text:
    Farrell, to the use of Hughes, versus Lloyd.
    1. In the question of a resulting trust for a son in land bought by his father by articles; that the father had not sufficient means, that the son had, that the father about leaving home, said he was going to a locality named near where the land was to buy land for the son, that the son then handed him money, and that this was about the time the land was bought, was evidence on which a jtíry might find the trust.
    2. After the father's death the vendors under an indemnity from the son against any claim by his father's heirs, made the deed to him. The son afterwards sold the land; in a suit by him against his vendee for unpaid purchase-money, in which the vendee set up the title in the heirs of the father and in which it was alleged the vendee agreed to take the risk of the title, Held, that the son, knowing he had paid for the land, was not bound to inform his vendee of his having given the indemnity.
    3. If he had not paid the purchase-money and did not disclose that fact to his vendee, the vendee was not bound by an agreement to take the risk of the title.
    4. Lloyd a. Farrell, 12 Wright 73; Lloyd a. Lyneh, 4 Casey 419, compared.
    May-1871.
    Before Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Blair county: No. 73, to May Term 1871.
    On the 7th of February 1856, a judgment, Thomas Farrell for the use of Charles Hughes against Gilbert L. Lloyd’, for $2000, was entered in the Court of Common Pleas of Blair county by virtue of a warrant of attorney. On the 24th of September 1857, the defendant made an affidavit, that on the 1st of July 1854, he had bought from the plaintiff Farrell a tract of land warranted in the name of Abraham Bell for $6000, of which $1000 were paid in hand, and for the balance the defendant gave his bonds; one of them — that upon which the above judgment was entered — being for $2000, payable on the 1st day of July 1855; that on the day of the purchase the plaintiff délivered to the defendant an absolute deed in fee simple for the land, with covenant of warranty; that after the purchase, Catharine Lynch instituted an action of ejectment, in which she recovered an undivided third part of the land; the affidavit further averred that the land had been purchased by Barnabas Farrell by articles of agreement from James Ross and Peter Collins, to whom a portion of the purchase-money had been paid; that Barnabas Farrell died leaving three children, Thomas the plaintiff, Catharine Lynch and Elizabeth McCormick; that after the death of Barnabas, a deed was executed by Ross and Collins to Thomas the plaintiff for the whole tract; that Elizabeth McCormick had died leaving her husband and a minor child by whom the interest of Elizabeth in the tract was claimed, &c. On this affidavit the court on the 26th of August 1858 opened the judgment, and let the defendant into a defence. A trial had October 30th 1862 resulted in a verdict in favor of the plaintiff for $2880. The judgment on this verdict was reversed by the Supreme Court on the 22d of June 1864, and a venire de novo awarded (12 Wright 73). The case was again tried, February 2d 1871, before Taylor, P. J.
    The plaintiff gave in evidence the record of the judgment and rested.
    The defendant then gave evidence, viz.: Articles of agreement, dated October 7th 1841, between James Ross and Peter Collins of the one part and Barnabas Farrell of the other part, by which Ross and Collins sold to Farrell the tract of land containing 359 acres and 95 perches for $375, of which $160 were paid on the execution of the articles — $130 to be paid on the 1st of May 1842, and the remainder on the 1st of May 1843: a deed with general warranty to be made to Farrell upon his making the second payment.
    Barnabas Farrell died October 24th 1841, leaving three, childdren, as set out in the defendant’s affidavit.
    On the 9th of January 1843, Ross and Collins by deed with general warranty, acknowledging the payment of the purchase-money, $375, by Thomas Farrell, conveyed the land to Thomas Farrell in fee.
    On the — day of May 1854, Farrell the plaintiff, by articles, sold the land to Lloyd the defendant for $6000, of which $1000 were to be paid on the 1st of July 1854, when a deed was to be delivered to Lloyd, — $2000 on the 1st of July 1855; $2000 on the 1st of July 1856, and $1000 on the 1st of July 1857, these payments to be secured by bond and mortgage.
    On the 1st of July, Thomas Farrell conveyed the land to Lloyd in fee by deed with special warranty. On the 6th of March 1857, judgments were entered on the bonds for the other two payments of $2000 and $1000 respectively.
    The defendant read the deposition of Ross, in which he testified that shortly after Barnabas Farrell’s death and after the second payment for the land was due, he and Collins went to see about the payment, they saw Thomas. Ross asked him how he expected to get the deed, as they were bound to make it to his father, and he had left a widow and two daughters. Thomas gave a good many reasons why he should have the deed: one was that it was his money that had paid for the land; Ross was unwilling without a release from the widow and daughters. Collins insisted that the deed should be made. They finally agreed, upon Thomas entering into an agreement in the penalty of $500, to procure releases from his mother and sisters, to make the deed to him. Thomas gave his note to Ross for $75, which he afterwards paid.
    The defendant then gave in evidence the records of two actions of ejectment against Lloyd, one by Lynch and wife to April Term ■'1855, and the other by Rosanna McCormick to July Term 1856, each for an undivided third of the land; also conveyance by Michael McCormick, May 21st 1859, of his interest as surviving husband of Elizabeth, late Farrell, to Lloyd, and a record of the Orphans’ Court showing the sale of Rosanna’s interest to Lloyd, confirmed January 23d 1860. The defendant then rested.
    For the plaintiff, William Lloyd testified: “ I was here when this article of agreement was made. They had contracted prior to the date of the article of agreement, about the purchase of this tract of land. They had conversations about it, and contracted for it. On the day it was executed, Gilbert Lloyd came out from Hollidaysburg with the article prepared. He brought it into our office prepared. Farrell was present before the execution of the article, and refused to sign it, alleging that it was not a conveyance of the tract, not in accordance with the agreement. Gilbert L. Lloyd said that the understanding was that Lloyd was to take the land — the Farrell title — at his own risk.. They talked the matter over and both agreed to this. It was executed with that distinct understanding, Farrell all the time refusing to sign it. I said it was a distipct understanding of the parties, and not mine, that Lloyd was to take it at his own risk. I had told Farrell not to sell unless he got that agreement. Other parties wanted to buy the land at the same time, and I told Farrell not to sell the land except at the purchaser’s risk, because there was a good deal of litigation about lands on the mountain, and they had been comparatively worthless before that, and that there was no use in him selling the tract of coal-land at that price, that persons were wanting it that would guaranty the title. The Portage and Central Railroads were then making and opening up this country and making land valuable. This was the understanding of the parties at the time they signed the deed. The same understanding was had in regard' to the title at the signing of the deed as at the signing of the article of agreement; that is at the execution of the deed. I was there then and witnessed the deed. This understanding was the understanding of the parties, Gilbert Lloyd and Thomas Farrell. Farrell refused to sign on any other conditions. * * * Thomas said nothing about his sisters having a claim there, or anybody having a claim there.”

      The plaintiff read also the deposition of Peter Collins, in which he' said:—
    “ James Ross and I owned a tract of land warranted in the name of Abraham Bell. Some time in October 1841, Barnabas Farrell came to see me about purchasing land. He stated to me for his son Thomas. I went with him and showed him the land; then we went back to Ebensburg, where he agreed to purchase the said Abraham Bell tract for the sum of $375. James Ross wrote the article. He paid $168 at the making of the agreement. Sometime afterwards Thomas Farrell, only son of the said Barnabas Farrell, now deceased, came and gave his judgment-note for the balance of the purchase-money, and we made the deed to him for the land. He afterwards paid me my half of the judgment-note, and I believe paid the other half also. The deed was made to Thomas Farrell, the son, because his father told me when bargaining for it, that he bought it for the son. This he said on the day of examining the land before the agreement was signed. There was not any one present when he said this. * * * He said he was buying it for his son.” * * *
    The plaintiff offered in evidence the deposition of Robert Lemon, for the purpose of proving the declarations of Lloyd that he had made $30,000 or $40,000 by his purchase of the land. This was objected to by the defendant, rejected by the court, and a bill of exceptions sealed.
    Thomas Farrell, Sr., a brother of Barnabas Farrell, testified: “ Thomas was born in Ireland in 1819. I sent for him and he came straight to where I lived. He worked under me for Hr. Shoenberger and earned over $100, and sent for his father and mother and all the rest of them, and paid their passage over. He was working on there after the old man came, at the same place, and saved money and provided a house and furniture for them, and a way of living. He was saving of his money and laid it out on them. The old man had no means when he came. After the old man’s death, Thomas supported the family.”
    Jonathan Zerbe testified: “ I was book-keeper for Mr. Spang in 1839 at Canoe Furnace. At that time Thomas Farrell was working in the mine-bank for Spang. He worked there from sometime in June 1839, and continued on working there until I left in March 1841. The books show that he worked there sometime after. This is the account I kept there. His father commenced work there sometime in November 1839.” Witness then gave a statement from the books of the account of Thomas up to April 1st 1841, and proceeded: “ There are two drafts charged here 6th of April 1841: ‘ Thomas Farrell to Bills Payable for note of hand payable 1st of October 1841, $156.’ Also another note payable 1st of April 1842, for $156. . The accounts from the time old Mr. Farrell came there were kept together as the account of Thomas Farrell. The time the notes were given, the amount derived from Thomas’s labor would be $340.80. The old man’s I have not ascertained. I presume he drew fully to the amount of his own earnings. I have made an examination with that purpose in view. The old man was brought there by Thomas Farrell, I think from "Woodberry Furnace. I am not positive. I don’t know anything about Thomas bringing the old man from Ireland. Those notes drawn in April closed the account. The old man had his family there.”
    William Yon testified: “ Lived with father on farm of B. Burns in 1841, in Canoe Valley, two miles this side of Williamsburg. Nnew Thomas Farrell and his father at that time. Went there one morning to haul wood for them, and as I drove up to the house the old man Farrell was before the door in the yard and a man named Burns. I walked into the yard and Mr. Farrell said that he was going to the mountain to buy a piece of land. He said that Thomas had got a little money, and said he wanted to put it into land. He said he was going to buy a tract adjoining Burgoon’s lands on the mountain. I told him I knew near about where Burgoon’s lands were; that I had hauled coal from there. While we were talking Thomas came out of the house and handed over some money to his father, and I walked out towards my team, and afterwards Thomas came out and he and I went on and hauled the wood. I was at the funeral of Barnabas Farrell. Think that was in 1841 or 1842. Some four or five months before that I heard this conversation. It was right in front of the house. I went there with my team to haul wood, and into the yard where the old man and Burns were standing before the door. Took notice that he had his good clothes on, and then he told me that he was going up to the mountain to buy a tract of land.”
    The court charged: * * *
    “ The first inquiry is: Is there a proven failure of the title ? And, secondly, if there is, did Mr. Lloyd agree to take upon himself the risk of the title, including such defect, so as still to be liable for the purchase-money ?
    “ I. Is there a proven failure of the title ? It is not necessary here that we should dwell at length upon the evidence involved in this part of the case. [The papers in evidence show that Thomas Farrell held the title for himself, and in trust, as to two-thirds of it, for his sisters, Catharine Lynch and Elizabeth McCormick; and this in view of, and notwithstanding all the evidence offered for the purpose of showing that the land was bought by Barnabas Farrell, their father, in his lifetime, for Thomas;] and we are asked here to instruct you that there is no evidence on the subject upon which the case should be submitted to you. * * *
    “ We have the testimony of Mr. Zerbe as to both of them working at Spang’s Furnace; and the testimony of Mr. Farrell as to the time Thomas and his father came to this country from Ireland, and tbe circumstances under which they came. It would seem from this that Thomas had first gone to Canoe Furnace (Spang’s) sometime in 1839, and that shortly afterwards the old man came; that he lived with the old man, the family living together, and that both worked at the furnace. It seems that their accounts were kept together; first opened in the name of Thomas, because he was first there, and so kept after the old man came. A balance in their favor seemed to have been accumulating, until, about the time they quit, two notes, as the books show, were given to the old man, amounting to about $300. It would seem, probable that these notes were for the surplus earnings of both. The notes were given to the old man. [According to the testimony of old Mr. Farrell, Thomas was born sometime in 1819. He could not fix the time of the year. Consequently, what yas earned by Thomas at the furnace previous to 1841, while he was under age, and living with his father, according to the general rule of law, would belong to his father. It seems that, on the settlement, the notes for the balance due on their account, were given to his father; and the money was due from the furnace on the notes to him, though earned principally, it is probable, by Thomas; and this is the money, it is likely, which the old man referred to at the time of the purchase,.as coming to him at Spang’s furnace. He made the purchase in his own name.
    “This evidence was all before us on the trial of the ejectment, and the former trial of this case; and upon it (without the testimony of Ton) we are constrained to say that it was not sufficient proof of the payment of Thomas’s money in the purchase to establish a resulting trust in his favor, and that it was not such evidence as we should submit to the jury. Does the testimony of William Ton alter this aspect of the case? On looking at it carefully, we say that we do not think it does. Taking it all as true, as the witness states it, it is a mere statement made by Barnabas Farrell that he was going to the mountain to buy land; and that Thomas had money that he wanted to put into land. There was no particular or exact specification of what land, or of any person he was going to deal with. * * * And it seems to us clear that the case is not materially changed by this evidence from what it was before. Taking it all together, as we have it now, and judging of it by the settled rules fixing the amount and character of evidence which must exist in order to warrant a chancellor to infer a resulting trust, we say that the case is not materially altered; and that it stands in this respect where it stood before, when we instructed the jury that the papers in evidence showed that Thomas Farrell held the title, as to two-thirds, in trust for his sisters, Catharine and Elizabeth; and this, notwithstanding all the evidence (including the evidence of William Yon) offered for the purpose of showing that the land was bought by Barnabas Farrell, their father, in his lifetime, for Thomas or with Thomas’s money. Our former ruling was affirmed; and you are instructed now, as the former jury was instructed, that there is no evidence upon this subject upon which the case should be submitted to you.
    “ The conclusion is, that there is a proven failure of the title conveyed to' the extent of the undivided two-thirds with respect to which Thomas is shown by the evidence to have held the title as a trustee for his sisters; and the effect must be to relieve the defendant to that extent, unless he is shown to have taken upon himself the risk.] * * *
    “ Did Mr. Lloyd agree to take upon himself all risk of the title, and does the evidence plainly show it, without any fraud being practised upon him ? ,
    “II. This is the inquiry presented on the former trial, and this is the question upon which the case turns now. It turned before on the testimony of one witness — Wm. M. Lloyd; and it is here now before us on the testimony of the same witness, with no additional evidence, and the only difference, in this respect, being the testimony of that witness then, and his testimony now. Upon the testimony of this witness we submitted the question to the jury on the former trial, whether Gilbert L. Lloyd did take upon himself all risk of the title, and whether that testimony plainly showed that he did; * * * and, for this, the Supreme Court reversed the judgment on the verdict, thus ruling that this court should have rejected the evidence, or, having admitted it, should have withdrawn it from the jury. * * * [In most respects, his testimony is more full and explicit now than it was then, and the difference between the two statements would answer some of the criticisms of the ruling Justice Strong, in the opinion of the Supreme Court; but, upon examining it carefully, we cannot see that it is materially changed, as to the point upon which the cause was reversed. It will be noted that the reversal was because the evidence went to prove another agreement going to contradict and change entirely the agreement of the parties at the time, without any allegation of mistake or fraud; and, secondly, and more especially, because there was a concealment by Thomas Farrell of the relation sustained by him to his sisters, or of the fact that he held the title for himself and in trust for his sisters; that he was really and only the owner of the one-third, while he undertook to sell the whole land. * * * Mr. Lloyd says there was not a word said about that subject; and it was upon this ground mainly, that it was ruled and held by the Supreme Court that the proof of that agreement by Mr. Lloyd should not have been submitted to the jury, and for that reason mainly the judgment was reversed; and the case is the same now, upon that vital point, that it was then. * * * The question would still be, whether this defect in the title was plainly included in this alleged agreement. But we cannot put any other construction upon the ruling of the Supreme Court, which it is our duty to obey and follow, upon this point, than that which settles it. And we, therefore, instruct you upon the whole case, that the defendant is entitled to a general verdict.] * * *
    The verdict was for the defendant.
    The plaintiff having removed the record to the Supreme Court, there assigned for error — the rejection of Lemon’s deposition and the parts of the charge in brackets.

      D. J. Neff and L. W. Hall, for plaintiff in error.
    A deed or agreement may be qualified by or made subject to a parol condition: Miller v. Henderson, 10 S. & R. 290; Bank v. Fordyce, 9 Barr 275; Renshaw v. Gans, 7 Barr 117 ; Lyon v. The Huntingdon Bank, 12 S. & R. 61; Rearich v. Swinehart, 1 Jones 283; Ludwick v. Huntzinger, 5 W. & S. 58; Parke v. Chadwick, 8 Id. 96; Ross’s Appeal, 9 Barr 496; McClure v. McClure, 1 Jones 479.

      S. S. Blair, for defendant in error.
    Proof of payment of purchase-money, from which a trust results, must be such as would satisfy a chancellor: Barnet v. Dougherty, 8 Casey 371; Kline’s Appeal, 3 Wright 463; Nixon’s Appeal, 13 P. F. Smith 282; Capehart v. Capehart, 2 Phila. 204; Bennett v. Fulmer, 13 Wright 156; Hassler v. Bitting, 4 Id. 74.
    Wm. Lloyd stated that nothing was said about the state of the title, and, therefore, there was no evidence that that risk was assumed which could be submitted to the jury. The intention to assume the risk may be fairly inferred when he knew of the defect at the time of the purchase, and made no provision against it in his agreement: Hart v. Porter, 5 S. & R. 204; Cadwalader v. Tryon, 1 Wright 319; Lighty v. Shorb, 3 Penna. R. 447; Steinhauer v. Whitman, 1 S. & R. 438. When the defect or encumbrance is unknown to the purchaser, it is of course impossible that he could have intended or expected to run the risk of it: Rawle on Cov. 533, 563. He referred also to Lloyd v. Lynch, 4 Casey 419; Lloyd v. Farrell, 12 Wright 73.
   The opinion of the court was delivered, May 27th 1872, by

Sharswood, J.

When the question of Thomas Farrell’s title was before this court in Lloyd v. Lynch, 4 Casey 419, there was no evidence whatever that the land had been purchased by Barnabas Farrell with his money, but the case rested simply upon a parol declaration by Barnabas that he was buying for Thomas at the time of the purchase. Mr. Chief Justice Lewis said: “ The mere declaration of a vendee that he intends to buy for another, without evidence of a previous agreement to do so, or of any advance of money for the purpose, raises no trust which can be supported.” On this record, however, there is evidence which if believed is sufficient to supply that deficiency. There is the testimony of Jonathan Zerbe, who was the book-keeper at the Canoe Furnace, from which it may fairly be inferred that Thomas was able to save money out of his earnings, and had, at the very time of the purchase, money just then due and paid him, but that it was highly improbable that Barnabas had anything. But more directly in point is the testimony of William Yon. He said that in 1841 he went to the house where the Farrells lived to haul some wood for them. He found Barnabas before the door in his good clothes as about to go away on some business. He (the old man) “ said he was going to the mountain to buy a piece of land. He said that Thomas had got a little money, and said he wanted to put it into land. He said he was going to buy a tract adjoining Burgoon’s lands on the mountain. I told him I knew near about where Burgoon’s lands were; that I had hauled coal from there. While we were talking, Thomas came out of the house and handed over some money to his father.” Now here is evidence of a previous agreement by Barnabas to buy the land for Thomas, and of an actual advance of money by Thomas to do so — it matters not what the amount was, great or small. Coupled with the declaration by Barnabas to Collins at the time of the purchase that he was buying for Thomas, we think it should have been submitted to the jury to say whether the purchase had not actually been made at the time with money advanced by Thomas for that purpose, which would have created a valid resulting trust in his favor within the exception of the Statute of • Frauds.

We are also of the opinion that the evidence of William M. Lloyd upon this trial, in regard to the agreement by Gilbert L. Lloyd on his purchase from Thomas Farrell to take all the risk of the title, was materially different from what it was on the former trial, when the ease was under review in this court in Lloyd v. Farrell, 12 Wright 73. The witness then said nothing of what took place when the deed was delivered or after the article of agreement was made. His testimony as to what took place at the time of the agreement was indefinite. We are n-ot even informed,” said Mr. Justice Strong, “ whose understanding it was of which the witness spoke. Was it his own or that of the parties? Was it the witness’s construction of the written agreement or of the conversation of Farrell and Lloyd ? If, as is probable, the witness referred to the understanding of the parties, how did he gather it — from their negotiation or their written contract?” It is not disputed that in all these respects the testimony is now clear and definite. On the day it (the article) was executed,” says the witness, “ Gilbert Lloyd came out from Hollidaysburg with the article prepared. He brought it into our office prepared. Farrell was present before the execution of the article and refused to sign it, alleging that it was not a conveyance of the tract, not in accordance with the agreement. Gilbert L. Lloyd said that the understanding of the parties was that Lloyd was to take the land — the Farrell title — at his own risk. They talked the matter over and both agreed to this. It was executed with that distinct understanding.” “ This was the understanding of the parties at the time they signed the deed. The same understanding was had in regard to the title at the signing of the deed as at the signing of the article of agreement : that is at the execution of the deed. I was there then and witnessed the deed. This understanding was the understanding of the parties, Gilbert Lloyd and Thomas Farrell. Farrell refused to sign on any other conditions.” It is certainly true that if Thomas Farrell knew that there was a secret trust in favor of his sisters and fraudulently concealed that fact, he could not avail -himself of this agreement, either at law or in equity. It would be void so far as their title was concerned. But that clearly was a question for the jury, and would depend very much upon the fact whether the land was bought with his, Thomas’s, money. If he knew that to be so, he was not bound to disclose the fact that he had given a bond of indemnity against his sister’s title to his vendors, Collins & Ross. If Farrell knew he had paid for the land though the original agreement was in his father’s name, good faith did not require him to state to his vendee facts connected with it which he deemed of no importance. If, however, the fact was not so, and of course he must have known it — “ that with such knowledge concealed in his own bosom,” as Mr. Justice Strong well remarked in Lloyd v. Farrell, “ he could have bound his ignorant vendee by an agreement to assume all the risk of a title, would be grossly inequitable. It is idle to say that any court of equity would enforce such a contract.” It is evident, then, that whether there was a fraudulent concealment by Farrell of his sister’s claim or title, was a question of fact which ought to have been submitted to the jury.

We see no error in the rejection of the deposition of Robert Lemon. Declarations by Gilbert Lloyd as to how much he had made by the speculation, were entirely irrelevant, and could only have tended to mislead the jury.

Judgment reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Beetem’s Administrators versus Burkholder.
    1. Where a party has a right to rescind a contract and elects to do so, he must give notice to the vendor and offer to return the thing sold before suit to recover back his money, unless the thing which was the consideration of the contract be entirely worthless.
    2. Burkholder bought stock from Beetem, and afterwards brought suit in rescission of the contract on the ground of fraud. Held, that whether the stock was worthless at the commencement of the suit, was a question for the jury.
    3. The vendor should have the option to join in the rescission and take back the property at the earliest period: he must have notice, which he has upon tendering the thing sold, and the price demanded.

      4. Beetem, when he sold the stock was cashier of a bank, forbidden by the Act of 16th April 1850, to speculate in stocks. Burkholder sought to rescind on the ground that the contract was illegal. The onus was on Beetem, who alleged that Burkholder was pariiceps criminis, to show that he knew that Beetem was violating the law by speculating in stocks.
    5. The maxim Lex neminem cogit ad vana sen inutilia applied.
    6. Babcock v. Case, 11 P. F. Smith 427, distinguished ; Pearsoll v. Chapin 8 Wright 12; Ritchie v. Summers, 3 Yeates 531 recognised.
    May 25th 1871.
    Before Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 86, to May Term 1871.
    This was an action of assumpsit, brought August 12th 1865, by Henry L. Burkholder against J. W. Patton and J. A. Stuart, administrators, &c., of William M. Beetem, deceased. The declaration was in the common counts.
    The cause was tried, November 9th 1869, and a verdict rendered for the defendants. The record was removed to the Supreme Court, where the judgment was reversed, and a venire facias de novo awarded. The facts are found at large in the report of the case (15 P. F. Smith 496).
    The cause was again tried, January 11th 1871, before Graham, P. J.
    Beetem, the decedent, who died July 26th 1865, was the cashier of the Carlisle Deposit Bank at the time of his death and for a considerable time previously to August 1864, when he became the owner of 1000 shares of stock in the Glenville Coal Company, for which he paid $40 a share. The evidence was that in January 1865 he sold to the plaintiff 60 shares of this stock at $50 per share, and that the plaintiff paid him the purchase-money, $3000, on the 4th of February. The stock having depreciated, the plaintiff brought this suit in rescission of the contract, alleging that Beetem had practised fraud upon him in selling him stock which Beetem knew was of little value, and also because the contract was illegal, as being in violation of the Act of April 16th 1870, § 10, Pamph. L. 481, Purd. 90, pi. 25, which forbids the cashier of a bank from engaging in the purchase and sale of stocks under a penalty of $500. He further claimed that he had the right to rescind, on the ground that Beetem was his agent to purchase stock, and had sold his own stock to plaintiff above its value, the plaintiff not knowing that it was his.
    The evidence was that shortly before the sale to the plaintiff, Beetem transferred all his stock to a firm of brokers in Boston ; but that they had no interest in the stock, and that the transfer of the 60 shares was made by these brokers to the plaintiff.
    There was evidence that shortly before this suit was brought, the stock was worth $20 per share if then forced on the market, but that in the opinion of the broker consulted in Philadelphia, it was not then advisable to sell, as he thought for reasons which he gave, the price would advance.
    There was evidence on both sides to sustain the positions of the parties respectively.
    The plaintiff’s 2d and 3d points with their answers were:—
    2. “ If without even intending fraud, Beetem acted as agent in making an investment of $3000 for Burkholder, and in the capacity of agent sold to Burkholder his own Glenville stock, Burk-holder not knowing that he, Beetem, was selling him, Burkholder, his own stock, but merely investing the money as his agent, Burk-holder, may, on discovering the stock to be Beetem’s, refuse to be bound by such a purchase and recover back the $3000 and interest, from the 4th of February 1865, and when the stock was of little or no value, and this without a previous transfer of the stock to Beetem or his administrators.”
    Answer : “ Under the facts stated in this point Burkholder may recover back the money paid to Beetem without tendering a re-transfer of the stock, if it was of no value. If it was of value then an offer to retransfer would be necessary, but this would not, under the circumstance of this case, be required before suit brought. A retransfer was tendered at the former trial, and has been re-tendered at the present trial, so that the want of retender of the stock will not prevent a recovery in this case, as we have stated in our general charge.”
    3. “ Beetem, while cashier of the ‘ Carlisle Deposit Bank,’ had no right to deal and speculate in stocks, to buy and sell them; if he did so the party buying from him, could, upon discovering that the stock belonged to Beetem, and was worthless, repudiate the transaction, and recover back the money paid by him. In order to make the contract binding upon the purchaser of stocks from Beetem it would require the defendants to show that the purchaser knew Beetem was so engaged in buying and selling stocks, and that the stock purchased was Beetem’s. There is no evidence in this case to show that Burkholder knew that Beetem was violating the law, and was engaged in buying and selling stocks and that the sale of the Grlenville stock to him was one of his transactions in this unlawful business, therefore Burkholder has a right to repudiate the sale to him and recover the $3000 paid Beetem, with interest from February 4th 1865, and this without a previous retransfer of the stock when of little or no value.”
    Answer: “ The first part of this point is answered in the affirmative. There is no evidence on the face of this transaction, or other evidence, that we recollect, that Burkholder knew he was purchasing from Beetem, and if he did not know, he would not be a party to the illegal transaction, or affected by it, and would have a right to rescind the contract, and recover the money paid, and the fact that a retransfer was not tendered before suit brought will not prevent a recovery.”
    The defendants’ 1st, 2d and 3d points with their answers were:—
    1. “ The plaintiff, having neglected to rescind the contract for the sale and purchase of Grlenville Coal Company stock by re-transferring or tendering the transfer of the same to defendants’ intestate in his lifetime, or to the defendants prior to the bringing of this suit, or at a time when it was in the plaintiff’s power to place the defendants in the position occupied at the time of the sale, he cannot recover in this action, even though the contract may have been illegal, or the purchase induced by fraudulent representations.”
    Answer: “Under the circumstances of this case we decline answering this point in the affirmative, for the reasons stated in our general charge.”

      2. “ If the jury believe that William M. Beetem, while cashier of the Carlisle Deposit Bank, engaged in the purchase and sale of stocks contrary to the law, any contract for the sale of stocks made by him would be illegal; but where such a contract has been executed by a delivery of the stock, and payment of the purchase-money, as in this case, Mr. Burkholder, the plaintiff, in seeking to recover back the purchase-money paid by him for the Grlenville Coal Company stock, thereby bases his cause of action upon an illegal contract to which he was a party. Until he has, therefore, affirmatively shown to the satisfaction of the jury that Mr. Beetem concealed from him the ownership of the stock, he is without standing in court, and every intendment and presumption of fact and law must be taken against him.”
    Answer: “ If Mr. Burkholder knew Beetem was dealing in stocks at the time he purchased, then he cannot recover. But he is not required to show affirmatively that Beetem concealed from him (Burkholder) the ownership of the stock. This would be presuming a man guilty until he proved his innocence.”
    3. “ The Act of 1850 relative to cashiers, being a public general statute, of which all are bound to take notice, the burden is therefore cast upon Mr. Burkholder, the plaintiff in this case, of showing, that at the time of his purchase of the Glenville stock, he was ignorant that it belonged to Mr. Beetem, and Mr. Beetem concealed his ownership of the stock from him, and if the jury believe that there is no evidence of what really tranépired at the time of the sale of said stock, the presumption is one not to be got over or disregarded by them that Burkholder knew whose stock he was buying, and their verdict must therefore be for the defendants.” Answer: “We cannot answer this as requested.”
    The defendants, in their 6th point, asked the court to charge that they were entitled to the verdict; this was refused. '
    In his general charge, Judge Graham said :—
    * * * “ That Mr. Beetem was engaged in buying and selling stock, and that to a very considerable amount, appears to be very clearly proved by Mr. Beetem’s correspondence with his bankers and brokers, and we do not understand that this is controverted. We have no evidence of what occurred between the parties at the time of purchase and sale. No one appears to have been present, and this question is submitted to you whether Burkholder at the time he purchased knew the stock was Beetem’s, or considered that he was purchasing from Beetem, and whether he knew that Beetem was dealing in stocks at the time.” * * *
    “ The defendants insist that the plaintiff cannot recover in this case because a re-assignment was not tendered before suit brought. The plaintiff tendered a re-assignment at the former trial, and also at the present trial, and under the circumstances of this case, I do not consider the fact of a re-assignment before suit brought, essential to enable the plaintiff to recover.” * * *
    The verdict was for the plaintiff for $4069.50.
    The defendants removed the case to the Supreme Court.
    They made there the following assignments of error: — ■
    1, 2. The answers to the plaintiff’s 2d and 3d points.
    3. The answer to the defendants’ 1st point.
    4, 5. The answers to the defendants’ 2d and 3d points.
    6. The answer to the defendants’ 6th point.
    7, 8. The answers to the parts of the charge above quoted.

      Henderson Hays, for plaintiff in error.
    A retransfer, or a tender of a retransfer, of the stock sold before suit, was necessary: Pearsoll v. Chapin, 8 Wright 12; Duncan v. Lawrence, 12 Harris 154; Turnpike Company v. The Commonwealth, 2 Watts 433; Roth v. Laguerenne, 6 Casey 145; Flynn v. Allen, 7 P. F. Smith 482; Ritchie v. Summers, 3 Yeates 531; s. c. 6 Casey 147 in note; Fielder v. Starkin, 1 H. Bl. 19.

      W. H. Miller and W. M. Penrose, for defendant in error.
    As to the burden of proof upon the Act of April 15th 1850, when an act may, according to the circumstances, be lawful, or unlawful, it will not be presumed that the contract was to do the unlawful act; the contrary is the proper inference: Lewis v. Davison, 4 M. & W. 654; 1 Greenleaf’s Ev. § 80; Maul v. Rider, 9 P. F. Smith 171; Johnson v. The City, 10 Id. 445; Best on Presumptions *64. As to the retransfer of the stock, justice could be done either by a conditional verdict, or by equitable power of the court to restrain execution: Babcock v. Smith, 11 P. F. Smith 427.
    The law implies a promise to refund money had and received under an illegal contract where the plaintiff, seeking to recover such money, does not stand in pari delicto with the defendant: Addison on Contracts *67; Id. *150; 2 Starkie on Ev. *117; Domat, Les Lois Civ., tit. 18, § 14, pl. 5; Pearsoll v. Chapin, 8 Wright 12.
   The opinion of the court was delivered, October 9th 1871, by

Sharswood, J.

Wherever one of the parties to a contract has the right to rescind it, and elects to do so, before commencing his action to recover back the money which he has paid, he must give notice to the vendor and offer to return the thing sold. This • was settled in the High Court of Errors and Appeals in 1804, in Summers v. Ritchie, 6 Casey 147, note; s. c. 3 Yeates 531, and has been uniformly adhered to; Turnpike Co. v. The Commonwealth, 2 Watts 433; Roth v. Crissy, 6 Casey 145; Pearsoll v. Chapin, 8 Wright 12. It is easily distinguishable from those eases where an action is brought to recover damages for deceit or for breach of the contract which are in affirmance of it; Borrekins v. Bevan, 3 Rawle 44; Flynn v. Allen, 7 P. F. Smith 482. “That aman should retain the .property which he purchased,” say the court in Summers v. Ritchie, “ and at the same time recover from the seller the whole amount of the purchase-money— that he should be permitted both to affirm and annul the sale — is contrary to reason, to justice and to the authorities which have been produced on the argument.” It was recognised, however, as an exception to the rule in Babcock v. Case, 11 P. F. Smith 427, that if the thing, the consideration of which is sought to be recovered back, be entirely worthless, there is no duty to return it. The soundness of that determination cannot be questioned: Lex neminem cogit ad vana seu inutilia. This may sometimes be —as it was in that case — a mere question of law. What had been sold the law adjudged to be an utterly worthless tax title, under a sale of seated land as unseated. It would have been a waste of time, labour and paper to have reconveyed it, and a mere idle ceremony to have tendered a deed. The same law would hold when forged bank notes or other counterfeit securities are the subject-matter of the contract. No honest use could be made of them by the vendor, and they need not therefore be returned or tendered. Ordinarily, however, it is a question of fact for the jury, as where there have been sold, under circumstances entitling the vendor to rescind, shares of stock of a company entirely insolvent, or which has become insolvent, and the shares valueless in point of fact before suit. If the shares of the Glenville Coal Company, which were the subject of the sale in this case, when the contract was rescinded and the suit brought, were of no value, and the jury had so found, the principle of Babcock v. Case would have applied. It was not intended in that case to overrule former decisions, but to recognise that where their reason did not apply, the rule itself should cease. It was not held or intimated in that opinion, that a tender or offer to return the thing on the trial was in all cases sufficient. “We do not impinge,” said Chief Justice Thompson, “ on the case of Pearsoll v. Chapin, 8 Wright 12. That case was well decided on its facts.” In Pearsoll v. Chapin it was held that where a sale of land has been induced by the false and fraudulent representations of the vendor, the vendee must first tender a reconveyance before he can recover back the price paid. “ He (the plaintiff), ” said Chief Justice Lowrie, “ is not suing for a rescission or to obtain one, but for the results or consequences of a rescission, on the ground that he has already exercised his right to rescind given him by the law.” The technical reason undoubtedly is, that the plaintiff’s title to recover must be perfect when his suit is commenced. This is a very simple and intelligible rule, applicable in all cases, which it would be dangerous to innovate upon: Thomas v. Shoemaker, 6 W. & S. 179; Duncan v. Lawrence, 12 Harris 154. But a substantial reason for requiring a return or tender before suit, where the party assumes the right to rescind a sale, is that he may not play fast and loose down to the last moment. The defendant should have the option to join in the rescission, and take back the property at the earliest period. He must have notice, which is given to him when the thing is offered back and the price paid demanded. We think, therefore, that there was error in the answers of the learned judge below to the plaintiff’s second and third points, and to the defendant’s first point, and in the general charge as specified in the first, second, third and eighth assignments of error. We discover no other error. The onus of proving that Burkholder was a partioeps criminis, and made the contract, knowing that Beetem the vendor was violating the law, was clearly upon the defendants. The primá; facie presumption is always in favor of innocence, so much so, as sometimes to require the opposite party to prove a negative: 1 Greenl. on Ev., § 80. If, as complained of in the seventh assignment, the learned judge submitted a question to the jury, of which there was no evidence, it did the plaintiffs in error no injury, for the burthen of proving that fact was upon them.

Judgment reversed, and venire facias de novo awarded.


author: Read, J.

text:
    Spangler versus Sheffer et al.

    1. Foust’s goods being levied on under a fi. fa., Spangler bought the judgment and execution, Foust giving his note payable on the return day of the execution, with Sheffer as his surety, as collateral security for the judgment. Held, that this did not raise the presumption of an engagement for a stay of execution, till the maturity of the note.

      2. By Spangler’s conduct the levy was lost. Held, that he could not recover from Sheffer on the note.
    May 25th 1871.
    Before Read, Aunew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of York county: No. 87, to May Term 1871.
    This was an action of assumpsit brought May 4th 1869, by Jacob Spangler against Joshua E. Foust and Emanuel Sheffer on this promissory note:—
    “ $800. Glen Rock, January 26th, 1869.
    Three months after date we promise to pay to the order of Jacob Spangler, Esquire (cooper), eight hundred dollars, value received.
    Joshua E. Foust,
    E. Sheerer.”
    The note was given under these circumstances. On the 15th of January 1869, judgments amounting in all to about $2400 were recovered by plaintiffs named Bender against Foust; three writs of fi. fa. were on the same day issued on these judgments, and on the 16th personal property of the value of $8000 belonging to Foust levied on. On the same day judgment was entered in favor of Hyatt & Clark against Foust, for $890, an execution issued on the 18th to April term 1869, and on that day a levy made on Foust’s personal property subject to the Bender levies. Foust desired Spangler to buy this judgment; he consented to do so if he was made safe; and the note in suit, which would fall due on the return day of the Hyatt & Clark’s fi. fa, — Sheffer being the surety for Foust, — was made and delivered to Spangler as collateral security for the Hyatt & Clark judgment; and on the 27th of January that judgment and the execution were marked to the use of Spangler. On the 28th of January the Bender executions were stayed. To the Hyatt & Clark writ the sheriff returned :—
    “January 30th 1869. Jacob Spangler, * * * informed the sheriff that he had fixed his matters now, and considered himself safe, and the sheriff should do nothing in it; * * * and nothing further was done on this writ.”
    In March a considerable quantity of Eoust’s property, which had been levied on, was delivered to other creditors, without execution in payment of their claims. In the same month an execution was issued on a judgment of Jacob Grove against Foust, and the remainder of the personal property, which had been under levy on the Hyatt & Clark execution sold, and the proceeds were paid into court and afterwards awarded to Grove’s execution.
    There was some evidence tending to show that the understanding between Sheffer and Spangler, at the execution of the note, was, that the execution upon the Hyatt & Clark judgment should not be pressed, but that it should be stayed until the note fell due. There was evidence also for the purpose of contradicting the sheriff’s return that Spangler had directed a stay on the Hyatt & Clark execution.
    The defendant gave in evidence also an ex parte affidavit made by Spangler in relation to the Hyatt & Clark execution, before this suit, and filed with that execution, in which he denied the truth of the sheriff’s return, but .made no averment of an understanding with Sheffer for a stay.
    There was a large amount of evidence bearing upon the ques- ’ tions raised in the case; the foregoing will sufficiently present the questions.
    The points of the parties with their answers are as follows:— Plaintiff’s: 1. “ If the note in suit was given by the defendants to the plaintiff and accepted by him as collateral security for the Hyatt & Clark judgment, and an execution and levy were pending thereon at the time, the presumption is that it was an engagement for a stay of execution till the time of payment of the note.” Answer: “We cannot answer this point in the affirmative. It may be a circumstance amongst others tending to prove that there was an engagement for a stay of execution, but it does not constitute an absolute presumption of that fact. That there was such an engagement must be proved by evidence positive or circumstantial, but in either case it must be strong enough to enable the jury to say that such an engagement was made. Mere expectation and belief will not be sufficient.”
    2. “ If the defendant, Sheffer, became surety for the defendant, Foust, in the note in suit, and said note was taken by the plaintiff as collateral security on the Hyatt & Clark judgment, Sheffer was a mere volunteer, and stands in the place of a surety not entitled to indemnity, and his liability is absolute, notwithstanding the security arising by means of the levy made on said judgment may have been lost.”
    Answer: “We cannot answer this point in the affirmative.”

      8. “ If there was a levy made on the execution issued on the Hyatt & Clark judgment, of sufficient property of the defendant to satisfy the judgment, and the plaintiff as holder of said judgment had thus the means of satisfaction in his hands, and the defendant, Sheffer, interposed 'in behalf of the defendant, Foust, and gave the note in suit as collateral security, any release of the property levied was occasioned by the defendant, _Sheffer’s, own act, which was to the detriment and not to the benefit of the plaintiff, and Sheffer cannot now set up the plaintiff’s failure to collect the money on Hyatt & Clark’s execution against the right of the plaintiff to recover in this suit.”
    Answer : “ We cannot answer this point in the affirmative, unless there was an agreement on the part of Sheffer that the giving of the note was to have the effect of a stay of execution, or, in other words, that it was given as the consideration of a stay of execution.”
    4. “ It was the duty of the defendant, Sheffer, under the circumstances of this case, if he desired to be relieved from his collateral 'undertaking, to notify Spangler as holder of the Hyatt & Clark judgment, not to relinquish the lien of the levy on the defendant’s property, but to push the same and collect the money.”
    Answer: “We cannot answer this point in the affirmative.”
    Defendant’s: 1. “ If the jury believe that Emanuel Sheffer is ' the surety in the note in suit, and that it was given as collateral or additional security for the judgment and execution in favor of Hyatt & Clark against Foust to Jacob Spangler, at the time of his taking an assignment thereof, and that said execution was levied upon the personal property of the defendant therein, sufficient to satisfy the same, such levy is a satisfaction of the said judgment and execution as respects Emanuel Sheffer, and the plaintiff cannot recover in this suit.”
    4. “ The return of the sheriff upon the execution is conclusive against Spangler, that the writ was stayed, and this cannot be controverted.”
    Both these points were affirmed.
    In the general charge, the court (Fisher, P. J.), said :
    * * * “A fourth question is, did Sheffer agree, that in consideration of Spangler’s staying the execution, the note in. suit should be given, or that the consideration of the note was that the execution should be stayed. In deciding this case, the jury will take into consideration all the evidence, and all the facts and circumstances of the case. I say the facts, for the jury cannot presume an agreement or contract to stay the execution from the mere expression by Sheffer of a desire, or a hope, or an expectation that Spangler would stay the execution, if he gave the note as a surety and as collateral security.”
    The jury having been out some time, came into court and said they had not agreed upon a verdict. The court said to the jury that “ the court thought that this case was one. about which they ought to have no difficulty. It was the duty of Mr. Spangler to satisfy the jury that the contract or agreement to stay the execution was made. Sheffer and Foust swore positively that no such agreement was made, and the affidavit of Spangler does not state that there was such an agreement. There are circumstances in the case that may tend to another conclusion which we do not think proper to take from the jury.”
    The verdict was for the defendants.
    The plaintiff took out a writ of error and assigned for error the answers to the points, and the foregoing portions of the charge.

      H. L. Fisher and J. Gibson, for plaintiff in error.
    The act of Sheffer, in giving the note contemporaneously with the assignment of the judgment to the plaintiff, amounted not only to a presumption, but to a suspension of the remedy against the debtor: Okie v. Spencer, 2 Wharton 253; Shaw v. The First Associate Reformed Presbyterian Church, 3 Wright 226; Pott v. Nathans, 1 W. & S. 155; Schnitzel’s Appeal, 13 Wright 23; Bank of Penna. v. Potius, 10 Watts 148. Sheffer’s collateral undertaking was that of a volunteer, and is similar to bail for stay of execution: Armstrong’s Appeal, 5 W. & S. 352; Hoover v. Epler, 2 P. F. Smith 522; Wallace’s Estate, 9 Id. 406; Lewis v. The Bank of Penn Township, 3 Wharton 531; Dyott’s Estate, 2 W. & S. 463; Lishy v. O’Brien, 4 Watts 141; Miller v. Howry, 3 Penna. R. 374; Lord v. The Ocean Bank, 8 Harris 384. Sheffer ought to have notified Mr. Spangler, not to relinquish the lien of the levy, but to push the same and collect the money: Commonwealth v. Miller, 8 S. & R. 452; Cathcart’s Appeal, 1 Harris 416; Schuylkill Bank v. Macalester, 6 W. & S. 147; Neff’s Appeal, 9 W. & S. 36. A sheriff’s return is only primff facie evidence of facts incidentally in question in a contest with a third party: Lowry v. Coulter, 9 Barr 349; Gyfford v. Woodgafe, 11 East 148 ; Paxson’s Appeal, 13 Wright 195; Watson on Sheriffs 72; Sewell, Id. 387; Keyser’s Appeal, 1 Harris 409.

      V. K. Keasey and J. L. Mayer, for defendants in error.
    Where there is a levy on personal property of the principal, it is a satisfaction pro tanto, as regards the surety, of which nothing can deprive him, except his assent to the arrangement by which the property is released: Cathcart’s Appeal, 1 Harris 416-420. They also cited as to the plaintiff’s first point: Weakly v. Bell & Sterling, 9 Watts 273; Bank of Penna. v. Potius, 10 Watts 148; Shaw v. The First Associate Reformed Presbyterian Church, 3 Wright 226.
   Tbe opinion of tbe court was delivered, October 9th 1871, by

Read, J.

Bender and Bender & Co., on judgments held by them against Joseph E. Foust, issued three executions on the 15th January 1869, amounting to about $2400, which were levied the next day, on the personal property of the defendant, valued at about $8000. On the 16th January, a judgment was entered in favor of Hyatt & Clark for $890, and on the 18th a fi. fa. was issued and levied on the same property, subject to the three prior executions, 9, 10 and 11, April Term 1869, being the Bender executions. On the 27th January, Hyatt & Clark’s judgment and execution were marked for the use of Jacob Spangler. On the 28th January Benders’ writs of fi. fa. Nos. 9,10 and 11, were stayed, and costs paid and satisfaction subsequently entered on the judgments. On the 30th January, Jacob Spangler released the still-house property from the lien of the judgment assigned to him.

Jacob Spangler, therefore, had under his execution property of Foust sufficient to pay his debt twice over. Spangler had conceived the idea of purchasing the judgment and execution of Hyatt & Clark, and paying them in barrels, but was anxious to be made safe, as the personal property might not reach, and Foust then gave his note to Spangler, with É. Sheffer as surety, for the sum of $800, payable at three months, which was the return-day of the writs of execution, as collateral security. The note is dated 26th January, and the assignment by Hyatt & Clark was made the next day.

By Spangler’s conduct, the levy under Hyatt & Clark’s execution was lost, and he then brought this suit on Foust and Sheffer’s note for $800, alleging that it was an engagement for a stay of execution till the time of the payment of the note. The question whether there was any such arrangement for a stay of execution was distinctly submitted to the jury, by the court helow, and was found against the plaintiff, who is concluded by it, unless there was some mistake in law made by the learned judge.

The 1st point presented to the court by the plaintiff’s counsel really covers his whole case.

“ 1st. If the note in suit was given by the defendants to the plaintiff, and accepted by him as collateral security for the Hyatt & Clark judgment, a,nd an execution and levy were pending thereon at the time, the presumption is that it was an engagement for a stay of execution till the time of payment of the note.”

The court said, “We cannot answer this point in the affirmative. It may be a circumstance amongst others tending to prove that there was an engagement for stay of execution, bu.t it does not constitute an absolute presumption of that fact. That there was such an engagement must be proved by evidence positive or circumstantial, but in either case it must be strong enough to enable the jury to say that such an e' expectation and belief will not be s no error in this, nor do we perceiv/ the court. cent was made — mere t.” There is clearly m the other rulings of

Judgment affirmed.


author: Agnew, J.

text:
    The Commonwealth, to the use of Lancaster City, versus Frailey et al.

    1. The Act of March 21st 1772, requiring thirty days’ notice before bringing suits against justices, does not apply to suits on their official bonds under the 6th sect, of Act of June 21'st 1839.
    2. An alderman of Lancaster collected water rents under an ordinance of the city. Held, that thirty days’ notice before bringing suit on his bond for not paying over, was not'necessary.
    3. When a demand is made and the money not paid over, the bond is broken.
    4. Proceedings against justices under the Acts 6f 1772, 1839, and March 28th 1820, compared.
    5. Jones v. Hughes, 5 S. & R. 301; Wise v. Wills, 2 Rawle 208, remarked on.
    May 26th 1871.
    Before Read, Agnew, and Sharswood, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 93, to May Term 1871.
    This was an action of debt by The Commonwealth to the use of the Mayor, &c., of the City of Lancaster, against Charles R. Frailey, John P. Weise and William Carpenter, on Frailey’s official bond as an alderman of the city of Lancaster, the other defendants being his sureties.
    The writ issued March 15th 1869.
    The bond was dated February 24th 1865, in the sum of $1000, conditioned in accordance with the 6th section of the Act of June 21st 1839 (Pamph. L. 374, Purd. 591, pi. 15), that Frailey should “ faithfully apply all moneys that came into his hands as an officer.”
    By an ordinance of the city of Lancaster, the mayor of the city is required yearly to place a list of the unpaid water-rents in the hands of an alderman for collection. The mayor, in accordance with this ordinance, placed in Frailey’s hands for collection lists of the unpaid water-rents for the years 1865,1866,1867 and 1868. Of the rents collected by Frailey he failed to pay over the amount of $1303.20.
    This was the breach of the bond on which the plaintiff declared. The defendants pleaded payment with leave, &c. They also filed special pleas, that thirty days’ notice of the intention to bring the suit had not been given, and that suit had not been' brought within six months^of the breach, as required by the Act of March 21st 1772, §§ 1-7 (1 Sm. L. 864, Purd. 607, pi. 115), viz.
    “ Whereas, justices of the peace may be discouraged in the execution of their office by vexatious actions brought against them, for or by reason of small and involuntary errors in their proceedings; and whereas, it is necessary that they should be rendered safe in the execution of the said office and trust; and whereas, it is also necessary that the subject should be protected from all wilful and oppressive abuse of the several laws committed to the care and execution of the said justices of the peace: Be it enacted, That no writ shall be sued out against, nor any copy of any process at the suit of a subject, shall be served on any justice of the peace for anything done by him in the execution of his office, until notice in writing of such intended writ or process shall have been delivered to him, or left at the usual place of his abode by the party, or his attorney or agent, who intends to sue or cause the same to be sued out or served at least thirty days before the suing out or serving the same; in which notice shall be clearly and explicitly contained the cause of action, which the said party hath or claimeth to have against such justice of the peace. * * *

      “ Provided, That no action shall be brought against any justice of the peace for anything done in the execution of his office, * * * unless commenced within six months after the act committed.”
    The cause was tried November 29th 1870, before Hayes, J.
    The plaintiff having closed with the foregoing facts in evidence, the defendants moved the court to direct a nonsuit, which was ordered, and a rule granted to show cause why the nonsuit should not be stricken off.
    After argument, the rule was, on the 14th of January 1871, discharged, Judge Hayes saying:—
    “ At the trial it appeared to us that Wise et al. v. Wills, 2 Rawle 208, governed this case, and wp felt ourselves obliged by the authority to order the nonsuit. Though the Supreme Court was divided, the opinion of the court was very decisive, and it has stood unquestioned for forty years. We still think it rules this case.”
    Entering the judgment of nonsuit was assigned for error on the removal of the record to the Supreme Court by the plaintiff.

      J. W. Johnson and G. M. Kline, for plaintiff in error,
    cited the Acts of 1772 and 1839, supra; Prior v. Craig, 5 S. & R. 44; Commonwealth v. Kendig, 2 Barr 448; Hale v. Commonwealth, 8 Id. 415; Ditmars v. Commonwealth, 11 Wright 335.

      S. H. Reynolds, O. J. Dichey and J. B. Amwahe, for defendants in error,
    cited the same acts; Mitchell v. Cowgill, 4 Binney 20; Lowrie v. Verner, 3 Watts 319; Jewel v. Howe, 3 Watts 148; Wise v. Wills, Prior v. Craig, supra.

   The opinion of the court was delivered, October 9th 1871, by

Agnew, J.

This case was decided in the court below on the authority of Wise v. Wills, 2 Rawle 208. The cases are dissimilar. In Wise v. Wills there was a settlement between a justice of the peace and a constable for sundry executions put into the hands of the constable’s deputy, upon, which default was alleged to have been made. The justice charged the constable with the sum of $300, alleged to be due upon the executions, and received the money. The suit was brought by the representatives of the constable against the justice, alleging that he had charged and received the money in fraud or mistake. The wrongful receipt of the money under color of his office was, therefore, the ground of the action; and notice was held to be necessary under the Act of 21st March 1772, in order to enable the justice to tender amends. But in the present case no wrong or injury is alleged, but simply the non-payment of money which the alderman had legally received and failed to pay over. The unpaid water-rents of ‘the city of Lancaster were placed in the hands of the aider-man to collect, and he had received them from the debtors of the city. This action was brought on the official bond given by the alderman with sureties, under the Act of 21st June 1839, for his failure to pay over the money thus received. It is obvious that this suit is not one brought, in the language of the preamble of the Act of 1772, for any “ small and involuntary error in his proceeding,” or tending to “ discourage him in the execution of his office; ” or, in the language of the enactment itself, “ for anything done by him in the execution of his office.” Had the alderman in this case been sued by one of the debtors of the city to recover a water-rent he had received in his official capacity, on the ground that it was paid through his fraud or mistake, the case would resemble Wise v. Wills, and a thirty-day notice would have been necessary according to that decision. There the alderman would have been entitled to thirty days, to enable him to examine the allegation and to tender amends for his error or mistake. But here the official act was legal and complete in the receipt of the money from the debtor of the city, and nothing remained but to pay it over to the city. No complaint is made of any error or wrong done in' the execution of his office. If the alderman allege he did not receive the money, that alone is a defence to the action; no amends can be tendered where no money has been received, and no notice is therefore necessary. But if he have the money, his non-payment is voluntary. It is because he has the money and has not paid it over, the action lies on the bond. Here is no error or mistake, no unintentional injury which he should have an opportunity to atone for without suit, by making amends. The very point of this distinction was taken by Huston, J., in delivering the opinion of the court in Wise v. Wills: “ The statute (he says) supposes some wrong to have been done, some excess of authority, or want of authority or jurisdiction; for where everything has been done according to law, the act is useless.” The principle had before been stated by Gibson, J., in Jones v. Hughes, 5 S. & R. 301: “ It may be laid down (he says) as a general rule, that wherever the officer has acted honestly although mistakenly; when he supposed he was in the execution.of his duty, although he had no authority to act, he is entitled to the protection of the Act of Assembly. But the cause of action must be a wrong suffered, from an act done by the justice in the execution of his office.” Here there is no allegation that the alderman has done an honest but mistaken act of injury, or a wrong in the execution of his office. He has received the money legally, and is not sued to refund it as a sum paid in error. Perhaps a demand might he necessary to put him in default, because of his official position which entitles him to require those having business with him to come to his office to attend to it; but not to add to that a notice of thirty days to tender amends. He is in default when a demand is made and the money not paid over — his bond is broken.

The case does not rest on the foregoing considerations alone, but is affected by the laws passed since 1772 on the subject. The Act of 21st March 1772 is a transcript of a British statute (see Wise v. Wills), which was passed in relation to magistrates having no civil jurisdiction, and not receiving officers, as justices and aldermen are under our Acts of Assembly. The English statute was therefore intended only for wrongs committed in the execution of the office. But justices and aldermen being made receiving officers in civil cases, our legislature provided a special remedy for the non-payment of moneys received by them in their official capacity: see Act of 28th March 1820, § 8, 7 Smith’s Laws 310. The proceeding is by petition to the Court of Common Pleas, citation and hearing, with a jury trial if demanded to try disputed facts. Had it not been for the passage subsequently of the Act of 1839 relating to elections of justices and aldermen, this remedy alone could be pursued. It was held that no action would lie for the receipt of money by our justices before another justice, or (by reason of the Act of 1806) in court in a common-law form: Montgomerys. Poorman, 6 Watts 384. After the amended Constitution of 1838 had made the office elective, the legislature deemed it proper to provide for bonds to be given by justices and aldermen. The Act of 21st June 1839, § 6, Pamph. L. 378, provided that before they shall enter on the duties of their office, they shall give a bond with sureties conditioned inter alia “for the faithful application of all moneys that come into his hands as an officer.” It further provides that the proceedings on such bonds shall be under and pursuant to the provisions of the Act of 16th June 1836, in relation to official bonds, and limits the recovery against the sureties to the period of eight years from the date of the bond. Here, then, is a special security and a special remedy provided by law for the collection of moneys received in the official capacity of the justice or alderman. It is clear that the notice and tender of amends contemplated by the Act of 1772 are inapplicable to the case of moneys received and not paid over on demand.

Judgment reversed, and a venire facias de novo awarded.


author: Williams, J.

text:
    Heckert’s Appeal.
    On the settlement of Lane’s account as assignee for the benefit of creditors of Heckert, there was a large balance decreed to be payable to Heckert, which was deposited in a bank then in good credit, to the account of Lane, assignee of Heckert, and Heckert notified to come and receive it. Heckert did not, but made an arrangement with the bank, not communicated to the assignee, that he would not demand the money from the assignee, but that it should remain without change of the account and at interest: he received interest on it for some time, when the bank failed. Held, that the assignee was not liable for the loss.
    May 26th 1871.
    Before Read, Asnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Lan-' easier county: In Equity-: No. 97, to May Term 1871, by George Heckert, in the matter of his estate assigned for the benefit of creditors to James B. Lane.
    The assignment under which these proceedings arose was made May 11th 1840, and was of all the estate, real and personal, of the assignor.
    The assignee filed his final account on the 18th of April 1853, which, after considerable litigation, was confirmed by the Court of Common Pleas, and the decree of confirmation affirmed by the Supreme Court on the 1st of October 1855. By this decree it was ascertained that there was in the hands of the assignee, payable to the assignor, the sum of $43,557.46, of which $26,556.04 was a bond of one Helfenstein, and $17,001.42 cash; — as found by the report of auditors in the Court of Common Pleas.
    James B. Lane, the assignee, died about January 1863, intestate, and administration of his estate on the 22d of that month was granted to Martha J. Lane and William B. Eordney.
    On the 12th of October 1868, Heckert filed a hill in the Court of Common Pleas, setting forth the foregoing facts, and averring that he had frequently demanded payment of the above balance, with interest, but that he had “ not been paid the same or any part thereof.” He prayed that the administrators might be ordered to pay the amount decreed to be due him with interest, and also for general relief.
    The administrators in tneir answer set out, amongst other things, “ that on the 12th of April 1855, the bond of Helfenstein was paid to the said James B. Lane, with interest thereon, amounting to $1617.44, which interest was in addition to the balance reported by the auditors; that immediately after the decree of the Supreme Court Lane proposed to the complainant’s counsel to pay the money to him, hut he declined to receive it, and the complainant was invited to come on and draw the money himself; that Mr. Heckert came to Lancaster some time afterwards, and called on Mr. Lane, requesting him to pay the money in two checks, one for $40,000 and the other for the balance of the money, saying he would call for it in the morning; that Mr. Lane had a release prepared by a scrivener for Mr. Heckert to sign on receipt of the checks, but Mr. Heckert did not call for the checks next morning nor afterwards]; that Lane opened an account on the 30th of March 1855, in the Lancaster Bank, as James B. Lane, assignee of George Heckert,’ and on that day deposited to the credit of said account $19,888.22, and on the 13th of April following the further sum of $28,233.48, being the principal and interest of the Helfenstein bond; that at the time of said deposits until its failure the bank was in good credit; that some time after the deposits above referred to were made, Heckert entered into an arrangement with the officers of the Lancaster Bank, whereby he was to receive interest from the bank upon the funds deposited as aforesaid; that this arrangement was made privately, secretly and without the knowledge of Lane, and was studiously kept concealed from him; and that in pursuance of this arrangement Heckert from time to time drew his cheeks upon the bank for the interest on the funds, which were paid, and received interest in the aggregate amounting to $2470.25, until the bank failed, on or about the 16th of November 1856, and on the 3d of February 1857 made an assignment for creditors, and no assets have been distributed among its depositors; * * * that they gave due notice of their administration to creditors and others; and on the 20th of August 1864, filed their administration account, which was confirmed, and on the 19th of August 1865, filed their final account, which was also confirmed, and the balance thereon was paid over to the widow and heirs; that the complainant never made any demand upon them as administrators as aforesaid, until the filing of his petition on the 12th of October 1868.”
    A general replication was filed on the 5th day of January 1870, and Amos Slaymaker, Esq., appointed auditor.

      By his report, the auditor found, amongst other things, as follows :—
    “ On the 30th of March 1855, the assignee had deposited in the Lancaster Bank of the city of Lancaster $19,888.22 in cash to the credit of an account which was then opened with that institution, and appears in its books as the account of the ‘ Lancaster Bank with James B. Lane, assignee of George Heckert.’ On the 13th of April 1855, he made a further deposit to the same account of $28,233.48, thus making the entire amount of the deposit to the credit of the trust, $48,121.70, which, beside the amount due to the assignor, included a sum of $2886.80, that was payable either to creditors or to the assignee. Upon this deposit checks were drawn by Mr. Lane upon written orders of Mr. Heckert, * * * amounting to $2957.68, leaving due him a balance of $42,277.32. * * * The Lancaster Bank, at the time that this deposit was made, was, and up to the day its doors were closed, continued to he in good credit, and to do a very large business. Mr. Lane deposited with it in various capacities, and at the time of its failure the firm of James B. & G. Taylor Lane, of which he was the leading member, had a balance in their favor of $1110.68. At the time of the final decree Heckert was living in Northumberland county. His counsel was the Hon. Thaddeus Stevens. William B. Eordney, who was counsel for Mr. Lane, * * * shortly after the decree called upon Mr. Stevens, and requested him to come and draw the money as Heckert’s counsel. He declined, stating that he would write to him to come on and draw it himself. Mr. Heckert was in Lancaster on the 29th of October 1855, on which day a release was prepared by William Carpenter, Esq., for him to sign on receiving his money. Mr. Heckert was in Lancaster also on the 27th of November 1855, and on the 2d of January 1856, but no further step toward the transfer to him of this deposit appears to have been taken, either on the part of Mr. Lane or himself, and there is no evidence that he at any time demanded such a transfer from Mr. Lane. One witness testifies that about this time Heckert told him that he had not received the balance coming to him out of the estate, and would not take it or touch it. On the 15th and 28th of December 1855, checks were drawn by Mr. Lane on this deposit, on written orders of Mr. Heckert in favor of attorneys for creditors of Heckert. Subsequently to this no part of the deposit appears to have been drawn out by Mr. Lane or any one else, and the balance remained standing on the hooks of the bank to the credit of James B. Lane as assignee of George Heckert at the time of the failure of the hank, which occurred in the month of November 1856. At some time during the fall of 1855 or winter of 1855 and 1856, Mr. Heckert entered into an arrangement with the president of the Lancaster Bank, as to which the president, B. C. Bachman, testifies as follows: 41 was notified by Mr. James B. Lane that Heckert was in Lancaster and would want his money, and that he had already prepared checks for him to draw the amount standing to his credit as assignee, on the following morning. The bank being seriously embarrassed at that time, I was anxious to retain the deposit for its benefit; I deemed it important to call upon Mr. Heckert in reference thereto. I found him, and ascertaining that that was his business, I requested him to come to the bank, as I desired to see him privately. He called in the evening as per agreement. When there, after some conversation, Mr. Longenecker being present, an arrangement was entered into with the said Heckert that he should receive a certain sum of money as interest on the deposit then standing to the credit of James B. Lane, assignee of George Heckert, and that he should receive interest on said deposit so long as it remained in the Lancaster Bank to the credit of James B. Lane, assignee. In pursuance of this arrangement the said Heckert was paid by me different sums of money at various times. I cannot recollect the amounts. The last sum having been paid to him by me a few days or a short time before the failure of the bank.’ This statement is corroborated by the testimony of David Longenecker and other officers of the bank, as well as by its books, and may therefore be taken as absolutely correct.” * * *
    The auditor further found that the administrators, after having given due notice of the grant of administration, 44 settled a partial and afterward a final account, and paid over to those entitled thereto the balance thus appearing to be due to them — taking releases, but not refunding bonds. Neither during the process of settlement of this estate, nor subsequently, was any claim against the estate presented by or on behalf of Mr. Heckert, until October 12th 1868, when this proceeding was commenced.
    “ The entire ground of controversy, which has arisen from the state of facts narrated above, seems to be covered by two questions. These are 1st. Is Mr. Heckert, by reason of his acts with reference to the balance of the trust fund on deposit in the Lancaster Bank, to be regarded as having assumed possession of that balance, and 2d. If he is not to be so regarded, has his failure to obtain possession of that balance been caused by any wilful default on the part of his assignee James B. Lane ?
    “ In order to obtain a satisfactory answer to the first of these questions it will be necessary to consider the situation and character of this deposit at and after the time of the final confirmation of the decree distributing this estate; the rights and powers of the assignor, as to the balance, by that decree ascertained to be due to him; and finally the acts of the assignor with reference to that balance, and the effect of those acts, upon the previously existing relation to that balance of his assignee and himself.”

      The auditor then states the facts bearing on this question, and applies the principles of the authorities, which he extensively quotes, and proceeds.
    * * * “ These facts are not slightly, but strongly, if not conclusively, indicative of ratification of the course of the assignee ; and the conduct of the assignor, Mr. Heckert, if not absolutely inconsistent with any other supposition, did unquestionably best consist with the idea that for reasons sufficient to himself, he had come to the conclusion to leave the deposit unchanged, and by orders on the assignee to obtain such portions of it as from time to time he might require. Finally, and in addition to his positive acts indicative of acquiescence in the continuance of the deposit in the Lancaster Bank in the name of his assignee, there is no evidence that on that particular point he in any reasonable time expressed his dissatisfaction with the conduct of his assignee. He has, on' the contrary, as far as appears from the testimony, on this subject preserved a profound silence, which has been broken, now only, after the lapse of fourteen years, when the bank has long since been ascertained to be wholly insolvent, and his assignee and his counsel have both died, and the estate of the former been entirely settled and the balance of it distributed among his heirs. In fine the conclusion of the auditor is, that the plaintiff by his long-contin'ued silence, as well as by positive acts of acquiescence, is now estopped from questioning the propriety of his agent’s conduct in permitting the balance of the estate to remain on deposit in the Lancaster Bank subsequently to the decree of the Supreme Court.
    “ The answer to the former of the two questions proposed in the earlier part of this report, therefore is, that Mr. Heckert, by reason of acts with reference to the balance of the trust fund on deposit in the Lancaster Bank, must be held actually, or if not actually, constructively, by the adoption of the acts of the assignee, to have assumed possession of that balance.” * * *
    On the 2d inquiry, as to default on the part of Lane, the auditor, he said:—

      “ In the opinion of the auditor, then, Mr. Lane was not bound to seek out Mr. Heckert as soon as the decree of the Supreme Court was announced, and tender to him the balance which by that decree was ascertained to be due to him, but was justified in waiting to receive his directions as to its disposal. While waiting for such directions, which might be expected at any time subsequently to the decree, his natural and proper course would be to leave the money in the bank on deposit. The Lancaster Bank, in which the money was deposited, was at that time in good credit, and so continued up to the time its doors were closed. Mr. Lane himself deposited with it, and the firm, of which he was a member, lost by its failure some $1100, which was the amount of the balanee in their favor on the hooks of the hank at that time. In making and continuing the deposit in the Lancaster Bank he cannot therefore he regarded as having acted otherwise than in entire good faith, and with common prudence, diligence and skill.
    “ Finally; in the general management of the business of the trust, and also in his conduct with reference to the balance payable to Mr. Heekert, Mr. Lane appears to have acted in absolute good faith, and carefully, skilfully, diligently, and with results most advantageous to the interests of his cestui que trust. That those results were not fully realized and enjoyed by Mr. Heekert, seems to be attributable entirely to himself. The evidence shows that Mr. Lane was ready to pay over his money to him when it became due, and that he actually proposed to pay it to his counsel. And there is no evidence that Mr. Heekert, though in Lancaster repeatedly during the three or four months immediately subsequent to the time of the final decree of the Supreme Court, ever demanded his money from Mr. Lane, or gave him any instructions as to its disposal. In the opinion of the auditor, therefore, there was on the part of Mr. Lane no such failure in the performance of his duty as assignee of George Heekert, as would sufiice to make him responsible for the loss of the fund of the trust on deposit in the Lancaster Bank.”
    The auditor reported that the bill be dismissed.
    After exceptions by the plaintiff the report of the auditor was confirmed by the Court of Common Pleas (Hayes, J., delivering the opinion).
    Heekert appealed to the Supreme Court and in several specifications assigned the decree for error.

      J. L. Mayer, for appellant.
    A decree that there is a sum of money due by an accountant, is a decree for the payment of the sum found to be due: Shollenberger’s Appeal, 9 Harris 341; Vincent v. Watson, 4 Wright 306; Gilmore v. Rodgers, 5 Id. 120. Execution upon a decree is regulated by statute, and is personal against the party when he has appeared to the proceeding: Wesley Church v. Moore, 10 Barr 281; Barr v. Barr, 2 Hen. & Munf. 26; Moore v. Ferguson, 2 Mun. 421. When a trustee is called on to answer for a breach of trust, the complainant, before decree, has an option to elect whether he will claim the fund in its transmuted form, or ask a decree for the money misapplied: Story’s Equity, 9 ed. §§ 1262-1273 a; Pocock v. Reddington, 6 Ves. J. 794. But after a decree has passed against the trustee, a partial satisfaction by a receipt of trust funds, included in the decree, would operate only as a satisfaction pro tanto: Patton & Ruthrauff’s Appeal, 12 P. F. Smith 143. If under the best advice a trustee acts wrong, it is his misfortune; but public policy requires that he should be the person to suffer: Lewin on Trusts *366; Boulton v. Beard, 27 Eng. L. and Eq. R. 421; Hill on Trustees *555; Neff’s Appeal, 7 P. F. Smith 91; Keller’s Appeal, 5 Barr 390; Konigmacher’s Appeal, 1 Penna. R. 207. Mr. Lane was not the agent of Mr. Heckert; a trustee is vested with the title to the property, while an agent has only the custody and management of it: Beans v. Bullitt, 7 P. F. Smith 221; 1 Story Eq. § 464; Hill on Trustees 41; Geddis v. Irvine, 5 Barr 508. He should have made the funds productive: Lane’s Appeal, 12 Harris 487 ; Biles’s Appeal, Id. 335; Stearly’s Appeal, 2 Wright 530; Landis v. Scott, 8 Casey 495; Mayberry’s Appeal, 9 Id. 258; Lukens’s Appeal, 11 Wright 356; Yundt’s Appeal, 1 Harris 575; Bruner’s Appeal, 7 P. F. Smith 52. The final decree of the Supreme Court, carried interest from the date of the former judgment: Wither’s Appeal, 4 Harris 151. A trustee cannot invest the funds of the trust on the credit of a bank, except at his own risk: Hemphill’s Appeal, 6 Harris 303; Worrell’s Appeal, 11 Id. 44; 2 Story’s Eq., 9th ed. § 1274; Aston’s Estate, 5 Wharton 228; Moyle v. Moyle, 2 Russ. & M. 710; Darke v. Martyn, 1 Beav. 525; Hill on Trustees 376; Barney v. Saunders, 16 Howard 535. The decree affirmed in this court on the 1st of October 1855, bore interest like any other judgment: Wither's Appeal, 4 Harris 151; Brightly 561, pl. 6. The trustee could not refuse to pay, until a general release from all demands be given to him by the cestui que trust: Hill on Trustees, 4th ed. 1867, *580. As Mr. Lane was not a party or privy to the arrangement with the bank there could be no estoppel, or a settlement: Brubaker v. Okeson, 12 Casey 519; Eldred v. Hazlett, 9 Id. 307; Commonwealth v. Moltz, 10 Barr 531; 2 Smith’s Leading Cases 645; Jewett v. Miller, 6 Selden 402. It is a case where one is innocent, and the other almost criminally negligent; the latter must make good the injury: Larkin’s Appeal, 2 Wright 457-459. If Lane adopted the act of Bach-man as his own, he would make 'the latter his agent, and be chargeable with the knowledge which Bachman possessed of the condition of the bank: Berry hill’s Administratrix’s Appeal, 11 Casey 245; Shoch’s Appeal, 9 Id. 351. The business of taking proper care of the fund devolved on the trustee himself. There is no specific time for calling for an account, much less for payment which has been already decreed: Chalmer v. Bradley, 1 Jac. & Walk. 67; Hill on Trustees 168; Lewin on Trusts 729. It was the folly of the administrators to pay over the money without taking the proper security: Musser v. Oliver, 9 Harris 362. Payment over was at their own risk: Brightly 1861, pl. 303, pl. 181.

      S. H. Reynolds and G. M. Kline, for appellee.
    The duties of the assignee included the payment of creditors, as well as the custody and management of the assigned estate, and while any of those duties remained to be performed he could not be discharged.
    The balance remaining in the hands of the assignee reverted to the assignor as absolute owner, and became subject to the usual incidents of ownership: Webb v. Dean, 9 Harris 82; Hubler v. Waterman, 9 Casey 414; Estate of Potter v. Page, 4 P. F. Smith 466; Denton v. Denton, 17 Maryland Ch. 403; Rice v. Burnet, 1 Spear 687; Rife v. Greyer, 9 P. F. Smith 396 ; Dodson v. Ball, 10 P. F. Smith 492; Bush’s Appeal, 9 Casey 85; Kay v. Scates, 1 Wright 31. Mr. Lane being a trustee for distribution, was “ under obligation to have the trust funds in hand ready to pay over to the rightful claimants: ” McElhenny’s Appeal, 10 Wright 347.
    ■ The owner could have recovered the deposit from the bank: Farmers’ and Mechanics’ National Bank v. King, 7 P. F. Smith 202; Bank of Northern Liberties v. Jones, 6 Wright 536.
    The assignor’s long-continued silence proves both his acquiescence in the deposit and his positive concurrence and acceptance of it: Smith v. Olay, in note to Deloraine v. Brown, 3 B. C. C. 639.
    Trustees will not be liable, if in the ordinary discharge of their duty they deposit the assets in a bank, although the bank may fail: Johnston v. Newton, 11 Hare 160; Wilks v. Groom, 3 Drew 584; 3 Leading Cases in Equity *740; 2 Story’s Eq. Jur. §§ 1269, 1270; Commonwealth v. McAllister, 4 Casey 480; s. c., 6 Id. 536. Lane was not bound to invest the fund: Biles’s Appeal, 12 Harris 337; Yoder’s Appeal, 9 Wright 394; McElhenny’s Appeal, supra.

    An assignee for the benefit of creditors is the mere agent of the assignor: Vandyke v. Christ, 7 W. & S. 375; Dohner’s Assignees, 1 Barr 104; Rogers v. Fales, 5 Id. 158.
    If the principal performs acts of ownership over the property, he confirms the doings of the agent: 1 Parsons on Contracts 82; Smith on Mercantile Law 147; Story on Agency, § 255; Hill on Trustees 382, 526, *527. Acquiescence is presumed from delay: Ashhurst’s Appeal, 10 P. F. Smith 315; Harden v. Parsons, 1 Eden 145. A court of equity requires from trustees only common skill, prudence and caution: During’s Appeal, 1 Harris 224.
    It is sufficient if the agent keeps the money received by him safely and is ready to pay it over on demand: Williams v. Storrs, 6 Johns. Ch. Rep. 353; Cooley v. Betts, 24 Wend. 203; Drexel v. Raimond, 11 Harris 21; Krause v. Dorrance, 10 Barr 462; McDowell v. Potter, 8 Id. 190; Campbell v. Boggs, 12 Wright 524. If money he in the hands of a trustee, and he has done nothing amounting to an abuse of the trust, he is not liable to an action without a demand: Sears v. Patrick, 23 Wend. 528; Walrath v. Thompson, 6 Hill 541.
   The opinion of the ‘ourt was delivered, October 9th 1871, by

Williams, J.

We nave examined with great care the whole of the voluminous record in this case, and are of the opinion that the evidence fully sustains the finding of the auditor, and that he has drawn the proper legal conclusions from the facts as found. If Heckert, knowing that Lane as his assignee had deposited in the bank a sum equal to the whole trust funds remaining in his hands, and which he had offered and was ready to transfer, agreed with the bank that he would not demand the money of the assignee but that it might remain in the bank for its use on the payment of interest thereon to him, it is clear that whether he made the arrangement known to the assignee ‘ or not’ he assumed such dominion and control over the fund, as in equity would discharge the assignee from all responsibility for the loss arising from the failure of the bank. He could not by a secret contract agree that the bank should retain and use the deposit on paying him interest thereon, and yet hold the assignee responsible for the solvency of the bank and its safe keeping of the fund. The auditor found in substance that Heckert did make such an arrangement with the bank after the assignee had offered to transfer to him the money, and that he received the fruits of it down to the time of its failure; and he rightly held that he was chargeable with the loss. The appeal must therefore be dismissed and the decree of the court below affirmed.

And now, October 1871, This cause came on to be heard at the last May Term of this court held at Harrisburg, and was argued by counsel, and, upon consideration thereof, it is now ordered, adjudged and decreed that the appeal be dismissed and the decree of the court below affirmed at the costs of the appellant.