author: Ross, J.

text:
    JOHN McLANAHAN and MICHAEL McLANAHAN, surviving executors of JOHN McLANAHAN, deceased, with notice to terre tenants against JOHN WYANT administrator of ELIZABETH McLANAHAN.
    IN ERROR.
    A, devised his lands charged with certain legacies to B, C, and D, who made partition of the same among themselves.' jHeld: that the legacies which before the partition were charged on the whole land ceased to be a lien on the respective parts for more than the proportion allotted to each of the devisees.
    The fund charged is the principal, the lien is the incident and follows the principal in its division precisely in the proportion that the whole bears to any part — such proportion being chargeable after the partition only on each allottment.
    Therefore" where after partition the land of B was levied upon and sold on a judgment against him, the legatees can come in upon the fund in the hands of the sheriff only in the proportion of the land sold to the whole amount of the land charged with the legacies.
    Where one of the allotments proves inadequate to pay such proportion, it might, under particular circumstances, form an exception to the general rule.
    Writ of error to the Court of Common Fleas of Franklin county.
    This was an action brought in the Court below by the administrator of Elizabeth McLanahan, against the surviving executors of John McLanahan, with notice' to terre tenants, to recover a legacy under the will of John McLanahan, her father. By this will it was devised among other things, as follows, to wit:
    “ To my sons John, Thomas and Michael, I give and bequeath all my real and personal estate; with all the appurtenances thereto belonging, excepting such part as hereafter reserved for the remaining legatees, subjecting my land nevertheless to be liable to the several payments hereafter mentioned.” He afterwards devises to his daughters Jane, Rebecca -and Elizabeth, £250 each, together with some articles of furniture.- -
    In 1809 a writ of partition was sued out, by Thomas, one of the devisees, and after the return thereof, in the year 1811, the parties thereto, Thomas, John, and Michael, submitted the matters therein to certain referees mutually chosen, who divided the lands so devised, amongst the said Thomas, John, and Michael, which partition was confirmed by .the Court and acquiesced in by the parties.
    In April, 18-24, two hundred acres of the share of Thomas
      were levied upon by the sheriff of Franklin county* at the suit of James Riddle, Esq., for the use of A. and J. Colhoun, v. John Flanagan, administrador of Thomas McLanahan, and sold.
    (Thé foregoing statement of facts embraces all that is necessary to understand the points raised for the decision of the Court in this case; a fuller account however, together with a copy of the whole will and all the pleadings,.will befound ira Mc'LanahanY. McLanahan, 1 Penn. Rep. 98, where different points were presented.)
    The question here was whether the whole of the legacies charged by the will of John McLanahan upon the lands devised to Thomas, John, and Michael, should be taken out of the proceeds of the two hundred acres of Thomas’ share, which had been assigned to him in the partition, and sold by the Sheriff at the suit of Riddle, for the use of Colhoun: or whether Thomas’ part was liable for more than one third of the legacies, which were a-lien on all the lands devised.
    The Court below charged the jury that as soon as the sheriff’s deed was acknowledged, the land sold was discharged from the incumbrance of the legacies, and the sheriff became liable to pay them in the proportion, which the land sold bears to the whole amount of'the land devised by John McLanahan to his three sons charged with them.

      Dunlop for the plaintiffs in error.
    Judicial sales of the land divest all liens whether, general or specific, McLanahan v. McLanahan, 1 Penn. Rep. 96.
    Each part is liable for the whole without apportionment, and where a sale of a part is made, it operates to discharge the whole land from liens.

      Chambers for defendant in error.
    The testator devised his lands to his three sons, charged with pecuniary legacies; they divided them into, three parts, which were a common fund to pay the legacies charged on them — the charge by law was equal and one part ought not to bear more than its proportion. It is a doctrine yvell established that where land is charged with a burden, the charge ought to be equal, and one part should not bear more than its proportion, and equity will preserve this'equality by compelling the owner of each part to a iust contribution. Harbert’s case, 3 Co. 14. Harris v. In-gledew, fo P. JVms. 98. Stevens v. Cooper, 1 John. Ch. Rep. 430. Cheesebrough v. Millard, ib. 409. No decision or opinion can be produced to1 support the position of the plaintifi in error that all the legacies should be paid out of the fund raised by the sheriff from the sale of Thomas’ land, and that the land of the other devisees is thereby discharged, • Equity so far from compelling a creditor to resort to one part of an estate charged with a common burden, will restrain him from levyingthe whole -of his claim on one part, so far as it is ip .the power of a Court of equity to interfere. The grantee, of rent has been restrained from levying the whole rent upon one of the purchasers. 1 Eq. ■Ca. ab. 33,. I MaddocJc’s chancery, 193. Creditors have been .compelled to wait until the proportions of devisees to pay a charge on their estates was ascertained. Harris v, Ingledew, S P. Wins. 98. The plaintiffs’ omission to receive their legacy out of moneys raised by sales could not operate further to their prejudice than if they had released the land of Thomas. A release of part of the estate charged would have operated to the discharge of a proportional part of the debt.. Stevens v. Cooper, 1 John. Ch. Rep. 430. 1 Caine’s cases, 78, The judicial sales by the sheriff and administrators was not per se a payment — they ■were only a means of payment which plaintiffs might waive. Bank of Penn. v. Winger, 1 Rawle, 303. It was not for the other debtors to object to such waiver at least further than-to the discharge of one third, being the equitable proportion of that part of the common fund. As a fund or means of payment, plaintiffs are not bound-.to pursue or retain except in favour of a surety. The defendants were not sureties, but joint debtors in representing the fund devised and charged. If the plaintiffs had claimed and recovered out of ithe assets ' ef the estate of Thomas McLanahan, deceased, all their elaim, the administrators might have sustain-' cd an action against the defendants below for contribution. The defendants are not injured. The Court cannot intend that they have paid to the other legatees more than their proportions; if they had, our broad system of equitable defence might admit of an inquiry into it, and protect the defendants bv a proper .adjustment. ■
   The opinion of the Court was delivered by

Ross, J.

The question presented'to the Courtis, shall the proceeds of the sheriíí’s sale of the share of Thomas, be applied to discharge the whole, or .one third of the legacies, which were made a lien on all the lands devised to Thomas, John and Michael? In reason, and common sen.se, if 'Thomas received but one third of the land,both in quantity and quality, he should only be liable for one third of the legacies. To malee his share liable for more would be contrary to the evident-intention of tlie testator, as is manifest from his havirig'made all his land devised to his sons, equally liable. If ft be clear, that he intended to .subject all his land equally to the payment of -the legacy in -question, by wbat rule of law is the Court authorized to say that the share of Thomas shall be alone answerable? Certainly by no principle to be found in the books of reports, or elementary writers. The making partition could not render him liable, because it was what tire law would have compelled him to do at the instance of either of the tenants in common. The rights of a party shall not be affected by doing that voluntarily, which the law would have forced him to do. Infants or feme coverts cannot avoid an act done during infancy of coverture, which the law, if they had refused, would have compelled them to do. 3 Burr, 1801. Thomas then so far as appears, did nothing to render his share exclusively liable for the whole amount of the legacy. But it is urged that by modern decisions of this Court, a sale by the sheriff extinguishes all liens, and especially the lien of legacies. Without inqu'ñng how far that position is sanctioned by the cases •relied on, I wend merely remark, that so far as the decisions have gone or that subject, I feel myself bound to submit. But cer-tv' lly it h ,ts not yet been decided, that a legacy charged on land, ami ns.’, able, with interest annually, in 10 years, or at the death of A, is extinguished by a sale of the land on a judgment against a & .’isee-l-nor that a judgment which on-the face of the record is >ay\bie in ten years, is discharged by a sheriff’s sale. In the f. 'piv ,* .se. the legate would be obliged to relinquish the lien me Mod upo ' which the donor had charged the legacy, as 'a • od .■ v ff;.\ mt security; and in the latter, the judgment cr" J lose his lien although the judgment was only ■f- in ten years. Would not this Court, by such 'a de-c . .be doing tint which the legislature is prohibited from ■lo.mg? It may indeed be well questioned, how far a Court u?d • e authorized to a decision in violation of a contract, by compelling th.- judgment creditor to receive his money ten yci-r. before iris contract ¡round him to receive it; and which con-trae'., the defendant, at the time of making it, being clear of inumbrinces, had an unquestionable right to enter into. So also in ihe case of dower adju''g.'d b/ the Orphans’ Court, to remain a lien on lands taken at the appraisement, 'the same difficulties would exist. Many other cases might be suggested of a similar character, which, I apprehend* are not yet decided, a-’d which may hereafter furnish exceptions to the rule, as broad as the rule itself. These questions have been ad>-erteu to, as indicating at present, my individual impressions, and because ii-has boen contended in this case, that the Court are bound to carry the principles, which it is said, have been decided, through all the varying .cases which may arise on this branch of the law.

The question under consideration does not come within either ’Che letter or spirit of any of the decisions referred to. By the Jgai'.tifcion> the proportion of ^Thomas’ liability attached exekv sively an his share j and was discharged from any proportion of the other two thirds, which attached on the respective shares,, of John and Michael. If this position be true (and it is believed to be perfectly,consistent with the justice and equity of the case* as well as the law,) each of the three parts, after the partition, be-eamé separately liable for one third of the legacies, and no more. This is fairly dedncible from the cáse of Jackson v. Pearce, in 10 Johns. Rep. 414, 417. In that case, the Court decided, that where a mortgage is given of an undivided part or share in a large tract o.f land, and on partition, the right or share of the. mortgagor, is allotted in severalty, the mortgage will be considered as attached to the part so assigned, as the share of the mortgagor* and will cover his whole interest therein.” See Morris v. McConnachy's executors, 1 Yeates, 189. To my mind the converse of the proposition is necessarily involved in. this decision — that where land is charged with a burden, each part ought to bear no more than its due proportion of the charge; and that equity will compel each party to a j.ust contribution.,, as decided in Stevens v. Cooper. 1 Johns. Chan. Rep. 425, The Court and the bar seemed to consider the question in the ease of Jackson v. Pearce, too well settled to be controverted by any course of reasoning. The case of Stevens v. Cooper, in 1 Johns. Ch. Rep., and the authorities there cited, taken in connection with the case of Jackson v. Pearce, clearly proves that, each part or share, if equal, in value, is only liable, to be charged with one third qf the legacies,, with whicli the whole estate was encumbered by the devise. And I think it may be fairly inferred from the decision in Stevens v. Cooper, that chancery would prohibit any attempt to recover inore than a due proportion of the legacies. This inference is corroborated by the case of Hays v. Ward, 4 John. C. Rep. 134, where a creditor tqok from the maker of a promissory note, indorsed by plaintiff, a bond and mortgage, and instead of resorting to the mortgage, sued the plaintiff, and the indorser, the Court granted an injunction to stay the suit at; law, until the creditor had pursued his remedy on the mortgage. It is true, the case was decided on the rights of principal and surety, whereas the ease under review chiefly rests on the principles pf law relative to apportionment. Dike the case of principal and surety it might however, under- certain circumstances, involve the doctrine of contribution and substitution. The same principles, which I have abstracted from the-cases that have been cited, will be found on examination to exist at common law. They are-so consonant injustice and equity, as we as to the nature and fitness of things, that any code of laws would be defective without Spch provisions. If this question be tested by the common Iqyf doctrine of apportionment,' we shall find the same principles governing and controlling the rights of the parties. Whether the question be in relation to the'apportionment of a rent, condition, or partition between parceners, or tenants in common, a reference to a féw of the authorities on this subject, will, I think, be sufficient. Apportionment, says Lord Coke, signifieth a division of partition of a rent, common, &c. or making, it into parts. Co. Lit. 147, b. The definition is imperfeet. Apportionment, it is said, frequently denotes not division, but distribution, and in its ordinary technical sense, the distribution of one subject in proportion to another previously distributed* A well digested reference to the authorities on the apportionment of rent will be found in a note to the case of ex parte Smyth in 1 Swanston’s Rep. 338. If a lessor granteth part of the reversion to a stranger, the rent shall be apportioned, for the rent is incident to the reversion. So if a tenant by Knight service by his last will and testament in Writing devise the reversion of two parts of the land, the devisee shall have two parts of the rent. Co. Lit. 148, a. n. 8. and § 222-3-4:-Again, if co-parceners make partition, at full age, and unmarried, and of sane memorie, of lands in fee simple, it Is good and firme forever, albeit the values be unequal. Co. Lit. 166, a. So a partition of lands entailed between parceners, if it be equal at the time of partition, shall bind the issues in tail forever, albeit the one do aliene her part. Co. Lit. 173, a.

Each allotment fay the partition and operation of law, became the exclusive propertycof him, to whom it was assigned: and the land, on which the legacies were charged, was divided into three parts. So that the legacy, which before the partition, had been charged on the whole land, ceased to be a lien on the respective parts for more than the proportion allotted to each one of the de-visees. The fund charged was the principal, the lien was the incident, and followed the principal in its division in precisely the same proportion that the whole bore to any part. Such proportion being separately chargeable, after the partition, only on each allotment, unless indeed any one of the allotments are found Inadequate to pay such proportion. It might then perhaps, under particular circumstances, form an exception to the general rule.

From what has been said, it follows, that there was no error in the charge of the Court, and that the judgment be must affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Gins ox-, C. J

license: Public Domain

text:
    DELAP for the use of the trustees of STEWART, against STEWART and McKNIGHT, surviving WRAY.
    IN ERROR,
    S devised two plantations in trust, to apply the rents to the maintenance of his brother and his family during-his life; and bequeathed $1000, with directions to apply the interest and any part of the principal which the' trustees should deem necessary, to the same object, and to divide the residue at the brother’s death among the children. A judgment was recovered against the brother and two sureties -, and having paid part of the debt, he and the sureties prevailed with the trustees to advance the residue, on the credit of the judgment of which they took an assignment. Held: that the judgment was not satisfied as against the sureties, and that they were compellable to pay the same.
    Error to the Common pleas of Adams county.
    This was a scire facias post annum et diem, issued to revive a judgment of record in the said Court in. favor of Charles De-lap, ■ against David Stewart, Thomas McKnight and Andrew ■Wray, of which on the 27th May, 1825, the plaintiff received $77 13, from David Stewart, and the balance from Isaac Wire-man and Joseph Arendt, trustees .under the will of Charles Slew-art, to whom he on that day assigned the balance of the said judgment. Defence was taken to the scire facias by Mr. McKnight on the, ground, that he- and Wray were the sureties of David Stewart only, and as the payment of the judgment was made by the trustees out of the trust fund, in which David Stewart had the beneficial interest, it amounted to a payment of the judgment as against the sureties.
    Proof was made that David Stewart was the principal, and Mr. McKnight and Wray were his 'sureties in the judgment, and that the amount paid by the trustees was paid out of the trust fund. These trustees were appointed 'by the will of Charles Stewart, which so far as material in this suit was as follows;
    “I devise to J. Arendt, sen’r. and Isaac Wireman, and their heirs, my two plantations, situate in Menallen township, in the county of Adams, to wit: the old farm on 'which I formerly lived, and the farm purchased as the property late of John Mac-hley, during the life-time of my brother David. Stewart, to be rented by them, and the rents to be applied by the same trustees for the support and maintenance of the said. David Stewart, and such of his family as shall be with him, and to be paid at the dis*-cretion of the said trustees, in such sums and at such times as they may think proper, he to have no control over it.'’
    “Also, it is my will, and I do order and direct my executor’s, hereinafter named, to pay over to the said John Jlrendt, and' Isaac Wireman, one thousand dollars, in good obligations now due, or the said one thousand dollars in money as soon as the-same can be collected, out of the moneys due to me after my de cease, and to put it to interest, and the interest annually to be applied to the support and maintenance of my said brother David Stewart, and s.uch of his family as continue to live with him; and' should it happen from sickness or other circumstances that part of the principal in the opinion of the said trustees, be necessary for the comfortable support and maintenance of the said D. Steiu-art, they hereby are authorized to appropriate so much thereof as-they in their discretion may judge necessary for the purposes aforesaid, and if at the death of the said David, the whole or any part of the said one thousand dollars, should be unexpended, then it is my will that the same be equally divided among all his children, sharo and share alike, and.their heirs.”
    Wireman, one of the trustees being objected to as a witness and-the objection over-ruled by the Court, testified that all the parties, to the judgment requested the trustees to apply the trust fund in the way they had done; that McKnight had said it would be giving him or them time to pay it. That he was not present when it was paid, but it was. paid with a view of purchasing the judgment.
    The plaintiffs requested the Court to charge the jury,
    1. That if the money were advanoed by Jlrendi to Delap, at the request of all the defendants, as a purchase of the judgment, and merely to give the defendant longer time to pa.y it in, and was not intended nor understood at the time by any of the parties to be an extinguishment or satisfaction of the judgment, but was agreed, understood and intended by all the parties still to remain good against all the defendants, that then the plaintiffs are entitled to recover.
    3. That nothing contained in the assignment of said judgment, opcrates.as a legal extinguishment of said judgment, without and contrary to the intention and agreement of the parties.
    The Court charged the Jury in the negative of these propositions, upon the evidence as given in the cause.
    The verdict being for the defendant, the plaintiffs upon this, writ of error, which they had sued out to the judgment entered upon it, assigned for error, the answers of the Court to the points -put by them, and to which they .had excepted.
    The cause was argued by

      Sievens for the plaintiffs in error,
    and by

      Fuller and Carot'hers (with whom was Penrose,) for the defendants
    who referred to Kessler v. McConachy, 1 Pawle,4.39., .and Keller v. Leib, 1 Penn. Pep. 220.
   The opinion of the Court was delivered by

Gins ox-, C. J

The case is this': Charles 'Stewart, devised •two plantations in trust to apply the rents to the maintenance of .his brother and his family during his life : and bequeathed a thousand dollars, w-ith directions to apply the interest and any part of thw ■principal, ’which the trustees should deem necessary to the same object,and to divide the-residue at the brother’s death among his chil■dren. A creditor subsequently recovered a judgment against the brother and two sureties ; and the brother-having paid part of the debt, he and the sureties prevailed with the trustees to advance the -residue on ¡the credit of the judgment which was assigned as a security : and «the question is, whether any ,rule of law or equity forbids this as an investment of the trust fund.

It is a material part of-the case, that the judgment remained unsatisfied at law. That the advancement should not be talcen as .payment, but as the consideration of an assignment, was an express condition of the agreement,, which is to be executed, if at all, -in all its parts. It is unnecessary to say what would have been «the consequence of direct payment and a formal entry -of satisfaction, as it is evident from the transfer of the ownership, that all parties considered the judgment to be an unsatisfied security. The defendants insist they have an equity that entitles them to ¡turn the advancement into absolute payment, which, they allege, •would be within the scope of their trust. It is apparent however, -that such an equity would be in the. face of their own agreement; and it is, beside, fallacious to assume" that payment would be con-sistent with the trust. There is not a word in the directions to ■thé trustees, that looks to any thing beyond personal maintenance ■and support. On the contrary, the obvious purpose of the trust •was to guard the"testator’s bounty from interception by creditors. It is said that to relieve the brother’s household goods from the pressure of an execution, would conduce directly to the purpose. ¡Certainly it would. But to relieve them by paying the debt, instead of purchasing them in, would leave them exposed to other ¡creditors, as well as subject them to the disposition of the brother, who was to have no control over the trust property. Ia fact, the fund might be exhausted in payment of debts, without accomplishing a single object of the trust. Nor could the trustees have safely paid the money to the cestuy que trust, with permission to use it at his pleasure. To put any part of the fund into his hands, would have been inconsistent with their duty in preventing him from having a control over it. Being interposed to preyent 'him from wasting it, they would have confided the application of it to him at their peril, and any connivance with ,him to divert it from the prescribed object, would have been a breach of trust. The argument, then, that payment with his approbation, would be equivalent to payment to himself, is without force, because without foundation. The trustees had indeed, power to break in on the principal, in case they should think it necessary; but a plain answer to any inference from this, is that they have in fact, not thought it necessary.

By taking a security for what they advanced, they took care oot to leave that matter in doubt. It is the sureties who attempt to break in on the principal against the consent of the trustees, and with a view to their own advantage. It is said, however, that to sanction the-transfer, would enable the trustees to sell the cestuy que trust out of house and home. I see nothing in that. If the property were bought in by them, it would beheld under the trust for his use; and if bought by strangers, the proceeds would be part of the fund, and he would, be entitled to the benefit of it. The fallacy is in considering the transieras being to the trustees in their own right. The use they should make of it, would depend on tlieir discretion, which, it is fair to presume, would be exercised with a single eye to his advantage, as a failure in this particular, would render them" liable for a breach of trust.

So far is the judgment from being necessarily an instrument of oppression, that it may be the only efficient means of preserving the property for his use. But having obtained the ownership of it, they are not compellable to use it for tire advantage of the sureties, who are entitled to no benefit from the trust, the objects of which are unconnected with their equity against the cestuy que trust, as their principal. Would it not then be monstrous to permit the defendants after having seduced the trustees into the particular measure, to profit by it at the expense of the trust, and in the teeth of their own agreement? If the judgment creditor, the trustees, and the defendants have agreed that the transaction shall be a purchase and not a payment, what policy, or principle «flaw, requires them, without fraud or misrepresentation, to be cut loose from their agreement? The arrangement gave the defendants the benefit of delay, and probably saved their property.. from being sacrificed; so that an objection to the validity of it, comes from them with a bad grace. But I am unable to see any defect.in it, even without their assent. The trustees have nothing to do with equities between principal and surety. Their duty is limited to an administration of the fund, to the maintenance of the cestuy que trust, and distribution of it, at his death, among his children; and to effect this, they may collect the money from all or any of the parties legally liable, leaving to them their remedies against each other, with which the trustees have nothing to do. If the sureties fail in obtaining satisfaction to be made by the principal, they will be in at least as good condition as they Were before, the arrangement; but they can not manage matters so as to procure payment to be made out of the trust fund, at the expense of the trustees or the persons ultimately entitled.

HfstoN, J. — dissented.

Judgment affirmed.


author: Huston, J.

text:
    In the matter of the state road from Gettysburg, in the county of Adams, to the top of Conococheague hill in Perry county.
    The act of the 23d of April, 1823, does not give the Quarter Sessions power to vacate absolutely a state road. It expressly forbids a vacation, unless when the view or review supplies another route. Views and reviews may be granted under the act of 1825, and that of 1809, to vacate and change the route of a state road before it has been opened.
    Certiohari to the Court of Quarter Sessions of the county of Adams.
    This writ was taken to the decree of that Court, confirming the report of reviewers, appointed to review a part of the state road from Gettysburg in the county of didams, to the top of Conococheague hill in Perry county.
    The following errors were assigned:.
    1st. The Court erred in appointing.viewers to view and vacate, or change, the route of the road as reported by the state commissioners.
    2d. Also in appointing reviewers, and receiving and confirming their reports.

      3d. The reports of the viewers and reviewers were both erroneous: — First, because the routes were not surveyed and chained by,-nor in the presence of the viewers, or reviewers: — 2d. They do not describe the parts of the former route, or routes, to be vacated: — 3d. Because a road opened according to the report of the reviewers north, of Conewago creek, would not unite with the-road, as-reported, south of that creek. ✓
    • 4th. The Court ought to have rejected both reports; and to have adhered to the confirmation, (if any confirmation were necessary,), of the report of the state commissioners.

      Fuller and Alexander? against the proceedings.

      ■ No review of a state road can be granted, until the road be opened. Act of 23d April,, 1829, Pamphlet Laws, 326. When the report of state viewers is filed it is a record, and ipso facto a road directed to be opened ; and-n® further proceeding can be had upon it until the road be opened. JBy the act of the l l:th of April, 1825? Pamphlet Laws? 16.1, views and reviews ar.e directed to be granted upon the report of a state road, as in the case of a county road y and by the act of the 6th of February, ISIS? Pnvd. Dig. 732? where a road is reported, and after confirmation, and before-the road is opened, a review is desired,, it carr only be obtained on the petition of a majority of the original- petitioners:- and they contended that as a majority of the original petitioners did not apply for a review in this case, the Court erred in granting it. They referred also to the nineteenth section of the act of the 6 th of April, 1802, Purd. Dig. 198..

      Stevens for the proceedings,
    A county road may be vacated without supplying- another.. Not so of state roads; when they are vacated a new road must he laid out by the viewers or reviewers, to supply the place of the- old road.-
    A state road cannot be laid out until the Court fix the breadth of the road. Jn the case of the road from Jonestown to JVillces-barre, T Serg. & Eawle, 487. The case of a state road is not governed by the act authorizing the Court to grant orders on petitions to- vacate roads; but by the compound rules of all the acts on the subject of granting orders- to lay out road's in the county. How could the Court of Quarter Sessions be informed, that a majority of the original petitioners had signed a petition for a view or review to vacate a state road, when the original petition for such road was not presented to the Court, but to the legislature?
   The opinion of the Court was delivered by

Huston, J.

The act of the 6th April, 1802, provides for laying ■out, and opening roads ; and in the nineteenth section, for vaca'ting any useless or burdensome road ; and this act contemplated that after the road was .vacated, there might be no highway from .one extreme point to the other. "■

And the act of the 6th February, 1815, provided, that after a road was laid out and before it was opened, it might be vacated on a petition by a majority of those who petitioned for the road, and-this act also contemplated, that there might be no highway between the extreme points. Another law and very beneficial one, the act of the 3d of April, 1809, is made to provide for the improvement of our roads, by vacating certain parts, and laying out a road to supply such parts, on other and better ground. The old road is vacated wherever it-is supplied by a new one. Under this law there is still to be a highway between the extreme (joints 5 but it may be in many places, different -from the old one. The act of the 23d of April, 1-825,. does not give the Sessions power under the two first acts, to vacate absolutely a state road — but in the words of the act of 1809 ■“ to vacate and change.” It expressly forbids the Court to vacate, unless upon the view or review another route is supplied.

On the act then of 1825, and that of 1809, we are of opinion that the Court had power to grant the views and reviews in question, and so ehange the route. It would be strange, if viewers, in laying a road thirteen miles in length, should not commit •some errors, and in some places lay out the road on ground not the best, And it would be very.'harsh, if, when this was discovered, the county was compelled to malie a bad and inconvenient -road, in order to be entitled to permission to apply for and obtain .a more convenient one.

The other exceptions need not be noticed.

proceedings confirmed.


author: Gibson, C. J.

text:
    ZELL against ARNOLD.
    .Where the jury are ex officio bound to give costs, and omit to do so, the Court ivill supply the deficiency.
    An action to recover damages for negligence in the execution of work, employment, trust or duty, under a contract is not cognisable before a Justice of the Peace. The proper action is a special action on the case. It is substantially for a tori, although a tort deducible from the existence of a contract.
    Therefore, where such action is brought in the Court of Common Pleas, and a verdict is rendered for less than one hundred dollars, the plaintiff is entitled to costs.
    Appeal from the Circuit Court of Adams coupty. It was an action on the case brought by George Arnold the appellee, against Jacob Zell the appellant in. the Court of Common Pleas of that county, and removed into the Circuit Court.
    The plaintiff in his declaration, counted that the defendant was a mill-wright, and for a reasonable reward, and consideration, to be thereafter paid, undertook to build a clover mill, and carding machine, and to level and grade the water of a certain rivulet or brook in Betle’s meadow, &c. to the dam of the plaintiff; and did then and there undertake and agree to build said mills, and grade and stake off said race in a skilful and correct manner. In consideration of the promise aforesaid, &c. yet the said Zell, then and there so negligently, carelessly, and unskillfully, graded and laid off said race and water-course, and built'said mills; and so inaccurately and erroneously governed himself therein, and for want of due care and skill on the part of the said Zell, in the premises, the said mills thus built, &c. and the.said race thus dug, &c. cost the said Arnold, more money than if the same had been skilfully dono; and are totally^ useless and of no value to ¿he said Arnold, and the water will not flow along the said race or channel to the said dam and mills aforesaid, whereby said plaintiff is entirely deprived of the use of said improvements, by him as aforesaid made, &c, to the damage of the said George Arnold, &e.
    And in the second count of the said declaration, the plaintiff counted upon a promise of the defendant to build the said mills, and-to level the fall of the said rivulet or brook, and to report the same correctly to the said George-, and to mark or strike off the said race or channel to convey and carry the water from said brook, to the mill dam of the said George. And that the said Jacob, did report to the said George, that there was a fall of sixteen inches from the bottom of the stream of the said rivulet to the surface or top of the mill dam, &e. And that the said George, giving full faith and credit to the report of the said Jacob, &e. did expend a large sum of money, &c. in the purchase of land and in .digging and excavating the race, &c. and in building the said mills, &e. Yet, the said Jacob, did then and there, negligently, carelessly, and unskillfully, level, grade, and lay off said race, &c. and build said mills, &c,, that the water will not run and flow in and along and through the race aforesaid, in and to the top or surface of the mill dam of the said George, with a fall of sixteen inches, from the bottom of the same rivulet or brook, whereby the said George is entirely deprived of the use of the said mill, land, &c. by him purchased and made, &c. To the damage of the said George, &c.
    On the trial of the cause, a verdict was rendered for the plaintiff, for six cents damages, whereupon the Court, over-ruling amotion made to enter the judgment without costs, gave judgment for the plaintiff with full costs, from which the defendant appealed; and now assigned for error, that the Court over-ruled the motion made by him, and gave judgment with full costs.

      Fuller, Watts and Penrose, for the appellant,
    argued, that the court erred in giving judgment for full costs, in as much as the cause of action was within the jurisdiction of a Justice of the Peace. They contended that the plaintiff had declared upon a special assumpsit, and that the action was in fact, an action of assumpsit, and sounded in contract and not in tort. But that if the action should be considered by the Court to be an action on the case, properly so called, and not an action of assumpsit, the plaintiff might have brought his action of assumpsit, waiving the tort, and going upon the contract,. which was the foundation of his action.
    By the act of the 20th of March, 1810, §26, Purd. Pig. 459, it is provided, that if any person shall commence any suit for a debt or demand, and recover less than one hundred dollars, when the cause of action is cognizable before a justice of the peace, he shall not recover costs. By the first section of that act, Purd. Pig. 450, what causes of action are cognizable before a justice of the peace, are ascertained. They are “all causes of action arising from contract, either express or implied, in all cases where the sum demanded is not above one hundred dollars.” The question presented is, did the cause of action upon which the plaintiff declared, arise from a contract either express or implied ? There can’be no doubt that the foundation of the plaintiff’s action, was the contract of the defendant. If it be considered as an implied contract, it is still within the jurisdiction of a justice. In this view it would fall within that last class of contracts, implied by reason and construction of law, which arise Lorn a supposition that one who undertakes any office of employment, trust or duty, contracts, with those who employ or intrust him, to perform it with integrity, diligence and skill. 3 Black. Com. 165. The reme•dy for a breach of suc'h a contract is unquestionably in the election of the plaintiff — either assumpsit, or case. 1 Chit. Plea. SS. Elsee et al. v. Gatward, 5 T. R. 143. In 2 Chit. Pie#,. 3 32, there is a precedent of a declaration in assumpsit, upon such a contract Wilsons v. Plummer’s executors, 4 Peter’s, 172. 1 Chit. Plea. 122. Legaux v. Fearor, 1 Yeates, 586. Cotteral v. >Cummings, 6 Serg. & Rawle, 348. The plaintiff then might have waived the tort and brought his action of assumpsit before a justice of the peace, it being a demand of which a justice has cognizance, and therefore he is not 'entitled to costs on this verdict. Finney v. McMahon, 1 Yeates, 248 So an action of assumpsit on a warrantee of a horse, was decided to be within the jurisdiction of a justice, under the acts of the 1st of March, 1745, and 19th oí April, 1795. Sheively v. Wiedman, 1 Serg.. & Rawle, 417.

      Siemens for the- appellee
    . -Contended that neither count, in the declaration was in as-sumpsit, and that the cause of action was not cognizable before a justice of the peace. That here the action was a special action on the case, and that many such actions involved an implied assumpsit, as in the case of an .escape.
   The opinion of the Court was delivered by

Gibson, C. J.

The objection at the Circuit Court was that the jury had not found costs as well as damages. That point came up in Stores v. Tong, Rep. & Ca. of Prac. in C. B. 7, in which it was held that where the jury are ex officio bound to give costs, .and omit to do so, the Court will supply the deficiency. Here the plaintiff’s right to costs is resisted on the ground that the cause of action was cognizable by a justice of the peace. The declaration is in case; and although the action has grown out of a contract, it is not necessarily within the act of assembly. No other contract formed an ingredient in the subjectof it, than that implied by the law, which requires any one employed in an art or calling, to bring to the business a competent share of diligence and skill. The gist of an action on the .case like the present, is not a failure to perform, but a failure to perform in a worhmanly manner, avhich is a tort. Slater v. Baker, 2 Wils. 359. Dr. Groenvelt’s case, Ld. Raym. 214. An undertaking for skill and diligence is implied no further than to raise a duty, the BREACH of which is the gravamen and meritorious cause of the action. The difference between assumpsit which is an action directly on the contract, and case which is collateral to it, is shewn by the pleadings. the general issue in the first being non assumpsit, and' in tlie se-eond, not guilty. These are sometimes concurrent remedies; as-in an action against a carrier who may be made to respond either immediately on the contract whichafiords a specific ground oB action, or on the custom which raises a duty to carry the goods safely ; and as the one or the other form is adopted, so may the count be joined with other counts sounding in contract or tort.Law of carriers, 117. In all cases where the action is not on the contract,, but for the breach of a collateral duty, the gist is a personal tort; as where a smith prides a horse in shoeing, or a farrier kills him by bad medicines or neglect: and it is emphatically the gravamen in an action against a barber for barbering his customer negligenter et inartificialiter. 2 Bulsir. 333. That the defendant’s liability arose remotely out of a contract, therefore, is by no means decisive of the question. As was said' in Zeigler v. Gram, 13 Berg. & Rawle, 102, the legislature had in view a contract in the popular sense of the word; notan artificial agreement depending on a fiction of law. A special action on the case lies for what is substantially a tort, although a tort deducible from the existence of a contract. Such was not within the view of the legislature; and We are satisfied the cause of action here was not a subject for the jurisdiction of a justice.

Huston, J — Dissented.

Judgment affirmed


author: Rogers, J.

text:
    ERB’S APPEAL.
    In 1825, Á, as the surety of B, confessed a judgment to E, which included a judgment of B to M, obtained in 1822, which latter judgment it was verbally agreed A should have. A and B, in 1824, gave their judgment bond to O, to prevent the sale of C’s goods which O, had levied on. These goods were then handed to-A as a security, and O at once entered judgment on the bond of A and B. E issued an execution on his judgment, and to satisfy the same sold the property thus given to A as a security, and some of A’s own property. In 1827, the proceeds of the real estate of B which were insufficient to pay off all the judgments against him, were brought into Court for distribution; and the' question was whether O or B, (to whom after the money was in Court, A had assigned the judgment of B to ill, which A claimed as having paid off, and under the verbal agreement,) was entitled to the money. Held: that D, (who came in after the rights of the creditors had attached, of which he had notice,) stood precisely in the place of A, affected with all the equity, secret or apparent, which existed between A and O: and therefore that A, or her assignee, JD, could not take this money in opposition to O, to whom A was indebted by the judgment of A and B to him, which was unsatisfied, and because substantially O’s property had paid the judgment of B to M in which A claims to be subrogated.
    ' This was an appeal by Christian Erb, from the decree of the Court of Common Pleas of Cumberland county, appropriating the proceeds of the real estate of Barnabas McCormick, on a sale made bj’ the sheriff!
    The following were the facts agreed upon:
    “ On the 5th of July, 1S22, a judgment on the report of arbitrators was entered at the suit of John Martin against Barnabas McCormick, for @401 78, from which McCormick appealed.
    The $9th January, 1825, Barnabas McCormick, with Mary Moore as his surety, confessed a judgment to Jlndreio S. Dear* mond, for @800, which judgment included the judgment oí Martin against McCormick before mentioned.
    The 14th April, 1824, John McCormick (son of Barnabas,} confessed a judgment to William Orr for $593 75, on which execution issued forthwith to the sheriff, who returned “levied on defendant’s personal property, and sold the same the 13th May, 1824, and paid proceeds to the plaintiff.”
    At the time this property was about being sold, Barnabas McCormick and Mary Moore gave a bond for @601 48, to William Orr, the plaintiff in the execution, whose judgment was thus satisfied. The property was then knocked off in the lump to Mary Moore, for @750, as a security to her, she paying no money except the sheriff’s costs of @21 50, and permitting the goods to remain in the possession of John McCormick. Two ‘dayg'.after this sale Orr entered u^|w^ment on the bdnd give'n him, by B. McCormick and Marifi ’lon this judgment, by a.provision in the bond; there was1a%1;ay'of execution until the 19th February, 1835.
    . The 29th January, 1825, Dedriftqnd, issued an execution on his judgment, the writ came to the’htipds of the sheriff the same dayj.who leviéd on personal pnpj)iffity shown him hv Mary Moore, as her property, and vsold'.il\e,;same the 21st February, lS25,.for $933 15; A great portiohVof the property so sold was the same which had been struck down to Mary Moore, at the sale'of John McCormick’s property;; under Orr’s execution; of the. residue, part was-hers, part Bernard, McCormick’s, and part John McCormick’s-. So ffiucli oj'it.he proceeds of this sale as was,requisite, was applied to D 'armond’s judgment, and the balance of $58 64j was paid to William Orr, who on the 19th February, 1825, had issued an execution on his judgment against McCormick and Moore, which execution came to the hands of thersheriff the day it issued, - '-V -A .
    The appeal which had been enthrei};b'y;N«rrc«6a$ McCormick froth the report of the arbitratorsdn'/jZtfw-riin’.s' case, was withdrawn; the 22d August, 1827. j.filj'ed'.'.tjay 'previous (the 2lst,) Mary Moore, for value received, assigneff the judgment of Jtfor-tiny. McCormick, to Christian Erb,’ add guaranteed the payment of the same. At the time Martin’s judgment was included in the judgment given ry B. McCormick and Mary Moore to Bearmond, it was .„ eed by Martin and Dearmohd, that Mary Moore should have the amount of .said judgment, but no written transfer was made mi til the 11th F°hr%t,ary, 1829.
    In Jamcary, 1827, Barnabas McCormick’s real estate was sold cm 8n.old judgment of FFilliam Orr’s, No. 251, of Jlpril term, 182Í', for $3,105, which was the fund for distribution, but, after paying this judgment and other prior "ones, the balance remaining was insufficient to satisfy the judgment pf Martin against McCormick, assigned to Erb, and that of William Orr agw-.st B. McCormick and Mary Moore, on the bond given by them. The question was, which of these judgments should be first paid. The Court below decreed the money to Orr, and from this decree the present appeal was entered. "
    The dase was argued by Penrose and Carothers, for the appellant, and

      Alexander for the appellee.
   The opinion of the Court was delivered by

Rogers, J.

That a surety an paying the debt, is entitled to ' stand in tlie place of the creditor, and to be subrogated to all his rights against the principal, is unquestionably true ; but it is equally true, that the doctrine of substitution, is founded on pure equity. When therefore, an application is made for substitution, the court will take care,, that the subrogation of the surety, shall work no injustice to the rights of others. King v. Baldwin, 2 Johns. C. R. 554. Cheeseborough v. Millard, 1 Johns. C. R. 409. In all sueh cases, the surety, is entitled to have all prior liens assigned to him for his benefit, and to have a cession of all the rights and securities of the creditors, as if he were a purchaser, either against the principal debtor or his co-sureties. Whether Mary Moore has brought herself within the benefit of these principles,- is the enquiry to which our attention has been directed. I say Mary Moore, for I cannot perceive how her assignee is placed- in a better situation. The assignment to Erb-was made, after the money was raised on the execution and paid into Court. As, then the rights of all the creditors had attached, of which he had notice, he stands precisely in the place of the assignee, affected with all the equity, whether apparent or secret, which- existed between her and Orr. I shall assume, that the judgment of Bearmond v. McCormick and Moore, did not extinguish the judgment of Martin v. McCormick, for this would seem from the case stated to have been the understanding of all1 the parties. If then, Mary Moore has paid the judgment of De-armond against herself, and McCormick, she would have had aright to be subrogated, not only as respects the latter judgment, but the judgment of Martin v. McCormick. She would be entitled to all the rights and securities of the creditors. In deci-ing on the application- of Mary Moore to be substituted, (for in this light the case must be viewed,) we must consider, that in subrogating her, or which is the same thing, her assignee, we deprive William Orr of his-debt, by taking from him a real- security, and throwing him upon the personal security of Mary Moore, who is insolvent. By the execution against John McCormick, Orr had acquired a specific lien on his property,, and- this, he consented to relinquish, on Mary Moore’s becoming security with Barnabas McCormiek for the debt. In this way she acquired part of the property, which has been sold, and which it is alleged, places her in the situation of a surety, who has been compelled to pay the debt of the principal. It is obvious that for" this property Mary Moore has paid nothing, as it is not pretended that any part of the Bond to Orr, has been paid. Nor is it likely that any part of the debt, ever will be discharged.

We do not look upon this as constituting such an equity, as entitles her to be substituted as against Orr. We view this as a payment, not with her own funds but substantially with the funds of •Orr. Nor does this injure her, .for by the application of the money arising from the sale, to Orr’s debt, she is relieved to the extent :of the payment. The facts of this case, are defectively found, as they have not ascertained what amount of the debt was paid, with the money arising from the sale of the property she derived from .the arrangement .with Orr, nor the proportion which came from the property .of Barnabas McCormick, nor what part was paid, with that which properly may be considered her own property. As this is in effect, an application by the assignee, for substitution., •this should be done, for otherwise we cannot fix the amount for whichhe.is.entitledto.be subrogated. But suppose the money was paid entirely out of the funds of Mary Moore, is her assignee ■then entitled .to be substituted in the place of the creditor? We think not. A court of chancery will refuse to interfere, unless in a case of pure equity, which this is not: as the direct consequence would be, that Mary Moore would take the money out of court, and Orr would be compelled to resort to her for payment of the debt, which although it might not be attended with ultimate loss, -yet would create great difficulty.- The payment of the debt at ■law, extinguishes the judgment, but a court of equity interferes .to prevent injustice to the surety on a principle of benevolence. Where the surety .is also a debtor, and but for the substitution the fund would go to the payment of his debt, he cannot incur any.loss ; and therefore, there is no call for the extraordinary interposition of the court, .to protect-his interest. It is the same to him, that his debt should be paid directly from the fund, as if .the surety was to receive .the money and pay the debt himself. And this case is a strong illustration of the principle.

If .the court refuses to permit a .substitution, Mary Moore -suffers no .injury, because the fund goes to pay her debt to Orr. But if she is allowed ,tn recover the money, and apply it to a different purpose, Orr would be injured, as it deprives him of a legal right to the money raised by-the sale, and subject to distribution by the Dourt

Decree of the common pleas affirmed.


text:
    NEAL against SHIELDS.
    IN ERROR.
    IVhere there is a plain mistake on the part of the referees, where fraud or imposition has been practised on them by either party, or. where there is corruption 01; misconduct among themselves, their award is open to re-examination, reduction or total rejection. I
    A mistake must be established by the prpof and facts before the referees, and not by what might possibly hkve been proved by witnesses not examined.
    ■\Vhere there is a fair and honest trial and a just decision, according to the evidence before referees, the awar|i is final and conclusive on both parties, although in trutl} injustice may have been done.
    Error to the Common Pleas of Cumberland county.
    The defendant in action of debt on an parties, who reported] the sum of error, who was plaintiff below, brought ap award of referees mutually chosen by the 15, as due to him.
    On the trial of the cause, the defendant offered to prove by several witnesses not examined before the referees, (and of whose testimony he knew nothing until after their award,) what was the original contract between Shields and himself, and how it \vas brought about, in order to establish the great injustice of the award. He further offered to show that the plaintiff acknowledged the terms of the contract with the defendant to be different from that presented to the referees, and fixed by them.
    This testimony being objected to was overruled by the Court, -$tho in their charge to the jury stated:
    <¿If there was a plain mistake on the part of the referees, or if there was fraud or imposition upon them by the plaintiff, or corruption or misconduct by themselves, either of these would open the award to re-examination and reduction, or total rejection. But you cannot judge of mistake, by what was not before the referees, but might possibly have been proved by witnesses not examined, this must be done from the proof and facts that were before them. If the same arbitrators had had other proof they would probably have decided differently: but you cannot take up the case anew, and because you may' suppose from other proof, not before the arbitrators, that injustice may have b<| n done, reduce the amount of the aware1 or totally reject it. If there -was a fair and honest trial, and a just decision, according to the evidence before, the referees, the award is final and conclusive .011 both parties, although in truth, injustice may have been done. „
    ERROR assigned.
    The Court erred in charging the jury that they were restricted to an examination of the award on the evidence before the referees, and could listen to none other even though injustice had been .done.
    The cause was argued by Alexander for the plaintiff in error,

      Williamson and Carothers contra.
   Judgment affirmed.


text:
    ROBERT R. CHURCH against PHILIP FETEROW.
    IN ERROR,
    A variance in the date, or in the substance of a note offered in evidence, from that set out in the statement, is a fatal objection to such evidence.
    When a note is given for the payment of a certain sum of money, ivithin a certain time, to be paid in furniture or other specific articles ; until the day of payment the payor has an election to pay either in money, or in such specific articles; but after the day of payment is past, his right of electlen is gone, and the payee’s right to demand the money is absolute. J

    Sn a suit upon such a note, if there has been no tender of the specific articles a statement under the act of 1806, is sufficient.. ' ’

    An unqualified acknowledgment of a subsisting debt, raises a new promise by legal presumption, and it is the duty of a jury to infer a promise to pay. But if such acknowledgment is accompanied with explanations or words inconsistent with a promise to pay, it i§ not sufficient upon which to infer anew promise.
    Error to the Court of Common Pleas of Cumberland count)*-.
    This action originated before a justice of the peace, from whose judgment- there was an appeal to the Common Pleas, when the following statement was filed:
    “ This action is founded on a promissory note, or assumption in writing, dated 8th April, 1818, and signed R. R. Church, by which the said defendant promised to pay to' the sai.d Philip Fe-,

      trow $24 75, in three months after the date of the said writing.”
    Then followed the usual certificate,
    To support his action, the plaintiff offered in evidence the following paper, signed by R. R. Church, the defendant:
    “This is to certify, I agree that I will become accountable to Philip Feterow, for twenty four dollars and seventy-five cents, in three months after this date, to be paid in furniture if agreed to by the parties, this 6th day of April, 1818.”
    To the admission of which evidence the defendant objected:
    1. This is not the same instrument declared on, it materially varies from the statement.
    2. It is not a case embraced in the act of 1806.
    These objections were over-ruled, and the defendant excepted.
    To avoid the effects of the plea of the statute of limitations the plaintiff gave, in substance, the following evidence:

      Feterow went to Church’s house with a cart and asked him about the furniture. Church said he should have come when the furniture was ready for him; but, said he, go to my wife .and ' see if there is any furniture there for you. Feterow replied, no, I have nothing to do with your wife ; Church then said, come we will go to the house and see if there is any furniture there for you. Feterow asked the witness to go along. Church asked what he wanted’men along with him for? Feterow answered, to judge of the furniture. Church then said, that if he was not a sufficient judge of furniture himself, he might do without, and refused to go. They then parted.
    The defendant’s counsel requested the Court to eharge the jury>
    1. The paper given in evidence does not support the statement filed.
    2. No recovery can be had in a suit on, such a note, without a declaration; it is not the kind of a claim on which a statement under the act of 1806 can be filed.
    3. The act of limitations is a bar to the plaintiff’s recovery, unless he has proved, that within six years before this suit brought, the defendant promised to pay thé debt.
    To which the Court answered:

      To the first point. The mere production of the paper would not sustain the statements; but if there was an offer by the plaintiff, to take the furniture, and a refusal by the defendant to give it, before the suit brought, the engagement became absolute, and gave the plaintiff a right to recover the money.
    We think it is such a case as is embraced in the act of 1806, which allows a statement of the plaintiff’s cause of action, in place of a declaration, and no precise form is required. The facts are set forth in this statement agreeably to the requisitions of the statute.
    To the third point. This is the law: after six years the law bars a recovery, unless the defendant actually promises to pay, or acknowledges the existence of the debt in such form, as to raise a promise in law to pay it. Acknowledging the existence of the contract, the correctness of the note, or that the debt is due, raises an implied promise to pay, which is sufficient in law to take the ease out of the statute of limitations, and enables a plaintiff in such case, to recover. When the defendant acknowledges the existence of the debt or claim and that it is unsatisfied, within the six years, it is the duty of the jury to infer a promise to pay. If there is not such proof, the plaintiff cannot recover.
    The following errors were assigned:
    1. The court erred in admitting the note in evidence; and in their answers to the defendant’s first and second point.

      2. The court erred in their answer to defendant’s third point.

      Alexander for plaintiff in error.

      Watts for defendant in error.
   The opinion of the court was delivered by

Ross, J.

The statement filed, sets out a promissory note, or assumption in writing, dated the 8th of April, 1818, and signed by R. R. Church. The note or agreement given in evidence, was dated the 6th of April, 1818. This evidence was objected to, and the objection over-ruled by the court. In this, there was clearly error. The variance between the date of the instrument given in evidence, and the one set forth in the statement, was fatal. It is a general rule, that in actions upon bills of exchange, promissory notes, and other written instruments, the true day upon which they purport to bear date, must be stated: for it is a material part of the instrument, and the slightest variance between the date of the contract laid, and that proved at the trial, will be a sufficient ground of non-suit. Arch. Ev. Plead., 121, 228, 265. This principle is in accordance with the opinion of this court, in Stevens v. Graham, 7 Serg. & Rawle, 508, in which case it was held, that proof of a promissory note, dated the 26th of July, does not support a declaration, stating a note dated the 25th of July. Justice Duncan, who delivered the opinion of the court, says, “that in every written instrument, the day laid is material, and must be proved as laid, where the action is brought on the instrument itself.” This case in fact decides the point under consideration; though the same principle may be found in Dunbar v. Jumpar, 2 Yeates, 75. Cothe v. Graham, 3 Cranch, 229. 8 Johns. Rep., and in many other cases, to which it is unnecessary to refer, as it sufficiently appears, that the court erred, in admitting the note in evidence.

The second point made by the plaintiff in error is, that no recovery can be had in a suit on such a note, without a declaration; and that it is not the kind of claim in which a statement can be filed under the act of 1806. If the construction, that has been given to this act by the decision in the case of Thompson v. Gifford, 12 Serg. & Rawle, 74, be correct, then unquestionably the statement in this case sets out a cause of action, embraced within its provisions. It was for a debt founded on a promissory note or assumption in writing, by which Church, the defendant below, “promised to pay to the said Philip Feteroio, twenty-four dollars and seventy-five cents, in three months after the date of the said writing,” &c. But the note or instrument of writing, given in evidence, was very different from this statement. It was in these words: “This is to certify, I agree, that I will become accountable to Philip Feteroio, for twenty-four dollars and seventy-five cents, in three months after this date, to be paid in furniture, if agreed to by the parties.” Duncan, for whom Church, by this agreement became accountable for the amount proposed, was one of the parties, whose agreement was required before the payment could be made in furniture. Whereas, the statement filed was on a note or assumption, for the absolute payment of the money; and it entirely omitted the words, “to be paid in furniture, if agreed to by the parties. ” In the case of Roberts v. Beatty, decided at the last term held at Pittsburg, the rule was laid down, that to authorize the filing of a statement, the demand must be one not only of the description mentioned in the act, but must also, be of such a nature,, that a fixed and determinate sum may appear to be due with sufficient certainty, so that if the defendant neglects to appear, the court can ascertain the amount without the intervention of a jury, and give judgment for such sum. In this case, if the furniture were not delivered, or offered to be delivered within three months from the date of the note, then it was of that description, in which a statement may be filed. Because, immediately after the expiration of the three months, without a delivery, or offer to deliver, the agreement became absolute for the payment of the sum stipulated by the contract; and the right of election to pay in money or furniture, ceased. It then became a liquidated and ascertained sum, fop which a court might have given judgment, without the intervention of a jury. If, however, Duncan had. not agreed to the ár-rangement, or if the furniture had been tendered, it probably would not then be a case in which a statement could be filed.

The decision in the case of Gray v. Cunningham, 17 Serg. & Rawle, 425, does not embrace the case now under consideration. For if the statement filed, set forth a case within the provisions of the act, a demurrer would have been of no avail: and if the note or instrument of writing given in evidence, was not such an ascertained demand, as would authorize the filing of a statement, then the only mode, which the defendant below could adopt, was resorted to on the trial, by objecting to the evidence, and requesting the court to charge the jury on the point in question. I therefore, entertain no doubt, but that the misdirection of a judge in his charge in a case like the present, may be assigned for error in this court.

The second error assigned, is that the court erred in their answer to defendant’s third point, “that the act of limitation, isa bar to the plaintiff’s recovery, unless he has proved, that within six years before the suit was brought,, the defendant promised to pay the debt.” In this point, the court below charged that, “acknowledging the existence of the contract, .the correctness of the note, or that the debt is due, raises an implied promise to .pay, which is sufficient in law to take the’ case out of the statute of limitations, and enables a plaintiff in such case to recover. — When the defendant acknowledges the existence of the debt or claim, and that it is unsatisfied within the six years, it' is the duty of the jury to infer a promise. — We refer it entirely to the jury, whether the evidence establishes the existence of the claim, outstanding and unpaid within six years, before suit brought. If it was, it is your duty to infer a promise to pay — if there is not such proof, the plaintiff cannot recover.” It is unnecessary to enter into an examination of the different cases, that have been decided on the statute of limitations, to show that there was error in this charge of the court. For the principle is now well established, that an acknowledgment of an existing debt, is not sufficient to infer a promise to pay, when such acknowledgment is accompanied with words or explanations inconsistent with a promise. 9 Serg. & Rawle, 131, Fries v. Bosselet. 11 Serg. & Rawle, 13, Hudson v. Carey. 12 Serg. & Rawle, 393, Eckert v. Wilson. 14 Serg. & Rawle, 197, Baily v. Baily. 1 Penn. Rep. 137 and Stark. Evid., 889 to 898, where most of the cases decided in the courts of the different states, as well as the modern decisions in England are collected in a note. Where the expression and conduct of the'defendant are ambigúous in making the acknowledgment, it is a question of fact for the jury to determine whether they amount to an admission of a debt subsisting at the time. In this case, the only evidence of acknowledgment relied on to take the case out of the statute, is the testimony of Andrew Kittering. For Church’s acknowledgment to Mr. Watts of his signature to the instrument of writing, was certainly not an acknowledgment of any indebtedness. It was merely an acknowledgment of the instrument of writing, and not of the debt itself. It neither denied, nor admitted the payment of the money: and therefore the court erred in laying it down to the jury that acknowledging the correctness of the note, raised an implied promise to pay, which was sufficient to take the case out of the statute of limitations. In the testimony of Kittering, there is not such an unqualified acknowledgment of a subsisting debt, as will raise the presumption of a promise to pay. Indeed it seems to me, that there is not any kind of acknowledgment of indebtedness. When Feteroio asked him about the furniture, he said, “He should have come when the furniture was ready for him,” and tells him “to go to his wife and see if there was any furniture there for him.” Merely indicating thereby, that he was'willing he should have it, if any could be found. After some further conversation, he said, “That if he was not a sufficient judge of furniture, he should not have any.” This declaration taken in connection with the whole conversation, was, it seems to me, inconsistent with a promise to pay. And the judge erred when he instructed the jury, that if they believed the evidence established the existence of the claim, it was their duty to infer a promise to pay. It was hot such an unqualified acknowledgment, as the law requires to take the case out of the statute of limitations; and the court would have been correct in laying it down, that it was not a sufficient acknowledgment to infer a promise to pay.

The law on this subject, may be thus stated: where there is an. unqualified and unequivocal acknowledgment of a subsisting debt, the. presumption of law would he, in the total absence of all proof' or circumstances to the contrary, that it amounted to a new promise; and the court would be then bound to instruct'the jury, that it was their duty to infer a promise to pay. But where the acknowledgment is accompanied with words or explanations inconsistent with a promise, the court would be bound to instruct the jury, that it was not sufficient evidenoe from which they could presume a new promise. When the conduct and expressions of the defendant at the tipie of making the acknowledgment, are equivocal or ambiguous, it will be a question of fact for the determination of the jury, whether they amount to such an admission of the d.cht, as will raise the presumption of a new promise.

For the reasons assigned, the jud^me^t in this case must be re-, yersed. (

Judgment reversed and ventre de novo awarded.


author: Gibson, C.. J.

text:
    ELIZABETH DUNLOP, for the use of STEWART, against BARD and RANKIN, executors of JOHNSTON.

      3. J. devised to E. as follows: — ‘‘Item, it is my will that when my estate is sold, both real and personal, out of the moneys arising from the same, I allow my executors to give E. D. my niece, formerly F. the sum of $1350, lawful money of the United States, in part of what her husband J. I). is indebted to me, the above to be in full of all their claims against my estate.” “And it is my will, that if my wife accepts of dower, as within set forth, she shall be first paid by my executors, and B. D. next.” J. J. died in 1817, at the time of making said will, J. D., the husband of E. D., was indebted to the testator on a draft of R. M. on J. B. and accepted by 3. D. for £511.5, dated 18th Novemher, 1830; on this draft there was written by the testator as follows: “The love and affection I have for E. F., now E. D., I make over the principal of £511.5, and make over my right unto her assigns, witness my hand and seal, this 28th May, 1807. The interest to be to me while I live.” On this draft, the executors of J. J., brought suit against the administrators of J. B., and by areport and judgment recovered to the amount of tire interest due . on it. J. B.’s estate became insufficient to pay his debts, but before this was discovered, the administrators of J. D., had paid E. D., sums exceeding $2500. Evidence of these payments were exhibited to the referees in the suit on the draft, and it was admitted, that E. B. was unable to repay such advances. In an action brought by E. D., againsttheexecutors of J. J., to recover the said legacy, it was, held that the intention of the testator, was to declare the legacy payable at all events; leaving it to the chances of survivorship, whether the debt due by the husband, should be collecied and paid to his wife, as part of the testator’s estate, or defalcated as satisfaction.
    The act of Assembly, which gives an action at law, instead of a bill in equity, was not intended to vary the legatee’s rights. And here a chancellor would call in every party interested, and inquire into the value of the plaintiff’s legacy, and what she had actually received. The payment made by her husband’s administrators to her, was in their own wrong, and a devastavit as respects the executors of J. J., but these executors had a right to treat it as a i-ightful payment of her legacy, which when ratified by them, was as effective, as if the payment liad been made on their previous order, and amounted to a satisfaction of such legacy.
    EmtoR to the Court of Common Picas oí Franklin county._
    This was an action on the case, brought by Elizabeth Dunlopr for the use of R. Stewart, to recover a legacy devised to said Elizabeth, hy the will of James Johnson.

      James Johnson, by his will, dated September, 1814, and proved May, 1817, devised to said Elizabeth as follows, viz: “Item, it is my will, that when my estate is sold, both real and personal, out of the moneys arising for the same, I allow my executors to give Elizabeth Dunlop, my niece, formerly Findley, the sum of thirteen hundred and fifty dollars, lawful in the United States, in part of what her husband John Dunlop, is indebted to me, the above to be in full of all their claims against my estate. ”
    “And it is my will, that if my wife accepts of dower, as within set forth, she shall be first paid by my executors, and Elizabeth Dunlop next.”
    Of this will Jl. Bard and others, were appointed executors.

      James Johnston, died May, 1817.
    ■ At the time of making said will, John Dunlop, the husband of Elizabeth, was indebted to the testator on a draft of Richard Miles, dated November 15th, 1813, on John Dunlop, in favor of James Johnston, for £511. 5, which was indorsed by Dunlop. On this accepted draft there was written by the testator as follows, viz: “The love and affection I have for Eliza Findley, now Dun-lop, I make over the principal of ¿6511.5, and make over my right and title unto her assigns, witness my hand and seal, this 28th May* 1807. James JohNstoN.
    The interest to be to me while I live- J. J.
    By cash you paid Johnston of John, on my order, interest ¿6100. J. J.”

      John Dunlop, died shortly after James Johnston. In October, 1817, an action was brought by James Johnston’s executors, against John Dunlop’s administrators, in Centre county, on the above draft, and a report and judgment was had in favor of the executors, to the amount of interest due on said draft.

      John Dunlop’s estate was considered at his death to be metre than sufficient to pay his debts, and his-administrators before the discovery' of the insolvency of the estate, had permitted Elizabeth Dunlop the widow, to take property at the appraisement, and had also paid her various sums of money at different times, some of which was for the maintenance of the children; the amount of property taken by her, and the money paid her, exceed $2500. Evidence of which payments was exhibited to the referees in the action of Johnston’s executors against Dunlop’s administrators. And it was admitted, that Elizabeth Dunlop, was totally unable to repay such advances and payments made to her by the administrators.
    The cause was argued by Dunlop, for the plaintiff in error, and plaintiffbelow, and by Chambers, contra.
   The opinion of the court was delivered by

Gibson, C.. J.

The principal due on the'accepted draft, was from the beginning intended for the plaintiff, leaving the consequences of the gift to the marital rights of her husband, whatever they rhight be at the testator’s death. To carry this intent more certainly into effect, he bequeaths to her very nearly the same sum, as part of what her husband owes him, and in full of all claims on his estate. So far the intention is clear. But he directs this legacy to be paid out of the sales.of the real and personal estate; and as it could not be so paid, and at the same timededucted from the husband’s debt, it is supposed that the memorandum of transfer on the accepted draft, must receive a testamentary sanction to give effect to every part of the will. The intention however, seems to have been to declare the legacy payable at all events; leaving it to the chances of survivorship, whether the debt due by the husband* should be collected and paid to his wife, as part of the testator’s estate, or defalcated as satisfaction; and in this way, no part of the will is without effect.

Then as to the question of satisfaction. The act of Assembly, which gives an action at law, instead of a bill in equity, was not intended to vary the legatee’s rights; so that the question here is, what would a chancellor do? He woiild call in every party however remotely interested, and inquire into the value of the plaintiff’s legacy, and the amount she had actually received. Her husband’s administrators have paid her, in their own wrong, moneys which would otherwise have come to the hands of the testator’s executors, and increased his estate to an amount beyond the value of her legacy. As against the executors this, was a devastavit, but one to which she was party, and equity would protect them as far as it could, by throwing the consequences on the party actually benefited. Accordingly they have been protected to the value of her legacy in the suit on the accepted draft. Does not the same equity regulate the liability of the parties all round? Had she not consented to the devastavit, she would have received her legacy out of the assets in hand; but having anticipated the regular course of payment, by devoting a- fund which was part of the assets, she cannot allege that her husband’s administrators committed a devastavit, in putting it into her possession. ' With the concurrence of the executors, what is there that could prevent them from treating it as a rightful payment of her legacy? A precedent authority would undoubtedly produce this consequence, and a consequent ratification is equally operative. Then any defence here is a ratification, and it of course prevents a recovery. -.

Judgment Affirmed.