author: Burnside, J.

text:
    Moore v. Commonwealth.
    A receipt obtained in discharge of a debt, which was paid with the worthless note of a broken bank, is not such property or valuable thing as is contemplated by the 21st section of the act of the 12th of July, 1842, which makes the obtaining of money, personal property, or other valuable thing by false tokens in writing, or by any false pretence whatsoever, an indictable offence.
    In error from the Quarter Sessions of Cumberland county.

      June 1. This was an indictment under the 21st section of the act of the 12th July, 1842, entitled, “An act to abolish imprisonment for debt, and to punish fraudulent debtors,” against Johnson Moore, the defendant below, for passing a worthless $5 note of the Commercial Bank of Millington, in the state of Maryland, on Philip Harman, the prosecutor, representing the said note as a good one, and thereby obtaining a receipt in full from Harman, in discharge of a debt due and owing by the said Moore to the said Harman. The question in this case arose upon the following facts, as proved upon the trial by Philip Harman, the prosecutor:— Johnson Moore, the plaintiff in error, being indebted to Philip Harman, the prosecutor, for work and labour performed by the said Harman, some time in the summer of 1846, was called upon for payment. The parties settled the account in writing, on the 23d day of December, 1846, by which it appeared that a balance of $8.76 was due to Harman. Moore thereupon paid this balance to Harman, who gave him a receipt in full. Harman testified that Moore gave him, in- payment, a $5 Millington Bank note — the note in question — also, a $2 and a $1 relief note, and the rest in silver; that the Millington note remained in his possession from the time he received it from Moore until the trial, with the exception of a short time, one day, when his son took it to purchase some articles at a store, where he ascertained it to be worthless, and returned it immediately to his father. Some time in the following February, soon after Harman ascertained that the note was worthless, he called on Moore, with the note in question, which he alleged had been given to him by Moore in payment of the balance found to be due on their account. The Commercial Bank of Millington, in the state of Maryland, was once in good credit, but had failed several years previously to this transaction. Moore denied that he had given any such note to Harman, and refused to give him another for it. This prosecution was then instituted.

      The alleged offence was thus charged in the indictment:—
    “ The grand inquest of the commonwealth of Pennsylvania, inquiring in and for the county of Cumberland, upon their oaths and affirmations, respectively, do present, that Johnson Moore, late of said county, yeoman,' being an evil-disposed person, and not regarding the laws of this commonwealth, ón the 21st day of January, in the year of our Lord 1847, at the county aforesaid, was indebted to one Philip Harman, in a large sum of money, to wit, in the sum of $8.78, and being then and there so indebted, with force and arms, the said Johnson Moore, on the day and year aforesaid, at the county aforesaid, and within the jurisdiction of this court, did fraudulently pay and cause to be paid, among other moneys, unto the said Philip Harman, a certain promissory note, commonly called a bank-note, of the Commercial Bank of Milling-ton, and state of Maryland, purporting to be of the value of $5, the said Johnson Moore then and there representing the said note to be of the value of $5; yet the said Johnson Moore, nevertheless, then and there knew the said note to be of no value, and utterly worthless, whereby the said Johnson, Moore did then and there designedly, by means of the aforesaid false pretence, obtain from the said Philip Harman, a receipt of great value, to wit, a receipt in full for the payment of money, to wit, for the payment of $8.78, with the interest, then and there to cheat and defraud the said Philip Harman, in contempt of the laws, to the evil and pernicious example of all others in like case offending, contrary to the form of the act of Assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.”
    To sustain the indictment, the commonwealth gavé in evidence the facts as contained substantially in the above statement, the account settled between the parties, and the receipt of Philip Harman to Johnson Moore, dated the 23d of December, 1846, for $8.76, in full. The court (Hepburn, P. J.) instructed the jury that the offence was indictable under the act of 12th July, 1842. The defendant was convicted. The court overruled a motion for a new trial and in arrest of judgment, and sentenced the defendant to pay a fine of $5, and costs of prosecution; whereupon this writ of error was allowed, and sued out by the defendant.
    Errors: 1. The offence is not indictable under any act of Assembly of Pennsylvania.
    2. There is no offence charged in the bill of indictment.

      Watts and Reed, for plaintiff in error.
    The act of 1842 makes it an indictable offence for any person by false pretence to “obtain from any person any money, personal property, or other valuable thingsit is essential, therefore, that it should be laid in the indictment that the defendant, by means of the false pretence, obtained something of value. The receipt for the payment of money is not a valuable thing, it has no value either as a loss to the prosecutor, or an acquisition to the defendant: U. S. Crim. Law, 115; Serg. Crim. Law, 464. The indictment is also defective in this, that it does not set out whose personal property, or other valuable thing, was lost or acquired. Did this receipt belong to the prosecutor, or if it did, had it any value in his hands while it remained there, or in the hands of the defendant when delivered to him ? Certainly none: for any evidence that would be sufficient to convict him of an offence for obtaining it, made it of no value to him; it was but primd facie evidence of payment, subject to be defeated in its operation by proof of the allegations now made.

      Bonham, contrá.
    Indictment under the 21st section of the act of 1842, abolishing imprisonment for debt: Pamph. Laws, 845, see. 21.
    If not indictable under that act, then the offence is punishable by no law in Pennsylvania.
    Not indictable at common law. No settled design manifested to cheat the public. Besides, the note was on a bank which had a legal' existence, and was a genuine note. The note had become worthless by'the failure of the bank; and the fraud consisted in representing it to be a good note, knowing it to be otherwise.
    The case of the Commonwealth v. Burdick, 2 Barr, 163, lays down the principle sufficiently broad to cover this case.
    The rule in case of fraud at common law: 3 Chit. Crim. Law, 994. No fraud indictable unless it affected the public. No cheating by an individual indictable, unless effected by means of a false token.
    This was found too narrow for the business of the world, as remarked by Chief Justice Gibson, in the case of the Commonwealth v. Burdick.
    The English statutes passed to remedy this evil were the following : the 33 H. 8, ch. 1, 3 Chit. Crim. Law, 996, which rendered indictable the falsely and deceitfully obtaining, or getting into one’s hands or possession, uany money, goods, chattels, jewels, or other things” by means of “privy tokens, and counterfeit letters in other men’s names.”

      30 Geo. 2, ch. 24, s. 1, 3 Chit. Crim. Law, 997, extending the remedy to verbal fraudulent representations. This statute renders indictable the knowingly and designedly obtaining from any person or persons “ by false pretence or pretences" — “ money, goods, toares, or merchandises," with intent to cheat or defraud, &c.
    52 Geo. 3 extended the provisions of 30 Geo. 2 to securities and choses in action, “ to bonds, bills of exchange, bank-notes, all securities and orders for the payment of money, or the transfer of goods or any valuable thing whatsoever3 Chit. Crim. Law, 999.
    7 & 8 Geo. 4, ch. 29, s. 53; Ros. Crim. Ev. 417, renders indictable the obtaining from any person uby any false pretence” — “any chattel, money, or valuable security" with intent to cheat, &c.
    Compare the 21st section of the act of 1842 with these statutes. It is wider, both in the pretences used, and the property to be obtained, than the English statutes.
    Giving a cheek upon a banker with whom the person keeps no account, indictable under 30 Geo. 2, ch. 24; Ros. Crim. Ev. 420.
    Giving a post-dated check, and pretending it was good and genuine, indictable under 7 & 8 Geo. 4; Rex v. Parker, Am. Crim. Law, 169 ; Ros. Crim. Ev. 421; 7 Carr. & Pa. 825; 32 Eng. Com. L. Rep. 755.
    Giving a forged note for 10s. 6d. indictable under 30 Geo. 2, ch. 24; Truth’s Case, Ros. Crim. Ev. 425; Russ. Ry. 127.
    Giving 12Z. for a horse, in notes on the Arundel Bank, and assuring the vendor that the notes were good. The defendant was convicted; but the judges held the conviction wrong, on account of the evidence being defective: Ros. Crim. Ev. 426; Flint’s Case, Russ. & Ry. 460; 1 Eng. C. C. 460.
    Giving a note issued by a bank which had stopped payment. The defendant was acquitted, on the ground that one of the firm had not become bankrupt, and the note might ultimately be paid: Spencer’s Case, Ros. Crim. Ev. 427; 3 Carr. & Pa. 420; 14 English Com. L. Rep. 376.
    Giving a paper writing, and pretending it was a good. 51. Led-bury bank-note, &c. Defendant acquitted, because it was not laid he knew the note was bad: Philpot’s Case, Am. Crim. L. 188; 1 Car. & Kirwan, 112; 47 Eng. Com. L. R. 110.
    Passing a bill of a broken bank at its nominal value, on a representation that it is good, indictable under the statute in Massachusetts, taken from 30 Geo. 2, ch. 24, s. 1; Commonwealth v. Stone, 4 Mete. 43; Am. Crim. L. 190.
    As to the thing obtained under our statute to constitute a fraud. Under the statute 7 & 8 Geo. 4, the property obtained must come within the description of “ chattel, money, or valuable security:” Yates’s Case, Ros. Crim. Ey. 428; 1 Moody Cr. Ca. 170; 2 Eng. C. C. 170.
    Obtaining a receipt from a plaintiff under pretence he would pay the money, not indictable at common law, but indictable under the statutes: Am. Crim. L. 193; People v. Babcock, 7 Johns. 201.

      June 8.
   Burnside, J.

The act of the 12th of April, 1842, “to abolish imprisonment for debt, and to punish fraudulent debtors,” is wise in its provisions, and humane in its objects; but constructions have been attempted to be put upon it which the legislature never contemplated. The indictment in question is predicated, and attempted to be supported 021 the 21st section of the act, which provides “ that every person who with intent to cheat and defraud another, shall designedly, by reason of any false token, in writing, or by any false pretence whatever, obtain from any person any money, personal property, or other valuable things, upon conviction,” &c.

What did the defendant obtain ? A receipt for an old debt, which on the allegations in the indictment is not worth a farthing. A receipt is always open to explanation, and when obtained by fraud, or given either under a mistake of facts or an ignorance of the law, it may be inquired into and corrected in a court of law as well as in equity: Thompson v. Vanfort, 1 Pre. ch. 182, 185; Vide Receipt, in Whart. Big.

The payment alleged on the face of the indictment, was no payment, and the receipt was no bar to Harman’s recovering his debt. If Moore had obtained any money .or merchandise, or anything of value from Harman, his case would be within the provisions of the act; but as the receipt was for a preceding debt, and if that receipt was obtained by fraudulent misrepresentations, and without value, it was neither a cheat at common law, or within the statute. The object of the 21st section'of the act, was to prevent the obtaining of money, or goods, or other valuable things, by false tokens or false pretences, and has no relation to the payment and settlement of old debts and accounts. Paying an old debt with base coin, or a worthless note, is no payment, and the person receiving the base coin, or the worthless note, has the same remedy at least to recover his debt that he had before the alleged payment took place. The debt was not extinguished by the receipt. It was not the obtaining of money or goods by a false token or pretence. It was a fruitless attempt to pay and discharge an old account.

Judgment reversed.

Eogers and Coulter, Js., dissented.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    Mortland v. Himes.
    The release of one of several joint debtors, if it do not increase the original responsibilities of the others, will not work a dissolution of the contract as to those not released.
    The release of a surety does not, in any case, increase the legal or equitable responsibility of the principal debtor, nor, as to him, change the nature or extent of his contract: which is to protect the surety from liability.
    The operation of the rule, that the release of a surety does not discharge the principal, is not excluded by the merger of the original contract of indebtedness in a judgment recovered; nor does the recovery of a judgment at law as between principal and surety, dissolve that relation.
    The release of a surety, after a joint judgment against him and his principal, does not discharge the principal from his obligation to pay the judgment.
    ‘The rule, that where a judgment is joint, the process to enforce its payment, must also be joint, is technical, and has more of form than substance in it; and the court out of which the process issues, will take care that it be not used so as to work injustice, and will protect a surety from an attempted disregard of .a release to him, by a creditor.
    In error from the Court of Common Pleas of Cumberland' county.

      June 2. This was a case stated, from which it appeared that one George Himes, the defendant in error, obtained and entered of record in the Court of Common Pleas of Adams county, on the 18th of October, 1842, a judgment by confession, without stay of execution, against Moses Mortland and David Harman, the plaintiffs in error. On the same day, a writ of fieri facias was issued on this judgment, which was returned on the 20th of October, 1842, “nulla bona,” by the sheriff. On the 29th of November, 1842, the plaintiff, George Himes, entered on the record a certificate or release, of which the following is a copy: — “ Phis is to certify that I exonerate Daniel Harman as security of Moses Mortland, in a judgment I hold against them, on the docket of Adams county, Pennsylvania; as witness my hand and seal, this %9th of November, 1842.
    George Himes, [l. s.]
    Witness: William Himes.”

      To November Term, 1845, No. 135, the judgment in this case was transferred by certified copy of the whole record, under the act of 16th of April, 1840, to the records of the Court of Common Pleas of Cumberland county. On this judgment a writ of attachment in execution was then issued,- under which, a sum of money, amounting to $90 — funds belonging to Moses Mortland— was attached in the hands of William M. Biddle, Esq., who was summoned as garnishee.
    The question, under the facts submitted to the court for decision, was, whether the release of George Himes to Daniel Harman, the surety, of the 29th of November, 1842, operated also as a release or discharge to Moses Mortland, the principal in the judgment, and as an extinguishment of the judgment.
    The court (Hepburn, P. J.) directed judgment to be. entered for George Himes, the plaintiff, for the amount of the judgment; and this was the error assigned here.

      Cfaullagher and Biddle, for plaintiffs in error.
    In a fieri facias and attachment under act of 1836, the defendant may plead any plea that he might have taken advantage of upon a scire facias post an. et diem; every object of a scire facias being provided for in the act itself: Ogilsby v. Lee, 7 W. & S. 445. We say, therefore, that no judgment can be given against Harman, who has been released — and consequently none against Mortland, who was jointly bound with Harman. It would be in effect giving two final judgments on a joint contract, which cannot be done; because each defendant is entitled to the benefit of his co-defendant’s plea. The plaintiff in contract or personal action must succeed against all the defendants or none: O’Neal v. O’Neal, 4 W. & S. 131. If a creditor release one of two joint debtors in a bond or judgment, or simple contract, it will discharge the other: Burson v. Kincaid, 3 Penn. Rep. 57; Ingersoll % Sergeant, 1 Whart. 358; 1 Rawle, 391, 398.
    The plaintiff by his suit elected to treat this as a joint claim, and. is bound by all the legal effects and consequences of a strictly joint demand. For, in a joint action against two on a joint and several bond, if the writ be served on one only, and judgment be taken against him, and the other is returned non est inventus, the judgment against the obligor who appeared, is a bar to the suit against the other: Beltzhoover v. Commonwealth, 1 W. 126 ; Downey v. Bank, 13 S. & R. 288; Walter v. Gingerich, 2 Watts, 204. Then after treating defendants as joint, courts will not permit the creditor, without the consent of the defendants, to change the liability from a joint to a several one: 1 Whart. 358.- Here Mortland’s liability was joint, and he never agreed to the release of Harman: nor to his (Mortland’s) being bound severally. See 2 Watts, 204.
    They also cited 40 Law Lib.; Pitman on Prin. and Su. 131,132; Nicholson v. Preville, 4 Ad. & Ell. T5; 1 Bos. & Pull. 630; 1 Sto. Eq., sections 112,124 and notes, 146 and 164; 1 Eonb. Eq. 134; 2 Watts, 204.

      Meed, contrá.
    At law, the general rule is, that the release of one joint judgment creditor is, per se, the release of the other. Primd facie, they both stand equally bound for the payment of the debt, and in equal parts. That being the import of the contract between all the parties, plaintiff and defendants, it cannot be •changed without the consent of all. If the plaintiff, by his own act, discharge one of the defendants, the contract, being an entirety, is at an end. But this is not always so in equity; and equity, in this court, controls the law. One of the exceptions to the rule is where one of the defendants is principal debtor, and the other but surety. And this is the position of the two defendants in this ease. The fact is made part of the special verdict. Mortland is the sole debtor, and bound to pay the whole; and a court of equity would enforce such payment, if necessary to indemnify Harman, the surety. The plaintiff then, in this case, has only done what a court of equity would have done, put the burden in the right place, and administered the law according to the principles of equity. The design of the parties, and the justice of the case, will restrict the release to the one defendant to whom it was given, and leave the obligation to the other in full force. This doctrine is sustained by the ease of Kirby v. Taylor, 6 Johns. Ch. B. 250. This case is full to the point; and it is cited with approbation by Chief Justice Gibson, in McLenachan v. Commonwealth, 1 Bawle, 361; 8 T. B. 168. -
    The ground of the rule in law in discharging both, is the protection of the rights of the defendants, that their mutual burdens shall not be cast upon pne. But suppose, in this case, Harman, the surety, had paid the debt either voluntarily or on compulsion: by our law, tempered by equity, he would have been entitled to substitution in the judgment as against Mortland, and could himself have enforced payment of it by him.
    It is said Harman may have paid the judgment as a consideration of the exoneration. This would only change the equitable plain-’ tiff, and the court below will take care of its suitors. Even if paid by Harman, the -judgment is good against Mortland. He also cited Burson v. Kincaid, 3 P. It. 57; Bank of Pennsylvania v. Winger, 1 Itawle, 302.

      June 14.
   Bell, J.

The principle is familiar, that a release of one of two or more joint, or joint and several debtors, will operate to release all the others from the obligation of the debt. The reason is, that otherwise the effect of the release would be to increase the responsibility of those not included in its terms, by casting the whole burden of the debt upon them, in direct violation of their contract, which was to bear it only in common with the others. This cannot be done without the consent of all who are jointly bound; and as the release is efficacious in favour of him to whom it is given, the only way in which the rights of the other debtors can be pre- • served, is to absolve them altogether from the obligation to pay. But an obligee may release one of two several obligors without disturbing his remedy against the other; for the undertaking of each is commensurate with the whole debt, and therefore the release of one does not increase the liability of the other, or change the nature or amount of his obligation. On the same principle, the release of a principal debtor will discharge a mere surety; but a release of one co-surety will exonerate the other only to the extent to which the releasee would otherwise have been compellable to pay. The creditor may recover against the other co-sureties, but not more than the proportion they would have paid supposing the co-surety released had contributed his share: Ex parte Gifford, 6 Ves. jun. 805. So too it has been held, and the determination is noticed with approbation by this court, in McLenachan v. Commonwealth, 1 Rawle, 361, that the release of one of three guardians by a ward, only discharges one who was surety for all of them to the extent of the liability of the release, but still leaving the surety bound fol* the other two: Kirby v. Taylor, 6 Johns. Ch. R. 242. And the reason .given is, that such appeared to be the understanding and agreement of parties, and therefore by the discharge pro tantof the release was prevented from increasing the responsibility originally assumed by the surety. It will thus be seen, that in each case the solution of the question, Whether a release of one joint debtor discharges another? depends upon the further question, Whether the effect of the release will be to increase the original responsibilities of the latter? If not, though effective as to the releasee, it is never permitted to work a dissolution of the contract of the party not released.

Now, as between principal and surety, both at law and in equity, the former is considered as the debtor, and morally bound to protect the latter against liability. In chancery the doctrine is that “if a person is surety in a contract, there is an implied contract that the principal shall indemnify the surety,” and this equity arises where the money is due though not paid, for it would be unreasonable that the surety should be for ever at the mercy of the creditor in respect to an engagement which ought to be performed by the principal: 1 Eq. Ca. Abr. 79, pl. 5; Hungerford v. Hungerford, Gilb. Eq. R. 67. Therefore a surety may come into a court of equity to compel the principal to relieve him from his liability. At law, the surety may recover from the principal in an action of assumpsit the money paid by the surety, on the ground that in the absence of an express stipulation between the parties, a promise is raised by implication of law, on the part of the principal, to repay the money so paid for his use: Toussant v. Martinant, 27 R. 100. This being so, the release of a surety does in no wise increase the legal or equitable responsibilities of the principal, nor, as to’him, change the nature or extent of his contract.

Upon the principle which has been brought to view, it follows from this that the discharge of a surety interferes not with the liability of the principal to the creditor; for such a discharge is nothing beyond what the principal himself was bound to effect, and there- ■ fore no injustice is done him. In accordance with this doctrine are the cases which determine that if the holder of a bill of exchange or promissory note give time to the acceptor or maker, who are considered as the principals, without the consent of the intermediate parties who stand in the place of sureties; or allow the acceptor or maker to renew the bill or note without consulting the other parties, they are discharged from its payment. But giving time to the drawer or endorser is no discharge of the maker or acceptor; nor will any prior endorser be exonerated by giving time to a subsequent one, for he is regarded as the surety of the preceding endorsers. These and the analogous determinations, of which there are many, proceed upon the rule that the discharge of a surety has not the effect to release the principal debtor: Pitman on Prin. and Surety, 175, 192.

Nor is the operation of this rule excluded by the merger of the contract, in a judgment recovered. In The Commonwealth v. Miller, 8 S. & R. 458, it was solemnly decided, that the relation of a principal and surety is not dissolved by a judgment at law; for there can be no reason why the fixing of the parties at law should absolve the principal from the moral obligation to protect bis surety. The soundness of this determination is recognised in The Bank of Pennsylvania v. Winger, 1 R. 303, where it was held that the virtual release of the estate of a surety from the lien of a judgment will not discharge the estate of a principal, even in favour of other lien creditors. In delivering the opinion of the court, the Chief Justice remarked, “ the refusal of the bank to take satisfaction out of the hand of the surety, was in furtherance of the equity between the debtors themselves. It waived its preference in favour of a surety to pursue the principal — the very thing a court of equity would have compelled it to do.” The case of Benson v. Kincaid, 3 P. R. 57, though decided on the ground of consent by all the parties to be affected by the release, may, I think, be regarded as strongly sanctioning the doctrine I have endeavoured to illustrate, and is the more valuable in its application here, from its being the case of a joint judgment recovered against principal and surety. The only objection urged at the bar against the applicability of the principle to such a judgment, is the purely technical one that, as the judgment is joint, the process to enforce it must necessarily be also joint. In this, there is more of form than substance, for admitting it, the court from which the process issues will take care that it be not used to work injustice. In the proper exercise of the discretion vested in them, they will doubtless protect the. surety from an attempted disregard of the release by the creditor.

It will be perceived we are of opinion that the judgment rendered by the court below, in favour of the plaintiff, under the case stated, is correct. Wherefore,

Judgment affirmed.


author: Coulter, J.

text:
    Martin v. Hammon.
    In covenant by a vendor against the vendee of land, who had entered and continued in possession, to enforce the payment of the last instalment of the purchase-money, where the plaintiff had tendered a deed before suit brought, and, without setting out his title, merely averred in Ms declaration, that he had done all he was hound to do, and the defendant neither alleged nor showed that the title was defective: Held, that the plea of covenants performed was an admission, that the title to the land conveyed by the deed tendered, was good.
    The addition of “ ahsque hoc,” to the plea of “ covenants performed,” puts the plaintiff to the proof of performance.

      In error to the Common Pleas of Cumberland county.

      June 2. This was an action of covenant, in which Paul Martin, the plaintiff in error, was the defendant below. On the 29th of September, 1837, Philip Hammon entered into an agreement to sell to Paul Martin a tract of land in Franklin county, containing one hundred and sixty acres, for the consideration of $800, payable as follows, viz: $50 on the 1st of April, 1838; the same sum on the 1st April, 1839, 1840, and 1841; $150 on the 1st April, 1842; and the same sum on the 1st April, 1843, 1844, and 1845: the said Philip Hammon thereby covenanting to make or cause to be made to the said Paul Martin a good title to the land, which was to be made by William McClelland.
    The vendee went into possession of the land, and paid all the instalments but the last one, which was payable on the 1st April, 1845, and for it this suit was brought. The pleadings were not stated in the paper-book; but it appeared on the argument that the plaintiff, without setting out his title, merely averred that he had done all that he was hound to do, and that the defendant pleaded ££ covenants performed.”
    To maintain the issue on his part, the plaintiff gave in evidence the agreement, dated the 29th September, 1837, between Hammon and Martin, and a deed of the 6th April, 1844, from William McClelland to Paul Martin, with proof that it had been tendered to Paul Martin before suit was brought, and that he was in possession of the land.
    The defendant’s counsel requested the court to charge the jury ££ that the plaintiff was not entitled to recover unless he has produced and shown to the jury a perfect title to the land mentioned in the agreement given in evidence, which he was bound to convey to the defendant in fee simple, clear of encumbrance, and is ready to deliver the same to the defendant.”
    The court instructed the jury to find the facts in evidence by the plaintiff specially, and they would render a judgment thereon. The jury did find the above-stated facts as proved by the plaintiff, upon which the court rendered a judgment for the plaintiff, to which the defendant excepted.
    Errors assigned: 1st. That the court rendered a judgment for the plaintiff instead of the defendant.
    2d. They should have instructed the jury that the plaintiff was not entitled to recover without showing that he had a good title and was ready to convey it to the defendant.

      Watts, for plaintiff,in error,
    contended that the vendor, the plaintiff below, was not entitled to recover, without showing that he had a good title to the land, and was ready to convey it to the vendee, the defendant below: Creigh v. Shotto, 9 W. & S. 82.

      JBrandebury, contó.
    To our declaration, the defendant pleaded “ covenants performed,” and thereby admitted that we had complied with every stipulation to be observed on our part, according to the terms of the article of agreement. He cited Snevily v. Egle, 1 W. & S. 480; Platt on Cov. 308; 1 Ch. PI. 325.

      June 8.
   Coulter, J.

This case is ruled by the case of Snevily v. Egle, 1 W. & S. 480. It may be admitted, that the plea of covenants performed, is not altogether tantamount or equivalent to the plea of payment, but it admits the foundation of the suit. The plaintiff did not set out his title; if he had, he would have been bound to prove it. Put as he merely avers that he had done all that he was bound to do, and as he was bound to give a good title, and the special verdict finds that he tendered a title before suit, the plea of covenants performed may fairly be construed as an admission that the deed tendered was good. The plaintiff came to trial without any notice that it was necessary for him to exhibit his claim of title. In Croke James, 369, cited ini Watts, it is determined, that where a plaintiff states generally that he has performed, the defendant must traverse that by some indication in the record; such as, that the plaintiff was not seised of a good title, or did not offer a good title. The usual mode of putting a plaintiff upon proof of performance, is by the addition of absque hoc, &c., to the plea of covenants performed. Altogether, the case is with the plaintiff. The defendant purchased the land, went into possession, and enjoys it. Nor does he allege or show that the title is defective. He ought to pay for it.

Judgment affirmed.


text:
    Moore v. Miller.
    In estimating the language which constitutes a lease, the form of words used is of no consequence; it is not necessary that the term lease should he used. Whatever is equivalent will be equally available, if the words assume the form of a license, covenant, or agreement, and the other requisites of a lease are present.

      A parol agreement that a person should enter on the land of another, dig ore, erect buildings, &c., and pay fifty cents a ton for all ore removed, amounts to a lease; but the duration of such lease is to be determined by the jury, to whom it must be referred to say whether, upon all the evidence in the case, it was at will, or from year to year, under the instructions of the court as to what constituted a lease for a year, and what a tenancy at will.
    Where the main fact in a cause under trial, was, as to the duration of a parol agreement or lease, and the testimony, which was opposing, and in some respects conflicting, only showed certain facts, from which the main point or fact might be presumed or inferred: the determination of the case, under all the evidence, is for the jury under proper legal instructions.
    It is error, if the court, at the request of either party, withdraw a case from the jury, if there be any matter in controversy under the evidence given, legitimately referable to them for determination: but if the evidence be clearly insufficient, the court may so instruct the jury.
    In error from tbe Common Pleas of Cumberland county.

      June 2 and 3. Thomas C. Miller brought trespass quare clausum fregit, against Johnston Moore, the plaintiff in error, to recover damages for the forcible expulsion of his hands from a mine-bank, and the pulling down of a cabin erected there for the workmen, as alleged by the plaintiff under a lease from the defendant, in consequence of which he was put to expense in searching for another ore-bank, to use indifferent ore, and his furnace at last compelled to stop for a short time on account of it. The defendant pleaded the general issue and “ liberum tenementum,” to which the plaintiff replied as follows:—
    “And the said Thomas C. Miller, as to the said plea of the said Johnston Moore, by him pleaded, as to the said several trespasses in the introductory part of that plea mentioned, and therein attempted to be justified, saith, that he, the said Thomas C. Miller, by reason of anything by the said Johnston Moore in that plea alleged, ought not to be barred from having and maintaining his aforesaid action thereof against him, the said Johnston Moore, because he saith, that whilst the said close, and the said building, cabin, and out-house, and the said iron-ore bank, with the appurtenances, was the close, bank, and freehold of the said Johnston Moore, and before the said time, when, &c., to wit, on the 15th day of August, 1844, at Dickinson township aforesaid, he the said Johnston demised the said close, building, cabin, and out-house, and ore-bank, with the appurtenances, to the said Thomas C. Miller, to have and to hold the same to him, the said Thomas C. Miller, for and during and until the full end and term of one year from thence next ensuing, and fully to be completed and ended, and so from year to year, for so long a time as they, the said Thomas C. Miller and Johnston Moore, should respectively please. By virtue of which said demise, he, the said Thomas O. Miller, afterwards and before the said time, when, &c., entered into the said close, building, cabin, and ore-bank, and becam'e and was possessed thereof, and continued so thereof possessed from thence until the said Johnston Moore afterwards, and during the continuance of the said demise, to wit, at the said time, when, &c., of his own wrong, broke, and entered the said close, building, cabin, and ore-bank, and committed the said several trespasses, in the introductory part of said plea mentioned, in the manner and form as the said Thomas C. Miller hath above thereof complained against him, the said Johnston Moore.”
    To this replication, the defendant rejoined, denying the demise, and the form thereof, and all the averments of the plaintiff, as stated therein.
    At the trial, before Hepburn, P. J., the plaintiff called the following persons as witnesses, who testified, in substance, as follows:
    Levi Trego: “I was present and heard Miller agree to paJ fifty cents a load for ore, and Moore agreed to take it. No time set to commence. Miller was to get the ore outside the corner of the field, where he dug in the woods. Moore told him to go on then, open the bank, and see what could be done. Moore did not say how long Miller was to have it. Saw Miller take ore out of the bank.”
    Jacob Trego testified that in August or September, 1844, he heard the parties agree upon fifty cents a load for the ore, that Miller opened at the corner of a field, in the woods, on Moore’s land.
    James Oliver: “ On the 20th of August, there was part of a load brought to the furnace from Moore’s. On the 11th of September, the first dug ore was brought. On the 5th day of August, 1845, Mr. Moore and General Miller came into the office. General Miller said Moore wanted a statement of his account. I commenced making out a statement; whilst I was doing that they were talking about the iron business, and spoke of the raising of the ore on Moore’s land. Mr. Moore intimated that he should quit digging there. General Miller said it would be breaking in on his arrangements entirely, that he had bought a depot at Allentown, and contemplated bringing ore back as he took pig iron there. This bank was on the road there — the best one. Mr. Moore said he could not be responsible for the general’s arrangements — that he must quit. The general alleged he had a right to raise ore there; Moore allowed he had no right, and must quit. Moore said he would go out that day and discharge the hands. General Miller said he was unwell'or he would go out, and before he would give it up he should break all the bones in his body. By that time' I had the account made out, and I handed it to Mr. Moore. He looked over the account and objected to some prices charged for sawing, and said that it was not according to the agreement in reference to the prices. I altered the account. The ore was settled for at fifty cents a load. Moore made no objections to it. He asked if that was the price we were paying others. The ore was of a very good quality for bar iron metal. That kind of metal is most sale-able. They were not a very long time digging there; they got sixty-nine loads, I think.”
    John McKinney: “ I went with Miller to the store the day they commenced opening the bank. We waited till about ten o’clock, till Moore came there. General Miller told him he had come now for the purpose of making a commencement at the ore-bank. Moore told him he was satisfied he should go on and do so. Miller then spoke of what way he was to have the ore. Moore asked Miller what his contract was at other places that he was getting ore ? He told him he was paying to William Houston and others fifty cents a load. Moore then told him he should have his ore at the same; there was something spoken about timber for cabins; Miller asked him what kind of a lease he was going to give, and Moore told him as much ore or as long as he wanted, or something to that amount; I can’t just mind the words. Miller asked him whether it was worth while to have a written article ? Moore said, Not betwixt us. Something was said about timber for cabins. Miller said he would have to put up cabins for hands, and would toant timber, and Moore was to show him where to cut the timber. That is all I heard about the contract. I went and brought two hands from Houston’s bank, and went to work that afternoon at Moore’s bank. This was in the last of August or first of September, 1844.”
    Philip Parlet: “ Peter Myers, Joseph Miller and me, and I think Mahew, put up one cabin. We commenced in the morning, worked that day. John Mooney, the wagoner, was there, and the team; it was General Miller’s team. Moore came there about the middle of afternoon. He asked us where we cut the poles for the cabin ? We told him. Said it was not the place he allowed; but being they were cut, it might go so then.”
    Jacob Swawn testified, that in the fall of 1844 he worked at Miller’s ore-bank on Moore’s land; that Moore came there at times, and that on one occasion the witness let him down in the shaft to examine it; and that when he came out of the shaft, he expressed himself well pleased. That on the 7th or 8th of August, 1845, -Moore came to the bank where witness was still working for Miller, stopped him and the . other hands from working, ordered and drove them off, and with the assistance of two men who had been waiting for his arrival at the bank, pulled down a cabin erected by Miller for the miners.
    Thomas Hunt: “ I had worked on the bank in 1844 — worked till about Christmas or New Year’s. Sometimes five or six hands. Moore would come along frequently and stop. The shaft ivas about thirty-five or forty feet deep. We had a ladder and lowered him from bench to bench till we got him into the drift. He asked me the quality of the ore — I told him it was very good ore, and there was plenty of it. He seemed very well satisfied. He took a candle and went into the drift; I went with him; he seemed satisfied that the ore was plenty as it was. He Avas in the shaft and drift tAro or three times. He asked me what Miller was giving Houston for ore. I told him fifty cents a load. He said he was very well pleased at that, and that he had bargained Avith Miller for that, to let Mm have ore to How his furnace as long as he wanted. I was at work at the bank when he came to turn us out. We had been there two or three weeks. He rode up and asked what ayo were doing there. I told him, digging ore. I was cutting trees. He said he wanted to know what we were cutting trees doAvn for. We told him we were cutting the trees so that the sun could dry the ore. He told us all to stop, that we should not have any more ore from there — should not work any more there. He stayed there, and told us to load our things on the wagon, as it came from the depot, and clear out. He stayed there till we loaded all our things on, and made us all go off from there. He took Chambers, Evans, and Ike Neal, and went to work to tear the chimney doAvn. He would not give us time to get our cooking things out of the cabin, till he had stones against our legs coming out of doors.”
    James Oliver: “We were compelled to send our hands to other places in search of ore, after we were driven off this bank of Moore’s. The first set started out to it, but another set started out a short time after them. First set worked on Weakley’s farm, five hands. The whole amount of work for ore without any beneficial results, amounted to eight months, one hand. Some are paid $14, some $15, and some $18 a month — amounting to about $120. After the hands were driven away, we used Peffer’s ore and mountain. We had not used any mountain ore that blast, till the hands were driven away. The valley ore and Peffer’s ore would make about 25 per cent, more iron with the same quantity of coal than the mountain ore alone. The loss to General Miller at the furnace, by being deprived of this bank, in being compelled to use mountain ore, would be about 6 or 6 J tons of pig metal — pig metal was worth about $24 or $25 a ton. Forged pigs sell more readily than foundry.
    “ Cross-examined. — There were but two loads of ore taken from this bank in 1845 — one load on Saturday, 2d of August, and another on Monday, the 4th, and none before or after. This thing happened on the 5th.

      “ In chief. — Tools and loss of stock about $23. The furnace was stopped two weeks for want of ore — would make twenty tons of iron a week. Started on the 17th of July, and on the 11th of October, 1845, stopped again — blowed again the 3d of November, and blowed out. on the 8th of December, 1845.

      “ Cross-examined. — Thinks General Miller had made a blast of three months without stopping up before that. There would not have been any necessity to stop for ore if this had not happened, from what they said of the vein.”
    The defendant then proved, that in the fall of 1844 Miller was very anxious aboxxt the presidential election, as he believed that if Polk were elected, the tariff would be reduced so loxv that he could not live under it; that he said repeatedly, if the tariff of 1842 should be repealed, he would sell off his stock, get his horses off his hands, and never start the iron business again; that after the election, he said repeatedly that he xvould quit the business; that on the 29th of January, 1844, he held a vendue, sold a good many horses, a number of wagons, a great many stoves, ploughs, &c. He did not sell any of his good wagons, nor did he sell his furnace tools. He said he kept a few of his horses, which James, his son, was to have for farming; and that he would never blow in his tenace again. The mining was stopped for some time during that winter. The hands at the ore-banks and the wood-choppers were stopped for a while; but commenced again in February, 1845. Hands not all discharged. Miller started again in July, 1845, when he bought some horses and hired some teams. The wood-choppers commenced cutting wood in about three or four weeks after the sale.
    The plaintiff’s counsel requested the court to charge the jury upon the following points :—
    1st. That if the jury believe that Johnston Moore made a contract with General Miller that the latter should dig ore out of Moore’s bank, and pay Moore fifty cents a load for the ore so dug; and that, in pursuance of that agreement, Miller, with the consent of Moore, erected two cabins on the land for his hands; took possession of and opened the bank, dug ore, and settled for it with Moore at the stipulated price; that these facts, in the construction of the law, would amount to a lease, not determinable at the will of either party before the end of the current year.
    2d. That much more would this be so, if the jury believe that, in addition to the facts stated in the first point, that Moore agreed that Miller should have the ore of said bank, as much as he wanted, and as long as he wanted.
    3d. That even if the jury believe that Miller contemplated stopping the operations of his furnace, at the time of his sale, in 1845; yet, if he began cutting wood for furnace purposes some few weeks after, started his furnace on the 11th July next .succeeding, set hands to work at the ore-bank, and settled with Moore at 50’ cents a load, for some two or three loads of the ore that was dug after the starting of the furnace, on the said 11th of July, that this would amount to a recognition of a subsisting tenancy of the' ore-bank by Johnston Moore, and a re-establishment of the same.
    The defendant’s counsel requested the court to charge the jury upon the following points:—
    1st. If the contract between Thomas C. Miller and Johnston Moore was as proved by Levi and Jacob Trego, the plaintiff’s witnesses, it created no such tenure, estate, or term in Thomas O. Miller, as Johnston Moore could not-terminate at his will; and if the plaintiff’s cause of action depends upon the contract as proved by those witnesses, he is not entitled to recover in this action.
    2d. That in the absence of proof, there is no implication arises in law that the plaintiff ivas to hold and enjoy the privilege of talcing ore for a year, from year to year, or any other determinate period; and in the absence of proof fixing a term or definite period, the plaintiff cannot recover in this action.
    3d. That if the jury should believe all the testimony of John McKinney as to the conversation between Miller and Moore, and the contract then alleged to have been made, and should believe all the testimony of Thomas Hunt as to what Mr. Moore said, and all other evidence in the cause that would not in law establish any tenure, estate, or term, in Thomas O. Miller, by virtue of which he was entitled to hold possession of the oie-bank and premises described in the pleadings against the will of Johnston Moore; and the expulsion of the plaintiff’s workmen under such circumstances, would not entitle him to maintain this action of trespass guare clausum fregit.

    4th. If the jury believe that the plaintiff, in the fall of 1844, stopped all operations at his furnace, declared his determination to carry on the business no longer, and sold out all his stock except what he retained for farming purposes, and left the ore-bank, with all his workmen, he could not, under all the evidence in this cause of his agreement with Johnston Moore, afterwards, in the following August, take and hold possession of the ore-bank and lands, as described in the pleadings, against the defendant’s will; and having taken possession thereof without his knowledge, he had a right to expel him, and therefore the plaintiff cannot recover.
    5th. That the plaintiff has failed to prove the facts as set out in his pleading, and therefore he cannot recover, and the vercjict should be for the defendant.
    6th. If the jury believe that at the time the account between Johnston Moore and Thomas C. Miller was settled, the former expressly denied the right of the latter to take ore out of the bank at that time, and declared that he would go immediately and turn his workmen out; that the plaintiff replied that he would have to break his bones, if he was there, before he should do it; and that the account was not paid, nor anything more done about it: these facts are not such as can be construed into a recognition or renewal of the plaintiff’s alleged right.
    The court then instructed the jury thus:—

      “ The first question for your determination under the evidence, is, was there any such lease made between the plaintiff and the defendant, as contended for by the former ? The one asserts it, and the other denies it, in the different propositions which we are requested to instruct you upon as matters of law.
    “ If you find a lease was made, then your second inquiry will be, as to the amount of damages you think the plaintiff entitled to. If no lease were made, then of course the plaintiff fails; he will have no footing in court, and the defendant will be entitled to your verdict.

      “ Answers to defendant’s points: 1st. The contract, as stated by Levi and Jacob Trego, alone would not create such an estate or tenure in General Miller as that Moore could not terminate it at his will. And the case resting alone upon the testimony of those two witnesses, we instruct you as requested. But you must determine from the whole testimony in the canse, whether the lease or contract as contended for, was made between these parties, and not from detached portions of it. The Tregos tell you what they heard; other witnesses speak of what they know and heard; and it is from the whole you will say, whether this contract to lease this ore-bank to the plaintiff was made or not.
    “2d. The first branch of this point is true, and the latter one is also true, as qualified by my answer to the defendant’s first point.
    “3d. We cannot instruct you as requested in this point.
    “4th. The stopping of his furnace by the plaintiff, and other circumstances alleged in this point, if the determination of General Miller alluded to was never communicated to Johnston Moore, would not have the legal effect contended for by the defendant; and particularly so, if the jury are satisfied from the evidence that the furnace was stopped and operations suspended for the short time alleged to have been by the plaintiff, in a portion of his third point — which I will now read, so far as it relates to this particular inquiry.
    “ 5th. As a question of law exclusively, we cannot give you the instructions desired in this point.
    “ 6th. This is true if you find the facts to be as stated.
    “Plaintiff’s 1st and 2d points. If you are satisfied from the whole evidence in the cause, that Moore did make a contract with Miller, as stated in these two points, we instruct you as requested.
    “ Plaintiff’s 3d point. This point, and the sixth of the defendant, give us the legal views of these parties in reference to the facts which they embody; and if you are satisfied the facts are as stated by the defendant, they could not be construed into a renewal of the plaintiff’s alleged right to take this ore. But you will also remember that we have already said, if you were satisfied from the whole evidence in the cause that Moore did make a contract with Miller, as is alleged by the plaintiff in his first and second points, that in law would amount to a lease, not determinable at the will of either party before the end of the current year. The lease, then, if one was made (of which you alone will judge), was not made until the latter part of August, 1844. The current year, then, would bring the time up until the latter part of August, 1845, and this alleged trespass (if one was committed, of which also you alone will judge,) was committed on the 5th day of August, 1845, so that no renewal of the lease or contract would be necessary to entitle the plaintiff to hold for the year under which he entered.
    “ It is for you then to say how this matter is. Was there such a contract made between these parties as the plaintiff alleges there was ? If there was, did the defendant forcibly expel the plaintiff’s hands, &c., as is contended for by him ? If these things are so, then he is entitled 'to such damages as you are satisfied he has sustained by reason of it. On the other hand, if no such contract or lease was made of this ore-bank to the plaintiff — or no trespass committed — then the plaintiff fails, and your verdict should be for the defendant.”
    Charge excepted to by the defendant.
    The jury found a verdict for the plaintiff. The defendant sued out this writ, and assigned the following errors here.
    1. The court erred in their answers to the defendant’s second, third, fourth, fifth, and sixth points.
    2. There was error in the answers of the court to the plaintiff’s points.

      JReed and Watts, for plaintiff in error.
    There was error in the affirmative answers of the court to the first and second points of Miller, the plaintiff below. The issue was, whether there was a specific demise for one year; and the plaintiff was bound to prove this fact, before he could recover. Demise a'technical word, and means a lease for a year, or years. To constitute a lease, it must have a certain commencement, and a certain termination, either expressly, or by reference to something expressed so as to render it certain: 2 Shep. Touch. 70, 31; Law Lib. 3, 4, 7, 9. All leases for uncertain terms, arz primd facie leases at will. It is the reservation of an annual rent, which turns them into leases from year to year: 2 Wm. Black. R. 1173. A mere general letting, or a letting as long as the parties please, is a lease at will: Richardson v. Langridge, 4 Taunt. R. 128; 4 Bac. Abr. 178, 181. In this case, it was a more license to enter and take ore, or at most a lease at will. In either aspect, Moore had a right to take and hold possession by force: Overdeer v. Lewis, 1 W. & S. 90; 4 Kent’s Com.‘113. Nothing in the supposed agreement indicating any length of time the license was to continue, and there was nothing to which it could be referred to render the period certain. An annual rent indicates the term of one year. A lease for the purpose of farming, or for any other purpose where there is an annual return made, constitutes by implication a term for a year. But, in these respects, a lease or agreement is to be construed according to its character. A general letting for raising liquorice or madder (to raise which .requires two years), may be implied to- be for two years : 2 Wm. Black. Rep. 1171; Chit, on Con. 322, in note. In letting lodgings, no implication of a demise from year to year, or for any specific time. A mere license to use land, is not within the statute of frauds, because it passes no interest in the land: 7 N. Hamp. R. 237 ; 16 Pick. 273; Chit, on Con. 240. A sale of potatoes in the ground, growing, with the right to take them away, only gives an easement to go on the land ; it passes no interest to the land, and trespass will not lie: 11 East Rep. 362. In Anderson’s Appeal, 3 Barr, 218, the term was construed from the character and subject of the lease. The plaintiff, therefore, on the trial, did not establish the issue on his part, directly, by proof; nor did he establish any facts from which any term for one year could be implied. The court, therefore, erred in deciding otherwise. Proof must correspond with the issue. An allegation that a defendant held premises as tenant for a term of years, or from year to year, is not made out by proof that he held by the quarter: Wilkinson v. Hall, 3 Bing. 506.; 3 Eng. C.'L. R. 226. The license, or lease at will, was suspended, and never renewed again by Moore. They also cited Watson v. O’Hern, 6 Watts, 362; Esp. N. P. 460.
    Biddle, contrá.
    Demises of land made without limitation as to time, by old authorities mere estates at will. But estates so precarious, and so generally prejudicial to the interests of agriculture, have long been looked upon with increasing strictness; and it is now clearly settled, that when the relation of landlord and tenant is created without any limitation as to time, such tenancy shall be a tenancy from year to year, not determinable at the will of either party, nor even at the end of the current year, without a notice to quit regularly served: 6 Law Lib. 7, 8; Chit, on Con. 319, 320.
    Although the statute of frauds enacts, that all leases for more than three years by parol shall have the effect of estates at will, yet such a lease is held to be a tenancy from year to year: 6 Law Lib. '8; Chit, on Con. 319. A general hiring of a clerk is construed to be a hiring for a year, and from year to year, as the parties respectively please: Chit, on Con. 57, 58.
    If a license is granted to a man to use my ground or my yard, he thereby has an interest in it, so that the license is not revocable,- but it amounts to a lease at will; and this seemed to be the opinion of the court; and that he thereby had such a possession as not to be turned out by a revocation, but by an ejectment: 11 Mod. R. 42.
    Recognises doctrine in Comyn, and also on the subject of leases implied from a variety of circumstances: Chit, on Con. 257. It is not necessary that money should be reserved; any other thing of which the value may be ascertained, will serve equally well; as upon a demise of lands, a portion of the ore produced: 6 Law Lib. 90,160. As to uncertainty of rent, see Fry v. Jones, 2 Rawde, 12. Here fifty cents a load for the ore taken, can be made certain: Lesley and another v. Randolph, 4 Rawle, 126; 3 Wilson, 26; Watson v. O’Hern, 6 Watts, 362, 368.
    Then in this case Moore agreed that Miller should open the ore-bank and have the ore as long as he pleased at fifty cents, and put up cabins. The rent was certain — by the load fifty cents. If Miller did not work it, Moore had his action, as shown by Watson v. O’Hern, bottom of page 369.
    As to confirming lease by accepting rent: Chit, on Con. 258-260; Shaw v. Turnpike, 3 P. R. 445. If a party to a contract be delinquent, the other party may take advantage of the omission by declaring the contract at an end; but if he treat it as still subsisting, he thereby waives the consequences of such default. A person having exclusive right of digging turves or coals may support tres. qu. elau.fregit: 1 Chit. PL 175.

      June 8.
   Coulter, J.

In estimating the language which constitutes a lease, the form of words used is of no consequence. It is not necessary that the term lease should be used. Whatever is equivalent will be equally available. If the words assume the form of a license, covenant, or agreement, and the other requisites of a lease are present, they will be sufficient: Co. Litt. 45 b; Bac. Abr. tit. Lease, K.

An agreement that Miller should enter and dig for ore, build houses, &c., he to pay, as a compensation to the owner of the land, fifty cents a ton for every ton of ore, was, in substance and fact, a lease. But whether it was only a tenancy at will, or constituted a lease for a year, was a question of fact to be determined from the evidence; and as the evidence was in pais, and the alleged lease by parol, it was a fact properly referable to the jury. If the lease had been in writing, the construction would have been for the court. But there was evidence on both sides in relation to the alleged contract; the court were therefore not bound to take it from the jury. It was their province to instruct the jury what constituted a lease for a year, and what established only a tenancy at will.

Many questions are so complicated by matters of law and fact closely blended, that they must of necessity be submitted to the jury, the court giving them proper legal instruction.

In answer to the defendant’s first point, the court tell the jury that the lease or contract as sworn to by the two witnesses therein named, did not create such a tenancy or term in Miller as Moore could not determine at will; but they added that the jury must determine from the whole testimony in the cause, and in this there was certainly no error. The counsel allege that the answer contained no definite instruction. It was, however, precisely adapted to the question put to the court. ,x

The court affirmed the second proposition of the defendant, which gave this large instruction to the jury — “ that in the absence of proof there is no implication arises in the law that the plaintiff below (Miller) Ayas to hold and enjoy the privilege of taking ore for a year — from year to year — or any other determinate period; and in the absence of proof fixing a term or definite period, the plaintiff cannot recover in this action.” The court add, “that the answer must have the same qualification as that contained in their answer to the first point of the defendant,” that is, that the jury must look for the proof to the whole eAÚdence in the cause. I am unable to perceive any error in this answer. It gives the instruction prayed for; and certainly the jury must regard the whole evidence admitted and received, because that is their sworn duty. The court cannot, by its instructions, withdraw from the jury or limit the determination of facts which are to be ascertained and influenced by other facts proved in the cause: 5 Monroe, 280; 5 Porter, 215.

The court refuse to give the instructions prayed for in the defendant’s third point. This was right and proper. There Avas considerable testimony on both sides, and the defendant in this point prayed the court to instruct the jury, that if they believed the testimony of Hunt and McKinney, and all other testimony in the cause, the plaintiff below could not maintain the action. The point proposed necessarily admits and implies that certain facts are to be proved, and invokes the court to decide not merely on the sufficiency of those facts, but also on all inferences and presumptions Avhich a jury might draw from them. But this is not the province of the court. The leading fact may be presumed or inferred from other facts proved; and that is the province of the jury. Thus it has been ruled, that if the evidence only shows facts from which the main, fact may be inferred or presumed by the jury, the case ought to be left to the jury, with proper legal instructions: Lindsay v. Lindsay, 11 Vermont, 621. The main fact here was the period or limitation of the license, agreement, or lease, if any; and that might be inferred or presumed from other .facts. There was not only opposing testimony, but in some respects conflicting testimony. In all aspects, therefore, it was proper to submit the case to the jury. We see no error in the instructions which accompanied that submission. The court are not bound to withdraw a case from the jury at the request of either party, when there is anything in it legitimately referable to them. Where the evidence is clearly insufficient, it is not error, however, if the court choose so to instruct them. But by the tenor of our own decided cases, it is error to withdraw a case from the jury when there is any matter which ought to be left to them; and I am quite free to say, that if the court below had given the instruction prayed for on this point, we would have been compelled to reverse the judgment at the instance of the other party, because it would have withdrawn from the jury what he had a right to demand should be decided by them.

The defendant’s fourth point is identical in character with the third, inasmuch as it requires the court to decide the cause, and give a binding instruction to the jury, from certain specified evidence, and all the evidence in the cause. This is a case where the evidence was of such a nature as to require its submission to a jury. It had elements in it which ought to be disposed of by them. The court would have been perfectly warranted, therefore, in merely declining to answer affirmatively. But they answer with such qualification and reference to the proof in the cause, as to do justice to both parties. In point of law there is nothing erroneous in the answer.

The fifth point merely iterates the third and fourth, by requiring the court to instruct the jury that the ■ plaintiff had no right to recover, from the evidence. The court thought proper to decline giving the instruction, under the circumstances of the case; and, in this, there was no error.

The court instructs the jury that the defendant’s sixth point is true, if they find the facts as stated in it. I cannot perceive why the defendant complained, or that he had any right to complain, of this instruction. The court put the case very fairly to the jury, both in the second and concluding paragraphs of their charge, upon the question whether the plaintiff had proved a lease such as he alleged in his pleading, to wit, a lease for a year; and as to what constituted such lease or tenure, they instruct the jury ip the very language which the defendant requested them to employ. The court seem to have fulfilled all the exigencies of the case, viewing as well the rights of the one party as the other.

Judgment affirmed.


author: Per Curiam.

text:
    McGuire v. Adams.
    An offer to pay a debt, and the refusal of the creditor to receive the same, followed by repeated declarations on the part of the creditor, a stepmother, that she never intended to collect it from the debtor, as he had made the money for her; and that if not paid in her lifetime, it was to be his: Held, that although the debt was not paid in the lifetime of the creditor, the refusal to receive payment when offered, and the subsequent declarations, were but evidence of an unexecuted intention to discharge the debt, and that the debt was not thereby discharged.
    In error to the Common Pleas of Cumberland county.

      June 5. .Abraham Adams, the defendant in error, who was plaintiff below, in his statement filed, claimed to recover the sum of $96.62-J from James McGuire, administrator of Hetty Adams, for the board of, and attendance upon the said Hetty in her lifetime, and for taking care of and keeping her stock on the farm, after her death, and for the expenses of her funeral. The defendant pleaded non assumpsit, payment, and set-off. The plaintiff replied non solvit and no set-off. On the trial, before Hepburn, P. J., the plaintiff called witnesses who testified, to some extent, to the boarding of the defendant’s intestate and keeping her stock, which consisted only of a horse and two cows. The defendant then, under Ms plea of set-off, gave in evidence a promissory note, dated April 1st, 1845, given by plaintiff to defendant’s intestate, for $300. On this note credits to the amount of $223.75 were endorsed, which left, on 7th April, 1846, a balance of $92.25 due and unpaid on the note.
    The plaintiff then proved, by a witness, that he had called upon defendant’s intestate, who was his stepmother, some months previously to her death, and offered to pay her the balance remaining due and unpaid on the note, for the purpose of stopping the interest, and that she refused to receive it; and that she subsequently told the witness that she never intended_to collect the money due on the note from the plaintiff; that he had made the money for her, and if not paid in her lifetime, it was to he his.
    Another witness testified, that on two occasions, and a short time previously to her last sickness, the defendant’s intestate had told her, that if plaintiff had not paid this note at her death, it was to be his. The note was not paid in the lifetime of the intestate.
    The defendant then requested the court to charge the jury upon the following points :—
    1. That the note of Abraham Adams to Hetty Adams, of the 1st April, 1845, to the amount of the balance due upon it, given in evidence by the defendant under his plea of set-off, can only be defeated by evidence of its payment, or a release of it, founded on a good or valuable consideration. That the conversation between Hetty Adams, in her lifetime, and Abraham Adams, the witness; or that between her and Agnes Adams, another witness, not communicated to the defendant till long after the death of Hetty Adams, and not founded upon any consideration whatever; and there being no evidence to show that she had it not fully in her power, up to the time of her death, to collect the said debt, or to dispose of the said note or debt as she pleased, by cancellation, will, or otherwise, it affords no legal reason to defeat the defendant’s set-off, and he is entitled to recover it in this action.
    2. If the jury believe the note was legally due and payable by Abraham Adams to Hetty Adams, in her lifetime, the alleged parol discharge, without consideration, does not now affect its validity or defeat its recovery.
    The court answered these points in the negative. The defendants thereupon excepted to the charge of the court; and the jury having returned a verdict for the plaintiff, sued out this writ, and assigned the answers of the court to his points, for error here.

      Watts, for plaintiff in error,
    was relieved by the court from arguing the errors assigned.

      Biddle, contri.

      June 12.
   Per Curiam.

The parol evidence in Zeigler v. Eckert was admitted to rebut a presumption that a testator did not intend to give by his will: not as a proof of an independent gift. That case belonged to a distinct class. Put the principle of the present was decided in the case of Duncan Campbell’s Estate, at the last term of the Western Circuit; in which it was held that directions to destroy certain promissory notes, or give them to the drawer in case the creditor should die before seeing him, are but evidence of an unexecuted intention to give — not of a gift itself. The principle of that case rules the present, which is not distinguishable from it.

Judgment reversed, and a venire de novo awarded.


text:
    Keller’s Appeal.
    Administrator not chargeable for not immediately suing a note held by decedent, where the drawer continued in good credit.
    Appeal from the Orphans’ Court of Cumberland county.

      June 5. On a settlement of an administration account, Keller claimed credit for the loss on a note held by decedent. The note matured September, 1842. Decedent died January 3d of that year. In 1842 and 1843 payments on account were made, which reduced the note one-half. Suit was commenced in October, 1843, after an assignment for creditors by the drawer.
    The appellant proved that the drawer was in good credit up to the time of his assignment — but the court refused to allow the credit.

      Biddle, for appellant.

      Watts, contrá.

      June 20.
   Coulter, J.

The rule of accountability, as applicable to executors, administrators, guardians, and other trustees, is one of very great importance : the precise limitations of which are not, and perhaps cannot be definitely traced or defined, in their application to particular cases. Much must be left to the discretion of the courts, who will duly estimate the lights and shadows of < cases as they arise, and with careful hand adjust acknowledged principles to the case. It is peculiarly a branch of equity jurisprudence, where the conscience of the chancellor, enlightened and controlled by adjudicated precedents, is the umpire. This I may say, however, that a court of chancery always deals with great tenderness towards a trustee acting in good faith.

A striking lineament in the case under consideration is, that the administrator did not give a new and original credit to Martin Miley. He found the bond among the decedent’s papers, and it had been due something over four months before decedent’s death. Saxton died in January, 1842, and Miley failed in the fall of 1843, the precise date not stated on the paper-book. During the interval, no change of circumstances, or new posture of the obligor’s affairs occurred, to put the administrator on greater vigilance than had been observed by the deceased in his lifetime. The obligor, during the year, made considerable payments on the bond, amounting to $291, nearly one-half. Miley’s credit continued perfectly good until his failure, which produced general surprise in the neighbourhood. Every witness called testifies to this fact. And they all say they would have trusted him for a larger sum up till the time of his failure; and he was indebted to four of them for much larger sums.

It is not pretended that the administrator acted otherwise than with honesty of purpose. The worst that can be said, is, that it was an error in judgment on the part of the accountant; and that he had not a keener vision into the vicissitudes of fortune, than all the rest of the people in his neighbourhood. A distinction is taken in our books between cases where the administrator has money in his hands, or property of the estate, and loans or sells it; and cases where a security comes into his hands for collection. In the former case, a more rigid accountability is created; because he parts with that which is already in his hands, and secure to the estate; and ought, therefore, to look more closely into the circumstances of those on whose credit he parts with it.

The administrator in this case is entitled to the benefit of this distinction, because he only continued a confidence already reposed in the obligor, by the decedent. A slumbering credulity, or careless indifference, on the part of a trustee, the law will not tolerate. He must do as a prudent man, under like circumstances, might do in his own case. The most stringent of our own cases require that the administrator should be guilty of gross negligence in order to charge him: 9 W. & S. 108. -We cannot say that the administrator in this case was guilty of gross negligence.

• It must be borne in mind that the office of administrator, executor, and guardian, is one of the highest and most absolute necessity in society; and in a great majority of cases is undertaken more out of kindness and duty, than with any hope or expectation of. emolument, and is attended in its faithful discharge with trouble, anxiety, and hazard.

In the case of Knight v. Earl of Plymouth, 3 Atk. 480, Lord Hardwick observes: “ If there is nothing wilful in the conduct of the trustee, no mala fides, the court will always favour him. To subject him to losses which he could not foresee, would be manifest hardship, and would be deterring every one from accepting such an office.” We think the administrator in this case was in the exercise of ordinary care and prudence, and was not guilty of gross negligence, and therefore he ought not to be charged with the $339.56, the balance of Martin Miley’s note, which he prayed credit for' in his account; and that the decree of the Orphans’ Court, striking out that credit from his account, was error.

It is, therefore, so far reversed; and it is ordered that the court below reform the account accordingly.

Decree reversed; account to be reformed as above.


text:
    McFait’s Appeal.
    Devise of land, on condition tlie devisee pays debts and legacies, creates a charge in exoneration of the personalty bequeathed, though the devisee refuses to accept the devise.
    Testamentary charge of all my debts due at the time of my decease, includes debts then owing, though not yet payable.

      June 5. Testatrix, by her will, made in 1843, after directing her funeral expenses to be defrayed out of her “estate,” devised certain land to Culbertson, “ under the condition he pay all my legal debts due at the time of my decease.” She then bequeathed $1,000 to Mary Kozier, payable in one and two years after the payment of debts. She also gave her all her personal property not thereinafter specifically bequeathed. To Mrs. McEait (who died about three years before the date of the will) $600, to be paid one year after payment of the legacy to Mary Kozier; to Culbertson $10, payable one year after the legacy to Mrs. McEait.
    Testatrix died some time in 1843, indebted among other things on two bonds, falling due after her decease. Culbertson refused to accept the land devised to him.
    The proceeds of the real estate, after deducting the expenses of the sale and the debts, were less than the legacy given to Mary Kozier — but if the debts not due at testatrix’s death were excluded, the proceeds exceeded the amount of the other debts and legacies.
    The court below stated the account, mingling the proceeds of the real and personal estate, which resulted in a balance for distribution of $2,041.08, which was directed to be paid to Mary Kozier and Culbertson, “ in the proportions which the legacy to Culbertson bore to the whole estate.”
    The heirs of testatrix contended that only the legacies were payable out of the land, and that the debts not due at the time of testatrix’s death, were not chargeable thereon, but were payable out of the personalty, and that the surplus of the real estate should be distributed among them.

      Biddle, for appellant.
    The charge is only of debts due “ at the time of my deceaseif then debts not yet matured are included, of what effect are these words of desertion, and the court is bound to give them effect: Ward on Leg. 194-5; 2 Miles, 412. This view is strengthened by considering that the personalty, which is the primary fund, is not exonerated by this charge unless there are express words of exoneration: 2 Yern. 48; 3 Atk. 201; 1 Cox, 1;'ll Yez. 186; 18 lb. 132; 9 lb. 447; 4 lb. 816 ; 3 lb. Ill; 2 Yern. 120 ; 2 Sch. & Lef. 538; 1 Ball & B. 312. The legacy to Mrs. McFait having lapsed, merged for the benefit of the heirs, and they are entitled to the proceeds of the land, after payment of the legacies charged thereon.

      Watts, contó.
    The inclination of the Pennsylvania decisions is to favour charges of legacies and debts on the land; and this may be done by mere words of implication: 1 Bawle, 336; 3 Penn. 533; 7 W. & S. 407. Here there is an express charge by the words of the will; 1 Bop. 325; 1 Atk. 382; 1 Yes. 135; 7 Cow. 71. By the specific devise over of all the personalty, the charge on the land is in exoneration of the otherwise primary fund. The argument on the other side creates an intestacy, though by the plain words all the estate was devised.

      June 12.
   Coulter, J.

The testatrix directed the divisee of her real estate to pay “ all her legal debts due at the time of her decease;” and the first question raised and argued here was, whether certain bonds, not payable at the time of her death, nor until some time afterwards, were included ? The will is dated 16th of February, 1843, and proved the 6th of March, 1843. The exact time of her death is not stated. The first disputed bond was payable the 1st of April, 1843, and the other in April, 1845.

The testatrix, at the time she made her will, could not have known the time of her death. There is no evidence to show whether her health was bad or otherwise. She might, therefore, have lived until both bonds were payable, and until new debts were incurred. The most natural interpretation of the language is, that she meant that the devisee of the land should pay all the , debts she owed at the time of her death. It would be drawing too nice a distinction to suppose that the testatrix intended to discriminate between debts owing and payable at the time of her death, and those owing, but not payable. It is quite common to provide in wills for the payment of all just debts due by the testator ; in which phraseology is generally understood to be included all just debts owing by the decedent. The true meaning of anything due, is, that it is owed — legally binding — what the law requires to be done. Even in legal phraseology, the bonds not payable at the death would be included, on the principle of deiitum in presentí, solvendum in futuro. The propriety of this construction is more apparent from the fact that the testatrix devised all her personal property to other persons. We are of opinion, therefore, that all the debts owing at the time of her death were included.

Another question was raised and argued, and on which the opinion of the court has been so formed, that it over-rides the other question in its practical application. We are of opinion that all the debts, as well as the legacies, were charged on the land devised as the primary fund. She devises the land to her brother, John Culbertson, “under condition, however, that the said Culbertson shall pay all my legal debts due at the time of my decease.” It was contended by counsel, that this created an estate upon condition. But I apprehend not; such construction would defeat the whole will and the obvious intent of the testator. In that event, the heir would enter for condition broken, as John Culbertson did hot take the land, for what reason does not appear, and the court ordered it to be sold for the payment of the debts. The legacies would be principally unpaid, that is, the money legacies, and the legatee of the personal estate get little or nothing; for it would be principally consumed in the payment of debts — thus overturning the whole will. The debts and legacies were charged upon the land, as we think; and whether Culbertson took it or not, it was the fund out of which they were to be paid, according to the express intent of the testatrix, as well as by legal intendment. The nse of the words “under condition” do not control the evident intent of the testatrix. In Wigg v. Wigg, 1 Atk. 382, the testator devised real estate to his son, updn condition that he or his heirs paid to six grandchildren £90, to whom were given power of entry and distress for non-payment. The son died before testator, and consequently the devise of the land lapsed. But the question was, whether the charge of the £90 existed: and Lord Hardwick decided in the affirmative, and directed the land to be sold for the payment of the legatees. That is a case much stronger in its features than the present. In order to exonerate personal estate from the payment of debts, there must be either express words or a plain intention, as it is the primary fund. But the intention may be found, not only in the mode in which the personal estate is given, but also in the manner of the devise of the real estate. The real estate may be so appropriated to the payment of debts and legacies, as to show a clear intention that they shall not be a burthen on any other fund, although the personal estate is not expressly exempted: 11 Ves. 185 ; 7 S. & R. 407.

The intent of the testatrix is clear — that she intended to charge the land with the payment of the debts and legacies, as well by the express words of the devise, as by specifically giving all her personal property, in juxtaposition with that direction, to Mary Kozier. The order of distribution of the fund in court will be to appropriate the proceeds of the land, after deducting expenses of sale, to the payment of the debts and legacies to Mary Kozier, which will consume the whole, and a few dollars over; and all the fund produced by the personal property to Mary Kozier. The court below mingled the personal fund and that produced by the sale of the real estate in their calculation; but the result is the same as the estate and the different legatees stand, as Mrs. McFait and Andrew Culbertson are to get nothing until after Mary Kozier is paid. The court, however, in their decree, determine the legacy of Andrew Culbertson, amounting to $ 10, shall be paid in the proportion it bears to the whole fund, compared with Mary Kozier’s legacy of $1,000. This was a mistake, no doubt, as Culbertson was not to be paid until after Mrs. McFait, and she was not to be paid until one year after Mary Kozier’s legacy was paid, which will absorb the whole fund; but the amount that Culbertson will receive under the decree is so exceedingly small, that on the principle of de minimis non curat, it is not worth correcting the decree.

Decree affirmed.


text:
    Sanderson v. Haverstick.
    Trover lies for timber out by a stranger on the land of plaintiff, though -within the lines of a public road, laid out and approved by the court.
    The cutting of the timber, without more, is a conversion.
    In error from the Common Pleas of Cumberland county.

      June 6. Haverstick brought an action of trover for certain trees, and, on the trial,’proved that defendant cut them, and piled the wood and rails on the land, but they had never been removed..
    The defendant proved that the timber stood within the lines of a public road, laid out by viewers over plaintiff’s land, and approved by the court, though the road, as actually opened, did. not include the timber.
    The court (Hepburn, P. J.) instructed the jury that when a public road passes over land, the public acquires but an easement; the right to the soil, and whatever grows on the land, remains unchanged : Roll. Abr. tit. Qhemin Private, 392, B, pi. 1, 2; 6 Pet. 492; 15 Johns.; 1 Yeat. 169 ; 1 Burr, 143; 1 Barr,- 337; hence trespass would lie for depositing rails on a highway; that if the defence were specially pleaded, it would be necessary to set forth that the place was a highway, and the defendant had a right to pass, and if damage was done, by cattle, to corn growing, it was by stealth and morsels, and not with the will of defendant: 2 Chit. PI. 598. In this case, the road was not actually opened over this part of the -land, nor were the trees cut because they obstructed the defendant’s passage. That the exercise of the light of dominion over them by defendant, was a sufficient conversion; 6 Bac. Abr. 677 ; 7 Johns. 258 ; 10 lb. 172 ; 5 Cow. 323. That under the 3d sec. act of 1824, knowledge that it was on the land of another was immaterial in this action.

      Watts, for plaintiff in error,
    contended the action must be under the act of 1824, in which guilty knowledge was an essential ingredient.

      Graullagher, contrá.
   Per Curiam.

Bet the judgment be affirmed, for the reasons given by the court below.

Affirmed.


author: Rogers, J.

text:
    Commonwealth to use v. McIntire.
    Though a sheriff’s sale for the debt of the ancestor discharges lands held by an heir under proceedings in partition, from the lien of recognisances given to secure the other heirs their shares of the valuation: yet the debt thereby secured is not wholly discharged, if the amount due on the recognisance was more than sufficient to pay the debts of the ancestor for which the land was liable. And in such case the accepting heir is not entitled to participate in the surplus arising from the sheriff’s sale, which is insufficient to pay the amount secured by the recognisance.
    In error from the Common Pleas of Perry county.
    The question in this case was, whether McIntire, who was summoned as garnishee in an attachment of execution,' had any funds in his hands liable thereto.
    The facts were these: — James Morrison died seised of lands of which partition was made in the Orphans’ Court. The heirs were three sons and six' daughters. The land was appraised in three parcels at $8,144; and in 1841 one parcel was taken by each son, who entered into recognisances to pay the other heirs their several proportions of the valuation. In 1842 judgment was entered by confession by the three sons on one of the recognisances to secure a share to their sister, the wife of the present plaintiff.
    One of the sons settled an administration account in 1842, showing a balance in his hands of $1,293.41, which had never been disposed of.
    In 1844 a sheriff’s sale was made of the land, under a judgment recovered against James Morrison in his lifetime. The purchase-money was $3,110, which was applied to the payment of liens against James Morrison’s estate, and the balance, $789, paid over to his administrator de bonis non, the present garnishee. He settled an account, showing a balance in his hands of $903.
    The plaintiff then issued this attachment on his judgment above mentioned, and the question was whether any part of this fund belonged to the sons of James Morrison, the defendants in that judgment. '
    The plaintiff also proved that the sons had entered under the partition, and received the profits of the land until 1845.
    The court told the jury, the sheriff’s sale discharged the liens and the recognisances, and the sons were entitled, with their sisters, to share in the surplus. But that the circumstances in evidence, the brothers being largely indebted to the sisters, prevented them receiving the money; and that they were entitled to a credit on their recognisance, for so much as had been received thereon; and that the plaintiff was entitled only to an equal share with his wife’s sisters, of the fund.

      Oasey, for plaintiff in error.
    The sheriff’s sale discharged the recognisances, as well the liens as the debts, excepting that one which had been prosecuted to judgment by the plaintiff in error: Franks v. Groff, 14 S. & R. 181. It is immaterial that the recognisors had funds in their hands; it was equally the duty of all the heirs to discharge the paramount encumbrances. It was supposed by the court, that the recognisances effected an equitable appropriation of this fund; but such a contract could only exist after the sale, and that taking away the consideration, no such contract could be implied.

      Watts, contó.
    There is no error of which the plaintiff can complain. His true remedy was in the Orphan's’ Court. For this fund did not belong to the defendants in the judgment, by whose wrong the land has been sold.

      June 8.

   Rogers, J.

Although the sheriff’s sale of the property under the judgment obtained against the estate of James Morrison in his lifetime divested the. lien of the recognisances in the hands of the purchaser, yet under the circumstances disclosed by the evidence, the sale did not extinguish the debt, inasmuch as the recognisors had ample funds in their hands, which it was their duty to apply to the payment of the judgment. One of the recognisors, who was the administrator of James Morrison, had in his possession upwards of $1,200 of personal property belonging to the estate. The recognisors, who were the three sons of the intestate, were in the possession of the land taken by them at the appraisement upwards of five years: received the rents, issues, and profits thereof, and moreover, were indebted on the recognisances upwards of $8,000, much more than enough to pay every debt, including the judgment against the estate. That the land taken by the sons, therefore, was sold, was not the fault of the other heirs, but it arose from their own neglect in not paying the debts. From this it follows that the recognisors. are entitled only to a remedy on the recognisance, as against the recognisors and their property, and as there was nothing belonging to them in the hands of Mclntire, who was the administrator de honis non, there was nothing which could be attached. The plaintiff in error and plaintiff below is in this dilemma. If the recognisance on which suit is brought is discharged by the sheriff’s sale, as seems to have been the opinion of the court, then this suit is improperly brought; for certainly no suit will lie on a void recognisance. But if not discharged, which is the better opinion, and the debt remains, although the lien is gone, the recognisors beyond all question have already received more than their share of the estate. They are entitled to none of the money in the hands of the garnishee; and consequently, there is nothing to attach. But in this suit the plaintiff has recovered more than $50, a judgment more favourable than he had any right to expect; for in truth, he is entitled to nothing in this action. There is now in the hands of the administrator de bonis non and garnishee only about the sum of $900, which must be distributed among the other heirs, the three sons having already received more than their share of the estate. As then no injury has been done to the plaintiffs in error, the judgment must be affirmed.

Judgment affirmed.