author: HustoN, J.

text:
    HOUK against FOLEY for the use of GAULLAGHER.
    IN ERROR.
    The wordsft without defalcation,” in a single bill or note under seal, do not'preclude the obligor from making a defence to a suit brought by the assignee for valuable ■ consideration.
    Every bond or note under seal is liable to investigation as to its truth and fairness in the hands of the assignee or indorsee — the single exception is where the as-signee calls on the obligor who tells him there is no defence, or where the 'obligor induces the assignee to take it.
    An action was instituted in the Common Pleas of Cumberland Bounty, by James G. Foley, for the use of George Gaullagher, ¿gainst Jldam Houk, on the following note under seal, viz:

      Carlisle, 23d Jlugust, 1826.
    • y Three months after date I promise to pay to James G. Foley 6r órder, two hundred dollars lawful money of the United States, without any defalcation, being for value received, as witness my hand and seal.

      Jldam Houk, [seal, j
    Present, W. B. Irvine,.

    . On which there was an indorsement in'blank u James G. Fo~ ley,”

    On the trial of the cause, evidence was given by the defendant to show a partial failure of the consideration for which this note was given; and it was contended, that any defence that would be available against James G. Foley, would be good against his assignee.
    The jury .returned a spécial verdict, as follows:
    “We find the fact, that the consideration of the note has in part failed, so as to reduce the sum really due to theplaintiif to $100,06L That the said note was indorsed in. blank by Jas. G. Foley, and suit thereon was brought and prosecuted for the use of Geo. Gaul-lagher. But being uninformed, whether the said indorsement and the institution and prosecution of the suit in the form aforesaid, defeats the right of the d'efendant to make any defence to the note arising from its failure of consideration, our finding is— that if the defence can be legally made in manner aforesaid, then judgment to he entered for the plaintiff for. $100 6L with six Cents costs, but if such defence cannot be.made in law to any part of the consideration, then judgment to be entered for the plaintiff for the whole amount of the note with interest.
    The Court below gave judgment for $239 00, and .costs..

      Alexander for the plaintiff in error.
    By the act of 1797,section 1, all notes in writing commonly called promissory notes, when drawn “ without defalcation,” .are discharged from defalcation or .set off in the hands of an indorsee; but where a bond or speciality is'assigned, the act of 1715, sec. 8, requires the assignment to -be under hand and seal, before two or more.credible witnesses,,and then the ,3d section of the same act, distinctly recognizes that no more is to be recovered, than at the time of such assignment could have been recovered by the person to whom the same was made payable. This is the case where there is a legal assignment, here the .transfer is .a mere blank in-dorsement. There is no rule of law to prevent .the obligor o.f .a bond or speciality from making a defence against the assignee unless where he has been called on previously to the assignment and has stated that he will pay the amount of such bond or specialty-; but the assignee takes it subject to all .equities; this was settled in Elliott v,. Stanard, 1 Penna, Pep. 24. That the as-signee of a bond takes it at his own peril so as to let in every de-fence that the obligor had against the obligee at the time of the assignment, is also decided in Wheeler v. Hughes, 1 Dallas, 23. Inglis v. Inglis’ executors, 2 Dallas, 49. Bundle v. Ettwein, 2 Yeates, 23. Solomon v.. Kimmel, 5 Bin. 2-32. Bury v. Hartman, 4 Serg. & Baiole, 177.
    The difference between negotiable papers and papers not negotiable is laid down in Wheeler v. Hughes; -and it -will be observed that all the rules that go to exclude a defence from being 6et up against an assignee -apply alone to negotiable paper; this -is not such. Gochenauer v. Cooper, S Serg. & Eawle, 203. Chitty on Bills, 108, chap. 4.
    In Warren v. Lynch, 5 Johnson, 238, the question was whether a note were sealed or not: if sealed, the defence was good; if not the plaintiff could recover- There are rules existing for the benefit of trade, that are .solely applicable to mercantile transactions: therefore when one partner executed a warrant of attorney for both, if was held to be bad, because it was not required by trade: nor is a .seal in the course of trade, Gerard y. Basse, 1 Dallas, 121.

      Gaullagher for defendant in error.
    The cases cited by the plaintiff in error show nothing more than that the assignee of a mere specialty takes it subject to- all the equity between the original parties. But here the special-words in the body of the note give it the character of commercial paper, and are equivalent to an express agreement to that effect-A commercial character may be communicated by agreement of the parties to it, notwithstanding the general law. In Lewis v.-Reeder, 9 Serg. & Raiole, 196, this doctrine is expressly recognized, it is there said it would be extraordinary indeed if there were any act of assembly forbidding the maker of a promissory note to agree that he will pay it without defalcation. Such an agreement makes a note more valuable, because of more easy circulation, and no man has a right to complain of hardship, who is compelled to do no more than he has engaged to do.- Had Gaul-lagher called on Houle, and been informed by him that he had no defence, Houk, as-has been admitted, would have been concluded from setting up one. But there was no necessity for calling on Houk, when Gaullagher had his written agreement to the same purport, which placed him on as good a footing as if Houk had told him in person that he had no defence. The time of the agreement is not material, for the party is benefited by it ; it gives to his paper a circulation and value, which it would not otherwise have.
    In 2 Yeates, 543, Carnes v. Field, the obligor who had bought lands which proved to be of no value was bound, because he agreed when the assignee took the bond, that he had no defence.
    . The words “without defalcation” prevent an inquiry into the original consideration of the note; which was the point decided in Lewis v. Reeder, moreover it would be a fraud in Houk after such agreement to make a defalcation against an innocent ■assignee for full consideration.

      Carothers on the same side.
    The agreement “ without defalcation ” must have some meaning. It is these words which give to'commercial paper its character — they import that the party shall not make a defence going to thé consideration. In the case of Lewis v. Reeder, 9 Serg. fy Rawle, 196, such was the effect given to them by .the decision of the Court. The act of assembly has a reference to commercial notes transferrable at bank in the city of Philadelphia, but this act does hot preclude parties from making an agreement not to de-falk, and this is the view taken by Court in the case just cited. The right to make such agreement is important in many ways; it is the only mode a bond or note can be made available to raise funds. It is no answer to say that if such an agreement is allowed the úntVary might be imposed on, for the same argument would apply to all cases. The question is upon whom is the loss to fall? it ought to fall on Houle, for he agreed to bear it by the very terms of the note.

      Alexander in reply
    When a circumstance of suspicion exists, the effect of the' words “without defalcation ” is avoided. They do not amount to a contract that the defendant will in any event pay the bond he gave, if so he would be estopped from mating defence against the obligor himself. They are words that are used by the great body of our yeomaniy without attaching any definite meaning to1 them.
    In Lewis v. Reeder, the case relied on by the defendant in error, the principles alleged to have been decided there are used arguendo by the Chief Justice, there too it was the case of a promissory note, this is that of a single bill. Even in case of a promissory note if taken after it is due, or if the party have applied for the benefit of the insolvent laws, or if the note is out of the usuaKcqurse of business, there these principles do not apply. Lighty v. Lfaenner, 14 Serg. & Rawle, 133. Now the note ire question being a note under seal is not in the usual course of business.
   The opinion of the Court was delivered by

HustoN, J.

There has been a struggle within the last twenty years to alter the law of this state in an importantparticular. Iallude now to the law prescribed by the act of assembly respecting the assignees of bonds arid notes. The decisions of this Court fori the last seven or eight years might seem to render any further' opinion unnecessary, but as the same thing is brought before us in what is called a new shape, we will consider it. The case of Lewis v. Reeder, 9 Serg. & Rawle, 193, it is said gave rise to the present decision, for rather a dictum in it) and the same has been urged here: that case arose on a promissory — this on a single bill or note sealed. The opinion of the late Chief Justice that if McCullough v. Huston, had been decided ten years later, the decision would have been different, when coupled with the declaration that it is not now to be disturbed seems but a slight ground for taking up the matter at the present day and carrying it beyond what the law or usage of any part of the world ever sanctioned — for I know of no law in which or' by .which a bond or single bill has the same qualities as to negotiability as bills or notes have. I have before said that in the nation most mercantile — in England, it has not been even attempted to give to bonds and single bills the qualities of negotiable paper-It is not necessary here — our legislature has provided dértain modes by which a man who owes a .debt may give an evidence of* that debt, which shall have all the .negotiable qualities of a bill of exchange. If that form is not adopted the evidence of debt cannot have those qualities by the express law of the land. If the Courts had the power of altering this, there iSa great objection to it. If the legislature make a change' it affects all evidences of debt drawn aftei the passage of the law. If the Court make it*1 it retrospects and affects all those already in existence.

Perhaps out of a million and a half of inhabitants of Pennsylvania, two hundred thousand (and this is a large allowance) may have drawn a paper in the mercantile form, and with the intention that it would or might be indorsed, and be collectable without regard to the state of accounts between the original payor and payee.' The residue of the people never drew or saw such a paper — these last know from their youth that a note or bond is only evidence of a debt, of its amount and the time bf payment — and they also know that before the day of payment, or rather before actual payment; a defence from fraud or want of consideration, can be made to the debt secured by bond or note, precisely as it Can to a debt proved by parol, and further that if there has been fraud or imposition the matter is as open to inquiry as if sued by the original obligee-.

• Our law has then distinctly settled that a promissory note drawn at a certain place, and in a certain manner, or drawn at any place with a view to be used as negotiable paper-, and put into a bank¿ Shall have the effect intended by the parties. It is also settled that specialities or evidences under seal have in case of the obli-gor’s dying insolvent, preference before promissory notes. The two are in-other respects essentially different, and we cannot, and for myself, I would not if Í could, abolish the distinction»

I have said mercantile policy does' not require that bonds and notes ihdorsed should have the qualities of mercantile paper. There are reasons, why the law as to bonds and notes not mercan*■ tile should continue as heretofore. If every one who has imposed on another in a cpntract and got a note under seal could obtain the effect of his fraud or villainy by assigning his note, it would neither promote the character of our judiciaí system, nor the morality of our citizens.

The case in 13 Serg. & Rawle, 317, was an attempt to turn a note exactly like this into a mercantile note, by a blank indorsement-. — and to follow that up by'holding the in'’orse| liable as on a bill of exchange — but if did not succeed. The assignor of a bond indorsed or not indorsed, has not \ m been he^d liable directly in a suit on the assignment; but on mercantile paper, the indorser, where diligence has been used, is always liable on the indorsement. If the obligor can be made liable at all events to-an assignee, it must follow that the other incident of mercantile paper goes along, and the assignor must be liable'directly on hie assignment. ,

The argument that the party may sign a note without defalcation, and thus preclude himself from a defence, presumes too much, and not enough:

First, if it avails at all, it will in its terms preclude a defence to* a-suit by the obligee, as much as by the assignee.

Next, if it avails, then a bill to pay $100>m 1-0 days, and in-case of failure to pay $200, would enable the holder to recover $200 on the eleventh day — and a mortgage might be drawn not" redeemable after a certain day, though the transaction was for a loan of money and security for it at first. Now-none of these- . will be pretended, no device or ingenuity of man has been able' to give such form to any instrument for securing money, as that some Court has-not ■ existed or grown up which- would relieve-from fraud, oppression and extortion. Chancery power began and grew on this, it was the- rock on which its present enormous-power was built, — I omit gaming, and usury, &c. all of which might be protected on this plan;. — but the argument does not ■ prove enough. Defalcation issetting off another account or another contract — perhaps total want of consideration founded on fraud, imposition, and falsehood, is- not defalcationthough beihg.' relieved in the same-way they are-blended. Mercantile transactions require honesty — are based on good faith — they never cari-be promoted by giving sanction and validity to what is-not fair, what is founded on deception.

Our law however has-provided different securities for debt, and-has given different qualities, advantages and disadvantages to each: the criterion necessary to be mentioned in this case is, that the paper is a bond,- it has a seal, and every paper so drawn is-liable to investigation- as to its truth andfairness in the hands of the-assignee or indorsee, it depends on the seal and the act of assembly, and the single exception is where before taking the paper the-assignee calls on the obligor and he tells him there is no defence; or where the obligor induces the assignee to take it.

Judgment of the Court below reversed and judgment entered-for plaintiff for- $100.06^.-


source: Caselaw Access Project

author: GibsoN, C. J.

license: Public Domain

text:
    CRIST and HALDEMAN against MATHIAS GARNER and SUSANNA BRINDLE, executors of BRINDLE.
    IN ERROR.
    *C built for B a house, in the summer of 1813, and afterwards, on the 9th October^ 1813, they entered into articles of agreement, by which B covenanted to convey •toC, the,land on which the house had been built, for £3,000: £2,000 to be paid about the.middle of May then next, and£l<>0 on the 20th May in every year, until the whole purchase money should be pa’d. B died in the spring of 1814, not having executed a deed, but by his will, he directed the contract to be carried into execution by his executors. G and W, his widow, the executors of his will, on the 7th of June, 1814, executed a deed to C, and signed a receipt thereon for the consideration of £3000, and took from.C and M a bond for £1812, payable on the 20th June, 1814, which was subsequently paid, and ten bond., for £100 each, payable according to the contract. It did not appear how the tlifr ference between £1812, and £2000, the hand money, had been paid. When the first bond became due, in 1815, G, the executor, presented it for payment, C then claimed to setoff his account for building the house, and G told him to prove it, and postpone the set-off till the next bond should become due. In 1817, G sent two bonds due in 1816 and 1817, by E to C ; C then claimed his ■set-off, E took the account, and put a receipt on the bond of 1817, for the money •paid, and this account “ which if accepted by G and W will be in full.” Suit was brought by the executors on the bond of 1817, rejecting the set-off, to August term, 1818, in this suit O claimed his set-off. This suit in 1823 was reached .for -trial, when the attorney of the defendants not being ready to meet the demand, confessed judgment; at the time, or immediately after judgment •was confessed, P, the attorney of the executors said there was another bond, which would fall due in 1824, and if C had a just account he would have an opportunity of making his defence on the other bond. Phadnotthe bond of 1824 then in his possession, hut he as attorney of the exeoutors brought suit upon it to August term, 1824. Held: in that suit, that the account of C which was claimed as a set-off was barred by the statute of limitations.
    'The desire of one of tile plaintiffs, in 1815, that the set-off should he postponed till the next bond became due in 1S16, would at the utmost, suspend the statute, if at all, only for a year.
    5E, the plaintiff’s agent, having no authority to allow the set-off made no promise which they .were .bound to disavow, and his act was therefore without consequences.
    A legal presumption arose in the absence-of proof of how the difference between the amount of the judgment bond for £1,812, and £2,000, the amount of the hand money had been paid, that.the set-off of C had been settled in the.payme.nt of that sum.
    Error to the Court of Common Pleas of Cumberland county.
    In that Court it was an action of debt brought to August terms 1824, by the defendants in error against the plaintiffs in error, on a bond, dated 1th June, 1814, given by the latter to the former, naming them executors of Henry Brindle, conditioned to pay ¿6100 on the 20th May, 1824. The defendants pleaded payment with leave, and set-off, to which the plaintiffs replied non solvit¿ and that the set-off was barred by the statute of limitations, on which issue was joined. The defendants claimed a set-off amounting to the sum of $161, of an.account which Crist, one of them, had against- Brindle, the testator, for- building on his land in the sum-* mer of 1813, a small house, or office.
    It was proved that Crist built the office for Brindle, and that afterwards, on the 9th October, 1813, they entered into articles of agreement for the sale of this land (on which it was built) by the latter, to the former, for £3000, £2000 to be paid about the middle of May then next, and £100 on the 2Oth May in every year- until the whole purchase money should be paid, Brindle died in the spring of 1814, without having executed a deed for the land sold to Crist, but by his will he recited the contract, which had been made, and authorized his executors to carry it into effect. On the 7th June, 1814, these executors, the plaintiffs, executed a deed to Crist, at the foot of which they signed a receipt for the consideration £3000. The bond on which this suit was brought was one of the bonds which was given to secure-the gales, or instalments of the purchase money, according to the article' of agreement, It was shewn that John Crist and Jacob M. Haldeman, the defendants, had given a judgment bond of the samé date with that in suit, (7th June, 1814,) to the plain tiffs, conditioned to pay £1812 on the ,20th June, 1814, which had been entered of record, and paid, after execution was issued upon it. It was in proof that on the 20th October, 1814, Crist sold to Haldeman part of the land bought by him of Brindle, for £4,000, and some evidence wás given to shew, that he had undertaken to pay the hand money to Brindle, but no other testimony was given as to the payment of the difference between the amount of the judgment bond £1812 and the hand money stipulated by the article £2000. Brindle died on the property, and his widow, the executrix continued to live there iii 1815, when Garner, the executor, who lived in Huntingdon county, came to get the . money due on the first bond. Crist then presented his account to Garner, who said, “he ought to prove it, and that he should postpone his off-set, till the next bond became due. as the executors then wanted money.” Garner did not come to, receive the amount of the second bond which fell due in 1816, but in 1817-he sent two bonds by one Bntri&en, who presented them for payment. Crist paid part of the amount in money, and claimed credit for- his account: this Entrihen said he had no authority to give, but he received the account from Crist, and made the following indorsement on the bond for £100 due the 20th May, 1817:
    ‘f 6th 'June, l§17, received of John Crist, one hundred and jjye dolors and seven cents, in part of the bond, and Mr. Crist’s
      proven account for one hundred and sixty-one dollars and sixty cents, which he claims a credit on this bond for, which if accepted by Garner and Brindle will be in full.”
    “JAMES ENTRIKEN.”
    There was also indorsed on this bond “To James Entriken,” “ Mathias Garner.”
    To August term 1818, the plaintiffs brought suit against the defendants, to recover the amount of .this bond, rejecting the credit of the proven account, and also the bond which fell due on the 82d of May, 1818. The defendants appeared to this suit, and put in a plea; and on the “18lh September, 1S23,” (as appeared by the record) “the cause being ordered for trial, defendant not appearing, judgment is confessed by defendant’s attorney according to the statement filed.”
    Mr. Ramsay, who was counsel of the defendants in this case, stated that the defendants claimed the set-off; but when the cause was ordered on, there was no witness then in court.to substantiate it, when Mr. Parker, the counsel of the plaintiff, said, if you have a just defence, you can get it allowed on the last bond. Mr. Parker swore, that Mr. Ramsay said that Crist had told him of an account he had against Brindle, and asked if there were any more bonds due; that he told him he believed there was one, which would be due in 1824; (that he had not that bond in his hands at that time, nor until he brought the suit upon it;) that he then said, if Crist had an account, and it was a just one, he would have an Opportunity of making his defence on the other bond; and that this conversation topk place after judgment was confessed by Mr. Ramsay.
    The counsel for the defendants requested the court to charge the jury—
    1st. That if the jury believe, from the evidence, that John Crist in the life time of Henry Brindle, furnished lumber and materials to the said Brindle, to put up a house on the land of the said Henry, and that the said Crist put up a hoiise for the said Henry, on the said land, and furnished to the said Henry articles of value for himself and family, in all amounting to the sum of $161 61, that then, and in that case, the said Henry became, and was liable to pay the said John Crist the full value of the said lumber, materials, work, labor, and articles.
    2d.' That if the jury believe, that afterwards, the said Henry Brindle entered into an article, to sell the said land to the said Crist, for the full value thereof, such-articles of agreement would be no discharge of the liability of Brindle to pay said amount, gnd it would be a good set-off in this suit,

      3d, That if the jury believe the facts in the two foregoing points, and that the bonds for the purchase money and hand money, were not excuted to Brindle, but his executors, that such execution of these bonds would not discharge the liability of the estate of Brindle to pay the said account to John Crist..
    4th. That if the jury believe that John Crist presented the said account to the executor of the said Brindle, when he called on him to pay the first bond, and that the said executor then said he wanted the full amount of that bond, but that Crist should prove the said account, and that it should be a set-off to the next bond, or that Crist should postpone the set-off to the next bond., and get it proved, and that the said set-off was indorsed on the said bond, conditionally, on the 6th June, 1817, and that when that case came on to be tried in September., 1823, Mr. Parker, the attorney of the plaintiff, said, that if Crist could prove his' set,off, he-should have it in the suit on the last bond — which is1 the suit now trying. That if they believe these facts, then the said set-off is not barred by the statute of limitations, and the defendant, John Crist, is entitled to have it allowed in this suit.
    The Court charged the jury
    In the affirmative of the defendants’ first and second points, and in the affirmative of the third point, “if the jury are satisfied that the set-off was not then made, and deducted, or was not made af-terwards, when the bonds became due, and deducted when payment thereof was made. And in answer to the. defendant’s fourth point, the Court charged, that the facts as stated in this point, if proved, would prevent the statute of limitations from barring the right of defendants to their set-off. If, under such allegation, the plaintiffs derived any benefit, or the defendants suffered any disadvantages thereby.”
    “This presents one side of the controversy; there are a variety of facts on the other side worthy of your consideration.

      Crist, it is said, obtained a stand upon the property for his board-yard in 1813, before he agreed to purchase. In the fall of the same year, on 9th October, 1813, Crist, by articles of agreement, contracted to purchase the land for $8000. In the spring of 1814, £2000, or $5333, 33 hand money, was due and payable; for $4833 33 a judgment bond was given, entered up, and to August term, 1815, execution issued, and the money was collected. Rut this was not all the hand money — the judgment was for $4-833,33; the hand money was $5333 33 — consequently $500 must have been paid in some other way. I know of no proof hów Mr. Crist paid the sum of$500, the balance of the hand money; whether to Ilcnry Brindle, in his-life time, or his executors. Now if Brin die, or his executors,, were indebted to Crist, for building this house, and some other items, to the amount of $161, and Crist was indebted to Brindle’s executors in this sum of $500, and if there is no proof how this was settled, the presumption of law, under such circumstances, is, that in paying the $500, a credit would be taken on any sum due to the payor from the payee. When two men have mutual accounts and mutual claims upon each other, and a settlement or payment is alleged- by one to the other, and there is no proof how or when, the law' presumes the elaims, on both sides, are settled.
    There is another point of view in which the case presents itself: — suppose all the hand money was paid, and 1 think Mr. Crist says Mr. Haldeman advanced the money to pay part of the amount for which the judgment was taken; suppose the whole was paid — still there were bonds of £100, $266 67 due annually from the spring of 1815, inclusive, up to 1824, inclusive. Of these bonds three had been paid; a part of one to Entriken, and the balance of that bond and two others, in a suit to August term, 1818; deducting these three bonds from the ten bonds, leaves-$1833. How was this paid? Was this all paid amicably, without suggesting the existence of this set-off? The proof is, that Mr. Haldeman paid apart — perhaps $4000. But if he paid this, he could not, under his purchase, have paid the hand money; and if he paid the hand money, he could not have paid this; for the two would be beyond the amount of his purchase.
    We have said that the act of limitations would not bar the set-off under the facts, as stated by the defendant’s counsel. The evidence, as it struck my mind, did not go so far. The mere incidental remark of Mr. Parker, attorney in the former cause, when he was not counsel, as he stated, at the time, in this; and was not in possession of the bond till long afterwards — I say the incidental expression of Mr. Parker, when the former cause was ordered on — Mr Ramsey not ready-having no evidence, and no client here, and judgment entered, having no cause to urge for a continuance — I say, an expression of Mr. Parker, that if there existed any good set-off, it could be made out of the remaining bond; such a declaration would not prevent the statute of limitation from barring the right to set-off. The receipt of Entriken contains no-promise or acknowledgment, such as would revive a claim, barred by the statute of limitations. Supposing, the allegation of the executor of Brindle, was such as to prevent, at that time, the operation of the statute of limitations,If six years after that elapsed, before the bond in question was due, or payable, and no admission or promise has been made since 1815 or ’16, then the law would bar the right of the defendant to his set-off, and the plaintiff’s claim woujd be left in full force, for the whole amount.

      If Mr. Ramsey, as counsel for Crist, was put off bis guard,/ Was induced to assent to the judgment in the former suit, by the' declaration of Mr. Parker, that the alleged set-off should be tried upon the next bond, (upon this bond) and the plaintiffs thereby obtained an advantage, the plaintiffs Would be bound by such declaration; but the mere casual remark of the counsel of a party, in reference to some other matter of his client, in which he was not concerned as counsel, and-not nroducing any advantage at the time, nor disadvantage to his adversary,- is not such a promise a,5 prevents the operation of the statute of limitations.
    The suit was not brought-until 1824, ten years after' the claim' of the defendant occurred; bonds becoming due year after year, defendants sued, judgments had, executions issued' against them-,
    c. and no'defence till in this suit.-”
    This charge was excepted to by the' defendants, and a verdict being rendered in favor of the plaintiffs, the defendants brought this writ of error, to reverse the judgment entered upon it, and now assigned for error:
    . 1st. The Court erred in the answer given ter the fourth point, put by the defendant’s counsel.;
    2d. In charging the jury that there was a presumption of law, under the circumstances stated by the court, that the set-off claimed by the defendant, had been paid or settled.
    3d. In charging the jury,- that where two men have mutual ac-' counts and mutual claims upon each other, and a settlement or payment is alleged by one to the other, and there is no proof how or when, the lawpresumes that the claims on both sides are settled.
    4th. In charging the jury, that the defendant’s set off, under the circumstances, was barred by the statute of limitations.
    5th. In charging the. jury, that the receipt of Entrikin contains-no promise or acknowledgment, such as would revive a claim barred by the statute. Supposing the allegation of the executor of Brindle, in 1815, was such as to prevent, at that time, the opera--tions of the statute of limitations — if six years after that elapsed, before the bond now in question was due or payable,, and no admission or promise has been made since 1815 or ’16, then the law would be left in full force, to its whole amount,

      Perirose for the plaintiff in error.
    1. Tho Court erred in charging the jury that a legal presumption arose, that the set-off, claimed by the defendants, had been settled and paid, either in the difference between ¿(22 0 00, the hand money, and the sum of ¡¡21812, a part of the hand money, for' which a bond had been taken by the defendants; or in the pay-* thent of the bonds which fell due, annually, from. 1815 to 1824 inclusive.
    1st. There was no presumption of such settlement or payment from the facts of the case; which, if properly understood, repelled 'such presumption.
    2d. If the evidence juátified any presumption of payment, it was a presumption of fact, to be weighed by the jury, ánd not a preSumption of law, binding and conclusive upon them.
    1st. The faets proved did not warrant such presumption, but repelled it.
    It_will be recollected that Brindle died in the spring of 1814, Without having executed the contract, contained in the articles of agreement, for the sale of the land; entered into on the 9th October, 1S13, between himself and Crist, and that in his will, which is dated on the 15th December, 1813, he recited that he had “lately made an agreement to sell to John Grist his present dwelling plantation,” and authorized his executors to “make a lawful conveyance for the same.” These executors, and one of them his widow, and, of course, well acquainted with his business, on the 7th of June, 1814, in pursuance of the power given them by the will, executed a deed to Grist for the land, putting at the foot of it a receipt in full for the purchase money, and took from Crist his bonds on account of the purchase money. One of them for £1812, payable on the 20!h June, 1814, and the rest for £100 each, payable annually, from 1S15 to 1824 inclusive. The hand mone}*' was £2000; the bond taken for part of the hand money, was but for £1812,'and the Court charged the jury that there was a legdl presumption that Crist’s account against Brindle, Which was due in the summer of 1813, was settled, and paid in the difference between these two sums. The evidence warrants the assertion, either that the difference was paid to Brindle, in his life time, or to the executors after his death.
    But'these executors gave a receipt in full for the whole purchase money,-which would make them liable prima facie for the whole amount. Then, as this was the case, if the difference were paid to Brindle, they must, at the time they executed this deed and receipt, have been informed precisely hpw the difference was paid, and had some evidence to guard themselves against the responsibility created by the receipt for the whole purchase money on the deed. If then the claim of Crist had been settled with Brindle, in his life time, arid this was the reason they took the bond for less than £2000, the hand money, it is manifest, not only that the executors had evidence of this claim put into their possession, at ;lnt time, but at all events that they Were then informed of the fact, that this claim had b,een settled and paid, if such were the fact. If that difference were paid to the executors themselves, it is plain that if Crist’s account had been paid or settled in it, they knew tlie fact when the deed and bond for the balance of the hand’mo-riey were given. A little attention to dates will show the error into which the Court fell. It will be recollected, that this deed and these bonds were executed on the 7th of June, I8I'4;; then the' Court said a legal presumption arose, that the claim of the defendants was settled and paid; but in one year after, in 1815, Garner, one of these very executors, who executed this deed, and received these bonds, and who it is shown must have known- the” fact, if this claim had been settled and paid, presented for payment one of the bonds, given on the day when all these bonds' were given, and then Crist demanded a credit for his account,, and Garner recognized it, told him to prove it, and postpone his set off till the next bond become due. Certain it is, that Garner‘ would not, in 1815, admit this claim against the estate which he represented, if he had settled and paid it the year bcforej when-he took the bond for the hand' money, or if, at that time, he had' been informed’that it had been’settled and paid by Brindle, in his life time.
    The argument, by a reference to these dates and circumstances, on this point Is conclusive. The Court were equally unfortunate in suggesting that there was a presumption, that if this claim had not been settled and paid in the hand money, it had in the payment of the bonds which fell due annually from 1815'to 1824.
    These bonds were given to the executors themselves, who were Compelled to account to the estate which they represented for the ■amount.. If, instead of receiving money for any one of these bonds, the executors had taken from Crist his proven account against the estate, most assuredly" they would have required,, that he should give them the account with the receipt upon it, asa voucher,. which they would have carefully preserved, to exonerate them'from their liability to account for the full amount of the bond.
    But again. — When the bond of 1815’, the first bond'for an annual' instalment fell due,, it was presented b.y Garner^and paid in-full; for Garner' then requested Crist to postpone the set-off till' the next bond become due. Garner resided at a distance, and did not come in'1816' to obtain payment of the next bond, but he-waited until 1817, and then he sent the bonds of 1816 and 181T by Entriken, who indorsed on the bond ®f T817 a receipt for this very account, “which, if accepted by the executors, was to-be in full.
    The executors, rejecting the credit, brought suit on this bond -of 1817, and that of 1818’, to August term, 1818; and Crist appeared to that suit and claimed this set-off there; and it was riot an til the 18 th September, 1-823, when judgment went against him in that suit, that his set-off was thrown off the bond of 1817, where, up to that time, he had been insisting it was properly placed; and at that time it was proved by the counsel of the plaintiff himself, there was but one bond, that of 1824, now in suit, .outstanding and unpaid. p-

      It is plain then it was not paid in the bond of 1815, 1816,1817 .•and 1818, as all these ‘bonds are accounted for, and it was not paid in any of the subsequent bonds, as it was'in suit on the bond of *1817, until all the other bonds .were paid, .except the bond of .'1*824, .which is now in suit
    The facts then repel all presumption of payment; and the next Inquiry is, whether the'Court did not err in charging the jury, that a legal presumption of payment arose .in such a ease.
    2d. If ihe.'evidenee authorizes any presumption.at all, it was a ■pcesumpti.on of fact, to be weighed by the jury, and not a presumption of law, binding and conclusive upon them.
    A legal pi'esumption is a binding presumption; one which leaves no discretion to the jury, but is absolutely controlling upon them, as a flat legal,bar. Miller v. ScMosser, executors, 3 Serg. Sá-llatele, 490. Such is the presumption of death, from the absence of an individual, for a «given period. '
    The enjoyment -of water, in any particular way, for a certain •period, affords-conclusive presumption of right'in the party so enjoying it. ■£trickier v. Todd, 10 Serg. & Rawle, 69.
    So what circumstances will justify the presumption of a deed is matter ef law, and it is the duty of the Court to give an opinion, whether the facts proved will justify the presumption. Sto-.cver v. Whitman, 6 .Sin, 4.16..
    Where too the legal ¡presumption of payment arises, the Court .ought not to submit the question to the jury, as open for their belief, as to the actual payment. Henderson v. Lewis, 9 Serg. & Rawle, 379 — Cope v. Humphreys, 14 Serg. & Rawle, 15. Such presumption of law is as much a flat bar, as the statute of .limitations.
    To charge «the jury then, in a case where the facts repelled all presumption, that a legal presumption of payment arose, was, to •say the least of it, .to lead them to suppose that material points, which were matters of fact, were matters of law., -which they had no right to consider. And this is error. Work et ah v. Ml Clay., ■2 Serg. .& Rawle,415. Hers'hey m. Hershey, 8 'Serg. & Raivle, .333.
    As to the statute of limitations, he contended, that the court err•ed in applying it to .this case., That although the declaration of fhe executor, Garner, in .1815, as. to the postponement of the set-off, the conditional receipt of Entriken, on the bond of 1817, and •the remark madebyJMr. Parker, on the confession of judgment in 1823, taken separately, might not avoid the bar of the statute, yet,' when considered together, these circumstances did avoid it.

      Garner’s request to postpone the set-off till the next bond came due in 1816, suspended the operation of the statute until that time, Hi§ npt presenting that bond himself, but employing another to do it, in 1817, was a fraud on his part, which the defend dant did not then discover, as the person employed did receive the account, and indorse on the bond of 1817 a conditional credit. To avoid the operation of this, he should have disavowed it, and given notice of his disavowal to Grist. Breden y. Buharry, 14 Serg. & Rawle, 47.
    The executors sued the bond of 1817 to August term, ISIS. If this be considered as a notice that they disaffirmed the act of En-iriken, and determined not to adhere to the promise of Garner, it was then only that Crist had notice of the fraud of Garner, jn not allowing the credit which he claimed. And no principle is better established than that where there is fraud, the statute will not'be allowed to run to protect the party who commits it, but from the time the fraud is discovered. Jones y, Conway, 4 Yeates, 109. This throws out of the computation all the period up to the year 1818, and from that time up to 1824, when suit was brought, six years had not elapsed,
    Again, where the right to sue is suspended, the statute of limitations does not run. Dougherty v. Snyder, 15 Serg. & Rawle, 84, Now, when the executors brought suit on the bond of 1817, Crist appeared to that suit, and there insisted upon his set-off, until the executors fraudulently threw it out. It was then in suit up to 1823, when this occurred. This, taken with the other circumstances, would avoid the statute of limitations. This view derives force from the manner in which it was thrown out by the GQunsel of the executors.
    Besides, he suggested that the statute should not be applied to, a case like this, when there are mutual demands among the parties,, and one has the advantage of having his demand evidenced in such a way, that the statute cannot affect it. To permit the statute to bar the claim of the other, will be to promote fraud.

      Carothers for the defendant in error
    Argued that if there had been any settlement with the execu-tprs, by which they would be informed of the facts in reference to this claim, it should have been proved by the defendants. As the- plaintiffs rested their claim upon a bond, which was not disputed, the onus of the defence was upon the defendants, who Were bound tq make out every fact, upon which they relied, affirmatively. ■ When the Cqurt charged the jury that a legal presumption of payment arose, they did npt take the facts from the Jury, but oply instructed them, that in law, they had the right to make the inference of payment from the facts proved. The Court gave one view of the facts, and instructed the jury that in that view they were favourable to the defendants, but they also presented another view which was decidedly against the defendants, leaving it to the jury to select the view which might be most ponsonant to the testimony. In this latter view, the fact that $500 of the hand money was paid, and that the defendants had not shown how, and the fact that so many bonds were paid, in the absence of other proof, certain! .■ justified, in law, the presumption that the cross demand of the defendants had been settled and paid.
    The statute of limitations was enacted to guard against the loss of papers, and other evidence of the payment of debts, and is most appropriately applied to such a case as this; where executors should not be required to preserve papéis, and the evidence .of payment for an indefinite time. The burden of proof did lay upon the defendants. The evidence to avoid the bar was strongly put by the Court to the jury, and it was not error to present to the jury the evidence which the plaintiffs relied on to sustain it.
    The declaration of Garner that the set-off should be postponed until 1816, made it due at that time, and the lapse of six years after that time barred the claim.
    And besides this, when in 1818, suit was brought on the bond of 1817, the executors, by that suit, gave the defendants notice that they would not allow this claim. And it was incumbent on them to bring suit on it, to preserve it from the statute, which they might have done, or to attend to it, that it might be tried in that suit. The mere incidental remark of Mr. Parker was properly put to the jury, as in no way affecting-the rights of the plaintiffs.
   The opinion of the Court was delivered by

GibsoN, C. J.

The account which is the subject of cross de mand, was . presented to the plaintiffs in 1815, who desired it to be postponed till the next bond should become due, in 1S16, and ■to be proven in the mean time. This would, at the utmost, suspend the statute, if at all, only for a year; which would still leave too great an interval. In 1817 it was again presented, but to the plaintiff’s agent, who, having no authority to allow it, barely promised to submit it to the plaintiffs. He made no promise which they were bound to disavow, and his act is therefore without consequences, Lastly in 1823, when an action on one of the bonds was ordered for trial, under circumstances that put the defendants at the plaintiffs’ mercy, Mr. Parker, their attorney, replied to a suggestion of set-off from the other side, that there ■would be an opportunity to set it off against the succeeding bond. As to this, it seems to me, the Court put the point on the true ground. Nothing like trick or imposition is pretended ; and granting that Mr. Parker’s clients would have been bound by his agreement if made on .sufficient .consideration, yet his suggestion neitherbenefitted them, nor prejudiced .the defendants who have not been induced by it, to forego any advantage of which they might have availed themselves. A promise to pay a debt barred by the statute, is sufficient to revive it, because it rests on a moral obligation'; but the debtor’s attorney has no authority to bind himself by such a promise, because it is not within the scope of his business. Beside, there was no promise but to afford an opportunity to give the benefit of the set-off for whatever it should 'be worth-: certainly not to waive the bar of the statute which was then complete.

The remaining point is quite as simple. By the terms of the original contract, the defendants were to pay a sum in hand, for part of which they subsequently .gave a bond and warrant, which has been entered up and the money collected. How the difference was paid, does not appear; and as the set-off was .then .an existing demand, the jury were directed that a legal presumption arose of its having been settled 'in that transaction. The defendants object that it ought to have been left to the jury as mere presumptive evidence of the fact. But was it not so left? Mr.. Starkie, who has treated the subject of presumptions .in a masterly manner, (part iv. 1235,) divides them into legal, -or such as derive from the law, an artificial effeet, beyond their ordinary tendency to produce belief; and NATURAL, or sueh as act only by their proper efficacy, The Court here put the presumption to the jury, ás of the first class. But legal presumptions are again divided into such as are immediate, or conclusions which the law itself makes without the aid of a jury ; and mediate, or such as the law makes, but through the medium of a jury. Of the last kind is the presumption of payment from the lapse of twenty years, which is only evidence of the faet, but evidence from which, when not rebutted, the jury is bound to draw a conclusion which cannot be drawn from it by the Court, when presented as a circumstance specially found, or pleaded. Starkie, p. iv. 1240. All presumptions which are attended with peculiar consequences, are of this sort, and the instances of them given in all the books, approach pretty near to the case at bar. Such is the presumption in the ease of |ent, from a receipt for rent subsequently due. The presumption of payment may arise, also, from the particular habit and course of dealing between the parties; and it ought equally to arise from the habitual course of transactions among all men, fm .which it is extremely .unusual for creditors to pay money ,tp their debtors. The presumption, here, was therefore not merely a natural one: it was attended with the peculiar consequence oif easting the burden of proof on the other- side, and was in th& words of the Court, a legal presumption.

Judgment affirmed.


author: Huston, J.

text:
    HERRON against FRY.
    IN ERROR.
    H rented a farm from S, and being in arrear for rent, his personal property, consisting1 of his stock, farming utensils, &c., was sold on a landlord’s warrant, and bought by F, his brother-in-law, who lived at some distance, and left it in H’s possession; F executed to S a note for the rent of the farm on which .H then lived, for the ensuing year, and on the same day, he and H entered into a written agreement, by which H was to work on the farm rented from S to F for one year,, at $5 per month: and F was to furnish all farming implements, and horses, cows, and every utensil that is necessary to enable H to work said farm. Afterwards H, being indebted to F in a note, sold F wheat which was growing on this farm, before this agreement, and which was not sold on the landlord’s warrant, and a receipt was executed for the amount, and H went with F alone, and shewed it to him; H continued to live on the farm with the same stock, and under an agreement for that purpose, he cut the wheat and stacked it on the farm, where it was levied on about a month after, and sold by a constable upon an execution against H, as his property, to N. In a suit brought by F against N, held that it was not error to charge the jury that if the transactions between H and F were bona fide, and the possession of the wheat was actually transferred by H toF, F was entitled to recover.
    If in truth H was fairly employed and paid by the month by F, F was as much in possession by H as his servant, as if a stranger had'been employed by him.
    Whether the possession always remained in li or was at once transferred to F, andwas ever after in him, depended on whether he was really the tenant of S, and H was really the hireling, and this was a question for the jury.
    If the cause be fairly put to the jury on the matter of fact and the law arising upon them, no more can be required of a judge.
    Error to. the Common Pleas of Franklin county.
    This was an action of replevin brought by Fry, the plaintiff below and the defendant in error, against Herron, the plaintiff in error, for a stack of wheat, which Fry claimed under parol sale from one HisJeey. Herron claimed the wheat upon a sale made by a constable to him, on an execution against HisJeey.

    On the trial of the cause in the Common Pleas, defendant gave the executions in evidence, and proved the sale under them about the last of August, or the 1st September, 1828, io him.

      ít appeared that the wheat had grown on a farm which one Stewart had leased for one year, commencing on the 1st of April, 1827, to Hiskey, who had sown and cultivated the same, that on .the 15th March, 1828, the personal property of Hiskey, consisting of horses, cattle, and farming utensils, used by him on the farm he had rented, and except the grain in the ground, was sold on a landlord’s warrant, issued by Stewart, and bought by Fry. And that this property, after the sale, continued in the possession of Hiskey.

      Fry, who was the brother-in-law of Hiskey, lived in Cumberland county, at the distance of seven miles from the farm which the latter had rented from Stewart, and on which Hiskey continued to reside until after the sale to the plaintiff.
    The plaintiff alleged that he was the surety of Hiskey to Dr* Stewart, and gave in evidence the following papers.
    “On the first day of April, in the year of our Loid, one thou-a nd eight hundred and twenty-nine, I promise to pay, or cause' to be paid, unto Doctor Alexander Stewart, his heirs or assigns, the just and full sum of one hundred dollars, lawful money of the United States, being for the rent of his farm, in Northampton township, Franklin county, whereon Peter Hiskey now lives, for the year commencing on the first day of April, 1828, and ending on the last day of March, 1829. Witness my hand and seal, the fifteenth day of March, A. D. 1828.

      John Fry, [seal.]
    Witness present, Joseph Fry.

      “ Memorandum of an agreement made, concluded and agreed Upon, the fifteenth day of March, in the year of our Lord one thousand eight h<m ’red a-..; ¡.wuiity-eight, by and between John Fry', of the township of Newton, in the county of Cumberland,- and state of Pennsylvania, of the one part and Peter HMcey, of the township of Southampton, in the county of Franklin and state aforesaid, of the other part, that the said Peter Hiskey doth agree to work for the said John Fry for five dollars per month, for one whole year, commencing on the first day of April next ensuing this date — he the said Peter Hiskey, is to work on the farm that he now lives on, belonging to Doctor Alexander Stewart, in Southampton township, Franklin county. The said John Fry is to furnish the said Peter Hiskey with all farming implements, and horses, and cows, and every thing that is necessary for to enable the said Hiskey to work said farm, and to pay the said Hiskey for his labour five dollars every month through the whole year*. Witness our hands and seals the day and year first aboye written.

      John Fry, [seal.] his

      Peter x Hiskey, [seal;] , mark
    Witness present)

      •Alexander Stewart¡

      Joseph Fry.

    He shewed also, that on the 8th November, 1828, Stewart exé-* euted a lease to him for the samé farm, for the year commencing the 1st April, 1829; and he proved by Hiskey that he,- after the agreement of the 5th March, 1828, worked the farm' for Fry for $5 per month, the sum agreed on.
    It was also in evidence On the part of the plaintiff that Hiskey was in his debt on a note which had been given several years before. ‘
    ' He proved that on the 17th March, 1828, he went with Hiskey to the house of George Johnston, a justice of the peace, and there Hiskey gave a receipt to Fry, for #143, for 28 acres of Wheat, and 23 acres of rye; for Which Hiskey owed Fry, who gave up to Hiskey the note he held on him. And it was remarked at the time that they wanted to secure the grain so that other creditors should not sell it again.
    The wheat was in the ground, and the plaintiff proved by His-key that On the morning after the sale of the wheat to him, Hiskey went with him to the field where the grain was growing “ and shewed it to him and gave it up to him,” he said also “I gave him possession of the land and all I had* and worked at $5 per month.” It did not appear that any other person was present when this was done.
    In June following Fry agreed to pay Hiskey #50 to cut and haul in the grain. They called a witness to be present at this bargain. Hiskey did cut the grain, and stacked it on the farm, which he still occupied, and farmed with the same horses, iwith the exception of a horse which Fry had bought, and put on the farm,’ the same stock, and the same farming utensils, when the-constable sold the stack of wheat to the defendant.
    Other evidence was given which it is not material here to state.
    The defendant’s counsel requested the Court to charge the jury:

      l. That the alleged transfer from Peter Hiskey to John Fty
      was fraudulent and void against, creditors, possession’not having been delivered at the time of said contract.
    2. That jP, Hiskey having remained in actual’possession of the wheat sold, and having continued to farm the land on which it was raised and stacked, the single bill of Dr. Stewart from John Fry, and the agreement between John Fry and Peter Hiskey, do' not in law vest the possession in John Fry.

    S. That the single bill of J. Fry to Dr.- JL. Stewart, of the 15th March, 182S, does not make J. Fry the tenant of Dr. Stewart, but was a mere security for the rent to become due from Hiskey to Stewart, under the article of 25th December, 1826,< continued for the second year from April,-. 1828, to April 1829.
    The Court, Thompson, President, charged the jury as follows6
    The property in question, it appears, belonged to Hiskey. The defendant claims it by virtue of a constable’s sale, which took place on several executions against Hiskey, in the latter part of August,-1828: The plaintiff claims it by virtue of a private sale to him by Hiskey himself, on the F7th March, 1828, while the grain was in the ground. The sale of the 17th of March is, of course, prior to the constable’s sale, and if it be valid,, the title of the plaintiff is tobe preferred»- The defendant objects to the legality of the sale on two grounds. One is, that it is alleged to be fraudulent and collusive in fact — the-other, that it is-fraudulent and void against creditors, under the statute of Elizabeth.
    If the whole arrangement between the parties, in relation to-this pruperty, was a fraudulent contrivance,, entered into for the-purpose of covering the property from levy and sale for the debts-of Hiskey, while it in fact substantially belonged to him, it is wholly void against the creditors of Hiskey, and the plaintiff cannot recover.
    When personal property is sold and transferred from one person to another, it is necessary to complete the title, that there should be an actual delivery, as far as it is susceptible of such delivery. If there is-no change of the possession, the sale will be" void against the creditors of the seller. Such possession must be delivered as the article admits of. If a ship at sea be sold by the owner at home, it cannot actually be delivered over to the purchaser. It is therefore enough, if the written muniments of title are-handed over; but to complete the right the purchaser must use due diligence to take actual1 possession, as soon as she comes to port; for if he do not, an intervening levy at the suit of a creditor of the vendor will take the property. Here,- the property in question- was grain in the ground. The only mode of taking, posses-sion of it, would be by taking possession of the field on which it was growing. The evidence is, that Fry went to the field where the wheat was with HisJeey, who says he showed the grain to him, .and gave it up to him. This was all the.delivery of which it was .then capable. It must remain in the field until after it was har•vested. It was not expected that Fry would remain on the ground himself, or hire a man -to remain there, to keep the actual posses•sion. But as soon as the grain was cut, it was capable of being removed, and it was incumbent on th.e plaintiff to show, either •that he had actual possession of it himself, .or that some agent or -servant of his, had the possession for him; or that it was stacked on ground of which he had possession, by being owner or tenante The grain, it appears, was cut by HisJeey, and hauled to the barn •yard on.the place, and there stacked. HisJeey still continued in pos» session of the place, and farmed it.as he had before done, with the same horses and stock. While the grain remained there in stack, It was levied on, and sold to the defendant. The plaintiff contended, that before the grain had been cut, immediately after the sale tu him, the possession of the farm .was transferred to him, and held for him by HisJeey, as his servant. In proof of this, he relies on the two agreements of the 15th of March, 1828; by one of which. Fry binds himself to pay the rent of $100 to Dr. Stewart, of the farm on which HisJeey then lived. The agreement is not signed by Stewart, but it is said that both of the papers are in his handwriting. He is a witness to the other, which is an agreement between Fry and HisJeey, by -which HisJeey agrees to woi’k a year for Fry for $5 per month, commencing on the first of April then ■next; the said HisJeey to work the farm he then lived on, “said Fry to furnish said HisJeey with all farming utensils, horses, cows, and every thing that is necessary to enable him to work the farm, and ¡to pay Hiskey, for his labor, five dollars per month.'” On the 5th of December, 1826, Stewart had rented to HisJeey, by a written lease, fo.r a year, which ended 1st April, 1S28. HisJeey states, that he gave up the .land and all he had to Fry, and agreed to work for him at $5 per month. The purport of these two agreements is, that HisJeey should remain on the land, and should work it for Fry, who should pay the rent for it, and his wages, for his labor. Under .these agreements, HisJeey continued to live on the land and to farm it, as he had done before. Under another agreement with the plaintiff, he cut the grain and hauled it to the barn on the place and stacked it up. If you believe, from the evidence, that the land continued still in the actual possession of HisJeey., under these .agreements, after the sale of the grain to the plaintiff, until the levy and sale of it to the defendant, and that after it was.cut it continued in the actual possession of HisJeey, and if you are also of opinion that sufficient time elapsed, after it was cut, before the levy by the constable, to allow it to be removed and placed in the possession of Fry, the defendant is entitled to your verdict; if you believe he purchased the property at constablé’s sale, as is alleged.
    But .if the possession of thé goods was actually changed — If, after it was cut, the grain was put into the actual possession of Fry; or if it were removed to some part of the farm, of which, at the time, he had actual possession, the transfer to Fry would be good, and he ought to recover,
    The defendant excepted to this charge. The verdict was for the’plaintiff. The defendant moved for a new trial; and after argument, the court being equally divided o.n the question, the rule to shew cause why a new trial should not be granted was discharged, and a judgment Was entered op the verdict for the plaintiff.
    JSrror was now assigned here in the charge of the Court in this:
    •' $. That the Court did not answer the second and third points put by the defendant.
    2. That the Court referred the construction of a paper to the jury, which it was the province of the Court to construe,

      Crawford for the plaintiff in error.
    There was po dispute as to the facts, Fry lived seven miles from the farm in the actual possession of Hiskey, and Hiskey had every indicia of ownership pf the property in question, which he could have; he contended, therefore, that the sale to Fry being unaccompanied by actual possession, which the policy of the law requires to accompany a sale of personal .property, was void as against the execution creditors of Hiskey, who had a right, notwithstanding, to tFeat the property as his, and sell it to satisfy these executions.

      Fry never had an}r actual possession, If the note from Fry to Stewart would make him the tenant of Steioart, the latter had no power to make with him any agreement which could have that effect. For Stewart had leased it to Hiskey, who was in posses-: sion; and could not lease it to another.
    The Court was asked to say, that the single bill of Fry to Stew- ' art and the agreement between Fry and Hiskey did not, in law, vest the possession in Fry. That the former did not make Fry the tenant of Stewart, but was a mere security for the payment of the rent from Hiskey to Stewart. The Court, however, did not answer these propositions, which they were bound to do.
    But the construction of the paper was submitted to the-jury.
    li Where facts exist de hors the paper, parol evidence as to theáe facts, and the paper itself may be referred to the jury; but '•jthls-rui&'-only applied, ho contended, when the paper could not be. understood without a reference to extraneous facts. Here there •was no ambiguity and no extraneous facts, which could affect its construction. The agreement was complete in itself, and the ¡Court should have given it a construction.
    2.- The construction of the paper, and the answer of the Court should have been in favor of the defendant. The Court should have chai'ged the jury, that this secret agreement, which sought to make Hiskey the tenant of Fry, would not vest the possession in Fry, or take away the imputation of fraud to the possession of Hiskey. To make the possession of the servant the possession of the master, so as to take it out of the salutary rule, which imputes fraud to a possession continued in the vendor, after a sale of personal property, that servant must be a stranger, not a party to the sale. If the vendor be, by the agreement, constituted a servant and the possession is continued in him after a sale; and this possession should be considered sufficient to vest the property in the ven-dee, so that it is not liable to the creditors of the vendor, then all ■the evils which the rule on this subject is calculated to avoid, would be sanctioned; for such an arrangement would always be made.. He referred to the case of Welsh v. Bekey, executor of Hayden, 1 Penn, Hep. 57, and contended that the principia .there established, was fully applicable to the case at bar.

      Dunlop and Chambers for the defendant in error.
    It is not pretended in the argument that there was any fraud in fact in the transaction under, which the plaintiff claimed, but it is put on the ground of a fraud in law to postpone the plaintiff’s title. There was evidence which went .to establish a transfer of possession from the vendor to the plaintiff. Hiskey changed his .character, and ceased to be a tenant, and became the servant of Fry, and his possession as such was the possession of Fry. But the question of possession, the continuance of that possession, and the character of it was for the jury, and upon this point the case was fully and fairly submitted to them.
    As to the second point put by the defendant below, they contended the Court were not bound to answer it at all, as it blended law and fact together, assuming that Hiskey had remained in possession of the wheat sold. Rouvcrt v. Patton, 12Serg. & Rawle, 258. But the Court substantially and correctly answered .the points put, and it is enough if the point be substantially answered. Fulweiler v. Rougher, 15 Berg. & Rawle, 56, Munderbach v. Lutz’s administrator, 14 Berg. & Rawle, 220. The Court told the jury that if Hiskey continued in possession, the defendant was-entitled to their verdict, which was as favorable to the defendant as he had a right to ask.

      Whether the transaction transferring personal property be frauds ulent or not, depends sometimes on the nature of the property. Here it was wheat growing in the ground, and incapable of actual delivery of possession. So far as possession could be delivered it was done. • This was a proper question for the jury., and was rightly submitted to them.
    The pa'pers were ambiguous, an.d this ambiguity required parol evidence to explain it. The jury on this evidence have ascertained the single bill to amount to a lease from Stewart to Fry„ The Court could not say it was a mere security, for it required a reference to other .evidence, which was connected with it, and went to establish the character .of. the transaction. When a contract is wholly in writing, it is tire office of the Court, and not the jury, to expound it. But when it is part written and part verbal, the whole may be left to the jury. Irvine & Co. v. Kean, II Serg. & Rawle, 280, 291. Rouvert v. Patton, 12 Serg. & Rawle, 253. Davis’ administrators v. Blaine’s executors, 12 Serg. & Razóle, 131.
    The lease from Stewart to Fry was good, notwithstanding the lease to Hiskey, for Histcey alone could object to it on this ground; and he was present and assented to it. Nor was it a secret agreement, all the parties necessaiy to make it were present; the landlord^ the tenant to surrender, and,the person to make a new lease.

      Crawford in reply:
    The case of Irvine v. Kean, proves that when the contract is wholly in writing, it must be construed by the Court, and ‘Davis’ administrators v. Blaine’s executors, that the Court is to give the construction of a written instrument, except where it cannot be understood without reference to facts de hors the writing. He contended that the contract of the 15th March, 1828, was wholly in writing, and cou.Id be perfectly understood without a reference to extraneous facts ; and the Court erred in withholding the construction which was asked. • The Court should have told the jury that there was no such thing as actual possession, that the possession of Fry was huta constructive possession, which is not enough The Court erred in referring the inference from facts, which were not disputed, to the jury, when the Court should have laid that inference down as the law which should govern the case.
    There was no blending of law and fact in the defendant’s second point. There was no dispute as to the fact which was assumed in the point; and in such case a fact may be fairly assumed in the request to the Court to state the law'to the jury as to that point. The writing of the 15th March, 1828. transferred no possession of this grain to Fry. He claimed under the private sale of the 17th March, and this transaction was without that notoriety which the law, for the safety of the community, requires. There was no record, and no witnesses of the delivery of possession, such as it was.
   The opinion of the Court was delivered by

Huston, J.

The' cases of Clow v. Woods, in 5 Serg. & Rawle, 275, and of Welsh v. Bekey, executor of Hayden, 1 Penn. Rep. 57, haye gone far' to settle the law as to cases of sales, or mortgages of goods where possession is not delivered. The present is on the one side supposed to fall within these cases. Perhaps there is one marked difference — in each of those cases the possession was to remain in the mortgagor. In this it is alleged to have been at once transferred to the purchaser, and to haye been, ever after in him ; and whether this was so, was the point of the cause — for I agree entirely with those cases. It was not contended here that there was actual fraud and collusion between Fry and Hiskey, though it was contended in the Common Pleas, evidence given to prove it, and the Court expressly left this to the jury. If the whole was an arrangement to cover the property from the creditors of Hiskey, while it really and substantially belonged to Hiskey, it is wholly yoid ;” is the commencement of the charge. But giving up this point'in this Court, an error is charged on the Court below, that the Court left the construction of the note and agreement of the 15th of March to the jury. I do not understand the charge so, and I am satisfied it was not so intended — was not so in fact. The note alone, perhaps, would not decisively make Fry the tenant, nor discharge Hiskey from liability for the next year’s rent; but the facts, that Fry had purchased all the horses and cattle and farming utensils of Hishey at a public sale by a constable, and the agreement between him and Hiskey, that with that slock and those utensils, Hiskey Was to work the farm for the ensuing year'for Fry, and to be paid a certain price per month, as a hireling, and that Stewart, the landlord, wrote this agreement and signed it as a witness, taken in connection with the note for the rent, given by Fry to Stewart, at the same time; would and did make Fry the tenant — and after this Stewart could not treat Hiskey as tenant, or resort to him'for the rent — unless all this was done by Fry as a trustee for Hiskey, and to cover his property. On the face of the papers, and if all was fair, Fry was tenant, if not fair, Hiskey was tenant; and the possession of this grain after it was reaped and stacked on that farm was in Fry or in Hiskey, according as the transaction was bona fide, or collusive — -and whether it was the one or the •rther was-le ft to the jury.

The other error assigned is, that the two first points were no! answered. If the cause be fairly put to the jury on the matters of fact and of law on which it turns, no more can be asked of a judge. These propositions assumed that the possession was airways in Hiskey, and if so the law was with the defendant, and so the judge expressly charged', but he very properly went further and told them that if it were in Fry the plaintiff ought to recover.

If Fry had hired, not Hiskey, but another man to work that farm for him, there would have been no doubt; the pos-' session would have been in him as much as if he had hauled the' grain to another farm of his own. Fry would then have been indisputably tenant, and the possession of the farm his possession. His-' key was sold out — poor—in debt — but it was no crime to employ him — to give him wages, and if in truth he was employed and paid by the month, Fry was as much in possession with Hiskey' as a hireling, as he would have been if another man had been employed. The fact that he was Fry’s brother-in-law might raise' suspicion — the facts that he had been tenant of that farm the year' before, and had owned the cattle and implements of husbandry, might raise suspicion — -but it is not fraud or guilt in a man who' wants a hireling, to employ a relation — it is only so when done collusively.

Whether then, the possession always remained in Hiskey, ot was at once transferred to Fry, and was ever after in him, depended on whether he was really the tenant, and Hiskey really the hireling, and this was fairly left to the jury. Any question which raises on granting or refusing new trial is not subject of writ of érror.

Judgment affirmed»


author: Houston, J.

text:
    SHULTZE against DIEHL and DIEHL.
    On the 6th April, 1830, the act of assembly which provides that the lien of a ínoít» gage shall not be affected by a sheriff’s sale, was approved by the Governor. This act on the 20th of April was published in a paper printed in Adam9 county, and on the 23d in a paper printed at Harrisburg. On the 10th April the sheriff of Adams county, having previously regularly advertised the same, sold the land of K to D, who had before that mortgaged the same to A. Before the sale, and before the passage of the said act of assembly, S, as the attorney of the mortgagee, he being also the attorney of the plaintiff in the execution, gave notice to the plaintiff that the mortgage money would be claimed out of the sale. It was the understanding of the sheriff and the general understanding at the time of the sale, that it would be so paid, but the said act of assembly was not known by any person present at the sale. Held; that the mortgagee A was entitled to be paid his mortgage out of the fund raised by the sale, in preference'to a subsequent judgment creditor ; and that the purchaser took the land sold, clear of the lien of the mortgage.
    Where at the time of a sale, the seller or any person present represents the title to be in a certain way, and it turns out not to be so, yet as against the person making ■the representation, it shall be as represented.
    Where the time from which a law is to go into operation is fixed in the law itself, Courts cannot alter it.
    This was an appeal from a decree of the Court of Common Fleas of the county of Adams, distributing the money, raised by the sale of the real estate of one Peter Keef haver.

    The controversy arose between Samuel Diehl, the purchaser, and David Diehl who claimed to be paid out of the fund in Court, the amount of a mortgage on the land sold, given by Keef-haver to him, and David Shultze, the appellant, who claimed the fund upon a judgment obtained against Keef haver, subsequent to the execution of the mortgage.
    The sale of the land out of which the fund was raised, was made on the 10th of April, 1S30, and the deed to Diehl, the purchaser, was acknowledged in open Court, on the twenty-eighth of the same month.
    On the 6th day of Jlpril, 1830, the act entitled “ a supplement to an act entitled, 4 an act for taking lands in execution for the payment of debts,’ passed in 1705,” was passed.
    This act was published in a newspaper printed in' the county, on the 20th April, 1830, and on the 23d of April, in one printed at tíarrishurg.

    By this act it is provided that where the lien of a mortgage upon real estate is prior to other liens 44the lien' of such mort-f gage shall not be destroyed, or in any way affected, by any sale made by virtue or authority of any writ of venditioni expo-nas.”

    A prior sale of this property had been- made by the sheriff, some months before, to the same purchaser, which had been set aside by the Court., Both sales were on the same judgment.
    Between the sales, Mr. Stevens, (who was counsel of the plaintiff in the execution upon which the land was sold,) as the attorney of the mortgagee gave notice, that the mortgage money would be? claimed out of the proceeds of the sale, and- a similar notice-was given by the mortgagee himself.
    It was in proof by the sheriff who made the sale, that this-act of assembly in reference to mortgages was not known by him at the time the sale was made, and that it was not spoken of. That it had been always the practice since he had been in office, to pay mortgages out of the proceeds of sale, and that when he- received the notice on behalf of the mortgagee, and at the-sale,, it was hi's understanding, and as far as he knew, the general' understanding, that the mortgage money would be paid out of the sale, and'that he gave notice to-the mortgagee to be present at the appropriation of this fund.
    A decree of the Court below having passed for the.mortgagee;,, the judgment creditor-appealed to this Court-..

      Miller for-the appellant
    Referred to the act of assembly of the 6th April, 1830, PampJi-let haws 293, and contended, that as this act changed the law,, •before the sale was made, the mortgage remained charged upon the land,, and the whole fund should have been decreed to the-judgment creditors of the defendant in the execution.

      Penrose for the appellees-:
    The language of the act of assembly referred to is peculiar, and-is now, for the first time, presented for construction. It is, that “the lien of such mortgage shall not be destroyed, or in any way affected.” It is not that the mortgage shall not be paid out of the sale, but that it shall not be “destroyed or affected.” If the property mortgaged be sold for enough to pay off the mortgage, and the whole amount be paid to the-mortgagees, it is-questionable whether such a case would fall within the language of the act. It certainly does not within the supposed mischief designed to be remedied by it. The mischief complained of was, that a judgment creditor, junior to a mortgage, .might, and frequently did sell" the property mortgaged for a- small sum, and thus destroy •the interest of the mortgagee, without his knowledge or concurrence But when the mortgage is paid off, he cannot complain •that he is affected injuriously.
    But again; this act of assembly, it is manifest, was made'for the benefit of mortgagees-; and the principle is well established, ■that the person for whose benefit a rule exists, may always dispense with it. -Here the mortgagee did dispense with this act of assembly in his behalf, by a notice, thathe should claim his mortgage money out of the proceeds of sale, and by insisting on doing ■so in the distribution made by the Court. The Farmers’ Bank: of Heading v. Boyer and others. 16 Serg. & Rawle, 48.
    But no act of assembly is passed until it is published. Law is á£a rule of civil conduct prescribed,” and publication is essential to give it the character of a law. It may.be notified, as in England, viva voce, by officers appointed for that purpose, or by writing or printing. \ Black. Com. 46. Here, acts of assembly are published first in newspapers, then in pamphlets, and afterwards in volumes.
    Although, then, this act was approved by the governor on the 6th April, it was'not published until the 20th of April, and its existence was wholly unkn.own at the time.of the sale, which toolc place on the tenth; so far from .the seat of government, that it was almost impossible then to haye obtained a knowledge of it.
    If, however, it' be considered, that this act of assembly-became a law on the 6lh of April, so as to affect individuals so remote from the place of its passage that no publication of it had reached them, yet it cannot be applied to the case of a sale, which was not made after the passage of the act. Now a sheriff’s sale does not consist in the mere outcry of the property, and knocking it down to the purchaser. The writ upon which it is made, the levy on the writ, and the advertisements required by the act of assembly, are parts of the proceeding which constitute the sheriff’s sale. The issuing of the writ, the levy and the advertisements, were before the passage of the act. The sale was commenced then at the time of the passage of the act; and the sale was not therefore made after the act. So the act of 14th March, Í814, explanatory of the “act for the sale of vacant land in this Commonwealth,” does not extend to sales commenced before its passage. Bedford v. Shilling, 4 Serg. & Rawle, 401.
    But no matter how the law might be, it would be controlled by the express understanding and agreement of the parties, modus et conventio vincunt leges. Here the plaintiff, who made the sale, and the mortgagee, the only persons who had an interest in it, concurred in the agreement, that the sale should be made clear -of the lien of the mortgage.

      Sevens in reply.
    If the lien of the mortgage is not to be affected, the money raised by the sale cannot be applied to it; for if not affected by the sale, it would continue to exist after it, which would not be the case if it were paid off by the sale. There was a difference of opinion, in regard to the payment of mortgages out of the proceeds of a sheriff’s sale. It was a-vexed question. The Supreme Court settled this question, and this act was passed, to change the law as ascertained by this decision. It is to have a uniform effect, and afford the same rule to every man. It was passed for the benefit, as Well of the defendant, as' the mortgagee, and it must be the concurring act of all parties which will destroy its effect.
    The question of actual knowledge of a law, is not to be inquired into; every one is presumed to have it. In all cases where no specific time is named, it takes effect froth .its passage. The day being fixed, the time when it shall take effect is not open to be questioned. It is settled by the legislature, who alone are responsible: and the law, as laid down in Blackstone, is to admonish the legislator, and not to regulate the decision of the judge. An act of assembly is. promulgated when it is enrolled and passed. If the legislature fix a precise time when it is to go into operation, and the pamphlet laws, which are the only mode of promulgation with us, are not published until after that time; this Court would not say, that it should not take effect on the day fixed by the legislature. If the act be not ambiguous, the Court is bound. If it were established as a rule, that a reasonable time should be allowed from the passage of an act, before it became a law, who would decide as to what time is reasonable. The time would be different, under different circumstances, in different parts of the state.
    The passage of an act is when it is returned to the legislature, with the signature of the governor. The legislature here have fixed this time, and nothing is left for construction. The sale was not made until after the act was passed. The day on which land is sold, is the day of sale. The advertisements are in the nature of a negotiation for the sale, an offer of the property for sale. The words of this act of assembly apply to the ease, and no agreement to dispense with the act has been proved. Here too the purchaser took the deed with his eyes open.
   The opinion of the Court was delivered by

Houston, J.

If there were nothing in this case, but the construction of the act of assembly, and the question as to the time ■from which a law, expressed as this is, takes effect, the decision of the Cou.rt could not be supported — For where the lime from which a law is to go into' operation is fixed in the law itself, the Courts cannot alter it.

Before the passage of the act of the 6th April, 1830, the law was settled, that the purchaser of land at sheriff’s sale, took it clear of incumbrances, and the purchase money went to the lien creditors, according to their legal priority; but, even then, a levy, subject to a specific lien, advertisement, sale and deed subject to it, did not pass the land free from that lien — but the purchaser took subject to it; because all the parties to a transaction can modify the terms as they please, provided they do not contravene express written law or public policy.

In the present case, every person interested understood and agreed, that the purchase was to to be clear of incumbrances. Every person bid on that idea, and every person believed the law required a sale on those terms, and would establish'those terms, unless there was an express agreement to the contrary. The very plaintiff, who now wishes to disregard this, directed the sheriff so to sell; and the purchaser bought on the terms of a title, clear of incumbrances, not merely because the law was so generally, but also because it was so expressly understood at the time of the sale. The application on the part of the person, who expressly directed the sheriff to sell in that way, to throw the land on the purchaser, subject to an incumbrance equal to one-third of its value, is most unreasonable. A Court is often called on to consider and decide in cases where settled principles are involved, which, in that case, appear to conflict. A man who purchases is bound, according to his contract, as understood by himself and the seller — and where all understand the contract in the same way, I know of no case in which a party is subject to any conditions, or liable to any burden, not contemplated by any one. If the bargain is binding at all, it binds as it was made and understood — and this principle is as plain and as obligatory on a Court as any other. No one is injured by the decision of the Court. It was said that the defendant, whose land was sold, was injured; but I apprehend it was said without consideration; for if the land had been sold, subject to a mortgage, for $500, would have sold for less by $500.

There is another rule, equally well settled — where, at the time of a sale, the seller, or any person present, represents the title to be in a certain way, and it turns out not to be so, yet as against the person making the representation, it shall be as represented. Now here the person applying for this money, by his attorney, directed this land to be sold free of incumbrances; although the client would not be bound by his attorney’s opinion or declarations as to the titles, yet as the attorney had the. direction of this sale, and, to a certain extent, the power of directing the terms, it never can be, that he should direct a sale to be publicly made on terms of giving the purchaser a title clear of incumbrances, & the client compel that purchaser to take it subjeet to ineumbrances. Tobe sure the attorney was not culpable in directing those terms; for, at that time, such was the general law. The wrong is, in now endeavouring to impose a different contract on the purchaser.

I have intimated, that in consistency with former decisions, a sale may be made under the present law, by which a purchaser may get the land clear of a prior mortgage; but to effect this, it must be with the eonsent of the mortgagee, the plaintiff at whose suit it is selling, and of the defendant, whose land is so sold. And this dught to appear in the levy, advertisement and conditions of sale and in the deed. It will not do to let it rest on parol proof of what was said at the time of the sale; it must, in some shape, appear in the proceedings — must form a part of the record of the sale.

A case, like the one before the Court, cannot again occur under the present act; and we have thought it right to intimate the necessity of hereafter making any special terms, in a sheriff’s sale, a part of the reeord. The obvious justice of this case, arising from the universal uederstanding of all parties at this sale, together with the fact that it took place before any one of the parties knew of this law, has induced us to consider this as an exception to what we consider will be the rule hereafter, and as decided on the special facts which occurred — and which would govern any other case, depending precisely on the same facts.

Judgment affirmed