text:
    Lyons versus Divelbis.
    1. The statute of 3 & 4 Anne, ch. IX., distinguishes between the endorsement and assignment of a negotiable note, and authorizes the holder by either mode of transfer to bring suit in his own name against the maker or endorser. No action is given by it against the assignor.

    2. An assignment of a promissory note transfers to the holder the rights of the assignor; the assignor being responsible for nothing more than the genuineness of the claim. ;
    3. On an endorsement on an overdue negotiable note to the effect, “ I assign the above note to J. D.,” there is no resort for indemnity against the insolvency of the maker.
    4. Though the words “ without recourse” in connection with such an assignment were stricken out, the holder being unwilling to take the note otherwise, the assignor saying “ he did not know it would make any difference:" Held, that the erasure, under such circumstances, did not amount to a contract of guaranty.
    5. When the assignment of the overdue note was made, it was agreed that the assignee was to take iron from the drawer to the amount of the note, and to go after the iron the next day, and if it were not received, the note was to be returned to the assignor immediately: It was Held, that as the assignee did not conform to the terms of the agreement, he was not entitled to recover from the assignor.
    6. The transfer of the said note by the assignee three days after he received it—the commencement of a suit by the then holder against the drawers about three months afterwards—the recovery of judgment and execution returned “no property found,” did not amount to a compliance with the said agreement.
    7. It appearing by the record that the 'verdict was entered for the plaintiff proforma, with leave to the Court to enter judgment for the defendant, non obstante veredicto: Held, that the statement of the judge, in his opinion after-wards filed, that certain matters were “ taken into view and passed upon at the trial,” is not receivable to contradict it.
    8. The brief statement,?'/), the judge’s notes, of thequest-ionreserved, was also ineffectual to contradict the record.
    9. The reservation of a point without a statement of the facts upon which the question arises, and without stating the judgment to he given upon their solution, is irregular.
    Error to the Common Pleas of Fayette county.

    This was an appeal from the judgment of a justice of the peace, in a suit brought by Johnson Divelbis v. John A. Lyons, on an alleged guaranty of a note, as follows:
    “ Monongalia Iron Works, 28 Nov., 1846
    “ Six months after date the Monongalia Iron Co. promise to pay to the order of Mr. John A. Lyons, forty-nine dollars and fifty-six cents.
    “ For the Company, E. T. Ellicott.”
    Endorsements thereon viz:

      “Sep. 23, ’47.—I assign the above note to Johnson Divelbis, without recourse. John A. Lyons.”
    “ Sep. 26, ’47.—I assign the above note to John Hagen.
    “Johnson Divelbis.”
    The first plea entered was non assumpsit.

    It was stated in the paper-book, on part of the plaintiff in error, that, on the trial, the plaintiff proved the assignment by the defendant, and offered the record of a suit, brought on 11th December, 1847, in Virginia, on the said note, for the use of John Hagen, against the Monongalia Iron Co. : judgment obtained on 28th June, 1848, execution returned “no property found.”
    It appeared that the words without recourse had been written after the name of Johnson Divelbis in the assignment, but had been stricken out.
    It was alleged on .part of the plaintiff in error, the defendant below, that the defendant, on the trial, showed that, at the time of the assignment, the plaintiff knew that the Monongalia Iron Works were not paying money, but were delivering iron for their debts, presented ; that the iron would have suited Divelbis as well as the money; that he was to send on the next day for the iron, and that if he did not get the iron he was to return the note; that, instead of sending for the iron, on the third day after he got the note he assigned it to John Hagen, who afterwards brought suit against the company. Also, that the company, at the time of the assignment of the note, and for some months afterwards, delivered iron for all claims against them presented.
    It was stated on the same paper-book, that, under such state of facts, it was contended that the plaintiff was bound to return the note if not paid; and that even in the absence of any such agreement, Lyons, the defendant in the suit, was entitled to notice that the company had failed to pay, upon reasonable demand having been made.
    On part of the plaintiff in the suit, the deposition of M. S. Miller was read, who said that the words “without recourse” were stricken out by Lyons, because plaintiff would not receive the note otherwise.
    Alexander Patten was examined on part of the plaintiff.—He said that Divelbis handed the note to him, and asked what he thought of the assignment,—Lyons’s name was then to the assignment. Divelbis said, in presence of Lyons, “ I made him fix it, for I would not have it without recourse back. Lyons said he did not know it would make any difference.”

      On part of .defendants, testimony was given that Divelbis, before he got the note, knew that the Ellicotts were not paying money, but were delivering iron for claims against them.

      J. Tedrick was then examined, and testified that he was present when Divelbis traded a wagon to Lyons for the note; that Divelbis said he would go the next day and get the iron; and that Lyons told him if he did not get the iron, he was to return the note immediately.
    Another witness, Llewellyn, testified that Divelbis told him he was going to'take the amount of the note in-iron.
    The verdict was entered pro forma, with leave, &e., and judgment was subsequently entered for the plaintiff. The opinion of Gilmore, J., afterwards delivered, was as follows:
    “ The question reserved for the consideration of the Court was, whether it was necessary that the plaintiff should show reasonable demand, and notice to the defendant.” ********
    “ It is now settled by a recent case, Patterson v. Todd & Lemon, 6 Harris 426, that the endorser of a negotiable note overdue is not liable, unless the note be presented to the drawer for payment within a reasonable time after its transfer, and if not paid, notice of non-payment given to the endorser. The undertaking of the endorser is, that ,if -the drawer does not pay on demand, made in proper time,” and notice of this he given, he will pay. “ The nature of the undertaking in this respect is not altered, although the note is endorsed when overdue. It is not an independent original undertaking, as some suppose, hut subject to the above stated conditions. But this is an assignment, and if the assignor is liable at all, it must be on an undertaking in the nature of a guaranty; in which it is only necessary to show either that an attempt had been made to collect it, or that through the insolvency of the drawer it could not be realized. These were matters which were all taken into view, and passed upon at the trial. The Court therefore direct judgment to be entered on the verdict for plaintiff on payment of jury fee.”
    It was stated on the record as follows :
    “March 14, 1853.—Jury sworn. Defendant adds the pleas of payment, and payment with leave, &e.: tried, and verdict for plaintiff for $66.74 cents, pro forma, with leave to the Court to enter judgment for the defendant, non obstante. June 18, 1853, argued. June 23, 1853, opinion of the Court filed. Judgment for plaintiff.”

      On the judge’s notes it was stated, viz.: “ The question made by defendant, that defendant was entitled to notice that the drawer failed to pay—reserved, and verdict, in case it should be.for plaintiff, to be entered pro forma, with leave, &c.”
    It was assigned for error, that the.Court erred in deciding that, this was an assignment—that it was not governed by the same principios of law which apply to endorsements. 2. In stating that this was a case of guaranty, and that an attempt to collect the money several months after the assignment was sufficient to entitle the plaintiff to hold the defendant. 3. In directing judgment to be entered for the plaintiff.

      Patterson, for plaintiff in error.
    It was said that if this were the case of an endorsement, the endorsee could not recover as. it was not shown that the note was presented to the drawer for payment and notice given of its dishonor. But in the case of a guaranty, the rule is not equally strict, and when there has been no presentment or notice of dishonor, the liability of the guarantor will depend upon the question as to whether the want of notice occasioned him loss: Story on Pro. Notes, sec. 460; 1 Jones 460. The liability of a guarantor depends upon the evidence in the case. Tlie Court charged that in order to recover, it was necessary to show only that an attempt had been made to collect the note, or that by reason of the insolvency of the maker, it could not be collected. But it was contended that in this case the testimony was, that the endorsee was to take iron for the note, and. that it was to have been presented on the next day, and, if not honored, the note was to be returned. Even though there had been no agreement to return the note, if there had not been due diligence to secure the claim, and give notice if it were not met, and by this means the claim was lost, the defendant was not liable even if he were a guarantor. It was said that in this case the defendant was not a guarantor, as he had not entered into a covenant to be surety for the payment of the claim.

      J. B. and A. Howell, for defendant in error.
    It was contended that this was not a mere endorsement, nor simply an assignment of the note; but that the defendant, when he assigned, agreed to guaranty its payment, and that this appeared from the testimony in the case. The contract of endorsement may be converted by parol evidence into an absolute and unconditional engagement to pay; 6 Harris 426, Patterson v. Todd & Lemon; and the contract of assignment may, in the same way, be shown to be an agreement to guaranty the payment of the note. A guarantor is bound to inquire and see that the note is paid. It is not necessary for the holder to give him notice of its non-payment: 9 Ser. & R. 199; 4 Watts 418; 1 Barr 501. It was contended that the jury had determined from the testimony and from all the facts of the case the liability of the defendant, and their decision should not be reviewed in this Court. It was further said that the charge to the jury is not here—that on the paper-book is what was said by the Court in entering judgment. It was added: “After the jury were charged and had retired, the question was made, ‘ whether it was necessary that plaintiff should show reasonable demand and notice to the defendant.’ That question was reserved for the consideration of the Court.” It was said that it was on the decision of the Court below upon- such reserved question that this Court have to pass, and upon no other.
   The opinion of the Court was delivered by

Lewis, J.

Every endorsement of a promissory note includes in it an assignment, but an assignment is not necessarily an endorsement. The statute of 3 & 4 Anne, chapter ix., distinguishes between the two methods of transfer, when it authorizes the holder, whether by endorsement or assignment, to bring an action in his own name against the maker, and endorser. No action is given by the statute against the assignor. An endorsement is an authority to the holder to write over the signature an order upon the maker, "in the nature of a bill of exchange. It is a commercial transaction, and the law merchant fixes the measure of liability, as in bills of exchange. An assignment of a chose in action is in strictness unknown to the common law. It is, however, recognised in equity, and transfers to the holder the rights of .the assignor, at a price presumed to be no more than equal to the value of the claim against the maker, taking into consideration his character for punctuality, and his ability to pay. On such a transfer the assignor is responsible for nothing but the genuineness of the claim. The instrument on which this action was brought, is a transfer of the description last mentioned, written upon a note overdue at the time. On this there is no resort for indemnity against the insolvency of the maker.

It appears, by the evidence, that the assignment was written, in the first place, with the words “ without recourse” embodied in it; "but these words were afterwards erased by consent of both parties, because the assignee was unwilling to take it in that form, and the assignor believed that it “made no difference” whether the words were erased or not. The erasure, under such circumstances, is not a contract of guaranty." If that had been the intention of the parties, it was easy for them to express it. The omission to do so shows that each party relied either upon the legal effect of the assignment, or upon some collateral agreement, susceptible of proof independent of it. The evidence that the note was taken under a special agreement that Divelbis was to “ go the next day to get iron for it, and if he did not get the iron, that'he was to return the note immediately,” explains the reason for erasing the words “without recourse,” and shows that in doing so, the parties only intended to avoid introducing into the writing anything inconsistent with their parol contract. As there is no evidence of any other contract of guaranty than that stated in the testimony of Tedrick and Llewellyn, and as the plaintiff below did not conform to the terms of that agreement, he was not entitled to recover. The transfer of the note by Divelbis to. John Hagen three days after the former received it—the commencement of a suit against the maker on the 11th December, 1847, nearly three months after-wards—the recovery of a judgment nine months after the transfer, and an execution returned “ no property found,” do not amount to a compliance- with the agreement to call on the maker for iron the next day after the note was received, and if the iron was not obtained, to return the note immediately.

It appears by the record that the verdict was entered “ for the plaintiff pro forma, with leave to the Court to enter judgment for the defendant non obstante veredicto.” In this state of the record the judge’s statement, in his opinion afterwards filed, that certain matters were “taken into view and passed upon at the trial,” cannot be received to contradict it. If the verdict was entered pro forma, we do not see what power the jury were permitted to exercise over the case. It is plain, from this entry, that they exercised none; and the imperfect statement, of the question reserved, taken from the judge’s notes, is equally ineffectual in contradicting the record. The reservation of a point without a statement of the facts upon which the question arises, and without stating the judgment to be given upon its solution, is irregular and dangerous to the rights of the parties. In this case, judging from the entry on the record, the parties appear to have dispensed with the services of the jury, and to have submitted the whole case to the judgment of the Court upon the evidence. Upon that evidence, as stated in the paper-book, we are of opinion that the defendant below was entitled to the verdict and judgment. Under the reservation made at the trial, it is therefore ordered that the judgment of the Court below be reyersed, and that judgment be entered for the plaintiff in error, non obstante veredicto, with costs.

Judgment accordingly.


source: Caselaw Access Project

author: Woodward, J.

license: Public Domain

text:
    Springer versus Lewis.
    1. The 8th section of the Act of 23d April, 1846, exempting a horse, harness, and plough from execution “ -when owned by any person actually engaged in the science of agriculture,” is repealed by the Acf of 9th April, 1849, only as to debts contracted after the 4th July, 1849.
    2. The time to which the inquiry as to the debtor’s occupation relates, is the time of the levy of the execution.
    3. A man who keeps a tavern and hoarding-house, and works at his trade as a tailor in the winter, may also he a person “ actually engaged in the science of agriculture,” within the meaning of the statute.
    4. A person is “ actually engaged in the science of agriculture” when he derivos the support of himself and family, in whole, or. in part, from t-he tillage of fields. He must cultivate something more than a garden, though it may be much less than a farm.
    5. A tenant whose lease expired in the spring of 1851, and who declared his intention in the winter before to remove to the west that spring, and did remove, was entitled to the exemption of the Act during the winter of 1850-1, and until his lease expired.
    Error to the Common Pleas of Fayette county.

    This was an action of trespass by Samuel T. Lewis v. Calvin Springer. The action was brought against the defendant, who was a constable, for levying upon and selling a horse and set of harness, bridle, collar, and chain, then the property of Samuel Lewis. Lewis died, and Alexander McClean, the administrator of his estate, was substituted. It was claimed, on the part of the plaintiff, that the horse was exempt from levy and sale under the 8th section of the Act of 22d April, 1846, which provides as follows:
    “ The following property, in addition to that already exempt from levy and sale by virtue of any execution or distress for rent, shall, when owned by any person actually engaged in the science of agriculture, in like manner be exempt from levy and sale, viz.: one horse, mare, or gelding, not exceeding in value fifty dollars; one set of horse gears, and one plough, or in lieu thereof, one yoke of oxen, with yoke and chain, and one plough, at the option of defendant.”
    The horse was levied on under an execution issued 21st January, 1851, returnable on 10th February.
    On the trial, it appeared that at the time of the levy, Lewis had hut one horse. That in 1850 and 1851, he lived at the Fayette Springs, which he had leased, and where he kept a boarding-house. It was testified, on fart of the flaintiff., that there were 35 acres in one field, and about the Springs 8 to 10 acres—that he farmed most of the land; raised buckwheat, potatoes, corn, oats, and sowed some wheat. He went to Iowa in the spring of 1851.
    Another witness testified that he lived with Lewis in 1850. He farmed some—had five acres of buckwheat and one acre of potatoes—6 or 7 acres of wheat in the fall before — a small patch of corn, and one horse. The witness left him in November, 1850.
    On part of the defendant it was shown that in 1849 Lewis was assessed as an inn-keeper, for two horses, value, $60. In 1850 he was assessed as a tailor—and one horse.
    It was testified that Lewis kept a boarding-house at Fayette Springs, but left in the spring of 1851. In the winter he said he was going away in the spring. Part of the time he worked at tailoring.
    By another witness it was testified, that Lewis kept a boardinghouse at the Springs—when the season was over he tailored. He farmed some: had a small patch of potatoes and a few rows of corn; four or five acres of buckwheat; some wheat put in in the fall of 1849. * * * His principal business was to keep tavern.
    Another witness testified that he never knew Lewis to follow any other business but tavernkeeping and tailoring, after he went to the Springs. That he told the witness, in the fall of 1850, that he was going to the west; that he would go in the spring. He went in May, 1851.
    Gilmore, President Judge, charged the jury that a person could be a farmer and an innkeeper at the same time. That, having declared his intention to leave the country in the fall, and making his arrangements accordingly, and actually going in the spring, at the time appointed, did not, in the mean time, deprive him of the character of farmer, nor did he cease during this period to be the object of exemption under the provisoes of the Act of 22d April, 1846; and he refused to charge the jury, that if all the evidence was believed, the plaintiff was not entitled to recover.
    Yerdict for plaintiff for $52; and, April 8, 1853, judgment.
    It was assigned for error that the Court erred in charging that Lewis, having declared his intention in the fall to leave the country, and making his arrangements, and going in the spring, did not deprive him of the character 'of farmer, &c.; 2. In refusing to charge that the plaintiff was not entitled to recover; 3. In the construction given to the Act of 1846; and 4. In- not submitting it to the jury to say whether, from the evidence, the plaintiff’s intestate at the time of the levy and sale was actually engaged in the science of agriculture.
    Howell, for plaintiff in error.
    Kaine, for defendant in error.
   The opinion of the Court was delivered by

Woodward, J.

The question here is, whether, under the circumstances in proof, the horse and harness of Samuel Lewis, levied on at the suit of his creditor, B. E. Hellen, about the last of January, 1851, were exempt from levy and sale by virtue of the 8th-section of the Act of Assembly of 22d April, 1846, which exempts, inter alia, one horse, harness, and plough, “ when owned by any person actually engaged in-the science of agriculture.” Though this section was repealed by the Act of 9th April, 1849, yet the 6th section of the repealing law applies its provisions only to debts contracted on and after the 4th of July, 1849, so that as to debts contracted before that date the Act of 1846 seems to be still in force.

Whether Lewis’s debt was contracted before or after- that date, and when the judgment was obtained against him, are matters concerning which the paper-book is studiously silent; but as the Court ruled the case upon the Act of 1846, without taking notice of its repeal, we shall presume that the judgment and execution against Lewis were founded on a debt contracted prior to the 4th July, 1849, and therefore subject to the provisions of-that Act.

Was Lewis then “ actually engaged in the science of agriculture ?” The time to which this inquiry relates is the time of the levy, which is not given in the paper-book; but as the execution was issued on the 21st of January, 1851, returnable the 10th of Eebruary ensuing, we may assume the time of the levy -to have been about the last of January, 1851. It appears, from the evidence, that Lewis was a tailor by trade; that in 1849 he rented and moved to the Fayette Springs property, consisting of a tavern house and some forty acres of cleared land; that he kept tavern and a boardinghouse ; let out part of the land to farm on shares, and farmed the rest himself; and in the summer of 1850, raised the usual variety of'crops, and when the farming season was over, he “ tailored,” as the witnesses called it. In the fall of 1850 he declared his intention to go west the next spring as far as he should be able ; and the proof was, that he did move to the west in May, 1851.

A person is “actually engaged in the science of agriculture” when he derives the support of himself and family in whole, or in part, from the tillage and cultivation of fields. E[e must cultivate something more than a garden, though it may be much less than a farm. If the area cultivated can be called a field, it is agriculture, as well in contemplation of law, as in the etymology of the word. And if this condition be fulfilled, the uniting of any other business, not .inconsistent with the pursuit of agriculture, does not take away the protection of the Act. The keeping tavern and hoarding-house, and the working at his trade as a tailor in the intervals, of the seasons for farming, did not divest Lewis of the benefits which the statute was intended to secure to him. The Act extends its, protection over the property of the agriculturist during the winter,when he is obliged to suspend his labors in the field, as effectually as in the summer, while actively engaged in rearing or harvesting crops.

Nor did his talk of going to the west take from Lewis the character which his occupation had impressed. The facts in evidence brought him abundantly' within the description of a person actually engaged in the science of agriculture;’ and in January, 1851, he was entitled to all the immunities which the law gave him, and which were in no manner affected by his declared intention of removing westward. As tenant of the property at Fayette Springs, all his rights remained whilst his lease lasted. If his creditors wished to seize his horse in execution, they should have waited till his term expired. As it was, their levy was premature, and the action against the constable was well brought.

Judgment affirmed.


author: Knox, J.

text:
    Harper versus Roberts.
    A writ of error will not lie to an opinion of the Court on a case stated, no judgment appearing to have been rendered. No judgment appearing, the writ of error was quashed.
    Error to the Common Pleas of Fayette county.

    There were two cases referred to on the paper-book; one in favor of Albert Harper v. Samuel Roberts, executor of the will of Abraham'Little, deceased, and the other in favor of John Harper, against the same defendant.
    In the paper-book of the plaintiff in error it was stated that these were amicable actions of debt to try the plaintiffs’ right to their share of a legacy of $1200, given by the will of defendant’s testator to the children of his deceased sister. It was stated that the case was submitted for the opinion of the Court below upon the following facts; and there followed a statement of facts, but it was not stated what or whether anything was submitted to the judgment of the Court. There followed an opinion of the Court, but no'judgment was stated; but it was assigned for error that the Court below erred in giving judgment for the defendant.

      Ewing and Kaine, for plaintiff in error.

      J. B. and A. Howell, for defendant in error.
   The opinion of the Court was delivered by

Knox, J.

In these cases, certain facts were submitted to the Court below for their opinion, without any provision that judgment should be entered for either party.

The Court gave an opinion in favor of the defendant, but entered no judgment. This writ of error is taken; but to what ? Not to the judgment, for there is none. It will not lie to the opinion, and hence we must dismiss it.

It seems that the parties desired the advice of the learned judge below, and he has given it to them. ,If they are dissatisfied with it, they had better proceed to a trial of their cause. It is ordered that the writ of error be quashed.


author: Lewis, J.

text:
    Cyphert versus McClune.
    1. The regularity of a judgment cannot he inquired into in a collateral action. If confessed, by an attorney it is conclusive of his authority.
    2. Where an attorney appears without authority and confesses judgment, the remedy is against him ; or in a proper case, an application may he made to the Court to open the judgment.
    3. Where judgment is confessed against several by an attorney under an authority from only one of them, it is the duty of the others to make early application to the Court to open the judgment. If this he omitted, and their lands he sold under it, they are concluded from raising the objection in an ejectment by the sheriff’s vendee.
    4. The giving notice at the sheriff’s sale of the property, of such defect of authority in the attorney, amounts only to notice that the defendants in the judgment then knew of the defect, hut had taken no proper measures to arrest the proceedings.
    Error to the Common Pleas of Clarion county.

    This was an ejectment by Reed McClune v. Solomon Cyphert, Benjamin E. Harley, James Harley, and Jacob Peas, for a tract of land in Clarion county, containing about 156 acres.
    The land had been the property of G. W. Corbett, George Rynard, and Solomon Cyphert. It had been sold twice at sheriff’s sale; at the first sale it was purchased by McClune, the plaintiff, and at the second by B. E. and James Harley, two of the defendants. . The sale to the plaintiff was made upon a judgment to December Term, 1849, in favor of John McCoy v. Corbett, Rynard, and Cyphert.
    The action of McCoy was in assumpsit, and the service of the writ was accepted by attorney—and it was stated on the record that September 13, 1849, defendants by their attorney, &c., appeared, and, with consent of plaintiff’s attorney, confessed a judgment against said defendants, &c. On a vend. exp. to May Term, 1851, the property in question was sold to Reed McClune, the, plaintiff. Sheriff’s deed to him dated Sept. 4, 1851.

      It was proved that Solomon Cyphert resided on the land before the sheriff’s sale, and that he was still residing on it. After this evidence there was given in evidence, on part of the defendants, a judgment in an amicable action to February Term, 1850, in favor of Benjamin-F. and James Harley against the same defendants, as lately trading under the name of Gr. W. Corbett & Co. It was stated on the record, that on January 15, 1850, defendants, by their attorney, with consent of plaintiff’s attorney, confessed a judgment to plaintiffs, &e. A fi. fa. issued to December Term, 1851, inquisition was waived by Solomon Cyphert, who consented to a sale under the fi. fa., and the premises were sold to Benjamin and James Harley for $90. Sheriff’s deed to them dated February 6, 1852.
    It was stated on the part of the defendants in error, that the attorney who confessed the judgment in favor of McCoy, under which the sale was made to McClune, had been the attorney of the firm of Cyphert, Rynard & Corbett, and had been retained by them to appear for them generally. That on 13th September, 1849, when he confessed the judgment, he had no notice that he was no longer the attorney of the firm. That the dissolution took place, if ever it occurred, on the 11th or 12th September, 1849. The debt for which the judgment of McCoy was obtained, was for masonry done at the furnace stack of Gr. W. Corbett & Co.
    On the trial it was offered to be proved, on the part of the defendants, that the judgment of McCoy, under which the-plaintiff claimed, was confessed after a dissolution of the partnership of Cyphert, Rynard & Corbett, and that by the terms of the dissolution, Gyphert was made the settling and receiving partner—that Corbett, without any authority from Rynard or Cyphert, employed counsel and procured the confession of judgmfent; and further, that at the time of and before the sale, McClune, the purchaser, was duly notified of the defective character of the judgment. This was objected to and was overruled—and the rejection of it was assigned for error.
    December 6, 1852, verdict for plaintiff.

      Purviance, with whom was Boggs, for plaintiffs in error.
    One partner cannot confess judgment against his copartners without their express authority, although for a debt of the firm: 1 W. & Ser. 340; 7 Id. 142. Though the attorney who confessed the judgment appeared generally, yet the plaintiff in this ejectment, before his purchase at the sheriff’s sale, had notice of the want of authority on the part of the attorney. One who purchases a title declared to be bad by notice given at the time of the sale, does not act with proper prudence: 2 Howard 653. Whatever is sufficient to put a person on inquiry is sufficient to affect Mm with notice: 7 Watts 167; 10 Id. 29, 67.

      Corbett, contrà.
    A judgment entered of record can be reversed only on a writ of error, or be set aside by the Court below. This latter can be done only at the instance of the defendant in the judgment. A third party can interfere only when the judgment is collusive. The validity of a judgment entered informally or without proper authority is not to be tried in a collateral proceeding: 6 Barr 272; 8 W & Ser. 390; 5 Id. 473; 1 Watts 139; 4 Id. 341.
    The judgment of McCoy took place in a regular proceeding. A summons was issued, and an attorney appeared for all the defendants, and confessed judgment against the firm. The record is not to be changed by parol testimony so as to affect third persons, even by notice to them. If the judgment was entered without authority, the defendants injured may proceed against the attorney: 16 Ser. & R. 368. It is not allowable for strangers to go behind the record to inquire into the authority of the attorney: 2 Watts 493; 2 Yeates 546. Corbett & Co. have by acquiescence ratified the act of the attorney. They allowed execution to issue, an inquisition to be held, and a sheriff’s sale to be made, and deed executed for the premises.
    The notice, if given, would have informed McClune only that the judgment was entered without authority, and this would not have-been sufficient. In Drexel’s Appeal, 6 Barr, the judgment was informally, entered—in Hauer’s Appeal, 5 W. & Ser. 473, it was entered in a Court without authority. In both eases the defects were apparent on the record. In the present ease, the parol evidence would only have shown a defect which the record did not show.
    The sheriff’s deed to McClune was acknowledged after the sale, and of course after the notice given at the sale. It was said that no objection was made by Corbett & Co. to the acknowledgment of the deed. This, it was alleged, was such silence on their part as to avoid the effect'pf any notice given at the sale.
   The opinion of the Court was delivered by

Lewis, J.

The regularity of a judgment cannot be inquired into in a collateral action. The judgment is conclusive upon all matters which have been pleaded or given in evidence in bar of the action. If confessed by an attorney, it is also conclusive of the attorney’s authority. Where an attorney appears without authority and confesses judgment, the remedy is against him; or in-a proper case, an application may be made to open the judgment. Where an attorney confesses judgment against several partners, under an authority derived from only one, it is the duty of the others to make immediate application to the Court to open the judgment. If they omit this, after notice, and permit their lands to he levied on, condemned, and sold, they are concluded by their own acquiescence, if not otherwise precluded, from raising the objection against the sheriff’s vendee. Giving notice of the objection, at the sheriff’s sale, amounts to-nothing more than to show-that the party complaining has notice himself of the defect of authority, but acquiesces in it by taking no measures to arrest the proceedings. The Court below was clearly right in rejecting the evidence offered to impeach the plaintiff’s title under the sheriff’s sale.

Judgment affirmed.


text:
    Elliott versus McGowan.
    1. Irregularities in executing a law must be taken advantage of before the sheriff’s deed for the .land in question, is acknowledged. They cannot be made the foundation of objections to the title derived under the decree of a Court of competent jurisdiction.
    2. The 12th section of the Act of 13th June, 1840, relative to the sale of adjoining land lying in two counties was not intended to give jurisdiction to the Court in which the judgment was obtained—the power to sell by means of a testatum execution existed before.
    3. Where part of a tract of land lying in one county is levied upon, and the inquest finds that it cannot be sold separately from the other adjoining part lying in another county without prejudice to those interested in it, and specifying the part which ought to be included in the sale; in order to authorize a vend. exp. to issue for the sale of both parcels, all that is necessary under the Act of 1840, is that the requisition be returned and be approved of by the Court.
    .4.’ The omission of the plaintiff to file the docket entry and proceedings in the adjoining county will not destroy the jurisdiction of the Court, nor prejudice the title of the purchaser, after the debtor or others interested have acquiesced in the proceeding by permitting the sheriff’s deed to be acknowledged.
    5. Nor will the omission to enter in the adjoining county a copy of the proceedings subsequent to the return of the inquisition, vitiate the sale, though it may affect the plaintiff’s lien.
    6. The objection that the last inquest was held by the successor in office of the sheriff who held the first, is not material—nor [hat either was held after the return of the writ. At most it is but an irregularity which does not affect the title.
    Error to the Common Pleas of Lawrence county.

    This was an-ejectment by Cyrus Elliott v. James McGowan, for ten acres of land, more or less, situate in Lawrence county, formerly Mercer, and which was bounded on the south by the line between Mercer and Butler counties, now Lawrence and Butler.
    On part of the plaintiff was shown the seisin of his father in the land in dispute, and his death, and a partition among the heirs in proceedings in the Orphans’ Court of Mercer county, whereby the land in dispute, inter alia, became vested in the plaintiff.

    On part of defendant was given in evidence an exemplification of a record in the Common Pleas of Butler county; with a view to show an outstanding title in Benjamin F. Elliott to the land in dispute.
    The judgment referred to was in favor of James Davidson v. Cyrus Elliott, and was entered to December Term, 1842. Debt $5579.28. Judgment on 6th January, 1843; fi. fa. to September Term, 1843, levied on 210 acres of land. Inquisition held in the town of Butler on 8th June, 1843, before James Gr. Campbell, sheriff, and land condemned. The inquisition was approved by the Court on 13th September, 1843. A further inquisition was held, on April 28, 1846, on the premises, by Gr. W. Read, the then sheriff of Butler county, under the same ji. fa. the levy under which had been made by the preceding sheriff; and from the inquisition it appeared that the land levied on in Butler county could not be sold separately from a part of the same tract lying in Mercer county, without prejudice, &c.
    This inquisition was approved by the Court on 1st May, 1846.
    A vend. exp. issued to September Term, 1846, to sell the part in Butler which had been levied upon; and also the part adjoining in Mercer county. The writ was returned, stating that the property had been sold to Benjamin F. Elliott, for $2000, on September 26, 1846. On same day the judgment was assigned to Benjamin E. Elliott, the purchaser. There was offered the deed by the sheriff of Butler county, acknowledged on 9th November, 1846. The deed was objected to on the ground that the land in dispute, at the date of the deed, was in Mercer county, and that there was no evidence of a compliance with the provisions of the Act of 13th June, 1840, in relation to the sale of adjoining land lying in two counties.
    The deed was received in evidence, and the plaintiff’s counsel excepted.
    See Act of 13th June, 1840, in Acts of 1840, p. 689.
    Agnew, J., charged as follows:—“ The whole question in this case turns upon the validity of the sheriff’s sale. Having already, in the admission of the deed, decided that the proceedings were sufficient to support it, and there being nothing in the subsequent evidence to affect the sale, we instruct you that the sheriff’s sale and deed confer upon Benjamin E. Elliott, the purchaser, a sufficient outstanding title to protect the defendant against recovery by the plaintiff.”
    It was assigned for error: 1. The Court erred in admitting the sheriff’s deed, as mentioned in the hill of exceptions. 2. In charging the jury, that the proceedings in Butler county were sufficient to support it; and that the sheriff’s sale and deed conferred upon Benjamin E. Elliott, the purchaser, a sufficient outstanding title to protect the. defendant against recovery by the plaintiffs.

      Watson, for plaintiff in error.
    The first question presented is, whether the Act of Assembly of 13th June, 1840, is merely directory, or whether it is peremptory. We contend that the Act is peremptory, and that each and every part, provision, and direction of the Act shall be strictly pursued, or that no title passes to the purchaser; or, in other words, where the direct words of a statute require a plaintiff to take a particular proceeding, if it has not been adopted by him, the courts must consider that the omission renders the plaintiff’s proceeding a nullity: 4 Smith’s Laws, p. 326; per Lord Denman, C. J., in Mortimer v. Piggott, 2 Dowl. 616; and per Williams, Justice, in Roberts v. Speem, 3 Dowl. 554. It is an established rule of law in relation to statutory powers to transfer the title to lands without or against the consent of the owner, that the authority must be strictly pursued: 3 Denio 594. If any material link in the chain be wanting, the whole proceeding must fall to the ground: 4 Hill 86, 92, 7 Hill 9, 2 Denio 323, and 3 Denio 594. And a complete defect in the proceedings cannot, like a mere irregularity, be waived. Osborne v. Taylor, 1 Chitty’s Rep. 400; 2 Chitty 237; Tidd 515; Eng. Com. Law Rep. 18, 115, 318.
    2d. It was contended that the whole proceedings were a nullity. That when the fi. fa. No. 71, June Term, 1843, was issued, levy made, inquisition held, &c., and confirmed by the Court, the writ was functus officio, and all subsequent proceedings were a nullity. There was no writ of fi. fa. directed to George W. Reed, sheriff of Butler county, upon -which to hold an inquisition on the premises. The fi. fa. No. 115, September Term, 1843, directed to James C. Campbell, sheriff of Butler county, had been returned by him levied on land. The officer had performed everything under that authority of the Court that could be done, and the writ was fundus officio. The land described in the inquisition of 28th April, 1846, was not described by metes and bounds, as required by the Act of 13th June, 1840. Upon the return of the inquisition “ the plaintiff did not cause a copy of the docket entry and the whole proceedings connected with said writ, to be filed and recorded in the office of the prothonotary of the said adjoining county in which the lands mentioned in the said inquisition were situated: vide Act of 13th June, 1840. No notice of the sale was given in Mercer county, as required by the Act of 13th June, 1840: 3 Denio 594; 4 Hill 86, 92; 7 Id. 9; 2 Denio 323; 2 Id. 160; 6 Hill 646; 10 Wendell 393. Copies of the subsequent proceedings in said case were not filed and recorded in the office of such prothonotary, immediately after the sale by the sheriff, as required by the Act of 13th June, 1840.
    The Court declined to hear the adverse counsel.
   The opinion of the Court was delivered by

Lewis, J.

The 12th section of the Act of 13th June, 1840, was passed to prescribe the manner in which lands situate in different counties might be sold on execution for the payment of debts. Jurisdiction to direct a sale of any of the lands of the debtor in the Commonwealth, previously existed in every Court of Common Pleas in which a judgment was entered against him; but the method was to sell under testatum executions' to the counties where the lands were situated, and it sometimes happened that where a farm was divided' by a county line the parcels of it were sold at different times, to different purchasers, and each became the owner of a part which could not be separately occupied to advantage. Both parts were prejudiced by the separation, and the sale under these circumstances, caused the lands to be sacrificed to the prejudice of the debtor and his creditors. It was to remedy this evil that the Act of 1840 was passed. The Act was not intended to give jurisdiction, for this existed before, but to regulate the manner of exercising it. Any irregularities in executing the law must therefore be taken advantage of before the deed is.acknowledged; they cannot be made the foundation of objections to the title derived under the decree of a Court of competent jurisdiction. When part of a tract of land in one county is levied upon, and the inquest finds that it cannot be sold separately from the other part lying in the adjoining county, without prejudice to the interests of those concerned, specifying the part in the adjoining county which ought to be included in the sale; all that is necessary to authorize the venditioni exponas to issue for the sale of both parcels, is that the inquisition should be returned and be approved of by the Court. When this- is done, the Court in which the judgment exists ' has full authority to issue writs for the sale of both parcels “as in other cases;” that is, as if both parcels were situate in the county where the judgment is entered. This is the language of the Act. The omission by the plaintiff to file the docket entry and proceedings in the adjoining county, does not destroy the jurisdiction of the Court, and clearly cannot prejudice the title of the purchaser, after the debtor and all other persons interested have acquiesced in the proceedings by permitting the sheriff’s deed to be- acknowledged. As the sheriff is bound to give the debtor notice of the sale, the presumption, of course, is that the latter consented tacitly to the proceeding with full notice of its progress.' It is equally clear that the omission to enter, in the adjoining county, a copy of the proceedings subsequent to the return of the inquisition, cannot vitiate the sale. This is not required to he done until after the sale has been returned, and the rights of the purchaser have vested. The object of the transmission of copies of the proceedings to the adjoining county, upon the return of the inquisition as stated in the Act, is to give •the plaintiff a lien there; and the transfer of copies of the subsequent proceedings was a necessary precaution to give notice that all persons concerned might protect their rights in the distribution of the fund, and that none might be injured by a second sale of the land in ignorance of the facts. The Act of 16th June, 1836, contained a direction for the'entry on the docket of testatum executions, for similar purposes; but it has never been supposed that its omission invalidated a sheriff’s sale under such writ, although it might affect the plaintiff’s lien. So, in the case before us, the omission may affect the plaintiff’s lien, but it cannot destroy the title of the sheriff’s vendee.

There is nothing in the objection that the last inquest was held by the successor in office of him who held the first. Nor is it material ’that either was held after the writ had been returned. This is analogous to the ancient practice in holding inquests'for extending or condemning the land: Wilson v. Howser, 2 Jones 115. At most it is a mere irregularity in no way affecting the title. _ Public policy, and the interests of debtors and creditors, require that sales, made under decrees of Courts of competent authority, should be sustained after final confirmation. The confidence reposed by the people in the justice and authority of the judicial tribunals, ought not to be made the means of ensnaring them to their destruction.

Judgment affirmed.


text:
    Kaine versus Denniston.
    1. Where lands of a decedent are sold upon a judgment against his administrators, the receipts of the different judgment-creditors upon their judgments for their respective'proportions of the proceeds are not notice to a purchaser from the sheriff's vendee that the latter paid no money, but purchased and held in trust for the' creditors in proportion to their interests respectively.
    2. It was Held, that the recital in a deed, made for a nominal consideration, that it is made in pursuance and fulfilment of a trust reposed in the grantor by the grantee, is no notice of a trust for any other person than the grantee himself—especially when the conveyance was to the grantee and his heirs in fee simple, for the only proper use and behoof of the said grantee and his heirs and assigns for ever.

      3. A sheriff’s sale of a portion of the land thus conveyed, made under a judgment against the said grantee, vests in the purchaser a title free of any trust.
    Error, to the Common Pleas of Mercer county.

    This was an action of ejectment for 270 acres of land in Laclcawannoek township, Mercer county, warranted in the name of Timothy Jordan, and patented to John Hoge. It was brought in the name of Daniel Kaine, and Eliza Jane his wife, in her own right, who was Eliza Jane Irwin, sole daughter and heir of Mary Ann Irwin, deceased, who was Mary Ann Waugh, wife of John H. Irwin, deceased, v. James Denniston, John Madden, and James Thompson. The action was instituted on 9th September, 1850. On 10th August, 1853, verdict was rendered for the defendants.
    Both parties claimed under John Hoge.
    The Rev. Samuel Waugh, of Cumberland county, died in 1814, leaving five minor children, viz. Jane, afterwards married to Elderkin Potter ; Eliza, afterwards married to George Burd ; Mary Ann, afterwards married to Dr. John Irwin, and John H. and William Waugh.
    Mary Ann was born in 1803, and on the 27th June, 1814, the Orphans’ Court of Washington county appointed John Hoge her guardian; and, shortly after, also appointed him guardian of the other children. As their guardian he received a large amount of money belonging to his said wards, for which he never accounted to them. Mary Ann was married, in her minority, to Dr. John Irwin, in 1822. On the 28th March, 1823, an amicable action was entered in the Common Pleas of Washington county, by “Dr. John H. Irwin, and Mary Ann his wife, late Mary Ann Waugh, ward, in right and on behalf of the said Mary Ann,” against John Hoge, to recover the money he had received, belonging to his said ward. Hoge died before trial, and a scire facias was issued to make his administrators parties .to the suit, which was returned “ nihil.” The scire facias recited that the claim was “ in right and on behalf of Mary Ann Irwin, late Mary Ann Waugh.” An alias issued containing the same recital, which was returned “ served.” In 1825 an' agreement was entered into by and between the attorney for plaintiffs, and the administrators of John Hoge, for an amicable substitution of the administrators las defendants, which stated the claim in the same way, viz. “ in right of and on behalf of,” &c. On the 25th August, 1827, judgment was entered for the plaintiffs, for $5466.28. About that time judgments were also recovered against said administrators, by Elderkin Potter and his wife, .George Burd and wife, and William and John H. Waugh, for the amounts respectively due them from their late guardian.
    Hoge left a large real estate in Washington, Beaver, and Mercer counties. That in Washington county, consisting principally of ground-rents, was sold on executions, and the proceeds applied to judgments obtained against Iioge, in his lifetime. The estate in Beaver county consisted of two tracts of land, one of 150 acres, and the other of 1000, with small improvements on them, and in Mercer county of about 20 tracts, unimproved.
    In 1828, David Hoge recovered a judgment in the Common Pleas of Washington county, against the administrators, for $1725, and at that time, or shortly after, an arrangement was entered into by Elderkin Potter and wife, George Burd and wife, Dr. John H. Irwin and wife, in right of and in behalf of their wives, and William Waugh, and the assignee of David Hoge, to sell the lands of John Hoge, in Beaver and Mercer counties, upon executions to be issued on their judgments, and that they should be bought in by Elderkin Potter, for the use of David Hoge’s assignee, and the heirs of the Rev. Samuel Waugh, to be divided amongst them in proportion to the amounts of their respective judgments.
    In pursuance of that arrangement, the lands in Beaver county were sold by the sheriff, on the 18th April, 1829, on an execution issued on the judgment of Dr. Irwin and wife, and the 1000 acre tract was purchased by Elderkin Potter for $150, and the 150 acre tract by Joseph Minesinger, for $760. From the sheriff’s return it appeared that the larger tract had been struck off to Elderkin Potter and Dr. John H. Irwin, but the return had been amended by leave of Court, so as to read to Elderkin Potter alone. Deed by sheriff to Elderkin Potter.
    Upon the judgment of William Waugh, executions were issued in 1829 to the sheriff oí'Mercer county, and 13 tracts levied upon, and two of them sold: one of them, the tract in dispute, to Elderkin Potter, for $1000. From the return of the sheriff it appeared that this tract had also been struck off to Elderkin Potter and Dr. John Irwin, and the return amended so as to read to Elderkin Potter alone. Sheriff’s deed to Elderkin Potter, dated 6th October, 1830. The other tract was sold to Alexander McCullough, for $225. In the same year, but after the levy upon the Waugh execution, executions were issued on the judgments of Dr. Irwin and wife, and David Hoge, to the sheriff of Mercer county, and all the land of John Hoge remaining unsold, was levied upon and sold, and Elderkin Potter, in pursuance of the aforesaid arrangement, purchased 14 of the tracts at an aggregate sum of $4287, and deeds were made to him by the sheriff. The aggregate of all the purchases by Potter, in Beaver and Mercer counties, was $6437. The other tracts were purchased by other persons.
    No money was paid by Potter, or received from him or the sheriff by any of the parties to the arrangement; but it was receipted for by credit oil the judgments of the respective parties, in proportion to their various interests. The amount credited upon the judgment of Dr. Irwin and wife, which was the largest, was $2102. There were other debts by simple contract, to which and the costs of sales, the cash received from the other purchasers was appropriated.
    The plaintiffs read in evidence the depositions of Eliza Burd, John H. Ewing and Samuel Cunningham, an extract from the report of auditors distributing proceeds of sales, and receipts on the judgments. The said witnesses testified, inter alia, to the arrangement aforesaid, and that Irwin and Potter had no claims in their own right against John Hoge, or his estate; and that the lands in Mercer and Beaver counties were sold to satisfy such claims. J. H. Ewing further stated that no money except the costs was paid on such sales, but that credits were given on the judgments.
    On the 3d July, 1831, Elderkin Potter, by his deed, conveyed to Dr. John H. Irwin four tracts of land, including the tract in dispute, containing in the aggregate 1052 acres, in consideration of one dollar, “ and in pursuance and fulfilment of a trust reposed in Mm the said Potter by the said Irwin.” This deed was given in evidence by the plaintiffs for the purpose of showing that partition had been made of the lands in Mercer county purchased by Elderkin Potter.
    Mrs. Mary Ann Irwin died in the spring of 1832, leaving two children, one of whom died in childhood, the other, Eliza Jane Irwin, was born in 1823, and was married in 1842, whilst in her minority, to Daniel Kaine. Dr. John H. Irwin died in 1849, and Mrs. Kaine claimed title in this ejectment as heir of her mother, Mary Ann Irwin, for whom, it was alleged, Elderkin Potter purchased and held, in trust, the land in controversy.
    The defendants’ case was as follows: Sale book, of unseated lands in Mercer county, sold for taxes in 1840—entry therein, “warranted. J. Irwin part right, 270 acres, county, road and school taxes for 1838-39, amounting to $36.40, 100 acres off of south end, sold by treasurer to James Thompson for $331, for county, road, and school taxes for 1838-39.” Deed from treasurer of Mercer county for the 100 acres, dated 23d June, 1840. Testimony of Robert Caldwell and others, that in the fall of 1842, Thompson had the 100 acres run off, and in the spring of 1843 went into possessioxr of the hundred acres, built a house, cleared land, and continued to occupy it by himself and tenants pver since. His improvements were valued at $880.52.
    The record of a judgment in the District Court of Allegheny county, John Crossan v. Dr. John H. Irvin, 25th July, 1842, for $142.35 ; testatum fi. fa., to sheriff of Mercer county, and levy upon 179 acres, the remainder of the tract in dispute—valuation by inquest, at twenty dollars per acre,—test. vend, exp., and sale by the sheriff to James Denniston for $805. Sheriff’s deed to James Denniston, dated 10th August, 1818, for 170 acres.
    Sale book of unseated lands, showing a sale by the treasurer of Mercer county, on 10th June, 1844, to James Denniston, of 270 acres, the whole of the tract in controversy, for forty-five dollars, for the county, road, school, and state taxes of 1842-43. Treasurer’s deed to James Denniston for 270 acres, dated 10th June, 1844; and testimony of witnesses that Denniston went into possession in the spring of-1844, continued in possession ever since, and made improvements valued at fifteen hundred dollars. That Thompson and Denniston compromised, and Thompson continued to hold the 100 acres purchased by him, and Denniston the residue.
    The defendants then offered a receipt of Dr. John PI. Irwin for the deed from Potter to him, and the depositions of Wm. Waugh and Andrew Burd, to prove that the deed mentioned in the receipt was delivered to and accepted by Dr. Irwin, on the 17th Dec. 1831. These were objected to by plaintiffs as irrelevant; objection overruled and testimony admitted. Defendants also offered to prove by J. P. Garret, that Dr. Irwin had possession of the deed from. Potter, in 1840, exhibit.ed.it to witness as his own, and offered to sell to witness the property as his own land. This was objected to by plaintiffs as irrelevant and incompetent; objection overruled and testimony admitted. Defendants further offered a deed from Dr. Irwin to Wm. McCollough, dated 22d June, 1832, of one of the tracts for the purpose of showing that Dr. John H. Irwin claimed and sold the land as his own. This was objected to by plaintiffs: objection overruled, and testimony admitted.
    In the receipt of Irwin to Potter it was stated that the lands conveyed to him by the deed of Potter, were the same lands which, together with others, the said Potter purchased at sheriff’s sale, “ in trust for himself myself and other creditors of the said Hoge, deceased, the said four tracts being there set off to me by persons mutually and amicably chosen by the said creditors, for whom the said Potter held the same in trust, to make division of said trust lands, with which said deed from said Potter and myself I hereby acknowledge myself content and satisfied,” &e., &c.
    On the trial below, it was contended on part of the plaintiffs, that there was no such reduction into possession by Dr. Irwin of the money due his wife from the estate of John Hoge, as would make him the owner of it.
    That his acts prior to 1832, were in affirmance of and not inconsistent with the rights of his wife.
    That under the arrangement mentioned, Elderkin Potter purchased and held the land in trust for the heirs of the Rev. Samuel Waugh, and the assignee of David Hoge.

      That immediately upon the purchase by Potter, an interest in the lands purchased vested in Mrs. Irwin, which could not be divested by any subsequent acts or declarations of Potter, or her husband.
    That there was sufficient upon the record, and in the deed from Potter to Irwin, to put a purchaser upon inquiry, viz.: The way in which the amicable action was entered, “in right of, and on behalf of,” &e. The recital of the same in the writs of scire facias, and in the amicable agreement for substitution of the administrators as defendants. The fact apparent that no money was paid, but a credit entered on the judgment for Mrs. Irwin’s proportion of the purchase-money in pursuance of an arrangement between the parties interested. The nominal consideration of one dollar in the deed from Potter to Irwin of four valuable tracts of land, containing in the aggregate 1050 acres; also, the recital in the same deed that it was “ in fulfilment of a trust reposed in him, the said Potter, by the said Irwin.”
    That Dr. Irwin had but a life estate in the land, and the title by sheriff’s sale terminated at his death, which was before the institution of this ejectment.
    That Denniston, under his sheriff’s deed, was but a tenant for life during the life of Dr. Irwin; that the sale for taxes in 1844, which he permitted, after he had taken possession, for the purpose of extinguishing the title derived by Mrs. Kaine from her mother, was in fraud of her rights, and that the title acquired by the treasurer’s sale would enure to her benefit and not Denniston’s.
    That the sale for taxes in 1844 was void, because the taxes, in law, were paid and satisfied, as the sale upon the Crossan execution left a large surplus in the hands of the sheriff, which is still in his hands, and more than sufficient to pay the taxes.
    That the taxes for which the land was sold in 1844, had been assessed before the sale on the Crossan execution, and a sheriff’s sale extinguishes all liens, and that the taxes were liens.
    McCalmont, President Judge, inter alia, charged as follows:
    “To support their claim, the plaintiffs show a patent to John Hoge, dated 17th April, 1804, for 400 acres 105 perches, warranted in the name of Timothy Jordan; a judgment in the Court of Common Pleas of Washington county, No. 3 of January term, 1824, William Waugh, late a ward, v. John Hoge, his guardian, under which the land in controversy was sold on a testatum vend, ex. by the sheriff of Mercer county, on the 1st Dec. 1829, as appears by the return on the writ, to Elderlcin Potter, for the sum of ; a deed therefor, from the sheriff, Andrew'Cristy, to Elderkin Potter, dated the 6th day of October, 1830; and a deed from Elderlcin Potter to John H. Irwin, dated 8th July, 1831.
    “The plaintiffs claim title through Mrs. Irwin, wife of said John H. Irwin. It is in evidence that Mrs. Kaine, the plaintiff, is the only surviving heir of Mrs. Irwin. In order to show title in Mrs. Irwin, the plaintiffs allege that Dr. J. H. Irwin held the legal title to the land in controversy, as a trustee for her; and contend that at her death, he became merely the owner of the life estate, and that at his decease, which was before the commencement of this suit, the remainder in fee simple vested in Mrs. Kaine.
    “ To support this allegation, the plaintiffs have given in evidence: (here the Court referred to the exemplification from the Common Pleas of Washington county, No. 64, June term, 1824, depositions of Ewing, Mrs. Burd, and other evidence.) By the law, as it was before the Act of 1848, the personal property of the wife which was in her possession became, upon her marriage, absolutely the property of her husband, without any formal act of ownership. It was not so, however, as to what are called choses in action, such as debts due the wife before her marriage. Before such became the property of her husband, it was necessary for him to reduce the same into his possession, or to exercise some formal act of ownership over them. The bringing suit by the husband, and obtaining judgment therein, .would be such a reduction of the claim into possession, as would make it the property of the husband.
    “ The plaintiffs contend, however, that the circumstances of the claim being in right of the wife, and the action being stated in the manner in which it was, are evidence to show that the claim was not reduced into possession.
    “ On the other hand, defendants contend that the agreement on file in the entering of the amicable action, the receipt of the judgment by the attorney for the plaintiffs in said action, the declaration of Dr. Irwin, as testified to by Mr. Garrett, which was to the effect that the title to the land conveyed by the deed from Potter was in him, together with other evidence which the jury will recollect, show that the claim was actually reduced into the possession of the husband. This is a question for the jury. But supposing that the claim was not reduced into possession by Dr. Irwin, then the plaintiffs further allege that there was an arrangement between all the parties, plaintiffs in the action, to have the land sold at sheriff’s sale, and that it was so sold, and deed made to Elderkin Potter, who was holding the legal title in trust for Mrs. Irwin, among others, and not for her husband, Dr. Irwin; and that the deed from Elderkin Potter to Dr. Irwin was in trust for Mrs. Irwin. Now how are the facts ? This might be a question for you to decide; but under the view we take of the evidence in the case, it will be unnecessary for the jury to decide this question.
    “The defendants, James Thompson and John Madden, claim, under a treasurer’s deed: that this land was assessed for the taxes of 1838 and 1839; that 100 acres thereof was sold for said taxes, as unseated land, by the treasurer, and a deed from the treasurer, David J. Porter, to James Thompson, for 100 acres off the south end of the tract, was made on the 30th June, 1840, and a survey thereof made at the request of Mr. Thompson, by Benjamin Alexander, one of the witnesses, in the fall of 1842; that Thompson took possession immediately, commenced clearing, made valuable improvements, and has continued in possession up to the present time. If you believe this evidence, which does not seem to be disputed, your verdict should be as to this 100 acres for the defendant. The next question is as to the 170 acres not included in the treasurer’s deed to Thompson.
    “ The defendants claim, by virtue of a judgment in the District Court in Allegheny county, No. 879, July term, 1842, at the suit of John Crossan v. John H. Irwin, a testatum fi. fa. thereon, a levy upon his 170 acres by the sheriff, on the same writ, which was sold upon an alias vend, ex., No. 95, of July Term, 1843, to James Denniston, for $5805; and a deed therefor made by the sheriff, John Forker, to Denniston, on the 10th August, A. D. 1842. The plaintiffs contend that Denniston, the defendant, bought only a life estate, being the life estate of Dr. Irwin; that Dr. Irwin held as a trustee, and that Denniston holds as a trustee, and that Denniston holds the legal title in trust, by virtue of the purchase for Mrs. Iiaine.
    “ This brings us to the important question, whether, if Dr. Irwin was such a trustee, had Denniston notice of the trust so as to affect his title ? There appeared to be no evidence of actual notice, and it is admitted by the counsel for the plaintiff that there is none before you; but it is considered by them that there was constructive notice of such a trust sufficient among the title papers and records given in evidence, of which Denniston was bound to,take notice.
    “After a careful consideration and examination of the, deeds and records, we are of opinion that, if there was such a trust, there is not in evidence sufficient to affect Denniston with constructive notice of it; that it was a secret trust, if any, and that Irwin being a holder of the legal title at the time of the levy and sale, and Denniston becoming the purchaser thereof without notice of the trust, his title would be good, and accordingly is entitled to your verdict.
    “ This renders it unnecessary to consider the effect of the treasurer’s deed to Denniston.
    “ Under the view we have taken of the case, your verdict will be for the defendants, for the 170 acres of land included in the deed of the sheriff to James Denniston. And if you believe the testimony of Benjamin Alexander and others, which seems to be uncontroverted as to the survey and possession of Thompson, under the treasurer’s deed for the remaining, 100 acres included in the writ, your verdict will also be for tbe defendants for this 100 acres, which disposes of the whole tract in suit.”
    A number of points were presented on part of plaintiffs, most of which, though answered generally in the negative, the Court observed that they did not consider it material to answer separately from the general charge.
    The opinion in this Court was confined, as will appear, to the deed of Potter to Irwin, and the question of notice to the purchasers of a trust for the wife of Potter, and to the effect of the treasurer’s sale.
    Verdict was rendered, as before observed, for the defendants.
    See the opinion of Lewis, J., for the points deemed by the Court material in this case.

      Stevenson and Fetterman, for plaintiffs in error.

      Stewart, with whom was Holstein, for defendants in error.
   The opinion of the Court was delivered by

Lewis, J.

Where lands of a decedent are sold upon a judgment against his executors, the receipts of the different judgment creditors upon their judgments for their respective proportions of the proceeds are not notice to a purchaser from the sheriff's vendee that the latter paid no money but purchased and held in trust for the creditors, in proportion to their interests respectively. There is nothing on the face of the transaction tending to show that the purchase at sheriff’s sale was not made in the usual way by the payment of the purchase-money to the sheriff. In such a case the appropriation of it to the lien creditors, according to their respective rights, creates no resulting trust. Nor is the purchaser responsible, in any manner, for the proper application of the money.

The recital in the deed of the 8th July, 1831, from Elderkin Potter to John H. Irwin, that it is made, “ in consideration of one dollar,” and “ in pursuance, and fulfilment of a trust reposed in the grantor by the said Irwin,” is no notice of the prior existence of a trust for any other than for John H. Irwin himself. It carries with it, on the contrary, clear implication that the trust was for the grantee himself. This implication becomes stronger, when considered in connection with the other parts of the deed. It is a conveyance to “ Irwin and his heirs,” in fee simple, for the only proper use and behoof of the said Irwin and his heirs and assigns for ever.” How could this conveyance be “in pursuance and fulfilment of a trust,” unless the trust was for the benefit of Irwin himself? The trust is stated to be one which had been reposed by Irwin, not by any one else. There is, therefore, a presumption arising from this circumstance alone, that the trust was originally for the benefit of Irwin. If Elderkin Potter actually held in trust for another, and in violation of his duty conveyed the land to Irwin, he thereby made himself liable for the breach of confidence. No one, upon looking at the conveyance, would have the slightest suspicion that Mr. Potter had incurred such a serious liability, or had committed an act so disreputable, as the breach of a trust and confidence reposed in him. The deed therefore, instead of containing constructive notice of a trust in favor of the wife of Irwin, contained notice of a trust for Dr. Irwin himself, and that it was extinguished by the conveyance from the trustee to the cestui que trust.

There is nothing upon the face of the title or elsewhere to affect James Denniston with constructive notice of a trust for the benefit of Mrs. Irwin. It is not alleged that he had actual notice. His title, derived by the sheriff’s sale, under the judgment of Crossan v. Dr. John H. Irwin, is therefore a perfect title to the land, and he was entitled to a peremptory direction in his favor for all that was embraced in his sheriff’s deed of the 10th August, 1843. The treasurer’s deed to James Thompson, for the taxes of 1838 and 1839, with the possession under it, established a valid title to the other portion of the land in controversy. This view of the case is sufficient to support the decision below, and to show that the plaintiffs in error have sustained no injury by the opinions of the Court upon the other questions presented at the trial. Their consideration here is therefore unnecessary.

Judgment affirmed.


author: Lowrie, J.

text:
    The Commonwealth versus Brice.
    1. The principle that the public is not chargeable with the negligence of its officers in matters of account, even as against sureties, is applicable to the case of a county or to county commissioners. Remark in Glover v. Wilson, 6 Barr 293, commented on.
    2. Where a sheriff was liable to the county for fines and jury fees received by him, it was Held, that the sureties in his official bond were not discharged by reason, that after his account for the same had been settled by the county auditors and the balance due by him for the same ascertained, the county commissioners had given to him checks to an amount exceeding the said balance, which were paid to-the county treasurer without deducting the amount of his indebtedness.
    Error to the Common Pleas of Washington county.

    This was a case stated in which The Commonwealth of Pennsylvania for use of John Birch and others, commissioners of Washington county, were-plaintiffs, and James Brice and others, sureties of A. G. Marshman, late sheriff of Washington county, were defendants.

      The following case was agreed upon.
    A. G. Marshman was elected sheriff of Washington county in October, 1846, and gave bond in the usual form, dated 19th of October, 1846, with the defendants as his sureties. The books of the county auditors show, that at the annual settlement made on the first day of January, 1847, the said Marshman was indebted to the county, for fines and jury fees received by him, in the sum of $125.38. At the settlement made on the first of January, 1848, he owed $381.24; on the 1st of January, 1849,' $614.24; and on the 1st of January, 1850, $827.24, upon which there is a, credit of $492.19, made up of checks given by the commissioners to the said Marshman, after his term of office had expired, and retained by the treasurer of the county, by the direction of the commissioners of the county, endorsed on said checks and applied to his account, thus reducing the amount of the indebtedness to $335.05.
    The auditors’ books also show that up to the 1st of January, 1847, the said Marshman had drawn from the county treasury the sum of $38.46, upon checks drawn in his favor by the commissioners. From the latter period until the 1st of January, 1848, he had drawn the sum of $1158.54; from this time until the 1st of January, 1849, the sum of $712.29; and from the 1st of January, 1849, till the 1st of January, 1850, the sum of $1037.74; making the aggregate amount of moneys received by him from the county, $2952.68.
    The last fines and jury fees received by the said sheriff, and with which he is charged, were received by him on the 29th and 30th of August, 1849, and amount to the sum of $28.
    A statement, showing more particularly the amounts and dates of the several checks received by the said Marshman, and also the amounts with which he is charged upon the auditors’ books, is submitted herewith, and made a part of the ease stated.
    If upon this statement of facts the Court should be of opinion that the plaintiffs have any legal claim upon the defendants, then judgment to be entered in favor of plaintiffs for such a sum as they may be entitled to recover. But if the Court should be of a different opinion, then judgment to be entered for the defendants.
    Both parties reserving the right to be heard in the Supreme Court upon a writ of error.
    Opinion of the Court:—
    “ ‘The rule in equity is that where the creditor has the means of satisfaction either actually or potentially in his hands, and chooses not to retain it, but suffers it to pass into the hands of the principal, the surety can never be called on:’ 8 Ser. & R. 452; 13 Ser. & R. 159.
    “Sovereignties or governments and counties, must necessarily receive and disburse their revenues through agents. The rule established in respect to governments is, that the neglect of their agents will not create such an equity as will discharge sureties. To prove that their agents have been guilty of laches is to prove nothing: 1 Harris, Commonwealth v. Hahnlen. The only consideration then will be whether a county (which is a quasi corporation) is to be put on the footing of a government. The reason given for the exemption of a government would apply strongly to the case of a county. More than one in this Commonwealth, so far as revenue and population are concerned, are superior to some of the states of the Union, and employ nearly the same system in the collection and disbursement of revenue. But still a county is but a corporation, possessing none of the requisites of sovereignty. The exemption, therefore, to the rule in equity recognised in the case of The United States v. Kirkpatrick et al., 9 Wheaton 720, and 1 Harris, will not apply to a county or county officers. The facts in the case stated discharged the sureties.” Judgment for defendants.
    It was assigned for error: 1. The Court erred in deciding “ that a county was but a corporation, possessing none of the requisites of sovereignty, and that exemption from the rule in equity, recognised in United States v. Kirkpatrick et al., 9 Wheaton 720, &c., will not apply to a county or county officers.” 2. In deciding that the facts in the case stated, discharged the sureties. 3. In giving judgment for the defendants.

      Watson and Montgomery, for plaintiffs in error.
    The general principle is that laches is not imputable to the United States or to the state of Pennsylvania. It was said that this maxim is founded not in their extraordinary prerogative, but upon public policy, as otherwise the public interests might suffer: United States v. Kirkpatrick, 9 Wheaton 720; 1 Watts 54, Commonwealth v. Baldwin. There is no reason which in this respect is applicable to a state, which is not applicable to a county. That laches in public officers, however gross, does not discharge a surety in an official bond, reference was made to 9 Wheaton 720, above cited; 11 Id. 184, United States v. Vanzandt; 1 Peters 326; 1 Watts 54; 6 Barr 136, Commonwealth v. Johnson; 1 Harris 617, Hahnlen v. The Commonwealth.

      McKennan, Gow, and Murdoch, for defendants in error.
    When the creditor has the means of satisfaction in his control but suffers it to pass into the hands of the principal, the surety is discharged, at least pro tanto: 8 Ser. & R. 457; 2 Harris 54; 13 Ser. & R. 159; 1 Story Eq. sec. 326; or when any act has been done by an obligee that may injure the surety: 4 Vesey J. 833. Though the United States or the state of Pennsylvania may be excepted from the operation of the rule, it is by virtue of their sovereignty ; but it was contended that counties have no inherent sovereign power. In re Wilson, 4 Barr 164, it was decided that the neglect of the proper officers to give the notice required by statute, of a lien in favor of the Commonwealth, postponed its right. The Commonwealth is not interested in this case, and it is within the principle applied to the county in the case of Grlover v. Wilson, 6 Barr 293.
   The opinion of the Court was delivered by

Lowrie, J.

This suit is for the use of the county of Washington, against the sureties of a late sheriff, for fines and jury fees, collected by him. The defence is, that the county auditors had duly settled the sheriff’s account, and found the balance due by him, and that, after that, for claims of the sheriff against the county, the county commissioners had given him checks to an amount exceeding the balance claimed in this suit, and that the same were improperly paid at the treasury, without deducting the amount of his indebtedness.

The Court below held that the principle that the public is not chargeable with the negligence of its officers in such cases, even as against sureties (6 Bin. 292; 18 State Rep. 617; 9 Wheaton 736; Id. 188; 12 Id. 509; 1 Pet. 325), does not apply to the case of county officers; and that the sureties were discharged by the neglect of the commissioners to retain the money of the sheriff when they had an opportunity: 8 Ser. & R. 452; 13 Id. 159.

A remark was made in Glover v. Wilson, 6 State Rep. 293, that favors this distinction, but we do not know that it has received any other judicial countenance. Wilson’s Case, 4 State Rep. 164, would seem to impinge upon the general rule, but it does not tend to establish the distinction insisted on here.

The fact that a county has certain rights recognised in law as its own, does not sever it as a body from the state; but only distinguishes it in the state, and as part of it, and allows local officers to enforce, in the name of the county, certain rights and duties which otherwise would have had to be enforced in the name of the state. The institution of local divisions is merely a means of government, and counties and their officers are but parts of the machinery that constitute the public system. This form of administration is no more a division of the government, than is the allotment of particular localities, or particular functions, to what are usually called state officers.

Besides this, it is inherent in the very nature of the case that the sureties of an officer, who has been guilty of a breach of duty, cannot make any subsequent and consequent neglect of another officer the foundation of a claim that they should be discharged. If they could, then those who have engaged against the primary breach of duty, would he allowed to throw the liability for it upon him who committed the consequential one of neglecting to compel its correction, and to make him stand as if he had in this neglected a duty to the sureties of another officer, when he owed the duty, not to them, but to the public only. If the sheriff’s sureties are discharged, then the commissioners are liable, and thus they who owed no duty to the sureties and transgressed none, would he substituted to their liabilities as if they had. But it is not so. The commissioners are liable if the county, whose officers they are, loses by their neglect; but that cannot he, so long as the security taken for the performance of the sheriff’s duty is sufficient.

Judgment reversed, and judgment for the plaintiff for $412 and costs.


text:
    School Directors versus McBride.
    1. Though school directors should keep a record and their acts there appear, yet their unrecorded acts are not void. To record them is a duty to their constituents, but contractors with them cannot object to them merely on account of their not being recorded.
    2. Though a contract under seal be so defectively executed that it could not be enforced, yet if it be performed the dependent covenant cannot be repudiated.
    3. In pursuance of a resolution of a board of school directors, the president of the board as such, entered into an article of agreement on its behalf, under seal, with a person who contracted under seal to erect a school-house: it was Held, that after the house was built and the consideration stipulated nearly all paid, an action of covanant in the name of the school directors lay against the contractor on account of defects in the materials and construction of the building.
    Error to the Common Pleas of Armstrong county.

    This was an appeal entered 2d September, 1851, from the judgment of a justice of the peace, in a suit by The School Directors of Sugar Creek v. John McBride. In June, 1851, this suit was brought against John McBride to recover damages for not building a school-house according to contract, and judgment recovered for $100 and costs, from which the defendant appealed to the Common Pleas of Armstrong county. Narr. in covenant. Pleas non est factum, covenants performed absque hoc. 25th March, tried in Court, and verdict for defendant. 19th September, 1853, judgment on the verdict.
    At a meeting of the board of school directors, 22d September, 1849, the directors, being all present, unanimously authorized and directed Thomas Templeton, president of the hoard, to enter into an article on behalf of the directors, with John McBride for the building of a school-house in sub-district No. 12, in said township. In pursuance of those instructions, Thomas Templeton, as president, and on behalf of the board of directors, made an agreement .in writing under seal with the said John McBride, dated the 22d September, 1849, by which John McBride undertook to build for the plaintiffs a school-house, in said sub-district No. 12, as specified therein, and to finish it in May, 1850, for which the directors were to pay him $220. The article was lost, but it was testified that it was signed by the president of the board of school directors, and by McBride, with a seal to each name. McBride built the^house, and the directors having paid him, from time to time, the whole amount of the consideration, except about $20, brought this suit to recover damages, both on account of defective materials and defective work. ’ Evidence, was given on both sides as to the materials and workmanship. The Court instructed the jury that the recorded minutes of the school directors were the only evidence of their acts, and that their acts, as a board, could not be proved by parol.
    The charge was as follows:—
    “ As we understand the Supreme Court in Cline v. The Directors of Wayne, the recorded resolutions of the board are the evidence of their acts as a board. There being no such resolution shown in this case authorizing Thomas Templeton to contract with any one for the erection of this school-house, the directors were not a party to the agreement, and would not be liable to be sued on it.
    “ Inasmuch as the directors, if they were defendants, could successfully defeat the' action of covenant, we see no reason why the defendant in this case cannot. say he is not liable to be sued in covenant by a plaintiff who was not a party to the contract. The verdict must therefore be for defendant.”
    Such instruction was assigned for error.

      Phelps and Smith, for plaintiff in error.
    In the case of The School Directors v. Cline, the question was not raised whether a, contract made by the school directors was valid in the absence of a recorded resolution authorizing it to be made, but whether any such contract as alleged, ever was made. There was no recorded resolution nor parol instructions by the board, authorizing Cline to build the house. And the Supreme Court say, “ The directors authorized the building committee to have a school-house erected ; and possibly under this resolution the committee might have so acted as to justify, an implication of a contract by the board, to pay for the building; but we discover no evidence of an express contract. But only two out of four of the committee acted in the matter, and Cline was one of them; certainly the board did not authorize him to bind them by a contract with himself.” The question was before the Court in Gearhart v. Dixon, 1 Barr 224.
    Where there is no recorded evidencé of the appointment of a collector of school tax, it may be proved by parol: Barnett v. School Directors, 6 W. & Ser. 46. It is competent to prove that the collector represented himself as collector, received the school tax as such, and was in fact collector of the township: Id. The same principle is decided in the case of The Proprietor of the Canal Bridge v. Gordon, 1 Pick. 304, and McGill v. Kauffman, 4 Ser. & R. 317, and The Bank of the United States v. Dandridge, 1 Wheaton 64. These authorities appear to settle the law that School Directors when acting as a board, are bound by all of their acts as such, without regard to the kind of proof, provided it be the best the nature of the ease admits of; whether it be by parol or by a recorded resolution on their minutes. This was the only question raised, or point on which the cause was made to turn in the Court below; and it would therefore seem that the Court erred in their charge to the jury.

      Lee, for defendant in error.
    It was said that the instrument was not a deed between the School Directors and McBride, as the former have no common seal. It was the personal deed of Templeton and McBride, 8 Mass. 162; 15 Pick. 428. The addition of president, &c., does not alter the character of the instrument: 21 Wend. 101. The deed must be binding on both or neither: 4 W. & Ser. 221. 1 Ch. Pl. 4, cited: “It is an inflexible rule that if a deed be inter partes, that is, on the face of it expressly describe and denote who are the parties to it (as between A. of the one part and B. of the other part), C. cannot sue thereon although the obligation purports to be made for his sole benefit.” “In such case the right of suit is constituted and must be governed by the deed; and this rule applies although the covenant be with the third party C. (whose benefit is the declared object of the deed) and the person who is party to the deed jointly:” 1 Ch. Pl. 3; Strohecker v. Grant, 16 Ser. & R. 237; Hornbeck v. Westbrook, 9 Johns. Rep. 73; Same v. Sleight, 12 Johns. 199. In view of these authorities it would not avail the plaintiffs to have shown that they were the covenantees in the deed, unless they were also parties. Much less will it do that Thomas Templeton was a party to the deed and signed it as president of the board of directors, because that, as before shown, would leave it the deed of Thomas Templeton, and the covenants in it personal to him, even if the covenants were to build a school-house, which would be for the sole benefit of the directors.
    It is not pretended that Templeton had any specialty authority from the directors to seal the contract in question. It would therefore be wholly inoperative against them as a deed for that reason.
    Probably the only form of action which could be sustained on this contract would'be in the name of Thomas Templeton for the use of the directors.
   The opinion of the Court was delivered by

Lowrie, J.

This is an action for a breach of a covenant to erect a school-house, and the pleas are non est factum, and covenants performed. In such a ease it is irrelevant to inquire into the validity, as covenants, of the agreements to be performed by the plaintiff. Let it be assumed that there was no authority to seal the instrument on the part of the plaintiffs, then it would stand as their simple contract if the authority went' that far. But a simple contract on one side is a sufficient consideration for a covenant on the other, and in strict law a covenant is binding without any consideration. And even if the contract on the part of the plaintiffs were so defective that it could not be enforced, yet if it was performed the dependent covenant of the defendant could not be repudiated.

But the Court below misunderstood the opinion in the case of The School Directors v. Cline, decided at the last term. We said that school directors “ are a public body, bound to keep a record of their proceedings, and all their acts should appear on record,” and this is true: but this is not a declaration that their unrecorded acts are void. It indicates the duty of the directors to their constituents, and not to those with whom they are contracting—a duty the neglect of which may be of serious consequence to the district or to the directors themselves, but upon, which contractors with the directors do not rely, and by which they.are not intended to be affected, and to the neglect of which they cannot object. .

The administration of the public business relating to roads, poor, and schools, can always be best performed by township officers ; and, unaccustomed as many of them are to the forms of conducting the business of public bodies, their acts must be treated as valid when found to be the result of joint consultation, even though the form of recording them has been omitted.

Judgment reversed and new trial awarded.