text:
    Champlin v. Williams.
    A purchaser by parol of part of a tract of land, who pays off a mortgage on the whole to prevent a sale, is entitled to be subrogated to the mortgage, and a judgment recovered thereon.
    In error from the Common Pleas of Erie.
    Champlin purchased land from Williams, took a deed in his own name, and gave a mortgage for the purchase-money. Subsequently Pomeroy, Kissam, and Treadwell purchased three-fourths of Champlin’s interest in this purchase. Kissam and Treadwell’s right was sold to Gorham and Atwater. So far as the record showed, these purchases under Champlin were all by parol.
    Williams recovered a judgment on his mortgage, and was about selling the land when Gorham paid the debt, and took an assignment of the judgment. There was evidence that Champlin requested Gorham to make this payment.
    Gorham then issued a scire facias to revive the judgment on the mortgage to his use. On the trial Champlin set up that the payment to Williams was an extinguishment of the debt, &c.
    Church, P. J., said this would be so if Gorham had any interest in the land, but of this the court could see no evidence, and therefore he was entitled to recover.

      J. G. Marshall and Galbraith, for plaintiff in error.

      Kelso, contra.

      Oct. 9.
   Coulter, J.

(after stating the case.) — The defendant below alleges, and his counsel here strenuously contended, that in consequence of the payment by Gorham, the judgment and mortgage were satisfied and merged in the legal title of Champlin. But there,,was in fact or in law neither satisfaction nor merger. The court below seem to admit that if Gorham had any interest in the land which was bound by the mortgage, that a payment by him would be a satisfaction. This is very unsafe ground upon which to place the cause. A trust can be established by parol; it requires no delivery of possession. Gorham had made large payments and was a cestui qui trust as to one-fourth part of the land, as clearly proved, and as admitted all through the case. A trust estate, an equitable title, or any other title arising out of land, may be bound by judgment, levied on and sold. . I do not, therefore, adopt the view of the court below on the subject, but place the decision on positions more sure and tenable. Gorham had no other means of saving his own interests than the one he adopted. There was no privity of contract between him and Williams, and Williams had no hold on him personally, by contract or judgment. He stood to Williams, as it respected the judgment, in the attitude of a stranger. In re Magill, 6 Barr, 504, it was ruled that a purchaser who pays a judgment on which his land was seized in execution against his vendor, is entitled to subrogation as to the remaining land of the vendor. There the purchaser was bound to pay the judgment which was a lien on his land, or lose it; so here Gorham was bound to pay the judgment which bound his interest in the land, or lose it. And if, in the former case, thé judgment was kept on foot by subrogation, why should it not be kept on foot in the latter by the assignment ? Williams, the plaintiff, could not have had power to raise money out of Champlin’s property, merely for Champlin’s benefit, therefore if Champlin, or anybody for him, had paid the judgment, it would have been merged or extinguished. But if another person paid the judgment, the case would be different, and would be precisely within the case of Chamberlain v. Ewer, 2 Bulst. 11, where there was an intervening interest and an intervening person. A mortgage will not be considered as extinguished by a conveyance of the mortgagee’s interest to the owner of the equity of redemption, if it is the interest of the grantee to have it upheld, unless the intent of the parties to extinguish it is clear : Pool v. Hathaway, 9 Sheph. 85. Here it is manifest that the intent of the parties was to keep the mortgage on foot, because it is assigned; and it is equally clear that it would be against the plainest principles of equity to hold it extinguished as regards Gorham. There is still a stronger case — stronger in analogy — where one who has a right to redeem land mortgaged, pays the amount due and takes an assignment, the mortgage may be considered as discharged, or as still subsisting, according as the justice of the case may require: Bailey v. Willard, 8 N. Hamp. Rep. 429. In this case the money was paid by Gorham, at the request of the persons interested, who were totally insolvent, and with an express arrangement that he should make himself safe out of the property; and this fact clearly proved, brings- the case also within the principle stated by Lord Hardwicke in Chester v. Willes, Amb. 246, that when the owner of the fee in which the charge would otherwise merge, manifests his intent that the charge should subsist, his intent shall prevail. To the same point may be cited 6 Barr, 16. The position so much urged, that Gorham, Atwater, Pomeroy, and Champlin were partners in the land, and that a payment by one partner and an assignment to him shall be for the benefit of the whole, and therefore an extinguishment, has no weight, because, in the first place, there was no partnership, at least no evidence of it. Land is only held in partnership where one has been formed for the purpose, or where land is conveyed to an existing firm as partners. There is no evidence whatever of a partnership. The land was held by Champlin in trust, as proved by parol, for himself and three others. The tenancy would therefore be in common. But a stronger answer exists in the fact that Gorham paid the money and took the assignment to secure himself, at the request of Champlin and the others. Whether, upon paying up their full proportions of the purchase-money with interest, they will be entitled to a share in the land or not, it would be improper to say, as that aspect of the question is not embraced in the case. Gorham is entitled to judgment and execution on the mortgage, which is still on foot according to the intent of the parties.

Judgment affirmed.


source: Caselaw Access Project

author: Burnside, J.

license: Public Domain

text:
    Stafford v. Ames.
    Vendee of chattels after rescisión of the bargain is a good witness for his vendor in trover for the goods.
    A cropper entitled to a share of the grain may maintain trover against the owner of the land who cnts the grain and refuses to deliver it up.
    In error from the Common Pleas of Erie.
    Ames and Stafford occupied land together, which was cultivated by Ames for a share of the crop. Ames left the premises, and Stafford cut the grain and refused to deliver any part of it to Ames. The court said this gave Ames a sufficient title to the grain to enable him to bring trover.
    There was a question of evidence, which is fully stated in the opinion of this court.
    Babbitt, for plaintiff in error.

      Galbraith, contra.

      Oct. 2.
   Burnside, J.

On the trial, in the Common Pleas, the plaintiff offered Wm. Nutting as a witness. The defendant requested that he should be sworn and examined on his voire dire, which was done by the court. Nutting said, “I made a bargain with Ames, after he sowed the wheat; I was to have it on conditions like this: I bought it, agreeing if it turned out well, to give him thirty bushels; if riot, he should make it up to me. Says he, I will. I was not to lose anything in cutting it. I gave my note to Ames for thirty bushels of wheat; the condition was not in the note. After I was refused leave to cut the wheat, plaintiff gave me up the note. This was before it was harvested. Then our agreement was rescinded.” The witness was then offered in chief, and admitted ; and this forms the first error. The plaintiff in error relies on the case of Clover v. Painter, 3 Barr, 46, as supporting his exception. There is but little resemblance between that case and the present; There, Bachman, the witness, was a partner of Painter’s, and the debt in question went into the firm; after that, when the witness left the concern, he re-assigned it to Painter. Although this case differed from Post v. Avery, in 5 W. & S. 509, and the like cases, in one particular, yet he was the assignee of the original creditor, and therefore we held him incompetent. But in the case before us, the wheat never passed into the hands or possession of Nutting. The plaintiff in error prevented him from harvesting the wheat and obtaining possession, and the contract was rescinded. It was further contended that the plaintiff had no property in the wheat, and therefore could not maintain trover. It is true, to maintain this action the plaintiff must have property in the goods, and the actual possession, or the right to immediate possession: 3 S. & R. 512-13. The defendant was a cropper, not a tenant; his agent was prevented from cutting and threshing the wheat; he was illegally kept out of the possession, and had a right to the immediate possession. There is no other alleged error worthy of notice.

Judgment affirmed.


author: Rogers, J.

text:
    Smith v. Elliott.
    Where plaintiff declares for a nuisance, and under the general issue pleaded a former recovery under a similar count, is shown the plaintiff is not concluded from recovering for injuries since resulting from a continuance of the nuisance. Tor, to estop the plaintiff, the former recovery must he pleaded. To avoid the estoppel, the plaintiff must declare for a continuance of the nuisance.
    Parties who cause a nuisance by acts done on the land of a stranger are liable for its continuance: and it is no defence that they cannot lawfully enter to abate the nuisance without rendering themselves liable to an action by the owner of the land.
    In error from the Common Pleas of Erie.
    ' Case for a nuisance, by breaking the bank of a water-course, and diverting the water from plaintiff’s mill. The plaintiffs gave in evidence the record of a recovery by their grantor against C. Elliott, and defendant, in which the count was the same as that filed in the present cause, with the exception of an omission to aver any day on which the act was done. They then proved that defendant had purchased the property benefited by the act, from O. Elliott. They then proved the continuance of the nuisance. The defendant proved the breach in the bank was on the land of a stranger, and he insisted the former recovery was conclusive.
    Church, P. J., instructed the jury the former recovery was conclusive of satisfaction for all consequential injuries for acts then done, but defendants were liable for the continuance of the nuisance if they had done any new act.

      Wallcer and Galbraith, for plaintiffs in error,
    insisted that they were entitled to recover for the continuance of a nuisance under the narr., and that it was not necessary to show that any new act was done: 17 S. & R. 320; 5 W. 120.

      Babbitt and Marshall, contra.
    The counts are for the same cause, and the recovery is conclusive: 3 H. & McH. 441; 9 Mass. Rep. 316; 13 Ib. 420; 7 Pick. 198, 203; nor could he be liable when the nuisance was on the land of a stranger.

      Oct. 9.
   Rogers, J.

The whole difficulty attending this ease arises from a want of attention to the pleadings. The plaintiffs, instead of declaring for the continuance of the nuisance, file their declaration for the same cause between the same parties or their privies, before tried, and in which verdict and judgment were rendered. And the defendant, instead of pleading the former recovery in bar of the action, pleads the general issue. It is not denied that the defendant may give in evidence a former recovery in an action on the case for a nuisance, under the plea of not guilty, but it is not, as the court ruled, conclusive. This point is decided in Vooght v. Winch, 2 B. & Al. 662. A verdict, as is there held, obtained by the defendant in a former action, and which, if pleaded in bar, would be ah estoppel, when given in evidence under the general issue is not conclusive against the plaintiffs, but only evidence to go to the jury. The defendant elected to refer the matter to the jury. If the party will not rely on an estoppel when he may, the jury are not bound by the estoppel, for they are sworn to find the truth: Kilheffer v. Herr, 17 S. & R. 322.

As this case must be reversed for the direction of the judge, we take it for granted the narr. will be amended; it will therefore be convenient, if not necessary, to notice some matters which have occurred in this, and doubtless will arise on another trial. In an action for the continuance of a nuisance, a verdict and judgment in a former action in which the same matter is in controversy between the same parties, or privies, is conclusive of the right, and also the damages to the time of the commencement of the first suit. All the plaintiffs are required to do, is to give in evidence the judgment in the former recovery, and to prove that the nuisance remains in the same, or worse situation than before. On proof it has not been removed, the plaintiff is entitled to a verdict, for the case cannot be re-tried: Kilheffer v. Herr, 17 S. & R. 319

The defendant insists that the plaintiffs cannot sustain the action even for a continuance of the nuisance, because the nuisance was erected on the land of a third person; that consequently he cannot abate it without committing a trespass, which' the law will not compel him to do; and that, moreover, damages were, or might have been given, commensurate with the plaintiffs’ injury in the former action. These suggestions are not without force; but although the point is new in this state, it has been already ruled in Thompson v. Gibson et al., 7 M. & W. 456. The case was an action on the case for continuing a nuisance to the plaintiff’s market, by a building which excluded the public from a part of the space on which the market was lawfully held. It appears that the building was erected in October, 1838, under the superintendence and direction of the defendants, not on their own land, but on that of the corporation of Kendal (of which corporation they were members). The Earl of Lonsdale was the owner of the market, in October, 1839; and in February, 1839, he demised it to the plaintiff, and the market being afterwards obstructed by the building, the action was brought. It was held that the defendants were liable for continuance of the nuisance, although they had no right to enter on the land to remove it. Baron Parke, who delivered the opinion of the court, in answer to the very point here made, uses this language: “ It was also said, that the defendants could not now remove the nuisance themselves, without being guilty of a trespass to the corporation, and that it would be hard to make them liable. But that is a consequence of their own original wrong, and they cannot be permitted to excuse themselves from paying damages for the injury it causes, by showing their inability to remove it, without exposing themselves to another action.” And the principle is just as applicable to this case, as the defendant has had, and now enjoys the benefit of the flow of water at the expense, and to the injury of the plaintiffs.

Judgment reversed, and a venire de novo awarded.


author: Bell, J.

text:
    Dayton v. Gunnison.
    Where a promise is made for a valuable consideration to pay a debt due by the promisee, a right of action accrues after a reasonable time for performance has elapsed; and it is immaterial to the right of recovery, whether the promisee has paid the debt or not.
    In error from the Common Pleas of Erie.
    The declaration and evidence, in this case, according to the verdict, was in substance this: — Fross, the plaintiff’s intestate, was the owner of lands which he had mortgaged to secure his bond to Hart & French. Dayton, the defendant, was a creditor of Fross, and purchased the land. An agreement was then made between Dayton and Fross, by which their accounts were settled, and a bond given by the latter to the former, in settlement, and also in consideration that Dayton would pay the bond of Fross, held by Hart & French. Several years elapsed, and this bond was not paid, but suit was brought on it, and judgment recovered against Fross.
    Church P. J., instructed the jury that the defendant had a reasonable time to fulfil his engagement; and on failure to comply, an action accrued, and the measure of damages was the debt and interest — it being unnecessary for the plaintiff to show either that he had paid the debt, or even, that suit had been brought against him.
    The other points were immaterial.

      JE. Babbitt, for plaintiffs in error,
    cited Morrison v. Berkey, 7 S. & R. 238 ; Hassinger v. Solms, 5 Ib. 8; 2 Com. Con. 182; Powell v. Smith, 8 Johns. 249 ; Powell v. Elliott, 5 W. & S. 525.
    Galbraith, contra,
    cited 6 Watts, 349.

      Oct. 7.
   Bell, J.

The contract averred in the second count of the plaintiff’s declaration, being proved 'to the satisfaction of the jury, nothing can be clearer than his right to recover the full amount of the debt which the defendant undertook, but failed to discharge. It is totally unlike the casé of a surety, who, though bound to pay, cannot maintain an action against his -principal, until he has actually paid; for it is only then his principal is in default. But here, one for a valuable consideration received, undertook, absolutely, to pay a debt for which another is responsible. No time being expressly ascertained, within which the agreement is to be performed, the law allows to the promisor a reasonable time. But, regardless of his obligation, he permits nearly five years to roll round; at the end of which time the original debtor is sued, before he institutes an action upon the agreement of the defendant. For the breach of such an undertaking, the measure of damages is the amount the defendant undertook to answer, and to which the plaintiff remains subject. It is not necessary he should have paid; it is enough that he is compellable to pay. The undertaking of the promisor is violated by leaving him open to be called on; and the case affords no other standard than the whole sum for which he remains liable. The answer of the court to the fourth and fifth points was therefore correct.

There is nothing in the third assignment of error. The testimony of the witnesses named in it did not necessarily contradict Mrs. Fross. Were this otherwise, being at most but a mistake of fact, it is not imputable here as error.

The instruction that it was the duty of the jury to endeavour to reconcile apparently conflicting testimony, was so tritely right, it is strange counsel should have thought of complaining of it.

Judgment affirmed.


author: Gibson, C. J.

text:
    Lowry v. Coulter.
    The confession of a judgment ■without the intervention of the creditor, and an immediate issue of execution at his request, does not afford a legal inference of fraud on creditors, though there be no other proof of the existence of the debt.
    A return of a levy on personal property, not within the view of the sheriff, and not taken into custody, is no levy as to subsequent judgment-creditors.
    If the sheriff be directed by the defendant acting for the plaintiff to proceed no further, the execution is fraudulent as to creditors.
    Amendments of a return in other particulars than those stated in the affidavit on which the order to amend is made, are nullities as to other creditors, and no evidence of the facts thus stated.
    On a collateral issue between two creditors to try the right to the proceeds of a sheriff’s sale, the return of the sheriff is but primit facie evidence.
    In error from the Common Pleas of Yenango.
    This was a feigned issue directed between Coulter & Co. and Lowry, who were execution-creditors of Reynolds & Son, to try the right to the proceeds of a sheriff’s sale of personal property.
    In May, 1846, Lowry filed a transcript of a judgment recovered in another county against Reynolds. On the 1st of August, 1846, Reynolds, at his own instance, confessed judgment to Coulter & Co. and several others, and executions were issued. The evidence was that there was a written direction for an execution from Coulter and Co.
    On the 8d August the sheriff returned a levy on certain personal property, consisting of wood, coal, ore, &c., at a furnace. The return concluded thus: “ The above levy was taken from a schedule given me by defendants’ clerk. I did not see the property at the time nor since. I was likewise ordered to proceed no further in the case.”
    On the 26th August Lowry issued an execution on his judgment. The same goods or a part of them included in the former return were levied on under this writ, and a return made September 16th.
    On the 12th of September the sheriff made, an affidavit that the return, “ where he says, ‘ I was likewise ordered to proceed no further,’ conveys a different meaning than was intended to be conveyed by him: that he intended only to say that he had no positive orders to proceed any further, and he does not say he had -no orders to proceed or not to proceed, from the plaintiffs or their counsel.” On this the court allowed the sheriff to amend his return.
    The amended return was: “The above levy was made on the day it bears date when at the store, and upon the premises of the defendants, where the property was, and in full view of portions of it, the items being taken from a schedule furnished by defendants’ clerk in pursuance of my previous request. No positive order having been given by the plaintiff or his attorney, as I expected to proceed further — the property was not sold and this writ is returned.”
    A vend. ex. then issued, to which the sheriff returned: “ It will be seen that the above statement of property sold, does not amount to the schedule given me by defendants’ clerk, as will be seen by endorsements on the fieri facias, for the following reasons: — ■ First, a part of the property was claimed by other persons, and the plaintiff refused to give me an indemnifying bond on the day of sale; and, second, the defendants’ clerk gave me a bill of more property than was owned or claimed by defendant at the time the clerk gave that list.”
    The evidence showed that part of the property levied on was sold by Reynolds before the sheriff’s sale, and part was consumed at the furnace.
    Church, P. J., in answer to defendants’ points instructed the jury, that the facts connected with the entry of the judgment, and the issuing the executions without evidence of indebtedness aliunde did not'prove fraud, because of the proof-that the execution was issued at the request of Coulter & Co. That the amended return was the only one the jury could look to, and that showed a good levy; and if it were false, Lowry had his remedy against the sheriff. .Its correctness could not be gainsayed in this action. Nor could Lowry insist upon the first return, because he had issued an execution on the faith of it. Nor was the plaintiff responsible, or his judgment paid pro tanto, by the sheriff leaving property in the hands of the defendant, which was lost. Nor was it material that Reynolds’s design was to delay or hinder Lowry, if not known, to the plaintiffs.

      Riddle and Pearson, for plaintiff in error.

      R. Brown, contrh.

      Oct. 11.
   Gibson, C. J.

Prima facie, no fraud is apparent in the confession of the judgment to Lowry & Son. At common law, a debtor might prefer particular creditors, and whether by assignment in trust, or by judgment and execution, was indifferent, the manner of doing it being modal. If, however, the purpose was not to prefer, but to delay, the transaction, in whatever form, would be within the 13 Elizabeth. The purpose may be a matter of inference by the court, or it maybe a matter of inference by the jury. In Twines’ case their respective functions were not distinguished and defined — an omission that has led to much misconception. Here we have to do with the functions of the. court, and to inquire whether the facts disclosed by the evidence, made the existence of fraud a legal conclusion. Lowry had filed a transcript of his judgment in Crawford county,' against Reynolds & Son, in May, 1846; and in the following August they went in person to the prothonotary’s office, confessed judgments to Coulter & Co. and two others, on bonds in the handwriting of Reynolds, the father, and ordered executions. Another bond was put into'the hands of an attorney, with instructions to enter it and proceed. On these judgments executions were issued and levied the next day but one. Now from this, there is no legal inference that the purpose was not to prefer these creditors, but to delay their competitors ; and the case is not within the purview of the 13 Elizabeth by legal inference, though a jury might find it to be so by inference of fact. It is urged, however, that it is marked with such precipitance and sweeping disposition of the property, without the knowledge of the parties to be benefited by it, as to call for proof that Reynolds & Son were actually indebted to them. But is the suspicion created by the circumstances to be disposed of by the court or by the jury ? In urgent cases, before the statute which prohibited preferences by general assignment, the execution of the instrument was often as precipitate, and its provisions always as sweeping; yet though the preferred creditors were not present or consulted, no one supposed that those circumstances raised a legal presumption that their debts were covinous or feigned. The statute does not extend to preferences by judgment and execution, which is only a mode of payment; and as there was no legal presumption that the debt of Coulter & Co. was pretended, the judge was not bound on that head to give the instruction required.

But the unamended return to the fieri facias showed that the levy was insufficient, colourable, and void; and the amendment allowed did not essentially vary it. “The above levy,” it was added, “ was taken from a schedule given me by defendant’s clerk. I did not see the property at the time or since. I was likewise ordered to proceed no further in the case.” According to Wood v. Vanarsdale, 3 Rawle, 401, there was no levy at all. What we call a levy is a seizure — in England an actual one. — but an officer cannot seize what is not within' the range of his view. True, it was held in that case that a levy is good if the property be within the power and control of the officer, provided it be followed up by possession within a reasonable time, and in a manner to proclaim the fact. In this, the property was at no time within the sheriff’s grasp; and so far was he from having taken possession of it, that he left it in the hands of Reynolds & Son, the debtors, to be dealt with as their own in the ordinary course of their business. In Trovillo v. Tilford, 6 Watts, 468, it was ruled that though actual seizure is generally necessary, the defendant may dispense with it for his accommodation ; and that the dispensation is good .ground to found an action of trespass against him for removing or detaining 'the goods: in other words, that it gives a constructive possession of them against himself. But is it good to keep off other creditors ? Any agreement between the, debtor and the sheriff, which is not contrary to the policy of the law, binds them; but it binds no one else. That the sheriff had not seen or seized the property, is not the only impediment in the way of Coulter & Co., which grows out of the unamended return. He averred in it that he was directed to proceed no further. By whom, was not specified ; but as Reynolds & Son controlled the execution, it must have been by them. But whether it was by debtor or creditor, the legal effect of the direction was the same, and equally evincive of a design to apply the execution as a cover. If Coulter & Co. permitted Reynolds & Son to direct the application of it, they are bound by what was done; and so conscious of it were they, that they procured the sheriff to amend his return. In the affidavit to found the motion, he swore that the return within referred to, where he said, I was likewise ordered to proceed no further,’ conveys a different meaning than was intended to bfe conveyed by him; that he intended only to say that he had no positive orders to proceed any further from the plaintiffs or their counsel!!!” What mattered it that he had no order from Coulter & Co., if he had an order from Reynolds & Son, of whom he was the instrument? that he had no express order even from the latter, if It were hinted to him that he need give himself n'o further trouble in the business ? On the foot of this affidavit, however, the court gave him leave to do what ? Undoubtedly to amend only those parts of his return which he swore were not what he intended them to be. But under this leave, he returned new and original matter not sworn to, and contradictory of the most material circumstances in his original return: — “ In pursuance of the order of the court, I hereby alter and amend my return according to the facts following, to wit: The above levy was "made on the day it bears date, when at the store, and on the premises of the defendants, where the property was, and in full view of portions of it, the items being taken from a schedule furnished by the defendant’s clerk, in pursuance of my previous request, no positive order having been given by the plaintiff or his attorney, as I expected to proceed further: the property was not sold, and this writ is returned.” It is impossible to reconcile, on the ground of misapprehension, his affidavit to his original return, or his amended return to his affidavit. He had no power to amend except by the allowance of the court, or any further than its authority gave the license. But the only amendment he had laid a ground for by his oath, was the allegation that he meant to say that he had no positive order to proceed or not to proceed from the plaintiffs or their counsel; and to explain this strange misconception, he made a new return, containing not only the matter sworn to, but matter contradicting his original return, in which he had averred that he had not seen the property. But an unauthorized amendment is void, and the extent of the authority is to be measured by the extent of the affidavit to found it. In contemplation of law, the amendment was made when it was licensed, the affidavit being a sufficient material when necessary to reduce it to form. The case is a pregnant proof that no amendment should be allowed, except for reasons expressly stated and sworn to. An arbitrary power of amendment would frequently prejudice a third party; and though it might give him an action against the officer, his personal responsibility would frequently be an inadequate security for the damages. The return stood amended, therefore, only as to the order not to proceed; and such a levy was not returned as would exclude Lowry’s execution. The court erred, therefore, in charging, not only that the amended return was valid to the extent of it, but that it could not be gainsayed in the particular issue. It might be entirely disproved by evidence aliunde. Of facts legitimately set forth in a sheriff’s return, it is conclusive only in the cause in which it is made, as in Wilson v. Hurst’s Executors, Pet. C. C. 441; of facts incidentally in question in a contest with a third party, it is primá facie, as in Gyfford v. Woodgate, 11 East, 297 ; and of facts introduced into it by amendment without leave, it is no evidence at all. The return, even as legally amended, presents a case which, if not disproved by evidence aliunde, is decisively against the right of Coulter & Co. to the money, to say nothing of the testimony that the ore, metal, and coal on the bank, continued to be used, sold, and consumed, as they had been before the execution was issued. The evidence of actual and not legal intention, is not for us at present, -whatever it may be for a jury hereafter; but so far as legal direction was involved at the trial, it was the duty of the judge to charge that if the sheriff did not see the property at the time of the levy and after it, or that if Reynolds & Son directed him not to proceed, the execution was fraudulent and void, and Lowry was entitled to the verdict.

Judgment reversed, and a venire de novo awarded.


text:
    Sparks v. Commonwealth.
    It is not error to sentence a defendant convicted on an indictment found “A bill,” omitting the 'word “ true.”
    Selden moved the court to allow a writ of error to remove the record of an indictment for perjury, on which the defendant was convicted and sentenced, in the Quarter Sessions of Crawford county. The suggestion of error was, that the grand jury had endorsed the indictment “A bill,” ommitting the word “true;” which, he said, is asserted to be indispensable, by every writer on criminal law.

      Sept. 11.
   Gibson, C. J.

It is true, that the formal mode of finding an indictment is thus to endorse the bill; but it is not said by any writer to be the only one. On the contrary, it is said in 1 Chitty’s Or. L. 324, that though the endorsement is, if found, “ a true bill,” and if not found, “not a true bill,” yet the better way, in the latter case, is to endorse “not found,” and it would consequently be good to endorse it “found.” But, to endorse it “a bill,” is in effect to endorse it so; for though an indictment is strictly called a bill.before it has been found, yet it is, in common parlance, often called so afterwards. In this instance, the omission of the word “ true” may have been deemed immaterial, or it may have been accidental; but the court might have supplied it in either case, as “matter of form not touching matter of substance.” The grand jury certainly intended to do something; as they did not intend to endorse the bill “ ignoramus,” they intended to endorse it a true bill. The omission- was one of those clerical slips which, it is well settled by Ilawk B. 2. ch. 25, s. 97, and Ohitty’s Cr. L. 297, 325, the court has power, by the previous assent of the grand jury, to amend.

Allocatur refused.


author: Coulter, J.

text:
    Thomas v. Phillips.

    The right to avoid an assignment voidable by creditors, for fraud or for non-compliance with the registry act, vests in the insolvent trustees of the assignors, to the exclusion of prior judgment-creditors, whose executions issued subsequently to the date of the assignment to such trustees.
    And this, though no acts in avoidance of such assignments were done by the trustees : and where it was shown they had, as individual creditors, ratified them by accepting dividends, and had declared they were advised they had no right, as trustees, to the assigned property, and had not called upon the voluntary assignees for an account.
    Where an insolvent was discharged, under the act of 1836, without having executed the assignment, as required by the act, and the court subsequently allowed such an assignment to be executed, and the trustees’ names inserted, it was held, that such trustees had the exclusive right to avoid fraudulent assignments, made by the insolvent as against a creditor levying execution subsequently to the perfection of the insolvent assignments.
    In error from tbe District Court of Philadelphia.

      March 9-13. The questions in this case were: 1. Whether the assignments- of R. and I. Phillips, hereinafter referred to, were voidable' by creditors ? 2. Whether the plaintiff below, under his attachment execution, was entitled to avoid it, or whether the right so to do was exclusively vested in the insolvent trustees of the assignors.

      The first assignment, made on the 22d March, 1887, was a partial one, and will be seen stated in Weber v. Samuel, ante, vol. 7, p. 500, where it was held to be voidable fob want of a registry, in conformity to the act of 1818.
    The second assignment was made June 22, 1837, and will be found ante, vol. 7, p. 501; where it was held to be voidable because, stipulating for a release, it did not purport to convey the separate property of the assignors.
    On the trial of the case, before Stroud, J., the plaintiff showed an attachment execution, issued to March Term, 1841, on a judgment previously recovered against R. and I. Phillips, which had been served on the assignees under the above-mentioned assignments as garnishees. lie also read their answers to his interrogatories, admitting the receipt of funds under those assignments.
    The defendants gave in evidence the record of the discharge in insolvency of the assignors above-mentioned. By this it appeared, that the orders of discharge were made upon the common petition and affidavit, in October, 1837, each order reciting that an assignment had been made to-, in trust for his creditors. But it also appeared, from the record, that these assignments were not signed by the assignors, nor were the names of the trustees inserted until September, 1838, when they were perfected in these particulars, under an order of the court. The plaintiff also showed that ineffectual attempts had been made by certain creditors from 1838 to 1842, to procure the removal of the insolvent trustees, on account of their alleged interest to sustain the prior voluntary assignments.
    The plaintiff further read the depositions of the insolvent trustees, taken before a commissioner in bankruptcy. One of them stated he had, as a creditor of R. and I. Phillips, executed a release and received a dividend, under the June assignment. That he had received no funds as trustee in insolvency, nor as such trustee received or settled any account with the voluntary assignees. That he had always been ready to perform his duties as trustee; had an intimation of some estate belonging to R. and I. Phillips, but did not recollect what it was; he was advised by his counsel he had nothing to do with it — the property belonged to the assignees, and the assignment, he understood, had been confirmed in the Supreme Court.
    The other trustee stated he had not called on the assignees for their accounts; he had been advised his duties would commence where theirs ended. He also was a releasing creditor, under the June assignment.
    There was no evidence of 'any action taken by the insolvent trustees, adverse to the voluntary assignments.
    The court directed a verdict for defendants.
    The admission of the insolvent proceedings in evidence, and the charge, were the errors assigned.

      Gruillou and Q. Fallon, for plaintiff in error,
    argued that the assignment of June was voidable, because it did not purport to convey separate assets of the partners, and yet required a release which would discharge such assets from liability to the partnership creditors. The argument, as to the March assignment, is stated in the report of Weber v. Samuel, 7 Barr, 500.
    On the right of the insolvent trustee, they contended, that there being no execution of those assignments until one year after the discharge, they were unavailing, nor could the order of the court 'give them a retro-active effect. By the act of 1814, a signing was unnecessary, since the discharge, without more, vested the property in the trustees. This has been altered by the act of 1836, which cautiously requires three distinct things — the oath, the execution of the assignment, and the discharge.
    That the discharge having been granted without an execution of the assignment, the whole proceeding became coram non judice. [Bell, J. — You do not deny, that if the court had jurisdiction, the property passed.] If it had, then a right of election did pass; for the act also distinguishes the rights of the trustee. The 34th section vests all the insolvent’s estate; section 35th provides for bond fide transfers, without notice, prior to the date of the assignment; section 36th gives the right to avoid fraudulent transfers also, prior to the date of the assignment; thus drawing a distinction between the two species of rights. The title to the property fraudulently conveyed is not vested absolutely, but a mere election to avoid the transfers is given. This is to be exercised or not, as may be deemed beneficial to the creditors: 1 Miles, 224; 2 Whart. 245. It is similar, in all respects, to the right in each creditor proceeding to execution: 9 W. & S. 156; 4 Barr, 430 ; per Baldwin, J., in 2 How. 666. The same construction was given to the domestic attachment law, in 4 Bawle, 345; 6 L. Hep. 315-17; 7 T. Rep. 387-92.
    In this case, there is no evidence that the trustee has proceeded to exercise that right and avoid the assignments.

      O. Ingersoll and F. W. Hubbdl, contó,
    argued that no case had yet decided that an assignment of partnership assets alone, would be void where the stipulation was for a release of partnership debts.
    That by the deed of June, all the property did pass, which might be assumed since there was no evidence of any separate assets. The words all their estate are sufficient to pass the private estate, as was held in 2 S. & R. 178; it would be sufficient in the case of a will to prevent an intestacy, and the same effect as to words of description is given in the one case as in the other. Beside, the private estates are in effect partnership assets, being liable equally with other property to the general creditors.
    That the stipulation was a condition subsequent, and hence, if illegal, was void, but the deed stood: Co. Litt. 203 a. [Hibson, C. J. — It is a limitation to such persons as shall perform the condition.]
    As to the insolvent assignee: It does not appear he has not acted, but that is immaterial, he has given security to his eestuis que trust: 4 S. & R. 117. It would be a novelty that his negligence would entitle one cestui que trust to take advantage of that and exclude the others. This matter was settled in Englebert v. Blanjot, where he is expressly declared to have the same rights as an execution-creditor ; that has not in any respect been shaken on this point which alone is the decision, by any subsequent case. It was to avoid the difficulty suggested in that case, as reported in 1 Miles, that the act of 1836 was drawn up in as strong language as possible.

      Dec. 26.

      ct) This case was argued in December Term, 1847.

   Coulter, J.

The fifth error assigned, as to the admission of evidence, is of no moment, and cannot be sustained. The evidence was pertinent, and relative to the issue, and established the very fact on which the case turns.

The other errors assigned to the charge of the court are of the same import. But the court below were right, the only question presented by the case was a question of law, and the court rightfully so instructed the jury.

The plaintiff below was not entitled to recover. Before the institution of the proceeding in attachment, in this case, Phillips & Moss had taken the benefit of the insolvent laws, and transferred their property to trustees for the benefit of their creditors, who had given bond, &c., in pursuance of the statute.

No individual creditor could proceed in this way after such transfer; if he could, the beneficial objects and intent of the law might be defeated and evaded. It belonged exclusively to the trustees in insolvency to contest any alleged fraudulent transfer of property previously made for the benefit of particular or preferred creditors, because the property in such case would vest in them for the purposes of their trust, a fair and just distribution among all the creditors according to law. . See the case of Weber v. Samuel, 7 Barr, 500.

The judgment is affirmed.

       Rogers, J., was at Nisi Prius during tie argument.


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    Philadelphia Saving Fund Society v. Yard.
    Under the act of 1846, investments in mortgages and loans made by a corporation created to receive deposits, on which interest is allowed to the depositors, are taxable for state and comity purposes.
    Certificate from the Nisi Prius.

      Dec. 11. Assumpsit to recover money paid by plaintiff to the collector of taxes under a distress.
    The plaintiff was a corporation created under the act of 1819, the preamble of which declares it was established for the purpose of receiving and investing such small sums as may be saved from the earnings of tradesmen, mechanics, labourers, servants, and others, and of affording to industrious persons the advantages of security and interest. And the 4th article declares, that the money deposited shall bear an interest of four and eight-tenths per cent per annum.
    The assessments which were disputed were those for state and county purposes on mortgages. 2d. Those on loans of corporations, municipal and others.
    The court gave judgment for defendant.

      T. J. Wharton, for plaintiff in error.
    The object of the act of 1844, was the payment of the interest of the public debt, as recited in the preamble (p. 497), nor can the words, “ for county purposes,” be sufficient to extend this law, when the whole machinery is exclusively adapted to the one purpose. By the 32d section there is a clear distinction taken between corporations and individuals, the tax on personal, property of the former, excepting furniture, being laid on the dividends. This is fully recognised by Mi'. J. Kennedy, in 8 W. 291. As tbe county is not permitted to lay the tax on the dividends, and as there is no other mode pointed out for them, it is contended that there was no intent to permit it to lay a tax on the dioses in action of the corporation. Nor is this right extended by any subsequent act. Whether the state tax was lawfully assessed depends on the question of double taxation. If the dividends are taxable, then, of course, the property from the profits of which dividends are paid is not. This was decided in 8 W. 291, under the act of 1831, which is similar to the present act: 10 Mass. Rep. 514; 17 lb. 461; 5 Greenl. 133; 12 Gill. & John. 117. There are no dividends on stock here, it is true, but the whole fund is composed of deposits which draw interest. That interest is directly taxable under the words “ moneys at interest.”

      Kneass, contra.
    If the act of 1844 does not confer the right, that of 1846 (p. 486) certainly does. These deposits have never yet been separately taxed, nor would it be possible to levy them from the class of persons mentioned, whose residences, if within the state, are constantly changing, and whose proportion would be infinitely small. But double taxation is not necessarily improper, as was held in 7 Barr, 161; and as the particular property is designated for taxation by the law, that is sufficient, even though it may be in effect again taxed in other hands.

      Jan. 8.
   Coulter, J.

It is a matter of very little importance whether a corporation identical with the plaintiff in error was formerly subject to taxation by the statute of 1844, or not. The question is, whether it was subject to taxation or not in the year 1847. No argument can be drawn by analogy from statutes previously enacted, to the operative one in this ease, passed the 22d April, 1846. Because the subjects and objects of taxation have been constantly extending and augmenting since the enormous increase of the public debt. And the plighted faith of the commonwealth requires that the last statute should be fairly and honestly enforced in all its length and breadth, in order to meet even the interest on that debt. And the annual message of the governor, delivered within a few days, last past, intimates strongly, that in order to enable the government to meet that interest, the public taxes must be extended and enlarged. What the legislature therefore intended to embrace in the statute of 1831, or of 1844, gives no authoritative or just rulo for interpreting their intent in the act of 1846. Yet it would seem that even in the act of 1844, it was the intent of the legislature to make the items taxed in this case subject both to state and county taxes. What the practice was before the passage of the act of 1846, I do not know. The 33d section of the act of 1844 provides, that the capital stock of all banks, institutions, or companies, chartered by any law of the state, shall be subject to taxation, in the mode therein pointed out. And the previous section provides, that all shares of stock, or weekly deposits in any unincorporated saving .'fund institution, shall be liable to taxation. This institution was incorporated in 1819, and of course its capital stock, which may with propriety be estimated at the amount of its bonds and mortgages, and stocks held in other institutions, was subject to taxation. And here I may say, that the case of the Carlisle Bank, 8 Watts, 291, so much relied on by plaintiff in error, is not in point. And although there are some of the dicta in that case which I apprehend do not meet the entire approbation of this court, yet the exact point ruled, that is, that the word person does not usually include corporations when used in statutes or common parlance, although in its .legal import it embraces them, is well, and of good authority. But the converse is equally true, that when the whole face of the statute evinces an intent to include them, the word person will be sufficient for that purpose. That decision was made'under the act of 1831, which imposed a tax on the shares held in banks, but as to bonds and mortgages on interest, included those held by persons, without anything to indicate an intent to embrace corporations by that word. Such is not the category of the act of 1844, much less of that, of 1846. The horror of double taxation, manifested in that case, is unsuited to the times, for it has obtained and must prevail in the exigencies of the commonwealth; moreover, it is expressly recognised and established by the 6th section of the act of 16th of April, 1845. It exists in the ease of ground-rents, where the land itself, and the reditum issuing from it, are taxed. In the tax upon a mortgage, to the whole value of the land, and the land itself. And so where A. borrows money on mortgage, and loans it to C. on bond, who loans a part of it to D., it is taxed in the current of each actual employment. In the complexity and involutions of business, a dollar is employed many times in a day, and in each actual employment represents the property, business, or the person of him who uses it. And in cases of this kind, it is the usufruct and not the actual or identical money that is taxed. The institution uses the fund or money, and makes profit according to its charter, for the depositors. If 4A per cent, is paid to depositors, the actual profit to the institution, at 6 per cent., would be over and above this amount, about $18,000, and the tax is close upon $11,000, leaving $7,000 for expenses. So that if the object is purely benevolent, and to aid those who wish to accumulate small earnings, the object is attained, without loss to the benevolent institution. But who can tell how much of $1,500,000 employed, is the avails' of small earnings, and how much the property of depositors to considerable amounts? For there usually does mingle in money associations, however praiseworthy and benevolent their object, some spice of selfishness. For many years deposits in any one year might be made by the same individual to the amount of $500; now it is limited to $200 a year. Many institutions of a like nature exist in this state, and the danger is, that large capital may seek immunity from taxation by expedients. But the qxxestion is, does the statute of 1846, by a fair construction, include the elements of wealth, such as those covered by the institution as objects of taxation ? They are $1,493,347 of mortgages, and $48,284 of stocks of other institutions.

The 1st section enacts, among other things, that all property, real or personal, not taxed by existing laws, held, owned, used, or invested by any person, company, or corporation, in trust for the benefit, use, or advantage of other persons, excepting always such property as shall be held in trust for religious purposes, shall be subject to a tax of three mills on the dollar for state pui’poses. These mortgages and stocks are held and invested in trust by the saving fund for the benefit of other persons, and the exception proves the rule: they are not held and invested for religious purposes.

The 2d section, by a fair construction, in connexion with the 19th, and the whole purview, makes the same subjects of taxation enumerated in the 1st section, liable to taxation for county purposes, as in the act of 1844. And the 3d section, having no doubt special regard to the decision in 8 Watts, before mentioned, provides that every person, eveiy fii’m and partnership, and every president, secretary, cashier, or treasurer of every company or corporate body subject to taxation, shall deliver to the assessor of each township, &c., a written or printed statement, showing the aggregate amount of bonds, mortgages, &c., enumerating eveiy species of debts by contracts, agreements, decrees of coui’t, stocks payable in presentí or in futuro, and whether bearing interest or not, and excepting certain things which are not embraced in this case.

There is a laborious intent on the part of the legislature to include every species of interest or personal property of this kind. so as to defy the evasion of legal subtlety, no matter by what name held or invested. And why should it not be so ? The poor and labouring man in the country pays tax for his cow and his cabin, and why not the poor man in the city, who has his capital invested for purposes of increase ? But the great danger, in the mind of the legislature, was that large capital might seek immunity unless the net was wide-spread. The mortgages and evidences of debt, and the stocks held by this company in trust, to make profit thereby, according to its charter, and for the use of other persons, are fairly included in the terms of the act of 1844, but more especially in the statute of 1846, as subjects of taxation both for state and county purposes. The ease of Carlisle Bank v. School Directors, 8 Watts, 289, does not give to corporations a general immunity from taxation for personal property, nor does it inhibit double taxation under existing laws. But whether the deposits in the institution, which yield 4¶% per cent., are in that capacity and by that name subject to taxation, in the hands of depositors or not, I intimate no opinion, because the question is not involved in this case. Nor whether the company must pay the whole tax out of the excess above 4¡% per cent., or take it from the general mass of profits.

If the one million and a half of personal estate employed in this institution in making profit, could be withdrawn from taxation, I know not how much might follow in existing institutions of the same kind, nor how great the temptation which might thereby be held out to multiply them.

Judgment affirmed.


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    Hobson v. Croft.
    Under the plea of payment, it is competent for defendant to show what was the consideration of the note in suit, and that this had been paid since the note was given.
    Where it is objected that evidence is inadmissible under the rules of court for want of notice of special matter, the fact that such notice was not given, should appear on the bill of exceptions.
    In error from the District Court of Philadelphia.

      Dec. 12. Assumpsit on a note for $2,000, dated April 1st, 1841, payable on demand, to the order of H. Hobson, agent. Plea, payment. The defendant gave in evidence, under .a general objection, entries made by plaintiff, who was then in his employ as elerk, in his borrowed and loan-book, showing sums borrowed and. returned, resulting in a balance of $2,000, on the 30th. January, 1841. Also, entries in the cash-book made by plaintiff, showing the balance of the loan was credited by a debit to the account of H. Hobson, agent, on the 30th January, and that interest was calculated thereon down to the date of the note in suit. Also, entries made by plaintiff, and other evidence, showing a payment of this amount.
    The defendant also gave in evidence declarations made by plaintiff, tending to show that the note in suit had been paid; and the plaintiff having given evidence that he acted as agent for his sister, offered to show, by his own receipt to her, that he held funds of hers for investment, at the date of this note, the suit being brought to her use.
    Whether the note was for the same loan mentioned in the books, and had been paid, was left to the jury.

      Rawle, jun., and Rawle,

    argued, that under the rules of the District Court, the evidence was inadmissible, because it went to show payment of a different loan from that admitted in the note, and that it was not competent, under the plea of payment, to go into the question whether there had been but one loan, for that was in effect showing fraud.

      Bouvier and T. Sergeant, contra.
    It does not appear that notice of the special matter was not given. The evidence was simply to show payment of the loan for which the note had been given.

      Jan. 6.
   Bell, J.

The defendant’s plea is payment. It is very certain that under this plea, without notice of special matter, a defendant cannot give evidence of facts which may constitute a special equitable defence. He is confined to proof of matters tending to show actual payment, but he may show such payment in other things than money, accepted in discharge of the original indebtedness: as, for example, by the legal or equitable transfer of dioses in action, though the sums represented by them may have been lost through the negligence of the transferree: Hamilton v. Moore, 4 W. & S. 570. Here the defence was, that the defendant was indebted to the plaintiff in but one sum of $2,000, composed of the loans of September and October, 1840, adjusted on the 30th of January, 1841, and for which he gave the note of April 1st, 1841. This, he asserts, was discharged by other notes, drawn or endorsed by him, as is shown by the entries in his books in the handwriting of the plaintiff; the latter notes having been subsequently paid. If this be so, there was direct payment of the demand sought to be recovered in this action. To establish the facts averred, the several entries in the handwriting of Hartley Hobson, with the promissory notes referred to in the first, second, third, fourth, fifth, and sixth specifications of error, were given in evidence. Now it cannot be denied that these, in connexion with the other proofs in the cause, tended to affirm the defendant’s allegation, and, indeed, satisfied the jury it was founded in fact. It is no objection that the testimony consisted of several distinct and independent items, neither of which, standing alone, established the asserted extent of indebtedness, and its satisfaction. It very often happens that the chain of evidence showing the discharge of a debt is composed of many successive links, but this presents no obstacle to its admission under the plea of payment, if, as a whole, it contributes to establish the truth of the plea. The question in such cases is, has the debt in suit been discharged ? and the affirmative of the proposition may be shown as well by a series of connected transactions as by a single one. It does not follow that a defence constituted of many facts is composed of special matter within the meaning of the rule requiring notice, if these, united, point to the issue tendered by the plea, and directly help to support it. Such was the case in this instance. It was therefore properly received, though it be conceded no special notice was given.

But again: how are we to tell whether such notice was given or not ? The record does not inform us of the ground of the objection taken below to the evidence. If it was because of want of notice, the call for it would appear of record. If this was not the reason, of course no proof of notice need be introduced, and, consequently, the record is silent On the subject. The proper course is to call for the notice at the trial, and if it be not produced or service of it shown, to object to the offered proof for that reason. If this be not done it is too late to assume such ground of objection in this court, for here the opposing party has no opportunity to show how the fact was: Hawk v. Greddis, 16 S. & R. 28.

On the trial, the parties seem to have deemed it of importance to show to whom the money loaned to the defendant actually belonged, and, consequently, who was the real owner of the note in suit. Whether the letter of March 2d, 1842, referred to in the seventh specification, was given in evidence for this purpose, does not appear on the record. If so, perhaps it was impertinent. But we cannot say it was relevant for no purpose. It refers to a settlement made in May, 1841, of which some evidence had before been given from the defendant’s books, and speaks of one of the notes averred by the latter to have been given and received in payment. It, therefore, has some connexion with the transactions on which the defence rested, and tended, at least in some slight degree, to verify them. This was enough to justify its reception.

The judge below properly told the jury it was wholly immaterial whether the note in suit was the property of Eliza Hobson or Hartley Hobson, from which it follows the evidence mentioned in the ninth and tenth specifications was rightly rejected. It was entirely irrelevant to the only issue trying. Besides, the receipt of January 1st was of the plaintiff ’s own making, and it was offered without explanatory proof.

The records spoken of in the ninth assignment were not introduced to show payment. They were rightly received in connexion with, and as explanatory and corroborative of the conversations detailed by the witness Eloyd, in which they were referred to.

Judgment affirmed.


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    Carman v. Noble.
    Where a promise is made to indemnify a surety of an assignee for creditors, after the execution of the bond, there is a sufficient consideration arising from the power such surety possess under the act of Assembly to compel the assignee to give additional security, or be removed.
    So where the parties making such promise have received the funds of the assigned estate: and it is immaterial, that before the promise, one of the promisors had repaid his proportion of the funds so received to the assignee.
    An indemnity against debt or damage is broken by a recovery of a judgment against the party indemnified.
    Such judgment on an assignee’s bond will be evidence against the party indemnifying although irregular for want of a cautionary judgment, required by the act of 1836, and in the declaration the breach was laid generally, and the bond was executed after the act of 1836, pursuant to, and reciting the act of 1828, &c.
    Where the verdict in such an action was for plaintiff, for damages, the court below, or in error, can enter the proper judgment for the commonwealth for the penalty, and for the party suing, for the damages assessed.
    Notice to two of three joint promisors, of the commencement of a suit against which they had indemnified defendant, is notice to all, and will render a judgment recovered therein conclusive on all.
    The record of proceedings against the assignee for creditors, is admissible in evidence against parties agreeing to indemnify the surety for such assignee.
    Where a surety who has not paid the debt due by him for his principal, recovers against parties who have undertaken to indemnify Mm, the court will take care that the money paid on such judgment shall he applied to the creditor of the surety, if application for that purpose he made to them.
    In an action hy a surety to recover on an agreement to indemnify him, it is immaterial to show that satisfaction could he had from the principal, where there has been a recovery against Ms surety.
    Certificate from tbe Nisi Prius.

      Dec. 12, 13.
    This was an action by Carman against Noble et al., on tbeir agreement to save plaintiff harmless from debt or damage as surety for Fox, to recover tbe amount of a liability incurred by plaintiff as surety for said Fox, one of tbe defendants, who was assignee of Anguera & Curren, for tbeir creditors.
    In tbe first count tbe consideration averred was, that plaintiff would forbear applying to tbe court to compel Fox to give further security or be removed from office.
    In tbe second, the consideration laid was, that tbe funds of tbe assigned estate bad been deposited in tbe bands of the defendants, and a benefit and profit bad arisen therefrom, for which defendants made tbe promise to indemnify plaintiff, who, relying thereon, did not secure himself as be might have done.
    Tbe third laid a promise prior to tbe execution of tbe assignee’s bond.
    Tbe fourth laid tbe consideration to be tbe consent of plaintiff, that defendants might retain tbe moneys belonging to tbe assigned estate in tbeir hands.
    These counts further averred that an action on tbe bond bad been brought to tbe use of tbe United States, and judgment recovered for $15,189.
    Tbe fifth was for money bad and received. Pleas, non assumpsit and payment.
    It appeared in evidence that tbe assignment was made June 23, 1837, and tbe bond given July 10th, plaintiff and another being sureties.
    In March, 1841, tbe accounts of Fox, tbe assignee, having been referred to an auditor, there was reported as due to tbe United States by him, $13,271.16.
    Tbe ledger account of defendants, opened with Fox as assignee, showed a balance due him, in 1838, of $11,911.03. No later account was on tbe record.
    On the 13th January, 1843, tbe three defendants signed tbe following instrument: “We, tbe undersigned, partners of tbe late firm of Orrick, Noble & Fox, do agree to keep William Carman harmless from debt or damage in the matter of the security entered into for W. L. Fox, as assignee,” &c.
    In March, 1844, there was an application on behalf of the United States for an attachment against Fox, to compel payment of the amount reported in his hands. To this Fox answered, denying his ability to pay the debt, and no further action was taken.
    An action was then brought on the bond against the present plaintiff, in the name of the commonwealth, to the use of the United States, which was tried, and a verdict and judgment had for $15,139.31.
    Notice to’ Fox and Orrick, two of the defendants, of the pendency of the action on the bond, was proved, and the court directed a verdict for the plaintiff in the present case.
    The exceptions to evidence were : 1. The admission of the record of the Common Pleas, which contained the assignee’s bond, and the proceedings thereon. 2. The admission of the record of the action on the bond, to the use of the United States. The bond given by plaintiff as surety for Fox,, recited the act of 1828, and was conditioned that Fox had and would comply, in all things, with the provisions of the act, entitled “ An act to compel assignees to settle their accounts,” and the supplements thereto, and faithfully execute the trust confided to him, though at the time the bond was given the act of 1836 was in force. The breach assigned was, that a large sum of money had come to the hands of Fox, as assignee, and still remained unpaid.
    3. The court rejected evidence to show that after the dissolution of the firm, and before the agreement on which suit was brought, Noble had paid Fox his proportion of the money belonging to the assigned estate, which had been deposited with the firm.
    4. They also rejected evidence of an express agreement by plaintiff to notify Noble when suit was brought on the bond, that he might defend. 5. Also, that Fox, the assignee, had property wherewith the claim of the United States- might be satisfied.

      Fallon and Meredith, for plaintiff in error.
    There was no evidence to support any of the counts but the second. It is said the fact that the funds were deposited with the firm, was sufficient; but our rejected evidence assumes Noble had paid this to Fox before the agreement to indemnify was made. And this was made under an express agreement, also conceded by the rejected evidence, that notice should be given of suit brought. In Carroll v. Nixon, 4 W. & S. 517, there was sufficient evidence of a previous promise, the indemnity being given a few days after the bond; here, several years had elapsed. This was at all events for the jury.
    But is it sufficient to show a mere recovery, without payment ? Where the indemnity is against liability, it suffices; but where, as here, it is against debt or damage, then there must be payment: 6 Hill, 324; 11 S. & R. 109; 5 W. & S. 440; 7 Johns. 358; 4 Mass. Rep. 627; 1W. C. C. 278.
    At all events, a final judgment must be shown; here there were no such judgments as are required by the act of 1836, but a single judgment, which must be taken to be a cautionary one. The breach assigned was general, and does not show that the recovery was for the particular plaintiff: hence, any other creditor may come in and assign breaches in future.
    The surety was not liable until it was shown that Fox, the principal, was insolvent: 1W. 437; and we offered to show he was able to pay.
    The bond not being according to the act of 1836, no recovery could have been had.

      Watts, contra,.
    Under the act, Carman could have secured himself by compelling additional security to be given; and this is a sufficient continuing consideration, as was expressly decided in Carroll v. Nixon. The evidence offered was of a payment by Noble of his apportioned share of the money received by the firm, but his joint liability was not thereby discharged. ■
    The indemnity here was against debt or damage; surely a debt exists where a judgment has been recovered. In Leber v. Kauffelt, cited by plaintiff, an indemnity against claims was held to be broken when a legal claim was presented.
    The bond was by accident taken according to the form adopted under the act of 1828, but no greater burden was imposed on the surety than is required by the act of 1836: hence, the variance is immaterial. The judgment was in accordance with the act; but if-it' should have been entered for the penalty in the first instance, this court can remedy that formal defect.
    There is no objection for want of notice, even were the defendant entitled to it; for notice to his joint obligor is notice to him: 1 Wend. 50.
   Coulter, J.

The agreement on which the action is founded, stipulated that the defendants below would keep the plaintiff, Car-man, harmless from “debt or damage, in the matter of security that the said William Carman entered into for Wm. L. Eox, as assignee,” &c.

One of the errors assigned is, that the agreement is not supported by a sufficient consideration; and it would seem the most convenient in order to notice this first, although it is not the first in the series. This objection proceeds on the ground that the agreement is gratuitous, and all on one side. In the Roman law, a contract merely gratuitous, in which the promisor was not bound to anything, was called nudum pactum; and the distinction was adopted in the common law of England, and thus composes a rule in our jurisprudence. The party making the promise must have obtained some advantage, or the party to whom it is made must °have suffered some loss, or sustained some injury and inconvenience, in consequence of the promise. By this rule, which appears to be sound, I will test the promise in this case. In Doctor and Student, Diag. 2, ch. 24, it is observed that “ these are called naked promises, because there is nothing assigned why they should be made.” Here the reason for making the promise is assigned in the writing, to wit, that Carman had entered into bond as the surety of Eox. Was that sufficient ? Signing the bond was, to be . sure, a bygone act, but it was continuing, as a consideration; no damage or loss had yet accrued to the surety. It was to indemnify him from debt or damage that might thereafter accrue to him, that the instrument upon which the suit is brought was given. All parties looked to a future contingency, and that future liability was the consideration of the promise. And that contingency, so far as it was disastrous to Carman, he might have averted, perhaps, if he had not been lulled into security by the act of the defendants, and seduced thereby into supineness; for he might have made application, under the statute, to compel additional surety. Can it be pretended, then, that he suffered no inconvenience, and encountered no danger, in consequence of the promise of the defendants ? Carman undoubtedly became the surety of Eox, originally at the request of Eox; the law will imply that much. And Eox would be legally bound to indemnify him if he suffered loss thereby. It cannot be pretended, therefore, that there was no consideration as to him. Thus it has been ruled, that if the plaintiff has become security for the promisor, or has accepted bills, or imposed upon himself any legal liability at the request of the promisor, there is a sufficient consideration to support a promise of indemnity, and render it binding in law, although no actual benefit or advantage has resulted to the promisor: Baily v. Croft, 4 Taunt. 611. Yery slight circumstances will, in such cases, establish a request in point of law: Law v. Wilkin, 6 Ad. & E. 718. A bygone act or service rendered, pursuant to a previous request of the promisor, is sufficient to sustain an action on the promise: Dyer, 272 b, n. These cases go on the ground stated in Doctor and Student, because they show a sufficient ground on which the promise was made; which is therefore not naked. In accordance with these principles, is the case of Carroll v. Nixon, 4 W. & S. 517, and Hinds v. Holdship, 2 Watts, 104; and also Greeves v. McAllister, 2 Binn. 591; and also the case of Lonsdale v. Brown, 4 Wash. C. C. Rep. 148; where it was ruled, that a promise to pay on a consideration executed, if it was induced by some previous duty, or if the debt be continuing at the time, is good to maintain assumpsit. That a duty rested upon Fox to indemnify Carman as his surety, cannot be doubted; and the other defendants, by joining with him in the contract to keep Carman harmless, made themselves jointly liable with him for a consideration moving from Fox and to him, and thus became his sureties. It may be observed as ancillary, that all the defendants were partners, and that the funds which Fox received as assignee, were placed by him in possession of the firm, instead of applying them according to law. And that, in consequence, Carman might have made application to the Court of Common Pleas, to remove the assignee, or compel him to give additional security. There was, therefore, an actual benefit accruing to the defendants, however small, and the magnitude of the benefit is of no importance. We are of opinion that the agreement was supported by a sufficient consideration.

The next in importance in the series of errors, is that which alleges that the judgment recovered against Carman on the surety-bond was not the measure of damages in this action, because Car-man had suffered no loss except the payment of the attorney fee of |100.

But that is of no consequence. It was not necessary for him to wait until the judgment was recovered off him, nor until he had paid the money. He stood in jeopardy; and that judgment, with .the costs, he could be compelled to pay by legal process. The condition of a bond of indemnity against all claims of A. is broken whenever the claim is made, and the obligor is compellable by law to pay. He is not bound to wait till an action is brought against him: Leber v. Kauffelt, 5 W. & S. 440. And more exactly in point is Stroh v. Kimmel, 8 W. 157; where it was ruled, that where a promise of general indemnity is made, and judgment is recovered against the promisee, such judgment is evidence in a suit against the promisor, without proof of payment of the judgment. Closely allied to this assignment, is that which imputes error to the court for admitting the record of the judgment in evidence, because, as alleged, the judgment was void, and because it was not between the same parties nor privies. The judgment, however, was not void, but valid and subsisting, and capable of being enforced by execution. The court could regard it in no other light whatever. Even admitting that it was irregular, yet the court could not reverse or impugn it in a collateral suit. It was a judgment in fact and in law. There was not a formal or technical judgment in favour of the Commonwealth, for the amount of the bond; nor was the finding in money denominated damages.

But the old maxim, that what can be made certain, shall be considered as certain, will solve the difficulty. The bond is for $27,100 penalty; and the statute provides that the cautionary judgment for the Commonwealth shall be for the amount of the bond, and that the judgment in favour of the plaintiff, as the statute denominates the cestui que %ise, shall be for the amount of the damages he shall establish. Now, the judgment is not for the amount of the bond. But it is for the amount of debt due to the United States,'with the interest. The sum named, therefore, must have been damages for the breach of the condition, in favour of the plaintiff, for whose use one of the plaintiffs, that is, the commonwealth, sued.

According to the terms of the statute, there ought, in such cases, to be two judgments — one for the amount of the penalty of the bond, which would be cautionary, and the other for the plaintiff, as the cestui que use is denominated in the statute, for the amount of damages he should prove.

The verdict in this case is for the plaintiffs $15,000, thus recognising two plaintiffs, which is the fact as it exists, because the statute requires two judgments. The court then ought to have moulded the judgment so as to conform to the verdict, and rendered judgment for the commonwealth for $27,100 debt, and for the plaintiff for $15,000 damages. If the defendant in the original judgment on the bond had sued out a writ of error, this court would have so modified and moulded the judgment. And why not now consider that to have been done in entering the judgment in the court below, which ought to have been done ? The verdict was substantially a finding for the commonwealth for the penalty $27,100, and for the cestui que use for his damages. Although the verdict be not in the words of the statute, jet if the point in controversy can be resolved out of it, the court shall work it into form and make it serve the justice of'the case: Easton v. Worthington, 5 S. & R. 130. The English practice will illustrate the case. At the trial, the jury must find a verdict for the plaintiff with 15s. damages and 40s. costs, and also assess the damages for the breaches; and then, on the return of the postea, judgment is entered for the debt, which is the penalty, and Is. damages, the latter being merely nominal: 1 Saund. 58, n. 1. The verdict was substantial, in accordance with the requisites of the statute, and easily susceptible of being moulded according to the justice of the case. There was no error in admitting it in evidence.

The defendants were privies to that judgment, because they had promised and agreed to save Carman harmless, on account of his signing the bond on which it was founded. And Fox had notice of the proceeding, for he was sued in' a separate action on the same bond, being the principal obligor, to the same term, the suits being both instituted on the same day; and Orrick had notice, for he employed counsel to defend; and Noble had implied notice, for the engagement to indemnify was by the firm of Orrick, Noble & Fox.

The record in the Court of Common Pleas, in the matter of Anguera & Curren, together with a copy of the bond, and the answer of William L. Fox, upon oath, which composed part of the record, were properly admitted in evidence. They were part of the res gestee, and explained and elucidated the occasion of giving the bond, the appointment of Fox as trustee, and were germain and pertinent to the cause in hand.

The learned judge before whom the cause was tried, instructed the jury that their verdict ought to be for the plaintiff, but did not thereby overstep the prerogative of the court or impinge upon the rights of the jury. There was no fact disputed, or about which there was conflicting testimony. When the cause had reached that point, it presented only a sheer question of law. And from the aspect of the paper-book, I should be inclined to believe that the counsel for the plaintiff in error so considered the matter. I do not perceive how the court could have instructed otherwise than did.

Several other errors are assigned which were not pressed, but abandoned. The court is of opinion that they are not of weight sufficient to disturb the verdict and judgment.

The same counsel who conducted the suit for the United States, are concerned in prosecuting this suit, and it may be fairly presumed that this suit is carried on for the benefit of the United States. But if Noble or Fox have any misgiving that the money will not he so applied, upon the proper application to this court it will take care that it shall be so applied.

Judgment affirmed.