text:
    Sellers & Nicols versus Jones.
    1. In an action of assumpsit on book account, in addition to the pleas of non assumpsit and payment with leave, and set-off, it was pleaded specially, that the defendant had delivered to the plaintiffs three promissory notes of third persons, payable to the defendant or his order—that the defendant endorsed the said notes and delivered them to the plaintiffs, who accepted and received them for the amount of the said notes. The notes were payable in iron metal. There was no proof that the plaintiffs had agreed to accept the notes in payment or to assume the duty of collecting them, it being alleged by the plaintiffs that they were not left even as collateral security, but merely for the convenience of the defendant that the metal in which they were payable might be received by them and accounted for by credit on the book account. The makers of the notes failed, the notes being unpaid. It was Held, that it was error in the Court to charge the jury that “under the facts in evidence, ‘assuming their truth,’ the opinion of the Court was that the amount of the notes ought to be credited, and that the ‘ verdict should be rendered accordingly.”’ The nature of tie transaction was a question of fact, and should have been submitted to the jury.
    2. If the notes were received as collateral security or for the purpase of collection, the holders were bound to use ordinary diligence in. their collection, and if the notes were lost for want of such attention they would be liable to the owner to the extent of the injury; but if they were left with the holders merely that they might receive the metal, in which they were payable, when it was delivered, they would be liable to account only for the amount received by them.
    Error to the District Court of Allegheny county.

    This was an action of assumpsit by Francis Sellers, and John Nicols, partners, v. Jenkins Jones. It was brought to recover $403.69, claimed as a balance due on a book account. A bill of particulars amounting to $607.03, was filed, on which credits were allowed to the amount of $203.34, leaving a balance of $403.69.
    It was alleged in defence, that the defendant was entitled to a credit of $275, being the amount of three' promissory notes of J. & J. Bell, which were payable on 1st. of May, on 1st of August, and on 1st of November, 1849, and were each payable in metal, at the price “Washington Furnace metal sells at on credit,” &c.
    The pleas were non assumpsit, and payment with leave, &c. Afterwards two' special pleas were filed. In one of them it was alleged that the said notes called “ promissory notes” were endorsed by the defendant and delivered to the plaintiffs who accepted them for the said sum of $275; in the other they were called “notes in writing,” and it was alleged that before the notes were payable, the defendant, on account of goods, &c. delivered and to be delivered to the defendant to their account, endorsed and delivered them to the plaintiffs who accepted them, &c.
    The plea of set-off was added.
    The pleas were severally traversed and issue was joined.
    On the trial the notes were offered in evidence on the part of the defendants, and they were objected to on the ground, 1. That they were not evidence under the pleadings. 2. The notes, so called, are due-bills, payable in iron. 3. They were delivered to plaintiffs prior to the. date of the account. The objections were overruled, and exception was taken.
    Some letters of J. Jones were given in evidence, for a statement of which see the opinion in this ease.
    On part of the plaintiffs four points were submitted: The first was to the effect that the notes were “property orders” or notes payable in goods, and were not evidence under the pleas of payment or set-off, without proof- of consideration. 2. That to charge the plaintiffs with the amount of the notes, as payment for goods, &c., the defendant must prove an agreement to that effect; that such agreement was not to be presumed from the mere fact that the notes remained in the possession of the plaintiffs. 3. That if the notes were deposited without any agreement of plaintiffs to receive them as payment, they cannot be set off in this action, and that plaintiffs were under no obligation to pursue the Bells. 4. That an assignment of the orders was not to be construed as payment, unless the metal was delivered to the plaintiffs, &c.
    It was stated that the firm of J. & J. Bell failed about 1st August, 1850, and that a few days thereafter a return of the notes was offered, but they were refused.
    Forward, J., charged, inter alia, as follows:—
    “Were the notes of J. & J. Bell to Jones, received by plaintiffs as cash ?
    *“The endorsement of Jones in blank might import an actual transfer; but his letters to plaintiff of May 1 and July 12, 1849, would lead us to think that these notes were endorsed to plaintiffs for the purpose of enabling them to demand and receive the sum mentioned therein. In other words, that plaintiffs were- the mere agents of Jones, and not purchasers of his paper. Taking this to have been the true relation of the parties, the plaintiffs were chargeable with ordinary diligence in the agency aforesaid, and are liable for the omission of it, unless it. be shown that the Bells were insolvent,* a fact which cannot be fairly-alleged, inasmuch as their failure in business did not take place until July or August, 1850. * * * * The notes in question were clue respectively 1st May, 1st August, and 1st November, 1849. The time of their transfer and delivery to plaintiffs does not certainly appear. Judging from the testimony, I infer that they were in plaintiffs’ hands before the maturity of either of them. *If received by plaintiffs, before their maturity, the failure of the Bells to remit the metal, ought to have been communicated to Jones without unnecessary delay, or in default of such notice the plaintiffs should have instituted suits against the Bells, and used reasonable diligence to enforce a compliance with their contracts, or obtain damages for their non-performance.* It appears that a part of the iron due on the first note was received by plaintiffs and a credit entered in favor of Jones on their book for the amount.”
    * * * * * * *
    He added, *“ Upon the facts in evidence, assuming their truth, my opinion is, that the amount due on the notes referred to, ought to be credited to the defendant, and that your verdict should be rendered accordingly.”*
    He observed that it would be perceived that the points were answered in the charge, and needed no further attention.
    Verdict was rendered for the plaintiffs for $128.69. Subsequently a motion for a new trial was made, and a mistake being alleged as to a credit being omitted, the amount of the verdict was enlarged, by consent, to $219.68.
    The 1st, 2d, and 3d assignments of error were to the parts of the charge between asterisks. 4. In taking the facts from the jury in the portion of the charge to that effect. 5, 6, 7, and 8. That the Court erred in not charging as requested in the 1st, 2d, 3d, and 4th points; and the 9th, was to the refusal to charge specifically on the points.

      Shinn and Hepburn, for plaintiffs in error.
    Rogers, for defendant in error.
   The opinion of the Court was delivered by

Knox, J.

The plaintiffs are merchants of the city of Pittsburgh, and bring this suit to recover from Jones a balance due for goods sold and delivered.

The defendant does not deny the correctness of the plaintiffs’ account, but alleges that he is entitled to a credit for the sum of $275, being the amount of three notes made by J. & J. Bell, payable in pig metal to the order of the defendant, and by him transferred to the plaintiffs. Whether these notes were properly chargeable to the plaintiffs, was the only matter of contest upon the trial.

The learned judge who presided in the District Court, instructed the jury that the facts given in evidence, assuming their truth, would charge the plaintiffs with the amount of the Bell notes, and the jury found accordingly.

To the charge of the Court and the admission of the notes in evidence, under the pleadings, nine distinct errors are assigned. It is difficult to perceive what is gained by dividing and subdividing propositions, so as to make a great number of points upon one or two simple questions, which being plainly put, and distinctly answered, present clearly to the mind the matters at issue.

Everything in dispute in this case may be embraced in these questions: Was the defendant’s evidence properly admissible under his pleas ? If properly received, did it make out his case ?

There was a general plea of set-off, and two special pleas. One of which averred “ that as to said sum of $275, J. & J. Bell made their three several notes in writing, and delivered the same to the defendant, by which said notes the said J. & J. Bell promised to pay the defendant or his order, at certain times and days, &c., to the amount of $275; and that the defendant afterwards, and before the time appointed by the said notes for the payment thereof, to wit, on the day of April, 1849, for and on account of goods and merchandise, &c., delivered, and to he afterwards delivered to the defendant to the amount of the said $275, endorsed said notes and delivered the same to the plaintiffs, who accepted and received said notes,” &c., &e. The other special plea was substantially the same, except it mentioned the Bell notes as promissory notes.

There was also a plea of payment, with notice of special matter. We cannot say that the evidence offered by the defendant should have been entirely rejected. Taken together, it proved that some time in the spring of 1849, Jones transferred to plaintiffs, by blank endorsement, three notes signed by J. & J. Bell, in all amounting to $275, payable in pig metal; that a small portion of the metal was received, and credited to Jones; that the residue was unpaid, the makers of the notes having failed in business in July or August, 1850; and that in August, 1850, an offer was made by the plaintiffs to return the notes to the defendant, who refused to receive them. On the 1st of May, 1849, Jones wrote to Sellers, as follows:—

“ Dear Sir,—I am going to write you a few lines concerning the notes I left in your care. I have seen Mr. Bell, and I told him to deliver you the metal, a,nd I gave him your card, and he said it was all right, and I want you to attend to them and turn them into money .as quick as you can, to the best advantage you can, and let me know inside of two weeks whether you get them or not.”

Again, on the 12th July, 1849, Jones writes to Sellers and Nicols,—

“Sirs,—I have been informed by Mr. Bell that you have received the first note in metal, and I would like to know how you and him got along. I wrote you once before, but I never got any answer. Wish if you will write a few lines, so I will know.”

There was no answer to these letters in evidence; but on the 23d March, 1850, Sellers & Nicols write to Jones, saying:—

“We wish you to stir up the Bells to pay up their notes. If they do not, we shall enter suit the first opportunity. They have never said a word to us on the subject.”

Under this evidence the jury were instructed that the defendant was entitled to a credit for the amount of the notes. In this we think there was error. It could hardly be pretended, in view of the facts proved, that the notes were received as payment of a preexisting debt, or that there was an absolute sale of. them by Jones to the plaintiffs.

They must then have been left as collateral security to be credited when collected, or merely deposited for the purpose of receiving the metal when delivered. The character of the transaction, under the evidence, was a question of fact for the jury : as was also the diligence of the plaintiffs in collecting the notes, and whether the amount was lost through their neglect.

If Sellers & Nicols received the notes as collateral security, or for the purpose of collecting the same, they were bound to use ordinary diligence, and if lost for want thereof they would be liable to Jones for the injury sustained by reason of their negligence; but if the notes were left with them, in order that they might receive the metal when delivered in Pittsburgh, they could only be held to account for the amount actually paid to them.

Judgment reversed and new trial awarded.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    McCabe’s Appeal.
    1. One who has no interest in the trust estate, has no right to require a settlement of the account of the assignee of it.
    2. One of the creditors of an assignor subsequently obtained judgment against him, and levied on real estate which had been acquired by him after the assignment; whereupon, a third person, to whom the said real estate had been conveyed by the debtor in trust for his own wife and children, paid the judgment and- received a transfer of it. It appeared that an individual was willing to have bid at sheriff's sale, for such subsequently acquired property more than the amount of the judgmeñt.
    It was Reid, that as the proceeding against the property, under the judgment, was on the allegation that the conveyance of it was void as against creditors, the assignment of the judgment gave to the assignee of it no interest in the trust fund.
    3. A party to a conveyance which the law treats as fraudulent, cannot buy off a creditor who is pursuing the property conveyed, and then use the claim of the creditor in order to reimburse himself the money paid out of other property previously assigned by the debtor for the use of his creditors.
    Appeal from the decree of the Court of Common Pleas of Indiana county.

    R. B. McCabe, assignee of Andrew W. Porter, and Robert W. Porter,, appealed from the decree of the said Court, on his account. An appeal was also entered by I). Stanard.
    Andrew W. Porter, and Robert W. Porter, by deed dated 8th June, 1839, assigned all their estate, real and personal, to Richard B. McCabe, in trust for the payment of their creditors. The deed was recorded; and the appraisement exceeded $18,000. McCabe, the assignee, filed an account which was confirmed in September, 1841, showing a balance for distribution of aboye $3000. Distribution was made.- .
    On 10th August, 1843, Andrew W. Porter and wife, for the consideration of $10, conveyed to D. Stanard, in trust for the wife and children of the said A. W. Porter, 1650 acres of land. This real estate appeared to have been acquired after the assignment.
    A. & J. B. Stevenson, creditors of A. W. & R. W. Porter, had an action brought in their name against A. W. & R. W. Porter, to May Term, 1846, in the Common Pleas of Venango county. R. W. Porter was not summoned. On 30th November, 1848, judgment was recovered against A. W. Porter for $1147.87. Pi. fa. was issued to February Term, 1849, and a levy was made on one of the tracts of land embraced in the deed of trust, containing 250 acres. Vend. exp. to August Term, 1849. On 18th May, 1849, D. Stanard had paid to one of the attorneys of plaintiff $200, for which a receipt was entered on the writ; and afterwards, Stanard having paid the further sum of $996.19, the balance of the judgment, it was assigned to him by the counsel for plaintiff, to be proceeded in for his use, at his own risk, &e.
    The testimony of a witness was taken, who deposed that he would have bid $2000, on the 18th May, 1849, for the land levied on, if the sale had not been stopped.
    Afterwards an application was made to the Common Pleas of Indiana county, by or on the part of D. Stanard, for a citation to McCabe, ithe assignee, to render an account; and the supplementary account, in question in this case, was filed in pursuance of the citation issued.
    It was intimated on the part of the assignee, that no other creditor, or either of the assignors, joined in asking for the citation.
    Exceptions to the account were filed on behalf of Stanard, and an auditor was appointed, who reported a balance in the hands of the assignee of $2125.69-f. Exceptions were filed, and at September Term, 1851, the Court decreed a balance of $381.32J, to be in the hands of the accountant. From such decree this appeal was taken.
    Exceptions were filed in this Court, on the part of the appellant, and also on the part of D. Stanard. The .second exception on the part of the accountant, was to the effect, that the Stevenson judgment was extinguished by the payments by Stanard, and could, not be legally used in procuring the proceeding in this matter.

      Ban7cs, for Stanard.
   The opinion of the Court was delivered by

Lowrie, J.

A. W. & R. W. Porter, in 1839, made a general assignment to McCabe for the benefit of creditors. In 1841 Mc-Cabe settled a partial account of the trust. He settled no other, and was called upon for none until 1849, when, at the instance of D. Stanard, he was cited by the Court to settle a final account, and thereupon presented the one which is the subject-matter of this proceeding. If Stanard has no interest in the trust, he has no right to call for an account, and this objection might have been raised to the citation, but it was not. The account was filed and due notice thereof given, and therefore all persons are held to have assented to its correctness who have filed no exceptions to it. Stanard alone filed exceptions, and thereupon the account was referred to an auditor, and before him the objection was raised that Stanard had no interest in the trust estate, and therefore no footing in Court. If this is true, the account stands unexcepted to and ought to be confirmed.

The following are the parts on which the objection rests: Some years after the assignment the assignors acquired valuable real estate by the death of their father; and Andrew Porter conveyed his portion of it, or a part thereof, for a nominal consideration, to Stanard in trust for his, Andrew’s, wife. One of the creditors, entitled under the assignment, pursued his claim to judgment and execution, and was about to sell the property thus held in trust for Andrew’s wife, when Stanard paid the judgment and had it assigned to himself. It further appeared that there were bidders on the ground ready to buy the property as Andrew’s at a price exceeding the amount of the execution. Does the assignment of the judgment to Stanard, under such circumstances, give him an interest in this trust fund ?

It is very manifest that the seizure of the property as Andrew’s, proceeds upon the assumption that the conveyance to Stanard was void as to creditors, and that on no other assumption would a title under that process have been worth anything. The property in the sheriff’s hands was offering for sale, and there were bidders on the ground ready to buy the right to claim the property from Stanard, on the ground that his title was void as against creditors, because of its being taken in disregard of their rights. The creditor in that proceeding had undertaken to show that the conveyance to Stanard was of this character, and he, to avoid this, paid the judgment, and under the form of an assignment of it, seeks to stand as a creditor himself, and to take a share of the funds held in trust for creditors, if any remain.

Is this right ? In other words, may a party to a conveyance, which the law treats as fraudulent, buy off the creditor who is offering to expose the defect, and then use a creditor’s remedy, in order to reimburse himself for his purchase, out of other property dedicated to creditors ? This question so plainly demands a negative answer, that it is hopeless to attempt to make it plainer by any course of reasoning. When a wrong is done to several persons, the amends made to one of them can hardly be charged against the others.

If Stanard had paid the judgment, and then asked to be substituted in equity to the plaintiff's rights for such a purpose, it would not have been allowed; for an equity cannot be erected on an illegal basis: and surely the formal assignment, obtained as this was, can give no better right. True enough, the creditor had a right to abandon the proceeding against the land, and fall back upon the trust fund ; but that is nothing like this case. Possibly there are covenants in the conveyance to Stanard that may give him a remedy against the grantor; but, as against creditors, they are as void as the conveyance, and can give him no right to any form of substitution, by which he shall stand on a footing with the creditors whose rights the conveyance was calculated to embarrass.

True enough, the conveyance was good as against the grantor, and possibly therefore the payment of the lien made Andrew the debtor of Stanard to that amount; but that debt was void as to creditors prior to the conveyance, and therefore gave no right to the fund assigned for them. And, having no interest in the fund, he could have no right to any surplus that might remain after the payment of the creditors. That would be ordered to be paid to the assignors, and not -to any subsequent creditors, unless they had obtained a lien on it by attachment or otherwise. That would be Porter’s right of action against the assignee; but his creditors at large could not sue for it, or claim to ascertain it by excepting to the assignee’s account, any more than any other creditor could sue for a debt due to his debtor. Until they obtain an interest in the surplus, or a lien upon it by assignment or by legal process, they can have no actionable right in relation to it.

January 19, 1854. This cause came on to be heard at the September Term, 1853, of this Court, on appeals by Daniel Stanard and by R. B. McCabe, from tbe decree of the Court of Common Pleas of Indiana county, settling the final account of the said McCabe, as assignee of Andrew W. Porter and Robert W. Porter, for the benefit of-creditors, and was argued by counsel; and now on consideration thereof it is ordered, adjudged, and decreed that the decree of the said Court of Common Pleas be and is hereby reversed, annulled, and held as void; and this Court, now proceeding to make such decree in the premises as the said Court of Common Pleas ought to have made, do order, adjudge; and decree that the exceptions filed by the said Stanard to the said final account be ' and hereby are dismissed at his, the said Stanard’s, costs, and that the said final account of the said McCabe be and the same is hereby absolutely confirmed, and the record remanded.


author: Black, C. J.

text:
    Cole versus Bolard.
    1. This Court will not reverse for an error which is immaterial.
    2. The plaintiff claimed the land in opposition to his own deed, in its terms absolute, but contending that it was executed merely as security for a debt. The case was submitted to the jury with instructions that the' plaintiff might recover, 1. If proved that the deed was intended by the parties to it as a mortgage. 2. That the defendant had purchased from the grantee with notice of the plaintiff’s right to redeem; and 3. That the debt had been paid before suit brought:

      Held, that though it was not strictly correct to add the third position as a condition on which the recovery depended, for if the payment had been made subsequent to the suit there might have been a recovery subject to the payment of costs, yet as the allegation made in the case was of payment before suit, and none was proved or alleged to have been made after suit brought, the error was immaterial.
    3. Even though the defendant, and his vendor the grantee in the deed, knew that the deed was a mortgage, and yet wilfully denied it, the plaintiff, the grantor therein, could not recover without proving the payment of the debt which it was alleged by him to be intended to secure. By such denial the defendant did not forfeit his claim to the money due by the plaintiff.
    4. Where there is some evidence of a material fact it is the duty of the Court to submit it to the jury.
    5. It appeared that upon a transcript, filed in the Common Pleas, of a judgment against the plaintiff in the suit trying, confessed before a justice of the peace for $146.96, there was entered a credit for $100 (being the amount of the consideration mentioned in the deed in question), it being expressed in the receipt to have been received in land, and the receipt was entered thereon for several years before the trial of this case, and though execution had been issued, it was not shown by the plaintiff in the ejectment trying, that the credit was not marked on the execution also:

      Held, that it was not error in the Court to charge that if such credit were entered with the assent of the plaintiff, or without his objection, if he knew of its entry, it was a strong circumstance against his claim to the land, on the alleged ground that the deed was intended as a mortgage; and though the evidence of the plaintiff's knowledge of the entry on the transcript was not clear, yet if there was some evidence of it, it was the duty of the Court to submit it to the jury.
    Error to the Common Plens of Crawford county.

    This was an action of ejectment by Milo J. Cole v. William L. Robinson, for 21 acres of land.
    The plaintiff traced the title from IT. J. Huidekoper through several persons down to himself, and rested.
    On part of the defendant was then shown the record of a deed for.the land from Cole, the plaintiff, and his wife, to William L. Robinson, dated December 19, 1848, and recorded on 20th January, 1849. Also a deed with general warranty, by Robinson to Bolard, the defendant, dated 16th November, 1850, consideration therein stated to be $300. Defendant rested.
    On part of the plaintiff it was then attempted to prove that the deed by the plaintiff to Robinson was executed by way of security for indebtedness by Cole to Robinson; and evidence was given in order to show that the debt which it was alleged that the deed was designed to secure had been afterwards paid.
    On the part of the defendant was then given evidence to explain certain of the testimony given on part of the plaintiff, and to disprove the same. As a part of it there was given in evidence a transcript of a judgment for $146.96, confessed by Cole and one Rathbon, who had been his partner, in favor of Robinson, before a justice of the peace, on 18th December, 1848. The transcript was entered to November Term, 1850. On it was a receipt as follows:
    “ Received on the above judgment one hundred dollars in land, of Milo J. Cole.” ' Dated December 19, 1849, and signed, C. Robinson & Son.
    It was alleged on the part of the defendant that the date on the receipt was a mistake; that it should have been 1848, instead of 1849, and if so, it corresponded with the date of the deed by Cole to Robinson. The justice before whom the judgment was confessed, was called, and testified that he wrote the deed from Cole to Robinson; that he thought the receipt was entered at or within a day or two of the time the deed was given, but that “ he had no recollection when it was entered, or whether Cole or Rathbon, or who, was present.” It was contended on part of the defendant, that the deed by Cole to Robinson was designed as an absolute deed, and that the receipt was dated in 1849 by mistake.
    On part of the plaintiff various points were proposed: The first was to the effect that if the deed to Robinson were given as secu
      rity, and that defendant had notice of it, plaintiff by paying this indebtedness could recover. The second was to the effect, that if the land were conveyed by Cole to Robinson as security, and the defendant, knowing such to be the case, took the conveyance from Robinson, in disregard of Cole’s rights, both of them denying the defeasance, that in such case the plaintiff was entitled to recover without proving payment of the debt which the deed was intended to secure.
    The 3d and 4th were to the effect that the judgment referred to was no evidence of settlement between Cole and Robinson; or if it were evidence, that it was not conclusive.
    Galbraith, J., referred to the jury the question whether the deed to Robinson was given as security or was intended to be absolute ; also that if the receipt on the transcript was made by an arrangement with the plaintiff, or without his objection if he knew of it, it would form a very strong circumstance against the plaintiff in this cause; but of the truth of this the jury must judge.
    He further charged, that the plaintiff in order to recover must show,
    1. That the deed was given as security for the payment of the debt alleged, which would make it a mortgage.

      2. That the debt which it was designed to secure had been paid before the bringing of the ejectment; and
    3. That Bolard, the defendant, had notice of this claim before he purchased from Robinson.
    The plaintiff’s first point was answered in the affirmative with this qualification, that the payment of the debt must be shown to have been made before bringing this suit, or payment since with costs up to the time of payment; but, he said, this last question was not raised in the case, there being no evidence of payment since the suit was brought. The 2d, 3d, and 4th points were answered in the negative.

    February 27, 1853, verdict was rendered for the defendant.
    There were various assignments of error. The second was, that the Court erred in their answer to the plaintiff’s second point. The seventh was, that the Court erred in their charge to the jury when they say in speaking of the receipt on the judgment confessed in 1848, by plaintiff and Rathbon, that if that receipt was made by an arrangement with the plaintiff or without his objection, if he knew of it, it would form a very strong circumstance against the plaintiff in this cause; but of the truth of that you must judge.

      Brigden, for plaintiff in error.

      Church, for defendants in error.
   The opinion of the Court was delivered by

Black, C. J.

The plaintiff claims the land in opposition to his own absolute deed. He conveyed it to one Robinson, who sold it afterwards to the defendant. But the plaintiff produced evidence to show that his conveyance to Robinson was a mortgage to secure the payment of a debt.

The evidence was somewhat contradictory throughout. The Court left the case to the jury, with instructions that the plaintiff might recover if he had proved, (1) that the deed was intended by the parties as a mortgage; (2) that the defendant had purchased from Robinson with notice of the plaintiff’s right to redeem; and (3) that the debt had been paid before suit brought.

It is very plain that the two first of these facts were absolutely necessary to the plaintiff’s case. It was not strictly correct to add the third as a condition upon which his recovery depended; for, if the debt was paid at any time before trial, he was entitled to a verdict conditioned that he should pay the costs before taking out execution, as in Hewitt v. Huling, (2 Jones.) But the error was immaterial, and did no harm. There was no evidence or even assertion of any payment made after the bringing of the suit. We never reverse on a mere abstraction.

There are seven specifications of error. The first is, that an incompetent witness was permitted to testify for the defendant. Hot only is the specification unaccompanied by the substance,of the bill of exceptions, but the bill itself is not to be found in any part of the paper-book. It does not even appear that the witness was objected to. Five more alleged errors are set forth, with an equal and even greater disregard of the rule. We propose to consider the second one (irregular though it be), because it refers to the important point in the cause, and was supported by an argument so plausible that we at first inclined to reverse the judgment on that ground. We shall also notice the seventh, because-it is properly assigned and must be attended to.

The plaintiff requested the Court to charge, that if the defendant and his vendor knew that the deed was a mortgage, and yet wilfully denied it, then the plaintiff could recover without paying the debt for which he had pledged the land. The refusal of the Court so to instruct the jury is the error complained of in the second specification.

In our opinion the plaintiff attaches too much importance to the false assertion which he attributes to the other party. One who wilfully misleads another by a false declaration, cannot afterwards have any advantage from the truth as against the party misled. Since somebody must suffer, it is right that he should take the consequences who was guilty of the offence. But there is no rule of law by which a man can be deprived of his rights as a penalty for uttering, in loose conversation, a mere naked lie, by which he gained no advantage for himself, and on which nobody else acted. The cases cited by the plaintiff do not sustain his proposition. It certainly does not strengthen his case to show that a deed procured by fraud (2 Barr 14), or changed in a material point after delivery (2 Barr 191), is void. Nor is it more to the purpose that a person who gives notice of his title at a sheriff’s sale, is confined to the same title afterwards (2 Barr 313), or that one who becomes a purchaser at an under price by means of an actual fraud, cannot hold the land against the original owner until he is refunded what he paid (2 Watts 66). The rule that one who alters a deed can claim nothing by it, is necessary to prevent the dangerous insecurity which would result from -allowing written documents to be tampered with. In each of the other cases referred to, some species of imposture practised by one person influenced the actions of others. Falsehood is not itself fraud, but only the means whereby frauds are sometimes perpetrated. The doctrine that a tenant for years forfeits his estate by refusing to pay rent and denying the title of his landlord (8 Watts 54), appears at first blush to have a somewhat closer analogy to the point before us. But it is based on the fact that every lease contains a covenant, express or implied, that the lessee will do nothing to impugn the lessor’s right (8 W. & Ser. 231), and the estate for years is held on that condition (Ib.). It is not founded on any notion that the tenant must answer for the accuracy of all his plantation talk. Nothing short of an act, which sets his landlord at defiance, will work a forfeiture. On the whole we think it was right to determine this ease according to the facts as they actually existed, although the plaintiff may, at some time, have stated them untruly. False claims are often made, false pleas are put on the record, and false defences are sometimes set up in the face of the Court. They are all odious to be sure, and fit only to excite abhorrence and contempt. But still there is a locus joenitentice; and he who finally elects to stand by the truth may count on its protection, if he can make it manifest.

The seventh error specified (or rather enumerated) on the record remains to be disposed of. The defendant alleged that the deed was given to Robinson, not as security for, but in satisfaction of, the debt due him by the plaintiff. A credit for the precise sum mentioned as the consideration in the deed is proved to have been given on the debt, and this credit is said, in the receipt, to be for land. The Court told the jury, that if this was done with the assent and knowledge of the plaintiff, it was a strong circumstance against him. And so it was. But the complaint is that there was no evidence that the plaintiff knew of the receipt. Though the evidence is not clear, there was some which it was the Court’s duty to submit. The credit was on the record of the Common Pleas, to which of course the plaintiff had access; it was in immediate connection with a judgment to which he was a party; it was there some time, perhaps several years, before the trial of this cause, and it was never objected to. An execution was issued on the judgment, but we are not told for how much, and as every doubtful fact which does not appear is presumed to be against a plaintiff in' error, we must take it that the same credit was on the execution and that he saw it. We cannot say there was error in leaving this to the jury.

There is nothing in the other points which gives them a claim to be noticed by us, after being waived by the plaintiff in error.

Judgment affirmed.


author: Lewis, J.

text:
    Fraley versus Steinmetz.
    1. In a proceeding by scire facias on a mortgage, an affidavit of defence may be made by one who, at the time the scire facias issued, claimed the premises by purchase of the same at sheriff's sale held under a judgment against the mortgagor, but who had afterwards sold the same, covenanting against liability under the mortgage. He has a right to be heard not only on account of his own interest, but on behalf of his vendee, the terre tenant, though neither of them were served with the process.
    2. In the affidavits of defence by the said purchaser it was alleged that the premises having been conveyed to him by the sheriff, by deed of a date which was subsequent to an execution on a judgment for the mortgage debt, and that he had afterwards sold the premises, with a guaranty against liability for the mortgage debt. Also, that a judgment had been entered on the mortgage bond of $1000, and that on such judgment an execution had been issued, by virtue of which the plaintiff levied upon and sold personal property of the defendant, the mortgagor, it being the first execution delivered to the sheriff; that the sheriff paid to the attorney in fact of the plaintiff's attorney and of other attorneys above $2000; that the said execution was for the same debt for which the mortgage was given, and that the mortgage debt lias been paid. In a supplemental affidavit it was, inter alia, stated that he had sold the premises at a date which was subsequent to the issuing of the scire facias, and that the defence made was on behalf of the deponent and of his vendee:
    It was Held, that a sufficient defence, if established, was stated in the affidavits.
    3. It was not essential that the said purchaser should have made a formal application to be made a party to the record. Such a desire should have been considered as implied’in his affidavits.

      Error to the District Court, Philadelphia.

    This was a scire facias issued on 2d October, to September Term, 1852, in favor of Daniel Steinmetz v. Peter B. Fraley, on a mortgage of Fraley to Steinmetz. The seize facias was returned “ made known.” The name of counsel was marked on the record opposite to the name of Fraley, the defendant. The scire facias was upon a mortgage dated-- —, 1850, from Fraley to Steinmetz, reciting a bond for $1000, for security of which the mortgage was given.
    October 22, 1852, an affidavit of defence was made by Patrick Levy, which was filed. In it was stated that he had a just defence to the plaintiff’s demand; that the premises had been conveyed to him by William Deal, sheriff, by deed acknowledged in open Court on the 17th day of January, 1852, they having been sold under execution against the defendant Fraley, to whom they at the time belonged, and that the affiant had since sold the same, with a guarantee against liability for the mortgage. It was further stated as follows:—
    A judgment was entered by the plaintiff, by virtue of the warrant of attorney accompanying the bond, for $1000, for the better securing of which the mortgage now sued on was given, as by reference to the said mortgage will appear; upon the said judgment an execution was issued, by virtue of which the sheriff levied upon certain goods and chattels of the defendant Fraley, and sold them under this execution, which was the first delivered to the sheriff, (for there were others which came to the sheriff against said defendant Fraley, before the time of sale), and another having the same attorney for plaintiff, the two amounting to about $2600, or less. The sheriff paid to I. Hazlehurst, attorney in fact for A. S. Letchworth (who was plaintiff’s attorney), and for others, $2153.29, less costs, &c., and took receipt therefor, a copy of which is herewith exhibited as taken from the sheriff’s docket, and the execution therein described is for the sanie debt for which this mortgage was given, and this suit is brought. He says that the debt now sued for has been paid; all of which he is advised, and believes he can fully prove upon trial.
    Signed, Patrick Levy.
    The receipt of I. Hazelhurst, referred to in the affidavit, was as follows:
    Received December 9, 1851, from William Deal, sheriff, twenty-one hundred and fifty-three 29-100 dollars, proceeds of sale, less costs, &c. Signed by him as attorney in fact for A. S. Letchworth, Isaac Sulger, and G. W. Thorn.
    Following was a receipt signed A. S. Letchworth, plaintiff’s attorney, for $4.62, “ my costs.” These receipts were on the sheriff’s docket entry of the case of Daniel Steinmetz v. Peter B. Fraley, 424 March Term, 1851. Fi. fa. Real debt $1000. Interest from September 25, 1850.

      A supplemental affidavit, made November 10, 1852, was as follows :
    Patrick Levy being duly sworn, says: That there is a defence to the claim in this case. That this affiant was the owner of the mortgaged premises, and sold them to John McGlensey by deed dated and executed the 5th day of October, 1852; and at the time of said sale it was agreed between this affiant and said John Mc-Glensey, that this affiant should defend the claim herein made, and bear its responsibility, and this defence is for and on behalf of this affiant, and the said, John McGlensey.

    All the facts stated in his former affidavit of defence, he believes to be true, and he believes that he will be able to prove them upon trial.
    Notwithstanding the affidavits, the Court directed judgment for plaintiff, as it was stated, for want of a sufficient affidavit of defence.

    Error was assigned to the entry of judgment.

      Phillips, for plaintiff in error.

      G. M. Wharton, and A. S. Letchworth, for defendant in error.
    On the part of the defendant in error, it was alleged that the affidavits were insufficient. 1. Because made by one who was not a party to the record. Levy was not a terre tenant. The terre tenant was not a party to the writ of scire facias, nor did it appear that notice was served upon him. By the 6th section of the Act of 1705, (1 Smith’s Laws 57,) the scire facias need be served only on the mortgagor, his heirs, executors, or administrators. Also cited 1 Watts 491, (Mather v. Clark); 4 Barr 80, 16 Ser. & R. 432, that it was not necessary to give notice to the terre tenant of the scire facias. The terre tenant might have petitioned the Court for leave to appear and defend (5 Barr 260,) but he did not do so. If he had no notice of the proceeding, he may not be bound by the judgment: 5 Watts 535; 1 Ser. & R. 540. It was said that, there being no affidavit of defence filed by the defendant or by any one in his behalf, and no appearance or defence by any one claiming as terre tenant, the plaintiff, under the Act of 1835, was entitled to judgment.
    2. It was further alleged that the affidavits of defence were insufficient, because the facts stated were inconclusive, as it did not appear that the plaintiff or his attorney received the plaintiff’s claim from the sheriff; for, as the plaintiff’s attorney receipted only for the costs, the proper inference should be that, the plaintiff had waived his claim upon the fund raised in favor of the other execution creditors.
   The opinion of the Court was delivered, January, 1854, by

Lewis, J.

This is a scire facias on a mortgage, and we understand the affidavit of defence to state that the goods of the mortgagor, exceeding the value of the debt, have been seized and sold on an execution issued on a judgment entered on a mortgage bond. The proceeds raised by the sheriff’s sale appear, from the affidavit, to be more than the debt; the money was duly received by the sheriff, and was paid by him to the attorney in fact of the plaintiff’s attorney; and the plaintiff in error, in his affidavit, adds that “ the debt has been paid.” It is true that another execution was in the sheriff’s hands, and that he sold under both; but the writ which issued for the mortgage debt was the first delivered to the sheriff.” It is also true that other executions came to the sheriff’s hands before the sale. But the sale was on the two first executions. In Hunt v. Beading, 12 Ser. & R. 41, it was held that, “ seizing goods in execution to the value of the debt is a discharge of all responsibility on the part of the debtor, and consequently a discharge of the judgment, and this whether the goods are sold or not; all further remedy being against the sheriff, who becomes exclusively liable, by the seizure." If this be the law, the affidavit discloses a full defence. The plaintiff below has seized and sold the debtor’s goods to the value of the debt on an execution issued for the same debt, and that execution is entitled, by its prior delivery to the sheriff, to receive the money which has been actually paid into the hands of the plaintiff’s attorney. A statement of these facts is sufficient to entitle the defendant to go to the jury. As it was not his business to prove them, it was sufficient to state them without production of the evidence from the records.

Patrick Levy was the owner of the mortgaged premises, and the proper terre tenant of the land at the time the scire facias was issued. He has since sold them to John McGlensey, under an agreement that the vendor should defend against the mortgage and bear its responsibility, and the affidavit is made by Levy for and on behalf of himself “ and the said John McGlensey.” That these persons would be prejudiced by the judgment is clear. That they are deeply interested in the result is most manifest. That the first has a just right, in some form, to relieve himself from liability on his warranty by resisting every step in the proceedings tending to charge him, cannot be denied. That the other has a right to object to an unnecessary slander of his title, by a sheriff’s sale for a debt already paid, seems equally free from doubt. Taking the case as stated in the affidavit, there is a just defence, and the parties proposing to make it are not strangers, nor intruders, without any interest to protect. Under such circumstances, the Court should take order for protecting their interests in some way. The judgment ought not to have been given for the plaintiff, when it appears from the affidavit of a party who would be prejudiced by it, that the debt has been already paid. In the construetion of these affidavits the justice of the case should not he lost sight of in the technicalities of judicial proceedings. Irreparable injury ought not to be permitted for want of a formal application by Levy to make himself a co-defendant in the action. His affidavit, and the facts contained in it, imply a wish, on his part, to be made a party to the record, and the Court, under the circumstances, ought to have made an order for the purpose. If he objected to such an order, this might have justified the disregard of his affidavit. But as the case stood, we think there was error in entering the judgment in favor of the plaintiff below.

Judgment reversed and procedendo awarded.


text:
    Morris versus Olwine.
    A creditor by bond and notes secured by a mortgage may have recourse, in the first instance, to the personal estate of the debtors which has been assigned for the benefit of creditors without preference; and though after an award by an auditor in his favor to a pro rata share of the personal estate, such a creditor, by direction of the Court, proceeded upon the mortgage and recovered the greater portion of his claims, it was Held, that he was still entitled to the said pro rata dividend on his whole claim, and was not limited to a pro rata share on his claim as reduced.
    Error to the Common Pleas, Philadelphia.

    The question involved in this case arose through exception to an auditor’s report on the accounts of John S. Twells, assignee for the benefit of creditors of Livingston & Lyman.

      Before the auditor, Morris & Co. preferred a claim by promissory note for above $700 ; and other creditors preferred claims exceeding $11,000. On these claims the auditor allowed a dividend of 8.26-100 per cent.
    John Tams also claimed a dividend on $20,000, and a dividend of 8.26-100 was also allowed, it amounting to $1650:08. Of the claim, $17,000 consisted of three bonds, dated 23d May, 1846, executed by Livingston & Lyman, which bonds had been assigned to said Tams. They were accompanied by a mortgage of same date with them, executed by said Livingston & Lyman on the William Penn Furnace, in Montgomery county, Pennsylvania; and $3000 consisted of three notes, dated 18th December, 1845, drawn by Charles A. Lyman, and guarantied by Livingston & Lyman, and which were also secured by a mortgage on said furnace, dated 23d May, 1846.
    After the report of the auditor was made, the Common Pleas, on 15th March, 1849, ordered that John Tams exhaust his remedies against the mortgaged premises; and that the sum of $1650.08, the amount of the dividend awarded to him, remain at interest in The Girard Life Insurance Company,—subject to the further order of the Court.
    Proceedings were accordingly had in Montgomery county, under the mortgage, and $17,938 was awarded to Jacob K. Olwine, residuary assignee of the mortgages.
    Afterwards, viz., on 24th December, 1852, it was objected in the Common Pleas of Philadelphia,, that Olwine, assignee of John Tams, ought not to be allowed the dividend of eight per cent, viz., $1650.08, on $20,000, but should receive a dividend of 8.26-100 on the sum of $2302, the balance of the claims which had been secured by the mortgage.
    Allison, J., decreed payment of the dividend of $1650.08, together with the interest which had accrued on it.
    It was afterwards agreed that the proceedings should be considered as a ease stated, and judgment to be entered thereon.
    It was assigned for error, that the Court erred in decreeing the paymént of $1650.08 and interest thereon, as before stated.

      Lewis, Shippen, and Mallery, were for exceptants or plaintiffs in error.
    It was contended that the creditor, whose claims were secured by the mortgages, was bound to have recourse to the mortgage in the first instance: Story’s Eq. sec. 559; Id. 643; 17 Vesey 520, Ex parte Kendall; 4 Johns. Ch. 20; 5 Harris 425, Kittera’s Estate.

      Cuyler, contrà.
   The opinion of the Court was delivered by

Lewis, J.

At the time of, and immediately before, the assignment for the benefit of creditors, those having judgments on, the real estate had not only a right, but the law imposed it upon them as a duty to resort to the personal estate as the primary fund for the payment of their debts. If that was sufficient for the purpose, the real estate was entitled to exoneration. This obligation may not exist where a creditor has two remedies, both of which may be pursued until he obtains full satisfaction; but the accumulation of remedies certainly does not diminish his rights. If a judgment creditor has a right to resort to the personal estate for the payment of his whole debt, without regard to his lien on the real estate, one who has a bond, which may be turned into a judgment, has the, same right; and that right is not impaired by any lien which he may have by mortgage on the land. One who has collateral, securities for his debt is not obliged to surrender or exhaust them as a prerequisite to the pursuit of his other remedies: Kittera’s Estate, 5 Karris 416. If this was the right of the ereditor before the assignment, it remained the same afterwards, except so far as if was changed by the instrument itself. It is not alleged that any preference was proposéd by the assignor, or that any condition was annexed to the mortgagee’s right to come upon the fund as a creditor for a pro rata distribution. The only change in his condition, produced by the assignment, is, that instead of resorting to an execution he must resort to the assignee. The rule applicable to his case, as stated in Shunk’s and Freedley’s Appeals, 2 Barr 309, is that “ lien creditors may have recourse to the personal estate as the primary fund, for their whole demand in the first instance, and subsequently to the land for the residue.” If the other creditors think the land is more than sufficient to discharge the liens, this may be ascertained in the way adopted by the Common Pleas; or they may, if they agree, discharge the liens by the application of the personal estate in the first instance, and then divide the proceeds of the real estate pro rata among themselves. They have no equity beyond this. A creditor who has collateral securities for his demand is not thereby deprived of his other remedies for its collection. In this case the dividend was ascertained and reported by the auditor before the debt was reduced by the application of the proceeds of the mortgaged premises ; and all that is at present decided is, that the subsequent reduction of the debt by the proceedings on the mortgage, does not deprive the creditor of the dividend thus previously ascertained.

The final decree of the Court of Common Pleas was correct, and it is therefore affirmed.

Decree affirmed.


text:
    Daniels & Smith versus Sanderson.
    1. In an appeal from the judgment of an alderman a narr. was filed and rule entered to plead in eight days or judgment. Ten days afterwards a plea in abatement was filed: Meld, that it was too late, and that such plea was properly stricken off and judgment entered.
    2. Where no application for relief appears to have been made in the Court below on the ground of want of notice of a rule to plead, in this Court notice of such rule will be presumed.
    Error to the Common Pleas, Philadelphia.

    This was an appeal from the judgment of an alderman in a suit on a book account, by John P. Sanderson v. William Daniels and Samuel B. Smith, and was entered to June Term, 1852.
    On 7th July, 1852, narr. was filed and rule to plead in eight days or judgment. July 17, 1852, plea in abatement filed to the nonjoinder of a third person, who was a copartner with the defendants. September 20, rule to show cause why the plea in abatement should not be stricken off and judgment entered for want of a plea. October 30, 1852, rule made absolute. December 6, 1852, rule entered to set aside the execution and let defendants into a defence. December 24, 1852, rule discharged.
    Error was assigned: 1st, to the entry of judgment. 4th. That the prothonotary had no right to assess the damages; and 5th. That the Court erred in not setting aside the fi. fa. and opening the judgment.

      Otterson and Sheppard, for plaintiffs in error.

      Porter and Greenbank, for defendant in error.
    On the part of the defendant in error it was contended, that all dilatory pleas must be pleaded at a preliminary stage of the suit (15 Ser. & R. 150), and ought to be put in within four days after declaration filed: 6 Ser. & R. 69; 9 Barr 447. Upon appeal from the judgment of a justice of the peace, the defendant cannot plead in abatement if he has neglected to-do so before the justice: 4 Watts 433, Hinckley v. Smith. If a plea in abatement be not filed in due time it may be treated as a nullity: 1 Troubat & Haly 387, 3d edition; 1 Term Rep. 277, Jennings v. Webb; 5 Id. 210; 7 Id. 298.
   The opinion of the Court was delivered by

Lewis, J.

By the English practice, if the declaration be delivered, or filed, and notice given, before the three last days of the term, a plea in abatement will be too late, unless filed on or before the fourth day after the delivery or notice. If the declaration be filed in vacation, or upon any of the three last days of the term, the defendant may plead in abatement within the first four days of the following term. This extension of time is given only upon getting a side bar rule for a special imparlance, which must be entered on the plea in making up the issue, and in practice it is usual to state it in the plea itself: 2 Arch. 1. In Stoever v. Gloninger, 6 Ser. & R. 69, it is said, that an ordinary plea in abatement must be put in within four days after the declaration has been delivered. If a defendant is under terms of pleading issuably, he must plead in chief to the merits, and a plea in abatement will not be regarded as an issuable plea: 8 B. & P. 171; 1 Barr 59; Barnes 263; 1 Chitty Pl. 506; 3 John. R. 259. If a defendant, under terms of pleading issuably, puts in a plea in abatement, the plaintiff may treat it as a nullity and sign judgment: 1 Chitty Pl. 506. Or if a defendant plead in abatement, after the time allowed by the rules or practice of the Court, the plaintiff may treat the plea as a nullity and sign judgment, although the rule to plead has not expired, or even though no rule to plead has been regularly given: 1 T. R. 689; 1 Arch. Pr. 1. In this case, the plea in abatement was filed, not only after the expiration of the four days from the filing of the declaration, but two days after the expiration of the time allowed by the rule to plead.

In this Court notice of the rule will be presumed. An injury arising from the want of it may be corrected in the Court of original jurisdiction. No application was made for relief on this ground. It was, therefore, perfectly correct to treat the plea in abatement as a nullity, and to sign judgment for default of a plea to the merits, in accordance with the requirement of the rule to plead.

Judgment affirmed.


text:
    Light’s Appeal.
    1. An appeal does not lie to any other account of an executor than the final account.
    2. Though there are several accounts they are all. treated as one, and on the hearing of the last, all the others are open for investigation.
    3. An executor, in the decree on the final account, may he charged with interest though he has had a previous account confirmed in which he was charged with the principal without interest.
    4. But when parties prefer exceptions to a partial account and withdraw them before its confirmation, they have no right to prefer the same exceptions to a subsequent account.
    5. But such withdrawal will not prevent other parties from making the same exceptions.
    6. Mere notice that an account is filed will not preclude a party from excepting to a subsequent account.
    7. The receipt by one, of his share of the balance decreed on the first account, to which he filed no exception, will not preclude him from excepting, to a subsequent account, that interest should be charged on money a part of which the exceptor had received.
    Appeal from the decree of the Orphans’ Court, Philadelphia.

    There appeared to be two appeals in this proceeding, by persons claiming under the will of Jacob Haars, deceased. One of them was by Michael Light, David Light, and others; and the other was by John Landis, and by the same Michael Light, David Light, and others, who did not appear to have been named as appellants in the other appeal.
    Jacob Haars died in January, 1845, leaving a will in which he directed the rest and residue of his estate to be equally divided between his brother John Landis, and his brother Abraham Landis, and his sister Elizabeth, the wife of John Light, the lawful children of his late brother David Landis, equally,” except his sons David Landis and Henry Landis.
    The first account of Freeman Scott, the executor of the will, was filed about 28th December, 1846, and was soon after referred to an auditor. In this account the accountant did not charge himself with any interest on moneys in his hands. Exceptions to the report of the auditor were filed on the part of the children of David, Landis, and for John Landis. One of the exceptions was, that the auditor had not charged the accountant with interest on the balance of above $40,000 in his hands from the 27th January, 1846, being one year after the probate of the will, until the report made.
    2. That he had not charged him with interest upon the balance in his hands received during the year succeeding the 27th January, 1846, being $6002.33. The 3d exception was to the commissions’ allowed. The 4th was to the credit of debts said to be doubtful.
    These exceptions were subsequently withdrawn, and the report was confirmed without further objection.
    The report of the auditor having been confirmed, the matter was referred to him for distribution of the sum which was for distribution, viz., $50,921.45.
    The auditor reported distribution, which was said to be incomplete. Exceptions were filed for the executor, and also for certain of the Lights. The exceptions referred to the persons who were to receive, and not to the amount for distribution. They led to a controversy as to the parties entitled, and their shares; which was finally compromised by the Lights and another, who claimed a part of their share, and whose claim, it was said, created the chief difficulty. Prior to such settlement, the sum of $8364.86 was awarded to the Lights, and was ordered to be paid to them by the executor. To enforce the order an attachment against the executor was ordered, and the money was ultimately paid.
    Whilst these proceedings were pending, the executor, upon citation, submitted a second account, to which the counsel for the Lights filed exceptions, inter alia; That the accountant had not debited himself with the interest on large sums of money received by him since the death of the testator, and appearing in the first and second accounts; nor with the profits arising to the executor from the use of the same. Further; because the said first account, from which and the auditor’s report the balance results, is erroneous, as, it was said, appeared from specifications annexed.
    The second account was referred to an auditor for adjustment. The counsel for the Lights claimed to charge the executor with interest and profit upon the sums awarded and distributed under the first account and not included in the second account. The auditor refused so to charge the executor, alleging that this would be to open the first account which had been decreed upon. It was also desired by the counsel of the said parties, to interrogate the executor as to his investment and disposition of the moneys included in the first account, but the auditor refused to permit such examination.
    To the report of the auditor exception was taken on part of the appellants: 1st, To his refusal to allow the first account to be opened for the purpose of charging the executor with interest. 2d, For overruling the questions proposed to be put to the executor.
    Afterwards the Court dismissed the exceptions, and the report was confirmed absolutely. Subsequently this appeal was taken.
    Exception was taken, 1. To the refusal to permit the first account to be opened for the purpose of charging the executor with interest. 2. To the' overruling of the questions proposed to be put to the executor.
    On the part of the appellants it was contended that each account of an executor was a part of one whole; and that it is only a decree on the final account which refers the party to a bill of review o.r appeal: 14 Ser. & R. 396, McGrew’s Appeal; 3 Rawle 246, Walker’s Estate; 1 Jones 443, Chambers’s Appeal; 2 Barr 432, Bower’s Appeal.
    Where a party has received money to which he is entitled, such receipt does not estop him from a further pursuit of his rights: 1 Harris 370. In the present case no receipt in full was given.

      Miller, for appellants.

      Perkins, for appellee.
   The opinion of the Court was delivered, January 10, 1854, by

Black, C. J.

The executor of Jacob Haars, deceased, filed a partial account of his administration, which was referred to an auditor to be examined. Some of the distributees (not the present appellants) excepted to the report because the executor was not charged with- interest on the fund in ’his hands. These exceptions were afterwards withdrawn and the report confirmed. An auditor was then appointed to make distribution, and he appears to have been attended by all the parties. After much controversy between the different claimants, a decree of distribution was made, and the appellants enforced payment of their share by attachment. Next, the executor filed his final account, which was excepted to by the. appellants on the ground that no interest was charged on the money which the first account showed the executor to have had. The auditor and the Orphans’ Court overruled this exception, and refused to inquire whether the accountant had used the fund and made profits out of it, because it was not, in their opinion, an open question, but had been conclusively settled by the decree in the first account. This appeal is taken- to test the correctness of that decision.

It is well established that an appeal does not lie to the confirmation of any except the last administration account. There is hut one final -decree between the executor and the distributees or creditors, all others being merely interlocutory. However numerous the accounts are, the whole series are treated as one, and the last opens all the rest. An executor may be charged with interest on a final settlement though he has, in a previous account which is already confirmed, charged himself with the principal without interest. Whatever has been improperly omitted from any of the previous accounts, whether charges or credits, can he put into the final one. But the right of a distributee to except to a partial as well as to a final account is incontestable. When this is done, the subject-matter of the exception must he fully heard, and the liability of the accountant, with reference thereto, must he accurately ascertained. Of course, this is not a mere idle ceremony which concludes nothing. The duty of the Court to hear implies the power to decree authoritatively; and therefore the same dispute cannot he renewed again before the same tribunal, unless by hill of review. When the parties who are interested in surcharging or falsifying the accounts come into Court with exceptions to a partial account, and afterwards solemnly and unconditionally withdraw them, they should not be permitted to make the same exceptions again to a subsequent account. Such withdrawal of exceptions, and permitting the account to be confirmed, is an admission of record that the account is right in the particulars to which the exceptions relate. It is, and ought to he, equivalent to a retraxit in a common law action. But to give if that effect, it must be the act of all the parties interested. Certainly one person who has an interest cannot, by filing and withdrawing an exception, estop another who has a similar but a distinct interest.

These principles are decisive of this case. The appellants, by an exception to the final account, say that the executor ought to he charged with interest on upwards of fifty thousand dollars, which he had in his hands and used for his own profit and advantage during a period of several years. If this he true, the exception ought to have been sustained. We are bound to investigate, the justice of the claim, and to hear the proofs which may be offered in support of it. The appellants never did, nor omitted to do, anything which should prevent them from being heard. They-filed no exceptions to the first account, and the question now’ raised was never decided by the Court on the exceDtions filed by. others. As to them the confirmation was ex parte. They had notice, probably saw the account, and might have appeared if they had thought proper. But that is nothing; for if notice to the parties would make the confirmation of a partial account conclusive, then all would he conclusive, and every authority on the subject would be overthrown. They demanded and took the sums respectively due to them, on the distribution of what the first account showed to be ready. But this was given to and received by them expressly as a partial payment, and not as their shares of the whole estate. The receipt of the principal, to which they had an acknowledged right, is no reason why they should not demand the interest if they have an equal right to that. Receiving part of a just claim,-if not accepted in full satisfaction, is no bar to the recovery of the balance. In many, indeed in mostreases, such evidence makes very strongly the other way. Here, however, it had no effect at all.

There is another view of the case. If the present appellants had filed exceptions to the first account, and the Orphans’ Court had then decided the present question against them, that Court might have been right enough in refusing to decide it over; but would not an appeal to the final decree bring up the whole case before us ? And would it not be our duty to correct all the errors; those which were made in the interlocutory decrees as well as others ? The party against whom such a matter is decided by the Orphans’ Court is entitled to his appeal, let the decision be made when it may. If it he heard and decided when a partial account is confirmed, he cannot have his appeal then. . It must be, therefore, that he can have it reviewed after the final decree.

I will only add, by way of preventing future misconstruction, that it is in consequence of very peculiar circumstances, that we have determined to treat the two appeals in this estate as separate and'distinct cases. The decree we have already made on the subject of the executor’s commissions settles that without affecting the point made here. But let no man presume on this as a precedent.

The decree of the Orphans’ Court is reversed, and the accounts of the appellee, as executor of Jacob Haars, deceased, are referred to the auditor of this Court, who is directed to hear the parties, and to report whether the executor should be charged with interest or profits on money of the estate, and if so, to what amount.


author: Woodward, J.

text:
    Commonwealth ex rel. McCabe.

      1. Actions of debt were brought after the passage of the Act of 12th July, 1842 abolishing imprisonment for debt, and subsequently, on affidavits filed alleging that the debts had been fraudulently contracted, warrants of arrest were granted; and afterwards by the same Court, having jurisdiction of the matter, warrants of commitment were issued, in the latter being recited warrants of arrest founded on satisfactory proof that the debtor had fraudulently contracted the debts: Held, that these were sufficient grounds for his custody.
    2. If there was enough in the warrants of arrest to identify the suits on which they were issued, this was a substantial compliance with the requisition of the Act briefly to set forth the complaint.

    3. If, however, the warrants were defective in setting out the cause of action, it was too late to take the objection for the first time in this Court; it should have been taken on habeas corpus immediately after the arrest and before the hearing. His retention in custody is not under the warrants of arrest but under the commitments, and he is not entitled to discharge on habeas corpus afterwards issued from this Court.
    4. The preliminary proofs in the case can be brought up for review in this Court only on writ of error or certiorari. Belief cannot be granted in this Court on habeas corpus.

    5. It is not material that fraud was not alleged in the declarations on the notes sued upon. The Act of 1842 does not require that fraud he alleged in the pleadings, but in the affidavit on which the warrant of arf est is grounded and in the proof submitted to the judge afterwards on the hearing. In this case, however, it appeared from 'the paper-book that the promissory notes sued upon were given for the goods alleged to have been fraudulently obtained.
    This was the case of a writ of habeas corpus, issued at the instance of Michael W. McCabe v. J. M. Christopher, keeper of the debtor’s apartment in Philadelphia.
    The return do the writ was that the relator was detained by commitments, or warrants of arrest, issued by Judge Hare, of the District Court, dated July 2, 1853, in case of Marchand v. McCabe, June Term, 1853, 626, debt $1120.81; and in six other cases, the claims in all exceeding $7000.
    In the, first six of the warrants it was stated, “ there is a debt or demand due, for which the defendant, according to the provisions of the 1st section of the Act of July 12, 1842, could not be arrested nor imprisoned.” Also, that there is proof that he fraudulently contracted the debt, and fraudulently incurred the obligation respecting which the suit is brought, &c.
    In No. 7, it is described thus:—“ The defendant is indebted to the plaintiff in the sum of $1149.30, for goods sold and delivered by said plaintiff to said defendant, and that he fraudulently contracted the said debt,” &e.
    In No. 1, Marchand’s suit, the affidavit was for goods sold and delivered, and debt thus fraudulently contracted, never intending to pay for them, &c., &c. In the narr., first count, it was alleged that in consideration that plaintiff would sell the goods, defendant agreed to give a good note, &c.: breach, that he did not, &c. Second count same as first, and that he promised to take home to his place of business, and sell them in the usual manner: breach, that he did not, &c. Another count on note, and common counts. Tried before jury. All counts withdrawn, except one upon note, and on that verdict for plaintiff, for $419.65.
    In No. 7, Scott’s suit, the narr. was on the common counts. Affidavit for goods sold, &c. At the trial all the counts were withdrawn, and a new one on note was substituted. Verdict, $300.76.
    Neither of the warrants was set out in the paper-books. But, on the part of the complainant, it was alleged that the warrants were defective in not stating any cause of action with certainty; that it did not describe the cause of action, but merely alleged that it is such as was requisite for the purpose of jurisdiction.
    In the Act of 12th July, 1842, abolishing imprisonment for debt, &c., it is provided that it shall be the duty of the judge to issue a warrant of arrest in the form following, to wit, &c.: “ Whereas complaint has this day been made before me, on the oath or affirmation” (inserting the name of the party making it), “ setting forth,” (here briefly set forth the complaint). “These are therefore to command you to arrest,” &c.

      H. M. Phillips was for the relator.
    It was said that the plaintiffs declared for causes of action different from those stated in the warrants and in the affidavits on which they were founded: and 7 Taunton 304, was cited for the principle that bail are not liable, on their recognisance, for any cause of action which is not stated in the affidavit whereon the defendant is held to bail. Also, cited 4 Dowl. & Ry. 619; 1 Tidd’s Pr. 243; 2 Saunders 72 a; 3 Wilson 61; 7 Term Rep. 80; 2 H. Bl. 278. If the declaration vary from the affidavit to hold to bail in the cause of action, the bail is discharged: 8 T. Rep. 27; 6 Id. 363.

      Perkins, for creditors.
    It was stated, viz.: This was an application by a debtor to be discharged from imprisonment on technical grounds without surrendering his property. The affidavits which accompanied the warrant of arrest, show that the relator obtained goods to an amount of upwards of $20,000—immediately sent them to auction—sold them on time at a sacrifice of twenty-five per cent, or more—got the auctioneers’ notes cashed at the rate of one per cent, a month, and fled with the proceeds to the United States. The charge in these cases was, that the defendant, in the words of the Act of Assembly, fraudulently contracted the debts and incurred the obligations respecting which the suits were

      brought. The notes and the bills of goods for -which they were given were one and the same debt, and one and the same obligation; a verdict and judgment on one, is an answer to a suit on the other.
    The defendant is held under the commitments of the judge agreeably to the Act of 12th June, 1842, section 8, and not on the warrants of arrest. They have performed their office. By that section the judge before whom a defendant is brought, if satisfied that the allegations of the complainant are substantiated, and that the party arrested has done, or is about to do, any one of the acts specified in the 3d section of the Act, he shall issue a commitment under his hand, reciting the facts of the case, and directing that such party be committed to the jail of the county in which such hearing is had, to be there detained until he shall be discharged by law, and such party shall be committed and detained accordingly, unless defendant pay or secure the debt, (section 9;) or give bond not to remove or assign his property, (section 10;) or to take the benefit of the Insolvent Laws, (section 11.) The 12th section states the effect of such commitment, and how defendant may be discharged from arrest.
    An immaterial variance between the cause of action stated in the narr. and in the warrants, or in the affidavits on which the warrants are founded, is of no consequence: 9 Watts 43, Kelly v. Commonwealth; 7 Barr 383, Devereux v. Esling; 3 Vermont 435, Wright v. Brownell.
   The opinion of the Court was delivered by

Woodward, J.

It appears by the return to the writ of habeas corpus that the prisoner is detained in custody by virtue of warrants of commitment, issued by Judge Hare of the District Court, in seven civil causes which were commenced against the prisoner in that Court to June Term, 1853, by seven of his creditors.

Since the commitment two of the cases, Stewart’s and Wilfred’s, have terminated in the defendant’s favor, one by non pros, and the other by discontinuance, and as to these he is entitled to his discharge.

But as to the other five, we see no ground for discharging him. The debts for which the suits were brought were such as exempt the debtor from,imprisonment, under the 1st section of the Act of 12th July, 1842; but after the institution of the actions, proceedings were had under the subsequent sections of the Act, which resulted in the commitments before us. The judge had jurisdiction both of the actions and of the subsidiary proceedings. And the warrants of commitment show the proceedings to have been in accordance with the provisions of the 3d, 6th, 7th, and 8th sections of the Act of Assembly. They recite warrants of arrest founded on satisfactory proof that the said Michael William McCabe fraudulently contracted the debts and obligations, respecting which the actions had been brought; and that after his arrest the evidence and proofs of the parties were heard, which satisfied the judge that the debts had been fraudulently contracted. These were adequate grounds for commanding him into custody.

It is alleged that the warrants of arrest did not pursue the form prescribed by the Act of Assembly, in that the complaint was not sufficiently set out. From the meagre extract with which he has favored us, it is apparent there was enough in the warrants to identify the suits in which they issued, and this was substantial compliance with the Act.

If, however, the warrants were defective in the point alleged, it seems to me it is too late for the defendant to take advantage of their infirmity now. The object of them was to arrest and bring him to the hearing prescribed in the 6th section; and if they were not well issued, he should have taken his habeas corpus immediately on his arrest, and before the hearing. He permitted them to accomplish their purpose without objection. He is no longer holden by virtue of them. An adjudication, in the nature of a final decree, so far at least as the fraud is concerned, has passed against him, and he is now held by process issued therein. Where a party is in custody by virtue of a final decree or judgment, or process thereon, of a Gourt having jurisdiction, no inquiry into the process which led to the decree is to be had, and no relief administered on habeas corpus: 2 Kent’s Com. 30. A writ of error or certiorari can alone bring up the preliminary process for review. Equally unavailing are the suggestions that the delarations filed in some of the suits count on promissory notes and allege no fraud. It is not in the pleadings of the parties that the Act of 1842 requires the fraud to be alleged, but in the affidavit which grounds the warrant of arrest, and in the proof s submitted to the judge on its return. The fraud may or may not be alleged in the narr., but it must be in the affidavit; and all the subsequent proceedings, though they relate to the debt in suit, are founded on the allegations in the affidavit, and not on what is set out in the declaration.

And moreover, if we are to take what is contained in the paper-books as the record in these cases, there is proof before us that the promissory notes in suit were given for the goods alleged to have been fraudulently obtained, so that in point of fact there is harmony between the record and the affidavit.

On the whole, we are of opinion that the charge that the defendant “ fraudulently contracted the debts and incurred the obligations respecting which the suits were brought,” was sufficiently alleged; and having been proved to the satisfaction of a judge having jurisdiction, who in due form committed him, he must be remanded, and seek the relief desired by a surrender of his property, or by an application for the benefit of the insolvent laws, agreeably to the Act of Assembly.

The prisoner is remanded.