author: Rogers, J.

text:
    Beltzhoover v. Costen.
    Devise over, if any of tlie devisees “ die under age or without issue,” construed to read, “ die under age and without issue,” although some of the devisees were of full age at the date of the will.
    Testator devised « the residue of my real and personal property, (except such parts as are hereinafter excepted,) to be equally divided among my wife, six sons and two dahghters, and the profits to be equally for the support of said legatees until each arrives at twenty-one, when they shall receive their part. And in case any of my children before mentioned die without lawful issue, or before they arrive at the age of twenty-one, in that case their shares, if it bo boys, shall be equally divided between my two daughters — if a daughter, equally among the surviving children or their heirs.” He further gave the possession of tract A. to his widow until marriage, and then, or at her death, to be equally divided between his surviving children or their lawful heirs, and gave other directions as to certain real estate. The wife died before testator, and proceedings in partition were had by the children, under which tract A. was awarded to G., the eldest son of testator, he paying owelty. G. and one other son were of age at the date of the will, and died without issue.

      Held, G. took an estate in fee-simple absolute under the will. That tract A. passed under the first clause devising the general residue, and was not within the exception or the second clause, which related to the possession and profits of tract A. during*the widow’s life. And the limitation over was on the contingencies of a dying underage and without issue.
    In error from the District Court of Allegheny.

      Sept. 20. Trespass on a case stated. In 1803, George Wallace the elder made his will, devising as follows :
    “ First, all the residue of my real and personal property (except such parts as hereafter excepted) shall he equally divided between my wife, Jane, and my children, viz.: George, Thomas, William, Henry, Irvin, and Charles Wallace, and my two daughters Arabella and Eliza Wallace, share alike; and the profits of said real and personal estate shall be for the use and support of the before-mentioned legatees, until each arrives at the age of twenty-one years, at which time they shall receive their part. And in case any of my children, before mentioned, die without lawful issue, or before they arrive at the age of twenty-one years; in that case their part or shares, if it be boys, shall be equally divided between my two daughters, and in case it be a daughter, in that case, equally among the surviving children or their heirs.' Secondly, it’s my will that my wife shall remain in full possession of the plantation called Braddock’s-field, with the appurtenances thereunto belonging; also, the stock of every kind, viz. horses, &c.,p &.c., that I may have at the time of my death; also, all kind of farming utensils, &c., and every kind of household furniture, together with all issues and profits of said plantation for her use during her lifetime, in case she never marries; then it to be equally divided between my surviving children or their lawful heirs, after the death or marriage of my wife, Jane. Thirdly, it’s my will that my wife, Jane, shall keep any negroes that I may have at my death, during her lifetime or marriage, and after either, to be divided between my surviving legatees or their lawful issue. 1 Fourthly, be it understood that I purchased an out-lot, in the Alleghany Bottom, from Thomas Hutchins, Esq., and the deed is in the name of my son George: and in case George should claim said lot, in his own right, in that case, my executors hereinafter mentioned shall have it valued, and if he chooses to receive it at such valuation, he may; but in case such valuation should be more than his part, he must pay to the other surviving legatees the overplus, to make their share alike. Fifthly, it is my will that my son Thomas shall have four lots on the Alleghany River ; three of them purchased from James Blain, and one of them got in exchange from General Butler; to be valued and disposed of in the same manner as the out-lots to my son George.”
    By a codicil he directed advances to his children to be taken into the account of their shares, and by another codicil, in 1803, he devised certain stocks to his wife during life or widowhood, and after her death or marriage tobe divided among “ my within-named heirs, or their legal heirs.” Testator died in 1812, leaving his son George, who was of age in 1802, and died in 1826, without issue. The defendants (held possession under his will. Thomas, the second son of testator, was of age in 1803, and died in 1815, leaving issue, sons and daughters, who are yet living, or have left issue. The other children were minors at the date of the will. Of these, Arabella died in 1812, leaving children, the present plaintiffs. Eliza, the other daughter, died in 1820, leaving issue.
    In 1813, proceedings in partition in the Common Pleas were had between the children, and the land known as Braddock’s-field, (the locus in quo,) was allotted to George Wallace the younger, who paid by way of owelty to the mother of the plaintiffs, $3574, and to another sister $2854. From that time he held possession until his death, when his widow entered under his will, with her present husband, who is the defendant here.
    The court below gave judgment for defendant, being of opinion a fee-simple vested in George, and construing or as and, there had been no happening of the contingencies, and also that the possession under the partition and circumstances therewith connected, barred the action.

      Dunlop and Forward, for plaintiff in error 1
    After arguing some points noticed below, as to the technical right to the action, &c., by reason of want of parties, contended that two contingencies were expressly provided for, either a dying without issue, or a dying under twenty-one — on either of which events happening the devise over took effect. The other construction would be absurd, because George being of full age at the date of the will, would be excluded from the operation of a clause in which he was expressly named. On this point they cited Hauer’s Lessee v. Shitz, 3 Yeates, 205, 219, 2 Binn. 532; Hawkesworth’s Lessee v. Morgan, 5 Bos. & Pul. 38; Scott v. Price, 2 Serg. & Rawle, 59; Welsh v. Elliott, 13 Serg. & Rawle, 205; Hilliard v. Gennings, 12 Modern Rep. 276; Woodward v. Glassbrook, 2 Vernon, 388; Girdlestone v. Doe, 2 Sim. 225. They further argued that the devise, as respects the share of George, was a limitation over after a failure of issue, to which the courts always inclined, and cited Hauer’s Lessee v. Shitz, 3 Yeates, 205, 222; Moffat v. Strong, 10 Johns. 15; Holmes v. Holmes, 5 Binn. 252; Doe v. Burnsall, 6 Durnf. & East, 34; Smith v. Bell, 6 Peters, 68.

      McOandless, contra,
    (for the present holder of defendant’s title.) "The words relied on apply only to portions excepted from the residue of the estate, viz. the rents, &c. If an executory devise it is too remote, since it is to be after failure of issue, ■which, would create an estate-tail, and as a limitation it cannot take effect, since it is also to go over on a dying under age. The estate, therefore, if not a fee-simple, reverted to the heirs of the testator, and they are estopped by the partition. The argument that because George was twenty-one at the date of the will, the contingencies are disjunctive, cannot hold, for ho is also named in the clause giving the rents to the support of the minor children. The construction contended for would make the contingency simply a dying without issue, while this gives effect to both; it is in the event of a dying under twenty-one, or under that age without issue, that the devise over is to take effect. ✓

      Oct. 2.
   Rogers, J.

(after stating the will and the facts of the case.) — The plaintiffs in error, who were plaintiffs below, insist that Braddock’s-field, the land in controversy, is included in the first clause of the devise; that an estate in fee-simple is vested in George Wallace, defeasible by his dying without issue; that this event having taken place, the limitation over took effect, and they, as heirs ' of Arabella Wallace, to whom the estate was limited over by executory devise, are entitled to recover. On the other hand, the defendant contends, that the property in dispute is not embraced in the first clause, but falls within the second, and that under that clause, plaintiffs have no pretence of title; and secondly, admitting the plaintiffs’ first proposition, he contends the contingency on which the estate vests has happened, and an absolute estate in fee was vested in George Wallace.

Under which clause the subject of the devise'falls, is the first question. And after some hesitation, we have adopted the reading of the plaintiffs’ counsel. The primary object of the testator seems to have been, to provide for the maintenance and education of his children, and in the event of any alteration in the condition of his family, by death, before they attained the age of discretion, that the estate should descend as is provided in the first clause. There is no motive which occurs to me, to induce him to except from this provision his family residence, constituting, as it did, the most valuable portion of his estate. The first item embraces all his property, real and personal, and would certainly embrace Braddock’s-field, wore it not for the words introduced in brackets (except such parts as are hereafter excepted) and the phraseology of the second clause. The argument of the defendant’s counsel would be irresistible, were it not that the expressions arc satisfied by the devises in the fourth and fifth clauses. The property there ■ named stands in a peculiar situation, and we are at no loss to understand the reason they are excepted from the disposition made of the rest of his estate. After providing for payment of his debts, the testator devises all the residue of his property, real and personal, (except such parts as are hereafter excepted,) to be equally divided, &c., as therein prescribed. He then proceeds, it is my will that my wife shall remain in full possession of the plantation called Braddoek’s field, with the appurtenances thereunto belonging, also the stock of every kind, viz. horses, &c., also all kinds of farming utensils and every kind of furniture, together with all issues and profits of said plantation, for her use during her life in case she never marries, then it to be equally divided between my surviving children or their lawful heirs after the death or marriage of my wife Jane. The will is most inartificially drawn, and I am much inclined to the opinion, that to carry out his intention we are at liberty to add the word “aforesaid” after the words “my surviving children or their lawful heirs.” This alteration or addition would remove all doubt. Nor is it without precedent, as is shown in the cases cited, when necessary to carry out the manifest intention of the testator. But to what does the word it refer ? Does it refer to an estate on the Braddock’s-field property, or to the possession of it merely, and to that part of the personal property and the rents and issues not expended by the widow. We think, on a view of the whole will, it is intended to apply to the latter. It is very true, by the strict rules of law, an estate during widowhood •is vested in Jane, but this in all probability was not the notion of .the testator, ignorant, as he certainly was, of the construction of legal terms. He supposed, it is likely, that it was but a bare permission to take possession of the property, reside on it, receive the rents, issues and profits for the support of himself and children, during their minority. That when this primary object was rendered impossible by death ox endangered by her marriage, it was to go over in the manner directed in the second clause. To this conclusion I have come, not without great hesitation. It amounts, I confess, to little better than conjecture. But to discover the intention of a testator, on a given state of facts, occurring after his decease, which never entered his mind at the time the will was executed, is one of the many difficulties which beset courts in the construction of such instruments. . I am however free to confess, that were it necessary to adopt a different reading, I should be inclined to do .,so, to prevent the injustice resulting from the plain-' tiff’s recovery, after partition of the property, the payment of a large sum1 of money as owelty of partition, under a supposition common to all the heirs, that George took an indefeasible estate in fee, an acquiescence in the partition for upwards of twenty years— improvements on the property, on the faith of an undisputed title, and a subsequent disposition of it by will.

The property in dispute being the subject of the same limitations with the other real estate, with the exceptions indicated, we may now turn our attention to the first item in the devise. On its construction the case depends. The plaintiffs insist that a defeasible fee is vested in the first taker, to be defeated by the single contingency of his dying without issue, and as that event has taken place, they, as heirs of Arabella Wallace, to whom the estate is limited over, by way of executory devise, are entitled to recover. In opposition to this view, the defendant contends, the estate of George Wallace, under whom they claim, is a fee, whether fee-simple or fee-tail matters not, the contingency having happened on which an absolute estate was to vest. The construction of the will depends on that part of the clause which runs thus: “ And in case any of my children before mentioned die' without lawful issue, or before they arrive at the age of twenty-one years, in that case, their part, if it be boys, shall be equally divided between my two daughters.” The intention of the testator, to which all other rules are subordinate, is the governing rule in the construction of wills, but to discover the intention certain rules have been adopted, by which the court is as much bound as the general rule itself. Thus, in wills, it is now a settled rule of construction, that when there is a devise of an inheritance to any person, and a devise over, depending on his age or issue, whether these events are connected by a conjunctive or disjunctive particle, the estate of the first taker is absolute, if either of the events take place. The controlling reason given in all the cases is, that otherwise, if the first taker should die under age, leaving issue, such issue would be disinherited. To this point there is a uniform current of decisions in England and this country, which I am saved from the labour of enumerating, as they are all cited and reviewed in Hauer v. Shitz, 2 Binn. 545; Holmes v. Holmes, 5 Binn. 259; Scott v. Price, 2 Serg. & Rawle, 63, and Welsh v. Elliott, 13 Serg. & Rawle, 205. Chief Justice Tilghman, in Hauer v. Shitz, in this simple, but lucid language, has given us the reasons of the rule: “ In order to effectuate the intention of the testator, the word, or, is stripped of its disjunctive signification and converted into a conjunction copulative. Why has this been done? Because if it was construed disjunctively, the devisee, who was the first object of the testator’s bounty, might die under twenty-one, leaving children, and those children would be deprived of the estate, which would pass over to other persons. It is very natural that a man should give his son an estate in fee, and yet provide that it should go to a third person in case his son should die without issue, and before the age at which the law permitted him to dispose of it, either by contract or by devise; but that he should give him a fee-simple, and then deprive his children of it, because he happened to die before twenty-one, is altogether unnatural and improbable.” Two reasons, it will be observed, are given for the rule, one to prevent the disinheritance of the children, and another, that we cannot presume the testator designed to prevent the first taker, who was the object of his bounty, after he arrived at years of discretion, from the disposition of his property. Both reasons apply to this case, for if we adopt the plaintiff’s reading, the minor children of six of the eight devisees would run the risk of being disinherited, and the remaining two would be deprived of the power to convey their shares of the estate by contract or devise. This would be both against sound policy, which never fetters the character of estates without necessity, and against the intention of the testator. We are restrained from giving such words their grammatical sense, because it would defeat his intention. One of the best modes of discovering the sense, is to put yourself in the place of the testator, and inquire what would be his answer, if certain questions were put to him. Thus — do you intend, by the expression used, to disinherit your grand-children, if your devisees, under age, marry, have children, and die before they attain the age of twenty-one; or do you design to lay any restraint upon them as to the disposition of their property, if they arrive at the age of discretion ? We cannot doubt that the answer, in both cases, would be in the negative. Can it be believed that he would answer that it was his design, by the use of such words, to hinder them from marrying till the age of twenty-one, a reason, erroneously, I think, attributed to Lord Holt, in 12 Mod. 277, which, with all deference, is absurd, especially as regards persons on this side of the Atlantic. That all the devisees, George and Thomas included, are put in the same class and the same category, appears from the will itself. Thus the profits of the real and personal estate devised to all the devisees nominated, are directed to be for their use and support until each arrives at the age of twenty-one years, at which time, so runs the will, each shall receive their shares. The argument therefore, that a different rule may be applied to those under, and those above age, is more plausible than sound. Strange as it may appear, yet we have reason to believe, that the testator did not advert to the fact that two of the devisees, at the time the will was executed, were above the age of twenty-one years. The wording of the will, on any other hypothesis, can hardly be explained, for if he had any intention of making a difference between them, it would have been easy to do so by > slight change in the phraseology., His evident design, as it appears clearly to lis, was to put them all on the same footing, and that when they arrive at the proper age, each of his children, without exception, should have-the absolute and uncontrollable disposition of his share of the-estate. What matters it whether some of the devisees are above age at the time the will is executed, or arrive at that age before the-death of the testator, and yet, in the latter case, no person would pretend it would alter the construction of the devise. But it is on this construction alone the plaintiffs rely. They contend, that although the expressions, if he die without issue, or before they-arrive at the age of twenty-one years, are to be generally so construed as that or may read and, yet if there are any other parts of the will which indicate a contrary intention, the construction may be different. And this is true, but so strong is the general rule, that a contrary design must be manifest to induce the court to depart from the usual construction of these words. Welsh v. Elliott, 13 Serg. & Rawle, 207, and Scott v. Price, 2 Serg. & Rawle, 62, afford striking illustrations of the great desire of the court to avoid taking a case out of the general rule. On the face of the will itself, there is nothing which indicates a contrary intention. It will not bear an argument that we must read or, and, but for the fact, dehors the will, that two of the devisees, George being one, were above the age of twenty-one years when it was executed. But we cannot infer from this such a clear manifest intention as, will induce the court to vary the legal reading of. that part of the will.

Several points which were discussed in the argument are not, noticed, because this view of the law disposes of the whole case.

Judgment affirmed.

       In this case, Gibson, Ch. J. did not sit, being related to the defendant.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    Leech v. Agnew.
    The guardian is no party to the covenants' in an indenture of apprenticeship, though he has sealed the deed.
    An agreement by a minor for the payment of his wages to his mother — -without any consideration moving from her — is void.
    An agreement in an indenture of apprenticeship that the wages agreed to be paid to the apprentice should be paid to his mother, not party to the instrument, nor making any agreement in consideration thereof, cannot be enforced , in her favour by an action brought in the name of the apprentice and guardian who sealed the indenture.
    In error from the District Court of Alleghany.
    Leech and J. Agnew brought covenant on indentures of apprenticeship to the use of Catherine Agnew. — The case was this. In Nov., 1833, Leech as guardian, J. Agnew as apprentice, and defendant as master, sealed an indenture of apprenticeship, whereby - defendant covenanted to teach Agnew the trade of a glass-blower, and to pay Agnew $10 a month until a certain day; and for the residue of the term the half of a journeyman’s wages. He further covenanted to pay the boarding of the apprentice “ during the time the first fire is out,” providing his mother would send him to school during that time.
    By an under-written agreement, sealed by the same parties, it was covenanted that the wages of said J. Agnew should be paid to his mother during the term of his apprenticeship.
    After the apprentice came of age, the master settled with him for all that could be claimed by the apprentice under the indenture.
    The court directed a verdict for the amount remaining due to Catherine, the mother, which had not been paid to her or her son -with her consent. Subsequently, judgment non obstante was entered for defendant.

      McOandless, for plaintiff in error.

      Woods and Williams, contra.

      Sept. 29.
   Gibson, C. J.

The son of the equitable plaintiff below had been bound apprentice, with the assent of his guardian, signified by sealing the indenture, to the defendant, in order to be taught the art and mystery of a glass-blower; the master covenanting to pay him $10. the month for the first year, and half the wages of a journeyman for the rest of the term. He covenanted, also, to pay the plaintiff, his mother, for boarding him while the first fire should he out — that is, the first intermission of the business, to prepare the furnace for the resumption of it — provided she would send him to school during the interval. There was no other covenant for maintenance; but, appended to the indenture was something like a declaration of trust, sealed by the master, the apprentice, and the guardian, which imported that the wages coming to the apprentice were to be paid to his mother; and the question is, whether it vested a right in her which can be enforced by action.

In recompense of the duty of maintenance, a father is entitled to his child’s earnings, and may dispose of them: a mother, being held to no such duty, is not entitled to its correlative. Neither has a guardian such a right. He may assent to his ward’s apprenticeship, but may not hire him out for the guardian’s benefit. Indeed it was gravely doubted, in Respublica v. Keppele,2 Dall. 197, whether a father could sell the services of his child; and it was directly decided that he could not bind him merely as a servant. Though the doubt rests on the dictum of a single judge, it is barely just to say that no lawyer stood higher in the profession, among the men of his day, than Mr. Justice Bradford. Nor, as was held in Veldé v. Severing, 2 Rawle, 269, is a guardian who has signed and sealed, party to his ward’s indenture, or bound by the covenants in it. His joinder, in this instance, is to be laid out of the ciase, as he had no interest to transfer or control; and what operation had the apprentice’s proper act to transfer the beneficial ownership of his earnings ? When an infant’s contract is in its nature beneficial to him, it binds him in infancy and at age: when prejudicial, it is absolutely void from the beginning. This is a rudimental principle : and what was the legal effect of this contract on the apprentice’s interest ? Neither his master nor his mother was bound to maintain him: the master, because he had not covenanted to do so; and the mother, because the law had not cast the burden of it on her. He had then, for all exigencies, his $ 10 a month during the first year, and his half wages’ the rest of the term — a provision barely sufficient for necessaries. And he agreed to give it away for no appreciable consideration! The impulses of a mother would restrain the donee from turning him out of doors; but in the interpretation of contracts, we have to deal only with legal obligations. Had she added to the gift an engagement to maintain him, as an equivalent, the contract might have been deemed a beneficial one; but as she did not, it was void.

Judgment affirmed.


author: Burnside, J.

text:
    Milliken v. Barr.
    Where evidence is intended to be given of the contents of a paper, and it is in the hands of the opposite party, notice to produce is necessary, even though the note is in court at the trial.
    In error from the District Court of Allegheny.

      Sept. 28. Assumpsit by John Barr on two notes drawn by Mil-liken, one dated November, 1843, for $95 50, payable April 1, 1844, the other for $9 50, of the same date, at one month. The defendant gave evidence disproving the handwriting, and showed an account between himself and Barr, resulting in a balance of $92 94, for which a due-bill was given, May 19, 1842. This was marked N, and had endorsements of payments, amounting in all to upwards of $80. On the 13th November, 1843, he gave a due-bill “ on settlement, for $9 18, on which $2 18 was endorsed as paid. He then proved, that on the 13th November, 1843, plaintiff called and demanded payment of the due-bill held by him. A settlement was made, and the balance ascertained to be eight dollars, odd cents. Some money was paid, and another account settled, on which a balance was due of nine dollars, odd cents, for which a due-bill was given to plaintiff, and a receipt to defendant. The plaintiff then proved, that on the 12th or 13th November, 1843, he held another note of defendant’s than that marked N, but of the same date, on which some endorsements were made of payments, of the same character as those upon the note marked N. This was objected to, and the admission of the evidence was the error assigned. These are all the facts bearing upon the question which could be collected from the paper book.
    Hampton, for plaintiff in error.

      McQandless, contra.

      Sept. 28.
   Burnside, J.

This was an action of assumpsit on two promissory notes. The plaintiff in error, who was defendant in the District Court, alleged they were forged and counterfeit. On this ground much evidence was given on both sides.

The plaintiff below, as rebutting the defendant’s evidence, offered to prove, by witnesses, that they had seen a certain note of the defendant, and in his handwriting, in possession of the plaintiff, with endorsements and credits on the back, and the amount and character of the credits so endorsed, and this for the purpose of showing that the note sued by the plaintiff was different from that marked N, dated the 19th May, 1842. To this evidence the defendant objected, the objection was overruled by the court, and this forms the material question in the case, and is the error assigned.

The law and the practice on this subject is plain and well settled. Where the instrument or writing is in the hands or power of the adverse party, the practice is to give him or his attorney a regular notice to produce it; not that on proof of such notice he is compellable to furnish evidence against himself, but to lay a foundation for the introduction of secondary evidence of the contents of the document or writing; 1 Greenl. Ev. sect. 560. This rule is of immense importance to prevent surprise; indeed it has been held that proof that the adverse party, or his attorney, has the instrument in court, does not make notice to produce it unnecessary, for the object of the notice is not only to produce “the paper, but to give the party an opportunity to provide 'the proper testimony to support or impeach it; 2 Tidd’s Prac. 803; 1 Stark. Rep. 225; Note 2 to 1 Greenl. Ev. sect. 560.

The counsel for the defendant in error complains that his opponent did not state his objection to the evidence. The counsel had a right to require the objection to be stated, and the party would have been held to that ground of objection. The correct practice is to state for what purpose the evidence is offered; where the opposite counsel has omitted to, make the inquiry, the party offering the evidence has the advantage of showing it was pertinent evidence for any purpose. So where there is an objection to evidence, it is a duty the court owe to themselves to have the objection stated; Gordon v. Moore, 5 Binn. 138.

Judgment reversed, and a venire de novo awarded.


author: Coulter, J.

text:
    Chambers v. Lapsley.
    Yerdict and judgment in ejectment against tenant in possession, is evidence in an action for mesne profits against his landlord, who in fact contested the case.
    Tenant in common proving a judgment in ejectment in 1839, for part of the land, and a hab. fac.poss. executed in 1842, and a judgment for another part in 1846, and possession delivered the same term • a judgment in an action for mesne profits brought in January, 1847, will not be disturbed on account of delay in talcing possession.
    Defendants in trespass for mesne profits pleaded jointly, but a separate verdict was found. Judgment may be entered against one, and a nolpros. as to the other*
    In error from the District Court of Allegheny.

      Oct. 1. Trespass for mesne profits. The ■ plaintiff declared against Chambers and Simpson jointly, who pleaded not guilty. It appeared that Chambers and Lapsley were tenants in common. Plaintiff showed a judgment in ejectment against Simpson for one-fourth of three hundred acres, in December, 1839, and a habere executed in April, 18-40; another judgment against the same defendant in September, 1846, for eighty acres, and possession delivered the same term. He then showed that Chambers sued out a writ of error, and was the landlord of Simpson.
    It appeared that the jury found for plaintiff, and assessed several damages. Plaintiff entered judgment against Chambers alone, and a nolle prosequi as to Simpson.
    The admission of the records of the ejectments, in evidence; allowing a recovery by one tenant in common, after the delay in taking possession thereunder; and entering a several judgment on a joint narr. and plea, were the errors assigned.

      Robinson, for plaintiff in error.

      MeOandless, contrá.

      Oct. 1.

   Coulter, J.

A verdict and judgment are competent evidence, not only between the same parties, but also between privies to the action ; Calhoun v. Dunning, 4 Dall. 120; Davis v. Wood, 1 Wheat. 8. The record, therefore, of the ejectments, which were received in evidence by the court below, and excepted to by defendants, were properly received, because it is quite apparent from the evidence, that Chambers was the real party in these cases, "and in fact contested them, the party on the record being his tenant: this error is not sustained.

By a recovery in ejectment, the title to the plaintiff is established, and he is justly entitled to the mesne profits made by the defendant, from or out of his land. And this rule is as just between tenants in common as between strangers. But the right of one tenant in common to recover mesne profits from another, by whom he was ousted, and against whom he recovered in ejectment, may be affected on technical grounds merely. Thus, if the plaintiff permits the defendant to remain an unreasonable time in possession, without taking out a habere facias possessionem, ho will' not be permitted to convert the defendant into a trespasser against his will; Hare v. Fury, 3 Yeates, 13. But this ground is merely technical. The plaintiff is clearly entitled to recover his moiety of the profits in some form of action. And we see nothing in this case of so marked a character as to turn the plaintiff round. What constitutes such unreasonable delay as to prevent recovery in this form of action, is not precisely defined, and must be settled for the occasion. But from any thing that appears on this record, the damages may have been assessed for the tract of eighty acres last recovered, and in relation to that there was no unreasonable delay; and the damages were probably, and could properly be assessed for the time previous to the judgment. In any aspect which the case presents from the record and the evidence, the court decline to disturb the verdict for this second exception.

The third error assigned is, that there was a joint declaration for a joint trespass and a several judgment.

The action and narr. is joint, and although it is stated on the record that Chambers plead not guilty, yet the record shows that Simpson adopted that plea as his, axid the tidal proceeded as if there had been a joint plea of • not guilty. The jury assessed several damages, and the first certificate returned of the docket entries showed the judgment was entered generally for the plaintiff. This view of the record would have made the case rub at this point. But a coi’rected certificate was furnished the court, which •I exhibited to the attorney for the plaintiff in error, who at once admitted its correctness, and which is now, with this opinion, attached to the record. By the additional certificate it appears, that the “ plaintiff elected to take judgment against William Chambers, and nolle prosequi entered as to Simpson,” and judgment was entered accordingly. This- appears to be fully sustained by authority. Thus in Rodney v. Strode et al., Carth. 19, here in trespass against three defendants, the jury found them all guilty, but severed the damages, and the plaintiff entered a nolle prosequi as to two of the defendants, and took judgment against.the third according to his assessment. This judgment being given in King’s Bench, was affixmed in error in the Exchequer Chamber, and finally in the House of Lords. The same principle is affirmed in Walsh v. Bishop, Cro. Car. 239. In trespass against several who jointly plead not guilty, oixe may be acquitted, and a verdict against the other, 2 Johns. 365;, and this is bottomed on the same principle — that is, that although there can only be one satisfaction, there can be several verdicts, but out of them only one satisfaction. The same principle is recognised in Tidd’s Practice, 895.

Judgment affirmed.


text:
    Derrickson v. Cady.
    The statute of limitations begins to run on a claim against an attorney for negligence in releasing tract A., and omitting to revive a judgment to preserve its lien against the same, from the time when the client knew that the attorney had released tract • A, from the lien of the judgment.
    And where the client, knowing of such release by the attorney, executed a paper stating the judgment, and “in consideration of (the attorney) releasing (the client) from his charges as counsel heretofore, I do hereby release him; and he not to act as counsel for me any further,” the claim for negligence is thereby released.
    It having been shown that time had been given by the plaintiff to the debtor, and one of his letters on that subject, prior to the release, having been read, subsequent letters on the same subject are evidence as part of a series of letters.
    The employment of an attorney, after knowledge of his negligent conduct, is material, and should be submitted to the jury on the question of damages.
    In error from the Common Pleas of Crawford.

      Sept. 30. Case for negligence. The first count was for not reviving a judgment recovered by defendant, as attorney for plaintiffs, against Sexton and Wood, so as to continue the lien against the ter re-tenants of two lots in Meadville, the property of Sexton and Wood at the time of the recovery of the judgment. The second count was for releasing the two lots from the lien of the judgment,, aqd the third for negligence generally, in and about the said action. Pleas, non assumpsit, statute of limitations, and accord and satisfaction.
    The judgment in question had been recovered in 1835, for $1335. On the 31st of January, 1838, defendant, as attorney, released the lien on two lots in Meadville, and extended the time of payment. Sexton and Wood.agreeing, in consideration thereof, to waive condemnation on executions. Proceedings were to be stayed until June; if $600 were then paid, a further stay until Oct. 20; -if $400 were then paid, a further stay for the balance to June 1, 1838, was to be had. Under this agreement, the judgment was revived. It-was proved that Sexton was bail for Wood, and the property released had been sold by him, but the agreement could not be complied with in consequence of this lion. To enable him to complete the purchase, the release was executed, Sexton agreeing to pay $100 out of the purchase-money, which was to be $2000, towards the judgment against himself and Wood.
    The correspondence was read by each of the parties, the plaintiff residing in Massachusetts or New York. From these letters, the following extracts are taken: January 7, 1837 — Derrickson to Cady, objecting to a plan proposed by Cady, as it would release part of the property. July 6, 1837 — Cady to Derrickson, directing him in no case to release any security until final payment; but if certain payments were made, he might release Sexton individually, whatever he thought reasonable. August 11, 1837 — Derrick-son to Cady, referring to a letter received. From its tenor, “ I infer that the whole has been left for me to regulate, which I wish •to have safely done on your account. I will inform Sexton of the sum you require for the release of the Meadville house.” The letter also mentioned the inability of Sexton to comply with his bargain, in consequence of the lien. January 3,1838 — Derrickson to Cady, stating Sexton’s anxiety to obtain a release, in order to get his money; and suggesting, if the residue of the property was sufficient to secure the judgment, and they would give condemnation, and insure $500 on the 1st of June, and the balance in the spring and fall, it would be well to go into the measure; requesting an answer and authority to act as he should deem best for Cady’s interests. On the 12th, Cady replied, saying, he saw no reason why he should release without “ some paythat he considered the Meadville property the best security; that all the land was now bound, and holding on to that in Meadville might enforce an earlier payment or settlement much desired. “ Above are my feelings at present, but I leave the whole matter with you, trusting in your honour and judgment that my interests are not jeoparded.” It will be observed, the release followed this letter. On the 1st of February, the day after the release, Derrickson wrote Cady, stating the whole of the arrangement above mentioned, except the partial release of the lien. On the 7th, Cady replied, requiring punctuality in Wood. In June and December, the letters showed $70 were received from Sexton, and paid over, and in August, $300 from Wood. On the 23d of April, 1839,- Cady wrote Derrickson, “ I have ever been sorry that you have relinquished the lien on Sexton’s property in the village when he first learned it did not appear. This action was to August 9, 1845, which was more than six years after this letter. The letters to Derrickson, as attorney in the business, were continued through 1841.
    Wood, one of the defendants in the judgment out of which the controversy arose, stated, that when pressed for money by Derrick-son, he frequently wrote to Cady, and obtained indulgence. One of the letters from Cady to Wood, in 1838, was read, expressing a hope that he would help him to $200 that fall. Two similar letters, in 1841 and 1842, were rejected; they stated that Cady was much pressed, and asking when Wood could let him have certain sums; saying he must let him have certain sums at certain times.
    The defendant also gave in evidence the following instrument, signed by plaintiff on the 31st of December, 1842:
    " Cady v. Wood and Sexton. Judgments in Common Pleas of Crawford county. — In consideration of D. Derrickson releasing me from his charges as counsel for me heretofore in the above cases, I do hereby release him; and he not to act as counsel for me any further, unless employed again.”
    He further gave evidence that, besides the property released, Wood and Sexton owned real estate valued at $2000; that plaintiff had proceeded on that judgment, having employed another attorney after the release, and sold the property appraised by the jury at $1900, and that one lot, valued at $1250, was purchased at $155 by the plaintiff.
    Church, P. J., instructed the jury, that the liability commenced from the expiration of the lien in 1840. The release was ineffectual to destroy the lien unless the attorney had special authority, hence the statute of limitations had not much to do with the case. That where the matter is left to the attorney’s discretion, but so as not to prejudice, he takes the risk and responsibility on himself, in the absence of any thing else. That the release by plaintiff to defendant did not extend to past transactions, but rather to his responsibility to proceed further.
    The rejection of the two letters, the charge as to the liability of defendant, and the effect of the statute of limitations and release, and the omission to notice the conduct of Cady in giving time, and continuing to employ defendant after knowledge of the circumstances, were the material errors assigned. On the last point, there was a prayer for instructions, that if plaintiff intended to hold defendant liable, he should have so informed him at the dissolution of the relation of counsel and client, and not wait until the depreciation of property had disabled him from securing himself, which point was negatived by the court.

      Riddle and Farrelly, for plaintiff in error.
    The discretionary power of an attorney is much greater in this state than in England; and having, as it were, a general power to act for the best interests of his clients, his acts, if they in any way differ from what is deemed beneficial, must be immediately objected to, that he may repair the fault as he best can. This, indeed, is but the rule in all cases of agency. Harper v. Kean, 11 Serg. & Rawle, 280; La Farge v. Kneeland, 7 Cowen, 456; Geyer v. Decker, 1 Yeates, 486; Tuttle v. Cook, 15 Wend. 274; Towle v. Stevenson, 1 Johns. Cas. 110 ; Codwise v. Hacker, 1 Caines’ R. 536; Courcier v. Ritter, 4 Wash. C. C. Rep. 551; Richmond Manufacturing Company v. Starks, 4 Mason, 296; Bredin v. Dubarry, 14 Serg. & Rawle, 27.
    There was ample proof that the defendant acted in good faith, and, - as he supposed, for the best interests of plaintiff. The remaining real estate was to every appearance ample to secure the debt, and, by effecting the arrangement, he supposed he secured a more speedy payment, and obtained cash, instead of being obliged to buy the property at sheriff’s sale. There was therefore a fair question for the jury, whether the act was not a proper one, under the circumstances. The court, however, certainly erred on the question of the statute of limitations; -for that began to run from the knowledge of the act done from which the mischief ensued: Stafford v. Richardson, 15 Wend. 302; Lyon v. Marcley, 1 Watts, 275; Finney v. Cochran, 1 Watts & Serg. 118; Robinson v. Hook, 4 Mason, 139; Wisner v. Ogden, 4 Wash. C. C. Rep. 631, 20 Johns. 33, 48, 278; Alexander v. Westmoreland Bank, 1 Barr, 395.
    The release was mutual, and covered this or nothing. For the responsibility to act in future, which was supposed by the court to be meant, was provided for in a subsequent clause. What, then, could it mean, but past acts ? The rule that the words are to be taken most strongly against the releasor applies here with full force: Jackson v. Gardner, 8 Johns. 406; Jackson v. Blodget, 16 Johns. 172; Roth v. Miller, 15 Serg. & Rawle, 107.
    The compromise of a doubtful claim Ayas a sufficient consideration for the release, though but by parol: Brown v. Sloan, 6 Watts, 421; Rice v. Bixler, 1 Watts & Serg. 445; Perkins v. Gay, 3 Serg. & Rawle, 331.
    There was no question of fraud in this case; and the court beloAV ought to have submitted that to the jury, and that Cady did not seek to recover any thing from Derrickson, until all the property of Woods and Sexton had been sacrificed, and Derrickson was deprived of any means of protecting himself.
    Galbraith, contra.
    There is nothing in Cady’s letters to Wood that shows he had taken the business out of Derrickson’s hands, or had given any indulgence to the defendants in his judgment. The rejected letters Avere therefore not evidence on that ground.
    The statute of limitations does not begin to run against an attorney until the relation of attorney and client has been dissolved : Foster v. Jack, 4 Watts, 334.
    The statute would not run until the expiration of the five years the judgment, released by‘Derrickson, had to run; Derrickson having that time to repair the injury he had done.
    The relations of principal and factor do not apply to attorney and client: Riddle v. Poorman, 3 Penna. Rep. 224; Cox v. Livingston, 2 Watts & Serg. 103.
    A party who has neglected to do his duty is not entitled to notice to that effect from his employer.

      Oct. 7.
   Burnside, J.

Several of the errors were abandoned

in this court. Those principally insisted on will be considered.

1. In rejecting the two letters of the plaintiff to Wood. We think they ought to have been received; they were a part of the series. If a plaintiff will give time, and agree to receive partial payments from his debtor, it is surely pertinent evidence for his counsel, where he charges him with a want of diligence and neglect of his duty.

2. The defendant had pleaded the statute of limitations. It was pressed on the court, who determined that the statute of limitations did not begin to run in favour of the defendant until the dissolution of the relation of counsel and client, on the 31st of December, 1842, and that the statute would not avail as a defence. In this we think there was manifest error. It was not a trust that would be excluded from the operation of the statute. Trusts which are not affected by the statute of limitations, are those technical and continuing trusts which are not cognisable at law, but fall within the proper and exclusive jurisdiction of a court of equity: Finney v. Cochran, 1 Watts & Serg. 112. I agree that fraud will prevent the statute from running; but it is well settled that the statute will commence to run after the discovery of the fraud, or the discovery of facts imputed as fraud: Rush v. Barr, 1 Watts, 120, 7 Johns. Ch. 90, 122. In New York, it was held, that the action must be brought against the attorney for money collected within six years after he received it, or the plaintiff will be barred by the statute: and the doctrine that a trustee cannot plead the statute, does not apply to such a case: Stafford v. Richardson, 15 Wend. 302. The Pennsylvania rule, I take it, would be, for the statute to begin to run from the time the client had notice of the attorney’s receipt of the money. The English rule, in actions on the case for negligence, where the declaration alleges a breach of duty, and a special consequential damage, the cause of action is the breach of duty and not the consequential damage; and the statute runs from the time when the breach of duty is committed, and not from the time the consequential damage accrued: Howell v. Young, 8 Dowl. & Ry. 14, 5 Barn. & Cress. 259. So in an action of assumpsit for not laying out the plaintiff’s money in an annuity, or a good and sufficient security, which the defendant promised to do; held, that the statute of limitations was a good bar to the plaintiff’s recovery, as the promise of the defendant was the gist of the action, although it was commenced within the period of six years from the time it was discovered that the security was invalid, and the defendant knew it to be so at the time the annuity was granted: Brown v. Howard, 4 Moore, 508, 2 Brod. & Bing. 73. The suggestion of an arrangement with the defendants, indeed, of the release, first came from the plaintiff, as appears by the defendant’s letter to the plaintiff of the 7th of January, 1837. The release of the Meadville lots was on the 31st of January, 1838. On the 1st of February following, the defendant wrote to the plaintiff that he had got matters arranged with Wood and Sexton; he mentioned the agreement of condemnation and the arrangement of payment, but said nothing about the release. He ought to have stated the whole arrangement. But on the 23d of April, 1839, the plaintiff wrote to the defendant, “I have ever been sorry that you have relinquished the Sexton property in your village.” At this time, the plaintiff had full knowledge of the release. He does not bring his action until August Term, 1845, more than six years after he had full knowledge that the Sexton lots had been released. We are unanimously of opinion, that the statute of limitations not only operates in this ease, but that it is a bar to the plaintiff’s action and right to recover.

3. On the 31st December, 1842, the parties came to an arrangement, which-resulted in a mutual release. There is no evidence on that subject, except the paper signed by the plaintiff, viz.:

“A- CaA ) Judgment in the Common Pleas of Craw- « L. Wood and R. Sexton. ) ford County.
“ In consideration of David Derrickson releasing me from his charges as counsel for me heretofore, I do hereby release him; and he not to act as counsel for me any further, unless employed again.
“December 31, 1842. Asa Cady.”

The court claimed the exclusive right to declare the legal effect and operation of this paper, and instructed the jury that it did not embrace the present controversy; in this case it formed no defence. What, then, did it embrace ? Here was a misunderstanding between the attorney and his client. The former alleging that he had general discretionary powers, and that he had exercised his best judgment and abilities in the case. The latter denying this, and complaining of the unfortunate release of the Meadville lots, executed more than two years before. There is not an allegation in the paper book of any other point of dissatisfaction. The attorney releases his client from his charges as counsel; and for that consideration, the client releases him, from what ? Why in the case stated in the release; and he is no longer to act as his attorney in the case. As there was no ground of complaint but the one between the parties, and the case of Cady v. Wood and Sexton, stated in their mutual release, it could relate to no other matter. We all think it embraced this case, and no other; no other is mentioned or alluded to in the paper; and so the jury ought to have been instructed.

4. There is but another point in the errors assigned that I deem of any general importance, or worthy of being mentioned. When Cady discovered, in the beginning of the year 1839, that his attorney had released the Meadville lots from the lien of his judgment, in consideration of getting a condemnation on the other parts of his debtor’s estate, and an engagement to make certain payments by, on, or before a fixed period, or an execution might issue; if he meant to disregard this arrangement, and look to the attorney for the payment of the debt, he ought to have so intimated to his attorney : instead of such an intimation, he continues him as his attorney for more than two years longer, then settles with him, obtains a release of his fees, and employs another, proceeds to sell the estate of Wood and Sexton, which had been condemned, purchases it in part for his own use, and after all this, institutes this action for the balance he did not realize from the sales. We do not say the want of notice is a legal bar to the plaintiff’s right of recovery in this action, but it was unquestionably a part of the case, on which the jury ought to have been instructed on the question of damages.

Judgment reversed.


text:
    Commonwealth v. Burrell.
    A writ of quo wananio does not lie except at the suggestion of the attorney-general against one holding the office of Judge of a court of Common Picas.
    This remedy, at the suggestion of an individual, is confined to the cases specified in the act of 1836, sect. 2, which are in the nature of private injuries. In other cases, as where a franchise of the Commonwealth is usurped, or an office held which can only be legally filled by appointment of the Governor or the election of the people, the remedy is exclusively on the suggestion of the attorney-general or Ins deputy ; nor can an individual use the name of the attorney-general on his own motion.
    A quo warranto issued upon the suggestion of Edgar Cc^'wan, setting forth the appointment of Thomas White to the office of President Judge of the Tenth Judicial District, and that his term of office expired under the constitution on the 27th of February, 1847. That at that time the Senate was in session, and so remained until' the 16th March following. That during that period no lawful appointment was made to fill the same. And although the Senate had refused its advice and consent to the appointment of Jeremiah M. Burrell, esquire, before the close of its session, nominated by the Governor as President Judge, &c., yet the Governor notwithstanding, after the close of the session on the 25th March, 1847, by his commission .of that date, granted to the said J. M. B. the said office, &c., — this was signed and sworn to by the relator alone.

      MbOandless now moved to quash the writ,
    on the ground that the defendant was not hound to answer the suggestion of an individual: Rex v. Carmarthen, 2 Burr. 869; 2 Lord Raym. 1409; Nevill and Payne’s case, Cro. Eliz. 304; King v. Ogden, 10 Barn. & Cress. 230; 5 Mass. Rep. 230; 10 Mass. Rep. 290; 1 McCord, 52; 2 Halst. 102; 16 Serg. & Rawle, 140; 9 Ann. c. 20; Wallace v. Anderson, 5 Wheat. 291; Cole on Inform, and Quo War. 169, 56 Law Lib.; 5 Johns. Ch. Rep. 381.

      Williams, contrá,
    cited 2 Rawle, 881; 2 Dall. 112; 3 Dall. 490; 3 Serg. & Rawle, 29, 52; 15 Serg. & Rawle, 131; 10 Mass. Rep. 291. He further prayed to he permitted to amend by inserting the name of the attorney-general.
   Gibson, C. J.

In Heydon’s case, 3 Rep. 7, the judges resolved that the true way to arrive at a sound construction of a doubtful statute, is to consider the old law, the mischief, the remedy, and the true reason of the remedy; and it was said in Stowell v. Zouch, Plowd. 864, 365, as well as in Miles v. Williams, 1 P. Wms. 252, that the safest way is to interpret statutes as near as may be to the common law, and by the course it observed in cases of its own, before the act. Such being a cardinal rule of construction, by which the sages of the law have ever been guided, it is proper to premise that as we never had, strictly speaking, any previous statute on the subject of quo warranto, the remedy stood with us on the foot of the common law, modified, in a measure, by our own customs, partly founded in analogies drawn from the 9 Anne, c. 20, which, however, was not extended as a statute to Pennsylvania. What then was the old law ?

The great English commentator tells us that the writ of quo warranto lies, at the common law, for the usurpation of a franchise in violation of the right of the king; and that it is in the nature of a writ of right for the king : consequently, that no one but the officer of the king can sue it out. That certainly was the law of the olden time. The judgment on it was conclusive of the right, even against the king; and that, together with the slow and unwieldy march of the remedy, made it give place in practice to the more simple and less decisive method of prosecution by information, in the nature of a quo warranto, filed by the attorney-general in the King’s Bench. Thus stands the common-law proceeding in that court. In our own, the common-law writ of quo warranto was not attempted; but, in place of it, recourse was had to the information in the nature of a quo warranto, pretty much as it stands in England at this day, notwithstanding the tenth section of the ninth article of the constitution, which declares, that “ no person shall, for any indictable of-fence, be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia when in actual service, or in time of war or public danger.” In The Commonwealth v. Browne, 1 Serg. & Rawle, 382, it was held that an information in the nature of a quo warranto, being not a criminal but a civil proceeding, to try a right, was not within the constitutional prohibition. Though this decision was unquestionably founded on a sound construction, it still appeared to be not entirely reconcilable to the letter of the constitution.

These informations in nature of quo warranto were found to be so convenient in England, that they were allowed by the 9 Anne to be filed by leave of the court at the suggestion of a corporator, for the determination of disputes growing out of corporate rights, in which the prerogative of the crown was not involved; not, however, in the name of the attorney-general, but in the name of the master of the crown office. That statute, as I have said, was not extended to Pennsylvania by adoption, and ratified by our act to name the laws in force at the Revolution; but the substance of it had been adopted as a part of our own common law.

Thus stood the law of Pennsylvania at the enactment of our statute; and what were the defects in it which were proposed to be remedied ?

Though we are bound to take our positive law from the statute-book, we are at liberty, in doubtful cases, to go behind the curtain for the motives of the enactment; and haply we have not, in this instance, to deal with probabilities or conjectures. The defects pointed out by the commissioners were want of authority to give speedy remedy by writ, not only in cases at the common law, but in cases identical with, or similar to, those provided for by the statute of Anne; want of power in the Supreme Court to try issues of fact in the country; and the delay incidental to confining the remedy in all cases to a single tribunal. Did the legislature intend to do more than supply them ?

The statute gives the Supreme Court power not only to jjroceed by writ, but to send issues to the county courts in cases of which it has exclusive jurisdiction ; and for greater despatch, to give those courts concurrent jurisdiction in cases of usurpation, or forfeiture of county, township, or corporate franchises, offices, or liberties; but the commissioners proposed no allowance of the writ at the suggestion of a relator. That was added while the bill was under discussion, but limited, as we shall see, to county court cases. The bill was reported on the basis of' the common law, by which the attorney-general is the organ of prosecution, and the exception was introduced by the legislature in juxtaposition with, and as part of, the provision for private rights with which that officer and the public have no concern.

The first section of the statute declares, that “writs of quo warranto may be issued by the Supreme Court in the form and manner hereinafter provided, in all cases in which the writ of quo warranto at common law may have been issued, and in which the said court may have heretofore possessed the power of granting informations in nature of such writand consequently in a case like the present. What was meant by the words form and manner, I will presently attempt to make plain.

So much of the second section as gives rise to the question, is in these words: “Writs of quo warranto in the manner and form hereinafter provided, may also be issued by the several Courts of Common Pleas concurrently with the Supreme Court, in the following cases, to wit: 1. In case any person shall usurp, intrude into, or unlawfully hold or exercise, any county or township office within the respective county. 2. In case any person duly elected or appointed to any such office, shall have done, suffered, or omitted to do, any act, matter, or thing, whereby a forfeiture of his office shall by law be created. 3. In case any question shall arise concerning the exercise of any office in any corporation created by authority of law, and having the chief place of business within the respective county. And in any such case, the writ aforesaid may be issued upon the suggestion of the attorney-general, or his deputy, in the respective county, (or of any person or persons desiring to prosecute the same.)”

Now what are we to understand by the words “ any such case ?” Upon every principle of grammatical relation and obvious meaning, we must intend that the legislature had in view the cases specified in the same section immediately preceding the final clause. It was of these it had been speaking, and it was of these it was continuing to speak. The words in brackets were judiciously added to provide, in imitation of the statute of Anne, for cases in which the public interest might not be involved, and in which the attorney-general might not be willing or bound to prosecute. For all cases within the exclusive jurisdiction of the Supreme Court, the omission of such a provision is proof of a design to leave the impetration of the writ to the regulation of the common law, and consequently to put the control of it exclusively within the power of the attorney-general. And the reason for such a disposition of it is an obvious one. In the usurpation of a municipal or corporate office, or in the retainer of one after forfeiture of it or expiration of the incumbent’s term, no franchise or liberty of the Commonwealth is invaded or, withheld; and her prerogative is not to be invoked to redress a grievance not her own. But as there may be an invasion of rights of a corporate or municipal nature, it was necessary to introduce the provisions of the statute of Anne, modified and enlarged, for their protection by writ of quo warranto, subject, just as the matter stands in that statute, to the direction and control, as well as at the risk and expense of the complainant.

But, by the words of the first section of our act, the writ is to issue from the Supreme’ Court in the form and manner subsequently provided; and hence an argument that the manner has regard to the application for it authorized by the second section. Though the manner of issuing a writ has no necessary connection with the right of the party applying for it to sue it out, which is a distinct thing, the inference would not be without plausibility, if the words could not be satisfied by other provisions to which they are naturally applicable and undoubtedly refer. Following the order of priority, in which the words themselves occur, we have, in the first place, the form of the writ specially set down in the fourth section; and in the next we have the manner of issuing it presented with equal particularity in the fifth, in which it is said: “The writ aforesaid may be issued out of the Supreme Court with the leave of the said court in term time, or of any judge-of the said court in vacation; and it is to the same section that the second-itself refers for the manner of issuing the writ out of the Common Pleas — not to the provision for private prosecution. Can it be doubted, then, that the legislature spoke of this provision, when it spoke, in the first section, of the manner of issuing the writ subsequently provided ? The commissioners certainly had reference to it; for they reported the bill without any provision for private prosecution at all; and, if the legislature intended to make ,their amendment a subject of such reference, it is strange that they did not introduce it among the general provisions of the fifth section, instead of sticking it in among the special provisions of the second for specific cases of a private nature where it might be overlooked.

But it has been said that, as the writ may issue from the Supreme Court in all cases in which informations in the nature of quo warranto had been granted, it may issue in the same manner, and consequently, at the suggestion of a relator, even without aid from the clause in the second section. But did the court ever allow an information on such suggestion for a public wrong ? Respublica v. Griffiths, 2 Dall. 112, in which the court gave leave to file against a justice of the peace, establishes no such affirmative. That was an information, but not in nature of a quo warranto; for it was assumed, on all hands, that the gravamen was a personal tort. The distinction between public and private wrongs was evidently preserved; and the decision is consequently an authority for the motion before us — not against it. Nor was it overlooked in Respublica v. Prior, 1 Yeates, 206, in which, also, the information was for a private injury. That the name of the attorney-general was used, proves nothing; for, as we have no master of the crown-office, it was necessarily used in all cases, just as it will have to be used in all cases under our statute. Nor can any adverse inference be drawn from the decision in the Commonwealth v. Browne, 1 Serg. & Rawle, 382, that leave to file an information in the nature of quo warranto at the suggestion of a relator, was discretionary. That was an information against the collector of a city ward; and the court said that the proceeding, though criminal in form, was essentially a civil one. That was all. The subject before the court was exactly such a municipal case as would now fall within the second section of our statute.

As a remedy, for the usurpation of an executive office, or, in other words, an office which can be filled only by appointment of the Governor or by the choice of the people of the state, the statutory writ of quo warranto stands, as to every thing but the form of it, as stood the writ of quo warranto at the common law. The projet of the law, as it was reported by the commissioners, put it on the same footing, even as a remedy for the invasion of a private right; but that there was no design to let a private citizen prosecute for a public wrong, is plain from the third section, which commands the attorney-general to file the suggestion and prosecute the writ where an unchartered association shall have usurped the Commonwealth’s franchise by acting as a corporation. On the usurpation of a municipal or corporate office, as I have said, no franchise or exclusive right of the Commonwealth is invaded; and the intervention of a private prosecutor was extended to it, but not as a remedy for a public wrong. The Commonwealth has her own officer for the protection of her own rights ; and, as she has not explicitly allowed his office to be assumed by any one who may please to try his hand at the business of prosecution as his self-constituted locum tenens, we dare not assume the power to allow it. In Rush v. Caveneaugh, 2 Barr, 189, it was said that, as the office of the attorney-general is a public trust, which involves the exercise of an almost boundless discretion by an officer who ought to stand as impartial as a judge, it might be doubted whether even counsel employed by a private prosecutor should be heard; but that private counsel could, at most, be allowed to act by his permission and under his control. What impartiality is there to be expected from a private prosecutor flushed with the excitement of party victory or defeat ? The officer acts under the obligation of an oath, and at the peril of impeachment; a private prosecutor, under no obligation or responsibility at all; yet we are called upon, without any clear warrant, to let him wield at will the tremendous power of public prosecution. The old common-law right of prosecuting the higher felonies by appeal, which had sprung from a barbarous state of society, was left by our ancestors in the lumber garrets of the law at home ; yet there is as much reason that a champion should be at liberty to enter the lists with a traitor as that a private citizen should be at liberty to close in legal conflict with the usurper of a public office. In the other cases of appeal, the felony was attended with private injury, and there was therefore some show of reason that it should be aveng’ed by the sufferer or a friend; in a case like the present, there was neither an appeal nor an apology for one. The law-officer of the crown was sufficiently prompt then; and why should action ab extra be invoked now ? These are not the days to encourage individuals, or the masses, to snatch the reins from the constituted organs of the government; and did the question before us even admit of a latitude of construction, I would certainly lean to the conservative side of it. Astounding results proceed from small beginnings; and we have already beheld appalling scenes enacted in our commercial emporium with impunity, and almost without resistance, by men who took the law into their own hands in the name of the people.

What induces the mind to pause, not as to the soundness of this conclusion, but as to the policy of the law, is the consideration that, as the governor controls the action of the attorney-general who is dependent on him for office, an unconstitutional appointment by the executive might be without remedy were his legal adviser in error, or regardless of his duty. But the same dependence on the predominance of a party must be felt, place the' power of appointment where we may. In other words, a work of human hands is never perfect; but it is better to bear the ills we have than fly to those we know not of. The legal presumption is, that an officer will do his duty; or that if he do not, the representatives of the people will impeach him, and the senators convict him. The American who denies it, denies a political aphorism, that public virtue is the basis of a republic, and one that is a postulate of his own government. If the presumption is false, it was the business of the convention which framed the constitution on that basis without providing counter-checks to the disturbing forces of party conflict, or of the legislature which framed the statute before us, to dispose of the fallacy. It is our business not to dislocate the joints and articulations of the government, to correct errors of legislation, whether immediately by the people or by their representatives ; but to pronounce the law as we find it. “ Contrary to the spirit and policy of the act,” said Lord Mansfield in Rex v. Saint Peter and Saint Paul, 1 Bott. 433, pl. 483, “ and not obliged by the letter, the court will not make an exception of a case which the act itself has not excepted.” Did we'except the present case, we would legislate — not adjudicate. We would deprive the attorney-general of his official discretion, and compel him to act against the dictates of his judgment, perhaps not, as in this instance, at the bidding of a respectable lawyer, but at the bidding of the most ignorant and despicable man in the community. If a prima facie case were suggested, however notoriously unfounded in fact, the court would be bound to allow the writ without regard to the respectability of the relator. A curious means of procuring the action of the public law officer was used in the Commonwealth v. Fowler, 10 Mass. 290—a case very much like the present. To know by what authority the respondent exercised the powers of a judge in Massachusetts, the House of Representatives of that state ordered the attorney-general, or the solicitor-general, to file an information against him in the nature of a quo warranto. The solicitor-general filed such an information, but recited the order of the House on it, and declared that he had acted in obedience to it. On a motion to quash, the question was, whether the information was the act of the officer or of the House ; and the court very properly held that, as he was bound to act on his own responsibility, the act was his own, and the recital surplusage.

It is needless to say that, had it been deemed the act of the House, it would have been quashed, as a legislative usurpation of his function. To say no more of that, the decision shows that, in the absence of specific enactment, a case like the present stands on the regulation of the common law. Rut it is very far from clear that a greater degree of inconvenience than arises from it, would not arise from exposing every officer to a writ of quo warranto at the suggestion of any person disobliged by him in discharging his duty. As the judgment in a previous instance might not bar another prosecution by a new relator, the incumbent might be plagued to death. In the Commonwealth v. Darlington, who died before judgment, and in the Commonwealth v. Collins, 8 Watts, 881, in which there was judgment of ouster, the writ issued at the suggestion of the attorney-general. The bill reported by the commissioners was based on the law as it stood; and the amendment of it was limited to specific cases, and, as the present is not one of them, it would be reached only by a writ issued by the attorney-general.

Writ quashed.


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    Commonwealth, ex rel. Watt, v. Perkins et al.
    , The county commissioners have a discretionary power in the appointment of collectors of taxes; and where they have decided those returned by the assessor to be unfit, and appointed others, the court will not interfere by mandamus.
    The practice of an assessor returning himself as collector, is improper.

      Oct. 11. Petition for a mandamus to the county commissioners of Allegheny, to compel them to appoint relator collector of taxes for the Fourth Ward of Pittsburgh. The return stated that one Robinson had been elected assessor of that ward. That he had returned himself and the relator for the office of collectors; but his return was not signed, nor did it state they were respectable citizens. That at no time since said return did Watt tender to the commissioners any bond, with warrant of attorney and sureties ; nor did he own any freehold estate; although he had presented a written proposition to give a bond with sufficient security, and requested them to appoint him collector — which had been disregarded by respondents. They, therefore, averred that the return was insufficient, for the reason already stated: that the return'of himself, as one of the persons to be appointed collector, was void; or if not so, he was ineligible, being a defaulter. That on the 15th July, 1847, the respondents had appointed one Hope collector, who was at the time when, &c., and now is, acting, &c.

      Shaler, for the motion.
    Robinson has since died; the only question is, as to Watt’s right. Under the act of 1834, there is no discretion but between the persons returned. Here the one competent agreed to give the security, and he was, therefore, entitled to the office.

      Dunlop and Todd, contra.
    The return was entirely void; for it would be making a man judge in his own cause, if he can select himself to fill the office; 13 Mass. 340; 1 Binn. 77; 2 Binn. 454. It was also void, because no choice was given — one of the persons being incompetent, by act of Assembly, as a defaulter. The relator, not being a freeholder, was further bound to tender a bond; the mere offer to do so was a nullity. But since the office is filled, the proceeding is improper, and the course is to go against the incumbent by quo warranto; 6 Whart. 476; 2 Term Rep. 259; Rex v. Ward, 2 Stra. 893.

      Oct. 18.
   Coulter, J.

The 17th and 18th sections of the act of the 15th April, 1834, must be taken together in their operation on this case. The 17th section requires the assessor to return the' names of two respectable citizens of his ward, township, or district, to the commissioners, one of whom shall be appointed collector; and the 18th section provides, that “ if the assessor fails to return the names of two citizens as hereinbefore provided, or if neither of the persons returned shall give the security specified in the 19th section of the act, to the satisfaction of the commissioners, it shall be the duty of the commissioners to appoint some other suitable person collector.” It appears from the return of the commissioners, that the assessor did fail to make return of the names of two respectable citizens, as required by the act; and also that Joseph Watt, the relator, did not give the security required, or even'offer to do it in a manner • and form satisfactory to them, when he required them to appoint him collector. These facts must be considered as true by this court until they are disproved in the mode established by law; and no issue having been tendered or demanded by the relator, they are doubtless correct.

The commissioners further state that they did appoint a collector for the ward on the 15th July last, who is now lawfully engaged and employed in the duties of his office.

The duty of the commissioners, with regard to the appointment of a collector, is not merely ministerial. A discretion approaching and nearly allied to a judicial function is vested in them, which it is their duty to exercise with care, according to their best judgment. Thus, where the return of the assessor has been properly made, they must judge and determine between the relative merits of the two persons returned. And if persons altogether unfit, or disqualified by being defaulters, as specified in the act, should be returned, it cannot be pretended that the commissioners would be bound to appoint either of them — because the return of the assessor must be considered in aid, and as ancillary to the duty of the commissioners, who are the sworn conservators of the public interest and treasure of the county, so far as its due collection and disbursement is concerned. It was, doubtless, supposed by the legislature that in some wards or townships the commissioners might not be accurately acquainted with individuals, and therefore this aid of the assessor’s return was afforded them. But where they know that the persons returned are disqualified on account of being defaulters, or otherwise flagrantly unsuitable, their appointment would be but poorly excused by the return of the assessors, who are totally irresponsible for the act. It appears from the answer of the commissioners, that one of the persons returned by the assessor, or alleged to be returned, was a defaulter to a large amount, and therefore disqualified by the terms of the statute. Now whether the fact, together with the other facts stated by them, to wit: that the assessor did not state that the citizens were “ respectable citizens of the ward,” and that he did not sign the'return, and was himself one of the persons returned, were sufficient to warrant the commissioners in considering it as no return, is not the question here. They necessarily had a discretion and deliberative function to exercise, and they did exercise it to the best of their judgment. They did not refuse to act, nor leave the office vacant, but deliberated and acted according to their judgment, and therefore the writ of mandamus will not be issued. Commonwealth v. County Commissioners, 5 Binn. 536; Commonwealth v. Cochran, 5 Binn. 87. I am free, however, to say that the defects in the return, or paper alleged to be a return by the assessor, were such as in my judgment justified the commissioners in the course which they adopted.

The office of collector of the Fourth Ward is not vacant, but filled by a person under colour of right at least, and therefore this court cannot command the commissioners to fill it.' The collector has his rights as well as the relator, and we cannot oust him from his office in this proceeding. He has not been summoned to answer, and is not before us. If the relator chooses to question his lawful rights to the office, he may proceed by a writ of quo warranto against him, and this is the only mode by which the legality of his appointment can be tested: Commonwealth v. The County Commissioners, 5 Rawle, 75. I do not wish, however, to be understood as intimating any encouragement of success in that proceeding.

It was stated in the argument that it was a very common practice for an assessor to return himself as one of the persons to be appointed collector. It is not necessary, in this case, to decide whether that fact alone would vitiate the return. But it wears a strong appearance of making a man a judge in his own case, and of converting a faculty of office, designed for public benefit, to a sinister use for the benefit of the party; and where the custom exists, it ought to be discontinued.

The application for the writ of mandamus is refused, the costs to be paid by the applicant, Joseph Watt.


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      Huston, qui tam, v. Moorhead.
    A bond to a retiring partner for the amount of his capital advanced, and his share of the profits, being twelve per cent., is not usurious, although the advance of the capital was upon the bonds of the active partner, who also, at the dissolution and settlement, gave his bond to secure the retiring partner from all debts due by the firm.
    In error from the Common Pleas of Westmoreland.

      Oct. 14. Debt for the penalty for taking usurious interest. Huston, the plaintiff, proved that Moorhead held his notes or obligations for $3400, and that a settlement was effected between them, and a bond taken for $4900, payment of which had been compelled; the $1500 therein added being about twelve per cent, on the $3400 from the maturity of the notes and bonds: the question was, whether this was usurious. There was evidence that Moorhead had been a dormant partner with Huston, and that on the settlement of the concern, the $1500 had been agreed upon as his share of the profits; the $3400 being the capital advanced by him. On the other hand, there was evidence that Moorhead had denied the partnership, and alleged the advance by him was a loan.
    At the time of the settlement, the debts were estimated at about $2200, which Huston undertook to pay, and gave Moorhead an indemnity bond in a penalty of $4000.
    Moorhead also showed that a suit was then pending against him on a debt due by the firm, for eight or nine hundred dollars.
    The plaintiff’s points were, that if the pretended partnership was used as a cloak to obtain more than six per cent., without incurring the risks of a partner, the transaction was usurious; that to be protected, under án allegation that the money was received as profits, there must be a distinct understanding that the losses were to be paid by Moorhead in the proportion of the profits to be received; and that taking bonds for the money loaned or advanced was, in point of law, a securing himself against the risk of loss of capital, and if more than six per cent, was received, it was usurious. White, P. J., left it to the jury to say whether there had been a partnership, and the $1500 was received as profits, instructing them that if this were so, there was no usury; since the liability to strangers could not be affected by agreement between the partners, nor would the indemnity by Huston against the debts of the concern affect the question, especially as it was shown a suit was then pending against Moor-head by one of the creditors.

      Cowan and Foster, for plaintiff in error.
    The proceeding is under the act of 1723, and it is settled that a loan, where no greater risk is incurred than the insolvency of the borrower, is usurious. It was supposed by the court there could be no usury between persons, partners, as to strangers; but if the agreement for payment out of profits was merely colourable, it is equally within the act; Morse v. Wilson, 4 Term Rep. 353; Roberts v. Trenayne, Cro. Jac. 507; Waugh v. Carver, 2 H. Bl. 235; Muzzy v. Whitney, 10 Johns. 228; Turner v. Bissell, 14 Pick. 192; Hazard v. Hazard, 1 Story Rep. 371; Bank U. S. v. Owens et al., 2 Peters, 527; Phillips v. Kirkpatrick, Addis. 124; Evans v. Negley, 13 Serg. & Rawle, 218; Jestons v. Brooke, Cowp. 793. The court below ought, therefore, to have left it to the jury that, though there was a partnership, yet as Moorhead had Huston so bound that his principal was not hazarded, the transaction was usurious.

      Kuhns, contrá.
    The question of partnership was a matter of fact for the jury to decide; Tate v. Wellings, 3 Term Rep. 531. If the principal was at all put at hazard, it makes no difference what amount of interest is charged, it will not be usury. To incur the penalty of usury, there must be a corrupt transaction, in charging more than legal interest, either as a direct loan, or under an arrangement which was intended to cover a loan in fact. Cro. Eliz. 643; 4 Term Rep. 353; Phillips v. Kirkpatrick, Addis. 124; Roberts v. Trenayne, Cro. Jac. 508; Grace v. Smith, 2 W. Bl. 998; Floyer v. Edwards, Cowp. 115; Morse v. Wilson, 4 Term Rep. 353; Comyn on Usury, 30; Anderson v. Maltby, 2 Ves. jun. 248.

      Oct. 26.
   Burnside, J.

The act of the 2d March, 1728, 1 Smith’s Laws, 156, provides that the rate of interest shall be six per cent., prohibits the taking of more, and forfeits the money or other thing lent, where more is taken.

Huston was about to open a store in his own name, and Moor-head gave him $1000. This was in 1837. The store being opened and continued, Moorhead made further advances, for which he took Huston’s notes, until they amounted to $3400. On the 11th June, 1842, they settled, and the debts and credits of the store were taken into consideration. The profits made by the store were estimated. Huston retained the books and the goods, and agreed to pay the debts of the firm, and gave to Moorhead his capital advanced and §1500, in his judgment bond for $4900. Whether this bond was usurious, was the matter in controversy. The plaintiff denied the partnership. The defendant put his defence on that ground, which was fairly put by the court to the jury. The evidence of partnership was clear; but after the settlement, Moor-head took a bond, with security, in $3000, to indemnify him against the debts of the store. These debts, at the settlement, were estimated by Huston to amount to $2200, and were taken into their calculations.

The first error assigned, which is principally urged in this court, is, that the court erred in charging the jury, in effect, that if Moorhead was a partner, and liable to third persons for the debts of the firm, that' then the contract between him and Huston could not be usurious, although he was indemnified against the said debts.”

The instruction of the court to the jury was, “ that if the $1500 included in the bond of the 11th June, 1842, was in lieu and stead of John Moorhead’s share of profits supposed to be earned during a Iona fide partnership, there was no usury; the fact that the result had been disastrous to William Huston, either from bad management, or an over estimate on supposed profits, cannot alter the transaction, and make that corrupt which, at the time it was executed, was honest and lawful.” In this instruction we discover no error. The evidence was indubitably clear that a partnership had existed. The argument of counsel is, that the taking of the bond of-indemnity against the debts of the firm, rendered the $4900 bond usurious. The argument is erroneous; the court went sufficiently far, when they told the jury that it was a circumstance for their consideration, in making up their verdict on the question of partnership. The bond of indemnity was no discharge of Moor-head from the partnership debts. Huston had transacted the whole business, retained the goods, books, and debts of the firm, and agreed to pay the creditors. The taking of the bond of indemnity and security against subsequent mismanagement by Huston, did not render his prior bond usurious. Nor can we see any error in the court’s answer to the points put by the plaintiff’s counsel. On the first point the judge conceded the law was, that if Moorhead, at the time he gave Huston the sums of money charged, so secured himself as to risk nothing but the insolvency of Huston, and then charged him more than six per cent, per annum for the use of the said money, then that charge was usurious, and induced a forfeiture of tbe money, and tbe plaintiff was entitled to recover. This was certainly putting the case as fairly to tbe jury for tbe plaintiff as he could desire. We think tbe cause was carefully tried, and properly left to tbe jury.

Judgment affirmed.