text:
    Downer v. Downer.
    Where land was devised charged with the payment of a legacy, and it was accepted by the devisee under proceedings in partition prior to the act of 1840, but the valuation had not been paid, the legatees may proceed in the Orphans’ Court for the recovery of their legacies since that act.
    Where the legacies are directed to be paid to the executors, for the use of the legatees, and they are dead, the legatees may proceed without raising an administration de bonis non.

    The petition should not be dismissed for misjoinder of a party plaintiif.

      Appeal from the Orphans’ Court of Fayette.
    Downer devised certain land to the defendant, “ provided that he pay to my executors, for the benefit of the legatees, hereinafter mentioned, $500.” The petition of the legatees and one H. Downer, prayed a decree for payment of the legacy. The defendant’s answer set up, that H. Downer was not a party in interest, and that the executors of the testator were dead, and administration had not been taken out, and prayed the bill might be dismissed on these grounds. Defendant further denied that he had accepted the land under the will, but on the contrary, averred that in 1834, he had presented a petition to the Orphans’ Court for a partition, under which he had taken the land at the appraisement, and that he had entered into recognisances and paid their shares of the valuation to some of the legatees, and was ready to pay the others.
    The replication averred that the complainants had not been paid any part of their legacies, and the court dismissed the petition.
    Sowell, for appellant.

      Dawson and Veech, contó.

      Oct. 28.
   Rogers, J.

In Downer v. Downer, 9 W. 63, the rights of the parties in this controversy, under the will of their father, were investigated and decided, and the remedy of the legatees and beneficiaries under the will, clearly defined. It was the opinion of the court then, and we see no reason to alter it now, that the remedy was in the Orphans’ Court, under the act of the 24th February, 1834. That the will was proved, before the passage of that act, can make no difference, as the case, notwithstanding, comes as well within the words as the spirit of the act. Rut admitting the jurisdiction of the court, exception is taken to the form of petition. It is said that Hiram Downer is a volunteer, having no interest in the premises. But an Orphans’ Court, acting on the principles of a Court of Chancery, will disregard form by striking out parties and adding to the number, if necessary, to reach the justice of the case. The same observation will apply to the second objection; but we are further of opinion that the answer to, the respondent’s' prayer, that the petition may be dismissed for want of sufficient parties, is conclusive. The beneficiaries are the proper parties to the proceedings, and we see no reason for saying an administrator de bonis non is required for the purposes of this suit. There is no interest of the estate involved in the controversy which requires his aid. And this seems to have been the opinion of the Orphans’ Court, for the petition was dismissed, because the court supposed the case was covered by the 3d section of the act of the 13th April, 1840. That act provides that all proceedings heretofore had in the Orphans’ Courts' of this commonwealth, for the partition of any testator’s estate or estates, wherein partition had been made, or the property taken at the valuation, and sold and conveyed under the order of such court, by executors or administrators, and the proceeds of such sale distributed according to the will of the testator, shall be considered and taken to be as valid and effectual as if such courts had had jurisdiction of the samei The mischief intended to be remedied is clearly-indicated in the act itself. Many persons, under the erroneous supposition that the Orphans’ Court had jurisdiction in cases of testacy as well as intestacy, had taken property at the valuation and sale, under the orders of that court,-the proceeds of which had been distributed according to the will of the testator. It was thought just, in such cases, that the sale should be considered and taken as valid and effectual as if the court had jurisdiction. The objection is alone to the forum, and confined within these limits it is a legitimate and wholesome exercise of legislative authority. But it would be a libel on their wisdom and justice to impute to them the intention of sanctioning the wrong of depriving innocent persons of property without giving them an opportunity of being heard. But this would be the inevitable effect of the decisions of the Orphans’ Court. At the September Term, 1839, it was ruled that the petitioners were entitled to their legacies, to be paid out of the land. The devisees had refused to accept, and the remedy was pointed out, but by the decree of the court, under the construction given to the act, which was intended for a different purpose, they are deprived of all remedy whatever. It is impossible. to make me believe the legislature had the intention to take one man’s property and give it to another.

Decree of the court dismissing the petition is reversed, and a procedendo awarded.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    Springer v. Brown.
    Where a fieri facias was tested before the death of one of the defendants, an alias and a venditioni exponas issued against him without noticing his representatives, were regular prior to the act of 1834.
    It is no objection to the title of a sheriff’s vendee of realty under a judgment against two that one of them was a surety, and had personal property which was not levied on; nor that two writs of venditioni exponas issued to the same term, where one inquisition was set aside and a new one held.
    In error from the Common Pleas of Fayette.
    The plaintiffs in this ejectment were the heirs of Josiah Springer, to whom the lands in question had been devised in fee by Dennis Springer. The defendant held under a sheriff’s sale, and the question was, whether that was irregular ? In 1820, a judgment was recovered by one Dawson against John and Dennis Springer. In 1822, a fi. fa. issued, and was stayed. To June T. 1828, an al. fi. fa. issued, tested March 8th; on which a levy on the land was returned. John Springer waived a condemnation, and the land of Dennis was condemned on the 15th August, 1826; but the inquest was set aside. A new condemnation was had on the 14th August. A ven. ex. tested June 17th, issued to October, 1826; which was returned not sold, because the inquest was set aside. Another ven. ex. issued to the same term, tested the same day with the last writ, and the property was sold and conveyed by the sheriff to defendant.
    It was in evidence that Dennis Springer died on the 5th of April, 1823; and the plaintiffs offered to prove that he was but a surety of John Springer, who had personal property nearly sufficient to satisfy the judgment. The plaintiffs also offered to show, by the docket, that the al. fi. fa. issued after the death of Dennis Springer; but the court rejected the evidence, and the plaintiffs proved the fact by other evidence. The court instructed the jury that the plaintiff in the action was not bound to proceed against John Springer, in the first instance, and that the fact that he owned personal property was immaterial; the levy not having been objected to at the time. That the plaintiff was not bound to revive the judgment against the representatives of Dennis, since thefi.fa. was tested before his death; that neither the al.fi. fa. nor the ven. ex., though tested after his death, was void as to him, and that there was no irregularity in issuing two ven. ex. to the same term, where one was avoided by the setting aside of the inquest.

      The rejection of the evidence, and the charge, were assigned for error.

      Veech, for plaintiff in error. •

      Howell and Hwing, contó.

      Nov. 16.
   Gibson, C. J.

This ejectment is brought against a

purchaser at sheriff’s sale by the children of a devisee of the debtor, who attempt to affect him collaterally, with error in awarding execution; but if the award of it was simply erroneous, and not void, it cannot prejudice the title. Such is the principle of Allison v. Rankin, 7 S. & R. 269, in which an error in entering judgment on a mortgage, after a single nihil, was not allowed to destroy the sheriff’s deed, and such the principle of Speer v. Sample, 4 Watts, 367 — a case much nearer the present — in which it was held that though the writ had been sued out after the death, the execution was voidable, not void; and that the sale was consequently valid. That the decision was founded on the soundest principles of the common law, was shown by Mr. Justice Kennedy, on reason and authority to which it is unnecessary to recur. It does not indeed appear in the report of the case, that the teste of the fieri facias was subsequent to the death; but as the common law carries back an execution by relation, to the first day of the preceding term, if it had not been so, there would have been no discrepance or room for a question. That case, therefore, is stronger than this. True, th.e venditioni exponas is tested of a term subsequent to the death; but a scire facias is not necessary to found it, because, as execution when commenced is entire, neither the debtor nor his personal representative is entitled to a day in court in the progress of it. That writ being a means to compel the sheriff to sell goods returned unsold for want of buyers, is a subordinate part of the proceeding, and one which is not always employed; for where a new sheriff has been inducted, the practice in the King’s Bench, as it formerly was here, is to proceed by distringas, commanding him to distrain the old one till he sell and have the money in court. Of course, when compulsion is necessary, the creditor has to do with the officer, and not with the debtor’s personal representative, who can have nothing to allege which might not have been alleged by the debtor himself. And it is unnecessary to bring the name of the executor or administrator on the record for the sake of congruity; for where one of two parties has died, the writ must be in the name of both to make it agree with the judgment: Bing, on Execution, 136. In Meriton v. Stevens, Willes’ Rep. 280, it was held that a sheriff who had levied before the allowance of a writ of error, was bound to proceed, because an execution, being an entire thing, could not be divided. Our statutory venditioni exponas for the sale of land, is borrowed from the common-law writ for the sale of chattels; and is prescribed only because the sheriff, being bound to return an inquisition, cannot sell on the fieri faeias without a waiver of it, so that it is equally an ancillary part of the machinery of execution. When that is put in motion, it is unnecessary to bring in either the debtor or his representative, for when a lien has been established either by the judgment or an award of execution, the presumption is against satisfaction of it in the first instance.. Even where an opposite presumption has arisen from the lapse of a year and a day, it appears from Patrick v. Johnson, 3 Lev. 404, and Howard v. Pitt, 1 Salk. 261, overruling Russell’s case, 4 Leo, 197, that an execution sued out without, a scire facias, is not void, but voidable. It is said in Bing, on Executions, 135, that a scire facias is to precede an execution, only when it is necessary to prevent surprise; for that where the defendant in the judgment would be without defence, there is no reason to suppose his personal representative would be in a better condition. But the award of execution ‘in this case, being prior to the statute of 1834, was not forbidden, and was neither erroneous nor irregular.

Another point of defence, was, that the death of the judgment-debtor, who was a surety, made it incumbent on the judgment-creditor to resort to the property of the principal in the first place. What had the purchaser to do with that ? If the levy was illegal, it was the business of the representatives of the surety to have it set aside; but having submitted to it then, it is too late to question the legality of it now. As to the objection that two writs of execution were sued out on the same judgment to the same term, it is enough to say that when the inquisition to found the first of them was set aside, the writ fell with it; and that the award of the second, was, at the worst, erroneous — perhaps not that, for if the first was out of the way, the second was good; if not, the first would support the sale. The exceptions to evidence also were unfounded. The plaintiffs offered to prove matters which, under the leading principle of the case, could not have availed the plaintiffs, and of which the rejection could not prejudice them.

Judgment affirmed.


author: Per Curiam.

text:
    Oliphant v. Frost.
    Where the Bond of a purchaser at sheriff’s sale has Been deposited in court By consent, in lieu of the purchase-money, it does not carry interest.
    In errpr from the Common Pleas of Fayette.
    It appeared that Oliphant, having purchased certain real estate at sheriff’s sale, executed his bond, with warrant of attorney, to one Frost, conditioned to pay the purchase-money. By consent of creditors, the sheriff deposited the bond in court, arid Frost assigned it to the prothonotary. .On the application 'of the creditors, the court ordered judgment to be entered and execution to issue for the debt secured thereby, with interest from its date. This, and the issuing execution in the name of Frost, were assigned for error.

      Patterson, for plaintiff in error.

      Veech, contó.
   Per Curiam.

By agreement of the creditors, the bond was paid into court as cash; and a fund in court does not bear interest. If the obligor was ready with the money when called for, it was all they could ask. The purchase-money was not invested for accumulation, and they knew it. The security was taken as an equivalent for the thing secured; and having the benefit of it, they cannot complain that the shadow is not greater than the substance. But they had a right to have the bond entered up; and whether it was at the suit of the proper plaintiff, cannot be told, as the bond is not part of the record. A transfer to a legal assignee could be pleaded as a defence on the merits, which could be attained only by opening the judgment.- But the execution for interest is erroneous.

Execution set aside.


text:
    Smith v. Black.
    A citation to executors is matter of rigBt, and the court cannot dismiss tffe petition Because they know that tBe matter has already Been determined, unless it appear on the record.
    Appeal from the Orphans’ Court of "Washington.
    The legatees of Black filed a petition against- his executors, among other things charging that they were wasting the assets, and praying a decree for payment of the legacies. The court dismissed the petition, because they had no jurisdiction as to part of the matters stated, and because the rest of petition had already been passed upon.

      Alden, for appellants.
   Per Curiam.

The subject of the appellant’s petition was clearly within the jurisdiction of the court, and it ought to have been entertained. At least a part of the matter charged was proper to be answered, and only by the executors after they had been brought in. To the rest, they might perhaps have demurred. But the court ought not to have arrested the proceeding in the first instance; for the citation was as much a matter of right as a subpoena in chancery. Besides, the court could not be judicially informed, in the first instance, that a part of the matter had already been adjudicated. A judge could not quash an original writ, because he might know that the matter had been previously tried, instead of leaving the defendant to plead it. We know nothing of previous litigation between the parties. We have no more before us than a petition for a citation, with a rejection of it for no apparent cause; and we must not lose sight of the leading principles of regular practice. The record is remitted, to enable the court to get at the merits in the regular way.

Decree reversed, and procedendo, with citation, awarded.


author: Burnside, J.

text:
    Defrance v. Austin.
    The law does not imply a contract to pay for services rendered hy an infant who is permitted whilst out of place to reside with his uncle, and during such time is provided with food and clothing, and who works in the same way as the children of the family.
    In error from the Common Pleas of Mercer.
    The evidence was not on the record, but a statement of the case will be found in the opinion of this court.

      Stephenson, for plaintiff in error.

      Stewart, contrS.
   Burnside, J.

Three errors have been assigned in this case to the defendant’s points and to the opinion of the court. They run into each other. The opinion of this court being that the plaintiff had no legal right to recover, they will be considered together.

The action was case, for work, labour, and services. The defendant was the uncle of the plaintiff, and the evidence showed that in 1888, the plaintiff, then a boy of fourteen, came to his uncle’s. His uncle told him he had a large family, and did not want him, but he might stay until his brother James came home. The boy was an orphan. James put him to a Mr. Woods, where he remained about three months, and returned, destitute of clothing. Mrs. Defrance, who was a sister of his father, made clothing for him. Defrance told him he had been turned off from everyplace, and that he might remain until he got a place. The second winter, his uncle urged him to go to a trade. He declined going — said he wanted more schooling. He was sick part of the time, and was fed, clothed, and sent to school with the other children of the family; worked when they worked, and played when they played; and the last year received a new suit. He was stout, of his age; and much evidence was given of the supposed value of his services, beyond his boarding, clothing, and schooling. The court were requested to charge the jury, that under the evidence the plaintiff could not recover. But the court left it to the jury to determine the value of his labour, beyond his boarding, schooling, and clothing, and that amount they might find for the plaintiff,' upon an implied contract, although they were satisfied that the parties had no agreement. To this instruction, we cannot accede. It was ruled, in Swires v. Parsons, 5 W. & S. 357, that the performance of labour generally, by one for another, raises an implied assumpsit that will be compensated; but this implication may be rebutted by proof of circumstances showing such a relation between the parties as repels the idea of contract. There, the plaintiff lived many years with the intestate, and kept his house and performed the functions and duties of a wife. There is not a single fact in this case, that does not tend to rebut the implication of an agreement, or promise, or engagement between the parties. The evidence is, that the plaintiff was received with reluctance into the family, as an unfortunate relation, treated as the children of the family, advised to go to a trade, his education attended to, and his wants regarded. I am unable to discover a spark of evidence of contract, or that he remained longer on the benevolence of his uncle than heyhose; all the evidence showing his uncle would have been glad if he had left him the moment he could have got a place, either as a labourer or an apprentice. This action is an after-thought of the plaintiff; no doubt induced by the meddling of others.

The judgment is reversed.


author: Coulter, J.

text:
    Bank v. Patterson.
    Where lands are taken by the defendant in the execution at an annual valuation fixed by the inquest, a mortgage-creditor whose lien would not have been discharged by a sale of the lands under such execution is not entitled to the fund.
    In error from the Common Pleas of Beaver.
    The lands of Patterson having been levied on, their yearly value was appraised by the inquest, and they were delivered to him at that valuation by consent of the plaintiff, according to the provisions of the act of 1840. The question was, whether the owners of a mortgage given to one Rapp, were entitled to the rent or annual valuation. This mortgage was a prior lien to the plaintiff’s judgment, and would not have been discharged by a sale of the land thereunder. The court awarded the fund to the holder of the mortgage.
    Shaler, for plaintiff in error.

      Agnew, contó.

      Oct. 11.
   Coulter, J.

The lien of a mortgage, where it is prior to all other liens, is, by express statutory law, unaffected by a sale on a judgment. The object of the legislature was in such cases to make it independent, and above the process of execution on junior judgments. I can see no reason why this superiority should not extend to the process of delivering land upon an extent, as well as to the process of sale. In this case the defendant agreed to accept the premises at the valuation fixed and determined by the inquest, and they were delivered to him by the sheriff, under the act in such case made and provided. The question is, whether the mortgage, which is prior to the other liens, or the judgment-creditor, shall have the money. The 3d section of the act of 13th October, 1840, under which the proceeding took place, directs that the defendant who takes the premises at the valuation, shall pay the rent in semi-annual instalments to the plaintiff in the execution, until the debt, interest, and costs shall be satisfied. The 4th section of the same act provides, that the court out of which the execution issued, shall, on the application of any creditor, make an order directing the manner in which the money arising from such instalments shall be distributed among the different lien-creditors, according to the priority of their liens, in the same manner and with like effect as in case of money arising from sheriffs’ sales. Now it is clear that in case of a sale, the mortgage would not be entitled to any part or portion of the money; because the lien of the mortgage is not divested by such sale, or in any way affected by it. It still continues to subsist in full force. A priori, the money which arises from an extent which is to be distributed in the same manner, cannot be appropriated to the mortgage. The mortgagee may at any moment after the delivery upon an extent, proceed to sell the premises, just as he could sell a second time upon a sale on a junior judgment. There was therefore error in making the rule to show cause why the money arising from the instalment should not be applied to the mortgage, absolute. The judgment-creditor, the Bank of the United States, is entitled to the money.

The order of the court quashing the rule absolute is reversed, and it is ordered that the Bank of the United States take the money out of court.


author: Bell, J.

text:
    Minesinger v. Kerr.
    • In slander, evidence of the truth of the words is not admissible under the general issue; hut the defendant may prove, in mitigation of damages, the circumstances which induced him erroneously to make the charge.
    In error from the Common Pleas of Beaver.
    Case for slander, in charging the plaintiff with larceny. Plea, not guilty. The defendant offered to prove, in mitigation of damages, and not as a justification, that he had certain boards in the river, which plaintiff took, for the purpose of showing the circumstances under which he used the words in making the charge before a justice. This was rejected and assigned for error.
    Shannon, for plaintiff in error.

      Agnew, contó.

      Oct. 9.
   Bell, J.

The line drawn between competent and incompetent evidence, under the general issue in actions of slander, is sometimes not very distinct, nor has it been unwavering. It would be a vain task to attempt a reconciliation of the numerous cases on this subject. But I think a safe and reasonable rule, in relation to the point in dispute here, may be extracted from the modern decisions, which, prohibiting covert attempts to prove the imputed guilt of the plaintiff, yet permits the defendant to show he had some reason, though founded in mistake, to believe the charge well founded. Formerly, it would seem the courts tolerated evidence of facts and circumstances tending to a conclusion of guilt, but falling short, as it was said, of actual justification. But as, from the very nature of such testimony, it was impossible to ascertain a definite halting-place between mere grounds of suspicion and plenary proof of guilt, plaintiffs frequently found themselves in the predicament of convicted persons, in the estimation of the jury, without any previous notice of an intent to impeach them. This inconvenience caused a change in the rule of evidence in England, and, as I believe, in most of the states of our Union. Certainly, in Pennsylvania it is now settled that, without a plea of justification, it is incompetent to a defendant, in slander, to give evidence of particular facts, which induced him to believe the charge true at the time it was made, if such facts are of a nature to establish the accusation, or may form links in a chain of circumstantial evidence tending to fasten guilt upon the plaintiff. You shall not, says the law, attack him indirectly if you fear to do it directly, by placing on the record an avowal of your intent, and thus put him on his guard: Petrie v. Rose, 5 W. & S. 364; Kay v. Fredrigal, 3 Barr, 223. The same principle is enforced in New York, as is shown by Root v. King, 7 Cow. 633; and Wormouth v. Cramer, 3 Wend. 396. But in the former of these cases, which was very elaborately discussed and much considered, it was held that the defendant, if he has not attempted to justify the charge, may prove, under the general issue, by way of excuse, anything that in the slightest degree repels the presumption of malice, if it do not necessarily imply the truth of the charge or tend to prove it so. This distinction has received the sanction of this court in Beehler v. Steever, 2 Wh, 313, whei’e it was ruled that a defendant may, under the general issue, in mitigation of damages, prove such facts as show a ground of suspicion, not amounting to actual proof of the plaintiff’s guilt, and, I would say, shown to be reconeileable with his entire innocence. It was there observed, with much pertinency, that if one truly believes the existence of guilt, though mistaken in point of fact, and, in a moment of irritation, make a criminal charge against another, he is surely not as culpable as where the accusation is preferred without any reason, actual or supposed. To this I may be permitted to add that there is a wide difference between a deliberate defamer and one who, mistaking the legal character of a transaction, denounces as crime what is, in truth, simply a civil trespass. Evidence showing this is directly addressed to the degree of malice present, without establishing the imputed turpitude. It should, therefore, be received, for although the injury done to the plaintiff’s character furnishes, in part, the standard of damages, the motives of the accuser, and the presence or absence of wanton and causeless malice, may fairly enter into the estimate. As a result of this reasoning, I think it may be safely asserted that facts which contribute, even in a slight degree, to show an innocent reason for the defendant’s act, and which do not, at the same time, tend to support a plea of justification, are receivable in mitigation of damages. This distinction is, in itself, obvious enough. The great difficulty lies in its practical operation, for experience teaches that to discriminate between that which, in some sort, may serve to excuse an unfounded impeachment, and that which proves its truth, calls frequently for the exercise of a very nice and delicate perception.

But in the present instance, I think this difficulty does not present itself. The offer, as I understand it, was to prove that the plaintiff had committed a trespass in taking and converting boards belonging to the defendant, and that the latter, misconceiving the nature of the plaintiff’s act, mistakingly charged him with a felonious appropriation of the property. This was certainly not impertinent evidence. It must be, therefore, competent under some form of pleading. But it was not of a character to sustain a plea of justification. It was consequently, under the rule I have stated, receivable on the general issue, for otherwise it would be shut out altogether.

We know that, on the trial of such an issue as this, many vexed and perplexing questions are apt to be sprung upon the presiding judge without any time afforded for deliberate investigation. In the hurry of the trial, the court below thought the offered evidence within the inhibition of Petrie v. Bose. As it is presented to us, it does not appear to be so. The defendant is, therefore, entitled to another trial, with the benefit of his excluded testimony.

Judgment reversed, and a venire de novo awarded.


text:
    Dodds v. Dodds.
    Wliere an attorney confessed judgment in ejectment against defendant for part of the land, and it appeared from the entry thereof that the condition was that the plaintiff should convey the other part of the land to the defendant, the judgment will be reversed at the instance of the defendant, for the agreement was not mutual, not being binding on the plaintiff under the statute of frauds.
    Affidavits read in the court below cannot be read in error, not being part of the record.
    In error from the Common Pleas of Butler.
    An ejectment was brought against Sarah Sands, and, by consent, her daughter was admitted as a defendant, the mother appearing for her as guardian. The record showed that after, a jury was sworn, a judgment was entered by consent against defendant for a part of the land, plaintiff to convey the other part to her, and to her mother for life, who sued out this writ of error.
    Certain affidavits were read in the court below, to show that defendant’s guardian had refused to permit this to be done.

      Trimllin for plaintiff in error.
    Darrah, contri.

      Oct. 12.
   Gibson, C. J.

As we cannot look beyond the record, the depositions which show that the judgment was confessed by the defendant’s counsel, not only without, but expressly contrary to the instructions and protest of their client, must be laid out of the case; and for ground of relief we are restrained to the agreement entered on the docket, which, if it could not be enforced entire, a chancellor would not enforce at all. Notwithstanding the entry of it on the docket by direction of the counsel of both parties, it rested on parol — as much so as if it had been written on a separate paper — and it consequently falls under the letter of the statute of frauds, which declares that all leases, estates, or interests of freehold “ not put in writing and signed by the parties so making or creating the same, or by their agents thereunto lawfully authorized by writing,” shall have the effect only of leases at will. To say nothing of the positive requisition of the statute, an attorney at law, even when constituted by actual warrant, has no power to compromise his client’s suit, much less to bargain away his land, as was held in Huston v. Mitchell, 14 S. & R. 307, a case in all respects like the present, except that the judgment was entered pursuant to a compromise in the Supreme Court, where it was set aside, as this judgment might, on the same principle, have been, in the court below. But the statute requires even an attorney in fact, to sign the name of his principal, which was not done here. An attorney at law doubtless has authority to bind his client by confession of judgment; and when he does so, without terms which show that he exceeded it, the client is concluded by it, and turned round to an action against him for breach of instructions. What then would a chancellor do, if called upon to enforce this agreement ? He could not compel the defendant to execute a conveyance of half the land, because she did not sign or authorize it; nor could he establish the particular line of division, by requiring a conveyance from the plaintiff, who is in the same predicament. But not being able to decree the contract specifically, he would not permit either of the parties to retain a legal advantage derived from it; and having no direct power over the judgment at law, he would render it abortive by a perpetual injunction to restrain the plaintiff from suing out execution of it. We have no such power, but we can attain the end directly, by abating the judgment on writ of error, as the court below ought to have done, by setting it aside on motion. The case is an extraordinary one; and, to preserve the defendant’s right of trial by a jury, it requires an extraordinary remedy: consequently we are bound to apply the only one we have in our power.

Judgment reversed, and procedendo awarded.


text:
    Stevenson v. Matthews.
    Where a trust was created for the purposes of trade, and debts are contracted in the prosecution of the trust for -which by the terms of the deed the trust property is liable,-the trustee is a proper party to an action to enforce payment of the debts out of the fund, and he may be added after the judgment was reversed for want of proper parties.
    In error from the Common Pleas of Mercer.
    The case is sufficiently stated in the opinion of this court.

      Oct. 6.
   Coulter, J.

This case is substantially ruled by Mathews v. Stephenson, 6 Barr, 496. That was the same case brought into this court, for errors somewhat different from the error assigned at this time, and reversed because Oliver Stevenson, the grantor and creator of the trust, was not made a party defendant.

In the present aspect of the case, the error assigned is, that the said Oliver was permitted by the court below to appear and make himself one of the defendants.

The whole proceeding would perhaps be irregular, upon common-law principles, relating to the origin and conduct of suits at law. But the suit was brought in the court below, and a declaration filed, setting out the special facts in the nature of a bill in chancery. The object was to reach a trust fund, under the control and management of a trustee who was worth nothing himself, but contracted debts in dealing on the trust property and money, for the benefit of the cestuis que trust, who are also parties.

In the case referred to, it was ruled, that the trust property was liable, and might be reached by an action of this kind; but that, in analogy to proceedings in equity, all persons who might have any interest in the fund ought to be made parties. The cause was sent back, with an intimation, that perhaps as a chancellor would supply the parties by a supplemental bill, the court might bring in Oliver Stevenson in the mode therein indicated. That case, to wit, 6 Barr, 496, will fully explain the attitude of the cause when it left this court.

When the cause was remitted to the court below, Oliver Stevenson appeared and prayed leave to be added as a defendant, and the court granted leave. He accordingly filed his appearance. And this is assigned as error by the other defendants. In chancery, the proceeding would have been perfectly regular.

And when we adopt the principles of equity, we must, to some extent, adopt the mode of proceeding in chancery, to give them effect. In addition to the authority cited in the case in 6 Barr, 496, I might mention the case of a declaration on a lost bond, and the rendition of a conditional verdict, as strong innovations on the common-law mode of proceeding in common-law courts, for the purpose of giving effect to equity principles.

There would seem to have been no other mode of reaching the fund, which this court decided to be liable, except in the mode of action, and the form of entering the judgment, which was adopted in this case. The addition of Oliver Stevenson as a defendant did injustice to no one, particularly not to the other defendants, and was only necessary in order to conform to the chancery mode of proceeding; inasmuch as there was no plea in abatement by the defendants, which would have been necessary at common law, and merely enabled the court to accomplish justice according to equity. He is a good judge, it has been said by high authority, who amplifies his jurisdiction. We think there was no error in allowing Oliver Stevenson to make himself a party, as if the writ had been served upon him. As to the form of entering judgment, so as to affect the trust fund only, that has a precedent in Aycinena v. Peries, 6 W. & S. 243; and has authority in the case in 6 Barr, 496.

Judgment affirmed.


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    Lackey v. Mercer County.
    A. purchased a donation, tract at a tax-sale, which was void, because the owner whose land was exempted from taxation was living. While he held the title he paid taxes, and afterwards he was ousted by the owner. He cannot recover back the taxes paid by him, for there was no compulsion used.
    In error from the Common Pleas of Mercer.
    Case stated. In 1822, defendants sold to plaintiff, for taxes, a donation tract, the donee of which, a revolutionary officer, was then living. The plaintiff entered and made improvements, and the land was subsequently recovered by the donee, subject to the value of the improvements. Whilst plaintiff was in possession, taxes were assessed and paid to defendants, and the question was, whether he could recover them back. The court gave judgment for defendants.
    Stephenson, for plaintiff in error.
    Maxwell, contrá.

      Oct. 11.
   Gibson, C. J.

This action is brought to recover back, not the purchase-money paid for the tax-title, for the maxim caveat emptor would have barred it, but taxes subsequently assessed on the tract in the plaintiff’s name; assessed, however, in the lifetime and during the ownership of a revolutionary officer, to whom the state had granted it, and consequently paid on a void assessment. A single fact in the cause turns the scale against the plaintiff — the payment was voluntary. The cases agree that a party who has paid an unfounded demand without constraint, cannot recover it back: it was his folly to part with his money, and he must submit to lose it. But the difficulty is, to say what degree of constraint entitles a party to his action. In Colwell v. Peden, 3 Watts, 328, where the subject was considered on principle and authority, it was. ruled that an action cannot he maintained to recover back money paid under an impending distress not attended with oppression or an abuse of the remedy, but made in good faith for rent erroneously supposed to be in arrear, the tenant’s remedy having been trespass or replevin. That ease goes beyond the present. There the property had been actually seized; here there was neither distress nor any coercive measure whatever. The taxes were assessed and the plaintiff paid them, so far as we can perceive in the record, without objection, when the collector called on him, and without warning to the county that the money would be reclaimed. There could not be a more bald case of voluntary payment. His course was to appeal from the assessor to the county commissioners, and, if they would not exonerate him, stand a distress and sale, for which he would infallibly have recovered by action of trespass. True, he may not have known that the assessment was void; but he knew that the tract was donation land granted to an officer or soldier of the revolution, and exempted from assessment while he survived, and was the owner of it. It was his business, therefore, if it was the business of any one, to ascertain that the original grantee had transferred it, or was dead; for it rested on him to show the matter which made his case an exception from the general rule, and if he did not, he was chargeable with negligence. And the county may retain the money received in consequence of his supineness, with a clear conscience. Without having a taxable estate in the land, he had gained in it a species of property in common with the owner by the improvements put upon it, which the law recognised and protected. In this instance, the officer, who subsequently sold the tract to the plaintiff for $200, recovered it by ejectment, but charged with $1,330 for what are called, in some parts of the state, "the betterments,” which were prevented from bearing their usual share of the burthen only by the exemption of the officer’s estate, of which they had become a part. The plaintiff’s part of the property, therefore, was exempted for no merit of his own; and as he contributed to the public treasury no more than what was in conscience his proper share, his contribution is irrecoverable. Independent of that, however, a sufficient answer to his action is the fact that he made it without compulsion.

Judgment affirmed.


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    Kay v. Allen.
    A letter of credit does not create a liability on the part of tlie writer, unless he have notice of the acceptance of the guaranty, except the guaranty and the credit given were contemporaneous.
    In error from the Common Pleas of Crawford.
    Assumpsit on the following letter of credit, signed by defendant: “ I would recommend Mr. P. M. Martin, and would go security for him to any reasonable amount; so you can fill his orders, and feel yourself as secure as when I was doing business with you.”
    The plaintiffs proved that Martin applied to them to know the terms on which they would furnish him goods, and that they agreed to do so on his procuring a “satisfactory person to underwrite him.” They then received the above letter, and pursuant to it, and on its faith, they furnished the goods.
    McCalmont, P. J., told the jury the plaintiff could not recover, as notice to defendant of the acceptance of the guaranty had not been shown.

      Sdden, for plaintiff in error.

      Derriclcson, contrá.

      Oct. 7.
   Bell, J.

There is no principle of the law of contracts more firmly settled than that a guarantor of future credit or advancing, is entitled to notice from the party giving the credit, of his acceptance of the guaranty, unless, indeed, the agreement to accept be contemporaneous with it: Wildes v. Savage, 1 Story R. 26. And even this is rather an instance of simultaneous proffer and notice of acceptance, than an exception to the rule. Without such notice there is no contract, for a party giving a letter of guaranty has a right to know whether the person to whom it is addressed means to hold him ultimately responsible, inasmuch as his own caution and vigilance may, in a great measure, be regulated by his knowledge of the fact. The authorities to this point are numerous and concurrent. Many of them are brought together by Mr. Justice Story, in his treatise on Contracts. In one of them (Edmondston v. Drake, 5 Pet.. 624), the Supreme Court of the United States, speaking of this species of suretyship, says, “it would indeed be an extraordinary departure from that exactness and precision which peculiarly distinguish commercial transactions, which is an important principle in the law and usage of merchants; if a merchant should act on a letter of this character, and hold the writer responsible, without giving notice to him that he had acted on it.” It is well observed, in Lee v. Dick, determined by tbe same court (10 Pet. 482), that the notice may be most material to the party, not only as to his responsibility, and the necessity of providing means to meet the responsibility, but as to future rights and proceedings. It may regulate in a great measure his course of conduct, and his exercise of vigilance in regard to the party in whose favour the guaranty is given.

But the court below seemed to think, and the notion was urged here by the plaintiffs’ counsel, that a precedent request by the creditor to the party subsequently offering the guaranty, was equivalent to notice of acceptance. But I find no warrant for this view in any of the cases with which I am acquainted. In Anderson v. Blakely, 2 W. &. S. 237, cited as authority for this position, the question was not made. That case turned on the point, whether the defendant’s undertaking was a limited or continuing guaranty, and not on the presence or absence of notice. Indeed it is difficult to imagine how precedent request alone can supply the place of subsequent notice, since after request made and proffer of guaranty, the merchant may refuse the credit or advance craved, and without notice the surety cannot know whether he has or not. So far is this insisted on, that it is said without notice there can be no contract; for, like all other contracts, that of guaranty requires both a proposal and acceptance thereof: Story on Con. § 555. But here there was neither request by the plaintiff to the defendant, nor notice. The charge of the President of the Common Pleas on this point, was therefore clearly right.

The second point made on the nature of the guaranty, does not properly arise on this record.

Judgment affirmed.


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    Trustees v. Sturgeon.
    Testator devised one acre of land “for public use, scbool-house, meeting-bouse, and grave-yard,” and tbe proceeds of certain lands “for tbe support and maintenance of a Presbyterian clergyman, who shall statedly officiate in a bouse of worship which may be erected on the acre of ground hereinbefore reserved for that and other public uses,” provided a church was formed within three months after the death of his wife, and a house for worship built within a year thereafter. If the conditions were not complied with, the said proceeds were devised “ for the use of the trustees of the General Assembly of the Presbyterian Church in the United States of America, and their successors, to be applied, under the direction of the Board of Education of the General AssemMy of said church, to tlie education, of indigent and pious young men for tlie gospel ministry.” At the time the will took effect there was but one General Assembly of the Presbyterian Church, of which the testator was a member. Subsequently a division took place, and two General AssemMies were formed. Two societies were formed, organized under the two General AssemMies, claiming to be the church intended in the will: The society which was lawfully organized under the regulation of that General Assembly which was the lawful successor of the original General Assembly, is entitled to the property.
    Declarations of testator as to which church or what person he intended should take by his will are inadmissible, for there being but one General Assembly at the time, there is no latent ambiguity to be explained, arising from circumstances existing at the time the will took effect.
    In error from the Common Pleas of Erie.
    This was an action of trespass, to try the right of two congregations to a piece of land devised for the use of a church, &c., in which a special verdict was found.
    The will under which both parties claimed was, so far as is material, as follows: — After devising to his wife, for life, the proceeds of his farm, adjoining lands of Heiss et al., (“ except one acre of land to he laid off for public use, school-house, meeting-house, and grave-yard,”) the testator directed that the proceeds of the. said lands “shall, after her decease, for ever he and remain as a permanent income for the support and maintenance of a Presbyterian clergyman, who shall statedly officiate in a house of worship, which may hereafter he erected on the acre of ground hereinbefore reserved, for that and other public uses; provided there is a church formed any time before or within three months after the decease of my wife, and a house for worship built in one year from said time; and when so complied with, my executors or surviving executor are hereby authorized and empowered to convey the same to the trustees of said church, and their successors, regularly chosen by the members of the church every year.”
    “And provided there is not a church formed and a house built agreeably to the proposal heretofore made, then and in that case the proceeds and avails of said land, after the time prescribed in the bequest to the church is up, shall he for the use of the trustees of the General Assembly of the Presbyterian Church in the United States of America, and to their successors, to he applied under the direction of the Board of Education of the General Assembly of said church, to the education of indigent and pious young men for the gospel ministry.”
    The verdict found, “ That the plaintiffs are trustees of a Presbyterian congregation in the village of Eairview, organized on the 12th day of March, 1842, by the Erie Presbytery, in connexion with the Synod of West Pennsylvania, and the General Assembly of the Presbyterian Church in the United States of America, which met in the First Presbyterian Church in the city of Philadelphia, in May, 1838, under the circumstances as reported in the case of the Commonwealth v.‘ Green et al., 4 Whart. 531. The said trustees having been incorporated by the Court of Common Pleas, on the 12th day of November, 1842, and at the same time said church was so organized, elders were regularly elected and ordained. That the Erie Presbytery met in Meadville in June, 1838, in pursuance of a previous adjournment, and was duly organized and proceeded to business. There were a number of resolutions pending before said Presbytery (but what these resolutions were, the jury is uninformed) ; upon the vote being taken on one of said resolutions, a part of the members of said Presbytery, being the minority thereof, withdrew from the place of business, and the majority part of said Presbytery, is the same Presbytery under which the church of which the said plaintiffs are trustees. The Moderator, and the stated clerk (being of the minority) withdrew, and carried with them the records of the Presbytery, and organized in another place, and after such withdrawal, the majority proceeded to the election of a Moderator and stated clerk, and proceeded with business. Both Presbyteries profess to adhere to the same confession of faith, and form of church government. That one William Sturgeon, on the 27th day of November, 1837, made his last will and testament (pro ict said will) and died on the 17th of April, 1838, and said will was duly proved on the 18th of April, 1838. That in pursuance of the provisions in said will, the plaintiffs, on the first day of September, 1845 (having been previously duly elected trustees under the provisions of said charter), entered upon the acre of ground described in said will, as set apart for a schoolhouse, meeting-house, and burial-ground, and staked off a site on said acre for a meeting-house. And the said plaintiffs, on the first ■lay of February, 1846, built a fence around said lot of ground, and that the plaintiffs commenced the building of their meetinghouse in the fall of 1845, and had the frame erected on said acre of ground before the 17th of March, 1846, but not roofed nor enclosed, and had the same finished on the 15th of July, 1846, and that the said meeting-house was built on the ground fenced in by the said plaintiffs as aforesaid. That Margaret Sturgeon, widow of the said testator, William Sturgeon, died on the 5th of September, 1845. That the Rev. Joseph Yance, a Presbyterian clergyman, has officiated as pastor of said church from_the 1st of November, 1845, up to tbe present time; and that tbe meetinghouse erected as aforesaid by tbe plaintiffs, has been tbe place of worship from the time it was finished up to this finding. That on the 17th of March, 1846, the said defendants, Samuel C. Sturgeon, Robert Kirk, William W. Eaton, Robert M. Sturgeon, and Jeremiah Y. Sturgeon, entered upon the said acre of ground, within that part of it which had been fenced in by the said plaintiffs (which fence was down in places so that anything could go in and out), and left timber on said part of said lot, and that two of said trustees were in said lot on the said 17th of March, 1846, and forbade the said defendants coming on said ground, before said defendants entered thereon. That the defendants are the trustees and agents of an organized Presbyterian congregation or church in connexion with the Presbytery of Erie, Synod of Pittsburgh, and that Assembly claiming to be the General Assembly of the Presbyterian Church in the United States of America, which, in 1838,-met and transacted its business in the Seventh Presbyterian Church, Ranstead Court, Philadelphia, under the circumstances reported in said case of the Commonwealth v. Green et al. That said congregation was organized, and elders therein ordained on the 21st of July, 1845, in pursuance of an application to the said Presbytery of Erie, and by a clergyman of that connexion by said Presbytery for that purpose appointed; which organization of said congregation or church, was on the 26th of August, 1845, adopted by said Presbytery, and on the 23d of September following, approved by said Synod. That the defendants entered upon said lot with their timber, &c., on said 17th day of March, 1846, for the purpose of erecting thereon a house of worship for said congregation, which entry is the act complained of by plaintiffs as a trespass. That the defendants proceeded with the erecting of such house of worship, and had the same completed within the time specified in a certain provision of the will of said Sturgeon, before mentioned, respecting the erection of a house of worship on the lot aforesaid, and specifying the time within which such house should be completed ; that said house of worship was erected in pursuance of the provisions of said will, and has been from the time of its erection to the present time, used and occupied as the regular house of worship of said congregation.. That for many years previous to the year 1838, and up to that year, the Presbytery of Erie had belonged to, and been under the supervision of the Synod of Pittsburgh, within the bounds of which it was, and is. That in September, 1838, the ^Presbytery under which plaintiffs’ congregation was organized, and the Presbytery under which the defendants’ congregation was organized, each presented their rolls or records to the Synod of Pittsburgh, and that the rolls of the Presbytery under which the defendants claim organization, as the rolls of the Presbytery of Erie, were adopted, and those of the Presbytery under which plaintiffs claim organization, rejected by said Synod, with the allegation by said Synod, that they had received and adopted that of the Presbytery under which defendants claim organization. That from 1838 to the present time, the Presbytery under which defendants claim organization has been under the supervision of, and acknowledged by said Synod, as the Presbytery of Erie; and that the Presbytery under which plaintiffs claim, has not, since the said rejection of its rolls, been acknowledged by said Synod as the Presbytery of Erie. That the Erie Presbytery was originally formed by the Synod of Virginia, within the bounds of which it then was; and that when the Synod of Pittsburgh was formed_out of a portion of the Synod of Virginia, the Presbytery of Erie fell within its bounds, and so remained .up to the time of the transactions at Meadville in 1838, before mentioned, and that there has been no order by said Synod of Pittsburg, for the formation of the Erie Presbytery, since said transactions at Meadville. That by the constitution of the Presbyterian church, no new Presbytery can be formed within the bounds of a Synod without its order and approbation. That the General Assembly of the Presbyterian Church of the United States, under which the 'defendants’ congregation is organized, has in connexion with it a Board of Education, whose object is the education of pious, indigent young men for the gospel ministry, and that the General Assembly under which the plaintiffs claim organization, has nonsuch board, but had at the time of the alleged trespass, a Board of Education, but not of that name.”
    On the trial, the plaintiffs proposed to prove that William Sturgeon, the testator, belonged to the Springfield church, which was under the care of the Rev. Mr. Chamberlain, from 1829 to 1832; then became a member of the Girard church, under the charge of the Rev. Mr. Lockwood, and continued a member and an attendant at the Girard church'until the time of his death; and that the incorporated church of Eairview, the plaintiffs in the case, is composed mostly out of the Girard church, and that the Girard church is in the New School connexion; and also offer to prove the declarations of the testator, as to what church he intended should receive the devise in his will: which was rejected, “ because the intentions of the testator cannot be made out by parol declarations, but must depend on the written will itself; and the other part of the offer is not a matter of dispute, but is admitted in substance.”
    The plaintiffs also offered to prove that the testator, before his death, named the persons who, he said, he intended should receive this donation he had made in the will, and that they are the same that compose the corporation, the plaintiffs.
    On the trial, it was admitted that testator was a member of a Presbyterian church attached to the Erie Presbytery, in connexion with the Pittsburgh Synod and General Assembly, then known and acknowledged as such.
    After the defendants closed the evidence on their part, the plaintiffs’ counsel renewed their offer of the evidence mentioned in the first and second bills of exception, and it was rejected.
    The court (Church:, P. J.) entered judgment for defendants.

      Marshall and Forward, for plaintiffs in error.
    This is a case of equivocation — of latent ambiguity, arising from two claimants of the devise, both having the same name, in which parol evidence of the intention of testator was admissible, to designate which should take: Powell v. Biddle, 2 Dall. 70; Greenl. Ev. 339, 340 n. § 289 to 291; Bailey v. Snyder, 1 Penn. Rep. 126; Verner v. Henry, 3 Watts, 384; Ziegler v. Eckert, 6 Barr, 18; 2 Kent Com. (6th ed.) 288; 16 Johns. 24; 6 Pet. 68; Burch v. Lehigh Navigation Company, 4 Rawle, 130 n. An act of excision of congregations claiming their rights, cannot divest the rights of property, if there be no offence or cause of forfeiture: Presbyterian Congregation v. Johnson, 1W. & S. 1.

      Babbitt and Walter, contra.
    The synod refused to recognize plaintiffs, and this court will not reverse its judgments: Commonwealth v. Green, 4 Whart. 603. The devise over shows that it was for the incorporated church: 3 Smith, 360. We had an equal right, being the same in form and faith, &c., to enter, to perform conditions, and save the bequest. The Assembly, under which plaintiffs claim, had no existence when the will was .drawn, nor until after testator’s death. The offer to prove who were the individuals to take, is at variance with bequest to the corporation: 1 Greenl. § 289; App v. Lutheran Congregation, 6 Barr, 201.

      Oct. 26.
   Coulter, J.

(after stating the evidence offered and rejected.) — The will was made on the 27th November, 1837, and probate made thereof on the 18th April, 1838, one day after the death of the testator. By the 6th section of the act of 1833, on the subject, it is provided that every will shall be in writing; and the 13th section of the same act enacts that no will in writing, concerning real estate, shall be repealed, nor shall any devise or direction thereof be altered, otherwise than by some other will or codicil in writing. The provision in the 13th section is peculiarly marked and emphatic, and seems fully to establish that any parol evidence which would alter or change the will, or any clause thereof, from the interpretation that it ought to have received when it was written, and at the time of testator’s death, is interdicted and disallowed. If the evidence offered to be given proposed no change or alteration in the clauses of the will, why was it proposed to be given ? There is no ambiguity or uncertainty on the face of the will itself, nor in its terms. It is plain and clear, as matters without the will stood at the time it was written, and at the time of the testator’s death; there is, therefore, no latent ambiguity. There was then but one General Assembly, one Presbyterian church professing the same faith, one hierarchy of that church, descending through all the grades from the sovereign power of the General Assembly down to the organization of each congregation. The temporal government of the church was a unit. The will, so far as this church is concerned, must operate and take effect as it existed at the time of the testator’s death, corresponding exactly as it did with its identity when the will was made. Because the devise must, at that time, expend itself, and have something on which to operate. It then takes effect. Now, if there was anything corresponding exactly with the words of the will, and fulfilling all the exigencies of the clause according to the primary intent at the death of the testator, the clause wmuld of course be applied to it. And the admission of parol testimony for the purpose of making it apply to some other thing of kindred quality and nature, would be altering the will by parol, and making it exist partly in writing, executed according to the statute, and partly in parol, contrary to the express enactment of the law. The testimony would therefore be excluded by the statute.

But passing by this view of the case, I will consider the matter as it would stand at the common law, or mnder the English statute of frauds and perjuries, which, in this particular, is merely declarative of the common law. There are two kinds of ambiguities; the one patent, the other latent. The first is, when the uncertainty exists on the face of the will; and, in such case, parol evidence to explain it has never been admitted, because it could only be explained by putting other words or ideas into the will or in the mouth of the testator, and thus make a new will for him. The other is ambiguitas latens, where the words of the will are plain, consistent, and certain, and where the uncertainty arises from extrinsic facts or circumstances, either in relation to the property devised or the person who is entitled to -take. In such cases of ambiguity, parol evidence is admitted in explanation of, and to designate the property or person designed by the testator; and there has been a great variety of cases decided on this subject, some of them conflicting, but which I will not examine-, as it would unnecessarily swell this opinion. It is clear, however, from all of them, that the parol testimony on the subject, from behind the will, to be admissible, must relate to the situation of the property or person at the time the will was made. In illustration of this position, Lord Abinger observed, in Hiscocks v. Hiscocks, 5 Meeson &Welsby, 363, “To understand the meaning of any writer, we must first be apprised of the facts and circumstances of his allusions or statements; and if these are not fully disclosed, we must look to the works of contemporaneous authors.” In that case, the devise was to testator’s son John, and, after his death, “ to his grandson, John Hiscocks, eldest son of the said John Hiscocks.” John Hiscocks, the father, had been twice married; and by his first wife had a son, named Simon, and by his second wife a son, named John. Hence the latent ambiguity, extrinsic of the will; to explain which, parol testimony was admitted, to show who the testator intended — Simon, the eldest, or John, whose name agreed with the devise. In the case of Beaumont v. Pell, 2 P. Wms. 141, the question arose on a bequest to Catharine Earnly, and the name of a person who claimed the legacy, as being intended by the tes? tator, was Gertrude Yardley. No person by the name of Catharine Earnly claimed the legacy, or was known to exist, when the will was made; and the court admitted evidence to prove that the scrivener made a mistake in writing the will, and substituted Catharine Earnly for Gertrude Yardley; observing, however, that it was of emphatic importance in the cause, that no such person as Catharine Earnly was known to exist when the will was made, nor claimed the legacy.

Part of the evidence proposed and rejected, is not denied but admitted; and that part which relates to the declarations of the testator, as to which church he intended the devise to benefit, and named the individuals and persons whom he intended to receive the donation, would put new words and ideas into the will by parol. This testimony, if admissible, or if received, would not create an ambiguity latent, and arising from extrinsic circumstances existing at the time of making the will, or at the time of testator’s death. The court must place itself, in case of latent ambiguity, in the situation of the testator at the time of making his -will, and looking at the surrounding facts, with a knowledge arising from those facts alone, declare the meaning and construction of the will: Wigram on Wills, pro. 5, pl. 96, and Doe v. Martin, 1 Nev. & Man. 524. The New School connexion, as it is called in the case, did not exist at the time of making the will, nor at testator’s death. Without, therefore, he possessed the gift of vaticination, and looked darkly into the womb of futurity, he could not by possibility, or the law of nature, have had in Ms mind the separation of the Presbyterian Church into two separate branches, each claiming and establishing distinct governments, but professing the same principles; nor could he indicate the individuals who would belong to each or either branch; 'and if he could, it would be a devise to them, and not to the Presbyterian Church. There was nothing at the time of the testator’s death, to which the devise could attach, but one Presbyterian Church; there ivas, therefore, no latent ambiguity. The evidence was properly and lawfully overruled; and this goes a great way towards ruling the cause. We must next, however, consider whether from the facts found in the special verdict, judgment ought to be entered thereon, in favour, of the plaintiffs or defendants. [His honour here stated the fa.ets found by the verdict.]

It is evident from this statement of facts, that the first and main question is, whether the plaintiffs are the representatives of such a church as the testator intended should - receive the benefit of the devise, or not.

When the testator made his will, there was but one General Assembly in the United States; that Avas in November, 1837, and •the same state of things continued until his death, in April, 1838. The disruption and formation of the second, or what is called the New School General Assembly, did not occur until May, 1838. The trustees of the old General Assembly, existing in 1837, were incorporated; and that this General Assembly was in the mind of the testator is evident from the fact of there being then but one alone, and also from the fact that he speaks of the trustees, and their successors, who should be elected by the General Assembly. The developement of facts then in futuro, could not have been present to his mind; for Ayho can fathom and make palpable to sight and mind the dark and shadowy events in the womb of time ? But if he bad been gifted above other men, so. as to see and know things and events then in the dark abyss of the future, he would have provided for them in the written muniment of the charity — his lawful will — and thus prevented dispute or cavil. We take it therefore as a matter of irresistible conclusion, that the testator had in his -mind and intention the then existing General Assembly, its organization and ecclesiastical government, down to the Presbyterian clergyman who was, in the language of the will, statedly to officiate in the church which was to be the recipient of his bounty. A clergyman who statedly officiates,” designates one who, either as regularly inducted pastor or as stated supply, acts by superior ecclesiastical authority. If, then, the testator had in his mind and intent the then existing General Assembly, in Nov. 1837, and its subordinate organization, does the General Assembly which sprung into existence in May, 1838, in the First Presbyterian Church, in the city of Philadelphia, represent or continue the old General Assembly of 1837 ? For if it does, the plaintiffs organized under it are entitled to the property. The question is fully resolved and answered by The Commonwealth v. Green et al. 4 Whart. 531. I need not state more of that case than this, that each party staked the regular organization of the conflicting General Assemblies upon the election of trustees, and this court sustained the election and appointment made by that Assembly, which by appointment of the old Assembly of 1837, met in the Seventh Presbyterian Church in 1838, and continued its session in the same place for that year. The closing paragraph of the opinion of this court, delivered by the Chief Justice, explicitly states the result of the decision in these words: — “ The preceding observations are deemed enough to show the grounds on which wé hold that the Assembly which met in the First Presbyterian Church was not the legitimate successor of the Assembly of 1837, and the defendants are not guilty of the usurpation of which they are charged.” The defendants were the trustees elected and chosen, by what is called in common parlance the Old School General Assembly, and the relators were the trustees elected and chosen by the Assembly usually denominated the New School. The church represented in this case by the defendants is organized under the Old School, and the church represented by the plaintiffs is organized under the New School General Assembly. As the stream cannot rise higher than the fountain, the successive Assemblies, representing the Assembly which met in the First Church, in 1838, are not the successors of the Assembly of 1837, •which existed alone when the testator made his will. And as the plaintiffs claim organization under a New School Assembly, they do not fulfil the exigencies of the will, nor come' within the intent of the testator. The Old School Assembly is lawfully in the possession of the archives and power of the old General Assembly, existing integrally before the disruption, and at the time of the devise, with the same ecclesiastical organization, and is its legitimate successor. The defendants organized under its authority are therefore the church designated by the devise.

In support of this view of the case, I may add, that the Presbytery of Erie, under which the plaintiffs are organized, applied to the old Synod of Pittsburgh, in the autumn of 1838, for recognition and adoption, thus manifesting that .they believed it to be a true branch of the old hierarchy, but were not admitted, because the Presbytery under which the defendants are established as a church, had been previously recognised.. We cannot decide, and do not undertake to determine, which branch or section of the old Presbyterian General Assembly is soundest in doctrine or purest in faith, or adheres most closely to acknowledged standards. These questions belong to another and a higher forum. We only decide as to identity and continuity of organization, so far as the right of property is concerned. That to which an individual has been long accustomed, and to which he has clung through life, is apt to be present to his mind in the closing hours of life and in articulo mortis, and is not relinquished without giving clear and unequivocal evidence of the fact. And when we have departed, and cannot speak for ourselves, such intention ought not to be imputed by the tribunals without satisfactory evidence. The testator died a member of the old Presbyterian Church; and in case the particular place of worship to which he intended his bounty to apply was not erected, he consigned the fund to the trustees of the General Assembly, to be disposed of by the Board of Education, through all time to come. This shows the location of his intent, and the settled purpose of his mind. The doctrine of Lord Eldon, in the ease of The Attorney-General v. Pearson, 3 Merivale, 400, that it is' the duty of the court to decide in favour of those, whether a majority or minority of the congregation, who are adhering to the ecclesiastical government of the church which was in operation at the time the trust was declared, is consonant with truth and nature, because it was on that which the mind of the donor rested. The case of App v. Lutheran Congregation, 6 Barr, 201, has a strong affinity in principle, though it does not reach the exact point. The case of The Presbyterian Congregation v. Johnston, 1 W. & S. 1, was strongly insisted and pressed by the counsel for the plaintiffs. But it impinges no principle nor invades any rule settled by this decision. At the time of the grant by the Penns, who were the founders of the charity in that case, the General Assembly did not exist, and no particular ecclesiastical connexion was intended, other than that expressed in the deed, to wit, that the gift was to the Society of English Presbyterians in and near the borough of York. It was held that the majority of the congregation did not forfeit their charter or the charity by refusing or declining to adhere to one or either of the branches after the disruption of the General Assembly. The court say by the Chief Justice: “In conclusion, we are of opinion that no particular Presbyterian connexion was prescribed by the founders or established by the charter.” And that is the gist and marrow of the decision. The deed of the founder was the polar star of decision there, which even the charter could not alter, and here the intent of the testator, in his last will and testament, gives the same steady and sure guide to reason and to justice. The judgment on the special verdict in favour of defendants is right, and the

Judgment affirmed.


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    Duncan v. Drury.
    Where one of two owners of land, subject to a mortgage, pays off the mortgage by instalments, and at the date of the last payment takes an assignment of the mortgage, it is not thereby merged or extinguished so as to give priority of lien to a subsequent judgment-creditor of the co-tenant.
    In error from the Common Pleas of Erie.
    Case stated. Hart purchased certain land from the administrators of Rogers, and assigned a moiety of his interest to Duncan. A deed was then made by the administrators to Hart & Duncan, who executed a mortgage for the purchase-money. Hart from time to time paid off part of the debt thus secured, and on paying the .last instalment, being $50, took an assignment of the mortgage. Whether he could sue out the mortgage, and have judgment de terns, as against a subsequent judgment-creditor of Duncan, was the question, it being admitted that Duncan had made no payments on account of the debt secured by the mortgage.
    The court was of opinion he might do so.

      Grallrcdth for plaintiff in' error,
    contended the parties here were principals, and there conld be no subrogation in such case: 9 W. 451; 8 Ib. 384; 7 Ib. 99 ; 2 Penn. Rep. 379; 3 Ib. 200 ; 5 Raw. 114; 1 W. & S. 155; 4 Bar. 126.

      Marshall and Walker, contrá.

      Oct. 9.
   Coulter, J.

A mortgage is not of course merged by

coming into possession of the owner in fee: Moore v. Harrisburg Bank, 8 Watts, 138. It depends generally upon the intention of the parties to the arrangement accompanying the operation, either of assignment or payment. An intent to prevent the merger will be presumed, whenever it is the interest of the party that the encumbrance should not be sunk in the inheritance: Richards v. Ayres, 1 W. & S. 485. Here, the intent of the mortgagor and mortgagee was quite apparent, that the security or encumbrance should be kept on foot, because the mortgagee assigned it to the recovering mortgagor. It is also clearly the interest of. the mortgagor, that it should not sink in the inheritance. If it should be so held, an encumbrancer would get part of the proceeds of the sale in this case against equity, because, at the time he procured his encumbrance, the mortgage was indisputably the oldest lien; and it continued so, up till the payment of the money by Hart. Why then should the judgment against Duncan, the other mortgagor, who had really no equity in the land, all the money having been paid by Hart, be held extinguished by Hart’s payment of the money contrary to the expressed intent of the parties, merely to take that much out of his pocket in favour of one whose whole lien was subject to the lien of the mortgage? If he or anybody else had bid up the land, to an amount exceeding the mortgage, then he would have got his money.

Judgment affirmed.


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    Osborn v. Holmes.
    Under tlie provisions of the act of 1846, a person engaged in the sale of goods of his own manufacture, and who also sells articles of domestic manufacture to an amount less than one thousand dollars per annum, not manufactured by him or at his shop, is liable to the license duty.
    In error from the Common Pleas of Crawford.
    Case stated. The defendant was engaged in the manufacture and sale of hats and caps, and also sold articles of domestic ■manufactures to an amount less than $1,000 per annum; which articles were not manufactured by him or at his shop. Whether he was liable to pay for a license to sell such articles to an amount less than $1,000, was the question. If so, then judgment for plaintiff for $7.
    Church, P. J., gave judgment for plaintiff for $7.

      Pearson, for plaintiff in error,
    argued, that by the proviso of the act of 1841, no one whose sales did not exceed $1,000 per annum, was liable to the tax.

      J. 8. Piddle, contó.

      Oct. 9.
   Burnside, J.

After a careful examination of the several acts of Assembly, we are satisfied the learned judge is - correct in Ms views. We adopt Ms opinion, and

Affirm the judgment.


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    Gulliford v. Skinner.
    Where a promissory note is payable to A. or bearer, A. is not incompetent as a witness, within the rule of Walton v. Shelly, unless he has endorsed the note. A subsequent holder who has transferred the note without endorsement, is a competent witness for the drawer.
    In error from the Common Pleas of Erie.
    Assumpsit on a note payable to Levi Guilford or bearer, and by him endorsed. The defendant, the drawer, called Guilford, who was rejected on a general objection. Eor what purpose he was offered, did not appear. i

    The defendant then called Palmer (and also his wife), who was the first holder of the note, but had not endorsed it. They were rejected on a similar objection.

      Galbraith and Walker, for plaintiff in error.

      Marshall, contó.

      Oct. 11.
   Gibson, C. J.

A plaintiff who sues as the bearer of a promissory note, sues as an immediate payee, designated by description. The promise is disjunctive, to pay to the person named or his substitute by delivery, either of whom answers the description of the promisee. In this instance, the person named would have been a competent witness, without colour of objection, to invalidate the note on any ground whatever, had he not endorsed it and brought himself within the rule in Walton and Shelly; which, however, excludes an, endorser only from proving want of consideration or any other fact that would invalidate it between the original parties. He was offered, not to prove any such matter, but to prove that it was discharged after it had been negotiated. Then he would be liable on his endorsement only in case the holder should fail to recover from the maker, and he was consequently offered to testify against his own interest; for his testimony, in this suit, would not help him in an action on the contract of endorsement.

The case of Tyler Palmer, through whose hands the note had passed from the original payee to the plaintiff, is still stronger. It had passed to and from him by delivery, and he did not become liable for the payment of it, even as an endorser. Had he paid it away for a precedent debt, he would have remained liable on the original contract till the note had been discharged; but the fact hasjnot been alleged; and if it were part of the case, it would show no more than that he was produced to swear against his interest. Not having been the bearer at the time of presentment, he does not stand as an intermediate party between the plaintiff and the defendant; and it is scarce necessary to say that his wife also was a competent witness, even without the release given to her husband.

Judgment reversed, and a venire de novo awarded. •


author: Rogers, J.

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    Sennett v. Johnson.
    Agreements additional to that reduced to writing respecting the subject-matter of a contract thus evidenced cannot be proved by parol, unless fraud or mistake is shown.
    Where several matters are offered at once under the plea of set-off, if any of them are inadmissible it is not error to rej ect the whole.
    An endorsement upon a bond, after suit brought, of the receipt of a note in payment of a particular instalment, is not evidence of the payment of the prior instalments.
    The consideration of the re-purchase of lands under a parol contract being within the statute of frauds, cannot be used as a set-off.'
    A liability for one cannot be used as a set-off against a claim by him, unless a cause of action has accrued.

      Whore the consideration of a bond is the transfer of a certain interest in a partnership, the deficiency of the interest by reason of indebtedness to the partnership cannot be used as a set-off where the accounts have not been settled.
    In error from the Common Pleas of Erie.
    This was an action of debt b.y Johnson, on a bond sealed by P. Sennett, payable in instalments on the 1st of April and September. Pleas, payment and set-off.
    This bond was given as the consideration for a conveyance of certain land, and of an assignment of Johnson’s interest, “being three-eighths of the whole,” in a partnership composed of Johnson, Lester & J. S. Sennett.
    The first bill of exceptions was to the rejection by the court of evidence of an agreement made by Johnson, at the execution of the deed, that he would continue in the establishment to settle up the affairs — which he neglected to do — and of representations by him that his share in the concern was three-eighths of the whole: if it were not, he would settle up, and make it three-eighths; and that at .that time he was indebted to the firm, and had since taken money out of the concern for his own use. The court rejected this, because it varied the contract evidenced by the deed, and there was no allegation of fraud or mistake. The defendant then offered to prove that Johnson and J. Sennett had received large sums for the firm, and borrowed others in the firm’s name, which they had applied to their own use; and that J. Sennett was insolvent; and that the other members of the firm consented to this set-off.
    The evidence was again offered, with proof that before the execution of the deed, in answer to defendant’s inquiry, it was represented that the effect of the deed would be to require Johnson to settle with the concern, and make his share three-eighths — and was rejected by the court.
    The exceptions to the charge of the court were as follows:—
    Endorsed upon the bond nearly a year after suit brought, was a .receipt for a note of a third person “on the payment, which became due April 1, 1844.” The court said, under the circumstances, this did not raise a presumption that all the prior instalments had been paid.
    2. It was in evidence that' plaintiff and J. Sennett had sold certain real estate to defendant, who had paid $700 of the purchase-money. There was also parol proof that plaintiff and Sennett had re-purchased this property, and had agreed to refund the amount paid. The court considered this could not be used as a set-off; for the right of action for such purchase-money was ■within the statute of frauds; and there being proof that Johnson was to pay this money by instalments, the last of which were not due, the court said, that as no suit could be maintained for all the instalments until all were due, the defendants could not set off the whole of the claim. And that it was true, as he contended, that until all were due, an action could not be maintained for some of the instalments, without waiving the claim to the others; for there was but one promise and one cause of action.
    3. There was proof, that at the time of the sale, plaintiff had stated that one ITalleck had no claim against the concern. Halleck sued the firm, including the present plaintiff, and recovered judgment, and the defendant was bail in error. The judgment was affirmed, after this suit brought. The court said, that until payment of this claim, he could not sue Johnson, and hence could not set it off; for the strongest view of the evidence was, that Johnson had agreed to take this claim on himself, not to indemnify against it; and the judgment against him was a compliance, until the defendant paid the debt.
    J”. Gfalbraith, for plaintiff in error.

      J. jET. Walls er, contra.

      Oct. 6.
   Rogers, J.

The court was right in rejecting the evidence contained in the second bill, as it was an attempt to explain, alter, and extend the deed by the introduction of parol testimony. The evidence offered in the third bill was properly rejected, because it is not the subject of set-off. The whole matter proposed to be proved involved the settlement of a partnership account, which can only be properly settled in an action of account render, now pending between the parties. The additional evidence offered in the fourth bill does not vary the principle, and we see no error in the court in adhering to the former decisions. One item in the first bill, namely, that the plaintiff had taken money out of the concern, after the sale to the defendant, was not obnoxious to the objections to the other evidence, and might have been received if offered separately. But the evidence was offered as a whole, and rejected as a whole. It is not the duty of the court, but of the counsel, to discriminate in such cases. The latter have no right to throw this burden on the court. And it may be readily perceived how much judgments would be endangered if artful practitioners were indulged in this practice. It would be a trap to the unwary, and one from which the most careful judges sometimes would find it difficult to escape. Here the counsel have no reason to complain, as the court distinctly announced, that as it was offered as a whole, it was rejected as a whole. We perceive no error in the answer to the points or the charge. The court have put the case on its true grounds, and we affirm the judgment for the reasons given. We have the less reluctance in coming to this conclusion, from the fact, that if the defendants have a just claim, they may (notwithstanding this judgment) assert it in an action against Johnson’s administrator. The first point was properly abandoned.

Judgment affirmed.


text:
    Briggs v. Thompson.
    A landlord entitled to one-half of the crops when divided, cannot maintain trespass against the tenant for taking the hay which the landlord has in his possession, hut which had never been divided.
    The entry of the landlord on the premises which had been left by the tenant during the term, and his putting another person in possession, and refusing to permit the assignee or agent of the tenant to occupy during the residue of the term, is an eviction which suspends accruing rent.
    In error from the Common Pleas of Erie.
    Trespass by Thompson against Briggs, for taking certain hay. It appeared that plaintiff demised the premises to defendant for one year, for which plaintiff was to receive one-half the hay, to be divided in the barn. During the term, defendant quitted the premises, leaving there his cattle and furniture, and the hay now in question, which had never been divided, and having authorized his uncle, C. P. Briggs, to hold the premises for the residue of his term. The plaintiff entered on the property, locked up the barn in which the hay was deposited, and refused to permit C. P. Briggs to occupy the land, but let the property to another person.
    There was a day fixed for the division of the hay, but this was not done. Defendant afterwards entered and took away all the hay, for which this action was brought.
    Church, P. J., instructed the jury the action could not be maintained, unless there was a contract that plaintiff should have half the hay delivered in the barn, and it was so delivered, and if nothing remained to be done, but that each should take their respective moieties, he might recover. That there was no eviction if, after abandonment by the tenant, the landlord merely entered and locked up the barn to preserve the property, and neither the lessee nor his under-tenant attempted to obtain possession.

      Babbitt, for plaintiff in error.

      Walker, contó.

      Oct. 9.
   Coulter, J.

Trespass lies where the plaintiff has the absolute or general property, although he has never had the actual possession; it being a rule of law, that the general property of personal chattels, primd facie as to all civil pui'poses, draws to it the possession.

The owner of tithe, where it has been set out to him, may maintain trespass against the occupier of the land who turns in cattle and destroys or injures it: Williams v. Ladner, 8 T. Rep. 72. And by analogy, the landlord in this case, Thompson, might have maintained trespass against the tenant for taking his share of the hay, after it had been set out to him. But the tenant had merely cut the hay and housed it in bulk in the barn. There is not a scintilla of evidence that any division had been made. Each was entitled to an undivided moiety, and the tenant was in possession of the whole. Trespass cannot be sustained against a joint tenant or tenant in common for taking away the property and holding it exclusively from his co-tenant, because each has an interest in the whole, and a right to dispose thereof: Martyn v. Knowlys, 8 T. Rep. 145; 4 East. 121; 1 T. Rep. 658. If the co-tenant destroys the property, the rule has been held differently: 2 Saund, 47, o.; Co. Littleton, 200 a. In this case, if the landlord had any- remedy against his tenant for taking away the hay, it was by action on the contract of lease. The second point of the defendant ought, therefore, to have been answered in the affirmative. There was no evidence whatever, of a division of the hay. But there is evidence that a day was appointed for that purpose, but that it was not done. I might add in this part of the case, that in Olwine v. Rinehart, 5 W. & S. 157, it was ruled, that when the rent is payable in kind, the landlord has no interest in the grain, until it is severed and delivered to him.

The third point relates to the suspension of the rent. The court say that “if the lessee went off and abandoned the premises, leaving them at waste, and the lessor merely went into these abandoned premises, and occupied, and locked up the barn to preserve them and the hay, and neither the lessee nor Ms under-tenant attempted, offered, pr demanded to have possession, or even claimed the possession, how could the lessee be said to have been evicted or expelled under such circumstances?” and thus qualified, their answer was erroneous, because it puts a hypothetical case to the jury, which has no foundation in the evidence. The testimony is distinct, and without any contradiction, that in November, 1845, the lessor put Hood into possession, a short time after Cory Briggs had moved out, and five months before the expiration of the term, and that he told C. P. Briggs, the uncle of Cory, to whom he had underlet, that he should not go into possession under Cory. That the landlord entered and locked up the barn in which the hay was. And that when Cory left the house, he left his cattle, sheep, and hogs on the place, and his grain in -another barn beside the one in which the hay was. That he left in the house a cloak, bedstead, &c., all which were left in the care of C. P. Briggs, who was to move in the house and have the remainder of the lease. Now, adopting the rule in the case to which the court refer as contained in 4 Rawle, 339, that an entry of a lessor without an eviction or expulsion of the lessee from some part of the demised premises, before the expiration of the time, will not suspend the rent, still there appears enough to fulfil that rule. The lessor entered and locked the barn, and thereby evicted the defendant from it. He interdicted the sub-tenant, to whom his lessee had transferred the term, from coming in, and he put another person into possession of the house and premises, when the lease was a little more than half expired. If all these acts do not constitute an entry of the lessor upon the lessee, such as will suspend the rent, it is difficult to imagine what kind of entry will; unless it be required that the landlord should take hold of the tenant, and put him and his household out by actual force. But that surely is not necessary. In the case of Magaw v. Lambert, 3 Barr, 444, it was ruled by this court, that if the landlord take possession of the ruins of his premises, destroyed by fire, for the purpose of re-building without the consent of his tenant, it is an eviction. If with his assent, it is a rescisión of the lease, and in either case, the rent is suspended. The acts of possession by the lessor in that case, were but slight compared with those in the present case, and there was, in fact, no eviction but-that which resulted from the lessor’s exercising acts of ownership over the demised premises. The case is much stronger than the one on hand.

The court ought, therefore, to have given a distinct, unequivocal answer to the third point, and they ought to have answered it in the affirmative.

There is one aspect of the evidence which was not mooted in the court below, either by counsel or .the court, to which I feel it necessary to advert, so as to prevent misapprehension. An entry only suspends accruing rent, not that which has fallen due before entry. This may -be of some' consequence, if the cause is tried again.

Judgment reversed, and a venire de novo awarded.