text:
    Alcorn versus The Commonwealth.
    1. A constable in Venango gave bond with surety for the collection of taxes, being in default he moved into another county, the surety afterwards gave notice to the treasurer to sue the constable or he would be held no longer, no suit was brought. Reid, that the surety was still liable.
    2. Whether the surety for a public officer is discharged in any case by neglect to bring suit after notice, not decided.
    3. By Act of April 3d 1851, constables in Venango are to collect taxes and give bond for the discharge of their duties under the act and for the payment of the taxes in four months, &c. Reid, that the limitation in the 4th section of Act of March 29th 1824 (Constables’ Sureties) does not apply to the sureties in these bonds.
    4. These bonds are under the provisions of the Act of April 4th 1798, limiting suits to seven years from the cause of action.
    5. Where a county treasurer in settling with a constable charged him with too little and the county auditors settled with the treasurer on the same basis, this cannot avail the constable in a suit to recover the amount actually due by him.
    October 19th 1870.
    Thompson, O. J., Read, Agnew, Shaeswood and Williams, JJ.
    Error to the Court of Common Pleas of Venango county: No. 177, to October and November Term 1870.
    ■This Avas an action of debt by the CommonAvealth against B. O. Coolidge and Samuel Alcorn, issued October 8th 1868. Coolidge was not summoned.
    The suit was on the official bond of Coolidge, who was constable of Cherry Tree township, Venango county, Alcorn being his surety, and the constable being a defaulter. The bond was dated August 31st 1865, in the sum of $1000, and was given under the Act of April 3d 1851, Pamph. L. 317, relating to taxes in Venango county.
    The act provides that when any state or county tax in that county is unpaid for thirty days, the treasurer shall “ issue his warrant under his hand, accompanied by a schedule of all unpaid taxes, and the names of the persons to whom the same are respectively charged in the proper duplicate, directed to the proper constable of the proper township or borough, whose duty it is made to receive and collect the same.” It also provides:—
    “ That it shall be the duty of the Court of Quarter Sessions in and for said county of Venango, before they shall appoint constables, to require from them a bond, in the name of the CommonAvealth, in such sum and vrith such sureties as shall be approved by the said court, conditioned for the faithful discharge of the duties imposed upon such constables by this act, and for the payment to the proper county treasurer of the full amount of taxes contained in any warrant and schedule which shall be delivered to them, or any of them, by the county treasurer of said county, after deducting exonerations, within four months from and after the date of the delivery of any such warrant as aforesaid.”
    The act further requires the constables “to settle their accounts, obtain their exonerations and pay over to the treasurer all moneys collected by them in pursuance of the said warrants within four months from and after the delivery of such warrants to them respectively.” And “ That in case any constable shall fail to make the settlement and payment required by the preceding section of this act within the time aforesaid, it shall be the duty of the treasurer of said county immediately to cause an. action of debt to be brought upon the bond of such constable.”
    The condition of the bond was that Coolidge should faithfully discharge the duties imposed on him by the foregoing act.
    The duplicate placed in the hands of Coolidge amounted in the whole to $7754.75, including state, county and other taxes: the county tax amounted to $6691.24, on which up to September 1st 1865 he had paid $3243.91, leaving a balance of $3448.05 still due, besides smaller sums for other taxes. Henry Dubbs, the treasurer of the county for 1865, made a statement on his books charging the constable with the duplicate, and giving credit in detail for cash, exonerations, &c., and by an erroneous addition stated the balance on the county tax at $2448.05; on the other taxes the balances were properly stated. In the report of the county auditors in January 1866, they stated that $2448.05 was the balance due by Coolidge on the county tax, together with the other balances just as the whole appeared on the treasurer’s hook. Coolidge afterwards paid all these balances, and it so appeared on the treasurer’s book, which was given in evidence. James Allison was county treasurer in 1866.
    On the trial, November 2d 1869, Coolidge testified for the defendant that he paid Dubbs, the treasurer, from time to time oh his duplicate, and it appearing on a final settlement in April 1866 that he had overpaid, Allison, then treasurer, paid him back $372. Witness removed from Yenango county into Crawford county in May 1866.
    The defendant testified that in June 1866 he heard that Coolidge was behind; Dubbs was assistant to Allison; defendant went to Allison about it; Allison told him to see Dubbs; he told Dubbs if he did not proceed he would not be holden; told him there was money coming to Coolidge in the neighborhood that could be fastened; Coolidge left no property in Yenango county; the debts due him he used to pay the school tax.
    Dubbs testified that Allison first gave information of the mistake he had made in Coolidge’s account, and he urged the commissioners to bring suit immediately.
    The plaintiff’s 5th point was:—
    “ If the jury believe from all the evidence that there are $1000, with interest thereon, due on account of B. C. Coolidge, that no notice of any kind was given by the defendant Alcorn to the treasurer or his clerk, until Coolidge had left the county, that then even if the notice was sufficient, it will not avail the defendant, and the plaintiff is entitled to recover in this case.”
    The court affirmed this point.
    The defendant’s points and their answers were :—
    “ 1. The defendant, Alcorn, being the surety of the constable, is entitled to credit in this action for all the money actually paid to the county treasurer by the constable, and this, although the treasurer may have refunded a part thereof under a misapprehension that the constable had overpaid his account.”
    This was affirmed.
    “2. If the jury believe that in the month of April 1866 the books in the county treasurer’s office showed the constable’s account balanced and settled, that immediately after the defendant Alcorn learned that there was an error or an alleged error in the addition of the credits, to wit, in the month of June 1866, he called on the county treasurer to make inquiry in relation thereto, and was by him referred to Henry Dubbs, Esq., late treasurer, then in the office of, and acting as assistant to said treasurer, and immediately thereafter called on said assistant, and upon learning that there was such error, notified said assistant that unless suit was immediately brought upon the bond he would consider himself discharged, accompanying the notice with information of property and choses in action belonging to said constable, out of which the amount due by said constable could be levied, and the treasurer neglected to bring suit as requested for more than two years, and further believe that the amount claimed in this suit is for county taxes only, the plaintiff is not entitled to recover.”
    “ Answered in the affirmative, in case you also find that at the time of such notice the constable had not left the county of Venango, and had property out of which the money could be made. But if defendant Alcorn gave no notice till after the constable Coolidge had left the county, taking with him all his property except choses in action of small amount, soon afterwards given to the school board, and Coolidge has not since resided in the county, then the notice was too late, and plaintiff may recover.”
    “ 3. This suit not having been instituted within three years after the date of the bond, is barred by the Act of 29th March 1824, if the Commonwealth has no interest therein.”
    “Answered in the negative. If the taxes remaining unpaid are in part due to the Commonwealth, and part to the county of Venango, or all to the county, the statute does not apply.”
    “ 4. If the jury believe that the county treasurer was charged in the auditors’ report for the year 1865 with all the taxes placed in the hands of constable Coolidge for collection, except the several sums reported against said Ooolidge in the same report, and said report was not appealed from by said treasurer, but was confirmed, and said Ooolidge has since, and before the bringing of this suit, paid into the treasury the full amount of said several sums reported against him as aforesaid, the plaintiff is not entitled to recover.”

      “ Answered in the negative.”
    By the 3d section of the Act of March 29th 1824, 8 Sm. L. 302, Purd. 182, pi. 9, suits against sureties in the bonds required from constables for the faithful discharge of the duties of their officers, are limited to three years from the date of the bond.
    The verdict was for the Commonwealth for $978.76.
    The defendant took out a writ of error and assigned for error:
    1. The answer to the plaintiff’s 5th point.
    2-4. The answers to the defendant’s 2d, 3d and 4th points.

      C. Heydrick, for plaintiff in error.
    — A surety may be discharged by laches of a public officer to bring suit on an official bond: Commonwealth v. Wolbert, 6 Binney 292; People v. Jansen, 7 Johns. R. 332; Commonwealth’s Appeal, 4 Barr 165; Arnold’s Estate, 10 Wright 280. Neglect to bring suit after notice relieved the surety: Cope v. Smith, 8 S. & R. 112; Wetzel v. Sponsler, 6 Harris 463. It is the duty of the commissioners to bring suit as soon as there is default: Cannell v. Crawford Co., 9 P. F. Smith, 202. The limitation of the Act of 1824 was applicable : Commonwealth v. Rose, 9 Casey 199 ; Foster v. Cumberland Valley Railroad, 11 Harris 371; Glover v. Wilson, 6 Barr 293. The settlement by the county auditors is conclusive : Black-more v. Allegheny County, 1 P. F. Smith 160.
    C. Hasbrouck (with whom were McCalmont & Osborne).

    — The public are not to suffer by the neglect of their officers: Wilson v. Glover, 2 Barr 406. The defence for neglect to sue is equitable, and would not avail if the principal were insolvent: Cope v. Smith, supra; Gardner v. Ferree, 15 S. & R. 28. The same principle applies when the principal has left the jurisdiction of the court. Only fraud in plaintiff or injury to the surety will release the surety: Gordon v. McCarty, 3 Whart. 407; Huffman v. Hulburt, 13 Wendell 377.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— The plaintiff in error was surety in the official bond given by the constable of Cherrytree township, Venango county, under the provisions of the Act of April 3d 1851, Pamph. L. 317, conditioned to pay the treasurer of said county the full amount of taxes contained in any warrant or schedule delivered to him by the said treasurer for collection, after deducting exonerations, within four months after the delivery thereof.

The bond is dated August 81st 1865, and this action was brought thereon against the surety on the 8th of October 1868. It was shown on the trial that the constable had failed to pay the full amount of the taxes contained in the duplicate or schedule which was delivered to him for collection, and with which he was charged on the books of the treasurer, after deducting exonerations, and that he removed from Venango to Crawford county, in May 1866, where he has since resided. It was further shown that the surety gave notice to the assistant treasurer, in June 1866, that he would have to look to the constable for the amount for which he was in default, and that if he did not proceed to collect the' amount in arrear, he would be holden no longer. No suit was brought against the constable by the treasurer, nor was any action commenced on his official bond until the institution of the present suit against the surety.

The first question presented by the assignments of- error in this case is : Was the surety discharged from his liability by the neglect of the treasurer to bring suit against the constable after the notice was given ? This question arises on the answers ox the court to the plaintiff’s 5th and the _ defendant’s 2d point, which constitute the 1st and 2d assignments of error. The court, in answering these points, instructed the jury, in substance, that if they found that at the time the notice was given the constable had not left the county of Venango, and had property out of which the money could be made, the surety was discharged. But if the defendant gave no notice till after the constable had left the county, taking with him all his property except choses in action of small amount, soon afterwards given to the school board, and has not since resided in the county, then the notice was too late, and the plaintiff may recover. The uncontradicted evidence was that the constable had left the county before the notice was given, and we have, therefore, nothing to do with the fii’st instruction contained in the answer. It was as favorable as the defendant had any right to ask, even if the notice had been given before the constable left, and no complaint is made of it. And there is nothing in the second instruction of which the defendant has any reason to complain. If the surety of a public officer is discharged from liability by neglect to bring suit against such officer, after notice by the surety that he will no longer be holden unless suit is brought — a point which does not seem to have been decided by this court — it does not follow that the surety will be discharged if the defaulting officer has removed from the county, where the liability was incurred, before the notice was given. If this were the rule, what would be its extent or limit ? Must the public or its agents follow the officer wherever he is to be found, and bring suit against him, in order to hold the surety liable for his default after such notice ? This would be an unreasonable requirement, and it seems to me that no such duty can be implied from the nature of the contract, or inferred from the relation of the parties. The utmost that the surety can reasonably require is, that the public or its agents shall bring suit against the defaulting officer if he is within the jurisdiction of the court where the liability was incurred. But whether they are hound to do this is a question which we need not determine, as it does not properly arise in this case.

The next question presented by the record is, whether the suit is barred by the 4th section of the Act of 29th March 1824, limiting the time for the commencement of actions against sureties in constable’s bonds to three years after their date.

The court instructed the jury that the action was not barred, and this was clearly right. The bond upon which this suit was brought is not the ordinary bond given by a constable for the just and faithful discharge of the duties of his office, but a bond given under the special provisions of the Act of April 3d 1851, imposing upon constables in the county of Venango the duty of collecting state and county taxes in their respective townships, conditioned for the faithful discharge of the duties imposed upon them by the act, and for the payment to the treasurer of the county of the amount of taxes contained in the warrant or schedule delivered to them. It is clear that such a bond does not come within the provisions of the Act of 1824, but is embraced in the general provisions of the Act of 1798, and therefore the suit is not barred because it was not commenced within three years after the date of the bond.

The only remaining question is that which is presented by the 4th and last assignment — and there was not a particle of evidence upon which to raise the question presented by this assignment— and if there had been, it could not have availed the defendant. However conclusive upon the treasurer the settlement of his accounts by the auditors may have been, if unappealed from, it is clear that the settlement could have no effect upon the constable’s liability for the taxes, one way or the other, though the treasurer may have been charged by the auditors with all the taxes placed in his hands, except the sums reported against him — for the very plain reason that it was not a settlement of the constable’s account.

As we discover no error in the instructions given by the court to the'jury, and as none others are alleged, the judgment must he affirmed. Judgment affirmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Randolph’s Appeal.
    1. An original and cross bill are usually, but not necessarily, beard together.
    2. When both causes are at issue, the plaintiff in the cross-suit may have an order that they be heard together.
    3. A partner filed a bill against his fellow for an account, an answer was put in; before hearing, the defendant filed a cross-bill averring a settlement since filing the answer and praying the plaintiff might be compelled to perform it; the plaintiff put in an answer. Held, that the settlement being a preliminary question the court might order the cross-suit to be first heard.
    4.. There being no replication, it was not error to refuse to appoint an examiner.
    5. When a cause is heard on bill and answer, it is to be determined by the facts alleged in the bill and not denied in the answer; the court cannot look beyond the pleadings.
    October 19th 1870.
    Before Thompson, O. J., Read, Ag-new, Shakswood and Williams, JJ.'
    Appeal from the Court of Common Pleas of Crawford county: In Equity: Of October and November Term 1870, No. 180.
    On the 11th of March 1867, Abishai F. Randolph filed a bill against Robert Randolph, alleging:—
    1 and 2. That he and Robert, on the 1st of April 1866, entered into partnership, to carry on the business of a saw-mill and merchandise, for five years, the saw-mill a.nd a farm to be the capital furnished by Robert, and Abishai to furnish $2000 in cash and goods; a house for Abishai’s dwelling, with rooms for the store, to be erected at their joint expense, the building to be Robert’s at the end of the five years; if dissolved sooner, parts of the real estate designated were to be taken by each at a valuation.
    3. On the 1st of February 1867, Robert gave notice of dissolution, left the concern, but continued to carry on the business, and had improved the mill.
    4. No settlement between the parties had been made; Abishai had sought a settlement, but Robert had declined.
    The bill prayed for an account; that Robert might be restrained from collecting the partnership debts or disposing of the property; for the appointment of a receiver; and general relief.
    On the same day a preliminary injunction was granted.
    On the 16th of April, A. Power was appointed receiver.
    On the 18th of April, Robert filed an answer, admitting the partnership and dissolution as set out in the bill; he averred that he and Abishai jointly took an inventory of the stock, and Abishai took'possession of it and of the store, house and garden, and still held possession; that Abishai was carrying on the merchandise part of the business, had the books of the firm, and was collecting the accounts; that Robert had possession of the mill; that he was not collecting any of the accounts; that he was, and had been, ready to account for all the firm property, and had so informed Abishai.
    On the 24th of April J. W. Smith, Esq., was appointed commissioner to take testimony.
    The docket-entries showed that the case was on the argument-list May 2d, and continued. On the 20th of November 1868, Robert filed a cross-bill against Abishai, in which he set out:—
    1. The filing of Abishai’s bill.
    2. That on the 22d of April 1867, during the continuance of the cause, they entered into an agreement as follows:—
    “ It is agreed, by the undersigned, that all matters and accounts between us be fully and finally settled to this date, upon the following terms: Robert Randolph to pay Abishai the sum of $300, settle with the millwright man, pay half of the court costs in the equity case, release his claim of every kind to the goods in the grocery, and transfer his right of every kind in the books of the firm to said Abishai. Abishai agrees to leave the entire premises within ninety days, and if possibly convenient, in sixty days from this date, taking books, goods in grocery, lumber as now divided, and the sum of $300, now paid; the premises to be left in good order, and all'title thereto hereby released, Abishai discontinuing the equity case in court, and paying the other half of the court costs.
    '“ April 23d 1867. R. F. Randolph, [l.s.]
    A. F. Randolph, [l.s.] ”
    3. That at signing the agreement, Robert paid the counsel of Abishai $300, for which a receipt was endorsed on the agreement, 'also half the costs of the suit, released his claim to the goods, transferred his right to the books, and complied in all things with the agreement; that Abishai had taken the firm books, the goods, the lumber as it was then divided, but refused to pay half the equity costs or discontinue the case.
    The solicitors of Abishai accepted service of the bill November 25th 1868.
    On the 10th of June 1869, Robert ruled Abishai to answer, demur or plead in thirty days.
    Abishai filed an answer to the cross-bill (at what time does not a.ppear from the record). The answer denied the allegations of the second paragraph of the bill as stated, and set out as the facts, that, after negotiations between the parties, “the defendant in the original bill, and the complainant in the cross-bill, at last said that he would accept a proposition that had been made by this respondent through Messrs. Pettis and Power, but that he would do nothing until he had seen his attorney; * * * he came to the ofiice of Mr. Pettis, this respondent’s attorney, in Meadville, and asked him to write a paper that would be proper for both to sign, and Mr. Pettis complied with, his request, the said complainant in the cross-bill takirig such paper to his attorney, Mr. Brawley, afterwards returning with it, signed by him, handing it to Mr. Pettis, in the absence of your respondent, together with $300 in money, which he was to pay down to the respondent, then withdrawing to give Mr. Pettis an opportunity of seeing the complainant in the original bill, and obtained his signature, and pay over the money referred to; that Mr. Pettis afterwards found this respondent, presented the paper so signed by the complainant in this cross-bill, with instructions or a request that he sign it, which this respondent did, without even reading it or any portion of it, or hearing any part of it read, supposing that it had been prepared in pursuance of the proposition made and accepted through Messrs. Pettis and Power, and that having signed it, this respondent inquired of Mr. Pettis what time was fixed in the article for the payment of the amount due to this respondent from the complainant in this cross-bill upon the books of the company, and it appearing from an examination of the article that no time had been fixed, it became necessary for Mr. Pettis again to seek the complainant in order that the agreement should be perfect in that respect; that Mr. Pettis immediately called upon the said complainant, who refused to fix such time as well as to pay such amount; that these facts being communicated to this respondent by Mr. Pettis, this respondent flatly refused to take a dollar of the money, and never did, not even counting it, but directed his attorney, Mr. Pettis, to return the said sum of $300 to the defendant, and that Mr. Pettis went immediately to the defendant and offered him the identical money he had received from him, informing him that this respondent would not receive the money unless the whole of the proposed agreement could be carried out by him, the complainant, and that the said complainant refused to receive the money back, which is still subject to his order.
    “ 3. In answer to the third paragraph in complainant’s cross-bill of complaint, the respondent saith: That the receipt of Mr. Pettis, his attorney, referred to as being upon the back of the said agreement, was also written and signed in your respondent’s absence, and that at the time when the complainant in this cross-bill of complaint signed his' name to the proposed agreement this respondent was not present, nor was he at the time when Mr. Pettis signed such receipt upon the back of such agreement and took the money, nor had he ever seen or in any way directed the paper or agreement.”
    The docket-entries show that, “August 19th 1869,” “ September Term 1869,” “November 25th 1869,” “December 14th 1869,” the case was on the argument-list.
    The record did not show any further pleadings, nor did it show any return by the commissioner appointed to take testimony under the original bill.
    In the opinion the court said:—
    “ The parties agree that the cross-bill should be first disposed of, and should be argued and determined upon bill and answer.”
    On the 16th of December 1869 the court “ decreed that the prayer of the bill be granted, and the original bill by Abishai F. Randolph v. Robert Randolph be dismissed, and that the plaintiff therein pay half the costs made prior to the 23d of April 1867, and all the costs made since that date.”
    Abishai Randolph appealed, and assigned 16 errors.
    The first 10 were to expressions in the opinion of the court.
    11. Refusing to appoint a master.
    12. In hearing and disposing of the cross-bill before considering the original bill.
    13. In not considering the testimony taken by the commissioner before the cross-bill was filed.
    14. In not treating the bill and cross-bill as one case.
    15 and 16. In disposing of the case when not at issue and dismissing the original bill.

      S. N. Pettis (with whom was M. P. Davis), for appellant, as to the 14th and 15th errors,
    cited Collyer v. Collyer, 2 Wright 257; Elderkin v. Fitch, 2 Ind. 90; White v. Buloin, 2 Paige 168; Reed v. Keemp, 16 Ill. 445 ; Rosevelt v. Dale, 2 Cowen 129. Equity will relieve from a contract made under a mistake: Jenks v. Fritz, 7 W. & S. 201; Hunt v. Freeman, 1 Ohio R. 490; Conwell v. Evill, 4 Blackf. 67; Linn v. Burkey, 7 Ind. 69. If from the whole record it appears the decree is erroneous, it will be reversed: Hays v. Thomas, Breese R. 137. The answer is to be taken as true: Derby v. Gage, 38 Ill. 27; Green v. Vardissan, 2 Blackf. 324; Jennison v. Graves, Id. 440; Badger v. Badger, 2 Cliff. 137. A compromise improperly obtained may be set aside in chancery: Spahr v. Hollinshead, 8 Blackf. 415; Young v. Losie, 2 Ind. 27.

      J. B. Brawley, for appellee.
    — A cross-bill may be filed where new matter arises: Adams’s Eq. 402; 3 Danl. Ch. Pr. 1743. An- original and cross bill are usually, but not necessarily, heard together: Brightly’s Eq., §§ 605, 606; 3 Danl. Ch. Pr. 1751; 2 Haddock’s Ch. 429.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— The original bill in this case was filed, March 11th 1867, by the appellant praying for an account, a preliminary injunction and the appointment of a receiver, and the same day a preliminary injunction was granted; and, on the 16th of April 1867, a receiver was appointed. The answer of the appellee was filed on the 18th of April 1867, admitting the partnership and averring a willingness to account for all the partnership property which had come into his hands. On the 20th of November 1868, a cross-bill was filed by the appellee reciting the original bill and alleging that on the 22d of April 1867, during the continuance of the said cause, the parties entered into an agreement in writing, signed and sealed by them, and setting forth a copy thereof, by which it was agreed that all matters and accounts between them should be fully and finally settled to that date, and that the equity case should be discontinued by the appellant, upon the terms stipulated in said agreement and as therein provided; and averring that in all things he had complied with the requirements of said agreement, but that the complainant in said bill — the appellant — • still refuses to discontinue the said equity case and to pay the one-half of the costs therein as agreed, but is proceeding in .the said cause; and praying that the said bill be forthwith dismissed, and for such other and further relief as the nature and circumstances of the case may require. On the 16th of June 1869, a rule was taken on the appellant, the respondent in the cross-bill, to answer, demur or plead thereto within thirty days. The appellant’s answer to the cross-bill, denying the facts to be as alleged by the complainant in regard to the said agreement, and giving a statement of the facts as he alleged them to be, is brought up with the record in this case; but it does not appear from the docket entries or any other part of the record when it was filed. The cause was placed in the argument list, August 19th 1869, and again at September Term 1869, November 25th and December 14th 1869. On the 16th of December 1869, the case was heard on the cross-bill and answer, and the court ordered and decreed that the prayer of the bill be granted, and that the original bill be dismissed, and that the plaintiff therein pay half of the costs, &c. The appellant has assigned sixteen errors for the reversal of the decree in this case — ten of which relate to the opinion of the court — five to the course of proceedings, and one to the decree. We shall not attempt to notice all the assignments, and it will not be necessary in order to dispose of the questions which properly arise in the case; The record comes before us in a very unsatisfactory shape. It is in several respects defective, and the proceedings seem to have been conducted with but little regard to the established rules and practice in equity. There was no decree for an account, though the answer admitted the appellant’s right to an account — but a commissioner was appointed to take testimony. The cause was placed on the argument list at different times, as the docket entries show, but it does not appear whether it was set down to be heard on the original bill and answer, or whether on the cross-bill and answer, or on both. The learned judge, before whom tbe case was heard, says, in bis written opinion brought up with tbe record, that the parties agreed that the cross-bill should be first disposed of, and should be argued and determined on bill and answer. This is denied by the appellant’s counsel and assigned for error. Tbe record does not show any agreement of tbe parties, or of their counsel, that tbe case should be beard on tbe cross-bill and answer, and tbe only evidence of-such an agreement is tbe statement of tbe fact in tbe opinion of tbe court. But as no application was made to the court for tbe correction of the error, if such it was, we must take tbe fact to be as stated, and treat tbe case as having been set down to be beard on bill and answer by tbe agreement of the parties. Tbe original cause and cross-cause are usually, though not necessarily, beard together. This rule applies where both causes are at issue, and in a situation to be heard, and tbe plaintiff in tbe cross-suit may have an order that they be beard together: 3 Danl. Cb. Pr. 1851. But no barm was done tbe appellant in this case by bearing tbe cross-cause first, even if it was beard, as be alleges, without bis consent. Tbe cross-bill was filed to enable tbe appellee to take advantage of tbe settlement, which he alleges was made by tbe parties, subsequent to bis answer. Whether, therefore, tbe parties made tbe alleged settlement was a preliminary question which it was proper for tbe court to dispose of before proceeding to bear tbe original cause.

There is nothing on tbe record to show that tbe court refused to appoint a master to take testimony, and report the facts in the cross-cause, on motion of tbe appellant’s counsel, as alleged; and if tbe court did so refuse, it was not error. There was no replication to tbe answer, and no issue which made tbe appointment of a master to take testimony necessary or proper.

Nor was there any error in disregarding and not considering tbe testimony taken by tbe commissioner in tbe original cause touching tbe subject of tbe cross-bill, if tbe case was set down to be beard on the cross-bill and answer. Where a cause is beard on bill and answer, tbe rights of tbe parties must be determined by the facts alleged in tbe bill, and admitted or not denied in tbe answer, and tbe court cannot look beyond tbe pleadings in order to determine tbe rights of tbe parties.

We now come to the main question in tbe case: Did tbe appellant admit in bis answer to the cross-bill that tbe parties bad made an agreement for tbe full and final settlement of all matters and accounts between them as alleged by tbe appellee ? If be did, then tbe irregularities of which be complains did him no barm, and tbe decree of the court must be affirmed. What then are the facts in relation to tbe alleged agreement as averred or admitted in tbe answer ? Tbe appellant admits that be signed tbe paper. But taking tbe facts- to be as averred in tbe answer, did be so execute it as to make it a valid and binding agreement ? The negotiations for the settlement were not conducted by the parties themselves, or in the presence of each other. When the terms upon which the settlement was to be made by the parties had been arranged, as was supposed, the agreement was drawn up by Mr. Pettis, the appellant’s counsel, at the request of the appellee. After consulting his counsel, the appellee signed the paper and handed it to Mr. Pettis, together with the money which he was to p>ay by the terms of the agreement. Mr. Pettis then took the paper to the appellant and requested him to sign it, which he did, as he avers, without even reading it or any portion of it, or hearing any part of it read, supposing it had been prepared in persuance of the proposition made and accepted through Messrs. Pettis and Power. Having signed it, he inquired of Mr. Pettis what time was fixed for the payment of the amount due him from the appellee on the books of the company. It appearing from an examination of the article that no time had been fixed, Mr. Pettis immediately called upon the appellee for the purpose of having the agreement made perfect in this respect, who refused to fix the time as well as to pay the amount. These facts being communicated to the appellant, he flatly refused, as he says, to take 'a dollar of the money, and never did, not even counting it, but directed Mr. Pettis to return it to the appellee; and he avers that Mr. Pettis went immediately to him and offered him the identical money he had received from him, informing him that the appellant would not receive the money unless the whole of the proposed agreement could be carried out by him; and the money is still subject to his order.

It is clear, if the facts are as alleged in the answer, that the agreement was not executed by the appellant. It was signed by mistake, and before it was delivered by Mr. Pettis the mistake was discovered, and the appellant refused to receive the money and consummate the agreement. The delivery of the paper to Mr. Pettis was not in execution of the agreement, but in order that it might be executed by the appellee in accordance with the terms of the proposed arrangement as understood by the appellant. If a party who has signed and delivered a paper by mistake is not bound by it, much less is one who discovers the mistake after he has signed, and before he has delivered the paper, and who refuses to consummate the agreement because of the mistake. It cannot be pretended if the appellant, after signing the paper, had refused to deliver it, and accept the money because of the discovery of the alleged mistake, that he would be bound by it. Why then should he be bound by the delivery of the paper to ■ Mr. Pettis in order to have the mistake corrected ? The court was clearly in error in deciding upon the facts stated in the answer that the written contract of settlement was entirely consummated before the alleged mistake was discovered. And even if it had been, why should the appellant be precluded in equity from setting up the mistake in avoidance of the alleged agreement ? If then the agreement, though signed, was not consummated by the appellant, as we have seen, it was not binding upon him in law. If it was executed by mistake it was not binding in equity. And the court erred in dismissing the appellant’s bill on the ground that the alleged agreement was admitted in his answer. The decree must therefore be reversed, and the..cause sent back to be proceeded in according to equity.

Decree. — This cause came on for hearing on an appeal from the decree of the Court of Common Pleas of Crawford county dismissing the appellant’s bill, and was argued by counsel; and now, after due deliberation had thereon, it was ordered and decreed that the said decree of the Common Pleas be reversed, and that the cause be remitted to the said court to be further proceeded in according to the course of equity practice.


author: Agnew, J.

text:
    Mead Township Road.
    1. If a road, report is filed at or before the term to which it is returnable and is ready to be taken up, but has to pass over to an adjourned court, a confirmation nisi then will not vitiate the proceedings.
    2. If the adjournment leaves a reasonable time for exceptions before the following term, it is not against the requirement of the road law.
    3. Ewing’s Mill Road, 8 Casey 282, Ross Township Road, 12 Id. 87, Gibson’s Mill Road, 1 Wright 255, distinguished.
    October 19th 1870.
    Before Thompson, C. J., Bead, A&new, Sharswood and Williams, JJ.
    Certiorari to the Court of Quarter Sessions of Orawford county: No. 185, to October and November Term 1870.
    On the 15th of April, 1869,D. W. Canfield petitioned for a private road from a public road leading from Meadville, &c., “ to run from the canal bridge, &c., to lands of the petitioner.” On the same day an order was issued to three viewers. They reported that they commenced at a line of petitioner’s land, and ran by various courses and distances “ to towing-path of the French Creek feeder, and up said towing-path to canal bridge near the residence of D. P. Smith.” They reported that a private road was “ necessary to furnish access to the owner, D. W. Canfield, to a lot isolated from his other property, and from any other public highway except French creek. The viewers further report that in their opinion this route, being mostly on the bank of French creek, will do less injury to private property than hy any other direction, and recommend that the road he opened 25 feet wide. No portion of the road will require grading except at the canal bridge, its terminus.”
    The report of the viewers was filed June 11th 1869.
    “ July 9th 1869, report confirmed nisi and ordered to be opened, 25 feet wide.
    “July 27th 1869, exceptions filed.
    “ December 11th 1869, exceptions dismissed and report confirmed finally.”
    D. P. Smith and other landholders removed the proceedings into the Supreme Court hy certiorari.

      J. R. Kennedy (with whom was Gr. W. Keeker), for certiorari,
    referred to the 4th and 11th sects. of Road Law of June 13th 1836, Pamph. L. 555, 556, Purd. 871, 872, pl. 4, 13; Smithfield Creek Bridge, 6 Whart. 363. A report made and confirmed at an adjourned court is irregular: Stauffer’s Appeal, 1 Amer. L. Reg. 411; Chartier’s Road, 12 Wright 314; Ewing’s Mill Road, 8 Casey 282; Gibson’s Mill Road, 1 Wright 256; Ross T. Road, 12 Casey 87.

      J. B. Brawley (with whom were J. B. Oompton and J. K. Brooks), contrá.
   The opinion of the court was delivered, November 3d 1870, by

Agnew, J.

— The chief question in this case, as to the time of the confirmation of the report of viewers, was decided here at last term in the “Road from Herrick’s to Cussewago Bridge.” We there held that when the report is filed in due time, to wit, at or before the term to which it is returnable, and is ready to be taken up by the court, but has to pass over to an adjourned court, the confirmation nisi then will not vitiate the proceedings. We-are compelled to recognise the fact that the press of business in criminal and other cases in the Quarter Sessions often requires the road business to be laid over to an adjourned court. If the adjournment leave a reasonable time for exceptions before the following term, we cannot say that the requirement of the road law is disobeyed. The cases in 8 Casey 282, 12 Casey 87, and 1 Wright 255, are all instances of confirmations out of time at a subsequent term, with an order to reach back nunc pro tunc to the proper term. This is in violation of the act requiring the report to be returned at the next term, and after confirmation to lie over until the following term before it can be recorded. But in the present case the report came in in due time, and the only irregularity alleged is that the court did not confirm it nisi until an adjourned court. There being ample time intervening between the confirmation nisi and the following term, we cannot say there was error. To give the law such a rigid interpretation would cause a great many reports to fall, and add largely to the expense of road proceedings. The case before us is very different from that supposed by Justice Church in 8 Casey 284, to wit, confirmation on tbe last day of a term where tbe end of one term is tbe beginning of another, as in Allegheny county, and no time would intervene therefore between tbe confirmation and tbe following term for exceptions. That would be unreasonable, and against the intention of the legislature, which was to allow a reason-able time to make objections against tbe road.

Tbe report as to tbe grading is substantially that none is necessary. The report evidently means that some filling or excavation only is necessary to get upon tbe bridge at tbe terminus of the road. This is not tbe grading meant in tbe act, and tbe viewers and tbe court must have been satisfied that tbe connection between tbe terminus of tbe road and tbe bridge could be conveniently made.

Proceedings affirmed with costs.


text:
    Bleakley’s Appeal.
    1. Irvin bought land by articles and paid part of the purchase-money;
    Lamberton entered a judgment against him, afterwards Irvin assigned the articles to Bleakley antedating the assignment to precede the judgment to defraud Lamberton, and Bleakley paid the vendor the balance of the purchase-money. Lamberton bought Irvin’s title under his judgment. Lamberton was entitled to specific performance from the vendor without repaying Bleakley.
    2. Bleakley was not entitled to subrogation to the vendor’s rights.
    3. Subrogation is of pure equity and benevolence, not of contract.
    4. One attempting to defraud another by payment, cannot ask repayment from him attempted to be defrauded.
    5. The payment was not on a bargain with the vendor, but was voluntary.
    6. A chancellor will not assist one to obtain anything arising out of a
    fraud. ‘

    7. He who does iniquity shall not have equity.
    October 19th 1870.
    Before Thompson, C. J., Read, Agnew, Shabswood and Williams, JJ.
    Appeal from tbe decree of the Court of Common Pleas of Venango county: In Equity: No 54, to October and November Term 1870.
    This was a bill in equity filed February 18th 1869, by Robert Lamberton against James Bleakley, Samuel P. Irvin and F. D. Kinnear.
    On tbe 6th of August 1864 Kinnear contracted to sell to Irvin a lot of land in Franklin, Venango county, for $>2600, of which $1000 were to be paid in band, one-half of tbe remainder in 6 months, and the balance on the 6th of August 1865, when the deed was to be made; the contract to be void and the payments made to be forfeited on failure to make any payment within 30 days after it was due. Irvin entered into possession about the 1st of September, made improvements, and paid all the purchase-money except $820. On the 1st of June 1865 a judgment was entered in favor of the First National Bank of Franklin against. Irvin and others for $6000. Bleakley was and continued to be cashier of the bank. On the 10th of June a judgment against Irvin for $15,440.05 was entered in favor of Lamberton, the plaintiff, in the Court of Common Pleas of Yenango county. About July 19th 1865, Irvin executed a written assignment of his interest in the lot to Bleakley; this assignment was dated May 1st 1865. Bleakley paid Kinnear $820, the balance of the purchase-money, August 5th 1865. The bank issued an execution on their judgment on the 7th of June 1866; it was satisfied by a sale of the defendants’ property. On the 14th of October 1867 the plaintiff issued an execution on his judgment, purchased Irvin’s interest in the lot at sheriff’s sale on the 4th of'November 1867, and shortly afterwards took possession of it.
    The bill set out the foregoing facts, averred that the assignment of Irvin was antedated at the instance of Bleakley, with intent to defraud the plaintiff. The prayer was that the assignment might be cancelled and Kinnear be decreed to execute a deed to the plaintiff.
    Bleakley answered that he took the assignment and made the last payment to Kinnear to prevent a forfeiture of the lot and money; that the understanding with Irvin was that he was to hold the lot until Irvin repaid the $820 and settled his indebtedness to the bank, and then reassign to Irvin’s wife. He denied knowledge at the date of the assignment of Lamberton’s judgment and that the assignment was antedated with intent to defraud.
    August 26th 1869, the bill was taken pro confesso as to Irvin and Kinnear for default in answering, and W. C. Rheem, Esq., was appointed examiner and master. He reported finding the facts substantially as above stated, and that “ the assignment was antedated with intent to defraud the plaintiff.”
    Bleakley filed exceptions to the report, which were overruled by the court, Trunkey, P. J., who decreed:—
    That the assignment be and remain of no force or effect whatsoever against the plaintiff, Robert Lamberton, his heirs and assigns, and as to him and them absolutely void.
    That the said F. D. Kinnear, his heirs and assigns, be prohibited and for ever enjoined from making and executing a deed to said James Bleakley for the said lot of ground.
    That the said F. D. Kinnear may have leave to execute and deliver to the said Robert Lamberton a deed in fee simple for the said lot, upon the payment by said Lamberton for the revenue stamps required to be placed thereon.
    That the defendants, James Bleakley and Samuel P. Irvin, pay the costs of this action.
    Bleakley appealed to the Supreme Court and assigned for error : — •
    1. Overruling the 7th exception to the master’s report, viz.: “ The master erred in not finding that the effect of the payment by Bleakley to Kinnear was to enhance Lamberton’s security by discharging the prior lien for purchase-money, and in not finding that Lamberton, the execution-creditor, stood in the shoes of Irvin his debtor, and had no other or greater rights in the premises than Irvin himself had.”
    2. Overruling the 8th exception to the master’s report, viz.: “ The master should have found that Bleakley, by assignment from Irvin and payment of balance of purchase-money to Kinnear, had the right to call upon Kinnear for the legal title, and that the legal title was in Bleakley, subject to the right of Lamberton to demand the same on paying the purchase-money which was due by Irvin at the date of the assignment to Bleakley.”
    3. In entering a decree in favor of Robert Lamberton, the plaintiff, he having neither paid nor offered to pay defendant Bleakley the eight hundred and twenty dollars and interest, purchase-money paid F. D. Kinnear on the 1st May 1865.
    4. In entering their decree making null and void as to Robert Lamberton the assignment of S. P. Irvin to James Bleakley, and decreeing the execution and delivery of a deed from F. D. Kin-near to said Lamberton without imposing terms on said Lamberton, to wit, that he pay to James Bleakley eight hundred and twenty dollars with interest from August 6th, 1865, being amount of purchase-money paid by said Bleakley to F. D. Kinnear on article of agreement, on the 5th day of August, 1865.
    5. In making a decree cancelling the assignment and decreeing the execution and delivery of a deed from Kinnear to Lamberton on grounds not charged or set forth in the bill, to wit, the making and procuring the assignment from Samuel P. Irvin with intent to hinder and delay creditors.

      W. L. Cook (with whom was S. C. T. Dodd), for appellants.
    Judgments are not a lien on after-acquired property: Water’s Appeal, 11 Casey 524. If the vendee assigns his equity, and the assignee makes payments on the contract, a judgment against vendee will not attach on the estate as enlarged by such payments: Russell’s Appeal, 3 Harris 319 ; Dennison’s Appeal, 1 Barr 201; Academy v. Frieze, 2 Watts 16; Walson v. Willard, 9 Barr 96. A judgment-creditor is not a purchaser; he stands on the footing of his debtor: Cover v. Black, 1 Barr 493; Reed’s Appeal, 1 Harris 476.

      A conveyance fraudulent as to creditors is good as between the parties ; such conveyance is voidable, not void : Anderson v. Roberts, 18 Johns. R. 527; Pearsoll v. Chapin, 8 Wright 13; 4 Kent’s Com. 517; 1 Story’s Eq. Jur., § 371; Curtis v. Price, 12 Vesey 103. In some cases, even where the instrument is void, the court will impose terms: 2 Story’s Eq. Jur. 696. Bleakley having paid the purchase-money the legal seisin was in him: Pritts v. Richey, 5 Casey 77. A decree working injustice will not be made: 2 Story’s Eq. Jur., § 769; Brightly’s Eq. Jur., § 216. It requires less fór a defendant to resist than for a plaintiff to enforce. Lamberton must do equity by paying the unpaid purchase-money before he can ask a conveyance: 2 Story’s Eq. Jur. §§ 769,

      C. Heydrich (with whom was C. W. Gilfillan), for appellee,
    cited Russell’s Appeal, Academy v. Frieze, supra; Eckman v. Eckman, 5 P. F. Smith 273.
   The opinion of the court was delivered, October 27th 1870, by

Agnew, J.

— The facts of this case are few. Robert Lamberton was the owner of a judgment for $31,000, entered against Samuel P. Irvin on the 8th day of June 1865. Irvin had purchased of E. D. Kinnear, Esq., lot No. 449 in Eranklin at $2600, of which $820 only remained unpaid, and would fall due on the 6th of August 1865, with a provision for forfeiture of the contract in case of non-payment for thirty days after it fell due. On the 19th of July 1865, Irvin assigned his contract to James Bleakley, binding him to pay the $820 to save the forfeiture, and with the admitted understanding that Irvin should refund the $820 to Bleakley, settle his indebtedness to the bank, of which Bleakley was cashier, and that then Bleakley should reconvey to Irvin’s wife. But the assignment was antedated to the 1st of May 1865, thus overreaching Lamberton’s judgment. The master finds that this was done to defraud the plaintiff. The finding is ably vindicated in the opinion of Judge Trunkey. The absolute character of the paper, though but a security, the agreement to reconvey to Irvin’s wife instead of himself, and the attempt of Bleakley to use the paper to defeat the sheriff’s sale of the property by Lamberton on his judgment, evince the true motive for antedating the paper.

Bleakley paid the $820 to Kinnear, and now claims a decree for this sum, before specific performance shall be decreed to Lamberton, who purchased Irvin’s title at the sheriff’s sale. Kin-near does not resist specific performance, but stands ready to convey to Lamberton, whenever the eovinous assignment to Bleakley is put out of his way. It is Bleakley who resists the decree until he is refunded the $820, paid upon the footing of the fraudulent agreement with Irvin, to defeat Lamberton’s judgment. Bleakley is made a party to the bill only for the purpose of putting aside the covinous assignment to enable Kinnear to convey to Lamberton. The question then is whether a chancellor would require Lamberton to refund the $820 to Bleakley, as a condition to setting aside the assignment and entitling Lamberton to specific performance of Kinnear.

But clearly Bleakley cannot demand repayment of Lamberton either at law or equity. And first he is not entitled to subrogation to Kinnear’s rights. Subrogation is not a matter of contract but of pure equity and benevolence: Kyner v. Kyner, 6 Watts 221; Wallen’s Appeal, 5 Barr 108. On what pretence, in foro conscientice, can a party attempting to carry out a scheme of fraud against another, by a payment, claim compensation of the party he has attempted to defraud ? Conscience and benevolence revolt at such an iniquity. Again Bleakley did not recognise Kinnear’s title by the payment. He did not profess to bargain for it, and Kinnear did not profess to sell it to him. His act was simply a payment and no more, made by him because of Irvin’s duty to pay, and accepted by Kinnear because of his right to receive from Irvin. Besides the payment was accepted by Kinnear in ignorance of the attempted fraud. There can be no legal intendment therefore of a bargain on Kinnear’s part to vest his right to receive the money in Bleakley. As to Lamberton the payment by Bleakley was not only fraudulent and intended to displace his judgment, but it was also voluntary. It was not paid at Lamberton’s request nor for his use and benefit; but on the contrary was intended to defeat his right, as a creditor by overlapping his judgment, by means of the covinous transfer. Bleakley is therefore neither a'purchaser, nor a creditor of Lamberton, nor an object of benevolence, but is forced upon the record to compel him to put out of the way the fraudulent barrier to Kinnear’s specific performance to Lamberton. He cannot, thus standing before a chancellor, ask him to make repayment to him a condition to a decree to remove the fraudulent obstruction he threw in the way. The payment is one of the very steps he took to consummate the fraud upon Lamberton. If he have a legal right of recovery he must resort to his action at law, and if he can have none, it is a test of his want of equity. And in addition to all this, it is a rule that a chancellor will not assist a party to obtain any benefit arising from a fraud. He' must come into a court of equity with clean hands. It would be a singular exercise of equity, which would assist a party, who had paid money to enable him to perpetrate a fraud, to recover his money, just when the chancellor was engaged in thrusting out of the way of his doing equity to the injured party, the very instrument of the- fraud. Who does iniquity shall not have equity : Hackney v. Weitney, 14 Wright 244-5.

We are therefore of opinion the court committed no error in refusing compensation, and the decree of the court below is confirmed.


text:
    Rhines’s Administrators versus Evans.
    1. In an action against an attorney for neglect to collect, the statute begins to run from the time the attorney first became liable.
    2. An attorney gave a receipt for a note “ for collection,” the Statute of Limitation did not begin to run in his favor from the date of the note, but from a reasonable time afterwards for beginning proceedings.
    3. In the absence of peremptory instructions, the attorney is allowed a reasonable discretion.
    4. What is reasonable most frequently depends upon circumstances and then is for the jury.
    5. Where the duty is immediate, the right of action arises and the statute begins to run from the attorney’s receipt of the money.
    6. Suit for neglect in not commencing proceedings was brought against an attorney seven years and five months after a note had been placed in his hands for collection. Held, as matter of law, that the statute was a bar.
    7. Morrison v. Mullin, 10 Casey 17, Livingston v. Cox, 6 Barr 360, McDowell v. Potter, 8 Id. 189, remarked on.
    October 20th 1870.
    Before Thompson, C. J., Read, A&new, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Jefferson county: No. 127, to October and November Term 1870.
    This was an action of assumpsit by the administrators of A. S. Rhines, deceased, against J. B. Evans, commenced July 27th 1865.
    The cause of action was. the neglect of the defendant in not using due diligence to collect a note placed in his hands for collection. The pleas were, the general issue and the Statute of Limitations.
    The case was tried December 18th 1869 before Campbell, P. J.
    The plaintiffs gave in evidence the following receipt:—
    “ $365. Brookville, February 10th 1858.
    “Rec’d for collection of A. Rhines one note or due-bill on Lukins & Beeson, of Rochester, dated Oct. 30th 1857, for three hundred and sixty-five dollars.
    “J. B. Evans.”
    Lukins, one of the drawers of the due-bill, testified, that they were solvent, and had been at and ever since they gave the due-bill ; that they would not pay it, but would adopt any legal means to prevent its collection; that at the time the due-bill was given, it was the understanding that it was to be taken up in the next spring by a note; that they had given a note in the spring to a man representing himself to be the agent of Rhines, but the due-bill was not taken up; the note was paid at bank.
    The plaintiffs read the deposition of John A. Myler, to which were attached these exhibits :—
    “Received, Rochester, Pa., May 13th 1858, from Lukins & Beeson, their note of this date for three hundred and sixty-two dollars and thirty cents, payable to the order of Andrew S. Rhines, at the Merchants’ and Manufacturers’ Bank of Pitts-burg, in four months. In consideration of the above, the undersigned John A. Myler agrees to pay, or cause to be paid, to the said Andrew S. Rhines a due-bill for three hundred and sixty-five dollars, dated in December last 1867, and signed by Lukins & Beeson. John A. Myler.”
    “ $372.30. Rochester, Pa., May 13th 1858.
    “ Four months after date we promise to pay to the order of Andrew S. Rhines three hundred and seventy-two dollars and thirty cents. Value received. Payable at the M. and M. Bank of Pittsburg, Pa. Lukins & Beeson.”
    The deponent said the signature to the receipt had not been written by him; the writing was that of John S. Piehl, and made without the deponent’s authority; the note was endorsed by him as an accommodation endorsement; the proceeds had not been placed to his credit; Piehl had run away in 1862 or 1863.
    The court charged the jury: “ Judge Evans’s receipt being dated 10th February 1858, and this suit not being brought till July 1865, the Statute of Limitations, under the evidence, is a bar to the plaintiffs’ recovery, and therefore your verdict ought to be for the defendant.”
    The verdict was for the defendant, and the plaintiffs took a writ of error, assigning the charge of the court for error.

      G. R. Jenks, for plaintiffs in error,
    cited Zacharias v. Zacharias, 11 Harris 454; Morrison v. Mullin, 10 Casey 17; Vanhorn v. Scott, 4 Id. 317; Foster v. Jack, 4 Watts 340; McCoon v. Galbraith, 5 Casey 295; McDowell v. Potter, 8 Barr 190; Glenn v. Cuttle, 2 Grant 273; Campbell v. Boggs, 12 Wright 526.
    There was no argument nor paper-book for the defendant in error.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— On the 10th of February 1858, J. B, Evans, Esq., gave his receipt to A. S. Rhines for a due-bill on Lukins & Bee-son, of Rochester, Pa., dated October 30th 1857, for $865, for collection. Evans is called attorney in the paper-book; but whether he is an attorney at law does not appear, and is perhaps not very material: Campbell v. Boggs, 12 Wright 524. So far as we learn from the paper-book, nothing whatever appears to have been done by Evans toward the collection of the money. It appears, however, from the testimony of Lukins, that there was an understanding that the due-bill might be renewed in the following spring by a note; and Lukins & Beeson actually gave their note at four months, dated May 13th 1858, for $372.30, payable to the order of A. P. Rhines at the Merchants’ and Manufacturers’ Bank of Pittsburg. J. S. Piehl, the person who called on Lukins & Beeson and got the new note, acted without authority, and did not surrender the due-bill, for the reason, probably, that it was in the possession of Evans. The new note was endorsed by John A. Myler, as he says, as an accommodation endorser, and was paid by Lukins & Beeson at maturity. Lukins & Beeson considered themselves absolved from further liability, and Lukins, who was examined in 1869, said that they, Lukins & Beeson, would take any legal means to prevent collection. The Statute of Limitations was then a protection to them. During all this time we hear nothing of Evans, and of nothing done by him to collect the due-bill. This action is assumpsit, brought by Rhines against Evans on his undertaking of the 10th of February 1858, and was commenced on the 27th of July 1865. The court below held that the action was barred by the Statute of Limitations, and this is the only error assigned; How the second note came to be paid at the bank without the endorsement of Rhines, to whose order it was drawn, does not appear ; but it is presumable, if it had been endorsed by him or by his authority, Evans would have shown it, and thus absolved himself. As the case stands, then, Evans took no step whatever to-collect the due-bill of $365, and Rhines has lost his money. Under these circumstances, when did the Statute of Limitations begin to run ? All the authorities agree in this, that it began when the cause of action first arose — that is, when Evans first became liable to Rhines for neglecting to collect the money : Campbell’s Adm’rs v. Boggs, 12 Wright 524; Downey v. Garard, 12 Harris 52; Morrison’s Adm’rs v. Mullin, 10 Casey 17 ; Barton v. Dickens, 12 Wright 518. But when did Evans become liable to Rhines for a neglect of duty ? It is clear he did not at the date of the receipt, for that would allow no time to perform the duty. Clearly a reasonable time must be allowed to begin. The attorney must be invested with some discretion in the absence of peremptory instructions. As remarked by the present Chief Justice, Morrison’s Administrator v. Mullin, supra, “ to give effect to the spirit of the statute, the law sometimes, in the absence of stipulation by the parties, fixes the time when the cause of action shall be taken to have accrued, by the diligence required of the party. When the time for doing an act necessarily precedent to bringing a suit is indefinite, it allows a reasonable time. When that reasonable time has elapsed, the duty of diligence begins.”

What is a reasonable time is a (question most frequently dependent on circumstances, and therefore to be submitted in such cases to the jury. In the case of Livingston v. Oox, 6 Barr 360, a suit against an attorney for neglect of duty, six months’ failure to commence a suit against a debtor in failing circumstances seems to have been held an unreasonable time, and the plaintiff Cox recovered against Livingston. And where the duty is immediate, as in the-collection of money, the right of action accrues and the statute begins to run from the time of the attorney’s receipt of the money, even though he gives no notice of its collection, the law deeming it gross negligence on part of the creditor to neglect to make inquiry for six years, unless the attorney has been guilty of concealment or of some act to put his client off his guard. Such is the modern doctrine qualifying and to some extent overruling McDowell et ux. v. Potter, 8 Barr 189, and some previous cases. See Campbell’s Administrator v. Boggs, 12 Wright 524, Downey v. Garard, 12 Harris 52, and authorities therein cited. The same duty of diligence on part of the creditor to prevent the bar of the statute, is to be found in analogous cases; as where a call for instalments under a subscription to stock is necessary: Railroad Co. v. Byers, 8 Casey 22. See also Morrison v. Mullin, supra. Let us examine, then, in view of these principles, the facts of the case before us. Evans received the note for collection on the 10th of February 1858, and this suit was not commenced against him until seven years and five months had elapsed. Was the period of one year and five months sufficient to enable the court to say as a matter of law, that the delay by Evans for that time to take any steps toward collection was unreasonable ? Doubtless it was in the power of Rhines to show, if the facts were so, that during this time Evans had proceeded diligently, and that the lack of diligence occurred afterward during the period of the remaining six years; or to show that Evans had given him false information or otherwise misled him, and thus to prevent the bar of the statute. But as the case stands before us Evans did nothing whatever, and Rhines remained quiescent during this whole period of seven years and five months. Under these circumstances what was to be left to the jury ? There were no facts, no circumstances to enable them' to determine the reasonableness or unreasonableness of the delay-except the mere lapse of time, and this was fully within the knowledge of the court. It became, therefore, a question of law for the court to decide, and surely it is not a difficult question to determine, for no one could assert that it is reasonable the attorney-should delay seventeen months without taking a step; or that the creditor should delay seven years and five months without making an inquiry or bringing a suit.

The plaintiff in error contends that the understanding testified to by Lukins that Lukins & Beeson were to have an extension of time on the due-bill and the giving of the new note which fell due on the 13th September 1858, were a sufficient excuse for the delay until September 1858, leaving but ten months intervening before suit brought, and that this is not an unreasonable time to delay before proceeding to collect the money. But there is no evidence that the fact of the renewal was known either to the plaintiff or the defendant, or that the defendant was postponed by it. Had the plaintiff consented to it, that itself would have discharged, the defendant, for the renewed note was paid at maturity. If the renewed note had anything to do with Evans’s delay in proceeding on the original due-bill, it does not appear, while if he had taken prompt steps the new note would have been discovered, and if given by Lukins & Beeson without the plaintiff’s authority, they could have been pursued on the due-bill in time to prevent the claim of the plaintiff against them from being barred by the Statute of Limitations. From these views it is evident that the judgment of the court must be affirmed, not, however, because the statute began to run from the date of the receipt, but because the negligence of Evans was so great, that, standing unredeemed by any facts or circumstances in the case, the court was bound to say to the jury that the period of delay of seventeen months was unreasonable, and the statute had barred the plaintiff’s action before he began his suit.

Judgment affirmed.


author: Sharswood, J.

text:
    Fehley versus Barr.
    1. A judgment for purchase-money was entered against Green, afterwards January 29th, he applied for the benefit of the Bankrupt Law and was discharged as of February 24th. Barr bought his land May 8th, under the judgment; the land was set apart to Green under the bankrupt exemption, and he sold to Fehley. In ejectment by Barr, Fehley alleged that Barr concealed his title and encouraged Fehley to buy. Held, that evidence that Fehley had been informed by a stranger of Barr’s title was relevant.
    2. Fehley testified on cross-examination that he did not know whether the stranger had informed him. Held, that this was not collateral and he might be contradicted.
    3. The record of proceedings in bankruptcy is only primfi, facie evidence of the facts stated in it and may be contradicted by parol.
    4. A purchaser at sheriff’s sale acquires' the interest of the defendant at the date of the judgment, although he may have been adjudged a bankrupt before the sale.

      5. The court charged that a judgment under which the land was sold being for purchase-money to the defendant, there was no exemption under the Bankrupt Law. Held to be correct.
    6. The Court of Common Pleas in which a judgment is entered has jurisdiction after the defendant has been adjudged bankrupt, and a sale by the sheriff would pass a perfect title to the purchaser.
    7. The assignee in bankruptcy is not a judicial officer, his setting apart exempt property is not conclusive.
    8. The assignee’s setting apart land as exempted, does not divest the lien of judgment clear of exemption.
    October 20th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1870: No. 74.
    This was an action of ejectment, by John S. Barr against William Fehley, brought February 8th 1869, for a lot of land in Winslow township.
    The cause was tried February 22d 1870, before Campbell, P. J.
    The plaintiff proved the title of the land in one W. S. Green, August 22d 1865, and a judgment entered against him December 8th for $100, in favor of Thomas Montgomery, for part of the purchase-money. He also gave in evidence sheriff’s sale to him of the lot under the judgment on the 8th of May 18(68, and deed from sheriff, dated same day, and acknowledged in open court September 17th 1868.
    The defendant then gave in evidence a deed, dated September 14th 1868, for the same lot, from W. S. Green to Fehley the defendant ; record of proceedings in bankruptcy in the case of W. S. Green; application January 29th 1868, “ discharged 18th August 1868, as of 24th February 1868.” Return, claim under exemption law for land in dispute; property set apart for bankrupt including lot in dispute approved by register August 1st 1868; Montgomery and Barr’s (plaintiff) debts, amongst others, proved August 10th 1868.
    He gave evidence that Montgomery assigned the judgment under which the land was sold on the same day.
    The defendant testified that he told the plaintiff he was going to buy the land from Green, and plaintiff, told him in answer to defendant’s inquiry that he had no claim to it. On cross-examination he testified that the plaintiff did not tell him that he had bought the lot, nor did he know it; that he did not know whether one Stockdale told him anything about it. He gave other evidence for the purpose of showing that the plaintiff told him that he, plaintiff, had no claim to the lot.
    In rebuttal the plaintiff testified that before the sheriff’s deed had been acknowledged to him, the defendant came to his house and told him that he, defendant, was about to buy the lot from Green ; plaintiff told him that he had bought; that in an hour or two after-wards Eehley and Green came to him together ; Green said he had sold the lot to Fehley; plaintiff said, “ All right, I have nothing against Green.”
    Under objection and exception P. A. Stockdale testified: “I told Fehley that Barr had a claim on the property and he had better let it alone; that was before he had bought.”
    Under objection and exception Thomas Montgomery testified : “ I did not prove or offer to prove my judgment against W. S. Green before the register in bankruptcy, only I was a witness for J. S. Barr; I was taken before the register for Barr; I proved no claim of my own.”
    The plaintiff submitted these points, which were affirmed:—
    1. John S. Barr, the plaintiff’s vendee, acquired the interest that W. S. Green had in the land at the time of the lien of the judgment under which the land was sold attached, and it would be unaffected by a conveyance of the debtor.
    2. The judgment of Thomas Montgomery against W. S. Green on which the land was sold being for the purchase-money of land, as to him there is no exemption law.
    3. If, under the judgment of Thomas Montgomery against W. S. Green, the said Green either from the fact that said judgment was for purchase-money or that said judgment waives the right of exemption, could not claim the benefit of $300 out of the land sold under the Act of 1849, he could not under the Bankrupt Act.
    4. The Court of Common Pleas of Jefferson county, Pennsylvania, had jurisdiction, and a sale of the real estate by the officer of that court would pass a perfect title to the purchaser, and the assignee in bankruptcy setting aside the land under a claim of exemption under the Bankrupt Act would not affect the title.
    The defendant’s points and their answers were :—
    1. The setting apart to W. S. Green" of the property in controversy as an allowance to him in his proceedings in bankruptcy followed by a regular discharge, vested in him a perfect title to such property, clear of all encumbrances. If, therefore, the jury believe the defendant purchased the property thus set apart to said Green from him, it interposes a bar to the plaintiff’s recovery.
    Answer: “ Under the circumstances of this case we think the proceedings in bankruptcy can have no effect on plaintiff’s title, the sheriff’s sale was made before the property in dispute was set apart to the bankrupt, and the subsequent acknowledgment of the sheriff’s deed would vest in the purchaser as good a title as if no proceedings in bankruptcy had ever been commenced. We answer this point in the negative.”
    2. If the jury believe that the defendant was induced to pay his money to W. S. Green for the property in controversy in consequence of the statement of the plaintiff that his purchase from Green was all right, the plaintiff is estopped from asserting any title he at that time had to his prejudice, and he cannot recover.
    Answer: “We answer this point; that one who encourages another to purchase land and expend money upon it, cannot set up a better title in.himself to defeat the purchaser, if the defendant Fehley wishing to purchase the property, and knowing of the sheriff’s sale to Barr, went to Barr and asked him if he had a claim or was going to hold his claim to the premises, and that'he told him he was not going to enforce his title or claim, but for him to go ahead and buy, it would be all right, and relying on such statement and disclaimer he bought from Green and paid his money, Barr will be postponed, although his title may have been good. But you must be satisfied that Barr actually made such disclaimer, and that the declaration that all was right referred to Fehley’s contemplated purchase, and not to the personal relations between Green and Barr.”
    The verdict was for the plaintiff.
    The defendant took out a writ of error. He assigned for error:—
    1, 2. The admission of the evidence of Stockdale and Montgomery.
    3-6. The answers to the plaintiff’s points.
    7, 8. The answers to the defendant’s points.

      G. A. Jenks (with whom were Jenks & Clark), for plaintiff in error.
    — Stockdale was a stranger, and what he said was not notice to Fehley of Barr’s title: Kerns v. Swope, 2 Watts 78; Miller v. Cresson, 5 W. & S. 284. Montgomery’s testimony was in contradiction of the record, and therefore its admission was error : Selin v. Snyder, 7 S. & R. 170. Proving the judgment under which the lot was sold discharged it and no title passed to Barr: Bankrupt Act of 1867, •§ 21; Hoffman v. Strohecker, 7 Watts 89; Garrett v. Dewart, 7 Wright 349. Setting apart the lotto Green under his exemption right was a judicial decree and final judgment. It cannot be revised in a collateral proceeding: Yaple v. Titus, 5 Wright 195 ; Stokely v. Decamp, 2 Grant 18. One who encourages another to purchase cannot set up a better title in himself to defeat the purchaser: Maple v. Kussart, 3 P. F. Smith 348; Carr v. Wallace, 7 Watts 400; Millingar v. Sorg, 5 P. F. Smith 226; Arnolds. Cornman, 14 Wright 361.

      A. L. Gordon (with whom was J. Gordon), for defendant in error.
    Stockdale’s testimony was in contradiction of Fehley, and was of sueh a character as to entitle it to credit: Butcher v. Yocum, 11 P. F. Smith 168. The bankrupt record is but primá facie evidence. The time of the sale is the date to which the record must apply: Stewart v. Freeman, 10 Harris 120. The bankrupt exemption does not override the state law: Ruth’s Case, 7 Am. Law Reg. N. S. 161; Donaldson’s Case, Id. 213; Campbell’s Case, Id. 103.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— The first assignment of error is that the court below erred in admitting the testimony of P. A. Stockdale that he told Fehley before he bought, that Barr had a claim to the land for which the ejectment was brought. If the object of this evidence had been to prove that Fehley had notice of Barr’s title so as to affect him as a purchaser for valuable consideration, it would clearly be open to exception as coming from an entire stranger, to whom Fehley was bound to give no attention nor credit: Kerns v. Swope, 2 Watts 75; Miller v. Cresson, 5 W. & S. 284. But that was not the object of the testimony. It does not appear that there was any question raised at the trial as to Fehley being a boná fide purchaser without notice; nor could it have availed him, for he had constructive notice of the judgment upon which the sheriff’s sale to Barr was had, and of course of all the proceedings under it. The defendant below did raise a question of estoppel that Barr had concealed his title and encouraged him to go on and complete his purchase. Upon this question it was material to show that he had information, it mattered not from what quarter, that Barr had some claim; for it would tend to sustain the plaintiff’s theory that he had sought to entrap him into a declaration which might afterwards be set up as an estoppel. Besides, Fehley had himself been examined as a witness on his own behalf, and had denied or equivocated when asked whether Stockdale had given him this information. He said that he did not know that Stockdale told him anything about it. It was not a collateral fact immaterial to the issue, in which case his answer would have been conclusive. It was competent therefore to contradict him, and affect his credit with the jury.

The second error assigned is to the admission of the testimony of Montgomery — the creditor upon whose judgment the land had been sold by the sheriff to Barr — to the effect that he had not proved his debt before the register in bankruptcy. It is said that this contradicted the record. But we have no copy of this record on the paper-book, and it is always incumbent upon a plaintiff in error to furnish the court with the means of verifying the truth of his assignments. The defendant in error denies in, his counter-statement that there is any record of the proof of the debt before the register. All that is there as he avers is a list of debts furnished by the bankrupt to the register. We might dismiss this assignment upon this ground alone. But the Bankrupt Act of Congress of March 2d 1867 provides in the thirty-eighth section that copies of the records of proceedings in bankruptcy, duly certified under tbe seal of the court, shall in all cases be primá facie evidence of the facts therein stated. If then it did appear upon the record that Montgomery had proved his debt, it was only primá facie and not conclusive evidence of the fact, and could be contradicted by his or any other competent testimony.

The third assignment of error is to the affirmance by the court of the first point of the plaintiff below, which was in brief that a vendee at sheriff’s sale acquires the interest of the defendant in the land at the time the lien of the judgment under which it was sold attached, and that he is unaffected by any subsequent conveyance by the debtor. While the correctness of this proposition in general cannot be and is not denied, it is supposed to be erroneous in its , application to this case, because the defendant in the judgment had been adjudged a bankrupt before the sheriff’s sale. But the twentieth section of the Bankrupt Act before referred to expressly saves the lien of a judgment, unless indeed the judgment-creditor releases or conveys his claim to the assignee, and is admitted to prove his whole debt. He is entitled if he does not do so to proceed and realize whatever he can from his security, and'then come in and prove for the balance.

The fourth assignment of error is in affirming the plaintiff’s second point that the judgment of Montgomery being for the purchase-money of land, as to him there is no exemption law. The fourteenth section of the Bankrupt Act provides that there shall be excepted from the operation of that section which directs that the register shall convey to the assignee all the estate real and personal of the bankrupt, among other things, “ such property as is exempted from levy and sale upon execution or other process, or order of any court, by the laws of the state in which the bankrupt has his domicil at the time of the commencement of the proceedings in bankruptcy to an amount not exceeding that allowed by such exemption -law in force in the year 1864.” Now the third section of the Act of Assembly of this state, passed April 9th 1849, Pamph. L. 583, entitled “ An act to exempt property to the value of three hundred dollars from levy and sale on execution and distress for rent,” declares that the right of exemption as to real estate shall not be construed to affect or impair the liens of bonds, mortgages or other contracts for the purchase-money of the real estate of insolvent debtors.” There was therefore no error in affirming this point.

The fifth assignment of error is to the affirmance of the plaintiff’s third point, which was in substance that if under Montgomery's judgment Green, either from the fact that it was for purchase-money or that the judgment waives the right of exemption, could not claim the benefit of three hundred dollars under the Act of 1849, he could not under the Bankrupt Act. It is very clear from the express provision of the fourteenth section of the Bankrupt Act which has just been recited, that there was no error in affirming this point.

The sixth error assigned is in affirming the plaintiff’s fourth point “that the Court of Common Pleas of Jefferson county, Pennsylvania, had jurisdiction; and a sale of the real estate by 'the officer of that court would pass a perfect title to the purchaser, and the assignee in bankruptcy setting aside the land under a claim of exemption of the Bankrupt Act would not affect the said title.” Every branch of the proposition thus affirmed by the court is true and accurate. The assignee in bankruptcy is not a judicial officer. His act in designating and setting apart exempt property is not a judgment in rem conclusive against all the world. His act of setting apart this land to the bankrupt under the exemption clause of the Bankrupt Act did not divest the valid lien of a judgment-creditor clear of exemption and invalidate the title of the purchaser at sheriff’s sale under execution upon that judgment.

It follows from what has already been said that the court below committed no error in their answer to the defendant’s first point, which forms the subject of the seventh assignment. Under the circumstances of the case the proceedings in bankruptcy had no effect on the plaintiff’s title; the sheriff’s sale was made before the property in dispute was set apart to the bankrupt, and the subsequent acknowledgment of the sheriff’s deed vested in the purchaser as good a title as if no proceedings in bankruptcy had ever been commenced.

The answer to the defendant’s second point, which is complained of in the eighth assignment of error, substantially affirmed it, leaving to the jury to decide upon the evidence the fact whether Barr actually made such a disclaimer of title as was supposed, which was their province. The question of estoppel was therefore fairly submitted to the appropriate tribunal and passed upon by them.

Judgment affirmed.