author: Ross, J. Huston, J.

text:
    ABNER B. ROBERTS against WILLIAM BEATTY.
    IN ERROR.
    In a suit brought upon a due-bill in these words, “on the 1st October next, due A. R. R. two bureaus at Carnahan’s shop, in Butler.” Held, that the cause of action was not the subject of a statement, under the act of 21st March, 1806.
    When the time and place for the delivery of specific articles are fixed in the due-bill, the payor has an election to pay at the time and place, either in the property stipulated for, or money; but after the day is gone by, the right of election is gone, and the payee may sue and recover from the payor the value of the specific articles, in money.
    When a contract is entire, for the delivery of a number of specific articles, at a certain time and place, the vendee is not bound to receive a part; and though pari be delivered, he is not liable to pay for the same, if willing to accept and pay for the whole.
    If the vendee accepts a part, he thereby disaffirms the entirety of the contract, and will be obliged to accept and pay for so many articles as are individually furnished according to the contract.
    The general rale of the common law is, that when no time or place is fixed by the contract for the payment or delivery of specific property, there must be an offer or tender within a reasonable time to pay or deliver. If no place be fixed, the obligor or payor must seek the creditor, if within the state, and tender or offer to perform the stipulation contained in the contract; and if the property is portable*, it must be taken to the creditor and delivered to him; or at his residence. If the property be too ponderous, then the debtor must call upon the creditor a reasonable time before, and ask him to appoint a time and place when and where he will receive them.
    Generalrales for the construction of contracts for the delivery of specific articles.
    An action on the case, is the most appropriate remedy for the recovery of the value of specific articles not tendered or delivered on the day stipulated.
    Writ of error to the Common Pleas of Butler county.
    The whole case is so fully stated in the opinion of the- Courts that it renders any additional statement unnecessary.

      Ayres for plaintiff in error.

      Bredin for defendant in error.
   The opinion of the Court was delivered by

Ross, J.

The plaintiff states his cause of action in this case, to be two several writings made by the defendant, and signed with his own proper hand, and delivered to the plaintiff for a full and valuable consideration in the words following:

“On the first day, of October next, due A. B. Roberts two bureaus at Carnahan’s shop in Butler. Wm. Beatty.
“May 31 st, 182,6.”
“On the first of January due Abner B. Roberts two bureaus at Carnahan’s shop in Butler, and one dough-chest. Wm. Beatty„
“May 31 st. 1S26.”

That the said bureaus and dough-chest, at the times mentioned in said writings to be due, were not ready to be delivered at the place mentioned in said writings; nor at any other time or place before the bringing of this suit were they ready. Plaintiff also’ avers that the bureaus aforesaid were each to be of the value of fifteen dollars; and the dough-chest of the value'of six dollars; and that he never did get either of them, to his damage seventy-» •five dollars.

30th May, 182S, defendant pleads payment, with leave, &e.

Replication non solvit, issue, &e.

It is much to be regretted that such laxity of pleading has ever been tolerated by the courts, as exists in this state: more especially, when the case involves the solution of important and complicated questions, never agitated here in the Court of the last resort. The act of the 21st March, 1806, contains some salutary provisions as to amending the pleadings. The fifth section of that act, to enable a plaintiff to conduct his own suit, authorized him to "file a statement of his demand in certain enumerated cases, of which the plaintiff, it is believed, has seldom if ever availed himself: but to which professional indolence or negligence has frequently resorted, as an easy mode of avoiding the trouble necessary to such a perfect understanding of the case, as would be requisite to adapt the declaration or pleas to the particular circumstances existing in it. They have in many instances filed statements in causes, neither within the spirit nor letter of the' act, as indeed has been done in this case.

Such informal, irregular, and illegal pleadingjncreases the difficulties of the Court in their decisions, to an extent only perceived by those acquainted with the logical precision to which every point in controversy is reduced and presented by correct pleading. Formal and correct pleading is the foundation on which most of the principles of the common law rest — that common law, which our ancestors regarded as their birth-right, and the bulwark of their liberties. If we sap the foundation, the superstructure erected by the wisdom and experience of ages, falls prostrate, presenting to the scientific eye, a confused, disjointed, and unintelligible mass. But why, indeed, should formal and correct pleading be dispensed with?. What good purpose is answered by it? Are not the Courts, in order to determine what the law is, obliged to consider almost every case, as if the pleadings were correct?

In the case before us, although no error is assigned on account of the defect of pleading, (and, perhaps, under the decisions of the Courts in this state it would be too late to have assigned such error here) still the Court are of opinion, that if the defendant had demurred to the statement filed, it would have been fatal. All the cases embraced in the provisions of the act, and in which a statement can be filed, are limited to those enumerated in the fifth section of the act of 21st March, 1806, and which from the amount thereof may not be cognizable before a justice of the peace; and also to such cases of the description therein enumerated in which a sum' certain appears to be due; or in which the precise sum due may be ascertained by a calculation without the intervention of a jury. For it is expressly provided, “That if the plaintiff shall appear, but the defendant or defendants shall neglect to appear, and make defence against the demand of the plaintiff or plaintiffs, it shall be the duty of the Court to give judgment by default against the defendant for the sum which shall appear to be due.” I am well aware of the case of Thompson v. Gifford, 12 Serg. & Rawle, 71, and do not think that it.militates against the doctrine now laid down.

Important and novel as this case is in this state; and the decision of which may have an effect on all similar contracts, it has been argued without a single authority being cited on either side. The gentlemen concerned have devolved upon the Court the whple labor of ascertaining the decisions in England or our sister states: a labor almost incompatible with the performance of the other duties required of a judge. In the words of a judicious essayist of a sister state, “Counsel must present the case to the Court, investigate the principles on which it depends, produce authorities, and trace out the analogies of the law, or the Court are not responsible for a correct decision. This is most emphatically true, under the present organization of our Courts:” — and I would add, is equally true and applicable to our own state.

The questions which this case presents for our determination are — 1st. Was the defendant at liberty to tender at any time before judgment rendered against him, the cabinet work stipulated to be delivered, and thereby discharge himself from the payment of his contract in money? 2nd. Was the plaintiff bound to receive a part?

The rules of construction of contracts are in general the same at law as in equity. 2 Black. Com. 434. 2 Burr. 1108. 3 Vez. 6 92. 1 Peters’ Rep. 193. 1 Fond. Equ. 5 ed. 147.

In expounding an agreement we must consider the subject-matter; — the object of making it; — the sense in which the parties mutually understood it at the time it was made; — -the place where it was entered into; — the use to which any articles stipuláted to be delivered were to be applied ; — if materials for building, when and where to be used — and finally, the practical exposition, and the, general understanding, custom, and usage amongst those who enter into similar contracts, in the execution and performance thereof. The construction must be reasonable; and the intention of the parties, if it can be collected from the instrument, and an attentive consideration of the circumstances always adverted to, with such others as may be incident to the nature and character of the particular contract, must control every other construction inconsistent with it;’unless repugnant with some settled principle'of law. Chit. on Cont. 19. 2 Pick. R. 515, Barrett v. Prichard. 1 Penn. R. 224, Demi v. Bossler. If these positions be correct, then the Court below was wrong in laying it down to the jury, in broad and unqualified terms, that the prevailing notions, or opinions of the country should be discountenanced by Courts of justice, so far as respected agreements of the description of those on which this suit is brought: being payable in money if defendant failed to perform on the day stipulated. If it be true, that the prevailing notions and opinions of the country are, as stated by the Judge, (and there can be no doubt but that he was well satisfied of its truth before he asserted the fact,) is it not fair to presume that the prevailing notions and opinions of the country, in which the contract was made, were in contemplation of the parties at the time, and considered by them as the rule-by which their contract would be construed:— as being indicative of their intentions. But the prevailing notions and opinions of the country were in accordance with the law of the land: for such I deem the common law to be. 5th Dane’s Dig. title Debt, plea Tender, p. 486 to 493. 8 East. 168, Hume v. Peplor. 5 Bac. Ab. 5. tit. Tender. Fordley’s Case. 1 Leon. 68. In Townsend v. Wells, 3 Day’s Rep. 327, which was an action on a promissory note for $80, to be paid in good West India rum, sugar, or molasses, at the election of the payee, within eight days after date, it was-held to be unnecessary to aver that’ the payee had made his election, and given notice thereof to the promisor; as the latter was bound, at all events, to make payment within eight days, in one of the articles specified ; and, that on failure, he became immediately liable on the note, The latter part of this case applies to the position laid down above. The former part, is an answer to the argument, that there must be a request averred, and- proved, to enable the plaintiff to sustain his action:-See 5 Dane’s Dig. Art. 7. p. 499, and the numerous cases there cited, as to the time when a tender must be made:-See also 10 Mass. Rep. 230. The case of Green & Maffit v. Annin & Henry, Halsted’s Rep. 461, clearly shows that a tender of specific articles, must be made on the day stipulated.

The books referred to, and the cases there cited proves, that, the prevailing notions and opinions to be discountenanced, were in perfect accordance with the principles of the common law. It is on this mistaken view of the law, that the whole of the charge is based. It is of course predicated on false premises; and the deductions drawn from them are necessarily erroneous. Here the case might be safely left without any further examination, to show that the Court erred: but there are other matters, which deserve and shall receive some attention.

There is a well settled distinction between executory and executed contracts. The former convey a chose in action: the latter a chose in possession. 2 Bl. Com. 443. 1 Com. on Cont. 3. 3 John. Rep. 388, 424. 15 John. Rep. 34. M’Donald v. Hewitt. In this case the consideration was executed. It had been -.received by-the defendant in advance. This is manifest, fromd'ne terms of the instrument, which is: On ,the first day of October next, due A. B. Roberts, two -bureaus, at Carnahan’s shop in Butler.” The meaning of the word “ due” is owe. It is so un-derstoodin common parlance. It is so used in official settlements; and in settlements between individuals. Bue A B.on settlement, $60,, means, there is thdt sum owing to A B. With what truth eould it be said, that there was due A. B. Roberts two bureaus; unless the defendant was indebted to him, two bureaus?. It also sufficiently appears, that 4ke‘defendant had received the consideration in advance,by the defence which heset up-,; and the facts faintly portrayed in the charge of the Court. If a merchant or cabinet-maker gives a due bill to A, payable in goods, or. cabinet work; and if no time, or place of payment be designated,‘the due-bill contains an acknowledgment, that.A has paid him imad-vance, for the amount of the goods or cabinet work, therein expressed. No time, or place of payment, was designated in the due bills .in this case. They, therefore, contain an acknowledgment, that the plaintiff had paid the defendant in advance. See Chipman’s Essay on contracts for the payment of specific articles, 29, 29.

On the part of the plaintiff nothing further was required do be done, in order to entitle him to claim a performance of the contract by the defendant. The day and place being fixed by the agreement, .it waslhe duty of the defendant to have tendered the articles, on the day stipulated; or to have been ready at the place, prepared to do so. The rule, laid down in the case of Paradise v. Jane Alleyn, 27, cited in 10 East. 533, it is said, has been often recognized in Courts of law, as a sound one ; i. e. that'when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may; notwithstanding any accident by inevitable necessity; because he might have provided against it by his-contract. ” See also 1 Yeates, 36, 37. Whether the plaintiff or any person for him attended, would- make no difference. Chip, on Cont, 28. Dane's Dig. 493, art. 3, sec. 1. According to the French law the consigna" tion must be made at the day and hour appointed; and in order to be valid, it ought to be of the'whole sum due, unless the debtor had, by the agreement, a right to pay in parts. Poth. on Ob. Nos. 444, 544. The case of Green et als. v. Moffat et als. 1 Halsted Rep. 461, was debt on bond, conditioned for the payment of ¿6391 5s. at Albany, in good leather. The plea was payment. The proof offered, was tender of the leather; which the Court rejected. Ch. J. Kinsey observed: Payment is an absolute discharge of the bond. Tender can in no instance be considered so. The leather was not delivered on the day stipulated. The right of election on the part of the defendant ceased. The case in Pro. Kb. title debt, PI. 159, is so perfectly analogous, that we may refer to it, as authoritative. One had undertaken to pay ¿630, or deliver twenty bales of wool. The obligee demanded the money ; and it was held, before the day fixed for payment, that the obligee' had his election to pay either: after the day, without any tender being made, the obligee might demand the money.” The principle of the cases are exactly similar. AH agreements to pay in specific articles, are presumed to be made in favour of the debtor ; and he may, in all cases, pay the amount of the debt in money, in lieu of the articles, which, by the terms of the contract, the creditor had agreed to receive. And if he tenders the articles on the day fixed by the agreement, he may plead it, and continue his right to pay the property instead of the money. Poth. on Ob. No. 497, also 1 Poth. art. 3, sec. 2, No. 223. Chip, on Cont. 35. See the same principle in code Napoleon, book 3, page 324. No special request is necessary to render the payor liable, when the day and place are fixed by the contract. 1 Bibb, 449, 452, Mitchel v. Gregory. In Shrewsbury v. Buckley, it was decided that a covenant by J and L, to deliver to B and others, at their furnace in Kanawha, 6000 bushels of salt per month, &c., damages might be recovered for the non-delivery of any instalment, although a demand was not made at the saltworks. 4 Bibb, 260. So in Thomas v. Roosa, 7 Johns. Rep. 461, it was held, that on a note, by which defendant promised to pay plaintiff a good horse, to be worth with saddle and bridle $S0, and ^goods out of the store amounting to $20, no request was necessary, or requisite ; for a request was not parcel of the contract.

In this case, the day and place being fixed by the agreement, the payor should have attended on the day at Carnahan’s shop, ready and prepared to deliver the property in satisfaction of the due bills. On being sued, he should have pleaded the tender, and that he Was still ready, &c.; or such matters as would have amounted to a tender, or an excuse, or discharge. This would have been an exercise of his right of election, at a time when that right existed; and would, under proper pleas, have continued it. unto the trial. But the payor did not deliver the property on the day, and at the place, stipulated in his due-bill: nor was he then ready and prepared to deliver the same. He, therefore, lost his right of election to pay in the money, or the property, and became liable to pay the amount of the consideration in money. Halsted's Rep. 463. Chit. on Cont. 304. 10 Mass. Rep. 230.

The other point in this cause, assigned for error, is contained in the 4th and 5th exceptions, viz.: That.the Court charged the jury that the plaintiff was bound to take a part, when the whole was not ready: and that if part of the property was ready when the plaintiff called, the jury might sever the contract, and give damages for that part which was not ready according to the contract.

The law appears to be well settled, that an entire contract cannot be apportioned, unless the defendant disaffirms the entirety pf the contract, by receiving a partial benefit. Chit. on Cont. 273, and the authorities there cited. Where there is an entire contract for a specific quantity of goods, the vendee is not bound to receive a part; and though part be delivered, he is not liable to pay the same, if willing to accept and pay for the whole. Chit. on Cont. 132. 2 New Rep. 61. 2 Stark. 281, Walker v. Dixon. 3 Bulst, 225, 326. If a person order several articles from a tradesman at the same time, though at different prices, he may consider the whole as forming one order ; and, be will not be obliged to accept, or pay for any particular article ; unless all the rest are furnished on the terms agreed upon. But if he accepts of one article, he is precluded from saying the order was entire ; and will be obliged to accept and pay for so many, as are individually furnished according to the contract. 1 Camp. 53. 6 Moore, 114. Chit. on Cont. 132. Let this case be tested by the principles of law referred to ; and it will be seen, whether there is any error in that part of the charge, complained of in these exceptions. The statement filed, sets out two due bills of the same date, but payable at different times. The first is payable the first day of October, 1826. The second is payable the first of January, 1827. Each due bill was one entire contract in itself; and, as far as appears, had no connection with the other. The tender of the bureaus, on the first day of October, 1826; or a readiness to comply with the stipulation was an .obligation imposed by the contract, to be performed by the payor, long before the other became due. And, if the defendant was prepared and ready on that day, to deliver the two bureaus, the plaintiff was bound to receive them. He could not object that those stipulated to be delivered on the first of January following, were not also delivered; because the defendant was not then bound to deliver them, or have them ready. Each contract was separate and distinct from the other. Each, however, constituted an .entire contract, and the plaintiff was not bound to receive less than the whole of the articles, stipulated to be delivered in the one, on which the property might be tendered, or offered to be delivered.

On this view of the subject, it does not depend upon the circumstances whether the part offered to be delivered could be enjoyed without the other; but upon the circumstance, whether the contract was entire. Having shewn by unquestionable authority, that each due-bill was an entire contract, which the law does notallow to be severed in the performance; unless by the assent of the other par'iy, or acts amounting to an assent, the whole of the charge, in reference to this subject, proceeded on mistaken principles of law; and adopted a course of reasoning calculated to mislead the jury, by impressing them with an opinion that the law was different, from what it is really found to be on examination.

It is an indisputable proposition, that when the obligation, or agreement .on which the plaintiff rests his right to recover, is proved or admitted, the debtor who alleges that he has discharged it, is obliged to prove the payment. 11 Serg. & Rawle, 234, Lewis v. Morgan, 2 Evan’s Pothier, 125. 4 Bibb. 260. In this, case the plea is payment. If the pleadings had been formal, the action should have been case. The plea should have been tender, or that defendant was ready and prepared to deliver the property on the day stipulated: — or, perhaps, under the modern decisions, the plea of non-assumpsit, with notice of the special matter relied on, might have’answered, if the declaration had been in assumpsit or case. See Wilt & Green v. Ogden, 13 Johns. 56. The plea of payment, if found for the defendant, is an absolute discharge of all liability on the contract. 1 Halsted Rep. 463. The plaintiff would have been left without any remedy, whereby he could recover the consideration advanced, or the property stipulated to be delivered; for the bureaus in this case were not so described, or identified, as to enable him to sustain an action of trover, or reple-vin for them. If they had been set apart and delivered at Car-nahan’s shop, on the day stipulated, then the person with whom they were left might have been considered as the bailee of the plaintiff; and an action could have been instituted to recover them or the value thereof. 8 Johns. Rep. 478. In Coit & Woolsey, v Houston, 3 Johns. Cas. 243, Thompson, Justice, says, “From an examination of the authorities, I think I am warranted in adopting as a general rule, that an agreement, in order to be an effectual plea in bar, must he executed and satisfied with a recompense in fact, or with an action, or other remedy, to execute it and recover a recompense. Plowd. 5. 11. Sir T. Jones, 168. And in Case v. Barber, Sir T. Rahm, 450. Accord, without satisfaction, but with tender, was pleaded, and the Court held it good.” The present case is too clear on this point, to require any further investigation, to show, that the verdict on the plea of payment, when there has indeed been no payment, or satisfaction, or any delivery of the property, either actually, or constructively, so as to enable the plaintiff to recover it, would be pregnant not only with the greatest injustice, but also contrary to every principle of law applicable to the case. ’ If there was no other reason, this alone would be sufficient to reverse the judgment.

The common law forms the basis of all the judicial decisions on the subject of contracts to deliver goods, or pay specific articles, as far as I have been able to examine the reports of the different states. The general rule of the common law is, that when no time or place is fixed by the contract for the delivery, or payment of the specific property, there must be an offer, or tender within a reasonable time to pay or deliver. If no place be fixed, the obligor or payor must seek the creditor, if within the state, and tender, or offer to perform the stipulation contained in the co'ntraet: and if the property is portable, it must be taken to the creditor, and delivered to him, or at his residence. If the property be two ponderous, or bulky, then the debtor must call upon the creditor, a reasonable time beforehand, and ask him to appoint a time and place, when and where he will receive them. If the creditor refuses, the defendant may plead this specially in discharge of his obligation. If a day foe fixed for the performance, the debtor or creditor, who has to do any precedent act, (or both, if the acts be concurrent,) must perform or be ready and offer to perform on the day fixed. If either neglect to perform where the covenants are mutual, the offer or tender of a performance on the part of the other, if the contract be executory, will enable him to institute a suit for damages. After-the contract is broken, uncertain damages have accrued, as to which there can be no tender. 8 East. 168.

In Kentucky the Courts have so departed from the rules of the common law, as to adopt it as a general rule, that if no place be fixed for a delivery of the property in payment of a contract, the delivery must be made at the debtor’s place of residence. But. the exceptions to this rule are more extensive than the rule itself. See. Littel's selected cases, Chambers v. Winn, in Hardin’s Rep. 79, in anote to the case of Fletcher v. Taylor. In aliother respects they adopt the principles of the common law, so far as I have been able to discover, on an examination of the cases decided in that state. See Knilland v. Scantland, Hardin’s Rep. 149. Grant v. Groshort, Hard. 85. Miller, v. Alcorn, 3 Bibb. 267. Mitchell v. Gregory, 1 Bibb. 449. 452.

In Vermont, Connecticut, New-Jersey, and Massachusetts, they have adopted the common law, in the exposition of such contracts; as will appear by referring to Townsend v. Wells, 3 Day’s Rep. 327. Green v. Annin, 1 Halsted Rep. 461, Lent v. Paddleford, 11 Mass. 230.

In New Hampshire, they have decided that a tender on the day, discharged the defendant from any further liability. Weld v. Hadley, Adams’ N. H. Rep. 323.

In Maine, they have not only adopted the common law, but have also decided, “That if a note be given for specific articles to a creditor living out of the United States; and if no place be assigned for the delivery of them, the foreign domicil does not absolve the debtor from the obligation of ascertaining from the creditor the place where he will receive the goods.” Bixly v. Whitney, 5 Greenleaf’s Rep. 192.

Thej1' have also adopted the common law in New-York, as will appear from the cases already cited, and the case in 4. Cowen, 452, in which the Court say, it is the duty of the obligor to seek the obligee, and know where he will appoint to receive the lumber, before the day, and it must be delivered where he appoints. See also 13 Johns. 56.

Upon a review of all the cases which have come under my notice, I find nothing to justify the charge of the Court below. It is true, that many contradictory decisions, and some doubts exist as to questions, which have not been involved in the decision of this case; and on which I express no opinion. But no authority-can be found to support the charge, which is, indeed, calculated, to introduce new notions into our code of laws, in the construction of contracts, different from the prevailing opinions of the country where such contracts are made. There is no evasion by the judge. The question is placed in bold relief; and presented for our consideration in a tangible form. The judgment, however, must be reversed, and a venire de novo awarded.

Huston, J.

I cannot say that I dissent from the opinion delivered; but I cannot say that I agree to it. The points raised are new to me; the decisions in the different states are different, nay contradictory. This is the first case on the subject which has been before this Court. I agree that the charge of the Court below is wrong, but I am not ready to lay down any general rule: and as to the present case we have nothing on which an opinion can be formed. I have not found any case on a note like the present: the cases are on notes to pay so much money in specified goods; or to pay so much in money or goods; but this case is to pay two bureaus,&e., and nomonej’’ mentioned. Iinclinetothe opinion, that on such a note no other than an action on the case ean be brought; and the proceedings must be as in any other action on the case, ihe verdict cannot be in debt but in damages. So far I agi’ee with the opinion delivered. I am not prepared to say, a recovery can be had on such a note, in a suit and proceedings in debt, nor positively totally to deny it, though with my present impression I would deny it. I am equally uncertain on the subject of a necessity for a demand on one side, or of tender on the other; the decisions in the neighboring states are contradictory on this subject; and I would prefer that each case and all its circumstances should come before us, and we should feel our way gradually. I am however of opinion that a tender of goods at any time before trial is not sufficient; and I reserve the right, if ever the case comes up again, to give my opinion on it, as the facts shall shew it to be.

Judgment reversed and a venire de novo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    CHARLES McMILLAN against JOHN HALL.
    IN ERROR.
    A defendant who appeals from a judgment of a justice, and obtains a general verdict in his favour, «entitled to recover costs from the plaintiff; although 1m gave evidence to the jury which he did not give to the justice.
    Writ of error to Allegheny county.
    The plaintiff in error was the plaintiff below; he instituted his suit before a justice of the peace and obtained a judgment against Hall for $34, from which the defendant appealed. The cause was afterwards tried in Court, and a verdict rendered for the defendant. The plaintiff asked the Court to enter judgment without costs, on the ground that the defendant had given evidence to the jury which he had not given to the justice. The fact established on the hearing of that motion was, that a witness had been sworn and gave evidence to the jury, who had also been offered as a witness before the justice, but rejected by him on the ground of interest.
    The Court below entered judgment for the defendant, with costs. The plaintiff sued out this writ of error, which was argued by Fetterman and Watson for plaintiff in error, and JBurke contra. ^

   Judgment affirmed.


text:
    DAVID RANKIN against JEREMIAH MURRY.
    IN ERROR.
    On an appeal from a justice of tlie peace, and a verdict and judgment rendered for the plaintiff for a sum less than one hundred dollars, the judgment will not be reversed, although the damages laid in the declaration be two hundred dollars..
    If a plaintiff obtains a verdict for a less sum than the award of arbitrators from which the defendant appealed, he is not entitled to recover the costs which accrued subsequently to the appeal*
    Error to Allegheny county.

      Jeremiah Murry instituted this suit before a justice of the-peace, and obtained a judgment against the defendant, David' Rankin, for #97, from which the defendant appealed; a narr in assumpsit was filed, and the damages laid at $>200. The cause was referred under the compulsoiy arbitration law, and an award made in favour of the-plaintiff for $100' 91;' from which the defendant again appealed, and paid the costs. The cause was after-wards tried by a jury, and a verdict and judgment were given for the plaintiff for $38 07, upon which he issued a Fi Fa for the amount of the judgment and full costs: to reverse which the. defendant sued out this writ, and assigned the following errors.
    1. The damages laid- in the declaration shews the want of jurisdiction in a justice, before whom the cause originated.
    2. The plaintiff is not entitled to recover costs, the verdict being for a less sum than-the award of the arbitrators.

      Fetterman for plaintiff in error.

      Burke for defendant in error.
   Judgment reversed as to the costs which accrued subsequently to the appeal from the award of arbitrators; affirmed as to-the residue.


author: Smith, J. Rogeks, J. Gibson, C. J.

text:
    JAMES GRAY against ALEXANDER BRACKENRIDGE and HUGH DAVIS.
    IN ERROR.
    ’-On an issue being joined, to ascertain the amount due upon-a judgment, given as security, the Court has a right to .order-, that the plaintiff’s account or statement of the amount due to him, shall be considered as prima facie evidence of his claim: and it is not error to instruct the jury, that the burden of proof falls upon the defendant, to shew payment of the debt, or why it should not'be paid.
    ;In such a case, the plaintiff, being an attorney -at law, has a legal right to recover from the defendant a quantum meruit for his professional services.
    .The loan of credit is a matter of business, and as legitimate a subject of contract and compensation as any other consideration.
    This cause came up by writ of error to the Common Pleas of Allegheny county.
    To April Term, 1823, the plaintiff.in error, James Gray, confessed a judgmentto the defendants in error, who were plaintiffs’ below, for the sum of $14,000. On the 17th August, 1827, the defendant obtained a rule on the plaintiff, JL. Brachenridge, to ■shew cause Why an issue should not be awarded, to ascertain ..the actual amount due upon this judgment. On the same day Brack-enridge filed an account of moneys advanced, services rendered, and-responsibilities assumed for the defendant, to secure all which,, the said judgment was given. At a subsequent period an issue .was directed, and the cause was tried.
    All the errors assigned in this Oourt were to the opinion of the ■Court below, which, together with'the opinion of this Court, will ,as fully explain the case, as it is in the power of the reporters to do, not having been present at the argument, which was at September Term, 1829.
    Shaler, President. — -A judgment having been given by the defendant.to'the plaintiff, for $14,000, the reasonable presumption, as between the parties would be, that it was given for a valid consideration;-and when the rule was taken-to shew cause why the judgment should not be opened, had the decision of the question solely rested on 'the affidavit of the defendant, not as it was by the previous affidavit of the plaintiff, no further proceedings could have been had upon -the case, consistently with the rules that have heretofore governed the Court; -but the affidavit of •the defendant having been remotely sustained by circumstances," as sworn to by a disinterested party, it became our duty to make •such order, as would enable the defendant to shew the payment .of the moneys, for the security of which,'the judgment was held.
    The Court, therefore, directed an issue to'ascertain several faets# the greater part of which, by the agreement of the parties them-' selves, during the trial, are now excluded from your inquiry.
    It has been observed before, that the entry of a judgment, as between the parties themselves, imports a strong presumption that it is given for a sufficient consideration, Few persons feel an inclination to give a mere voluntary judgment.
    If such judgment is entered in fraud of creditors, though void as to them, it is binding as between the parties. A defendant could not get rid of it, although plenary proof existed, that it had been given for the promotion of fraud. But when a judgment is given for a fair consideration and honest purpose, should the relation of the parties be changed, or should the contingencies it was intended to meet, fail to take effect, it becomes a matter of equity to examine into the grounds of the judgment, and if all its objects have been answered, or the contingency upon which it is predicated, can never happen, it is the duty of the Court to set aside the judgment.
    But it is to be observed in such a case, that the judgment itself remains prima fucie evidence of the amount due, until the defendant impeaches it by full proof.
    The plaintiff has already the most solemn recognition upon record of the justice of his claim. The burden of proof, in the .attempt to reduce the extent of its lien, is necessarily thrown upon the defendant. The plaintiff exhibits his judgment; the defendant is then to prove his payments. This must ever be the course, or the most miserable injustice must be done to a judgment creditor:
    The Court, in relation to this issue, has been governed by this principle; it is the doctrine of safe precedents, and must be adhered to.
    It was therefore directed, that the account of Mr. Braclcent'idge should be received as prima facie evidence of the amount due upon the judgment, and that the defendant should have leave to prove payment, or give evidence, which in point of justice and equity, would amount to payment of the debt.
    The question then for the jury to determine is, not whether .the plaintiff has given evidence of his claim, apart from his account, as filed; but whether the defendant has given satisfactory proof of payments beyond those admitted by the plaintiff.
    The addition to the account, as it is laid before you by the plaintiff, must be considered as equally conclusive upon the defendants, under the agreeinent at the bar, with the original account filed; and must be met by the defendant upon similar principles.
    From the general ground on which this .case must’be decided, I proceed to those principles, that are applicable to the particular nature of accounts.

      If an account be presented to a party, and he permits a length of time to elapse, before he returns it, or objects to it, he, by such delay, admits the general tenor of the account rendered; and it is sufficient for a plaintiff, when he comes into court, to shew, that the account was left with the defendant for a reasonable time, and not returned with objections. If the defendant chooses to dispute or falsify, he may; but it is necessary that he should give, not slight, but strong, evidence of error or mistake, or the account must be taken against him as rendered.
    If small errors are detected in an account so rendered, without timely objection, theyform no ground from which to presume the restj^f the account, or any items in it, are incorrect. No jury, for slight reasons, would be warranted in such a presumption, it would be against sound policy and contravene justice.
    If gross errors are detected, a different rule might prevail; but here, in the case of great errors in an account, when a judgment had been confessed upon it, the discovery of such errors could not authorize a jury in presuming that other items were erroneous. There is one matter which has been warmly contested in this case, which calls for an expression of our judicial opinion. I.refer to the item of charge for professional services. ' There is no confidence subsisting out of the domestic relations, of a nature so delicate, as that between counsel and client. In all countries, it has been considered as most honorable, and-so often attended with circumstances requiring, not only consummate skill and undeviating integrity, but great prudence and profound secrecy. It must therefore frequently-occur, that acts of the highest utility are done by a counsel or attorney, when the faith reposed.in him renders it impossible that the act of the counsel can be known to any other than his client. It is difficult to put a monied estimate on such exertions of talents as has been exhibited on the occasion now before us, although there are eases in which a remuneration may be adapted to the occasion, to the talents, to the legal knowledge of counsel. But when to a talent for conducting business, with reasonable skill in court, is superadded the persevering industry' and attention necessary to prepare a cause out of court, and where the person who possessed these combined talents, has them called into requisition for a series of years, by a party concerned in an extensive field of litigation, and when, in addition to> this most arduous employment, the aid of his purse, credit, talent for business and finance is required, I know how difficult it must be for you to fix a compensation suited to the importance of services so constantly and faithfully rendered.
    I think the enumeration of cases in which the plaintiff was engaged, forms a very inconsiderable bases for this estimate; but if you were to apply to each of them the ordinary fees of counsel, it strikes me it Would transcend considerably the compensation-charged by plaintiff for his professional services. All the facts connected with the point are for your determination.
    As to the charge for services rendered in the Pentland case, and other cases involving the same principle, .the only question that can arise, is not the justice, but the reasonableness of the charge.
    In the mere loan of money, the law has fixed the amount of compensation to .be derived -fr-om -tire -loan; but there are certain advances, for which mercantile custom has fixed a compensation, dependent upon the nature of the transaction, and the extent of the risk; and for the hypothecation, if I may so call it, of personal eredits, value must be ascertained either from -known custom, the circumstances of the peculiar case.,, or the compact of the parties. When A lends his credit to B, it is to him .of as much moment as an advance of money. It is a matter of business, a fair subject of compensation, it affords a claim, as just as any other consideration; the value of such credit, in the mercantile world especially, depends upon the character, standing and condition of the party giving it; and as it is more or less valuable to the party to whom it is given, so ought -the compensation to be governed •by the-greater or less degree of advantage derived to the party. The reasonableness.of the charge is, in the present case, a fair subject for .the consideration of the jury.
    Equity regards not so much the manner of doing a thing, as the thing done. It inquires what -was the advantage -proposed? Has the party desired the advantage? If so, the compensation proposed must be paid. Thus, in the case of the Wright claim, if the advancement of the money was the object-in view, if the gist of the matter in the McKillip ease, and in reference to the Doran corner, was securing .the property to the defendant, and this was done-through the credit, exertions, or advances of Brack-enridge; and if in the McMahon affair the point of possession was obtained, the compensation should be paid, although the peculiar means devised were -not those originally intended -to be pursued by the parties.
    I put these cases by way of illustration to the rule. The question as to the late charge of compensation for these particular services is, as the services themselves are, matters of consideration •for the jury; and whether this matter is sufficiently explained., they will determine by -their verdict.

      Burke and Kennedy for plaintiff in .error.

      Fetterman and Baldwin for defendants in error.
   The opinion of the Court was delivered by

Smith, J.

The plaintiff in error, had by virtue of a warrant of attorney confessed a judgment to the defendants in error, of April term, 1823, for the sum of 14,000 dollars. In 1827 certain measures were taken to ascertain the amount due on this judgement, and a verdict and judgment were rendered on the 30th of April, 1828, in favour of the plaintiffs for 1,150 dollars. On the trial, by agreement of the parties, the controversy was reduced to a mere matter of account; in the investigation of which, however, much time was consumed, and some important principles drawn into discussion. It was admitted by the plaintiffs, that the judgment had been given by the defendant for responsibilities and advances to be incurred, and made, after the entry of the same, as well as for other demands ; and an account was exhibited by them, of the amount due, under the judgment and secured by the same. In this account, one item of charge was, for professional services, rendered by one of the plaintiffs, (Mr. Brackenridge,) as counsel and attorney of the defendant, and another was for lending his credit to the defendant to obtain loans; on which items, as well as on other matters, the Court charged in favour of the plaintiffs. The, defendant, having excepted to this charge, has assigned the following errors..

1. It being admitted by the plaintiffs, that this judgment was given by the defendant for responsibilities and advances to be incurred, and made after the entry of the judgment, the Court erred in charging the jury that the plaintiff’s account of such advances was to be taken as prima facie correct.

2. The Coui't erred in charging the jury in substance, that any claims or accounts, which the plaintiff may have presented, in addition to those contained in his Account as filed, should be taken by the jury &s prima facie evidence of such claims or accounts; and the Court also erred in permitting to go to the jury art account of the plaintiffs, containing items which occurred since the issue directed in this case.

3. The Court erred in charging the jury in substance, that they were at liberty to allow the defendants in error a quantum, meruit for his professional services, beyond the fees allowed by act of assembly

4. The Court erred in charging the jury in substance, that a man may lend his credit to another, and though he has no money to pay, or advance, he may charge and be allowed beyond six per centum for so doing.

The Court were right in admitting the plaintiff’s account as prima facie evidence. It had been in fact, filed long before ths trial, and was on record, in consequence of directions given, when the issue was formed to this effect, that it should be received a a, prima facie evidence of the amount due on the judgment; but that the defendant should beat liberty to prove payments, or give in evidence such matters, which in equity and justice might amount to payment of the plaintiffs’ demand. The question therefore simply was, whether the defendant had given proof of payments, for which the plaintiffs had not credited him, or of circumstances constituting an equitable defence. So in regard to the additional items, mentioned in the second error, they must be considered as conclusive on the defendant, (in consequence of his agreement made at the trial) as well as the original account filed,, unless he can answer them by a similar defence. And this may suffice in regard to the first and second errors.

The third error assigned, has been warmly contested here, as the point involved in it, was on the trial. I allude to the charge of compensation for professional services. We have duly considered the matter, and a majority of the Court is of the opinion, that under the circumstances, the charge of the Court was correct. We must not forget the real state of the question before the Court and jury. Professional services had been rendered to the defendant at his speeial instance and request. For a series of years, and in an extensive course of litigation, causes were prepared out of Court, and were tried in Court, by one of the plaintiffs. As to these facts there was no dispute. The account being filed and received as evidence of the demand, the defendant, under the agreement, was called on to show payment, or to show that in equity and conscience, it ought not to be paid. Of actual payment, there was no pretence ; and we cannot perceive, in the only fact urged, — that the services were those of a counsellor at law,— any thing which should, in good conscience, debar the plaintiffs from a reasonable compensation. Had the defendant paid for those services, no one could contend, that he ever could recover back the amount, although no such directions were given by the Court, and no such agreement were made by the parties, as existed in this case. The answer would have been, you cannot recover, because the defendant has honestly received and may fairly retain the money. Morris v. Tarin, 1 Dall. 147. I regard this claim, under the circumstances, as standing upon as just a footing, as if there had been an express verbal promise to pay, or a promissory note given for the same services by the defendant. As the consideration of such a note, was declared in Mooney v. Lloyd, to be sufficient to support an action upon it, so, there can be no doubt, it is equally good, on the present issue, to sustain this item of the account against the objection which has been urged ; for so far from its being against equity to demand payment of the defendant, it is manifestly unjust and inequitable in him to refuse it. We say therefore that the defendant failed in showing, that he ought not, in conscience, to be called upon to pay; and that the Court below committed no error in that part of the charge.

As to the last error assigned: — The law certainly has fixed the compensation to be paid for the loan of money; but I take it, to be equally well settled that by the custom of merchants, for advances or credits made by one to another, a compensation may be allowable, by express contract; always depending, it is true, upon the nature of the transaction and the risk run. The charge of the Court, in our opinion, was in this particular also correct ; — for if A lends his credit to B, it is to him of as much moment as an advance of money, he obtains money by it; it. is a matter of business, fairly to be compensated, and affords as just a claim as any other consideration. The jury must always say, whether the charge be reasonable or not. We cannot discover any error in this case, and therefore affirm the judgment.

Rogeks, J.

Dissented on the ground that the decision overruled that of Moony v. Lloyd, 5 Serg. & Rawle, 452, which, although he did not approve, yet he was for adhering to it.

Gibson, C. J.

Expressed his satisfaction in over-ruling that case.

Judgment affirmed.


author: Gibsok, C. ff.

text:
    CHARLES JOHNSTON’S heirs against JOSIAH R. HARVY.
    IN ERROR'.
    A conveyance of a’ tract of land by a father to his sons, in trust for the payment of all judgments on record against the grantor, and for his maintenance and that of his family, is fraudulent as to creditors.
    A purchaser from the sons is affected % the fraud, when' the language in the deed raises such a presumption of the existence of other than judgment creditors, as should put a cautious and aconscientious man-upon inquiry.
    A fraudulent conveyance is no conveyance against the interest intended to he defrauded. Therefore in an ejectment by on'e who purchased the land at sheriff’s sale, as the property of the father, it is competent for the plaintiff', in order to avoid some irregularities in the sheriff’s sale, to give evidence of acts of confirmation by the defendant; such as the receipt from the sheriff' of the balance of the purchase money, after the payment of liens.
    In such a case the sons, if they had applied, would have been entitled to such balance of the proceeds of sale by the sheriff; but a fraudulent conveyance raises no equity to cast on the-creditor the burden of seeing to the application of the surplus purchase money,-between the grantor and grantee.
    An objection strictly technical may be waived by the party on the record, who is the only person the creditor is bound to ltuow.
    Appeal by defendant from the Circuit Court held by Smith, J, for Allegheny county.
    This was ait action of ejectment, brought by Charles Johnston against Josiah It. Harvy, for the recovery of a tract of land. Both parties claimed under Hugh McDonald, senior, who had been owner of a larger tract, containing 155 acres,'of which the land in dispute was a part.
    The plaintiff gave in evidence, the record of a judgment in the-Court of Common Pleas of Westmoreland county, which was obtained before a justice on the SOth September, 1824, for $99 31, and which was filed 1st January, 1825, and entered to November term, 1824 — -fi. fa. No. 100, November Term, 1824, tested 4th September, 1824 — Return, “Nulla Bona.” Tes.fi. fa. to Allegheny county, No. 104, February term, 1825, tested 4th December, 1824, and docketed in Allegheny county 6th January, 1825, and to-January term, 1825, No. 200, which was levied on a tract of land-containing 155 aei’es, inquisiton and condemnation l'9th March, 1825. These executions were all objected to by the defendant, but admitted by the Court. Tes. ven. expos, issued 7th April, 1825, and to May term, 1-825, No. 66. This excution had not been returned to the office; but there was this indorsement on it, 4‘21st March, 1825, sold premises to Charles Johnston for $1010 00.” This was also objected to, on the ground that it had never been returned, but the objection was over-ruled.

      The plaintiff then offered in evidence'the sheriff’s deed to-‘-him, dated 21st March, 1825, and acknowledged 8th November, 1823. To this the defendant objected, for the reason, that the deed was dated, and recited a sale made, -beforethe writ of ven. expos. was issued.
    The objection was over-ruled, and the deed read.
    The plaintiff then gave in evidence, a power of attorney "from •Hugh McDonald to John McDonald, dated 5th April, 1825, recorded 17th November, 1825, and a receipt, in pursuance there,of, from John McDonald to sheriff Stewart, for the balance of the purchase money, after paying lien creditors.

      Sheriff Stewart, being sworn as a witness, said, “he could not say whether the property was sold on the 21st March or not; he never published any other advertisement of the sale, than that produced, to wit, for the 21st May. [Here the Pittsburg Gazette of 29th April, 1825, containing,the advertisement of sale, to be on. the 21st May, 1825, was given in evidence.]
    Plaintiff then gave in evidence a patent to himself, dated 25th ’February, 1828., for .150 aeres, TOO perches, and allowance: granted in consideration of the money paid by Hugh McDonald on the warrant,-which was dated'6th November, 17S4, and which ■recites the sheriff’s sale, and the deed dated 21st March, 1825.
    He also gave in evidence-the deeds' under which the defendant claimed, to wit, deed from Hugh McDonald and wife, to William and James McDonald, dated -8th March, 1824, acknowledged the same day, and ..recorded 10th March, 1824, for 155 acres of land-: and the deed from William and James McDonald to Josia'h JR. Harvey., dated 14th October, 1824, for 21 acres, 32 •perches and allowance, acknowledged same day, and recorded 17th January, 1S25. And "then offered -the petition of Hugh McDonald, for the benefit of the insolvent laws; for the purpose” of shewing, that the conveyance of Hugh McDonald was fraudulent. This was objeeted-to by defendant-; the objection was overruled and evidence read. Also a list of liens against Hugh McDonald, showing that most of the judgments were assigned to Charles Johnston, and that several of them were part paid in the •summer of 1824.
    The defendant relied upon the two last-mentioned deeds, which were read by the plaintiff; an abstract of the one from Hugh McDonald and wife to William and James McDonald, is as follows.
    “Witnesseth, that the said Hugh McDonald, senior, for and •in .consideration of the said William and James WcDonald agreeing to pay, and actually paying off all judgments, that are ■now entered against a certain .tract or messuage of land, lying and being situate in the township of Wilkins, county of Allegheny, and state aforesaid, containing one hundred and fifty-five acres and forty-nine perches and allowance of six per cent, for roads, &c., be the same more or less; butted and bounded as follows,” (here the property is described,) “on the prothonotary’s docket, in Greensburg, county of Westmoreland, or on the prothonotary’s docket, in the city of Pittsburg, county of Allegheny, or that is now, at this time, entered on both dockets, and to deed the above described tract at their own expense in their own names, after paying off the aforesaid judgment or judgments, if there is more than one entered against it at this time, and to keep him, the said Hugh M’Donald and Hannah, his wife, in clothing, boarding, and washing, and lodging as long as they live, and, to keep the rest of the family, in the same, unto that they see fit to go to their own hand, and he the said Hugh McDonald, senior, hath granted, bargained and sold, and by these presents doth grant, bargain and sell, unto the said William and James McDonald, their heirs and assigns, all those messuages, above-mentioned or described, and also all trees, &c. To have and to hold the said messuage, lot or tract of land and all and singular pther the premises above, and every part and parcel thereof, with the appurtenances, unto the said William and James McDonald, their heirs and assigns, to the only proper use and behoof of the said Williapi and James McDonald, their heirs and assigns forever. And the said Hugh McDonald, senior, for himself and his heirs, the said messuage, lot or tract, and premises, and every part thereof, against him and his heirs, and against him, and all and every other person and persons, and judgment and judgments, other than what is on the day of the date of these presents, entered on the prothonotary’s docket whatsoever, to the said William and James McDonald, their heirs and assigns, shall and will warrant and forever defend, by these presents: possession of the said premises is given to the said V/illiam and James McDonald on the day of the date of these presents.”
    The defendant then gave in evidence a deed from Hugh McDonald and wife to Charles Johnston the plaintiff, dated 8Ih January, 1823, acknowledged the same day; recorded 27th March, 1824: consideration $249 90, and which was for a part of the land included in the levy and sheriff’s sale, given in evidence by the plaintiff.

      John Wilson, Esq. sworn. I drew the deed from High McDonald to William and James McDonald — it was acknowledged before me. At the time the parties came before me, McDonald said he was become old — he believed his sou John was dead — was not able to work the farm himself; and James would not stay at home to work the farm — no one to work it b.ut Henri/ — that James had come home before and said he had money coming where he had been at work. That he, H. McDonald, was in debt and could not pay it — not able to work the farm. Principal debt he was afraid of was the costs of a suit he had lost in West-moreland. He was afraid the judgment would be removed, and a levy on this land. James stated he had money and would pay off that judgment. Witness observed he bad.sold a part to Charles Johnston. He said he had, and would make a deed for it in a few days, that there was to be a settlement between him and Charles Johnson. Told me to be careful not to include Johnson’s. Said he expected every debt he was in, was bn the docket, and would all come due together against him. On 3d of May I was at Hugh McDonald’s. Hugh McDonald did not know his letters — not a smart man — was old. He said he expected all the debts were on his docket and he wished them all to he paid. Charged me to be careful in what I did, and not to make him a rogue in his old days,-as he could not read nor write. If there was any blunder in drawing the deed, it was my mistake. He believed all his debts were on the docket, but from his words I knew it was his intention that all his debts should be paid. A few days after the deed was drawn I met Mr. Johnston at the recorder’s office — he was there about the recording of his deed. Pie explained to me that I had included in the deed the property that Mr. McDonald had sold to him. I told him it was my mistake. Johnston asked me if it was McDonald’s intention to cheat him out of the money he owed him. I told him not, that it was the old man’s intention to pay all his debts. William Johnston is the son of Charles, so is James; and William Moi'roio is married to his sister. On the 13th June, 1S27, had conversation with Charles Johnston at William Johnston’s. I then understood from them that the deed to Charles Johnston was made after the deed to William and James McDonald. William said that his father would not have bought Harvy’s place. Johnston lived near to Harvy ; not more than between a mile and half a mile. At the time of the deed James said he had money coming to him from some turnpike company; they were to go on paying the debts. The reason I did not insert the time of the payment, was, that the boys mentioned that they had money coming to them and would go on and pay the debts.' It was the first deed I ever drew. Old McDonald was as honest a man as ever lived. After the deed I saw Mr. hosier’s receipt for a hundred dollars in’the hands of William and James M’Donald. They paid me a note which I had against the old man.

      L. Stewart, Esq. sworn. Mr. Pentland, attorney of Charles Johnston, gave me the levy and insisted upon mv inserting the coartes and distances.

      William Linnard, sworn. I recollect the sale to Harvy., in August or September, 1824. Survey was made and he took-possession. Johnston knew of Harvy’s purchase. Harvy -went on immediately with building and other improvements. Knew old Hugh McDonald for 30 years, he was an honest, upright man. Johnston told me he did not deny that he knew of Harry’s going into possession. Heard Hugh McDonald say that he was in debt, and intended to pay all his debts. Heard him say that he had dealings with Johnston; that he had sold him land, and had given him cow§ and money, but could get no settlement. Land at the least worth $10 an acre.

      William Morrow, sworn. Is one of the subscribing witnesses to the deed from McDonald to Johnston. It was executed and acknowledged in 1824. It was acknowledged before a son of Charles Johnston. Can’t tell how deed and ■ acknowledgment came to be dated in 1822.
    Points submitted by defendant’s counsel.
    1. The testatum fi.fa. from Westmoreland county, was ille» gal and not a valid foundation of a -sheriff’s sale and deed to the plaintiff in that writ.
    2. The sheriff advertised the sale of this property to take plaee on the 21st May, 1825. He stated in his examination, that he had not advertised for a sale on any other day. The sale therefore to the plaintiff in the execution, on the 21st March, was void.
    3. If the jury believe that Charles Johnston knew of the sale to Harvy, he was bound in equity to confine his levy., in the first instance, to that part of the tract which remained unsold.
    4. If the jury believe the testimony of John Wilson, Esq. and William Linnard, the conveyance of Hugh McDonald to his sons was not fraudulent. But if the deed were fraudulent, in the construction of law, the. conveyance to Harvy for a valuable consideration, which was-paid, was valid.
    5. The conveyance by Hugh McDonald to his sons, vested the property in them, as trustees for the benefit of creditors; and by that deed the creditors were first to be paid. The reservation to McDonald and his family, did not interfere with the rights of creditors, who were to be first paid. If this transaction was morally fair and honest, it is valid.
    6. If Charles Johnston be justly chargeable with fraud or imposition in his acts or proceedings in relation to this property, his heirs cannot recover. The fraud of Charles Johnston is to be inferred from the facts appearing upon the record from Greens-burg, in the ante-dating of his deed from McDonald and wife — in procuring assignment of the judgments — in the facts that no money was paid at the date of the deed from McDonald — in the haste of his legal proceedings against the property — directing the levy including his own land, and that of defendant in the sale of 21st March, 1825.
    To which the Court in substance answered:
    1. The testatum Ji.Jh. from Westmoreland county, although not as correct as it might have been, cannot now be,set aside, nor overhauled collaterally, and must, therefore, be taken to be a valid foundation of a sheriff’s sale and deed, made in puisuance of it
    2. If the insertion of the 21st of March, 1825, in the sheriff’s deed to Johnston, is -in the opinion of the jury a mistake, and If this be proved to their satisfaction, it will not affect the purchaser’s title. The defendant, McDonald, would have taken advantage of any error, by an application to the Court of Common Pleas before the deed was acknowledged. No such application appears to have been made, but instead of that, it appears that, on the 17th of November, 1825, Hugh McDonald, by his attorney, John McDonald, received the balance of the purchase money,, $432 15 from the sheriff. How far he thereby ratified the sale, and the proceedings before and after it, is submitted for your consideration. In the opinion of the Court it is a ratification of the same. The errors, if there be any in the proceedings, cannot now. be inquired into collaterally in this action.
    3. If the jury believe that Charles Johnston knew of the sale to Harvy, equity would have confined him, in the first place, to a levy on that part of the tract of land which remained unsold, particularly so, if the jury believe that Harvy paid $200 for his land, and that this sum was appropriated to discharge the debts of Hugh McDonald. But that it was so appropriated, strong and conclusive evidence is necessary, and must appear to the satisfaction of the jury, before it can avail the defendant.
    4. The jury must decide what effect the evidence of Wilson and Linnard ought to haye as to the deed. In the opinion of the Court, the deed from the father to the sons is fraudulent as to creditors, on its face: the deed from the sons to Harvy is tainted with the same fraud. The deed, as between the parties to it, is good and valid.
    5. A voluntary, and on the face of it, a fraudulent conveyance, by one in failing circumstances, to his sons, is void as to creditors; and the property conveyed is by law considered a fund for all creditors; and if the conveyance does not provide a mode, or state when creditors are to be paid, the grantees cannot be considered as trustees for the creditors, although it does state that they are first to be paid. If the evidence satisfy the jury that the deed was to save the property, or in other words to delay and hinder creditors, it is as to them fraudulent and void. In a case like the present, the law cannot and will not consider the transaction morally fair and honest, and, at the same time, legally fraudulent and void — it knows of no such distinction.
    6. The Court do.not think that Charles Johnston can be justly charged with fraud or imposition, in relation to this property, for the reasons mentioned in the sixth point; and that his heirs on that ground would not be prevented from recovering.
    The jury having rendered a verdict for the plaintiff, the defendant moved for anew trial, and assigned the following reasons:
    1. The Court erred in admitting to be read, in evidence, the fi.fa., testatum fi.fa. and' venditioni exponas from the court of common pleas of Westmoreland county, and also in admitting the sheriff's deed to be read in evidence.
    2. The Court erred in charging the jury, that the testatum fi.. fa. issued from the courtj of common pleas of Westmoreland county, was a valid foundation of the sheriff's sale to Charles Johnston.

    3. In leaving it to the jury to decide whether the.insertion of the 21st March, as the date of the sheriff’s 'sale, recited in his deed and return, to the writ of venditioni exponas, was a mistake, no mistake being proved, or attempted to be proved by plaintiff; and in saying that the receipt of the balance of money arising from the sheriff’s sale, by Hugh McDonald was a ratification of all the proceedings, &e.
    4. In charging the jury that the payment of the money ($200 received from Harvy by William and J. McDonald) to the creditors Hugh McDonald, sen’r., ought to be proved by stronger and more conclusive evidence than any other facts. This is the plain import of the charge.
    5. The Court did not answer the fourth point submitted; nor state the legal effect of the testimony of Wilson and Linnard as requested.
    6. In excluding from the jury the inference of fraud and imposition deducible from the facts referred to in the' sixth point.
    The motion was over-ruled, and judgment entered on the verdict; from which the defendant appealed.

      Burke for appellant.
    The defendant claims the premises in controversy by virtue of a sale, by the sheriff of Allegheny county, under a testatum venditioni exponas, issued in a case wherein he was plaintiff, against Hugh McDonald. It is contended by us that all the proceedings, subsequent to the judgment, are grossly irregular; that they are not merely voidable, but absolutely void. Under these proceedings it is conceived, a stranger could take no title, but the sherifPs vendee, being the plaintiff in the execution, is affected with notice of these irregularities, and against him, they certainly may be taken advantage of, by a person standing in the situation of the defendant, who claims the premises by virtue of a deed to the date of the plaintiff’s judgment. The ninth section-of the act entitled “An act for taking lands in execution for the payment of'debts,” Purd. Big. 267, provides, that if a judgment, which shall warrant the awarding of the writ of execution, whereupon any land, &c. shall be sold, shall afterwards be-reversed for error, the lands shall not be restored, but restitution-of the money only shall be made. The provisions of this act are clearly just. The judgment is the act of the court, and the purchaser at sheriff’s sale should not be affected by its subsequent reversal; perhaps, even the plaintiff in the execution, relying tipon the judgment of the court, and becoming the purchaser, ought not under our act of assembly, to have the 'sale avoided, by the reversal of the judgment; and so is the case of Arnold v. Gorr, I Rawle, 223. But the irregularities in this case, of which we complain, are subsequent to the judgment; they are the plaintiff’s own proceedings; and he being the purchaser, against him they may be taken advantage of. This is well settled. Goodyer v. dunce, Yelv. 179. Samms’ Lessee v. Alexander, 3 Yeates, 268. Hiester v. Fortner, 2 Finn. 40; opinion of Judge Yeates in page 46, 47. Snyder’s Lessee v. Snyder, 6 Binh. 4-S3, 499. McPherson v. Cunliff, 11 Serg. & Rutóle, 435, 436.
    But it will be said that these proceedings cannot be inquired into collaterally. If M’Donald himself were the defendant in this ejectment, the circumstances of the case might prevent him_ from now objecting to the proceedings ; he might have been heard when the deed was offered for acknowledgment. But Harvy stands in a very different situation ; and he is certainly entitled to see that there was a good authority for the sale. 4 Wheaton, 503-6. 14 Serg. & Rawle, 181-4.
    In this case the plaintiff obtained a judgment before a justice, on the 30th September, 1824. He entered it up as a lien on the 1st January, 1825. He issued a fi. fa. to November term, 1824, tested 4th Sept. 1824. There was no judgment to warrant this writ. It is therefore a nullity, and furnished no valid foundation for a testatum. The testatum, fi. fa. was issued to the February term, 1325, tested 4th December, 1824, and filed in the prothonotary’s office of Allegheny county, on the 6th January, 1825. Even if the fi. fa. were regular, the test. fi. fa. cannot be supported. The case of Lesher v. Giehr} 1 Dali..
      330, has settled the law, that a term must intervene after the return- of a fi. fa. before a test, fi. fa. can issue.
    The vend. exp. was issued on the 7th of April, 1825. — r The sheriff returned a sale made on the 21st of March, 1825. The sheriff’s deed bears date the same day, and recites a sale made on. the same day. The sale was therefore made without a vend, exp. If this proceeding can be sustained, the authority of a number of cases will be subverted. It is settled that in ejectment the sheriff’s vendee before he offers his deed in evidence, must show-a judgment and regular proceedings under it. The deed is not even prima facie-evidence, that- the proper steps were pursued, to .justify the sale.- 4 Wheat. 77. 3 Wash. C. C. R. 546, 550.- 2 Minn. 270. 2 Yeates, 86. 1. Peters’ C. C. R. 64. 5 Serg. & Rawle, 332. 9 Serg. & Rawle, 212,.221. .2 Serg. & Rawle, 53. 6 Serg. & Rawle, 457. Ibid. 173. 1> Yeates, 195. I- Serg,. & Rawle, 92.
    If we are right in the foregoing positions,- the plaintiff must fail; and the remaining points-need not be laboriously examined. The judge, however, clearly erred in charging the-jury that the deed irom-Hugh McDonald to W. & J. McDonald, under whom the defendant claims, was fraudulent. As explained by the testimony of the scrivener, it was clearly not fraudulent. The intention of the grantor was to appropriate his property, in the first instance, to his creditors. The grantees were trustees for that purpose, and the mere circumstance of a reservation for the benefit of the grantor, after the payment of creditors, does not render the deed fraudulent. 5- Cowan, 447. 12 Serg. & Rawle, 448. 5 Con. Rep. 140. 7 Fichering, 10.

      Mr. Burhe also.insisted upon the sufficiency of the-other reasons assigned for a new trial.

      Selden and Fentland for appellee,
    a part, only, of whose argument, the reporter heard.
    Admitting the fi. fa-, to have been irregular and erroneous?yet it is not void, but only voidable-; and cannot be taken advantage of collaterally, in this action. In an action of trespass against the sheriff he would- be justified by this execution; and if so, the title under it would be good. 1 Ves-. 195. The party may, upon the reversal of the execution, or judgment, b'e entitled to his money, but the title of the vendee, whether he be plaintiff or not, is good.. Yelverton, 179. 8 Colee Re.p. 192. The irregularity-of a fi. fa. returned nulla bona, does not vitiate a proceeding, upon a test. fi. fa., grounded upon it. Cochrartv. Cummin, 4 Yeates, 136. 8 Mod. 2S2. 20 Vin. 261. A sale without a ven. expos, is-good. Willing v. ■ Drown, -6 Serg. & Rawle,■ 458.

      ■W. Forward for appellant, in reply.
    If there was a mistake in the advertisement, or in the recital in the deed, of tire time of sale, it should have been explained by evidence: — but on the contrary: the facts of the date of the advertisement, and the return of a sale, made on the March, were positively proved. Can the jury presume mistake ? Certainly not. 'Can the jury ■.find that the evidence given by the plaintiff himself is false ?
    It was fully proved that the deed was made for the purpose of paying all the debts of the grantor ; although by the mistake of the scrivener it was not so stated in the deed: and it was also proved that Johnsion knew this-. After this proof, the judge said that “the deed ivas fraudulent upon its face.,” The transfer of property for the payment of debts, is a lawful transaction, and always has been recognized by our Courts. The time for the payment of the debts is never mentioned in the deed. There is no set form of words necessary in order to raise a trust: and would not a Court of Chancery raise the relation of trustee to -the creditors, under the parol evidence which was given in this cause ? It was a.contract to raise a trust, and the fund was ample for the purpose.

      Johnston practised a fraud on the law, by taking out an execution, before he obtained his judgment, for the purpose of defeating an honest trust, The deed from -McDonald.to him, and the acknowledgment before his own son were ante-dated: — he purchased up judgment-s to prevent competition in the sale: — he included his own land in the levy: — he entered satisfaction upon •several judgments, which, there is a strong probability, were paid ■by Harvy: — there was indeed a tissue of error and management on the part of Johnsion, from the beginning to the end: — why •should the Court withdraw these'facts'from;the jury?
   'The opinion of'the Court was delivered by

Gibsok, C. ff.

Doubtless the want of a.sufficient interval between the transcript and rthe testatum, was an irregularity; and perhaps, the question is, whether the acceptance of.the residue of the purchase money by the debtor, as whose estate the land was sold, operates as a confirmation of the sale against one who claims ■under him, and through a fraudulent conveyance.

A transaction more palpably fraudulent than this conveyance, can hardly be imagined. A father on the verge of insolvency, •conveys to his sons, in consideration of an agreement to pay off certain judgments, which he seems to think may be incumbrances, as well as the.residue of the purchase money, to the-state; and to .maintain him and his wife while they live, and the rest of the family till they are able to maintain themselves. Is not that, in principle, the case of McAllister v. Marshall, 6 Binney, 388, in which a tacit agreement to vest a part of the property in trustees, for the benefit of the family, avoided the conveyance as to creditors who had not assented to the arrangement. The stat. 13 Eliz. which professes to avoid conveyances, “with intent to delay, hinder, or defraud creditors,” would be of little use, if a debtor might put his estate beyond the reach of his creditors, and still get a living from it. The ordinary consideration for an estate, may be subjected to execution, specifically, or wrested from the debtor’s grasp by execution of his body; but the reservation of a living is too inseparable from his person, and too indefinite to be made liable to satisfaction in either of these ways, or to pass by an assignment under the insolvent laws. In Russel v. Hammond, 1 Atk. 13, where the debtor took back an annuity to the value of the property comprised in the settlement, the creditors were relieved, because that was said to be equivalent to retention of possession. That was a settlement of personal estate; but in the construction of the statute, no other difference, that I can perceive, has been made in respect of the species, than to require that a conveyance of chattels be accompanied with actual possession. In Adlum v. Yard, 1 Rawle, 163, a conveyance in trust for payment of debts, was unanimously held to be in delay of creditors hecause the trustees were restrained from selling the trust estate for three years. And on the authority of that case, I thought myself justified in ruling, at the circuit, that a conveyance to sons, who were to pay nothing but the interest of the purchase money during their father’s life, could not be sustained.

Is the defendant, then, to be affected by notice of the fraud? He is a purchaser from the sons, and as the fraudulent conveyance is a link in his title, he is to be affected by whatever appears from the terms of it. But it is not enough that it would be fraudulent against creditors, without bringing home to him notice that there were creditors to be defrauded. In the absence of that fact, the conveyance to the sons would be good, and his purchase from them unexceptionable. There is, however, enough on the face of the deed to have induced a violent presumption of the existence of creditors who might not be paid. The trust was to pay judgments which should be entered up at the date of the conveyance; and by the grantor’s implied admission, there might or might not, according to circumstances, be creditors who had not obtained judgments, and who would be defrauded unless they could have recourse to the land. The grant was in consideration of payment by the sons of “all judgments that are now entered against a certain tract«f land, &c, an the prothonotary’s docket at Greensburg, or on the prothonotary’s docket in Pittsburg, or that are now At this time entered on both dockets.” Why now at this time, unless others were expected? The object was, manifestly, to put the estate into the hands of the sons, with no other burden than what the law had already imposed on it. If then it appeared even probable,that there were debts unprovided for, was not that enough to put a cautious and a conscientious man on inquiry? To purchase with even a suspicion of the fact, was unconscionable. Doubt should have been resolved into certainty; and for want of this, the defendant having had the means of information in his power, must stand by the title of those from whom he purchased.

Putting his supposed equity out of the way, then, what is there to hinder the debtor from confirming the sale? “A fraudulent conveyance,” says Chief Justice Kent, 4 Johns. 598, “is no conveyance against the interests intended to be defrauded.” As owner of the land so far as to subject it to satisfaction of his debts, the debtor is certainly competent to dispense with a fieri facias or an inquisition before-hand: and why may he not produce the same effect by confirmation subsequently? The conveyance is doubtless good between the parties to it, and the purposes of satisfaction being answered, the residue belongs to the grantee: hence the difficulty is in conceiving how the debtor can confirm the sale by receiving what does not belong'to him. The solution is that as regards the creditor, the party on the record is the owner of every thing, and that the confirmation operates not on the grantee’s right to the residue, but on the debtor’s title to the land; and it may consequently consist of any act which sufficiently evinces his assent to the proceedings. The creditor has nothing to do with the grantee who is without day; and although the Court would not wantonly see his interest sacrificed by collusion, its interference in his behalf would be more of grace than of right. He certainly would not be suffered to interfere before the acknowledgment of the sheriff’s deed on the ground of mere informality. An objection strictly technical may be waived by the party on the record, who is the only person that the creditor is bound to know. If the estate is divested as to him, it is also divested as to one who stands in the place of his fraudulent grantee, who unlike the alienee of land bound by a judgment, is not entitled to a day in court on a scire facias. A fraudulent conveyance raises no equity to cast on the creditor, the burden of seeing to the application of the surplus purchase money, between the grantor and the grantee. Had the defendant here preferred his claim in season, he would have had leave to take it out of court, and that would clearly have been a confirmation: having omitted to do so, his remedy is against the original grantor who received it. and who was competent, by an expression of assent, to ratify all that had been done. It seems, therefore, the verdict passed rightly for the plaintiff.

Huston, J. and'jEoss, J. dissented.

Judgment affirmed.


author: Rogers, J.

text:
    SAMUEL and CALEB TREVOR’S Administrators against JOSEPH ELLENBERGER'S Executors.
    IN ERROR.
    J. T. died in 1816, indebted to C. T. and J. E., seemed by speciality, each obtained a judgment against the estate of J. T., in 1820: the judgment of C. T. was revived by scire facias, executions issued thereon, and in 1828 the real estate of J. T. was sold by the sheriff. The judgment of J. E. was revived by scire facias, issued in 1826. Held: That each of these judgments was entitled to a pro rala share of the proceeds of sate, which was insufficient to pay both.
    The debts of a deceased person remain a lien upon his real estate for seven years, and if .a suitfor the recovery thereof is commenced immediately before the seven years expire, the lien is thereby continued for five years longer.
    Writ of error to the Common Pleas of Fayette county.
    This was an amicable action, in which' the administrators of Samuel and Caleb Trevor were defendants, and the executors of Joseph Ellenberger, were plaintiffs. The following statement of facts was agreed upon by the parties, and considered in the nature of a special verdict; upon which the'Court below (Baird president,) rendered a judgment for the plaintiffs.

      John 'Tillará died in 1816, indebted to the estate of Samuel and Caleb Trevor, by specialty, on which judgment was obtained on the 7t'h day of April, 1820, before a justice of the peace, for the sum of $129 82, a transcript of which judgment was filed with the prot'honotary of the Court of Common Pleas of Fayette county, and entered on .the docket on the 8th day of April, 1820. A scire facias issued on the said judgment thus entered, from the said court, on the 31st day of July, 1822, and the judgment was revived on the 22 d day of August, 1822, on which a scire facias issued, to October term 1822, and an alias scire facias to January term, 1823. Tb'e real estate of John Tillará, dec’d. was levied on and condemned, and an alias venditioni exponas to June term, 1828, was issued, by virtue of which the real estate was sold, and the money brought into court. John Tillará also died indebted by specialty to Christian and Christina Reist, executors of Joseph Ellenberger, who, on the 11th day of April, 1820, ob~ tained five several judgments, before a justice of the peace, on five several notes under seal; one thereof for the s.um of @32 50, one other for $59 06¶, one other for @56 06¶, one other for @53 064, one other for @24 03, and transcripts thereof were filed in like manner as aforesaid on the 21st April, 1820. On these several judgments, scire facias to revive the same were issued, on the 17th day of March, 18-26, and the judgments revived at June term, 1818. If the Court should be of opinion-that the judgments of the plaintiffs Or the debts founded on the specialities aforesaid, were -subsisting liens on the real estate sold as aforesaid, and entitled to be^ paid pro rata with the judgment of the defendant, then judgment Jto be given for the-plaintiffs. But should it be of the opinion that the judgment for the defendant is entitled to a preference, and that the moneys made by the sale aforesaid ought to be appropriated' to his claim, then judgment shall be entered for the'defendant.
    The estate of the said John Tillará, dec’d. is insufficient to pay the debts against it. , '

      Daiuson for plaintiff in error:
    Contended that a judgment obtained against the estate of a deceased person must be revived within five years in order to preserve its lien. Fryhoffer v. Bushy, 17 Serg. & Rawle, 121-Furd. Dig. 533.

      Kennedy for defendant in error.
    The grade of the debts against the estate of a deceased person, are fixed at the time of his death, and cannot be changed by the subsequent acts of the creditor. These contending claims were of equal grade, and so they must remain.
   The opinion of the Court was delivered by

Rogers, J.

At the time of the death'of John Tillará, the debts against his estate were of equal grade, and unless something has occurred since, the plaintiffs and defendant are still ’entitled., in the order of payment, to a pro rata division of the assets. Before the act of 1797, the debts of a deceased person remained a lien, for an indefinite length of time. For remedy of this inconvenience, the legislature enacted, that no such debts, except they be secured by mortgage, judgment, or recognizance, or other record,-shall remain a lien on lands and tenements longer than seven years, unless an action for the recovery, thereof, be commenced and duly prosecuted, &c., within the period of seven yea re. The plaintiffs and defendants duly prosecuted their claims to judgment, within the time proscribed by the act. In that respect, therefore, the condition on which the lien was to remain longer than seven years, was fully complied with. But it is said, that the executors of Ellenberger, having neglected to sue out a scire facias within five years after judgment, have lost their lien. We are of a different opinion. There is nothing in the act of the 4th April, 1798, which warrants the idea, that the legislature intended to interfere with the act of. the preceding year. - It relates to judgments, rendered inter vivos, not to judgments against deceased persons, which continue- the lien created by the death of the intestate; and are governed by the directions of the act of the 4th April, 1797. The law to which we are referred in the preamble of the act of 1798, is, the statute of frauds, of the 21st March, 1772. 4 Dall. 320, Welsh v. Murray. The mischief which it was intended to remedy, was, that after great length of time, purchasers might find it difficult to discover what judgments were outstanding, so as to affect the land they wished to purchase. The lien extending to all the lands of the debtor, no person could know, what part he might safely purchase. Under the act of 1797, the judgment creates no new lien. The law creates the lien on the lands of the decedent according to the order of payment, directed by the act oi 1794. If Ellenberger’s executors would have commenced no suit at all, the lien would have continued seven years; and if suit had been brought immediately before the expiration of the seven years, it would have continued until five years after the judgment. It cannot be a sound construction of the act, which would lead to the result, that the greater the diligence of the party in prosecuting his claim to judgment, the shorter the time the lien continues.

Judgment for the plaintiffs.