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    Kountz versus Kirkpatrick & Lyons, to the use of Fisher.
    1. K. sold to L., oil, “ to be delivered seller’s option at any time till December 31st, at 13£ cents per gallon. L. assigned the contract to F., and afterwards entered into a combination with many others to buy up oil,” so as to raise the price in the market at the time K. was to deliver. Held, That F. was not affected by the acts of L., he having no connection with the combination.
    2. In equity the assignee of a chose in action is the true owner: he may set it off as his own.
    3. The assignee takes the chose subject to the equities between the original parties at the time of the assignment,, and to payment, &c., on the chose before notice of the assignment, but is not affected by acts unconnected with the subject of the contract.
    4. In the sale of chattels the general rule is, that the measure of damages for non-delivery, is the difference between the contract price and the price at the time and place of delivery.
    5. When the market price is unnaturally inflated by unlawful means, it is not the true means of ascertaining the measure of damages for non-delivery.
    6. The question of damages by a market value is for the jury: who may determine from the price before and after the day of delivery, and from other sources, the actual market value.
    November 14th 1872.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 86, to October Term 1872.
    This was an action of assumpsit, brought August 30th 1870,’ by Joseph Kirkpatrick and James Lyons, trading as Kirkpatrick & Lyons, to the use of Frederick Fisher and others, trading as Fisher Brothers, against William J. Kountz.
    The claim was upon the following memorandum set out in the plaintiff’s affidavit:—
    “Pittsburg, June 7th 1869.
    “Sold to Kirkpatrick & Lyons, two thousand barrels good, green merchantable crude petroleum, forty gallons to the barrel, gravity ,40 to 46 degrees, at a temperature of 60° Fahrenheit, to be delivered — seller’s option — at any time from this date, till December 31st 1869, in bulk cars or bulk boats, at Cosmos Oil Works. If delivered by Allegheny Yalley or Western Pennsylvania Railroad, the buyer may designate any other point of delivery on line of said roads. If delivered by water, then at any good landing in or near Pittsburg buyer may direct. Payment to be made cash on delivery at the rate of thirteen and one-half cents per gallon, on lots as gauged and delivered.
    W. J. Kountz, Seller.”
    The affidavit further set out:—
    “ On the 31st day December 1869, the said defendant was duly notified, that the vendees of said oil were ready and willing to receive and pay for the same according to the terms of the contract and demand was made of the defendant that he deliver the said oil according to the provisions of said contract; nevertheless the defendant on the day and year last aforesaid refused to deliver said oil, and never did deliver the same, or any part thereof, although the vendees were ready and willing to receive and pay for the same according to the provisions of said contract.
    ’ “ On the 31st of December 1869, the market price of oil of the quality specified in said contract, and at the place of delivery therein mentioned was 18 cents per gallon; therefore, by reason of his (defendant’s) failure to perform his said contract, the vendees of said oil, on the 31st day of December 1869, sustained and suffered loss and damage to the amount of $3600.
    Frederick Fisher.”
    On the 14th of September 1870, judgment was taken by default against the defendant for $3753. On the 22d of September 1870, a rule was granted on the plaintiffs to show cause why the judgment should not be opened, and the defendant let into a defence; the rule was made absolute on the condition, that the defendant within five days file “a full and specific affidavit of defence, which shall be subject to the same rules of court as if the same had been filed before a judgment entered.”
    The- affidavit of defence was as follows:
    “ That the said plaintiffs, Kirkpatrick & Lyons, between the 7th of June 1869, and the 31st of December 1869, with others, entered into a combination to purchase oil here in the county of Allegheny, as well as in the oil-producing districts of Pennsylvania and West Virginia, and keep it out of the market and thereby create a scarcity, and consequently enhance the price, for the purpose of preventing this affiant (and others who had entered into like writings of the character of the one on which this suit is brought) from fulfilling his engagement, set forth in said writing, so that they might reap great gains and profits, by receiving the difference between the price promised your affiant and the advanced price brought on as aforesaid, and in furtherance of said illegal object, the said plantiffs, with others, their confederates, used their influence and efforts to prevent oil from being brought to the city of Pittsburg, from the oil-producing districts for the purpose aforesaid; and further, said plaintiffs, with their confederates, for the purpose of preventing this affiant (and others who had entered into like writings with the one sued on) from fulfilling his said engagement; and from having oil shipped on the Allegheny Valley Railroad, to the city of Pittsburg, from oil-producing districts in the state of Pennsylvania, monopolized the freight-cars of said road (the river, most of the time, being too low to allow oil to be transported by water from the oil regions in the state of Pennsylvania to said city of Pittsburg), and rendered it impossible for this affiant to fulfil his said engagement, as well as others of a like kind, and said illegal proceedings, actions and doings of the said plaintiffs (and others, their confederates), they, the said plaintiffs, and others, their confederates, did succeed in raising the price of oil between the aforesaid two dates from 13J cents to 18 cents per gallon, thereby to a great extent contributing purposely to prevent this affiant from being ready and prepared to deliver the 2000 barrels of oil, mentioned in said writing, between the dates aforesaid; and this affiant would further state (and is prepared to prove) that the fair market price of oil (such as described in said contract sued on), on the 31st of December 1869, was considerably less than 18 cents per gallon. This affiant expects to be able to prove the whole of the foregoing facts upon the trial of this case, and this affiant would further aver, and expect to prove on the trial of this case, that he would have fulfilled his contract had it not been for the doings and actions of said plaintiffs (and others, their confederates), above set forth, and he would further state that as soon as the market was relieved from the above combination, to wit, within a few days after the 31st of December 1869, he procured and tendered oil in fulfilment of his said contract, and he would further aver that the object and intention of the above combination on part of the said plaintiffs (and others, their confederates) were to thwart and prevent him, this defendant, from performing and fulfilling his said contract within the time fixed in the same. W. J. Kountz.”
    On the trial, January 9th 1872, before Sterrett, P. J., the plaintiffs gave in evidence the record of the previous proceedings in this case.
    The defendant then gave evidence tending to show that the legal plaintiffs, with a large number of other persons, holding contracts similar to that in suit for the delivery of oil, entered into a combination to raise the price by buying up oil, holding it until after the last of the year, for the purpose of compelling the défendant to pay large differences for non-delivery.
    He gave other evidence tending to sustain the allegations of his affidavit of defence, especially to show that the price of oil when the delivery was to have been made, except that it had been unnaturally raised by the combination, was much less than 18 cents. His evidence, amongst other things, was that this combination had been formed in the early part of October 1869.
    The plaintiffs, in rebuttal, gave evidence, under objection and exception, that Eisher Brothers had held the contract by assignment from Kirkpatrick & Lyons since June 24th 1869, and had given defendant notice within two weeks afterwards; the defendant said it was all right. The contract had been originally made by them for Eisher Brothers, who had no connection with the combination, nor had they any anticipation of such combination when the assignment was made to them. There was a conflict in the evidence as to Fisher Brothers having given the defendant notice of the transfer.
    The court was requested, by defendant’s counsel, to charge the jury as follows:—
    1. The contract sued on is not assignable.
    “ This point is refused. If Kirkpatrick & Lyons ever had any interest in the contract in their own right, it was competent for them to transfer that interest to the equitable plaintiffs, Fisher Bros., and if the assignment was made, as it appears by the endorsement on the contract, it would have the effect of transferring all their interest in the contract to Fisher Bros. Although such transfer, in and of itself, would not release them from their liability to Capt. Kountz, for the contract price of the oil, in case the assignees had refused to pay it on delivery.”
    2. If assignable, the assignees take it subject to all the equities then existing or that may thereafter arise up to the maturity of said contract.
    “ As a whole this point is refused. The first clause of it is correct, but the last is not.”
    3. Any defence that would prevent Kirkpatrick & Lyons from recovering in their own right will be effectual to bar a recovery in favor of their assignees, the equitable plaintiffs.
    “ This point is refused.”
    4. There is an implied undertaking or obligation in the contract sued on that the parties to it shall act in good faith towards each other in regard thereto, and if either one shall knowingly do any act or thing, for the purpose of circumventing the other, and thus prevent him from performing his part of the contract, the party thus acting cannot be allowed to recover damages from the other for his non-performance of the contract, nor can his assignees, no odds at what time the assignment took place, whether before or after the act of prevention.
    “ This point as a whole is refused. The first part of the proposition is correct, and if it stood alone, unconnected with the latter clause, we would affirm it. We cannot say that the assignees of such a contract as the one in suit, without regard to the time it was assigned to him, should be visited with the consequences of bad faith of his assignor, practised after the latter had parted with his interest in the contract. In other words, the assignee of such a contract is responsible only for his own bad faith after he has become the owner of the contract, and should not be prejudiced by any act of bad faith committed by the assignor after he parted with his interest.”
    5. The implied undertaking or obligation mentioned in the 4th point, is inherent in the contract sued on, and adheres to it, in whosoever’s hands it may be, by assignment or otherwise, and, therefore the assignees of said contract, viz. Eisher Bros, (the equitable plaintiffs), took said contract subject to the said implied undertaking or obligation.
    “ This point is refused. If you find that the contract in suit was made at the instance of Eisher Bros., and for their benefit, and on the 24th of June 1869 was formally transferred and delivered to them by the legal plaintiffs, and the defendant was shortly afterwards notified of the transfer, no act of bad faith on the part of the legal plaintiffs, or any one else, could prejudice Eisher Bros., unless they in some way participated therein.”
    6. If the jury believe, from the evidence, that there was a combination entered into in the month of October 1869 (composed, among others, of Kirkpatrick & Lyons, the legal plaintiffs in this case), for the purpose of buying up from time of said combination to December 31st 1869, and withholding the same out of the market, the crude petroleum oil (of a gravity from 40 to 60), shipped to the city of Pittsburg, and produced in the oil-producing districts of Pennsylvania, and thereby create a scarcity and give a fictitious and artificial price to oil of the character above described, and this for the purpose, among others, of preventing the defendant (as well as others who had entered into like contracts) from fulfilling his contract sued on, and in fact did so prevent him, then the plaintiffs cannot recover.
    “ This point is refused. If this suit had been brought by Kirkpatrick & Lyons, in their own right, and for their own benefit, and we had no evidence of the assignment of the contract, this point would be a correct statement of the law applicable to the facts therein recited; as it stands, however, under the evidence it is refused.”
    7. The combination mentioned in the 6th point was illegal, and if Kirkpatrick & Lyons, the legal plaintiffs in this action, were parties thereto, and the action of said illegal combination had the effect of preventing the defendant from performing his part of the contract sued on, then the plaintiffs cannot recover.
    “ This point is refused for reasons already given.”
    8. If the said illegal combination mentioned in point 7th, was composed of Kirkpatrick & Lyons and others, and its actions and doings did stimulate the price of the crude oil described in point 6th, and give it a fictitious and artificial value, and thus render it more difficult and expensive for the defendant to fulfil his part of the contract sued on than it would have been, had not said illegal combination been formed, then and in that case the defendant was relieved from performance, and the plaintiff cannot recover.
    “ This point is refused.”
    9. If the illegal combination above referred to would be a defence as against Kirkpatrick & Lyons, the legal plaintiffs, it will also avail as against their assignees the equitable plaintiffs, notwithstanding the defence arose after the assignment to said equitable plaintiffs, unless the defendant has estopped himself from pleading or setting it up against said assignee's, and it devolves upon the plaintiffs to show such estoppel, if any exists.
    “This point is refused.”
    10. The fact, if true as sworn to by Frederick Fisher, one of the equitable plaintiffs, that some two or three weeks after the assignment of the contract to said equitable plaintiffs, he informed the defendant, that the contract had been assigned, and the defendant replied “all right” — does not amount to an estoppel (because the defence had not then at the time of notice arisen), and because the defendant did not induce them by act or word to take the contract ; nor did he know of it till long after the assignment had taken place.
    “ This point, so far as it is applicable to the facts of this case, is affirmed. If the defendant, when informed that the contract had been assigned, replied “all right,” he would not thereby be estopped from setting up an equitable defence which then existed, but of which he was ignorant at the time. But as we have already said, after the assignment and notice thereof to defendant, the assignees could not be prejudiced by any subsequent act of the assignor, unless they were in some manner parties to it.”
    11. The equitable plaintiffs, Fisher Bros., took the assignment of said contract sued on, subject to all defences and equities existing at the time of the assignment and up to the time notice of said assignment was given to said defendant. And if the jury believe that notice of said assignment was not given defendant until after the formation of the illegal combination, composed of Kirkpatrick & Lyons, the legal plaintiffs, and others, for the purpose mentioned in point 6th, and that the said illegal combination did contribute materially to prevent the defendant from performing his part of the contract, then the equitable plaintiffs cannot recover.
    “ This point is refused for reasons already given.”
    12. The testimony of the defendant is, that he had no notice of the assignment of the contract sued on until the last of November or early part of December 1869, at least more than a month after the formation of said illegal combination, and if the jury believe his testimony in this respect, and that the said illegal combination prevented or materially contributed to prevent the defendant from performing his part of said contract, then the plaintiffs cannot recover.
    “ This point is refused. If the contract was assigned to the equitable plaintiffs, Fisher Bros., and delivered to them on the 24th of June 1869, they would not be affected by anything that was afterwards done by the alleged combination, or by any of the parties composing it, even though defendant had no notice of the assignment until December 1869, unless it would appear that Fisher Bros, were parties to the combination, or so related to it as to be responsible for its acts. The object of giving notice of the assignment of a contract, such as the one before us, is that the party notified may not do, or omit to do anything in relation to the subject-matter of the contract, by which he would be prejudiced. If he has not been in any manner prejudiced by want of notice, he has no reason to complain that none was given. Assuming that the defendant had no notice of the assignment until December, is there anything in the evidence to show that in consequence thereof, he did anything to his prejudice or omitted anything to his advantage, which he would not have done, if he had been notified at the time of the transfer? We think not."
    13. If the jury believe that Frederick Fisher, one of the equitable plaintiffs, advised the defendant to sell the oil mentioned in the contract sued on, and then went to Kirkpatrick & Lyons, and got them to buy the oil from the defendant, for his firm, Fisher Bros., on terms said F. Fisher advised him to sell, and Kirkpatrick & Lyons did so buy, then the said Fisher acted in bad faith, and there should be no recovery in this case.
    “ We refuse to afiirm this proposition as stated. But if you find from the evidence that Frederick Fisher, with intent to deceive defendant and obtain an undue advantage of him, advised him to 1 sell short, &c.,’ and defendant acting upon such advice, offered the oil, and his offer was accepted by Kirkpatrick & Lyons, at the instance of Fisher, this would be such an act of bad faith on the part of Fisher as should prevent him from recovering. If, on the other hand, the defendant in a casual conversation, or conversations, with Fisher in the regard to the future prospects of the oil trade, asked his opinion in relation thereto, and Fisher without intending to mislead or deceive him, and thereby obtain an undue advantage of him, advised him to ‘ sell short,’ the fact that defendant afterwards offered to sell and did sell to Kirkpatrick & Lyons for Fisher Bros., would not stand in the way of plaintiffs’ recovery. As to the facts bearing on this question the defendant is contradicted by Fisher, who testifies that he never advised him to sell in any way. What the facts are you will determine.
    14. If Frederick Fisher, one of the equitable plaintiffs, did advise the defendant to sell the oil mentioned in the contract sued on, on the terms therein mentioned, and then got Kirkpatrick & Lyons, the legal plaintiffs, to purchase the oil from said defendant on said terms, and the defendant had no notice of this arrangement until after suit brought (and there is no evidence that he ever had any notice of such an arrangement), then the plaintiffs ought not to recover.

      “ This proposition is too broadly stated, and in our opinion not fully justified by the evidence. There is nothing in the testimony to show that Pisher advised defendant to ‘ sell short,’ at any particular price. In other respects our answer is the same as to the last preceding point.
    15. If the jury should be of opinion, under the instructions from the court, that Pisher Bros, are entitled to recover, the court is requested to charge that in assessing the damage, they will first ascertain and determine what was the fair market value of crude oil per gallon, on the 31st of December 1869, and if they should find at that date it did not exceed 13J cents per gallon, then the damages will be merely nominal. If they find it exceeds 13| cents per gallon, they will charge the defendant with whatever the excess is over l3| cents on 80,000 gallons.
    “ This point is refused. The judgment in this case was opened, on condition that defendant should fully comply with the rules of court in relation to the affidavits of defence. The plaintiffs had filed an affidavit of claim, in which they distinctly averred the market price of oil in Pittsburg on the 31st day of December 1869, and claimed the difference between that and the contract price. This part of plaintiffs’ affidavit of claim is not distinctly traversed or denied, as the rule of court requires, and is therefore to be taken as admitted.”
    The verdict was for the plaintiffs for $3753, with interest from September 14th 1870.
    The defendant took out a writ of error: he assigned for error:—
    1. The admission of plaintiffs’ evidence objected to.
    2-16. The answers to the defendant’s points.
    None of the errors except the 9th and 10th were assigned in accordance with the rules of the Supreme Court.

      S. H. Greyer and ,(r. Shiras, Jr., for plaintiff in error.—
    Kountz’s assent to the contract when notified of its assignment to Pisher, could not affect them in reference to a combination of which he had no knowledge: Buchanan v. Wurtz, 5 Watts 151; Ludwick v. Croll, 2 Yeates 464. The contract bound the parties to the exercise of good faith towards each other in regard to it during its executory character, and the violation of this duty, by one of the contracting parties, to the detriment of the other, will exonerate him from performance of his part of the contract: Borden v. Borden, 5 Mass. 67; Whitney v. Spencer & Grant, 4 Cowen 39; The People v. Bartlett, 3 Hill’s Reports 571; 2 Parsons on Contracts 189; Sergeant v. Ingersoll, 7 Barr 340; Addison on Contracts, American Notes, 880-1122. '
    The exercise of good faith on part of the contracting parties, in regard to their contract, is an essential element of the contract itself.

      As to damages the inquiry is, what was the value at the time fixed for delivery, taking into consideration all proved facts, of price and sale, and all rational and distinct probabilities, and nothing more: 2 Parsons on Contracts 482; Smethurst v. Woolston, 5 W. & S. 106.

      M. W. Acheson, for the defendants in error,
    cited 1 Parsons on Contracts 193 et seq. After notice of the assignment has been given, the equitable interest of assignee is protected against all interference of the original parties: 2 Story on Contracts, sect. 376 n.; Corser v. Craig, 1 Wash. C. C. R. 424; Mandeville v. Welch, 5 Wheaton 277; Davis v. Barr, 9 S. & R. 137, 141; Taylor v. Gritt, 10 Barr 428; Cook v. Ambrose, Addison 323.
    The original judgment in this case having been merely opened to let the defendant into a defence, needed no support at the outset, but stood good unless a legal or equitable payment, discharge •or other defence was established: Cannell v. Crawford County, 9 P. F. Smith 196. The Supreme Court will not reverse for any construction given by the Court of Common Pleas to its own rules which is not palpably erroneous : Wickersham v. Russell, 1 P. F. Smith 71; Frank v. Colhoun, 9 Id. 381; Bigoney v. Stewart, 18 Id. 318.
    The standard of damages for non-delivery of an article is the difference between the contract and the market price at the time and place of delivery: Fessler v. Love, 12 Wright 407; Sedg. on Measure of Damages 295, 296, note 1. The amount of compensation, or measure .of damages is, as a general rule, matter of law, to be disposed of by the court: Sedg. on Measure of Damages 27, 545, 639; Smith v. Griffith, 3 Hill 33.
    January 6th 1873,
   The opinion of the court was delivered, by

Agnew, J.

— The second, third, fifth, sixth, seventh, eighth, eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth errors, are not well assigned, for all the answers of the court to the points were omitted. When a court simply refuses a point, the error is well assigned by reciting the point, and stating that it was refused. But when the judge answers specially, in order to introduce a qualification he deems necessary to make his instruction correct, the answer must be recited as well as the point. We shall not decline considering, however, all the important questions; and in order to discuss them, we may state succinctly the nature of the case. On the 7th of June 1869, Kountz sold to Kirkpatrick ■& Lyon, two thousand barrels of crude petroleum, to be delivered at his option, at any time from the date, until the 31st of December 1869, for cash on delivery, at thirteen and a half cents a gallon. On the 24th of June 1869, Kirkpatrick and Lyon assigned this contract to Fisher & Brothers. Kountz failed to deliver the oil. He defends on the ground that Kirkpatrick & Lyons, and others holding like contracts for delivery of oil, entered into a combination to raise the price, by buying up large quantities of oil, and holding it till the expiration of the year 1869, and thus to compel the sellers of oil on option contracts, to pay a heavy difference for non-delivery. Fisher & Brothers, the assignees of Kountz’s contract, were not in the combination, and the principal questions are whether they are affected by the acts of Kirkpatrick & Lyons, subsequent to the assignment; whether notice of the assignment to Kountz was necessary to protect them, and what is the true measure of damages. The court below held that Fisher & Brothers, as assignees of the contract, were not affected by the acts of Kirkpatrick & Lyons, as members of the combination in the following October and subsequently, and that notice in this case was not essential to the protection of Kountz.

The common-law rule as to the assignability of choses in action ño longer prevails, but in equity the assignee is looked upon as the true owner of the chose. He may set off the demand as his own: Morgan v. Bank of North America, 8 S. & R. 73; Ramsey’s Appeal, 2 Watts 228. The assignee takes the chose subject to the existing equities between the original parties before assignment, and also to payment and other defences to the instrument itself, after the assignment and before notice of it; but he cannot be affected by collateral transactions, secret trusts, or acts unconnected with the subject of the contract: Davis v. Barr, 9 S. & R. 137; Beckley v. Eckert, 3 Barr 292 ; Mott v. Clark, 9 Id. 399 ; Taylor v. Gitt, 10 Id. 428; Northampton Bank v. Balliet, 8 W. & S. 318; Corsen v. Craig, 1 Wash. C. C. R. 424; 1 Parsons, on Cont. 193, 196; 2 Story on Cont., § 396, n.

The act of Kirkpatrick & Lyons, complained of as members of an unlawful combination to raise the price of oil, was long subsequent to their assignment of Kountz’s contract, and was a mere tort. The contract was affected only by its results as an independent act. It does not seem just, therefore, to visit this effect upon Fisher & Brothers, the antecedent assignees. The act is wholly collateral to the ownership of the chose itself, and there is nothing to link it to the chose, so as to bind the assignors and assignees together. After the assignment, there being no guaranty, the assignors had no interest in the performance of this particular contract, and no motive, therefore, arising out of it to raise the price on Kountz. The acts of Kirkpatrick & Lyons seem, therefore, to have no greater or other bearing on this contract than the acts of any other members of the combination, who were strangers to the contract.

In regard to notice of the assignment to Kountz, it is argued, that having had no notice of it, if he knew of the conspiracy to raise the price of oil, and thus to affect his contract, and that Kirkpatrick & Lyons were parties to it, he might have relied on that fact as a defence, and refused to deliver the oil, and claimed on the trial a verdict for merely nominal damages for his breach of his contract. Possibly in such a speoial case, want of notice might have constituted an equity, but the answer to this case is, that no such point was made in the court below, and there does not seem to be any evidence that Kountz knew of the conspiracy, and Kirkpatrick & Lyons’s privity, and relying on these facts, desisted from purchasing oil to fulfil his contract with them. As the case stood before the court below, we discover no error in thé answers of the learned judge on this part of it.

The next question is upon the proper measure of damages. In the sale of chattels, the general rule is, that the measure is the difference between the contract price and the market value of the article at the time and place of delivery under the contract. It is unnecessary to cite authority for this well established rule, but as this case raises a novel and extraordinary question between the true market value of the article, and a stimulated market price, created by artificial and fraudulent practices, it is necessary to fix the true meaning of the rule itself, before we can approach the real question. Ordinarily, when an article of sale is in the market, and has a market value, there is no difference between its value and the market price, and the law adopts the latter as the proper evidence of the value. This is not, however, because value and price are really convertible terms, but only because they are ordinarily so in a fair market. The primary meaning of value is worth, and this worth is made up of the useful or estimable qualities of the thing: See Webster’s and Worcester’s Dictionaries. Price, on the other hand, is the sum in money or other equivalent set upon an article .by a seller, which he demands for it: Id. Ibid. Yalue and price are, therefore, not synonymes, or the necessary equivalents of each other, though commonly, market value and market price are legal equivalents. When we examine the authorities, we find also that the most accurate writers use the phrase market value, not market price. Mr. Sedgwick, in his standard work on the measure of damages, 4th ed. p. 260, says : “ Where contracts for the value of chattels are broken by the vendor’s failing to deliver property according to the terms of the bargain, it seems to be well settled, as a general rule, both in England and the United States, that the measure of damages is the difference between the contract price and the market value of the article at the time it should be delivered upon the ground; that this is the plaintiff’s real loss, and that with this sum, he can go into the market and supply himself with the same article from another vendor.” Judge Rogers uses the same term in Smethurst v. Woolston, 5 W. & S. 109 : “ The value of the article at or about the time it is to be delivered, is the measure of damages in a suit by the vendee against the vendor for a breach of the contract.” So said C. J. Tilghman, in Girard v. Taggart, 5 S. & R. 32. Judge Sergeant, also, in O’Conner v. Forster, 10 Watts 422, and in Mott v. Danforth, 6 Id. *308. But as even accurate writers do not always use words in a precise sense, it would be unsatisfactory to rely on the common use of a word only, in making a nice distinction between terms. It is therefore proper to inquire into the true legal idea of damages in order to determine the proper definition of the term value. Except in those cases where oppression, fraud, malice or negligence enter into the question, “the declared object (says Mr. Sedgwick, in his work on Damages) is to give compensation to the party injured for the actual loss sustained,” 4th ed., pp. 28, 29; also, pp. 36, 37. Among the many authorities he gives, he quotes the language of C. J. Shippen, in Bussy v. Donaldson, 4 Dallas 206. “As to the assessment of damages '(said he), it is a rational and legal principle, that the compensation should be equivalent to the injury.” “The rule,” said C. J. Gibson, “is to give actual compensation, by graduating the amount of the damages exactly to the extent of the loss.” “ The measure is the actual, not the speculative loss Forsyth v. Palmer, 2 Harris 97. Thus, compensation being the true purpose of the law, it is obvious that the means employed, in other words, the evidence to ascertain compensation, must be such as truly reaches this end.

It is equally obvious, when we consider its true nature, that as evidence, the market price of an article is only a means of arriving at compensation; it is not itself the value of the article, but is the evidence of value. The law adopts it as a natural inference of fact, but not as a conclusive legal presumption. It stands as a criterion of value, because it is a common test of the ability to purchase the thing. But to assert that the price asked in the market for an article is the true and only test of value, is to abandon the proper object of damages, viz., compensation, in all those cases where the market evidently does not afford the true measure of value. This thought is well expressed by Lewis, O. J., in Bank of Montgomery v. Reese, 2 Casey 146. “ The paramount rule in assessing damages (he says), is that every person unjustly deprived of his rights, should at least be fully compensated for the injury he sustained. Where articles have a determinate value and an unlimited production, the general rule is to give their value at the time the owner was deprived of them, with interest to the time of verdict. This rule has been adopted because of its convenience, and because it in general answers the object of the law, which is to compensate for the injury. In relation to such articles, the supply usually keeps pace with the demand, and the fluctuations in the value are so inconsiderable as to justify the courts in disregarding them for the sake of convenience and uniformity. In these cases, the reason why the value at the time of conversion, with interest, generally reaches the justice of the case, is that when the owner is deprived of the articles, he may purchase others at that price. But it is manifest that this would not remunerate him where the article could not be obtained elsewhere, or where from restrictions on its production, or other causes, its price is neóessarily subject to considerable fluctuation.” This shows that the market price is not an invariable standard, and that the converse of the case then before Judge Lewis is equally true — that is to say— when the market price is unnaturally inflated by unlawful and fraudulent practices, it cannot be the true means of ascertaining# what is just compensation. It is as unjust to the seller to give the purchaser more than just compensation, as it is to the purchaser to give him less. Right upon this point, we have the language of this court in the case of a refusal Toy a purchaser to accept: Andrews v. Hoover, 8 Watts 240. It is said: “The jury is bound by a measure of damages where there is one, but not always by a particular means for its ascertainment. Now the measure in a case like the present, is the difference between the price contracted to be paid and the value of the thing when it ought to have been accepted; and though a resale is a convenient and often satisfactory means, it does not follow that it is, nor was it said in Girard v. Taggert, to be the only one. On the contrary, the propriety of the direction there, that the jury were not bound by it, if they could find another more in accordance with the justice of the case, seems to have been admitted; the very thing complained of here.” Judge Strong took the same view in Trout v. Kennedy, 11 Wright 393. That was the case of a trespasser, and the jury had been told that the plaintiff was entitled to the just and full value of the property, and if at the time of the trespass the market was depressed, too much importance was not to be given to -that fact. “ If (says Judge Strong) at any particular time, there be no market demand for an article, it is not of course on that account of no value. What a thing will bring in the market at a given time, is perhaps the measure of its value then; but it is not the only one.” These cases plainly teach that value and market price are not always convertible terms; and certainly there can be no difference in justice or law, in an unnatural depression and an unnatural exaltation in the market price — neither is the true and only measure of value.

These general principles in the doctrine of damages and authorities, prove that an inflated speculative market price, not the result ' of natural causes, but of artificial means to stimulate prices by unlawful combinations for the purposes of gain, cannot be a legitimate means of estimating just compensation. It gives to the purchaser more than he ought to have, and compels the seller to pay more than he ought to give, and it is therefore not a just criterion. There is a case in our own state, bearing strongly on this point: Blydenburgh et al. v. Welsh et al., Baldwin’s Rep. 331. Judge Baldwin had charged the jury in these words : “ If you are satisfied from the evidence, that there was on that day a fixed price in the market, you must be governed by it; if the evidence is doubtful as to the price, and witnesses vary in their statements, you must adopt that which you think best accords with the proof in the case.” In granting a new trial, Judge Hopkinson said: It is the price — the market price — of the article that is to furnish the measure of damages. Now what is the price of a thing, particularly the market price? We consider it to be the value, the rate at which the thing is sold. To make a market, there must be buying and selling, purchase and sale. If the owner of an article holds it at a price which nobody will give for it, can that be said to be its market value? Men sometimes put fantastical prices upon their property. For reasons personal and peculiar, they may rate it much above what any one would give for it. Is that the value? Further, the holders of an article, flour, for instance, under a false rumor, which, if true, would augment its value, may suspend their sales, or put a price upon it, not according to its value in the actual state of the market, but according to what in their opinion will be its market price or value, provided the rumor shall prove to be true. In such a ease, it is clear, that the asking price is not the worth of the thing on the given day, but what it is supposed it will be worth at a future day, if the contingency shall happen which is to give it this additional value. To take such a price as the rule of damages, is to make the defendant pay what in truth never was the value of the article, and to give to the plaintiff a profit by a breach of the contract, which he never would have made by its performance.”

The case of suspended sales upon a rumor tending to enhance the price, put by Judge Hopkinson, bears no comparison to the case alleged here, where a combination is intentionally formed to buy up oil, hold it till the year is out, and thus force the market price up purposely to affect existing contracts, and compel the sellers to pay heavy damages for non-fulfilment of their bargains. In the same case, Judge Hopkinson further said: “We did not intend that they (the jury) should go out of the limits of the market price, nor to take as that price whatever the holders of the coffee might choose to ask for it; substituting a fictitious, unreal value, which nobody would give, for that at which the article might be bought or sold.” “ In determining,” says an eminent writer on contracts, “ what is the market value of property at any particular time, the jury may sometimes take a wide range; for this is not always ascertainable by precise facts, but must sometimes rest on opinion; and it would seem that neither party ought to gain or lose by a mere fancy price, or an inflated and accidental value, suddenly put in force by some speculative movement, and as sud-denly passing away. The question of damages by a market value is peculiarly one for a juryParsons on Contracts, vol. 2, p. 482, ed. 1857. In Smith v. Griffith, 3 Hill 337-8, C. J. Nelson said: “ I admit that a mere speculating price of the article, got .up by the contrivance of a few interested dealers, is not the true test. The law, in regulating the measure of damages, contemplates a range of the entire market, and the average of prices, as thus found, running through a reasonable period of time. Neither a sudden and transient inflation, nor a depression of prices, should control the question. These are often accidental, promoted by interested and illegitimate combinations, for temporary, special and selfish objects, independent of the objects of lawful commerce;'a forced and violent perversion of the laws of trade, not within the contemplation of the regular dealer, and not deserving to be regarded as a proper basis upon which to determine the value, when the fact becomes material in the administration of justice.” I may close these sayings of eminent jurists with the language of Chief Justice Gibson, upon stock-jobbing contracts; Wilson v. Davis, 5 W. & S. 523: “ To have stipulated,” says he, “ for a right to recruit on separate account, would have given to the agreement an appearance of trick, like those of stock-jobbing contracts, to deliver a given number of shares at a certain day, in which the seller’s performance has been forestalled by what is called cornering; in other words, buying up all the floating shares in the market. These contracts, like other stock-jobbing transactions, in which parties deal upon honor, are seldom subjected to the test of judicial experiment, but they would necessarily be declared fraudulent.”

Without adding more, I think it is conclusively shown that what is called the market price, or the quotations of the articles for a given day, is not always the only evidence of actual value, but that the true value may be drawn from other sources, when it is shown that the price for the particular day had been unnaturally inflated. It remains only to ascertain whether the defendant gave such evidence as to require the court to submit to the jury to ascertain and determine the fair market value of crude oil per gallon, on the 31st of December 1869, as demanded by the defendant in his fifteenth point. There was evidence from which the jury might have adduced the following facts, viz.: That in the month of October 1869, a number of persons of large capital, and among them Kirkpatrick & Lyons, combined together to purchase crude oil, and hold it until the close of the year 1869; that these persons were the holders, as purchasers, of a large number of sellers’ option contracts, similar to the one in suit; that they bought oil largely, and determined to hold it from the market until the year 187 0 before selling; that oil, in consequence of this combination, ran up in price, in the face of an increased supply, until the 31st day of December 1869, reaching the price of seventeen to eighteen cents per gallon, and then suddenly dropped as soon as the year closed. Major Frew, one of the number, says: It was our purpose to take the oil, pay for it, and keep it until January 1st 1870, otherwise we would have been heading the market on ourselves. Mr. Long says that on the 3d of January 1870 he sold oil to Fisher & Brother (the plaintiffs) at thirteen cents a gallon, and could find no other purchaser at that price. Several witnesses, dealers in oil, testify that they knew of no natural cause to create such a rise in price, or to make the difference in price from December to January. It was testified, on the contrary, that the winter production of oil was greater in December 1869 than in former years by several thousand barrels per day, a fact tending to reduce the price, when not sustained by other means. Mr. Benn says he knew no cause for the sudden fall in price on the 1st January 1870, except that the so-called combination ceased to buy at the last of December 1869.

It was, therefore, a fair question for the jury to determine whether the price which was demanded for oil on the last day of December 1869 was not a fictitious, unnatural, inflated and temporary price, the result of a combination to “bull the market,” as it is termed, and to compel sellers to pay a false and swollen price in order to fulfil their contracts. If so, then such price was not a fair test of the value of the oil, and the jury would be at liberty to determine, from the prices before and after the day, and from other sources of information, the actual market value of the oil on the 31st of December 1869. Any other cause would be unjust and injurious to fair dealers, and would enable gamblers in the article to avail themselves of their own wrong, and to wrest from honest dealers the fruits of their business. It cannot be possible that a “ corner,” such as took place a few weeks since in the market for the stock of a western railroad company, where shares, worth in the ordinary market about sixty dollars each, were by the secret operations of two or three large capitalists, forced up in a few days to a price over two hundred dollars a share, can be a lawful measure of damages. Men are not to be stripped of their estates by such cruel and wrongful practices; and courts of justice cannot so wholly ignore justice as to assume such a false standard of compensation. Our views upon the effect of the affidavit of defence, on which the learned judge in a great measure ruled the question of damages, will be expressed in the case of Kountz v. The Citizens’ Oil Refining Co., in an opinion to be read immediately.

Judgment reversed, and a venire facias de novo awarded.

Sharswood and Williams, JJ., dissented on the question of the measure of damages.


source: Caselaw Access Project

author: Agnew, J. — Sharswood, J.

license: Public Domain

text:
    Kountz versus The Citizens’ Oil Refining Co., to the use of Fisher.
    1. K. sold oil to O. to be delivered December 31st. In a suit for nondelivery ;of the oil, defendant offered to prove: 1. That about the time of delivery the principal oil dealers made a combination to create an artificial scarcity to compel defendant to pay extravagant prices or be liable for unnatural damages. 2. That the market value of oil was less than it had been raised to by the combination. 3. That plaintiffs, being producers of oil, bound themselves with a railroad not to send oil except by that road, for the purpose of showing a combination to restrict the supply of oil. Held, that the rejection of these offers was error. ■
    2. Usually courts are interpreters of their own rules.
    3. The affidavit of claim averred that, at the time of delivery, oil was worth 18 cents per gallon; the affidavit of defence averred that by the combination oil was raised to 18 cents, and that the fair market price was less than 18 cents. Held, that this set out a good defence to a claim based on an inflated price.
    4. The averment in the affidavit of defence, that the combination had raised the price to 18 cents, was not an admission that 18 cents was the market value.
    November 14th 1872.
    Before Thompson, O. J., Read, Asnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 87, to October and November Term 1872.
    This was an action of assumpsit, brought August 30th 1870, by . the Citizens’ Oil Refining Company, to the use of Frederick Fisher and others, trading as Fisher Brothers, against William J. Kountz.
    The plaintiffs’ affidavit of claim set out as follows, viz : — That the defendant, by acceptance of the same, entered into the following contracts:—
    “ Pittsburg, June 7th 1869.
    “ Sold to Citizens’ Oil Refining Company, for account of W. J. Kountz, one thousand barrels of good, green merchantable crude petroleum, forty gallons to the barrel, gravity to be from forty to forty-six degrees at a temperature of 60° Fahrenheit. To be delivered seller’s option, during the present year 1869, in bulk boats or cars as sellers may elect, at the Citizens’ Oil Works, or at any other oil works near Pittsburg, that buyers may direct. Payment to be made cash on delivery, at the rate thirteen and one-half cents per gallon.
    Waring & King,
    Brokers.”
    “ Pittsburg, June 17th 1869.
    “ Sold to the Citizens’ Oil & Refining Company, for account of W. J. Kountz, Esq., one thousand barrels, good, green merchantable crude petroleum, forty gallons to the barrel, gravity forty to forty-six degrees, at a temperature of 60° Fahrenheit, to be delivered at seller’s option, at any time from the first day of August to the thirty-first day of December, (both days inclusive) 1869, in bulk cars, or bulk boats at or near Pittsburg. If delivered by Allegheny Valley or Western Pennsylvania Railroads, the buyer may designate any other point of delivery on line of said roads; if delivered by water, then at any good landing in or near Pittsburg buyer may direct. Payment to be cash on delivery at the rate' of fourteen cents per gallon, on lots as gauged and delivered.
    Richard T. Leech.”
    “ On the 31st day of December 1869, the said defendant was notified that the vendee of said oil was ready and willing to receive and pay for the same, and demand was made of the defendant that he deliver the same according to the terms of said contracts respectively ; but the defendant, on the day and year last aforesaid, refused to deliver the oil, although the vendee was ready and willing to receive and pay for the same according to the provisions of said contracts respectively.
    “ On the 31st day of December 1869, the market price of oil of the quality specified in said recited contracts, and at the places of delivery therein mentioned, was 18 cents per gallon, and the vendee sustained damage to the amount of $3400.
    (Signed) Frederick Fisher.”
    On the 14th of September 1870, judgment was entered against the defendants by default for $3544.50. The judgment after-wards was opened, and the defendant let into a defence on the condition that he should, within five days, file “ a full and specific affidavit of defence, which shall be subject to the same rules of court as if the same had been filed before judgment entered.” Under this condition the defendant filed an affidavit of defence, viz.:—

      “ That the said equitable plaintiffs, Fisher Brothers, between the 7th of June 1869, and the 31st of December 1869, with others, entered into a combination to purchase oil here in the county of Allegheny, as well as in the oil-producing districts of Pennsylvania and West Yirginia, and keep it out of the market, and thereby create a scarcity and consequently enhance the price, for the purpose of preventing this affiant (and others who had entered into like writings of the character of those on which this writ is brought) from fulfilling his engagements set forth in said writings, so that great gains and profits might be realized, by recovering the difference between the price promised in said writings and the advanced price brought on as aforesaid ; and in furtherance of said illegal object, the said plaintiffs (with others, their confederates) used their influence and efforts to prevent oil from being brought to the city of Pittsburg from the oil-producing districts for the purpose aforesaid; and further, the said plaintiffs, with their confederates, for the purpose of preventing this affiant (and others who had entered into like writings with the one sued on) from fulfilling his said engagements, and other engagements of a similar character, and from having oil shipped on the Allegheny Yalley Railroad to the city of Pittsburg, from the oil-producing districts of Pennsylvania, monopolized the freight cars of said road (the river, most of the time, being too low to allow shipments by water), and rendered it impossible for this affiant to fulfil his engagements, as well as others of a like kind— and by said illegal proceedings, actions and doings of the said plaintiffs (and others, their confederates), they, the said plaintiffs, did succeed in raising the price of oil between the aforesaid two dates from 13J cents to 18 cents per gallon, thereby to a great extent contributing to prevent this affiant from being ready and prepared to deliver the 2000 barrels mentioned in said writings, between the dates aforesaid; and this affiant would further state (and is prepared to prove), that the fair market price of oil (such as is described in said contracts) on the 31st of December 1869, was considerably less than 18 cents per gallon. This affiant expects to be able to prove all the above facts on the trial of this case; and this affiant would further aver, and expects to be able to prove, that he would have fulfilled his said engagements had it not been for the doings and actions of said plaintiffs (and others, their confederates) above set forth; and he would further state, that as soon as the market was relieved from the above combination, to wit, within a few days after the 31st of December 1869, he procured and tendered oil, of the character described in said contracts, in fulfilment of the aforesaid contract sued on. And he would further state that the above combination was entered into for the purpose of preventing him from fulfilling his said contracts by the said plaintiffs and their confederates. * * *

      W. J. Kountz.”

      On the trial, April 26th 1872, before Sterrett,' P. J., the defendant made the following offers of evidence, which were rejected, and several bills of exceptions sealed:—
    “ 1. To show by Henry M. Long, the witness on the stand, that in the latter part of the year 1869, and particularly on the 31st of December 1869, a combination existed, to which the principal dealers in oil in the county of Allegheny were parties, to withhold all the oil in their control from the market, and to create an artificial scarcity and a fictitious price of oil, with a view of compelling the defendant, and all others holding similar contracts, to pay an extravagant price for the same, or be liable for damages on their contracts, in excess of the natural and fair price of oil, if such combination had not existed. The purpose of this offer is to show that the price of oil on the 31st day of December 1869, asserted by plaintiffs in their affidavit of claim,upon which they have liquidated their judgment, was not the fair and natural price, and that hence the judgment should be abated to such amount as the jury may find under the evidence would be the difference between the contract price and the fair and natural market price.

      “2. The market price of oil on the 31st of December 1869, Was not 18 cents per gallon, as alleged in the plaintiffs’ affidavit of claim, upon the basis of which the judgment was liquidated, but that the actual market price was 14f- cents per gallon. This to enable the jury properly to assess the damages to which, if any, the plaintiffs are entitled.

      “ 3. To show that Fisher Brothers, for whose use this suit is brought, being producers of oil, had prior to the maturity of the contracts in suit, bound themselves, by a contract with the Allegheny Valley Railroad Company, not to send oil to this market, except by the road of said company — this for the purpose of showing that said equitable plaintiffs were parties to an illegal combination to restrict the supply of oil to this market, and thus prevent defendant from filling his contracts, unless subject to the penalty of an artificial and fictitious price thus created.”
    There was no written charge of the court, other than the rejections of the offers of defendants.
    The verdict was for the plaintiffs for $3544.50, with interest from September 14th 1870.
    The defendant removed the record to the Supreme Court by writ of error. He assigned for error the rejection of his offers of evidence.

      S. U. Geyer and G. Shiras, Jr., for plaintiff in error,
    cited the same authorities as in the preceding case of Kountz v. Kirkpatrick, ante, p. 376.

      M. W. Aeheson, for defendants in error, also cited the same authorities as in the preceding case.
    January 6th 1873,
   The opinion of the court was delivered, by

Agnew, J. —

In Kountz v. Kirkpatrick & Lyons, opinion just read, we have held that a temporary, unnatural and inflated market price, produced by a combination of dealers in oil, for selfish and personal gain, is not the true measure of the value of that article of trade; and that on showing such a state of the market on the day of the performance of his bargain, the defendant could resort to the market prices prevailing just before and after the day, and to other evidence of the true market value of the article, to enable the jury to ascertain the,par value of the article on that day, as the measure of the damages for his breach of contract. The refusal of the court below to receive evidence for this purpose in this case was therefore error.

It is argued that this refusal of the court was founded upon a proper interpretation of the aflidavit of defence filed by the defendant, by the order of the court in this case, and under its general rule. It is to be conceded that usually the courts making rules of practice are the best judges of their interpretation and application; but the question here arises upon the true interpretation of the aflidavit itself rather than upon the rule. We have said heretofore that too much nicety should not prevail in considering affidavits of defence, when a,solid or substantial defence is really set forth; otherwise the rule will be converted into a snare to entrap justice: Leibersperger v. Reading Savings’ Bank, 6 Casey 531; Thompson v. Clark, 6 P. F. Smith 33. This affidavit sets forth in unambiguous terms an illegal combination of the plaintiffs and others to buy up oil, create a scarcity and enhance the price, for the very purpose of preventing the defendant from complying with his contract, and to enable them to make great gains. It sets forth also the means whereby this purpose was accomplished, and that the confederates succeeded in raising the price of oil between the dates named in the affidavit from 13^ cents up to 18 cents per gallon. It also states that on the 31st of December 1869, the day when the contract was to be performed, the fair market price of oil was considerably less than 18 cents per gallon. Now, clearly, this would have been a good defence to the inflated, fictitious and temporary price as a proper measure of damages. But the court below thought that the statement, that the confederates succeeded in raising the price on the 31st of December 1869, to 18 cents a gallon, was an admission of that being the market price. It was an admission of an inflated market price, but not that it was the fair market value of the oil. What the defendant averred substantially was, that the market price on that day was the result of an unlawful combination to put up the price, but that the fair market value of the oil was considerably less than 18 cents per gallon, which was the price sworn to in the plaintiffs’ affidavit of claim. What more could the defendant say truthfully ? He could not conscientiously deny that the apparent price in the market on that day was 18 cents; but he could conscientiously say that the price was not the fair and true market value of the oil on that day, and that the fictitious and inflated price was not the true measure of the damages. This he did say substantially, and he should have been permitted to prove the truth of his averments. The affidavit of defence had performed its office, he was now on the trial of its truth, and he clearly had not admitted that 18 cents ivas the fair market value of oil on that day.

Judgment reversed, and a venire facias de novo awarded.

Sharswood, J.

— I concur on the authority of Kountz v. Kirkpatrick & Lyons.

Williams, J., dissented.


author: Sharswood, J.

text:
    O’Hara and Wife versus Dilworth and Chambers.
    1. A guardian, by_ order of the Orphans’ Court, sold land of three female wards, in which their mother had dower; there was evidence of a family arrangement before sale that it should be bought for F., a married ward, at less than its value, and the mother would release her dower ; the land was sold to the husband, the deed made to him because the wife was a minor, and he promised to convey to her ; he gave a mortgage for the deferred payments; the wife, after coming of age, received her share of the mortgage from a purchaser of the husband’s title, under proceedings in bankruptcy. Held not to be sufficient to submit to the jury on the question of a resulting trust in the wife.
    2. Five months after the sale the husband conveyed to trustees for the separate use of the wife, and the deed was recorded. Held, sufficient to put purchasers under bankruptcy upon inquiry as to the title of the wife.
    3. The wife with her husband afterwards executed a release to the purchasers. If her title were good under the trust deed the release did not pass it.
    4. The wife having paid none of the purchase-money under the guardian’s sale, and there being no fraud, the husband’s promise being parol, a trust was not created under the Statute of Frauds.
    5. Nixon’s Appeal, 13 P. F. Smith 279; Seichrist’s Appeal, 16 P. F. Smith 237, distinguished.
    November 14th and 15th 1872.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: of October and November Term 1872, No. 95.
    On the 7th of September 1871 Michael O’Hara and Frances A., his wife, for her use, brought an action of ejectment against Joseph Dilworth and Alexander Chambers, for a lot of land in Liberty township, containing about 15 acres.
    The cause was tried, May 23d 1872, before Sterrett, P. J.
    The title to the land was in John McFarland, who died seised of the same in 1861, leaving a widow, Maria McFarland, and three minor children: Sarah D., afterwards married to A. M. Barr; Frances A. (plaintiff), afterwards married to Michael O’Hara, and Ada P. William Harrison was appointed guardian of the persons and estates of the minors. On the 17th of February 1867, Harrison, as guardian of these minors, sold the premises, by order of the Orphans’ Court, and by deed, in which the widow joined, to pass her interest, conveyed the premises to Michael O’Hara for $14,937.50. On the same day O’Hara made a mortgage to Harrison, as guardian of Frances A. O’Hara, Sarah D. McFarland, and Ada P. McFarland, to secure $12,447.91, the deferred payment of the purchase-money, including the widow’s share. For the remainder of the purchase-money, which was the hand-money, he gave his judgment-note for $2489.58. On the 10th of July 1866, O’Hara and wife conveyed the premises to William Harrison and Gilbert L. B. Fetterman, in trust for the separate use of Frances O’Hara, one of the grantors; this deed was recorded August 3d, 1866.
    The defendants gave evidence from the records of the District Court of the United States for the Western District of Pennsylvania in Bankruptcy, that Michael O’Hara, on the 9th of November 1867, was adjudged a bankrupt, and J. G. MacConnell and J. M. Kennedy were duly appointed his assignees. On the 30th of May 1868 Harrrison was discharged from his trust under the deed from O’Harra. On the 23d of May 1868, the remaining trustee, with O’Hara and wife, conveyed the premises to the assignees in bankruptcy: A. M. Barr was afterwards appointed guardian of Frances A. O’Hara, in the place of William Harrison, and on the 14th of June 1869, by order of the Circuit Court of the United States, on the complaint of the assignees that the trust deed for Mrs. O’Hara was fraudulent, Michael O’Hara and Frances A. his wife, and Barr as guardian, executed a deed for the premises to MacConnell and Kennedy, the assignees. On the 31st of July 1869 the assignees, in pursuance of a sale made by them and confirmed by the District Court of the United States, conveyed the land to Dilworth and Chambers for $23,059.81, subject to the mortgage from O’Hara to Harrison.
    Frances O’Hara arrived at full age on the 24th of August 1869, and on the 25th she, with her husband, executed a quit-claim deed of the premises to Dilworth and Chambers, the defendants.
    The defendants gave evidence that O’Hara had been one of the firm of O’Hara & Robinson, that on the 10th of July 1866, when the conveyance was made by O’Hara in trust for his wife, that firm was heavily in debt and was insolvent, and that the firm and O’Hara continued insolvent.
    They gave evidence also that on the 25th of August 1869, the day the quit-claim deed was executed, J. M. Kennedy, on behalf of Dilworth and Chambers, paid by their checks to Mrs. O’Hara, in the presence of her husband, and with his consent, the sum of $2970.68, her share of the purchase-money of the land sold by her guardian and secured by the mortgage given by O’Hara to the guardian; and that both Mr. and Mrs. O’Hara signed a receipt for this sum on the margin of the record of the mortgage; that the quit-claim deed was prepared, and these proceedings had under the supervision and direction of N. P. Fetterman, Esq., who was of counsel with the O’Haras, and that the receipt was written on his dictation; the quit-claim deed was executed and in the hands of Mr. Kennedy at the time the checks of Dilworth and Chambers were given to Mrs. O’Hara.
    The plaintiffs, in rebuttal, called Mrs» McFarland, the widow, who testified that when the premises were sold to O’Hara, at the Orphans’ Court sale, he bought it for his wife, so that it should not go out of the family whilst she lived; that when witness executed the deed, O’Hara promised her that he would have it “fixed” for his wife; that the deed was not made then to Mrs. O’Hara, because she was not of age.
    Mrs. Barr testified that it had been understood at the sale that the property was sold as Mrs. O’Hara’s share; O’Hara did not want the deed made to himself, but their attorney advised that Mrs. O’Hara could not take the deed because she was not of age ; an offer of a higher price was made, but Mrs. McFarland said she would not convey to any one but for Mrs. O’Hara.
    Gr. Himmelwright testified that there was a family arrangement about the time of the sale, that the property should be sold to Mr. O’Hara for Mrs. O’Hara, and the family fixed $1000 per acre as the price that O’Hara was to give.
    Mrs. O’Hara testified that it was understood in the family that this property was to be for her; her sisters gave it up to her to be a home for her, and the Orphans’ Court sale was made so that she should get a good title.
    Harrison, the guardian, testified that the sale was for Mrs. O’Hara; that it was understood she was to have that part, and Mrs. Barr the other part on the hill; that it was intended to be conveyed to her, but counsel advised that it could not be so done, because, being under age, she could not execute a mortgage; witness would not have sold the property, except for the understanding that O’Hara was buying for his wife.
    O’Hara testified that he bought the property for his wife, and that the deed was made to him under the advice of counsel, because she was a minor. The price $1000 per acre was fixed by the family before the sale, under the arrangement that the property was to be for Mrs. O’Hara. At the time of the sale, witness considered himself worth $100,000, and did not suppose that the firm of O’Hara & Robinson was insolvent.
    At the time Mrs. O’Hara executed the quit-claim deed he told her to do so, as he, and perhaps herself, would be put into jail; she said she would sign anything rather than go to jail.
    There was evidence by A. M. Barr and Mrs. O’Hara, that the deed was executed by her against her will, under the fear that she would be imprisoned, by virtue of attachments under the bankruptcy proceedings, if she did not do so.
    The parties respectively submitted a large number of points; those which raise the questions considered and decided by the Supreme Court are the following: — ■
    By the plaintiffs: — ;
    1. If the jury find from the evidence that the family of Mrs. O’Hara procured the sale of the property in controversy, at No. 148 October Term of the Orphans’ Court, for the purpose of giving said Mrs. O’Hara the property, and that at such sale Michael O’Hara bid it in for Mrs. O’Hara, and that the deed was made to him against his desire, but for temporary convenience, and that Mrs. O’Hara’s mother joined in said deed only on the understanding that the property was to be passed to her daughter; that Michael O’Hara, within less than five months thereafter, made over said property according to the arrangement, for his wife, as set forth in the deed of trust of July 10th 1866, and did not pay for said property of his own means, but for the purchase-money gave security and lien on the land; then the said deed of trust was valid, and the property could not be taken by the creditors of Michael O’Hara, without Mrs. O’Hara making a legal transfer, by her own voluntary act, after full age.
    2. If the facts set forth in the foregoing point are as shown by the evidence, and the testimony of Mrs. McFarland, Mrs. Hummelright, ffm. Harrison, Mrs. Barr, Mr. and Mrs. O’Hara — which testimony is undisputed — then all the evidence of the indebtedness of Michael O’Hara, on the 10th of July 1866, or subsequently, so far as made out on this trial, would not invalidate the deed of trust of said July 10th 1866, and the jury should disregard the same.
    9. If the property was sold, and bid in on a family arrangement, as testified to by Wm. Harrison, M. O’Hara, and other witnesses, and the deed of trust was made pursuant thereto, there was a good consideration for said deed of trust, and the deed©f trust must be held valid, unless it is shown affirmatively and clearly that it was made also with the purpose of defrauding creditors, that Mrs. O’Hara was party to such purpose, and that creditors were defrauded thereby.

      12. As, at the time of the application, or petition to the Orphans’ Court, for the sale of the real estate in controversy, the said Mrs. Frances A. O’Hara was then a married woman, the wife of M. O’Hara, who was responsible for her maintenance and education, which facts were not disclosed by said petition, that the order of sale, and all proceedings under it, were void, and the one-third interest of Mrs. Frances O’Hara, the plaintiff therein, was not divested by said sale.
    13. The purchase by the husband, of the wife’s property, under said proceedings, was a legal fraud upon the rights of the wife; and the husband, in law, held the one-third of the property so purchased in trust for the wife.
    14. Where a husband purchases the property of his wife, at judicial sale, during coverture, and while the wife is a minor, even if he pays a full consideration therefor, yet he takes the title in trust for the wife, and neither he, nor his vendees, can set up title against her after she arrives at her majority.
    These points were refused.
    The defendants’ first point which was affirmed was:—
    The parol testimony offered by the plaintiffs to show title in Mrs. O’Hara, prior to the deed of July 10th 1866, is insufficient for that purpose.
    In the conclusion of his charge, Judge Sterrett said:—
    * * * “As we have said in the outset, in the absence of evidence establishing a defence on one or more of the grounds presented, the plaintiffs would be entitled to your verdict; but we submit for your consideration the grounds of defence already referred to at length, viz.: 1st, that the deed of conveyance from O’Hara and wife to Fetterman and Harrison, of July 10th 1866, was fraudulent and void; and 2d, that the receipt by Mrs. O’Hara of the $2970.68 of the purchase-money mortgage, in connection with the quit-claim deed of August 25th 1869, operate either as an estoppel or confirmation of the defendants’ title.
    “ If you find for the defendants on either of these grounds, you will state, as part of your verdict, on which of them you find. If you find for the defendants on all of the grounds of defence presented and submitted to you, you will say in your verdict that you so find. We wish you to pass upon each ground of defence submitted to you, and return your verdict in such form as to show upon what it is based.”
    The jury returned a verdict for the defendants on each of the grounds submitted by the court.
    The plaintiffs took a writ of error, and assigned the instructions of the court for error.

      M. A. Woodward (with whom were O. >S. Ammond and J. Barton), for plaintiffs in error.

      M. W. Acheson, (with whom were J. M. Kennedy and B. J). Bruce), for defendants in error.
    November 22d 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— A careful consideration of the voluminous record and paper-books in this case has brought us to the conclusion that it all depends upon the solution of a single question, which is whether there was any evidence which ought to have been submitted to the jury of a resulting trust, within the exceptions contained in the Statute of Frauds, in favor of Mrs. O’Hara prior to the execution of the deed of July 10th 1866, by Michael O’Hara to William Harrison and G. L. B. Fetterman in trust for her use ? The verdict of the jury establishes that the deed just mentioned was! fraudulent and void as against the creditors of Michael O’Hara, and we see no reason to doubt that there was evidence in the cause which made that proper for the determination of that tribunal. If, however, there was such a resulting trust as could have been enforced consistently with the provisions of the statute against Mr. O’Hara, before the date of that deed, the evidence should certainly have been submitted to the jury ; for it is very clear that if found by them it was not open to the attack of the creditors. It may be conceded that the deed being upon record, the defendants, deriving title from the assignees in bankruptcy, could not set up the defence that they were bond fide purchasers for value without notice; for the record of the deed was sufficient to put them upon inquiry as to whatever facts might exist to sustain it as a valid conveyance, and was therefore notice of such facts. They knew they must defeat that deed, and must be prepared to meet whatever would be available to disprove the allegation of fraud, and show it to be fair and honest. It may also be conceded that if the deed of trust for the separate use of Mrs. O’Hara could be sustained, her subsequent deed and release were ineffectual to pass her title under the decision of Lancaster v. Dolan, 1 Rawle 231, Thomas v. Folwell, 2 Whart. 11, and the other cases which have followed their lead.

The question being, as we have stated it, whether there was such a resulting trust as could have been enforced against Mrs. O’Hara independently of the deed' of July 10th 1866, the evidence must be such as, if believed by the jury, ought to satisfy the conscience of the judge sitting as a chancellor. This is so well settled and familiar a principle of our jurisprudence that it is no longer necessary to cite the authorities for it.

Mr. O’Hara became the purchaser at a sale under an order of the Orphans’ Court made by William Harrison as guardian of his wife and her two sisters, the children of John McFarland, deceased. The purchase-money was fourteen thousand four hundred and thirty-seven dollars and fifty cents. His bond and mortgage of the premises were taken for twelve thousand four hundred and forty-seven dollars and ninety-two cents, and for the hand-money, two thousand four hundred and eighty-nine dollars and fifty-eight cents, his judgment-note. These amounts were all subsequently discharged: the hand-money from the proceeds of sale of other property of Mr. O’Hara, and the mortgage by 'the purchasers of the land in question from his assignees in bankruptcy, who bought subject to it. No part of the purchase-money was paid by Mrs. O’Hara, but she received her share of the mortgage from the hands of the purchasers. There certainly was in no sense any actual payment by her which could raise a resulting trust. Nor was there any fraud within the sense of the decisions. Had Mr. O’Hara refused to convey according to his promise, it would be a mere breach of a parol agreement, which has been uniformly held not to create a trust within the exception of the statute: Jackman v. Ringland, 4 W. & S. 149; Barnet v. Dougherty, 8 Casey 371. The testimony of the witnesses certainly establishes that it was the understanding of the family that he was buying for his wife, and that he promised that “ he would buy it for Mrs. O’Hara and keep it so that it would not go out of the family while she lived.” It is possible that in consequence of this promise the family made no opposition to his purchase, and he may have acquired the property at a less price than he would otherwise have been obliged to pay. It is sufficient to refer to Nixon’s Appeal, 13 P. F. Smith 279, to show that this was not sufficient- to create a trust e% maleficio. The circumstances of that case are much stronger in these respects than the one in hand. It is true that if a man procures a title from another which he could not have obtained except by a confidence reposed in him, if he abuse that confidence he is converted into trustee ex maleficio, as in Seichrist’s Appeal, 16 P. F. Smith 237. There is no evidence of any such breach of confidence on the part of Mr. O’Hara. He meant to perform his promise, and he did perform it, but unfortunately he was in such circumstances that according to the finding of the jury his performance of the parol promise was in law a fraud on his creditors. As his mere parol promise could not raise a trust in favor of his wife, it ought not to prevail against the superior claims of his just creditors. It has been urged, however, and this is indeed the pinch of the case, that the evidence was sufficient to show that his purchase was under a family arrangement for the partition of Mr. McFarland’s estate among his three daughters, and that in point of fact this land was taken by Mr. O’Hara either in whole or in part on account of his wife’s share. It may be that if this had been clearly and distinctly proved it would have saved her title. But the evidence relied on as tending to show this was so vague and indefinite as clearly not to fall within the strict rule established as to the proof of resulting trusts. Mrs. Barr (one of the daughters) says, “ it was understood that it was sold as part of her (Mrs. O’Hara’s) share.” Mrs. O’Hara testified, “Both my sisters gave it up to me to be a home for me and Mr. Harrison, the guardian, said, “ When I sold the property the understanding was among them that Mrs. O’Hara was to have that part of the hill, and Mrs. Barr the other, where Dr. Barr’s house now is.” There was no evidence of any partition of Mr. McFarland’s estate, and of course none of any deduction from Mrs. O’Hara’s just share of the residue in consequence of the conveyance of this land to her husband. There was no evidence that Mrs. Barr had a similar advantage conceded to her, and certainly none as to the other sister. There was no mutuality in the arrangement so far as appears. Supposing it proved, what would be the interest of Mrs. O’Hara in this land? In justice and equity nothing beyond what it should appear to have been worth more than the sum at which it was bid off at the sale. As to that the evidence is equally vague and indefinite, and indeed from Mr. O’Hara’s own testimony it may well be doubted whether he gave any less for the property than its fair market value at the time of the sale. No chancellor upon a bill for the partition of the remaining property of Mr. McFarland would have allowed any weight to such testimony as this to reduce the equal share of Mrs. O’Hara. The conclusion is that no resulting trust was made out, and the learned judge was perfectly right in not submitting the question to the jury.

Judgment affirmed.


text:
    Dormer et al. versus Brown.
    1. Proceeds of a sheriff’s sale being in court for distribution, on petition and affidavit alleging fraud, the court awarded an issue to the right to the fund. On trial of the issue the jury failed to agree and were discharged. The court being of opinion that there was no evidence of fraud, on application, struck off the issue. Held to be error.
    2. A party interested having complied with the provisions of the Acts of June 16th 1836, sect. 87, and April 20th 1846, sect. 2 (Executions), is entitled of right to an issue in the distribution of the proceeds of a sheriff’s sale.
    3. When it appears on the trial that there is no evidence of the allegar tions on which it was granted, the court should so instruct the jury, and the ruling could be reviewed in the Supreme Court.
    4. The proceeding is not a chancery process, but statutory; the suitor’s right is constitutional, and the court has no discretion.
    November 15th and 16th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1872, No. 106.

      In 1865 W. H. Brown, by virtue of several warrants of attorney, caused three judgments to be entered in the District Court of Allegheny county, against Jenkins, Nish & Co., and Jenkins, Hill & Co., firms composed of the same members, except that Hill was in the latter firm only. Subsequently, in 1866, Alonzo Inskeep, I. C. Anderson, Eliphalet Downer and Joseph Kiddoo recovered judgments against the same defendants.
    Brown, to April Term 1868, issued executions on his judgments under which the real estate of the defendants was sold by the sheriff.
    The sheriff, under the Act of April 10th 1862, relating to the distribution of the proceeds of sheriffs’ sales of real estate in Allegheny county, made a special return of the liens appearing of record against the land sold, and a distribution of the fund in his hands. Before the return was confirmed, Downer, Inskeep, Kiddoo and Anderson presented' a petition to the District Court, setting forth that they believed, and expected to prove, that the defendants were not indebted to Brown in the amounts of the judgments to him, but that they had been confessed for a much larger sum than was due, for the purpose of hindering, delaying and defrauding the petitioners and other creditors of the defendants, and to prevent their property from being taken in execution for their debts.
    The prayer of the petition was that the court would award an issue to try the validity of Brown’s judgments.
    On the 15th of August 1868 an issue was awarded as prayed for, the petitioners to be plaintiff and Brown defendant.
    The issue was tried on the 7th of December 1870, when a verdict was rendered for the plaintiff; the court set aside the verdict, and ordered a new trial.
    The cause was again tried December 19th 1871, when the jury failed to agree, and were discharged by the court.
    On the 16th of March 1872 Brown presented a petition to the court, setting out the facts of granting the issue, the two trials, and their results. The petition further set out:—

      “ The said testimony was wholly insufficient to warrant a jury in finding any of the issues in favor of the plaintiffs; but, on the contrary, cannot fail to satisfy your honors, and doubtless did satisfy his honor who tried the issue, sitting as a chancellor, that your petitioner’s judgments, instead of being fraudulent or paid off, were taken in good faith for a bond fide debt, and that a balance of several thousand dollars was still due on them; and moreover, your petitioner avers that plaintiffs failed to prove a single fact which legitimately showed or tended to show that the judgments in controversy were fraudulent or had been paid. * * * Your petitioner is now threatened with another trial, which can only be had at great loss and expense of time and money to your petitioner, and also to the serious detriment of the public interests by the unnecessary consumption of the time of court and jury. Your petitioner is advised that in the matter of feigned issues to try the validity of judgments, your honors sit as chancellors, and that the legitimate purpose of their trial is to inform their consciences as such; and he therefore prays your honors, one of whom has already most patiently heard the whole testimony as given in the case, to review the same, and if satisfied that there was no testimony given which in your opinion would warrant a jury in finding the issue for the plaintiffs, that you will strike the said issue from the record, and direct the sheriff to proceed in the distribútion of the fund according to the liens of record-, and as if said issue had not been granted.”
    After argument, the court (Hampton, P. J.) delivered an opinion as follows: — ■
    “ * * * A careful examination'of the evidence on file cannot fail to satisfy any rational mind that there was no fraud whatever practised or intended by the defendant in obtaining or keeping alive his liens. The plaintiffs were not even creditors at the time these liens were obtained, nor for a long time afterwards. But if they had been, the evidence utterly fails to show that the defendant claims one dollar that he is not justly entitled to recover. Had the same evidence been before us at the time this issue was awarded that we now have, the issue would not have been granted. I only regret now that I did not give the jury my opinion on the evidence when charging them. I did, however, in this as in all other cases where I think the evidence is too clear to admit of any doubt. The facts were left to them, without any doubt as to their verdict.
    “ The granting of an issue like the present is a quasi proceeding in chancery, where the court, under the provisions of the act, may refuse an issue, unless the facts presented will justify it, and if the court may refuse the issue, I do not see why it may not set aside the same, after all the evidence is given, if, in the opinion of the court, such issue is not warranted. Why should the parties be put to the expense and trouble of another trial, when the court would be compelled to set aside the verdict if it should be against the overwhelming weight of evidence, as it would have been in this case, had it been in favor of the plaintiffs ?”
    The decree was: — ■
    “ The court make this rule absolute, and direct that the feigned issued, heretofore granted in this case, be stricken from the record and the sheriff proceed in the distribution of the fund according to the liens of record, and, as if said issue had not been granted, subject to a writ of error or appeal by the applicants in this case as provided by law.”

      The plaintiff removed the record to the Supreme Court and assigned the decree for error.

      B. F, Lucas (with whom was P. O. Shannon), for plaintiffs in error.
    — An issue was of right: Acts of June 16th 1836, sect. 87, Pamph. L. 777; April 20th 1846, sect. 2, Pamph. L. 411; 1 Br. Purd. 656, pl. 108, 109; Bichel v. Rank, 5 Watts 140; Reigart’s Appeal, 7 W. & S. 267; Trimble’s Appeal, 6 Watts 133.

      B. Woods (with whom was 11. Burgwin), for defendants in error.
    —If it be clear to the court that there is no fact in dispute, although so alleged, the court is not bound to award an issue: Knight’s Appeal, 7 Harris 493. Such issue is a chancery proceeding, to inform the conscience of the court: Shulze’s Appeal, 1 Barr 251; Ringwalt v. Ahl, 12 Casey 336.
    November 22d 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— The only question presented on this record lies within a very narrow compass. Had the plaintiffs in error a legal right to the feigned issue which was awarded in the court below upon their petition ? If they had, it was manifest error in the court to direct that it should be stricken from the record.

The answer to this question is dependent upon another — whether the issue was awarded at the request of the parties interested, for the determination of a fact or facts material to the distribution of a fund arising from a sale by the sheriff under process issuing from the court ? It appears by the record that such a sale had been made under an alias fi. fa. with waiver of inquisition of the lands of George Jenkins and others, comprising the firm of Jenkins, Nish & Co. Under the Act of April 10th 1862, Pamph. L. 364, entitled “ An Act relative to the distribution of the proceeds of sheriff’s sales of real estate in the county of Allegheny,” the sheriff had returned a list of the liens appearing of record, to which, according to the provisions of the act, the fund would be distributed by the sheriff in the order of their priority, unless exceptions were filed. Exceptions were filed to the award of any1 part of the fund to three judgments and a mortgage appearing upon the list in favor of William H. Brown, by the plaintiffs in error, who were creditors by judgment posterior in date. They thereupon presented a petition with accompanying affidavits, averring that the defendants, Jenkins, Nish & Co., were not indebted to William H. Brown in the amounts of said judgments and mortgage, but that the said judgments were confessed and taken for a much larger sum than was really due, for the purpose of hindering, delaying and defrauding the petitioners and other creditors of the said defendants, and to prevent the property from being taken in execution and made liable for the payment of the just debts of the said defendants, and that the mortgage was given to secure the said judgments with the same fraudulent purpose.

By the Act of June 16th 1836, sect. 87, Pamph. L. 777, it is provided, that if any fact connected with the distribution of the proceeds of a sheriff’s sale shall be in dispute, the court shall at the request in writing of any person interested, direct an issue to í try the same; and by the Act of April 20th 1846, sect. 2, Pamph. L. 411, it is further provided, that before such an issue shall be directed in such case the applicant shall make affidavit that there are material facts in dispute, and shall set forth the nature and character thereof.

It has not been, and cannot be denied, that the plaintiffs in error complied with these provisions, and if so, they had a legal right to the issue for which they prayed, of which it was not in the power of the court below to deprive them, and their refusal of the prayer would have been reversible on error to this court: Bichel v. Rank, 5 Watts 140 Trimble’s Appeal, 6 Id. 133; Reigart’s Appeal, 7 W. & S. 267; Benson’s Appeal, 12 Wright 159.

It is alleged, however, that upon the trial of the issue, the court wras of the opinion that there was no evidence which ought to satisfy the jury that the facts stated in the petition were true, and that they had, therefore, the right to strike the issue from the record. But if such was the case, it was clearly the duty of the court on the trial to give a peremptory direction to the jury to find a verdict for the defendants, or to enter a compulsory non-suit, and then on a writ of error, bringing up by bill of exceptions the entire evidence, this court could decide whether the opinion of the court was right. Now, however, we have here no writ of error to any judgment on the issue; no bill of exceptions setting out the evidence. It is true that the testimony, which is said to have been given, is attached to the record, but it requires no argument to prove that it is no part thereof, and is therefore not judicially before us.

Nor has it been successfully maintained that it was competent for the court below under any chancery powers to take the course complained of. No doubt when a feigned issue is awarded to try some fact not arising upon the distribution of the proceeds of a sheriff’s sale, as it is a matter entirely in the discretion of the court to direct such an issue, it is equally in their discretion to rescind the order. But the issue awarded in this case under the Acts of Assembly was not an issue to inform the conscience of the court, but to decide the facts in dispute material to the distribution, by a trial by jury, which is the constitutional right of the suitor. This it was the object of the acts to secure, and therefore their language is imperative, and it is our duty to enforce their plain mandate.

Order reversed, and procedendo awarded.