bearer, may maintain an action thereon against the party bound to pay such coupons, or use them as a set-off against him, there being no proof that they were unlawfully obtained.
    In error from the District Court of Philadelphia. •

      Jan. 15 and IT. Assumpsit for money advanced and money had and received. Plea, set-off. It appeared the defendant kept a deposit account with plaintiffs, and on the 1st of September, 1841, overdrew his account'$2,888.93; to recover which, this action was brought. To sustain his plea, defendant proved he was the holder of sixty-nine coupons of Illinois and Michigan canal stock, which were in the following form:—
    Illinois and Michioan Canal Stock.
    Cashier of the Bank of the United States, pay the bearer in Philadelphia, or at your agency in New York, thirty dollars, on the first Monday of July, 1840, for six months’ interest on bond No. 1180. J. D. Whiteside,

      Treasurer State of Illinois.

    §30. No. 1180.
    It was proved by testimony, the admissibility of which was not decided by this court, that these coupons had been deposited by the holder with Macalester & Stebbins, as collateral security for a loan of $1,500. The defendant, who was a member of that firm, proved an authority from Stebbins to -himself, to use them as a set-off to the present demand.
    The defendant also gave in evidence an act of Congress granting certain lands to the state of Illinois, to be sold, and the proceeds applied exclusively to the construction of the Illinois and Michigan Canal. And also an act of the legislature of Illinois, creating a hoard of commissioners styled “ The Board of Commissioners of the Illinois and Michigan Canal,” and authorizing the governor to negotiate a loan and issue bonds bearing interest, payable in New York, Philadelphia, and Boston, to be called “Illinois and Michigan Canal Stock;” and the proceeds of the loan and other funds raised under the act were by the act exclusively devoted to the purposes of the canal, and pledged to the payment of the principal and interest of the bonds. He further proved that a deposit account had been opened with the plaintiffs, in the name of the “Illinois Canal Commissioners,” in which there was a balance to the credit of the account, of $10,149. He also proved a demand made on plaintiffs to pay these coupons, and gave in evidence the correspondence between himself and the plaintiffs on this subject. In their cashier’s letter, it was stated that the state of Illinois was indebted to the bank, and a further advance deemed inexpedient; that the late fund commissioners’ account was overdrawn $28,803, and the securities would not produce $16,000; “if the whole of the indebtedness of the fund commissioners were paid to the bank, the credit to the canal fund commissioners would of course be subject to pay the coupons in question, but not otherwise.”
    It also appeared that by an act of the legislature a separate board of commissioners was created by the state of Illinois, styled the “ Board of, Fund Commissioners,” who were authorized to negotiate a loan for the purpose of general internal improvements.
    The plaintiffs, to rebut the right of set-off, proved that a deposit account had been opened with them in the name of “ R. T. Barrett, Fund Commissioner of Illinois,” and that this account had been overdrawn $28,933.
    Stroud, J., instructed the jury : “ If the Bank of the United States, knowing that the state of Illinois had created a stock called ‘Illinois and Michigan Canal stock,’ and had issued coupons authorizing payment to the bearer of the same of a sum of money therein specified, received funds from the state of Illinois sufficient to pay all such coupons, under an agreement to pay the bearer of the same; and if the defendant, being the bearer' of the coupons in evidence, presented them to the bank on the 9th of July, 1841, and demanded payment thereof, and such payment was refused on the ground that the state of Illinois had become indebted to the bank by overdrawing on the credit of another fund derived from the same state, under an agreement to apply it to the payment of a different species of state securities; the defendant is entitled to an allowance for the amount of the coupons in evidence so held and presented for payment.
    “ If the jury believe that the coupons were held by the defendant as collateral security for an advance made upon them to a third person, who was the owner of them when the advance was made, this would not deprive the defendant of the legal right to use them as a set-off.”
    The exceptions to the evidence were: in admitting the acts of Congress»and of the legislature in evidence — these were not on the record, but are stated in the opinion of this court — in admitting the coupons and the evidence of Stebbins, who proved the receipt of the coupons by himself as collateral security for a loan. The objection was, he was a partner of the plaintiff. The others are fully stated in the opinion of this court.
    The charge of the court, and the refusal to charge that the act of the plaintiff was a wrongful act, from which he could not derive any advantage, were also assigned for error.

      Brooke and Rawle, for the plaintiffs in error.
    The existence of any trust, or the knowledge and assent of the bank to hold the moneys deposited for specific purposes, was denied, and was to be proved by defendant. All they knew was that the state, for certain reasons, had two deposit accounts, and was on the whole largely indebted to the bank. The defendant must show that the state could not control the two funds, or his right is gone. To do so he must show a deposit on a specific trust, and notice to the bank. For this purpose he read the act of Congress, which was irrelevant, if on no other ground, because it was on condition the canal should be commenced within five years. The acts of the legislature pledge certain funds to the distinct classes of improvements, but they are all derived from the same source. And had this not been so, there was no proof that the fund deposited was derived from a particular source. Could the bank refuse payment of a cheek on the ground of the money being trust funds ? Certainly not, they could not look to that; but if, as contended, the money belonged to the holders of outstanding coupons, this would be the result. But clearly, there is no evidence of notice to the bank of the existence of these statutes.
    The coupons were inadmissible, for there was no evidence of plaintiffs’ title. Possession is not so, for they are not negotiable. They are neither note, check, nor bill. They'are mere certificates of interest belonging to the holder of the bond, and inseparable therefrom but by his act.
    There is no authority given by the state to create such distinct evidences of debt: 13 East. 509; 7 Bing. 284. In these cases it was held that E. I. bonds, though passing from hand to hand as currency, are not negotiable, and so as to' coupons, the jury finding they were not so by usage.
    The act of the plaintiff was a stratagem which he cannot avail himself of. It was a tort for which an action would lie, and the mere form of action cannot benefit him. ®
    Stebbins was incompetent as a partner in the transaction by which these coupons were obtained: his assignment to defendant did not divest his interest in the suit.

      Cadwalader and H. D. Gilpin, contrà.
    The form of the action waives all questions as to the tort. The- questions argued here can scarcely be considered as proper for this court. The facts that the fund was appropriated to the coupons and the canal, and so known to the bank, are found by the jury, and the admission of our right by the cashier subject to the one question, is a sufficient answer to the argument here. That one question is the right of the bank to appropriate a special deposit to the payment of a general balance. They rested on this alone. To sustain it, would be to sustain a breach of faith, and to compel the state to commit a fraud. The acts of the legislature show that certain funds were appropriated to these bonds. It is admitted this deposit was made with those funds, and yet the bank claims the right to appropriate it to another purpose contrary to the will of the state. The effect of the coupon was to transfer the right to so much of the fund to the bearer. The means of thus transferring the right is the very object of a bill: Ferriere Dict. 259, b; 10 Merl. Rep. 6 (b); 5 Merl. Quest. 25 (a. b.); Pardes, 332; 5 Wheat. 288; 3 T. R. 182; Story on Bills, § 13. Whether this was a legal or equitable transfer is immaterial, for the right of set-off is much broader under our act than the English statutes, and includes equitable, as well as legal claims: 1 Yeat. 574; 1 S. & R. 478; 2 Dall. 238; 1 Raw. 230; 12 S. & R. 445. 7 Bing. 284, was a case where there was an unlawful detention. Over this particular fund thus transferred, the bank had no right nor any lien, for it is well settled, that a fund received for a particular purpose cannot be applied to any other by the agent:
      5 T. R. 492; 8 M. & S. 344; 15 Mass. 397; 1 J. C. R. 397; 1 Raw. 330; 16 Ves. 279.

      Jan. 26.
   Rogers, J.

Without stopping to inquire whether the defendant was strictly justifiable in resorting to a stratagem to obtain what he considered a legal advantage; or to determine whether the imputed injustice of the proceeding was a wrong to the teller rather than the bank, we are of opinion, that under the circumstances, there is nothing in the transaction which precludes the defendant, if otherwise entitled, to claim the benefit of a set-off. If there was a tort, the plaintiff has thought proper to waive it by bringing an action of assumpsit on the common counts, instead of an action for the deceit. That a party may elect to waive a tort, and sue in debt or assumpsit, is a.proposition too well settled to be now questioned. When the plaintiff sues as in contract, the foundation of the action being in tort, the defendant is entitled to set-off; for although not entitled to such a defence when the action is for the tort, yet, when the form of the action is changed to contract, it is otherwise. For these principles, which are undisputed, I refer generally to the authorities cited.

To the set-off as claimed by the defendant, and to certain decisions of the court in the course of the trial, several objections are taken.

It is said the court erred in admitting in evidence 'the act of Congress of March 2d, 1827, and the acts of the legislature • of Illinois, passed in January, 1836, entitled “An act for the construction of the Illinois and Michigan Canal,” and the act of the same state, entitled, “An act to establish and maintain a general system of internal improvement,” passed the 27th of February, 1827, with its supplement.

The acts referred to were' offered for the purpose of showing the source from which the deposit in the Bank of the United States to the credit of the Illinois canal commissioners arose. -For these purposes the acts were legitimate evidence. The Congress of the United States grants to the state of Illinois, to aid in making a canal to unite the Illinois river and Lake Michigan, a certain quantity of land therein described, the land to be subject to the disposal of the legislature of the state for these purposes and none other. Provided that the canal shall be commenced in five, and completed in twenty years, or that the state shall be bound to pay for land previously sold, and the title of purchasers under the state to be valid. As an objection to this part of the evidence, it is said, that it does not appear the canal was commenced within five years, nor that it was completed within twenty years. But to this it is satisfactorily answered, that the contrary does not appear, and that we cannot assume that the grant was invalid for non-compliance with the terms and conditions of the act. But he this as it may, we cannot rule the evidence to be irrelevant, as it tends to show, in connexion with the acts of the state legislature, and the corresponding deposits made in bank, in which the funds are kept separate and distinct, their nature, and origin. Although we do not consider the act of Congress, nor the acts of the legislature of the state, absolutely essential to the defence, yet they are not so irrelevant as to call for a reversal on that exception. After a trial on the merits, evidence ought to be clearly irrelevant, and of a nature to work injustice, before we can remit the cause for another hearing. Very considerable latitude must be given to the court that tries issues of fact, as to the order and materiality of evidence, otherwise injustice may be done by reversing a judgment for an error so immaterial as not to have the slightest effect on the verdict.

The act of June 9th, 1836, is admissible; for it in a more distinct manner not only shows the source from which the fund in the bank arose, but in other respects has a bearing on the matfer of controversy. The governor is authorized to negotiate a loan on the credit of the state, of $500,000, to aid, in connexion with such other money as may hereafter (evidently relating to the act of Congress before noticed) be received from the government of the United States, in the construction of the Illinois and Michigan Canal. He is authorized to issue certificates of loan, to be called the Illinois and Michigan Canal Stock, signed by the auditor and countersigned by the treasurer, bearing interest at six per cent., payable semi-annually at the Bank of the State of Illinois, or in New York, Philadelphia, or Boston; mid the faith of the state is pledged for the payment of principal and interest. The money loaned, premiums on sales of stock, proceeds of canal lairds, town lots, and all other money arising from the contemplated canal, to constitute a canal fund to be used for canal purposes, and for no other whatever, until the canal is completed. The governor is authorized to appoint a board of canal commissioners, to be called The Board of Commissioners of the Illinois and Michigan Canal.” The board of canal commissioners is incorporated; and the revenue arising from the canal and from land granted, or that may be hereafter granted to the state of Illinois by the United States, for' 'the construction of the canal, and the nett tolls thereof, are pledged for the principal and interest of -the stock.

The act of February 27th, 1837, to establish a general system of internal improvement, creates a Board of Fund Commissioners, with power to contract and negotiate all loans authorized on the faith and credit of the state for objects of internal improvement.

From the powers of the latter commissioners is carefully exempted the construction of the Illinois and Michigan Canal.

These acts clearly develope (and for this reason they are specially referred to) the policy of the state; and in conformity thereto, as the fund -raised by the state for these different purposes came from different sources and are to be applied to different objects of internal improvement, they are kept separate, and are so deposited in the bank selected as the depository, in the city of Philadelphia. The state of Illinois opened two accounts with the Bank of the United States, one in the name of the Illinois canal commissioner, the other in the name of R. F. Barrett, fund commissioner of Illinois. The first, as is admitted by the cashier, intended for the Illinois and Michigan Canal, the other intended for the general improvement of the state. That the legislature had the right, and indeed that it was the duty of the officers appointed to superintend the two funds, to keep them separate and distinct, will not admit of doubt; and that the bank, who, the jury have found, knew of this policy, had the right and did accept the deposits on these terms, cannot well be denied. For when the coupons which form the subject of set-off were presented for payment, it was admitted by the cashier, and afterwards substantially by the directors of the bank, they were properly payable out of the money standing to the credit of the canal fund commissioners; and that there was money in their hands of that fund to an amount more than sufficient for their discharge. The only objection to the payment was, that the late fund commissioners’ account was overdrawn to an amount more than enough to absorb the balance due on the fund deposited to the credit of the Illinois and Michigan Canal. After stating that the late fund commissioners’ account was overdrawn $29,803.35, the securities held for which would not .produce over $16,000, while the credit to the canal commissioner was only $10,149.23, the cashier says: “If the whole of the indebtedness of the fund commissioners was paid to the bank, the credit to the canal fund commissioners would of course be subject to pay the coupons in question, but not otherwise.” The bank claims the right, through their accredited organ of communication, the cashier, after accepting the deposit for a particular and special purpose, to divert the fund from that purpose without the assent of the state, on the pretext that they had suffered the state to overdraw the account opened for the general purposes and use of the state, and that as against a creditor to whom the fund was pledged. It is not necessary to deny the power of the state, at their will and pleasure, to control both funds, although it cannot be doubted that said action would be a breach of the plighted faith of the state. But that an agent, similarly situated as the bank, can do so without special authority, is a proposition difficult to maintain. The overdraft by the state was on another fund. The fund was left secure and untouched, and it was the folly of the bank to pay the drafts when they knew the state had no money deposited on that account to meet them. The subsequent appropriation was an after-thought or means taken by them to make a set-off in part against the state. It seems that neither Macalester nor the bank are very desirous of being the creditor of the state of Illinois; and hence the management of both parties to avoid, if possible, this position. Whether the set-off would avail against the state, we give no opinion; but as against the defendant, who was the holder of the coupons, it is entirely inadmissible. As long as the deposit is permitted to remain in their hands, they are the agents of the holders of the coupons to the amount of the fund set apart for their payment. It would be a culpable breach of trust to appropriate the fund to any other purpose, and especially to apply it to their own use. The point is clear, on principle and authority. Thus, in Taylor v. Plumer, 3 M. & S. 570, Lord Ellenborough held that the interests of the cestui que trust (and in this light we must view the holders of the coupons) shall not suffer by a change in the form of the fund, whether it was made in the performance of the trustee’s duty, or in violation of it; because an abuse of the trust can neither give nor take away a right. In Davis v. Bowsher, 5 T. R. 492, it is ruled, that bankers have a lien on securities in their hands, for a general balance of account; but Lord Kenyon takes care to except such securities as were delivered to him under a particular agreement. In Cox v. Prentice, 3 M. & S. 344, the principle is asserted by Lord Ellenborough as clear and unquestionable, that an agent, who received money from his principal, is liable, as long as he stands in his original situation, and until there has been a change of circumstances by his having paid the money to his principal, or done something equivalent to it. Although the principles contained in the cases have a strong bearing on the question, yet I agree they are not so directly in point as Jarvis v. Rogers, 15 Mass. 397; in which the doctrine is asserted that an agreement to hold a security for a specific purpose, deprives the holder of the right to apply it to a different one. Mr. Justice Wilde says: — If a debtor obtains of his creditors a loan of money on pledge, on the express agreement that the pledge shall be returned on repayment of the loan, the creditor cannot retain the pledge as a security for a prior debt, without violating the principle of good faith. Parties having a legal capacity to contract, have a right to make such stipulations as they see fit, provided they do not contravene the law; and such stipulations are to be faithfully observed by the contracting parties. So in Parkist v. Alexander, 1 J. C. R. 897, it is ruled, that an agent cannot avail himself of the advantage given by his agency, to apply it to his own benefit, to the injury of others. So in the Turnpike v. Watson, 1 R. 330, it is held, that the agent of a corporation who has received money for its use, cannot, in an action for money had and received, brought against him by the corporation, prove, by way of set-off, that he has paid the debts of the corporation, without showing a special authority. The principle clearly asserted is, that an agent cannot pay off any debt with a fund intrusted to him for another purpose. The legitimate inference to be drawn from the cases cited is, that the-bank having received the money from the state for the special purpose of paying the principal and interest of the debt contracted or money loaned for constructing the Illinois and Michigan Canal, cannot divert it from its legitimate object, to the prejudice of the holders of coupons issued on the credit of the fund, by applying it to a general balance against the state. From this it follows, that by a refusal to pay, on the pretext of a set-off, a wrong was done to the defendant, for which an action lies to recover the value of the coupons.

Was there any error committed in the course of the trial? is the next question. The plaintiffs contend there was error in admitting the deposition of Henry C. Stebbins; in admitting in evidence the sixty-nine coupons; in permitting the defendant’s counsel to propound a certain question to William Pleasants, a witness produced by the defendant; and in the charge.

As to the competency of the witness: As a set-off is in the nature of a cross action, it may be questionable whether Stebbins, who was a partner of Macalester, would be a competent witness on general principles, except for the purpose of showing that he assented to the set-off, as in Wrenshall v. Cook, 7 W. 464. But be this as it may, the witness was introduced to prove and did prove that he, as one of the firm of Macalester & Stebbins, received the coupons as a security for a loan of fifteen hundred dollars, from a Mr. Tilson, who had been, but was not then the fund commissioner for the state of Illinois. The testimony was introduced to show the title of the coupons to be in Macalester, who presented them for payment. But this testimony was unnecessary, because, the coupons being made payable to bearer, the possession was a sufficient title to demand and enforce payment. The bank having refused to pay, the holder had a right of action by virtue of his legal title. If the coupons had been surreptitiously acquired, this defence was open to the plaintiff; but until then he had, by virtue of being the holder, a frimáfaoie title to the property. It cannot be pretended the agent stands in this respect in a better situation than the principal, and it would be a singular position for the state to take, in the face of their own issues agreeing to pay the amount to the bearer, that they could withhold payment until the holder traced his title from the original owner by proof which it would be in many cases impossible to obtain.' If a proposition so plain needed the aid of authority, it is to be found in the cases of Weston v. Baker, 12 John. 276; Crocker v. Whitney, 10 Mass. 319. It was one, if not the principal object in issuing certificates of loan in this form, that they might pass from hand to hand by delivery without requiring a formal assignment. Such has been the practice, and such was the understanding of the bank when they were presented for payment. They made no objection that ho was not the lawful owner or holder of the coupons, but they claimed the right of set-off as against the fund specially appropriated by the state. It is true they may have been surreptitiously obtained, and if so, by proving that fact, it may be a good defence. There are cases, as in Lang v. Smyth, 7 Bing. 284, where coupons are not regarded as money or negotiable instruments. In that case the coupons referred to a certificate which gave the holder the option of converting his bonds into funded debt; the interest was paid to the holder of the coupons without production of the certificates, but the bonds were never sold in the market without the certificate. Plaintiff kept the certificate in his own hands; but his agent, without authority, aud fraudulently, pledged the bond to defendant, as a security for the debt. The court left it to the jury to determine whether the instruments passed by delivery, or, in other words, were negotiable, and whether the defendants acted with due caution in receiving the coupons without requiring the certificate; the jury having] found both questions in the negative, the court refused to set aside the verdict. In Grorgier v. Mieville and another, 3 B. & Or. 45, however, a bond payable to bearer was held to be negotiable as exchequer-bills. That was the case of the King of Prussia, who gave bonds whereby he declared himself and his successors bound to every person who should, for the time being, be the holders of the bonds, for the payment of the prescribed interest in a certain manner: held, that the property in these instruments passed by delivery, as the property in banknotes, exchequer-bills, or bills of exchange payable to bearer; and that, consequently, an agent in whose hands such a bond was placed for a special purpose, might confer a good title by pledging it to a person who did not know that the party pledging it was not the owner. Here, the coupons contained an order to the cashier of the Bank of the United States, to pay to the bearer, in Philadelphia, or at their agency in New York, certain sums therein mentioned, being six months’ interest on certain bonds specified. It would seem, therefore, from the case last cited, that they were negotiable, passing from hand to hand, as a note payable to bearer or a bill of exchange endorsed in blank. But whether negotiable or not, a point which we do not decide, yet it is very clear they pass the legal title to the instrument to whoever may be the holder, entitling him to demand and enforce payment by proof merely that he is the holder of the instrument. A promissory note or bill of exchange, after maturity, is not negotiable in its strict sense, yet a subsequent holder can bring suit in his own name as the holder alone. If this principle be sound, then the evidence of Stebbins may be stricken out entirely, and enough appears on the record to authorize the recovery. It also shows the propriety of admitting the coupons in evidence, which disposes of the third and fourth errors.

But it is urged that the court erred in permitting the defendant’s counsel to propound to William Pleasant, a witness produced on behalf of the defendant, the question, “Was the Bank of the United States in a solvent condition at the date of the transaction in question, in the year 1842 ?” and permitting the witness to answer said question.

To this testimony the special objection was taken, that a witness was not capable of proving such a fact, as nobody could prove whether or not a bank was solvent. In some cases, perhaps, this may be true, but as a general proposition it cannot be maintained; as there are some cases so glaring, that any person may prove it. When the fact of insolvency becomes material, it is surely not required that an account be taken of its credits and debits, before proof can be made of the insolvency of the institution. The ex-ceptio’n, therefore, was not well taken. Whether he did prove it,, was another and distinct question. Indeed, his testimony falls-short of proving the absolute insolvency of the bank. “ I have no' knowledge,” says the witness, “ of the Bank of the United States redeeming their obligations in the summer or fall of 1841; their paper was at a discount; their notes were not redeemed as presented. I knew of their incapability to pay their engagements; I cannot say I knew them to be insolvent.” The facts stated are such as any person was competent to prove. What may have been their effect was for the jury to decide.

From the remarks already made, it will be perceived that we see no error in the charge. For if the Bank of the United States (and the jury have so found), knowing that the state of Illinois had created a stock called the Illinois and Michigan Canal Stock, and had issued coupons authorizing payment to the bearer of the same of a sum of money therein specified, received funds from the state of Illinois sufficient to pay all such coupons, under the agreement to pay the bearer of the same; and if the defendant, being the bearer of the coupons in evidence, presented them to the bank on the 9th of July, 1841, and demanded payment thereof, and such payment was refused on the ground that the state of Illinois had become indebted to the bank by overdrawing on the credit of another fund derived from the same state, under an agreement to apply it to the payment of a different species of state securities; the defendant is entitled to an allowance for the amount of the coupons in evidence so held and presented for payment. If the jury should believe that the coupons were held by the defendant as collateral security for an advance made upon them to a third person, who was the owner of them when the advance was made, this would not deprive the defendant of the legal right to use them as a set-off. We see no reason for the objection of the plaintiff, that there was no evidence of the facts on which the charge is predicated; for there is proof which leaves not a doubt that the bank knew of the creation of the Illinois and Michigan Canal Stock, and that the fund was appropriated in fact for the coupon presented for payment, and that there was an engagement existing between them and the state to apply them to that purpose. Nor is there anything in the objection that they were held as collateral security. With the rights existing between the pledgor and the pledgee, they have nothing to do, nor is it of any consequence whether Macalester’s right was as legal or equitable owner of the subject-matter of the set-off.

Judgment affirmed.