author: Chief Justice Sharswood

text:
    Kane versus Commonwealth.
    1. The word, “day,” as used in the 11th section of the Act of April 12th 1875, prohibiting the sale of liquors on election day, includes the whole twenty-four hours, beginning at midnight of election morning, and ending at midnight of election night.
    2. Section 24, article 5, of the new constitution, which provides for a writ of error in criminal oases, does not change the rule that in such cases the jury are judges of the law as well as the facts.
    3. The jury having the power, have the right to give a verdict contrai’y to the instructions of the court upon the law. No court should give a binding instruction to a jury, which they are powerless to enforce by granting a new trial if it should be disregarded. They may present to them the obvious considerations which should induce them to receive and follow their instructions, but beyond this they have no right to go. The argument in favor of their taking the law from the court is addressed very properly ad verecundiam. The courtis appointed to instruct them, and their opinion is the best evidence of what the law is.
    4. 'The power of the jury to judge of the law in a criminal case is one of the most valuable securities guaranteed by the Bill of Rights.
    March 26th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Quarter Sessions of Montgomery county: Of January Term 1879, No. 28.
    Francis Kane, who kept a tavern in Norristown, was indicted for selling liquor on election day, in violation of section 11 of the Act of April 12th 1875, Pamph. L. 42, which provides:
    “ It shall not be lawful for any person, with or without a license, to sell to any person any intoxicating drink on any day on which elections are now required to be held.”
    The defendant pleaded “ Not guilty.”
    At the trial it appeared that the liquor was sold in the evening of election day, after the polls were closed, and it was contended that the sale of liquor, as a beverage, after the election was over, by a licensed vender, was not a misdemeanor under, the statute. Among other points, the defendant submitted the following “ The jury are the judges of the law and the factto which the court answered: “We decline to affirm this point, and as to it refer to the general charge.”
    In the general charge, the court, Ross, P. J., inter alia, said:
    “ The defendant is a licensed vendor, and keeps and maintains a hotel in this borough. He does not deny the sale, and it appears, from the evidence of a witness who was present at a former trial, that he admitted, when he was a witness, that he did sell after the polls closed.' Is a sale under such circumstances a violation of the laws regulating the sale of liquor ? [I charge you, as' matter of law, distinctly and positively, that any sale of liquor made upon the day upon which elections are held, is a misdemeanor under the Act of April 12th 1875, Pamph. L. 42, sec. 11; and that the word ‘ day,’ as used in that section, applies to the whole twenty-four hours, beginning at midnight of election morning and ending at midnight of election night.] The law recognises no fractions of a day. That this was the intention of the legislature is clearly shown by the Act of March 13th 1872, Pamph. L. 24. That law prohibited a sale during the hours while the election was in progress. Experience proved that a sale before, and particularly a sale after, the polls closed, was as demoralizing as a sale while the election was being held, and hence the legislature extended the. prohibitory period to the entire day of twenty-four hours. Therefore, I repeat, a sale, in those twenty-four hours, of liquor as a beverage is a misdemeanor. But it is urged that the Act of 1872 is not repealed by the Act of 1875. If hot repealed, it is supplied, extended and enforced by that act; and a defendant who sells liquor on election day, as I have defined it, as a beverage, cannot shelter himself under the Act of 1872. * * *
    “ You have been asked to disregard the charge of the court as to-the law, and you have been told that you, and you alone, are the judges, in a criminal case, of the law as well as of the facts. [You are instructed by the senior counsel for the defendant that the court can only express an opinion as to what the law is, but that this opinion does not bind you. Now, it is well known that doctrine was one that I rigidly enforced, against, in many instances, the protest of learned counsel. But I believed it to be grafted in our system of jurisprudence, and I felt a jealous anxiety to preserve the rights of the citizen and the jury from judicial domination, usurpation or dictation. When a defendant had no remedy after conviction, save a motion for a new trial or arrest of judgment, based upon errors of law, before the same judge who committed such alleged errors, the doctrine was wise and right. But when the new constitution, and the legislation in pursuance of it, gave defendants in a criminal court writs of error, the reason which led to the adoption of the doctrine ceased, and the doctrine no longer exists.] It is very recently, in the case of Commonwealth v. Bla¿siusPistorius, that I charged the jury they must receive and be guided by the law of homicide as declared by the court. The defendant was convicted of murder in the first degree. This instruction was assigned as error, but the judgment was not reversed on that ground.
    “You are the exclusive judges of the facts; they are for you alone. The law is for the court, and you will be governed by it, or you will not, as you have sworn to do, try the case i by the law and the evidence.’ I do not assert that I am infallible. It is human to err, but it is not for you to declare my error. If I err, I am glad to know that I can be corrected, and the defendant protected, in a higher tribunal.
    “ If, then, you believe the defendant here sold liquor during the twenty-four hours of the day upon which the election was held, though not in progress at the time of the sale, your verdict should be guilty. If you believe he did not thus sell, or have a reasonable doubt whether he did or not, your verdict will be not guilty.”
    The jury returned a verdict of “ Gruilty,” when defendant took this writ, among his assignments of error being the answer to the above point and the foregoing portions of the charge embraced in brackets.

      Greorge JST. Corson and Greorge W. Bush, for plaintiff in error.
    —We admit that the best evidence of what is the law is what the court declares it to be, but we insist that the jury are the ultimate judges of the law and the facts in every criminal case, and this court has so decided since the adoption of the new constitution, in Hutchinson v. Commonwealth, 1 Norris 478.
    The day on which elections are required to be held is from 7 o’clock a. M. to 7 o’clock p. m. No man can vote before or after that hour. No other portion of the twenty-four hours was election day, and therefore no law was violated by the defendant.

      J. Wright Apple, for the Commonwealth.
   Chief Justice Sharswood

delivered the opinion of the court, May 5th 1879.

None of the specifications of error are sustained except the fourth and ninth — the refusal of the court to charge as requested in the third point — and the instruction in the charge on the same subject. We have no doubt that the court were right that the word “ day,” as used in the eleventh section of the Act of April 12th 1875, Pamph. L. 42, includes the whole twenty-four hours of the day upon which an election is held.

We are of opinion that the learned judge committed an error in declining to affirm the defendant’s third point, that the jury in the case were judges of the law and the facts. He admits that the law was as stated in the point until the Constitution of 1878, and the legislation in pursuance of it, gave the defendant in criminal cases a writ of error to the Supreme Court. -We cannot agree that in consequence of these provisions the reason which led to the adoption of the doctrine ceased — and that it has ceased therefore to be the rule.

I do not propose an elaborate examination of the question. I find it done to my hand in a very learned and exhaustive opinion of Mr. Justice Hall, of the Supreme Court of Vermont, in the State v. Croteau, 23 Vt. 14, who traces the doctrine historically, and cites and comments upon all the cases, both English and American. There is a great variety of opinion in the courts of the United States and of the several states. While all concede that under the provisions of the Bill of Rights no man shall be twice put in jeopardy of life or limb' for the same offence, that when the jury find in favor of the prisoner a verdict of not guilty it is final, it not being in the power of the court to grant a new trial on the motion of the Commonwealth and against the prisoner’s consent, or of any higher court to reverse the judgment — it has been strongly contended that though the jury have the power they have not the right to give a verdict contrary to the instruction of the court upon the law; in other words that to do so would be a breach of their duty and a violation of their oath. The distinction between power and right, whatever may be its value in ethics, in law is very shadowy and unsubstantial. He who has legal power to do anything has the legal right. No court should give a binding instruction to a jury which they are poAverless to enforce by granting a neAV trial if it should be disregarded. They may present to them the ohyious considerations which should induce them to receive and $¡11oav their instruction, but beyond this they have no right to go. The argument in favor of their taking the laAv from the court is addressed very properly ad verecundiam. The court is appointed to instruct them and their opinion is the best evidence of Avhat the law is. For my part I consider the folloAving passage from the charge of Mr. Justice Baldwin in the United States v. Wilson, BaldAvin 99, as a model to be followed by other judges when called on to instruct the jury upon the subject. “ We have thus stated to you the law of this ease under the solemn duties and obligations imposed on us, under the clear conviction that in doing so we have presented to you the true test by which you will apply the evidence to the case; but you will distinctly understand that you are the judges both of the law and fact in a criminal case, and are not bound by the opinion of the court; you may judge for yourselves, and if you should feel it your duty to differ from us, you must find your verdict accordingly. At the same time it is our duty to say, that it is in perfect accordance with the spirit of our legal institutions that courts should decide questions of law and the juries of fact; the nature of the tribunal naturally leads to this division of duties, and it is better for the sake of public justice that it should be so; when the law is settled by a court there is more certainty than when done by a jury ; it will be better known and more respected in public opinion. But if you are prepared to say that the law is different from what you have heard from us, you are in the exercise of a constitutional right to do so. We have only one other remark to make on this subject: by taking the law as given by the court you incur no moral responsibility; in making a rule of your own there may be some danger of a mistake.”

No one acquainted with the life of the founder of this Commonwealth can entertain any doubt of his opinion or that of his friends and followers. In 1670, William Penn with George Meade, was tried under an indictment for seditiously preaching to a crowd in Grace Church street, before the Recorder of London, who charged the jury that the court was the sole judge of the question of sedition, and that all they had to do was to find whether the defendants had preached or not. As this was not denied, it was a binding instruction to find for the crown. The jury, however, acquitted the prisoners, and the court, considering it as a contempt, set a fine of forty marks on each of the jurors. Edward Bushel, one of them, refused to pay the fine, and being arrested, sued out a writ of habeas corpus before Lord Chief Justice Vaughan, who, without hesitation, discharged him from his illegal and arbitrary imprisonment : Vaughan’s Rep. 185. In 1735, on the trial of John Peter Zenger, for a libel against the government, before Chief Justice DeLancey, of New York, Andrew Hamilton, of Pennsylvania, certainly the foremost lawyer of the colonies, in a forensic effort in defence of the prisoner, equal to that of Erskine afterwards, in' the case of the Dean of St. Asaph, not only took the ground that the jury had a right to say whether the publication was a libel, but added in the most emphatic language, “ I know that they (the jury) have the right, beyond all doubt, to determine both the law and the fact; and when they do not doubt of the law they ought to do so :” 17 State Trials 675. The jury in that case, contrary to the charge of the court, returned a verdict of not guilty. The corporation of the city of New York passed a vote of thanks to Mr. Hamilton for .his able and eloquent defence of “ the rights of mankind and of the liberty of the press,” and the freedom of the city was presented to him in a gold box. When Lord Mansfield and his associates, in King v. Woodfall, 5 Burr. 2661, and King v. Shipley, 3 T. R. 428 n., undertook to enforce a similar doctrine in England, Parliament, by a declaratory statute (Mr. Fox’s bill), 32 Geo. 3, chap. 60, settled the law to be that it should be competent for the jury in all cases of indictment or information for libel, to give .a verdict of guilty or not guilty upon the whole matter put in issue, but that the court should, according to their discretion, give their opinion and direction in like manner as in other criminal cases. It was in view of this controversy that the framers of. the constitution of 1790, in art. 9,.sect. 7, expressly declared “that in all indictments for libel, the jury shall have a right to determine the law and the fact, under the direction of the court, as in other cases.”

In the judicial system of this Commonwealth, from the earliest period to the present time, the tribunals invested' with criminal jurisdiction, with few exceptions, have been composed of a majority of judges not required to be learned in the law. That this majority can overrule the president upon questions of law has never been doubted. And there is more than one ease reported in our books in which they have done so and been sustained by this court. If the doctrine now contended for be sound the jury in a criminal case are absolutely bound by the opinion of the two associate judges, though contrary to their own clear conviction and that of the president.

The power of the jury to judge of the law in a criminal case is one of the most valuable securities guaranteed by the Bill of Rights. Judges may still be partial and oppressive, as well from political as personal prejudice, and when a jury are satisfied of such prejudice, it is not only their right but their duty to interpose the shield of their protection to the accused. It is as important in a republican as any other form of government, that, to use the language of the constitution of 1776, “in all prosecutions for criminal offences,” a man should have a right “ to a speedy public trial by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty.” The provision of the constitution of 1873, that “in all cases of felonious homicide and in such other criminal cases as may be provided for by law, the accused, after conviction and sentence, may remove the indictment, record and all proceedings to the Supreme Court for review.” Art. 5, sect. 24, is evidently a very inadequate substitute for the constitutional guarantee expressly declared and re-affirmed in the same instrument: art. 1, sects. 6, 7, 9.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Gordinier’s Appeal.
    The defendant in an action of ejectment was, by the terms of tne verdict, to hold the land in dispute upon certain conditions with which he failed to comply. The plaintiff had judgment entered and issued a writ of habere facias possessionem. Subsequently the court granted a rule to show cause why plaintiff should not be enjoined from issuing said writ, which rule was discharged. The defendant afterwards filed a bill in equity to enjoin plaintiff from proceeding with said writ, the grounds for relief being substantially those on which the rule to show cause was obtained. Held, that the question was res adjudícala, and the injunction was properly refused.
    March 20th 1879.
    -Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Wyoming county: Of January Term 1879, No. 63. In equity.
    Bill in equity filed by Andrew Gordinier against I. W. Billings, to restrain the latter from issuing a writ of habere facias possessionem.

    Andrew Gordinier, the defendant in an action of ejectment, was, by the terms of the verdict, to hold the land in dispute, upon condition that he would file in the office of the prothonotary, on or before April 1st 1873, a title to the plaintiff for certain land described, and pay the costs. He failed to comply with the conditions within the time mentioned. The plaintiff immediately had judgment entered, and issued a writ of habere facias possessionem. The day after the time prescribed in the verdict the defendant filed a deed for the plaintiff and paid the costs; and one day later made application to a judge at chambers, and obtained a stay of the writ; also, at the ensuing term of the court, obtained a rule to show cause why the said writ should not he set aside. Soon after, and at the same term of court, the defendant filed a fuller affidavit, and on motion of his counsel the court granted a rule to show cause why the plaintiff should not be enjoined from issuing a writ of habere facias possessionem, the defendant alleging he had substantially complied with the verdict. Depositions were taken on both sides, a hearing had, and rules discharged July 25th 1873 by the court, and his honor, Judge Elwell, filed a written opinion.
    On July 8th 1875, Andrew Gordinier filed his bill in equity, alleging substantially, but more at large, the grounds for relief set forth in his affidavit on which he obtained his rule to show cause as aforesaid. A preliminary injunction issued and the case was referred to a master, Felix Ansart, Esq., who reported in favor of dissolving the injunction and dismissing the bill, on the ground that the question raised was res adjudicata. The court, Ingham, P. J., sustained the report and entered a decree accordingly, in an opinion, saying:
    “ It is certainly a very great hardship on Andrew Gordinier to lose his land and pay the costs; but courts of equity must carry out the clear provisions of statutes, and conform to the well-defined lines of common law, although it may be in some cases that individuals suffer hardships thereby. This is because law is a rule of conduct, and to vary strict rules to relieve all the cases of ignorance, negligence and misfortune would destroy law as a rule and substitute therefor the opinions of judges in every individual case, which experience has proved leads to greater injustice than the most rigid adherence to the law. To provide remedies for cases which the great grooves of common-law actions do not reach, to furnish relief in eases of fraud, accident and mistake, and some other cases, our statutes, have invested certain courts with equity powers. While this power is to some extent flexible in its nature, and adapted to establish justice in many cases, it is far from being a discretionary power. It has bounds as clearly defined as the bounds of common law actions, and the court is equally under obligations to cohform to former decisions in equity as at law. When Andrew Gordinier filed his affidavit and moved for a rule to show cause why the plaintiff should not be enjoined from issuing a habere facias possessionem, he appealed to the equity powers of the court and he prayed for the same measure of relief that he asks for now. It is true he did not proceed by bill, but he did proceed in a form in common practice, and the court, at that time, and in that form had as ample power to do equity as we have now. In Stephens.?;. Stephens, 1 Phila. R. 108, Lowrie, J., says: ‘ Chancery grants relief by injunction to stay proceedings where it is shown that a judgment is satisfied or was procured by fraud; or where it is used to enforce payment of a penalty; or where it is tainted with anything contrary to public policy ; if the defendant had no chance of making his defence at law ; or whenever by fraud, accident, mistake or otherwise the plaintiff has an unfair advantage which would make the court an instrument of injustice; and in these cases wre grant relief much more simply and beautifully on motion by ‘the court laying its hands upon the action and preventing its execution, if in equity the party is entitled to relief.’
    “ Eveii before the Acts of Assembly conferring separate equity jurisdiction upon the courts, the determination of the lower courts upon motion for summary relief upon purely equitable grounds, were considered as matters of discretion not subject to review:’ Gordinier v. Billings, 27 P. F. Smith 501, and see cases there cited. Justice Si-iarswood says: ‘ Nor is the defendant in the position of the plaintiff in error without a form of reme'dy which will enable him regularly to obtain the decision of the court of last resort. * * * If the grounds of his defence be purely equitable, and such as would entitle him to an injunction in a court of chancery, then upon bill filed and proceedings thereon he will be entitled to an appeal to the Supreme Court.’

      “ We do not understand this to mean that when there has been a motion on equitable grounds for an injunction which has been fully heard, and refused, that afterwards a bill in equity will be entertained on the same grounds. It seems to us to mean that the defendant had a choice of remedies, by motion or bill; if he had chosen the latter he could have had an appeal to the Supreme Court. If a party may try his chances on motion and, and if he fails sustain a bill afterwards, it tends to multiplicity of actions; for that is the course parties will be likely to pursue. Thus a court of competent jurisdiction will have to hear the same matter twice ; first deciding ‘ a matter which rests in the sound discretion of the court below’ (3 W. & S. 91), and afterwards hear it again, to give an opportunity for review in the Supreme Court.
    “ That the judgment or decree of a court of justice upon a legal or equitable issue within its jurisdiction, is binding and conclusive upon all other courts of concurrent power, is a rule of law founded on the soundest policy, and we are of opinion that we cannot grant the injunction prayed for without violating this rule.”
    From this decree of the court Gordinier took this appeal.

      W. H. ¿f O. A. Little, and Sittser ¿¡- Harding, for appellant.—
    Courts of equity have power to restrain proceedings at law, and the jurisdiction was here properly invoked: Gross et al. v. Leber, 11 Wright 520: Cochrane v. Eldridge, 13 Id. 365; Webster v. Webster, 3 P. F. Smith 161; Riffles’s Appeal, 3 Brews. 94; Gordinier v. Billings, 27 P. F. Smith 498; Quinn’s Appeal, 5 Norris 447.

      P. H. Little, for appellee.
    The master reported that the same ground of controversy was litigated between the same parties under a rule to show cause, decided by the proper court, and that such decision still remains of record, unreversed. That the court had jurisdiction in that form has not been questioned. If it had jurisdiction it follows that its decision was final unless reversed, and this whether the right of review in a court of error existed or not: Canaan v. Turnpike Co., 1 Conn. 7; McPherson v. Cunliff, 11 S. & R. 437 ; Blount v. Darrach, 14 Id. 184, n.
    Nor does Quinn’s Appeal hold otherwise. There the claimed pre-adjudication was simply a refusal to open the judgment, leaving to the party such other remedy as might be open to him. If the rule to open in that case had been made absolute, that would have determined nothing. The question would still have been an open one until further tested.
   The judgment of the Supreme Court was entered May 5th 1879.

Per Curiam.

We affirm this decree upon the opinion of the learned president of the court below.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Pur Curiam.

text:
    Gillett v. Ball.
    Possession of a note by an agent for collection is the possession of his principal to entitle him to maintain trespass for forcibly taking it from the agent.
    Where a note was obtained by duress, the drawer is not precluded from setting that up as a defence, because he retains an indemnity from a liability for which the note was given.
    In error from the Common Pleas of Bradford.

      July

    The plaintiff’s evidence showed that his agent had called on the defendant to demand payment of a note, whereupon the defendant seized the paper, and refused to deliver it up. The form of the action did not appear: the plea was, not guilty. The defendant proved the note was given under duress, in settlement of a claim for getting plaintiff’s daughter with child. It also appeared that the defendant held an indemnity from the plaintiff against the liability for the support of the child.
    The court was of opinion that the possession of the agent would support an action by the principal, and that the defendant retaining the indemnity, was estopped from setting up as a defence, the duress in obtaining the note.

      Mereer, for plaintiff in error.

      Willistonf contó.
   Pur Curiam.

The note, being in the hands of an agent for collection, when it was forcibly seized by the defendant, was virtually in the possession of the plaintiff, to found an action of trespass on it. But whatever the form of the remedy, it is enough that the cause was tried without a declaration in the Common Pleas; and as on the face of the justice’s transcript, it is not said whether the action was trespass or case, we are at liberty to treat it as the one or the other, according to the circumstances disclosed by the evidence.

The remaining assignments of errors are the same in substance. It is a part of the case, that the note had been extorted by unlawful arrest and detention of the person, as compensation for getting the plaintiff’s daughter with child; and the court charged that the duress would not avail the defendant while he retained in his possession a written contract of indemnity against liability to support the child. Suppose the action were founded on the note, not on the spoliation of it; and the one case would be just as strong as the other — would the defendant be precluded from showing the duress because he held a guaranty, which would fall dead with the note of which it was the consideration ? Nothing is more true than that he could not enforce the one, and resist the other; and the want of delivering up the guaranty before it was exploded by a verdict against the plaintiff for the note, ought not to have estopped the defendant from showing the truth.

Judgment reversed, and a venire de novo awarded.


author: Gibson, C. J.

text:
    Schrader v. Decker.
    The acknowledgment of a deed by husband and wife, for the wife’s land, may be shown to have been obtained by fraud and duress of the wife, and thus avoided as to volunteers or purchasers with notice: aliter as to bond fide purchasers without notice.
    A deed by an infant feme covert regularly acknowledged, though dated after she came of age, is void.
    In error from the Common Pleas of Bradford (special court).

      July —. The plaintiff in this ejectment showed title in Rebecca Schrader, and a conveyance from her in 1844. In 1841, she had been divorced from her husband. The defendants set up two conveyances of the land from Rebecca Schrader and her husband: one dated Feb. IT, 1810, to Means, and the other dated Jan. 16, 1811; and proved that as to part of the land, some of the defendants were purchasers for value. These deeds contained certificates of acknowledgment before a justice of the peace, the particulars of which were not on the record. The plaintiffs then offered to prove that the first deed was in fact executed while Mrs. Schrader was an infant, though dated after she attained full age. That the second deed was executed and acknowledged by her when in child-bed. That the consideration actually passed was worthless, and that the grantee was a tavern-keeper, who had supplied her husband with liquor, &c. That the deed and certificate were prepared and brought to the house, and that her husband and two others went into her chamber, where she was confined to her bed, ánd endeavoured to persuade her to execute it, but she at first refused. After two hours passed in this manner, and the grantee representing that her husband would be able to redeem the land, and he promising to do so, she consented, and the justice was then called in, and signed the acknowledgment. The only question asked by him was whether the signature was hers, and if she acknowledged that deed — at which time her husband was present.
    The evidence, so far as it respected the second deed, was rejected, and this was the error assigned.

      Bancroft and Case, for plaintiff in error,
    cited 5 S. R. 523, 289; 3 Yeat. 471; 1 Dall. 11, 17; 2 Barr, 341; 2 Whart. 246; 1 Barr, 470; 4 John, 161; 20 Ib. 477; 12 Ib. 468; 1 Ib. 419, 498; 2 Ashm. 454; 7 S. & R. 170; 2 Wend. 308; 2 John. 230.

      Blwell and Overton, contra,
    9 S. & R. 269; 3 Wh. 457; 2 W. & S. 314.

      July 17.
   Gibson, C. J.

There was not even a plausible objection to the evidence proposed, except the supposed impolicy of allowing the certificate of a wife’s separate examination to be falsified by parol evidence. Such evidence is undoubtedly attended with a greater or less degree of risk in every case; but it is indispensable to the detection of fraud, even in a record against which the law allows of no direct averment. Our statutory provision for a wife’s conveyance by joinder with her husband, and acknowledgment on separate examination, is a substitute for a fine, by which alone the common law allowed her to part with her land; and it is true, as we read it in Sheppard’s Touchstone, p. 9, that “ if there be any woman that hath a husband (and) that doth join with her husband in the conveyance, the judges or commissioners must take care that they do examine her whether she be willing, and do part with her right in the land willingly or by compulsion of her husband ; for albeit she may be made to do it by compulsion of her husband, yet hath she no way to relieve herself from it when it is done.” But it is said in 1 Madd. Ch. 266, that if fraud were practised, equity would relieve against it; which is certainly true, for no separate examination can guard against that. The principle is no more than the rudimental one, that fraud vitiates every assurance whether by matter of record, or in pais; and even had the conveyance in this instance been by fine, it would have been open to 'impeachment on that ground. But as the equity side of our courts of law is not broad enough to admit of relief by bill, we are compelled to give effect to the principle by pleading or evidence, as the court below ought to have done. But we would deprive married women of all substantial protection, did we give to the separate examination of a judge, or a justice of the peace, the conclusive effect of an examination by commissioners to levy a fine, which is much more private, careful, and searching. Every one conversant with the subject, knows the inutility of a separate examination under our statute, even by the most careful, and how often the form of it is hurried over almost in the presence of the husband, or, as in the case before us, dispensed with altogether. Even where the magistrate is too conscientious to be satisfied with less than full and unreluctant acquiescence, the husband may take her to a less scrupulous one. The necessities of justice therefore demand that the transaction be open to objection, not only for fraud, but concealed duress; and the case presented is a rank compound of both. The deed for a part of the property, being executed while the wife was an infant, is absolutely void; and the deed for the residue is open to objections as decisive. It was given to a tavern-keeper, partly in payment of a profligate husband’s debt, contracted in a course of drunkenness and debauchery; and it was thus procured: Means, the grantee, attended by his wife, a man called Dininger, who had no ]p>per concern with the business, and an inexperienced justice piclfftd up by the way, repaired to the house of the husband, while the wife was in the throes of child-birth. Means, his wife, and Dininger, entered the sick woman’s chamber, and met, in the first instance, with the repulse they had reason to expect. It was not till she had been badgered during two hours, and worn out by the importunity of her husband, as well as deceived with false assurances by the rest of the party, of her husband’s right and ability to redeem the land, that they worked her to their will. The justice was then called in; and having barely asked her in the presence of her husband, whether the instrument she had executed was her deed, signed the certificate which had been brought along for the occasion. In addition, the land was of much greater value than the price which was paid for it in worthless accounts and charges. If these circumstances are proved, particularly the crisis selected for the transaction, the instruments employed to bend her to their purpose, and the deception effected by their false assurances, they will show the existence of a conspiracy to strip her of her property, by force or fraud, and the jury will have no moré to do than to find for the plaintiff all the land which had not been paid for to Means, or his voluntary grantee, and all that may have been paid for with knowledge of the fraud. To do less, would disgrace the administration of justice.

Judgment reversed, and a venire de novo awarded.


text:
    Ross’s Estate.
    A lien-creditor is not excluded from a fund, by reason of neglecting to present it to the auditor before the report is filed; if application be made before final decree.
    Appeal from the Orphans’ Court of Wyoming.

      July 11.
    The administrators of Ross having sold certain real estate, the distribution of the proceeds was referred to an auditor, who made a report. This was sent back, and pending the second reference, a claim was made on a judgment and mortgage against Ross, which had not been presented to the auditor, and were entered in Luzerne. The auditor rejected them, but the court admitted the claim — this was the error assigned.

      Wright, for appellant.

      Fuller, contrd.
   Per Curiam.

It is not disputed that the mortgage and judgment of Slocum was the first lien on the fund; but it is contended that it lost its priority by having been presented too late. It is never too late, however, to do justice by correcting a defect before final judgment and decree; and even afterwards, the proceeding may be unravelled at the discretion of the court. A mere slip, which may be retrieved, must not be allowed to work a forfeiture of right.

Decree affirmed.


author: Per, Curiam.

text:
    Greenough’s Appeal.
    A preferred debt, tliougb not presented for payment within a year from the death of the debtor, is entitled to be paid in full, out of assets in the hands of the administrator of an insolvent.
    A claim for money, payable as rent, by a co-tenant, for the privilege of talcing coal out of a mine at so much per cubic yard, is a preferred debt under the act.
    Appeal from the Orphans’ Court of Luzerne.

      July 11.
    The administratrix of Thomas had a sum of money in her hands for distribution among the creditors of the estate, which was insolvent. Thomas died in 1844; administration was granted in 1845, and the usual advertisements were made. The appellants’ claim was for rent that accrued in the lifetime of Thomas, under an agreement, “that Thomas may have the privilege of taking coal out of the P. mine, he paying to the respective owners thereof (of whom Thomas was one) their respective proportions of the sum of twenty-five cents per cubic yard of coal so taken out, as rent for the said privilege.” This was determinable on one month’s notice by either party, and “ the rent” was to be paid quarterly.
    The claim for the rent was not presented to the administratrix until 1847, on which ground the auditor rejected it. But the court allowed the lessor a fro rata dividend with the other creditors, considering the claim as not preferred within the act of Assembly.

      Harrison Wright, for appellant.
    McOlintooh, contó.
   Per, Curiam.

Debts which do not abate fro rata, when payment is to be made out of the assets of an insolvent estate, are not within the spirit of the act which requires presentation for settlement within the year. The question then is, whether the appellants’ claim was a privileged one; and that depends on the nature of their contract with the decedent. It was the grant of a right to mine coal for so much the ton; and the redditus was consequently a certain rent for which a distress might have been made. In substance, it was as distinctly a lease as that in Offerman v. Starr; nor is that case distinguishable from this in any respect, except that in the one the lease Ayas to a co-tenant, and in the other it Ayas to a stranger. But it is certain that one joint tenant or tenant in common may lease his part to his felloAy. The whole claim therefore ought to have been alloAyed.

Decree corrected accordingly.


author: Burnside, J.

text:
    Drumheller v. Mumaw.
    AYhere the record shows that the -writ was signed by a clerk for the prothonotary, the court is bound to take notice that he was the deputy, and had authority to administer the oath on appeal from an award.
    In error from the Common Pleas of Luzerne.

      July 11. The facts are sufficiently stated in the opinion of this court.
    MoQlintoeh, for plaintiff in error.

      Wright and Butter, contrh,
    cited Shoute v. Stockton, 7 W. 526.

      July 17.
   Burnside, J.

The Court of Common Pleas dismissed the appeal, because “ the oath upon Avhich the appeal Ayas entered, appears by the record (the only evidence brought before us) to have been taken before A. Bedford, prothonotary, by II. Fell, but no authority to administer the oath is in any place stated. Mr. Fell does not call himself clerk or deputy, or state in ivhat capacity, or even where he administered the oath. No evidence is offered to show that he was at any time acting as clerk or deputy, or indeed had anything to do with the Prothonotary’s Office; and without some eA'idence on this subject, we cannot make this inference from the record.”

It was determined (in Reigart v. McGrath, 16 S. & R. 65), that the oath on the appeal may be administered by the deputy of the prothonotary, in virtue of a general parol delegation. We are at a loss to conceive what more evidence the court wanted than the record in this case exhibited. It shoAved that on the 1st May, 1845, the summons issued under the seal of the court, A. Bedford, Prothonotary, by Hugh Fell. The next day the plaintiff- obtained a rule to take depositions under the seal of the court — A. Bedford, Prothonotary, by Hugh Fell. The record further showed that on the 19th Sept., 1845, rule on the part of the plaintiff to choose arbitrators under the seal of the court — A. Bedford, Prothonotary, by Hugh Fell. 13th of Oct., 1845, rule of arbitration under the seal of the court — A. Bedford, Prothonotary, by Hugh Fell. 21st Nov., 1845, award of arbitrators filed in favour of plaintiff, for the, sum of $2,644.13, costs $35.05. Same day, judgment. The 6th Dec. the defendant appealed, and filed an affidavit, signed and sworn and subscribed before me, A. Bedford, Prothonotary, by H. Fell. The affidavit is on record. But it is contended, that the court was not bound to look at the record in the case, unless their attention was particularly called to it by counsel. I hold it to be the duty of the court to see that law and justice are duly administered: and if necessary, to watch over their officers, to look into the proceedings in the action, and to have a view of the whole case, before they make any important order or decree in the ease. What then does the record show ? That Fell issued the summons under the seal of the court, entered a rule to refer to choose arbitrators, issued the rule of reference under the seal of the court, and when the award came to the office, entered a judgment for the plaintiff. It would seem he was in the office for all purposes except administering the oath to obtain an appeal — all his acts in the name of the prothonotary were the acts of that officer, and the oath for the appeal was as much his act as the issuing of the writ, entering the rule of reference, filing the award, and entering judgment. The court had ample evidence in this case, if they chose to look at it, that Fell was the deputy and clerk in the office. It was their duty to look at it, before they deprived the defendant of the right of a trial by jury, and dismissed his appeal.

The order of the court, dismissing the appeal, reversed, and the appeal restored.


text:
    Lackawaxen Turnpike Co. v. The Commonwealth.
    Where the form of proceedings to compel a turnpike company to keep its road in repair, is prescribed in the act of incorporation, by reference to another act of Assembly — they are not affected by a subsequent repeal of the act referred to. Nor by an alteration made in the form of proceedings by an act of Assembly, passed after judgment obtained in the proceedings under the old form.
    Certiorari to Wayne county.

      July 12.
    This was a proceeding by an inquest, before a justice of the peace, to inquire whether the road of the Turnpike Company, defendants, was out of repair. The only material question was, ■whether the form of proceeding had been altered by act of Assembly.
    The act of 1804, incorporating the Coshecton Turnpike Company, directed the form of proceedings in such a case.
    The act of 1828, p. 17, incorporating the defendants, made them liable to the duties and penalties provided in the act of 1804, by a reference thereto. The act of 1830, p. 319, repealed the act of 1804, and directed a new form for proceeding against the Coshecton Company.
    The present proceeding was perfected by the inquisition in December, 1847. A certiorari was then issued. The act of 1848, p. 437, repealed the act of 1828, and supplied a new form of proceeding.
    The question was, whether the proceedings were coram nonjudiee.

    Wheeler, for plaintiff in error.
    Gollins, contó.
   Per Curiam.

The proceedings in this case are a virtual compliance with the act of incorporation, which was not affected by subsequent alterations of other acts which had become part of it by reference. The whole road is within the county of Wayne, and the parts of it out of repair are sufficiently specified.

Proceedings affirmed.


author: Bell, J.

text:
    Talmage et al. v. Burlingame and Irons.
    Where A. becomes surety for B., without Ms knowledge or request, B. is not liable over to A. for the costs of an action by the creditor against A., and B. is therefore a competent witness for A., in an action by the creditor on the contract. But if one becomes surety for another with the assent or knowledge of the creditor, the creditor is bound by all the rules respecting' sureties, though the principal is not so bound for want of privity of contract, unless it be through the medium of a subrogation to the security of the creditor.
    Where judgment is recovered against two jointly, and it is opened as to one who is let into a defence, the other is a competent witness for him, for though a party to the record, Ms liability is determined, and the proceeding is, in effect, a feigned collateral issue to test the liability of the other party.
    In error from the Common Pleas of McKean.

      July 12.
    Burlingame and Irons executed a note in favour of plaintiffs, in the following form: — “I promise to pay, &c.,” with warrant of attorney, under which judgment was entered against them jointly. This judgment was revived by scire facias, when Irons filed an affidavit, on which the court Opened the judgment against him, and let him into a defence.
    On the trial of this cause, the defendant proved that the attorney of the plaintiffs held a claim against one Freeman, who offered to liquidate it, by giving a note signed by Burlingame, whom Freeman represented to be his debtor. The attorney refused to accept this without additional security, but he agreed to accept the joint note of Burlingame and Irons. The attorney communicated the arrangement to his principals, without stating the particulars, and they approved of it, and discharged Freeman.
    The defendant then proved by Burlingame, under exception as to competency, that he was a debtor of Freeman, and had refused to give any security. That when he signed the note, Irons’ name was not on it, nor did he know of this signature for some time afterwards; that he never procured the name, nor saw the note with the name on it.
    He then proved by the same witness, that a levy had been made by plaintiffs on Burlingame’s personal property, sufficient to satisfy the debt; and that the property was released, and six months’ time given by the attorney to Burlingame, on receiving his judgment-note which was entered up, but had never been paid.
    McCalmont, P. J., instructed the jury, that if Irons was but a surety of Burlingame, and the attorney knew it, and released the goods of Burlingame from the execution, Irons’ liability would be discharged to the extent of the value of the goods. And that if a stay of execution for a definite time was given, on receiving the note of Burlingame, the surety was discharged.
    The admission of the witness, and the charge, were the errors relied on.

      White, for plaintiff in error.
    If Irons was a surety, then Burlingame was liable over to him not only for the amount of the judgment but for the costs, and hence his interest preponderated, and he was incompetent: 9 S. & R. 236 ; 10 Johns. 70; 3 W. & S. 557; 9 W. 144; 1 Binn. 444; 3 Barr, 154. He was moreover a party to the record, and hence was incompetent, though not interested: Wolf v. Fink, 1 Barr, 440; 3 Barr, 360. But he was not a surety, but a principal debtor, and hence the release of the execution, &c., did not discharge Irons: 2 Barr, 416.

      Johnson, contra.
    If Burlingame was primarily liable to the payment of the debt, Irons was his surety, and entitled to the benefit of the doctrine: Theo., Prin. and Su. 123, 129, 130. Nor is it material that a judgment has been entered against him: 7 W. & S. 335.
   Bell, J.

It is a trite rule in equity that if a creditor has in his hands or power the means of payment, and voluntarily relinquishes it, or if he agree, for consideration, to give to the principal debtor further credit for a definite time, without the assent of the surety, the latter is discharged, though judgments may have been recovered against both. Of relief given upon the first of these grounds, The Commonwealth v. Miller, 8 S. & R. 452, is an example and illustration, and The Manufacturers’ and Mechanics’ Bank v. The Bank of Pennsylvania, 7 W. & S. 335, furnishes an instance of the second. They are alluded to not because the proposition at this time of day requires the aid of citations to compel assent to it, but for the reason that both these cases are, in feature, much like the present. On the trial, the defendant furnished evidence that both these contingencies had occurred, through the agency of the plaintiff’s attorney. His authoi’ity to enter into these arrangements is not questioned, and if it were, there is abundant proof the plaintiffs recognised and ratified his acts. These matters of fact were fairly referred by the court to the jury as proper for their decision. The instructions which accompanied this reference are acknowledged to be correct, provided Irons can, in legal contemplation, be regarded as the surety of Burlingame in their relations to the creditor. As between themselves, and for the purpose of charging Burlingame, Irons certainly cannot be so esteemed. As the case is disclosed by the evidence, he stood, in respect to the principal debtors, a mere volunteer, who had undertaken to pay the debt of another without his request, and under no circumstances of compulsion, moral or legal. The undertaking was without privity with, and imposed no additional obligation upon Burlingame. Had Irons, therefore, been compelled to pay the debt in discharge of his assumption, he could not have called on the real debtor to reimburse him, except perhaps in equity, through the medium of the original security, for no man is permitted to thrust -himself, unbidden, into a relation which may impose a new, or change an existing liability of another, so far, at least, as his rights are involved. But the relative position of Irons and the plaintiffs, creditors of Burlingame, is very different. He became liable to answer to them before his engagement. The absence of a request by the original debtor inducing the undertaking, docs not absolve Mm from it, for notMng is clearer than that a stranger may, for a consideration, bind Mmself to pay the debt of another without his privity or knowledge. In the present case, a sufficient consideration is to be found in the assent of the creditors to accept the guarantied note in discharge of Freeman’s indebtedness to them. Irons, then, by affixing his signature to the instrument, became a debtor either as principal or surety. One of the positions he must occupy. He could not be a principal debtor, for he never agreed to become so, neither did he ever derive the slightest benefit from the transaction, nor was he in any way bound for the original debts out of which it arose. He must then be a surety, in respect of the creditors. It is clear, under the evidence, they so accepted him, by their agent, Mr. Niles. Why should they now be permitted to repudiate that relation, and insist upon treating Mm as a principal debtor ? No good reason has been suggested, nor can there be. The only fact existing to differ this from the ordinary case, is the non-request of Burlingame. But there is nothing in the contract of suretyship that can ascribe to this omission the effect of turning Irons into a principal debtor, contrary to Ms intent. That contract has place where one person, to obtain some trust, confidence or credit for another^ engages to be answerable for Mm: Theo. on Prin. and Su. 1. What is there to prevent this undertaking independently of the principal debtor? Certainly nothing in the nature of the engagement itself. The truth is, the contract of the surety is with the creditor and not with the debtor. It is in fact an every-day practice to assume the responsibility of insuring the faithful discharge of the' obligations of others whom the surety has never seen. The most familiar instances are furnished by endorsements of negotiable instruments and guaranty of bonds and other dioses in action, assigned or transferred by the guarantors. No one has ever thought of calling the validity of these contracts into question, nor has it ever been doubted that those entering into them are entitled to the advantage of every equity ordinarily attendant upon suretyship. In one case, the defendant cannot be regarded as a mere intruder, for he assumed the liability at the request of a debtor of the plaintiffs, desirous to extinguish his own debt by a transfer of the note in question. But I do not rest the point upon this, for no doubt can exist that one may become a surety at the request of a creditor, provided a con- ' sideration passes. Now a creditor who accepts a surety is bound to notice the nature of Ms engagement and to care for his protection : Bowmaker v. Moore, 7 Price, 223; and this duty the plaintiffs owed to Irons. Whether it was faithfully discharged, was one of the questions fairly submitted, as already said, to the jury.

This brings us to consider the only remaining points in the cause. Was Burlingame competent, as a witness, to prove the facts he testified to ? Generally, a principal debtor is not a good witness for a surety in an action against the latter; not because he is liable to make good the amount that may be recovered against the surety— for in this his interest is in equilibrio, since he is equally liable to the creditor — but that he is also answerable in the event of a recovery, for the costs of the action: Bank v. Walker, 9 S. & R. 236, 237; Smith v. Thorne, 9 W. 144; Davenport v. Freeman, 3 W. & S. 557. It is clear, however, he may be examined to anything tending to exonerate a surety, if he be not liable for costs or is released from the payment of them: Miller v. Stem, 2 Barr, 286. But the original debtor is not liable for these costs unless he stands in the relation of principal to the person sued as surety. Before, therefore, any objection to his competency can be entertained on this ground, it must be shown that this relation exists. In this, however, the plaintiff’s objection fails, for we have seen that, as against Burlingame, Irons cannot claim the vantage-ground of a surety. The exception to him on the score of interest is, therefore, out of the way.

It is further insisted that he is a party to the record, and therefore incompetent as a witness on grounds of public policy. The rule seems to be that a co-defendant cannot testify for his fellow, though not brought in on process, or being so, though his interest in the event has been destroyed pending the action: Parke v. Bird, 3 Barr, 360; Wolf v. Fink, 1 Barr, 440. In the latter case, the defendant offered as a witness had become a certified bankrupt, after an award against him and a co-defendant, from which he did not appeal. It was admitted his interest was gone, but he still remained a party to the record, notwithstanding the judgment against him on the award, for this was liable to be modified or altogether annulled upon the trial of the appeal entered by the other defendant: Ramsey’s Appeal, 4 W. 71. He was thus in the position of one of several defendants sued in an action ex contractu, who suffers judgment to go by default. Yet he cannot be examined as a witness for the others, because the efficiency of the judgment against the party defaulting, depends on the event of the verdict to be rendered on the trial of the issue tendered by the others: Mant v. Mainwaring, 8 Taunt. 139; Brown v. Brown, 4 Taunt. 752; Schermerhorn v. Schermerhorn, 1 Wend. 119; and he, therefore, is still a party interested in the event of the action. But the general doctrine unquestionably is, that when the suit is ended as to one of several defendants, by verdict or otherwise, and he has no direct interest in its event as to the others, he is a competent witness for them, his own fate being, at all events, certain: 1 Greenl. Ev. § 355. This is of constant practice in action tort, where judgment has passed for or against one of several joint trespassers, among whom there is no contribution, for torts being in their nature and legal consequences several as well as joint, distinct judgments may be rendered, and thus one or more of the defendants be disengaged from the record. In actions upon contracts, it is said the rule is generally excluded, for the contract being laid jointly, there must be a joint recovery or none; and though one suffer judgment by default, yet, as I have said, this waits on and abides the final determination of the issue joined. But when the defence pleaded in such an action goes merely to the personal discharge of the party pleading it, as bankruptcy, infancy, coverture and the like, and the plaintiff enters a nolle prosequi as to such party, or a verdict passes for him or her, they are disengaged from the record, and may be called as a witness by the defendants against whom the action proceeds: 1 Greenl. Ev. § 356, and the cases there cited. It has, to be sure, been held the party is not entitled to a previous verdict under such a plea, for the purpose of qualifying him to testify for the others: Raven v. Dunning, 3 Esp. 25; Emmet v. Butler, 7 Taunt. 599; though in a more recent case this was permitted: Bate v. Russell, 1 Mood & M. 332. Indeed, it has been said it is not easy to perceive why this should not be allowed in actions upon contracts as well as in torts, where the defendant pleads matter in personal discharge, sustained by proof not gainsayed by the plaintiff. Another case may arise under our compulsory arbitration system, where a defendant would be disengaged from the record, and thus become competent to testify for the other in a subsequent stage of the cause. It occurred in Wolf v. Eink, where arbitrators, in an action against a principal and two sureties, found an award against the principal and one of the sureties, and in favour of the other, from which the principal debtor appealed. It was said the award and judgment in favour of the surety was good, and from the peculiarity of our system the case might properly proceed on the appeal against the appellant. In that case, I take it, the successful surety was no longer a party to the record, and might have been examined as a witness on the trial of the cause.

If we apply these principles to the question in hand, I think it will be apparent that Burlingame was rightly admitted to testify. Against him judgment had passed, which could in no wise be affected by this proceeding to try the sufficiency of a defence peculiar to Irons. Ilis fate was decided beyond disturbance. He was, therefore, so far as Irons’ defence was concerned, disengaged from the record, or rather he never was a party to it, for, I take it, that under our peculiar system of enforcing judgments entered upon warrant of attorney as to one of several defendants, let in to a defence personal to him, the proceeding is to be regarded as a new action, with which the other defendants have nothing to do. They are not liable for the costs attending it, nor can they be affected by its results. In England, the practice in such cases is to award a collateral issue, and though with us the issue is said to be directed in the cause, it is in the nature of a feigned issue, which embraces only the parties to it. If the verdict be in favour of the defendant on whose application the judgment is opened, it is gone as to him, but remains in fact as to the others. The fact that the names of all the defendants are associated in the original judgment makes no difference, for the legal effect of the proceeding is to sever them for the purposes of the inquiry. To the record made up in the case, but one of the defendants was a party; the other, Burlingame, was an entire stranger. As to him the suit was at an end by the entry of the judgment against him unim peached. He is, therefore, not within the rule that excludes »• party from testifying; and, having no possible interest in the event, we think he was rightly admitted as a witness.

The first bill of exceptions was abandoned.

Judgment affirmed.


text:
    Custer v. Tompkins County Bank.
    Notice to a director of a bank not being an organ of communication with the corporation, is not notice to the corporation, though he was present when the corporate act was done which is sought to be affected by the notice.
    In error from the Common Pleas of-.

      July 12.
    Debt on a promissory note drawn by defendant and endorsed by Custer, Detriek and Reed. The defendant offered to show that the note was made to be discounted for a special purpose, and that before it was discounted, Reed had notice not to use the .note, and that no consideration had been given for it, and that when discounted by plaintiffs, Reed, who was a director of the bank (plaintiffs), was present.
    The rejection of this evidence was assigned for error.

      Collins, for plaintiff in error.
    Notice to a director is notice to the bank, Bank v. Whitehead, 10 W. 397.

      Maxwell, contó.
   Per Curiam.

This cause is ruled by The Bank of Pittsburgh v. Whitehead. The rule laid down there, is, that notice to a corporator is not notice to the corporation, unless he were constituted an organ of communication between it and those who deal with it. The corporator, in this case, was not such an organ, and the evidence was properly rejected.

Judgment affirmed.


author: Coulter, J.

text:
    Spalding v. The Bank of Susquehanna County.
    Reasonable diligence is all that is required in searching for a paper to admit evidence of its contents. And the degree of diligence depends in a great measure on the importance of the lost document.
    The admissions of the president of a bank, who was also its special agent, of his acts done in the course of his agency, are evidence against the bank. Where bank-bills have been received as a collateral security, it lies on the creditor, in a suit against a surety, to show what has been done with them.
    In error from the Common Pleas of Bradford.

      July 13. Assumpsit against the endorser of a note drawn by Clapp; The defendant offered the deposition of Clapp, the drawer, and, to show that he had no interest, offered to prove he had been released before his deposition was taken, but the paper was lost. His attorney proved that when he last saw the instrument, it was in Clapp’s possession, who left the state shortly after the deposition was taken. His books and papers were left and searched by the witness to find this release. The witness had inquired of Clapp’s wife, and received answer, that she had no business papers in her possession; he did not inquire for this particular paper and she was out of the state. A Mr. Satterlee handed the witness some papers; these were examined, but no inquiry was made of Satterlee for the release. It did not appear that Satterlee had any connexions with Clapp since the release was executed.

      The court rejected secondary evidence of the contents of the release, on the ground that sufficient search for the original had not been made, and also rejected the deposition. It appeared that counsel had attended at the examination and made no objection as to competency.
    The defendant further offered to prove by the declarations of the president of the bank (the plaintiff), made eighteen months after the event, that Clapp, the drawer of the note in suit, had deposited $1,000 in Towanda Bank bills with Storm and Morgan, a subsequent endorser of the note, as a collateral security for it. That after-wards, the president of the bank, as agent for it, received the note and collaterals from Storm and Morgan, and claimed the note in his own right, and paid over the collaterals to Clapp, the drawer, without consideration, and without the assent of the defendant.
    Evidence had been previously given that the president, in conjunction with another, were authorized to settle with Storm and Morgan, and that the president was subsequently authorized to take charge of the bank and its effects.
    The court considered these declarations were not made in the course of his duty or business for the bank, and rejected the evidence.
    It appeared that the plaintiff had received a package of “ Towanda paper,” as a collateral on the note, and there was no evidence what had become of it — the court was of opinion this was no defence; that it lay on the defendant to show it had been lost through neglect, or collected, if he desired to avail himself of it.
    Patríele, for plaintiff in error.
    Reasonable diligence is all that is required in the seareh for a lost paper. That will depend on its importance: 4 Bing. 490; 2 Cain. 363; 18 Johns. 60; 1 Hare, 1; 5 Jur. 1007; Harr. Dig. 2877; 6 W. 164; 7 Pet. 100; 6 Binn. 59. In this case the paper was of little consequence, nor could there be any reasonable doubt as to its contents. The declarations of the agent, when acting for the bank, were evidence against it of the amount received, the purposes, and his authority to dispose of it.

      Case, contra.
    There was not a sufficient search made for the ' paper. The president was not acting as the agent of the bank when he made the declarations: he was appointed with another to act, and one of them could not bind the corporation by his acts or declarations.

      July 17.
   Coulter, J.

The first error assigned is the rejection by the court of the deposition of N. Clapp. The deposition was regularly taken, and Clapp was out of the jurisdiction of the court, at least could not be found on diligent inquiry. The ground of rejection was that the witness was interested, being liable to the defendant below for the costs of the suit as maker or drawer of the note on which this suit is brought against Spalding, one of the endorsers. The defendant proved that he had given the drawer, Clapp, a written release, duly executed, before the deposition was taken, and then proved that search was made for the original release, which could not be found, and offered secondary evidence of its contents. The court, however, ruled out the deposition, because sufficient search had not been made for the original, nor adequate evidence of its loss given. The judgment of this court, however, -is that the deposition ought to have been admitted, because the search made for the original release, and the secondary evidence of its contents, were ample. I do not see, for my part, how the defendant could have made a more diligent inquiry. He left no place unexplored where any reasonable probability of its being found existed. As it could not be found among the papers of the witness where they were left by him, the probability is that he may have carried it with him when he left the 'country, especially as a copy of it was found among his papers. It may be observed that this paper was not of primary importance in the cause. The issue did not hang upon it, nor was its production necessary to elucidate the rights or position of the adverse party. The authorities cited at bar clearly show that this circumstance is entitled to no inconsiderable weight. It may be added also, that the plaintiff’s attorney attended when the deposition was taken, made no objection, and cross-examined the witness, from which it may be inferred either that he know a release had been given, or that it was net intended to object to the witness at the trial, and thus take the defendant by surprise.

The second error assigned is, that the court erred in rejecting the written offers of evidence by defendant, numbered 2 and 3.

The evidence in offer No. 2, ought to have been admitted, because it proposed to prove that the acts and declarations of William L. Post were done and made as agent of the Susquehanna* Bank, and whilst he had possession of the note, on which this suit is instituted, and the bills of the Towanda Bank, which he, as agent of the bank, had received as collateral security at the same time that he received the note. The endorser was entitled to the benefit of this collateral security given by the drawer; and good faith required that the holder should not part with it to the prejudice of the endorser without his consent: more especially for the purpose of making new terms with the drawer. The evidence proposed to be given formed in fact part of the res gestee, without which full justice could not be done between the parties. William L. Post, beside his beings the agent, was the president of the bank, the financial head; and these acts and declarations were within the scope of his authority, as an officer, and on that account ought to have been admitted: 2 Hall, 445. In addition to this case cited at bar, may be added the case of the Westmoreland Bank v. Klingensmith, 7 Watts, 523, where the endorser went to the cashier of the bank, and told him the drawer was about to send personal property away, and requested the cashier to issue execution on the judgment which the bank had obtained against the drawer, which the cashier refused to do, and said he would discharge him from his endorsement, and look to the drawer; it was held that this was a good discharge of the endorser.

The evidence covered by offer No. 3 ought to have been admitted, being of the same character as that proposed to be given in No. 2.

The third and last error assigned is, that the court erred in charging the jury that the plaintiff was entitled to recover. It is unnecessary, and would be perhaps out of place, to give any opinion on this assignment of error, as the cause will go back to be tried on a new and different state of facts. But in the very brief charge of the court, they instruct the jury that if the defendant wished to avail himself of the collateral security of the Towanda bills, he was bound to show, that they had been collected by the Susquehanna Bank, or were lost by carelessness; otherwise, the plaintiff was not bound to give any account of them. In this we think there was error. These bills were, I presume, the ordinary bank-bills or notes of the Towanda Bank. Bank-bills, or what is called relief notes, well understood by that name, pass from hand to hand, as money. It does not appear at what discount those bills then were, or whether or not they were current. But they were, doubtless, of some value, or they would not have been received as collateral security, and might have been passed off by the Susquehanna Bank, in which case it would have been impossible for the defendant to have traced them. Indeed, I know of no practicable means by which he could have shown the payment or loss of the bills. But it was very easy for the Susquehanna Bank to give an account of what was done with them. Good faith requires that they should do so: and the law will hold them to it.

Judgment reversed, and a venire de novo awarded.


text:
    Roberts v. Halstead.
    An entry of satisfaction by a mortgagee after he has parted with the obligation secured thereby, will not discharge the security, in favour of a prior purchaser, so far as respects the holder of such obligation.
    And he may sue on an exemplification of the mortgage on which satisfaction is endorsed, and avoid the effect of this endorsement by proving an assignment of the obligation secured thereby, prior to the entry of satisfaction.
    Where several obligations are secured by mortgage, and the dates of their maturity do not appear on the mortgage, it lies on the defendants to prove that all have not matured one year prior to the scire facias issued at the suit of the holder of one of the obligations which had matured at that time.
    In error from the Common Pleas of Wyoming.

      July 13. This was a scire facias on a mortgage by Roberts to Halstead, dated May 12,1837. The mortgage was to secure a debt “unto S. Halstead, his executors, administrators, and assigns, in discharge of six separate obligations by Roberts under his hand,” amounting in the whole to $1,100, and was conditioned to pay the said sum, “ without any fraud or further delay, and with defalcation, deduction, or abatement of taxes.” Plea: nul tiel record, payment, and no lien. The defence was taken by terre tenants.

    On the trial, the plaintiff read an exemplification of this mortgage, in the margin of which was an entry of satisfaction by Halstead, by his attorney, on the 4th July, 1844. He then proved a promissory note without date, drawn by Roberts in favour of Halstead, payable June 1, 1841, and proved that this was one of the notes recited in the mortgage.
    He then, under exception, read the note and the exemplification.
    He then gave evidence that this note was sold in 1839 to the party to whose use this suit was brought in the name of Halstead, the first transferee having noticed that it was secured by the mortgage.
    The defendants offered to show a mortgage on the same lands between the same parties in 1848, and that various payments of taxes had been made under the provisions in the mortgage; but the .evidence was rejected.
    They then proved that the present terre tenants purchased the land after the registry of the mortgage, and before satisfaction entered, and they also proved the authority under which satisfaction was entered on the mortgage.
    The court (Jessup, P. J.) instructed the jury that after Halstead transferred the note, he ceased to have any power to enter satisfaction in prejudice of the claim. As to the objection, that it did not appear that all the claims secured were due a year before suit brought, he said, the defendants should have pleaded that in abatement.

      Harrison Wright, for plaintiff in error.
    (The court told the counsel that he need not argue the first error, as they had held in Frear v. Drinker, at this term, that the plea of nul tiel record to a scire facias sur mortgage was a nullity.) If that plea does not avail us, the admission of the evidence in the first bill raises the same question quite as broadly. There was a most substantial variance between the writ and the copy of the mortgage produced: the latter contained the stipulation respecting deduction for taxes, and upon its face showed satisfaction duly entered long before suit brought; the writ was silent as to both. The variance was a fatal one: 8 Watts, 181; 8 H. S. Digest, 175. The provision as to taxes was inartificially drawn, but it was plainly the intention of the parties to thé mortgage-deed, that the taxes paid by the mortgagor should be deducted; and the reason of the proviso was, that when the mortgage was drawn, a considerable amount of taxes was due on the land by Halstead, but the precise sum could not be ascertained, and it was part of the agreement that these should be paid, and also all that might be levied to the time when the last note fell due, out of the $ 1,100, purchase-money. This accounts for the peculiar stipulation, which we could not show, because we were put back at the very threshold. The court thought it a mistake of the scrivener, and rejected the offer. A stipulation for damages was held binding, Huling v. Drexel, 7 W. 126. This evidence was proper under the plea of payment, because it was in fact a payment pro tanto of the mortgage-moneys, and upon authority : 11 S. & R. 174. But it was not objected to as improper under the pleadings, nor was it rejected for that reason. Under our statute, the party should have proven himself entitled to issue his writ, by evidence of what did not appear on the mortgage, to wit, that the last payment had been due a year: 2 Rawle, 166. The satisfaction was made by the only one having authority, and was an end of the mortgage. Judgment, as is well settled, should have been first taken against those not appearing, before trial and judgment against the others.

      Wright, contó.

      July 5.

   Bell, J.

The scire facias given by the act of Assembly is founded upon the mortgage, and not upon the registry of it. The plea of nul tiel record was, therefore, wholly inapplicable, and might have been treated as a nullity. A judgment upon it was unnecessary, and its rendition does harm to no one. So much was determined at the present sittings, a few days since, and, consequently, the plaintiff abandoned the first error assigned.

The record shows that the exemplification of the mortgage of the 12th of August, 1837, was read without objection. After this, John F. Dupee was called, and proved the note held by the plaintiffs, was one of those recited in the mortgage. The plaintiffs, then, according to the paper-book, offered the mortgage, exemplification, and note,” to which the defendant objected. The objection having been overruled, the plaintiffs read the note in evidence, but not the exemplification of the mortgage, for that had been read before. The exception was urged here solely against the mortgage, on the ground of variance between it and the scire facias. But having been given in evidence without objection, and not read under the exception, it is not applicable to the mortgage. The reception of the note is not called into question.

What was the object of the defendant’s offer, embraced in the second bill of exceptions, or what a mortgage, dated the 26th January, 1848, has to do with the controversy, it is not easy to divine. If the exemplification offered was of the mortgage of August, 1837, before read, it does not show an agreement to defalk from the sum secured by the mortgage, all taxes that might be assessed on the mortgaged premises and paid by the mortgagor or his alienees. Such is asserted to have been the meaning and intent of the parties to the mortgage, but it is by no means apparent on the face of the instrument itself. But were this otherwise, surely notice of the intended defalcation should have been given under the plea put in. Notice was not pretended, and for this reason alone, the evidence offered was rightly rejected.

The beneficial plaintiffs below, became the holders of the note in question before maturity, with notice that payment of it was secured by mortgage. It has not been denied that from the moment they thus became owners of the note, they acquired an equitable interest in the collateral security of the mortgage, pro tanto. The assignment or transfer of each of the obligations” nentioned in the mortgage, is a purchase, for a valuable consideration, of all the securities of the assignor, and of all his remedies: Jackson v. Willard, 4 Johns. 41; Donley v. Hayes, 17 S. & R. 400; 1 Madd. Ch. 435; and this, though the assignee was not aware of the existence of the mortgage, at the time he purchased the note: Betz v. Heebner, 1 Penn. Rep. 280. Pending the interest thus acquired, it was not competent for the mortgagee to cause satisfaction to be entered on the record of the mortgage, to its destruction as a security of the note-holders. The attempt to do so, necessarily failed as a fraud upon the trust created by the transfer of the notes. Had there been a bond fide purchaser of the mortgaged premises, after the entry of the satisfaction, and without notice of the outstanding notes, or, as was the case in Brown v. Simpson, 2 W. 233, were the attending circumstances such as led nobody to lean to the conclusion that the mortgage-moneys had not been paid, a countervailing equity would have sprung up for the protection of the innocent purchaser. But at the time of the contract of sale between Caleb Roberts, the mortgagor, and Daniel Roberts his vendee, the mortgage stood open on the record in full force and vigour. Consequently, the latter took the land subject to it and to all the rights dependent upon it. Whether he afterwards purchased Halstead’s consent to enter satisfaction, in fraud of the outstanding notes, or what were the circumstances that led to the entry, does not appear. The record speaks of a broken contract for the sale of, it is presumed, the mortgaged premises, dated in 1839; but as no copy is given, we are of course ignorant of its contents and stipulations. Whether the existing mortgage was expressly provided for is not shown. Indeed, all we know of its contents is gathered from a remark occurring in the charge of the court, that at the time the contract was made, Daniel paid to Caleb §200 of the purchase-money, and gave a bond and mortgage to secure payment of the balance, §1,800, no part of which is shown to have been paid. So far as appears, then, Daniel, and those coming in after him, stand in the defenceless position of a purchaser with full knowledge of the mortgage as a subsisting lien, who, up to this hour, had not paid his purchase-money. Even supposing him ignorant of the outstanding notes, there is certainly nothing in his attitude, in this aspect of it, hostile to the equitable vantage-ground occupied by the plaintiffs. But had he shown payment of his purchase-money, subsequent to the entry of satisfaction of the mortgage, I am by no means disposed to concede that his position would have been bettered. Holding his equitable title on the land subject to the mortgage, I think he would be held bound, before parting with his money on the faith of the entry, to inquire whether the “ obligations” which the mortgage informed him were assignable, yet remained in the hands of the mortgagee, and if not, whether they had been paid ? If he made the inquiry, and learned the truth, as he must have done, he is a participant in the fraud attempted by the mortgagee. If he failed to inquire, by requiring the production of the notes at the hand of the mortgagee, he is guilty of such laches as ought to postpone him to the equity of the plaintiffs. Either way his defence fails. But it further appears from the charge of the learned judge below, the defendants held in their hands the means of safety, and he can, therefore, have no reason to complain of a recovery against him.

The objection to that part of the charge which avers notice to Caleb Roberts of the transfer of the note to Durham and Martin, and information given by him to them, of its being secured by mortgage, though not founded in fact, is inefficacious as ground of reversal, for two reasons: First, the supposed fact, mistakingly stated by the court, is wholly immaterial. It touches not the rights of the parties in this controversy, for it is a matter of no moment whether Caleb had notice or not. Secondly, the misstatement of a supposed fact, by the court, is not a cause for reversal of a judgment.

The answer to the fifth assignment of error is, that it nowhere appears the whole amount of the mortgage-money had not been due for a twelvemonth before the impetration of the scire facias. This, I think, it was the business of the defendants to show, by way of answer to the plaintiff’s action, as being a qualification of their primé facie right to sue. Perhaps the court below was right in thinking it pleadable only in abatement, but of this it is unnecessary to speak. The seventh error was not urged.

Judgment affirmed.


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    Bradford v. Potts.
    Where a purchaser has notice of an outstanding claim of title, and takes a deed with general warranty, he cannot set up that title as a defence to an action on a mortgage for the purchase-money, when his possession has not been disturbed: nor is it material that he was misled as to the nature of the adverse title by a statement of the vendor’s agent.
    In error from the Common Pleas of Bradford.

      July 14.
    This was a scire facias on a mortgage by Bradford to Potts, to secure the purchase-money of land conveyed by Potts to Bradford, with a general warranty. The defence taken was an outstanding title in one Lewis; but it appeared that when Bradford was about purchasing, he was informed by Lewis that he had a claim to the land. It also appeared that the agent of Potts had said to Bradford that he supposed this to refer to a claim of title in one Wilson, and that he did not think it amounted to anything. The court (Conyngham, P. J.) instructed the jury this was immaterial, since Lewis had not restricted or specified the nature of his claim, and that the purchaser must look to his covenant, should he be ejected under Lewis’s title.

      Case, for plaintiff in error.

      Williston. and Overton, control.
   Burnside, J.

It lay on’the defendant in this action to show that the title he had accepted was positively bad, and that there was a superior and indisputable title in another person, asserting such title : 5 W. & S. 51. The action was not on a contract, but a scire facias on the mortgage to compel the payment of the balance of the piu’chase-money. On a contract executed, even to show the title doubtful, would not avail the defendant: W. 57. Here there was no covenant broken. The plaintiff in error accepted the title, and took his warranty with full knowledge of the alleged adverse title. He shall not detain the purchase-money when his possession has not been disturbed: Lighty v. Shorb, 3 Penn. 447.

Neither the bills of exception to evidence, nor the errors assigned to the charge, have any foundation in law to support them.

The judgment is affirmed.


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    Williston v. Colkett.
    A warrant was originally assessed in tie name of tie warrantee, for 999 acres. During subsequent years tie amount was reduced as sales were made. It was finally assessed as 200 acres, when in fact it contained 600 acres. Tie owner paid taxes at this rate for two years, and sold tie land. A treasurer’s sale under suci an assessment passes tie title to tie 600 acres.
    In error from the Common Pleas of Tioga.

      July 15. The question in this case was on the validity of an assessment of unseated lands.
    In 1888 and 1839, Asa Mann was the owner of the residue of a tract, part of which had been sold. In those years the assessments were as follows: — Warrant No. 4483, original quantity, 999 acres. Present quantity, 200 acres. Warrantee, James Wilson. Owner, A. J. Underhill. Rate per acre, $1.50. "Valuation, $300. County tax, 1838, $3. County tax, 1839, $3.
    Under these the sale was made to the present plaintiffs. The defendants were purchasers from Mann after the date of the assessments, and before the sale. It was in evidence that the assessments were made in the same manner, and for the same amount for the two previous years, and that Mann had paid the taxes at these rates. The defendant proved the assessment-books for 1829, showing that the tract had originally been assessed as 999 acres, and during the succeeding years had been reduced from time to time by the assessors, as sales were made, until 1832, when it was fixed at 200 acres, and so continued. The evidence was that the quantity remaining in the tract was 600 acres. The treasurer’s deed was for 200 acres, and for that this ejectment was brought. The court decided that the assessment was too vague.

      Williston, for plaintiff in error.

      White, contri!.

      July 17.
   Coulter, J.

(after stating the case.) — It is of some consequence in this ease that Asa Mann, the owner of the 600 acres unseated, had for two years previously paid the tax assessed in the same way, and for the same number of acres, on the same tract, without informing the officers that the true number of acres unseated was 600. By the act of Assembly of 8th March, 1806, it was the duty of the holder to give the commissioners a description of the unseated land held by him; but Asa Mann did not choose to comply with the law, but rather elected to profit by a mistake in the number of acres wbicb was to bis own advantage; and be now complains with an awkward grace of injustice done. He was silent for bis own advantage, when truth and tbe interest of tbe public required him to speak.

No man who reads tbe assessment, can doubt tbe intent of tbe officer to assess all tbe land wbicb was unseated on tbe warrant 4483, in tbe name of Wilson. Such is tbe obvious meaning and import of tbe assessment — tbe 200 acres were mentioned as description. But tbe land was identified by tbe number of tbe warrant, tbe name of tbe warrantee, and tbe name of tbe owner from whom Mann bad purchased. There could be no mistake on tbe part of Mann. Tbe assessment and tbe advertisement gave him full notice; and I must again repeat, that be bad himself, for two years, paid tbe taxes so assessed, and wronged tbe public in a small way. It was clearly tbe intent of tbe act of 1815, to make sales for taxes good, when reasonable care was observed by tbe officers, and a reasonable opportunity given to owners, by notice that his land would be sold, unless tbe taxes were paid. In tbe 4th section of tbe act of 1815, this clause is contained, “ no alleged irregularity in tbe assessment or in tbe process or otherwise shall be construed or taken to affect tbe title of tbe purchaser.” The public interest and public policy require that fair effect should be given to tbe laws with respect to unseated lands, so as not to sacrifice tbe interest of tbe bolder without a reasonable opportunity of notice. Tbe settlement and improvement of tbe country is thereby advanced— and in this ease no injustice is done to Mann: with full notice be has brought tbe evil on himself, and tbe law afforded him a locus poenitentise for his wilful wrong to the public in the two years to redeem. We are of opinion that tbe sale was valid, and did confer title on tbe purchaser for all tbe unseated land on warrant No. 4483, at tbe time of tbe assessment, and that therefore there was error in tbe charge of tbe court.

Judgment reversed, and a venire de novo awarded.


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    Hinman v. Cranmer.
    An entry by the actual owner suspends the running of the statute of limitations. If there be no one residing on the land, it is not necessary to seek the adverse
    occupant and give notice of the claim under which entry is made.
    Subseqixent ratification of an entry by an unauthorized agent is equivalent to a previous command.
    In error from the Common Pleas of Bradford.

      July 17. The defendant in this ejectment had the title to an adjoining tract, on which he resided, and claimed the land in question by virtue of an occupancy, without residence, for twenty-one years. The question was, whether an entry on behalf of the Franklin College, the then owner of the land, had suspended the running of the statute.
    It was proved that the college had given a power of attorney to Morris to attend to the lands. He employed Flowers to make a survey, which he did. This was the entry set up. The college subsequently paid for the survey and recognised the act, and conveyed to the plaintiff.
    The court (Conyngham, P. J.) considered that this entry saved the plaintiff’s right.

      Williston, for plaintiff in error.

      White, contó.

      July 24.
   Coulter, J.

The second section of the act of 1785 clearly and distinctly recognises an entry as one of the modes by which the owner of lands may toll the statute of limitations, and the bringing a writ of right, or any other real or possessory action, as another. The statute does not operate on the possession of the intruder, disseissor or trespasser, but operates on the right of entry and the right of action residing in the owner; and provides that either or both shall be used within twenty-one years after the same first descended or accrued, and not after, except in specified instances. The right acquired by the disseisor or intruder is a result of the laches of the owner.

In England, by the common law, a descent cast takes away the right of entry: Coke Littleton, 237; because the heir of the disseisor was presumed to come in by title. The right of entry existed in England for the purpose of avoiding a fine with proclamations, but in that case the action to recover possession is required to be brought within a year after the entry. The right of entry distinct from the right of action existed in the owner of lands in England against intruders or disseisors; and the English statute of James, on the subject of limitation, from which ours is copied, was tolled by an entry. But by the statute of 3 & 4 William 4, passed in 1833, the whole matter is revised, and in the 10th section it is enacted “ that no person shall be deemed to have been in possession of any land, within the meaning of this act, merely by reason of having made an entry thereon.” I may observe that this statute adopts and systematizes many improvements. But the legislature of this state have not seen fit to meddle with the statute of 1785 on this subject, and it belongs not to the court to alter or change the statutory law. It has been decided in many cases in this state that an entry prevents the running of the statute; and it could not have been otherwise held without doing violence both to its spirit and letter: Carlisle v. Stitler, 1 Penn. Rep. 8; Holtzapple v. Phillibaum, 4 Wash. C. C. Rep. 356; Altemas v. Campbell, 9 Watts, 28. In Altemus v. Long, 4 Barr, 254, it was ruled that the owner, by making entry on the lands, tolled the statute. This may have a tendency to prolong the settlement of original titles, and thus retard, in some measure, the settlement of the country and the quiet of its inhabitants, but the remedy is with a wise and vigilant legislature.

We must now inquire whether there was a legal entry in this case by the owner, and of that I think there can be no question. As the plaintiff did not reside within the bounds of the defendant’s survey, nor had cleared any land over the defendant’s line, the defendant was not bound to hunt after him merely because he found that a quantity of his timber had been cut down and carried away. That is a very common kind of trespass on wild lands. If any one had been resident on defendant’s land, or if any one had intruded his fields over the line, it would have been necessary to give notice to the occupant that the entry was with a view to assert title and ownership, and resist the claim of the intruder. As the case stood, however, the owner did all he could; his agent entered on the land, subdivided the tract into lots by actual survey and making the lines, and entering into contract for the sale of some of the lots — ■ all done within the twenty-one years. It is contended, however, that the agent of the Franklin College (who was the owner of the land) was not authorized, in his power of attorney, to make an entry. That, however, is of no consequence. The Franklin College afterwards adopted and ratified everything done by the agent. If A. enter on the premises in B.’s name, but without any authority or command from B., but afterwards and before the time when demise is laid to be made, B. consent to A.’s entry, such subsequent consent is sufficient: Buller’s Nisi Prius, 103. In Allmers v. Campbell, the Chief Justice says, that an entry cannot be better defined than by saying it must bear on its face an unequivocal intent to resume the actual possession. Nothing which is the subject of evidence could be more strongly marked than the intent of the owner to resume actual possession in this ease, if indeed he had ever been ousted, for he regularly paid his taxes for his full tract. But whether he was in fact or in law ousted or not, it is unnecessary to inquire, as the court is clear that the entry of the owner under whom the defendant claims, barred the running of the statute.

Judgment affirmed.

Burnside, J., dissented.