author: GibsoN, C. J.

text:
    ALEXANDER McLEAN, Register, for use, against The Executors of JAMES FINLEY, deceased.
    IN ERROR.
    The presumption of satisfaction which arises as to a bond, conditioned for the payment of mony, after the lapse of twenty years, is equally applicable to an administration bond; and the proof of circumstances to prevent the presumption of payment from beginning to run one year after the date of the bond, rests with the plaintiff.
    The exhibition of an administration account in the register’s office, within the period of twenty years before suit brought, is not such an act on the part of the administrator, as will take the case out of the rule.
    There is no general rule, in a case like this, by which the force of circumstances of counter-presumption may be safely determined; and the whole may beproperly left to the jury as a matter purely of fact.
    Error to the Common Pleas of Fayette county.
    This was an action of debt upon an administration bond, brought to January term 1823, in the name of Alexander McLean, register, for the use of Robert Jackson and Nancy his wife, who was one of the heirs of Daniel Cannon, deceased, against David A. Sherard and John Junk, executors of James Finley, deceased^ who was the surviving defendant of Agness Cannon and James Rankin, who were surviving obligors of John Cannon and Matthew Wylie, deceased.
    The bond upon which suit was brought was dated 28th March, 1797, and was executed by Agness CannOn, James Finley and John Cannon, as principals, and administrators of Daniel Cannon, deceased, and by James Rankin and Matthew Wylie, as their sureties. Penalty ¿¡62000, with the condition prescribed by the act of assembly.
    The breaches assigned were,
    1. The defendants did not make put and file an inventory, within one month from the date of the bond.

      2. The defendants did not state and settle their administration account within one year after the date of the bond; nor was any such thing done before the 9th December, 1805, when an account was filed in the register’s office, but never presented or approved by the Orphan’s Court.
    3. That according to the statements filed by the defendants in the register’s office on the 9th December, 1805, there was a balance of the personal estate of the said Daniel Cannon, dec’d. in their hands, after payment of all debts amounting to ¿61449 5s. (is., one-third whereof was to be paid by them to the widow of said deceased, and the remaining two thirds to and among the children, being seven in number, of said deceased, in equal portions. And that the defendants had refused to pay the said Robert Jackson and Nancy his wife, their proportional part, to wit, the sum of J138.
    Plea, payment with leave, &c. Rep. Non solverunt issue.
    The Court below, {Baird' president) charged the jury- as follows:-'
    “The execution of the bond here is admitted: Have its conditions been fulfilled? You will observe that particular duties are set forth, which, if' performed, will discharge the obligation. Negligence or failure, however, incursa forfeiture of the penalty, which will-be held as a security for the-parties who may be injured. If you are satisfied that the bond'was'-forfeited by a failure to,perform tKe condition, i’t: remains to-consider certain legal principles, upon which it is claimed that the defendant is discharged from liability on his bond. It is said the act of 4th April, 1797, fixes the limitation of 7 years, within which suit’must be brought on the bond. This however seems to relate to the remedy of creditors, against the sureties of administrators. Such has been' the construction of the highest tribunal of the state; which can leave'hs no room for opinion. It is urged that a presumption of payment:arises from lapse of time. A rule of policy has become settled law, that after 20- years, a bond shall be considered paid, unless some facts appear to- repel the presumption. -I see no reason why the same wise and equitable rule should not be applied to such an obligation as the present. It isriaken for the benefit and security of individuals, and the same presumption ought to arise from their laches, as in the case of private bonds. This bond was executed in 1797, and no proceedings were had upon it until January term 1823, a period of 26 years. How is the delay accounted for? Does it accord with the known principles of humun nature to sit quiescent for many years, and never assert a right indisputable? In 1S05, John Cannon the acting administrator files an account in the office of the- register, showing a balance in his hands1 of more than ¿21400, for distribution among the heirs. Does the presumption arise that this balance'was paid to the claimants? It lias been said that even a lapse of 18 years will allow a legal presumption of payment, where the case presented cir'eumstanees to-strengthen the presumption of fact. This period is about 18; yearsi Do the facts give ground to believe that this money was paid? Here is a balance adjudged by the administrator, and admitted to- be in his hands for distribution. Do you believe that they permitted their several shares to remain uncalled for? Or do the circumstances warrant- the-belief, that payment was made? We leave the case on this point to you. Are there any circumstances to repel the legal presumption o'f payment 'from the lapse of timé? If.there are none, the suit on the bond ought to be barred. If 'however, the settlement in'1805-is considered as .impairing the legal presumption from m.ere lapse of time, still if there is preponderating evidence of fact or circumstances to raise a presumption of payment in fact, it will strengthen the’legal presumption, and the plaintiff ought not to recover.”
    The jury found a verdiet for the defendant. The plaintiff look an exception to the charge of the Court, and here assigned several errors, embracing every part of it.

      Kennedy for plaintiff in error.
    The condition of the bond upon which this suit is brought, differs from the ordinary case of a bond conditioned for the payment of money; in that case the reason for the legal presumption is, that the evidence of payment may have been destroyed by the lapse of time. But in this case, the condition was for the performance of certain acts, which, when performed, became matter of ■record; such as the-filing of an inventory and the settlement of an account. The lapse of time affords no presumption.that such acts were done.
    By the settlement and filing of their, administration account in 1605, the administrators thereby admitted, that up to that period, the condition of their ¡bond had not been complied -with; and not having been complied with then, norat any time afterwards, it was a breach well assigned, and sustainable in this action, brought in December, 1822.
    But the ¡lapse of time-should not be sustained asa defence in this action, the judgment in which-would be only cautionary. If a judgment is obtained by the defendants, in this suit, upon their plea of payment; it forever bars a recovery upon this bond, by any one in interest, however clearly be might be able to remove ■such presumption by proof. This defence, if-available at all, can only be used upon a scire facias, to be issued by any one in interest. Cited: Commonwealth v. Bryan, 8 Berg. & Rawle, 132. Carlv. Commonwealth,'9 Berg. & Rawle, 63. Commonwealth v. Shryock, 15 Berg. & -Rawle, 59.

      Fetterman and Daioson for defendant in error.
    The act of assembly fixes the time within which the representatives of a deceased person shall settle the estate of their intestate, and requires of administrators an obligation that they will file an account of their administration within one year. After the lapse of that time a right of action accrues upon that obligation to any one, who has any interest in the estate. That right accrued to .the present plaintiff in 1798; and if it was not exercised for twenty-four years, every reason which applies to the case of a common bond, and bars arecovery upon it after twenty years, applies with peculiar force to this. Cited, Wilcox v. Plummer, 4 Peters’ U. S. Rep. 173. Gemberling v. Myer, 2 Yeates, 344.
    In addition to the legal presumption of satisfaction, is the fact, that in 1805 the parties were actually engaged in a settlement, and which progressed to a statement by the administrator, of the account. This strengthens the presumption of satisfaction.

      Mr. Findley, the defendant’s intestate, stands in the nature of a security never having received any portion of the estate.
   The Opinion of the court was delivered by

GibsoN, C. J.

The alleged errors all depend on the same principle. The administration bond was executed in 1797; the administrators filed an account shewing a balance in 1805; and suit was brought in 1823. But the account was never carried to the Orphan’s Court to be confirmed; and thus there was an interval of twenty-five years from the execution of the bond, and eighteen from the movement towards a settlement. The administrators were bound to settle their accounts, and were consequently prima facie liable to make distribution at the expiration of a year; so that the proof of circumstances to prevent the presumption of payment from beginning to run at that time, rested on the plaintiffs. Was the exhibition of an account in the register’s office, like payment of interest on a plain bond, a confession of the balance, which rebutted the fayt of payment at that time? And ought it to have been put to the jury as a matter of law? Had the balance been decreed, the affirmative might have been more plausibly asserted; but while the account remained in fieri, the balance was subject to be altered or shifted by new credits or subsequent charges, and it would therefore be dangerous to fix the administrators with it as it was exhibited. Beside, it is not easy to say why they were suffered to stop short of a perfect account, on any other supposition than that of private satisfaction. But I am not prepared to say that even a decree would arrest the presumption. In adapting general rules to particular transactions, respect must be had to the nature of the business and the habits of the persons engaged in it. Now, where thee state is notoriously solvent, it is an undoubted practice to make paj ments on account, most of the parties entitled being frequently paid off before settlement of the account which exhibits only the general balance, as previous payments to the distributees do not properly belong to it. There would therefore be the same inconvenience and danger of injustice in requiring the production of vouchers after a great lapse of time, where there has been an intervening settlement for the satisfaction of those who had got nothing, as if there had been none. In actions on book accounts,' the lapse of six years is a legal bar; and that the same period is not so in regard to administration accounts, is merely because the balance is collaterally secured by a specialty; and the pr'esumtion from lapse of time ought therefore to be taken as favourably for the accountant as the circumstances will bear. There is, then, perhaps no general rule, In a case like this, by which the force of circumstances of counter-presumption may be safely determined; and the judge who tried the cause very properly left the effect of filing the account, to the jury as^a matter purely of fact.

Judgment affirmed:


source: Caselaw Access Project

author: Smith, J. Huston, J.

license: Public Domain

text:
    DANIEL P. LYNCH for the use of JAMES NOBLE against GEORGE DEARTH.
    IN ERROR.
    J. sold a house and lotto R., by articles of agreement, and delivered the possession, upon receiving one ha,lf of the purchase money: J. afterwards brought an ejectment to compel the payment of the balance, and recovered a judgment, to be released on the payment of the money within nine months.
    After the lapse of nine months N. obtained a judgment against R. Subsequently J. took out a hah. fas. pos. which was put into the hands of the sheriff; when D. loaned to R. a sum of money sufficient to pay J. J. then delivered a deed to R. which had been previously executed, for the house and lot, and R. immediately executed a mortgage to D. to secure the money so advanced by him. The house and lot was afterwards sold upon the mortgage, for a sum insufficient to pay both N’s. judgment and D’s mortgage. Held: That N’s. judgment was entitled to priority.
    Writ of error to the Common Pleas of Fayette county.
    This was an amicable action to try the right to the proceeds of a sale by the sheriff, in which the plaintiff in error was the plaintiff below. The following, facts were agreed to by the parties, and considered in the nature of a special verdict:
    On the 26th day of September, 1815, John, Johnston sold to Thomas Rhoads a house and lot, and a vacant lot in the borough of Brownsville, for the consideration of sixteen hundred dollars, @800 of the purchase money, by the articles of agreement, were to be paid on or before the first of April, 1816, at which time possession was delivered; the residue in two annual payments from first of April, 1816. The first payment was made according to contract. On the second day of November, 1819, Johnston executed a deed of conveyance, pursuant to the articles, and on the loth day ef January, 1S20, the deed was delivered to Rhoads, and Johnston received the balance of his purchase money-: and on the l-9th day of January, 1820, the deed was recorded in the office for. recording of deeds in said county. On the •14-th day of December, 1819, Steven G. Stevens, for the use of James Noble, obtained a judgment against said Thomas Rhoads, in the Court of Common Pleas ef said county, No. 192, of August term, 1818, for the sum of seven hundred dollars, with interest from the 24th May, 1818: on which an execution issued, a ft. fa. No. 53, of March term, 1820; and the property above specified was levied on.
    On the tenth .day of January, 1820, George Dearth, loaned to Thomas Rhoads the sum of one thousand and ten dollars, and at the same time Rhoads executed .to him a deed for the property above named; but it was understood and agreed between Rhoads and Dearth, .that the deed thus given was to secure the payment to Dearth of the one thousand and ten dollars, and interest, within four months, and if not paid at that time Dearth was to make his money out of the property. The money got of Dearth was to be paid to Johnston. That Johnston and his attorney met Dearth and Rhoads at Col. Brashears’ in Brownsville, on the said tenth January, 1820: that Dearth gave the sheriff of Fayette county, (who was present there with writs of hab. fa., under a proceeding in the Court of Common Pleas of Fayette county, by Johnston against John and James JLuld, and William Rhoads, tenants of said Thomhs Rhoads, to recover possession of said property,) a check on the bank of Brownsville for the sum of $1,010, which was paid: and Johnston received his money, and the sheriff did not give possession to Johnston, and no further proceedings were had by the sheriff on the writ last aforesaid. The money was paid to Johnston, and the deed from him to Rhoads delivered to Rhoads>• and at the same time and place Rhoads executed the deed to Dearth, and delivered to Dearth the deed received from Johnston, and the one executed by himself. Johnston knew that the money he received as the balance clue him 'on the property sold to Rhoads, was furnished by Dearth; but Johnston was no party to the arrangement between Dearth and Rhoads.

      Johnston had refused to make a deed to any other person than Thomas Rhoads — was himself anxious to get the property back under his proceedings in the Common Pleas, before referred to: and was willing to throw every difficulty in the way to prevent Rhoads from getting the money, with which to pay him. He had offered at the time of the trial of'the ejectment between Rhoads and Johnston, to refund to Rhoads the money he had .veceived on the article; but this Rhoads declined. An amicable
      $ci. facias, No. 135, of March'term, 1822, by agreement between Dearth and Thomas Rhoads, was entered, and fbundéd on the deed from Rhoads to Dearth, which was considered a mortgage by them ; and a judgment confessed on the 12th February, 1822, for the sum of @1,136 35, on which a levari facias was issued to October term, 1S22, No. 143, and the property aforesaid was soldi the house and lot to George Dearth, for @850: the other parcel to William Hogg, for 60 dollars. The sheriff executed a deed to Dearth for the house and lot, but received no money ; said Dearth claiming to hold it on his own claim against Rhoads as aforesaid ; Rhoads never having repaid him the money. If, from the foregoing statement, the Court should be of opinion that the plaintiff is entitled to have judgment entered in his favour, then it is to be entered, that he recover of the defendant, eight hundred and fifty dollars, with interest thereon, from the first day of November, 1822, besides costs of suit, otherwise judgment to he entered for the defendant generally.”
    In addition to the foregoing statement, these .facts, which might seem to be material, appeared from the papers exhibited, that in the action of ejectment by Johnston against Rhoads, to compel the payment of the balance of the purchase money, a judgment was obtained by the plaintiff, on the 4th of March, 1819, to-be released on the payment of the money in nine months, whieh expired on the 4th December, 1819, and before Noble obtained his judgment.
    Tire Court below gave .judgment for the defendant.

      Kennedy for plaintiff in error,
    being absent, submitted the following written argument.
    ■ In order to shew that Noble’s judgment is entitled to a preference, I will first notice all those eases and principles upon which I suppose that the defendant’s counsel will endeavor to prove the converse of this proposition. I think that I may venture to assert that the defendant’s counsel can produce no case similar to the present in which a decision has been given favorable to their side of the question. And I will further undertake to shew that all the eases which they may refer to, and think have a bearing on the matter in eontrovérsy, are quite different from the present, and that the principles, upon which they were decided, will not support their client’s claim in this cáse. . It is possible that they may rely on the case of Holbrook v. Fenney, in 4 Mass. Rep. 566, where the father, by deed, in consideration of £400, conveyed the land to his four sons, who,-by deed of the same date, and in pursuance of-a previous agreement'made for that purpose between them, mortgaged the same land to their father, in fee, to secure to him the payment of the £400, with interest, &e. These two deeds being executed at the same time, under a previous agreement, were considered by the court “as parts of one and the same contract between the parties.” See page 569. How very different is the case submitted to the Court? In it, the deeds from Johnston to Rhoads and from Rhoads to Dearth, though delivered on the same day, were not signed and sealed on the same day — the deed from Johnston to Rhoads was signed, sealed and acknowledged by Johnston and his wife upwards of a month before the signing and sealing of the deed from Rhoads to Dearth-Neither were they executed under the same contract. The deed from Johnston to Rhoads was executed in pursuance of an agreement between Johnston and Rhoads, made many years before, to which Dearth was no party, and of the making of which he had no knowledge. But the deed from Rhoads to Dearth was executed in pursuance of an agreement, made on the day of its date, between Rhoads and Dearth to which Johnston was no party, and after Johnston had'refused peremptorily to make a deed to Dearth or any other than Rhoads. It is, therefore, impossible to say as Gbief Justice Parsons said, in the case of Holbrook v. Fenney, “that these two deeds are parts of one and the same contract between the parties.” — It must be observed that, in Holbrook v. Fenney, the parties to both deeds were the same, and the words, “the parties,” used thus necessarily, means the sameparties. The case of Cbickering v. Lovejoy, et al., 13 Mass. Rep. 51, is in substance the same with Holbrook v. Fenney. The deeds from Witheringion to Wilcox and from Wilcox to Chickering, were executed in pursuance of the same agreement to which these three were parties. The agreement is stated in page 52: there was but one agreement; it is impossible to make two out of what is there set forth; and, under that one agreement, both deeds were executed, and done at the same time between the same parties. Hence Justice Wild, page 55, in pronouncing the opinion of the Court, says, “these deeds must be considered as parts of the same contract.” So, in the case of Stow v. Tifft, 15 Johns. Reps. 458, the two deeds were executed at the same time between the same parties, under one and the same agreement. It is the same case quatuor pedibus with Holbrook v. Fenney, and Spencer Justice, who delivered the opinion of the Court, adopts the same language of Chief Justice Parsons, “that when a deed is given by the vendor of an estate, who takes back a mortgage to secure the purchase money at the same time that he executes the deed, that then the deed and the mortgage are to be considered as parts of the same contract, as taking effect as the same contract, and as constituting but one act; in the same manner as a deed of defea-sance forms with the principal deed, to which it refers but one contract, although it be by a distinct and separate instrument.” The basis of all these decisions is, that the execution of the several deeds was done in pursuance and in performance of one and the same contract, between the same parties, at the same timef Unity of time, contract, and parties, seems to be of the very es-; sence of -the principle upon which these decisions have- been made; whereas, in the case presented to. the court, all these unities are wanting, with the exception of the' delivery of the deeds. They were delivered at the same time and place, or nearly so. First, Rhoads receiving his deed from Johnston, and immediately after delivering it over with his own deed to Dearth. But this happened not in pursuance of any one agreement between these persons, but because Johnston would not deliver the deed he made to Rhoads until he had received his money, and Rhoads could^ not pay the money until he received it from Dearth, with whom he had made an arrangement to get it, but Dearth was not willing to trust Rhoads with the money out-of his sight, and-to receive of him, at another time, the mortgage, after Rhoads should have got his deed from Johnston,-\est he might misapply the money, and therefore Dearth accompanied Rhoads when he came to !pay the money to Johnston. It is manifest Johnston de** livered the deed he made to Rhoads, exclusively under a contract between" him and Rhoads, made years before, and Rhoads made and delivered his deed to Dearth under a contract, exclusively between themselves, made on that day.
    If the foregoing cases had any bearing upon the question now presented to the Court, which I think they have not, I might observe, that they are decisions of no binding authority on this Court, and that they are in opposition to the decision of the Court in Rash v. Preston, Cro. Car. 190, which is.of authority that .is binding upon this Court. There was a bargain and sale of the land to the husband for £120, in consideration that the bargainor should redemise it to the vendor, and his wife during their lives, and with a condition that if they repaid the ^6120 at the end of 30 years; the bargain and sale should be void ; he redemised accordingly, and the wife of the vendee held entitled to dower. Norv if. is clear that this case cannot be distinguished from the New York-and Massachusetts cases. It is true, that Coke says a wife ¡shall not be endowed of a seizin for an instant, Co. Lit. 31, b. So-Btac&ctone in his Commentaries, 3 vol. 131, speaks of an instantaneous seizin of -the husband as being insufficient. But when we refer'to the examples given as illustrative of this proposition, they are all cases in which the husband was not intended to have any real, substantial, or beneficial interest, but used-: as .a mere conduit to pass the estate from one to another. As i.n Cromwell’s case, 3 Co, 77, where by a fine, land was granted to a'roan, and'he, immediately, by the same fine, rendered it back again, such seizin did not entitle his wife to dower. See, also, - Preston on Estates — title Dower. He explains this- instantaneous seizin, and considers the wife entitled to claim dower when her husband has had seizin, although but for an instant, if it was beneficially for his own use. That Ehoads was seized, and seized too beneficially for his own use, the instant that Johnston delivered the deed to him or his attorney, eannot be denied, I think, such a seizin would he sufficient to entitle his wife to dower ; and, if so, would give Noble’s judgment a preference to Dearthls mortgage, as I shall shew in the sequel.
    The case also which happened in Wales, and is mentioned in &ro. Eliz. 503, supports the idea that a seizin, though it be for a-merinstant, yet if accompanied by an interest, it will be sufficient to entitle the wife to dower. There, the father and son, were joint-tenants, and they were both hanged at the same moment, out of the same cart, but because it was thought that the son probably died a second or two after the father, as was supposed from his shaking his legs the last, his wife was entitled to dower. The wife only of the longest liver of two joint-tenants is entitled to dower, because the survivor alone can be said to be seized, and yet in this case the seizin could have been merely instantaneous, but it was accompanied by a real, substantial interest in the husband, and was therefore sufficient. This distinction reconciles all that is said in our English law Books on this-point.
    Now let us examine the case presented to the Court for decision, in connection with the decisions and opinions of the Courts and judges of Pennsylvania, in relation to the same subject. The lien of judgments has been extended in this state beyond the limits of the common law. A judgment is a lien on every kind of equitable interest in land, and every kind of right vested in the debtor at the time of the judgment. Carlchuff v. Anderson, 3 Binn. Rep. 589. Ely v. Beaumont, 5 Serg. & Rawle, 134. In the first case here referred to, the plaintiff Carkhuf claimed the land under a purchase at sheriff’s sale, upon a judgment against one-Craig, who had a bare presumptive right to the land at the time the judgment was obtained. He was a Connecticut claimant of the land, and under an act of the legislature of this state passed 4th April, 1799, was entitled to have it in fee, upon his paying a certain sum of money to the state, provided the Pennsylvania claimant of the same land should release it to the state, Craig did not pay this sum' of money or any part of it, but some time after the entry of the judgment under which the land was sold, he, by deed, conveyed or assigned his right to the land to Anderson, the defendant, who paid the money to the state, and obtained a patent in his'own name. ' Now, it must be admitted that the commonwealth, after the Pennsylvania claimant had released to her, had not only the legal title to the land, but the right to retain it until Craig, or those standing in his shoes, paid the money due to her for the land, and that the claim and lien of the state was paramount and prior' to that of the judgment-creditor; yet the Supreme Court decided that as soon as Anderson the assignee of Craig, paid the money due to the state for the land, that the lien of the judgment immediately attached upon the whole united, equitable and legal interest in Anderson, because Anderson was the assignee of Craig, the judgment debtor. Yet in point of fact and inlaw, when he obtained the patent from .the commonwealth, he was also the assignee of the commonwealth as to the lggal title, and all the right of the commonwealth, which was a right to money. But the equitable interest seems to have prevailed over the legal, and that as soon as the legal title was -united to the equitable, either in the person of the judgment debt- or, or his assignee, the lien of the judgment attached upon and embraced the whole. See also Richter v. Selin, 8 Serg. & Rawle, • 440-1. Justice Yeales, in Calhoun v. Snyder, 6 Binn. 147, in reasoning against the inconvenience and injustice thaUwould arise from judgments binding after purchased lands, says, “As to •the seller, he is not rendered secure as to his consideration money, by taking either a mortgage or a judgment. The estate must necessarily be for a moment in the buyer, before .he can execute a valid mortgage, or confess a judgment, which may become a lien on the property bought; but eo instanii that the conveyance by the seller is sealed and delivered, the lien of. the old judgment against the buyer attaches as the inevitable consequences of the doctrine contended for- There would be serious evils, &c. No other mode for the security of the vendor presents itself to me, •where the old judgments have been searched for, except a conveyance of the lands subject to the- payment of the consideration money, so that the estate cum oncre should vest in the vendee at the same moment.” So Justice Brackenridge, in the same case, page 157, says, “I cannot comprehend how they manage matters in England, as, on this principle, a case must be supposed sometimes to occur, where a vendee, against whom there is a judgment, takes a grant and gives a mortgage in security of payment; it must be that no man can purchase, against whom there is a judgment, and give such mortgage, for the judgment must intercept the mortgage and cut it out. There is, &c. In the order of time, as in.contemplation of law, there must be a priority. ' The táking the grant in the first instance, and then the conditional regranting, cannot be concurrent acts, or considered as such.” Here we have the opinions of those two .learned judges expressed, after full and mature deliberation, in direct opposition to the principles contained in the decisions of the Supreme Courts of New-York and Mas-sachustts. They say, in so many words, that if it were the law of Pennsylvania, that a judgment bound after purchased lands without execution, it would be impossible for the vendor, by any arrangement that he could make with the vendee, to make a deed of conveyance to the purchaser, and to secure by mortgage, judgment, or otherwise, the purchase money, or any part of it, by a lien upon the land, in preference to the prior judgment, unless it were, as Judge Yeates says, to convey the land expressly subject to the payment of the consideration money, or such part of it as might remain unpaid. Of consequence, if the purchaser were a married man at the time of his purchase, upon the same principle as the judgment, the inchoate right of the wife to dowqf would intervene eo instanti the deed of conveyance was made to the purchaser, and cut out the mortgage given to secure the purchase money, although given under the same agreement, and at the same time with the conveyance. Hence the decisions of the Supreme Court of Pennsylvania, as well as the opinions of the judges of that Court prove, that the instantaneous seizin of the husband, spoken of by Coke & Blaclcstone, as being insufficient to give the wife a right to dower, must mean a mere naked momentary seizin, unattended with any kind of interest. Such too is the opinion of Justice Thompsdn, as expressed by him in the case of Stoiov. Tifft, already cited, 15 Johns. 464, where he dissented from the opinion of the Court .Although it may be possible, upon the principle of the rule, which appears to be well established, which is “That all the several parts and ceremonies, necessary to complete a conveyance, shall be taken together, as one act; and operate from the substantial part by relation,” 5 Burrows Rep. 27S7, to sustain the decisions of the Supreme Courts of New-York ■and Massachusetts, yet they are made in cases very different from the one now presented to this Court for its decision. The deed made by Johnston to Rhoads had no connection in fact, or by agreement with the deed made by Rhoads to Dearth. They were different acts, under different arrangements, between different parties, and not parts of the same conveyance, as the rule expresses it. Suppose Dearth, instead of taking a deed of mortgage from Rhoads, had taken a judgment-bond to secure the repayment of the $1010, aqd entered it up in the prothonotary’s office, could it be pretended that such a judgment would have a preference, to the judgment in favor of Stevens for the use of Noble; I apprehend not. Yet it is well settled by a series of decisions of the Supreme Court of this state, that a mortgage is merely a security for the payment of the debt, and that the mortgagor is still to be considered, not only as seized of the land mortgaged, but the owner of it. That the mortgage upon the death of the mortgagee, passes to his personal representatives. His administrator may assign it, and the assignee maintain ejectment for the land. That a woman marrying a man who has mortgaged his real estate in fee-simple upon his dying is entitled to dower, Lessee of Simpson’V. Jim-mons, 1 Binn. 175. McCall v. Lenox, 9 Serg. & Rawle, 302. Wentz and wife v. Dehaven, 1 Serg. & Rawle, 312. So a mortgage may be released by parol, Martin v. Maivlin, 2 Burr. 979, which could not be, were it of the nature of land or real estate: it is a chose in action, a debt, and cannot be taken in execution as the property of the mortgagee. Jackson v. Willard, 4 Johnson Reps. 41. The mortgage, at most, can only give a right to the possession of the land, and a right tu receive the rent, issues, and profits in payment of the debt. Iti this respect it is different from a judgment, but in no other. They are both mere . securities for the payment of moneys, or some collateral act to be done,'&c. If so, upon what principle is it that Dearth shall have his mortgage preferred to Noble’s judgment? I see none, and I feel persuaded no case can be found to support his claim to the money arising from the sheriff’s sale ofi the property, in preference to Noble’s under the prior judgment in favour of Stevens for his use.

      JLustin and Ewing for defendant in error.

      Johnston having obtained a judgment in ejectment against Rhoads, to compel the payment of the purchase money within nine months, the money not having been paid within that period, the judgment became absolute, and Rhoads’ title re-vested in Johnston, before Noble obtained his judgment. There was, therefore, no title either legal or equitable in Rhoads, upon which the lien of that judgment could attach. The plaintiff has no equitable claim to the money, and clearly has no legal right to it.

      Johnstón being about to take the possession of the property, on the ha,b. fas. poss., to which he had then the legal and equitable title, agree to give up this title, upon being paid the balance of the original purchase money. Dearth pays the money, and takes a conveyance to himself, through Rhoads; and for the purpose of enabling him to redeem the property at a future period, the'parties agree that the deed from Rhoads to Dearth shall be considered a mortgage. If the deed had been made directly from Johnston to Dearth, there would have been no room to doubt but that it would have vested id him the whole title. Or if Johnston had actually taken possession of the house and lot, on his execution, and had then conveyed it directly or indirectly, as he did, to Dearth, no difficulty could have arisen about the title. Noble, therefore, having no legal right to recover in this case ; and having no superior equity, shall the mere form, by which the design of the parties was caz’ried into effect, prejudice the interest of any one of them.
    ' If the legal and equitable title was in Johnston at the time, the mere fact of the deed having been made to Rhoads will not better the plaintiff’s case ; there was no time for his lien to attach: the deed from Johnston to Rhoads, and from Rhoads to Dearth, was all the same transaction ; and mainly calculated for the benefit and security of Dearth. Stow v. Tiffit, 15 Johns. R. 458, and the cases there cited. Clark v. M-unro, 14 Mass. 351.
    ■ Equity will consider Rhoads in the light of a trustee for Dearth who paid the money. Jackson v. Sternbergh, 1 John. Ca. 153. McDougal v. Sitcher, 1 Johns. R. 45. Foote v. Colvin, 3 Johns. R. 216. Jackson v. Matsdorf, 11 Johns. R. 91. Jackson v. Mills, 13 Johns. R. 463. Jackson v. Morse, 16 Johns. R. 197. Moody v. Vandyke, 4 Binn. 31. 1 Haywood’s Rep 121. Chew v. Barnett, 11 Serg. & Rawle, 389,

    The defendant offers to convey the property to the plaintiff, upon his paying him the $1,010, without interest.

      Dawson in reply:
    Did not deny the position, that there was no time between the acts done, at fhe time of the execution of the deeds, for the lien to attach: but contended, that Noble’s judgment was a lien upon the equitable title which Rhoads had, and of which he never was divested, that the transaction between Rhoads, Johnson and Dearth, was the ordinary one of a vendee’s borrowing, to pay a balance of purchase money, so as to obtain the legal title, and then giving a mortgage to seeure the money borrowed. As to the title being absolute in Johnston, after the lapse of nine months from the judgment in ejectment, the parties themselves did not so consider it, or Johnston would not have yielded a right which he was so anxious to obtain.
   The opinion of the Court was delivered by

Smith, J.

The question, presented to this Court for their decision, in this case, is, whether the judgment of the 14th of December, 1819, in favour of Steven S. Stevens, to the use of James Noble, against Thomas Rhoads, for 700 dollars, ought to be paid, in preference to, or before the mortgage given by him to George Dearth, on the 10th of January, 1820. A majority of this Court, is of the opinion, that this case cannot be distinguished from the opinion of our courts, heretofore delivered on this subject. In Pennsylvania, it has been long settled, that the lien, created by judgments, extends beyond the limits of the common law, and that here, a judgment is a lien on every kind of equitable interest in land, — it is a lien, on every kind of right, vested in the debt- or at the time of the judgment, which can be sold, and on the venditioni exponas the sheriff sells and conveys all his right, whatever it may be.' So was the decision of this Court, in Carkhuff v. Anderson, 3 Binn. 4. This principle was afterwards followed up, by a very able Judge, when President of - the Court of Common Pleas of Bucks county, whose judgment on a writ of error, the Supreme Court of this state afterwards recognized and affirmed without hesitation, in the case of Ely v. Beaumont, 5 Serg. & Rawle, 124. And in the case of Richter v. Selin 8 Serg. & Rawle, 440, Judge Duncan, in delivering the opinion of this Court, repeats the same principle, when he says* a judgment binds every equitable interest which the debtor has ■at the time of the judgment. In the case before us, Rhoads had an equitable interest in the land on the 1st of April, 1816, when he made the first payment of 800 dollars to Johnston, according to his contract with him, under their written articles ; there was then at least, an inception of a title in him, such as a Court of Chancery would give effect to, and which might be bound ; and he afterwards, on the 10th of January, 1820, paid the whole of the purchase money, and received his deed from Johnston, and the equitable and legal title being thus completely united, the judgment attached and bound the united interest. But the eases in 4 Mass. Rep. 566, and 13 Mass. Rep. 51, have, in the course of the argument, been pressed upon our attention, as decisive of this case. In the first recited case, it appears, that a father conveyed land to his four sons, in fee simple, who by deed of the same date, mortgaged the land to the father, to secure the payment of a sum. of money, and also to maintain him for life, it was held, that the two deeds were parts of the same contract, and as taking effect at the same instant; — now a moment’s reflection, may teach us, that the case submitted to this Court, for its decision, is very different from the case cited. The deed from Johnston to Rhoads, and the mortgage from Rhoads to Dearth, were not signed and sealed on the same day, although delivered on the same day. The deed from Johnston to Rhoads was signed, sealed and acknowledged by Johnston and his wife, on the 2d of November, 1819; the 'deed from Rhoads/to Dearth, on the 10th of January, 1820. But they were not, as the deeds in the Massachusetts’ cases, executed under the same contract. The one from Johnston to Rhoads was executed, in pursuance of a contract between Johnston and Rhoads, entered into on the the 26th of September, 1815, of ' course long before the other, and to which contract, Dearth was no party, and of which, he, at the time of entering into it, had ■no knowledge; but the mortgage from Rhoads to Dearth was executed pursuant to an agreement made between Rhoads and Dearth, on the 10th of January, 1820, and to which, be it remembered, Johnston was no party; but he had constantly refused to make a deed to Dearth, or to any other than Rhoads' himself. It was therefore well observed, by the counsel for the plaintiff in error, that it cannot be said here, as the Court in Massachusetts said, that these two deeds are parts of one and the same contract, and between the same parties. And so in the other case in 13 Mass. Rep. 51, and in the case from 15 Johns. 458, in which it will he found, the deeds were at one and the same time, between the same parties, under one and the same agreement. To me, it is manifest, that Johnston delivered the deed he made to Rhoads, exclusively, under a contract between him and Rhoads, made many years before; — but that Rhoads made and delivered his deed to Dearth, under a contract exclusively between themselves, made on the 10th of January, 1820. The cases then, cited by the defendant in error, do not apply to this case, nor do they decide it. The case of Calhoun v. Snyder, in 6 Binn. 147, is supposed to militate against the decision we are about to make in this case. But it does not. We are not about to decide, that the judgment of Stevens to the use of Noble, is binding on after-purchased lands. The equitable interest of Rhoads in the land, which we decide to have been bound by this judgment, was acquired on the 1st of April, 1816, — the judgment was obtained on the 14th of December, 1819, this we think bound that interest ; indeed, in regard to that case, I say, with the late Judge Duncan, “The case has been decided, and the question is at rest, and I would not therefore be understood, as throwing out any thing, to undermine its authority.’5 The judgment of the Court of Common Pleas on the case stated, is therefore, to be reversed, and instead'thereof, judgment to be entered for the plaintiff, to recover of the defendant 850 dollars, with interest thereon, from the 1st of November, 1822, with costs of suit.

Huston, J.

On the fullest reflection I cannot agree with the majority of the Court.

Rhoads had purchased by articles of agreement, and had paid $800, and had an equitable title to the property for so much. This equitable interest was the subject of levy and sale, and on it the judgment of Stevens attached, and no more. The legal title, and the residue of equitable interest, remained in Johnston, and on this Stevens had no lien. Dearth paid the balance of the purchase money .to Johnston, and got the legal title. It matters not that it went through Rhoads — it was in him but an instant. Though the deed from Johnston to Rhoads had been executed some weeks, it was not delivered until 10th January, 1820; and that instant Rhoads executed a deed to Dearth, who had paid the money to Johnston for him. By a parol agreement or a deed of defeasance, this deed from Rhoads to Dearth was in fact a mortgage: this mortgage was sued, and Dearth purchased the land. He claims to stand in Johnston's place — to hold the legal title and balance of purchase money; and offers to convey to the other party, on being paid what was due to Johnston by Rhoads.

It is well settled, that the interest of Johnston could have been sold at private sale, or levied on and sold by the sheriff; and in either case the purchaser would have had all his rights, and been subject to the right of Rhoads.

Where property passes through a man, without his having paid for it, no right vests in him — it is never his in contemplation of law, 4 Mass. 566; 14 Mass. 351; 15 Johns. 458, and the cases there cited.

But suppose it did vest in him; it remained there but an instant, and was sold to Dearth. I never liked the case of Calhoun v. Snyder, in 6 Binn. 147, but it has been so long decided, so often recognized, and so much property is held under it, that we cannot disturb it; and by that case, the judgment of Stevens did not attach on that after-purchased interest, unless it was levied on while in Rhoads. It was not levied on, and the judgment of Stevens only bound, as before, the equitable interest of Rhoads, i. e. to the amount of $800, and never bound the remaining equity, nor the' legal title. Dearth has that legal title, and that residue of equitable interest.

As a question of sheer law, the owner of the legal title 'is safe, he cannot be disturbed. If the plaintiff asks equity, he must do equity. Suppose Dearth had never interfered; Johnston would have obtained possession, and held against Rhoads, or whoever purchased the interest of Rhoads, until the residue of the purchase money was paid. Why shall not Dearth, who paid Johnston all that was due, and has all the right which Johnston had, also hold till he is paid?

Could Rhoads ever have compelled Dearth to give up possession till he paid him? or could he have compelled Dearth to repay him what he had already paid? and why shall the man, who, with full knowledge of all the circumstances, has purchased the interest of Rhoads, do what Rhoads could not have done?

When a man, having good title, sells by articles of agreement, receives part of the money, and is ready and willing to make a good title to his vendee, on receiving the residue of the purchase money, it is not in the power of that vendee, or any person claiming through him, to rescind the contract — refuse to comply on hi's part, and compel the vendor to pay back what he has received, and keep the land ; and yet that is, in effect, what is asked in this case.

Judgment reversed, and judgment for the plaintiff.


text:
    BASIL BROWN against BASIL BRASHIER.
    IN ERROR.
    In an action of slander, it'is suffibient if the words be laid to have been spoken “in-Ocie presence of divers citizens,” although, it- be not laid to have been within their hearing.

    It is not good ground, upon which to reverse a judgment, upon an award of arbitrators, that the notice to one of the arbitrators of the time and place of meeting,. Was not served fifteen days before the day of meeting.
    Nor is it good ground to reverse such a judgment, that the award was made on a day to which the arbitrators had adjourned, and ofwhich the defendant-had no notice; if he waspresent at the choice of the arbitrators,.and the fixing of the day of meeting.
    Error to tlie Common Pleas of Fayette county.
    This was an action of slander, brought by Basil Brashier, the-defecdant in error, against Basil Brown; in which the plaintiff thus Set out his complaint, in his declaration: “These false, feigned and malicious, and scandalous words, following, of the said Basil Brashier, in the presence of divers citizens of the said commonwealth, falsely and maliciously did say speak and with a loud voice proclaim, to wit, &c.”
    On the 22d December, 1828, the plaintiff entered a rule to choose arbitrators on the 10th January following, when the parties, by ■their attorneys appeared, and chose H. Heaton, Roberts Barton and Robert Patterson as arbitrators, to meet on the 3d February. This order was not served upon H. Heaton and Roberts Barton until the S9th of January. On the 3d February, the day appointed, H. Heaton and Robert Patterson attended; the third arbitrator not attending, nor the defendant, they two made choice of Robert Alexander in -the room of Roberts Barton, and after being sworn, heard part of the evidence on that day, and adjourned to meet the next day j when they did meet, and after having heard the plaintiff’s attorney and some testimony, two of the arbitrators, H. Heaton and Robert Patterson, made an award against the defendant for $200, and costs. The following entry, without date, was made upon the docket, “defendant claims a stay of execution, he being a freeholder.”
    The defendant moved in the Court below to set aside the award-

      1. The award was made by those .who were not legally appointed arbitrators.

      2. Fifteen days’ notice, as the law requires, was not given by the pláinliff .to the arbitrators, previously to the day of meeting.
    3. The award was made on a day .of meeting of'.the arbitrators, ■of which the.defendant had no notice.
    The Court refused -.to.set aside the award, when -this writ of -error was sued out; and .the reasons for setting aside'the award, •were here assigned for error. And also,
    4. The words are not alledged to have been spoken in the .hearing of any pne.

      Kennedy for the plaintiff in error.

      Austin for defendant in error.
   .Judgment affirmed.


author: HustoN, J.

text:
    THOMAS BAVINGTON and others against JAMES CLARKE.
    .IN ERROR.
    'A judgment against 'a■ tenant in common, does not prevent-*'partition, at his stance against whom the judgment is, or that of any other of the tenants, partition is made, the lien of the judgment will attach to the part allotted the defendant in the judgment. So also in case of a mortgage on an undivided share of land. in-If
    .In such case, a partition maybe made without suit, if fairly done.
    "Where any one, even an infant,, does that which by law he is. compellable to do, such as making equal partition, he is bound.
    Where land is confirmed by thoOrphans’ Court, in a- proceeding on a writ .of partition and.valuation, to the.eldest son, such confirmation is not conclusive evidence that the title to the land is-thereby vested absolutely in him; it is competent, on the trial of an ejectment for the land,, for the other heirs to shew,'that the land was confirmed to him under an agreement between all the heirs, by which a trust was established. And this may be shewn even in an ejectment brought by one who purchased the laud at sheriff’s sale, as the property of the eldest son, upon a judgment obtained against him after the confirmation by the Orphans’ Courts leaving it. to the jury to determine, whether he is an innocent purchaser, without notice of such agreement.
    .If in sdch a case of confirmation by the Orphans’ Court, no recognizance were taken, it would vest no title in him to whom the land was confirmed.
    Writ of error 4o the Common Pleas of Washington county.
    This was an action of ejectment brought by James Clarice the defendant in error, against Thomas Bavington and others, heirsof John Bavington, deceased, for 400 acres of land. Both plaintiff •and defendants claimed under the title of John Bavington, deceas■ed. The plaintiff, to sustain the issue on his part, gave, in evidence. the title of John Bavington. — 1811, March 21st, the petition of Daniel Bavington eldest son of John Bavington, deceased, for a writ of partition and valuation, stating that the intestate left a widow and eleven children; which was awarded: — 31st October, 1811, inquest returned, that the land could not be divided, and it was valued at $4600: and on the same day, rule at the instance of Daniel, upon the other heirs, to shew cause why he should not take the land at the valuation: — 23d March, 1812, proof of the service of this rule on the other heirs was made: — 2Sth December, 1815, a rule was again taken upon the heirs, to shew cause why the land should not be confirmed to Daniel the eldest son: — 19th June, 1816, the land was confirmed to Daniel Bavington, upon his. entering into recognizance, with sufficient security, to pay over to the other heirs, their respective proportions according to law: — 21st June, 1816, “Daniel Bavington, Thomas Clarice, and Andrew Kerr tent jointly and severally in the sum of $9000, to be void on this condition; that Daniel Bavington pay over to the other heirs and representatives of the said John Bavington, deceased, their respective shares, and pi’oportional part of the said estate.” — 1819, April 12th, judgment John Defrance “against Daniel Bavington for @1600: — June Term 1820, Ji. fa. levied on a traot of land containing 120 acres with a grist mill, saw mill, &c.” which was condemned. In the list of liens exhibited for the condemnation of the property, were included the sums awarded to the different heirs of John Bavington, deceased, by arbitrators, in the case of Daniel Bavington v. Thomas Bavington and others, as will be hereafter referred to. December Term, 1821, ah ven. expos. “Property sold to James Clarice for $640.” December 31st, 1821, deed Bobert Officer sheriff, to James Clarke, “defendant’s interest being the two ninth parts, more or less.” March Term, 1822, fi. fa. for residue: “Levied on the undivided seven ninth parts of a tract of land in, &c„ containing 400 acres, more or less, adjoining, &c. being the residue of the land which was not sold, upon which John Bavington father of Daniel Bavington, lived and died;” which was condemned, &c. 5t.li July, 1825, this fi. fa. levy, and all subsequent proceedings were set aside. September Term, 1825, al.fi. fa. “Levied on all the right, title, interest and claim of the defendant, Daniel Bavington, in a certain tract of land in, &c., containing 400 acres more or less, subject to the previous sale to Daniel Baving-ton and subject to the claims of the heirs in the recognizance in the Orphans’ Court of 1811.” Inquisition held and condemned. Ven. expos, to December Term, 1825, which was returned, “sold to James Clarke for $700: to whom sheriff. Workman ánade a deed, 27th December, 1825.
    The defendants, to sustain their defence, produced and offered
      James Stevenson to prove, that at the time of holding the inquisition, under the writ issued by the Orphans’ Court, the inquest was.directed by Daniel Bavington, and his brethren not to attempt a division of the land into two or more parts, but to appraise and value it merely; that they had agreed to work together upon the land for some time, and afterwards Daniel and his brothers had agreed to make a division of the land between them, and to pay their sisters their proportions in money. And further, in connection with this proof, the defendants proposed to prove, that an agreement to this effect was reduced to writing and signed by Daniel and his brethren; and in pursuance thereof, an artist was employed in the fall of 1S14, to make partition according to the terms of the same: that such partition was made, by running ,and marking the lines thereof on the ground; and that Daniel took possession of the purpart and allotment of the land, which, by their agreement, fell to him; and his brothers their respective portions. In connection, also, with the submission of Daniel Bavington and his brothers and sisters of all matters in variance between them, embracing the decree of the Orphans’ Oourt, and their respective rights to the land in dispute, to the final award and arbitrament of David Shields, Daniel Moore, Thomas Mc-Giffin and Thomas McKennan, and the award of the arbitrators. The plaintiffs’ counsel objected to this testimony, and read the affidavits of Ruth Thomas, John Bavington, David Crawford, John Malone, Robert Patterson, John McDonald and Andrew Kerr, filed in the Orphans’ Court, to prove that objections were made to the making of the decree, and were passed upon by the Court. They also called Daniel Bavington a witness, who said, that the written agreement referred to by the defendants, and offered to be given in evidence, was read in court by Mr. Jennings, who was counsel for some of the heirs of John Bavington, deceased; but when, or whether at the time the Orphans’ Court decreed the land to him, witness cannot recollect. He further says, that Mr. Jennings was employed by Backhouse and Peterson, husbands of two of the daughters — was not employed by witness — understood by his pleading that Mr. Jennings was employed for all against him.

      Judge Mercer, being called, further stated, that he had an impression on his mind, that at the time the decree aforesaid of the Orphans’ Court was made, that all the matters and things proposed by the defendants to be given in evidence, were examined into and heard, but cannot be positive.
    The Court rejected the evidence of the agreement between the heirs, as offered to be proved by James Stevenson, to which the. defendants took an exception.

      The defendants then read the following submission •:and award, viz:
    Washington county, ss. In the Common Pleas, No. 21, September Term, 1819.

      Daniel Bavington y. Thomas and Henry Bavington, C. B. Peterson and wife Elizabeth late Bavington, Thomas Back-house and wife Sarah late Ba-gton, Ruth Bavington, inns, Thomas Burns and wife Cath-arine late Bavington, Nancy Hartford, Polly, John, and Charles Bavington.

    Amicable Action.
    In order to adjust, and finally settle the disputes of the parties, and the claims of each, either as they relate to real estate or personal accounts, it is hereby agreed and -stipulated, that all matters at variance between the parties, touching either real or personal estate .or accounts, shall be and are hereby submitted to the decision and determination of Thomas Me Gif in, Th. M. T. McKennan, David Shields and Daniel Moore, or ,a majority of them; the meeting to take place on the premises, -on Monday the 12th day of July next. This agreement, and the decision which may be made thereupon to be final and conclusive between the parties, May 12th, 1819.

      Parker Campbell, attorney for plaintiffs»

      P. Doddridge and J. Pentecost for defendants.
    July 13th, 1819. It is hereby further explained, that by the power above conferred, the parties meant, and now agree, that they will be bound by any decree the arbitrators may make; whether that be for a sale of the estate real or any part thereof, or for a division among spme of the members of the family, of the. real estate, and charging the parties to whom parts of the real •estate may be set-off and allotted; charging those who may receive parts of the real estate with certain sums, such as the -arbitrators may award in favor of those who may receive no part of .the real •estate.

      P. Doddridge & J. Pentecost, for defendants.

      Daniel Bavington.

    Award. — In pursuance of the annexed agreement, we have proceeded to the hearing of 'the parties, their-witnesses and counsel; and after due examination, we do award and decree as -follows:
    1. The plaintiff is not entitled in law or equity, to the property under the decree of the Orphans’ Court, under which he claims.
    2. He is not entitled in law or equity -under the agreement signed by the principal members of the heirs, and dated the 15th day of February, year unknown.
    3. We find that the plaintiff is entitled to the sum of $1000 for_extra labor and service, in relation to the estate, and for moneys paid by him on account of the estate of his deceased father; and we do adjudge and award, that the same be deducted from the aggregate valuation of the estate, to be in full of all claim and charges against the estate, and each member of the family.
    4. We find, that the tract of land whereupon the mill, mansion house and other improvements are erected, containing 435 acres, strict measure, may be divided into three shares, which is accordingly so done, in the following manner, to wit, 120 acres, strict measure, (as per diagram No. 1, hereto annexed,) whereupon the mill is erected, and the house where Daniel resides, to be one share, or portion; which is selected by, and awarded to Daniel, the oldest son, and is appraised at $6000; and we do hereby award and decree that the said Daniel Bavington pay his mother, Ruth Bavington, widow and relict of John Bavington, dec’d. in semi-annual instalments, $100 per year, for and during her natural life; to be recovered by distress, if not punctually paid; and to be and remain a lien and incumbrance upon his portion of the land and estate. That the said Daniel shall pay to Nancy Harsford, late Bavington, the sum of $924 81, in the following manner, to wit, $616 61 on or before the first day of April next, and the remaining $308 30 within thirty days from and after the death of Ruth Bavington, aforesaid. The said payment to be a lien until satisfaction shall be entered therefor of record. We further award and decree, that the said Daniel shall pay unto John Bavington $924 91: $616 61 on or before the 1st April, 1820, and the remaining $308 30 within thirty days from and after the death of Ruth Bavington, widow as aforesaid. The said payments to be a lien as aforesaid. We do further award and decree that the said Daniel shall pay the heirs and legal representatives of Margaret Wright, late Bavington, deceased, $924 91: $616 61 on or before the 1st April, 1820, and the remaining $308 30 within thirty days after the death of the said Ruth Bavington. The said payments to remain as a lien upon the property as aforesaid. We do further award and decree that the said Daniel shall pay unto C. B. Peterson and Elizabeth his wife, the sum of $375 43: $250 29 on or before the 1st April, 1820, and $125 14 within thirty days after the death of Ruth Bavington, widow as aforesaid. The said payments to operate as a lien on the land as aforesaid.
    5. We do find, that Daniel Bavington the plaintiff is entitled by purchase to the share of Charles Bavington, in the above described land, belonging to their father J. Bavington; and do award and decree the same to him.

      6. We do further award and decree, that the portion of the said tract of land which is embraced in survey No. 2, hereto annexed', containing 117 acres, strict measure,be set apart, and is adjudged to Henry Bavington; (Thomas Backhouse and Thomas Savings ton becoming securities for the payment of the dower and distrib-utary shares charged thereon,) and we do value the same at $2700,. and do decree, that the said Henry pay to Buth Bavington $54 per annum, during her natural life; to be paid semi-annually; recoverable by distress, and to remain a charge or lien upon the land. We do further award, that the said Ruth Bavington be-permitted to reside in the mansion house, if she thinks proper, during her natural life. And we do award and decree, that the said Henry shall pay to Thomas Backhouse and Sarah his wife, late Bavington, or the lawful heirs of the said Sarah $524 91: $616 61, on or before the first day of April, 1820’, and the remaining $308 30 within thirty days after the death of the said Ruth Bavington. And we do further award and decree, that the' said Henry pay unto Thomas Burns and wife Catharine, or the lawful heirs of the said Catharine, $850 18: $566 79 on or before the 1st April,. 1820, and $283 39 within thirty days after the death of the said Ruth Bavington. The said payments to remain as a lien or charge upon the said portion of the land.
    7. We further award and decree the remaining portion of the said land, which is embraced in survey No. 3. hereto annexed, containing 1SS acres strict measure, to Thomas Bavington; and do value the same at $2124; and direct that the said Thomas pay to Ruth Bavington, widow and relict as. aforesaid, the sum of $42 48 per annum, to be paid semi-annually, recoverable by distress, and to remain a lien or charge upon the said portion of land. And we do further award and decree, that the said Thomas pay unto his sister Polly $924 91: $616 61 on or before the 1st April 1820, and $308 30 within thirty days from and after the death of Ruth Bavington, widow as aforesaid. The said payments ten remain as a lien and charge upon the said portion of land, until they are satisfied. We do further award and decree, that the said Thomas pay unto C. B. Peterson and Elizabeth his wife, or the legal heirs of the said Elizabeth, $199 46: $132 99 on or before the 1st April, 1820, and $66 49 within thirty days after the death of the said Ruth Bavington. The said payments to remain a lien as aforesaid. We do further award and decree, that the said Thomas pay to Thomas Burns and wife Catharine, or the legal . heirs of the said Catharine, $74 42: $49 82 on or before the 1st April, 1820, and $24 90 within thirty days after the death of the said Ruth. The said payment to remain a lien as aforesaid.
    8. We do further award and decree unto C. B. Peterson and Elizabeth his wife, and to the legal heirs of the said Elizabeth,
      100 acres of ;land, more or less, belonging to the estate of John -.Bavingtan, deceased, situate in the state of Ohio, being lot No. 2, in the 1st Quarter, 9th Township, 8th '¿Range of the tract appropriated for satisfying warrants for military.services; which we value at $350; which together with the sums to be paid them by Daniel and Thomas, constitute their share of $924 91.
    9. The costs to be divided equally among all the heirs.
    10. We do further award and decree, that all the accounts between each and every member of the Bavington family have been adjusted and settled; and ’that no one member has any claim ■against any of the others, farther than mentioned in the above award or decree. Daniel is entitled to credit for any monies he has paid Mrs. Hartford, on account of her share in the estate since May, 1814. - In testimony whereof we have hereunto set our hands and seals this 14th day of .Tuly, 1819..

      Th. -MeGriffin, [Seal.]

      Daniel Moore, [Seal.]

      D. Shields, [Seal.]

      Th. M. T. McKennan, [Seal.]
    The defendants then gave some parol evidence to prove, that, at >ihe time of the sheriff’s sale, James Clarke knew'of this proceeding between the heirs; and then said, that he-was “buying a lawsuit."”
    The defendant’s counsel then asked the Court to charge the jury in favor of the defendant, on the following points,'viz.
    1. That the recognizance entered into by Daniel Bavington and the securities is defective, and therefore void.
    2. That as Daniel Bavington never entered into a validtrecog-nizance, the decree is therefore invalid, and gave no title.
    3. If this position is correct, that Daniel Bavington had only an individual interest; it was therefore competent for him and his brothers and sisters to make the arrangement for partition, notwithstanding the judgment had attached in the meantime.
    4. That said partition having been made, the judgment must ■attach to the share that had been assigned to Daniel, and more especially, as the judgment creditor, by his levy on that share, and -the description, recognized the partition which had been made, and also by giving in evidence to the jury of inquest, the list of liens, created by the award of the arbitrators appointed to •make the partition.
    5. That although the recognizance may not be so defective as to be void, yet Defrance, the judgment creditor, has, by his proceeding on his judgment, recognized the partition, by taking that part assigned to Daniel, and describing it as set forth by the ■■arbitrators, and by his exhibiting the award and the liens created to the Inquest.

      6. That the purchaser at sheriff’s sale being fully apprised of all this, as appears by his declaration, that the title was not good, all equity is taken away from him; and he is left in no better situation than the judgment creditor stood in.
    Which instruction the Court refused to give, but on all the points gave their opinion in favor of the plaintiff. To which opinion of the Court the defendant’s counsel excepted.
    A verdict and judgment were rendered for the plaintiff.
    The opinion of the Court, rejecting the parol evidence men, tioned in the bill of exception, and their charge to the jury were assigned for error.

      Kennedy for plaintiff in error.
    It did not certainly appear whether the agreement between the heirs of John Bavington had been passed upon by the Orphans’ Court, when ' they confirmed the land to Daniel; it should therefore have been submitted to the jury as a matter of fact, whether it had been or not. This agreement would have established the fact, that the land was awarded and confirmed to Daniel, in trust for himself and all the other heirs. The subsequent submission and award was a declaration of that trust, and a division of the trust estate. Nor was such division either an actual or a legal fraud upon the judgment creditor of Daniel Bavington; for it was a proceeding and result which any one of the heirs of John Bavington, dec’d. might have instituted and produced: and that which one may be compelled to do, by a legal proceeding, he may do amicably and by consent; and when done, all are bound by it. Coke Lit. 172. a. Zouch ex dem v. Persons, 3 Burrows, 1801.
    The lien of the judgment would attach to that part of the land which, by the award, was allotted to Daniel. Jackson v. Pierce, 10 John, R. 414.
    The judgment creditor recognized the validity of the partition between the heirs, by levying on the part allotted to Daniel; and by exhibiting to the inquest, which condemned'the land, the liens which were created by that amicable partition.

      McDonald for defendant in error.
    The adjudication to Daniel Bavington was made upon the fullest hearing before the Orphans’ Court, and after the date of the agreement between Daniel and the other heirs. Could this adjudication be avoided or affected by a prior agreement between the parties in interest, when that effect is to operate upon a stranger to the agreement, who purchased afterwards a title founded upon spch adjudication of a Court pf record, In contemplation of law, the Orphans’ Court must have been satisfied, that the agreement was rescinded: at all events it is enough to know that that Court had power to pass upon its effect, and they did so. Thompson v. Tolmie, 2 Peters’ U: S. Rep. 162, Per kens v. Fairfield, 11 Mass. 227.
    The decree was made to Daniel Bavington, upon his entering into a recognizance conditioned for the payment to the other heirs,'of their share: this he did, do.. The act of assembly requires no set form of words to make a recognizance: a mere acknowledgment of indebtedness to the other heirs, entered of record, and which is a lien upon the land, Is sufficient. That it should be taken in the name of the Commonwealth is not required j nor does the practice of our Courts generally sanction such a mode, Welsh v. Vanbebber, 4 Yeates, 559. ■

    This case is, in a few words, this: that there is a regular proceeding in the Orphans’ Court, by which the title to the land is vested absolutely in Daniel Bavington; after which a judgment is obtained against him, which is a lien upon the land- And it is Contended by the plaintiff in error, that the person thus vested with the legal title, subject to this, lien, has it in his power tó make an arrangement with his brothers and sisters, by which the judgment Creditor is deprived of his vested rights.
    As to the knowledge of Clarke it does not affect the question ; for it Was a knowledge that a transaction had occurred, without his participation, adverse td his rights, and by which he was not bound. His recognition, of the division would not destroy his rights ; any thing he did was for the benefit of the defendants, by levying on and selling a part only of the land.
   The opinion of the Court was delivered by

HustoN, J.

Although when land is purchased, the deed is made to one man, it may, nevertheless, be held in whole or in part in trust for another: so where the eldest son takes the land of an intestate in the Orphans’ Court at the appraisement, although by the record it may appear to be his, yet it may, as td certain parts of it, be in trust for others: — and this trust, when in writing, may be provedand to admit the proof, does not impugn the sanctity or validity of the decree of the Orphans’ Court: it is consistent with, and founded on the decree. It is also possible that one person who has purchased lands, and got his deed, and given bonds, may find himself entirely Unable to pay those bonds ; and the creditor vendor, knowing this, may make an entirely new contract, and take back the whole or part of the lands, and release the Whole or part of the debt. So where one of the children has taken land under a decree of the Orphans’ Court, and holds it, subject to the payment of what is due to his brothers and sisters, those brothers and sisters finding him unable to pay, may enter into an agreement, to release him from his present situation, may themselves agree to take land instead of money, and specify how much land they are to get: or it may be agreed to submit the whole matter to arbitrators, as in this case, with full power to rescind or vary, &c.; this also does not impugn the decree which gave the land to the- eldest son; but admitting that to be good and valid, it substitutes a new arrangement instead of it.

There is nothing contrary to morality or law in any of these two supposed cases. The eldest son a few years ago took lands at a price, which from decrease in value, ruined all who had been unfortunate enough to be the eldest sons, and to take the estate of their fathers at the appraised value. In some cases, the brothers and sisters pressed their demands, and never received half the amount: — bat in some cases, they forgave part, and in some made a new valuation and partition by consent: and where this was done,, it has justly been considered an act of brotherly kindness, honorable to the parties.

The only possible objection to an arrangement of this kind must come from some creditor,., who alleges injury to himself, from this-second arrangement.

'In the present case, the first agreement is material on this account; — for if it is fully proved that the eldest son never had aright to the whole, no one but an innocent purchaser from him, without notice of the trust, could pretend to hold the whole land in opposition to the trust. Daniel, by this, never owned the whole land: — he was,, at the very time the whole was.decreed to him, only, tenant in common with others; — and a judgment against him bound only his interest.

A judgment against a tenant in common does not prevent partition. The tenant against whom the judgment is, or any other of the tenants in common, may sue out a writ of partition, and proceed to have the share of each set out in severalty. The judgment in such case binds the part set out for the one against whom it is entered, and it binds no more. So also in case of a mortgage on an undivided share. 10 John. 414, 417, Jackson v. Pierce.

And so it is if partition is made without suit, provided it is fair. Where any person, even an infant, does that which by law he is compelled to do, that is, makes equal partition, he is bound. 3 Burrows, 1801.

Whether this wmne proceeding was known to Clarke, and how far his declarations, and the fact that he made his levy on the precise part allotted to Daniel, will make or not make him a purchaser with notice, we forbear to intimate. . The evidence of the defendant below was rejected: — we are of opinion that evidence is admissible; not to invalidate the proceedings of the Orphans’ Court, but to prove tlje rights and interests of the parties under those proceedingsr — or to prove that the rights acquired under them, were, by the- parties in interest, afterwards varied ; perhaps that the trust which existed at the time Daniel took, was af-terwards carried into effect.

Much was said as to the validity or invalidity of the recognizance ; perhaps it is not necessary to decide on that point. Certainly if there was no recognizance, the land never vested in Daniel. This being the very woyds and spirit of the act of assembly. If it bound the land, still if the second arrangement by the heirs among themselves "is valid, that second arrangement put an end to the recognizance: — and the validity of the arrangement by the arbitrators, will not depend or. the validity of the recognizance. If it .was valid, all the heirs could by consent make a new contract which discharged it: — if it was invalid the interest of the heirs was still in each of them, and they could submit the whole matter to the arbitrators.

If the fact of Daniel having the whole allotted to. him was known and acted on by Clarke, he must have known it was allotted subject to paying the other heirs, and that the amount due each of them would be preferred to any judgment he could obtain, or had obtained, except as to Daniel’s own portion perhaps!

It would be improper to go further.. When this testimony rejected, is received, the facts and circumstances may be very different from what they now appear to be, and it would only embarrass the cause to proceed to give an opinion on a case, existing in our imagination, and which may differ essentially from this when tried again.


author: Rogers, J.

text:
    DAVID PENROD against ABRAHAM MORRISON, administrator of JAMES MITCHELL.
    IN EU1Í0K.
    A being’ indebted to B, held certain choses in action, which he assigned to C without consideration, and took the'benefit of the insolvent law. Held: -That if this arrangement was made between A and C for the purpose of preventing fS from recovering his debt, that they are both liable in an action for a conspiracy at the suit of B.
    Such action will not abate upon the death of the plaintiff, but will survive to his personal representative.

      Quire. Will it survive, upon the death of the defendant, against his personal representative?
    EeRO.R to the Common Pleas of Somerset county.
    This was an action on the case for a conspiracy, brought by Janies Mitchell in his life time, against David Penrod, the plaintiff in error, and Alexander Morrison. Penrod alone made de-fence ; judgment was obtained against Morrison by default. -The plaintiff in his life-time had obtained three several verdicts and judgments against the defendants, for twelve, sixteen and eighteen hundred dollars ; all of which were reversed by the Supreme Court: after which he died: his death having been suggested upon the record, a scire facias was issued to the defendant, to shew cause whj his administrator, Abraham Morrison,-should not be substituted. To this writ the defendant demurred; on the ground, that the action was abated by the death of the plaintiff. The plaintiff joined in the demurrer, and the Court (Young president,) gave judgment against the defendant, quod respondeat ouster. This was the subject of the first bill of exception..
    The plaintiff’s declaration set out specially the following facts. That in 1815 Alexander Morrison entered into a contract with the Stoystown at\d Greensburg turnpike company, to make one mile of the road, at $15 50 a perch; subsequently he made a contract with James Mitchell to make a part of that mile of road at $13 50 a perch, who completed his contract; whereby Morrison became indebted to Mitchell in a sum of money, for which a suit was brought, and rule of reference entered by the plaintiff, in March 1SI9: arbitrators were chosen, who met several times,"from the 22d April until the 17th May, when they made a report in favour of the plaintiff, for $1,321 87, from which there was no appeal. Upon this judgment a fi. fa. was issued, which was returned nulla bona.

      The declaration of the plaintiff, then, concludes thus, “although in truth, -the saic] Alexander Morrison, at the time the said fi.fa. was in the «hands of the sheriff, had. sufficient effects wherewith to satisfy th'e same, which the said Alexander then and there refused to deliver or discover to the said sheriff, but fraudulently concealed the same. Yet the said David Penrod and Alexander Morrison, not being ignorant of the premises, but well knowing the same, the first day of August in the year last aforesaid, at the county aforesaid, secretly, falsely, fraudulently and corruptly did combine and conspire together, the said James Mitchell of the said thirteen hundred and twenty-one dollars and eighty-seven cents, so awarded to him as aforesaid, to defraud, in pursuance of the said false, corrupt, and fraudulent design, did corruptly combine and agree together that the said Alexander should assign and make over to him the said David, all the property and effects of the said Alexander, and that the said Alexander should surrender himself io the jail of said county, an,d there apply for and take the benefit of the acts of assembly made for the relief of poor and insolvent debtors, and in pursuance and execution of their said false, corrupt, and fraudulent design, he the said Alexander did on the day and year, last aforesaid, at the county aforesaid, without any consideration whatever, other than his corrupt design to defraud the said James, as aforesaid, assign, transfer and make over, to the said David, all his property and effects, to the amount of two thousand dollars, and Upwards; and thfe said David in pursuance and execution of the said false, corrupt and fraudulent design, so as aforesaid entered into by and between the said David and the said Alexander, without any consideration other than his design to defraud the Said James, as aforesaid, on the day and year last aforesaid, at the county aforesaid,- did take and accept of the said assignment and transfer of property as aforesaid, so made by the said Alexander to the said David, as aforesaid. And in further execution of the said conspiracy, so falsely, fraudulently and corruptly entered into by the said David and Alexander as aforesaid, he the said Alexander afterwards and before the institution of this suit, to defraud the said James of the money so awarded to him as aforesaid, did corruptly and fraudulently surrender himself to the jail of said county, and the said Alexander, in further execution of said fraudulent design so as aforesaid formed with the said David, afterwards and before the institution of this suit, did falsely and fraudulently procure himself to be discharged from his said imprisonment by virtue of the act of assembly aforesaid, made for the relief of poor and insolvent debtors, under the false and fraudulent pretence that he was unable to support himself in prison. By reason of which said false, corrupt, and fraudulent combination and conspiracy, so as aforesaid entered into, by and between the said Alexander and David, with design as aforesaid, to defraud the said James out of his debt aforesaid, so as aforesaid due a9id payable to .the said James by the said Alexander, the said James saith he hath been prevented from recovering his said debt, and that he is injured and hath suffered damage three thousand dollars, and therefore he .brings suit, &c.
    To this declaration the defendant plead not guilty. Issue.
    The plaintiff having given in evidence the record of the judgment which he obtained against Morrison, proved, that after the road had been completed according to contract, the turnpike company being unable to pay, Morrison procured their certificates of the amount due to him. He also gave in evidence the rceord of a judgment before a justice of the peace, Thomas Howard, for the use of David Penrod against Alexander Morrison, for $13 28, obtained 26th May, 1819, and an execution which issued thereon, upon which Morrison was imprisoned, and subsequently was released by taking the benefit of the insolvent law. He also gave in evidence by the constable, that at the time he took Morrison to prison he had a large roll of “turnpike money.” Two or three turnpike certificates were given in evidence, one-for $600, the other for $287 50, with an assignment indorsed thereon, dated ,22d'April, 1819, Alexander Morrison to David Pen-rod; these were produced by the defendant’s counsel on a notice of the plaintiff. Some parol evidence of the declarations of Pen-1 rod and Morrison., at different times, was given, in order to .make out the case.
    As the trial progressed, the defendant objected to all the evidence which the plaintiff offered, which objections were overruled, and exceptions taken.. .It is not necessary to state the evidence more particularly, as the whole cause gave rise .to these two questions:—
    1st. Can the action be supported at all, on the evidence stated?
    2d. Does the action survive to the personal representatives of the plaintiff?
    A verdict and judgment were rendered in the Court below for $1,656 22, which the defendant removed here by writ of error, and thesame questions were argued by

      A. W. Foster for plaintiff in error.
    Taking it for granted that the plaintiff’s proof made out the case laid in the declaration, it amounted to this, that Morrison bad assigned to Penrod the certificate which he had obtained from the turnpike company, without any consideration. There are several reasons why this will not support an action against Penrod. Those certificates were not the subject of a levy, nor could the plaintiff have obtained any advantage from Morrison’s retaining them in his own hands, by the process which he issued upon his judgment. Nor does it appear that those certificates were of any value whatever, either to Penrod or Morrison, or that they would have been of any value to Mitchell, if he had obtained them by any means. No evidence was given that thqy had been paid to Penrod, or that the turnpike company was at all able to pay them. This evidence was essential to th.e plaintiff’s case.
    At common law, an executor or administrator represented nothing but the personal property and contracts of his testator or intestate. So it was until the statute of 4 Edward 3, c. 7. It Was only by an equitable construction of that statute, that an action on the ease survived, because it was ex contractu. It was construed to extend to an action against a sheriff for an escape ; but this was because a previous statute gave an action of debt as the remedy. The cause of action in this case is not embraced within any of these reasons. It is purely an action for a conspiracy, an action of tort, in which the damages recoverable are not measured by any contract between the parties to it. It does not therefore survive to the personal representative. 1 Saun. 216, in note. Sommer v. Wilt, 4 Serg.' & Eawle, 28. Shoemaker v. Keely, 2 Pall. 213. Latimer v. Simmons, 13 Serg. & Rawle, 183.

      Williams for defendant in error.
    The form of action which the plaintiff has adopted is the only one which he could sustain: and by the equitable construction of the slat. 4 Edio. 3, c. 7. Robt. Dig. 248, it survives to the personal representative. The case cited by the plaintiff in error in 1 Saun. is that of the death of the defendant; but the statute provides for the death of the plaintiff.
    When the party doing the wrong receives a pecuniary benefit, the action will survive to the executors of the person injured, and this distinction is discoverable from the decisions upon the cases which do not survive. Williams v. Cary, 4 Mod. 403. 1 Chit. Plead. 36. Hambly v. Trott, Cowper, 374. Rogers v. Sim. mons, 13 Serg. & Rawle. 183. Every creditor has such a claim upon the property of his debtor, as will, under certain circumstances, authorize a pursuit of that property. Such as a fraudulent transfer of it to a relation.
    That the action will lie. 1 L. Raym. 973, quarto. ed. Kite v. Boyd, 18 Serg. & Rawle, 300.
   The opinion of the Court was delivered by

Rogers, J.

The plaintiff in error alleges, that' no suit can-Be sustained, because Mitchell had not at the time of the transfer any specific lien on the property. This was an action on the case for a conspiracy, by which the plaintiff has been prevented .from recovering his debt. Morrison being indebted to Mitchell, suit was commenced, which was in a course'of prosecution to judgment and execution. Although Mitchell could not collect his debt, by fi'.fa. and’ levy, as a chose ,in action is not the subject ef execution;' yet satisfaction-might have been attained, by compelling MorrisonXo assign for the benefit of his creditors. There-was at least a? chance- of satisfaction, of which he ought not to be deprived by any fraudulent combination with his de'btors. The-argument of the plaintiff in error would be the same, if Mitchell had, at the time of transfer, an execution in the hands of the sheriff; inasmuch-as- it would not have been a lien on a chose in action. It would be monstrous to say, that at the moment when he was about to attain the fruits of his judgment, the property of the defendant could be withdrawn in-this manner; from the reach of his creditors. The absurdity, and injustice of the doctrine would1 be too- glaring to admit of argument. No authority has-been-cited5 to--sustain the distinction, and none such, I am sure,.’ can be produced. It is unnecessary to throw temptations in the way of fraudulent debtors.

It was a principle of t-he- common law, that if an injury was done to the person or property of another, for which damages only could be-recovered in satisfaction, the action died with the person to whom or by whom the wrong was done. As this was calculated to do injustice, we find the rule gradually relaxed'. For-where the goods remained in specie, in the hands of the wrong doer, or his executors, it was decided, that replevin or detinue would liej for or against the executor, to recover back the specific goods, Sir William Jones, 173, 174. And if the goods were consumed, it was ruled that an’action for money had, and received, would lie to recover the value, Cow. 377. These decisions proceed on the principle, that here, there was not only an injury to the plaintiff, but a benefit to the wrong-doer, who either had the-goods-in specie, or had used them, or they had gone into the possession of his executors, and swelled the amount of assets-. This was a departure from the ancient rule, the propriety and justice of which, cannot be questioned. These cases were decided-at common law, independently of the statute of the 4 Edward, 3, c. 7, which has made further alteration in the rule, actio per-sonalis moritur cum persona. The statute de bonis asportatis, which recites, that in times past, executors have not had actions for a trespass done to their testal ors, as of the goods and chattels of the said testators, carried away in the life ; and so as such trespassers have remained - unpunished, enacts, that the executor, in ■such eases, shall have an action against the trespassers; and recover their damages in like manner as they whose executors they be, should have bad, if they were living. This statute, which is further extended to executors of executors, by the 25 Edward, 3, c. 5, and to administrators, by the 31 Edward, 3. c. 11, is in full force in Pennsylvania. These statutes being remedial, have ¿lways been construed liberally. They have been extended to cases which, although not within the words, were thought to be within the mischief intended to be redressed. In giving them a -construction, the Courts have not looked to the form of action, but to the nature of the injury. Whatever remedy the testator -may have had, the same is given to the executors; whether it be '.trespass, trover, or case, is immaterial. Substance, not form, has been regarded. The statute says, they shall recover the damages in like manner as they whose exeeutors they be. Upon a careful review of all the authorities, it will be found, that the executors of a deceased plaintiff will have the same remedy as the tes.tator himself, when the wrong has inured to the benefit of the defendant, or has increased the assets in the hands of his executors. Whether the same rule will apply when the defendant dies, it is unnecessary to decide: although this, which must be admitted to be just and reasonable, would seem to have been the opinion of the Court, in Keite v. Boyd, 16 Serg. & Rawle, 300. I speak, of course, of wrongs done to personal property; not to the person, ,or to the freehold of the testator. And this, we conceive, was the evident intent of the statute, de bonis asportaiis. Thus an executor may have an action of trespass or trover, 5 Rep. 27, Russel’s case. Sir William Jones, 174. An action for a false return, 4 Mod. 403, Williams v. Carey. For an escape, 2 Lord Raym. 973, Berwick v. Andrews. Debt on a judgment against -executors suggesting a devastavit, 1 Salk. 314. Action for removing goods taken in execution before the testator (the landlord) ■was paid a year’s rent, 1 Stra. 212, Polgrave v. Windham, and other actions of a like kind; for injuries done to the personal estate of the testator in his life time. In some of the cases cited, the remedy is given to the executor, merely because the personal property is made less beneficial to the executor, and this without regard to the form of action. Much more then will he be entitled to relief, when the wrong has been, not only injurious to the plaintiff, but beneficial to the defendant. It .cannot be that the death of the plaintiff should enable the wrong-doer or his §xecu--tors to enjoy the fruits of liis injustice. • We have seen that the .form of the action matters not; what then is the nature of the'injury of which the plaintiff complains? The substance of the case is, that, by the fraudulent conduct of the defendant and his son-in-Jaw, Morrison, the plaintiff has been prevented from recovering a just debt. This is doubtless an injury to the plaintiff, for which the law should provide some remedy. It moreover appears, that the debtor and his fraudulent transferee, have retained in their possession the turnpike orders, or checks, by which they are benefited, and the plaintiff injured to the amount of their value. It is not an injury to his person or freehold, but to personal propertj?. and therefore within the equity of the statute. Most of the cases cited at the bar, were, when the defendant dies, which are notem-braced by the statute, 4 Edward 3,

Judgment affirmed,