author: Gibson, C. J.

text:
    BENJAMIN H. MULLIKEN, against BARNET AUGHINBAUGH and JOHN CLIPPINGER.
    IN ERROR.
    A debt due to one, who is an applicant for the insolvent laws of Maryland* ' and for whom a provisional trustee has been there appointed, is not subject to a foreign attachment in Pennsylvania, it being in gremio legis.

    A foreign attachment will lie .in Pennsylvania, at .the suit of a citizen of another state.
    Quere — Whether a foreign attachment abates by the death of the defendant, after interlocutory and before final judgment.
    This was a writ of error to the common pleas of Cumberland county, to remove the record of a judgment entered upon the following statement of facts, which, it was agreed, should be considered in the nature of a special verdict.
    On the 20th of May, 1818, Aughinbaugh and Clippinger, resident citizens of the state of Pennsylvania, were indebted to Fahnestock and Qaullagher, for the use of Henry Fahnestock, in the sum of four: thousand two hundred and seventy-three dollars and eighty cents,. which was then payable to the said Fahnestock on the 20th May,, 1819. On the 4th day of September, 1818, Henry Fahnestock,, being then a resident of the city of Baltimore, in the State of Maryland, in pursuance of a law of that state, made application for the benefit of the insolvent laws, whereupon certain proceedings were had and done, certified copies of which are now exhibited, and agreed to be considered as a part of this- special verdict; (prcnit same,) of all which the plaintiff had notice. On the 17th of December,.1818, the said Henry Fahnestock, being still a nonresident of the state of Pennsylvania, and then residing in Baltimore as aforesaid, a writ of foreign attachment was issued out of the court of common Pleas of Cumberland county, at the suit of the said Benjamin H. Mulliken, also a citizen of the city of Baltimore against the said Henry Fahnestock, by virtue whereof the sheriff of said county attached the said debt, owing by the said Aughinbaugh and Clippinger to the said Henry Fahnestock, and so returned the same to the court aforesaid, on the return day thereof: whereupon, at the third term, to wit, the 30th of August, 1819, on motion to the said court, judgment was entered in the said suit for the plaintiff Afterwards, and to the next term, to wit, November term, 1819, No. 170, a writ of inquiry of damages issued, at the suit of the said Benjamin H. Mullilcen, against the said Henry Fahnestock, to. the sheriff, who by an inquest, held on the 29th October, 1819, found that the debt due by the said Henry Fahnestock to the -said Benjamin H. Mulliken, and for which the said foreign attachment had issued, was one thousand seven hundred and sixty-eight dollars and eight cents, all which was duly returned by the said sheriff to the said court, upon the return day of his said writ of inquiry of damages. Whereupon, on the 23d day of December, 1819, and to the next term, to wit, January term, 1820, No. 162, a writ of scire facias was issued at the suit of the said Benjamin H. Mulliken, against the said Aughinbaugh and Clippinger, as garnishees of Henry Fahnestock, in the aforesaid foreign attachment, which said scire facias suit is the same upon the. issue in which this special verdict is found.
    On the 31st day of July, 1819, and to August term, 1819, No. 297, a suit was brought in the name of Henry Fahnestock and Thomas Gaullagher, late co-partners in trade, under the firm of Fahnestock Sy Gaullagher, for the use of Henry Fahnestock, and now for the use of Charles W. Karthaus, provisional trustee of the said Henry Fahnestock, against Barnet Aughinbaugh and John Clippinger, co-partners in trade, under the firm of Aughinbaugh Sy Clippinger; which suit was brought to recover from the said Aughinbaugh Sy Clippinger, the same debt of four thousand two hundred and seventy-three dollars and eighty cents, which had been attached as aforesaid at the suit of the said Benjamin H Mulliken. In this suit, among other things, the said Aughinbaugh Sy Clippinger set up as a defence and gave in evidence the said writ of foreign attachment, at the suit of the said Benjamin II. Mulliken, and other writs of foreign attachment at the suit of other plaintiffs. Whereupon, on the 19th November, 1828, the following agreement or stipulation was made and entered upon the record of the said writ, to wit: “It is stipulated by the plaintiff by their counsel, that in the event of a recovery in this case, it shall be considered in favour of the persons legally entitled to have the money, and the same to remain in court until it be determined whether the plaintiff or attaching creditors be entitled to receive it. Mr. Carothers and Mr. Watts appear for Adam Konigmacher, Benjamin H. Mulliken, Jos. Sp J. Wilkins, and E. F. Hallowell, the attaching creditors.” “ To this stipulation the defendants gave no consent.” And afterwards, to wit, on the 22d January, 1829, the following agreement was made, and entered on the record.
    “ It is agreed between Mr. Metzger, counsel for the plaintiffs, and Messrs. Carothers and Watts, attorneys for the attachment creditors, that the verdict when given in this case is in no wise to effect the attaching creditors mentioned in a former stipulation: but that their rights shall be held as if no such verdict had been given.” This agreement was made in open court upon the trial of the cause, when a verdict was then renderdfl for the plaintiff Charles W. Karthaus, for the original debt of four thousand two hundred and seventy-three dollars and eighty-cents, without interest.
    It is further agreed that Henry Fahnestock died on the day of A. D. 1825, and that letters of administration were granted on his estate to the said Charles W. Karthaus, in the city of Baltimore, on the 27th day of August, 1829,
    Upon the foregoing facts the question is, who is entitled to the money in the hands of Aughinbaugh Sp Clippinger ? If the court should be of opinion that the plaintiff in this issue is entitled to recover, then judgment to be entered for the plaintiff in this suit, and for the plaintiffs in the other suits, which by agreement abide the event of this case, and in that event the verdict and judgment at the suit of Fahnestock Sp Gaullagher, for the use of Charles W. Karthaus, No. 297, August term, 1819, to stand as a security for the use of the said Benjamin H. Mulliken, and the other plaintiffs in foreign attachments, to wit, A. Konigmacher, E. F. Hallowell, and Jos. J- Wilkins, according to the agreement made on the 17th November, 1828, and entered on the record of the said suit as before recited.
    But if the court should be of opinion that the plaintiffs in said foreign attachments are not entitled to recover, then judgment to be entered for the defendants, and the said suit for the use of the said Charles W. Karthaus, No* 297, of August term, 1819, to be discharged from any incumbrance created by the said writs of foreign attachment, or by the before recited agreements of the 17th November, 1828, and 22d July, 1829.
    It is further agreed that Benjamin H. Mulliken and Jos. J. Wilkins were citizens of the city of Baltimore, in the state of Maryland, and that Adam Konigmacher was a citizen of Pennsylvania at the time when said foreign attachments were issued, to wit, on the 17th December, 1818.

      In the decision of the within special verdict, the facts- embraced therein, are to be passed upon and decided, and to have in every respect the same operation in law as if they had been presented duly for decision by pleadings or otherwise»
    All the records and papers mentioned in the foregoing special verdict, are hereby agreed to be considered part thereof.
    The record of the application of Henry Fahnestock, for the benefit of the insolvent laws, in the city of Baltimore,- exhibited the following facts.
    That in pursuance of “ An act delating to insolvent debtors in the city and county of Baltimore,” Henry Fahnestock, on the 4th September, 1818, applied to the Honourable Walter Horsey, chief judge of Baltimore county, for the benefit of the insolvent laws, and the said judge referred his said petition, schedule and other papers to the “ Commissioners of Insolvent Debtors,” and fixed the first Saturday of March term, 1819, for the final hearing of said insolvent before the county court. The said commissioners appointed Charles W. Karthaus provisional trustee, to take charge of the effects of the said Henry Fahnestock, in pursuance of the said act, who entered into a bond in the penalty of one hundred thousand dollars, conditioned for the faithful performance of the duties.
    It did not appear that any further proceeding was had in pursuance of said application, or that Hem-y Fahnestock ever afterwardsappeared to prosecute his said application.
    The court below, {Reed, president,) after -delivering the following opinion, directed judgment to be entered for the defendants.
    The attachment issued in case, and the judgment at the third term was interlocutory; a writ of inquiry to assess the damages' issued, and was executed and returned — but no final judgment, was-ever entered thereon. But a sdre facias issued without such judgment. The omission to have final judgment was not a clerical default, but the neglect of the party; for such judgment could only be entered on motion, and such motion could alone.proceed from the plaintiff By his default, no final judgment was entered when, the defendant died; whereupon the attachment abated. No Writ of scire facias can therefore be sustained, nor could it regularly issue. Upon this statement of facts, and by the stipulation in the special verdict, every objection may be taken.ad vantage of, without regard to the pleadings or issue.
    Our opinion being decisive on this point, it may not be necessary to consider the other aspects of the cause: there are other points equally fatal to the plaintiff’s right to recover.
    The transfer of the note to the provisional trustee, under the insolvent laws of Maryland, was a pledge of the property for the use of the creditors of Fahnestock, generally, although the right of property or title remained in him, and though the proceedings were never consummated by the appointment of a permanent trustee: — yet these proceedings were in force when the attachments issued, in December, 1818. If at that moment there was a legal impediment to the issuing of an attachment, its subsequent removal would not make good a writ which had improvidentlv issued.
    Though Karthaus may have had no right to sue for the money,, he had the possession of the note; and as the legal right of Fahnestock, himself, to dispose of it in any way, was suspended or taken away by law — so the law could not interpose to divest the interest which the general creditors had acquired in the pledge; until the proceeding, therefore, was discontinued, the property was. locked up in the hands of the provisional trustee.

      Watts and Caroihers for plaintiff in error.
    In the court below, three objections were made to the recovery of the plaintiff 1st. That a foreign attachment cannot be sustained by one who is not a citizen of Pennsylvania. 2d. That the attachment abated by the death of Fahnestock. 3d. That the proceedings under the insolvent laws of Maryland, divested Fahnestock of his interest in the note, so as to make it not the subject of a foreign attachment.
    On the first point. Although the preamble to the attachment laws recites an evil to the citizens of our own state, which it was designed to remedy; yet such a construction has been given to those laws as that every man, who sues for his claim in our courts, is considered quo ad hoc a citizen of Pennsylvania; and such a practice has been accordingly pursued, as it would be now unsafe to overturn. Milne v. Mortm, 6 Bin 353.
    Second. The circumstance of there having been no final judgment entered upon the return of the writ of enquiry of damages, was but a clerical omission, and one which ought not to prejudice the rights of the plaintiffs; the writ of scire facias against the garnishees treats it as a judgment, and it is not -competent for another creditor of Hem-y Fahnestock to avail himself of this omission, which is, at all events, but matter of form. But after interlocutory judgment, the death of the defendant does not abate the writ of foreign attachment. In the case of Fitch v. Ross, 4 Serg 8f Ramie, 557, the supreme court have decided, that the death of the defendant, after final judgment, does not abate the writ, and that the personal representatives may be substituted, and may put in bail to dissolve the attachment; and the same reasoning which influenced the court in that case is perfectly applicable to this. That the declared object of the act was to prevent non-residents from withdrawing their effects from the state, leaving their debts unpaid; and this object would be defeated, if, after the plaintiff has run the tedious course of the law, and when he is about to reap the benefits of his pursuit, the death of the defendant dissolved all; ánd his respresentatives would be at liberty to withdraw from the state, the effects which had befen condemned to pay the judgment against him.
    Third. The foreign attachment issued here, bound the money in the hands of Aughinbaugh and Clippinger which they owed to Fahnestodc. By the law of Maryland, when an application is made by an insolvent debtor, and his papers are referred to the “ Commissioners,” a provisional trustee is appointed to take charge of the effects of the applicant while the proceeding is pending, and it is determined by the judicial decisions of that state, 2 Harris Sp Gill. Rep. 24, that such trustee is but a recipient, a care-taker of the property during the pendancy of the application, and until a permanent trustee is appointed: he cannot sustain an action to reduce the property of the applicant into his possesson. Karthaus was, therefore, but a care-taker of the evidence of the debt which Aughinbaugh and Clippinger otved to Fahnestock, and had no right under any circumstances, to claim the money due upon it. But inasmuch as it appears that Henry Fahnestock never took the benefit of the insolvent laws; but that what he did do, was merely to elude the grasp of his creditors, and never can result in any advantage to his creditors, it is difficult to discover why it should operate to render ineffectual a proceeding by one of his creditors, in our own state, by which his debt would be secured.

      Metzger, with whom was Miller and Penrose, for defendant in error.
    Process by attachment is not of common law origin, but is secured to the people by positive legislative enactments. Before the passage of the act of 1705, entitled “ an act about attachments,” the effects of absenting debtors, were not liable to their debts. The act referred to, was passed to remedy this evil. The preamble recites that “ whereas the laws of this government have hitherto been deficient in respect of attachments, so that the effects of persons absenting, are not equally liable, with those of persons dwelling upon the spot, to make restitution for debts contracted or owing within this province, to the great injury of the inhabitants thereof, &c. Hence the inference is inevitable that the law was intended for the benefit of the people of this state exclusively. It was so considered by Washington, justice, in the case of Fisher v. Comegua, reported at large in Sergeant on Attachments, page 44. In that case the learned judge refers to the preamble, to ascertain whether a foreign attachment would lie in any case other than debt. “ The mischief, as the preamble informs us, says he, was that the effects of' absent persons, were not equally liable with those of persons dwelling on the spot, &e. to the injury of the inhabitants of Pennsylvania.” “ Surely,” says the judge, “ an inhabitant of Pennsylvania is not less injured by the want of a remedy,” &c. It is no answer to the proposition, that a foreign attachment was sustained, in the case of Milne v. Morton, 6 Bin 353, although the plaintiff in- the attachment was a citizen of New York.' There the objection was not taken. It made no part of the argument of the case. The court was not required to give an opinion on it. Nor are we permitted to indulge in speculations on the subject. It, is a statutory remedy, and should be construed strictly. According to the custom of London, the person, claiming its benefit, must reside within the city. Foreing attachment is an attachment of the goods of a foreigner, found within a liberty or city, to satisfy some creditor, within such city or liberty.
    The attachment abated, by the death of Fahnestock, who died after interlocutory but before final judgment. In the case of Ludlow v. Bigham, 4 Dali. R. 47, it was stated in argument, that the defendant’s death, after interlocutory judgment, destroyed the attachment. It was considered the settled law. Mr. Dallas, the able reporter of the case, adopts the argument as the law, and goes so far as to ask in a note, whether the death of the defendant, after final judgment, does not abate the writ. The case of Fitch v. Ross, 4 Serg. 8f Rawle, 562 does not militate against this principle. If the opinion, delivered by the court, in that case be carefully examined, it will be found to sustain the proposition. In that case the death was after final judgment. The court treated it as a final judgment, and throughout the judge’s opinion, he refers to that circumstance, it being a final judgment, as justifying his opinion, that the attachment did not abate or dissolve, by the death of the defendant.
    This is placing the law on its proper basis. By the final judgment a lien is created on the defendant’s property. A simple contract debt is changed into a debt by judgment of law in his life time. Thus the law of distribution of an intestate’s estate is not impaired. The plaintiff in the attachment does not obtain an undue preference. He is placed in the same situation with a vigilant simple contract creditor, who brings his action of debt, and obtains judgment against his debtor in his lifetime. Far different would it be, if the death of the party did not abate the attachment, under any circumstances; if death did not abate it after interlocutory, but before final judgment. The writ can only issue against an absent debtor. He has no knowledge of the proceedings.' He is not represented in court or out of court. It is an ex parte proceeding altogether and the claim may be entirely groundless. Yet under these circumstances a- judgment is obtained — for the debt? No, but to enable the plaintiff to issue his scire facias against the garnishee. By the judgment no debt is ascertained and fixed. It is merely interlocutory. Serg. on Attachments, 20. 2 Arch. Prac. 25, 79. And yet, if the position contended for on the other side bp correct, the plaintiff in the attachment, having such a judgment, would sweep away all the assets, to'the great injury of the rest of the defendant’s creditors.
    It appears by the proceedings had, under the insolvent laws of Maryland, that the note in question was returned by Fahnestock ', in the list of his property, on the 4th September, 1818. On the same day, a provisional! trustee was appointed by the commissioners of insolvent debtors, to take possession, for the benefit of his creditors, of all his property, estate and effects, books, papers, accounts, bonds,' notes and evidences of debt The attachment did not issue until the 17th day of December, 1818. Here then was such an assignment or transfer of the insolvent’s effects, before the issuing of the attachment, as to divest him of his interest in the note, so as not to make it the subject of a foreign attachment. After the transfer, the payee in the note could not bring suit upon it, and appropriate it to his own use. He had pledged it for the benefit of his creditors generally. They had a direct interest in the legal and proper disposition of the money due upon it. They had a vested right, which could not be defeated by Fahnestock, his trustee, who held in trust for himself and other creditors, or by any other person. And yet, if the position taken by the other side be correct, we shall be presented with this strange anomaly in the administration of justice, that through the instrumentality of a court of law, money is recovered on a note of hand, in the custody of the law, which the owner himself could not recover. That a plaintiff in a foreign attachment, on ex parte proceedings, not much favoured, and often leading to great injustice, could coerce the payment of money which had been previously appropriated to other specific purposes. The law, however, is well settled that the plaintiff in an attachment, stands upon no better footing than his debtor. 3 Bin. R. 394, U. States v. Vaughan. It is equally well settled, that after the transfer of a chose in action, or any thing else, it ceases to be the object of a foreign attachment. 4 Doll. 279. 3 Bin. 394. Serg. on Attach. 80. 171. 181. 176. 177.
   The opinion of the court was delivered by

Gibson, C. J.

It is a principle both of British and American jurisprudence, that personal property has no locality in respect of the succession, which is always according to the law of the domicil; and the rule is extended by the English courts even to creditors. But in America, the rights of creditors not owing allegiance to the country of the domicil, are generally, if not universally determined by the lex loci rei sitm. In the application of the general principle to cases of foreign bankruptcy, the British judges, while admitting the validily of an involuntary assignment, even as regards their own subjects, have inconsistently denied to the bankrupt his share of the benefit under the commission, by subjecting him to the debts of British creditor.®, from which the certificate purported to be a discharge. (Smith v. Buchanan, 1 East. 6.) It surely would1 be more just to the bankrupt, as well as beneficial to the British creditor, to sustain an attachment of effects within the realm. The American courts act more consistently, if not more liberally, in giving effect to the commission as far as they can, without interfering with the claims of those who were not originally bound by it, on the score of allegiance; and this is, perhaps, all that foreign nations have a right to require, as comity is overstrained when it is bestowed at the expense of justice. In Milne v. Morton, (6 Bin. 361,) chief justice Tilghman has glanced at a distinction between things that are tangible, and therefore susceptible of actual locality, and things invisible, (consisting of debts,) of which he seems to suppose locality cannot be predicated; the accuracy of which, I may, with great respect for the opinions of that learned and excellent judge, be permitted-to question. The English courts sustain the title of assignees under a foreign commission, on principles of courtesy, not right; while the preference which we give to the title of creditors, is founded, as we conceive, in duty to prevent foreign interefence with the rights of our citizens or others not owing allegiance to the foreign government, over property which accident, consistently with justice and the laws, has subjected to their power. It can, therefore, make little difference in principle, whether the existence of the property be actual or potential, provided recourse may be had to it under the process of our courts; or whether it be corporeal or incorporeal, provided it be a subject of judicial cognisance, as in either case it seems to me, a creditor would be bound by no transfer but that of the debtor himself. But the case at bar is free of difficulty on this or any other head, the attaching creditor being personally bound by the laws of Maryland, and consequently disabled from gaining an advantage inconsistent with those laws by any proceeding here. Whether, in the case of a creditor not thus bound, we should feel it a duty to exercise a greater degree of courtesy towards a sister state, than towards a country with which we are connected by no political tie, is a question about which we intimate no opinion.

Whether the property was bound by the proceedings in Maryland when the attachment was laid, is a distinct and material fact which ought to have been expressly stated, because not only the existence of a foreign law, but the construction which is part of it, is determinable, not by the court, but a jury.'"There is, however, m the statement of the case, something like an agreement that the court shall pass on matter of fact, which may have been inserted to remedy this very defect. The plaintiff relies on the opinion of the court of appeals, delivered by chief justice Buchan, in Brown v. Brice, (2 Harris & Gill, 24.) in which it was ruled that the provisional trustee is a mere recipient of the property without power to assign it, or exercise any act of ownership in respect of it, but that of a baillee. And from this it is evident that he has but a qualified property. But of what value to the argument is it, that the ownership of the insolvent debtor was not divested, if the property were in gremio legis? And that it was, it is impossible from the nature of the case to doubt. The proceeding in cases of insolvency isa process of distribution among creditors; to accomplish which it is absolutely necessary that the law take possession of the fund. To this end, it is provided in the “Act relating to insolvent debtors in the city and county of Baltimore,” passed by the legislature of Maryland, in 1816, that the provisional trustee “ shall take possession for the benefit of the creditors of such insolvent debtor, of all property, estate and effects, books, papers, accounts, bonds, notes and evidences of debt.” Surely against such possession the courts of Maryland would not permit a creditor to gain a preference by execution or otherwise; and if such preference could not be gained there, a creditor bound by the laws of that state, could use the process of the courts with no better success here.

The property was therefore not subject to attachment by an inhabitant of Maryland; not however because a foreign attachment may not issue at the suit of a non-resident, (for that has never before been doubted,) but because it was previously attached by the laws of Maryland, by which the plaintiff is bound. This decision of the preceding points, relieves us from deciding whether the attachment abated by the death of the defendant between interlocutory judgment, and the execution of a writ of enquiry of damages: a nice and critical question, which we would not determine without more consideration than we have had time to bestow on it.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN BAILY, by his Attorney in fact, JOSEPH TREGO, against JOHN HERKES and ISAAC SHELLEBARGER, Executors of ELIZABETH SNYDER, deceased.
    IN ERROR.
    Parol evidence of the declarations of a testator at the time the will was written, may be received in evidence, to support a presumption that the legacy was redeemed by the testator in his life time.
    Writ of error to the common pleas of Cumberland county.
    This was an action of debt brought by the plaintiff against the defendants, to recover a legacy under the will of Elizabeth Snyder, deceased, which was bequeathed in the following words, “ I give and bequeath to John Bail;/, the boy that was living with me, and my deceased husband in his life time, one hundred dollars.” The will was dated 21st October, 1824, and proved immediately after the death of the testatrix, on the 23d February, 1826, and read to the jury.
    The defendants then offered to prove, by the person who wrote the will, that while writing it, the testatrix said, she wanted to pay John Baily, one hundred dollars, according to the request of her late' husband, and asked the witness if it were inserted as a legacy in the will, if she could still pay it in her life time; and he advised her to take a receipt for it, or pay it in the presence of a witness, and that before the death of said Elizabeth, she did in fact pay the one hundred dollars to John Baily.

    Which evidence was objected to by the plaintiffs counsel, on the ground, that the bequest in the will is general, and cannot be qualified by parol evidence, so as to shew any particular intention of the testatrix.
    The objection was overruled, and exception taken by the plaintiff
    The following is the substance of the testimony then given:— That David Snyder, the late husband of Elizabeth Snyder, the testatrix, made a will on the 18th July, 1818, by which he bequeathed nearly his whole estate to his wife, and that before his death, which happened the 16th February, 1819, he said to his wife, that he had intended to bequeath to John Baily, one hundred dollars, but at the time of writing his will he had forgotten it, and then enjoined it upon her to give John Baily one hundred dollars, out of his estate. That in October, 1824, she communicated this injunction of her husband to the person who was at that time writing her will, and her intention to obey it; and after the will was written, she told the witness that if Baily should stand in need of the money, before her death, she would pay it to him. The will remained in the possession of the testatrix, and about a year after it was written, she sent for John Baily, and saidlto him, “ that her husband had enjoined her to give him one hundred dollars, out of the estate, and she had waited a good while for a favourable opportunity, that it might go to a good use.” She then went to the same desk in which her will was, and got a hundred dollars in notes, and gave them to Baily. Her will remained in her possession, uhaltered, until her death, which happened two or three months afterwards.
    The court (Reed, president,) delivered the following charge.

      To the Jury. — There are two points involved in this case, one of law and the other of fact. It is contended that, Elizabeth Snyder, having bequeathed one hundred dollars to John Baily, in her last will and testament; and that will having been duly proved after her death, that “ the words of that will cannot be supplied, contradicted, or explained by parol evidence — and that therefore the testimony of John Bear, ought to have no influence upon the minds of the jury in making up their verdict.” The legal positition thus taken by plaintiff's counsel is correct enough, but the consequence does not follow which the plaintiff contends for. The will of Elizabeth Snyder is plain and unambiguous, and clearly imports an intention to give the legacy of one hundred dollars to John Baity. This is not and cannot be controverted by parol proof. But being admitted, it is competent for the defendant still to shew that the legacy so intended, was in fact paid in the life time of the testatrix. It would be a fraud if the law established any other rule. Taking a case where but one bounty is intended of one hundred dollars, and provision is made by will for conferring that bounty, if paid in the life time of the testator, it would be against his will for the legatee to claim a second bounty of one hundred dollars, after-wards, under the will. The law is then open for the jury h> inquire, whether the one hundred dollars named fin the will, and the one hundred dollars paid by Elizabeth Snyder, in her life time, constitute the same sum. If but one bounty was intended, and that was distinctly paid by Mrs. Snyder, in her life time, in full and complete satifaction of the whole, then the plaintiff cannot recover. But if the two sums were different — one intended as the bounty of her husband, and the other as her own bounty, then the plaintiff ought to recover. This is a question of fact-for the jury — you ought to be well satisfied that the payment of the one hundred dollars in her life time, was not in lieu of the same one hundred dollars mentioned in her will, before you find for the plaintiff.
    In this court, the admission of the evidence mentioned in the first bill of exceptions, and the charge of the court, were assigned as errors.

      Watts, for plain tiff in error.
    The rule of law is unquestioned, that a will is not to be expounded by any thing but itself; and this rule as applicable to this will, is clearly expressed in the case of hiñes v. Johnston, 4 Ves. 573, where it is said: “It turns out that there was among the assets one bond for the exact amount of the legacy; but there were many other bonds belonging to the testator, and it was insisted, and very properly, that the court is, to determine, upon the face of the will, whether the legacy be specific or pecuniary, and not to travel into the account of the effects, to see whether that shall be turned into a specific legacy, which upon the face of the will is to be taken as pecuniary.” The same doctrine is laid down in Andrews v. Emmot, 2 Bro. C. O. 297, by Lord Eldon, in JSfannoch v. Horton, 7 Ves. 400, in 1 Ves. Jnn. 285, and in 1 Rop. on Leg. 273. There is a class of cases founded in the relation between parent and child, wherein a court of equity, without any intention expressed by the father, raises a 'presumption upon the natural obligation he owes to his child. That a gift, either by deed or will, is intended not merely as a bounty, but a portion; but the same presumption does not arise between the legatee and a stranger, or even a putative father. Where a stranger or putative father gives a legacy for a particular purpose, expressed in his will, and afterwards advances money for the same purpose, it is an ademption of the legacy. 1 Rop. on Leg. 272. It follows that if this purpose is not expressed in the will, it cannot be made appear by parol evidence. In this case, the same evidence which proved the payment of the one hundred dollars, to John Baily, established the fact, that it was paid in pursuance of the injunction of the husband of the testatrix, or in other words in discharge of the obligation she owed to her husband, it was in fact the bounty of her husband. The parol evidence admitted by the court so explained and qualified the bequest in the will, as to shew, that the intention of the testatrix in. her will, was, in that way to comply with the injunction of her husband, that she did not intend the legacy as a bounty of her own, as it appeared in the. will to be, but the bounty of her husband.

      Carothers, for defendant in error,
    whom the court refused to hear.
   Judgment affirmed.


author: Rogers, J.

text:
    JOHN MOORE, the elder, JOHN MOORE the younger, JAMES M'CORMICK, JAMES GIVEN and GEORGE WILSON, Administrators of WILLIAM MOORE, deceased, appellants, against GEORGE KLINE, Jun. appellee.
    M. obtained judgment, in November, 1808, upon which he issued a sci. fa. to August term, 1810, to which the plea of payment was put in, and issue joined thereon. His counsel was appointed president judge, and in 1816 a.list of causes in which he had been concerned, and among them this, was certified for a special court. On this list the words, “settled says Mr. Duncan,” were written in the hand-writing of the judge, in the entry of this cause; and again, on another list, certified in 1817, the word “settled.” Mr, D. was counsel for the defendant, and these entries were never transferred from the trial lists, but in 1823, they were on motion ordered to be stricken out, and in 1825, a verdict and judgment rendered for the plaintiff. Held that the lien of the judgment remained, and was not postponed-to a judgment obtained against the defendant after these entries had been made, and before they had been stricken out.
    A trial list, certified under an act of Assembly for holding a special court, forms no part of the record; it is the private paper of the judge, which he has a right to do with as he pleases, and the entries made upon it by him, are intended for his own information.
    This was an appeal from the decree of the court of common pleas of Cumberland countv, distributing the proceeds of the sale of " the real estate of George Kline, Sen. deceased, made on execution by the sheriff of that county, and upon a rule, brought into court by him for distribution on the 15th May, 1828.
    The appellants claimed the money upon a judgment entered against George Kline, Sen. in November, 1808.

      A scire facias issued on this judgment, No. 18, to August term, 1810; in which a rule to plead was entered, on the 10th of October, 1810, and the plea of payment put in, and an issue joined upon that plea.

      James Hamilton, Esquire, who had been counsel for the plaintiff, was appointed president judge of the ninth judicial district; and upon his appointment, a list of causes in which he was concerned, was made out, in 1816, for a special court to be held by judge Franklin.
    This cause was entered on that list, and the words, “ settled says Mr. Duncan,” were marked to the entry of it on the list, in the hand-writing of the judge. Mr. Duncan was then the counsel for the defendant, George Kline.

    On the 20th of March, 1817, the prothonolary certified another list of causes, in which judge Hamilton had been concerned, for a special court appointed to be held by judge Scott. This cause was again put down on this list, and the word “ settled,” entered in it in the hand-writing of judge Scott.

    Neither of these entries were ever transferred; hut the certified trial lists remained in the prothonotary’S office of the county. On the 15th of May, 1823, a rule, at the instance of the plaintiffs, in the judgment, was obtained “ to shew cause why the last entry made by the court in this cause should not be stricken out, having been made by mistake, and without authority;” and on the 10th December, 1824, this rule was made absolute. The cause was tried on the 25th August, 1825, and a verdict and judgment in favour of the plaintiffs, for thirteen hundred and twenty-three dollars and sixty-nine and an half cents, were rendered.

      George Kline, Jun. claimed the money on a judgment of the court of common pleas of Cumberland county, against George Kline, Sen., entered the 3d November, 1818, for nineteen hundred and ten dollars.
    The decree of the court of common pleas of Cumberland county, was in favour of George Kline, Jun. and postponed the judgment of the appellants. The question raised upon the exception to this decree, was as to the effect of the entries made on the trial lists in the suit in favour of the appellants.

      Williamson and Metzger, (with whom was Parker,) for the appellants, contended, that entries made on the trial lists, and not transferred to the appearance or continuance docket, cannot have the effect of postponing the judgments of the appellants to that of the appellee. They were made by mistake, and as between the parties ■ they are wholly nugatory.
    The only ground upon which they can be made to operate in favour of the subsequent judgment creditor, is, that he may have advanced his money on the iaith of these entries, as evidence of the satisfaction of the antecedent judgment. Now if this judgment creditor did so advance his money, and take a judgment for it, he must prove it: and his simple allegation of the fact will not suffice. No direct evidence is attempted on this point, and the existence of the entries on the trial lists will not justify the inference.
    There is no proof that he had actual notice of these entries, and the entries themselves do not afford evidence of constructive notice. And, without the one or the other, it is manifest that the subsequent judgment creditor is not prejudiced.
    The entries were not on the record, nor of record. A record is the enrolment of the doings of a court of record. These trial lists were directed by the act of assembly to be made out, and sent to the judge. Purd. Dig. 337. They were his private papers, and might have been kept or destroyed by him: and in truth, although found in the office, they were never filed or preserved with the care usually taken of records. In the case of Black v. Dabson, 11 Serg. fy Ramie, 94, it was decided, that to preserve the lien of a judgment beyond five years after its entry, the cessat must be entered on the record» It is not enough that it is endorsed on a paper filed in the cause. If this strictness be required to preserve a lien, the same strictness, by a parity of reason; should be required to defeat it: and the entry in the one c'ase, as in the other, must be made on the record,\to have any effect Lesse ofHiesterv. Fortner, 2 Bin. 40. Peebles v. Reeding, 8 Serg. dy Ramie, 496. Weilder v. Farmers’ Bank of Lancaster, 11 Serg. Sy Ramie, 139.

      Alexander and Carothers for the appellees.
    A record is the evidence of the doings of a court of record, and these entries come within the definition. They are in the hand-writing of the judge, and made by him in court, as evidence of the doings of that court, in the proper case. And it was so treated by the plaintiff himself. No continuances were entered from 1816 to 1823, and the plaintiff’s counsel then moved to strike out the last entry made by the court in-this cause. At that time George Kline, Sen. was dead, and the plaintiff prevailed in his motion, and afterwards obtained a verdict.
    But whether the entries be of record or not, is of no consequence. They were made in this cause, and estopped the' plaintiff to deny their verity so far as respects subsequent judgment creditors. Bebee v. Bank of JV. York, 1 John. R. 546.

    To avoid this effect, it was incumbent on the plaintiff to show that the subsequent judgment creditor had notice that the entries Ve’-c wrong.

      The word “ settled,” means satisfied. Berks and Dauphin Turnpike Co. y. Myers’ Ex’rs, 11 Serg. Ramie, 123. Commonwealth v. Stoever, 1 Serg. Ramie, 480. 1 Phil. Ev. 80.
    The principal must disavow the act of his agent, or it is binding on him. Breiin v. Dubarry, 14 Serg. Sf Ramie, 27. If therefore these entries were made by consent of the attorney in the cause, his authority to do so, should have been promptly denied. It is against equity, after the lapse of so many years to permit him to do it, to the prejudice of an innocent third person, who subsequently acquired rights.
    The appellee confided in this entry, and in faith of its truth his money was advanced. He; by referring to the docket entry would perceive that this cause had gone into the special court, and the act of assembly would inform him that a certified list had been made out: this would put him on enquiry, and would result in a knowledge of the entries’ made on the trial list. And in point of fact, this was the case, although no direct evidence could be given of it.
    The issuing of the scire facias did not continue the lien. The Creditors of Treichler v. Bower, 7 Serg. fy Ramie, 73.

   The opinion of the court was delivered by

Rogers, J.

The act of the 4th April, 1798, prescribes that a judgment shall not continue a lien for a longer term than five years, unless within that time a scire facias be sued out by the plaintiff This scire facias was sued out in due time, but it is contended, that notwithstanding the plaintiffhas lost his lien, because he has not pursued the remedy pointed out by the act with the- requisite diligence. In a case at Philadelphia, not yet reported, the court de-' cided that when a scire facias had been issued, but not returned, and when it appeared that no steps whatever had been taken to prosecute the suit, that there was such gross negligence, as to amount to an abandonment of the writ. That the mere issuing a scire facias, without more, was not sufficient to keep up the lien for an indefinite length of time. That, however, is not the case, and we are unwilling to extend the principle further than is warranted by the terms of the case to which we have referred.

This scire facias was issued, returned served, a plea of payment put in, and the cause put to issue, and placed on the trial list from time to time. At a special court held by judge Franklin, an entry of “ settled,” was made on the trial list, at the suggestion,ras it appears of Mr. Duncan, who, at that time, was the counsul for the defendant. When again put upon the list of the special court, a similar entry was made by judge Scott, but at whose instance does not appear — possibly at the instance of the same counsel, or perhaps caused by a Hasty reference to the entry previously made. The cause appears regularly continued on the docket; nor shall I stop to inquire when those entries were made, or is it material. On the 13th May, 1823, the entry “ settled,” was on motion stricken out by the court, having been made by mistake and without authority. After this, I can perceive no indication of an abandonment of the writ, or any thing that amounts to gross negligence. When we consider the peculiar situation of this cause, we can be at no loss to perceive why it was suffered to slumber on the docket. In all probability neither the plaintiff nor his counsel were aware of the entry; for if made in his absence, the trial list would be the last place where he would expect to find it. lie would be guided by the entries made by the prothonotary on his docket. It appears to me to be dangerous to adopt a latitude of construction as regards this act, as we would introduce uncertainty, as to what degree of diligence is necessary to continue the lien of a judgment. Numberless questions will arise from an attempt to superadd a limitation to the lien of a judgment, not warranted by the terms of the act itself. Independent of any statutory provision, the judgment and the lien were co-cxistent, and it is the same now, when a scire facias has in fact issued within the term of five years; except in the case of a writ without any return of the sheriff and without any steps whatever being taken in prosecution of the suit.

The entry ° settled” generally, or settled says plaintiffs or defendant’s attorney, is often made: it is certainly a loose mode of doing business; but I am not prepared to say it is a nullity, when ©n tire record. It would perhaps amount to an entry of satisfaction, or a discontinuance. However that might be, I cannot agree to give the entry, “ settled,” under the circumstances of this case, that effect It is a memorandum on the trial list furnished the judge of the special court, under the act of 1816, and which forms no part of the record. The trial list is his own private paper, which he has a right to do with as he pleases, and which, in fact, some judges convert, without scruple, to their own private purposes. In practice it is usual in some counties to make out two two trial lists, one for the court, the other for the bar, and in addition the prothonotary keeps a minute book, in which he marks the style of the suit, the proceedings in the cause, comprising the amendments to the pleadings, the names of the jurors, and the verdict, &c. and these entries he afterwards transfers to the continuance docket. In the trial list furnished the court, the judge makes his memorandums, which are intended for his own information and guidance during the term, noting the causes that are continued, ihose marked for argument, and when tried, states in short, “ tried,” and sometimes, though not always, whether the verdict was for the plaintiff or defendant, and the amount of the verdict. Sometimes the judge takes the list with him, sometimes he leaves it in his drawer, and at other times with the prothonotary: and whether he does the one or the other, is more frequently the result of accident than design. That an entry on a paper such as this, should have all the sanctity and inviolability of a record, would, I apprehend, introduce a laxity of practice pernicious in the extreme to the suitors. A record should be fixed and certain, and not depending as to its place, or in any other way, on the whim of any person. It is not my intention to define what in Pennsylvania constitutes a record, but it will be sufficient to shew, that a trial list of the judge does not partake of that character. If this entry be a record entry in this respect, it must be so in all others, and then it would follow, that.a judgment entered on the trial list, and not transferred to the continuance docket or any further notice taken of it, would effect subsequent purchasers, and in many cases the utmost degree of diligence on his part would not avail to avoid loss. To what does a purchaser look for the existence of judgments; not surely to the trial list, but to the docket: and if not regularly entered there, it would be contrary to every principle of justice, that he should be injured: for in such case he would have no notice, either express or implied. The advocates of the contrary opinion, seem to me to be carried away with the hardship of the plaintiff’s loosing his debt, when he has obtained a verdict and judgment. But is it not much more hard, that the innocent purchaser should bear the loss, when he has taken every pains to inform himself by regular searches in the proper offices. It is the duty of a plain tin who obtains a judgment, to see that the regular entries are made; and if any loss arises from the default of the prothonotary, it is the plaintiff, from whose neglect, in some measure, it has arisen, who should bear the burthen of a law suit, and not a subsequent purchaser, who had nothing to do with the transaction, and who has taken every pains, by the necessary searches, to inform himself of the existence of liens.

Huston, J. and Smith, J. dissented.

Decree of the court of Common Pleas reversed, and a decree entered for the appellants,


author: Per Curiam.

text:
    DANIEL BEITLER and JACOB HOKE against GEORGE ZEIGLER,
    IN ERROR.
    The judgment of quod computet in an action of account render is interlocutory, upon which a writ of error will not lie.
    Error to Adams county.
    This was an action of account render, upon which judgment quod computet had been entered by default upon rules to plead', and at the instance of plaintiff) auditors were appointed, when this writ of error was sued out; which

      Stevens, for defendant in error,
    moved to quash, on the ground that a judgment quod computet is not a final judgment upon which a writ of error will lie.
   Per Curiam.

Let the writ be quashed.


author: Smith, J.

text:
    ALEXANDER SEARIGHT against GEORGE CRAIGHEAD and GEORGE EGE, who survived DANIEL FUNK.
    IN error.
    The acknowledgment of a debt, barred by the statute of limitations, by a partner after the dissolution of the partnership, does not operate to'revive the debt, and avoid the statute of limitations, as to the other partners.
    Error to the court of common pleas of Cumberland county. This case, the facts of which are sufficiently stated in the opinion of the court, was argued by

      Alexander, for the plaintiff in error,
    who cited Yea. v. Fouraher, 2 Bur. Rep. 1099. Wisier’s Ex’rs v. Gray’s Adm’rs, 5 Bin. 583. Sluby v. Chomplin, 4 John. R. 461. Morns’ Lessee v. Vanderin, 1 Dali. 65. Miles v. Moodie, 3 Serg. <iy Ramie, 211. Henwood v. Cheesman, ibid. 500. Fries v. Boiselet, 9 Serg. Razde, 128. Quantoclc el ais, v. England, ■ 5 Bur. Rep. 2630.

      Penrose and Carothers, contra,
    who referred to Fries v. Boiselet, 9 Serg. ¿c Ramie, 129. Eckert v. Wilson, 12 Serg. dy Razde, 393. Weister's Adm’rs v. Gray’s Adm’rs, 5 Bin. 573. Slocum v. Perkins, 3 Serg. Sp Razóle, 295.
   The opinion of the court was delivered by

Smith, J.

The original action was brought by the paintiff in error against the defendants, on the 11th of December, 1823, to recover the value of certain goods sold and delivered. The' defendants pleaded non assumpserunt, and non assumpserunt infra sex annos. Issues were joined, and, at the trial, a verdict was returned for the defendants, and judgment thereon rendered. Certain points had been presented to the court, to the answers to which, exceptions were taken by the plaintiff’s counsel, and are now assigned here for error.

Two errors have been assigned upon the charge of the court, on the subject of the act of limitations; and in answer to the points ■put by the plaintiff’s counsel. The court were requested to charge the jury, “ That if Ege offered to pay one third of the debt, the offer was effectual as to the whole debt, for if liable at all, he is liable for-the whole.” To which the court below answered, (and so instructed thejjury in their charge,) “That the suit was a joint one,. against the defendants as partners. The claim was against the. three defendants, as liable jointly, and severally for the whole; and that an offer by George Ege, under these circumstances, after suit brought, to the plaintiff’s 'attorney, to pay him one third of the debt; for the purpose of getting the lien of the whole judgment removed from his land, and the offer not accepted, would not in law remove the operation of the statute of limitations; such an offer under such circumstances, would not remove the barrier against the plaintiff’s recovery, if it otherwise existed. This point is vague and uncertain in its terms; as applicable to the evidence in the cause, we cannot answer it in the affirmative. -

“It is unnecessary to consider it ás an abstract proposition, not refering to any evidence in the cause.”

If this answer of the court be considered with reference to the law, as to an offer to compromise a disputed claim, nothing is better settled than that such an offer, not accepted, can never be used as evidence against the party who made it. This is abundantly clear from the case of Slocum v. Perkins, 3 Serg. & Rawle, 295.

But if this answer be considered with reference to the time, and substance, to which the evidence on which it is a commentary, relates, it then presents another question, which may be considered with the second error alleged, as it is involved in it.

The plaintiff’s counsel requested the court to charge the jury, “ that a promise made after suit brought, is as effectual as if made before,” which the court refused to do, and charged the jury in the negative of this proposition.

It may be remarked, that the court below gave the plaintiff the full benefit of the evidence as to the declarations made by George Ege, “ that, if the debt were a just debt, he would not plead the statute of limitations,” as the court submitted it as a matter of fact, from the evidence, whether this admission was qualified by the expression of unwillingness to pay, and a denial of the honesty of the debt: and indeed the plaintiff’ has not assigned specifically for error, the charge of the court with regard to this evidence, although elicited by another point put by him.

An able English judge has said, that the two’ best statutes in their books are the statute of frauds and the statute of limitations. Conflicting, and indeed inconsistent decisions, upon the latter statute, are, h'oWevef, to be found in the English books of reports. And sdme of them are unquestionably, a plain departure from the express provisions of this most salutary statute; and at one period seé'med to1 threaten it with destruction, by a kind of judicial legislation; and until lately a struggle seems to have been made to* avoid the effect 6f it.

It would appear, in tracing this subject, that at first, all agreed,that there must be an express promise to take a case ótífr of the statute; Afterwards; it was decided, that an acknowledgment of the debt, was at the utmost only evidence from which a promise to pay might be' inferred by the jufy; but if á bare acknowledgment only was found by them,- it would not be sufficient.- Then Lord ■Mansfield held, that a bare acknowledgment of a debt, even after action brought, would be sufficient to sustain the action, although not commenced, till after the expiration of the six years.- And we are told, (and that by an' English judge,) that this was adhered to till the principle vvas carried to such a degree of absurdity, that a declaration of a defendant that he' would not pay, 5 Maul & Sel. 75, was held a sufficient acknowledgment to take the case out of the statute. The cases theinselves can hardly give us further light, but rather tend to confuse and mislead; and the force of precedent which they established, for a long time restrained judges from vindicating the' statute, and placing its construction on rational grounds, although almost at every step, they mourned over the condition to which it had been .reduced. Our own courts had followed these decisions to their" full extent; but the supreme court of this State was the first, or among the first, to discover that the decisions had gone too far — and the case of Wistor’s Ex’rs v. Gray’s Adm'rs. in 5 Bin. 573, (and the decisions hereafter cited,) led the Way to a rational construction of cases under this law. In England, the courts have been retracing their steps, and have got, or are getting, back to the plain construction and meaning of the statute.

Reason, then* has at last prevailed over precedent, and the statute has been restored to what the legislature originally intended it to be, a protection against stale and dishonest claims, the evidence as to which has been consumed by time, or otherwise lost.

To take the case out of the act of limitations, an express promise to pay is hot necessary, but if the plaintiff'rely on admissions of the defendant, he must show such admissions as may fairly support the inference of such a promise. If, therefore, the admission be qua- lifted in a way to repel the presumption of a promise to pay, or if it be accompanied with words inconsistent with a promise to pay, it is not evidence of a promise to take a case out of the act of limitations. Eckert v. Wilson, 12 Serg. & Rawle, 393. Roosewalt v. Waite, 6 John. Chan. 290. Clementson v. Williams, 8 Cranch, 72. Fries v. Boiselet, 9 Serg. & Rawle, 128.

It is settled, that the acknowledgment of a debt by one partner, after the dissolution of the co-partnership, is not sufficient to take the case out of the act of limitations as to the other partners. Bell v. Morison et al, 1 Peters, 373, lately reported. But in the case before us, the admission, such as it was, was not only after suit brought, and long after the act of limitations had run against the debt; but after all connection had ceased to exist between the defendants as partners on their contract to make the road in 1814; for we find in 1821, the accounts were finally settled between them, and balances struck.

The admission then was by one partner, (taking it for granted that the defendants had been partners,) after the dissolution of the co-partnership, and after suit brought. I am aware that in the case of Wistar's Ex’rs v. Gray’s Adm’rs, 5 Bin. 573, it has been decided, that an admission, which takes a case out of the act of limitations, does not operate to revive the old debt; but is the evidence of a new promise, of which the old debt is the consideration; but without stopping to inquire, whether such admission, after suit brought, is sufficient in an ordinary case, we proceed to consider the other question involved. Is such admission, made by one partner at any lime, after the dissolution of the firm, effectual for this purpose! This part of the case has in fact been recently decided in two cases, which I will mention. The law is well settled, that after the dissolution of a partnership, the partners cease to have any power to make a contract in any way binding on each other. The dissolution puts an end to the authority, and operates as a revocation of all power to create new contracts. This principle, taken in connection with that already referred to, that the admission is evidence of a new promise of which the original debt is only the consideration, brings us to the conclusion, at which the supreme court has already arrived, after full argument, that the acknowledgment by a partner, after the dissolution of the co-partnership, will not take the debt out of the act of limitations, so as to make the co-partners liable. This point was so decided in Philadelphia, at the December term, 1827, of this court, in a case in which his honor, justice Rogers, delivered the opinion of the court, which will be reported. It was also, a short time afterwards so decided by the supreme court of the United States, at their January term, 1828, in the case above cited, of Bell v. Morrison, et als, reported in 1 Peters, 351, 373, where, in the very able and eiaborate opinion of that court, delivered by Mr. justice Story, it is ' said, “ that after the dissolution of a partnership, no partner can create a cause of action against the other partners except by a new authority communicated to him for that purpose. It is wholly immaterial what is the consideration which is to raise such cause of action; whether it be a supposed pre-existing debt of the partnership or any auxiliary consideration which might prove beneficial to them. Unless adopted by them, they are not bound by it. When the statute of limitations has once run against a debt, the cause of action against the partnership is gone. The acknowledgment, if it is to operate at all, is to create a new cause of action, to revive a debt which is extinct; and thus to give an action which has its life from the new promise implied by law from such an acknowledgment, and operating and limited by its purport. It is then, in its essence, the creation of a new right, and not the enforcement of an old one. We think that the power to create such a right does not exist, after the dissolution of the partnership, in any partner.” After this, to say more on this subject, or to run through a bead-roll of cases, for information, when the case itself has been so recently decided by two of the highest tribunals, would really be an idle parade, or waste of time. It is only necessary to add that there is no error in the decision of the court of common pleas, and the judgment is therefore affirmed.

Judgment affirmed.


text:
    JOHN S. BRADY, SAMUEL LYON and SAMUEL MURDOCK, Executors of PARKER CAMPBELL, deceased, against ANDREW COLHOUN and JAMES COLHOUN, Administrators of JOHN COLHOUN, deceased.
    IN ERROR,

      Campbell, in 1805, bought of W. 5000 acre? of land at four dollars per acre. The purchase was at a credit of eight years, with interest at three per cent, after which the principal was to be paid at three, six and nine years, reserving six per pent, on unpaid balances. By settlement made in 1819, Campbell had paid the interest to W.-up to that time, and four thousand four hundred and twenty-nine dollars and forty-two cents oil account of principal.
    In an action of assumpsit, brought in 182?, after Campbell’s death, against the administrators of Colhoun, for money so paid to W. in which the evidence to .charge tlje defendants consisted of a series of letters written by Colhoun to Campbell from 1805 to 1,814, from which it appeared that Colhoun had been let into a participation in Campbell’s purchase; held that six letters from Campbell to Colhoun, in a period of as many years, from 1814 to 1820, in which there was no allusion to the subject, were evidence of the recession of the agreement between Campbell and Polhopipp.

    The liability of Colhoun to contribute for the payments of Campbell whether more or less than his proportional part, would depend on whether the parties had agreed to aportion the profit or loss, which was a fact for the jury.
    There may be a. partnership to trade in land, and it may, as in any other case, be limited to purchasing only, the profit and loss being divisible as stock; but. this relation does nor nepessarily or naturally arise from the bare circumstance of a joint purchase,
    Joint purchasers, without an agreement of partnership, would not be entitled to the remedies, nor subject to the responsibilities of partners.
    If Campbell, as a joint purchaser, paid all the interest as it became due, a right of action for a moiety of each payment, accrued instantly to him against Colhoun, which would be barred by the statute of limitation, when six years had run before suit brought, '
    The court below charged the jury, that if the contract were not rescinded between Campbell and Pqlhoun, the former could recover for interest paid. The jury found a general -verdict for defendants. Held that it appeared that the jury >vent on a distinct ground of fact, “ the recissiojp. of the contract,” and if error had been committed in the charge as to the principal, this court would not reverse on that ground, as it wais without prejudice to the party,
    Writ of error to a special court pf common pleas of Franklin county,
    This suit was an action of indebitatus assumpsit, brought by tlie plaintiffs for money paid, laid out and expended, by the plaintiff’s ' testator for the defendant’s int,estafe,

      Parker Campbell, the testator, on the 25th d,ay of May, 1805, contracted with the Washington College, for the purchase of five thousand acres of land, in Beaver county, for which he agreed to pay four dollars per acre. By the agreement, interest at three per cent per annum on the purchase money, was to be paid for eight years; when so much of it as remained unpaid, was to bear interest at six per cent, the interest to be paid semi-annually, and the principal was to be paid in equal payments, at intervals of three years, after the expiration of eight years.
    No deed was executed by the College to Mr. Campbell, but the College retained the legal title as a security for the payment of the purchase money. On the 1st of October, 1819, it appeared by a settlement then had with the College, that Mr. Campbell had paid the interest up to that time, amounting to fifteen thousand dollars, and the sum of four thousand four hundred and twenty-nine dollars and forty-two cents, which was credited on account of the principal by the College,

    In the year 1824, Mr, Campbell having failed to make further payments, the College brought ejectments to recover the lands sold, obtained judgments by arbitration, and possession under them. The whole negociation with the College was in the name of Mr. Campbell, and Mr. Colhoun, who was the father-in-law of Mr. Campbell, was not known in the contract by the College; but to prove his connection with it, and make him liable for a portion of the purchase money paid, letters from him to Mr. Campbell, dated in 1805, 1806, 1807, 1813, and on the 8th of June, 1814, were given in evidence, in which, Mr. Colhoun admitted that he was interested in the purchase; spoke of Mr. Campbell calling on Mr. Reed for one half of the interest on the purchase money; called it his part of the interest, and informed Mr Campbell that he had a number of advertisements printed for the sale of “our Academy lands,” and would distribute them.
    The defendants, who conceded, that at one time there had been a contract of some sort between the parties, for the purchase of these lands, relied on evidence to show that it was abandoned, and with this view, offered in evidence six letters, dated respectively the 19th September, 1814, 5th September, 1815, 11th December, 1816, 5th November, 1819, and 27th May, 1820, from Mr. Campbell to Mr. Colhoun, and in which no allusion was made to the purchase of the college lands. To this evidence the plaintiffs objected; but it was received by the court, who signed a bill of exceptions, which was assigned for error here.
    The circumstances of the parties, the embarrassments of Campbell, in part growing out of this contract with the College, and the affluence of Colhoun were relied upon by the defendants to fortify the defence on this point, and much evidence was given, which it is not necessary to the proper understanding of the case here to detail.

      ' Parker Campbell survived Mr. Colhoun some' years, and died in July 1824; and this suit was brought on the 6th February, 1827.
    The plaintiff’s counsel (among other points,) requested the court to charge the jury. “That John Colhoun’s administrators and estate are liable to Parker Campbell’s executors for the one half of all money he may have paid on the contract with the Washington Academy; and are not confined, if otherwise entitled to recover, to the excess of payment beyond the half that Parker Campbell was bound to pay.”
    On this point the court charged the jury — “That three per cent; per annum became due, and was payable semi-annually, and after eight years six per cent. The College had a right to demand this sum at the periods stipulated. If there was a contract between Messrs. Campbell and Colhoun, by which each had an equal interest, and each was bound to make equal payments under the contract with the College; then, any sum paid from time to time in discharge of the accruing interest, by any one of the parties, beyond his proportion, was paid for the other, and the law would raise a promise to repay, but any sum paid by either, beyond the interest, that is in discharge of the principal, would be a payment on his own account, provided such payment did not exceed his proportion of the purchase money; and being a payment-on his own account of his own debt, the law would raise no promise on the part of the other to repay it.”
    This part of the charge was assigned for error here.
    - The court, in answer to a point put by the defendant’s counsel, as to the statute of limitations, which was relied- on in defence; charged the jury, that” if Messrs Campbell and Colhoun had a joint interest in the purchase, and Mr. Campbell acted as the agent, and in trust for Mr. Colhoun, and went on from time to time paying his money on the contract, as contended by the plaintiffs, in contemplation of carrying the contract into effect, and, in this way, paid more than his proportion of the the instalments annually due, being under a legal obligation to do so, he would also have the implied assent of Mr. Colhoun.” “ The contract was a continuing one —the trust was to exist throughout the whole concern, ’and when the contract should' be consummated, the separate rights of each would be ascertained. While it continued, each might act for thé other — intermediate settlements were not contemplated. It would, therefore, under such circumstances, be in fraud of the statute of limitations to account each payment a separate act, and liable to its operation.
    The verdict was for the defendants.

      Washington, for the plaintiff in error.
    1st. As to the bill of exceptions. — The six letters dated after 1814, (admitted in evidence,) showed no connection with, or allusion to the contract in question, and were relied on to show that it was abandoned. They were wholly irrelevant, and testimony of a dangerous character. It is put in the power of a party to select such as suited his own purpose, and suppress the residue of the correspondence; the whole of which he cannot be forced to. exhibit, and any part of which he may destroy.
    2d. As to the charge of the court. — Colhoun was not a contracting party with the College, and to it he never owed any liability; his liability was to Campbell.

    If the court below were right, then Campbell could not have called on Colhoun fo pay, till he had paid his full half, which, as the principal was not all to be paid for seventeen years, Campbell could not have recourse to Colhoun until that time. • This view is inconsistent with the letters of Colhoun, and the nature of the transaction. He recognized his liability to pay his portion of the money as the contract progressed.
    But suppose one half of the purchase money to have been paid, and the College had taken back but half the land; Colhoun could not recover any part of the land, because, the remedy must be reciprocal; and if Campbell cannot sue when he has paid but the one half of the purchase money, Colhoun could not, in the case supposed, recover any portion of the land. Here, the contract with the College was rescinded, and the liability of the parties to each other for money paid on the contract, while it subsisted, attached.
    In the case of co-sureties, the one can only recover for what he pays beyond his proportion, because if the payment be less, the liability of the co-surety remains; but if the principal contract is at an end, then the surety can call on his co-surety for contribution, although he has paid less than his proportion of the entire sum of the contract.

      G. Chambers and MCulloh for the defendants in error.
    1st. The case on the part of the plaintiffs was exceedingly obscure. The precise terms and nature of the contract upon which they relied, did not appear. They inferred its existence, by inference from the expressions used in letters prior to the year 1814. The defendants, admitting that a contract of some sort, in reference to these College lands, had once existed, relied on many circumstances to establish the. fact that it had been abandoned.' The letters, dated after that period, from Mr. Campbell to Mr. Colhoun, proved that a correspondence had been continued between them, and that Mr. Campbell• did not, in it, refer to this contract, and insist on the liability of Mr. Colhoun to him: although the contract then become more interesting: as the rate of interest then increased, and Mr. Campbell after that time became embarrassed. In a case of circumstances, which, on the part of the plaintiff, as well on the part of the defendant this was; the existence of this- correspondence, and the silence of Mr. Campbell, as regards the contract were powerful circumstances to show that the contract no longer subsisted.- But if these letters proved any thing, however slight, in reference to the defence, it Was proper' to1 permit them to go to the jury; particularly as both parties were dead, and the transaction involved was an ancient One.- It was for' the jury to say if any letters had been withheld.
    2d. The jury gave a general verdict for the defendants,- Which could only he on the ground that the contract alleged, had been rescinded.
    And, if the coürt did err' in their charge to the jury, on this point, it was without any prejudice to the plaintiff, as the jury decided on another ground.
    This is not the case where the court cannot ascertain the point upon which the verdict was given; here it may be readily separated and distinctly ascertained/
    ’ The nature of the contract was wholly a matter of conjecture.
    If it were between Campbell and Colhoun,- after Campbell bought, it Was a sale to Calhoun by Compbell, and'should have been declared upon by the plaintiff as such. And in case the land had been lost by the default of Colhoun, if Campbell had -paid his full proportion of the purchase money, his remedy would have been on the specific contract, and a general action of assumpsit for money paid to the use of Colhoun,- is not the remedy.
    The action here is founded on the idea that the purchase had been made by Campbell for' both.-
    This difficulty as to the nature of the contract lays at the door of the plaintiff, who lay by so long without attempting to enforce any liability on the defendant, and although, as respects a creditor it is enough to know,- and establish a partnership by reputation; yet as between the parties, on a question of liability,- one partner' must establish the contract distinctly.
    The charge of the court below was-, that the plaintiff might calf on the defendant for contribution for a payment of more than his proportion of the interest.

    This would stop in 1813, when the principal Was due; and any' payment by the plaintiff- after that, was- less- than his proportion of principal and interest. This he was hound to pay, and he could therefore cast no liability on the defendant by paying this.
    As between partners and co-sureties the law is well settled. One partner or surety cannot sustain an action agáiíist his cofiartner or co-surety for the payment of his proportion of the debt, t is for the excess beyond this only that a right of action exists. Gozo. 113-14. 1 Madox Chan. 191. Ex part» Crisp. 1 Atkins 134-5. Sozcyer v. Lyon, 10 John. R. 32.

      But here, the contract was not rescinded by the recoveries in the ejectments instituted by the College; nor are the defendants affected by any negociation with the College, which is without their privity. The vendor, who obtains possession by ejectment for default of his vendee, does not hold as of his former estate, nor is the contract rescinded by such recovery. Martin v. Youst, 3 Serg. <$• Ramie, 432. Marlin v. Willing, 7 Serg. fy Ramie, 297. The vendor holds possession as a security in such case, and as to the vendee, chancery relieves against the lapse of time, especially where a large , part of the purchase money has been paid. The question as to mhat time the vendee shall be allowed, after the vendor has taken possession on liis default, lo redeem, has not been settled; but it is clear that in such, case the contract is not rescinded.

      Crawford, in reply.
    The contract between Colhoun and Campbell, upon which we based the liability of the former, was involved in no doubt or obscurity. It was fully made out by the letters of Mr. Colhoun, which the plaintiff’s gave in evidence, and which, ■containing admissions against his interest, are the strongest possible evidence on this point.
    The letters which did not refer to this transaction, but to the affairs of the family, ought not to have been received in evidence..
    The presumption of abandonment of the contract would have been as well sustained by the fact of no letters being given in evidence, as by these letters. It is because they contain no evidence that they were received. The law of evidence would not permit conversations between parties, in which nothing was said about the transaction in issue to be proved.
    The evidence here was of no better character: and their introduction brought before the jury little extrinsic circumstances, which ought not to have reached the jury at all.
    It is not only liable to these objections, but those already urged on account of the danger of tolerating this kind of evidence.
    2d. It is against all equity, that Campbell, in a case of this sort, should not have a right to recover a proportion of any sum which he had paid. If it be conceded that he was entitled to recover for interest paid, as the court below charged the jury, on the same principle, he should be entitled for his payment of principal.

      Campbell was the only party known to the College in the contract, so that one half of every dollar paid by him was for the use of Colhoun, who was thus unknown to the vendor.
    Where one of two sureties pays the one third of the whole debt, and the principal pays the balance, the surety could most certainly call on his co-surety for contribution. So if one of two partners, pays one fourth of a debt due by the firm, upon a compromise of the whole demand, it is equal clear that he may have contribution from his co-partncr. It is only where the liability remains, that the surety, or partner cannot be reimbursed for any payment less than the half of the debt; and when the hooks speak of half of the whole debt, they mean the half of the whole debt demandahle. The case in 10 John, went upon a different principle. There the liability remained, and the-defendant’s land was subjected to it. Now, by the recovery of the land in ejectment by the College, all the right of the College to call on Campbell or Colhoun, is gone: although it be true that the vendor in such case* ■holds as a trustee for the vendee, who may redeem.
    It is impossible to ascertain on what point the jury found, or that they- were uninfluenced in their finding by the charge of the court on this point. When the court told the jury that as-to the-principal we had no right to recover, it may have induced the jury to believe that we had no right to recover on account of interest: and the-court will not sustain the judgment upon a conjecture that the jury found on another point, because by possibility they may have so found.
   The opinion of the court was delivered by

Gibson, C. J.

The evidence to charge the defendants consisted' of a series of letters written by Colhoun; from which it would seem, he had been let into some sort of participation in Campbell’s purchase.. All allusion to the subject, however, having been discontinued on the part of Colhoun for a period of thirteen years, the defendants-offered as additional evidence of the recision of their agreement,, six letters written by Campbell in a period of as many years, in which, also, there is no allusion to the subject, although it had, at one time been a leading topic of their correspondence. We cannot - admit that these letters were irrelevant, because the writer was-silent on the subject of the agreement: on the contrary, they were relevant for that very reason. In connexion with the lapse of thirteen years of silence on the part of Colhoun, the silence of Campbell for at- least six, was a powerful circumstance;; and were-the objection!of irrelevancy to prevail here, it must necessarily prevent a parly, under- any circumstances, from being affected by silence, which, though often more significant than words, has no positive allusion to any thing.. Neither do we admit the force attempted to be given to the objection that the defendants may have suppressed all but such parts of the correspondence as-suited their purpose. As to that, the plaintiffs had a right to. examine them on oath; and this, I understand, though tendered, was-declined.

In respect to the charge, it seems to me that both parties put to the court as a conclusion of law, what was properly a matter for the jury — the supposed liability of the defendants to contribution for the payments of Campbell whether more or less than his proportional part. It is obvious that this depended, in the first instance, on whether the parties had agreed to apportion the profit or loss; which is of the essence of partnership. Although it be by no means common, there may be a partnership to trade in land; and it may, as in any other case, be limited to purchasing only, the profit cr loss being divisible as stock; but this relation does not necessarily, or even naturally, arise from the bare circumstance of the parties having purchased jointly. The existence of partnership as deducible from faqts and circumstances, is not for the court but the jury; and in submitting propositions supposed to result from the evidence as conclusions of law, the plaintiffs abandoned the notion of a partnership having existed in fact, and went to thfe court on the supposed liability of the defendants as representing a joint purchaser. Then to put the case as favourably to them in point of fact as it will bear, we must suppose the parties had agreed to stand, as between themselves, in ■ the relation of joint purchasers, each separately paying kis share of the price, without being bound to bear an equal share of the loss; and in this aspect it is clear, they would not be entitled to the remedies, nor subject to the responsibilities of partners. The purchase was at a credit of eight years, with interest, at three per cent; after which, the principal was tobe paid at three, six and nine years, reserving six' per cent, on unpaid balances. Colhoun was taken into the purchase as if, it may be supposed, he had been originally concerned; and if Campbell paid, as there is reason to believe he did, all the interest as it became due, he paid a moiety of it to the use of Colhoun, for which a right of action instantly accrued, but which was subsequently barred by the statute of limitations. Laying partnership out of view, as the parties themselves have though fit to do, there was no agreement for advances, nor any thing which looked to the settlement of a final account. It even was not part of the agreement that they should contribute to a common fund. The advances of Campbell were in pursuance of his original liability for the whole, and they became demandable, not by virtue of any previous contract with Colhoun, but the contract which arose from the fact of payment, by implication of law. There was nothing to prevent Campbell from maintaining an action for a moiety of each payment the instant it was made; and I therefore cannot concur in the opinion expressed at the trial, that the statute was not a bar. The same obstacle would present itself to'a recovery,of the principal,*were it established-that Campbell, paid more than his share. He made various payments and th© jury were instructed that he had paid nothing to Colhoun's use* it being taken for granted that he had at no time paid more than his proportion of the instalment last due. Now the fact would depend on the manner of the appropriation, it being abundantly clear that a debtor may apply his payments to any particular debt or account, at his election; and had the plaintiffs desired the court to put the cause to the jury on the fact of Campbell’s having paid any particular instalment in.full, it would have been error to refuse it. They, however, thought fit to put the whole to the court as a matter of law, and it seems to me, therefore, that the principle assumed being right, we cannot say there was error in the application of it.

There is, however, another ingredient beside the statute of limitations, by which a defect in this part of the case would be cured. It appears from the whole matter, that the jury went on a distinct ground of fact, the recision of the contract. On no other ground could a verdict have passed for the defendants, as any application of the rule laid down, would have produced a balance to the plaintiffs. The statute of limitations being put out of the way, (whether erroneously or not, is at present immaterial,) the plaintiffs would have clearly been entitled to a moiety of the .moneys paid to keep down the interest. It being clear then, that the jury found on a distinct question of fact, which was decisive of the cause, it would be oppressive to reverse for a misdirection in law, if such there were, which did not relate to it. A court of error invariably disregards whatever has not contributed to the event; so that had there been misdirection in other parts of the case, it would have been insufficient to avoid the consequences of the verdict.

Judgment affirmed.


author: Huston. J.

text:
    JOHN MOORE against JOHN M‘BRIDE, Administrator of ROBERT M‘BRIDE, deceased.
    IN ERROR.
    ' In an action commenced by capias, a short minute of a recognizance of special bail, taken by the clerk of a prothonotary, in this form, “ J?. M. held in $200 cogn. coram. E. L. for J. H. Proth’y,” held to be sufficient.
    Writ of error to the court of common pleas of Cumberland county.
    This was a scire facias upon a' recognizance of special bail, to which the defendant pleaded “ mil tiel record,” and the court below gave judgment for the defendant, in which the plaintiff novr alleged error. • *
    The following is the entry of the recognizance on which this scire facias was issued.
    John Moore I 'v. > James A. Mitchell. )
    No. 28, August term, 1824.

      Capias debt on note under seal not exceeding $200. Bail in $200

      Robert M’Bride held in $200 cogn. coram Edward Leonard, for John P. Helfenstien, Proth’y. 5 May, 1824. C. C. and special bail entered. (Sh’ff $2 12.)
    In this suit the plaintiff obtained judgment upon report of arbitrators for one hundred and sixty-seven dollars and sixty-five cents; to recover which, (after the proper executions,) this scire facias was issued.

      Penrose for the plaintiff in error.
    A short minute of a recognizance is Sufficicient, provided it indicate the nature of the recognizance, so that the officer may make it out at large when it is required. Commonwealth v. Emery, 2 Bin. 431. A short note, such as “ A. B. in £40 to appear, fyc,” was held to be sufficient. 4 Burns’ Justice, 84, 18th edition. In this, case there could be no other recognizance but that of special bail. This is abundantly indicated by the docket entries: and if necessary, the court would consider the words, “ C. C. and special bail,” alleged to be the return of the sheriff, as part of the recognizance in order to sustain the proceeding. He also cited Welsh et al v. Vanbebber et al, 4 Yeates 559, and 1 Barnes, 4.

      Alexander, for the defendant in error.
    It is admitted that a short minute of a recognizance is sufficient, provided it shew the amount, and the condition upon which the recognizor is bound.
    But this recognizance is without the most important feature of a recognizance, a condition: nor is it at all indicated by any part of the minute. It does not appear whether the undertaking was absolute or conditional; and it follows that there is nothing from which the officer can make it into form.
    The scire facias set forth a recognizance of special bail, this minute does not show such a recognizance, for it does not indicate in any way the condition of such recognizance.

      The Commonwealth v. Emery cited on the other side is an authority for us. It is there decided, that the short minute of the recognizance should substantially shew the condition of the recognizance.
    The words, “ C. C. and special bail,” are manifestly the return of the sheriff and form no part of the recognizance.
   The opinion of the court was delivered by

Huston. J.

We readily forget what we once learned, and nothing; is sooner forgotten than forms of proceedings in foreign •courts, which we have scarcely learned, because we supposed them not to be important here. Every lawyer has looked into Compton or Sellon, or some of those books of practice which so properly gave the precise forms of entry in the several stages of the cause. Tidd’s Practice, in two volumes, in which we have no forms, has, in a great degree superceded the former authors. In many respects the short minutes, in this state, are not made precisely in the words used in England, or in other states. I do not admit, however, that in this respect the difference is against us. In the science of pleading, we are, perhaps, generally much inferior; and our short notes of pleas, replication and issues, have brought obliquy on our practice; and that far beyond what the truth required. The worst of it is, that this reproach in some mouths takes a wider range, and extends to every thing good or bad, and this pretty much in proportion as the censurer is unqualified to judge. I speak generally, with no reference to this cause, for there has been less occasion for the observation here, than we meet every day. ‘

For the benefit of those who have forgotten the forms in other countries, I will transcribe from Sellon the form of entering special bail in the King’s Bench and Common Pleas, in England. 1 Sellon’s Practice, 139.

In the King’s Bench it is taken before the judge’s clerk, although when filed it is a record. After the words of the recognizance are repeated to the bail, and he agrees to become bound, the bail piece is made out in this form:

In the Common Pleas the filazer attends with his book, and names of parties, &c. and a short entry is made to be drawn into form. If the filazer cannot attend, a bail piece is made in this form:

If the bail be not excepted to, this bail piece is carried to the proper office, in the respective courts, no other entry as bail, or of •the terms of the recognizance, is ever made. It is drawn into form. if the record he wanted, or declared on, as if entered at full length,' if necessary to sue it:

In every country and- age where law is practised, abbreviations, short notes, and technical words are used is cases of daily, or hourly occurrence, to save labour., When properly understood, they answer every purpose of setting every thing out at large. These short notes or abbreviations vary in different states; nay here in different courts; but if admitted at all, one is as good as another,, provided it indicates with certainty what was done. Here there was but one kind of bail known to the law, in that stage of the cause, and but one form of recognizance which could be taken. It cannot be pretended that any difference of opinion can exist as to what the bail engaged. The special bail is named, and the sum in which he is bound; and this is subjoined to the statement of the suit, on the docket, the date is added, and the name of the prothonotary’s clerk; it is impossible that there can be any mistake as to any one matter essential in the case.

The form used in this case is at least as certain as that used in England; this is said for those who think nothing right but what is English: it has every requisite. Once admit that a short note of the entry of the bail is- good, and that used here is as good as any other; and any other, indicating all that this does,, is as good as this.

Something was said about its being taken by the prothonotary’sclerk, and not by the prothonotary himself. This court has given, an opinion on that more than once, lately. I would just observe that in England, the recognizance, when filed, is a lien on land, as. much as a judgment, and always must be taken before a judge;, in point of fact it is always taken by the judge’s clerk..

Judgment reversed, and judgment entered for the plaintiff in, error.