text:
    Williams’s Appeal.
    Two of the sons of testator, who were his executors, having renounced, the Register at their request granted letters of administration to a stranger, to which a third son and two of the daughters assented. A fourth son, and a daughter, having petitioned for a revocation, held that the Register was bound to revoke the letters, and grant administration to the son who consented to act.
    Erom the Register’s Court of Montgomery.

      Deo. 31. W. Shaeffer having made a will, appointing two of his ■sons executors, died, leaving a widow and four sons and three daughters. The executors, by writing, renounced and desired the appointment of appellant, who was a stranger, as administrator: whereupon letters were granted and bond given, in June, 1846. In May, 1847, one of the sons and a daughter of the testator, the widow being dead, petitioned for a revocation of the letters, and prayed that they should be granted to the .children who had not renounced, or some of them. After service of the citation, another of the sons and two of the daughters filed approvals of the grant of letters to the appellant. The Register refusing to revoke, an appeal was taken to the Register’s Court, who revoked the letters, and appointed the petitioning son administrator. From this decree this appeal was taken.

      Mulvany, for appellant.
    The Register has the power to select, though his nominee be not a relative of the decedent; Sarkie’s Appeal, 2 Barr, 157; and having refused to vacate the letters, and there being no caveat, no appeal lies. If it were otherwise, the consequences ayouM be most serious, as is shown by Hinkle v. Eichelberger, 2 Barr, 483; the acts of the administrator being wholly void if revoked for error in the original grant.

      Gr. R. Fox, contra.
    The widow is now dead; and under the ,22d section of the act, the Register has no discretion but between children residing in the state. Here the only son who was willing personally to act was appointed, and this the court were bound to do; Ellmaker’s Estate, 4 Watts, 34.

      Feb. 1.
   Coulter, J.

The decree of the Register’s Court, re-

voking the letters of administration, with the will annexed, granted by the Register to George S. Williams, was right. When the executors nominated in the will of William Shaeffer, deceased, renounced the trust, they had no authority whatever to designate any person to be appointed administrator Avith the will annexed. The widow of the deceased, it is true, also declined the trust, and she Avould have been first entitled to the administration after the renunciation of the executors. But she intimated no desire or request that Williams should be appointed; which strips the act of the Register from all covering or protection, from the case cited by the appellant’s counsel in 4 Watts, 34.

While the case was pending before the Register’s Court, the affidavits’ of three of the kindred or relations, stating that they were satisfied with the appointment of George S. Williams, and did not wish him removed, were produced. But although these persons might relinquish their own right, they could not take away the rights of other persons. All the children of the deceased stood in equal degree of kindred to him; and among them, preferring males to females, it was the duty of the register to designate and select those most competent, if they all desired, the appointment. But George S. Williams AYas selected by the Register, at the request of the renouncing executor, he not being of kindred, without the request of the widow, or the next of kin of the deceased, and without notice to his children. The 22d section of the act relating to Registers and Registers’ Courts, passed in 1832, prescribes the mode and manner in which the register shall appoint an administrator, when, by law, letters of administration may be necessary. And, by the 18th section of the same act, whenever executors appointed in any last will shall renounce the trust, the register shall grant letters of administration with the will annexed, to the person by law entitled thereto. Under the provisions of this act, the letters of administration to George S. Williams on the estate of the deceased were improvidently granted; and the decree of the Registers’ Court, by which they were revoked, and letters of administration with the will annexed were granted to Lewis Shaeffer, son of deceased, is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    Hanson v. The Bank of Penn Township.
    Under the 39th sect, act of 1832, a transcript of a balance due by executors maybe filed in a different county from that in which probate was made.
    In error from the Common Pleas of Montgomery.

      Dee. 31. — Case stated. Hanson died at Philadelphia, in 1842, leaving plaintiff in error his executrix, who proved the will in that county. In 1844, the report of an auditor was confirmed absolutely, by the Orphans’ Court, finding a balance due by the executrix to the estate. In 1846, the Bank recovered a judgment de bonis testatoris against the executrix, and procured an extract of the proceedings in the Orphans’ Court of Philadelphia, to be docketed in Montgomery. On a sei. fa. upon that extract, this case was stated, and the question was, whether the plaintiff was entitled to judgment, the defendant, at the time of the filing of the extract, having been seised of real estate in Montgomery county.
    The court (Krause, P. J.) gave judgment for the plaintiff.

      G. B. Browne, for plaintiff in error,
    contended that this remedy was confined to the Common Pleas of the respective counties where the will was proved. That it would be highly inconvenient if the lien could be entered in every county in the state, and being a novelty, it was not to be extended by construction.

      G. R. Fox, contra.
    The argument ab ineonvenienti would equally apply to the new remedy, by entering the same judgment in every county. The act was a beneficial one, and should receive a liberal construction to effect the plain intent.

      Jan. 6.

   Rogers, J.

The 39th section of the act of the 29th March, 1832, makes it the duty of the prothonotaries of the Courts of Common Pleas of the respective counties, to file and docket, at the instance of persons interested, certified transcripts or extracts of the amount appearing to be due from executors, administrators, guardians, or other accountants, on the settlement in the Orphans’ Court. The transcripts or extracts so filed are made liens on the real estate of such accountants, from the time of such entry. The defendant, who was an executrix, settled her account in the Orphans’ Court of the county of Philadelphia, an extract or transcript from which was filed in the county of Montgomery. A scire facias was issued, as is directed in the act, in the Court of Common Pleas of the latter county, and the defendant contends judgment cannot be rendered against her, because the act does not authorize the filing a transcript in any county except where the account is settled. The act, which is designed to protect persons who, in many instances, are incapable of protecting themselves, is remedial, and therefore entitled to a liberal construction. We see no reason, arising from the letter or spirit of the act, which requires that its operation should be confined to any one county. The accountant, it is true, usually lives in the county where the account is settled, and in most cases his real estate may be situated there. But this is not always the case, either w7hen he takes on himself the burden of the trust, or settles his account, and his real estate may be situated in a different, or in more than one county. It is difficult to perceive any reason why the legislature should intend to limit the remedy to one county more than another, or why it should be confined to one. There is nothing in the act which prohibits the lien from being filed in any or in every county where the accountant has real estate. It is said this is a power which may be abused; but if so, which we do not apprehend, there will be no difficulty in applying a proper curative. It is very obvious, that in many cases it is absolutely necessary to file the extract in more counties than one, to procure an adequate indemnity; as, for example, where the sum due exceeds the real estate in any one county, and where the accountant has real estate in more than one. Had it been designed to limit the operation of the act, as the defendant contends, the intention would have been indicated in the usual language, such as that the extract should bo filed in the proper county. But as no such expressions are used, we are not restricted to the narrow interpretation on which the defendant insists.

Judgment affirmed.


author: Gibson, C. J.

text:
    Clemens v. Davis.
    The vendee of a manufactured article, to be delivered when completed, electing to take it in its unfinished state, makes a new contract, and possession being delivered thereunder, the title is complete as against the creditors of the vendor, whose executions, at the time of such delivery, had not been leii with the sheriff.
    In error from the Common Pleas of Bucks.

      Dec. 31. Trespass against the sheriff for levying on the goods of plaintiff. It appeared that Clemens, the plaintiff, called at the shop of Reigle, who was a carriage maker, and agreed to take a. carriage then being built, as soon as it should be completed, at a price to be fixed between $150 and $160. About five months after, Clemens being a creditor of Reigle, called again, and agreed to take the carriage in its then unfinished condition, in satisfaction of his debt, and it was accordingly delivered to him. On the same day, an execution against Reigle was left with the sheriff, and the sale of the carriage under that writ was the trespass complained of.
    The court (Krause, P. J.) instructed the jury that if the carriage was not delivered when the agreement was made, no title passed as against Reigle’s creditors, under Pritchett v. Jones, 4Rawle, 226. The opinion there was read to the jury, and his honour added, that if the delivery was not at the time of the contract, but some time after, and just before the sheriff’s levy, no title passed, but the levy bound it.

      Chapman, for plaintiff in error.

      E. J. Fox, contra.
    The contract was for a completed carriage, and a delivery to avoid an execution must be Iona fide; McBride v. McClelland, 6 Watts & Serg. 94; which it was not, being unfinished, and therefore not pursuant to the agreement.- Young v. McClure, 2 Watts & Serg. 141; Mucklow v. Mangles, 1 Taunt. 318.

      Jan. 3.
   Gibson, C. J.

As in every other case of an article ordered, the first contract in this case was executory. It was for a finished article, and nothing but the delivery of a finished article could satisfy it. But the terms of it might be altered or even entirely changed by a new bargain ; and were they not ? The plaintiff, being the vendor’s creditor, received the wagon 'in an unfinished state, in satisfaction of his debt, when his debtor was breaking up; and certainly any one may acquire title to an article by paying for it, and receiving it as it exists at the time. There is no principle of law to forbid it. The finishing is a condition of the contract for tbe benefit of tbe vendee, which he may waive; and he does waive it when he accepts the thing in an unfinished state. True it is, that an ordered article, while in a process of manufacture, is tbe property, and at the risk of tbe manufacturer; and Pritchett v. Jones goes no further; but where the thing is absolutely delivered in satisfaction of the old bargain, or in pursuance of a new one, the contract is executed, and the title passes. A sale is an executed contract, to constitute which, delivery, in fact or in law, is indispensable, and it cannot be given of a thing which has not fully come into existence. Where a customer, for instance, orders a coach to be made for him, the order cannot be executed by delivery of an unfinished coach, which is no coach at all; and till the work is finished and delivered, it remains the property, and at the risk of the manufacturer. If it were not so, the ownership of the whole would pass to the customer piecemeal, as the parts were added and fitted, which would be absurd.. But if the parties consent to abandon tbe original contract, and pass the article in an unfinished state, on their own terms, the vendor is in a condition to execute the contract immediately, and he does so when he delivers it in satisfaction of the new arrangement. Here he testified that every thing had been done to the wagon which was to have been done by him, and that it was taken to another shop to have the dash put to it, which was all that was wanting to complete it. Nor is it material that the painting was to be done at the manufacturer’s expense, for that was in effect merely to abate the original' price.

And the transaction stood clear of exception on the ground of collusion. Had the vendee purchased the property to assist the vendor in getting it out of the reach of his creditors, the contract would have been fraudulent, by the 13 Eliz., though he had paid a full price presently advanced for it. But it is universally true, that where there is a true debt there is no collusion. Till the execution had actually come into the sheriff’s hands, the creditor had a right to secure his debt, by taking whatever tbe debtor bad to give in satisfaction of it. The property, it seems, was not bound by the execution when it was delivered, and the rest was a matter between the parties to the contract.

Judgment reversed, and venire de novo awarded.


text:
    Garber v. The Commonwealth.
    A decree of the Orphans’ Court against an administrator, is conclusive as to his sureties.
    Sureties of an administrator may appeal from a decree against him.
    Insolvent administrator may claim credit for a debt due by himself to his intestate, for the sake of discharging his sureties.
    In error from the Common Pleas of Montgomery.

      Dec. 31. This was an action against the administrator of Garber and his sureties, on the administration bond, to the use of the distributees of the intestate. The plaintiffs gave in evidence the proceedings in the Orphans’ Court on a citation to the administrator to file his accounts, which were referred to an auditor, who reported a balance due to the estate, which was confirmed. Subsequently, an auditor was appointed to make distribution, who reported a sum due to Dennis O’Brien, the real plaintiff in this action. On confirmation of this report, a fi. fa. issued, against the administrator, and was returned nulla bona.

    The defendants offered to show that the drawers of a note, (one of whom was the administrator,) belonging to the estate, and with which the administrator was charged by the auditor, were insolvent at the time the inventory was made out, and it had always been irrecoverable.
    The court rejected the evidence, and directed a verdict for the amount found due on the distribution account by the auditor’s report; and these were the errors assigned.

      Mulvany, for plaintiff in error.
    The administrator could not claim credit before the auditor, on account of his own insolvency. [Per Guriam. — He should have done so for the sake of his sureties.] If the report is conclusive as to him, it cannot be as to the sureties who were not.in court, and could not have appealed from the decree. It is like the case of a judgment against a warrantee, which is only prima facie evidence against the warrantor, unless he had notice of the action: Beach v. Ranney, 2 Hill, 312; Ordinary v. Wallace, 1 Rich. 512; Dawes v. Shed, 15 Mass. Rep. 6.

      G. D. Fox, contra.
    The act of 1832 makes the decrees of the court conclusive, and not examinable collaterally.

      Jan. 12.
   Rogers, J.

This is an action of debt, on an administration bond, against Jacob Garber, who was the administrator of Dennis O’Brien, and William Kennedy and William Henry, his sureties. The action, which is joint, is brought to recover the amount due, on settlement of the administration account in the Orphans’ Court, and the question arises on the rejection of evidence, tending to prove a mistake in the decree.

That the decree in the Orphans’ Court is conclusive, would seem to be settled by the act of the 29th of March, 1832. In that act, second section, after a series of decisions to the same effect, the legislature declares the Orphans’ Court to be a court of record; that its proceedings and decrees, in all matters within its jurisdiction, shall not be reversed or avoided, collaterally, in any other court; but that they shall be liable to reversal, modification, or alteration (only) on appeal to the Supreme Court. We think the court was right in ruling out the evidence; because it is an attempt to impeach the decree collaterally in another court, and not, as is described, by appeal to a higher tribunal. As this is a joint suit, it cannot be doubted this would be the effect of the evidence, as the alteration would enure to the benefit of the principal as well as the sureties ; for as the suit is joint, the judgment must be joint. A judgment cannot be rendered for one sum against the principal, and for a different sum against his sureties. But waving this objection, which may be considered technical, is this decree open to alteration or modification at the instance of sureties ? The defendants contend, that it is because it is a rule that no person is bound by a judgment or decree but those who are parties to the suit or privies. This doctrine, which it is not my purpose to deny, is thus stated in the Dutchess of Kingston’s case, 20 State Trials, 538. It is a general principle, that a transaction between two parties, or judicial proceedings, ought not to be binding on a third; for it would be unjust to bind any person who would not be admitted to make defence, or to examine witnesses, or to appeal from a judgment he might think erroneous. That there are some exceptions to the rule, is decided in Masser v. Strickland, 17 Serg. & Rawle, 354, and Evans v. The Commonwealth, 8 Watts, 398. It is there held, that in an action against the sureties of a constable, on his official bond, to recover the amount of a judgment for which the constable became liable, the judgment previously obtained against the constable himself is conclusive evidence of the liability of the sureties. The reasoning of Mr. Justice Huston, who delivered the opinion of the court in Masser v. Strickland, adopted by Mr. Justice Kennedy in Evans v. The Commonwealth, applies with at least equal force to the sureties in an administration bond. In the Iatter case, the parties refer themselves to,the Orphans’ Court, as the proper tribunal to settle the accounts of the administrator. For the condition of the bond, taken in conformity to the act, is, that the residue of the estate which shall be found remaining upon the administrator’s account, the same being first examined and allowed by the Orphans’ Court having jurisdiction, he, the administrator, will deliver and pay to such person or persons as the Orphans’ Court, by the decree or sentence pursuant to law, shall limit and appoint. The condition contains a stipulation to pay the amount found due on settlement, in the proper and appropriate tribunal, to the persons entitled.

Besides, to bring the case within the principles ruled in the Dutchess of Kingston’s case, it must appear the sureties are without remedy in the Orphans’ Court; that they would not be admitted to make defence in that court, or to appeal from the decree. But in the case of sureties on an administration bond, on the contrary, it seems to me to be clear, that the 59th section of the same act, which declares that any person aggrieved by a definitive sentence or decree of the Orphans’ Court may appeal to the Supreme Court, comprehends this case. And they cannot, with any propriety, be considered as strangers to the decree; they would be permitted to come in and defend fro interesse suo. This, then, is not a question of right, but of favour. If aggrieved, they are mot without remedy. They may apply to the Orphans’ Court, which is the proper and appropriate tribunal for the investigation of the accounts of an administrator — more competent (possessing as they do, in all matters within their jurisdiction, the powers of a Court of Chancery) to administer relief than a court of common law can be. The experience of every day shows the importance of keeping the respective courts within the proper limits. Indeed, it is essential to the administration of justice, to preserve to the Orphans’ Court all the powers vested in it by law. The inconvenience and injustice resulting from permitting the decrees of that court to be examined, collaterally, was long felt, and has at length been happily put at rest by legislative enactment. As, then, the sureties have a remedy in the Orphans’ Court, there is no room for ■ the application of the principle insisted on by the plaintiff in error.

Judgment affirmed.


author: Rogers, J.-,

text:
    Worth v. Peck.
    Under the act of 1844, the county commissioners cannot defend an action for the penalty for not issuing a warrant to collect the fines returned to them by the brigade inspector, by showing defective or void enrolments by the captains, whose returns were certified by the inspector.
    ' The return of the inspector is evidence.
    The action for the penalty is properly in his name.
    Where a statute affixes a penalty of not less than one, nor more than three hundred dollars, the minimum is one himdred dollars.
    In error from the Common Pleas of Chester.

      Dee. 31 — Dan. 3, 4. This was an action of debt by Peck, a brigade inspector, against Worth, one of the commissioners for the county in which were the townships composing the brigade, to recover the penalty imposed by the act of 1844, for neglecting or refusing to deliver to the collectors copies of the returns of fines assessed on delinquent militia men.
    •• The plaintiff offered in evidence his list of delinquents and fines assessed, which was certified by himself “ to be a true copy of returns made to me, according to law.” It was proved this paper was handed to the commissioners within the time required by the act of Assembly, and was produced from their office. The defendant objected, but the court overruled the objection. No warrant had been issued by the commissioners pursuant to the statute, and the commissioners had declared they intended not to issue one.
    The defendant offered to show that in one of the townships composing the brigade, there had been no enrolment prior to the first Monday in May in the year in question. That on that day persons assembled, but there was no officer; that they then agreed upon a person to muster them, who made out a list of those present, and subsequently procured an appointment from the colonel as captain; that his return was in part of absentees on the first Monday, and was made to the colonel and not to the inspector, but not sworn to, as he never was commissioned. That, in another township, the person enrolling was never commissioned, and the returns were not sworn to. That, in another, the person enrolling had no commission, or appointment in writing. This evidence was rejected. The defendant was a member of the Society of Friends. The points were — 1. That the action should be in the name of the Commonwealth. 2. That the jury might find a verdict as low as one dollar. 3. The act was unconstitutional.
    Bell, P. J., told the jury the only question for them was the amount of the penalty, and as to that the minimum under the act of Assembly was one hundred dollars.
    The evidence admitted and rejected, and the points above stated, were assigned for error.
    Darlington, for plaintiff in error.
    The certificate of the plaintiff was but secondary evidence, and he should have produced the returns which were in his office. The evidence we offered was certainly relevant. It showed that the proceedings here, which were of a court of inferior and limited jurisdiction, were irregular. This distinction has always prevailed: Willes, 31, 128; 19 Johns. 39; 7 Johns. 98; 2 Day, 423; 13 Johns. 154. The commissioners and their officer would have been trespassers in levying the fines, if any such irregularity were shown: Sew. on Sheriffs, 101; Morgans v. Bridges, 1 Barn. & Ald. 647; Parsons v. Lloyd, 2 Wm. Bl. 845. The act of Assembly says, “the penalty shall not be less than one nor more than three hundred dollars” — the minimum, is, therefore, one dollar.
    Hemphill, contra.
    The act was to remedy the existing evil, which was a refusal of the captains to act when elected, or of the people to elect. The inspector acts ministerially only, and not judicially; his returns are declared to be binding on the commissioners, who must act upon them. They are not liable for any previous mistakes: 1 Cain. T. R. 92. The remedy is against those who committed the blunder: Fitler v. Patton, 8 Watts & Serg. 458.

      Lezvis, in reply.
    Those only who are regularly enrolled are liable to fine, and we offered to show there were no objects for the commissioners to act upon, that is, no militia men, 8 Rep. 114; 10 Rep. 76; Cro. Ch. 336 ; 1 Rawle, 148, 322; 14 Serg. & Rawle, 164. [Rogers, J. — There is a distinction in our cases; the party is- not a trespasser, but if he act maliciously an action on the case lies.]

      Jan. 19.
   Rogers, J.-,

(after stating the act of Assembly and the facts of the case.) — The question is nothing more nor less than this, whether a law of the legislature shall be enforced in the county of Chester.

To the admission of the paper purporting to be a true copy of the militia fines of the delinquent enrolled militia men, the original remaining on file in the office of the brigade inspector, the defendant objected, and this is the first bill. But this is the document referred to expressly in the sixth section, on which the board are required to act; and why it should he necessary in an action against them for refusal to perform their duty, to produce the original, I am unable to discover. We cannot suppose that it is not a true copy, for the presumption is, that the plaintiff, who is a public officer, has done his duty. It is evidence, in the first instance, and if the original would be serviceable in the defence, which we cannot suppose, the production of the paper may be compelled, on notice to the brigade inspector. The objection, founded on the idea that it is not the best evidence, is the erroneous notion, as will be hereafter shown, that the commissioners are constituted judges of the legality of the appointment.

But this exception was not much pressed. The stress of the argument is on the second bill.

The defendant offered to prove certain points detailed in the second bill, which was overruled, and of this he complains.

It is somewhat difficult to comprehend the precise object of the testimony offered, or its extent; but, as I understand the offer, it is intended to prove that, in certain designated companies belonging to the brigade, there were great irregularities; that no company officers were chosen, and no proper enrolment made, and in some no attempt at enrolment whatever. But, conceding the truth of every point stated in the bill, what defence is that to the action ? It is no justification for refusing to issue any warrant whatever, even for the collection of the fines of those who were properly enrolled. If there was one delinquent within the bounds of the brigade, the penalty would be incurred. But, waiving this objection, which, it is submitted, would in itself conclude the defendant, it remains to inquire into the right claimed by the commissioners to judge whether the previous proceedings havebeen regularly conducted. I have looked in vain throughout the act for the semblance of authority vested in them to go behind the return of the brigade inspector. That is their warrant, in fact, amounting to an order, by competent authority, to perform certain ministerial duties, absolutely essential to the efficiency of the militia system, under a certain penalty prescribed by law. It was not designed they should have any discretion. It is an act, as expressed in the title of the bill, to provide a more rigid mode for the collection of the militia fines. It became necessary on account of the evasion of previous acts; and now the attempt is again made to evade its provisions by a claim destructive of the whole action of the bill, and with the avowed intention of defeating it altogether. To each officer is assigned his appropriate duty, and he is not made answerable for the duties of others. This is the whole scope and design of the act. We are at all times disposed to deal tenderly with conscientious scruples; but it may not be improper to remark, that more respect would be entertained for the defendants, if, as they did not deem themselves at liberty to execute the law, they had thought proper to resign a commission, the duties of which they could not in conscience perform. In charity, I am inclined to believe that they ceased to remember they were acting under the obligation of their official oath. It is some palliation of their conduct that they wished to resign, but were advised they were not permitted to do so. It seems a little out of place that persons of such tender consciences do not recognise the obvious duty of every citizen to submit to the laws of his country; but rather seek by every kind of indirection to elude its plain requirements. The excuse now made for the commissioner is, that, as some of the companies in the brigade were irregularly mustered, and, as to some, there was no enrolment; that they were not bound to issue their warrant to the collectors, because it would subject them to suit as trespassers. Even granting the law as assumed, I am by no means prepared to admit it would be any justification of their conduct. It is a risk which a public officer is bound to run. Eor the performance of his duty, he must, in many cases, rely for his indemnity on the Commonwealth, in whose service he is, who will at all times protect him where he is in no default. But, be this as it may, this is a mere pretext, for they incurred no danger on that account. This is perilous doctrine for the commissioners ; for the consequence is, they would be subject to an action at the suit of every person returned as a delinquent without being properly enrolled. It would expose them to an inquiry, impracticable in the nature of things, to ascertain who were and who were not properly enrolled and assessed. That the commissioners would not be liable to action, is ruled in Fox v. Wood, 1 Rawle, 146. In that case, it is decided that all that is necessary is, that the accused should be liable to military duty. That is the foundation of the charge, and gives jurisdiction to the court; and that is all that is required to protect the officer, who executes the warrant, from suit, although the individual against whom the warrant is directed is exempt. That the officer is not bound to know that fact, and consequently he cannot be a trespasser, the Chief Justice refers to a case ruled at Chambersburg, which is well recollected, although unfortunately it .has not -been reported, having shared the fate of all the cases decided at that term. By the act of 1844, instead of a regimental court-martial, the company officers are substituted. To them jurisdiction is given, and they are responsible. They are bound to make the enrolment, to make the return to the brigade inspector, who returns a list of delinquents to the commissioners, who are required in that case to issue their warrants to the appropriate collectors. Neither the commissioners nor the brigade inspector are bound to know who arc exempt, or who are enrolled, and consequently they cannot be answerable at the suit of the party aggrieved. The remedy is against the person making the false return, and guilty of the wrong. But here the commissioners, for reasons which they have not even attempted to conceal, have peremptorily refused to perform their duty, by which it becomes impossible to determine who are delinquents and who are not, as, by their refusal to act, they have effectually shielded the guilty and the innocent alike from responsibility. It is not alleged that the whole brigade were so improperly enrolled as that none were delinquents; and, if it had been, it would have been no justification, as that is a matter with which they have nothing to do. It is, however, contended that, although the commissioners might have issued their warrant without risk, yet they were not bound to do so. But we are of opinion they have no discretion. Their duty is ministerial; that there is nothing in the act which constitutes them judges. They are bound to obey, without inquiry, the plain directions of the act. Whether the officers appointed to enrol the militia have done their duty, must he left to be determined in a suit between the proper parties. If the commissioners have the right to go behind the return of the brigade inspector, the collectors and the brigade inspector himself have the same right — a construction which would prostrate the intention of the legislature, and amount to a repeal of the act.

We perceive no error in the answers of the court. The action, for the reasons given in the charge, is well brought in the name of the brigade inspector; and the jury were not at liberty, as they were instructed, to give less than $100, that being the minimum penalty imposed by the act on the commissioners for refusing to execute the law.

There is no error in declining to answer the plaintiff’s third point, of which the defendant can avail himself, as that was a constitutional question, which the counsel declines to argue, and which must have been answered against him. It is unnecessary to repeat what has been well said in the charge.

Judgment affirmed.


author: Burnside, J.

text:
    Tyson v. Passmore.
    A verdict in ejectment for eighty-two and a half acres of land, being the land covered by the warrant of survey of July, 1832, is sufficiently certain.
    In error from the Common Pleas of Chester county.

      Jan. 3. The plaintiff in error brought ejectment for two hundred and thirty acres of land, and the jury found for the plaintiff eighty-two and a half acres of land, being the land covered by the warrant of survey of July, 1882. These were all-the facts on the record, there being no bill of the exceptions, and no mention of the questions in dispute in the court below, or of the facts referred to in the opinion of this court. The Reporter is therefore unable to state what those facts were.
    The only error assigned was the uncertainty of the verdict.

      Darlington and Lewis, for plaintiff in error,
    contended that the verdict was too uncertain, because it did not find in what part of the land held by the defendant the land recovered by the plaintiff was located, and the sheriff could not execute a habere; and that the defendant could not, after the sale to the plaintiff, determine the location by a survey without his consent. They cited 10 Serg. & Rawle, 153; Stewart v. Speer, 5 Watts, 79; Burdick v. Norris, 2 Watts, 28; Harrisburg v. Crangle, 3 Watts & Serg. 460; O’Keson & Silverthorn, 7 Watts & Serg. 246; Tryon v. Carlin, 5 Watts, 371.
    P. F. Smith and Meredith, contra.
    The position of the land was determined by the survey, and the jury have found that it is the land the plaintiff is entitled to. It is well settled that a verdict referring to a paper deed, or natural boundaries, which are certain, or which will enable a surveyor to lay out the land with certainty, is sufficient.

      Jan. 24.
   Burnside, J.

This case was before the court at December Term, 1845, and is reported in 2 Barr, 122.

The plaintiff below, who is plaintiff in error, complains : 1. That the verdict of the jury does not ascertain where the eighty-two, acres and a half are to be taken from the tract claimed; an< 2. The judgment on the verdict is uncertain, and does not ascertain the rights of the parties as to the tract of land in dispute. The ejectment was an equitable one, to recover possession of a messuage and tract of land situate in the township of West Nottingham, in the county of Chester; bounded by lands of Aaron Carter, Isaac Tyson, jun., John W. Passmore, and others; containing two hundred and thirty acres, more or less. The verdict was for the plaintiff « for eighty-two and a half acres of land, being the land covered by the warrant of survey of July, 1832.” The warrant, which was for seventy-five acres, and specially descriptive, had been surveyed, and returned for seventy-three acres and sixty-two perches, which bounded on the south-east end of the survey, on a new survey of John W. Passmore. The plaintiff, under his contract with the defendant, claimed the whole of both old and new surveys. The verdict is in accordance with the warrant the plaintiff purchased from the defendant. The whole title of the plaintiff and the defendants in evidence demonstrate that he has no ground of complaint. The verdict gives all the land to the plaintiff according to the calls of his warrant, and ten per cent. It gives to the plaintiff a portion of the defendant’s later survey. To this the defendant accedes, and has actually run off the quantity, and left in the office a deed in accordance with the verdict.' The defendant offers the plaintiff the land surveyed; still the plaintiff wants to set aside the verdict for uncertainty. Whenever the verdict is sufficiently certain to enable the court to give judgment, and the sheriff to deliver the possession, where that is required in a habere, it will not be disturbed; 17 Serg. & Rawle, 400. Our courts will always give verdicts a liberal construction, and give judgment upon them when justice is done between the parties. This is more especially the case in equitable ejectments to enforce contracts.

The verdict gives to the plaintiff all the land he was entitled to recover under the contract, and all the land he could hold or claim under the warrant which was the foundation of his title. If the plaintiff is still dissatisfied with the return of survey and the addition decreed by the verdict, and desires it all to be returned in the warrant, he can obtain an order to that effect from the board of property, and have a re-survey of the whole quantity, and in accordance with the verdict and judgment.

Equitable ejectments in Pennsylvania are often a substitute for a bill in equity. When understood, they are capable of being managed so as to perfect contracts, and do right and justice between parties.

Judgment affirmed.


author: Coulter, J.

text:
    Edge v. The Commonwealth.
    Supervisors of tire public highways are punishable by indictment for neglecting or refusing to open or repair a public highway, since the act of 1834, creating them overseers of the poor, and affixing a penalty for neglect of duty, recoverable by action.
    In an indictment for misfeasance by a public officer, it is sufficient to aver that he was duly elected by the qualified voters of the township, &c., and took upon himself the duties of the office.
    The act of 1838, which made it the duty of the supervisors in Chester to let the roads on contract, rendering the supervisors liable only after default of the contractors, was repealed by the act of 1841, and their primary liability restored.
    'The neglect to open and repair, is well joined in one count of an indictment.
    In error from the Quarter Sessions of Chester.

      Jan. 6, 7. — This was a writ of error to a judgment on an indictment against the plaintiffs in error, the first count of which averred that they were supervisors of the roads in East Cain, “duly elected by the qualified voters of the township,” and had taken upon themselves the duties of the office ; and that they neglected the duties of the office, and did not open and mend and repair, or cause to be opened and mended and repaired, the public roads, &c., to the common nuisance, &c. The second and third counts laid the offence to be the neglect, &c., as to a particular road.
    ' The errors assigned were — 1, that an indictment did not lie; 2, that the election of defendants was not sufficiently averred; 3, that the offence was insufficiently stated, in not setting forth that the roads had been let under the acts of 1838 and 1841, and that the contractors had neglected to repair; 4, that the charging a neglect to open and mend was bad, inasmuch as the contractors were bound to repair.

      Darlington, for plaintiff in error.
    The act of 1802 affixed a penalty to the neglect of duty on the part of the supervisors, and the act of 1808 added the punishment by indictment. This act is omitted by Mr. Dunlop in his Digest, for the reason that it is in effect repealed by the act of 1834, s. 92, which affixed a penalty recoverable by action, under the act of 1806, and the settled construction that act has received: Hellings v. Comth., 5 Rawle, 64; Fromberger v. Griener, 5 Whart. 357; Whitney v. Emmett, Bald. 317. The jurisdiction of the court is therefore taken away, and that of justices of the peace in an action for the penalty alone remains.
    The election of the defendants should have been set out. The words used in this indictment are nearly identical with those in Comth. v. Rupp, 9 Watts, 114. [C. J. — That was for not serving in the office, this is for misfeasance by those acting in the office.] •
    The third and fourth errors arise under the local statutes. By the act of 1837-8, p. 631, the roads must be let to contractors; and upon their neglect notice must be given to the supervisors, who are to proceed on notice from the auditors, and recover from the contractors. This is extended to Chester county by the act of 1838-9, p. 191. By the act of 1841, p. 295, the right to recover from the contractors is alone altered. Under these laws, it is therefore necessary to aver and prove a letting and neglect of the contractors, notification to the supervisors, &c.: Archb. Cr. Pl. 502; 1 Chit. Cr. L. 227, 228; Cowp. 683; 1 Barr, 307. The counts are clearly double, since the offences are laid; one of which, moreover, is a breach of duty in the first instance by the contractors: Archb. 54.

      Attorney-General, contra.
    The indictment is sufficiently certain as to the election of the defendants, since they are acting in the office, and the proceeding is for a breach of duty: Cro. Circuit Comp. 272, 274, 223; 2 Stark. Cr. Pl. 115, 166. Nor is it material that there has been another special authority to repair given. The inhabitants are at common law indictable for not repairing, and their duties are vested in the supervisors. The act of 1834 merely gives an additional remedy by action, leaving the former one by indictment in force, as in Ross v. Palmer, 4 Barr, 517; and the general rule of construction in such cases is to consider the civil remedy merely cumulative.

      Feb. 7.
   Coulter, J.

The first error assigned is that an indictment does not lie against supervisors of highways who refuse or neglect to open, amend, and repair public roads. But the court are very clear in their judgment that there is nothing in any act of Assembly which displaces this remedy. Not opening a highway, or refusing and neglecting to keep it in repair, is an injury to the public, and is indictable as a public or common nuisance; 3 Penna. ’ Rep. 502. The supervisor is enjoined by statute to open and repair roads; and it is essential to the convenience of the public that the remedy to enforce compliance on the part of the officers should be emphatic, and at the instance of the public authorities of the state. The ninety-second section of the act of 1834, it is true, provides that supervisors shall be liable to a penalty of not less than four dollars, nor more than fifty, to be recovered in a summary way before a justice of the peace, &c., for refusing or neglecting to perform any duty required of bim by law. But that act imposed on supervisors the duties of overseers of the poor, and nothing else; and we must construe the section to relate to those duties especially, and to have been intended for the benefit of individuals ; as the ninetieth section, which is the first that relates to supervisors, enacts “that the supervisors of each township, elected or appointed in pursuance of this act, shall perform all the duties imposed by law on supervisors of the public roads and highways, and be subject to the same responsibilities:” thus clearly showing that, in contemplation of the legislature, these officers were amenable to other responsibilities, as supervisors of roads, than those imposed by that act, which constituted them overseers of the poor; and one of those responsibilities was, and continues to be, the liability to an indictment for refusing or neglecting to open and repair highways. There is no other provision, nor any other act or clause giving the public or state any remedy save this of indictment

It is quite sufficiently alleged in the indictment that the defendants were legally elected supervisors of East Cain township. The averment is, “ that they were duly elected by the qualified voters' of East Cain township, and took upon themselves the office of supervisors,” &c. We must take some things to be true from their resulting by irresistible necessity and conclusion from others; and when it is averred that officers were duly elected by the persons qualified to elect them, we cannot resist the conclusion that they were legally elected; the more especially as it is further averred that they took upon themselves the duties of the office. After verdict, the exception is without reason or substance. •„

• By the provisions of the act of 1838, which was confined to Delaware county, but extended the next year to the county of Chester, the supervisors were directed to let out upon contract to some taxable inhabitant the repair of the roads for one year; and upon complaint made to the supervisors, by any person, that a road was not in good repair, they are required, if they believe the complaint is well founded, to give notice to the contractor complained of, and request him to put the road in good repair in six days thereafter; and if they shall still neglect, then it shall be the duty of two of the auditors of the township, upon notice given them by the supervisor, to examine the road; and if they shall be of opinion that the road is not in good repair, they shall direct the supervisors to have the road put in repair at the cost of the contractors ; and all laws inconsistent with these provisions are repealed. If the law had so remained, the supervisors would not have been indictable for not repairing the road in the first instance; because the law making it their duty to do so was abrogated, and the duty was devolved on other persons, with such provisions for compelling them to repair as the legislature deemed suitable. To bring the supervisors within the penalty of the law for not repairing, the provisions and exigencies of the statute, which ultimately threw upon them the duty of making the repairs, would necessarily have to be averred in the indictment, as being statutory provisions which entered into the nature, character, and description of their offence. But in 1841 a lawr was passed wiping out this cumbrous machinery, as it no doubt had been found inconvenient in practice; and it was provided that after the passage of that act, the supervisors in and for the county of Chester, when the contractor or contractors should neglect or refuse to keep in order and repair their sections of the public roads, shall put the same in good repair; and so much of the act of 1838 as was inconsistent with that provision was repealed, so that the actual posture of affairs, so far as regarded the repair of the roads, was restored to what it had been before the passage of the act of 1838: the only question being whether the roads were in good repair or not; for if they were not, it was the duty of the supervisor to repair them. It was therefore unnecessary to set out in the indictment the provisions of the act of 1838, which were interposed between the officer and liability for not repairing, because they were repealed by the act of 1841. It is by that act expressly made the duty of the supervisor to repair the roads when they require it, and he is enjoined to make the contractor pay for it.

The third error assigned, that there is no averment that the contractor refused or neglected to repair, &c., is therefore invalid.

The fourth error assigned is, that neglecting to open, mend, and repair, cannot be joined in the same count, because it is the duty of the contractor to mend and repair. But it is by the act of 1841, as I have said already, the duty of the supervisors to repair whenever the road requires repair, that is, when the contractor has neglected to keep them in good repair. The offences of not opening and not repairing, are precisely of the same character and description, if indeed they are distinct. A road may be badly and insufficiently opened; obstructions often exist by trees being overthrown in a tempest; and in either case it is in bad condition, and requires to be opened and repaired. The language of the act of 1836 is, that roads shall “ be effectually opened and kept in repair.” And we cannot say that the road in this case did not require opening as well as repairing; and as the duties of opening and repairing are joined in the act, we see no objection to joining them in the description of the offence in the indictment. The word mend is merely surplusage.

The judgment is affirmed.


text:
    McVeagh v. Little.
    On the trial of a sdre fadas upon a judgment, evidence of payment anterior to the rendition of the judgment is inadmissible.
    And it is immaterial that the judgment, which was to secure a debt payable by instalments, was entered by the prothonotary under a warrant of attorney.
    In error from the Common Pleas of Chester.

      Jan. 7. On the 1st December, 1841, judgment was entered by the prothonotary, under a warrant of attorney dated in 1834, for the penalty of a bond conditioned for the payment of half the amount of the penalty, partly on the 1st April ensuing the date of the bond, and the residue in ten annual instalments. A sei. fa. having issued, the defendant on the trial, under exception, gave evidence of the plaintiff’s admissions of payment prior to the date of the entry of the judgment.
    This was the error assigned.

      Lewis was to have argued for the plaintiff in error.
    But the court called upon Darlington to support the judgment.
    He argued that the judgment, being entered by the prothonotary under an old warrant of attorney, was not conclusive evidence of the debt, as if on verdict. That it was admitted the court would open the judgment on the affidavit of the defendant, and let him into a defence; and why resort to this circuitous method of obtaining justice?

      Jan. 11.
   Gibson, C. J.

The defendant’s argument would require us to violate one of the most useful rules of the common law, and to overturn a train of our own decisions, beginning with Cardesa v. Humes. And for what ? To save the trouble and expense of two trials, when one might answer the purpose; and, says the counsel, what is the harm of that ? To say nothing of the confusion that would rush in by disregarding the arrangements of the law, and sending the parties before the jury pell-mell, the plaintiff would lose by it the substantial security of the defendant’s oath, which he must, by the regular practice, peril, to obtain an order for the opening of the judgment; and this is an advantage of which the argument would deprive him, for many a man would be willing to set up a defence, and maintain it by the dubious testimony of others, who would refuse to SAvear to it himself. Such a man should not be suffered to disregard an unimpaired judgment against him, and to proceed to a defence on original grounds, as if it were a nullity. The miserable savings of trouble and expense that would accrue from jumbling together distinct matters on the same trial, would be poor compensation for the loss of a security so effective. In England, and our sister states, relief for matter of pretermitted defence is had in chancery, and at an enhanced expense; yet that has not induced the coiu’ts to violate the sanctity of a judgment. To do so, would shake all confidence in the stability of judicial decisions. The counsel has attempted to distinguish the case before us from its predecessors, on the ground that the judgment was confessed neither by the defendant in person nor his attorney, but by the prothonotary, who knew nothing about his defence, and whose confession, therefore, could, at the worst, be no more than prima facie evidence of the demand. What then ? The judgment was not the less a judgment of the court. In the confession of a judgment even on a bond and warrant at the common law, the attorney, though ostensibly appearing for the defendant, is in reality the attorney of the plaintiff, and' no better advised than the prothonotary as to the existence of a defence. Nor does it differ the principle that the judgment was entered for a penalty to secure the payment of instalments. It is equally conclusive of the adjudicated fact, while it stands unreversed, that no part of any of them Avas paid at the day of the rendition. If the defendant would contest it, his course was to make the proper affidavit, stating the specific circumstances of his defence, and the facts SAVorn to would alone be tried. If they were established to the satisfaction of the jury, the judgment avouM stand good for the residue, and only the unpaid instalments would be found for the plaintiff, with stay of execution till the respective days of payment; leaving the defendant to claim credit for payments made subsequently to the rendition, as matter of defence to an application for a summary award of execution, or to a scire facias, should the case require one. But in every case, the law requires him to proceed methodically reddendo singula singulis ; not, as in this case, disregarding what had been adjudicated before. The evidence, therefore, was improperly admitted.

Judgment reversed, and venire de novo awarded.


text:
    Bevan v. Cullen.
    The defendant having pleaded the statute of limitations, die plaintiff replied that the cause of action related to merchants’ accounts, on which issue was joined. The evidence proving that there had been an account stated, the defendant is entitled to a verdict; for accounts when stated cease to be merchants’ accounts within the exception of the statute.
    Where an account-sales has been rendered, and the consignor directs the balance to be shipped, making no objection to the items of the account, he thereby assents to it, and makes it an account stated.
    To take advantage of fraud, or absence beyond seas, as an exception to the bar of the statute, it must be replied.
    The consignor of goods being the legal owner, his dealings with the consignee, as by assenting to an account, bind the equitable owner, though known to the consignee. A. having advanced on goods to B., shipped them to C., who knew B. had an interest. C. rendered an account-sales to A., who assented to it; the account thereby becomes a stated account as to A. and B.
    In error from tbe District Court of Philadelphia.

      Jan. 11, 12. This was an action of assumpsit by Bevan and Humphreys to the use of Frevall against Cullen, James & Co. By the bill of particulars, the claim was stated-to be for certain overcharges made by the defendants as consignees of certain goods at Vera Cruz, one item of which was the difference between the amount paid for duties, and that charged — the payment having been made in depreciated paper, called vales. The other items were for overcharges in expenses, commissions, &e.
    The declaration was on an account stated, and the money counts. Pleas, non assumpsit, statute of limitations, and non assumpsit infra sex annos absque hoc, a promise within six years. The plaintiffs replied merchants’ accounts, which the defendants traversed, and on these issue was joined.
    On the trial before Sharswood, J., it appeared that Bevan and Humphreys had consigned the goods to the defendants, and that a Mr. Curcier was interested in the shipment. By the vessel which carried out the goods, he wrote to Cullen, expressing a desire that all savings that were possible by paying duties in depreciated paper, &c., would be made, and made proposals for continuing the trade on these terms, to all of which the defendants assented. It appeared that Curcier, before the shipment, was aware of the existing practice to pay a certain proportion of the duties in such paper.
    On the 16th December, 1833, an account-sales of the entire shipment, containing all the charges in question, and showing a balance due to the consignors, was transmitted to Bevan and Humphreys. In this they were charged with $6073 37, amount paid for duties. There was evidence that forty per cent, of these duties were received in vales, or paper money issued by the Mexican Government, and that they were selling at a large discount at the time of the alleged payment. These account-sales were received by Bevan and Humphreys prior to January 9,1834, as Curcier stated in his letter to Cullen of that date, though he added sickness had prevented him seeing them.
    On the 10th March, Bevan and Humphreys acknowledged the receipt of the account, but made no objection to any item, or any remark as to the account. They expressed a disappointment in not having received remittances of the balance due on the shipment, and directed defendants, if they had not made remittances, on receipt of the letter, to ship the balance in specie or cochineal by the first vessel.
    Cullen, James & Co. had shipped the balance in specie on the 5th of March, which was received and acknowledged by B. and II. on the 13th May. In this letter they expressed some surprise at the magnitude of some of the charges, but stated the shipment had been made on account of Curcier, to whom they had made advances, which had been repaid, and to whom C., J. & Co. should account for any allowance on the charges, which appeared to him and them to be excessive. Curcier subsequently made objections, stating he had an agreement with defendants to be allowed the benefit of the savings in duties, and also that certain of the charges for commissions should be less than were stated in the account. There were no letters shown from him to C., J. & Co., dated between January 9, and August 1, 1834.
    The writ issued June 29,1840, and the defendants below insisted that the account being stated, at least from the 13th May, 1834, was not within the exception in the statute, and all claim was barred by the statute of limitations.
    His honour, after summing up the evidence, and saying that B. and H. were the legal proprietors, and so far as concerned the interest of Curcier, his authorized agents, instructed the jury that there were two issues: “ 1. Whether the defendants were indebted. 2. Whether plaintiff’s claim was within the exception to the statute under the denomination of merchants’ accounts. That an account between merchant and factor was an account between «merchant and merchant,’ and an action of assumpsit thereon was not barred, nor need any of the items be within six years: 5 Cranch, 15.
    «It is perfectly well settled, however, that an account stated, is not such an account as is intended by the exception in the statute. The account must be an open and unsettled account.
    ■ “It becomes important, then, to inquire what is in law an account stated. It is certain that the mere rendering of an account does not make it an account stated; nor will that effect be produced by the cessation of dealings between the parties. On the other hand, it is equally certain, that to make an account stated, it need not be signed by the parties. The true rule appears to be, that an account rendered, with a balance struck, and that assented to by the party to whom it is rendered, is an account stated.
    “It is not necessary that it should be in the form of an account current, or any particular form.
    “ An account-sales rendered, as in this case, may become an account stated, by the consent of the consignors to whom it is sent. Such assent need not be expressed in words; it may be implied from the conduct of the party. It is the settled law merchant— indeed one of the settled landmarks of the law — that an account rendered is allowed, if it is not objected to without unnecessary delay. The time within which objection must be made cannot be definitely fixed. It depends upon the circumstances of the case, whether an acquiescence or a presumed agreement to the correctness of the account exists. If -it does, and the party does not account for his silence, the account is considered as settled to his satisfaction. The reason for this rule is the same as for that which requires immediate notice to be given to the parties to a bill or note of its dishonour, and other rules of a similar character, which are to be found in the commercial codes of all civilized nations.. Punctuality is the very life of commerce ; and it is more important to the merchant than to any one else, to be immediately apprised of every thing which affects his pecuniary condition. He regulates his enterprises accordingly; and dealing upon the assurance of ascertained gains, he engages in speculations which he otherwise would not. There is most excellent reason, therefore, in the law which requires that notice should be given, within a reasonable time, of objections, if any exist, to an account rendered.
    “ The silence of the party, continued unnecessarily long, is a legal presumption of his assent. But his assent may be presumed from his acts as well as his silence; and if he acknowledges the receipt of the account, communicates with the other party on the subject of the mode of remitting the balance, and receives that remittance without any objection, it is in law an assent to the account. If he had signed the account, or said to his correspondent, “ I have examined and found it correct,” it would have been a stated account. Would either of these acts be any stronger than that which has been done here ? You must not mistake; such account is not conclusive. There are cases in which it may be opened; cases of plain mistake, cases of fraud, or where the party was ignorant of some material fact. But then the burden of proof is on the party who objects to the account. It is prima facie correct, and he must bring his action within six years. If, for example, in this case, the plaintiffs had not known (which, however, cannot be alleged here) that the duties to the Mexican government upon the importation of merchandise, were either in whole or in part payable in a depreciated currency, they doubtless might at any time within a reasonable period after the discovery of the fact, raise that objection. But where the objections made are all palpable upon the face of the account, and ought and must have occurred to the mind when it first met the' eye, no unreasonable delay in immediately communicating them can be tolerated.
    “ I am of opinion, then, and so direct you, that in point of law the plaintiffs have failed to sustain the issue which they have taken upon themselves; to wit, that the subject matter of-this suit is merchants’ account. In point of law the account was a stated account, and that is not merchants accounts within the exception of the statute of limitation. There is no material fact in dispute in the case; as far as regards this question, there is nothing for you to decide.”

      C. Ingersoll, for plaintiff in error.
    The charge of the court excludes all but the item for the duties from consideration; the other items were questions for the jury, whether paid as stated, or properly chargeable. But the radical error is in assuming the acts of Bevan & Humphreys bound Curcier. They were but nominal owners, while he was the real one, which was known to Cullen, ■James & Co., with whom he was in continual correspondence. They could only act for their own interests, or, at the furthest, so as not to affect injuriously that of Curcier. Their situation was like that of mortgagor and mortgagee. Besides, the act of Cullen, James & Co., as to the vales, was a fraud; they bought paper at a depreciation, -with which they paid a debt for us, and then charged us with the nominal amount; Sharp v. Emmet, 5 Whart. 288; and this always is an excepted case. The defendants also, as the evidence showed, were beyond seas.

      McMurtrie and F. W. Gubbell, contra.
    The plea of the statute of limitations went to the whole action. To avoid that, the plaintiffs replied merchants’ accounts, on which issue was joined. If then there was an account stated, they were not within the exception ; Toland v. Sprague, 12 Peters, 300; Ramchander v. Hammond, 2 Johns. 200. Absence beyond seas, or fraud undiscovered, are matters of replication; Clark v. Hougham, 3 D. & R. 322; S. C., 2 Barn. & Cress. 149; Brown v. Agnew, 6 Watts & Serg. 238; South Sea v. Wymondsell, 3 P. Wms. 144. The issue being then simply — were the matters complained of merchants’ accounts ? this court can only look to the correctness of the decision, as it applied to the pleadings; McCulloch v. Norris, 5 Barr, 285. An account, when stated, being no longer merchants’ accounts, was this stated, and when ? An implied assent, without acts, is sufficient, if a reasonable time elapse, but any positive act of assent is at once effective. Here the balance was drawn for, or ordered to be shipped, on the 10th March. This is the very act put as an example, in Toland v. Sprague, 12 Peters, 335; Elliott v. Walker, 1 Rawle, 128. So an entry into a house, without objection to a bill for fixtures, makes the bill a stated account; Salmon v. Watson, 4 J. B. Moo. 73. Upon the issue joined, the judge was then clearly right. The plaintiff relies on the equitable interest of Curcier. That is not averred, nor would it aid, since it would be an impertinence on the record; Commonwealth v. Lightner, 9 Watts & Serg. 117; 5 Watts, 68; and he must stand or fall by the title of the legal plaintiff; 2 Barr, 52; McEuen v. Girard, 2 Rawle, 311; as must all cestuis que trust, unless there be collusion: and the parties here are the proper ones; Griffith v. Ingledew, 6 Serg. & Rawle, 429. He further sets up ignorance. But he knew we claimed for all payments and charges. It was for him to show error; Brown v. Agnew, ut sup., in which he failed as to the vales, and there his own evidence shows he knew that such a profit could be made under the custom of the country, and that we declined allowing him any part of it.

      Jan. 22.
   Rogers, J.

The plaintiff declared for money had and received, and on an account stated. Pleas, non assumpsit; statute of limitations, account stated, absque hoe, a promise within six years. Replication, merchants’ accounts. Rejoinder, not merchants’ accounts; and on this, issue was joined. The principal issue on which the cause was tried, and to which the charge was directed, was merchants’ accounts. In the charge we perceive nothing wrong. The objection on which reliance is placed, is that the account-sales was not transmitted to Curcier; hut to this allegation the answer is altogether satisfactory. Bevan and Humphreys were the legal proprietors of the consignment, and, so far as concerns the interest of Curcier, were his authorized agents. Curcier had but a contingent interest in the shipment, being entitled to the proceeds, if any, after paying Bevan and Humphreys the full amount of their advancement. By the well-settled principle of law and commercial usage, the account of sales is forwarded to the legal owner of the goods; the consignee is not bound to notice the equitable or contingent owner. The presumption is, that the former advises the latter of the state and condition of the consignment, and if he be prejudiced by his neglect, the remedy is against him. Curcier, Bevan, and Humphreys are identical, so far as regards themselves, and the correspondence furnishes evidence that of this the parties were fully aware. Their acts and omissions are his. The court on that was right in instructing the jury the account was closed, not an open or unsettled account, and consequently the plaintiff could not avail himself of the exception in the statute. The suit is brought in the names of Bevan and Humphreys, and could not be brought otherwise, not for the benefit of Curcier, but of Mr. Frevall, whose interest does not appear.

The plaintiff also contends the defendants were beyond seas, and that- there was a fraudulent concealment of the fact that the duties were paid in depreciated paper, and not in specie. But the answer is, that the only issue is merchants’ accounts; that if the plaintiffs intended to rely on these allegations, they should have been specially replied. That in order to prevent the operation of the act of limitations, there must be a special replication, is ruled in Clark v. Hougham, 2 Barn. & Cress. 149, (9 E. C. L. R.;) 3 P. Wms. 144; and Brown v. Agnew, 6 Watts & Serg. 238. That the defendants were beyond seas must be specially alleged, is also plain. As the pleadings now stand, the defendant has had no opportunity of contesting the fact that the parties, or one of them, had returned. It cannot be permitted that the cause should be tried on one issue in the lower court, and on a different issue in this court. The charge of the court is so full on the principal question, that I do not deem it necessary to repeat that which has been there well said.

As this view of the case presents a fiat bar, it would be a waste of time to examine the questions arising on the bills of exception. The evidence there referred to has no bearing on the issue arising on the act of limitation. The result will be precisely the same, whatever course the court may take in relation to them, for in the whole case the defendant is entitled to judgment. *

Judgment affirmed.


author: Bell, J.

text:
    Willing v. Peters.
    Lands devised to be sold, and the proceeds distributed, are thereby converted into personalty. Nor can one only of the distributees, by his election to take as land, work a re-conversion, or give his widow a right of dower. .
    An actual sale under a power works a conversion equally with a devise of the proceeds of land. I
    A trustee cannot, by his covenant to pay the rents, charge the trust-estate; hence he is not liable in account-render under such covenant, where the rents are not so applicable under the terms of the trust.
    A release of dower by a feme covert whose husband does not join in the deed, is void, though the deed was separately acknowledged in due form. — Per Kennedy, J.
    Certificate from the Nisi Prius.

      Jan. 14 and Feb. 9. This was an action of account-render by Maria Willing against Peters, as bailiff and receiver of the rents and profits of real estate. On the trial before the late Mr. Justice Kennedy, the plaintiff gave in evidence the will of Thomas Willing, devising lands to the defendant, Peters, and two others, who died before the matters in controversy happened, in trust, inter alia, for the maintenance of testator’s son William, and his children, and also in trust, “ that if my son William, and Maria, his wife, shall die before either of their children now born, or hereafter to be born, shall attain twenty-one; or if he the said William shall die leaving no widow, and after any one of his children shall attain the age of twenty-one, he having made no last will, then, and in either such cases, the said trustees, or a majority of them for the time being, and the survivor of them, his heirs and assigns, shall and may sell and dispose of the said premises in fee-simple, when they deem it advantageous, and the proceeds thereof shall be divided among the said children, and paid to them at twenty-one.”
    William, the son of the testator, survived his wife, and died August 9, 1821. He left three children, of whom Thomas, the eldest, was married to the plaintiff, came of age October 17, 1823, and died October 13, 1834.
    On the 17th August, 1824, Thomas being then in England, executed a deed conveying to Peters, the defendant, all his real and personal estate in New York, Pennsylvania, and elsewhere, in trust to sell and pay the income to Thomas, the grantor, for life, remainder over.

      On the 4th December, 1838, Maria Willing, the plaintiff, by deed-poll, sepafately acknowledged, her husband not being party, reciting the conveyance by her husband in 1824, and an agreement of even date by Peters, the defendant, to pay her, in the event of her surviving her husband, one-third of the rents and profits of the real estate mentioned in said deed, which she had agreed to accept in lieu of dower, released all her estate and interest in the real estate therein conveyed. On the same day, Peters, by deed reciting this release, covenanted to pay her one-third of the rents, &e. of said real estate, in case she survived her husband.
    It appeared that the defendant held, under the deed of Thomas Willing, several sums of money, being the proceeds of real estate sold prior to the deed of the plaintiff. There were also three pieces of real property in Moyamensing, held by him under the will, but there was no evidence of any receipt of rents subsequent to that deed. The plaintiff also gave evidence that the defendant had received money for the opening of streets through property in Moyamensing, but this, it would seem, was prior to the death of Thomas Willing, nor did it appear that he was entitled to it.
    His honour instructed the jury, that the land having been devised to be sold, was at all events personalty from the time of the sale. The plaintiff having no dower therein, there was no consideration shown to support the agreement; the deed of the plaintiff being a nullity not operating even by way of estoppel, since she was covert and her husband did not join in the conveyance; he therefore directed a verdict for the defendant.

      Rayiold and Randall, for plaintiff in error.
    The defendant holds either under the will or deed, and either way, the wife was dowable, for an equitable estate, in Pennsylvania, is subject to dower. The supposed conversion was immaterial, since the legatee may elect to take as land; Burr v. Sim, 1 Whart. 265; Rice v. Bixler, 1 Watts & Serg. 445. By the deed of 1824, the plaintiff’s husband made that election; Tilghman’s Estate, 5 Whart. 55; Reed v. Morrison, 12 Serg. & Rawle, 18. The invalidity of her deed was immaterial, nor could the other party thereto set up that objection; he was concluded by acceptance; 2 Term Rep. 171; 23 Pick. 83; 1 Met. 180; 9 Serg. & Rawle, 268.

      Cadwalader, contrá.
    The only question was the liability of the estate, or of the defendant, on account of the receipts therefrom. The personal liability of the defendant, under his covenant, is not in question. Even then there must be an averment and proof of the existence of land of which she was dowable. But here the property was either converted by the will, or at least actually converted before the covenant made by the defendant; for it is plain, that supposing Thomas Willing was entitled to part of the damages for opening streets, that was prior to his death. The right to such property gives no estate in the land; Price v. Watkins, 1 Dall. 8; Morrow v. Brenizer, 2 Rawle, 185. Nor could the plaintiff’s husband, by his sole act, reconvert the property. That would require the assent of all interested.

      March 18.
   Bell, J.

The plaintiff, by her narr., claims, at the hand of the defendant, an account of certain moneys received by him as her bailiff and receiver. By the proof in the cause, it appeared the several sums of which an account is demanded are the avails of two houses sold by him, as surviving trustee by virtue of a power created by the last will of Thomas Willing, the elder, and, also, an amount received by him, in his character of trustee, for damages sustained by opening a road through the lots of land situate in Moyamensing township. The right thus to claim rests altogether upon the undertaking of the defendant, by his agreement of the 4th of December, 1838, to pay to the plaintiff, should she survive her husband Thomas Willing, jun., one-third of the rents, issues, and profits of his real estate, situate in Pennsylvania, New York, or elsewhere, and conveyed to the defendant in trust, by the deed of the 17th of August, 1824. '

But several insuperable objections interpose to defeat the plaintiff’s demand for a judgment quod computet. One of these is, that the houses and lands from whence the money received by the defendant is derived, never was the real estate of Thomas Willing, jun. By the last will of his grandfather, already referred to, these houses and lands, in a certain event which has happened, were ordered to be sold by trustees, of whom the defendant is the survivor, and the proceeds equally divided among the children of William Shippen Willing, now deceased, the plaintiff’s late' husband being one of them. Now, by the well-settled rule in equity, land or money directed to be converted by a last will or other instrument, is impressed with the character of the particular species of property into which it is to be transmuted. Thus land ordered to bo sold is regarded as money for every purpose necessary to effectuate the intent of the devisor or donor. The parties to whom the proceeds are to be paid, whether heirs-at-law or strangers, take no estate in the premises which are to be the .subject of the sale,, as has, more than once, been held by this court, after the most solemn and deliberate consideration. Thus it has been decided that a judgment recovered against one of several legatees, among whom the fund, when made, was to be distributed, will not bind his interest therein, for he is seised of no estate in the land which can be made the subject of a lien, and, consequently, that a sheriff’s sale of the legatee’s supposed interest in the land passes nothing to the purchaser: Allison’s Executors v. Wilson’s Executors, 13 Serg. & Rawle, 333; Morrow v. Brenizer, 2 Rawle, 185. The principles upon which these decisions are based are familiar wherever the English system of equity prevails, and have been since frequently recognised by this court: Burr v. Sim, 1 Whart. 265; Smith v. Starr, 3 Whart. 65; Rice v. Bixler, 1 Watts & Serg. 445. It is very true, the parties interested in the fund may elect to accept the land unconverted, and if they do so, will immediately acquire an estate therein. But this must be by some unequivocal act, and when there are more than one entitled, all of them must join in the act of election, otherwise it is nugatory. No intent so to elect was manifested by Thomas Willing, jun., during his life. His deed to the defendant of the 27th of August, 1824, cannot be so accepted. Without any distinct or precise specification, it professes to pass, indiscriminately, both real and personal estate, and as the grantor was seised by descent of lands and tenements, other than those which give rise to this controversy, it is not necessary, in order to make the deed operative, to extend its effect to the latter. But were this otherwise, Thomas Willing’s brother and sister had an equal interest in the proceeds of the proposed sale, and there is not the slightest proof they, or either of them, took a single step towards acceptance of the land before its sale. The property described in the plaintiff’s declaration never having formed any part of .her husband’s real estate, it follows it is not within the covenant of the defendant upon which the plaintiff relies. This conclusion leads to another objection against the plaintiff’s recovery in this action. The consideration which induced the defendant’s covenant was the release of the plaintiff’s prospective right of dower in the lands of her husband. But as she was not endowed of the lands immediately under contemplation, the covenant to pay her one-third part of the rents and profits issuing from them, is null, for want of consideration, and consequently void, even if by any possibility of construction it could be extended to embrace them. This legal result takes from under the plaintiff’s feet the only, ground upon which she could stand, were all other difficulties out of the way, and of itself. justifies the instructions given to the jury by the learned judge before whom the cause was tried.

But, again: It appears the two houses in the city were sold, and the ground in Moyamensing appropriated to the purposes of public highways before the execution of the respective deeds of the plaintiff and defendant. Now it passes my comprehension how a covenant to pay a portion of the rents, issues, and profits of real estate, belonging to a particular individual, can be made to comprehend houses and lands legally sold and conveyed to third persons before the covenant had existence. Were it, then, even admitted or admissible, that a fee-simple interest in the houses and lots descended upon and vested in Thomas Willing, jun., before the sale, that certainly divested it for every purpose, and therefore, when the defendant’s covenant was made, the property sold fell not within the description of his undertaking.

But there is yet another stumbling-block obstructing the plaintiff’s path. This, it will be observed, is not a personal action to recover damages for-the breach of the covenant upon which the plaintiff founds herself, but for an account of moneys belonging to and to be governed by the trust created by the will so often mentioned. Admitting for a moment that the trustee might bind himself personally to pay money to the plaintiff upon the consideration stated, he is certainly powerless to transfer to a third per- ' son, a mere volunteer, without the assent of his cestui que trust, any portion of the trust fund either immediately or prospectively. Such an agreement is in fraud of the trust, and if executory, as here, equity will interpose to prohibit the execution of it. The object of this proceeding is, evidently, to divert a portion of the trust-money from the uses to which it was destined by the instrument creating the trust. This cannot be done even with the assent of the trustee.

Judgment affirmed.


author: Per Curiam.

text:
    Savings’ Institution v. Smith
    Corporations may have a writ of error without bail, but it is not a supersedeas.

      Jan. 15. The plaintiff in error was a corporation, and had not entered bail in error.

      S. V. Smith moved to quash on that ground. By the act of 1817, a corporation cannot appeal without giving absolute security, since bail for the appearance would be nugatory. Now appeals and writs of error are put on the same footing; Schuylkill v. Thomas, 18 Serg. & Rawle, 431.

      Clarkson, contra.
    The object of that act was to place corporations on the same footing with natural persons. This is all we ask. In neither case is the writ a supersedeas without bail. But it cannot be supposed the intention was to deprive corporations of the right of review unless bail absolute was given.
   Per Curiam.

The act of 1817 requires bail in error to be given by a corporation, not to found the writ, but to make it a supersedeas of execution. Corporations are put by it on the footing of natural persons, and any one may sue out a writ of error without bail if he choose to subject his property to execution.

Rule discharged.


text:
    Robb v. Harlan.
    The act of 1842, which declares that «the act of 1713 (Statute of Limitations) shall hereafter not extend to cases where the defendant in any suit shall be beyond sea at the time such cause of action accrued,” is prospective, and does not affect a case where the six years had expired before suit brought.
    In error from the District Court of Philadelphia.

      Jan. 17. Assumpsit for goods sold in 1821-2, the credit for which expired in 1823. Plea, statute of limitations. The plaintiff proved the defendant went beyond seas in 1822, and there remained until 1841, when this action was commenced. The court (Stroud, J.) directed a verdict for the defendant.

      N. B. Browne, for plaintiff in error.
    The statute bars the remedy, not the right; and it is settled the legislature may extend or abridge the remedy at their pleasure. Here no vested right is dealt with, but the bar of the remedy is destroyed. It is plainly extended to causes of action existing prior to 1842, otherwise it cannot operate within six years from its date. o

      S. D. Gilpin, contra.
    The action was gone when the act was passed. Relying on that, the party might have destroyed receipts. But the courts always presume statutes to be prospective in their operation; Helmore v. Shuter, 2 Show. 16; Bedford v. Shilling, 4 Serg. & Rawle, 408; and in Bronson v. Kinzie, 1 How. S. C. 311, it is declared the constitution refers as much to the remedy as to the right, where the remedy is part of the contract.
   Per Curiam.

We do not say that the legislature has no constitutional power to restore a right of action barred by the statute of limitations, which operates not on the right, but on the remedy, except in the case of a right of entry; but nothing less than plain and unequivocal words would convince us that they meant to do so. The act of 1713 had no saving in the ease of persons beyond sea, and the plaintiff’s right of action in this case was completely barred by it when the legislature, enacted the statute of 1842, which declares that the act of 1713 shall hereafter not extend to cases where the defendant or defendants in any suit shall be beyond sea at the time of such cause of action accrued:” words which are plainly prospective, and which, therefore, do not touch the plaintiff’s case.

Judgment affirmed.