text:
    Lea v. Hopkins.
    Where the administratrix of A. recovered a judgment for a debt due by reason of a loss of money of the estate of A., by die negligence of the agent of the administratrix, and dies, the administrator de bonis non of A. is properly substituted as plaintiff.

      March 1. Motion to set aside an execution issued by the administrator de bonis non of A. Barker. The record .showed that an action was instituted by P. Barker, administratrix of A. Barker, in 1834. The declaration then filed was upon a bond, in which the defendant acknowledged himself indebted “ to the persons legally entitled to the division of the estate of A. Barker, deceased but the names of the obligees were not averred.
    It further appeared by the record, that on the trial, in 1842, the plaintiff added two new counts. The first upon a debt admitted to be due P. Barker as administratrix, for so much money of the estate of A. Barker lost by the defendant, then being the agent of P. Barker, administratrix, whereby a cause of action accrued to her as administratrix of A. Barker. The second was a general count for a debt incurred by negligence, as in the first count.
    The verdict was for the plaintiff on the additional counts, and for the defendant on the first count.
    P. Barker dying, Lea was substituted as administrator de bonis non of A. Barker, and the motion was to set aside an execution issued by him.
    It appeared from the notes of the judge, that the bond was given to the plaintiff and two others, representatives of A. Barker, on account of a loss to that estate incurred by the negligence of the defendant as agent of the administratrix. The defence was, that it was executed on Sunday. His honour directed a verdict for the defendant if the bond was valid, because the cause of action had merged therein, and the proper parties were not joined as plaintiffs. He further directed a verdict for plaintiff on the additional counts
      if the bond was void, saying that in such case the parties were left to their original remedies,

      Scott and Tilghnan, for the motion.
    The action was founded on no contract, express or implied, with the testator. It was either with the administratrix or with the distributees. The record shows an action recovered by the “ administratrix” for the negligence of her agent, and that is her own action which does not pass to the administrators de bonis non; Grier v. Huston, 8 Serg. & Rawle, 402. So much so, that the addition of “administratrix” had to be rejected to maintain the action; Grier v. Huston, and Kline v. Guthart, 2 Penna. Rep. 490. It follows that no one but a privy to her can sue out execution; Roll. Abr. 889; Bac. Abr. Ex. F.; Cowell v. Watts, 6 East, 405; Hemill v. Roberts, Ib. 150.
    The act of 1834 only extends the right where the recovery was in the representative capacity. It is taken from 17 Chas. 2, c. 8; and the leading case, Clerk v. Withers, 6 Mod. 290, 1 Salk. 322, requires the recovery to have been for a debt due to the testator or intestate.

      C. Ingersoll, contra.
    The record shows the recovery to have been by her as administratrix. It moreover clearly shows that the proceeds of the execution will be assets of A. Barker. In that case the act of 1834 has transferred all the right of the original plaintiff by her successor in office, the administrator de bonis non.

       Query, whether any evidence hut the record could he considered in this case.

   Per Curiam.

The act of 1834 gives administrators de bonis nona, right to recover from their predecessors all the assets remaining in their hands; to commence and prosecute actions on promises to them; “to sue forth and defend writs of error, writs of scire facias, and writs of execution, on judgments obtained by, or in the name of, the executors or administrators into whose place they may have come; and to proceed with and perfect all unexecuted executions which may have been issued thereon at the instance of such predecessors.” The objection to this execution is, that it is not founded on a judgment for a debt or duty to the testator; but is it not founded on an implied promise to the executrix ? It is founded on a judgment against the defendant as the agent of the executrix, for a loss suffered by his negligence in collecting, or disposing of the assets; and if it were her loss, instead of being that of the estate, there would be great force in the argument. But she would be liable to the estate only, for having employed an unfit agent, and the defendant will not pretend that he was such. The object of the statute was to bring into the hands of the administrator de bonis non every thing that, when recovered, would go in a course of-administration; and if no person but the personal representative of the executrix could have execution of this judgment, he would be liable to pay it over to the administrator; and this, which shows that it is part of the assets, would be attended with risk, delay, expense, and unnecessary circuity. The substitution, therefore, was proper.

Rule discharged.


source: Caselaw Access Project

author: Coulter, J.

license: Public Domain

text:
    Levering v. Phillips.
    Where the plaintiff proved by parol a purchase from him of a judgment on Q., of M., for $1000, the price of which was payable by instalments, but neither the court nor the term was mentioned, and the plaintiff subsequently demanded payment of the first instalment, offering to transfer so much of the judgment to the purchaser, and to transfer the whole on receiving his obligation for the whole purchase-money —the legal inference is, that there was a stipulation, express or implied, in the original contract, that on payment of the purchase-money, there should be a written transfer of the judgment: and the obligation of the seller to transfer, and of the purchaser to pay the price, are dependent agreements.
    Certificate from tbe Nisi Prius.

      March 6. Assumpsit. The declaration averred in the first count a purchase, by Phillips, on the 1st July, 1840, from Levering, of a judgment, which he held against one Quinton, which was entered in the D. C. C. C. P., S. T., 1839, No. 23, on bond and warrant of attorney, for $2000, the real debt being $1000, in consideration of $1000 to be paid by Phillips, in two instalments of $500: one on the 1st August, 1840, and one on the 1st October following; the said judgment to be assigned and transferred on payment of the instalments, — with an averment of readiness on the part of the plaintiff to perform his contract, and assign and transfer the judgment on receiving the $1000. The second count was an indebitatus assumpsit for goods sold.
    An additional count ivas filed, laying the agreement for payment to have been by one instalment of $500, with $28 80 interest due, and by another instalment of $500, with $5 interest due; and in other respects following the first count.
    On the trial, before Burnside, J., a witness stated that he was in the plaintiff’s counting-house when Levering and Phillips were speaking about a judgment Levering had against Quinton, of Manayunk, which Phillips wished to buy. He was to pay $500 at one time, and $500 in two or three months, or probably more. The witness could not state the time at which this took place, the court in which the judgment was, nor any further, particulars of the contract.
    The plaintiff further proved that he had sent Phillips a paper on the 1st July, 1840, requesting him “ to pay the bearer $537 50, being half the amount of judgment, principal and interest, against Alexander Quinton, up to July 8, 1840, sold you this day by agreement. I will transfer the amount to your use on the docket; or if you will give me your obligation for the balance, I will transfer the whole.” When this paper was presented, Phillips said he could not receive such a paper as that. He then proved the existence of the judgment against Quinton.
    The plaintiff asked instructions: 1. That a judgment could be sold without writing. This his honour affirmed with an expression of regret that it was so. 2. That it is not necessary to a recovery, where a judgment is sold on credit, for the plaintiff to plead or show a previous assignment in writing, or a tender of one. His honour said that would depend on the contract, and that the plaintiff was bound to prove his contract distinctly, and show performance, or an offer to perform, on his part. He further said that all the evidence showed a special contract, and that plaintiff must prove that as laid.
    The errors assigned, which were argued, are stated in the arguments of counsel.

      V. L. Bradford, for plaintiff.
    The court erred in saying there could be no recovery but on the special counts, for the contract was not executory, but executed so far as the plaintiff had any thing to do. By the agreement, the title had passed; certainly as soon as the plaintiff elected to proceed for the price. This is the settled distinction as to the right of recovery on special contracts, and the common count for goods sold was perfectly proper; Chit, jun., on Cont., 63, 374, 375, 440 — 442; 1 Chit. Plead. 297, (Cause of Action,) 333, 334, (Com. Counts.) There is no doubt that the price of a judgment may be recovered as for goods sold; Jac. L. Dic. verb. Chattels; F. N. B. 120; Touch. 97*; Ford & Sheldon’s case, 12 Rep. 1 b; Yohe v. Robertson, 2 Whart. 162; Ryall v. Rolle, 1 Atk. 177, 181-183. Nor is a delivery essential, but the title passes by the bargain and sale.-; Domat, book 1, tit. 2, s. 2, art. 9; Jewett v. Warren, 12 Mass. 300; Rice v. Austin, 17 Mass. 197; Badlam v. Tucker, 1 Pick. 389. The second prayer for instructions was not distinctly answered, but left vaguely to the jury, which is error; Noble v. McClintock, 6 Watts & Serg. 58; Smith v. Thompson, 2 Serg. & Rawle, 49. The direction that the special contract, as laid, must be proved, coupled with the charge on the second prayer, also involves the mistake, that the contract being executory, a previous tender of an assignment must be shown, but this was not executory; and if it was, the plaintiff had executed his part, for the title had passed; Work et al. v. Maclay, 2 Serg. & Rawle, 415; Hershey v. Hershey, 8 Serg. & Rawle, 333; Sampson v. Sampson, 4 Serg. & Rawle, 329; Newbold v. Wright, 4 Rawle, 195; Dubois v. Lord, 5 Watts, 49; Switland v. Holgate, 8 Watts, 385; Hannay v. Stewart, 6 Watts, 487; Evans v. Mengel, 1 Barr, 68.
    The buyer of a judgment is entitled to control it and issue execution upon it, without any actual assignment of it; Gratz v. Farmers’ Bank, 5 Watts, 99; Fleming v. Beaver, 2 Rawle, 132; Erb’s Appeal, 2 Penna. Rep. 298; Canby. v. Ridgway, 1 Binn. 496; Montgomery v. Cook, 6 Watts, 238; Reigart v. Ellmaker, 6 Serg. & Rawle, 44.
    The expression of regret as to the rule of law was erroneous, by misleading the jury; Deal v. McCormick, 3 Serg. & Rawle, 343; Hocker v. Jamison, 2 Watts & Serg. 438; and by the common law no writing was required; Chit, jun., on Cont. 386.

      D. P. Brown, contra.
    The great question is, what was the contract ? It was proved by parol merely, and that very uncertainly. Besides the common presumption, that the purchaser of a chose in action is to have some evidence of his title, what more clearly proves it than the paper sent by the plaintiff himself, in which he recognises his duty to transfer on payment ? That being so, the covenants were dependent.
    That written paper also showed that the title had not then passed; if so, it was then executory, and the ruling was correct as to necessity of relying on the special contract only.

      March 20.
   Coulter, J.

The learned judge who tried the cause, adopting the very words of the counsel for the plaintiff below, answered to his first point — « That, in Pennsylvania, a judgment can be sold, and is the subject of the contract of sale; that it can be bargained and sold without writing and by word of mouth.” So far all is well, and the instruction being precisely such as was requested, the plaintiff in error can make no objection to it. But the judge added, that he regretted the sale could be so made ; and that, in England and many states in this Union, such contracts must be in writing. This last paragraph is made the subject of the seventh error assigned. It is of little consequence, however, whether the judge was precisely correct or not, because it - is only when the court errs in stating the law of the state, which governs the contract, that this court can administer correction and reform the interpretation. To the second and only other point submitted to the court, to wit — “ That it is not necessary to a recovery, where a judgment is sold on a credit, for the plaintiff to either plead or show a previous assignment in writing, or tender of an assignment in writing to the defendant.” To this the learned judge ' answered, that it would depend on the contract; that the plaintiff must show a performance of his part of the con-' tract, or an offer to perform, before he could recover. The judge then submits it to the jury to find whether a contract had been proved, what it was, and what each party was to do. In all this we perceive no substantial error. The' instruction may be somewhat vague. But, as the contract was by parol, it was the province of the jury to find from the evidence what it was; and although the judge had, in answer to the first point, instructed the jury that the sale of the judgment might be by parol, yet it was perfectly competent for the parties to stipulate in that contract that the judgment should be assigned in writing, or have that fact fairly and necessarily to flow from the terms and nature of the contract. The vagueness to which I have alluded consists in stating that the plaintiff, before he could recover, must show that he had performed, or offered to perform, all his part of the contract, when it might have been that the covenants were entirely independent, and the stipulation, on the part of the plaintiff, to assign or transfer the judgment, might be consequent upon and after the payment of the price agreed upon. But, upon a careful examination of the evidence, I am fully satisfied that the covenants or agreements of the parties to the contract were dependent, and that, consequently, the plaintiff could not recover without showing performance, or a readiness and willingness to perform his part. Covenants are to be construed, dependent or independent, according to the intention of the parties and good sense of the case: 9 Mass. 78; 11 Pick. 154. Here the parol contract was proved to be, for the sale of a judgment on one Quinton, without even specifying his Christian name, or in what county or what court it existed — nothing more than that it was on Quinton of Manyunk for $1000. The contract was proved to have taken place at the counting-room of the plaintiff. Now, no one can suppose or believe that this was intended to be, or was an executed contract, especially as it was to be paid for in two instalments of $5000 at a future period. It was nothing more than an executory agreement to sell and transfer the judgment, when the money for which it was sold was paid. The plaintiff himself put this construction upon it by the order which he sent by his son for the first instalment, in which he said that he would transfer one-half of the judgment upon the payment of $500, with interest, and he alleges, in his narr., that, upon the payment of the last instalment, he was, by the terms of the eon-' tract, to transfer the judgment. But nothing whatever was proved as to the time of transferring the judgment, or about its transfer. No man, however, can suppose that an individual bound himself finally to pay $1000 for a judgment not identified by name, court, or county, and before he received evidence of ownership. It follows, as an irresistible inference, that the judgment was to be transferred at the time the money was paid, if not before, according to the intent of the parties. In the absence of proof on the subject, we are bound to infer that those things which usually and generally attend the transaction, and which are necessary to its consummation, were within the intent of the parties, especially when there was no consideration for the contract moving from the one to the other, and when one promise was made in consideration of the other: 6 Cow. 254; 15 Mass. 1. The assignment or transfer of a judgment always accompanies its purchase and sale, especially when, as in this case, the locality of the judgment, or its individuality, was not identified at the time of the preliminary agreement to sell. These agreements, then, according to the most favorable construction for the plaintiff, were dependent one upon the other, and to be consummated at the same time. The plaintiff was, therefore, bound to show that he offered to transfer the judgment before he could recover the $1000, which he did not do. But the contract was, by every fair rule of interpretation, executory. The judgment was to be transferred, even according to the plaintiff’s allegation in his narr., at a future time, upon the payment of the $1000; and it, therefore, was a condition precedent, and he was bound to show either performance or readiness to perform before he could sustain his suit: 4 Pick. 101. Where two parties each agree to do a certain thing for the other at the same time, and the thing to be done by the one is the consideration for that which is to be done by the other, the one who would compel a performance must show a readiness to do what was to be done on his part: 2 Pick. 155.

Here, by the plaintiff’s declaration, he was bound by the contract to transfer the judgment when the defendant paid the last $500, and such was the fair intendment of the parties according to the evidence in the cause. The plaintiff was, therefore, bound to show an offer to transfer the judgment at the time the money was to be paid. This view of the case answers the errors assigned.

Judgment affirmed.


author: Bell, J.

text:
    Catherwood v. Kohn.
    ■Where the original narr. was mislaid and another filed, on which the cause was tried on its merits, but judgment was arrested because no title to sue was set out; and the original narr. was subsequently found, which contained proper averments, this court, on writ of error, entered judgment on the original narr., treating it as one count in tire declaration.
    Certificate from the Nisi Prius.

      March 7, 8. The original narr. set out a contract by Kohn and Catherine, wife of John Wright, whilst sole. Seven years after it was filed, and after a jury had been sworn, a new narr. was filed, which laid a contract by Kohn, John and Catherine Wright, his wife, and on this a plea was endorsed. It was stated that the original had been mislaid. On the trial, his honour, Kennedy, J., instructed the jury that they must find a contract made or ratified by Kohn and Catherine, and the cause appeared to have been tried on its merits. After verdict for the plaintiff, the defendant moved in arrest of judgment, because the contract was laid to have been made by a feme covert, and there was no allegation it was made by her whilst sole. For these reasons judgment was arrested. At a subsequent time the original narr. was found, and was upon the record at the argument of this cause.

      Randall, for plaintiff'in error.
    The original having been found, the last narr. is to be treated as a nullity, especially as there is no order authorizing it to be filed: Kay v. Fredrigal, 3 Barr, 221. But, conceding it regularly there, the first narr. is also there, and is part of the record. It can only be treated as one, count, since properly there cannot be two narrs. The second being clearly defective, the proper course is to enter judgment on the good count, which can be done after writ of error brought: 7 Cow. 524; 2 Cow. 516; Wampler v. Shissler, 1 Watts & Serg. 368; Fursht v. Overdeer, 3 Watts & Serg. 470 ; Long v. Long, 4 Barr, 29; Richardson v. Mellish, 3 Bing. 334. This court has been foremost in preventing an advantage being taken of' these inadvertencies. In Downing v. Lindsay, 2 Barr, 382, it treated the narr. as amended. He also cited 8 Pick, 415; 4 Yeates, 479; 5 Bin. 60; 2 Serg. & Rawle, 219; Peters’s C. C. 489; 1 Paine, 486; 2 Watts & Serg. 261; 3 Barr, 501; 4 Barr, 138, 317.

      J. A. Phillips and D. P. Brown, contra.
    There was but one narr. on which the cause was tried, and that it was filed by consent is shown from the plea endorsed upon it. To allow amendments after error brought, is contrary to all rule, and goes to the root of the power to arrest the judgment. It is unfair to the other side, for the defect in the narr. will authorize very different conduct in a trial from what would be deemed necessary had none existed.

      March 18.
   Bell, J.

Regarding the declaration filed during the trial as an exact transcript of the original narr., (as it was supposed to be,) the learned judge, who sat at Nisi Prius, could not refuse to arrest the judgment, inasmuch as a defective title to sue was alone set out; though we can readily believe he acceded to the motion with great reluctance, since the cause had been tried under the facts as they actually existed, and was determined upon its merits. But the original declaration, temporarily mislaid, at the period of the trial, has since been discovered, and it is found to aver a good cause of action. Conceding the count last filed to be properly of record, it is not to be denied that the first narr. is to be taken as part of the pleadings; and thus is presented the ordinary case of several counts, some good and some bad, and a general verdict. Now, it is perfectly well settled that, in such cases, where all the evidence received was admissible under the good counts, though it may also have tended to support the bad, the court, after verdict, may order judgment to be entered upon the former : Williams v. Breedon, 1 Bos. & Pull. 329; Eddowes v. Hopkins, Doug. 376; as explained by Richardson v. Mellish, 3 Bing. 334. In the last case, it is justly said it is never too late to do what is necessary, by way of amendment, to prevent injustice ; and where this is the object, courts will be extremely liberal. Acting upon the rule suggested by pure morality, the Court of Common Pleas' amended the postea, after a general verdict, by directing the judgment to be entered upon the sound counts, though the cause had been removed by writ of error into the King’s Bench, and argued there. The- same practice was pursued as to amendment in Blakey v. Birmingham, 2 Strange, 1132, and this practice was approved by this court in Bailey v. Musgrave, 2 Serg. & Rawle, 221. Another instance is presented by Clark v. Lamb, 8 Pick. 415. In the case at bar, no judgment has been entered. We might, perhaps, remit the record to our statutory Court of Nisi JPrius, with directions to enter the judgment on the first count, as it is not denied all the evidence heard was admissible under it. But, being in full possession of the cause for the purpose of judgment, we may ourselves do this. In taking this course, we feel certain no injustice will be done to the defendants, as the points submitted by them to the judge who tried the case, sufficiently show it proceeded upon proof that Catherine Wright was a feme sole at the time the contract sued on was entered into.

It is accordingly directed that judgment be entered for the plaintiff on the declaration first filed.


author: Coulter, J.,

text:
    Richabaugh v. Dugan.
    Under a plea of payment, evidence of payment in goods is admissible, and the rules of the Common Pleas do not alter this rule.
    A contractor is a competent witness for the mechanic on the trial of a sd.fa. on his claim. Semble, evidence that there were two contractors when the claim only names one, is immaterial where the plea was not in abatement.
    A claim “ for painting done in and about the erection of a house, and the necessary materials provided therefor, from the 1st April, 1842, to 1st October, 1842, and within six months last past,” is sufficient.
    In error from the Common Pleas of Philadelphia.

      March 8. Scire facias on a mechanic’s claim against Richabaugh, owner, and Hoopes, contractor. The defendant pleaded Payment: 2. That Hoopes was not contractor as stated in the sci. fa. 3. That the claim does not state the kind and amount of work done, and materials furnished, or the time when,, &c. The claim was for $67 82, against, &c., whereof Thomas C. Hoopes is contractor, &c., for “ painting done in and about the erection and construction of the said building, and the necessary materials provided therefor, from the 1st of April, 1842, to the 1st October, 1842, and within six months last past.”

      • The plaintiff, under exception, examined Hoopes, the contractor. The defendant offered to show a delivery to the plaintiff of flour in payment of his claim, which was rejected by the court as being matter of set-off. He also offered to show that there were two contractors, but the court decided it was matter of abatement. He also asked instructions that the claim was not well filed, which were refused.

      G. L. Ashmead, for plaintiff in error,
    on the inadmissibility of Hoopes’s testimony, cited Dickinson v. Church, 1 Watts & Serg. 462; 3 Watts & Serg. 221. The evidence offered was not of set-off, but of payment of the claim; it matters not in what it was made. All the contractors must be joined, and the time of the work and qualities of the materials must be stated: 4 Watts & Serg. 258.

      Zex, contra.
    The cases cited dispose of the first point. To admit the evidence under the plea of payment, notice of the particulars must be given under the rules of court: Erwin v. Leibert, 5 Watts & Serg. 103. [Gibson, C. J. — This is rather a matter of accord and satisfaction.] The plea was not that there were two contractors, but that Hoopes was not one. The correctness of the claim is settled by Shaw v. Barnes, 5 Barr, 18; Driesbach v. Keller, 2 Id. 77.

      March 20.
   Coulter, J.,

(after stating the evidence rejected under the plea of payment.) — An opinion, it would seem, has prevailed, and with the sanction of high names, that under the plea of payment alone nothing but direct payment in money can be given in evidence. But the law was never so established, even in England. Their books contain many cases where it was held that under the plea of payment the defendant might give in evidence the delivery of the notes of a private banker, or notes' of individuals which had been accepted by the creditor ^n satisfaction of his debt: Williams v. Smith, 2 Barn. & Ald. 496; 2 Bos. & Pull. 518, It is the ' distinct agreement of the creditor to accept the thing in satisfaction and payment of the debt, which makes it good evidence under the plea of payment. In Pennsylvania, no 'judicial decision, made at any time, gives countenance or precedent to the judgment of the court below. But on the contrary, in the case of Musgrove v. Gibbs, 1 Dall. 217, Chief Justice McKean says: “The receipt .of one thing in satisfaction.of another is a good payment, as the acceptance of a horse in lieu of a sum of money, or of a bond by a third person in discharge of a prior obligation. The twenty-fifth rule of the Court of Common Pleas orders, that a defendant under the plea of” payment to an action of debt on a bond or specialty, shall not be permitted to give in evidence that it was obtained by fraud or without sufficient consideration, unless he gives twenty days’ notice before the trial of the matter on which he intends to rely. And the twenty-fourth rule provides, that he must give notice of any matter intended to be set-off against the plaintiff’s claim ten days before the trial. These rules furnished the court below with authority to reject the evidence offered under the plea of payment, and also to refuse permission to add the plea of set-off, because ten days’ notice could not be given. It was, however, nothing like a set-off. The evidence offered, if true, established a direct payment made and accepted, of a commodity moving directly from the defendant to the plaintiff in discharge and extinguishment of the plaintiff’s claim, of which there existed no more reason that he should give notice than if dollars had been counted down to the plaintiff for the same purpose. Nor does the twenty-fifth rule touch the case, because the offer was not to give any evidence of failure of consideration, or fraud in procuring the claim, or filing it; but, on the contrary, a full admission that the claim was just and fair, and had been satisfied and paid. The only real question was, whether a payment in kind was in fact a technical or good and substantial payment or not. In the case of Hamilton v. Moore, 4 Watts & Serg. 570, it was decided that in an action of assumpsit under the plea of payment, evidence of payment in other things than money was good. The case was, as appeal’s by a note of the reporter, mislaid for a long time, which accounts for an opinion of Chief Justice Tilghman being reported in that book. I can perceive no reason why, if the evidence is good under the plea of payment in an action of assumpsit, it should not be good in an action like the one under consideration. In Buddicum v. Kirk, 3 Cranch, 293, it was ruled that upon a plea of payment to debt on a bond, it is competent for the defendant to give in evidence that wheat wqs delivered to the plaintiff on account of the bond at a certain price, and that the defendant assigned sundry debts to the plaintiff, part of which were collected by the plaintiff and part lost by his indulgence or negligence. This case is so directly in point that it is not deemed necessary to cite any other, many of which are at hand. The third error assigned is, refusing the defendant leave to plead a set-off after his evidence was rejected on the plea of payment. No farther notice of this error is required under -the view taken of • the case, than to say that the defendant who had or offered to exhibit a plenary defence to the action, and to establish the extinguishment of the plaintiff’s claim, was refused the opportunity of doing so by the application of erroneous principles to the case, which'had not even the poor merit of being covered by the cobwebs and dust of antiquity to make them venerable. There is nothing in the first error assigned, and the fourth and fifth, if they had any merit in them under a different state of the pleadings, are not entitled to any weight as the issue stands.

Judgment reversed, and a venire de novo awarded..


text:
    McGill et al. v. Ash.
    Trespass quare daiisum fregü lies by one tenant' in eommton against his co-tenant, where an actual ouster is proved.
    And his admissions of the plaintiff’s right, and his offers to account-fol- the profits, are no defence.
    Admissions of one defendant that the trespass was authorized by him, are evidence against him.
    A constable must prove his warrant in order to come within the act of 1772.
    Iir error from the District Court of Philadelphia.

      March 9. — Ash brought trespass quare clausum fregit against' McGill, his co-tenant, Smith, the tenant in possession under McGill, and Albright. In the count on which the verdict was entered, he declared generally for an expulsion from his house.'
    It appeared on the trial before Jones, P. J., that Ash having recovered one-fifth of the house, in ejectment against McGill, had been put into possession by the sheriff. A few days afterwards,- he brought his goods there, when he and his goods were violently turned out by Smith, the tenant, and Albright, who was a constable. The plaintiff proved, under exception, the declarations of McGill, the landlord, that he intended to keep him out, and his' admissions subsequent to the affray, that he had authorized the acts-of his tenant. The admission of this testimony, and the ruling that the action would lie, were the main questions argued.
    The court also rejected the admissions by McGill, of the title of’ the plaintiff, and his offer, anterior to the trespass, to account to him for one-fifth of the rent. It had been proved, by parol, that after the affray began, Albright procured a warrant from an ah derman, on a complaint of a breach of the peace. His honour said, that since that had not been given in evidence, or a justification pleaded, he would not be liable to exemplary damages, if acting fairly in the suppression of a tumult; but if he''acted in concert with Smith, under colour of his office, it was an aggravation.
    The defendant also assigned for error, that the verdict and judgment was for a trespass to the whole property, and not to the plaintiff’s one-fifth.
    These were the only points which were much pressed.

      Kennedy, for plaintiff in error.
    Is a tenant in common compelled to allow a forcible entry by his co-tenant, where he admits the title, and is willing to account for the profits ? But trespass will not lie, since there can be no constructive ouster, each being entitled to possession; 4 Kent, 370; 10 Watts, 190. [Bell, J. — That does not apply; here was an actual turning out.] The declarations of McGill were not admissible against his co-defendants, until they were connected with him. [Gibson, C. J. — They were admitted to connect him with those who had been actually concerned in the trespass.] Albright was constable, and had a warrant; he was therefore not liable under the act of 1772, s. 6.
    C. Ingersoll and Randall, contrá.

      March 15.
   Coulter, J.

This is ah action of trespass quare clausum fregit, instituted by Ash against McGill and nine others, for breaking and entering the dwelling-house of the plaintiff, and expelling him from the possession. The defendants took five bills of exception to evidence offered by the plaintiff, and admitted by the court, which do not require a separate consideration. They relate and embrace the same kind of evidence proposed to be given by different persons, to wit, the admissions of McGill, one of the defendants, who was not present at the time of the alleged trespass, that he had authorized, and directed, and sanctioned it. Some of the offers were of direct unequivocal admissions, and one or two of them were his declarations, which conduced to prove that he had authorized the trespass. No principle in regard to the action of trespass is better established than this, that all persons who order or procure a-trespass to be done, or incite others to 'do it, are guilty of the trespass, and may be made defendants in the action; Britton v. Cole, 1 Salk. 409; Archbold’s Law N. P. 312. And I do not know any higher, or more reliable evidence of a fact, than the admissions or declarations of a party who is to be prejudiced, freely and voluntarily made. It is of no consequence whatever, that these admissions and declarations were made after the fact. That only gives them more point and potency. These bills of exception are therefore dismissed, with this further observation, that McGill had rented the locus in quo to Mrs. Smith for a tavern, one-fifth of which premises had been recovered in ejectment by Ash, who had been put into possession as a tenant in common, by the sheriff, and whose goods and himself were thrown out by a posse, apparently collected for the purpose by his tenant, Mrs. Smith; which, taken in connection with his enjoying the rent, and his other acts, in proof in the cause, give greater colour' and weight to his admissions.

There is no value in the next, being the sixth bill of exceptions, because Mrs. Tucker did not testify that Mrs. Smith had any conversation with Mackey at the time of the expulsion. It was in vain, therefore, to propose asking Mackey what conversation he had with Mrs. Smith, in the presence of Mrs. Tucker, for the purpose of invalidating her testimony. . She testified that there was a fight, much noise and confusion, throwing out furniture, and what some of the witnesses called a row, and that Mrs. Smith was the presiding and controlling spirit, but not a syllable of any conversation between her and Mackey. The next exception covers a proposed question by defendant to Mr. Laws, to wit, what took place in his office at the time of the hearing, on the day of the alleged trespass. This question was too general and vague. Many things might have taken place there on that day, which had. no relation to the issue whatever, and a great deal might have been said and done in the absence of Ash, the plaintiff below. It would seem to have been on this ground alone that the question was overruled by the court, because the alderman did afterwards, without let or hindrance, state all that did take place, and some things which were not evidence, but favourable to the defendants. The next exception is in regard to a question proposed to be asked Cecilia. Smith by the defendant, to wit, what Mrs. Smith said to Ash with respect to the rent of the house. But this was altogether impertinent to the issue, and could not tend to justify or excuse the alleged trespass. Michael McGill, one of the defendants, was then called, to prove that he had not possession of a certain receipt book, called for, I presume, by the plaintiffs. There is nothing in the bill of exceptions from which I can ascertain what this receipt book had to do with the case, or why it should be in the possession of McGill; nor what useful or relevant purpose could be accomplished by McGill’s purging himself of its possession. The exception is too bald to justify the court in disturbing the judgment. The final exception to evidence is the rejection of an offer by defendant to prove, by one Kennedy, that he was present at a conversation between Ash, McGill, and Mrs. Smith, in which Mrs. Smith told Ash, after he was put into possession by the sheriff, that she would acknowledge him as her landlord for one-fifth part, and that McGill offered to account to him for the rents accrued since the decision of the Supreme Court. I am at a loss to perceive why the plaintiffs objected to this evidence, as it was clearly an aggravation of the trespass. But the court rejected it, because it did not appear that it was the same conversation referred to by George Tucker, a witness on the part of the plaintiff, and it could not be given in evidence to contradict him, and was evidence on no other ground. It was clearly not evidence in excuse, mitigation, or justification of the alleged trespass, and was probably offered only with a view of contradicting Tucker, but as it was not the same conversation to which he testified, it could not accomplish that purpose, and was therefore properly overruled. Next come five exceptions, or rather errors assigned, to the charge of the court. But the exception to the charge or direction was general, and in these words, « and then and there the counsel for the defendant did except to the foregoing charge and opinion of the said court.” I shall therefore only consider the first, which assigns for error the answers of the court to the several points submitted to the court, and on which their opinion was requested, on the authority of Stafford v. Walker, 12 Serg. & Rawle, 196; 8 Johns. Rep. 493, and 7 Wheat. 426. The two first points submitted are of the same import. But’ it is well settled, that a tenant in common may maintain trespass for an injury done to his possession, because that possession is not confined to any particular part of the premises, but is commensurate with the whole, in relation to which he has the right to an exclusive possession, except as against his co-tenant, and the measure of damages will be regulated by the extent of his interest. This answers the two first points, and also the fourth, to wit, that a tenant in common cannot maintain trespass against a stranger. The third point is, that one tenant in common cannot maintain trespass against his co-tenant. It is very clear, however, that he can; 1 Salk. 392. The principle results from the reason and nature of the connection between the parties, its ends and purposes, as well as from the positive rule of authority.

The court instruct the jury that the plaintiff could not recover for mesne profits, but for the trespass only, and in doing so admitted the fifth point put by the defendant’s counsel, substantially and as far as the law would allow. The court below did not instruct the jury that Ash was entitled to the exclusive possession of any part of the premises, or that he was at liberty to remove Mrs. Smith, the tenant of McGill, from any part of the premises, but that being put into possession by authority of the law, he was entitled to a common possession, and no more; in short, that he was entitled as a tenant in common, which the highest court had adjudged him to be. This was undoubtedly a correct view of the law of the case, and was a response to the remaining points submitted by the counsel for the defendants. I feel some consolation in overlooking the remaining errors assigned to the charge, because they relate to matters to which the attention of the court was not called, by the vigilance of the defendants, inasmuch as I perceive nothing very grievous in them.

The judgment of the court is aifirmed.


text:
    Cunningham v. Shaw.
    Where a consideration is essential to the cause of action, it must be stated fully and truty, or the variance is fatal.
    Hence, in an action for not honouring and paying bills drawn under letters of credit, where the consideration was averred to be the agreement of B. and H. (third persons) to guaranty and become bound for the repayment of such sums as should be drawn under said letters, and the agreement of the plaintiff to procure such guarantee or security; but the evidence of defendant’s assent to the giving of the lettevs by their agent, showed that B. and H., of the plaintiff, had engaged to make due provision for the drafts; the variance was held to be fatal.
    A plaintiff will be nonsuited if his evidence of tho contract shows that a paper containing stipulations on his part, is not produced if he has the power to do so.
    Hence, where the letter enclosing letters of credit on which the action was brought, also enclosed a paper called a confirmation, to be signed by plaintiff and returned to defendants, and that paper was proved by plaintiff’s witnesses to be in court at tho trial, and to contain an agreement by plaintiff as to covering the bills to be drawn under the letters, and that paper was tendered to plaintiff’s counsel, but not read in evidence by him, the plaintiff was rightly nonsuited.
    In error from the District Court of Philadelphia.

      March 13,14. Assumpsit against Shaw and others, trading as Thomas Wilson & Co. The plaintiff, in his declaration, averred that he had applied to Gossler, who-was the attorney of the defendants, having full power in the premises, for permission to draw bills from Rio de Janeiro, and other ports in South America, on defendants in London, which were to be duly honoured on presentation, and offered and agreed to give said attorney, or the defendants, a guarantee or security that defendants should be reimbursed their advances, costs, &c., at the usual rates. That said offer was accepted, and the attorney, on behalf of defendants, agreed, when such guarantee was given, he would deliver letters of credit, whereby plaintiff should be authorized to pass drafts within six months from 3d December, 1836, not exceeding ¿66000, to be drawn at the usual sight, at Rio, &c., and undertook, as attorney of defendants, that such drafts should be duly honoured on presentation ; that plaintiff subsequently procured Revan and Humphreys ' to guaranty and become bound for the re-payment of such sums, to be drawn by him, with the usual commission, &e. That Glossier, as attorney, &c., accepted the guarantee, and, in consideration ■thereof, and of the said promises and agreement of defendants, delivered plaintiff two letters of credit, signed by him as attorney for defendants, under the style of Thomas Wilson & Co., in both of which he authorized him to pass drafts, &c., not exceeding ¿63000, and engaged, on behalf of defendants, under the powers vested in him, that such drafts should be duly honoured on presentation. That plaintiff showed the first of these letters to Maxwell, Wright & Co., of Rio; and, by virtue, thereof, drew certain bills payable sixty days after sight, to order of Maxwell, Wright & Co., who received and took the same on the faith of the said letter of credit. That the same was done under the second letter. That plaintiff having negotiated these bills, defendants became bound to accept and pay the bills when presented for payment and acceptance. That when the bills were presented, the defendants refused to accept the same. That when they became due, they were presented for payment, refused, protested, and returned, with proper notification, to Maxwell, Wright & Co., who took them up. That plaintiff was obliged to pay, and did pay, to M.,.- W. & Co., for expenses, re-exchange, costs, &c., a large sum of money, &c., in consequence of the omission and neglect of defendants to accept and pay the said bills according to their tenor and the terms of the letters of credit; and that, from the making of the bills until the presentment for acceptance and the time of payment, defendants had not in their hands any of the effects of the plaintiff. By means whereof .the defendants became liable to pay the plaintiff the sum, &c., ■being the amount of the exchanges, re-exchanges, interest and costs, so incurred and paid by him.
    The second and third counts were founded upon the bills drawn under the first and second letters respectively, being in other respects identical with the first count. The fourth to the twelfth-counts, inclusive, were upon bills drawn by plaintiff to order of M., W. & Co., and averred to have been accepted by defendants, each bill being separately declared on. The thirteenth count was exactly like the first, with an additional averment of a protest for non-acceptance and notification thereof to plaintiff. The fourteenth count was like the second, and the fifteenth like the third, with the addition of the averment of the protest for non-acceptance and notification : the common counts were also added. The general conclusion averred non-payment of the said several sums of money. Plea, the general issue. In the bill of particulars, the plaintiff stated the various items making up his claim, which consisted of protests, postages, commissions — commissions on settling —and damages, being the difference between the sum at which the bills were negotiated, and the amount re-drawn on M., W. & Co.
    On the trial, .before Jones, P. J., the plaintiff read a letter from Bevan and Humphreys to Gossler, of December 2, 1836, stating that the former credit of Cunningham had expired, of which, so much as had been used had been remitted by them, and asking a new credit of ¿£6000; “ this credit to be, as usual, under our guarantee.”'
    Also á letter from Gossler, in reply to Bevan and Humphreys,dated December 3, 1836, enclosing “the credits;” “also the confirmation which you will get signed, and return to me at your convenience. . ... . . Knowing your usual punctuality, I have not looked to the reimbursement of pending engagements with T. Wilson & Co., and which are no doubt provided for.”
    He also read the letters of credit of same date with this, containing a stipulation that the bills should be duly honoured on presentation ; having proved that Bevan and Humphreys were agents for Cunningham in the business. On cross-examination, the witness identified a paper signed by Cunningham as the one enclosed in Gossler’s letter of the 3d December, and referred to by him as the confirmation. - This paper was offered to plaintiff’s counsel, who did not offer to read it in evidence.
    He then proved by one of the firm of Bevan and Humphreys, that they had had numerous transactions of this kind, that the banker’s commission was usually one per cent., and that it was usual to remit in time to meet the payments under these acceptances. If the draft was there the day before the bills were payable, the remittance was prompt; they never made remittance before acceptance, and never were called on to make such. On cross-examination, he-said: “ There was nothing more special in this case than others. There was a written agreement between Cunningham and Wilson Co., as to covering these bills drawn under the credits in question; that agreement is now in the court-room.”

      . The plaintiff gave evidence that the bills had been negotiated to M., W. & Co., to whom the letters of credit were shown; some of them were redrawn for, and others paid by the money of M., W. & Co., in London, who settled with Cunningham on favourable terms; and it also appeared that there was time for remittance to London by Cunningham after notice that the bills were refused acceptance, It was also shown that Wilson & Co. had disavowed the right of Gossler to draw; but the plaintiff read a letter from defendants to Bevan and Humphreys, acknowledging the receipt of a letter in'forming them .of the issue of the letters of credit, and saying, “We have noted these credits, and also your engagement to malee due ¡provision for all drafts drawn on us in virtue of them.” It was also proved that, by the custom of Rio, the payee there was bound to give security to the holder of bills on notification of nonacceptance, which had been done in this case, and that Cunningham had proceeded to Rio with a cargo to protect Maxwell, Wright & Co., and had paid them the claim for damages, &c., and held the bills and protests at the time of the trial.
    His honour directed a nonsuit. It is believed this is a sufficient statement, of the facts material to the three questions raised on the argument, which were: — The variance between the proof and the narr.; the want of a paper shown to be part of the contract, and which was in -the plaintiff’s power at the trial; whether defendants were liable in consequence of Cunningham not having provided for the bills before maturity.

      Williams, for plaintiff in error.
    The question was, whether, under the circumstances of the case, the plaintiff was entitled to recover for the damages paid by him, being the difference between the proceeds of the bills when negotiated, &c., and the cost of re-exchange, interest, &c. It is conceded the defendants were bound by their letters of credit, and they stipulated that the bills should be honoured, which means accepted; otherwise they become worthless to the holder, between presentation and payment. In the particular case, too, it is shown that security had to be provided by the purchasers on the faith of the letters, and that Cunningham had paid them. Nor was the refusal based on the want of remittances, for they were not usual until maturity, or even a short time after-wards. There has never been a donbt of the right of the drawer of bills, under a letter of credit, to sue thereon; and Maxwell, Wright & Co., having taken the bills on the faith of the letters, might have sued, (Story on Bills, s. 462,) and Cunningham now has their right. Here, however, he counts on the breach of the letters of credit. In Francis v. Bucker, Amb. 672, these damages, under the Pennsylvania statute, were held to be provable against the party bound to accept; and this is corroborated by Riggs v. Lindsay, 7 Cranch, 500. So in De-Tastet v. Baring, 11 East, 265, if the plaintiff be liable for, or has paid them. McCarty v. Barrow, 2 Stra. 949; Chitty on Bills, 308; Curtis v. Barclay, 5 Barn. & Cress. 141; McEvers v. Mason, 10 Johns. 215; Boyce v. Edwards, 4 Peters, 123; Coolidge v. Payson, 2 Wheat. 66; where it was held, one promising to accept might be treated as an acceptor; and that non-acceptance is an injury is shown in 2 Met. 403.
    It is not necessary that plaintiff should give the whole contract iii evidence; a familiar instance of which is a defeasance or condition separate from a bond; but it is settled that he may declare on and prove his part of the contract, leaving the other side to prove his part; Lawes on Pl. 80; Clarke v. Cray, 6 East, 567, 569; Cotterill v. Cuff, 4 Taunt. 285; 1 Stev. N. P. 370, 13 East, 18; Hotham v. East India Co., 1 Term Rep. 645. The question on the pleading becomes immaterial, for a recovery can be had on the common counts; Riggs v. Lindsay ut sup.; Smith v. Brown, 6 Taunt. 340.

      Cadwalader and J. M. Reed, contra.
    These were eases where there had been a provision made. The nonsuit was founded on three sufficient reasons. 1. The papers, in evidence, showed that one was wanting, and that one contained all the agreement which was to be performed by the plaintiff. 2. Because it is a fraud on the accommodation drawee not to provide funds to meet the draft at maturity. 3. Variance.
    The first is important as a rule of practice, especially in commercial transactions in which good faith is particularly necessary. Dealings are carried on by letters, and contracts entered into which cannot be explained with fairness, but by all the correspondence ; and it should be understood that a party will not be permitted to recover unless he shows the whole. The paper in this case was proved by the plaintiff’s evidence to have been sent with the letters of credit to be signed by plaintiff. It was-proved by his witness to have been signed, and to be the agreement made by' plaintiff as to the mode of covering these hills. It was identified in court, and offered for his service. Will it he permitted that there shall be recovery for non-payment of a bill, by the accommodation party who refuses to let the court know what he had agreed to do. Where oyer is excused, no proferí must be made; but the ground of excuse must be shown, to enable the judge, whether there be a proferí or an excuse, to see there is no variance. In this case the maxim, swppressio veri est suggestio falsi, emphatically applies.

      ■2. The plaintiff’s demand is for not paying; but even had it been put upon the breach of the agreement to accept, it would be no stronger'; for it is for liquidated damages, made up of re-exchange, &c., which cannot arise until after maturity. Had it been for unliquidated damages for not accepting, there would have been a different case. But for these liquidated damages there could be no recovery, because the plaintiff had not provided for the bills by remittances. That the non-acceptance was no excuse for this duty, is decided in Stevenson v. Austin, 3 Met. 484. In Ex parte Metcalfe, 11 Ves. 44, Lord Eldon defines the obligation of a party having an accommodation acceptance to provide against liabilities, which means provide beforehand; that is, he must indemnify by preventative measures; 1 Wms. Saund. 116; 8 Wend. 452; Bauer v. Roth, 4 Rawle, 99; Kelly v. Evans, 3 Penna. Rep. 387; and the law implies the contract to indemnify; Jones v. Brooke, 4 Taunt. 464—468, Bald. 538; Young v. Hockley, 3 Wils. 346, 2 Chit. Plead. 124; Van-Sandau v. Corsbie, 3 Barn. & Ald. 17; - v. Adams, Young, 173; Sparrow v. Chisman, 9 Barn. & Cress. 241; Bradford v. Hubbard, 8 Pick. 157; Richmond v. Heapy, 1 Stark. 160; Laing v. Barclay, 1 Barn. & Cress. 398. The rule of equity is well settled, that a surety shall not be led into an increased hazard, and the defendants were but sureties until provided with funds. Re-exchange is the operation of drawing-counter to the expected course of dealing, and is onerous to the last degree. It cannot arise until after maturity; and, as it has been shown, the defendants were not bound to pay for want of' provision, Napier v. Shneider, 12 East, 420; Watt v. Riddle, 8 Watts, 545; 10 Met. 378, they are, therefore, not liable for the re-exchange occasioned by the plaintiff’s default. To avoid this difficulty, he avers the indemnity of Bevan and Humphreys to have been the /consideration, but that they never agreed to.
    3. The narr. avers that the defendants were to pay and look to Bevan and Humphreys; but the evidence shows their agreement was for indemnity, and was collateral merely, and the loan of defendants was of their name merely. Had the paper signed by plaintiff been produced, he would have been entitled to the benefit of the delay afforded by it; but for want of any evidence, particularly when the defendants’ letter assumes the contract to provide to be expressly made, he was bound to prove an immediate preparation to provide according to his implied contract.The bill of particulars limits the claim under the narr.; 5 Car. & Payne, 340; 2 Brod. & Bing. 682; Williams v. Allen, 7 Cow. 316; Webster v. Schuyler, 6 Cow. 595; Goodrich v. James, 1 Wend. 289; Payne v. Smith, 19 Wend. 122; Gilpin v. Howell, 5 Barr, 41; and that being for re-exchange, &c., all possible claim for injury by reason of non acceptance merely is out of the case. Besides, in such event, there must be a special contract and an express assumpsit averred, which has not been done: 1 Taunt. 218; 10 Wend. 487; Saund. Pl. Mo. 116, 117.

      Reply.

    The contract of the plaintiff was put an end to by the denial of liability: certainly after that the plaintiff was not bound to remit. Besides, the object of the letters is to avoid that necessity before maturity. The counts are on the defendant’s liability under their letters, and that was incurred through their refusal to accept, which prevented the plaintiff providing.

      March 29.
   Coulter, J.

After the plaintiff had concluded his evidence, the court below, on motion of defendant’s counsel, ordered a nonsuit. We must therefore look through the whole evidence, for the purpose of determining whether, when taken in connection with such fair and legal inferences as a jury might draw from it, the plaintiff was entitled to recover damages or not. This action is not founded on an acceptance of the bills drawn by Cunningham on the house of Wilson & Co., of which Shaw was a member or partner, but, on the contrary, its gravamen consists in a refusal to accept according to the promise contained in the two letters of credit granted by the house of Wilson & Co. through their agent Gossler. If the letters of credit were exhibited to Maxwell, Wright & Co., the payees, at the time the bills were drawn by Cunningham — and that seems to be established by the evidence; and were within the scope of the authority to draw — and that also is quite apparent; and were taken bona fide on the faith of that letter of credit, it amounted to an acceptance of the bills, so far as regarded Maxwell, Wright & Co.; the letter bearing on.its face no condition or qualification; and the payee, after the bills were protested for non-payment, would have recovered the amount from the house of Wilson & Co. on London. But Maxwell, Wright k Co. chose to waive that remedy, and the bills being returned to them, they looked to Cunningham, the drawer, who adjusted the matter with them, he not having before that time, by remittance or otherwise, made any provision for covering them in London by remittance or otherwise, and not having even given advice to Wilson that they were drawn. Whether he paid Maxwell, Wright & Co. damages, or to what amount, does not appear distinctly in the evidence. Cunningham then proceeds by this action against the house of Wilson & Co. by a special action on the case, to recover damages for a breach of the promise to honour the bills when presented. It cannot be successfully contended that such action may not be supported. The case of Boyce and Henry v. Edwards, 4 Peters, 111, seems to settle beyond question or cavil that it can be maintained. If the promise is made upon sufficient consideration, like every other contract, the law will enforce it by suitable and adequate compensation in damages for its breach. The consideration stated on some counts of the declaration is, that a guarantee was furnished, to reimburse Wilson & Co. for all their advances, costs, expenses, commissions, &c., at the usual rate; and in other counts the guarantee is alleged to be for the repayment by the plaintiff of the sums to be drawn by him on the firm of Wilson k Co., with costs, &c. But the only evidence which the plaintiff has furnished of the nature and terms of the guarantee is contained in the answer of Wilson & Co. to Bevan and Humphreys, of the 6th January, 1837, in which they state as follows: “ We have noted these credits, and also your engagement to make due provision for all drafts drawn on us by virtue of them. Here is an essential variance. The consideration averred is a guarantee for advances and costs, &c., or a guarantee for repayment of all sums drawn for; which implies that advances to the amount of the bills, or payment of them, were preliminary to the obligation of the guarantee: whereas, the other necessarily implies that due provision for the bills was to be made by Cunningham, or by Bevan and Humphreys, for him, before they fell due. The precise meaning of the words, “ make due provision for the drafts,” would depend much upon the custom and usages of merchants at the two ports of London and Rio, no evidence of which was given except by Joseph Cabot, who said he thought if the remittance arrived one day before the bill fell due it was sufficiently prompt. But it must be considered, that an acceptance by the drawee is evidence in law that he has funds in his hands of the drawer sufficient to meet the bill, which is some proof at least that a reasonable man might understand, by the words “ due provision for all drafts drawn,” that funds were to be placed.in Ms hands before acceptance; and that would be the good sense of the transaction. But be that as it may, the plaintiff was bound to state the entire consideration, and to state it truly. The whole of the consideration must be stated in the narr.; and if any part of an entire consideration, or of a consideration of several things, be omitted, the plaintiff will fail, on the ground of variance: Brooks v. Lowrie, 1 Nott & McCord, 342. And where the declaration is for an express or implied contract, the consideration must be stated either in terms or in substance: 1 Chitty’s Plead. 295. Where, however, the whole averment may be struck out without destroying the plaintiff’s right of action, it need not be proved; but if the whole cannot be struck out without leaving out what is essential to the action, then the averment must be proved, although it is more particular than necessary, or the plaintiff cannot recover: 1 Chitty, 372. The whole of the averment about the consideration here cannot be struck out; and the plaintiff must prove it as laid but the proof is essentially variant. In addition to this, the evidence shows that Gossler, the agent of Wilson & Co., was not satisfied with the guarantee of Bevan and Humphreys, and that he considered that only as collateral; for when he furnished the letters of credit he sent a written paper, which he required Cunningham, the plaintiff, to sign; and this paper he calls the confirmation, as appears by his letter of the 3d December, at New York, marked D; which letter was produced in evidence by the plaintiff. Cabot, the witness of the plaintiff, testified that the paper was executed by Cunningham, and that it was in court, which he identified as the same paper enclosed in Gossler’s letter. • This paper was offered to the plaintiff as part of the contract, but he declined to use it or give it in evidence. Now this was the stipulation or promise of the plaintiff, counterpart to that of the defendant. It was the plaintiff’s part of the contract, and might have been material in establishing his right to recover. It might have cleared away all mist and uncertainty from the character of the consideration, and distinctly explained what was meant by the terms, due provision, to meet the drafts. This document was the real contract on the plaintiff’s part, which in the estimation of defendant’s agent was its confirmation, as he expressed himself. The letter of Bevan and Humphreys was merely collateral, and avowedly taken as security only for the performance by plaintiff of his own engagement. Why, therefore, was it not produced ? It is incumbent on the plaintiff to state every material part of his contract which shows his right to recover. The material points of a contract must be averred fully and truly; Stearns v. Barrett, 1 Pick. 443 : although immaterial parts which do not bear on the plaintiff’s right of action may be omitted. The contract consisted of the letters between the agents of the parties, the letter of credit, and the engagement on the part of the plaintiff; and, when all taken together, may have shown that the promises were concurrent and dependent. In which case it would have been incumbent on the plaintiff to aver and prove a readiness and willingness to perform on his part. And it is material to observe that the plaintiff had shown by his own evidence that there did exist a counterpart of the contract on his part, which he would not produce. It is the province of courts to decide upon light and knowledge, and they will not grope their way in the dark and under a cloud, when the plaintiff has in his possession and power a light that would dispel them, but refuses to show it.

The argument of the counsel for the plaintiff below compared the case to one where a plaintiff holds an absolute deed, and the defendant has a defeasance. But the analogy fails, because the plaintiff, by exhibiting his absolute deed, shows a cause of a.ction unbroken, and good prima facie on its face. The court can know nothing of the defeasance until it is either pleaded or given in evidence by the defendant. Nor is it sufficient to allege that the plaintiff’s part of the contract merely limited the responsibility, and"did not destroy the contract. That may be true; but that is the very question which ought to have been made patent before the court by the plaintiff. And although it did not destroy or defeat the contract, it probably established that the plaintiff had no right to recover, or he would have produced it. It perhaps interposed a condition precedent on his part. At all events he had it in his power, and would not produce it. We cannot say that its effect would have been merely to limit the damages, and that therefore it was the province of the defendant to produce it in evidence. The declaration on a recognisance with a condition must set forth the condition: Bridge v. Ford, 4 Mass. 641. Same principle decided in Harrington v. Brown, 7 Pick. 233. And this corresponds with the’just and pervading rule, that the plaintiff who seeks to take money from the "defendant ought to show a prima facie case, clear of obstruction, according to the material parts of Ms own contract — parts which might interdict his right, and completely discharge the defendant. The presumption of the law is always against a party who withholds any testimony in his power, bearing directly on his case. If he had exhibited the confirmation, it is probable a contract would have been disclosed, not covered by any of the fifteen counts in his declaration. The paper was exhibited in the court below, and exhibited here. But as the plaintiff may choose to try his fortune in a fresh suit, I deem it unsuitable to say any thing unnecessarily to obstruct him, or to extend this opinion further. When the plaintiff closed his evidence, the defendant had a right to invoke the judgment of the court upon the law as the facts stood, as there was no dispute about them. He was not bound to become the actor, and take upon himself the burden which properly belonged to the shoulders of the plaintiff. The plaintiff showed that the contract was variant from, and did not substantially conform to, the one declared upon, and refused to give evidence, placed in his power, as to material stipulations on his part. We cannot say, after carefully reviewing the testimony of the court below, that it is wrong, and that the judgment ought to be set aside.

Judgment affirmed.


author: Rogers, J.

text:
    Wagner v. Ellis.
    The rule that a husband may, by consent, give validity to the wife’s testament of personalty, equally extends to her will of realty when the husband is sole heir of the wife.
    Hence, where by articles of separation the husband and wife conveyed the wife’s land to trustees for her separate use, with power to her- to devise by will, but the articles were not acknowledged by the wife, and the wife under the power made a will to which the husband being sole heir of the wife under the intestate laws filed a caveat which he subsequently withdrew, the will is operative to pass the wife’s realty from the husband her heir.
    Certificate from the Nisi Prius.

      March 15. The plaintiffs in this ejectment were the devisees of George Wagner, who was the heir of his wife Mary, under the intestate law, she having died without issue or kindred. On the trial before Huston, J., it appeared that George Wagner and Mary were married in 1810. In 1812, they joined in articles of separation, reciting the existence of differences and their agreement to live apart, and conveying the land of the wife to trustees for her separate use, with power to the wife to sell, convey, or devise the land. The trustees also covenanted to indemnify the husband from all claims for maintenance or debts of tbe wife. This deed was proved by the subscribing witness, but tbe wife was not separately examined.
    In 1837, Mary Wagner made a will, devising tbe land in question “to otbor than the plaintiffs.”. On the 26th June, 1837, George Wagner filed a caveat to tbe probate of this will, wbicb he withdrew on tbe 28th on citation by tbe register.
    It was admitted that tbe separation had been complete from tbe date of tbe articles, and that the covenants in them had been performed by all parties.
    Tbe question of the validity of tbe will having been reserved, bis honour subsequently gave judgment for the defendants on that point.
    Wheeler, for tbe plaintiffs.
    The conveyance was an utter nullity as respects tbe estate of tbe wife for want of a separate examination, and tbe husband’s grant and covenants being only effectual as to his estate, could not operate to give a power to the wife over tbe inheritance. This point has been solemnly settled in West v. West, 10 Serg. & Rawle, 445. His subsequent title as heir was in no way affected by that grant, since it is only what tbe grantor has at tbe time that can be made to pass by a conveyance: Litt. s. 446; Co. Litt. 265 a, n. 1; 11 Mod. 163; wbicb doctrine is solemnly recognised in Girard v. The City, 4 Rawle, 336, Jones v. Roe, 3 Term Rep. 93; Yelverton v. Yelverton, Cro. Eliz. 401; Touch. 428.

      Read, contra.
    Tbe husband has covenanted for a valuable consideration to permit the operation of the will, and after bis right as heir bad accrued be confirmed it. West v. West went upon tbe ground that he could not affect the wife’s heirs, nor could she but by an acknowledged deed. Here be is heir, and thus unites tbe .only characters which can object. Tbe principle is clearly developed in the rule wbicb renders a wife’s testament valid, if made with her husband’s consent, and it is settled that his assent once given to the probate cannot be withdrawn: Maas v. Sheffield, 1 Rob. Ec. Rep. 364. The prior agreement is not essential, for by the separation a separate use is created of the subsequently acquired property of the wife: Starrett v. Wynn, 17 Serg. & Rawle, 130; Bouslaugh v. Bouslaugh, Id. 361: Pierce v. Burnham, 4 Met. 303; Gregory v. Peirce, Id. 478. These proceed upon the ground that the husband, being the only party interested, may and does thus agree that the wife may acquire property and have the power of disposition. It applies equally to realty where the husband occupies the same relative position: McWilliams v. Nisly, 2 Serg. & Rawle, 806; Hutton v. Hutton, 3 Barr, 100; Asay v. Hoover, 5 Barr, 21; Rogers v. Smith, 4 Barr, 93; McKennan v. Phillips, 6 Whart. 576; In re Wagner, 2 Ashm. 453.

      April 12.
   Rogers, J.

Marriage being an absolute gift to the husband of all the personal estate of the wife, he may dispose- off it by will, or he may empower her to make- a will, on the principle that he may waive the interest, if he.chooses, which the law secures to her, by enabling her to dispose of it during coverture. His consent, as regards personal estate, may be given either after the wife’s death or by prior- contract or assent. This principle, as applicable to personal property, is not and cannot be disputed, for it is recognised as law in all the elementary treatises from the earliest period; and the only dispute there ever has been is, whether the husband, having once given his consent, is permitted to revoke it at anytime before probate; and that he has not the power would seem to be ruled in Maas v. Sheffield, 1 Rob. Ec. Rep. 364, where it was held that a husband having been a witness to his wife’s will, and after her' death having given his written consent to that will, is not at liberty to withdraw his consent. If this was a contest as to the personalty, as the husband by the deed, to which he at least was a legal party, gave his consent that she should make a will, and after her death agreed that the will offered for probate should be proven, it would be free from all difficulty. But while this principle is freely conceded, as regards the personal assets, it is denied as to the real estate. A married woman, (says Swinb. 88 and 142 of ed. 1803,) by the laws and statutes of this realm, (England,) cannot make her testament of any manors, lands, tenements, or hereditaments. And first, -she cannot demise the same to her husband. The equity of which prohibition,(if I may be so bold, with the good favour of our temporal lawyers, to insert the reason and consideration of the civil law,) is not obscure; for if this gap were left open, few children would succeed in the mother’s inheritance. But by how much the husband were more cruel and the wife more timorous — he crafty, she credulous— by so much the more were the lawful heir in danger to be disinherited, and the cruel and deceitful husband in hope to be unworthily enriched and advanced; wherefore, if the wife should demise any of her manors, lands, tenements, or hereditaments, or any part thereof to her husband, this demise were void, because the same is presumed to have been made by the constraint of the husband, or other sinister means. Secondly, although it did appear by due proof that the husband did not constrain his wife thereto, but that she of her own accord or free motion did make any such devise, either to her husband or to any other person by his consent, yet is not the devise good, as well because the words of the statute are general, (and where the law doth not distinguish, there may we not distinguish,) as for divers other reasons, grounded in the common law of this realm. There is, therefore, a difference between real and personal estate in this, for the husband may give her power to dispose of her personal estate, because by marriage he has the sole property in and power over it; but it is otherwise of lands of inheritance belonging to the wife, for he cannot give her such a power to make a -will in prejudice of her heir-at-law. The agreement in the latter case signifies nothing: Ambl. 627; George v.-, 2 Swinb. 145, in note; Brook v. Turner, 2 Mod. 170. Now, although a feme covert may make a will of her real estate, through the medium of a power expressly given or reserved to her for that purpose, the will operating as an appointment, (2 Ves. 75; 3 Atk. 707; 6 Bro. Parl. Cas. 152; 2 Ves. jun. 216;) yet this case would be free from difficulty, on the authority of West v. West, 10 Serg. & Rawle, 445, which is nowise distinguishable from this case, except that this deed contains an express power to the wife to make a will. But this is of no account, as in consequence of the wife not being examined separate and apart from her husband, the will would be inoperative and void; for, in the case cited, it is ruled that when a feme covert joins her husband in a deed of her real estate, but never separately acknowledges it, conveying the estate to trustees for the payment of the husband’s debts and then in trust for her separate use, and afterwards being in a state of separation, the wife by an instrument, purporting to be her last will, disposes of the property and dies, the disposition is void. This decision is conclusive as to the right of her heirs; but do these principles apply to the husband or to his heirs under the circumstances of the case ? By the act of the 21st January, 1819, 7 Sm. 142, and the tenth section of the act of the 8th April, 1833, it is enacted, that in default of known heirs or kindred, the real estate of an intestate, being a married woman, is vested in her surviving husband for such estate as the intestate had in the premises. By the operation of these acts, the real estate in controversy was vested in the husband as the statutory heir of the wife; it is then difficult to perceive, either in law or in the policy which governs the decisions in relation to her power to will, any reason for any distinction between her real and personal estate. The reasons which govern one apply with equal force to the other; for he merely consents to waive his own rights, and consequently the rights of his heirs. Not a single argument which is urged against her power to disinherit her own heirs can be used against the exercise or right freely conceded to her by his own voluntary consent, as against himself and those claiming under him. The deed regularly executed by the husband contains an express consent that she shall dispose of her estate, real as well as personal, by will; and moreover it appears on the record that after her death he withdrew a caveat filed against the will, and agreed that it should be proven in due form, and it was accordingly so done. The will being admitted to probate disposes of the real as well as the personal estate, nor do I perceive any force in the idea that the husband intended his consent to apply to the disposal of the latter and not the former. We perceive no warrant for any such distinction as is attempted to be made between the two species of property. As, then, the husband is bound by his assent to the will, and could not dispute it, he and his heirs who claim through him are estopped also from denying its validity. It will be perceived that there is no intention to shake the authority of West v. West, but this is put upon its special circumstances, which, in the opinion of the court, constitutes an exception, so far as regards the rights of the husband and his heirs.

Judgment affirmed.


text:
    Souter v. Baymore.
    An unnecessary deviation, and injury ensuing to the cargo, is no defence to ah action for freight, except so far as the loss was occasioned by the deviation.
    And so where the master of a vessel who has contracted to carry no other cargo, and, in violation of his contract, takes additional cargo, an injury ensuing is no defence, except so far as the damage resulted from the breach of his contraetj A decree, in the admiralty appealed from, cannot he pleaded as a former recovery.
    1st error from the District Court of Philadelphia.

      March 16. Assumpsit for freight on wheat. Pleas. — Deviation, whereby the voyage was broken up: Deviation and overloading, whereby the wheat was injured: An agreement not to deceive other freight on board, and that other freight was received whereby a leak occurred, and the wheat was injured. On the trial there was evidence that the , plaintiff had agreed to carry certain wheat from the Rappahannock direct to Philadelphia; and that, without necessity, he had put into the Piankatank river, and taken on board a deck load of wood. On the voyage to Philadelphia, the vessel sprung a leak, in consequence of stress of weather, and the wheat of defendant was injured.
    The plaintiff’s points, on which the errors were assigned, were, that, if the master unnecessarily deviated, the owners were answerable for any subsequent loss to the cargo during the voyage. 2. If there was a contract for the exclusive use of the vessel, an unnecessary deviation, and taking in additional freight, cast upon plaintiff the responsibilities of insurer of defendant’s goods. His honour instructed the jury the rule was not so broad but the master and owner were liable for any damage actually resulting from the deviation or breach of the contract.
    On the trial, the defendant pleaded a former recovery in the admiralty, to which there was a demurrer. The record of the District Court of the United States given in evidence, and referred to in the plea, showed that, in a libel for the damage, a decree was made since this action was brought, and that there was an allowance for the freight there made. There also appeared on the record an appeal entered from this decree to the circuit court. It was admitted this was the decree referred to in the plea, and the cause was argued as if the plea set out the record given in evidence, and it appears so to have been treated by this court; for, otherwise, the fact of the appeal taken did not appear in the plea demurred to.

      Guillou and Dunlap, for plaintiff in error.
    The decision of the admiralty was on the same point now in controversy, and an allowance was made for the very subject of the present demand; it was, therefore, a mere question for a jury to determine whether the parties or privies to that action are parties or privies to this: Pet. C. C. R. 202; Marsh v. Pier, 4 Rawle, 285; Carvill v. Garrigues, 5 Barr, 152; 2 Saund. Pl. and Ev. 611; Hibshman v. Dulleban, 4 Watts, 183; Kilheffer v. Herr, 17 Serg. & Rawle, 322.
    The deviation, it is admitted, would discharge an insurer; and the same consequences must result where the shipper stands his own insurer; the reason is the same; the risks are varied : Hughes on Ins. 180; Coles v. Marine Ins., 3 Wash. C. C. Rep. 159; Martin v. Delaware, 2 Wash. C. C. Rep. 254. More particularly is this so, where there was a contract for a direct voyage.
    G. M. Wharton, contra.
    The plea is defective in form and substance. In form, as not pleaded puis darrein continuance,
      which, it should have been, as the decree was subsequent to the bringing of this actionin substance, because the record shows the matter is yet at large by the appeal, according to the settled practice of the admiralty.
    The ruling of the judge, as to the effect of the deviation, was clearly in accordance with the cases. In Davis v. Garrett, 6 Bing. 716, the jury found specially there had been an unnecessary deviation, which caused the loss. So in Hart v. Allen, 2 Watts, 114, it was held to be necessary to prove the loss to have been occasioned by the unskilfulness of the crew, or want of seaworthiness: 3 Kent’s Com. 209, 210; Davidson v. Gwynne, 12 East, 381; Palmer, 397.

      Reply.

    The appeal does not make the former decision less a binding one, until reversed, for the purposes of pleading. This is shown from the cases of awards: Reed v. Garvins, 7 Serg. & Rawle, 354.

      March 27.
   Bell, J.

The plaintiff in error suggested two points for consideration. The first of these is, whether a conclusive effect is to ‘be ascribed to the decree pronouncfed in the admiralty, by which an allowance of the charge for freight claimed in this action was accorded to the defendant in error by way of set-off ? Though the affirmative of the proposition was argued with very considerable emphasis by the plaintiff here, no hesitancy is felt in resolving it negatively.

It is conceded, as an unquestionable rule, founded on public policy, that the judgment of a court of competent jurisdiction on the same subject-matter is, as a plea, a bar, and as evidence, where it is receivable without being specially pleaded, conclusive betwéen the same parties or their privies, and this without regard to the variant forms of action or modes of proceedings which may happen to be adopted as a means of litigating the points in issue: Cist v. Zeigler, 16 Serg. & Rawle, 285; Darlington v. Gray, 5 Whart. 493. Nor is it material that the plea is pleaded or the evidence given in air action instituted before the proceedings in which the former judgment or decree was pronounced; for it is still within the maxim nemo debet bis vexar£ pro una et ead&rn causa: March v. Pier, 4 Rawle, 284. But a judgment must be, in its nature, final before it can be permitted to operate as an estoppel.. He who adduces it as a means of conclusive defence must be able to show, that, until reversed, it binds the respective rights of the parties to it, or his antagonist may go behind it. But it is conceded, though imperfectly shown by the records given in evidence, that the decree, upon which the plaintiff in error founds in part his defence, has been regularly appealed from, and this appeal is now -pending and undetermined in the Circuit Court of the United States. Now, it is settled, that, in admiralty and maritime causes, an appeal suspends the sentence altogether, and it is not res adjudioata until the final sentence of the appellate court is pronounced. The cause is there heard de novo, as if no sentence had ever been passed: Dunlap’s Adm. Pr. 316, 317. The information filed in the inferior may be amended in the superior tribunal; for, on the appeal, it is admissible to allege what has not before been alleged, and to prove what has not before been proved: 2 Brown’s Civ. and Adm. Law, 436, 437; The Venus, 1 Wheat. 113; The San Pedro, 2 Wheat. 140; Hawthorne v. United States, 7 Cranch, 157. So far is the principle carried, that, in Yeaton v. United States, 5 Cranch, 281, where a ship had been condemned for the violation of an existing statute by both the District and Circuit Courts; but, after appeal to the Supreme Court of the United States, the statute expired by its own limitation; it was held the penalty of the act could not be enforced. In delivering the opinion of the court, Chief Justice Marshall said the cause was to be considered as if no sentence had been pronounced, and it had long been settled on general principles that, where no sentence has been awarded, a penalty could not be inflicted for the breach of a statute expired or repealed, unless under a special provision. It would be difficult to adduce a stronger illustration than is furnished by this case of the rule, that a decree in admiralty appealed from is treated as non-existent, pending the appeal; and in accordance with it is the act of Congress of 1803, c. 93, which gives the appeal and authorizes the introduction of new evidence on the hearing. The decree of the inferior court is conclusive only on a party who does not appeal from the judgment: Stratton v. Jarvis, 8 Peters, 4; and, in this particular, it is altogether unlike the case of an award made under our arbitration laws appealed from, but which may yet, according to Reed v. Garvins, 7 Serg. & Rawle, 354, be pleaded as a former recovery. But this is a consequence of the statutory provision, which gives it the effect of a judgment until reversed or modified on appeal, and it is, therefore, to be considered as final until so reversed. It has been said to be a new species of judgment. If no appeal be entered within twenty days, it becomes absolutely final; and an appeal but entitles the appellant to a trial by jury of the same subject-matter litigated before the arbitrators, but still leaving tbeir award untouched by the appeal: Reed v. Garvins; Gray v. Darlington, supra.

To attribute to a decree in admiralty the quality of an estoppel, might be productive of infinite injustice. In the case in hand, it would bar the plaintiff below of his demand, and yet the Circuit Court, taking a different view of the law on the facts, or of the facts, from the evidence given in the District Court, or upon new allegations and proofs, may altogether disallow the claim for damages prosecuted by the defendant’s consignor, when, of course, the allowance made for freight will fall with it. Thus the plaintiff below might be doubly defeated, and this, too, without inquiry into the merits of his claim. But we are not forced to hazard this mischief by the operation of any technical rule. As has been shown, the subject agitated in this suit had not passed in rem judicatam, properly speaking. The court below was, therefore, right in its instruction to the jury on this point. This view renders it unnecessary to consider whether the parties to the two suits can be regarded as the same, or as privies. The second question is, whether a deviation from the direct course of the voyage, under the agreement in proof, will make the master and owners of the vessel answerable for subsequent damage suffered by the cargo, though such injury was not occasioned by the deviation. The judge below was of opinion that the plaintiff was liable only for any loss actually resulting from the deviation. This opinion, we think, unquestionably correct. The contrary position is based upon a supposed analogy between the contract of a common marine carrier, where no insurance has been effected by the owner of the goods, and the contract of assurance which will be avoided by a deviation rendering the owner and master of the vessel liable to the insured. It is thought that, where there is no actual insurance, the owner of the freight is to be regarded in the double character of his own insurer and of owner, and, in the latter capacity, may claim to stand in the relation of an assured, whose policy has been determined by the misfeasance of the master. But the well-considered case of Hart v. Allen and Grant, 2 Watts, 114, established that no such analogy exists. As is said by the Chief Justice, speaking as the organ of this court, in the contract of assurance, it is the assured who enters into the warranty, which is consequently introduced for the protection of the insurer; but there is not the same reason to make it a fundamental and specific condition of the contract, where the owner of the goods is fully protected by the general liability of the carrier for the actual consequences of any delinquency. In another part of his opinion, he exhibits clearly the impolicy and impropriety of so narrowing the exception in favour of the carrier as to make him answerable for the acts of Providence, as a punishment of an independent delinquency — a rule which might subject him to make good a loss from shipwreck for having omitted to supply the ship with proper papers, a constituent part of seaworthiness, and the omission of them an undoubted negligence.

A common carrier by sea, like other carriers, is an insurer against all losses except those occasioned by Providence, the common enemy, or those he specially guards himself against by his contract. But even then, if the loss proceeds from his own negligence, or delinquency, he will be liable to make it good. Yet he is only answerable for the consequences of his delinquency, and not for its inconsequential existence. If the goods arrive safe, he cannot be called on to answer for an intervening act of impropriety, or breach of agreement, which has produced no bad results, and the rule is the same though the cargo be damaged from a cause contemplated by the contract of affreightment, as the perils of the sea, provided the cause be not' itself made efficient for injury by the negligence or other misconduct of the carrier. The judge, who tried the cause, left it fairly to the jury to say whether the injury sustained by the wheat was attributable to the deviation complained of, and they have returned a negative answer. In this I have endeavoured to show there was no error.

The whole case made here by the counsel for the plaintiff in error, is thus disposed of, and it results that the judgment must be

Affirmed.