author: Burnside, J.

text:
    Davis v. Charles.
    A., being indebted, gaye a single bill with warrant of attorney to confess judgment to B. and C., payable one day after date, on which judgment was not entered up until the third day after its date. A., the day after giving the said single bill, &c., entered into amicable actions, and confessed a judgment to D. and E., and also one to the said D. and E., and E. and G-., to secure them, the said D. and E., and D., E., E., GK, as stated in the record of the amicable actions and confessions of judgment, for liabilities incurred as bail for him, the said A. The actual amount of the said liabilities, not being immediately ascertainable, the said judgments were each confessed for a greater sum than the amount thereof. Executions were immediately issued on the said judgments, ■under which the personal property of the defendant, the only species of property owned by him, was sold. The plaintiffs, having ascertained the 'amount of their liabilities, and filed the same of record, claimed and received no more out of the proceeds of sale, than the amount to which it appeared they were justly entitled. The said judgments, it also appeared, were given in redemption of a promise by the defendant to the plaintiffs, when they became responsible for him, to give them the first judgments: Meld, in an issue directed by the court, to try whether the said judgments and executions were fraudulent, and given to delay, hinder, and defraud the plaintiffs of their just debt against Isaac Heiney, the defendant therein; that, as a debtor may prefer one creditor to another, by giving judgments for honest purposes, and as the plaintiffs in the said judgments neither claimed nor received more out of the proceeds of sale by the sheriff, than the amount to which it appeared they were justly entitled, that the confessions of the said judgments, and the issuing of executions thereon, for greater sums than the amount actually due and owing by the defendant to the plaintiffs, were not fraudulent per se, nor given to hinder, delay, or defraud the plaintiffs in the issue, nor subsequent creditors, of their just debts.
    In error from the Common Pleas of Lancaster county: Judge Hats presiding specially.

      May 15. This was an issue directed by the court, in which Isaac Davis and George W. Hamersly were plaintiffs, and John Charles, sen., and John Charles, jun., defendants, to try whether two judgments and executions of the said defendants and others against one Isaac Heiney, were fraudulent, and given to delay, hinder, and defraud the said plaintiffs of their debt against the said Isaac Heiney.
    The declaration contained two counts: the first averred that the judgments were fraudulent, &c.; and the second averred that the executions were fraudulent, &e. Issue was joined on each count.
    It appeared that Isaac Heiney, being indebted to Isaac Davis and George W. Hamersly, the plaintiffs in the issue, in the sum of $1,330, gave them a single bill for that sum, dated the 9th of January, 1846, and payable one day after date, with warrant of attorney to confess judgment. Judgment on the bill was entered in the Common Pleas of Lancaster county, on the 12th day of January, 1846, to November term, 1845, No. 116; and on the same' day, a writ of fieri facias was issued thereon, to January term, 1846, No. 53. On the 10th of January, 1846, the day after Isaac Heiney had given the judgment note to Davis and Hamersly, he informed John Charles, sen., and John Charles, jun., that he had given the said judgment note to Davis and Hamersly, and requested them to meet him in Lancaster on that day. . They accordingly met him in Lancaster, when he the said Isaac Heiney entered into two agreements with them, for amicable actions with judgments, in the one case, for the sum of $3,000, with a release of errors and without stay of execution, “to secure the plaintiffs as bail for the defendant in the Savings Institution and Farmers’ Banlc, to McManus and certain persons in Philadelphia and elsewhere, and to enable the plaintiffs to raise money to pay the same;” in the other case, for $1,000, without stay of execution, “to secure and enable the plaintiffs (John Charles, sen., John Charles, jun., Alexander Cassidy, and Christian Shenlc) to pay certain debts for which the said plaintiffs were jointly and separately bail for the defendant, to the Lancaster County Banlc, to the Savings Institution, and to other persons.”

    Those judgments were entered on the said 10th day of January, 1846, and executions immediately issued thereon, and put into the hands of the sheriff, who noted the time of their reception as being ten o’clock and five minutes in the morning.
    Davis and Hamersly’s judgment was entered on the 12th of January, and execution was issued upon it, and delivered to the sheriff on the same day.
    Isaac Heiney had no real estate. His only property was personal ; and this was all levied upon by virtue of the first executions, and sold, producing the sum of $1,799.30.
    , The reasons for giving the two judgments were stated on the record of the agreement for amicable actions, with judgments.
    It appeared that Isaac Heiney had promised, when the plaintiffs in the said two judgments became responsible for him in the various notes and single bills which were produced in evidence, that he would give them the first judgment; and that the arrangement, in giving and taking the judgments on the 10th of January, was but the performance of that promise; that the amounts for which the judgments were entered in pursuance of the agreements, were set down in the sums mentioned because they were uncertain as to the amount of the liabilities with respect to which the judgments were intended, by the terms of the agreement, to secure them.
    Isaac Heiney (who was called and examined as a witness) stated that he told the Charles’s and Cassidy and Shenk, when' they endorsed for him, that he would give them judgments to secure them — the first judgment — and that he gave these two judgments to carry out that engagement, and to redeem his promise; that when he gave the judgments to them, it was not known what the debts all amounted to, and it was on that account that the judgments were given in the amounts expressed; the one for $3,000, and the other for $1,000. He further stated, under objection by the plaintiffs, that he owed to John Charles for money lent and advanced, and to Dr. Cassidy, for a bill or account, considerable sums, at the time he gave these judgments, which debts were not secured by them, as they were given to secure ,the parties only for the debts incurred by them as his sureties.
    This was plaintiffs’ first HU of exception.

    On the 27th day of January, 1847, a paper was filed which set forth the liabilities of John Charles, sen., John Charles, jun., Alexander Cassidy, and Christian Shenk, for Isaac Heiney, covered by the said two judgments, and by which it appeared, that the whole amount, principal and interest, to that date, on all their -liabilities, was $1,799, being twenty dollars less than the nett proceeds arising from the sale of the property of Isaac Heiney.
    The second lili of exception of the plaintiffs was to the rejection of evidence offered by them to show that Hamersly, one of the plaintiffs in the issue, went to the office on the 11th day of January, to enter judgment on the single bill and warrant given to Isaac Davis and himself by Isaac Heiney; and when he discovered that the two judgments aforesaid were entered of record, he withdrew without entering it, and did not enter it until the day after.
    The plaintiffs requested the court to charge the jury on the following points, and to file their charge thereon of record:—
    1st. The interest of parties is to be judged from their acts: every act unwarranted by law, to the prejudice of another, is fraudulent in law; and every illegal transaction which has a direct tendency to delay, hinder, or defraud creditors in the collection of their just debts, is void against such creditors, the fraudulent intent of the parties being conclusively established as an inference of law from such tendency.
    2d. It is illegal for a judgment creditor to issue an execution against his debtor for more than is due to him, or to take a judgment by confession and issue execution for an indefinite amount, without ascertaining or taking any steps to ascertain the amount due, and if the effect of such execution is to delay, hinder, or defraud other creditors, it is void against such creditors.
    3d. Although a surety may issue execution on an absolute judgment taken to indemnify him against a debt not yet paid by him, yet he must take care, before issuing such execution, to ascertain the amount of the liabilities for which such judgment was taken, and if, while another creditor is about proceeding to take out execution, the surety, in view thereof, and without taking any steps to ascertain the amount due, takes from the debtor a confession of judgment and issues an execution, for a sum which proves to be more than double the amount due, such execution is fraudulent in law, and invalid against the subsequent execution of the creditor so proceeding.
    4th. The endorsement upon an execution of the real debt due is, in the absence of other instructions from the plaintiff, a mandate to the sheriff to levy the amount so endorsed of the property of the defendant, and if such amount is more than is actually due, it is fraudulent and void against a creditor issuing a subsequent execution, if done either intentionally or by collusion with the debtor without any endeavour to ascertain the amount due, and the fact that the property levied on did not realize more than sufficient to pay the real debt due, will not avail to give it validity.
    5th. In the principles of law contained in the foregoing points, applied to all the evidence in this case, the execution issued on the 10th of January, 1846, by the defendants against Isaac Heiney, was void and inoperative to prevent the action of the execution issued against him by the plaintiffs on the 12th of the same month, and the verdict must therefore be for the plaintiffs.

      Answers of the court to the above points. — 1. The intent of parties is to be judged by their acts — i. e. all them acts in the transaction drawn into controversy. Every act unwarranted by law to the' prejudice of another, is fraudulent in law. And every illegal transaction, which has a direct tendency to delay, hinder, or defraud creditors in the collection of their just debts, is void against such creditors — if devised to the end, purpose, and intent to delay, hinder, or defraud them of their just and lawful actions, suits, debts, &c. The fraudulent intent is to be judged of from all the facts proved in the case.
    2. It is illegal to take such a judgment, or issue such an execution, with the intent to delay, hinder, or defraud other creditors; and a judgment or execution with such intent, is void against creditors.
    8. We regard the two agreements and judgments given to Charles and others, not as fraudulent, in law, — a fraud in law being such as is not susceptible of any 'explanation by facts; but we regard them as evidence to be considered in connexion with all the circumstances in evidence, from which the issue is to be determined; i. e. whether or no the judgments were had and made of fraud, to the end, purpose, and intent to delay, hinder, and defraud the plaintiffs of their just and lawful debts against Isaac Heiney.
    4. Answered in the affirmative, if done with the purpose and intent to delay, hinder, and defraud the plaintiffs of their just debt.

      5. The fact of the “purpose and intent” with which the judgments were entered and the executions were issued, to be gathered from all and every part of the evidence, is for the jury to determine. There is nothing in the case to make it imperative or proper for the court to instruct you that the agreements, judgments, and executions of the 10th of January, 1846, were a fraud in law. If you believe they were had and made to the end, purpose, and intent, to delay, hinder, and defraud Davis & Hamersly and other creditors of them just debts, then they are fraudulent and void, and your verdict ought to be for Davis & Hamersly, the plaintiffs; if otherwise you believe they were not intended for such purpose, your verdict ought to be for John Charles, sen., and John Charles, jun., the defendants.
    The plaintiffs excepted to the charge. The jury returned a verdict for the defendants, whereupon the plaintiffs sued out this writ of error.
    Assignment of errors: 1. The court erred in admitting' the evidence contained in the first bill of exceptions.
    2. The court erred in rejecting the evidence contained in the second bill of exceptions.
    S. There is error in each and every of the answers of the court to the several points propounded to them on the part of the plaintiffs.
    4. There is error in the general charge throughout in referring matters of law to the jury, and leaving to them the decision of matters involving fraud in point of law, on which the court were bound to instruct them.

      Franklin and Frazer, for plaintiffs in error,
    cited 2 Watts, 302; 4 Bacon, Bouvier’s, 404, 382, 385; 5 Barr, 320; 1 Rawle, 349; 2 Pa. R. 82; 12 S. & R. 198; 7 Watts, 434 484 ■■ 5 Rawle, 286; 3 W. & S. 285; 5 Barr, 478; Rob. Dig. 301, 302; 3 Pa. R. 83; 1 Barr, 286 ; 4 Wend. R. 100.

      Stevens, contó, cited
    3 Penn. R. 83 and 374; 4 Wend. R. 100; 5 Barr, 478.

      May 24.
   Burnside, J.

There was nothing concealed in the amicable confession of judgments. They expressed on their face the consideration and their object. One was to secure the plaintiff in a judgment as bail of the defendant in the Savings Institution and Farmers’ and Mechanics’ Bank, and to McManus and certain Philadelphia creditors and elsewhere. The other was to secure and enable the plaintiffs to pay certain debts for which they were jointly and separately bound for the defendant to the Lancaster Bank and Savings Institution and to other persons. Private debts of one of the plaintiffs in the confession of judgments, which then existed, were not included. .. As the amount of the liabilities expressed could not be immediately ascertained, each amicable confession was given for a specific sum; but this did no injury to any one. The levy and amount of sale but little exceeded the actual liabilities the confession of judgments were given to secure. If there was an excess, it was not claimed, but went to subsequent executions. There was evidence, that when the defendants went bail for Heiney, who had no real estate, he promised to give them the first judgment, and these judgments were only given to cover their liabilities.

The plaintiffs in error, who were plaintiffs below, insist that this was an illegal and fraudulent transaction, and had a direct tendency to hinder, delay, and defraud them, because these confessions of judgments and the executions postponed the executions on their judgment, which was given prior with a stay for one day. There is no allegation of actual fraud, but it is said to be fraud per se, to give a friend confession of judgment that will cut out the first judgment, and especially in issuing execution for more than the actual liability, and before the liabilities were ascertained; and that it was error in the court to leave the question of fraudulent intention to the jury, to be judged of by the facts proved in the case. It has never been deemed a fraud in Pennsylvania, or elsewhere, that I know of, for a debtor honestly to prefer one creditor to another, by giving a judgment; and certainly a judgment may be legally confessed to secure bail. I agree that all deceit, deceptions, tricks, or artifices, by which the rights or interests of another are injured, are fraudulent.

Fraud is never presumed — it is to be proved; and whenever it appears it is deemed odious in the eye of the law, Co. Lit. 36. Covin is the same as fraud. Lord Coke defines covin to be a silent assent, determined in the hearts of two or more to the defrauding and prejudice of another. Co. Litt. 357.

If the plaintiffs in the executions had claimed' more money than the amount they were actually bound for, it would have been actual fraud.

We think the court was right in refusing to instruct the jury that the confession of judgment in the case under this evidence was per se fraudulent; and that the cause was fairly put to the jury by the learned judge. The transaction was open.

Judgment affirmed.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    Sharett’s Road.
    If the act of incorporation of a borough confers no authority on the corporation to lay out and open, but only to regulate, repair, and maintain the streets, lanes, and alleys therein; the Court of Quarter Sessions of the county possesses the power, under the then existing road-laws of the commonwealth, to lay out and open streets, &c., within the same, and to cause the damages therefor to be assessed.
    Where, in such case, an alley was laid out and opened in a borough, by the road and street commissioners thereof, under a special act of Assembly of the 30th of March, 1846, which authorized and required them to perform the said duty, but which provided no mode of compensating the owners of the lands through which the said alley passed, for the damages thereby sustained: Sold, that the special act was not unconstitutional, as it only interfered with the general road-law of the 13th of June,. 1836, to the extent of the agency used in laying out and opening the alley, but that it did not withdraw the case from the operation of the general road-law providing for the assessment of the damages sustained by the owners of lands for and by reason of laying out and opening the said alley, nor deprive the Court of Quarter Sessions of the county of its power to give eifect to those provisions; and that the special act of 1846 was therefore to be construed and treated as part of the general road-law of 1836.
    Under the resolution of the 29th of May, 1840, the seventh, eighth, and ninth sections of the act of the 13th of June, 1838, which provide for the assessment of road damages, are extended to claims for damages, in consequence of injury sustained from the location and opening of a road under the provisions of any special act of Assembly: unless where the same is otherwise provided for by law.

      Street or alley, in an incorporated town, is synonymous with road, within the meaning of the resolution of 1840.
    A petition for the assessment of damages sustained by reason of laying out and opening an alley, in the name of the owner of the land through which it passed, and signed for him by his agent as such, is a sufficient compliance with the act of Assembly.
    Certiorari to the Quarter Sessions of Adams county.

      May 15. It appeared from the record brought up in this case, that an alley was laid out and opened for public use, in the borough of Gettysburg, by the street commissioners of said borough, under a special act of Assembly, of the 30th of March, 1846; and that this act did not provide any mode of compensating the owners of the lands through which the said alloy passed, for the property thus appropriated for public use. A petition was thereupon presented to the Court of Quarter Sessions of Adams county, for Sharett, one of the land-owners in said case, signed by his attorney in fact as such, and for the said Sharett. This petition was in the following form:—
    “ The petition of the subscriber respectfully represents, that by virtue of an act of Assembly there was lately laid out, in the borough of Gettysburg, a public alley, from a point at or near the property of John Barrett, on Middle street, running parallel with Baltimore street to a point on High street, at or near the corner of the lot owned by George Kerr’s heirs, which said alley passes through and greatly injures a lot, as well as the appurtenances and improvements thereunto belonging, of John F. Sharett, who, through the subscriber, prays your honours to appoint viewers to ascertain and assess the damages. And he will pray, &c.
    William Dysert, Agent for John F. Sharett.”
    Upon this application, the court appointed viewers, who assessed and reported damages in favour of Sharett. To this report exceptions were filed; and a rule to show cause why the report should not be set aside, was granted. His honour, Judge Irwin, after argument, confirmed the report. This writ was thereupon sued out, and the following errors assigned: — •
    1. The court erred in their opinion that the provisions of the act of 29th of May, 1840, extending the provisions of the general road-law to roads opened under the provisions of any special act of Assembly, cured the defect in the act of 80th March, 1846, under which this alley was opened, and which made no provision for compensation to owners of the land through which said alley was to pass.
    2. The court erred in their opinion that the Court of Quarter Sessions of Adams county had power over the streets, lanes, and alleys in the borough of Gettysburg, and could lay out and open the same through said borough, notwithstanding the powers and authority granted to said borough under its charter.
    . 3. The court erred in their opinion that the petition presented was and is in the name of “the owner,” and is such as is required by the act of Assembly of 13th June, 1836.
    4. The court erred in overruling the exceptions and confirming the report of the viewers.

      Stevenson, for plaintiff in error,
    cited Acts of 1846, p. 20T; Pamphlet Laws of 1806, p. 423. Contends that the above acts give authority to open streets to the borough of Gettysburg instead of the Quarter Sessions: 3 Rawle, 195; Charter of the Borough of Mercer, Pamphlet, 14, 265, sec. 4; Newville Charter, Pamphlet Laws, 1817, 62, sec. 6; 8 Watts, 175; Pamphlet Laws of 1840, 752, 751; Section 22 of the Act of 1836, Road-Law; 1 Barr, 314; Act of 1836; 3 Watts, 475; 1 Barr, 442; Act of 1810, relative to Justice of the Peace; Act of 1833, entitled Errors and Appeals.

      M’Oreary, contó.
    1 Barr, 355; 8 Watts, 175; 3 Barr, 331; 4 S. & R. 106. ■

      May 19.
   Bell, J.

The alley in question was laid out and opened by virtue of a special act of Assembly, approved the 30th of March, 1846, authorizing and requiring the street and road commissioners of the borough of Gettysburg to lay out and open a public alley in the said borough, between certain points particularly designated. As this act provides no mode for compensating the owners of the lands appropriated under it to public use, the question is presented whether a remedy is furnished by any of our statutes regulating roads and highways. If not, the act itself is in contravention of the constitutional prohibition forbidding the application of private property to public uses without just compensation being made. (City of Pittsburg v. Scott, 1 Barr, 314.) But a very short argument will suffice to show it does not occupy this hostile position. The cases of the roads in the borough of Mercer, 14 S. & R. 447, and borough of Newville, 8 W. 172, decided under their acts of incorporation, which, so far as they relate to roads, streets, and alleys, cannot be distinguished from the act of 1806 incorporating the borough of Gettysburg, conclusively settled that the Court of Quarter Sessions of Adams county possess the power under the general road-laws of the commonwealth, to lay out and cause to be' opened streets, lanes, and alleys within the borough of Gettysburg,' and to assess damages therefor. The Easton Road case, 3 R. 195, in which the court was divided, would seem at first blush to give countenance to a different doctrine. But it was decided upon the peculiar language of the charter of the town of Easton, which was thought to repeal the general road-law, so far as it respected that place. It was so treated by Mr. Justice Sergeant in the Newville Road case, and, indeed, cannot be sustained on any other ground. So much inconvenience followed upon this decision denying the existence of authority anywhere to open streets in Easton, that the legislature was induced to interfere by resolution of the 29th May, 1840, which confers upon the Court of Quarter Sessions of Northampton county the necessary power to open such streets, and to make compensation to the owners of the land taken for the purpose. These resolutions were undoubtedly adopted in reference to and approval of the other two cases I have cited as recognising the general power of the courts over these subjects.

The Court of Quarter Sessions of Adams county being possessed of this jurisdiction, the special act of 1846 only interfered with it to the extent of directing the alley to be laid out and opened by the street and road commissioners, instead of a jury of view, acting under the supervision of the court. But this by no means withdrew the case from the operation of the general road-law of 1836, providing for the assessment of the damages sustained by owners, nor deprived the court of its power to give effect to those provisions. The act of 1846 was interposed as a substitute for the act of 1836, so far as it went, and no further. Beyond this, the earlier statute remains untouched, and the last is to be construed and treated in connexion with and as part of it: IBarr, 353; Neeld’s Road. If, then, the' question rested here, no doubt could be entertained, under the doctrine of the cases I have referred to, of the legitimate exercise in this instance of a power possessed by the court below. But this is not all. The resolution of the 29th May, 1840 (P. L. 152), especially directs that the seventh, eighth, and ninth sections of the act of 1836, regulating the subject of road damages, shall be construed to apply to claims for damages in consequence of injury sustained from the location and opening of a road under the provisions of any special act of Assembly, unless where one is otherwise provided. This provision, enacted ex majore cautela, of itself, brings the present case within the operation of the general road-law, and without more, justifies the action of the Quarter Sessions.

It is, however, objected, that a street or alley in an incorporated town, is not a “road” within the meaning of the resolution. But this objection, which is somewhat hypercritical, is fully answered by the decision of this court, in the case of the Moyamensing Road, 4 S. & R. 106, where it is shown — the word “street” is equivalent, in common parlance, to road or highway. Indeed, a street is strictly a road, and may be and frequently is so denominated, without any violation of grammatical propriety.

Another exception to these proceedings is, that the petition asking for the assessment of damages, was not signed by the owner of the land. But it is in the name of the owner, and is signed for him by his attorney in fact. That this is a sufficient compliance with the act of Assembly, was decided in Harvey v. Lloyd, 3 Barr, 340.

Proceedings affirmed.


text:
    Commonwealth v. Duncan.
    A sheriff, in an action of debt against him for an escape, under the statute of 1 Rich. ch. 12, compromised th’e claim in suit, before judgment, with the agent and attorney of the plaintiffs, by paying a certain sum, for which he took a receipt in full satisfaction from the said attorney. After the said compromise and payment, the sheriff sold and conveyed a certain portion of his real estate, upon which his official recognisance was a lien to one P., who went into possession. Subsequently to these transactions, the action of debt which had been compromised and paid as aforesaid, was proceeded in, and judgment recovered against the defendant, the said sheriff, who neglected to take defence and show the compromise and payment aforesaid. P., the purchaser and terre tenant had no notice of this last proceeding: Held, in a scire facias against the sheriff, on his official recognisance, with notice to the said P., the terre tenant, suit against the sureties in the said recognisance being barred by lapse of time, to show cause why execution of the judgment on the action of debt aforesaid should not be had of the real estate sold by the said sheriff to the said P., that as the sheriff, the defendant in the action of debt, could have set up the compromise and payment of the claim sued for, against the subsequent recovery of judgment therein against him, but which he neglected to do, that P., the terre tenant, could avail himself of the same defence on the the trial of the scire facias.

    In error from the Court of Common Pleas of York county.

      May 16. This was a special scire facias on the official recognisance of Andrew Duncan, as sheriff of York county, brought by the Commonwealth of Pennsylvania, for the use of Isaac Darst, Henry Darst, and Jacob Darst, then for the use of Isaac Darst, against the said Andrew Duncan, with notice to terre tenants.

    The paper-book contained only the writ of scire facias and the special plea, in which the facts of the ease, so far as developed, are stated. The recitals and purport of the writ of scire facias, are sufficiently stated in the opinion of this court. The special plea to the scire facias was put in by one William Patterson, the only terre tenant who appeared and took defence, and was as follows:—
    “William Patterson, terre tenant by leave of court, pleads and says, that the plaintiff ought not to have and maintain his aforesaid action against his, the said William Patterson’s house and half lot of ground, in the borough of York, in said York county, upon which said-recognisance in the plaintiff’s scire facias mentioned is a lien, because he says that whilst said suit against said Andrew Duncan in plaintiff’s scire facias mentioned was pending in said Circuit Court, and said claim of said Isaac Darst was contested in said suit by said Andrew Duncan, to wit, on the 17th day of July, A. D., 1833, at York county aforesaid, said Isaac Darst authorized one John L. Fuller, who was then and there the attorney and agent of said Isaac Darst, to compromise and settle his said claim and suit with said Andrew Duncan; and that afterwards, while said suit was pending in said Circuit Court, and said claim of said Isaac Darst was contested by said Duncan, to wit, on the 15th day of April, A. D., 1834, said John L. Fuller, in pursuance of said authority from said Isaac Darst, and as his attorney and ■agent, did compromise and settle said suit and claim with said Andrew Duncan, for the sum of $1,050, and said Andrew Duncan then and there paid said John L. Fuller for said Isaac Darst, and said John L. Fuller then and there received for said Isaac Darst, said sum of $1,050, in full satisfaction of said suit and claim of said Isaac Darst against said Andrew Duncan, he, the said John L. Fuller, being the attorney and agent of said Isaac Darst, and having full power and authority so to do; and that after said compromise and payment, and before the recovery of said judgment against said Andrew Duncan, in said suit in said Circuit Court, to wit, on the 15th day of January, A. D., 1839, the said Andrew Duncan, by his deed of that date in consideration of $3,500, to him paid by the said William Patterson, conveyed to the said William Patterson the said house and half lot of ground, in this plea first above named. All which the said William Patterson is ready to verify; wherefore he prays judgment if the said plaintiff ought to have and maintain his aforesaid action against the said house and half lot of ground.”
    On a demurrer by the plaintiffs to this special plea, in which William Patterson, the terre tenant, joined, all the other pleadings being withdrawn, the court gave judgment against the plaintiffs. This writ of error was, thereupon, sued out by the plaintiffs, and the judgment of the court assigned for error here.

      Fisher and Jlamlly, for plaintiffs in error,
    cited Act of 28th of March, 1803, Pur. Dig. 6th ed. 972; 5 Bin. 188; 13 Edw. 1, ch. 45, 1 Rich. ch. 12, Robert’s Dig. 239; Act of 5th December, 1789, Pur. Dig. 524; Miller v. Commonwealth, 5 W. & S. 489; Hauer’s Appeal, 5W.&S. 473, 474.

      Campbell, contó.
    It is admitted in the pleadings, that the plaintiff’s claim was paid and satisfied before the terre tenant purchased the real estate upon which the recognisance is a lien; and the question is, whether he shall be permitted to recover it a second time from an innocent purchaser, or whether it is competent for the purchaser to prove that it was paid ?
    The original suit against the sheriff was not on the recognisance, but was an action of debt on the statute of Richard, in which he neglected to take defence on the plea of payment. Of this suit, the terre tenant had no notice, and the judgment in it was recovered after the real estate was conveyed to him.
    A judgment in a proceeding on the recognisance, of which the terre tenant had no notice, would not bind him; much less will a judgment obtained in an action of debt against the sheriff -alone, of which the terre tenant had no notice. It falls within the rule of res inter alias acta.

    The case of Miller v. The Commonwealth, 5 W. & S. 494, decides only that the recognisance is notice; not that the terre tenant cannot prove that the particular claim set up under it is paid.
    A recognisance is not a higher security, nor a greater notice, than a mortgage. Yet, after judgment against the mortgagee, in a suit of which the terre tenant had no notice, the latter can, in an ejectment against him, prove that the debt was paid: Nace v. Hollenbach, IS. & R. 548; Mather v. Clark, 1 Watts, 441; Cowan v. Gretty, 5 Watts, 531.
    So where a judgment has been recovered against an executor or administrator, the heirs can afterwards show, in a scire facias against them to recover it out of the real estate, that the claim is unfounded: Murphy’s Appeal, 8 W. & S. 165.
    The case of Masser v. Strickland, 17 S. & R. 354, was a decision by a majority of a divided court, and based on the peculiar provisions of the law in relation to the sureties of constables. This decision was adhered to in the case of Evans v. The Commonwealth, 8 Watts, 398, as an established exception, and admitted to be against the rule -of analogy.
    Rut the case of Carmack v. The Commonwealth, 5Rinn. 184,-is decisive. In that case it was decided, that a judgment against the sheriff does not bind his sureties, and the contrary doctrine was pronounced “too unreasonable to be sanctioned.”

      May 22.
   Burnside, J.

The paper-book shows that a judgment was obtained in the Circuit Court of the United States for the eastern district of Pennsylvania against Duncan, sheriff of York county, who had arrestéd one Jacob Both on a ca. sa., and who had escaped. This was a special scire facias against Sheriff Duncan, with notice to his terre tenant, William Patterson, on his recognisance : 1. Beciting the recognisance of Duncan, and that of John Hartman and others his sureties. 2. Beciting the act of 5th December, 1789, Dunlop, 124, which makes it the duty of all sheriffs, gaolers, prison-keepers, and their deputies, safely to keep in custody all persons committed under the authority of the United States, and avowing that Both was committed by Marshall Bonsall to the custody of Duncan on a ca. sa., from whom he escaped. 3. That at October sessions, 1833, Isaac Davis and others instituted their action against Duncan, which was tried on the 15th November, 1839, when a recovery was had for $2,000.43, with interest from the 24th November, 1832, with $175.94 costs. 4. Showing that Hartman and all the sureties were discharged, and the claim barred as to them from lapse of time. 5. Bequiring Duncan, and the terre tenant Patterson, and others, to appear and show cause, &c.

So far as we know, Patterson only appeared and put in the special plea, which is in the statement of the case. To this special plea the plaintiff demurred, and the counsel of Patterson joined in demurrer (all other pleas being withdrawn); and the court entered judgment against the plaintiff on the demurrer. This is the error complained of.

The demurrer was to facts, parol and written; among these was Puller’s receipt in full satisfaction. The law is well settled that every fact stated is to be taken as true against the person demurring: 15 S. & R. 231; Feay v. Decamp; 4 Yeates, 54; Rose v. Eason; 11 S. & R. 229.

It is contended-by the plaintiff that the judgment against Duncan is conclusive against Patterson, the purchaser and terre tenant who purchased after the date of the recognisance. This is the first opportunity Patterson the terre tenant has had to present his case. He is now called on to show cause why the judgment should not be levied out of his particular estate.

The principle that the terre tenant can come in and defend is settled in many cases: Cowan v. Gretty, 5 Watts, 531; Nace v. Hollenback, 1 S. & R. 540; Marpley’s Appeal, 8 W. & S. 165; Benner v. Philips, 9 W. & S. 13. There is no issue before the court; nothing but the special plea and the demurrer. The demurrer admits the fact that Darst constituted Fuller his attorney and agent to settle his claim,1 for the escape with Duncan; that he did settle it for $1,050; that the money was paid to Fuller, as attorney and agent of Darst, and a full discharge given; that after this Duncan sold the house and half lot in York to Patterson, and received $3,500, the full consideration. How a judgment came to be obtained against Duncan in the Circuit Court, after his settlement of the action with Fuller, we are unable to conjecture. The special plea is a discharge to Patterson; its truth has been admitted by the demurrer.

Judgment affirmed.


author: Coulter, J.

text:
    Walt’s Administrators v. Swinehart.
    Under the act of the 16th of April, 1840, a valid and subsisting judgment may be transferred, after the death of the plaintiff therein, from the court of the county in-which it was originally obtained and entered, to the court of another county; and the suggestion of the death of the party, and the substitution of administrators, maybe made before the transfer, in the court of the county in which it was originally obtained and entered, or after the transfer, in the court of the county to which it may have been transferred, for the purpose of proceeding to execution.
    Such transfer, where there is no administrator, may be made by a creditor to secure the assets; and so, it seems, may it be made by an heir, under similar circumstances.
    In error to tbe Court of Common Pleas of York county.

      May 16. The questions were: — 1st, Whether, after the death of a plaintiff in a judgment, the judgment could be transferred, under the act of the 16th of April, 1840, from the records of the court of the county in which it was originally obtained and entered, to the records of the court of another county: the judgment being a valid and subsisting one, at the time of the death of the plaintiff therein, and at the time of the transfer. 2d, Whether the suggestion of the plaintiff’s death, and the substitution of administrators, could be made in the court of the county to which it had been transferred, for the purpose of proceeding to execution, and at whose instance such transfer, suggestion, and substitution could be made, where no administrator had been raised previously to the transfer. It appeared, that to August Term, 1821, No. 92, a judgment by acknowledgment was entered of record in the Court of Common Pleas of Montgomery county, in favour of Henry Walt, against George Swinehart, who was then a resident of the said county. It did not appear that any proceedings were had on this judgment, until the defendant had removed from the said county of Montgomery, when a writ of sci. fa. post annum et diem, et qu. ex. non, was issued thereon to February Term, 1840, No. 45, which was returned “nihil.” An al. sci. fa. &c., was thereupon issued to May Term, 1840, No. 8, which was also returned “nihil;” whereupon, “ on the 25th of May, 1840, judgment for want of appearance was entered.” It appeared that Henry Walt, the plaintiff in the said judgment, died previously to 1844, but when, did not appear; that after his death, and before letters of administration were granted upon his estate, the judgment, which was a valid and subsisting one, was transferred under the act of the 16th of April, 1840, from the records of the Court of Common Pleas of Montgomery county to the records of the Court of Common Pleas of York county: and entered there on the 23d of October, 1844, to August Term, 1844, No. 132; and that on the same day, the death of the plaintiff was suggested and his administrators substituted. To January Term, 1845, No. 17, a writ of fieri facias was issued on the judgment, under which the sheriff levied upon the personal and real estate of Swinehart, the defendant. The paper-book did not disclose at whose instance the transfer of the judgment, &c., was made.
    On the 8th of January, 1845, the court, on motion of defendant’s counsel, and affidavit filed, granted rules to show cause why the entry of the judgment in the Court of Common Pleas of York county, to August Term, 1844, No. 132, should not be set aside, and the same stricken from the records; and why the fieri facias, and all proceedings under it, should not be set aside. On the 17th of March, 1845, the court, after argument, made these rules absolute. On the 9th of May, 1845, the plaintiffs, by their attorney, moved the court to strike off their order of March 17th, 1845, making the rules to show cause absolute; to discharge the said rules, and to reinstate the judgment, fieri facias, and all proceedings thereon, or to give such relief as the case required. The court ordered the motion to be entered, but dismissed the same on the 13th of May, 1845. The plaintiffs thereupon sued out this writ, and assigned the following errors here:—

      1. The court erred in making absolute the rule to show cause why the entry of the judgment No. 132 to August Term, 1844, should not be set aside, and the same be stricken from the records.
    2. The court erred in making absolute the rule to show cause why the fieri facias in this case, and all the proceedings upon it, should not be set aside.
    8. The court erred in refusing to restore the judgment and fieri facias, and all the proceedings had on the same, when asked so to do by the plaintiff, on 9th day of May, 1845.

      Fisher, for plaintiff in error.

      Fvans and Mayer, contó.
    It must be obvious that the act of 1840 contemplated the existence of the parties to the judgment in full life. The acts of Assembly in pari materid, have always been so construed: Act 20th March, 1810, see. 10 and IT; Justice’s Law, Purd. Tth ed. 68T, 690; Act 29th March, 1832, sec. 29, Orphans’ Court, Purd. 891. In Rowland -v. Harbauglq 5 Watts, 365 — 6, this court has only developed some of the incongruities which would result from a different understanding of the acts. The proceedings on a justice’s transcript transferred to another county, as sanctioned in Keck v. Applebaugh, 2 Penn. R. 465, the instant execution, could not have been authorized if the parties to the judgment, or any of them, had been dead: in this sec. IT we have the germ of the act of 1840. If this act allowed a transfer, without living parties, from one county to another, then it allows a transcript from a justice to be entered on the docket, and transferred under the same circumstances. The statutes which authorize the substitution of parties, provide new parties, and do not allow the suit to proceed without them.
    A judgment confessed when the plaintiff is dead, is void: Finney v. Ferguson, 3 W. & S. 413; and will be set aside, however entered: Ilurst v. Fisher, 1W. & S. 438 ; Kennedy v. Pickering, Minor R. 13T.
    If the act of 1840 did not contemplate a transfer, with all its attendant circumstances and consequences, after the death of the parties, then it no more authorized the transfer, in this case, than if it had never been passed. There was no jurisdiction, and the transfer was a nullity: Elliott v. Piersol, &e., 1 Pet. 340; nor was it the act of the court: Allison v. Rheim, 3 S. & R. 141.

      May 18.
   Coulter, J.

The judgment in this case was a subsisting and valid judgment at the time of its transfer from the . records of the county of Montgomery to those of the county of York. The death of the plaintiff neither obliterated, suspended, nor annulled its lien, or its efficacy. The act of the 16th of April, 1840, was intended by its very terms to give something in addition to and beyond all existing modes of making the lien of a judgment commensurate with the estate of defendant. And upon its transfer to the records of another county, it is to have, by the words of the act, “the same force and effect as to lien, revival, execution, &c., as if the judgment had been originally entered on the docket of the court to which it may be transferred.” Now, if the judgment had been originally obtained in York county, it cannot be questioned but that its lien would have remained good after the death of the plaintiff. The case cited from Minor is of no weight here. That was a judgment originally rendered in favour of a dead man. Here the judgment was rendered in favour of a living man, good at the time it was entered, and good after his death. We see no objection whatever in allowing the creditor of a deceased person to transfer a judgment of his debtor in order to secure the assets, when an administrator has not been appointed and qualified to act. The value of the judgment, and indeed its lien, may oftentimes depend upon promptitude of action. Nor do we perceive any incongruity, in permitting the heirs to do the same thing under like circumstances.

Where a verdict has been rendered in favour of a living plaintiff, judgment may be entered on it after his death, as of any time when he was living. And an execution issued in favour of a living plaintiff, may be levied and returned after his death.

It was a good and valid judgment when transferred to York county, and the suggestion of the death of the plaintiff, and the substitution of his administrator, could be as well made in the court of York county after the transfer, and for the purpose of proceeding to execution, as it might have been done before in the county of Montgomery.

The court of the county of York, therefore, erred in striking off the judgment and setting aside the execution. And these orders of the court are reversed, and the plaintiff is at liberty to proceed in the execution of his judgment.

This view of the case renders it unnecessary to consider the third error assigned.


author: Rogers, J.

text:
    Small v. Commonwealth.
    The official bond of an administrator de bonis non, aim testamento annexo, must state specifically the nature and character of his administration, and be in conformity therewith; and if the bond, in such cases, be merely in the prescribed form of ordinary administration bonds, neither the administrator, nor his sureties, axe liable in an action thereon to recover a legacy.
    In error to the Court of Common Pleas of York county.

      May 16. This was an action of debt brought on an administration bond, to recover a legacy, in which the Commonwealth, for the use of John Walck, a legatee under the will of Dietrick Walck, deceased, and defendant in error, was plaintiff, and Philip A. Small, a surety in the administration bond, and plaintiff in error, Was defendant. The facts of the case, as if found by a special verdict, were submitted for the opinion of the court below, in a case stated, with leave to take a writ of error, and were in substance as follows:—
    Dietrick Walck, in and by his last will and testament, which was duly proved and recorded on the 7th March, 1834, gave certain legacies to John Walck, the plaintiff below, and others, and appointed one Jacob Lehman his executor. Lehman, the executor, filed his administration account in the register’s office of the county, on the 26th day of May, 1835, which was duly confirmed by the Orphans’ Court. The account exhibited a balance of $973.88, in the hands of the executor and in favour of the estate. On the 4th of August, 1835, Lehman presented a petition to the Orphans’ Court, setting forth, that he had settled an account of his administration of the testator’s estate, which had been confirmed by the court, and prayed to be discharged from the further execution of the said trust. The court thereupon discharged him, and on the same day, on motion made to that effect, appointed Henry Y. Slay-maker administrator de bonis non of the estate of the said Die-trick Walck, deceased, on his giving bail in double the amount of the balance in favour of the estate as exhibited by the account of Lehman, the executor. On the 24th of August, 1835, Slaymaker, with Philip A. Small, the defendant below, and another as his sureties, executed and delivered a bond as administrator de bonis non, in the sum directed; 'whereupon, letters of administration were granted to the said Henry Y. Slaymaker, as administrator de bonis non of the said Dietrick Walck, deceased. The conditions of the bond, so far as they are material here, are as follows: — ■

      “ The condition of this obligation is such, that if the above bounden Henry Y. Slaymaker, administrator, de bonis non, of all and singular the goods, chattels, and credits of Dietriek Walck, late of the township, county, and state aforesaid, deceased, do make or cause to be made, a true and perfect inventory of all and singular the goods, chattels, and credits of the said deceased, which have or shall come to the hands, possession, or knowledge of him, the said Henry Y. Slaymaker, or into the hands and possession of any other person or persons for him, and the same so made, do exhibit or cause to be exhibited into the register’s office, in the county of York, at or before the 24th day of September next ensuing; and the same goods, chattels, and credits, and all other .the goods, chattels, and credits of the said deceased, at the time of his death, which at any time after shall come to the hands or possession of the said Henry Y. Slaymaker, or into the hands and possession of any other person or persons for him, do well and truly administer according to law, and further, do make or cause to be made a true and just account of his said administration, at or before the 24th day of August, in the year of our Lord 1836, and all the rest and residue of the said goods, chattels, and credits, which shall be found remaining upon the said administration account, and the same being first examined and allowed of by the Orphans’ Court of the county of York, shall deliver and pay unto such person or persons, respectively, as the said Orphans’ Court, by their decree or sentence, pursuant to the true intent and meaning of an act of Assembly relating to collateral inheritance, the law now in force in this commonwealth, shall limit and appoint. And if it shall hereafter appear, that any last will and testament was made by the said deceased, and the executor or executors therein named, do exhibit the same in the said register’s office, making request to have it allowed and approved accordingly; if the said Henry Y. Slaymaker, the administrator de bonis non, above bounden, being thereunto required, do render and deliver the said letters of administration, approbation of such testament being first had and made in the register’s office: then this obligation to be void and of no effect, or else to be and remain in full force and virtue.”
    On the 7th of November, 1843, the following decree, as appears from the case stated, was made by the Orphans’ Court: “The account of Henry Y. Slaymaker, administrator de bonis non of the estate of Dietriek Walck, late of Windsor township, deceased, was presented, duly settled, and passed before the register of York county, exhibiting a balance in his hands of $1,802.12, which account the court do hereby confirm nisi, and order that the same be filed and recorded.” An auditor was appointed to make distribution of the balance in the hands of Henry Y. Slaymaker, administrator de bonis non of Dietrick Walck, deceased, to and amongst the legatees of the said decedent.
    It appeared by the report of the auditor, which was confirmed by the court, that John Walck, the plaintiff, was entitled to the sum of $137.44J, as a legatee under the will of the decedent aforesaid; and to recover that sum this suit was brought upon the administration bond. The court (Irwin, P. J.) gave judgment on the ease stated, in favour of the plaintiff, for the sum in controversy. The defendant thereupon sued out this writ, and assigned the judgment of the court below, for error here.

      JEvans and Mayer, for plaintiff in error.
    No administration with the will was granted in this case. No notice is taken in the proceedings in the Orphans’ Court of the fact that there was one. The letters and the bond are in the ordinary form. No clerical error is suggested in the filling up. It is an ordinary administration. The question is, can a surety be liable on the bond to a legatee claiming under a will of the decedent ?
    There is no condition of the bond under which the legatee can recover. The condition to pay according to the decree of the Orphans’ Court, pursuant to the law relating to collateral inheritance, and the law now in force in the commonwealth, is specific. All the laws of the commonwealth are not meant. The decrees of the coiu’t would be intended to be conformable to law, and the law of collateral inheritance would be embraced under the general phrase. The law referred to is the intestate law. The English bond names the statute of distribution in terms (Toller, 96). Our statute of 1794, relating to intestates, uses the phrase: “pursuant to the true intent and meaning of this act.'” The codifiers tell us that they have borrowed the present form from the act of 1794: Report on Registers’ Act, p. 34. The old act of 1705 is in similar terms to the act of 1794: 1 Dali. Law, App. 43. Instead of a condition to pay according to the will of the deceased, we have a condition not to pay at all, but to surrender the letters in case there be one. A surety cannot be held beyond the terms of his contract.
    The Registers’ Act of 1832, section 24, prescribes the ordinary form of the bond, and requires it to be varied to suit the circumstances of the case, and the 27th section renders the letters void, and the register responsible when he does not do his duty in this respect. The plaintiff below is not without remedy. It is better to hold the register responsible under the law for his own negligence, than to strain the contract of the surety to screen the officer. The law recognises the difference between this bond and the one which the case required, and to disregard the distinction is to disregard the law. It cannot be held that it makes no difference what sort of bond is given in any case, and any bond is good for every purpose. There should have been a reference to the will, such as was made in the bond in Ziegler v. Sprenkle, 7 W. & S. 179; and a clause to surrender the letters if any later will were discovered. The very point was decided against the legatee in Fulcher v. The Commonwealth, 3 J. J. Marsh. It. 592.
    Campbell, contri.

    The form of the condition of the bond is given in the 24th section of the act of 1832, relating to registers and registers’ courts: McKinn. Dig. 762; but so far from saying it shall be in that and no other form, or declaring the bond to be void for a variance from, that form, it directs the form to be modified to suit circumstances.
    It is only when the statute prescribes the form of the bond, and declares it void for a departure, that a variance renders the bond void: United States v. Brown, Gilpin’s Rep. 179; Shunk v. Miller, 5 Barr, 253. •<
    The conditions are severable. If there are any which are unmeaning or not binding, they can be rejected as surplusage: Armstrong v. The United States, 1 Pet. C. C. Rep. 47; Shunk v. Miller, as above.
    The conditions “ well and truly to administer according to law,” and to “ deliver and pay unto such person or persons respectively as the Orphans’ Court, by their sentence and decree, shall limit and appoint,” are independent of the other conditions, and easily separated from them. It is for a breach of these conditions that this suit is brought.
    The proper construction of the 27th section of the act of 1832 is, that the letters granted by the register shall be void, where there is no bond. It does not contemplate the case where there is a bond variant from the statute; but if it did, it does not declare the bond, but the letters, to be void.
    If even the letters were void, and the administrator was only an executor de son tort, the bond would bind him and his sureties, as a voluntary bond: Ziegler v. Sprenkle, 7 W. & S. 178.
    Bonds of this character are taken by officers who are not lawyers, and for the security of the helpless; and it is a Settled principle that they are not to be criticised too nicely, to defeat the purposes for which they are given.
    “A judgment, and nothing more, will authorize an action against the surety on the bond:” per Rogers, J., Commonwealth v. Wenriek, 8 Watts, 161. The only object is to ascertain that there are assets. For this purpose a judgment is sufficient: Commonwealth v. Wenriek; Meyers v. Fretz, 4 Barr, 347; Commonwealth v. Forney, 3 W. & S. 353.
    Here the decree of the Orphans’ Court not only ascertains that there are assets, but the amount of each heir’s share. This decree has also all the properties of a judgment. A fieri facias and venditioni exponas can issue on it: McKinn. Big. 687; Pamph. Laws, 1846, 430. The administrator is personally fixed, and he is liable, de bonis propriis, and that is all that is necessary.

      May 18.
   Rogers, J.

This suit is brought to recover a legacy on an administration bond, given by an administrator de bonis non cum testamento annexo. The plaintiff, the legatee, gave in evidence an administration bond as in case of intestacy, for the conditions are in all respects the same as in an ordinary bond given by an administrator. This precise point is ruled in Fulcher v. The Commonwealth for the use of Beale, 3 J. J. Marshall, 592. In that case it iso decided, that if an administrator with the will annexed, has not entered into such bond as his character required, but executes a bond with such conditions as are required in ordinary administration bonds, he and his sureties are not liable on such bond for a legacy. The case is identical with the present; and it is difficult to understand how the decree could have been otherwise. But it is said the bond is not void, but may be enforced as a voluntary bond. And this may be true; but yet it does not vary the question, because still the objection remains, that no one condition of the bond embraces the case of a legacy, and the parties can only be liable for breach of its conditions. Indeed, the bond is executed on the supposition that there is no will; for it is part of the conditions of the bond, if any will is thereafter discovered and proved in the register’s office, the administrator being thereto required, shall deliver up the letters of administration. It is one thing for sureties to enter into an administration bond, cum testamento annexo, another and quite a different thing to bind themselves in a bond as in case of an intestacy.

Judgment reversed, and judgment for the defendant.


text:
    Brenner v. Herr.
    In an action of debt on a bond, upon tlie allegation and some proof by the defendant, that a less sum than its amount had been paid to and accepted by the obligee, in the absence of the bond, which had been mislaid, and was supposed to be lost, in full satisfaction of it: a positive instruction by the court to the jury, that whatever amount remained unpaid of the bond was recoverable by the plaintiff, is erroneous. It should have submitted to the jury, as a question of fact, whether a part was accepted in full satisfaction of the whole.
    In error to the District Court of Lancaster county.
    Debt on bond, by Christian Herr, administrator of Christian Herr, deceased, against Jacob Brenner, the plaintiff in error, to recover a balance alleged to be unpaid on said bond. On the trial, the plaintiff gave in evidence the bond in suit, which was given by Jacob Brenner, the defendant, to Christian Herr, sen., for the payment of $737, dated December 5th, 1845, and payable on the 1st day of April, 1846, with interest from its date. This bond, it appeared, had been mislaid; and it was supposed to be lost, until some time after the death of the obligee therein, the said Christian Herr, sen. Letters of administration on the estate of the said Christian Herr, son., were granted to the plaintiff, his son, on the 9th day of February, 1846.
    The defendant alleged, and supported his allegations with some proof, that a new bond was delivered by him to the plaintiff, and accepted by him, to supply the place of the bond supposed to be lost; that the parties met on the 4th of April, 1846, three days after the bond became due, and made a settlement, under which the plaintiff, upon his own proposition, agreed to accept and did accept the sum of $650, in satisfaction or payment of the new bond, which was then given up by the plaintiff to the defendant, accompanied with a promise by the plaintiff to deliver up to the defendant the old bond, if ever found. It was also in evidence, that the plaintiff admitted to two witnesses that he had settled with the defendant, but had been compelled to remit a part of the bond.
    His honour Judge Hats charged the jury, that “the amount of the bond due on the 1st of April, 1846, was $737. A part of this was unpaid on the 4th of April, 1846; and has not been paid since. Whatever this part was, a balance remained of the bond; and the question now is, whether the circumstances, insisted on by the defendant as having occurred on the 4th of April, between Christian Herr and himself, constitute an available defence in this action. If one man owes another, and is called on for the money before it is due, and if in consideration of his paying before it is due, the party to whom he is indebted chooses to take less than is owing, it will be a valid satisfaction for the whole. So, if the money owing is to be paid at a distant place, and it is agreed that a less sum than is owing be paid and received where the parties then are, in satisfaction of the debt, this agreement is good and the satisfaction is sufficient. 3 Hawk, 350; 2 Litt. 49; 3 Bulst. 301; 1 Com. D. 133. (B. 2.)
    “ But not so, an agreement to pay and accept, or even payment and acceptance of, a less sum than is due, in satisfaction of the debt. The agreement is pro tanto without consideration; and the less sum can be no satisfaction for the greater, due at the time.
    “In the present case, the bond was due four days before the money in question was paid; and there are no circumstances which should have reasonably induced Christian Herr to accept, or Jacob Brenner to offer, less than was due in satisfaction of the bond. The amount was not disputed, nor the debt; and a suit might have been brought upon the bond, as a lost bond, and the whole recovered, though the writing had never been found. Whatever amount of this bond remained unpaid, is therefore recoverable in this action, though Christian Herr did say on receiving the money paid by Jacob Brenner — it was all right — though he gave up the new bond, and though he said, that when he found the old bond, he would give up that also. Such an agreement and payment are no accord and satisfaction, and cannot establish a defence for Jacob Brenner, beyond the amount which he actually paid.”
    The defendant excepted to the charge. The jury found for the plaintiff; whereupon the defendant sued out this writ, and assigned the following errors here :—
    1st. The settlement between Mr. Brenner and Mr. Herr on the 4th of April, 1846, and the subsequent confessions of Mr. Herr to Lintner and Brenneman, are questions of fact which ought to have been submitted to the jury; and the court erred in deciding that “ these circumstances did not constitute an available defence.” .2d. The extinguishment and satisfaction of the old and new bond depend upon the intention of the parties, which ought to have been referred to the jury as a question of fact; and the court misled the jury in saying that “ whatever amount of this bond remained unpaid is therefore recoverable in this action, though Christian Herr did say, on receiving the money paid by Jacob Brenner, it was all right; though he gave up the new bond, and though he said, when he would find the old bond he would give that up also.”
    3d. The charge of the court, as a whole, is erroneous.

      Smith, for plaintiff in error.
    This was a question of fact, and should have been submitted by the court to the jury. The possession of the bond, the testimony of the witnesses, prove that the bond was settled.
    For the meaning of the word “settled,” he cited Rex v. Martin, 32 E. C. L. R. 626; More v. Kline, 1 Penn. R. 132.
    The new bond operated as an extinguishment or satisfaction of the old. It was coextensive with the original debt; and from the face of the instrument and other evidence, it was the design of the parties that it should be treated as an extinguishment: Wallace ■v. Fairman, 4 Watts, 380.
    An agreement to pay a less sum of money in discharge of a greater, owing or payable, if fully executed and accepted in satisfaction thereof, is an extinguishment of the original debt. Spruneberger v. Dentler, 4 W. 126; Weakly v. Bell & Sterling, 9 W. 273.
    An agreement or satisfaction of the debt depends upon the agreement and intention of the parties, which is rightly referred to the jury as a question of fact. Jones v. Johnson, 3 W. & S. 276; Hart v. Boiler, 15 S. & R. 162.

      Fllmaleer and Fordney, contó.
    An agreement, without any consideration to receive a less sum from the debtor, is no satisfaction, &c.: ‘Latapee v. Pecholier, 2 Wash. C. C. Rep. 180, 184; refer also to Wallace v. Fairman, 4 Watts, 378. An accord must appear to be advantageous to the party, or it can be no satisfaction: Keeler «. Neal, 2 Watts, 424. Mere receipt of payment for an item of an entire contract is no waiver of a demand for the residue: Tompkins v. Haas, 2 Barr, 74. Acceptance of a security for a lesser sum cannot be pleaded in satisfaction of a similar security for a greater: 1 Selw. 108.

      May 18.
   Burnside, J.

This was an action of debt on a bond conditioned to pay $737 on the 1st of April, 1846. We think the error complained of in the charge is maintained. The court on the evidence should have submitted the case to the determination of the jury, and ought not to have instructed them that whatever amount was unpaid on the bond, was recoverable in this action. Whether the balance clue was recoverable would depend on the truth of material facts in evidence.

The bond now in court was supposed to be lost after the death of Christian Herr the father. Brenner insists and gave some evidence that he gave a new bond to the plaintiff below to supply its place. It was in evidence that the parties met on the 4th of April, 1846, when the new bond was delivered up and $650 was accepted as payment, when Herr promised that if the old bond was ever found he would deliver it up as cancelled. The defendant in error denies this. The material question was a fact for the jury — the truth of Brenner’s allegation — for if .the new bond was delivered and accepted by Herr, and re-delivered up to Brenner on the payment of the $650, as young Brenner swears, the plaintiff ought not to recover, 16 Johns. 88; 5 Johns. 392. There is some discrepancy about dates, in the evidence, but that is for the jury. “A bond is not perfected until delivered:” 2 Barr, 448.- Whether there was a full accord and satisfaction will depend on the jury finding the truth of Brenner’s allegation. But if no new bond was delivered, then the defence fails, and the court’s instructions were right.

The case is one for the jury on the principles indicated.

Judgment reversed, and a venire de novo awarded.


author: Per Curiam.

text:
    Lewistown Road.
    Under tlie act of the 13th of June, 1836, the application for the assessment of damages incurred, in consequence of laying out and opening a street or road through several lots, must be made within one year from the time the street or road through the lot of each owner or applicant, was fully opened for public use, and made passable in all its width, for carts, carriages, &c., and not from the time such street or road was effectually opened through all the lots embraced within the points designated in the order of the Court of Quarter Sessions.
    Certiorari to the Quarter Sessions of the county of Mifflin, to remove the proceedings in the case of the assessment of “damages done to lot No. 38 in the borough of Lewistown, by laying out and opening a road through the same: the lot being the property of Levi Reynolds, jun.

      May 18. The case was as follows: — In the year 1840, to wit, at April Term, 1840, the petition of sundry inhabitants of Lewis-town was presented to the court in the usual form, praying that viewers might be appointed to view and lay out a road or street from Main street in said borough of Lewistown, in a south-eastern direction to an alley near the warehouse of John Sterrett.
    On the 9th day of September, in the year 1840, the viewers reported in the usual form, that they had viewed and laid out the road or street prayed for, across and through various lots of ground; and.amongst others, through lot No. 38, in the general plan of Lewistown, with a draft or diagram of the road or street: lot No. 38 being the property of Levi Reynolds, jun.
    On the same 9th of September, 1840, the court confirmed the report of the viewers, and .ordered the road or street to be opened and kept open of the width, of thirty-three feet.

    This proceeding was taken to the Supreme Court, and there affirmed in the year 1841.
    In the year 1842, the street commissioners of Lewistown pulled down the paling which enclosed lot No. 38 from Main street, of the width of the new road, and threw the lot open to the street, so that all persons who chose could go over it at pleasure.
    The proposed new street ran through three separate lots, to wit: No. 38, adjoining Main street; No. 37, a middle lot; and No. 36, adjoining the alley at the south end of the new street; each of the three lots being the property of different persons.
    On lot No. 36, at the south-eastern end of the street, was a perpendicular bank, three or four feet high, occupying the whole width of the street: except a few feet at one corner. Over this bank neither horses nor carriages could pass. On the same lot, No. 36, was a small dwelling-house, in which a person resided, occupying more than half of the width of the street.
    This dwelling-house, as well as the bank; at the south end of the street, remained undisturbed until the 1st day of September, 1843, when, by order of the street commissioners, the house was pulled down and removed from the street; and the bank at the southeastern end of the street was cut down and levelled, so that horses and carriages could freely pass from one end of the street to the other, without obstruction or impediment.
    At November Term, 1842, Levi Reynolds, jun., presented his petition to the Court of Quarter Sessions, praying the court to appoint viewers to assess damages done to his lot, No. 38, by laying out the said street or road through it.
    This petition was not acted on, because, at that time, the street was not effectually opened between the points designated in the order of the court.

      At April Term, 1844, the petition of Levi Reynolds for viewers in this ease was presented: the house, bank, and other obstructions on lot No. 86, near the southern end of the street, having been removed September 1,1843, and the street effectually opened. x
    The following case was agreed on by the counsel below. It was agreed by the counsel in the court below:—
    1. That the county commissioners had notice, and attended the view and assessment of damages.
    2. That the fence at the north end of the new road or street was pulled down, and the lot No. 38 thrown open more than a year before this petition was presented; but not more than a year before the presentation of the petition at November Term, 1842.
    The sole question for the consideration of this court was, whether this petition was presented in time; that is, within one year after the road or street was effectually opened, according to the sixth, seventh, and ninth sections of the act of 13th June, 1836.
    The court below held that each lot-holder through whose lot the new street passed, must present his petition for damages within one year from the time his lot was' thrown open; that the year mentioned in the act commenced at the time each lot was thrown open, and not from the time when the whole street was finished and effectually opened for public use.
    Fisher, for exceptant.

      F. O. Sale, contó.
   Per Curiam.

This case falls within the principle of the Commonwealth v. McAllister, 2 Watts, 190, and is ruled by it.

Judgment affirmed.