author: Kennedy J.

text:
    ROYER against AKE.
    A Justice of the Peace has jurisdiction of a cause of action arising op a covenant, contained in a deed of conveyance, for the payment of a g-round-repl; although the action be brought against the assignee of the grantee., '
    A previous demand of arrears óf a rent-charge, is not necessary to the maintenance of an action of covenant fqr thé recovery thereof; por is a demand necessary before a distress made for such rent; although such action pr distress may be against the assignee or the covenantor and, grantee.
    Tile assignee of a grantee' of land, which by the original conveyance Was made subject to a rent-charge, is liable- for the rent in ilfe same manner as {he originaj grantee.
    Although the right of distress, fop the arrears of rent, be given by the terms of the deed which contains the reservation, this will not deprive tip grantor of any other, remedy which the law giyes tp attain the same end. ' ■ ' :

    A previous demand is indispensable to the eyercise of a right to re-enter, for the non-payment of a rent-charge.
    The remedies for the récbvery of arrears of a rent-charge, are cumulative; the fact, therefore, that there was personal property on the premises granted, which might have been distrained for the payment of the rent, will not avail the assignee, as matter of defence, in an action of covenant against him. It is a covenant running with the land, and the assignee is, therefore, liable in the same manner as the Original grantee. -
    Where such assignee is the holder of several lots, liable to a 'reqt-pharge, which he, has derived title to, from different persons arid at different times, the" arrears of such rent, for the different lots, may be recovered ip the same action of covenant.
    Writ of error to Huntingdon county.
    ' This is an action of covenant, in which J.acob dike was plaintiff in the court below, and brought hy him before a Justice, from whose judgment there was an appeal, to recover certain rents, charged upon four lots of ground, numbers 76, 77, 94 an<j 95, situate in a town of Huntingdon county, which had bean laid out by him. These lots were sold and conveyed originally to different persons, by deeds mutually executed by ¿Ikc, ¿nd the severalgrantees; in each of which the* habendum was to the grantee, “his heirs and assigns, yielding and paying therefor, and thereunto, the said Jacob dike, his heirs, "executors, administrators or. assigns, the first day of November,' and every year, the annual rent or sum of-one Spanish milled dollar or the value thereof, in,lawful money of Pennsylvania;, the first payment to be made off the first day of November, A. D. 1796, and so on yearly, and'every year forever, thereafter: provided, always, that if-the annual rent, or sum of one Spanish milled dollar, or the value thereof, shall be behind or unpaid, in part or in whole, for the space of five days, after the days oif payment, on which' the same ought to have been paid as aforesaid, that then it shall and may be láwful for the said Jacob dike, his heirs, executors, administrators or assigns, his or their agent, or attorney to recover the 'rent unpaid as aforesaid, by distress of the goods and chattels, and in case they be not sufficient, then of the lot of him, the said W. D. (grantee,) his heirs, executors, administrators or assignees, rendering the overplus, if any, thereof, after costs being first paid, unto him the said TV. D. his heirs, executors, administrators or assigns.” These lots passed through several hands from-the respective grantees, until the.titles'of them all came to be regularly vested in the defendant below, Samuel Royer, as assignee of the same, by deeds of conveyance duly executed. Upon a special verdict in the court below, setting forth the original deeds between Jacob Ake, and his respective imme-* diate grantees, as also the subsequent deeds of assignment and transfer down -to Samuel Royer,,and the several sums of rent which were due and in arear, upon each lot, all mf which had become payable after the assignment to Samuel Royer; and likewise that upon the lots, numbers 76 and 77, there were goods and chattels'at all times sufficient to have discharged the rents thereof, by distress of the same goods; and farther, that no demand was ever made of the rents from Samuel Royer or his tenant, until the bringing of this suit. The court belowr rendered a judgment in favor of Jacob Ake the plaintiff, for the aggregate sum of the rents, due upon all the lots.. x ■

      Potter for plaintiff in error.
    A Justice of the Peace had not jurisdiction of the subject-matter of this action. The inconvenience which would result,- from giving jurisdiction to a Justice of -the subject of rent-charge, an incumbrance upon the fee, created by a covenant running with land, is a strong reason to show, that the Legislature did .not intend to give it. The 22d section of,the act of 20th March, 1810, did not design to embrace any other case of rent, but that which'arose on a term of years. And it is equally clear that the 6th section of the act of22d of March, 1814, did not design to submit-to Justices of the Peace, questions arising out of privity of estate. 1 Bin. 220.
    The action cahnot be maintained without a previous demand. Buskyn v. Edmond, Coke EHz. 5S5. If the action were upon express covenant by the defendant, no demand would be necessary, but it is otherwise where' there is but an implied liability. Roll. Ab. 459. Letter L, Nos. 42.45. Com. Dig. 220. . Title, Rent, LetterD, Ños. 3,4. 1 Rato le, 161. -
    The remedy . stipulated' by the parties, in the covenant itself, must be pursued-. It is a personal covenant of the alienee, and does not pass to the assignee; for if it did, the plaintiff had a right' of action against all. or any of those who once owned the lots: if an ownership of the lots created a personal liability, the owner could not divest hjmself of such liability by a sale of them. The assignee is not liable. 4 Yeates, 387. All remedies but that prescribed, are excluded by the terms of the covenant. 2 Fern. 382. If the rent due amounted to more than the value of the lot, which is a probable case, would the law endure a recovery of it from the assignee. The remedies may be cumulative as against the alienee, but not against the assignee. An action of covenant will not lie upon a privity of estate, though debt may. 1 Dal. 326. 1 Wash. Ct. Rep. 375.
    It was also argued, that the plaintiff could not recover the rents of the different lots in the same action, inasmuch as the titles'were vested in the defendant at different times, by different conveyances from different persons..

      Blanchard for defendant in error.
    The acts of 1810 and 1814, do, by express terms, give jurisdiction to a Justice of the Peace, in all cases of rents not excéeding in amount one hundred dollars. The lots conveyed have nothing to do with the subject-matter of the action, they are but a medium by which the defendant becomes personally liable. No previous demand is necessary in any case, in order to the maintenance of a common law remedy. The deed is in consideration of the covenants herein after mentioned, to be paid, done and performed by the grantee, his heirs, administrators and assigns.- It is not an implied, but an express covenant, binding upon the assignee who accepts the estate upon the stipulated condition. There are no terms of exclusion, as to the remedy, contained in the covenant; all the remedies are, therefore, concurrent; and either may be pursued, by the grantor. 1 Rawle, 125. That covenant was a proper remedy against the assignee, were cited, 1. Chit. PLAll-274, 3 Berg, fy Rawle, 502. 2 Penn. Prac. 28. 2 Rawle, 159. 1 Rawle, 161. 2 Penn. Rep. 23. 5 Coke Rep. 16. 1 Saund. 241. St at. Hen. 8. Rob. Dig. 227.

    The court declined to hear any further argument on the point, that the different rents could not be recovered in the same action.
   The opinion of the Court was delivered by

Kennedy J.

The first error assigned is, that a Justice of the Peace bad no jurisdiction of this cause of action. This is certainly a case of rent, and the sixth section of the Act of Assembly, of the. 22nd qf March 1814 declares, that “Justices of the Peace and Alderm.en shall have original jurisdiction of all cases of rent, pot exceeding one hundred dollars; to be recovered.as debts of similar amount are recoverable. The plaintiff’s claim before the .Justice, as well as afterwards in court, being less than one hundred dollars, falls directly within the express words of the act, and léaves no ground to entertain the least doubt about its being cognisable before a Justice oftheFeacé.

The second error assigned is, that no demand was made of the rent by the plaintiff below, before he brought this action. It is contended that this ought to have been done; and the more especially here, when the plaintiff in error was sited in the character of assignee. It may be observed that in case of an indenture, or deed executed by both the lessor and lessee or, grantor and grantee, a covenant to pay the rent therein reserved arises on the words yielding and paying. Anon. 1 Sid. 447 pl. 9. Harper v. Burgh or Bird 2. Lev. 206. Webb v. Russel, 3 Term. Rep. 402 Vivyan v. Arthur, 1 Barn. & Cres. 416, S. C. 2. Dow & Ry 670. ft is a covenant which runs with the land, and will be binding on the assignee, without his being specially named. Porter v. Swetnam, Sty. 406. Isteed v. Stonely, 1 And. 82. Parker v. Wibb, 3 Salk. 5 Halford v. Hatch, 1 Doug. 183. Stevenson v. Lambard, 2 East. 575, & Vivyan v. Arthur, 1 Barn. & Cres 416, and as long as he continues to be assignee, he is liable for the rent in the same manner as the lessee or original grantee was.

Of the authorities quoted'by the counsel for the plaintiff in error to support his proposition, that a previous demand was necessary to be made before this action could be sustained, Bufkin v. Edmunds Cro. Eliz. 537, seems to be the only one that is applicable. It wa's an action of debt for rent, in which a judgment had been rendered for the plaintiff, and by writ of error was taken into the exchequer chamber, where the judgment was reversed for want Of other averments in the declaration, beside that of a previous demand, but all the Justices and Barons, except Anderson, - are-said to have held, there ought to be a demand. • I have not been able to discover any authority beside this to the same effect; though I must acknowledge that there are but few books to resort to on the subject. I think that the precedents for declarations, to be found in books of authority, in actions of covenant and of debt for rent, do not warrant or support it. A distinction exists between the remedy by re-entry for non-payment of rent, and the remedies by distress, covenant and debt. In the first, a previous ■ demand is indispensably requisite; because the remedy by re-entry operates in derogation of the grant, and deprives the tenant .of his estate: As it is presumed that he is then residing on the premises, in order to pay the rent, for the preservation of his estate, the law very properly requires, that the very highest evidence of a contrary presumption, which is an actual demand made upon the land, shall be given before so severe a penalty as a forfeitare of his estate shall be inflicted. Bac. Abr. Tit. Rent. [I.] page, 853, 5th Ed. But as is here said, “where the remedy for the recovery of the rent is by distress, there needs no demand previous to the distress; though the deed says “that if the rent be behind, being lawfully demanded, that the lessor may distrain, when the rent becomes due. So it is, if a rent charge” which is the case before the court, “be granted to A. and if itbe behind, being lawfully demanded, that then A. shall distrain: and he may distrain without any previous demand, because this remedy is not in destruction of the estate. It is here also said, that “the very taking of the distress is a legal demand, which is all that was required by the deed.” The same, I apprehend, may be said of the commencement of an action,of debtor of covenantfor the rent, that it is but a legal demand of it, from which the tenant may relieve himself by pleading on the return of the writ, that he was ready at the time and place, when and where the rent was to have been paid, ready to pay, but no one appeared to receive it, and that he has ever been and still is ready to pay, and at the same time bring the money into court;,this he can do with as much facility as he can relieve himself from the' effects of a distress by tendering the rent, which seems to be no hardship. But these cases are much stronger than the case under our consideration, because no demand is required by the terms of the deed. And in pages 356 and 357 of the same book itis said, “if the lessor forbears to make an actual demand when the rent is in arrear, he may recover it by action of debt or distress, and so continue the lease, because these remedies, being not in defeasance of the grant, the lessor may pursue them without an actual demand.” In this respect there can be no distinction between debt and covenant, because whenever the rent arises from a deed executed under the hands and seals of both parties, covenant will lie,, upon the same terms with- debt, for the rent which may become due.

Thethird error is, that the court erred in rendering judgment in favour of the plaintiff below in this action, because a different remedy is expressly provided for by the terms of the deed containing the grant and the' reservation. It may perhaps be doubtful whether the remedy adopted in this case is not also expressly provided for by the same deed: because there are softie authorities which go to shew that the words “yielding and paying,” create an express covenant to pay the rent. See Newton v. Orsborn, Sty. 307. Porter v. Swetnam, Sty. 406, 431. Hellier. v. Casbard, 1 Sid. 240, 266. 1 Lev. 127, Roll. Abr. Cov’t. 519, pl. 10. But whether the covenant growing out of these words be considered express or implied, there is nothing in the other remedies mentioned in the deed, nor yet in any other part of that instrument, which tends to prove, that it was the intention of the parties to it, that these words were not to have their ordinary operation and effect. Beside, the remedy given by these words is more favorable for the tenant, than the others which are there mentioned, and it would be strange as well as unreasonable, that because the grantor thought proper to have introduced into the deeds, for his greater security, remedies of the more severe and harsh kind, in order to compel payment of the rent, that the tenant, for that reason, if the grantor should feel so disposed, can not be indulged with. The more mild one is admitted to exist, if the others had not been mentioned. Upon a true construction of the deed, the grantor must be considered as having the right to adopt and pursue either of those remedies at his election, in case the rent should be in arrear. They are cumulative: and if so, it disposes of the fifth and last error, which is, that there were at all times goods sufficient on two of the lots, to have paid the rent in arrear for them, by the terms of the deed, no proceeding is to be had against the lots, in order to obtain payment of the rents becoming due upon them;-unless in the event of goods sufficient for that purpose not' being found; but there are no words of restriction, as to the grant- or’s proceeding by action of debt or covenant to recover the rents, whether goods sufficient to discharge them, are to be found upon the premises or not.

The fourth error is the only remaining one to be noticed, and in which we think there is nothing. It is that the plaintiff below, had no right to join his claims for the rent sf each of the four lots, all in one action. I must confess, that I can perceive no legal principle whatever,rwhich favors this objection. Each of these demands is precisely of the same character, and existing between the same parties, which makes them most completely joinable. They are so perfectly so, that if the plaintiff beloiv had brought four suits instead of one, the court, upon the application of the defendant ought, and no doubt would, have ordered a consolidation of them, in order to avoid an unnecessary expence, and consumption of time in the trial of them, both to the county and to the parties, unless by doing so, it would have entitled the defendant to a longer stay of execution than he otherwise would have had a right to elaim. \

The judgment is affirmed..


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    M’CONAHY against KESSLER.
    Xu an action of replevin by a stranger against a landlord, who had distrained his property on the demised premises, for rent, on the plea of property in himself, and not in the tenant, the tenant is a competent witness to testify that the prop, erty belonged to the plaintiff.
    Error to Mifflin county.
    This was an action of replevin, in which Frederick Kessler was plaintiff, and James M’Conahy was defendant. M’Conahy had leased a house to John Boombaugh, and the rent being due, M’Conahy distrained a stove on the premises, for which Kessler took out the replevin; upon the trial the plaintiff' offered Boombaugh the tenantas a witness, to prove that he had, previously to the distress, sold the stove to Kessler, and that when distrained it belonged to Kessler. The witness was objected to on the ground ofinterest; the objection was over-ruled and the defendant excepted. This was the only point argued and decided.

      I. Fisher, for plaintiff in error.

      Potter, contra.

   Per Curiam.

The argumenton the only point which has been pressed,.is that a verdict for Kessler would preclude M’Conahy from baYing recourse to Boombaugh the tenant, who is therefore supposed to have such an interest in Kessler’s recovery as to disqualify him as a witness. Whatever might be the effect of a verdict on the plea of non demisit or of no rent in arriere, or of eviction by the landlord, it is certain that the alleged effect would not proceed from a verdict in favor of Kessler, on the plea of property in himself, and not in the tenant: The latter was called to prove, that he had sold the property to Kessler, and no more; and though that might, under the circumstances, have been immaterial, yet if the property were in fact discharged from the distress, for reasons which do not affect the existence of the rent, it is hard to conceive why it should exempt the tenant from a fresh proceeding. He was competent therefore to prove the issue of property which ¿id not affect the question of his liability to his landlord, and for $hat purpose, at all events, he was properly admitted.

Judgment affirmed.


text:
    McAllister against Gallaher.
    IN ERROR.
    Money deposited with the stake-holder of a horse-race, as a forfeit by either party whose horse did not run, is recoverable from such stake-holder'by' virtue of-the act of Assembly. • ' ; . ■'
    tf the stake-holder pays the money to him to whom it was forfeited, without notice, and in good faith, he is protected by the limitation,'contained in this act, within Which suit must be brought. But it Is otherwise if he acted unfairly, or connived with one of the parties; and this isrightly left to the jury.' -i
    Error to the Common Pleas of Mifflin County.

      Gallaher and L ’ebo made a bet of one hundred dollars upon a bdrse:race, to be run' at a future time, and each deposited fifty dollars in"the hand- of William, McAllister, which fié, who did not appear upon the ground with his horse at the appointed timé, should forfeit to the' other. Gallaher did not appear, arid McAllister gave up the forfeit to Lebo, upon being indemnified'. Upon the trial of the causé, it was alleged, arid somé proof given of.it, that some unfair practices were résorted to by Lebo, ' to prevent Gallaher from appearing on the ground with his horse, and that McAllister wa's'priyy thereto. The bet was made'and' the money deposited in September; and this suit was riot brought until the following May.'
    The defendant asked the Court to instruct the jury:
    1st. That money deposited with a stake-holder as a' forfeit, in case of no race, arid actually forfeited, cannot be recovered back under the act of Assembly against horse racing; and that' such a case is not within the act providirig for recovery back, and plaintiff' is riot entitled to recover. '
    •' 2. That a stake-holder is protected by the limitation in the fourth section of said act; and that if the jury'believe, that suit was not instituted 'within two calendar months after the loosing and payment, this suit cannot be sustained, and plaintiff is hot entitled to recover.
    ■' 3. Thát if the jury'believe, that no notice was given by plaintiff” to defendant, not to pay over the money, before actual payment to the winner' of the forfeit, plaintiff is not entitled to recover.
    1 To which the Court {Burnside president] answered:'
    1. We say that money can be recovered from a stake-holder that is deposited as a forfeit in case of no race.
    ■' 2. If the stake-holder pays in good faith, without noti.ee, the limitation of-two months will protect him; but the jury will iriquire, did McAllister act with good faith? Did he deliver if over as'the parties agreed he should? jf he did not, this action can be sustained' ágáinst him. If he acted unfairly arid connived with' one' of the' parties, and paid over the money, and the jury should believe the money was not lost, he will not be protected. 1" " ' ’

      The opinion of the court was assigned for error and argued by

      Pol ter'for plaintiff in error.

      F. Watts, for defendant in error.
   Per Curiam.

AH contracts and agreements, the consideration of which is money,'or airy other thing betted, being declared unlawful and void,the principle of this case seems to have been decided in McAllister v. Hoffman, 16 Serg. & Rawle 147; and we discover nothing erroneous in the record. 1 1 ' ' ‘

judgment affirmed.


author: Kennedy, J.

text:
    HOLDEN against WIGGINS.
    In an action before a Justice of the peace, the defendant claimed a right to offset "a ! : demfind 'which-he'had against the'plaintiff, for a sutil exceeding one hundred dollars; held: that the Justice was right' iti rejecting the evidence of such off-set, on the ground, tliat it exceeded, in amount, his jurisdiction.
    Upon an appeal tó the Court of Coriimon Pleas in such case, the case having been ’’ referred to arbitrators',’ under the compulsijory arbitration lá\v, the defendant offered the same evidence to the arbitrators, who made a report in favor of the plaintiff, artd appended thereto this memorandum, “the defendants claim exceeding the plamtiff’s'three hundred and thirtyJwq" dollars, jyas excluded, as out of our jurisdiction.’) Upon this report judgment \yas entered, which was affirmed.
    When, in such case, thedémand'ofthé defendant is composed of several items, he. '•may off-set such of them as do not exceed the jurisdiction of tile Justice.
    Where the transcript of the justice, from whose judgment an appeal was entered, “ set out thé plaintiff’s demand to be “ninety-eight' 'dollars due' op book account, ” it was held, that this was a! sufficient statement of the plaintiff’s claim, to sustain'a . judgment 'upon an aWard of arbitrators. ’'
    Error to the Common Pleas of Bradford county.
    In this cáse, in which Lawrence Wiggins was plaintiff, ancl Gustavús JP. Holden defendant, the transcript of- the Justice, before whom the case originated, exhibited the cause of action tó be “debt or demand not exceeding one hundred dollars.5* The parties appeared, and plaintiff demanded of defendant ninety-eight dollars, due on book account'. The defendant offered to off-set a claim ágainst the plaintiff on'book account of more than, one hundred dollars; after hearing 'the parties, and their proofs, the defendant’s claim exceeding the jurisdiction of the’Justice of-the Peace, judg-’ ment was rendered for the plaintiff on his claim,'for'thirty-six dollars and twenty-seven cents, with costs, &e.” The defendant apr pealed to the Common Pleas; and after the first term, the plaintiff,, without filing any declaration Or statement, other than that contained on the transcript of the Justice, entered a rule of reference, and' had arbitrators appointed, who subsequently mejTánd heard.both pariies and made an award in favor of the plaintiff, for fifty-six dollars and eighty-four cents, with costs. To this report the arbitrators appended this note: “the defendant’s claim exceeding the plaintiff’s three hundred and thirty-two dollars, was excluded, as out of our jurisdiction.” Upon this award judgment was entered, to reverse which this writ of error was sued out, ^.nd the following errors assigned: 1 ‘ ; •
    1. No declaration or statement was filed when'the rule of reference was entered. 2. The transcript of the Justice does not set out any cause of action. 3. The Justice and arbitrators refused to allow any part of defendant’s set-off, because the whole together amounted to more than one hundred dollars.
    Argued by the plaintiff in error in person; and by

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

Kennedy, J.

This suit was commenced before a Justice of the Peace, by the defendant in error, against the plaintiff in error, to recover a demand which he had against him, not exceeding one hundred dollars. . Fi'om the record returned-of the proceedings had before the Justice, it appears that the plaintiff in error had a claim,founded upon a book account,against the defendantin error, which he produced at the time of trial before the Justice, and claimed to have it allowed and set-off. It, however, exceeded one hundred dollars, and the Justice, for that reason, believing that he could not take cognizance of it, dismissed it from his consideration, and rendered a judgment in favor of the plaintiff before him, for thirty-six dollars and twenty-seven and a half cents, besides costs of suit. From this judgment the plaintiff in error appealed, and brought the cause into the Court of Common Pleas of the county. ’While pending there, the plaintiff below entéred a rule of arbitration, under the compulsory arbitration law, and had the cause referred to the decision of arbitrators, who, after' hearing the proofs and allegations of the parties, made an award in favor of the plaintiff below', for fifty-six dollars and eighty-four cents, with costs of suit. They also appended to their report a taemorandum which they signed, in the following words: “The defendant’s claim exceeding the plaintiff’s three hundred and thirty-two dollars,' was excluded, as out of our jurisdiction.”

Justices of the Peace in this State have no jurisdiction in civil cases; other than that which isexpx-essly given to them by statute. This suit was brought before the Justice under the Act of Assembly, passed the 20th of March, 1810, which gives Justices of the Peace “jurisdiction of all causes of action arising from contract, either express or implied, in all eases where the sum demanded is not above one hundred dollars, except in cases of real contract, where the title to lands or tenements may come in question, or action upon promise of marriage.” Under the seventh section of this act, Justices ai’e also authorized and required to take cognizance of any demand of the defendant, founded “upon,bond, note, penal or single bill, written obligation, book account or damages on assumption, against the plaintiff, which shall not exceed one hundred dollars,” and which shall be offered by the defendant as a set-off against the plaintiff’s demand. And it is thereby also declared, that if the defendant have-such a demand, but refuse or neglect to set it off, he shall be forever barred from recovering it.

The first error assigned is, that the plaintiff below entered a rule of arbitration before he filed a statement of his demand. ' .To this it may be answered, that the record of the Justice, of the proceedings had before him in the case, which he transmitted with the appeal to the Court of Common Pleas, shews that the plaintiff’s demand was a book 'account, amounting to nmety-eight dollars, which he; claimed to be due to him from the defendant. This statement, although not very explicit, as it dops not appear from it what the nature of the items charged in the account was, yet is nearly as satisfactory, and affords about as much information as a declaration in indebitatus assumpsit would do. Take, for instance, the count for money had and received; what information does it furnish of the nature and origin of the many claims that-may be given in evidence under it? A stranger to the transaction could not even form a conjecture, with any degree of certainty, of what" they might consist. The claim might be for money received by the defendant, upon sales made by him of the property of the plaintiff, consisting of horses, cows, sheep, swine or articles of merchandize to A. B. C. D. &c. or different sums of money received from each of these persons, which were owing to the plaintiff by them respectively. It is considered that this statement made by the Justice, would have been deemed sufficient, in case his judgment and proceeding had been brought .before the proper tribunal by writ of certiorari for revision, and may, therefore, be considered sufficient to supply the place of a statement, in the Court of Common Pleas, upon an appeal. Indeed it seems to be a rule of practice^ in many of the county courts within the state, and among the number, is said to prevail in Bradford county, into .which this cause was taken by appeal, to. consider and adopt the transcript , of the Justice, returned with the appeal, as the statement of the plaintiff’s cause of action in court. Beside,' it must be considered as a part of the proceedings in the cause; and the court would be bound to notice it, if the objections were made, so far as to prevent the plaintiff, by any new Statement .that he might be pleased to file)' from introducing a new cause of action,' different from the one certified and returned by the Justice. For all these reasons taken together, we think this assignment of erro'r cannot prevail.

The second, error is, that the transcript of the Justice does not shew any cause of action within his jurisdiction. This, from th’e answer given to the first error, must appear not to be tenable. We think that it does sufficiently appear.- Indeed, I cannot at this moment think of a claim, wh'ich.is properly the subject of a book account, that could not fall within: the jurisdiction, given to the justices of'the peace by the act alre'ady mentioned) provided it does not exceed in amount one'hundred dollars.

' The third and last error is,- that the Juátice and arbitrators refused to allow any part of defendant’s-set off, because the whole together amounted to more than one hundred dollars. Now by the express terms of the seventh section of the act already recited in part, the demand which the defendant before the Justice offered to set off against the demand of the plaintiff; must not exceed one hundred dollars; so that if the demand of the defendant below in this casé, which the arbitrators state, exceeded the amount of the plaintiff’s three hundred and thirty-two dollars, was entire in its nature, it was clearly without the jurisdiction of .the justice, and, as I shall shew, likewise of the arbitrators, it is evident from the spirit of this act of Assembly, as well as the express provision o fit, that the Legislature did not intend or think it adviseable, to give J uslices of the peace jurisd iction in any case, when the claim should, at the time of commencing the suit," exceed one hundred dollars. But if the.act had been silent in limiting the amount of the claim of the defendant, which he should be permitted to set-off against the plaintiff’s, demand before the justice, a reasonable construction of the act must have limited it to one hundred dollars, and likewise to claims.of the same nature with those for which plaintiffs are authorized to bring their suits before Justices of the peace* For it is impossible to conceive any reason, why the legislature should not pei-mit Justices to take cognizance of, .and pass judgment upon de-' mands of plaintiffs exceeding one hundred dollars, that does not apply at least with as much force to prevent their taking cognizance of claims of defendants, exceeding that sum, against the plaintiffs, when they are offered to he set off. It is perfectly clear and manifest, that the legislature did not intend to give justices, in the one "way or the .other, jurisdiction in cases where the demand exceeded one hundred dollars, unless by the consent of the parties, which is specially provided for in the fourteenth, section of the act. ' Hence I conclude, that the Justice from any thing that appears upon the record, would not have taken cognizance of, and allowed the set off that was claimed by the defendant before him.

For the same reasons I also think, that the arbitrators were precluded from investigating and deciding upon the defendant’s demand against the plaintiff,' before them. For although it is declared by the fourth section of the act, that when a suit is regularly brought from a-Justice of the Peace, by appeal from his judgment, to the county court of Common Pleas, and entered on the Prothonotary’s docket, that “it shall from thence take grade with, and be subject to the same rules as other actions, where the parties are considered to be in court,” yet this clause must receive such a construction as will render it consistent with the preceding parts of the same section, by which it is provided, that if the defendant before the Justice be the appellant, and shall succeed in procuring a reversal or an abatement of the amount of the judgment on the appeal, that he shall be entitled to recover from the plaintiff the costs of the appeal, with four dollars as a counsel fee, and fifty cents per day for every day that he shall attend upon such appeal; but to entitle the defendant to these costs, counsel fee and daily pay, he must produce no other evidence before the court on the trial of the appeal, than that which he exhibited before the Justice or referees, (if tried by referees, while pending before the Justice.) Now it is obvious, that the Legislature intended by this provision, on the one hand, to induce and encourage the defendant to bring forward all the testimony that he had of an admissible character, and intended to rely on in any event for his defence against the plaintiff, in order that there might be a full hearing of the whole case upon its merits, before the Justice, and at the same time, to afford the plaintiff an opportunity óf knowing the nature and the extent of the testimony which the defendant had to support his defence; and then upon the other hand again, to punish the plaintiff, if he should, after all this knowledge given to him, persist in demanding of the defendant more than should,ultimately be found to be due to him, by making him, not only pay the .costs df the appeal, but the counsel fee of four dollars, and the fifty cents per day to the defendant, for. attending upon the appeal. To carry, then, all these different provisions of the act into full effect, according to the true meaning and intention of the legislature, the parties must be bound to try the cause, after the appeal has been taken, upon the same principles, and subject to the same rules of evidence; the plaintiff being at liberty to make the same claim and the defendant the same defence and none other, than what ought or could have been lawfully made upon the trial before the Justice. It is well understood, and has been decided upon the construction ofithis act, that the plaintiff cannot recover in court on the appeal, upon a cause of action, that was not within the jurisdiction of the Justice of the Peace; and for the same reason must the defendant be restricted in the demands which' he shall set up by way of defence, and as a set-off. See Moore v. Waile, 1 Bin. 219. Owen v. Shelhamer, 3 Bin. 45. Wright v. Gay, 10 Serg. & Rawle 227. Laird v. McConachy, 3 Serg. & Rawle, 290, & Hinds v. Willis, 13 Serg. & Rawle. 213. If it were to be held otherwise, the plaintiff must necessarily be often mulked in costs after a recovery before the Justice, upon a demand, against which there was no defence that the Justice could take cognizance of, by the defendant’s appealing to court; and being permitted to set up a new defence, that, was not within the Justice’s-jurisdiction. This I conc.eive is prohibited by the act. And it appears t.o me that the privileges and the restrictions of the parties in this respect ought to be mutual and reciprocal. For commencing a suit before a Justice cannot be said t.o be altogether a matter of election or choice with the plaintiff; he is compelled to go there, as well as the defendant, or lose his claim to costs, in case he succeeds in his suit. If the legislature had not intended it to be so, they would and ought to have authorized a removal of the cause before trial from the J ustic.e to the Common Pleas, where the defendant claimed a set-off for a demand exceeding one hundred dollars. See Boon v. Boon, 17 Serg. & Rawle, 386.

It is possible that the plaintiff in error might have defeated the recovery of the plaintiff below, if the fact be, that his book-account, mentioned by the Justice of the Peace, and again by the arbitrators, which exceeded the amount of the plaintiff’s claim, three hundred and thirty-two dollars, consisted of a series of charges, founded upon as many substantial and independent contracts made between them. If such were the case, then .1 think that it was competent for the defendant, either before'the Justice, or afterwards upon the appeal, before the arbitrators, to have selected one or more of such charges, growing out of separate and distinct contracts, as would have come up to one hundred dollars in the aggregate, or to any less sum that he might have found sufficient to have met the whole of the plaintiff’s claim, and to have set them off ¿gainst his demand, after establishing, by due proof, that he was justly entitled to them. But whether his account was made up of charges originating in this way, does not appear from the return of the Justice; nor yet from the award of the arbitrators. This court cannot presume that it was so; .nor can we, as a court of error, enquire into facts and errors not appearing upon the face of the award of the arbitrators. See Harker v. Elliott, 7 Serg. & Rawle, 284. Thompson v. White, 4 Serg. & Rawle, 135. Commonwealth v. La Fit, a Serg. & Rawle, 106. The only remedy which a party can have for either errors in factor inlaw, committed by arbitrators appointed and properly organized under the compulsory arbitration law of 1810, and which do not appear upon the face of their award, is by appeal, as appears by the two last cases cited.

Judgment affirmed.


author: Per Curiam-

text:
    NAPLES against MINIER.
    The fact that there is a mortgage upon lands which have been levied on a fi fa. will not dispense with the necessity of holding an inquisition; and o. venditioni exponas without it is irregular.
    Error to Bradford county.
    The plaintiff in error was the plaintiff below, and sued out this writ of error to reverse the decision of the court of Common Pleas, setting aside a Bend. Expos, on the ground, that no inquisition had been previously held upon the fi. fa. upon which the land was levied. It appeared to the court, that there was a mortgage upon the land, to secure the payment of certain bonds at different periods, all of which were due. The counsel for the-plaintiff insisted, that the existence of this mortgage rendered the estate of the defendant so uncertain, as to dispense with the necessity of holding an inquisition; but the Court (Herrick, President,) being of a different opinion, the vend,, expos, was set asido. The same question was argued in this court by

      Kinney, for the plaintiff in error. ■
    The position which I take in this cause, is a general one. That a mortgage upon lands, in all cases where payment cam be enforced or sale made within seven years, will avoid the necessity of holding inquisitions for condemnation or extent of the said lands.
    The term, “reprises” in the 2nd Section of the JLct, 1705, Purd. Dig. Edition of 1824, seems not to be very well defined. But the judicial decisions in relation to it have given it a meaning, which sufficiently removes any ambiguity as to its definition". Any incumbrance upon lands levied, or any limitation, situation or condition, which renders the duration of the title or interest of a defendant uncertain, or which limits such interest to a term of time less than seven years, would be comprehended in the definition of the word “reprises” in the act of assembly.
    In the cage qf Howell y. Wpolfort, 2 Dal. 77, the court decided, that “on a fair construction of the act of Assembly, they did not think the legislature intended, that an estate for life should be delivered to the plaintiff, in satisfaction of his debt. The general interest, and of consequence, the septennial value, are so precarious that they could not have been in contemplation, in making a positive “provision, that the estate should be delivered until the plaintiff’s debt was paid” &c. And jn case of John Burd v. the Lessee of Dansdale, 2d Binn. 91. Chief Justice Tilghman in delivering the opinion of the court, says. “The only use of an inquisition, is to ascertain whether the rents and profits will discharge the judgment in seven j'ears; in which case,the land is not to be sold, but. delivered to the plaintiff till the judgment is satisfied. But whére the defendant has an uncertain interest, such as an estate for life, it is unknown whether it will last seven years.”
    Now, where a defendant has given a mortgage of his land, he has conveyed all his title thereto, to the mortgagee, only subject to a defeasance of the title so conveyed, on the performance of some condition by himself, .which condition may or may not be performed, and on his failure to fulfil the condition expressed in the mortgage, the mortgagee may bring an ejectment on the title conveyed to him, or have recourse to the proceedings pointed out by act of assembly, at- his election. Is not in such a case, the interest of the deféndant in the land mortgaged, uncertain? at least as uncertain asa life estate, or where the incumbrances by judgments are more than the premises will rent for in seven years? No one will pretend that there can be an extent oh an execution issued on a judgment on scire facias on mortgage.; So far from it, that a sale may be made on a levari facias, in the first instance, without a venditioni exponas; which can never be done of lands on a fi. fa. Consequently, a mortgage already due, or which may-become due in time to enable the mortgagee to obtain judgment on a sci. fa. and sale, or prosecute an ejectment within seven years, renders the estate so uncertain in the hands of the mortgagor, that there is no necessity of an inquisition on a fi. fa. levied on the same lands; boeause there cannot, by any legal possibility be an extent on a 'levari facias under the mortgage, which may before-closed, -and the lands sold, or obtained by ejectment within seven years. Uncértainty. of estate, being by the above mentioned decisions, as well as by asound and rational principle, an irresistable ground of condemnation of lands levied on by execution. It is no answer to say, that a mortgagee may or may not proceed to foreclose his mortgage within the seven years. For the same answer may as well apply to life estates, tenancies at will, or to the operations of judgment li.ens, other than that, on which the execution levied on the lands, has issued: and it is well established law and practice for the jury of inquisition, to take into consideration all existing judgments, either due or to become due, within the .seven years; and then to determine whether the profits of the land levied on, will pay all the judgments which they find to be liens thereon, within that time. If they adjudge that the profits will not so pay, then they will condemn the land for sale, though there is no certainty that any of the judgments will be proceeded upon for collection, besides that on which the execution levied, has issued; and though the latter would by no means be sufficient of itself to condemn the land for sale. But there is, I presume, no one who will pretend, that it is unnecessary to hold an inquisition on a fi. fa. issued on any one judgment, if the defendant had waived inquisition, and confessed condemnation for sale of the lands on another judgment. And yet the judgment creditor in the latter case may not proceed to collect his judgment in seven years. Seel Serg. fy Razóte, 100, per. Yeafes, J. Now I consider a mortgage of land as tantamount to a waiver of inquisition, because the effect is the same, in this, there can by no legal possibilitjr be an extent in either case. That a mortgage is comprehended in the term “reprises,” is decided in the case of Pulaski v. King 1 Yeafes 477. It seems to be thought by some, that the case, of Pulaski, v. King was unfavourable to the ground I take, inasmuch as it is to be inferred from the language of the court in that case, that the mortgage was to be regarded only in the same light that a judgment should be. But I can see no ground for such inference. The point was not expressly decided, nor does it appear by the case, that the question on the distinction of the operationbetween a mortgage or judgment to condemn land, was raised or considered.
    It has been doubted by some, whether the Supreme Court would take cognizance of the point now under consideration on writ of error. It is certainly a subject of much public'importance, and ought to be decided and settled by the Supreme Court. And if a question should arise, as to its being a legitimate subject of a writ of error,’ it strikes me, that it would be settled by the case of Miller’s adms. v. Milford, 2 Serg. ¿yRawle, 35. That was a case removed on error from the judgment of the Common Pleas, on a question of setting aside an execution.
   Per Curiam-

The Universality of the practice, ever since the act.of 1705, to require a condemnation of land levied on z. fieri facia's, though subject to mortgage, ought to be decisive of the question: In King v. Pulaski, 1 Yeates 477, it was held, that the word “reprises” in that Act, clearly includes mortgages; which would be preposterous had the legislature intended that the existence of a mortgage, should supercede the inquisition altogether. So far was it from being deemed to have that effect, that it was treated as being just.such a reprize as a judgment — another proof that a mortgage has been considered with us as but a species of incumbrance. In that case, as in this, all the instalments were due or to become due within the seven years; but though that would be material to a question, whether the mortgage were a reprize that might effect the estate of the tenant by extent, if it were pressed by scire facias, it would by no means affect the duration of the mortgagor ’s estate, as the right of the mortgagee to the possession, would depend on very different considerations. That, however, is not the sort of uncertainty of duration which dispenses with a condemnation; for it would obviously dispense with it whenever the land is unpatented, when quit-rents arc in arrears, or, in short, whenever a vendor has a right of entry for the breach of any condition whatever, a consequence which is well known not to follow. It is true that a condemnation is not necessary to a sale on a liberari facias; but that is because the legislature has thought proper to give an advantage to a mortgagee, which it has seen lit to give to no one else. It is not a little strange that a scruple should have been felt about this point, after -a practice of more than a century; or, indeed, that the point should have been made. We deem if a plain one; and feel no difficulty in deciding it.

Judgment affirmed.


text:
    BELLAS against EVANS.
    W died intestate, leaving Issue seven children; in a proceeding of the Orphans court by writ of partition and valuation, his real estate was valued at ciglu thousand nine hundred and seventy five pounds, twelve shillings and one penuy, and divided into seven parts of unequal value; the value of each heir was twelve hundred and eighty-two pounds four shillings and seven pence, and each heir took one of the parts at the valuation: — One of the allotments was composed of different tracts of land, upon each of which a separate value Was put by the inquest, and the whole was valued at two thousand and seventy-two pounds and was confirmed to Fein right of his wife, “on his giving a mortgage upon the lands, of which his allotment was composed, to secure to the other heirs seven hundred and eighty-nine pounds nineteen shillings and five pence, which was the differ-' ence in amount between his share and the value of the land taken by him.” Of this seven hundred and eighty-nine pounds nineteen shillings and five pence, EE, another of the heirs, whose allotment was of less value than her share, was entitled to one hundred and sixty-six pounds seventeen shillings and six pence. E never gave the mortgage which the Orphans’ Court, by their decree required; but after his death and that of his wife, a judgment was obtained against her administrators, upon which one of the tracts, which was embraced in the allotment decreed to E. and which was valued at one hundred seventy-six pounds, was sold by the sheriff and purchased by B. EE died, without having received the one hundred and sixty-six pounds seventeen shillings and six pence which was due to her by E. and her heirs brought an ejectment against B. for their interest in the tract of land purchased by him at the sheriff’s sale. Held, that E. not having given the mortgage, as was required by the decree of the Orphan’s Court, the heirs of EE. could maintain an ejectment to recover their interest. And the interest which the plaintiffs were entitled to recover, was with regard to the amount of their claim of one hundred and sixty-six pounds seventeen shillings and six pence, that proportion of the land which was equal to the proportion which its value bore to the whole value of the allotment.
    Error to the Common Pleas of Northumberland county.
    This was an action of ejectment for a tract of land, in which the heirs of Elizabeth Evans were plaintiffs, and Hugh Bellas Esq. was defendant in the court below. The facts of the case are so fully stated in the opinion of his Honor, who delivered that of the court, that they need not be repeated.

      Jtnthony and Merill for plaintiff in error.

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

Kennedy, J.

This was an action of ejectment, brought in the court of Common Pleas of Northumberland county, by the defendants in error, to recover, as they alleged, the possession of six seventh equal and undivided parts of two hundred and eighty-one acres of land. Both parties derived their claims to the”land in dispute from Jacob Wallace.

From the evidence, it appeared that Joseph Jacob Wallace died in 1795 intestate; seized in fee of a large real estate, having seven children his heirs, namely John L., Grace, intermarried with Evan R. Evans, Sarah intermarried with Daniel Smith, Thomas Gay nor, Elizabeth, intermarried afterwards with John Evans and Joseph J Wallace. In 1797, under a writ of partition and'valuation, issued out of the Orphans’ court of Northumberland county, a parlitilion and valuation were made of the estate. It was divided into seven allotments of unequal value, which were elected and to bo taken by the heirs respectively, at an Orphans’ Court holden in January, 1798. One allotment valued at twenty hundred and fifty-six pounds twelve shillings, was taken and decreed by the court to John L. upon his giving a mortgage on the lands contained in his allotment, to secure to Thomas, Gaynor, Elizabeth and Joseph J. the payment of their respective proportions of seven hundred and seventy-four pounds, seven shillings and five pence, within twelve months, in order to equalize the partition; a second allotment, valued at twenty-one hundred and sixty-five pounds,was taken byand decreed toDan. Smith in right of his wife, on his giving a mortgage on the lands of which his allotment consisted, to secure in the like manner to the same, for the like purpose, the payment of eight hundred and eighty-two pounds, nineteen shillings and five pence; a third allotment valued at two thousand and seventy-two pounds, was taken by and decreed to E.R. Evans, in right of his wife, on his giving a mortgage upon the lands of which his allotment was composed, to secure to the same, the payment in like manner, and for like purpose, of seven hundred and eighty-nine pounds, nineteen shillings and five pence: a fourth allotment, valued at six hundred and fifty-two pounds, was taken by and decreed to Thomas Wallace; a fifth valued at six hundred and twenty-seven pounds, was taken by and de.creed to Gaynor; a sixth, valued at seven hundred and sixty-five pounds, was taken and decreed to Elizabeth; and the seventh valued at six hundred and fifty three pounds, was taken byand decreed to Joseph. The valuation of the whole real estate amounted to eight thousand nine hundred and seventy five pounds, twelve shillings and one penny. The land in dispute was part of the allotment taken by and decreed to Evan R. Evans, upon his giving a mortgage as directed, and was valued by the inquest at one hundred and seventy-six pounds. Neither John L. Wallis, Daniel Smith, or Evan R. Evans, ever gave the mox-tgage rcquix’ed by the deci’ee of the Orphans’. Court; although it seemed to be admitted, that John L Wallace, and Daniel Smith had each paid the amount of money charged upon his allotment; and for which he was dii-ected by the Orphans’Court to give a xnoi'tgage. But it was alleged that EvanR. Evans has never paid any part of his; nor was any evidence given of his having done so. Each of the seven heirs took possession of his or her allotment. The one seventh part of the valuation of the real estate was twelve hundred and eighty-two pounds, four shillings and seven pence. The value of the allotment taken by Elizabeth, the mother of the plaintiff below, was seven hundred and sixty-five pounds,'falling short of her share of the real estate, five hundred and seventeen pounds, four shillings, and seven pence; of which one hundred and sixty-six pounds, seventeen shillings, and six pence, was to be paid by Evan 1Í. Evans, according to the decree of the Orphans’ Court. Elizabeth and her husband John Evans both died some years ago, leaving the defendants in error, their only children, and heirs at law. It was said by the counsel for the defendants in error, that this action was brought with a view to enforce the payment of the one hundred and sixty-six pounds, seventeen shillings, and six pence, with its interest; but it was. not pretended, that the executors or administrators of Elizabeth 'Wallace had any agency or concern in bringing or carrying it on.

The defendant below, claimed the land in dispute, under a sale made of it by the sheriff of Northumberland county, who had taken it in execution upon a judgment at the suit of Joseph J. Wallace, against the administrator of Grace Evans, who had been the wife of Evan R. Evans, and was one of the heirs before, named of the intestate Joseph Jacob Wallace. The plaintiff in the judgment was also another of the héirs, and was one of those to whom the Orphan’s Court decreed Evan R. Evans to give the mortgage. The judgment, it was said, was obtained by Joseph J. Wallace, for his proportion of that same money, but upon what principle, it is difficult even to conjecture.

On the trial in the Court below, the counsel for the plaintiffs there requested the court to instruct the jury, that “the plaintiffs were not in any worse situation than they would have been, had Evans given a mortgage, in pursuance of the decree of the Orphan’s Court. That the sum of one hundred and sixty-six pounds, seventeen shillings, and six pence, was a lien on the whole of the land assigned to Evans and his wife, except her one seventh part; and until the money was paid, the plaintiffs had a right to recover from the defendant, who was a stranger, and had no title whatever, except to the one seventh part aforesaid, that is say, they had a right to recover six sevenths of the land.”

Upon which the court told the jury, that the plaintiffs were not to be in a worse situation than they would have been if the mortgage had been given, in pursuance of the decree of the Orphans’ ■ Court. The sum of one hundred and sixty-six pounds, seventeen shillings, and six pence, was a lien upon the whole of the land adjudged to Evan R. Evans, and Grace his wife. If the mortgage had been given, it would have been given to Elizabeth Evans, and the other heirs, for the sum of seven hundred and eighty-nine pounds, nineteen shillings, and five pence; whereas the sum due the plaintiff was only one hundred and sixty-six pounds, seventeen-shillings, and six pence: by'which it would appear, that the sum of six hundred and twenty-three pounds, two shillings and eleven pence was due the other heirs, and equally a lien upon the land adjudged to Evan R. Evans, and if not paid, they could bring their ejectments. The plaintiffs were not entitled to six sevenths of the whole land. The other heirs would thus be excluded from their shares. The defendant was not to be considered as a stranger, but he represented Grace Wallace, one of the heirs of Joseph Jacob Wallace, deceased.”

The counsel, also, of the defendant below, prayed the court “to instruct the jury, that even if all the matters had. not been settled among the heirs of Joseph Jacob Wallace, the plaintiff could only recover one seventh of the premises, from which, however, was to. be taken so much, and such proportion, as Elizabeth Wallace’s share of land bears to her whole share of land and money. That is, seven hundred and sixty-five parts of twelve hundred and eighty-two parts are to be taken from her one seventh, leaving her five hundred and seventeen parts of twelve hundred and eighty-two parts of one seventh; equal to little less than one seventeenth of the whole, agreeably to a calculation now exhibited; and that the calculation was made upon just and legal principles: and therefore plaintiffs, at all events, could not recover more than one seventeenth.”'

The following is the calculation referred to:

“517-1283 of 1-7 equals 517-8974, or about 1-18 & a fraction,
517)8974(17 185-517, or about 1-17 & 1-3.
517
3804
3619
185
or about 1-18 & 1-3 of 1-18.”

In answer to which, the court told the jury, that they could not so instruct them, as they had already been instructed, that the plaintiffs were entitled to recover the same proportion in land, which they would have had a right to in money, if a mortgage had been given chargeable on the valuation of that particular tract of-land, according to the valuation of that tract.”

It is assigned for error, that the court were wrong in their answer to the request of the counsel for the plaintiffs below: and again, in not instructing the jury as requested by the counsel for the defendant below.

The court, in the body of their charge to the jury, told them, tiiat the plaintiffs below had a right to recover the same proportiori of the land in dispute, that Elizabeth Evans, (late Wallace) would have been entitled to recover in money, chargeable on this particular traet of land, according to its valuation, which she would have been entitled to receive, if Evan R. Evans had given amortgage. The jury, however, must make the calculation, and ascertain what proportion of the whole tract in dispute the plaintiffs are entitled to recover, according to the valuation of the tract.” After the charge of the court, and their answers to the points submitted by the counsel on both sides, the jury returned a verdict in favor of the plaintiffs below for four undivided nineteenth parts of the land; upon which the court rendered a judgment. ,

I am rather inclined to think, that I may not comprehend and understand fully, what was intended to be conveyed by the court in their direction to the jury. In that part of the charge which I have recited, although not very explicit, I would have thought, that the true rule for ascertaining the extent of the plaintiff’s right to the land in dispute, might have been discovered, perhaps, and drawn from it, had not the court, when they came to answer ’the points submitted by the counsel for the plaintiffs below, have said, that the plaintiffs were not in a worse situation than they would have been \í Evans given the mortgage: that the sum of one hundred and sixty-six pounds, seventeen shillings and six pence, was alien on the whole of the land adjudged to Evan R. Evans and Grace his wife* Put as three other'of the heirs would have been interested jointly with the mother of the plaintiffs, in the mortgage, had it been given, the plaintiffs could not recover six sevenths of the whole land, because that would exclude the other three. Now from this, it does appear to me, that the jury were left to infer, that the mother of the plaintiffs and the other three heirs, Thomas, Gaynor-, and Joseph, in whose favor the mortgage was directed to be given, were clearly entitled to the six sevenths of the land in dispute, and that they had only to ascertain what the plaintiff’s relative proportion of these six sevenths would amount to, as between these four heirs, and to return a verdict accordingly.

Without making an accurate calculation, I would suppose, that the plaintiff’s interest in the land, if settled by this rule, would come to about four nineteenths, as found by the jury. And as the court approved of the verdict, by entering judgment upon it, we may fairly conclude, that it was given by the jury in conformity to their direction. Thus understood, I think there was error in the-charge of the court. For, according to the decision of this court, in Smith and Scudder 11 Serg. & Rawle, 325, the decree of the’ Orphan’s Court vested no interest whatever in Evan R-. Evans, as he did not comply with the condition annexed to it, in giving the mortgage; and of course, if no interest vested in him, there-could be po divestiture of interest on the part of the others interested in the estate so decreed to him.

The parties, then, notwithstanding the decree of the Orphans’ Court,'must be considered as standing on the same ground, and relative situation to each other in regard to interest, in this part of the estate, that they would have done, had no such decree been made in favor of Evan R. Evans. Indeed, the late Chief Justice, who delivered the opinion of the court in Smith and Scudder, seems to have been of the opinion, that although Daniel Smith, who is the same already mentioned in this case, as having taken part of the estate in right of his wife, had taken possession of the allotment adjudged to him in her right, and had kept it, until his death,'yet, that he was never bound for the ¡payment of the money: and that it might therefore have been considered a devastavit in his executor, to have applied the assets of his estate to the payment of the money5>for which he was ordered to give a mortgage by the Orphans’ Court. See 11 Serg. <§■ Raiule, 327. If this be correct, the case can, in no wise, be placed upon the footing of a contract. According to the opinion thus expressed in Smith and Scudder, Evan R Evans, although he took possession of the allotment decreed to him, and kept it until his death, was yet under no obligation to pay the money, and of course could not have been compelled, in any way, to pay it. All, then, that was said by the court below,, about the plaintiff’s mother, or the plaintiffs themselves having alien upon the land for the payment of tbe money, is without any basis to rest on. For no mortgage ought to have been accepted of, under the decree of the Orphans’ Court, without a covenant contained in it for the payment of the money; or otherwise, a bond had also been given for the payment of it: because it cannot be supposed, that the Orphans’ Court, although it directed no other security to be given, intended to dispense with the personal security of the party, to whom it had decreed the land. If Evan R. Evans, then, was under no obligation to pay the money, according to the decree, he of course was not bound to give the mortgage as directed;, and the argument which has been raised in support of the judgment of the court below, as well as to vindicate the right of the plaintiff to recover to the full extent of six sevenths of the whole tract of land, entirely fails. This argument is, that as Evans was bound, either to have paid the monejr, or to have given the mortgage for the payment of it, equity would consider the latter as having been actually done, inasmuch as it ought to have been "done; and then the mortgagee, or those succeeding, to her rights, would be entitled, under the mortgage, to recover the possession of the land, to the full extent of what Evans could have mortgaged; which was at least all but his wife’s right, which is alleged, was_ only one seventh. But if the case were ever susceptible of this assumed transmutation, other obstacles might be thrown in the way of the plaintiff’s recovery, which, perhaps, could not be very easily surmounted. For a mortgage being considered in Pennsylvania a mere security for the payment of money, or performance of some other act, and as belonging to the personal representatives of the deceased mortgagee, and not his heirs at law: being assignable by his executors or administrators, and considered to all intents and purposes as being part of and belonging to his personal estate, and they held responsible for it as such, how could the heirs at low of the mortgagee take charge of it, and proceed upon it to enforce the payment of the money? For whether 'the proceeding be by scire facias, under an act of Assembly, or by action of ejectment, it can only be had for the purpose of compelling payment of the money or damages in certain cases; which when paid and satisfied with interest and costs, at any time before a sale shall be made of the mortgaged premises, all further proceedings, as well as all claim upon the part of the mortgagee to them, must cease and forever be at an end.

In the present case, it does not appear that there are either executors or administrators to receive the money, if that be the object of the suit; and it is difficult to conceive how the plaintiffs could have expected to maintain their action, upon the principle of considering the mortgage as actually given. Because, if that had been done, all the right which the mother of the plaintiffs below had to the land in question, would thereby have been converted from real into personal estate, and have rendered the taking out of letters of administration upon her estate necessary, in order to receive the money. And whether such be the actual state of the case, or it be only assumed for the purpose of advancing justice, still the consequences in law must be considered to be the same. If this were not. to be the case, the creditors of the mother of the plaintiffs below might be defrauded of their just claims against her estate.

The plaintiffs below must, then, be considered as prosecuting their right to the land specifically, upon the principle of its be-, ing real estate; and1 having become absolutely their property by descent, without any mixture of personalty about it. And this appears to me to be the only ground upon which they can maintain their action of ejectment, for any portion of the land.

The partition of the estate, and the decree of the Orphans’ Court upon it, so far as it was carried into execution, by a performance on the part of those of what they were thereby required to do, became final and conclusive upon all the heirs. It is said that Evan i?. Evans, was the only one of the seven, who ultimately failed to comply with the decree of the Orphans’ Court. If the other six complied, they thereby acquired air absolute title to their respectsvc allotments in severalty; and where the allotment taken by any one was equal to, or exceeded in value one seventh of the whole estate, his or her interest in the estate, which before extended throughout and to every part of it, became concentrated in his or her allotment so taken; and when not equal in value still it was a concentration of his or her interest pro tanto. And although Evan R. Evans, who had the power to exercise the right of election, on behalf of his wife Grace, as one of the heirs, and having done so> failed to comply with the terms upon which his allotment was decreed to him, yet the other six, having taken their allotments, which embraced all the remaining part of the estate, and having fulfilled the decree of the Orphans’ Court, thereby excluded the wife of Evan R. Evans from all claim and. interest in their allotments; and consequently by this exclusion, concentrated her claim to the whole estate, within the allotment taken by her husband, Evan R. Evans. This allotment, then, having been valued af two thousand and seventy-two pounds, and one seventh of' the whole estate, being twelve hundred and eighty-two pounds, four shillings and seven pence, Grace Evans, the wife of Evan R. Evans, became invested with the right in fee to twelve hundred and eighty-two and fifty-five two hundred and fortieth parts qf the two thousand and seventy-two parts, of which the allotment was; composed;'the residue of this allotment, consisting of seven hup-, tired and eighty-nine and one hundred and eighty-five two hundred and fortieth parts belonged to Thomas, Gaynor, Joseph,and the mother of the plaintiffs below, in their several proportions. The mother of the plaintiffs, under the decree of the Orphans’ Court, as we have seen, got, in the allotment which she took of-the estate, seven hundred and sixty-five parts of her twelve hundred and eigh-r ty-two and fifty-five two hundred and fortieths. From John L. Wallace, and Daniel Smith, she received three hundred and fifty pounds, seven shillings, and one penny, equal to three hundred and fifty and eighty-five two hundred and fortieth parts more, which added to the seven hundred and sixty-five parts contained in the allotment taken by her, make eleven ¡hundred and fifteen and eighty-five two hundred and fortieth parts of her twelve hundred and eighty-two and fifty-five two hundred and fortieths that she received in her her life time, leaving one hundred and sixty-six pounds, seventeen shillings and six pence, equal to ope hundred and sixty-six and two hundred and ten two hundred and fortieths, which remain in the allotment that was assigned to Evan R. Evans, and is an undivided interest in that allotment, extending alike throughout every part of it. Upon the plainest principles of justice, and even of equity, the mother could in her life time have claimed np. jnprfi than this.

The plaintiffs below, then, are entitled to recover-as much of the two hundred and eighty-one acres, the contents of Lhe tract of land in dispute, as will be equal to that relative proportion of the one hundred and six pounds, seventeen shillings and six pence, which the two hundred and eighty-one acres, valued at one hundred and seventy-six pounds ought to bear, as a part of the allotment valued at two thousand and seventy-two pounds, upon which tho one hundred and sixty-six pounds, seventeen shillings and six pence were charged. This may be ascertained by answering two questions according to the single rule of three. First, if two thousand and seventy-two pounds, the value of the whole allotment, must pay one hundred and'sixty-six pounds, seventeen shillings and six pence, what ought one hundred and seventy-six pounds, the value of two hundred and eighty-one acres of land, a part of the whole to pay? The answer to this will be found to be fourteen pounds and two shillings. And again, if one hundred and seventy-six pounds be equal to two hundred and eighty-one acres, how many acres will be equal to fourteen pounds and two shillings? A correct solution of this last question will give about twenty-two acres and eighty-two perches, equal to one undivided twelfth and forty-four 'one hundredth parts of the two hundred and eighty-one acres.

Judgment reversed and a venire de novo awarded.


author: Rodgers, J.

text:
    SNYDER against KUNKLEMAN, et als.

    The taking-of a note by a landlord from a tenant, for the amount of rent due, does not take away the right of distress. So a lessor, who has recovered a judgment in an action upon a covenant to pay rent, may, notwithstanding, distrain for the same rent in arrear.
    ■Whenever one execution creditor chooses to interfere with the action of another execution creditor’s writ, he does so at his peril.
    All executions issued or kept on foot, with intent to delay, hinder and defraud creditors, are avoided by the Statute 13 Elizabeth. If, therefore, one execution creditor, by management or arrangement, hinders the sale of persona! property levied, and upon which other executions are also levied, he thereby postpones his r'nrht to the money made from the sale of such property, and the subsequent execution creditor thus delayed shall be prefered.
    Error to Union County.
    This was an issue directed by the Court of Common Pleas, in which Henry W. Snyder was plaintiff, and Daniel Kunkleman, John Kitnkleman, John Snyder, Christian Baldy, and Christian Houtz, were defendants, to try whether the plaintiff was entitled to the money raised from the sale of the personal property of
      Daniel Kunkleman; and which of the above named defendants are entitled to the residue, if any.
    The facts were in substance these; Daniel Kunkleman was the tenant (AHenry W. Snyder. Kunkleman was indebted to Snyder for rent and grain sold to him, in a large sum of money; for which he gave his note, dated the 80th April, 1829, payable 1st May. Judgment was signed the 4th of May, 1829. The 2nd May, 1829, Kunkleman applied to Mr. Sterrett, for his professional services, complained of the conduct of Snyder, and said that he had other creditors, whom he liked better, and wished to know ho,w he could fix it, that they would bo paid. He was advised to give judgments, which his counsel thought were preferable to an assignment. This course, after some consultation, was adopted. Mr. Slerrett then ascertained the sum due each of the creditors, in some cases, from papers in the possession of the defendant; and in others from his recollection. He took the judgment notes to the office, had them entered, issued executions, and forthwith, had them placed in the hands of the sheriff. It is the impression of Mr: Sterrett, that he urged the Sheriff to proceed without delay. The creditors were not present when the arrangement was made, but were much pleased when afterwards told of it, at the next court. They gave him no directions about the sale; but some of them were anxious to have their money soon. Mr. Sterrett believed that at theMay court, they asked, if the grain should be sold immediately: they thought the grain would sell better about harvest. Mr. Sterrett said, they would not be injured by a short delay: that it was sufficient, if the sheriff had the money at the September Term. After the executions wrere in the hands of the sheriff, Snyder also issued an execution, which came to his hands, the 7th May, 1829, and on which he was required to proceed. The sheriff, who was examined as a witness, says, that he received the first four executions from Mr. Sterrett, on the 2nd May, 1829. That he ordered him to make a levy, which he did, on the 5th May, on four horses, with geers, eight acres of wheat in the ground, on H. Snyder’s land, a four horse wagon and bed, two distillery kettles, and all the apparatus, one stove with pipes, one corner.cup-board, and six chairs, one looking glass, two saddles, and one large iron kettle. After the levy was made, he told the defendant that if he would give him a bond, with sufficient security, he vfmuld let the property be a while. He thought, as he said, ¿he plaintiffs would bail him. And accordingly, the creditors, viz. John Kunkleman, John Snyder, and Christian Houtz, entered in to a bond to the sheriff, with Daniel Kunkleman, the fifteenth May, conditioned to deliver the property on demand. After he was thus secured, the. sheriff thought he need not sell, as he was himself safe, having the plaintiffs for bail, although repeatedly urg-' ed by Snyder to sell. The Sheriff received Snyder’s fi, fa. the the 7th May, on which he made a levy, subject to prior executions, Snyder wished to have the property sold immediately. The sheriff said the other creditors had given him a bond, and that he thought the grain would sell better towards harvest. Snyder appeared dissatisfied, and wished an immediate: sale. The sheriff told him he was secured, and that he did not care much what he said, the other creditors did not wish him to sell. This was before the May Court.
    At the May Term, the 18th of May, Snyder having obtained a rule to shew cause why the.judgments should not be opened, the parties made the following agreement:
    ‘ ‘Judgments and executions to remain as they are, and the amount not to be contested either by JohnKunkleman, Christian Houtz, Christian Baldy,John Snyder, or H. TV. Snyder. Daniel Kunkle man to have the right of contesting II. TV. Snyder’s judgment, and shewing that it was given for more than was due if he sees proper. Defendant’s property to be sold forthwith, and the monejr brought into .Court, where each plaintiff may claim the money, and the respective rights of each shall be determined by due course of law, under the direction of the court. May 25, 1829.”
    After the agreement, Snyder repeatedly called on the sheriff to proceed; but without success. He wrote to him to the same effect, and referred to the agreement, which required an immediate sale. The sheriff then wrote to the other creditors, who told him not to proceed immediately. The sheriff said the grain would bring a better price about harvest; but that he would do as they pleased, either sell or stay the proceedings, as they desired. lie said he would have sold, if they had told him lo do so. He thought, they told him they would let him know when they wanted the property sold: When he told them that Snyder was urging him, they replied, he had no right to the property; that they had secured him and would keep him clear. The property was sold' the 3d July, 1829, for five hundred and forty-four dollars and thirty-cents, which was brought into court for distribution. Snyder issued a ca. sa. against Kunkleman, who, on the 19th December, 1S29, was discharged.
    The jury under the direction of the Court found a verdict for the defendants; and the plaintiff having excepted to the opinion of the Court, now assigned the same for error.

      Bellas and Lashells contended, that the conduct of the defendants was a legal fraud, such as wilhpostpone their right to the proceeds of the sale; and cited 1 Rawle 366. 8 Serg. fy Rawle, 444. 11 Johns. Rep. 110. 3 Wash. C. C. R. 60. 17 Johns.. Rep. 274. 8 Johns. Rep. 20. 1 Salk. 320. 12 Serg. Rawle, 41. 13
      Serg. Sf Rawle, 345. 8 Serg. fy Rawle, 510. 14 Serg. 8¡- Rawle, 214. 17 Serg. <f* Rawle, 251. 1 Penn. Rep. 57. 2 Rawle, 282.

      Greenovgh, contra.
    Contended, that whether there was fraud or not, was a matter of fact; and was properly submitted to the jury and passed upon by them in favour of the defendants.
   The opinion of the Court Was delivered by

Rodgers, J.

In a manuscript case, in the Common Pleas of Philadelphia, it was decided, that notwithstanding a landlord has obtained judgment before a justice, for a sum less than twenty dollars, and special bail has been entered for a stay of execution, he may legally distrain upon the tenant for the same rent for which judgment was entered. So a recovery on a covenant for the payment of rent, is not, without actual satisfaction, an extinguishment of the rent; and the lessor may, notwithstanding such recovery, distrain for the rent in arrear. Chipman v. Martin, 13 John. Rep. 240. The judgment can only be considered as additional security, and not as a satisfaction for the rent; nor does it alter the case, that the plaintiff has issued a.Ji. fa. or a ca. sa.; still the landlord has not received satisfaction.

The rent, notwithstanding, remains due, and in arrear. And in Banthan v. Smith, 2 Bin. 153, it is ruled, that a judgment without satisfaction works no extinguishment of the rent. The landlord has concurrent remedies which he has a right to pursue, until he obtains actual satisfaction for the rent in arrear. The note which Kunkleman gave was partly for rent, and partly for grain; and it behooves Snyder to shew, on the trial, what part was for rent, and what for grain sold to Kunkleman. For the amount of rent due, he has a right to satisfaction to the extent of the money raised by the sale of the grain. The grain was on the demised premises, and as such, was subject to distress; for although the lien had expired, yet, inasmuch as it had not been removed from the premises, it is liable for the rent. The right to distrain is secured by the fourteenth section of the actof the 21st March, 1772.

The statute of 13 Elizabeth, avoids all executions issued or kept on foot with intent to delay, hinder, and defraud creditors*. It is difficult to doubt, that here there was management between certain creditors and the sheriff, to favour Kunkleman, at the expense of Snyder. The conduct of the defendant and the other parties to this transaction cannot be explained on any other supposition. The judgments are entered, and exeentions issued, in the absence of the creditors, with an avowed intention of defeating an execution which Snyder was about to issue. Immediately after, we find the plaintiffs in the executions, (as the sheriff supposed they would,) giving bond to the sheriff for the delivery of the goods on demand, with the manifest intent, that the defendant should retain the possession of the goods; and this, notwithstanding the urgent requests of Snyder to the sheriff, that he would proceed to sell. The parties afterwards agree that the sheriff shall proceed forthwith and sell. Notwithstanding this, the sheriff, at the instance at least of some of the creditors, refuses to sell, although repeatedly urged by parol and in writing by Snyder. He is insultingly told, that they do not care what he said, that, he had no right to the property, that the sheriff was safe, and this he seems to have thought a good reason for-a shameful violation of duty. The only pretence for this is, that they supposed the grain would sell better about harvest. But this was a shallow pretext, as is evident from the fact, that the grain constituted but a small portion of the property under execution. Whenever one creditor chooses to interfere with the action of another creditor’s writ, he does so at his peril. What right have those creditors to interpose between Snyder and the sheriff, in fraud of their own agreement. The sheriff says he acted under their direction. If they had ordered him to sell, he would have done so. However improper the conduct of the sheriff, yet the creditors are equally in fault. This presents the case not only of a violation of the statute of Elizabeth, but of their own agreement, and with what motive, except to favour Kunkleman and delay Snyder, it is difficult to imagine.

The testimony leaves it in doubt, whether all the creditors were engaged in the combination against Snyder. This is a matter which must be submitted to the jury. We are of the opinion, that such of the creditors, who were consenting to the conduct of the sheriff in delaying the sale, are postponed. We do not put the case on the ground of actual fraud; it is a fraud in law; and so the jury should have been instructed. Their conduct is irreconcileable with good faith. On the whole case, we are of the opinion,these creditors should be postponed.

Judgment reversed and a venire de novo awarded.


text:
    LONGAFELT against BARTSHER.
    A defendant cannot set-off a debt due to any one but himself; set-off can, b,e made , only by and between the parties. '
    Error to Northumberland county.
    This was an action of assumpsit, in which Frederick Longafelt was plaintiff, and the e'xecutórs of Henry JBartsher were defendants, brought to recover a reasonable compensation,fo¡r the us.e of a house and barn and thirty acres of land for three years.' Previously to the origin of the present alleged cause of action, a settlement was made between Longafelt and JBártsher, in which a balance was found to be due to Bartsher;; for this balance, b,y some arrangement between them, Christian Light gave Bartsher his, note. Subsequently to the origin of the present alleged cause of action, Light was sued by Bartsher for the amount of the said note, and paid the judgment, and then sued Longafelt for the amount thus paid for him, and recovered the money. ’’ It was con-:' tended by the defendant in this suit, that in those suits the present claim of the plaintiff should have been aet-o,ff. On this subject the court below thus instructed the, jury; . ■
    •‘The defendant contends, that subsequently to, the plain tiff’s, leaving the premises, a settlement was made between the plaintiff and Henry Bartsher; that the settlement was made by Christian Light, -who gave his note for the balance due to, Henry B.artsher, arid that this note wa.s paid and’ the money recovered of' (Christian Light, after which C. Light brought a suit against F. Longafelt the plaintiff, for the recovery of the money'he had paid for him, and during all these proceedings, the plaintiff never brought in this demand. If the plaintiff had a full knowledge bfthese proceedings, particularly of the settlement made by C. Light for him with H■ Bartsher, and Light having afterwards been sued for the money, and being obliged to pay it, and never brought forward the present,demand against H. Bartsher, he would be barred from the recovery by the act of Assembly; but if he did not know of the settlement of C. Light for. him with H>. Bartsher, and C. Light’s giving his note, he would not-be barred.”
    The opinion thus delivered was assigned for error.

      Bellas-im plaintiff in error.

      Grenough for defendant in error.
   Per Curiam.

When Light gave Bartsher his note for Longafelf’s debt, he made it his own, and could not, in the action on the note, have set-off a debt due to any one but himself. Set-off can be made only by and between the parties; and Longafelt was a party neither at law nor in equity. As> then, neither Longafelt nor Light could have set-off the subject matter of this action, the former is nqt tq be barred for having left undone what the law would nqt have permitted him tq do. There is error, therefore, in the secqnd, hut nqt in the first point.

Judgment reversed and a venife de novo awarded.


text:
    BARTHOLEMEW against JUDYKUNST.
    though the court might not be disposed to grant a new trial, because the verdict was'against the weight of evidenpe, ypt they will do so, when it is in accordance with the inclination of the judge who tried the pause.
    Appeal frqm the Circuit Gqurt of Ly corning county, held by Justice Kennedy.

    This was an actiqn on the case by Edward and John Bartholomew., against Charles Gudykunst, for falsely representing the power and capacity of a stream of water, forge and grist-mill, rented by the defendant to the plaintiffs. The jury found a verdict for the plaintiffs fqr twq hundred and seventy dollars, which the defendant moved to set aside, on the grqund, that it was against the-weight of 'evidence. The motiqn having bepn over-ruled, he appealed.

      Ellis and Arm,stro,ng for appellant^.

      Anthony and Campbell, contra.

   Per Curiam.

The verdict appears to us tq be greatly against the weight of the evidence; and thqugh we might not be disposed to-grant a new trial for that cause alone, yet in accordance with the inclination of the judge whq tried the cause, we think it ought to be sent to anqthpr jury.

judgment reversed and a nevy trial awarded.


text:
    APP against CORYELL.
    Money staked «pon a hone-race may.be recovered by the bettor, either from the winner or the stake holder.
    Where a sum of njoijey is raised by the contribution of several persons, to be bet u pon a hórse race, and the same is deposited in the hands of the stake-holder by one of the contributors; in an action again.lt such stake-holder, to recover back the money, by the individual who deposited it, it was held, that he was entitled to recover only that .part of the stake which he contributed, and not the whole.
    En such action against the stake-holder it is competent for him to give evidence, that part of the money staked was counterfeit, although it be not produced upon the trial.
    Error to the Common Please of ■ Union county.
    ' This action was brought by'Charles Coryell against Matthias J Jipp, to recover one hundred and fifty dollars which was deposited in the hands of o.ipp■, by the plaintiff, as a wager upon a horse-race, made between Coryell and Streetor. The race was run and the wager lost by Coryell, who immediately gave notice to ¿Lpp not to give up the money. It was in evidence that the money staked by Coryell wa.s rpade up by several persons, each of them bqd an interest in the race, tq the amount- cqntributed by him. The defendant also offered tq prove, that ten dollars of the mqnny deposited with him by thq plaintiff was counterfeit: the court decided, that if the notes alleged to be counterfeit were produced by the defendant, the evidence was qdmissible; otherwise it vyas not. The nqtes were not prqduced, and the.evidence was Rejected, to which opinion the defendant excepted. The defendant had not paid over the money to the winner, but had it when the suit was brought. The plaintiff made no demand before suit brought. • '
    Three pqints were made by the defendant’s counsel, upon which fhe qqurt was requested to charge the jury; the substance of which werq, that underour acts of assembly, on tlqe subject of horse racing,.there can be no recovery'against the stake-holder. 2. That the plaintiff, if entitled to recover at all, can only recover tl;e qmoqnt actually cqntributed by him to tlqe wager. 3. That a demand, previously ‡6 the institution of the suit, is essential to the plaintiff’s right to recover. All these points were answered in the negative; and were the subject of discussion in this court; in the course of which the defendant’s counsel offered to release ten dollars^f the verdict and judgment, the amount which it wasqlleged vyas received in counterfeit money.

      Mellas, for plaintiff in error,

      Las.hells for defendant in error.
   Per Curiam.

The court very properly directed, that mqney staked may be recovered, either from the winner or the stakeholder; but on two of the remaining points, the charge was either calculated to mislead, or positively erroneous. The judge was requested to charge,' that the plaintiff could recover no part of the money that was not his own; but directed, that he could recover the money he staked, and deposited as his bet, and that it was of no consequence from whom he had obtained it, if it were his bet or wager. By this, the defendant’s prayer, which was amaterial one, was evaded. The contract being void, the money could be recovered only on the promise implied from the receipt of it to the plaintiff’s use, which,in this respect, is determined by the nature of the consideration. The promise, in fact, arises out of, and is guided by the consideration, which is the receipt of the money; as was held in Boggs v. Curtin 10 Serg. & Rawle, 213. No money, however, is received to a man’s use but his own: consequently the law implies no promise to any one but the owner, it was not sufficient, therefore, to entitle the plaintiff to recover the whole, that he had actually staked or deposited the whole as his bet, if it were not so in fact; for if there were originally a partnership, being illegal, it would go for nothing, and each of the parties could recover only on his original right of property, and consequently for himselL As to the plaintiff being bound to take any particular money in satisfaction, after having recovered, we are at a loss for an authority for that, or for any principle on which the charge as regards that particular or the rejection of the evidence, to prove that a part of the money staked was counterfeit, can be supported, The refusal to produce the challenged notes, was but a circumstance, though a strong one, to rebut the force of the offered evidence, not to exclude it. There was positive evidence, also, of the plaintiff’s own declarations, that John M. Clay, a witness produced by him, was interested, which does not seem to have been encountered, much less overthrown, by the evidence on which the court relied for a removal of the objection.

Judgment reversed and a venire de novo awarded.