author: Huston, J. Tod, J.,

text:
    ROBERT KING and WIFE, appellants, against SAMUEL MORRISON, administrator of JAMES MORRISON, deceased, appellee.
    J. M. obtained patents for his real estate, and executed to the commonwealth mortgages for the purchase money, and died’: administration upon his estate’ issued to his’ son. The real estate was divided! appraised, and taken by the son, and the other children, in' purparts of unequal quantity and’-value. It was- valued-at its full value, without any deduction on account of- the purchase money. The administrator paid the purchase money out- of the personal estate.-

      Held — That the payment was a good one, and the administrator entitled’ to a eredit for it.
    Where personal estate is appraised, and a part taken by the heirs-at the appraisement, and a part sold at an advance upon the sum at which part was appraised, the administrator will not be-charged with a proportional advance on the goods retained; without any evidence that the goods retained were of greater value than their appraised price.

      Query. — Under what circumstances should an administrator be charged with an advance on goods so taken?
    J. M. died in 1810, having in his possession a bond on his brother D., given in 1794-, which come to the hands of the administrator, who with D. in 1811, although the cause of action exceeded §100, entered, before a justice of the peace an amicable action, and referred all matters in variance to referees, who reported in favour of B.; from this the administrator appealed. In 1814, the Supreme Court decided, that a justice had not jurisdiction by amicable action, and reference, where the cause of action exceeded {$100. This decision was published in 1818’; the appeal was then quashed: O', obtained judgment by scire facias reviving the original’judgment in his favour before the justice. To this the administrator issued a certiorari, reversed the judgment for want of jurisdiction in the justice, and to the next term,, in 1820, brought suit on the bond and recovered judgment.
    B., who in 1810 was solvent, when judgment was rendered against him had become insolvent, and the debt was lost. By refering to the record of the proceeding in court, it appeared the admistratorhad eminent counsel.

      Held — That although the proceeding before the justice had been a mistake, the administrator was not liable for the debt which had been lost.
    There is no case where trustees have acted with good fáitli, and under the advice’of counsel, in which they have been- held responsible.
    J. M. left a slave of advanced age, who by the advice of appraisers, and family, was not appraised, and lived with family till they separated, and with widow until her death, and since that lived with administratoi-. At the time of the account taken, 1827, she was of no value, and the administrator agreed to keep her during her life. Held — That under the circumstances of the case the administrator was not- chargeable with the value oflier services.
    This was an appeal from the decree of the Orphans’ Court of Lancaster county, passing and confirming the administration account of Samuel,- administrator of James Morrison, deceased.

      James Morrison, died in December, 1810, seized of a large real, and possessed of considerable personal estate. In his lifetime he bad procured patents for his land, and executed to the State two mortgages for the purchase money, &e. Administration on his estate was committed to his widow, Eleanor, and his eldest son, Samuel, the appellant, (who survived his mother,) in March, 1811. An inventory of the personal estate was filed, a part of it was taken by some of the heirs, and a part sold by the administrator, who filed a vendue paper, from which it appeared there was a considerable advance on the property sold.
    In 1811, a proceeding was had in the Orphans’ Court upon the real estate, in which it was divided into six parts; and appraised at its full value, making no deduction -for the money due for patenting the land. The purparts into -which it was divided were unequal in quantity and value. Samuel, the eldest son, and the administrator, took the largest and most valuable purpart: -three others ■were, at the same time, taken by three other of the children of the intestate. Of the two parts which remained, one was taken, in 1812, by another child, and the other by the appellant, in right of his wife, in 1817. Several of the children were minors at the death of the intestate, and among them the appellant’s wife, who was married to appellant in 1817. The family lived together at first, hut removed as they severally got married. The widow died in 1827.

      James Morrison, at the time of his death, held a bond on his brother Daniel, given in 1794, which came into the possession of the administrators, and which, at the time the inventory was taken, was admitted to be just by Daniel. In 1811, an amicable action was entered before David Montgomery, Esq. a justice of the peace, by the administrators and Daniel Morrison, and all matters in variance referred to referees. The referees reported three hundred and twenty-six pounds eighteen shillings and seven pence, in favour of Daniel Morrison, and the justice, on the 11th day of January, 1812, entered judgment on their report; from which, on the 13th of January, the plaintifis, the -administrators, appealed to the court of Common Pleas.
    In 1814, the Supreme Court of the State, in the case of Brenneman v. Qreenawalt, decided, that the fourteenth section of -the hundred dollar law, does not authorise a reference to men, in a suit before a justice of the peace, where the sum in controversy exceeds one hundred dollars. This case was published in 1818, in the first volume of Serg. fy Razóle, page, 27. On the 16th June, 1818, the appeal, in the case of Morrison’s administrators against Daniel Morrison, was quashed.

      Daniel Morrison, obtained a scire facias to he issued, by the justice, upon the judgment in his favour, on which, in June, 1819, judgment was entered. To -this judgment, the administrators issued a certiorari. The judgment -was reversed on the ground of a want of jurisdiction in the justice: and the administrators, to September .term, 1820, brought suit on his bond, against Daniel Morrison, and recovered a verdict and judgment against him for two thousand nine hundred and fifty-three dollars and eighty-five .cents,

      Daniel Morrison was in good circumstances, but having, on the 3d of June, 1812, sold his land in Lancaster county for eight thousand dollars, he afterward became insolvent, so that when execution issued against him, on this judgment, but one hundred and seventy-three dollars was made.
    It was in proof, by the record, that the administrators in this controversy with Daniel Morrison, had able counsel.
    Several administration accounts had been filed — the first in 1816, •the second in 1820, (in each of these the widow was one of the accountants,) and a third in 1827, by Samuel Morrison, as surviving .administrator. References to auditors had taken place in the controversies with the administrator, Samuel, who was the acting representative of the estate; and reports had been made in different stages of the business, one of which had never in any way been returned, or made a part of any proceeding in court.
    As neither of the two first accounts purported to be a final settlement of the whole estate, nothing was considered as concluded; .and in May, 1829, the whole matter was referred to auditors, to re-examine each of the accounts, and report on each.
    The auditors made a report, which being confirmed, was brought by .appeal, into this court, and the following exceptions here taken, .and relied on,
    1st. That the administrator should not have been credited with the sum of one thousand three hundred and ninety-seven dollars and sixty-five cents, paid by him to the State, for patenting the land,
    2d, That he should have been charged with an advance on the goods taken by the heirs at the appraisement.
    3d. That he should have been charged with two thousand nine hundred and fifty-three dollars and twenty-one cents, (and interest thereon,) the .amount of the judgment recovered against Daniel Mrrrison,
    4th. That he should have been charged with the value of a negro woman, (the property of the intestate,) who had not been included in the inventory.

      Montgomery and Porter, for the appellant.
    1st. The administrator should not have been credited with the amount paid by him for patenting the land. The trust, conferred by administration, is confined to the personal estate; the form of the bond given by the administrator, for the faithful discharge ,of his duty, refers to that alone.

      An administrator is not entitled to credit in his administration account, for any money expended on account of the real estate, or the maintenance of the children. MEínney v. Barber’s Administrator, 8 Serg. Ramie, 347.
    Under the intestate laws, debts due to the commonwealth, are to be last paid: but here the administrator reversed the order and paid this debt; and suffered other debts to remain and interest to accumulate on them.
    The purchase money due to the commonwealth is a charge on the land, and not personal; and is expressly decided not to be payable by executors out of the personal assets. Helfenstein, administrator of Waggoner v. Waggoner, 13. Serg. Sf Rawle, 307.
    Nor is it just that the personal estate should be so applied, for here the children of the intestate took unequal shares of the real estate, and the discharge of this debt out of the personal estate, will therefore operate unequally; giving the greatest advantage to Samuel, the appellee, who has the largest purpart of the land. It cannot, too, be endured that the personal estate should be swept from the widow, who is a favorite of the law, to exonerate the real estate.
    2d. They contended that the administrator should be charged with an advance on the goods retained by the children, which should have been ascertained by calculation; and should be in proportion to the advance of sales on the goods actually sold.
    If an executor omit to sell goods, he is answerable for their full value. Toller on Ex. 427.
    Any other doctrine would open a door to fraud; permitting the administrator, after the’appraisement, to select such articles of personal property as he might find to be worth more than the amount of their valuation.
    3d. The negligence of the administrator, is the ground on which he ought to be charged with the bond due by Daniel Morrison. The negligence of which he has been guilty is supine negligence, of the grossest kind. He is bound by his duty, as administrator, to collect the debts due the estate, and settle his account, within one year, from the time administration is granted to him.
    Here, years are suffered to elapse before he brought suit, and the consequence is the loss of the debt. At all events he should have secured the debt by obtaining judgment upon it.
    He derives no protection from the proceeding before the justice of the peace. That proceeding was coram non judice, and a mere nullity. But besides, it was a voluntary submission to reference, from which, if a loss ensued, he is bound to bear that loss. Toller, on Ex. 424. He ought to have sought the ordinary forum, which alone could ensure his safety from responsibility. Here too, after the decision in the case of Brenneman and Greenawalt, he might-have discontinued his appeal, brought suit, and secured the debt.
    if an administrator delay to bring suit on a bond, he is liable. Gordon's Law of Decedents, 264.
    4th. They contended that the administrator should be charged ■with the services of the negro woman, who had resided with the family: that the appellant was married in 1816, and had not participated equally in the benefit of those services.

      W. Hopkins for the appellee,
    referred to the cases of Buckley v. Ellmaker, 13 Serg. <£• Ramie, 76. Harker v. Elliott, 7 Serg. 4* Ramie, 284, and argued—
    1st. The debt due the commonwealth for patenting the land, was a debt by mortgage, created by the intestate, which he was bound to pay. It is a debt by specialty, and must be paid out of the personal estate, although there be no bond or covenant to pay it. Gordon on Decedents, 175. King v. King, 3 Peer. Williams, 358.
    In -the order of paying the debts of decedents, bonds and specialties are in the fifth class. Pwdon, 376, 14th sect, act of 19 th April, 1794.
    But this order applies only to cases of deficiency of assets, which does not exist here, and if it did, the mortgage would place it in the class of specialties and to be paid out of the personal estate. In the case of Helfenstein’s Adm’r v. Waggoner, there was no mortgage, and this constitutes the distinction between that case and this.
    Interest was chargeable on the debt due to the commonwealth, and therefore there was no difference, inthis respect, between the payment of this debt and any other.
    2d. It does not follow because there was an advance on the goods sold, that there would have been an advance on the goods retained by the family. These goods are usually such as do not sell well; consisting, for the most part, of second hand household furniture.
    3d. Daniel Morrison’s bond was not put into the inventory of the estate. At the time the inventory was taken, the heirs acquiesced in not putting it into the inventory, as is proved by a witness examined. Hart v. Ten Eyck, 2 Johns. Ch. R. 80. Orr v. Kaines, 2 Vesey, 194.
    A trustee is not chargeablejwith imaginary values, or moreThan he has received, unless guilty of gross negligence, amounting to wilful default. A trustee is not responsible for an error of judgment. Osgood v. Franklin, 2 Johns. Ch. R. 27. So where a trustee goes by the advice of counsel, and acts with good faith, and where the confidence reposed by him was the same as that which had been extended by the intestate, he is not liable.

      It may bave been an error of sharp-sighted judgment, but for this a trustee is not answerable* Thompson v. Brown, 4 Johns. Ch, R. 619, 26, 27.
    The bond was given by Daniel,- to his brother in 1794, and was" not sued by him up to the time of his death, in 1810; so that the administrator did but continue the ancestral confidence, which had been reposed, by his father* in his uncle.
    But the administrator did seek a judgment. Daniel claimed a large set off, and by mutual consent the amicable action was entered before the justice; and the matters in controversy submitted to reference. Under the act of 1810, giving jurisdiction to justices of the peace, it was generally supposed, at the bar, that a justice' might, under the fourteenth section, entertain jurisdiction of a cause of action, exceeding one hundred dollars in this way. .This impres-sion was not ascertained to be erroneous, until the case of Brenneman v. Greenawalt was decided; and although this case was decided in 1814, it was not published until 1818, and did not, until then, become generally known to the bar.
    During all this time, the proceeding instituted before justice Montgomery was pending, and could not, owing to the great amount of business in the court of Common Pleas of Lancaster county, be disposed of: and, during all this time, the administrator proceeded by the advice of counsel.
    When the case of Brenneman v. Greenawalt became known, the appeal was quashed; but the judgment before the justice in favour of Daniel Morrison remained unreversed; nor could this be effected until he chose to proceed on it: for no certiorari could be issued after twenty days from the rendition of that judgment.
    But so soon as Daniel obtained a judgment, on the scire facias, which he caused to be issued, the administrator issued a certiorari, reversed that judgment, and having thus removed every difficulty growing out of that proceeding, he brought suit on the bond, and obtained a judgment. If then there were error on the part of the administrator, it was an error of-judgment, there was no lata culpa, and it is clear that for an error of judgment he is not liable.
    4th. The negro woman lived in the family. By the consent of the parties, she was not included in the inventory, and each of the children had a proportion of benefit from her services.

      Reply. The mortgage given for the purchase money of the land to the commonwealth, does not differ the case- It did not change the nature of the debt, it but merely added a more formal security, and ascertained the amount of it.
    It does not follow because the debt due by Daniel Morrison was not put into the inventory, that therefore the administrator is not chargeable with it. It is- not the general practice to put debts into the inventory. There is no proof that counsel were ever consulted, as to instituting the proceeding before the justice. If such had been the fact, it should have been proven by the testimony of the counsel who were employed.-
    Had he brought a suit in court, he would have secured a lien, which could not be effected by the proceeding before the justice.
    The case in 2 Johns. Ch. R. is of a desperate debt, and that in 4 Johns. Ch. R. is of a partner, in whom confidence was placed as such.
    The estate 'will be liable for the support of the black woman, and the administrator should be charged as respects us; for the appellant derived no advantage from her services.
   The opinion of the court was delivered by

Huston, J.

(who recapitulated the facts of the case.) — 1. The first exception is that the accountants claimed, and were allowed, a credit of one thousand three hundred and ninety-seven dollars and sixty-five cents, for patenting the land of the deceased. An act of assembly, passed in 1785, had allowed those persons whose lands were unpatented, to obtain a patent, on giving to the State a mortgage for the purchase money remaining due. James Morrison, in his lifetime, had, under this law, taken patents for his land, and given two mortgages to the commonwealth for the purchase money in arrear. It appeared fully in evidence, that respectable counsel had advised the administrators, that they must satisfy these mortgages; and further, that the inquest, which divided the lands, were apprised of this, and estimated them at so much per acre, clear of these mortgages — all inquests in such cases do so. It cannot be pretended that there was any injustice in paying the mortgage money to the State — for it being added to the price of each parcel, and the amount of the several purparts added together, making the sum total, to be equally divided among the heirs, it is most apparent each child bore;an equal part of this.

But 8 Serg. & Rawle, 347, is cited, in which the court say, the administrator had no right to a credit for money expended on account of real estate. In that case, the widow, who had married again, had kept possession of the farm, and yet charged the children two thousand dollars, for improvements, during about eleven years, being much more than the rents. This was disallowed. There is no question the case was decided rightly — but the expression could not have been used as universally true: for the nineteenth section of the general act concerning intestate’s estates, expressly authorises the administrators, to borrow on mortgage, (giving the premises for security,) any sum of money, not exceeding one-third of the value thereof, or -to sell and convey such part or parts of the said lands, as the Orphans’ Court of the county where the lands lie, shall in cither case, from time to time, think fit to allow, for defraying just debts, maintenance of the children, putting them apprentices, teaching them to read and write, or for the improvement of the residue of the estate, if any be, for their advantage. Now this is to be done, in case there is no personal estate; if there is personal estate, it would seem the same may be done with it: and whatever the law directs administrators to do, may be, and must be put into an administration account. But the account ought to shew the debts to be paid, before any allowance to improve the land, or at least that there will be enough with which to pay them. In this case this was a debt, and peculiarly proper to be paid: for as each mortgage covered about four hundred acres, and that was divided and taken in unequal quantities, and at different prices, it would have' been difficult to apportion the sum each was to pay on the mortgage. The mortgage is a debt of the intestate, and to be paid with the personal estate, in case of intestacy, if administrators can pay it. 3 Peer. William, 358. In this case, under the circumstances, there was no error in allowing, this credit.

2d. exception. The auditors erred in not charging an advance on the personal estate, taken by the heirs at the appraisement.On that part of the goods sold, there was an advance. And if it had been proved that the articles taken at the appraisement, had been sold by those who took them, at an advance, this advance ought to be charged to each heir who took them at such appraisement; but there is no such proof, nor any proof that either of the administrators took any article at the appraisement. The family lived together until they successively married. In such case certain articles are necessary to be bought, or taken at the appraisement. There is no proof how they were divided at the death of the widow, or as each child separated. There was no exception at the time the first or second account was settled, as to this matter, and we see no evidence, vyhieh, at this time, would justify us in supporting this exception, more especially, as it appears to us that this item is, by a mistake, really charged twice in the account, and credited but once.-

3d. exception. The auditors have erred, in not charging the administrators with two thousand nine hundred and fifty-three dollars and twenty-one cents, being the amount of a bond and interest which the intestate held on Daniel Morñson, and which was lost by negligence of the administrators. This is an item of serious amount, and was really lost to the estate; and a witness proved that it might have been collected at the death of intestate, or rather that Daniel was able at that time to pay it, and promised to pay it when he sold his land. By the bye, this witness was at one time an arbitrator on one of these accounts, and then allowed a credit for it.

By the fourteenth section of the act of 20th March, 1810, it is provided, that any justice may take cognizance of any thing made so by this act,-for any sum exceeding one hundred dollars, if the parties voluntarily appear before him for the purpose; and shall proceed for the recovery thereof, by entering judgment if confessed, or if submitted to him by reference. This was understood to mean -if the parties instituted a suit voluntarily, and referred it to arbitrators chosen by themselves, and the justice entered judgment on the award; It was known before, that parties might refer at common law to arbitrators, and were bound by the award; but they often had to sue on the award, and it was supposed that the judgment on the award, by the justice, came in place of an action of debt on the award. In many parts of the State, much was settled in this way. Under this impression, the administrators and Daniel Morrison, submitted their claim, on this bond, to three arbitrators, before a justice. This was in the summer of 1811. Daniel set up a defence as to the whole, and more; and an award was made in his favour for three hundred and twenty-seven dollars, and judgment entered for him. The administrators appealed to court. Two eminent counsel were employed by them. The business in court in this county was greatly in arrear, and a special court appointed, in addition to the regular court, have not yet brought up the business. In 1814, the Supreme Court decided, that such proceedings, before a justice, were illegal and void. This decision was not published, or generally known,, until 1818. Brenneman v. Greenawalt, 1 Serg. & Rawle, 27. Soon after this, the appeal was struck off the docket, and Daniel Morrison issued execution. The administrators took out a certiorari, and reversed the proceedings:_ and before the next term brought suit in court, and recovered; but Daniel Morrison had become insolvent, and the debt was lost. There was no delay in any part of the proceedings, but the proceedings were unfortunately mistaken. It is believed there is no instance where trustees have acted with good faith, and-under the advice of counsel, (and here they had eminent*) in which they have been held responsible. 4 Johns. Ch. R. 619. It is an unfortunate business; but one in which there was neither negligence nor fault. The mistake in the proceeding was not peculiar to them, or to this district. In the district in which I lived, such proceedings were common, andino lawyer questioned their legality, before the case above cited.

4th; This exception embraces several small items, which the referees on the second account had charged to the administrators. No evidence was before us to shew why these charges were made, and as that report was waived by the present submission to auditors, we' do not see how we can decree the administrators to pay those sums. That report had not been confirmed by the court. The bare fact, that one set of auditors made those charges, is met by the fact, that the present auditors rejected them, and without some evidence of their justice, we cannot, say the administrator must pay them.

There is another item under this fourth error: James Morrison left, among other property, a negro woman, a slave. The proof is, she was of air advanced age, was (by the advice of the appraisers and the family,) not appraised; she lived with the family as long as they lived together, and with the widow, till the widow’s death, and since that has gone to Samuel. No exception oil account of this woman, was made to either of the two first accounts. The objection is now made by the husband of the youngest daughter, who was a minor at the time of the appraisemefit. She however married about 1816 or 17, and her husband made no objection then, nor when the second account was filed. Where a family have made arrangements for their own convenience,, or that of their mother, and haye acted on that arrangement so long as from 181,1 till 1827, without objection, an objection then taken,- appears harsh. I do not say such objection will never be sustained in court, but it must be a substantial one to have effect. Minors.-wffi not be bound by arrangements by the elder branches of the family, where they are for the exclusive advantage of the latter, and unjust to the minors, but the objection ought to be made in some reasonable time. In the country, where the female part of the family do the work of the house, the daughters derive as much benefit from the labour of a female slave, as the sons; perhaps a little more. Samuel had, perhaps, the least of the whole family; and as no complaint was made until after the death of the mother, there is little, if any, ground for charging him, with what was of more benefit to the wife of the complainant, than to Samuel: she is now of such an age as to be of no value, and he agrees to keep her during her life. Much respect is paid to family arrangements, if just and reasonable, and especially if long acquiesced in. There are two other exceptions not insisted on, and we confirm the report of the auditors’ so far as it is before us.

Decree affirmed.

Tod, J.,

dissented as to the advance claimed on the goods'taken at the appraisement. This he thought ought to be calculated and charged: and also as to the payment of the mortgage to the State, which he thought ought not to be credited .out of the personal estate.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    ABRAHAM DONER, SAMUEL HERR and SAMUEL HOWRY, against JOHN STAUFFER, CHRISTIAN BRECKBILL and JACOB ESHELMAN.
    IN JüRROR.
    In a case of partnership, the joint effects belong to the firm, and not to the partners, each of whom is entitled only to a share of what may remain, after the payment of the partnership debts, and no greater interest can be derived from a voluntary assignment of his share, or a sale of it on execution.
    A preference exists in favour of the joint creditors of a firm, founded on no merits of their own, but on the equity which springs from the nature of the contract between the partners themselves.
    With the single exception of a joint commission, whenever the partners are not individually involved, the joint creditors have no preference.
    A separate execution creditor sells not the chattels of the partnership, but the interest of the partner encumbered with the joint debts; and the joint creditors have therefore no claim to the proceeds.
    Where the separate creditors of each partner precede by execution, the sale of the partnership effects, under tl;e execution of the separate creditor of one partner, passes the interest of that partner subject to the equity of his co-partner, and the execution creditor is entitled to the price. This equity, together with the remaining interest of the other partner passes by a .sale under execution of his separate creditor, where the purchaser of the effects is the same: and this whether the sales be made consecutively, or at the same time.

      Query. — What would be the effect where there are separate purchasers of the shares of the respective partners.
    Writ of error, to the court of Common Pleas of Lancaster county. ■ j
    This was a feigtjed issue, directed by that court, and joined between the defendants in error, who were the plaintiffs below, (and for whom the verdict past,) and the plaintiffs in error, who were the defendants below.
    It appeared from the evidence in the cause, that Daniel Howry and Benjamin B. Eshelman entered into partnership in a manufacturing establishment, under the firm of Howry and Eshelman. They became considerably indebted. Judgments were entered and executions were issued against each of them. Mraham Doner, Samuel Herr, John Howry and Samuel Howry, had severallyjudgments against Daniel Howry, on each of which an execution issued against him, and was levied on the 9th of August, 1825, on the personal property of Daniel Howry and Benjamin B. Eshelman, as partners in trade.

      John Stauffer, Christain Brechhill and Jacob Eshelman had severally obtained judgments against B. B. Eshelman, on each of which judgments, an execution was issued against him and levied on the I Ub day of August, 1825, on Benjamin B. Eshelman’’s share of the personal property of Benjamin B. Eshelman and Daniel Hozory, as partners in trade. By virtue of these and other executions, the personal property of the firm was sold for the sum of five thousand and seventy dollars and thirty-nine cents, which after payment of the costs, left a balance of four thousand seven hundred and seventy-nine dollars. This balance was paid into court for distribution.
    On a rule obtained by the counsel of Stauffer, Breckbill and Eshelman, to shew cause why the one half of the proceeds of the sale of the firm property, should not be applied to the satisfaction of their executions against B. B. Eshelman, the court decided, that the execution creditors of Benjamin B. Eshelmañt had a legal right to his share of, and interest in the partnership effects of the firm of Hozory. Sf Eshelman, as it stood on the 11th August, 1825, when the executions were levied; and directed this issue, to try what that share or interest was.
    The plaintiffs claimed a moiety or half part of the four thousand seven hundred and seventy-nine dollars, as their share.
    The plaintiffs having closed their evidence: The defendants in support of the issue taken in the cause, offered to prove, that the firm of Hozory 8f Eshelman was entirely insolvent on the 11th August, 1825. That the debts and claims against the said firm existing on the said 11th August, 1825, which were then unpaid, greatly exceeded the whole property of the said firm. That Benjamin B. Eshelman, on the said day, had no interest whatever in the said firm, and that Daniel Hozory, the other partner, is greatly interested in the application of the funds of the said firm, to the payment of the debts of the said firm, as he is answerable, individually and as a partner, for the whole of the said debts. Which offer being objected to, the court overruled the same, and delivered the following opinion, to wit: “I am satisfied that the authorites cited settle the law as it applies to the cases decided, that is to say, to cases where there are separate executions against one partner levied on the partnership effects. But this is a case where the whole partnership effects are swept away by separate executions against each partner, where the creditors at large have no lien. I must say that the principal object in directing this issue was, as it was a case of great importance, to give an apportunity of completely considering and reviewing the law on the subject. But I am very clear that Benjamin B. Eshelman’s interest, or want of interest, cannot be shown by evidence of debts due from the firm, and that the testimony offered relative to the insolvency of the firm, and the interest of Daniel Hozory in the application of the funds of the firm 1 o the payment of its debts, cannot be admitted.”
    To this opinion, overruling the evidence offered, the defendants excepted.

      Although the issue joined was between the separate execution creditors of the respective partners, the counsel for the defence appeared for the joint creditors of the firm, to controvert the right of the separate creditors of Eshelman, to be paid out of the fund in court, before the joint creditors were satisfied: and they alleged, that after the executions of the separate creditors, were levied, Howry fy Eshelman had made an assignment to trustees, for the benefit of the creditors of the firm.
    The only question now1 raised in this- court, upon the charge of (the court below, and the bill of exception, was, whether the sepal rate execution creditors fi Eshelman, had a right to be paid out of 1 the proceeds of the sales of the goods of the firm, before the joint l creditors were satisfied out of that fund.

      Norris, for the joint creditors, denied that the separate execution creditors had a right to the fund in court, for appropriation* The separate creditor cannot withdraw the funds of the partnership, from the payment of the partnership debts to pay his debt. Accounts must be settled between the partners and the world, undone between the partners themselves;, before such creditor cans have the fruit of his execution; he comes in only for the surplus after paying the partnership debts*
    Partners have a lien on the partnership effects; creditors have not. No' spark of interest can be drawn from the firm, by one partner, until the partnership is settled. The partnership fund is pledged for the payment of the partnership debts. The only interest which each partner has, is what remains after the debts are paid; it is the dry mass of property, after the payment of the partnership debts.
    This then being the interest Vested in Eshelman, the plaintiffs below, the separate execution creditors, could take no greater interest, and therefore the joint creditors must be first paid. West v. Skip, 1 Vesey, 293. Id. 244.
    The vendee, is a tenant in common with the surviving partner. Fox v. Hanberg, Cowper, 445. Pearce v. Jackson, 4 Mass. Rep. 242. Taylor v. Fields, 4 Vesey, Jr. 396. He also referred to In the matter of Smith, 16 John. R. 102, and the note to that case, where, the cases on the subject of the proceeding, under an execution, in favour of a separate creditor, levied on partnership effects are collected. Nichol, et al, v. Munfort,4 John. Ch. R. 522. Id. 525. Edy v. Damdson, Douglass, 650, decides, that the sheriff should pay a part of the money levied on the execution of the separate creditor, out of the partnership effects, to the assignee, representing the partnership creditors equal to the amount of the interest of the partnership in those effects. This case is precisely in point. Gow on Partnership, 49. Id. 317.' The right is a lien in favour of part-He also referred to, In'the matter
      ners, Watson on Part. 103. Bank of North America v. M‘Call, 3 Bin. 338.
    An action may be brought by a surviving and solvent partner, to recover money obtained by a separate creditor, out of partnership effects. Bank of North America v. MlCall, 4 Bin. 371. Nox v. Summers, 4 Yeates, 477. The general doctrine is recognized in this case, and here money was made on a separate execution against one partner, and brought into court, and claimed by the assignees of the partners, on a subsequent execution, and the court decreed the money to the assignee. He referred also to M‘Carty v. Errüen, 2 Yeates, 190. Chancery will not stay the execution of the separate creditor, until the partnership debts are taken and liquidated. Moody v. Payne, 2 John. Ch. R. 548. Kuhn v. Nixon, 15 Serg. Rawle, 118,125. Caldwell V. Stileman, 1 Rawle, 212,. 16.
    The fund, is by law, appropriated to joint creditors, and the separate creditors must show that they are satisfied, before such separate creditors can come at it.
    This preference of the joint creditors, as to the partnership effects, is the well settled law of Pennsylvania. The lien of the partner, upon these effects, which gives this preference, arises from the contract of partnership. They are mutually bound, on that contract, for the joint debts of the firm, and if the separate creditor of one partner, could sweep the partnership fund away, great injustice would result to the other partner. His liability to the joint creditors would remain, while the joint property, in which he had an equal interest, would be taken to satisfy the debt of his partner; in which he had no interest, and for which he was in no way liable. All this is prevented by the principle of natural justice, which gives the lien to the partner, and secures the effects to the joint creditors. This does not depend on the bankrupt law, nor is it derived from the system which in England has been adopted under it. That law is silent as to any preference. It arises from natural equity, growing out of the contract of partnership, and is said to exist at common law.
    The sale in our case was in invito, against the consent of the owner of the goods. It is a transfer by operation of law. The sheriff must, under the separate execution, seize the partnership effects, for the partners are seized per mi et per- tout, and the interest of each- cannot be separated. Watson, 98, 72.
    The courts of law in Pennsylvania, as we have here no courts of • equity, are bound to enforce the equity arising in the relation of partnership between the partners. Bell v. Newman, 5 Serg. Sp Rawle, 78.
    Where the land of an intestate is sold by execution, the money is to be distributed according to the order of payment of debts, in. the case of personalty, and the court from which execution issued. is bound to distribute it. Bank v. Slambaugh’s Adm’rs, 13 Serg. <5y Ramie, 299.
    In the case of Edy v. Davidson, the same equitable doctrine was applied to the distribution of money, levied out of partnership effects.
    The mode adopted to' exercise the equitable jurisdiction, in this ease, was a proper mode to effect the object. It is in effect between the partners, although nominally between the separate creditors of each partner. But it is a feigned issue, and no matter who are nominally on the record, the substance is to try the right between all parties.-
    The mode of these feigned issues is not the subject of error. They are to inform the conscience of the court, and the substance only is regarded. JVeffv. Barr 14 Serg. ¿y Ramie, ICO.
    It is not necessary that there should have been an execution in favour of the joint creditors. Their right does not depend on this* but on the lien in favour of the partners.
    The court declined hearing Parke and Montgomery, for the defendants in error.

      Hopkins for the plaintiffs in error.
    The money came into the court by wrong: the whole effects* not merely the right to the surplus after the payment of the partnership debts were sold; although the sheriff could of right sell but that surplus. Hankey v. Garrett, 1 Vesey, 242. West v. Skip, Id. 450. Taylor v. Fields, 4 Vesey, Jr. 390.
    Enough must be left for partnership debts. When the sale took place the partnership was gone. Pierce v. Jackson, 0 Mass. Rep. 242. Cooper v. Chitty, 1 Bur. Rep. 20. Sham v. Tunbridge, 2 W. Black. 1004.
    Here the entire fund was brought into court for distribution among all parties in interest.
    A motion to distribute a fund, in Pennsylvania, is in the nature of a bill in equity, and'comes instead of the audita querela, which has fallen into disuse. It expands itself to embrace all questions involved, and all the parties in interest. The joint creditors had a direct interest, represented 'by the assignees of an insolvent partnership. Their interest, and that of Daniel Howry, is identified; and if these creditors so represented, do not recover this fund, their rights must be destroyed. The fact that th'e assignment was made subsequent to the execution, can have no effect. The assets of the partnership are in gramio legis, until they can assert their rights.
    The issue directed ex mi termini, embraces the question as to the joint creditors, as upon the settlement of the accounts of the firm only, can the share of Eshelman, in the partnership fund be ascertained.

      What is the mode of investigation where-the funds of a partnership are in court for distribution?
    In chancery, where a court of chancery exists* an injunction would issue to stay proceedings at law, and distribution would be made in that court so as to do equity.- ' Lord Mansfield, however,-. thought that where the common law court was in possession of the fund, a resort to a court of equity was unnecessary; but ..that the common law court should distribute it according, to equity. Here' our courts are armed with equitable as well as legal powers, and they have long ago broken legal trammels, and asserted principles-necessary to do equity and justice. Est boni judices ampliari jurisdic^ tionem. Edy v« Davidson,‘ Douglass, 650. Bank v. Stanibaugh’s' Adm. 13 Serg. fy Ramie, 299. In this case the funds were brought into court upon execution, and the court, to do equity, investigated the rights of parties under the fourteenth section of our law relating to intestacy, and decreed in favour of a bond creditor, as to the fund so raised; although the bond creditor-was nó party to the execution, and had no judgment.- -■
    Where there are complicated rights, the court will,- on the application of the sheriff, suspend proceedings until-those rights can be ascertained, in order that the sheriff may make a .correct return. Sham V. Tunbridge, 2.W. Black. 1-064. He referred also, to Knox v... Sumers, 4 Yeates, 477.- : .-
    Where the separate creditor had actually obtained the fund under a judgment,-yet he was not protected by-it from the other partner. Bank v.- MCall,- 3 Bin. 371.
    Where the claim is either by assignment, or under execution, it is only to the surplus after the payment of partnership debts, JVicoll v. Mumford, 4 John. Ch. R. 525. This case contemplates bringing the money made on execution into court, and overrules, in effect, the decision in 2 John.- Ch. R, 548, as tó an injunction to stay a separate creditor, in case of partnership effects'.
    The case of Merely v. Strombarn, in 3- Bos. Sf Pull. 54, is at ’law. In equity it is different, and it is so said in this case; and Lord Mansfield held* that the rule should be the same at law.
   The opinion of the court was delivered by '

Gibson, C. J.

It is settled by a train of decisions in thq Ameri-. can, as well as the British courts', that the joint effects belong to* the firm, and not to the partners, each of whom is entitled only to ■■ a share of what may remain after payment of the partner-.? ship debts; and consequently, that no greater interest .can be derived from a voluntary assignment of his share, or a sale of.-it on exe-i. cution. That a contract which enables the parties to keep a class •of their creditors at bay, and yet retain the indicia of ownership, should not have been deemed within the statutes' of Elizabeth, is at*. tributable exclusively to the disposition universally manifested by courts of justice to- encourage trade; But such as it is, has the contract of partnership been established; and the principle which enables the partners to pledge to each other, the joint effects as a fund for payment of the joint debts, has introduced a preference in favour of the joint creditors, founded on no merits of their own, Sut on the equity which springs from the nature of the contract between the partners themselves. The author of the Commentaries on American Law, vol. 3, page 38, attributes this preference to an inherent equity in the joint creditors themselves, arising from a supposed acquisition of the partnership effects from their means.The opinions of Chancellor Kent, are so justly entitled to deference, that no prudent judge will.differ from him without hesitation; yet I cannot but adhere to the opinion I expressed in Bell v. Newman, 5 Serg. & Rawle, 92, that in-eases of insolvency or bankruptcy, in which- alone the question of priority can be material, the joint effects consist of the wreck- of the capital originally embarked.Under a joint commission, by which the effects pass to the assignees,while the partners are personally discharged,- I admit, that the preference of the joint creditors has no other foundation, if it has-any at all, than this supposed inherent equity; and the best elementary writer on. the' subject so» disposes of the difficulty. Gow on Partnership, 341-2. But in the case of a separate commission, Lord Eldon expressly puts it on the particular equity of the'part-ners themselves; Ex parte Ruffin, 6 Vesey, 126, and in the case of an execution, Chief Baron M'Donald does the same. Taylor v. Fields, 4 Vesey, 396. To-secure the firm from the extravagance of’ its members, by preventing the capital from being withdrawn' from the purposes of the partnership,- the stock is pledged for the burthen which, from the nature of the connexion, is to» be borne by all; but in moulding the law of partnership to its present form, the credit gained by giving the joint creditors a preference, was, if an object at all, a very remote one. Accordingly, with the singly exception of a joint commission, we find that wherever the part-1 ners are not individually involved, the joint creditors have no preference whatever: as in the instance' of a bona fide assignment of j the effects, to one of the partners, after the partnership has been1' dissolved.

^ In consequence of the rule as I have stated’ft-, a separate execu-tion creditor sells, not the chattels of the partnership, hut the interest of the partner, encumbered with the-joint debts;' and the joint creditors therefore have no claim to the proceeds.- To allow them the proceeds, and recourse to the property in the hands of the1 purchaser, would subject' if to a double- satisfaction. Neither can-they take the proceeds or the property at their election. They • can interfere at_all, only on the ground of a preference which ha»» regard only to the partnership effects, and these have not Been sold but only the subordinate interest of the partner, which was, strictly speaking, his separate estate. Their recourse, therefore, is necessarily to the property in the hands of the purchaser. Now had the sheriff sold the interest of bu.t one of the partners, the execution creditor would have clearly been entitled to the proceeds. But although he sold the whole stock at one operation, on separate executions against both, there was, in contemplation of law, a separate sale of the interest of each. What then would have been the effect, had these sales been made consecutively? The first, in the order of time, would have passed the interest of the partner, subject to the equity of his co-partner, and the execution creditor would have been entitled to the price, But this equity, together with the remaining interest of the other partner, would have passed by the succeeding sale, to the same purchaser; the execution creditor, in that instance, also taking the proceeds. Can it make a difference, then, that instead of being consecutive, these two sales were simultaneous? A curious question might arise whether separate purchasers of the shares respectively, would stand in the relation of partners, so as to enable the joint creditors to follow the goods. It seems to me they would not, because not personally involved in payment of the debts. Here, however, where the shares of the partners are united in the same purchaser, every semblance of partnership equities is at an end. As regards the goods in the hands of the purchasers, this is conceded; but the joint creditors insist that the proceeds are to he substituted for .the goods, and subjected to the same equities. That might be done if the proceeds belonged to the partners; but it is not easy to imagine how they are to be treated as the owners of money raised by a sale on executions against them. For what purpose should the ownership of it be vested in them, even for an instant? ' Not to give the; joint creditors a preference, for that would make the rights of thb partners depend on the claims of the joint creditors., who on the contrary can claim nothing but by virtue of the lien, where there V one, of the partners. To say that the partners have such a lien, because the joint creditors have .an equity, and that the joint creditors have an equity because the partners have a lien, would be to argue in a circle. Here the partners cannot be prejudiced in respect of their claims on each other., the advantage to be gained from an application of the joint effects to their separate debts, being mutual and equal, The consequences are precisely the same, as if the effects had been sold on an execution against^ both. We are, therefore, of opinion that the joint creditors can not interpose; and consequently, that the rejection of the evidence, as-well as the direction to the jury, was substantially right.

I have considered the question on principles applicable to it, in analogy to well settled parts of the law of partnership, rather than on authority bearing directly on the point. But, since this opinion was drawn, my brother Huston has' directed my attention to the case of Brinkerhoff v. Marvin, 5 Johns. Ch. R. 300, which is direct to the point; so that independent of analogies, we have an author rity on which we might safely rule the cause. But both principle ,and authority are adverse to the preference claimed; and the issue, therefore, was .correctly found for the plaintiff

Huston, J., dissented..

Rogers, J., was sitting at Nisi Prius, and tools no part in the judgment.

Judgment affirmed


author: Huston, J.,

text:
    BENJAMIN KONIGMACHER, guardian of JACOB KIMMEL, appellant, against JACOB KIMMEL, appellee.
    B. K., in 1815, was appointed guardian of J.; shortly after, J. W., brotliei’-in-law of J., and administrator of the estate'of his father, settled his administration account, by which a balance was found in his hands. In 1816, B. K. received part of that balance in cash, and for the residue coming to his war’d, took J. W’s. bond, without security. At that time J. W. was in good circumstances, he kept a store, and up to the year 1820, continued to have a large amount of real and personal property in his possession; then he sold a tract of land, which he had bought at a very high price, at a loss of about. $12,000, and shortly after, made an assignment for the benefit of his creditors, by which it appeared, that he was largely indebted. The assignees paid fifty-five per cent of his debts. Up to the spring of 1820, many of his neighbours, and among them, the mother, and another brother-in-law of J., loaned him different sums of money.

      Held — That B. It., the guardian, was not chargeable with the loss upon the bond he had taken of J. W. ,
    More ought' not to be expected from guardians, than common prudential-care; they should not be made liable, ■ unless under unfavourable circumstances, their acts expose them to the animadversion of the law, for supine negligence, shewing carelessness of duty, and of the ward’s interest: or where the loss is occasioned by their own act, " in giving credit,. , without taking security. • ' -
    If executor or administrator, sell goods of testator or intestate, and do hot take security for the price, he is ■ generally charged with the amount. If the bail or security, is a man generally reputed good for so much, it-is sufficient, it is not necessary that he should be a freeholder. So if a guardian has in his hands money of his ward, and put it out, he will generally be liable, unless he take surety in the note, &c. not so if he take a mortgage on land, and an old title, unknown at the time, should sweep away the property mortgaged'.
    But where the fund never actually came to the hands of the guardian, there is a difference; he is not bound instantly to sue in all directions, if to all appearance, the money is safe.
    Common skill, common prudence, and common caution, are all that courts •require from trustees.
    In case of appeal from a decree of the Circuit Court, a certiorari is not necessary, nor can the prothonotary demand his fee before entering it.
    This was an appeal from the. decree of the Grcuit Court, confirming the decree of the Orphans’ Court, of Lancaster county,' in the matter of the guardianship account of Benjamin Konigmdcher, the appellant, as guardian of Jacob Kinimel, the appellee, charging the guardian with the amount of a bond given by John Weidman, to the guardian, on account of money due the' ward, and ‘which was lost by the insolvency of Weidman.

    Upon breaking the case in this court, Porter, for the appellee, moved to quash the appeal, on the ground, that it; had not. been filed here in time. It appeared that the récord of the appeal had been taken to the prothonotary in due time; but that he refused to receive it, because no certim-ari had been issued in the case, and his fee of one dollar and fifty cents, was not paid. The court overruled the motion, A certiorari is not necessary, nor can the prothonotary demand his fee before entering the appeal.
    The exception in this court, was, the charge to the guardian of the money lost by the insolvency of Weidman, and at all events, to the interest on it. The decree in the Circuit Court, was made without prejudice, and with a view to a decision by the Supreme Court.
    It appeared from the .evidence,- that Jacob Konigmacher and John Weidman, were administrators of Jacob Kimmel’s estate, and settled their administration account in the fall of 1815, John Weidman, was the son-in-law -of the intestate, .and on the settlement of the account, bad in his hands, four hundred and seventy-six pounds four shillings and six pence. Benjamin Konigmacher, was appointed guardian of Jacob Kimmel, a minor son of -the intestate, on the 25th of September, 1815, and on .the 1st of April, 1816, received from Weidman, two hundred dollars in cash, and took his bond for the residue of his ward’s share. The interest was paid on this bond, at the end of the first year, hut no interest was paid after that time.
    In the autumn of 1820, Weidman, made a general assignment of his property, for the benefit of his creditors, and the assignees had paid about fifty-five per cent of his debts.
    The Orphans’ Court, charged the guardian with the whole amount of the bond, and. interest thereon, up to the settlement of Ms account.
    The appellant examined twelve Witnesses, ten of whom were «creditors of John Weidman, and all hut two of whom had lost by Mm. The other two had been clerks in his store. •
    The proof of all, was, that Weidman, had a farm, and kept a •store; was considered perfectly honest, was managing well, sober, industrious and by all supposed to he growing rich. No one of ¡these had. .asked 'security from him at the time of lending their money, nor had sued him. One, who was executor of another estate, had, shortly before Ms assignment, got a bond on another person from Weidman, in lieu ,of his own. Another had purchased ,a plantation from Weidman, and then became' a debtor instead of creditor. Two of them had lent him money in 1819, and one- in the spring of 1820. The men who had been- clerks in the store, proved bis character,-and credit, up almost to fhe last. The mother of him who- was clerk when he assigned, had loaned J. Weidman, two hundred pounds, and he did not think it necessary to warn her, that it was in danger-; nor did she either sue or ásk security. His failure was .accounted for in this way; when prdpertywas rising and very high in this county, he purchased a tract of land, at sixty-one pounds six sMIlings and six pence, per acre. Property fell, and he offered it for sale — at length for sale at public vendue. On the 20th October, 1820, it was hid to ninety dollars per acre: Weidman thought it too low, and endeavoured to get i£ higher price, but finding he could not, he, on the 12th of November, closed with the bidder, and conveyed it. On examining his affairs, he found the loss on this single purchase, of about seventy-eight dollars per acre, had rendered him insolvent, andón the 17th of November, he made an assignment, as before stated. On that assignment was an exact list of all his creditors, and the amount-due to each. The number Was about thirty, and the amount ex-eeededfifteen thousand dollars. Many of these were bond creditors for money lent; not one of whom had asked for ■ security at the' time of the loan, nor had got it since, nor had sued him. The appellee examined the mother of the ward, two of his brothers-in-law, and took the depositions of four witnesses who had given them before, at the request of the appellant. The mother of the' ward swore she had lent Weidman money, hut never asked security- — that after the sale of Weidman’s■ land at a vendue, she fold Konigmacher to secure himself — -that she wished her son's money left in Weidman’s hands — that her grandfather never liked Weidman, but every body else spoke well of him — that she never believed he would fail. One brother-in-íáw proved, that he himself had loaned money to Weidman, and got secured about three weeks before he assigned; that he saw Konigmacher and advised him5 to get security — -but he met Brvhecker, another brother-in-law,Who told him Weidmati was in no danger,- and Konigmacher said he would risk it. This was about the time of the vendue. He1 fold Konigmacher, he thought he could get from Weidman, hpnds on' Barnhart; he did not know who got those bonds; hut Barnhart Jurned out to he insolvent. The other brother-in-law, who Cross-examined all the witnesses on the part of the appellee, proved that he knew Weidman■ was in debt, the amount of his debts,- and to whom due, in 1819: hut he expressly said he never told this to any person, although he might have said he Was' much indebted — that he did not tell Konigmacher. Keller, as' representative of Houk’s estate had got security, about the' time of the sale; hut he said it is- disputed whether he wilt recover, it is still in law. He and Hoeker, who lent Weidman t-wé hundred pounds in 1819, said the credit of Weidman Was not sc good in 1820'ss it had been. Hoeker neither applied for security/ nor sued;- and on Cross-examination they both fixed the time in 1820, when Weidman’s credit failed,- to be ábout the time of the Vendue, at Which he sold his land- at such a loss.-

      Hopkins for the appellant.
    A guardian is hound to exercise the same discretion and judgement, only as a- prudent- man would- in his own- case.- West v.-Ship?
      2 Vesey, 240. In order to involve a man who acts without interest as in case of a trustee or bailee, there must be gross default.' Palmer v. Jones, 1 Vernon, 144. 2 Fonblanque’s Eq. 180. Osgood v. Franklin, 2 John Ch. R. 1. 27 — 28.

      He is not chargeable with imaginary values, or what he has not received, unless in case of gross negligence, amounting to wilful default; and courts will'not strike a terror into such as act as trustees, by adopting a more rigid rule, • Bercherv. Parsons, Ambler 219. Thompsonv. Brown, 4 John. Ch. R. 619. 628,
    Executors and administrators, acting with good faith, and not being in default, are not liable for a loss. Brown v. Litton, 1 Peer-. William, 141-
    A bailee, who derives no advantages from his undertaking, is responsible only for gross neglect. Gross neglect is the want of that care, which every man how-negligent soever, takes of his own affairs. Jones on Bailment, 118 — 119.
    The guardian acted in this case with good faith, and with ordinary care, which is all that is required of him. He referred also to Pimm v. Downing, 11 Serg, Sf Rawle, 66. Johnson’s Appeal, 12 Serg. 4" Rawle, 317. Bonsai’s Appeal, 1 Rawle, 260,

      Porter, for the appellee,
    contended, that there had been gross negligence on- the part of the guardian, that -although the bond was taken in 1816, and due in one year; he did not so much as observe the ordinary care of demanding, and obtaining the payment of the interest. The neglect of the obligor to discharge the interest, was enough to put him on his guard. He went into a commentary upon the evidence, and argued, that whatever' might have been the apparent circumstances of Weidman, up to that time, that in the spring of 1819, they were suspicious, and the guardian, notwithstanding, took no step to secure his ward’s money.
    If it be made out to a reasonable probability, that his ward’s money is lost by the negligence of the guardian, he is responsible. Pimm V. Downing, 11 Serg. Sf Rawle, 66.
    In the ca.se in Rawle, there was the exercise of an erroneous judgment, but without any negligence; and in Peer. William, the case is of a loss in consequence of the depreciation of the land upon which the debt was secured.

      Reply. It is the harshest thing in the world to make a trustee responsible where he is in no default. Jackson v. Jackson, 12 Serg, Sf Rawle, 324.' Jacksonv. Jackson, 1 Atkins-, 513. If a wan is incapable or careless by habit, it is his misfortune, but if there be fault in such case, it is of those who appoint him. Here the money was out when the guardian was appointed, in the hands of one of the members of the family, in whom they confided. He went into a view of the facts to show, that the circumstances of the obligor were ostensibly good, until he sold his land in 1820, when his immense' loss- was revealed to him. This- calamity had its-origin in the depreciation of land, which no prudence could have foreseen nor vigilance guarded against. Up to- this time he had the unreserved confidence of his neighbours, proved by the fact, that so' many loaned him money without security. A prudent man would have pronounced the investment a gopd one, and the guardian would not, under the circumstances; have been justified in calling, it in. In leaving it in his hands, the guardian did nothing more than other' men did with' their own money. Under these circumstances,to charge him with the loss, would produce that terror in guardians spoken of by Lord Iiardwicke; and calculated to deter prudent men from assuming: an office, which in itself is sufficiently onerous, and already undertaken with great reluctance.- Nothing but supine negligence should, make him liable. The case of Pimm v. Dow-* ning, where the guardian was exonerated, under circumstances against him much stronger than in our case,- recognises the doctrine,- that to charge a guardian there must be lata culpa or malajides.' . \ '

   The opinion of the court was delivered by

Huston, J.,

(who stated the facts of the case.) It is á maíteí . constantly .occurring in every county, that executors or guardians- are charged with losses, and to settle, if possible,- some rule is desirable.- Perhaps this.cáse was so peculiar in some of the circumstances as- to call for a decision, in part founded, on those circumstances; The old cases at law as to the liability of executors, guardians,- &c. are of such a nature as to excite astonishment. They would seem, by consent, to have been set up, like a cock at Shrovetide, to be thrown at by all who delight in such sport. If an executor could not agree with a debtor of the estate, and to save expense, referred the dispute to arbitrators, who made a deduction from his demand, the executor was charged, and must-make up this deduction out of his oWn pocket; and it did not avail him- to prove that the deduction was properly made. This is cited-as law by Toller, although it has not been the law for several centuries. It first changed to this, that a submission of a matter to arbitration, was an admission of assets; now that is not so'; and itisyit length considered, truly, as a mode of ascertaining matters on which the parties cannot agree. Courts of equity early interfered in the case of executors, &c.and as they were then obliged,in every case of arecovery on a bond, to interfere to save the defendant from paying the whole penalty, so they interfered to save executors and administrators, from paying what in justice and conscience they ought not to pay.

This case has been fully and ably argued, and this court is not unanimous. I proceed to state the ground on which the majority have come to a conclusion. I have said the old cas.es are unreasonable, and are not law now. There was a time when the affairs of executors were principally settled either in ecclesiastical courts, or in courts of law'; but as the jurisdiction of chancery increased, it included, along with other trusts,, the accounts, settlements and responsibilities of executors, administrators and guardians, which are now almost exclusively determined in that court.. I shall not go into all the authorities, nor trace this jurisdiction from its origin, but content myself with a few cases. In 3 Atkyns, 480, Knight v. Earl of Plymouth, a receiver appointed in chancery for the rents of a minor, recéived seven hundred pounds, at Worcester There being some expense and risk in-, remitting to London, in specie, he gavé it to Winsmore, a trader in good credit, and took his-bills on London. The bills were protested, and Winsmore became a bankrupt within a week: it was-proved, however, that at the time the, bills were taken, his credit was as good as any man’s in-Worcester. The receiver was not charged with the money, although it was urged, that not being a trustee appointed by the party, but by the' law, he must answer with the utmost strictness; that he received compensation too for his services, and therefore was held to greater strictness.' In 1 Peer. William, 141, where an-executor, without being authorized by a decree, puts out money on real security, he is not liable though- the money is lost, if given on security reputed good, and no fraud.

Ambler, 218. ex parte Belshier. The assignee of a bankrupt, who also receives a. compensation, employed a broker to sell tobacco, who received the price, and about fen • days after died insolvent.,The commissioners of bankruptcy charged the assignee with the loss; but on application to chancery, the chancellor said, if the ■assignee was charged in this case, no- sane man would ever become an assignee. He entered at large into the law, referred to several, cases, and came to the conclusion, that it is not necessary, in every case, to take security: if the trustees act for the trust as prudent persons act for themselves, and in the usual way of business, they are not liable. In 2 Vernon, 240, Jones and Lewis, we find a still stronger case, and to the same effect — after decree to account and1 to pay over, an administratrix instead of going to' the plaintiff and' paying, left the,money with her solicitor, to pay when called for; .he was robbed, and. she was excused. It is again put on the ground of her acting as-prudent people act in their own cases; to keep the trust fund as they keep their own.

I coidd trace the same doctrine through every case from that time. ^ In a neighbouring state, a,chancellor of great eminence for .learning, industry and ability, has-fully adopted the same doctrine; and it is settled in New York, that executors, administrators or guardians, are not liable beyond what they .actually receive; unless in case of gross negligence. Where they act as others do with their own goods, with good faith, and not gross negligence, they are not liable; indeed the first case is stronger than that. See 2 Johnson’s Ch. 27, et seq. 4 Johnson’s Ch. 619.

This subject has been considered in this court: I shall not review all the cases. In 11 Serg. & Rawle, 67. 8 Pimm v. Downing and Stalker, we have a case much stronger than this. The money was not forced from the administrators (the mother and uncle of ■the ward,) for three years, and was lost; for this the guardian was not held hable: part was in the hands of the joint guardian, and by Stalker given to his co-guardian, who was going into trade; for this he was held-liablel The principie settled in ¿hatease, is, that for gross negligence, trustees are liable,-and for ¿heir own acts in not carefully securing money, which was in their hands, and put out by them; but for not sueing at once, a mother, who was an administratrix, and in good credit, or not sueing her, when they first heard of her insolvency, if no probability of recovering at-that time, they were not answerable.

In 12 Serg. & Rawle, 317 Johns. Appeal. The matter -was again fully considered; in that case, the grounds for charging the guardian, were stronger than in this. In 1815, he settled with the .executors, and for a balance to his ward, of one thousand six hundred and seventy-two dollars, he neither took, nor .asked security, but interest was paid him. In 1819, the executor settled his account, and a balance of nine thousand dollars and upwards, was in his hands; the guardian took no step to recover his ward’s share, for seven months. In 1820; he applied to the Orphans’ Court, to have security or that the executor should be dismissed, and he was dismissed. It is true that the money was not payable to the ward until she was twenty-one,' but the executor was not cited to give security, until he was totally insolvent; yet there was no suit nor judgment against him, until after he was dismissed by the Orphans’ Court, nor no evidence that he was of doubtful credit; nor of any notice to guardian, except by deposition of the widow, who had trusted him, and who, herself had no security.

It is there said, to be the harshest demand that can be made in equity, to make .a trustee answerable for what never was in hisp hands, or to make up a deficiency not owing to his wilful default. More ought not to be expected from guardians, than common prudential care; they should not be made liable, unless under unfavorable circumstances; their acts expose them to the animadversion of the law, for supine negligence, shewing carelessness of duty and of the ward’s interest, or when the loss is occasioned by their own act, in giving credit without taking security, when they sell goods or put out money in .their' own hands. ,,

Where executors or administrators, take possession of the goods of the deceased, and sell them, (usually in this country at auction,) it is usual .to require from the purchaser, of such as aye sold on credit, surety in the note; if this is not taken, the executor is generally charged with ,the .amount, for he had the goods in his own possession: hut he is no.t obliged to take ;a freeholder for bail. If the bail is a man generally reputed good for so much, it is sufficient. So if a guardian has on hand money of his ward, and puts it out, lie .will generally be liable., unless he take a surety in the note. I do not say, he would in all cases: ex gratiaif he took a mortgage on land, ,and an old title, unknown at the tune, should sweep away the property. In short, whenever the executor or guardian, actually has the fund, and disposes of it to another, he must do if with proper and strict caution, as a prudent man would, and is seldom safe unless he does take security. But where the fund .never actually comes, into the hands of a guardian, all the cases make a difference; he is not bound instantly to sue in all directions: the mother, brothers, or brothers-in-law of the ward, are not to he harassed to extremity, if to all appearance, and in the general opinion, the money is safe in their hands. If adults of the family have funds in the same situation, or if other prudent men have, and consider all safe, the law doe.s not require every possible precaution .and exertion from a guardian.

An unusual rise and .depression of property, occurred over most parts of this State, from 1814 to 1820, many of those who were considered, .and who were of eminent skill in business, of great industry, and as honest as any of their neighbours, were ruined. It was a time in which ruin overwhelmed many of all classes, and accident had more to do in the eventual wealth or poverty of every man, than knowledge or exertion. The infatuation, as it is now-called, pervaded all ranks. A few from extreme caution, a few from extreme indolence, and perhaps some few from a great superiority of mind, or experience, kept aloof. It is not right, however, to make them a standard, by which trustees, are to be held liable or not; pre-eminent knowledge .or uncommon foresight, are not required. Ordinary men are to he compared with, and judged by the standard of ordinary men. Common skill, common prudence, and common caution, ar.e all that courts have required or ought to require.

-There is no proof that Weidman, -was a general speculator; he bought a place called the Dry Tavern: no one has said he bought too high or lost by it. If he had become extravagant or intemperate, or lost his character for honesty, or if an opinion that he was failing had generally existed, the guardian ought to have sued or got security. The proof fairly viewed is, that until the sale of his Garber place, had shown .a loss of above twelve thousand dollars, he was considered safe.; and even then the widow did not sue, nor ask security, nor did any but two out of about twenty creditors, all of whom, we must take to be careful, prudent men. Your money lenders, are not dull sighted, nor negligent of their interest; and no court, I think, has said that a guardian is liable unless he have more caution, more knowledge, or more foresight, than his neighbours.

No two cases of this kind can be exactly alike in all their circumstances, and therefore, courts can only give general rules. Whether a case comes within a general rule, is a matter about which judges have differed, and will differ. In this case, a majority of the court are of opinion, that, as he never had possession of the money, and found it in hands which the family and neighbours thought safe, it was not gross or culpable negligence, to leave it there. As to not getting the interest, it was probably, perhaps certainly, because the ward did not need it. The fact, that Weidman, was deeply indebted, though believed solvent, is answered by the case from Atkyns, in which he whose drafts the receiver .took, was believed good, though he became bankrupt in a week.

As to not sueing after sale of the land, it is answered by Pimm v. Downing, where the guardian was excused for not sueing the administrators as soon as he heard they were indebted, because there was no eyidence, he would then have got any thing. In this case, we see no evidence, that a suit would have obtained any more than is now got.

The decree of the Circuit Court, is reversed as to all which respects the amount lost by the insolvency of Weidman. The rest of the decree is affirmed.

Tod, J., dissented.

Pecree reversed.


text:
    AMOS SLAYMAKER, administrator of JOHN BOYD, deceased, against JOHN WILSON
    IN ERROR.
    A witness is incompetent to prove a signature, without proof of having seen the person write, or of other circumstances to show knowledge of the hand-writing which he is called to prove.
    It is not enough, without such preliminary proof, that the witness swears that the signature offered, is the signature of the person whose it purports to be.
    The redemption of a pawn is not affected by the statute of limitations, which runs only from the .conversion of the thing pawned. But a simple contract debt is not protected from the statute, because accompanied with a pledge as a collateral security.
    Writ of error to the District Court for the city and county of Lancaster.
    In that court it was an action of debt brought on the 22d day of January, 1821, by the defendant in error who was plaintiff below, against the plaintiff in error who was defendant below, upon the following paper:
    “ Friend John Wilson, I was at your house this-day to see if you icould let me have one hundred and fifty-four dollars, I owe it to Thomas Coates, he will call to-morrow. I have left the deed, and if you pay him the money, get him to sign the receipt in the .deed, this from yours, -.
    “May 3d. 1798,” “JohnBoyd,”

    The defendánt pleaded nil dehit, non assumpsit, payment with 'leave, &c, and the statute of limitations; upon which the plaintiff took issue.
    Upon the trial of the cause, the plaintiff gave in evidence the order of the 3d of May, 1798, on which he founded his suit, and offered a deed, dated the 29th day of April, 1794, acknowledged on the 31st July, 1797, from Thomas Coatesto John Boyd, for a moiety of a tract of land in Leacock township, Lancaster county, together with the receipt for the purchase money on the deed, with proof that the subscribing witness to the.receipt, William Jones, was dead, and the deposition of his daughter, Elizabeth MGraw, in which she deposed, “ that the signature of William Jones, signed, as a witness, to the receipt for the money, on a deed from Thomas Coates, to John Boyd, is the hand-writing of William Jones, the father of this deponent.”
    To this testimony so offered, the defendant objected, but the court overruled the objection, admitted the evidence, and sealed a bill of exception.

      By the evidence, it appeared that the parties lived no great distance from each other, in the county of Lancaster; that the plaintiff brought three suits against the 'defendant’s intestate, John Boyd, to August term, 1810. Two on bonds, each for the payment of five hundred dollars; another on a single bill, for the payment of one hundred pounds; and another on a book account for money lent, amounting to two hundred and two dollars, all dated after 1800. On the two first of these cases, no judgment was obtained, but the money had been paid, and on the last, judgment was had for four hundred and twenty-four dollars and sixty cents, which had since been paid.
    The court below, in answer to points put; charged the jury that —“ the order in this case contains a request that Wilson, if he lent the money, should procure the signature of Coates, to the receipt on the deed. It appears by. the paper that the deed was left for that purpose. If there was no fact in the case on this subject, out of this paper, it would be the duty of the court to give it in charge to you, what the legal construction of the paper is. But this-deed, from Coates to Boyd, is produced on the trial of the cause by the plaintiff If the jury should be of opinion, that the deed is the one spoken of in the order, and that from the terms of the order and the fact, if they believe it to be so, that the deed has ever since been in the possession of the plaintiff, and the deed was left as a pledge to secure the payment of the money, the act of limitations does not apply to this case; but ,if the jury should be of opinion that the deed in evidence is not the deed from Coates, mentioned in the order, or that it was not pledged as a security for the payment of the money, the act of limitations will bar the plaintiff, and he .cannot recover.”
    The court also charged the jury, that if the delay of the plaintiff in bringing suit, had not been satisfactorily accounted for, it .was the duty of the jury to infer from that, and other circumstances, in the case, the payment of the money claimed.
    Error was'here assigned in admitting the deposition of Elizabeth M Gram, and in the charge of the- court.

      Evans, for the plaintiff in error.
    Argued, that the deposition was improperly received. That no person is a competent witness to prove a signature, or hand-writing, but one who has seen the person write, whose hand he is called on to prove, and- before such-witness is permitted to give evidence,-he must disclose, as a preliminary, his means of knowing the hand-writing. • Here the witness-was received to testify, that the signature was her father’s, without any evidence that she had any knowledge of hishand-writing.-
    2. The statute of limitations is a bar. The attempt is to avoid the statute by the allegation that the money was-loaned on a pawn or pledge. The order contains no evidence that the deed was-pawned, it is a simple request to loan money;- and;the possession of the deed does not of itself prove a pawn. But if the plaintiff allege a pawn, he could not recover, for he-must return, or offer to return a pawn, before he can bring suit to recover money, for which it- is pledged. 1 Bacon Ab.- 370. Garlick v. James, 12 John. Rep, 146.
    But the issue- Was joined, as to' the statute of limitations, on the replication that the defendant did assume within six years. There Was no proof of such assumption, and it is- not competent, under this issue, to rely on the alleged pawn to avoid the statute. To give that effect, if entitled to any, it should have' been specially pleaded. TVherup v.- Hill, 9 Serg. Sp Rawle, 11. VFister v. Gray, 5 Bin. 573. Eckert v. Wilson, 12 Serg. Sp Rawle, 393. Bailey v. Bailey, 14 Serg. Sp Rawle, 195-.-

      Hopkins, for defendant in error,
    as to the bill of exception, argued, that where a witness called to prove hand-writing; swears to belief,-he must state his grounds of belief, and knowledge: but where the witness, as- here, swears' to the- actual fact, that the hand-writing is the writing of an individual, it is better' evidence, than evidence of belief, founded on- antecedent means of knowledge of hand-writing.
    2. The question of pawn, being one' of fact, was properly left to the jury.
    The statute of limitations- is inapplicable to the case' of a pawn. The deed could not have been recovered without payment of the money for which it was pledged. And as the deed could not be recovered without payment of the money, so' as long as the deed is retained,-the money can be recovered:' and Wperiod will destroy this mutual obligation in the case of a pawn.
    The pawnor has his life-time to redeem, and if not hastened by a request, his executor or administrator' may redeem. Cortelyou v Antill, 2 Caines C. in Error, 199'. In reason, the rule should be reciprocal, the pawnor having his life-time to redeem, the pawnee should not be barred by the statute for the money advanced on the pawn. No power short of redemption, or a tender, can bring time to operate. Kemp v. Westbrook,- 1 Vesey, 278. 1 Bacon Ab. 372 a.

    Trover' for the pawn will not lie without payment, or tender. No precisé Words are necessary to create a pawn. 1 Bacmi Ab. 370.
    The replication to the plea of the statute is not before the court. The court below did not refer to the'pleadings. But on this replication it is full evidence to prove, that the defendant assented to the continuance of the pawn in the possession of the pawnee.
    Besides, the plea of the statute was a nugatory plea. The plaintiff must show a right to recover, independant of the statute, and the issue upon it cannot divert the investigation from the merits. The objection now urged, is to the pleadings, and should have been made on the trial. Thompson v. Cross, 16 Serg. Sp Rawle, 350.

      Norris, for the plaintiffin error, in reply.
    The suit' is for money loaned, simply, that is the cause of action to which the plaintiff is-confined. Yet notwithstanding he seeks to recover a debt upon a pawn. He must be confined to' the issue on the statute of-limitations, and cannot travel out of it. If he relied on special matter in avoidance of the statute, he must set it out in his replica-tion. Whereup v. Hill, 9 Serg.-Sf Rawle, 11.- There is no evidence of a pawn, nor is it like an indefinite deposite.- The order itself shows it was left to get the signature of Mr. Coates to the receipt. Independent of the statute, the lapse of more than twenty years,, created an insuperable presumption of payment..
   The opinion of the court' was delivered by

Gibson, C. J.

Without proof of having seen her father write,- or other circumstances to shew her knowledge, Mrs. M‘Grata was-incompetent to prove his signature; and her deposition ought to have been rejected.

The redemption of a pawn is not affected by the statute' of limitations, which runs only from the conversion of the thing pawned; and trover may, consequently, be brought within six years from that time. The present, however, is not an action by the owner in affirmance of the contract of bailment, but by the pawnee to recover a simple contract debt, which is certainly not the more protected from the statute because accompanied with a pledge, as a collateral security; nor is it, on that account, the less subject lathe mischief against which the statute was intended to guard.- Had the matter been stirred before those who knew the circumstances had passed away, it is highly probable, that the transaction would have been explained so as to shew that nothing is due. Certainly the delay of twenty-three years, unaccounted for, raises an omnipotent presumption. But was the deed deposited,, in fact, as a security? Nothing in the order- on which the money was paid, indicates such a conclusion; and it seems to me the court ought so to have instructed the jury. But it is said that the construction being affected by a circumstance dehors the order; the production of the deed was for the jury. 1 am at a loss to see what operation that could have. The deed was in the plaintiff’s possession for some purpose; but whether as a pledge, or for the purpose indicated in the order, could not appear by the naked production of it. I presume the argument is, that the owner would have demanded it in a convenient time, had he not been conscious that it was held as a security. This- is the first instance in which delay has been set up to strengthen a plaintiff’s case. On the other hand, there is an infinitely stronger presumption that the plaintiff would have exacted the interest, if not the principal, if any thing were due. But in any event, the statute of limitations furnishes a bar to the action. Judgment reversed.


text:
    JOHN KELLER, assignee of JOHN GEST, against JACOB LEIB, with notice to CHRISTIAN STEHMAN, Jr. terre-tenant.
    IN EKROK,-
    Trustee for the payment of debts,- paid a judgment against the debtor, and' took- an assignment in' writing on-the back of the bond on which it was entered, expressed to be for value received, held that it was competent' to prove by parol,, that the assignment had been made- to enable the trustee to enter satisfaction on it, and not to preserve it as a subsisting debt,
    If evidence must be immaterial when given, the court ought to reject it.
    If a trustee pay a judgment against the debtor out of the trust fund, it is as much satisfied as if the debtor had paid it, and there is no legal or equita-ble reason for keeping it in force.
    The trustee cannot, by taking an assignment of it, when it is paid, make it available against the lands of the debtor, conveyed after it was entered; either for a good or valuable consideration:- nor cart it be made to cover any other debt or demand;

      Query. — Whether such trustee can proceed on a judgment against the debtor, (purchased-with his own funds,) by execution.
    In error to the District Court for- the city and county of Lancaster.
    This was a scire facias post annum et diem, brought by the plaintiff in error, who-was also plaintiff below, to revive a judgment, which had been entered in the common pleas, at the suit- of John Gest, &c. against Jacob Leib.- The original judgment was entered on the 10th April, 1815, and the judgment which was sought to he revived by this scire facias, was entered to revive that judgment' on the 22d November, 1819.

      Jacob. Leib, on the 2d May, 1818,conveyed by deed to Christian Stehman,- the terre-tenant, and his son-in-law, one hundred and twenty-six acres of land, in consideration of twelve thousand and fourteen dollars, and natural love and affection; and on the 27th October, 1819, executed to John Keller, John Leib and John Shober, a deed of trust, for the use of his creditors, he being at that time largely indebted; but at the time of the deed to Stehman, the judgment in favour of Gest, and one other only existed against-him. Oh the 2d of May, 1821, John Keller,- one of the trustees, paid to Gest, the amount of this judgment out of the trust fund, and took an assignment of the bond, on which the original judgment was entered to himself; and it was expressed in the assignment to be for value received. On the 26th September, 1823, the trustees settled an account, in which they took credit for- the amount of the debt, interest and costs, exceeding three thousand dollars, paid toGest, on this judgment; stating however, on the face of the ac~ count, that the judgment was outstanding.

      The terre-tenant, who took defence, offered to prove by the deposition of Gest, that when the judgment was paid to him, Keller requested him to assign it to him, that he told Keller he had no objections, that he could enter satisfaction at Lancaster, as he was frequently there, and it was too far for the deponent to go for that purpose; that this would clear the estate, and the bond would be a voucher in his hands against the estate. That he made the assignment to Keller solely for the purpose, and the reasons stated. This evidence was objected to by the plaintiff but received by the court, and constituted one of the bills of exception assigned for error here.
    After this evidence, and proof of the payment of the judgment to Gest, the assignment to Keller, and the account of the trustees had been given, the plaintiff offered to prove, that at the time of the deed to Stehman, Leib was largely indebted; that fifty acres, part of the land conveyed, was conveyed in consideration of natural love and affection. This evidence was objected to by-the defendant, and overruled by the court, and formed another bill of exception, assigned for error in this court.
    The court charged the jury, that if they believed that the judgment was paid to Gest, out of the trust fund, in satisfaction of it, and that Keller took an assignment of it merely to enter satisfaction, the defendant was entitled to their verdict. This, and the answers of the court .to the points put, which it is not necessary to state specifically, was also assigned for error.

      Jenkins and Hopkins, for the plaintiff in error,
    -argued that the testimony of Gest went to contradict and destroy the assignment on the bond, which was positive in -its terms, and contained a stipulation, that the assignor should not be liable, and that no case had gone the length of admitting such evidence.
    That the evidence as to the consideration of the land conveyed, connected with the indebtedness of the grantor, should have been received. It would have gone to avoid the deed, set up by the -terre-tenant as a defence. Hayden v. Mentzer, 10 Serg. fy Ramie, 329.
    If the trustee paid the money, and took the assignment for a purpose beneficial to the trust, he had a right to do so. Here Gest had two funds, and the other creditors but one, and in equity, he would be constrained to seek satisfaction from that fund to which they could not resort. The assignment taken, and this scire facias would, if the plaintiff prevailed, accomplish this equitable application of the funds. Don• v. Sham, 4 Johns. Ch.R. 17.
    The court declined hearing Rogers, Harris and Frazier, who were counsel for the defendant in error.
   The opinion of the court was delivered by

Huston, J.,

(who recapitulated the facts of the case.) — As to the first bill we see no difficulty. In New York, where the courts of ;law are strict in rejecting parol evidence where there is written; yet there, evidence is constantly admitted to explain a receipt for 'money, and they have permitted a party to shew, that although a .receipt was given in full for goods sold, yet in fact there was no money paid, but a note of a third person'given, which was to be in full if paid. Our courts have done the same thing, Leese v. James, 10 Serg. & Rawle, 314. In cases of trust the courts will always permit the conduct of the trustee to be examined, and the real facts to be proved. The settlement by the three trustees, of whom Keller was one, showed a payment of this judgment by them all; the assignment appeared as if it had been by one. There are few cases in which the real state of the case cánnot, by pleas or by proof, be broughtbefore a court of law or equity; our courts exercise ,the powers of both.

As to the other exceptions — -if evidence must be immaterial when given, the court ought to reject it. Now, if this judgment .was satisfied, in fact and in law, the plaintiff, J. Keifer, cannot recover any thing on it; if it is not satisfied, the lands of Stehman are bound by it, whether the conveyance to him by Jacob Leib, was fair or fraudulent; for a good and valuable consideration, or for no consideration. Tbe counsel, aware of this, have discussed the matter on that point; and contended it, as if the assignment had .been made ¡to the three trustees, and the suit was for the use .of creditors, and not of Keller alone, It is apparent, however, if this judgment is revived, so as to bind the land conveyed to .iStehman, that they c.an and .will sell not only the fifty acres said to be a gift, but the whole, for which he paid twelve thousand dollars ,cash; and the judgment would be conclusive against Stehman, as much for the one as for the other. There are creditors unpaid, ;and if there were any thing unfair as to them, in the conveyance by Leib to Stehman-, if the fifty acres were a gift by a man deeply Indebted, nay totally insolvent, it can be reached in another way.

But it is said, that where one creditor has two funds from which be can levy his debt, and another but one, chancery will compel •the first to levy so as to leave property for the other. This is true sometimes: where the creditors and the debtor alone are interested, it is generally the case; but where another person is interested, ■and may be affected, it is not always true, and if that other person be an innocent purchaser for a valuable consideration, it will not .be easy to find a case in which chancery has interfered to affect him. (See 1 Johns Ch. Rep. 226, and, I believe, every other book •and case on the subject.) I have said if the conveyance complained of be fraudulent, it .can be reached .directly by those interested; ;and we are of opinion, that the attempt, in the present case, is not likely to eventuate in doing justice. If the judgment of Gest was ■paid off by the trustees, out of the trust fund, it is as much satisfied .as if it had been paid off by J. Leib. They represent him, and can no more pay a judgment, and yet keep it in force than he could. If he had paid this judgment as surety, or if they had paid it for him, as surety or endorser, it might be used to reach the principal debtor: but when the real debtor pays a judgment against himself, or his trustees pay it with the trust fund, I can see no legal reason for keeping it in force, nor any equitable one.

It is, says chancellor Kent, in 4 Johns. Ch. Rep. 247, a sound and settled rule, that the penalty of a bond cannot be made to cover .any other debt or demand, than that mentioned in the condition, (and he cites 2. Caines Rep. 286,) and proceeds, there could not be a more dangerous, and there certainly is not a more inadmissable pretension, than that the parties to a judgment may keep it on foot, after the original debt has been paid, to meet and cover new and distinct engagements between them. And he adds, that although in that case, • the judgment had been revived, under the pretence that it was unsatisfied, at least, in part, and executions had issued on it, by the assignee, to recover the alleged balance, yet the assignee, if he took it, took it at his peril. And that whatever-might be the case as to strangers who purchased property under it, yet the assignee of it purchases it at his peril, and he was decreed to be a trustee, and compelled to release.- Another part of this case settles the question as to the admissibility of the evidence in the first bill.

A question almost the same as that before us, was decided by the Supreme Court of this State, and is reported in Kuhn v. North, 10 Serg. & Rawle, 399, in it, also, the question in the first bill seems to be settled. There, one of the assignees of an insolvent paid off a judgment, and charged the estate of the insolvent with the payment and the sheriffs officer endorsed satisfaction on the writ. On the next day, the assignee procured the judgment to be assigned to him; prevailed on the officer to erase the satisfaction endorsed on the writ, and gave it to another deputy of the sheriff to execute. The court decided, that an assignee who pays off a debt against the insolvent with his own money, may take an assignment of the judgment and proceed by execution; but if he pays off the debt with the trust funds, the judgment is satisfied, and the officer who executes process is a trespasser.

The point was not made, and therefore, I do not consider this as a deliberate opinion, whether such assignee can proceed on a judgment purchased with his own funds, by execution. I agree he may retain. for his judgment in proportion with others, but I doubt whether he can proceed by execution, and sue and buy in, the trust property for himself — if so, a trustee by purchasing a judgment, may make strange work of it.

The District Court, then, were right in all the points, and the judgment is affirmed. Judgment affirmed.