author: Coulter, J.

text:
    Laforge v. Jayne.
    A promise to retara a specific sum on demand, borrowed in Fike county cbeeks, is barred by the statute of limitations, where no demand was made within six years frbm the date of the promise.
    An admission of the promise, coupled with averments of a set-off and a promise to pay the balance when able, will not avoid the statute; there being no evidence of ability.
    In error from the Common Pleas of Monroe.

      Dee. 19. Assumpsit on the following instrument: — •
    “ Borrowed and received of J. Laforge one hundred and seventy-two dollars eighty-eight cents, in Pike county checks, which I promise to return on demand. Witness my hand, January 7, 1824.
    1172.88. ■ D. Jayne.”
    Plea, the statute of limitations.
    The plaintiff proved that within six years before action brought a demand was made, when defendant admitted the note, and said he would not plead the statute, and it should be paid. But the witness added that defendant said it would be paid when he was able; that plaintiff had taken some one for the debt; that he had an off-set; and by a memorandum made at the time, it appeared" the words were, he would pay the balance when he could.
    The court directed a verdict for defendant;

      Reeder, for plaintiff in error.
    There is a distinction between promises to pay money and promises to deliver chattels, or do any collateral act on demand. On the former there is a conflict of authorities: 2 Stark, on Ev. 478, Ry. & Mo. 388, holding that a demand being necessary to give an action, the statute runs from thence. So in the case of a bond: Byl. on Bills, 191, n. s. But all the authorities concur where the promise is for other things than money: 2 Saund. Pl. and Ev. 645 ; 2 Saund. 63, n. k.; Bull. N P. 151; 1 Lev. 48; 12 Mod. 444 ; 6 W. 381; 2 Bailey, 51; 9 Pick. 488. In the present case the promise was not to pay money, but to return certain chattels. Even had they been banknotes they would not be money: 4 W. 400.
    Porter, contra
    The promise was to pay in the depreciated currrency, which had been borrowed,, and all such promises are immediately due, and within the act from their date: 2 Saund. 63, b.; 1 Sel. N. P. 118. The demand does not constitute a condition precedent, but merely imports that it is presently due: Byles, 191. But supposing this to be a promise to deliver specific chattels, then a demand must be made within a reasonable time, otherwise it will be presumed to have been made and refused, as in 1 Taunt. 572, the case of consignor and factor. 10 Pick. 112, is express to the point, that the right to demand is barred by the statute. As to the promise, it was not sufficient within our decisions. There was no admission of a debt, but of a right to an account, and even then a mere promise to pay when able.

      Reply.

    If the case was to turn on the presumption of a demand more than six years before action brought, or on presumption of payment, the case should have been submitted to a jury.

      Dec. 26.
   Coulter, J.

The writing or note on which the suit is founded, bears date the 7th day of January, 1824, and the suit was instituted on the 14th day of February, 1843, nineteen years after the instrument was executed. The statute of limitations, which was pleaded by the defendant, is of course a bar, unless there is something in the .terms of the contract, or some acknowledgment by the defendant was sufficient to rescue the case from its operation.

It was contended by the plaintiff below, who is plaintiff in error, that it was an engagement to deliver personal property (Pike county checks, as they are called), on demand, and that, therefore, the statute did not run until six years after demand made by plaintiff, which was not proved to have been made until the 3d of May, 1838. If the note was for the payment of money, and ought to be so construed, the statute took effect from its date; it being well settled that the statute in such case runs from the date, and not from the demand. But if the construction of the contract ought to be as the -plaintiff contends, the statute is nevertheless a bar: for although there is a distinction in the books, between a promise to pay money, and a collateral promise to deliver chattels, or to perform any service on demand, yet it is held that in the latter case the demand must be made in a reasonable time; otherwise such a promise might be kept on foot indefinitely at the will of the ¡promisor; and even the legal presumption of payment in twenty i years, with which the law, for the sake of quietude and repose in old transactions, obliterates even bonds, judgments, and mortgages, would not extinguish a parol contract.

It was ruled in the case of Codman v. Rogers, 10 Pick. 112, that although an action will not lie in some cases without a previeras demand, and that in such eases the statute did not run until demand, that nevertheless the demand ought to be made in a reasonable time, and when no cause for the delay is shown, it ought to be made within the time limited by the statute for bringing the action. This would cut up the plaintiff’s case. The note in this case, it seems to me, ought to be interpreted, an engagement for the payment of money. The language is, “ borrowed and received of John Laforge, one hundred and seventy-two dollars in Pike county checks, which I promise to return on demand.” The return of the same checks could not have been contemplated, because, in the use of them, the party would put them beyond his control or power.

The words “return on demand,” refer, therefore, to the antecedent, “ one hundred and seventy-two dollars.” One hundred and seventy-two in figures, with the dollar mark, is appended in the usual place, as customary in money notes; which, although a small circumstance, indicates the intent of the parties. When the engagement is, to deliver specific goods, or render service on demand, it becomes part of the gist of the contract, and a demand is necessary in order to show when the promisee was ready and willing to receive the goods, or services, which the promisor may at all times have been ready to deliver or perform. The meritorious cause of action in this case was the lending of the $112, as they chose to call the medium of exchange or currency in which they dealt. And there w'as nothing collateral whatever, in the nature of the promise to return what was received and counted as money. At all events, in the judgment of this court, on grounds of public policy, to accomplish the true intent of the statute, as well as on the authority cited, if a demand was necessary before the running of the statute commenced, that demand ought to have been made within six years from the date of the lending.

The acknowledgments made on the 3d day of May, 1838, such as they are, were not sufficient to take the case out of the statute. The defendant spoke of no sum due; said he thought the claim had been satisfied in some way, and spoke of his having off-sets. They come-not within the rule of competency established in Gilkyson v. Larue, 6 W. & S. 213, and affirmed in many subsequent cases. He added, to be sure, that he would not plead limitation; acknowledged his hand, and said he would pay the balance when he was able, or if he could. There is no proof whatever of any ability. In Scales v. Jacob, 3 Bing. 638, the judges of the Common Pleas in England were divided as to the efficacy of such an acknowledgment. Chief Justice Best, however, remarked that if it did revive the debt, it was subject to the condition, and no recovery could be had without proof of the happening of the condition. But in Tanner v. Smart, decided a year afterwards in the King’s Bench, it was ruled that such a promise did not remove the statute, without proof of ability to pay: 6 B. & O. 603. To the same effect is Wetzell v. Buzzard, 11 Wheat. 309.

In the ease of Tompkins v. Brown, it was ruled that a promise to pay when able, unaccompanied with proof of the party’s ability, would not take the case out of the statute, and that the. law was the same whether the promise was made wjthin six years from the cause of action, or after it was barred by the running of the statute : 1 Den. 247.

In this case there was no proof whatever of any ability to pay. It is therefore within the range and fully governed by authority. The plaintiff must take the promise, with the limitations imposed on it by the defendant.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Fire Insurance Company v. The County.
    Deposit notes bearing interest, taken by a mutual insurance company from the members of the corporation, are taxable for county purposes, as moneys at interest. ■>

    And so of stocks in which premiums paid by the insured are invested.
    In error from the Common Pleas of Northampton.

      Dec. 20. Case stated. The question was, whether the property of plaintiff in error was liable to taxation for county purposes ? The plaintiff in error was a mutual insurance company, incorporated by act of Assembly. By the charter, it was provided that the premiums should remain as a pledge for the performance of the covenants by the insured, and should be repaid to -them, with their respective shares of the profits, at the expiration of the policy, after deducting losses and expenses.
    By the usage of the company, the insured, when their premiums exceeded $50, and the parties were in good credit, gave their notes, payable on demand, with interest during the continuance of the policy.
    The property assessed, under the title of “ moneys at interest,” consisted of the premiums deposited and invested by the company, and these premium notes; also, certain shares of stock in the Easton Bank.
    The court gave judgment for the plaintiff.

      Maxwell, for plaintiff in error.
    These institutions are beneficial associations, within the rule of Schuylkill v. Fraley, 18 S. & R. 422. But if the fund is taxable, it must be as capital stock, for this constitutes the only capital the company possesses. It should, then, be assessed on the dividends which may be declared, or else there will be double taxation. [The point that the act did not authorize taxation for county purposes, was argued in this and the following case, on the same ground taken in the case of the Saving Fund v. Yard, ante, 359.]

      Reeder, contra.
    This fund is the contingent fund for paying losses, and is the property of the corporation, as distinct from the capital which belongs to the stockholders. It is therefore within the words of the act. The argument as to double taxation is nugatory. The system abounds with such instances. The state deals with indicia of ownership, wherever found; and it would be vain to inquire-whether the value existed, which is thus represented. No argument can be drawn from the beneficial character of the association, its benefits being confined to the members.

      Jan. 15.
   Coulter, J.

This case was substantially ruled by the decision of this court, at this term, in the Saving Fund v. Yard. It is unnecessary to repeat the reasons given in that case.

The only point of alleged difference is, that this corporation constitutes a sort of mutual insurance company. But it has all the essential ingredients of a moneyed institution, making current profits for the stockholders or mutual insurers. The capital stock of the institution, in this case, is composed in part of the deposite notés (Rhinehart v. Allegheny, 1 Barr, 359), amounting to f53,000, in this case bearing interest, the stock held in the Easton Bank, and the real estate. These notes, which bear current interest, upon the dissolution of the institution, will be apportioned among the mutual insurers, according to the account of profit and loss of the concern, just as the capital of banks is disposed of among the stockholders, upon dissolution. There, as here and in all moneyed institutions, it is only the interest accruing on the capital invested, which is divided before dissolution. In this case, the notes of the insurers stand in the place of money paid in, and they pay current interest.

Tbe argument, that the shares of the stockholders or insurers may be taxed individually, and that therefore the aggregate amount in hands of the corporation cannot be taxed, was much pressed. But that objection, and the authority on which' it rests, was considered in the Saving Fund v. Yard.

Judgment affirmed.


text:
    Easton Bridge v. The County.
    The surplus fund of a bridge company (incorporated) invested in mortgages and bank-stock, is taxable for state and county purposes, although the dividends on the stock of the company are also taxed for the same purposes.
    The property of a corporation chartered by Pennsylvania and New Jersey is taxable under the laws of Pennsylvania.
    In error from the Common Pleas of Northampton. -

      Dec. 20. The question was the same as in the preceding case. The plaintiff in error was a corporation chartered by Pennsylvania and New Jersey, to construct a bridge over the Delaware.
    The property on which the assessment was laid consisted of money at interest and bank-stock in the Easton Bank. It was composed of funds drawn from the profits of the company during successive years, and constituted “ a growing fund,” authorized by the charter to provide against decay, and for the rebuilding and repairing of the bridge.
    The tax was laid for state and county purposes; and it was stated that the dividends were taxed for state purposes in the hands of the company, and for county purposes in the hands of the stockholders.
    The court gave judgment for the plaintiff.
    Porter, for- plaintiff in error,
    argued that the dividends alone were taxable; that the contingent fund was in like case with the bridge, its abutments, and toll-houses, which were not taxable: 13 S. & R. 422; 8 W. & S. 834; 6 Ib. 378; 6 Barr, 70. The point was in effect decided in 7 Law J. 187. The company being incorporated by two states, each of which has concurrent jurisdiction, it could not be taxed without their concurrent authority-: 4 Pet. 514.

      Reeder, contra.
    Having submitted themselves to the two jurisdictions, they must take the consequences. Certainly, this state is not ousted of her right.

      Jan. 15.
   Coulter, J.

All the errors assigned in this case were considered and disposed of in The Saving Fund v. Yard, and the Ins. Co. v. Northampton county, both decided at this term. Save only that in this case, the Bridge Company is chartered by the state of New Jersey, from which it is contended to be a sort of chartered libertine, owing no allegiance to Pennsylvania, although its place of business, and its receipt of profits, or toll-gathering, are in this state. But there is nothing in the objection. This state can tax all that is within its bounds, and which receives protection from its laws, unless exempted by the constitution of the United States, or of this state.

The company is chartered by this state, could not exist without license, nor could the bridge have been built, nor can it be maintained, by the laws of New Jersey alone. That New Jersey may impose a tax is probable. Of that, I say nothing whatever.

The company has assumed its own responsibilities, 'and must abide them: one of which is to be the subject of taxation in this state.

Judgment affirmed.


author: Bell, J.

text:
    Johnson’s Appeal. Simpson’s Appeal.
    Though a decree is not pursuant to the prayer of the petition, yet if it was proper under the circumstances appearing on the record, and no objection was taken below on that ground, this court will not reverse.
    Where a trustee omits entering the security required on his appointment by the court, they may dismiss him and appoint a receiver.
    An answer admitting a loan of part of the trust funds on personal security, authorizes a dismissal of the trustee for mismanagement; nor is it material that some of the eestuis que trust approve of the loan.
    The Common Pleas has jurisdiction of a testamentary trust vested in the trustees nominatim, although they are also executors.
    The decree of the court dismissing a trustee on his own petition, is conclusive; although the petition stated he was trustee under a will for A., when in fact he was trustee for A. for life, and for her legal representatives after her death, and notice was given to A. alone, pursuant to the order of the court; and although the trustee appointed in his stead did not enter the security required by the decree appointing him in place of the discharged trustee.
    To avoid a decree for fraud, that must be put in issue by the pleadings.

      From the Common Pleas of Montgomery.

      Deo. 26. In 1820, Dull bequeathed to Jones, Roberts, and McNeill, or the survivor of them, in trust, to place the fund at interest on real security, and directed his executors to pay the interest of one part thereof to his daughter Mary, for life, and after her death, the principal among her legal representatives equally. And by a subsequent clause, he appointed the said Jones, Roberts, and McNeill, executors and trustees of his will.
    These trustees having been discharged by the court, Simpson, one of the appellants, was appointed trustee and received the fund.
    In 1846, Simpson petitioned the Court of Common Pleas, setting forth that he had been appointed trustee for Mary McMinn under the will of Dull, and after stating an account, prayed to be discharged from a further execution of the trust. A rule was then granted on Mary McMinn to show cause why the prayer should not be granted. On the return of this rule Mary McMinn filed a petition stating that Simpson had been discharged, and recommending the appointment of Johnson in his stead. The court then made an order appointing Johnson trustee in the stead of Simpson, approving of one Bradshaw as security. And on the same day, they made a decree reciting that a receipt from Johnson to Simpson for the trust funds had been exhibited to the court, and ordering Simpson to be discharged from the duties of the trust.
    It will be observed that in these proceedings no mention was made of the fact that any party other than Mary McMinn was interested in the trust.
    In October, 1847, four of the children of Mary McMinn filed a petition in the Common Pleas, setting forth the will and the decrees of the court above stated, and averring that Johnson had not given the security required, that they believed the fund was unsafe in his hands, that he was mismanaging it in not investing it in the manner required by the will, but had loaned a portion of it to Mary McMinn, and intended to pay her the balance. That they were interested in the matter, but had received no previous notice of the proceedings of the court. They therefore prayed the court to annul the decree discharging Simpson, and to issue citations to Simpson and Johnson requiring a statement of the manner in which the funds were invested, and for general relief. These citations were issued, and a rule taken on Simpson to show cause why the decree discharging him as trustee should not be annulled.
    The answer of Johnson denied that he was mismanaging the fund, but admitted he had loaned $690 to Mrs. McMinn and held her obligation for the same. This amount was one-half of the whole fund.
    A'petition was then presented by four of the children of Mary McMinn, approving of the loan by Johnson to Mary McMinn.
    Simpson not appearing to the citation, the petition was taken pro confesso, and a reference made to take proof of the facts there alleged, and to report an account.
    This report, finding a balance due by Simpson, and the facts as they appeared on the records of the proceedings detailed above, was confirmed.
    A rule was also taken on Johnson, to invest the trust funds and give security, which was extended by the court; but not having been complied with, the court dismissed Johnson, and appointed a receiver, to whom they required payment of the trust fund, and delivery of the securities to be made. From these decrees, appeals were taken.
    Boyd, for Johnson, and Watts, for Simpson,
    argued that, the court had not jurisdiction, the trust being testamentary and given to an executor; that if it had, in eases of such trusts, the court could not proceed against Simpson after his discharge; that the decree of discharge was conclusive, as to every one: 1 Wh. 105; 5W. 116; 2 Ib. 380; 5 Barr, 428; that it was the duty of the court, and not of Simpson, to see that security was entered by Johnson: 3 W. & S. 353.
    That the proceedings were joint, when they should have been distinct. That a replication to Johnson’s answer was necessary, and proof should have been taken before a decree; and that the decrees were not according to the prayer of the petition.

      Broohe, contrd.
    I Barr, 459, disposes of the question of jurisdiction. The proceeding was to vacate an order void for want of conformity to the statute, and for fraud. To enable the court to grant a discharge, all parties must be notified: Act 1836, § 22. Here, no one but Mary McMinn was notified. Hence, the decree discharging Simpson was void. It was also void for fraud; for it is clear from the record, the court could not have made the decrees but under the belief the security was given by Johnson. On this ground, that decree could be opened, as all judgments or decrees may be: Mit. Eq. Pl. 93; 1 Barr, 139. No replication was wanted; the facts were all admitted by the answer.

      Jan. 8.
   Bell, J.

The 38d section of the act of 14th June, 1836, provides that the several Courts of Common Pleas shall have the same powers and authorities, and the manner of proceeding to obtain the appearance of persons amenable to their jurisdiction, in cases of trust, and to compel obedience to their orders and decrees, and enforce execution thereof, shall be the same as are now by law vested in and provided for the several Orphans’ Courts of this commonwealth.” The proceedings here appealed from were had under this act. But they are deformed by the confusion of process and incongruity of action which too often characterize the practice of our tribunals, when the prescribed path diverges from the -course of the common law. This unfortunate result of carelessness and inattention mars the symmetry of our system, and often creates difficulties -which even a limited regard to wholesome legal forms would avoid. The statutes which define the jurisdiction of the Orphans’ Courts, and direct the mode of its exercise, had it not in view to cumber the proceedings of the courts with the elaborate forms of equity pleading, or to require the niceties which time has introduced into the forms used in chancery. But it was certainly to be expected that some attention would be paid to the simple and easy mode of procedure furnished by the 57th section of the act of 1832. That directs, that on the petition of any person interested, setting forth facts necessary to give the court jurisdiction, the specific cause of complaint and the relief desired supported by oath or affirmation, the Orphans’ Court, or any judge thereof in vacation, may award a citation returnable at a day certain, &c.; and proceeds to prescribe the manner of its service, return, and the subsequent steps to he taken in the cause. Instead of following these directions, we have, in this instance, an unseemly jumble of the citation given by the statute and the rule to show cause of the common-law courts, the latter, too, requiring the respective defendants to answer why certain things should not be done and certain remedies administered, neither suggested nor specifically prayed for by the petition which initiated the inquiry. These are irregularities that might almost be termed gross. But as they involved no positive injury to the defendants, and no objection to them appears to hare been taken below, "we do not think they present a ground for reversing the decree. The 19th section of the act of 1836 empowers the court to compel a trustee to perform such acts as are required by or consistent with the duties of the trust; and the 28th section confers the right, generally, to make such orders and decrees as shall be according to law, or the terms and intent of the trust. These and other provisions of the statute confer plenary-power to decree, as was done in this instance, with a single exception, which will be presently noticed. On the return of the writs, it being discovered the specific prayer of the petition and the command of the citations were too narrow to cover the whole subject of complaint, or that the appropriate remedy was not prayed, the proper practice would have been to prefer a new petition, which, like the supplemental bill in chancery, is considered merely as an addition to the original bill. This was not done. But as the defendants were regularly cited under a petition containing a prayer for general relief, we are not inclined to regard such a departure from correct practice as had place here, though certainly not to be commended or encouraged, as fatal to the validity of the decrees pronounced. Where no actual injury is inflicted, we would, for the purpose of sustaining proceedings otherwise correct, view the motion for the rule as a supplemental petition, and the rule itself as in the nature of' a citation. This, to be sure, is conceding much to the looseness which prevails in the courts, but we are compelled to it by necessity and the desire of preserving correct decrees arrived at by an irregular process. We do not mean, however, to say what would be the result were exception regularly taken, at the proper time, in the subordinate court.

These remarks sufficiently answer the appellant’s third specification of error, namely, that the rules granted and the various decrees made thereon, are not in conformity with the prayer of the petition.

The second specification, complaining that the proceedings against the defendants were joint, is unfounded in fact. It is true there was but one petition, but it prayed for a distinct citation against each of the defendants, which was accordingly awarded, and all the subsequent steps, though parallel, were severally taken against the alleged defaulting trustees. There was, undoubtedly, incongruity in treating both as subsisting trustees at the same moment of time, since, if Simpson was the trustee, Johnson was not, and vice versa. But as it will presently be shown, the order reinstating Simpson was illegal and void — the proceeding against Johnson is not impeachable on this ground.

Nor was there error in decreeing against Johnson before replication to his answer. When first appointed a trustee, he was directed by the court to give security for the faithful execution of the trust. It was entirely competent to the court to make the order; yet the new trustee, though he received the fund from his predecessor, altogether neglected to comply with it. A rule to enforce it was granted on the 25th of October, 1847, which in effect was made absolute on the 15th of the succeeding November, when the time for compliance was enlarged until the 27th of the month. But compliance was still refused or neglected up to the 81st of December, when he was dismissed from the office of trustee. His continued contempt of the order of the court for so long a period, thus jeoparding the safety of the fund, not only justified the action of the court, but imperatively called for it without reference to the answer. But there was nothing in the answer requiring a reply. It does not attempt a denial of, and therefore admits his neglect to give security; and it unequivocally states the mismanagement of the trust fund, by loaning it on personal security, directly contrary to the direction of the instrument by which the trust was created. The case may in fact be regarded as having been heard on bill and answer, and this is equivalent to a demurrer to the answer.

The petition of Sybilla. Armstrong and others could work no difference in the duty of the court, for they had no power to alter the law of the trust. It is suggested they are under coverture, but whether or not, it is enough that others having an interest in the ultimate safety of the fund, have invoked the aid of the law.

What has been said, disposes of the whole case, so far as Johnson is concerned, except the objection raised to the jurisdiction of the court. This is based on the statutes regulating the respective jurisdictions of the Common Pleas and Orphans’ Courts, in reference to trusts. There has, upon this point, been some confusion of legislation; and the attention of the courts has consequently often been called to the consideration of it. It has been so thoroughly investigated in the decided cases, that a repetition of the argument would be more than superfluous. The result of them is, that where a trust created by will is annexed to the office of executor ratione officii, the jurisdiction is in the Orphans’ Court; but where it is devolved on a person nominatim, and not merely as executor, the control of the trust is in the Common Pleas, though the same person be also named executor. In Wheatly v. Badger, 7 Barr, 459, the Chief Justice, after discussing this question of jurisdiction, points out the difference between the duties of a general trustee and those of an executor, and suggests that perhaps the only case in which there is an inseparable union, is where the trust is given to the executor by the style of his office, and not by his name — where it is given to the officer, and not to the man; and Baird’s case, 1W. & S. 290, shows, that if confidence be reposed in one nominatim, in respect to a particular administration of the trust, though the same person be authorized, as executor, to administer it in another way, at his discretion, the supervision of the trustee remains to the Common Pleas, until at least the executor, as such, exerts his authority over the subject. In that case, a testatrix devised all her estate to her son W. in trust, to apply the income to the separate use of her daughter E., and afterwards, by the same will, empowered W., as her executor, to sell any part of her estate, and to put the proceeds at interest for the same purpose; and it was held the jurisdiction resided in the Common Pleas,-no part of the property having been sold. The court declined to express an opinion as to which of the two courts cognisance of the subject would belong, in the event of a sale; though I confess I can see no good reason why a jurisdiction, once attached, should be ousted by a subsequent event, not affecting the continuance of the trust. The principle of that case embraces this. Here the testator inter alia bequeathed as follows : — “ The remaining four parts or shares I give to my son-in-law, Dr. John Jones, John Roberts, Esq., and Hiram McNeill, all of the county of Montgomery, or to the survivors or survivor of them, in special trust and confidence, nevertheless, that they, the said John Jones, John Roberts, and Hiram McNeill, shall and will place the said four shares or parts out at interest, on land security, and one-fourth part of the interest thence arising, I order my executors to pay annually to my son. The interest of one other of the said parts or shares, I order my executors to pay to my daughter Mary, during her natural life; and at her decease, I order my executors to pay the principal sum of one of the said four parts to the legal representatives of my daughter Mary, in equal portions.” By a subsequent clause, the testator appointed “Dr. John Jones, John Roberts, Esq., and Hiram McNeill,” to be “the executors and trustees” of his will. It is thus seen that the custody of the fund is intrusted to three trustees by name, and not by virtue of their office of executors. Though they are afterwards directed to pay the produce of it, as executors, this cannot effect a change of the character in which they hold it. In Wheatly v. Badger, the devise was to A. B., executor and trustee, in trust, to improve the estate, and, at an appointed and convenient time, to divide and distribute the whole among particular persons, in particular proportions. The question was one of jurisdiction; and the court say, “ the person who was appointed executor was, with the same breath, appointed a trustee for purposes not within the range of an executor’s ordinary duties; and distinct offices were united in the same person, which, however, have no natural connexion, and are easily separable.” “It would be as absurd for a trustee to attempt the duties of an executor, as for an executor to attempt the duties of trustee; and it is, therefore, the business of the court to separate the two offices, in a question like • the present, reddendo singula singulis. As executor, he was to pay the legacies; as trustee, he was the devisee and depositary of the legal title for the accomplishment of confidential purposes, with which the office of excutor has no necessary connexion.” Every word of this reasoning is applicable here. This proceeding was to secure the principal sum, and not to enforce the payment of the interest to the legatees. That duty belonged to the persons nominated as trustees; this was incumbent on them as executors. Though it be conceded that the latter is cognisable in the Orphans’ Court, it does not follow the former must be so, more than if the individuals authorized to invest the money for the benefit of the legatees, were persons different from those directed to disburse the accruing interest. These functions are essentially different, and may be separately exercised. They are therefore, as in the two cases referred to, to be treated as residing in.distinct persons, under the familiar principle that the same person, acting in several capacities, is to be regarded, in respect to the subject-matter of his rights and duties, as different individuals. At all events, this is the most that can be claimed for the appellants.

The result is that, though the decree against Johnson was reached through some irregularities, the record presents nothing by which it can be fatally impeached.

But there is a vital objection to the proceedings against Simpson, Having duly settled his account, in pursuance of the 22d section of the act of June, 1836, he presented his petition to the proper court, praying to be discharged from the office of trustee. Notice of this application was, in obedience to the direction of the court, given to Mrs. McMinn, as cestui que trust. On the return of the rule granted for this purpose, she appeared, and by petition, after assenting to Simpson’s discharge, prayed the appointment of Johnson as his successor. Accordingly, on the 16th of November, 1846, the court appointed Johnson “ trustee for the said Mary McMinn under the said will, in the place of the said Edward Simpson, agreeably to the prayer of the said petition,” and approved of one Bradshaw as his surety, though no distinct order for security had been made. On the same day, Simpson having exhibited Johnson’s receipt as trustee for the whole of the trust estate and effects, the court directed it to be filed, and ordered “ that Edward Simpson bo discharged from the duties of the said trust.” Nearly a year after this, viz: on the 3d of October, 1847, new parties appeared by petition, and, after reciting the prior management of the trust, prayed the Court of Common Pleas to annul the decree discharging Simpson, and to order both him and Johnson to exhibit an account of their respective administration of the trust. The court entertained the petition, and, after the proceedings to which reference has been made, on the 25th of October revoked and annulled the order of discharge of the 16th of November, and appointed an auditor to state an account against Simpson. The auditor having performed this duty, by reporting an account copied from that filed by Simpson himself, on the 31st of December, 1847, the court dismissed Simpson and Johnson as trustees, and ordered them to deliver to a receiver the trust-money, books, and papers in their hands. To enforce this order, a writ of sequestration was granted the same day.

The avowed object of this procedure is to make Simpson liable for the fund, which, more than a year before, he had paid to Johnson as his successor in the trust. Was it competent to the court to do this ? The grounds upon -which it was asked by the petition of the complainants, are, first, that notice of Simpson’s application was not given to all the parties interested in the trust; and, second, that Johnson had not given security as trustee, at the time the trust fund was paid to him by Simpson. Upon these suggestions the court seems to have acted. But what is this but an attempt to correct the bygone mistakes of the court itself at the expense of the party ? a thing not within its power, as is proved by Hassler’s Appeal, 5 W. 176, and by reason independently of authority. There, the effect of the new decree was to fix on a party a debt he had never contracted to pay; here, it is to compel him to pay over again a sum before paid under the order of the court. This is sought to be justified by imputing to the former trustee the oversights committed not by him, but by the tribunal having jurisdiction of the subject. By Simpson’s petition, the will creating the trust was brought distinctly in view, and it thus became the duty of the court to designate the persons to whom notice of the application should be given. Mrs. MeMinn, alone, was designated, and upon her notice was accordingly served. In this there is' no pretence that any imposition was practised or concealment attempted by Simpson, and, consequently, lie ought not to be held responsible for the want of knowledge complained of by the petitioners. So, too, it was incumbent on the court to see that the substituted trustee had given the required security before discharging the prior one: Comth. v. Forney, 3 W. & S. 353; Lockhart v. John, 7 Barr, 137. It was no part of Simpson’s duty to instruct the court what it ought to exact. It was sufficient for him that his action in the premises was approved by the proper jurisdiction. This, in the absence of fraud, is sufficient for his protection, and, consequently, the decree of discharge is conclusive, and cannot be unravelled at his expense: Wimmer’s Appeal, 1 Wh. 105; Hassler’s Appeal, 5 W. 176; Catlin v. Robinson, 2 W. 380; though, perhaps, a mere mistake in a decree is amendable, when the rights of an innocent party are not compromised by the correction.

But the appellees seek, in this court, to sustain the decree appealed from, on the ground of imputed fraud practised by Simpson, Johnson, and Mrs. McMinn, in procuring the decree of discharge. Questionless, a decree obtained by fraud may be impeached by original bill, even without the leave of the court (1 Pr. Wms. 736; 2 Ib. 73; 3 Ib. 111), but then the fraud used in obtaining the decree is the principal point in issue, and necessary to be established by proof, before the propriety of the decree can be investigated. When once shown, the court of chancery will restore the parties to their former situation, whatever their rights may be: Birne v. Hartpole, 5 Bro. P. C. 197, Toml. ed. But the bill must set out the circumstances of the fraud. When this is done, the decree cannot be pleaded in bar, without proper averments, negativing the fraud, supported by an answer fully denying the charge of the bill: Wichalse v. Short, 3 Bro. P. C. 558, Toml. ed.; S. C. 2 Eq. C. Ab. 177 ; 2 P. W. 74 ; 6 Ves. 596; Mit. Eq. Pl. by Jeremy, 92-4, 239, 255. In our case, however, the petition contains no hint of fraud committed by the defendants, nor does the record furnish any evidence of its existence. In the absence of such suggestion, no plea or answer was requisite. Simpson might well deem himself safe in resting on the inviolability of the decree discharging him, and this may account for his non-appearance. Were there even proof of fraud, it ought not to affect him here, for he had a right to know it is alleged, and thus have an opportunity to put it in issue before evidence of it can be received. It would be extremely harsh and unjust to charge a trustee on the foot of dishonest practices, without notice of an intent to impeach his conduct on that ground, and an opportunity afforded to make his defence. But such would be the result were we to affirm this decree for imagined fraud, since it does not appear that fraud in Simpson was averred even viva voce in the court below.

Should the appellees deem this ground tenable in point of fact, they may, perhaps, put themselves in a position to show it, by a bill properly formed. I say perhaps, for I will not affirm that, certainly, this course may be pursued. But, in the mean time, the decree, so far as it touches Simpson, must be reversed.

Decree as to Johnson affirmed, and the decree annulling the decree discharging Simpson, &c., reversed.


author: Rogers, J.

text:
    Banes et al. v. Gordon.
    Where the terms of an administrator’s sale of land -were, that the purchase-money should be paid one-half cash, and the balance in one year, secured by bond and mortgage, the purchaser failing to comply is discharged if a re-sale be made on terms requiring a cash payment of the whole of the purchase-money.
    An order annulling a confirmation of sale and directing a re-sale, does not rescind the contract.
    In error from the Common Pleas of Bucks.

      Dec. 26. This was an action by an administrator to recover the difference between the price at tvhich the defendants’ intestate purchased certain real estate sold under order of the Orphans’ Court, and that which the property brought on a re-sale.
    The first point made was, that the sale had been set aside, and hence the defendants were discharged. But the fact was, that on the petition of the plaintiff, setting forth the non-compliance by the purchaser, the court, upon a rule taken on defendants, had annulled the order of confirmation, and granted an order for a resale.
    , The second was, that the conditions of the first sale were one-half cash on delivery of the deed, and possession on or before April 1st, 1842, the balance to be secured by bond and mortgage, payable one year thereafter. The conditions of the second sale were, that the whole of the purchase-money should be paid on April 1st, 1843, when the deed and possession would be delivered. It did not appear from the record that the court had in their orders fixed the conditions of either sale in these particulars.
    Krause, P. J., told the jury, if the terms were harder in the second than in the first sale, that fact reduces the damages, or denies them, according to the evidence.
    The other points were but faintly pressed, and are deemed immaterial.

      E. J. Fox, for plaintiff in error.
    On the first point argued, there had been a rescisión of the contract. On the second he cited Paul v. Shallcross, 2 Raw. 326, as directly in point, deciding that a second sale must be clogged with no conditions different from the first, which are likely to lower the price, if the purchaser at the first is to be held liable.

      Du Bois, contra.
    There could be no re-sale while the first was confirmed. 2d. The administrator is the officer of the law, acting under the decree of the court which declares the conditions. There is no material difference between these conditions, and the jury have allowed liberally for whatever may have been the injury by a deduction from the damages.

      Dec. 30.
   Rogers, J.

Had the court below undertaken to annul the sale, as the plaintiff in error erroneously supposes, the plaintiff would have had no right of action, for that would clearly be a rescisión of the contract at his instance; but the order of the court is confined to annulling the confirmation of sale, and this was necessary before a re-sale could be had. The order was on notice to the defendants, and without objection on their part. Had they appeared at the hearing, and complied or offered to comply with the conditions of sale, the rule would without doubt have been discharged by the court. After confirmation of sale, and failure on the part of the purchaser to comply with the condition, the administrator had two courses to pursue; either to compel the payment of the purchase-money by action, or to have the confirmation of sale set aside, and proceed to a re-sale of the property. Having adopted the latter method, as they unquestionably had a right to do, the only question is, whether the plaintiff had a right of action against the purchaser at the first sale, the plaintiff having undertaken to vary and alter the terms of sale essentially at the re-sale. [His honour here stated the two conditions.] In Paul v. Shallcross, 2 Raw. 326, it is ruled, that to charge the purchaser at the first sale, the second sale must not be clogged with terms likely to lower its price. The objection is not to the measure of damages, but to the action itself. To apply that principle to this case, the terms of the second sale would be likely to lower the price, because it might, and doubtless would, exclude a class of purchasers, who would otherwise be bidders at the sale. There is a great difference between paying one-half or the whole of the purchase-money, at the time the deed is delivered and possession taken. To refer the whole case to the decision of the jury would introduce an uncertain and ever variable measure of damages, whereas the only measure of damages is the difference between the price of the first and second sale. Here it will be remarked the terms of the second sale are fixed by the plaintiffs themselves, without the sanction of the court. What will be the rule when the court, under a view of all the circumstances, with proper notice to the purchasers, prescribes the conditions of the second sale, it is unnecessary to decide.

This view of the case renders it unnecessary to notice the other objections, except merely to observe they have not been sustained.

Judgment reversed.


author: Burnside, J.

text:
    Richardson v. Richardson.
    Where one of two executors settled a separate account prior to the act of 1834, showing a balance in his hands, the next of kin may sue for Ms share of the undisposed surplus since that act, though the co-executor was then living.
    A settlement in the Orphans’ Court of a distribution account is not necessary before the common-law action can be maintained, nor is a discharge from a citation to settle such an account, a bar to the action.
    In such action, there being no account of the disposition of the funds, or proof as to the receipt of interest, the court directed the jury to charge interest on the balance of the administration account up to the time when the first legacy was due — after deducting that, to charge interest on the balance up to the maturity of the second legacy, and so on — and the judgment w#s affirmed. (The legacies in this case always exceeding the amount of the interest.)
    Where an administration account was settled in 1818, an action for the undisposed surplus by next of kin in 1844 is not barred by lapse of time, where all the legacies were not paid or payable until 1827.
    In error from the Common Pleas of Bucks.

      Dec. 27. In 1814, Joseph Richardson bequeathed $2,000 to each of his five daughters, payable at eighteen. He named two executors, whom he also appointed guardians of his children, who severed in tlioir accounts. One of them, William Richardson, filed hife account, which was confirmed in 1818, showing a balance in his hands of $7,057, interest from 1816, which be retained to pay the legacies of four of testator’s daughters. He died in 1832, and the same year his administrators, the present defendants, filed an account of his guardianship, showing a payment of the legacies to the four daughters, with interest from the time they fell due, the last payment being in 1827; which was confirmed, and showed a small balance in his hands.
    In 1835, the plaintiff petitioned in the Orphans’ Court for a citation to the administrators of William Richardson, to settle his account as executor of Joseph Richardson. The answer, among other things, denied the jurisdiction, alleging it to be in the Common Pleas; and the court discharged the citation.
    In 1843, similar proceedings were had against the executors of one of the administrators of William Richardson, with like result.
    In 1844, Watson, the co-executor, died; .but this action was brought before that event happened.
    The present plaintiff was a son of the original testator, and claimed a share of the undisposed surplus of the estate. There was no evidence what disposition the executor had made of the funds, nor any evidence that he had received interest.
    Krause, P. J., directed the jury to charge interest on the fund in William Richardson’s hands, from the time it was to draw interest according to the account confirmed in 1818, up to the time when the first legacy became due; add this amount to the principal, and deduct the legacy; and so on for each of the subsequent legacies. (In no instance did the interest equal the principal then due for the legacies; hence, compound interest was never charged.)
    The case was argued last December Term, and now by

      Ross, for plaintiffs in error.
    The right to sue passed to the surviving executor of the original testator: Wms. on Ex. 134-5. 2. More especially cannot the plaintiff maintain this action under the act of 1834, which has been settled by 7 Barr, 315, and cases there cited. By it the right is vested in the adm. de lords non. 3. There should have been a prior account settled in the Orphans’ Court, to determine the amount due; for this action is for assets accruing since the account of 1818; and that court is the proper tribunal to settle disbursements and commissions: 1 Pa. 282; 1 W. 235. 4. The money was received, if at all, as guardian: 1 W. 370; 7 Barr, 459. 5. The decision of the Orphans’ Court was conclusive that there was then nothing which the executor or guardian had to account for; and it cannot now be collaterally examined. 6. The lapse of time had barred the claim, by presumption of payment. In 1818, the account was filed; and this action ivas brought in 1844. The filing of an account does not rebut this presumption: 2 Penna. 97. 7. The court allowed whaf was equivalent to rests, which are never to be allowed unless for corruption, Avhich is not pretended here: 5 Barr, 87. Partial payments in the mean time, make no difference: Ib.; 5 Raw. 323 ; 1 Binn. 199; 2 Rawle, 305; 1 Ashm. 305.

      Du Bois, contra.
    The action lies exclusively against the executor who settles a separate account, and who has alone received the fund: 5 W. 225; 16 S. & R. 129; 8 W. 483. The cases cited apply where there has been no account settled. 2. This estate was in course of settlement prior to 1834, and there was the act of 1807, 4 Sm. 402, which authorized this action; hence the operation of that act is excluded by § 70, and the cases cited do not apply. 3. An account had already been settled, and the only object ivas to recover interest and surplus on the amount admitted to be due, which constituted a personal debt of the executor: 5 Barr, 508. 4. This was in his hands as executor, and not as guardian. In the latter capacity, he held only so much as was the property of his ward. 5. The decision was on the point taken by the answer, that the remedy was in the Common Pleas. 6. The time to create a presumption of payment did not begin until the youngest child came of age, which was in 1831, and a recovery had been sought since 1832. Nor could the next of kin have sued until the last legacy was paid. 7. The rule as to interest was laid down in 8 S. & R. 458 ; 8 W. & S. 17. Here, too, the executor did not show what he had doné with the fund: 5 Raw. 333.

      Jan. 22.
   Burnside, J.

It is a general rule, that if there are several executors appointed by the testator, who prove the will, and one dies, those who survive cpimlude the trust. In such case no interest is transmitted to the representative of the deceased executor. Both executors may sever in the receipt of money and the execution of the trust; and that was the case here. The evidence is clear that John Watson and William Richardson, who were the executors of the estate and testamentary guardians of the children of Jos. Richardson, deceased, did sever in the performance of their duties. They settled separate administration accounts, which is allowable by our law. It is equally clear that all the funds of the estate went into the hands of Richardson, except $2,000 for the youngest child when she should come of age, which Watson took the care of. If authority were wanted in a ease so plain, it is found in Barclay v. Morrison, 16 S. & R. 129, where it was held that where two executors separately administered different parts of a testator’s estate, and one died, his administrators may settle a separate account of such deceased executor. Doebler v. Snavely, 5 W. 225, further settles that, upon a settlement of a joint administration account of two executors, and the subsequent death of one, an action lies against the personal representative of the deceased executor to recover a legacy under the will of his testator, upon the allegation and proof that the funds for the payment of the legacy came to the hands of such executor separately, because, says Mr. Justice Rogers, the actual receiver is alone liable to pay legatees. In such ease there is no necessity of joining the other executor: 1 Salk. 318. This disposes of the most material question in the case.

2. It is further objected that..the plaintiff being a residuary legatee, he has no power to sue for his share of the residuum, but that there ought to have been an administrator de bonis non. There were no debts to pay, and the action is brought to recover the residuum not disposed of by the will, the accumulation of interest in the hands of William Richardson at his death. The legacies were all paid as the will directed. The act of 1807, 4 Sm. 402, provides, “where any person shall hereafter die, having made and executed any last will and testament, and shall not therein have disposed of the residue of his or her personal estate, the executors therein named shall distribute such undisposed residuum among the next of kin, agreeably to the intestate laws of this commonwealth.” Independently of this act, the executor in Pennsylvania has been considered a trustee for the next of kin: Wilson v. Wilson, 3 Binn. 557. In that case an action for money had and received, was held to lie against an executor to recover a distributary share of the testator’s estate not disposed of by the will, and which had come to the executor’s hands, as trustee.

3. It is alleged that no action, can be maintained either by a personal representative of Jos. Richardson, or by any one of the residuary legatees, until William Richardson’s administrators have filed a settlement of his accounts in the Orphans’ Court, as executor of Jos. Richardson, deceased. The demand in this case is for money had and received by William Richardson, which the law said he was bound to pay over to the plaintiff. His representatives were equally liable if they had assets. It does not differ from the ascertainment of any other debt against the administrators of his estate: Greddis v. Irvine, 5 Barr, 508.

4. Again: it is objected that if there be a surplus after paying the four wards, then the action cannot be maintained, because the surplus was received by William Richardson as testamentary guardian, and not as executor. There is nothing in this objection. The surplus came into his hands as executor, not as guardian. The act of Assembly makes him a trustee of the plaintiff as to this residuum, and such was the law independent of the statute: Watson v. Watson, ut sup. The English rule that the undisposed residuum belonged to the executor, was never adopted in this state. For such residuum the executor was personally liable, and styling him executor was surplusage.

5. It is contended that the proceedings in the Orphans’ Court by citation, and the decree of the court discharging the respondents, being a decree by a court of competent jurisdiction, is a bar to the plaintiff’s right to recover. That court had exercised its office and duties before the application for the citation was made. The accounts of William Richardson as executor had been settled, and the discharge of the citation Ayas right, because that court had fulfilled its duties. The remedy for the complainant yyas an action at laAV in the Common Pleas.

6. It is said that the time which has elapsed since the account of William Richardson, the executor, Avas filed in 1818, constitutes a legal bar to the plaintiff’s recovery, the presumption of law being that the Ayhole balance was paid. The legacies Avere payable to the children as they severally arrived at eighteen. Hence the right of the next of kin did not arise until the legacies were all paid. The last of these became due and Avas paid in 1831, and the plaintiff has been seeking a recovery since 1832, and in 1844 he brought this action. It Avould be a perversion of law and justice to determine this assignment of error in the affirmative.

7. The remaining error assigned, is the rule adopted by the court in the computation of interest. A majority of this court think that on that ground the defendant has no just ground to complain. Our law forbids compound interest; and where there is mere negligence, or an omission to pay, simple interest only is alloAved. But where a trustee has received interest, and has a payment to make, his duty is to apply the interest to the payment, and if that is not sufficient to make up the payment, to take the. deficiency from the principal.

Here the executor, on the settlement of his administration account, had in his hands at interest upwards of $7,000, with which and its fruits, he had, at the periods specified in the Avill, to pay $8,000. When the first legacy fell due the eldest child and was payable, the interest he had received was first to be applied in payment, and to make up the legacy of §>2,000. ' And this was the rule adopted by this court when Ch. J. McKean was on the bench, in cases of bonds, mortgages, and judgments; where partial payments had been made: Penrose v. Hart, 1 Dall. 878; 8 S. & R. 458. The rule is fair to all the parties. In two years, thereafter or thereabouts, the next child was to be paid. The interest that had accumulated was then to be applied, and so much of the principal as was needed to make up the sum. And so with the others, until all were discharged. The balance then in his hands was by law to be divided among his representatives according to the intestate law, and it is only the proper proportion of that sum which the plaintiff recovered. I am satisfied there was no error in this direction.

Judgment affirmed.


text:
    Wright v. Linn.
    Where land was conveyed to trustees and their successors, to erect a school-house for the perpetual use of the parties to the deed and the inhabitants residing nearer to that school thin any other,, and such other persons as the inhabitants might see fit to admit, a charity is created which is not divested by non-user . for more than seventeen years after a school-house had been erected by contribution and used, and a re-entry by the grantor.
    Permanency is not essential to constitute a charitable gift.
    In error from tbe Common Pleas of Bucks.

      Deo. 27. Ejectment. In 1812, Samuel Wright conveyed the land in question in this suit to Williamson et ah, and their successors, in trust that they and others concerned should build a schoolhouse thereon, which should bo open and free, not only for the grantees, but also for the grantor, and all other civil and well-disposed inhabitants who might for the time being reside nearer thereto than to any other public school, and for such others as the inhabitants might see fit to admit, and to the intent that the said lot of ground might be faithfully appropriated to the use of a public school, for the benefit of the surrounding neighbourhood, not only during the present generation, but to continue in perpetual succession for ever.
    The consideration mentioned, was “the benefit of a school-house being erected in the neighbourhood, and divers other good causes and valuable considerationsand one dollar. A school-house was then erected by contribution of neighbours, at a cost of $160.
    A school was kept there until some time between 1822 and 1826, when another school-house being erected in the neighbourhood, it was abandoned for that purpose, and had since been occupied by strangers. In 1840-1, the grantor re-entered. Subsequently the defendant occupied it as a paint-shop. In 1848, the original grantor conveyed to the plaintiff, who brought this action.
    Whether the grantees were living did not appear; and it will be observed a life-estate only passed to them, under the rule of Methodist Ch. v. Remington, 1 Watts, 218.
    Krause, P. J., directed a verdict for defendants, saying this was a charity, and not to be defeated by non-execution by the trustees, or the omission of the cestuis que use to compel them to their duty.

      Wright, for plaintiff in error.
    Martin v. McCord is overruled by Kirk v. King, 3 Barr, 436, which is precisely similar both in the grant, and the facts connected with the abandonment.

      Ross, contra.
    It is proper to state that the defence is taken by the school directors of the district, for whom I appear, though they are not on the record. The act of Assembly, allowing a conveyance of these buildings to them, treats them as permanent charities. In this case there is a legal title in the trustees, and Martin v. McCord, 5 W. 493, is directly in point.

      Jan. 20.
   Bell, J.

Upon the authority of Martin v. McCord, 5 W. 493, the learned judge before whom this cause was tried, instructed the jury that the conveyance of the 14th of December, 1812, did not create a conditional estate, but established a trust for a charitable use, not liable to be defeated bj non-user. The object of that conveyance was the foundation of a public school, for the benefit of the inhabitants residing in its neighbourhood. Such a school is certainly treated by the case cited as being included in the class of charities, recognised by our law as entitled to especial protection, and not subject to be destroyed by a perversion of the trust, or the neglect and refusal of the trustees to give it effect. Then came the determination in Kirk v. King, 3 Barr, 436, which is thought to establish a contrary doctrine.

It is truly said, in the first of these cases, that these neighbourhood schools have been favourably known in Pennsylvania, since a period shortly posterior to the arrival of William Penn in the province. The facilities they afford for the education of the young, in rural districts, remote from the higher seminaries of learning, recommended them to the acceptance of the people; and they have accordingly grown to be numerous with the advancing population'of the country, and proved to be of great utility. A regard for the settled policy of the state, which seeks to promote the education of all her citizens, woidd seem, therefore, to dictate the propriety of sustaining these humble but useful institutions, whenever this can be accomplished without a violation of settled legal principles. Whether they are'.within the protecting supervision of our courts, in the exercise of an equitable jurisdiction, is the question presented here. I regard' it as ah important one.

Though the stat. 43 Eliz. ch; 4, relating to charitable uses, has not in terms been recognised as extending to Pennsylvania, we have adopted not only the principles that properly emanate from it, but, with perhaps the single exception of cy pres, those which, by an exceedingly liberal construction, the English courts have engrafted upon it. The peculiar equities commonly ascribed to its operation are freely administered hero, wherever our means are found adequate to the purpose.; and, in this respect, our competency has been much enlarged by the laws extending the equitable powers of our tribunals. In Witman v. Lex, 17 S. & R. 88, it is observed, that as the jurisdiction of our courts is not founded on the statute, it is not restrained to the cases specially enumerated in the preamble. The same remark is almost equally true in England. There, the equity of the act has been extended to embrace a large variety of subjects, by analogy to those enumerated, until the limits of the circle have swelled far beyond the bounds prescribed by the language of the enactment. Indeed, it is now asserted to be merely directory, since, as is said, the jurisdiction existed long before. The fashion has everywhere been to enlarge, but never to circumscribe the-operation of the statute. It therefore furnishes in both countries an unerring test of the character to be ascribed to those subjects and objects of which it specially speaks. Each of these may be safely ranked as a technical charity, and, as such, entitled to the overshadowing protection and fostering care of chancery. When we recur to the zeal for learning which marked, in a peculiar manner, the epoch of the statute, we are not surprised to find named among the objects deemed worthy of special care and superintendence, donations to found or assist “ schools of learning, free schools, and scholars in universities.” These are classed with gifts for the relief of aged, impotent, and poor people —the maintenance of sick and maimed soldiers and mariners, and other like benevolences. In connexion with these, the special remedy provided touches the abuses, breaches of trust, negligentes, misemployment, not employing, &c., of any lands, tenements, rents, &c., theretofore, or which might thereafter be given, limited, appointed, or assigned “ to or for any of the charitable and godly uses before rehearsed.”

Some difficulty seems, at one time, to have been experienced as to what species of school was intended, and at first it was thought that only free schools were comprehended: Atty. Gen. v. Hewer, 2 Vern. 387. But this notion has been repudiated since the judgment pronounced by Sir John Leech, in Atty. Gen. v. Lonsdale, 1 Sim. 109, that the institution of schools for the sons of gentlemen, though not in popular language a charity, is yet, in common with all schools of learning, so to be considered in view of the statute. Several decisions have also settled that universities and colleges are within the benefit of the statute for the protection of gifts made to them: Flood’s Case, Hob. 136; Plate v. St. Johns, Duke by Bridg. 379; King v. Newman, 1 Lev. 284; Atty. Gen. v. Downing, Wilm. Op. and Judg. 14. It may, therefore, be taken as settled in England, that every school of public instruction, of whatever grade, is embraced within the notion of a charity. With us, who profess to estimate general education as of the last importance, stringent reason exists for insisting upon this doctrine, which solely aims at the preservation and encouragement of seats of learning. Indeed, I am not aware that, rightly understood, it has ever been deliberately questioned. In Kirk v. King, the Chief Justice based the determination upon the ground that the school there in question lacked the quality of permanency, thought to be an essential element of a charity. “ It may be true,” he observed, as was said in Martin v. McCord, that the courts would not let a charity fail for the non-user of those who have the management of it; but charities are permanent foundations, which can scarce be predicated of country schools under the voluntary system.” This position, it is submitted, is hardly admissible as a proposition of universal application. Upon this head there is a want of precision and distinctness in the cases. But a careful examination of them will, I think, warrant the conclusion that a gift may bo constituted a charity, either by the use of terms and expressions that leave no doubt of such an intention; and this may occur where the fund is sooner or later to be dissipated and lost by its entire distribution: or by directing such an application of it as would be inconsistent with the notion of a mere legacy or present'gift; and this is the case where the fund is of a permanent nature, or the subject it is applied to sustain partakes of that character: Boyle on Char. 37. The first of these may be denominated natural charities, deriving their complexion from the eleemosynary quality of the gift; the second, conventional charities, and depending upon positive enactment or judicial determination. for their classification. Of the former description was the bequest in Atty. Gen. v. Bucknall, 2 Atk. 328, of a sum of money to assist the donor’s “ poor relations,” according to B.’s directions. By force of this phrase it was treated as a charitable gift, and both principal and interest declared to be applicable. So in Mahon v. Savage, 1 Sch. & Lef. 111, where a testator bequeathed to his executors 1,0007, to be distributed among poor relations, or such other objects of charity as should be mentioned in his private instructions to the executor. None such were left, but Lord Redesdale held it to be a charity, and therefore not to be confined to the donor’s next of kin, for, said he, “ the testator’s design Ayas to give to them as objects of charity, and not merely as relations.” Another instance is furnished by Powerscourt v. Powerscourt, 1 Moll. 616. The devise was of an annuity of 2,0007, till the testator’s son came of age, which was to be applied “in the service of my Lord and Master, and, I trust, Redeemer.” This was established as a good charitable devise. There are also cases showing that bequests to poor clergymen; to poor housekeepers; to the poor inhabitants of a parish, and to the poor generally, are all valid charitable dispositions, whether the bequest is designed for immediate distribution, or directed to be set apart as a permanent fund.

Sir Tho. 'Plumer, in Melick v. The Asylum, Jac. 180, glairces at both these species of charity. He stated charitable uses to be “ where the donor appropriates a gift either to charity, or to some public purpose, such as the repair of. bridges, ports and havens, &c., not operating in any manner to the benefit of himself.” The latter kind are described by Lord Camden, in Jones v. Williams, Amb. 651, to be a gift to a general use, Avhich extends to the rich as well as to the poor, many instances of which are stated in the statute of Eliz., as for building bridges, supplying a toAvn with water,' &c. The definition of Sir John Leach, in the British Museum v. White, 2 Si. & St. 594, is still more comprehensive. He considered every gift for a public purpose, whether local or general, to be of a charitable nature, although not so Avithin the common and narrow sense of those words. The same learned judge in another case stated it as his opinion, that “ funds supplied from the gift of the crown, or from the gift of the legislature, or from private gift, for any legal, public, or general purpose, are charitable funds to be administered by courts of equity. It is not material that the particular public or general purpose is not comprised in the statute of Elizabeth, all other legal, public, or general purposes being within the equity of that statute.”

Erom this it would seem that every hind of legal public benefaction is included in the notion of a charity. One of its qualities is generality, but this is satisfied by a comprehension of particular classes of persons or designated communities. Erom its nature, permanency either of the donation or its object would seem to be also requisite. Yet certainly perpetuity is not, and therefore a charity may exist consistently with an express or implied limitation. Indeed, it has been said that it is the generality of these dispositions that constitutes charities: Atty. Gen. v. Pearce, 2 Atk. 88. As instances may be given, Jones v. Williams (supra), for supplying a town with water; Howse v. Chapman, 4 Ves. 542, for the improvement of a city; and Johnson v. Swann, 3 Mad. 464, for establishing a life-boat for the use of a town. These are all cases dehors the terms of the statute, and therefore gave rise to some controversy. But here, as in England, there would seem to be no room for dispute, where the thing itself is designated by the statute, as a public charity. No one has ever dreamed of questioning the charitable character of gifts and institutions there enumerated; the only difficulty felt being in the equitable extension of the statute. Among the objects designated are, as we have seen, schools. Nor would it seem to make any difference that they are not permanently endowed, if they be designed for an existence which may be continued. The orphans’ school, mentioned in Atty. Gen. v. Davies, 9 Ves. 535, and there conceded to be a charity, is noticed by Lord Eldon to be a voluntary society, existing purely by voluntary engagements and contributions. It has long been held, that money given to build or repair a church, is given to a charitable use; and surely it must be agreed that land given as the site of a public school-house, primd facie stands in the same category. It may be otherwise, where the object in the contemplation of the party is ephemeral, and the subject sought to be promoted is intended to be of temporary duration. This is the point upon which Kirk v. King was made to turn ; and, where such is the case, perhaps the grant may be taken as on an implied condition of reverter’, so soon as the temporary object is accomplished. But such a condition should either expressly appear, or be unerringly indicated by the circumstances attendant on the gift. In the case just alluded to, such circumstances seem to have been found in the supposed custom and understanding of the country. But, I confess, my experience on this subject does not accord with that detailed by the Chief Justice. These grants of a small portion of land, for the purpose of founding schools, are of frequent occurrence. In the districts with which I. am best acquainted, they are usually occupied by substantial and permanent erections, expressly designed for educational purposes. -Though, for the most part, supported by voluntary contributions, and consequently occasionally unoccupied, they seldom cease to be regarded as the fountains from whence the youth of the neighbourhood are to derive, to some extent at least, mental nourishment. Nay, until recently, their portals presented to many the only path to rudimental knowledge ; and not a few, filling respectable positions in society, point to the wayside school as the place of their early instruction. It is true, that since the introduction of the common school, under our system of general education, the other has declined in importance. But this furnishes an additional reason why the grants of land, which originated many of them, should be held inviolate; since the general school law provides for the transfer of the voluntary school-houses and the ground' occupied by them, to the school directors of the proper district, to. be used as district schools. In this very instance, although not' shown by the record, it is understood the real contest is between the plaintiff and the common-school directors, to whom a conveyance of the house in question has been made. This is mentioned, not as a reason for the decision, but as illustrative of the argument which ascribes to the neighbourhood school the quality of permanence, at least in a sufficient degree to support its pretensions as a public charity.

But apart from this, the present is clearly distinguishable from the case of Kirk v. King, under the reasoning which led to that determination. Should it be even admitted that technical perpetuity is necessary to support this grant, as a donation to charitable uses, the conveyance possesses the requisite feature. It is in trust to build a school-house on the lot granted; and “ to the intent that the said lot of ground may be faithfully appropriated to,the use of a public school for the benefit of the surrounding neighbourhood, not only during the present generation, hut to continue in perpetual succession for ever.” This emphatic language would seem to be decisive of the question.

Before our several acts of Assembly, conferring upon our common-law tribunals some of the powers of a court of chancery, in relation to trusts, such an one as this might have been defeated by the obstinacy or neglect of those appointed to carry it into effect. But this is remedied by the conferred jurisdiction of defaulting trustees.

It has, however, been suggested, that as we have disclaimed the doctrine of cy pres, the charity must necessarily be defeated by a continued refusal of the neighbours to sustain the school, since the courts possess no authority to compel them to it. That such a failure may occurr, even in England, is shown by Atty. Gen. v. Bishop of Oxford, 1 Bro. C. 444, n. But this is no reason why, in the mean time, it should not be protected as a charity. Indeed, the supposed case can rarely happen, especially since the enactment of that part of the school law to which I have referred. When, however, such an instance presents itself, it will be time enough to determine what effect it may have on the title of a permanent foundation.

It may be well enough also to observe, that this case differs from Kirk v. King, in another particular, upon which some stress was laid. There, the legal title remained in the original owner, the “ school company” having but an equity, which was thought to 'be dependent on the agreement to use the ground “ for an English school-house, and for no other purpose.” Here, the legal title was conveyed to the trustees, who, according to the doctrine of Martin v. McCord, paid for it a valuable consideration, by the erection of the school-house. The grantor thus parted with his whole interest, except as an inhabitant of the neighbourhood; unless, indeed, his conveyance is to be treated as conditional. Eor this, I have endeavoured to show there is no pretence.

Eor the reasons given, the judgment rendered below must be affirmed.

It is perhaps proper to add, that in this conclusion all the members of the court concur.

Judgment affirmed.

Gibson, C. J., was absent during the argument, but expressed his concurrence in the decision.


text:
    Tams v. Hitner.
    In an action against partners, the articles of co-partnership or of dissolution can- ■ not be read by defendants, to show their respective dates or the firm-name, without calling the subscribing witness.
    Where a subscribing witness, three weeks before inquiry for him, was shown to have been at his mother’s residence within the state, and about twenty miles distant — if inquiry for him is not made there, there is a want of due diligence to find him, which will exclude proof of his signature.
    Nor can the handwriting of a deceased subscribing witness be proved, in order to admit a deed, where there is another witness of whom no account is given.
    The name of a firm stated in the narr. is immaterial, if a joint contract be proved. Partners are liable on a note given by two of them by their name as a distinct firm, if, by their course of business, they induced the belief that such was their firm-name.
    Where the notes of two partners composing a distinct firm are taken for a debt of a firm of which they are also members, the onus of showing they wore received in payment is upon the debtor.
    And this, although the drawers be debtors of the firm for whose debt the notes were given.
    In error from the Common Pleas of Montgomery.

      Dec. 28, 29.
    The plaintiff brought this action against S. Tams, Livingston and Lyman, the two latter notbeing served, and declared: first, on two notes dated May 1st and June 6th, 1846, drawn by defendants under the firm of Livingston & Lyman; secondly, on the common counts. Issue was joined on the pleas of payment and the general issue. Some time afterwards, the defendant Tams pleaded that the three defendants traded under the firm of S. Tams & Co., and that the firm of Livingston & Lyman was a distinct firm, of which he was not a partner. In form this was in bar, and the record showed issue was joined. It appeared that the plaintiff had, under a contract with the agent of the three defendants, delivered ore at their furnace up to May 23, and from that time up to June 6,1846. Upon receiving from this agent certificates of the amount of ore delivered, the plaintiff, under his directions, called at the compting-house of Livingston & Lyman, in Philadelphia, and received the two notes, on which suit was brought, for the amounts of the certificates respectively. The main question was, whether this action could be maintained thereon.
    It was proved that the three defendants were partners at the furnace in Montgomery county, and that Livingston & Lyman was the firm-name of a commission house in Philadelphia, composed of two of the defendants. The books and accounts of both concerns were kept there by the same person. On the 23d May, S. Tams retired from the furnace concern, and it was carried on by Livingston & Lyman, but notice of the change was not brought home to plaintiff according to the verdict.
    It was also proved that the firm-name of the three defendants was S. Tams & Co., but plaintiff gave evidence that they were known by those dealing at the furnace as Livingston & Lyman.
    The agent of the defendants, during his cross-examination, having stated that his first knowledge of the firm-name of the furnace concern was in the spring of 1846; the defendants produced their sealed articles of co-partnership, which he identified, but the court refused to permit them to read it. In this document, which had a subscribing witness, the witness was named as general agent of the parties.
    The defendants then proved a subpoena had been taken out for the subscribing witness to this document. Inquiry for him had been made at his boarding-house in the city, but he had not been there for six months. His cousin said he had been at his mother’s, in Bristol, twenty miles from Philadelphia, three weeks before, but not since. No inquiry was made there. The court, on the ground that due diligence had not been used to find him, refused to permit his signature to be proved.
    They also refused to permit a person who had seen all the signatures affixed, to subscribe and prove the deed.
    The court also refused to permit the articles of dissolution to be read on proof of the death of one subscribing witness, there being no effort to find the other, or proof where he was.
    The defendants having proved the separate existence of the two firms, and the good credit of Livingston & Lyman at the time the notes in suit were given, and that they were credited by S. Tams & Co. for the amount of those notes, offered to prove that Livingston & Lyman were indebted to S. Tams & Co., and it was their duty to pay cash instead of giving their notes; which was rejected, but the witness added he did not know that money was ever demanded on these certificates from S. Tams & Co.
    The plaintiff was permitted, under exception, to read to the jury the pass-books of his carters, which contained entries of the amount of ore delivered, made by clerks at the furnace after delivery, on proof of the handwriting and identification of the books by the carters, and a refusal to produce the- firm’s books. The quantity had also been proved by the defendants’ agent, who stated the clerks were in New York.
    The court also rejected certain records of suits brought by plaintiff and others in 1848, against defendants, by the name of S. Tams & Co., where the causes of action, accrued prior to May, 1846, to show knowledge on his part of the firm-name, and also by witnesses, plaintiffs therein, who stated they understood the name of the furnace concern was Livingston and Lyman.
    Krause, P. J., instructed the jury, that if defendants conducted their business in such a way as was calculated to mislead or induce a belief by plaintiff that the firm-name was Livingston and Lyman, when in fact it was S. Tams and Co., it should be taken advantage of by plea in abatement; but in other respects he was bound to prove his case.
    That if the notes taken were those of a stranger, the law presumed they were taken as collateral security, unless shown to have been accepted in satisfaction.
    But if the notes were given to bind Tams, by Livingston & Lyman as retiring partners, then they could only do this by using the firm-name, unless specially authorized by him to use another; and the question whether they were authorized to give them as they had done, was left to the jury.
    That there might be a recovery on the original cause of action without a surrender of the notes, since, though negotiable, they were expressly declared on, and a verdict either way would bar him.

      Y. L. Bradford, for plaintiff in error.
    The paper was evidence to contradict the witness, and properly exhibited to him for that purpose. Having been proved by him, it could be read for that purpose. The ground of objection, that the subscribing witness was not called, only prevails where a deed is to be read against parties, and does not prevail where all the parties admit it, nor where it is not to be used as evidence of a contract: 3 John. 477; 1 Salk. 280; 12 Mod. 500; 2 Bos. k Pull. 85. On the subsequent offer, there was full proof of an ineffectual search for the subscribing witness: and as it is immaterial when the witness subscribes, the court should have permitted it to be done at the trial: 3 W. C. C. 32, 42; 9 Cow. 94.
    But the main question is on the effect of the receipt of those notes. They were sued on, and there was a special plea that Tams was not a member of the firm which gave them. This was in fact but the general issue. There ■wasalso proof of this fact, and the question whether the drawing firm was indebted to S. Tams & Co., was very material. If they were, then, beside the presumption of payment arising from tbe taking notes of strangers, tbe legal presumption •would be payment and a discount of Livingston & Lyman’s notes with the proceeds: 12 Mod. 521; Chitty on Bills, 298; 9 Wend. 122; 7 B. & Cr. 19 ; 6 T. B. 189. It was a voluntary act of the plaintiff, there being no evidence of any desire on his part to receive anything else: 6 B. & Cr. 160; Chitty on Cont. 615, 751; 8 B. & Cr. 842. It was still more material to rebut any presumption of an authority to bind S. Tams by the new note, under a different firm-name; and had it been admitted, the defendant might have shown he was led' into error in settling with Livingston & Lyman, by supposing these debts had been paid by them.
    The court should have said, if the plaintiff was actually misled as to the firm-name — not if the acts were calculated to mislead.
    Mulvany, contra.
    The name of the firm was immaterial, if defendants were jointly liable: 2 W. & S. 414; but if there was a misnomer, it was pleadable in abatement. Whether defendants were liable on the notes or the original consideration, would depend on whether they were partners therein, or whether the notes were given by surviving partners for an old debt; or whether, being drawn by strangers, they were accepted in payment. The first two were submitted to the jury, and the latter was devoid of all evidence ; for it is the settled rule of this court, that a debtor giving the notes of a third person to his creditor, must show they were given in satisfaction. The onus is on him, or they are presumed to be as collateral security: 5 Wh. 537.
   Coulter, J.

This cause is one of great volume, in the mass of testimony and the very learned and elaborate argument of the counsel for the plaintiff in error, which, under the new rule, is appended to the paper-book. I shall, however, aggregate the fifteen specifications of error, many of which are not intrinsically of weight, and are made palpable only by the ingenuity of counsel, without detriment, I hope, either to the case or the argument of counsel.

The article of agreement referred to in the first specification was properly rejected by the court, because it was not duly authenticated. The rule is too well established, and too deeply founded in justice and propriety, that the subscribing witness to a deed shall be first called to authenticate it, if he is within the jurisdiction of the court, and can be found upon reasonable search being made for him, to be relaxed or evaded under the circumstances of this case.

The rule itself is conceded by the counsel, but it is averred to apply only to suits between the parties to the instrument, who have agreed to appoint the subscribing witness as their umpire in contests arising out of its execution. It is very true that in such controversies an admission by the parties in court, during the progress of. a trial or on record, is sufficient: 1 Salk. 280. And where a party produces a deed on notice, that itself is an admission in court which obviates the necessity of proof: 6 B. & Cr. 28. These exceptions to the rule go upon the ground that no proof in such cases is necessary, and concern not the degree or nature of proof necessary to authentication. But here the parties to the instrument are all defendants named in the writ, and their admission would be only making evidence in their own behalf; hence the necessity for a rule as strict, with regard to proof,-as if the controversy was adversary between parties to the deed. There is a wholesome rule for the authentication and proof of deeds, and the plaintiff in this suit has an undoubted right to the application of that rule in his case, before a deed produced by the defendants to operate in their behalf can be received. There was not what can be called an effort to produce the subscribing witness. It was not proved that he was out of the jurisdiction of the court; on the contrary, the defendants proved that he was at Bristol, in this state, three weeks before the trial, and there is no account of his having left the state. The offer to prove the deed by a person who said he was present when it was executed, but was not a subscribing witness, and the offer in court to permit him to subscribe the instrument and then call him as the subscribing witness, wears too much the colour of artifice, for the purpose of overbearing a long-established and just rule of evidence, to find much favour. Much better would it be to obliterate the rule altogether, than make it the victim of expedients. All the modes of probate offered by the defendant to prove the agreement were insufficient, and unsustained by any elementary rule or adjudicated ease, and therefore there was no error in the rejection of the paper.

It is strongly urged in the argument, that the date of the paper would have contradicted the testimony of Lewis, the plaintiff’s witness, who admitted it to be genuine, and that therefore it ought to have been admitted. But this is a mistake: Lewis says he did not know the firm-name until in the winter or spring of 1846. And the articles of agreement were dated 25th October, 1845, and stated that the firm-name should be Sampson Tams & Co.

Lewis, however, states, that in December, 1845, Lyman bought out Patterson, having a short time before bought out Livingston, and some time in the winter of 1846, Livingston bought back his share and also one-half of Patterson’s share, from which it would appear that the members of the firm were ambulatory till the winter of 1846, and it was in February that Lewis said the name of the firm as Sampson Tams & Co. was first given to him. The instrument would, therefore, not have contradicted him, because he might have first known of its existence after February, 1846 ; but if it was intended to do so, there was still stronger reason that it should be authenticated and proved according to settled principles. The pass-books were competent evidence, when proved by the carters who kept them. They contained entries made by the recognised clerks at the furnace, of every load of ore hauled and delivered by each carter, as evidence of the amount delivered. They were, in fact, not secondary evidence, but the very best evidence the nature of the transaction admitted. When the defendants, however, declined to produce the books of the furnace, upon notice, to compare with them, all shadow or doubt passes away, and the passbooks become the true criterion. It is sufficient to say in relation to the records of suits offered in evidence by the defendant, that, although.the cause of action may have originated prior to May, 1846, yet that afforded no evidence whatever that the plaintiff knew before that time that the firm-name of defendants was Sampson Tams & Co., because the suits were not brought until 1848, before which time, the neighbourhood had learned the firm-name as it was christened in the winter of 1846, and communicated to Lewis only, who was the agent and manager of all those interested. They cannot carry back the scienter further than the institution of the suits, and were properly rejected.

The plea filed by the defendant Sampson Tams, on the 21st February, 1848, and which the plaintiff treated as a nullity, was clearly a plea in abatement, and not a plea in bar. The suit is instituted against Walter C. Livingston, Charles A. Lyman, and Sampson Tams, trading under the firm of Livingston & Lyman; and the defendant Tams, upon whom only the writ was served, pleads to issue and in bar. About one year afterwards, he pleads specially, that Livingston, Lyman, and himself, carried on business at the furnace under the firm of Sampson Tams & Co; and that he was not a member of the firm of Livingston & Lyman. He does not deny the joint contract which the plaintiff alleges, or put that in issue by this plea, but says he did not make it under the name of Livingston & Lyman, of which firm (which transacted business in Philadelphia) he was not a member.

It is therefore a plea of misnomer, and of course a plea in abatement, which could not be pleaded after a plea in bar, by which the misnomei’, if any, was waived, and the plaintiff was entitled to treat it as a nullity : Wilson v. Hamilton, 4 S. & R. 238; Chamberlin v. Hite, 5 W. 373. Indeed, a plea in abatement is too late after a general imparlance.

The defendants were sued, and alb named as joint contractors under the firm of Livingston’&'Lyman. The firm-name is totally immaterial, if the defendants made a joint contract. That is the gist of the matter, and that is not denied by the special plea, but in fact impliedly admitted that the joint contract was made under the firm of Sampson Tams & Co. It is fully in evidence, that at the time the contract was made with the plaintiff, the firm name was generally believed to be Livingston & Lyman, and Lewis, who was agent and manager at the furnace, received many notes signed Livingston & Lyman, for the purpose of delivering to thdse who had worked there while Tams was a partner; and when he settled with others, gave them a certificate of indebtedness, with directions to go to Livingston & Lyman, two of the firm who transacted business in Philadelphia, and either get pay or get their notes. But there is no evidence whatever that the plaintiff knew, as long as he delivered under this contract, of there being distinct and separate firms. Tams was often on the ground, interfering with the business, and there is not a scintilla of testimony that the plaintiff knew that he retired from the firm in May, 1846, after which some of the ore was delivered.

The real question is, were all the defendants named partners in the business and transaction at the time the contract was made with plaintiff by Lewis, their agent, in February, 1846 ? Haughey v. Strickler, 2 W. & S. 414. That was the only issue the plaintiff was bound to maintain, and of this there is no doubt whatever, from the testimony of the manager and agent at the furnace, as well as the testimony of other witnesses: nor is there the slightest evidence that the plaintiff received notice to quit delivering ore at any time, according to the stipulation in his contract, at or after the 23d May, when it is alleged Tams went out of the firm. But the court submitted it as a fact to the jury to determine whether or not Tams, Livingston, and Lyman, by their mode and manner of doing and transacting business at the furnace, held out the impression that they transacted business under the name of Livingston & Lyman. It is very certain that it is a matter of no consequence what the name of the firm may be in the articles of partnership, which may he unknown to the public. It is the ostensible name under which business is transacted, that the public know, and all that is covered or represented in business life by that name, are bound. By whatever name an association is known in their dealings, by that they are bound, no matter what their designation may be in their articles of partnership: Story on Part. § 192. The notes given by Livingston & Lyman to plaintiff, on account of ore delivered at the furnace, were not ipso facto payment pro tanto, even though they were given by two of the partners only. If they were received as satisfaction and payment from Lyman & Livingston as a different firm, and intended to operate as a discharge of Tams, then, to be sure, they would extinguish the original demand. But there is no evidence whatever that they were so taken, nor that they were taken in any other than the usual course of business, by which the employer gives his note as evidence of the demand, or of the services rendered. That is the fair .interpretation of the transaction, and in that aspect they are only additional evidence. If the notes were not taken as collateral security, but in payment and satisfaction, it was the duty of the defendant to show it. The burthen of proof was thrown upon him: 5 Wh. 537. The jury found the fact the other rvay.

Livingston & Lyman, after the alleged retirement of Tams, continued to carry on business at the usual place, and, as admitted, had authority to settle up the concern. Under that authority they might have lawfully executed a note, which would be valid against all the partners existing at the time of the dissolution: Robinson v. Taylor, 4 Barr, 242.

Upon this whole case no’ mind can hesitate as to the justice of the plaintiff’s demand. Mr. Lewis represented all the partners, in-every stage of their mutations. The aspect of business appeared to be the same, and people contracted more with the furnace than with any ideal names. The plaintiff was bound to prove the joint contract by the issue, and the instruction of the court. The defendants have received the commodity out of which they made profit, from the labour and industry of the plaintiff, and the court perceive no rule of law that will prevent him from the benefit of his verdict and judgment.

Judgment affirmed".