source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    RICHARD JOHNSTON against HENRY BRACKBILL.
    IN ERROR.
    Where the issue joined was on the plea of a submission and an award, and the submission was general “of and concerning the differences depending between” the parties; an award setting forth that the arbitrators had examined their several books of account, and taken into consideration a judgment bond to the plaintiff from the defendant, and finding a particular sum due to the former on that bond-, without determining how much, or whether any thing was due on the other subjects of difference submitted to, or examined by them, is not final, and therefore it is bad.
    Where issue is joined on this film, evidence of mistake and inadvertance in the ai’bitrators in making the award is inadmissible. But where such evidence is received under this plea, and the award is a nullity, the court will not reverse for the admission of such evidence.
    Where it appears, by a calculation, that the jury did not allow credits, of which incompetent evidence was given; the judgment will not be re- • versed on a bill of exception to such evidence.
    Upon a writ of error to the Common Pleas of Lancaster county, the case was thus:

      Henry Brackbill, to April term, 1817, issued a scire facias to revive a judgment which he had obtained against Richard Johnston, the plaintiff in error, to January term, 1812.
    On the 24th December, 1824, the defendant Johnston, put in this plea; “payment, under which he intends to give in evidence the award of referees, mutually chosen by the parties, by which all mattersin this suit were settled;” the plaintiff replied, “ non solvit,” and issue was joined thereon.
    And now, August 23d, 1825, the cause being reached, and before the jury were called, the defendant offered to add the plea of a submission of the cause of action, in this casé, to arbitrators, and an award made in pursuance thereof; which the plaintiff objected to, and prayed the court to direct the plea so offered to be drawn up in form, which is accordingly done, and the counsel for the defendant moves that the same be added, which motion was objected to, and on argument allowed.
    The defendant then pleaded that the plaintiff and defendant on the 22d day of March, 1821, submitted themselves, under the penalty of two thousand dollars each, to stand to the award of David Witmer, John Hamilton, and George Hoffman, “ of and concerning the differences then in controversy between them,”, and that the said arbitrators, on the 30th April, 1821, awarded, “of and concerning the premises,” a balance of one thousand three hundred and eighteen dollars and four cents, from the said Richard
      to the said Henry, “lobe due upon the judgment bond which the said Richard had given to the said Henry;” and the defendant averred that the bond on which the original judgment was entered was the same bond, and that he had been, and still is, willing to stand to and abide the said award. To this plea the plaintiff replied that said arbitrators “ did not make any such award of and concerning the said premises, in manner and form as the said Richard had in his plea alleged.” These pleadings were formally drawn out and entered.
    The cause being at issue, and the jury sworn, the plaintiffs having shown the original judgment rested; the defendant then gave in evidence the submission and award set forth in his plea.
    The submission was in these words:
    “ Whereas, differences have arisen between Henry Brackbill and Richard Johnston, which are this day referred amicably by us unto David Witmer, John Hamilton, and George Hoffman, we the said parties do hereby bind ourselves, our heirs, executors and administrators, each unto the other, his heirs, executors and administrators or assigns, in the penal sum of two thousand dollars, lawful money of the United States, that we will stand to the award, or settlement that the said arbitrators shall make out under their hands.”
    The award was as follows:
    “ We the undersigned arbitrators amicably appointed by Henry Brackbill and Richard Johnston, to settle all matters in variance between the said parties do report, that after hearing the parties, examining their several book accounts, and also takingia judgment bond from said Johnston to Brackbill into consideration, we find a balance of thirteen hundred and eighteen dollars and four cents due from Johnston to Brackbill, on said bond.”

      The defendant having given this submission and award in evidence, the plaintiff offered to prove, that on the 1st June, 1815, he entered as surety of Richard Johnston the defendant, into a certain bond with him, to John Neff, for the payment of one hundred and twenty dollars with interest. And also, on the same day that he entered into another bond to John Neff, with the said Johnston, ■ as surety for said Richard, for the payment of a like sum, which said sums, with their interest, he the plaintiff had to pay, and did pay to the said Neff, in discharge of the said bonds, on the default of payment by thejjsaid Richard, before the said submission and award: and that although it was admitted, by the said Richard, before the said referees, that said Henry had paid the said moneys for him, by inadvertence and mistake, the said sums were not credited to the said Henry in the said award; which was not known to him till after the said award was made: which testimony was objected to by the defendant, and received by the court, and a bill of exceptions sealed.

      The defendant’s counsel requested the court to charge the jury, that the submission and award were a bar to the recovery of ■the plaintiff in the present action.”
    The court charged the jury, that the defendant had given no .other evidence of payment' than that which was proved by this .award, and to the amount of the sum credited by the referees the .defendant was entitled to a credit.
    “ But the plaintiff has proved that he as surety of Richard Johnston, joined with him in two bonds to John Neff, each for the .sum of one hundred and twenty dollars, the amount of which two bonds he, Henry Brackbill settled with Neff; and it was offered to he proved that it was admitted by the said Richard before the referees, that Brackbill had paid the said monies for him, and that ,hy inadvertence and mistake, the said sums were not credited to Brackbill in the award, which was not known to him till after the .award was made. The question of fact for you to determine is— has this matter been proved? If it has been clearly made out, you . .will make the allowance claimed, but if it should appear to you, that Brackbill had an opportunity of proving the fact of these payments before these referees, and neglected it — if it does not clearly appear to you that the payment rvas expressly admitted by Johnston — and if it does not appear that ¡there was a mistake, or inadvertence on the part of the referees; and'that the award was .made on the ground of want of proof of payment of these bonds; .then Brackbill is bound by ft, and .he cannot have from you the .allowance he claims in this action.”
    The court also charged the jury that the submission and an .award were no bar to the plaintiff’s recovery in the present ¡action. Upon this charge the court sealed a bill of exceptions.
    The jury found for the plaintiff one thousand six hundred and fifty-nine dollars and forty cents. By a calculation now made, this was ascertained to be the amount of the aw.ard with interest.
    The plaintiff in error assigned for error.
    •1st. The admission of the evidence contained in the first bill of exceptions.
    2d. That the court below should have answered the point submitted to them by the counsel of the plaintiff in error, in his favour.
    3d. That the .court erred in instructing the jury, that if the facts were .clearly .proved, they should make the allowance claimed in consequence of .the alleged mistake of the arbitrators -in not crediting the amount of the two bonds paid by Brackbill to Neff, in which he was surety for Johnston.

      Porter for the plaintiff in error,
    contended that the issue was on fhe plea of mil tiel record, and the evidence offered and received, was to prove a mistake in making it, and a plain departure from the issue. 1 Saunders, 327, note, 1. 2 Saunders, 84, b. SfC. Kidd on awards, 381. Fisher v. Pascal, 3 Yeates, 564.
    On the plea oí non assumpsit, to an action founded on the award of arbitra tors, without notice of special matter, the defendant cannot give mistake of the arbitrators in eyidence. Taylor v. Coryell, 12 Serg. Sf Rawle, 243.
    Second error. The award is a bar to the plaintiff and his only remedy is upon the agreement of submission. 1 Phil. Ev. £305,] £242,] Kidd on awards, 381.
    Third error. The award is conclusive upon the parties. 1 Phil. Ev. [73,] 305, 306. Underhill v. Van Courtland, 2 John. Ch. Rep. ,339. Todd v. Barlow, 3 John, Rep. 367. To avoid it, there must be either fraud in the party, or misconduct in the arbitrators, which must be specially pleaded, or a notice of it given under a general plea. Davis v. IJavard, 15 Se?g, Sf Rawle, 165, Taylor v. Coryell, 12 Serg. Sf Rawle, 243,

      Jenkins and Hopkins for the defendants in error.
    The verdict by calculation is ascertained to be the amount of the award with interest. This the plaintiff in .error admits to be due, and why therefore reverse the judgment. The admission of the evidence then is without prejudice to the plaintiffin error, and if there were error in it, this court will not reverse for an error which has done the party alleging it, no injury, Collins v. Rush, 7 Serg. Rawle, 147. Allen v. Rostain, 11 Serg. Sf Rawle, 372 — 3. Campbell v. Calhoun, 1 Penn. Rep. 140, and the court will look through the whole record to ascertain if any injury has resulted to the party from such error.
    The plea was improperly received, and therefore cannot effect the argument. The award was made in 1821, and the plea not put in until 1825, on the trial, and against the consent of the plaintiff The plea was a plea puis darien continuance, and ought not to have been received out of time.
    It is here a plea without merits, and besides being out of time, it could not be put in without the payment of all costs up to the time it is put in; for it admits that all was right on the part of the plaintiff up to that time, Hostetler v. Kaufman, 11 Serg. Sf Rawle, 146.
    But the lien of the plaintiff’s judgment, and the judgment itself •could not be destroyed by the award, without going farther, and proving satisfaction.
    The award was no bar for two reasons. First. Because it was •made on a plain mistake. Second. It was not an award in this action.
    At law an award is conclusive, but in equity it is open to show fraud or mistake. We .could not give notice of our ground of resistance of the award for it was not pleaded until the trial; and besides, such notice is required from the defendant, and never from the Plaintiff
    is no award in this action; the submission does not state any action. It referred to “differences which had arisen;” but this judgment was not a difference. It had been ascertained at law, and the payments upon it were but a reduction of that sum.
    The award, they contended, was not in this collateral way a legal defence, it was a mere equitable defence, of which the defendant had the full benefit.

      Buchanan, for the plaintiff in error, in reply.
    The question is not whether thirteen hundred dollars are due to the plaintiff or not, but whether after a party has submitted his cause of action to arbitrators, he -can, when an award has been made on the submission, proceed on the original cause of action. He denied that the plaintiff had an election to proceed on the judgment, or on the submission. His remedy is alone on the submission, and the award is the evidence of the extent of his claim; and a court of equity would enjoin him from proceeding'on a judgment, if that was his cause of action, or if he brought suit on the original cause of action, he would be barred, upon the plea of the award; as that cause of action is wholly extinguished by the award.
    The plea was properly put in, although that is not an open question here. It is not a plea puis dañen continuance, but a plea to the further maintenance of the action. The latter is put in where ^something has occurred after suit brought, but before issue joined, upon which the defendant wishes to rely; the former on something occurring after issue joined. The first plea put in by the defendant, was a plea of payment, with a notice of his reliance upon the award, and the plea put in on the trial was putting into form, that which had been before informally pleaded.
    The evidence received was clearly inadmissable. The issue joined was award or no. award; and under this issue it was manifestly incompetent to' prove that the award was made by mistake. If the award were made by mistake this may be shown, but it must he specially pleaded.
    But it is said that no injury was done by this evidence, and to prove this, what is called arithmetical progression is resorted to, to show that the amount of the verdict consists with the evidence, independent of this testimony. It is not denied that the court will not reverse for error, where it is plain no injury was done.
    But adopt the principle that you may go into the jury box, and by calculation ascertain upon what they decided, and you are at once at sea without a compass: and the sacred rules of the common Jaw will be lost in a maze of conjecture, as to what influenced the decision of the jury.
   The opinion of the court was delivered by

Gibson, C. J.

The plaintiff having joined issue on the plea of a submission and an award, will fail if the award shown be valid. The defendant relies on strict rules of pleading, without regard to the obvious justice of the case, and is therefore to be held to strict rules of law. The submission was general, “ of and concerning the differences then depending between them;” not of all matters in controversy between'them in this, or any other action. The award sets forth, that after hearing the parties, examining their several books of account, and taking into consideration a judgment bond to the plaintiff from the defendant, the arbitrators find a particular sum due to the former on that bond, without determining how much, or whether any .thing were due on the other subjects of difference submitted to, or examined by them. We may conjecture with a probable degree of certainty, that the sum awarded is the general balance; but that is not a necessary or even a natural conclusion. Else why refer it to this particular item of charge? The submission was not of the particular bond, but of the differences between the parties, and it seems from the introduction of their books of account, they had several. Now there is no severer rule than, that an award must be not only conveniently certain and mutual, but so final as to terminate all the differences submitted. I admit that this rule is relaxed here in some respects; but vve must remember that we are here on rules of pleading, which require greater certainty than is necessary by our ordinary practice.' Had the arbitrators awarded a general balance, we would be bound to suppose they had determined all the difference in controversy, and their award would have been mutual, final, and reasonably certain. But they have eluded this conclusion by specially awarding the balance of a particular item, without saying any thing of the rest: so that being bad in this respect they have made no award at all. It may be alleged that the defect, if any, appears on the face of the plea, and that the plaintiff ought therefore to have demurred. ‘But it does not appear by the award pleaded, that more than one subject of difference was laid before the arbitrators, so that it would be impossible to say all had not been decided; while by the award given in evidence, it appears there were several. The evidence therefore, did not support the plea.

The award having been given in evidence, the plaintiff was allowed to prove that certain credits to which he supposed himself entitled, had been omitted by an oversight; and the court charged that an error by mere inadvertence of the arbitrators might still be corrected. Had the award been conclusive, there would have Been error in the admission of the evidence, and the direction conse-quent on it. But it is- not easy to see how a vicious award should have a controlling influence on the evidence under the plea of payment. But, putting that matter aside, it appears from the verdict itself, which is exactly for the sum awarded, with the intervening interest, that those credits were in fact rejected.- It is said we' cannot follow incompetent evidence, or a misdirection into the jury box to ascertain its operation. The law is clearly otherwise. In Preston v. Harvey, 2 Hen. & Murf. 55, and Wolverton v. The Commonwealth, 7 Serg. & Rawle, 273, an error in the admission of in-competent evidence was held to be cured by conclusive proof of the fact, on the ground that the previous evidence could not have had an influence on the verdict. So in Faulcon v. Harris, 2 Hen. & Murf. 550, the admission of incompetent evidence which appeared by the verdict to have been inoperative, was held to be immaterial. And in Campbell’s Executors v. Colhoun’s Administrators, 1 Penn. Rep. 140, it was held that a misdirection in point of law might be cured by a finding on a distinct ground of fact to which the rule laid down was inapplicable. The principle stated by the chief justice, in Allen v. Rostain, 11 Serg. & Rawle, 374, is founded in justice as well as authority. Our business is not -with abstract principles, but injuries from the application of them. As therefore the error of the court in attempting to supply omissions in the award, did not vary the result, the judgment is unimpeachable.

Judgment affirmed.


author: Gibsos, C. J.

text:
    JAMES JOHNSON, against MARY MATSON.
    IK ERROR.'
    Where under proceedings in partition in the Orphans’ Court to divide the lands of S. the same was appraised and taken by M. who had married one of the children of S. and who acknowledged recognizances to the other children for.their shares.’ The wife of M. can claim nothing against her husband or a purchaser of his estate,- but the undivided share which descended to .her, and which remains specifically in land, after all' the purposes of distribution have been answered.
    This was an ejectment brought in the District Court of York county, by the defendant in error, to recover from James Johnson, one hundred and ninety-six acres of land. The facts were as fob lows: James Sinclair, the father of Mary Matson,, died in 1807, seized in fee of two tracts ofland, one of one hundred and ninety-three acres; the other the land in dispute. He left seven children, (of whom the plaintiff is one,) and the children of a deceased child.In 1811, application was made to the Orphans’ Court to divide these two tracts, amongst the children of Sinclair, agreeably to the intestate laws, and in pursuance thereof the tract of one hundred and ninety-three acres, was valued at three thousand two hundred dollars, and was decreed by the said court to the eldest son; who gave security to the other heirs for their distributive shares. The tract of one hundred and ninety-six acres, the land in .dispute, was valued at one thousand one hundred and twenty-seven dollars, and was decreed to Adley Matson, who had intermarried with the plaintiff, he entering into a recognizance to secure to each heir one hundredandfortv dollars and fifty cents, the sum they were severally entitled to. In 1813, Shenherger obtained judgment against Adley Matson, on which the land decreed to him was sold by the sheriff to the defendant Johnson, for four hundred and fifty dollars, and a deed acknowledged January, 1816. At the time of the sale Johnson, the purchaser, held three judgments against Matson, amounting to six hundred and fifty dollars. Matson died in December, 1826. The court charged that the plaintiff was entitled to recover the -whole, tract and recommended a verdict accordingly.
    Verdict and judgment for the plaintiff'

      Lewis and Barniiz, for plain tiff in error.
    The Orphans’ Court had no power to concentrate the interest of the wife, but that interest remained in the land unaffected by the decree of the Orphans’ Court vesting the estate, of her father in her husband under the intestate law. The estate in one tract was decreed to him by the court, and it is only as to one-eighth part, (her proportion,) they take by descent, but of the other seven-eighths the husband was the purchaser when he entered into a recognizance to secure the shares of the other children. As to her interest in the other tract, that by the decree of the Orphans’ Court was converted into personalty. All these facts being set forth in the records of the court, through which the title to the land sold was made, the plaintiff in error who was the purchaser, was necessarily cognizant of them. The court below gave judgment against the defendant for the whole of the land purchased, which was more than the wife would be entitled to, out of all the real estate of her father, the larger portion of which had been converted into personalty, and the right thereto clearly vested in the husband. Kean v. Ridgeway, 16 Serg. Sf Rawle, 60. Sloolfoos v. Jenkins, 8 Serg. Sf Rawle, 175. Smith v. Scudder, 11 Serg. Sf Rawle, 325.

      Evans, contra.

      Mary Matson, the plaintiff, claimed the whole tract, on the ground that her husband took in her right. The paying or securing to be paid, the shares of the other children, could not entitle him to the fee simple of the estate, fie was a trustee for the wife in whom the fee simple vested, and his interest was but a life estate. If then he be received as .a trustee to take the estate in trust for his wife, he would be a trustee to bind the same in fee simple by a recognizance in favour of the other heirs. That in this case Adley Matson took in right of his wife, and as it appeared of record, Johnson the purchaser at sheriff’s sale had notice of it. Blocker v. Carmonyf 1 Serg. Sf Rawle, 460. Foglesonger v. Somerville, 6 Serg. Sf Rawle, 167. Stoolfoos v. Jenkins, 8 Serg. Sf Rawle, 175.
   The opinion of the court was delivered by

Gibsos, C. J.

The principles of this case have been already settled on térms so explicit as to occasion surprise at finding them misapprehended in the court below. A wife can claim nothing against her husband or a purchaser of his- estate, but the undivided share ‘ which descended to her, and which remains specifically in land* after all the purposes of distribution have been answered. Here she was permitted to recover all the land that was accepted by her' husband at the valuation, because, at it was said, he had paid nothing for it, and was entitled to nothing more than his courtesy initiate, which determined at his death. But he acknowledged recognizances to the other children, which, if not paid may yet be recovered of his estate or of the land in the hands of the defendant. Even should their interest not be divested, what right can that give' the plaintiff to any thing beyond her own share? In Kean v. Ridgeway, 16 Serg. & Rawle, 60, it was held that her portion of the whole estate is not concentrated in a particular part accepted by the husband; and there is no reason why it should be thus concentrated, where her whole portion has not been taken specifically in land. The doubt sometimes expressed of the principle of Yoye v. Barnit, seems to meto be without due consideration. Why should the price of a wife’s land be exempt from her husband’s marital rights, where transmutation has been the necessary consequence of a process of distribution'( Equity insists on a provision for the wife, not in consequence of any imperfection in the husband’s title to her personal estate, but as the price of its interposition in his favour. But where, as in the case of a recognizance to the wife, her money may be reached by an action at law, no chancellor would pretend that he is not hoth in equity and at law, the absolute owner of it; eyid to treat it as land, or follow it into land purchased wdth it, for the purpose of establishing a resulting trust in favour of the wife, would introduce an equity hitherto unknown to the English or the American courts, But even were there room to doubt the propriety of that decision on the ground of any admitted principle of equity, it has since entered into such a countless number of estates as a rule of property, as to render the mischief that would be produced by disturbing it now, incalculable. In the case at bar therefore, the plaintiff is entitled to recover only her purpart in the part taken by her husband, as it descended to her.

Judgment reversed, and a. venire de novo awarded


author: Smith, J.

text:
    SUSANNAH RICHWINE against WILLIAM HEIM.
    IN ERROR,
    An assignment hy a husband, under the insolvent laws, of his wife’s choses in action, defeats her right of survivorship, in case he dies before they are reduced into possession.
    This case came before the court on a writ of error to. the District court of York county, where judgment had been rendered for the defendant in error, on the following facts:
    The father of the plaintiff by his will, proved in 1787, bequeathed to her certain sums of money, which he left as a charge on his real estate, (part whereof now belongs to the defendant,) and which were made payable to her at successive intervals of seven years, the last of which became due on the 7th March, 1827. In June, 1790, she married John Richwine, who afterwards in 179G, took the benefit of the insolvent laws, and assigned all his estate, real and personal, to trustees for the benefit of his creditors. The assignment embraced not only what was set out in the schedule annexed to his petition, but also all other estate that he was possessed of or entitled to, in right of his wife or otherwise. Tn 1822, Richwine died, at which time his trustees had received all the instalments due on the land, but that of March, 1827, to recover, which when it fell due suit was brought by his wife.

      Evans, for the plaintiff in error.
    The husband of the plaintiff having assigned under the insolvent laws, we contend that the legácy to the wife not reduced into possession surviyed to her. Hammond’s Eq. Dig- 203, §11. 2 Madox’s Chancery, 16. 'Hartman v. Doudel, 1 Ramie, 279. The assignment of an insolvent reserves a reversionary interest, and is not absolute but in the nature of a security. Choses in action of the wife not being reduced into possession in the life of the husband survive to her; and the assignment of them 'merely vests in the assignee, the same right the husband had and subject to the like contingency of surviving to the wife. Wé do not claim for the payments made before the husbands death.

      Barnitz,' for the defendant in error.
    The''plaintiff below claimed thé payments made in the lifetime of the husband. ' The cases referred to in England are under the statute of bankruptcy, in a system sui generis. In the earlier cases they held, there, that bankruptcy took away survivorship, but this yvas afterwards doubted. There too the principle prevaifs, when chancery has possession of a fund, for that court to require a provision for the wife, when application is made for that fund. Here no such jurisdiction exists. But this assignment is under an act of assembly, which requires every possible interest to be assigned. The husband may assign a possibility for a valuable consideration and this excludes the right of survivorship. In the case of Hartman v. Doudel, the assignment was as a collateral security. That case decides that the husband may assign the choses in action of his wife for a valuable consideration and bar her right of survivor-ship, but that a voluntary assignment would not have that effect. Here, however, the assignment was absolute, and for the payment of debts, which is a valuable consideration, and not as a collateral security.

      Lewis, in reply.
    The words of the assignment in this case, if they go beyond the law are inoperative. The act of assembly requires that he should assign his estate. What is his estate? His interest in this chose in action was a particular interest subject to the right of survivorship, and so it must be assigned An assignment is a strict legal right, and derives no aid in England from any principle in equity. The case comes precisely within the principle in Hartman v. Doudel. The assignment was collateral to the debt which remáinéd, and the creditors were not even parties to it. The right to imprison i* collateral to the debt. And where an assignment is collateral to the debt, the wife’s right of survivorship is not defeated. Hartman v. Doudel, 1 Raide, 279.
   The opinion of the court was delivered by

Smith, J.

(who after recapitulating the facts, continued.) The assignment was mad.e in pursuance of the act of the 14th of February, 1730, entitled “An act for the relief of insolvent debtors, within the Province of Pennsylvania.” 1 Sm. laws, 181. Had the husband assigned to the two creditors, who are named as his trustees, all his estate, in discharge of their particular debts, there would be no doubt of their right to the money in question. It would be a perversion of justice, then, to say that his assignment to them, in trust, for the benefit of all his creditors; an assignment without preference, is not equally effectual, in securing the amount to them all. If the assignment had been made, without regard to the act of assembly, it would have passed the absolute right to this money; and as there is nothing in the act, but what strengthens rather than diminishes the consideration, we are of opinion, that the plaintiff’s right of survivorship, is defeated. The observations in the case of Lodge v. Hamilton, 2 Serg. & Rawle, 491, strongly fortify this conclusion. The judgment of the District Court must be affirmed.

Judgment affirmed.


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

text:
    WILLIAM TYSON and others against THOMAS POLLOCK, who survived WILLIAM POLLOCK.
    IN ERROR.
    A. 8c Co. and B. & Co. contracted jointly to purchase from G. a quantity of wheat, for which they were to give the notes of certain banks, which were specified. A part oftlje wheat was delivered to A. &Co. and a part to B. & Co. without the knowledge of C., for which their respective receipts were taken. Afterwards A. & Co. gave drafts on E. at forty-five days, for the grain received by them; which the receipt stated would be considered as so much money, when paid. B & Co. also gave their draft at forty-five days onF. for the wheat they had received, in the acknowledgment of which it was set out, “ that when paid it would be in full.” On receiving these drafts, C. gave up the receipts which A. & Co. and B. & Co. had given for the grain.

      Held: That by the acceptance of these bills, the joint contract of the partner firms, was not merged in their separate responsibility.
    Each partner is separately the agent of the rest, with authority to pay the • whole or any part of the debts, and payment by him is essentially payment on joint account.
    This case came before the court on a writ of error to the District Court of York county, where judgment had been rendered for the defendant in error who was there the plaintiff, on the following “ special verdict.”
    The defendants, Charles M. Poor, William Tyson and Nathan Tyson, as Tyson Sf Co. and Jesse MSGonky and Samuel Byrnes, as Byrnes Sf Co, executed this contract,

      “ York Haven, 5th Jlpril, 1817.
    These will certify that we have this day purchased of W. Sf T. Pollock, three thousand bushels wheat, at two dollars fifty cents per-bushel, to be delivered on or before the 25th instant, if practicable, payable on delivery, or as soon thereafter as it may be called for in money of Northumberland, Swalara, Harrisburg, York, Columbia, Lancaster or Baltimore banks,

      “-Tyson &• Co.

    “ For Byrne Sf Co.

      “Charles M. Poor.”

    The wheat therein mentioned was delivered agreeably thereto. It was forwarded by the plaintiff who resides on the Susquehanna, in Union county, in boats to the defendants’ mills at York Haven, in York county, and there received by the defendants from the plaintifis’ boatmen, and divided equally by the two firms, in the absence of, and without the knowledge of the plaintiff or his partner; and the two firms severally delivered to the boatmen their respective receipts for the part by- them severally received as aforesaid, which receipts were delivered to the plaintiff by the boatmen, and by the plaintiffafterwards delivered to the defendants, on their executing the drafts herinafter mentioned. After the delivery of the wheat as aforesaid, drafts were given to the plaintiff by Byrnes Sf Co. on Samuel Byrnes of Baltimore, dated York Haven, 10th May, 1817, payable forty-five days after date — -.two of them for two thousand dollars each, and two for three hundred dollars each, (which said drafts were all marked “ accepted, S. Byrnes,”) for the amount of wheat which that firm had received as aforesaid, and this receipt given by plaintiff:
    “Received, York Haven, 10th May, 1817, of Byrnes Sf Co, four drafts, two of two thousand dollars each, and two of three hundred dollars each, making four- thousand six hundred dollars; which when paid will be considered as such — deducting the discount — - the drafts at forty-five days. « ^ £ Thos. Pollock.”

    A draft also was given by Tyson ¿y Co, for the amount of wheat which that firm received as aforesaid, on W. SyN. Tyson, of Baltimore, dated 11th May, 1817, at forty-five days, in favour of the plaintiffs, for three thousand six hundred and thirty-five dollars and eighty-rseven cents, which was indorsed, accepted and paid,- foe which a receipt was given by the plaintiffs as follows;

      “ Columbia, 11th May, 1817. Received of Tyson Sf Co. (mentioning the draft,) which when paid will be in full to this day, (the discount on the above deducted.) ([^ ^ ^ pdlock„

    The drafts of Byrnes Sf Co. were not paid, but protested and duly tendered to the defendants.
    The mills of defendants, at York Haven, were owned separately, not jointly, one by Tyson Sf Co. the other by Byrnes Sf Co-.

    Barnitz,* for the plaintiff in error.
    Although the original contract may have been joint, yet as the Wheat was delivered to each firm according to its interest, separate settlements made, and separate drafts taken from each, it was executed as several contracts, and all joint liability was gone. By the agreement the wheat was to be paid for on delivery — the drafts were a payment. Each firm was in full credit and perfectly solvent when the payments should have been made: but the plaintiffs taking drafts without the privity of the different firms, went out of the contract, and thus jeopardized the interests of the defendants. The receipt given “whichwhen paid will be in full,” meant that when the draft was paid, it would be in full of all liability of the drawers. The liability on the original contract would only exist while the contract was executory: but the delivery of the wheat, and adopting a mode of payment which separated the rights of the defendants, a different contract was executed, and the plaintiffs have their recourse only upon the mode accepted by them: the same as where articles of agreement are entered into for the sale of land, and afterwards a deed is made and bonds are given; the liability is then on the bonds. Since the case of Milligan v. Brown, the law is settled that where a receipt is given it discharges the coobligor, and a release under seal is not required to produce this effect. 1 Razóle 391.

      Lewis, for the defendant in error.
    The money was to be paid on the delivery of the wheat, and the credit given was for the benefit of the defendants, and not of the plaintiff Pollock. The giving of the drafts alone would not extinguish the contract; but by the receipt of the 10th May, 1817, there was an express stipulation it should not be extinguished. No fair inference can be drawn from the receipt to Tyson Sf Co. “which when paid will be in full,” that a new contract was entered into; on the contrary it is all one transaction, and shows the agreement was that the plaintiff would take this draft, which with the drafts taken the day before, would be in full. The drafts and receipts refer to the original contract; and the receipts show that the drafts were not taken as payment, but refer to the contract, and were to be in full of that and not of Tyson's part. There is a difference between the receipts here, and in the case of Milligan v. Brown,■
      1 Razóle 391, there the receipt was in full of the proportion óf one of the joint debtors to whom it was given: This court cannot infer from the papers, an intention or agreement to discharge one of the parties to the original contract: clear proof of such fact is requisite. The inference is the other way; for the receipts are carefully drawn to prevent such a conclusion. Taking a security of the same grade, or as collateral to a contract is no extinguishment.

      JDurkee, on the same side.
    This contract is joint, the violence necessary to sever it must destroy it. There is nó equity in the case, the defendants being all principals; moreover the credit given being a benefit to all, is no ground of equitable defence. They are all a firm, and extension of credit to any one of them, is a credit to all. It cannot be pretended that where one partner gives his note or draft, payable at a future day, and takes a receipt which when paid will he in full; that that extinguishes the debt of the firm, because time was given during which suit could not be maintained on it: In case of sureties it might be so. But such transaction leaves the firm and every member liable on the original contract,'which they have neither satisfied in law or equity. Suppose instead of drafts* counterfeit money had been given by Byrnes Sf Co. to the Pollocks, and the next day Tyson Co. paid them the balance, and took their receipt in full ; could it be pretended, upon á suit brought to recover the amount of this spurious money, that such a receipt, or had it been a release, would be a defence 1 It is true that where one of two joint debtors is discharged by the obligor it is the discharge of both: but there must be an intention evidenced by the discharge to produce such effect. The transaction with Tyson fy Co. bears no resemblance to that with Watson, inMilliganv. Brown, 1 Rawle,391. Unless the receipt operates to discharge Tyson, his defence fails. In Milligan v. Brown, Watson agrees to pay two thousand dollars, expressly in exoneration of his liability. This was a turning point in the cause and is of the very essence of it/ The effect of this agreement was to discharge the other defendants, and this was not affected by1' the intention of the plaintiff to hold them liable. It is also necessary that the defendants should establish that the drafts were accepted in satisfaction of the part of Tyson Sf Co. this is not done by the special verdict, and therefore cannot be inferred. The receipt should say in so many words that the draffs were so taken, or it does not impart it. .

      Buchanan, in reply.
    There can be no doubt of the import of the receipt to Tyson Co. fraud or mistake is not pretended. It is a reciept in full, without limitation, and manifests the intention, upon the payment of the amount for the wheat received by Tyson éf Co. to discharge them from all liability. In the case of Milligan v. Brown, the execution was issued upon a debt due, the receipt was taken in terms' not so strong as in the receipt here, and it was expressly proved that theré was no intention to discharge Brown: yet the law discharged him.' Here also, it is not a-person standing in the relation' of Walscm, but the party himself to whom the receipt was'given,' whilst his contract was executory.'
    The' contract, in its inception was- joiht, but Was afterwards ’ severed by the parties as is conclusively shown by the receipt to Tyson Sp Co. In the same manner as if A. and B. buy six'horses' for six hundred dollars, and the vendor takes their' separate notes"1 for three hundred dollars each: can it be supposed that in the' event of the failure to pay, by one of the vendees, t-he liability of' the other on the original contract would remain.-'
    The wheat was divided, and separate receipts taken by the' plaintiils, who were to receive their pay in the money specified,instead of which they took the drafts of the defendants. The several receipts which-had been taken for the wheat, were delivered1 up to the defendants respectively: they were the only evidence to-charge them under this contract. The credit of forty-five days to' Byrnes Co. is a matter with which"Tyson 6p Co.'have nothing to-do; if was given without their consent; they therefore very properly demanded of the Pollocks a receipt in full on the payment-of their proportion. A severance was effected by- the plaintiffs accepting' negotiable security from Byrnes Sp Co.-' one' day, and from Tyson Sp- Co. the next, and the intention to se veris evidenced by the receipt in full. There would be no'equity-'Or justice in permitting"the plaintiffs after giving Byrnes Sp'Co. accredit of forty-five days, in which time they became insolvent, - to recur to the original contract and revive the liability of Tyson'Sp Co.

   The opinion of the court was delivered by

Gibson, C. J.

That the purchase was originally on separate account, has not been pretended at the bar. It was made hy a. partnership'constituted not of individuals but of firms, arid'limited to the act of purchasing only. .The original contract, then, being joint, binds both firms, unless it has been satisfied, or severed by substituting their several for their joint liability. I lay out of the case as a matter with which the vendors had nothing to do, the separate receipt by each firm, of its share of the purchased article; a separation of their interests by the partners themselves, being consistent with- the contract of sale as well as with the object of the partnership. The first question then is, whether' by the acceptance of bills drawn by each of the partner firins at'York Haven, on its parent' house at Baltimore, the joint- contract was merged in their separate responsibility.- By the terms of tlie sale, payment was to he made, at tlxe delivery of the article or on demand, in the notes of particular hanks specified in the memorandum. At the time of delivery, separate receipts were given to the vendors,, which they afterwards delivered up on receiving the bills on Baltimore. For these bills- they gave to Byrnes Sf Co. a written acknowledgment of payment when the contents should be received; and to Tyson Sf Co.-on the following day, a similar acknowledgment of payment in pull, on the same .condition. The transaction, therefore, was evidently a mode of payment by the partnership, and if so, it can have no more effect in producing a- severance of any unsatisfied joint responsibility, than if the partnership had- paid in the bills of any third’persons of which it had accidently become the holder. The hills of Byrnes 4' Co. can by no fair construction be considered as. any thing, else than payment pro tanto of the joint debts; and the hills of Tyson 4- Co. for the balance, which were agreed to he in full when they should he paid, clearly shows that it was so considered b.y the parties themselves. The difference in the terms of the receipts is remarkable; and I am unable to perceive how the omission to specify in the first also, that payment of the hills for which it was given should be in full,, can be referred to any thing but an understanding that it should he in part, and consequently in part of the joint debt-, as it could not be otherwise than in full if made on separate account. There is therefore, positive evidence on the face of the papers, that no severance was intended: But even without this,- why should the separate acceptance of bills from each of two joint debtors, dissolve their joint liability more than would the separate acceptance of counterfeit-bank notes or coin? All that the creditor has a right to require, is payment in fact, for whether joint or several can make no difference to him. Each partner is separately the agent of all the others, with authority to pay the' whole or any pant of the debts; and payment by him is essentially payment’on joint account; so that the acceptance of securities from the individual partner does not necessarily or even naturally imply a relinquishment-of any right against the partnership. Why then should'the creditor be prejudiced in his relations with the partnership, by having accepted what he bad no right to refuse! I take it, the responsibility of the partnership was not relinquished by it, unless the naked acceptance of the bills were satisfaction in law, without regard to.the question of severance in fact, and this I proceed to consider. ■ ;

In relation to the partnership,-each of the partner firms may be treated as a stranger capable of dealing with it in the character of debtor orcreditor; and as by the contract of sale, the wheat was to-be paid for in- the notes -of particular banks, the subsequent acceptance of bills drawn by the partner firms, was payment in the bills of a stranger, of a precedent' debt. On no othe.r hypothesis could there he the shadow of a defence; for as one simple contract will not merge in another, it has invariably been held that the debtor’s own bill or note for the price of goods sold, will not extinguish the original liability. Ld. Raym. 1430. 2 Stra. 1218. Willes, 406. It merely operates as an extension of credit, and prevents "aTrecurrence to the original contract of sale before the bill or note has come to maturity. 1 Esp. 3. We have then payment of a precedent debt in the bills of a third person, which has been universally held since Clark v. Munden, 1 Salk. 124, not to be absolute satisfaction, although it is otherwise where such payment has been in pursuance of the original bargain. I feel no disposition to review the authorities, but I may safely affirm that no case can be found in which any other doctrine was ever held, In Sheely v. Mandeville, 6 Cranch, 264, the acceptance of a hill -was barely held to be a sufficient consideration for an agreement to discharge the precedent debt; which, when dependent on facts and circumstances, is a subject for the consideration of a jury. In Arnold v. Camp, 12 Johns. R. 409, acceptance of the separate note of one of the partners, was inferred to he satisfaction only from the fact that the partnership note was given up, a circumstance that does not enter into the case here. There are in fact no circumstances to take it out of the general rule, hut enough to rebut a legal implication of satisfaction, even were the rule different. It would be decisive in any state of the law, that the parties themselves expressly agreed to take the bills as satisfaction only when they should be paid.

In this aspect, the authority of Milliken v. Brown, 1 Rawle, 391, makes the defendant’s case -neither better nor worse. If by the terms of the receipt given to Tyson & Co. the original contract were severed, or to be discharged by payment of that bill only, then Tyson Sp Co. would he exonerated, both jointly and separately, in-’ dependently of the rule which givesone joint-debtor the benefit of a release intended only for the other; and although the consequences might be important to Byrnes Sp Co. they could not add to the defence of Tyson fy Co. which would he complete of itself. An absolute discharge of one of the debtors, is a postulate of the argument, which being once gran led, makes an end of the question of joint liability, without regard to the question of liability by the other in a separate action. It seems to me that neither of these firms was discharged from the original contract, .and that in .every point of view, the cause is with the plaintiff!

Smith, J.

Admitting the contract between the firm of Tyson Sp Co. and Byrnes Sp Co. and the Messrs. Pollocks, to he joint, (which however, might be doubted, were it not, that the parties had themselves admitted it to be so,) it does appear to me, that by the subsequent acts of the parties, it was severed, and the firm of Tyson & Co. discharged from the performance of, or all liability 4on .the .same. The wheat was divided between Tyson Sf Co. and Byrnes Sf Co. and W. and T. Pollock accepted, on the 11th of May, 1817, from Tyson Sf Co. for their part of the wheat, a draft on IF. and JV, Tyson, of Baltimore, for three thousand six .hundred .and thirty-five dollars and eighty-seven, cents, and receipted for the same, as in full to that day.” At maturity the draft was paid. On.the day before, (the 10th of May, 1817,) the plaintiffs had received, four drafts from Byrnes A Co. on Samvel Byrnes of Baltimore, for four thousand six hundred dollars, fo.r their part of the wheat, which last mentioned drafts were not paid. About five years.and more after all this, the Messrs. Pollocks bring this suit to .recover on the contract of the 5th of April, 1817,from TysonSf Co. the amount of the draft received by them on Samuel Byrnes. And for .this sum and interest, amounting to six thousand fiyehundred and twenty-five dollars, the court below rendered judgment, being for the wheat received by Byrnes Sf Co. and of which Tyson Sf Co. did .not receive a grain. These circumstances go to show, that the Messrs. Pollocks looked to each firm, for the amount of wheat received by them respectively, after the contract had been made, and discharged them from their original joint liability. I am, therefore, of the opinion, that the judgment should be reversed’. A majority of this .court, however, are of a different opinion, and the judgment must .therefore be affirmed.

Judgment affirmed.

Ross, J. concurred with Smith, J.


text:
    JESSE SIDWELL against ROBERT and JAMES EVANS.
    IN ERROR.
    An agreement to forbear to sue for a reasonable time, is a consideration certain enough, upon which to sustain an action
    A judge cannot be required to give a legal construction to the words of a witness, and say whether in point of law they sust.ain the allegation in point of fact. The construction of written evidence is.for the court, and of parol evidence for the jury; and an admixture of parol with written evidence, draws the whole to the jury.
    ■Whether a particular cause of action be proper for a statement, or whether the statement contains any cause of action; or whether a valid consideration be laid, are points that might be mooted on a motion in arrest of judgment: but they are matters with which the jury have nothing to do.
    A plaintiff who states his case more particularly than is necessary, is not bound to the strict proof of circumstances, merely because they have been unnecessarily set out.
    Municipal law is a matter of compact, and as such the construction of foreign statutes, as in the case of any other written compact, belongs to the court; and there is no distinction in this re.spect, between the written and unwritten law.
    Writ of error to the District Court for the city and county of •Lancaster.
    In.the court below Robert and James Evans were plaintiffs, and filed the following statement, which .contains all the facts of the ..case.

      “ That Joseph Sidwell and Levi Sidwell, (brothers of the said Jesse . Sidwell,) were indebted to Robert and James Evans, assignees of Abner Reynolds and Lewis Reynolds, in .the sum of four thousand one hundred dollars, the payment whereof was secured by a mortgage, and ten joint and several obligations, hearing date the 21st day of January, 1817, being part of the consideration money of.a tract of land sold by the said Abner and Lewis Reynolds, to the said Joseph and Levi Sidwell, which said .mortgage,and bonds were afterwards, to wit, on the 2d day of July, 1817, assigned for full value to the .said Robert and James Evans; and farther, that the said Jesse Sid-well, -afterwards, to wit, the 30th day of May, 1820, purchased part of said land from his brother Joseph Sidwell, and-a-tthe same time .executed a bond of indemnity to his said brother Joseph, in the penalty of six thousand dollars, conditioned, .that he, Jesse Sidwell, would assume, and take upon himself, the payment of the said .mortgage and bonds, and indemnify, and keep harmless the said Joseph, from the payment thereof: — and further, that afterwards, to wit, on or about .the 20th day of September, in the year of our Lord, one thousand eight hundred and twenty-two, at the city and county of Lancaster, in a conversation then and there had, and held, between the said Robert and James Evans, and the said Jesse

      Sidwell, of and concerning tlie said mortgage and bonds, so, as aforesaid given for the purchase money of .the said land, he, the said Jesse Sidwell, then and there said, that he considered himself as stepping into Joseph Sidwell’s shoes, and that he considered himself equally bound, as he, Joseph, had been, for the payment of the said money; and then and there, in consideration of the premises to wit, that he had stepped into Joseph’s place, assumed payment, and promised to keep him harmless; and, also, in consideration that the said Robert and James Evans would wait a while, and give reasonable time to him the said Jesse, and forbear to s,ue the said Joseph and Levi Sidwell, for -the said sums of money, so as aforesaid secured by the said mortgage and bonds, he, the said Jesse Sidwell, at his own special instance, undertook and then and there promised to pay the said Robert and James Evans, the said four thousand one hundred ' dollars.

    “ And the said Robert and James aver, that they did wait and give reasonable time to the said Jesse, and forbear to sue the said Joseph and Levi for the said money, .upon the verbal promise and undertaking of said Jesse, made and accepted as aforesaid, and of which he had notice.

      “ And the said Robert and James further say, that they repeatedly offered, -and are still ready and willing to transfer the said mortgage and bonds to the said Jesse, on his paying the said money ; and that they have repeatedly requested him to pay, which he refused, .and still refuses to do — the plaintiffs therefore claim of him, on his said verbal promise, the said debt of four thousand one. hundred dollars,^ and interest thereon, from the said 20th of Sep-' tember, 1822, as justly due them.”
    The only evidence to support the promise, as stated, is contained in the deposition of William Brown, of which the following is the material part.
    “ In 1821 or 22, I was at Lancaster, in the store of Robert and James Evans, they were talking with Jesse Sidwell about paying for the land Abner and Lewis Reynolds sold Levi and Joseph Sidwell, he {Jesse Sidwell,) said he had bought out Joseph’s share of the land and that he considered himself as stepping into Joseph’s shoes, and-that he considered himself equally bound as he had been for the . payment of the money, and if they would wait a while, and not push his brother Levi, he would pay them honestly — both of the Evans’ were there; they were talking of land sold by Abner and Lewis Reynolds to Levi and Joseph Sidwell. I understood by Jesse Sidwell’s talk, he had bought a part of the land, or rather Joseph’s undivided part.”
    Exceptions were taken to the opinion of the court, in answer to several points put by defendant’s counsel, and which were assigned here as error: and which sufficiently appear in the opinion of the court.

      Rogers and J. Hopkins, for plaintiff in error.-

      Buchanan and Jenkins, for defendants in error.
   The opinion of the court was delivered by

Gibson, C. J.

The mischief produced by the want of a provision in our act of assembly similar to that in the statute of frauds, by which a parol promise to pay the debt of another is void, has induced the courts to lean against a recovery wherever the precise terms of the promise are not explicitly shown by clear and satisfactory proof; and were this case before us on a motion for á new trial, I would readily agree to send it to another jury. But on a bill of exceptions where we have no' right to judge of the quantum of the proof, our business is not to' correct the errors of the jury, and make a bad precedent, because the case is a hard one. Did the judge plainly misdirect the jury, or omit any proper direction which he was desired to give? The defendant requested him to charge “ that the deposition of William Brown, given in evidence by the plaintiffs, contains'no cause of action; and that, as that is the only evidence of any cause of action on the part of the plaintiffs, they cannot recover:” and this was declined'.

On this part of the case only, have I entertained a doubt. The witness testified that the defendant in conversation with the plaintiffs, agreed that, “if they would wait a while, and not push his brother Levi, he would-pay them honestfy.” Undoubtedly to wait a while, and not to push Levi, were both efficient causes of the promise; and neither being idle or frivolous, the insufficiency of either as a separate considerationwould be fatal. It is well settled that a general forbearance is to be intended a perpetual forbearance ; but how far a forbearance not perpetual, but for an unspecified time is a valid consideration, is not so clear. It seems'to be agreed, there must be a substantial suspension of the right to sue ; and therefore an agreement to forbearjier breve; or paululum tempus; or pro aliquo parvo tempore;' or even pro aliquo tempore; which resembles the case at bar, is insufficient, because such an agreement is so uncertain in its terms as not to stand in the way of a suit the next moment. 1 Com. Dig. 196. But in all these instances the question stood on the pleadings, and the extent and meaning of the words were tobe determined by the court: here they were for the jury. Forbearance for a reasonable time is clearly certain enough; and being so laid, it is said the judge at Nisi Prius, shall be judge of that, or leave it to the jury on the circumstances, (id.) Take it, then, that the plaintiff had so laid his case in a declaration, (and the mode of pleading directed by the legislature, will surely not affect the.case as it stands on the evidence,) could the judge have been required'to give a legal construction to the words of the witness as if they stood in a deed or a will, and say whether'in point of law they sustained the allegation in point' of'fact 1 That the construction of written evidence is for the court, and of parol evidence for the jury — and that an admixture of parol with written evidence draws the whole to the jury,"are principles which appear every where iti our books-; particularly in Welsh v. Dusar, 3 Bin. 377. Denison v. Wurtz, 7 Serg. & Rawle, 372. Moore v. Miller, 4 Serg. & Rawle, 279. Watson v. Blaine, 12 Serg. & Rawle, 131. Overton v. Tracy, 14 Serg. & Rawle, 311. Brown v. Campbell, 1 Serg. & Rawle, 176. A-judge is not bound to give an opinion- on factfe;- or to say what the law is on'the whole evidence: he may advise, but if he directs- the jury to find in-a-particular way, it is error. Galbraith v. Black, 4 Serg. & Rawle, 210. White v. Kyle, 1 Serg. & Rawle, 515. Jones v. Wilder, 8 Serg. & Rawle, 150. In Sampson v. Sampson, 4 Serg. & Rawle, 329, which would be in principle the case at bar-, the judgment was reversed because the judge concluded by saying that the evidence was “very loose — too loose to entitle the plaintiff to a Verdict.” I am aware that the propriety of this decision has been doubted by the profession; not however, because a binding direction on a questton’of fact, is not:error, (for no lawyer ever doubted that,) but because it has been thought that nothing in the expressions of the judge ought to have induced a suspicion that he meant to take ■ the chuse from the jury.-Ibis clear, therefore, not only that thejudge was not only free to decline the directions prayed for- here, but bound not to'give it:- The meaning of the parties as expressed by ithemselves aUd detailed by the witness, was exclusively fór the I jury who alone are competent, in legal estimation, to the construeUion of words spoken; and’perhaps there was enough even in point of reason to warrant the verdict: But it is said there is positive error in the direction obtained by the plaintiffs, that “ the jury must decide from the testimony in the cause.- If they believe from that testimony that the defendant agreed for the consideration set forth in his statement, to1 pay the whole amount of the mortgage, being thesu-nrof four thousand one hundred dollars,-as the plaintiffs have alleged, then such agreement constituted a valid contract; and if the plaintiffs have performed the consideration, they are entitled to recover the amount: otherwise not.” Who can doubt iti The direction is in guarded conformity to the rights of the jury over the facts. But it is said that it was so ambiguous as to authorise a verdict for the amount of the mortgage, although all the instalments Were not due when suit -was brought. But the propriety of such a verdict woulddependonthe terins of the promise, which might be to pay even before the original debt should be due. But taking for granted that the judge might have directed the contrary as matter of law, was he bound to' go beyond the proposition submitted, and present the case in every aspect of which it was susceptible on the evidence % If such were the rule no judgment would ever be affirmed; for there are few judges, in courts of error; whose ingenuity would not suggest something in addition, that might hake been appropriately said. It has, however, been determined by this court,-when its vision in the inspection of error was certainly not dull, that a judgment is hot to' be reversed because the judge has not made all the remarks of which the nature of the case may. admit. Lilly v. Paschall’s executors, 2 Serg. & Rawle, 394. But the truth is, that although the judge might have advised a. verdict for no more than the amount of the instalments due,’ or for the defendant generally, it would have been error to direct it; the terms of the promise, as well as' performance of the consideration, presenting questions which were purely for the jury.’

Whether this particular cause of'action be proper.for a statement, or whether the statement contains any cause of action, or whether a valid consideration were laid, áre points that might be mooted on a motion in arrest of judgment, but they are obviously matters with which the jury had nothing to do.

If a plaintiff, having stated his case more particularly than was necessary, is bound fo prove it strictly- as stated, the legislature has attempted in vain to guard against .the common law mischief of variance between the allegata and theprobata, for which many a meritorious plaintiff was turned, out of court. The statement act which was produced by the inconvenience of strict pleading has always been liberally construed in suppression of the mischief, and advancement of the remedy; as in Boyd v. Gordon, 6 Serg. & Rawle, 53, and Riddle v. Stevens, 2 Serg. & Rawle, 537, where an averment of performance of previous conditions was held to beunneces- ' sary. Little would be gained if a .party were held to strict proof of circumstances, merely because they had been unnecessarily set out. Even at the common law, an immaterial averment, which may be separated from the principal fact without prejudice to the cause of action; while a sufficient allegation is still left, 'requires no proof. Starkie’s Ev.pt. IV 347-8-9. Here in .addition to the date of the promise and the amount claimed, which is all the act requires, the plaintiff set forth his supplementary statement, various unnecessary details which may be struck out leaving a distinct substantive cause of action; andas the averments about the mortgage were immaterial they might,consistently with.the nicest principles-of the common law, be disregarded. But there was another statement filed, in which these unnecessary details were omitted; and. why might not the plaintiffs recover on that, as on a particular count in a declaration? It was not withdrawn -when the second was filed, and the plea expressly put it in issue; why,.therefore, shall not the second be considered only as an additional count? If a plaintiff may not state his case in several ways to give him- the benefit of the chances afforded by the evidence; and is nevertheless to be held to the strictness of common law proof, his condition is worse than it was before the legislature interfered to protect him.

. A promise, in consideration of forbearance is undoubtedly not binding, if there were originally no cause of action. But as the plaintiffs were entitled to Sue the Messrs. Sidwells as assignees of their bonds to the Messrs. Reynolds, there was a sufficient liability, independent of the assignment of the mortgage, which, however, being proved at common law,- might well go to the jury for what it was worth. The defendant will, at all events, have the benefit of it as a security, as amply, as it could be enjoyed by the plaintiffs or the Messrs! Reynolds, whom the court of chancery in Maryland would doubtless compel to assign to him, if the assignment to the plaintiffs were invalid. I mention this part of the case for the opportunity which it presents, (the point having been incidentally mentioned in the argument,) of correcting an error into which I fell, in Mullikin v. Aughinbaugh, 1 Penn. Rep. 125, by. asserting that the construction, as Well as the existehce of foreign laws, is for a jury and not for the court.. Municipal law is a matter of compact, and as such, the construction of foreign statutes, as in the case of any other written compact, belongs to the court. A plausible distinction might be taken in this respect, between the written and the unwritten law, which necessarily rests on parol; but it seems to have been disregarded in Mogston v. Fabrigas, Cowp. 174. Dougherty v. Snyder, 15 Serg. & Rawle, 86. Consequa V. Willing, 1 Peters, C. C. R. 225. Robinson v. Clifford, 1 Wash. C. C. R. 1. and Setons v. Delaware Ins. Co. id. 175 — a weight of authority more than sufficient to bear down any argument that could be raised on a mere theoretic foundation.

The remaining point which regards the supposed recovery of .more than was due at the institution of the suit, is already disposed of. The sum to be recovered depended on the nature of the promise which was to be ascertained by the jury. If there was any legal impediment to a recovery of the whole, it was the business of the defendant to point it out and desire the benefit of it, instead of which he put the whole to ihe court as an unmixed matter of law.' The terms of the promise are undoubtedly so uncertain and imperfectly stated by the witness, as to render a recovery on it exceedingly dangerous; but having no discretion, we cannot reverse for an insufficiency of the evidence, and we discern no misdirection in point of law.

Judgment affirmed.

Rogers, J. dissented. >

Hustox and Smith, Justices, not having heard the argument, gave no opinion.


text:
    THOMAS INGHAM and others, heirs of JOSEPH INGHAM, deceased, against MASON CRARY and NATHAN BEACH.
    A- parol gift of a lot of ground by a father to his married daughter, accompanied by possession and valuable improvements made by the husband at his own expense, vests in him no estate in addition to the freehold which the law allows him in right of his wife.'
    It is competent to give evidence of what was said previously to the execution of a deed, in order to establish the feet that the grantee received the deed i:i trust for another.
    A certified copy of the docket entry of a suit cannot be received to establish the existence of a former suit pending for the same cause; and if received, the error will not be cured by the instruction of the court in their charge to the jury, to disregard it;
    Writ of error to the Common Pleas of Luzerne county.
    This was an action of ejectment brought by Joseph, Ingham in his life time, against Mason Crary, for a house áiid lot in the borough of Wilkesbarre, Nathan Beach was, ón motion, admitted to be a co-defendant, being the landlord Of Masoii Crary.

    The evidence Of the plaintiff’s title was, 29th May, 1805, patent to Jesse Fell, for five acres and one hundred add fifty-one perches, including the lot in dispute. 3d August, 1805, deed Jesse Fell and wife to Jonas Ingham, for the lot in dispute; 19th July, 1819, deed, Jonas Ingham to Charles Kinsey; 6th September, 1821, deed, Charles Kinsey to Joseph Ingham

      Ethan Baldwin, Esq. was then called as á witness by the plaintiff, tó testify, that an erasure, Whifch appeared in the deed of 19th July, 1819, of Iiigham to Kinsey, was riiade beforé its execution; and upon his cross examination said, in substance, that that deed was made for the purpose of giving to Charles Kinsey, who was then a citizen' of New Jersey, colour of title to the lot in dispute, so as to enable him to maintain an ejectment in the Circuit Court of the United States. The defendants then proposed to ask the witness, whether he did not then receive directions to bring a suit in that court, and what he did in pursuance of those directions. To which the plaintiff objected, that they could not prove the existence of a suit by parol: the court overruled the objection, and sealed a bill of exceptions at the request of the plaintiff
    The witness then, in substance said, that he had brought an .ejectment in the Circuit Court in the name of Charles Kinsey, for the lot in controversy.
    The defendants then offered in evidence, a certified copy of the “ docket entries” of the suit brought in the Circuit Court of the United States, for the same lot, to October session, 1819. To which the plaintiff objected, that it did not purport to be an entire copy of the record. The objection was overruled and the paper admitted, to which the plaintiff excepted,
    The defendants then offered and stated the testimony of Jesse Fell, to- which the plaintiff objected, but the court admitted the evidence, and sealed a bill at the request of plaintiff
    The witness then said: “Mrs. Ingham the wife of Jonas Ingham, about 1804, called on me and said, that she had a legacy left her, which she wished to lay out for her daughter Mrs. Perry, and applied to me to buy the lot in dispute. We agreed upon the price, two hundred pounds, and the deed was to be made whenever a release of the lot could be obtained from a certain mortgage upon it and other lots. The release was obtained. Jonas Ingham was not present when the agreement was made with Mrs. Ingham; but he and I executed the agreement some time afterwards according to the terms which she and I made. It was to be purchased for Mrs. Perry. The purchase money was paid with the money of Mrs. Ingham by the hand of Benjamin Perry, the husband of Mrs. Perry. I had expected the deed was to be made to Mr. Perry or' his wife. Jonas Ingham brought to me the release from the mortgage; I then asked him in whose name the deed was to be made, he said in his own name: he did not say then it was for Mrs. Perry; but he did say that Perry was trading pretty largely, and he did not know how things might turn out, or something to this effect. Perry had his goods in the shop on the lot when the deed was 'made by me to Jonas, Ingham; he then made a kitchen of the shop and built, the house which is now on the lot; I cannot say whose money he built it with. Jonas Ingham and his family were down while Perry was building.” Being cross examined he said, “It seems to me that both Mr. and Mrs. Ingham were present when the deed was executed. I do not know that I ever heard Ingham say that it was for his daughter, or where the money was to come from. Perry lived in the house on the lot, about ten years after it was bought; he lived there until it was sold by the sheriff as his property,-to Beach, and afterwards for some time.”
    Other testimony was then given by the defendants, which was in substance, that in 1807, Perry built the house on the lot now in dispute, that it cost from one thousand five hundred to three thousand dollars. They then exhibited the record of two judgments against Perry; the first for about two thousand dollars, and the other for about two thousand five hundred dollars — both of which Beach had paid in consequence of a liability so to do, and the judgments were assigned to him. On the first judgment a Ji. fa. issued, which was levied on this house and lot, which was condemned, and subsequently sold by the sheriff to Nathan Beach, the defendant, for one thousand four hundred and eighty-one dollars. Sheriff’s deed dated 3d April, 1813.
    The plaintiff then gave in evidence the deed of release, before spoken of, of this lot from the mortgage, which was to Jonas Ingham ; and the receipt for the consideration by the releasor was “ received of J. Ingham, per Benfn. Perry,” &c.
    The court (Scott, president,) charged the jury as follows:
    “ The certificate of the clerk of the Circuit Court of the United States produced in evidence on the part of the defendants, was not evidence of the pendency of a suit for the lot in question in that court at the time this suit was instituted.
    “ The plaintiff on his part has shown a legal title to the land in question; but the defendants resist a recovery, and claim title under Benjamin Perry, as whose property the lot was sold; and who, they allege, was the equitable owner. If the jury believe from the evidence that the land in question was a gift to Perry, by Jonas Ingham the father of Perry’s wife; that Perry was in possession at the time, or went into possession in pursuance of such gift, and made valuable improvements thereon, and continued in possession up to and after the sale to Beach, the defendants cannot now be disturbed: their title must prevail. It has long since been settled in Pennsylvania, that a gift of land, accompanied by possession, and by the donees making valuable improvements thereon, was valid. As to notice of Perry’s equitable title, the law is, that one who purchases a legal estate, without notice of an equitable interest, takes it discharged of the equity. Notice of an equitable title may be actual or legal: actual notice is where notice in fact has been given: legal notice is where from circumstances there is a violent presumption of actual notice. A clear, unequivocal and undisturbed possession by the equitable owner, is notice to all the world of his claim. A judgment against the equitable owner, whilst so in possession, a fufa., levy, condemnation and sale thereon, and the sheriff’s deed and acknowledgment thereof to the purchaser amounts ■to legal notice.”

      To which opinion the plaintiff's counsel excepted, and the court sealed a bill. ' .

      Conyngham and Willetson. for plaintiffs in error.
    The evidence contained in the first bill of exceptions wasj in substance, parol proof of the existence of a record which was error. Vanhorn v. Frick, 3 Serg. fy Ramie, 282. It was not the best evidence of the fact; the record itself was better.
    Second bill. The docket entries of the suit in the Circuit Court were but a part of the record. The record does not purport to be entire, the admission of which in evidence was clearly error. Vincent v. Huff, 4 Serg. Sf Ramie, 800. 2 Saun. Plea, and Ev. 17. Whart. Dig. 223, JVo. 13,14. Edmision v. Scmarta, 13 Serg. 8g Ramie, 135. Christine v. Whitehill, 16 Serg. Ramie, 106. , Ferguson v. Harmood, 7 Cranch, 410.
    When illegal evidence is admitted, the error will not be cured by the direction of the court to. the jury to disregard it. • Schaeffer v. Critzer, 6 Bin. 430. Nash v. Gilkeson, 5 Serg. Sg Ramie, 852. Third bill. The declarations of a wife should not be received in evidence to affect the rights .of her husbánd. 1 Phil. Ey. ,64. 1 Bac. Ab. 497, title Baron Sg Feme; Webster v. MGennis, 5 Bin. 235. But the evidence should not have been received for añothér reason; that all previous conversations and bargainings on the subject were consummated by and merged in the deed. Coaens v. Stevenson, 5 Serg." Sf Ramie, 422. Heagy v. Umberger, 10 Serg. Sg Ramie, 342. Christine v. Whitehill, 16 Serg. dg Ramie, 106. Collam v. Hooker. 1 Ramie, 108. M‘Williams r. Martin, 12 Serg.'Sg Ramie, 269. WharC. Dig. 580, No. 10. Bromn v. Dysinger, 1 Ramie, 4Í2.
    The court assumed the fact, of a parol gift by Ingham do his son-in-law, or to his daughter, which there was no evidence to support. He never intended to give the lot to Perry, and the charge of the court should have been to this effect. Meth. Epis. Church v. Jaques, 1 Johns. Chan. 450. Lancaster v. Doland, 1 Ramie, 231.

    The purchaser of a legal title is not'effected by an equity of which he has not direct, express and positive notice. Scott v Gallagher, 14 Serg. Sg Ramie, 333.

      Mallary and Greenough, for defendants in error.
    ■ The,parol evidence mentioned in. the first bill of exceptions, was not offered for the purpose of proving the existence of a suit in the Circuit Court, but to show the real transaction with Kinsey, and that he had nó real interest in the title, which was made to him mala fide, asa citizen of another State,in order to give jurisdiction to that cofirt: and this, to meet the allegation of the plaintiff, that he was an innocent purchaser of the legal title without notice- of the equity of Perry.

    The fetord does hot show the. object for which the copy of the docket entries was offered; if therefore it was competent for any purpose, there is no error in its admission. It was offered and received in the midst of the testimony of the witness, who detailed the facts in relation to the execution and delivery of the deed to Kinsey, and while the witness was speaking of the object for which that deed was given; it was therefore competent to show' the date of that transaction: for a transcript is sometimes evidence for a particular purpose. Eisenhart v. Slaymaker, 14 Serg. Rawle, 153.

    But after all the evidence was given, and the aspect in which the cause went to the jury, there is no point of view in which it can be considered, that the plaintiff was at all prejudiced by that evidence: and if so, this court will not reverse the judgment, even. if it was illegally admitted. Allen v. Roslain, 11 Serg. Sf Rawle, 362. Brown v. Downing, 4 Serg. Rawle, 498. .Edgar v. Boies, 11 Serg. Sf Rawle, 445. ■
    The rule that the declarations of a wife cannot be given in evidence against her husband, is not applicable here: nor were they offered as mere declarations, but as a part of the res gesta, the declarations of one engaged in making the contract for the purchase of the lot: if she had been acting even as the agent of her husband, her declarations would be evidence. Commonwealth v. Ebetiy, 3 Serg. Sf Rawle, 9. Babb v. Clemson, 12 Serg. ¿g Rawle, 328.
    The law is well settled that a parol gift by a father to a child, accompanied by possession, and the making of valuable improvements, gives a good title. Syler v. Eckert, 1 Bin. 378. This position does not seem to be controverted on the other side, but it is called an equity of which the plaintiffs had not notice; this is not so, for Perry was always in possession, which is notice to every one. Billingtonv. Welsh,5 Bin. 129. Harrisv. Bell, 10 Serg.Sf Rawle, 44. Beehman v. Frost, 18 Johns. 558.
   The opinion of the court was delivered by

Gibson, C. J.

The plaintiffs claim through a conveyance from . their father to Kinsey, an inhabitant of Jersey, who obtained the legal title for a valuable consideration, as it is alleged, and without notice of the equitable estate of Perry and his wife, which, whatever it may be, is vested, at least for her life, in Beach, one of the defendants. To rebut this allegation of a purchase without notice, it was open to the plaintiffs to show that the title was conveyed to Kinsey on a secret trust to enable the grantor to institute an ejectment in his name, in the Circuit Court of the United States; and with a vipw to this the defendants might clearly examine the subscribing witness, who was also the attorney of the parties, not only as to what passed at the execution of the deed, but as to what he himself did in consequence of it; and if it should turn out, as it did here, that he immediately instituted an ejectment in the federal court, on failure of which the premises were reconveyed to the family of the grantor, it would furnish not only competent hut satisfactory proof that the original conveyance was intended merely to give colour of jurisdiction to that court; in which state of the fact, it would be without effect as to the title of a third person.

The docket entries in the Circuit Court which were offered, for any thing that appears, to show that another action for the same land was pending when the present suit was instituted, were undoubtedly 'inadmissible. It expressly appears by the act of authentication, that the whole record was not certified; and perhaps there is in Pennsylvania, a peculiar fitness in rejecting the arbitrary and often inaccurate memoranda and references from the minutes on the docket to the various parts of the record, -as evidence of its contents. Even convenience would not be served by relaxing the rule which requires the whole record to be certified, it being as easy to procure the whole as a part; and were any thing less than the whole to suffice, we can readily see what abuses would ensue from selecting particular parts and suppressing the rest. Here the identity of the premises was the fact on which the effect of the record as evidence in the cause essentially depended; and to prove it, an abstract of the description in the declaration was certainly inferior to the description itself. The judge himself became convinced of the incompetence of the record, and directed the jury to disregard it; but sucha direction was held in Sheaffer v. Kreitzer, 6 Bin. 431, and Nash v. Gilkeson, 5 Serg. & Rawle, 352, insufficient to repair the consequences of the error.

• It is not to be doubted that the evidence to establish the trust, was perfectly competent. It is generally true that previous stipulations merge in the conveyance which is the consummation of the agreement; and this holds between the immediate parties in regard to questions of satisfaction of previous covenants,. but not between one'of the parties and a third person in regard to collateral matters; else a conveyance of the legal estate would, in every case, rebut the implication of a trust. Mrs. Ingham, in the absence of her husband, applies to Mr. Fell to purchase the lot in dispute for the benefit of her daughter Mrs. Perry. The terms are settled and reduced to writing; and, at the time for executing the contract, her ability to treat is recognized by her husband, who takes the conveyance to himself and not to his daughter, only because he deems it prudent to vest the legal estate in himself, the son-in-law being in trade. Had the gift .to the daughter been purely gratuitous, it might have been guarded from the claims of her husband’s creditors by the creation of a trust; but her equity arises from an expenditure of money by her husband in pursuance of an understanding by all parties, that the lot with the improvements should be a provision for her; without which the gift would be void. I discover no evidence of a gift to Perry himself, in the absence of which the ex-pendit-ure of his money would give him no estate, in addition to the freehold which the law allows him in her right; which, however, is sufficient, even without the birth of a child, (the wife being alive,) to entitle the defendants to a verdict; and should the jury,-whose province it is to judge of the intention-from the evidence, be satisfied that the gift was to Perry, or to him and his wife jointly, the case would certainly be no worse for the defendants. In the ad-, mission of this part of the evidence, therefore,-and the direction of the judge as to its legál effect,* we perceive no error; but for the comparatively unimportant error in admitting the extract of a record, we regret to say the judgment must be reversed.-

Judgment- reversed, and a venire de novo awarded.


text:
      HUGH BURNS, JAMES ROBINSON and JOHN ROTHROCK, against the HUNTINGDON BANK, for the use of JOHN GEISSINGER.
    A judgment was obtained against a principal wlio gave absólütp bail to obtain1 a stay of execution; after which the absolute bail were sued and judgment obtained'against them'. Held: That one of two sureties in the original obligation who paid one half the debt, is entitled to an assignment of the judgments against the principal and the absolute bail,- to enable him to' indemnify himself for the amount thus -paid. _ _ _
    _ _ _ The order of-the court- of Common Pleas making such assignment,-is the' subject of a writ of error.-
    Writ of error fo the court of Common Pidas of Miffliri countyv

      Robert Burns borrowed from the Huntingdon bank, oiie thousand-dollars, for which sum he gave, his'note with John Geissinger, and James Mackey, as endorsers. The note hot'having'been paid át maturity, the bank sued Robert Burns, arid obtained a judgment against him, and sued Geissinger and Mackey, the endorsers, arid obtained judgment against them. On the 24th January, 1818,* Hugh Burns, James Robinson ánd John Roihrock, became the absolute bail in the judgment against' Robert Burns, under the 7th'seC-tionof the act of 21st March, 1808, to obtain' for the defendant, a stay of execution for one year from the return day of the: writ.The money not having been paid within the year,' the bank sued the recognizance of JIugh Burns¡ Janies Robinson and John Roihrock, to August term, 1818, and obtained a judgment against them, upon which a fieri facias issued, and was levied upon real estate, which was extended.

      Geissinger, having paid the one half of the judgment which hald been obtained against him and Mackey as endorsers, on the 21st August, 1824, obtained from the court of Common Pleas, a rule upon Robert Burns, the principal, and Hugh Burns, James Robinson and John Rothrock, the absolute bail, to show cause “why the judgment at the suit of the Huntingdon Bank v. Robert Burns, and any recognizance in that suit, should not be marked for the use of the said John Geissenger, for the purpose of enabling him to indemnify himself for the money which he had paid in the suit of the same bank against him and Mackey.”

    The right of the court to enforce this rule was denied on two grounds. First. That both parties are bail of Robert Burns, and neither has a superior equity. And second. That Geissinger is not, at all events, entitled to the interposition of the equitable power of the court, until he has paid the whole of the money.
    Both these positions were overruled by the court, {Burnside, president,) who made the rule absolute.
    This order of the court was here assigned for error.

      Potter, for defendant in error,
    moved to quash the writ, on the ground, that there was no final judgment, but a mere exercise of the discretion of the court.

      Blanchard, for plaintiff in error.
    The exercise of the power of the court was in the nature of an action, by which one was made liable to another for money; in all such cases a writ of error will lie. The Commonwealth v. The Judges of the Common Pleas of Philadelphia comity, 3 Bin. 273. ■
    The claim of Geissinger to the right to have execution against the absolute bail, is in the nature of a right of action against them, and if it can be sustained, must have the essential qualities of a right of action — privity of contract, and a consideration; neither of these exist here. Both Geissinger and Hugh Burns and others, the absolute bail, are liable to the bank, each in consequence of his independent legal obligation; as between themselves there is no privity, and neither has a superior equity to the other: in such cases a court of equity will not interfere. Viers and wife, v. Montgomery, 4 Cranch, 177.
    Equality is not equity between sureties bound by different obligations, Peck v. Ellis, 2 Johns. Chan. Rep. 137. Burrows v. M‘Whann, 1 Desaussure’s Chan. Rep. 409. 3 Har. ¿y- M‘Hen. 254. .Ranch v. Becker, 12 Serg. Rawle, 412. Bachelder v. Fisk, 17 Mass. Rep. 464.
    But at all events there can be no substitution until the whole debt is paid: no one can take the place of the bank until it is first satisfied.

      Potter, for defendant in error.
    The bank having obtained a judgment against the principal in the note, who procured absolute bail to be entered for a stay of execution, the recognizance then entered into became a part of the judgment, and an additional security to the bank: and upon the well settled principles of equity in Pennsylvania, a security who pays money for the principal is entitled to all the securities which the plaintiff has for the debt. Wolfersberger v. Bucher, 10 Serg. 8f Rawle, 12. The same doctrine is contained in Parsons v. Briddocfc, 2 Vernon, 608. If the Huntingdon bank had had the bond of a third person as a collateral security, the endorsors would have been entitled to an assignment of it also. Hays v. Ward, 4 Johns. Chan. 127. The doctrine of substitution does not depend upon privity of contract, but upon principles of equity and justice. JJorshdmer v. BucherSerg. fy Rawle, 9. Lenox v. MCdll, 9 Seng, fy Rawle, 309. Classen v. Morris, 10 Johns. Rep. 524. Waddington v. Redinburg, 2 Johns. Cases, 227. King v. Baldwin, 2 Johns. Chan. 554. 1 Eq. Ca. Ab. 93. 1 Atkins, 135. 2 Peer Wms. 543. Hawk v. Geddis, 16 Serg. df Rawle, 23.
    The endorsers were prejudiced by the interference of the absolute bail who put a stop to the proceeding of the bank to obtain the money.

      Hale, in reply.
    We are concerned as well for the bank, as for the absolute bail; and contend that in no case can the sureties claim an assignment of the judgment or other security against the principal until they have paid the whole debt. Here Geissinger has paid but one half of the debt, and under these circumstances no court has power to interfere with the securities of the bank until their debt is paid in full.
    If this order of the Common Pleas is sustained Geissinger may take out a lib. fas. for the one half of the judgment and at some future day Mackey may pay the other half and take out a lib. fas. for bis money: or before such payment the bank may take out a lib. fas. for the balance yet due to them, which would be exceedingly inconvenient and irregular, and which shows the propriety of tjie rule, that the whole debt must be paid.
    The entry of absolute bail for the stay of execution was a legal consequence, and which the endorsors therefore knew, when they undertook the responsibility of endorsing for Robert Burns. They were not prejudiced by this: and if they were, it was the subject of proof, and which it was incumbent upon them to make.-
    But there is another ground of objection. Although the condition of the recognizance, entered into by the absolute bail was, that the defendant in the judgment should pay the money within a year, yet time was not of the essence of that contract, for a discharge of the original judgment at any time thereafter, would be a discharge pro tanto of the recognizance, whether that payment be made by the defendant himself or by any collateral security which the plaintiffs had for their money. The payment, therefore, by Geissinger of five hundred dollars, discharged the judgment against the principal to that amount; and of course discharged the recognizance of the absolute bail to the same amount.
   The opinion of the court was delivered by

Gibson, C. J.

It seems the bank is satisfied, and the question is between Geissinger, who actually paid the debt of Burns, and Roth-rock and Robijisop,, who were bound by recognizance and judgr ment to pay it. As against Burns, in relation to whom Geissinger stood as a surety, t,he ease would b,e clear; but it is said that as against Rothrock and Robinson, who also stand in the relation of sureties, and not in privity with Geissinger, there .is not the same equity. Privity is perhaps essential to a claim for contribution, but it is certainly not indispensible to the right of subrogation; of which Parsons v. Briddock, 2 Vern. 608, is an emphatic instance. There, a judgment against bail in an action on the several bond of the principal, was decreed to be assigned to the sureties who had, in the meantime, been compelled by ,an action on the same bond, to pay the debt. Yet there was noprivity; and although both parties stood in the relation of surety towards the principal, they nevertheless stood in unequal equity between themselves, because the bail had so identified himself with the principal as not to be distinguished from him. Nor ought they to be distinguished here, inasmuch as they interposed to procure a personal advantage to the principal, and to the detriment of the surety, who might perhaps, have been exonerated, had. the proceedings not been staid against the principal; and in this respect the case is rather stronger than Parsons v. Briddock. TJie bank being satisfied, there is therefore no doubt that Geissinger is to be substituted for the amount paid by him. On the other hand, there is as little doubt that a writ of error lies on an order like the present, which is in the nature of an award of execution, and which would otherwise leave a party jnjured by it, without remedy.

Order of the Common Pleas affirmed.