text:
    Maynard v. Nekervis.
    An endorser of a negotiated note may prove that he has paid it, and that the present plaintiff and holder is but a trustee for Mm.
    An attachment-execution must be pleaded specially, and, it seems, in bar.
    In error from the Common Pleas of Lycoming.

      Aug. 2. Assumpsit on a negotiable note drawn by Maynard. Plea, non assumpsit and payment. The note was drawn to the order of Abrams, and by him endorsed. The defendant showed that an attachment-execution, under a judgment against Abrams, had been served on him as garnishee; and then called Abrams to prove that he had, as endorser, paid the note to the former holder, and that the present plaintiff was a trustee for the witness. The evidence was rejected, and this was the error assigned.

      Maynard, for plaintiff in error.

      Bellas, contrü, contended that the witness was interested.

      Aug. 4.
   Bell, J.

Since Sweeny v. Allen, 1 Barr, 380, it is not to be doubted the evidence offered and rejected was pertinent, as, under the authority of that case, the plaintiff on the attachment-execution acquired a title to the debt in suit hostile to that of the plaintiff in the action, if the allegations of the defendant be true. But was Abrams a competent witness to prove them ? Two objections are urged against his admissibility. . Ferre, the other witness offered, shows him to be interested in the event of the suit; and second, that he is excluded by the rule that prohibits a party to a negotiable instrument from impeaching it, after it has, been negotiated.

The answer to the first objection is, that the proffered evidence, taken together, shows that the interest of the witness is balanced. If by force of his testimony, the right of the attaching creditor to appropriate the debt due from Mr. Maynard be established, the witness will remain liable, as prior endorser, to Nekervis, the holder of the note. If, on the other hand, the latter should succeed in recovering the amount of the note in this action against the drawer, the witness will continue answerable to the attaching creditors. He therefore stands indifferent between the parties, so far as interest is involved.

The second objection admits also of easy answer. It is, undoubtedly, well settled in Pennsylvania, that a party to a bill or note strictly negotiable, and which has actually been negotiated, cannot be admitted to impeach it, in the hands of a bond fide holder, by anything which attended its inception, or attached upon it before it left the hands of the original parties; as, for example, that the contract was usurious, or that the consideration failed. He may testify to facts which occurred subsequently to the negotiation of the instrument, affecting it in the hands of the holder, and tending to disprove his right to recover upon it: Parke v. Smith, 4 W. & S. 289; Appleton v. Donaldson, 3 Barr, 381; Gilpin v. Howell, 5 Barr, 52-3. In the present instance, the defendant does not propose to go even thus far. He does not ask to attack the note to its destruction, but simply to show that the ownership of it is in another than the plaintiff, in order to let in the claim of creditors who might otherwise be defeated of a remedy accorded to them by law. I know of no rule of evidence that prohibits this. In England, and in some of our sister states, the rule, originally declared in Walton v. Shelly, has been departed from. We have adhered to it, with some modifications; but it is not to be pressed beyond the limits heretofore assigned; and it is clear the present offer was not these.

It might, indeed, have been objected to the proposed evidence, that it was not admissible under the plea of non assumpsit, the only issue tendered by the defendant. Such an objection would have been a valid one; for it is not to be disputed that an attachment, laid in the hands of a defendant, must be pleaded specially, either in abatement or bar, according to the nature of the attachment or the progress made in the proceedings under it, at the time the plea is put in: Irvine v. Lumberman’s Bank, 2 W. & S. 190. The attachment-execution, given by our statute, should, I think, be pleaded by a garnishee in bar; for the foundation of it is a judgment which concludes the rights of those who are parties to it, and nothing remains to be done as against the original defendant but to make it available.

Had this exception been taken in this court, or in the Common Pleas, it could not have been answered except by pleading, and this could only have been in the court below. But it was not brought to view by the defendant • in error; and it was not our province gratuitously to lay hold on merely technical grounds to defeat an ascertained right, legal or equitable.

In the present instance, we pass by this objection the more readily, as it might have been remedied below, had it there been noticed. But neither party seems to have thought of it; and as it does not touch the merits of the contract, we do not feel ourselves called on to give it a fatal effect, especially as the defect may be amended before another trial.

Judgment reversed, and a venire de novo awarded.


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    Follmer v. Dale.
    A promise by a third person to pay or guaranty the payment of purchase-money of land, where the sale was perfected and possession taken, is not within the statute of frauds.
    Giving time to the principal debtor, or other alteration of the contract, does not discharge a guarantor, if it be shown he suffered no injury.
    In error from the Common Pleas of Northumberland.

      Aug. 3. The plaintiff declared upon a guaranty by Follmer on the sale of a house by plaintiff to Garman, that he would pay the purchase-money, and also that in consideration of a sale of the house to Garman, Follmer promised to pay the price. The evidence was of a parol undertaking, and that a deed had been executed by plaintiff to Garman, who entered on the property, and a verdict was taken on both counts. Some time after the sale, plaintiff took a note from Garman payable in one year, on which judgment was entered at maturity, and the land sold by the sheriff.
    The material points raised on the charge were, whether the defendant was liable on such a contract, and whether the alteration of the contract, and the giving time by taking a judgment-note, payable in one year, discharged the guarantor.
    The court said that the taking a note and entering judgment, would not discharge the defendant; and whether the delay would, or would not, depended on whether he was surety or guarantor — if surety, he was discharged, but if a guarantor, then the plaintiff must prove that no injury was done by the delay.

      Qomly, for plaintiff in error,
    cited 4 Barr, 78; 1 Ib. 501; 2 W. 47; 4 Ib. 287.

      Lawson and Higgins, contra.

      Aug. 5.
   Rogers, J.

(after stating the case.) — It is objected that the plaintiff cannot recover on this title, because in that view of the agreement it is a parol contract, and as such comes within the statute of frauds. To this, however, it is answered, that although by parol, yet it is an executory contract, and that the contract has been executed. Follmer agreed to pay the purchase-money to Dale. He was the principal debtor, and without his engagement to pay, Garman would not have agreed to pay, nor would Dale have agreed to sell, as it was well known to both that Garman was unable to comply with the terms of the contract. In pursuance of the agreement, Garman took possession of the property, or continued to enjoy it as his own; received a deed from Dale, and it was afterwards sold by the sheriff for the payment of the debt. This is such a part execution of the contract as to take the case out of the statute, and comes directly within a class of cases so well known that it would be superfluous to cite them. To enable Follmer to cut himself loose from the contract would encourage, not prevent fraud. Next, as to the guarantee. On this part of the case, we think the answer of the court was as favourable as the defendant had any reason to expect. The court instructed the jury that there was a difference between a surety and a guaranty. In the case of a surety, if the time of payment be postponed against the principal debtor, without the assent of the surety, as if the creditor gave an extension of credit beyond the time mentioned in the contract, the surety will be discharged. But in the case of a guaranty, which is collateral to the agreement of the creditor, if the evidence satisfy the jury that no injury has been sustained’ by the guarantee, or that the obligee, for whom the guaranty was made, was insolvent and unable to pay at the time the guaranty was made, and continued so afterwards, a mere extension of time of payment would not discharge the persons making the guaranty, that the giving time, as in the present case, would not prevent the recovery of the plaintiff. The first part of the error assigned in relation to the surety is in accordance with the case of Clippinger v. Creps, 2 W. 47. This is conceded, but the answer is said to be wrong as to the guaranty. But that there is a difference between a surety and the case of a collateral undertaking to guaranty the payment of a debt, is shown by the case of Norton v. Eastman, 4 Greenl. 521; Terrell v. Smith, 8 Con. 426. In the former the creditor and principal debtor have no right to vary the contract without his consent. If they undertook to do so the surety is discharged, for he has a right to say non in hxe feeder a veni. But in the latter it is different, for though they have no right to alter the contract to the prejudice of the guarantor, yet when it distinctly appears he has not been injured, he cannot complain. When the terms of the contract have been varied without his consent, it is primé facie, but not conclusive evidence of injury, and the effect is to throw the onus prolandi on the creditor, who is bound to prove that, notwithstanding the change in the terms of the agreement, no injury has resulted to the guarantor. We agree with the court that nothing has been shown in prejudice of the guarantor. Taking the judgment, entering it up and selling the property, cannot be presumed to have injured the guarantor. This course was calculated to aid and benefit Folliher, as it secured a lien on the house and lot, and the funds arising therefrom were appropriated to paymént of the debt. Instead of an injury it was a benefit to him to that amount. We see nothing like an abandonment of the agreement with Follmer by proceedings to enforce payment of the debt, as far as practicable, by the judicial sale.

We are further of the opinion, that although the first point is not answered in its exact terms, yet that it is substantially answered, and that the cause was put to the jury on its true grounds.

Judgment affirmed.


author: Bell, J.

text:
    Road in Jackson Township.
    Where there is on the files of the court a draft of a road, to vacate which proceedings are commenced, a draft of the road thus vacated, need not he returned by the viewers, although the order of the court direct it to be done.
    Certiorari to the Quarter Sessions of Northumberland.

      Aug. 3. A road had been laid out and confirmed by the court, a draft of which accompanied the report of the viewers, but it had not been opened. A petition to vacate was then presented, and the order of the court directed the viewers to report whether they would vacate, or affirm the road, “with a draft of the road vacated.” The viewers reported that the road was useless and burdensome, but omitted to annex a draft of the road. On this ground, the report was set aside.

      Gh'eenough and Packer, for appellants.
    The records of the court contained a draft, and a duplicate was unnecessary.

      Jordan and Segins, contrA

      Aug. 5.
   Bell, J.

The Court of Quarter Sessions set aside the report of November, 1847, vacating the road, because they omitted to return a draft of the road vacated. But this was obviously unnecessary and useless, as the court was already in possession of a plan returned by the viewers, who reported in favour of the road. If authority be required to show this was sufficient, it will be found in the case of the Abington road, 14 S. & R. 31. That the order to vacate directed the viewers to return a plan, makes no difference. As the law does not require it, this direction was superfluous, and might, therefore, be properly disregarded as a mere interpolation by the clerk.

The order of the Court of Quarter Sessions setting aside the report vacating the said road, is reversed, and the said report confirmed.


author: Gibson, C. J.

text:
    Parmentier v. Gillespie.
    A judgment entered by confession of tbe defendant without a delivery of the warrant of attorney to the plaintiff, and without any intervention on the part of the plaintiff or his agent, binds the land of defendant for money subsequently ad- ■ vanced by the plaintiff pursuant to a previous agreement, as against creditors of defendant who have obtained judgments between the date of plaintiff’s judgment and the advance of the money.
    In error from the Common Pleas of Lycoming.

      Aug. 4.
    This was an issue directed between Mrs. Parmentier and Gillespie, both lien-creditors of Willard, to try the right of the former to the proceeds of his real estate, sold by the Orphan’s Court.
    The facts were 'these: — Willard had boon in treaty with Mrs. Parmentier for the advance of money, which she agreed to make on obtaining security on the lands, the proceeds of which were now in question. Mrs. Parmentier resided in New York, and Willard left that place to attend to the settlement of certain liens which bound his lands. When in Tioga county, he executed a mortgage to secure a bond conditioned for the payment of $11,000, and also a warrant of attorney, to confess a judgment on the bond in favour of Mrs. Parmentier. The mortgage was recorded, and the judgment entered by Willard’s direction on the 9th September. He then left for New York, but on the route lost the mortgage. He then procured a copy of the registry to be made, and original signatures to the acknowledgment- and certificate of registry. This paper he subsequently executed, and delivered with the bond to Mrs. Parmentier. On the receipt of these papers Mrs. Parmentier advanced to Willard $9,500.
    On the 13th September, and before the delivery of the mortgagé, bond, and warrant to Mrs. Parmentier, Gillespie obtained a judgment against Willard which bound the mortgaged lands.
    The question was whether Mrs. Willard or Gillespie was entitled to the proceeds of the sale.
    The court was of opinion, that as there was no delivery of the mortgage or bond until after the entry of Gillespie’s judgment, he had the priority.

      Bellas and Pleasants, for appellant.

      Maynard, contó.
   Gibson, C. J.

As the validity of the mortgage is strongly doubted by some of us, and as it is not necessary to determine it, I limit the present decision to the validity of the judgment as a concurrent security. A mortgage is a deed, of which delivery, actual or constructive, is an essential part of the execution; but delivery has nothing to do with the rendition of a judgment either by cognovit or recovery. This judgment was entered on bonds which were not delivered; but it was entered, not by virtue of the bonds, but by virtue of the warrant which attended them. In contemplation of law, like every judgment, it was the act, not of the party, but of the court; and it is enough, provided it were bond fide, that it was actually rendered, whether erroneously or not. Our books are full of cases to show that none but the parties can take advantage of mere error in the record. The only thing that could raise the shadow of a doubt in the case before us, is the admitted fact that the money intended to be secured, though agreed to be lent, had not been actually received; and if the judgment were unsound for that-reason, a creditor might certainly attack it collaterally on the ground of collusion. The terms of the loan, however, had not only been definitively settled, but the parties were as firmly bound by them as if the contract had, been reduced to writing; and why should not a judgment to secure the repayment of money which the lender was bound to advance, prevail against subsequent encumbrances ? The obligation of the parties disproves everything like collusion or fraud. Though with us a judgment for endorsements or acceptances lent, has been a frequent security, no one has ever contested its validity as a lien. Yet that is a much stronger case than the present. On the same principle it was held in Arrison v. The Commonwealth, 1 Watts, 374, that a judgment on a bond with condition to perform certain acts, is a lien from its entry; and this, though apparently different from the law of mortgages for future advances, is not essentially so. It was held in Irwin v. Tabb, 17 S. & R. 422, on the authority of Chancellor Kent in Brinkerhoff v. Marvin, 5 Johns. C. Rep. 322, and James v. Johnson, 6 Johns. C. Rep. 42&, that the extension of the security is stopped by the intervention of strangers; but it would not have been held that a mortgage is not a security for a present loan executed in every respect but manucaption of the money. It would lead to collusion and abuse if creditors could be kept at bay by a running security till it should please the parties to stop it; and therefore it is that such a mortgage, though good between the parties, must yield to liens prior in time to the advances made. Here the agreement to lend was equivalent to delivery of the money, and on that ground the appellant was entitled to a preference.

The decree is reversed, and it is ordered that she have leave to take the amount of her judgment out of court,


author: Per Curiam.

text:
    Dotts v. Fetzer.
    The Common Pleas have no power to change the names of the parties to a feigned issue sent from the Register’s Court. — But if they do, and no injury ensues, the judgment will not he reversed.
    The declarations of one of several devisees or legatees are not evidence on a feigned issue, devisavit vel non.

    In error from the Common Pleas of Northumberland.

      Aug. —. This was a feigned issue directed by the Register’s Court to try the validity of the last will of Fetzer, wherein J. B. and A. J. Fetzer were plaintiffs, and Dotts defendant. On the petition of J. B. Fetzer the court withdrew his name: and several of the legatees having declared by their petition, their desire that the will should not ,be supported, their names were added as defendants.
    On the trial the defendants offered to prove the declarations of A. J. Fetzer, the sole plaintiff on the record, that the testator was incompetent to make his will, which were rejected by the court.
    These were the only material questions.
    Miller, for plaintiff in error.
    Jordan, contra,.
   Per Curiam.

It is the business of the court which awards a feigned issue, to name the parties to it, and prescribe the form of it; and as this was done by the Register's Court, the Common Pleas had no power to' disturb it. But we never reverse for an error which has done no harm; and we are unable to perceive that any has been done by adding the names in this instance. The acts or declarations of legatees are not to be received in prejudice of other legatees; and the additional parties were not deprived by being joined of any advantage which they had before. Nor were they subjected to any burthen or disability. The fixing on parties to give' form to the issue, is a matter of arbitrary arrangement; and those who have not an interest in the question to be tried, pay no costs. The real parties — those who have taken an active part in the contest — are sought out and compelled to pay by a writ of attachment. All the exceptions resolve themselves into the point thus disposed of; and the plaintiffs in error consequently have no cause to complain.

Judgment affirmed.


text:
    Watson v. Willard.
    By the practice of Pennsylvania, judgmeni^creditors of a deceased insolvent are permitted to appeal from an award against Mm, but it must be in Ms name and with Ms rights only, saving that they may avoid fraud and collusion between the plaintiff and defendant, or his representatives, so far as they affect the creditors.
    But neither they, nor the original defendant, could inquire into the fairness of a transfer of the legal title held to secure payment of the purchase-money hy the vendee ivho had sold to the defendant. For as to that, the vendor, and those claiming his estate, alone could complain.
    Vendor under articles retaining the legal title, and receiving collateral securities under an agreement to collect them, which he 'employed Ms vendee to collect, is not aifected in Ms lien for the unpaid purchase-money by the payment of the collaterals to his vendee, until Ms vendee' accounts for the amount, oven as against judgment-creditors of the vendee, who have obtained liens before the receipt of the money by the vendee.
    And the assignee of the vendor succeeds to his rights at the time of the assignment.
    In error from tbe Common Pleas of Lycoming.
    In February, 1838, Cowden and Willard entered into articles, by wbicb Cowden agreed to sell to Willard certain land for $11,000, payable in six annual instalments, with interest. Part of the purchase-money was paid, and collateral securities deposited with Cowden. For these lands this ejectment was brought, to enforce payment of the purchase-money.
    On the 4th of June, 1841, Cowden conveyed all his estate in lands lying in the county, which included the above-mentioned land, to Trotter, in trust to secure certain endorsements of Cow-den, held by the Bank of Pennsylvania; and in case these were not paid, in trust to sell, and out of the proceeds pay said indebtedness. The endorsements not being paid, Trotter proceeded to sell the lands; and in May, 1843, conveyed the estate of Cowden in the lands now in question to Watson.
    Watson then brought ejectment against Willard to enforce payment of the purchase-money. The cause was arbitrated, and an award entered for plaintiff. Willard died, and his representatives refused to appeal, because his estate was largely encumbered by judgments. Eagle and others having recovered a judgment against Willard in 1840, and the West Branch Bank having recovered a judgment against him in 1841, petitioned the court, setting forth these facts, and that there were no other funds out of which their debts could be paid.. They were then permitted to enter an appeal from the award. Subsequently the West Branch Bank sold the estate of Willard at sheriff’s sale, and purchased it. At the trial, a deed was tendered by Watson to the West Branch Bank.
    At the time of the agreement between Cowden and Willard, Willard deposited certain bonds, &c., with Cowden, as collateral security for the purchase-money, to be by him collected and applied, when received, to the payment of the debt. Before the recovery of the judgments against Willard, Cowden re-assigned some of these claims to Willard, and employed him to collect others. After the recovery of the judgments, Willard collected money on account of these collaterals, but did not pay it over to Cowden.
    His honour, Woodward, P. J"., instructed the jury that Cowden having undertaken the collection of these collaterals, was bound to use reasonable diligence for the purpose of collecting them; and if he did so, and failed, they would not affect him as payments: but having selected Willard as his collecting agent, if'he placed the claims in his hands, and Willard received the money, and having other transactions with Cowden, retained part of the moneys so collected, to he accounted for in a full settlement of all accounts between them
      , the collections then made were applicable as payments on this contract, especially as intervening rights had attached, and that the payments made since the conveyance to Trotter would also be so applicable; for that was in substance a mortgage, and-until notice thereof the debtors were authorized to continue their payments to Cowden. His honour also instructed the jury that, if the sale by Trotter to Watson was a sham sale, intended to cover a seizure of the property by the bank and its agents, it was void, and the plaintiffs could not recoyer. The verdict was for the plaintiffs for a Small amount.
    The admitting the judgment-creditors to appeal, and the charge, were the points considered here.

      Maynard and Watson, for plaintiff in error.

      Fleming and Bellas, contó.
   Gibson, C. J.

On the 20th of February, 1888, the title to the property in contest was in John H. Cowden, who, on that .day, agreed by writing, under seal, to convey it to William Willard, on receipt of $11,000; but conveyed it, on the 4th of June, 1841, to Joseph Trotter, in trust, to sell it for payment of certain drafts held, with Oowden’s endorsements, by the Bank of Pennsylvania; and on the 8th of May, 1843, Trotter conveyed it to Oliver Watson, who,.thus invested with the legal title, and standing in place of the vendor, endeavours to enforce, by ejectment, the contract made with Willard. The defendants in possession are Willard’s children, but the parties in interest are his judgment-creditors, and they insist that the purchase-money has been paid. As these creditors are not purchasers, they stand no higher than Willard stood. They would be protected from collusive acts done or suffered by him or his children; but they are entitled to nothing else which they do not hold, subject to whatever would affect him; and the cause is consequently to be considered as if it stood between the original parties to the purchase. If Cowden could enforce it by means of the legal title, Watson, his successor, can enforce it; and if he could enforce it against Willard, he can enforce it against Willard’s children and his judgment-creditors. Inattention to these plain and prominent principles, has led to the misconception in which the record abounds.

The business, at the trial, was to ascertain how much of the purchase-money was in arrear; but before we proceed to the points which arose in the course of it, it is necessary to consider the right of Willard’s judgment-creditors to appeal in their own names from an award of arbitrators, which the plaintiff had obtained in the cause, against Willard’s children, who were substituted for him at his death, and who had no motive to appeal from it, as the amount of the judgments which bound their father’s equity was greater than the value of it.

By force of the arbitration act, this award was a defeasible judgment; and it is a cardinal rule of the common law, that none' but a party to a judgment can reverse it on writ of error or abate it on appeal. For collusion, strangers may abate it collaterally by pleading and evidence; but the refusal of Willard’s children to incur the vexation and expense of a hopeless appeal, was not collusive. It is well settled, however, that creditors may not abate a judgment collaterally without proof of collusion; and they would consequently be excluded by the common-law rule from intervening directly. For the authorities to the point, I refer to those cited by me in a careful consideration of the subject in Campbell v. Kent, 8 Penn. Rep. 72, particularly Godfrey’s case, 11 Rep. 44, and Randall’s case, 2 Mod. 98. According to these, the course of the judgment-creditors was not to intervene but to purchase Willard’s equity on their judgments, and try title -with the holder of the legal estate, by an action in which his award would not estop them from showing how much of the purchase-money had been paid. Want of privity with the vendee, is doubtless the reason why that might have been done. The course indicated, Would have been more circuitous than the one pursued; but it would have been less anomalous; and it is one which the creditors might undoubtedly have taken. But our irregular practice, growing as it does out of our mixed system and our consequent disregard of common-law forms, has been in most cases to let the creditors intervene; and it is too deeply seated to be torn up. ■ It is not to be commended for simplicity; for it has all the hitches and entanglements of confusion, insomuch that judgments unimpeachable by the parties to them, have been opened on an allegation of collusion at the instance of creditors, and never closed against the defendants, who were entitled to no relief whatever. In the very case before us, the- plaintiff'would be prevented from enforcing his award against the land in the hands of Willard’s children, though he were prepared to show that the judgments against him were fraudulent, or that they had preceded the purchase, or that they had lost their liens — to be sure, an improbable event, but one which nevertheless might happen. The worst of it is, this jumbling together of professional forms has jumbled together professional ideas, and introduced uncertainty and doubt into what was before system- and method. Thus the conveyance in execution of the contract on the part of the plaintiff, was made and tendered, not to Willard’s children as the successors of the vendee, but to the West Branch Bank as emphatically the party because it stood as an active and a conspicuous defendant on the record, though it had neither the equitable estate as a foundation for the legal title, nor a right to call for a conveyance, not having purchased Willard’s equi,tyin order to take his place as the vendee.’ For the occasion, however, it is enough to say that as- our courts have constantly admitted creditors to intervene in cases of alleged fraud, though they might have litigated the matter in a collateral action, the judgment-creditors were entitled, on the maxim of communis error, to appeal in the name of the defendants, but with as little disturbance of common-law forms as was practicable. They might have fought under the defendant’s banner, but under no banner of their own; and having no estate in the premises, they, ought not to have been admitted to defend in their own names, as formal parties on the record. Even- a landlord, or the heir or devisee of a party defunct, is brought upon the'record only by force of legislative enactment. But as the making of parties produced no results, because the creditors did nothing as formal defendants which they might not otherwise have done, the error of putting their names on the record was without prejudice, and we would not reverse for it.

There was error also, though the verdict shows that it too was harmless, in receiving evidence of the dealings of the Bank of Pennsylvania' with its agents, and in directing that if the sale to the plaintiff was not bond fide, but a sham to cover a seizure of the property by the bank and persons concerned with it, his title would be so effectually impeached, that he could not recover on it. Plow it could be mala fide as to those who had no connexion with it, I am unable to see. As an instrument of seizure, the legal title would not be more potent in the hands of Watson with confederates, than it would be in the hands of Trotter without them. The law of champerty has punished such confederates by writ or indictment, but it has never annulled the title put in motion by them; and here the position taken, is that an act of champerty would give the property to the defendants freed from purchase-money. But Trotter, having the legal title with the incidents attached to it, might enforce the contract of purchase by an ejectment in his own name, or devolve the execution of the trust on an assignee. He sold the property to the plaintiff, and who had a right to complain of the transaction, or impeach the motives for it ? Not Cowden’s equitable vendee, or those who in anywise represent his interest. They had nothing to do, but to pay the residue of the purchase-money, if any was due, and receive a conveyance of the title. Neither Cowden nor the Bank of Pennsylvania complains; and no one else can. If money was to be paid on the contract, it might have been safely paid on the foot of the title : if none was to be paid,_ it was indifferent to the equitable owners and judgment-creditors, whether Watson of Trotter had the legal estate. If the point submitted was, that the legal title would be neutralized or avoided by being put into the hands of those who would give it greater activity in extorting payment, or in rescinding the contract and divesting the equitable title by means of a conditional verdict, it was an untenable one, for indulgence is a matter of grace, and as Trotter might have pressed the demand himself, he might employ others to press it. The very point was ruled in Coxe v. Blanden, 1 Watts, 133, where it was held that a stranger could not 'object to a title founded on a conveyance of the legal estate by a trustée, on the ground that it was an abuse of the trust. A conveyance from the plaintiff would have amply secured the title against the bank or its agents. But as the objection went to the root of the action, and as the jury found the fact for the plaintiff by giving him a part of his demand, the direction is not ground of reversal.

But there is a misdirection which is fatal. Indisputable payments were made to Cowden, and collateral securities for the rest of the purchase-money were deposited with him by Willard, who, nevertheless, collected the greater park, of them by Cowden’s authority, but put the money in his own pocket; and these collections by Willard as the agent of Cowden, were directed to be allowed against the plaintiff as payments to Cowden himself. Had the money been embezzled by any one else authorized to receive it, the direction would have been well enough, for the payment of it would have been good, even in favour of Willard; but between Cowden and Willard, who, as the case stands, withdrew his col-laterals by appropriating the proceeds of them to his own use, they go for nothing. Can they go for more, between Cowden’s successor and Willard’s judgment-creditors ? Actual payment would have permanently enlarged their liens; but it is an indisputable principle, that a delivery of collateral securities is not payment before the money has been made from-them; and it was an error to suppose that a receipt of it by the debtor, even with the creditor’s assent, was a receipt of it by the creditor himself. The fallacy of the supposition lies in a notion that payments were to be made as much for the benefit of Willard’s creditors as of Cowden, though he was not bound to consult them or know them. He had no interest in common with them; and, having to deal with his debtor, not with them, he was at liberty to make such arrangements with him, as suited their mutual convenience, without regard' to the interest or convenience of any one else. They were not in the category of sureties whose interests the creditor is bound to protect so far as protection is consistent with his own security; but the position assumed would give them a more commanding position in the cause than the position of him by whose skirts they held, and whose equity was their foothold. They could sell no more than that equity, and they could acquire no distinctive character by the purchase of it. What is a judgment-creditor ? In Rodgers v. Gibson, 4 Yeat. 111, and in Heister v. Fortner, 2 Binn. 40, he was not admitted to be a purchaser within the recording acts, and in Brace v. The Duchess of Marlborough, 2 P. W. 491, Finch v. Winchelsea, 1 P. W. 277, and Cover v. Black, 1 Barr, 493, he was not admitted to be a purchaser- within any principle of equity or law whatever. The purchaser of a perfect title can take an independent stand against the holder of a secret equity; not the holder of an equity against the purchaser of the title. But a judgment-creditor has no title or estate, perfect or imperfect; and his interest being merely accessorial, must stand or fall with the estate to which his lien has bound it. He is not even a privy; for though it was said in Cash v. Tozer, 1 W. & S. 528, that judgment-creditors have necessarily a right to b® heard against the confirmation of a sale on the execution of another, they are admitted as privies no further than to prevent a sacrifice of their interests by a sale at an undervalue. Nothing .is payment to enlarge the equitable estate of a vendee for the benefit of his creditors, which is not equally payment to enlarge it for the benefit of himself; and the sums which were received from the collaterals, and withheld by Willard, ought not to have been submitted as payments against the plaintiff.

Judgment reversed, and a venire facias de novo awarded.


author: Coulter, J.

text:
    O’Brien v. Logan.
    A reference to a special contract in a mechanic’s claim is unnecessary..
    In error-from the District Court of Allegheny.
    This was a scire facias on a mechanic’s claim, in which a verdict was entered for the plaintiff, subject to the opinion of the court on points reserved. These were stated to be: — 1. There being a special contract, whether the claim filed generally, without reference to the contract, was valid, and whether the evidence supported the claim. The court considered that the claim was untrue, for want of a statement of the contract, and that the evidence did not support the claim.
    2. The claim was filed July 17,1844, and the owner had conveyed on the 13th of the same month. The court considered the vendee was not liable to the claim rendered valid by the act of 1845.

      Me (landless and McClure, for plaintiff in error.

      Thomas Williams, contó.

      Sept. 18.
   Coulter, J.

(after stating the case.) — The court say that the evidence does not sustain the plaintiff’s claim. The evidence is not on the paper-book; and it is therefore impossible for us to say whether it did support the plaintiff’s claim or not. There is room to infer that the court considered the exhibition of the contract by the plaintiff as a variance, and that the allegata, and probata did not therefore correspond. As the sufficiency of the evidence to support the claim belonged to the jury in a great measure, we presume not that its alleged insufficiency was the occasion of a judgment non obstant«| veredicto. I dismiss, therefore, that part of the first point, and proceed to consider whether it was indispensable that the plaintiff should have set out his written contract in his statement of his claim. In the case of Haley v. Prosser, 8 W. & S. 133, it was ruled by this court, that where there is a special contract between the owner or builder for the work which the former is to do, or the materials which he is to furnish, he must look to his contract alone for his security; and that he cannot resort to the remedy which the mechanics’ lien law provides. The same principle had been ruled in Haley v. Patterson, 5 W. & S. 537. The legislature seemed to think that this was not a correct construction of the act of 1836, and they set themselves about amending it, by the act of 1845, in which they declare that the act of 1836, according to the true intent and meaning thereof, extends to and embraces claims for labour done and materials furnished and used in erecting any building, in pursuance of any contract for erecting the same, and that no claim which has been or may be filed against any house, or the lien thereof, or any proceedings thereon, shall be in any manner affected by reason of any contract, but the same shall be held good and valid as if the same had not been executed by contract. It is very certain that the intent of the legislature in this law was to strip the mechanic’s claim from all connexion with any contract on the subject. Indeed there is some glimmering of such an intent in the act of 1836, because the 27th section of that act provides that nothing' in this act contained shall be construed to impair or otherwise affect the right of any person to whom any debt may be due for work done or materials furnished, to maintain any personal action against the owner of the building or any other person liable therefor, to recover the amount of such debt. Be that as it may, however, the judiciary expounded the law differently, which finally produced the law of 1845. It is of no consequence by what name in the nomenclature of statutes it is called, whether remedial, declaratory, or retroactive, it has undergone the ordeal and come out unscathed as between the original parties, and between them alone we may fairly presume the legislature intended it to operate. The act has been reviewed in the case of Bolton ». Johns et al. 5 Barr, 145, and declared to be constitutional between the original parties; and it is now as between the original parties that I am considering the case. This decision precludes the necessity of any farther inquiry. It is too fresh in the odour of judicial sanctity to admit of doubt or question. If, then, the legislature could enact that a claim previously filed without regard to a contract for work done and materials furnished under a contract was good and valid, does it not necessarily follow and imply that a reference to the contract was superfluous ? especially as the law provides that no claim which has been or may be filed, or the. lien thereof, or any proceeding thereon, shall in any manner be affected by reason of any contract being entered into for the erection of such building, but the lien shall be as good and valid as if there had been no contract. This language is so full and imperative as to dispense with the necessity of setting out a contract which had no dominion over the remedy provided by the statute. It is abundantly manifest that the intention of the legislature by the helping act of 1845, was to make the remedy by filing a claim for work and materials totally independent of the remedy on special contract. And however these kind of statutes may be objected to, they have been sanctioned by numerous decisions of this court since the case of Bleakney v. Farmers’ and Mechanics’ Bank of Greencastle, followed by many others, and terminating with Bolton v. Johns et al. The defendant is deprived of no advantage or right by reason of the contract not having been referred to. In all cases where there is a special contract, under the provisions of which the defendant seeks to shield himself, he may plead it, and aver that the plaintiff has not performed his part, or that the time of payment has not arrived, or any other matter or thing arising out of the contract, which would be a good defence. The whole matter can be adjudicated in such proceeding as well as if the plaintiff had set out bis special contract.

As to the second point, to wit: “ Is the claim filed a lien upon the building in the hands of the defendant’s vendee ?” it is ruled by the case already cited, Bolton v. Johns et al. 5 Barr, 145.

It is there decided that the act of 1845 is good between the original parties and volunteers; that is, those who have not purchased and paid the whole of the consideration before the passage of the act, or, in other words, whilst the lien was invalid under the decision first referred to. A deed from the owner of the building, a receipt for the purchase-money, or taking security, was held to be insufficient. Nothing but actual payment of the money protected the purchaser. In that case there was a deed to the purchaser, with a receipt for the purchase-money, and such is the case here; but it does not appear that the actual payment was made a question in the court below, nor was it made in the case of Bolton v. Johns. The cases are precisely similar, and I transcribe from the close of the opinion of the Chief Justice in that case, the intimation to the court below, which embraces the whole of the law as applicable to the second point reserved.

The cause therefore goes back for trial, with an intimation that it ought to be left to the jury with a direction to find for the terre tenants generally, if they shall prove that they have paid the entire purchase-money — not merely secured it — or for the plaintiffs to the amount of the unpaid residue, if their demand shall reach so far, or their whole demand, if nothing has been paid, and that the burthen of proof is on the terre tenants.”

Judgment reversed, and a venire de novo awarded.


text:
    Vankirk v. McKee.
    The recital in an award that the parties had been heard, is conclusive in a court of error, that the parties appeared, and thus waived the want of notice of the time and place of meeting.
    Iif error from the Common Pleas of Allegheny.
    Two questions were raised on the record. 1st, The jurisdiction of the justice. The action was entered by him “ Debt in assumpsit for damages for the breach of ■ a parol agreement for the sale of flour.” The narr. on the appeal was in assumpsit for the nondelivery of flour.
    2d, The cause was referred and an award filed, which recited, “ having heard the parties, their proofs, &c.” The defendant filed an affidavit that ho had never received notice of the time and place of meeting; but the court refused to set aside the award, or strike out the recital above stated.
    Alden, for plaintiff in error.

      Kuhn, contra.

      Sept. 11.
   Per Curiam.

There is no force in the objection to the inceptive jurisdiction. The plaintiff demanded damages before the magistrate, for not delivering a quantity of flour; and that is what he demanded in the form of an action of assumpsit in the Common Pleas on appeal.

Neither is the exception to want of notice of the meeting of the arbitrators, better founded. Appearance has always been held to cure it; and the arbitrators reported they had heard the parties. If they reported falsely, they were guilty of misconduct, for which the court might have set aside the award; and an application to do so was actually made, but on the affidavit of the defendant alone, which was clearly insufficient. But as the application raised a question of fact depending on parol proof, and involving the credibility of witnesses, we would be incompetent to judge of the decision, even if there had been proper testimony. The evidence not being matter of record, could not be brought up; and nothing would appear in the cause on which we could adjudicate. But were it otherwise, we could not determine the fact so safely as those who had not only heard, but seen the witnesses; and for that reason we have always refused to hear affidavits on a writ of error. As to the application to strike out a part of the award, it is too plain for remark, that the court had no power to grant it.

Judgment affirmed.


text:
    Wilson v. Young.
    An attorney at law may refer Ms client’s cause to arbitrators, with an agreement that their award shall he final.
    In error from the Common Pleas of Allegheny.
    The plaintiff’s attorney in an action pending, agreed to a reference to arbitrators “ on whose award judgment was to be entered without exception or appeal.”
    An award was made for defendant in May, 1846. In June, 1847, an application was made by plaintiff to set aside the award, on affidavit that his attorneys had no special authority, and that the reference as made was without his consent or approbation at the time. The court refused the rule, and this was assigned for error.

      Wilson and Wills, for plaintiff in error,
    cited 3 Barr, 449; 13 Eng. C. L. Rep. 134; 1 Penn. Rep. 266-7; 3 Binn. 235-6.

      Marshall, contó,
    cited 1 Binn.; 6 Johns. 34; 16 S. & R. 316.

      Sept. 12.
   Coulter, J.

An attorney at law is a public officer whose warrant is “ tails ponió loco suo talem attornatum suum,” and is defined by Bacon to be aj person appointed to prosecute and defend for his client. He is an officer or member of a court of record, and appointed in the place of another, to transact and manage either his law concerns and the business incident thereto, or other affairs which require the professional skill, knowledge, or learning usually possessed by members of the profession: Maugham’s Law of Attorneys, 4; 1 Step. N. P. 404. It will scarcely be doubted, therefore, even in England, where his powers are so plenary, but that he would be competent to submit a case to an umpire. It is said, in Lynch v. The Commonwealth, 16 S. & R. 388, that in Pennsylvania the authority of an attorney is more extensive than in other countries; and indeed it would be difficult to point out any matter or thing in the legitimate conduct of a suit to judgment which he may not do. The limitations imposed on him relate generally to compromises, which substitute one thing for another; as real estate for money, or to transactions after judgment. There is nothing whatever in the argument, that he cannot be allowed to deprive his client of the right of trial by jury; because no one doubts his authority to make an issue in law, by interposing a general demurrer, and thus devolve the decision upon the court, without the intervention of a jury. The statute of 1806, under which the reference in hand was made, expressly authorizes the parties, either by themselves, their agents, or attorneys, to consent to a rule of court for referring the cause to persons mutually .chosen; and the addition of the limitation in the present case, that the award shall not be subject to exception or appeal, does not vitiate or impair the agreement, because no appeal is allowed by the statute; and the court, in a suitable case, would interfere, notwithstanding the limitation of “without exception:” Mussinar v. Hertzog, 5 Binn. 387; Horton v. Stanley, 1 Miles, 418. Their right to supervision is not taken away by such words, or those of like import. But such qualification is often beneficial to the party, conduces to the settlement of cases where the amount is unimportant, and is within the scope of the authority of an attorney, in the conduct of the suit.

The client is by no means without relief in proper cases, by application to the court; and he may revoke the submission. This disposes of the second error assigned; and there is nothing in the first. The jurisdiction of the justice was clear and indisputable.

Judgment affirmed.


text:
    Wills’s Appeal.
    The Orphans’ Court have jurisdiction, on the petition of the ward, to compel a guardian to settle his account, as well since the act of 1832 as before that act. And this jurisdiction continues after the ward has attained his majority: and the court may direct the account to be filed with the Register.
    From the Orphans’ Court of Allegheny.
    The petition in this case was filed by Wills, who stated that Hannen and Davis had become his guardians, and in that character possessed themselves of his estate, of which they had not rendered a full account; and prayed a citation to the guardians to compel them to settle their accounts. The answers of the guardians averred they had settled their accounts. After hearing evidence, from which it appeared that the petitioner had arrived at full age, the court dismissed the petition, and directed an application to be made to the Register, under the 10th section of the act of 1832.

      Wills and Wood, for appellant.

      Shaler and Hampton, contriL

      Sept. 11.
   Bell, J.

Since the earliest constitution of our Orphans’ Courts they have exercised jurisdiction over the persons, and estates of minor children, and controlled and enforced the due execution of the trusts committed to the hands of their guardians. So early as March, 1713, it was enacted that the Orphans’ Courts' shall have power to award process, and to cause to come before them every person who, as guardian, trustee, executor, administrator, or otherwise, are or shall be intrusted with or in any wise accountable for any lands, tenements, goods, chattels or estates belonging to any orphan or person under age, and cause them to exhibit, within a reasonable time, true and perfect inventories and accounts of the said estates. The authority thus conferred has, from time to time, been enlarged, and the scheme for its administration improved by successive acts of Assembly, until but little remains to be done necessary to render the system perfect, so far as present éxperience extends. The last of the series necessary to notice, is the act of the 29th of March, 1832. This embodies the provisions of the prior statutes, and adds some new ones in support of a jurisdiction, which, being proved by time and practice highly beneficial, has gradually grown into public favour. It, too, asserts that the jurisdiction of the Orphans’ Courts extends to and embraces the appointment, control, removal, and discharge of guardians, and the settlement of their accounts, and provides means for giving operation to the large powers conferred upon these tribunals. Copying from the act of the 30th March, 1821, it prescribes the condition of the bond to be executed by a guardian when required, Avhich, inter alia, binds him to render a just and true account of the management of the property and estate of the minor under his care, at least once in every three years, and at any other-time when required ly the Orphans’ Court. Under these various enactments, these courts have always claimed the right to call before them delinquent guardians and compel a settlement of their accounts, as well after as before the attainment of full age by the ward. Before the present, I know of no instance in which it was pretended that the formal dissolution of the relation of guardian and ward by the majority of the latter, ousted the court of its jurisdiction over the former. On the contrary, the power to call upon the guardian, irrespective of the age of the ward, is almost daily exerted, and its legal existence is recognised in numerous cases reported in our books. In Denison v. Cornwell, 17 S. & R. 374, it was held that a ward’s remedy, after arriving at age, is in the Orphans’ Court; and in Bowman v. Herr, 1 Penn. Rep. 282, after reviewing the then existing statutes on the subject, the court decided that the Orphans’ Court is the only proper tribunal to compel settlement of a guardian’s account. In Ex parte Cress, 2 Wh. 494, the authority of that court to entertain the application of an emancipated ward against his late guardian, for an account, was expressly admitted, and its exercise was sustained, under peculiar circumstances, in Lukens’s Appeal, 7 W. & S. 48, determined in 1844. A still more modern instance is furnished by Hickman’s Appeal, 7 Barr, 464, decided in 1848, where a citation to account was enforced against a guardian, though the ward, after he became of age, had settled with and executed a full release to the guardian. Many other cases might be cited, but the few to which reference has been made will suffice. But we are told that the ground upon which the court below dismissed the citation in this case, for supposed defect of jurisdiction, is thought to be furnished by the 10th section of the act of 1832. It directs that every guardian, whether required by the court to give security or not, shall, at least once in every three years, and at any other time when so required by the court, render an account to be filed in the clerk’s office, and, on the arrival of his ward at full age, shall settle in the register’s office a full and complete account, including all the items embraced in the prior partial settlements. A principal object of the act of 1832, was to bring together and present in one Anew, the various and scattered provisions of the older statutes on the same subject. To these some additions were made, for the purpose of enlarging and perfecting the poAver of the court; but until noAV, I believe it has never been imagined that, by the introduction of these new features, the lawgiver intended to curtail that poAver. Of the section just quoted, that portion Avhich calls for triennial accounts is copied from the act of the 30th March, 1821. The latter part, making it the imperative duty of the guardian to settle a final account in the register’s office, whether specially called on or not, is alone new. But how can this operate by implication, to repeal an express power before given to the court by this and other statutes, and heretofore exercised without question ? It can only be because of such repugnancy as makes the íavo provisions inconsistent. But I have failed to perceive that any such exists. The late guardian may file his final account in the register’s office, and then it is, by that officer, certified into the Orphans’ Court for its action. But suppose the guardian neglects this duty, Avhat is there in the provision prescribing it, which prohibits the interference of the court to compel it ? There is certainly nothing expressly prohibitory, and the ingenuity of counsel has failed to point out an implication. By law, executors and administrators are required to settle and file their accounts in the register’s office; but no one ever supposed that this requirement operates to prevent the Orphans’ Court from calling on these trustees in the event of their delinquency. In such cases, the register is without power to compel settlement, and I believe he is equally so as in the accounts of guardians.

But Ayhether this be so or not, it is very clear that the possession of such an authority by him, is no aaúso inconsistent with that given to the appropriate court. The cases I have cited, decided since the act of 1882, show that there is nothing in it to abrogate or interfere with the before undoubted jurisdiction of the court, which I would be unwilling to call into question under any legislative proAusion, short of an express repeal or clear and necessary implication.

In the exercise of this jurisdiction, it has been usual to direct guardians to file their answer to the citation immediately in the office of the clerk of the court. But I have no doubt the court may, if it be deemed more convenient, order the account to be filed in the first instance with the register, who will certify it in due course. Here the court below declined to adopt either of these modes, and turned the complainant from its doors by dismissing the citation, with a direction to apply to the register. In this, as has been shown, there is palpable error, for which its decree must be reversed.

Decree dismissing the citation is' reversed; and it is ordered that the said record be remitted to the said Orphans’ Court, with directions to proceed to the determination of the said cause, according to due course of law.


text:
    Paul v. Cunningham.
    A justice of tlie peace may set aside an award of arbitrators appointed by consent in a cause pending before bim, for malfeasance. And if the grounds of Ms action do not appear, the court must presume they were sufficient.
    If the plaintiff proceed to trial after an award has been set aside by a justice, he waives the irregularity in such action of the justice.
    In error from the Common Pleas of Allegheny.
    The plaintiff brought an action before a justice, which was referred by consent, and award made for the plaintiff. On affidavit of defendant, and notice to plaintiff, the justice set aside the award for reasons which did not appear on the record. The plaintiff then proceeded to trial and obtained judgment, from which defendant appealed, but the court quashed the appeal.

      Magehan, for plaintiff in error.

      T. Hamilton, contrá.

      Sept 11.
   Bell, J.

The action of the court below, quashing the appeal because of its non-entry within twenty days after the rendition of the first judgment, sur the award, was founded on the erroneous conclusion, that the subsequent proceedings before the alderman, were coram non judice and void.

Aldermen and justices of the peace necessarily possess, and have always exercised the power of setting aside awards for corruption or misconduct of the referees, and this, whether the submission be in pursuance of the statutes, or, as here, by agreement renouncing the right to except or appeal. In this instance, it is not necessary to say whether these inferior magistrates are clothed with the authority exercised by the common-law courts, to set aside awards for plain mistake in law or fact, committed by arbitrators. Perhaps it would be hazardous to concede to them a power of supervision so extensive as this. But certainly the common safety of the suitor requires he should have means of redress against the fraud or other gross malaction of persons whose judicial acts are not subject to the usual responsibilities and guards. If these means reside not in the aldermen and justices, they exist nowhere. But there is surely congruity in lodging them there. These are recognised officers of the law, vested with extensive judicial functions, and as their action is required to give a working efficacy to the determinations of the private tribunal, analogy as well as reason points to them a.s the proper depositories of a power essential to the due administration of justice.

The reasons which induced the alderman to set aside the award in question, do not appear, and in the absence of aught to disprove it, we are bound to presume they were legally sufficient. Yet were this otherwise, the remedy would have been by certiorari, sued after refusal of the plaintiff to submit to .the decision of the magistrate, and not by motion to quash the appeal from a judgment he himself assisted to establish. But the plaintiff has debarred himself of the writ of .certiorari, by his acquiescence in the alderman’s proceedings, and his active agency in prosecuting his action to the second judgment. This of itself is fully sufficient to euro any irregularity which might have marked the interference with the award, for consensus toilet errorem. The plaintiff’s course, in fact, involves a contradiction. He attempts the denial of a judgment, the result of his own procurement, which elsewhere he must assert as valid, or altogether lose the fruit of his litigation. He cannot again set up the judgment to whose destruction he has assented, and if the dismissal of the appeal could be sustained, there is nothing to prevent his demanding execution of the §econd judgment, as unaffected by the decision of the Court of Common Pleas.

This view loads to the conclusion that the appeal was in due time, and ought not therefore to be disturbed.

The order of the Court of Common Pleas quashing the appeal is reversed, and the appeal restored.


author: Burnside, J.

text:
    Dale v. Medcalf.
    A sale under a fi. fa., by tlie consent of the defendant, made after the return-day of the writ, is void as against a subsequent purchaser at sheriff’s sale under an encumbrance which would have been discharged by the former sale, had it been, valid; and the act of 1845, so far as it professes to validate such sale, is unconstitutional. •
    In error from the District Court of -Allegheny.
    The plaintiff held under a sheriff’s sale in January, 1846, under a mortgage by Davis, recorded February 22,1839.
    The defendant’s title was a judgment entered against Davis on the 22dFebruary, 1839, on which a fieri facias issued to November Term, 1840, under which a levy was made, and a written agreement by defendant endorsed waiving condemnation, and that a sale might be made without a venditioni exponas. A sale was accordingly made and returned. The execution-docket'showed that this sale was set aside, and a sale directed according to a recorded plan of the lots. An alias fieri facias then issued, to which the sheriff returned that he had levied (on the same property), and, by virtue of the writ and of the agreement endorsed on the fieri facias, had sold the property to Patterson. But it appeared that this sale was made after the return-day of the alias fieri facias. The validity of this sale ivas the only question raised; the court (Hepburn, J.) sustained it under the act of 1845, though he expressed doubts of the constitutionality of that act. The evidence showed that Patterson conveyed to Wynne, who was the plaintiff in the judgment under which the sale was made; and, so far as appeared, he held the defendant’s title.

      T. Williams, for plaintiffs in error,
    cited 4 Yeat. 108, 212; Gibbs v. Neely, 7 W. 305; 1 W. 388 ; Cash v. Tozer, 1 W. & S. 519; 2 Ib. 278; 4 Ib. 223; 1 S. & R. 92; 10 Ib. 261; 2 Binn. 80; Bald. 246; 2 Pet. 480; 8 Ib. 25; 2 Barr, 22; 5 Ib. 145.

      Woods, contra.
    7 W. 331, 475; 10 Ib. 1; Hunt v. Derling, 8 Ib. 403; 6 Wh. 214, 610; 1 Barr, 183, 218; 1 W. & S. 525; Bald. 207: 1 S. & R. 92; 15 Ib. 72; 10 Ib. 307.

      Oct. 2.

   Burnside, J.

There are two questions arising on the errors assigned, which dispose of this case. The first is, whether the sheriff’s sale on the fieri facias, after the return-day of the writ, divested the title of the defendant, and passed any title to the purchaser? 2d. If the title was not divested, and no title passed, is it cured by the act of the 16th of April, 1845 ?

1st. The act of the 16th of June, 1836, Dunlop, 727, changed the law, and prescribes the proceedings on a fieri facias. In the 43d section the sheriff is directed to levy on the defendant’s real estate, where there is-not sufficient personal property; and the 44th section directs the inquisition to inquire whether the rents and profits will pay beyond all reprizes in seven years; and then the 45th section, which is a proviso to the sections recited, that the defendant in any execution, being at the time of issuing thereof the owner of such real estate, &c., may, by writing filed in the proper court, dispense with and waive an inquisition; and the sheriff, after due notice, is authorized to sell on the writ of fieri facias, before the return-day thereof. (I give no opinion whether the waiver in this case was sufficient, as, on that question, there is some division in the court. For the consideration of the questions arising on the record, I assume it to be good.) The case of Cash v. Tozer, 1W. & S. 519, was decided in Sunbury, in 1841, was well considered, and it was then solemnly settled that a sale of real estate upon a fieri facias, after the return-day thereof, although continued by adjournment from day to day, is contrary to the act of Assembly, and void, and vested no title in the purchaser. That case was reported in 1842, nearly three years before the passage of the act of 1845. The Chief Justice delivered the opinion of the court in his usual able manner; and the conclusion was, that the legislative enactment of 1836 left nothing to interpretation. It was peremptory that the sheriff shall sell before the return-day of the writ. A sale after it was of no more force than if it were made without judgment or execution. The sale under which the defendant claimed was made; and the whole proceeding to affect it was under the act of 1836. The provisions of the act were disregarded ; the saie was void. When made by the sheriff, his writ was spent. It was exhausted, and was of no more virtue for the purpose to which it was applied, than if it had never existed. The estate of the defendant, by that sale, was not divested, because the sale was not made as the legislature had required.

2d. As the sale was void, and the sheriff’s deed passed no title, was it cured, and did the title pass by the act of the 16th April, 1845 ? (Dunlop, 950.) The words of the act are, “ All sales of real property within this commonwealth, made since the passage of the act to which this is a supplement, by sheriffs or coroners after the return-day of their several writs of levari facias, fieri facias, ven ditidni exponas, or other writ of execution, shall not, on account of such irregularity in such proceeding, be set aside, invalidated, or in any manner affected, and such sales so made shall be held as good and valid to all intents and purposes, as if such sale had been made on or before the return-day of the writs respectively; but this section shall not affect any sale heretofore adjudged to bo illegal in any court.” Is this constitutional? The sale being made contrary to legislative enactment, and declared by this court utterly void, can the legislature validate such a sale to the injury of another party ? In plain English, can they take one man’s property and give it to another — property which is secured to him by the constitution and laws ? In Brown v. Hummel, Mr. Justice Coulter has said, an act of Assembly whereby a man’s property is swept away from him without a hearing, trial, or judgment, or the opportunity of making known his rights, or producing his evidence, is not “the law ofthi» land,” within the meaning of the ninth section of the declaration of rights, or set forth in the constitution of Pennsylvania. By the law of the land is meant the law of an individual case, as established on a fair, open trial, or an opportunty given for such trial in open court, and by due process of law. But the case of Menges v. Wertman, 1 Barr, 218, as well as others, a,re relied on. Menges v. Wertman was decided after I came on the bench. Mr. Justice Rogers and Mr. Justice Kennedy were for deciding the act unconstitutional and void; Chief Justice Gibson and Mr. Justice Sergeant were for affirming the judgment. I was in doubt, but finally agreed with the latter, and the judgment was affirmed. I am afraid that the decision in that case has had most mischievous consequences. When I agreed to that decision, my mind ran over the acts in favour of imperfect acknowledgments of deeds by married women, which introduced a forced construction of the constitution which could not well be changed. There were other decisions which bore on the case of Menges v. Wertman, such as Smith v. Merchand’s Executors, 7 S. & R. 260, where an act to enable purchasers of defective tax-titles to receive back from the county commissioners what they had paid over and above the taxes, was sustained, though the purchaser had no previous title to recover. In Underwood v. Lilly, 10 S. & R. 97, a retrospective act, confirming certain judgments erroneously entered on the last day of the term in York county, Avas sustained. In Estep v. Hutchman, 14 S. & R. 435, a private act authorizing a guardian to convey land sold by the father of his ward, and paid for by the purchaser, Avas sustained. In Bleakney v. The Bank of Greencastle, 17 S. & R. 64, an act validating suits pending was sustained. In the case of the Pittsburgh and Ebensburgh Turnpike Co. v. The Commonwealth, 2 W. 433, Mr. Justice Rogers, delivering the opinion of the court, took the broad ground, that where a right exists without a remedy the legislature may constitutionally provide it; a right, without a legal power to enforce it, is a moral obligation, to which, it is said in Menges v. Wertman, the legislature may add a legal obligation. After this series of cases, it would have been difficult to come to any other conclusion, than that the legislature might give* such a sanction. The only thing that seemed peculiar to the act in Menges v. Wertman, was that it was the second time, if not the first time the legislature had assumed judicial power to interfere between parties directly by name. But that was merely a difference in form. These acts, though they are general in form, are always intended to operate on particular cases. They are procured by lawyers to help them in particular cases, and they are passed by the legislature without hearing the parties to be affected, but with the express understanding of every honest member, of leaving the question of their constitutionality to the judiciary. The growing frequency of these invasions of private rights renders it necessary that they should be resisted and disregarded where they infringe the constitution. But it is easy to distinguish this case from Menges v. Wertman. There the sheriff’s vendee had purchased, and under a mistake of fact, paid for, a part of the land which was supposed to be within the jurisdiction of the court which had issued the execution. The purchase-money was applied to the former owner’s debts, and as he had the benefit of the sale, it was thought the legislature had power to prevent him from disturbing the purchaser. In this case the purchaser bought in the face of a recent statute which he was bound to know and obey, and purchased with his eyes open. ITe has no moral claim to have the sale made good. The act of the legislature which covers this case is unconstitutional and void.

Judgment reversed, and a venire de novo awarded.


text:
    Mevey v. Matthews et al.
    The plaintiff may call a defendant, -with, his consent, to prove that he is the principal debtor, and that the signatures by the other defendants, who are sureties, are genuine. And this, though judgment by default has been entered against the witness.
    In error from the District Court of Allegheny.
    Debt upon a note sealed by T. and W. Matthews and D. Nesbitt. Judgment had been entered against all the defendants, for want of an affidavit of defence; but it was opened as to Nesbitt, on his affidavit.
    The plaintiff then called T. Matthews, with his consent, to prove that he was the principal debtor, and that the signature of Nesbitt, who was a surety, was genuine.
    The court rejected the witness, and this was the error assigned.

      Hampton, for plaintiff in error,
    cited 11 Conn. Rep. 347; 6 John. C. Rep. 204; 1 Stew. & Port. 17; 1 Taunt. 378; 1 Binn. 395; 2 Ad. & Ell. 732; 2 W. & S. 172; 8 Ib. 87; 1 W. 270; 1 Wend. 119; 4 Ib. 457.

      Wood, contó,
    cited 5 Conn. Rep. 94; 1 Barr, 440; 1 Yeat. 144; 15 Johns. 223; 1 Greenl. Ev. 354; 3 S. & R.402; 3 Whart. 589.

      Sept. 15.
   Rogers, J.

There is no reason for any exception to the testimony, on the ground of interest; for the plaintiff offered to prove by the witness that he was the principal, and the other defendants sureties. His evidence is against himself, because it throws the debt on himself as the principal, without the right of contribution from the other defendants, who were but sureties. The case, therefore, does not come within the principle ruled in Miller v. McClenachan, 1 Yeat. 144, cited; where it was held, that in a suit against partners, one of the defendants, though willing, cannot prove the partnership. That case is put on the ground of interest; for, as is there said, he would exonerate himself of part of a partnership debt. What, then, is the objection to his competency ? It is said he is a party to the record, and, as such, incompetent to testify. And for this principle, Schermerhorn v. Schermerhorn, l Wend. 123, and The Supervisors of Chenango v. Birdsall, 4 Wend. 453, and other cases, are cited. But those cases only apply where the party suing and the party sued call them to testify in their favour. In these cases, they are excluded on grounds of public policy, independent of the question of interest. They do not apply where the opposite parties wish to avail themselves of the testimony, and where they are willing to testify. And this distinction is plain on reason and authority. It is settled, that a party has a right to examine his adversary, if the latter voluntarily consent to be examined, and is called against his interest. The party on the record is permitted to testify, because he waives his privilege, is willing to speak the truth, though against his interest, and voluntarily renounces the protection which policy as well as justice would otherwise have afforded him. The court decided, in Johnson v. Blackman, 11 Conn. Rep. 347, that where a party to a suit who has suffered judgment by default, waives the objection, and consents to be examined, and is called against his own interest, there is no ground, in principle or authority, for rejecting him. So also in Norden v. Williamson & Twibill, 1 Taunt. 378, it is ruled, that if the plaintiff and defendant are both willing that the plaintiff shall give evidence in the cause, he is an admissible witness, on his oath, although he comes to defeat the claim of another plaintiff suing jointly with himself. In Pipe v. Steele & Harvey, 42 Eng. C. L. Rep. 888, where one of two joint defendants in an action on the contract has suffered judgment, he may, if not otherwise interested in procuring a verdict for the plaintiff, be called by him as a witness against the other defendant. And to the same point, see Long v. Long, 1 W. 270. Judge Kennedy says, that where a defendant volunteers to give evidence against himself, there is no sound principle upon which he can be rejected. And why should he be rejected? His declarations, without oath, are evidence against himself and his co-defendants; and why should he not be permitted to declare the same on oath? These cases are in point; for here there was a judgment by default against the witness, who is offered by the plaintiffs, and the witness is willing to testify. Nor would it alter the case if there had been no judgment; and the jury was sworn as against all the defendants, as the defendant in error contends. The reasons on which the witness is admitted, apply as well to the one state of facts as the other.

Judgment reversed, and a venire de novo awarded.


text:
    Graff v. Bloomer.
    A carrier, Laving agreed to deliver goods in Pittsburgh, is liable for a loss by fire •which occurred after their arrival at his warehouse at Allegheny, to which he had removed some months before and occupied, as was the custom of the trade, until the aqueduct across the river to Pittsburgh was completed.
    In error from the District Court of Allegheny.

      Sept. 7. Case against defendants as carriers for the loss of goods. In April, 1845, the defendants receipted for the plaintiffs’ goods in New York, directed to Galena, Illinois, which they promised “ to deliver in like good order to H. & P. Graff, on presenting this receipt, and payment of freight at our warehouse in Pittsburgh, within eight days from Philadelphia, unavoidable delays on railroad or canal excepted.”
    When the goods arrived in Allegheny, they were deposited in a warehouse there, temporarily occupied by the defendants, whilst the new aqueduct across the river to Pittsburgh was being built. They, and all other companies concerned in this trade, had occupied warehouses in Allegheny-since the preceding September, and during this period the warehouse in Pittsburgh was disused, and no rent paid for it. One or two days after the goods arrived, the warehouse was burned, and the goods destroyed. There had been no opportunity for shipping the goods down the river after their arrival, until after the loss occurred.
    The court reserved the points, whether on the evidence there was a sufficient delivery or excuse for non-delivery, and whether the same might properly be inferred from the evidence; and after-wards gave judgment for the plaintiff on those points.

      McQlure and McOandless, for plaintiff in error.
    14 Wend. 215; 7 Cowen, 497; 8 Ib. 223; 4 T. Rep. 581; 5 Ib. 389.

      Slialer, for defendant in error.
    Eagle v. White, 6 Wh. 516; In re Webb et al. 4 Eng. C. L. Rep. 163; De Mott v. Larue, 14 Wend. 226.

      Sept. 11.
   Bell, J.

The defendants below are sued as common carriers, upon their extraordinary liability as insurers of the goods intrusted to them for transportation. These being destroyed by fire whilst in their possession, it is conceded they are liable to make good the loss, unless they had ceased to be common carriers at the time of the accident, by a delivery of the articles bailed to them at the place stipulated in their contract. The undertaking to transport goods to a particular place, necessarily includes the duty of delivering them there in safety, and hence it follows that where the responsibility of a common carrier has once begun, it continues until due delivery be made.

In this instance the defendants, by their agents, undertook to transport the goods of the plaintiffs by canal and railroad, and deliver them to themselves at their warehouse in Pittsburgh within eight days from Philadelphia, &c. Before making this contract the defendants, in consequence of the destruction of the aqueduct by which the canal was carried across the river Allegheny to the city of Pittsburgh, had temporarily abandoned the occupancy of their warehouse at the latter place, and, for some time, had deposited the goods of their customers in a warehouse erected by them in Allegheny City, on the bank of the river, opposite to Pittsburgh, a few hundred yards from the old place of deposit. Here the goods in question were destroyed whilst waiting for a steamboat by which to send them to the plaintiffs below, and consequently before any delivery to them. ^It is settled that if a carrier stipulates to deliver articles at a particular town or warehouse, and does so deliver them, he is exonerated from subsequent loss, though they never come to the possession of the consignee or owner) Thus, where the engagement was to carry certain goods from Stomport to Manchester, to be thence forwarded to Stockport by the first carrier going, and they were safely delivered at Manchester, and housed by the carrier in his own warehouse to await an opportunity to forward them to the place of their ultimate destination, it was held his duty as carrier was at an end, and he was therefore not liable to answer for the destruction of the goods in the warehouse by fire: Garside v. The Trent and Mersey Navigation Company, 4 T. Rep. 581. To the same effect is Ackley v. Kellog, 8 Cow. 223. In order to bring themselves within the saving efficacy of this rule, the defendants insist that, though not literally, they substantially fulfilled the engagement by the delivery at the warehouse in Allegheny, a place in the immediate vicinity of the warehouse in Pittsburgh, and, in fulfilment of their contract, to be considered as parcel of the latter city, being generally so considered and treated by persons residing at a distance. In support of this position, it is argued that the destruction of the aqueduct being of public notoriety, must have been known to the owner of the goods, or his agent, and he must, consequently, have been aware of the uselessness of carting the goods across the river to the deserted Warehouse, where they would have been more inconveniently situated in reference to further transportation to the plaintiff, in Illinois, than they were at the warehouse in Allegheny. But there is no proof that the plaintiff knew anything connected with the subject other than was disclosed by the contract itself; and the ready answer to the defendant’s position is, that they undertook to deliver at Pittsburgh and not at Allegheny. It has been repeatedly ruled that delivery at a point or place in close proximity with the place stipulated, will not relieve the carrier from his responsibility as such. Mere propinquity of delivery is no delivery. The question, in this aspect, was presented in Hyde v. The Trent and Mersey Navigation Company, 5 T. Rep. 889, where it was held, by all the judges, that an engagement to deliver goods at-the plaintiff’s house in Manchester, implied from charging the price of cartage from the defendants’ warehouse in the same town to the plaintiff’s house, was not discharged by a delivery at the warehouse in Manchester, and therefore the carriers Avere bound to make good a loss occasioned by fire at the latter place. In the course of his opinion, Grose, J., remarked: “The Hay which maizes carriers answerable as insurers is, indeed, a harsh law, but it is founded in wisdom and was established to prevent fraud. But it would be of little importance toidetermine that carriers were liable as insurers, unless they were bound to see that the goods Avere carried home to their place of destination, since as many frauds may be practised in the delivery as in the carriage of them.” The same doctrine is asserted by our own case of Eagle v. White, 6 Wh. 516; and the case of De Mott v. Laraway, 14 Wend. 226, decided by the Supreme Court of New York, is illustrative of the stringency Avith which it has been insisted on. There the carrier had engaged to deliver, among other things, a hogshead of molasses at a certain warehouse on the banks of a canal. While hoisting it from his boat into the warehouse, and when within a short distance of the sill of the window where it was to be received, the tackle employed in the operation parted, and the hogshead being thus precipitated into the boat beloAY was staved, and the molasses lost. It Avas held the carrier AYas liable to make good the loss, for though on the ^ve of delivery, the molasses was not delivered at the place stipulated by the parties, and so the employment of the carrier subsisted at the time of the accident, though one of the owners of the molasses was present. These cases are conclusive of this, and as they are within the policy of the rule upon which they are based, we feel no hesitancy in adopting them. They are, too, founded in reason. Hoay can we tell whether the plaintiffs would have agreed to a delivery of their goods in a warehouse in Allegheny City ? There might have existed many reasons to deter them; and a decision binding them to it would be not to vindicate the contract entered into, but to make a new one. It is certain the defendants knew they were not in the actual occupancy of their Pittsburgh warehouse when they made this agreement. If from this, or any other cause, it was inconvenient or improper to deposite goods there, they should not have so undertaken. But having done so, they assumed every risk attendant upon their non-compliance, and it is not for us, upon the strained notion that distant places may, from their nearness, be regarded as one, to take from the plaintiffs the advantage the law affords them. Their reply to the defendants, that Allegheny is not Pittsburgh, is unanswerable, and fixes them for the value of the goods spoiled.

On the argument, something was faintly said of the destruction of the aqueduct having interposed an unavoidable delay of delivery, within the meaning of the contract. These words, as used, evidently refer to the time to be consumed in the carriage between Philadelphia and Pittsburgh. But the question is not of delay of delivery — it is a question of destruction in transitu, before delivery made, for which no legal excuse is tendered.

Judgment affirmed.


author: Gibson, O. J.

text:
    Church v. Griffith.
    Buildings and fixtures erected by a lessee for years for the purposes of trade, are not the subject of a mechanic’s lien.
    Appeal from the District Court of Allegheny.
    Griffith and Dixon wore lessees for years of land on which they erected a building, to be used as a shovel factory. Machinery, furnaces, and chimneys were also put up in the building. The property of the lessees in the term and in the building, fixtures, machinery, and tools were sold by the sheriff under a fieri facias, and the question arose on tho distribution of the proceeds. Marshall, Bradley & Co. claimed the proceeds under a mechanics’ lien for bricks and castings furnished the lessees for the stacks and furnaces erected on the land. Their claim was allowed by the auditor, but disallowed by the court, and from that decree they appealed.

      Mellon, for appellant.

      Woo4, contó.

      Sept. 18.
   Gibson, O. J.

In Lemon v. Miles, 4 Watts, 330, we held that a steam-engine set up by a lessee of salt-works, might be seized and sold by an execution-creditor as personal property. In that case, the question was, in effect, between the landlord and his tenant, who benefited by having his debt paid out of the property ; in this it is between the creditors of the lessees, some of them claiming the property as leasehold by virtue of mechanics’ and material men’s liens, and some of them claiming it as unbound personal chattels. The building was erected on a lot under a lease for years; and, being erected on a chattel estate, it was itself a chattel; so that the case is stronger than if it were between the lessor and the lessee, in respect to whom, fixtures for manufacturing purposes, are chattels only, for the encouragement of trade. In Dalzell v. Lynch, 4 W. & S. 255, a lease for years was held to be legally sold on a fieri facias without inquisition or condemnation. The fixtures in this case are consequently to be treated as chattels, not only in regard to the lessor, but in regard to every one else. By the act of the 28th April, 1840, a mechanic’s lien is restrained to the estate which the contracting owner had in the soil; but it is not perceived how a chattel interest in the soil can be subject to such a lien any more than^how it can be subject to the lien of a judgment. The stat. Westm. 2, which indirectly gave the judgment-creditor a lien, gave him execution of the debtor’s lands, which subsequent interpretation fixed to be the lands held at the time of the judgment: the act of 1836, which creates the lien in question, gave the mechanic or material man execution of the building to which he contributed his labour or materials, without regard to the quantum of the estate held by the contracting owner; and had the law remained on that foot, the plaintiff, in a case like the present, would have recovered the fee simple value. All the statutes on the subject before 1840, treated the estate to be bound as a fee. The scire facias prescribed by the act of 1836, and still in use, calls on the contracting owner to show cause why the debt should not be levied, not of his estate in the ground, but of the building; the judgment is that it be levied of the building; and the levari facias commands the sheriff to levy it of the building. The notion that a chattel can be bound by the lien separate from the possession, has not been familiar to us all, and consequently could scarce have been entertained by the legislature. The very name of the execution shows that it was not; for though chattels may be sold, on a levari facias at the common law, it had never been used or prescribed in Pennsylvania, for the sale of anything but mortgaged land. The common-law form of • the writ is essentially different from the form of it prescribed by the act of 1836. Moreover, the provision for setting off and selling a reasonable curtilage with the building, presupposes the existence of a freehold interest in the soil, not a chattel interest on the surface of it. For this reason it was that we held in Holdship v. Abercrombie, 9 Watts, 52, that the lessee of a lot who procured a building to be erected on it for purposes of trade, subjected the fee simple of it to liens for labour and materials; and that the chattel interest of the lessee was not the thing intended to be bound. The supplemental act of 1840 was produced, not by that case, but by Beckel v. James, 7 Watts, 9, in which it had been determined that a sale on a mechanic’s lien, filed against a contracting owner who held by articles of purchase, divested not only the equitable estate of the vendee, but the legal title of the vendor. There, however, the vendee had an equitable fee to be bound; and the legislature evidently intended to do no more than subject it exclusively to the lien — in other words, to contract, rather than extend the surface of its operation. The principle of Holdship v. Abercrombie, had been asserted in Anshutz v. McClelland, 5 Watts, 487; yet the legislature did not move in the matter till four years had gone by — and what was its eventual enactment ? No more than that the act of 1836 “shall not extend to any other or greater estate in the ground, on which any building may be erected, than that of the person in possession at the time of commencing the said building, and at whose instance the same is erected.” Now, though a lessee has an estate in the land, it comprises no more than his interest in the term, and gives him merely a right to occupy the ground for the time agreed, which is one thing, and not a right of property in the chattels put upon it, which is another. At most he could only sell the use of them for the term. The interest in the lease is a right of occupancy, and hence it is a chattel real; but fixtures which are not part of the freehold as to the lessor or any one else, are chattels personal, which cannot be bound as a part of the lessee’s estate in the ground, even if his lease were bound. That they were separate property in this instance, is proved by the fact that they were sold on writs of fieri facias by antagonist creditors. Were the tenant himself to sell his “ estate in the ground,” no more would pas.s than the use of the building and fixtures; and it is not easy to see how the sheriff could sell more. By selling the lease he would part with no more than what he had derived from the landlord; not the chattels pro- ■ cured by him to make it available. At the extinction of the chattel real in the one casé and in the other, the chattels personal would remain on the ground as the property of him who put them there. As to the property in contest, the consequence is that the plaintiffs would not have been more secure with a lien on the leasehold, than they are without it. The auditor made a distinction between such parts of the castings as were fixed, and such as might come under the denomination of tools; but as all were chattels, whether fixed or loose, it was a distinction without a difference. Against the landlord, the creditors might treat the fixtures as chattels; and they have at least an equal right to treat them as such against those who do not even pretend to claim them as freehold. Strictly speaking, the question is not whether the estate in the lease was bound by the lien, but whether the absolute property in the building and materials was; yet as the cause has been argued on the broadest ground, it is proper to say that nothing which is merely leasehold, is now within the purview of the act of 1836. It might perhaps be thought politic and proper to extend such a lien to both; but to do so, would require further legislation, which we are incompetent, if we were willing, to supply. The auditor’s report therefore was properly corrected..

Decree affirmed.