author: by Agnew, J.

text:
    Phillips’s Appeal.
    1. When jurisdiction rightfully exists in a court of equity it is not in conflict with law or the constitution or the right of trial by jury for the court to appoint a master to report the facts and such a decree as he may deem proper to be made by the court.
    2. The court should in such case so regulate the practice as to secure the most accurate and full development of a case in aid of its own functions.
    3. The proceeding before a master is not a tról which judicially determines the rights and liabilities of the parties with a bare appeal to the court.
    4. The proceeding before a master is to develop the rights and liabilities of the parties for the consideration of the court; the party dissenting bringing the real points of controversy before the court by exceptions.
    5. What shall be referred to a master is a matter in the discretion of the court; his province is merely ancillary.
    6. The effect of the appointment of a master is to bring into his report the facts and a proper decree, and also his deductions of fact and conclusions of law in order to arrive at a decree.
    7. No report is conclusive.
    8. The court give great weight to a master’s report, because of his superior opportunities of judging of the credibility of witnesses and the effect of their testimony.
    9. When the fact is merely a deduction from other facts reported by him, his conclusion is simply a result of reasoning, of which the court is as competent to judge as h'e.
    10. The report of a master is neither a decision nor an infallible guide, but an instrumentality to aid the court in performing its own functions.
    11. The principle in Bank v. Reese, 2 Casey 143, and Musgravev. Beckendorff, 3 P. F. Smith 310, applies only where by refusal to perform the contract, the plaintiff suffers the loss in the advance price of the stock to be conveyed.
    March 8th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the Supreme Court at Nisi Prius: In Equity: No. 15, to January Term 1866.
    This was a hill, filed October 25th 1865, by Robert L. Brooke and William Barrington against Isaac N. Phillips, Charles M. Phillips, Thomas W. Phillips, John Phillips and the Maple Shade Oil Company. The bill set out an agreement between the plaintiffs, Alexander Richardson and John Richardson, and the Phillipses, defendants, to purchase oil-land in Venango county; each of those persons to be entitled to one-eighth part of the enterprise; that the Phillipses, on behalf of all the parties, purchased of A. Gr. Egbert an interest in the Hyde and Egbert farm for $205,000; the bill further set out the negotiations of the parties and modifications of their agreement between themselves and their organization of the Maple Shade Oil Company.
    In the 5th paragraph it set out: — In the month of February 1864, the Phillipses agreed with complainants to modify the original agreement of January 1864, and to pay to complainants, for efiecting a sale of two-thirds of the property sold to the Maple Shade Oil Company, $32,000 of the profits realized from such sale, to be given in stock at subscription prices, if the profits should be in stock, and in money, if the profits should be in money, and also by giving them the 5000 shares of stock over and above the 30,000 shares subscribed, and the 15,000 bonus shares. After the subscription was completed, and before the first instalment was paid, the Phillipses applied to complainants to modify this second agreement, upon the pretence that complainants had failed to procure subscriptions for two-thjrds of the property. The Phillipses then proposed to complainants that the share of the profits of complainants should be reduced to one-third of the 5000 shares, being 1666-f shares, and one-sixth of the profits of $95,000, being $15,833.33j- in stock, upon the sale of the property to the Maple Shade Oil Company. The complainants, deceived by the misrepresentations of the Phillipses in regard to the subscriptions to the stock, which were mainly, if not wholly, procured by the complainants, assented to this modification.
    Soon after the subscription to the stock was completed, and before the certificates were issued, its price rose considerably above the par value ; and the Phillipses claimed the right to pay to complainants the one-sixth of the $95,000 in money in lieu of stock, but the complainants declined' the proposition.
    The bill averred that large cash dividends on the stock had been received by the Phillipses, which should be paid to the plaintiffs; that by reason of their acts, the Phillipses were bound to account to the plaintiffs for the stock at the highest market-rate, together with the dividends, their share of the cash and interest. The prayers were for a decree of payment by the Phillipses of the value of the shares, dividends and interest as aforesaid; also for an injunction on the Phillipses restraining them from transferring any of the stock and on the company from paying the Phillipses any more dividends.
    The defendants demurred, alleging:—
    1. That the plaintiffs had an adequate remedy at law.
    2. .That they had no lien on the stock, giving them a right to restrain the defendants from selling it, &c. They pleaded suits by the Richardsons pending against them in equity and at law in the Court of Common Pleas of Lawrence county for the same cause of action. The demurrer was overruled and the plea disallowed. The defendants then answered amongst other things, as follows:—
    11. “We deny having agreed with the complainants in February 1864 to pay them for effecting a sale of two-thirds of the property sold to the Maple Shade Oil Company, $32,000 of the profits realized from such sale, either in stock or money; or that we agreed to give them 5000 shares of stock and 15,000 bonus shares, as is alleged in the 5th paragraph of the complainants’ bill. And we also deny that we applied to the complainants to modify such an agreement; or that we proposed to them that their share of profit should be reduced to one-third of 5000 shares of stock, and one-sixth of the profits of $95,000 in stock, upon the sale of the property to the Maple Shade Oil Company, as is also alleged in the 5th paragraph of the complainants’ bill, or anything substantially as therein averred.”
    They also denied their liability to pay the value of the stock in money or the dividends thereon as averred by the plaintiffs.
    A replication was filed and George Bull, Esq., appointed examiner and master. He filed his report as examiner and as master December 15th 1868, by which he found that the plaintiffs were to receive for their services 4041 shares of stock, which not having been delivered to them on demand should be paid for by defendants at the rate of $44 per share, the highest market price since 1864, and also the dividends and interest amounting in the whole to $235,962.24.
    On the 27th of April 1869, on the application of the defendants the case was recommitted to Mr. Bull, .with directions to open his report and take further evidence, all the plaintiffs and defendants to be examined as witnesses.
    The master took the testimony of the parties and other witnesses and reported:—

      * * * “As indicated in the original report, there appear to be two questions of fact before the master.
    “ 1. Whether or not the averment of the plaintiffs’ bill, that the transaction out of which this controversy arose, was a joint adventure.

      “ 2. Whether or not the share of the profits to which the plaintiffs were entitled, was to be all stock, or part stock and part money.”
    The master then goes on to refer to the findings of his report on the first question and the additional evidence, and says:—
    * * * “But the whole effect of the testimony of the parties upon this branch of the case, can be disposed of briefly, by the remark, that they flatly contradict each other. * * *
    “Upon the other branch of the'case, the same conflict of testimony is found to exist between the plaintiffs and defendants.
    “ Isaac N. Phillips testified that the modified agreement was made between himself and Robert L. Brooke, and that his brother Thomas W. Phillips was present. That he went to the office of Brooke & Barrington, and called Mr. Brooke out into the hall. A conversation then took place between them, the result of which was, that Mr. Brooke agreed to modify the agreement, as follows: That the plaintiffs should receive $15,833.33 in cash, and 1666 shares of stock. Thomas W. Phillips testifies to the same effect. Mr. Brooke agrees with this statement except as to the nature of the -agreemeirt, and swears that the $15,833.33 was to be in stock and not in money. That the proposition made to him in the hall, was ‘ that unless we would receive the one-sixth of the $95,000, which was the stock profit, and the one-third of 5000 reserved shares, the company'could not go through. ****** That they would pay us equitably in proportion to what we had done.’

      “ The defendants called David Craig, Esq., a member of the Lawrence county bar. * * * The only part of Mr. Craig’s deposition that is of any value in this case, is his statement in regard to the injunction suit in Lawrence county, brought by the Richard-sons against the Phillipses.
    “ With the exception of Mr. Craig the defendants offer no evidence other than their own as to this transaction. The plaintiffs recalled John L. Newbold, who testifies that he was interested with Brooke & Barrington in this adventure. He was present in the office of Brooke & Barrington when Mr. Phillips called Mr. Brooke out into the hall. He agrees with the other witnesses, so far as he saw the transaction, and adds, in corroboration of what Mr. Brooke says, that when Mr. Brooke and the two Phillipses returned into the office, the proposed modification as testified to by Mr. Brooke was explained to him in the presence of the parties, and he was asked to give his assent.
    “ The result of the evidence is simply that the plaintiffs and defendants agree in their general statements, hut when they come to the pinch of the case they disagree. Mr. Newbold reaffirms what he has once before testified to, and gives the details. In doing this he agrees substantially with the statements of the plaintiffs, and contradicts the defendants.
    “ Hiram Walbridge was also produced and examined by the plaintiffs. His evidence is not very material, with the exception that he contradicts some of the statements made by the defendants, relative to the effort made to sell the property in New York. In considering the effect of this evidence upon the former report, it is only necessary to say that Mr. Walbridge corroborates Mr. Newbold.
    “ Two of the defendants, Isaac N. Phillips and Thomas W. Phillips, state that the Richardsons got out an injunction against them to prevent any payment to Brooke & Barrington. They give this as a reason why they did not settle the matter with the latter. If this were true it might have an important bearing upon the case. But Mr. Craig, their own witness, states that he was counsel for the Richardsons in the proceeding referred to, and says in answer to a question by the master: ‘ in the equity suit commenced against the Phillips Brothers, in Lawrence county in 1864, there was no injunction issued.’ It also appears by the copy of the record of the equity proceeding in Lawrence county, annexed to defendants’ testimony, taken prior to the former report, that no injunction was actually issued. There was nothing done that in any way enjoined or restrained the defendants from coming to a settlement with Brooke & Barrington.
    “ The result of this additional evidence rather confirms the master in his former conclusion than otherwise, and does not warrant any alteration or modification of his report.
    “ The time that has elapsed since the first report was filed, makes a new computation of interest necessary, in order to ascertain the amount of the decree to be entered at this time,” &c. * * *
    The master having made corrections in the computations, reported that there was due, February 22d 1870, from the defendants Phillips to plaintiffs the sum of $246,688.04.
    The defendants filed exceptions to both of the master’s reports ; the exceptions were overruled, the report of the master confirmed March 3d 1870, and the defendants Phillips decreed to pay to the plaintiffs the amount found by the master, with costs.
    Phillips appealed to the Supreme Court.
    There was a large amount of testimony taken and reported by the examiner, and the master’s report was quite extensive.
    The main points of contention on the facts of the case were, whether the one-sixth of the profits, $95,000, equal to $15,833.33, was payable in stock or cash, and whether the whole stock deliverable to the plaintiffs was to be estimated at its highest market value or at the original price, viz., $10 per share, each subscriber being entitled, under the original arrangement, to receive one share for every two shares paid for by him, which would bring the stock to $6.66 per share.
    The decision in the Supreme Court turned very much upon the view there taken of the facts; what is before given, with the facts referred to by Judge Agnew, in his opinion, is deemed sufficient for an intelligible report of the case.
    The assignments of error were:—
    1. Overruling the defendants’ demurrer to the relief prayed for in the bill.
    2. Disallowing the defendants’ plea of the former and pending suits against them in Lawrence county, for the same cause of action.
    3. 4 and 5. Dismissing the defendants’ exceptions to both reports and confirming them.
    6. The decree of payment.

      W. B. Price, G-arfield (of Ohio), and Black (with whom was Meredith), for appellants.
    The hill demurred to is substantially a declaration upon an alleged contract to deliver stock, and claiming compensation for an alleged breach of such contract, according to the measure of damages given at law.
    Under such contract the only claim is by an action of assumpsit or covenant: Weiss v. Mauch Chunk Iron Co., 8 P. F. Smith 295 ; Musgrave v. Beckendorff, 3 Id. 310 ; Bank of Montgomery v. Reese, 2 Casey 143. Rendering damages to a party aggrieved is not the province of a court of equity. So, again, there can in such case be no relief in a court of equity: Chinnock v. Sainsbury, 3 L. J. Ch. 409; Middleton v. Magnay, 2 H. & M. 236; Rogers v. Challis, 27 Beav. 175; Snell’s Principles of Eq. 475.
    According to the averments off the bill, the compensation of the complainants for making the sale was to he a moneyed one, though it is alleged that in a certain contingency it was to be payable in stock: Weiss v. Mauch Chunk Iron Co., supra.

    The complainants have not shown by their bill that they had any lien upon the stock standing in the name of the Phillipses, or to restrain them in their disposition of it, or to require it to stand as security for the complainants’ claim.
    Under the prayer for general relief the court will grant such relief only as the case stated in the bill will justify: Story’s Eq. Pl., § 42; Del. and Hudson Canal Co. v. Penna. Coal Co., 9 Harris 131; Horton’s Appeal, 1 Id. 67.
    The suits in Lawrence county are substantially but one suit, and for the same cause of action, as in this suit; the jurisdiction of that court first attached, and Brooke and Barrington, as well as the Phillipses, are parties there : Cleveland, &c., Railroad Co. v. The City of Erie, 2 Grant 212; Id. v. Id., 3 Casey 382, 3; Curt. Eq. Precedents 164; Story’s Eq. Pl., §§ 735, 747; Welford’s Eq. Pl. *309. It contained only one defence: Story’s Eq. Pl., § 654.
    Where one purchases stock for another, and takes a transfer into his own name, it is sufficient if he always retain so much of the same stock as will enable him to transfer to his principal, on demand, the whole amount purchased for him : Gilpin v. Howell, 5 Barr 41.
    The compensation is due to Brooke and Barrington and the Richardsons — who should have been made parties to this suit; and it is not ready for final decree till they are brought in.

      P. 3. Weil, 3. M. Phillips and Woodward, for appellees.—
    If any part of the bill is good, and entitles the complainant either to relief or discovery, a demurrer to the whole bill cannot be sustained: Livingston v. Story, 9 Pet. R. 658.
    There is a prayer to the bill for general relief, and the complainant is entitled to any relief which is consistent with the case made in the bill: Bailey v. Burton, 8 Wend. 344; Wilkin v. Wilkin, 1 Johns. Ch. R. 117; Story’s Eq. Pl. 40, 41, and note; Traipe v. Gould, 15 Maine 82; Thomason v. Smithson, 7 Porter 144; Brown v. McDonald, 1 Hill’s Ch. R. 302; Allen v. Coffman, 1 Bibb 469; 1 Daniel’s Ch. Pr. 383, and cases cited; Beaumont v. Boultbee, 5 Ves. 485; Palk v. Lord Clinton, 12 Id. 63; Read v. Cramer, 1 Green Ch. 277; 1 Daniel’s Ch. Pr. 387, and note; Bleeker v. Bingham, 3 Paige Ch. 246.
    The complainants and defendants were jointly interested in the profits of the partnership or adventure, and therefore account render or bill in equity is the proper remedy. A partnership exists -when two or more persons combine their property, labor and skill, of one or more of them, in the transaction of business, for their common profit: Parsons on Cont. 124; Ex parte Langdale, 18 Ves. 300; Chapman v. Devereaux, 9 Am. L. Reg. 419; Dunham v. Rogers, 1 Barr 262; Smith’s Leading Cases, 6 Am. ed., vol. 1, part 2, p. 1196, and cases cited; Sims v. Willing, 8 S. & R. 103; Tench v. Roberts, 6 Mad. 144, n. a; Cheap v. Cramond, 4 B. & Ald. 663; Newman v. Bean, 1 Foster 93; Loomis v. Marshall, 12 Conn. 69; Robbins v. Laswell, 27 Illinois 365; Reid v. Hollinshead, 4 B. & C. 878; Story on Partnership, § 15 ; Dob v. Halsey, 16 Johns. 34; Ferguson v. Alcorn, 1 B. Mon. 160.
    The receipt of the complainants’ share of the profits, by the defendants, constitutes a trust cognisable in equity: Seymour v. Freer, 8 Wallace 202; Anderson v. Lernon, 4 Selden 236.
    May 8th 1871,
    The receipt of the complainants’ share of the profits, by the defendants, gave a right to an account, and bill in equity is the proper remedy: Act of 13th October 1840, § 19, Purd. 402, pi. 4, Pamph. L. 7; Finlay v. Stewart, 6 P. F. Smith 191; 2 Tr. & Haly Pr. 163; Steffen v. Hartzell, 5 Whart. 451; Irvine v. Hanlin, 10 S. & R. 221; Bouvier’s Law Dict., tit. Bailiff; McAdam v. Orr, 4 W. & S. 550; Story on Ag. (2d ed.), § 89; Bissett on Part. 14; James v. Browne, 1 Dall. 340.
    It is not sufficient to oust the jurisdiction of a court of equity, that the complainant has a remedy at law unless that remedy be complete and adequate: Skilton v. Webster, Bright R. 203; Yard v. Patton, 1 Harris 282; Seymour v. Freer, 8 Wall. 215; Bank of Kentucky v. Schuylkill Bank, 1 Pars. 220 ; Kilpatrick v. McDonald, 1 Jones 393 ; Story’s Eq. Jur., §§ 462, 463; Fowle v. Lawrason, 5 Pet. 495; Scott v. Surman, Willes 405.
    This bill being for discovery also, it will be made effectual for the purposes of full relief: Story’s Eq., § 64; Gloninger v. Hazard, 6 Wright 401; Adley v. The Whitstable Co., 17 Vesey 323; Kyle v. Haggie, 1 Jac. & Walk. 236; McKenzie v. Johnston, 4 Madd. 373; Bank of Ky. v. Schuylkill Bank, 1 Pars. 219; Hare on Discovery 8 ; Brightly’s Eq., §§ 124, 476; Schollenberger’s Appeal, 9 Harris 340; McGowin v. Remington, 2 Jones 63; Brooks v. Stolley, 3 McLean 529; Baker v. Biddle, 1 Baldwin 409.
   The opinion of the court was delivered,

by Agnew, J.

On the question of jurisdiction of the bill in this case the members of the court are equally divided. Jurisdiction of the case is therefore sustained on this ground. I would dismiss the bill.

Before examining the merits of this case it is proper to notice the practice of proceeding before a master, which has been so vigorously assailed. It is objected that it is contrary to correct equity practice, and inconsistent with the duty of the court and the right of trial by jury to appoint a master to report the facts and such a decree as he may deem proper to be- made by the court. But this matter is not well understood by the learned counsel. If there be no chancery jurisdiction over the subject of the bill his animadversions should have been directed against that; as is well shown in the cases of The North Penna. Coal Co. v. Snowden, 6 Wright 488; Norris’s Appeal, 14 P. F. Smith 275; Tillmos v. New York Dyeing and Printing Co., 17 Id. 507. But when the jurisdiction rightfully exists there can be no conflict with the law or the Constitution; for then it is not only the duty but the right of the court so to regulate the practice before it as to secure the most accurate and full development of the case in aid of its own functions. Its power is statutory and ample: Act of 16th June 1836, §§ 3, .21, Brightly’s Dig. 928, pi. 21, 33. By reason of the large amount of equity business, original and appellate, it has become impossible for this court to examine every case, ab ovo and in detail; but we must be brought directly to the points of the contest. This can be done only by a preliminary hearing before a competent master, who can take time to examine the case well, and report upon it intelligently and accurately. The effect of this is to eliminate from the controversy that which is undisputed, and to develop the true points of contest. The error of the learned counsel was in supposing the proceeding before the master is a trial which judicially determined the rights and liabilities of the parties, with a bare appeal to us, when it is but a process to develop them for our consideration; the party dissenting from the master’s views bringing the real points of the contest into our view by his exceptions. Our rules, therefore, make provision for the appointment of masters, both general and special, and for their powers' and duties: Rules in Equity 62, 64, 65, &c. No rule limits the subject of reference to the master; but what shall be referred to him is a matter in our own discretion; for his province is merely ancillary: 2 Maddock’s Ch. 505, 506, 509; 2 Daniel’s Ch. Pr., ed. 1865, pp. 1294, 1299, 1301, note 4; 3 Daniel’s Ch. Pr. 2197. The effect of an appointment of a master to report the facts and a proper decree is no doubt to bring into the report not only the facts directly proved, but his deductions of fact and conclusions of law, in order to arrive at the decree. But there is no impropriety in this, as it only serves to develop the cause fully, and is not binding on the parties unless approved by us after an examination of the matters in dispute. The conclusiveness of a master’s report is sometimes spoken of. But properly speaking no report is conclusive. That would be to make the judgment of an officer performing an ancillary service superior to our own. The weight due to a master’s or auditor’s report depends on the matter in question. When he reports facts directly proved by the witnesses we are accustomed to give his report great weight, because of his superior opportunities of judg7 ing of the credibility of the witnesses and the effect of their testimony. But when the fact is a deduction merely from other facts reported by him, his conclusion is simply a result of reasoning, of which we are as competent to judge as he. Then if we find a master supporting a conclusion by false deductions, or upon erroneous views of the character and weight of the facts actually found, it is not only our right but our duty to correct his error. When in order to arrive at a proper decree he also states his conclusions of law, they are but opinions submitted for our adoption, if we think they are founded in reason and law. Hence the report of a master is neither a decision nor an infallible guide, but is a serviceable instrumentality to aid us in performing our own functions. It is obvious, therefore, that in this .case the master, under the terms of his reference, could not perform his whole duty vyithout finding the facts in relation to the final contract, deducing his conclusions therefrom, ascertaining the value of the stock, the amount of the dividends received, and pronouncing his conclusions upon the whole case. In doing this he has lightened the labors of the court, and really served the interests of the appellants by stripping the case of unfounded allegations and immaterial facts, and bringing it down to the few terms of the final or modified contract. Upon the testimony of John L. Newbold he found this contract to be, that the plaintiffs for their services in procuring the subscriptions to the Maple Shade Oil • Company which they had obtained, were to have the one-sixth part of the profits of $95,000, or $15,833.33-J- in stock at subscription price, and one-third of 5000 shares of reserved stock. But we think the master erred in his conclusion that the one-sixth of the $95,000 or $15,838.33J, was payable in stock. We think the clear and decided weight of the testimony on both sides is, that this sum was payable in cash. The master sets out in a material error by giving to the answer of the defendants less than its due weight; overturning it by the unsupported testimony of a witness whose attitude in the cause entitles him to no greater weight than the testimony of any one of the defendants. The defendants in their answer deny expressly and responsively to the bill, that they were to pay the one-third or the one-sixth of the $95,000 in stoek.

The testimony of Mr. Newbold was not entitled, under the circumstances in evidence, to the great weight given to it by the master. Supposing him to be legally competent to testify, yet he had evidently a strong bias of feeling and of interest of a personal kind. He was one with Brooke & Barrington in the enterprise, and was to receive one-third of its profits. He assigned his interest, it is true, in absolute payment, he says, of his debts; but the assignment was to his brother-in-law, and for a sum small in comparison with that found by the master on his testimony, having a surplus to return to himself, or to fill the pocket of his near relative. One or the other would gain largely by his testimony. His testimony is also-seriously contradicted, not only by the two Phillipses, but by Brooke and himself. In his first examination on the 4th of June 1867, referring to the final or modified agreement, he testified that Isaac N. Phillips, Brooke and he, had a conference together in Brooke & Barrington’s office, and that Phillips said to Brooke, “ as you have only got $100,000, instead of $200,000 of the subscriptions, I propose to reduce your compensation to one-sixth of the $95,000, and one-third of the 5000 reserved shares.” This he gave as a quotation of the language of Phillips, and as a proposition made in a personal interview at which he was present. But Brooke’s account is, that two of the Phillipses, Isaac and Thomas, came to his office-door and called him into the hall, and there stated to him that he had not raised the $200,000 to pay Dr. Egbert, and that unless he and Barring-ton would consent to modify the agreement, to wit, to receive one-sixth of $95,000, which was the stock profit, and one-third of the 5000 reserved shares, the company could not go through, and they would go up into the country and endeavor to raise it themselves. He says then that he went into the back office with the Messrs. Phillips and repeated the conversation they had had in the hall to Newbold in their presence. This is essentially a different version from that given by Newbold. Two years and a half after-wards, on the 7th of December 1869, and after Brooke had testified as just stated, Newbold was recalled, and then said he was sitting in Brooke & Barrington’s office, when Isaac Phillips came in. “ He called Mr. Brooke out into the hall, as he has stated, and he and Mr. Brooke returned into the office and they stated to me the proposition which Mr. Phillips had made to Brooke in the entry.” Then, as if to give color to his former statement, he says: “As I have stated before, Mr. Phillips said, You have only got one-third of the amount required subscribed, and I want to reduce your compensation. I will give you one-sixth of the profits of $95,000 in stock at subscription price, and one-third of the 5000 bonus shares in lieu of the former agreement.” But even with this attempt at reconciliation there is a manifest diversity in the statements of himself and Brooke. The two Phillipses also directly contradict Newbold’s statement, and agree with Brooke’s in ail except the mode of payment, which they assert was to be cash and not stock. This is the very point of the contest, whether the payment of the $15,833.33-J- was to be in cash or stock, and in regard to it, we think the weight of the evidence is clearly with the defendants. After the general statement of Mr. Brooke, above given, he was asked to answer this question: “ Please state as near as you can recollect the words used by Isaac N. Phillips, in proposing the modified agreement as testified to by you.” He answered: “As near as I can remember, one-sixth of the $95,000 stock profit, and one-third of 5000 reserved stock. . He put it in figures, $15,833.33^- in dollars, to represent the proportionate amount of the stock interest at subscription rates; he did not use these words to me, but I never gave my assent to receive money in lieu of stock at subscription rate.” Thus Brooke himself yields substantially the precise form of the contract proved by Newbold, and that which is noAV sought to be established. He admits that Phillips did not use the precise language he must prove to make the sum payable in stock, but that Phillips put it in dollars, and seeks to avoid the consequence by averring that he did not consent to receive money in lieu of stock. But his consent is immaterial — for the clearly proved fact in the case, and the finding also of the master, is, that Brooke & Barrington had failed to accomplish the subscription under the first agreement and cannot enforce it. He has nothing, therefore, but the modified agreement to resort to, and that he must take as Phillips proposed or obtain nothing. He was the only witness on his side to the proposition made in the hall, and Newbold’s testimony, contradictory as it is, is but second hand. There is nothing, indeed, in their testimony which ought to overturn the answer. But we have, in support of the answer, not only the positive testimony of Isaac and Thomas Phillips, who made the modified agreement, but the testimony of two others corroborating them. The Phillipses state distinctly and positively that the payment of the $15,833.33$ was to be cash and not in stock. Their testimony was taken after the law had gone into effect making them competent as witnesses, the court having made an order to open and remand the first report of the master, and to take the testimony of all the parties. The two Richardsons, who at one stage of the business had an admitted interest in it, prove the clear and distinct admissions of Brooke & Barrington, that the payment was to be in cash and not stock. They had a deep interest in knowing the truth of the ease, and the only way the master disposes of their testimony, is by attributing to the Richardsons a want of frankness — a willingness to sustain their pecuniary interest at the expense of their candor and truth. But the Richardsons are strongly fortified by circumstances. They had left Philadelphia for home before the rupture between Brooke & Barrington and the defendants had taken place, their bill being filed against all the parties on the 29th of March 1864, just twenty days after the modified contract had been concluded. The committee, in the mean time, proceeded to Venango county to examine the land and assist Phillips in making the payment. The report of that committee was made to the subscribers on the 28th of March 1864. The paper referred to by Newbold and Brooke, w'hich was presented by Isaac N. Phillips for signature, they say, was not presented until after the return of the committee, and no controversy began then, but it took place only at the second interview in reference to this paper. The bill of the Richardsons was filed on the 29th of the month, and under these circumstances expressly charges that “ said Brooke & Barrington, so as aforesaid agreed to receive instead of half of all said profits, the sum of $15,838.33$ in aash, and 1666$ shares of stock of said company, to be delivered by the said Phillips.” Now here is an assertion made by the Richardsons against their own interest, if stock was then more desirable than cash, and still more to the purpose, it was ante litem motam, as to the present controversy, and therefore not likely to be fabricated. Following the bill the defendants filed their answer, in which they admit the agreement as thus averred by the Richardsons. This contract with the plaintiffs the defendants have never denied, but always professed to be willing to fulfil, even as shown by the testimony of the plaintiffs. Indeed, they offered to the plaintiffs and the Richardsons, to deposit the money and stock if they would accept it, in the hands of any one they would agree upon to abide the result of the controversy between themselves. They offered to Brooke also, to pay the amount over to him, if the plaintiffs would indemnify them against the Richardsons. The plaintiffs have never agreed to accept performance of the modified contract as thus shown to be, their demand being for stock instead of cash; insisting upon a term in the contract, which the evidence clearly shows did not exist. Besides, an action was brought in the names of the plaintiffs and the Richardsons against the defendants in Lawrence county on the 10th of October 1864, to recover the cash and stock under the modified contract, as understood by the defendants. It is true, that the plaintiffs and the Richardsons litigated as to the right of the latter to use the names of the former in the action. But this did not make the action less potent as a barrier to the defendants’ performance. They could not know whether the action was rightfully brought or not in the names of the plaintiffs. That was not their controversy. They could only await the result of the battle between the claimants, a contest which actually resulted in the defeat of these plaintiffs by the verdict of a jury. There is therefore no ground on which to rest the finding that the defendants ever declined to perform the modified agreement as they admit it to be, and as the proof is. This being the case, it is evident that the plaintiffs are not entitled to bold the defendants to the highest price the stock has since attained. The decision in the case of The Montgomery Bank v. Reese, and in Musgrave v. Berkendorff, applies only to a refusal to .perform the contract, whereby the plaintiff suffers the loss in the advance of the price of the stock refused to be conveyed or transferred by the defendants. The plaintiffs are therefore entitled to a decree for the payment only of the sum of $ 15,833.38-J with interest, and for the value of 1666f shares of the stock at subscription price, together with the dividends received by the defendants thereupon, and interest on the dividends, as well as interest on the value of the stock since the last dividend was declared. We append a statement resulting in the sum for which a decree is now made.

Statement of sum to be paid.

One-sixth of $95,000, payable in cash, ..... $15,883.33 Interest thereon from date of incorporation till May 1st 1871,

seven years fifteen days,........ 6,689.55

$22,522.88

1666| shares of stock at $6.66§, _.......$11,111.11

Total dividends received amounting to $11 per share at par, $10, 18,333.33 Interest on the dividends received, averaged from January 1st

1865 to May 1st 1871,........ 6,966.66

Interest on $11,111.11, subscription value of 1666§ shares of stock since dividends ceased to be declared, .... 3,555.55

$62,489.53

And now, May 8th 1871, the decree at Nisi Prius in this case is reversed and modified; and it is now ordered and decreed that the defendants, Isaac N. Phillips, Charles M. Phillips, Thomas W. Phillips, and John Phillips, do pay to the plaintiffs the sum of $62,489.53, and that the costs be paid by the parties in equal proportions. And it is further ordered that execution for the debt above decreed to be paid, do stay until the result of the action No. 20 of December Term 1864 in the Court of Common Pleas of Lawrence county, brought in the names of the plaintiffs and of John R. and Alexander Bichardson against the said Phillipses, shall be determined, or until the said plaintiffs, Brooke & Barrington, shall give sufficient security, to be approved by this court, to indemnify the said defendants against the claim of the said Bichardsons in the said action.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Groves’s Appeal.
    1. The court in divorce has power to make an order pendente lite for the wife’s expenses, support, &c., and enforce it by attachment; this is a necessary incident to the court’s jurisdiction.
    2. Such order is not a judgment on which execution can issue, nor a lien on the husband’s land, nor a decree in equity for the payment of money.
    3. The 1st section of Act of April 15th 1845 (Divorce), does not extend to interlocutory decrees.
    March 9th 1871. Before Thompson, C. J., Bead, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Schuylkill county: No. 225, to January Term 1871.
    This was a proceeding in the court below distributing the proceeds of the sale of the real estate of James Buddy, deceased. The real estate was sold September 1st 1866 to John Groves for $1200 ; he being a lien-creditor of the defendant, the sheriff took his receipt for $1114.58, and he paid the balance, $85.42, in cash.
    James Ellis, Esq., was appointed auditor to make distribution of the proceeds of sheriff’s sale.
    Before him it appeared as follows: That there were three liens on Ruddy’s property in favor of Grove, the last being entered November 15th 1865, on which were due of principal $840. Ann Ruddy, the wife of John Ruddy, to March Term 1866, commenced against him proceedings in divorce a mensd et thoro. On the 12th of February 1866, the court made an order pendente lite on John Ruddy that he pay to his wife $60 to employ counsel, &e., $75 for past support, and $5 weekly for future support; this order was entered in the judgment docket against John Ruddy. On the same day, February 12th, another judgment was entered against Ruddy in favor of Groves for $500.
    Mrs. Ruddy claimed that the order in her favor for alimony was a lien on Ruddy’s land, and that she was entitled to the amount payable to her under it. The auditor, however, was of a different opinion and distributed the fund excluding her claim.
    Upon exceptions to his report, the court (Ryan, P. J.) held that the order in favor of Mrs. Ruddy was a final decree, and being entered in the judgment docket became a lien. The matter was recommitted to the auditor, who, by a second report, awarded $227.50 to Mrs. Ruddy and $886.62 to Groves.
    This report was confirmed by the court and the following • decree made:—

      “ The report of James Ellis having been finally confirmed, finding the sum of $227.50 of the money arising from the sale of the real estate of James Ruddy, to he due to Ann Ruddy, it is ordered, directed and decreed, that unless John Groves, the purchaser of the sheriff's sale, pay over the said sum of $227.50 within ten days after the date hereof, according to the Act of Assembly in such case provided, the said sale of said Ruddy’s real estate be set aside, and that the same be resold according to the directions of said Act of Assembly.”
    Groves appealed to the Supreme Court, and assigned for error: —Confirming the last report of the auditor ; and that part of the decree relating to setting aside the sheriff’s sale.

      B. W. Cummings, for appellant,
    referred to Act of April 15th 1845, § 1, Purd. 350, pi. 25, Pamph. L. 455.

      J. W. Byon, for appellee,
    referred to same act: Breinig v. Breinig, 2 Casey 161. A decree in equity is equal to a judgment: Le Barron v. Le Barron, 2 Am. Law Reg. 212; Garth v. Ward, 2 Atk. 175; Walker v. Smallwood, Amb. 676; Bishop of Winchester v. Beavor, 3 Vesey 316.
    March 23d 1871,
   The opinion of the court was delivered,

by Sharswood, J.

At common law, following the original feudal principle, land could not be taken to pay the debts of the owner, and hence judgments were not liens. “ At common law” says Mr. Price, in his valuable treatise on Limitation and Liens, “ a judgment was not a lien upon lands, but the lien resulted in England from lands being subjected by statute to be taken in execution; and from this right the land was held bound from the date of the judgment. The first of these, the 13 Edw. 1, de mercatoribus, subjected to liability the lands of the debtor into whose hands soever they came after the statute acknowledged; and by 13 Edw. 1, ch. 18, the elegit was given, by which writ the sheriff delivered to the plaintiff one-half of the debtor’s land until the debt should be levied: 3 Bae. Abr. Execution A. And when our ancestors subjected all the debtor’s lands to execution for debt, this lien of the judgment was held to bind all the debtor’s lands:” Price on Lim. 276; Reed’s Appeal, 1 Harris 479.

To consider then the order of the court below of February 12th 1866, as a lien upon the land of James Ruddy, we must have the authority of some statute.

No doubt the Court of Common Pibas, in which was pending the proceeding instituted by the wife for a divorce, had power to make such an order and to enforce it by attachment. It is a necessary incident to the jurisdiction to decree a divorce. So all the interlocutory orders as well for the payment of costs and expenses as of interim maintenance pending the libel, have been, regarded as well in the ecclesiastical courts in England as in-common law courts specially vested with the jurisdiction in this country: Melizet v. Melizet, 1 Parsons’ Sel. Cas. 78; Graves v. Cole, 7 Harris 173; Breinig v. Breinig, 2 Casey 161.. It certainly, however, is not a judgment upon which an execution, could issue, and it has not been pretended that there is any statute which expressly confers upon it the privilege of a lien. The Act of Assembly of April 15th 1845, Pamph. L. 455, gives, the incidents of lien and execution to the allowance of alimony made upon a decree of divorce a mensd et thoro, but no possible construction can extend its provisions so .as to embrace any interlocutory order the court may make. It is probable, however,, that the court below considered that the act entitled, An Act to make decrees for the payment of money in equity proceedings liens upon real estate, with the right to revive or continue the liens of the same by writ of scire facias,” passed March 29th 1859, Pamph. L. 289, reached the case. But the order now in question cannot, we think, be construed to be “ a decree in equity for the payment of money.” That act is confined to decrees in equity — or as they are termed in the title, in equity proceedings —in the proper technical sense; and this is manifest from the language used that the lien shall be “ with the same force and effect as the lien of judgments rendered by and in the common-law courts of this Commonwealth.” Decrees by courts in equity, are put on the same footing as judgments in the common-law courts. The construction which would extend these words further would comprehend every order made by a court of common law for the payment of money in the exercise of its original functions, or those superadded by statute; as for example on an attorney to pay over money to his client, or upon its own officer to pay money in court to a suitor. The legislature have not so said and did not so intend.

It follows, that the first assignment of error is sustained; and this renders the consideration of the other unnecessary.

Decree reversed, and now it is ordered and decreed that the distribution as first reported by the auditor below, October 26th 1868, be and the same is hereby confirmed, and directed to be made accordingly.


text:
    Bixler versus Saylor.
    1. An exchange of real estate has a warranty in law incident to it, giving a re-entry as well as a recovery in value.
    2. To make such assurance, it is indispensable that the word “ exchange” should be used.
    3. An exchange of chattels has not the same effect.
    4. There is incident to an exchange of chattels an implied warranty of title and on a breach a recovery in damages.
    5. When one of the parties knows he has no title, it is a fraudulent affirmation which taints the transaction and enables the other to avoid it and reclaim his property.
    6. Saylor exchanged horses with Drum, knowing that Drum had stolen the horse. Bixler, with the same knowledge, bought Saylor’s horse from Drum. The owner of the stolen horse took it from Saylor; he being in pari delicto with Bixler could not recover from him.
    7. The maxim, In pari delicto melior eat conditio possidentis, applied.
    March 9th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Solmyllcill county: Of January Term 1871: No. 84.
    This was an action of replevin brought September 5th 1865, by William Saylor against Peter Bixler for a horse, saddle and bridle.

      One Drumheller stole a horse from a Mr. Bressler, which he ■afterwards “ traded” to the plaintiff for another horse; the defendant afterwards bought from Drumheller the horse which Drumheller had received from the plaintiff in the-exchange. There was evidence that when the plaintiff traded with Drumheller he knew or had reason to believe that the horse he got had been stolen; there was also evidence that when the defendant bought from Drumheller he knew or had reason to believe that the horse he got from Drumheller had been exchanged for the one stolen from Bressler. Bressler afterwards took his horse from the plaintiff, and the plaintiff brought this replevin to recover his horse from the defendant, on the ground that the defendant knew it had been taken in exchange for the stolen horse.
    The defendant on the trial in the court below submitted, amongst others, the following points:—
    “ 3. Although the jury believe that the plaintiff voluntarily parted with his property under such circumstances of fraud as would entitle him to recover from the fraudulent vendor, but with notice of the fraud, and that the defendant is a bonfi fide purchaser for value, though with like notice, their verdict must be for the defendant.
    “4. If the jury believe the plaintiff traded with Drumheller after notice that Drumheller did not own the horse, or that he had reasonable grounds to believe the horse was not Drumheller’s, he (the plaintiff) took upon himself the risk of the fraud, and their verdict should be for the defendant.”
    In answer to the points, the court (llyan, P. J.) said:—
    * * * “The defendant has asked us to charge upon several points and we have sufficiently affirmed all but the third and fourth, which in substance assert that if the trade between Saylor and Drumheller was made under such circumstances of fraud as would entitle the plaintiff to recover from the fraudulent vendor, yet if the defendant is an innocent purchaser for value, though with, notice of the fraud, the plaintiff cannot recover against defendant. This we cannot say, for we do not understand upon what principle the plaintiff can be held responsible for acts which do not induce the defendant here to purchase the horse.
    “ It is true that it was talked around the time of the exchange between Drumheller and Saylor, that the horse and buggy belonged to Bressler; but -Drumheller said that it was not stolen property, but his own. Saylor took Drumheller’s word and made the exchange.
    “ Now, if Bixler had stood by and heard this trade and after-wards made this purchase from Drumheller, nevertheless if he knew, before his purchase from Drumheller, that Drumheller had fraudulently obtained the horse from Saylor, Bixler took no better title than Drumheller had. The fact that Saylor parted voluntarily with his horse under the circumstances of fraud, no right-of property would pass as against Saylor and Drumheller, or any one having notice of the fraud.”
    March 20th 1871,
    The verdict was for the plaintiff for $150.
    The defendant took a writ of error, assigning for error, in addition to others, the answers to his 3d and 4th points.

      W. JR. Smith (with whom was Seth W. Greer), for plaintiff in error.
    When a loss is to fall on one of two innocent persons, he who occasioned it must hear it: Robinson v. Justice, 2 Penna. Rep. 22; Beaupland v. McKeen, 4 Casey 131; Railroad v. Norton, 12 Harris 469. A party may lose but cannot gain by his fraud : Arrison v. Harmstead, 2 Barr 194.

      L. Bartholomew (with whom was M. Strouse), for defendant in error,
    cited Sinclair v. Healy, 4 Wright 417; Green v. Humphry, 14 Id. 212.
   The opinion of the court was delivered,

by Sharswood, J.

An exchange of real estate has a warranty in law incident to it; a condition to give the party a re-entry as well as a warranty to enable him to vouch and recover over in value. To make an assurance of that character, it is indispensable that the word excambium, exchange, should be employed: Dean v. Shelly, 7 P. F. Smith 427. An exchange of chattels has no such legal effect. It is a mutual bargain and sale, to which there is incident an implied warranty of title, with the right, in case of breach, to recover in damages.

When, however, one of the parties to the contract acts malfi fide, knows that he has no title to the article he gives in exchange, it is a false and fraudulent affirmation on his part which taints the transaction, and puts it in the power of the other party to avoid it and reclaim his property.

There was evidence in this case from which the jury might have drawn the inference that when Saylor made the trade with Drumheller, he knew, or had reason to believe, that the horse he received had been stolen from Bressler. With knowledge of this fact he made the exchange. Had this not been so it would have been a fraud upon him, which would have authorized him to rescind the contract or treat it as void, and recover the horse he had given in exchange from Drumheller, or any person who had purchased from him with notice of the fraud. But if he knew the fact, how can he be said to have been defrauded in the exchange ? Volenti non fit injuria. Eor what appeared to him to be a sufficient reason, he determined to run the risk of the bargain, and he therefore parted with the property of his horse to Drumheller. When Bressler reclaimed from him the stolen horse he had received, his remedy against Drumheller was an action on the implied warranty of title to recover damages. He could not sue for the specific recovery of the horse he had given in exchange, as there was nothing which lay in his mouth to set up in avoidance of that transaction. If there was a fraud, he was particeps fraudis — he was a receiver of stolen goods with knowledge. It follows logically and necessarily, that if the jury found such knowledge, Saylor could not recover the animal from Bixler to whom Drumheller had sold it, even if Bixler also knew that the horse Saylor received was Bressler’s horse. In pari delicto potior est conditio possidentis. We think there was error in the refusal of the court below to affirm the defendant’s 3d and 4th points, and in answering as they did.

Judgment reversed, and venire facias de novo awarded.


author: by Read, J.

text:
    The Port Carbon Iron Co. versus Groves et al.

    1. If an article is ordered for a special purpose and is sold for that purpose, there is an implied warranty that it is fit for that purpose.
    2. This principle does not apply to oases where a special thing is ordered, although intended for a special purpose.
    March 9th 1871. Before Thompson, C. J., Read, Asnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county: No. 216, to July Term 1870.
    In the court below, Michael J. Groves and others, trading as Grove Brothers, to June Term 1868, brought an action of assumpsit against the Port Carbon Iron Company for the price of 10 tons of pig iron at $46 per ton.
    The plaintiffs proved that on the 10th of November 1866, they sold to the defendants, in pursuance of written order, 10 tons of A No. 1 pig-iron, at $46 per ton cash, and so entered it in their order book, and proved the delivery of that amount of pig iron. They also gave evidence that it was the best quality of iron.
    The defendants gave evidence that they used the iron and it was of an inferior quality; that they had to break up the castings which had been made from it because of the defect in the iron.
    The defendants proposed to prove, “ that the castings made from the iron sold by the plaintiffs to the defendant, and to recover the value of which this suit was instituted, were worthless, and that the defendant was compelled to break them up, and to reheat and recast the same; that the said defendant suffered a loss by reason of said castings proving worthless, of at least $500. The plaintiffs having proved the fact that the iron was sold to the defendant for A No. 1 pig-iron of the first quality, and the defendant having shown that said iron was of an inferior quality, and not of the character represented
    March 20th 1871,
    The plaintiff objected to the offer.
    The court (Ryan, P. J.) rejected the-offer, saying:—
    “ The defendant has proved all of this offer except the alleged damages, and this part of the offer is rejected upon the ground that the defendant kept and used the iron, and is bound to pay what it was worth. There was no warranty for any special purpose.”
    A bill of exceptions was sealed for defendants.
    The verdict was for the plaintiffs for $562.58.
    The defendants took a writ of error and assigned for error the rejection of their offer.

      S. W. Greer and L. Bartholomew, for plaintiffs in error.
    Sale of goods described in a bill implies a warranty that the goods are of that description: Borrekins v. Bevan, 3 Rawle 37; Fraley v. Bispham, 10 Barr 324; Jennings v. Gratz, 3 Rawle 169; Dailey v. Green, 3 Harris 125; Henshaw v. Robins, 9 Metcalf 83; Hastings v. Lovering, 2 Pick. 214. Damages by breach of warranty may be set off for the price of the goods without returning them: Steigleman v. Jefferis, 1 S. & R. 477; 1 Parsons on Cont. 591, 592 and notes.

      J. Tf. Ryon, for defendants- in error,
    cited Jackson v. Wetherill, 7 S. & R. 482; Fraley v. Bispham, 10 Barr 320; Wetherill v. Neilson, 8, Harris 448; Eagan v. Call, 10 Casey 236 ; Weimer v. Clement, 1 Wright 149; Adams Express Co. v. Egbert, 12 Casey 360; Forsyth v. Palmer, 2 Harris 97; Frankenfield v. Freyman, 1 Id. 57; Gilpin v. Consequa, 1 Peters C. C. R. 94; s. c. Wash. C. C. R. 184; Willing v. Consequa, 1 Peters C. C. R. 172.
   The opinion of the court was delivered,

by Read, J.

The plaintiffs sold to the defendants ten tons A No. 1 pig-iron, at $46 per ton, cash. It was to be of the first quality, A No. 1 iron, and it was shipped to the defendants, who retained and used it.

On the trial the defendants made the following offer:—

“ The defendant proposes to prove by Ralph Lee and others, witnesses produced on the part of the defendant, that the castings made from the iron sold by the plaintiffs to the defendant, and to recover the value of which this suit was instituted, were worthless, and that the defendant was compelled to break them up and to reheat and recast the same; that the said defendant suffered a loss by reason of said castings proving worthless of at least $500. The plaintiffs having proved the fact that the iron was sold to the defendant for A No. 1 pig-iron of the first quality, and the defendant having shown that the iron was of an inferior quality and not of the character represented” — This was objected to and the court said:—

“ The defendant has proved all of this offer except the alleged damages, and this part of the offer is rejected upon the ground that the defendant kept and used the iron, and is bound to pay what it was worth. There was no warranty for any special purpose.”

This is a correct statement of the law: “ If a thing be ordered of the manufacturer for a special purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose. This principle has been carried very far. It must, however, be limited to cases where a thing is ordered for a special purpose, and not applied to those where a special thing is ordered, although this be intended for a special purpose: 1 Pars, on Oont. 586-7.

Connected with the general question there are two late important decisions: The Youghiogheny Iron Company v. Smith, where the opinion was by my brother Sharswood, and which is reported in 16 P. F. Smith 340, and Osborn v. Hart, 23 Law Times R. N. S. p. 851 in the Exchequer, decided 11th January 1871.

Judgment affirmed.


text:
    Freeman’s Appeal.
    1. Letters testamentary on the estate of a resident of New Jersey in that state and also in Pennsylvania, were issued to executors residing in the latter state. By the settlement of their accounts in New Jersey, a balance of assets in that state was shown for distribution. An Orphans' Court in Pennsylvania has not jurisdiction to compel distribution.
    2. An executor of a foreign state is not allowed to take assets in Pennsyl- . vania and carry them out of the state for administration and distribution. Per Almson, P. J.
    3. An executor in Pennsylvania derives his authority to collect £^nd distribute the assets here by virtue of the letters here granted, and of these alone can he be called to render an account in this forum. Id.

    4. Because executors are subject to the Orphans' Court as to some assets they are not so as to all. Id.

    5. The domicil of the testator governs the form and construction of his will as to his personal estate and its distribution.
    March lOtb 1871. Before Thompson, C. J., Read, Asnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from tbe Orphans’ Court of Philadelphia: To January' Term 1871, No. 140.
    The proceedings in this case originated April 15th 1870, in the petition of Marcia C. Freeman, a daughter and legatee of Isaac Brown Parker, deceased, for a citation to Frederick Watts and John Brown Parker, executors, &c., of said deceased, to show cause why a decree should not be made ordering them to pay over to her the “sum of $272,749.27, or whatever other sum may be justly due to her out of the balance for distribution ” of the estate of the decedent. The whole of the case sufficiently appears in the following opinion of Judge Allison, the reasons in which were adopted by the Supreme Court.
    “ The petitioner, Mrs. Marcia R. Freeman, is a daughter of decedent, and a legatee and devisee under his will, which was proved before the register in this city, on the 80th day of November 1865, and had been proved in the county of Burlington, state of New Jersey, on the preceding 5th day of October.
    “ The executors having been cited by two of the heirs, filed two accounts with the surrogate of Burlington county, showing that there was in their hands for distribution, on the 81st day of December 1869, $1,457,394.58.
    “ The petitioner asserts that the assets which make up said balance are in the custody and control of the executors, one of whom resides in this city, and the other in Carlisle, in the state of Pennsylvania, and that she is domiciled in Philadelphia.
    “ The petitioner also alleges, that under the will of her father she is entitled to a portion of the aforesaid balance for distribution, amounting to $272,749.27 or thereabouts. She therefore prays for a citation to the executors, John Brown Parker and Frederick Watts, directing them to show cause why a decree should not be made ordering them to transfer to her a portion of the balance for distribution which is due to her.
    “ The answer assigns for cause against the order which the petitioner seeks to obtain, chiefly that a considerable portion of the assets can only be distributed by a decree of the proper court of the state of New Jersey, because, being assets which were held in New Jersey by the'testator at the time of his death, they are properly and of right distributable in accordance with the law of the state in which they lie, which is also the law of the testator’s domicile, Mr. Parker, at the time of his death, and for many years prior thereto, being a resident of the aforesaid county of Burlington.
    “ This brings up for decision the power of the court to take jurisdiction of the property of a decedent found in another forum, and bring it into Pennsylvania for administration and distribution.
    “ The powers and duties of executors are defined by, as they are derived from, the Acts of Assembly relating thereto. That of l14th June 1836, Purd. Dig. 768, provides that the executors over whom jurisdiction can be exercised are those who derive their authority from the ‘ registers of the respective counties,’ and in Fretz’s Appeal, 4 W. & S. 438, the Supreme Court have said: ‘ Its provisions relate solely to persons acting in a fiduciary capacity by virtue of a will, or appointment by the register or Orphans’ Court having a jurisdiction of the estate of deceased persons.’
    “ We do not allow an executor or administrator of a foreign state to come into Pennsylvania, and by virtue of his authority derived from another jurisdiction, collect the assets of the estate in Pennsylvania and carry them out of the state for administration and distribution. And where an executor removes from the state, the Orphans’ Court having jurisdiction of his accounts are authorized to vacate' his letters testamentary, and award new letters, to he granted by the register having jurisdiction, upon such security as the court may think proper: Section 27 of the Act of March
    29th 1832. And in the case of an administrator, non-residence is a cause of disqualification, by the express terms of the 27th section of the Act of March 15th 1832. In Sarkie’s Appeal, 2 Barr 159, the Supreme Court so ruled.
    “ By the 16th section of the act last cited, it is provided, if any register shall grant letters testamentary to any person not being an inhabitant of this Commonwealth, without taking the proper bond and sureties, the letters so granted shall be void, and an executor acting under them shall in all respects be treated as an executor in his own wrong, and the register and his sureties are made liable to pay all damages which shall accrue to any person by reason thereof.
    “ These several Acts of Assembly make it clear that by our law an executor derives all his authority to collect and distribute the assets of an estate which may he found within this jurisdiction, by virtue of the letters which are here granted, and that it is of these assets alone that he can be called on to render an account in this forum. We do not think the position a correct one, that because executors are subject to the Orphans’ Court as to any of the assets, they become so as to all. This would be to confound jurisdiction, and would inevitably result in a conflict of authority, which for every reason of order, in the settlement of an estate, and of safety to the person charged with the performance of such a trust, should be avoided. It is an argument which answers and defeats itself, of which the case before us is a clear illustration. The testator died possessed of property situate in five different states. If the principle contended for by the petitioner is a sound one, it follows that we have as many separate jurisdictions, each having control over a part of the assets of the estate, and by reason of such control, drawing to itself all the remaining portions, and as to the whole making separate and possibly conflicting decrees, both as to settlement and distribution. There are already two accounts filed by these executors upon compulsion, at the instance of heirs and legatees in New Jersey, as well as in Pennsylvania; the former of these accounts has been audited and stated by the surrogate of Burlington county, notice of which has been given by publication, and no objection having been made to them, a decree has been entered allowing the same as reported. The respondents say they are advised by counsel learned in the law in New Jersey, that said decrees are in accordance with the regular practice of the Orphans’ Court of that state, preliminary orders, that they are judicial determinations, that all the items with which the accountants charged themselves, as well as all of the items for which they have claimed credit, and also that the balance resulting therefrom, are correct, and allowed to remain as stated, but that said decrees are neither final nor distributive.
    “ It is further stated by the respondents, in their answer, that it is the practice of the courts of New Jersey to make a final and distributive decree upon the motion of any one in interest upon an account thus stated and settled.
    “ Taking this as a correct statement of the facts and of the law, it shows two things: that a portion of the assets which the petitioner asks may be brought into distribution here, so far as their settlements and allowance go, have already passed under the jurisdiction and decree of a foreign tribunal; and also that that which is asked to be done by us Mrs. Freeman can have done by application to the courts of Burlington county.
    “It may be objected that in the accounts filed in New Jersey, assets which were collected elsewhere are taken into those accounts, and that the same objection may properly be made there to distribution of the estate as settled by the decrees of the surrogate, that is now made to the claim of the petitioner to have all of the estate brought here for distribution. But it is a sufficient answer to this suggestion that the petitioner had legal notice of the proceedings in the courts of New Jersey, and that she has allowed the decrees of settlement to go without objection, and that if any injury is to follow from the preliminary decrees, as they now stand, it is not too late to apply to the Orphans’ Court of Burlington county for relief, as against the orders and determination of the surrogate. Nor is the principle, which we believe to be the true one in a case of this kind, without authority for its support. The cases cited by the counsel for the respondents are in affirmance of it. See Selectmen v. Boylston, 2 Mass. 384; Doolittle v. Lewis, 7 Johns. Oh. Cas. 45, 47; Dawes v. Boylston, 9 Mass. 337; Parsons v. Lyman, 20 N. Y. Rep. (Court of Appeals) 103.
    “ The case now before us is not to be confounded with one in which assets have been collected in the forum of an ancillary administration, when it becomes a question of judicial discretion, whether they shall be distributed in the forum in which they were raised, or remitted to the administrator of the domicil, to be disposed of there according to the law of the domicil, which as to personal property, is the rule of distribution everywhere. In a case of that kind, the case turns not on the fact of jurisdiction, but upon a determination of whether in the exercise of a wise judicial discretion, the funds sought to be taken to another forum, shall be allowed to go there or not. This is settled in Dent’s Appeal, 10 Harris 514; Stokeley’s Estate, 7 Id. 476; Mothland v. Wireman, 3 Penna. R. 188; and in Harvey v. Richards, 1 Mason 408. The application before us is in effect to reverse the rule, which is, unless the facts of a particular case require a ■ different course to be taken as to distribution, that after payments of debts and expenses, the assets shall be remitted to the administrator of the domicil for distribution. This is the doctrine in Stokeley’s Estate, cited above: and in Dent’s Appeal, the application to compel the ancillary administrator to transmit assets to an administrator of the domicil who resided in Washington, D. C., was refused on the specialties of that case; one of which was, the consent of the original administrator to the appointment of the administrator in Pennsylvania, and that all the claimants objected to a transmission of the funds to Mr. Dent in Washington.
    “ The domicil of the testator at the time of his death is to be regarded as the place of the principal or original administration of his estate, and if this were a request to send the balance of the assets to New Jersey for distribution, it would be entitled to be regarded with greater favor than the one we are now considering, at least so far as the personal property is concerned, this kind of property having no situs in contemplation of law. It is attached to the-owner’s person, whatever he is, and when he dies it descends according to the law of succession which prevails at the place of his domicil.
    “The respondent, John Brown Parker, asserts in his answer that the sum claimed by Mrs. Freeman is about $60,000 or $65,000 in excess of her entire interest in the estate, which of itself would render it impossible for us to make the order prayed for at this time; the true balance due to her must first be ascertained before there can be any order made to pay. The respondent also expresses his readiness to pay over to the petitioner the portion of Pennsylvania assets due to her, upon her entering the requisite security to protect the parties in remainder, which she has not yet done.
    “ Other reasons might be assigned in support of the view which we take of the claim of Mrs. Freeman, but those already stated we deem of themselves sufficient, and therefore dismiss the application.”
    Mrs. Freeman appealed and assigned the decree dismissing her petition for error.

      May 8th 1871,

      B. N. Willson and F. 0. Brewster, Attorney-General (with whom was Q. II T. Oollis), for appellant,
    referred to Act of June 16th 1836, § 19, Pamph. L. 792, Purd. 764, pi. 8. The courts have asserted their power over assets collected under foreign letters, and even when the custodian had no ancillary authority: Swearingen v. Pendleton, 4 S. & R. 389; Evans v. Tatem, 9 Id. 252; Gulick v. Gulick, 33 Barb. 92; Mamon v. Titsworth, 18 B. Mon. (Ky.) 582; Baker v. Smith, 3 Metc. (Ky.) 264; Campbell v. Tousey, 7 Conn. 64; McNamara v. Dwyer, 7 Paige 239; Selectmen v. Boylston, 2 Mass. 384. Courts claim the power to exercise their discretion in respect to what is due to the tribunals of another state: Dent’s Appeal, 10 Harris 514; Mothland v. Wireman, 3 Penna. R. 185; Stokeley’s Appeal, 7 Harris 476; Bryan v. McGee, 2 W. C. C. R. 337. All funds of the estate in an executor’s hands are trust funds: Abbott v. Reeves, 13 Wright 505 ; Warner’s Estate, 2 Whart. 299; Innes’s Estate, 4 Id. 184. “ Where a testator makes a will and appoints executors in two different countries, the executor of the domicil is not responsible for moneys received by the foreign executor, but which never came into his own hands:” Gaines v. Spann, 2 Brockenbrough 83.

      S. Sanson and Cf. W. Biddle (with whom was D. Dougherty), for appellees.
    The grant of letters in one state does not make the executors or administrators subject to its courts for other assets collected by virtue of letters from another state: The Selectmen of Boston v. Boylston, 2 Mass. 392; Doolittle v. Lewis, 7 Johns. Ch. Cas. 45; Dawes v. Boylston, 9 Mass. 335; Parsons v. Lyman, 20 N. York R. 103. In New Jersey a legatee seeking distribution after the balance is ascertained, must file a bill in equity: Eakins’s Estate, 5 C. E. Green’s Rep. 481; Salter v. Williamson, 1 Gr. Ch. Rep. 480. This case is not to be confused with those in which legatees in Pennsylvania apply for distribution of such of the assets as have been collected by authority of letters issued in Pennsylvania, and before such assets are sent to the forum of the testator’s domicil: Mothland v. Wireman, 3 Penna. R. 188; Stokeley’s Estate, 7 Harris 476, and Dent’s Appeal, 10 Id. 514. This is an application that the Orphans’ Court of Philadelphia decree distribution of assets in another state, collected by process out of a foreign court, and over which the former court never had or claimed power or authority: Evans v. Tatem, 9 S. & R. 252. The executors cannot withdraw New Jersey assets from that state: Aspden v. Nixon, 4 How. 467.
   The opinion of the court was delivered,

by Read, J.

Isaac Brown Parker died in Burlington, N. J., where he was domiciled, on the 10th September 1865, having made his will on the 18th August in the same year, which was admitted to probate by the surrogate of Burlington county on the 5th October following, and letters testamentary were issued to the executors, John Brown Parker and Frederick Watts, who were both citizens of Pennsylvania. On the 30th November 1865, letters testamentary were issued by the register of wills of the county of Philadelphia to the said executors.

A first and second account embracing all the assets of the estate were filed by the executors in New Jersey, and allowed by the Orphans’ Court, but no distribution was made, that according to the practice of that state being done in the Court of Chancery upon a bill filed, praying for a decree of distribution under the will. On the 13th February 1868, the executors filed their first account with the register of wills of Philadelphia county, which embraced only the Pennsylvania assets, which had been also embraced in the New Jersey accounts. This account was audited, the report of the auditor confirmed, and the decree of the Orphans’ Court affirmed by the Supreme Court on the 11th May 1869. On the 27th March 1869, in Parker’s Appeal, 11 P. F. Smith 478, the Supreme Court held that the Pennsylvania assets were not to be transmitted to the executors of the domicil (New Jersey) for distribution, there being domestic claimants within the jurisdiction of the ancillary administration. It will be observed that all the proceedings in the courts of Pennsylvania only embraced and applied to the Pennsylvania assets. There was no attempt or pretence to distribute the New Jersey assets in this state.

On the 15th April 1870, Mrs. Marcia R. Freeman, a daughter and legatee of the testator, presented her petition to the Orphans’ Court, praying a decree should be made, ordering the executors to pay her her share of all the assets of the estate for distribution, including the New Jersey assets, over which the court never had assumed jurisdiction, as well as the Pennsylvania assets, over which they had plenary power which they had exercised.

The simple question was then presented, Had the ancillary administration any rights or power over the New Jersey assets in the hands of the executors of the domicil which are for distribution by the tribunals of that state ? The reasoning in Parker’s Appeal, which shows the ancillary administration should not transmit its assets to the principal administration, á fortiori shows the principal administration cannot be called upon to transmit its assets to the ancillary administration. Upon general principles no such decree could be made by the Orphans’ Court, nor is any such power given to it by the language of the Act of Assembly: Lewis v. County of Chester, 10 P. F. Smith 325. The original will was proved in New Jersey, and remains of record there, and a copy of it duly authenticated was produced for probate to the register here, and letters testamentary were issued to the executors under the 12th section of the Act of 15th March 1832. The 16th section of that act, prescribing the form of bond to be given by a non-resident executor, shows exactly the power of these executors under the letters testamentary issued here: a shall make a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased being within this Commonwealth.”

The domicil of the testator governs the form and construction of his will as to personal estate and as to its distribution, which is made by the appropriate tribunal in each state. It seems therefore to involve an absurdity to ask that the assets of the principal administration .should be transferred to the ancillary ' administration.

The reasons of the learned president judge for dismissing the petition are so satisfactory that

The decree or order is affirmed and appeal dismissed at the costs of the appellant.


author: by Thompson, C. J.

text:
    Smith versus Tome.
    1. The identical matter of an exception should he in the assignment of error; it is not enough that it appear in the bill of exceptions.
    2. Judgments were recovered against J. which were assigned to A., and under them J.’s land was sold to A.; J. retained possession and made improvements. Judgments were recovered against A. and the land was sold to T. In ejectment by T. against J. it might be proved in defence, that the judgments against him had been purchased by A. with J.’s money to protect J.’s land for him, that A, so admitted after the sheriff’s sale; and that he Had conveyed to J., by deed not recorded, with other facts tending to show J.’s ownership of the land and T.’s knowledge before his judgment against A.
    S. These facts did not constitute a parol sale of the land by A. to J. but a trust by parol, the title in the trustee and the cestui que trust in possession.
    4. T. having been informed of this took no better title by the sheriff’s sale under his judgments against A. than A. had.
    5. The limitation under which a parol trust can be enforced, does not apply when the cestui que trust is in possession.
    March 13tb and 14th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas’ of Bradford, county : No. 195, to January Term 1871.
    On the 23d of March 1869, Jacob Tome brought an ejectment against Israel Smith,for three tracts or parcels of land; the first containing one acre, the second containing about 138 acres, part of a tract known as the Sarah Morrison tract, the third a cluster of islands in the Susquehanna river containing about 16 acres. There was an award for the plaintiff from which Israel Smith appealed.
    On the trial, November 8th 1870, before Streeter, P. J., the plaintiff gave evidence by W. E. Oole that the defendant had been in possession of the land for thirty years; he was out of possession for eight years, and then went into possession again.
    The defendant, on cross-examination (by his offer No. 1), proposed to ask the witness,- “If after Israel Smith went back into possession since 1855, he has been in possession ever since.” This was objected to by the plaintiff as not being cross-examination, and also as irrelevant. The offer was overruled and a bill of exceptions sealed.
    The plaintiff then gave in evidence a number of judgments against the defendant, some of which had been assigned to Alan-son B. Smith, defendant’s brother, executions issued on all, the land sold under them, and sheriff’s deed for the land made to A. B. Smith in 1856.
    'Also judgments in 1860 against A. B. Smith, all assigned to plaintiff (Tome). Also a suit in which Bell & Hollenback were interested, and questions relating to the land were involved, and an agreement in that suit between Bell & Hollenback and the defendant and A. B. Smith to refer the controversy to William Elwell and others; they to award the land to A. B. Smith, and assess the damages between Bell & Hollenback and Israel Smith. On the 6th of October 1862 the referees awarded the land to A. B. Smith, and assessed $2631.17 damages to Israel Smith, to be paid by Bell & Hollenback. Also quit-claim deed, February 10th 1863, from Bell & Hollenback to A. B. Smith for the land, and receipt of defendant, April 15th 1863, for $2631.17 for the money awarded. Also amicable revival of judgments between plaintiff and A. B. Smith, December 3d 1864; fi. fa., March 21st 1868; inquisition and exemption waived, December 30th 1868; vend. exp. issued, to which was attached a' notice from defendant forbidding the sheriff to sell, January 28th 1869; land sold to plaintiff and deed acknowledged February 4th 1869.
    The plaintiff then rested, and the defendant offered to prove:—
    2. That when the property in suit was sold by the sheriff of Bradford county as the property of Israel Smith, the defendant, and purchased by A. B. Smith, that the said A. B. Smith was only the trustee of defendant, and had' no actual interest in the land; and that at and immediately after the award made by Elwell, Maynard and Baird, the same relationship continued between the defendant and A. B. Smith, except that the defendant was indebted to A. B. Smith for some advances he had made, and that by agreement between them the defendant was to have the land, took possession of the same, and has continued in possession ever since, claiming the land as his own, exercising acts of ownership over the same, and paying all taxes assessed upon it, and that in the spring following of 1863 the defendant paid to A. B. Smith all that was due him on account of his advancements. This was before any lien of plaintiff against A. B. Smith.

      3. That the judgments against him, given in evidence by the plaintiff, were purchased by A. B. Smith from the said plaintiff in said judgments under an agreement with said judgment-creditors made with Israel Smith, the defendant, and that the said Israel Smith’s money or property paid for said judgments so assigned to the said A. B. Smith, and that said A. B. Smith used said judgments for the purpose of protecting and perfecting the defendant’s interest in the lands in question ; and that said A. B. Smith, when he purchased at sheriff’s sale the land in suit, under and by virtue of said judgments, and after he had acquired the sheriff’s title as aforesaid, admitted that he took and held the title for Israel Smith, and that he was doing so to enable his brother Israel to hold the land.
    To be followed by evidence that after the sheriff’s sale Israel Smith continued in possession of the land, making valuable improvements, claiming the land as his own, and so admitted by said A. B. Smith, and that Israel Smith has so continued up to the present time. That at the time of the submission of disputes to referees, Elwell, Baird and Maynard, in which it was stipulated between the parties that the land should be awarded to A. B. Smith; that it was then agreed and understood by and between A. B. Smith and Israel Smith, that upon awarding the land to A. B. Smith, he, the said A. B. Smith, was to hold the same as before the submission for the use and benefit of the said .Israel Smith, and in pursuance of such agreement when the land was so awarded, said A. B. Smith told Israel, “ Now go down there and go to work and make you a home — the land now belongs to you —and I will make you a deed for it when you pay me for my costs and expenses.” To be followed by evidence that on the 8th of May 1865, by writing, he did so convey the land to the said Israel Smith, and that the money and expenses laid out and expended by A. B. Smith for Israel, in pursuance of their agreement, has been fully paid to the said A. B. Smith; and that in the spring of 1863, the spring after the award of referees, the defendant informed the plaintiff of his owning the land and the agreement he had made with A. B. Smith, and that the defendant was going to repair the mills, and to expend a large amount of money upon said property, and for that purpose said Tome lent to the defendant $100, which was expended in furnishing materials for repairing said mill, and in pursuance of such talk with said Tome, and with the full knowledge and consent of said Tome, the said defendant did expend a large amount of money in making such improvements.
    The court (Streeter, P. J.) rejected these offers and sealed bills of exception.
    The verdict was for the plaintiff.

      May 8th 1871,
    The case is so fully presented in the opinion of Thompson, C. J., as. to require no further statement.
    The defendant took a writ of error, and assigned errors as follows:—
    1. The court erred in- rejecting the evidence contained in the defendant’s written offer No. 1.
    2. The court erred in rejecting the evidence contained in defendant’s written offer No. 2.
    8. The court erred in rejecting the evidence contained in defendant’s written offer No. 8.

      P. Smith and II W. Patríele, for plaintiff in error.
    When the purchase-money is furnished by one, and the title taken by another, there is a resulting trust in favor of the one advancing the money: Edwards v. Edwards, 3 Wright 377. The evidence offered was part of the res gesta: Kelpin v. Kelpin, 1 Myln. & K. 537; Tritt v. Crotzer, 1 Harris 457; Hill on Trustees 97. The declarations of A. B. Smith after the transaction were evidence in confirmation of the arrangement between the parties: Strimpfler v. Roberts, 6 Harris 283; McBarron v. Glass, 6 Casey 135; Clark v. Trindle, 2 P. F. Smith 492. It was an act of bad faith in A. B. Smith to receive the purchase-money from Israel under an arrangement to purchase the property for him, and then repudiate the arrangement: Barnet v. Dougherty, 8 Casey 371; Lynch v. Cox, 11 Harris 265; Harrold v. Lane, 3 P. F. Smith 268. Tome stands on no higher ground than A. B. Smith: Shryock v. Waggoner, 4 Casey 480; Garrard v. Pittsburg and Connellsville Railroad Co., 5 Id. 158; Lloyd v. Lynch, 4 Id. 419; Leach v. Ansbacher, 5 P. F. Smith 85.

      XI. Merewr, for defendant in error.
    The payment of the purchase-money by the cestui que trust subsequent to the acquisition of the title by the trustee is insufficient to create a resulting trust: Barnet v. Dougherty, 8 Casey 371. An admission is insufficient to divest a previously acquired estate: Edwards v. Edwards, 3 Wright 369; Sample v. Coulson, 9 W. & S. 62; Fillman v. Divers, 7 Casey 429; Boynton v. Winslow, 1 Wright 315.
   The opinion of the court was delivered,

by Thompson, C. J.

It seems to us that nothing can be clearer, as it appears from the history of this case, than that there was error on part of the court below in the rejection of the defendant’s third .offer of testimony. This offer virtually includes the second, which was also rejected, and needs not be discussed separately.

It is quite true, as stated in the argument of the defendant in error, that the assignments of error in this case are not according to the rule of court, as construed in Burkholder v. Stahl, 8 P. E. Smith 371, and might he disregarded by this court. We have concluded, however, to grant the counsel of the plaintiff in error a dispensation in this particular case, upon the excuse made, and their promise to do better in future. But this liberality must not be relied upon to cover cases in which the excuse is less cogent than it was here. The error of these assignments is in omitting the identical matter of the exception from the assignment itself. It is not sufficient that it appears in the bill of exceptions. There it is historical — in the assignment of error it is a material part of the pleadings in this court, and cannot be legally omitted: Burkholder v. Stahl, supra.

Now, as to the 3d assignment of error: Israel Smith, the defendant below, offered to prove that the land in controversy was his own by purchase, and possession for some thirty or forty years. That in 1855 he became embarrassed, and his brother, A. B. Smith, under whom Tome, the plaintiff, claims, purchased up the claims of certain creditors, with Israel Smith’s money, and obtained judgments thereon against him, and sold the property and bought it in on these judgments, agreeing to hold title for his use ; he, Israel, remaining in possession, making improvements as the owner thereof all the while, and afterwards. In 1855, after the judgments obtained by A: B. Smith, if we mistake not, Israel Smith pledged the land by deed as security to Bell, Ilolienback & Co. for money loaned to improve the property. In 1862 there was a final settlement by arbitrament between Bell, Ilolienback & Co., and A,. B. and Israel Smith, and of certain suits between the former and Israel Smith. In this submission to arbitration, it was agreed that in the event that Bell, Ilolienback & Co.’s claim was satisfied there should be a reconveyance of the land by them to A. B. Smith, who at the time held the sheriff’s deed of the property in trust for Israel Smith; and he agreed to hold the title on the same trust as he was holding the sheriff’s deed. The arbitrament resulted in finding a balance due from Bell, Hollenback & Co. to Israel Smith, of $2605.58, and an award of the reconveyance of the land, according to the terms of the submission, to be made by Bell, Hollenback & Co. to A. B. Smith, and this was accordingly done about the date of the award. In 1868 the plaintiff below, it is alleged, in collusion with A. B. Smith, procured an assignment of some judgments against him, revived 'them by consent, issued executions on them against the defendant, A. B. Smith, who waived inquisition, and agreed to a condemnation of the lands in question, in possession of Israel Smith, and proceeded to a sale of them on a venditioni, and bought them in and procured a sheriff’s deed therefor on the 4th of April 1869. At the sale, the defendant Israel Smith gave notice of his -claim to the lands, and forbid the sale. All this is contained in the defendant’s third offer, and more, to wit: that A. B. Smith agreed to reconvey the title he held in trust, by virtue of the deed from Bell, Hollenback & Co. to Israel Smith, when he should pay him some costs and expenses incident to the trust; that he did pay the same, and in 1865 A. B. Smith did reconvey the land, and that the plaintiff, long before his judgment against A. B. Smith, was informed by Israel Smith how the land was held by him, and that A. B. Smith had no interest in it.

If these facts were substantially established, it cannot be doubted that they would constitute a good defence against the title of the plaintiff below. It was not the case of a parol sale of lands by A. B. Smith to Israel Smith, and within the Statute of Frauds and Perjuries. It was a trust by parol; the title in the trustee, and the possession in the cestui que trust. If the plaintiff below was informed of this before he proceeded, he would take no better title than that of his judgment-debtor. This is too familiar to require a reference to authorities to prove. As he derived title through him, he could attain no other or greater than such as he had. If he had notice of the reconveyance by A. B. Smith to Israel, as was offered to be proved, although not on record, the defendant being in possession, manifestly he would acquire no title under A. B. Smith. If he could, any man’s property might be sold for any other man’s debt. If he had not notice of this, but had of the trust "m A. B. Smith, then he would only be invested with the title of the latter. This being so, he could not recover possession any more than could A. B. Smith, and he certainly could not. We held in Clark v. Trindle, 2 P. F. Smith 492, and since, that the limitation within which a parol trust can be enforced, did not apply to a case where the cestui que trust was in possession in execution of the trust. That was Israel Smith’s position, not only when the trust originated, and for years after, but by the declarations of A. B. Smith offered to be proved after he acquired a title from Bell, Hollenback & Co. The third error is therefore clearly sustained, and as it embraces the second, we need not further notice this error.

I think the rule which constitutes cross-examination, and which is discretionary to some extent with the court, was very rigidly administered in rejecting what constitutes the first assignment of error. We would not reverse for this alone, for the defendant might have called and asked the witness as his own, the rejected question, and there could hardly be an objection to that. But for the reasons given, this case must go to a retrial; both law and justice seem to demand it. We see nothing further which needs discussion in this ease.

Judgment reversed, and venire de novo awarded.