text:
    Kraut’s Appeal.
    1. Pox conveyed a lot to Kraut, with a passage, without defining it, over his “remaining ground” to convey the filth from Kraut’s privy; part of his “ remaining ground” was vacant and part occupied by a house in which Pox lived, he conveyed the vacant part, with special warranty, to Craig, without any reservation, and afterwards opened for the purpose through his house a passage, which Kraut used twice. Pox’s heirs were bound by this location and could be restrained from preventing Kraut from using the passage.
    2. Although the construction of the grant might be that the vacant part was intended for the passage, the parties might define the limits by subsequent agreement, use and acquiescence.
    3. The presumption was that Pox intended by his deed that Craig’s lot should be discharged from the easement, and that it should be fixed on Pox’s improved lot.
    February 14th and 15th 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Philadelphia: In Equity : Of July Term 1871, No. 68.
    The bill was filed at December Term, 1869, of the Common Pleas, by John Gr. Kraut against William Fox, Rachel Fox, John Nace and Sarah Nace: afterwards Matthew Craig was added as defendant.
    The bill averred that on the 14th of July 1859, Frederick Fox conveyed to the plaintiff a messuage and lot of ground on the south-westerly side of Savery street in Philadelphia, and extending south-westerly 60 feet, bounded on the north-east by Jacob Kurtz; south-west by other land of Fox; south-east by Eliza Miller “ with the right, &c., of a passage-way into Marlborough street, over and across the remaining ground of the said Frederick Fox, adjoining the lot thereby granted on the south-west for ever thereafter whenever, &c., the same might be required for the purpose of conveying the filth from the privy-well sink on the said thereby granted lot into the said Marlborough street,” that the defendants’ title was under Frederick Fox, and was bound by the said grant of a passage-way ; that the lots of William Fox, Sarah Nace and Matthew Craig were part of the “ remaining ground ” of Frederick Fox adjoining the plaintiff’s premises, and they derived their title from Frederick Fox by deed dated subsequently to the conveyance to the plaintiff; that the plaintiff’s privy-well was full of filth, and he had been notified by the Board of Health to remove the same, that he had so notified the defendants, but they refused “ to let him use the said passage-way although a passage and entry was made and left open over, across and through the premises of the defendants, William Fox and Sarah Nace, for the express purpose of being used for clearing and carrying away the filth from said privy-well, and they had threatened complainant with violence, &c., if he attempted to proceed through said passage-way and entry,” &e.; that the defendants William Fox, Rachel Fox, John Nace and Sarah Nace were preventing him from carrying away, &c., as he had the right to do.
    The prayer was that the defendants he restrained from prevent-' ing his removing the filth, &c., and for further relief.
    William Fox, Rachel Fox, John Nace and Sarah Nace answered that they resided on the property on Marlborough street, which belonged to Sarah Nace and William Fox, and on which is erected a house “for over forty years,” covering the whole front of the lot. The property adjoining on the northwardly side at the date of the conveyance to the plaintiff had no building on it and was then the property of Frederick Fox, from whom these respondents derived title: there was a fence between the plaintiff’s property and this adjoining property in which was a gate from plaintiff’s lot to the adjoining ground, which these defendants averred was the “remaining ground of Frederick Fox: — this ground belonged to Matthew Craig. These defendants denied that Frederick Fox made a passage in his house to carry the filth through the house now belonging to them; there was an entry through the house made by Frederick Fox for the convenience of his family; Frederick Fox in his lifetime and these defendants since his death, denied the claim made by the plaintiff. These defendants denied the right of the plaintiff to carry the filth through the entry; denied that Frederick Fox conveyed such right to the plaintiff, or that the words “ over and across the remaining ground ” gave the plaintiff the right to carry through the house. Craig answered, admitting according to his belief that Frederick Fox conveyed the premises and passage-way to the plaintiff as stated in his bill. On the 24th of August 1860, Frederick Fox conveyed to this defendant free from any condition or reservation a lot of ground on the north-east side of Marlborough street and at that time Frederick Fox owned a lot and messuage adjoining the defendant on the south-east; Frederick Fox died intestate in possession of the said messuage and lot. and seised of them, and the other defendants were his heirs. About the time of the sale by Frederick Fox to this defendant, he had opened an entry or passage “ through, over and across his remaining ground, that is to say over and through the messuage and lot of ground, which he himself occupied, and which adjoined ” this defendant’s lot; that this passage was once or more used by the plaintiff during Frederick Fox’s lifetime “with his knowledge and consent and in ex-t ercise of the privilege granted to the plaintiff for the purpose of conveying the filth, &c., into Marlborough street.” No such way had ever been opened over this defendant’s premises; the plaintiff never used his lot or claimed the right to do so in exercise of his privilege; but “ the passage or alley above set forth was selected and used by Fox and the plaintiff for that purpose.”
    This defendant set out his legal defence as follows:—
    “ 1. That the plaintiff being the grantee of Frederick Fox, of a privilege or right of way over the remaining ground of Fox, and such way at first indefinite, having been designated or agreed upon or fixed by use and acts of acquiescence of the parties, it cannot be changed by the plaintiff or by the heirs of Frederick Fox, or by any one else to my prejudice.
    “ 2. That having purchased my lot of Frederick Fox, clear of encumbrance and without condition or reservation; as between the heirs of Frederick Fox and myself, the plaintiff’s privilege must be exercised over the ground of which Frederick Fox died seised.”
    A replication was filed, and Joseph T. Ford, Esq,, was appointed examiner.
    Before him Lewis- Holsworth testified that Kraut had carried his filth over Fox’s property: that Frederick Fox, the father of William Fox, and Sarah Nace had told witness that the man who bought the property next to him would not have bought it if the alley had been on the other side, and that he told Kraut that the passage-way for carrying the filth was the entry through the house ; the property “ on the other side ” was an open lot; Kraut had used this entry for the purpose twice to Marlborough street; Kraut always claimed the right, and Frederick Fox never said anything against it. Craig was the owner of the lot “on the other side.”
    Kraut the plaintiff testified that when he first purchased, he carried the filth through the lot now Craig’s: Craig bought about a year afterwards, and closed the entrance into his lot, and on speaking to Fox he told him he would give him an outlet and make an entry through his house; he did so and Kraut used it twice for carrying the filth and nobody stopped him.
    Other witnesses testified that Fox had made the entry, on purpose to carry the filth of Kraut through it, and that Kraut had used it for that purpose twice.
    Mrs. Nace and William Fox are the children of Kraut’s grantor.
    The conveyance from Fox to Kraut was July 14th 1859, as set out in the bill; from Fox to Oraig August 14th 1860.
    The court awarded an injunction against Oraig, restraining him from preventing Kraut from carrying his privy filth across his, Craig’s, lot, and refused the injunction as to the other defendants. Kraut appealed to the Supreme Court, and assigned for error the refusal of the injunction against the latter defendants.

      R. P. White (with whom was Gf. B. Earle), for appellant.
    Where a right of way by deed is without fixed limits, the use of the way acquiesced in by the grantor is deemed to be that intended to be granted: Gale and Whately on Easements 344; Hall v. Fuller, 2 Vermont 199; Washburne on Easements 41, 185; Comyn’s Dig. Chimin D. 5; Wynkoop v. Berger, 12 Johnson 222; Stone v. Clark, 1 Metc. 371; Jennison v. Walker, 11 Gray 423; Katmuller v. Krotz, 18 Iowa 352; Jones v. Percival, 5 Pick. 485; Lefevre v. Lefevre, 4 S. & R. 241.

      E. B. Weil, for appellees.
    The right to pass through defendants’ house could not be shown by parol: Barnet v. Dougherty, 8 Casey 372; Richardson v. Campbell, 1 Dall. 10; Litle v. Henderson, 2 Yeates 295; McWilliams v. Martin, 12 S. & R. 269; Collam v. Hooker, 1 Rawle 108; Shepherd v. Watson, 1 Watts 35. A writing relating to lands cannot be varied by parol: Seitzinger v. Ridgway, 4 W. & S. 472; Simpson v. Murray, 2 Barr 76; Woods v. Wallace, 10 Harris 171; Best v. Hammond, 5 P. F. Smith 412.
    October 17th 1872,
   The opinion of the court was delivered, by

Williams, J.

Under the deed of Frederick Fox, of July 14th 1859, the appellant is clearly entitled to a passage-way, from the premises thereby conveyed, over and across the grantor’s remaining ground to Marlborough street, for the purposes specified in the conveyance. The right of way is expressly granted, but its precise location and limits are not fixed and defined by the deed. Looking to the general terms of the grant and the condition of the ground at the date of the deed, the reasonable construction and inference would seem to be, that the parties intended that the right should be exercised over that part of the ground which was then vacant. Rut it was competent for them to define the location and determine the limits of the passage-way, which were undefined by the deed, by subsequent agreement, use and acquiescence. When, therefore, the appellant’s grantor, on the 14th of August, 1860, sold and conveyed the adjoining vacant ground to Matthew Craig, with covenant of special warranty, without subjecting it to the burden of the right of way previously granted and conveyed to the appellant, the fair presumption is, that he intended that Craig should take the land discharged from the burden of the easement, and that it should be fastened on the improved land of which he was still the owner. The evidence shows that, soon after the date of this conveyance, Fox agreed to open an entry in his house leading out to Marlborough street, for the purpose of enabling the appellant to exercise the right of way to which he was entitled by the terms of his deed. That he subsequently opened an entry through his house to Marlborough street in order to provide a passage-way as agreed, and that the appellant used it during the lifetime of Eox, for the purposes expressed in the deed, is satisfactorily shown by the testimony of Louis Holsworth, corroborated, as it is, by the testimony of Philip Rothfuss, John Miller, and Edward P. Nace, one of the defendant’s witnesses. Under the circumstances, it is manifest that Frederick Fox, if he were living, could not with any justice or equity, insist that the right of way granted to the appellant should be exercised over the lot which he subsequently sold and conveyed to Craig; and if not, then the appellees have no right to insist that the burden of the servitude shall be imposed on Craig, who bought the property from their ancestor and paid him a full consideration for it. Under the pleadings and proofs in this case the appellant is clearly entitled to the right of way over the appellees’ lot, as fixed and defined by their ancestor, and as used in his lifetime. The court below, therefore, erred in awarding an injunction against Craig, and dismissing the bill as' to the appellees. The bill should have been dismissed as to Craig, and a perpetual injunction awarded as against the appellees who claim title as heirs of Frederick Fox, to the lot on which he imposed the easement claimed by the appellant.

And now, October 17th 1872, it is ordered, adjudged and decreed, that the decree of the court below be, and the same is hereby reversed and set aside; and it is now further ordered, adjudged and decreed, that the appellant’s bill of complaint be dismissed as against Matthew Craig, one of the defendants named therein, and that a perpetual injunction do issue against the appellees, the other defendants named in the said bill, as prayed for by the appellant, the complainant therein; and that the costs of this appeal be paid by the appellees, William Fox, Rachel Fox, John Nace, and Sarah Nace.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Evans et al. versus Waln et al., Executors.
    1. Wain employed Markoe, a broker in Philadelphia, to sell stock; Evans, a broker in New York, sold the stock by order of Wister, another Philadelphia broker under Markoe, with assent of Wain, without naming the owner; before the proceeds were remitted by Evans, Wister failed, in debt to Evans. Held, that Evans could not retain the debt from the proceeds.
    2. After Wister’s failure Evans asked Markoe to send certificates and he would remit to Markoe less Wister’s debt; Markoe answered, the stock was a customer’s; Evans answered, send stock in any event, “ will give you net balance to-morrow.” Markoe sent the stock. Held, that “net balance” meant proceeds after deducting expenses of sale.
    3. Evidence that it was the custom of brokers, in their dealings with brokers of other cities, to put all transactions between them into one account and settle for the general balance, was inadmissible.
    4. Such custom would not have authorized defendants to credit Wister’s account with the proceeds of the stock.
    5. The action for the amount retained by Evans, was properly brought in the name of Wain.
    6. An action for the proceeds of property sold by one agent by orders of another can be maintained by the owner against seller.
    February 15th 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 119, to July Term 1871. This was an action of assumpsit, brought March 27th 1871, by Edward Wain and others, executors, &c., of S. Morris Wain, deceased, against Manlius Gr. Evans and others, trading as Evans, Wharton & Co.
    The plaintiffs being owners of 2033 shares of Columbus, Chicago and Indiana Central Railroad stock, employed Markoe & Brother, brokers in Philadelphia, to sell them. The stock was sold by the defendants, brokers in New York, through the agency of Frank Wister, another broker in Philadelphia. Wister failed, in debt to -the defendants whilst the proceeds of the sale of the stock were in their hands, in remitting the proceeds, they withheld the amount of his indebtedness.
    The suit was brought to recover this amount. The ease was tried May 31st 1871, before Stroud, J.
    Wister testified that he had been employed to sell the 2033 shares of stock, which belonged to the estate of S. Morris Wain, deceased, his instructions were from Markoe & Brother, he sent the order to the defendants by the following telegrams :
    “Philadelphia, March 7th 1871.
    E. W. & Co.:
    Sell five C. C. & I. C. — best seller there — don’t press — have a lot for sale — can be shipped to-day if absolutely necessary.
    Wister.”

      “Philadelphia, March 8th 18T1.
    Evans, W. & Co.:
    Work off fifteen hundred and thirty-three at best. Don’t hurry, and quote C. C. & I. 0. income bonds.
    Wister.”
    In pursuance of these, the stock was sold by the defendants; the certificates had never been in his possession; Markoe & Brother attended to the rest of the business: he informed defendants in a conversation previously, that he thought he would have the sale of the stocks, and that it belonged to the estate of Mr. Wain. He did business with defendants on his own account, as well as for his customers. On cross-examination he testified, “ It is the custom for a broker who is employed to sell stock, to receive the proceeds thereof and pay the principal. I could not say what the custom is between brokers of different cities. It is not uniform.”
    The following questions were put to the witness, they were objected to by the plaintiffs, rejected by the court, and several bills of exception sealed.
    “ At the time these orders were given were you not indebted to the firm of Evans, Wharton & Co ?”
    “Was it not your custom in dealing with Evans, Wharton & Co., to keep one account of all your transactions ?”
    The counsel for the defendants on being asked, said thab he did not intend to follow the question by showing that the plaintiffs were acquainted with such custom.
    Wain, one of the plaintiffs, testified that he gave Markoe & Brother the order to sell the stock and suggested that it would be agreeable to witness, if they would share the commissions with Wister; he understood Wister was associated with them in effecting the sale: the stock was not saleable in Philadelphia. Markoe & Brother returned to the plaintiffs account sales as having been made in New York: he knew stock had been sold through the defendants. He did not see Wister in the transaction ; the plaintiff never communicated directly with the defendants ; he first heard of Wister’s failure about the closing of this transaction.
    John Markoe, of the firm of Markoe & Brother, testified, that the firm was employed to sell the stock. Mr. Wain knew the condition of the Philadelphia market and instructed them to sell it, he knew through whom they would sell it; it was sold by the defendants; the'stock brought $42,621.22; Markoe & Brother received $41,491.99 from defendants, leaving due $1129.23 ; the orders'to sell the stock were given in the name of Markoe & Brother. Witness said : “ When stock is sold regular it is generally deliverable the next day.”
    The defendants asked witness as follows : “ When stock is sold regular and not delivered the next day, is not the broker to whom the stock is sold obliged to borrow stock in order to fill his contract with his principal ?” The plaintiffs objected to the question, it was rejected by the court and a bill of exceptions sealed.
    The plaintiffs then gave in evidence seven telegrams dated March 7th and 8th 1871, from the defendants to Wister ; two of them respectively informed him of the sales of “ 300 0. C. & I. 0.” and‘‘20,0 0. 0. &I. C.”
    The defendants then gave in evidence the following telegrams :
    Phila., March 9th 1871.
    C. Evans, care Evans, Wharton & Co.:
    I have stopped. I owe Treichel ten Reading at two. Deliver these, if you have enough to make you whole. Keep the Erie, if you can; but I don’t want you to suffer. The Columbus will be shipped by Markoe.
    Answer to this main office. Wister.
    Phila., March 9th 1871.
    Evans, Wharton & Co.:
    Notification by letter reports sale of only nineteen hundred and thirty-three shares (by wire yesterday, two thousand and thirty-three shares). Suppose latter is correct. Have shipped stock to-day. Remit to us.
    Markoe & Bro.
    Phila., March 9th 1871.
    Evans, Wharton & Co.:
    Have had no answer to our despatch.
    Markoe & Bro.
    N. Y., March 9th 1871.
    Markoe & Bro.: •
    We sold one hundred to Marx Co. at West, and omitted to notify by mail. Do you want the entries to go into your account, or into Frank’s ? What are his liabilities ?
    E., W. & Co.
    Phila., March 9th 1871.
    E., W. &Co.:
    Our account. We ship all the stock to-day. Advise us that you remit. Don’t know poor F.’s liabilities.
    Markoe & Bro.
    N. Y., March 9th 1871.
    Markoe & Bro.:
    Our friend owes us about six hundred. If you will ship the C. C. & I. C., we will remit (less that amount) to-day. If not, we must buy in sufficient stock to protect us. Answer quickly.
    E., W. & Co.

      Phila., March 9th 1871.
    E. W. & Co.:
    Do not think it ought to be included, for shipment. I have the stock ready
    Markoe.
    N. Y., March 9th 1871.
    Markoe & Bro.:
    Please answer our first despatch, do not delay as you are removing our chance of protection.
    E., W. & Co.
    Phila., March 9th 1871.
    E., W. & Co.:
    You have asked for whose account and have been answered. The stock was sold for account of customer of ours.
    Markoe & Brother.
    N. Y., March 9th 1871.
    Markoe & Bro.:
    Please send order to cover. E., W. & Co.
    Phila., March 9th 1871.
    E., W. & Co.:
    Do not cover. We áre ready to deliver.
    Markoe & Bro.
    N. Y., March 9th 1871.
    Markoe & Bro:
    Do not fail to ship stock to-night, in any event, as it is very scarce. We will give vou net balance to-morrow in Philadelphia.
    E., W. & Co.
    March 9th 1871.
    E., W. & Co.:
    All right, as far as shipment is concerned you could have had it before. Markoe & Bro.
    The defendants proposed to prove by Robert Grlendenning, a broker, that it is the custom of stockbrokers when dealing with stockbrokers in other cities, to put all the transactions between them into one account, and to remit or draw for the general balance. This was objected to by the plaintiffs, unless to be followed by evidence that it was known to the plaintiffs, and the defendants’ counsel saying he did not so purpose, the court rejected the offer, and sealed a bill of exceptions.
    Cadwalader Evans, one of the defendants, testified that the defendants had not been informed when the orders were given, that the Markoes had anything to do with the transaction, except as friends’ of Wister.
    The plaintiffs in rebuttal gave in evidence three telegrams from Markoes to defendants and as many answers from defendants, all of March 7th and 8th 1871, and all relating to “ C. C. & I. C.” stock.
    The defendants submitted the following points, which the court declined to answer :—
    4. If the jury believe from the evidence that F. Wister was unable to or did not fulfil his promise to deliver the said stock to the defendants on the ninth day of March 1871, then the defendants were not obliged to accept the subsequent delivery of said stock by Markoe & Brother, except upon such terms as they the defendants chose to agree to.
    5. If the jury believe from the evidence that the defendants did not accept the delivery of stock by Messrs. Markoe & Brother, as the fulfilment of F. Wister’s contract, except upon the condition that the indebtedness of the said F. Wister to the said defendants was to be deducted from the proceeds of the sale of the said stock, the verdict must be for the defendants.
    6. If the jury believe from the evidence that the defendants were employed as sub-agents for the sale of the said stock by Francis Wister, then they are accountable only to the said Wister and not to the plaintiffs, and the verdict must be for the defendants.
    The court charged the jury as follows:—
    “ If you find from the evidence that the stock sold by the defendants belonged to the plaintiffs, as the executors of S. Morris Wain, and the ownership was known to the defendants, that the order to sell the stock was given by Colonel Wister, that the defendants knew that he was a stockbroker, the plaintiffs are entitled to the proceeds of the sale of this stock, after deducting the commissions of the defendants for making the sale, and that the plaintiffs are entitled to the balance claimed.”
    The verdict was for the plaintiffs for $1144.48.
    The defendants took out a writ of error and assigned for error the rejection of their offers of evidence and declining to answer the points.

      G-. T. Bispham, for plaintiffs in error.
    Evidence of the custom of brokers under the circumstances of this case was admissible: Coles v. Bristowe, Law Rep. 4 Ch. App. 3; Maxted v. Paine, Id. 6 Exch. 132; Duncan v. Hill, Id. 255. The action could be maintained against defendants only the name of Wister: Stephens v. Badcock, 3 B. & Ad. 354; Sims v. Brittain, 4 Id. 375; Ireland v. Thomson, 4 C. B. 149; Addison on Contracts 587.

      J. JS. Gowen (with whom was A. B. Campbell), for defendants in error.
    The defendants could not be themselves the purchasers, while acting as agents for the sale: Story on Agency, §§ 9, 211; Tetley v. Shand, L. T. 25, C. P. xxv., N. S. 658. Even had they been purchasers of the stock from Wister, they could not have set off the debt in an action by the principal: Dunn v. Wright, 51 Barb. (N. Y. S. C.) 244; Fish v. Kempton, 7 M. G. & S. (62 E. C. L. R.) 687; Sweeting v. Pearce, 7 C. B. N. S. (97 E. C. L. R.) 449; Wigglesworth v. Dallison, 1 Sm. Lead. Cas. Part II., 687; Shaw v. Spencer, 100 Mass. 382; Markham v. Jaudon, 2 Hand. (41 N. Y. Court of App.) 235; Day v. Holmes, 103 Mass. 206; Coxe v. Heisley, 7 Harris 243. Assumpsit lies where the defendant has money of the plaintiff’s which, ex aequo et bono, he ought to refund: Nash v. Towne, 5 Wallace 689; Gilpin v. Howell, 5 Barr 41; Taintor v. Prendergast, 3 Hill (N. Y.) 72; Parker v. Donaldson, 2 W. & S. 9; Reeside v. Reeside, 13 Wright 322. It is really only an attempt to set off the debt due by Wister, which they are not entitled to do: Pratt v. Willey, 2 C. & P. 350 (12 E. C. L. R. 164); Grant v. Seitsinger, 2 Penna. R. 525; McNair v. McLennan, 12 Harris 384; George v. Clagett (7; T. R. 359), 2 Smith’s Lead. Cas. 197 (*185); Sheffer v. Montgomery, 15 P. F. Smith 329; Bousfield v. Wilson, 16 M. & W. 188.
    July 3d 1872,
   The opinion of the court was delivered, by

Williams, J.

There is no evidence that the defendants accepted the delivery of the stock by Markoe & Brother, on the condition that Wister’s indebtedness to them should be deducted from the proceeds of sale. No such agreement or understanding can be fairly inferred from the language of the despatch, in pursuance of which the stock was delivered, or from the previous communications between the parties. On the contrary, the whole correspondence shows that the stock was delivered without any such condition, on the defendants’ promise to pay over the net balance of the proceeds of sale. No other interpretation can be given to the words: “ We will give you net balance to-morrow in Philadelphia.” As applied to the proceeds of the sale of stock, the phrase “ net balance” means, in commercial usage, the balance of the proceeds after deducting the expenses incident to the sale. And without doubt it was understood in this sense by Markoe & Brother, and the defendants intended that it should be. If the order for the delivery of the stock had been addressed to Wister there might be some ground for the contention that by “net balance” the defendants meant the balance of his account after crediting the proceeds of the stock. 'But as it was addressed to Markoe & Brother, how, in the face of their refusal to allow the defendants to retain Wister’s indebtedness out of the proceeds of sale, can it be seriously urged that the defendants meant the net balance of the proceeds after deducting his indebtedness ? There is nothing in the language or in the attendant circumstances to warrant any such interpretation of the defendants’ promise. It is clear that the stock was delivered to them with the understanding that they would pay over the net proceeds of sale in accordance with its plain meaning. And if so, the court below was clearly right in refusing to affirm the defendants’ fourth and fifth points. However correct in the abstract, there was nothing in the evidence to which they were applicable.

Nor was there any error in rejecting the offer to show that it is the custom of stockbrokers, when dealing with stockbrokers in other cities, to put all the transactions between them into one account, and to remit or draw for the general balance. Such a custom, if proved, would have constituted no defence to the plaintiff’s action. Admitting its existence, the defendants had no right to credit Wister’s account with the proceeds of the stock. He was not the owner of it, and he had no title or claim to its proceeds. The defendants did not receive the stock from him, and they were not bound to account to him for the price for which.it was sold. Besides it does not appear that they did credit him with the proceeds, and no offer was made to show that any such credit was given. It is clear then, that whether the custom was known to the plaintiffs or not, this case is not within its operation. And if so, evidence of its existence would not help the defendants, and was, therefore, rightly rejected. But if the defendants had received the stock from Wister — knowing as they did that it belonged to the plaintiffs — they would have had no right to apply the proceeds arising from its sale to the payment of Wister’s indebtedness. If there is a custom among stockbrokers, when dealing with others, to appropriate money belonging to the principal to the payment of his broker’s indebtedness, the sooner it is abolished the better: Malus usus est ábolendus. A custom so iniquitous can never obtain the force or sanction of law, and the marvel is that it should be set up as a defence to this action.

The only question which remains to be considered — if question it can be called — is whether Wister or the plaintiffs are entitled to maintain the action. If the right of action follows the title to the proceeds of the stock there can be no doubt that the action is properly brought by the plaintiffs. They were the owners of the stock, and as such, entitled to its proceeds, and as they have not parted with their right to demand and receive them, there can be no question as to their right to maintain the action. It is wholly immaterial that the stock was sold on the orders of Wister, if, as we have seen, the defendants were not bound to account to him for the proceeds, and he had no right to demand and receive them. Without such right it is clear that he has no title to maintain the action. The authorities cited by the counsel for the plaintiffs in error have no application to this case; and if they had, it is not the law of Pennsylvania that the owner of property, which has been sold by one agent on the orders of another, cannot maintain an action against the seller for the proceeds of sale which he has received and unjustly withholds. The other assignments were abandoned on the argument and need not be noticed.

Judgment affirmed.


author: Sharswood, J.

text:
    Esser versus Linderman et al.

    1. Esser employed brokers to buy stock and “ carry it.” The brokers wrote him for further security, or they would not carry his stock. The stock remained with them unsold till it was worthless. In a suit by the brokers for the money advanced by them; his defence being that they should have sold the stock, he could not testify that he believed from the letter that they would not sell without further orders from him.
    2. What the letter meant was a question of law for the court.
    3. If the brokers had sold the stock without giving further notice and it had risen, they would have been responsible.
    4. Having proved that they had purchased the stock, it was not necessary for the brokers to produce the certificate at the trial.
    6. When one purchases a chattel for another, he may sue for the money without a tender of the thing: the delivery of the thing cannot be demanded until the money is paid or tendered.
    February 16th and 17th 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 1424-, to July Term 1871.
    On the 3d of May 1866, Henry R. Linderman and others, brokers in Philadelphia, trading as Linderman, Ely & Co., brought an action of assumpsit against George W. Esser, of .Mauch Chunk, to recover from him a balance which they claimed to be due them on their purchase of stocks for him.
    W. H. Ely, one of the plaintiffs, testified, that in 1865 the defendant wrote to the plaintiffs to purchase stock for him; the letter could not be found. They bought for him 200 shares of Mingo Oil stock May 22d 1865, 1000 shares of Royal Petroleum stock May 23d, and 300 shares of St. Nicholas Oil stock May 24th 1865; they informed him that the purchase had been made; they advanced the money and were to hold the stocks as security until he paid for them or gave further orders; they sold ■ all the stocks but the Royal; the defendant had notice of the sales, they sold under his authority. They had agreed to carry the stocks for him, he to give them a margin to protect them; as' “margin,” he paid them $500 on May 20th and $200 on May 24th 1865. They had the stock put into their own names. The Royal stock became worthless; they “had a discretionary power to sell, taking care of the interests of defendant.”

      They gave in evidence two letters from defendant of July 29th 1865: one was to the plaintiffs as a firm, in which he says:—
    “ I would have replied to your first, but thought I would be able to take from my business enough money to take up the Royal, but found, owing to the great demand for coal, that it will be impossible at present, though if necessary, I could borrow it. I did not think when I asked you what deposit you required, that I would be again called upon for more money, nor that my time would be limited in holding the stocks, or I would not have been so anxious to buy. I merely ask the same privilege that is accorded to others dealing in stocks. I expect of course to be charged accordingly or what is customary. I presume you have disposed of the Mingo and perhaps the St. Nicholas. * * * You can sell my St. Nicholas at 2\ if you think there is no prospect of its going any higher, but from a letter received from a broker am inclined to believe Mingo, St. Nicholas and Royal will advance far beyond what it is. Of course I will expect you to use your judgment in regard to it, and if you think there is a probability of my stocks going up, to hold on to them for a better price.”
    The other was to Ely individually, viz.:

      “ I received two letters from L. E.. & Co. asking me to send them some money or take up some of my stocks. As I wrote them I did not reply to their first, thinking I would be able to take some money from my business to take up some, but found that I would not be able to do so owing to the unusual briskness of the trade. * * * I did not expect to be called upon again for any more money after making the required deposit, and expected to be dealt-with the same as some others of your customers.' I think ere "this reaches you, you will have disposed of most of my stocks at a good figure, which will not require me to deposit again. I hope you will do the best you can with my stocks, and if there is a probability of their going up to hold on to them for a higher figure, and not make any sacrifices for the want of funds.
    The plaintiffs gave evidence that they had bought for the defendant 1000 shares of Royal stock which was transferred to them on the 26th May 1865, and that at the trial it was utterly worthless.
    The transfer book of the company showed that such transfer had been made.
    The testimony oi.jthe defendant was that the plaintiffs were to hold the stock till he ordered them to sell; that he did not order them to sell after receiving the following letter:—

      “ Phila., Aug. 16th 1865i
    “ Geo. W. Esser, Esq.
    “Dear Sir: — You have no doubt received our notice of sale of 200 Mingo at 2| for your account; the price has since receded to 2J. Your account should be strengthened by a deposit of say $300, or you should take up- the Royal and St. Nicholas, which we hold for you. Please do one or the other at once, and oblige
    Yours truly,
    Linderman, Ely & Co.
    “ We simply ask that your account should be placed in a position that will insure us from loss. This point attended to, and we are satisfied to carry your stock, otherwise not.”
    Defendant then proposed to testify that he did not order plaintiffs to sell after the receipt of this letter, because its contents led him to believe that they would sell- without such order, if he did not comply with its demands. This was objected to by the plaintiffs, and a bill of exceptions sealed.
    He then gave in evidence the following letters:—
    “ Phila., May 20th 1865.
    “ Gr. W. Esser, Esq., Mauch Chunk, Pa.
    “ Dear Sir: — Yours of yesterday, requesting the purchase of (for your account) 1000 Royal Pet., 200 Mingo, and 300 St. Nicholas, and enclosing check for $500, as margin thereon, has been received. We have purchased for your account 200 Mingo @ 2|. Balance of order will be executed on Monday. We think that $200 more will be sufficient margin on the stocks you have ordered purchased. * * *
    Linderman, Ely & Co.”
    “ Phila., May 24th 1865.
    “ Geo. W. Esser, Esq., Mauch Chunk, Pa.
    “ Dear Sir: — Yours from Easton, enclosing check for -$200, came duly to hand. We enclose notice of purchase of 100 St. Nicholas @ 2|, which fills your order; when you want to sell, let us know your limit.
    Linderman, Ely & Co.”
    “Phila., July 12th 1865.
    “ Geo. W. Esser, Esq., Mauch Chunk, Pa.
    “ Dear Sir: — We are at this time a little cramped for funds, and would like you to take up some of the stocks we hold for you. We do not usually carry stocks over 30 days, but as we had your order to sell, we waited for them to go up, until now, and the oil market is so very dull that unless these Cos. strike new wells they will not sell until fall. You will oblige us by an early answer. Yours truly,
    Linderman, Ely & Co.”
    Phila., July 31st 1865.
    “ Geo. W. Esser, Esq.
    “ Dear Sir: — Yours of the 29th is at hand, wm note your remarks regarding the prices at which to sell your stocks. * * *

      “ It is unusual for brokers to carry stocks over 30 days for one commission and we do not do it for any one, and we are asking of you no more than we have of every one else. We cannot carry the stocks for ever for the buying commission and interest. We will not object, however, to carry your stocks if you pay us J commissions every 30 days, provided you keep your margin good. When we asked for $750, stocks were higher, this is about used up now, and we must have $500 more to secure us. We think you will see this is reasonable, and send us the money at once. Write at once and give us your decision.
    Linderman, Ely & Go.”

    Defendant made the following offers:
    The Record of Sales of the Philadelphia Board of Brokers, for 1865, for the purpose of showing that Royal Petroleum stock sold at the board during the months of August, September, and October 1865, at prices ranging from 81 cents to 50 cents a share.
    Stock Ledger of Royal Company, for the purpose of showing that plaintiffs as a'firm and as individuals, owned large quantities of the stock of said company at the time of their transaction with the defendant.
    The deposition of Frederick E. Swope, to show that Henry R. Linderman, one of plaintiffs, was an original incorporator in said' company, and the owner of a corporate interest in that company at the time of said transaction.
    The offers were all rejected by the court and several bills of exception sealed.
    The defendant testified that he had no communication with the plaintiffs after August 16th 1865, and had not heard from them till this claim was made. He gave evidence that therb had never been any stock standing in his name on the books of the Royal Company.
    The defendant’s 1st point was:
    As plaintiffs have not produced a certificate of 1000 shares of Royal Petroleum stock, nor accounted for such non-production, they cannot recover from defendant the amount they allege they paid in the purchase of 1000 shares of said stock under their contract with him.
    His 9th point was:
    As plaintiffs notified defendant July 31st 1865, that if he did not comply with his contract they would sell the stocks, and as they, upon his not complying therewith, nor answering said notice, did sell some of said stocks and notify defendant thereof, and on August 16th 1865, again notify him to the same effect as their first notice, defendant had the right to expect that upon his again failing to comply and to answer said notice, plaintiffs would do, in this second instance, what they had done under their first notice, viz.: sell in accordance therewith, without unreasonable delay.

      Both points were refused.
    The court charged: “ The transaction between plaintiffs and defendant was a purchase of shares by the plaintiffs for the defendant upon his order. The plaintiffs held a two-fold relation toward defendant; first, as agents in the buying of the stocks, and second, as lenders of money wherewith to make the purchase, — they holding the stocks as security for the advances. Under their contract the plaintiffs were not bound to sell the stocks. [There was no duty upon the plaintiffs to sell, although they might have sold, after due notice, for their own protection, or without it, if authorized to do so.] [It is said they cannot recover for the Royal without producing upon the trial a certificate for 1000 shares of it, but this is not so; plaintiffs have shown that they purchased the stock for the defendant, and paid for it, and what they paid for it. They have produced evidence of a transfer of the stock on the books of the company; and one of them swears they have the stock still on hand. This is all that they need show. If the defendant had paid the advances he might have demanded the certificate.”]
    The verdict was for the plaintiffs for $1105.50.
    The defendant removed the record to the Supreme Court by writ of error.
    The first four assignments of error were, the rejection of his offers of evidence.
    The remaining four were, declining his points and the parts of the charge in brackets.

      T. JE. McBlroy, for plaintiff in error.

      A. Briggs, for defendants in error.
    February 26th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

It certainly was not competent for the defendant to state in his testimony, what the contents of the letter of the plaintiffs, to him of August 16th 1865, led him to believe. The question was what he had a right to infer from it, and that was a question of law upon the letter itself. There was no extrinsic evidence which created any ambiguity in the language, and which would have carried the case to the jury according to Smith v. Thompson, 8 Common Bench 44. “ Your account,” says the letter, “ should be strengthened by a deposit of say $300, or you should take up the Royal and St. Nicholas which we hold for you.” And in the postscript: “We simply ask that your account should be placed in a position that will insure us from loss. This point attended to, and we áre satisfied to carry your stock, otherwise not.” It seems they did sell the St. Nicholas, but not the Royal, and the defendant took the ground below that after this letter the plaintiffs were bound to sell, and were answerable to him for what the Royal would have produced at that time. But the letter most clearly called for an answer. The defendant was asked to increase his margin or take up the stock. “ Please do one or the other at once,” said the letter. Had the plaintiffs sold without giving further notice, and the stock had afterwards gone up, they would have been responsible, according to Diller v. Brubaker, 2 P. F. Smith 498. It is nothing to the purpose that they did sell the St. Nicholas. They assumed the risk, but had a right not to do so as to the Royal, but to hold it until they should receive orders to sell. Nor do we think that it was incumbent to produce a certificate for the stock on the trial. They gave evidence by the transfer-book of the company that they had bought the stock at the time the order was given, and one of the plaintiffs testified that they had possession of the certificate. When one man lays out money at the request of another in the purchase of a chattel, he can sue for the money without any tender of the thing. It is not until the defendant has paid or tendered the sum thus laid out and expended for his use and at his request, that he can demand its delivery. He may ask the court in the exercise of its equitable powers to control the execution so as to secure to him possession of the certificate, but it is no defence against the plaintiffs, action to prevent judgment.

Judgment affirmed.


author: Agnew, J. Thompson, C. J. Agnew, J.,

text:
    Taylor versus Young.
    1. Barnet made a mortgage and died in 1868 ; in April and May 1869, a scire facias and alias were issued on the mortgage ; both were returned “nihil;” in June the death of Barnet was suggested; in July judgment was entered on the two “ nihils,” the land was sold under a levari without warning the personal representative of Barnet. Held, that the sale passed a .good title to the mortgaged premises.
    2. Two returns of “ nihil” to successive writs of scire facias on a mortgage are equivalent to “ scire feci,” whether the mortgagor he living or dead.
    3. The death' of the mortgagor cannot be averred against the judgment.
    4. The maxims “ In fietione juris existit esquitas,” and “ utile per inutile non vitiatur,” applied.
    5. Under 33d sect, of Act of February 24th 1834 (Decedents), notice to the personal representatives of decedent is not necessary after judgment on a mortgage, before issuing execution.
    6. Cadmus v. Jackson, 2 P. F. Smith 295 ; Chambers v. Carson, 2 Whart. 365 ; Wood v. Colwell, 10 Casey 92, remarked on.
    February 19th 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 143, to Julv Term 1871.
    This was an action of ejectment, brought May 14th 1870, by Richard Young against Sarah Taylor, for real estate in the Fifth ward, Philadelphia.

      The plaintiff claimed as purchaser of the land at sheriff’s sale as the property of-Robert Barnet, Jr.; the defendant defended as the guardian of the minor children of Barnet, who was dead, alleging that the title of Barnet had not passed by the sale, because he, being dead at the time of the judgment, no process had been issued to warn his representatives before execution had been issued.
    The case was tried April 12th 1871, before Stroud, J., when it appeared that Robert Barnet, Jr. executed a mortgage of the pre- . mises to Robert Barnet, senior dated February 25th 1857; the mortgage was assigned May 15th 1858, to Alexander Gibson:— Richard Barnet, Jr. died in possession of the premises on the 14th of July 1868. On the 16th of April 1869, Gibson as assignee, issued a scire facias on the mortgage against Robert Barnet, Jr., which was returned “ Nihil.” -On the 5th of May 1839, an alias scire facias, Gibson, assignee of Barnet v. Robert Barnet, was issued, which was returned “ nihil.” ' On the 10th of June 1869, the death of Robert Barnet, Jr. was suggested on the record. On the 3d of July 1869, judgment by default was entered for the plaintiff on two returns of “nihil.” To July Term 1869, a levari facias was issued; to September Term 1869 an alias levari was issued, and to December Term 1869 a pluries levari facias; each without warning the personal representatives of Barnet. Under the last writ the premises were sold by the sheriff to Sarah Taylor the plaintiff, and the deed acknowledged February 12th 1872.
    The defendant asked the court to charge: “ Sheriffs’ vendees buy at their peril. Not only must there be a legal judgment, but a legal execution also to make a sheriff’s sale valid, and therefore if the jury find that the writ of execution issued.subsequently to Barnet’s death, without bringing in by sci. fa. his personal repre- ' sentatives, the execution was void. Young took no title, and the verdict must be for the defendant.”.
    The court answered: — ■
    “ I decline to charge as requested by the defendant. If you believe the evidence of the plaintiff, he has shown title in him, and the defendant has neither shown title iron any reason why the plaintiff should not recover.”
    The verdict was for the plaintiff.
    The defendant took a writ of error’, and assigned the charge of the court for error.

      T. F. Jenkins and I. W. Brown (with whom was T. B,. Flcock), for plaintiff in error,
    cited Wood v. Colwell, 10 Casey 92; Cadmus v. Jackson, 2 P. F. Smith 295; Act of 24th February 1834, § 33, Pamph. L. 77; 2 Bright. Purd. 425, pl. 101.

      J. M. Pile, for defendant in error,
    cited Warder v. Tainter, 4 Watts 270; Hartman v. Ogborn, 4 P. F. Smith 120; Colley v. Latimer, 5 S. & R. 211.
    March 4th 1872,
   The opinion of the court was delivered, by

Agnew, J.

If this case stood upon the aspect of the judgment alone, after a return of two nihils, it would be governed by Warder v. Tainter, 4 Watts 270, and Hartman v. Ogborn, 4 P. F. Smith 120. The return of nihil habet to two successive writs of scire facias are held to be eqivalent to a return of scire feci; and scire feci implies that the defendant is alive ; for otherwise the sheriff ought to have returned mortnus est. This is purely technical, but it is necessary to protect persons buying at sheriff’s sale on the faith of the judgment. The technicality, however, cannot reach beyond this immediate purpose of supporting the judgment in a collateral proceeding. To cany the presumption of life beyond the judgment and into the execution, would defeat the express prohibition of a statute, overturn the system provided for the estates of decedents, and disregard our own recent decisions. Robt. Earnet, Jr., died before the levari facias issued in this case; Indeed, his death was suggested on the record three weeks before the entry of judgment, and ought to have prevented judgment. This, however, is immaterial, as we have seen the presumption of life lasted until the judgment was entered, and the suggestion is mentioned only as showing that the fact of his death was well known. The fact that he was dead when execution issued, is one which no art can hide, or fiction should withhold from the judicial mind; unless we choose to be judicially blind and refuse to see the statute which stares us in the face. This we cannot do. The 33d section of the Act of 24th of February 1834, has received a judicial interpretation heretofore in Cadmus v. Jackson, 2 P. F. Smith 295. The portion which concerns us reads as follows: “ No execution for the levy or sale of any real or personal estate of any decedent shall be issued upon any judgment obtained against him in his lifetime, unless his personal representatives have been first warned by a writ of scire facias to show cause against the issuing thereof, notwithstanding the teste of such execution may bear date antecedently to his death.” It is obvious that the case of a decedent, actually dead, but technically alive at the time of judgment, cannot be worse off than that of one alive at judgment but dead before execution. On the contrary, it demands the benefit of the statute more strongly than the latter, for had the personal representative been warned, he might have had the judgment reversed or set aside, and thus prevented a sale and sacrifice. Of this section the revisers said in their report: “ It is intended to abolish a fiction of the courts, and to prevent the inconvenience and injustice which might happen from the levy of an execution upon the estate of the decedent without notice to his executor or administrator.” The 33d section does not stand alone, but in the midst of a series of sections from the 26th to the 36th, which make a perfect system for the prosecution and defence of actions and executions, after the death of a party, evincing the mind of the legislature, to draw a broad boundary between the estates of the living and the dead. Indeed this characterizes the whole Act of 24th February 1834. In this the law follows nature. As the green tree, growing, expanding and yielding its fruit, differs from the dead trunk, which lies and decays where it falls, so the estate of the living differs from that of the dead man. The estate of the latter drops into a fixed and unalterable mould; new rights attach, new agents begin to act, and new rules tonegulate it. The intention to protect the estate after death from the pursuit of creditors seeking individual success at the expense of each other, and of the heirs, legatees and next of kin, is further developed in the 34th, 35th and 36th sections, which require notice of claims to the parties in interest, enjoin against execution at common law, and remove the sale and settlement of the real as well as the personal estate into the Orphans’ Court. It is only by a view of this entire statutory system we can really comprehend the full force of the decision in Cadmus v. Jackson, supra. It is there held under the 33d section, that execution cannot issue against the estate of a deceased defendant until his personal representatives have been warned by a scire facias. Said C. J. Woodward, “It is not a case of irregular process, but it is a defect of power to take any process of execution before scire facias, and nothing can be more imperative than the denial of this power. Then it is the case of void process, for surely that which is expressly forbidden by law must be void process.” Again, he says, “ sheriffs’ vendees buy at their peril. Not only must there be a legal judgment but a legal execution also, to make a sheriff’s sale valid.” Cadmus v. Jackson is a well-remembered case, and was argued elaborately, and the opinion carefully written. The invalidity of the execution is supported also by the case of Wood’s Executors v. Colwell, 10 Casey 92, holding that if the defendant die after a levy and condemnation under a testatum fi. fa. no venditioni exponas can issue thereafter without a scire facias against his personal representatives. The court below drew a very plausible distinction between a venditioni exponas following the writ on which the levy is made, and a writ, such as a levari facias, which commands the immediate levy and sale of the premises; but this court held that the venditioni exponas, being a writ for the sale, fell. directly within the 33d section of the Act of 1834. In this case, therefore, unless we set at nought the statutory system for the regulation and settlement of the estates of deceased persons, and overrule a solemn decision of this court, made only six years ago, we must hold that the sale in this instancé, under the levari facias, without a scire facias first to bring in tbe personal representatives of Robert Barnet, Jr., is void, and that the court below erred in holding differently.

I. iV. Brown (with whom were T. F. Jenkins and T. B. Fl-cock), for plaintiff in error.

J. M. Pile, for defendant in error.

Gf. W. Biddle (with whom were W. IT. Rawle, S. Wharton and F. K. Price), for the petitioners.

The judgment is reversed and a venire facias de novo is awarded.

A petition of persons not interested in this particular case, was afterwards presented to the Supreme Court, representing that the result of such an application of the 33d section of the Act of February 24th 1834 as was declared in the foregoing ruling of the court, would tend to unsettle titles, &c. The Supreme Court thereupon ordered that the case should be again argued.

It was reargued at Harrisburg, May 28th 1872, before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

Opinions were delivered by Thompson, C. J., and Agnew, J., both of which were directed to be reported.

The opinion of the court was delivered, July 3d 1872, by

Thompson, C. J.

It has long been settled in this state that two returns of nihil to successive writs of sci. fa. sur mortgage, are equivalent to a return of scire feci: Warder v. Tainter, 4 Watts 274; Chambers v. Carson, 2 Wh. 365; Compher v. Annewalt, 2 Watts 490, and this whether in fact the mortgagor were dead or alive. So in principle is Ogborn v. Hartman, 4 P. F. Smith 120. There is no diversity of opinion about this on this bench. It results as Kennedy, J., said in Warder v. Tainter, from the application of the practice at common law in revivals of judgments post annum et diem. The Act of 1705, which regulates proceedings to foreclose mortgages, gives the scire facias as the appropriate writ for the purpose, and the practice since the passage of the act, one hundred and sixty-seven years ago, has made it effective by two returns of nihil when there could be no personal service on the mortgagor. Judgments had thereon, consequently are and always have been, conclusive of the life of the mortgagor at the time of the returns, so that the contrary is not permitted to be averred as against the judgment. It may be granted that this is a fiction, but in fictione juris cequitas existit. This presumption was necessary in order to give entire efficiency to the Act of 1705. The preamble of the act sets forth its purpose and the reasons for its enactment, viz.: That “ divers persons have mortgaged lands and tenements in this province for securing the payment of moneys, and some of them have died before the time of payment, and left others to succeed them, and these have proved insolvent, and others have neglected to pay the mortgage-money, and so mortgages have become no effectual security,” &c. The act was therefore passed to remedy and meet each and every of these contingencies, and the scire facias sur mortgage was given as the process.

It was designed as a remedy against the mortgaged property equally in cases of inability to pay, or of neglect, or death. Of course the proceedings being substantially in rem, it became necessary to give the process which in form is in personam, the effect of a personal service. This was a fiction to be sure, but necessary, as just said, to give full effect to the Act of 1705. It was a remedial statute and to be construed and executed so as to remedy the evil calling for its passage.

In the case in hand, no difficulty exists about the entire soundness of the judgment, notwithstanding the death of the mortgagor suggested on record: Warder v. Tainter, supra. The two nihils overrule the effect of that. The judgment given was, therefore, as legal and valid, as if it had been obtained on personal service.

Just here, however, it is thought a difficulty arises upon the plaintiff’s title, the scire- facias for the sale of the mortgaged premises having issued without proceedings under the 33d section of the Act of 24th February 1834.

That section reads that “ no execution for the levy or sale of any real or personal estate of any decedent, shall be issued upon any judgment obtained against him in his lifetime, unless his personal representatives have been warned by a writ of scire facias to show cause against the issuing thereof, notwithstanding the teste of such execution may bear date antecedently to his death.”

The generality of these words creates a seeming difficulty, at least, in regard to the sale of the mortgaged property in this case, without an observance of the provisions of this section. But from the nature of the provisions of the Act of 1705, and of the purposes of the remedy therein provided, as declared in the preamble; and the object and purpose of the 33d section of the Act of 1834, already referred to, we think we are mainly relieved of difficulty on this point. Indeed by reference to decisions of this court subsequently to the passage of the Act of 1834 on the very question before us, we think we may consider ourselves entirely relieved.

The object and purpose of the provisions of the 33d section of the act as explained by the revisers themselves in their report, 2 Park, and John. 758, was “to abolish a fiction of the courts,” namely, that executions have relation to and are tested as of the first day of the preceding term, although in fact issued subsequently, and even after the death of the decedent. This fictitious teste put it in the power of a judgment-creditor by execution to sweep away all decedent’s personal property, for the lien of the execution would be coeval with its teste. This was subversive of the equitaable rule of distribution among a decedent’s creditors provided by the Act of 1794. The incongruity was first noticed by the court in Leiper v. Levis, 15 S. & R. 108, and the 33d section of the Act of 1834 was framed by the revisers to give legislative force to the suggestion of the court and to remedy the mischief. The revisors say that this was the object of the section: vide Park, and John. Dig. sup. The section was therefore not intended for cases in which the mischief could not exist, namely, to specific liens in the nature of mortgages. In such a case the execution has no operation as lien or a process of seizure, it is simply an authority to sell the pledged estate, after it has been judicially ascertained that the period of redemption has expired. Certainly we are not to give the section an application to a purpose not intended. It is not so said in the act, and we think it is not so by necessary implication. It is fhir to presume that the section was adopted by the legislature for the reasons given by the official revisers and framers of it. It is not a conclusive presumption, it is true, but it is a reasonable one. Thus we see the purpose of the section, and that it did not look to proceedings for the foreclosure of mortgages.

How stand the decisions of this court on the applicability of the section to the case in hand, and cases of like nature ?

Chambers v. Carson, 2 Wh. 365, was the case of a judgment sur mortgage post two nihils, followed by a levari facias and sale. An application was made to this court to set aside the judgment and the levari, on the ground of the death of the mortgagor prior to both, because proceedings under sections 33 and 34 of the Act of 1834, had not been taken, viz., to warn the decedent’s personal representatives, and to call in the widow and heirs; these were distinctly the questions of the case. At Dec. Term 1836, the opinion of the court on these questions was delivered by Kennedy, J., who after his usual thorough examination, gives the conclusions of the court on the questions thus: “ This being a proceeding upon the mortgage according to the Act of 1705, it is also therefore considered as not coming within the provisions of the 25th, 33d and 34th sections of the Act of the 24th of February 1834, which have been referred to by the counsel of the defendant, in order to show that the course adopted and pursued here falls short of what ir required by these sections. The sci. fa.’s in that case issued after the passage of the Act of 1834. The fact that they were writs of sci. fa. post annum et diem upon a prior judgment sur mortgage makes no difference in principle.” In M’Millan v. Red, 4 W. & S. 237, this decision was cited approvingly and applied to the case then in hand. Rogers, J., in delivering the opinion of the court shows why and wherefore the 33d section of the act was passed, and says it was drawn in conformity with the views of this court in Leiper v. Levis, to which we have already referred. After citing Chambers v. Carson, the learned judge goes on to say, “ in that case it is ruled that a scire facias on a mortgage is not within the section (the 34th), and that it is not necessary to make the widow and heirs, or devisees, parties.” “It frequently happens,” he adds, “that from want of due precision in the language of Acts of the Legislature, or from some intrinsic difficulty arising from the subject of the enactment, different interpretations are given, not without plausible arguments in various judicial districts ; and when this is the case we feel ourselves bound to avoid that interpretation which tends to unsettle titles.”

The point of this decision is, that where the judgment is obtained in the lifetime of the decedent, which is the case on a return of two nihils, the widow and heirs need not be brought in in order to charge the real estate, and it also recognises the authority that holds that section 33 of the Act of 1834, is not applicable to executions on mortgages, shadowing forth the duty of courts where a statute may be subject to diverse constructions, viz.: That that one shall be adopted which will not disturb titles, which might occur under a different construction. If these sections are followed in eases where they are not required to be followed, and the widow and heirs are brought in, and the personal representatives are warned, when not necessary, the title is not affected thereby, for utile per inutile non vitiatur. But quite different would be the consequence where enough has not been done to, make a complete title.

We are of opinion that the title is good in this case without a garnishment of the personal representatives of the mortgagor. There is an essential difference, we think, between a judgment and execution on a mortgage, and where the judgment is general and the execution operates in the first place on personalty. This we have already referred to. We have evidence in the books that the rule herein claimed based upon this difference, not only exists by the authority of this court, but by the practice in other courts. In Hare v. Mallock, 1 Miles 268, and Dundas v. Leiper, 1 Phila. 569, this is shown clearly; the last case shows the practice explicitly. Unchallenged, these cases, supported as they were by the rulings of this court, would fix a rule likely to be implicitly followed. In the District Court of this city, where suits on mortgages are more frequent than in all the courts of the city, the practice would soon permeate the system, as we are assured by eminent counsel it has done, entering as an element into vast numbers of titles, which, if changed by a decision of this court, would disturb, and perhaps, totally destroy many which have rested on the authority of the practice established by the courts. We ought, therefore, like our predecessors, even if the practice since the Act of 1834, in cases like this, were more doubtful than we regard it to be, to avoid that interpretation of the law which would disturb titles resting on the faith of judicial decisions: Menges v. Dentler, 9 Casey 495.

The plaintiff in error opposes to these views, and to the cases referred to, two other decisions of this court, viz.: Wood v. Colwell, 10 Casey 92, and Cadmus v. Jackson, 2 P. F. Smith 295. It does not appear by either of these cases, that any change of the existing practice under the Act of 1705, as affected by the Act of 24th February 1834, was at all intended or contemplated. I do not regard the question as necessarily involved in either. It is not so said or argued by court or counsel; an analogy is all that is relied on to overturn precedent practice on the most vital point. The first of these cases arose on a testatum ,fi. fa. on a judgment upon an ordinary bond. Before the testatum vend, was issued the defendant died. The District Court of the city was of the opinion that a scire facias under the 33d section of the Act of 24th February 1834, to warn the personal representatives of the mortgagor in the case, was not necessary; this court held differently, and somewhat hesitatingly, it would seem from the wording of the per curiam opinion, reversed the order for the venditioni exponas. It was a debatable matter at best, under the decisions, but at all events, it was not process under the Act of 1705, providing for the foreclosure of a mortgage, which is a different thing in our opinion. The other case cited is Cadmus v. Jackson, which we think is also distinguishable in principle from the case in hand. Like the last, it did not arise on process for the sale of mortgaged premises, but was an execution on a judgment under the Act of Assembly for registered taxes. The fact is, the taxes had been paid; still there was a judgment remaining unsatisfied, and this was sufiicieht to support the sale. The property, which was valuable, was sold for $20. Young was dead when the writ issued, died in January 1860, and the writ of levari facias issued in February, without a sci. fa. to warn his personal representatives, and the property sold, as just stated. After this there was an order of sale by the Orphans’ Court of the same property as Young’s estate, and it was sold to Cadmus for $2725; this court held that the tax sale was void for want of a garnishment of the personal representatives of Young. I shall not discuss the point, whether it ought to have been declared void or voidable. I will consider the decision all right at present, on its own facts. All cases should be so read, and fewer errors would be committed by judges and lawyers. This was eminently the doctrine of the learned judge, who gave the opinion. The question in our case is not ruled by this decision; it was a different proceeding under different laws. We do not feel bound by a supposed analogy between the proceedings; the one was a sale of valuable property for a trifle of taxes; the case in hand is a sale under the Act of 1705, enacted, to make mortgages, as it says, a better security for money. Let tbe last cited case stand for tbe class to which it belongs, but let it not become an aggressive principle where it is alien. It is very clear on authority (see supra), and the practice, that the 34th section of the Act of 1834 is not applicable to judgments on mortgages, and by parity of reason, neither is section 33. So on the authorities: Warder v. Tainter, and Chambers v. Carson, supra. But as already said, the application of the section, if it had been possible, would not here have hurt the title, but was not necessary. We might refer to various other grounds set up against the plaintiff in error, but we regard the views above presented as sufficient. We feel sure that in the restricted sense of the Act of 1834, which we have given as regards proceedings on mortgages under the Act of 1705, we are in harmony with the practice heretofore on the subject, leaving undisturbed titles originating under it, and also saving intact, the act in its application to general judgments operating indiscriminately, on both personal and real property and executions thereon.

Our silence on the subject of ground-rent covenants is not to be construed into an adjudication that we think that a different principle is to be applied to judgments obtained thereon on two nihils ; we do not deal with the point, because it is not before us in this record.

Judgment affirmed.

Agnew, J.,

“in support of the former opinion of the court.”

This case was decided by three of us in February last, Judges Thompson and Read being absent. A re-argument was ordered, and our first decision is now to be overturned. One ground of reversal, is a supposed distinction between a judgement sur mortgage after a return of two nihils, and other judgments. It is therefore said that the 33d section of the Act of 24th February 1834, does not apply to the case of a judgment upon a mortgage. But that section has reference to the execution only, and a judgment sur mortgage is directly within its letter, and as I shall show, within its spirit also. The section is broad, express, and unqualified, and in these words: “ No execution for the levy or sale, of any real or personal estate, of any decedent, shall be issued upon any judgment, obtained against him in his lifetime, unless his personal representatives have been first warned by a writ of scire facias, to show cause against the issuing thereof, notwithstanding the teste of such execution may bear date antecedently to his death.” The purpose of this law is to prevent the robbery of dead men’s estates, by means of extinguished or satisfied judgments of any kind whatever, raised up by vampire claimants, for purposes of fraud. It is intended to reach such violations of the rights of the dead of which this court said: “ It is but a small matter in such a robbery as this case presents, wrhether the debt of $60 has been paid once or twice before tbe proceedings on tbe sci. fa., which have ended in taking from the heirs of Nixon their whole property, and putting it in the pocket of one who had no claim on their ancestor:” Fetterman v. Murphy, 4 Watts 424. It is perfectly clear to an impartial mind, that in the letter, the spirit and the reason of the act, it makes no difference whether the judgment, on which execution issues to sell a dead man’s property, was on a mortgage, a mechanic’s claim, a bond or other debt. It is the debt which the law regards, not its form. Each and every form is capable of ex-tinguishment and satisfaction. A sale on an accompanying bond, or on a prior lien will extinguish the mortgage ; or the party may payit. Is the debt just? That is the question. The lips that once could answer are now sealed to human call. They can answer only at another bar. Thrusting its shield before the face of rapacity and fraud, and speaking in the tones of justice and mercy, the law says to us, a dead man’s estate shall not be sold without a warning to those who succeed to his rights. Why then should we not follow our first decision? Wherein does a mortgage-debt differ from a judgment-debt, a mechanic’s lien, or a recognisance? We have repeatedly decided that the registry of a mortgage is not a record; and the plea to it is non est factum and not nul tiel record. But a judgment in the Common Pleas, whether by trial, by confession, default or nil dicit, is a true record. On what principle of law or good sense shall such a judgment, or a judgment of revival upon two nihils, be within the law forbidding the execution without warning the personal representatives, and yet a sci. fa. sur mortgage on two nihils shall not be ? Can any one point out a reason why the registry of a mortgage stands higher than the record of the Common Pleas ? Or why the judgment of revival of a judgment after two nihils is not eqtial in grade to a judgment on a mortgage after two nihils ? It is said that the latter is a proceeding in rem. So much the greater reason that the personal representatives should be warned if the dead man had no notice. But by the express terms of the Act of 1705, the sci. fa. must be served on the heirs, executors or administrators, when the mortgagor is dead. The demand under the Act of 1705 is therefore personal, and the 33d section of the Act of 1834 applies directly to the case. Can any one tell me what inferior virtue there is in a judgment on a mechanic’s claim, or a revival of a judgment on a bond, after a return of two nihils, or what superior force a return of two nihils has in the case of a mortgage ? Let me take a test case; a judgment in debt on a bond secured by the mortgage after actual service, and a'judgment sur mortgage for the same debt, after a return of two nihils. They are for the same thing. In one the man was actually warned, in the other he was not. A sale on the bond debt will discharge the judgment on the mortgage: 7 Watts 675; 8 Id. 215. Why should the judgment on the bond be within the law, and the judgment on the mortgage be taken out of the act by mere judicial construction ? There is no inferiority in the bond judgment. It is a true record debt, and was obtained after actual service by trial or confession; while the mortgage judgment is without notice, and is founded on a mere implication of service. Can any logic be less convincing than that which makes two nihils better than service, or ranks a default higher than confession or trial ? The attempt at distinction, it seems to me, is almost grotesque. Tou cannot sell a dead man’s estate, not even his fugitive personalty, if he were actually served and alive at the judgment; but you may sell his realty, the very house over the heads of his widow and infant children, if he was not served, and was dead and unconscious of the proceedings when two nihils were returned. Such is the wonderful power of two nihils. Admirable logic. The estate of the man naturally alive at the judgment is protected by the law, but that of the naturally dead and only constructively alive, is outlawed. This may be law; but I cannot consent to rob a statute of its plain meaning, or my judgment of its candor, or to overturn two previous decisions of this court, on such reasoning. When the law speaks to us in the voice of the statute and of two decisions, and says a dead man’s estate shall not be sold without first warning his personal representatives, I feel that I cannot disobey this plain command. In such a case, stare decisis is a maxim as sound as it is safe.

It is said in the next place that the practice in Philadelphia has not conformed to the law. But where is the evidence of .such a general custom ? ' No cases have been collected to sustain the assertion. No trace of such a practice has been cited to us from the digests, from the local decisions, or from the records of the courts, except a single case, that of Wood v. Colwell, where this court twelve years ago corrected the decision, and made it conform to the statute : 10 Casey 92. The counsel assumed to speak for the whole state. But with a knowledge of the practice ever since the statute was enacted, I have never heard of a distinction between a mortgage and other record debts in regard to selling the estates of dead men. If in Philadelphia a general custom has prevailed contrary to the statute, I would regard it as within the maxim communis error facit jus. But for the very best of reasons I cannot concede a general custom. The bar of Philadelphia is too learned and intelligent to admit of it. Such a bar would not overlook the language of a statute so distinct, so positive and unqualified; framed by eminent revisers of their own number, and referred to in their comments on the act, as intended to abolish a fiction, and to prevent inconvenience and injustice. The Act of 1834 has been thirty-eight years on the statute book, and if such a practice had prevailed there would have been gentlemen to test it long ago. They were invited to do so by Wood v. Colwell, supra, decided in 1859, and Cadmus v. Jackson, 2 P. F. Smith 295, decided in 1866, giving to the statute a contrary interpretation. When a genuine practice or general custom has prevailed there is no difficulty in producing the proof. The industry of counsel procured a list of nine hundred acts to establish a particular usage in Norris v. Clymer, 2 Barr 277. It is not credible that any general usage, as to mortgages, has prevailed contrary to the words of the act and the decisions of this court, and yet no lawyer has been found to put. in a protest, and bring the practice up to be reviewed, before the present time. Among so large and learned a bar how could such a practice prevail in the teeth of a statute without objection ? I can readily conceive, that for a purpose, or by a blunder, some properties have been sold in this way; and that a decision of this court will be a convenient mode of assuring the title. But it is not our place to make laws to correct professional mistakes. I prefer, myself, not to stand as a voucher to such a common recovery. Standing on the time honored maxim, stare decisis, I cannot regard this decision as a precedent to be followed hereafter, against the letter and spirit of the act, and our two former decisions.

The foregoing was written before I heard the opinion of the Chief Justice. With great respect and just deference to the learned Chief Justice, I must say his opinion is unsatisfactory to my mind, in point of logic and logical accuracy, though, like everything from his able pen, it is not without seeming force. But when the Chief Justice applies Warder v. Tainter, Chambers v. Carson, Hare v. Mullock, and other cases of the same class, to the question before us, he is not borne out by the cases themselves. That question has no reference to the judgment on the mortgage, and the effect of two nihils, but relates simply to the right to issue execution against the property of a deceased mortgagor without warning his personal representatives by scire facias. It is evident that in Chambers v. Carson, the ease most relied on by the Chief Justice, as to the execution, he was misled by what Justice Kennedy said were the objections made under the twenty-fifth, thirty-third, and thirty-fourth sections of the Act of 1834. There was no decision upon the 33d section, for the best of reasons, the plaintiff had complied with its provision by issuing his sci. fa. against the personal representatives. The decision was on the 34th and 39th sections. See the first report of the case where the parties defendant are named: 2 Wharton 9. This is referred to in the first line of the second report on p. 375; and also by the counsel on pp. 368, 369. Messrs. Bayard and Sergeant said:— “ Then as to the Act of 1834 referred to: in the first place it cannot control this case, for it did not go into operation until the first of October 1834, whereas the first writ of sci. fa. was issued in May and returned in July 1834, and the alias necessarily conformed to it. But if any part of the act could apply it would be the 33d section, which requires a sci. fa. to issue to the personal representatives, as was done in this case, and not the 34th, which applies only to cases of actions originally brought against executors, &c., where the land of the decedent is to be charged; and not to the case of a sci. fa. on a judgment against the decedent in his lifetime, or upon a mortgage given by him.” Thus Chambers v. Carson does not touch the question before us in the remotest degree, and the argument founded upon it is a mistake.

Equally inapplicable is the case of Hare v. Mullock, 1 Miles 268. The decision there was that the publication required by the 34th section of the Act of 1834 did not apply to a sci. fa. sur mortgage. The reason is obvious, and is that given in the extract of the argument of counsel above in Chambers v. Carson, to wit, that the 36th section applies only to original actions against the personal representatives alone when it is intended to charge the real estate; while in the case of a mortgage the real estate is already charged. There is not a word in the case to recognise the fallacy that the personal representative is not to be warned before execution, in order that he may show extinguishment or satisfaction of the mortgage. Both the Act of 1705 and 1834 require this.

Dundas v. Leiper, 1 Phila. 569, is quite as wide of the mark. There the question arose on the 35th section of the Act of 1834, giving power to the court to stay execution until an application should be made to the Orphans’ Court, for a sale by the executor or administrator. The decision is not upon the 33d section, and is questionable on the 35th section, for the reasons for staying a forced sale on a levari facias until a sale should be made on the more beneficial order of the Orphans’ Court, are quite as applicable to judgments on mortgages as to any other judgments. In not a single case has it been decided that the 33d section relating to the execution is inapplicable to a levari facias on a mortgage. The present decision stands, therefore, where I have placed it, as contrary to the letter and spirit of the section, and to the interpretation put upon it by this court in Colwell v. Woods and Cadmus v. Jackson.


text:
    Weist and Myers versus Grant.
    1. Weist, without inspection, bought from Hickcox and Coryell, the owners, silver mines, upon their representation that they would yield a certain amount; the contract to be void if Weist should not approve the report of a selected assayer. After the report, Weist paid a large part of the purchase-money ; on working the mines by Weist, the product was only one-third of the representations. Held, that Weist was, liable for the remainder of the purchase-money, unless the misrepresentation was intentional.
    2. Weist having bargained for the report of an assayer before being bound by the contract, and having acted on it, and there being no collusion or fraud, he was estopped from alleging misrepresentation in the inception of the contract.
    3. Weist was garnishee in a foreign attachment against Hickcox : in the scire facias on the attachment, there could be a recovery Without first ascertaining the specific interest of Hickcox.
    4. Primfi'facie the interest of the vendors was equal.
    February 19th 1872.
    Before A&new, Sharswood and Wil-LiAMsj JJ. Thompson, 0. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 157, to July Term 1871.
    This was a scire facias issued June 26th 1869, by Fanny Grant against John Weist and Andrew W. Myers, garnishees of George Hickcox. The plaintiff recovered in the foreign attachment a judgment against Hickcox for $3836.82.
    The scire facias was tried, April 4th 1871, before Hare, P. J.
    The plaintiff gave in evidence an agreement, executed in Philadelphia on the 26th of June 1867, “ between Dr. George Coryell of Colorado, &c., herein acting in his own right, as well as attorney in fact for George Hickcox and William M. Power, both of Colorado ' aforesaid, duly constituted, &c., of the one part, and John Weist and Andrew W. Myers, both of the city of Philadelphia, aforesaid, of the other part.” By the agreement it was contracted to sell to Weist and Myers, for the ‘consideration of $80,000, certain land in Colorado territory, containing the Franklin and five other silver lodes, which were named in the agreement, with appertenances specified; $10,000 to be paid within ninety days after a satisfactory report from Professor Bruckner, assayer, &c., and the remainder at subsequent times as set out in the agreement; the last payment, being $35,000, to be paid in one year after Bruckner’s report, which was to be made as soon as practicable to “Weist and Myers, which report is to be subject to their approval, and if not satisfactory, or approved of by them, then this agreement to be void and of no effect, otherwise to be and remain in full force, and to be consummated.”
    They gave in evidence also a report, from Bruckner and two other assayers, giving a somewhat detailed description of the two lodes, but not expressing a decided opinion as to the value of the lodes. Weist, garnishee, was called hy plaintiff, and testified that they had received the report in less than a year after the date of the agreement, and that they had paid between $30,000 and $40,000 of the purchase-money. The plaintiffs then rested.
    The garnishees called Weist, who testified that in the negotiation Coryell showed reports from different persons, which stated that the lodes contained about $140 of gold and silver per ton, and represented that the product would be greater than the reports: thatdn other respects the lodes were of great value.
    On cross-examination the witness said that he had been in the mining business for four or five years; that he had not seen the land before he purchased, but that Myers had.
    The garnishees then gave in evidence the reports which had been exhibited by Coryell at the time of the negotiation, and also evidence that the ore from the lodes as ascertained by assays would yield not more than between $40 and $50 per ton, and that in other respects the lodes were of inferior value.
    The plaintiff read the answers of the garnishees to the interrogatories in the case; in these they said that they had paid $54,000 on the contract, and that there were still due $26,000; that no settlement had been made or account stated between the vendors; that their interest was undivided, and garnishees did not know the amount due to Hickcox, and claimed that by reason of the misrepresentations made by Coryell, the vendors had been overpaid; that Coryell and Hickcox had taken out large quantities" of ore before the contract and knew what the yield would be; that by works erected since their purchase, it had been demonstrated that the ore would not reach $50 per ton.
    The garnishees requested the court to charge:
    1. That if the jury believe a misrepresentation of a material fact was made by George Hickcox, or his agent, of an occult quality of the mineral properties purchased by defendants, and that said misrepresentation was the inducement to purchase, they must find for the defendant.
    2. That if the jury find that the defendants were induced to purchase the mineral properties in question, from George Hickcox, through an assertion of the vendor or his agent of a very material fact, which turned out to be false, and as to which the vendees had no means of obtaining correct information, that the defendants are entitled in this action to a deduction from the price agreed to be paid, to the amount of the difference between the value of what they received, and what they thought they purchased.
    3. That the plaintiff having shown that if any money is due from defendants as garnishees to George Hickcox, that it is due to said Hickcox and third parties jointly, and nothing appearing to show the state of the partnership accounts as between the partners, or the solvency of the partnership, so as to enable the jury to decide that any precise or certain sum is due the said Hickcox individually, this action must fail.
    The court charged: “The material question in this case is, whether the original vendors were guilty of fraud in the sale ? and it is alleged on the part of the garnishees that the representations as to the extent and value of the ore were false.
    “ If they were false, and the vendors knew it, it might be a defence, as for instance, if there was a representation that the ore was worth $150 per ton, and it was only worth $50 per ton.
    “ To constitute a defence on the ground of fraud, it must notpnly appear that the statements made were not true, but that the party who is charged with the fraud knew them to be false.
    “ I do not know that Prof. Bruckner’s report should stand against the evidence that the ores were not worth so much according to the assay.
    “If Prof. Bruckner could be honestly deceived, the vendors might be, although it is difficult to believe they could have been deceived to that extent. The report is a circumstance in the case, but not conclusive. If the vendors intended to mislead, it is not an answer that another labored under an honest misapprehension on the same points.
    “ The question in this case is for the jury. If the vendors falsely and knowingly deceived the defendants as to a material point, then your verdict should be for the defendant; but if the transaction was a fair one, and the defendants were not misled, then your verdict should be for the plaintiff.
    “ I decline to charge as requested in the fourth point of the defendants, and the other points are sufficiently'answered in my charge.”
    The verdict was for the plaintiff for $4086.21.
    The garnishees took a writ of error, and in several specifications assigned the charge of the court for error.

      B. F. Fislier and 1). W. Sellers, for plaintiffs in error.
    The quality of the ore was occult; if therefore there was mispresentation in regard to it, the vendor was responsible, although unaware of the truth: Fisher v. Worrall, 5 W. & S. 478; Watts v. Cummins, 9 P. F. Smith 84; Miles v. Stevens, 3 Barr 21; Geiger v. Cook, 8 W. & S. 266; Gibson v. The Union Rolling Mill Company, 3 Watts 37. The vendees did not get what they bought, although it was worth one-third of what was represented: Pennock v. Tilford, 5 Harris 456. There could be no recovery until it was ascertained whether Hickcox had an interest, and this could be only by knowing the state of accounts between him and his fellows: Strock v. Little, 9 Wright 416; Knerr v. Hoffman, 15 P. F. Smith 129; Winston v. Ewing, 1 Ala. 129; Fisk v. Herrick, 6 Mass. 371; Upham v. Naylor, 9 Id. 490; Haws v. Waltham, 18 Pick. 451; Snyder v. Gorham, 1 Gallison (R. I.) 367; Church v. Knox, 2 Conn. 514; Johnson v. King, 6 Humphreys (Tenn.) 233; Kingley v. Miss. Fire Co., 14 Mo. 465; Town v. Leech, 32 Vt. 747.

      J. M. Pile and T. J. Ashton, for defendant in error.
    Actual fraud and misrepresentation are for the jury: McKibbin v. Martin, 14 P. F. Smith 352; Burr v. Todd, 5 Wright 207; Huntzinger v. Harper, 8 Id. 204. Reconveyance should have been tendered: Pearsoll v. Chapin, 8 Wright 9. The means of knowledge were accessible to vendors: Kintzing v. McElrath, 5 Barr 467. The vendors not being partners, but tenants in common, and their shares ascertained and distinct, foreign attachment would lie. In a partnership in a single transaction' assumpsit will lie: Knerr v. Hoffman, 15 P. F. Smith 128; Brubaker v. Robinson, 3 Penna. Rep. 295; Galbreath v. Moore, 2 Watts 86; Girard Ins. Co. v. Field, 9 Wright 129; McCarty v. Emlen, 2 Dallas 277; s. c. 2 Yeates 190; Morgan v. Watmough, 5 Wharton 125; Caignett v. Gilbaud, 2 Yeates 35; Childs v. Digby, 12 Harris 23; Norcross v. Benton, 2 Wright 217. The jury had the right to presume for the purposes of this case that the vendors were equal as well as joint owners: Hoyt v. Doughty, 4 Sandford 462; Ohl v. Eagle Ins. Co., 4 Mason 390.
    February 26th 1872,
   The opinion of the court was delivered, by

Agnew, J.

The verdict of the jury establishes that there was no intentional misrepresentation of the yield or richness of the silver-mines, sold by George Coryell, on behalf of himself and Hiekcox and Power to Weist and Myers. This leaves but two questions in the case that require notice. They alleged that Cor-yell before the sale represented that the ore from those mines would yield from $133 to $145, per ton, and that Weist and Myers bought on the faith of this representation in Philadelphia, the mines being in Colorado territory, and out of reach before closing the contract. By actual assay the ore is found to yield only about fifty dollars a ton; and the garnishees, Weist and Myers, therefore allege a failure of consideration, and claim a right to defend, on the ground of a material false representation of the richness of the mines. But the case is not like Fisher v. Worrall, 5 W. & S. 478, and others of that class, in which the misrepresentation of an occult quantity of land is held to be a defence when the vendee buys on the faith of the representation and not on his own judgment. In this case by the very terms of the agreement, it appears that Weist and Myers did not buy on the faith of any representation, but provided for a prospect and examination of all the mines, by a competent assayer named in the article, as to their availability, richness, duration and condition; and also if having the requisite machinery to reduce or ■work two or more tons of the ore; and whether he has machinery or not to so reduce the ore, to report to Weist and Myers; the report to be subject to their approval, and if not satisfactory nor approved by them, the agreement to be void. Weist and Myers, therefore, did not rely on the representations of the vendors, but took the most available means to protect themselves against the hazard of a distant purchase. Professor Bruckner, the assayer, made the examination and reported, and on the report, Weist and Myers confirmed the purchase, and paid a large part of the purchase-money. Nothing short of collusion and fraud in the report of the assayer could afford any ground of defence, and this is taken away by the verdict, the question of actual fraud having been submitted to the jury upon the whole case and found against them. The vendees bargained for the report of a, competent assayer before they should be bound by the contract. They have had it and acted upon it, and their mouths are now closed against an allegation of misrepresentation in the inception of the contract.

The other question is as to the proportionate interest of G-eorge Hickcox, one of the three vendees, in the purchase-money. It is contended that without proof of his actual interest in the mines', no verdict could be rendered for a specific sum, as his interest was unknown and might be less than this sum. But there is no evidence that Coryell, Hickcox and Powers were mere partners, subject to a settlement among themselves. The largest inferences to be drawn from the contract and the answers of the garnishees in evidence would be that they were joint-tenants and sold as such. The answers admit an unpaid residue of purchase-money of $26,000, while the verdict is for $4086.21, only. The fair presumption from the fact, that, in the sale Hickcox is equally as well as jointly bound for the covenants on part of 'the vendors, is, that his interest in the subject of the contract is equal; otherwise he would have restricted his liability to a minor proportion. There is nothing in the agreement or the answers to rebut this presumption. Though only a primfi facie, and indeed a weak presumption, yet it is sufficient to stand until something is proved to overturn it. This rebutting evidence would naturally come from Hickcox, the defendant, and the garnishees themselves, and not producing it, they cannot complain of the inference of equality of interest as drawn from their acts.

The judgment is therefore affirmed.