text:
    Alexander v. Leckey.
    Assumpsit against a sheriff for the surplus of the proceeds of a sale under execution is barred by the statute of limitations.
    In error from the District Court of Allegheny.
    Assumpsit by a defendant in an execution, to recover the surplus which remained from a sale by defendant as sheriff under a fieri facias. Plea, the statute of limitations. The plaintiff proved his case, and there was no evidence of notice having been given him by the sheriff that there was a surplus. Lowrie, J., directed a verdict for plaintiff, reserving the question as to the effect of the plea; and subsequently gave judgment for defendant non obstante, &c., for the following reasons:—

      “It is true that the case of Cockram v. Welbye, tried in 1677, and variously reported in 1 Freem. 236, 1 Mod. 246, 2 Ib. 212, and 2 Show. 79, decides that in such a case the statute is no bar; and the case of Church v. Clark, 1 Root Rep. 303, contains an assertion in the same way; and the rule is cited with approbation by Mr. Justice Kennedy in the case of Williams v. Freeman, 7 W. & S. 361.
    “ But the point must be considered as still undecided by our Supreme Court; and we can hardly regard the case of Cockram v. Welbye as of conclusive authority, when we bear in mind that it was decided at a time when the statute was very differently estimated from what it now is, and when the courts in England were prone to treat the general rules created by statute with no undue reverence.
    “The decision is entitled to respect for its antiquity, and for the learning of the judges who pronounced it; but we.are not estopped from inquiring how far it accords in principle with more modern rules. And we must deny its authority altogether, if we find it to be opposed to the ordinary principles of construction of the statute of limitations, and leave it to the usual fate of cases, founded, not upon principle or general rules, but upon some fanciful notions of exceptional justice.
    “ The case of Cockram v. Welbye is so variously reported, that it is difficult to ascertain the form of action, or the ground of the decision. But certainly the principal ground of the decision is, that the claim, though not matter of record, is yet founded upon it, and has a strong relation to it; and this is, I think, a false foundation. Mr. Justice Scroggs, who differed from the rest of the court, thought that the receipt of the money raised a contract by implication in favour of the plaintiff, and that the action was properly founded upon this contract, and was of course barred. And upon this principle was decided, very shortly afterwards, the case of Oliver v. Thomas, 3 Lev. 367, for attorney’s fees, they not being matter of record as against his client.
    “Now, it is well settled, that actions on the case for negligence of duty, actions against sheriffs for insufficient and false returns, and actions by clients against attorneys, are all equally within the bar of the statute: Stafford v. Richardson, 15 Wend. 302; Rice v. Hosmer, 12 Mass. Rep. 127; Cæsar v. Bradford, 13 Ib. 169; Miller v. Adams, 16 Ib. 456; Mather v. Green, 17 Ib. 60; Howell v. Young, 5 B. & C. 259; Brown v. Howard, 2 Br. & B. 73; Whitehead v. Howard, Ib. 372; Short v. McCarthy, 3B. & Al. 626; 4 Harr. & McH. 419. It is also well settled, that where money is collected for another on a bond or judgment, the original security is, pro tanto, extinguished, and an implied contract is raised in favour of the party entitled to the money; which contract is within the statute: Penniman v. Vinton, 4 Mass. Rep. 276; Gemberlin v. Myers, 2 Yeat. 341; Finney v. Cochran, 1 W. & S. 112.
    “I think, therefore, that the case of Cockram v. Welbye has no foundation of correct principle, and that it cannot now be recognised as law; and that a sheriff collecting money on executions is within the protection of the statute of limitations.

      " It is argued that this claim is excluded from the statute, being a trust. If this were a technical and continuing trust, falling within the peculiar jurisdiction of chancery, this would be true. But being always remediable at common law, it is otherwise: Lyon v. Marclay, 1 Watts, 275; 1 W & S. 112.
    “I am unable to see why a sheriff, or any other collecting officer, should not be protected by the statute. He is as liable to lose his receipts as other people, and no more bound to take care of them. The statute has not excepted him from its protection. Why should the courts except him ? Is he, and are his representatives after his death, to be for ever liable to actions for moneys collected by him ? I think not.

      ‘ ‘ It is usually true, that the sheriff is not liable to an action for money collected until after demand made; but the statute runs from the time when the plaintiff might have made the demand: 15 Wend. 302; Wenman v. Mohawk Insurance Company, 13 Ib. 267; Little v. Blunt, 9 Pick. 488; Newman v. Kettelle, 13 Ib. 418; Norton v. Ellam, 2 Mees & W. 461.

      “ It is not necessary to decide whether, in an action upon the bond or recognisance of the sheriff, this plaintiff could be admitted to come in and assign, as a breach, the non-payment of a debt barred by the statute; though I think he could not, or rather, if he should do so, the plaintiff might meet him by setting up the bar of the statute. If the plaintiff could recover in this way, I should hesitate before I would say that his claim is barred simply because he has adopted the remedy of assumpsit.”

      Mellon, for plaintiff in error,
    cited 4 W. 179, 334; 7 W. & S. 361; 2 Show. 79.

      Washington, contra,
    cited 1 Mod. 245; 2 Ib. 212; 2 B. & B. 73; 2 C. & P. 228 ; 15 Wend. 302; 12 Mass. Rep. 127; 16 Ib. 456; 16 S. & R. 379.

      Sept. 11.
   Burnside, J.

I have carefully examined tbe opinion of the learned Judge of tbe District Court, returned with tbe record, and I think it a sound and correct view of tbe law as applicable to tbe case.

Judgment affirmed.


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    Beale v. Buchanan.
    The replication to the plea of payment with leave, &c., is merely formal, and the cause is substantially at issue within a rule of court, which declares the cause shall be considered at issue without a formal joinder, when a substantial issue is raised by the pleadings.
    Where there is a plea of nul tiel record, and a verdict on an issue of fact, and judgment is entered on the verdict; this court cannot intend that the former plea was disposed of, and hence an execution was held to have improvidently issued.
    In error from tbe District Court of Allegheny. .

      Scire facias to revive a judgment et quare executionem non. Pleas; payment with leave, and nul tiel record. On tbe cause being called, tbe defendant’s counsel refused to try for want of a replication. Tbe trial proceeded ex parte, and judgment was entered “ on tbe verdict.”

      A fieri facias then issued, and this writ of error was sued out.

      Alden, for plaintiff in error,
    cited 16 S. & R. 350; 5 Ib. 71; 5 Barr, 301, and the 25th Rule of the District Court.

      McGonnel, contó.

      Sept. 20.
   Rogers, J.

Where there are two issues, one of fact, tbe other of law, it is discretionary with tbe court which they will try first. This has been repeatedly held with regard to demurrers; and no reason has been suggested why tbe same rule should not be applied where one of tbe issues is on the plea of nul tiel record. After a trial on tbe merits, tbe court will not listen to an objection that there was no replication or issue, Thompson v. Cross, 16 S. & R. 350. But it is decided in Bratton v. Mitchell, 5 W. 70, that tbe court will not compel tbe party to try, until tbe cause is put into legal form by an issue properly formed between tbe parties on the record. But here the cause was substantially at issue within the true intent and meaning of the 18th Rule of Court, which declares, that if an issue be formed substantially by the pleadings, the case shall be considered at issue without a formal joinder, which may be entered by the prothonotary, or supplied, if desired, at any time. To the plea of payment with leave, &c., non solvit in our practice is a matter of form which may be entered by the prothonotary, or replied, if desired, at any time. There is nothing in the objection that the cause was not properly on the trial-list, as the cause, as before remarked, was substantially at issue, even admitting that to be an error we can correct.

It remains to notice the last exception, which has something respectable in it, viz: that the fieri facias was improvidently issued, because issued before all the pleas were disposed of. The defendant plead payment with leave, and nul tiel record. The issue in fact only was tried, and on that issue only was judgment rendered. Had the court rendered judgment generally, we would by intendment, as has been already decided, hold it to apply to both issues; but this we are prevented from doing by the entry “judgment on the verdict,” excluding the presumption that includes both issues. The plea of nul tiel record denies the existence of the record. To this the replication is an averment of its existence, which when averred by the plaintiff, a day is given to bring it into court. On the day appointed for producing the record, it, is, or it is not produced. Whereupon, if produced, judgment is given that the plaintiff has produced the record, or otherwise judgment is given that he has failed in producing it: Tidd’s Practice, 801. There being then no judgment on the plea of nul tiel record, we are of opinion the fieri facias must be set aside.

Meri facias set aside; record remitted to the District Court to proceed to judgment on the plea of nul tiel record.


author: Per Curiam.

text:
    King’s Appeal.
    A separata execution against one partner was left with the sheriff, and afterwards a joint execution issued against the firm. The sheriff returned on all the writs that he had sold the property of A. and B. (the two partners), for, &o.: the return shows that the joint property was sold, and hence the separate execution-creditor cannot come on the fund until the joint creditors are paid.
    Appeal from the District Court of Allegheny.
    Griffiths and Dixon were partners. _ On the 27th July, a fieri

      facias against Griffiths was left with the sheriff by King. On the same day Church & Carothers left with the sheriff a fieri facias against all the members of the firm. On the 30th July, Faber left a similar fieri facias.

    The sheriff returned on each of the writs, “ Levy made on personal property of George Griffiths, and made by sale of the same $234; also levy made on personal property of Griffiths & Dixon, and made by the sale of the same $2,224.39, in all the sum of $2,458.85, which I have applied to the payment of Church & Carothers’s execution $924, to costs $67, and paid the balance, $1,466, into court.”
    The proceeds of the separate property were paid to King, and Church & Carothers’s execution was also paid without dispute. The question was, whether King was entitled, as against Faber, to be paid in full out of the fund in court.
    Hepburn, P. J., in giving judgment, said:—

      “ It is contended on the part of Alexander King, the separate creditor, that his execution being prior in time and the first lien, and it being the duty of the sheriff to seize and sell under it the separate interest of Griffiths in the partnership effects of the firm, and the sheriff having actually reported a sale, it must be presumed that the sheriff did his duty by selling on the process in his hands consecutively in the order of their date, and that such sale was of the separate interest of the defendant Griffiths, and that his creditor is therefore entitled to the proceeds.
    “ On the part of E. and F. Faber, the joint creditors, it is contended that the sale reported by the sheriff is distinctly that of the partnership property of Griffiths & Dixon, and this fact being stated, there can be no presumption to the contrary; and that the sheriff having in his hands joint executions sufficient to absorb the entire partnership effects, the law would not require him to do so nugatory an act as to sell the separate interest of one of the partners, when it was clear his interest was of no value. ■

      “ The creditor of any one partner may take in execution that partner’s interest in all the tangible property of the partnership, and may sell the undivided interest of his debtor. The purchaser becomes a tenant in common with the other partner, and takes the property in the same manner as the debtor himself had it, subject to the partnership debts and to the rights of the other partner: Collyer on Part. 472. These principles are also fully established by numerous authorities cited at the argument. It will be sufficient to refer to Taylor v. Henderson, 17 S. & R. 456; Knox v. Summers, 4 Yeat. 477; 8 W. & S. 68; 24 Wend. 396; 2 Johns. C. Rep. 548; 9 Greenl. 28.
    “If, then, the separate creditor of an individual partner can levy and sell only the separate interest of his debtor in the partnership effects, subject to the partnership debts, it follows very clearly, that the partnership creditors can claim nothing out of the proceeds of such a sale. This doctrine is fully recognised in Doner v. Stauffer, 1 Penn. Rep. 198, where it is said that a separate execution-creditor sells, not the chattels of the partnership, but the interest of the partners encumbered with the joint debts; and the joint creditors have therefore no claim to the proceeds: See also 1 Pet. O. C. Rep. 460, 465.
    “If the property sold on King’s execution was only the separate interest of his debtor, Griffiths, there could be no controversy between him and the joint creditors, and he would be entitled to the money. If the money in controversy is the proceeds of the joint property of Griffiths & Dixon, made on the joint executions against them, then, just as clearly, the separate creditor is excluded, and the money has been rightly distributed by the auditor.
    “ The whole difficulty in this case arises from the sheriff’s return to the execution of the separate creditor. On that he has reported a sale of the partnership property, amounting to $2,224. That execution was not a lien upon the partnership effects; and under it, the sheriff could no more seize and sell that property, than he could the property of an entire stranger to the proceedings. But the sheriff having reported the sale, what is the effect of his return ?
    “ The counsel for the creditor of the separate partner contends, upon the authority of Doner v. Stauffer, that it must be construed as a return that he had sold what he was entitled to sell, the separate interest of the debtor, and that the separate creditor is therefore entitled.to the money. But we think that case establishes no such principle. There the sheriff had separate executions against each of the individual partners, but he had no joint execution against the partnership property. His sale, therefore, was of the separate interest of the several partners; and the court held that the separate creditors were entitled to the proceeds of the sale, to the exclusion of the joint creditors. In the case before us, if the doctrine contended for by the separate creditor, that the $2,224 must be considered as the proceeds of Griffiths’ interest, then what becomes of the return to Faber’s execution, where the sheriff also reports a sale of the partnership property to the same amount. If the sale of Griffiths’ interest produced $2,224, and the sale of Griffiths & Dixon’s interest produced the same sum, then it follows that but one-half the amount produced has been paid into court, But manifestly the sheriff sold, under all the writs, the entire partnership stock, at one operation, and has, by his returns, ascertained the proceeds of the partnership property; and we do not think that we are liberty to fix another amount.
    “If the separate property of Griffiths was. sold to any amount, or if the sheriff was bound to sell it, the remedy of the creditor is against him, and not against the fund in court.
    “ But has the sheriff done the separate creditor any wrong by selling the entire partnership effects, under the joint executions, without first selling the separate interest of the individual partner, upon the prior execution against him ?
    “The joint executions, as the event proves, were sufficient to absorb the entire partnership stock. Then where was the interest of the individual partner, or what could the sheriff have sold or made on the separate execution? If he had sold, could he have delivered possession to the purchaser, or was he not bound to retain it in satisfaction of the joint executions still in his hands ?
    “We are not without authority on this point. In Pierce v. Jackson, 6 Mass. Rep. 243, it was decided, * that an attachment of the goods of the. partnership, by a creditor of one of the partners, is not valid against an after attachment of the same goods by a partnership creditor.’
    “The ease of Dunhams. Murdock, 2 Wend. 553, is precisely in point. There the court decided, that ‘ an action for a false return woiffd not be against a sheriff, for returning an execution ‘ nulla Iona,’ when the property of a firm was levied on by virtue of an execution against one of its members, and previous to a sale thereon, an execution against the firm came to the hands of the sheriff; under which the property levied on by virtue of the first execution was sold and exhausted.’
    “ This doctrine may be illustrated by the case of a mortgage, when the sheriff has in his hands a venditioni exponas, for the sale of real estate, bound by a mortgage, which is the first encumbrance. Afterwards, a levari facias upon the mortgage is placed in his hands. Is he bound to sell the equity of redemption on the venditioni exponas first, or may he sell the property out and out, upon the levari facias, and so that the proceeds may be distributed according to priority of lien? So in the sale of partnership pro-' perty, under joint execution. The sale of goods levied on as the property of a firm, should be of the entire partnership property; and the separate execution-creditor would be entitled to the surplus, if any were left, after payment of the partnership debts. This is precisely what has been done in this case; and we think the partnership creditors are entitled to the money, and as there is no surplus, the separate creditor can have nothing. The distribution of the auditors, in this particular, is therefore approved.”

      Dunlap, for appellant,
    cited 24 Wend. 389, 403; 2 Verm. 120; 10 Ib. 165; 2 Hill, 49; 4 Ib. 161; 5 Wh. 125; 2 McC. 478; 3 Ala. Rep. 319; 3 B. & P. 289; 3 Deo. 50; 5 Conn. Rep. 522; 2 Johns. C. Rep. 548; Colly on Part. § 822; 15 Mass. Rep. 82; Story on Part. § 358; 5 S. & R. 96; Doug. 650.

      Woods, contra,
    cited 2 Wend. 553; 5 W. 193; Pet. C. C. 460; 8 W. & S. 63; Baldw. 534; 6 Mass. Rep. 43; 9 Greenl. 28; Cowp. 445; 4 Ves. 396; 2 Ves. & B. 300; 3 B. & P. 288; 7 Barr, 165.

      Sept. 18.
   Per Curiam.

Let the judgment be affirmed, on the lucid and accurate opinion given by the President of the District Court.

Judgment affirmed.


author: Burnside, J.

text:
    Clarke v. McClelland.
    Trespass for mm. con. abates by tlie death of the defendant.
    In error from the District Court of Alleghany.
    The plaintiff brought trespass for debauching his wife. Pending the action'defendant died. The plaintiff then issued a scire facias to substitute his administrator as defendant. He pleaded the death of his intestate, and, on demurrer, the court gave judgment for the defendant.

      McQcmdless and Mahon, for plaintiff in error.

      Hampton and McMahon, contrA

      Sept. 11.
   Burnside, J.

The common-law rule is, that personal actions die with the party, the maxim being that “ actio personalis moritur cum persona4 Inst. 315. In some particulars this rule was changed by the 4th of Edward 3d, chap. 7. This statute and those changes extended to Pennsylvania. The statute allowed the representatives to be substituted, or to -bring an action where the injury was done to personal property.: 1 Chit. PI. 68. We are informed by Blackstone, that all actions merely personal, arising ex delicto for wrongs actually done or committed by the defendant, as trespass, battery, and slander, die with the party, and never shall be revived either by or against the executors or other representatives; for neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury: 3 Black. Com. 302. When the wrong-doer acquires no gain, though the other party has suffered loss, in these cases the death of either party destroys the right of action: 3 Mass. Rep. 321. This action is merely personal, and is a punishment: Heed v. Cist, 7 S. & R. 183-4.

But it is contended that the legislature have changed the law by the act of the 11th March, 1834, Dunlop, 515, relating to executors and administrators, and the 26th, 27th, and 28th sections of that statute are relied on for the change. The 26th section empowers administrators and executors of any person who at the time of his decease was a party, if the cause of action survives, to become a party. The 27th section changes the service of the writ of scire facias to compel substitution from sixty days, which was required by the act of 1791, 3 Smith, 30, to twenty days; and the 28th section authorizes executors and administrators to commence and prosecute all personal actions which the decedent, whom they, represent, might have commenced and prosecuted, excepf actions for slander, for. libels, and for ivrongs done to the person. This leaves the action of trespass for the criminal conversation with the wife of the plaintiff as it stood before the act of 1834 was passed. It being a wrong done to the person of the husband, it abated with the death of the defendant.

Judgment affirmed.


author: Bell, J.

text:
    Lapsley v. Lapsley.
    Devise among sons equally, they paying certain legacies, and if any of them die without issue, their share shall be divided between the surviving brothers: creates an estate tail in the sons, with a vested remainder in fee to those who survive, and the heirs of those who died before the son who died without issue.
    If a judgment against executors for a legacy charged on land be entered against the land of certain only of the devisees, the land of another devisee will not pass by sheriff’s sale.
    In error from the District Court of Allegheny.
    The material question in this ejectment arose under the will of Lapsley, whereby he devised certain land among his four sons equally, they paying a certain sum which he directed should be divided among his daughters. The will then continued, “ if any of my sons should die without issue, their part or portion shall be divided between thfe surviving brothers; also, if a daughter should die without issue, her part or portion shall be divided among her remaining sisters.”
    The plaintiff was the heir of Thomas, one of the testator’s sons, and claimed in that right a share of the estate of his uncle Samuel, another of the testator’s sons, who died without issue after the death of the plaintiff’s father, living two of the testator’s sons; and also a share in the same estate by virtue of a conveyance by a brother of Samuel, who survived him, and who it appeared was yet living.
    The defendant claimed title under a sheriff’s sale of Samuel Lapsley’s estate in the land; and also, under a judgment against the executors of the testator for the legacies charged upon the devisees, but which by the record appeared to have been apportioned among three of the shares devised, omitting that devised to Samuel. The court rejected this evidence.
    The court instructed the jury that the original devise was in fee, and was reduced to an estate tail, with a remainder in fee, by force of the devise over on the death of the devisees without issue: 5 W. 21; 2 Yeat. 400 ; 2 Pow. Dev. 425, 564, 573; Moore, 127 ; 4 W. & S. 422; and that by the word “ survivors” was meant the other devisees, as well those who survived, as the representatives of-those dying before the devisee: 2 Pow. 723; 8 Ves. 10; 14 Ib. 576.
    The ruling of the court, and the rejection of the evidence, were the errors assigned.
    Bolinson, for plaintiff in error,
    cited 2 Barr, 335; 3 Johns. 292; 2 Penn. Rep. 298.

      McClure and McOandless, contri.
    Pow. on Dev. 723; 8 Ves. 10; 14 Ib. 576; 6 W. 21; 9 Ib. 450; Cro. Jac. 590, 695; Cro. Eliz. 52; 2 Ves. 88; 2 Yeat. 400; 7 W. & S. 96.

      Sept. 18.
   Bell, J.

We are satisfied that the construction put upon the Avill in question by the court below, is the right one; and the reasons therefor are so satisfactorily stated in the opinion of the judge before whom the cause was tried, that, upon this point, nothing more is called for than to add.to the authorities collected by him, the cases of Eichelberger v. Barnitz, 9 W. 450, and Langley v. Heald, 7 W. & S. 96. The determination, in Jackson v. Blanshan, 3 Johns. Rep. 292, cited by the counsel of the plaintiff in error, upon the effect of the word “survivors,” in a will, seems to be at variance with the weight of authority, and is scarcely consonant with the rule which looks to the testator’s intention as the guide in construing testaments. It excludes from enjoyment of the subject devised, the children of those who die living any of the devisees subsequently dying without issue; a conclusion which, though perhaps justified by the usual meaning of the terms employed, is unsustained by the intention properly imputable to the devisor, who, in the absence of express direction or an equivalent implication, ought not to be suspected of a design to disinherit the issue of those who had fulfilled the principal condition annexed to the gift. To avoid such a result, the word “survivors,” in the connexion in which it is here found, has been construed to mean “others,” so as to let in the issue of the first takers. As illustrative of this rule, almost our very case is put by Powell as the result of the authorities. “If,” says he, “property be given to several persons, with a proviso that, in case of the death of any without leaving children at their death, their .shares shall go to the survivors, but in the case of the death of any leaiung children, then their shares to belong to such children; if one of the devisees die leaving issue, and then another die not leaving children, the share of the latter will go as well to the surviving objects as to the children of the deceased objects; and, by parity of reasoning, if all the legatees were then déad, leaving children, so that there were in fact no survivors, the children would take the whole 2 Pow. on Dev. 723.

The judgment recovered by Klinefelter and wife against Patterson’s Executors and others, was properly rejected as irrelevant. An inspection of the record of that case, shows that it was an action brought to recover .the legacy bequeathed to the testator’s daughter, as though it was charged on the land devised; and the judgment rendered on the verdict is de terris, against the shares devised to the sons, John, Thomas, and Robert; and afterwards allotted to them in severalty. Samuel’s interest, which had before been sold by the sheriff of the county, by virtue of an execution against him, was thought to be discharged of the lien of the legacy; and -this accounts for the special character of the judgment recovered by Klinefelter and wife. Now, although an error •may have been committed in treating the legacy as a charge on the land, we are not at liberty to give the judgment a more extended operation than is assigned to it by the terms in which it was rendered, dictated by the exigencies of the clumsy remedy then in use. for the recovery of legacies charged on land, and supposed to be sanctioned by McLanahan v. McLanahan, 1 Penn. Rep. 96. We cannot correct, collaterally, blunders committed in the conduct of the principal cause. The remedy of the legatees was, properly, a personal one against the devisees. But if it be conceded the legacy was charged on the subject of the devise, the land now in controversy was discharged of its proportion of the burden by the judicial sale under the judgment recovered against Samuel, the devisee, and was, therefore,'not liable to be again called on, in the hands of the purchaser. It results that the judgment and execution, offered in evidence, as showing an outstanding title adverse to that set up by the plaintiff below, were incompetent to work the effects attributed to them, and consequently properly excluded.

' It is scarcely necessary to say, that the judgment recovered by James Patterson against Samuel Lapsley, in 1819, and the sale under it of his interest in the land to John Lapsley, passed but the estate tail, which was defeated by Samuel’s death without issue; thus making way for the operation of the remainder limited over.

Judgment affirmed.


author: Coulter, J.

text:
    Dinsmore v. Biggert.
    Where a conveyance is made by deed to a trustee in fee for the separate use of a feme covert, or for such person as she should direct, and she make's no appointment, the trustee after the death of the feme is entitled to reoover the property for her representatives.
    And where the trustee by articles agreed to convey the trust-estate in consideration of certain sums to be paid for the maintenance of his cestui que trust, and he subsequently conveys the property and takes a mortgage to secure a bond given for the purchase-money: the articles are merged in the conveyance and mortgage, and the trustee is entitled to recover the unpaid balance due at the death of his cestui que trust.

    In error from the District Court of Allegheny.
    This was an ejectment to enforce payment of a balance due upon a mortgage, in which the point was reserved whether the estate of the plaintiff had expired by its own limitation. The facts were these:—
    In 1827, Hewit, and Margaret his wife, made an absolute conveyance of lands to Stokes, in fee, in consideration of $2,400. On the same day the parties to this conveyance sealed another deed, in which the sale of the land was recited, and also an agreement between Hewit and his wife for the division of their personal property ; and that Stokes had agreed to pay to Hewit $400 of the consideration-money mentioned in the deed, for his own use, as a consideration for the sale of the land; and that Stokes would pay to Margaret, or to trustees to be appointed, $2,000 of the said consideration, to the sole and separate use of Margaret. Hewit further agreed never to demand this money from the trustee, his wife, or her appointee; and Stokes covenanted to keep-Hewit harmless from all expenses of the maintenance of Margaret during her natural life. These instruments were recorded. A few months afterwards, Stokes by deed — reciting this conveyance, and that the lands had descended to Margaret Hewit, and that the true intent of the conveyance to him was to make a competent provision for Margaret, independent of her husband, out of the real estate, and that certain advances had been made and expenses incurred — conveyed the estate to Brawdy in fee, in trust to apply the rents and profits to her sole and separate use, or to such person as she or her trustee should appoint; and to make sale of the lands as soon as convenient, and apply the proceeds to repay the advances and expenses, and the balance to the use of the said Margaret, or to her, or as she or her trustee, to be named by her, should direct, and to indemnify Stokes from his indemnity in the deed from Hewit and wife.
    In 1828, Brawdy entered into articles for the conveyance of the land to Patterson, for which he agreed to make certain payments, and to convey a certain portion of it to the use of Margaret Hewit, and to pay certain sums annually, with interest, from a day certain, for the maintenance of 'the said Margaret, which annual payments were to be secured by mortgage. And it was further agreed, that if she survived the period for the payment of the last of the instalments, and should require any money for her support, that Patterson should pay a reasonable sum for that purpose during her life, and the amount thus advanced was to remain a lien on the estate of said Margaret.
    To this agreement Margaret assented, and a conveyance was made.
    A mortgage was then executed by Patterson to Brawdy, reciting the conveyances to him, and the bonds given by Patterson to Brawdy; the one to indemnify Brawdy from all claims under the articles between Hewit and wife, and .the other conditioned for the payment of $1,691, with interest from 1829, to Brawdy, as trustee for Margaret Hewit, in annual payments of $100, commencing in 1831, and was conditioned to secure the performance of these obligations.
    Brawdy resigned as trustee, and assigned the mortgage to Dins-more, who was appointed trustee for Mrs. Hewit.
    Mrs. Hewit died, her husband being still alive. The ejectment was brought on the mortgage to compel payment of the unpaid, balance due on the bonds.
    Lowrie, P. J., directed a verdict for plaintiff, reserving the question of the plaintiff’s title; and in giving judgment, after stating the title, said:—
    “ Under this state of facts it is contended that the title of the plaintiff, as trustee, is ended:
    “1. Because the estate granted to said Brawdy, though in terms a fee simple, is necessarily limited to the life of Margaret Hewit, it being in trust for her separate use during her natural life.

      “2. Because, according to the articles of agreement between Brawdy and Patterson, the consideration-money was to be applied to the maintenance of the said Margaret, and to no other purpose whatever; and the said Patterson was bound for her maintenance, after all the instalments should be paid, should she survive that time; therefore he was bound for no instalments falling due after her death in 1838.

      “ But the question whether the legal estate granted to Brawdy is to be limited, according to the trust created, to the lifetime of Mrs. Ilewit, notwithstanding the express words of inheritance, does not arise here; and if it did arise, we should have to decide it against the defendants, on the ground that they will not be allowed to raise that question, and that this estate is created by deed and not by will: Hill on Trustees, 239, 248. Besides this, this action does not at all depend upon the trust-deed to Brawdy, but upon the mortgage, which clearly vests the legal estate in the said Brawdy, so far as is necessary to maintain this action.
    ‘ ‘ As to the other question, I am not able to take any other view of it than that the articles of agreement are merged in the mortgage and deed, and that in opposition to the construction of the articles now relied on, the parties have shown that the money was to be paid absolutely, and did ngt at all depend upon the life of Mrs. Hewit. The plaintiff, as trustee, must account to the legal representative of Mrs. Hewit.”
    Judgment was entered for plaintiff on the verdict.

      Burk and Woods, for plaintiff in error,
    cited 1 Dall. 72; 1 Binn. 175; Adams on Eject. 89 ; 12 Ves. 89.

      8haler, contó,
    cited Hill on Trustees, 242-248; 3 Yeat. 570; 16 S. & R. 433 ; 3 Penn. Rep. 436.

      Sept. 25.
   Coulter, J.

The opinion of the learned court which rendered judgment, sufficiently indicates the grounds upon which this court affirms that judgment.

Judgment is therefore affirmed for the reasons given by the court below.

Judgment affirmed.


author: Per, Curiam.

text:
    Grimes v. Percival.
    A notice to a justice of the peace not signed by the party is insufficient, though delivered by the party in person, who was known to the justice.
    In error from the District Court of Allegheny.
    Debt against a justice for the penalty under the marriage act. The plaintiff proved a delivery by himself of a notice of his intention to bring the action to the justice; and it appeared that the justice knew the plaintiff, and after receiving the paper, they had a conversation on the subject of the action.
    The court rejected the notice as evidence because it was not signed by the party, and its sufficiency was the question.

      Wylie for plaintiff in error,
    cited 2 S. & R. 440; 5 W. 370; 3 Ib. 445; 2 W. & S. 100; Greenl. Ev. § 96-7.

      Hampton, contra.
    3 S. & R. 296; 7 W. & S. 262; 1 Barr, 403.

      Sept. 18.
   Per, Curiam.

When a plaintiff in person gives notice of action to a justice of the peace, he must not endorse the name of his attorney on it; but why should he not sign it with his name? Though not requiring the form, such a notice ought to have the substance of a declaration; and it ought to be complete in itself without borrowing certainty from matter dehors. Thus a notice signed by the plaintiff, and endorsed, Henry Reed, Esq., living in Poplar Lane,” was held to be an insufficient indication that he was the plaintiff’s attorney; yet no one would doubt that his name was endorsed to satisfy the statute, which requires the name of the attorney to be endorsed. So dating a notice at a particular place, has been held an insufficient averment that the party resided there, though legal acts are almost invariably dated at the place of the party’s residence. Here an unsigned notice was handed to the justice by the plaintiff in person; but what if it had been sent by a messenger ? The justice might have exacted the necessary information from him in respect to the identity of the writer ; and so he might have done, in respect to the information wanted in the cases taken from our own decisions. But there cannot be one rule for a notice served by the plaintiff, and another for a notice served by his agent. To avoid the uncertainty that would be incurred by departing from a plain and practical rule, it is necessary to say that the notice must contain the elements of the information required within itself. The want of the plaintiff’s name as an act of authentication, therefore, is a defect that cannot be remedied.

Judgment affirmed.


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    WINEBIDDLE v. PORTERFIELD.
    In an action for malicious prosecution and false imprisonment, evidence of the had character of the plaintiff since the complaint made is inadmissable.
    The mere belief of the prosecutor is no defence: he must have had probable cause for his belief.
    In error from the District Court of Allegheny.
    Case for malicious prosecution and false imprisonment. The facts, so far as material, are fully stated in the opinion of this court.

      Sept. 25.
   Coulter, J.

The answer of the court to the first point is free from fault, so far as the plaintiff in error has any right to complain. There is a sweeping generality in it, to which the court did not perhaps advert when they affirmed it, adding only the qualification that the jury might presume malice from the want of probable cause. The books are dotted all over with eases to that effect. It is not necessary to cite them. But the rule on this subject is so clearly and succinctly stated by Justice Parke, in the case of Mitchel v. Jenkin, 5 B. & Ad. 594, that I transcribe it. “ The plaintiff must prove what is averred in the declaration, to wit: that the prosecution or arrest was malicious and without reasonable or probable cause. If there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable. But when there is no reasonable or probable cause, it is for the jury to infer malice from the facts proved: that is always a question for their consideration.”

The court are next requested to charge the jury that certain language used by the plaintiff amounted to probable cause. The court reply that there is no evidence to justify the point, but instruct the jury that if such language was used without provocation, that it would be so; but in the words of the court, “if it. was returning abuse for abuse, then it would not.” We cannot say the court erred, and send the cause back to be tried on facts which perhaps do not exist. There is no evidence on the paper-book; we are not called on to decide upon abstractions. The counsel complains that the court did not instruct the jury what constituted probable cause. But that is not what he asked them to do — but whether particular facts amounted to it. If the court had instructed the jury that probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged (3 Wash. C. C. R. 31), it would not have afforded much aid to the plaintiff in error. A mere scolding-match between two persons, probably dissenting about their rights in the coal-pit, or a scojding-match on the streets, scarcely affords probable cause for invoking the criminal law of the country by a prudent, cautious man. If it did so, we would fill our courts to repletion.

The court are next requested to charge the jury that the sentence of the Court of Quarter Sessions discharging Porterfield, and ordering the prosecutor to pay the costs, was neither evidence of malice nor probable cause; to which the court reply: true, but it is evidence. And evidence it undoubtedly is — the very foundation of the action — showing the existence of the prosecution, that the defendant was acquitted, and that the prosecution was at an end — ■ all essential requisites in this action. The evidence is always given, and the books declare it indispensable.

I do not intimate an opinion that it was evidence of nothing more, because in my judgment it was sufficient to throw the burthen of proof of probable cause on the defendant below.

The court affirm the sixth proposition as they understand it, and add a remark to show how they did understand it, which seems to accord well enough with the apparent meaning of the plaintiff in error. We cannot say the court misunderstood the point. There is a new man introduced, Leverhart, and his rights in the coal-pit, and the remedy which Winebiddle might have against him, all which, I presume, would have been explained by .the evidence which we have not.

The answer of the court to the .seventh point was right undoubtedly. The mere belief of the prosecutor is no evidence of probable cause. How are. you to test the sincerity of a professed belief, or know that it is not the secret work of a heart to cover malice ? There must be some circumstances which would authorize a reasonable man to entertain a belief. It need not be legal evidence that would be sufficient to convict; and hence it is not to be .put to the jury as a question of guilt or innocence, but as a question whether the prosecutor had reasonable and probable cause to believe the defendant guilty. And if it can fairly be inferred from the circumstances of the case that the prosecutor was actuated by an honest and fair intent to bring a suspected culprit to justice, on grounds sufficient to authorize the belief of a cautious man, it will remove all grounds for a just inference of malice, and thus protect the defendant; but his mere professed belief will not.

This case is presented in a very bald and skeleton-like condition. There is no error in the record that we can perceive.

Judgment affirmed.


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    Maxwell v. Beltzhover.
    Where there is a plea in confession and avoidance, the plaintiff cannot be compelled to try under a rule of court, which dispenses with a replication where a substantial issue is raised by the pleadings.
    In error from the Common Pleas of Allegheny.
    To a scire facias sur judgment against defendant as garnishee, he pleaded in confession and avoidance. The court nonsuited the plaintiff when the cause was called, though there was no replication. It is believed there is a rule of that court which dispenses with replications where a substantial issue is raised by the pleadings.

      Alden, for plaintiff in error.

      Sept. 12.
   Coulter, J.

The declaration was filed on the 17th day of July, 1847, and a special plea entered by the garnishee on the 19th of same month and year. The plea admits the execution and delivery' of the note on which the plaintiff declares, as the foundation of the liability of the garnishee, but seeks to avoid and defeat its recovery by an allegation of new and distinct matter. To this the plaintiff might have demurred, if he thought the matter insufficient ; or he might have replied, denying the facts and concluding to the country. But he did neither; and there was in fact neither an issue in form nor substance. There was no issue. The course of the defendant was to compel an issue by talcing a rule on the plaintiff to reply. It was clear error in the court to nonsuit the plaintiff, for not proceeding to trial. Neither the words nor the spirit of the rule of court authorize it.

Judgment reversed, and a venire de novo awarded.


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    Peppard v. Deal.
    Devise — as to all my -worldly estate, &e., a house to A., and the remainder of my estate real and personal to my children, passed a fee prior to the act of 1833.
    Tenant in fee, by devise from her father, and by descent from her brother and sister, devisees of her father, devised “my part coming from the estate of my father” — a fee passes in all the property which she acquired mediately or immediately from her father.
    Tenant for life in part, and in fee, as to the residue, made an amicable partition by agreement with her co-tenants, by which a lot and a sum of money for owelty were awarded to her, and the other lots to her co-tenants. She entered and devised the land. The statute of limitations began to run from her entry.
    In error from the District Court of Allegheny.
    The plaintiff in this ejectment was one of three heirs of William Deal, the elder. By his will, proved in 1800, he devised: — “As to my worldly estate, I devise the house in which I now live to my son Samuel, and the remainder of my estate, real and personal, among my children, including Samuel,” reserving a life-estate in one-third to his widow. The testator left six children. Two of them died intestate and without issue, in 1809 and 1811; Catharine, another of his children, died without issue, in 1814, having devised to her mother, Mary Deal, “ my part coming from the estate of my father.”
    In 1820, Mary Deal and the three children of William Deal entered into an amicable partition by arbitration of the estate of William Deal and his three deceased children. The lot in question was awarded to Mary Deal, together with a sum of money as owelty, to bo paid by one of tho parties, who was also to pay owelty to tho plaintiff’s ancestor. ,
    In 1829, Mary Deal devised the lot in question to William Deal, under whom the defendant claimed. She had occupied the premises since the partition, and her devisee had made valuable improvements.
    The action was brought in 1846, and the plaintiff claimed one-third of the property, on the ground that Catharine took but a life-estate under her father’s will, and that she devised but a life-estate.
    The court gave judgment for defendant.

      Selden, for plaintiff in error.

      Sawyer and Auston, contra.

      Sept. 20.
   Coulter, J.

At the time Catharine Deal made her last will, her brother Samuel was dead, intestate and without issue, and also her sister Betsy was dead, under like circumstances; if, therefore, the children of William Deal the elder took an estate in fee under his will, the parts or shares of these two descended to their surviving brothers and sisters, each of the brothers and sisters having their parts severally increased by their part of the shares of each intestate which fell into their own portion or share. In case of partition there would be no division into the original number of shares, and then a separate partition of the share allotted to the dead brother and sister, but as every one of the survivors held as tenants in common in equal parts, the whole estate subject to the life-estate in the mother, both as to Samuel and Betsy’s interest, and the one-third of the profits of the whole bequeathed to her during life by her husband, they would of course take by partition equal parts; and this sufficiently explains the phraseology used by Catharine Deal, who died after Samuel and Betsy, and before partition. In her last will she devises to her mother “her part coming to her from her father’s estate.” And this language gives occasion to the assignment of two of the errors: first, that the court erred in instructing the jury that the devise by Catharine included that part which she inherited from her brother and sister; and second, that the mother took an estate in fee simple under Catharine’s will. The last error assigned is that Catharine did not take in fee simple under the will of her father, and it will be most convenient to answer this first. [His honour here stated the will of William Deal.] It is clear that the testator had in his mind the distinction between an estate for life and an estate in fee, because he limits the interest of his wife in the profits to the duration of her life. But it is clear that the words in the will passed an estate in fee to the surviving children of the testator. The language in tlie introduction is carried down to the devising clause to explain its intent, if indeed it needed any explanation, for by its very words a clear intent to pass the whole interest of the testator is manifest; and that was all that was necessary in this state at any time, and there is no decision in favour of the heir going beyond that. By our statute on the subject, the reasonable rule is prescribed, to wit: that all devises of real estate shall pass the whole of the estate of the testator, although there be no words of inheritance and perpetuity, unless by a devise over or words of limitation it appears that the testator intended to give a less estate.” But these wills were made before the passage of the act, and before the ancient dialectics of the gown and the wig had entirely yielded to the dominion of common sense, and they must be interpreted according to the then existing law.

The cases of Morrison v. Semple, 6 Binn. 97, in which a devise of all a man’s property was held to j>ass a fee, on the ground that they manifested an intention to devise the whole of the testator’s interest, and Busby v. Busby, 1 Dall. 226, in which the court carried down the introductory words to explain a devise and show the intept of the testator, fully show that when the intent of the testator was apparent, it was sufficient to pass a fee. In Cassel v. Cooke, 8 S. & R. 289, it is, if not actually ruled, most strongly asserted by Justice Duncan, that “ worldly estate in the beginning of a will, though not of themselves sufficient to pass a fee, are always carried down to the devising clause to show the intention.” To the same point I refer to 5 Metc. 134, 18 Pick. 537, and 17 Wend. 393. Catharine therefore took a foe by the will of her father. And we are of opinion with the court below, that she passed a fee to her mother by her will, because she gives all her interest in the estate of her father. She gives a small pecuniary legacy to each of her brothers a.nd sisters, and thereby shows that she had in her mind’s eye all those who were likely to be participants of her bounty, and devises to her mother all the part coming to her from the estate of her father. Now what part was coming to her from the estate of which her father died seised ? certainly not only that specifically devised to her, but also that by which it had been increased, owing to the falling in of her share of her brother’s and sister’s part. Her portion of tlie part devised to Betsy and Samuel, was as much and as truly coining to her out of her father’s estate, as that specifically devised to her. But it is clear that Catharine intended to dispose of her whole estate, and that after tlie small legacies given to her brothers and sisters, all the rest of her worldly interest should go to, and be enjoyed by her beloved mother, as she denominates her; and that this embraced as well the quantum of land, embracing all that she was entitled to out of the estate of which her father died seised, as the quantum of -interest or estate, and that was a fee. All the severity of the English lawyers with regard to devises, and their devotion to names, words, and classifications, in order to preserve the estate of the heir, would seem to be out of place in this country; where the will of the testator, no matter to whom it conveys the estate, when it can be collected from the instrument, is the pole-star of decision.

There was, however, a portion of the estate in which the mother was only entitled to a life-estate, to wit: that which fell to her by the death of Samuel and Betsy, intestate. But for some reason the mother and surviving brothers and sisters were under the impression that each was entitled to an equal share of the whole estate, and they agreed to make amicable partition, and referred the matter to three arbitrators, with ample powers to do justice between them. To this agreement the ancestor of the plaintiff, as well as the widow, under whom defendant claims, were parties. The partition was made, and parts assigned to each, and owelty of partition amounting to $411 was to be paid to John, the ancestor of the plaintiffs, and also the same amount awarded to the widow of William and devisee of Catharine. They severally entered into possession of their respective parts, each claiming in severalty and absolutely in their own right. It is true that the mere act of partition could not enlarge the estate of any one, as we have recently held in two- cases. But here was a new element, the payment of owelty, which might enlarge the estate according to circumstances, by constituting a new contract and new and valuable consideration. But this part of the case is ruled on another •ground. The mother of Catharine entered into possession, claiming as her own, in 1822. In 1830, she devised the premises to the defendant, or those under whom he claims, and valuable improvements have been made; the statute of limitations began to run during the life of John, the ancestor of plaintiffs, and suit was not brought until 1846. The statute is a bar to the plaintiffs. It commenced, running while John was in full life without disability, and it continued to run.

The defendant, and those under whom he claims, have been in adverse, uninterrupted possession for more than twenty-one years.

Judgment affirmed.


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      Woods v. Halsey.
    Where a venditioni exponas is lost, and there is proof from the docket entries and aliunde that several lots, as numbered on a plan, -were sold under it, the deed maybe used as evidence to identify the lots sold to particular individuals.
    It is immaterial that the wrong ycai* is endorsed on a petition that a sheriff may acknowledge a deed made by his predecessor, where entries on the docket and the recitals in the deed correspond and are regular.
    It is immaterial that there is no description of the property sold in such petition, except the name of the former owner*.
    In error from the District Court of Allegheny.
    The defendants held, under a sheriff’s deed, several lots in the Reserve Tract, near Pittsburgh, designated by numbers. The writs of venditioni exponas were lost, and the court permitted the de*: fendants to prove, by the then deputy-sheriff and the dockets of the court, a sale by the sheriff. And they -also permitted them to identify the tracts by the deed. The defendants then offered the sheriff’s deed, acknowledged by the successor of the sheriff who had made the sale. They also showed a petition, stating that “ a sale of the property of John Woods, of, &c., was made, &c.” This was endorsed either in 1824 or 1834, either of which was incorrect; but the records showed that the order was made in 1826, when the deed was acknowledged, reciting the order as made in 1826.
    The court said these irregularities did not vitiate the sale.
    Woods, for plaintiff in error.

      Williams and Kuhn, contrü.

      Sept. 25.
   Burnside, J.

The lots in question were part of the reserve tract patented to John Woods, who died in September, 1819. The plaintiffs were his children and heirs.

The defendants, who had been several years in possession, admitted that the title had been in John Woods, but claimed the premises under judicial sale, on a judgment against John Woods, in Ms lifetime, and another against his executors. They gave in evidence the judgment of James Arnold against John Woods, of the 9th of October, 1809, for $141.93; a fieri facias to November Term, 1809, returned stayed; an alias in 1819, also returned stayed; and apluries, No. 164, to August Term, 1824, which was levied on the right, title, &c., of John Woods, deceased, on twelve lots in the hands of his executors, in the reserved tract near Pittsburgh, numbers 201, 202, 203, 204, 205, 20T, 208, 214, 215, and 266, containing together 101 acres 14 perches, a log cabin on 203, a square log barn, &c., and on the whole tract 50 acres cleared. Inquisition held and condemned; and proved that the venditioni exponas was lost and could not be found. They then gave in evidence the judgment of John Erwin against John Woods and James Woods, executors of John Woods, deceased, No. 28, of January Term, 1824, in which the executor confessed judgment de bonis for §193.56 debt; the 12th November, 1823, fieri facias, No. 168, August Term, 1824, which was returned levied on all the right, &c., of John Woods, deceased, in the hands of his executors, of, in, and to twelve out-lots in the reserved tract opposite Pittsburgh, No. 200 to 208, both inclusive, and 214, 215, and 216, same as above. Inquisition held and condemned. Then produced the docket No. 80, January Term, 1825, venditioni exponas, sheriff’s return, sold as per endorsement on this writ; costs paid by Mr. Ross, as per his receipt, and proved that Sheriff Stewart was in office in 1825 (then deceased), and produced his docket. The loss of the writs proved, and then proposed to prove by Jones, the deputy, the sale, and to whom sold, and offered to read the sheriff’s docket and his entries of the writ, and to follow this by the sheriff’s deed, duly acknowledged to the purchaser.

This forms the first bill of exceptions. If such evidence was not admissible, purchasers at sheriff’s sales would not be secure in their titles. I have never known a county in Pennsylvania (and I have held courts in more than twenty) but many executions are not to be found in the office. In some, more are lost than in others. Besides, it is settled that docket entries are admissible in evidence when the writs are lost: Harvey v. Thomas, 10 Watts, 63. It was in evidence the sheriff was dead. His docket being proved, it was proper to permit it to be read to the jury. The loss of records is proved as other facts are: 2 Wash. C. C. Rep. 1. The court committed no error in receiving the evidence. After the evidence offered was given, that the property in question was sold to Burke and Eetterman, their petition to the court, setting forth that at a sale of the property of John Woods, of Ross township, deceased, by Lazarus Stewart, then sheriff of Allegheny county, they became purchasers, and no deed had been acknowledged, and praying that William Lecky, then sheriff, should make and acknowledge a deed to them. This petition was endorsed of November Term, 1825. It was further endorsed in the handwriting of Mr. Eetterman, who was an attorney of the court: “ May 15; year not intelligible; the paper-book says 1824; but in the original (which was before us) the" figures may be read as you desire' them. The defendant’s counsel, to show that it was in 1826, offered in evidence the minutes of the court, showing they were not in session in May, 1824. The minutes of the court and sheriff’s deed to Fetterman and Burke, were then offered in evidence and admitted; and this forms the second bill of exceptions and assignment of error.

The objections are, that the petition does not state the property sold with sufficient certainty, and that there is a discrepancy in the date of that sale. We think the law has been substantially complied with. The deed is full and particular, reciting everything that the law requires. Sheriff Stewart, who made the sale, signed the receipt for the purchase-money, and Sheriff Lecky, his successor, executed and acknowledged the deed in open court. In counties where there are correct and careful officers, petitions of this kind, for leave to execute deeds, are carefully copied and entered in the continuance docket, with the decree of the court thereon at the end of the proper term. Where the petition has been presented, reciting the sale, money paid, decree of the court and deed made and duly acknowledged, it will not do to listen to such objections as are made in this ease. The third and fourth bills of exceptions are already considered. The fifth is to the evidence of Sheriff Lecky and William Carson. The former proved that Burke and Fetterman were in possession when he acknowledged the deed, and that they had sold to Davis. Before that period Davis was in possession, who continued there ever since, claiming under this sale from Burke and Fetterman, clearing, fencing, and improving, and that several of the sons of John Woods were in the neighbourhood. The latter gave evidence that he had always lived in the neighbourhood of the property, and that Davis told James Woods that he would give the property back when he was paid the purchase-money. We are unable to discover any error in the admission of this evidence.

The sixth and last error was to the court charging the jury, that the judgment of John Erwin v. Woods’s executors was valid, and the execution under it regular. That the sheriff’s sale to Fetter-man and Burke was sufficiently established, and the irregularities in the endorsements, and dates on the petition to the court for leave for Lecky, the then sheriff, to execute a deed to the purchasers, and the want of conformity in the docket entries, did not invalidate the sale, or the deed made under it, but the sheriff’s deed was good and valid, and passed the title of John Woods, deceased, to the purchasers.

Under the evidence, I think there is no error in this instruction. It is necessary for a judge, and it is his duty, in cases like the present, to be decided in his instructions. The frequent changes of the clerks of our courts, as well under the constitution of 1190 as under the reformed constitution, as it is called, often bring careless and incompetent men into office. Let it be established that slight irregularities, which ought to be objected to, if at all, at the acknowledgment of the sheriff’s deed, will vitiate a sale, but few sheriffs’ sales will stand such a test. If the loss of writs would destroy a sale, no man of prudence would bid at a sheriff’s sale. The law is not so. I think the direction of the court to the jury in this-ease was strictly proper.

Judgment affirmed.


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    Giles v. Ackles.
    A promise to pay the debt of another, if plaintiff would stay an execution, is binding, if the plaintiff does not proceed with his execution.until after the day agreed on.
    In error from the District Court of Allegheny.
    The plaintiff was an execution-creditor of Brown. Giles called on the plaintiff, and agreed if he would stay the writ, he would pay the debt in six weeks. The plaintiff consented, and did not proceed with his execution until requested by Giles.
    Lowrie, J., told the jury it was immaterial that the writ was not stayed on the record; there was a contract to wait, and the plaintiff did wait.

      Woods, for plaintiff in error. ■

      Gr. P. Hamilton, contrd.

      Sept. 16.
   Burnside, J.

The weight of authority is against the plaintiff in error; it being well settled, that an agreement to forbear to sue for a considerable time, is a consideration certain enough upon which to sustain an action: 1 Penn. Rep. 383. In New York it was held, that the adjournment of a suit is a sufficient consideration for a promise: Stewart v. McGuin, 1 Cow. 90. This case is not unlike that of Pullin v. Stokes, 2 H. Bl. 312. There, A. having obtained judgment against B., and a fieri facias being delivered to the sheriff, in Qonsideration that A., at the special instance and request of C., had requested the sheriff not to execute the writ, C.„promised to pay A. the debt and costs, together with the sheriff’s poundage, bailiff’s fees, and other charges, on a judgment by default and error brought, the promise was holden to be binding on C., though it was not averred that the sheriff did in fact desist from the execution of the writ. Here the execution was in the hands of the sheriff against Brown, who was down the river with coal. Giles promised to pay the debt if the plaintiff’s attorney would stay the writ for six weeks. The plaintiff’s attorney agreed to this. Nothing was done on the execution until Giles requested the attorney to proceed with the execution against Brown. If the jury believed the evidence, the plaintiff in error had no ground to stand on. Indeed, the consideration of forbearance generally has been held sufficient, without setting forth a specific time: 4 Johns. Rep. 239; see Cro. James, 683.

Judgment affirmed.


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    Forsythe v. Walker.
    If a forwarding merchant erroneously insert the name of a consignee in the hill of lading which was not marked on the goods, and, in consequence thereof, the goods are seized and sold by the sheriff as the property of the person whose name is thus inserted: the merchant is liable to the real owner.
    Where the consignor marks the goods with the initials only of the consignee, he is guilty of no negligence which will protect the carrier from a loss by his entering them on the bill of lading in the name of a stranger, whereby the goods are lost.
    In error from the District Court of Allegheny.
    This was an action against forwarding merchants, for the loss of goods. The plaintiffs, merchants in Baltimore, consigned certain goods to Galena, Illinois, marked “ J. C. L., St. Louis,” and “J. F., Galena.” They had a partner, J. C. Louderman, at St. Louis, and an agent, J. Frysinger, at Galena, for whom the goods were intended.
    The defendants were forwarding merchants, and received the goods at Pittsburgh, and there entered them on a hill of lading, “J. F., Galena; J. Flanagan, Galena, Ill.” The goods were shipped to a forwarding house at St. Louis, according to the course of trade, and there seized and sold by the sheriff, under an execution against J. Flanagan.
    Hepburn, P. J., told the jury it was a fact for them, whether the loss of the goods was occasioned by the insertion of the name of J. Flanagan in the bill of lading. If so, the plaintiffs must recover. And though no assertion was made by them which would justify the act of the sheriff, they were still liable, if the loss was occasioned by any act or omission of theirs contrary to their duty. There was also an answer to a point, which is stated in the opinion of this court.

      Staunton and Loomis, for plaintiffs in error,
    cited 9 Wend. 268 ; 2 Greenl. Ev. § 220; 6 W. & S. 258; 6 Whart. 321; 6 W. & S. 58; Story’s Bailm. § 199.

      S. W. Williams, for defendant in error,
    cited Story on Ag. § 217, 219; 6 Ves. 496 ; 6 Bing. 716; 3 Hill, 545; 19 Eng. C. L. Rep. 214; 7 Cowen, 97; 22 Eng. c. L. Rep. 334; 41 Ib. 422.

      Sept. 25.
   Rogers, J.

Warehousemen and forwarding merchants are responsible only for want of good faith and reasonable and ordinary diligence; but one of the first duties of a consignee for transmission, is to obey the instructions of the consignor, either express or fairly implied. When they undertake to vary from the instructions, proceeding from whatever motive it may, and a loss is occasioned thereby, they are clearly liable to the owner of the goods. In this predicament the defendants have placed themselves; had they attended to this plain rule of common sense and common law, we have no reason to believe that any loss, much less in the manner it has happened here, would have ‘occurred. The consignor and owner, for some reason not disclosed, and which he is not bound to explain, chose to send the goods without particular instructions, directed to “ J. F., Galena;” the defendants, instead of forwarding them in the manner directed, without the shadow of authority, inserted the name of J. Flanagan, to whom they did not belong, and who had no pretence of right to them. On their arrival at St. Louis, to which place they were directed by the defendants, they were seized and sold by the sheriff as the property of Flanagan, and the proceeds applied to the payment of his debts. The insertion of the name of Flanagan, was, as must be conceded, a wholly unnecessary and unauthorized act, and, as the jury were warranted in believing, led to the seizure and sale of the goods as his property. The seizure and sale was the immediate cause of the loss, and necessarily connected with the assertion on the part of Forsythe & Co., that they belonged to Flanagan. There is, it is true, no direct proof of the manner in which the sheriff became acquainted with the apparent ownership , of Flanagan; but the most natural supposition is, that he was led to this belief because they appeared to be his property on the face of the consignment by Forsythe & Co. to Agnew & Buchanan, to whom they were forwarded on their transit to the owner at Galena. It would be a matter of course for the latter to inform Flanagan, who it is probable was then at St. Louis, of the arrival of goods of which he appeared to be the owner. The inference is a legitimate one. that the act of Forsythe & Co. was the immediate cause of the seizure, and that the property would not have been in a situation to sustain the loss, had it not been for the insertion of Flanagan’s name by the defendants, an assertion of ownership' in him of which it appears he was so unprincipled as to avail himself. Had the goods been delivered to Flanagan for the reason they were marked in his name, it cannot be doubted the defendants would have been liable, nor can I perceive any difference that the loss arose immediately from the seizure and sale of the sheriff; for although the sheriff would be answerable to the owner, yet the latter has also a remedy against the defendants. We see, therefore, nothing in the exception, that there was no evidence that the loss of the goods was caused by the unwarrantable and unauthorized act of the defendants. There wa,s evidence more than enough to justify the jury in coming to that conclusion. Indeed, it would be difficult to understand how they could have drawn any other inference from the facts.

The defendants requested the court to instruct the jury, that if the loss was occasioned partly by the negligence of the plaintiff, and partly by that of the defendants, the plaintiffs cannot maintain this action. To this the court reply, that the plaintiffs must have a good and entire cause of action against the defendants, or they cannot recover, and if the loss is attributed to their own neglect, they cannot recover. This point affirmed.” It is strenuously contended, that although there is an affirmative answer to the proposition, yet it is not sufficiently precise and distinct — that they are entitled to such an answer as could not be misapprehended or misunderstood by the jury. Were this a case for the application of the rule laid down in Noble v. McClintock, 6 W. & S. 62, I should be inclined to favour the exception. But here the inquiry is material, Have the defendants been injured by the charge ? The point is predicated on the supposition that the injury of which the plaintiffs complain, was caused, at least in part, by themselves. But of this what evidence was there which would warrant the jury in believing that the sheriff was induced to seize the goods because the consignor marked them with the initials of the name of J. Flanagan to whom they were consigned ? Certainly there was none; no person can doubt the right of the consignor to mark the goods with the initials of the name of the owner, if he chooses to run the risk. That is a matter between the consignor and the owner, with which the consignee for transmission has nothing whatever to do. The parties may have very good reasons for adopting this mode, and I am yet to learn what right others who are employed for a special purpose, have to interfere with their arrangements. Goods similarly marked had gone safely before, and in all probability would have gone safely again; but whether they would or not, was not of the slightest consequence to tlm defendants. The duty of Forsythe & Co. was to obey their instructions to forward the goods as directed. Although the alteration was doubtless intended as a favour to the owners, yet that is no excuse, as a little reflection ought to have taught them, either to forward the goods as directed, or to have called for and awaited further instructions. It seems to me the defendants have no reason to complain, for the charge is as favourable as they had any right to expect. In the general charge, the court left it to the jury to decide whether the loss of the goods was occasioned by the defective marking of the boxes and the absence of the usual instructions from the plaintiff, and not from the neglect or misunderstanding of the defendants.

Judgment affirmed.