text:
    Bartolett versus Dixon.
    1. In an action for backing water, all matters in variance were submitted to three referees, “who shall go upon the ground, hear the parties, their proofs,” &e., and determine whether the water had been maintained too high. “ They shall fix one or more permanent marks” : the award of any two of them to be final. The referees reported; that they all met, examined the premises, heard the evidence, &e., and adjourned; that two again met and adjourned : that two again met, the third being sick, and adjourned: that two again met and awarded that the defendant had the right to raise the water to the point named. Held, that the award could not be sustained, it appearing on its face that but two heard and deliberated.
    2. Exceptions to the award were filed in the' court below, they were after argument, overruled and the award was confirmed : the court filed an opinion setting out the facts. Held, that the opinion and facts in it were not part of the record and could not be considered in the Supreme Court.
    3. It is not necessary where a majority have power to make an award, that it should appear on the face of the award that all the referees heard and deliberated ; the presumption is where not made by all, that the minority refused to join.
    January 24th 1873.
    Before Bead, C. J., Agnew, Williams and Merctjr, JJ. Sharswood, J., at Nisi Prius.

      Error to the Court of Common Pleas of Chester county: No. 42, to January Term 1873.
    This was an action on the case brought to October Term 1871, by John Bartolett against John W. Dixon. The declaration was that the defendant had raised and maintained a dam on his land too high, by reason of which the water flowed back upon the plaintiff’s land.
    The following agreement was filed in the case: — ■
    “ It is agreed that all matters in variance between the parties in this cause be referred to Elijah F. Pennypacker, Enoch Harlan and George Walter, who shall go upon the ground, examine the same, hear the parties, their proofs and allegations, and determine whether the water of the stream passing through the land of the plaintiff into the land of the defendant, has been raised or maintained by the latter higher than it ought to be; and if so, they shall determine and award what damages shall be paid to the plaintiff therefor, up to the date of their award. They shall fix, by one or more permanent marks to be made by them and particularly described in their award, the height to which the defendant is entitled to flow the water of said stream back upon the land of the plaintiff.
    “ They shall meet at the dwelling-house of the defendant, on Saturday, October 28th 1871, at nine o’clock, A. M., and the award of any two of them agreeing shall be final, without appeal.”
    The referees made this award:—
    “ And now on the 28th day of October, A. D. 1871, The arbitrators within named all met, at the place and near the time appointed, and all of them being first affirmed according to law, they went upon the ground, examined the premises, held a session at the house of the defendant, and having heard the evidence and allegations of the parties, who were represented by counsel, they adjourned to meet at the house of the defendant on the 16th day of November, A. d. 1871.
    “ On said day two of the arbitrators met at the time and place appointed, to wit, Elijah F. Pennypacker and George Walters, and the waters of French creek being much swollen by recent rains they postponed the further consideration of the case until the spring of 1872 next following.
    “May 25th 1872. Two of the arbitrators again met at or near ten o’clock, at the house of the plaintiff, to wit, Elijah F. Penny-packer and George Walter — Enoch Harlan not being present in consequence of being severely sick. They again proceeded to examine the premises, and had the water drawn down so as to expose the remains of an alleged fish-dam, and adjourned to meet again at the house of the defendant, May 28th 1872, at two o’clock, p. M.
    “ May 28th 1872. Said two arbitrators met at the time and place proposed, and after fully considering all the facts and circumstances in connection with the case, they do award and determine that the defendant has the right and is entitled to the privilege in accordance with the provisions of a certain agreement entered into April 28th 1804, between Samuel Root and Daniel Root of the first part, and William Shuler of the second part, to raise and flow back the waters of the dam upon the lands of the plaintiff up to within six inches of the under side of an iron bolt, 11-16 inches in diameter, driven in a hole drilled in a large rock; situated on lands conveyed by John Hoffecker to defendant. And we further award and determine that in our opinion there is nothing due to the plaintiff by the defendant by way of damage.
    “Witness our hands this 28th day of May, A. D. 1872.
    “E. F. Penntpacker.
    “ Geo. Walters.”
    The plaintiff filed these exceptions to the award:—
    “ 1. All the referees met upon the ground, viewed the premises, and heard all the testimony that the parties had to produce, and the arguments of counsel, on the 28th of October 1871, and considering that the defendant’s dam was higher than it ought to be, adjourned to another day for the purpose of deciding the case and fixing the marks to which the defendant had the right to raise the water. The severity of the weather prevented anything further being done till the following spring.
    “2. On the 25th of May 1872, two of the referees met again upon the ground for the purpose of proceeding in the discharge of their duties, and on that day, or on the 28th of May 1872, to which they adjourned, they opened the case and heard further testimony on the part of the defendant, without the consent of the plaintiff, and against his protest and in the absence of counsel.
    “ 3. 'The two surviving referees have no authority without consent, to open the case or hear further testimony, and if they could legally proceed at all, it could only be to make the award to which all had agreed at the time of their first meeting.
    “ John Bartolett.”
    The court (Butler, P. J.) overruled the exceptions, confirmed the award, and entered judgment on it. This was assigned for error on the removal, by the plaintiff, of the record to the Supreme Court.

      R. T. Cornwell and W. Darlington, for plaintiff in error. —
    All the referees should have heard the case: Painter v. Kistler, 9 P. F. Smith 331; each party having a right to the benefit of the observation and suggestions of all: Backus’s Appeal, 8 Id. 186. An authority given to more than one cannot be executed by fewer than the whole number, although one die or refuse: Paley on Agency 177; Potter v. Sterrett, 12 Harris 411; Russell v. Gray, 6 S. & R. 145. The award must be according to the submission: McCracken v. Clarke, 7 Casey 498.

      W. B. Waddell and P. Frazer Smith (with whom was 6r. F. Smith), for defendant in error.
    Awards of referees being domestic proceedings for composing strife, are favored, and every legitimate presumption will be made to sustain them, and technical objections not be heard: Rogers v. Playford, 2 Jones 181; McAdams v. Stilwell, 1 Harris 90, 97. So a proceeding which has to be submitted for the approval of the court, has been so submitted, and has been approved, will be presumed to be right. In such case, omnia prcesumuntur rite esse acta.

    It is to be conclusively presumed that a judicial tribunal will not decide what it knows to be wrong, and if on its face the proceeding was wrong and the court heard and considered an application to set the award aside; and afterward approved it, there can be no other conclusion, than that there was that in the case which showed that the award was right as e. g. that the parties consented that the case should be considered by two: Kline v. Guthart, 2 Penn. R. 490; Browning v. McManus, 1 Wharton 177; Rogers v. Playford, supra; Buckman v. Davis, 4 Casey 211.
   The opinion of the court was delivered, March 17th 1873, by

Mercur, J.

This was an. action on the cas.e for raising the defendant’s dam too high, and setting back the water upon plaintiff’s land.

The parties agreed to refer all matters in variance between them to three persons named, the award of any two of them to be final.

The report signed by two of the arbitrators shows that all three of them met the parties and their counsel upon the 28th October 1871, went upon the ground, examined the premises, heard the evidence and allegations of the parties, and then adjourned to meet on the 16th November 1871. On said day two of the arbitrators met, and in consequence of the waters being much swollen by recent rains, they “postponed the further consideration of the case until the spring of 1872.” May 25th 1872, said two referees met, the other arbitrator “ not being present in consequence of being severely sick.” The two proceeded again to examine the premises, causing the water to be drawn down so as to expose the remains of an alleged fish-dam, and then adjourned to the 28th May 1872. The said two arbitrators met in pursuance of their adjournment upon the 28th of May, “and after fully considering all the facts and circumstances in connection with the case,” did award and determine, and completed and signed the report.

To this report the plaintiff filed three exceptions. The first and second alleged matters of fact not shown by the report. The third was to the action and award of the two referees in the absence of the third. The court overruled them and confirmed the report. To this decision of the court the plaintiff took no exception at the time; but sued out this writ of error. Afterwards, without the request of either party, the court filed an opinion. Several facts are therein averred that do not otherwise appear. This opinion so filed is no part of the record, and the facts therein alleged cannot be considered: Lancaster v. DeNormandie, 1 Whart. 49 ; Moyer v. Germantown R. R. Co., 3 W. & S. 91; Meese et al. v. Levis, et al., 1 Harris 384.

The validity of this award must be determined by the record alone. An authority given to three cannot be executed by two: Russell v. Gray, 6 S. & R. 145; Potter v. Sterrett, 12 Harris 412. All the arbitrators must hear the case and deliberate: Backus’s Appeal, 8 P. F. Smith 186. It was said in Robinson v. Bickley, 6 Casey 384, and again in Painter v. Kistler, 9 P. F. Smith 331, that it is not necessary it should appear on the face of the award to have been so done; but if a majority have power to make an award and do make one the presumption is that the hearing, consultation and execution were regular, and that the minority have refused to join in the award. This, however, is a presumption only of a fact. Like other presumptions of fact it may be overcome by competent and sufiicient evidence. In this case it is overthrown by the record evidence. The award distinctly • shows that the third arbitrator was present at the first meeting only. At the three subsequent meetings two only of the arbitrators met. The question then is, did the third arbitratpr so far participate in the hearing and deliberation, as to make the award of the two valid ?

Much of the evidence was to be acquired by an examination of the premises. A very important part of the award was to establish permanent marks on the ground. The report shows that the water was drawn down; the remains of the old dam were examined ; and the iron bolt was driven or adopted by the two arbitrators only. The third arbitrator was not present. He was not consulted in regard to them. He had no knowledge that they were done. The two only consulted together. They alone considered and deliberated. They alone passed upon the question of damages down to the date of the award. They alone decided the case, seven months after they had held any conversation with the other arbitrator. The facts do not present such a joint consideration and deliberation as the law requires. The learned judge erred in entering judgment upon the award.

Judgment reversed, and the award of the arbitrators is set aside.


source: Caselaw Access Project

author: Mercur, J.

license: Public Domain

text:
    Youngman versus Walter.
    1. Plaintiff sued on a note; the rules of court required only that the affidavit of defence should set out “ the nature and character ” of the defence ; in his affidavit defendant averred, that he and plaintiff were partners and he was induced to sign the note, upon the representation, that the plaintiff had received for the firm twice the amount of the note of a ward’s money; defendant averred, for reasons stated in the affidavit, that he believed that amount had not been received: Held, that this was an averment that the note was executed on a false statement and judgment should not have been entered against defendant for the full amount of the note.
    January 28th 1873.
    Before Read, C. J., Agnew, Williams, and Mercuu, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Union county: No. 186, to January Term 1872.-
    This was an action brought September 13th 1870, by Jesse M. Walter, guardian, &c., of Sarah J. Walter, and now for her use, against John Youngman.
    The following is the instrument on which the suit was brought:—
    “$865.66.
    “Winfield, June 29th 1863. One day after date I promise to pay Jesse M. Walter, guardian of Rosanna, Margaret and Sarah Jane Walter, the sum of eight hundred and sixty-five dollars and sixty-six cents, without defalcation, for value received, being for one-half of the sum Jesse M. Walter, guardian as aforesaid, received as committee of Abraham C. Eyer, who was committee of Abraham Eyer, Sr., deceased, the whole sum going to the use of Youngman and Walter, myself and Jesse M. Walter constituting said firm. Witness my hand and seal this twenty-ninth day of June, in the year of our Lord one thousand eight hundred and sixty-three, with interest on the above from the 6th of June 1861.
    [Signed] “ John Youngman.” [l.s.]
    By endorsement on the note J. M. Walter assigned it to Sarah J. Walter, on the 6th of August 1870.
    A declaration in debt in the common form was filed. The defendant, November 1st 1870, filed an affidavit of defence as follows :—
    “ John Youngman, the defendant, under oath deposes and says that he has a defence to the whole of the plaintiff’s claim, which is as follows, to wit, — 'That Jesse M. Walter at the time the note was given was and still is a partner of the defendant; that plaintiff, as said partner, stated to defendant that the former had received the amount of the moneys specified in the note upon which suit was brought; that your affiant thinks the firm did not receive the amount specified in said note, as the note sued in No. 82, September Term 1870, of this court, which was for moneys due to the same parties, added to this note amounts to more than one-half the wards mentioned in the note were entitled to receive; that their whole share was $2540.76; the said firm having received $1427, for which the note in No. 82, September Term 1870, was given for one-half,, or $713.50, thus leaving the one-half amount received by said firm for which this note was given $556.88 ; that your petitioner never did owe as an individual one dollar of the amount named in said note; that said moneys were all owing by the said firm of Youngman & Walter; that two-thirds of said note have been paid in cash by said firm to the plaintiff, Jesse M. Walter; that the affiant is informed and believes that the business of the firm of Youngman & Walter cannot be settled in this suit, as the partnership still exists, and that your petitioner believes upon a settlement of the accounts of said firm that the plaintiff will owe the affiant more than the amount of said note; that the affiant expects to prove all the facts herein set forth in the trial of the cause. John Youngman.”
    It appeared by the docket entries that on the 19th of December 1870, the attorneys for the plaintiff obtained a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence. On the 25th of February 1871, a supplemental affidavit of defence was filed, and on the 1st of December 1871, the rule was made absolute and judgment was entered for the plaintiff for $1400.50. On the 23d of the same month a writ of error was filed.
    Afterwards, on the 16th of January 1872, Judge Woods, who was president of the court when the rule was taken, made a certificate not filed amongst the records of the court below, but appearing in the paper-book of the plaintiff in error, and referred to in the opinion of the Supreme Court. In this certificate the judge stated that in deciding on the rule for judgment he had before him only the original affidavit of defence, and that if the supplemental affidavit was in his hands it had been mislaid and that he could not find it.
    On the 23d of December 1872, the defendant made another affidavit, which, with the certificate of his counsel Hon. J. C. Bucher, now president of the court below, is as follows:—
    “ John Youngman, being duly sworn according to law, doth depose and say that the substance of the supplemental affidavit of defence drawn up by the Hon. Joseph C. Bucher, attorney for defendant, and sworn to by deponent, and filed and handed to Hon. Samuel S. Woods before he made his decision, which has been mislaid or lost by the said Hon. Samuel S. Woods, and which he states he never acted on, was in substance as follows:—
    “ That the note in suit was given for more than was due. That two-thirds of the amount of the note in suit was paid to the plaintiff, Jesse M. Walter, by the defendant, in cash, before the bringing of this suit and prior to the transfer of the same to Sarah Jane Walter, the present equitable plaintiff, — all of which defendant expects to be able to prove on the trial of the cause.
    “John Youngman.”
    “ I do certify that the foregoing affidavit of John Youngman, plaintiff in error and defendant below, contains the substance of the supplemental affidavit of defence which I, as attorney of said Youngman, filed on the 25th of February 1871, before the argument of the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, and handed to Judge Woods before he made his decision, which supplemental affidavit of defence, according to statement of Judge Woods, was mislaid or lost and was not before him when he made his decision.
    Jos. C. Bucher.”
    The rules of the Court of Common Pleas of Union county require that the affidavit of defence shall set forth “ the nature and character of the same.”
    The error assigned was — that the court below erred in entering judgment for want of a sufficient affidavit of defence.

      (?. F. Miller, for plaintiff in error.
    All that is required in an affidavit of defence is that it should exhibit a primd facie defence: Leibersperger v. The Savings Bank, 6 Casey 531; Eyre v. Yohe, 17 P. F. Smith 477.

      J. M. Linn, for defendant in error.
    An affidavit of defence must exclude the possibility of evasion: Comly v. Bryan, 5 Wharton 261.
   The opinion of the court was delivered, February 24th 1873, by

Mercur, J.

The alleged error is, that the court entered judgment for want of a sufficient affidavit of defence. The plaintiff claimed upon a note executed by John Youngman, under seal, payable to Jesse M. Walter, guardian of Rosanna,'Margaret and Sarah Jane Walter, for $865.66, being for one-half the sum which said Jesse, as guardian, had received for himself and said Young-man. The obligation was assigned to said Sarah Jane before suit was brought. The original affidavit of defence filed was not drawn with great clearness and precision. Rejecting much irrelevant matter therein contained, we understand the defendant to aver that he and the plaintiff were at the time of the execution of the note, and still are, copartners. That he was induced to sign the note under the representation of the plaintiff that he had received twice that amount of his ward’s money for the use of their said firm ; but now he gives some reasons why he does not believe the firm received the sum alleged. Thus substantially affirming that he was induced to execute the note under a false statement of existing facts, which might establish a partial failure of consideration. He further averred that two-thirds of said note had been paid in cash by.said firm to said plaintiff. In his supplemental affidavit he distinctly avers, that the note was given for more than was due, and that two-thirds of the amount of the note had been paid to the plaintiff by the defendant in cash before the bringing of the suit, and prior to the assignment of the note to the equitable plaintiffs, all of which he expected to be able to prove upon trial. It appears by the certificate of the learned judge that he did not have the supplemental affidavit before him when he directed judgment to be entered. Considering the original affidavit insufficient he ordered j udgment to be entered against the defendant for the full amount of the plaintiff’s claim. In this Ave think the court erred. The rules of court require the affidavit to set forth the nature and character of the defence. The defendant does aver that he has a defence to the whole of the plaintiff’s claim. The nature and character thereof is an absence in part of consideration for the note and an actual payment in cash, of two-thirds of the note. While the extent of the failure of consideration is vague and indefinite, yet the averment of the amount paid upon the note in cash is sufficiently positive and specific if proved to establish a defence against two-thirds of the amount of the claim.

Judgment is reversed, and procedendo awarded.


author: Williams, J.

text:
    Menges et al. versus Frick et al.

    ]. A debt was due October 6th 1862, suit was brought October 6th 1868 ; Held, not barred by the statute.
    2. When suit is brought within six years after the day on which the cause of action arose that day is to be excluded from the computation.
    3. When a thing is tobe done within a certain time from a prior date and the party is deprived of a right by its omission, the day from which the count is to be made is excluded from the computation.
    January 29th 1873.
    Before Bead, C. J., Agnew, Williams and Merour, JJ. Sharswood, J., at Nisi Prius.
    • Error to the Court of Common Pleas of Union county: No. 77J, to July Term 1872.
    This was an action of assumpsit brought October 6th 1868, by John Menges and Solomon Menges against Henry Frick and others, trading as Frick, Billmeyer & Co. The cause of action was a book-account for lumber furnished by the plaintiffs to the defendants.' The declaration was in the common counts; the plaintiffs also filed a copy of their account, charging defendants with lumber furnished them. The account was:—

      “ Lewisburg, October 7th 1862.
    “Erick, Billmeyer & Co. bought of John & Sol. Menges.
    June 8. Timber, * * * . . . $88.23
    Oct. 6. Timber, * *• * . . . . 147.36
    --$235.59
    June 8. By Cash, ...... $50.00
    Sept. 24. Do. .....100.00
    -$150.00
    Due, .........$85.59
    The pleas were non assumpsit, set-off and the Statute of Limitations.
    The case was tried February 22d 1871, before Woods, P. J.
    The plaintiffs gave evidence that the foregoing account was in the handwriting of a clerk of the defendants, and had been handed to the plaintiffs as a copy taken from defendants] books.
    The defendants gave evidence that they had bought the timber in the foregoing bill from John Menges alone, and their firm had never had a contract for timber with John and Solomon Menges until October 1862; defendants’ books showed no entry of an account with them.
    Defendants’ books showed this account:—
    “ Oct. 6th ’62, John Menges, Cr.
    By 783 ft. oak on June 8th 1862, C.H. . $ 86.13
    “ 30 ft. pine “ “ “ “ 7c. ' . 2.10
    “ 551 ft. “ Oct. 6th 1862, 7c. . . 38.57
    “ 989 “ oak “ “ “ 11c. . . 108.79
    $235.59”
    Both parties gave other evidence in support of their respective cases.
    The following are points of the plaintiffs with their answers :—
    2. Even if the timber was to be paid for on the day of delivery (October 6th 1862), the defendants had the whole of that day to make payments, and plaintiffs could not sue until the next day, (October 7th 1862), from which latter date the statute would begin to run, and is no bar.
    Answer: “ Where personal property is sold and nothing said as to the time when it is to be paid for, it is payable immediately on the delivery, and an action would accrue immediately, and the party delivering the goods need not wait until the next day to. bring suit, if the purchaser does not pay for the property at once on the delivery. We therefore refuse to answer this point as requested.”

      3. The statute in this case could not commence running until the plaintiffs’ right to institute suit had arrived, which in no event was prior to the 7th of October 1862, and the statute is therefore no bar to plaintiffs’ recovery.
    Answer: “ The first part of this point is correct, to wit: ‘ That the statute in this ease did not commence running until the plaintiffs’ right to institute suit had arrived,’ but we cannot say that this right did not commence before the 7th day of October 1862.”
    The defendants’ point and the answer were: — ■
    The proof being clear and undisputed, that the last item in plaintiffs’ claim was October 6th 1862, and the suit was instituted on the 6th day of October, 1868, which was one day too late, and the verdict must be for the defendants.
    Answer: “ This is so, and we answer it as requested.”
    The court charged : — ■
    “ The defendants rely for their defence mainly on the Statute of Limitations. From the showing of the plaintiffs this would be an available defence for this action, and the plaintiffs cannot recover the account claimed. We have answered the points of both plaintiffs and defendants to this effect.”
    The verdict was for the defendants; the plaintiffs took a writ of error, and assigned for error the answers to the points and the charge of the court.

      G. F. Miller (with whom was J. Porter), for plaintiffs in error.
    In computing the time for the running of the Statute of Limitations, the day on which the debt fell due is to be excluded : Overton v. Tyler, 3 Barr 346; Sims v. Hampton, 1 S. & R. 411; Cromelien v. Brink, 5 Casey 522; Pugh v. Duke of Leeds, Cowper 714; Webb v. Fairmaner, 3 M. & W. 473; Young v. Higgon, 6 Id. 49; Robinson v. Waddington, 13 A. & E. (N. S.) 753 : Green’s Appeal, 6 W. & S. 327; Marks v. Russel, 4 Wright 372.

      J. M. Linn, for defendants in error.
    The suit must be commenced within six years from the time the cause of action accrues : Vanhorn v. Scott, 4 Casey 316; Overton v. Tracey, 14 S. & R. 311. This is, therefore, to be taken to be the understanding of the parties: Thompson v. Ketcham, 8 Johns. 189. The presumption is that payment for goods sold is to be on demand : Warren v. Wheeler, 8 Metc. 97. The statute runs from the date of a note payable on demand: Tidd’s Prac. 17 ; Taylor v. Whitman, 3 Grant 138; Girard Bank v. Penn Township Bank, 3 Wright 92; 2 Kent Com. 496. The defendants had not the whole of October 6th to pay, but were bound to pay immediately : Presbrey v. Williams, 15 Mass. 193; Glassington v. Rawlins, 3 East 407.
   The opinion of the court was delivered May 17th 1873, by

Williams, J.

The only question necessary to be considered in this case is, was the plaintiffs’ action barred by the Statute of Limitations ? The last item of timber in the account sued on was delivered on the 6th of October 1862, and the action was commenced on the 6th of October 1868. The act provides that actions for account shall be commenced and sued “ within six years next after the cause of such actions or suit, and not after.” There can be no doubt that the cause of action in this case arose on the day the timber was delivered. If that day is to be excluded from the reckoning, the six years had not expired when the suit was commenced. But why, even if the words of the act are to receive a strict and literal construction, should it not be excluded ? “ Within six years next after the cause of action or suit,” as applied to the facts of this case, must necessarily mean within six years next after the day on which the timber was delivered. The day of the delivery must, therefore, be excluded in counting the time within which the action may be brought. If suit may be commenced within six years next after the day on which the cause of action arose, then it is too plain for argument that that day is not to bo included in the computation. But if there could be any doubt as to the proper construction and meaning of the act, the rule must now be regarded as settled that when an Act of Assembly requires a thing to be done within a certain time from or after a prior date, and deprives the party of a right for omitting it, the most liberal construction is to be chosen, and the furthest time given from which the reckoning is to be made.- In other words, the day from or after which the count is to be made, is to be excluded in computing the time within which the act may be done: Green’s App., 6 W. & S. 327; Cromelien v. Brink, 5 Casey 522; Marks’s Ex. v. Russell, 4 Wright 372; Brisben v. Wilson, 10 P. F. Smith 452 ; Duffy v. Ogden, 14 Id. 240. The court below was, therefore, in error in instructing the jury that the Statute of Limitations is an available defence to this action, and the plaintiffs cannot recover the account claimed.

J udgment reversed, and a venire facias de novo awarded.


text:
    Richard versus Brehm.
    1. Richard cohabited with a woman as his wife for many years ; they addressed each other as husband and wife; spoke of each other, and executed deeds with acknowledgments as such ; she made a will calling herself his wife and devising to him as her husband. In ejectment against him by a devisee under a subsequent will, he, claiming by the curtesy, testified: “the marriage ceremony never was performed only by mutual consent, we lived- as man and wife. I promised to marry her.” Held, to be evidence of marriage as between themselves as well as to third persons.
    2. The consent of the' parties is all that is required for a valid marriage.

      3. If the contract be made per verba defuturo and be followed by consummation, it is a valid marraige.
    4. Marriage may be proved by reputation, declarations and conduct of the parties: and other circumstances usually accompanying the relation.
    5. Cohabitation and reputation are necessary to establish a presumption of marriage where there is no proof of actual marriage.
    February 3d 1873.
    Before Read, C. J., Sharswood, Williams and Mercur, JJ. Agnew, J., at Nisi Prius.
    Certificate from Nisi Prius: No. 234, to July Term 1870.
    This was an action of ejectment for a messuage and three lots of ground in Philadelphia, brought July 20th 1870, by Richard H. Brehm against John H. Richard.
    The plaintiff claimed as devisee of Mary E. Richard; the defendant claimed as tenant by the curtesy as surviving husband of the same Mary E. Richard.
    The question in the case was, whether Mary E. Richard had been the wife of the defendant, John H. Richard.
    The cause was tried at Nisi Prius, February 6th 1871, before Thompson, C. J.
    The plaintiff gave evidence showing that the title to the premises was in Mary E. Richard at the time of her death.
    Also her will dated May 24th 1870, and proved July 5th 1870, in which she described herself as “ Mary Elizabeth Richard wife of John H. Richard,” and by which she devised “ all my real estate situate in Philadelphia or elsewhere to my nephew Richard Holbrook Brehm,” in fee.
    The plaintiff having closed, the defendant testified that in 1831 he became acquainted with Mary E. Richard: “ I am no relation to her, only she was my wife. I commenced to live with her on Second street near Carbon House; next to Catharine street near Second; lived there two years; next lived in Christian street; kept men; lived there 18 months.. Went to Charleston, South Carolina; lived there from 1845 to 1848; her mother and father along. Came back and lived on Callowhill street; rented from Mr. Sellers ; I went to Agassiz in Cambridge. Went to Washington ; and then next to Falls of Schuylkill; lived 10 years before these properties were bought.”
    It was then proposed to ask defendant: If after the purchase he made a will in Mary E. Richard’s presence and delivered it to her and she made a will and delivered it to him ?
    Also: Under what circumstances the will now handed to witness purporting to be a will of Mrs. Richard, prior in date to that given in evidence, was delivered to him ?
    The questions were each objected to by the plaintiff, severally rejected by the court, and bills of exceptions sealed for the defendant.
    On cross-examination defendant said: “ The marriage ceremony was never performed, only by mutual consent; we lived as man and wife. I promised to marry her before we went to Charleston, about two weeks. Nobody knows that we were not married.”
    The defendant then gave in evidence a will of Mary E. Richard, dated March 27th 1858, executed in the presence of three witnesses.
    The will commenced: “ Be it remembered that I, Mary Elizabeth Richard, wife of John H. Richard * * * do make and. publish my last will,” &c.
    She then directed the payment of her debts and proceeded:—
    “All the rest * * * of my estate * * * I do give * * *' unto my said husband, John H. Richard,” &c.
    The defendant gave evidence by a large number of witnesses that John H. Richard and Mary E. Richard lived together as husband and wife for many years; that they spoke of each other as husband and wife; that she said he sent her money for all her wants.
    Mrs. Young, sister of Mrs. Richard, testified, that Richard told her Mary was not his wife, and never had been; he said hq would expose her. On being told this Mrs. Richard said Richard had promised not to tell it; he said everything was hers; before this conversation they had lived together as man and wife; he said he thought it as good as any way.
    The defendant gave in evidence, a mortgage executed and acknowledged by Richard and wife; three letters from him to “ Mrs. Richard,” dated January 1856, January 1858 and Eebfhary 1858, also deeds of the premises executed to her as his wife.
    The plaintiff’s first point was:—
    If the jury believe that the defendant was not married to the deceased; that he promised to marry her, and did not do so, then he has acquired no right, as her husband, to her real estate.
    The defendant’s first point was:—
    If the defendant was the husband of the testatrix, plaintiff cannot recover.
    The court charged: * * *
    “ To the first point on part of the plaintiff I assent. It has been proved by the defendant himself, that he never was married to the plaintiff’s testatrix, but that they lived and cohabited for many years as man and wife. While this constituted a marriage as to all the world in matters pertaining to business transactions, yet it has not that effect as between themselves. To the public, so living and cohabiting raises a conclusive presumption of marriage, for it may know nothing to the contrary, but a party to the presumptive marriage who fully knows that no marriage exists and who has lived in violation of law in this respect, does not stand on that footing, and he cannot claim the incidents of marriage when no marriage existed. To allow this, would be to permit him to take advantage of his own wrong, a thing the law always refuses to do. The defendant made no mistake when he testified that he and the testatrix were never married. Cohabitation did not as to either, amount to lawful marriage. They mutually agreed to live together, he said, and agreed to keep it a secret that they were not married. This was not a marriage as to them. If they had gone through a marriage ceremony in the presence of competent witnesses, I believe it would have been sufficient in law for all the purposes of a legal marriage and sufficient to have entitled the defendant to the possession of the property in question, as tenant by the curtesy, but they did not do this. The defendant ought not to expect immunity from the responsibilities of married life and possess its benefits also. For instance, under the facts disclosed he could not have been made to suffer the penalties of bigamy if he had married another woman during his supposed wife’s life, nor be punished for adultery if he had committed that crime, for in these cases actual, not presumptive marriage must be proved. To this extent, we would loosen some of the most important bonds of matrimony, if we were to hold the defendant entitled to the incidents of actual marriage, although there was none without its responsibilities. The jury can have no difficulty in finding from the testimony the state of facts here referred to. We hear them from the defendant on the stand, and from the testimony of the sisters of the testatrix. Both concur that they were never married and were to keep the fact secret. If this be so the defendant cannot hold the property in question as tenant by the curtesy. About this we see no ground to doubt. We have legislation very particularly regulating marriage in this state, and people complying with it will be in no danger of difficulties like the present; if they do not, they must abide the consequences. * * *

      “ To defendant’s first point I cannot assent. It is true as a general rule. But if there was no actual marriage between defendant and the testatrix, no such relation as husband and wife existed as to them, and defendant would not be entitled to hold the property in question as tenant by the curtesy. This is more fully explained in answer to plaintiff’s point, which is adopted as a further answer to this point.” * * *
    The verdict was for the plaintiff. The defendant had the case certified to the court in banc, and assigned for error:
    2, 3. The rejection of his offers of evidence before stated.
    8. The answers to the plaintiff’s first point and the defendant’s first point.

      D. W. Sellers, for plaintiff in error.
    The concurrent publication of the will of the defendant as husband, and of Mary Richard as wife, was a celebration and proclamation of the marriage: Vincent’s Appeal, 10 P. F. Smith 228. Taking each other as man and wife, with cohabitation and reputation, constituted a marriage: Com. v. Stump, 3 P. F. Smith 132; Physick’s Estate, 2 Brewster 179; Vincent’s Appeal, 10 P. F. Smith 228; Omohundro’s Estate, 16 Id. 113.

      W. L. Hirst, for defendant in error.
   The opinion of the court was delivered, May 17th 1873, by

Mercur, J.

This was an action of ejectment in which the plaintiff brought suit to recover as the devisee of Mary E. Richard. Defence was made principally upon the ground that the defendant was the surviving husband of said Mary. That fact was denied and presented the controlling question in the case.

Marriage is a civil contract jure gentium, to the validity of which the consent of parties, able to contract, is all that is required by natural or public law. If the contract is made per verba de prcesenti, though it is not consummated by cohabitation, or if it be made per verba de futuro, and be followed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary: 2 Greenl. Evid., § 460. Marriage is a civil contract which may be completed by any words in the present time, without regard to form: Hantz v. Sealy, 6 Binn. 405. The fact of marriage tiren may be proved and established by competent and satisfactory evidence.

What kind of evidence is held to be satisfactory ? Marriage may be proved in civil cases, by reputation, declarations, and conduct of the parties, and other circumstances usually accompanying that relation: 2 Greenleaf’s Evid. § 462. Eor civil purposes reputation and cohabitation are sufficient evidence of marriage: Senser et al. v. Bower et ux., 1 Penna. Rep. 450. In all civil cases involving merely the right of property the. fact of marriage may be proved by long-continued cohabitation as man and wife: Thorndell v. Morrison, 1 Casey 326. Both cohabitation and reputation are necessary to establish a presumption of marriage, where there is no proof of actual marriage; Commonwealth v. Stump, 3 P. F. Smith 132. Marriage is in law a civil contract, not requiring any particular form of solemnization before officers of church or state: Idem. Unequivocal and frequent admissions of marriage, accompanied by long-continued cohabitation and reputation, are frequently most satisfactory evidence of marriage: Vincent’s Appeal, 10 P. F. Smith 228.

Ought the evidence in this case to have been submitted to the jury to find whether the marriage relation existed between John H. Richard and Mary E. Richard ? It shows that from about the year 1832 down to the time of her death in 1870, they lived and cohabited together as man and wife. They recognised and addressed each other as husband and as wife. She called him her husband, he called her his wife. During all that time she bore his name. The three several deeds given in evidence by the plaintiff below, bearing date in 1856 and 1857, show' that the land was conveyed to her as the wife of John H. Diehard. Upon the 27th of March 1858, she duly executed, in the presence of three witnesses, a last will and testament, in which she describes herself as “wife of John H. Diehard.” She therein gives all the residue and remainder of her estate “ unto my said husband, John H. Diehard, his heirs,” &c.

Again, in the very will, under which the plaintiff claims, of the 24th of May 1870, she describes herself as “wife of John H. Diehard.”

More than a dozen different witnesses who had been acquainted with them for a time varying from eight to eighteen years, concur in testifying that during all that time they lived together as man and wife, and were so reputed by all their acquaintances. Thus, for nearly forty years, all those evidences of reputation, declarations, and conduct, which usually accompany the marriage relation, are clearly shown to have existed. The evidence which the learned judge held sufficient to overcome this long-continued and consistent life of the parties, was their separate declarations upon one occasion not long prior to her death, and his testimony upon the trial, that they had never been married. The declarations are proven by a sister of Mrs. Diehard, w’ho testifies that was the first knowledge she had of it; and he testifies that the marriage ceremony was never performed. He swears, however, “ by mutual consent we lived as man and wife;” and again, “ I am no relation to her, only she was my wife.” Again he said, “I promised to marry her. Nobody knows that we were not married.” It seems to us that the whole testimony is reconcilable, by assuming him to mean that no formal marriage ceremony had been performed by any third person uniting them in marriage; but that they had agreed to a marriage. That they recognised it as a marriage contract, and had always recognised and fulfilled it as such. His declaration made upon one occasion, when angry at his wife, to her sister, that they were not married, after more than thirty-five years of apparent wedded life, was certainly very weak evidence to rebut the presumption of marriage. Nor did his testimony upon the trial, necessarily go any further than to negative the one form of entering into a marriage contract. It did not prechide the jury from finding that a valid marriage contract had otherwise been entered into between the parties. The evidence was amply sufficient to have submitted this as a question of fact to the jury. Whether the agreement of marriage preceded or followed the first sexual intercourse, whether it was five or ten y'ears thereafter, if clearly made and proved, it established a valid marriage. The learned judge therefore erred in virtually taking the case from the jury, and in saying this was not a marriage a.s to them. lie should have affirmed the first point submitted by the defendant below, and to the extent we have indicated qualified the first point submitted by the plaintiff.

We think the evidence referred to in the second and third assignments of error should have been received, so far as it tends to prove the acts and declarations of the parties indicating a subsisting marriage relation existing between them. The other assignments of error are not sustained.

Judgment reversed, and a venire facias de novo awarded.


author: Siiarswood, J.

text:
    Blaylock’s Appeal.
    1. B. was a special partner in the firm of H. & S. who owned the real estate, which was about to be sold by the sheriff, it was agreed that if B. would buy the property at sheriff's sale, S. would procure D. a lien-holder to accept from B. a mortgage on the property for his debt and if B. should sell at an advance he would apply the excess to the payment of the firm debts and would divide any further excess with S. Z. purchased for B. for enough to pay D’s lien and costs, which were paid in cash: the deed was made to Z. Meld, that the property was in trust for the purposes of the agreement, and, the firm debts having been paid, Z. was ordered to convey to B. for the trust.
    2. The income until the sale was to be applied to reimburse B. for the purchase-money: and when sold B. to account for the rents.
    3. S. was not entitled to a conveyance of the moiety subject to B.’s advance ; but B. was enjoined from selling at private sale without the consent of S. or at public sale without notice to S.
    February 3d 1874.
    Before Read, C. J., Sharswood., Williams and Mercur, JJ. Agnew, J., at Nisi Prius.
    Appeal from the decree at Nisi Prius: No. 350, to July Term 1869: In Equity.
    On the 20th of July 1869, Henry Samuel filed a bill against Lewis Blaylock, George W. Zeigler and D. P. Cubberly. The bill set out:—
    1. A limited partnership for manufacturing hats had been formed January 1st 1867, in which Samuel (plaintiff) and P. Herst were general partners, and Blaylock (defendant) special partner.
    2. Plaintiff and Herst owned a lot of ground on Cherry street, &c., Philadelphia, on which wore a factory and warerooms, where the firm of Herst & Samuel transacted their business.
    3. In the winter of 1868-1869 the firm became embarrassed; several judgments had been recovered against them; — one in favor of David Samuel, for $10,250 ; another in favor of Eli Keen, for $1705.03; — under the second judgment the property had been taken in execution and was advertised to be sold by the sheriff on the 3d of May 1869.

      4. The property being worth more than the liens against it, the plaintiff and Herst were desirous of saving it for the benefit of their creditors, and, if possible, for the firm after the payment of their debts; in this, before the sale, Blaylock appeared to acquiesce, and proposed to the plaintiff and Herst to buy the property at sheriff’s sale to effect those purposes; in consequence, Blaylock, Herst, the plaintiff with his counsel and the counsel of the execution-creditor, met a few days before May 3d 1869, when it was agreed between Blaylock, Herst and the plaintiff, that if the property should bring at sheriff’s sale no more than enough to cover David Samuel’s lien and the expenses of the sheriff’s sale, Blaylock would buy it and hold it for the benefit of the creditors of the firm of Herst & Samuel, and after the payment of the firm debts, then for the benefit of plaintiff and Blaylock. To enable Blaylock to do this, David Samuel agreed that if Blaylock should become the purchaser, he (Samuel) would receive for his debt a new lien on the property from the purchaser; the agreement between the plaintiff, Herst and Blaylock was reduced to writing and signed by Blaylock.
    5. Blaylock, in violation of his agreement and in fraud of the plaintiff, colluded and conspired with Zeigler to buy the property at sheriff’s sale for $10,800 — -just enough to pay David Samuel’s lien and the expenses of sale; the premises were in fact bought by Blaylock, he furnishing the money, and Zeigler was merely his instrument, covinously allowing his name to be used to assist Blaylock in his fraud on the plaintiff and Herst.
    6. The plaintiff, confiding in the good faith of Blaylock and believing that he would carry out the agreement, did not prepare himself to protect his interest at the sale as he could have done.
    7. All the debts of the firm of Herst & Samuel had been paid.
    8. The property was worth much more than $10,800 and prior encumbrances; and, as plaintiff was informed and believed, Blaylock had entered into an arrangement to sell it to the defendant Cubberly for $40,000, a part of which had been paid by Cubberly, who had gone into possession.
    The prayers were that Blaylock and Zeigler be restrained from selling the property and executing a deed to Cubberly; that Cubberly be restrained from purchasing and accepting a conveyance; that Blaylock and Zeigler be declared trustees for the plaintiff and Blaylock in equal shares, subject to the $10,800 and prior encumbrances, and that Blaylock and Zeigler be decreed to eonvey to the plaintiff an undivided moiety of the property subject to the $10,800 and prior encumbrances; and for further relief.
    The agreement named in the proceedings “ Exhibit B.” and referred to in the bill was: — ■

      “ This agreement made between Philip Herst and Henry Samuel of the first part, and Lewis Blaylock of the second part, witnesseth: Whereas, a certain three-story brick factory, &c., have been taken in execution and are to be sold on the 3d day of May 1869, by the sheriff, &c., which said premises are bound by the lien of a judgment in favor of David Samuel for ten thousand dollars, exclusive of interest accrued thereon. And whereas, the said Lewis Blaylock intends to bid at the said sheriff’s sale for the said premises: Now the parties of the first part do agree with the party of the second part, that if the party of the second part should become the purchaser of the premises aforesaid at the said sheriff’s sale, that they, the parties of the first part, will procure the said David Samuel to accept from the said Lewis Blaylock, his bond, secured by mortgage upon the said premises, for the sum of ten thousand dollars, subject to the prior mortgage and ground-rents now on the said premises, to be made payable in instalments of two thousand dollars a year, in payment of so much of the judgment of the said David Samuel, and that upon the payment of the residue of the said judgment, the parties of the first part will procure the said David Samuel to enter satisfaction of record thereon, provided, &c., the said Lewis Blaylock, shall insure, &c., and in consideration thereof the said party of the second part does agree, &c., that if he should become the purchaser of said premises at the said sheriff’s sale, and should thereafter at any time, sell the said premises for a greater sum' than the price at which the same shall be so purchased by him, and the costs, charges, interest and expenses, suffered or expended by him in relation to the said premises after such purchase, that then he, the party of the second part, will apply such excess or net profit which may arise from such subsequent sale of the premises to the payment or settlement of the debts due by the said parties of the first part, as partners, under the firm of P. Herst & Samuel, and that if after such settlement or payment of said debts, any residue of the net profits aforesaid should remain, that such residue shall be equally divided between Henry Samuel, one of the parties of the first part, and him, the said Lewis Blaylock, the party of the second part.
    “ In witness whereof, the said parties hereto have hereunto set their hands and seals, this the day of A. D. 1869.
    [L. S.]
    [L. S.] '
    Lewis Blaylock, [l. s.]”
    Blaylock answered admitting the first, second, third and seventh paragraphs of the bill.
    4. He denied the fourth and averred, that he agreed if he purchased the property to hold it in trust for the firm, but did not agree to purchase at any price; he signed an agreement not in his possession which would determine his engagement.

      5. He denied that he combined with Zeigler or procured him to buy the property; respondent bid $10,600, which was as much as he was satisfied to bid; he did not know, when the property was struck down, that it was purchased by Zeigler; respondent had no interest in the property; he denied that he violated any agreement or contemplated or perpetrated a fraud on the plaintiff.
    6. He was ignorant of $he allegations of the sixth paragraph.
    8. He did not know that Zeigler had agreed to sell the property;, neither he nor Cubberly had paid respondent any money ; he was informed that Cubberly is in possession.
    Zeigler answered that he was ignorant of the averments in paragraphs one, two, three, four, six and seven, of the bill.
    5. He denied that he colluded or combined with- Blaylock to become purchaser of the property at sheriff’s sale; he attended the sale and purchased at his own instance ; there was no privity between him and Blaylock; he had no knowledge of the arrangement and agreement mentioned in paragraph five.
    8. He was exclusive owner of the property; had leased it to Cubberly for five years, with an option to him to purchase ; and being no party to any arrangement between plaintiff and Blaylock, he had been advised it was not material for him to answer further.
    Cubberly answered that he had no . knowledge of the matters alleged in the bill, except that he was tenant of the property for five years, with an option to purchase which he had not exercised; he had given no money to Blaylock.
    A replication was filed, and. an examiner appointed.
    On the coming in of his report, William M. Smith, Esq., was appointed master.
    The master reported amongst other things: * * * “It is shown conclusively by the testimony, that David Samuel had agreed to accept Blaylock’s bond and mortgage, had it been tendered him in lieu of the cash, for the amount which was due-to him by the firm, and the fact that it was to be a second mortgage with ground-rents and another mortgage ahead of it on the property, is, I think, sufficient to prove that David Samuel was perfectly willing to do anything to assist the firm out of their difficulties.
    “ I leave this part of the case therefore with the conclusion that the paper marked ‘Exhibit B,’ does not accurately and truly set forth the real agreement between these parties, and that even if it did, it presents no such a case as would refer the plaintiff exclusively and entirely to his action at law, and estop him from going into equity for the purpose of restraining the continuation of an alleged fraud upon his rights in the property, which is the subject of this controversy. * * *
    “ The weight of the evidence is sufficient to satisfy me:

      “ That the agreement was positive and distinct between all the parties that Blaylock should buy the property, and that he would buy it for himself and the other members of the firm ;
    “ That Blaylock himself originated the plan and personally proposed and urged it on the other partners, both of whom gave their consent to it, subsequently assisting him and co-operating with him as far as they could in carrying it out;
    “ That at Blaylock’s instance, and without the knowledge of the other partners, an alteration was made in the agreement before the sheriff's sale, whereby Herst was to be excluded from its benefits ; an alteration which was binding on Mr. Herst himself, only because he had ample notice of it, acquiesced in it, and never subsequently entered either objection to, or protest against it;
    “ That Blaylock actually became the purchaser at the sheriff’s sale, furnishing all the money, and using the name of Greorge W. Zeigler for the purpose;
    “ That while there is no positive evidence to show that the defendant Zeigler knew before the. sale all the terms of the agreement between Blaylock and his partners, there is enough to show that he acted throughout the whole operation as the friend and confidant of Blaylock, that he took the title to the property from the sheriff for Mr. Blaylock, that if he yet holds the title, he holds it for Blaylock, and that he has permitted the use of his name in every necessary way since the date of the sheriff’s sale for the purpose of giving a boná fide appearance to the transaction.
    “ The witness Herst says that Mr. Blaylock himself suggested that he should become the purchaser of the property; that Blaylock came to him and asked him whether he would not prefer that hs should buy the property and hold it for the benefit of all concerned ; that he and Henry Samuel and Blaylock conferred together on the subject, and that finally it was agreed that Blaylock should be permitted to buy without objection or opposition on their part, with the understanding that he should hold the property for the benefit of'all the members of the firm, subject nevertheless, only to tho claims of boná fide creditors. This was the trust, therefore, which was assumed by Blaylock. * * *
    u Recurring now to the only remaining, but most important question in the case, whether Blaylock actually did buy this property or not ? I think the evidence establishes the fact that he did so buy it; that he used Mr. Zeigler’s name for the purpose ; that he furnished all the money that was necessary for the operation, and by an arrangement between himself and Zeigler, procured the latter to take the title, in order to give a boná fide appearance to the transaction, and to deprive the plaintiff of all interest in the property or in the profits of the resale. * * *
    In the opinion of the master, therefore, it should be ordered, adjudged and decreed that Lewis Blaylock holds the real estate described in the bill, to wit:

      “ ‘ All that certain lot or piece of ground, with the buildings and improvements thereon erected, situated on the south side of Cherry street, between Third and Fourth streets,” &c., in trust for himself, the said Lewis Blaylock, and for the complainant, Henry Samuel, in equal undivided moieties ; subject to the payment to the said Blaylock of the sum of $10,800, with interest thereon from the 8th of May 1869, out of the proceeds of the sale of the same when sold, and subject also to prior encumbrances existing on 8th May 1869, the date of the execution and delivery of the sheriff’s deed;, that George W. Zeigler is a trustee for the same without any real interest therein, and that he, the said George W. Zeigler, is hereby ordered and directed to execute a conveyance in fee of the same to the said Lewis Blaylock, who shall hold the same for himself and the complainant, Henry Samuel, in trust as aforesaid.
    “ That an injunction be granted enjoining and restraining the said Lewis Blaylock and George W. Zeigler severally from conveying or encumbering said premises, and from executing any deed therefor, other than as is herein ordered.
    “ That said Blaylock be ordered and directed to pay to complainant the one-half of all the rents of said premises heretofore paid by the defendant, D. P. Cubberly, with interest from the date of collection, less the taxes and interest on said prior encumbrance, and that an account be taken thereof. •
    “ And that the defendants, Blaylock and Zeigler, pay the costs of these proceedings.”
    Exceptions were filed to the master’s report which, December 30th 1871, were overruled at Nisi Prius (Sharswood, J.), and the decree recommended by the master made.
    The cause was then referred to the master to state an account.
    He reported an account which with a modification was confirmed • by the court at Nisi Prius (Agnew, J.), March 28th 1872.
    The defendants appealed to the Supreme Court in banc; and in a number of specifications assigned for error the decree made at Nisi Prius December 30th 1871.

      D. W. Sellers (with whom was Gr. W. Dedrick), for Blaylock, appellant. '

      J. Samuel, for appellee.
    Zeigler and Blaylock made themselves trustees ex maleficio for complainant. Blaylock having put himself in a relation of confidence with plaintiff, by collusion with Zeigler, he got the premises in such a manner as abused that confidence : Kisler v. Kisler, 2 Watts 323; Morey v. Herrick, 6 Harris 123; Hogg v. Wilkins, 1 Grant 67; Seichrist’s Appeal, 16 P. F. Smith 237 ; Seylar v. Carson, 19 Id. 81.
   The opinion of the court was delivered, February 13th 1873, by

Siiarswood, J.

Upon a careful examination of the testimony I am unable to discover anything which varies the agreement in writing set forth as the ground of the bill. The evidence before the examiner was given without objection, and was entirely proper as explaining the relation between the parties, and the circumstances which led to the agreement. These facts are always admissible and may be considered in the construction of a written agreement. It appears that the verbal understanding originally was, that Herst was to have an interest of one-third in the premises, if purchased by Blaylock, but with his acquiescence that was changed, and the final arrangement was as expressed in the writing, that if Blaylock became the purchaser at the sheriff’s sale, he was to hold the property in trust to sell and after paying encumbrances, to apply the proceeds to discharge the debts of the firm of P. Herst & Samuel, and to divide the surplus, if any, equally between Blaylock and Samuel. It is in evidence, and is not a matter in dispute, that all the debts of the firm of P. Herst & Samuel have been settled and paid, so that Herst has no longer any interest in the controversy. It clearly appeal's also, that Herst and Samuel had performed their part of the contract by procuring the consent of David Samuel to accept the bond and mortgage of Blaylock for his judgment. It is true that Blaylock did not covenant to become the purchaser, but it is equally true, that if he did purchase, he could not throw aside the obligations of the agreement by paying David Samuel in cash, instead of giving his bond and mortgage. If he bought he must hold the property upon the trust upon which he had agreed to hold it in that event.

The master reports that Blaylock was in fact the purchaser, though in the name of Zeigler, to whom he lent or furnished the money to pay for it, and we think that he is fully sustained in that finding by the evidence, for the reasons he has stated. The testimony of Blaylock and Zeigler themselves, with the circumstances as detailed by other witnesses, lead the mind to this conclusion, and overcome the answers. This being so, Zeigler’s legal title is equally affected and bound by the trust. Blaylock had no right to substitute another person as trustee without the consent of Samuel. So much, therefore, of the decree below as declared the trust to exist and ordered Zeigler to execute a conveyance in fee to Blaylock to hold in trust, as expressed in the agreement, was certainly right. But we think it should have stopped there. There is no right or equity in Samuel to be paid one-half the net income. Until the sale takes place the rents are applicable in the first instance to the reimbursement of the amount advanced by Blaylock. When the sale takes place Blaylock must, of course, account for the rents. The bill does not pray for an account, nor for a sale, and the prayer that a conveyance should at once be made to Samuel of a moiety of tbe property, subject to tbe amount of $10,800 paid by Blaylock and tbe prior encumbrances, is clearly inadmissible, because its effect would be to destroy tbe power of sale and abrogate tbe very agreement wbicb is made tbe basis of tbe relief prayed in tbe bill.

Tbe only equity wbicb tbe complainant bas upon tbe bill was to enforce tbe agreement by a decree that tbe legal title should be transferred.to and vested in tbe trustee named in it.

Tbe decree below is reversed, and now it is ordered and decreed, that George W. Zeigler shall execute a conveyance in fee of the premises described in the bill to Lewis Blaylock, in trust, as expressed in tbe written agreement set forth in tbe bill, and that be be enjoined from conveying or encumbering said premises, and from executing any deed therefor other than is herein ordered; that tbe said trustee shall not sell the premises at private sale without tbe consent and approbation of tbe said Samuel in writing; nor at public sale without reasonable notice thereof beforehand, to be given to him, and that the parties to this appeal shall respectively pay their own costs.


author: Sharswood, J.

text:
    Ashton’s Appeal.
    1. The assignee of a mortgage, unless the mortgagor has estopped himself, holds it subject to all the equities to which it was liable in the hands of the assignor.
    2. The mortgagor having given a certificate that he has no defence, is estopped from setting up a defence against an assignee.
    3. Any subsequent assignee may avail himself of a certificate of “ no defence,” given to the first, if he shows that he or a prior one under whom he claims was an assignee for value without notice.
    4. A purchaser with notice of fraud or trust may protect himself under a prior purchaser without notice.
    5. A creditor taking a chose in action as collateral security for a preexisting indebtedness is not a purchaser for value.
    6. - Although a rule to open a judgment and let the defendant into a defence, has been discharged in a court of law; the defendant is not precluded from resorting to a court of equity for relief.
    7. Burns, through an agent of a trust company, borrowed from them^on a note and assigned stocks, &c., as collateral; the agent borrowed from Ashton who afterwards took an assignment of Burns’s note and collaterals. Held, That Ashton took the collaterals subject to the equities between Burns and the company.
    8. Stock was pledged as collateral for a note, the pledgee took a mortgage as further security, the stock at the time was of greater value than the amount of the mortgage ; the pledgee had not the stock during the pledge, so as to redeliver on redemption. The mortgage was to be credited with the value of stock when executed.
    9. Gilpin v. Howell, 5 Barr 41, distinguished. Wistar v. McManus, 4 P. F. Smith 318, followed.

      February 3d 1873.
    Before Read, C. J., Sharswood, Williams and Mbrcur, JJ. Agnew, J., at Nisi Prius.
    Appeal from Nisi Prius: In Equity: No. 10, to July Term 1868.
    On the 16th of May 1868, Charles M. Burns filed a bill against George H. Ashton, Joshua- Spering, Assignee, &c., of the National Safety Insurance and Trust Company, and said Company.
    The bill set out:
    1. In the month of May 1857, the complainant was indebted to the National Safety Insurance and Trust Company in the sum of $12,600, for which the company held, as collateral security, 125 shares of the capital stock of the Lehigh Coal and Navigation Company, and 700 shares of the capital stock of the Union Canal Company. With these stocks the complainant had given to Stephen Coulter, who was the broker or agent of the company, powers of attorney, in blank, empowering him to transfer the said stocks. On the 11th day of May 1857, Coulter, acting as agent of the company, under one of the powers of attorney, transferred the whole of the 700 shares of stock of the Union Canal Company, the market price-then was $11 .per share. This transfer was made without any notice to the complainant, and without his knowledge or assent; he was not aware of it for nearly ten years after-wards, nor until after the bringing of the suits hereinafter mentioned.
    2. In the fall of 1857 the company, without notice to the complainant of the transfer of the stock, required further collateral security, and the complainant on the 16th day of November 1867 executed his bond for $8000 and a mortgage for securing the payment of the same, to Horatio G. Jones, of premises on the west side of Broad street, Philadelphia, intended to be used as the additional collateral security required by the company.
    3. On the first day of January 1858, the complainant gave his promissory note at ninety days, for $12,600, payable to his own order and endorsed by himself to Coulter. This note was given for the amount of the prior indebtedness, and the bond and mortgage were assigned by Jones to Coulter, as agent of the company, and as a collateral security for the note. On the face of the note the collateral securities held for the same were stated in the following form:—
    “ Collaterals. — A mortgage for $8000, and 125 shares Lehigh Coal 'and Navigation Company’s stock, and 700 shares Union Canal Company’s stock.”
    4. On the 6th and 7th of January 1858, Coulter, still acting as agent of the company, transferred to third persons the whole of the said 125 shares of the stock of the Lehigh Coal and Navigation Company. This transfer was made before the note became due, without notice to the complainant, and without his knowledge or assent. The market price of the stock about the time of the transfer was $60 per share, at which rate the stock amounted to $7500.
    5. The note was unpaid at maturity, and was held over by the company until March 26th 1861, when the complainant, at the request of Coulter and of Samuel K. Ashton, a director of the company, gave another note, also to his own order and endorsed by him, for $18,009 — the difference between this and the first note being made up by simple interest to the amount of $2446.50, and by usurious interest to the further amount of $2962.50. At the time of making this new note the complainant was not aware that the stock of the Union Canal Company and of the Lehigh Coal and Navigation Company had been disposed of, nor was he* so informed by the company or its agent or any of its officers; on the contrary, the mortgage of $8000, the 125 shares of the Lehigh Coal and Navigation stock, and the 700 shares of the stock of the Union Canal Company were entered on the face of the new note as collateral security in substantially the same form as that in which they had been entered on the first note, and as if still in the hands of the company.
    6. On the 18th day of April 1861, the company made a general assignment for the benefit of their creditors to John Derby-shire, &c., and in the succeeding month of May, Spering, one of the defendants, was appointed assignee in their stead by the Court of Common Pleas of Philadelphia. He entered upon the duties of his trust and had since continued to fulfil them. The second note and its collaterals as such were set down in the inventory of the company’s assets.
    7. On the 24th day of May 1866, suit was brought in the District Court of Philadelphia, to June Term 1866, against the complainant on the mortgage of $8000, by George II. Ashton, as “assignee of Stephen Coulter, who was the assignee of Horatio G. Jones.” Judgment was entered in this suit on the 1st of September 1866, for want of an affidavit of defence, and damages assessed on the same day at $11,680. At the time-that this suit was commenced, the complainant was not aware that the stocks of the Union Canal Company and of the Lehigh Coal and Navigation Company had been transferred, and consequently made no affidavit of defence. Complainant averred that George H. Ashton held the note and securities as trustee of the assignee for the purposes of the assignment.
    8. On the 8th of June 1867, the complainant obtained from the District Court a rule to open the judgment and to let him into a defence; all proceedings to stay in the meanwhile. And on the same day the complainant filed an affidavit of defence and in support of the rule. On the 16th of September 1867, this rule was discharged on the motion of the counsel for Ashton, without notice to the complainant.
    9. On the 9th of February 1867, Ashton brought suit against the complainant, in the District Court to the Term of March 1867, upon the said second promissory note, and filed a copy of the note, at the foot of which the mortgage, the Lehigh Coal and Navi gation stock and the Union Canal stock are specified as col-laterals for it. On the 22d of March 3867, the complainant filed an affidavit of defence in this suit, setting forth substantially the facts hereinbefore stated, with the exception of the transfer of the stock of the Union Canal Company, of which he was not then aware. No further proceedings have been had in this action.
    10. On the 15th of February 1868, a writ of levari facias was issued in the suit on the mortgage, in which the real debt was stated as $11,680. This suit was stayed, and on the 22d of April 1868, an alias writ of levari facias was issued, which has also been stayed, upon payment by the complainant of the sum of $2000, on account of the mortgage, which payment was expressly made, by the complainant, and received by the counsel for the plaintiff in that suit, under an agreement that the same should be without prejudice to the rights of the complainant in the matter.
    11. If credit had been given to complainant for the market price of the 700 shares of the Union Canal Company and of the 125 shares of the stock of the Lehigh Coal and Navigation Company, at the time they were respectively disposed of by Coulter, such credits would have amounted to $15,200, being $2600 more than the note of $12,600, and thereby more than paying his entire indebtedness. He averred that Lehigh stock was after-wards sold for $85 per share, which would have produced $.10,625; that the dividends declared by the Lehigh Company upon the 125 shares of stock amounted to the sum of $2437.50.
    The complainant averred that on an account (which he stated in his bill), in accordance with foregoing facts, there would be due to him $6580.85.-
    12. Complainant had been notified by the counsel for Ashton that he would issue a pluries levari facias, on the judgment on the mortgage, on or before the 20th day of the present month, and proceed to sell the mortgaged premises for the alleged balance of the judgment; whereas there is no balance due to the plaintiff, or to the assignee of the company, but, on the contrary, the company is largely indebted to complainant, as above stated.
    The prayers were:—
    1. An injunction against proceeding on the mortgage to enforce its payment.
    2, 3. An account; and payment to complainant of the amount found to be due him.

      4. That Ashton be directed to satisfy the mortgage.
    5. Further relief.
    Ashton by his answer admitted the averments of the 6th paragraph of the bill so far as related to the assignment by the Trust Company to Spering and averred ignorance of the other allegations in the paragraph.
    He further answered:—
    7. Between the fall of 1860 and the spring of 1861 I lent to Stephen Coulter, in cash and securities, upwards of $50,000. For my security certain collaterals were transferred and delivered to me; among others the note of $18,009, 700 shares of Union Canal stock, and the mortgage of $8000. I hold these yet. I have realized on the collaterals other than these, sufficient to reduce the indebtedness to me to the sum of $26,845.06, without interest. The mortgage was delivered to me on the 15th day of December 1860, and an assignment sufficient in law to vest the title thereof was then made, but not in the usual form, and under advice, that of September Í861, was made, a copy of which has been filed in the record of the suit on said mortgage. At the assignment of the mortgage, a certificate signed by the complainant was also delivered me, a copy of which is hereto attached, (marked Exhibit A). I have been requested by the assignee of the company to proceed in the collection of my collaterals that he might fulfil the duties of his trust. I therefore placed the mortgage and note in the charge of my counsel, who has instituted the proceedings referred to in the bill. I deny that I am a formal holder of said securities, if by such averment it is meant that the assignment and delivery to me was for any fraudulent intent or for any other purpose than I have herein set forth.
    9. I have brought the suit as averred in the ninth paragraph of bill. I did this to avoid the effect of the Statute of Limitations. I have been advised by my counsel not to proceed therein, until I have realized on the mortgage, and then to notify the complainant to pay the balance of his indebtedness on the note and accept the collateral, or failing so to do, to proceed to sell them on notice to complainant.
    10. I admit the payment stated in the tenth paragraph of the bill. I instructed my counsel to stay the writ, on the express promise of the plaintiff to pay the balance within thirty days, in consideration of forbearance for that time.
    11. I deny that Coulter ever disposed of the 700 shares of the Union Canal Company, inasmuch as he delivered them to me, and I have them yet. I do desire that my counsel shall proceed with the suits. As the mortgaged security is becoming impaired by delay, I am anxious that no further indulgence shall be given. Time has been lately given, at the request of Mr. Spering, on the assurance that the debt would be paid in a short time.

      He then stated an account showing there were due him; $23,-792.51. “ This the collaterals in my possession and control would not pay. If the debt and interest due on the mortgage be collected and the market value of the Lehigh stock which is now $25 a share, and of the Union Canal stock which is now 25 cents a share, be realized and the amount of dividends claimed be allowed ; yet the complainant would be the debtor.”
    Exhibit A.

      “ I do hereby certify, acknowledge and declare that I have no plea, set-off, or defence against a certain mortgage dated the 16th day of November last past, recorded at Philadelphia, * * * (which is now assigned to Stephen Coulter), and that the whole of the principal sum, to wit, eight thousand dollars, secured by said mortgage, with lawful interest from the date thereof, will fall due on the 16th day of November next ensuing the date thereof.
    “ Witness my hand and seal this 22d day of December, 1857.
    C. M. Burns, [seal.] ”
    Spering answered generally on information: that amongst the assets of the Trust Company were those stated in the bill as being contained in the inventory; that all but the Lehigh stock were held by Ashton, defendant, as collateral for advances made by him to the company; that this stock had not been sold but had been hypothecated by Coulter to raise money for Burns (complainant) and had not been redeemed; that when the alias levari was stayed, complainant, with all the knowledge he had at filing the bill, paid $2000 on account and expressly promised in hearing of this respondent to pay the balance in 30 days in consideration of forbearance for that time. Complainant had always, from the giving of the note, been unable to pay it; had never demanded his collaterals; he had made no complaint as to any dealing with the collaterals until the bringing of this bill; that considering the collaterals insufficient security for the note he had been indifferent as to them and taken no measures to learn anything about them. This respondent averred that the whole of the sum of $18,009, * with interest and costs, was due by plaintiff, and should be paid on the surrender of the collaterals.
    An examiner was appointed, and on the filing of his report, Duval Rodney, Esq., was appointed master.
    The master found that Burns’s stock was pledged through Coulter to the Trust Company, and that they almost immediately pledged it themselves without contract or notice to him ; the mortgage for $8000 was given as additional security for the note of $12,600, given Jan. 1st 1858, although they had previously parted with his Union Canal stock at $11 per share without crediting him with it, and on 26th of March 1861, the note of $18,009, given still without such credit, both' notes having the collaterals noted on them; the mortgage, the master found, to be in the same condition as the notes.
    He then reported:— * * *
    “ Under these facts and circumstances, without any attempt at explanation, one is forced to the conclusion that the plaintiff has a right to ail the equitable set-off he claims in his bill against the company, or its representative, and is entitled to .invoke the rules of law which apply to his case for his benefit.
    “ The company had no right to deal as they did with the securities which were confided to their care, even if the notes had matured, but they are not even upon that footing, for in neither case was the debt due.” * * * .
    Upon the question — “ Had Ashton notice of Burns’s set-off?” the master, after referring to the facts, said:—

      “ There could scarcely be imagined a case where more notice of equities could be given by the subject-matter itself. At every step he was warned by reference to the securities themselves that sometime Burns would be entitled to an account of them, and he knew, as a business man, that the holder would have to encounter a set-off.
    “ When the absence of all or any of this stock came to his knowledge, it was his duty to inquire where it was, and in default of such duty he cannot complain if he is held to a strict accountability, though he may be forced to assume the liability of the Trust Company, even to a punitive extent. These circumstances should have put any one on his guard, and would have alarmed the most reckless money-lender; and if he intervened to assist the company, that fact could only serve to inform him more thoroughly on the subject. Burns, though a debtor to the company, was not deprived of his legal rights, for when called upon to account, he would always be entitled to a credit for collaterals which were not forthcoming.

      “ Mr. Ashton has not shown that he was or is a holder of these • securities, without notice, and he cannot claim the protection of such a position. ■
    “ But suppose he had established his bona fides and want of notice, still did he not as pledgor take these securities subject to all the equities between the original parties ? * * *
    “ It was contended by the defendant that a declaration of no set-off made by Burns on the 2.2d December 1857, estopped him from setting up this defence; but this declaration was made three years before Ashton took the mortgage, and the defences Burns had were not known to him at that time ; and, besides, this declaration for Coulter’s benefit could not avail Ashton.

      “ Upon both the facts and the law, the master reports that Mr. Ashton is subject to the equities existing between Burns and the Trust Company, and being thus subject, Burns is entitled to the relief as prayed for against Mm.” * *
    The master recommended a decree: “ That an account be stated between the complainant, on the one side, and George H. Ashton and Joshua Spering, as representing the National Safety Insurance and Trust Company, on the other side, in which the complainant shall be charged with the sum of twenty-eight thousand three hundred and seventy-eight dollars and eight cents, as of the date of October 24th 1871; and George II. Ashton, and the other defendants, shall be charged with seven hundred shares of the stock of the Union Canal Company at eleven dollars per share, with interest thereon since May 10th 1857; with one hundred and twenty-five shares of the stock of the Lehigh Coal and Navigation Company at sixty dollars per share, with interest thereon from January 6th 1858; and with two thousand dollars, paid to Ashton in April 1868, with interest thereon.

      “ That the defendants George H. Ashton, &c., be restrained from issuing any further executions on the said judgment of the said George H. Ashton, viz., No. 202 of June Term 1866, District Court of Philadelphia, and from proceeding to levy any such execution upon the mortgaged premises, or to sell the said premises, upon any levari facias or execution on said judgment, and from proceeding any further to enforce payment of the same.
    “ That the defendants, George H. Ashton and Joshua Spering, do pay to the said Burns the sum of 2129.39 and that the said George H. Ashton satisfy of record the said judgment and the mortgage upon which the same has been obtained.”
    The complainant and the defendants Ashton and Spering excepted to the master’s report.
    After hearing at Nisi Prius the court (Sharswood, J.) overruled the exceptions and confirmed the report: holding however that Ashton was entitled to the benefit of the certificate of “ no defence,” given to Coulter. Ashton appealed to the court in banc and in eleven specifications assigned the decree for error.

      D. W. Sellers, for appellant.
    A purchaser for value of a mortgage, on the faith of a certificate of no set-off, cannot lose his security by what occurred prior thereto: Scott v. Sadler, 2 P. F. Smith 211; Stevenson’s Appeal, 18 Id. 212. Ashton retained the collaterals. At one time he hypothecated the stock, but it was always under his dominion and control, which was sufficient: Gilpin v. Howell, 5 Barr 41; Wynkoop v. Seal, 14 P. F. Smith 361.
    Burns had become the debtor of Ashton in September 1860. The advances were then made to Coulter on the mortgage and the Union stock. Coulter then, as is now alleged, had converted the Lehigh Coal and Navigation stock. If so, it was an appropriation of a collateral by the agent of the plaintiff, the present debtor, the appellant, never having had it. The loss must fall wholly on Burns: Bank v. Peabody, 8 Harris 454: McConnell v. Weinrich, 4 Id. 365.
    The defence could have been interposed on the sci. fa. to the mortgage. Where the opportunity to make defence is given and neglected, the judgment at law is conclusive in equity: City v. Girard, 9 Wright 9; Wister v. McManes, 4 P. F. Smith 318; Railway Co. v. Moore, 14 Id. 79.

      Gr. W. Biddle and J. A. Olay, for the appellee.
   The opinion of the court was delivered, February 13th 1873, by

Sharswood, J.

It is clear upon the facts as reported by the master, that on the 15th of December 1860, the debt due by Burns to the National Safety Insurance Company, for which the mortgage now in question was one of the collateral securities, crediting upon it the proceeds of the seven hundred shares of stock of the Union Canal Company, and of the one hundred and' twenty-five shares of Lehigh Coal and Navigation stock, was then more than paid. It did not appear that the creditor, the pledgee of the first-named stock, had in possession during the pledge at all times, such stock on hand, ready to redeliver on redemption, which was necessary to bring the case within the decision of Gilpin v. Howell, 5 Barr 41. That the assignee of the mortgage, unless the mortgagor had estopped himself from taking the defence, held it subject to all the equities with which it was affected in the hands of the assignor, is a principle too familiar and well settled, to need the citation of decisions to sustain it. But undoubtedly the debtor may be estopped as against the assignee, by the declaration that he has no defence or set-off to the debt assigned. In the face of such a declaration, he cannot set up his defence against an assignee, who takes on the faith of it. The complainant had made such á declaration on the twenty-second of December 1857. Before that, the Union Canal stock had been sold, and a defence to that extent then existed. The sale of the Lehigh Coal and Navigation stock was on the 6th of January 1858, subsequent to it, and of course, the defence arising therefrom was not precluded. We agree with the court below, that the benefit of it is not confined to the immediate assignee to whom or for whose security it was made; but that any subsequent assignee claiming under him may avail himself of it. To hold otherwise, would have the effect of closing, the market for the sale of his security on the first assignee, if the debtor should refuse to give a new declaration. Upon the same principle, a purchaser with notice of fraud or trust, may take shelter under the wing of a prior purchaser, without notice, otherwise such prior purchaser would be deprived of the principal value of'his privilege.. But to avail himself of such an estoppel upon the debtor, the assignee who sets it up, must show that either he or some prior assignee from whom he claims, was an assignee for value, and without notice. It is not pretended that Stephen Coulter, the first assignee, sustained such character. In regard to the defendant Ashton, the master has reported it as his opinion upon the evidence, that the circumstances under which he became assignee, were such as ought to have put him on inquiry, and he ought, therefore, to be considered as affected with notice. We think he had good reasons for this conclusion, if we compare with the date of the note of March 20th 1861, for $18,009, upon which the stocks and mortgage were marked as collateral, the date of the assignment of the mortgage to Ashton, and the dates of the various assignments of the stock as stated in the testimony of Oscar Thompson, the secretary and treasurer of the Union Canal Company.

But without entering upon au examination of this question, we think that Ashton has not shown that he was a purchaser for value. A creditor who takes a mortgage, note, or other chose in .action only, as security for a pre-existing indebtedness, and not for money advanced at the time, is not such a purchaser: Petrie v. Clark, 11 S. & R. 377; Irwin v. Tabb, 17 Ibid. 419; Hartman v. Dowdel, 1 Rawle 282; Twelve v. Williams, 3 Whart. 485; Depeau v. Waddington, 6 Id. 220; Trotter v. Shippen, 2 Barr 358; Ludwig v. Highly, 5 Barr 139 ; Kirkpatrick v. Muirhead, 4 Harris 123. If, therefore, when the note of Burns and the accompanying collateral were assigned to Ashton, it was merely as security for a pre-existing indebtedness, he cannot claim as a purchaser for value to exclude Burns from his equitable defence or set-off by reason of the estoppel raised by his declaration. It is plain, such an estoppel can only avail a purchaser for value as well as without notice. The onus is always on him who sets up such a plea, to prove it. The answer of Ashton on this point, upon which it ought to have been precise and clear, is general, and consequently vague and indefinite. He says: “ Between the fall of 1860 and the spring of 1861, I loaned to Stephen Coulter, in cash and securities, upwards of $50,000. For my security certain col-laterals were transferred and delivered to me, among others the note of $18,009, 700 shares of Union Canal stock, and the mortgage of $8000.” Nor does his testimony render it any more certain. He testified: “ I received the mortgage for $8000 and 700 shares of Union Canal stock. I got them from Stephen Coulter. I loaned money to him at or abotit that time. I was constantly loaning him money. I had loaned him altogether in the neighborhood of $50,000.” Taking the answer and testimony together, certainly the most natural interpretation of the whole is, that the note of March 20th 1861, for $18,009, with the mortgage and stock, was taken as security for loans previously made between the fall of 1860 and the spring of 1861.

The complainant has shown that when he suffered judgment to be entered by default for want of an affidavit of defence, the scire facias on the mortgage in the District Court, he did not know of this defence; and it is certainly settled by Wistar v. McManes, 4 P. F. Smith 318, that his failure to obtain relief by his motion in that court to open the judgment, will not preclude him from resorting to a court of equity, even if his case had been heard, and his rule, after hearing, discharged. It follows, that the injunction decreed against Ashton’s proceeding to recover the amount of the mortgage, was right. But we think that the court below was in error in confirming that part of the decree reported by the master, which directed that the appellant, Ashton, and the assignee, Spering, should pay the complainant the balance found on the account with the insurance company in his favor. Ashton certainly had not received the proceeds of the Union Canal stock; nor, as far as appears, of the Lehigh Navigation stock. Spering, the assignee, with whom by the decree, Ashton is made a joint debtor, had not received any of it. There is no ground, therefore, upon which they can be held personally liable for the balance due to the complainant by the company. As the decree in this respect is joint, it must be reversed, though Spering has not appealed. It was insisted, indeed, upon the argument, that Burns is entitled to have refunded to him, with interest, the $2000 paid by him to Ashton, on account of the mortgage. Mr. Clay testifies, that this payment was to be “without prejudice.” But this evidently meant without prejudice to his defence, that it should not operate as an admission by him that anything more was due. By this payment he purchased a stay of proceedings. It was, therefore, a perfectly voluntary payment, which, though not owing by Burns, yet Ashton could, with a good conscience, retain, and had it been intended that in any event it should be refunded, it should have been specially so agreed.

Decree reversed, and now it is ordered and decreed, that the defendants be restrained by injunction from issuing any executions on the judgment of the said George H. Ashton, No. 202, of June Term 1866, of the District Court for the City and County of Philadelphia, and from proceeding to levy any such execution upon the mortgaged premises, or to sell the said premises upon any levari facias or execution on said judgment, and from proceeding any further to enforce payment of the same, and that said Ashton shall enter satisfaction on the record of said mortgage, upon payment to him by the said Burns of the legal costs thereof, and that each party to this appeal shall pay his own costs.